Cases

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
A.M. No. 10-7-17-SC October 15, 2010
IN THE MATTER OF THE CHARGES OF PLAGIARISM, ETC., AGAINST ASSOCIATE JUSTICE MARIANO C. DEL
CASTILLO.
DECISION
PER CURIAM:
This case is concerned with charges that, in preparing a decision for the Court, a designated member plagiarized the
works of certain authors and twisted their meanings to support the decision.
The Background Facts
Petitioners Isabelita C. Vinuya and about 70 other elderly women, all members of the Malaya Lolas Organization, filed
with the Court in G.R. No. 162230 a special civil action of certiorari with application for preliminary mandatory injunction
against the Executive Secretary, the Secretary of Foreign Affairs, the Secretary of Justice, and the Office of the Solicitor
General.
Petitioners claimed that in destroying villages in the Philippines during World War II, the Japanese army systematically
raped them and a number of other women, seizing them and holding them in houses or cells where soldiers repeatedly
ravished and abused them.
Petitioners alleged that they have since 1998 been approaching the Executive Department, represented by the
respondent public officials, requesting assistance in filing claims against the Japanese military officers who established
the comfort women stations. But that Department declined, saying that petitioners’ individual claims had already been fully
satisfied under the Peace Treaty between the Philippines and Japan.
Petitioners wanted the Court to render judgment, compelling the Executive Department to espouse their claims for official
apology and other forms of reparations against Japan before the International Court of Justice and other international
tribunals.
On April 28, 2010, the Court rendered judgment dismissing petitioners’ action. Justice Mariano C. del Castillo wrote the
decision for the Court. The Court essentially gave two reasons for its decision: it cannot grant the petition because, first,
the Executive Department has the exclusive prerogative under the Constitution and the law to determine whether to
espouse petitioners’ claim against Japan; and, second, the Philippines is not under any obligation in international law to
espouse their claims.
On June 9, 2010, petitioners filed a motion for reconsideration of the Court’s decision. More than a month later on July 18,
2010, counsel for petitioners, Atty. Herminio Harry Roque, Jr., announced in his online blog that his clients would file a
supplemental petition "detailing plagiarism committed by the court" under the second reason it gave for dismissing the
petition and that "these stolen passages were also twisted to support the court’s erroneous conclusions that the Filipino
comfort women of World War Two have no further legal remedies." The media gave publicity to Atty. Roque’s
announcement.
On July 19, 2010, petitioners filed the supplemental motion for reconsideration that Atty. Roque announced. It accused
Justice Del Castillo of "manifest intellectual theft and outright plagiarism"1 when he wrote the decision for the Court and of
"twisting the true intents of the plagiarized sources … to suit the arguments of the assailed Judgment."2 They charged
Justice Del Castillo of copying without acknowledgement certain passages from three foreign articles:
a. A Fiduciary Theory of Jus Cogens by Evan J. Criddle and Evan Fox-Descent, Yale Journal of International Law
(2009);
b. Breaking the Silence: Rape as an International Crime by Mark Ellis, Case Western Reserve Journal of
International Law (2006); and
c. Enforcing Erga Omnes Obligations by Christian J. Tams, Cambridge University Press (2005).
Petitioners claim that the integrity of the Court’s deliberations in the case has been put into question by Justice Del
Castillo’s fraud. The Court should thus "address and disclose to the public the truth about the manifest intellectual theft
and outright plagiarism"3 that resulted in gross prejudice to the petitioners.
Because of the publicity that the supplemental motion for reconsideration generated, Justice Del Castillo circulated a letter
to his colleagues, subsequently verified, stating that when he wrote the decision for the Court he had the intent to attribute
all sources used in it. He said in the pertinent part:
It must be emphasized that there was every intention to attribute all sources, whenever due. At no point was there ever
any malicious intent to appropriate another’s work as our own. We recall that this ponencia was thrice included in the
Agenda of the Court en banc. It was deliberated upon during the Baguio session on April 13, 2010, April 20, 2010 and in
Manila on April 27, 2010. Each time, suggestions were made which necessitated major revisions in the draft. Sources
were re-studied, discussions modified, passages added or deleted. The resulting decision comprises 34 pages with 78
footnotes.
xxxx
As regards the claim of the petitioners that the concepts as contained in the above foreign materials were "twisted," the
same remains their opinion which we do not necessarily share. 4
On July 27, 2010, the Court En Banc referred the charges against Justice Del Castillo to its Committee on Ethics and
Ethical Standards, chaired by the Chief Justice, for investigation and recommendation. The Chief Justice designated
retired Justice Jose C. Vitug to serve as consultant of the Committee. He graciously accepted.
On August 2, 2010, the Committee directed petitioners to comment on Justice Del Castillo’s verified letter. When this was
done, it set the matter for hearing.
In the meantime, on July 19, 2010, Evan Criddle wrote on his blog that he and his co-author Evan Fox-Descent (referred
to jointly as Criddle-Descent) learned of alleged plagiarism involving their work but Criddle’s concern, after reading the
supplemental motion for reconsideration, was the Court’s conclusion that prohibitions against sexual slavery are not jus
cogens or internationally binding norms that treaties cannot diminish.
On July 23, 2010, Dr. Mark Ellis wrote the Court expressing concern that in mentioning his work, the Court "may have
misread the argument [he] made in the article and employed them for cross purposes." Dr. Ellis said that he wrote the
article precisely to argue for appropriate legal remedy for victims of war crimes.
On August 8, 2010, after the referral of the matter to the Committee for investigation, the Dean of the University of the
Philippines (U.P.) College of Law publicized a Statement from his faculty, claiming that the Vinuya decision was "an
extraordinary act of injustice" and a "singularly reprehensible act of dishonesty and misrepresentation by the Highest
Court of the land." The statement said that Justice Del Castillo had a "deliberate intention to appropriate the original
authors’ work," and that the Court’s decision amounted to "an act of intellectual fraud by copying works in order to mislead
and deceive."5
On August 18, 2010 Mr. Christian J. Tams wrote Chief Justice Renato C. Corona that, although relevant sentences in the
Court’s decision were taken from his work, he was given generic reference only in the footnote and in connection with a
citation from another author (Bruno Simma) rather than with respect to the passages taken from his work. He thought that
the form of referencing was inappropriate. Mr. Tams was also concerned that the decision may have used his work to
support an approach to erga omnes concept (obligations owed by individual States to the community of nations) that is
not consistent with what he advocated.
On August 26, 2010, the Committee heard the parties’ submissions in the summary manner of administrative
investigations. Counsels from both sides were given ample time to address the Committee and submit their evidence. The
Committee queried them on these.
Counsels for Justice Del Castillo later asked to be heard with the other parties not in attendance so they could make
submissions that their client regarded as sensitive and confidential, involving the drafting process that went into the
making of the Court’s decision in the Vinuya case. Petitioners’ counsels vigorously objected and the Committee sustained
the objection. After consulting Justice Del Castillo, his counsels requested the Committee to hear the Justice’s court
researcher, whose name need not be mentioned here, explain the research work that went into the making of the decision
in the Vinuya case. The Committee granted the request.
The researcher demonstrated by Power Point presentation how the attribution of the lifted passages to the writings of
Criddle-Descent and Ellis, found in the beginning drafts of her report to Justice Del Castillo, were unintentionally deleted.
She tearfully expressed remorse at her "grievous mistake" and grief for having "caused an enormous amount of suffering
for Justice Del Castillo and his family."6
On the other hand, addressing the Committee in reaction to the researcher’s explanation, counsel for petitioners insisted
that lack of intent is not a defense in plagiarism since all that is required is for a writer to acknowledge that certain words
or language in his work were taken from another’s work. Counsel invoked the Court’s ruling in University of the Philippines
Board of Regents v. Court of Appeals and Arokiaswamy William Margaret Celine,7 arguing that standards on plagiarism in
the academe should apply with more force to the judiciary.
After the hearing, the Committee gave the parties ten days to file their respective memoranda. They filed their memoranda
in due course. Subsequently after deliberation, the Committee submitted its unanimous findings and recommendations to
the Court.
The Issues
This case presents two issues:
1. Whether or not, in writing the opinion for the Court in the Vinuya case, Justice Del Castillo plagiarized the
published works of authors Tams, Criddle-Descent, and Ellis.
2. Whether or not Justice Del Castillo twisted the works of these authors to make it appear that such works
supported the Court’s position in the Vinuya decision.
The Court’s Rulings
Because of the pending motion for reconsideration in the Vinuya case, the Court like its Committee on Ethics and Ethical
Standards will purposely avoid touching the merits of the Court’s decision in that case or the soundness or lack of
soundness of the position it has so far taken in the same. The Court will deal, not with the essential merit or
persuasiveness of the foreign author’s works, but how the decision that Justice Del Castillo wrote for the Court
appropriated parts of those works and for what purpose the decision employed the same.
At its most basic, plagiarism means the theft of another person’s language, thoughts, or ideas. To plagiarize, as it is
commonly understood according to Webster, is "to take (ideas, writings, etc.) from (another) and pass them off as one’s
own."8 The passing off of the work of another as one’s own is thus an indispensable element of plagiarism.
The Passages from Tams
Petitioners point out that the Vinuya decision lifted passages from Tams’ book, Enforcing Erga Omnes Obligations in
International Law (2006) and used them in Footnote 69 with what the author thought was a mere generic reference. But,
although Tams himself may have believed that the footnoting in this case was not "an appropriate form of
referencing,"9 he and petitioners cannot deny that the decision did attribute the source or sources of such passages.
Justice Del Castillo did not pass off Tams’ work as his own. The Justice primarily attributed the ideas embodied in the
passages to Bruno Simma, whom Tams himself credited for them. Still, Footnote 69 mentioned, apart from Simma, Tams’
article as another source of those ideas.
The Court believes that whether or not the footnote is sufficiently detailed, so as to satisfy the footnoting standards of
counsel for petitioners is not an ethical matter but one concerning clarity of writing. The statement "See Tams, Enforcing
Obligations Erga Omnes in International Law (2005)" in the Vinuya decision is an attribution no matter if Tams thought
that it gave him somewhat less credit than he deserved. Such attribution altogether negates the idea that Justice Del
Castillo passed off the challenged passages as his own.
That it would have been better had Justice Del Castillo used the introductory phrase "cited in" rather than the phrase
"See" would make a case of mere inadvertent slip in attribution rather than a case of "manifest intellectual theft and
outright plagiarism." If the Justice’s citations were imprecise, it would just be a case of bad footnoting rather than one of
theft or deceit. If it were otherwise, many would be target of abuse for every editorial error, for every mistake in citing
pagination, and for every technical detail of form.
The Passages from Ellis

and Criddle-Descent
Petitioners also attack the Court’s decision for lifting and using as footnotes, without attribution to the author, passages
from the published work of Ellis. The Court made the following statement on page 27 of its decision, marked with Footnote
65 at the end:
We fully agree that rape, sexual slavery, torture, and sexual violence are morally reprehensible as well as legally
prohibited under contemporary international law. 65 xxx
Footnote 65 appears down the bottom of the page. Since the lengthy passages in that footnote came almost verbatim
from Ellis’ article,10 such passages ought to have been introduced by an acknowledgement that they are from that article.
The footnote could very well have read:
65 In an article, Breaking the Silence: Rape as an International Crime, Case Western Reserve Journal of International
Law (2006), Mark Ellis said: The concept of rape as an international crime is relatively new. This is not to say that rape
has never been historically prohibited, particularly in war. But modern-day sensitivity to the crime of rape did not emerge
until after World War II. In the Nuremberg Charter, the word rape was not mentioned. The article on crimes against
humanity explicitly set forth prohibited acts, but rape was not mentioned by name. (For example, the Treaty of Amity and
Commerce between Prussia and the United States provides that in time of war all women and children "shall not be
molested in their persons." The Treaty of Amity and Commerce, Between his Majesty the King of Prussia and the United
States of America, art. 23, Sept. 10, 1785, U.S.-Pruss., 8 Treaties & Other Int'l Agreements Of The U.S. 78, 85. The 1863
Lieber Instructions classified rape as a crime of "troop discipline." (Mitchell, The Prohibition of Rape in International
Humanitarian Law as a Norm of Jus cogens: Clarifying the Doctrine, 15 Duke J. Comp. Int’l. L. 219, 224). It specified rape
as a capital crime punishable by the death penalty (Id. at 236). The 1907 Hague Convention protected women by
requiring the protection of their "honour." ("Family honour and rights, the lives of persons, and private property, as well as
religious convictions and practice, must be respected." Convention (IV) Respecting the Laws & Customs of War on Land,
art. 46, Oct. 18, 1907. General Assembly resolution 95 (I) of December 11, 1946 entitled, "Affirmation of the Principles of
International Law recognized by the Charter of the Nürnberg Tribunal"; General Assembly document A/64/Add.1 of 1946;
See Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, Aug. 8, 1945, 59
Stat. 1544, 82 U.N.T.S. 279. Article 6(c) of the Charter established crimes against humanity as the following:
CRIMES AGAINST HUMANITY: namely, murder, extermination, enslavement, deportation, and other inhumane acts
committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds
in execution of or in connection with any crime within the Jurisdiction of the Tribunal, whether or not in violation of the
domestic law of the country where perpetrated.
The Nuremberg Judgment did not make any reference to rape and rape was not prosecuted. (Judge Gabrielle Kirk
McDonald, The International Criminal Tribunals Crime and Punishment in the International Arena,7 ILSA J. Int’l. Comp. L.
667, 676.) However, International Military Tribunal for the Far East prosecuted rape crimes, even though its Statute did
not explicitly criminalize rape. The Far East Tribunal held General Iwane Matsui, Commander Shunroku Hata and Foreign
Minister Hirota criminally responsible for a series of crimes, including rape, committed by persons under their authority.
(The Tokyo Judgment: Judgment Of The International Military Tribunal For The Far East 445-54 (1977).
The first mention of rape as a specific crime came in December 1945 when Control Council Law No. 10 included the term
rape in the definition of crimes against humanity. Law No. 10, adopted by the four occupying powers in Germany, was
devised to establish a uniform basis for prosecuting war criminals in German courts. (Control Council for Germany, Law
No. 10: Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Against Humanity, Dec. 20, 1945, 3
Official Gazette Control Council for Germany 50, 53 (1946))
The 1949 Geneva Convention Relative to the Treatment of Prisoners of War was the first modern-day international
instrument to establish protections against rape for women. Geneva Convention Relative to the Protection of Civilian
Persons in Time of War, Aug. 12, 1949, art. 27, 6 U.S.T. 3316, 75 U.N.T.S. 287 (entry into force Oct. 20, 1950)
[hereinafter Fourth Geneva Convention].Furthermore, the ICC, the ICTY, and the International Criminal Tribunal for
Rwanda (ICTR) have significantly advanced the crime of rape by enabling it to be prosecuted as genocide, a war crime,
and a crime against humanity.
But, as it happened, the acknowledgment above or a similar introduction was missing from Footnote 65.
Next, petitioners also point out that the following eight sentences and their accompanying footnotes appear in text on
pages 30-32 of the Vinuya decision:
xxx 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.711avvphi1
Early strains of the jus cogens doctrine have existed since the 1700s,72 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.73 The recognition of jus cogens gained even more force in the 1950s and 1960s with the ILC’s preparation of the
Vienna Convention on the Law of Treaties (VCLT).74 Though there was a consensus that certain international norms had
attained the status of jus cogens,75 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."76 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."77 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
Admittedly, the Vinuya decision lifted the above, including their footnotes, from Criddle-Descent’s article, A Fiduciary
Theory of Jus Cogens.11 Criddle-Descent’s footnotes were carried into the Vinuya decision’s own footnotes but no
attributions were made to the two authors in those footnotes.
The Explanation
Unless amply explained, the above lifting from the works of Ellis and Criddle-Descent could be construed as plagiarism.
But one of Justice Del Castillo’s researchers, a court-employed attorney, explained how she accidentally deleted the
attributions, originally planted in the beginning drafts of her report to him, which report eventually became the working
draft of the decision. She said that, for most parts, she did her research electronically. For international materials, she
sourced these mainly from Westlaw, an online research service for legal and law-related materials to which the Court
subscribes.
In the old days, the common practice was that after a Justice would have assigned a case for study and report, the
researcher would source his materials mostly from available law books and published articles on print. When he found a
relevant item in a book, whether for one side of the issue or for the other, he would place a strip of paper marker on the
appropriate page, pencil mark the item, and place the book on his desk where other relevant books would have piled up.
He would later paraphrase or copy the marked out passages from some of these books as he typed his manuscript on a
manual typewriter. This occasion would give him a clear opportunity to attribute the materials used to their authors or
sources.
With the advent of computers, however, as Justice Del Castillo’s researcher also explained, most legal references,
including the collection of decisions of the Court, are found in electronic diskettes or in internet websites that offer virtual
libraries of books and articles. Here, as the researcher found items that were relevant to her assignment, she downloaded
or copied them into her "main manuscript," a smorgasbord plate of materials that she thought she might need. The
researcher’s technique in this case is not too far different from that employed by a carpenter. The carpenter first gets the
pieces of lumber he would need, choosing the kinds and sizes suitable to the object he has in mind, say a table. When
ready, he would measure out the portions he needs, cut them out of the pieces of lumber he had collected, and construct
his table. He would get rid of the scraps.
Here, Justice Del Castillo’s researcher did just that. She electronically "cut" relevant materials from books and journals in
the Westlaw website and "pasted" these to a "main manuscript" in her computer that contained the issues for discussion
in her proposed report to the Justice. She used the Microsoft Word program.12 Later, after she decided on the general
shape that her report would take, she began pruning from that manuscript those materials that did not fit, changing the
positions in the general scheme of those that remained, and adding and deleting paragraphs, sentences, and words as
her continuing discussions with Justice Del Castillo, her chief editor, demanded. Parenthetically, this is the standard
scheme that computer-literate court researchers use everyday in their work.
Justice Del Castillo’s researcher showed the Committee the early drafts of her report in the Vinuya case and these
included the passages lifted from the separate articles of Criddle-Descent and of Ellis with proper attributions to these
authors. But, as it happened, in the course of editing and cleaning up her draft, the researcher accidentally deleted the
attributions.
First Finding
The Court adopts the Committee’s finding that the researcher’s explanation regarding the accidental removal of proper
attributions to the three authors is credible. Given the operational properties of the Microsoft program in use by the Court,
the accidental decapitation of attributions to sources of research materials is not remote.
For most senior lawyers and judges who are not computer literate, a familiar example similar to the circumstances of the
present case would probably help illustrate the likelihood of such an accident happening. If researcher X, for example,
happens to be interested in "the inalienable character of juridical personality" in connection with an assignment and if the
book of the learned Civilist, Arturo M. Tolentino, happens to have been published in a website, researcher X would
probably show interest in the following passage from that book:
xxx Both juridical capacity and capacity to act are not rights, but qualities of persons; hence, they cannot be alienated or
renounced.15
xxx
_____________________________
15 3 Von Tuhr 296; 1 Valverde 291.
Because the sentence has a footnote mark (#15) that attributes the idea to other sources, it is evident that Tolentino did
not originate it. The idea is not a product of his intellect. He merely lifted it from Von Tuhr and Valverde, two reputable
foreign authors.
When researcher X copies and pastes the above passage and its footnote into a manuscript-in-the-making in his
computer, the footnote number would, given the computer program in use, automatically change and adjust to the
footnoting sequence of researcher X’s manuscript. Thus, if the preceding footnote in the manuscript when the passage
from Tolentino was pasted on it is 23, Tolentino’s footnote would automatically change from the original Footnote 15 to
Footnote 24.
But then, to be of use in his materials-gathering scheme, researcher X would have to tag the Tolentino passage with a
short description of its subject for easy reference. A suitable subject description would be: "The inalienable character of
juridical personality.23" The footnote mark, 23 From Tolentino, which researcher X attaches to the subject tag, serves as
reminder to him to attribute the passage in its final form to Tolentino. After the passage has been tagged, it would now
appear like this:
The inalienable character of juridical personality.23
renounced.24
xxx
_____________________________
23 From Tolentino.
The tag is of course temporary and would later have to go. It serves but a marker to help researcher X maneuver the
passage into the right spot in his final manuscript.
The mistake of Justice Del Castillo’s researcher is that, after the Justice had decided what texts, passages, and citations
were to be retained including those from Criddle-Descent and Ellis, and when she was already cleaning up her work and
deleting all subject tags, she unintentionally deleted the footnotes that went with such tags—with disastrous effect.
To understand this, in Tolentino’s example, the equivalent would be researcher X’s removal during cleanup of the tag,
"The inalienable character of juridical personality.23," by a simple "delete" operation, and the unintended removal as well
of the accompanying footnote (#23). The erasure of the footnote eliminates the link between the lifted passage and its
source, Tolentino’s book. Only the following would remain in the manuscript:
renounced.43
_____________________________
As it happened, the Microsoft word program does not have a function that raises an alarm when original materials are cut
up or pruned. The portions that remain simply blend in with the rest of the manuscript, adjusting the footnote number and
removing any clue that what should stick together had just been severed.
This was what happened in the attributions to Ellis and Criddle-Descent. The researcher deleted the subject tags and,
accidentally, their accompanying footnotes that served as reminder of the sources of the lifted passages. With 119
sources cited in the decision, the loss of the 2 of them was not easily detectable.
Petitioners point out, however, that Justice Del Castillo’s verified letter of July 22, 2010 is inconsistent with his
researcher’s claim that the omissions were mere errors in attribution. They cite the fact that the Justice did not disclose his
researcher’s error in that letter despite the latter’s confession regarding her mistake even before the Justice sent his letter
to the Chief Justice. By denying plagiarism in his letter, Justice Del Castillo allegedly perjured himself and sought to
whitewash the case.13
But nothing in the July 22 letter supports the charge of false testimony. Justice Del Castillo merely explained "that there
was every intention to attribute all sources whenever due" and that there was never "any malicious intent to appropriate
another’s work as our own," which as it turns out is a true statement. He recalled how the Court deliberated upon the case
more than once, prompting major revisions in the draft of the decision. In the process, "(s)ources were re-studied,
discussions modified, passages added or deleted." Nothing in the letter suggests a cover-up. Indeed, it did not preclude a
researcher’s inadvertent error.
And it is understandable that Justice Del Castillo did not initially disclose his researcher’s error. He wrote the decision for
the Court and was expected to take full responsibility for any lapse arising from its preparation. What is more, the process
of drafting a particular decision for the Court is confidential, which explained his initial request to be heard on the matter
without the attendance of the other parties.
Notably, neither Justice Del Castillo nor his researcher had a motive or reason for omitting attribution for the lifted
passages to Criddle-Descent or to Ellis. The latter authors are highly respected professors of international law. The law
journals that published their works have exceptional reputations. It did not make sense to intentionally omit attribution to
these authors when the decision cites an abundance of other sources. Citing these authors as the sources of the lifted
passages would enhance rather than diminish their informative value. Both Justice Del Castillo and his researcher gain
nothing from the omission. Thus, the failure to mention the works of Criddle-Decent and Ellis was unquestionably due to
inadvertence or pure oversight.
Petitioners of course insist that intent is not material in committing plagiarism since all that a writer has to do, to avoid the
charge, is to enclose lifted portions with quotation marks and acknowledge the sources from which these were
taken.14 Petitioners point out that the Court should apply to this case the ruling in University of the Philippines Board of
Regents v. Court of Appeals and Arokiaswamy William Margaret Celine. 15 They argue that standards on plagiarism in the
academe should apply with more force to the judiciary.
But petitioners’ theory ignores the fact that plagiarism is essentially a form of fraud where intent to deceive is inherent.
Their theory provides no room for errors in research, an unrealistic position considering that there is hardly any substantial
written work in any field of discipline that is free of any mistake. The theory places an automatic universal curse even on
errors that, as in this case, have reasonable and logical explanations.
Indeed, the 8th edition of Black’s Law Dictionary defines plagiarism as the "deliberate and knowing presentation of
another person's original ideas or creative expressions as one's own."16 Thus, plagiarism presupposes intent and a
deliberate, conscious effort to steal another’s work and pass it off as one’s own.
Besides, the Court said nothing in U.P. Board of Regents that would indicate that an intent to pass off another’s work as
one’s own is not required in plagiarism. The Court merely affirmed the academic freedom of a university to withdraw a
master’s degree that a student obtained based on evidence that she misappropriated the work of others, passing them off
as her own. This is not the case here since, as already stated, Justice Del Castillo actually imputed the borrowed
passages to others.
Second Finding
The Court also adopts the Committee’s finding that the omission of attributions to Criddle-Descent and Ellis did not bring
about an impression that Justice Del Castillo himself created the passages that he lifted from their published articles. That
he merely got those passages from others remains self-evident, despite the accidental deletion. The fact is that he still
imputed the passages to the sources from which Criddle-Descent and Ellis borrowed them in the first place.
This is best illustrated in the familiar example above. After the deletion of the subject tag and, accidentally, its footnote
which connects to the source, the lifted passage would appear like this:
xxx Both juridical capacity and capacity to act are not rights, but qualities of persons; hence, they cannot be
alienated or renounced.43
_____________________________
Although the unintended deletion severed the passage’s link to Tolentino, the passage remains to be attributed to Von
Tuhr and Valverde, the original sources that Tolentino himself cites. The text and its footnote reference cancel out any
impression that the passage is a creation of researcher X. It is the same with the passages from Criddle-Descent and
Ellis. Because such passages remained attributed by the footnotes to the authors’ original sources, the omission of
attributions to Criddle-Descent and Ellis gave no impression that the passages were the creations of Justice Del Castillo.
This wholly negates the idea that he was passing them off as his own thoughts.
True the subject passages in this case were reproduced in the Vinuya decision without placing them in quotation marks.
But such passages are much unlike the creative line from Robert Frost, 17 "The woods are lovely, dark, and deep, but I
have promises to keep, and miles to go before I sleep, and miles to go before I sleep." The passages here consisted of
common definitions and terms, abridged history of certain principles of law, and similar frequently repeated phrases that,
in the world of legal literature, already belong to the public realm.
To paraphrase Bast and Samuels,18 while the academic publishing model is based on the originality of the writer’s thesis,
the judicial system is based on the doctrine of stare decisis, which encourages courts to cite historical legal data,
precedents, and related studies in their decisions. The judge is not expected to produce original scholarship in every
respect. The strength of a decision lies in the soundness and general acceptance of the precedents and long held legal
opinions it draws from.
Third Finding
Petitioners allege that the decision twisted the passages from Tams, Criddle-Descent, and Ellis. The Court adopts the
Committee’s finding that this is not so. Indeed, this allegation of twisting or misrepresentation remains a mystery to the
Court. To twist means "to distort or pervert the meaning of."19 For example, if one lifts the lyrics of the National Anthem,
uses it in his work, and declares that Jose Palma who wrote it "did not love his country," then there is "twisting" or
misrepresentation of what the anthem’s lyrics said. Here, nothing in the Vinuya decision said or implied that, based on the
lifted passages, authors Tams, Criddle-Descent, and Ellis supported the Court’s conclusion that the Philippines is not
under any obligation in international law to espouse Vinuya et al.’s claims.
The fact is that, first, since the attributions to Criddle-Descent and Ellis were accidentally deleted, it is impossible for any
person reading the decision to connect the same to the works of those authors as to conclude that in writing the decision
Justice Del Castillo "twisted" their intended messages. And, second, the lifted passages provided mere background facts
that established the state of international law at various stages of its development. These are neutral data that could
support conflicting theories regarding whether or not the judiciary has the power today to order the Executive Department
to sue another country or whether the duty to prosecute violators of international crimes has attained the status of jus
cogens.
Considering how it was impossible for Justice Del Castillo to have twisted the meaning of the passages he lifted from the
works of Tams, Criddle-Descent, and Ellis, the charge of "twisting" or misrepresentation against him is to say the least,
unkind. To be more accurate, however, the charge is reckless and obtuse.
No Misconduct
On occasions judges and justices have mistakenly cited the wrong sources, failed to use quotation marks, inadvertently
omitted necessary information from footnotes or endnotes. But these do not, in every case, amount to misconduct. Only
errors that are tainted with fraud, corruption, or malice are subject of disciplinary action. 20 This is not the case here.
Justice Del Castillo’s acts or omissions were not shown to have been impelled by any of such disreputable motives. 21 If
the rule were otherwise, no judge or justice, however competent, honest, or dedicated he may be, can ever hope to retire
from the judiciary with an unblemished record.22
No Inexcusable Negligence
Finally, petitioners assert that, even if they were to concede that the omission was the result of plain error, Justice Del
Castillo is nonetheless guilty of gross inexcusable negligence. They point out that he has full control and supervision over
his researcher and should not have surrendered the writing of the decision to the latter. 23
But this assumes that Justice Del Castillo abdicated the writing of the Vinuya decision to his researcher, which is contrary
to the evidence adduced during the hearing. As his researcher testified, the Justice set the direction that the research and
study were to take by discussing the issues with her, setting forth his position on those issues, and reviewing and
commenting on the study that she was putting together until he was completely satisfied with it. 24 In every sense, Justice
Del Castillo was in control of the writing of the report to the Court, which report eventually became the basis for the
decision, and determined its final outcome.
Assigning cases for study and research to a court attorney, the equivalent of a "law clerk" in the United States Supreme
Court, is standard practice in the high courts of all nations. This is dictated by necessity. With about 80 to 100 cases
assigned to a Justice in our Court each month, it would be truly senseless for him to do all the studies and research, going
to the library, searching the internet, checking footnotes, and watching the punctuations. If he does all these by himself,
he would have to allocate at least one to two weeks of work for each case that has been submitted for decision. The
wheels of justice in the Supreme Court will grind to a halt under such a proposition.
What is important is that, in this case, Justice Del Castillo retained control over the writing of the decision in
the Vinuya case without, however, having to look over his researcher’s shoulder as she cleaned up her draft report to
ensure that she hit the right computer keys. The Justice’s researcher was after all competent in the field of assignment
given her. She finished law from a leading law school, graduated third in her class, served as Editor-in Chief of her
school’s Law Journal, and placed fourth in the bar examinations when she took it. She earned a master’s degree in
International Law and Human Rights from a prestigious university in the United States under the Global-Hauser program,
which counsel for petitioners concedes to be one of the top post graduate programs on International Law in the world.
Justice Del Castillo did not exercise bad judgment in assigning the research work in the Vinuya case to her.
Can errors in preparing decisions be prevented? Not until computers cease to be operated by human beings who are
vulnerable to human errors. They are hypocrites who believe that the courts should be as error-free as they themselves
are.
Incidentally, in the course of the submission of petitioners’ exhibits, the Committee noted that petitioners’ Exhibit J, the
accusing statement of the Faculty of the U.P. College of Law on the allegations of plagiarism and misinterpretation, was a
mere dummy. The whole of the statement was reproduced but the signatures portion below merely listed the names of 38
faculty members, in solid rows, with the letters "Sgd" or "signed" printed beside the names without exception. These
included the name of retired Supreme Court Justice Vicente V. Mendoza, a U.P. professor.
Because the Committee declined to admit a mere dummy of Exhibit J, it directed Atty. Roque to present the signed copy
within three days of the August 26 hearing.25 He complied. As it turned out, the original statement was signed by only a
minority of the faculty members on the list. The set of signatories that appeared like solid teeth in the dummy turned out to
be broken teeth in the original. Since only 37 out of the 81 on the list signed the document, it does not appear to be a
statement of the Faculty but of just some of its members. And retired Justice V. V. Mendoza did not sign the statement,
contrary to what the dummy represented. The Committee wondered why the Dean submitted a dummy of the signed
document when U.P. has an abundance of copying machines.
Since the above circumstances appear to be related to separate en banc matter concerning the supposed Faculty
statement, there is a need for the Committee to turn over the signed copy of the same to the en banc for its consideration
in relation to that matter.
WHEREFORE, in view of all of the above, the Court:
1. DISMISSES for lack of merit petitioner Vinuya, et al.’s charges of plagiarism, twisting of cited materials, and
gross neglect against Justice Mariano C. del Castillo;
2. DIRECTS the Public Information Office to send copies of this decision to Professors Evan J. Criddle and Evan
Fox-Descent, Dr. Mark Ellis, and Professor Christian J. Tams at their known addresses;
3. DIRECTS the Clerk of Court to provide all court attorneys involved in legal research and reporting with copies
of this decision and to enjoin them to avoid editing errors committed in the Vinuya case while using the existing
computer program especially when the volume of citations and footnoting is substantial; and
4. Finally, DIRECTS the Clerk of Court to acquire the necessary software for use by the Court that can prevent
future lapses in citations and attributions.
Further, the Court DIRECTS the Committee on Ethics and Ethical Standards to turn over to the en banc the dummy as
well as the signed copy of petitioners’ Exhibit J, entitled "Restoring Integrity," a statement by the Faculty of the University
of the Philippines College of Law for the en banc’s consideration in relation to the separate pending matter concerning
that supposed Faculty statement.
SO ORDERED.
RENATO C. CORONA
Chief Justice
ANTONIO T. CARPIO CONCHITA CARPIO MORALES

Associate Justice Associate Justice
PRESBITERO J. VELASCO, JR. ANTONIO EDUARDO B. NACHURA

TERESITA J. LEONARDO-DE CASTRO ARTURO D. BRION

DIOSDADO M. PERALTA LUCAS P. BERSAMIN

MARIANO C. DEL CASTILLO ROBERTO A. ABAD

MARTIN S. VILLARAMA, JR. JOSE PORTUGAL PEREZ

JOSE CATRAL MENDOZA MARIA LOURDES P. A. SERENO

Footnotes
1 Supplemental Motion for Reconsideration, petitioner’s Exhibit A, p. 5.
2 Id. at 3.
3 Supplemental Motion for Reconsideration, supra note 1, at 5.
4 Justice Del Castillo’s Verified Letter, p. 3, Exhibit G of the petitioners.
5Statement of the University of the Philippines College of Law Faculty dated July 27, 2010, Exhibit J of the
petitioners.
6 Transcript of Stenographic Notes taken on August 26, 2010, p. 31.
7 G.R. No. 134625, August 31, 1999, 313 SCRA 404.
8 Webster’s New World College Dictionary, Third Edition, Macmillan USA, p. 1031.
9 Exhibit I for the petitioners.
10 Breaking the Silence of Rape as an International Crime, 38 Case W. Res. J. Int’l. L. 225 (2006).
11 34 Yale J. Int’l. L. 331 (2009).
12 Memorandum for Justice Del Castillo, paragraphs 25-35.
13 Petitioner’s Memorandum, pp. 26-27.
14 Supra note 6, at 41.
15 Supra note 7.
16 Black's Law Dictionary (8th ed. 2004).
17 Stopping by the Woods on a Snowy Evening (1923).
18 Bast and Samuels, Plagiarism and Legal Scholarship in the Age of Information Sharing: The Need for
Intellectual Honesty, 57 CATH. U. L. REV 777, 800 (2008).
19 Webster’s New World College Dictionary, 3rd Edition, p. 1445.
20Atty. Alberto P. Quinto v. Judge Gregorio S. Vios, Municipal Trial Court, Kapatagan, Lanao del Norte, A.M. No.
MTJ-04-1551, May 21, 2004, 429 SCRA 1; Tolentino v. Camano, Jr., A.M. No. RTJ 10-1522, January 20, 2000,
322 SCRA 559.
21 Daracan v. Natividad, A.M. No. RTC-99-1447, September 27, 2000, 341 SCRA 161.
22Guerrero v. Villamor, A.M. No. RTJ-90-483, September 25, 1998, 296 SCRA 88; Tan v. Adre, A.M. No. RTJ-05-
1898, January 31, 2005, 450 SCRA 145.
23 Supra note 13, at 25.
24 Supra note 6, at 27-30.
25 Order dated August 26, 2010, Committee Records, pp. 382-383.
The Lawphil Project - Arellano Law Foundation

DISSENTING OPINION
SERENO, J.:
What is black can be called "white" but it cannot turn white by the mere calling. The unfortunate ruling of the majority
Decision that no plagiarism was committed stems from its failure to distinguish between the determination of the objective,
factual existence of plagiarism in the Vinuya decision1 and the determination of the liability that results from a finding of
plagiarism. Specifically, it made "malicious intent", which heretofore had not been relevant to a finding of plagiarism, an
essential element.
The majority Decision will thus stand against the overwhelming conventions on what constitutes plagiarism. In doing so,
the Decision has created unimaginable problems for Philippine academia, which will from now on have to find a
disciplinary response to plagiarism committed by students and researchers on the justification of the majority Decision.
It has also undermined the protection of copyrighted work by making available to plagiarists "lack of malicious intent" as a
defense to a charge of violation of copy or economic rights of the copyright owner committed through lack of attribution.
Under Section 184 of R.A. 8293 ("An Act Describing the Intellectual Property Code and Establishing the Intellectual
Property Office, Providing for Its Powers and Functions, and for Other Purposes"), or the Intellectual Property Code of the
Philippines, there is no infringement of copyright in the use of another's work in:
(b) the making of quotations from a published work if they are compatible with fair use and only to the extent justified for
the purpose, including quotations from newspaper articles and periodicals in the form of press summaries: Provided that
the source and the name of the author, if appearing on the work, are mentioned. (Emphasis supplied)
Because the majority Decision has excused the lack of attribution to the complaining authors in the Vinuya decision to
editorial errors and lack of malicious intent to appropriate ─ and that therefore there was no plagiarism ─ lack of intent to
infringe copyright in the case of lack of attribution may now also become a defense, rendering the above legal provision
meaningless.2
TABLES OF COMPARISON
The tables of comparison below were first drawn based on the tables made by petitioners in their Supplemental Motion for
Reconsideration. This was then compared with Annex "A" of Justice Mariano del Castillo's letter, which is his tabular
explanation for some of the copied excerpts.3 The alleged plagiarism of the cited excerpts were then independently
verified and re-presented below, with the necessary revisions accurately reflecting the alleged plagiarized works and the
pertinent portions of the decision. A few excerpts in the table of petitioners are not included, as they merely refer to in-text
citations.
TABLE A: Comparison of Christian J. Tams’s book, entitled Enforcing Erga Omnes Obligations in International Law
(2005), hereinafter called "Tams’s work" and the Supreme Court’s 28 April 2010 Decision in Vinuya, et. al. v. Executive
Secretary.
Christian J. Tams, Enforcing Erga Omnes Vinuya, et. al. v. Executive Secretary, G.R.
Obligations in International Law (2005). No. 162230, 28 April 2010.
1. xxx The Latin phrase ‘erga omnes’ thus has *The Latin phrase, ‘erga omnes,’ has since
become one of the rallying cries of those become one of the rallying cries of those
sharing a belief in the emergence of a value- sharing a belief in the emergence of a value-
based international public order based on based international public order. However, as
law. xxx is so often the case, the reality is neither so
clear nor so bright. Whatever the relevance of
As often, the reality is neither so clear nor so obligations erga omnes as a legal concept, its
bright. One problem is readily admitted by full potential remains to be realized in
commentators: whatever the relevance of practice.[FN69] (p. 30, Body of the 28 April 2010
obligations erga omnes as a legal concept, its
full potential remains to be realised in Decision)
practice. xxx Bruno Simma’s much-quoted
observation encapsulates this feeling of Bruno Simma’s much-quoted
[FN69]
disappointment: ‘Viewed realistically, the observation encapsulates this feeling of
world of obligations erga omnes is still the disappointment: ‘Viewed realistically, the
world of the ‘‘ought’’ rather than of the ‘‘is’’. world of obligations erga omnes is still the
world of the "ought" rather than of the "is"’
(pp. 3-4 of the Christian Tams’s book) The Charter of the United Nations: A
Commentary 125 (Simma, ed. 1995). See
Tams, Enforcing Obligations Erga omnes in
International Law (2005).
*The decision mentioned Christian Tams’s

book in footnote 69.
TABLE B: Comparison of Evan J. Criddle & Evan Fox-Decent’s article in the Yale Journal of International Law, entitled A
Fiduciary Theory of Jus Cogens (2009), hereinafter called "Criddle’s & Fox-Decent’s work" and the Supreme Court’s 28
April 2010 Decision in Vinuya, et al. v. Executive Secretary.
Evan J. Criddle & Evan Fox-Decent, A Vinuya, et. al. v. Executive Secretary, G.R.
Fiduciary Theory of Jus Cogens, 34 Yale J. No. 162230, 28 April 2010
Int'l L. 331 (2009).
1. In international law, the term "jus cogens" In international law, the term "jus cogens"
(literally, "compelling law") refers to norms (literally, "compelling law") refers to norms
that command peremptory authority, that command peremptory authority,
superseding conflicting treaties and custom. superseding conflicting treaties and custom.
xxx Jus cogens norms are considered Jus cogens norms are considered peremptory
peremptory in the sense that they are in the sense that they are mandatory, do not
mandatory, do not admit derogation, and can admit derogation, and can be modified only
be modified only by general international by general international norms of equivalent
norms of equivalent authority.[FN2] authority.[FN70] (pp. 30-31, Body of the 28 April
2010 Decision)
[FN2]See Vienna Convention on the Law of
Treaties art. 53, opened for signature May 23, [FN70] See Vienna Convention on the Law of
1969, 1155 U.N.T.S. 331, 8 I.L.M. 679 Treaties art. 53, opened for signature May 23,
[hereinafter VCLT]. 1969, 1155 U.N.T.S. 331, 8 I.L.M. 679
[hereinafter VCLT].
(pp. 331-332 of the Yale Law Journal of Int’l
Law)
2. Peremptory norms began to attract greater xxx but peremptory norms began to attract
scholarly attention with the publication of greater scholarly attention with the publication
Alfred von Verdross's influential 1937 article, of Alfred von Verdross's influential 1937
Forbidden Treaties in International Law.[FN10] article, Forbidden Treaties in International
Law. [FN72] (p. 31, Body of the 28 April 2010
[FN10] For example, in the 1934 Oscar Chinn Decision)
Case, Judge Schücking's influential dissent
stated that neither an interna-tional court nor [FN72] Verdross argued that certain discrete
an arbitral tribunal should apply a treaty rules of international custom had come to be
provision in contradiction to bonos mores. recognized as having a compulsory character
Oscar Chinn Case, 1934 P.C.I.J. (ser. A/B) notwithstanding contrary state agreements. At
No. 63, at 149-50 (Dec. 12) (Schücking, J., first, Verdross's vision of international jus
dissenting). cogens encountered skepticism within the
legal academy. These voices of resistance
(p. 334 of the Yale Law Journal of Int’l Law) soon found themselves in the minority,
however, as the jus cogens concept gained
enhanced recognition and credibility following
the Second World War. (See Lauri
Hannikainen, Peremptory Norms (Jus
cogens) in International Law: Historical
Development, Criteria, Present Status 150
(1988) (surveying legal scholarship during the
period 1945-69 and reporting that "about
eighty per cent [of scholars] held the opinion
that there are peremptory norms existing in
international law").
3. Classical publicists such as Hugo Grotius, [FN71]
Classical publicists such as Hugo
Emer de Vattel, and Christian Wolff drew Grotius, Emer de Vattel, and Christian Wolff
upon the Roman law distinction between jus drew upon the Roman law distinction
dispositivum (voluntary law) and jus scriptum between jus dispositivum (voluntary law) and
(obligatory law) to differentiate consensual jus scriptum (obligatory law) to differentiate
agreements between states from the consensual agreements between states from
"necessary" principles of international law that the "necessary" principles of international law
bind all states as a point of conscience that bind all states as a point of conscience
regardless of consent.[FN6] regardless of consent.
[FN6] See Hugonis Grotii, De Jure Belli et (p. 31, Footnote 71 of the 28 April 2010
Pacis [On the Law of War and Peace] Decision)
(William Whewell ed. & trans., John W.
Parker, London 2009) (1625); Emer de Vattel,
Le Droit des Gens ou Principes de la Loi
Naturelle [The Law of Nations or Principles of
Natural Law] §§ 9, 27 (1758) (distinguishing
"le Droit des Gens Naturel, ou Nécessaire"
from "le Droit Volontaire"); Christian Wolff,
Jus Gentium Methodo Scientifica
Pertractorum [A Scientific Method for
Understanding the Law of Nations] ¶ 5
(James Brown Scott ed., Joseph H. Drake
trans., Clarendon Press 1934) (1764).
(p. 334 of the Yale Law Journal of Int’l Law)

4. Early twentieth-century publicists such as [FN71]xxx Early twentieth-century publicists
Lassa Oppenheim and William Hall asserted such as Lassa Oppenheim and William Hall
confidently that states could not abrogate asserted that states could not abrogate
certain "universally recognized principles" by certain "universally recognized principles" by
mutual agreement.[FN9] Outside the academy, mutual agreement. xxx Judges on the
judges on the Permanent Court of Permanent Court of International Justice
International Justice affirmed the existence of affirmed the existence of peremptory norms in
peremptory norms in international law by international law by referencing treaties
referencing treaties contra bonos mores contra bonos mores (contrary to public policy)
(contrary to public policy) in a series of in a series of individual concurring and
individual concurring and dissenting dissenting opinions. xxx
opinions.[FN10] xxx
(p. 31, Footnote 71 of the 28 April 2010
[FN9]
William Hall, A Treatise on International Decision)
Law 382-83 (8th ed. 1924) (asserting that
"fundamental principles of international law"
may "invalidate [], or at least render voidable,"
conflicting international agreements); 1 Lassa
Oppen-heim, International Law 528 (1905).
[FN10]
For example, in the 1934 Oscar Chinn
Case, Judge Schücking's influential dissent
stated that neither an interna-tional court nor
an arbitral tribunal should apply a treaty
provision in contradiction to bonos mores.
Oscar Chinn Case, 1934 P.C.I.J. (ser. A/B)
No. 63, at 149-50 (Dec. 12) (Schücking, J.,
dissenting).

Law)
5. [FN9]
William Hall, A Treatise on International [FN71]xxx (William Hall, A Treatise on
Law 382-83 (8th ed. 1924) (asserting that International Law 382-83 (8th ed. 1924)
"fundamental principles of international law" (asserting that "fundamental principles of
may "invalidate [], or at least render voidable," international law" may "invalidate [], or at least
conflicting international agreements) xxx render voidable," conflicting international
agreements) xxx
(Footnote 9 of the Yale Law Journal of Int’l
Law) (p. 31, Footnote 71 of the 28 April 2010
Decision)
6. [FN10]
For example, in the 1934 Oscar Chinn [FN71]xxx (For example, in the 1934 Oscar
Case, Judge Schücking's influential dissent Chinn Case, Judge Schücking's influential
stated that neither an international court nor dissent stated that neither an international
an arbitral tribunal should apply a treaty court nor an arbitral tribunal should apply a
provision in contradiction to bonos mores. treaty provision in contradiction to bonos
Oscar Chinn Case, 1934 P.C.I.J. (ser. A/B) mores. Oscar Chinn Case, 1934 P.C.I.J. (ser.
No. 63, at 149-50 (Dec. 12) (Schücking, J., A/B) No. 63, at 149-50 (Dec. 12) (Schücking,
dissenting). J., dissenting).
(Footnote 9 of the Yale Law Journal of Int’l (p. 31, Footnote 71 of the 28 April 2010
Law) Decision)
7. Verdross argued that certain discrete rules of [FN72]
Verdross argued that certain discrete
international custom had come to be rules of international custom had come to be
recognized as having a compulsory character recognized as having a compulsory character
notwithstanding contrary state notwithstanding contrary state agreements.
agreements.[FN12] xxx
[FN12] [Von Verdross, supra note 5.] (p. 31, Footnote 72 of the 28 April 2010
Decision)
(pp. 335 of the Yale Law Journal of Int’l Law)
8. At first, Verdross's vision of international jus [FN72]xxx At first, Verdross's vision of
cogens encountered skepticism within the international jus cogens encountered
legal academy. xxx These voices of skepticism within the legal academy. These
resistance soon found themselves in the voices of resistance soon found themselves in
minority, however, as the jus cogens concept the minority, however, as the jus
gained enhanced recognition and credibility cogens concept gained enhanced recognition
following the Second World War. and credibility following the Second World
War. xxx
Decision)
9. [FN18]
See Lauri Hannikainen, Peremptory [FN72]
xxx (See Lauri Hannikainen, Peremptory
Norms (Jus Cogens) in International Law: Norms (Jus cogens) in International Law:
Historical Development, Criteria, Present Historical Development, Criteria, Present
Status 150 (1988) (surveying legal Status 150 (1988) (surveying legal
scholarship during the period 1945-69 and scholarship during the period 1945-69 and
reporting that "about eighty per cent [of reporting that "about eighty per cent [of
scholars] held the opinion that there are scholars] held the opinion that there are
peremptory norms existing in international peremptory norms existing in international
law"). law").
Law) Decision)
10. xxx the 1950s and 1960s with the United xxx the 1950s and 1960s with the ILC’s
Nations International Law Commission's (ILC) preparation of the Vienna Convention on the
preparation of the Vienna Convention on the Law of Treaties (VCLT).[FN73]
Law of Treaties (VCLT).[FN20]
(p. 31, Body of the 28 April 2010 Decision)
[FN20] VCLT, supra note 2.
[FN73] In March 1953, the ILC's Special
(p. 336 of the Yale Law Journal of Int’l Law) Rapporteur, Sir Hersch Lauterpacht,
submitted for the ILC's consideration a partial
draft convention on treaties which stated that
"[a] treaty, or any of its provisions, is void if its
performance involves an act which is illegal
under international law and if it is declared so
to be by the International Court of Justice."
Hersch Lauterpacht, Law of Treaties: Report
by Special Rapporteur, [1953] 2 Y.B. Int'l L.
Comm'n 90, 93, U.N. Doc. A/CN.4/63.
11. In March 1953, Lauterpacht submitted for the [FN73] In March 1953, the ILC's Special
ILC's consideration a partial draft convention Rapporteur, Sir Hersch Lauterpacht,
on treaties which stated that "[a] treaty, or any submitted for the ILC's consideration a partial
of its provisions, is void if its performance draft convention on treaties which stated that
involves an act which is illegal under "[a] treaty, or any of its provisions, is void if its
international law and if it is declared so to be performance involves an act which is illegal
by the International Court of Justice."[FN21] under international law and if it is declared so
to be by the International Court of Justice."
[FN21] Hersch Lauterpacht, Law of Treaties: Hersch Lauterpacht, Law of Treaties: Report
Report by Special Rapporteur, [1953] 2 Y.B. by Special Rapporteur, [1953] 2 Y.B. Int'l L.
Int'l L. Comm'n 90, 93, U.N. Doc. A/CN.4/63. Comm'n 90, 93, U.N. Doc. A/CN.4/63.
(p. 336 of the Yale Law Journal of Int’l Law) (p. 31, Footnote 73 of the 28 April 2010
Decision)
12. Lauterpacht's colleagues on the ILC generally Though there was a consensus that certain
accepted his assessment that certain international norms had attained the status of
international norms had attained the status of jus cogens, [FN74] the ILC was unable to reach
jus cogens. [FN23] Yet despite general a consensus on the proper criteria for
agreement over the existence of international identifying peremptory norms.
jus cogens, the ILC was unable to reach a
consensus regarding either the theoretical (p. 31, Body of the 28 April 2010 Decision)
basis for peremptory norms' legal authority or
the proper criteria for identifying peremptory [FN74]
See Summary Records of the 877th
norms. Meeting, [1966] 1 Y.B. Int'l L. Comm'n 227,
230-231, U.N. Doc. A/CN.4/188 (noting that
[FN23] See Hannikainen, supra note 18, at 160-
the "emergence of a rule of jus cogens
61 (noting that none of the twenty five banning aggressive war as an international
members of the ILC in 1963 denied the crime" was evidence that international law
existence of jus cogens or contested the contains "minimum requirement[s] for
inclusion of an article on jus cogens in the safeguarding the existence of the
VCLT); see, e.g., Summary Records of the international community").
877th Meeting, [1966] 1 Y.B. Int'l L. Comm'n
227, 230-231, U.N. Doc. A/CN.4/188 (noting
that the "emergence of a rule of jus cogens
banning aggressive war as an international
crime" was evidence that international law
contains "minimum requirement[s] for
safeguarding the existence of the
international community").
(p. 336 of the Yale Law Journal of Int’l Law)

13. [FN23]xxx see, e.g., Summary Records of the [FN74]See Summary Records of the 877th
877th Meeting, [1966] 1 Y.B. Int'l L. Comm'n Meeting, [1966] 1 Y.B. Int'l L. Comm'n 227,
227, 230-231, U.N. Doc. A/CN.4/188 (noting 230-231, U.N. Doc. A/CN.4/188 (noting that
that the "emergence of a rule of jus cogens the "emergence of a rule of jus
banning aggressive war as an international cogens banning aggressive war as an
crime" was evidence that international law international crime" was evidence that
contains "minimum requirement[s] for international law contains "minimum
safeguarding the existence of the requirement[s] for safeguarding the existence
international community"). of the international community").
Law) Decision)
14. After an extended debate over these and After an extended debate over these and
other theories of jus cogens, the ILC other theories of jus cogens, the ILC
concluded ruefully in 1963 that "there is not concluded ruefully in 1963 that "there is not
as yet any generally accepted criterion by as yet any generally accepted criterion by
which to identify a general rule of international which to identify a general rule of international
law as having the character of jus law as having the character of jus
cogens."[FN27] xxx In commentary cogens."[FN75] In a commentary accompanying
accompanying the draft convention, the ILC the draft convention, the ILC indicated that
indicated that "the prudent course seems to "the prudent course seems to be to x x x
be to . . . leave the full content of this rule to leave the full content of this rule to be worked
be worked out in State practice and in the out in State practice and in the jurisprudence
jurisprudence of international of international tribunals."[FN76] xxx
tribunals."[FN29] xxx
(p. 32, Body of the 28 April 2010 Decision)
[FN27]
Second Report on the Law of Treaties,
[1963] 2 Y.B. Int'l L. Comm'n 1, 52, U.N. Doc. [FN75]
A/CN.4/156. [1963] 2 Y.B. Int'l L. Comm'n 1, 52, U.N. Doc.
A/CN.4/156.
[FN29]
supra note 27, at 53. [76] Id. at 53.
(p. 337-8 of the Yale Law Journal of Int’l Law)

15. In some municipal cases, courts have [FN77]
xxx In some municipal cases, courts
declined to recognize international norms as have declined to recognize international
peremptory while expressing doubt about the norms as peremptory while expressing doubt
proper criteria for identifying jus cogens.[FN72] about the proper criteria for identifying jus
cogens. (See, e.g., Sampson v. Federal
[FN72]
See, e.g., Sampson v. Federal Republic Republic of Germany, 250 F.3d 1145, 1149
of Germany, 250 F.3d 1145, 1149 (7th Cir. (7th Cir. 2001) (expressing concern that jus
2001) (expressing concern that jus cogens cogens should be invoked "[o]nly as a last
should be invoked "[o]nly as a last resort"). resort")). xxx
(p. 346 of the Yale Law Journal of Int’l Law) (p. 32, Footnote 77 of the 28 April 2010
Decision)
16. In other cases, national courts have accepted [FN77]xxx In other cases, national courts have
international norms as peremptory, but have accepted international norms as peremptory,
hesitated to enforce these norms for fear that but have hesitated to enforce these norms for
they might thereby compromise state fear that they might thereby compromise state
sovereignty.[FN73] xxx In Congo v. Rwanda, for sovereignty. (See, e.g., Bouzari v. Iran, [2004]
example, Judge ad hoc John Dugard 71 O.R.3d 675 (Can.) (holding that the
observed that the ICJ had refrained from prohibition against torture does not entail a
invoking the jus cogens concept in several right to a civil remedy enforceable in a foreign
previous cases where peremptory norms court)).
manifestly clashed with other principles of
general international law.[FN74] Similarly, the In Congo v. Rwanda, for example, Judge ad
European Court of Human Rights has hoc John Dugard observed that the ICJ had
addressed jus cogens only once, in Al-Adsani refrained from invoking the jus
v. United Kingdom, when it famously rejected cogens concept in several previous cases
the argument that jus cogens violations would where peremptory norms manifestly clashed
deprive a state of sovereign immunity. with other principles of general international
law. (See Armed Activities on the Territory of
[FN73]See, e.g., Bouzari v. Iran, [2004] 71 the Congo (Dem. Rep. Congo v. Rwanda)
O.R.3d 675 (Can.) (holding that the (Judgment of February 3, 2006), at 2
prohibition against torture does not entail a (Dissenting Opinion of Judge Dugard))
right to a civil remedy enforceable in a foreign
court). Similarly, the European Court of Human
Rights has addressed jus cogens only once,
[FN74]
See Armed Activities on the Territory of in Al-Adsani v. United Kingdom, when it
the Congo (Dem. Rep. Congo v. Rwanda) famously rejected the argument that jus
(Judgment of Feb. 3, 2006), at 2 (dissenting cogens violations would deprive a state of
opinion of Judge Dugard) xxx. sovereign immunity. Al-Adsani v. United
Kingdom, 2001-XI Eur. Ct. H.R. 79, 61).
Decision)
TABLE C: Comparison of Mark Ellis’s article in the Case Western Reserve Journal of International Law, entitled Breaking
the Silence: Rape as an International Crime (2006-7), hereafter called "Ellis’s work" and the Supreme Court’s 28 April
2010 Decision in Vinuya, et al. v. Executive Secretary.
Mark Ellis, Breaking the Silence: Rape as an Vinuya, et. al. v. Executive Secretary, G.R.
International Crime, 38 Case W. Res. J. Int'l No. 162230, 28 April 2010.
L. 225 (2006-2007).
1. The concept of rape as an international crime [FN65]
The concept of rape as an international
is relatively new. This is not to say that rape crime is relatively new. This is not to say that
has never been historically prohibited, rape has never been historically prohibited,
particularly in war.[FN7] The 1863 Lieber particularly in war. But modern-day sensitivity
Instructions, which codified customary inter- to the crime of rape did not emerge until after
national law of land warfare, classified rape World War II. xxx (For example, the Treaty of
as a crime of "troop discipline."[FN8] It specified
Amity and Commerce between Prussia and
rape as a capital crime punishable by the the United States provides that in time of war
death penalty.[FN9] The 1907 Hague all women and children "shall not be molested
Convention protected women by requiring the in their persons." The Treaty of Amity and
protection of their "honour."[FN10] But modern- Commerce, Between his Majesty the King of
day sensitivity to the crime of rape did not Prussia and the United States of America, art.
emerge until after World War II. 23, Sept. 10, 1785, U.S.-Pruss., 8 Treaties &
Other Int'l Agreements Of The U.S. 78, 85[)].
[FN7] For example, the Treaty of Amity and The 1863 Lieber Instructions classified rape
Commerce Prussia and the United States as a crime of "troop discipline." (Mitchell, The
provides that in time of war all women and Prohibition of Rape in International
children "shall not be molested in their Humanitarian Law as a Norm of Jus cogens:
persons." The Treaty of Amity and Clarifying the Doctrine, 15 DUKE J. COMP.
Commerce, Between his Majesty the King of INT’L. L. 219, 224). It specified rape as a
Prussia and the United States of America, art. capital crime punishable by the death penalty
23, Sept. 10, 1785, U.S.-Pruss., 8 TREATIES (Id. at 236). The 1907 Hague Convention
& OTHER INT'L AGREEMENTS OF THE protected women by requiring the protection
U.S. 78, 85, available at xxx. of their "honour." ("Family honour and rights,
the lives of persons, and private property, as
[FN8] David Mitchell, The Prohibition of Rape in well as religious convictions and practice,
must be respected." Convention (IV)
International Humanitarian Law as a Norm of
Respecting the Laws & Customs of War on
Jus Cogens: Clarifying the Doctrine, 15 DUKE
Land, art. 46, Oct. 18, 1907[)]. xxx.
J. COMP. INT'L L. 219, 224.

Decision)
[FN9] Id. at 236.
[FN10]"Family honour and rights, the lives of

persons, and private property, as well as
religious convictions and practice, must be
respected." Convention (IV) Respecting the
Laws & Customs of War on Land, art. 46, Oct.
18, 1907, available at http://www.yale
.edu/lawweb/avalon/lawofwar/hague04.htm
#art46.
(p. 227 of the Case Western Law Reserve

Journal of Int’l Law)
2. After World War II, when the Allies [FN65]
xxx In the Nuremberg Charter, the word
established the Nuremberg Charter, the word rape was not mentioned. The article on
rape was not mentioned. The article on crimes against humanity explicitly set forth
crimes against humanity explicitly set forth prohibited acts, but rape was not mentioned
prohibited acts, but rape was not mentioned by name. xxx See Agreement for the
by name.[FN11] Prosecution and Punishment of the Major
War Criminals of the European Axis, Aug. 8,
[FN11]
See generally, Agreement for the 1945, 59 Stat. 1544, 82 U.N.T.S. 279. xxx.
Prosecution and Punishment of the Major
War Criminals of the Euro-pean Axis, Aug. 8, (p. 27, Footnote 65 of the 28 April 2010
1945, 59 Stat. 1544, 82 U.N.T.S. 279. Decision)

3. The Nuremberg Judgment did not make any [FN65] xxx The Nuremberg Judgment did not
reference to rape and rape was not make any reference to rape and rape was not
prosecuted.[FN13] xxx. prosecuted. (Judge Gabrielle Kirk
McDonald, The International Criminal
It was different for the Charter of the Tribunals Crime and Punishment in the
International Military Tribunal for the Far International Arena,7 ILSA J. Int’l. Comp. L.
East. [FN15] xxx The Tribunal prosecuted rape 667, 676.) However, International Military
crimes, even though its Statute did not Tribunal for the Far East prosecuted rape
explicitly criminalize rape.[FN17] The Far East crimes, even though its Statute did not
Tribunal held General Iwane Matsui, explicitly criminalize rape. The Far East
Commander Shunroku Hata and Foreign Tribunal held General Iwane Matsui,
Minister Hirota criminally responsible for a Commander Shunroku Hata and Foreign
series of crimes, including rape, committed by Minister Hirota criminally responsible for a
persons under their authority.[FN18] series of crimes, including rape, committed by
persons under their authority. (The Tokyo
[FN13] Judge Gabrielle Kirk McDonald, The Judgment: Judgment Of The International
Military Tribunal For The Far East 445-54
International Criminal Tribunals Crime and
(1977). xxx
Punishment in the International Arena, 7 ILSA
J. INT'L COMP L. 667, at 676.
[FN15] See Charter of the International Tribunal Decision)
for the Far East, Jan. 19, 1946, T.I.A.S. 1589.
[FN17] See McDonald, supra note 13, at 676.
[FN18]
THE TOKYO JUDGMENT: JUDGMENT
OF THE INTERNATIONAL MILITARY
TRIBUNAL FOR THE FAR EAST 445-54
(B.V.A. Roling and C.F. Ruter eds., 1977).

4. The first mention of rape as a specific crime [FN65]
xxx The first mention of rape as a
came in December 1945 when Control specific crime came in December 1945 when
Council Law No. 10 included the term rape in Control Council Law No. 10 included the term
the definition of crimes against rape in the definition of crimes against
humanity.[FN22] Law No. 10, adopted by the humanity. Law No. 10, adopted by the four
four occupying powers in Germany, was occupying powers in Germany, was devised
devised to establish a uniform basis for to establish a uniform basis for prosecuting
prosecuting war criminals in German courts. war criminals in German courts. (Control
Council for Germany, Law No. 10:
[FN22]Control Council for Germany, Law No. Punishment of Persons Guilty of War Crimes,
10: Punishment of Persons Guilty of War Crimes Against Peace and Against Humanity,
Crimes, Crimes Against Peace and Against Dec. 20, 1945, 3 Official Gazette Control
Humanity, Dec. 20, 1945, 3 Official Gazette Council for Germany 50, 53 (1946)) xxx
Control Council for Germany 50, 53 (1946),
available at http://www1.umn.edu/humanrts (p. 27, Footnote 65 of the 28 April 2010
/instree/ccno10.htm (last visited Nov. 20, Decision)
2003). This law set forth a uniform legal basis
in Germany for the prosecution of war
criminals and similar offenders, other than
those dealt with under the International
Military Tribunal. See id. at 50.
(pp. 228-9 of the Case Western Law Reserve

5. The 1949 Geneva Convention Relative to the [FN65]xxx The 1949 Geneva Convention
Treatment of Prisoners of War was the first Relative to the Treatment of Prisoners of War
modern-day international instrument to was the first modern-day international
establish protections against rape for instrument to establish protections against
women.[FN23] However, the most important rape for women. Geneva Convention Relative
development in breaking the silence of rape to the Protection of Civilian Persons in Time
as an international crime has come through of War, Aug. 12, 1949, art. 27, 6 U.S.T. 3316,
the jurisprudence of the ICTY and the 75 U.N.T.S. 287 (entry into force Oct. 20,
International Criminal Tribunal for Rwanda 1950) [hereinafter Fourth Geneva
(ICTR). Both of these Tribunals have Convention]. Furthermore, the ICC, the ICTY,
significantly advanced the crime of rape by and the International Criminal Tribunal for
enabling it to be prosecuted as genocide, a Rwanda (ICTR) have significantly advanced
war crime, and a crime against humanity. xxx. the crime of rape by enabling it to be
prosecuted as genocide, a war crime, and a
[FN23]
Geneva Convention Relative to the crime against humanity. xxx.
Protection of Civilian Persons in Time of War,
Aug. 12, 1949, art. 27, 6 U.S.T. 3316, 75 (p. 27, Footnote 65 of the 28 April 2010
U.N.T.S. 287 (entry into force Oct. 20, 1950) Decision)
[hereinafter Fourth Geneva Convention].

Forms of Plagiarism
There are many ways by which plagiarism can be committed.4 For the purpose of this analysis, we used the standard
reference book prescribed for Harvard University students, "Writing with Sources" by Gordon Harvey.
Harvey identifies four forms of plagiarism 5: (a) uncited data or information;6 (b) an uncited idea, whether a specific claim or
general concept;7 (c) an unquoted but verbatim phrase or passage;8 and (d) an uncited structure or organizing
strategy.9 He then explains how each form or mode of plagiarism is committed. Plagiarism is committed in mode (a) by
"plagiarizing information that is not common knowledge."10 Mode (b) is committed when "distinctive ideas are plagiarized,"
"even though you present them in a different order and in different words, because they are uncited."11
Even if there has been a prior citation, succeeding appropriations of an idea to make it appear as your own is plagiarism,
because the "[previous] citation in [an earlier] passage is a deception." Mode (c) is committed when "you … borrowed
several distinctive phrases verbatim, without quotation marks…" Mode (d) is committed when, though the words and
details are original, "(y)ou have, however, taken the structural framework or outline directly from the source passage …
even though, again, your language differs from your source and your invented examples are original." 12
These forms of plagiarism can exist simultaneously in one and the same passage. There may be a complete failure to use
quotation marks in one part of the sentence or paragraph while combining that part with phrases employing an uncited
structure or organizing strategy. There may be patchwork plagiarizing committed by collating different works or excerpts
from the same work without proper attribution.13
These acts of plagiarism can also be committed in footnotes in the same way and at the same degree of unacceptability
as plagiarized passages in the body. This is especially frowned upon in footnotes that are discursive or "content"
footnotes or endnotes. Harvey explains that a discursive footnote or endnote is "a note that includes comments, not just
publication information . . . when you want to tell your reader something extra to the strict development of your argument,
or incorporate extra information about sources."14
Violations of Rules against

Plagiarism in the Vinuya Decision
Below are violations of the existing rules against plagiarism that can be found in the Vinuya decision. The alphanumeric
tags correspond to the table letter and row numbers in the tables provided above.
A.1 Failure to use quotation marks to indicate that the entire paragraph in the body of the decision on page 30
was not the ponente’s original paragraph, but was lifted verbatim from Tams’s work. The attribution to Tams is
wholly insufficient because without the quotation marks, there is nothing to alert the reader that the paragraph
was lifted verbatim from Tams. The footnote leaves the reader with the impression that the said paragraph is the
author’s own analysis of erga omnes.
The "See Tams, Enforcing Obligations Erga omnes in International Law (2005)" line in footnote 69 of the Vinuya decision
does not clearly indicate that the statement on Simma’s observation was lifted directly from Tams’s work; it only directs
the reader to Tams’s work should the reader wish to read further discussions on the matter.
B.1 Failure to use quotation marks to indicate that the two sentences were not the ponente’s, but were lifted
verbatim from two non-adjoining sentences found on pages 331 and 332 of the Yale Law Journal of International
Law article of Criddle & Fox-Decent and with absolutely no attribution to the latter.
B.2 Failure to use quotation marks to indicate that the sentence fragment on peremptory norms was not the
ponente’s original writing, but was lifted verbatim from page 334 of the Yale Law Journal of International Law
article of Criddle & Fox-Decent with absolutely no attribution to the authors.
B.3 Failure to use quotation marks to indicate that the first sentence in discursive footnote number 71 was not the
ponente’s idea, but was lifted verbatim from Criddle & Fox-Decent’s work at page 334.
B.4 Failure to use quotation marks to indicate that the third sentence in discursive footnote number 71 was not the
ponente’s idea, but was lifted from Criddle & Fox-Decent’s work at 334-335.
B.5 Failure to indicate that one footnote source in discursive footnote 71 was lifted verbatim from discursive
footnote 9 of Tams; thus, even the idea being propounded in this discursive part of footnote 71 was presented as
the ponente’s, instead of Criddle’s & Fox-Decent’s.
B.6 Failure to indicate that the last discursive sentence in footnote 71 and the citations thereof were not the
ponente’s, but were lifted verbatim from footnote 9 of Criddle & Fox-Decent’s work.
B.7 Failure to indicate that the first discursive sentence of footnote 72 was not the ponente’s, but was lifted
verbatim from page 335 of Criddle & Fox-Decent’s work.
B.8 Failure to indicate that the second discursive sentence of footnote 72 was not the ponente’s, but was lifted
verbatim from pages 335-336 of Criddle and Fox-Decent’s work.
B.9 Failure to indicate that the citation and the discursive passage thereon in the last sentence of footnote 72 was
not the ponente’s, but was lifted verbatim from discursive footnote 18 of Criddle & Fox-Decent’s work.
B.10 Failure to use quotation marks to indicate that a phrase in the body of the decision on page 31 was not the
ponente’s, but was lifted verbatim from page 336 of Criddle & Fox-Decent’s work.
B.11 Failure to indicate that the entirety of discursive footnote 73 was not the ponente’s, but was lifted verbatim
from page 336 of Criddle & Fox-Decent’s work.
B.12 Failure to indicate that the idea of lack of "consensus on whether certain international norms had attained
the status of jus cogens" was a paraphrase of a sentence combined with a verbatim lifting of a phrase that
appears on page 336 of Criddle & Fox-Decent’s work and was not the ponente’s own conclusion. This is an
example of patchwork plagiarism.
B.13 Failure to indicate that the entirety of discursive footnote 74 on page 31 of the Decision was not the
ponente’s comment on the source cited, but was lifted verbatim from footnote 23 of Criddle & Fox-Decent’s work.
B.14 Failure to indicate through quotation marks and with the proper attribution to Criddle that the first two
sentences of page 32 were not the ponente’s, but were lifted verbatim from two non-adjoining sentences on
pages 337-338 of Criddle & Fox-Decent’s work.
B.15 Failure to indicate through quotation marks and the right citation that the discursive sentence in the second
paragraph of footnote 77, and the citation therein, were not the ponente’s, but were lifted verbatim from page 346
of the body of Criddle & Fox-Decent’s work in the instance of the discursive sentence, and from footnote 72 of
Criddle & Fox-Decent’s work in the instance of the case cited and the description thereof.
B.16 Failure to indicate that the choice of citation and the discursive thereon statement in the second sentence of
the second paragraph of discursive footnote 77 was not the ponente’s, but was lifted verbatim from footnote 72 of
Criddle & Fox-Decent’s work.
B.17 Failure to indicate through quotation marks and the right citations that the entirety of the discursive third to
fifth paragraphs of footnote 77 were not the product of the ponente’s own analysis and choice of sources, but
were lifted verbatim from footnotes 73 and 77 on pages 346-347 of Criddle & Fox-Decent’s work.
C.1 to C.6 Failure to use quotation marks and the right citations to indicate that half of the long discursive footnote
65, including the sources cited therein, was actually comprised of the rearrangement, and in some parts,
rephrasing of 18 sentences found on pages 227-228 of Mr. Ellis’s work in Case Western Law Reserve Journal of
International Law.
This painstaking part-by-part analysis of the Vinuya decision is prompted by the fact that so many, including international
academicians, await the Court’s action on this plagiarism charge ─ whether it will in all candor acknowledge that there is a
set of conventions by which all intellectual work is to be judged and thus fulfill its role as an honest court; or blind itself to
the unhappy work of its member.
The text of the Decision itself reveals the evidence of plagiarism. The tearful apology of the legal researcher to the family
of the ponente and her acknowledgment of the gravity of the act of omitting attributions is an admission that something
wrong was committed. Her admission that the correct attributions went missing in the process of her work is an admission
of plagiarism. The evidence in the text of the Vinuya Decision and the acknowledgment by the legal researcher are
sufficient for the determination of plagiarism.
The Place of the Plagiarized
Portions in the Vinuya Decision
The suspect portions of the majority decision start from the discursive footnotes of the first full paragraph of page 27. In
that paragraph, the idea sought to be developed was that while rape and sexual slavery may be morally reprehensible
and impermissible by international legal norms, petitioners have failed to make the logical leap to conclude that the
Philippines is thus under international legal duty to prosecute Japan for the said crime. The plagiarized work found in
discursive footnote 65 largely consists of the exposition by Mr. Ellis of the development of the concept of rape as an
international crime. The impression obtained by any reader is that the ponente has much to say about how this crime
evolved in international law, and that he is an expert on this matter.
There are two intervening paragraphs before the next suspect portion of the decision. The latter starts from the second
paragraph on page 30 and continues all the way up to the first paragraph of page 32. The discussion on the erga omnes
obligation of states almost cannot exist, or at the very least cannot be sustained, without the plagiarized works of Messrs.
Tams, Criddle and Decent-Fox. There is basis to say that the plagiarism of this portion is significant.
How the Majority Decision

Treated the Specific Allegations
of Plagiarism
The majority Decision narrates and explains:
"The researcher demonstrated by Power Point presentation how the attribution of the lifted passages to the writings of
Criddle-Descent and Ellis, found in the beginning drafts of her report to Justice Del Castillo, were unintentionally deleted.
She tearfully expressed remorse at her "grievous mistake" and grief for having "caused an enormous amount of suffering
for Justice Del Castillo and his family."
On the other hand, addressing the Committee in reaction to the researcher’s explanation, counsel for petitioners insisted
that lack of intent is not a defense in plagiarism since all that is required is for a writer to acknowledge that certain words
or language in his work were taken from another’s work. Counsel invoked the Court’s ruling in University of the Philippines
Board of Regents v. Court of Appeals and Arokiaswamy William Margaret Celine, arguing that standards on plagiarism in
the academe should apply with more force to the judiciary.
xxx xxx xxx
"… although Tams himself may have believed that the footnoting in his case was not "an appropriate form of referencing,"
he and petitioners cannot deny that the decision did attribute the source or sources of such passages. Justice Del Castillo
did not pass off Tam’s work as his own. The Justice primarily attributed the ideas embodied in the passages to Bruno
Simma, whom Tam himself credited for them. Still, Footnote 69 mentioned, apart from Simma, Tam’s article as another
source of those ideas.
The Court believes that whether or not the footnote is sufficiently detailed, so as to satisfy the footnoting standards of
counsel for petitioners is not an ethical matter but one concerning clarity of writing. The statement "See Tams, Enforcing
Obligations Erga Omnes in International Law (2005)" in the Vinuya decision is an attribution no matter if Tams thought
that it gave him somewhat less credit than he deserved. Such attribution altogether negates the idea that Justice Del
Castillo passed off the challenged passages as his own.
That it would have been better had Justice Del Castillo used the introductory phrase "cited in" rather than the phrase
"See" would make a case of mere inadvertent slip in attribution rather than a case of "manifest intellectual theft and
outright plagiarism." If the Justice’s citations were imprecise, it would just be a case of bad footnoting rather than one of
theft or deceit. If it were otherwise, many would be target of abuse for every editorial error, for every mistake in citing
pagination, and for every technical detail of form."
xxx
"Footnote 65 appears down the bottom of the page. Since the lengthily passages in that footnote came almost verbatim
from Ellis’ article, such passages ought to have been introduced by an acknowledgement that they are from that article.
The footnote could very well have read:
65 In an article, Breaking the Silence: Rape as an International Crime, Case Western Reserve Journal of International
Law (2006), Mark Ellis said.) x x x
"But, as it happened, the acknowledgment above or a similar introduction was missing from Footnote 65.
xxx
"Admittedly, the Vinuya decision lifted the above, including their footnotes, from Criddle-Descent’s article, A Fiduciary
Theory of Jus Cogens. Criddle-Descent’s footnotes were carried into the Vinuya decision’s own footnotes but no
attributions were made to the two authors in those footnotes.
"Unless amply explained, the above lifting from the works of Ellis and Criddle-Descent could be construed as plagiarism.
But one of Justice Del Castillo’s researchers, a court-employed attorney, explained how she accidentally deleted the
attributions, originally planted in the beginning drafts of her report to him, which report eventually became the working
draft of the decision. She said that, for most parts, she did her research electronically. For international materials, she
sourced these mainly from Westlaw, an online research service for legal and law-related materials to which the Court
subscribes.
xxx
"With the advent of computers, however as Justice Del Castillo’s researcher also explained, most legal references,
including the collection of decisions of the Court, are found in electronic diskettes or in internet websites that offer virtual
libraries of books and articles. Here, as the researcher found items that were relevant to her assignment, she downloaded
or copied them into her "main manuscript," a smorgasbord plate of materials that she thought she might need. The
researcher’s technique in this case is not too far different from that employed by a carpenter. The carpenter first gets the
pieces of lumber he would need, choosing the kinds and sizes suitable to the object he has in mind, say a table. When
ready, he would measure out the portions he needs, cut them out of the pieces of lumber he had collected, and construct
his table. He would get rid of the scraps.
"Here, Justice Del Castillo’s researcher did just that. She electronically "cut" relevant materials from books and journals in
the Westlaw website and "pasted" these to a "main manuscript" in her computer that contained the Microsoft Word
program. Later, after she decided on the general shape that her report would take, she began pruning from that
manuscript those materials that did not fit, changing the positions in the general scheme of those that remained, and
adding and deleting paragraphs, sentences, and words as her continuing discussions with Justice Del Castillo, her chief
editor, demanded. Parenthetically, this is the standard scheme that computer-literate court researchers use everyday in
their work.
"Justice Del Castillo’s researcher showed the Committee the early drafts of her report in the Vinuya case and these
included the passages lifted from the separate articles of Criddle-Descent and of Ellis with proper attributions to these
authors. But, as it happened, in the course of editing and cleaning up her draft, the researcher accidentally deleted the
attributions.
"The Court adopts the Committee’s finding that the researcher’s explanation regarding the accidental removal of proper
attributions to the three authors is credible. Given the operational properties of the Microsoft program in use by the Court,
the accidental decapitation of attributions to sources of research materials is not remote."
Contrary to the view of my esteemed colleagues, the above is not a fair presentation of what happens in electronically
generated writings aided by electronic research.
First, for a decision to make full attribution for lifted passages, one starts with block quote formatting or the
"keying-in" of quotation marks at the beginning and at the end of the lifted passages. These keyed-in computer
commands are not easily accidentally deleted, but should be deliberately inputted where there is an intention to
quote and attribute.
Second, a beginning acknowledgment or similar introduction to a lengthy passage copied verbatim should not be
accidentally deleted; it must be deliberately placed.
Third, the above explanation regarding the lines quoted in A.1 in the majority Decision may touch upon what
happened in incident A.1, but it does not relate to what happened in incidents B.1 to C.6 of the Tables of
Comparison, which are wholesale lifting of excerpts from both the body and the footnotes of the referenced works,
without any attribution, specifically to the works of Criddle & Fox-Decent and of Ellis. While mention was made of
Tams’s work, no mention was made at all of the works of Criddle & Fox-Decent and of Ellis even though the
discussions and analyses in their discursive footnotes were used wholesale.
Fourth, the researcher’s explanation regarding the accidental deletion of 2 footnotes out of 119 does not plausibly
account for the extensive amount of text used with little to no modifications from the works of Criddle & Fox-
Decent and Ellis. As was presented in Tables B and C, copied text occurs in 22 instances in pages 27, 31, and 32
of the Vinuya decision. All these instances of non-attribution cannot be remedied by the reinstatement of 2
footnotes.
Fifth, the mention of Tams in "See Tams, Enforcing Obligations Erga omnes in International Law (2005)" in
footnote 69 of the Vinuya decision was not a mere insufficiency in "clarity of writing," but a case of plagiarism
under the rule prohibiting the use of misleading citations.
Sixth, the analogy that was chosen ─ that of a carpenter who discards materials that do not fit into his carpentry
work ─ is completely inappropriate. In the scheme of "cutting and pasting" that the researcher did during her work,
it is standard practice for the original sources of the downloaded and copied materials to be regarded as integral
parts of the excerpts, not extraneous or ill-fitting. A computer-generated document can accommodate as many
quotation marks, explanatory notes, citations and attributions as the writer desires and in multiple places. The
limits of most desktop computer drives, even those used in the Supreme Court, are in magnitudes of gigabytes
and megabytes, capable of accommodating 200 to 400 books per gigabyte (with each book just consuming
roughly 3 to 5 megabytes). The addition of a footnote to the amount of file space taken up by an electronic
document is practically negligible. It is not as if the researcher lacked any electronic space; there was simply no
attribution.
Seventh, contrary to what is implied in the statement on Microsoft Word’s lack of an alarm and in paragraph 4 of
the decretal portion of the majority Decision, no software exists that will automatically type in quotation marks at
the beginning and end of a passage that was lifted verbatim; these attribution marks must be made with
deliberate effort by the human researcher. Nor can a software program generate the necessary citations without
input from the human researcher. Neither is there a built-in software alarm that sounds every time attribution
marks or citations are deleted. The best guarantee for works of high intellectual integrity is consistent, ethical
practice in the writing habits of court researchers and judges. All lawyers are supposed to be knowledgeable on
the standard of ethical practice, if they took their legal research courses in law school and their undergraduate
research courses seriously. This knowledge can be easily picked up and updated by browsing many free online
sources on the subject of writing standards. In addition, available on the market are software programs that can
detect some, but not all, similarities in the phraseology of a work-in-progress with those in selected published
materials; however, these programs cannot supply the citations on their own. Technology can help diminish
instances of plagiarism by allowing supervisors of researchers to make partial audits of their work, but it is still the
human writer who must decide to give the proper attribution and act on this decision.
Plagiarism and Judicial Plagiarism
Plagiarism is an act that does not depend merely on the nature of the object, i.e. what is plagiarized, but also hinges on
the process, i.e. what has been done to the object. The elements of this process are the act of copying the plagiarized
work and the subsequent omission in failing to attribute the work to its author.15 Plagiarism thus does not consist solely of
using the work of others in one's own work, but of the former in conjunction with the failure to attribute said work to its
rightful owner and thereby, as in the case of written work, misrepresenting the work of another as one's own. As the work
is another's and used without attribution, the plagiarist derives the benefit of use from the plagiarized work without
expending the requisite effort for the same ─ at a cost (as in the concept of "opportunity cost") to its author who could
otherwise have gained credit for the work and whatever compensation for its use is deemed appropriate and necessary.
If the question of plagiarism, then, turns on a failure of attribution, judicial plagiarism in the case at bar "arises when
judges author opinions that employ materials from copyrighted sources such as law journals or books, but neglect to give
credit to the author."16 Doing so effectively implies the staking of a claim on the copied work as the judge's own. 17 Note
that there is no requirement of extent of copying or a minimum number of instances of unattributed usage for an act to be
considered a plagiarist act, nor is the intent to deceive or to copy without attribution a prerequisite of plagiarism. In
Dursht's exhaustive analysis of judicial plagiarism she cites the case of Newman v. Burgin18 wherein the court said that
plagiarism may be done "through negligence or recklessness without intent to deceive." 19 Dursht in addition notes that
intent may also be taken as the intent to claim authorship of the copied work, whether or not there was intent to deceive,
citing Napolitano v. Trustees of Princeton Univ.20
George describes the following among the types of judicial plagiarism:
Borrowed Text: When quoting a legal periodical, law review, treatise or other such source, the judicial writer must
surround the borrowed text with quotation marks or use a block quote. . . . Additionally, the source should be referenced in
the text . . .
Using another's language verbatim without using quotation marks or a block quote is intentional, as opposed to
unintentional, plagiarism.
Reference errors: The judge may fail to put quotation marks around a clause, phrase or paragraph that is a direct quote
from another's writing even though he cites the author correctly. This is plagiarism even though it may be inadvertent. 21
While indeed the notion of having committed judicial plagiarism may be unsettling to contemplate, as it may raise in the
mind of a judge the question of his or her own culpability22, it is a grievous mistake to overlook the possibility of the
commission of judicial plagiarism or the fact that judicial plagiarism is categorized by its very definition as a subset of
plagiarism. That a judge, in lifting words from a source and failing to attribute said words to said source in the writing of a
decision, committed specifically judicial plagiarism does not derogate from the nature of the act as a plagiarist act. Nor
does any claim of inadvertence or lack of intent in the commission of a plagiarist act change the characterization of the act
as plagiarism.
Penalties for Plagiarism and

Judicial Plagiarism
In the academe, plagiarism is generally dealt with severely when found out; many universities have policies on plagiarism
detailing the sanctions that may be imposed on students who are found to have plagiarized in their coursework and other
academic requirements. These run the gamut from an automatic failing grade in the course for which the offending work
was submitted, or in more egregious cases, outright expulsion from the university. Sanctions for plagiarism in the
academe operate through "the denial of certification or recognition of achievement" 23 to the extent of rescinding or
denying degrees. In the case of law students who do manage to obtain their degrees, their admission to the bar may be
hindered due to questions about their "character or fitness to practice law."24 Indeed, plagiarism, due to the severity of the
penalties it may incur, is often identified with the punishment of "academic death."25 The academe justifies the harshness
of the sanctions it imposes with the seriousness of the offense: plagiarism is seen not only to undermine the credibility and
importance of scholarship, but also to deprive the rightful author of what is often one of the most valuable currencies in the
academe: credit for intellectual achievement ─ an act of debasing the coinage, as it were. Thus the rules of many
academic institutions sanctioning plagiarism as a violation of academic ethics and a serious offense often classed under
the broader heading of "academic dishonesty."
The imposition of sanctions for acts of judicial plagiarism, however, is not as clear-cut. While George recognizes the lack
of attribution as the fundamental mark of judicial plagiarism, she notes in the same breath that the act is "without legal
sanction."26 Past instances of censure notwithstanding (as in examples of condemnation of plagiarism cited by Lebovits et
al27, most particularly the censure of the actions of the judge who plagiarized a law-review article in Brennan28; the
admonition issued by the Canadian Federal Court of Appeal in the case of Apotex29) there is still no strictly prevailing
consensus regarding the need or obligation to impose sanctions on judges who have committed acts of judicial
plagiarism. This may be due in a large part to the absence of expectations of originality in the decisions penned by judges,
as courts are required to "consider and usually . . . follow precedent." 30 In so fulfilling her obligations, it may become
imperative for the judge to use "the legal reasoning and language [of others e.g. a supervising court or a law review
article] for resolution of the dispute."31 Although these obligations of the judicial writer must be acknowledged, care should
be taken to consider that said obligations do not negate the need for attribution so as to avoid the commission of judicial
plagiarism. Nor do said obligations diminish the fact that judicial plagiarism "detracts directly from the legitimacy of the
judge's ruling and indirectly from the judiciary's legitimacy"32 or that it falls far short of the high ethical standards to which
judges must adhere33. The lack of definitiveness in sanctions for judicial plagiarism may also be due to the reluctance of
judges themselves to confront the issue of plagiarism in the context of judicial writing; the apprehension caused by
"feelings of guilt" being due to "the possibility that plagiarism has unknowingly or intentionally been committed" and a
"traditional" hesitance to consider plagiarism as "being applicable to judicial writings." 34
Findings of judicial plagiarism do not necessarily carry with them the imposition of sanctions, nor do they present
unequivocal demands for rehearing or the reversal of rulings. In Liggett Group, Inc., et al v Harold M. Engle, M.D. et al35, a
U.S. tobacco class action suit, "[the] plaintiffs' counsel filed a motion for rehearing alleging that the appellate opinion
copied large portions of the defendants' briefs. . . . without attribution." The result of this, the plaintiffs claimed, was the
creation of the "appearance of impropriety," the abdication of judicative duties, the relinquishing of independence to
defendants, the failure to maintain impartiality, and therefore, as an act of judicial plagiarism, was "a misrepresentation of
the facts found by the trial court and denied plaintiffs due process of law."36 The three-judge panel denied the motion. In
addition, "courts generally have been reluctant to reverse for the verbatim adoption of prepared findings."37 In Anderson v.
City of Bessemer City, North Carolina38 it was held that even though the trial judge's findings of fact may have been
adopted verbatim from the prevailing party, the findings "may be reversed only if clearly erroneous." 39
On Guilt and Hypocrisy

It is not hypocrisy, contrary to what is implied in a statement in the majority Decision, to make a finding of plagiarism when
plagiarism exists. To conclude thus is to condemn wholesale all the academic thesis committees, student disciplinary
tribunals and editorial boards who have made it their business to ensure that no plagiarism is tolerated in their institutions
and industry. In accepting those review and quality control responsibilities, they are not making themselves out to be
error-free, but rather, they are exerting themselves to improve the level of honesty in the original works generated in their
institution so that the coinage and currency of intellectual life – originality and the attribution of originality – is maintained.
The incentive system of intellectual creation is made to work so that the whole society benefits from the encouraged
output.
In the case of judicial plagiarism, it is entirely possible for judges to have violated the rules against plagiarism out of
ignorance or from the sheer fact that in order to cope with their caseloads, they have to rely on researchers for part of the
work. That would have been a very interesting argument to consider. But ignorance is not pleaded here, nor is the inability
to supervise a legal researcher pleaded to escape liability on the part of the ponente. Rather, the defense was that no
plagiarism existed. This conclusion however is unacceptable for the reasons stated above.
As noted above, writers have ventured to say that the reluctance to address judicial plagiarism may stem from fear, nay,
guilt.40 Fear that the judge who says plagiarism was committed by another is himself guilty of plagiarism. But that is
neither here nor there. We must apply the conventions against judicial plagiarism because we must, having taken on that
obligation when the Court took cognizance of the plagiarism complaint, not because any one of us is error-free. In fact, the
statement on hypocrisy in the majority Decision betrays prejudgment of the complainants as hypocrites, and a complaint
against a sitting judge for plagiarism would appear impossible to win.
In a certain sense, there should have been less incentive to plagiarize law review articles because the currency of judges
is stare decisis. One wonders how the issue should have been treated had what was plagiarized been a court ruling, but
that is not at issue here. The analysis in this opinion is therefore confined to the peculiar situation of a judge who issues a
decision that plagiarizes law review articles, not to his copying of precedents or parts of the pleadings of the parties to a
case.
As earlier said, a determination of the existence of plagiarism in decision-making is not conclusive on the disciplinary
measure to be imposed. Different jurisdictions have different treatments. At the very least however, the process of
rectification must start from an acknowledgment and apology for the offense. After such have been done, then
consideration of the circumstances that mitigate the offense are weighed. But not before then.
The Unfortunate Result of

the Majority Decision
Unless reconsidered, this Court would unfortunately be remembered as the Court that made "malicious intent" an
indispensable element of plagiarism and that made computer-keying errors an exculpatory fact in charges of plagiarism,
without clarifying whether its ruling applies only to situations of judicial decision-making or to other written intellectual
activity. It will also weaken this Court’s disciplinary authority ─ the essence of which proceeds from its moral authority ─
over the bench and bar. In a real sense, this Court has rendered tenuous its ability to positively educate and influence the
future of intellectual and academic discourse.
The Way Forward
Assuming that the Court had found that judicial plagiarism had indeed been committed in the Vinuya decision, the Court
could then have moved to the next logical question: what then is the legal responsibility of the ponente of the Vinuya
decision for having passed on to the Court en banc a ponencia that contains plagiarized parts?
There would have been at that point two possible choices for the Court vis-à-vis the ponente ─ to subject him to
disciplinary measures or to excuse him. In order to determine whether the acts committed would have warranted
discipline, the Court should have laid down the standard of diligence and responsibility that a judge has over his actions,
as well as the disciplinary measures that are available and appropriate.
The Court could also have chosen to attribute liability to the researcher who had admitted to have caused the plagiarism.
In In re Hinden, disciplinary measures were imposed on an attorney who plagiarized law review articles. 41
Response to the Decretal

Portion of the Majority Decision
In view of the above, it is my opinion:
1. That Justice Mariano C. del Castillo and his unnamed researcher have committed plagiarism in the drafting and
passing on of the ponencia in the Vinuya decision;
2. That this Court should request Justice del Castillo to acknowledge the plagiarism and apologize to the
complaining authors for his mistake;
3. That this Court should cause the issuance of a corrected version of the Vinuya decision in the form of a
"Corrigendum";
4. That court attorneys should be provided with the appropriate manuals on writing and legal citation, and should
be informed that the excerpts complained of and described in Tables A, B, and C of this opinion are acts of
plagiarism and not mere editing errors or computer-generated mistakes;
5. That the refusal of the majority to pronounce that plagiarism was committed by Justice del Castillo means that
any judicial opinion on his liability or that of his researcher would be academic and speculative, a ruling which this
Dissenting Opinion will not venture to make a pronouncement on; and
6. That a copy of this Dissenting Opinion should be circulated by the Public Information Office in the same
manner as the Majority Decision to the complaining authors Christian J. Tams, Mark Ellis, Evan Criddle and Evan
Fox-Decent.
MARIA LOURDES P. A. SERENO

Associate Justice
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-52415 October 23, 1984
INSULAR BANK OF ASIA AND AMERICA EMPLOYEES' UNION (IBAAEU), petitioner,

vs.
HON. AMADO G. INCIONG, Deputy Minister, Ministry of Labor and INSULAR BANK OF ASIA AND
AMERICA, respondents.
Sisenando R. Villaluz, Jr. for petitioner.
Abdulmaid Kiram Muin colloborating counsel for petitioner.
The Solicitor General Caparas, Tabios, Ilagan Alcantara & Gatmaytan Law Office and Sycip, Salazar, Feliciano &
Hernandez Law Office for respondents.
MAKASIAR, J.:ñé+.£ªwph!1
This is a petition for certiorari to set aside the order dated November 10, 1979, of respondent Deputy Minister of Labor,
Amado G. Inciong, in NLRC case No. RB-IV-1561-76 entitled "Insular Bank of Asia and America Employees' Union
(complainant-appellee), vs. Insular Bank of Asia and America" (respondent-appellant), the dispositive portion of which
reads as follows: têñ.£îhqwâ£
xxx xxx xxx
ALL THE FOREGOING CONSIDERED, let the appealed Resolution en banc of the National Labor
Relations Commission dated 20 June 1978 be, as it is hereby, set aside and a new judgment.
promulgated dismissing the instant case for lack of merit (p. 109 rec.).
The antecedent facts culled from the records are as follows:
On June 20, 1975, petitioner filed a complaint against the respondent bank for the payment of holiday pay before the then
Department of Labor, National Labor Relations Commission, Regional Office No. IV in Manila. Conciliation having failed,
and upon the request of both parties, the case was certified for arbitration on July 7, 1975 (p. 18, NLRC rec.
On August 25, 1975, Labor Arbiter Ricarte T. Soriano rendered a decision in the above-entitled case, granting petitioner's
complaint for payment of holiday pay. Pertinent portions of the decision read: têñ.£îhqwâ£
xxx xxx xxx
The records disclosed that employees of respondent bank were not paid their wages on unworked regular
holidays as mandated by the Code, particularly Article 208, to wit: têñ.£îhqwâ£
Art. 208. Right to holiday pay.
(a) Every worker shall be paid his regular daily wage during regular holidays, except in
retail and service establishments regularly employing less than 10 workers.
(b) The term "holiday" as used in this chapter, shall include: New Year's Day, Maundy
Thursday, Good Friday, the ninth of April the first of May, the twelfth of June, the fourth of
July, the thirtieth of November, the twenty-fifth and the thirtieth of December and the day
designated by law for holding a general election.
xxx xxx xxx
This conclusion is deduced from the fact that the daily rate of pay of the bank employees was computed
in the past with the unworked regular holidays as excluded for purposes of determining the deductible
amount for absences incurred Thus, if the employer uses the factor 303 days as a divisor in determining
the daily rate of monthly paid employee, this gives rise to a presumption that the monthly rate does not
include payments for unworked regular holidays. The use of the factor 303 indicates the number of
ordinary working days in a year (which normally has 365 calendar days), excluding the 52 Sundays and
the 10 regular holidays. The use of 251 as a factor (365 calendar days less 52 Saturdays, 52 Sundays,
and 10 regular holidays) gives rise likewise to the same presumption that the unworked Saturdays,
Sundays and regular holidays are unpaid. This being the case, it is not amiss to state with certainty that
the instant claim for wages on regular unworked holidays is found to be tenable and meritorious.
WHEREFORE, judgment is hereby rendered:
(a) xxx xxxx xxx
(b) Ordering respondent to pay wages to all its employees for all regular h(olidays since November 1,
1974 (pp. 97-99, rec., underscoring supplied).
Respondent bank did not appeal from the said decision. Instead, it complied with the order of Arbiter Ricarte T. Soriano by
paying their holiday pay up to and including January, 1976.
On December 16, 1975, Presidential Decree No. 850 was promulgated amending, among others, the provisions of the
Labor Code on the right to holiday pay to read as follows: têñ.£îhqwâ£
Art. 94. Right to holiday pay. — (a) Every worker shall be paid his regular daily wages during regular
holidays, except in retail and service establishments regularly employing less than ten (10) workers;
(b) The employer may require an employee to work on any holiday but such employee shall be paid a
compensation equivalent to twice his regular rate and
(c) As used in this Article, "holiday" includes New Year's Day, Maundy Thursday, Good Friday, the ninth
of April, the first of May, the twelfth of June, the fourth of July, the thirtieth of November, the twenty-fifth
and the thirtieth of December, and the day designated by law for holding a general election.
Accordingly, on February 16, 1976, by authority of Article 5 of the same Code, the Department of Labor (now Ministry of
Labor) promulgated the rules and regulations for the implementation of holidays with pay. The controversial section
thereof reads: têñ.£îhqwâ£
Sec. 2. Status of employees paid by the month. — Employees who are uniformly paid by the month,
irrespective of the number of working days therein, with a salary of not less than the statutory or
established minimum wage shall be presumed to be paid for all days in the month whether worked or not.
For this purpose, the monthly minimum wage shall not be less than the statutory minimum wage
multiplied by 365 days divided by twelve" (italics supplied).
On April 23, 1976, Policy Instruction No. 9 was issued by the then Secretary of Labor (now Minister) interpreting the
above-quoted rule, pertinent portions of which read: têñ.£îhqwâ£
xxx xxx xxx
The ten (10) paid legal holidays law, to start with, is intended to benefit principally daily employees. In the
case of monthly, only those whose monthly salary did not yet include payment for the ten (10) paid legal
holidays are entitled to the benefit.
Under the rules implementing P.D. 850, this policy has been fully clarified to eliminate controversies on
the entitlement of monthly paid employees, The new determining rule is this: If the monthly paid employee
is receiving not less than P240, the maximum monthly minimum wage, and his monthly pay is uniform
from January to December, he is presumed to be already paid the ten (10) paid legal holidays. However,
if deductions are made from his monthly salary on account of holidays in months where they occur, then
he is still entitled to the ten (10) paid legal holidays. ..." (emphasis supplied).
Respondent bank, by reason of the ruling laid down by the aforecited rule implementing Article 94 of the Labor Code and
by Policy Instruction No. 9, stopped the payment of holiday pay to an its employees.
On August 30, 1976, petitioner filed a motion for a writ of execution to enforce the arbiter's decision of August 25, 1975,
whereby the respondent bank was ordered to pay its employees their daily wage for the unworked regular holidays.
On September 10, 1975, respondent bank filed an opposition to the motion for a writ of execution alleging, among others,
that: (a) its refusal to pay the corresponding unworked holiday pay in accordance with the award of Labor Arbiter Ricarte
T. Soriano dated August 25, 1975, is based on and justified by Policy Instruction No. 9 which interpreted the rules
implementing P. D. 850; and (b) that the said award is already repealed by P.D. 850 which took effect on December 16,
1975, and by said Policy Instruction No. 9 of the Department of Labor, considering that its monthly paid employees are not
receiving less than P240.00 and their monthly pay is uniform from January to December, and that no deductions are
made from the monthly salaries of its employees on account of holidays in months where they occur (pp. 64-65, NLRC
rec.).
On October 18, 1976, Labor Arbiter Ricarte T. Soriano, instead of issuing a writ of execution, issued an order enjoining
the respondent bank to continue paying its employees their regular holiday pay on the following grounds: (a) that the
judgment is already final and the findings which is found in the body of the decision as well as the dispositive portion
thereof is res judicata or is the law of the case between the parties; and (b) that since the decision had been partially
implemented by the respondent bank, appeal from the said decision is no longer available (pp. 100-103, rec.).
On November 17, 1976, respondent bank appealed from the above-cited order of Labor Arbiter Soriano to the National
Labor Relations Commission, reiterating therein its contentions averred in its opposition to the motion for writ of execution.
Respondent bank further alleged for the first time that the questioned order is not supported by evidence insofar as it finds
that respondent bank discontinued payment of holiday pay beginning January, 1976 (p. 84, NLRC rec.).
On June 20, 1978, the National Labor Relations Commission promulgated its resolution en banc dismissing respondent
bank's appeal, the dispositive portion of which reads as follows: têñ.£îhqwâ£
In view of the foregoing, we hereby resolve to dismiss, as we hereby dismiss, respondent's appeal; to set
aside Labor Arbiter Ricarte T. Soriano's order of 18 October 1976 and, as prayed for by complainant, to
order the issuance of the proper writ of execution (p. 244, NLRC rec.).
Copies of the above resolution were served on the petitioner only on February 9, 1979 or almost eight. (8) months after it
was promulgated, while copies were served on the respondent bank on February 13, 1979.
On February 21, 1979, respondent bank filed with the Office of the Minister of Labor a motion for reconsideration/appeal
with urgent prayer to stay execution, alleging therein the following: (a) that there is prima facie evidence of grave abuse of
discretion, amounting to lack of jurisdiction on the part of the National Labor Relations Commission, in dismissing the
respondent's appeal on pure technicalities without passing upon the merits of the appeal and (b) that the resolution
appealed from is contrary to the law and jurisprudence (pp. 260-274, NLRC rec.).
On March 19, 1979, petitioner filed its opposition to the respondent bank's appeal and alleged the following grounds: (a)
that the office of the Minister of Labor has no jurisdiction to entertain the instant appeal pursuant to the provisions of P. D.
1391; (b) that the labor arbiter's decision being final, executory and unappealable, execution is a matter of right for the
petitioner; and (c) that the decision of the labor arbiter dated August 25, 1975 is supported by the law and the evidence in
the case (p. 364, NLRC rec.).
On July 30, 1979, petitioner filed a second motion for execution pending appeal, praying that a writ of execution be issued
by the National Labor Relations Commission pending appeal of the case with the Office of the Minister of Labor.
Respondent bank filed its opposition thereto on August 8, 1979.
On August 13, 1979, the National Labor Relations Commission issued an order which states: têñ.£îhqwâ£
The Chief, Research and Information Division of this Commission is hereby directed to designate a Socio-
Economic Analyst to compute the holiday pay of the employees of the Insular Bank of Asia and America
from April 1976 to the present, in accordance with the Decision of the Labor Arbiter dated August 25,
1975" (p. 80, rec.).
On November 10, 1979, the Office of the Minister of Labor, through Deputy Minister Amado G. Inciong, issued an order,
the dispositive portion of which states: têñ.£îhqwâ£
ALL THE FOREGOING CONSIDERED, let the appealed Resolution en banc of the National Labor
Relations Commission dated 20 June 1978 be, as it is hereby, set aside and a new judgment
promulgated dismissing the instant case for lack of merit (p. 436, NLRC rec.).
Hence, this petition for certiorari charging public respondent Amado G. Inciong with abuse of discretion amounting to lack
or excess of jurisdiction.
The issue in this case is: whether or not the decision of a Labor Arbiter awarding payment of regular holiday pay can still
be set aside on appeal by the Deputy Minister of Labor even though it has already become final and had been partially
executed, the finality of which was affirmed by the National Labor Relations Commission sitting en banc, on the basis of
an Implementing Rule and Policy Instruction promulgated by the Ministry of Labor long after the said decision had become
final and executory.
WE find for the petitioner.
WE agree with the petitioner's contention that Section 2, Rule IV, Book III of the implementing rules and Policy Instruction
No. 9 issued by the then Secretary of Labor are null and void since in the guise of clarifying the Labor Code's provisions
on holiday pay, they in effect amended them by enlarging the scope of their exclusion (p. 1 1, rec.).
Article 94 of the Labor Code, as amended by P.D. 850, provides: têñ.£îhqwâ£
Art. 94. Right to holiday pay. — (a) Every worker shall be paid his regular daily wage during regular
holidays, except in retail and service establishments regularly employing less than ten (10) workers. ...
The coverage and scope of exclusion of the Labor Code's holiday pay provisions is spelled out under Article 82 thereof
which reads: têñ.£îhqwâ£
Art. 82. Coverage. — The provision of this Title shall apply to employees in all establishments and
undertakings, whether for profit or not, but not to government employees, managerial employees, field
personnel members of the family of the employer who are dependent on him for support domestic
helpers, persons in the personal service of another, and workers who are paid by results as determined
by the Secretary of Labor in appropriate regulations.
... (emphasis supplied).
From the above-cited provisions, it is clear that monthly paid employees are not excluded from the benefits of holiday pay.
However, the implementing rules on holiday pay promulgated by the then Secretary of Labor excludes monthly paid
employees from the said benefits by inserting, under Rule IV, Book Ill of the implementing rules, Section 2, which provides
that: "employees who are uniformly paid by the month, irrespective of the number of working days therein, with a salary of
not less than the statutory or established minimum wage shall be presumed to be paid for all days in the month whether
worked or not. "
Public respondent maintains that "(T)he rules implementing P. D. 850 and Policy Instruction No. 9 were issued to clarify
the policy in the implementation of the ten (10) paid legal holidays. As interpreted, 'unworked' legal holidays are deemed
paid insofar as monthly paid employees are concerned if (a) they are receiving not less than the statutory minimum wage,
(b) their monthly pay is uniform from January to December, and (c) no deduction is made from their monthly salary on
account of holidays in months where they occur. As explained in Policy Instruction No, 9, 'The ten (10) paid legal holidays
law, to start with, is intended to benefit principally daily paid employees. In case of monthly, only those whose monthly
salary did not yet include payment for the ten (10) paid legal holidays are entitled to the benefit' " (pp. 340-341, rec.). This
contention is untenable.
It is elementary in the rules of statutory construction that when the language of the law is clear and unequivocal the law
must be taken to mean exactly what it says. In the case at bar, the provisions of the Labor Code on the entitlement to the
benefits of holiday pay are clear and explicit - it provides for both the coverage of and exclusion from the benefits. In
Policy Instruction No. 9, the then Secretary of Labor went as far as to categorically state that the benefit is principally
intended for daily paid employees, when the law clearly states that every worker shall be paid their regular holiday pay.
This is a flagrant violation of the mandatory directive of Article 4 of the Labor Code, which states that "All doubts in the
implementation and interpretation of the provisions of this Code, including its implementing rules and regulations, shall be
resolved in favor of labor." Moreover, it shall always be presumed that the legislature intended to enact a valid and
permanent statute which would have the most beneficial effect that its language permits (Orlosky vs. Haskell, 155 A. 112.)
Obviously, the Secretary (Minister) of Labor had exceeded his statutory authority granted by Article 5 of the Labor Code
authorizing him to promulgate the necessary implementing rules and regulations.
Public respondent vehemently argues that the intent and spirit of the holiday pay law, as expressed by the Secretary of
Labor in the case of Chartered Bank Employees Association v. The Chartered Bank (NLRC Case No. RB-1789-75, March
24, 1976), is to correct the disadvantages inherent in the daily compensation system of employment — holiday pay is
primarily intended to benefit the daily paid workers whose employment and income are circumscribed by the principle of
"no work, no pay." This argument may sound meritorious; but, until the provisions of the Labor Code on holiday pay is
amended by another law, monthly paid employees are definitely included in the benefits of regular holiday pay. As earlier
stated, the presumption is always in favor of law, negatively put, the Labor Code is always strictly construed against
management.
While it is true that the contemporaneous construction placed upon a statute by executive officers whose duty is to
enforce it should be given great weight by the courts, still if such construction is so erroneous, as in the instant case, the
same must be declared as null and void. It is the role of the Judiciary to refine and, when necessary, correct constitutional
(and/or statutory) interpretation, in the context of the interactions of the three branches of the government, almost always
in situations where some agency of the State has engaged in action that stems ultimately from some legitimate area of
governmental power (The Supreme Court in Modern Role, C. B. Swisher 1958, p. 36).
Thus. in the case of Philippine Apparel Workers Union vs. National Labor Relations Commission (106 SCRA 444, July 31,
1981) where the Secretary of Labor enlarged the scope of exemption from the coverage of a Presidential Decree granting
increase in emergency allowance, this Court ruled that: têñ.£îhqwâ£
... the Secretary of Labor has exceeded his authority when he included paragraph (k) in Section 1 of the
Rules implementing P. D. 1 1 23.
xxx xxx xxx
Clearly, the inclusion of paragraph k contravenes the statutory authority granted to the Secretary of
Labor, and the same is therefore void, as ruled by this Court in a long line of cases . . . .. têñ.£îhqwâ£
The recognition of the power of administrative officials to promulgate rules in the

administration of the statute, necessarily limited to what is provided for in the legislative
enactment, may be found in the early case of United States vs. Barrios decided in 1908.
Then came in a 1914 decision, United States vs. Tupasi Molina (29 Phil. 119) delineation
of the scope of such competence. Thus: "Of course the regulations adopted under
legislative authority by a particular department must be in harmony with the provisions of
the law, and for the sole purpose of carrying into effect its general provisions. By such
regulations, of course, the law itself cannot be extended. So long, however, as the
regulations relate solely to carrying into effect the provisions of the law, they are valid." In
1936, in People vs. Santos, this Court expressed its disapproval of an administrative
order that would amount to an excess of the regulatory power vested in an administrative
official We reaffirmed such a doctrine in a 1951 decision, where we again made clear that
where an administrative order betrays inconsistency or repugnancy to the provisions of
the Act, 'the mandate of the Act must prevail and must be followed. Justice Barrera,
speaking for the Court in Victorias Milling inc. vs. Social Security Commission, citing
Parker as well as Davis did tersely sum up the matter thus: "A rule is binding on the
Courts so long as the procedure fixed for its promulgation is followed and its scope is
within the statutory authority granted by the legislature, even if the courts are not in
agreement with the policy stated therein or its innate wisdom. ... On the other hand,
administrative interpretation of the law is at best merely advisory, for it is the courts that
finally determine chat the law means."
"It cannot be otherwise as the Constitution limits the authority of the President, in whom
all executive power resides, to take care that the laws be faithfully executed. No lesser
administrative executive office or agency then can, contrary to the express language of
the Constitution assert for itself a more extensive prerogative. Necessarily, it is bound to
observe the constitutional mandate. There must be strict compliance with the legislative
enactment. Its terms must be followed the statute requires adherence to, not departure
from its provisions. No deviation is allowable. In the terse language of the present Chief
Justice, an administrative agency "cannot amend an act of Congress." Respondents can
be sustained, therefore, only if it could be shown that the rules and regulations
promulgated by them were in accordance with what the Veterans Bill of Rights provides"
(Phil. Apparel Workers Union vs. National Labor Relations Commission, supra, 463, 464,
citing Teozon vs. Members of the Board of Administrators, PVA 33 SCRA 585; see also
Santos vs. Hon. Estenzo, et al, 109 Phil. 419; Hilado vs. Collector of Internal Revenue,
100 Phil. 295; Sy Man vs. Jacinto & Fabros, 93 Phil. 1093; Olsen & Co., Inc. vs.
Aldanese and Trinidad, 43 Phil. 259).
This ruling of the Court was recently reiterated in the case of American Wire & Cable Workers Union (TUPAS) vs. The
National Labor Relations Commission and American Wire & Cable Co., Inc., G.R. No. 53337, promulgated on June 29,
1984.
In view of the foregoing, Section 2, Rule IV, Book III of the Rules to implement the Labor Code and Policy instruction No.
9 issued by the then Secretary of Labor must be declared null and void. Accordingly, public respondent Deputy Minister of
Labor Amado G. Inciong had no basis at all to deny the members of petitioner union their regular holiday pay as directed
by the Labor Code.
II
It is not disputed that the decision of Labor Arbiter Ricarte T. Soriano dated August 25, 1975, had already become final,
and was, in fact, partially executed by the respondent bank.
However, public respondent maintains that on the authority of De Luna vs. Kayanan, 61 SCRA 49, November 13, 1974,
he can annul the final decision of Labor Arbiter Soriano since the ensuing promulgation of the integrated implementing
rules of the Labor Code pursuant to P.D. 850 on February 16, 1976, and the issuance of Policy Instruction No. 9 on April
23, 1976 by the then Secretary of Labor are facts and circumstances that transpired subsequent to the promulgation of
the decision of the labor arbiter, which renders the execution of the said decision impossible and unjust on the part of
herein respondent bank (pp. 342-343, rec.).
This contention is untenable.
To start with, unlike the instant case, the case of De Luna relied upon by the public respondent is not a labor case wherein
the express mandate of the Constitution on the protection to labor is applied. Thus Article 4 of the Labor Code provides
that, "All doubts in the implementation and interpretation of the provisions of this Code, including its implementing rules
and regulations, shall be resolved in favor of labor and Article 1702 of the Civil Code provides that, " In case of doubt, all
labor legislation and all labor contracts shall be construed in favor of the safety and decent living for the laborer.
Consequently, contrary to public respondent's allegations, it is patently unjust to deprive the members of petitioner union
of their vested right acquired by virtue of a final judgment on the basis of a labor statute promulgated following the
acquisition of the "right".
On the question of whether or not a law or statute can annul or modify a judicial order issued prior to its promulgation, this
Court, through Associate Justice Claro M. Recto, said: têñ.£îhqwâ£
xxx xxx xxx

We are decidedly of the opinion that they did not. Said order, being unappealable, became final on the
date of its issuance and the parties who acquired rights thereunder cannot be deprived thereof by a
constitutional provision enacted or promulgated subsequent thereto. Neither the Constitution nor the
statutes, except penal laws favorable to the accused, have retroactive effect in the sense of annulling or
modifying vested rights, or altering contractual obligations" (China Ins. & Surety Co. vs. Judge of First
Instance of Manila, 63 Phil. 324, emphasis supplied).
In the case of In re: Cunanan, et al., 19 Phil. 585, March 18, 1954, this Court said: "... when a court renders a decision or
promulgates a resolution or order on the basis of and in accordance with a certain law or rule then in force, the
subsequent amendment or even repeal of said law or rule may not affect the final decision, order, or resolution already
promulgated, in the sense of revoking or rendering it void and of no effect." Thus, the amendatory rule (Rule IV, Book III of
the Rules to Implement the Labor Code) cannot be given retroactive effect as to modify final judgments. Not even a law
can validly annul final decisions (In re: Cunanan, et al., Ibid).
Furthermore, the facts of the case relied upon by the public respondent are not analogous to that of the case at bar. The
case of De Luna speaks of final and executory judgment, while iii the instant case, the final judgment is partially executed.
just as the court is ousted of its jurisdiction to annul or modify a judgment the moment it becomes final, the court also
loses its jurisdiction to annul or modify a writ of execution upon its service or execution; for, otherwise, we will have a
situation wherein a final and executed judgment can still be annulled or modified by the court upon mere motion of a panty
This would certainly result in endless litigations thereby rendering inutile the rule of law.
Respondent bank counters with the argument that its partial compliance was involuntary because it did so under pain of
levy and execution of its assets (p. 138, rec.). WE find no merit in this argument. Respondent bank clearly manifested its
voluntariness in complying with the decision of the labor arbiter by not appealing to the National Labor Relations
Commission as provided for under the Labor Code under Article 223. A party who waives his right to appeal is deemed to
have accepted the judgment, adverse or not, as correct, especially if such party readily acquiesced in the judgment by
starting to execute said judgment even before a writ of execution was issued, as in this case. Under these circumstances,
to permit a party to appeal from the said partially executed final judgment would make a mockery of the doctrine of finality
of judgments long enshrined in this jurisdiction.
Section I of Rule 39 of the Revised Rules of Court provides that "... execution shall issue as a matter of right upon the
expiration of the period to appeal ... or if no appeal has been duly perfected." This rule applies to decisions or orders of
labor arbiters who are exercising quasi-judicial functions since "... the rule of execution of judgments under the rules
should govern all kinds of execution of judgment, unless it is otherwise provided in other laws" Sagucio vs. Bulos 5 SCRA
803) and Article 223 of the Labor Code provides that "... decisions, awards, or orders of the Labor Arbiter or compulsory
arbitrators are final and executory unless appealed to the Commission by any or both of the parties within ten (10) days
from receipt of such awards, orders, or decisions. ..."
Thus, under the aforecited rule, the lapse of the appeal period deprives the courts of jurisdiction to alter the final judgment
and the judgment becomes final ipso jure (Vega vs. WCC, 89 SCRA 143, citing Cruz vs. WCC, 2 PHILAJUR 436, 440,
January 31, 1978; see also Soliven vs. WCC, 77 SCRA 621; Carrero vs. WCC and Regala vs. WCC, decided jointly, 77
SCRA 297; Vitug vs. Republic, 75 SCRA 436; Ramos vs. Republic, 69 SCRA 576).
In Galvez vs. Philippine Long Distance Telephone Co., 3 SCRA 422, 423, October 31, 1961, where the lower court
modified a final order, this Court ruled thus: têñ.£îhqwâ£
xxx xxx xxx
The lower court was thus aware of the fact that it was thereby altering or modifying its order of January 8,
1959. Regardless of the excellence of the motive for acting as it did, we are constrained to hold however,
that the lower court had no authorities to make said alteration or modification. ...
xxx xxx xxx
The equitable considerations that led the lower court to take the action complained of cannot offset the
dem ands of public policy and public interest — which are also responsive to the tenets of equity —
requiring that an issues passed upon in decisions or final orders that have become executory, be deemed
conclusively disposed of and definitely closed for, otherwise, there would be no end to litigations, thus
setting at naught the main role of courts of justice, which is to assist in the enforcement of the rule of law
and the maintenance of peace and order, by settling justiciable controversies with finality.
xxx xxx xxx
In the recent case of Gabaya vs. Mendoza, 113 SCRA 405, 406, March 30, 1982, this Court said: têñ.£îhqwâ£
xxx xxx xxx
In Marasigan vs. Ronquillo (94 Phil. 237), it was categorically stated that the rule is absolute that after a
judgment becomes final by the expiration of the period provided by the rules within which it so becomes,
no further amendment or correction can be made by the court except for clerical errors or mistakes. And
such final judgment is conclusive not only as to every matter which was offered and received to sustain or
defeat the claim or demand but as to any other admissible matter which must have been offered for that
purpose (L-7044, 96 Phil. 526). In the earlier case of Contreras and Ginco vs. Felix and China Banking
Corp., Inc. (44 O.G. 4306), it was stated that the rule must be adhered to regardless of any possible
injustice in a particular case for (W)e have to subordinate the equity of a particular situation to the over-
mastering need of certainty and immutability of judicial pronouncements
xxx xxx xxx
III
The despotic manner by which public respondent Amado G. Inciong divested the members of the petitioner union of their
rights acquired by virtue of a final judgment is tantamount to a deprivation of property without due process of law Public
respondent completely ignored the rights of the petitioner union's members in dismissing their complaint since he knew for
a fact that the judgment of the labor arbiter had long become final and was even partially executed by the respondent
bank.
A final judgment vests in the prevailing party a right recognized and protected by law under the due process clause of the
Constitution (China Ins. & Surety Co. vs. Judge of First Instance of Manila, 63 Phil. 324). A final judgment is "a vested
interest which it is right and equitable that the government should recognize and protect, and of which the individual could
no. be deprived arbitrarily without injustice" (Rookledge v. Garwood, 65 N.W. 2d 785, 791).
lt is by this guiding principle that the due process clause is interpreted. Thus, in the pithy language of then Justice, later
Chief Justice, Concepcion "... acts of Congress, as well as those of the Executive, can deny due process only under pain
of nullity, and judicial proceedings suffering from the same flaw are subject to the same sanction, any statutory provision
to the contrary notwithstanding (Vda. de Cuaycong vs. Vda. de Sengbengco 110 Phil. 118, emphasis supplied), And "(I)t
has been likewise established that a violation of a constitutional right divested the court of jurisdiction; and as a
consequence its judgment is null and void and confers no rights" (Phil. Blooming Mills Employees Organization vs. Phil.
Blooming Mills Co., Inc., 51 SCRA 211, June 5, 1973).
Tested by and pitted against this broad concept of the constitutional guarantee of due process, the action of public
respondent Amado G. Inciong is a clear example of deprivation of property without due process of law and constituted
grave abuse of discretion, amounting to lack or excess of jurisdiction in issuing the order dated November 10, 1979.
WHEREFORE, THE PETITION IS HEREBY GRANTED, THE ORDER OF PUBLIC RESPONDENT IS SET ASIDE, AND
THE DECISION OF LABOR ARBITER RICARTE T. SORIANO DATED AUGUST 25, 1975, IS HEREBY REINSTATED.
COSTS AGAINST PRIVATE RESPONDENT INSULAR BANK OF ASIA AND AMERICA
SO ORDERED.1äwphï1.ñët
Guerrero, Escolin and Cuevas, JJ., concur.
Aquino and Abad Santos, JJ., concur in the result.
Concepcion Jr., J., took no part.

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 119645 August 22, 1996
SPO3 NOEL CABADA and SPO3 RODOLFO G. DE GUZMAN, petitioners,

vs.
HON. RAFAEL M. ALUNAN III, Secretary of the Department of Interior and Local Government & Chairman,
National Police Commission (NAPOLCOM); HON. ALEXIS CANONIZADO, Commissioner, NAPOLCOM, Manila;
Chairman LEODEGARIO ALFARO, Regional Appellate Board VIII; Regional Director EDMUNDO LAVILLA
LARROZA, Philippine National Police (PNP) Regional Command VIII; and MARIO VALDEZ, respondents.
DAVIDE, JR., J.:p
This is a special civil action for certiorari under Rule 65 of the Rules of Court 1 to set aside the decision (in the form of a
letter) of 24 March 1995 2 of public respondent National Police Commission (NAPOLCOM), which denied due course for
lack of jurisdiction the appeal and the petition for review filed by petitioners SP03 Noel Cabada and SP03 Rodolfo G. de
Guzman, respectively. Challenged in the said appeal and petition for review were the decision of 15 August 1994 3 and
resolution of 25 October 1994 4 of the Regional Appellate Board of the Eighth Regional Command (RAB 8), which
affirmed their dismissal from the service.
The pleadings and annexes filed by the parties disclose the following factual and procedural backdrop of this case:
On 29 October 1993, a complaint against the petitioners for Grave Misconduct, Arbitrary Detention, and Dishonesty was
filed with the Office of the Commission on Human Rights in Tacloban City by private respondent Mario Valdez. 5 The
complaint was referred to the Philippine National Police Eighth Regional Command (PNP-RECOM 8) which, after
conducting its own investigation, filed an administrative charge of Grave Misconduct against the petitioners and instituted
summary dismissal proceedings.
On 7 April 1994, the Regional Director of PNP-RECOM 8 handed down a decision 6 finding the petitioners guilty of grave
misconduct and ordering their dismissal from the police service. Pursuant to this decision, Special Order No. 174, dated
23 April 1994, 7 was issued ordering, among other things, the dismissal of the petitioners from the service.
The petitioners claimed that they were not formally furnished with a copy of the decision and that they were able to secure
a copy thereof "thru their own effort and initiative" only on 13 June 1994. 8 However, they received a copy of Special Order
No. 174 on 26 April 1994.
Although they insist that the basis of the appeal before RAB 8 was Special Order No. 174, 9 petitioner Cabada stated
under oath in his
Appeal10 filed with the Department of Interior and Local Government (DILG) that he in fact seasonably filed a motion for
reconsideration of the decision of the Regional Director of PNP-RECOM 8, who, however, failed or refused to act on the
said motion, and that he asked that the said motion be treated as an appeal to the RAB.
In its decision of 15 August 1994, 11 the RAB 8 affirmed the decision of the Regional Director. In its resolution of 25
October 1994, 12 it denied the petitioners' motion for reconsideration of its decision. The petitioners received a copy of this
resolution on 26 January 1995.
Petitioners Cabada and De Guzman then filed with the Honorable Secretary of the DILG and Chairman of the
NAPOLCOM their "Appeal" 13 dated 5 February 1995 and "Petition for Review" 14 dated 4 February 1995, respectively.
In its decision of 24 March 1995, the NAPOLCOM, through Commissioner Alexis Canonizado, denied due course to the
petitioners' appeal and petition for review for lack of jurisdiction "it appearing . . . that both the Decision and the Resolution
of the Regional Appellate Board had long become final and executory and there being no showing that the RAB failed to
decide respondents' appeal within the reglementary period of sixty (60) days." 15 In support thereof, the NAPOLCOM cited
Section 23, Rule IV of NAPOLCOM Memorandum Circular No. 91-002 and Section 5, Rule III of NAPOLCOM
Memorandum Circular No. 91-006, which provide as follows:
Sec. 23. Effect of Failure to Decide Appeal. — Failure of the Regional Appellate Board to decide the
appeal within the reglementary period shall render the decision final and executory without prejudice,
however, to the filing of an appeal by either party with the Secretary of the Department of the Interior and
Local Government.
xxx xxx xxx
Sec. 5. Finality of Decision/Resolution. — The decision of the Regional Appellate Board on an appealed
case shall become final and executory after ten (10) days from receipt of a copy thereof by the appellant,
if no Motion for Reconsideration is filed within said period.
A motion for Reconsideration may be filed by either party from a Decision rendered by the Regional
Appellate Board on an appealed case, provided that the same is filed within ten (10) days from receipt of
a copy of the decision in question. However, only one (1) Motion for Reconsideration may be allowed.
Hence, the instant petition.
The Office of the Solicitor General seeks to dismiss this petition on the ground of prematurity because the petitioners
failed to exhaust administrative remedies; they should have instead appealed to the Civil Service Commission (CSC)
pursuant to Section 47, Chapter 6, Subtitle A, Title I, Book V of the Administrative Code of 1987 (E.O. No. 292), which
vests upon the CSC appellate jurisdiction over disciplinary cases of government personnel where the penalty imposed
is, inter alia, dismissal from office. The said provision reads:
Sec. 47. Disciplinary Jurisdiction. — (1) The Commission shall decide upon appeal all administrative
disciplinary cases involving the imposition of a penalty of suspension for more than thirty days, or fine in
an amount exceeding thirty days salary, demotion in rank or salary or transfer, or removal or dismissal
from office. . . .
(2) The Secretaries . . . shall have jurisdiction to investigate and decide matters involving disciplinary
action against officers and employees under their jurisdiction. . . . In case the decision rendered by a
bureau or office head is appealable to the Commission, the same may be initially appealed to the
Department and finally to the Commission and pending appeal, the same shall be executory except when
the penalty is removal, in which case, the same shall be executory only after confirmation by the
Secretary concerned.
The Office of the Solicitor General opines that this provision covers PNP personnel, like the petitioners; consequently,
they should have appealed to the CSC. It also advances the view that the instant petition should have been filed with the
proper forum, the Regional Trial Court.
The core issues that present themselves for our determination are whether.
(1) the NAPOLCOM committed grave abuse of discretion in denying due course, for lack of jurisdiction,
the petitioners' appeal from and petition for review of the decision and resolution of the RAB 8; and
(2) this special civil action was prematurely filed for failure of the petitioners to exhaust administrative
remedies.
I
Section 45 of the DILG Act of 1990 16 provides for the finality of disciplinary actions against members of the PNP as
follows:
Sec. 45. Finality of Disciplinary Action. — The disciplinary action imposed upon a member of the PNP
shall be final and executory: Provided, That a disciplinary action imposed by the regional director or by
the PLEB involving demotion or dismissal from the service may be appealed to the regional appellate
board within ten (10) days from receipt of the copy of the notice of decision: Provided, further, That the
disciplinary action imposed by the Chief of the PNP involving demotion or dismissal may be appealed to
the National Appellate Board within ten (10) days from receipt thereof: Provided, furthermore, That, the
regional or National Appellate Board, as the case may be, shall decide the appeal within sixty (60) days
from receipt of the notice of appeal: Provided, finally, That failure of the regional appellate board to act on
the appeal within said period shall render the decision final and executory without prejudice, however, to
the filing of an appeal by either party with the Secretary. (emphasis supplied)
The last proviso of this section is restated in Section 23, Rule IV of NAPOLCOM Memorandum Circular No. 91-002. And
Section 3, Rule III of NAPOLCOM Memorandum Circular No. 92-006 provides:
Sec. 3. Period Within Which to Decide Appealed Cases; Finality of RAB/NAB Decisions. — The
NAPOLCOM appellate board concerned shall decide the appealed cases within sixty (60) days from
receipt of the entire records of the case from the PNP summary dismissal authority. However, failure of
the NAPOLCOM Regional Appellate Board (RAB) to act on the appeal within said period renders the
decision final and executory without prejudice to the filing of an appeal by the respondent-appellant with
the Secretary of the Department of the Interior and Local Government. The decision rendered by the
NAPOLCOM National Appellate Board (NAB) disposing an appealed case shall be final and executory
unless a timely Motion for Reconsideration is filed within ten (10) days from receipt thereof, in which case,
it shall become final and executory upon receipt by the respondent-appellant of the resolution of the
aforesaid board denying, modifying or affirming the decision.
Section 45 of the DILG Act of 1990 specifically provides that if a RAB fails to decide an appeal within the reglementary
period of sixty days, the appealed decision becomes final and executory without, however, prejudice to the right of the
aggrieved party to appeal to the Secretary of the DILG. The said provision is, however, silent as regards the availability of
an appeal from a decision rendered by a RAB within the reglementary period.
This gap in Section 45 cannot be construed to prohibit appeals from decisions of the RAB rendered within the
reglementary period, for while the epigraph of the section is worded Finality of Disciplinary Action, there is nothing therein
that explicitly bars any further appeal. Complementary laws on discipline of government officials and employees must then
be inquired into considering that in conformity with the mandate of the Constitution that the PNP must be national in scope
and civilian in character, 17 it is now a part, as a bureau, of the reorganized DILG. 18 As such, it falls within the definition of
the civil service in Section 2 (1), Article IX-B of the Constitution. 19 For this reason, Section 91 of the DILG Act of 1990
provides:
Sec. 91. Application of Civil Service Laws. — The Civil Service Law and its implementing rules and
regulations shall apply to all personnel of the Department.
The Civil Service Law referred to in Section 91 of the DILG Act of 1990 is Subtitle A, Title I, Book V of the Administrative
Code of 1987 (E.O. No. 292). Section 47 of Chapter 6 thereof provides, inter alia, that in cases where the decision
rendered by a bureau or office is appealable to the Commission, the same may initially be appealed to the department
and finally to the Commission.
The rules and regulations implementing the Civil Service Law referred to in Section 91 of the DILG Act of 1990 is the
Omnibus Rules Implementing Book V of Executive Order No. 292 known as the Administrative Code of 1987 promulgated
by the CSC. Sections 31 and 32, Rule XIV of the said Rules provide as follows:
Sec. 31. Except as otherwise provided by the Constitution or by law, the Commission shall have the final
authority to pass upon the removal, separation and suspension of all officers and employees in the civil
service and upon all matters relating to the conduct, discipline and efficiency of such officers and
employees.
Sec. 32. The Secretaries and heads of agencies and instrumentalities, provinces, cities and municipalities
shall have jurisdiction to investigate and decide matters involving disciplinary action against officers and
employees under their jurisdiction. Their decisions shall be final in case the penalty imposed is
suspension for not more than thirty (30) days or fine in an amount not exceeding thirty (30) days' salary.
In case the decision rendered by a bureau or office head is appealable to the Commission, the same may
be initially appealed to the department, then to the Merit Systems Protection Board, and finally to the
Commission and pending appeal, the same shall be executory except when the penalty is removal, in
which case the same shall be executory only after confirmation by the Secretary concerned.
Under Section 7 of E.O. No. 262, 20 the Secretary of the DILG has the power of supervision and control of his Department.
His powers and functions thereunder are recognized and affirmed in Section 10 of the DILG Act of
1990. 21
In view then of the aforementioned gap in Section 45 of the DILG Act of 1990, the provisions of the Civil Service Law and
the rules and regulations implementing it must be taken into account in light of the maxim interpretare concordare legibus
est optimus interpretandi or every statute must be so construed and harmonized with other statutes as to form a uniform
system of jurisprudence. 22
As thus construed and harmonized, it follows that if a RAB fails to decide an appealed case within sixty days from receipt
of the notice of appeal, the appealed decision is deemed final and executory, and the aggrieved party may forthwith
appeal therefrom to the Secretary of the DILG. Likewise, if the RAB has decided the appeal within the sixty-day period, its
decision may still be appealed to the Secretary of the DILG.
In the instant case, Cabada's appeal was addressed to "the Honorable Secretary of the Department of the Interior and
Local Government . . . as Chairman and Presiding Officer of the National Police Commission," 23 while De Guzman's
petition for review was addressed to "the Honorable Secretary, Department of the Interior and Local Government and
Chairman, National Police Commission, Makati City, Metro Manila." 24
We consider the appeal and the petition for review as appeals to the Secretary of the DILG under Section 45 of the DILG
Act of 1990.
Only the Secretary of the DILG can act thereon, one way or the other. The NAPOLCOM did not have authority over the
appeal and the petition for review, and just because both mentioned the Secretary of the DILG as Chairman or Presiding
Officer of the NAPOLCOM did not bring them within the jurisdiction of the NAPOLCOM. The latter does not have such
jurisdiction because Section 14 of the DILG Act of 1990 pertinently provides as follows:
Sec. 14. Powers and Functions of the Commission. — . . .
xxx xxx xxx
(i) Affirm, reverse or modify, through the National Appellate Board, personnel disciplinary action involving
demotion or dismissal from the service imposed upon members of the Philippine National Police by the
Chief of the Philippine National Police;
(k) Exercise appellate jurisdiction through the regional appellate boards over administrative cases against
policemen and over decisions on claims for police benefits. . . .
This section clearly shows that the NAPOLCOM exercise appellate jurisdiction only on the following cases and
THROUGH (a) the NAB in personnel disciplinary actions involving demotion or dismissal from the service
imposed by the Chief of the PNP, and (b) the RAB in administrative cases against policemen and over decisions
on claims for police benefits. It has no appellate jurisdiction over decisions rendered by the NAB and the RAB.
Consequently, the NAPOLCOM did not have the power or authority to issue, through Commissioner Alexis Canonizado,
the 24 March 1995 decision denying due course to the appeal and petition for review filed by petitioners Cabada and De
Guzman, respectively, for lack of jurisdiction because of Section 5, Rule III of NAPOLCOM Memorandum Circular No. 91-
006 and Section 23, Rule IV of NAPOLCOM Memorandum Circular No. 91-002. The reference to these rules suggest that
the NAPOLCOM believes it has jurisdiction over appeals from decisions of the RAB if the latter has not decided the
appeal within the reglementary period of sixty days. Such a suggestion is flawed because it would allow a ridiculous
situation where the NAPOLCOM vests upon itself an appellate jurisdiction from a decision rendered by it in the exercise of
its appellate jurisdiction through the RAB, per Section 14(k) of the DILG Act of 1990. Moreover, Commissioner
Canonizado cannot, singly, act for the NAPOLCOM because it is a collegial body composed of a Chairman and four
Commissioners, pursuant to Section 13 of the DILG Act of 1990.
In light of the foregoing, the petitioners could properly invoke our original jurisdiction to issue the extraordinary writ
of certiorari under Rule 65 of the Rules of Court to annul and set aside the NAPOLCOM's decision of 24 March 1995. It
being a patent nullity, the filing of a motion for its reconsideration before the institution of this special civil action may be
dispensed with. 25
II
The plea of the Office of the Solicitor General that the instant action is premature for non-exhaustion of administrative
remedies is thus untenable. We would have sustained it if the Secretary of the DILG was the one who denied due course
to or dismissed the appeal of petitioner Cabada and the petition for review of petitioner De Guzman. By then, pursuant to
Section 91 of the DILG Act of 1990; Section 47, Chapter 6, Subtitle A, Title I, Book V of the Administrative Code of 1987;
and Sections 31 and 32 of the Omnibus Rules Implementing Book V of Executive Order No. 292, the appeal would have
to be filed with the CSC. And futile would be the petitioners claim in their Reply to the Comment of the OSG that their case
falls within the exceptions to the rule on exhaustion of administrative remedies.
In view of all the foregoing, a discussion on the other issues raised by the petitioners relating to the merits of the case and
on the issue of due process is unnecessary.
WHEREFORE, premises considered, the instant petition is GRANTED. The decision (in the form of a fetter) of the
National Police Commission of 24 March 1995 is ANNULLED and SET ASIDE. The Secretary of the Department of
Interior and Local Government is DIRECTED to RESOLVE with reasonable dispatch the appeal and petition for review of
petitioners SP03 NOEL CABADA and SP03 RODOLFO G. DE Guzman, respectively, from the decision of 15 August
1994 and resolution of 25 October 1994 of the Regional Appellate Boar, Eight Regional Command, if the same were filed
on time.
No pronouncement as to costs.
SO ORDERED.
epublic of the Philippines
SUPREME COURT
Baguio City
EN BANC
G.R. No. 204819 April 8, 2014
JAMES M. IMBONG and LOVELY-ANN C. IMBONG, for themselves and in behalf of their minor children, LUCIA
CARLOS IMBONG and BERNADETTE CARLOS IMBONG and MAGNIFICAT CHILD DEVELOPMENT CENTER,
INC., Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO B. ABAD, Secretary, Department of
Budget and Management, HON. ENRIQUE T. ONA, Secretary, Department of Health, HON. ARMIN A. LUISTRO,
Secretary, Department of Education, Culture and Sports and HON. MANUELA. ROXAS II, Secretary, Department
of Interior and Local Government, Respondents.
x---------------------------------x
G.R. No. 204934
ALLIANCE FOR THE FAMILY FOUNDATION PHILIPPINES, INC. [ALFI], represented by its President, Maria
Concepcion S. Noche, Spouses Reynaldo S. Luistro & Rosie B . Luistro, Jose S. Sandejas & Elenita S.A.
Sandejas, Arturo M. Gorrez & Marietta C. Gorrez, Salvador S. Mante, Jr. & Hazeleen L. Mante, Rolando M. Bautista
& Maria Felisa S. Bautista, Desiderio Racho & Traquilina Racho, F emand Antonio A. Tansingco & Carol Anne C.
Tansingco for themselves and on behalf of their minor children, Therese Antonette C. Tansingco, Lorenzo Jose
C. Tansingco, Miguel F emando C. Tangsingco, Carlo Josemaria C. Tansingco & Juan Paolo C. Tansingco,
Spouses Mariano V. Araneta & Eileen Z. Araneta for themselves and on behalf of their minor children, Ramon
Carlos Z. Araneta & Maya Angelica Z. Araneta, Spouses Renato C. Castor & Mildred C. Castor for themselves and
on behalf of their minor children, Renz Jeffrey C. Castor, Joseph Ramil C. Castor, John Paul C. Castor & Raphael
C. Castor, Spouses Alexander R. Racho & Zara Z. Racho for themselves and on behalf of their minor children
Margarita Racho, Mikaela Racho, Martin Racho, Mari Racho & Manolo Racho, Spouses Alfred R. Racho &
Francine V. Racho for themselves and on behalf of their minor children Michael Racho, Mariana Racho, Rafael
Racho, Maxi Racho, Chessie Racho & Laura Racho, Spouses David R. Racho & Armilyn A. Racho for themselves
and on behalf of their minor child Gabriel Racho, Mindy M. Juatas and on behalf of her minor children Elijah
Gerald Juatas and Elian Gabriel Juatas, Salvacion M. Monteiro, Emily R. Laws, Joseph R . Laws & Katrina R.
Laws, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. ENRIQUE T. ONA, Secretary, Department of Health,
HON. ARMIN A. LUISTRO, Secretary, Department of Education, Culture and Sports, HON. CORAZON SOLIMAN,
Secretary, Department of Social Welfare and Development, HON. MANUELA. ROXAS II, Secretary, Department of
Interior and Local Government, HON. FLORENCIO B. ABAD, Secretary, Department of Budget and Management,
HON. ARSENIO M. BALISACAN, Socio-Economic Planning Secretary and NEDA Director-General, THE
PHILIPPINE COMMISSION ON WOMEN, represented by its Chairperson, Remedios lgnacio-Rikken, THE
PHILIPPINE HEALTH INSURANCE CORPORATION, represented by its President Eduardo Banzon, THE LEAGUE
OF PROVINCES OF THE PHILIPPINES, represented by its President Alfonso Umali, THE LEAGUE OF CITIES OF
THE PHILIPPINES, represented by its President Oscar Rodriguez, and THE LEAGUE OF MUNICIPALITIES OF THE
PHILIPPINES, represented by its President Donato Marcos, Respondents.
x---------------------------------x
G.R. No. 204957
TASK FORCE FOR FAMILY AND LIFE VISAYAS, INC. and VALERIANO S. AVILA, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary; HON. FLORENCIO B. ABAD, Secretary, Department of
Budget and Management; HON. ENRIQUE T. ONA, Secretary, Department of Education; and HON. MANUELA.
ROXAS II, Secretary, Department of Interior and Local Government, Respondents.
x---------------------------------x
G.R. No. 204988
SERVE LIFE CAGAYAN DE ORO CITY, INC., represented by Dr. Nestor B. Lumicao, M.D., as President and in his
personal capacity, ROSEVALE FOUNDATION INC., represented by Dr. Rodrigo M. Alenton, M.D., as member of
the school board and in his personal capacity, ROSEMARIE R. ALENTON, IMELDA G. IBARRA, CPA, LOVENIAP.
NACES, Phd., ANTHONY G. NAGAC, EARL ANTHONY C. GAMBE and MARLON I. YAP, Petitioners,
vs.
OFFICE OF THE PRESIDENT, SENATE OF THE PHILIPPINES, HOUSE OF REPRESENTATIVES, HON. PAQUITO N.
OCHOA, JR., Executive Secretary, HON. FLORENCIO B. ABAD, Secretary, Department of Budget and
Management; HON. ENRIQUE T. ONA, Secretary, Department of Health; HON. ARMIN A. LUISTRO, Secretary,
Department of Education and HON. MANUELA. ROXAS II, Secretary, Department of Interior and Local
Government, Respondents.
x---------------------------------x
G.R. No. 205003
EXPEDITO A. BUGARIN, JR., Petitioner,

vs.
OFFICE OF THE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, HON. SENATE PRESIDENT, HON.
SPEAKER OF THE HOUSE OF REPRESENTATIVES and HON. SOLICITOR GENERAL, Respondents.
x---------------------------------x
G.R. No. 205043
EDUARDO B. OLAGUER and THE CATHOLIC XYBRSPACE APOSTOLATE OF THE PHILIPPINES, Petitioners,
vs.
DOH SECRETARY ENRIQUE T. ONA, FDA DIRECTOR SUZETTE H. LAZO, DBM SECRETARY FLORENCIO B.
ABAD, DILG SECRETARY MANUELA. ROXAS II, DECS SECRETARY ARMIN A. LUISTRO, Respondents.
x---------------------------------x
G.R. No. 205138
PHILIPPINE ALLIANCE OF XSEMINARIANS, INC. (PAX), herein represented by its National President, Atty.
Ricardo M . Ribo, and in his own behalf, Atty. Lino E.A. Dumas, Romeo B. Almonte, Osmundo C. Orlanes, Arsenio
Z. Menor, Samuel J. Yap, Jaime F. Mateo, Rolly Siguan, Dante E. Magdangal, Michael Eugenio O. Plana,
Bienvenido C. Miguel, Jr., Landrito M. Diokno and Baldomero Falcone, Petitioners,
vs.
Secretary, Department of Education, HON. MANUELA. ROXAS II, Secretary, Department of Interior and Local
Government, HON. CORAZON J. SOLIMAN, Secretary, Department of Social Welfare and Development, HON.
ARSENIO BALISACAN, Director-General, National Economic and Development Authority, HON. SUZETTE H.
LAZO, Director-General, Food and Drugs Administration, THE BOARD OF DIRECTORS, Philippine Health
Insurance Corporation, and THE BOARD OF COMMISSIONERS, Philippine Commission on Women, Respondents.
x---------------------------------x
G.R. No. 205478
REYNALDO J. ECHAVEZ, M.D., JACQUELINE H. KING, M.D., CYNTHIA T. DOMINGO, M.D., AND JOSEPHINE
MILLADO-LUMITAO, M.D., collectively known as Doctors For Life, and ANTHONY PEREZ, MICHAEL ANTHONY G.
MAPA, CARLOS ANTONIO PALAD, WILFREDO JOSE, CLAIRE NAVARRO, ANNA COSIO, and GABRIEL DY
LIACCO collectively known as Filipinos For Life, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary; HON. FLORENCIO B. ABAD, Secretary of the Department of
Budget and Management; HON. ENRIQUE T. ONA, Secretary of the Department of Health; HON. ARMIN A.
LUISTRO, Secretary of the Department of Education; and HON. MANUELA. ROXAS II, Secretary of the
Department of Interior and Local Government, Respondents.
x---------------------------------x
G.R. No. 205491
SPOUSES FRANCISCO S. TATAD AND MARIA FENNY C. TATAD & ALA F. PAGUIA, for themselves, their
Posterity, and the rest of Filipino posterity, Petitioners,
vs.
OFFICE OF THE PRESIDENT of the Republic of the Philippines, Respondent.
x---------------------------------x
G.R. No. 205720
PRO-LIFE PHILIPPINES FOUNDATION, Inc., represented by Loma Melegrito, as Executive Director, and in her
personal capacity, JOSELYN B. BASILIO, ROBERT Z. CORTES, ARIEL A. CRISOSTOMO, JEREMY I. GATDULA,
CRISTINA A. MONTES, RAUL ANTONIO A. NIDOY, WINSTON CONRAD B. PADOJINOG, RUFINO L. POLICARPIO
III, Petitioners,
vs.
OFFICE OF THE PRESIDENT, SENATE OF THE PHILIPPINES, HOUSE OF REPRESENTATIVES, HON. PAQUITO N.
OCHOA, JR., Executive Secretary, HON. FLORENCIO B. ABAD, Secretary, Department of Budget and
Management, HON. ENRIQUE T. ONA, Secretary, Department of Health, HON. ARMIN A. LUISTRO, Secretary,
Department of Education and HON. MANUEL A. ROXAS II, Secretary, Department of Interior and Local
Government, Respondents.
x---------------------------------x
G.R. No. 206355
MILLENNIUM SAINT FOUNDATION, INC., ATTY. RAMON PEDROSA, ATTY. CITA BORROMEO-GARCIA,
STELLAACEDERA, ATTY. BERTENI CATALUNA CAUSING, Petitioners,
vs.
OFFICE OF THE PRESIDENT, OFFICE OF THE EXECUTIVE SECRETARY, DEPARTMENT OF HEALTH,
DEPARTMENT OF EDUCATION, Respondents.
x---------------------------------x
G.R. No. 207111
JOHN WALTER B. JUAT, MARY M. IMBONG, ANTHONY VICTORIO B. LUMICAO, JOSEPH MARTIN Q. VERDEJO,
ANTONIA EMMA R. ROXAS and LOTA LAT-GUERRERO, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO ABAD, Secretary, Department of Budget
and Management, HON. ENRIQUE T. ONA, Secretary, Department of Health, HON. ARMIN A. LUISTRO, Secretary,
Department of Education, Culture and Sports and HON. MANUEL A. ROXAS II, Secretary, Department of Interior
and Local Government, Respondents.
x---------------------------------x
G.R. No. 207172
COUPLES FOR CHRIST FOUNDATION, INC., SPOUSES JUAN CARLOS ARTADI SARMIENTO AND FRANCESCA
ISABELLE BESINGA-SARMIENTO, AND SPOUSES LUIS FRANCIS A. RODRIGO, JR. and DEBORAH MARIE
VERONICA N. RODRIGO, Petitioners,
vs.
Secretary, Department of Education, Culture and Sports and HON. MANUELA. ROXAS II, Secretary, Department
of Interior and Local Government, Respondents.
x---------------------------------x
G.R. No. 207563
ALMARIM CENTI TILLAH and ABDULHUSSEIN M. KASHIM, Petitioners,

vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. ENRIQUE T. ONA, Secretary of the Department of
Health, and HON. ARMIN A. LUISTRO,Secretary of the Department of Budget and Management, Respondents.
DECISION
MENDOZA, J.:
Freedom of religion was accorded preferred status by the framers of our fundamental law. And this Court has consistently
affirmed this preferred status, well aware that it is "designed to protect the broadest possible liberty of conscience, to allow
each man to believe as his conscience directs, to profess his beliefs , and to live as he believes he ought to live,
consistent with the liberty of others and with the common good."1
To this day, poverty is still a major stumbling block to the nation's emergence as a developed country, leaving our people
beleaguered in a state of hunger, illiteracy and unemployment. While governmental policies have been geared towards
the revitalization of the economy, the bludgeoning dearth in social services remains to be a problem that concerns not
only the poor, but every member of society. The government continues to tread on a trying path to the realization of its
very purpose, that is, the general welfare of the Filipino people and the development of the country as a whole. The
legislative branch, as the main facet of a representative government, endeavors to enact laws and policies that aim to
remedy looming societal woes, while the executive is closed set to fully implement these measures and bring concrete
and substantial solutions within the reach of Juan dela Cruz. Seemingly distant is the judicial branch, oftentimes regarded
as an inert governmental body that merely casts its watchful eyes on clashing stakeholders until it is called upon to
adjudicate. Passive, yet reflexive when called into action, the Judiciary then willingly embarks on its solemn duty to
interpret legislation vis-a-vis the most vital and enduring principle that holds Philippine society together - the supremacy of
the Philippine Constitution.
Nothing has polarized the nation more in recent years than the issues of population growth control, abortion and
contraception. As in every democratic society, diametrically opposed views on the subjects and their perceived
consequences freely circulate in various media. From television debates 2 to sticker campaigns,3 from rallies by socio-
political activists to mass gatherings organized by members of the clergy4 - the clash between the seemingly antithetical
ideologies of the religious conservatives and progressive liberals has caused a deep division in every level of the society.
Despite calls to withhold support thereto, however, Republic Act (R.A.) No. 10354, otherwise known as the Responsible
Parenthood and Reproductive Health Act of 2012 (RH Law), was enacted by Congress on December 21, 2012.
Shortly after the President placed his imprimatur on the said law, challengers from various sectors of society came
knocking on the doors of the Court, beckoning it to wield the sword that strikes down constitutional disobedience. Aware
of the profound and lasting impact that its decision may produce, the Court now faces the iuris controversy, as presented
in fourteen (14) petitions and two (2) petitions- in-intervention, to wit:
(1) Petition for Certiorari and Prohibition,5 filed by spouses Attys. James M. Imbong and Lovely Ann C. Imbong, in
their personal capacities as citizens, lawyers and taxpayers and on behalf of their minor children; and the
Magnificat Child Leaming Center, Inc., a domestic, privately-owned educational institution (Jmbong);
(2) Petition for Prohibition,6 filed by the Alliance for the Family Foundation Philippines, Inc., through its president,
Atty. Maria Concepcion S. Noche7 and several others8 in their personal capacities as citizens and on behalf of the
generations unborn (ALFI);
(3) Petition for Certiorari,9 filed by the Task Force for Family and Life Visayas, Inc., and Valeriano S. Avila, in their
capacities as citizens and taxpayers (Task Force Family);
(4) Petition for Certiorari and Prohibition,10 filed by Serve Life Cagayan De Oro City, Inc.,11 Rosevale Foundation,
Inc.,12 a domestic, privately-owned educational institution, and several others,13 in their capacities as citizens
(Serve Life);
(5) Petition,14 filed by Expedito A. Bugarin, Jr. in his capacity as a citizen (Bugarin);
(6) Petition for Certiorari and Prohibition,15 filed by Eduardo Olaguer and the Catholic Xybrspace Apostolate of the
Philippines,16 in their capacities as a citizens and taxpayers (Olaguer);
(7) Petition for Certiorari and Prohibition,17 filed by the Philippine Alliance of Xseminarians Inc.,18 and several
others19 in their capacities as citizens and taxpayers (PAX);
(8) Petition,20 filed by Reynaldo J. Echavez, M.D. and several others,21 in their capacities as citizens and
taxpayers (Echavez);
(9) Petition for Certiorari and Prohibition,22 filed by spouses Francisco and Maria Fenny C. Tatad and Atty. Alan F.
Paguia, in their capacities as citizens, taxpayers and on behalf of those yet unborn. Atty. Alan F. Paguia is also
proceeding in his capacity as a member of the Bar (Tatad);
(10) Petition for Certiorari and Prohibition,23 filed by Pro-Life Philippines Foundation Inc.24 and several others,25 in
their capacities as citizens and taxpayers and on behalf of its associates who are members of the Bar (Pro-Life);
(11) Petition for Prohibition,26 filed by Millennium Saint Foundation, Inc.,27 Attys. Ramon Pedrosa, Cita Borromeo-
Garcia, Stella Acedera, and Berteni Catalufia Causing, in their capacities as citizens, taxpayers and members of
the Bar (MSF);
(12) Petition for Certiorari and Prohibition,28 filed by John Walter B. Juat and several others,29 in their capacities
as citizens (Juat) ;
(13) Petition for Certiorari and Prohibition,30 filed by Couples for Christ Foundation, Inc. and several others, 31 in
their capacities as citizens (CFC);
(14) Petition for Prohibition32 filed by Almarim Centi Tillah and Abdulhussein M. Kashim in their capacities as
citizens and taxpayers (Tillah); and
(15) Petition-In-Intervention,33 filed by Atty. Samson S. Alcantara in his capacity as a citizen and a taxpayer
(Alcantara); and
(16) Petition-In-Intervention,34 filed by Buhay Hayaang Yumabong (B UHAY) , an accredited political party.
A perusal of the foregoing petitions shows that the petitioners are assailing the constitutionality of RH Law on the following
GROUNDS:
• The RH Law violates the right to life of the unborn. According to the petitioners, notwithstanding its declared
policy against abortion, the implementation of the RH Law would authorize the purchase of hormonal
contraceptives, intra-uterine devices and injectables which are abortives, in violation of Section 12, Article II of the
Constitution which guarantees protection of both the life of the mother and the life of the unborn from
conception.35
• The RH Law violates the right to health and the right to protection against hazardous products. The petitioners
posit that the RH Law provides universal access to contraceptives which are hazardous to one's health, as it
causes cancer and other health problems.36
• The RH Law violates the right to religious freedom. The petitioners contend that the RH Law violates the
constitutional guarantee respecting religion as it authorizes the use of public funds for the procurement of
contraceptives. For the petitioners, the use of public funds for purposes that are believed to be contrary to their
beliefs is included in the constitutional mandate ensuring religious freedom. 37
It is also contended that the RH Law threatens conscientious objectors of criminal prosecution, imprisonment and other
forms of punishment, as it compels medical practitioners 1] to refer patients who seek advice on reproductive health
programs to other doctors; and 2] to provide full and correct information on reproductive health programs and service,
although it is against their religious beliefs and convictions. 38
In this connection, Section 5 .23 of the Implementing Rules and Regulations of the RH Law (RH-IRR),39 provides that
skilled health professionals who are public officers such as, but not limited to, Provincial, City, or Municipal Health
Officers, medical officers, medical specialists, rural health physicians, hospital staff nurses, public health nurses, or rural
health midwives, who are specifically charged with the duty to implement these Rules, cannot be considered as
conscientious objectors.40
It is also argued that the RH Law providing for the formulation of mandatory sex education in schools should not be
allowed as it is an affront to their religious beliefs.41
While the petit10ners recognize that the guarantee of religious freedom is not absolute, they argue that the RH Law fails
to satisfy the "clear and present danger test" and the "compelling state interest test" to justify the regulation of the right to
free exercise of religion and the right to free speech.42
• The RH Law violates the constitutional provision on involuntary servitude. According to the petitioners, the RH
Law subjects medical practitioners to involuntary servitude because, to be accredited under the PhilHealth
program, they are compelled to provide forty-eight (48) hours of pro bona services for indigent women, under
threat of criminal prosecution, imprisonment and other forms of punishment. 43
The petitioners explain that since a majority of patients are covered by PhilHealth, a medical practitioner would effectively
be forced to render reproductive health services since the lack of PhilHealth accreditation would mean that the majority of
the public would no longer be able to avail of the practitioners services. 44
• The RH Law violates the right to equal protection of the law. It is claimed that the RH Law discriminates against
the poor as it makes them the primary target of the government program that promotes contraceptive use. The
petitioners argue that, rather than promoting reproductive health among the poor, the RH Law seeks to introduce
contraceptives that would effectively reduce the number of the poor. 45
• The RH Law is "void-for-vagueness" in violation of the due process clause of the Constitution. In imposing the
penalty of imprisonment and/or fine for "any violation," it is vague because it does not define the type of conduct
to be treated as "violation" of the RH Law.46
In this connection, it is claimed that "Section 7 of the RH Law violates the right to due process by removing from them (the
people) the right to manage their own affairs and to decide what kind of health facility they shall be and what kind of
services they shall offer."47 It ignores the management prerogative inherent in corporations for employers to conduct their
affairs in accordance with their own discretion and judgment.
• The RH Law violates the right to free speech. To compel a person to explain a full range of family planning
methods is plainly to curtail his right to expound only his own preferred way of family planning. The petitioners
note that although exemption is granted to institutions owned and operated by religious groups, they are still
forced to refer their patients to another healthcare facility willing to perform the service or procedure.48
• The RH Law intrudes into the zone of privacy of one's family protected by the Constitution. It is contended that
the RH Law providing for mandatory reproductive health education intrudes upon their constitutional right to raise
their children in accordance with their beliefs.49
It is claimed that, by giving absolute authority to the person who will undergo reproductive health procedure, the RH Law
forsakes any real dialogue between the spouses and impedes the right of spouses to mutually decide on matters
pertaining to the overall well-being of their family. In the same breath, it is also claimed that the parents of a child who has
suffered a miscarriage are deprived of parental authority to determine whether their child should use contraceptives. 50
• The RH Law violates the constitutional principle of non-delegation of legislative authority. The petitioners
question the delegation by Congress to the FDA of the power to determine whether a product is non-abortifacient
and to be included in the Emergency Drugs List (EDL).51
• The RH Law violates the one subject/one bill rule provision under Section 26( 1 ), Article VI of the Constitution.52
• The RH Law violates Natural Law.53
• The RH Law violates the principle of Autonomy of Local Government Units (LGUs) and the Autonomous Region
of Muslim Mindanao {ARMM). It is contended that the RH Law, providing for reproductive health measures at the
local government level and the ARMM, infringes upon the powers devolved to LGUs and the ARMM under the
Local Government Code and R.A . No. 9054.54
Various parties also sought and were granted leave to file their respective comments-in-intervention in defense of the
constitutionality of the RH Law. Aside from the Office of the Solicitor General (OSG) which commented on the petitions in
behalf of the respondents,55 Congressman Edcel C. Lagman,56 former officials of the Department of Health Dr. Esperanza
I. Cabral, Jamie Galvez-Tan, and Dr. Alberto G. Romualdez,57 the Filipino Catholic Voices for Reproductive Health
(C4RH),58 Ana Theresa "Risa" Hontiveros,59 and Atty. Joan De Venecia60 also filed their respective Comments-in-
Intervention in conjunction with several others. On June 4, 2013, Senator Pia Juliana S. Cayetano was also granted leave
to intervene.61
The respondents, aside from traversing the substantive arguments of the petitioners, pray for the dismissal of the petitions
for the principal reasons that 1] there is no actual case or controversy and, therefore, the issues are not yet ripe for judicial
determination.; 2] some petitioners lack standing to question the RH Law; and 3] the petitions are essentially petitions for
declaratory relief over which the Court has no original jurisdiction.
Meanwhile, on March 15, 2013, the RH-IRR for the enforcement of the assailed legislation took effect.
On March 19, 2013, after considering the issues and arguments raised, the Court issued the Status Quo Ante Order
(SQAO), enjoining the effects and implementation of the assailed legislation for a period of one hundred and twenty (120)
days, or until July 17, 2013.62
On May 30, 2013, the Court held a preliminary conference with the counsels of the parties to determine and/or identify the
pertinent issues raised by the parties and the sequence by which these issues were to be discussed in the oral
arguments. On July 9 and 23, 2013, and on August 6, 13, and 27, 2013, the cases were heard on oral argument. On July
16, 2013, the SQAO was ordered extended until further orders of the Court. 63
Thereafter, the Court directed the parties to submit their respective memoranda within sixty (60) days and, at the same
time posed several questions for their clarification on some contentions of the parties. 64
The Status Quo Ante
(Population, Contraceptive and Reproductive Health Laws
Prior to the RH Law
Long before the incipience of the RH Law, the country has allowed the sale, dispensation and distribution of contraceptive
drugs and devices. As far back as June 18, 1966, the country enacted R.A. No. 4729 entitled "An Act to Regu,late the
Sale, Dispensation, and/or Distribution of Contraceptive Drugs and Devices." Although contraceptive drugs and devices
were allowed, they could not be sold, dispensed or distributed "unless such sale, dispensation and distribution is by a duly
licensed drug store or pharmaceutical company and with the prescription of a qualified medical practitioner." 65
In addition, R.A. No. 5921,66 approved on June 21, 1969, contained provisions relative to "dispensing of abortifacients or
anti-conceptional substances and devices." Under Section 37 thereof, it was provided that "no drug or chemical product or
device capable of provoking abortion or preventing conception as classified by the Food and Drug Administration shall be
delivered or sold to any person without a proper prescription by a duly licensed physician."
On December 11, 1967, the Philippines, adhering to the UN Declaration on Population, which recognized that the
population problem should be considered as the principal element for long-term economic development, enacted
measures that promoted male vasectomy and tubal ligation to mitigate population growth. 67 Among these measures
included R.A. No. 6365, approved on August 16, 1971, entitled "An Act Establishing a National Policy on Population,
Creating the Commission on Population and for Other Purposes. " The law envisioned that "family planning will be made
part of a broad educational program; safe and effective means will be provided to couples desiring to space or limit family
size; mortality and morbidity rates will be further reduced."
To further strengthen R.A. No. 6365, then President Ferdinand E . Marcos issued Presidential Decree. (P.D.) No.
79,68 dated December 8, 1972, which, among others, made "family planning a part of a broad educational program,"
provided "family planning services as a part of over-all health care," and made "available all acceptable methods of
contraception, except abortion, to all Filipino citizens desirous of spacing, limiting or preventing pregnancies."
Through the years, however, the use of contraceptives and family planning methods evolved from being a component of
demographic management, to one centered on the promotion of public health, particularly, reproductive health. 69 Under
that policy, the country gave priority to one's right to freely choose the method of family planning to be adopted, in
conformity with its adherence to the commitments made in the International Conference on Population and
Development.70 Thus, on August 14, 2009, the country enacted R.A. No. 9710 or "The Magna Carta for Women, " which,
among others, mandated the State to provide for comprehensive health services and programs for women, including
family planning and sex education.71
The RH Law
Despite the foregoing legislative measures, the population of the country kept on galloping at an uncontrollable pace.
From a paltry number of just over 27 million Filipinos in 1960, the population of the country reached over 76 million in the
year 2000 and over 92 million in 2010.72 The executive and the legislative, thus, felt that the measures were still not
adequate. To rein in the problem, the RH Law was enacted to provide Filipinos, especially the poor and the marginalized,
access and information to the full range of modem family planning methods, and to ensure that its objective to provide for
the peoples' right to reproductive health be achieved. To make it more effective, the RH Law made it mandatory for health
providers to provide information on the full range of modem family planning methods, supplies and services, and for
schools to provide reproductive health education. To put teeth to it, the RH Law criminalizes certain acts of refusals to
carry out its mandates.
Stated differently, the RH Law is an enhancement measure to fortify and make effective the current laws on contraception,
women's health and population control.
Prayer of the Petitioners - Maintain the Status Quo
The petitioners are one in praying that the entire RH Law be declared unconstitutional. Petitioner ALFI, in particular,
argues that the government sponsored contraception program, the very essence of the RH Law, violates the right to
health of women and the sanctity of life, which the State is mandated to protect and promote. Thus, ALFI prays that "the
status quo ante - the situation prior to the passage of the RH Law - must be maintained."73 It explains:
x x x. The instant Petition does not question contraception and contraceptives per se. As provided under Republic Act No.
5921 and Republic Act No. 4729, the sale and distribution of contraceptives are prohibited unless dispensed by a
prescription duly licensed by a physician. What the Petitioners find deplorable and repugnant under the RH Law is the role
that the State and its agencies - the entire bureaucracy, from the cabinet secretaries down to the barangay officials in the
remotest areas of the country - is made to play in the implementation of the contraception program to the fullest extent
possible using taxpayers' money. The State then will be the funder and provider of all forms of family planning methods
and the implementer of the program by ensuring the widespread dissemination of, and universal access to, a full range of
family planning methods, devices and supplies.74
ISSUES
After a scrutiny of the various arguments and contentions of the parties, the Court has synthesized and refined them to
the following principal issues:
I. PROCEDURAL: Whether the Court may exercise its power of judicial review over the controversy.
1] Power of Judicial Review
2] Actual Case or Controversy
3] Facial Challenge
4] Locus Standi
5] Declaratory Relief
6] One Subject/One Title Rule
II. SUBSTANTIVE: Whether the RH law is unconstitutional:
1] Right to Life
2] Right to Health
3] Freedom of Religion and the Right to Free Speech
4] The Family
5] Freedom of Expression and Academic Freedom
6] Due Process
7] Equal Protection
8] Involuntary Servitude
9] Delegation of Authority to the FDA
10] Autonomy of Local Govemments/ARMM
DISCUSSION
Before delving into the constitutionality of the RH Law and its implementing rules, it behooves the Court to resolve some
procedural impediments.
I. PROCEDURAL ISSUE: Whether the Court can exercise its power of judicial review over the controversy.
The Power of Judicial Review
In its attempt to persuade the Court to stay its judicial hand, the OSG asserts that it should submit to the legislative and
political wisdom of Congress and respect the compromises made in the crafting of the RH Law, it being "a product of a
majoritarian democratic process"75 and "characterized by an inordinate amount of transparency."76 The OSG posits that
the authority of the Court to review social legislation like the RH Law by certiorari is "weak," since the Constitution vests
the discretion to implement the constitutional policies and positive norms with the political departments, in particular, with
Congress.77 It further asserts that in view of the Court's ruling in Southern Hemisphere v. Anti-Terrorism Council,78 the
remedies of certiorari and prohibition utilized by the petitioners are improper to assail the validity of the acts of the
legislature.79
Moreover, the OSG submits that as an "as applied challenge," it cannot prosper considering that the assailed law has yet
to be enforced and applied to the petitioners, and that the government has yet to distribute reproductive health devices
that are abortive. It claims that the RH Law cannot be challenged "on its face" as it is not a speech-regulating measure.80
In many cases involving the determination of the constitutionality of the actions of the Executive and the Legislature, it is
often sought that the Court temper its exercise of judicial power and accord due respect to the wisdom of its co-equal
branch on the basis of the principle of separation of powers. To be clear, the separation of powers is a fundamental
principle in our system of government, which obtains not through express provision but by actual division in our
Constitution. Each department of the government has exclusive cognizance of matters within its jurisdiction and is
supreme within its own sphere.81
Thus, the 1987 Constitution provides that: (a) the legislative power shall be vested in the Congress of the Philippines; 82 (b)
the executive power shall be vested in the President of the Philippines;83 and (c) the judicial power shall be vested in one
Supreme Court and in such lower courts as may be established by law.84 The Constitution has truly blocked out with deft
strokes and in bold lines, the allotment of powers among the three branches of government. 85
In its relationship with its co-equals, the Judiciary recognizes the doctrine of separation of powers which imposes upon the
courts proper restraint, born of the nature of their functions and of their respect for the other branches of government, in
striking down the acts of the Executive or the Legislature as unconstitutional. Verily, the policy is a harmonious blend of
courtesy and caution.86
It has also long been observed, however, that in times of social disquietude or political instability, the great landmarks of
the Constitution are apt to be forgotten or marred, if not entirely obliterated.87 In order to address this, the Constitution
impresses upon the Court to respect the acts performed by a co-equal branch done within its sphere of competence and
authority, but at the same time, allows it to cross the line of separation - but only at a very limited and specific point - to
determine whether the acts of the executive and the legislative branches are null because they were undertaken with
grave abuse of discretion.88 Thus, while the Court may not pass upon questions of wisdom, justice or expediency of the
RH Law, it may do so where an attendant unconstitutionality or grave abuse of discretion results. 89 The Court must
demonstrate its unflinching commitment to protect those cherished rights and principles embodied in the Constitution.
In this connection, it bears adding that while the scope of judicial power of review may be limited, the Constitution makes
no distinction as to the kind of legislation that may be subject to judicial scrutiny, be it in the form of social legislation or
otherwise. The reason is simple and goes back to the earlier point. The Court may pass upon the constitutionality of acts
of the legislative and the executive branches, since its duty is not to review their collective wisdom but, rather, to make
sure that they have acted in consonance with their respective authorities and rights as mandated of them by the
Constitution. If after said review, the Court finds no constitutional violations of any sort, then, it has no more authority of
proscribing the actions under review.90 This is in line with Article VIII, Section 1 of the Constitution which expressly
provides:
Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by
law.
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. [Emphases supplied]
As far back as Tanada v. Angara,91 the Court has unequivocally declared that certiorari, prohibition and mandamus are
appropriate remedies to raise constitutional issues and to review and/or prohibit/nullify, when proper, acts of legislative
and executive officials, as there is no other plain, speedy or adequate remedy in the ordinary course of law. This ruling
was later on applied in Macalintal v. COMELEC,92 Aldaba v. COMELEC,93 Magallona v. Ermita,94 and countless others. In
Tanada, the Court wrote:
In seeking to nullify an act of the Philippine Senate on the ground that it contravenes the Constitution, the petition no
doubt raises a justiciable controversy. Where an action of the legislative branch is seriously alleged to have infringed the
Constitution, it becomes not only the right but in fact the duty of the judiciary to settle the dispute. "The question thus
posed is judicial rather than political. The duty (to adjudicate) remains to assure that the supremacy of the Constitution is
upheld. " Once a "controversy as to the application or interpretation of constitutional provision is raised before this Court
(as in the instant case), it becomes a legal issue which the Court is bound by constitutional mandate to decide. [Emphasis
supplied]
In the scholarly estimation of former Supreme Court Justice Florentino Feliciano, "judicial review is essential for the
maintenance and enforcement of the separation of powers and the balancing of powers among the three great
departments of government through the definition and maintenance of the boundaries of authority and control between
them. To him, judicial review is the chief, indeed the only, medium of participation - or instrument of intervention - of the
judiciary in that balancing operation.95
Lest it be misunderstood, it bears emphasizing that the Court does not have the unbridled authority to rule on just any and
every claim of constitutional violation. Jurisprudence is replete with the rule that the power of judicial review is limited by
four exacting requisites, viz : (a) there must be an actual case or controversy; (b) the petitioners must possess locus
standi; (c) the question of constitutionality must be raised at the earliest opportunity; and (d) the issue of constitutionality
must be the lis mota of the case.96
Actual Case or Controversy
Proponents of the RH Law submit that the subj ect petitions do not present any actual case or controversy because the
RH Law has yet to be implemented.97 They claim that the questions raised by the petitions are not yet concrete and ripe
for adjudication since no one has been charged with violating any of its provisions and that there is no showing that any of
the petitioners' rights has been adversely affected by its operation. 98 In short, it is contended that judicial review of the RH
Law is premature.
An actual case or controversy means an existing case or controversy that is appropriate or ripe for determination, not
conjectural or anticipatory, lest the decision of the court would amount to an advisory opinion.99 The rule is that courts do
not sit to adjudicate mere academic questions to satisfy scholarly interest, however intellectually challenging. The
controversy must be justiciable-definite and concrete, touching on the legal relations of parties having adverse legal
interests. In other words, the pleadings must show an active antagonistic assertion of a legal right, on the one hand, and a
denial thereof, on the other; that is, it must concern a real, tangible and not merely a theoretical question or issue. There
ought to be an actual and substantial controversy admitting of specific relief through a decree conclusive in nature, as
distinguished from an opinion advising what the law would be upon a hypothetical state of facts. 100
Corollary to the requirement of an actual case or controversy is the requirement of ripeness.101 A question is ripe for
adjudication when the act being challenged has had a direct adverse effect on the individual challenging it. For a case to
be considered ripe for adjudication, it is a prerequisite that something has then been accomplished or performed by either
branch before a court may come into the picture, and the petitioner must allege the existence of an immediate or
threatened injury to himself as a result of the challenged action. He must show that he has sustained or is immediately in
danger of sustaining some direct injury as a result of the act complained of 102
In The Province of North Cotabato v. The Government of the Republic of the Philippines, 103 where the constitutionality of
an unimplemented Memorandum of Agreement on the Ancestral Domain (MOA-AD) was put in question, it was argued
that the Court has no authority to pass upon the issues raised as there was yet no concrete act performed that could
possibly violate the petitioners' and the intervenors' rights. Citing precedents, the Court ruled that the fact of the law or act
in question being not yet effective does not negate ripeness. Concrete acts under a law are not necessary to render the
controversy ripe. Even a singular violation of the Constitution and/or the law is enough to awaken judicial duty.
In this case, the Court is of the view that an actual case or controversy exists and that the same is ripe for judicial
determination. Considering that the RH Law and its implementing rules have already taken effect and that budgetary
measures to carry out the law have already been passed, it is evident that the subject petitions present a justiciable
controversy. As stated earlier, when an action of the legislative branch is seriously alleged to have infringed the
Constitution, it not only becomes a right, but also a duty of the Judiciary to settle the dispute. 104
Moreover, the petitioners have shown that the case is so because medical practitioners or medical providers are in danger
of being criminally prosecuted under the RH Law for vague violations thereof, particularly public health officers who are
threatened to be dismissed from the service with forfeiture of retirement and other benefits. They must, at least, be heard
on the matter NOW.
Facial Challenge
The OSG also assails the propriety of the facial challenge lodged by the subject petitions, contending that the RH Law
cannot be challenged "on its face" as it is not a speech regulating measure. 105
The Court is not persuaded.
In United States (US) constitutional law, a facial challenge, also known as a First Amendment Challenge, is one that is
launched to assail the validity of statutes concerning not only protected speech, but also all other rights in the First
Amendment.106 These include religious freedom, freedom of the press, and the right of the people to peaceably assemble,
and to petition the Government for a redress of grievances.107 After all, the fundamental right to religious freedom,
freedom of the press and peaceful assembly are but component rights of the right to one's freedom of expression, as they
are modes which one's thoughts are externalized.
In this jurisdiction, the application of doctrines originating from the U.S. has been generally maintained, albeit with some
modifications. While this Court has withheld the application of facial challenges to strictly penal statues,108 it has expanded
its scope to cover statutes not only regulating free speech, but also those involving religious freedom, and other
fundamental rights.109 The underlying reason for this modification is simple. For unlike its counterpart in the U.S., this
Court, under its expanded jurisdiction, is mandated by the Fundamental Law not only to settle actual controversies
involving rights which are legally demandable and enforceable, but also to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the
Government.110 Verily, the framers of Our Constitution envisioned a proactive Judiciary, ever vigilant with its duty to
maintain the supremacy of the Constitution.
Consequently, considering that the foregoing petitions have seriously alleged that the constitutional human rights to life,
speech and religion and other fundamental rights mentioned above have been violated by the assailed legislation, the
Court has authority to take cognizance of these kindred petitions and to determine if the RH Law can indeed pass
constitutional scrutiny. To dismiss these petitions on the simple expedient that there exist no actual case or controversy,
would diminish this Court as a reactive branch of government, acting only when the Fundamental Law has been
transgressed, to the detriment of the Filipino people.
Locus Standi
The OSG also attacks the legal personality of the petitioners to file their respective petitions. It contends that the "as
applied challenge" lodged by the petitioners cannot prosper as the assailed law has yet to be enforced and applied
against them,111 and the government has yet to distribute reproductive health devices that are abortive. 112
The petitioners, for their part, invariably invoke the "transcendental importance" doctrine and their status as citizens and
taxpayers in establishing the requisite locus standi.
Locus standi or legal standing is defined as a personal and substantial interest in a case such that the party has sustained
or will sustain direct injury as a result of the challenged governmental act. 113 It requires a personal stake in the outcome of
the controversy as to assure the concrete adverseness which sharpens the presentation of issues upon which the court
so largely depends for illumination of difficult constitutional questions. 114
In relation to locus standi, the "as applied challenge" embodies the rule that one can challenge the constitutionality of a
statute only if he asserts a violation of his own rights. The rule prohibits one from challenging the constitutionality of the
statute grounded on a violation of the rights of third persons not before the court. This rule is also known as the prohibition
against third-party standing.115
Transcendental Importance
Notwithstanding, the Court leans on the doctrine that "the rule on standing is a matter of procedure, hence, can be relaxed
for non-traditional plaintiffs like ordinary citizens, taxpayers, and legislators when the public interest so requires, such as
when the matter is of transcendental importance, of overreaching significance to society, or of paramount public
interest."116
In Coconut Oil Refiners Association, Inc. v. Torres,117 the Court held that in cases of paramount importance where serious
constitutional questions are involved, the standing requirement may be relaxed and a suit may be allowed to prosper even
where there is no direct injury to the party claiming the right of judicial review. In the first Emergency Powers
Cases,118 ordinary citizens and taxpayers were allowed to question the constitutionality of several executive orders
although they had only an indirect and general interest shared in common with the public.
With these said, even if the constitutionality of the RH Law may not be assailed through an "as-applied challenge, still, the
Court has time and again acted liberally on the locus s tandi requirement. It has accorded certain individuals standing to
sue, not otherwise directly injured or with material interest affected by a Government act, provided a constitutional issue of
transcendental importance is invoked. The rule on locus standi is, after all, a procedural technicality which the Court has,
on more than one occasion, waived or relaxed, thus allowing non-traditional plaintiffs, such as concerned citizens,
taxpayers, voters or legislators, to sue in the public interest, albeit they may not have been directly injured by the
operation of a law or any other government act. As held in Jaworski v. PAGCOR:119
Granting arguendo that the present action cannot be properly treated as a petition for prohibition, the transcendental
importance of the issues involved in this case warrants that we set aside the technical defects and take primary
jurisdiction over the petition at bar. One cannot deny that the issues raised herein have potentially pervasive influence on
the social and moral well being of this nation, specially the youth; hence, their proper and just determination is an
imperative need. This is in accordance with the well-entrenched principle that rules of procedure are not inflexible tools
designed to hinder or delay, but to facilitate and promote the administration of justice. Their strict and rigid application,
which would result in technicalities that tend to frustrate, rather than promote substantial justice, must always be
eschewed. (Emphasis supplied)
In view of the seriousness, novelty and weight as precedents, not only to the public, but also to the bench and bar, the
issues raised must be resolved for the guidance of all. After all, the RH Law drastically affects the constitutional provisions
on the right to life and health, the freedom of religion and expression and other constitutional rights. Mindful of all these
and the fact that the issues of contraception and reproductive health have already caused deep division among a broad
spectrum of society, the Court entertains no doubt that the petitions raise issues of transcendental importance warranting
immediate court adjudication. More importantly, considering that it is the right to life of the mother and the unborn which is
primarily at issue, the Court need not wait for a life to be taken away before taking action.
The Court cannot, and should not, exercise judicial restraint at this time when rights enshrined in the Constitution are
being imperilled to be violated. To do so, when the life of either the mother or her child is at stake, would lead to
irreparable consequences.
Declaratory Relief
The respondents also assail the petitions because they are essentially petitions for declaratory relief over which the Court
has no original jurisdiction.120 Suffice it to state that most of the petitions are praying for injunctive reliefs and so the Court
would just consider them as petitions for prohibition under Rule 65, over which it has original jurisdiction. Where the case
has far-reaching implications and prays for injunctive reliefs, the Court may consider them as petitions for prohibition
under Rule 65.121
One Subject-One Title
The petitioners also question the constitutionality of the RH Law, claiming that it violates Section 26(1 ), Article VI of the
Constitution,122 prescribing the one subject-one title rule. According to them, being one for reproductive health with
responsible parenthood, the assailed legislation violates the constitutional standards of due process by concealing its true
intent - to act as a population control measure.123
To belittle the challenge, the respondents insist that the RH Law is not a birth or population control measure,124 and that
the concepts of "responsible parenthood" and "reproductive health" are both interrelated as they are inseparable.125
Despite efforts to push the RH Law as a reproductive health law, the Court sees it as principally a population control
measure. The corpus of the RH Law is geared towards the reduction of the country's population. While it claims to save
lives and keep our women and children healthy, it also promotes pregnancy-preventing products. As stated earlier, the RH
Law emphasizes the need to provide Filipinos, especially the poor and the marginalized, with access to information on the
full range of modem family planning products and methods. These family planning methods, natural or modem, however,
are clearly geared towards the prevention of pregnancy.
For said reason, the manifest underlying objective of the RH Law is to reduce the number of births in the country.
It cannot be denied that the measure also seeks to provide pre-natal and post-natal care as well. A large portion of the
law, however, covers the dissemination of information and provisions on access to medically-safe, non-abortifacient,
effective, legal, affordable, and quality reproductive health care services, methods, devices, and supplies, which are all
intended to prevent pregnancy.
The Court, thus, agrees with the petitioners' contention that the whole idea of contraception pervades the entire RH Law.
It is, in fact, the central idea of the RH Law. 126 Indeed, remove the provisions that refer to contraception or are related to it
and the RH Law loses its very foundation.127 As earlier explained, "the other positive provisions such as skilled birth
attendance, maternal care including pre-and post-natal services, prevention and management of reproductive tract
infections including HIV/AIDS are already provided for in the Magna Carta for Women."128
Be that as it may, the RH Law does not violate the one subject/one bill rule. In Benjamin E. Cawaling, Jr. v. The
Commission on Elections and Rep. Francis Joseph G Escudero, it was written:
It is well-settled that the "one title-one subject" rule does not require the Congress to employ in the title of the enactment
language of such precision as to mirror, fully index or catalogue all the contents and the minute details therein. The rule is
sufficiently complied with if the title is comprehensive enough as to include the general object which the statute seeks to
effect, and where, as here, the persons interested are informed of the nature, scope and consequences of the proposed
law and its operation. Moreover, this Court has invariably adopted a liberal rather than technical construction of the rule
"so as not to cripple or impede legislation." [Emphases supplied]
In this case, a textual analysis of the various provisions of the law shows that both "reproductive health" and "responsible
parenthood" are interrelated and germane to the overriding objective to control the population growth. As expressed in the
first paragraph of Section 2 of the RH Law:
SEC. 2. Declaration of Policy. - The State recognizes and guarantees the human rights of all persons including their right
to equality and nondiscrimination of these rights, the right to sustainable human development, the right to health which
includes reproductive health, the right to education and information, and the right to choose and make decisions for
themselves in accordance with their religious convictions, ethics, cultural beliefs, and the demands of responsible
parenthood.
The one subject/one title rule expresses the principle that the title of a law must not be "so uncertain that the average
person reading it would not be informed of the purpose of the enactment or put on inquiry as to its contents, or which is
misleading, either in referring to or indicating one subject where another or different one is really embraced in the act, or in
omitting any expression or indication of the real subject or scope of the act." 129
Considering the close intimacy between "reproductive health" and "responsible parenthood" which bears to the attainment
of the goal of achieving "sustainable human development" as stated under its terms, the Court finds no reason to believe
that Congress intentionally sought to deceive the public as to the contents of the assailed legislation.
II - SUBSTANTIVE ISSUES:
1-The Right to Life

Position of the Petitioners
The petitioners assail the RH Law because it violates the right to life and health of the unborn child under Section 12,
Article II of the Constitution. The assailed legislation allowing access to abortifacients/abortives effectively sanctions
abortion.130
According to the petitioners, despite its express terms prohibiting abortion, Section 4(a) of the RH Law considers
contraceptives that prevent the fertilized ovum to reach and be implanted in the mother's womb as an abortifacient; thus,
sanctioning contraceptives that take effect after fertilization and prior to implantation, contrary to the intent of the Framers
of the Constitution to afford protection to the fertilized ovum which already has life.
They argue that even if Section 9 of the RH Law allows only "non-abortifacient" hormonal contraceptives, intrauterine
devices, injectables and other safe, legal, non-abortifacient and effective family planning products and supplies, medical
research shows that contraceptives use results in abortion as they operate to kill the fertilized ovum which already has
life.131
As it opposes the initiation of life, which is a fundamental human good, the petitioners assert that the State sanction of
contraceptive use contravenes natural law and is an affront to the dignity of man. 132
Finally, it is contended that since Section 9 of the RH Law requires the Food and Drug Administration (FDA) to certify that
the product or supply is not to be used as an abortifacient, the assailed legislation effectively confirms that abortifacients
are not prohibited. Also considering that the FDA is not the agency that will actually supervise or administer the use of
these products and supplies to prospective patients, there is no way it can truthfully make a certification that it shall not be
used for abortifacient purposes.133
Position of the Respondents
For their part, the defenders of the RH Law point out that the intent of the Framers of the Constitution was simply the
prohibition of abortion. They contend that the RH Law does not violate the Constitution since the said law emphasizes that
only "non-abortifacient" reproductive health care services, methods, devices products and supplies shall be made
accessible to the public.134
According to the OSG, Congress has made a legislative determination that contraceptives are not abortifacients by
enacting the RH Law. As the RH Law was enacted with due consideration to various studies and consultations with the
World Health Organization (WHO) and other experts in the medical field, it is asserted that the Court afford deference and
respect to such a determination and pass judgment only when a particular drug or device is later on determined as an
abortive.135
For his part, respondent Lagman argues that the constitutional protection of one's right to life is not violated considering
that various studies of the WHO show that life begins from the implantation of the fertilized ovum. Consequently, he
argues that the RH Law is constitutional since the law specifically provides that only contraceptives that do not prevent the
implantation of the fertilized ovum are allowed.136
The Court's Position
It is a universally accepted principle that every human being enjoys the right to life.137
Even if not formally established, the right to life, being grounded on natural law, is inherent and, therefore, not a creation
of, or dependent upon a particular law, custom, or belief. It precedes and transcends any authority or the laws of men.
In this jurisdiction, the right to life is given more than ample protection. Section 1, Article III of the Constitution provides:
Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be
denied the equal protection of the laws.
As expounded earlier, the use of contraceptives and family planning methods in the Philippines is not of recent vintage.
From the enactment of R.A. No. 4729, entitled "An Act To Regulate The Sale, Dispensation, and/or Distribution of
Contraceptive Drugs and Devices "on June 18, 1966, prescribing rules on contraceptive drugs and devices which prevent
fertilization,138 to the promotion of male vasectomy and tubal ligation,139 and the ratification of numerous international
agreements, the country has long recognized the need to promote population control through the use of contraceptives in
order to achieve long-term economic development. Through the years, however, the use of contraceptives and other
family planning methods evolved from being a component of demographic management, to one centered on the
promotion of public health, particularly, reproductive health.140
This has resulted in the enactment of various measures promoting women's rights and health and the overall promotion of
the family's well-being. Thus, aside from R.A. No. 4729, R.A. No. 6365 or "The Population Act of the Philippines" and R.A.
No. 9710, otherwise known as the "The Magna Carta of Women" were legislated. Notwithstanding this paradigm shift, the
Philippine national population program has always been grounded two cornerstone principles: "principle of no-abortion"
and the "principle of non-coercion."141 As will be discussed later, these principles are not merely grounded on
administrative policy, but rather, originates from the constitutional protection expressly provided to afford protection to life
and guarantee religious freedom.
When Life Begins*
Majority of the Members of the Court are of the position that the question of when life begins is a scientific and medical
issue that should not be decided, at this stage, without proper hearing and evidence. During the deliberation, however, it
was agreed upon that the individual members of the Court could express their own views on this matter.
In this regard, the ponente, is of the strong view that life begins at fertilization.
In answering the question of when life begins, focus should be made on the particular phrase of Section 12 which reads:
Section 12. The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic
autonomous social institution. It shall equally protect the life of the mother and the life of the unborn from conception. The
natural and primary right and duty of parents in the rearing of the youth for civic efficiency and the development of moral
character shall receive the support of the Government.
Textually, the Constitution affords protection to the unborn from conception. This is undisputable because before
conception, there is no unborn to speak of. For said reason, it is no surprise that the Constitution is mute as to any
proscription prior to conception or when life begins. The problem has arisen because, amazingly, there are quarters who
have conveniently disregarded the scientific fact that conception is reckoned from fertilization. They are waving the view
that life begins at implantation. Hence, the issue of when life begins.
In a nutshell, those opposing the RH Law contend that conception is synonymous with "fertilization" of the female ovum by
the male sperm.142 On the other side of the spectrum are those who assert that conception refers to the "implantation" of
the fertilized ovum in the uterus.143
Plain and Legal Meaning
It is a canon in statutory construction that the words of the Constitution should be interpreted in their plain and ordinary
meaning. As held in the recent case of Chavez v. Judicial Bar Council: 144
One of the primary and basic rules in statutory construction is that where the words of a statute are clear, plain, and free
from ambiguity, it must be given its literal meaning and applied without attempted interpretation. It is a well-settled
principle of constitutional construction that the language employed in the Constitution must be given their ordinary
meaning except where technical terms are employed. As much as possible, the words of the Constitution should be
understood in the sense they have in common use. What it says according to the text of the provision to be construed
compels acceptance and negates the power of the courts to alter it, based on the postulate that the framers and the
people mean what they say. Verba legis non est recedendum - from the words of a statute there should be no departure.
The raison d' etre for the rule is essentially two-fold: First, because it is assumed that the words in which constitutional
provisions are couched express the objective sought to be attained; and second, because the Constitution is not primarily
a lawyer's document but essentially that of the people, in whose consciousness it should ever be present as an important
condition for the rule of law to prevail.
In conformity with the above principle, the traditional meaning of the word "conception" which, as described and defined
by all reliable and reputable sources, means that life begins at fertilization.
Webster's Third New International Dictionary describes it as the act of becoming pregnant, formation of a viable zygote;
the fertilization that results in a new entity capable of developing into a being like its parents.145
Black's Law Dictionary gives legal meaning to the term "conception" as the fecundation of the female ovum by the male
spermatozoon resulting in human life capable of survival and maturation under normal conditions. 146
Even in jurisprudence, an unborn child has already a legal personality. In Continental Steel Manufacturing Corporation v.
Hon. Accredited Voluntary Arbitrator Allan S. Montano,147 it was written:
Life is not synonymous with civil personality. One need not acquire civil personality first before he/she could die. Even a
child inside the womb already has life. No less than the Constitution recognizes the life of the unborn from conception,
that the State must protect equally with the life of the mother. If the unborn already has life, then the cessation thereof
even prior to the child being delivered, qualifies as death. [Emphases in the original]
In Gonzales v. Carhart,148 Justice Anthony Kennedy, writing for the US Supreme Court, said that the State "has respect
for human life at all stages in the pregnancy" and "a legitimate and substantial interest in preserving and promoting fetal
life." Invariably, in the decision, the fetus was referred to, or cited, as a baby or a child. 149
Intent of the Framers
Records of the Constitutional Convention also shed light on the intention of the Framers regarding the term "conception"
used in Section 12, Article II of the Constitution. From their deliberations, it clearly refers to the moment of "fertilization."
The records reflect the following:
Rev. Rigos: In Section 9, page 3, there is a sentence which reads:
"The State shall equally protect the life of the mother and the life of the unborn from the moment of conception."
When is the moment of conception?

xxx
Mr. Villegas: As I explained in the sponsorship speech, it is when the ovum is fertilized by the sperm that there is human
life. x x x.150
xxx
As to why conception is reckoned from fertilization and, as such, the beginning of human life, it was explained:
Mr. Villegas: I propose to review this issue in a biological manner. The first question that needs to be answered is: Is the
fertilized ovum alive? Biologically categorically says yes, the fertilized ovum is alive. First of all, like all living organisms, it
takes in nutrients which it processes by itself. It begins doing this upon fertilization. Secondly, as it takes in these
nutrients, it grows from within. Thirdly, it multiplies itself at a geometric rate in the continuous process of cell division. All
these processes are vital signs of life. Therefore, there is no question that biologically the fertilized ovum has life.
The second question: Is it human? Genetics gives an equally categorical "yes." At the moment of conception, the nuclei of
the ovum and the sperm rupture. As this happens 23 chromosomes from the ovum combine with 23 chromosomes of the
sperm to form a total of 46 chromosomes. A chromosome count of 46 is found only - and I repeat, only in human cells.
Therefore, the fertilized ovum is human.
Since these questions have been answered affirmatively, we must conclude that if the fertilized ovum is both alive and
human, then, as night follows day, it must be human life. Its nature is human.151
Why the Constitution used the phrase "from the moment of conception" and not "from the moment of fertilization" was not
because of doubt when human life begins, but rather, because:
Mr. Tingson: x x x x the phrase from the moment of conception" was described by us here before with the scientific phrase
"fertilized ovum" may be beyond the comprehension of some people; we want to use the simpler phrase "from the
moment of conception."152
Thus, in order to ensure that the fertilized ovum is given ample protection under the Constitution, it was discussed:
Rev. Rigos: Yes, we think that the word "unborn" is sufficient for the purpose of writing a Constitution, without specifying
"from the moment of conception."
Mr. Davide: I would not subscribe to that particular view because according to the Commissioner's own admission, he
would leave it to Congress to define when life begins. So, Congress can define life to begin from six months after
fertilization; and that would really be very, very, dangerous. It is now determined by science that life begins from the
moment of conception. There can be no doubt about it. So we should not give any doubt to Congress, too. 153
Upon further inquiry, it was asked:
Mr. Gascon: Mr. Presiding Officer, I would like to ask a question on that point. Actually, that is one of the questions I was
going to raise during the period of interpellations but it has been expressed already. The provision, as proposed right now
states:
The State shall equally protect the life of the mother and the life of the unborn from the moment of conception.
When it speaks of "from the moment of conception," does this mean when the egg meets the sperm?
Mr. Villegas: Yes, the ovum is fertilized by the sperm.
Mr. Gascon: Therefore that does not leave to Congress the right to determine whether certain contraceptives that we
know today are abortifacient or not because it is a fact that some of the so-called contraceptives deter the rooting of the
ovum in the uterus. If fertilization has already occurred, the next process is for the fertilized ovum to travel towards the
uterus and to take root. What happens with some contraceptives is that they stop the opportunity for the fertilized ovum to
reach the uterus. Therefore, if we take the provision as it is proposed, these so called contraceptives should be banned.
Mr. Villegas: Yes, if that physical fact is established, then that is what is called abortifacient and, therefore, would be
unconstitutional and should be banned under this provision.
Mr. Gascon: Yes. So my point is that I do not think it is up to Congress to state whether or not these certain
contraceptives are abortifacient. Scientifically and based on the provision as it is now proposed, they are already
considered abortifacient.154
From the deliberations above-quoted, it is apparent that the Framers of the Constitution emphasized that the State shall
provide equal protection to both the mother and the unborn child from the earliest opportunity of life, that is, upon
fertilization or upon the union of the male sperm and the female ovum. It is also apparent is that the Framers of the
Constitution intended that to prohibit Congress from enacting measures that would allow it determine when life begins.
Equally apparent, however, is that the Framers of the Constitution did not intend to ban all contraceptives for being
unconstitutional. In fact, Commissioner Bernardo Villegas, spearheading the need to have a constitutional provision on the
right to life, recognized that the determination of whether a contraceptive device is an abortifacient is a question of fact
which should be left to the courts to decide on based on established evidence. 155
From the discussions above, contraceptives that kill or destroy the fertilized ovum should be deemed an abortive and thus
prohibited. Conversely, contraceptives that actually prevent the union of the male sperm and the female ovum, and those
that similarly take action prior to fertilization should be deemed non-abortive, and thus, constitutionally permissible.
As emphasized by the Framers of the Constitution:
xxx xxx xxx
Mr. Gascon: xx xx. As I mentioned in my speech on the US bases, I am pro-life, to the point that I would like not only to
protect the life of the unborn, but also the lives of the millions of people in the world by fighting for a nuclear-free world. I
would just like to be assured of the legal and pragmatic implications of the term "protection of the life of the unborn from
the moment of conception." I raised some of these implications this afternoon when I interjected in the interpellation of
Commissioner Regalado. I would like to ask that question again for a categorical answer.
I mentioned that if we institutionalize the term "the life of the unborn from the moment of conception" we are also actually
saying "no," not "maybe," to certain contraceptives which are already being encouraged at this point in time. Is that the
sense of the committee or does it disagree with me?
Mr. Azcuna: No, Mr. Presiding Officer, because contraceptives would be preventive. There is no unborn yet. That is yet
unshaped.
Mr. Gascon: Yes, Mr. Presiding Officer, but I was speaking more about some contraceptives, such as the intra-uterine
device which actually stops the egg which has already been fertilized from taking route to the uterus. So if we say "from
the moment of conception," what really occurs is that some of these contraceptives will have to be unconstitutionalized.
Mr. Azcuna: Yes, to the extent that it is after the fertilization.
Mr. Gascon: Thank you, Mr. Presiding Officer.156
The fact that not all contraceptives are prohibited by the 1987 Constitution is even admitted by petitioners during the oral
arguments. There it was conceded that tubal ligation, vasectomy, even condoms are not classified as abortifacients. 157
Atty. Noche:
Before the union of the eggs, egg and the sperm, there is no life yet.
Justice Bersamin:
There is no life.
Atty. Noche:
So, there is no life to be protected.
Justice Bersamin:
To be protected.
Atty. Noche:
Under Section 12, yes.
Justice Bersamin:
So you have no objection to condoms?
Atty. Noche:
Not under Section 12, Article II.
Justice Bersamin:
Even if there is already information that condoms sometimes have porosity?
Atty. Noche:
Well, yes, Your Honor, there are scientific findings to that effect, Your Honor, but I am discussing here Section 12, Article
II, Your Honor, yes.
Justice Bersamin:
Alright.
Atty. Noche:
And it's not, I have to admit it's not an abortifacient, Your Honor. 158
Medical Meaning
That conception begins at fertilization is not bereft of medical foundation. Mosby s Medical, Nursing, and Allied Health
Dictionary defines conception as "the beginning of pregnancy usually taken to be the instant a spermatozoon enters an
ovum and forms a viable zygote."159
It describes fertilization as "the union of male and female gametes to form a zygote from which the embryo develops."160
The Textbook of Obstetrics (Physiological & Pathological Obstetrics), 161 used by medical schools in the Philippines, also
concludes that human life (human person) begins at the moment of fertilization with the union of the egg and the sperm
resulting in the formation of a new individual, with a unique genetic composition that dictates all developmental stages that
ensue.
Similarly, recent medical research on the matter also reveals that: "Human development begins after the union of male
and female gametes or germ cells during a process known as fertilization (conception). Fertilization is a sequence of
events that begins with the contact of a sperm (spermatozoon) with a secondary oocyte (ovum) and ends with the fusion
of their pronuclei (the haploid nuclei of the sperm and ovum) and the mingling of their chromosomes to form a new cell.
This fertilized ovum, known as a zygote, is a large diploid cell that is the beginning, or primordium, of a human being." 162
The authors of Human Embryology & Teratology163 mirror the same position. They wrote: "Although life is a continuous
process, fertilization is a critical landmark because, under ordinary circumstances, a new, genetically distinct human
organism is thereby formed.... The combination of 23 chromosomes present in each pronucleus results in 46
chromosomes in the zygote. Thus the diploid number is restored and the embryonic genome is formed. The embryo now
exists as a genetic unity."
In support of the RH Bill, The Philippine Medical Association came out with a "Paper on the Reproductive Health Bill
(Responsible Parenthood Bill)" and therein concluded that:
CONCLUSION
The PMA throws its full weight in supporting the RH Bill at the same time that PMA maintains its strong position that
fertilization is sacred because it is at this stage that conception, and thus human life, begins. Human lives are sacred from
the moment of conception, and that destroying those new lives is never licit, no matter what the purported good outcome
would be. In terms of biology and human embryology, a human being begins immediately at fertilization and after that,
there is no point along the continuous line of human embryogenesis where only a "potential" human being can be posited.
Any philosophical, legal, or political conclusion cannot escape this objective scientific fact.
The scientific evidence supports the conclusion that a zygote is a human organism and that the life of a new human being
commences at a scientifically well defined "moment of conception." This conclusion is objective, consistent with the
factual evidence, and independent of any specific ethical, moral, political, or religious view of human life or of human
embryos.164
Conclusion: The Moment of Conception is Reckoned from

Fertilization
In all, whether it be taken from a plain meaning, or understood under medical parlance, and more importantly, following
the intention of the Framers of the Constitution, the undeniable conclusion is that a zygote is a human organism and that
the life of a new human being commences at a scientifically well-defined moment of conception, that is, upon fertilization.
For the above reasons, the Court cannot subscribe to the theory advocated by Hon. Lagman that life begins at
implantation.165 According to him, "fertilization and conception are two distinct and successive stages in the reproductive
process. They are not identical and synonymous."166 Citing a letter of the WHO, he wrote that "medical authorities confirm
that the implantation of the fertilized ovum is the commencement of conception and it is only after implantation that
pregnancy can be medically detected."167
This theory of implantation as the beginning of life is devoid of any legal or scientific mooring. It does not pertain to the
beginning of life but to the viability of the fetus. The fertilized ovum/zygote is not an inanimate object - it is a living human
being complete with DNA and 46 chromosomes.168 Implantation has been conceptualized only for convenience by those
who had population control in mind. To adopt it would constitute textual infidelity not only to the RH Law but also to the
Constitution.
Not surprisingly, even the OSG does not support this position.
If such theory would be accepted, it would unnervingly legitimize the utilization of any drug or device that would prevent
the implantation of the fetus at the uterine wall. It would be provocative and further aggravate religious-based
divisiveness.
It would legally permit what the Constitution proscribes - abortion and abortifacients.
The RH Law and Abortion
The clear and unequivocal intent of the Framers of the 1987 Constitution in protecting the life of the unborn from
conception was to prevent the Legislature from enacting a measure legalizing abortion. It was so clear that even the Court
cannot interpret it otherwise. This intent of the Framers was captured in the record of the proceedings of the 1986
Constitutional Commission. Commissioner Bernardo Villegas, the principal proponent of the protection of the unborn from
conception, explained:
The intention .. .is to make sure that there would be no pro-abortion laws ever passed by Congress or any pro-abortion
decision passed by the Supreme Court.169
A reading of the RH Law would show that it is in line with this intent and actually proscribes abortion. While the Court has
opted not to make any determination, at this stage, when life begins, it finds that the RH Law itself clearly mandates that
protection be afforded from the moment of fertilization. As pointed out by Justice Carpio, the RH Law is replete with
provisions that embody the policy of the law to protect to the fertilized ovum and that it should be afforded safe travel to
the uterus for implantation.170
Moreover, the RH Law recognizes that abortion is a crime under Article 256 of the Revised Penal Code, which penalizes
the destruction or expulsion of the fertilized ovum. Thus:
1] xx x.
Section 4. Definition of Terms. - For the purpose of this Act, the following terms shall be defined as follows:
xxx.
(q) Reproductive health care refers to the access to a full range of methods, facilities, services and supplies that
contribute to reproductive health and well-being by addressing reproductive health-related problems. It also includes
sexual health, the purpose of which is the enhancement of life and personal relations. The elements of reproductive health
care include the following:
xxx.
(3) Proscription of abortion and management of abortion complications;
xxx.
2] xx x.
Section 4. x x x.
(s) Reproductive health rights refers to the rights of individuals and couples, to decide freely and responsibly whether or
not to have children; the number, spacing and timing of their children; to make other decisions concerning reproduction,
free of discrimination, coercion and violence; to have the information and means to do so; and to attain the highest
standard of sexual health and reproductive health: Provided, however, That reproductive health rights do not include
abortion, and access to abortifacients.
3] xx x.
SEC. 29. Repealing Clause. - Except for prevailing laws against abortion, any law, presidential decree or issuance,
executive order, letter of instruction, administrative order, rule or regulation contrary to or is inconsistent with the
provisions of this Act including Republic Act No. 7392, otherwise known as the Midwifery Act, is hereby repealed, modified
or amended accordingly.
The RH Law and Abortifacients
In carrying out its declared policy, the RH Law is consistent in prohibiting abortifacients. To be clear, Section 4(a) of the
RH Law defines an abortifacient as:
Section 4. Definition of Terms - x x x x
(a) Abortifacient refers to any drug or device that induces abortion or the destruction of a fetus inside the mother's womb
or the prevention of the fertilized ovum to reach and be implanted in the mother's womb upon determination of the FDA.
As stated above, the RH Law mandates that protection must be afforded from the moment of fertilization. By using the
word " or," the RH Law prohibits not only drugs or devices that prevent implantation, but also those that induce abortion
and those that induce the destruction of a fetus inside the mother's womb. Thus, an abortifacient is any drug or device that
either:
(a) Induces abortion; or
(b) Induces the destruction of a fetus inside the mother's womb; or
(c) Prevents the fertilized ovum to reach and be implanted in the mother's womb, upon determination of the FDA.
Contrary to the assertions made by the petitioners, the Court finds that the RH Law, consistent with the Constitution,
recognizes that the fertilized ovum already has life and that the State has a bounden duty to protect it. The conclusion
becomes clear because the RH Law, first, prohibits any drug or device that induces abortion (first kind), which, as
discussed exhaustively above, refers to that which induces the killing or the destruction of the fertilized ovum, and,
second, prohibits any drug or device the fertilized ovum to reach and be implanted in the mother's womb (third kind).
By expressly declaring that any drug or device that prevents the fertilized ovum to reach and be implanted in the mother's
womb is an abortifacient (third kind), the RH Law does not intend to mean at all that life only begins only at implantation,
as Hon. Lagman suggests. It also does not declare either that protection will only be given upon implantation, as the
petitioners likewise suggest. Rather, it recognizes that: one, there is a need to protect the fertilized ovum which already
has life, and two, the fertilized ovum must be protected the moment it becomes existent - all the way until it reaches and
implants in the mother's womb. After all, if life is only recognized and afforded protection from the moment the fertilized
ovum implants - there is nothing to prevent any drug or device from killing or destroying the fertilized ovum prior to
implantation.
From the foregoing, the Court finds that inasmuch as it affords protection to the fertilized ovum, the RH Law does not
sanction abortion. To repeat, it is the Court's position that life begins at fertilization, not at implantation. When a fertilized
ovum is implanted in the uterine wall , its viability is sustained but that instance of implantation is not the point of beginning
of life. It started earlier. And as defined by the RH Law, any drug or device that induces abortion, that is, which kills or
destroys the fertilized ovum or prevents the fertilized ovum to reach and be implanted in the mother's womb, is an
abortifacient.
Proviso Under Section 9 of the RH Law
This notwithstanding, the Court finds that the proviso under Section 9 of the law that "any product or supply included or to
be included in the EDL must have a certification from the FDA that said product and supply is made available on the
condition that it is not to be used as an abortifacient" as empty as it is absurd. The FDA, with all its expertise, cannot fully
attest that a drug or device will not all be used as an abortifacient, since the agency cannot be present in every instance
when the contraceptive product or supply will be used.171
Pursuant to its declared policy of providing access only to safe, legal and non-abortifacient contraceptives, however, the
Court finds that the proviso of Section 9, as worded, should bend to the legislative intent and mean that "any product or
supply included or to be included in the EDL must have a certification from the FDA that said product and supply is made
available on the condition that it cannot be used as abortifacient." Such a construction is consistent with the proviso under
the second paragraph of the same section that provides:
Provided, further, That the foregoing offices shall not purchase or acquire by any means emergency contraceptive pills,
postcoital pills, abortifacients that will be used for such purpose and their other forms or equivalent.
Abortifacients under the RH-IRR
At this juncture, the Court agrees with ALFI that the authors of the RH-IRR gravely abused their office when they
redefined the meaning of abortifacient. The RH Law defines "abortifacient" as follows:
SEC. 4. Definition of Terms. - For the purpose of this Act, the following terms shall be defined as follows:
(a) Abortifacient refers to any drug or device that induces abortion or the destruction of a fetus inside the mother's womb
or the prevention of the fertilized ovum to reach and be implanted in the mother's womb upon determination of the FDA.
Section 3.0l (a) of the IRR, however, redefines "abortifacient" as:
Section 3.01 For purposes of these Rules, the terms shall be defined as follows:
a) Abortifacient refers to any drug or device that primarily induces abortion or the destruction of a fetus inside the mother's
womb or the prevention of the fertilized ovum to reach and be implanted in the mother's womb upon determination of the
Food and Drug Administration (FDA). [Emphasis supplied]
Again in Section 3.0lG) of the RH-IRR, "contraceptive," is redefined, viz:
j) Contraceptive refers to any safe, legal, effective and scientifically proven modern family planning method, device, or
health product, whether natural or artificial, that prevents pregnancy but does not primarily destroy a fertilized ovum or
prevent a fertilized ovum from being implanted in the mother's womb in doses of its approved indication as determined by
the Food and Drug Administration (FDA).
The above-mentioned section of the RH-IRR allows "contraceptives" and recognizes as "abortifacient" only those that
primarily induce abortion or the destruction of a fetus inside the mother's womb or the prevention of the fertilized ovum to
reach and be implanted in the mother's womb.172
This cannot be done.
In this regard, the observations of Justice Brion and Justice Del Castillo are well taken. As they pointed out, with the
insertion of the word "primarily," Section 3.0l(a) and G) of the RH-IRR173 must be struck down for being ultra vires.
Evidently, with the addition of the word "primarily," in Section 3.0l(a) and G) of the RH-IRR is indeed ultra vires. It
contravenes Section 4(a) of the RH Law and should, therefore, be declared invalid. There is danger that the insertion of
the qualifier "primarily" will pave the way for the approval of contraceptives which may harm or destroy the life of the
unborn from conception/fertilization in violation of Article II, Section 12 of the Constitution. With such qualification in the
RH-IRR, it appears to insinuate that a contraceptive will only be considered as an "abortifacient" if its sole known effect is
abortion or, as pertinent here, the prevention of the implantation of the fertilized ovum.
For the same reason, this definition of "contraceptive" would permit the approval of contraceptives which are actually
abortifacients because of their fail-safe mechanism.174
Also, as discussed earlier, Section 9 calls for the certification by the FDA that these contraceptives cannot act as abortive.
With this, together with the definition of an abortifacient under Section 4 (a) of the RH Law and its declared policy against
abortion, the undeniable conclusion is that contraceptives to be included in the PNDFS and the EDL will not only be those
contraceptives that do not have the primary action of causing abortion or the destruction of a fetus inside the mother's
womb or the prevention of the fertilized ovum to reach and be implanted in the mother's womb, but also those that do not
have the secondary action of acting the same way.
Indeed, consistent with the constitutional policy prohibiting abortion, and in line with the principle that laws should be
construed in a manner that its constitutionality is sustained, the RH Law and its implementing rules must be consistent
with each other in prohibiting abortion. Thus, the word " primarily" in Section 3.0l(a) and G) of the RH-IRR should be
declared void. To uphold the validity of Section 3.0l(a) and G) of the RH-IRR and prohibit only those contraceptives that
have the primary effect of being an abortive would effectively "open the floodgates to the approval of contraceptives which
may harm or destroy the life of the unborn from conception/fertilization in violation of Article II, Section 12 of the
Constitution."175
To repeat and emphasize, in all cases, the "principle of no abortion" embodied in the constitutional protection of life must
be upheld.
2-The Right to Health
The petitioners claim that the RH Law violates the right to health because it requires the inclusion of hormonal
contraceptives, intrauterine devices, injectables and family products and supplies in the National Drug Formulary and the
inclusion of the same in the regular purchase of essential medicines and supplies of all national hospitals. 176 Citing
various studies on the matter, the petitioners posit that the risk of developing breast and cervical cancer is greatly
increased in women who use oral contraceptives as compared to women who never use them. They point out that the risk
is decreased when the use of contraceptives is discontinued. Further, it is contended that the use of combined oral
contraceptive pills is associated with a threefold increased risk of venous thromboembolism, a twofold increased risk of
ischematic stroke, and an indeterminate effect on risk of myocardial infarction. 177 Given the definition of "reproductive
health" and "sexual health" under Sections 4(p)178 and (w)179 of the RH Law, the petitioners assert that the assailed
legislation only seeks to ensure that women have pleasurable and satisfying sex lives. 180
The OSG, however, points out that Section 15, Article II of the Constitution is not self-executory, it being a mere statement
of the administration's principle and policy. Even if it were self-executory, the OSG posits that medical authorities refute
the claim that contraceptive pose a danger to the health of women.181
A component to the right to life is the constitutional right to health. In this regard, the Constitution is replete with provisions
protecting and promoting the right to health. Section 15, Article II of the Constitution provides:
Section 15. The State shall protect and promote the right to health of the people and instill health consciousness among
them.
A portion of Article XIII also specifically provides for the States' duty to provide for the health of the people, viz:
HEALTH
Section 11. The State shall adopt an integrated and comprehensive approach to health development which shall
endeavor to make essential goods, health and other social services available to all the people at affordable cost. There
shall be priority for the needs of the underprivileged, sick, elderly, disabled, women, and children. The State shall
endeavor to provide free medical care to paupers.
Section 12. The State shall establish and maintain an effective food and drug regulatory system and undertake
appropriate health, manpower development, and research, responsive to the country's health needs and problems.
Section 13. The State shall establish a special agency for disabled person for their rehabilitation, self-development, and
self-reliance, and their integration into the mainstream of society.
Finally, Section 9, Article XVI provides:
Section 9. The State shall protect consumers from trade malpractices and from substandard or hazardous products.
Contrary to the respondent's notion, however, these provisions are self-executing. Unless the provisions clearly express
the contrary, the provisions of the Constitution should be considered self-executory. There is no need for legislation to
implement these self-executing provisions.182 In Manila Prince Hotel v. GSIS,183 it was stated:
x x x Hence, unless it is expressly provided that a legislative act is necessary to enforce a constitutional mandate, the
presumption now is that all provisions of the constitution are self-executing. If the constitutional provisions are treated as
requiring legislation instead of self-executing, the legislature would have the power to ignore and practically nullify the
mandate of the fundamental law. This can be cataclysmic. That is why the prevailing view is, as it has always been, that –
... in case of doubt, the Constitution should be considered self-executing rather than non-self-executing. . . . Unless the
contrary is clearly intended, the provisions of the Constitution should be considered self-executing, as a contrary rule
would give the legislature discretion to determine when, or whether, they shall be effective. These provisions would be
subordinated to the will of the lawmaking body, which could make them entirely meaningless by simply refusing to pass
the needed implementing statute. (Emphases supplied)
This notwithstanding, it bears mentioning that the petitioners, particularly ALFI, do not question contraception and
contraceptives per se.184 In fact, ALFI prays that the status quo - under R.A. No. 5921 and R.A. No. 4729, the sale and
distribution of contraceptives are not prohibited when they are dispensed by a prescription of a duly licensed by a
physician - be maintained.185
The legislative intent in the enactment of the RH Law in this regard is to leave intact the provisions of R.A. No. 4729.
There is no intention at all to do away with it. It is still a good law and its requirements are still in to be complied with.
Thus, the Court agrees with the observation of respondent Lagman that the effectivity of the RH Law will not lead to the
unmitigated proliferation of contraceptives since the sale, distribution and dispensation of contraceptive drugs and devices
will still require the prescription of a licensed physician. With R.A. No. 4729 in place, there exists adequate safeguards to
ensure the public that only contraceptives that are safe are made available to the public. As aptly explained by respondent
Lagman:
D. Contraceptives cannot be
dispensed and used without
prescription
108. As an added protection to voluntary users of contraceptives, the same cannot be dispensed and used without
prescription.
109. Republic Act No. 4729 or "An Act to Regulate the Sale, Dispensation, and/ or Distribution of Contraceptive Drugs and
Devices" and Republic Act No. 5921 or "An Act Regulating the Practice of Pharmacy and Setting Standards of
Pharmaceutical Education in the Philippines and for Other Purposes" are not repealed by the RH Law and the provisions
of said Acts are not inconsistent with the RH Law.
110. Consequently, the sale, distribution and dispensation of contraceptive drugs and devices are particularly governed by
RA No. 4729 which provides in full:
"Section 1. It shall be unlawful for any person, partnership, or corporation, to sell, dispense or otherwise distribute whether
for or without consideration, any contraceptive drug or device, unless such sale, dispensation or distribution is by a duly
licensed drug store or pharmaceutical company and with the prescription of a qualified medical practitioner.
"Sec. 2 . For the purpose of this Act:
"(a) "Contraceptive drug" is any medicine, drug, chemical, or portion which is used exclusively for the purpose of
preventing fertilization of the female ovum: and
"(b) "Contraceptive device" is any instrument, device, material, or agent introduced into the female reproductive
system for the primary purpose of preventing conception.
"Sec. 3 Any person, partnership, or corporation, violating the provisions of this Act shall be punished with a fine of not
more than five hundred pesos or an imprisonment of not less than six months or more than one year or both in the
discretion of the Court.
"This Act shall take effect upon its approval.
"Approved: June 18, 1966"
111. Of the same import, but in a general manner, Section 25 of RA No. 5921 provides:
"Section 25. Sale of medicine, pharmaceuticals, drugs and devices. No medicine, pharmaceutical, or drug of whatever
nature and kind or device shall be compounded, dispensed, sold or resold, or otherwise be made available to the
consuming public except through a prescription drugstore or hospital pharmacy, duly established in accordance with the
provisions of this Act.
112. With all of the foregoing safeguards, as provided for in the RH Law and other relevant statutes, the pretension of the
petitioners that the RH Law will lead to the unmitigated proliferation of contraceptives, whether harmful or not, is
completely unwarranted and baseless.186 [Emphases in the Original. Underlining supplied.]
In Re: Section 10 of the RH Law:
The foregoing safeguards should be read in connection with Section 10 of the RH Law which provides:
SEC. 10. Procurement and Distribution of Family Planning Supplies. - The DOH shall procure, distribute to LGUs and
monitor the usage of family planning supplies for the whole country. The DOH shall coordinate with all appropriate local
government bodies to plan and implement this procurement and distribution program. The supply and budget allotments
shall be based on, among others, the current levels and projections of the following:
(a) Number of women of reproductive age and couples who want to space or limit their children;
(b) Contraceptive prevalence rate, by type of method used; and

(c) Cost of family planning supplies.
Provided, That LGUs may implement its own procurement, distribution and monitoring program consistent with the overall
provisions of this Act and the guidelines of the DOH.
Thus, in the distribution by the DOH of contraceptive drugs and devices, it must consider the provisions of R.A. No. 4729,
which is still in effect, and ensure that the contraceptives that it will procure shall be from a duly licensed drug store or
pharmaceutical company and that the actual dispensation of these contraceptive drugs and devices will done following a
prescription of a qualified medical practitioner. The distribution of contraceptive drugs and devices must not be
indiscriminately done. The public health must be protected by all possible means. As pointed out by Justice De Castro, a
heavy responsibility and burden are assumed by the government in supplying contraceptive drugs and devices, for it may
be held accountable for any injury, illness or loss of life resulting from or incidental to their use. 187
At any rate, it bears pointing out that not a single contraceptive has yet been submitted to the FDA pursuant to the RH
Law. It behooves the Court to await its determination which drugs or devices are declared by the FDA as safe, it being the
agency tasked to ensure that food and medicines available to the public are safe for public consumption. Consequently,
the Court finds that, at this point, the attack on the RH Law on this ground is premature. Indeed, the various kinds of
contraceptives must first be measured up to the constitutional yardstick as expounded herein, to be determined as the
case presents itself.
At this point, the Court is of the strong view that Congress cannot legislate that hormonal contraceptives and intra-uterine
devices are safe and non-abortifacient. The first sentence of Section 9 that ordains their inclusion by the National Drug
Formulary in the EDL by using the mandatory "shall" is to be construed as operative only after they have been tested,
evaluated, and approved by the FDA. The FDA, not Congress, has the expertise to determine whether a particular
hormonal contraceptive or intrauterine device is safe and non-abortifacient. The provision of the third sentence concerning
the requirements for the inclusion or removal of a particular family planning supply from the EDL supports this
construction.
Stated differently, the provision in Section 9 covering the inclusion of hormonal contraceptives, intra-uterine devices,
injectables, and other safe, legal, non-abortifacient and effective family planning products and supplies by the National
Drug Formulary in the EDL is not mandatory. There must first be a determination by the FDA that they are in fact safe,
legal, non-abortifacient and effective family planning products and supplies. There can be no predetermination by
Congress that the gamut of contraceptives are "safe, legal, non-abortifacient and effective" without the proper scientific
examination.
3 -Freedom of Religion
and the Right to Free Speech
Position of the Petitioners:
1. On Contraception
While contraceptives and procedures like vasectomy and tubal ligation are not covered by the constitutional proscription,
there are those who, because of their religious education and background, sincerely believe that contraceptives, whether
abortifacient or not, are evil. Some of these are medical practitioners who essentially claim that their beliefs prohibit not
only the use of contraceptives but also the willing participation and cooperation in all things dealing with contraceptive
use. Petitioner PAX explained that "contraception is gravely opposed to marital chastity, it is contrary to the good of the
transmission of life, and to the reciprocal self-giving of the spouses; it harms true love and denies the sovereign rule of
God in the transmission of Human life."188
The petitioners question the State-sponsored procurement of contraceptives, arguing that the expenditure of their taxes
on contraceptives violates the guarantee of religious freedom since contraceptives contravene their religious beliefs. 189
2. On Religious Accommodation and

The Duty to Refer
Petitioners Imbong and Luat note that while the RH Law attempts to address religious sentiments by making provisions for
a conscientious objector, the constitutional guarantee is nonetheless violated because the law also imposes upon the
conscientious objector the duty to refer the patient seeking reproductive health services to another medical practitioner
who would be able to provide for the patient's needs. For the petitioners, this amounts to requiring the conscientious
objector to cooperate with the very thing he refuses to do without violating his/her religious beliefs.190
They further argue that even if the conscientious objector's duty to refer is recognized, the recognition is unduly limited,
because although it allows a conscientious objector in Section 23 (a)(3) the option to refer a patient seeking reproductive
health services and information - no escape is afforded the conscientious objector in Section 23 (a)(l) and (2), i.e. against
a patient seeking reproductive health procedures. They claim that the right of other individuals to conscientiously object,
such as: a) those working in public health facilities referred to in Section 7; b) public officers involved in the
implementation of the law referred to in Section 23(b ); and c) teachers in public schools referred to in Section 14 of the
RH Law, are also not recognize.191
Petitioner Echavez and the other medical practitioners meanwhile, contend that the requirement to refer the matter to
another health care service provider is still considered a compulsion on those objecting healthcare service providers. They
add that compelling them to do the act against their will violates the Doctrine of Benevolent Neutrality. Sections 9, 14 and
1 7 of the law are too secular that they tend to disregard the religion of Filipinos. Authorizing the use of contraceptives with
abortive effects, mandatory sex education, mandatory pro-bono reproductive health services to indigents encroach upon
the religious freedom of those upon whom they are required. 192
Petitioner CFC also argues that the requirement for a conscientious objector to refer the person seeking reproductive
health care services to another provider infringes on one's freedom of religion as it forces the objector to become an
unwilling participant in the commission of a serious sin under Catholic teachings. While the right to act on one's belief may
be regulated by the State, the acts prohibited by the RH Law are passive acts which produce neither harm nor injury to
the public.193
Petitioner CFC adds that the RH Law does not show compelling state interest to justify regulation of religious freedom
because it mentions no emergency, risk or threat that endangers state interests. It does not explain how the rights of the
people (to equality, non-discrimination of rights, sustainable human development, health, education, information, choice
and to make decisions according to religious convictions, ethics, cultural beliefs and the demands of responsible
parenthood) are being threatened or are not being met as to justify the impairment of religious freedom. 194
Finally, the petitioners also question Section 15 of the RH Law requiring would-be couples to attend family planning and
responsible parenthood seminars and to obtain a certificate of compliance. They claim that the provision forces individuals
to participate in the implementation of the RH Law even if it contravenes their religious beliefs. 195 As the assailed law
dangles the threat of penalty of fine and/or imprisonment in case of non-compliance with its provisions, the petitioners
claim that the RH Law forcing them to provide, support and facilitate access and information to contraception against their
beliefs must be struck down as it runs afoul to the constitutional guarantee of religious freedom.
The Respondents' Positions
The respondents, on the other hand, contend that the RH Law does not provide that a specific mode or type of
contraceptives be used, be it natural or artificial. It neither imposes nor sanctions any religion or belief.196 They point out
that the RH Law only seeks to serve the public interest by providing accessible, effective and quality reproductive health
services to ensure maternal and child health, in line with the State's duty to bring to reality the social justice health
guarantees of the Constitution,197 and that what the law only prohibits are those acts or practices, which deprive others of
their right to reproductive health.198 They assert that the assailed law only seeks to guarantee informed choice, which is
an assurance that no one will be compelled to violate his religion against his free will. 199
The respondents add that by asserting that only natural family planning should be allowed, the petitioners are effectively
going against the constitutional right to religious freedom, the same right they invoked to assail the constitutionality of the
RH Law.200 In other words, by seeking the declaration that the RH Law is unconstitutional, the petitioners are asking that
the Court recognize only the Catholic Church's sanctioned natural family planning methods and impose this on the entire
citizenry.201
With respect to the duty to refer, the respondents insist that the same does not violate the constitutional guarantee of
religious freedom, it being a carefully balanced compromise between the interests of the religious objector, on one hand,
who is allowed to keep silent but is required to refer -and that of the citizen who needs access to information and who has
the right to expect that the health care professional in front of her will act professionally. For the respondents, the
concession given by the State under Section 7 and 23(a)(3) is sufficient accommodation to the right to freely exercise
one's religion without unnecessarily infringing on the rights of others. 202
Whatever burden is placed on the petitioner's religious freedom is minimal as the duty to refer is limited in duration,
location and impact.203
Regarding mandatory family planning seminars under Section 15 , the respondents claim that it is a reasonable regulation
providing an opportunity for would-be couples to have access to information regarding parenthood, family planning,
breastfeeding and infant nutrition. It is argued that those who object to any information received on account of their
attendance in the required seminars are not compelled to accept information given to them. They are completely free to
reject any information they do not agree with and retain the freedom to decide on matters of family life without intervention
of the State.204
For their part, respondents De Venecia et al., dispute the notion that natural family planning is the only method acceptable
to Catholics and the Catholic hierarchy. Citing various studies and surveys on the matter, they highlight the changing
stand of the Catholic Church on contraception throughout the years and note the general acceptance of the benefits of
contraceptives by its followers in planning their families.
The Church and The State
At the outset, it cannot be denied that we all live in a heterogeneous society. It is made up of people of diverse ethnic,
cultural and religious beliefs and backgrounds. History has shown us that our government, in law and in practice, has
allowed these various religious, cultural, social and racial groups to thrive in a single society together. It has embraced
minority groups and is tolerant towards all - the religious people of different sects and the non-believers. The undisputed
fact is that our people generally believe in a deity, whatever they conceived Him to be, and to whom they call for guidance
and enlightenment in crafting our fundamental law. Thus, the preamble of the present Constitution reads:
We, the sovereign Filipino people, imploring the aid of Almighty God, in order to build a just and humane society, and
establish a Government that shall embody our ideals and aspirations, promote the common good, conserve and develop
our patrimony, and secure to ourselves and our posterity, the blessings of independence and democracy under the rule of
law and a regime of truth, justice, freedom, love, equality, and peace, do ordain and promulgate this Constitution.
The Filipino people in "imploring the aid of Almighty God " manifested their spirituality innate in our nature and
consciousness as a people, shaped by tradition and historical experience. As this is embodied in the preamble, it means
that the State recognizes with respect the influence of religion in so far as it instills into the mind the purest principles of
morality.205 Moreover, in recognition of the contributions of religion to society, the 1935, 1973 and 1987 constitutions
contain benevolent and accommodating provisions towards religions such as tax exemption of church property, salary of
religious officers in government institutions, and optional religious instructions in public schools.
The Framers, however, felt the need to put up a strong barrier so that the State would not encroach into the affairs of the
church, and vice-versa. The principle of separation of Church and State was, thus, enshrined in Article II, Section 6 of the
1987 Constitution, viz:
Section 6. The separation of Church and State shall be inviolable.
Verily, the principle of separation of Church and State is based on mutual respect.1âwphi1 Generally, the State cannot
meddle in the internal affairs of the church, much less question its faith and dogmas or dictate upon it. It cannot favor one
religion and discriminate against another. On the other hand, the church cannot impose its beliefs and convictions on the
State and the rest of the citizenry. It cannot demand that the nation follow its beliefs, even if it sincerely believes that they
are good for the country.
Consistent with the principle that not any one religion should ever be preferred over another, the Constitution in the
above-cited provision utilizes the term "church" in its generic sense, which refers to a temple, a mosque, an iglesia, or any
other house of God which metaphorically symbolizes a religious organization. Thus, the "Church" means the religious
congregations collectively.
Balancing the benefits that religion affords and the need to provide an ample barrier to protect the State from the pursuit
of its secular objectives, the Constitution lays down the following mandate in Article III, Section 5 and Article VI, Section
29 (2), of the 1987 Constitution:
Section. 5. No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The free
exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed.
No religious test shall be required for the exercise of civil or political rights.
Section 29.
xxx.
No public money or property shall be appropriated, applied, paid, or employed, directly or indirectly, for the use, benefit, or
support of any sect, church, denomination, sectarian institution, or system of religion, or of any priest, preacher, minister,
other religious teacher, or dignitary as such, except when such priest, preacher, minister, or dignitary is assigned to the
armed forces, or to any penal institution, or government orphanage or leprosarium.
In short, the constitutional assurance of religious freedom provides two guarantees: the Establishment Clause and the
Free Exercise Clause.
The establishment clause "principally prohibits the State from sponsoring any religion or favoring any religion as against
other religions. It mandates a strict neutrality in affairs among religious groups."206 Essentially, it prohibits the
establishment of a state religion and the use of public resources for the support or prohibition of a religion.
On the other hand, the basis of the free exercise clause is the respect for the inviolability of the human
conscience.207 Under this part of religious freedom guarantee, the State is prohibited from unduly interfering with the
outside manifestations of one's belief and faith.208 Explaining the concept of religious freedom, the Court, in Victoriano v.
Elizalde Rope Workers Union209 wrote:
The constitutional provisions not only prohibits legislation for the support of any religious tenets or the modes of worship of
any sect, thus forestalling compulsion by law of the acceptance of any creed or the practice of any form of worship (U.S.
Ballard, 322 U.S. 78, 88 L. ed. 1148, 1153), but also assures the free exercise of one's chosen form of religion within
limits of utmost amplitude. It has been said that the religion clauses of the Constitution are all designed to protect the
broadest possible liberty of conscience, to allow each man to believe as his conscience directs, to profess his beliefs, and
to live as he believes he ought to live, consistent with the liberty of others and with the common good. Any legislation
whose effect or purpose is to impede the observance of one or all religions, or to discriminate invidiously between the
religions, is invalid, even though the burden may be characterized as being only indirect. (Sherbert v. Verner, 374 U.S.
398, 10 L.ed.2d 965, 83 S. Ct. 1970) But if the state regulates conduct by enacting, within its power, a general law which
has for its purpose and effect to advance the state's secular goals, the statute is valid despite its indirect burden on
religious observance, unless the state can accomplish its purpose without imposing such burden. (Braunfeld v. Brown,
366 U.S. 599, 6 Led. 2d. 563, 81 S. Ct. 144; McGowan v. Maryland, 366 U.S. 420, 444-5 and 449).
As expounded in Escritor,
The establishment and free exercise clauses were not designed to serve contradictory purposes. They have a single goal-
to promote freedom of individual religious beliefs and practices. In simplest terms, the free exercise clause prohibits
government from inhibiting religious beliefs with penalties for religious beliefs and practice, while the establishment clause
prohibits government from inhibiting religious belief with rewards for religious beliefs and practices. In other words, the two
religion clauses were intended to deny government the power to use either the carrot or the stick to influence individual
religious beliefs and practices.210
Corollary to the guarantee of free exercise of one's religion is the principle that the guarantee of religious freedom is
comprised of two parts: the freedom to believe, and the freedom to act on one's belief. The first part is absolute. As
explained in Gerona v. Secretary of Education:211
The realm of belief and creed is infinite and limitless bounded only by one's imagination and thought. So is the freedom of
belief, including religious belief, limitless and without bounds. One may believe in most anything, however strange, bizarre
and unreasonable the same may appear to others, even heretical when weighed in the scales of orthodoxy or doctrinal
standards. But between the freedom of belief and the exercise of said belief, there is quite a stretch of road to travel. 212
The second part however, is limited and subject to the awesome power of the State and can be enjoyed only with proper
regard to the rights of others. It is "subject to regulation where the belief is translated into external acts that affect the
public welfare."213
Legislative Acts and the
Free Exercise Clause

Thus, in case of conflict between the free exercise clause and the State, the Court adheres to the doctrine of benevolent
neutrality. This has been clearly decided by the Court in Estrada v. Escritor, (Escritor) 214 where it was stated "that
benevolent neutrality-accommodation, whether mandatory or permissive, is the spirit, intent and framework underlying the
Philippine Constitution."215 In the same case, it was further explained that"
The benevolent neutrality theory believes that with respect to these governmental actions, accommodation of religion may
be allowed, not to promote the government's favored form of religion, but to allow individuals and groups to exercise their
religion without hindrance. "The purpose of accommodation is to remove a burden on, or facilitate the exercise of, a
person's or institution's religion."216 "What is sought under the theory of accommodation is not a declaration of
unconstitutionality of a facially neutral law, but an exemption from its application or its 'burdensome effect,' whether by the
legislature or the courts."217
In ascertaining the limits of the exercise of religious freedom, the compelling state interest test is proper. 218 Underlying the
compelling state interest test is the notion that free exercise is a fundamental right and that laws burdening it should be
subject to strict scrutiny.219 In Escritor, it was written:
Philippine jurisprudence articulates several tests to determine these limits. Beginning with the first case on the Free
Exercise Clause, American Bible Society, the Court mentioned the "clear and present danger" test but did not employ it.
Nevertheless, this test continued to be cited in subsequent cases on religious liberty. The Gerona case then pronounced
that the test of permissibility of religious freedom is whether it violates the established institutions of society and law. The
Victoriano case mentioned the "immediate and grave danger" test as well as the doctrine that a law of general applicability
may burden religious exercise provided the law is the least restrictive means to accomplish the goal of the law. The case
also used, albeit inappropriately, the "compelling state interest" test. After Victoriano , German went back to the Gerona
rule. Ebralinag then employed the "grave and immediate danger" test and overruled the Gerona test. The fairly recent
case of Iglesia ni Cristo went back to the " clear and present danger" test in the maiden case of A merican Bible Society.
Not surprisingly, all the cases which employed the "clear and present danger" or "grave and immediate danger" test
involved, in one form or another, religious speech as this test is often used in cases on freedom of expression. On the
other hand, the Gerona and German cases set the rule that religious freedom will not prevail over established institutions
of society and law. Gerona, however, which was the authority cited by German has been overruled by Ebralinag which
employed the "grave and immediate danger" test . Victoriano was the only case that employed the "compelling state
interest" test, but as explained previously, the use of the test was inappropriate to the facts of the case.
The case at bar does not involve speech as in A merican Bible Society, Ebralinag and Iglesia ni Cristo where the "clear
and present danger" and "grave and immediate danger" tests were appropriate as speech has easily discernible or
immediate effects. The Gerona and German doctrine, aside from having been overruled, is not congruent with the
benevolent neutrality approach, thus not appropriate in this jurisdiction. Similar to Victoriano, the present case involves
purely conduct arising from religious belief. The "compelling state interest" test is proper where conduct is involved for the
whole gamut of human conduct has different effects on the state's interests: some effects may be immediate and short-
term while others delayed and far-reaching. A test that would protect the interests of the state in preventing a substantive
evil, whether immediate or delayed, is therefore necessary. However, not any interest of the state would suffice to prevail
over the right to religious freedom as this is a fundamental right that enjoys a preferred position in the hierarchy of rights -
"the most inalienable and sacred of all human rights", in the words of Jefferson. This right is sacred for an invocation of
the Free Exercise Clause is an appeal to a higher sovereignty. The entire constitutional order of limited government is
premised upon an acknowledgment of such higher sovereignty, thus the Filipinos implore the "aid of Almighty God in
order to build a just and humane society and establish a government." As held in Sherbert, only the gravest abuses,
endangering paramount interests can limit this fundamental right. A mere balancing of interests which balances a right
with just a colorable state interest is therefore not appropriate. Instead, only a compelling interest of the state can prevail
over the fundamental right to religious liberty. The test requires the state to carry a heavy burden, a compelling one, for to
do otherwise would allow the state to batter religion, especially the less powerful ones until they are destroyed. In
determining which shall prevail between the state's interest and religious liberty, reasonableness shall be the guide. The
"compelling state interest" serves the purpose of revering religious liberty while at the same time affording protection to
the paramount interests of the state. This was the test used in Sherbert which involved conduct, i.e. refusal to work on
Saturdays. In the end, the "compelling state interest" test, by upholding the paramount interests of the state, seeks to
protect the very state, without which, religious liberty will not be preserved. [Emphases in the original. Underlining
supplied.]
In the case at bench, it is not within the province of the Court to determine whether the use of contraceptives or one's
participation in the support of modem reproductive health measures is moral from a religious standpoint or whether the
same is right or wrong according to one's dogma or belief. For the Court has declared that matters dealing with "faith,
practice, doctrine, form of worship, ecclesiastical law, custom and rule of a church ... are unquestionably ecclesiastical
matters which are outside the province of the civil courts."220 The jurisdiction of the Court extends only to public and
secular morality. Whatever pronouncement the Court makes in the case at bench should be understood only in this realm
where it has authority. Stated otherwise, while the Court stands without authority to rule on ecclesiastical matters, as
vanguard of the Constitution, it does have authority to determine whether the RH Law contravenes the guarantee of
religious freedom.
At first blush, it appears that the RH Law recognizes and respects religion and religious beliefs and convictions. It is
replete with assurances the no one can be compelled to violate the tenets of his religion or defy his religious convictions
against his free will. Provisions in the RH Law respecting religious freedom are the following:
1. The State recognizes and guarantees the human rights of all persons including their right to equality and
nondiscrimination of these rights, the right to sustainable human development, the right to health which includes
reproductive health, the right to education and information, and the right to choose and make decisions for themselves in
accordance with their religious convictions, ethics, cultural beliefs, and the demands of responsible parenthood. [Section
2, Declaration of Policy]
2 . The State recognizes marriage as an inviolable social institution and the foundation of the family which in turn is the
foundation of the nation. Pursuant thereto, the State shall defend:
(a) The right of spouses to found a family in accordance with their religious convictions and the demands of responsible
parenthood." [Section 2, Declaration of Policy]
3. The State shall promote and provide information and access, without bias, to all methods of family planning, including
effective natural and modern methods which have been proven medically safe, legal, non-abortifacient, and effective in
accordance with scientific and evidence-based medical research standards such as those registered and approved by the
FDA for the poor and marginalized as identified through the NHTS-PR and other government measures of identifying
marginalization: Provided, That the State shall also provide funding support to promote modern natural methods of family
planning, especially the Billings Ovulation Method, consistent with the needs of acceptors and their religious convictions.
[Section 3(e), Declaration of Policy]
4. The State shall promote programs that: (1) enable individuals and couples to have the number of children they desire
with due consideration to the health, particularly of women, and the resources available and affordable to them and in
accordance with existing laws, public morals and their religious convictions. [Section 3CDJ
5. The State shall respect individuals' preferences and choice of family planning methods that are in accordance with their
religious convictions and cultural beliefs, taking into consideration the State's obligations under various human rights
instruments. [Section 3(h)]
6. Active participation by nongovernment organizations (NGOs) , women's and people's organizations, civil society, faith-
based organizations, the religious sector and communities is crucial to ensure that reproductive health and population and
development policies, plans, and programs will address the priority needs of women, the poor, and the marginalized.
[Section 3(i)]
7. Responsible parenthood refers to the will and ability of a parent to respond to the needs and aspirations of the family
and children. It is likewise a shared responsibility between parents to determine and achieve the desired number of
children, spacing and timing of their children according to their own family life aspirations, taking into account
psychological preparedness, health status, sociocultural and economic concerns consistent with their religious
convictions. [Section 4(v)] (Emphases supplied)
While the Constitution prohibits abortion, laws were enacted allowing the use of contraceptives. To some medical
practitioners, however, the whole idea of using contraceptives is an anathema. Consistent with the principle of benevolent
neutrality, their beliefs should be respected.
The Establishment Clause
and Contraceptives
In the same breath that the establishment clause restricts what the government can do with religion, it also limits what
religious sects can or cannot do with the government. They can neither cause the government to adopt their particular
doctrines as policy for everyone, nor can they not cause the government to restrict other groups. To do so, in simple
terms, would cause the State to adhere to a particular religion and, thus, establishing a state religion.
Consequently, the petitioners are misguided in their supposition that the State cannot enhance its population control
program through the RH Law simply because the promotion of contraceptive use is contrary to their religious beliefs.
Indeed, the State is not precluded to pursue its legitimate secular objectives without being dictated upon by the policies of
any one religion. One cannot refuse to pay his taxes simply because it will cloud his conscience. The demarcation line
between Church and State demands that one render unto Caesar the things that are Caesar's and unto God the things
that are God's.221
The Free Exercise Clause and the Duty to Refer
While the RH Law, in espousing state policy to promote reproductive health manifestly respects diverse religious beliefs in
line with the Non-Establishment Clause, the same conclusion cannot be reached with respect to Sections 7, 23 and 24
thereof. The said provisions commonly mandate that a hospital or a medical practitioner to immediately refer a person
seeking health care and services under the law to another accessible healthcare provider despite their conscientious
objections based on religious or ethical beliefs.
In a situation where the free exercise of religion is allegedly burdened by government legislation or practice, the
compelling state interest test in line with the Court's espousal of the Doctrine of Benevolent Neutrality in Escritor, finds
application. In this case, the conscientious objector's claim to religious freedom would warrant an exemption from
obligations under the RH Law, unless the government succeeds in demonstrating a more compelling state interest in the
accomplishment of an important secular objective. Necessarily so, the plea of conscientious objectors for exemption from
the RH Law deserves no less than strict scrutiny.
In applying the test, the first inquiry is whether a conscientious objector's right to religious freedom has been burdened. As
in Escritor, there is no doubt that an intense tug-of-war plagues a conscientious objector. One side coaxes him into
obedience to the law and the abandonment of his religious beliefs, while the other entices him to a clean conscience yet
under the pain of penalty. The scenario is an illustration of the predicament of medical practitioners whose religious beliefs
are incongruent with what the RH Law promotes.
The Court is of the view that the obligation to refer imposed by the RH Law violates the religious belief and conviction of a
conscientious objector. Once the medical practitioner, against his will, refers a patient seeking information on modem
reproductive health products, services, procedures and methods, his conscience is immediately burdened as he has been
compelled to perform an act against his beliefs. As Commissioner Joaquin A. Bernas (Commissioner Bernas) has written,
"at the basis of the free exercise clause is the respect for the inviolability of the human conscience. 222
Though it has been said that the act of referral is an opt-out clause, it is, however, a false compromise because it makes
pro-life health providers complicit in the performance of an act that they find morally repugnant or offensive. They cannot,
in conscience, do indirectly what they cannot do directly. One may not be the principal, but he is equally guilty if he abets
the offensive act by indirect participation.
Moreover, the guarantee of religious freedom is necessarily intertwined with the right to free speech, it being an
externalization of one's thought and conscience. This in turn includes the right to be silent. With the constitutional
guarantee of religious freedom follows the protection that should be afforded to individuals in communicating their beliefs
to others as well as the protection for simply being silent. The Bill of Rights guarantees the liberty of the individual to utter
what is in his mind and the liberty not to utter what is not in his mind. 223 While the RH Law seeks to provide freedom of
choice through informed consent, freedom of choice guarantees the liberty of the religious conscience and prohibits any
degree of compulsion or burden, whether direct or indirect, in the practice of one's religion. 224
In case of conflict between the religious beliefs and moral convictions of individuals, on one hand, and the interest of the
State, on the other, to provide access and information on reproductive health products, services, procedures and methods
to enable the people to determine the timing, number and spacing of the birth of their children, the Court is of the strong
view that the religious freedom of health providers, whether public or private, should be accorded primacy. Accordingly, a
conscientious objector should be exempt from compliance with the mandates of the RH Law. If he would be compelled to
act contrary to his religious belief and conviction, it would be violative of "the principle of non-coercion" enshrined in the
constitutional right to free exercise of religion.
Interestingly, on April 24, 2013, Scotland's Inner House of the Court of Session, found in the case of Doogan and Wood v.
NHS Greater Glasgow and Clyde Health Board,225 that the midwives claiming to be conscientious objectors under the
provisions of Scotland's Abortion Act of 1967, could not be required to delegate, supervise or support staff on their labor
ward who were involved in abortions.226 The Inner House stated "that if 'participation' were defined according to whether
the person was taking part 'directly' or ' indirectly' this would actually mean more complexity and uncertainty." 227
While the said case did not cover the act of referral, the applicable principle was the same - they could not be forced to
assist abortions if it would be against their conscience or will.
Institutional Health Providers
The same holds true with respect to non-maternity specialty hospitals and hospitals owned and operated by a religious
group and health care service providers. Considering that Section 24 of the RH Law penalizes such institutions should
they fail or refuse to comply with their duty to refer under Section 7 and Section 23(a)(3), the Court deems that it must be
struck down for being violative of the freedom of religion. The same applies to Section 23(a)(l) and (a)(2) in relation to
Section 24, considering that in the dissemination of information regarding programs and services and in the performance
of reproductive health procedures, the religious freedom of health care service providers should be respected.
In the case of Islamic Da'wah Council of the Philippines, Inc. v. Office of the Executive Secretary228 it was stressed:
Freedom of religion was accorded preferred status by the framers of our fundamental law. And this Court has consistently
affirmed this preferred status, well aware that it is "designed to protect the broadest possible liberty of conscience, to allow
each man to believe as his conscience directs, to profess his beliefs, and to live as he believes he ought to live, consistent
with the liberty of others and with the common good."10
The Court is not oblivious to the view that penalties provided by law endeavour to ensure compliance. Without set
consequences for either an active violation or mere inaction, a law tends to be toothless and ineffectual. Nonetheless,
when what is bartered for an effective implementation of a law is a constitutionally-protected right the Court firmly chooses
to stamp its disapproval. The punishment of a healthcare service provider, who fails and/or refuses to refer a patient to
another, or who declines to perform reproductive health procedure on a patient because incompatible religious beliefs, is
a clear inhibition of a constitutional guarantee which the Court cannot allow.
The Implementing Rules and Regulation (RH-IRR)
The last paragraph of Section 5.24 of the RH-IRR reads:
Provided, That skilled health professional such as provincial, city or municipal health officers, chiefs of hospital, head
nurses, supervising midwives, among others, who by virtue of their office are specifically charged with the duty to
implement the provisions of the RPRH Act and these Rules, cannot be considered as conscientious objectors.
This is discriminatory and violative of the equal protection clause. The conscientious objection clause should be equally
protective of the religious belief of public health officers. There is no perceptible distinction why they should not be
considered exempt from the mandates of the law. The protection accorded to other conscientious objectors should equally
apply to all medical practitioners without distinction whether they belong to the public or private sector. After all, the
freedom to believe is intrinsic in every individual and the protective robe that guarantees its free exercise is not taken off
even if one acquires employment in the government.
It should be stressed that intellectual liberty occupies a place inferior to none in the hierarchy of human values. The mind
must be free to think what it wills, whether in the secular or religious sphere, to give expression to its beliefs by oral
discourse or through the media and, thus, seek other candid views in occasions or gatherings or in more permanent
aggrupation. Embraced in such concept then are freedom of religion, freedom of speech, of the press, assembly and
petition, and freedom of association.229
The discriminatory provision is void not only because no such exception is stated in the RH Law itself but also because it
is violative of the equal protection clause in the Constitution. Quoting respondent Lagman, if there is any conflict between
the RH-IRR and the RH Law, the law must prevail.
Justice Mendoza:
I'll go to another point. The RH law .. .in your Comment- in-Intervention on page 52, you mentioned RH Law is replete with
provisions in upholding the freedom of religion and respecting religious convictions. Earlier, you affirmed this with
qualifications. Now, you have read, I presumed you have read the IRR-Implementing Rules and Regulations of the RH
Bill?
Congressman Lagman:
Yes, Your Honor, I have read but I have to admit, it's a long IRR and I have not thoroughly dissected the nuances of the
provisions.
Justice Mendoza:
I will read to you one provision. It's Section 5.24. This I cannot find in the RH Law. But in the IRR it says: " .... skilled
health professionals such as provincial, city or municipal health officers, chief of hospitals, head nurses, supervising
midwives, among others, who by virtue of their office are specifically charged with the duty to implement the provisions of
the RPRH Act and these Rules, cannot be considered as conscientious objectors." Do you agree with this?
Congressman Lagman:
I will have to go over again the provisions, Your Honor.
Justice Mendoza:
In other words, public health officers in contrast to the private practitioners who can be conscientious objectors, skilled
health professionals cannot be considered conscientious objectors. Do you agree with this? Is this not against the
constitutional right to the religious belief?
Congressman Lagman:
Your Honor, if there is any conflict between the IRR and the law, the law must prevail. 230
Compelling State Interest
The foregoing discussion then begets the question on whether the respondents, in defense of the subject provisions, were
able to: 1] demonstrate a more compelling state interest to restrain conscientious objectors in their choice of services to
render; and 2] discharge the burden of proof that the obligatory character of the law is the least intrusive means to achieve
the objectives of the law.
Unfortunately, a deep scrutiny of the respondents' submissions proved to be in vain. The OSG was curiously silent in the
establishment of a more compelling state interest that would rationalize the curbing of a conscientious objector's right not
to adhere to an action contrary to his religious convictions. During the oral arguments, the OSG maintained the same
silence and evasion. The Transcripts of the Stenographic Notes disclose the following:
Justice De Castro:
Let's go back to the duty of the conscientious objector to refer. ..
Senior State Solicitor Hilbay:
Yes, Justice.
Justice De Castro:
... which you are discussing awhile ago with Justice Abad. What is the compelling State interest in imposing this duty to
refer to a conscientious objector which refuses to do so because of his religious belief?

Ahh, Your Honor, ..
Justice De Castro:
What is the compelling State interest to impose this burden?
In the first place, Your Honor, I don't believe that the standard is a compelling State interest, this is an ordinary health
legislation involving professionals. This is not a free speech matter or a pure free exercise matter. This is a regulation by
the State of the relationship between medical doctors and their patients. 231
Resultantly, the Court finds no compelling state interest which would limit the free exercise clause of the conscientious
objectors, however few in number. Only the prevention of an immediate and grave danger to the security and welfare of
the community can justify the infringement of religious freedom. If the government fails to show the seriousness and
immediacy of the threat, State intrusion is constitutionally unacceptable. 232
Freedom of religion means more than just the freedom to believe. It also means the freedom to act or not to act according
to what one believes. And this freedom is violated when one is compelled to act against one's belief or is prevented from
acting according to one's belief.233
Apparently, in these cases, there is no immediate danger to the life or health of an individual in the perceived scenario of
the subject provisions. After all, a couple who plans the timing, number and spacing of the birth of their children refers to a
future event that is contingent on whether or not the mother decides to adopt or use the information, product, method or
supply given to her or whether she even decides to become pregnant at all. On the other hand, the burden placed upon
those who object to contraceptive use is immediate and occurs the moment a patient seeks consultation on reproductive
health matters.
Moreover, granting that a compelling interest exists to justify the infringement of the conscientious objector's religious
freedom, the respondents have failed to demonstrate "the gravest abuses, endangering paramount interests" which could
limit or override a person's fundamental right to religious freedom. Also, the respondents have not presented any
government effort exerted to show that the means it takes to achieve its legitimate state objective is the least intrusive
means.234 Other than the assertion that the act of referring would only be momentary, considering that the act of referral
by a conscientious objector is the very action being contested as violative of religious freedom, it behooves the
respondents to demonstrate that no other means can be undertaken by the State to achieve its objective without violating
the rights of the conscientious objector. The health concerns of women may still be addressed by other practitioners who
may perform reproductive health-related procedures with open willingness and motivation. Suffice it to say, a person who
is forced to perform an act in utter reluctance deserves the protection of the Court as the last vanguard of constitutional
freedoms.
At any rate, there are other secular steps already taken by the Legislature to ensure that the right to health is protected.
Considering other legislations as they stand now, R.A . No. 4 729 or the Contraceptive Act, R.A. No. 6365 or "The
Population Act of the Philippines" and R.A. No. 9710, otherwise known as "The Magna Carta of Women," amply cater to
the needs of women in relation to health services and programs. The pertinent provision of Magna Carta on
comprehensive health services and programs for women, in fact, reads:
Section 17. Women's Right to Health. - (a) Comprehensive Health Services. - The State shall, at all times, provide for a
comprehensive, culture-sensitive, and gender-responsive health services and programs covering all stages of a woman's
life cycle and which addresses the major causes of women's mortality and morbidity: Provided, That in the provision for
comprehensive health services, due respect shall be accorded to women's religious convictions, the rights of the spouses
to found a family in accordance with their religious convictions, and the demands of responsible parenthood, and the right
of women to protection from hazardous drugs, devices, interventions, and substances.
Access to the following services shall be ensured:
(1) Maternal care to include pre- and post-natal services to address pregnancy and infant health and
nutrition;
(2) Promotion of breastfeeding;

(3) Responsible, ethical, legal, safe, and effective methods of family planning;
(4) Family and State collaboration in youth sexuality education and health services without prejudice to
the primary right and duty of parents to educate their children;
(5) Prevention and management of reproductive tract infections, including sexually transmitted diseases,
HIV, and AIDS;
(6) Prevention and management of reproductive tract cancers like breast and cervical cancers, and other
gynecological conditions and disorders;
(7) Prevention of abortion and management of pregnancy-related complications;
(8) In cases of violence against women and children, women and children victims and survivors shall be
provided with comprehensive health services that include psychosocial, therapeutic, medical, and legal
interventions and assistance towards healing, recovery, and empowerment;
(9) Prevention and management of infertility and sexual dysfunction pursuant to ethical norms and
medical standards;
(10) Care of the elderly women beyond their child-bearing years; and
(11) Management, treatment, and intervention of mental health problems of women and girls. In addition,
healthy lifestyle activities are encouraged and promoted through programs and projects as strategies in
the prevention of diseases.
(b) Comprehensive Health Information and Education. - The State shall provide women in all sectors with appropriate,
timely, complete, and accurate information and education on all the above-stated aspects of women's health in
government education and training programs, with due regard to the following:
(1) The natural and primary right and duty of parents in the rearing of the youth and the development of
moral character and the right of children to be brought up in an atmosphere of morality and rectitude for
the enrichment and strengthening of character;
(2) The formation of a person's sexuality that affirms human dignity; and
(3) Ethical, legal, safe, and effective family planning methods including fertility awareness.
As an afterthought, Asst. Solicitor General Hilbay eventually replied that the compelling state interest was "Fifteen
maternal deaths per day, hundreds of thousands of unintended pregnancies, lives changed, x x x." 235 He, however, failed
to substantiate this point by concrete facts and figures from reputable sources.
The undisputed fact, however, is that the World Health Organization reported that the Filipino maternal mortality rate
dropped to 48 percent from 1990 to 2008, 236 although there was still no RH Law at that time. Despite such revelation, the
proponents still insist that such number of maternal deaths constitute a compelling state interest.
Granting that there are still deficiencies and flaws in the delivery of social healthcare programs for Filipino women, they
could not be solved by a measure that puts an unwarrantable stranglehold on religious beliefs in exchange for blind
conformity.
Exception: Life Threatening Cases
All this notwithstanding, the Court properly recognizes a valid exception set forth in the law. While generally healthcare
service providers cannot be forced to render reproductive health care procedures if doing it would contravene their
religious beliefs, an exception must be made in life-threatening cases that require the performance of emergency
procedures. In these situations, the right to life of the mother should be given preference, considering that a referral by a
medical practitioner would amount to a denial of service, resulting to unnecessarily placing the life of a mother in grave
danger. Thus, during the oral arguments, Atty. Liban, representing CFC, manifested: "the forced referral clause that we
are objecting on grounds of violation of freedom of religion does not contemplate an emergency."237
In a conflict situation between the life of the mother and the life of a child, the doctor is morally obliged always to try to
save both lives. If, however, it is impossible, the resulting death to one should not be deliberate. Atty. Noche explained:
Principle of Double-Effect. - May we please remind the principal author of the RH Bill in the House of Representatives of
the principle of double-effect wherein intentional harm on the life of either the mother of the child is never justified to bring
about a "good" effect. In a conflict situation between the life of the child and the life of the mother, the doctor is morally
obliged always to try to save both lives. However, he can act in favor of one (not necessarily the mother) when it is
medically impossible to save both, provided that no direct harm is intended to the other. If the above principles are
observed, the loss of the child's life or the mother's life is not intentional and, therefore, unavoidable. Hence, the doctor
would not be guilty of abortion or murder. The mother is never pitted against the child because both their lives are equally
valuable.238
Accordingly, if it is necessary to save the life of a mother, procedures endangering the life of the child may be resorted to
even if is against the religious sentiments of the medical practitioner. As quoted above, whatever burden imposed upon a
medical practitioner in this case would have been more than justified considering the life he would be able to save.
Family Planning Seminars
Anent the requirement imposed under Section 15239 as a condition for the issuance of a marriage license, the Court finds
the same to be a reasonable exercise of police power by the government. A cursory reading of the assailed provision
bares that the religious freedom of the petitioners is not at all violated. All the law requires is for would-be spouses to
attend a seminar on parenthood, family planning breastfeeding and infant nutrition. It does not even mandate the type of
family planning methods to be included in the seminar, whether they be natural or artificial. As correctly noted by the
OSG, those who receive any information during their attendance in the required seminars are not compelled to accept the
information given to them, are completely free to reject the information they find unacceptable, and retain the freedom to
decide on matters of family life without the intervention of the State.
4-The Family and the Right to Privacy
Petitioner CFC assails the RH Law because Section 23(a) (2) (i) thereof violates the provisions of the Constitution by
intruding into marital privacy and autonomy. It argues that it cultivates disunity and fosters animosity in the family rather
than promote its solidarity and total development.240
The Court cannot but agree.
The 1987 Constitution is replete with provisions strengthening the family as it is the basic social institution. In fact, one
article, Article XV, is devoted entirely to the family.
ARTICLE XV
THE FAMILY
Section 1. The State recognizes the Filipino family as the foundation of the nation. Accordingly, it shall strengthen its
solidarity and actively promote its total development.
Section 2. Marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the State.
Section 3. The State shall defend:
The right of spouses to found a family in accordance with their religious convictions and the demands of responsible
parenthood;
The right of children to assistance, including proper care and nutrition, and special protection from all forms of neglect,
abuse, cruelty, exploitation and other conditions prejudicial to their development;
The right of the family to a family living wage and income; and
The right of families or family assoc1at1ons to participate in the planning and implementation of policies and programs
that affect them.
In this case, the RH Law, in its not-so-hidden desire to control population growth, contains provisions which tend to wreck
the family as a solid social institution. It bars the husband and/or the father from participating in the decision making
process regarding their common future progeny. It likewise deprives the parents of their authority over their minor
daughter simply because she is already a parent or had suffered a miscarriage.
The Family and Spousal Consent
Section 23(a) (2) (i) of the RH Law states:
The following acts are prohibited:
(a) Any health care service provider, whether public or private, who shall: ...
(2) refuse to perform legal and medically-safe reproductive health procedures on any person of legal age on the ground of
lack of consent or authorization of the following persons in the following instances:
(i) Spousal consent in case of married persons: provided, That in case of disagreement, the decision of the one
undergoing the procedures shall prevail. [Emphasis supplied]
The above provision refers to reproductive health procedures like tubal litigation and vasectomy which, by their very
nature, should require mutual consent and decision between the husband and the wife as they affect issues intimately
related to the founding of a family. Section 3, Art. XV of the Constitution espouses that the State shall defend the "right of
the spouses to found a family." One person cannot found a family. The right, therefore, is shared by both spouses. In the
same Section 3, their right "to participate in the planning and implementation of policies and programs that affect them " is
equally recognized.
The RH Law cannot be allowed to infringe upon this mutual decision-making. By giving absolute authority to the spouse
who would undergo a procedure, and barring the other spouse from participating in the decision would drive a wedge
between the husband and wife, possibly result in bitter animosity, and endanger the marriage and the family, all for the
sake of reducing the population. This would be a marked departure from the policy of the State to protect marriage as an
inviolable social institution.241
Decision-making involving a reproductive health procedure is a private matter which belongs to the couple, not just one of
them. Any decision they would reach would affect their future as a family because the size of the family or the number of
their children significantly matters. The decision whether or not to undergo the procedure belongs exclusively to, and
shared by, both spouses as one cohesive unit as they chart their own destiny. It is a constitutionally guaranteed private
right. Unless it prejudices the State, which has not shown any compelling interest, the State should see to it that they chart
their destiny together as one family.
As highlighted by Justice Leonardo-De Castro, Section 19( c) of R.A. No. 9710, otherwise known as the "Magna Carta for
Women," provides that women shall have equal rights in all matters relating to marriage and family relations, including the
joint decision on the number and spacing of their children. Indeed, responsible parenthood, as Section 3(v) of the RH Law
states, is a shared responsibility between parents. Section 23(a)(2)(i) of the RH Law should not be allowed to betray the
constitutional mandate to protect and strengthen the family by giving to only one spouse the absolute authority to decide
whether to undergo reproductive health procedure.242
The right to chart their own destiny together falls within the protected zone of marital privacy and such state intervention
would encroach into the zones of spousal privacy guaranteed by the Constitution. In our jurisdiction, the right to privacy
was first recognized in Marje v. Mutuc,243 where the Court, speaking through Chief Justice Fernando, held that "the right
to privacy as such is accorded recognition independently of its identification with liberty; in itself, it is fully deserving of
constitutional protection."244 Marje adopted the ruling of the US Supreme Court in Griswold v. Connecticut, 245 where
Justice William O. Douglas wrote:
We deal with a right of privacy older than the Bill of Rights -older than our political parties, older than our school system.
Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is
an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not
commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.
Ironically, Griswold invalidated a Connecticut statute which made the use of contraceptives a criminal offense on the
ground of its amounting to an unconstitutional invasion of the right to privacy of married persons. Nevertheless, it
recognized the zone of privacy rightfully enjoyed by couples. Justice Douglas in Grisworld wrote that "specific guarantees
in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and
substance. Various guarantees create zones of privacy."246
At any rate, in case of conflict between the couple, the courts will decide.
The Family and Parental Consent
Equally deplorable is the debarment of parental consent in cases where the minor, who will be undergoing a procedure, is
already a parent or has had a miscarriage. Section 7 of the RH law provides:
SEC. 7. Access to Family Planning. – x x x.
No person shall be denied information and access to family planning services, whether natural or artificial: Provided, That
minors will not be allowed access to modern methods of family planning without written consent from their parents or
guardian/s except when the minor is already a parent or has had a miscarriage.
There can be no other interpretation of this provision except that when a minor is already a parent or has had a
miscarriage, the parents are excluded from the decision making process of the minor with regard to family planning. Even
if she is not yet emancipated, the parental authority is already cut off just because there is a need to tame population
growth.
It is precisely in such situations when a minor parent needs the comfort, care, advice, and guidance of her own parents.
The State cannot replace her natural mother and father when it comes to providing her needs and comfort. To say that
their consent is no longer relevant is clearly anti-family. It does not promote unity in the family. It is an affront to the
constitutional mandate to protect and strengthen the family as an inviolable social institution.
More alarmingly, it disregards and disobeys the constitutional mandate that "the natural and primary right and duty of
parents in the rearing of the youth for civic efficiency and the development of moral character shall receive the support of
the Government."247 In this regard, Commissioner Bernas wrote:
The 1987 provision has added the adjective "primary" to modify the right of parents. It imports the assertion that the right
of parents is superior to that of the State.248 [Emphases supplied]
To insist on a rule that interferes with the right of parents to exercise parental control over their minor-child or the right of
the spouses to mutually decide on matters which very well affect the very purpose of marriage, that is, the establishment
of conjugal and family life, would result in the violation of one's privacy with respect to his family. It would be dismissive of
the unique and strongly-held Filipino tradition of maintaining close family ties and violative of the recognition that the State
affords couples entering into the special contract of marriage to as one unit in forming the foundation of the family and
society.
The State cannot, without a compelling state interest, take over the role of parents in the care and custody of a minor
child, whether or not the latter is already a parent or has had a miscarriage. Only a compelling state interest can justify a
state substitution of their parental authority.
First Exception: Access to Information
Whether with respect to the minor referred to under the exception provided in the second paragraph of Section 7 or with
respect to the consenting spouse under Section 23(a)(2)(i), a distinction must be made. There must be a differentiation
between access to information about family planning services, on one hand, and access to the reproductive health
procedures and modern family planning methods themselves, on the other. Insofar as access to information is concerned,
the Court finds no constitutional objection to the acquisition of information by the minor referred to under the exception in
the second paragraph of Section 7 that would enable her to take proper care of her own body and that of her unborn child.
After all, Section 12, Article II of the Constitution mandates the State to protect both the life of the mother as that of the
unborn child. Considering that information to enable a person to make informed decisions is essential in the protection
and maintenance of ones' health, access to such information with respect to reproductive health must be allowed. In this
situation, the fear that parents might be deprived of their parental control is unfounded because they are not prohibited to
exercise parental guidance and control over their minor child and assist her in deciding whether to accept or reject the
information received.
Second Exception: Life Threatening Cases
As in the case of the conscientious objector, an exception must be made in life-threatening cases that require the
performance of emergency procedures. In such cases, the life of the minor who has already suffered a miscarriage and
that of the spouse should not be put at grave risk simply for lack of consent. It should be emphasized that no person
should be denied the appropriate medical care urgently needed to preserve the primordial right, that is, the right to life.
In this connection, the second sentence of Section 23(a)(2)(ii) 249 should be struck down. By effectively limiting the
requirement of parental consent to "only in elective surgical procedures," it denies the parents their right of parental
authority in cases where what is involved are "non-surgical procedures." Save for the two exceptions discussed above,
and in the case of an abused child as provided in the first sentence of Section 23(a)(2)(ii), the parents should not be
deprived of their constitutional right of parental authority. To deny them of this right would be an affront to the
constitutional mandate to protect and strengthen the family.
5 - Academic Freedom
It is asserted that Section 14 of the RH Law, in relation to Section 24 thereof, mandating the teaching of Age-and
Development-Appropriate Reproductive Health Education under threat of fine and/or imprisonment violates the principle of
academic freedom . According to the petitioners, these provisions effectively force educational institutions to teach
reproductive health education even if they believe that the same is not suitable to be taught to their students. 250 Citing
various studies conducted in the United States and statistical data gathered in the country, the petitioners aver that the
prevalence of contraceptives has led to an increase of out-of-wedlock births; divorce and breakdown of families; the
acceptance of abortion and euthanasia; the "feminization of poverty"; the aging of society; and promotion of promiscuity
among the youth.251
At this point, suffice it to state that any attack on the validity of Section 14 of the RH Law is premature because the
Department of Education, Culture and Sports has yet to formulate a curriculum on age-appropriate reproductive health
education. One can only speculate on the content, manner and medium of instruction that will be used to educate the
adolescents and whether they will contradict the religious beliefs of the petitioners and validate their apprehensions. Thus,
considering the premature nature of this particular issue, the Court declines to rule on its constitutionality or validity.
At any rate, Section 12, Article II of the 1987 Constitution provides that the natural and primary right and duty of parents in
the rearing of the youth for civic efficiency and development of moral character shall receive the support of the
Government. Like the 1973 Constitution and the 1935 Constitution, the 1987 Constitution affirms the State recognition of
the invaluable role of parents in preparing the youth to become productive members of society. Notably, it places more
importance on the role of parents in the development of their children by recognizing that said role shall be "primary," that
is, that the right of parents in upbringing the youth is superior to that of the State. 252
It is also the inherent right of the State to act as parens patriae to aid parents in the moral development of the youth.
Indeed, the Constitution makes mention of the importance of developing the youth and their important role in nation
building.253 Considering that Section 14 provides not only for the age-appropriate-reproductive health education, but also
for values formation; the development of knowledge and skills in self-protection against discrimination; sexual abuse and
violence against women and children and other forms of gender based violence and teen pregnancy; physical, social and
emotional changes in adolescents; women's rights and children's rights; responsible teenage behavior; gender and
development; and responsible parenthood, and that Rule 10, Section 11.01 of the RH-IRR and Section 4(t) of the RH Law
itself provides for the teaching of responsible teenage behavior, gender sensitivity and physical and emotional changes
among adolescents - the Court finds that the legal mandate provided under the assailed provision supplements, rather
than supplants, the rights and duties of the parents in the moral development of their children.
Furthermore, as Section 14 also mandates that the mandatory reproductive health education program shall be developed
in conjunction with parent-teacher-community associations, school officials and other interest groups, it could very well be
said that it will be in line with the religious beliefs of the petitioners. By imposing such a condition, it becomes apparent
that the petitioners' contention that Section 14 violates Article XV, Section 3(1) of the Constitution is without merit. 254
While the Court notes the possibility that educators might raise their objection to their participation in the reproductive
health education program provided under Section 14 of the RH Law on the ground that the same violates their religious
beliefs, the Court reserves its judgment should an actual case be filed before it.
6 - Due Process
The petitioners contend that the RH Law suffers from vagueness and, thus violates the due process clause of the
Constitution. According to them, Section 23 (a)(l) mentions a "private health service provider" among those who may be
held punishable but does not define who is a "private health care service provider." They argue that confusion further
results since Section 7 only makes reference to a "private health care institution."
The petitioners also point out that Section 7 of the assailed legislation exempts hospitals operated by religious groups
from rendering reproductive health service and modern family planning methods. It is unclear, however, if these
institutions are also exempt from giving reproductive health information under Section 23(a)(l), or from rendering
reproductive health procedures under Section 23(a)(2).
Finally, it is averred that the RH Law punishes the withholding, restricting and providing of incorrect information, but at the
same time fails to define "incorrect information."
The arguments fail to persuade.
A statute or act suffers from the defect of vagueness when it lacks comprehensible standards that men of common
intelligence must necessarily guess its meaning and differ as to its application. It is repugnant to the Constitution in two
respects: (1) it violates due process for failure to accord persons, especially the parties targeted by it, fair notice of the
conduct to avoid; and (2) it leaves law enforcers unbridled discretion in carrying out its provisions and becomes an
arbitrary flexing of the Government muscle.255 Moreover, in determining whether the words used in a statute are vague,
words must not only be taken in accordance with their plain meaning alone, but also in relation to other parts of the
statute. It is a rule that every part of the statute must be interpreted with reference to the context, that is, every part of it
must be construed together with the other parts and kept subservient to the general intent of the whole enactment.256
As correctly noted by the OSG, in determining the definition of "private health care service provider," reference must be
made to Section 4(n) of the RH Law which defines a "public health service provider," viz:
(n) Public health care service provider refers to: (1) public health care institution, which is duly licensed and accredited
and devoted primarily to the maintenance and operation of facilities for health promotion, disease prevention, diagnosis,
treatment and care of individuals suffering from illness, disease, injury, disability or deformity, or in need of obstetrical or
other medical and nursing care; (2) public health care professional, who is a doctor of medicine, a nurse or a midvvife; (3)
public health worker engaged in the delivery of health care services; or (4) barangay health worker who has undergone
training programs under any accredited government and NGO and who voluntarily renders primarily health care services
in the community after having been accredited to function as such by the local health board in accordance with the
guidelines promulgated by the Department of Health (DOH) .
Further, the use of the term "private health care institution" in Section 7 of the law, instead of "private health care service
provider," should not be a cause of confusion for the obvious reason that they are used synonymously.
The Court need not belabor the issue of whether the right to be exempt from being obligated to render reproductive health
service and modem family planning methods, includes exemption from being obligated to give reproductive health
information and to render reproductive health procedures. Clearly, subject to the qualifications and exemptions earlier
discussed, the right to be exempt from being obligated to render reproductive health service and modem family planning
methods, necessarily includes exemption from being obligated to give reproductive health information and to render
reproductive health procedures. The terms "service" and "methods" are broad enough to include the providing of
information and the rendering of medical procedures.
The same can be said with respect to the contention that the RH Law punishes health care service providers who
intentionally withhold, restrict and provide incorrect information regarding reproductive health programs and services. For
ready reference, the assailed provision is hereby quoted as follows:
SEC. 23. Prohibited Acts. - The following acts are prohibited:

(a) Any health care service provider, whether public or private, who shall:
(1) Knowingly withhold information or restrict the dissemination thereof, and/ or intentionally provide incorrect information
regarding programs and services on reproductive health including the right to informed choice and access to a full range
of legal, medically-safe, non-abortifacient and effective family planning methods;
From its plain meaning, the word "incorrect" here denotes failing to agree with a copy or model or with established rules;
inaccurate, faulty; failing to agree with the requirements of duty, morality or propriety; and failing to coincide with the
truth. 257 On the other hand, the word "knowingly" means with awareness or deliberateness that is intentional. 258 Used
together in relation to Section 23(a)(l), they connote a sense of malice and ill motive to mislead or misrepresent the public
as to the nature and effect of programs and services on reproductive health. Public health and safety demand that health
care service providers give their honest and correct medical information in accordance with what is acceptable in medical
practice. While health care service providers are not barred from expressing their own personal opinions regarding the
programs and services on reproductive health, their right must be tempered with the need to provide public health and
safety. The public deserves no less.
7-Egual Protection
The petitioners also claim that the RH Law violates the equal protection clause under the Constitution as it discriminates
against the poor because it makes them the primary target of the government program that promotes contraceptive use .
They argue that, rather than promoting reproductive health among the poor, the RH Law introduces contraceptives that
would effectively reduce the number of the poor. Their bases are the various provisions in the RH Law dealing with the
poor, especially those mentioned in the guiding principles 259 and definition of terms260 of the law.
They add that the exclusion of private educational institutions from the mandatory reproductive health education program
imposed by the RH Law renders it unconstitutional.
In Biraogo v. Philippine Truth Commission,261 the Court had the occasion to expound on the concept of equal protection.
Thus:
One of the basic principles on which this government was founded is that of the equality of right which is embodied in
Section 1, Article III of the 1987 Constitution. The equal protection of the laws is embraced in the concept of due process,
as every unfair discrimination offends the requirements of justice and fair play. It has been embodied in a separate clause,
however, to provide for a more specific guaranty against any form of undue favoritism or hostility from the government.
Arbitrariness in general may be challenged on the basis of the due process clause. But if the particular act assailed
partakes of an unwarranted partiality or prejudice, the sharper weapon to cut it down is the equal protection clause.
"According to a long line of decisions, equal protection simply requires that all persons or things similarly situated should
be treated alike, both as to rights conferred and responsibilities imposed." It "requires public bodies and inst itutions to
treat similarly situated individuals in a similar manner." "The purpose of the equal protection clause is to secure every
person within a state's jurisdiction against intentional and arbitrary discrimination, whether occasioned by the express
terms of a statue or by its improper execution through the state's duly constituted authorities." "In other words, the concept
of equal justice under the law requires the state to govern impartially, and it may not draw distinctions between individuals
solely on differences that are irrelevant to a legitimate governmental objective."
The equal protection clause is aimed at all official state actions, not just those of the legislature. Its inhibitions cover all the
departments of the government including the political and executive departments, and extend to all actions of a state
denying equal protection of the laws, through whatever agency or whatever guise is taken.
It, however, does not require the universal application of the laws to all persons or things without distinction. What it
simply requires is equality among equals as determined according to a valid classification. Indeed, the equal protection
clause permits classification. Such classification, however, to be valid must pass the test of reasonableness. The test has
four requisites: (1) The classification rests on substantial distinctions; (2) It is germane to the purpose of the law; (3) It is
not limited to existing conditions only; and (4) It applies equally to all members of the same class. "Superficial differences
do not make for a valid classification."
For a classification to meet the requirements of constitutionality, it must include or embrace all persons who naturally
belong to the class. "The classification will be regarded as invalid if all the members of the class are not similarly treated,
both as to rights conferred and obligations imposed. It is not necessary that the classification be made with absolute
symmetry, in the sense that the members of the class should possess the same characteristics in equal degree.
Substantial similarity will suffice; and as long as this is achieved, all those covered by the classification are to be treated
equally. The mere fact that an individual belonging to a class differs from the other members, as long as that class is
substantially distinguishable from all others, does not justify the non-application of the law to him."
The classification must not be based on existing circumstances only, or so constituted as to preclude addition to the
number included in the class. It must be of such a nature as to embrace all those who may thereafter be in similar
circumstances and conditions. It must not leave out or "underinclude" those that should otherwise fall into a certain
classification. [Emphases supplied; citations excluded]
To provide that the poor are to be given priority in the government's reproductive health care program is not a violation of
the equal protection clause. In fact, it is pursuant to Section 11, Article XIII of the Constitution which recognizes the
distinct necessity to address the needs of the underprivileged by providing that they be given priority in addressing the
health development of the people. Thus:
Section 11. The State shall adopt an integrated and comprehensive approach to health development which shall
endeavor to make essential goods, health and other social services available to all the people at affordable cost. There
shall be priority for the needs of the underprivileged, sick, elderly, disabled, women, and children. The State shall
endeavor to provide free medical care to paupers.
It should be noted that Section 7 of the RH Law prioritizes poor and marginalized couples who are suffering from fertility
issues and desire to have children. There is, therefore, no merit to the contention that the RH Law only seeks to target the
poor to reduce their number. While the RH Law admits the use of contraceptives, it does not, as elucidated above,
sanction abortion. As Section 3(1) explains, the "promotion and/or stabilization of the population growth rate is incidental
to the advancement of reproductive health."
Moreover, the RH Law does not prescribe the number of children a couple may have and does not impose conditions
upon couples who intend to have children. While the petitioners surmise that the assailed law seeks to charge couples
with the duty to have children only if they would raise them in a truly humane way, a deeper look into its provisions shows
that what the law seeks to do is to simply provide priority to the poor in the implementation of government programs to
promote basic reproductive health care.
With respect to the exclusion of private educational institutions from the mandatory reproductive health education program
under Section 14, suffice it to state that the mere fact that the children of those who are less fortunate attend public
educational institutions does not amount to substantial distinction sufficient to annul the assailed provision. On the other
hand, substantial distinction rests between public educational institutions and private educational institutions, particularly
because there is a need to recognize the academic freedom of private educational institutions especially with respect to
religious instruction and to consider their sensitivity towards the teaching of reproductive health education.
8-Involuntary Servitude
The petitioners also aver that the RH Law is constitutionally infirm as it violates the constitutional prohibition against
involuntary servitude. They posit that Section 17 of the assailed legislation requiring private and non-government health
care service providers to render forty-eight (48) hours of pro bono reproductive health services, actually amounts to
involuntary servitude because it requires medical practitioners to perform acts against their will. 262
The OSG counters that the rendition of pro bono services envisioned in Section 17 can hardly be considered as forced
labor analogous to slavery, as reproductive health care service providers have the discretion as to the manner and time of
giving pro bono services. Moreover, the OSG points out that the imposition is within the powers of the government, the
accreditation of medical practitioners with PhilHealth being a privilege and not a right.
The point of the OSG is well-taken.
It should first be mentioned that the practice of medicine is undeniably imbued with public interest that it is both a power
and a duty of the State to control and regulate it in order to protect and promote the public welfare. Like the legal
profession, the practice of medicine is not a right but a privileged burdened with conditions as it directly involves the very
lives of the people. A fortiori, this power includes the power of Congress 263 to prescribe the qualifications for the practice
of professions or trades which affect the public welfare, the public health, the public morals, and the public safety; and to
regulate or control such professions or trades, even to the point of revoking such right altogether. 264
Moreover, as some petitioners put it, the notion of involuntary servitude connotes the presence of force, threats,
intimidation or other similar means of coercion and compulsion.265 A reading of the assailed provision, however, reveals
that it only encourages private and nongovernment reproductive healthcare service providers to render pro bono service.
Other than non-accreditation with PhilHealth, no penalty is imposed should they choose to do otherwise. Private and non-
government reproductive healthcare service providers also enjoy the liberty to choose which kind of health service they
wish to provide, when, where and how to provide it or whether to provide it all. Clearly, therefore, no compulsion, force or
threat is made upon them to render pro bono service against their will. While the rendering of such service was made a
prerequisite to accreditation with PhilHealth, the Court does not consider the same to be an unreasonable burden, but
rather, a necessary incentive imposed by Congress in the furtherance of a perceived legitimate state interest.
Consistent with what the Court had earlier discussed, however, it should be emphasized that conscientious objectors are
exempt from this provision as long as their religious beliefs and convictions do not allow them to render reproductive
health service, pro bona or otherwise.
9-Delegation of Authority to the FDA
The petitioners likewise question the delegation by Congress to the FDA of the power to determine whether or not a
supply or product is to be included in the Essential Drugs List (EDL).266
The Court finds nothing wrong with the delegation. The FDA does not only have the power but also the competency to
evaluate, register and cover health services and methods. It is the only government entity empowered to render such
services and highly proficient to do so. It should be understood that health services and methods fall under the gamut of
terms that are associated with what is ordinarily understood as "health products."
In this connection, Section 4 of R.A. No. 3 720, as amended by R.A. No. 9711 reads:
SEC. 4. To carry out the provisions of this Act, there is hereby created an office to be called the Food and Drug
Administration (FDA) in the Department of Health (DOH). Said Administration shall be under the Office of the Secretary
and shall have the following functions, powers and duties:
"(a) To administer the effective implementation of this Act and of the rules and regulations issued pursuant to the
same;
"(b) To assume primary jurisdiction in the collection of samples of health products;
"(c) To analyze and inspect health products in connection with the implementation of this Act;
"(d) To establish analytical data to serve as basis for the preparation of health products standards, and to
recommend standards of identity, purity, safety, efficacy, quality and fill of container;
"(e) To issue certificates of compliance with technical requirements to serve as basis for the issuance of
appropriate authorization and spot-check for compliance with regulations regarding operation of manufacturers,
importers, exporters, distributors, wholesalers, drug outlets, and other establishments and facilities of health
products, as determined by the FDA;
"x x x
"(h) To conduct appropriate tests on all applicable health products prior to the issuance of appropriate
authorizations to ensure safety, efficacy, purity, and quality;
"(i) To require all manufacturers, traders, distributors, importers, exporters, wholesalers, retailers, consumers, and
non-consumer users of health products to report to the FDA any incident that reasonably indicates that said
product has caused or contributed to the death, serious illness or serious injury to a consumer, a patient, or any
person;
"(j) To issue cease and desist orders motu propio or upon verified complaint for health products, whether or not
registered with the FDA Provided, That for registered health products, the cease and desist order is valid for thirty
(30) days and may be extended for sixty ( 60) days only after due process has been observed;
"(k) After due process, to order the ban, recall, and/or withdrawal of any health product found to have caused
death, serious illness or serious injury to a consumer or patient, or is found to be imminently injurious, unsafe,
dangerous, or grossly deceptive, and to require all concerned to implement the risk management plan which is a
requirement for the issuance of the appropriate authorization;
x x x.
As can be gleaned from the above, the functions, powers and duties of the FDA are specific to enable the agency to carry
out the mandates of the law. Being the country's premiere and sole agency that ensures the safety of food and medicines
available to the public, the FDA was equipped with the necessary powers and functions to make it effective. Pursuant to
the principle of necessary implication, the mandate by Congress to the FDA to ensure public health and safety by
permitting only food and medicines that are safe includes "service" and "methods." From the declared policy of the RH
Law, it is clear that Congress intended that the public be given only those medicines that are proven medically safe, legal,
non-abortifacient, and effective in accordance with scientific and evidence-based medical research standards. The
philosophy behind the permitted delegation was explained in Echagaray v. Secretary of Justice, 267 as follows:
The reason is the increasing complexity of the task of the government and the growing inability of the legislature to cope
directly with the many problems demanding its attention. The growth of society has ramified its activities and created
peculiar and sophisticated problems that the legislature cannot be expected reasonably to comprehend. Specialization
even in legislation has become necessary. To many of the problems attendant upon present day undertakings, the
legislature may not have the competence, let alone the interest and the time, to provide the required direct and
efficacious, not to say specific solutions.
10- Autonomy of Local Governments and the Autonomous Region
of Muslim Mindanao (ARMM)
As for the autonomy of local governments, the petitioners claim that the RH Law infringes upon the powers devolved to
local government units (LGUs) under Section 17 of the Local Government Code. Said Section 17 vested upon the LGUs
the duties and functions pertaining to the delivery of basic services and facilities, as follows:
SECTION 17. Basic Services and Facilities. –
(a) Local government units shall endeavor to be self-reliant and shall continue exercising the powers and
discharging the duties and functions currently vested upon them. They shall also discharge the functions and
responsibilities of national agencies and offices devolved to them pursuant to this Code. Local government units
shall likewise exercise such other powers and discharge such other functions and responsibilities as are
necessary, appropriate, or incidental to efficient and effective provision of the basic services and facilities
enumerated herein.
(b) Such basic services and facilities include, but are not limited to, x x x.
While the aforementioned provision charges the LGUs to take on the functions and responsibilities that have
already been devolved upon them from the national agencies on the aspect of providing for basic services and
facilities in their respective jurisdictions, paragraph (c) of the same provision provides a categorical exception of
cases involving nationally-funded projects, facilities, programs and services.268 Thus:
(c) Notwithstanding the provisions of subsection (b) hereof, public works and infrastructure projects and other
facilities, programs and services funded by the National Government under the annual General Appropriations
Act, other special laws, pertinent executive orders, and those wholly or partially funded from foreign sources, are
not covered under this Section, except in those cases where the local government unit concerned is duly
designated as the implementing agency for such projects, facilities, programs and services. [Emphases supplied]
The essence of this express reservation of power by the national government is that, unless an LGU is particularly
designated as the implementing agency, it has no power over a program for which funding has been provided by the
national government under the annual general appropriations act, even if the program involves the delivery of basic
services within the jurisdiction of the LGU.269 A complete relinquishment of central government powers on the matter of
providing basic facilities and services cannot be implied as the Local Government Code itself weighs against it. 270
In this case, a reading of the RH Law clearly shows that whether it pertains to the establishment of health care
facilities,271 the hiring of skilled health professionals,272 or the training of barangay health workers,273 it will be the national
government that will provide for the funding of its implementation. Local autonomy is not absolute. The national
government still has the say when it comes to national priority programs which the local government is called upon to
implement like the RH Law.
Moreover, from the use of the word "endeavor," the LG Us are merely encouraged to provide these services. There is
nothing in the wording of the law which can be construed as making the availability of these services mandatory for the
LGUs. For said reason, it cannot be said that the RH Law amounts to an undue encroachment by the national government
upon the autonomy enjoyed by the local governments.
The ARMM
The fact that the RH Law does not intrude in the autonomy of local governments can be equally applied to the ARMM.
The RH Law does not infringe upon its autonomy. Moreover, Article III, Sections 6, 10 and 11 of R.A. No. 9054, or the
organic act of the ARMM, alluded to by petitioner Tillah to justify the exemption of the operation of the RH Law in the
autonomous region, refer to the policy statements for the guidance of the regional government. These provisions relied
upon by the petitioners simply delineate the powers that may be exercised by the regional government, which can, in no
manner, be characterized as an abdication by the State of its power to enact legislation that would benefit the general
welfare. After all, despite the veritable autonomy granted the ARMM, the Constitution and the supporting jurisprudence, as
they now stand, reject the notion of imperium et imperio in the relationship between the national and the regional
governments.274 Except for the express and implied limitations imposed on it by the Constitution, Congress cannot be
restricted to exercise its inherent and plenary power to legislate on all subjects which extends to all matters of general
concern or common interest.275
11 - Natural Law
With respect to the argument that the RH Law violates natural law,276 suffice it to say that the Court does not duly
recognize it as a legal basis for upholding or invalidating a law. Our only guidepost is the Constitution. While every law
enacted by man emanated from what is perceived as natural law, the Court is not obliged to see if a statute, executive
issuance or ordinance is in conformity to it. To begin with, it is not enacted by an acceptable legitimate body. Moreover,
natural laws are mere thoughts and notions on inherent rights espoused by theorists, philosophers and theologists. The
jurists of the philosophical school are interested in the law as an abstraction, rather than in the actual law of the past or
present.277 Unless, a natural right has been transformed into a written law, it cannot serve as a basis to strike down a law.
In Republic v. Sandiganbayan,278 the very case cited by the petitioners, it was explained that the Court is not duty-bound
to examine every law or action and whether it conforms with both the Constitution and natural law. Rather, natural law is
to be used sparingly only in the most peculiar of circumstances involving rights inherent to man where no law is
applicable.279
At any rate, as earlier expounded, the RH Law does not sanction the taking away of life. It does not allow abortion in any
shape or form. It only seeks to enhance the population control program of the government by providing information and
making non-abortifacient contraceptives more readily available to the public, especially to the poor.
Facts and Fallacies
and the Wisdom of the Law
In general, the Court does not find the RH Law as unconstitutional insofar as it seeks to provide access to medically-safe,
non-abortifacient, effective, legal, affordable, and quality reproductive healthcare services, methods, devices, and
supplies. As earlier pointed out, however, the religious freedom of some sectors of society cannot be trampled upon in
pursuit of what the law hopes to achieve. After all, the Constitutional safeguard to religious freedom is a recognition that
man stands accountable to an authority higher than the State.
In conformity with the principle of separation of Church and State, one religious group cannot be allowed to impose its
beliefs on the rest of the society. Philippine modem society leaves enough room for diversity and pluralism. As such,
everyone should be tolerant and open-minded so that peace and harmony may continue to reign as we exist alongside
each other.
As healthful as the intention of the RH Law may be, the idea does not escape the Court that what it seeks to address is
the problem of rising poverty and unemployment in the country. Let it be said that the cause of these perennial issues is
not the large population but the unequal distribution of wealth. Even if population growth is controlled, poverty will remain
as long as the country's wealth remains in the hands of the very few.
At any rate, population control may not be beneficial for the country in the long run. The European and Asian countries,
which embarked on such a program generations ago , are now burdened with ageing populations. The number of their
young workers is dwindling with adverse effects on their economy. These young workers represent a significant human
capital which could have helped them invigorate, innovate and fuel their economy. These countries are now trying to
reverse their programs, but they are still struggling. For one, Singapore, even with incentives, is failing.
And in this country, the economy is being propped up by remittances from our Overseas Filipino Workers. This is because
we have an ample supply of young able-bodied workers. What would happen if the country would be weighed down by an
ageing population and the fewer younger generation would not be able to support them? This would be the situation when
our total fertility rate would go down below the replacement level of two (2) children per woman. 280
Indeed, at the present, the country has a population problem, but the State should not use coercive measures (like the
penal provisions of the RH Law against conscientious objectors) to solve it. Nonetheless, the policy of the Court is non-
interference in the wisdom of a law.
x x x. But this Court cannot go beyond what the legislature has laid down. Its duty is to say what the law is as enacted by
the lawmaking body. That is not the same as saying what the law should be or what is the correct rule in a given set of
circumstances. It is not the province of the judiciary to look into the wisdom of the law nor to question the policies adopted
by the legislative branch. Nor is it the business of this Tribunal to remedy every unjust situation that may arise from the
application of a particular law. It is for the legislature to enact remedial legislation if that would be necessary in the
premises. But as always, with apt judicial caution and cold neutrality, the Court must carry out the delicate function of
interpreting the law, guided by the Constitution and existing legislation and mindful of settled jurisprudence. The Court's
function is therefore limited, and accordingly, must confine itself to the judicial task of saying what the law is, as enacted
by the lawmaking body.281
Be that as it may, it bears reiterating that the RH Law is a mere compilation and enhancement of the prior existing
contraceptive and reproductive health laws, but with coercive measures. Even if the Court decrees the RH Law as entirely
unconstitutional, there will still be the Population Act (R.A. No. 6365), the Contraceptive Act (R.A. No. 4729) and the
reproductive health for women or The Magna Carta of Women (R.A. No. 9710), sans the coercive provisions of the
assailed legislation. All the same, the principle of "no-abortion" and "non-coercion" in the adoption of any family planning
method should be maintained.
WHEREFORE, the petitions are PARTIALLY GRANTED. Accordingly, the Court declares R.A. No. 10354 as NOT
UNCONSTITUTIONAL except with respect to the following provisions which are declared UNCONSTITUTIONAL:
1) Section 7 and the corresponding provision in the RH-IRR insofar as they: a) require private health facilities and
non-maternity specialty hospitals and hospitals owned and operated by a religious group to refer patients, not in
an emergency or life-threatening case, as defined under Republic Act No. 8344, to another health facility which is
conveniently accessible; and b) allow minor-parents or minors who have suffered a miscarriage access to modem
methods of family planning without written consent from their parents or guardian/s;
2) Section 23(a)(l) and the corresponding provision in the RH-IRR, particularly Section 5 .24 thereof, insofar as
they punish any healthcare service provider who fails and or refuses to disseminate information regarding
programs and services on reproductive health regardless of his or her religious beliefs.
3) Section 23(a)(2)(i) and the corresponding provision in the RH-IRR insofar as they allow a married individual,
not in an emergency or life-threatening case, as defined under Republic Act No. 8344, to undergo reproductive
health procedures without the consent of the spouse;
4) Section 23(a)(2)(ii) and the corresponding provision in the RH-IRR insofar as they limit the requirement of
parental consent only to elective surgical procedures.
5) Section 23(a)(3) and the corresponding provision in the RH-IRR, particularly Section 5.24 thereof, insofar as
they punish any healthcare service provider who fails and/or refuses to refer a patient not in an emergency or life-
threatening case, as defined under Republic Act No. 8344, to another health care service provider within the
same facility or one which is conveniently accessible regardless of his or her religious beliefs;
6) Section 23(b) and the corresponding provision in the RH-IRR, particularly Section 5 .24 thereof, insofar as they
punish any public officer who refuses to support reproductive health programs or shall do any act that hinders the
full implementation of a reproductive health program, regardless of his or her religious beliefs;
7) Section 17 and the corresponding prov1s10n in the RH-IRR regarding the rendering of pro bona reproductive
health service in so far as they affect the conscientious objector in securing PhilHealth accreditation; and
8) Section 3.0l(a) and Section 3.01 G) of the RH-IRR, which added the qualifier "primarily" in defining
abortifacients and contraceptives, as they are ultra vires and, therefore, null and void for contravening Section
4(a) of the RH Law and violating Section 12, Article II of the Constitution.
The Status Quo Ante Order issued by the Court on March 19, 2013 as extended by its Order, dated July 16, 2013 , is
hereby LIFTED, insofar as the provisions of R.A. No. 10354 which have been herein declared as constitutional.
SO ORDERED.
JOSE CATRAL MENDOZA

Associate Justice
WE CONCUR:
Tingnan ang aking opinyong

Sumasang-ayon at Sumasalungat
Chief Justice
See Concurring Opinion

PRESBITERO J. VELASCO, JR.
ANTONIO T. CARPIO
Associate Justice
Associate Justice
With Separate concurring opinion See: Separate Concurring Opinion

TERESITA J. LEONARDO-DE CASTRO ARTURO D. BRION
DIOSDADO M. PERALTA LUCAS P. BERSAMIN

See Concurring and dissenting See Concurring Opinion

MARIANO C. DEL CASTILLO ROBERTO A. ABAD
MARTIN S. VILLARAMA, JR. JOSE PORTUGAL PEREZ

See concurring and dissenting See Concurring and Dissenting Opinion

BIENVENIDO L. REYES ESTELA M. PERLAS-BERNABE
See Separate dissent

MARVIC MARIO VICTOR F. LEONEN
Associate Justice
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, I hereby certify that the conclusions in the above Decision had
been reached in consultation before the case was assigned to the writer of the opinion of the Court.
Chief Justice

SUPREME COURT
Manila
EN BANC
G.R. No. 88211 September 15, 1989
FERDINAND E. MARCOS, IMELDA R. MARCOS, FERDINAND R. MARCOS, JR., IRENE M. ARANETA, IMEE
MANOTOC, TOMAS MANOTOC, GREGORIO ARANETA, PACIFICO E. MARCOS, NICANOR YÑIGUEZ and
PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), represented by its President, CONRADO F.
ESTRELLA, petitioners,
vs.
HONORABLE RAUL MANGLAPUS, CATALINO MACARAIG, SEDFREY ORDOÑEZ, MIRIAM DEFENSOR
SANTIAGO, FIDEL RAMOS, RENATO DE VILLA, in their capacity as Secretary of Foreign Affairs, Executive
Secretary, Secretary of Justice, Immigration Commissioner, Secretary of National Defense and Chief of Staff,
respectively, respondents.
CORTES, J.:
Before the Court is a contreversy of grave national importance. While ostensibly only legal issues are involved, the Court's
decision in this case would undeniably have a profound effect on the political, economic and other aspects of national life.
We recall that in February 1986, Ferdinand E. Marcos was deposed from the presidency via the non-violent "people
power" revolution and forced into exile. In his stead, Corazon C. Aquino was declared President of the Republic under a
revolutionary government. Her ascension to and consilidation of power have not been unchallenged. The failed Manila
Hotel coup in 1986 led by political leaders of Mr. Marcos, the takeover of television station Channel 7 by rebel troops led
by Col. Canlas with the support of "Marcos loyalists" and the unseccessful plot of the Marcos spouses to surreptitiously
return from Hawii with mercenaries aboard an aircraft chartered by a Lebanese arms dealer [Manila Bulletin, January 30,
1987] awakened the nation to the capacity of the Marcoses to stir trouble even from afar and to the fanaticism and blind
loyalty of their followers in the country. The ratification of the 1987 Constitution enshrined the victory of "people power"
and also clearly reinforced the constitutional moorings of Mrs. Aquino's presidency. This did not, however, stop bloody
challenges to the government. On August 28, 1987, Col. Gregorio Honasan, one of the major players in the February
Revolution, led a failed coup that left scores of people, both combatants and civilians, dead. There were several other
armed sorties of lesser significance, but the message they conveyed was the same — a split in the ranks of the military
establishment that thraetened civilian supremacy over military and brought to the fore the realization that civilian
government could be at the mercy of a fractious military.
But the armed threats to the Government were not only found in misguided elements and among rabid followers of Mr.
Marcos. There are also the communist insurgency and the seccessionist movement in Mindanao which gained ground
during the rule of Mr. Marcos, to the extent that the communists have set up a parallel government of their own on the
areas they effectively control while the separatist are virtually free to move about in armed bands. There has been no let
up on this groups' determination to wrest power from the govermnent. Not only through resort to arms but also to through
the use of propaganda have they been successful in dreating chaos and destabilizing the country.
Nor are the woes of the Republic purely political. The accumulated foreign debt and the plunder of the nation attributed to
Mr. Marcos and his cronies left the economy devastated. The efforts at economic recovery, three years after Mrs. Aquino
assumed office, have yet to show concrete results in alleviating the poverty of the masses, while the recovery of the ill-
gotten wealth of the Marcoses has remained elusive.
Now, Mr. Marcos, in his deathbed, has signified his wish to return to the Philipppines to die. But Mrs. Aquino, considering
the dire consequences to the nation of his return at a time when the stability of government is threatened from various
directions and the economy is just beginning to rise and move forward, has stood firmly on the decision to bar the return
of Mr. Marcos and his family.
The Petition
This case is unique. It should not create a precedent, for the case of a dictator forced out of office and into exile after
causing twenty years of political, economic and social havoc in the country and who within the short space of three years
seeks to return, is in a class by itself.
This petition for mandamus and prohibition asks the Courts to order the respondents to issue travel documents to Mr.
Marcos and the immediate members of his family and to enjoin the implementation of the President's decision to bar their
return to the Philippines.
The Issue
Th issue is basically one of power: whether or not, in the exercise of the powers granted by the Constitution, the President
may prohibit the Marcoses from returning to the Philippines.
According to the petitioners, the resolution of the case would depend on the resolution of the following issues:
1. Does the President have the power to bar the return of former President Marcos and family to the
Philippines?
a. Is this a political question?
2. Assuming that the President has the power to bar former President Marcos and his family from
returning to the Philippines, in the interest of "national security, public safety or public health
a. Has the President made a finding that the return of former President Marcos and his family to the
Philippines is a clear and present danger to national security, public safety or public health?
b. Assuming that she has made that finding
(1) Have the requirements of due process been complied with in making such finding?
(2) Has there been prior notice to petitioners?
(3) Has there been a hearing?

(4) Assuming that notice and hearing may be dispensed with, has the President's
decision, including the grounds upon which it was based, been made known to
petitioners so that they may controvert the same?
c. Is the President's determination that the return of former President Marcos and his family to the
Philippines is a clear and present danger to national security, public safety, or public health a political
question?
d. Assuming that the Court may inquire as to whether the return of former President Marcos and his
family is a clear and present danger to national security, public safety, or public health, have respondents
established such fact?
3. Have the respondents, therefore, in implementing the President's decision to bar the return of former
President Marcos and his family, acted and would be acting without jurisdiction, or in excess of
jurisdiction, or with grave abuse of discretion, in performing any act which would effectively bar the return
of former President Marcos and his family to the Philippines? [Memorandum for Petitioners, pp. 5-7;
Rollo, pp. 234-236.1
The case for petitioners is founded on the assertion that the right of the Marcoses to return to the Philippines is
guaranteed under the following provisions of the Bill of Rights, to wit:
Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any
person be denied the equal protection of the laws.
xxx xxx xxx
Section 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be
impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the
interest of national security, public safety, or public health, as may be provided by law.
The petitioners contend that the President is without power to impair the liberty of abode of the Marcoses because only a
court may do so "within the limits prescribed by law." Nor may the President impair their right to travel because no law has
authorized her to do so. They advance the view that before the right to travel may be impaired by any authority or agency
of the government, there must be legislation to that effect.
The petitioners further assert that under international law, the right of Mr. Marcos and his family to return to the Philippines
is guaranteed.
The Universal Declaration of Human Rights provides:
Article 13. (1) Everyone has the right to freedom of movement and residence within the borders of each
state.
(2) Everyone has the right to leave any country, including his own, and to return to his country.
Likewise, the International Covenant on Civil and Political Rights, which had been ratified by the Philippines, provides:
Article 12
1) Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of
movement and freedom to choose his residence.
2) Everyone shall be free to leave any country, including his own.
3) The above-mentioned rights shall not be subject to any restrictions except those which are provided by
law, are necessary to protect national security, public order (order public), public health or morals or the
rights and freedoms of others, and are consistent with the other rights recognized in the present
Covenant.
4) No one shall be arbitrarily deprived of the right to enter his own country.
On the other hand, the respondents' principal argument is that the issue in this case involves a political question which is
non-justiciable. According to the Solicitor General:
As petitioners couch it, the question involved is simply whether or not petitioners Ferdinand E. Marcos
and his family have the right to travel and liberty of abode. Petitioners invoke these constitutional rights in
vacuo without reference to attendant circumstances.
Respondents submit that in its proper formulation, the issue is whether or not petitioners Ferdinand E.
Marcos and family have the right to return to the Philippines and reside here at this time in the face of the
determination by the President that such return and residence will endanger national security and public
safety.
It may be conceded that as formulated by petitioners, the question is not a political question as it involves
merely a determination of what the law provides on the matter and application thereof to petitioners
Ferdinand E. Marcos and family. But when the question is whether the two rights claimed by petitioners
Ferdinand E. Marcos and family impinge on or collide with the more primordial and transcendental right of
the State to security and safety of its nationals, the question becomes political and this Honorable Court
can not consider it.
There are thus gradations to the question, to wit:
Do petitioners Ferdinand E. Marcos and family have the right to return to the Philippines and reestablish
their residence here? This is clearly a justiciable question which this Honorable Court can decide.
Do petitioners Ferdinand E. Marcos and family have their right to return to the Philippines and reestablish
their residence here even if their return and residence here will endanger national security and public
safety? this is still a justiciable question which this Honorable Court can decide.
Is there danger to national security and public safety if petitioners Ferdinand E. Marcos and family shall
return to the Philippines and establish their residence here? This is now a political question which this
Honorable Court can not decide for it falls within the exclusive authority and competence of the President
of the Philippines. [Memorandum for Respondents, pp. 9-11; Rollo, pp. 297-299.]
Respondents argue for the primacy of the right of the State to national security over individual rights. In support thereof,
they cite Article II of the Constitution, to wit:
Section 4. The prime duty of the Government is to serve and protect the people. The Government may
call upon the people to defend the State and, in the fulfillment thereof, all citizens may be required, under
conditions provided by law, to render personal, military, or civil service.
Section 5. The maintenance of peace and order, the protection of life, liberty, and property, and the
promotion of the general welfare are essential for the enjoyment by all the people of the blessings of
democracy.
Respondents also point out that the decision to ban Mr. Marcos and family from returning to the Philippines for reasons of
national security and public safety has international precedents. Rafael Trujillo of the Dominican Republic, Anastacio
Somoza Jr. of Nicaragua, Jorge Ubico of Guatemala, Fulgencio batista of Cuba, King Farouk of Egypt, Maximiliano
Hernandez Martinez of El Salvador, and Marcos Perez Jimenez of Venezuela were among the deposed dictators whose
return to their homelands was prevented by their governments. [See Statement of Foreign Affairs Secretary Raul S.
Manglapus, quoted in Memorandum for Respondents, pp. 26-32; Rollo, pp. 314-319.]
The parties are in agreement that the underlying issue is one of the scope of presidential power and its limits. We,
however, view this issue in a different light. Although we give due weight to the parties' formulation of the issues, we are
not bound by its narrow confines in arriving at a solution to the controversy.
At the outset, we must state that it would not do to view the case within the confines of the right to travel and the import of
the decisions of the U.S. Supreme Court in the leading cases of Kent v. Dulles [357 U.S. 116, 78 SCt 1113, 2 L Ed. 2d
1204] and Haig v. Agee [453 U.S. 280, 101 SCt 2766, 69 L Ed. 2d 640) which affirmed the right to travel and recognized
exceptions to the exercise thereof, respectively.
It must be emphasized that the individual right involved is not the right to travel from the Philippines to other countries or
within the Philippines. These are what the right to travel would normally connote. Essentially, the right involved is the right
to return to one's country, a totally distinct right under international law, independent from although related to the right to
travel. Thus, the Universal Declaration of Humans Rights and the International Covenant on Civil and Political Rights treat
the right to freedom of movement and abode within the territory of a state, the right to leave a country, and the right to
enter one's country as separate and distinct rights. The Declaration speaks of the "right to freedom of movement and
residence within the borders of each state" [Art. 13(l)] separately from the "right to leave any country, including his own,
and to return to his country." [Art. 13(2).] On the other hand, the Covenant guarantees the "right to liberty of movement
and freedom to choose his residence" [Art. 12(l)] and the right to "be free to leave any country, including his own." [Art.
12(2)] which rights may be restricted by such laws as "are necessary to protect national security, public order, public
health or morals or enter qqqs own country" of which one cannot be "arbitrarily deprived." [Art. 12(4).] It would therefore
be inappropriate to construe the limitations to the right to return to one's country in the same context as those pertaining to
the liberty of abode and the right to travel.
The right to return to one's country is not among the rights specifically guaranteed in the Bill of Rights, which treats only of
the liberty of abode and the right to travel, but it is our well-considered view that the right to return may be considered, as
a generally accepted principle of international law and, under our Constitution, is part of the law of the land [Art. II, Sec. 2
of the Constitution.] However, it is distinct and separate from the right to travel and enjoys a different protection under the
International Covenant of Civil and Political Rights, i.e., against being "arbitrarily deprived" thereof [Art. 12 (4).]
Thus, the rulings in the cases Kent and Haig which refer to the issuance of passports for the purpose of effectively
exercising the right to travel are not determinative of this case and are only tangentially material insofar as they relate to a
conflict between executive action and the exercise of a protected right. The issue before the Court is novel and without
precedent in Philippine, and even in American jurisprudence.
Consequently, resolution by the Court of the well-debated issue of whether or not there can be limitations on the right to
travel in the absence of legislation to that effect is rendered unnecessary. An appropriate case for its resolution will have
to be awaited.
Having clarified the substance of the legal issue, we find now a need to explain the methodology for its resolution. Our
resolution of the issue will involve a two-tiered approach. We shall first resolve whether or not the President has the power
under the Constitution, to bar the Marcoses from returning to the Philippines. Then, we shall determine, pursuant to the
express power of the Court under the Constitution in Article VIII, Section 1, whether or not the President acted arbitrarily
or with grave abuse of discretion amounting to lack or excess of jurisdiction when she determined that the return of the
Marcose's to the Philippines poses a serious threat to national interest and welfare and decided to bar their return.
Executive Power
The 1987 Constitution has fully restored the separation of powers of the three great branches of government. To recall the
words of Justice Laurel in Angara v. Electoral Commission [63 Phil. 139 (1936)], "the Constitution has blocked but with
deft strokes and in bold lines, allotment of power to the executive, the legislative and the judicial departments of the
government." [At 157.1 Thus, the 1987 Constitution explicitly provides that "[the legislative power shall be vested in the
Congress of the Philippines" Art VI, Sec. 11, "[t]he executive power shall bevested in the President of the Philippines" [Art.
VII, Sec. 11, and "[te judicial power shall be vested in one Supreme Court and in such lower courts as may be established
by law" [Art. VIII, Sec. 1.] These provisions not only establish a separation of powers by actual division [Angara v.
Electoral Commission, supra] but also confer plenary legislative, executive and judicial powers subject only to limitations
provided in the Constitution. For as the Supreme Court in Ocampo v. Cabangis [15 Phil. 626 (1910)] pointed out "a grant
of the legislative power means a grant of all legislative power; and a grant of the judicial power means a grant of all the
judicial power which may be exercised under the government." [At 631-632.1 If this can be said of the legislative power
which is exercised by two chambers with a combined membership of more than two hundred members and of the judicial
power which is vested in a hierarchy of courts, it can equally be said of the executive power which is vested in one official
the President.
As stated above, the Constitution provides that "[t]he executive power shall be vested in the President of the Philippines."
[Art. VII, Sec. 1]. However, it does not define what is meant by executive power" although in the same article it touches on
the exercise of certain powers by the President, i.e., the power of control over all executive departments, bureaus and
offices, the power to execute the laws, the appointing power, the powers under the commander-in-chief clause, the power
to grant reprieves, commutations and pardons, the power to grant amnesty with the concurrence of Congress, the power
to contract or guarantee foreign loans, the power to enter into treaties or international agreements, the power to submit
the budget to Congress, and the power to address Congress [Art. VII, Sec. 14-23].
The inevitable question then arises: by enumerating certain powers of the President did the framers of the Constitution
intend that the President shall exercise those specific powers and no other? Are these se enumerated powers the breadth
and scope of "executive power"? Petitioners advance the view that the President's powers are limited to those specifically
enumerated in the 1987 Constitution. Thus, they assert: "The President has enumerated powers, and what is not
enumerated is impliedly denied to her. Inclusion unius est exclusio alterius[Memorandum for Petitioners, p. 4- Rollo p.
233.1 This argument brings to mind the institution of the U.S. Presidency after which ours is legally patterned.**
Corwin, in his monumental volume on the President of the United States grappled with the same problem. He said:
Article II is the most loosely drawn chapter of the Constitution. To those who think that a constitution
ought to settle everything beforehand it should be a nightmare; by the same token, to those who think that
constitution makers ought to leave considerable leeway for the future play of political forces, it should be
a vision realized.
We encounter this characteristic of Article 11 in its opening words: "The executive power shall be vested
in a President of the United States of America." . . .. [The President: Office and Powers, 17871957, pp. 3-
4.]
Reviewing how the powers of the U.S. President were exercised by the different persons who held the office from
Washington to the early 1900's, and the swing from the presidency by commission to Lincoln's dictatorship, he concluded
that "what the presidency is at any particular moment depends in important measure on who is President." [At 30.]
This view is shared by Schlesinger who wrote in The Imperial Presidency:
For the American Presidency was a peculiarly personal institution. it remained of course, an agency of
government subject to unvarying demands and duties no remained, of cas President. But, more than
most agencies of government, it changed shape, intensity and ethos according to the man in charge.
Each President's distinctive temperament and character, his values, standards, style, his habits,
expectations, Idiosyncrasies, compulsions, phobias recast the WhiteHouse and pervaded the entire
government. The executive branch, said Clark Clifford, was a chameleon, taking its color from the
character and personality of the President. The thrust of the office, its impact on the constitutional order,
therefore altered from President to President. Above all, the way each President understood it as his
personal obligation to inform and involve the Congress, to earn and hold the confidence of the electorate
and to render an accounting to the nation and posterity determined whether he strengthened or
weakened the constitutional order. [At 212- 213.]
We do not say that the presidency is what Mrs. Aquino says it is or what she does but, rather, that the consideration of
tradition and the development of presidential power under the different constitutions are essential for a complete
understanding of the extent of and limitations to the President's powers under the 1987 Constitution. The 1935
Constitution created a strong President with explicitly broader powers than the U.S. President. The 1973 Constitution
attempted to modify the system of government into the parliamentary type, with the President as a mere figurehead, but
through numerous amendments, the President became even more powerful, to the point that he was also the de facto
Legislature. The 1987 Constitution, however, brought back the presidential system of government and restored the
separation of legislative, executive and judicial powers by their actual distribution among three distinct branches of
government with provision for checks and balances.
It would not be accurate, however, to state that "executive power" is the power to enforce the laws, for the President is
head of state as well as head of government and whatever powers inhere in such positions pertain to the office unless the
Constitution itself withholds it. Furthermore, the Constitution itself provides that the execution of the laws is only one of the
powers of the President. It also grants the President other powers that do not involve the execution of any provision of
law, e.g., his power over the country's foreign relations.
On these premises, we hold the view that although the 1987 Constitution imposes limitations on the exercise
of specific powers of the President, it maintains intact what is traditionally considered as within the scope of "executive
power." Corollarily, the powers of the President cannot be said to be limited only to the specific powers enumerated in the
Constitution. In other words, executive power is more than the sum of specific powers so enumerated,
It has been advanced that whatever power inherent in the government that is neither legislative nor judicial has to be
executive. Thus, in the landmark decision of Springer v. Government of the Philippine Islands, 277 U.S. 189 (1928), on
the issue of who between the Governor-General of the Philippines and the Legislature may vote the shares of stock held
by the Government to elect directors in the National Coal Company and the Philippine National Bank, the U.S. Supreme
Court, in upholding the power of the Governor-General to do so, said:
...Here the members of the legislature who constitute a majority of the "board" and "committee"
respectively, are not charged with the performance of any legislative functions or with the doing of
anything which is in aid of performance of any such functions by the legislature. Putting aside for the
moment the question whether the duties devolved upon these members are vested by the Organic Act in
the Governor-General, it is clear that they are not legislative in character, and still more clear that they are
not judicial. The fact that they do not fall within the authority of either of these two constitutes logical
ground for concluding that they do fall within that of the remaining one among which the powers of
government are divided ....[At 202-203; Emphasis supplied.]
We are not unmindful of Justice Holmes' strong dissent. But in his enduring words of dissent we find reinforcement for the
view that it would indeed be a folly to construe the powers of a branch of government to embrace only what are
specifically mentioned in the Constitution:
The great ordinances of the Constitution do not establish and divide fields of black and white. Even the
more specific of them are found to terminate in a penumbra shading gradually from one extreme to the
other. ....
xxx xxx xxx
It does not seem to need argument to show that however we may disguise it by veiling words we do not
and cannot carry out the distinction between legislative and executive action with mathematical precision
and divide the branches into watertight compartments, were it ever so desirable to do so, which I am far
from believing that it is, or that the Constitution requires. [At 210- 211.]
The Power Involved
The Constitution declares among the guiding principles that "[t]he prime duty of theGovernment is to serve and protect the
people" and that "[t]he maintenance of peace and order,the protection of life, liberty, and property, and the promotion of
the general welfare are essential for the enjoyment by all the people of the blessings of democracy." [Art. II, Secs. 4 and
5.]
Admittedly, service and protection of the people, the maintenance of peace and order, the protection of life, liberty and
property, and the promotion of the general welfare are essentially ideals to guide governmental action. But such does not
mean that they are empty words. Thus, in the exercise of presidential functions, in drawing a plan of government, and in
directing implementing action for these plans, or from another point of view, in making any decision as President of the
Republic, the President has to consider these principles, among other things, and adhere to them.
Faced with the problem of whether or not the time is right to allow the Marcoses to return to the Philippines, the President
is, under the Constitution, constrained to consider these basic principles in arriving at a decision. More than that, having
sworn to defend and uphold the Constitution, the President has the obligation under the Constitution to protect the people,
promote their welfare and advance the national interest. It must be borne in mind that the Constitution, aside from being
an allocation of power is also a social contract whereby the people have surrendered their sovereign powers to the State
for the common good. Hence, lest the officers of the Government exercising the powers delegated by the people forget
and the servants of the people become rulers, the Constitution reminds everyone that "[s]overeignty resides in the people
and all government authority emanates from them." [Art. II, Sec. 1.]
The resolution of the problem is made difficult because the persons who seek to return to the country are the deposed
dictator and his family at whose door the travails of the country are laid and from whom billions of dollars believed to be ill-
gotten wealth are sought to be recovered. The constitutional guarantees they invoke are neither absolute nor inflexible.
For the exercise of even the preferred freedoms of speech and ofexpression, although couched in absolute terms, admits
of limits and must be adjusted to the requirements of equally important public interests [Zaldivar v. Sandiganbayan, G.R.
Nos. 79690-707, October 7, 1981.]
To the President, the problem is one of balancing the general welfare and the common good against the exercise of rights
of certain individuals. The power involved is the President's residual power to protect the general welfare of the people. It
is founded on the duty of the President, as steward of the people. To paraphrase Theodore Roosevelt, it is not only the
power of the President but also his duty to do anything not forbidden by the Constitution or the laws that the needs of the
nation demand [See Corwin, supra, at 153]. It is a power borne by the President's duty to preserve and defend the
Constitution. It also may be viewed as a power implicit in the President's duty to take care that the laws are faithfully
executed [see Hyman, The American President, where the author advances the view that an allowance of discretionary
power is unavoidable in any government and is best lodged in the President].
More particularly, this case calls for the exercise of the President's powers as protector of the peace. Rossiter The
American Presidency].The power of the President to keep the peace is not limited merely to exercising the commander-in-
chief powers in times of emergency or to leading the State against external and internal threats to its existence. The
President is not only clothed with extraordinary powers in times of emergency, but is also tasked with attending to the day-
to-day problems of maintaining peace and order and ensuring domestic tranquility in times when no foreign foe appears
on the horizon. Wide discretion, within the bounds of law, in fulfilling presidential duties in times of peace is not in any way
diminished by the relative want of an emergency specified in the commander-in-chief provision. For in making the
President commander-in-chief the enumeration of powers that follow cannot be said to exclude the President's exercising
as Commander-in- Chief powers short of the calling of the armed forces, or suspending the privilege of the writ of habeas
corpus or declaring martial law, in order to keep the peace, and maintain public order and security.
That the President has the power under the Constitution to bar the Marcose's from returning has been recognized by
memembers of the Legislature, and is manifested by the Resolution proposed in the House of Representatives and
signed by 103 of its members urging the President to allow Mr. Marcos to return to the Philippines "as a genuine unselfish
gesture for true national reconciliation and as irrevocable proof of our collective adherence to uncompromising respect for
human rights under the Constitution and our laws." [House Resolution No. 1342, Rollo, p. 321.1 The Resolution does not
question the President's power to bar the Marcoses from returning to the Philippines, rather, it appeals to the President's
sense of compassion to allow a man to come home to die in his country.
What we are saying in effect is that the request or demand of the Marcoses to be allowed to return to the Philippines
cannot be considered in the light solely of the constitutional provisions guaranteeing liberty of abode and the right to
travel, subject to certain exceptions, or of case law which clearly never contemplated situations even remotely similar to
the present one. It must be treated as a matter that is appropriately addressed to those residual unstated powers of the
President which are implicit in and correlative to the paramount duty residing in that office to safeguard and protect
general welfare. In that context, such request or demand should submit to the exercise of a broader discretion on the part
of the President to determine whether it must be granted or denied.
The Extent of Review
Under the Constitution, judicial power includes the duty to determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government." [Art.
VIII, Sec. 1] Given this wording, we cannot agree with the Solicitor General that the issue constitutes a political question
which is beyond the jurisdiction of the Court to decide.
The present Constitution limits resort to the political question doctrine and broadens the scope of judicial inquiry into areas
which the Court, under previous constitutions, would have normally left to the political departments to decide. But
nonetheless there remain issues beyond the Court's jurisdiction the determination of which is exclusively for the President,
for Congress or for the people themselves through a plebiscite or referendum. We cannot, for example, question the
President's recognition of a foreign government, no matter how premature or improvident such action may appear. We
cannot set aside a presidential pardon though it may appear to us that the beneficiary is totally undeserving of the grant.
Nor can we amend the Constitution under the guise of resolving a dispute brought before us because the power is
reserved to the people.
There is nothing in the case before us that precludes our determination thereof on the political question doctrine. The
deliberations of the Constitutional Commission cited by petitioners show that the framers intended to widen the scope of
judicial review but they did not intend courts of justice to settle all actual controversies before them. When political
questions are involved, the Constitution limits the determination to whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of the official whose action is being questioned. If grave
abuse is not established, the Court will not substitute its judgment for that of the official concerned and decide a matter
which by its nature or by law is for the latter alone to decide. In this light, it would appear clear that the second paragraph
of Article VIII, Section 1 of the Constitution, defining "judicial power," which specifically empowers the courts to determine
whether or not there has been a grave abuse of discretion on the part of any branch or instrumentality of the government,
incorporates in the fundamental law the ruling in Lansang v. Garcia [G.R. No. L-33964, December 11, 1971, 42 SCRA
4481 that:]
Article VII of the [1935] Constitution vests in the Executive the power to suspend the privilege of the writ
of habeas corpus under specified conditions. Pursuant to the principle of separation of powers underlying
our system of government, the Executive is supreme within his own sphere. However, the separation of
powers, under the Constitution, is not absolute. What is more, it goes hand in hand with the system of
checks and balances, under which the Executive is supreme, as regards the suspension of the privilege,
but only if and when he acts within the sphere alloted to him by the Basic Law, and the authority to
determine whether or not he has so acted is vested in the Judicial Department, which, in this respect, is,
in turn, constitutionally supreme. In the exercise of such authority, the function of the Court is merely to
check — not to supplant the Executive, or to ascertain merely whether he has gone beyond the
constitutional limits of his jurisdiction, not to exercise the power vested in him or to determine the wisdom
of his act [At 479-480.]
Accordingly, the question for the Court to determine is whether or not there exist factual bases for the President to
conclude that it was in the national interest to bar the return of the Marcoses to the Philippines. If such postulates do exist,
it cannot be said that she has acted, or acts, arbitrarily or that she has gravely abused her discretion in deciding to bar
their return.
We find that from the pleadings filed by the parties, from their oral arguments, and the facts revealed during the briefing in
chambers by the Chief of Staff of the Armed Forces of the Philippines and the National Security Adviser, wherein
petitioners and respondents were represented, there exist factual bases for the President's decision..
The Court cannot close its eyes to present realities and pretend that the country is not besieged from within by a well-
organized communist insurgency, a separatist movement in Mindanao, rightist conspiracies to grab power, urban
terrorism, the murder with impunity of military men, police officers and civilian officials, to mention only a few. The
documented history of the efforts of the Marcose's and their followers to destabilize the country, as earlier narrated in
this ponencia bolsters the conclusion that the return of the Marcoses at this time would only exacerbate and intensify the
violence directed against the State and instigate more chaos.
As divergent and discordant forces, the enemies of the State may be contained. The military establishment has given
assurances that it could handle the threats posed by particular groups. But it is the catalytic effect of the return of the
Marcoses that may prove to be the proverbial final straw that would break the camel's back. With these before her, the
President cannot be said to have acted arbitrarily and capriciously and whimsically in determining that the return of the
Marcoses poses a serious threat to the national interest and welfare and in prohibiting their return.
It will not do to argue that if the return of the Marcoses to the Philippines will cause the escalation of violence against the
State, that would be the time for the President to step in and exercise the commander-in-chief powers granted her by the
Constitution to suppress or stamp out such violence. The State, acting through the Government, is not precluded from
taking pre- emptive action against threats to its existence if, though still nascent they are perceived as apt to become
serious and direct. Protection of the people is the essence of the duty of government. The preservation of the State the
fruition of the people's sovereignty is an obligation in the highest order. The President, sworn to preserve and defend the
Constitution and to see the faithful execution the laws, cannot shirk from that responsibility.
We cannot also lose sight of the fact that the country is only now beginning to recover from the hardships brought about
by the plunder of the economy attributed to the Marcoses and their close associates and relatives, many of whom are still
here in the Philippines in a position to destabilize the country, while the Government has barely scratched the surface, so
to speak, in its efforts to recover the enormous wealth stashed away by the Marcoses in foreign jurisdictions. Then, We
cannot ignore the continually increasing burden imposed on the economy by the excessive foreign borrowing during the
Marcos regime, which stifles and stagnates development and is one of the root causes of widespread poverty and all its
attendant ills. The resulting precarious state of our economy is of common knowledge and is easily within the ambit of
judicial notice.
The President has determined that the destabilization caused by the return of the Marcoses would wipe away the gains
achieved during the past few years and lead to total economic collapse. Given what is within our individual and common
knowledge of the state of the economy, we cannot argue with that determination.
WHEREFORE, and it being our well-considered opinion that the President did not act arbitrarily or with grave abuse of
discretion in determining that the return of former President Marcos and his family at the present time and under present
circumstances poses a serious threat to national interest and welfare and in prohibiting their return to the Philippines, the
instant petition is hereby DISMISSED.
SO ORDERED.
Separate Opinions
FERNAN, C.J., concurring:
"The threats to national security and public order are real the mounting Communist insurgency, a simmering separatist
movement, a restive studentry, widespread labor disputes, militant farmer groups. . . . Each of these threats is an
explosive ingredient in a steaming cauldron which could blow up if not handled properly." 1
These are not my words. They belong to my distinguished colleague in the Court, Mr. Justice Hugo E. Gutierrez, Jr. But
they express eloquently the basis of my full concurrence to the exhaustive and well-written ponencia of Mme. Justice
Irene R. Cortes.
Presidential powers and prerogatives are not fixed but fluctuate. They are not derived solely from a particular
constitutional clause or article or from an express statutory grant. Their limits are likely to depend on the imperatives of
events and contemporary imponderables rather than on abstract theories of law. History and time-honored principles of
constitutional law have conceded to the Executive Branch certain powers in times of crisis or grave and imperative
national emergency. Many terms are applied to these powers: "residual," "inherent," 44 moral," "implied," "aggregate,"
"emergency." whatever they may be called, the fact is that these powers exist, as they must if the governance function of
the Executive Branch is to be carried out effectively and efficiently. It is in this context that the power of the President to
allow or disallow the Marcoses to return to the Philippines should be viewed. By reason of its impact on national peace
and order in these admittedly critical times, said question cannot be withdrawn from the competence of the Executive
Branch to decide.
And indeed, the return of the deposed President, his wife and children cannot but pose a clear and present danger to
public order and safety. One needs only to recall the series of destabilizing actions attempted by the so-called Marcos
loyalists as well as the ultra-rightist groups during the EDSA Revolution's aftermath to realize this. The most publicized of
these offensives is the Manila Hotel incident which occurred barely five (5) months after the People's Power Revolution.
Around 10,000 Marcos supporters, backed by 300 loyalist soldiers led by Brigadier General Jose Zumel and Lt. Col.
Reynaldo Cabauatan converged at the Manila Hotel to witness the oath-taking of Arturo Tolentino as acting president of
the Philippines. The public disorder and peril to life and limb of the citizens engendered by this event subsided only upon
the eventual surrender of the loyalist soldiers to the authorities.
Then followed the Channel 7, Sangley, Villamor, Horseshoe Drive and Camp Aguinaldo incidents. Military rebels waged
simultaneous offensives in different parts of Metro Manila and Sangley Point in Cavite. A hundred rebel soldiers took over
Channel 7 and its radio station DZBB. About 74 soldier rebels attacked Villamor Air Base, while another group struck at
Sangley Point in Cavite and held the 15th Air Force Strike wing commander and his deputy hostage. Troops on board
several vehicles attempted to enter Gate I of Camp Aguinaldo even as another batch of 200 soldiers encamped at
Horseshoe Village.
Another destabilization plot was carried out in April, 1987 by enlisted personnel who forced their way through Gate 1 of
Fort Bonifacio. They stormed into the army stockade but having failed to convince their incarcerated members to unite in
their cause, had to give up nine (9) hours later.
And who can forget the August 28, 1987 coup attempt which almost toppled the Aquino Government? Launched not by
Marcos loyalists, but by another ultra-rightist group in the military led by Col. Gregorio "Gringo" Honasan who remains at
large to date, this most serious attempt to wrest control of the government resulted in the death of many civilians.
Members of the so-called Black Forest Commando were able to cart away high-powered firearms and ammunition from
the Camp Crame Armory during a raid conducted in June 1988. Most of the group members were, however, captured in
Antipolo, Rizal. The same group was involved in an unsuccessful plot known as Oplan Balik Saya which sought the return
of Marcos to the country.
A more recent threat to public order, peace and safety was the attempt of a group named CEDECOR to mobilize civilians
from nearby provinces to act as blockading forces at different Metro Manila areas for the projected link-up of Marcos
military loyalist troops with the group of Honasan. The pseudo "people power" movement was neutralized thru
checkpoints set up by the authorities along major road arteries where the members were arrested or forced to turn back.
While not all of these disruptive incidents may be traced directly to the Marcoses, their occurrence militates heavily
against the wisdom of allowing the Marcoses' return. Not only will the Marcoses' presence embolden their followers
toward similar actions, but any such action would be seized upon as an opportunity by other enemies of the State, such
as the Communist Party of the Philippines and the NPA'S, the Muslim secessionists and extreme rightists of the RAM, to
wage an offensive against the government. Certainly, the state through its executive branch has the power, nay, the
responsibility and obligation, to prevent a grave and serious threat to its safety from arising.
Apparently lost amidst the debate on whether or not to allow the Marcoses to return to the Philippines is one factor, which
albeit, at first blush appears to be extra legal, constitutes a valid justification for disallowing the requested return. I refer to
the public pulse. It must be remembered that the ouster of the Marcoses from the Philippines came about as an
unexpected, but certainly welcomed, result of the unprecedented peoples power" revolution. Millions of our people braved
military tanks and firepower, kept vigil, prayed, and in countless manner and ways contributed time, effort and money to
put an end to an evidently untenable claim to power of a dictator. The removal of the Marcoses from the Philippines was a
moral victory for the Filipino people; and the installation of the present administration, a realization of and obedience to the
people's Will.
Failing in legal arguments for the allowance of the Marcoses' return, appeal is being made to sympathy, compassion and
even Filipino tradition. The political and economic gains we have achieved during the past three years are however too
valuable and precious to gamble away on purely compassionate considerations. Neither could public peace, order and
safety be sacrificed for an individual's wish to die in his own country. Verily in the balancing of interests, the scales tilt in
favor of presidential prerogative, which we do not find to have been gravely abused or arbitrarily exercised, to ban the
Marcoses from returning to the Philippines.
GUTIERREZ, JR., J., dissenting
"The Constitution ... is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection
all classes of men, at all times, and under all circumstances. No doctrine involving more pernicious consequences was
ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of
government." (Ex Parte Milligan, 4 Wall. 2; 18 L. Ed. 281 [1866])
Since our days as law students, we have proclaimed the stirring words of Ex Parte Milligan as self-evident truth. But faced
with a hard and delicate case, we now hesitate to qive substance to their meaning. The Court has permitted a basic
freedom enshrined in the Bill of Rights to be taken away by Government.
There is only one Bill of Rights with the same interpretation of liberty and the same guarantee of freedom for both unloved
and despised persons on one hand and the rest who are not so stigmatized on the other.
I am, therefore, disturbed by the majority ruling which declares that it should not be a precedent. We are interpreting the
Constitution for only one person and constituting him into a class by himself. The Constitution is a law for all classes of
men at all times. To have a person as one class by himself smacks of unequal protection of the laws.
With all due respect for the majority in the Court, I believe that the issue before us is one of rights and not of power. Mr.
Marcos is insensate and would not live if separated from the machines which have taken over the functions of his kidneys
and other organs. To treat him at this point as one with full panoply of power against whom the forces of Government
should be marshalled is totally unrealistic. The Government has the power to arrest and punish him. But does it have the
power to deny him his right to come home and die among familiar surroundings?
Hence, this dissent.
The Bill of Rights provides:

Sec. 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be
interest of national security, public safety, or public health, as may be provided by law. (Emphasis
supplied, Section 6, Art. 111, Constitution)
To have the petition dismissed, the Solicitor General repeats a ritual invocation of national security and public safety
which is hauntingly familiar because it was pleaded so often by petitioner Ferdinand E. Marcos to justify his acts under
martial law. There is, however, no showing of the existence of a law prescribing the limits of the power to impair and the
occasions for its exercise. And except for citing breaches of law and order, the more serious of which were totally
unrelated to Mr. Marcos and which the military was able to readily quell, the respondents have not pointed to any grave
exigency which permits the use of untrammeled Governmental power in this case and the indefinite suspension of the
constitutional right to travel.
The respondents' basic argument is that the issue before us is a political question beyond our jurisdiction to consider.
They contend that the decision to ban former President Marcos, and his family on grounds of national security and public
safety is vested by the Constitution in the President alone. The determination should not be questioned before this Court.
The President's finding of danger to the nation should be conclusive on the Court.
What is a political question?
In Vera v. Avelino (77 Phil. 192, 223 [1946], the Court stated:
xxx xxx xxx
It is a well-settled doctrine that political questions are not within the province of the judiciary, except to the
extent that power to deal with such questions has been conferred on the courts by express constitutional
or statutory provisions. It is not so easy, however, to define the phrase political question, nor to determine
what matters fall within its scope. It is frequently used to designate all questions that he outside the scope
of the judicial power. More properly, however, it means 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.
We defined a political question in Taniada v. Cuenco (103 Phil. 1051, 1066 [1957]), as follows:
In short, the term 'Political question' connotes, in legal parlance, what it means in ordinary parlance,
namely, a question of policy. In other words, in the language of Corpus Juris Secundum (supra), it refers
to 'those questions which, under the Constitution, are to be decided by the people in their sovereign
capacity, or in regard to which full discretionary authority has been delegated to the Legislature or
executive branch of the Government. It is concerned with issues dependent upon the wisdom, not
legality, of a particular measure.
The most often quoted definition of political question was made by Justice William J. Brennan Jr., who penned the
decision of the United States Supreme Court in Baker v. Carr (369 US 186,82, S. Ct. 691, L. Ed. 2d. 663 [1962]). The
ingredients of a political question as formulated in Baker v. Carr are:
It is apparent that several formulations which vary slightly according to the settings in which the questions
arise may describe a political question, which identifies it as essentially a function of the separation of
powers. 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
potentiality of embarrassment from multifarious pronouncements by various departments on one
question.
For a political question to exist, there must be in the Constitution a power vested exclusively in the President or Congress,
the exercise of which the court should not examine or prohibit. A claim of plenary or inherent power against a civil right
which claim is not found in a specific provision is dangerous. Neither should we validate a roving commission allowing
public officials to strike where they please and to override everything which to them represents evil. The entire
Government is bound by the rule of law.
The respondents have not pointed to any provision of the Constitution which commits or vests the determination of the
question raised to us solely in the President.
The authority implied in Section 6 of the Bill of Rights itself does not exist because no law has been enacted specifying
the circumstances when the right may be impaired in the interest of national security or public safety. The power is in
Congress, not the Executive.
The closest resort to a textile demonstrable constitutional commitment of power may be found in the commander-in-chief
clause which allows the President to call out the armed forces in case of lawless violence, invasion or rebellion and to
suspend the privilege of the writ of habeas corpus or proclaim martial law in the event of invasion or rebellion, when the
public safety requires it.
There is, however, no showing, not even a claim that the followers of former President Marcos are engaging in rebellion or
that he is in a position to lead them. Neither is it claimed that there is a need to suspend the privilege of the writ of habeas
corpus or proclaim martial law because of the arrival of Mr. Marcos and his family. To be sure, there may be disturbances
but not of a magnitude as would compel this Court to resort to a doctrine of non- justiceability and to ignore a plea for the
enforcement of an express Bill of Rights guarantee.
The respondents themselves are hard-pressed to state who or what constitutes a Marcos "loyalist." The constant
insinuations that the "loyalist" group is heavily funded by Mr. Marcos and his cronies and that the "loyalists" engaging in
rallies and demonstrations have to be paid individual allowances to do so constitute the strongest indication that the hard
core "loyalists" who would follow Marcos right or wrong are so few in number that they could not possibly destabilize the
government, much less mount a serious attempt to overthrow it.
Not every person who would allow Mr. Marcos to come home can be tagged a "loyalist." It is in the best of Filipino
customs and traditions to allow a dying person to return to his home and breath his last in his native surroundings. Out of
the 103 Congressmen who passed the House resolution urging permission for his return, there are those who dislike Mr.
Marcos intensely or who suffered under his regime. There are also many Filipinos who believe that in the spirit of national
unity and reconciliation Mr. Marcos and his family should be permitted to return to the Philippines and that such a return
would deprive his fanatic followers of any further reason to engage in rallies and demonstrations.
The Court, however, should view the return of Mr. Marcos and his family solely in the light of the constitutional guarantee
of liberty of abode and the citizen's right to travel as against the respondents' contention that national security and public
safety would be endangered by a grant of the petition.
Apart from the absence of any text in the Constitution committing the issue exclusively to the President, there is likewise
no dearth of decisional data, no unmanageable standards which stand in the way of a judicial determination.
Section 6 of the Bill of Rights states categorically that the liberty of abode and of changing the same within the limits
prescribed by law may be impaired only upon a lawful order of a court. Not by an executive officer. Not even by the
President. Section 6 further provides that the right to travel, and this obviously includes the right to travel out of or back
into the Philippines, cannot be impaired except in the interest of national security, public safety, or public health, as may
be provided by law.
There is no law setting the limits on a citizen's right to move from one part of the country to another or from the Philippines
to a foreign country or from a foreign country to the Philippines. The laws cited by the Solicitor General immigration,
health, quarantine, passports, motor vehicle, destierro probation, and parole are all inapplicable insofar as the return of
Mr. Marcos and family is concerned. There is absolutely no showing how any of these statutes and regulations could
serve as a basis to bar their coming home.
There is also no disrespect for a Presidential determination if we grant the petition. We would simply be applying the
Constitution, in the preservation and defense of which all of us in Government, the President and Congress included, are
sworn to participate. Significantly, the President herself has stated that the Court has the last word when it comes to
constitutional liberties and that she would abide by our decision.
As early as 1983, it was noted that this Court has not been very receptive to the invocation of the political question
doctrine by government lawyers. (See Morales, Jr. .v Ponce Enrile, 121 SCRA 538 [1983]).
Many of those now occupying the highest positions in the executive departments, Congress, and the judiciary criticized
this Court for using what they felt was a doctrine of convenience, expediency, utility or subservience. Every major
challenge to the acts of petitioner Ferdinand E. Marcos under his authoritarian regime the proclamation of martial law, the
ratification of a new constitution, the arrest and detention of "enemies of the State" without charges being filed against
them, the dissolution of Congress and the exercise by the President of legislative powers, the trial of civilians for civil
offenses by military tribunals, the seizure of some of the country's biggest corporations, the taking over or closure of
newspaper offices, radio and television stations and other forms of media, the proposals to amend the Constitution, etc.
was invariably met by an invocation that the petition involved a political question. It is indeed poetic justice that the political
question doctrine so often invoked by then President Marcos to justify his acts is now being used against him and his
family. Unfortunately, the Court should not and is not allowed to indulge in such a persiflage. We are bound by the
Constitution.
The dim view of the doctrine's use was such that when the present Constitution was drafted, a broad definition of judicial
power was added to the vesting in the Supreme Court and statutory courts of said power.
The second paragraph of Section 1, Article VIII of the Constitution provides:
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights
which are legally demandable and enforceable, and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality
of the Government.
This new provision was enacted to preclude this Court from using the political question doctrine as a means to avoid
having to make decisions simply because they are too controversial, displeasing to the President or Congress,
inordinately unpopular, or which may be ignored and not enforced.
The framers of the Constitution believed that the free use of the political question doctrine allowed the Court during the
Marcos years to fall back on prudence, institutional difficulties, complexity of issues, momentousness of consequences or
a fear that it was extravagantly extending judicial power in the cases where it refused to examine and strike down an
exercise of authoritarian power. Parenthetically, at least two of the respondents and their counsel were among the most
vigorous critics of Mr. Marcos (the main petitioner) and his use of the political question doctrine. The Constitution was
accordingly amended. We are now precluded by its mandate from refusing to invalidate a political use of power through a
convenient resort to the question doctrine. We are compelled to decide what would have been non-justiceable under our
decisions interpreting earlier fundamental charters.
This is not to state that there can be no more political questions which we may refuse to resolve. There are still some
political questions which only the President, Congress, or a plebiscite may decide. Definitely, the issue before us is not
one of them.
The Constitution requires the Court "to determine whether or not there has been a grave abuse of discretion amounting to
lack or excess of jurisdiction."
How do we determine a grave abuse of discretion?
The tested procedure is to require the parties to present evidence. Unfortunately, considerations of national security do
not readily lend themselves to the presentation of proof before a court of justice. The vital information essential to an
objective determination is usually highly classified and it cannot be rebutted by those who seek to overthrow the
government. As early as Barcelon v. Baker (5 Phil. 87, 93 [19051), the Court was faced with a similar situation. It posed a
rhetorical question. If after investigating conditions in the Archipelago or any part thereof, the President finds that public
safety requires the suspension of the privilege of the writ of habeas corpus, can the judicial department investigate the
same facts and declare that no such conditions exist?
In the effort to follow the "grave abuse of discretion" formula in the second paragraph of Section 1, Article VIII of the
Constitution, the court granted the Solicitor General's offer that the military give us a closed door factual briefing with a
lawyer for the petitioners and a lawyer for the respondents present.
The results of the briefing call to mind the concurrence of Justice Vicente Abad Santos in Morales, Jr. v. Enrile, (121
SCRA 538, 592 [19831):
How can this Court determine the factual basis in order that it can ascertain whether or not the president
acted arbitrarily in suspending the writ when, in the truth words of Montenegro, with its very limited
machinery fit] cannot be in better position [than the Executive Branch] to ascertain or evaluate the
conditions prevailing in the Archipelago? (At p. 887). The answer is obvious. It must rely on the Executive
Branch which has the appropriate civil and military machinery for the facts. This was the method which
had to be used in Lansang. This Court relied heavily on classified information supplied by the military.
Accordingly, an incongruous situation obtained. For this Court, relied on the very branch of the
government whose act was in question to obtain the facts. And as should be expected the Executive
Branch supplied information to support its position and this Court was in no situation to disprove them. It
was a case of the defendant judging the suit. After all is said and done, the attempt by its Court to
determine whether or not the President acted arbitrarily in suspending the writ was a useless and futile
exercise.
There is still another reason why this Court should maintain a detached attitude and refrain from giving
the seal of approval to the act of the Executive Branch. For it is possible that the suspension of the writ
lacks popular support because of one reason or another. But when this Court declares that the
suspension is not arbitrary (because it cannot do otherwise upon the facts given to it by the Executive
Branch) it in effect participates in the decision-making process. It assumes a task which it is not equipped
to handle; it lends its prestige and credibility to an unpopular act.
The other method is to avail of judicial notice. In this particular case, judicial notice would be the only basis for determining
the clear and present danger to national security and public safety. The majority of the Court has taken judicial notice of
the Communist rebellion, the separatist movement, the rightist conspiracies, and urban terrorism. But is it fair to blame the
present day Marcos for these incidents? All these problems are totally unrelated to the Marcos of today and, in fact, are
led by people who have always opposed him. If we use the problems of Government as excuses for denying a person's
right to come home, we will never run out of justifying reasons. These problems or others like them will always be with us.
Significantly, we do not have to look into the factual bases of the ban Marcos policy in order to ascertain whether or not
the respondents acted with grave abuse of discretion. Nor are we forced to fall back upon judicial notice of the
implications of a Marcos return to his home to buttress a conclusion.
In the first place, there has never been a pronouncement by the President that a clear and present danger to national
security and public safety will arise if Mr. Marcos and his family are allowed to return to the Philippines. It was only after
the present petition was filed that the alleged danger to national security and public safety conveniently surfaced in the
respondents' pleadings. Secondly, President Aquino herself limits the reason for the ban Marcos policy to — (1) national
welfare and interest and (2) the continuing need to preserve the gains achieved in terms of recovery and stability. (See
page 7, respondents' Comment at page 73 of Rollo). Neither ground satisfies the criteria of national security and public
safety. The President has been quoted as stating that the vast majority of Filipinos support her position. (The Journal,
front page, January 24,1989) We cannot validate their stance simply because it is a popular one. Supreme Court
decisions do not have to be popular as long as they follow the Constitution and the law. The President's original position
"that it is not in the interest of the nation that Marcos be allowed to return at this time" has not changed. (Manila Times,
front page, February 7, 1989). On February 11, 1989, the President is reported to have stated that "considerations of the
highest national good dictate that we preserve the substantial economic and political gains of the past three years" in
justifying her firm refusal to allow the return of Mr. Marcos despite his failing health. (Daily Globe, front page, February 15,
1989). "Interest of the nation national good," and "preserving economic and political gains," cannot be equated with
national security or public order. They are too generic and sweeping to serve as grounds for the denial of a constitutional
right. The Bill of Rights commands that the right to travel may not be impaired except on the stated grounds of national
security, public safety, or public health and with the added requirement that such impairment must be "as provided by
law." The constitutional command cannot be negated by mere generalizations.
There is an actual rebellion not by Marcos followers but by the New Peoples' Army. Feeding as it does on injustice,
ignorance, poverty, and other aspects at under-development, the Communist rebellion is the clearest and most present
danger to national security and constitutional freedoms. Nobody has suggested that one way to quell it would be to catch
and exile its leaders, Mr. Marcos himself was forced to flee the country because of "peoples' power." Yet, there is no
move to arrest and exile the leaders of student groups, teachers' organizations, pea ant and labor federations, transport
workers, and government unions whose threatened mass actions would definitely endanger national security and the
stability of government. We fail to see how Mr. Marcos could be a greater danger.
The fear that Communist rebels, Bangsa Moro secessionists, the Honasan ex-soldiers, the hard core loyalists, and other
dissatisfied elements would suddenly unite to overthrow the Republic should a dying Marcos come home is too
speculative and unsubstantial a ground for denying a constitutional right. It is not shown how extremists from the right and
the left who loathe each other could find a rallying point in the coming of Mr. Marcos.
The "confluence theory" of the Solicitor General or what the majority calls "catalytic effect," which alone sustains the claim
of danger to national security is fraught with perilous implications. Any difficult problem or any troublesome person can be
substituted for the Marcos threat as the catalysing factor. The alleged confluence of NPAs, secessionists, radical
elements, renegade soldiers, etc., would still be present. Challenged by any critic or any serious problem, the Government
can state that the situation threatens a confluence of rebel forces and proceed to ride roughshod over civil liberties in the
name of national security. Today, a passport is denied. Tomorrow, a newspaper may be closed. Public assemblies may
be prohibited. Human rights may be violated. Yesterday, the right to travel of Senators Benigno Aquino, Jr. and Jovito
Salonga was curtailed. Today, it is the right of Mr. Marcos and family. Who will be tomorrow's pariahs I deeply regret that
the Court's decision to use the political question doctrine in a situation where it does not apply raises all kinds of disturbing
possibilities.
I must emphasize that General Renato de Villa, the Chief of Staff of the Armed Forces, has personally assured the Court
that a rebellion of the above combined groups will not succeed and that the military is on top of the situation. Where then
is the clear danger to national security? The Court has taken judicial notice of something which even the military denies.
There would be severe strains on military capabilities according to General de Villa. There would be set-backs in the
expected eradication of the Communist threat. There would be other serious problems but all can be successfully
contained by the military. I must stress that no reference was made to a clear and present danger to national security as
would allow an overriding of the Bill of Rights.
The Solicitor General's argument that the failure of Congress to enact a statute defining the parameters of the right to
travel and to freely choose one's abode has constrained the President to fill in the vacuum, is too reminiscent of
Amendment No. 6 of the martial law Constitution to warrant serious consideration. Amendment No. 6 allowed Marcos to
issue decrees whenever the Batasang Pambansa failed or was unable to act adequately on any matter for any reason
that in his judgment required immediate action. When the Bill of Rights provides that a right may not be impaired except in
the interest of national security, public safety, or public health and further requires that a law must provide when such
specifically defined interests are prejudiced or require protection, the inaction of Congress does not give reason for the
respondents to assume the grounds for its impairment.
The fact that the Marcoses have been indicted before American federal courts does not obstruct us from ruling against an
unconstitutional assertion of power by Philippine officials. Let the United States apply its laws. We have to be true to our
own.
Mr. Marcos may be too ill to withstand the rigors of a transpacific flight. The agony of traveling while hooked up to
machines which have taken over the functions of his heart, lungs, and kidneys may hasten his death. The physical
condition of Mr. Marcos does not justify our ignoring or refusing to act on his claim to a basic right which is legally
demandable and enforceable. For his own good, it might be preferable to stay where he is. But he invokes a constitutional
right. We have no power to deny it to him.
The issuance of a passport may be discretionary but it should not be withheld if to do so would run counter to a
constitutional guarantee. Besides, the petitioners are not asking for passports and nothing else. Any travel documents or
any formal lifting of the Marcos ban as would allow international airlines to sell them tickets would suffice.
With all due respect for the majority opinion, I disagree with its dictum on the right to travel. I do not think we should
differentiate the right to return home from the right to go abroad or to move around in the Philippines. If at all, the right to
come home must be more preferred than any other aspect of the right to travel. It was precisely the banning by Mr.
Marcos of the right to travel by Senators Benigno Aquino, Jr., Jovito Salonga, and scores of other "undesirables" and
"threats to national security" during that unfortunate period which led the framers of our present Constitution not only to re-
enact but to strengthen the declaration of this right. Media often asks, "what else is new?" I submit that we now have a
freedom loving and humane regime. I regret that the Court's decision in this case sets back the gains that our country has
achieved in terms of human rights, especially human rights for those whom we do not like or those who are against us.
The respondent Secretary of Foreign Affairs, Raul S. Manglapus has disclosed a list of former dictators who were barred
by their successors from returning to their respective countries. There is no showing that the countries involved have
constitutions which guarantee the liberty of abode and the freedom to travel and that despite such constitutional
protections, the courts have validated the "ban a return" policy. Neither is it shown that the successors of the listed
dictators are as deeply committed to democratic principles and as observant of constitutional protections as President
Aquino.
It is indeed regrettable that some followers of the former President are conducting a campaign to sow discord and to
divide the nation. Opposition to the government no matter how odious or disgusting is, however, insufficient ground to
ignore a constitutional guarantee.
During the protracted deliberations on this case, the question was asked is the Government helpless to defend itself
against a threat to national security? Does the President have to suspend the privilege of the writ of habeas corpus or
proclaim martial law? Can she not take less drastic measures?
Of course, the Government can act. It can have Mr. Marcos arrested and tried in court. The Government has more than
ample powers under eixisting law to deal with a person who transgresses the peace and imperils public safety. But the
denial of travel papers is not one of those powers because the Bill of Rights says so. There is no law prescribing exile in a
foreign land as the penalty for hurting the Nation.
Considering all the foregoing, I vote to GRANT the petition.
CRUZ, J., dissenting:
It is my belief that the petitioner, as a citizen of the Philippines, is entitled to return to and live — and die — in his own
country. I say this with a heavy heart but say it nonetheless. That conviction is not diminished one whit simply because
many believe Marcos to be beneath contempt and undeserving of the very liberties he flounted when he was the absolute
ruler of this land.
The right of the United States government to detain him is not the question before us, nor can we resolve it. The question
we must answer is whether or not, assuming that Marcos is permitted to leave Hawaii (which may depend on the action
we take today), the respondents have acted with grave abuse of discretion in barring him from his own country.
My reluctant conclusion is that they have, absent the proof they said they were prepared to offer, but could not, that the
petitioner's return would prejudice the security of the State.
I was the one who, in the open hearing held on June 27,1989, asked the Solicitor General if the government was prepared
to prove the justification for opposing the herein petition, i.e. that it had not acted arbitrarily. He said it was. Accordingly,
the Court, appreciating the classified nature of the information expected, scheduled a closed-door hearing on July
25,1988. The Solicitor General and three representatives from the military appeared for the respondents, together with
former Senator Arturo M. Tolentino, representing the petitioners.
In about two hours of briefing, the government failed dismally to show that the return of Marcos dead or alive would pose
a threat to the national security as it had alleged. The fears expressed by its representatives were based on mere
conjectures of political and economic destabilization without any single piece of concrete evidence to back up their
apprehensions.
Amazingly, however, the majority has come to the conclusion that there exist "factual bases for the President's decision"
to bar Marcos's return. That is not my recollection of the impressions of the Court after that hearing.
In holding that the President of the Philippines has residual powers in addition to the specific powers granted by the
Constitution, the Court is taking a great leap backward and reinstating the discredited doctrine announced in Planas v. Gil
(67 Phil. 62). This does not square with the announced policy of the Constitutional Commission, which was precisely
to limit rather than expand presidential powers, as a reaction to the excesses of the past dictatorship.
I can only repeat Justice Black's wry observation in the Steel Seizure Case (343 U.S. 579) that if it was true that the
President had been granted the totality of executive power, "it is difficult to see why our forefathers bothered to add
several specific items, including some trifling ones, . . . I cannot accept the view that this clause is a grant in bulk of all
conceivable executive power but regard it as an allocation to the presidential office of the generic powers thereafter
stated."
I have no illusion that the stand I am taking will be met with paeans of praise, considering that Marcos is perhaps the most
detested man in the entire history of our country. But we are not concerned here with popularity and personalities. As a
judge, I am not swayed by what Justice Cardozo called the "hooting throng" that may make us see things through the
prisms of prejudice. I bear in mind that when I sit in judgment as a member of this Court, I must cast all personal feelings
aside.
The issue before us must be resolved with total objectivity, on the basis only of the established facts and the applicable
law and not of wounds that still fester and scars that have not healed. And not even of fear, for fear is a phantom. That
phantom did not rise when the people stood fast at EDSA against the threat of total massacre in defense at last of their
freedom.
I cannot turn back on the lessons of liberty that I taught for more than three decades as a professor of Constitutional Law.
These principles have not changed simply because I am now on the Court or a new administration is in power and the
shoe is on the other foot.
Like the martyred Ninoy Aquino who also wanted to come back to the Philippines against the prohibitions of the
government then, Marcos is entitled to the same right to travel and the liberty of abode that his adversary invoked. These
rights are guaranteed by the Constitution to all individuals, including the patriot and the homesick and the prodigal son
returning, and tyrants and charlatans and scoundrels of every stripe.
I vote to grant the petition.
PARAS, J., dissenting:
I dissent. Already, some people refer to us as a nation without discipline. Are we ready to be also called a society without
compassion?
The issue as to whether or not former President Ferdinand E. Marcos should be allowed to return to the Philippines may
be resolved by answering two simple questions: Does he have the right to return to his own country and should national
safety and security deny him this right?
There is no dispute that the former President is still a Filipino citizen and both under the Universal Declaration of Human
Rights and the 1987 Constitution of the Philippines, he has the right to return to his own country except only if prevented
by the demands of national safety and national security.
Our Armed Forces have failed to prove this danger. They are bereft of hard evidence, and all they can rely on is sheer
speculation. True, there is some danger but there is no showing as to the extent.
It is incredible that one man alone together with his family, who had been ousted from this country by popular will, can
arouse an entire country to rise in morbid sympathy for the cause he once espoused.
It is therefore clear to me, all other opinions to the contrary notwithstanding, that the former President should be allowed
to return to our country under the conditions that he and the members of his family be under house arrest in his hometown
in Ilocos Norte, and should President Marcos or any member of his family die, the body should not be taken out of the
municipality of confinement and should be buried within ten (10) days from date.
If we do this, our country shall have maintained its regard for fundamental human rights, for national discipline, and for
human compassion.
PADILLA, J., dissenting:
I dissent. As I see it, the core issue in this case is, which right will prevail in the conflict between the right of a Filipino,
Ferdinand E. Marcos, to return to the Philippines, and the right of the Philippine Government to bar such return in the
interest of national security and public safety. In this context, the issue is clearly justiciable involving, as it does, colliding
assertions of individual right and governmental power. Issues of this nature more than explain why the 1986 Constitutional
Commission, led by the illustrious former Chief Justice Roberto Concepcion, incorporated in the 1987 Constitution, the
new provision on the power of Judicial Review, viz:
of the Government. Article VIII, Section 1, par. 2; (Emphasis supplied)
Mr. Marcos invokes in his favor the specific and precise constitutional right of every Filipino to travel which, in the
language of the Constitution, shall not be impaired "except in the interest of national security, public safety, or public
health, as may be provided by law" (Art. III, Sec. 6). That the right to travel comprises the right to travel within the country,
to travel out of the country and to return to the country (Philippines), is hardly disputable. Short of all such components,
the right to travel is meaningless. The real question arises in the interpretation of the qualifications attached by the
Constitution to such right to travel.
Petitioners contend that, in the absence of restricting legislation, the right to travel is absolute. I do not agree. It is my view
that, with or without restricting legislation, the interest of national security, public safety or public health can justify and
even require restrictions on the right to travel, and that the clause "as may be provided by law" contained in Article III,
Section 6 of the 1987 Constitution merely declares a constitutional leave or permission for Congress to enact laws that
may restrict the right to travel in the interest of national security, public safety or public health. I do not, therefore, accept
the petitioners' submission that, in the absence of enabling legislation, the Philippine Government is powerless to restrict
travel even when such restriction is demanded by national security, public safety or public health, The power of the State,
in particular cases, to restrict travel of its citizens finds abundant support in the police power of the state wich may be
exercised to preserve and maintain government as well as promote the general welfare of the greatest number of people.
And yet, the power of the State, acting through a government in authority at any given time, to restrict travel, even if
founded on police power, cannot be absolute and unlimited under all circumstances, much less, can it be arbitrary and
irrational.
Mr. Marcos, I repeat, comes before the Court as a Filipino, invoking a specific constitutional right, i.e., the right to return to
the country. 1 Have the respondents presented sufficient evidence to offset or override the exercise of this right invoked by
Mr. Marcos? Stated differently, have the respondents shown to the Court sufficient factual bases and data which would
justify their reliance on national security and public safety in negating the right to return invoked by Mr. Marcos?
I have given these questions a searching examination. I have carefully weighed and assessed the "briefing" given the
Court by the highest military authorities of the land last 28 July 1989. 1 have searched, but in vain, for convincing
evidence that would defeat and overcome the right of Mr. Marcos as a Filipino to return to this country. It appears to me
that the apprehensions entertained and expressed by the respondents, including those conveyed through the military, do
not, with all due respect, escalate to proportions of national security or public safety. They appear to be more speculative
than real, obsessive rather than factual. Moreover, such apprehensions even if translated into realities, would be "under
control," as admitted to the Court by said military authorities, given the resources and facilities at the command of
government. But, above all, the Filipino people themselves, in my opinion, will know how to handle any situation brought
about by a political recognition of Mr. Marcos' right to return, and his actual return, to this country. The Court, in short,
should not accept respondents' general apprehensions, concerns and perceptions at face value, in the light of a
countervailing and even irresistible, specific, clear, demandable, and enforceable right asserted by a Filipino.
Deteriorating political, social, economic or exceptional conditions, if any, are not to be used as a pretext to justify
derogation of human rights. 2
As a member of the United Nations, the Philippines has obligations under its charter. By adopting the generally accepted
principles of international law as part of the law of the land, (Art. II, Sec. 2 of the Constitution), the Philippine government
cannot just pay lip service to Art. 13, par. 2 of the Universal Declaration of Human Rights which provides that everyone
has the right to leave any country, including his own, and to return to his country. This guarantee is reiterated in Art. XII,
par. 2 of the International Covenant on Civil and Political Rights which states that "no one shall be arbitrarily deprived of
the right to enter his own country." (Emphasis supplied) "Arbitrary" or "arbitrarily" was specifically chosen by the drafters of
the Covenant 3 hoping to protect an individual against unexpected, irresponsible or excessive encroachment on his rights
by the state based on national traditions or a particular sense of justice which falls short of international law or
standards. 4
The Solicitor General maintains that because the respondents, as alter egos of the President, have raised the argument of
"national security" and "public safety," it is the duty of this Court to unquestioningly yield thereto, thus casting the
controversy to the realm of a political question. I do not agree. I believe that it is one case where the human and
constitutional light invoked by one party is so specific, substantial and clear that it cannot be overshadowed, much less,
nullified by simplistic generalities; worse, the Court neglects its duty under the Constitution when it allows the theory of
political question to serve as a convenient, and yet, lame excuse for evading what, to me, is its clearly pressing and
demandable duty to the Constitution.
During the oral arguments in this case, I asked the Solicitor General how one could validly defend the right of former
Senator Benigno S. Aquino, Jr., a Filipino, to return to the Philippines in 1983 and, at the same time, credibly deny the
right of Mr. Marcos, also a Filipino, to return to the Philippines in 1989. I still have not found a satisfactory answer to that
question. Instead, it has become clearer by the day that the drama today is the same drama in 1983 with the only
difference that the actors are in opposite roles, which really makes one hope, in the national interest, that the mistake in
1983 should not be made to persist in 1989.
To one who owes Mr. Marcos, his wife and followers absolutely nothing, personal, political or otherwise, the following are
the cogent and decisive propositions in this case —
1. Mr. Marcos is a Filipino and, as such, entitled to return to die and be buried in this country;
2. respondents have not shown any "hard evidence" or convincing proof why his right as a Filipino to
return should be denied him. All we have are general conclusions of "national security" and "public safety"
in avoidance of a specific demandable and enforceable constitutional and basic human right to return;
3. the issue of Marcos' return to the Philippines, perhaps more than any issue today, requires of all
members of the Court, in what appears to be an extended political contest, the "cold neutrality of an
impartial judge." It is only thus that we fortify the independence of this Court, with fidelity, not to any
person, party or group but to the Constitution and only to the Constitution.
ACCORDINGLY, I vote to GRANT the petition.
SARMIENTO, J., dissenting:
The only issue that saddles the Court is simply: "whether or not, in the exercise of the powers granted by the Constitution,
the President may prohibit the Marcoses from returning to the Philippines." 1 I therefore take exception to allusions 2 anent
"the capacity of the Marcoses to stir trouble even from afar." 3 I have legitimate reason to fear that my brethren, in passing
judgment on the Marcoses (insofar as their "capacity to stir trouble" is concerned), have overstepped the bounds of
judicial restraint, or even worse, convicted them without trial.
I also find quite strained what the majority would have as the "real issues" facing the Court: "The right to return to one's
country," pitted against "the right of travel and freedom of abode", and their supposed distinctions under international law,
as if such distinctions, under international law in truth and in fact exist. There is only one right involved here, whether
under municipal or international law: the light of travel, whether within one's own country, or to another, and the right to
return thereto. The Constitution itself makes no distinctions; let then, no one make a distinction. Ubi lex non distinguish
nec nos distinguere debemus.
As the majority would indeed have it, the issue is one of power: Does the Executive have the power to deny a citizen his
right to travel (back to the country or to another)? It is a question that, in essence, involves the application, and no more,
of the provisions of the 1987 Constitution:
interest of national security, public safety, or public health, as may be provided by law. 4
The majority says, with ample help from American precedents, that the President is possessed of the power, thus:
On these premises, we hold the view that although the 1987 Constitution imposes limitations on the
exercise of specific powers of the President, it maintains intact what is traditionally considered as within
the scope of "executive power." Corollarily, the powers of the President cannot be said to be limited only
to the specific powers enumerated in the Constitution. In other words, executive power is more than the
sum of specific powers so enumerated. 5
So also:
Faced with the problem of whether or not the time is right to allow the Marcoses to return to the
Philippines, the President is, under the Constitution, constrained to consider these basic principles in
arriving at a decision. More than that, having sworn to defend and uphold the Constitution, the President
has the obligation under the Constitution to protect the people, promote their welfare and advance the
national interest. It must be borne in mind that the Constitution, aside from being an allocation of power is
also a social contract whereby the people have surrendered their sovereign powers to the State for the
common good. Hence, lest the officers of the Government exercising the powers delegated by the people
forget and the servants of the people become rulers, the Constitution reminds everyone that "sovereignty
resides in the people and all government authority emanates from them." [Art. II, Sec. 1 . ] 6
And finally:
To the President, the problem is one of balancing the general welfare and the common good against the
exercise of rights of certain individuals. The power involved is the President's residual power to protect
the general welfare of the people. It is founded on the duty of the President, as steward of the people. To
paraphrase Theodore Roosevelt, it is not only the power of the President but also his duty to do anything
not forbidden by the Constitution or the laws that the needs of the nation demanded [See Corwin, supra,
at 153]. It is a power borne by the President's duty to preserve and defend the Constitution. It also may be
viewed as a power implicit in the President's duty to take care that the laws are faithfully executed [See
Hyman, The American President, where the author advances the view that an allowance of discretionary
power is unavoidable in any government and is best lodged in the President]. 7
I am not persuaded.
First: While the Chief Executive exercises powers not found expressly in the Charter, but has them by constitutional
implication* the latter must yield to the paramountcy of the Bill of Rights. According to Fernando: "A regime of
constitutionalism is thus unthinkable without an assurance of the primacy of a big of rights. Precisely a constitution exists
to assure that in the discharge of the governmental functions, the dignity that is the birthright of every human being is duly
safeguarded. To be true to its primordial aim a constitution must lay down the boundaries beyond which he's forbidden
territory for state action" 8
My brethren have not demonstrated, to my satisfaction, how the President may override the direct mandate of the
fundamental law. It will not suffice, so I submit, to say that the President's plenitude of powers, as provided in the
Constitution, or by sheer constitutional implication, prevail over express constitutional commands. "Clearly," so I borrow
J.B.L. Reyes, in his own right, a titan in the field of public law, "this argument ... rests ... not upon the text of the
(Constitution] ... but upon a mere inference therefrom." 9 For if it were, indeed, the intent of the Charter to create an
exception, that is, by Presidential action, to the right of travel or liberty of abode and of changing the same other than what
it explicitly says already ("limits prescribed by law" 10 or "upon lawful order of the court" 11 the Charter could have
specifically declared so. As it is, the lone deterrents to the right in question are: (1) decree of statute, or (2) lawful judicial
mandate. Had the Constitution intended a third exception, that is, by Presidential initiative, it could have so averred. It
would also have made the Constitution, as far as limits to the said right are concerned, come full circle: Limits by
legislative, judicial, and executive processes.
Obviously, none of the twin legal bars exist. There is no law banning the Marcoses from the country; neither is there any
court decree banishing him from Philippine territory.
It is to be noted that under the 1973 Constitution, the right to travel is worded as follows:
Sec. 5. The liberty of abode and of travel shall not be impaired except upon lawful order of the court, or
when necessary in the interest of national security, public safety, or public health. 12
Under this provision, the right may be abated: (1) upon a lawful court order, or (2) "when necessary in the interest of
national security, public safety, or public health. 13 Arguably, the provision enabled the Chief Executive (Marcos) to
moderate movement of citizens, which, Bernas says, justified such practices as "hamletting", forced relocations, or the
establishment of free-fire zones.14
The new Constitution, however, so it clearly appears, has divested the Executive's implied power. And, as it so appears,
the right may be impaired only "within the limits provided by law .15 The President is out of the picture.
Admittedly, the Chief Executive is the "sole" judge of all matters affecting national security 16 and foreign affairs; 17 the Bill
of Rights precisely, a form of check against excesses of officialdom is, in this case, a formidable barrier against
Presidential action. (Even on matters of State security, this Constitution prescribes limits to Executive's powers as
Commander-in-Chief.)
Second: Assuming, ex hypothesis that the President may legally act, the question that emerges is: Has it been proved
that Marcos, or his return, will, in fact, interpose a threat to the national security , public safety, or public health?" What
appears in the records are vehement insistences that Marcos does pose a threat to the national good and yet, at the
same time, we have persistent claims, made by the military top brass during the lengthy closed-door hearing on July 25,
1989, that "this Government will not fall" should the former first family in exile step on Philippine soil. which is which?
At any rate, it is my opinion that we can not leave that determination solely to the Chief Executive. The Court itself must
be content that the threat is not only clear, but more so, present.18
That the President "has the obligation under the Constitution to protect the people ... " 19 is an obligation open to no doubt.
But the question, and so I ask again and again, is: From whom? If we say "from Marcos," we unravel chinks in our political
armor. It also flies in the face of claims, so confidently asserted, that "this Government will not fall" even if we allowed
Marcos to return.
It flies, finally, in the face of the fact that a good number of the henchmen trusted allies, implementors of martial law, and
pathetic parasites of the ex-first couple are, in fact, in the Government, in the comfort of its offices, and or at the helm of
its key agencies. Let us not, therefore, joke ourselves of moral factors warranting the continued banishment of Marcos.
Morality is the last refuge of the self-righteous.
Third: The problem is not of balancing the general welfare against the exercise of individual liberties. 20 As I indicated, not
one shred of evidence, let alone solid evidence, other than surmises of possibilities, has been shown to justify the
'balancing act" referred to. Worse, these conjectures contradict contentions that as far as Philippine society is concerned,
Marcos is "history".
The power of the President, so my brethren declaim, "calls for the exercise of the President's power as protector of
peace. 21
This is the self-same falsehood Marcos foisted on the Filipino people to justify the authoritarian rule. It also means that we
are no better than he has.
That "[t]he power of the President to keep the peace is not limited merely to exercising the commander-in-chief powers in
times of emergency or to leading the State against external and internal threats to its existence" 22 is a bigger fantasy: It
not only summons the martial law decisions of pre-"EDSA" (especially with respect to the detestable Amendment No. 6), it
is inconsistent with the express provisions of the commander-in-chief clause of the 1987 Charter, a Charter that has
perceptibly reduced the Executive's powers vis-a-vis its 1973 counterpart. 23
II.
The undersigned would be lacking in candor to conceal his dislike, to say the least, for Marcos. Because of Marcos, the
writer of it's dissent lost a son His son's only "offense" was that he openly and unabatedly criticized the dictator, his
associates, and his military machinery. He would pay dearly for it; he was arrested and detained, without judicial warrant
or decision, for seven months and seven days. He was held incommunicado a greater part of the time, in the military
stockade of Camp Crame. In his last week in detention, he was, grudgingly, hospitalized (prison hospital) and confined for
chronic asthma. The deplorable conditions of his imprisonment exacerbated his delicate health beyond cure. He died, on
November 11, 1977, a martyr on the altar of the martial law apparatus.
The undersigned also counts himself as one of the victims of Marcos' ruthless apparatchiki. On August 14, 1979, he was,
along with former President Diosdado Macapagal, and Congressmen Rogaciano Mercado and Manuel Concordia,
charged, "ASSOed"and placed under house arrest, for "inciting to sedition" and "rumor mongering " 24 in the midst of the
distribution of Ang Demokrasya Sa Pilipinas (Democracy In the Philippines), a book extremely critical of martial rule,
published by him and former Congressman Concordia, authored by President Macapagal and translated into Tagalog by
Congressman Rogaciano Mercado. In addition, they were also all accused of libel in more than two dozens of criminal
complaints filed by the several military officers named in the "condemned" book as having violated the human rights of
dissenters, and for other crimes, in the office of the Provincial Fiscal of Rizal. It had to take the events at "EDSA" to set
them free from house arrest and these political offenses. I am for Marcos' return not because I have a score to settle with
him. Ditto's death or my arrest are scores that can not be settled.
I feel the ex-President's death abroad (presented in the dailies as 'imminent") would leave him 'unpunished for his crimes
to country and countrymen. If punishment is due, let this leadership inflict it. But let him stand trial and accord him due
process.
Modesty aside, I have staunchly and consistently advocated the human right of travel and movement and the liberty of
abode. 25 We would have betrayed our own Ideals if we denied Marcos his rights. It is his constitutional right, a right that
can not be abridged by personal hatred, fear, founded or unfounded, and by speculations of the "man's "capacity" "to stir
trouble" Now that the shoe is on the other foot, let no more of human rights violations be repeated against any one, friend
or foe. In a democratic framework, there is no this as getting even.
The majority started this inquiry on the question of power. I hold that the President, under the present Constitution and
existing laws, does not have it. Mandamus, I submit, lies.
Narvasa, Melencio-Herrera, Gancayco, Griño- Aquino, Medialdea and Regalado, JJ., concur.
Feliciano, J., is on leave.
Separate Opinions
FERNAN, C.J., concurring:
"The threats to national security and public order are real the mounting Communist insurgency, a simmering separatist
movement, a restive studentry, widespread labor disputes, militant farmer groups. . . . Each of these threats is an
explosive ingredient in a steaming cauldron which could blow up if not handled properly." 1
These are not my words. They belong to my distinguished colleague in the Court, Mr. Justice Hugo E. Gutierrez, Jr. But
they express eloquently the basis of my full concurrence to the exhaustive and well-written ponencia of Mme. Justice
Irene R. Cortes.
Presidential powers and prerogatives are not fixed but fluctuate. They are not derived solely from a particular
constitutional clause or article or from an express statutory grant. Their limits are likely to depend on the imperatives of
events and contemporary imponderables rather than on abstract theories of law. History and time-honored principles of
constitutional law have conceded to the Executive Branch certain powers in times of crisis or grave and imperative
national emergency. Many terms are applied to these powers: "residual," "inherent," 44 moral," "implied," "aggregate,"
'emergency." whatever they may be called, the fact is that these powers exist, as they must if the governance function of
the Executive Branch is to be carried out effectively and efficiently. It is in this context that the power of the President to
allow or disallow the Marcoses to return to the Philippines should be viewed. By reason of its impact on national peace
and order in these admittedly critical times, said question cannot be withdrawn from the competence of the Executive
Branch to decide.
And indeed, the return of the deposed President, his wife and children cannot but pose a clear and present danger to
public order and safety. One needs only to recall the series of destabilizing actions attempted by the so-called Marcos
loyalists as well as the ultra-rightist groups during the EDSA Revolution's aftermath to realize this. The most publicized of
these offensives is the Manila Hotel incident which occurred barely five (5) months after the People's Power Revolution.
Around 10,000 Marcos supporters, backed by 300 loyalist soldiers led by Brigadier General Jose Zumel and Lt. Col.
Reynaldo Cabauatan converged at the Manila Hotel to witness the oath-taking of Arturo Tolentino as acting president of
the Philippines. The public disorder and peril to life and limb of the citizens engendered by this event subsided only upon
the eventual surrender of the loyalist soldiers to the authorities.
Then followed the Channel 7, Sangley, Villamor, Horseshoe Drive and Camp Aguinaldo incidents. Military rebels waged
simultaneous offensives in different parts of Metro Manila and Sangley Point in Cavite. A hundred rebel soldiers took over
Channel 7 and its radio station DZBB. About 74 soldier rebels attacked Villamor Air Base, while another group struck at
Sangley Point in Cavite and held the 15th Air Force Strike wing commander and his deputy hostage. Troops on board
several vehicles attempted to enter Gate I of Camp Aguinaldo even as another batch of 200 soldiers encamped at
Horseshoe Village.
Another destabilization plot was carried out in April, 1987 by enlisted personnel who forced their way through Gate 1 of
Fort Bonifacio. They stormed into the army stockade but having failed to convince their incarcerated members to unite in
their cause, had to give up nine (9) hours later.
And who can forget the August 28, 1987 coup attempt which almost toppled the Aquino Government? Launched not by
Marcos loyalists, but by another ultra-rightist group in the military led by Col. Gregorio "Gringo" Honasan who remains at
large to date, this most serious attempt to wrest control of the government resulted in the death of many civilians.
Members of the so-called Black Forest Commando were able to cart away high-powered firearms and ammunition from
the Camp Crame Armory during a raid conducted in June 1988. Most of the group members were, however, captured in
Antipolo, Rizal. The same group was involved in an unsuccessful plot known as Oplan Balik Saya which sought the return
of Marcos to the country.
A more recent threat to public order, peace and safety was the attempt of a group named CEDECOR to mobilize civilians
from nearby provinces to act as blockading forces at different Metro Manila areas for the projected link-up of Marcos
military loyalist troops with the group of Honasan. The pseudo "people power" movement was neutralized thru
checkpoints set up by the authorities along major road arteries where the members were arrested or forced to turn back.
While not all of these disruptive incidents may be traced directly to the Marcoses, their occurrence militates heavily
against the wisdom of allowing the Marcoses' return. Not only will the Marcoses' presence embolden their followers
toward similar actions, but any such action would be seized upon as an opportunity by other enemies of the State, such
as the Communist Party of the Philippines and the NPA'S, the Muslim secessionists and extreme rightists of the RAM, to
wage an offensive against the government. Certainly, the state through its executive branch has the power, nay, the
responsibility and obligation, to prevent a grave and serious threat to its safety from arising.
Apparently lost amidst the debate on whether or not to allow the Marcoses to return to the Philippines is one factor, which
albeit, at first blush appears to be extra legal, constitutes a valid justification for disallowing the requested return. I refer to
the public pulse. It must be remembered that the ouster of the Marcoses from the Philippines came about as an
unexpected, but certainly welcomed, result of the unprecedented peoples power" revolution. Millions of our people braved
military tanks and firepower, kept vigil, prayed, and in countless manner and ways contributed time, effort and money to
put an end to an evidently untenable claim to power of a dictator. The removal of the Marcoses from the Philippines was a
moral victory for the Filipino people; and the installation of the present administration, a realization of and obedience to the
people's Will.
Failing in legal arguments for the allowance of the Marcoses' return, appeal is being made to sympathy, compassion and
even Filipino tradition. The political and economic gains we have achieved during the past three years are however too
valuable and precious to gamble away on purely compassionate considerations. Neither could public peace, order and
safety be sacrificed for an individual's wish to die in his own country. Verily in the balancing of interests, the scales tilt in
favor of presidential prerogative, which we do not find to have been gravely abused or arbitrarily exercised, to ban the
Marcoses from returning to the Philippines.
GUTIERREZ, JR., J., dissenting
"The Constitution ... is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection
all classes of men, at all times, and under all circumstances. No doctrine involving more pernicious consequences was
ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of
government." (Ex Parte Milligan, 4 Wall. 2; 18 L. Ed. 281 [1866])
Since our days as law students, we have proclaimed the stirring words of Ex Parte Milligan as self-evident truth. But faced
with a hard and delicate case, we now hesitate to qive substance to their meaning. The Court has permitted a basic
freedom enshrined in the Bill of Rights to be taken away by Government.
There is only one Bill of Rights with the same interpretation of liberty and the same guarantee of freedom for both unloved
and despised persons on one hand and the rest who are not so stigmatized on the other.
I am, therefore, disturbed by the majority ruling which declares that it should not be a precedent. We are interpreting the
Constitution for only one person and constituting him into a class by himself. The Constitution is a law for all classes of
men at all times. To have a person as one class by himself smacks of unequal protection of the laws.
With all due respect for the majority in the Court, I believe that the issue before us is one of rights and not of power. Mr.
Marcos is insensate and would not live if separated from the machines which have taken over the functions of his kidneys
and other organs. To treat him at this point as one with full panoply of power against whom the forces of Government
should be marshalled is totally unrealistic. The Government has the power to arrest and punish him. But does it have the
power to deny him his right to come home and die among familiar surroundings?
Hence, this dissent.
The Bill of Rights provides:
interest of national security, public safety, or public health, as may be provided by law. (Emphasis
supplied, Section 6, Art. 111, Constitution)
To have the petition dismissed, the Solicitor General repeats a ritual invocation of national security and public safety
which is hauntingly familiar because it was pleaded so often by petitioner Ferdinand E. Marcos to justify his acts under
martial law. There is, however, no showing of the existence of a law prescribing the limits of the power to impair and the
occasions for its exercise. And except for citing breaches of law and order, the more serious of which were totally
unrelated to Mr. Marcos and which the military was able to readily quell, the respondents have not pointed to any grave
exigency which permits the use of untrammeled Governmental power in this case and the indefinite suspension of the
constitutional right to travel.
The respondents' basic argument is that the issue before us is a political question beyond our jurisdiction to consider.
They contend that the decision to ban former President Marcos, and his family on grounds of national security and public
safety is vested by the Constitution in the President alone. The determination should not be questioned before this Court.
The President's finding of danger to the nation should be conclusive on the Court.
What is a political question?
In Vera v. Avelino (77 Phil. 192, 223 [1946], the Court stated:
xxxxxxxxx
It is a well-settled doctrine that political questions are not within the province of the judiciary, except to the
extent that power to deal with such questions has been conferred on the courts by express constitutional
or statutory provisions. It is not so easy, however, to define the phrase political question, nor to determine
what matters fall within its scope. It is frequently used to designate all questions that he outside the scope
of the judicial power. More properly, however, it means 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.
We defined a political question in Taniada v. Cuenco (103 Phil. 1051, 1066 [1957]), as follows:
In short, the term 'Political question' connotes, in legal parlance, what it means in ordinary parlance,
namely, a question of policy. In other words, in the language of Corpus Juris Secundum (supra), it refers
to 'those questions which, under the Constitution, are to be decided by the people in their sovereign
capacity, or in regard to which full discretionary authority has been delegated to the Legislature or
executive branch of the Government. It is concerned with issues dependent upon the wisdom, not
legality, of a particular measure.
The most often quoted definition of political question was made by Justice Wilham J. Brennan Jr., who penned the
decision of the United States Supreme Court in Baker v. Carr (369 US 186,82, S. Ct. 691, L. Ed. 2d. 663 [1962]). The
ingredients of a political question as formulated in Baker v. Carr are:
It is apparent that several formulations which vary slightly according to the settings in which the questions
arise may describe a political question, which Identifies it as essentially a function of the separation of
powers. 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
potentiality of embarrassment from multifarious pronouncements by various departments on one
question.
For a political question to exist, there must be in the Constitution a power vested exclusively in the President or Congress,
the exercise of which the court should not examine or prohibit. A claim of plenary or inherent power against a civil right
which claim is not found in a specific provision is dangerous. Neither should we validate a roving commission allowing
public officials to strike where they please and to override everything which to them represents evil. The entire Govern
ment is bound by the rule of law.
The respondents have not pointed to any provision of the Constitution which commits or vests the determination of the
question raised to us solely in the President.
The authority implied in Section 6 of the Bill of Rights itself does not exist because no law has been enacted specifying
the circumstances when the right may be impaired in the interest of national security or public safety. The power is in
Congress, not the Executive.
The closest resort to a textile demonstrable constitutional commitment of power may be found in the commander-in-chief
clause which allows the President to call out the armed forces in case of lawless violence, invasion or rebellion and to
suspend the privilege of the writ of habeas corpus or proclaim martial law in the event of invasion or rebellion, when the
public safety requires it.
There is, however, no showing, not even a claim that the followers of former President Marcos are engaging in rebellion or
that he is in a position to lead them. Neither is it claimed that there is a need to suspend the privilege of the writ of habeas
corpus or proclaim martial law because of the arrival of Mr. Marcos and his family. To be sure, there may be disturbances
but not of a magnitude as would compel this Court to resort to a doctrine of non- justiceability and to ignore a plea for the
enforcement of an express Bill of Rights guarantee.
The respondents themselves are hard-pressed to state who or what constitutes a Marcos "loyalist." The constant
insinuations that the "loyalist" group is heavily funded by Mr. Marcos and his cronies and that the "loyalists" engaging in
rallies and demonstrations have to be paid individual allowances to do so constitute the strongest indication that the hard
core "loyalists" who would follow Marcos right or wrong are so few in number that they could not possibly destabilize the
government, much less mount a serious attempt to overthrow it.
Not every person who would allow Mr. Marcos to come home can be tagged a "loyalist." It is in the best of Filipino
customs and traditions to allow a dying person to return to his home and breath his last in his native surroundings. Out of
the 103 Congressmen who passed the House resolution urging permission for his return, there are those who dislike Mr.
Marcos intensely or who suffered under his regime. There are also many Filipinos who believe that in the spirit of national
unity and reconciliation Mr. Marcos and his family should be permitted to return to the Philippines and that such a return
would deprive his fanatic followers of any further reason to engage in rallies and demonstrations.
The Court, however, should view the return of Mr. Marcos and his family solely in the light of the constitutional guarantee
of liberty of abode and the citizen's right to travel as against the respondents' contention that national security and public
safety would be endangered by a grant of the petition.
Apart from the absence of any text in the Constitution committing the issue exclusively to the President, there is likewise
no dearth of decisional data, no unmanageable standards which stand in the way of a judicial determination.
Section 6 of the Bill of Rights states categorically that the liberty of abode and of changing the same within the limits
prescribed by law may be impaired only upon a lawful order of a court. Not by an executive officer. Not even by the
President. Section 6 further provides that the right to travel, and this obviously includes the right to travel out of or back
into the Philippines, cannot be impaired except in the interest of national security, public safety, or public health, as may
be provided by law.
There is no law setting the limits on a citizen's right to move from one part of the country to another or from the Philippines
to a foreign country or from a foreign country to the Philippines. The laws cited by the Solicitor General immigration,
health, quarantine, passports, motor vehicle, destierro probation, and parole are all inapplicable insofar as the return of
Mr. Marcos and family is concerned. There is absolutely no showing how any of these statutes and regulations could
serve as a basis to bar their coming home.
There is also no disrespect for a Presidential determination if we grant the petition. We would simply be applying the
Constitution, in the preservation and defense of which all of us in Government, the President and Congress included, are
sworn to participate. Significantly, the President herself has stated that the Court has the last word when it comes to
constitutional liberties and that she would abide by our decision.
As early as 1983, it was noted that this Court has not been very receptive to the invocation of the political question
doctrine by government lawyers. (See Morales, Jr. .v Ponce Enrile, 121 SCRA 538 [1983]).
Many of those now occupying the highest positions in the executive departments, Congress, and the judiciary criticized
this Court for using what they felt was a doctrine of convenience, expediency, utility or subservience. Every major
challenge to the acts of petitioner Ferdinand E. Marcos under his authoritarian regime the proclamation of martial law, the
ratification of a new constitution, the arrest and detention of "enemies of the State" without charges being filed against
them, the dissolution of Congress and the exercise by the President of legislative powers, the trial of civilians for civil
offenses by military tribunals, the seizure of some of the country's biggest corporations, the taking over or closure of
newspaper offices, radio and television stations and other forms of media, the proposals to amend the Constitution, etc.
was invariably met by an invocation that the petition involved a political question. It is indeed poetic justice that the political
question doctrine so often invoked by then President Marcos to justify his acts is now being used against him and his
family. Unfortunately, the Court should not and is not allowed to indulge in such a persiflage. We are bound by the
Constitution.
The dim view of the doctrine's use was such that when the present Constitution was drafted, a broad definition of judicial
power was added to the vesting in the Supreme Court and statutory courts of said power.
The second paragraph of Section 1, Article VIII of the Constitution provides:
of the Government.
This new provision was enacted to preclude this Court from using the political question doctrine as a means to avoid
having to make decisions simply because they are too controversial, displeasing to the President or Congress,
inordinately unpopular, or which may be ignored and not enforced.
The framers of the Constitution believed that the free use of the political question doctrine allowed the Court during the
Marcos years to fall back on prudence, institutional difficulties, complexity of issues, momentousness of consequences or
a fear that it was extravagantly extending judicial power in the cases where it refused to examine and strike down an
exercise of authoritarian power. Parenthetically, at least two of the respondents and their counsel were among the most
vigorous critics of Mr. Marcos (the main petitioner) and his use of the political question doctrine. The Constitution was
accordingly amended. We are now precluded by its mandate from refusing to invalidate a political use of power through a
convenient resort to the question doctrine. We are compelled to decide what would have been non-justiceable under our
decisions interpreting earlier fundamental charters.
This is not to state that there can be no more political questions which we may refuse to resolve. There are still some
political questions which only the President, Congress, or a plebiscite may decide. Definitely, the issue before us is not
one of them.
The Constitution requires the Court "to determine whether or not there has been a grave abuse of discretion amounting to
lack or excess of jurisdiction."
How do we determine a grave abuse of discretion?
The tested procedure is to require the parties to present evidence. Unfortunately, considerations of national security do
not readily lend themselves to the presentation of proof before a court of justice. The vital information essential to an
objective determination is usually highly classified and it cannot be rebutted by those who seek to overthrow the
government. As early as Barcelon v. Baker (5 Phil. 87, 93 [19051), the Court was faced with a similar situation. It posed a
rhetorical question. If after investigating conditions in the Archipelago or any part thereof, the President finds that public
safety requires the suspension of the privilege of the writ of habeas corpus, can the judicial department investigate the
same facts and declare that no such conditions exist?
In the effort to follow the "grave abuse of discretion" formula in the second paragraph of Section 1, Article VIII of the
Constitution, the court granted the Solicitor General's offer that the military give us a closed door factual briefing with a
lawyer for the petitioners and a lawyer for the respondents present.
The results of the briefing call to mind the concurrence of Justice Vicente Abad Santos in Morales, Jr. v. Enrile, (121
SCRA 538, 592 [19831):
How can this Court determine the factual basis in order that it can ascertain whether or not the president
acted arbitrarily in suspending the writ when, in the truth words of Montenegro, with its very limited
machinery fit] cannot be in better position [than the Executive Branch] to ascertain or evaluate the
conditions prevailing in the Archipelago? (At p. 887). The answer is obvious. It must rely on the Executive
Branch which has the appropriate civil and military machinery for the facts. This was the method which
had to be used in Lansang. This Court relied heavily on classified information supplied by the military.
Accordingly, an incongruous situation obtained. For this Court, relied on the very branch of the
government whose act was in question to obtain the facts. And as should be expected the Executive
Branch supplied information to support its position and this Court was in no situation to disprove them. It
was a case of the defendant judging the suit. After all is said and done, the attempt by its Court to
determine whether or not the President acted arbitrarily in suspending the writ was a useless and futile
exercise.
There is still another reason why this Court should maintain a detached attitude and refrain from giving
the seal of approval to the act of the Executive Branch. For it is possible that the suspension of the writ
lacks popular support because of one reason or another. But when this Court declares that the
suspension is not arbitrary (because it cannot do otherwise upon the facts given to it by the Executive
Branch) it in effect participates in the decision-making process. It assumes a task which it is not equipped
to handle; it lends its prestige and credibility to an unpopular act.
The other method is to avail of judicial notice. In this particular case, judicial notice would be the only basis for determining
the clear and present danger to national security and public safety. The majority of the Court has taken judicial notice of
the Communist rebellion, the separatist movement, the rightist conspiracies, and urban terrorism. But is it fair to blame the
present day Marcos for these incidents? All these problems are totally unrelated to the Marcos of today and, in fact, are
led by people who have always opposed him. If we use the problems of Government as excuses for denying a person's
right to come home, we will never run out of justifying reasons. These problems or others like them will always be with us.
Significantly, we do not have to look into the factual bases of the ban Marcos policy in order to ascertain whether or not
the respondents acted with grave abuse of discretion. Nor are we forced to fall back upon judicial notice of the
implications of a Marcos return to his home to buttress a conclusion.
In the first place, there has never been a pronouncement by the President that a clear and present danger to national
security and public safety will arise if Mr. Marcos and his family are allowed to return to the Philippines. It was only after
the present petition was filed that the alleged danger to national security and public safety conveniently surfaced in the
respondents' pleadings. Secondly, President Aquino herself limits the reason for the ban Marcos policy to-41) national
welfare and interest and (2) the continuing need to preserve the gains achieved in terms of recovery and stability. (See
page 7, respondents' Comment at page 73 of Rollo). Neither ground satisfies the criteria of national security and public
safety. The President has been quoted as stating that the vast majority of Filipinos support her position. (The Journal,
front page, January 24,1989) We cannot validate their stance simply because it is a popular one. Supreme Court
decisions do not have to be popular as long as they follow the Constitution and the law. The President's original position
"that it is not in the interest of the nation that Marcos be allowed to return at this time" has not changed. (Manila Times,
front page, February 7, 1989). On February 11, 1989, the President is reported to have stated that "considerations of the
highest national good dictate that we preserve the substantial economic and political gains of the past three years" in
justifying her firm refusal to allow the return of Mr. Marcos despite his failing health. (Daily Globe, front page, February 15,
1989). "Interest of the nation national good," and "preserving economic and political gains," cannot be equated with
national security or public order. They are too generic and sweeping to serve as grounds for the denial of a constitutional
right. The Bill of Rights commands that the right to travel may not be impaired except on the stated grounds of national
security, public safety, or public health and with the added requirement that such impairment must be "as provided by
law." The constitutional command cannot be negated by mere generalizations.
There is an actual rebellion not by Marcos followers but by the New Peoples' Army. Feeding as it does on injustice,
ignorance, poverty, and other aspects at under-development, the Communist rebellion is the clearest and most present
danger to national security and constitutional freedoms. Nobody has suggested that one way to quell it would be to catch
and exile its leaders, Mr. Marcos himself was forced to flee the country because of "peoples' power." Yet, there is no
move to arrest and exile the leaders of student groups, teachers' organizations, pea ant and labor federations, transport
workers, and government unions whose threatened mass actions would definitely endanger national security and the
stability of government. We fail to see how Mr. Marcos could be a greater danger.
The fear that Communist rebels, Bangsa Moro secessionists, the Honasan ex-soldiers, the hard core loyalists, and other
dissatisfied elements would suddenly unite to overthrow the Republic should a dying Marcos come home is too
speculative and unsubstantial a ground for denying a constitutional right. It is not shown how extremists from the right and
the left who loathe each other could find a rallying point in the coming of Mr. Marcos.
The "confluence theory" of the Solicitor General or what the majority calls "catalytic effect," which alone sustains the claim
of danger to national security is fraught with perilous implications. Any difficult problem or any troublesome person can be
substituted for the Marcos threat as the catalysing factor. The alleged confluence of NPAS, secessionists, radical
elements, renegade soldiers, etc., would still be present. Challenged by any critic or any serious problem, the Government
can state that the situation threatens a confluence of rebel forces and proceed to ride roughshod over civil liberties in the
name of national security. Today, a passport is denied. Tomorrow, a newspaper may be closed. Public assemblies may
be prohibited. Human rights may be violated. Yesterday, the right to travel of Senators Benigno Aquino, Jr. and Jovito
Salonga was curtailed. Today, it is the right of Mr. Marcos and family. Who will be tomorrow's pariahs I deeply regret that
the Court's decision to use the political question doctrine in a situation where it does not apply raises all kinds of disturbing
possibilities.
I must emphasize that General Renato de Villa, the Chief of Staff of the Armed Forces, has personally assured the Court
that a rebellion of the above combined groups will not succeed and that the military is on top of the situation. Where then
is the clear danger to national security? The Court has taken judicial notice of something which even the military denies.
There would be severe strains on military capabilities according to General de Villa. There would be set-backs in the
expected eradication of the Communist threat. There would be other serious problems but all can be successfully
contained by the military. I must stress that no reference was made to a clear and present danger to national security as
would allow an overriding of the Bill of Rights.
The Solicitor General's argument that the failure of Congress to enact a statute defining the parameters of the right to
travel and to freely choose one's abode has constrained the President to fill in the vacuum, is too reminiscent of
Amendment No. 6 of the martial law Constitution to warrant serious consideration. Amendment No. 6 allowed Marcos to
issue decrees whenever the Batasang Pambansa failed or was unable to act adequately on any matter for any reason
that in his judgment required immediate action. When the Bill of Rights provides that a right may not be impaired except in
the interest of national security, public safety, or public health and further requires that a law must provide when such
specifically defined interests are prejudiced or require protection, the inaction of Congress does not give reason for the
respondents to assume the grounds for its impairment.
The fact that the Marcoses have been indicted before American federal courts does not obstruct us from ruling against an
unconstitutional assertion of power by Philippine officials. Let the United States apply its laws. We have to be true to our
own.
Mr. Marcos may be too ill to withstand the rigors of a transpacific flight. The agony of traveling while hooked up to
machines which have taken over the functions of his heart, lungs, and kidneys may hasten his death. The physical
condition of Mr. Marcos does not justify our ignoring or refusing to act on his claim to a basic right which is legally
demandable and enforceable. For his own good, it might be preferable to stay where he is. But he invokes a constitutional
right. We have no power to deny it to him.
The issuance of a passport may be discretionary but it should not be withheld if to do so would run counter to a
constitutional guarantee. Besides, the petitioners are not asking for passports and nothing else. Any travel documents or
any formal lifting of the Marcos ban as would allow international airlines to sell them tickets would suffice.
With all due respect for the majority opinion, I disagree with its dictum on the right to travel. I do not think we should
differentiate the right to return home from the right to go abroad or to move around in the Philippines. If at all, the right to
come home must be more preferred than any other aspect of the right to travel. It was precisely the banning by Mr.
Marcos of the right to travel by Senators Benigno Aquino, Jr., Jovito Salonga, and scores of other "undesirables" and
"threats to national security" during that unfortunate period which led the framers of our present Constitution not only to re-
enact but to strengthen the declaration of this right. Media often asks, "what else is new?" I submit that we now have a
freedom loving and humane regime. I regret that the Court's decision in this case sets back the gains that our country has
achieved in terms of human rights, especially human rights for those whom we do not like or those who are against us.
The respondent Secretary of Foreign Affairs, Raul S. Manglapus has disclosed a list of former dictators who were barred
by their successors from returning to their respective countries. There is no showing that the countries involved have
constitutions which guarantee the liberty of abode and the freedom to travel and that despite such constitutional
protections, the courts have validated the "ban a return" policy. Neither is it shown that the successors of the listed
dictators are as deeply committed to democratic principles and as observant of constitutional protections as President
Aquino.
It is indeed regrettable that some followers of the former President are conducting a campaign to sow discord and to
divide the nation. Opposition to the government no matter how odious or disgusting is, however, insufficient ground to
ignore a constitutional guarantee.
During the protracted deliberations on this case, the question was asked is the Government helpless to defend itself
against a threat to national security? Does the President have to suspend the privilege of the writ of habeas corpus or
proclaim martial law? Can she not take less drastic measures?
Of course, the Government can act. It can have Mr. Marcos arrested and tried in court. The Government has more than
ample powers under eixisting law to deal with a person who transgresses the peace and imperils public safety. But the
denial of travel papers is not one of those powers because the Bill of Rights says so. There is no law prescribing exile in a
foreign land as the penalty for hurting the Nation.
Considering all the foregoing, I vote to GRANT the petition.
CRUZ, J., dissenting:
It is my belief that the petitioner, as a citizen of the Philippines, is entitled to return to and live-and die-in his own country. I
say this with a heavy heart but say it nonetheless. That conviction is not diminished one whit simply because many
believe Marcos to be beneath contempt and undeserving of the very liberties he flounted when he was the absolute ruler
of this land.
The right of the United States government to detain him is not the question before us, nor can we resolve it. The question
we must answer is whether or not, assuming that Marcos is permitted to leave Hawaii (which may depend on the action
we take today), the respondents have acted with grave abuse of discretion in barring him from his own country.
My reluctant conclusion is that they have, absent the proof they said they were prepared to offer, but could not, that the
petitioner's return would prejudice the security of the State.
I was the one who, in the open hearing held on June 27,1989, asked the Solicitor General if the government was prepared
to prove the justification for opposing the herein petition, i. that it had not acted arbitrarily. He said it was. Accordingly, the
Court, appreciating the classified nature of the information expected, scheduled a closed-door hearing on July 25,1988.
The Solicitor General and three representatives from the military appeared for the respondents, together with former
Senator Arturo M. Tolentino, representing the petitioners.
In about two hours of briefing, the government failed dismally to show that the return of Marcos dead or alive would pose
a threat to the national security as it had alleged. The fears expressed by its representatives were based on mere
conjectures of political and economic destabilization without any single piece of concrete evidence to back up their
apprehensions.
Amazingly, however, the majority has come to the conclusion that there exist "factual bases for the President's decision"
to bar Marcos's return. That is not my recollection of the impressions of the Court after that hearing.
In holding that the President of the Philippines has residual powers in addition to the specific powers granted by the
Constitution, the Court is taking a great leap backward and reinstating the discredited doctrine announced in Planas v. Gil
(67 Phil. 62). This does not square with the announced policy of the Constitutional Commission, which was precisely
to limit rather than expand presidential powers, as a reaction to the excesses of the past dictatorship.
I can only repeat Justice Black's wry observation in the Steel Seizure Case (343 U.S. 579) that if it was true that the
President had been granted the totality of executive power, "it is difficult to see why our forefathers bothered to add
several specific items, including some trifling ones, . . . I cannot accept the view that this clause is a grant in bulk of all
conceivable executive power but regard it as an allocation to the presidential office of the generic powers thereafter
stated."
I have no illusion that the stand I am taking will be met with paeans of praise, considering that Marcos is perhaps the most
detested man in the entire history of our country. But we are not concerned here with popularity and personalities. As a
judge, I am not swayed by what Justice Cardozo called the "hooting throng" that may make us see things through the
prisms of prejudice. I bear in mind that when I sit in judgment as a member of this Court, I must cast all personal feelings
aside.
The issue before us must be resolved with total objectivity, on the basis only of the established facts and the applicable
law and not of wounds that still fester and scars that have not healed. And not even of fear, for fear is a phantom. That
phantom did not rise when the people stood fast at EDSA against the threat of total massacre in defense at last of their
freedom.
I cannot turn back on the lessons of liberty that I taught for more than three decades as a professor of Constitutional Law.
These principles have not changed simply because I am now on the Court or a new administration is in power and the
shoe is on the other foot.
Like the martyred Ninoy Aquino who also wanted to come back to the Philippines against the prohibitions of the
government then, Marcos is entitled to the same right to travel and the liberty of abode that his adversary invoked. These
rights are guaranteed by the Constitution to all individuals, including the patriot and the homesick and the prodigal son
returning, and tyrants and charlatans and scoundrels of every stripe.
PARAS, J., dissenting:
I dissent. Already, some people refer to us as a nation without discipline. Are we ready to be also called a society without
compassion?
The issue as to whether or not former President Ferdinand E. Marcos should be allowed to return to the Philippines may
be resolved by answering two simple questions: Does he have the right to return to his own country and should national
safety and security deny him this right?
There is no dispute that the former President is still a Filipino citizen and both under the Universal Declaration of Human
Rights and the 1987 Constitution of the Philippines, he has the right to return to his own country except only if prevented
by the demands of national safety and national security.
Our Armed Forces have failed to prove this danger. They are bereft of hard evidence, and all they can rely on is sheer
speculation. True, there is some danger but there is no showing as to the extent.
It is incredible that one man alone together with his family, who had been ousted from this country by popular will, can
arouse an entire country to rise in morbid sympathy for the cause he once espoused.
It is therefore clear to me, all other opinions to the contrary notwithstanding, that the former President should be allowed
to return to our country under the conditions that he and the members of his family be under house arrest in his hometown
in Ilocos Norte, and should President Marcos or any member of his family die, the body should not be taken out of the
municipality of confinement and should be buried within ten (10) days from date.
If we do this, our country shall have maintained its regard for fundamental human rights, for national discipline, and for
human compassion.
PADILLA, J., dissenting:

I dissent. As I see it, the core issue in this case is, which right will prevail in the conflict between the right of a Filipino,
Ferdinand E. Marcos, to return to the Philippines, and the right of the Philippine Government to bar such return in the
interest of national security and public safety. In this context, the issue is clearly justiciable involving, as it does, colliding
assertions of individual right and governmental power. Issues of this nature more than explain why the 1986 Constitutional
Commission, led by the illustrious former Chief Justice Roberto Concepcion, incorporated in the 1987 Constitution, the
new provision on the power of Judicial Review, viz:
of the Government. Article VIII, Section 1, par. 2; (Emphasis supplied)
Mr. Marcos invokes in his favor the specific and precise constitutional right of every Filipino to travel which, in the
language of the Constitution, shall not be impaired "except in the interest of national security, public safety, or public
health, as may be provided by law" (Art. III, Sec. 6). That the right to travel comprises the right to travel within the country,
to travel out of the country and to return to the country (Philippines), is hardly disputable. Short of all such components,
the right to travel is meaningless. The real question arises in the interpretation of the qualifications attached by the
Constitution to such right to travel.
Petitioners contend that, in the absence of restricting legislation, the right to travel is absolute. I do not agree. It is my view
that, with or without restricting legislation, the interest of national security, public safety or public health can justify and
even require restrictions on the right to travel, and that the clause "as may be provided by law" contained in Article III,
Section 6 of the 1987 Constitution merely declares a constitutional leave or permission for Congress to enact laws that
may restrict the right to travel in the interest of national security, public safety or public health. I do not, therefore, accept
the petitioners' submission that, in the absence of enabling legislation, the Philippine Government is powerless to restrict
travel even when such restriction is demanded by national security, public safety or public health, The power of the State,
in particular cases, to restrict travel of its citizens finds abundant support in the police power of the state wich may be
exercised to preserve and maintain government as well as promote the general welfare of the greatest number of people.
And yet, the power of the State, acting through a government in authority at any given time, to restrict travel, even if
founded on police power, cannot be absolute and unlimited under all circumstances, much less, can it be arbitrary and
irrational.
Mr. Marcos, I repeat, comes before the Court as a Filipino, invoking a specific constitutional right, i.e., the right to return to
the country. 1 Have the respondents presented sufficient evidence to offset or override the exercise of this right invoked by
Mr. Marcos? Stated differently, have the respondents shown to the Court sufficient factual bases and data which would
justify their reliance on national security and public safety in negating the right to return invoked by Mr. Marcos?
I have given these questions a searching examination. I have carefully weighed and assessed the "briefing" given the
Court by the highest military authorities of the land last 28 July 1989. 1 have searched, but in vain, for convincing
evidence that would defeat and overcome the right of Mr. Marcos as a Filipino to return to this country. It appears to me
that the apprehensions entertained and expressed by the respondents, including those conveyed through the military, do
not, with all due respect, escalate to proportions of national security or public safety. They appear to be more speculative
than real, obsessive rather than factual. Moreover, such apprehensions even if translated into realities, would be "under
control," as admitted to the Court by said military authorities, given the resources and facilities at the command of
government. But, above all, the Filipino people themselves, in my opinion, will know how to handle any situation brought
about by a political recognition of Mr. Marcos' right to return, and his actual return, to this country. The Court, in short,
should not accept respondents' general apprehensions, concerns and perceptions at face value, in the light of a
countervailing and even irresistible, specific, clear, demandable, and enforceable right asserted by a Filipino.
Deteriorating political, social, economic or exceptional conditions, if any, are not to be used as a pretext to justify
derogation of human rights. 2
As a member of the United Nations, the Philippines has obligations under its charter. By adopting the generally accepted
principles of international law as part of the law of the land, (Art. II, Sec. 2 of the Constitution), the Philippine government
cannot just pay lip service to Art. 13, par. 2 of the Universal Declaration of Human Rights which provides that everyone
has the right to leave any country, including his own, and to return to his country. This guarantee is reiterated in Art. XII,
par. 2 of the International Covenant on Civil and Political Rights which states that "no one shall be arbitrarily deprived of
the right to enter his own country." (Emphasis supplied) "Arbitrary" or "arbitrarily" was specifically chosen by the drafters of
the Covenant 3 hoping to protect an individual against unexpected, irresponsible or excessive encroachment on his rights
by the state based on national traditions or a particular sense of justice which falls short of international law or
standards. 4
The Solicitor General maintains that because the respondents, as alter egos of the President, have raised the argument of
"national security" and "public safety," it is the duty of this Court to unquestioningly yield thereto, thus casting the
controversy to the realm of a political question. I do not agree. I believe that it is one case where the human and
constitutional light invoked by one party is so specific, substantial and clear that it cannot be overshadowed, much less,
nullified by simplistic generalities; worse, the Court neglects its duty under the Constitution when it allows the theory of
political question to serve as a convenient, and yet, lame excuse for evading what, to me, is its clearly pressing and
demandable duty to the Constitution.
During the oral arguments in this case, I asked the Solicitor General how one could validly defend the right of former
Senator Benigno S. Aquino, Jr., a Filipino, to return to the Philippines in 1983 and, at the same time, credibly deny the
right of Mr. Marcos, also a Filipino, to return to the Philippines in 1989. I still have not found a satisfactory answer to that
question. Instead, it has become clearer by the day that the drama today is the same drama in 1983 with the only
difference that the actors are in opposite roles, which really makes one hope, in the national interest, that the mistake in
1983 should not be made to persist in 1989.
To one who owes Mr. Marcos, his wife and followers absolutely nothing, personal, political or otherwise, the following are
the cogent and decisive propositions in this case-
1. Mr. Marcos is a Filipino and, as such, entitled to return to die and be buried in this country;
2. respondents have not shown any "hard evidence" or convincing proof why his right as a Filipino to
return should be denied him. All we have are general conclusions of "national security" and "public safety"
in avoidance of a specific demandable and enforceable constitutional and basic human right to return;
3. the issue of Marcos' return to the Philippines, perhaps more than any issue today, requires of all
members of the Court, in what appears to be an extended political contest, the "cold neutrality of an
impartial judge." It is only thus that we fortify the independence of this Court, with fidelity, not to any
person, party or group but to the Constitution and only to the Constitution.
ACCORDINGLY, I vote to GRANT the petition.
SARMIENTO, J., dissenting:
The only issue that saddles the Court is simply: "whether or not, in the exercise of the powers granted by the Constitution,
the President may prohibit the Marcoses from returning to the Philippines." 1 I therefore take exception to allusions 2 anent
"the capacity of the Marcoses to stir trouble even from afar." 3 I have legitimate reason to fear that my brethren, in passing
judgment on the Marcoses (insofar as their "capacity to stir trouble" is concerned), have overstepped the bounds of
judicial restraint, or even worse, convicted them without trial.
I also find quite strained what the majority would have as the "real issues" facing the Court: "The right to return to one's
country," pitted against "the right of travel and freedom of abode", and their supposed distinctions under international law,
as if such distinctions, under international law in truth and in fact exist. There is only one right involved here, whether
under municipal or international law: the light of travel, whether within one's own country, or to another, and the right to
return thereto. The Constitution itself makes no distinctions; let then, no one make a distinction. Ubi lex non distinguish
nec nos distinguere debemus.
As the majority would indeed have it, the issue is one of power: Does the Executive have the power to deny a citizen his
right to travel (back to the country or to another)? It is a question that, in essence, involves the application, and no more,
of the provisions of the 1987 Constitution:
interest of national security, public safety, or public health, as may be provided by law. 4
The majority says, with ample help from American precedents, that the President is possessed of the power, thus:
On these premises, we hold the view that although the 1987 Constitution imposes limitations on the
exercise of specific powers of the President, it maintains intact what is traditionally considered as within
the scope of "executive power." Corollarily, the powers of the President cannot be said to be limited only
to the specific powers enumerated in the Constitution. In other words, executive power is more than the
sum of specific powers so enumerated. 5
So also:
Faced with the problem of whether or not the time is right to allow the Marcoses to return to the
Philippines, the President is, under the Constitution, constrained to consider these basic principles in
arriving at a decision. More than that, having sworn to defend and uphold the Constitution, the President
has the obligation under the Constitution to protect the people, promote their welfare and advance the
national interest. It must be borne in mind that the Constitution, aside from being an allocation of power is
also a social contract whereby the people have surrendered their sovereign powers to the State for the
common good. Hence, lest the officers of the Government exercising the powers delegated by the people
forget and the servants of the people become rulers, the Constitution reminds everyone that "sovereignty
resides in the people and all government authority emanates from them." [Art. II, Sec. 1 . ] 6
And finally:
To the President, the problem is one of balancing the general welfare and the common good against the
exercise of rights of certain individuals. The power involved is the President's residual power to protect
the general welfare of the people. It is founded on the duty of the President, as steward of the people. To
paraphrase Theodore Roosevelt, it is not only the power of the President but also his duty to do anything
not forbidden by the Constitution or the laws that the needs of the nation demanded [See Corwin, supra,
at 153]. It is a power borne by the President's duty to preserve and defend the Constitution. It also may be
viewed as a power implicit in the President's duty to take care that the laws are faithfully executed [See
Hyman, The American President, where the author advances the view that an allowance of discretionary
power is unavoidable in any government and is best lodged in the President]. 7
I am not persuaded.
First: While the Chief Executive exercises powers not found expressly in the Charter, but has them by constitutional
implication* the latter must yield to the paramountcy of the Bill of Rights. According to Fernando: "A regime of
constitutionalism is thus unthinkable without an assurance of the primacy of a big of rights. Precisely a constitution exists
to assure that in the discharge of the governmental functions, the dignity that is the birthright of every human being is duly
safeguarded. To be true to its primordial aim a constitution must lay down the boundaries beyond which he's forbidden
territory for state action" 8
My brethren have not demonstrated, to my satisfaction, how the President may override the direct mandate of the
fundamental law. It will not suffice, so I submit, to say that the President's plenitude of powers, as provided in the
Constitution, or by sheer constitutional implication, prevail over express constitutional commands. "Clearly," so I borrow
J.B.L. Reyes, in Ms own right, a titan in the field of public law, "this argument ... rests ... not upon the text of the
(Constitution] ... but upon a mere inference therefrom." 9 For if it were, indeed, the intent of the Charter to create an
exception, that is, by Presidential action, to the right of travel or liberty of abode and of changing the same other than what
it explicitly says already ("limits prescribed by law" 10 or "upon lawful order of the court" 11 the Charter could have
specifically declared so. As it is, the lone deterrents to the right in question are: (1) decree of statute, or (2) lawful judicial
mandate. Had the Constitution intended a third exception, that is, by Presidential initiative, it could have so averred. It
would also have made the Constitution, as far as limits to the said right are concerned, come full circle: Limits by
legislative, judicial, and executive processes.
Obviously, none of the twin legal bars exist. There is no law banning the Marcoses from the country; neither is there any
court decree banishing him from Philippine territory.
It is to be noted that under the 1973 Constitution, the right to travel is worded as follows:
Sec. 5. The liberty of abode and of travel shall not be impaired except upon lawful order of the court, or
when necessary in the interest of national security, public safety, or public health. 12
Under this provision, the right may be abated: (1) upon a lawful court order, or (2) "when necessary in the interest of
national security, public safety, or public health. 13 Arguably, the provision enabled the Chief Executive (Marcos) to
moderate movement of citizens, which, Bernas says, justified such practices as "hamletting", forced relocations, or the
establishment of free-fire zones.14
The new Constitution, however, so it clearly appears, has divested the Executive's implied power. And, as it so appears,
the right may be impaired only "within the limits provided by law .15 The President is out of the picture.
Admittedly, the Chief Executive is the "sole" judge of all matters affecting national security 16 and foreign affairs; 17 the Bill
of Rights precisely, a form of check against excesses of officialdom is, in this case, a formidable barrier against
Presidential action. (Even on matters of State security, this Constitution prescribes limits to Executive's powers as
Commander-in-Chief.)
Second: Assuming, ex hypothesis that the President may legally act, the question that emerges is: Has it been proved
that Marcos, or his return, will, in fact, interpose a threat to the national security , public safety, or public health?" What
appears in the records are vehement insistences that Marcos does pose a threat to the national good and yet, at the
same time, we have persistent claims, made by the military top brass during the lengthy closed-door hearing on July 25,
1989, that "this Government will not fall" should the former first family in exile step on Philippine soil. which is which?
At any rate, it is my opinion that we can not leave that determination solely to the Chief Executive. The Court itself must
be content that the threat is not only clear, but more so, present. 18
That the President "has the obligation under the Constitution to protect the people ... " 19 is an obligation open to no doubt.
But the question, and so I ask again and again, is: From whom? If we say "from Marcos," we unravel chinks in our political
armor. It also flies in the face of claims, so confidently asserted, that "this Government will not fall" even if we allowed
Marcos to return.
It flies, finally, in the face of the fact that a good number of the henchmen trusted allies, implementors of martial law, and
pathetic parasites of the ex-first couple are, in fact, in the Government, in the comfort of its offices, and or at the helm of
its key agencies. Let us not, therefore, joke ourselves of moral factors warranting the continued banishment of Marcos.
Morality is the last refuge of the self-righteous.
Third: The problem is not of balancing the general welfare against the exercise of individual liberties. 20 As I indicated, not
one shred of evidence, let alone solid evidence, other than surmises of possibilities, has been shown to justify the
'balancing act" referred to. Worse, these conjectures contradict contentions that as far as Philippine society is concerned,
Marcos is "history".
The power of the President, so my brethren declaim, "calls for the exercise of the President's power as protector of
peace. 21
This is the self-same falsehood Marcos foisted on the Filipino people to justify the authoritarian rule. It also means that we
are no better than he has.
That "[t]he power of the President to keep the peace is not limited merely to exercising the commander-in-chief powers in
times of emergency or to leading the State against external and internal threats to its existence" 22 is a bigger fantasy: It
not only summons the martial law decisions of pre-"EDSA" (especially with respect to the detestable Amendment No. 6), it
is inconsistent with the express provisions of the commander-in-chief clause of the 1987 Charter, a Charter that has
perceptibly reduced the Executive's powers vis-a-vis its 1973 counterpart. 23
II.
The undersigned would be lacking in candor to conceal his dislike, to say the least, for Marcos. Because of Marcos, the
writer of it's dissent lost a son His son's only "offense" was that he openly and unabatedly criticized the dictator, his
associates, and his military machinery. He would pay dearly for it; he was arrested and detained, without judicial warrant
or decision, for seven months and seven days. He was held incommunicado a greater part of the time, in the military
stockade of Camp Crame. In his last week in detention, he was, grudgingly, hospitalized (prison hospital) and confined for
chronic asthma. The deplorable conditions of his imprisonment exacerbated his delicate health beyond cure. He died, on
November 11, 1977, a martyr on the altar of the martial law apparatus.
The undersigned also counts himself as one of the victims of Marcos' ruthless apparatchiki. On August 14, 1979, he was,
along with former President Diosdado Macapagal, and Congressmen Rogaciano Mercado and Manuel Concordia,
charged, "ASSOed"and placed under house arrest, for "inciting to sedition" and "rumor mongering " 24 in the midst of the
distribution of Ang Demokrasya Sa Pilipinas (Democracy In the Philippines), a book extremely critical of martial rule,
published by him and former Congressman Concordia, authored by President Macapagal and translated into Tagalog by
Congressman Rogaciano Mercado. In addition, they were also all accused of libel in more than two dozens of criminal
complaints filed by the several military officers named in the "condemned" book as having violated the human rights of
dissenters, and for other crimes, in the office of the Provincial Fiscal of Rizal. It had to take the events at "EDSA" to set
them free from house arrest and these political offenses. I am for Marcos' return not because I have a score to settle with
him. Ditto's death or my arrest are scores that can not be settled.
I feel the ex-President's death abroad (presented in the dailies as 'imminent") would leave him 'unpunished for Ms crimes
to country and countrymen. If punishment is due, let this leadership inflict it. But let him stand trial and accord him due
process.
Modesty aside, I have staunchly and consistently advocated the human right of travel and movement and the liberty of
abode. 25 We would have betrayed our own Ideals if we denied Marcos his rights. It is his constitutional right, a right that
can not be abridged by personal hatred, fear, founded or unfounded, and by speculations of the "man's "capacity" "to stir
trouble" Now that the shoe is on the other foot, let no more of human rights violations be repeated against any one, friend
or foe. In a democratic framwork, there is no this as getting even.
The majority started this inquiry on the question of power. I hold that the President, under the present Constitution and
existing laws, does not have it. Mandamus, I submit, lies.
EN BANC
[G.R. No. 88211. October 27, 1989.]
FERDINAND E. MARCOS, IMELDA R. MARCOS, FERDINAND R. MARCOS. JR., IRENE M. ARANETA,

IMEE M. MANOTOC, TOMAS MANOTOC, GREGORIO ARANETA, PACIFICO E. MARCOS, NICANOR
YÑIGUEZ and PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), represented by its
President, CONRADO F. ESTRELLA, Petitioners, v. HONORABLE RAUL MANGLAPUS, CATALINO
MACARAIG, SEDFREY ORDOÑEZ, MIRIAM DEFENSOR SANTIAGO, FIDEL RAMOS, RENATO DE
VILLA, in their capacity as Secretary of Foreign Affairs, Executive Secretary, Secretary of
Justice, Immigration Commissioner, Secretary of National Defense and Chief of Staff,
respectively, Respondents.
SYLLABUS
CRUZ, J., dissenting:chanrob1es virtual 1aw library
1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT TO TRAVEL AND RETURN TO ONE’S COUNTRY; GRANT
THEREOF STILL HOLDS. — The death of Marcos has not plunged the nation into paroxysms of grief as the
so-called "loyalists" had hoped. By and large, it has been met with only passing interest if not outright
indifference from the people. Clearly, the discredited dictator is in death no El Cid. Marcos dead is only an
unpleasant memory, not a bolt of lightning to whip the blood. This only shows that if he was at all a threat
to the national security when he was already moribund, that feeble threat has died with him. As the
government stresses, he has been reduced to a non-person (which makes me wonder why it is still afraid
of him). His cadaver is not even regarded as a symbol of this or that or whatever except by his fanatical
followers. It is only a dead body waiting to be interred in this country. This is a tempest in a teapot. We
have more important things to do than debating over a corpse that deserves no kinder fate than
dissolution and oblivion. I say let it be brought home and, buried deep and let us be done with it forever.
PARAS, J., dissenting:chanrob1es virtual 1aw library
1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT TO TRAVEL AND TO RETURN TO ONE’S COUNTRY;
CITIZEN THOUGH ALREADY DEAD STILL ENTITLED TO CERTAIN RIGHTS. — The former President,
although already dead, is still entitled to certain rights. It is not correct to say that a dead man, since he is
no longer a human being, has ceased to have rights. For instance, our Revised Penal Code prohibits the
commission of libel against a deceased individual. And even if we were to assume the non-existence
anymore of his human rights what about the human rights of his widow and the other members of his
family?
2. ID.; ID.; ID.; PETITION TO RETURN; REASONS FOR THE REFUSAL TO GRANT IT REMAINED
UNPROVED. — Up to now, the alleged threats to national security have remained unproved and
consequently, unpersuasive. Our Armed Forces can easily control any possible uprising or political and
military destabilization. In fact, the converse appears to be nearer the truth, that is, if we do not allow the
remains to come, more trouble may be expected.
3. ID.; ID.; RECONCILIATION WOULD BE ACCELERATED IF THE PETITION TO RETURN IS GRANTED. —

Reconciliation can proceed at a much faster pace if the petition for the return is granted. To refuse the
request can mean a hardening of resistance against the well-intentioned aim of the administration. Upon
the other hand, to grant the petition may well soften the hearts of the oppositionists; paving the way for a
united citizenry. The entire world will surely applaud our government’s act of mercy. As Shakespeare once
wrote "the quality of mercy is not strained." Surely, compassion is the better part of government. Remove
mercy, and you remove the best reason against civil strife, which if not abated can turn our country into a
mainstream of fiery dissent and in the end, as one great man has put it, the question will no longer be
what is right, but what is left.
PADILLA, J., dissenting:chanrob1es virtual 1aw library
1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT TO TRAVEL AND TO RETURN TO ONE’S COUNTRY;
RIGHT OF A CITIZEN TO BE BURIED IN HIS HOMELAND. — The first cogent and decisive proposition in
this case is that "Mr. Marcos is a Filipino and, as such, entitled to return to, die and be buried in this
country." Respondents have succeeded in denying Mr. Marcos the first two (2) rights, i.e. to return to and
die in this country. The remaining right of this Filipino that cries out for vindication at this late hour is the
right to be buried in this country. Will the respondents be allowed to complete the circle of denying the
constitutional and human right of Mr. Marcos to travel which, as stated in my dissenting opinion, includes
the right to return to, die and be buried in this country? The answer should be in the negative if the
Constitution is to still prevail; the answer should be in the negative if we are to avoid the completely
indefensible act of denying a Filipino the last right to blend his mortal remains with a few square feet of
earth in the treasured land of his birth.
2. ID.; ID.; ID.; ID.; A CONSTITUTIONAL RIGHT. — The constitutional and human right to be buried in
this country would apply to any Filipino, except Mr. Marcos, because he was a dictator and he plundered
the country. This is the most irrelevant argument that can be raised at this time. For, our democracy is
built on the fundamental assumption (so we believe) that the Constitution and all its guarantees apply to
all Filipinos, whether dictator or pauper, learned or ignorant, religious or agnostic, as long as he is a
Filipino. If a live Marcos returning to this country did not pose a serious threat to national security, the
situation cannot be any worse with a dead Marcos returning.
3. ID.; ID.; ID.; ID.; DENIAL OF RIGHT A THREAT TO NATIONAL SECURITY POSED BY SUPPORTERS. — It
is said that, while a dead Marcos has been rendered impotent to threaten national security, his supporters
would pose that threat to national security. This argument is untenable as it is without merit. As I see it,
Marcos’ supporters pose a greater threat to peace and order, with Marcos deprived of his right to burial in
this country. On the other hand, if the remains of Mr. Marcos are brought to the country and allowed the
burial to which he is constitutionally and humanly entitled, Marcos’ supporters would be deprived of an
otherwise potent argument — so conducive to mass protests and even violence — that their idol has been
cruelly denied the right to be buried in his homeland.
4. ID.; ID.; ID.; ID.; RIGHT TRANSCENDS DAY OF BIRTH UNTIL DAY OF BURIAL. — It is also said that Mr.
Marcos, in cadaver form, has no constitutional or human rights, to speak of. This contention entirely begs
the issue. In the first place, one cannot overlook that the right of Mr. Marcos, as a Filipino, to be buried in
this country, is asserted not for the first time after his death. It was vigorously asserted long before his
death. But, more importantly, the right of every Filipino to be buried in his country, is part of a continuing
right that starts from birth and ends only on the day he is finally laid to rest in his country. The majority
resolution, in effect, bans Mr. Marcos’ burial in this country now. Without in any way affecting my respect
and regard for my brethren and sisters in the majority, I am deeply concerned and greatly disturbed that,
with their decision banning a dead Marcos from burial in this country, they have passed an opportunity to
defuse a constitutional crisis that, in my humble assessment, threatens to ignite an already divided nation.
Regrettably, they have ignored the constitutional dimension of the problem rooted in the ageless and
finest tradition of our people for respect and deference to the dead. What predictably follows will be a
continuing strife, among our people, of unending hatred, recriminations and retaliations. God save this
country!
5. ID.; ID.; ID.; ID.; IMMEDIATE RETURN AND BURIAL IN THE PHILIPPINES OF FORMER PRESIDENT
FERDINAND E. MARCOS, ENJOINED. — The writer’s vote is for this Court to ORDER the respondents to
allow the immediate return and burial in the Republic of the Philippines of former President Ferdinand E.
Marcos, subject to such conditions as the Philippine government may impose in the interest of peace and
order.
SARMIENTO, J., dissenting:chanrob1es virtual 1aw library
1. CONSTITUTIONAL LAW; EXECUTIVE POWER; LIMITATIONS ON THE SPECIFIC POWERS, CARRIES WITH
IT DIMINUTION OF EXECUTIVE POWER. — If the Constitution has imposed limitations on specific powers
of the President, it has, a fortiori, prescribed a diminution of executive power. The Charter says that the
right may only be restricted by: (1) a court order; or (2) by fiat of law. Had the fundamental law intended
a presidential imprimatur, it would have said so. It would have also completed the symmetry: judicial,
congressional, and executive restraints on the right. No amount of presumed residual executive power can
amend the Charter.
2. ID.; BILL OF RIGHTS; NOT ONLY A LIMITATION AGAINST LEGISLATIVE ENCROACHMENT IN

INDIVIDUAL LIBERTIES BUT MORE SO, AGAINST PRESIDENTIAL INTRUSIONS. — It is well to note that
the Bill of Rights stands primarily, a limitation not only against legislative encroachments on individual
liberties, but more so, against presidential intrusions. And especially so, because the President is the
caretaker of the military establishment that has, several times over, been unkind to part of the population
it has also sworn to protect.
3. ID.; ID.; RIGHT TO TRAVEL; RIGHT OF A CITIZEN TO BE BURIED IN HIS OWN COUNTRY. — The
military has shown no hard evidence that "the return of the Marcoses" would indeed interpose a threat to
national security. And apparently, the majority itself is not convinced ("has been viewed . . .") That Mrs.
Marcos has referred to President Corazon Aquino as an illegitimate President, does not, so I submit,
reinforce alleged fears of a massive destabilization awaiting the nation. The military has said over and
over that Marcos followers are not capable of successful destabilization effort. And only this morning
(October 27, 1989), media reported the assurances given to foreign investors by no less than the
President, of the political and economic stability of the nation, as well as the Government’s capability to
quell forces that menace the gains of EDSA. The President has no power to deny requests of Marcos
relatives to bury Marcos in his homeland. As for the former, let them get their just deserts here too. And
let the matter rest.
RESOLUTION
PER CURIAM:
In its decision dated September 15, 1989, the Court, by a vote of eight (8) to seven (7), dismissed the
petition, after finding that the President did not act arbitrarily or with grave abuse of discretion in
determining that the return of former President Marcos and his family at the present time and under
present circumstances pose a threat to national interest and welfare and in prohibiting their return to the
Philippines. On September 28, 1989, former President Marcos died in Honolulu, Hawaii. In a statement,
President Aquino said:chanrob1es virtual 1aw library
In the interest of the safety of those who will take the death of Mr. Marcos in widely and passionately
conflicting ways, and for the tranquility of the state and order of society, the remains of Ferdinand E.
Marcos will not be allowed to be brought to our country until such time as the government, be it under
this administration or the succeeding one, shall otherwise decide. [Motion for Reconsideration, p. 1; Rollo,
p. 443.]
On October 2, 1989, a Motion for Reconsideration was filed by petitioners, raising the following major
arguments:chanrob1es virtual 1aw library
1. to bar former President Marcos and his family from returning to the Philippines is to deny them not only
the inherent right of citizens to return to their country of birth but also the protection of the Constitution
and all of the rights guaranteed to Filipinos under the Constitution;
2. the President has no power to bar a Filipino from his own country; if she has, she had exercised it
arbitrarily; and
3. there is no basis for barring the return of the family of former President Marcos.
Thus, petitioners prayed that the Court reconsider its decision, order respondents to issue the necessary
travel documents to enable Mrs. Imelda R. Marcos, Ferdinand R. Marcos, Jr., Irene M. Araneta, Imee M.
Manotoc, Tommy Manotoc and Gregorio Araneta to return to the Philippines, and enjoin respondents from
implementing President Aquino’s decision to bar the return of the remains of Mr. Marcos, and the other
petitioners, to the Philippines.
Commenting on the motion for reconsideration, the Solicitor General argued that the motion for
reconsideration is moot and academic as to the deceased Mr. Marcos. Moreover, he asserts that "the
‘formal’ rights being invoked by the Marcoses under the label ‘right to return’, including the label ‘return of
Marcos’ remains, is in reality or substance a ‘right’ to destabilize the country, a ‘right’ to hide the
Marcoses’ incessant shadowy orchestrated efforts at destabilization." [Comment, p. 29.] Thus, he prays
that the Motion for Reconsideration be denied for lack of merit.
We deny the motion for reconsideration.
1. It must be emphasized that as in all motions for reconsideration, the burden is upon the movants,
petitioner herein, to show that there are compelling reasons to reconsider the decision of the Court.
2. After a thorough consideration of the matters raised in the motion for reconsideration, the Court is of
the view that no compelling reasons have been established by petitioners to warrant a reconsideration of
the Court’s decision.
The death of Mr. Marcos, although it may be viewed as a supervening event, has not changed the factual
scenario under which the Court’s decision was rendered. The threats to the government, to which the
return of the Marcoses has been viewed to provide a catalytic effect, have not been shown to have ceased.
On the contrary, instead of erasing fears as to the destabilization that will be caused by the return of the
Marcoses, Mrs. Marcos reinforced the basis for the decision to bar their return when she called President
Aquino "illegal," claiming that it is Mr. Marcos, not Mrs. Aquino, who is the "legal" President of the
Philippines, and declared that the matter "should be brought to all the courts of the world." [Comment, p.
1; Philippine Star, October 4, 1989.]
3. Contrary to petitioners’ view, it cannot be denied that the President, upon whom executive power is
vested, has unstated residual powers which are implied from the grant of executive power and which are
necessary for her to comply with her duties under the Constitution. The powers of the President are not
limited to what are expressly enumerated in the article on the Executive Department and in scattered
provisions of the Constitution. This is so, notwithstanding the avowed intent of the members of the
Constitutional Commission of 1986 to limit the powers of the President as a reaction to the abuses under
the regime of Mr. Marcos, for the result was a limitation of specific powers of the President, particularly
those relating to the commander-in-chief clause, but not a diminution of the general grant of executive
power.
That the President has powers other than those expressly stated in the Constitution is nothing new. This is
recognized under the U.S. Constitution from which we have patterned the distribution of governmental
powers among three (3) separate branches.
Article II, [section] 1, provides that "The Executive Power shall be vested in a President of the United
States of America." In Alexander Hamilton’s widely accepted view, this statement cannot be read as mere
shorthand for the specific executive authorizations that follow it in [sections] 2 and 3. Hamilton stressed
the difference between the sweeping language of article II, section 1, and the conditional language of
article I, [section] 1: "All legislative Powers herein granted shall be vested in a Congress of the United
States . . ." Hamilton submitted that" [t]he [article II] enumeration [in sections 2 and 3] ought therefore
to be considered, as intended merely to specify the principal articles implied in the definition of execution
power; leaving the rest to flow from the general grant of that power, interpreted in comformity with other
parts of the Constitution . . ."cralaw virtua1aw library
In Myers v. United States, the Supreme Court accepted Hamilton’s proposition, concluding that the federal
executive, unlike the Congress, could exercise power from sources not enumerated, so long as not
forbidden by the constitutional text: "The executive power was given in general terms, strengthened by
specific terms where emphasis was regarded as appropriate, and was limited by direct expressions where
limitation was needed . . ." The language of Chief Justice Taft in Myers makes clear that the constitutional
concept of inherent power is not a synonym for power without limit; rather, the concept suggests only
that not all powers granted in the Constitution are themselves exhausted by internal enumeration, so that,
within a sphere properly regarded as one of "executive" power, authority is implied unless there or
elsewhere expressly limited. [TRIBE, AMERICAN CONSTITUTIONAL LAW 158-159 (1978).]
And neither can we subscribe to the view that a recognition of the President’s implied or residual powers is
tantamount to setting the stage for another dictatorship. Despite petitioners’ strained analogy, the
residual powers of the President under the Constitution should not be confused with the power of the
President under the 1973 Constitution to legislate pursuant to Amendment No. 6 which
provides:chanrob1es virtual 1aw library
Whenever in the judgment of the President (Prime Minister), there exists a grave emergency or a threat or
imminence thereof, or whenever the interim Batasang Pambansa or the regular National Assembly fails or
is unable to act adequately on any matter for any reason that in his judgment requires immediate action,
he may, in order to meet the exigency, issue the necessary decrees, orders, or letters of instruction,
which shall form part of the law of the land.
There is no similarity between the residual powers of the President under the 1987 Constitution and the
power of the President under the 1973 Constitution pursuant to Amendment No. 6. First of all,
Amendment No. 6 refers to an express grant of power. It is not implied. Then, Amendment No. 6 refers to
a grant to the President of the specific power of legislation.
4. Among the duties of the President under the Constitution, in compliance with his (or her) oath of office,
is to protect and promote the interest and welfare of the people. Her decision to bar the return of the
Marcoses and subsequently, the remains of Mr. Marcos at the present time and under present
circumstances is in compliance with this bounden duty. In the absence of a clear showing that she had
acted with arbitrariness or with grave abuse of discretion in arriving at this decision, the Court will not
enjoin the implementation of this decision.
ACCORDINGLY, the Court resolved to DENY the Motion for Reconsideration for lack of merit." Gutierrez,
Jr., Cruz, Paras, Feliciano, Padilla, Bidin and Sarmiento, JJ., maintained their dissent. See separate
dissenting opinions.
Separate Opinions
CRUZ, J., dissenting:chanrob1es virtual 1aw library
Nothing important has happened to change my vote for granting the petition. The death of Marcos has not
plunged the nation into paroxysms of grief as the so-called "loyalists" had hoped. By and large, it has
been met with only passing interest if not outright indifference from the people. Clearly, the discredited
dictator is in death no El Cid. Marcos dead is only an unpleasant memory, not a bolt of lightning to whip
the blood.
This only shows that if he was at all a threat to the national security when he was already moribund, that
feeble threat has died with him. As the government stresses, he has been reduced to a non-person (which
makes me wonder why it is still afraid of him). His cadaver is not even regarded as a symbol of this or
that or whatever except by his fanatical followers. It is only a dead body waiting to be interred in this
country.
This is a tempest in a teapot. We have more important things to do than debating over a corpse that
deserves no kinder fate than dissolution and oblivion. I say let it be brought home and, buried deep and
let us be done with it forever.
PARAS, J., dissenting:chanrob1es virtual 1aw library
I find no reason to deviate from the dissenting opinion I have already expressed.
Firstly, the former President, although already dead, is still entitled to certain rights. It is not correct to
say that a dead man, since he is no longer a human being, has ceased to have rights. For instance, our
Revised Penal Code prohibits the commission of libel against a deceased individual. And even if we were to
assume the non-existence anymore of his human rights what about the human rights of his widow and the
other members of his family?
Secondly, up to now, the alleged threats to national security have remained unproved and consequently,
unpersuasive. Our Armed Forces can easily control any possible uprising or political and military
destabilization. In fact, the converse appears to be nearer the truth, that is, if we do not allow the remains
to come, more trouble may be expected.
Thirdly, reconciliation can proceed at a much faster pace if the petition for the return is granted. To refuse
the request can mean a hardening of resistance against the well-intentioned aim of the administration.
Upon the other hand, to grant the petition may well soften the hearts of the oppositionists; paving the
way for a united citizenry.chanrobles.com.ph : virtual law library
Finally, the entire world will surely applaud our government’s act of mercy. As Shakespeare once wrote
"the quality of mercy is not strained." Surely, compassion is the better part of government. Remove
mercy, and you remove the best reason against civil strife, which if not abated can turn our country into a
mainstream of fiery dissent and in the end, as one great man has put it, the question will no longer be
what is right, but what is left.
PADILLA, J., dissenting:chanrob1es virtual 1aw library
The death of former President Ferdinand E. Marcos, which supervened after decision in this case had been
rendered, was pre-empted and foreseen in my original dissenting opinion. There I said that the first
cogent and decisive proposition in this case is that "Mr. Marcos is a Filipino and, as such, entitled to return
to, die and be buried in this country." I have only to add a few statements to that dissenting opinion.
Respondents have succeeded in denying Mr. Marcos the first two (2) rights, i.e. to return to and die in this
country. The remaining right of this Filipino that cries out for vindication at this late hour is the right to be
buried in this country. Will the respondents be allowed to complete the circle of denying the constitutional
and human right of Mr. Marcos to travel which, as stated in my dissenting opinion, includes the right to
return to, die and be buried in this country? The answer should be in the negative if the Constitution is to
still prevail; the answer should be in the negative if we are to avoid the completely indefensible act of
denying a Filipino the last right to blend his mortal remains with a few square feet of earth in the
treasured land of his birth.
Those who would deny this Filipino the only constitutional and human right that can be accorded him now
say that the constitutional and human right to be buried in this country would apply to any Filipino, except
Mr. Marcos, because he was a dictator and he plundered the country. This is the most irrelevant argument
that can be raised at this time. For, our democracy is built on the fundamental assumption (so we believe)
that the Constitution and all its guarantees apply to all Filipinos, whether dictator or pauper, learned or
ignorant, religious or agnostic, as long as he is a Filipino.
It is said that to accord this Filipino the right to be buried in this country would pose a serious threat to
national security and public safety. What threat? As pointed out in my dissenting opinion, the second
cogent and decisive proposition in this case is that respondents have not presented any "hard evidence"
(factual bases) or convincing proof of such threat. "All we have are general conclusions of ‘national
security’ and ‘public safety’ in avoidance of a specific, demandable and enforceable constitutional and
basic human right to return." Recent events have, to my mind, served to confirm the validity of such
dissenting statement.
If a live Marcos returning to this country did not pose a serious threat to national security, the situation
cannot be any worse with a dead Marcos returning. For, a dead Marcos will return to be buried into mother
earth, where there are no protests, "demos", or even dissents, where the rule that reigns, in the language
of Mr. Justice Jackson in Barnette, is the "unanimity of the graveyard."cralaw virtua1aw library
It is said that, while a dead Marcos has been rendered impotent to threaten national security, his
supporters would pose that threat to national security. This argument is untenable as it is without merit.
As I see it, Marcos’ supporters pose a greater threat to peace and order, with Marcos deprived of his right
to burial in this country. On the other hand, if the remains of Mr. Marcos are brought to the country and
allowed the burial to which he is constitutionally and humanly entitled, Marcos’ supporters would be
deprived of an otherwise potent argument — so conducive to mass protests and even violence — that
their idol has been cruelly denied the right to be buried in his homeland.
It is also said that Mr. Marcos, in cadaver form, has no constitutional or human rights, to speak of. This
contention entirely begs the issue. In the first place, one cannot overlook that the right of Mr. Marcos, as a
Filipino, to be buried in this country, is asserted not for the first time after his death. It was vigorously
asserted long before his death. But, more importantly, the right of every Filipino to be buried in his
country, is part of a continuing right that starts from birth and ends only on the day he is finally laid to
rest in his country.
This dissenting opinion does not pretend to deny the Philippine government the right to lay down
conditions for the burial of Mr. Marcos in this country, but I submit that these conditions must, as a
fundamental postulate, recognize the right of the man, as a Filipino, to be buried in this country NOW.
The majority resolution, in effect, bans Mr. Marcos’ burial in this country now. Without in any way
affecting my respect and regard for my brethren and sisters in the majority, I am deeply concerned and
greatly disturbed that, with their decision banning a dead Marcos from burial in this country, they have
passed an opportunity to defuse a constitutional crisis that, in my humble assessment, threatens to ignite
an already divided nation. Regrettably, they have ignored the constitutional dimension of the problem
rooted in the ageless and finest tradition of our people for respect and deference to the dead. What
predictably follows will be a continuing strife, among our people, of unending hatred, recriminations and
retaliations. God save this country!
My vote is for this Court to ORDER the respondents to allow the immediate return and burial in the
Republic of the Philippines of former President Ferdinand E. Marcos, subject to such conditions as the
Philippine government may impose in the interest of peace and order.
SARMIENTO, J., dissenting:chanrob1es virtual 1aw library
The case has curious trappings of a deja vu, the shoe being on the other foot, yet, as I stated before, I
can not allow personal emotions to soften my "hardened impartiality" and deny, as a consequence, the
rights of the ex-President’s bereaved to bury his remains in his homeland, and for them to return from
exile. As I had, then, voted to grant the petition, so do I vote to grant reconsideration.
I have gone to lengths to locate in the four corners of the Constitution, by direct grant or by implication,
the President’s supposed "residual" power to forbid citizens from entering the motherland reiterated in the
resolution of the majority. I have found none.
I am not agreed, that:chanrob1es virtual 1aw library
3. Contrary to petitioner’s view, it cannot be denied that the President, upon whom executive power is
vested, has unstated residual powers which are implied from the grant of executive power and which are
necessary for her to comply with her duties under the Constitution The powers of the President are not
limited to what are expressly enumerated in the article on the executive Department and in scattered
provisions of the Constitution. This, notwithstanding the avowed intent of the members of the
Constitutional Commission of 1986 to limit the powers of the President as a reaction to the abuses under
the regime of Mr. Marcos, for the result was a limitation of specific powers of the President, particularly
those relating to the commander-in-chief clause, but not a diminution of the genera grant of executive
power.
It is a nice word game, but it is nothing else. For, if the Constitution has imposed limitations on specific
powers of the President, it has, a fortiori, prescribed a diminution of executive power. The Charter says
that the right may only be restricted by: (1) a court order; or (2) by fiat of law. Had the fundamental law
intended a presidential imprimatur, it would have said so. It would have also completed the symmetry:
judicial, congressional, and executive restraints on the right. No amount of presumed residual executive
power can amend the Charter.
It is well to note that the Bill of Rights stands primarily, a limitation not only against legislative
encroachments on individual liberties, but more so, against presidential intrusions. And especially so,
because the President is the caretaker of the military establishment that has, several times over, been
unkind to part of the population it has also sworn to protect.
That" [t]he threats to the government, to which the return of the Marcoses has been viewed to provide a
catalytic effect, have not been shown to have ceased" (Res., 3) is the realm of conjecture, speculation,
and imagination. The military has shown no hard evidence that "the return of the Marcoses" would indeed
interpose a threat to national security. And apparently, the majority itself is not convinced ("has been
viewed . . .")
That Mrs. Marcos has referred to President Corazon Aquino as an illegitimate President, does not, so I
submit, reinforce alleged fears of a massive destabilization awaiting the nation. The military has said over
and over that Marcos followers are not capable of successful destabilization effort. And only this morning
(October 27, 1989), media reported the assurances given to foreign investors by no less than the
President, of the political and economic stability of the nation, as well as the Government’s capability to
quell forces that menace the gains of EDSA.
I have no eulogies to say on the passing of Mr. Marcos. My personal impressions, however, are beside the
point. I reiterate that the President has no power to deny requests of Marcos relatives to bury Marcos in
his homeland. As for the former, let them get their just deserts here too. And let the matter rest.
G.R. No. 135385 December 6, 2000
ISAGANI CRUZ and CESAR EUROPA, petitioners,

vs.
SECRETARY OF ENVIRONMENT AND NATURAL RESOURCES, SECRETARY OF BUDGET AND MANAGEMENT
and CHAIRMAN and COMMISSIONERS OF THE NATIONAL COMMISSION ON INDIGENOUS
PEOPLES, respondents.
HON. JUAN M .FLAVIER, HON. PONCIANO BENNAGEN, BAYANI ASCARRAGA, EDTAMI MANSAYANGAN,
BASILIO WANDAG, EVELYN DUNUAN, YAOM TUGAS, ALFREMO CARPIANO, LIBERATO A. GABIN,
MATERNIDAD M. COLAS, NARCISA M. DALUPINES, BAI KIRAM-CONNIE SATURNO, BAE MLOMO-BEATRIZ T.
ABASALA, DATU BALITUNGTUNG-ANTONIO D. LUMANDONG, DATU MANTUMUKAW TEOFISTO SABASALES,
DATU EDUAARDO BANDA, DATU JOEL UNAD, DATU RAMON BAYAAN, TIMUAY JOSE ANOY, TIMUAY MACARIO
D. SALACAO, TIMUAY EDWIN B. ENDING, DATU SAHAMPONG MALANAW VI, DATU BEN PENDAO CABIGON,
BAI NANAPNAY-LIZA SAWAY, BAY INAY DAYA-MELINDA S. REYMUNDO, BAI TINANGHAGA HELINITA T.
PANGAN, DATU MAKAPUKAW ADOLINO L. SAWAY, DATU MAUDAYAW-CRISPEN SAWAY, VICKY MAKAY,
LOURDES D. AMOS, GILBERT P. HOGGANG, TERESA GASPAR, MANUEL S. ONALAN, MIA GRACE L. GIRON,
ROSEMARIE G. PE, BENITO CARINO, JOSEPH JUDE CARANTES, LYNETTE CARANTES-VIVAL, LANGLEY
SEGUNDO, SATUR S. BUGNAY, CARLING DOMULOT, ANDRES MENDIOGRIN, LEOPOLDO ABUGAN, VIRGILIO
CAYETANO, CONCHITA G. DESCAGA, LEVY ESTEVES, ODETTE G. ESTEVEZ, RODOLFO C. AGUILAR, MAURO
VALONES, PEPE H. ATONG, OFELIA T. DAVI, PERFECTO B. GUINOSAO, WALTER N. TIMOL, MANUEL T. SELEN,
OSCAR DALUNHAY, RICO O. SULATAN, RAFFY MALINDA, ALFREDO ABILLANOS, JESSIE ANDILAB, MIRLANDO
H. MANGKULINTAS, SAMIE SATURNO, ROMEO A. LINDAHAY, ROEL S. MANSANG-CAGAN, PAQUITO S. LIESES,
FILIPE G. SAWAY, HERMINIA S. SAWAY, JULIUS S. SAWAY, LEONARDA SAWAY, JIMMY UGYUB, SALVADOR
TIONGSON, VENANCIO APANG, MADION MALID, SUKIM MALID, NENENG MALID, MANGKATADONG AUGUSTO
DIANO, JOSEPHINE M. ALBESO, MORENO MALID, MARIO MANGCAL, FELAY DIAMILING, SALOME P. SARZA,
FELIPE P. BAGON, SAMMY SALNUNGAN, ANTONIO D. EMBA, NORMA MAPANSAGONOS, ROMEO SALIGA, SR.,
JERSON P. GERADA, RENATO T. BAGON, JR., SARING MASALONG, SOLEDAD M. GERARDA, ELIZABETH L.
MENDI, MORANTE S. TIWAN, DANILO M. MALUDAO, MINORS MARICEL MALID, represented by her father
CORNELIO MALID, MARCELINO M. LADRA, represented by her father MONICO D. LADRA, JENNYLYN MALID,
represented by her father TONY MALID, ARIEL M. EVANGELISTA, represented by her mother LINAY BALBUENA,
EDWARD M. EMUY, SR., SUSAN BOLANIO, OND, PULA BATO B'LAAN TRIBAL FARMER'S ASSOCIATION, INTER-
PEOPLE'S EXCHANGE, INC. and GREEN FORUM-WESTERN VISAYAS, intervenors.
COMMISSION ON HUMAN RIGHTS, intervenor.
IKALAHAN INDIGENOUS PEOPLE and HARIBON FOUNDATION FOR THE CONSERVATION OF NATURAL
RESOURCES, INC., intervenor.
RESOLUTION
PER CURIAM:
Petitioners Isagani Cruz and Cesar Europa brought this suit for prohibition and mandamus as citizens and taxpayers,
assailing the constitutionality of certain provisions of Republic Act No. 8371 (R.A. 8371), otherwise known as the
Indigenous Peoples Rights Act of 1997 (IPRA), and its Implementing Rules and Regulations (Implementing Rules).
In its resolution of September 29, 1998, the Court required respondents to comment. 1 In compliance, respondents
Chairperson and Commissioners of the National Commission on Indigenous Peoples (NCIP), the government agency
created under the IPRA to implement its provisions, filed on October 13, 1998 their Comment to the Petition, in which they
defend the constitutionality of the IPRA and pray that the petition be dismissed for lack of merit.
On October 19, 1998, respondents Secretary of the Department of Environment and Natural Resources (DENR) and
Secretary of the Department of Budget and Management (DBM) filed through the Solicitor General a consolidated
Comment. The Solicitor General is of the view that the IPRA is partly unconstitutional on the ground that it grants
ownership over natural resources to indigenous peoples and prays that the petition be granted in part.
On November 10, 1998, a group of intervenors, composed of Sen. Juan Flavier, one of the authors of the IPRA, Mr.
Ponciano Bennagen, a member of the 1986 Constitutional Commission, and the leaders and members of 112 groups of
indigenous peoples (Flavier, et. al), filed their Motion for Leave to Intervene. They join the NCIP in defending the
constitutionality of IPRA and praying for the dismissal of the petition.
On March 22, 1999, the Commission on Human Rights (CHR) likewise filed a Motion to Intervene and/or to Appear as
Amicus Curiae. The CHR asserts that IPRA is an expression of the principle of parens patriae and that the State has the
responsibility to protect and guarantee the rights of those who are at a serious disadvantage like indigenous peoples. For
this reason it prays that the petition be dismissed.
On March 23, 1999, another group, composed of the Ikalahan Indigenous People and the Haribon Foundation for the
Conservation of Natural Resources, Inc. (Haribon, et al.), filed a motion to Intervene with attached Comment-in-
Intervention. They agree with the NCIP and Flavier, et al. that IPRA is consistent with the Constitution and pray that the
petition for prohibition and mandamus be dismissed.
The motions for intervention of the aforesaid groups and organizations were granted.
Oral arguments were heard on April 13, 1999. Thereafter, the parties and intervenors filed their respective memoranda in
which they reiterate the arguments adduced in their earlier pleadings and during the hearing.
Petitioners assail the constitutionality of the following provisions of the IPRA and its Implementing Rules on the ground
that they amount to an unlawful deprivation of the State’s ownership over lands of the public domain as well as minerals
and other natural resources therein, in violation of the regalian doctrine embodied in Section 2, Article XII of the
Constitution:
"(1) Section 3(a) which defines the extent and coverage of ancestral domains, and Section 3(b) which, in turn, defines
ancestral lands;
"(2) Section 5, in relation to section 3(a), which provides that ancestral domains including inalienable public lands, bodies
of water, mineral and other resources found within ancestral domains are private but community property of the
indigenous peoples;
"(3) Section 6 in relation to section 3(a) and 3(b) which defines the composition of ancestral domains and ancestral lands;
"(4) Section 7 which recognizes and enumerates the rights of the indigenous peoples over the ancestral domains;
(5) Section 8 which recognizes and enumerates the rights of the indigenous peoples over the ancestral lands;
"(6) Section 57 which provides for priority rights of the indigenous peoples in the harvesting, extraction, development or
exploration of minerals and other natural resources within the areas claimed to be their ancestral domains, and the right to
enter into agreements with nonindigenous peoples for the development and utilization of natural resources therein for a
period not exceeding 25 years, renewable for not more than 25 years; and
"(7) Section 58 which gives the indigenous peoples the responsibility to maintain, develop, protect and conserve the
ancestral domains and portions thereof which are found to be necessary for critical watersheds, mangroves, wildlife
sanctuaries, wilderness, protected areas, forest cover or reforestation."2
Petitioners also content that, by providing for an all-encompassing definition of "ancestral domains" and "ancestral lands"
which might even include private lands found within said areas, Sections 3(a) and 3(b) violate the rights of private
landowners.3
In addition, petitioners question the provisions of the IPRA defining the powers and jurisdiction of the NCIP and making
customary law applicable to the settlement of disputes involving ancestral domains and ancestral lands on the ground that
these provisions violate the due process clause of the Constitution.4
These provisions are:
"(1) sections 51 to 53 and 59 which detail the process of delineation and recognition of ancestral domains and
which vest on the NCIP the sole authority to delineate ancestral domains and ancestral lands;
"(2) Section 52[i] which provides that upon certification by the NCIP that a particular area is an ancestral domain
and upon notification to the following officials, namely, the Secretary of Environment and Natural Resources,
Secretary of Interior and Local Governments, Secretary of Justice and Commissioner of the National
Development Corporation, the jurisdiction of said officials over said area terminates;
"(3) Section 63 which provides the customary law, traditions and practices of indigenous peoples shall be applied
first with respect to property rights, claims of ownership, hereditary succession and settlement of land disputes,
and that any doubt or ambiguity in the interpretation thereof shall be resolved in favor of the indigenous peoples;
"(4) Section 65 which states that customary laws and practices shall be used to resolve disputes involving
indigenous peoples; and
"(5) Section 66 which vests on the NCIP the jurisdiction over all claims and disputes involving rights of the
indigenous peoples."5
Finally, petitioners assail the validity of Rule VII, Part II, Section 1 of the NCIP Administrative Order No. 1, series of 1998,
which provides that "the administrative relationship of the NCIP to the Office of the President is characterized as a lateral
but autonomous relationship for purposes of policy and program coordination." They contend that said Rule infringes upon
the President’s power of control over executive departments under Section 17, Article VII of the Constitution. 6
Petitioners pray for the following:
"(1) A declaration that Sections 3, 5, 6, 7, 8, 52[I], 57, 58, 59, 63, 65 and 66 and other related provisions of R.A.
8371 are unconstitutional and invalid;
"(2) The issuance of a writ of prohibition directing the Chairperson and Commissioners of the NCIP to cease and
desist from implementing the assailed provisions of R.A. 8371 and its Implementing Rules;
"(3) The issuance of a writ of prohibition directing the Secretary of the Department of Environment and Natural
Resources to cease and desist from implementing Department of Environment and Natural Resources Circular
No. 2, series of 1998;
"(4) The issuance of a writ of prohibition directing the Secretary of Budget and Management to cease and desist
from disbursing public funds for the implementation of the assailed provisions of R.A. 8371; and
"(5) The issuance of a writ of mandamus commanding the Secretary of Environment and Natural Resources to
comply with his duty of carrying out the State’s constitutional mandate to control and supervise the exploration,
development, utilization and conservation of Philippine natural resources."7
After due deliberation on the petition, the members of the Court voted as follows:
Seven (7) voted to dismiss the petition. Justice Kapunan filed an opinion, which the Chief Justice and Justices Bellosillo,
Quisumbing, and Santiago join, sustaining the validity of the challenged provisions of R.A. 8371. Justice Puno also filed a
separate opinion sustaining all challenged provisions of the law with the exception of Section 1, Part II, Rule III of NCIP
Administrative Order No. 1, series of 1998, the Rules and Regulations Implementing the IPRA, and Section 57 of the
IPRA which he contends should be interpreted as dealing with the large-scale exploitation of natural resources and should
be read in conjunction with Section 2, Article XII of the 1987 Constitution. On the other hand, Justice Mendoza voted to
dismiss the petition solely on the ground that it does not raise a justiciable controversy and petitioners do not have
standing to question the constitutionality of R.A. 8371.
Seven (7) other members of the Court voted to grant the petition. Justice Panganiban filed a separate opinion expressing
the view that Sections 3 (a)(b), 5, 6, 7 (a)(b), 8, and related provisions of R.A. 8371 are unconstitutional. He reserves
judgment on the constitutionality of Sections 58, 59, 65, and 66 of the law, which he believes must await the filing of
specific cases by those whose rights may have been violated by the IPRA. Justice Vitug also filed a separate opinion
expressing the view that Sections 3(a), 7, and 57 of R.A. 8371 are unconstitutional. Justices Melo, Pardo, Buena,
Gonzaga-Reyes, and De Leon join in the separate opinions of Justices Panganiban and Vitug.
As the votes were equally divided (7 to 7) and the necessary majority was not obtained, the case was redeliberated upon.
However, after redeliberation, the voting remained the same. Accordingly, pursuant to Rule 56, Section 7 of the Rules of
Civil Procedure, the petition is DISMISSED.
Attached hereto and made integral parts thereof are the separate opinions of Justices Puno, Vitug, Kapunan, Mendoza,
and Panganiban.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Quisumbing, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, and De Leon, Jr., JJ.,
concur.
Puno, Vitug, Kapunan, Mendoza and Panganiban JJ., see separate opinion
Footnotes
1 Rollo, p. 114.
2 Petition, Rollo, pp. 16-23.
3 Id. at 23-25.
4 Section1, Article III of the Constitution states: "No person shall be deprived of life, liberty or property without due
process of law, nor shall any person be denied the equal protection of the laws."
5 Rollo, pp. 25-27.
6 Id. at 27-28.
7 Transcript of Stenographic Notes of the hearing held on April 13, 1999, pp. 5-6.
The Lawphil Project - Arellano Law Foundation
SEPARATE OPINION
PUNO, J.:
PRECIS
A classic essay on the utility of history was written in 1874 by Friedrich Nietzsche entitled "On the Uses and
Disadvantages of History for Life." Expounding on Nietzsche's essay, Judge Richard Posner 1 wrote:2
"Law is the most historically oriented, or if you like the most backward-looking, the most 'past-dependent,' of the
professions. It venerates tradition, precedent, pedigree, ritual, custom, ancient practices, ancient texts, archaic
terminology, maturity, wisdom, seniority, gerontocracy, and interpretation conceived of as a method of recovering history.
It is suspicious of innovation, discontinuities, 'paradigm shifts,' and the energy and brashness of youth. These ingrained
attitudes are obstacles to anyone who wants to re-orient law in a more pragmatic direction. But, by the same
token, pragmatic jurisprudence must come to terms with history."
When Congress enacted the Indigenous Peoples Rights Act (IPRA), it introduced radical concepts into the Philippine
legal system which appear to collide with settled constitutional and jural precepts on state ownership of land and other
natural resources. The sense and subtleties of this law cannot be appreciated without considering its distinct sociology
and the labyrinths of its history. This Opinion attempts to interpret IPRA by discovering its soul shrouded by the mist of our
history. After all, the IPRA was enacted by Congress not only to fulfill the constitutional mandate of protecting the
indigenous cultural communities' right to their ancestral land but more importantly, to correct a grave historical injustice
to our indigenous people.
This Opinion discusses the following:
I. The Development of the Regalian Doctrine in the Philippine Legal System.
A. The Laws of the Indies
B. Valenton v. Murciano
C. The Public Land Acts and the Torrens System
D. The Philippine Constitutions
II. The Indigenous Peoples Rights Act (IPRA).

A. Indigenous Peoples
1. Indigenous Peoples: Their History
2. Their Concept of Land
III. The IPRA is a Novel Piece of Legislation.
A. Legislative History
IV. The Provisions of the IPRA Do Not Contravene the Constitution.
A. Ancestral domains and ancestral lands are the private property of indigenous peoples and do not constitute
part of the land of the public domain.
1. The right to ancestral domains and ancestral lands: how acquired
2. The concept of native title
(a) Cariño v. Insular Government
(b) Indian Title to land
(c) Why the Cariño doctrine is unique
3. The option of securing a torrens title to the ancestral land
B. The right of ownership and possession by the ICCs/IPs to their ancestral domains is a limited form of
ownership and does not include the right to alienate the same.
1. The indigenous concept of ownership and customary law
C. Sections 7 (a), 7 (b) and 57 of the IPRA do not violate the Regalian Doctrine enshrined in Section 2, Article XII
of the 1987 Constitution.
1. The rights of ICCs/IPs over their ancestral domains and lands
2. The right of ICCs/IPs to develop lands and natural resources within the ancestral domains does not
deprive the State of ownership over the natural resources, control and supervision in their development
and exploitation.
(a) Section 1, Part II, Rule III of the Implementing Rules goes beyond the parameters of Section
7(a) of the law on ownership of ancestral domains and is ultra vires.
(b) The small-scale utilization of natural resources in Section 7 (b) of the IPRA is allowed under
Paragraph 3, Section 2, Article XII of the 1987 Consitution.
(c) The large-scale utilization of natural resources in Section 57 of the IPRA may be harmonized
with Paragraphs 1 and 4, Section 2, Article XII of the 1987 Constitution.
V. The IPRA is a Recognition of Our Active Participation in the International Indigenous Movement.
DISCUSSION
I. THE DEVELOPMENT OF THE REGALIAN DOCTRINE IN THE PHILIPPINE LEGAL SYSTEM.
A. The Laws of the Indies

The capacity of the State to own or acquire property is the state's power of dominium.3 This was the foundation for the
early Spanish decrees embracing the feudal theory of jura regalia. The "Regalian Doctrine" or jura regalia is a Western
legal concept that was first introduced by the Spaniards into the country through the Laws of the Indies and the
Royal Cedulas. The Laws of the Indies, i.e., more specifically, Law 14, Title 12, Book 4 of the Novisima Recopilacion de
Leyes de las Indias, set the policy of the Spanish Crown with respect to the Philippine Islands in the following manner:
"We, having acquired full sovereignty over the Indies, and all lands, territories, and possessions not heretofore ceded
away by our royal predecessors, or by us, or in our name, still pertaining to the royal crown and patrimony, it is our will
that all lands which are held without proper and true deeds of grant be restored to us as they belong to us, in order that
after reserving before all what to us or to our viceroys, audiencias, and governors may seem necessary for public
squares, ways, pastures, and commons in those places which are peopled, taking into consideration not only their present
condition, but also their future and their probable increase, and after distributing to the natives what may be necessary for
tillage and pasturage, confirming them in what they now have and giving them more if necessary, all the rest of said lands
may remain free and unencumbered for us to dispose of as we may wish.
We therefore order and command that all viceroys and presidents of pretorial courts designate at such time as shall to
them seem most expedient, a suitable period within which all possessors of tracts, farms, plantations, and estates shall
exhibit to them and to the court officers appointed by them for this purpose, their title deeds thereto. And those who are in
possession by virtue of proper deeds and receipts, or by virtue of just prescriptive right shall be protected, and all the rest
shall be restored to us to be disposed of at our will."4
The Philippines passed to Spain by virtue of "discovery" and conquest. Consequently, all lands became the exclusive
patrimony and dominion of the Spanish Crown. The Spanish Government took charge of distributing the lands by issuing
royal grants and concessions to Spaniards, both military and civilian. 5 Private land titles could only be acquired from the
government either by purchase or by the various modes of land grant from the Crown. 6
The Laws of the Indies were followed by the Ley Hipotecaria, or the Mortgage Law of 1893.7 The Spanish Mortgage
Law provided for the systematic registration of titles and deeds as well as possessory claims. The law sought to register
and tax lands pursuant to the Royal Decree of 1880. The Royal Decree of 1894, or the "Maura Law," was partly an
amendment of the Mortgage Law as well as the Laws of the Indies, as already amended by previous orders and
decrees.8 This was the last Spanish land law promulgated in the Philippines. It required the "adjustment" or registration of
all agricultural lands, otherwise the lands shall revert to the state.
Four years later, by the Treaty of Paris of December 10, 1898, Spain ceded to the government of the United States all
rights, interests and claims over the national territory of the Philippine Islands. In 1903, the United States colonial
government, through the Philippine Commission, passed Act No. 926, the first Public Land Act.
B. Valenton v. Murciano
In 1904, under the American regime, this Court decided the case of Valenton v. Murciano.9
Valenton resolved the question of which is the better basis for ownership of land: long-time occupation or paper title.
Plaintiffs had entered into peaceful occupation of the subject land in 1860. Defendant's predecessor-in-interest, on the
other hand, purchased the land from the provincial treasurer of Tarlac in 1892. The lower court ruled against the plaintiffs
on the ground that they had lost all rights to the land by not objecting to the administrative sale. Plaintiffs appealed the
judgment, asserting that their 30-year adverse possession, as an extraordinary period of prescription in the Partidas and
the Civil Code, had given them title to the land as against everyone, including the State; and that the State, not owning the
land, could not validly transmit it.
The Court, speaking through Justice Willard, decided the case on the basis of "those special laws which from earliest time
have regulated the disposition of the public lands in the colonies." 10 The question posed by the Court was: "Did these
special laws recognize any right of prescription as against the State as to these lands; and if so, to what extent was it
recognized?"
Prior to 1880, the Court said, there were no laws specifically providing for the disposition of land in the Philippines.
However, it was understood that in the absence of any special law to govern a specific colony, the Laws of the Indies
would be followed. Indeed, in the Royal Order of July 5, 1862, it was decreed that until regulations on the subject could be
prepared, the authorities of the Philippine Islands should follow strictly the Laws of the Indies, the Ordenanza of
the Intendentes of 1786, and the Royal Cedula of 1754.11
Quoting the preamble of Law 14, Title 12, Book 4 of the Recopilacion de Leyes de las Indias, the court interpreted it as
follows:
"In the preamble of this law there is, as is seen, a distinct statement that all those lands belong to the Crown which have
not been granted by Philip, or in his name, or by the kings who preceded him. This statement excludes the idea that
there might be lands not so granted, that did not belong to the king. It excludes the idea that the king was not still
the owner of all ungranted lands, because some private person had been in the adverse occupation of them. By the
mandatory part of the law all the occupants of the public lands are required to produce before the authorities named, and
within a time to be fixed by them, their title papers. And those who had good title or showed prescription were to be
protected in their holdings. It is apparent that it was not the intention of the law that mere possession for a length of time
should make the possessors the owners of the land possessed by them without any action on the part of the
authorities."12
The preamble stated that all those lands which had not been granted by Philip, or in his name, or by the kings who
preceded him, belonged to the Crown.13 For those lands granted by the king, the decree provided for a system of
assignment of such lands. It also ordered that all possessors of agricultural land should exhibit their title deed, otherwise,
the land would be restored to the Crown.14
The Royal Cedula of October 15, 1754 reinforced the Recopilacion when it ordered the Crown's principal subdelegate to
issue a general order directing the publication of the Crown's instructions:
"x x x to the end that any and all persons who, since the year 1700, and up to the date of the promulgation and publication
of said order, shall have occupied royal lands, whether or not x x x cultivated or tenanted, may x x x appear and exhibit to
said subdelegates the titles and patents by virtue of which said lands are occupied. x x x. Said subdelegates will at the
same time warn the parties interested that in case of their failure to present their title deeds within the term designated,
without a just and valid reason therefor, they will be deprived of and evicted from their lands, and they will be granted to
others."15
On June 25, 1880, the Crown adopted regulations for the adjustment of lands "wrongfully occupied" by private individuals
in the Philippine Islands. Valenton construed these regulations together with contemporaneous legislative and executive
interpretations of the law, and concluded that plaintiffs' case fared no better under the 1880 decree and other laws which
followed it, than it did under the earlier ones. Thus as a general doctrine, the Court stated:
"While the State has always recognized the right of the occupant to a deed if he proves a possession for a sufficient
length of time, yet it has always insisted that he must make that proof before the proper administrative officers,
and obtain from them his deed, and until he did that the State remained the absolute owner."16
In conclusion, the Court ruled: "We hold that from 1860 to 1892 there was no law in force in these Islands by which the
plaintiffs could obtain the ownership of these lands by prescription, without any action by the State."17 Valenton had no
rights other than those which accrued to mere possession. Murciano, on the other hand, was deemed to be the owner of
the land by virtue of the grant by the provincial secretary. In effect, Valenton upheld the Spanish concept of state
ownership of public land.
As a fitting observation, the Court added that "[t]he policy pursued by the Spanish Government from earliest times,
requiring settlers on the public lands to obtain title deeds therefor from the State, has been continued by the
American Government in Act No. 926."18
C. The Public Land Acts and the Torrens System
Act No. 926, the first Public Land Act, was passed in pursuance of the provisions of the the Philippine Bill of 1902. The
law governed the disposition of lands of the public domain. It prescribed rules and regulations for the homesteading,
selling, and leasing of portions of the public domain of the Philippine Islands, and prescribed the terms and conditions to
enable persons to perfect their titles to public lands in the Islands. It also provided for the "issuance of patents to certain
native settlers upon public lands," for the establishment of town sites and sale of lots therein, for the completion of
imperfect titles, and for the cancellation or confirmation of Spanish concessions and grants in the Islands." In short, the
Public Land Act operated on the assumption that title to public lands in the Philippine Islands remained in the
government;19 and that the government's title to public land sprung from the Treaty of Paris and other subsequent treaties
between Spain and the United States.20 The term "public land" referred to all lands of the public domain whose title still
remained in the government and are thrown open to private appropriation and settlement, 21 and excluded the patrimonial
property of the government and the friar lands.22
Act No. 926 was superseded in 1919 by Act 2874, the second Public Land Act. This new law was passed under the
Jones Law. It was more comprehensive in scope but limited the exploitation of agricultural lands to Filipinos and
Americans and citizens of other countries which gave Filipinos the same privileges. 23 After the passage of the 1935
Constitution, Act 2874 was amended in 1936 by Commonwealth Act No. 141. Commonwealth Act No. 141 remains the
present Public Land Law and it is essentially the same as Act 2874. The main difference between the two relates to the
transitory provisions on the rights of American citizens and corporations during the Commonwealth period at par with
Filipino citizens and corporations.24
Grants of public land were brought under the operation of the Torrens system under Act 496, or the Land
Registration Law of 1903. Enacted by the Philippine Commission, Act 496 placed all public and private lands in the
Philippines under the Torrens system. The law is said to be almost a verbatim copy of the Massachussetts Land
Registration Act of 1898,25 which, in turn, followed the principles and procedure of the Torrens system of registration
formulated by Sir Robert Torrens who patterned it after the Merchant Shipping Acts in South Australia. The Torrens
system requires that the government issue an official certificate of title attesting to the fact that the person named is the
owner of the property described therein, subject to such liens and encumbrances as thereon noted or the law warrants or
reserves.26 The certificate of title is indefeasible and imprescriptible and all claims to the parcel of land are quieted upon
issuance of said certificate. This system highly facilitates land conveyance and negotiation. 27
D. The Philippine Constitutions
The Regalian doctrine was enshrined in the 1935 Constitution. One of the fixed and dominating objectives of the 1935
Constitutional Convention was the nationalization and conservation of the natural resources of the country. 28 There was
an overwhelming sentiment in the Convention in favor of the principle of state ownership of natural resources
and the adoption of the Regalian doctrine.29 State ownership of natural resources was seen as a necessary starting
point to secure recognition of the state's power to control their disposition, exploitation, development, or utilization. 30 The
delegates to the Constitutional Convention very well knew that the concept of State ownership of land and natural
resources was introduced by the Spaniards, however, they were not certain whether it was continued and applied by the
Americans. To remove all doubts, the Convention approved the provision in the Constitution affirming the Regalian
doctrine.31
Thus, the 1935 Constitution, in Section 1 of Article XIII on "Conservation and Utilization of Natural Resources," reads as
follows:
"Sec. 1. All agricultural, timber, and mineral lands of the public domain, waters, minerals, coal, petroleum, and
other mineral oils, all forces of potential energy, and other natural resources of the Philippines belong to the
State, and their disposition, exploitation, development, or utilization shall be limited to citizens of the Philippines,
or to corporations or associations at least sixty per centum of the capital of which is owned by such citizens,
subject to any existing right, grant, lease, or concession at the time of the inauguration of the Government
established under this Constitution. Natural resources, with the exception of public agricultural land, shall not be
alienated, and no license, concession, or lease for the exploitation, development, or utilization of any of the natural
resources shall be granted for a period exceeding twenty-five years, except as to water rights for irrigation, water supply,
fisheries, or industrial uses other than the development of water power, in which cases beneficial use may be the measure
and the limit of the grant."
The 1973 Constitution reiterated the Regalian doctrine in Section 8, Article XIV on the "National Economy and the
Patrimony of the Nation," to wit:
"Sec. 8. All lands of the public domain, waters, minerals, coal, petroleum and other mineral oils, all forces of
potential energy, fisheries, wildlife, and other natural resources of the Philippines belong to the State. With the
exception of agricultural, industrial or commercial, residential, and resettlement lands of the public domain,
natural resources shall not be alienated, and no license, concession, or lease for the exploration, development,
exploitation, or utilization of any of the natural resources shall be granted for a period exceeding twenty-five
years, renewable for not more than twenty-five years, except as to water rights for irrigation, water supply, fisheries, or
industrial uses other than the development of water power, in which cases beneficial use may be the measure and the
limit of the grant."
The 1987 Constitution reaffirmed the Regalian doctrine in Section 2 of Article XII on "National Economy and Patrimony,"
to wit:
"Sec. 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of
potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by
the State. With the exception of agricultural lands, all other natural resources shall not be alienated. The
exploration, development and utilization of natural resources shall be under the full control and supervision of
the State. The State may directly undertake such activities or it may enter into co-production, joint venture, or
production-sharing agreements with Filipino citizens, or corporations or associations at least sixty per centum of
whose capital is owned by such citizens. Such agreements may be for a period not exceeding twenty-five years,
renewable for not more than twenty-five years, and under such terms and conditions as may be provided by law. In cases
of water rights for irrigation, water supply, fisheries, or industrial uses other than the development of water power,
beneficial use may be the measure and limit of the grant.
x x x."
Simply stated, all lands of the public domain as well as all natural resources enumerated therein, whether on public
or private land, belong to the State. It is this concept of State ownership that petitioners claim is being violated by
the IPRA.
II. THE INDIGENOUS PEOPLES RIGHTS ACT.
Republic Act No. 8371 is entitled "An Act to Recognize, Protect and Promote the Rights of Indigenous Cultural
Communities/ Indigenous Peoples, Creating a National Commission on Indigenous Peoples, Establishing Implementing
Mechanisms, Appropriating Funds Therefor, and for Other Purposes." It is simply known as "The Indigenous Peoples
Rights Act of 1997" or the IPRA.
The IPRA recognizes the existence of the indigenous cultural communities or indigenous peoples (ICCs/IPs) as a
distinct sector in Philippine society. It grants these people the ownership and possession of their ancestral domains
and ancestral lands, and defines the extent of these lands and domains. The ownership given is the indigenous
concept of ownership under customary law which traces its origin to native title.
Other rights are also granted the ICCs/IPs, and these are:
- the right to develop lands and natural resources;
- the right to stay in the territories;
- the right in case of displacement;
- the right to safe and clean air and water;
- the right to claim parts of reservations;
- the right to resolve conflict;32
- the right to ancestral lands which include
a. the right to transfer land/property to/among members of the same ICCs/IPs, subject to customary laws
and traditions of the community concerned;
b. the right to redemption for a period not exceeding 15 years from date of transfer, if the transfer is to a
non-member of the ICC/IP and is tainted by vitiated consent of the ICC/IP, or if the transfer is for an
unconscionable consideration.33
Within their ancestral domains and ancestral lands, the ICCs/IPs are given the right to self-governance and
empowerment,34 social justice and human rights,35 the right to preserve and protect their culture, traditions, institutions
and community intellectual rights, and the right to develop their own sciences and technologies.36
To carry out the policies of the Act, the law created the National Commission on Indigenous Peoples (NCIP). The NCIP is
an independent agency under the Office of the President and is composed of seven (7) Commissioners belonging to
ICCs/IPs from each of the ethnographic areas- Region I and the Cordilleras; Region II; the rest of Luzon; Island groups
including Mindoro, Palawan, Romblon, Panay and the rest of the Visayas; Northern and Western Mindanao; Southern and
Eastern Mindanao; and Central Mindanao.37 The NCIP took over the functions of the Office for Northern Cultural
Communities and the Office for Southern Cultural Communities created by former President Corazon Aquino which were
merged under a revitalized structure.38
Disputes involving ICCs/IPs are to be resolved under customary laws and practices. When still unresolved, the
matter may be brought to the NCIP, which is granted quasi-judicial powers.39 The NCIP's decisions may be appealed to
the Court of Appeals by a petition for review.
Any person who violates any of the provisions of the Act such as, but not limited to, unauthorized and/or unlawful intrusion
upon ancestral lands and domains shall be punished in accordance with customary laws or imprisoned from 9 months to
12 years and/or fined from ₱100,000.00 to ₱500,000.00 and obliged to pay damages. 40
A. Indigenous Peoples
The IPRA is a law dealing with a specific group of people, i.e., the Indigenous Cultural Communities (ICCs) or the
Indigenous Peoples (IPs). The term "ICCs" is used in the 1987 Constitution while that of "IPs" is the contemporary
international language in the International Labor Organization (ILO) Convention 169 41 and the United Nations (UN) Draft
Declaration on the Rights of Indigenous Peoples.42
ICCs/IPs are defined by the IPRA as:
"Sec. 3 [h]. Indigenous Cultural Communities/ Indigenous Peoples- refer to a group of people or homogeneous societies
identified by self-ascription and ascription by others, who have continuously lived as organized community on communally
bounded and defined territory, and who have, under claims of ownership since time immemorial, occupied, possessed
and utilized such territories, sharing common bonds of language, customs, traditions and other distinctive cultural traits, or
who have, through resistance to political, social and cultural inroads of colonization, non-indigenous religions and cultures,
became historically differentiated from the majority of Filipinos. ICCs/IPs shall likewise include peoples who are regarded
as indigenous on account of their descent from the populations which inhabited the country, at the time of conquest or
colonization, or at the time of inroads of non-indigenous religions and cultures, or the establishment of present state
boundaries, who retain some or all of their own social, economic, cultural and political institutions, but who may have been
displaced from their traditional domains or who may have resettled outside their ancestral domains."
Indigenous Cultural Communities or Indigenous Peoples refer to a group of people or homogeneous societies
who have continuously lived as an organized community on communally bounded and defined territory. These
groups of people have actually occupied, possessed and utilized their territories under claim of ownership since time
immemorial. They share common bonds of language, customs, traditions and other distinctive cultural traits, or, they, by
their resistance to political, social and cultural inroads of colonization, non-indigenous religions and cultures, became
historically differentiated from the Filipino majority. ICCs/IPs also include descendants of ICCs/IPs who inhabited the
country at the time of conquest or colonization, who retain some or all of their own social, economic, cultural and political
institutions but who may have been displaced from their traditional territories or who may have resettled outside their
ancestral domains.
1. Indigenous Peoples: Their History
Presently, Philippine indigenous peoples inhabit the interiors and mountains of Luzon, Mindanao, Mindoro, Negros,
Samar, Leyte, and the Palawan and Sulu group of islands. They are composed of 110 tribes and are as follows:
1. In the Cordillera Autonomous Region- Kankaney, Ibaloi, Bontoc, Tinggian or Itneg, Ifugao, Kalinga, Yapayao,
Aeta or Agta or Pugot, and Bago of Ilocos Norte and Pangasinan; Ibanag of Isabela, Cagayan; Ilongot of Quirino
and Nueva Vizcaya; Gaddang of Quirino, Nueva Vizcaya, Itawis of Cagayan; Ivatan of Batanes, Aeta of Cagayan,
Quirino and Isabela.
2. In Region III- Aetas.
3. In Region IV- Dumagats of Aurora, Rizal; Remontado of Aurora, Rizal, Quezon; Alangan or Mangyan,
Batangan, Buid or Buhid, Hanunuo and Iraya of Oriental and Occidental Mindoro; Tadyawan of Occidental
Mindoro; Cuyonon, Palawanon, Tagbanua and Tao't bato of Palawan.
4. In Region V- Aeta of Camarines Norte and Camarines Sur; Aeta-Abiyan, Isarog, and Kabihug of Camarines
Norte; Agta, and Mayon of Camarines Sur; Itom of Albay, Cimaron of Sorsogon; and the Pullon of Masbate and
Camarines Sur.
5. In Region VI- Ati of Negros Occidental, Iloilo and Antique, Capiz; the Magahat of Negros Occidental; the
Corolano and Sulod.
6. In Region VII- Magahat of Negros Oriental and Eskaya of Bohol.
7. In Region IX- the Badjao numbering about 192,000 in Tawi-Tawi, Zamboanga del Sur; the Kalibugan of
Basilan, the Samal, Subanon and Yakat.
8. Region X- Numbering 1.6 million in Region X alone, the IPs are: the Banwaon, Bukidnon, Matigsalog,
Talaanding of Bukidnon; the Camiguin of Camiguin Island; the Higa-unon of Agusan del Norte, Agusan del Sur,
Bukidnon and Misamis Occidental; the Tigwahanon of Agusan del Sur, Misamis Oriental and and Misamis
Occidental, the Manobo of the Agusan provinces, and the Umayamnon of Agusan and Bukidnon.
9. In Region XI- There are about 1,774,065 IPs in Region XI. They are tribes of the Dibabaon, Mansaka of Davao
del Norte; B'laan, Kalagan, Langilad, T'boli and Talaingod of Davao del Sur; Mamamanua of Surigao del Sur;
Mandaya of the Surigao provinces and Davao Oriental; Manobo Blit of South Cotabato; the Mangguangon of
Davao and South Cotabato; Matigsalog of Davao del Norte and Del Sur; Tagakaolo, Tasaday and Ubo of South
Cotabato; and Bagobo of Davao del sur and South Cotabato.
10. In Region XII- Ilianen, Tiruray, Maguindanao, Maranao, Tausug, Yakan/Samal, and Iranon. 43
How these indigenous peoples came to live in the Philippines goes back to as early as 25,000 to 30,000 B.C.
Before the time of Western contact, the Philippine archipelago was peopled largely by the Negritos, Indonesians and
Malays.44 The strains from these groups eventually gave rise to common cultural features which became the dominant
influence in ethnic reformulation in the archipelago. Influences from the Chinese and Indian civilizations in the third or
fourth millenium B.C. augmented these ethnic strains. Chinese economic and socio-cultural influences came by way of
Chinese porcelain, silk and traders. Indian influence found their way into the religious-cultural aspect of pre-colonial
society.45
The ancient Filipinos settled beside bodies of water. Hunting and food gathering became supplementary activities as
reliance on them was reduced by fishing and the cultivation of the soil. 46 From the hinterland, coastal, and riverine
communities, our ancestors evolved an essentially homogeneous culture, a basically common way of life where nature
was a primary factor. Community life throughout the archipelago was influenced by, and responded to, common
ecology. The generally benign tropical climate and the largely uniform flora and fauna favored similarities, not
differences.47 Life was essentially subsistence but not harsh.48
The early Filipinos had a culture that was basically Malayan in structure and form. They had languages that traced their
origin to the Austronesian parent-stock and used them not only as media of daily communication but also as vehicles for
the expression of their literary moods.49 They fashioned concepts and beliefs about the world that they could not see, but
which they sensed to be part of their lives.50 They had their own religion and religious beliefs. They believed in the
immortality of the soul and life after death. Their rituals were based on beliefs in a ranking deity whom they called
Bathalang Maykapal, and a host of other deities, in the environmental spirits and in soul spirits. The early Filipinos adored
the sun, the moon, the animals and birds, for they seemed to consider the objects of Nature as something to be
respected. They venerated almost any object that was close to their daily life, indicating the importance of the relationship
between man and the object of nature.51
The unit of government was the "barangay," a term that derived its meaning from the Malay word "balangay," meaning, a
boat, which transported them to these shores.52 The barangay was basically a family-based community and consisted of
thirty to one hundred families. Each barangay was different and ruled by a chieftain called a "dato." It was the chieftain's
duty to rule and govern his subjects and promote their welfare and interests. A chieftain had wide powers for he exercised
all the functions of government. He was the executive, legislator and judge and was the supreme commander in time of
war.53
Laws were either customary or written. Customary laws were handed down orally from generation to generation
and constituted the bulk of the laws of the barangay. They were preserved in songs and chants and in the memory of
the elder persons in the community.54 The written laws were those that the chieftain and his elders promulgated from time
to time as the necessity arose.55 The oldest known written body of laws was the Maragtas Code by Datu Sumakwel at
about 1250 A.D. Other old codes are the Muslim Code of Luwaran and the Principal Code of Sulu.56 Whether customary
or written, the laws dealt with various subjects, such as inheritance, divorce, usury, loans, partnership, crime and
punishment, property rights, family relations and adoption. Whenever disputes arose, these were decided peacefully
through a court composed by the chieftain as "judge" and the barangay elders as "jury." Conflicts arising between
subjects of different barangays were resolved by arbitration in which a board composed of elders from neutral barangays
acted as arbiters.57
Baranganic society had a distinguishing feature: the absence of private property in land. The chiefs merely
administered the lands in the name of the barangay. The social order was an extension of the family with chiefs
embodying the higher unity of the community. Each individual, therefore, participated in the community ownership of the
soil and the instruments of production as a member of the barangay. 58 This ancient communalism was practiced in
accordance with the concept of mutual sharing of resources so that no individual, regardless of status, was without
sustenance. Ownership of land was non-existent or unimportant and the right of usufruct was what regulated the
development of lands.59 Marine resources and fishing grounds were likewise free to all. Coastal communities depended
for their economic welfare on the kind of fishing sharing concept similar to those in land communities.60 Recognized
leaders, such as the chieftains and elders, by virtue of their positions of importance, enjoyed some economic privileges
and benefits. But their rights, related to either land and sea, were subject to their responsibility to protect the communities
from danger and to provide them with the leadership and means of survival. 61
Sometime in the 13th century, Islam was introduced to the archipelago in Maguindanao. The Sultanate of Sulu was
established and claimed jurisdiction over territorial areas represented today by Tawi-tawi, Sulu, Palawan, Basilan and
Zamboanga. Four ethnic groups were within this jurisdiction: Sama, Tausug, Yakan and Subanon. 62 The Sultanate of
Maguindanao spread out from Cotabato toward Maranao territory, now Lanao del Norte and Lanao del Sur. 63
The Muslim societies evolved an Asiatic form of feudalism where land was still held in common but was private
in use. This is clearly indicated in the Muslim Code of Luwaran. The Code contains a provision on the lease of cultivated
lands. It, however, has no provision for the acquisition, transfer, cession or sale of land. 64
The societies encountered by Magellan and Legaspi therefore were primitive economies where most production was
geared to the use of the producers and to the fulfillment of kinship obligations. They were not economies geared to
exchange and profit.65 Moreover, the family basis of barangay membership as well as of leadership and governance
worked to splinter the population of the islands into numerous small and separate communities. 66
When the Spaniards settled permanently in the Philippines in 1565, they found the Filipinos living in barangay
settlements scattered along water routes and river banks. One of the first tasks imposed on the missionaries and the
encomenderos was to collect all scattered Filipinos together in a reduccion.67 As early as 1551, the Spanish government
assumed an unvarying solicitous attitude towards the natives. 68 The Spaniards regarded it a sacred "duty to conscience
and humanity to civilize these less fortunate people living in the obscurity of ignorance" and to accord them the "moral and
material advantages" of community life and the "protection and vigilance afforded them by the same laws."69
The Spanish missionaries were ordered to establish pueblos where the church and convent would be constructed. All the
new Christian converts were required to construct their houses around the church and the unbaptized were invited to do
the same.70 With the reduccion, the Spaniards attempted to "tame" the reluctant Filipinos through Christian indoctrination
using the convento/casa real/plaza complex as focal point. The reduccion, to the Spaniards, was a "civilizing" device to
make the Filipinos law-abiding citizens of the Spanish Crown, and in the long run, to make them ultimately adopt Hispanic
culture and civilization.71
All lands lost by the old barangays in the process of pueblo organization as well as all lands not assigned to
them and the pueblos, were now declared to be crown lands or realengas, belonging to the Spanish king. It was
from the realengas that land grants were made to non-Filipinos.72
The abrogation of the Filipinos' ancestral rights in land and the introduction of the concept of public domain were
the most immediate fundamental results of Spanish colonial theory and law.73 The concept that the Spanish king
was the owner of everything of value in the Indies or colonies was imposed on the natives, and the natives were
stripped of their ancestral rights to land.74
Increasing their foothold in the Philippines, the Spanish colonialists, civil and religious, classified the Filipinos according to
their religious practices and beliefs, and divided them into three types . First were the Indios, the Christianized Filipinos,
who generally came from the lowland populations. Second, were the Moros or the Muslim communities, and third, were
the infieles or the indigenous communities.75
The Indio was a product of the advent of Spanish culture. This class was favored by the Spaniards and was allowed
certain status although below the Spaniards. The Moros and infieles were regarded as the lowest classes.76
The Moros and infieles resisted Spanish rule and Christianity. The Moros were driven from Manila and the Visayas to
Mindanao; while the infieles, to the hinterlands. The Spaniards did not pursue them into the deep interior. The upland
societies were naturally outside the immediate concern of Spanish interest, and the cliffs and forests of the hinterlands
were difficult and inaccessible, allowing the infieles, in effect, relative security.77 Thus, the infieles, which were peripheral
to colonial administration, were not only able to preserve their own culture but also thwarted the Christianization process,
separating themselves from the newly evolved Christian community. 78 Their own political, economic and social systems
were kept constantly alive and vibrant.
The pro-Christian or pro-Indio attitude of colonialism brought about a generally mutual feeling of suspicion, fear, and
hostility between the Christians on the one hand and the non-Christians on the other. Colonialism tended to divide and
rule an otherwise culturally and historically related populace through a colonial system that exploited both the virtues and
vices of the Filipinos.79
President McKinley, in his instructions to the Philippine Commission of April 7, 1900, addressed the existence of
the infieles:
"In dealing with the uncivilized tribes of the Islands, the Commission should adopt the same course followed by
Congress in permitting the tribes of our North American Indians to maintain their tribal organization and
government, and under which many of those tribes are now living in peace and contentment, surrounded by civilization to
which they are unable or unwilling to conform. Such tribal government should, however, be subjected to wise and firm
regulation; and, without undue or petty interference, constant and active effort should be exercised to prevent barbarous
practices and introduce civilized customs."80
Placed in an alternative of either letting the natives alone or guiding them in the path of civilization, the American
government chose "to adopt the latter measure as one more in accord with humanity and with the national conscience." 81
The Americans classified the Filipinos into two: the Christian Filipinos and the non-Christian Filipinos. The term
"non-Christian" referred not to religious belief, but to a geographical area, and more directly, "to natives of the Philippine
Islands of a low grade of civilization, usually living in tribal relationship apart from settled communities." 82
Like the Spaniards, the Americans pursued a policy of assimilation. In 1903, they passed Act No. 253 creating the
Bureau of Non-Christian Tribes (BNCT). Under the Department of the Interior, the BNCT's primary task was to conduct
ethnographic research among unhispanized Filipinos, including those in Muslim Mindanao, with a "special view to
determining the most practicable means for bringing about their advancement in civilization and prosperity." The BNCT
was modeled after the bureau dealing with American Indians. The agency took a keen anthropological interest in
Philippine cultural minorities and produced a wealth of valuable materials about them. 83
The 1935 Constitution did not carry any policy on the non-Christian Filipinos. The raging issue then was the
conservation of the national patrimony for the Filipinos.
In 1957, the Philippine Congress passed R.A. No. 1888, an "Act to effectuate in a more rapid and complete manner the
economic, social, moral and political advancement of the non-Christian Filipinos or national cultural minorities and to
render real, complete, and permanent the integration of all said national cultural minorities into the body politic, creating
the Commission on National Integration charged with said functions." The law called for a policy of integration of
indigenous peoples into the Philippine mainstream and for this purpose created the Commission on National
Integration (CNI).84 The CNI was given, more or less, the same task as the BNCT during the American regime. The
post-independence policy of integration was like the colonial policy of assimilation understood in the context of
a guardian-ward relationship.85
The policy of assimilation and integration did not yield the desired result. Like the Spaniards and Americans,
government attempts at integration met with fierce resistance. Since World War II, a tidal wave of Christian settlers
from the lowlands of Luzon and the Visayas swamped the highlands and wide open spaces in Mindanao. 86 Knowledge
by the settlers of the Public Land Acts and the Torrens system resulted in the titling of several ancestral lands in
the settlers' names. With government initiative and participation, this titling displaced several indigenous
peoples from their lands. Worse, these peoples were also displaced by projects undertaken by the national government
in the name of national development.87
It was in the 1973 Constitution that the State adopted the following provision:
"The State shall consider the customs, traditions, beliefs, and interests of national cultural communities in the formulation
and implementation of State policies."88
For the first time in Philippine history, the "non-Christian tribes" or the "cultural minorities" were addressed by
the highest law of the Republic, and they were referred to as "cultural communities." More importantly this time,
their "uncivilized" culture was given some recognition and their "customs, traditions, beliefs and interests" were to be
considered by the State in the formulation and implementation of State policies. President Marcos abolished the CNI and
transferred its functions to the Presidential Adviser on National Minorities (PANAMIN). The PANAMIN was tasked to
integrate the ethnic groups that sought full integration into the larger community, and at the same time "protect the rights
of those who wish to preserve their original lifeways beside the larger community." 89 In short, while still adopting the
integration policy, the decree recognized the right of tribal Filipinos to preserve their way of life. 90
In 1974, President Marcos promulgated P.D. No. 410, otherwise known as the Ancestral Lands Decree. The decree
provided for the issuance of land occupancy certificates to members of the national cultural communities who were given
up to 1984 to register their claims.91 In 1979, the Commission on the Settlement of Land Problems was created under
E.O. No. 561 which provided a mechanism for the expeditious resolution of land problems involving small settlers,
landowners, and tribal Filipinos.92
Despite the promulgation of these laws, from 1974 to the early 1980's, some 100,000 Kalingas and Bontoks of the
Cordillera region were displaced by the Chico River dam project of the National Power Corporation (NPC). The Manobos
of Bukidnon saw their land bulldozed by the Bukidnon Sugar Industries Company (BUSCO). In Agusan del Sur, the
National Development Company was authorized by law in 1979 to take approximately 40,550 hectares of land that later
became the NDC-Guthrie plantation in Agusan del Sur. Most of the land was possessed by the Agusan natives.93 Timber
concessions, water projects, plantations, mining, and cattle ranching and other projects of the national government led not
only to the eviction of the indigenous peoples from their land but also to the reduction and destruction of their natural
environment.94
The Aquino government signified a total shift from the policy of integration to one of preservation. Invoking her
powers under the Freedom Constitution, President Aquino created the Office of Muslim Affairs, Office for Northern
Cultural Communities and the Office for Southern Cultural Communities all under the Office of the President. 95
The 1987 Constitution carries at least six (6) provisions which insure the right of tribal Filipinos to preserve their
way of life.96 This Constitution goes further than the 1973 Constitution by expressly guaranteeing the rights of
tribal Filipinos to their ancestral domains and ancestral lands. By recognizing their right to their ancestral lands
and domains, the State has effectively upheld their right to live in a culture distinctly their own.
2. Their Concept of Land
Indigenous peoples share distinctive traits that set them apart from the Filipino mainstream. They are non-Christians.
They live in less accessible, marginal, mostly upland areas. They have a system of self-government not dependent upon
the laws of the central administration of the Republic of the Philippines. They follow ways of life and customs that are
perceived as different from those of the rest of the population.97 The kind of response the indigenous peoples chose to
deal with colonial threat worked well to their advantage by making it difficult for Western concepts and religion to erode
their customs and traditions. The "infieles societies" which had become peripheral to colonial administration, represented,
from a cultural perspective, a much older base of archipelagic culture. The political systems were still structured on the
patriarchal and kinship oriented arrangement of power and authority. The economic activities were governed by the
concepts of an ancient communalism and mutual help. The social structure which emphasized division of labor and
distinction of functions, not status, was maintained. The cultural styles and forms of life portraying the varieties of social
courtesies and ecological adjustments were kept constantly vibrant. 98
Land is the central element of the indigenous peoples' existence. There is no traditional concept of permanent,
individual, land ownership. Among the Igorots, ownership of land more accurately applies to the tribal right to use the land
or to territorial control. The people are the secondary owners or stewards of the land and that if a member of the tribe
ceases to work, he loses his claim of ownership, and the land reverts to the beings of the spirit world who are its true and
primary owners. Under the concept of "trusteeship," the right to possess the land does not only belong to the present
generation but the future ones as well.99
Customary law on land rests on the traditional belief that no one owns the land except the gods and spirits, and that
those who work the land are its mere stewards.100 Customary law has a strong preference for communal
ownership, which could either be ownership by a group of individuals or families who are related by blood or by
marriage,101 or ownership by residents of the same locality who may not be related by blood or marriage. The system of
communal ownership under customary laws draws its meaning from the subsistence and highly collectivized mode of
economic production. The Kalingas, for instance, who are engaged in team occupation like hunting, foraging for forest
products, and swidden farming found it natural that forest areas, swidden farms, orchards, pasture and burial grounds
should be communally-owned.102 For the Kalingas, everybody has a common right to a common economic base. Thus, as
a rule, rights and obligations to the land are shared in common.
Although highly bent on communal ownership, customary law on land also sanctions individual ownership. The
residential lots and terrace rice farms are governed by a limited system of individual ownership. It is limited because
while the individual owner has the right to use and dispose of the property, he does not possess all the rights of an
exclusive and full owner as defined under our Civil Code.103 Under Kalinga customary law, the alienation of individually-
owned land is strongly discouraged except in marriage and succession and except to meet sudden financial needs due to
sickness, death in the family, or loss of crops.104 Moreover, and to be alienated should first be offered to a clan-member
before any village-member can purchase it, and in no case may land be sold to a non-member of the ili.105
Land titles do not exist in the indigenous peoples' economic and social system. The concept of individual land
ownership under the civil law is alien to them. Inherently colonial in origin, our national land laws and
governmental policies frown upon indigenous claims to ancestral lands. Communal ownership is looked upon as
inferior, if not inexistent.106
III. THE IPRA IS A NOVEL PIECE OF LEGISLATION.
A. The Legislative History of the IPRA
It was to address the centuries-old neglect of the Philippine indigenous peoples that the Tenth Congress of the
Philippines, by their joint efforts, passed and approved R.A. No. 8371, the Indigenous Peoples Rights Act (IPRA) of
1997. The law was a consolidation of two Bills- Senate Bill No. 1728 and House Bill No. 9125.
Principally sponsored by Senator Juan M. Flavier,107 Senate Bill No. 1728 was a consolidation of four proposed
measures referred to the Committees on Cultural Communities, Environment and Natural Resources, Ways and Means,
as well as Finance. It adopted almost en toto the comprehensive version of Senate Bill Nos. 1476 and 1486 which was a
result of six regional consultations and one national consultation with indigenous peoples nationwide.108 At the
Second Regular Session of the Tenth Congress, Senator Flavier, in his sponsorship speech, gave a background on the
situation of indigenous peoples in the Philippines, to wit:
"The Indigenous Cultural Communities, including the Bangsa Moro, have long suffered from the dominance and neglect of
government controlled by the majority. Massive migration of their Christian brothers to their homeland shrunk their territory
and many of the tribal Filipinos were pushed to the hinterlands. Resisting the intrusion, dispossessed of their ancestral
land and with the massive exploitation of their natural resources by the elite among the migrant population, they became
marginalized. And the government has been an indispensable party to this insidious conspiracy against the Indigenous
Cultural Communities (ICCs). It organized and supported the resettlement of people to their ancestral land, which was
massive during the Commonwealth and early years of the Philippine Republic. Pursuant to the Regalian Doctrine first
introduced to our system by Spain through the Royal Decree of 13 February 1894 or the Maura Law, the government
passed laws to legitimize the wholesale landgrabbing and provide for easy titling or grant of lands to migrant
homesteaders within the traditional areas of the ICCs."109
Senator Flavier further declared:
"The IPs are the offsprings and heirs of the peoples who have first inhabited and cared for the land long before any central
government was established. Their ancestors had territories over which they ruled themselves and related with other
tribes. These territories- the land- include people, their dwelling, the mountains, the water, the air, plants, forest and the
animals. This is their environment in its totality. Their existence as indigenous peoples is manifested in their own lives
through political, economic, socio-cultural and spiritual practices. The IPs culture is the living and irrefutable proof to this.
Their survival depends on securing or acquiring land rights; asserting their rights to it; and depending on it. Otherwise, IPs
shall cease to exist as distinct peoples."110
To recognize the rights of the indigenous peoples effectively, Senator Flavier proposed a bill based on two
postulates: (1) the concept of native title; and (2) the principle of parens patriae.
According to Senator Flavier, "[w]hile our legal tradition subscribes to the Regalian Doctrine reinstated in Section 2, Article
XII of the 1987 Constitution," our "decisional laws" and jurisprudence passed by the State have "made exception to the
doctrine." This exception was first laid down in the case of Cariño v. Insular Government where:
"x x x the court has recognized long occupancy of land by an indigenous member of the cultural communities as one of
private ownership, which, in legal concept, is termed "native title." This ruling has not been overturned. In fact, it was
affirmed in subsequent cases."111
Following Cariño, the State passed Act No. 926, Act No. 2874, C.A. No. 141, P.D. 705, P.D. 410, P.D. 1529, R.A. 6734
(the Organic Act for the Autonomous Region of Muslim Mindanao). These laws, explicitly or implicitly, and liberally or
restrictively, recognized "native title" or "private right" and the existence of ancestral lands and domains. Despite the
passage of these laws, however, Senator Flavier continued:
"x x x the executive department of government since the American occupation has not implemented the policy. In fact, it
was more honored in its breach than in its observance, its wanton disregard shown during the period unto the
Commonwealth and the early years of the Philippine Republic when government organized and supported massive
resettlement of the people to the land of the ICCs."
Senate Bill No. 1728 seeks to genuinely recognize the IPs right to own and possess their ancestral land. The bill was
prepared also under the principle of parens patriae inherent in the supreme power of the State and deeply embedded in
Philippine legal tradition. This principle mandates that persons suffering from serious disadvantage or handicap, which
places them in a position of actual inequality in their relation or transaction with others, are entitled to the protection of the
State.
Senate Bill No. 1728 was passed on Third Reading by twenty-one (21) Senators voting in favor and none against,
with no abstention.112
House Bill No. 9125 was sponsored by Rep. Zapata, Chairman of the Committee on Cultural Communities. It was
originally authored and subsequently presented and defended on the floor by Rep. Gregorio Andolana of North
Cotabato.113
Rep. Andolana's sponsorhip speech reads as follows:
"This Representation, as early as in the 8th Congress, filed a bill of similar implications that would promote, recognize the
rights of indigenous cultural communities within the framework of national unity and development.
Apart from this, Mr. Speaker, is our obligation, the government's obligation to assure and ascertain that these rights shall
be well-preserved and the cultural traditions as well as the indigenous laws that remained long before this Republic was
established shall be preserved and promoted. There is a need, Mr. Speaker, to look into these matters seriously and early
approval of the substitute bill shall bring into reality the aspirations, the hope and the dreams of more than 12 million
Filipinos that they be considered in the mainstream of the Philippine society as we fashion for the year 2000." 114
Rep. Andolana stressed that H.B. No. 9125 is based on the policy of preservation as mandated in the Constitution. He
also emphasized that the rights of IPs to their land was enunciated in Cariño v. Insular Government which recognized
the fact that they had vested rights prior to the establishment of the Spanish and American regimes. 115
After exhaustive interpellation, House Bill No. 9125, and its corresponding amendments, was approved on
Second Reading with no objections.
IV. THE PROVISIONS OF THE IPRA DO NOT CONTRAVENE THE CONSTITUTION.
A. Ancestral Domains and Ancestral Lands are the Private Property of Indigenous Peoples and Do Not Constitute
Part of the Land of the Public Domain.
The IPRA grants to ICCs/IPs a distinct kind of ownership over ancestral domains and ancestral lands. Ancestral
lands are not the same as ancestral domains. These are defined in Section 3 [a] and [b] of the Indigenous Peoples Right
Act, viz:
"Sec. 3 a) Ancestral Domains. - Subject to Section 56 hereof, refer to all areas generally belonging to ICCs/IPs
comprising lands, inland waters, coastal areas, and natural resources therein, held under a claim of ownership, occupied
or possessed by ICCs/IPs by themselves or through their ancestors, communally or individually since time immemorial,
continuously to the present except when interrupted by war, force majeure or displacement by force, deceit, stealth or as
a consequence of government projects or any other voluntary dealings entered into by government and private
individuals/corporations, and which are necessary to ensure their economic, social and cultural welfare. It shall include
ancestral lands, forests, pasture, residential, agricultural, and other lands individually owned whether alienable and
disposable or otherwise, hunting grounds, burial grounds, worship areas, bodies of water, mineral and other natural
resources, and lands which may no longer be exclusively occupied by ICCs/IPs but from which they traditionally had
access to for their subsistence and traditional activities, particularly the home ranges of ICCs/IPs who are still nomadic
and/or shifting cultivators;
b) Ancestral Lands.- Subject to Section 56 hereof, refers to land occupied, possessed and utilized by individuals,
families and clans who are members of the ICCs/IPs since time immemorial, by themselves or through their
predecessors-in-interest, under claims of individual or traditional group ownership, continuously, to the present except
when interrupted by war, force majeure or displacement by force, deceit, stealth, or as a consequence of government
projects and other voluntary dealings entered into by government and private individuals/corporations, including, but not
limited to, residential lots, rice terraces or paddies, private forests, swidden farms and tree lots."
Ancestral domains are all areas belonging to ICCs/IPs held under a claim of ownership, occupied or possessed by
ICCs/IPs by themselves or through their ancestors, communally or individually since time immemorial, continuously until
the present, except when interrupted by war, force majeure or displacement by force, deceit, stealth or as a consequence
of government projects or any other voluntary dealings with government and/or private individuals or
corporations. Ancestral domains comprise lands, inland waters, coastal areas, and natural resources therein and
includes ancestral lands, forests, pasture, residential, agricultural, and other lands individually owned whether
alienable or not, hunting grounds, burial grounds, worship areas, bodies of water, mineral and other natural
resources. They also include lands which may no longer be exclusively occupied by ICCs/IPs but from which they
traditionally had access to for their subsistence and traditional activities, particularly the home ranges of ICCs/IPs who are
still nomadic and/or shifting cultivators.116
Ancestral lands are lands held by the ICCs/IPs under the same conditions as ancestral domains except that these are
limited to lands and that these lands are not merely occupied and possessed but are also utilized by the ICCs/IPs under
claims of individual or traditional group ownership. These lands include but are not limited to residential lots, rice terraces
or paddies, private forests, swidden farms and tree lots.117
The procedures for claiming ancestral domains and lands are similar to the procedures embodied in Department
Administrative Order (DAO) No. 2, series of 1993, signed by then Secretary of the Department of Environment and
Natural Resources (DENR) Angel Alcala.118 DAO No. 2 allowed the delineation of ancestral domains by special task
forces and ensured the issuance of Certificates of Ancestral Land Claims (CALC's) and Certificates of Ancestral Domain
Claims (CADC's) to IPs.
The identification and delineation of these ancestral domains and lands is a power conferred by the IPRA on the National
Commission on Indigenous Peoples (NCIP).119 The guiding principle in identification and delineation is self-
delineation.120 This means that the ICCs/IPs have a decisive role in determining the boundaries of their domains and in all
the activities pertinent thereto.121
The procedure for the delineation and recognition of ancestral domains is set forth in Sections 51 and 52 of the IPRA.
The identification, delineation and certification of ancestral lands is in Section 53 of said law.
Upon due application and compliance with the procedure provided under the law and upon finding by the NCIP that the
application is meritorious, the NCIP shall issue a Certificate of Ancestral Domain Title (CADT) in the name of the
community concerned.122 The allocation of lands within the ancestral domain to any individual or indigenous corporate
(family or clan) claimants is left to the ICCs/IPs concerned to decide in accordance with customs and traditions. 123 With
respect to ancestral lands outside the ancestral domain, the NCIP issues a Certificate of Ancestral Land Title
(CALT).124
CADT's and CALT's issued under the IPRA shall be registered by the NCIP before the Register of Deeds in the place
where the property is situated.125
(1) Right to Ancestral Domains and Ancestral Lands: How Acquired
The rights of the ICCs/IPs to their ancestral domains and ancestral lands may be acquired in two modes: (1) by native
title over both ancestral lands and domains; or (2) by torrens title under the Public Land Act and the Land
Registration Act with respect to ancestral lands only.
(2) The Concept of Native Title
Native title is defined as:
"Sec. 3 [l]. Native Title- refers to pre-conquest rights to lands and domains which, as far back as memory reaches, have
been held under a claim of private ownership by ICCs/IPs, have never been public lands and are thus indisputably
presumed to have been held that way since before the Spanish Conquest."126
Native title refers to ICCs/IPs' preconquest rights to lands and domains held under a claim of private ownership as far
back as memory reaches. These lands are deemed never to have been public lands and are indisputably presumed to
have been held that way since before the Spanish Conquest. The rights of ICCs/IPs to their ancestral domains (which
also include ancestral lands) by virtue of native title shall be recognized and respected. 127 Formal recognition, when
solicited by ICCs/IPs concerned, shall be embodied in a Certificate of Ancestral Domain Title (CADT), which shall
recognize the title of the concerned ICCs/IPs over the territories identified and delineated. 128
Like a torrens title, a CADT is evidence of private ownership of land by native title. Native title, however, is a right of
private ownership peculiarly granted to ICCs/IPs over their ancestral lands and domains. The IPRA categorically declares
ancestral lands and domains held by native title as never to have been public land. Domains and lands held under native
title are, therefore, indisputably presumed to have never been public lands and are private.
(a) Cariño v. Insular Government129
The concept of native title in the IPRA was taken from the 1909 case of Cariño v. Insular Government.130 Cariño firmly
established a concept of private land title that existed irrespective of any royal grant from the State.
In 1903, Don Mateo Cariño, an Ibaloi, sought to register with the land registration court 146 hectares of land in Baguio
Municipality, Benguet Province. He claimed that this land had been possessed and occupied by his ancestors since time
immemorial; that his grandfather built fences around the property for the holding of cattle and that his father cultivated
some parts of the land. Cariño inherited the land in accordance with Igorot custom. He tried to have the land adjusted
under the Spanish land laws, but no document issued from the Spanish Crown.131 In 1901, Cariño obtained a possessory
title to the land under the Spanish Mortgage Law.132 The North American colonial government, however, ignored his
possessory title and built a public road on the land prompting him to seek a Torrens title to his property in the land
registration court. While his petition was pending, a U.S. military reservation133 was proclaimed over his land and, shortly
thereafter, a military detachment was detailed on the property with orders to keep cattle and trespassers, including Cariño,
off the land.134
In 1904, the land registration court granted Cariño's application for absolute ownership to the land. Both the Government
of the Philippine Islands and the U.S. Government appealed to the C.F.I. of Benguet which reversed the land registration
court and dismissed Cariño's application. The Philippine Supreme Court 135 affirmed the C.F.I. by applying
the Valenton ruling. Cariño took the case to the U.S. Supreme Court.136 On one hand, the Philippine government invoked
the Regalian doctrine and contended that Cariño failed to comply with the provisions of the Royal Decree of June 25,
1880, which required registration of land claims within a limited period of time. Cariño, on the other, asserted that he was
the absolute owner of the land jure gentium, and that the land never formed part of the public domain.
In a unanimous decision written by Justice Oliver Wendell Holmes, the U.S. Supreme Court held:
"It is true that Spain, in its earlier decrees, embodied the universal feudal theory that all lands were held from the Crown,
and perhaps the general attitude of conquering nations toward people not recognized as entitled to the treatment
accorded to those in the same zone of civilization with themselves. It is true, also, that in legal theory, sovereignty is
absolute, and that, as against foreign nations, the United States may assert, as Spain asserted, absolute power. But it
does not follow that, as against the inhabitants of the Philippines, the United States asserts that Spain had such power.
When theory is left on one side, sovereignty is a question of strength, and may vary in degree. How far a new sovereign
shall insist upon the theoretical relation of the subjects to the head in the past, and how far it shall recognize actual facts,
are matters for it to decide."137
The U.S. Supreme Court noted that it need not accept Spanish doctrines. The choice was with the new colonizer.
Ultimately, the matter had to be decided under U.S. law.
The Cariño decision largely rested on the North American constitutionalist's concept of "due process" as well as the
pronounced policy "to do justice to the natives."138 It was based on the strong mandate extended to the Islands via the
Philippine Bill of 1902 that "No law shall be enacted in said islands which shall deprive any person of life, liberty, or
property without due process of law, or deny to any person therein the equal protection of the laws." The court declared:
"The acquisition of the Philippines was not like the settlement of the white race in the United States. Whatever
consideration may have been shown to the North American Indians, the dominant purpose of the whites in America was
to occupy land. It is obvious that, however stated, the reason for our taking over the Philippines was different. No one, we
suppose, would deny that, so far as consistent with paramount necessities, our first object in the internal administration of
the islands is to do justice to the natives, not to exploit their country for private gain. By the Organic Act of July 1, 1902,
chapter 1369, section 12 (32 Statutes at Large, 691), all the property and rights acquired there by the United States are to
be administered 'for the benefit of the inhabitants thereof.' It is reasonable to suppose that the attitude thus assumed by
the United States with regard to what was unquestionably its own is also its attitude in deciding what it will claim for its
own. The same statute made a bill of rights, embodying the safeguards of the Constitution, and, like the Constitution,
extends those safeguards to all. It provides that 'no law shall be enacted in said islands which shall deprive any person of
life, liberty, or property without due process of law, or deny to any person therein the equal protection of the laws.' In the
light of the declaration that we have quoted from section 12, it is hard to believe that the United States was ready to
declare in the next breath that "any person" did not embrace the inhabitants of Benguet, or that it meant by "property" only
that which had become such by ceremonies of which presumably a large part of the inhabitants never had heard, and that
it proposed to treat as public land what they, by native custom and by long association,- of the profoundest factors in
human thought,- regarded as their own."139
The Court went further:
"Every presumption is and ought to be against the government in a case like the present. It might, perhaps, be proper
and sufficient to say that when, as far back as testimony or memory goes, the land has been held by individuals
under a claim of private ownership, it will be presumed to have been held in the same way from before the
Spanish conquest, and never to have been public land. Certainly in a case like this, if there is doubt or ambiguity in
the Spanish law, we ought to give the applicant the benefit of the doubt."140
The court thus laid down the presumption of a certain title held (1) as far back as testimony or memory went, and (2)
under a claim of private ownership. Land held by this title is presumed to "never have been public land."
Against this presumption, the U.S. Supreme Court analyzed the Spanish decrees upheld in the 1904 decision of Valenton
v. Murciano. The U.S. Supreme Court found no proof that the Spanish decrees did not honor native title. On the
contrary, the decrees discussed in Valenton appeared to recognize that the natives owned some land, irrespective of any
royal grant. The Regalian doctrine declared in the preamble of the Recopilacion was all "theory and discourse" and it was
observed that titles were admitted to exist beyond the powers of the Crown, viz:
"If the applicant's case is to be tried by the law of Spain, we do not discover such clear proof that it was bad by
that law as to satisfy us that he does not own the land. To begin with, the older decrees and laws cited by the
counsel for the plaintiff in error seem to indicate pretty clearly that the natives were recognized as owning some
lands, irrespective of any royal grant. In other words, Spain did not assume to convert all the native inhabitants of the
Philippines into trespassers or even into tenants at will. For instance, Book 4, title 12, Law 14 of the the Recopilacion de
Leyes de las Indias, cited for a contrary conclusion in Valenton v. Murciano, 3 Philippine 537, while it commands viceroys
and others, when it seems proper, to call for the exhibition of grants, directs them to confirm those who hold by good
grants or justa prescripcion. It is true that it begins by the characteristic assertion of feudal overlordship and the
origin of all titles in the King or his predecessors. That was theory and discourse. The fact was that titles were
admitted to exist that owed nothing to the powers of Spain beyond this recognition in their books." (Emphasis
supplied).141
The court further stated that the Spanish "adjustment" proceedings never held sway over unconquered territories. The
wording of the Spanish laws were not framed in a manner as to convey to the natives that failure to register what to them
has always been their own would mean loss of such land. The registration requirement was "not to confer title, but simply
to establish it;" it was "not calculated to convey to the mind of an Igorot chief the notion that ancient family possessions
were in danger, if he had read every word of it."
By recognizing this kind of title, the court clearly repudiated the doctrine of Valenton. It was frank enough, however, to
admit the possibility that the applicant might have been deprived of his land under Spanish law because of the inherent
ambiguity of the decrees and concomitantly, the various interpretations which may be given them. But precisely because
of the ambiguity and of the strong "due process mandate" of the Constitution, the court validated this kind of
title.142 This title was sufficient, even without government administrative action, and entitled the holder to a Torrens
certificate. Justice Holmes explained:
"It will be perceived that the rights of the applicant under the Spanish law present a problem not without difficulties for
courts of a legal tradition. We have deemed it proper on that account to notice the possible effect of the change of
sovereignty and the act of Congress establishing the fundamental principles now to be observed. Upon a consideration of
the whole case we are of the opinion that law and justice require that the applicant should be granted what he seeks, and
should not be deprived of what, by the practice and belief of those among whom he lived, was his property, through a
refined interpretation of an almost forgotten law of Spain."143
Thus, the court ruled in favor of Cariño and ordered the registration of the 148 hectares in Baguio Municipality in
his name.144
Examining Cariño closer, the U.S. Supreme Court did not categorically refer to the title it upheld as "native title." It simply
said:
"The Province of Benguet was inhabited by a tribe that the Solicitor-General, in his argument, characterized as a
savage tribe that never was brought under the civil or military government of the Spanish Crown. It seems
probable, if not certain, that the Spanish officials would not have granted to anyone in that province the
registration to which formerly the plaintiff was entitled by the Spanish Laws, and which would have made his title
beyond question good. Whatever may have been the technical position of Spain it does not follow that, in the view of the
United States, he had lost all rights and was a mere trespasser when the present government seized his land. The
argument to that effect seems to amount to a denial of native titles through an important part of the Island of Luzon, at
least, for the want of ceremonies which the Spaniards would not have permitted and had not the power to enforce." 145
This is the only instance when Justice Holmes used the term "native title" in the entire length of the Cariño decision. It is
observed that the widespread use of the term "native title" may be traced to Professor Owen James Lynch, Jr., a Visiting
Professor at the University of the Philippines College of Law from the Yale University Law School. In 1982, Prof. Lynch
published an article in the Philippine Law Journal entitled Native Title, Private Right and Tribal Land Law.146 This
article was made after Professor Lynch visited over thirty tribal communities throughout the country and studied the origin
and development of Philippine land laws.147 He discussed Cariño extensively and used the term "native title" to refer to
Cariño's title as discussed and upheld by the U.S. Supreme Court in said case.
(b) Indian Title
In a footnote in the same article, Professor Lynch stated that the concept of "native title" as defined by Justice Holmes
in Cariño "is conceptually similar to "aboriginal title" of the American Indians.148 This is not surprising, according to Prof.
Lynch, considering that during the American regime, government policy towards ICCs/IPs was consistently made in
reference to native Americans.149 This was clearly demonstrated in the case of Rubi v. Provincial Board of Mindoro.150
In Rubi, the Provincial Board of Mindoro adopted a Resolution authorizing the provincial governor to remove the
Mangyans from their domains and place them in a permanent reservation in Sitio Tigbao, Lake Naujan. Any Mangyan
who refused to comply was to be imprisoned. Rubi and some Mangyans, including one who was imprisoned for trying to
escape from the reservation, filed for habeas corpus claiming deprivation of liberty under the Board Resolution. This Court
denied the petition on the ground of police power. It upheld government policy promoting the idea that a permanent
settlement was the only successful method for educating the Mangyans, introducing civilized customs, improving their
health and morals, and protecting the public forests in which they roamed. 151 Speaking through Justice Malcolm, the court
said:
"Reference was made in the President's instructions to the Commission to the policy adopted by the United States for the
Indian Tribes. The methods followed by the Government of the Philippine Islands in its dealings with the so-called non-
Christian people is said, on argument, to be practically identical with that followed by the United States Government in its
dealings with the Indian tribes. Valuable lessons, it is insisted, can be derived by an investigation of the American-Indian
policy.
From the beginning of the United States, and even before, the Indians have been treated as "in a state of pupilage." The
recognized relation between the Government of the United States and the Indians may be described as that of guardian
and ward. It is for the Congress to determine when and how the guardianship shall be terminated. The Indians are always
subject to the plenary authority of the United States.152
x x x.
As to the second point, the facts in the Standing Bear case and the Rubi case are not exactly identical. But even admitting
similarity of facts, yet it is known to all that Indian reservations do exist in the United States, that Indians have been taken
from different parts of the country and placed on these reservations, without any previous consultation as to their own
wishes, and that, when once so located, they have been made to remain on the reservation for their own good and for the
general good of the country. If any lesson can be drawn from the Indian policy of the United States, it is that the
determination of this policy is for the legislative and executive branches of the government and that when once so decided
upon, the courts should not interfere to upset a carefully planned governmental system. Perhaps, just as many forceful
reasons exist for the segregation of the Manguianes in Mindoro as existed for the segregation of the different Indian tribes
in the United States."153
Rubi applied the concept of Indian land grants or reservations in the Philippines. An Indian reservation is a part of the
public domain set apart by proper authority for the use and occupation of a tribe or tribes of Indians.154 It may be set apart
by an act of Congress, by treaty, or by executive order, but it cannot be established by custom and prescription. 155
Indian title to land, however, is not limited to land grants or reservations. It also covers the "aboriginal right of
possession or occupancy."156 The aboriginal right of possession depends on the actual occupancy of the lands in
question by the tribe or nation as their ancestral home, in the sense that such lands constitute definable territory occupied
exclusively by the particular tribe or nation.157 It is a right which exists apart from any treaty, statute, or other governmental
action, although in numerous instances treaties have been negotiated with Indian tribes, recognizing their aboriginal
possession and delimiting their occupancy rights or settling and adjusting their boundaries. 158
American jurisprudence recognizes the Indians' or native Americans' rights to land they have held and occupied
before the "discovery" of the Americas by the Europeans. The earliest definitive statement by the U.S. Supreme
Court on the nature of aboriginal title was made in 1823 in Johnson & Graham's Lessee v. M'Intosh.159
In Johnson, the plaintiffs claimed the land in question under two (2) grants made by the chiefs of two (2) Indian tribes.
The U.S. Supreme Court refused to recognize this conveyance, the plaintiffs being private persons. The only conveyance
that was recognized was that made by the Indians to the government of the European discoverer. Speaking for the court,
Chief Justice Marshall pointed out that the potentates of the old world believed that they had made ample compensation
to the inhabitants of the new world by bestowing civilization and Christianity upon them; but in addition, said the court,
they found it necessary, in order to avoid conflicting settlements and consequent war, to establish the principle
that discovery gives title to the government by whose subjects, or by whose authority, the discovery was made,
against all other European governments, which title might be consummated by possession. 160 The exclusion of all
other Europeans gave to the nation making the discovery the sole right of acquiring the soil from the natives and
establishing settlements upon it. As regards the natives, the court further stated that:
"Those relations which were to exist between the discoverer and the natives were to be regulated by themselves. The
rights thus acquired being exclusive, no other power could interpose between them.
In the establishment of these relations, the rights of the original inhabitants were, in no instance, entirely disregarded; but
were necessarily, to a considerable extent, impaired. They were admitted to be the rightful occupants of the soil, with
a legal as well as just claim to retain possession of it, and to use it according to their own discretion; but their
rights to complete sovereignty, as independent nations, were necessarily diminished, and their power to dispose of the
soil at their own will, to whomsoever they pleased, was denied by the fundamental principle that discovery gave exclusive
title to those who made it.
While the different nations of Europe respected the right of the natives as occupants, they asserted the ultimate
dominion to be in themselves; and claimed and exercised, as a consequence of this ultimate dominion, a power
to grant the soil, while yet in possession of the natives. These grants have been understood by all to convey a
title to the grantees, subject only to the Indian right of occupancy." 161
Thus, the discoverer of new territory was deemed to have obtained the exclusive right to acquire Indian land and
extinguish Indian titles. Only to the discoverer- whether to England, France, Spain or Holland- did this right belong and not
to any other nation or private person. The mere acquisition of the right nonetheless did not extinguish Indian claims to
land. Rather, until the discoverer, by purchase or conquest, exercised its right, the concerned Indians were recognized as
the "rightful occupants of the soil, with a legal as well as just claim to retain possession of it." Grants made by the
discoverer to her subjects of lands occupied by the Indians were held to convey a title to the grantees, subject only to the
Indian right of occupancy. Once the discoverer purchased the land from the Indians or conquered them, it was only then
that the discoverer gained an absolute title unrestricted by Indian rights.
The court concluded, in essence, that a grant of Indian lands by Indians could not convey a title paramount to the title of
the United States itself to other parties, saying:
"It has never been contended that the Indian title amounted to nothing. Their right of possession has never been
questioned. The claim of government extends to the complete ultimate title, charged with this right of
possession, and to the exclusive power of acquiring that right." 162
It has been said that the history of America, from its discovery to the present day, proves the universal recognition of this
principle.163
The Johnson doctrine was a compromise. It protected Indian rights and their native lands without having to invalidate
conveyances made by the government to many U.S. citizens.164
Johnson was reiterated in the case of Worcester v. Georgia.165 In this case, the State of Georgia enacted a law
requiring all white persons residing within the Cherokee nation to obtain a license or permit from the Governor of Georgia;
and any violation of the law was deemed a high misdemeanor. The plaintiffs, who were white missionaries, did not obtain
said license and were thus charged with a violation of the Act.
The U.S. Supreme Court declared the Act as unconstitutional for interfering with the treaties established between the
United States and the Cherokee nation as well as the Acts of Congress regulating intercourse with them. It characterized
the relationship between the United States government and the Indians as:
"The Indian nations were, from their situation, necessarily dependent on some foreign potentate for the supply of their
essential wants, and for their protection from lawless and injurious intrusions into their country. That power was naturally
termed their protector. They had been arranged under the protection of Great Britain; but the extinguishment of the British
power in their neighborhood, and the establishment of that of the United States in its place, led naturally to the
declaration, on the part of the Cherokees, that they were under the protection of the United States, and of no other power.
They assumed the relation with the United States which had before subsisted with Great Britain.
This relation was that of a nation claiming and receiving the protection of one more powerful, not that of individuals
abandoning their national character, and submitting as subjects to the laws of a master." 166
It was the policy of the U.S. government to treat the Indians as nations with distinct territorial boundaries and recognize
their right of occupancy over all the lands within their domains. Thus:
"From the commencement of our government Congress has passed acts to regulate trade and intercourse with the
Indians; which treat them as nations, respect their rights, and manifest a firm purpose to afford that protection which
treaties stipulate. All these acts, and especially that of 1802, which is still in force, manifestly consider the several Indian
nations as distinct political communities, having territorial boundaries, within which their authority is exclusive,
and having a right to all the lands within those boundaries, which is not only acknowledged, but guaranteed by
the United States.
x x x.
"The Indian nations had always been considered as distinct, independent political communities, retaining their
original natural rights, as the undisputed possessors of the soil from time immemorial, with the single exception of
that imposed by irresistible power, which excluded them from intercourse with any other European potentate than the first
discoverer of the coast of the particular region claimed: and this was a restriction which those European potentates
imposed on themselves, as well as on the Indians. The very term "nation," so generally applied to them, means "a people
distinct from others." x x x.167
The Cherokee nation, then, is a distinct community, occupying its own territory, with boundaries accurately described, in
which the laws of Georgia can have no force, and which the citizens of Georgia have no right to enter but with the assent
of the Cherokees themselves or in conformity with treaties and with the acts of Congress. The whole intercourse between
the United States and this nation is, by our Constitution and laws, vested in the government of the United States." 168
The discovery of the American continent gave title to the government of the discoverer as against all other European
governments. Designated as the naked fee,169 this title was to be consummated by possession and was subject to the
Indian title of occupancy. The discoverer acknowledged the Indians' legal and just claim to retain possession of the land,
the Indians being the original inhabitants of the land. The discoverer nonetheless asserted the exclusive right to acquire
the Indians' land- either by purchase, "defensive" conquest, or cession- and in so doing, extinguish the Indian title. Only
the discoverer could extinguish Indian title because it alone asserted ultimate dominion in itself. Thus, while the different
nations of Europe respected the rights of the natives as occupants, they all asserted the ultimate dominion and title to be
in themselves.170
As early as the 19th century, it became accepted doctrine that although fee title to the lands occupied by the
Indians when the colonists arrived became vested in the sovereign- first the discovering European nation and
later the original 13 States and the United States- a right of occupancy in the Indian tribes was nevertheless
recognized. The Federal Government continued the policy of respecting the Indian right of occupancy, sometimes called
Indian title, which it accorded the protection of complete ownership.171 But this aboriginal Indian interest simply constitutes
"permission" from the whites to occupy the land, and means mere possession not specifically recognized as ownership by
Congress.172 It is clear that this right of occupancy based upon aboriginal possession is not a property right.173 It is
vulnerable to affirmative action by the federal government who, as sovereign, possessed exclusive power to extinguish
the right of occupancy at will.174 Thus, aboriginal title is not the same as legal title. Aboriginal title rests on actual,
exclusive and continuous use and occupancy for a long time.175 It entails that land owned by Indian title must be used
within the tribe, subject to its laws and customs, and cannot be sold to another sovereign government nor to any
citizen.176 Such title as Indians have to possess and occupy land is in the tribe, and not in the individual Indian; the right of
individual Indians to share in the tribal property usually depends upon tribal membership, the property of the tribe
generally being held in communal ownership.177
As a rule, Indian lands are not included in the term "public lands," which is ordinarily used to designate such lands as are
subject to sale or other disposal under general laws. 178 Indian land which has been abandoned is deemed to fall into the
public domain.179 On the other hand, an Indian reservation is a part of the public domain set apart for the use and
occupation of a tribe of Indians.180 Once set apart by proper authority, the reservation ceases to be public land, and until
the Indian title is extinguished, no one but Congress can initiate any preferential right on, or restrict the nation's power to
dispose of, them.181
The American judiciary struggled for more than 200 years with the ancestral land claims of indigenous
Americans.182 And two things are clear. First, aboriginal title is recognized. Second, indigenous property systems are
also recognized. From a legal point of view, certain benefits can be drawn from a comparison of Philippine IPs to native
Americans.183 Despite the similarities between native title and aboriginal title, however, there are at present some
misgivings on whether jurisprudence on American Indians may be cited authoritatively in the Philippines. The U.S.
recognizes the possessory rights of the Indians over their land; title to the land, however, is deemed to have passed to the
U.S. as successor of the discoverer. The aboriginal title of ownership is not specifically recognized as ownership by action
authorized by Congress.184 The protection of aboriginal title merely guards against encroachment by persons other than
the Federal Government.185 Although there are criticisms against the refusal to recognize the native Americans' ownership
of these lands,186 the power of the State to extinguish these titles has remained firmly entrenched. 187
Under the IPRA, the Philippine State is not barred form asserting sovereignty over the ancestral domains and ancestral
lands.188 The IPRA, however, is still in its infancy and any similarities between its application in the Philippines vis-à-vis
American Jurisprudence on aboriginal title will depend on the peculiar facts of each case.
(c) Why the Cariño doctrine is unique

In the Philippines, the concept of native title first upheld in Cariño and enshrined in the IPRA grants ownership, albeit in
limited form, of the land to the ICCs/IPs. Native title presumes that the land is private and was never public. Cariño is the
only case that specifically and categorically recognizes native title. The long line of cases citing Cariño did not
touch on native title and the private character of ancestral domains and lands. Cariño was cited by the
succeeding cases to support the concept of acquisitive prescription under the Public Land Act which is a
different matter altogether. Under the Public Land Act, land sought to be registered must be public agricultural land.
When the conditions specified in Section 48 [b] of the Public Land Act are complied with, the possessor of the land is
deemed to have acquired, by operation of law, a right to a grant of the land.189 The land ceases to be part of the public
domain,190 ipso jure,191 and is converted to private property by the mere lapse or completion of the prescribed statutory
period.
It was only in the case of Oh Cho v. Director of Lands192 that the court declared that the rule that all lands that were not
acquired from the government, either by purchase or grant, belong to the public domain has an exception. This exception
would be any land that should have been in the possession of an occupant and of his predecessors-in-interest since time
immemorial. It is this kind of possession that would justify the presumption that the land had never been part of the public
domain or that it had been private property even before the Spanish conquest. 193 Oh Cho, however, was decided under
the provisions of the Public Land Act and Cariño was cited to support the applicant's claim of acquisitive prescription
under the said Act.
All these years, Cariño had been quoted out of context simply to justify long, continuous, open and adverse possession in
the concept of owner of public agricultural land. It is this long, continuous, open and adverse possession in the concept of
owner of thirty years both for ordinary citizens 194 and members of the national cultural minorities195 that converts the land
from public into private and entitles the registrant to a torrens certificate of title.
(3) The Option of Securing a Torrens Title to the Ancestral Land Indicates that the Land is Private.
The private character of ancestral lands and domains as laid down in the IPRA is further strengthened by the option
given to individual ICCs/IPs over their individually-owned ancestral lands. For purposes of registration under the
Public Land Act and the Land Registration Act, the IPRA expressly converts ancestral land into public
agricultural land which may be disposed of by the State. The necessary implication is that ancestral land is
private. It, however, has to be first converted to public agricultural land simply for registration purposes. To wit:
"Sec. 12. Option to Secure Certificate of Title Under Commonwealth Act 141, as amended, or the Land Registration Act
496- Individual members of cultural communities, with respect to their individually-owned ancestral lands who, by
themselves or through their predecessors-in-interest, have been in continuous possession and occupation of the same in
the concept of owner since time immemorial or for a period of not less than thirty (30) years immediately preceding the
approval of this Act and uncontested by the members of the same ICCs/IPs shall have the option to secure title to their
ancestral lands under the provisions of Commonwealth Act 141, as amended, or the Land Registration Act 496.
For this purpose, said individually-owned ancestral lands, which are agricultural in character and actually used for
agricultural, residential, pasture, and tree farming purposes, including those with a slope of eighteen percent (18%) or
more, are hereby classified as alienable and disposable agricultural lands.
The option granted under this section shall be exercised within twenty (20) years from the approval of this Act."196
ICCs/IPs are given the option to secure a torrens certificate of title over their individually-owned ancestral lands. This
option is limited to ancestral lands only, not domains, and such lands must be individually, not communally, owned.
Ancestral lands that are owned by individual members of ICCs/IPs who, by themselves or through their predecessors-in-
interest, have been in continuous possession and occupation of the same in the concept of owner since time
immemorial197 or for a period of not less than 30 years, which claims are uncontested by the members of the same
ICCs/IPs, may be registered under C.A. 141, otherwise known as the Public Land Act, or Act 496, the Land Registration
Act. For purposes of registration, the individually-owned ancestral lands are classified as alienable and disposable
agricultural lands of the public domain, provided, they are agricultural in character and are actually used for agricultural,
residential, pasture and tree farming purposes. These lands shall be classified as public agricultural lands regardless of
whether they have a slope of 18% or more.
The classification of ancestral land as public agricultural land is in compliance with the requirements of the Public Land
Act and the Land Registration Act. C.A. 141, the Public Land Act, deals specifically with lands of the public domain. 198 Its
provisions apply to those lands "declared open to disposition or concession" x x x "which have not been reserved for
public or quasi-public purposes, nor appropriated by the Government, nor in any manner become private property, nor
those on which a private right authorized and recognized by this Act or any other valid law x x x or which having been
reserved or appropriated, have ceased to be so."199 Act 496, the Land Registration Act, allows registration only of private
lands and public agricultural lands. Since ancestral domains and lands are private, if the ICC/IP wants to avail of the
benefits of C.A. 141 and Act 496, the IPRA itself converts his ancestral land, regardless of whether the land has a
slope of eighteen per cent (18%) or over,200 from private to public agricultural land for proper disposition.
The option to register land under the Public Land Act and the Land Registration Act has nonetheless a limited period. This
option must be exercised within twenty (20) years from October 29, 1997, the date of approval of the IPRA.
Thus, ancestral lands and ancestral domains are not part of the lands of the public domain. They are private and
belong to the ICCs/IPs. Section 3 of Article XII on National Economy and Patrimony of the 1987 Constitution classifies
lands of the public domain into four categories: (a) agricultural, (b) forest or timber, (c) mineral lands, and (d) national
parks. Section 5 of the same Article XII mentions ancestral lands and ancestral domains but it does not classify them
under any of the said four categories. To classify them as public lands under any one of the four classes will render
the entire IPRA law a nullity. The spirit of the IPRA lies in the distinct concept of ancestral domains and ancestral lands.
The IPRA addresses the major problem of the ICCs/IPs which is loss of land. Land and space are of vital concern in terms
of sheer survival of the ICCs/IPs.201
The 1987 Constitution mandates the State to "protect the rights of indigenous cultural communities to their
ancestral lands" and that "Congress provide for the applicability of customary laws x x x in determining the
ownership and extent of ancestral domain."202 It is the recognition of the ICCs/IPs distinct rights of ownership
over their ancestral domains and lands that breathes life into this constitutional mandate.
B. The right of ownership and possession by the ICCs/IPs of their ancestral domains is a limited form of
ownership and does not include the right to alienate the same.
Registration under the Public Land Act and Land Registration Act recognizes the concept of ownership under the civil
law. This ownership is based on adverse possession for a specified period, and harkens to Section 44 of the Public Land
Act on administrative legalization (free patent) of imperfect or incomplete titles and Section 48 (b) and (c) of the same Act
on the judicial confirmation of imperfect or incomplete titles. Thus:
"Sec. 44. Any natural-born citizen of the Philippines who is not the owner of more than twenty-four hectares and who
since July fourth, 1926 or prior thereto, has continuously occupied and cultivated, either by himself or through his
predecessors-in-interest, a tract or tracts of agricultural public lands subject to disposition, or who shall have paid the real
estate tax thereon while the same has not been occupied by any person shall be entitled, under the provisions of this
chapter, to have a free patent issued to him for such tract or tracts of such land not to exceed twenty-four hectares.
A member of the national cultural minorities who has continuously occupied and cultivated, either by himself or
through his predecessors-in-interest, a tract or tracts of land, whether disposable or not since July 4, 1955, shall
be entitled to the right granted in the preceding paragraph of this section: Provided, That at the time he files his
free patent application he is not the owner of any real property secured or disposable under the provision of the
Public Land Law.203
x x x.
"Sec. 48. The following described citizens of the Philippines, occupying lands of the public domain or claiming to own any
such lands or an interest therein, but whose titles have not been perfected or completed, may apply to the Court of First
Instance of the province where the land is located for confirmation of their claims and the issuance of a certificate of title
therefor, under the Land Registration Act, to wit:
(a) [perfection of Spanish titles] xxx.
(b) Those who by themselves or through their predecessors-in-interest have been in open, continuous, exclusive,
and notorious possession and occupation of agricultural lands of the public domain, under a bona fide claim of
acquisition or ownership, for at least thirty years immediately preceding the filing of the application for
confirmation of title except when prevented by war or force majeure. These shall be conclusively presumed to
have performed all the conditions essential to a Government grant and shall be entitled to a certificate of title
under the provisions of this Chapter.
(c) Members of the national cultural minorities who by themselves or through their predecessors-in-
interest have been in open, continuous, exclusive and notorious possession and occupation of lands of
the public domain suitable to agriculture, whether disposable or not, under a bona fide claim of
ownership for at least 30 years shall be entitled to the rights granted in sub-section (b) hereof."204
Registration under the foregoing provisions presumes that the land was originally public agricultural land but because of
adverse possession since July 4, 1955 (free patent) or at least thirty years (judicial confirmation), the land has become
private. Open, adverse, public and continuous possession is sufficient, provided, the possessor makes proper application
therefor. The possession has to be confirmed judicially or administratively after which a torrens title is issued.
A torrens title recognizes the owner whose name appears in the certificate as entitled to all the rights of ownership under
the civil law. The Civil Code of the Philippines defines ownership in Articles 427, 428 and 429. This concept is based on
Roman Law which the Spaniards introduced to the Philippines through the Civil Code of 1889. Ownership, under Roman
Law, may be exercised over things or rights. It primarily includes the right of the owner to enjoy and dispose of the thing
owned. And the right to enjoy and dispose of the thing includes the right to receive from the thing what it produces, 205 the
right to consume the thing by its use,206 the right to alienate, encumber, transform or even destroy the thing owned,207 and
the right to exclude from the possession of the thing owned by any other person to whom the owner has not transmitted
such thing.208
1. The Indigenous Concept of Ownership and Customary Law.
Ownership of ancestral domains by native title does not entitle the ICC/IP to a torrens title but to a Certificate of Ancestral
Domain Title (CADT). The CADT formally recognizes the indigenous concept of ownership of the ICCs/IPs over their
ancestral domain. Thus:
"Sec. 5. Indigenous concept of ownership.- Indigenous concept of ownership sustains the view that ancestral domains
and all resources found therein shall serve as the material bases of their cultural integrity. The indigenous concept of
ownership generally holds that ancestral domains are the ICCs/IPs private but community property which belongs to all
generations and therefore cannot be sold, disposed or destroyed. It likewise covers sustainable traditional resource
rights."
The right of ownership and possession of the ICCs/IPs to their ancestral domains is held under the indigenous
concept of ownership. This concept maintains the view that ancestral domains are the ICCs/IPs private but
community property. It is private simply because it is not part of the public domain. But its private character ends
there. The ancestral domain is owned in common by the ICCs/IPs and not by one particular person. The IPRA
itself provides that areas within the ancestral domains, whether delineated or not, are presumed to be communally
held.209 These communal rights, however, are not exactly the same as co-ownership rights under the Civil
Code.210 Co-ownership gives any co-owner the right to demand partition of the property held in common. The Civil Code
expressly provides that "no co-owner shall be obliged to remain in the co-ownership." Each co-owner may demand at any
time the partition of the thing in common, insofar as his share is concerned. 211 To allow such a right over ancestral
domains may be destructive not only of customary law of the community but of the very community itself.212
Communal rights over land are not the same as corporate rights over real property, much less corporate
condominium rights. A corporation can exist only for a maximum of fifty (50) years subject to an extension of another
fifty years in any single instance.213 Every stockholder has the right to disassociate himself from the
corporation.214 Moreover, the corporation itself may be dissolved voluntarily or involuntarily. 215
Communal rights to the land are held not only by the present possessors of the land but extends to all
generations of the ICCs/IPs, past, present and future, to the domain. This is the reason why the ancestral domain
must be kept within the ICCs/IPs themselves. The domain cannot be transferred, sold or conveyed to other persons. It
belongs to the ICCs/IPs as a community.
Ancestral lands are also held under the indigenous concept of ownership. The lands are communal. These lands,
however, may be transferred subject to the following limitations: (a) only to the members of the same ICCs/IPs; (b) in
accord with customary laws and traditions; and (c) subject to the right of redemption of the ICCs/IPs for a period of 15
years if the land was transferred to a non-member of the ICCs/IPs.
Following the constitutional mandate that "customary law govern property rights or relations in determining the ownership
and extent of ancestral domains,"216 the IPRA, by legislative fiat, introduces a new concept of ownership. This is a
concept that has long existed under customary law.217
Custom, from which customary law is derived, is also recognized under the Civil Code as a source of
law.218 Some articles of the Civil Code expressly provide that custom should be applied in cases where no codal provision
is applicable.219 In other words, in the absence of any applicable provision in the Civil Code, custom, when duly proven,
can define rights and liabilities.220
Customary law is a primary, not secondary, source of rights under the IPRA and uniquely applies to ICCs/IPs. Its
recognition does not depend on the absence of a specific provision in the civil law. The indigenous concept of
ownership under customary law is specifically acknowledged and recognized, and coexists with the civil law concept and
the laws on land titling and land registration.221
To be sure, the indigenous concept of ownership exists even without a paper title. The CADT is merely a "formal
recognition" of native title. This is clear from Section 11 of the IPRA, to wit:
"Sec. 11. Recognition of Ancestral Domain Rights.- The rights of ICCs/IPs to their ancestral domains by virtue of Native
Title shall be recognized and respected. Formal recognition, when solicited by ICCs/IPs concerned shall be embodied in a
Certificate of Ancestral Domain Title, which shall recognize the title of the concerned ICCs/IPs over the territories
identified and delineated."
The moral import of ancestral domain, native land or being native is "belongingness" to the land, being people of the land-
by sheer force of having sprung from the land since time beyond recall, and the faithful nurture of the land by the sweat of
one's brow. This is fidelity of usufructuary relation to the land- the possession of stewardship through perduring, intimate
tillage, and the mutuality of blessings between man and land; from man, care for land; from the land, sustenance for
man.222
C. Sections 7 (a), 7 (b) and 57 of the IPRA Do Not Violate the Regalian Doctrine Enshrined in Section 2, Article XII
of the 1987 Constitution.
1. The Rights of ICCs/IPs Over Their Ancestral Domains and Lands
The IPRA grants the ICCs/IPs several rights over their ancestral domains and ancestral lands. Section 7 provides for the
rights over ancestral domains:
"Sec. 7. Rights to Ancestral Domains.- The rights of ownership and possession of ICCs/IPs to their ancestral domains
shall be recognized and protected. Such rights include:
a) Right of Ownership.- The right to claim ownership over lands, bodies of water traditionally and actually
occupied by ICCs/IPs, sacred places, traditional hunting and fishing grounds, and all improvements made
by them at any time within the domains;
b) Right to Develop Lands and Natural Resources.- Subject to Section 56 hereof, the right to develop, control
and use lands and territories traditionally occupied, owned, or used; to manage and conserve natural
resources within the territories and uphold the responsibilities for future generations; to benefit and
share the profits from allocation and utilization of the natural resources found therein; the right to
negotiate the terms and conditions for the exploration of natural resources in the areas for the purpose of
ensuring ecological, environmental protection and the conservation measures, pursuant to national and
customary laws; the right to an informed and intelligent participation in the formulation and implementation of
any project, government or private, that will affect or impact upon the ancestral domains and to receive just and
fair compensation for any damages which they may sustain as a result of the project; and the right to effective
measures by the government to prevent any interference with, alienation and encroachment upon these rights;"
c) Right to Stay in the Territories.- The right to stay in the territory and not to be removed therefrom. No ICCs/IPs
will be relocated without their free and prior informed consent, nor through any means other than eminent domain.
x x x;
d) Right in Case of Displacement.- In case displacement occurs as a result of natural catastrophes, the State shall
endeavor to resettle the displaced ICCs/IPs in suitable areas where they can have temporary life support
systems: x x x;
e) Right to Regulate the Entry of Migrants.- Right to regulate the entry of migrant settlers and organizations into
their domains;
f) Right to Safe and Clean Air and Water.-For this purpose, the ICCs/IPs shall have access to integrated systems
for the management of their inland waters and air space;
g) Right to Claim Parts of Reservations.- The right to claim parts of the ancestral domains which have been
reserved for various purposes, except those reserved and intended for common and public welfare and service;
h) Right to Resolve Conflict.- Right to resolve land conflicts in accordance with customary laws of the area where
the land is located, and only in default thereof shall the complaints be submitted to amicable settlement and to the
Courts of Justice whenever necessary."
Section 8 provides for the rights over ancestral lands:
"Sec. 8. Rights to Ancestral Lands.- The right of ownership and possession of the ICCs/IPs to their ancestral lands shall
be recognized and protected.
a) Right to transfer land/property.- Such right shall include the right to transfer land or property rights to/among
members of the same ICCs/IPs, subject to customary laws and traditions of the community concerned.
b) Right to Redemption.- In cases where it is shown that the transfer of land/property rights by virtue of any
agreement or devise, to a non-member of the concerned ICCs/IPs is tainted by the vitiated consent of the
ICCs/IPs, or is transferred for an unconscionable consideration or price, the transferor ICC/IP shall have the right
to redeem the same within a period not exceeding fifteen (15) years from the date of transfer."
Section 7 (a) defines the ICCs/IPs the right of ownership over their ancestral domains which covers (a) lands, (b)
bodies of water traditionally and actually occupied by the ICCs/IPs, (c) sacred places, (d) traditional hunting and fishing
grounds, and (e) all improvements made by them at any time within the domains. The right of ownership includes the
following rights: (1) the right to develop lands and natural resources; (b) the right to stay in the territories; (c) the right to
resettlement in case of displacement; (d) the right to regulate the entry of migrants; (e) the right to safe and clean air and
water; (f) the right to claim parts of the ancestral domains as reservations; and (g) the right to resolve conflict in
accordance with customary laws.
Section 8 governs their rights to ancestral lands. Unlike ownership over the ancestral domains, Section 8 gives the
ICCs/IPs also the right to transfer the land or property rights to members of the same ICCs/IPs or non-members thereof.
This is in keeping with the option given to ICCs/IPs to secure a torrens title over the ancestral lands, but not to domains.
2. The Right of ICCs/IPs to Develop Lands and Natural Resources Within the Ancestral Domains Does Not Deprive the
State of Ownership Over the Natural Resources and Control and Supervision in their Development and Exploitation.
The Regalian doctrine on the ownership, management and utilization of natural resources is declared in Section 2,
Article XII of the 1987 Constitution, viz:
"Sec. 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of
potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by
the State. With the exception of agricultural lands, all other natural resources shall not be alienated. The exploration,
development, and utilization of natural resources shall be under the full control and supervision of the State. The
State may directly undertake such activities, or, it may enter into co-production, joint venture, or production-
sharing agreements with Filipino citizens, or corporations or associations at least sixty per centum of whose
capital is owned by such citizens. Such agreements may be for a period not exceeding twenty-five years, renewable for
not more than twenty-five years, and under such terms and conditions as may be provided by law. In cases of water rights
for irrigation, water supply, fisheries, water supply, fisheries, or industrial uses other than the development of water power,
beneficial use may be the measure and limit of the grant.
The State shall protect the nation's marine wealth in its archipelagic waters, territorial sea, and exclusive economic zone,
and reserve its use and enjoyment exclusively to Filipino citizens.
The Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens, as well as
cooperative fish farming, with priority to subsistence fishermen and fishworkers in rivers, lakes, bays, and lagoons.
The President may enter into agreements with foreign-owned corporations involving either technical or financial
assistance for large-scale exploration, development, and utilization of minerals, petroleum, and other mineral
oils according to the general terms and conditions provided by law, based on real contributions to the economic growth
and general welfare of the country. In such agreements, the state shall promote the development and use of local
scientific and technical resources.
The President shall notify the Congress of every contract entered into in accordance with this provision, within thirty days
from its execution."223
All lands of the public domain and all natural resources- waters, minerals, coal, petroleum, and other mineral oils, all
forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources- are owned by
the State. The Constitution provides that in the exploration, development and utilization of these natural resources, the
State exercises full control and supervision, and may undertake the same in four (4) modes:
1. The State may directly undertake such activities; or
2. The State may enter into co-production, joint venture or production-sharing agreements with Filipino citizens or
qualified corporations;
3. Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens;
4. For the large-scale exploration, development and utilization of minerals, petroleum and other mineral oils, the
President may enter into agreements with foreign-owned corporations involving technical or financial assistance.
As owner of the natural resources, the State is accorded primary power and responsibility in the exploration,
development and utilization of these natural resources. The State may directly undertake the exploitation and
development by itself, or, it may allow participation by the private sector through co-production,224 joint venture,225 or
production-sharing agreements.226 These agreements may be for a period of 25 years, renewable for another 25 years.
The State, through Congress, may allow the small-scale utilization of natural resources by Filipino citizens. For the large-
scale exploration of these resources, specifically minerals, petroleum and other mineral oils, the State, through the
President, may enter into technical and financial assistance agreements with foreign-owned corporations.
Under the Philippine Mining Act of 1995, (R.A. 7942) and the People's Small-Scale Mining Act of 1991 (R.A. 7076) the
three types of agreements, i.e., co-production, joint venture or production-sharing, may apply to both large-scale227 and
small-scale mining.228 "Small-scale mining" refers to "mining activities which rely heavily on manual labor using simple
implements and methods and do not use explosives or heavy mining equipment."229
Examining the IPRA, there is nothing in the law that grants to the ICCs/IPs ownership over the natural resources
within their ancestral domains. The right of ICCs/IPs in their ancestral domains includes ownership, but this
"ownership" is expressly defined and limited in Section 7 (a) as:
"Sec. 7. a) Right of ownership- The right to claim ownership over lands, bodies of water traditionally and actually occupied
by ICCs/IPs, sacred places, traditional hunting and fishing grounds, and all improvements made by them at any time
within the domains;"
The ICCs/IPs are given the right to claim ownership over "lands, bodies of water traditionally and actually occupied by
ICCs/IPs, sacred places, traditional hunting and fishing grounds, and all improvements made by them at any time within
the domains." It will be noted that this enumeration does not mention bodies of water not occupied by the
ICCs/IPs, minerals, coal, wildlife, flora and fauna in the traditional hunting grounds, fish in the traditional fishing
grounds, forests or timber in the sacred places, etc. and all other natural resources found within the ancestral
domains. Indeed, the right of ownership under Section 7 (a) does not cover
"waters, minerals, coal, petroleum and other mineral oils, all forces of potential
energy, fisheries, forests or timber, wildlife, flora and fauna and all other natural resources" enumerated in
Section 2, Article XII of the 1987 Constitution as belonging to the State.
The non-inclusion of ownership by the ICCs/IPs over the natural resources in Section 7(a) complies with the Regalian
doctrine.
(a) Section 1, Part II, Rule III of the Implementing Rules Goes Beyond the Parameters of Sec. 7 (a) of the IPRA And
is Unconstitutional.
The Rules Implementing the IPRA230 in Section 1, Part II, Rule III reads:
"Section 1. Rights of Ownership. ICCs/IPs have rights of ownership over lands, waters, and natural resources and all
improvements made by them at any time within the ancestral domains/ lands. These rights shall include, but not limited to,
the right over the fruits, the right to possess, the right to use, right to consume, right to exclude and right to recover
ownership, and the rights or interests over land and natural resources. The right to recover shall be particularly applied to
lands lost through fraud or any form or vitiated consent or transferred for an unconscionable price."
Section 1 of the Implementing Rules gives the ICCs/IPs rights of ownership over "lands, waters and natural resources."
The term "natural resources" is not one of those expressly mentioned in Section 7 (a) of the law. Our Constitution and
jurisprudence clearly declare that the right to claim ownership over land does not necessarily include the right to claim
ownership over the natural resources found on or under the land. 231 The IPRA itself makes a distinction between land
and natural resources. Section 7 (a) speaks of the right of ownership only over the land within the ancestral
domain. It is Sections 7 (b) and 57 of the law that speak of natural resources, and these provisions, as shall be
discussed later, do not give the ICCs/IPs the right of ownership over these resources.
The constitutionality of Section 1, Part II, Rule III of the Implementing Rules was not specifically and categorically
challenged by petitioners. Petitioners actually assail the constitutionality of the Implementing Rules in
general.232 Nevertheless, to avoid any confusion in the implementation of the law, it is necessary to declare that the
inclusion of "natural resources" in Section 1, Part II, Rule III of the Implementing Rules goes beyond the parameters of
Section 7 (b) of the law and is contrary to Section 2, Article XII of the 1987 Constitution.
(b) The Small-Scale Utilization of Natural Resources In Sec. 7 (b) of the IPRA Is Allowed Under Paragraph 3,
Section 2 of Article XII of the Constitution.
Ownership over natural resources remain with the State and the IPRA in Section 7 (b) merely grants the ICCs/IPs the
right to manage them, viz:
"Sec. 7 (b) Right to Develop Lands and Natural Resources.- Subject to Section 56 hereof, right to develop, control and
use lands and territories traditionally occupied, owned, or used; to manage and conserve natural resources within the
territories and uphold the responsibilities for future generations; to benefit and share the profits from allocation and
utilization of the natural resources found therein; the right to negotiate the terms and conditions for the exploration of
natural resources in the areas for the purpose of ensuring ecological, environmental protection and the conservation
measures, pursuant to national and customary laws; the right to an informed and intelligent participation in the formulation
and implementation of any project, government or private, that will affect or impact upon the ancestral domains and to
receive just and fair compensation for any damages which they may sustain as a result of the project; and the right to
effective measures by the government to prevent any interference with, alienation and encroachment upon these rights;"
The right to develop lands and natural resources under Section 7 (b) of the IPRA enumerates the following rights:
a) the right to develop, control and use lands and territories traditionally occupied;
b) the right to manage and conserve natural resources within the territories and uphold the responsibilities for
future generations;
c) the right to benefit and share the profits from the allocation and utilization of the natural resources found
therein;
d) the right to negotiate the terms and conditions for the exploration of natural resources for the purpose of
ensuring ecological, environmental protection and the conservation measures, pursuant to national and
customary laws;
e) the right to an informed and intelligent participation in the formulation and implementation of any project,
government or private, that will affect or impact upon the ancestral domains and to receive just and fair
compensation for any damages which they may sustain as a result of the project;
f) the right to effective measures by the government to prevent any interference with, alienation and
encroachment upon these rights.233
Ownership over the natural resources in the ancestral domains remains with the State and the ICCs/IPs are
merely granted the right to "manage and conserve" them for future generations, "benefit and share" the profits
from their allocation and utilization, and "negotiate the terms and conditions for their exploration" for the
purpose of "ensuring ecological and environmental protection and conservation measures." It must be noted that
the right to negotiate the terms and conditions over the natural resources covers only their exploration which must be for
the purpose of ensuring ecological and environmental protection of, and conservation measures in the ancestral domain.
It does not extend to the exploitation and development of natural resources.
Simply stated, the ICCs/IPs' rights over the natural resources take the form of management or stewardship. For
the ICCs/IPs may use these resources and share in the profits of their utilization or negotiate the terms for their
exploration. At the same time, however, the ICCs/IPs must ensure that the natural resources within their ancestral
domains are conserved for future generations and that the "utilization" of these resources must not harm the ecology and
environment pursuant to national and customary laws.234
The limited rights of "management and use" in Section 7 (b) must be taken to contemplate small-scale utilization
of natural resources as distinguished from large-scale. Small-scale utilization of natural resources is expressly
allowed in the third paragraph of Section 2, Article XII of the Constitution "in recognition of the plight of forest
dwellers, gold panners, marginal fishermen and others similarly situated who exploit our natural resources for their daily
sustenance and survival."235 Section 7 (b) also expressly mandates the ICCs/IPs to manage and conserve these
resources and ensure environmental and ecological protection within the domains, which duties, by their very nature,
necessarily reject utilization in a large-scale.
(c) The Large-Scale Utilization of Natural Resources In Section 57 of the IPRA Is Allowed Under Paragraphs 1 and
4, Section 2, Article XII of the 1987 Constitution.
Section 57 of the IPRA provides:
"Sec. 57. Natural Resources within Ancestral Domains.- The ICCs/IPs shall have priority rights in the harvesting,
extraction, development or exploitation of any natural resources within the ancestral domains. A non-member of the
ICCs/IPs concerned may be allowed to take part in the development and utilization of the natural resources for a period of
not exceeding twenty-five (25) years renewable for not more than twenty-five (25) years: Provided, That a formal and
written agreement is entered into with the ICCs/IPs concerned or that the community, pursuant to its own decision-making
process, has agreed to allow such operation: Provided finally, That the NCIP may exercise visitorial powers and take
appropriate action to safeguard the rights of the ICCs/IPs under the same contract."
Section 57 speaks of the "harvesting, extraction, development or exploitation of natural resources within ancestral
domains" and "gives the ICCs/IPs 'priority rights' therein." The terms "harvesting, extraction, development or
exploitation" of any natural resources within the ancestral domains obviously refer to large-scale utilization. It is
utilization not merely for subsistence but for commercial or other extensive use that require technology other than manual
labor.236 The law recognizes the probability of requiring a non-member of the ICCs/IPs to participate in the development
and utilization of the natural resources and thereby allows such participation for a period of not more than 25 years,
renewable for another 25 years. This may be done on condition that a formal written agreement be entered into by the
non-member and members of the ICCs/IPs.
Section 57 of the IPRA does not give the ICCs/IPs the right to "manage and conserve" the natural resources. Instead, the
law only grants the ICCs/IPs "priority rights" in the development or exploitation thereof. Priority means giving preference.
Having priority rights over the natural resources does not necessarily mean ownership rights. The grant of priority rights
implies that there is a superior entity that owns these resources and this entity has the power to grant preferential rights
over the resources to whosoever itself chooses.
Section 57 is not a repudiation of the Regalian doctrine. Rather, it is an affirmation of the said doctrine that all natural
resources found within the ancestral domains belong to the State. It incorporates by implication the Regalian doctrine,
hence, requires that the provision be read in the light of Section 2, Article XII of the 1987 Constitution. Interpreting
Section 2, Article XII of the 1987 Constitution 237 in relation to Section 57 of IPRA, the State, as owner of these
natural resources, may directly undertake the development and exploitation of the natural resources by itself, or
in the alternative, it may recognize the priority rights of the ICCs/IPs as owners of the land on which the natural
resources are found by entering into a co-production, joint venture, or production-sharing agreement with them.
The State may likewise enter into any of said agreements with a non-member of the ICCs/IPs, whether natural or
juridical, or enter into agreements with foreign-owned corporations involving either technical or financial
assistance for the large-scale exploration, development and utilization of minerals, petroleum, and other mineral
oils, or allow such non-member to participate in its agreement with the ICCs/IPs. If the State decides to enter into an
agreement with a non-ICC/IP member, the National Commission on Indigenous Peoples (NCIP) shall ensure that the
rights of the ICCs/IPs under the agreement shall be protected. The agreement shall be for a period of 25 years, renewable
for another 25 years.
To reiterate, in the large-scale utilization of natural resources within the ancestral domains, the State, as owner of these
resources, has four (4) options: (1) it may, of and by itself, directly undertake the development and exploitation of the
natural resources; or (2) it may recognize the priority rights of the ICCs/IPs by entering into an agreement with them for
such development and exploitation; or (3) it may enter into an agreement with a non-member of the ICCs/IPs, whether
natural or juridical, local or foreign; or (4) it may allow such non-member to participate in the agreement with the ICCs/IPs.
The rights granted by the IPRA to the ICCs/IPs over the natural resources in their ancestral domains merely gives
the ICCs/IPs, as owners and occupants of the land on which the resources are found, the right to the small-scale
utilization of these resources, and at the same time, a priority in their large-scale development and
exploitation. Section 57 does not mandate the State to automatically give priority to the ICCs/IPs. The State has
several options and it is within its discretion to choose which option to pursue. Moreover, there is nothing in the
law that gives the ICCs/IPs the right to solely undertake the large-scale development of the natural resources within their
domains. The ICCs/IPs must undertake such endeavour always under State supervision or control. This indicates that the
State does not lose control and ownership over the resources even in their exploitation. Sections 7 (b) and 57 of the law
simply give due respect to the ICCs/IPs who, as actual occupants of the land where the natural resources lie, have
traditionally utilized these resources for their subsistence and survival.
Neither is the State stripped of ownership and control of the natural resources by the following provision:
"Section 59. Certification Precondition.- All departments and other governmental agencies shall henceforth be strictly
enjoined from issuing, renewing or granting any concession, license or lease, or entering into any production-sharing
agreement. without prior certification from the NCIP that the area affected does not overlap with any ancestral domain.
Such certification shall only be issued after a field-based investigation is conducted by the Ancestral Domains Office of the
area concerned: Provided, That no certification shall be issued by the NCIP without the free and prior informed and written
consent of the ICCs/IPs concerned: Provided, further, That no department, government agency or government-owned or -
controlled corporation may issue new concession, license, lease, or production sharing agreement while there is a
pending application for a CADT: Provided, finally, That the ICCs/IPs shall have the right to stop or suspend, in accordance
with this Act, any project that has not satisfied the requirement of this consultation process."
Concessions, licenses, lease or production-sharing agreements for the exploitation of natural resources shall not be
issued, renewed or granted by all departments and government agencies without prior certification from the NCIP that the
area subject of the agreement does not overlap with any ancestral domain. The NCIP certification shall be issued only
after a field-based investigation shall have been conducted and the free and prior informed written consent of the
ICCs/IPs obtained. Non-compliance with the consultation requirement gives the ICCs/IPs the right to stop or suspend any
project granted by any department or government agency.
As its subtitle suggests, this provision requires as a precondition for the issuance of any concession, license or agreement
over natural resources, that a certification be issued by the NCIP that the area subject of the agreement does not lie within
any ancestral domain. The provision does not vest the NCIP with power over the other agencies of the State as to
determine whether to grant or deny any concession or license or agreement. It merely gives the NCIP the authority to
ensure that the ICCs/IPs have been informed of the agreement and that their consent thereto has been obtained. Note
that the certification applies to agreements over natural resources that do not necessarily lie within the ancestral domains.
For those that are found within the said domains, Sections 7(b) and 57 of the IPRA apply.
V. THE IPRA IS A RECOGNITION OF OUR ACTIVE PARTICIPATION IN THE INDIGENOUS INTERNATIONAL

MOVEMENT.
The indigenous movement can be seen as the heir to a history of anti-imperialism stretching back to prehistoric times. The
movement received a massive impetus during the 1960's from two sources. First, the decolonization of Asia and Africa
brought into the limelight the possibility of peoples controlling their own destinies. Second, the right of self-determination
was enshrined in the UN Declaration on Human Rights.238 The rise of the civil rights movement and anti-racism brought to
the attention of North American Indians, Aborigines in Australia, and Maori in New Zealand the possibility of fighting for
fundamental rights and freedoms.
In 1974 and 1975, international indigenous organizations were founded, 239 and during the 1980's, indigenous affairs were
on the international agenda. The people of the Philippine Cordillera were the first Asians to take part in the international
indigenous movement. It was the Cordillera People's Alliance that carried out successful campaigns against the building
of the Chico River Dam in 1981-82 and they have since become one of the best-organized indigenous bodies in the
world.240
Presently, there is a growing concern for indigenous rights in the international scene. This came as a result of the
increased publicity focused on the continuing disrespect for indigenous human rights and the destruction of the
indigenous peoples' environment, together with the national governments' inability to deal with the situation. 241 Indigenous
rights came as a result of both human rights and environmental protection, and have become a part of today's priorities for
the international agenda.242
International institutions and bodies have realized the necessity of applying policies, programs and specific rules
concerning IPs in some nations. The World Bank, for example, first adopted a policy on IPs as a result of the dismal
experience of projects in Latin America.243 The World Bank now seeks to apply its current policy on IPs to some of its
projects in Asia. This policy has provided an influential model for the projects of the Asian Development Bank. 244
The 1987 Philippine Constitution formally recognizes the existence of ICCs/IPs and declares as a State policy the
promotion of their rights within the framework of national unity and development. 245 The IPRA amalgamates the Philippine
category of ICCs with the international category of IPs,246 and is heavily influenced by both the International Labor
Organization (ILO) Convention 169 and the United Nations (UN) Draft Declaration on the Rights of Indigenous Peoples. 247
ILO Convention No. 169 is entitled the "Convention Concerning Indigenous and Tribal Peoples in Independent
Countries"248 and was adopted on June 27, 1989. It is based on the Universal Declaration of Human Rights, the
International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights,
and many other international instruments on the prevention of discrimination. 249 ILO Convention No. 169 revised the
"Convention Concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in
Independent Countries" (ILO No. 107) passed on June 26, 1957. Developments in international law made it appropriate to
adopt new international standards on indigenous peoples "with a view to removing the assimilationist orientation of the
earlier standards," and recognizing the aspirations of these peoples to exercise control over their own institutions, ways of
life and economic development."250
CONCLUSION
The struggle of the Filipinos throughout colonial history had been plagued by ethnic and religious differences. These
differences were carried over and magnified by the Philippine government through the imposition of a national legal order
that is mostly foreign in origin or derivation.251 Largely unpopulist, the present legal system has resulted in the alienation
of a large sector of society, specifically, the indigenous peoples. The histories and cultures of the indigenes are relevant to
the evolution of Philippine culture and are vital to the understanding of contemporary problems. 252 It is through the IPRA
that an attempt was made by our legislators to understand Filipino society not in terms of myths and biases but through
common experiences in the course of history. The Philippines became a democracy a centennial ago and the
decolonization process still continues. If the evolution of the Filipino people into a democratic society is to truly proceed
democratically, i.e., if the Filipinos as a whole are to participate fully in the task of continuing democratization, 253 it is this
Court's duty to acknowledge the presence of indigenous and customary laws in the country and affirm their co-existence
with the land laws in our national legal system.
With the foregoing disquisitions, I vote to uphold the constitutionality of the Indigenous Peoples Rights Act of 1997.

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Republic of the Philippines

A.M. No. 10-7-17-SC October 15, 2010

The Background Facts

This case presents two issues:

The Court’s Rulings

The Passages from Tams

The Passages from Ellis

The inalienable character of juridical personality.23

WHEREFORE, in view of all of the above, the Court:

ANTONIO T. CARPIO CONCHITA CARPIO MORALES

PRESBITERO J. VELASCO, JR. ANTONIO EDUARDO B. NACHURA

TERESITA J. LEONARDO-DE CASTRO ARTURO D. BRION

DIOSDADO M. PERALTA LUCAS P. BERSAMIN

MARIANO C. DEL CASTILLO ROBERTO A. ABAD

MARTIN S. VILLARAMA, JR. JOSE PORTUGAL PEREZ

JOSE CATRAL MENDOZA MARIA LOURDES P. A. SERENO

3 Supplemental Motion for Reconsideration, supra note 1, at 5.

4 Justice Del Castillo’s Verified Letter, p. 3, Exhibit G of the petitioners.

6 Transcript of Stenographic Notes taken on August 26, 2010, p. 31.

7 G.R. No. 134625, August 31, 1999, 313 SCRA 404.

9 Exhibit I for the petitioners.

11 34 Yale J. Int’l. L. 331 (2009).

12 Memorandum for Justice Del Castillo, paragraphs 25-35.

13 Petitioner’s Memorandum, pp. 26-27.

14 Supra note 6, at 41.

16 Black's Law Dictionary (8th ed. 2004).

17 Stopping by the Woods on a Snowy Evening (1923).

19 Webster’s New World College Dictionary, 3rd Edition, p. 1445.

23 Supra note 13, at 25.

24 Supra note 6, at 27-30.

25 Order dated August 26, 2010, Committee Records, pp. 382-383.

The Lawphil Project - Arellano Law Foundation

*The decision mentioned Christian Tams’s

(p. 334 of the Yale Law Journal of Int’l Law)

(pp. 334-5 of the Yale Law Journal of Int’l

(p. 336 of the Yale Law Journal of Int’l Law)

(p. 337-8 of the Yale Law Journal of Int’l Law)

(p. 27, Footnote 65 of the 28 April 2010

[FN10]"Family honour and rights, the lives of

(p. 227 of the Case Western Law Reserve

(p. 227 of the Case Western Law Reserve

[FN17] See McDonald, supra note 13, at 676.

(p. 228 of the Case Western Law Reserve

(pp. 228-9 of the Case Western Law Reserve

(p. 229 of the Case Western Law Reserve

Violations of Rules against

The Place of the Plagiarized

Portions in the Vinuya Decision

How the Majority Decision

The majority Decision narrates and explains:

xxx xxx xxx

Plagiarism and Judicial Plagiarism

George describes the following among the types of judicial plagiarism:

Penalties for Plagiarism and

On Guilt and Hypocrisy

The Unfortunate Result of

The Way Forward

Response to the Decretal