EN BANC

PROF. MERLIN M. MAGALLONA, G.R No. 187167

AKBAYAN PARTY-LIST REP. RISA
HONTIVEROS, PROF. HARRY C. Present:
ROQUE, JR., AND UNIVERSITY OF
THE PHILIPPINES COLLEGE OF CORONA, C.J.,
LAW STUDENTS, ALITHEA CARPIO,
BARBARA ACAS, VOLTAIRE VELASCO, JR.,
ALFERES, CZARINA MAY LEONARDO-DE CASTRO,
ALTEZ, FRANCIS ALVIN ASILO, BRION,
SHERYL BALOT, RUBY AMOR PERALTA,
BARRACA, JOSE JAVIER BAUTISTA, BERSAMIN,
ROMINA BERNARDO, VALERIE DEL CASTILLO,
PAGASA BUENAVENTURA, EDAN ABAD,
MARRI CAETE, VANN ALLEN VILLARAMA, JR.,
DELA CRUZ, RENE DELORINO, PEREZ,
PAULYN MAY DUMAN, SHARON MENDOZA, and
ESCOTO, RODRIGO FAJARDO III, SERENO, JJ.
GIRLIE FERRER, RAOULLE OSEN
FERRER, CARLA REGINA GREPO,
ANNA MARIE CECILIA GO, IRISH
KAY KALAW, MARY ANN JOY LEE,
MARIA LUISA MANALAYSAY,
MIGUEL RAFAEL MUSNGI,
MICHAEL OCAMPO, JAKLYN HANNA
PINEDA, WILLIAM RAGAMAT,
MARICAR RAMOS, ENRIK FORT
REVILLAS, JAMES MARK TERRY
RIDON, JOHANN FRANTZ RIVERA IV,
CHRISTIAN RIVERO, DIANNE MARIE
ROA, NICHOLAS SANTIZO, MELISSA

CHRISTINA SANTOS, CRISTINE MAE

TABING, VANESSA ANNE TORNO,
MARIA ESTER VANGUARDIA, and
MARCELINO VELOSO III,
Petitioners,

- versus HON. EDUARDO ERMITA, IN HIS

CAPACITY AS EXECUTIVE
SECRETARY, HON. ALBERTO
ROMULO, IN HIS CAPACITY AS
SECRETARY OF THE DEPARTMENT
OF FOREIGN AFFAIRS, HON.
ROLANDO ANDAYA, IN HIS CAPACITY
AS SECRETARY OF THE DEPARTMENT
OF BUDGET AND MANAGEMENT,
HON. DIONY VENTURA, IN HIS
CAPACITY AS ADMINISTRATOR OF
THE NATIONAL MAPPING &
RESOURCE INFORMATION
AUTHORITY, and HON. HILARIO
DAVIDE, JR., IN HIS CAPACITY AS
REPRESENTATIVE OF THE
PERMANENT MISSION OF THE
REPUBLIC OF THE PHILIPPINES Promulgated:
TO THE UNITED NATIONS,
Respondents. July 16, 2011
x -----------------------------------------------------------------------------------------x
D E C I S I O NCARPIO, J.:
The Case
This original action for the writs of certiorari and prohibition assails the constitutionality of Republic Act No.
95221 (RA 9522) adjusting the countrys archipelagic baselines and classifying the baseline regime of
nearby territories.
The Antecedents

In 1961, Congress passed Republic Act No. 3046 (RA 3046) 2 demarcating the maritime baselines of the
Philippines as an archipelagic State.3 This law followed the framing of the Convention on the Territorial Sea
and the Contiguous Zone in 1958 (UNCLOS I),4 codifying, among others, the sovereign right of States
parties over their territorial sea, the breadth of which, however, was left undetermined. Attempts to fill this
void during the second round of negotiations in Geneva in 1960 (UNCLOS II) proved futile. Thus,
domestically, RA 3046 remained unchanged for nearly five decades, save for legislation passed in 1968
(Republic Act No. 5446 [RA 5446]) correcting typographical errors and reserving the drawing of baselines
around Sabah in North Borneo.
In March 2009, Congress amended RA 3046 by enacting RA 9522, the statute now under scrutiny. The
change was prompted by the need to make RA 3046 compliant with the terms of the United Nations
Convention on the Law of the Sea (UNCLOS III),5 which the Philippines ratified on 27 February
1984.6 Among others, UNCLOS III prescribes the water-land ratio, length, and contour of baselines of
archipelagic States like the Philippines7 and sets the deadline for the filing of application for the extended
continental shelf.8 Complying with these requirements, RA 9522 shortened one baseline, optimized the
location of some basepoints around the Philippine archipelago and classified adjacent territories, namely,
the Kalayaan Island Group (KIG) and the Scarborough Shoal, as regimes of islands whose islands generate
their own applicable maritime zones.
Petitioners, professors of law, law students and a legislator, in their respective capacities as citizens,
taxpayers or x x x legislators,9 as the case may be, assail the constitutionality of RA 9522 on two principal
grounds, namely: (1) RA 9522 reduces Philippine maritime territory, and logically, the reach of the
Philippine states sovereign power, in violation of Article 1 of the 1987 Constitution, 10embodying the terms
of the Treaty of Paris11 and ancillary treaties,12 and (2) RA 9522 opens the countrys waters landward of the
baselines to maritime passage by all vessels and aircrafts, undermining Philippine sovereignty and national
security, contravening the countrys nuclear-free policy, and damaging marine resources, in violation of
relevant constitutional provisions.13
In addition, petitioners contend that RA 9522s treatment of the KIG as regime of islands not only results in
the loss of a large maritime area but also prejudices the livelihood of subsistence fishermen. 14 To buttress
their argument of territorial diminution, petitioners facially attack RA 9522 for what it excluded and
included its failure to reference either the Treaty of Paris or Sabah and its use of UNCLOS IIIs framework of
regime of islands to determine the maritime zones of the KIG and the Scarborough Shoal.
Commenting on the petition, respondent officials raised threshold issues questioning (1) the petitions
compliance with the case or controversy requirement for judicial review grounded on petitioners alleged
lack of locus standi and (2) the propriety of the writs of certiorari and prohibition to assail the
constitutionality of RA 9522. On the merits, respondents defended RA 9522 as the countrys compliance
with the terms of UNCLOS III, preserving Philippine territory over the KIG or Scarborough Shoal.
Respondents add that RA 9522 does not undermine the countrys security, environment and economic
interests or relinquish the Philippines claim over Sabah.
Respondents also question the normative force, under international law, of petitioners assertion that what
Spain ceded to the United States under the Treaty of Paris were the islands and all the watersfound within
the boundaries of the rectangular area drawn under the Treaty of Paris.
We left unacted petitioners prayer for an injunctive writ.
The Issues
The petition raises the following issues:
1.

Preliminarily

1.

Whether petitioners possess locus standi to bring this suit; and

2.

2.

Whether the writs of certiorari and prohibition are the proper remedies to assail the
constitutionality of RA 9522.
On the merits, whether RA 9522 is unconstitutional.

The Ruling of the Court

On the threshold issues, we hold that (1) petitioners possess locus standi to bring this suit as citizens and
(2) the writs of certiorari and prohibition are proper remedies to test the constitutionality of RA 9522. On
the merits, we find no basis to declare RA 9522 unconstitutional.
On the Threshold Issues
Petitioners Possess Locus Standi as Citizens

Petitioners themselves undermine their assertion of locus standi as legislators and taxpayers because the
petition alleges neither infringement of legislative prerogative 15 nor misuse of public funds,16occasioned by
the passage and implementation of RA 9522. Nonetheless, we recognize petitioners locus standi as citizens
with constitutionally sufficient interest in the resolution of the merits of the case which undoubtedly raises
issues of national significance necessitating urgent resolution. Indeed, owing to the peculiar nature of RA
9522, it is understandably difficult to find other litigants possessing a more direct and specific interest to
bring the suit, thus satisfying one of the requirements for granting citizenship standing. 17
The Writs of Certiorari and Prohibition Are Proper Remedies to Test the Constitutionality of
Statutes
In praying for the dismissal of the petition on preliminary grounds, respondents seek a strict observance of
the offices of the writs of certiorari and prohibition, noting that the writs cannot issue absent any showing
of grave abuse of discretion in the exercise of judicial, quasi-judicial or ministerial powers on the part of
respondents and resulting prejudice on the part of petitioners. 18
submission holds true in ordinary civil proceedings. When this Court exercises its constitutional power of
judicial review, however, we have, by tradition, viewed the writs of certiorari and prohibition as proper
remedial vehicles to test the constitutionality of statutes,19 and indeed, of acts of other branches of
government.20 Issues of constitutional import are sometimes crafted out of statutes which, while having no
bearing on the personal interests of the petitioners, carry such relevance in the life of this nation that the
Court inevitably finds itself constrained to take cognizance of the case and pass upon the issues raised,
non-compliance with the letter of procedural rules notwithstanding. The statute sought to be reviewed
here is one such law.
RA 9522 is Not Unconstitutional
RA 9522 is a Statutory Tool to Demarcate the Countrys Maritime Zones and Continental Shelf
Under UNCLOS III, not to
Delineate Philippine Territory
Petitioners submit that RA 9522 dismembers a large portion of the national territory 21 because it discards
the pre-UNCLOS III demarcation of Philippine territory under the Treaty of Paris and related treaties,
successively encoded in the definition of national territory under the 1935, 1973 and 1987 Constitutions.
Petitioners theorize that this constitutional definition trumps any treaty or statutory provision denying the
Philippines sovereign control over waters, beyond the territorial sea recognized at the time of the Treaty of
Paris, that Spain supposedly ceded to the United States. Petitioners argue that from the Treaty of Paris
technical description, Philippine sovereignty over territorial waters extends hundreds of nautical miles
around the Philippine archipelago, embracing the rectangular area delineated in the Treaty of Paris. 22
Petitioners theory fails to persuade us.
UNCLOS III has nothing to do with the acquisition (or loss) of territory. It is a multilateral treaty regulating,
among others, sea-use rights over maritime zones (i.e., the territorial waters [12 nautical miles from the
baselines], contiguous zone [24 nautical miles from the baselines], exclusive economic zone [200 nautical
miles from the baselines]), and continental shelves that UNCLOS III delimits. 23UNCLOS III was the
culmination of decades-long negotiations among United Nations members to codify norms regulating the
conduct of States in the worlds oceans and submarine areas, recognizing coastal and archipelagic States
graduated authority over a limited span of waters and submarine lands along their coasts.
On the other hand, baselines laws such as RA 9522 are enacted by UNCLOS III States parties to
mark-out specific basepoints along their coasts from which baselines are drawn, either straight or
contoured, to serve as geographic starting points to measure the breadth of the maritime zones and
continental shelf. Article 48 of UNCLOS III on archipelagic States like ours could not be any clearer:
Article 48. Measurement of the breadth of the territorial sea, the contiguous zone,
the exclusive economic zone and the continental shelf. The breadth of the territorial sea, the
contiguous zone, the exclusive economic zone and the continental shelf shall be measured
from archipelagic baselines drawn in accordance with article 47. (Emphasis supplied)
Thus, baselines laws are nothing but statutory mechanisms for UNCLOS III States parties to delimit
with precision the extent of their maritime zones and continental shelves. In turn, this gives notice to the
rest of the international community of the scope of the maritime space and submarine areas within which
States parties exercise treaty-based rights, namely, the exercise of sovereignty over territorial waters
(Article 2), the jurisdiction to enforce customs, fiscal, immigration, and sanitation laws in the contiguous
zone (Article 33), and the right to exploit the living and non-living resources in the exclusive economic
zone (Article 56) and continental shelf (Article 77).
Even under petitioners theory that the Philippine territory embraces the islands and all the
waters within the rectangular area delimited in the Treaty of Paris, the baselines of the Philippines would

still have to be drawn in accordance with RA 9522 because this is the only way to draw the baselines in
conformity with UNCLOS III. The baselines cannot be drawn from the boundaries or other portions of the
rectangular area delineated in the Treaty of Paris, but from the outermost islands and drying reefs of the
archipelago.24
UNCLOS III and its ancillary baselines laws play no role in the acquisition, enlargement or, as
petitioners claim, diminution of territory. Under traditional international law typology, States acquire (or
conversely, lose) territory through occupation, accretion, cession and prescription, 25 not by executing
multilateral treaties on the regulations of sea-use rights or enacting statutes to comply with the treatys
terms to delimit maritime zones and continental shelves. Territorial claims to land features are outside
UNCLOS III, and are instead governed by the rules on general international law. 26
RA 9522s Use of the Framework of Regime of Islands to Determine the Maritime Zones of the
KIG and the Scarborough Shoal, not Inconsistent with the Philippines Claim of Sovereignty
Over these Areas
Petitioners next submit that RA 9522s use of UNCLOS IIIs regime of islands framework to draw the
baselines, and to measure the breadth of the applicable maritime zones of the KIG, weakens our territorial
claim over that area.27 Petitioners add that the KIGs (and Scarborough Shoals) exclusion from the Philippine
archipelagic baselines results in the loss of about 15,000 square nautical miles of territorial waters,
prejudicing the livelihood of subsistence fishermen.28 A comparison of the configuration of the baselines
drawn under RA 3046 and RA 9522 and the extent of maritime space encompassed by each law, coupled
with a reading of the text of RA 9522 and its congressional deliberations, vis--vis the Philippines obligations
under UNCLOS III, belie this view.
The configuration of the baselines drawn under RA 3046 and RA 9522 shows that RA 9522 merely followed
the basepoints mapped by RA 3046, save for at least nine basepoints that RA 9522 skipped to optimize the
location of basepoints and adjust the length of one baseline (and thus comply with UNCLOS IIIs limitation
on the maximum length of baselines). Under RA 3046, as under RA 9522, the KIG and the Scarborough
Shoal lie outside of the baselines drawn around the Philippine archipelago. This undeniable cartographic
fact takes the wind out of petitioners argument branding RA 9522 as a statutory renunciation of the
Philippines claim over the KIG, assuming that baselines are relevant for this purpose.
Petitioners assertion of loss of about 15,000 square nautical miles of territorial waters under RA 9522 is
similarly unfounded both in fact and law. On the contrary, RA 9522, by optimizing the location of
basepoints, increased the Philippines total maritime space (covering its internal waters, territorial sea and
exclusive economic zone) by 145,216 square nautical miles, as shown in the table below: 29

Internal or
archipelagi
c waters

Territorial
Sea

Exclusive
Economic
Zone

Extent of maritime area

using RA 3046, as
amended, taking into
account the Treaty of Paris
delimitation (in square
nautical miles)

Extent of maritime
area using RA 9522,
taking into account
UNCLOS III (in
square nautical
miles)

166,858

171,435

274,136

32,106

382,669

TOTAL

440,994

586,210

Thus, as the map below shows, the reach of the exclusive economic zone drawn under RA 9522 even
extends way beyond the waters covered by the rectangular demarcation under the Treaty of Paris. Of
course, where there are overlapping exclusive economic zones of opposite or adjacent States, there will
have to be a delineation of maritime boundaries in accordance with UNCLOS III. 30
Further, petitioners argument that the KIG now lies outside Philippine territory because the baselines that
RA 9522 draws do not enclose the KIG is negated by RA 9522 itself. Section 2 of the law commits to text
the Philippines continued claim of sovereignty and jurisdiction over the KIG and the Scarborough Shoal:
SEC. 2. The baselines in the following areas over which the Philippines likewise
exercises sovereignty and jurisdiction shall be determined as Regime of Islands under
the Republic of the Philippines consistent with Article 121 of the United Nations Convention
on the Law of the Sea (UNCLOS):
a) The Kalayaan Island Group as constituted under Presidential Decree No. 1596 and
b) Bajo de Masinloc, also known as Scarborough Shoal. (Emphasis supplied)
Had Congress in RA 9522 enclosed the KIG and the Scarborough Shoal as part of the Philippine
archipelago, adverse legal effects would have ensued. The Philippines would have committed a breach of
two provisions of UNCLOS III. First, Article 47 (3) of UNCLOS III requires that [t]he drawing of such baselines
shall not depart to any appreciable extent from the general configuration of the archipelago. Second,
Article 47 (2) of UNCLOS III requires that the length of the baselines shall not exceed 100 nautical miles,
save for three per cent (3%) of the total number of baselines which can reach up to 125 nautical miles. 31
Although the Philippines has consistently claimed sovereignty over the KIG 32 and the Scarborough
Shoal for several decades, these outlying areas are located at an appreciable distance from the nearest
shoreline of the Philippine archipelago, 33 such that any straight baseline loped around them from the
nearest basepoint will inevitably depart to an appreciable extent from the general configuration of the
archipelago.
The principal sponsor of RA 9522 in the Senate, Senator Miriam Defensor-Santiago, took pains to
emphasize the foregoing during the Senate deliberations:
What we call the Kalayaan Island Group or what the rest of the world call[] the
Spratlys and the Scarborough Shoal are outside our archipelagic baseline because if we put
them inside our baselines we might be accused of violating the provision of international
law which states: The drawing of such baseline shall not depart to any appreciable extent
from the general configuration of the archipelago. So sa loob ng ating baseline, dapat
magkalapit ang mga islands. Dahil malayo ang Scarborough Shoal, hindi natin masasabing
malapit sila sa atin although we are still allowed by international law to claim them as our
own.
This is called contested islands outside our configuration. We see that our archipelago is
defined by the orange line which [we] call[] archipelagic baseline. Ngayon, tingnan ninyo
ang maliit na circle doon sa itaas, that is Scarborough Shoal, itong malaking circle sa ibaba,
that is Kalayaan Group or the Spratlys. Malayo na sila sa ating archipelago kaya kung ilihis
pa natin ang dating archipelagic baselines para lamang masama itong dalawang circles,
hindi na sila magkalapit at baka hindi na tatanggapin ng United Nations because of the rule
that it should follow the natural configuration of the archipelago.34 (Emphasis supplied)
Similarly, the length of one baseline that RA 3046 drew exceeded UNCLOS IIIs limits. The need to
shorten this baseline, and in addition, to optimize the location of basepoints using current maps, became
imperative as discussed by respondents:
[T]he amendment of the baselines law was necessary to enable the Philippines to
draw the outer limits of its maritime zones including the extended continental shelf in the
manner provided by Article 47 of [UNCLOS III]. As defined by R.A. 3046, as amended by R.A.
5446, the baselines suffer from some technical deficiencies, to wit:
1.

The length of the baseline across Moro Gulf (from Middle of 3 Rock Awash to Tongquil Point)
is 140.06 nautical miles x x x. This exceeds the maximum length allowed under Article 47(2)
of the [UNCLOS III], which states that The length of such baselines shall not exceed 100
nautical miles, except that up to 3 per cent of the total number of baselines enclosing any
archipelago may exceed that length, up to a maximum length of 125 nautical miles.

2.

The selection of basepoints is not optimal. At least 9 basepoints can be skipped or deleted
from the baselines system. This will enclose an additional 2,195 nautical miles of water.

3.

Finally, the basepoints were drawn from maps existing in 1968, and not established by
geodetic survey methods. Accordingly, some of the points, particularly along the west coasts
of Luzon down to Palawan were later found to be located either inland or on water, not on
low-water line and drying reefs as prescribed by Article 47. 35

Hence, far from surrendering the Philippines claim over the KIG and the Scarborough Shoal,
Congress decision to classify the KIG and the Scarborough Shoal as Regime[s] of Islands under the
Republic of the Philippines consistent with Article 121 36 of UNCLOS III manifests the Philippine States
responsible observance of its pacta sunt servanda obligation under UNCLOS III. Under Article 121 of
UNCLOS III, any naturally formed area of land, surrounded by water, which is above water at high tide,
such as portions of the KIG, qualifies under the category of regime of islands, whose islands generate their
own applicable maritime zones.37
Statutory Claim Over Sabah under RA 5446 Retained
Petitioners argument for the invalidity of RA 9522 for its failure to textualize the Philippines claim over
Sabah in North Borneo is also untenable. Section 2 of RA 5446, which RA 9522 did not repeal, keeps open
the door for drawing the baselines of Sabah:
Section 2. The definition of the baselines of the territorial sea of the Philippine
Archipelago as provided in this Act is without prejudice to the delineation of the
baselines of the territorial sea around the territory of Sabah, situated in North
Borneo, over which the Republic of the Philippines has acquired dominion and
sovereignty. (Emphasis supplied)
UNCLOS III and RA 9522 not Incompatible with the Constitutions Delineation of Internal Waters
As their final argument against the validity of RA 9522, petitioners contend that the law unconstitutionally
converts internal waters into archipelagic waters, hence subjecting these waters to the right of innocent
and sea lanes passage under UNCLOS III, including overflight. Petitioners extrapolate that these passage
rights indubitably expose Philippine internal waters to nuclear and maritime pollution hazards, in violation
of the Constitution.38
Whether referred to as Philippine internal waters under Article I of the Constitution 39 or as archipelagic
waters under UNCLOS III (Article 49 [1]), the Philippines exercises sovereignty over the body of water lying
landward of the baselines, including the air space over it and the submarine areas underneath. UNCLOS III
affirms this:
Article 49. Legal status of archipelagic waters, of the air space over archipelagic
waters and of their bed and subsoil.
1.

The sovereignty of an archipelagic State extends to the waters

enclosed by the archipelagic baselines drawn in accordance with article
47, described as archipelagic waters, regardless of their depth or distance
from the coast.

2.

This sovereignty extends to the air space over the archipelagic

waters, as well as to their bed and subsoil, and the resources
contained therein.

xxxx
4. The regime of archipelagic sea lanes passage established in this Part shall not in
other respects affect the status of the archipelagic waters, including the sea
lanes, or the exercise by the archipelagic State of its sovereignty over such waters
and their air space, bed and subsoil, and the resources contained therein.
(Emphasis supplied)
The fact of sovereignty, however, does not preclude the operation of municipal and international law
norms subjecting the territorial sea or archipelagic waters to necessary, if not marginal, burdens in the
interest of maintaining unimpeded, expeditious international navigation, consistent with the international
law principle of freedom of navigation. Thus, domestically, the political branches of the Philippine
government, in the competent discharge of their constitutional powers, may pass legislation designating
routes within the archipelagic waters to regulate innocent and sea lanes passage. 40 Indeed, bills drawing
nautical highways for sea lanes passage are now pending in Congress. 41
In the absence of municipal legislation, international law norms, now codified in UNCLOS III, operate to
grant innocent passage rights over the territorial sea or archipelagic waters, subject to the treatys

limitations and conditions for their exercise.42 Significantly, the right of innocent passage is a customary
international law,43 thus automatically incorporated in the corpus of Philippine law. 44 No modern State can
validly invoke its sovereignty to absolutely forbid innocent passage that is exercised in accordance with
customary international law without risking retaliatory measures from the international community.
The fact that for archipelagic States, their archipelagic waters are subject to both the right of
innocent passage and sea lanes passage45 does not place them in lesser footing vis--vis continental coastal
States which are subject, in their territorial sea, to the right of innocent passage and the right of transit
passage through international straits. The imposition of these passage rights through archipelagic waters
under UNCLOS III was a concession by archipelagic States, in exchange for their right to claim all the
waters landward of their baselines, regardless of their depth or distance from the coast, as archipelagic
waters subject to their territorial sovereignty. More importantly, the recognition of archipelagic States
archipelago and the waters enclosed by their baselines as one cohesive entity prevents the treatment of
their islands as separate islands under UNCLOS III.46 Separate islands generate their own maritime zones,
placing the waters between islands separated by more than 24 nautical miles beyond the States territorial
sovereignty, subjecting these waters to the rights of other States under UNCLOS III. 47
Petitioners invocation of non-executory constitutional provisions in Article II (Declaration of
Principles and State Policies)48 must also fail. Our present state of jurisprudence considers the provisions in
Article II as mere legislative guides, which, absent enabling legislation, do not embody judicially
enforceable constitutional rights x x x.49 Article II provisions serve as guides in formulating and interpreting
implementing legislation, as well as in interpreting executory provisions of the Constitution.
Although Oposa v. Factoran50 treated the right to a healthful and balanced ecology under Section 16 of
Article II as an exception, the present petition lacks factual basis to substantiate the claimed constitutional
violation. The other provisions petitioners cite, relating to the protection of marine wealth (Article XII,
Section 2, paragraph 251) and subsistence fishermen (Article XIII, Section 752), are not violated by RA 9522.
In fact, the demarcation of the baselines enables the Philippines to delimit its exclusive economic
zone, reserving solely to the Philippines the exploitation of all living and non-living resources within such
zone. Such a maritime delineation binds the international community since the delineation is in strict
observance of UNCLOS III. If the maritime delineation is contrary to UNCLOS III, the international
community will of course reject it and will refuse to be bound by it.
UNCLOS III favors States with a long coastline like the Philippines. UNCLOS III creates a sui
generis maritime space the exclusive economic zone in waters previously part of the high seas. UNCLOS III
grants new rights to coastal States to exclusively exploit the resources found within this zone up to 200
nautical miles.53 UNCLOS III, however, preserves the traditional freedom of navigation of other States that
attached to this zone beyond the territorial sea before UNCLOS III.
RA 9522 and the Philippines Maritime Zones
Petitioners hold the view that, based on the permissive text of UNCLOS III, Congress was not bound
to pass RA 9522.54 We have looked at the relevant provision of UNCLOS III55 and we find petitioners reading
plausible. Nevertheless, the prerogative of choosing this option belongs to Congress, not to this Court.
Moreover, the luxury of choosing this option comes at a very steep price. Absent an UNCLOS III compliant
baselines law, an archipelagic State like the Philippines will find itself devoid of internationally acceptable
baselines from where the breadth of its maritime zones and continental shelf is measured. This is recipe for
a two-fronted disaster: first, it sends an open invitation to the seafaring powers to freely enter and exploit
the resources in the waters and submarine areas around our archipelago; and second, it weakens the
countrys case in any international dispute over Philippine maritime space. These are consequences
Congress wisely avoided.
The enactment of UNCLOS III compliant baselines law for the Philippine archipelago and adjacent
areas, as embodied in RA 9522, allows an internationally-recognized delimitation of the breadth of the
Philippines maritime zones and continental shelf. RA 9522 is therefore a most vital step on the part of the
Philippines in safeguarding its maritime zones, consistent with the Constitution and our national interest.
WHEREFORE, we DISMISS the petition.

EN BANC

THE PROVINCE OF NORTH COTABATO,

duly represented by GOVERNOR JESUS
SACDALAN and/or VICE-GOVERNOR
EMMANUEL PIOL, for and in his own
behalf,
Petitioners,

G.R. No. 183591

Present:

PUNO, C.J.,
QUISUMBING,

- versus -

YNARES-SANTIAGO,
CARPIO,
AUSTRIA-MARTINEZ,

THE GOVERNMENT OF THE REPUBLIC

OF THE PHILIPPINES PEACE PANEL ON
ANCESTRAL
DOMAIN
(GRP),
represented
by
SEC.
RODOLFO
GARCIA, ATTY. LEAH ARMAMENTO,
ATTY. SEDFREY CANDELARIA, MARK
RYAN
SULLIVAN
and/or
GEN.
HERMOGENES ESPERON, JR., the latter
in his capacity as the present and
duly-appointed Presidential Adviser
on the Peace Process (OPAPP) or the
so-called Office of the Presidential
Adviser on the Peace Process,
Respondents.
x--------------------------------------------x
CITY GOVERNMENT OF ZAMBOANGA,
as represented by HON. CELSO L.
LOBREGAT, City Mayor of Zamboanga,
and in his personal capacity as
resident of the City of Zamboanga,
Rep. MA. ISABELLE G. CLIMACO,
District 1, and Rep. ERICO BASILIO A.
FABIAN, District 2, City ofZamboanga,
Petitioners,

CORONA,
CARPIO MORALES,
AZCUNA,
TINGA,
CHICO-NAZARIO,
VELASCO, JR.,
NACHURA,
REYES,
LEONARDO-DE CASTRO, &
BRION, JJ.
Promulgated:

October 14, 2008

- versus -

THE GOVERNMENT OF THE REPUBLIC

OF
THE
PHILIPPINES
PEACE
NEGOTIATING
PANEL
(GRP),
as
represented by RODOLFO C. GARCIA,
LEAH
ARMAMENTO,
SEDFREY
CANDELARIA, MARK RYAN SULLIVAN
and HERMOGENES ESPERON, in his
capacity as the Presidential Adviser
on Peace Process,

G.R. No. 183752

Respondents.
x--------------------------------------------x
THE CITY OF ILIGAN, duly represented
by CITY MAYOR LAWRENCE LLUCH
CRUZ,
Petitioner,

- versus

THE GOVERNMENT OF THE REPUBLIC

OF THE PHILIPPINES PEACE PANEL ON
ANCESTRAL
DOMAIN
(GRP),
represented
by
SEC.
RODOLFO
GARCIA, ATTY. LEAH ARMAMENTO,
ATTY. SEDFREY CANDELARIA, MARK
RYAN SULLIVAN; GEN. HERMOGENES
ESPERON, JR., in his capacity as the
present
and
duly
appointed
Presidential Adviser on the Peace
Process;
and/or
SEC.
EDUARDO
ERMITA, in his capacity as Executive
Secretary.
Respondents.
x--------------------------------------------x
THE PROVINCIAL GOVERNMENT OF
ZAMBOANGA
DEL
NORTE,
as
represented by HON. ROLANDO E.
YEBES, in his capacity as Provincial
Governor, HON. FRANCIS H. OLVIS, in
his capacity as Vice-Governor and
Presiding Officer of the Sangguniang
Panlalawigan, HON. CECILIA JALOSJOS
CARREON,
Congresswoman,
1st Congressional District, HON. CESAR
G.
JALOSJOS,
Congressman,
3rdCongressional
District,
and
Members
of
the
Sangguniang
Panlalawigan of the Province of
Zamboanga
del
Norte,
namely,
HON. SETH FREDERICK P. JALOSJOS,
HON. FERNANDO R. CABIGON, JR.,
HON. ULDARICO M. MEJORADA II, HON.
EDIONAR M. ZAMORAS, HON. EDGAR J.
BAGUIO, HON. CEDRIC L. ADRIATICO,
HON.FELIXBERTO C. BOLANDO, HON.
JOSEPH BRENDO C. AJERO, HON.
NORBIDEIRI B. EDDING, HON. ANECITO
S. DARUNDAY, HON. ANGELICA J.
CARREON and HON. LUZVIMINDA E.
TORRINO,
Petitioners,

G.R. No. 183893

- versus -

THE GOVERNMENT OF THE REPUBLIC

OF
THE
PHILIPPINES
PEACE
NEGOTIATING
PANEL
[GRP],
as
represented by HON. RODOLFO C.
GARCIA
and
HON.
HERMOGENES
ESPERON, in his capacity as the
Presidential Adviser of Peace Process,
Respondents.
x--------------------------------------------x
ERNESTO M. MACEDA, JEJOMAR C.
BINAY, and AQUILINO L. PIMENTEL III,
Petitioners,

- versus -

THE GOVERNMENT OF THE REPUBLIC

OF
THE
PHILIPPINES
PEACE
NEGOTIATING PANEL, represented by
its Chairman RODOLFO C. GARCIA, and
the MORO ISLAMIC LIBERATION FRONT
PEACE
NEGOTIATING
PANEL,
represented
by
its
Chairman
MOHAGHER IQBAL,
Respondents.
x--------------------------------------------x
FRANKLIN M. DRILON and ADEL ABBAS
TAMANO,
Petitioners-in-Intervention.
x--------------------------------------------x
SEN. MANUEL A. ROXAS,
Petitioners-in-Intervention.
x--------------------------------------------x
MUNICIPALITY
OF
LINAMON
duly
represented by its Municipal Mayor
NOEL N. DEANO,
Petitioners-in-Intervention,
x--------------------------------------------x

G.R. No. 183951

THE CITY OF ISABELA, BASILANPROVI

NCE,
represented
by
MAYOR
CHERRYLYN P. SANTOS-AKBAR,
Petitioners-in-Intervention.
x--------------------------------------------x
THE PROVINCE OF SULTAN KUDARAT,
rep.
by
HON.
SUHARTO
T.
MANGUDADATU, in his capacity as
Provincial Governor and a resident of
the Province of Sultan Kudarat,
Petitioner-in-Intervention.
x-------------------------------------------x

RUY ELIAS LOPEZ, for and in his own

behalf and on behalf of Indigenous
Peoples in Mindanao Not Belonging to
the MILF,
Petitioner-in-Intervention.
x--------------------------------------------x
CARLO B. GOMEZ, GERARDO S. DILIG,
NESARIO
G. AWAT,
JOSELITO
C.
ALISUAG and RICHALEX G. JAGMIS, as
citizens and residents of Palawan,
Petitioners-in-Intervention.
x--------------------------------------------x
MARINO RIDAO and KISIN BUXANI,
Petitioners-in-Intervention.
x--------------------------------------------x
MUSLIM
LEGAL
ASSISTANCE
FOUNDATION, INC (MUSLAF),
Respondent-in-Intervention.
x--------------------------------------------x
MUSLIM MULTI-SECTORAL MOVEMENT
FOR
PEACE
&
DEVELOPMENT
(MMMPD),
Respondent-in-Intervention.
x--------------------------------------------x

G.R. No. 183962

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

CARPIO MORALES, J.:

Subject of these consolidated cases is the extent of the powers of the President in pursuing the peace
process. While the facts surrounding this controversy center on the armed conflict in Mindanaobetween the
government and the Moro Islamic Liberation Front (MILF), the legal issue involved has a bearing on all
areas in the country where there has been a long-standing armed conflict. Yet again, the Court is tasked to
perform a delicate balancing act. It must uncompromisingly delineate the bounds within which the
President may lawfully exercise her discretion, but it must do so in strict adherence to the Constitution, lest
its ruling unduly restricts the freedom of action vested by that same Constitution in the Chief Executive
precisely to enable her to pursue the peace process effectively.

I. FACTUAL ANTECEDENTS OF THE PETITIONS

On August 5, 2008, the Government of the Republic of the Philippines (GRP) and the MILF, through the
Chairpersons of their respective peace negotiating panels, were scheduled to sign a Memorandum of
Agreement on the Ancestral Domain (MOA-AD) Aspect of the GRP-MILF Tripoli Agreement on Peace of 2001
in Kuala Lumpur, Malaysia.

The MILF is a rebel group which was established in March 1984 when, under the leadership of the late
Salamat Hashim, it splintered from the Moro National Liberation Front (MNLF) then headed by Nur Misuari,
on the ground, among others, of what Salamat perceived to be the manipulation of the MNLF away from an
Islamic basis towards Marxist-Maoist orientations.[1]

The signing of the MOA-AD between the GRP and the MILF was not to materialize, however, for upon
motion of petitioners, specifically those who filed their cases before the scheduled signing of the MOA-AD,
this Court issued a Temporary Restraining Order enjoining the GRP from signing the same.

The MOA-AD was preceded by a long process of negotiation and the concluding of several prior
agreements between the two parties beginning in 1996, when the GRP-MILF peace negotiations
began. On July 18, 1997, the GRP and MILF Peace Panels signed the Agreement on General Cessation of
Hostilities. The following year, they signed the General Framework of Agreement of Intent on August 27,
1998.

The Solicitor General, who represents respondents, summarizes the MOA-AD by stating that the same
contained, among others, the commitment of the parties to pursue peace negotiations, protect and respect
human rights, negotiate with sincerity in the resolution and pacific settlement of the conflict, and refrain
from the use of threat or force to attain undue advantage while the peace negotiations on the substantive
agenda are on-going.[2]

Early on, however, it was evident that there was not going to be any smooth sailing in the GRP-MILF peace
process. Towards the end of 1999 up to early 2000, the MILF attacked a number of municipalities in Central
Mindanao and, in March 2000, it took control of the town hall of Kauswagan, Lanao del Norte.[3] In
response, then President Joseph Estrada declared and carried out an all-out-war against the MILF.

When President Gloria Macapagal-Arroyo assumed office, the military offensive against the MILF was
suspended and the government sought a resumption of the peace talks. The MILF, according to a leading
MILF member, initially responded with deep reservation, but when President Arroyo asked the Government
of Malaysia through Prime Minister Mahathir Mohammad to help convince the MILF to return to the
negotiating table, the MILF convened its Central Committee to seriously discuss the matter and,
eventually, decided to meet with the GRP.[4]

The parties met in Kuala Lumpur on March 24, 2001, with the talks being facilitated by the Malaysian
government, the parties signing on the same date the Agreement on the General Framework for the
Resumption of Peace Talks Between the GRP and the MILF. The MILF thereafter suspended all its military
actions.[5]

Formal peace talks between the parties were held in Tripoli, Libya from June 20-22, 2001, the outcome of
which was the GRP-MILF Tripoli Agreement on Peace (Tripoli Agreement 2001) containing the basic
principles
and
agenda
on
the
following
aspects
of
the
negotiation: Security Aspect, Rehabilitation Aspect, and Ancestral Domain Aspect. With regard to the
Ancestral Domain Aspect, the parties in Tripoli Agreement 2001 simply agreed that the same be discussed
further by the Parties in their next meeting.

A second round of peace talks was held in Cyberjaya, Malaysia on August 5-7, 2001 which ended with the
signing of the Implementing Guidelines on the Security Aspect of the Tripoli Agreement 2001 leading to a
ceasefire status between the parties. This was followed by the Implementing Guidelines on the
Humanitarian Rehabilitation and Development Aspects of the Tripoli Agreement 2001, which was signed
on May 7, 2002 at Putrajaya, Malaysia. Nonetheless, there were many incidence of violence between
government forces and the MILF from 2002 to 2003.

Meanwhile, then MILF Chairman Salamat Hashim passed away on July 13, 2003 and he was replaced by Al
Haj Murad, who was then the chief peace negotiator of the MILF. Murads position as chief peace negotiator
was taken over by Mohagher Iqbal.[6]

In 2005, several exploratory talks were held between the parties in Kuala Lumpur, eventually leading to
the crafting of the draft MOA-AD in its final form, which, as mentioned, was set to be signed last August 5,
2008.

II. STATEMENT OF THE PROCEEDINGS

Before the Court is what is perhaps the most contentious consensus ever embodied in an instrument the
MOA-AD which is assailed principally by the present petitions bearing docket numbers 183591, 183752,
183893, 183951 and 183962.

Commonly impleaded as respondents are the GRP Peace Panel on Ancestral Domain[7] and the Presidential
Adviser on the Peace Process (PAPP) Hermogenes Esperon, Jr.

On July 23, 2008, the Province of North Cotabato[8] and Vice-Governor Emmanuel Piol filed a
petition, docketed as G.R. No. 183591, for Mandamus and Prohibition with Prayer for the Issuance of Writ
of Preliminary Injunction and Temporary Restraining Order. [9] Invoking the right to information on matters of
public concern, petitioners seek to compel respondents to disclose and furnish them the complete and
official copies of the MOA-AD including its attachments, and to prohibit the slated signing of the MOA-AD,
pending the disclosure of the contents of the MOA-AD and the holding of a public consultation
thereon. Supplementarily, petitioners pray that the MOA-AD be declared unconstitutional. [10]

This initial petition was followed by another one, docketed as G.R. No. 183752, also for Mandamus and
Prohibition[11] filed by the City of Zamboanga,[12] Mayor Celso Lobregat, Rep. Ma. Isabelle Climaco and Rep.
Erico Basilio Fabian who likewise pray for similar injunctive reliefs. Petitioners herein moreover pray that
the City of Zamboanga be excluded from the Bangsamoro Homeland and/or Bangsamoro Juridical Entity
and, in the alternative, that the MOA-AD be declared null and void.

By Resolution of August 4, 2008, the Court issued a Temporary Restraining Order commanding and
directing public respondents and their agents to cease and desist from formally signing the MOA-AD. [13] The
Court also required the Solicitor General to submit to the Court and petitioners the official copy of the final
draft of the MOA-AD,[14] to which she complied.[15]

Meanwhile, the City of Iligan[16] filed a petition for Injunction and/or Declaratory Relief, docketed
as G.R. No. 183893, praying that respondents be enjoined from signing the MOA-AD or, if the same had
already been signed, from implementing the same, and that the MOA-AD be declared
unconstitutional. Petitioners herein additionally implead Executive Secretary Eduardo Ermita as
respondent.

The Province of Zamboanga del Norte,[17] Governor Rolando Yebes, Vice-Governor Francis Olvis, Rep.
Cecilia Jalosjos-Carreon, Rep. Cesar Jalosjos, and the members [18] of theSangguniang Panlalawigan of
Zamboanga del Norte filed on August 15, 2008 a petition for Certiorari, Mandamus and Prohibition,
[19]
docketed as G.R. No. 183951. They pray, inter alia, that the MOA-AD be declared null and void and
without operative effect, and that respondents be enjoined from executing the MOA-AD.

On August 19, 2008, Ernesto Maceda, Jejomar Binay, and Aquilino Pimentel III filed a petition for
Prohibition,[20] docketed as G.R. No. 183962, praying for a judgment prohibiting and permanently
enjoining respondents from formally signing and executing the MOA-AD and or any other agreement
derived therefrom or similar thereto, and nullifying the MOA-AD for being unconstitutional and
illegal. Petitioners herein additionally implead as respondent the MILF Peace Negotiating Panel represented
by its Chairman Mohagher Iqbal.
Various parties moved to intervene and were granted leave of court to file their
petitions-/comments-in-intervention. Petitioners-in-Intervention include Senator Manuel A. Roxas, former
Senate President Franklin Drilon and Atty. Adel Tamano, the City of Isabela[21] and Mayor Cherrylyn SantosAkbar, the Province of Sultan Kudarat[22] and Gov. Suharto Mangudadatu, the Municipality of Linamon in
Lanao del Norte,[23] Ruy Elias Lopez of Davao City and of the Bagobo tribe, Sangguniang
Panlungsod member Marino Ridao and businessman Kisin Buxani, both of Cotabato City; and lawyers Carlo
Gomez, Gerardo Dilig, Nesario Awat, Joselito Alisuag, Richalex Jagmis, all of Palawan City. The Muslim Legal
Assistance Foundation, Inc. (Muslaf) and the Muslim Multi-Sectoral Movement for Peace and Development
(MMMPD) filed their respective Comments-in-Intervention.

By subsequent Resolutions, the Court ordered the consolidation of the petitions. Respondents filed
Comments on the petitions, while some of petitioners submitted their respective Replies.

Respondents, by Manifestation and Motion of August 19, 2008, stated that the Executive
Department shall thoroughly review the MOA-AD and pursue further negotiations to address the issues
hurled against it, and thus moved to dismiss the cases. In the succeeding exchange of pleadings,
respondents motion was met with vigorous opposition from petitioners.

The cases were heard on oral argument on August 15, 22 and 29, 2008 that tackled the following
principal issues:

1. Whether the petitions have become moot and academic

(i) insofar as the mandamus aspect is concerned, in view of the disclosure of official
copies of the final draft of the Memorandum of Agreement (MOA); and

(ii) insofar as the prohibition aspect involving the Local Government Units is concerned,
if it is considered that consultation has become fait accompli with the finalization of
the draft;

2. Whether the constitutionality and the legality of the MOA is ripe for adjudication;

3. Whether respondent Government of the Republic of the Philippines Peace Panel

committed grave abuse of discretion amounting to lack or excess of jurisdiction when it
negotiated and initiated the MOA vis--vis ISSUES Nos. 4 and 5;

4. Whether there is a violation of the peoples right to information on matters of public

concern (1987 Constitution, Article III, Sec. 7) under a state policy of full disclosure of all
its transactions involving public interest (1987 Constitution, Article II, Sec. 28) including
public consultation under Republic Act No. 7160 (LOCAL GOVERNMENT CODE OF 1991)
[;]

If it is in the affirmative, whether prohibition under Rule 65 of the 1997 Rules of Civil
Procedure is an appropriate remedy;

5. Whether by signing the MOA, the Government of the Republic of the Philippines would be
BINDING itself

a) to create and recognize the Bangsamoro Juridical Entity (BJE) as a separate state, or a
juridical, territorial or political subdivision not recognized by law;

b) to revise or amend the Constitution and existing laws to conform to the MOA;

c) to concede to or recognize the claim of the Moro Islamic Liberation Front for ancestral
domain in violation of Republic Act No. 8371 (THE INDIGENOUS PEOPLES RIGHTS ACT
OF 1997), particularly Section 3(g) & Chapter VII (DELINEATION, RECOGNITION OF
ANCESTRAL DOMAINS)[;]

If in the affirmative, whether the Executive Branch has the authority to so bind the
Government of the Republic of the Philippines;

6. Whether the inclusion/exclusion of the Province of North Cotabato, Cities of Zamboanga,

Iligan and Isabela, and the Municipality of Linamon, Lanao del Norte in/from the areas
covered by the projected Bangsamoro Homeland is a justiciable question; and

7. Whether desistance from signing the MOA derogates any prior valid commitments of the
Government of the Republic of the Philippines.[24]

The Court, thereafter, ordered the parties to submit their respective Memoranda. Most of the
parties submitted their memoranda on time.

III. OVERVIEW OF THE MOA-AD

As a necessary backdrop to the consideration of the objections raised in the subject five petitions and six
petitions-in-intervention against the MOA-AD, as well as the two comments-in-intervention in favor of the
MOA-AD, the Court takes an overview of the MOA.

The MOA-AD identifies the Parties to it as the GRP and the MILF.

Under the heading Terms of Reference (TOR), the MOA-AD includes not only four earlier agreements
between the GRP and MILF, but also two agreements between the GRP and the MNLF: the 1976 Tripoli
Agreement, and the Final Peace Agreement on the Implementation of the 1976 Tripoli Agreement, signed
on September 2, 1996 during the administration of President Fidel Ramos.

The MOA-AD also identifies as TOR two local statutes the organic act for the Autonomous Region in Muslim
Mindanao (ARMM)[25] and the Indigenous Peoples Rights Act (IPRA), [26] and several international law
instruments the ILO Convention No. 169 Concerning Indigenous and Tribal Peoples in Independent
Countries in relation to the UN Declaration on the Rights of the Indigenous Peoples, and the UN Charter,
among others.

The MOA-AD includes as a final TOR the generic category of compact rights entrenchment emanating from
the
regime
of dar-ul-muahada (or
territory under compact)
and dar-ul-sulh (or
territoryunder peace agreement) that partakes the nature of a treaty device.

During the height of the Muslim Empire, early Muslim jurists tended to see the world through a simple
dichotomy: there was the dar-ul-Islam (the Abode of Islam) and dar-ul-harb (the Abode ofWar). The first
referred to those lands where Islamic laws held sway, while the second denoted those lands where Muslims
were persecuted or where Muslim laws were outlawed or ineffective. [27]This way of viewing the world,
however, became more complex through the centuries as the Islamic world became part of the
international community of nations.

As Muslim States entered into treaties with their neighbors, even with distant States and intergovernmental organizations, the classical division of the world into dar-ul-Islam and dar-ul-harbeventually
lost its meaning. New terms were drawn up to describe novel ways of perceiving non-Muslim territories. For
instance, areas like dar-ul-muahada (land of compact) and dar-ul-sulh (land of treaty) referred to countries
which, though under a secular regime, maintained peaceful and cooperative relations with Muslim States,
having been bound to each other by treaty or agreement. Dar-ul-aman (land of order), on the other hand,

referred to countries which, though not bound by treaty with Muslim States, maintained freedom of religion
for Muslims.[28]

It thus appears that the compact rights entrenchment emanating from the regime of dar-ulmuahada and dar-ul-sulh simply refers to all other agreements between the MILF and the Philippine
government the Philippines being the land of compact and peace agreement that partake of the nature of
a treaty device, treaty being broadly defined as any solemn agreement in writing that sets out
understandings, obligations, and benefits for both parties which provides for a framework that elaborates
the principles declared in the [MOA-AD].[29]

The MOA-AD states that the Parties HAVE AGREED AND ACKNOWLEDGED AS FOLLOWS, and starts with its
main body.

The main body of the MOA-AD is divided into four

strands, namely, Concepts and Principles, Territory,
Resources, and Governance.

A. CONCEPTS AND PRINCIPLES

This strand begins with the statement that it is the birthright of all Moros and all Indigenous peoples
of Mindanao to identify themselves and be accepted as Bangsamoros. It defines Bangsamoro people as
the natives or original inhabitants of Mindanao and its adjacent islands including Palawan and the Sulu
archipelago at the time of conquest or colonization, and their descendants whether mixed or of full
blood, including their spouses.[30]

Thus, the concept of Bangsamoro, as defined in this strand of the MOA-AD, includes not only Moros as
traditionally understood even by Muslims, [31] but all indigenous peoples of Mindanao and its adjacent
islands. The MOA-AD adds that the freedom of choice of indigenous peoples shall be respected. What this
freedom of choice consists in has not been specifically defined.

The MOA-AD proceeds to refer to the Bangsamoro homeland, the ownership of which is vested
exclusively in the Bangsamoro people by virtue of their prior rights of occupation.[32] Both parties to the
MOA-AD acknowledge that ancestral domain does not form part of the public domain.[33]

The Bangsamoro people are acknowledged as having the right to self-governance, which right is said to be
rooted on ancestral territoriality exercised originally under the suzerain authority of their sultanates and
the Pat
a
Pangampong
ku
Ranaw. The
sultanates
were
described
as
states
or karajaan/kadatuan resembling a body politic endowed with all the elements of a nation-state in the
modern sense.[34]

The MOA-AD thus grounds the right to self-governance of the Bangsamoro people on the past suzerain
authority of the sultanates. As gathered, the territory defined as the Bangsamoro homeland was ruled by
several sultanates and, specifically in the case of the Maranao, by the Pat a Pangampong ku Ranaw, a
confederation of independent principalities (pangampong) each ruled by datus and sultans, none of whom
was supreme over the others.[35]

The MOA-AD goes on to describe the Bangsamoro people as the First Nation with defined territory and
with a system of government having entered into treaties of amity and commerce with foreign nations.

The term First Nation is of Canadian origin referring to the indigenous peoples of that territory, particularly
those known as Indians. In Canada, each of these indigenous peoples is equally entitled to be called First
Nation, hence, all of them are usually described collectively by the plural First Nations. [36] To that extent,
the MOA-AD, by identifying the Bangsamoro people as the First Nation suggesting its exclusive entitlement
to that designation departs from the Canadian usage of the term.

The MOA-AD then mentions for the first time the Bangsamoro Juridical Entity (BJE) to which it
grants the authority and jurisdiction over the Ancestral Domain and Ancestral Lands of the Bangsamoro.[37]

B. TERRITORY

The territory of the Bangsamoro homeland is described as the land mass as well as the maritime,
terrestrial, fluvial and alluvial domains, including the aerial domain and the atmospheric space above it,
embracing the Mindanao-Sulu-Palawan geographic region.[38]

More specifically, the core of the BJE is defined as the present geographic area of the ARMM thus
constituting the following areas: Lanao del Sur, Maguindanao, Sulu, Tawi-Tawi, Basilan,
andMarawi City. Significantly, this core also includes certain municipalities of Lanao del Norte that voted for
inclusion in the ARMM in the 2001 plebiscite.[39]

Outside of this core, the BJE is to cover other provinces, cities, municipalities and barangays, which
are grouped into two categories, Category A and Category B. Each of these areas is to be subjected to a
plebiscite to be held on different dates, years apart from each other. Thus, Category A areas are to be
subjected to a plebiscite not later than twelve (12) months following the signing of the MOA-AD.
[40]
Category B areas, also called Special Intervention Areas, on the other hand, are to be subjected to a
plebiscite twenty-five (25) years from the signing of a separate agreement the Comprehensive Compact. [41]

The Parties to the MOA-AD stipulate that the BJE shall have jurisdiction over all natural resources within
its internal waters, defined as extending fifteen (15) kilometers from the coastline of the BJE area; [42] that
the BJE shall also have territorial waters, which shall stretch beyond the BJE internal waters up to the
baselines of the Republic of the Philippines (RP) south east and south west of mainland Mindanao; and
that within these territorial waters, the BJE and the Central Government (used interchangeably with RP)
shall exercise joint jurisdiction, authority and management over all natural resources. [43] Notably, the
jurisdiction over the internal waters is not similarly described as joint.

The MOA-AD further provides for the sharing of minerals on the territorial waters between the Central
Government and the BJE, in favor of the latter, through production sharing and economic cooperation
agreement.[44] The activities which the Parties are allowed to conduct on the territorial waters are
enumerated, among which are the exploration and utilization of natural resources, regulation of shipping
and fishing activities, and the enforcement of police and safety measures. [45] There is no similar provision
on the sharing of minerals and allowed activities with respect to theinternal waters of the BJE.

C. RESOURCES

The MOA-AD states that the BJE is free to enter into any economic cooperation and trade relations with
foreign countries and shall have the option to establish trade missions in those countries.Such
relationships and understandings, however, are not to include aggression against the GRP. The BJE may
also enter into environmental cooperation agreements. [46]

The external defense of the BJE is to remain the duty and obligation of the Central Government. The
Central Government is also bound to take necessary steps to ensure the BJEs participation in international
meetings and events like those of the ASEAN and the specialized agencies of the UN. The BJE is to be
entitled to participate in Philippine official missions and delegations for the negotiation of border
agreements or protocols for environmental protection and equitable sharing of incomes and revenues
involving the bodies of water adjacent to or between the islands forming part of the ancestral domain. [47]

With regard to the right of exploring for, producing, and obtaining all potential sources of energy,
petroleum, fossil fuel, mineral oil and natural gas, the jurisdiction and control thereon is to be vested in the
BJE as the party having control within its territorial jurisdiction. This right carries the proviso that, in times
of national emergency, when public interest so requires, the Central Government may, for a fixed period
and under reasonable terms as may be agreed upon by both Parties, assume or direct the operation of
such resources.[48]

The sharing between the Central Government and the BJE of total production pertaining to natural
resources is to be 75:25 in favor of the BJE.[49]
The MOA-AD provides that legitimate grievances of the Bangsamoro people arising from any unjust
dispossession of their territorial and proprietary rights, customary land tenures, or their marginalization
shall be acknowledged. Whenever restoration is no longer possible, reparation is to be in such form as
mutually determined by the Parties.[50]

The BJE may modify or cancel the forest concessions, timber licenses, contracts or agreements, mining
concessions, Mineral Production and Sharing Agreements (MPSA), Industrial Forest Management
Agreements (IFMA), and other land tenure instruments granted by the Philippine Government, including
those issued by the present ARMM.[51]

D. GOVERNANCE
The MOA-AD binds the Parties to invite a multinational third-party to observe and monitor the
implementation of the Comprehensive Compact. This compact is to embody the details for the effective
enforcement and the mechanisms and modalities for the actual implementation of the MOA-AD. The MOAAD explicitly provides that the participation of the third party shall not in any way affect the status of the
relationship between the Central Government and the BJE.[52]

The associative relationship

between the Central Government
and the BJE

The MOA-AD describes the relationship of the Central Government and the BJE as associative,
characterized by shared authority and responsibility. And it states that the structure of governance is to be
based on executive, legislative, judicial, and administrative institutions with defined powers and functions
in the Comprehensive Compact.

The MOA-AD provides that its provisions requiring amendments to the existing legal framework shall take
effect upon signing of the Comprehensive Compact and upon effecting the aforesaid amendments , with
due regard to the non-derogation of prior agreements and within the stipulated timeframe to be
contained in the Comprehensive Compact. As will be discussed later, much of the present
controversy hangs on the legality of this provision.

The BJE is granted the power to build, develop and maintain its own institutions inclusive of civil
service, electoral, financial and banking, education, legislation, legal, economic, police and internal

security force, judicial system and correctional institutions, the details of which shall be discussed in the
negotiation of the comprehensive compact.

As stated early on, the MOA-AD was set to be signed on August 5, 2008 by Rodolfo Garcia and Mohagher
Iqbal, Chairpersons of the Peace Negotiating Panels of the GRP and the MILF, respectively. Notably, the
penultimate paragraph of the MOA-AD identifies the signatories as the representatives of the Parties,
meaning the GRP and MILF themselves, and not merely of the negotiating panels. [53] In addition, the
signature page of the MOA-AD states that it is WITNESSED BY Datuk Othman Bin Abd Razak, Special
Adviser to the Prime Minister of Malaysia, ENDORSED BY Ambassador Sayed Elmasry, Adviser to
Organization of the Islamic Conference (OIC) Secretary General and Special Envoy for Peace Process in
Southern Philippines, and SIGNED IN THE PRESENCE OF Dr. Albert G. Romulo, Secretary of Foreign Affairs of
RP and Dato Seri Utama Dr. Rais Bin Yatim, Minister of Foreign Affairs, Malaysia, all of whom were
scheduled to sign the Agreement last August 5, 2008.

Annexed to the MOA-AD are two documents containing the respective lists cum maps of the
provinces, municipalities, and barangays under Categories A and B earlier mentioned in the discussion on
the strand on TERRITORY.

IV. PROCEDURAL ISSUES

A. RIPENESS
The power of judicial review is limited to actual cases or controversies. [54] Courts decline to issue
advisory opinions or to resolve hypothetical or feigned problems, or mere academic questions. [55] The
limitation of the power of judicial review to actual cases and controversies defines the role assigned to the
judiciary in a tripartite allocation of power, to assure that the courts will not intrude into areas committed
to the other branches of government.[56]

An actual case or controversy involves a conflict of legal rights, an assertion of opposite legal
claims, susceptible of judicial resolution as distinguished from a hypothetical or abstract difference or
dispute. There must be a contrariety of legal rights that can be interpreted and enforced on the basis of
existing law and jurisprudence.[57] The Court can decide the constitutionality of an act or treaty only when a
proper case between opposing parties is submitted for judicial determination. [58]

Related to the requirement of an actual case or controversy is the requirement of ripeness. A

question is ripe for adjudication when the act being challenged has had a direct adverse effect on the
individual challenging it.[59] For a case to be considered ripe for adjudication, it is a prerequisite that
something had then been accomplished or performed by either branch before a court may come into the
picture,[60] and the petitioner must allege the existence of an immediate or threatened injury to itself as a
result of the challenged action. [61] 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. [62]

The Solicitor General argues that there is no justiciable controversy that is ripe for judicial review in
the present petitions, reasoning that

The unsigned MOA-AD is simply a list of consensus points subject to further

negotiations and legislative enactments as well as constitutional processes aimed at
attaining a final peaceful agreement. Simply put, the MOA-AD remains to be a proposal that
does not automatically create legally demandable rights and obligations until the list of
operative acts required have been duly complied with. x x x

xxxx

In the cases at bar, it is respectfully submitted that this Honorable Court has no
authority to pass upon issues based on hypothetical or feigned constitutional problems or
interests with no concrete bases.Considering the preliminary character of the MOA-AD, there
are no concrete acts that could possibly violate petitioners and intervenors rights since the
acts complained of are mere contemplated steps toward the formulation of a final peace
agreement. Plainly, petitioners and intervenors perceived injury, if at all, is merely imaginary
and illusory apart from being unfounded and based on mere conjectures. (Underscoring
supplied)

The Solicitor General cites[63] the following provisions of the MOA-AD:

TERRITORY

xxxx

2. Toward this end, the Parties enter into the following stipulations:
xxxx

d. Without derogating from the requirements of prior agreements, the

Government stipulates to conduct and deliver, using all possible legal
measures, within twelve (12) months following the signing of the MOA-AD,
a plebiscite covering the areas as enumerated in the list and depicted in
the map as Category A attached herein (the Annex). The Annex constitutes
an integral part of this framework agreement. Toward this end, the Parties
shall endeavor to complete the negotiations and resolve all outstanding
issues on the Comprehensive Compact within fifteen (15) months from the
signing of the MOA-AD.

xxxx

GOVERNANCE

xxxx

7. The Parties agree that mechanisms and modalities for the actual implementation
of this MOA-AD shall be spelt out in the Comprehensive Compact to mutually take
such steps to enable it to occur effectively.

Any provisions of the MOA-AD requiring amendments to the existing legal framework
shall come into force upon the signing of a Comprehensive Compact and upon
effecting the necessary changes to the legal framework with due regard to nonderogation of prior agreements and within the stipulated timeframe to be
contained in the Comprehensive Compact.[64] (Underscoring supplied)

The Solicitor Generals arguments fail to persuade.

Concrete acts under the MOA-AD are not necessary to render the present controversy ripe.
In Pimentel, Jr. v. Aguirre,[65] this Court held:
x x x [B]y the mere enactment of the questioned law or the approval of the
challenged action, the dispute is said to have ripened into a judicial controversy even
without any other overt act. Indeed, even a singular violation of the Constitution and/or the
law is enough to awaken judicial duty.

xxxx

By the same token, when an act of the President, who in our constitutional scheme is
a coequal of Congress, is seriously alleged to have infringed the Constitution and the laws x
x x settling the dispute becomes the duty and the responsibility of the courts. [66]

In Santa Fe Independent School District v. Doe,[67] the United States Supreme Court held that the
challenge to the constitutionality of the schools policy allowing student-led prayers and speeches before
games was ripe for adjudication, even if no public prayer had yet been led under the policy, because the
policy was being challenged as unconstitutional on its face.[68]

That the law or act in question is not yet effective does not negate ripeness. For example, in New
York v. United States,[69] decided in 1992, the United States Supreme Court held that the action by the
State of New York challenging the provisions of the Low-Level Radioactive Waste Policy Act was ripe for
adjudication even if the questioned provision was not to take effect until January 1, 1996, because the
parties agreed that New York had to take immediate action to avoid the provision's consequences. [70]

The present petitions pray for Certiorari, [71] Prohibition, and Mandamus. Certiorari and Prohibition
are remedies granted by law when any tribunal, board or officer has acted, in the case of certiorari, or is
proceeding, in the case of prohibition, without or in excess of its jurisdiction or with grave abuse of
discretion amounting to lack or excess of jurisdiction. [72] Mandamus is a remedy granted by law when any
tribunal, corporation, board, officer or person unlawfully neglects the performance of an act which the law
specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes another from
the use or enjoyment of a right or office to which such other is entitled. [73] Certiorari, Mandamus and
Prohibition are appropriate remedies to raise constitutional issues and to review and/or prohibit/nullify,
when proper, acts of legislative and executive officials. [74]

The authority of the GRP Negotiating Panel is defined by Executive Order No. 3 (E.O. No. 3), issued
on February 28, 2001.[75] The said executive order requires that [t]he government's policy framework for
peace, including the systematic approach and the administrative structure for carrying out the
comprehensive peace process x x x be governed by this Executive Order. [76]

The present petitions allege that respondents GRP Panel and PAPP Esperon drafted the terms of the
MOA-AD without consulting the local government units or communities affected, nor informing them of the
proceedings. As will be discussed in greater detail later, such omission, by itself, constitutes a departure
by respondents from their mandate under E.O. No. 3.

Furthermore, the petitions allege that the provisions of the MOA-AD violate the Constitution. The
MOA-AD provides that any provisions of the MOA-AD requiring amendments to the existing legal framework
shall come into force upon the signing of a Comprehensive Compact and upon effecting the necessary
changes to the legal framework, implying an amendment of the Constitution to accommodate the MOA-

AD. This stipulation, in effect, guaranteed to the MILF the amendment of the Constitution. Such act
constitutes another violation of its authority. Again, these points will be discussed in more detail later.
As the petitions allege acts or omissions on the part of respondent that exceed their authority,
by violating their duties under E.O. No. 3 and the provisions of the Constitution and statutes, the petitions
make a prima facie case for Certiorari, Prohibition, and Mandamus, and an actual case or controversy ripe
for adjudication exists. When an act of a branch of government 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.[77]

B. LOCUS STANDI

For a party to have locus standi, one must allege such a personal stake in the outcome of the controversy
as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so
largely depends for illumination of difficult constitutional questions. [78]

Because constitutional cases are often public actions in which the relief sought is likely to affect other
persons, a preliminary question frequently arises as to this interest in the constitutional question raised. [79]

When suing as a citizen, the person complaining must allege that he has been or is about to be denied
some right or privilege to which he is lawfully entitled or that he is about to be subjected to some burdens
or penalties by reason of the statute or act complained of. [80] When the issue concerns a public right, it is
sufficient that the petitioner is a citizen and has an interest in the execution of the laws. [81]

For a taxpayer, one is allowed to sue where there is an assertion that public funds are illegally disbursed or
deflected to an illegal purpose, or that there is a wastage of public funds through the enforcement of an
invalid or unconstitutional law.[82] The Court retains discretion whether or not to allow a taxpayers suit. [83]

In the case of a legislator or member of Congress, an act of the Executive that injures the institution of
Congress causes a derivative but nonetheless substantial injury that can be questioned by legislators. A
member of the House of Representatives has standing to maintain inviolate the prerogatives, powers and
privileges vested by the Constitution in his office.[84]
An organization may be granted standing to assert the rights of its members, [85] but the mere invocation by
the Integrated Bar of the Philippines or any member of the legal profession of the duty to preserve the rule
of law does not suffice to clothe it with standing.[86]

As regards a local government unit (LGU), it can seek relief in order to protect or vindicate an interest of its
own, and of the other LGUs.[87]

Intervenors, meanwhile, may be given legal standing upon showing of facts that satisfy the requirements
of the law authorizing intervention,[88] such as a legal interest in the matter in litigation, or in the success of
either of the parties.

In any case, the Court has discretion to relax the procedural technicality on locus standi, given the liberal
attitude it has exercised, highlighted in the case of David v. Macapagal-Arroyo,[89] where technicalities of
procedure were brushed aside, the constitutional issues raised being of paramount public interest or of
transcendental importance deserving the attention of the Court in view of their seriousness, novelty and
weight as precedents.[90] The Courts forbearing stance on locus standi on issues involving constitutional
issues has for its purpose the protection of fundamental rights.

In not a few cases, the Court, in keeping with its duty under the Constitution to determine whether the
other branches of government have kept themselves within the limits of the Constitution and the laws and
have not abused the discretion given them, has brushed aside technical rules of procedure. [91]

In the petitions at bar, petitioners Province of North Cotabato (G.R. No. 183591) Province of
Zamboanga del Norte (G.R. No. 183951), City of Iligan (G.R. No. 183893) and City of
Zamboanga (G.R. No. 183752) and petitioners-in-intervention Province of Sultan Kudarat, City of
Isabela and Municipality of Linamon have locus standi in view of the direct and substantial injury that
they, as LGUs, would suffer as their territories, whether in whole or in part, are to be included in the
intended domain of the BJE. These petitioners allege that they did not vote for their inclusion in the ARMM
which would be expanded to form the BJE territory. Petitioners legal standing is thus beyond doubt.

In G.R. No. 183962, petitioners Ernesto Maceda, Jejomar Binay and Aquilino Pimentel III would have
no standing as citizens and taxpayers for their failure to specify that they would be denied some right or
privilege or there would be wastage of public funds. The fact that they are a former Senator, an incumbent
mayor of Makati City, and a resident of Cagayan de Oro, respectively, is of no consequence. Considering
their invocation of the transcendental importance of the issues at hand, however, the Court grants them
standing.

Intervenors Franklin Drilon and Adel Tamano, in alleging their standing as taxpayers, assert that
government funds would be expended for the conduct of an illegal and unconstitutional plebiscite to
delineate the BJE territory. On that score alone, they can be given legal standing. Their allegation that the
issues involved in these petitions are of undeniable transcendental importance clothes them with added
basis for their personality to intervene in these petitions.

With regard to Senator Manuel Roxas, his standing is premised on his being a member of the Senate
and a citizen to enforce compliance by respondents of the publics constitutional right to be informed of the
MOA-AD, as well as on a genuine legal interest in the matter in litigation, or in the success or failure of
either of the parties. He thus possesses the requisite standing as an intervenor.

With respect to Intervenors Ruy Elias Lopez, as a former congressman of the 3 rd district of Davao City, a
taxpayer and a member of the Bagobo tribe; Carlo B. Gomez, et al., as members of the IBP Palawan
chapter, citizens and taxpayers; Marino Ridao, as taxpayer, resident and member of the Sangguniang
Panlungsod of Cotabato City; and Kisin Buxani, as taxpayer, they failed to allege any proper legal
interest in the present petitions. Just the same, the Court exercises its discretion to relax the procedural
technicality on locus standi given the paramount public interest in the issues at hand.

Intervening respondents Muslim Multi-Sectoral Movement for Peace and Development, an

advocacy group for justice and the attainment of peace and prosperity in Muslim Mindanao; andMuslim
Legal Assistance Foundation Inc., a non-government organization of Muslim lawyers, allege that they
stand to be benefited or prejudiced, as the case may be, in the resolution of the petitions concerning the
MOA-AD, and prays for the denial of the petitions on the grounds therein stated. Such legal interest suffices
to clothe them with standing.

B. MOOTNESS

Respondents insist that the present petitions have been rendered moot with the satisfaction of all the
reliefs prayed for by petitioners and the subsequent pronouncement of the Executive Secretary that [n]o
matter what the Supreme Court ultimately decides[,] the government will not sign the MOA. [92]

In lending credence to this policy decision, the Solicitor General points out that the President had already
disbanded the GRP Peace Panel.[93]

In David v. Macapagal-Arroyo,[94] this Court held that the moot and academic principle not being a magical
formula that automatically dissuades courts in resolving a case, it will decide cases, otherwise moot and
academic, if it finds that (a) there is a grave violation of the Constitution; [95] (b) the situation is of
exceptional character and paramount public interest is involved; [96] (c) the constitutional issue raised
requires formulation of controlling principles to guide the bench, the bar, and the public; [97] and (d) the
case is capable of repetition yet evading review.[98]

Another exclusionary circumstance that may be considered is where there is a voluntary cessation of the
activity complained of by the defendant or doer. Thus, once a suit is filed and the doer voluntarily ceases
the challenged conduct, it does not automatically deprive the tribunal of power to hear and determine the
case and does not render the case moot especially when the plaintiff seeks damages or prays for
injunctive relief against the possible recurrence of the violation. [99]

The present petitions fall squarely into these exceptions to thus thrust them into the domain of judicial
review. The grounds cited above in David are just as applicable in the present cases as they were, not only
in David, but also in Province of Batangas v. Romulo[100] and Manalo v. Calderon[101] where the Court
similarly decided them on the merits, supervening events that would ordinarily have rendered the same
moot notwithstanding.
Petitions not mooted

Contrary then to the asseverations of respondents, the non-signing of the MOA-AD and the eventual
dissolution of the GRP Peace Panel did not moot the present petitions. It bears emphasis that the signing of
the MOA-AD did not push through due to the Courts issuance of a Temporary Restraining Order.

Contrary too to respondents position, the MOA-AD cannot be considered a mere list of consensus points,
especially given its nomenclature, the need to have it signed or initialed by all the parties concerned
on August 5, 2008, and the far-reaching Constitutional implications of these consensus
points, foremost of which is the creation of the BJE.

In fact, as what will, in the main, be discussed, there is a commitment on the part of respondents to
amend and effect necessary changes to the existing legal framework for certain provisions of
the MOA-AD to take effect. Consequently, the present petitions are not confined to the terms and
provisions of the MOA-AD, but to other on-going and future negotiations and agreements necessary for
its realization. The petitions have not, therefore, been rendered moot and academic simply by the public
disclosure of the MOA-AD,[102] the manifestation that it will not be signed as well as the disbanding of the
GRP Panel not withstanding.

Petitions are imbued with paramount public interest

There is no gainsaying that the petitions are imbued with paramount public interest, involving a significant
part of the countrys territory and the wide-ranging political modifications of affected LGUs. The
assertion that the MOA-AD is subject to further legal enactments including possible
Constitutional amendments more than ever provides impetus for the Court to formulate
controlling principles to guide the bench, the bar, the public and, in this case, the government
and its negotiating entity.

Respondents cite Suplico v. NEDA, et al.[103] where the Court did not pontificat[e] on issues which no longer
legitimately constitute an actual case or controversy [as this] will do more harm than good to the nation as
a whole.

The present petitions must be differentiated from Suplico. Primarily, in Suplico, what was assailed and
eventually cancelled was a stand-alone government procurement contract for a national broadband
network involving a one-time contractual relation between two partiesthe government and a private
foreign corporation. As the issues therein involved specific government procurement policies and standard
principles on contracts, the majority opinion in Suplico found nothing exceptional therein, the factual
circumstances being peculiar only to the transactions and parties involved in the controversy.
The MOA-AD is part of a series of agreements

In the present controversy, the MOA-AD is a significant part of a series of agreements necessary to
carry out the Tripoli Agreement 2001. The MOA-AD which dwells on the Ancestral Domain Aspect of said
Tripoli Agreement is the third such component to be undertaken following the implementation of
the Security Aspect in August 2001 and the Humanitarian, Rehabilitation and Development Aspect in May
2002.

Accordingly, even if the Executive Secretary, in his Memorandum of August 28, 2008 to the Solicitor
General, has stated that no matter what the Supreme Court ultimately decides[,] the government will not
sign the MOA[-AD], mootness will not set in in light of the terms of the Tripoli Agreement 2001.

Need to formulate principles-guidelines

Surely, the present MOA-AD can be renegotiated or another one will be drawn up to carry out the
Ancestral Domain Aspect of the Tripoli Agreement 2001, in another or in any form, which could
contain similar or significantly drastic provisions. While the Court notes the word of the Executive
Secretary that the government is committed to securing an agreement that is both constitutional and
equitable because that is the only way that long-lasting peace can be assured, it is minded to render
a decision on the merits in the present petitions to formulate controlling principles to guide the
bench, the bar, the public and, most especially, the government in negotiating with the MILF
regarding Ancestral Domain.

Respondents invite the Courts attention to the separate opinion of then Chief Justice Artemio Panganiban
in Sanlakas v. Reyes[104] in which he stated that the doctrine of capable of repetition yet evading review can
override mootness, provided the party raising it in a proper case has been and/or continue to be prejudiced
or damaged as a direct result of their issuance. They contend that the Court must have jurisdiction over
the subject matter for the doctrine to be invoked.

The present petitions all contain prayers for Prohibition over which this Court exercises original
jurisdiction. While G.R. No. 183893 (City of Iligan v. GRP) is a petition for Injunction and Declaratory Relief,
the Court will treat it as one for Prohibition as it has far reaching implications and raises questions that
need to be resolved.[105] At all events, the Court has jurisdiction over most if not the rest of the petitions.

Indeed, the present petitions afford a proper venue for the Court to again apply the doctrine immediately
referred to as what it had done in a number of landmark cases. [106] There is a reasonableexpectation that
petitioners, particularly the Provinces of North Cotabato, Zamboanga del Norte and Sultan Kudarat, the
Cities of Zamboanga, Iligan and Isabela, and the Municipality of Linamon, will again be subjected to the
same problem in the future as respondents actions are capable of repetition, in another or any form.

It is with respect to the prayers for Mandamus that the petitions have become moot, respondents having,
by Compliance of August 7, 2008, provided this Court and petitioners with official copies of the final draft
of the MOA-AD and its annexes. Too, intervenors have been furnished, or have procured for themselves,
copies of the MOA-AD.

V. SUBSTANTIVE ISSUES

As culled from the Petitions and Petitions-in-Intervention, there are basically two SUBSTANTIVE issues to be
resolved, one relating to the manner in which the MOA-AD was negotiated and finalized, the other relating
to its provisions, viz:

1. Did respondents violate constitutional and statutory provisions on public consultation and the right to
information when they negotiated and later initialed the MOA-AD?

2. Do the contents of the MOA-AD violate the Constitution and the laws?

ON THE FIRST SUBSTANTIVE ISSUE

Petitioners invoke their constitutional right to information on matters of public concern, as

provided in Section 7, Article III on the Bill of Rights:

Sec. 7. The right of the people to information on matters of public concern shall be
recognized. Access to official records, and to documents, and papers pertaining to official
acts, transactions, or decisions, as well as to government research data used as basis for
policy development, shall be afforded the citizen, subject to such limitations as may be
provided by law.[107]

As early as 1948, in Subido v. Ozaeta,[108] the Court has recognized the statutory right to examine and
inspect public records, a right which was eventually accorded constitutional status.

The right of access to public documents, as enshrined in both the 1973 Constitution and the 1987
Constitution, has been recognized as a self-executory constitutional right. [109]

In the 1976 case of Baldoza v. Hon. Judge Dimaano,[110] the Court ruled that access to public records is
predicated on the right of the people to acquire information on matters of public concern since,
undoubtedly, in a democracy, the pubic has a legitimate interest in matters of social and political
significance.

x x x The incorporation of this right in the Constitution is a recognition of the fundamental

role of free exchange of information in a democracy. There can be no realistic perception by
the public of the nations problems, nor a meaningful democratic decision-making if they are
denied access to information of general interest. Information is needed to enable the
members of society to cope with the exigencies of the times. As has been aptly observed:
Maintaining the flow of such information depends on protection for both its acquisition and
its dissemination since, if either process is interrupted, the flow inevitably ceases. x x x [111]

In the same way that free discussion enables members of society to cope with the exigencies of their time,
access to information of general interest aids the people in democratic decision-making by giving them a
better perspective of the vital issues confronting the nation [112] so that they may be able to criticize and
participate in the affairs of the government in a responsible, reasonable and effective manner. It is by
ensuring an unfettered and uninhibited exchange of ideas among a well-informed public that a government
remains responsive to the changes desired by the people.[113]

The MOA-AD is a matter of public concern

That the subject of the information sought in the present cases is a matter of public
concern[114] faces no serious challenge. In fact, respondents admit that the MOA-AD is indeed of public
concern.[115] In previous cases, the Court found that the regularity of real estate transactions entered in the
Register of Deeds,[116] the need for adequate notice to the public of the various laws, [117] the civil service
eligibility of a public employee,[118] the proper management of GSIS funds allegedly used to grant loans to
public officials,[119] the recovery of the Marcoses alleged ill-gotten wealth, [120] and the identity of party-list
nominees,[121] among others, are matters of public concern. Undoubtedly, the MOA-AD subject of the
present cases is of public concern, involving as it does the sovereignty and territorial integrity of
the State, which directly affects the lives of the public at large.

Matters of public concern covered by the right to information include steps and negotiations leading to the
consummation of the contract. In not distinguishing as to the executory nature or commercial character of
agreements, the Court has categorically ruled:

x x x [T]he right to information contemplates inclusion of negotiations leading to the

consummation of the transaction. Certainly, a consummated contract is not a
requirement for the exercise of the right to information. Otherwise, the people can never
exercise the right if no contract is consummated, and if one is consummated, it may be too
late for the public to expose its defects.
Requiring a consummated contract will keep the public in the dark until the contract, which
may be grossly disadvantageous to the government or even illegal, becomes fait
accompli. This negates the State policy of full transparency on matters of public concern, a
situation which the framers of the Constitution could not have intended. Such a requirement
will
prevent
the
citizenry
from
participating
in
the
public
discussion
of
anyproposed contract, effectively truncating a basic right enshrined in the Bill of Rights. We
can allow neither an emasculation of a constitutional right, nor a retreat by the State of its
avowed policy of full disclosure of all its transactions involving public interest. [122] (Emphasis
and italics in the original)

Intended as a splendid symmetry[123] to the right to information under the Bill of Rights is the policy of
public disclosure under Section 28, Article II of the Constitution reading:

Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and
implements a policy of full public disclosure of all its transactions involving public interest.
[124]

The policy of full public disclosure enunciated in above-quoted Section 28 complements the right of access
to information on matters of public concern found in the Bill of Rights. The right to information guarantees
the right of the people to demand information, while Section 28 recognizes the duty of officialdom to give
information even if nobody demands.[125]

The policy of public disclosure establishes a concrete ethical principle for the conduct of public affairs in a
genuinely open democracy, with the peoples right to know as the centerpiece. It is a mandate of the State
to be accountable by following such policy.[126] These provisions are vital to the exercise of the freedom of
expression and essential to hold public officials at all times accountable to the people. [127]

Whether Section 28 is self-executory, the records of the deliberations of the Constitutional Commission so
disclose:

MR. SUAREZ. And since this is not self-executory, this policy will not be enunciated or
will not be in force and effect until after Congress shall have provided it.

MR. OPLE. I expect it to influence the climate of public ethics immediately but, of course, the
implementing law will have to be enacted by Congress, Mr. Presiding Officer. [128]

The following discourse, after Commissioner Hilario Davide, Jr., sought clarification on the issue, is
enlightening.

MR. DAVIDE. I would like to get some clarifications on this. Mr. Presiding Officer, did I
get the Gentleman correctly as having said that this is not a self-executing provision? It would
require a legislation by Congress to implement?

MR. OPLE. Yes. Originally, it was going to be self-executing, but I accepted an

amendment from Commissioner Regalado, so that the safeguards on national interest are
modified by the clause as may be provided by law

MR. DAVIDE. But as worded, does it not mean that this will immediately take
effect and Congress may provide for reasonable safeguards on the sole ground
national interest?

MR. OPLE. Yes. I think so, Mr. Presiding Officer, I said earlier that it should
immediately influence the climate of the conduct of public affairs but, of course,
Congress here may no longer pass a law revoking it, or if this is approved, revoking this
principle, which is inconsistent with this policy.[129] (Emphasis supplied)

Indubitably, the effectivity of the policy of public disclosure need not await the passing of a
statute. As Congress cannot revoke this principle, it is merely directed to provide for reasonable
safeguards. The complete and effective exercise of the right to information necessitates that its
complementary provision on public disclosure derive the same self-executory nature. Since both provisions
go hand-in-hand, it is absurd to say that the broader [130] right to information on matters of public concern is
already enforceable while the correlative duty of the State to disclose its transactions involving public
interest is not enforceable until there is an enabling law. Respondents cannot thus point to the absence of
an implementing legislation as an excuse in not effecting such policy.

An essential element of these freedoms is to keep open a continuing dialogue or process of communication
between the government and the people. It is in the interest of the State that the channels for free political

discussion be maintained to the end that the government may perceive and be responsive to the peoples
will.[131] Envisioned to be corollary to the twin rights to information and disclosure is the design for feedback
mechanisms.

MS. ROSARIO BRAID. Yes. And lastly, Mr. Presiding Officer, will the people be able
to participate? Will the government provide feedback mechanisms so that the
people can participate and can react where the existing media facilities are not
able to provide full feedback mechanisms to the government? I suppose this will
be part of the government implementing operational mechanisms.

MR. OPLE. Yes. I think through their elected representatives and that is how these
courses take place. There is a message and a feedback, both ways.

xxxx

MS. ROSARIO BRAID. Mr. Presiding Officer, may I just make one last sentence?

I think when we talk about the feedback network, we are not talking about
public officials but also network of private business o[r] community-based
organizations that will be reacting. As a matter of fact, we will put more credence or
credibility on the private network of volunteers and voluntary community-based
organizations. So I do not think we are afraid that there will be another OMA in the making.
[132]
(Emphasis supplied)

The imperative of a public consultation, as a species of the right to information, is evident in the marching
orders to respondents. The mechanics for the duty to disclose information and to conduct public
consultation regarding the peace agenda and process is manifestly provided by E.O. No. 3. [133] The
preambulatory clause of E.O. No. 3 declares that there is a need to further enhance the contribution of civil
society to the comprehensive peace process by institutionalizing the peoples participation.
One of the three underlying principles of the comprehensive peace process is that it should be
community-based, reflecting the sentiments, values and principles important to all Filipinos and shall be
defined not by the government alone, nor by the different contending groups only, but by all Filipinos as
one community.[134] Included as a component of the comprehensive peace process is consensus-building
and empowerment for peace, which includes continuing consultations on both national and local levels to
build consensus for a peace agenda and process, and the mobilization and facilitation of peoples
participation in the peace process.[135]

Clearly, E.O. No. 3 contemplates not just the conduct of a plebiscite to effectuate
continuing consultations, contrary to respondents position that plebiscite is more than
sufficient consultation.[136]

Further, E.O. No. 3 enumerates the functions and responsibilities of the PAPP, one of which is to
[c]onduct regular dialogues with the National Peace Forum (NPF) and other peace partners to seek relevant
information, comments, recommendations as well as to render appropriate and timely reports on the
progress of the comprehensive peace process. [137] E.O. No. 3 mandates the establishment of the NPF to
be the principal forum for the PAPP to consult with and seek advi[c]e from the peace advocates, peace
partners and concerned sectors of society on both national and local levels, on the implementation of the
comprehensive peace process, as well as for government[-]civil society dialogue and consensus-building
on peace agenda and initiatives.[138]

In fine, E.O. No. 3 establishes petitioners right to be consulted on the peace agenda, as a
corollary to the constitutional right to information and disclosure.

PAPP Esperon committed grave abuse of discretion

The PAPP committed grave abuse of discretion when he failed to carry out the pertinent
consultation. The furtive process by which the MOA-AD was designed and crafted runs contrary to and
in excess of the legal authority , and amounts to a whimsical, capricious, oppressive, arbitrary and
despotic exercise thereof.

The Court may not, of course, require the PAPP to conduct the consultation in a particular way or
manner. It may, however, require him to comply with the law and discharge the functions within the
authority granted by the President.[139]

Petitioners are not claiming a seat at the negotiating table, contrary to respondents retort in justifying the
denial of petitioners right to be consulted. Respondents stance manifests the manner by which they treat
the salient provisions of E.O. No. 3 on peoples participation. Such disregard of the express mandate of the
President is not much different from superficial conduct toward token provisos that border on classic lip
service.[140] It illustrates a gross evasion of positive duty and a virtual refusal to perform the duty enjoined.

As for respondents invocation of the doctrine of executive privilege, it is not tenable under the
premises. The argument defies sound reason when contrasted with E.O. No. 3s explicit provisions on
continuing consultation and dialogue on both national and local levels. The executive order even
recognizes the exercise of the publics right even before the GRP makes its official recommendations
or before the government proffers its definite propositions.[141] It bear emphasis that E.O. No. 3 seeks to
elicit relevant advice, information, comments and recommendations from the people through dialogue.

AT ALL EVENTS, respondents effectively waived the defense of executive privilege in view of their
unqualified disclosure of the official copies of the final draft of the MOA-AD. By unconditionally complying
with the Courts August 4, 2008 Resolution, without a prayer for the documents disclosure in camera, or
without a manifestation that it was complying therewith ex abundante ad cautelam.

Petitioners assertion that the Local Government Code (LGC) of 1991 declares it a State policy to require all
national agencies and offices to conduct periodic consultations with appropriate local government units,
non-governmental and people's organizations, and other concerned sectors of the community before any
project or program is implemented in their respective jurisdictions [142] is well-taken. The LGC chapter on
intergovernmental relations puts flesh into this avowed policy:

Prior Consultations Required. No project or program shall be implemented by government

authorities unless the consultations mentioned in Sections 2 (c) and 26 hereof are complied
with, and prior approval of the sanggunian concerned is obtained: Provided, That occupants
in areas where such projects are to be implemented shall not be evicted unless appropriate
relocation sites have been provided, in accordance with the provisions of the Constitution.
[143]
(Italics and underscoring supplied)

In Lina, Jr. v. Hon. Pao,[144] the Court held that the above-stated policy and above-quoted provision of the
LGU apply only to national programs or projects which are to be implemented in a particular local
community. Among the programs and projects covered are those that are critical to the environment and
human ecology including those that may call for the eviction of a particular group of people residing in the
locality where these will be implemented.[145] The MOA-AD is one peculiar program that
unequivocally and unilaterally vests ownership of a vast territory to the Bangsamoro people,

[146]

which could pervasively and drastically result to the diaspora or displacement of a great
number of inhabitants from their total environment.

With respect to the indigenous cultural communities/indigenous peoples (ICCs/IPs), whose interests are
represented herein by petitioner Lopez and are adversely affected by the MOA-AD, the ICCs/IPs have,
under the IPRA, the right to participate fully at all levels of decision-making in matters which may affect
their rights, lives and destinies. [147] The MOA-AD, an instrument recognizing ancestral domain, failed to
justify its non-compliance with the clear-cut mechanisms ordained in said Act, [148] which entails, among
other things, the observance of the free and prior informed consent of the ICCs/IPs.
Notably, the IPRA does not grant the Executive Department or any government agency the power to
delineate and recognize an ancestral domain claim by mere agreement or compromise. The recognition of
the ancestral domain is the raison detre of the MOA-AD, without which all other stipulations or consensus
points necessarily must fail. In proceeding to make a sweeping declaration on ancestral domain, without
complying with the IPRA, which is cited as one of the TOR of the MOA-AD, respondents clearly
transcended the boundaries of their authority. As it seems, even the heart of the MOA-AD is still
subject to necessary changes to the legal framework. While paragraph 7 on Governance suspends the
effectivity of all provisions requiring changes to the legal framework, such clause is itself invalid, as will be
discussed in the following section.

Indeed, ours is an open society, with all the acts of the government subject to public scrutiny and available
always to public cognizance. This has to be so if the country is to remain democratic, with sovereignty
residing in the people and all government authority emanating from them. [149]

ON THE SECOND SUBSTANTIVE ISSUE

With regard to the provisions of the MOA-AD, there can be no question that they cannot all be
accommodated under the present Constitution and laws. Respondents have admitted as much in the oral
arguments before this Court, and the MOA-AD itself recognizes the need to amend the existing legal
framework to render effective at least some of its provisions. Respondents, nonetheless, counter that the
MOA-AD is free of any legal infirmity because any provisions therein which are inconsistent with the
present legal framework will not be effective until the necessary changes to that framework are made. The
validity of this argument will be considered later. For now, the Court shall pass upon how

The MOA-AD is inconsistent with the Constitution and

laws as presently worded.

In general, the objections against the MOA-AD center on the extent of the powers conceded therein to the
BJE. Petitioners assert that the powers granted to the BJE exceed those granted to any local government
under present laws, and even go beyond those of the present ARMM. Before assessing some of the specific
powers that would have been vested in the BJE, however, it would be useful to turn first to a general idea
that serves as a unifying link to the different provisions of the MOA-AD, namely, the international
law concept of association. Significantly, the MOA-AD explicitly alludes to this concept, indicating that the
Parties actually framed its provisions with it in mind.

Association is referred to in paragraph 3 on TERRITORY, paragraph 11 on RESOURCES, and paragraph 4

on GOVERNANCE. It is in the last mentioned provision, however, that the MOA-AD most clearly uses it to
describe the envisioned relationship between the BJE and the Central Government.

4. The relationship between the Central Government and the Bangsamoro juridical
entity
shall
be associative
characterized
by
shared
authority
and
responsibility with a structure of governance based on executive, legislative, judicial and
administrative institutions with defined powers and functions in the comprehensive
compact. A period of transition shall be established in a comprehensive peace compact

specifying the relationship between the Central Government and the BJE. (Emphasis and
underscoring supplied)

The nature of the associative relationship may have been intended to be defined more precisely in
the still to be forged Comprehensive Compact. Nonetheless, given that there is a concept of association in
international law, and the MOA-AD by its inclusion of international law instruments in its TOR placed itself
in an international legal context, that concept of association may be brought to bear in understanding the
use of the term associative in the MOA-AD.

Keitner and Reisman state that

[a]n association is formed when two states of unequal power voluntarily establish durable
links. In the basic model, one state, the associate, delegates certain responsibilities
to the other, the principal, while maintaining its international status as a state.
Free associations represent a middle ground between integration and
independence. x x x[150] (Emphasis and underscoring supplied)

For purposes of illustration, the Republic of the Marshall Islands and the Federated States of Micronesia
(FSM), formerly part of the U.S.-administered Trust Territory of the Pacific Islands, [151] are associated states
of the U.S. pursuant to a Compact of Free Association. The currency in these countries is the U.S. dollar,
indicating their very close ties with the U.S., yet they issue their own travel documents, which is a mark of
their statehood. Their international legal status as states was confirmed by the UN Security Council and by
their admission to UN membership.

According to their compacts of free association, the Marshall Islands and the FSM generally have the
capacity to conduct foreign affairs in their own name and right, such capacity extending to matters such as
the law of the sea, marine resources, trade, banking, postal, civil aviation, and cultural relations. The U.S.
government, when conducting its foreign affairs, is obligated to consult with the governments of the
Marshall Islands or the FSM on matters which it (U.S. government) regards as relating to or affecting either
government.

In the event of attacks or threats against the Marshall Islands or the FSM, the U.S. government has the
authority and obligation to defend them as if they were part of U.S. territory. The U.S.government,
moreover, has the option of establishing and using military areas and facilities within these associated
states and has the right to bar the military personnel of any third country from having access to these
territories for military purposes.

It bears noting that in U.S. constitutional and international practice, free association is understood as an
international association between sovereigns. The Compact of Free Association is a treaty which is
subordinate to the associated nations national constitution, and each party may terminate the association
consistent with the right of independence. It has been said that, with the admission of the U.S.-associated
states to the UN in 1990, the UN recognized that the American model of free association is actually based
on an underlying status of independence.[152]

In international practice, the associated state arrangement has usually been used as a transitional
device of former colonies on their way to full independence. Examples of states that have passed through
the status of associated states as a transitional phase are Antigua, St. Kitts-Nevis-Anguilla, Dominica, St.
Lucia, St. Vincent and Grenada. All have since become independent states.[153]

Back to the MOA-AD, it contains many provisions which are consistent with the international legal concept
of association, specifically the following: the BJEs capacity to enter into economic and trade relations with
foreign countries, the commitment of the Central Government to ensure the BJEs participation in meetings

and events in the ASEAN and the specialized UN agencies, and the continuing responsibility of the Central
Government over external defense. Moreover, the BJEs right to participate in Philippine official missions
bearing on negotiation of border agreements, environmental protection, and sharing of revenues
pertaining to the bodies of water adjacent to or between the islands forming part of the ancestral
domain, resembles the right of the governments ofFSM and the Marshall Islands to be consulted by the
U.S. government on any foreign affairs matter affecting them.

These provisions of the MOA indicate, among other things, that the Parties aimed to vest in the BJE the
status of an associated state or, at any rate, a status closely approximating it.

The
concept
of association is not recognized under the present
Constitution

No province, city, or municipality, not even the ARMM, is recognized under our laws as having
an associative relationship with the national government. Indeed, the concept implies powers that go
beyond anything ever granted by the Constitution to any local or regional government. It also implies the
recognition of the associated entity as a state. The Constitution, however, does not contemplate any state
in this jurisdiction other than the Philippine State, much less does it provide for a transitory status that
aims to prepare any part of Philippine territory for independence.

Even the mere concept animating many of the MOA-ADs provisions, therefore, already requires for its
validity the amendment of constitutional provisions, specifically the following provisions of Article X:

SECTION 1. The territorial and political subdivisions of the Republic of the Philippines are
the provinces, cities, municipalities, and barangays. There shall be autonomous
regions in Muslim Mindanao and theCordilleras as hereinafter provided.

SECTION 15. There shall be created autonomous regions in Muslim Mindanao and in
the Cordilleras consisting of provinces, cities, municipalities, and geographical areas sharing
common and distinctive historical and cultural heritage, economic and social structures, and
other relevant characteristics within the framework of this Constitution and the
national sovereignty as well as territorial integrity of the Republic of
the Philippines.

The BJE is a far more powerful entity than the autonomous region recognized in the
Constitution

It is not merely an expanded version of the ARMM, the status of its relationship with the national
government being fundamentally different from that of the ARMM. Indeed, BJE is a state in all but name
as it meets the criteria of a state laid down in the Montevideo Convention,[154] namely,
a permanent population, a defined territory, a government, and a capacity to enter into relations with
other states.

Even assuming arguendo that the MOA-AD would not necessarily sever any portion of Philippine
territory, the spirit animating it which has betrayed itself by its use of the concept ofassociation runs
counter to the national sovereignty and territorial integrity of the Republic.

The defining concept underlying the relationship between the national government and
the BJE being itself contrary to the present Constitution, it is not surprising that many of the

specific provisions of the MOA-AD on the formation and powers of the BJE are in conflict with
the Constitution and the laws.

Article X, Section 18 of the Constitution provides that [t]he creation of the autonomous region shall be
effective when approved by a majority of the votes cast by the constituent units in a plebiscite called for
the purpose, provided that only provinces, cities, and geographic areas voting favorably in such
plebiscite shall be included in the autonomous region. (Emphasis supplied)
As reflected above, the BJE is more of a state than an autonomous region. But even assuming that it is
covered by the term autonomous region in the constitutional provision just quoted, the MOA-AD would still
be in conflict with it. Under paragraph 2(c) on TERRITORY in relation to 2(d) and 2(e), the present
geographic area of the ARMM and, in addition, the municipalities of Lanao del Norte which voted for
inclusion in the ARMM during the 2001 plebiscite Baloi, Munai, Nunungan, Pantar, Tagoloan and
Tangkal are automatically part of the BJE without need of another plebiscite, in contrast to the areas under
Categories A and B mentioned earlier in the overview. That the present components of the ARMM and the
above-mentioned municipalities voted for inclusion therein in 2001, however, does not render another
plebiscite unnecessary under the Constitution, precisely because what these areas voted for then was their
inclusion in the ARMM, notthe BJE.

The MOA-AD, moreover, would not

comply with Article X, Section 20 of
the Constitution

since that provision defines the powers of autonomous regions as follows:

SECTION 20. Within its territorial jurisdiction and subject to the provisions of this Constitution
and national laws, the organic act of autonomous regions shall provide for legislative powers
over:

(1) Administrative organization;

(2) Creation of sources of revenues;
(3) Ancestral domain and natural resources;
(4) Personal, family, and property relations;
(5) Regional urban and rural planning development;
(6) Economic, social, and tourism development;
(7) Educational policies;
(8) Preservation and development of the cultural heritage; and
(9) Such other matters as may be authorized by law for the promotion of the general welfare
of the people of the region. (Underscoring supplied)

Again on the premise that the BJE may be regarded as an autonomous region, the MOA-AD would require
an amendment that would expand the above-quoted provision. The mere passage of new legislation
pursuant to sub-paragraph No. 9 of said constitutional provision would not suffice, since any new law that
might vest in the BJE the powers found in the MOA-AD must, itself, comply with other provisions of the
Constitution. It would not do, for instance, to merely pass legislation vesting the BJE with treaty-making

power in order to accommodate paragraph 4 of the strand on RESOURCES which states: The BJE is free to
enter into any economic cooperation and trade relations with foreign countries: provided, however, that
such relationships and understandings do not include aggression against the Government of the Republic
of the Philippines x x x. Under our constitutional system, it is only the President who has that
power. Pimentel v. Executive Secretary[155]instructs:

In our system of government, the President, being the head of state, is regarded as the sole
organ and authority in external relations and is the country's sole representative
with foreign nations. As the chief architect of foreign policy, the President acts as the
country's mouthpiece with respect to international affairs. Hence, the President is vested
with the authority to deal with foreign states and governments, extend or withhold
recognition, maintain diplomatic relations, enter into treaties, and otherwise
transact the business of foreign relations. In the realm of treaty-making, the
President has the sole authority to negotiate with other states. (Emphasis and
underscoring supplied)

Article II, Section 22 of the Constitution must also be amended if the scheme envisioned in the
MOA-AD is to be effected. That constitutional provision states: The State recognizes and promotes the
rights
of indigenous
cultural
communities within
the
framework
of national
unity and
development. (Underscoring supplied) An associative arrangement does not uphold national unity.While
there may be a semblance of unity because of the associative ties between the BJE and the national
government, the act of placing a portion of Philippine territory in a status which, in international practice,
has generally been a preparation for independence, is certainly not conducive to national unity.

Besides being irreconcilable with the Constitution, the MOA-AD

is also inconsistent with prevailing statutory law, among
which are R.A. No. 9054 [156] or the Organic Act of the ARMM,
and the IPRA.[157]

Article X, Section 3 of the Organic Act of the ARMM is a bar to the adoption of the definition of
Bangsamoro people used in the MOA-AD. Paragraph 1 on CONCEPTS AND PRINCIPLESstates:

1. It is the birthright of all Moros and all Indigenous peoples of Mindanao to identify
themselves and be accepted as Bangsamoros. The Bangsamoro people refers to those
who are natives or original inhabitants of Mindanao and its adjacent
islands including Palawan and the Sulu archipelago at the time of conquest or colonization
of its descendants whether mixed or of full blood. Spouses and their descendants are
classified as Bangsamoro. The freedom of choice of the Indigenous people shall be
respected. (Emphasis and underscoring supplied)

This use of the term Bangsamoro sharply contrasts with that found in the Article X, Section 3 of the
Organic Act, which, rather than lumping together the identities of the Bangsamoro and other indigenous
peoples living in Mindanao, clearly distinguishes between Bangsamoro people and Tribal peoples,
as follows:

As used in this Organic Act, the phrase indigenous cultural community refers to Filipino
citizens residing in the autonomous region who are:

(a) Tribal peoples. These are citizens whose social, cultural and economic conditions
distinguish them from other sectors of the national community; and

(b) Bangsa Moro people. These are citizens who are believers in Islam and who have
retained some or all of their own social, economic, cultural, and political
institutions.

Respecting the IPRA, it lays down the prevailing procedure for the delineation and recognition of ancestral
domains. The MOA-ADs manner of delineating the ancestral domain of the Bangsamoro people is a clear
departure from that procedure. By paragraph 1 of TERRITORY, the Parties simply agree that, subject to the
delimitations in the agreed Schedules, [t]he Bangsamoro homeland and historic territory refer to the land
mass as well as the maritime, terrestrial, fluvial and alluvial domains, and the aerial domain, the
atmospheric space above it, embracing the Mindanao-Sulu-Palawan geographic region.

Chapter VIII of the IPRA, on the other hand, lays down a detailed procedure, as illustrated in the following
provisions thereof:

SECTION 52. Delineation Process. The identification and delineation of ancestral domains
shall be done in accordance with the following procedures:

xxxx

b) Petition for Delineation. The process of delineating a specific perimeter may be initiated
by the NCIP with the consent of the ICC/IP concerned, or through a Petition for Delineation
filed with the NCIP, by a majority of the members of the ICCs/IPs;

c) Delineation Proper. The official delineation of ancestral domain boundaries including

census of all community members therein, shall be immediately undertaken by the Ancestral
Domains Office upon filing of the application by the ICCs/IPs concerned. Delineation will be
done in coordination with the community concerned and shall at all times include genuine
involvement and participation by the members of the communities concerned;

d) Proof Required. Proof of Ancestral Domain Claims shall include the testimony of elders or
community under oath, and other documents directly or indirectly attesting to the
possession or occupation of the area since time immemorial by such ICCs/IPs in the concept
of owners which shall be any one (1) of the following authentic documents:

1) Written accounts of the ICCs/IPs customs and traditions;

2) Written accounts of the ICCs/IPs political structure and institution;

3) Pictures showing long term occupation such as those of old improvements, burial
grounds, sacred places and old villages;

4) Historical accounts, including pacts and agreements concerning boundaries entered

into by the ICCs/IPs concerned with other ICCs/IPs;

5) Survey plans and sketch maps;

6) Anthropological data;

7) Genealogical surveys;

8) Pictures and descriptive histories of traditional communal forests and hunting

grounds;

9) Pictures and descriptive histories of traditional landmarks such as mountains, rivers,

creeks, ridges, hills, terraces and the like; and

10) Write-ups of names and places derived from the native dialect of the community.

e) Preparation of Maps. On the basis of such investigation and the findings of fact based
thereon, the Ancestral Domains Office of the NCIP shall prepare a perimeter map, complete
with technical descriptions, and a description of the natural features and landmarks
embraced therein;

f) Report of Investigation and Other Documents. A complete copy of the preliminary census
and a report of investigation, shall be prepared by the Ancestral Domains Office of the NCIP;

g) Notice and Publication. A copy of each document, including a translation in the native
language of the ICCs/IPs concerned shall be posted in a prominent place therein for at least
fifteen (15) days. A copy of the document shall also be posted at the local, provincial and
regional offices of the NCIP, and shall be published in a newspaper of general circulation
once a week for two (2) consecutive weeks to allow other claimants to file opposition thereto
within fifteen (15) days from date of such publication: Provided, That in areas where no such
newspaper exists, broadcasting in a radio station will be a valid substitute: Provided, further,
That mere posting shall be deemed sufficient if both newspaper and radio station are not
available;

h) Endorsement to NCIP. Within fifteen (15) days from publication, and of the inspection
process, the Ancestral Domains Office shall prepare a report to the NCIP endorsing a
favorable action upon a claim that is deemed to have sufficient proof. However, if the proof
is deemed insufficient, the Ancestral Domains Office shall require the submission of
additional evidence: Provided, That the Ancestral Domains Office shall reject any claim that
is deemed patently false or fraudulent after inspection and verification: Provided, further,
That in case of rejection, the Ancestral Domains Office shall give the applicant due notice,
copy furnished all concerned, containing the grounds for denial. The denial shall be
appealable to the NCIP: Provided, furthermore, That in cases where there are conflicting
claims among ICCs/IPs on the boundaries of ancestral domain claims, the Ancestral Domains
Office shall cause the contending parties to meet and assist them in coming up with a
preliminary resolution of the conflict, without prejudice to its full adjudication according to
the section below.

xxxx
To remove all doubts about the irreconcilability of the MOA-AD with the present legal system, a
discussion of not only the Constitution and domestic statutes, but also of international law is in order, for

Article II, Section 2 of the Constitution states that the

Philippines adopts the generally accepted principles of
international law as part of the law of the land.

Applying this provision of the Constitution, the Court, in Mejoff v. Director of Prisons,[158] held that the
Universal Declaration of Human Rights is part of the law of the land on account of which it ordered the
release on bail of a detained alien of Russian descent whose deportation order had not been executed
even after two years. Similarly, the Court in Agustin v. Edu[159] applied the aforesaid constitutional provision
to the 1968 Vienna Convention on Road Signs and Signals.

International law has long recognized the right to self-determination of peoples, understood not merely as
the entire population of a State but also a portion thereof. In considering the question of whether the
people of Quebec had a right to unilaterally secede from Canada, the Canadian Supreme Court in
REFERENCE RE SECESSION OF QUEBEC [160] had occasion to acknowledge that the right of a people to selfdetermination is now so widely recognized in international conventions that the principle has acquired a
status beyond convention and is considered a general principle of international law.

Among the conventions referred to are the International Covenant on Civil and Political
Rights[161] and the International Covenant on Economic, Social and Cultural Rights [162] which state, in Article
1 of both covenants, that all peoples, by virtue of the right of self-determination, freely determine their
political status and freely pursue their economic, social, and cultural development.

The peoples right to self-determination should not, however, be understood as extending to a unilateral
right of secession. A distinction should be made between the right of internal and external selfdetermination. REFERENCE RE SECESSION OF QUEBEC is again instructive:

(ii) Scope of the Right to Self-determination

126. The recognized sources of international law establish that the right to selfdetermination
of
a
people
is
normally
fulfilled
through internal selfdetermination a peoples pursuit of its political, economic, social and cultural
development within the framework of an existing state. A right to external selfdetermination (which in this case potentially takes the form of the assertion of a
right to unilateral secession) arises in only the most extreme of cases and, even
then, under carefully defined circumstances. x x x

External self-determination can be defined as in the following statement from

the Declaration on Friendly Relations, supra, as

The establishment of a sovereign and independent State, the free association or

integration with an independent State or the emergence into any other political
status freely determined by a peopleconstitute modes of implementing the right of selfdetermination by that people. (Emphasis added)

127. The international law principle of self-determination has evolved within a

framework of respect for the territorial integrity of existing states. The various
international documents that support the existence of a peoples right to self-determination
also contain parallel statements supportive of the conclusion that the exercise of such a
right must be sufficiently limited to prevent threats to an existing states territorial integrity
or the stability of relations between sovereign states.

x x x x (Emphasis, italics and underscoring supplied)

The Canadian Court went on to discuss the exceptional cases in which the right to external selfdetermination can arise, namely, where a people is under colonial rule, is subject to foreign domination or
exploitation outside a colonial context, and less definitely but asserted by a number of commentators is
blocked from the meaningful exercise of its right to internal self-determination.The Court ultimately held
that the population of Quebec had no right to secession, as the same is not under colonial rule or foreign
domination, nor is it being deprived of the freedom to make political choices and pursue economic, social
and cultural development, citing that Quebec is equitably represented in legislative, executive and judicial
institutions within Canada, even occupying prominent positions therein.

The exceptional nature of the right of secession is further exemplified in the REPORT OF THE
INTERNATIONAL COMMITTEE OF JURISTS ON THE LEGAL ASPECTS OF THE AALANDISLANDS QUESTION.
[163]
There, Sweden presented to the Council of the League of Nations the question of whether the
inhabitants of the Aaland Islands should be authorized to determine by plebiscite if the archipelago should
remain under Finnish sovereignty or be incorporated in the kingdom of Sweden. The Council, before
resolving the question, appointed an International Committee composed of three jurists to submit an
opinion on the preliminary issue of whether the dispute should, based on international law, be entirely left
to the domestic jurisdiction of Finland. The Committee stated the rule as follows:

x x x [I]n the absence of express provisions in international treaties, the right of disposing
of national territory is essentially an attribute of the sovereignty of every
State. Positive International Law does not recognize the right of national groups,
as such, to separate themselves from the State of which they form part by the
simple expression of a wish, any more than it recognizes the right of other States to
claim such a separation. Generally speaking, the grant or refusal of the right to a
portion of its population of determining its own political fate by plebiscite or by
some other method, is, exclusively, an attribute of the sovereignty of every
State which is definitively constituted. A dispute between two States concerning such a
question, under normal conditions therefore, bears upon a question which International Law
leaves entirely to the domestic jurisdiction of one of the States concerned. Any other
solution would amount to an infringement of sovereign rights of a State and would involve
the risk of creating difficulties and a lack of stability which would not only be contrary to the
very idea embodied in term State, but would also endanger the interests of the international
community. If this right is not possessed by a large or small section of a nation, neither can it
be held by the State to which the national group wishes to be attached, nor by any other
State. (Emphasis and underscoring supplied)

The Committee held that the dispute concerning the Aaland Islands did not refer to a question which is left
by international law to the domestic jurisdiction of Finland, thereby applying the exception rather than the
rule elucidated above. Its ground for departing from the general rule, however, was a very narrow one,
namely, the Aaland Islands agitation originated at a time when Finland was undergoing drastic political
transformation. The internal situation of Finland was, according to the Committee, so abnormal that, for a
considerable time, the conditions required for the formation of a sovereign State did not exist. In the midst
of revolution, anarchy, and civil war, the legitimacy of the Finnish national government was disputed by a
large section of the people, and it had, in fact, been chased from the capital and forcibly prevented from
carrying out its duties. The armed camps and the police were divided into two opposing forces. In light of
these circumstances, Finland was not, during the relevant time period, a definitively constituted sovereign
state. The Committee, therefore, found that Finland did not possess the right to withhold from a portion of
its population the option to separate itself a right which sovereign nations generally have with respect to
their own populations.

Turning now to the more specific category of indigenous peoples, this term has been used, in scholarship
as well as international, regional, and state practices, to refer to groups with distinct cultures, histories,
and connections to land (spiritual and otherwise) that have been forcibly incorporated into a larger
governing society. These groups are regarded as indigenous since they are the living descendants of preinvasion inhabitants of lands now dominated by others. Otherwise stated, indigenous peoples, nations, or
communities are culturally distinctive groups that find themselves engulfed by settler societies born of the

forces of empire and conquest.[164] Examples of groups who have been regarded as indigenous peoples are
the Maori of New Zealand and the aboriginal peoples of Canada.

As with the broader category of peoples, indigenous peoples situated within states do not have a general
right to independence or secession from those states under international law, [165] but they do have rights
amounting to what was discussed above as the right to internal self-determination.

In a historic development last September 13, 2007, the UN General Assembly adopted the United Nations
Declaration on the Rights of Indigenous Peoples (UN DRIP) through General Assembly Resolution
61/295. The vote was 143 to 4, the Philippines being included among those in favor, and the four voting
against being Australia, Canada, New Zealand, and the U.S. The Declaration clearly recognized the right of
indigenous peoples to self-determination, encompassing the right to autonomy or self-government, to wit:

Article 3

Indigenous peoples have the right to self-determination. By virtue of that right they freely
determine their political status and freely pursue their economic, social and cultural
development.

Article 4

Indigenous peoples, in exercising their right to self-determination, have the right

to autonomy or self-government in matters relating to their internal and local
affairs, as well as ways and means for financing their autonomous functions.

Article 5

Indigenous peoples have the right to maintain and strengthen their distinct political, legal,
economic, social and cultural institutions, while retaining their right to participate fully, if
they so choose, in the political, economic, social and cultural life of the State.
Self-government, as used in international legal discourse pertaining to indigenous peoples, has been
understood as equivalent to internal self-determination. [166] The extent of self-determination provided for in
the UN DRIP is more particularly defined in its subsequent articles, some of which are quoted hereunder:
Article 8
1. Indigenous peoples and individuals have the right not to be subjected to forced
assimilation or destruction of their culture.
2. States shall provide effective mechanisms for prevention of, and redress for:
(a) Any action which has the aim or effect of depriving them of their integrity
as distinct peoples, or of their cultural values or ethnic identities;
(b) Any action which has the aim or effect of dispossessing them of their
lands, territories or resources;
(c) Any form of forced population transfer which has the aim or effect of
violating or undermining any of their rights;
(d) Any form of forced assimilation or integration;

(e) Any form of propaganda designed to promote or incite racial or ethnic

discrimination directed against them.
Article 21

1. Indigenous peoples have the right, without discrimination, to the improvement of their
economic and social conditions, including, inter alia, in the areas of education,
employment, vocational training and retraining, housing, sanitation, health and social
security.
2. States shall take effective measures and, where appropriate, special measures to ensure
continuing improvement of their economic and social conditions. Particular attention
shall be paid to the rights and special needs of indigenous elders, women, youth,
children and persons with disabilities.

Article 26

1. Indigenous peoples have the right to the lands, territories and resources which
they have traditionally owned, occupied or otherwise used or acquired.
2. Indigenous peoples have the right to own, use, develop and control the lands, territories
and resources that they possess by reason of traditional ownership or other traditional
occupation or use, as well as those which they have otherwise acquired.
3. States shall give legal recognition and protection to these lands, territories and resources.
Such recognition shall be conducted with due respect to the customs, traditions and
land tenure systems of the indigenous peoples concerned.

Article 30

1. Military activities shall not take place in the lands or territories of indigenous peoples,
unless justified by a relevant public interest or otherwise freely agreed with or
requested by the indigenous peoples concerned.

2. States shall undertake effective consultations with the indigenous peoples concerned,
through appropriate procedures and in particular through their representative
institutions, prior to using their lands or territories for military activities.

Article 32

1. Indigenous peoples have the right to determine and develop priorities and strategies for
the development or use of their lands or territories and other resources.

2. States shall consult and cooperate in good faith with the indigenous peoples concerned
through their own representative institutions in order to obtain their free and informed
consent prior to the approval of any project affecting their lands or territories and other
resources, particularly in connection with the development, utilization or exploitation of
mineral, water or other resources.

3. States shall provide effective mechanisms for just and fair redress for any such activities,
and appropriate measures shall be taken to mitigate adverse environmental, economic,
social, cultural or spiritual impact.

Article 37

1. Indigenous peoples have the right to the recognition, observance and enforcement of
treaties, agreements and other constructive arrangements concluded with States or
their successors and to have States honour and respect such treaties, agreements and
other constructive arrangements.

2. Nothing in this Declaration may be interpreted as diminishing or eliminating the rights of

indigenous peoples contained in treaties, agreements and other constructive
arrangements.

Article 38

States in consultation and cooperation with indigenous peoples, shall take the appropriate
measures, including legislative measures, to achieve the ends of this Declaration.

Assuming that the UN DRIP, like the Universal Declaration on Human Rights, must now be regarded as
embodying customary international law a question which the Court need not definitively resolve here the
obligations enumerated therein do not strictly require the Republic to grant the Bangsamoro people,
through the instrumentality of the BJE, the particular rights and powers provided for in the MOA-AD. Even
the more specific provisions of the UN DRIP are general in scope, allowing for flexibility in its application by
the different States.
There is, for instance, no requirement in the UN DRIP that States now guarantee indigenous peoples
their own police and internal security force. Indeed, Article 8 presupposes that it is the State which will
provide protection for indigenous peoples against acts like the forced dispossession of their lands a
function that is normally performed by police officers. If the protection of a right so essential to indigenous
peoples identity is acknowledged to be the responsibility of the State, then surely the protection of rights
less significant to them as such peoples would also be the duty of States. Nor is there in the UN DRIP an
acknowledgement of the right of indigenous peoples to the aerial domain and atmospheric space. What it
upholds, in Article 26 thereof, is the right of indigenous peoples to the lands, territories and resources
which they have traditionally owned, occupied or otherwise used or acquired.

Moreover, the UN DRIP, while upholding the right of indigenous peoples to autonomy, does not obligate
States to grant indigenous peoples the near-independent status of an associated state. All the rights
recognized in that document are qualified in Article 46 as follows:

1. Nothing in this Declaration may be interpreted as implying for any State, people,
group or person any right to engage in any activity or to perform any act contrary to
the Charter of the United Nations orconstrued as authorizing or encouraging any
action which would dismember or impair, totally or in part, the territorial
integrity or political unity of sovereign and independent States.

Even if the UN DRIP were considered as part of the law of the land pursuant to Article II, Section 2 of the
Constitution, it would not suffice to uphold the validity of the MOA-AD so as to render its compliance with
other laws unnecessary.

It is, therefore, clear that the MOA-AD contains numerous provisions that cannot be reconciled
with the Constitution and the laws as presently worded. Respondents proffer, however, that the
signing of the MOA-AD alone would not have entailed any violation of law or grave abuse of discretion on
their part, precisely because it stipulates that the provisions thereof inconsistent with the laws shall not
take effect until these laws are amended. They cite paragraph 7 of the MOA-AD strand on GOVERNANCE
quoted earlier, but which is reproduced below for convenience:

7. The Parties agree that the mechanisms and modalities for the actual
implementation of this MOA-AD shall be spelt out in the Comprehensive Compact to
mutually take such steps to enable it to occur effectively.
Any provisions of the MOA-AD requiring amendments to the existing legal framework shall
come into force upon signing of a Comprehensive Compact and upon effecting the
necessary changes to the legal framework with due regard to non derogation of prior
agreements and within the stipulated timeframe to be contained in the Comprehensive
Compact.

Indeed, the foregoing stipulation keeps many controversial provisions of the MOA-AD from coming
into force until the necessary changes to the legal framework are effected. While the word Constitution
is not mentioned in the provision now under consideration or anywhere else in the MOA-AD,
the term legal framework is certainly broad enough to include the Constitution.

Notwithstanding the suspensive clause, however, respondents, by their mere act of incorporating in
the MOA-AD the provisions thereof regarding the associative relationship between the BJE and the Central
Government, have already violated the Memorandum of Instructions From The President dated March 1,
2001, which states that the negotiations shall be conducted in accordance with x x x the principles of the
sovereignty and territorial integrity of the Republic of the Philippines. (Emphasis supplied) Establishing
an associative relationship between the BJE and the Central Government is, for the reasons already
discussed, a preparation for independence, or worse, an implicit acknowledgment of an independent status
already prevailing.

Even apart from the above-mentioned Memorandum, however, the MOA-AD is defective because
the suspensive clause is invalid, as discussed below.

The authority of the GRP Peace Negotiating Panel to negotiate with the MILF is founded on E.O. No. 3,
Section 5(c), which states that there shall be established Government Peace Negotiating Panels for
negotiations with different rebel groups to be appointed by the President as her official emissaries to
conduct negotiations, dialogues, and face-to-face discussions with rebel groups. These negotiating panels
are to report to the President, through the PAPP on the conduct and progress of the negotiations.

It bears noting that the GRP Peace Panel, in exploring lasting solutions to the Moro Problem through
its negotiations with the MILF, was not restricted by E.O. No. 3 only to those options available under the
laws as they presently stand. One of the components of a comprehensive peace process, which E.O. No. 3
collectively refers to as the Paths to Peace, is the pursuit of social, economic, and political reforms which
may require new legislation or even constitutional amendments. Sec. 4(a) of E.O. No. 3, which reiterates
Section 3(a), of E.O. No. 125,[167] states:

SECTION 4. The Six Paths to Peace. The components of the comprehensive peace process
comprise the processes known as the Paths to Peace. These component processes are
interrelated and not mutually exclusive, and must therefore be pursued simultaneously in a
coordinated and integrated fashion. They shall include, but may not be limited to, the
following:

a. PURSUIT OF SOCIAL, ECONOMIC AND POLITICAL REFORMS. This component involves

the vigorous implementation of various policies, reforms, programs and
projects aimed at addressing the root causes of internal armed conflicts and
social unrest. This may require administrative action, new legislation or even
constitutional amendments.

x x x x (Emphasis supplied)

The MOA-AD, therefore, may reasonably be perceived as an attempt of respondents to address,

pursuant to this provision of E.O. No. 3, the root causes of the armed conflict in Mindanao. The E.O.
authorized them to think outside the box, so to speak. Hence, they negotiated and were set on signing the
MOA-AD that included various social, economic, and political reforms which cannot, however, all be
accommodated within the present legal framework, and which thus would require new legislation and
constitutional amendments.

The inquiry on the legality of the suspensive clause, however, cannot stop here, because it must be asked

whether the President herself may exercise the power

delegated to the GRP Peace Panel under E.O. No. 3, Sec.
4(a).

The President cannot delegate a power that she herself does not possess. May the President, in the
course of peace negotiations, agree to pursue reforms that would require new legislation and constitutional
amendments, or should the reforms be restricted only to those solutions which the present laws allow? The
answer to this question requires a discussion of

the extent of the Presidents power to conduct peace

negotiations.

That the authority of the President to conduct peace negotiations with rebel groups is not explicitly
mentioned in the Constitution does not mean that she has no such authority. In Sanlakas v. Executive
Secretary,[168] in issue was the authority of the President to declare a state of rebellion an authority which is
not expressly provided for in the Constitution. The Court held thus:

In her ponencia in Marcos v. Manglapus, Justice Cortes put her thesis into
jurisprudence. There, the Court, by a slim 8-7 margin, upheld the President's power to forbid
the return of her exiled predecessor. The rationale for the majority's ruling rested on the
President's

. . . 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.

Thus, the President's authority to declare a state of rebellion springs in the main
from her powers as chief executive and, at the same time, draws strength from
her Commander-in-Chief powers. x x x(Emphasis and underscoring supplied)

Similarly, the Presidents power to conduct peace negotiations is implicitly included in her powers as
Chief Executive and Commander-in-Chief. As Chief Executive, the President has the general responsibility
to promote public peace, and as Commander-in-Chief, she has the more specific duty to prevent and
suppress rebellion and lawless violence.[169]

As the experience of nations which have similarly gone through internal armed conflict will show, however,
peace is rarely attained by simply pursuing a military solution. Oftentimes, changes as far-reaching as a
fundamental reconfiguration of the nations constitutional structure is required. The observations of Dr.
Kirsti Samuels are enlightening, to wit:

x x x [T]he fact remains that a successful political and governance transition must form
the core of any post-conflict peace-building mission. As we have observed
in Liberia and Haiti over the last ten years, conflict cessation without modification of the
political environment, even where state-building is undertaken through technical electoral
assistance and institution- or capacity-building, is unlikely to succeed. On average, more
than 50 percent of states emerging from conflict return to conflict. Moreover, a substantial
proportion of transitions have resulted in weak or limited democracies.

The design of a constitution and its constitution-making process can play an important
role in the political and governance transition. Constitution-making after conflict is an
opportunity to create a common vision of the future of a state and a road map on how to get
there. The constitution can be partly a peace agreement and partly a framework setting up
the rules by which the new democracy will operate.[170]
In the same vein, Professor Christine Bell, in her article on the nature and legal status of peace
agreements, observed that the typical way that peace agreements establish or confirm mechanisms for
demilitarization and demobilization is by linking them to new constitutional structures addressing
governance, elections, and legal and human rights institutions. [171]

In the Philippine experience, the link between peace agreements and constitution-making has been
recognized by no less than the framers of the Constitution. Behind the provisions of the Constitution on
autonomous regions[172] is the framers intention to implement a particular peace agreement, namely, the
Tripoli Agreement of 1976 between the GRP and the MNLF, signed by then Undersecretary of National
Defense Carmelo Z. Barbero and then MNLF Chairman Nur Misuari.

MR. ROMULO. There are other speakers; so, although I have some more questions, I
will reserve my right to ask them if they are not covered by the other speakers. I have only
two questions.
I heard one of the Commissioners say that local autonomy already exists in
the Muslim region; it is working very well; it has, in fact, diminished a great deal of the
problems. So, my question is: since that already exists, why do we have to go into
something new?

MR. OPLE. May I answer that on behalf of Chairman Nolledo. Commissioner Yusup
Abubakar is right that certain definite steps have been taken to implement the
provisions of the Tripoli Agreement with respect to an autonomous region
in Mindanao. This is a good first step, but there is no question that this is merely a
partial response to the Tripoli Agreement itself and to the fuller standard of
regional autonomy contemplated in that agreement, and now by state policy.
[173]
(Emphasis supplied)

The constitutional provisions on autonomy and the statutes enacted pursuant to them have, to the credit
of their drafters, been partly successful. Nonetheless, the Filipino people are still faced with the reality of
an on-going conflict between the Government and the MILF. If the President is to be expected to find
means for bringing this conflict to an end and to achieve lasting peace inMindanao, then she must be
given the leeway to explore, in the course of peace negotiations, solutions that may require changes to the
Constitution for their implementation. Being uniquely vested with the power to conduct peace negotiations
with rebel groups, the President is in a singular position to know the precise nature of their grievances
which, if resolved, may bring an end to hostilities.

The President may not, of course, unilaterally implement the solutions that she considers viable,
but she may not be prevented from submitting them as recommendations to Congress, which could then, if
it is minded, act upon them pursuant to the legal procedures for constitutional amendment and revision. In
particular, Congress would have the option, pursuant to Article XVII, Sections 1 and 3 of the Constitution,
to propose the recommended amendments or revision to the people, call a constitutional convention, or
submit to the electorate the question of calling such a convention.

While the President does not possess constituent powers as those powers may be exercised only by
Congress, a Constitutional Convention, or the people through initiative and referendum she may submit
proposals for constitutional change to Congress in a manner that does not involve the arrogation of
constituent powers.

In Sanidad v. COMELEC,[174] in issue was the legality of then President Marcos act of directly submitting
proposals for constitutional amendments to a referendum, bypassing the interim National Assembly which
was the body vested by the 1973 Constitution with the power to propose such amendments. President
Marcos, it will be recalled, never convened the interim National Assembly.The majority upheld the
Presidents act, holding that the urges of absolute necessity compelled the President as the agent of the
people to act as he did, there being no interim National Assembly to propose constitutional
amendments. Against this ruling, Justices Teehankee and Muoz Palma vigorously dissented. The Courts
concern at present, however, is not with regard to the point on which it was then divided in that
controversial case, but on that which was not disputed by either side.

Justice Teehankees dissent,[175] in particular, bears noting. While he disagreed that the President
may directly submit proposed constitutional amendments to a referendum, implicit in his opinion is a
recognition that he would have upheld the Presidents action along with the majority had the President
convened the interim National Assembly and coursed his proposals through it. Thus Justice Teehankee
opined:

Since the Constitution provides for the organization of the essential departments of
government, defines and delimits the powers of each and prescribes the manner of the
exercise of such powers, and the constituent power has not been granted to but has been
withheld from the President or Prime Minister, it follows that the Presidents questioned
decrees proposing and submitting constitutional amendments directly to the
people(without the intervention of the interim National Assembly in whom the
power is expressly vested) are devoid of constitutional and legal basis. [176] (Emphasis
supplied)

From the foregoing discussion, the principle may be inferred that the President in the course of conducting
peace negotiations may validly consider implementing even those policies that require changes to the
Constitution, but she may not unilaterally implement them without the intervention of Congress, or
act in any way as if the assent of that body were assumed as a certainty.

Since, under the present Constitution, the people also have the power to directly propose amendments
through initiative and referendum, the President may also submit her recommendations to the people, not
as a formal proposal to be voted on in a plebiscite similar to what President Marcos did in Sanidad, but for

their independent consideration of whether these recommendations merit being formally proposed through
initiative.

These recommendations, however, may amount to nothing more than the Presidents suggestions to the
people, for any further involvement in the process of initiative by the Chief Executive may vitiate its
character as a genuine peoples initiative. The only initiative recognized by the Constitution is that which
truly proceeds from the people. As the Court stated in Lambino v. COMELEC:[177]

The Lambino Group claims that their initiative is the people's voice. However, the
Lambino Group unabashedly states in ULAP Resolution No. 2006-02, in the verification of
their petition with the COMELEC, that ULAP maintains its unqualified support to the agenda
of Her Excellency President Gloria Macapagal-Arroyo for constitutional reforms. The Lambino
Group thus admits that their people's initiative is anunqualified support to the
agenda of the incumbent President to change the Constitution. This forewarns the Court to
be wary of incantations of people's voice or sovereign will in the present initiative.
It will be observed that the President has authority, as stated in her oath of office, [178] only
to preserve and defend the Constitution. Such presidential power does not, however, extend to allowing
her to change the Constitution, but simply to recommend proposed amendments or revision. As long as
she limits herself to recommending these changes and submits to the proper procedure for constitutional
amendments and revision, her mere recommendation need not be construed as an unconstitutional act.

The
foregoing
discussion
focused
on
the
Presidents
authority
to
propose constitutional amendments, since her authority to propose new legislation is not in
controversy. It has been an accepted practice for Presidents in this jurisdiction to propose new
legislation. One of the more prominent instances the practice is usually done is in the yearly State of the
Nation Address of the President to Congress. Moreover, the annual general appropriations bill has always
been based on the budget prepared by the President, which for all intents and purposes is a proposal for
new legislation coming from the President.[179]

The suspensive clause in the MOA-AD viewed in light of

the above-discussed standards

Given the limited nature of the Presidents authority to propose constitutional amendments,
she cannot guarantee to any third party that the required amendments will eventually be put in place,
nor even be submitted to a plebiscite. The most she could do is submit these proposals as
recommendations either to Congress or the people, in whom constituent powers are vested.

Paragraph 7 on Governance of the MOA-AD states, however, that all provisions thereof which cannot
be reconciled with the present Constitution and laws shall come into force upon signing of a
Comprehensive Compact and upon effecting the necessary changes to the legal framework. This
stipulation does not bear the marks of a suspensive condition defined in civil law as a future
anduncertain event but of a term. It is not a question of whether the necessary changes to the legal
framework will be effected, but when. That there is no uncertainty being contemplated is plain from what
follows, for the paragraph goes on to state that the contemplated changes shall be with due regard to non
derogation of prior agreements and within the stipulated timeframe to be contained in the Comprehensive
Compact.

Pursuant to this stipulation, therefore, it is mandatory for the GRP to effect the changes to the
legal framework contemplated in the MOA-AD which changes would include constitutional amendments, as
discussed earlier. It bears noting that,

By the time these changes are put in place, the MOA-AD

itself would be counted among the prior agreements
from which there could be no derogation.

What remains for discussion in the Comprehensive Compact would merely be the implementing details for
these consensus points and, notably, the deadline for effecting the contemplated changes to the legal
framework.

Plainly, stipulation-paragraph 7 on GOVERNANCE is inconsistent with the limits of the

Presidents authority to propose constitutional amendments, it being a virtual guarantee that the
Constitution and the laws of the Republic of the Philippines will certainly be adjusted to conform to all the
consensus points found in the MOA-AD. Hence, it must be struck down asunconstitutional.

A comparison between the suspensive clause of the MOA-AD with a similar provision appearing in
the 1996 final peace agreement between the MNLF and the GRP is most instructive.

As a backdrop, the parties to the 1996 Agreement stipulated that it would be implemented in two
phases. Phase I covered a three-year transitional period involving the putting up of new administrative
structures through Executive Order, such as the Special Zone of Peace and Development (SZOPAD) and the
Southern Philippines Council for Peace and Development (SPCPD), whilePhase II covered the
establishment of the new regional autonomous government through amendment or repeal of R.A. No.
6734, which was then the Organic Act of the ARMM.

The stipulations on Phase II consisted of specific agreements on the structure of the expanded
autonomous region envisioned by the parties. To that extent, they are similar to the provisions of the MOAAD. There is, however, a crucial difference between the two agreements. While the MOA-AD virtually
guarantees that the necessary changes to the legal framework will be put in place , the GRPMNLF final peace agreement states thus: Accordingly, these provisions [on Phase II] shall
be recommended by the GRP to Congress for incorporation in the amendatory or repealing law.

Concerns have been raised that the MOA-AD would have given rise to a binding international law obligation
on the part of the Philippines to change its Constitution in conformity thereto, on the ground that it may be
considered either as a binding agreement under international law, or a unilateral declaration of the
Philippine government to the international community that it would grant to the Bangsamoro people all the
concessions therein stated. Neither ground finds sufficient support in international law, however.
The MOA-AD, as earlier mentioned in the overview thereof, would have included foreign dignitaries
as signatories. In addition, representatives of other nations were invited to witness its signing in Kuala
Lumpur. These circumstances readily lead one to surmise that the MOA-AD would have had the status of a
binding international agreement had it been signed. An examination of the prevailing principles in
international law, however, leads to the contrary conclusion.

The Decision on CHALLENGE TO JURISDICTION: LOM ACCORD AMNESTY [180] (the Lom Accord case) of
the Special Court of Sierra Leone is enlightening. The Lom Accord was a peace agreement signed on July 7,
1999 between the Government of Sierra Leone and the Revolutionary United Front (RUF), a rebel group
with which the Sierra Leone Government had been in armed conflict for around eight years at the time of
signing. There were non-contracting signatories to the agreement, among which were the Government of
the Togolese Republic, the Economic Community of West African States, and the UN.

On January 16, 2002, after a successful negotiation between the UN Secretary-General and the
Sierra Leone Government, another agreement was entered into by the UN and that Government whereby
the Special Court of Sierra Leone was established. The sole purpose of the Special Court, an international
court, was to try persons who bore the greatest responsibility for serious violations of international

humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since November 30,
1996.

Among the stipulations of the Lom Accord was a provision for the full pardon of the members of the
RUF with respect to anything done by them in pursuit of their objectives as members of that organization
since the conflict began.

In the Lom Accord case, the Defence argued that the Accord created an internationally
binding obligation not to prosecute the beneficiaries of the amnesty provided therein, citing, among other
things, the participation of foreign dignitaries and international organizations in the finalization of that
agreement. The Special Court, however, rejected this argument, ruling that the Lome Accord is not a
treaty and that it can only create binding obligations and rights between the parties in municipal law, not
in international law. Hence, the Special Court held, it is ineffective in depriving an international court like it
of jurisdiction.

37. In regard to the nature of a negotiated settlement of an internal armed conflict it is

easy to assume and to argue with some degree of plausibility, as Defence
counsel for the defendants seem to have done, that the mere fact that in
addition to the parties to the conflict, the document formalizing the
settlement is signed by foreign heads of state or their representatives and
representatives of international organizations, means the agreement of the
parties is internationalized so as to create obligations in international law.

xxxx

40. Almost every conflict resolution will involve the parties to the conflict and the mediator
or facilitator of the settlement, or persons or bodies under whose auspices the
settlement took place but who are not at all parties to the conflict, are not contracting
parties and who do not claim any obligation from the contracting parties or incur any
obligation from the settlement.

41. In this case, the parties to the conflict are the lawful authority of the State and
the RUF which has no status of statehood and is to all intents and purposes a
faction within the state. The non-contracting signatories of the Lom
Agreement were moral guarantors of the principle that, in the terms of
Article XXXIV of the Agreement, this peace agreement is implemented with
integrity and in good faith by both parties. The moral guarantors assumed no
legal obligation. It is recalled that the UN by its representative appended,
presumably for avoidance of doubt, an understanding of the extent of the agreement
to be implemented as not including certain international crimes.

42. An international agreement in the nature of a treaty must create rights and obligations
regulated by international law so that a breach of its terms will be a breach determined
under international law which will also provide principle means of enforcement. The
Lom Agreement created neither rights nor obligations capable of being
regulated by international law. An agreement such as the Lom Agreement
which brings to an end an internal armed conflict no doubt creates a factual
situation of restoration of peace that the international community acting
through the Security Council may take note of. That, however, will not
convert it to an international agreement which creates an obligation
enforceable in international, as distinguished from municipal, law. A breach of
the terms of such a peace agreement resulting in resumption of internal armed conflict
or creating a threat to peace in the determination of the Security Council may indicate
a reversal of the factual situation of peace to be visited with possible legal
consequences arising from the new situation of conflict created. Such consequences
such as action by the Security Council pursuant to Chapter VII arise from the situation
and not from the agreement, nor from the obligation imposed by it. Such action cannot

be regarded as a remedy for the breach. A peace agreement which settles

an internal armed conflict cannot be ascribed the same status as one which
settles an international armed conflict which, essentially, must be between
two or more warring States. The Lom Agreement cannot be characterised as
an international instrument. x x x (Emphasis, italicsand underscoring supplied)

Similarly, that the MOA-AD would have been signed by representatives of States and international
organizations not parties to the Agreement would not have sufficed to vest in it a binding character under
international law.

In another vein, concern has been raised that the MOA-AD would amount to a unilateral declaration
of the Philippine State, binding under international law, that it would comply with all the stipulations stated
therein, with the result that it would have to amend its Constitution accordingly regardless of the true will
of the people. Cited as authority for this view is Australia v. France,[181]also known as the Nuclear Tests
Case, decided by the International Court of Justice (ICJ).

In the Nuclear Tests Case, Australia challenged before the ICJ the legality of Frances nuclear tests in
the South Pacific. France refused to appear in the case, but public statements from its President, and
similar statements from other French officials including its Minister of Defence, that its 1974 series of
atmospheric tests would be its last, persuaded the ICJ to dismiss the case. [182]Those statements, the ICJ
held, amounted to a legal undertaking addressed to the international community, which required no
acceptance from other States for it to become effective.

Essential to the ICJ ruling is its finding that the French government intended to be bound to the
international community in issuing its public statements, viz:

43. It is well recognized that declarations made by way of unilateral acts, concerning legal or
factual situations, may have the effect of creating legal obligations. Declarations of this
kind may be, and often are, very specific. When it is the intention of the State
making the declaration that it should become bound according to its
terms, that intention confers on the declaration the character of a legal
undertaking, the State being thenceforth legally required to follow a course
of conduct consistent with the declaration. An undertaking of this kind, if given
publicly, and with an intent to be bound, even though not made within the context of
international negotiations, is binding. In these circumstances, nothing in the nature of a
quid pro quo nor any subsequent acceptance of the declaration, nor even any reply or
reaction from other States, is required for the declaration to take effect, since such a
requirement would be inconsistent with the strictly unilateral nature of the juridical act
by which the pronouncement by the State was made.

44. Of course, not all unilateral acts imply obligation; but a State may choose to
take up a certain position in relation to a particular matter with the intention
of being boundthe intention is to be ascertained by interpretation of the
act. When States make statements by which their freedom of action is to be limited, a
restrictive interpretation is called for.

xxxx

51. In announcing that the 1974 series of atmospheric tests would be the last, the
French Government conveyed to the world at large, including the Applicant,
its intention effectively to terminate these tests. It was bound to assume
that other States might take note of these statements and rely on their being
effective. The validity of these statements and their legal consequences must
be considered within the general framework of the security of international

intercourse, and the confidence and trust which are so essential in the relations
among States. It is from the actual substance of these statements, and from
the circumstances attending their making, that the legal implications of the
unilateral act must be deduced. The objects of these statements are clear
and they were addressed to the international community as a whole, and the
Court holds that they constitute an undertaking possessing legal effect. The
Court considers *270 that the President of the Republic, in deciding upon the effective
cessation of atmospheric tests, gave an undertaking to the international community to
which his words were addressed. x x x (Emphasis and underscoring supplied)

As gathered from the above-quoted ruling of the ICJ, public statements of a state representative may be
construed as a unilateral declaration only when the following conditions are present: the statements were
clearly addressed to the international community, the state intended to be bound to that community by its
statements, and that not to give legal effect to those statements would be detrimental to the security of
international intercourse. Plainly, unilateral declarations arise only in peculiar circumstances.

The limited applicability of the Nuclear Tests Case ruling was recognized in a later case decided by the ICJ
entitled Burkina Faso v. Mali,[183] also known as the Case Concerning the Frontier Dispute. The public
declaration subject of that case was a statement made by the President of Mali, in an interview by a
foreign press agency, that Mali would abide by the decision to be issued by a commission of the
Organization of African Unity on a frontier dispute then pending between Mali and Burkina Faso.
Unlike in the Nuclear Tests Case, the ICJ held that the statement of Malis President was not a
unilateral act with legal implications. It clarified that its ruling in the Nuclear Tests case rested on the
peculiar circumstances surrounding the French declaration subject thereof, to wit:

40. In order to assess the intentions of the author of a unilateral act, account must be taken
of all the factual circumstances in which the act occurred. For example, in the Nuclear
Tests cases, the Court took the view that since the applicant States were not
the only ones concerned at the possible continuance of atmospheric testing
by the French Government, that Government's unilateral declarations had
conveyed to the world at large, including the Applicant, its intention
effectively to terminate these tests (I.C.J. Reports 1974, p. 269, para. 51; p. 474,
para. 53). In the particular circumstances of those cases, the French
Government could not express an intention to be bound otherwise than by
unilateral declarations. It is difficult to see how it could have accepted the
terms of a negotiated solution with each of the applicants without thereby
jeopardizing its contention that its conduct was lawful. The circumstances of
the present case are radically different. Here, there was nothing to hinder
the Parties from manifesting an intention to accept the binding character of
the conclusions of the Organization of African Unity Mediation Commission by
the normal method: a formal agreement on the basis of reciprocity. Since no
agreement of this kind was concluded between the Parties, the Chamber finds that
there are no grounds to interpret the declaration made by Mali's head of State on 11
April 1975as a unilateral act with legal implications in regard to the present case.
(Emphasis and underscoring supplied)

Assessing the MOA-AD in light of the above criteria, it would not have amounted to a unilateral
declaration on the part of the Philippine State to the international community. The Philippine panel did not
draft the same with the clear intention of being bound thereby to the international community as a whole
or to any State, but only to the MILF. While there were States and international organizations involved, one
way or another, in the negotiation and projected signing of the MOA-AD, they participated merely as
witnesses or, in the case of Malaysia, as facilitator. As held in the Lom Accord case, the mere fact that in
addition to the parties to the conflict, the peace settlement is signed by representatives of states and
international organizations does not mean that the agreement is internationalized so as to create
obligations in international law.

Since the commitments in the MOA-AD were not addressed to States, not to give legal effect to
such commitments would not be detrimental to the security of international intercourse to the trust and
confidence essential in the relations among States.

In one important respect, the circumstances surrounding the MOA-AD are closer to that of Burkina
Faso wherein, as already discussed, the Mali Presidents statement was not held to be a binding unilateral
declaration by the ICJ. As in that case, there was also nothing to hinder the Philippine panel, had it really
been its intention to be bound to other States, to manifest that intention by formal agreement. Here, that
formal agreement would have come about by the inclusion in the MOA-AD of a clear commitment to be
legally bound to the international community, not just the MILF, and by an equally clear indication that the
signatures of the participating states-representatives would constitute an acceptance of that
commitment. Entering into such a formal agreement would not have resulted in a loss of face for the
Philippine government before the international community, which was one of the difficulties that prevented
the French Government from entering into a formal agreement with other countries. That the Philippine
panel did not enter into such a formal agreement suggests that it had no intention to be bound to the
international community. On that ground, the MOA-AD may not be considered a unilateral declaration
under international law.

The MOA-AD not being a document that can bind the Philippines under international law notwithstanding,
respondents almost consummated act of guaranteeing amendments to the legal framework is, by
itself, sufficient to constitute grave abuse of discretion. The grave abuse lies not in the fact that
they considered, as a solution to the Moro Problem, the creation of a state within a state, but in their
brazen willingness to guarantee that Congress and the sovereign Filipino people would give
their imprimatur to their solution. Upholding such an act would amount to authorizing a usurpation of
the constituent powers vested only in Congress, a Constitutional Convention, or the people themselves
through the process of initiative, for the only way that the Executive can ensure the outcome of the
amendment process is through an undue influence or interference with that process.

The sovereign people may, if it so desired, go to the extent of giving up a portion of its own territory
to the Moros for the sake of peace, for it can change the Constitution in any it wants, so long as the change
is not inconsistent with what, in international law, is known as Jus Cogens.[184] Respondents, however, may
not preempt it in that decision.

SUMMARY

The petitions are ripe for adjudication. The failure of respondents to consult the local government
units or communities affected constitutes a departure by respondents from their mandate under E.O. No.
3. Moreover, respondents exceeded their authority by the mere act of guaranteeing amendments to the
Constitution. Any alleged violation of the Constitution by any branch of government is a proper matter for
judicial review.

As the petitions involve constitutional issues which are of paramount public interest or of transcendental
importance, the Court grants the petitioners, petitioners-in-intervention and intervening respondents the
requisite locus standi in keeping with the liberal stance adopted in David v. Macapagal-Arroyo.

Contrary to the assertion of respondents that the non-signing of the MOA-AD and the eventual dissolution
of the GRP Peace Panel mooted the present petitions, the Court finds that the present petitions provide an
exception to the moot and academic principle in view of (a) the grave violation of the Constitution
involved; (b) the exceptional character of the situation and paramount public interest; (c) the need to
formulate controlling principles to guide the bench, the bar, and the public; and (d) the fact that the case is
capable of repetition yet evading review.

The MOA-AD is a significant part of a series of agreements necessary to carry out the GRP-MILF Tripoli
Agreement on Peace signed by the government and the MILF back in June 2001. Hence, the present MOAAD can be renegotiated or another one drawn up that could contain similar or significantly dissimilar
provisions compared to the original.

The Court, however, finds that the prayers for mandamus have been rendered moot in view of the
respondents action in providing the Court and the petitioners with the official copy of the final draft of the
MOA-AD and its annexes.

The peoples right to information on matters of public concern under Sec. 7, Article III of the Constitution is
in splendid symmetry with the state policy of full public disclosure of all its transactions involving public
interest under Sec. 28, Article II of the Constitution. The right to information guarantees the right of the
people to demand information, while Section 28 recognizes the duty of officialdom to give information
even if nobody demands. The complete and effective exercise of the right to information necessitates that
its complementary provision on public disclosure derive the same self-executory nature, subject only to
reasonable safeguards or limitations as may be provided by law.

The contents of the MOA-AD is a matter of paramount public concern involving public interest in the
highest order. In declaring that the right to information contemplates steps and negotiations leading to the
consummation of the contract, jurisprudence finds no distinction as to the executory nature or commercial
character of the agreement.
An essential element of these twin freedoms is to keep a continuing dialogue or process of
communication between the government and the people. Corollary to these twin rights is the design for
feedback mechanisms. The right to public consultation was envisioned to be a species of these public
rights.

At least three pertinent laws animate these constitutional imperatives and justify the exercise of the
peoples right to be consulted on relevant matters relating to the peace agenda.

One, E.O. No. 3 itself is replete with mechanics for continuing consultations on both national and local
levels and for a principal forum for consensus-building. In fact, it is the duty of the Presidential Adviser on
the Peace Process to conduct regular dialogues to seek relevant information, comments, advice, and
recommendations from peace partners and concerned sectors of society.

Two, Republic Act No. 7160 or the Local Government Code of 1991 requires all national offices to conduct
consultations before any project or program critical to the environment and human ecology including those
that may call for the eviction of a particular group of people residing in such locality, is implemented
therein. The MOA-AD is one peculiar program that unequivocally and unilaterally vests ownership of a vast
territory to the Bangsamoro people, which could pervasively and drastically result to the diaspora or
displacement of a great number of inhabitants from their total environment.

Three, Republic Act No. 8371 or the Indigenous Peoples Rights Act of 1997 provides for clear-cut procedure
for the recognition and delineation of ancestral domain, which entails, among other things, the observance
of the free and prior informed consent of the Indigenous Cultural Communities/Indigenous
Peoples. Notably, the statute does not grant the Executive Department or any government agency the
power to delineate and recognize an ancestral domain claim by mere agreement or compromise.

The invocation of the doctrine of executive privilege as a defense to the general right to information or the
specific right to consultation is untenable. The various explicit legal provisions fly in the face of executive
secrecy. In any event, respondents effectively waived such defense after it unconditionally disclosed the
official copies of the final draft of the MOA-AD, for judicial compliance and public scrutiny.

IN SUM, the Presidential Adviser on the Peace Process committed grave abuse of discretion when he failed
to carry out the pertinent consultation process, as mandated by E.O. No. 3, Republic Act No. 7160, and
Republic Act No. 8371. The furtive process by which the MOA-AD was designed and crafted runs contrary
to and in excess of the legal authority, and amounts to a whimsical, capricious, oppressive, arbitrary and
despotic exercise thereof. It illustrates a gross evasion of positive duty and a virtual refusal to perform the
duty enjoined.

The MOA-AD cannot be reconciled with the present Constitution and laws. Not only its specific
provisions but the very concept underlying them, namely, the associative relationship envisioned between
the GRP and the BJE, are unconstitutional, for the concept presupposes that the associated entity is a
state and implies that the same is on its way to independence.

While there is a clause in the MOA-AD stating that the provisions thereof inconsistent with the present legal
framework will not be effective until that framework is amended, the same does not cure its defect. The
inclusion of provisions in the MOA-AD establishing an associative relationship between the BJE and the
Central Government is, itself, a violation of the Memorandum of Instructions From The President dated
March 1, 2001, addressed to the government peace panel. Moreover, as the clause is worded, it virtually
guarantees that the necessary amendments to the Constitution and the laws will eventually be put in
place. Neither the GRP Peace Panel nor the President herself is authorized to make such a
guarantee. Upholding such an act would amount to authorizing a usurpation of the constituent powers
vested only in Congress, a Constitutional Convention, or the people themselves through the process of
initiative, for the only way that the Executive can ensure the outcome of the amendment process is
through an undue influence or interference with that process.

While the MOA-AD would not amount to an international agreement or unilateral declaration binding
on the Philippines under international law, respondents act of guaranteeing amendments is, by itself,
already a constitutional violation that renders the MOA-AD fatally defective.

WHEREFORE, respondents motion to dismiss is DENIED. The main and intervening petitions are
GIVEN DUE COURSE and hereby GRANTED.

The Memorandum of Agreement on the Ancestral Domain Aspect of the GRP-MILF Tripoli Agreement
on Peace of 2001 is declared CONTRARY TO LAW AND THE CONSTITUTION.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 127325 March 19, 1997
MIRIAM DEFENSOR SANTIAGO, ALEXANDER PADILLA, and MARIA ISABEL ONGPIN, petitioners,
vs.
COMMISSION ON ELECTIONS, JESUS DELFIN, ALBERTO PEDROSA & CARMEN PEDROSA, in their
capacities as founding members of the People's Initiative for Reforms, Modernization and
Action (PIRMA),respondents.
SENATOR RAUL S. ROCO, DEMOKRASYA-IPAGTANGGOL ANG KONSTITUSYON (DIK), MOVEMENT
OF ATTORNEYS FOR BROTHERHOOD INTEGRITY AND NATIONALISM, INC. (MABINI), INTEGRATED
BAR OF THE PHILIPPINES (IBP), and LABAN NG DEMOKRATIKONG PILIPINO (LABAN), petitionersintervenors.
DAVIDE, JR., J.:
The heart of this controversy brought to us by way of a petition for prohibition under Rule 65 of the Rules
of Court is the right of the people to directly propose amendments to the Constitution through the system
of initiative under Section 2 of Article XVII of the 1987 Constitution. Undoubtedly, this demands special
attention, as this system of initiative was unknown to the people of this country, except perhaps to a few
scholars, before the drafting of the 1987 Constitution. The 1986 Constitutional Commission itself, through
the original proponent 1 and the main sponsor2 of the proposed Article on Amendments or Revision of the
Constitution, characterized this system as "innovative". 3 Indeed it is, for both under the 1935 and 1973
Constitutions, only two methods of proposing amendments to, or revision of, the Constitution were
recognized, viz., (1) by Congress upon a vote of three-fourths of all its members and (2) by a constitutional
convention. 4 For this and the other reasons hereafter discussed, we resolved to give due course to this
petition.
On 6 December 1996, private respondent Atty. Jesus S. Delfin filed with public respondent Commission on
Elections (hereafter, COMELEC) a "Petition to Amend the Constitution, to Lift Term Limits of Elective
Officials, by People's Initiative" (hereafter, Delfin Petition) 5 wherein Delfin asked the COMELEC for an order
1. Fixing the time and dates for signature gathering all over the country;
2. Causing the necessary publications of said Order and the attached "Petition for Initiative
on the 1987 Constitution, in newspapers of general and local circulation;
3. Instructing Municipal Election Registrars in all Regions of the Philippines, to assist
Petitioners and volunteers, in establishing signing stations at the time and on the dates
designated for the purpose.
Delfin alleged in his petition that he is a founding member of the Movement for People's Initiative, 6 a
group of citizens desirous to avail of the system intended to institutionalize people power; that he and the
members of the Movement and other volunteers intend to exercise the power to directly propose
amendments to the Constitution granted under Section 2, Article XVII of the Constitution; that the exercise
of that power shall be conducted in proceedings under the control and supervision of the COMELEC; that,
as required in COMELEC Resolution No. 2300, signature stations shall be established all over the country,
with the assistance of municipal election registrars, who shall verify the signatures affixed by individual
signatories; that before the Movement and other volunteers can gather signatures, it is necessary that the
time and dates to be designated for the purpose be first fixed in an order to be issued by the COMELEC;
and that to adequately inform the people of the electoral process involved, it is likewise necessary that the
said order, as well as the Petition on which the signatures shall be affixed, be published in newspapers of
general and local circulation, under the control and supervision of the COMELEC.
The Delfin Petition further alleged that the provisions sought to be amended are Sections 4 and 7 of Article
VI, 7Section 4 of Article VII, 8 and Section 8 of Article X 9 of the Constitution. Attached to the petition is a
copy of a "Petition for Initiative on the 1987 Constitution" 10 embodying the proposed amendments which
consist in the deletion from the aforecited sections of the provisions concerning term limits, and with the
following proposition:
DO YOU APPROVE OF LIFTING THE TERM LIMITS OF ALL ELECTIVE GOVERNMENT OFFICIALS,
AMENDING FOR THE PURPOSE SECTIONS 4 AND 7 OF ARTICLE VI, SECTION 4 OF ARTICLE VII,
AND SECTION 8 OF ARTICLE X OF THE 1987 PHILIPPINE CONSTITUTION?

According to Delfin, the said Petition for Initiative will first be submitted to the people, and after it is signed
by at least twelve per cent of the total number of registered voters in the country it will be formally filed
with the COMELEC.
Upon the filing of the Delfin Petition, which was forthwith given the number UND 96-037 (INITIATIVE), the
COMELEC, through its Chairman, issued an Order 11 (a) directing Delfin "to cause the publication of the
petition, together with the attached Petition for Initiative on the 1987 Constitution (including the proposal,
proposed constitutional amendment, and the signature form), and the notice of hearing in three (3) daily
newspapers of general circulation at his own expense" not later than 9 December 1996; and (b) setting the
case for hearing on 12 December 1996 at 10:00 a.m.
At the hearing of the Delfin Petition on 12 December 1996, the following appeared: Delfin and Atty. Pete Q.
Quadra; representatives of the People's Initiative for Reforms, Modernization and Action (PIRMA);
intervenor-oppositor Senator Raul S. Roco, together with his two other lawyers, and representatives of, or
counsel for, the Integrated Bar of the Philippines (IBP), Demokrasya-Ipagtanggol ang Konstitusyon (DIK),
Public Interest Law Center, and Laban ng Demokratikong Pilipino (LABAN). 12 Senator Roco, on that same
day, filed a Motion to Dismiss the Delfin Petition on the ground that it is not the initiatory petition properly
cognizable by the COMELEC.
After hearing their arguments, the COMELEC directed Delfin and the oppositors to file their "memoranda
and/or oppositions/memoranda" within five days. 13
On 18 December 1996, the petitioners herein Senator Miriam Defensor Santiago, Alexander Padilla, and
Maria Isabel Ongpin filed this special civil action for prohibition raising the following arguments:
(1) The constitutional provision on people's initiative to amend the Constitution can only be
implemented by law to be passed by Congress. No such law has been passed; in fact,
Senate Bill No. 1290 entitled An Act Prescribing and Regulating Constitution Amendments by
People's Initiative, which petitioner Senator Santiago filed on 24 November 1995, is still
pending before the Senate Committee on Constitutional Amendments.
(2) It is true that R.A. No. 6735 provides for three systems of initiative, namely, initiative on
the Constitution, on statutes, and on local legislation. However, it failed to provide any
subtitle on initiative on the Constitution, unlike in the other modes of initiative, which are
specifically provided for in Subtitle II and Subtitle III. This deliberate omission indicates that
the matter of people's initiative to amend the Constitution was left to some future law.
Former Senator Arturo Tolentino stressed this deficiency in the law in his privilege speech
delivered before the Senate in 1994: "There is not a single word in that law which can be
considered as implementing [the provision on constitutional initiative]. Such implementing
provisions have been obviously left to a separate law.
(3) Republic Act No. 6735 provides for the effectivity of the law after publication in print
media. This indicates that the Act covers only laws and not constitutional amendments
because the latter take effect only upon ratification and not after publication.
(4) COMELEC Resolution No. 2300, adopted on 16 January 1991 to govern "the conduct of
initiative on the Constitution and initiative and referendum on national and local laws,
is ultra vires insofar asinitiative on amendments to the Constitution is concerned, since the
COMELEC has no power to provide rules and regulations for the exercise of the right of
initiative to amend the Constitution. Only Congress is authorized by the Constitution to pass
the implementing law.
(5) The people's initiative is limited to amendments to the Constitution, not
to revision thereof. Extending or lifting of term limits constitutes a revision and is, therefore,
outside the power of the people's initiative.
(6) Finally, Congress has not yet appropriated funds for people's initiative; neither the
COMELEC nor any other government department, agency, or office has realigned funds for
the purpose.
To justify their recourse to us via the special civil action for prohibition, the petitioners allege that in the
event the COMELEC grants the Delfin Petition, the people's initiative spearheaded by PIRMA would entail
expenses to the national treasury for general re-registration of voters amounting to at least P180 million,
not to mention the millions of additional pesos in expenses which would be incurred in the conduct of the
initiative itself. Hence, the transcendental importance to the public and the nation of the issues raised
demands that this petition for prohibition be settled promptly and definitely, brushing aside technicalities
of procedure and calling for the admission of a taxpayer's and legislator's suit. 14 Besides, there is no other
plain, speedy, and adequate remedy in the ordinary course of law.
On 19 December 1996, this Court (a) required the respondents to comment on the petition within a nonextendible period of ten days from notice; and (b) issued a temporary restraining order, effective

immediately and continuing until further orders, enjoining public respondent COMELEC from proceeding
with the Delfin Petition, and private respondents Alberto and Carmen Pedrosa from conducting a signature
drive for people's initiative to amend the Constitution.
On 2 January 1997, private respondents, through Atty Quadra, filed their Comment
argue therein that:

15

on the petition. They

1. IT IS NOT TRUE THAT "IT WOULD ENTAIL EXPENSES TO THE NATIONAL TREASURY FOR
GENERAL REGISTRATION OF VOTERS AMOUNTING TO AT LEAST PESOS: ONE HUNDRED
EIGHTY MILLION (P180,000,000.00)" IF THE "COMELEC GRANTS THE PETITION FILED BY
RESPONDENT DELFIN BEFORE THE COMELEC.
2. NOT A SINGLE CENTAVO WOULD BE SPENT BY THE NATIONAL GOVERNMENT IF THE
COMELEC GRANTS THE PETITION OF RESPONDENT DELFIN. ALL EXPENSES IN THE
SIGNATURE GATHERING ARE ALL FOR THE ACCOUNT OF RESPONDENT DELFIN AND HIS
VOLUNTEERS PER THEIR PROGRAM OF ACTIVITIES AND EXPENDITURES SUBMITTED TO THE
COMELEC. THE ESTIMATED COST OF THE DAILY PER DIEM OF THE SUPERVISING SCHOOL
TEACHERS IN THE SIGNATURE GATHERING TO BE DEPOSITED and TO BE PAID BY DELFIN AND
HIS VOLUNTEERS IS P2,571,200.00;
3. THE PENDING PETITION BEFORE THE COMELEC IS ONLY ON THE SIGNATURE GATHERING
WHICH BY LAW COMELEC IS DUTY BOUND "TO SUPERVISE CLOSELY" PURSUANT TO ITS
"INITIATORY JURISDICTION" UPHELD BY THE HONORABLE COURT IN ITS RECENT SEPTEMBER
26, 1996 DECISION IN THE CASE OF SUBIC BAY METROPOLITAN AUTHORITY VS. COMELEC,
ET AL. G.R. NO. 125416;
4. REP. ACT NO. 6735 APPROVED ON AUGUST 4, 1989 IS THE ENABLING LAW IMPLEMENTING
THE POWER OF PEOPLE INITIATIVE TO PROPOSE AMENDMENTS TO THE CONSTITUTION.
SENATOR DEFENSOR-SANTIAGO'S SENATE BILL NO. 1290 IS A DUPLICATION OF WHAT ARE
ALREADY PROVIDED FOR IN REP. ACT NO. 6735;
5. COMELEC RESOLUTION NO. 2300 PROMULGATED ON JANUARY 16, 1991 PURSUANT TO
REP. ACT 6735 WAS UPHELD BY THE HONORABLE COURT IN THE RECENT SEPTEMBER 26,
1996 DECISION IN THE CASE OF SUBIC BAY METROPOLITAN AUTHORITY VS. COMELEC, ET AL.
G.R. NO. 125416 WHERE THE HONORABLE COURT SAID: "THE COMMISSION ON ELECTIONS
CAN DO NO LESS BY SEASONABLY AND JUDICIOUSLY PROMULGATING GUIDELINES AND
RULES FOR BOTH NATIONAL AND LOCAL USE, IN IMPLEMENTING OF THESE LAWS."
6. EVEN SENATOR DEFENSOR-SANTIAGO'S SENATE BILL NO. 1290 CONTAINS A PROVISION
DELEGATING TO THE COMELEC THE POWER TO "PROMULGATE SUCH RULES AND
REGULATIONS AS MAY BE NECESSARY TO CARRY OUT THE PURPOSES OF THIS ACT." (SEC.
12, S.B. NO. 1290, ENCLOSED AS ANNEX E, PETITION);
7. THE LIFTING OF THE LIMITATION ON THE TERM OF OFFICE OF ELECTIVE OFFICIALS
PROVIDED UNDER THE 1987 CONSTITUTION IS NOT A "REVISION" OF THE CONSTITUTION. IT
IS ONLY AN AMENDMENT. "AMENDMENT ENVISAGES AN ALTERATION OF ONE OR A FEW
SPECIFIC PROVISIONS OF THE CONSTITUTION. REVISION CONTEMPLATES A RE-EXAMINATION
OF THE ENTIRE DOCUMENT TO DETERMINE HOW AND TO WHAT EXTENT IT SHOULD BE
ALTERED." (PP. 412-413, 2ND. ED. 1992, 1097 PHIL. CONSTITUTION, BY JOAQUIN G. BERNAS,
S.J.).
Also on 2 January 1997, private respondent Delfin filed in his own behalf a Comment 16 which starts off
with an assertion that the instant petition is a "knee-jerk reaction to a draft 'Petition for Initiative on the
1987 Constitution'. . . which is not formally filed yet." What he filed on 6 December 1996 was an "Initiatory
Pleading" or "Initiatory Petition," which was legally necessary to start the signature campaign to amend the
Constitution or to put the movement to gather signatures under COMELEC power and function. On the
substantive allegations of the petitioners, Delfin maintains as follows:
(1) Contrary to the claim of the petitioners, there is a law, R.A. No. 6735, which governs the
conduct ofinitiative to amend the Constitution. The absence therein of a subtitle for such
initiative is not fatal, since subtitles are not requirements for the validity or sufficiency of
laws.
(2) Section 9(b) of R.A. No. 6735 specifically provides that the proposition in an initiative to
amend the Constitution approved by the majority of the votes cast in the plebiscite shall
become effective as of the day of the plebiscite.
(3) The claim that COMELEC Resolution No. 2300 is ultra vires is contradicted by (a) Section
2, Article IX-C of the Constitution, which grants the COMELEC the power to enforce and
administer all laws and regulations relative to the conduct of an election,
plebiscite, initiative, referendum, and recall; and (b) Section 20 of R.A. 6735, which

empowers the COMELEC to promulgate such rules and regulations as may be necessary to
carry out the purposes of the Act.
(4) The proposed initiative does not involve a revision of, but mere amendment to, the
Constitution because it seeks to alter only a few specific provisions of the Constitution, or
more specifically, only those which lay term limits. It does not seek to reexamine or overhaul
the entire document.
As to the public expenditures for registration of voters, Delfin considers petitioners' estimate of P180
million as unreliable, for only the COMELEC can give the exact figure. Besides, if there will be a plebiscite it
will be simultaneous with the 1997 Barangay Elections. In any event, fund requirements for initiative will
be a priority government expense because it will be for the exercise of the sovereign power of the people.
In the Comment 17 for the public respondent COMELEC, filed also on 2 January 1997, the Office of the
Solicitor General contends that:
(1) R.A. No. 6735 deals with, inter alia, people's initiative to amend the Constitution. Its
Section 2 on Statement of Policy explicitly affirms, recognizes, and guarantees that power;
and its Section 3, which enumerates the three systems of initiative, includes initiative on the
Constitution and defines the same as the power to propose amendments to the Constitution.
Likewise, its Section 5 repeatedly mentionsinitiative on the Constitution.
(2) A separate subtitle on initiative on the Constitution is not necessary in R.A. No. 6735
because, being national in scope, that system of initiative is deemed included in the subtitle
on National Initiative and Referendum; and Senator Tolentino simply overlooked pertinent
provisions of the law when he claimed that nothing therein was provided for initiative on the
Constitution.
(3) Senate Bill No. 1290 is neither a competent nor a material proof that R.A. No. 6735 does
not deal with initiative on the Constitution.
(4) Extension of term limits of elected officials constitutes a mere amendment to the
Constitution, not a revision thereof.
(5) COMELEC Resolution No. 2300 was validly issued under Section 20 of R.A. No. 6735 and
under the Omnibus Election Code. The rule-making power of the COMELEC to implement the
provisions of R.A. No. 6735 was in fact upheld by this Court in Subic Bay Metropolitan
Authority vs. COMELEC.
On 14 January 1997, this Court (a) confirmed nunc pro tunc the temporary restraining order; (b) noted the
aforementioned Comments and the Motion to Lift Temporary Restraining Order filed by private respondents
through Atty. Quadra, as well as the latter's Manifestation stating that he is the counsel for private
respondents Alberto and Carmen Pedrosa only and the Comment he filed was for the Pedrosas; and (c)
granted the Motion for Intervention filed on 6 January 1997 by Senator Raul Roco and allowed him to file
his Petition in Intervention not later than 20 January 1997; and (d) set the case for hearing on 23 January
1997 at 9:30 a.m.
On 17 January 1997, the Demokrasya-Ipagtanggol ang Konstitusyon (DIK) and the Movement of Attorneys
for Brotherhood Integrity and Nationalism, Inc. (MABINI), filed a Motion for Intervention. Attached to the
motion was their Petition in Intervention, which was later replaced by an Amended Petition in Intervention
wherein they contend that:
(1) The Delfin proposal does not involve a mere amendment to, but a revision of, the
Constitution because, in the words of Fr. Joaquin Bernas, S.J., 18 it would involve a change
from a political philosophy that rejects unlimited tenure to one that accepts unlimited
tenure; and although the change might appear to be an isolated one, it can affect other
provisions, such as, on synchronization of elections and on the State policy of guaranteeing
equal access to opportunities for public service and prohibiting political
dynasties. 19 A revisioncannot be done by initiative which, by express provision of Section 2
of Article XVII of the Constitution, is limited to amendments.
(2) The prohibition against reelection of the President and the limits provided for all other
national and local elective officials are based on the philosophy of governance, "to open up
the political arena to as many as there are Filipinos qualified to handle the demands of
leadership, to break the concentration of political and economic powers in the hands of a
few, and to promote effective proper empowerment for participation in policy and decisionmaking for the common good"; hence, to remove the term limits is to negate and nullify the
noble vision of the 1987 Constitution.
(3) The Delfin proposal runs counter to the purpose of initiative, particularly in a conflict-ofinterest situation. Initiative is intended as a fallback position that may be availed of by the

people only if they are dissatisfied with the performance of their elective officials, but not as
a premium for good performance. 20
(4) R.A. No. 6735 is deficient and inadequate in itself to be called the enabling law that
implements the people'sinitiative on amendments to the Constitution. It fails to state (a) the
proper parties who may file the petition, (b) the appropriate agency before whom the
petition is to be filed, (c) the contents of the petition, (d) the publication of the same, (e) the
ways and means of gathering the signatures of the voters nationwide and 3% per legislative
district, (f) the proper parties who may oppose or question the veracity of the signatures, (g)
the role of the COMELEC in the verification of the signatures and the sufficiency of the
petition, (h) the appeal from any decision of the COMELEC, (I) the holding of a plebiscite, and
(g) the appropriation of funds for such people's initiative. Accordingly, there being no
enabling law, the COMELEC has no jurisdiction to hear Delfin's petition.
(5) The deficiency of R.A. No. 6735 cannot be rectified or remedied by COMELEC Resolution
No. 2300, since the COMELEC is without authority to legislate the procedure for a
people's initiative under Section 2 of Article XVII of the Constitution. That function
exclusively pertains to Congress. Section 20 of R.A. No. 6735 does not constitute a legal
basis for the Resolution, as the former does not set a sufficient standard for a valid
delegation of power.
On 20 January 1997, Senator Raul Roco filed his Petition in
Intervention. 21 He avers that R.A. No. 6735 is the enabling law that implements the people's right to
initiate constitutional amendments. This law is a consolidation of Senate Bill No. 17 and House Bill No.
21505; he co-authored the House Bill and even delivered a sponsorship speech thereon. He likewise
submits that the COMELEC was empowered under Section 20 of that law to promulgate COMELEC
Resolution No. 2300. Nevertheless, he contends that the respondent Commission is without jurisdiction to
take cognizance of the Delfin Petition and to order its publication because the said petition is not the
initiatory pleading contemplated under the Constitution, Republic Act No. 6735, and COMELEC Resolution
No. 2300. What vests jurisdiction upon the COMELEC in an initiative on the Constitution is the filing of a
petition for initiative which is signedby the required number of registered voters. He also submits that the
proponents of a constitutional amendment cannot avail of the authority and resources of the COMELEC to
assist them is securing the required number of signatures, as the COMELEC's role in an initiative on the
Constitution is limited to the determination of the sufficiency of the initiative petition and the call and
supervision of a plebiscite, if warranted.
On 20 January 1997, LABAN filed a Motion for Leave to Intervene.
The following day, the IBP filed a Motion for Intervention to which it attached a Petition in Intervention
raising the following arguments:
(1) Congress has failed to enact an enabling law mandated under Section 2, Article XVII of
the 1987 Constitution.
(2) COMELEC Resolution No. 2300 cannot substitute for the required implementing law on
the initiative to amend the Constitution.
(3) The Petition for Initiative suffers from a fatal defect in that it does not have the required
number of signatures.
(4) The petition seeks, in effect a revision of the Constitution, which can be proposed only by
Congress or a constitutional convention. 22
On 21 January 1997, we promulgated a Resolution (a) granting the Motions for Intervention filed by the DIK
and MABINI and by the IBP, as well as the Motion for Leave to Intervene filed by LABAN; (b) admitting the
Amended Petition in Intervention of DIK and MABINI, and the Petitions in Intervention of Senator Roco and
of the IBP; (c) requiring the respondents to file within a nonextendible period of five days their
Consolidated Comments on the aforesaid Petitions in Intervention; and (d) requiring LABAN to file its
Petition in Intervention within a nonextendible period of three days from notice, and the respondents to
comment thereon within a nonextendible period of five days from receipt of the said Petition in
Intervention.
At the hearing of the case on 23 January 1997, the parties argued on the following pivotal issues, which the
Court formulated in light of the allegations and arguments raised in the pleadings so far filed:
1. Whether R.A. No. 6735, entitled An Act Providing for a System of Initiative and
Referendum and Appropriating Funds Therefor, was intended to include or cover initiative on
amendments to the Constitution; and if so, whether the Act, as worded, adequately covers
such initiative.

2. Whether that portion of COMELEC Resolution No. 2300 (In re: Rules and Regulations
Governing the Conduct of Initiative on the Constitution, and Initiative and Referendum on
National and Local Laws) regarding the conduct of initiative on amendments to the
Constitution is valid, considering the absence in the law of specific provisions on the conduct
of such initiative.
3. Whether the lifting of term limits of elective national and local officials, as proposed in the
draft "Petition for Initiative on the 1987 Constitution," would constitute a revision of, or an
amendment to, the Constitution.
4. Whether the COMELEC can take cognizance of, or has jurisdiction over, a petition solely
intended to obtain an order (a) fixing the time and dates for signature gathering; (b)
instructing municipal election officers to assist Delfin's movement and volunteers in
establishing signature stations; and (c) directing or causing the publication of, inter alia, the
unsigned proposed Petition for Initiative on the 1987 Constitution.
5. Whether it is proper for the Supreme Court to take cognizance of the petition when there
is a pending case before the COMELEC.
After hearing them on the issues, we required the parties to submit simultaneously their respective
memoranda within twenty days and requested intervenor Senator Roco to submit copies of the
deliberations on House Bill No. 21505.
On 27 January 1997, LABAN filed its Petition in Intervention wherein it adopts the allegations and
arguments in the main Petition. It further submits that the COMELEC should have dismissed the Delfin
Petition for failure to state a sufficient cause of action and that the Commission's failure or refusal to do so
constituted grave abuse of discretion amounting to lack of jurisdiction.
On 28 January 1997, Senator Roco submitted copies of portions of both the Journal and the Record of the
House of Representatives relating to the deliberations of House Bill No. 21505, as well as the transcripts of
stenographic notes on the proceedings of the Bicameral Conference Committee, Committee on Suffrage
and Electoral Reforms, of 6 June 1989 on House Bill No. 21505 and Senate Bill No. 17.
Private respondents Alberto and Carmen Pedrosa filed their Consolidated Comments on the Petitions in
Intervention of Senator Roco, DIK and MABINI, and IBP. 23 The parties thereafter filed, in due time, their
separate memoranda. 24
As we stated in the beginning, we resolved to give due course to this special civil action.
For a more logical discussion of the formulated issues, we shall first take up the fifth issue which appears
to pose a prejudicial procedural question.
I
THE INSTANT PETITION IS VIABLE DESPITE THE PENDENCY IN THE COMELEC OF THE DELFIN
PETITION.
Except for the petitioners and intervenor Roco, the parties paid no serious attention to the fifth issue, i.e.,
whether it is proper for this Court to take cognizance of this special civil action when there is a pending
case before the COMELEC. The petitioners provide an affirmative answer. Thus:
28. The Comelec has no jurisdiction to take cognizance of the petition filed by private
respondent Delfin. This being so, it becomes imperative to stop the Comelec from
proceeding any further, and under the Rules of Court, Rule 65, Section 2, a petition for
prohibition is the proper remedy.
29. The writ of prohibition is an extraordinary judicial writ issuing out of a court of superior
jurisdiction and directed to an inferior court, for the purpose of preventing the inferior
tribunal from usurping a jurisdiction with which it is not legally vested. (People v.
Vera, supra., p. 84). In this case the writ is an urgent necessity, in view of the highly divisive
and adverse environmental consequences on the body politic of the questioned Comelec
order. The consequent climate of legal confusion and political instability begs for judicial
statesmanship.
30. In the final analysis, when the system of constitutional law is threatened by the political
ambitions of man, only the Supreme Court
can save a nation in peril and uphold the paramount majesty of the Constitution. 25
It must be recalled that intervenor Roco filed with the COMELEC a motion to dismiss the Delfin Petition on
the ground that the COMELEC has no jurisdiction or authority to entertain the petition. 26 The COMELEC

made no ruling thereon evidently because after having heard the arguments of Delfin and the oppositors
at the hearing on 12 December 1996, it required them to submit within five days their memoranda or
oppositions/memoranda. 27 Earlier, or specifically on 6 December 1996, it practically gave due course to
the Delfin Petition by ordering Delfin to cause the publication of the petition, together with the attached
Petition for Initiative, the signature form, and the notice of hearing; and by setting the case for hearing.
The COMELEC's failure to act on Roco's motion to dismiss and its insistence to hold on to the petition
rendered ripe and viable the instant petition under Section 2 of Rule 65 of the Rules of Court, which
provides:
Sec. 2. Petition for prohibition. Where the proceedings of any tribunal, corporation, board,
or person, whether exercising functions judicial or ministerial, are without or in excess of its
or his jurisdiction, or with grave abuse of discretion, and there is no appeal or any other
plain, speedy and adequate remedy in the ordinary course of law, a person aggrieved
thereby may file a verified petition in the proper court alleging the facts with certainty and
praying that judgment be rendered commanding the defendant to desist from further
proceedings in the action or matter specified therein.
It must also be noted that intervenor Roco claims that the COMELEC has no jurisdiction over the Delfin
Petition because the said petition is not supported by the required minimum number of signatures of
registered voters. LABAN also asserts that the COMELEC gravely abused its discretion in refusing to
dismiss the Delfin Petition, which does not contain the required number of signatures. In light of these
claims, the instant case may likewise be treated as a special civil action for certiorari under Section I of
Rule 65 of the Rules of Court.
In any event, as correctly pointed out by intervenor Roco in his Memorandum, this Court may brush aside
technicalities of procedure in
cases of transcendental importance. As we stated in Kilosbayan, Inc. v. Guingona, Jr. 28
A party's standing before this Court is a procedural technicality which it may, in the exercise
of its discretion, set aside in view of the importance of issues raised. In the landmark
Emergency Powers Cases, this Court brushed aside this technicality because the
transcendental importance to the public of these cases demands that they be settled
promptly and definitely, brushing aside, if we must, technicalities of procedure.
II
R.A. NO. 6735 INTENDED TO INCLUDE THE SYSTEM OF INITIATIVE ON AMENDMENTS TO THE
CONSTITUTION, BUT IS, UNFORTUNATELY, INADEQUATE TO COVER THAT SYSTEM.
Section 2 of Article XVII of the Constitution provides:
Sec. 2. Amendments to this Constitution may likewise be directly proposed by the people
through initiative upon a petition of at least twelve per centum of the total number of
registered voters, of which every legislative district must be represented by at least
three per centum of the registered voters therein. No amendment under this section shall be
authorized within five years following the ratification of this Constitution nor oftener than
once every five years thereafter.
The Congress shall provide for the implementation of the exercise of this right.
This provision is not self-executory. In his book,
Commission, stated:

29

Joaquin Bernas, a member of the 1986 Constitutional

Without implementing legislation Section 2 cannot operate. Thus, although this mode of
amending the Constitution is a mode of amendment which bypasses congressional action, in
the last analysis it still is dependent on congressional action.
Bluntly stated, the right of the people to directly propose amendments to the Constitution through
the system of initiative would remain entombed in the cold niche of the Constitution until Congress
provides for its implementation. Stated otherwise, while the Constitution has recognized or granted
that right, the people cannot exercise it if Congress, for whatever reason, does not provide for its
implementation.
This system of initiative was originally included in Section 1 of the draft Article on Amendment or Revision
proposed by the Committee on Amendments and Transitory Provisions of the 1986 Constitutional
Commission in its Committee Report No. 7 (Proposed Resolution No. 332). 30 That section reads as follows:
Sec. 1. Any amendment to, or revision of, this Constitution may be proposed:
(a) by the National Assembly upon a vote of three-fourths of all its members; or

(b) by a constitutional convention; or

(c) directly by the people themselves thru initiative as provided for in Article___ Section ___of
the Constitution. 31
After several interpellations, but before the period of amendments, the Committee submitted a new
formulation of the concept of initiative which it denominated as Section 2; thus:
MR. SUAREZ. Thank you, Madam President. May we respectfully call attention
of the Members of the Commission that pursuant to the mandate given to us
last night, we submitted this afternoon a complete Committee Report No. 7
which embodies the proposed provision governing the matter of initiative. This
is now covered by Section 2 of the complete committee report. With the
permission of the Members, may I quote Section 2:
The people may, after five years from the date of the last plebiscite held, directly propose
amendments to this Constitution thru initiative upon petition of at least ten percent of the
registered voters.
This completes the blanks appearing in the original Committee Report No. 7.

32

The interpellations on Section 2 showed that the details for carrying out Section 2 are left to the
legislature. Thus:
FR. BERNAS. Madam President, just two simple, clarificatory questions.
First, on Section 1 on the matter of initiative upon petition of at least 10
percent, there are no details in the provision on how to carry this out. Do we
understand, therefore, that we are leaving this matter to the legislature?
MR. SUAREZ. That is right, Madam President.
FR. BERNAS. And do we also understand, therefore, that for as long as the
legislature does not pass the necessary implementing law on this, this will not
operate?
MR. SUAREZ. That matter was also taken up during the committee hearing,
especially with respect to the budget appropriations which would have to be
legislated so that the plebiscite could be called. We deemed it best that this
matter be left to the legislature. The Gentleman is right. In any event, as
envisioned, no amendment through the power of initiative can be called until
after five years from the date of the ratification of this Constitution. Therefore,
the first amendment that could be proposed through the exercise of this
initiative power would be after five years. It is reasonably expected that within
that five-year period, the National Assembly can come up with the appropriate
rules governing the exercise of this power.
FR. BERNAS. Since the matter is left to the legislature the details on how
this is to be carried out is it possible that, in effect, what will be presented
to the people for ratification is the work of the legislature rather than of the
people? Does this provision exclude that possibility?
MR. SUAREZ. No, it does not exclude that possibility because even the
legislature itself as a body could propose that amendment, maybe individually
or collectively, if it fails to muster the three-fourths vote in order to constitute
itself as a constituent assembly and submit that proposal to the people for
ratification through the process of an initiative.
xxx xxx xxx
MS. AQUINO. Do I understand from the sponsor that the intention in the
proposal is to vest constituent power in the people to amend the Constitution?
MR. SUAREZ. That is absolutely correct, Madam President.
MS. AQUINO. I fully concur with the underlying precept of the proposal in
terms of institutionalizing popular participation in the drafting of the
Constitution or in the amendment thereof, but I would have a lot of difficulties
in terms of accepting the draft of Section 2, as written. Would the sponsor

agree with me that in the hierarchy of legal mandate, constituent power has
primacy over all other legal mandates?
MR. SUAREZ. The Commissioner is right, Madam President.
MS. AQUINO. And would the sponsor agree with me that in the hierarchy of
legal values, the Constitution is source of all legal mandates and that
therefore we require a great deal of circumspection in the drafting and in the
amendments of the Constitution?
MR. SUAREZ. That proposition is nondebatable.
MS. AQUINO. Such that in order to underscore the primacy of constituent
power we have a separate article in the constitution that would specifically
cover the process and the modes of amending the Constitution?
MR. SUAREZ. That is right, Madam President.
MS. AQUINO. Therefore, is the sponsor inclined, as the provisions are drafted
now, to again concede to the legislature the process or the requirement of
determining the mechanics of amending the Constitution by people's
initiative?
MR. SUAREZ. The matter of implementing this could very well be placed in the
hands of the National Assembly, not unless we can incorporate into this
provision the mechanics that would adequately cover all the conceivable
situations. 33
It was made clear during the interpellations that the aforementioned Section 2 is limited to proposals to
AMEND not to REVISE the Constitution; thus:
MR. SUAREZ. . . . This proposal was suggested on the theory that this matter
of initiative, which came about because of the extraordinary developments
this year, has to be separated from the traditional modes of amending the
Constitution as embodied in Section 1. The committee members felt that this
system of initiative should not extend to the revision of the entire
Constitution, so we removed it from the operation of Section 1 of the proposed
Article on Amendment or Revision. 34
xxx xxx xxx
MS. AQUINO. In which case, I am seriously bothered by providing this process
of initiative as a separate section in the Article on Amendment. Would the
sponsor be amenable to accepting an amendment in terms of realigning
Section 2 as another subparagraph (c) of Section 1, instead of setting it up as
another separate section as if it were a self-executing provision?
MR. SUAREZ. We would be amenable except that, as we clarified a while
ago, this process of initiative is limited to the matter of amendment and
should not expand into a revision which contemplates a total overhaul of the
Constitution. That was the sense that was conveyed by the Committee.
MS. AQUINO. In other words, the Committee was attempting to distinguish the
coverage of modes (a) and (b) in Section 1 to include the process of revision;
whereas the process of initiation to amend, which is given to the public, would
only apply to amendments?
MR. SUAREZ. That is right. Those were the terms envisioned in the
Committee. 35
Amendments to the proposed Section 2 were thereafter introduced by then Commissioner Hilario G.
Davide, Jr., which the Committee accepted. Thus:
MR. DAVIDE. Thank you Madam President. I propose to substitute the entire
Section 2 with the following:
MR. DAVIDE. Madam President, I have modified the proposed amendment
after taking into account the modifications submitted by the sponsor himself
and the honorable Commissioners Guingona, Monsod, Rama, Ople, de los
Reyes and Romulo. The modified amendment in substitution of the proposed

Section 2 will now read as follows: "SECTION 2. AMENDMENTS TO THIS

CONSTITUTION MAY LIKEWISE BE DIRECTLY PROPOSED BY THE PEOPLE
THROUGH INITIATIVE UPON A PETITION OF AT LEAST TWELVE PERCENT OF THE
TOTAL NUMBER Of REGISTERED VOTERS, OF WHICH EVERY LEGISLATIVE
DISTRICT MUST BE REPRESENTED BY AT LEAST THREE PERCENT OF THE
REGISTERED VOTERS THEREOF. NO AMENDMENT UNDER THIS SECTION SHALL
BE AUTHORIZED WITHIN FIVE YEARS FOLLOWING THE RATIFICATION OF THIS
CONSTITUTION NOR OFTENER THAN ONCE EVERY FIVE YEARS THEREAFTER.
THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE FOR THE IMPLEMENTATION
OF THE EXERCISE OF THIS RIGHT.
MR. SUAREZ. Madam President, considering that the proposed amendment is
reflective of the sense contained in Section 2 of our completed Committee
Report No. 7, we accept the proposed amendment. 36
The interpellations which ensued on the proposed modified amendment to Section 2 clearly showed that it
was a legislative act which must implement the exercise of the right. Thus:
MR. ROMULO. Under Commissioner Davide's amendment, is it possible for the
legislature to set forth certain procedures to carry out the initiative. . .?
MR. DAVIDE. It can.
xxx xxx xxx
MR. ROMULO. But the Commissioner's amendment does not prevent the
legislature from asking another body to set the proposition in proper form.
MR. DAVIDE. The Commissioner is correct. In other words, the implementation
of this particular right would be subject to legislation, provided the legislature
cannot determine anymore the percentage of the requirement.
MR. ROMULO. But the procedures, including the determination of the proper
form for submission to the people, may be subject to legislation.
MR. DAVIDE. As long as it will not destroy the substantive right to initiate. In
other words, none of the procedures to be proposed by the legislative body
must diminish or impair the right conceded here.
MR. ROMULO. In that provision of the Constitution can the procedures which I
have discussed be legislated?
MR. DAVIDE. Yes.

37

Commissioner Davide also reaffirmed that his modified amendment strictly confines initiative to
AMENDMENTS to NOT REVISION of the Constitution. Thus:
MR. DAVIDE. With pleasure, Madam President.
MR. MAAMBONG. My first question: Commissioner Davide's proposed
amendment on line 1 refers to "amendment." Does it not cover the word
"revision" as defined by Commissioner Padilla when he made the distinction
between the words "amendments" and "revision"?
MR. DAVIDE. No, it does not, because "amendments" and "revision" should be
covered by Section 1. So insofar as initiative is concerned, it can only relate to
"amendments" not "revision." 38
Commissioner Davide further emphasized that the process of proposing amendments
through initiative must be more rigorous and difficult than the initiative on legislation. Thus:
MR. DAVIDE. A distinction has to be made that under this proposal, what is
involved is an amendment to the Constitution. To amend a Constitution would
ordinarily require a proposal by the National Assembly by a vote of threefourths; and to call a constitutional convention would require a higher number.
Moreover, just to submit the issue of calling a constitutional convention, a
majority of the National Assembly is required, the import being that the
process of amendment must be made more rigorous and difficult than
probably initiating an ordinary legislation or putting an end to a law proposed

by the National Assembly by way of a referendum. I cannot agree to reducing

the requirement approved by the Committee on the Legislative because it
would require another voting by the Committee, and the voting as precisely
based on a requirement of 10 percent. Perhaps, I might present such a
proposal, by way of an amendment, when the Commission shall take up the
Article on the Legislative or on the National Assembly on plenary sessions. 39
The Davide modified amendments to Section 2 were subjected to amendments, and the final version,
which the Commission approved by a vote of 31 in favor and 3 against, reads as follows:
MR. DAVIDE. Thank you Madam President. Section 2, as amended, reads as
follows: "AMENDMENT TO THIS CONSTITUTION MAY LIKEWISE BE DIRECTLY
PROPOSED BY THE PEOPLE THROUGH INITIATIVE UPON A PETITION OF AT
LEAST TWELVE PERCENT OF THE TOTAL NUMBER OF REGISTERED VOTERS, OF
WHICH EVERY LEGISLATIVE DISTRICT MUST BE REPRESENTED BY AT LEAST
THREE PERCENT OF THE REGISTERED VOTERS THEREOF. NO AMENDMENT
UNDER THIS SECTION SHALL BE AUTHORIZED WITHIN FIVE YEARS FOLLOWING
THE RATIFICATION OF THIS CONSTITUTION NOR OFTENER THAN ONCE EVERY
FIVE YEARS THEREAFTER.
THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE
FOR THE IMPLEMENTATION OF THE EXERCISE OF THIS RIGHT.

40

The entire proposed Article on Amendments or Revisions was approved on second reading on 9 July
1986.41 Thereafter, upon his motion for reconsideration, Commissioner Gascon was allowed to
introduce an amendment to Section 2 which, nevertheless, was withdrawn. In view thereof, the
Article was again approved on Second and Third Readings on 1 August 1986. 42
However, the Committee on Style recommended that the approved Section 2 be amended by changing
"percent" to "per centum" and "thereof" to "therein" and deleting the phrase "by law" in the second
paragraph so that said paragraph reads: The Congress 43 shall provide for the implementation of the
exercise of this right. 44 This amendment was approved and is the text of the present second paragraph of
Section 2.
The conclusion then is inevitable that, indeed, the system of initiative on the Constitution under Section 2
of Article XVII of the Constitution is not self-executory.
Has Congress "provided" for the implementation of the exercise of this right? Those who answer the
question in the affirmative, like the private respondents and intervenor Senator Roco, point to us R.A. No.
6735.
There is, of course, no other better way for Congress to implement the exercise of the right than through
the passage of a statute or legislative act. This is the essence or rationale of the last minute amendment
by the Constitutional Commission to substitute the last paragraph of Section 2 of Article XVII then reading:
The Congress

45

shall by law provide for the implementation of the exercise of this right.

with
The Congress shall provide for the implementation of the exercise of this right.
This substitute amendment was an investiture on Congress of a power to provide for the rules
implementing the exercise of the right. The "rules" means "the details on how [the right] is to be
carried out." 46
We agree that R.A. No. 6735 was, as its history reveals, intended to cover initiative to propose
amendments to the Constitution. The Act is a consolidation of House Bill No. 21505 and Senate Bill No. 17.
The former was prepared by the Committee on Suffrage and Electoral Reforms of the House of
Representatives on the basis of two House Bills referred to it, viz., (a) House Bill No. 497, 47 which dealt
with the initiative and referendum mentioned
in Sections 1 and 32 of Article VI of the Constitution; and (b) House Bill No. 988, 48 which dealt with the
subject matter of House Bill No. 497, as well as with initiative and referendum under Section 3 of Article X
(Local Government) and initiative provided for in Section 2 of Article XVII of the Constitution. Senate Bill
No. 17 49 solely dealt with initiative and referendum concerning ordinances or resolutions of local
government units. The Bicameral Conference Committee consolidated Senate Bill No. 17 and House Bill No.
21505 into a draft bill, which was subsequently approved on 8 June 1989 by the Senate 50 and by the
House of Representatives. 51 This approved bill is now R.A. No. 6735.
But is R.A. No. 6735 a full compliance with the power and duty of Congress to "provide for the
implementation of the exercise of the right?"

A careful scrutiny of the Act yields a negative answer.

First. Contrary to the assertion of public respondent COMELEC, Section 2 of the Act does not suggest an
initiative on amendments to the Constitution. The said section reads:
Sec. 2. Statement and Policy. The power of the people under a system of initiative and
referendum to directly propose, enact, approve or reject, in whole or in part, the
Constitution, laws, ordinances, or resolutions passed by any legislative body upon
compliance with the requirements of this Act is hereby affirmed, recognized and guaranteed.
(Emphasis supplied).
The inclusion of the word "Constitution" therein was a delayed afterthought. That word is neither
germane nor relevant to said section, which exclusively relates to initiative and referendum on
national laws and local laws, ordinances, and resolutions. That section is silent as
to amendments on the Constitution. As pointed out earlier, initiative on the Constitution is confined
only to proposals to AMEND. The people are not accorded the power to "directly propose, enact,
approve, or reject, in whole or in part, the Constitution" through the system of initiative. They can
only do so with respect to "laws, ordinances, or resolutions."
The foregoing conclusion is further buttressed by the fact that this section was lifted from Section 1 of
Senate Bill No. 17, which solely referred to a statement of policy on local initiative and referendum and
appropriately used the phrases "propose and enact," "approve or reject" and "in whole or in part." 52
Second. It is true that Section 3 (Definition of Terms) of the Act defines initiative on amendments to the
Constitution and mentions it as one of the three systems of initiative, and that Section 5 (Requirements)
restates the constitutional requirements as to the percentage of the registered voters who must submit the
proposal. But unlike in the case of the other systems of initiative, the Act does not provide for the contents
of a petition for initiative on the Constitution. Section 5, paragraph (c) requires, among other things,
statement of the proposed law sought to be enacted, approved or rejected, amended or repealed, as the
case may be. It does not include, as among the contents of the petition, the provisions of the Constitution
sought to be amended, in the case of initiative on the Constitution. Said paragraph (c) reads in full as
follows:
(c) The petition shall state the following:
c.1 contents or text of the proposed law sought to be enacted, approved or rejected,
amended or repealed, as the case may be;
c.2 the proposition;
c.3 the reason or reasons therefor;
c.4 that it is not one of the exceptions provided therein;
c.5 signatures of the petitioners or registered voters; and
c.6 an abstract or summary proposition is not more than one hundred (100) words which
shall be legibly written or printed at the top of every page of the petition. (Emphasis
supplied).
The use of the clause "proposed laws sought to be enacted, approved or rejected, amended or
repealed" only strengthens the conclusion that Section 2, quoted earlier, excludes initiative on
amendments to the Constitution.
Third. While the Act provides subtitles for National Initiative and Referendum (Subtitle II) and for Local
Initiative and Referendum (Subtitle III), no subtitle is provided for initiative on the Constitution. This
conspicuous silence as to the latter simply means that the main thrust of the Act is initiative and
referendum on national and local laws. If Congress intended R.A. No. 6735 to fully provide for the
implementation of the initiative on amendments to the Constitution, it could have provided for a subtitle
therefor, considering that in the order of things, the primacy of interest, or hierarchy of values, the right of
the people to directly propose amendments to the Constitution is far more important than the initiative on
national and local laws.
We cannot accept the argument that the initiative on amendments to the Constitution is subsumed under
the subtitle on National Initiative and Referendum because it is national in scope. Our reading of Subtitle II
(National Initiative and Referendum) and Subtitle III (Local Initiative and Referendum) leaves no room for
doubt that the classification is not based on the scope of the initiative involved, but on
its nature and character. It is "national initiative," if what is proposed to be adopted or enacted is
a national law, or a law which only Congress can pass. It is "local initiative" if what is proposed to be
adopted or enacted is a law, ordinance, or resolution which only the legislative bodies of the governments
of the autonomous regions, provinces, cities, municipalities, and barangays can pass. This classification of

initiative into national and local is actually based on Section 3 of the Act, which we quote for emphasis and
clearer understanding:
Sec. 3. Definition of terms
xxx xxx xxx
There are three (3) systems of initiative, namely:
a.1 Initiative on the Constitution which refers to a petition proposing amendments to the
Constitution;
a.2 Initiative on Statutes which refers to a petition proposing to enact a national legislation;
and
a.3 Initiative on local legislation which refers to a petition proposing to enact a regional,
provincial, city, municipal, or barangay law, resolution or ordinance. (Emphasis supplied).
Hence, to complete the classification under subtitles there should have been a subtitle on initiative on
amendments to the Constitution. 53
A further examination of the Act even reveals that the subtitling is not accurate. Provisions not germane to
the subtitle on National Initiative and Referendum are placed therein, like (1) paragraphs (b) and (c) of
Section 9, which reads:
(b) The proposition in an initiative on the Constitution approved by the majority of the votes
cast in the plebiscite shall become effective as to the day of the plebiscite.
(c) A national or local initiative proposition approved by majority of the votes cast in an
election called for the purpose shall become effective fifteen (15) days after certification and
proclamation of the Commission. (Emphasis supplied).
(2) that portion of Section 11 (Indirect Initiative) referring to indirect initiative with the legislative bodies of
local governments; thus:
Sec. 11. Indirect Initiative. Any duly accredited people's organization, as defined by law,
may file a petition for indirect initiative with the House of Representatives, and other
legislative bodies. . . .
and (3) Section 12 on Appeal, since it applies to decisions of the COMELEC on the findings of
sufficiency or insufficiency of the petition for initiative or referendum, which could be petitions for
both national and localinitiative and referendum.
Upon the other hand, Section 18 on "Authority of Courts" under subtitle III on Local Initiative and
Referendum is misplaced, 54 since the provision therein applies to both national and local initiative and
referendum. It reads:
Sec. 18. Authority of Courts. Nothing in this Act shall prevent or preclude the proper
courts from declaring null and void any proposition approved pursuant to this Act for
violation of the Constitution or want of capacity of the local legislative body to enact the said
measure.
Curiously, too, while R.A. No. 6735 exerted utmost diligence and care in providing for the details in the
implementation of initiative and referendum on national and local legislation thereby giving them special
attention, it failed, rather intentionally, to do so on the system of initiative on amendments to the
Constitution. Anent the initiative on national legislation, the Act provides for the following:
(a) The required percentage of registered voters to sign the petition and the contents of the petition;
(b) The conduct and date of the initiative;
(c) The submission to the electorate of the proposition and the required number of votes for its approval;
(d) The certification by the COMELEC of the approval of the proposition;
(e) The publication of the approved proposition in the Official Gazette or in a newspaper of general
circulation in the Philippines; and
(f) The effects of the approval or rejection of the proposition.

55

As regards local initiative, the Act provides for the following:

(a) The preliminary requirement as to the number of signatures of registered voters for the petition;
(b) The submission of the petition to the local legislative body concerned;
(c) The effect of the legislative body's failure to favorably act thereon, and the invocation of the power of
initiative as a consequence thereof;
(d) The formulation of the proposition;
(e) The period within which to gather the signatures;
(f) The persons before whom the petition shall be signed;
(g) The issuance of a certification by the COMELEC through its official in the local government unit
concerned as to whether the required number of signatures have been obtained;
(h) The setting of a date by the COMELEC for the submission of the proposition to the registered voters for
their approval, which must be within the period specified therein;
(i) The issuance of a certification of the result;
(j) The date of effectivity of the approved proposition;
(k) The limitations on local initiative; and
(l) The limitations upon local legislative bodies.

56

Upon the other hand, as to initiative on amendments to the Constitution, R.A. No. 6735, in all of its twentythree sections, merely (a) mentions, the word "Constitution" in Section 2; (b) defines "initiative on the
Constitution" and includes it in the enumeration of the three systems of initiative in Section 3; (c) speaks of
"plebiscite" as the process by which the proposition in an initiative on the Constitution may be approved or
rejected by the people; (d) reiterates the constitutional requirements as to the number of voters who
should sign the petition; and (e) provides for the date of effectivity of the approved proposition.
There was, therefore, an obvious downgrading of the more important or the paramount system of
initiative. RA. No. 6735 thus delivered a humiliating blow to the system of initiative on amendments to the
Constitution by merely paying it a reluctant lip service. 57
The foregoing brings us to the conclusion that R.A. No. 6735 is incomplete, inadequate, or wanting in
essential terms and conditions insofar as initiative on amendments to the Constitution is concerned. Its
lacunae on this substantive matter are fatal and cannot be cured by "empowering" the COMELEC "to
promulgate such rules and regulations as may be necessary to carry out the purposes of [the] Act. 58
The rule is that what has been delegated, cannot be delegated or as expressed in a Latin maxim: potestas
delegata non delegari potest. 59 The recognized exceptions to the rule are as follows:
(1) Delegation of tariff powers to the President under Section 28(2) of Article VI of the Constitution;
(2) Delegation of emergency powers to the President under Section 23(2) of Article VI of the Constitution;
(3) Delegation to the people at large;
(4) Delegation to local governments; and
(5) Delegation to administrative bodies.

60

Empowering the COMELEC, an administrative body exercising quasi-judicial functions, to promulgate rules
and regulations is a form of delegation of legislative authority under no. 5 above. However, in every case
of permissible delegation, there must be a showing that the delegation itself is valid. It is valid only if the
law (a) is complete in itself, setting forth therein the policy to be executed, carried out, or implemented by
the delegate; and (b) fixes a standard the limits of which are sufficiently determinate and determinable
to which the delegate must conform in the performance of his functions. 61 A sufficient standard is one
which defines legislative policy, marks its limits, maps out its boundaries and specifies the public agency
to apply it. It indicates the circumstances under which the legislative command is to be effected. 62

Insofar as initiative to propose amendments to the Constitution is concerned, R.A. No. 6735 miserably
failed to satisfy both requirements in subordinate legislation. The delegation of the power to the COMELEC
is then invalid.
III
COMELEC RESOLUTION NO. 2300, INSOFAR AS IT PRESCRIBES RULES AND REGULATIONS ON THE
CONDUCT OF INITIATIVE ON AMENDMENTS TO THE CONSTITUTION, IS VOID.
It logically follows that the COMELEC cannot validly promulgate rules and regulations to implement the
exercise of the right of the people to directly propose amendments to the Constitution through the system
of initiative. It does not have that power under R.A. No. 6735. Reliance on the COMELEC's power under
Section 2(1) of Article IX-C of the Constitution is misplaced, for the laws and regulations referred to therein
are those promulgated by the COMELEC under (a) Section 3 of Article IX-C of the Constitution, or (b) a law
where subordinate legislation is authorized and which satisfies the "completeness" and the "sufficient
standard" tests.
IV
COMELEC ACTED WITHOUT JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION IN ENTERTAINING
THE DELFIN PETITION.
Even if it be conceded ex gratia that R.A. No. 6735 is a full compliance with the power of Congress to
implement the right to initiate constitutional amendments, or that it has validly vested upon the COMELEC
the power of subordinate legislation and that COMELEC Resolution No. 2300 is valid, the COMELEC acted
without jurisdiction or with grave abuse of discretion in entertaining the Delfin Petition.
Under Section 2 of Article XVII of the Constitution and Section 5(b) of R.A. No. 6735, a petition for initiative
on the Constitution must be signed by at least 12% of the total number of registered voters of which every
legislative district is represented by at least 3% of the registered voters therein. The Delfin Petition does
not contain signatures of the required number of voters. Delfin himself admits that he has not yet gathered
signatures and that the purpose of his petition is primarily to obtain assistance in his drive to gather
signatures. Without the required signatures, the petition cannot be deemed validly initiated.
The COMELEC acquires jurisdiction over a petition for initiative only after its filing. The petition then is
the initiatory pleading. Nothing before its filing is cognizable by the COMELEC, sitting en banc. The only
participation of the COMELEC or its personnel before the filing of such petition are (1) to prescribe the form
of the petition; 63 (2) to issue through its Election Records and Statistics Office a certificate on the total
number of registered voters in each legislative district; 64 (3) to assist, through its election registrars, in the
establishment of signature stations; 65 and (4) to verify, through its election registrars, the signatures on
the basis of the registry list of voters, voters' affidavits, and voters' identification cards used in the
immediately preceding election. 66
Since the Delfin Petition is not the initiatory petition under R.A. No. 6735 and COMELEC Resolution No.
2300, it cannot be entertained or given cognizance of by the COMELEC. The respondent Commission must
have known that the petition does not fall under any of the actions or proceedings under the COMELEC
Rules of Procedure or under Resolution No. 2300, for which reason it did not assign to the petition a docket
number. Hence, the said petition was merely entered as UND, meaning, undocketed. That petition was
nothing more than a mere scrap of paper, which should not have been dignified by the Order of 6
December 1996, the hearing on 12 December 1996, and the order directing Delfin and the oppositors to
file their memoranda or oppositions. In so dignifying it, the COMELEC acted without jurisdiction or with
grave abuse of discretion and merely wasted its time, energy, and resources.
The foregoing considered, further discussion on the issue of whether the proposal to lift the term limits of
elective national and local officials is an amendment to, and not a revision of, the Constitution is rendered
unnecessary, if not academic.
CONCLUSION
This petition must then be granted, and the COMELEC should be permanently enjoined from entertaining
or taking cognizance of any petition for initiative on amendments to the Constitution until a sufficient law
shall have been validly enacted to provide for the implementation of the system.
We feel, however, that the system of initiative to propose amendments to the Constitution should no
longer be kept in the cold; it should be given flesh and blood, energy and strength. Congress should not
tarry any longer in complying with the constitutional mandate to provide for the implementation of the
right of the people under that system.
WHEREFORE, judgment is hereby rendered
a) GRANTING the instant petition;

b) DECLARING R.A. No. 6735 inadequate to cover the system of initiative on amendments to the
Constitution, and to have failed to provide sufficient standard for subordinate legislation;
c) DECLARING void those parts of Resolution No. 2300 of the Commission on Elections prescribing rules
and regulations on the conduct of initiative or amendments to the Constitution; and
d) ORDERING the Commission on Elections to forthwith DISMISS the DELFIN petition (UND-96-037).
The Temporary Restraining Order issued on 18 December 1996 is made permanent as against the
Commission on Elections, but is LIFTED as against private respondents.
Resolution on the matter of contempt is hereby reserved.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 174153

October 25, 2006

RAUL L. LAMBINO and ERICO B. AUMENTADO, TOGETHER WITH 6,327,952 REGISTERED

VOTERS,Petitioners,
vs.
THE COMMISSION ON ELECTIONS, Respondent.
x--------------------------------------------------------x
ALTERNATIVE LAW GROUPS, INC., Intervenor.
x ------------------------------------------------------ x
ONEVOICE INC., CHRISTIAN S.MONSOD, RENE B. AZURIN, MANUEL L. QUEZON III, BENJAMIN T.
TOLOSA, JR., SUSAN V. OPLE, and CARLOS P. MEDINA, JR., Intervenors.
x------------------------------------------------------ x
ATTY. PETE QUIRINO QUADRA, Intervenor.
x--------------------------------------------------------x
BAYAN represented by its Chairperson Dr. Carolina Pagaduan-Araullo, BAYAN MUNA
represented by its Chairperson Dr. Reynaldo Lesaca, KILUSANG MAYO UNO represented by its
Secretary General Joel Maglunsod, HEAD represented by its Secretary General Dr. Gene Alzona
Nisperos, ECUMENICAL BISHOPS FORUM represented by Fr. Dionito Cabillas, MIGRANTE
represented by its Chairperson Concepcion Bragas-Regalado, GABRIELA represented by its
Secretary General Emerenciana de Jesus, GABRIELA WOMEN'S PARTY represented by Sec. Gen.
Cristina Palabay, ANAKBAYAN represented by Chairperson Eleanor de Guzman, LEAGUE OF
FILIPINO STUDENTS represented by Chair Vencer Crisostomo Palabay, JOJO PINEDA of the
League of Concerned Professionals and Businessmen, DR. DARBY SANTIAGO of the Solidarity
of Health Against Charter Change, DR. REGINALD PAMUGAS of Health Action for Human
Rights, Intervenors.
x--------------------------------------------------------x
LORETTA ANN P. ROSALES, MARIO JOYO AGUJA, and ANA THERESA HONTIVEROSBARAQUEL,Intervenors.
x--------------------------------------------------------x
ARTURO M. DE CASTRO, Intervenor.
x ------------------------------------------------------- x
TRADE UNION CONGRESS OF THE PHILIPPINES, Intervenor.
x---------------------------------------------------------x
LUWALHATI RICASA ANTONINO, Intervenor.
x ------------------------------------------------------- x
PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), CONRADO F. ESTRELLA, TOMAS C.
TOLEDO, MARIANO M. TAJON, FROILAN M. BACUNGAN, JOAQUIN T. VENUS, JR., FORTUNATO P.
AGUAS, and AMADO GAT INCIONG, Intervenors.
x ------------------------------------------------------- x
RONALD L. ADAMAT, ROLANDO MANUEL RIVERA, and RUELO BAYA, Intervenors.
x -------------------------------------------------------- x

PHILIPPINE TRANSPORT AND GENERAL WORKERS ORGANIZATION (PTGWO) and MR. VICTORINO
F. BALAIS, Intervenors.
x -------------------------------------------------------- x
SENATE OF THE PHILIPPINES, represented by its President, MANUEL VILLAR, JR., Intervenor.
x ------------------------------------------------------- x
SULONG BAYAN MOVEMENT FOUNDATION, INC., Intervenor.
x ------------------------------------------------------- x
JOSE ANSELMO I. CADIZ, BYRON D. BOCAR, MA. TANYA KARINA A. LAT, ANTONIO L. SALVADOR,
and RANDALL TABAYOYONG, Intervenors.
x -------------------------------------------------------- x
INTEGRATED BAR OF THE PHILIPPINES, CEBU CITY AND CEBU PROVINCE CHAPTERS, Intervenors.
x --------------------------------------------------------x
SENATE MINORITY LEADER AQUILINO Q. PIMENTEL, JR. and SENATORS SERGIO R. OSMENA III,
JAMBY MADRIGAL, JINGGOY ESTRADA, ALFREDO S. LIM and PANFILO LACSON, Intervenors.
x -----------------------------------------------------x
JOSEPH EJERCITO ESTRADA and PWERSA NG MASANG PILIPINO, Intervenors.
x -----------------------------------------------------x
G.R. No. 174299

October 25, 2006

MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR., and RENE A.V. SAGUISAG, Petitioners,
vs.
COMMISSION ON ELECTIONS, represented by Chairman BENJAMIN S. ABALOS, SR., and
Commissioners RESURRECCION Z. BORRA, FLORENTINO A. TUASON, JR., ROMEO A. BRAWNER,
RENE V. SARMIENTO, NICODEMO T. FERRER, and John Doe and Peter Doe,, Respondent.
DECISION

CARPIO, J.:
The Case
These are consolidated petitions on the Resolution dated 31 August 2006 of the Commission on Elections
("COMELEC") denying due course to an initiative petition to amend the 1987 Constitution.
Antecedent Facts
On 15 February 2006, petitioners in G.R. No. 174153, namely Raul L. Lambino and Erico B. Aumentado
("Lambino Group"), with other groups1 and individuals, commenced gathering signatures for an initiative
petition to change the 1987 Constitution. On 25 August 2006, the Lambino Group filed a petition with the
COMELEC to hold a plebiscite that will ratify their initiative petition under Section 5(b) and (c) 2 and Section
73 of Republic Act No. 6735 or the Initiative and Referendum Act ("RA 6735").
The Lambino Group alleged that their petition had the support of 6,327,952 individuals constituting at least
twelveper centum (12%) of all registered voters, with each legislative district represented by at least
three per centum(3%) of its registered voters. The Lambino Group also claimed that COMELEC election
registrars had verified the signatures of the 6.3 million individuals.
The Lambino Group's initiative petition changes the 1987 Constitution by modifying Sections 1-7 of Article
VI (Legislative Department)4 and Sections 1-4 of Article VII (Executive Department)5 and by adding Article
XVIII entitled "Transitory Provisions."6 These proposed changes will shift the present Bicameral-Presidential
system to a Unicameral-Parliamentary form of government. The Lambino Group prayed that after due
publication of their petition, the COMELEC should submit the following proposition in a plebiscite for the
voters' ratification:

DO YOU APPROVE THE AMENDMENT OF ARTICLES VI AND VII OF THE 1987 CONSTITUTION,
CHANGING THE FORM OF GOVERNMENT FROM THE PRESENT BICAMERAL-PRESIDENTIAL TO A
UNICAMERAL-PARLIAMENTARY SYSTEM, AND PROVIDING ARTICLE XVIII AS TRANSITORY PROVISIONS
FOR THE ORDERLY SHIFT FROM ONE SYSTEM TO THE OTHER?
On 30 August 2006, the Lambino Group filed an Amended Petition with the COMELEC indicating
modifications in the proposed Article XVIII (Transitory Provisions) of their initiative. 7
The Ruling of the COMELEC
On 31 August 2006, the COMELEC issued its Resolution denying due course to the Lambino Group's
petition for lack of an enabling law governing initiative petitions to amend the Constitution. The COMELEC
invoked this Court's ruling in Santiago v. Commission on Elections8 declaring RA 6735 inadequate to
implement the initiative clause on proposals to amend the Constitution. 9
In G.R. No. 174153, the Lambino Group prays for the issuance of the writs of certiorari and mandamus to
set aside the COMELEC Resolution of 31 August 2006 and to compel the COMELEC to give due course to
their initiative petition. The Lambino Group contends that the COMELEC committed grave abuse of
discretion in denying due course to their petition since Santiago is not a binding precedent. Alternatively,
the Lambino Group claims thatSantiago binds only the parties to that case, and their petition deserves
cognizance as an expression of the "will of the sovereign people."
In G.R. No. 174299, petitioners ("Binay Group") pray that the Court require respondent COMELEC
Commissioners to show cause why they should not be cited in contempt for the COMELEC's verification of
signatures and for "entertaining" the Lambino Group's petition despite the permanent injunction
in Santiago. The Court treated the Binay Group's petition as an opposition-in-intervention.
In his Comment to the Lambino Group's petition, the Solicitor General joined causes with the petitioners,
urging the Court to grant the petition despite the Santiago ruling. The Solicitor General proposed that the
Court treat RA 6735 and its implementing rules "as temporary devises to implement the system of
initiative."
Various groups and individuals sought intervention, filing pleadings supporting or opposing the Lambino
Group's petition. The supporting intervenors10 uniformly hold the view that the COMELEC committed grave
abuse of discretion in relying on Santiago. On the other hand, the opposing intervenors11 hold the
contrary view and maintain that Santiago is a binding precedent. The opposing intervenors also
challenged (1) the Lambino Group's standing to file the petition; (2) the validity of the signature gathering
and verification process; (3) the Lambino Group's compliance with the minimum requirement for the
percentage of voters supporting an initiative petition under Section 2, Article XVII of the 1987
Constitution;12 (4) the nature of the proposed changes as revisions and not mere amendments as provided
under Section 2, Article XVII of the 1987 Constitution; and (5) the Lambino Group's compliance with the
requirement in Section 10(a) of RA 6735 limiting initiative petitions to only one subject.
The Court heard the parties and intervenors in oral arguments on 26 September 2006. After receiving the
parties' memoranda, the Court considered the case submitted for resolution.
The Issues
The petitions raise the following issues:
1. Whether the Lambino Group's initiative petition complies with Section 2, Article XVII of the Constitution
on amendments to the Constitution through a people's initiative;
2. Whether this Court should revisit its ruling in Santiago declaring RA 6735 "incomplete, inadequate or
wanting in essential terms and conditions" to implement the initiative clause on proposals to amend the
Constitution; and
3. Whether the COMELEC committed grave abuse of discretion in denying due course to the Lambino
Group's petition.
The Ruling of the Court
There is no merit to the petition.
The Lambino Group miserably failed to comply with the basic requirements of the Constitution for
conducting a people's initiative. Thus, there is even no need to revisit Santiago, as the present petition
warrants dismissal based alone on the Lambino Group's glaring failure to comply with the basic
requirements of the Constitution. For following the Court's ruling in Santiago, no grave abuse of discretion
is attributable to the Commision on Elections.

1. The Initiative Petition Does Not Comply with Section 2, Article XVII of the Constitution on
Direct Proposal by the People
Section 2, Article XVII of the Constitution is the governing constitutional provision that allows a people's
initiative to propose amendments to the Constitution. This section states:
Sec. 2. Amendments to this Constitution may likewise be directly proposed by the people
through initiative upon a petition of at least twelve per centum of the total number of
registered voters of which every legislative district must be represented by at least three per
centum of the registered voters therein. x x x x (Emphasis supplied)
The deliberations of the Constitutional Commission vividly explain the meaning of an amendment
"directly proposed by the people through initiative upon a petition," thus:
MR. RODRIGO: Let us look at the mechanics. Let us say some voters want to propose a
constitutional amendment. Is the draft of the proposed constitutional amendment ready to
be shown to the people when they are asked to sign?
MR. SUAREZ: That can be reasonably assumed, Madam President.
MR. RODRIGO: What does the sponsor mean? The draft is ready and shown to them before
they sign. Now, who prepares the draft?
MR. SUAREZ: The people themselves, Madam President.
MR. RODRIGO: No, because before they sign there is already a draft shown to them and they
are asked whether or not they want to propose this constitutional amendment.
MR. SUAREZ: As it is envisioned, any Filipino can prepare that proposal and pass it around for
signature.13 (Emphasis supplied)
Clearly, the framers of the Constitution intended that the "draft of the proposed constitutional
amendment" should be "ready and shown" to the people "before" they sign such proposal. The
framers plainly stated that "before they sign there is already a draft shown to them." The framers
also "envisioned" that the people should sign on the proposal itself because the proponents must
"prepare that proposal and pass it around for signature."
The essence of amendments "directly proposed by the people through initiative upon a petition"
is that the entire proposal on its face is a petition by the people. This means two essential elements
must be present. First, the people must author and thus sign the entire proposal. No agent or
representative can sign on their behalf. Second, as an initiative upon a petition, the proposal must be
embodied in a petition.
These essential elements are present only if the full text of the proposed amendments is first shown to
the people who express their assent by signing such complete proposal in a petition. Thus, an
amendment is "directly proposed by the people through initiative upon a petition" only if the
people sign on a petition that contains the full text of the proposed amendments.
The full text of the proposed amendments may be either written on the face of the petition, or attached to
it. If so attached, the petition must state the fact of such attachment. This is an assurance that every one
of the several millions of signatories to the petition had seen the full text of the proposed amendments
before signing. Otherwise, it is physically impossible, given the time constraint, to prove that every one of
the millions of signatories had seen the full text of the proposed amendments before signing.
The framers of the Constitution directly borrowed14 the concept of people's initiative from the United States
where various State constitutions incorporate an initiative clause. In almost all States 15 which allow
initiative petitions, the unbending requirement is that the people must first see the full text of
the proposed amendments before they sign to signify their assent, and that the people must
sign on an initiative petition that contains the full text of the proposed amendments.16
The rationale for this requirement has been repeatedly explained in several decisions of various courts.
Thus, inCapezzuto v. State Ballot Commission, the Supreme Court of Massachusetts, affirmed by
the First Circuit Court of Appeals, declared:
[A] signature requirement would be meaningless if the person supplying the
signature has not first seen what it is that he or she is signing. Further, and more
importantly, loose interpretation of the subscription requirement can pose a significant potential for
fraud. A person permitted to describe orally the contents of an initiative petition to a potential
signer, without the signer having actually examined the petition, could easily mislead the signer by,
for example, omitting, downplaying, or even flatly misrepresenting, portions of the petition that

might not be to the signer's liking. This danger seems particularly acute when, in this case,
the person giving the description is the drafter of the petition, who obviously has a
vested interest in seeing that it gets the requisite signatures to qualify for the
ballot.17 (Boldfacing and underscoring supplied)
Likewise, in Kerr v. Bradbury,18 the Court of Appeals of Oregon explained:
The purposes of "full text" provisions that apply to amendments by initiative commonly are
described in similar terms. x x x (The purpose of the full text requirement is to provide
sufficient information so that registered voters can intelligently evaluate whether to
sign the initiative petition."); x x x (publication of full text of amended constitutional provision
required because it is "essential for the elector to have x x x the section which is proposed to be
added to or subtracted from. If he is to vote intelligently, he must have this knowledge. Otherwise
in many instances he would be required to vote in the dark.") (Emphasis supplied)
Moreover, "an initiative signer must be informed at the time of signing of the nature and effect of that
which is proposed" and failure to do so is "deceptive and misleading" which renders the initiative void. 19
Section 2, Article XVII of the Constitution does not expressly state that the petition must set forth the full
text of the proposed amendments. However, the deliberations of the framers of our Constitution clearly
show that the framers intended to adopt the relevant American jurisprudence on people's initiative. In
particular, the deliberations of the Constitutional Commission explicitly reveal that the framers
intended that the people must first see the full text of the proposed amendments before they
sign, and that the people must sign on a petition containing such full text. Indeed, Section 5(b) of
Republic Act No. 6735, the Initiative and Referendum Act that the Lambino Group invokes as valid, requires
that the people must sign the "petition x x x as signatories."
The proponents of the initiative secure the signatures from the people. The proponents secure the
signatures in their private capacity and not as public officials. The proponents are not disinterested parties
who can impartially explain the advantages and disadvantages of the proposed amendments to the
people. The proponents present favorably their proposal to the people and do not present the arguments
against their proposal. The proponents, or their supporters, often pay those who gather the signatures.
Thus, there is no presumption that the proponents observed the constitutional requirements in gathering
the signatures. The proponents bear the burden of proving that they complied with the constitutional
requirements in gathering the signatures - that the petition contained, or incorporated by
attachment, the full text of the proposed amendments.
The Lambino Group did not attach to their present petition with this Court a copy of the paper that the
people signed as their initiative petition. The Lambino Group submitted to this Court a copy of a signature
sheet20 after the oral arguments of 26 September 2006 when they filed their Memorandum on 11 October
2006. The signature sheet with this Court during the oral arguments was the signature sheet attached 21 to
the opposition in intervention filed on 7 September 2006 by intervenor Atty. Pete Quirino-Quadra.
The signature sheet attached to Atty. Quadra's opposition and the signature sheet attached to the Lambino
Group's Memorandum are the same. We reproduce below the signature sheet in full:

Province:

City/Municipality:

No. of
Verified

Legislative
District:

Barangay:

Signatures:

PROPOSITION: "DO YOU APPROVE OF THE AMENDMENT OF ARTICLES VI AND VII OF THE 1987
CONSTITUTION, CHANGING THE FORM OF GOVERNMENT FROM THE PRESENT BICAMERAL-PRESIDENTIAL
TO A UNICAMERAL-PARLIAMENTARY SYSTEM OF GOVERNMENT, IN ORDER TO ACHIEVE GREATER
EFFICIENCY, SIMPLICITY AND ECONOMY IN GOVERNMENT; AND PROVIDING AN ARTICLE XVIII AS
TRANSITORY PROVISIONS FOR THE ORDERLY SHIFT FROM ONE SYSTEM TO ANOTHER?"
I hereby APPROVE the proposed amendment to the 1987 Constitution. My signature herein which shall
form part of the petition for initiative to amend the Constitution signifies my support for the filing thereof.

Precinc
Name
t
Numb Last Name, First
er

Address

Birthdate
MM/DD/YY

Signature

Verification

Name, M.I.

10

_________________
Barangay Official
(Print Name and Sign)

_________________
Witness
(Print Name and Sign)

__________________
Witness
(Print Name and Sign)

There is not a single word, phrase, or sentence of text of the Lambino Group's proposed
changes in the signature sheet. Neither does the signature sheet state that the text of the
proposed changes is attached to it. Petitioner Atty. Raul Lambino admitted this during the oral
arguments before this Court on 26 September 2006.
The signature sheet merely asks a question whether the people approve a shift from the BicameralPresidential to the Unicameral-Parliamentary system of government. The signature sheet does not
show to the people the draft of the proposed changes before they are asked to sign the
signature sheet. Clearly, the signature sheet is not the "petition" that the framers of the Constitution
envisioned when they formulated the initiative clause in Section 2, Article XVII of the Constitution.
Petitioner Atty. Lambino, however, explained that during the signature-gathering from February to August
2006, the Lambino Group circulated, together with the signature sheets, printed copies of the Lambino
Group's draft petition which they later filed on 25 August 2006 with the COMELEC. When asked if his group
also circulated the draft of their amended petition filed on 30 August 2006 with the COMELEC, Atty.
Lambino initially replied that they circulated both. However, Atty. Lambino changed his answer and stated
that what his group circulated was the draft of the 30 August 2006 amended petition, not the draft of the
25 August 2006 petition.
The Lambino Group would have this Court believe that they prepared the draft of the 30 August 2006
amended petition almost seven months earlier in February 2006 when they started gathering
signatures. Petitioner Erico B. Aumentado's "Verification/Certification" of the 25 August 2006 petition, as
well as of the 30 August 2006 amended petition, filed with the COMELEC, states as follows:
I have caused the preparation of the foregoing [Amended] Petition in my personal capacity as a
registered voter, for and on behalf of the Union of Local Authorities of the Philippines, as

shown by ULAP Resolution No. 2006-02 hereto attached, and as representative of the mass
of signatories hereto. (Emphasis supplied)
The Lambino Group failed to attach a copy of ULAP Resolution No. 2006-02 to the present petition.
However, the "Official Website of the Union of Local Authorities of the Philippines" 22 has posted the full text
of Resolution No. 2006-02, which provides:
RESOLUTION NO. 2006-02
RESOLUTION SUPPORTING THE PROPOSALS OF THE PEOPLE'S CONSULTATIVE
COMMISSION ON CHARTER CHANGE THROUGH PEOPLE'S INITIATIVE AND REFERENDUM
AS A MODE OF AMENDING THE 1987 CONSTITUTION
WHEREAS, there is a need for the Union of Local Authorities of the Philippines (ULAP) to adopt a
common stand on the approach to support the proposals of the People's Consultative Commission
on Charter Change;
WHEREAS, ULAP maintains its unqualified support to the agenda of Her Excellency President Gloria
Macapagal-Arroyo for constitutional reforms as embodied in the ULAP Joint Declaration for
Constitutional Reforms signed by the members of the ULAP and the majority coalition of the House
of Representatives in Manila Hotel sometime in October 2005;
WHEREAS, the People's Consultative Commission on Charter Change created by Her Excellency to
recommend amendments to the 1987 Constitution has submitted its final report sometime in
December 2005;
WHEREAS, the ULAP is mindful of the current political developments in Congress which militates
against the use of the expeditious form of amending the 1987 Constitution;
WHEREAS, subject to the ratification of its institutional members and the failure of Congress to
amend the Constitution as a constituent assembly, ULAP has unanimously agreed to pursue the
constitutional reform agenda through People's Initiative and Referendum without prejudice to other
pragmatic means to pursue the same;
WHEREFORE, BE IT RESOLVED AS IT IS HEREBY RESOLVED, THAT ALL THE MEMBERLEAGUES OF THE UNION OF LOCAL AUTHORITIES OF THE PHILIPPINES (ULAP) SUPPORT
THE PORPOSALS (SIC) OF THE PEOPLE'S CONSULATATIVE (SIC) COMMISSION ON
CHARTER CHANGE THROUGH PEOPLE'S INITIATIVE AND REFERENDUM AS A MODE OF
AMENDING THE 1987 CONSTITUTION;
DONE, during the ULAP National Executive Board special meeting held on 14 January 2006 at the
Century Park Hotel, Manila.23 (Underscoring supplied)
ULAP Resolution No. 2006-02 does not authorize petitioner Aumentado to prepare the 25 August 2006
petition, or the 30 August 2006 amended petition, filed with the COMELEC. ULAP Resolution No. 2006-02
"support(s) the porposals (sic) of the Consulatative (sic) Commission on Charter
Change through people's initiative and referendum as a mode of amending the 1987 Constitution." The
proposals of the Consultative Commission24 arevastly different from the proposed changes of the
Lambino Group in the 25 August 2006 petition or 30 August 2006 amended petition filed with the
COMELEC.
For example, the proposed revisions of the Consultative Commission affect all provisions of the existing
Constitution, from the Preamble to the Transitory Provisions. The proposed revisions have profound
impact on the Judiciary and the National Patrimony provisions of the existing Constitution, provisions that
the Lambino Group's proposed changes do not touch. The Lambino Group's proposed changes purport to
affect only Articles VI and VII of the existing Constitution, including the introduction of new Transitory
Provisions.
The ULAP adopted Resolution No. 2006-02 on 14 January 2006 or more than six months before the filing of
the 25 August 2006 petition or the 30 August 2006 amended petition with the COMELEC. However, ULAP
Resolution No. 2006-02 does not establish that ULAP or the Lambino Group caused the circulation of the
draft petition, together with the signature sheets, six months before the filing with the COMELEC. On the
contrary, ULAP Resolution No. 2006-02 casts grave doubt on the Lambino Group's claim that
they circulated the draft petition together with the signature sheets. ULAP Resolution No.
2006-02 does not refer at all to the draft petition or to the Lambino Group's proposed changes.
In their Manifestation explaining their amended petition before the COMELEC, the Lambino Group declared:
After the Petition was filed, Petitioners belatedly realized that the proposed amendments alleged in
the Petition, more specifically, paragraph 3 of Section 4 and paragraph 2 of Section 5 of the

Transitory Provisions were inaccurately stated and failed to correctly reflect their proposed
amendments.
The Lambino Group did not allege that they were amending the petition because the amended petition
was what they had shown to the people during the February to August 2006 signature-gathering. Instead,
the Lambino Group alleged that the petition of 25 August 2006 "inaccurately stated and failed to correctly
reflect their proposed amendments."
The Lambino Group never alleged in the 25 August 2006 petition or the 30 August 2006 amended
petition with the COMELEC that they circulated printed copies of the draft petition together with the
signature sheets. Likewise, the Lambino Group did not allege in their present petition before this Court
that they circulated printed copies of the draft petition together with the signature sheets. The signature
sheets do not also contain any indication that the draft petition is attached to, or circulated with, the
signature sheets.
It is only in their Consolidated Reply to the Opposition-in-Interventions that the Lambino Group first
claimed that they circulated the "petition for initiative filed with the COMELEC," thus:
[T]here is persuasive authority to the effect that "(w)here there is not (sic) fraud, a signer
who did not read the measure attached to a referendum petition cannot question his
signature on the ground that he did not understand the nature of the act." [82 C.J.S.
S128h. Mo. State v. Sullivan, 224, S.W. 327, 283 Mo. 546.] Thus, the registered voters who
signed the signature sheets circulated together with the petition for initiative filed with
the COMELEC below, are presumed to have understood the proposition contained in the petition.
(Emphasis supplied)
The Lambino Group's statement that they circulated to the people "the petition for initiative filed with
the COMELEC" appears an afterthought, made after the intervenors Integrated Bar of the Philippines
(Cebu City Chapter and Cebu Province Chapters) and Atty. Quadra had pointed out that the signature
sheets did not contain the text of the proposed changes. In their Consolidated Reply, the Lambino Group
alleged that they circulated "the petition for initiative" but failed to mention the amended petition.
This contradicts what Atty. Lambino finally stated during the oral arguments that what they circulated was
the draft of the amended petition of 30 August 2006.
The Lambino Group cites as authority Corpus Juris Secundum, stating that "a signer who did not read the
measure attached to a referendum petition cannot question his signature on the ground that he did
not understand the nature of the act." The Lambino Group quotes an authority that cites a proposed
change attachedto the petition signed by the people. Even the authority the Lambino Group quotes
requires that the proposed change must be attached to the petition. The same authority the Lambino
Group quotes requires the people to sign on the petition itself.
Indeed, it is basic in American jurisprudence that the proposed amendment must be incorporated with, or
attached to, the initiative petition signed by the people. In the present initiative, the Lambino Group's
proposed changes were not incorporated with, or attached to, the signature sheets. The Lambino Group's
citation of Corpus Juris Secundum pulls the rug from under their feet.
It is extremely doubtful that the Lambino Group prepared, printed, circulated, from February to August
2006 during the signature-gathering period, the draft of the petition or amended petition they filed later
with the COMELEC. The Lambino Group are less than candid with this Court in their belated claim that they
printed and circulated, together with the signature sheets, the petition or amended
petition. Nevertheless, even assuming the Lambino Group circulated the amended petition
during the signature-gathering period, the Lambino Group admitted circulating only very
limited copies of the petition.
During the oral arguments, Atty. Lambino expressly admitted that they printed only 100,000
copies of the draft petition they filed more than six months later with the COMELEC. Atty.
Lambino added that he also asked other supporters to print additional copies of the draft petition but he
could not state with certainty how many additional copies the other supporters printed. Atty. Lambino
could only assure this Court of the printing of 100,000 copies because he himself caused the
printing of these 100,000 copies.
Likewise, in the Lambino Group's Memorandum filed on 11 October 2006, the Lambino Group expressly
admits that "petitioner Lambino initiated the printing and reproduction of 100,000 copies of
the petition for initiative x x x."25 This admission binds the Lambino Group and establishes
beyond any doubt that the Lambino Group failed to show the full text of the proposed changes
to the great majority of the people who signed the signature sheets.
Thus, of the 6.3 million signatories, only 100,000 signatories could have received with certainty one copy
each of the petition, assuming a 100 percent distribution with no wastage. If Atty. Lambino and company
attached one copy of the petition to each signature sheet, only 100,000 signature sheets could have
circulated with the petition. Each signature sheet contains space for ten signatures. Assuming ten people

signed each of these 100,000 signature sheets with the attached petition, the maximum number of people
who saw the petition before they signed the signature sheets would not exceed 1,000,000.
With only 100,000 printed copies of the petition, it would be physically impossible for all or a great majority
of the 6.3 million signatories to have seen the petition before they signed the signature sheets. The
inescapable conclusion is that the Lambino Group failed to show to the 6.3 million signatories
the full text of the proposed changes. If ever, not more than one million signatories saw the petition
before they signed the signature sheets.
In any event, the Lambino Group's signature sheets do not contain the full text of the proposed changes,
either on the face of the signature sheets, or as attachment with an indication in the signature sheet of
such attachment.Petitioner Atty. Lambino admitted this during the oral arguments, and this
admission binds the Lambino Group. This fact is also obvious from a mere reading of the
signature sheet. This omission is fatal. The failure to so include the text of the proposed changes in
the signature sheets renders the initiative void for non-compliance with the constitutional requirement that
the amendment must be "directly proposed by the people through initiative upon a petition." The
signature sheet is not the "petition" envisioned in the initiative clause of the Constitution.
For sure, the great majority of the 6.3 million people who signed the signature sheets did not see the full
text of the proposed changes before signing. They could not have known the nature and effect of the
proposed changes, among which are:
1. The term limits on members of the legislature will be lifted and thus members of
Parliament can be re-elected indefinitely;26
2. The interim Parliament can continue to function indefinitely until its members, who are almost all
the present members of Congress, decide to call for new parliamentary elections. Thus,
the members of the interim Parliament will determine the expiration of their own term of
office; 27
3. Within 45 days from the ratification of the proposed changes, the interim Parliament shall
convene to propose further amendments or revisions to the Constitution.28
These three specific amendments are not stated or even indicated in the Lambino Group's signature
sheets. The people who signed the signature sheets had no idea that they were proposing these
amendments. These three proposed changes are highly controversial. The people could not have inferred
or divined these proposed changes merely from a reading or rereading of the contents of the signature
sheets.
During the oral arguments, petitioner Atty. Lambino stated that he and his group assured the people
during the signature-gathering that the elections for the regular Parliament would be held
during the 2007 local elections if the proposed changes were ratified before the 2007 local elections.
However, the text of the proposed changes belies this.
The proposed Section 5(2), Article XVIII on Transitory Provisions, as found in the amended petition, states:
Section 5(2). The interim Parliament shall provide for the election of the members of
Parliament, which shall be synchronized and held simultaneously with the election of all
local government officials. x x x x (Emphasis supplied)
Section 5(2) does not state that the elections for the regular Parliament will be held simultaneously with
the 2007 local elections. This section merely requires that the elections for the regular Parliament shall be
held simultaneously with the local elections without specifying the year.
Petitioner Atty. Lambino, who claims to be the principal drafter of the proposed changes, could have easily
written the word "next" before the phrase "election of all local government officials." This would have
insured that the elections for the regular Parliament would be held in the next local elections following the
ratification of the proposed changes. However, the absence of the word "next" allows the interim
Parliament to schedule the elections for the regular Parliament simultaneously with any future local
elections.
Thus, the members of the interim Parliament will decide the expiration of their own term of office. This
allows incumbent members of the House of Representatives to hold office beyond their current three-year
term of office, and possibly even beyond the five-year term of office of regular members of the
Parliament. Certainly, this is contrary to the representations of Atty. Lambino and his group to
the 6.3 million people who signed the signature sheets. Atty. Lambino and his group deceived
the 6.3 million signatories, and even the entire nation.
This lucidly shows the absolute need for the people to sign an initiative petition that contains the full text
of the proposed amendments to avoid fraud or misrepresentation. In the present initiative, the 6.3 million
signatories had to rely on the verbal representations of Atty. Lambino and his group because the

signature sheets did not contain the full text of the proposed changes. The result is a grand deception on
the 6.3 million signatories who were led to believe that the proposed changes would require the holding in
2007 of elections for the regular Parliament simultaneously with the local elections.
The Lambino Group's initiative springs another surprise on the people who signed the signature sheets.
The proposed changes mandate the interim Parliament to make further amendments or revisions to the
Constitution. The proposed Section 4(4), Article XVIII on Transitory Provisions, provides:
Section 4(4). Within forty-five days from ratification of these amendments, the interim
Parliament shall convene to propose amendments to, or revisions of, this
Constitution consistent with the principles of local autonomy, decentralization and a strong
bureaucracy. (Emphasis supplied)
During the oral arguments, Atty. Lambino stated that this provision is a "surplusage" and the Court and the
people should simply ignore it. Far from being a surplusage, this provision invalidates the Lambino Group's
initiative.
Section 4(4) is a subject matter totally unrelated to the shift from the Bicameral-Presidential to the
Unicameral-Parliamentary system. American jurisprudence on initiatives outlaws this as logrolling - when
the initiative petition incorporates an unrelated subject matter in the same petition. This puts the people in
a dilemma since they can answer only either yes or no to the entire proposition, forcing them to sign a
petition that effectively contains two propositions, one of which they may find unacceptable.
Under American jurisprudence, the effect of logrolling is to nullify the entire proposition and not only
the unrelated subject matter. Thus, in Fine v. Firestone,29 the Supreme Court of Florida declared:
Combining multiple propositions into one proposal constitutes "logrolling," which, if our
judicial responsibility is to mean anything, we cannot permit. The very broadness of the
proposed amendment amounts to logrolling because the electorate cannot know what it is voting
on - the amendment's proponents' simplistic explanation reveals only the tip of the iceberg. x x x x
The ballot must give the electorate fair notice of the proposed amendment being voted on. x x x x
The ballot language in the instant case fails to do that. The very broadness of the proposal makes it
impossible to state what it will affect and effect and violates the requirement that proposed
amendments embrace only one subject. (Emphasis supplied)
Logrolling confuses and even deceives the people. In Yute Air Alaska v. McAlpine,30 the Supreme Court
of Alaska warned against "inadvertence, stealth and fraud" in logrolling:
Whenever a bill becomes law through the initiative process, all of the problems that the single-subject rule
was enacted to prevent are exacerbated. There is a greater danger of logrolling, or the deliberate
intermingling of issues to increase the likelihood of an initiative's passage, and there is a greater
opportunity for "inadvertence, stealth and fraud" in the enactment-by-initiative process. The
drafters of an initiative operate independently of any structured or supervised process. They often
emphasize particular provisions of their proposition, while remaining silent on other (more complex or less
appealing) provisions, when communicating to the public. x x xIndeed, initiative promoters typically
use simplistic advertising to present their initiative to potential petition-signers and eventual
voters. Many voters will never read the full text of the initiative before the election. More importantly,
there is no process for amending or splitting the several provisions in an initiative proposal. These
difficulties clearly distinguish the initiative from the legislative process. (Emphasis supplied)
Thus, the present initiative appears merely a preliminary step for further amendments or revisions to be
undertaken by the interim Parliament as a constituent assembly. The people who signed the signature
sheets could not have known that their signatures would be used to propose an
amendment mandating the interim Parliament to propose further amendments or revisions to the
Constitution.
Apparently, the Lambino Group inserted the proposed Section 4(4) to compel the interim Parliament to
amend or revise again the Constitution within 45 days from ratification of the proposed changes, or
before the May 2007 elections. In the absence of the proposed Section 4(4), the interim Parliament has
the discretion whether to amend or revise again the Constitution. With the proposed Section 4(4), the
initiative proponents want the interim Parliament mandated to immediately amend or revise again the
Constitution.
However, the signature sheets do not explain the reason for this rush in amending or revising again so
soon the Constitution. The signature sheets do not also explain what specific amendments or revisions the
initiative proponents want the interim Parliament to make, and why there is a need for such further
amendments or revisions. The people are again left in the dark to fathom the nature and effect of
the proposed changes. Certainly, such an initiative is not "directly proposed by the people" because the
people do not even know the nature and effect of the proposed changes.

There is another intriguing provision inserted in the Lambino Group's amended petition of 30 August 2006.
The proposed Section 4(3) of the Transitory Provisions states:
Section 4(3). Senators whose term of office ends in 2010 shall be members of Parliament until noon
of the thirtieth day of June 2010.
After 30 June 2010, not one of the present Senators will remain as member of Parliament if the interim
Parliament does not schedule elections for the regular Parliament by 30 June 2010. However, there is no
counterpart provision for the present members of the House of Representatives even if their term of office
will all end on 30 June 2007, three years earlier than that of half of the present Senators. Thus, all the
present members of the House will remain members of the interim Parliament after 30 June 2010.
The term of the incumbent President ends on 30 June 2010. Thereafter, the Prime Minister exercises all the
powers of the President. If the interim Parliament does not schedule elections for the regular Parliament by
30 June 2010, the Prime Minister will come only from the present members of the House of
Representatives to theexclusion of the present Senators.
The signature sheets do not explain this discrimination against the Senators. The 6.3 million people
who signed the signature sheets could not have known that their signatures would be used to
discriminate against the Senators. They could not have known that their signatures would be
used to limit, after 30 June 2010, the interim Parliament's choice of Prime Minister only to
members of the existing House of Representatives.
An initiative that gathers signatures from the people without first showing to the people the full text of
the proposed amendments is most likely a deception, and can operate as a gigantic fraud on the
people. That is why the Constitution requires that an initiative must be "directly proposed by the
people x x x in a petition" - meaning that the people must sign on a petition that contains the full text
of the proposed amendments. On so vital an issue as amending the nation's fundamental law, the writing
of the text of the proposed amendments cannot be hidden from the people under a general or special
power of attorney to unnamed, faceless, and unelected individuals.
The Constitution entrusts to the people the power to directly propose amendments to the Constitution.
This Court trusts the wisdom of the people even if the members of this Court do not personally know the
people who sign the petition. However, this trust emanates from a fundamental assumption: the
full text of the proposed amendment is first shown to the people before they sign the petition,
not after they have signed the petition.
In short, the Lambino Group's initiative is void and unconstitutional because it dismally fails to comply with
the requirement of Section 2, Article XVII of the Constitution that the initiative must be "directly
proposed by the people through initiative upon a petition."
2. The Initiative Violates Section 2, Article XVII of the Constitution Disallowing Revision
through Initiatives
A people's initiative to change the Constitution applies only to an amendment of the Constitution and not
to its revision. In contrast, Congress or a constitutional convention can propose both amendments and
revisions to the Constitution. Article XVII of the Constitution provides:
ARTICLE XVII
AMENDMENTS OR REVISIONS
Sec. 1. Any amendment to, or revision of, this Constitution may be proposed by:
(1) The Congress, upon a vote of three-fourths of all its Members, or
(2) A constitutional convention.
Sec. 2. Amendments to this Constitution may likewise be directly proposed by the people
through initiative x x x. (Emphasis supplied)
Article XVII of the Constitution speaks of three modes of amending the Constitution. The first mode is
through Congress upon three-fourths vote of all its Members. The second mode is through a constitutional
convention. The third mode is through a people's initiative.
Section 1 of Article XVII, referring to the first and second modes, applies to "[A]ny amendment to, or
revision of, this Constitution." In contrast, Section 2 of Article XVII, referring to the third mode, applies only
to "[A]mendments to this Constitution." This distinction was intentional as shown by the following
deliberations of the Constitutional Commission:
MR. SUAREZ: Thank you, Madam President.

May we respectfully call the attention of the Members of the Commission that pursuant to the
mandate given to us last night, we submitted this afternoon a complete Committee Report No. 7
which embodies the proposed provision governing the matter of initiative. This is now covered by
Section 2 of the complete committee report. With the permission of the Members, may I quote
Section 2:
The people may, after five years from the date of the last plebiscite held, directly propose
amendments to this Constitution thru initiative upon petition of at least ten percent of the
registered voters.
This completes the blanks appearing in the original Committee Report No. 7. This proposal was
suggested on the theory that this matter of initiative, which came about because of the
extraordinary developments this year, has to be separated from the traditional modes of amending
the Constitution as embodied in Section 1. The committee members felt that this system of
initiative should be limited to amendments to the Constitution and should not extend to
the revision of the entire Constitution, so we removed it from the operation of Section 1
of the proposed Article on Amendment or Revision. x x x x
xxxx
MS. AQUINO: [I] am seriously bothered by providing this process of initiative as a separate section
in the Article on Amendment. Would the sponsor be amenable to accepting an amendment in terms
of realigning Section 2 as another subparagraph (c) of Section 1, instead of setting it up as another
separate section as if it were a self-executing provision?
MR. SUAREZ: We would be amenable except that, as we clarified a while ago, this process of
initiative is limited to the matter of amendment and should not expand into a revision
which contemplates a total overhaul of the Constitution. That was the sense that was
conveyed by the Committee.
MS. AQUINO: In other words, the Committee was attempting to distinguish the coverage
of modes (a) and (b) in Section 1 to include the process of revision; whereas, the
process of initiation to amend, which is given to the public, would only apply to
amendments?
MR. SUAREZ: That is right. Those were the terms envisioned in the Committee.
MS. AQUINO: I thank the sponsor; and thank you, Madam President.
xxxx
MR. MAAMBONG: My first question: Commissioner Davide's proposed amendment on line 1
refers to "amendments." Does it not cover the word "revision" as defined by
Commissioner Padilla when he made the distinction between the words "amendments"
and "revision"?
MR. DAVIDE: No, it does not, because "amendments" and "revision" should be covered by
Section 1. So insofar as initiative is concerned, it can only relate to "amendments" not
"revision."
MR. MAAMBONG: Thank you.31 (Emphasis supplied)
There can be no mistake about it. The framers of the Constitution intended, and wrote, a clear
distinction between "amendment" and "revision" of the Constitution. The framers intended, and wrote,
that only Congress or a constitutional convention may propose revisions to the Constitution. The
framers intended, and wrote, that a people's initiative may propose only amendments to the
Constitution. Where the intent and language of the Constitution clearly withhold from the people the power
to propose revisions to the Constitution, the people cannot propose revisions even as they are empowered
to propose amendments.
This has been the consistent ruling of state supreme courts in the United States. Thus, in McFadden v.
Jordan,32the Supreme Court of California ruled:
The initiative power reserved by the people by amendment to the Constitution x x x
applies only to the proposing and the adopting or rejecting of 'laws and amendments to
the Constitution' and does not purport to extend to a constitutional revision. x x x x It is
thus clear that a revision of the Constitution may be accomplished only through ratification by the
people of a revised constitution proposed by a convention called for that purpose as outlined
hereinabove. Consequently if the scope of the proposed initiative measure (hereinafter termed 'the
measure') now before us is so broad that if such measure became law a substantial revision of our
present state Constitution would be effected, then the measure may not properly be submitted to

the electorate until and unless it is first agreed upon by a constitutional convention, and the writ
sought by petitioner should issue. x x x x (Emphasis supplied)
Likewise, the Supreme Court of Oregon ruled in Holmes v. Appling:33
It is well established that when a constitution specifies the manner in which it may be amended or
revised, it can be altered by those who favor amendments, revision, or other change only through
the use of one of the specified means. The constitution itself recognizes that there is a difference
between an amendment and a revision; and it is obvious from an examination of the measure here
in question that it is not an amendment as that term is generally understood and as it is used in
Article IV, Section 1. The document appears to be based in large part on the revision of the
constitution drafted by the 'Commission for Constitutional Revision' authorized by the 1961
Legislative Assembly, x x x and submitted to the 1963 Legislative Assembly. It failed to receive in
the Assembly the two-third's majority vote of both houses required by Article XVII, Section 2, and
hence failed of adoption, x x x.
While differing from that document in material respects, the measure sponsored by the plaintiffs is,
nevertheless, a thorough overhauling of the present constitution x x x.
To call it an amendment is a misnomer.
Whether it be a revision or a new constitution, it is not such a measure as can be submitted to the
people through the initiative. If a revision, it is subject to the requirements of Article XVII, Section
2(1); if a new constitution, it can only be proposed at a convention called in the manner provided in
Article XVII, Section 1. x x x x
Similarly, in this jurisdiction there can be no dispute that a people's initiative can only propose
amendments to the Constitution since the Constitution itself limits initiatives to amendments. There can be
no deviation from the constitutionally prescribed modes of revising the Constitution. A popular clamor,
even one backed by 6.3 million signatures, cannot justify a deviation from the specific modes prescribed in
the Constitution itself.
As the Supreme Court of Oklahoma ruled in In re Initiative Petition No. 364:34
It is a fundamental principle that a constitution can only be revised or amended in the
manner prescribed by the instrument itself, and that any attempt to revise a
constitution in a manner other than the one provided in the instrument is almost
invariably treated as extra-constitutional and revolutionary. x x x x "While it is universally
conceded that the people are sovereign and that they have power to adopt a constitution and to
change their own work at will, they must, in doing so, act in an orderly manner and according to the
settled principles of constitutional law. And where the people, in adopting a constitution, have
prescribed the method by which the people may alter or amend it, an attempt to change the
fundamental law in violation of the self-imposed restrictions, is unconstitutional." x x x x (Emphasis
supplied)
This Court, whose members are sworn to defend and protect the Constitution, cannot shirk from its solemn
oath and duty to insure compliance with the clear command of the Constitution that a people's initiative
may only amend, never revise, the Constitution.
The question is, does the Lambino Group's initiative constitute an amendment or revision of the
Constitution? If the Lambino Group's initiative constitutes a revision, then the present petition should be
dismissed for being outside the scope of Section 2, Article XVII of the Constitution.
Courts have long recognized the distinction between an amendment and a revision of a constitution. One
of the earliest cases that recognized the distinction described the fundamental difference in this manner:
[T]he very term "constitution" implies an instrument of a permanent and abiding nature, and
the provisions contained therein for its revision indicate the will of the people that the
underlying principles upon which it rests, as well as the substantial entirety of the
instrument, shall be of a like permanent and abiding nature. On the other hand, the significance of
the term "amendment" implies such an addition or change within the lines of the original
instrument as will effect an improvement, or better carry out the purpose for which it was
framed.35 (Emphasis supplied)
Revision broadly implies a change that alters a basic principle in the constitution, like altering the
principle of separation of powers or the system of checks-and-balances. There is also revision if the
change alters the substantial entirety of the constitution, as when the change affects
substantial provisions of the constitution. On the other hand, amendment broadly refers to a change
that adds, reduces, or deletes without altering the basic principle involved. Revision generally
affects several provisions of the constitution, while amendment generally affects only the specific provision
being amended.

In California where the initiative clause allows amendments but not revisions to the constitution just like in
our Constitution, courts have developed a two-part test: the quantitative test and the qualitative test.
The quantitative test asks whether the proposed change is "so extensive in its provisions as to change
directly the 'substantial entirety' of the constitution by the deletion or alteration of numerous existing
provisions."36 The court examines only the number of provisions affected and does not consider the degree
of the change.
The qualitative test inquires into the qualitative effects of the proposed change in the constitution. The
main inquiry is whether the change will "accomplish such far reaching changes in the nature of our basic
governmental plan as to amount to a revision."37 Whether there is an alteration in the structure of
government is a proper subject of inquiry. Thus, "a change in the nature of [the] basic governmental plan"
includes "change in its fundamental framework or the fundamental powers of its Branches." 38 A change in
the nature of the basic governmental plan also includes changes that "jeopardize the traditional form of
government and the system of check and balances."39
Under both the quantitative and qualitative tests, the Lambino Group's initiative is a revision and not
merely an amendment. Quantitatively, the Lambino Group's proposed changes overhaul two articles Article VI on the Legislature and Article VII on the Executive - affecting a total of 105 provisions in the
entire Constitution.40Qualitatively, the proposed changes alter substantially the basic plan of government,
from presidential to parliamentary, and from a bicameral to a unicameral legislature.
A change in the structure of government is a revision of the Constitution, as when the three great co-equal
branches of government in the present Constitution are reduced into two. This alters the separation of
powers in the Constitution. A shift from the present Bicameral-Presidential system to a UnicameralParliamentary system is a revision of the Constitution. Merging the legislative and executive branches is a
radical change in the structure of government.
The abolition alone of the Office of the President as the locus of Executive Power alters the separation of
powers and thus constitutes a revision of the Constitution. Likewise, the abolition alone of one chamber of
Congress alters the system of checks-and-balances within the legislature and constitutes a revision of the
Constitution.
By any legal test and under any jurisdiction, a shift from a Bicameral-Presidential to a UnicameralParliamentary system, involving the abolition of the Office of the President and the abolition of one
chamber of Congress, is beyond doubt a revision, not a mere amendment. On the face alone of the
Lambino Group's proposed changes, it is readily apparent that the changes will radically alter the
framework of government as set forth in the Constitution. Father Joaquin Bernas, S.J., a leading
member of the Constitutional Commission, writes:
An amendment envisages an alteration of one or a few specific and separable provisions. The guiding
original intention of an amendment is to improve specific parts or to add new provisions deemed
necessary to meet new conditions or to suppress specific portions that may have become obsolete or that
are judged to be dangerous. In revision, however, the guiding original intention and plan contemplates a
re-examination of the entire document, or of provisions of the document which have over-all implications
for the entire document, to determine how and to what extent they should be altered. Thus, for instance
a switch from the presidential system to a parliamentary system would be a revision because
of its over-all impact on the entire constitutional structure. So would a switch from a bicameral
system to a unicameral system be because of its effect on other important provisions of the
Constitution.41 (Emphasis supplied)
In Adams v. Gunter,42 an initiative petition proposed the amendment of the Florida State constitution
to shift from a bicameral to a unicameral legislature. The issue turned on whether the initiative "was
defective and unauthorized where [the] proposed amendment would x x x affect several other provisions
of [the] Constitution." The Supreme Court of Florida, striking down the initiative as outside the scope of the
initiative clause, ruled as follows:
The proposal here to amend Section 1 of Article III of the 1968 Constitution to provide for a
Unicameral Legislature affects not only many other provisions of the Constitution but
provides for a change in the form of the legislative branch of government, which has been
in existence in the United States Congress and in all of the states of the nation, except one, since
the earliest days. It would be difficult to visualize a more revolutionary change. The concept
of a House and a Senate is basic in the American form of government. It would not only radically
change the whole pattern of government in this state and tear apart the whole fabric of
the Constitution, but would even affect the physical facilities necessary to carry on
government.
xxxx
We conclude with the observation that if such proposed amendment were adopted by the people at
the General Election and if the Legislature at its next session should fail to submit further
amendments to revise and clarify the numerous inconsistencies and conflicts which would result, or
if after submission of appropriate amendments the people should refuse to adopt them, simple

chaos would prevail in the government of this State. The same result would obtain from an
amendment, for instance, of Section 1 of Article V, to provide for only a Supreme Court and Circuit
Courts-and there could be other examples too numerous to detail. These examples point unerringly
to the answer.
The purpose of the long and arduous work of the hundreds of men and women and many sessions
of the Legislature in bringing about the Constitution of 1968 was to eliminate inconsistencies and
conflicts and to give the State a workable, accordant, homogenous and up-to-date document. All of
this could disappear very quickly if we were to hold that it could be amended in the manner
proposed in the initiative petition here.43 (Emphasis supplied)
The rationale of the Adams decision applies with greater force to the present petition. The Lambino
Group's initiative not only seeks a shift from a bicameral to a unicameral legislature, it also seeks to merge
the executive and legislative departments. The initiative in Adams did not even touch the executive
department.
In Adams, the Supreme Court of Florida enumerated 18 sections of the Florida Constitution that would be
affected by the shift from a bicameral to a unicameral legislature. In the Lambino Group's present
initiative, no less than 105 provisions of the Constitution would be affected based on the count of
Associate Justice Romeo J. Callejo, Sr.44 There is no doubt that the Lambino Group's present initiative seeks
far more radical changes in the structure of government than the initiative in Adams.
The Lambino Group theorizes that the difference between "amendment" and "revision" is only one of
procedure, not of substance. The Lambino Group posits that when a deliberative body drafts and
proposes changes to the Constitution, substantive changes are called "revisions" because members of
the deliberative body work full-time on the changes. However, the same substantive changes, when
proposed through an initiative, are called "amendments" because the changes are made by ordinary
people who do not make an "occupation, profession, or vocation" out of such endeavor.
Thus, the Lambino Group makes the following exposition of their theory in their Memorandum:
99. With this distinction in mind, we note that the constitutional provisions expressly provide for
both "amendment" and "revision" when it speaks of legislators and constitutional delegates, while
the same provisions expressly provide only for "amendment" when it speaks of the people. It would
seem that the apparent distinction is based on the actual experience of the people, that on one
hand the common people in general are not expected to work full-time on the matter of correcting
the constitution because that is not their occupation, profession or vocation; while on the other
hand, the legislators and constitutional convention delegates are expected to work full-time on the
same matter because that is their occupation, profession or vocation. Thus, the difference
between the words "revision" and "amendment" pertain only to the process or
procedure of coming up with the corrections, for purposes of interpreting the constitutional
provisions.
100. Stated otherwise, the difference between "amendment" and "revision" cannot
reasonably be in the substance or extent of the correction. x x x x (Underlining in the
original; boldfacing supplied)
The Lambino Group in effect argues that if Congress or a constitutional convention had drafted the same
proposed changes that the Lambino Group wrote in the present initiative, the changes would constitute a
revision of the Constitution. Thus, the Lambino Group concedes that the proposed changes in the
present initiative constitute a revision if Congress or a constitutional convention had drafted
the changes. However, since the Lambino Group as private individuals drafted the proposed changes, the
changes are merely amendments to the Constitution. The Lambino Group trivializes the serious matter of
changing the fundamental law of the land.
The express intent of the framers and the plain language of the Constitution contradict the
Lambino Group's theory. Where the intent of the framers and the language of the Constitution are clear
and plainly stated, courts do not deviate from such categorical intent and language. 45 Any theory
espousing a construction contrary to such intent and language deserves scant consideration. More so, if
such theory wreaks havoc by creating inconsistencies in the form of government established in the
Constitution. Such a theory, devoid of any jurisprudential mooring and inviting inconsistencies in the
Constitution, only exposes the flimsiness of the Lambino Group's position. Any theory advocating that a
proposed change involving a radical structural change in government does not constitute a revision justly
deserves rejection.
The Lambino Group simply recycles a theory that initiative proponents in American jurisdictions have
attempted to advance without any success. In Lowe v. Keisling,46 the Supreme Court of Oregon rejected
this theory, thus:
Mabon argues that Article XVII, section 2, does not apply to changes to the constitution proposed by
initiative. His theory is that Article XVII, section 2 merely provides a procedure by which

the legislature can propose a revision of the constitution, but it does not affect
proposed revisions initiated by the people.
Plaintiffs argue that the proposed ballot measure constitutes a wholesale change to the constitution
that cannot be enacted through the initiative process. They assert that the distinction between
amendment and revision is determined by reviewing the scope and subject matter of the proposed
enactment, and that revisions are not limited to "a formal overhauling of the constitution." They
argue that this ballot measure proposes far reaching changes outside the lines of the original
instrument, including profound impacts on existing fundamental rights and radical restructuring of
the government's relationship with a defined group of citizens. Plaintiffs assert that, because the
proposed ballot measure "will refashion the most basic principles of Oregon constitutional law," the
trial court correctly held that it violated Article XVII, section 2, and cannot appear on the ballot
without the prior approval of the legislature.
We first address Mabon's argument that Article XVII, section 2(1), does not prohibit revisions
instituted by initiative. In Holmes v. Appling, x x x, the Supreme Court concluded that a revision of
the constitution may not be accomplished by initiative, because of the provisions of Article XVII,
section 2. After reviewing Article XVII, section1, relating to proposed amendments, the court said:
"From the foregoing it appears that Article IV, Section 1, authorizes the use of the initiative as a
means of amending the Oregon Constitution, but it contains no similar sanction for its use as a
means of revising the constitution." x x x x
It then reviewed Article XVII, section 2, relating to revisions, and said: "It is the only section of the
constitution which provides the means for constitutional revision and it excludes the idea that an
individual, through the initiative, may place such a measure before the electorate." x x x x
Accordingly, we reject Mabon's argument that Article XVII, section 2, does not apply to
constitutional revisions proposed by initiative. (Emphasis supplied)
Similarly, this Court must reject the Lambino Group's theory which negates the express intent of the
framers and the plain language of the Constitution.
We can visualize amendments and revisions as a spectrum, at one end green for amendments and at the
other end red for revisions. Towards the middle of the spectrum, colors fuse and difficulties arise in
determining whether there is an amendment or revision. The present initiative is indisputably located at
the far end of the red spectrum where revision begins. The present initiative seeks a radical overhaul of
the existing separation of powers among the three co-equal departments of government, requiring farreaching amendments in several sections and articles of the Constitution.
Where the proposed change applies only to a specific provision of the Constitution without affecting any
other section or article, the change may generally be considered an amendment and not a revision. For
example, a change reducing the voting age from 18 years to 15 years 47 is an amendment and not a
revision. Similarly, a change reducing Filipino ownership of mass media companies from 100 percent to 60
percent is an amendment and not a revision.48 Also, a change requiring a college degree as an additional
qualification for election to the Presidency is an amendment and not a revision. 49
The changes in these examples do not entail any modification of sections or articles of the Constitution
other than the specific provision being amended. These changes do not also affect the structure of
government or the system of checks-and-balances among or within the three branches. These three
examples are located at the far green end of the spectrum, opposite the far red end where the revision
sought by the present petition is located.
However, there can be no fixed rule on whether a change is an amendment or a revision. A change in a
single word of one sentence of the Constitution may be a revision and not an amendment. For example,
the substitution of the word "republican" with "monarchic" or "theocratic" in Section 1, Article II 50 of the
Constitution radically overhauls the entire structure of government and the fundamental ideological basis
of the Constitution. Thus, each specific change will have to be examined case-by-case, depending on how
it affects other provisions, as well as how it affects the structure of government, the carefully crafted
system of checks-and-balances, and the underlying ideological basis of the existing Constitution.
Since a revision of a constitution affects basic principles, or several provisions of a constitution,
a deliberative body with recorded proceedings is best suited to undertake a revision. A revision
requires harmonizing not only several provisions, but also the altered principles with those that remain
unaltered. Thus, constitutions normally authorize deliberative bodies like constituent assemblies or
constitutional conventions to undertake revisions. On the other hand, constitutions allow people's
initiatives, which do not have fixed and identifiable deliberative bodies or recorded proceedings, to
undertake only amendments and not revisions.
In the present initiative, the Lambino Group's proposed Section 2 of the Transitory Provisions states:

Section 2. Upon the expiration of the term of the incumbent President and Vice President, with the
exception of Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI of the 1987 Constitution which shall hereby
be amended and Sections 18 and 24 which shall be deleted, all other Sections of Article VI are
hereby retained and renumbered sequentially as Section 2, ad seriatim up to 26, unless they are
inconsistent with the Parliamentary system of government, in which case, they shall be
amended to conform with a unicameral parliamentary form of government; x x x x
(Emphasis supplied)
The basic rule in statutory construction is that if a later law is irreconcilably inconsistent with a prior law,
the later law prevails. This rule also applies to construction of constitutions. However, the Lambino Group's
draft of Section 2 of the Transitory Provisions turns on its head this rule of construction by stating that in
case of such irreconcilable inconsistency, the earlier provision "shall be amended to conform with a
unicameral parliamentary form of government." The effect is to freeze the two irreconcilable provisions
until the earlier one "shall be amended," which requires a future separate constitutional amendment.
Realizing the absurdity of the need for such an amendment, petitioner Atty. Lambino readily conceded
during the oral arguments that the requirement of a future amendment is a "surplusage." In short, Atty.
Lambino wants to reinstate the rule of statutory construction so that the later provision automatically
prevails in case of irreconcilable inconsistency. However, it is not as simple as that.
The irreconcilable inconsistency envisioned in the proposed Section 2 of the Transitory Provisions is not
between a provision in Article VI of the 1987 Constitution and a provision in the proposed changes. The
inconsistency is between a provision in Article VI of the 1987 Constitution and the "Parliamentary
system of government," and the inconsistency shall be resolved in favor of a "unicameral
parliamentary form of government."
Now, what "unicameral parliamentary form of government" do the Lambino Group's proposed
changes refer to the Bangladeshi, Singaporean, Israeli, or New Zealand models, which are among
the few countries withunicameral parliaments? The proposed changes could not possibly refer to the
traditional and well-known parliamentary forms of government the British, French, Spanish, German,
Italian, Canadian, Australian, or Malaysian models, which have all bicameral parliaments. Did the people
who signed the signature sheets realize that they were adopting the Bangladeshi, Singaporean, Israeli, or
New Zealand parliamentary form of government?
This drives home the point that the people's initiative is not meant for revisions of the Constitution but only
for amendments. A shift from the present Bicameral-Presidential to a Unicameral-Parliamentary system
requires harmonizing several provisions in many articles of the Constitution. Revision of the Constitution
through a people's initiative will only result in gross absurdities in the Constitution.
In sum, there is no doubt whatsoever that the Lambino Group's initiative is a revision and not an
amendment. Thus, the present initiative is void and unconstitutional because it violates Section 2, Article
XVII of the Constitution limiting the scope of a people's initiative to "[A]mendments to this
Constitution."
3. A Revisit of Santiago v. COMELEC is Not Necessary
The present petition warrants dismissal for failure to comply with the basic requirements of Section 2,
Article XVII of the Constitution on the conduct and scope of a people's initiative to amend the Constitution.
There is no need to revisit this Court's ruling in Santiago declaring RA 6735 "incomplete, inadequate or
wanting in essential terms and conditions" to cover the system of initiative to amend the Constitution. An
affirmation or reversal of Santiago will not change the outcome of the present petition. Thus, this Court
must decline to revisit Santiago which effectively ruled that RA 6735 does not comply with the
requirements of the Constitution to implement the initiative clause on amendments to the Constitution.
This Court must avoid revisiting a ruling involving the constitutionality of a statute if the case before the
Court can be resolved on some other grounds. Such avoidance is a logical consequence of the well-settled
doctrine that courts will not pass upon the constitutionality of a statute if the case can be resolved on
some other grounds.51
Nevertheless, even assuming that RA 6735 is valid to implement the constitutional provision on initiatives
to amend the Constitution, this will not change the result here because the present petition violates
Section 2, Article XVII of the Constitution. To be a valid initiative, the present initiative must first
comply with Section 2, Article XVII of the Constitution even before complying with RA 6735.
Even then, the present initiative violates Section 5(b) of RA 6735 which requires that the "petition for an
initiative on the 1987 Constitution must have at least twelve per centum (12%) of the total number of
registered voters as signatories." Section 5(b) of RA 6735 requires that the people must sign
the "petition x x x as signatories."
The 6.3 million signatories did not sign the petition of 25 August 2006 or the amended petition of 30
August 2006 filed with the COMELEC. Only Atty. Lambino, Atty. Demosthenes B. Donato, and Atty.

Alberto C. Agra signed the petition and amended petition as counsels for "Raul L. Lambino and
Erico B. Aumentado, Petitioners." In the COMELEC, the Lambino Group, claiming to act "together with"
the 6.3 million signatories, merely attached the signature sheets to the petition and amended petition.
Thus, the petition and amended petition filed with the COMELEC did not even comply with the basic
requirement of RA 6735 that the Lambino Group claims as valid.
The Lambino Group's logrolling initiative also violates Section 10(a) of RA 6735 stating, "No petition
embracing more than one (1) subject shall be submitted to the electorate; x x x." The proposed
Section 4(4) of the Transitory Provisions, mandating the interim Parliament to propose further amendments
or revisions to the Constitution, is a subject matter totally unrelated to the shift in the form of government.
Since the present initiative embraces more than one subject matter, RA 6735 prohibits submission of the
initiative petition to the electorate. Thus, even if RA 6735 is valid, the Lambino Group's initiative will still
fail.
4. The COMELEC Did Not Commit Grave Abuse of Discretion in Dismissing the Lambino Group's
Initiative
In dismissing the Lambino Group's initiative petition, the COMELEC en banc merely followed this Court's
ruling inSantiago and People's Initiative for Reform, Modernization and Action (PIRMA) v.
COMELEC.52 For following this Court's ruling, no grave abuse of discretion is attributable to the COMELEC.
On this ground alone, the present petition warrants outright dismissal. Thus, this Court should reiterate
its unanimous ruling in PIRMA:
The Court ruled, first, by a unanimous vote, that no grave abuse of discretion could be attributed to
the public respondent COMELEC in dismissing the petition filed by PIRMA therein, it appearing that
it only complied with the dispositions in the Decisions of this Court in G.R. No. 127325, promulgated
on March 19, 1997, and its Resolution of June 10, 1997.
5. Conclusion
The Constitution, as the fundamental law of the land, deserves the utmost respect and obedience of all the
citizens of this nation. No one can trivialize the Constitution by cavalierly amending or revising it in blatant
violation of the clearly specified modes of amendment and revision laid down in the Constitution itself.
To allow such change in the fundamental law is to set adrift the Constitution in unchartered waters, to be
tossed and turned by every dominant political group of the day. If this Court allows today a cavalier change
in the Constitution outside the constitutionally prescribed modes, tomorrow the new dominant political
group that comes will demand its own set of changes in the same cavalier and unconstitutional fashion. A
revolving-door constitution does not augur well for the rule of law in this country.
An overwhelming majority 16,622,111 voters comprising 76.3 percent of the total votes cast 53
approved our Constitution in a national plebiscite held on 11 February 1987. That approval is the
unmistakable voice of the people, the full expression of the people's sovereign will. That
approval included the prescribed modes for amending or revising the Constitution.
No amount of signatures, not even the 6,327,952 million signatures gathered by the Lambino Group, can
change our Constitution contrary to the specific modes that the people, in their sovereign capacity,
prescribed when they ratified the Constitution. The alternative is an extra-constitutional change, which
means subverting the people's sovereign will and discarding the Constitution. This is one act the
Court cannot and should never do. As the ultimate guardian of the Constitution, this Court is sworn to
perform its solemn duty to defend and protect the Constitution, which embodies the real sovereign will of
the people.
Incantations of "people's voice," "people's sovereign will," or "let the people decide" cannot override the
specific modes of changing the Constitution as prescribed in the Constitution itself. Otherwise, the
Constitution the people's fundamental covenant that provides enduring stability to our society
becomes easily susceptible to manipulative changes by political groups gathering signatures through false
promises. Then, the Constitution ceases to be the bedrock of the nation's stability.
The Lambino Group claims that their initiative is the "people's voice." However, the Lambino Group
unabashedly states in ULAP Resolution No. 2006-02, in the verification of their petition with the COMELEC,
that "ULAP maintains its unqualified support to the agenda of Her Excellency President Gloria
Macapagal-Arroyo for constitutional reforms." The Lambino Group thus admits that their "people's"
initiative is an "unqualified support to the agenda" of the incumbent President to change the Constitution.
This forewarns the Court to be wary of incantations of "people's voice" or "sovereign will" in the present
initiative.
This Court cannot betray its primordial duty to defend and protect the Constitution. The Constitution, which
embodies the people's sovereign will, is the bible of this Court. This Court exists to defend and protect
the Constitution. To allow this constitutionally infirm initiative, propelled by deceptively gathered

signatures, to alter basic principles in the Constitution is to allow a desecration of the Constitution. To allow
such alteration and desecration is to lose this Court's raison d'etre.
WHEREFORE, we DISMISS the petition in G.R. No. 174153.
SO ORDERED.

EN BANC
G.R. No. 206510, September 16, 2014
MOST REV. PEDRO D. ARIGO, Vicar Apostolic of Puerto Princesa D.D.; MOST REV. DEOGRACIAS
S. INIGUEZ, JR., Bishop-Emeritus ofCaloocan, FRANCES Q. QUIMPO, CLEMENTE G. BAUTISTA,
JR., Kalikasan-PNE, MARIA CAROLINA P. ARAULLO, RENATO M. REYES, JR., BagongAlyansang
Makabayan, HON. NERI JAVIER COLMENARES, BayanMuna Party-list, ROLAND G. SIMBULAN,
PH.D., Junk VFAMovement, TERESITA R. PEREZ, PH.D., HON. RAYMOND V. PALATINO, Kabataan
Party-list, PETER SJ. GONZALES, Pamalakaya, GIOVANNI A. TAPANG, PH. D., Agham, ELMER C.
LABOG, Kilusang Mayo Uno, JOAN MAY E. SALVADOR, Gabriela, JOSE ENRIQUE A. AFRICA,
THERESA A. CONCEPCION, MARY JOAN A. GUAN, NESTOR T. BAGUINON, PH.D., A. EDSEL F.
TUPAZ, Petitioners, v. SCOTT H. SWIFT in his capacity as Commander of the U.S. 7th Fleet, MARK
A. RICE in his capacity as Commanding Officer of the USS Guardian,PRESIDENT BENIGNO S.
AQUINO III in his capacity as Commander-in-Chief of the Armed Forces of the Philippines, HON.
ALBERT F. DEL ROSARIO, Secretary, Department of Foreign Affairs, HON. PAQUITO OCHOA,
JR., Executive Secretary, Office of the President, HON. VOLTAIRE T. GAZMIN, Secretary,
Department of National Defense, HON. RAMON JESUS P. PAJE, Secretary, Department of
Environment and Natural Resources, VICE ADMIRAL JOSE LUIS M. ALANO, Philippine Navy Flag
Officer in Command, Armed Forces of the Philippines,ADMIRAL RODOLFO D. ISORENA,
Commandant, Philippine Coast Guard, COMMODORE ENRICO EFREN EVANGELISTA, Philippine
Coast Guard Palawan, MAJOR GEN. VIRGILIO O. DOMINGO,Commandant of Armed Forces of the
Philippines Commandand LT. GEN. TERRY G. ROBLING, US Marine Corps Forces, Pacific and
Balikatan 2013 Exercise Co-Director, Respondents.
DECISION
VILLARAMA, JR., J.:

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

The name Tubbataha came from the Samal (seafaring people of southern Philippines) language which
means long reef exposed at low tide. Tubbataha is composed of two huge coral atolls the north atoll
and the south atoll and the Jessie Beazley Reef, a smaller coral structure about 20 kilometers north of the
atolls. The reefs of Tubbataha and Jessie Beazley are considered part of Cagayancillo, a remote island
municipality of Palawan.1cralawlawlibrary
In 1988, Tubbataha was declared a National Marine Park by virtue of Proclamation No. 306 issued by
President Corazon C. Aquino on August 11, 1988. Located in the middle of Central Sulu Sea, 150 kilometers
southeast of Puerto Princesa City, Tubbataha lies at the heart of the Coral Triangle, the global center of
marine biodiversity.
In 1993, Tubbataha was inscribed by the United Nations Educational Scientific and Cultural Organization
(UNESCO) as a World Heritage Site. It was recognized as one of the Philippines oldest ecosystems,
containing excellent examples of pristine reefs and a high diversity of marine life. The 97,030-hectare
protected marine park is also an important habitat for internationally threatened and endangered marine
species. UNESCO cited Tubbatahas outstanding universal value as an important and significant natural
habitat for in situ conservation of biological diversity; an example representing significant on-going
ecological and biological processes; and an area of exceptional natural beauty and aesthetic
importance.2cralawlawlibrary
On April 6, 2010, Congress passed Republic Act (R.A.) No. 10067, 3 otherwise known as the Tubbataha
Reefs Natural Park (TRNP) Act of 2009 to ensure the protection and conservation of the globally
significant economic, biological, sociocultural, educational and scientific values of the Tubbataha Reefs into
perpetuity for the enjoyment of present and future generations. Under the no-take policy, entry into
the waters of TRNP is strictly regulated and many human activities are prohibited and penalized or fined,
including fishing, gathering, destroying and disturbing the resources within the TRNP. The law likewise
created the Tubbataha Protected Area Management Board (TPAMB) which shall be the sole policy-making
and permit-granting body of the TRNP.
The USS Guardian is an Avenger-class mine countermeasures ship of the US Navy. In December 2012, the
US Embassy in the Philippines requested diplomatic clearance for the said vessel to enter and exit the
territorial waters of the Philippines and to arrive at the port of Subic Bay for the purpose of routine ship

replenishment, maintenance, and crew liberty.4 On January 6, 2013, the ship left Sasebo, Japan for Subic
Bay, arriving on January 13, 2013 after a brief stop for fuel in Okinawa, Japan.
On January 15, 2013, the USS Guardian departed Subic Bay for its next port of call in Makassar, Indonesia.
On January 17, 2013 at 2:20 a.m. while transiting the Sulu Sea, the ship ran aground on the northwest side
of South Shoal of the Tubbataha Reefs, about 80 miles east-southeast of Palawan. No one was injured in
the incident, and there have been no reports of leaking fuel or oil.
On January 20, 2013, U.S. 7th Fleet Commander, Vice Admiral Scott Swift, expressed regret for the incident
in a press statement.5 Likewise, US Ambassador to the Philippines Harry K. Thomas, Jr., in a meeting at the
Department of Foreign Affairs (DFA) on February 4, reiterated his regrets over the grounding incident and
assured Foreign Affairs Secretary Albert F. del Rosario that the United States will provide appropriate
compensation for damage to the reef caused by the ship.6 By March 30, 2013, the US Navy-led salvage
team had finished removing the last piece of the grounded ship from the coral reef.
On April 17, 2013, the above-named petitioners on their behalf and in representation of their respective
sector/organization and others, including minors or generations yet unborn, filed the present petition
against Scott H. Swift in his capacity as Commander of the US 7 th Fleet, Mark A. Rice in his capacity as
Commanding Officer of the USS Guardian and Lt. Gen. Terry G. Robling, US Marine Corps Forces, Pacific
and Balikatan 2013 Exercises Co-Director (US respondents); President Benigno S. Aquino III in his
capacity as Commander-in-Chief of the Armed Forces of the Philippines (AFP), DFA Secretary Albert F. Del
Rosario, Executive Secretary Paquito Ochoa, Jr., Secretary Voltaire T. Gazmin (Department of National
Defense), Secretary Jesus P. Paje (Department of Environment and Natural Resources), Vice-Admiral Jose
Luis M. Alano (Philippine Navy Flag Officer in Command, AFP), Admiral Rodolfo D. Isorena (Philippine Coast
Guard Commandant), Commodore Enrico Efren Evangelista (Philippine Coast Guard-Palawan), and Major
General Virgilio O. Domingo (AFP Commandant), collectively the Philippine respondents.
The Petition

Petitioners claim that the grounding, salvaging and post-salvaging operations of the USS Guardian cause
and continue to cause environmental damage of such magnitude as to affect the provinces of Palawan,
Antique, Aklan, Guimaras, Iloilo, Negros Occidental, Negros Oriental, Zamboanga del Norte, Basilan, Sulu,
and Tawi-Tawi, which events violate their constitutional rights to a balanced and healthful ecology. They
also seek a directive from this Court for the institution of civil, administrative and criminal suits for acts
committed in violation of environmental laws and regulations in connection with the grounding incident.
Specifically, petitioners cite the following violations committed by US respondents under R.A. No. 10067:
unauthorized entry (Section 19); non-payment of conservation fees (Section 21); obstruction of law
enforcement officer (Section 30); damages to the reef (Section 20); and destroying and disturbing
resources (Section 26[g]). Furthermore, petitioners assail certain provisions of the Visiting Forces
Agreement (VFA) which they want this Court to nullify for being unconstitutional.
The numerous reliefs sought in this case are set forth in the final prayer of the petition, to
wit:chanRoblesvirtualLawlibrary
1. WHEREFORE, in view of the foregoing, Petitioners respectfully pray that the Honorable
Court:chanRoblesvirtualLawlibrary
2. Immediately issue upon the filing of this petition a Temporary Environmental Protection Order
(TEPO) and/or a Writ of Kalikasan, which shall, in particular,
a. Order Respondents and any person acting on their behalf, to cease and desist all
operations over the Guardian grounding incident;
b. Initially demarcating the metes and bounds of the damaged area as well as an additional
buffer zone;
c. Order Respondents to stop all port calls and war games under Balikatan because of the
absence of clear guidelines, duties, and liability schemes for breaches of those duties,
and require Respondents to assume responsibility for prior and future environmental
damage in general, and environmental damage under the Visiting Forces Agreement in
particular.
d. Temporarily define and describe allowable activities of ecotourism, diving, recreation, and
limited commercial activities by fisherfolk and indigenous communities near or around the
TRNP but away from the damaged site and an additional buffer zone;

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

4. After due proceedings, render a Decision which shall include, without

limitation:chanRoblesvirtualLawlibrary
a. Order Respondents Secretary of Foreign Affairs, following the dispositive portion of Nicolas v.
Romulo, to forthwith negotiate with the United States representatives for the appropriate
agreement on [environmental guidelines and environmental accountability] under Philippine
authorities as provided in Art. V[ ] of the VFA
b. Direct Respondents and appropriate agencies to commence administrative, civil, and
criminal proceedings against erring officers and individuals to the full extent of the law, and
to make such proceedings public;
c. Declare that Philippine authorities may exercise primary and exclusive criminal jurisdiction
over erring U.S. personnel under the circumstances of this case;
d. Require Respondents to pay just and reasonable compensation in the settlement of all
meritorious claims for damages caused to the Tubbataha Reef on terms and conditions no
less severe than those applicable to other States, and damages for personal injury or death,
if such had been the case;
e. Direct Respondents to cooperate in providing for the attendance of witnesses and in the
collection and production of evidence, including seizure and delivery of objects connected
with the offenses related to the grounding of theGuardian;
f.

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

g. Restrain Respondents from proceeding with any purported restoration, repair, salvage or
post salvage plan or plans, including cleanup plans covering the damaged area of the
Tubbataha Reef absent a just settlement approved by the Honorable Court;
h. Require Respondents to engage in stakeholder and LGU consultations in accordance with the
Local Government Code and R.A. 10067;
i.

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

j.

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

grounding of the Guardian in light of Respondents experience in the Port Royale grounding
in 2009, among other similar grounding incidents;

k. Require Respondents to regularly publish on a quarterly basis and in the name of

transparency and accountability such environmental damage assessment, valuation, and
valuation methods, in all stages of negotiation;
l.

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

m. Order the Department of Foreign Affairs, Department of National Defense, and the
Department of Environment and Natural Resources to review the Visiting Forces Agreement
and the Mutual Defense Treaty to consider whether their provisions allow for the exercise of
erga omnes rights to a balanced and healthful ecology and for damages which follow from
any violation of those rights;
n. Narrowly tailor the provisions of the Visiting Forces Agreement for purposes of protecting the
damaged areas of TRNP;
o. Declare the grant of immunity found in Article V (Criminal Jurisdiction) and Article VI of the
Visiting Forces Agreement unconstitutional for violating equal protection and/or for violating
the preemptory norm of nondiscrimination incorporated as part of the law of the land under
Section 2, Article II, of the Philippine Constitution;
p. Allow for continuing discovery measures;
q. Supervise marine wildlife rehabilitation in the Tubbataha Reefs in all other respects; and

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

Since only the Philippine respondents filed their comment8 to the petition, petitioners also filed a motion
for early resolution and motion to proceed ex parte against the US respondents.9cralawlawlibrary
Respondents Consolidated Comment

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

As a preliminary matter, there is no dispute on the legal standing of petitioners to file the present petition.
Locus standi is a right of appearance in a court of justice on a given question. 10 Specifically, it is a
partys personal and substantial interest in a case where he has sustained or will sustain direct injury as a
result of the act being challenged, and calls for more than just a generalized grievance. 11 However, the
rule on standing is a procedural matter which this Court has relaxed for non-traditional plaintiffs like
ordinary citizens, taxpayers and legislators when the public interest so requires, such as when the subject
matter of the controversy is of transcendental importance, of overreaching significance to society, or of
paramount public interest.12cralawlawlibrary
In the landmark case of Oposa v. Factoran, Jr.,13 we recognized the public right of citizens to a balanced
and healthful ecology which, for the first time in our constitutional history, is solemnly incorporated in the
fundamental law. We declared that the right to a balanced and healthful ecology need not be written in
the Constitution for it is assumed, like other civil and political rights guaranteed in the Bill of Rights, to
exist from the inception of mankind and it is an issue of transcendental importance with intergenerational
implications. Such right carries with it the correlative duty to refrain from impairing the
environment.14cralawlawlibrary
On the novel element in the class suit filed by the petitioners minors in Oposa, this Court ruled that not
only do ordinary citizens have legal standing to sue for the enforcement of environmental rights, they can
do so in representation of their own and future generations. Thus:chanRoblesvirtualLawlibrary
Petitioners minors assert that they represent their generation as well as generations yet unborn. We find
no difficulty in ruling that they can, for themselves, for others of their generation and for the succeeding
generations, file a class suit. Their personality to sue in behalf of the succeeding generations can
only be based on the concept of intergenerational responsibility insofar as the right to a
balanced and healthful ecology is concerned. Such a right, as hereinafter expounded, considers the
rhythm and harmony of nature.Nature means the created world in its entirety. Such rhythm and harmony
indispensably include, inter alia, the judicious disposition, utilization, management, renewal and
conservation of the countrys forest, mineral, land, waters, fisheries, wildlife, off-shore areas and other
natural resources to the end that their exploration, development and utilization be equitably accessible to
the present as well as future generations. Needless to say, every generation has a responsibility to the
next to preserve that rhythm and harmony for the full enjoyment of a balanced and healthful ecology. Put a
little differently, the minors assertion of their right to a sound environment constitutes, at the same time,
the performance of their obligation to ensure the protection of that right for the generations to
come.15 (Emphasis supplied.)

The liberalization of standing first enunciated in Oposa, insofar as it refers to minors and generations yet
unborn, is now enshrined in the Rules which allows the filing of a citizen suit in environmental cases. The
provision on citizen suits in the Rules collapses the traditional rule on personal and direct interest, on the
principle that humans are stewards of nature.16cralawlawlibrary
Having settled the issue of locus standi, we shall address the more fundamental question of whether this
Court has jurisdiction over the US respondents who did not submit any pleading or manifestation in this
case.
The immunity of the State from suit, known also as the doctrine of sovereign immunity or non-suability of
the State,17 is expressly provided in Article XVI of the 1987 Constitution which
states:chanRoblesvirtualLawlibrary

Section 3. The State may not be sued without its consent.

In United States of America v. Judge Guinto,18 we discussed the principle of state immunity from suit, as
follows:chanRoblesvirtualLawlibrary
The rule that a state may not be sued without its consent, now expressed in Article XVI, Section 3, of the
1987 Constitution, is one of the generally accepted principles of international law that we have adopted as
part of the law of our land under Article II, Section 2. x x x.
Even without such affirmation, we would still be bound by the generally accepted principles of international
law under the doctrine of incorporation. Under this doctrine, as accepted by the majority of states, such
principles are deemed incorporated in the law of every civilized state as a condition and consequence of its
membership in the society of nations. Upon its admission to such society, the state is automatically
obligated to comply with these principles in its relations with other states.
As applied to the local state, the doctrine of state immunity is based on the justification given by Justice
Holmes that there can be no legal right against the authority which makes the law on which the right
depends.[Kawanakoa v. Polybank, 205 U.S. 349] There are other practical reasons for the enforcement of
the doctrine. In the case of the foreign state sought to be impleaded in the local jurisdiction, the
added inhibition is expressed in the maxim par in parem, non habet imperium. All states are
sovereign equals and cannot assert jurisdiction over one another. A contrary disposition
would, in the language of a celebrated case, unduly vex the peace of nations. [De Haber v.
Queen of Portugal, 17 Q. B. 171]
While the doctrine appears to prohibit only suits against the state without its consent, it isalso applicable
to complaints filed against officials of the state for acts allegedly performed by them in the
discharge of their duties. The rule is that if the judgment against such officials will require the state
itself to perform an affirmative act to satisfy the same, such as the appropriation of the amount needed to
pay the damages awarded against them, the suit must be regarded as against the state itself although it
has not been formally impleaded. [Garcia v. Chief of Staff, 16 SCRA 120] In such a situation, the state may
move to dismiss the complaint on the ground that it has been filed without its consent. 19(Emphasis
supplied.)

Under the American Constitution, the doctrine is expressed in the Eleventh Amendment which
reads:chanRoblesvirtualLawlibrary
The Judicial power of the United States shall not be construed to extend to any suit in law or equity,
commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or
Subjects of any Foreign State.
In the case of Minucher v. Court of Appeals,20 we further expounded on the immunity of foreign states from
the jurisdiction of local courts, as follows:chanRoblesvirtualLawlibrary
The precept that a State cannot be sued in the courts of a foreign state is a long-standing rule of
customary international law then closely identified with the personal immunity of a foreign sovereign from
suit and, with the emergence of democratic states, made to attach not just to the person of the head of
state, or his representative, but also distinctly to the state itself in its sovereign capacity. If the acts
giving rise to a suit are those of a foreign government done by its foreign agent, although not
necessarily a diplomatic personage, but acting in his official capacity, the complaint could be
barred by the immunity of the foreign sovereign from suit without its consent.Suing a
representative of a state is believed to be, in effect, suing the state itself. The proscription is not accorded
for the benefit of an individual but for the State, in whose service he is, under the maxim - par in parem,
non habet imperium - thatall states are sovereign equals and cannot assert jurisdiction over one another.
The implication, in broad terms, is that if the judgment against an official would require the state itself to
perform an affirmative act to satisfy the award, such as the appropriation of the amount needed to pay the
damages decreed against him, the suit must be regarded as being against the state itself, although it has
not been formally impleaded.21 (Emphasis supplied.)

In the same case we also mentioned that in the case of diplomatic immunity, the privilege is not an
immunity from the observance of the law of the territorial sovereign or from ensuing legal liability; it is,
rather, an immunity from the exercise of territorial jurisdiction. 22cralawlawlibrary
In United States of America v. Judge Guinto,23 one of the consolidated cases therein involved a Filipino
employed at Clark Air Base who was arrested following a buy-bust operation conducted by two officers of
the US Air Force, and was eventually dismissed from his employment when he was charged in court for
violation of R.A. No. 6425. In a complaint for damages filed by the said employee against the military
officers, the latter moved to dismiss the case on the ground that the suit was against the US Government
which had not given its consent. The RTC denied the motion but on a petition for certiorari and prohibition
filed before this Court, we reversed the RTC and dismissed the complaint. We held that petitioners US
military officers were acting in the exercise of their official functions when they conducted the buy-bust

operation against the complainant and thereafter testified against him at his trial. It follows that for
discharging their duties as agents of the United States, they cannot be directly impleaded for acts
imputable to their principal, which has not given its consent to be sued.
This traditional rule of State immunity which exempts a State from being sued in the courts of another
State without the formers consent or waiver has evolved into a restrictive doctrine which distinguishes
sovereign and governmental acts (jure imperii) from private, commercial and proprietary acts (jure
gestionis). Under the restrictive rule of State immunity, State immunity extends only to acts jure imperii.
The restrictive application of State immunity is proper only when the proceedings arise out of commercial
transactions of the foreign sovereign, its commercial activities or economic affairs. 24cralawlawlibrary
In Shauf v. Court of Appeals,25 we discussed the limitations of the State immunity principle,
thus:chanRoblesvirtualLawlibrary
It is a different matter where the public official is made to account in his capacity as such for
acts contrary to law and injurious to the rights of plaintiff. As was clearly set forth by Justice
Zaldivar in Director of the Bureau of Telecommunications, et al. vs. Aligaen, etc., et al.: Inasmuch as the
State authorizes only legal acts by its officers, unauthorized acts of government officials or officers are not
acts of the State, and an action against the officials or officers by one whose rights have been invaded or
violated by such acts, for the protection of his rights, is not a suit against the State within the rule of
immunity of the State from suit. In the same tenor, it has been said that an action at law or suit in equity
against a State officer or the director of a State department on the ground that, while claiming to act for
the State, he violates or invades the personal and property rights of the plaintiff, under an unconstitutional
act or under an assumption of authority which he does not have, is not a suit against the State within the
constitutional provision that the State may not be sued without its consent. The rationale for this ruling is
that the doctrine of state immunity cannot be used as an instrument for perpetrating an injustice.
xxxx
The aforecited authorities are clear on the matter. They state that the doctrine of immunity from suit
will not apply and may not be invoked where the public official is being sued in his private and
personal capacity as an ordinary citizen. The cloak of protection afforded the officers and agents of
the government is removed the moment they are sued in their individual capacity. This situation usually
arises where the public official acts without authority or in excess of the powers vested in him. It is a wellsettled principle of law that a public official may be liable in his personal private capacity for
whatever damage he may have caused by his act done with malice and in bad faith, or beyond
the scope of his authority or jurisdiction.26 (Emphasis supplied.)

In this case, the US respondents were sued in their official capacity as commanding officers of the US Navy
who had control and supervision over the USS Guardian and its crew. The alleged act or omission resulting
in the unfortunate grounding of the USS Guardian on the TRNP was committed while they were performing
official military duties. Considering that the satisfaction of a judgment against said officials will require
remedial actions and appropriation of funds by the US government, the suit is deemed to be one against
the US itself. The principle of State immunity therefore bars the exercise of jurisdiction by this Court over
the persons of respondents Swift, Rice and Robling.
During the deliberations, Senior Associate Justice Antonio T. Carpio took the position that the conduct of
the US in this case, when its warship entered a restricted area in violation of R.A. No. 10067 and caused
damage to the TRNP reef system, brings the matter within the ambit of Article 31 of the United Nations
Convention on the Law of the Sea (UNCLOS). He explained that while historically, warships enjoy sovereign
immunity from suit as extensions of their flag State, Art. 31 of the UNCLOS creates an exception to this
rule in cases where they fail to comply with the rules and regulations of the coastal State regarding
passage through the latters internal waters and the territorial sea.
According to Justice Carpio, although the US to date has not ratified the UNCLOS, as a matter of longstanding policy the US considers itself bound by customary international rules on the traditional uses of
the oceans as codified in UNCLOS, as can be gleaned from previous declarations by former Presidents
Reagan and Clinton, and the US judiciary in the case of United States v. Royal Caribbean Cruise Lines,
Ltd.27cralawlawlibrary
The international law of the sea is generally defined as a body of treaty rules and customary norms
governing the uses of the sea, the exploitation of its resources, and the exercise of jurisdiction over
maritime regimes. It is a branch of public international law, regulating the relations of states with respect
to the uses of the oceans.28 The UNCLOS is a multilateral treaty which was opened for signature on
December 10, 1982 at Montego Bay, Jamaica. It was ratified by the Philippines in 1984 but came into force
on November 16, 1994 upon the submission of the 60th ratification.
The UNCLOS is a product of international negotiation that seeks to balance State sovereignty (mare
clausum) and the principle of freedom of the high seas (mare liberum).29 The freedom to use the worlds
marine waters is one of the oldest customary principles of international law. 30 The UNCLOS gives to the
coastal State sovereign rights in varying degrees over the different zones of the sea which are: 1) internal
waters, 2) territorial sea, 3) contiguous zone, 4) exclusive economic zone, and 5) the high seas. It also

gives coastal States more or less jurisdiction over foreign vessels depending on where the vessel is
located.31cralawlawlibrary
Insofar as the internal waters and territorial sea is concerned, the Coastal State exercises sovereignty,
subject to the UNCLOS and other rules of international law. Such sovereignty extends to the air space over
the territorial sea as well as to its bed and subsoil.32cralawlawlibrary
In the case of warships,33 as pointed out by Justice Carpio, they continue to enjoy sovereign immunity
subject to the following exceptions:chanRoblesvirtualLawlibrary
Article 30
Non-compliance by warships with the laws and regulations
of the coastal State

If any warship does not comply with the laws and regulations of the coastal State concerning passage
through the territorial sea and disregards any request for compliance therewith which is made to it, the
coastal State may require it to leave the territorial sea immediately.
Article 31
Responsibility of the flag State for damage caused by a warship
or other government ship operated for non-commercial purposes

The flag State shall bear international responsibility for any loss or damage to the coastal State
resulting from the non-compliance by a warship or other government ship operated for noncommercial purposes with the laws and regulations of the coastal State concerning passage
through the territorial seaor with the provisions of this Convention or other rules of international law.
Article 32
Immunities of warships and other government ships
operated for non-commercial purposes

With such exceptions as are contained in subsection A and in articles 30 and 31, nothing in this Convention
affects the immunities of warships and other government ships operated for non-commercial purposes.
(Emphasis supplied.)

A foreign warships unauthorized entry into our internal waters with resulting damage to marine resources
is one situation in which the above provisions may apply.But what if the offending warship is a non-party to
the UNCLOS, as in this case, the US?
An overwhelming majority over 80% -- of nation states are now members of UNCLOS, but despite this the
US, the worlds leading maritime power, has not ratified it.
While the Reagan administration was instrumental in UNCLOS' negotiation and drafting, the U.S. delegation
ultimately voted against and refrained from signing it due to concerns over deep seabed mining
technology transfer provisions contained in Part XI. In a remarkable, multilateral effort to induce U.S.
membership, the bulk of UNCLOS member states cooperated over the succeeding decade to revise the
objectionable provisions. The revisions satisfied the Clinton administration, which signed the revised Part XI
implementing agreement in 1994. In the fall of 1994, President Clinton transmitted UNCLOS and the Part XI
implementing agreement to the Senate requesting its advice and consent. Despite consistent support
from President Clinton, each of his successors, and an ideologically diverse array of stakeholders, the
Senate has since withheld the consent required for the President to internationally bind the United States
to UNCLOS.
While UNCLOS cleared the Senate Foreign Relations Committee (SFRC) during the 108th and 110th
Congresses, its progress continues to be hamstrung by significant pockets of political ambivalence over
U.S. participation in international institutions. Most recently, 111 th Congress SFRC Chairman Senator John
Kerry included voting out UNCLOS for full Senate consideration among his highest priorities. This did not
occur, and no Senate action has been taken on UNCLOS by the 112 th Congress.34chanrobleslaw

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

states in their internal waters, such as the Sulu Sea in this case.
As to the non-ratification by the US, Justice Carpio emphasizes that the US refusal to join the UNCLOS
was centered on its disagreement with UNCLOS regime of deep seabed mining (Part XI) which considers
the oceans and deep seabed commonly owned by mankind, pointing out that such has nothing to do
with its [the US] acceptance of customary international rules on navigation.
It may be mentioned that even the US Navy Judge Advocate Generals Corps publicly endorses the
ratification of the UNCLOS, as shown by the following statement posted on its official
website:chanRoblesvirtualLawlibrary
The Convention is in the national interest of the United States because it establishes stable maritime
zones, including a maximum outer limit for territorial seas; codifies innocent passage, transit passage, and
archipelagic sea lanes passage rights; works against jurisdictional creep by preventing coastal nations
from expanding their own maritime zones; and reaffirms sovereign immunity of warships, auxiliaries and
government aircraft.
xxxx
Economically, accession to the Convention would support our national interests by enhancing the ability of
the US to assert its sovereign rights over the resources of one of the largest continental shelves in the
world. Further, it is the Law of the Sea Convention that first established the concept of a maritime
Exclusive Economic Zone out to 200 nautical miles, and recognized the rights of coastal states to conserve
and manage the natural resources in this Zone.35chanrobleslaw

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

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

In fine, the relevance of UNCLOS provisions to the present controversy is beyond dispute. Although the
said treaty upholds the immunity of warships from the jurisdiction of Coastal States while navigating the
latters territorial sea, the flag States shall be required to leave the territorial sea immediately if they flout
the laws and regulations of the Coastal State, and they will be liable for damages caused by their warships
or any other government vessel operated for non-commercial purposes under Article 31.
Petitioners argue that there is a waiver of immunity from suit found in the VFA. Likewise, they invoke
federal statutes in the US under which agencies of the US have statutorily waived their immunity to any
action. Even under the common law tort claims, petitioners asseverate that the US respondents are liable
for negligence, trespass and nuisance.
We are not persuaded.
The VFA is an agreement which defines the treatment of United States troops and personnel visiting the
Philippines to promote common security interests between the US and the Philippines in the region. It
provides for the guidelines to govern such visits of military personnel, and further defines the rights of the
United States and the Philippine government in the matter of criminal jurisdiction, movement of vessel and
aircraft, importation and exportation of equipment, materials and supplies. 36 The invocation of US federal
tort laws and even common law is thus improper considering that it is the VFA which governs disputes
involving US military ships and crew navigating Philippine waters in pursuance of the objectives of the
agreement.
As it is, the waiver of State immunity under the VFA pertains only to criminal jurisdiction and not to special
civil actions such as the present petition for issuance of a writ of Kalikasan. In fact, it can be inferred from
Section 17, Rule 7 of the Rules that a criminal case against a person charged with a violation of an
environmental law is to be filed separately:chanRoblesvirtualLawlibrary

Sec. 17. Institution of separate actions.The filing of a petition for the issuance of the writ
of kalikasan shall not preclude the filing of separate civil, criminal or administrative actions.

In any case, it is our considered view thata ruling on the application or non-application of criminal
jurisdiction provisions of the VFA to US personnel who may be found responsible for the grounding of
theUSS Guardian, would be premature and beyond the province of a petition for a writ of Kalikasan. We
also find it unnecessary at this point to determine whether such waiver of State immunity is indeed
absolute. In the same vein, we cannot grant damages which have resulted from the violation of
environmental laws. The Rules allows the recovery of damages, including the collection of administrative
fines under R.A. No. 10067, in a separate civil suit or that deemed instituted with the criminal action
charging the same violation of an environmental law.37cralawlawlibrary
Section 15, Rule 7 enumerates the reliefs which may be granted in a petition for issuance of a writ
ofKalikasan, to wit:chanRoblesvirtualLawlibrary
Sec. 15. Judgment.Within sixty (60) days from the time the petition is submitted for decision, the court
shall render judgment granting or denying the privilege of the writ ofkalikasan.
The reliefs that may be granted under the writ are the following:chanRoblesvirtualLawlibrary
(a) Directing respondent to permanently cease and desist from committing acts or neglecting the
performance of a duty in violation of environmental laws resulting in environmental destruction or damage;
(b) Directing the respondent public official, government agency, private person or entity to protect,
preserve,rehabilitate or restore the environment;
(c) Directing the respondent public official, government agency, private person or entity to monitor strict
compliance with the decision and orders of the court;
(d) Directing the respondent public official, government agency, or private person or entity to make
periodic reports on the execution of the final judgment; and
(e) Such other reliefs which relate to the right of the people to a balanced and healthful ecology or to the
protection,preservation, rehabilitation or restoration of the environment,except the award of damages
to individual petitioners. (Emphasis supplied.)

We agree with respondents (Philippine officials) in asserting that this petition has become moot in the
sense that the salvage operation sought to be enjoined or restrained had already been accomplished when
petitioners sought recourse from this Court. But insofar as the directives to Philippine respondents to
protect and rehabilitate the coral reef structure and marine habitat adversely affected by the grounding
incident are concerned, petitioners are entitled to these reliefs notwithstanding the completion of the
removal of the USS Guardian from the coral reef.
However, we are mindful of the fact that the US and Philippine governments both expressed readiness to
negotiate and discuss the matter of compensation for the damage caused by the USS Guardian. The US
Embassy has also declared it is closely coordinating with local scientists and experts in assessing the
extent of the damage and appropriate methods of rehabilitation.
Exploring avenues for settlement of environmental cases is not proscribed by the Rules. As can be gleaned
from the following provisions, mediation and settlement are available for the consideration of the parties,
and which dispute resolution methods are encouraged by the court, to wit:chanRoblesvirtualLawlibrary
RULE 3

xxxx
Sec. 3. Referral to mediation.At the start of the pre-trial conference, the court shall inquire from
the parties if they have settled the dispute; otherwise, the court shall immediately refer the parties
or their counsel, if authorized by their clients, to the Philippine Mediation Center (PMC) unit for
purposes of mediation. If not available, the court shall refer the case to the clerk of court or legal
researcher for mediation.
Mediation must be conducted within a non-extendible period of thirty (30) days from receipt of
notice of referral to mediation.
The mediation report must be submitted within ten (10) days from the expiration of the 30-day
period.

Sec. 4. Preliminary conference.If mediation fails, the court will schedule the continuance of the
pre-trial. Before the scheduled date of continuance, the court may refer the case to the branch clerk
of court for a preliminary conference for the following purposes:chanRoblesvirtualLawlibrary
(a) To assist the parties in reaching a settlement;
xxxx
Sec. 5. Pre-trial conference; consent decree.The judge shall put the parties and their counsels
under oath, and they shall remain under oath in all pre-trial conferences.
The judge shall exert best efforts to persuade the parties to arrive at a settlement of the dispute.
The judge may issue a consent decree approving the agreement between the parties in accordance
with law, morals, public order and public policy to protect the right of the people to a balanced and
healthful ecology.
xxxx
Sec. 10. Efforts to settle.The court shall endeavor to make the parties to agree to compromise or
settle in accordance with law at any stage of the proceedings before rendition of
judgment. (Underscoring supplied.)

The Court takes judicial notice of a similar incident in 2009 when a guided-missile cruiser, the USS Port
Royal, ran aground about half a mile off the Honolulu Airport Reef Runway and remained stuck for four
days. After spending $6.5 million restoring the coral reef, the US government was reported to have paid
the State of Hawaii $8.5 million in settlement over coral reef damage caused by the
grounding.38cralawlawlibrary
To underscore that the US government is prepared to pay appropriate compensation for the damage
caused by the USS Guardian grounding, the US Embassy in the Philippines has announced the formation of
a US interdisciplinary scientific team which will initiate discussions with the Government of the Philippines
to review coral reef rehabilitation options in Tubbataha, based on assessments by Philippine-based marine
scientists. The US team intends to help assess damage and remediation options, in coordination with the
Tubbataha Management Office, appropriate Philippine government entities, non-governmental
organizations, and scientific experts from Philippine universities. 39cralawlawlibrary
A rehabilitation or restoration program to be implemented at the cost of the violator is also a major relief
that may be obtained under a judgment rendered in a citizens suit under
the Rules, viz:chanRoblesvirtualLawlibrary
RULE 5

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

In the light of the foregoing, the Court defers to the Executive Branch on the matter of compensation and
rehabilitation measures through diplomatic channels. Resolution of these issues impinges on our relations
with another State in the context of common security interests under the VFA. It is settled that [t]he
conduct of the foreign relations of our government is committed by the Constitution to the executive and
legislativethe political--departments of the government, and the propriety of what may be done in the
exercise of this political power is not subject to judicial inquiry or decision. 40cralawlawlibrary
On the other hand, we cannot grant the additional reliefs prayed for in the petition to order a review of the
VFA and to nullify certain immunity provisions thereof.
As held in BAYAN (Bagong Alyansang Makabayan) v. Exec. Sec. Zamora,41 the VFA was duly concurred in by
the Philippine Senate and has been recognized as a treaty by the United States as attested and certified by
the duly authorized representative of the United States government. The VFA being a valid and binding
agreement, the parties are required as a matter of international law to abide by its terms and
provisions.42 The present petition under the Rules is not the proper remedy to assail the constitutionality
of its provisions.
WHEREFORE, the petition for the issuance of the privilege of the Writ of Kalikasan is hereby DENIED.
No pronouncement as to costs.
SO ORDERED.

EN BANC
G.R. No. 180771, April 21, 2015
RESIDENT MARINE MAMMALS OF THE PROTECTED SEASCAPE TANON STRAIT, E.G., TOOTHED
WHALES, DOLPHINS, PORPOISES, AND OTHER CETACEAN SPECIES, JOINED IN AND
REPRESENTED HEREIN BY HUMAN BEINGS GLORIA ESTENZO RAMOS AND ROSE-LIZA EISMAOSORIO, IN THEIR CAPACITY AS LEGAL GUARDIANS OF THE LESSER LIFE-FORMS AND AS
RESPONSIBLE STEWARDS OF GOD'S CREATIONS, Petitioners, v. SECRETARY ANGELO REYES, IN
HIS CAPACITY AS SECRETARY OF THE DEPARTMENT OF ENERGY (DOE), SECRETARY JOSE L.
ATIENZA, IN HIS CAPACITY AS SECRETARY OF THE DEPARTMENT OF ENVIRONMENT AND
NATURAL RESOURCES (DENR), LEONARDO R. SIBBALUCA, DENR REGIONAL DIRECTOR-REGION
VII AND IN HIS CAPACITY AS CHAIRPERSON OF THE TANON STRAIT PROTECTED SEASCAPE
MANAGEMENT BOARD, BUREAU OF FISHERIES AND AQUATIC RESOURCES (BFAR), DIRECTOR
MALCOLM I. SARMIENTO, JR., BFAR REGIONAL DIRECTOR FOR REGION VII ANDRES M. BOJOS,
JAPAN PETROLEUM EXPLORATION CO., LTD. (JAPEX), AS REPRESENTED BY ITS PHILIPPINE
AGENT, SUPPLY OILFIELD SERVICES, INC., Respondents.
G.R. No. 181527
CENTRAL VISAYAS FISHERFOLK DEVELOPMENT CENTER (FIDEC), CERILO D. ENGARCIAL, RAMON
YANONG, FRANCISCO LABID, IN THEIR PERSONAL CAPACITY AND AS REPRESENTATIVES OF THE
SUBSISTENCE FISHERFOLKS OF THE MUNICIPALITIES OF ALOGUINSAN AND PINAMUNGAJAN,
CEBU, AND THEIR FAMILIES, AND THE PRESENT AND FUTURE GENERATIONS OF FILIPINOS
WHOSE RIGHTS ARE SIMILARLY AFFECTED, Petitioners, v.SECRETARY ANGELO REYES, IN HIS
CAPACITY AS SECRETARY OF THE DEPARTMENT OF ENERGY (DOE), JOSE L. ATIENZA, IN HIS
CAPACITY AS SECRETARY OF THE DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES
(DENR), LEONARDO R. SIBBALUCA, IN HIS CAPACITY AS DENR REGIONAL DIRECTOR-REGION VII
AND AS CHAIRPERSON OF THE TAON STRAIT PROTECTED SEASCAPE MANAGEMENT BOARD,
ALAN ARRANGUEZ, IN HIS CAPACITY AS DIRECTOR ENVIRONMENTAL MANAGEMENT BUREAUREGION VII, DOE REGIONAL DIRECTOR FOR REGION VIII1 ANTONIO LABIOS, JAPAN PETROLEUM
EXPLORATION CO., LTD. (JAPEX), AS REPRESENTED BY ITS PHILIPPINE AGENT, SUPPLY OILFIELD
SERVICES, INC.,Respondent.
DECISION
LEONARDO-DE CASTRO, J.:
Before Us are two consolidated Petitions filed under Rule 65 of the 1997 Rules of Court, concerningService
Contract No. 46 (SC-46), which allowed the exploration, development, and exploitation of petroleum
resources within Taon Strait, a narrow passage of water situated between the islands of Negros and
Cebu.2
The Petition docketed as G.R. No. 180771 is an original Petition for Certiorari, Mandamus, and Injunction,
which seeks to enjoin respondents from implementing SC-46 and to have it nullified for willful and gross
violation of the 1987 Constitution and certain international and municipal laws. 3
Likewise, the Petition docketed as G.R. No. 181527 is an original Petition for Certiorari, Prohibition,
andMandamus, which seeks to nullify the Environmental Compliance Certificate (ECC) issued by the
Environmental Management Bureau (EMB) of the Department of Environment and Natural Resources
(DENR), Region VII in connection with SC-46; to prohibit respondents from implementing SC-46; and to
compel public respondents to provide petitioners access to the pertinent documents involving the Taon
Strait Oil Exploration Project.4
ANTECEDENT FACTS AND PROCEEDINGS

Petitioners in G.R. No. 180771, collectively referred to as the "Resident Marine Mammals" in the petition,
are the toothed whales, dolphins, porpoises, and other cetacean species, which inhabit the waters in and
around the Taon Strait. They are joined by Gloria Estenzo Ramos (Ramos) and Rose-Liza Eisma-Osorio
(Eisma-Osorio) as their legal guardians and as friends (to be collectively known as "the Stewards") who
allegedly empathize with, and seek the protection of, the aforementioned marine species. Also impleaded
as an unwilling co-petitioner is former President Gloria Macapagal-Arroyo, for her express declaration and
undertaking in the ASEAN Charter to protect the Taon Strait, among others. 5
Petitioners in G.R. No. 181527 are the Central Visayas Fisherfolk Development Center (FIDEC), a non-stock,
non-profit, non-governmental organization, established for the welfare of the marginal fisherfolk in Region
VII; and Cerilo D. Engarcial (Engarcial), Ramon Yanong (Yanong) and Francisco Labid (Labid), in their
personal capacities and as representatives of the subsistence fisherfolk of the municipalities of Aloguinsan
and Pinamungajan, Cebu.

Named as respondents in both petitions are the late Angelo T. Reyes, as then Secretary of the Department
of Energy (DOE); Jose L. Atienza, as then Secretary of the DENR; Leonardo R. Sibbaluca, as then DENRRegional Director for Region VII and Chairman of the Taon Strait Protected Seascape Management Board;
Japan Petroleum Exploration Co., Ltd. (JAPEX), a company organized and existing under the laws of Japan
with a Philippine branch office; and Supply Oilfield Services, Inc. (SOS), as the alleged Philippine agent of
JAPEX.
In G.R. No. 181527, the following were impleaded as additional public respondents: Alan C. Arranguez
(Arranguez) and Antonio Labios (Labios), in their capacities as then Director of the EMB, Region VII and
then Regional Director of the DOE, Region VII, respectively. 6
On June 13, 2002, the Government of the Philippines, acting through the DOE, entered into a Geophysical
Survey and Exploration Contract-102 (GSEC-102) with JAPEX. This contract involved geological and
geophysical studies of the Taon Strait. The studies included surface geology, sample analysis, and
reprocessing of seismic and magnetic data. JAPEX, assisted by DOE, also conducted geophysical and
satellite surveys, as well as oil and gas sampling in Taon Strait. 7
On December 21, 2004, DOE and JAPEX formally converted GSEC-102 into SC-46 for the exploration,
development, and production of petroleum resources in a block covering approximately 2,850 square
kilometers offshore the Taon Strait.8
From May 9 to 18, 2005, JAPEX conducted seismic surveys in and around the Taon Strait. A multi-channel
sub-bottom profiling covering approximately 751 kilometers was also done to determine the area's
underwater composition.9
JAPEX committed to drill one exploration well during the second sub-phase of the project. Since the well
was to be drilled in the marine waters of Aloguinsan and Pinamungajan, where the Taon Strait was
declared a protected seascape in 1988,10 JAPEX agreed to comply with the Environmental Impact
Assessment requirements pursuant to Presidential Decree No. 1586, entitled "Establishing An
Environmental Impact Statement System, Including Other Environmental Management Related Measures
And For Other Purposes."11
On January 31, 2007, the Protected Area Management Board 12 of the Taon Strait (PAMB-Taon Strait)
issued Resolution No. 2007-001,13 wherein it adopted the Initial Environmental Examination (IEE)
commissioned by JAPEX, and favorably recommended the approval of JAPEX's application for an ECC.
On March 6, 2007, the EMB of DENR Region VII granted an ECC to the DOE and JAPEX for the offshore oil
and gas exploration project in Taon Strait.14 Months later, on November 16, 2007, JAPEX began to drill an
exploratory well, with a depth of 3,150 meters, near Pinamungajan town in the western Cebu
Province.15 This drilling lasted until February 8, 2008.16
It was in view of the foregoing state of affairs that petitioners applied to this Court for redress, via two
separate original petitions both dated December 17, 2007, wherein they commonly seek that respondents
be enjoined from implementing SC-46 for, among others, violation of the 1987 Constitution.
On March 31, 2008, SOS filed a Motion to Strike17 its name as a respondent on the ground that it is not the
Philippine agent of JAPEX. In support of its motion, it submitted the branch office application of
JAPEX,18wherein the latter's resident agent was clearly identified. SOS claimed that it had acted as a mere
logistics contractor for JAPEX in its oil and gas exploration activities in the Philippines.
Petitioners Resident Marine Mammals and Stewards opposed SOS's motion on the ground that it was
premature, it was pro-forma, and it was patently dilatory. They claimed that SOS admitted that "it is in law
a (sic) privy to JAPEX" since it did the drilling and other exploration activities in Taon Strait under the
instructions of its principal, JAPEX. They argued that it would be premature to drop SOS as a party as JAPEX
had not yet been joined in the case; and that it was "convenient" for SOS to ask the Court to simply drop
its name from the parties when what it should have done was to either notify or ask JAPEX to join it in its
motion to enable proper substitution. At this juncture, petitioners Resident Marine Mammals and Stewards
also asked the Court to implead JAPEX Philippines as a corespondent or as a substitute for its parent
company, JAPEX.19
On April 8, 2008, the Court resolved to consolidate G.R. No. 180771 and G.R. No. 181527.
On May 26, 2008, the FIDEC manifested20 that they were adopting in toto the Opposition to Strike with
Motion to Implead filed by petitioners Resident Marine Mammals and Stewards in G.R. No. 180771.
On June 19, 2008, public respondents filed their Manifestation 21 that they were not objecting to SOS's
Motion to Strike as it was not JAPEX's resident agent. JAPEX during all this time, did not file any comment at
all.
Thus, on February 7, 2012, this Court, in an effort to ensure that all the parties were given ample chance
and opportunity to answer the issues herein, issued a Resolution directing the Court's process servicing
unit to again serve the parties with a copy of the September 23, 2008 Resolution of the Court, which gave
due course to the petitions in G.R. Nos. 180771 and 181527, and which required the parties to submit their
respective memoranda. The February 7, 2012 Resolution 22 reads as follows:chanroblesvirtuallawlibrary

G.R. No. 180771 (Resident Marine Mammals of the Protected Seascape Taon Strait, e.g., Toothed
Whales, Dolphins, Porpoises and Other Cetacean Species, et al. vs. Hon. Angelo Reyes, in his capacity as
Secretary of the Department of Energy, et al.) and G.R. No. 181527 (Central Visayas Fisherfolk
Development Center, et al. vs. Hon. Angelo Reyes, et al.). - The Court Resolved to direct the Process
Servicing Unit to RE-SEND the resolution dated September 23, 2008 to the following parties and counsel,
together with this resolution:chanroblesvirtuallawlibrary

Atty. Aristeo O.
Cario

20th Floor Pearlbank Centre

Counsel for
Respondent Supply

146 Valero Street

Oilfield Services, Inc. Salcedo Village, Makati City

JAPEX Philippines
20th Floor Pearlbank Centre
Ltd.

146 Valero Street

Salcedo Village, Makati City

JAPEX Philippines
19th Floor Pearlbank Centre
Ltd.

c/o Atty. Maria Farah

146 Valero Street
Z.G.

Nicolas-Suchianco

Salcedo Village, Makati City

Atty. Maria Farah

Z.G.

Suite 2404 Discovery Centre

Nicolas-Suchianco 25 ADB Avenue

Resident Agent of
JAPEX

Ortigas Center, Pasig City

Philippines Ltd.

This Resolution was personally served to the above parties, at the above addresses on February 23, 2012.
On March 20, 2012, JAPEX Philippines, Ltd. (JAPEX PH), by way of special appearance, filed a Motion to
Admit23 its Motion for Clarification,24 wherein JAPEX PH requested to be clarified as to whether or not it
should deem the February 7, 2012 Resolution as this Court's Order of its inclusion in the case, as it has not

been impleaded. It also alleged that JAPEX PH had already stopped exploration activities in the Taon Strait
way back in 2008, rendering this case moot.
On March 22, 2012, JAPEX PH, also by special appearance, filed a Motion for Extension of Time 25 to file its
Memorandum. It stated that since it received the February 7, 2012 Resolution on February 23, 2012, it had
until March 22, 2012 to file its Memorandum. JAPEX PH then asked for an additional thirty days, supposedly
to give this Court some time to consider its Motion for Clarification.
On April 24, 2012, this Court issued a Resolution26 granting JAPEX PH's Motion to Admit its Motion for
Clarification. This Court, addressing JAPEX PH's Motion for Clarification, held:chanroblesvirtuallawlibrary
With regard to its Motion for Clarification (By Special Appearance) dated March 19, 2012, this Court
considers JAPEX Philippines. Ltd. as a real party-in-interest in these cases. Under Section 2, Rule 3 of the
1997 Rules of Court, a real party-in-interest is the party who stands to be benefited or injured by the
judgment in the suit, or the party entitled to the avails of the suit. Contrary to JAPEX Philippines, Ltd.'s
allegation that it is a completely distinct corporation, which should not be confused with JAPEX Company,
Ltd., JAPEX Philippines, Ltd. is a mere branch office, established by JAPEX Company, Ltd. for the purpose of
carrying out the latter's business transactions here in the Philippines. Thus, JAPEX Philippines, Ltd., has no
separate personality from its mother foreign corporation, the party impleaded in this case.
Moreover, Section 128 of the Corporation Code provides for the responsibilities and duties of a resident
agent of a foreign corporation:chanroblesvirtuallawlibrary
SECTION 128. Resident agent; service of process. The Securities and Exchange Commission shall require
as a condition precedent to the issuance of the license to transact business in the Philippines by any
foreign corporation that such corporation file with the Securities and Exchange Commission a written
power of attorney designating some person who must be a resident of the Philippines, on whom any
summons and other legal processes may be served in all actions or other legal proceedings against such
corporation, and consenting that service upon such resident agent shall be admitted and held as valid as if
served upon the duly authorized officers of the foreign corporation at its home office. Any such foreign
corporation shall likewise execute and file with the Securities and Exchange Commission an agreement or
stipulation, executed by the proper authorities of said corporation, in form and substance as follows:
"The (name of foreign corporation) does hereby stipulate and agree, in consideration of its being granted
by the Securities and Exchange Commission a license to transact business in the Philippines, that if at any
time said corporation shall cease to transact business in the Philippines, or shall be without any resident
agent in the Philippines on whom any summons or other legal processes may be served, then in any action
or proceeding arising out of any business or transaction which occurred in the Philippines, service of any
summons or other legal process may be made upon the Securities and Exchange Commission and that
such service shall have the same force and effect as if made upon the duly-authorized officers of the
corporation at its home office."
Whenever such service of summons or other process shall be made upon the Securities and Exchange
Commission, the Commission shall, within ten (10) days thereafter, transmit by mail a copy of such
summons or other legal process to the corporation at its home or principal office. The sending of such copy
by the Commission shall be a necessary part of and shall complete such service. All expenses incurred by
the Commission for such service shall be paid in advance by the party at whose instance the service is
made.
In case of a change of address of the resident agent, it shall be his or its duty to immediately notify in
writing the Securities and Exchange Commission of the new address.
It is clear from the foregoing provision that the function of a resident agent is to receive summons or legal
processes that may be served in all actions or other legal proceedings against the foreign corporation.
These cases have been prosecuted in the name of JAPEX Company, Ltd., and JAPEX Philippines Ltd., as its
branch office and resident agent, had been receiving the various resolutions from this Court, as evidenced
by Registry Return Cards signed by its representatives.
And in the interest of justice, this Court resolved to grant JAPEX PH's motion for extension of time to file its
memorandum, and was given until April 21, 2012, as prayed for, within which to comply with the
submission.27
Without filing its Memorandum, JAPEX PH, on May 14, 2012, filed a motion, asking this Court for an
additional thirty days to file its Memorandum, to be counted from May 8, 2012. It justified its request by
claiming that this Court's April 24, 2012 Resolution was issued past its requested deadline for filing, which
was on April 21, 2012.28
On June 19, 2012, this Court denied JAPEX PH's second request for additional time to file its Memorandum
and dispensed with such filing.
Since petitioners had already filed their respective memoranda, 29 and public respondents had earlier filed a
Manifestation30 that they were adopting their Comment dated March 31, 2008 as their memorandum, this
Court submitted the case for decision.chanRoblesvirtualLawlibrary

Petitioners' Allegations

Protesting the adverse ecological impact of JAPEX's oil exploration activities in the Taon Strait, petitioners
Resident Marine Mammals and Stewards aver that a study made after the seismic survey showed that the
fish catch was reduced drastically by 50 to 70 percent. They claim that before the seismic survey, the
average harvest per day would be from 15 to 20 kilos; but after the activity, the fisherfolk could only catch
an average of 1 to 2 kilos a day. They attribute this "reduced fish catch" to the destruction of the "payao"
also known as the "fish aggregating device" or "artificial reef." 31 Petitioners Resident Marine Mammals and
Stewards also impute the incidences of "fish kill"32 observed by some of the local fisherfolk to the seismic
survey. And they further allege that the ECC obtained by private respondent JAPEX is invalid because
public consultations and discussions with the affected stakeholders, a pre-requisite to the issuance of the
ECC, were not held prior to the ECC's issuance.
In its separate petition, petitioner FIDEC confirms petitioners Resident Marine Mammals and Stewards'
allegations of reduced fish catch and lack of public consultations or discussions with the fisherfolk and
other stakeholders prior to the issuance of the ECC. Moreover, it alleges that during the seismic surveys
and drilling, it was barred from entering and fishing within a 7-kilometer radius from the point where the
oilrig was located, an area greater than the 1.5-kilometer radius "exclusion zone" stated in the IEE. 33 It also
agrees in the allegation that public respondents DENR and EMB abused their discretion when they issued
an ECC to public respondent DOE and private respondent JAPEX without ensuring the strict compliance
with the procedural and substantive requirements under the Environmental Impact Assessment system,
the Fisheries Code, and their implementing rules and regulations. 34 It further claims that despite several
requests for copies of all the documents pertaining to the project in Taflon Strait, only copies of the PAMBTaon Strait Resolution and the ECC were given to the fisherfolk. 35
Public Respondents' Counter-Allegations

Public respondents, through the Solicitor General, contend that petitioners Resident Marine Mammals and
Stewards have no legal standing to file the present petition; that SC-46 does not violate the 1987
Constitution and the various laws cited in the petitions; that the ECC was issued in accordance with
existing laws and regulations; that public respondents may not be compelled by mandamus to furnish
petitioners copies of all documents relating to SC-46; and that all the petitioners failed to show that they
are entitled to injunctive relief. They further contend that the issues raised in these petitions have been
rendered moot and academic by the fact that SC-46 had been mutually terminated by the parties thereto
effective June 21, 2008.36
ISSUES

The following are the issues posited by petitioners Resident Marine Mammals and Stewards in G.R. No.
180771:chanroblesvirtuallawlibrary
I.

WHETHER OR NOT PETITIONERS HAVE LOCUS STANDI TO FILE THE INSTANT PETITION;

II.

WHETHER OR NOT SERVICE CONTRACT NO. 46 IS VIOLAT[IVE] OF THE 1987 PHILIPPINE

CONSTITUTION AND STATUTES;

III.

WHETHER OR NOT THE ON-GOING EXPLORATION AND PROPOSED EXPLOITATION FOR OIL AND
NATURAL GAS AT, AROUND, AND UNDERNEATH THE MARINE WATERS OF THE TANON STRAIT
PROTECTED SEASCAPE IS INCONSISTENT WITH THE PHILIPPINE COMMITMENTS TO INTERNATIONAL
ENVIRONMENTAL LAWS AND INSTRUMENTS; AND

IV.

WHETHER OR NOT THE ISSUANCE OF THE ENVIRONMENTAL COMPLIANCE CERTIFICATE (ECC) IN

ENVIRONMENTALLY CRITICAL AREAS AND HABITATS OF MARINE WILDLIFE AND ENDANGERED
SPECIES IS LEGAL AND PROPER.37

Meanwhile, in G.R. No. 181527, petitioner FIDEC presented the following issues for our
consideration:chanroblesvirtuallawlibrary
I.

WHETHER OR NOT SERVICE CONTRACT NO. 46 EXECUTED BETWEEN RESPONDENTS DOE AND JAPEX
SHOULD BE NULLIFIED AND SET ASIDE FOR BEING IN DIRECT VIOLATION OF SPECIFIC PROVISIONS
OF THE 1987 PHILIPPINE CONSTITUTION AND APPLICABLE LAWS;

II.

WHETHER OR NOT THE OFF-SHORE OIL EXPLORATION CONTEMPLATED UNDER SERVICE CONTRACT
NO. 46 IS LEGALLY PERMISSIBLE WITHOUT A LAW BEING DULY PASSED EXPRESSLY FOR THE
PURPOSE;

III.

WHETHER OR NOT THE OIL EXPLORATION BEING CONDUCTED WITHIN THE TANON STRAIT
PROTECTED SEASCAPE VIOLATES THE RIGHTS AND LEGAL PROTECTION GRANTED TO PETITIONERS
UNDER THE CONSTITUTION AND APPLICABLE LAWS.

IV.

WHETHER OR NOT THE ISSUANCE OF THE ENVIRONMENTAL COMPLIANCE CERTIFICATE (ECC) FOR
SUCH AN ENVIRONMENTALLY CRITICAL PROJECT INSIDE AN ENVIRONMENTALLY CRITICAL AREA
SUCH AS THE TANON STRAIT PROTECTED SEASCAPE CONFORMED TO LAW AND EXISTING RULES
AND REGULATIONS ON THE MATTER.

V.

WHETHER OR NOT THE RESPONDENTS MAY BE COMPELLED BY MANDAMUS TO FURNISH

PETITIONERS WITH COPIES OF THE DOCUMENTS PERTAINING TO THE TANON STRAIT OIL
EXPLORATION PROJECT.38

In these consolidated petitions, this Court has determined that the various issues raised by the petitioners
may be condensed into two primary issues:
I.

Procedural Issue: Locus Standi of the Resident Marine Mammals and Stewards, petitioners in G.R.
No. 180771; and

II.

Main Issue: Legality of Sendee Contract No. 46.

DISCUSSION

At the outset, this Court makes clear that the '"moot and academic principle' is not a magical formula that
can automatically dissuade the courts in resolving a case." Courts have decided cases otherwise moot and
academic under the following exceptions:
1) There is a grave violation of the Constitution;
2) The exceptional character of the situation and the paramount public interest is involved;
3) The constitutional issue raised requires formulation of controlling principles to guide the bench, the bar,
and the public; and
4) The case is capable of repetition yet evading review.39
In this case, despite the termination of SC-46, this Court deems it necessary to resolve these consolidated
petitions as almost all of the foregoing exceptions are present in this case. Both petitioners allege that SC46 is violative of the Constitution, the environmental and livelihood issues raised undoubtedly affect the
public's interest, and the respondents' contested actions are capable of
repetition.chanRoblesvirtualLawlibrary
Procedural Issues
Locus Standi of Petitioners Resident Marine Mammals and Stewards

The Resident Marine Mammals, through the Stewards, "claim" that they have the legal standing to file this
action since they stand to be benefited or injured by the judgment in this suit. 40 Citing Oposa v. Factoran,
Jr.,41 they also assert their right to sue for the faithful performance of international and municipal
environmental laws created in their favor and for their benefit. In this regard, they propound that they
have the right to demand that they be accorded the benefits granted to them in multilateral international
instruments that the Philippine Government had signed, under the concept of stipulation pour autrui.42
For their part, the Stewards contend that there should be no question of their right to represent the
Resident Marine Mammals as they have stakes in the case as forerunners of a campaign to build
awareness among the affected residents of Taon Strait and as stewards of the environment since the
primary steward, the Government, had failed in its duty to protect the environment pursuant to the public
trust doctrine.43
Petitioners Resident Marine Mammals and Stewards also aver that this Court may lower the benchmark
inlocus standi as an exercise of epistolary jurisdiction.44
In opposition, public respondents argue that the Resident Marine Mammals have no standing because
Section 1, Rule 3 of the Rules of Court requires parties to an action to be either natural or juridical
persons,viz.:chanroblesvirtuallawlibrary
Section 1. Who may be parties; plaintiff and defendant. - Only natural or juridical persons, or entities
authorized by law may be parties in a civil action. The term "plaintiff may refer to the claiming party, the
counter-claimant, the cross-claimant, or the third (fourth, etc.)-party plaintiff. The term "defendant" may

refer to the original defending party, the defendant in a counterclaim, the cross-defendant, or the third
(fourth, etc.)-party defendant.
The public respondents also contest the applicability of Oposa, pointing out that the petitioners therein
were all natural persons, albeit some of them were still unborn. 45
As regards the Stewards, the public respondents likewise challenge their claim of legal standing on the
ground that they are representing animals, which cannot be parties to an action. Moreover, the public
respondents argue that the Stewards are not the real parties-in-interest for their failure to show how they
stand to be benefited or injured by the decision in this case. 46
Invoking the alter ego principle in political law, the public respondents claim that absent any proof that
former President Arroyo had disapproved of their acts in entering into and implementing SC-46, such acts
remain to be her own.47
The public respondents contend that since petitioners Resident Marine Mammals and Stewards' petition
was not brought in the name of a real party-in-interest, it should be dismissed for failure to state a cause of
action.48
The issue of whether or not animals or even inanimate objects should be given legal standing in actions
before courts of law is not new in the field of animal rights and environmental law. Petitioners Resident
Marine Mammals and Stewards cited the 1972 United States case Sierra Club v. Rogers C.B.
Morton,49wherein Justice William O. Douglas, dissenting to the conventional thought on legal standing,
opined:chanroblesvirtuallawlibrary
The critical question of "standing" would be simplified and also put neatly in focus if we fashioned a federal
rule that allowed environmental issues to be litigated before federal agencies or federal courts in the name
of the inanimate object about to be despoiled, defaced, or invaded by roads and bulldozers and where
injury is the subject of public outrage, x x x.
Inanimate objects are sometimes parties in litigation. A ship has a legal personality, a fiction found useful
for maritime purposes. The corporation sole - a creature of ecclesiastical law - is an acceptable adversary
and large fortunes ride on its cases. The ordinary corporation is a "person" for purposes of the adjudicatory
processes, whether it represents proprietary, spiritual, aesthetic, or charitable causes.
So it should be as respects valleys, alpine meadows, rivers, lakes, estuaries, beaches, ridges, groves of
trees, swampland, or even air that feels the destructive pressures of modern technology and modem life.
The river, for example, is the living symbol of all the life it sustains or nourishesfish, aquatic insects,
water ouzels, otter, fisher, deer, elk, bear, and all other animals, including man, who are dependent on it or
who enjoy it for its sight, its sound, or its life. The river as plaintiff speaks for the ecological unit of life that
is part of it. Those people who have a meaningful relation to that body of waterwhether it be a
fisherman, a canoeist, a zoologist, or a loggermust be able to speak for the values which the river
represents and which are threatened with destruction.50 (Citations omitted.)
The primary reason animal rights advocates and environmentalists seek to give animals and inanimate
objects standing is due to the need to comply with the strict requirements in bringing a suit to court. Our
own 1997 Rules of Court demand that parties to a suit be either natural or juridical persons, or entities
authorized by law. It further necessitates the action to be brought in the name of the real party-in-interest,
even if filed by a representative, viz.:chanroblesvirtuallawlibrary
Rule 3
Parties to Civil Actions

Section 1. Who may be parties; plaintiff and defendant. - Only natural or juridical persons, or entities
authorized by law may be parties in a civil action. The term "plaintiff may refer to the claiming party, the
counter-claimant, the cross-claimant, or the third (fourth, etc.)-party plaintiff. The term "defendant" may
refer to the original defending party, the defendant in a counterclaim, the cross-defendant, or the third
(fourth, etc.)-party defendant.
Sec. 2. Parties in interest. - A real party in interest is the party who stands to be benefited or injured by the
judgment in the suit, or the party entitled to the avails of the suit. Unless otherwise authorized by law or
these Rules, every action must be prosecuted or defended in the name of the real party in interest.
Sec. 3. Representatives as parties. - Where the action is allowed to be prosecuted or defended by a
representative or someone acting in a fiduciary capacity, the beneficiary shall be included in the title of the
case and shall be deemed to be the real party in interest. A representative may be a trustee of an express
trust, a guardian, an executor or administrator, or a party authorized by law or these Rules. An agent
acting in his own name and for the benefit of an undisclosed principal may sue or be sued without joining
the principal except when the contract involves things belonging to the principal.

It had been suggested by animal rights advocates and environmentalists that not only natural and juridical
persons should be given legal standing because of the difficulty for persons, who cannot show that they by
themselves are real parties-in-interests, to bring actions in representation of these animals or inanimate
objects. For this reason, many environmental cases have been dismissed for failure of the petitioner to
show that he/she would be directly injured or affected by the outcome of the case. However, in our
jurisdiction, locus standi in environmental cases has been given a more liberalized approach. While
developments in Philippine legal theory and jurisprudence have not progressed as far as Justice Douglas's
paradigm of legal standing for inanimate objects, the current trend moves towards simplification of
procedures and facilitating court access in environmental cases.
Recently, the Court passed the landmark Rules of Procedure for Environmental Cases,51 which allow
for a "citizen suit," and permit any Filipino citizen to file an action before our courts for violations of our
environmental laws:chanroblesvirtuallawlibrary
SEC. 5. Citizen suit. - Any Filipino citizen in representation of others, including minors or
generations yet unborn, may file an action to enforce rights or obligations under
environmental laws. Upon the filing of a citizen suit, the court shall issue an order which shall contain a
brief description of the cause of action and the reliefs prayed for, requiring all interested parties to
manifest their interest to intervene in the case within fifteen (15) days from notice thereof. The plaintiff
may publish the order once in a newspaper of a general circulation in the Philippines or furnish all affected
barangays copies of said order.
Citizen suits filed under R.A. No. 8749 and R.A. No. 9003 shall be governed by their respective
provisions.52 (Emphasis ours.)
Explaining the rationale for this rule, the Court, in the Annotations to the Rules of Procedure for
Environmental Cases, commented:chanroblesvirtuallawlibrary
Citizen suit. To further encourage the protection of the environment, the Rules enable litigants enforcing
environmental rights to file their cases as citizen suits. This provision liberalizes standing for all cases filed
enforcing environmental laws and collapses the traditional rule on personal and direct interest, on the
principle that humans are stewards of nature. The terminology of the text reflects the doctrine first
enunciated inOposa v. Factoran, insofar as it refers to minors and generations yet unborn.53 (Emphasis
supplied, citation omitted.)
Although this petition was filed in 2007, years before the effectivity of the Rules of Procedure for
Environmental Cases, it has been consistently held that rules of procedure "may be retroactively applied to
actions pending and undetermined at the time of their passage and will not violate any right of a person
who may feel that he is adversely affected, inasmuch as there is no vested rights in rules of procedure." 54
Elucidating on this doctrine, the Court, in Systems Factors Corporation v. National Labor Relations
Commission55 held that:chanroblesvirtuallawlibrary
Remedial statutes or statutes relating to remedies or modes of procedure, which do not create new or take
away vested rights, but only operate in furtherance of the remedy or confirmation of rights already
existing, do not come within the legal conception of a retroactive law, or the general rule against
retroactive operation of statutes. Statutes regulating the procedure of the courts will be construed as
applicable to actions pending and undetermined at the time of their passage. Procedural laws are
retroactive in that sense and to that extent, x x x.
Moreover, even before the Rules of Procedure for Environmental Cases became effective, this Court had
already taken a permissive position on the issue of locus standi in environmental cases. In Oposa, we
allowed the suit to be brought in the name of generations yet unborn "based on the concept of
intergenerational responsibility insofar as the right to a balanced and healthful ecology is
concerned."56Furthermore, we said that the right to a balanced and healthful ecology, a right that does not
even need to be stated in our Constitution as it is assumed to exist from the inception of humankind,
carries with it the correlative duty to refrain from impairing the environment. 57
In light of the foregoing, the need to give the Resident Marine Mammals legal standing has been
eliminated by our Rules, which allow any Filipino citizen, as a steward of nature, to bring a suit to enforce
our environmental laws. It is worth noting here that the Stewards are joined as real parties in the Petition
and not just in representation of the named cetacean species. The Stewards, Ramos and Eisma-Osorio,
having shown in their petition that there may be possible violations of laws concerning the habitat of the
Resident Marine Mammals, are therefore declared to possess the legal standing to file this
petition.chanRoblesvirtualLawlibrary
Impleading Former President Gloria Macapagal-Arroyo as an Unwilling Co-Petitioner

Petitioners Stewards in G.R. No. 180771 impleaded as an unwilling co-petitioner former President Gloria
Macapagal-Arroyo for the following reasons, which we quote:chanroblesvirtuallawlibrary

Her Excellency Gloria Macapagal-Arroyo, also of legal age, Filipino and resident of Malacaang Palace,
Manila Philippines. Steward Gloria Macapagal-Arroyo happens to be the incumbent President of the
Philippine Islands. She is personally impleaded in this suit as an unwilling co-petitioner by reason of her
express declaration and undertaking under the recently signed ASEAN Charter to protect Your Petitioners'
habitat, among others. She is meantime dominated as an unwilling co-petitioner due to lack of material
time in seeking her signature and imprimatur hereof and due to possible legal complications that may
hereafter arise by reason of her official relations with public respondents under the alter ego principle in
political law.58cralawlawlibrary
This is incorrect.
Section 10, Rule 3 of the Rules of Court provides:chanroblesvirtuallawlibrary
Sec. 10. Unwilling co-plaintiff. - If the consent of any party who should be joined as plaintiff can not be
obtained, he may be made a defendant and the reason therefor shall be stated in the complaint.
Under the foregoing rule, when the consent of a party who should be joined as a plaintiff cannot be
obtained, he or she may be made a party defendant to the case. This will put the unwilling party under the
jurisdiction of the Court, which can properly implead him or her through its processes. The unwilling party's
name cannot be simply included in a petition, without his or her knowledge and consent, as such would be
a denial of due process.
Moreover, the reason cited by the petitioners Stewards for including former President Macapagal-Arroyo in
their petition, is not sufficient to implead her as an unwilling co-petitioner. Impleading the former President
as an unwilling co-petitioner, for an act she made in the performance of the functions of her office, is
contrary to the public policy against embroiling the President in suits, "to assure the exercise of
Presidential duties and functions free from any hindrance or distraction, considering that being the Chief
Executive of the Government is a job that, aside from requiring all of the office holder's time, also demands
undivided attention."59
Therefore, former President Macapagal-Arroyo cannot be impleaded as one of the petitioners in this suit.
Thus, her name is stricken off the title of this case.chanRoblesvirtualLawlibrary
Main Issue:
Legality of Service Contract No. 46
Service Contract No. 46 vis-a-vis
Section 2, Article XII of the
1987 Constitution

Petitioners maintain that SC-46 transgresses the Jura Regalia Provision or paragraph 1, Section 2, Article
XII of the 1987 Constitution because JAPEX is 100% Japanese-owned. 60 Furthermore, the FIDEC asserts that
SC-46 cannot be considered as a technical and financial assistance agreement validly executed under
paragraph 4 of the same provision.61 The petitioners claim that La Bugal-B'laan Tribal Association, Inc. v.
Ramos62 laid down the guidelines for a valid service contract, one of which is that there must exist a
general law for oil exploration before a service contract may be entered into by the Government. The
petitioners posit that the service contract in La Bugal is presumed to have complied with the requisites of
(a) legislative enactment of a general law after the effectivity of the 1987 Constitution (such as Republic
Act No. 7942, or the Philippine Mining Law of 1995, governing mining contracts) and (b) presidential
notification. The petitioners thus allege that the ruling in La Bugal, which involved mining contracts under
Republic Act No. 7942, does not apply in this case.63 The petitioners also argue that Presidential Decree No.
87 or the Oil Exploration and Development Act of 1972 cannot legally justify SC-46 as it is deemed to have
been repealed by the 1987 Constitution and subsequent laws, which enunciate new policies concerning the
environment.64 In addition, petitioners in G.R. No. 180771 claim that paragraphs 2 and 3 of Section 2,
Article XII of the 1987 Constitution mandate the exclusive use and enjoyment by the Filipinos of our natural
resources,65 and paragraph 4 does not speak of service contracts but of FTAAs or Financial Technical
Assistance Agreements.66
The public respondents again controvert the petitioners' claims and asseverate that SC-46 does not violate
Section 2, Article XII of the 1987 Constitution. They hold that SC-46 does not fall under the coverage of
paragraph 1 but instead, under paragraph 4 of Section 2, Article XII of the 1987 Constitution on FTAAs.
They also insist that paragraphs 2 and 3, which refer to the grant of exclusive fishing right to Filipinos, are
not applicable to SC-46 as the contract does not grant exclusive fishing rights to JAPEX nor does it
otherwise impinge on the FIDEC's right to preferential use of communal marine and fishing resources. 67
Ruling of the Court
On the legality of Service Contract No. 46
vis-a-vis Section 2, Article XII of the 1987 Constitution

The petitioners insist that SC-46 is null and void for having violated Section 2, Article XII of the 1987
Constitution, which reads as follows:chanroblesvirtuallawlibrary
Section 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all
forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources
are owned by the State. With the exception of agricultural lands, all other natural resources shall not be
alienated. The exploration, development, and utilization of natural resources shall be under the full control
and supervision of the State. The State may directly undertake such activities, or it may enter into coproduction, joint venture, or production-sharing agreements with Filipino citizens, or corporations or
associations at least sixty per centum of whose capital is owned by such citizens. Such agreements may be
for a period not exceeding twenty-five years, renewable for not more than twenty-five years, and under
such terms and conditions as may be provided by law. In cases of water rights for irrigation, water supply,
fisheries, or industrial uses other than the development of water power, beneficial use may be the
measure and limit of the grant.
The State shall protect the 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. (Emphases ours.)
This Court has previously settled the issue of whether service contracts are still allowed under the 1987
Constitution. In La Bugal, we held that the deletion of the words "service contracts" in the 1987
Constitution did not amount to a ban on them per se. In fact, in that decision, we quoted in length, portions
of the deliberations of the members of the Constitutional Commission (ConCom) to show that in
deliberating on paragraph 4, Section 2, Article XII, they were actually referring to service contracts as
understood in the 1973 Constitution, albeit with safety measures to eliminate or minimize the abuses
prevalent during the martial law regime, to wit:chanroblesvirtuallawlibrary
Summation of the ConCom Deliberations
At this point, we sum up the matters established, based on a careful reading of the ConCom deliberations,
as follows:
In their deliberations on what was to become paragraph 4, the framers used the termservice contracts in
referring to agreements x x x involving either technical or financial assistance.
They spoke of service contracts as the concept was understood in the 1973 Constitution.
It was obvious from their discussions that they were not about to ban or eradicate service contracts.
Instead, they were plainly crafting provisions to put in place safeguards that would eliminate or minimize
the abuses prevalent during the marital law regime. In brief, they were going to permit service contracts
with foreign corporations as contractors, but with safety measures to prevent abuses, as an exception to
the general norm established in the first paragraph of Section 2 of Article XII. This provision reserves or
limits to Filipino citizens and corporations at least 60 percent of which is owned by such citizens the
exploration, development and utilization of natural resources.
This provision was prompted by the perceived insufficiency of Filipino capital and the felt need for foreign
investments in the EDU of minerals and petroleum resources.
The framers for the most part debated about the sort of safeguards that would be considered adequate
and reasonable. But some of them, having more "radical" leanings, wanted to ban service contracts
altogether; for them, the provision would permit aliens to exploit and benefit from the nation's natural
resources, which they felt should be reserved only for Filipinos.
In the explanation of their votes, the individual commissioners were heard by the entire body. They
sounded off their individual opinions, openly enunciated their philosophies, and supported or attacked the
provisions with fervor. Everyone's viewpoint was heard.
In the final voting, the Article on the National Economy and Patrimony including paragraph 4 allowing

service contracts with foreign corporations as an exception to the general norm in paragraph 1 of Section 2
of the same article was resoundingly approved by a vote of 32 to 7, with 2 abstentions.
Agreements Involving Technical Or Financial Assistance Are Service Contracts with Safeguards
From the foregoing, we are impelled to conclude that the phrase agreements involving either technical or
financial assistance, referred to in paragraph 4, are in fact service contracts. But unlike those of the 1973
variety, the new ones are between foreign corporations acting as contractors on the one hand; and on the
other, the government as principal or "owner" of the works. In the new service contracts, the foreign
contractors provide capital, technology and technical know-how, and managerial expertise in the creation
and operation of large-scale mining/extractive enterprises; and the government, through its agencies
(DENR, MGB), actively exercises control and supervision over the entire operation. 68cralawlawlibrary
In summarizing the matters discussed in the ConCom, we established that paragraph 4, with the
safeguards in place, is the exception to paragraph 1, Section 2 of Article XII. The following are
the safeguards this Court enumerated in La Bugal:chanroblesvirtuallawlibrary
Such service contracts may be entered into only with respect to minerals, petroleum and other mineral
oils. The grant thereof is subject to several safeguards, among which are these requirements:
(1) The service contract shall be crafted in accordance with a general law that will set standard or uniform
terms, conditions and requirements, presumably to attain a certain uniformity in provisions and avoid the
possible insertion of terms disadvantageous to the country.
(2) The President shall be the signatory for the government because, supposedly before an agreement is
presented to the President for signature, it will have been vetted several times over at different levels to
ensure that it conforms to law and can withstand public scrutiny.
(3) Within thirty days of the executed agreement, the President shall report it to Congress to give that
branch of government an opportunity to look over the agreement and interpose timely objections, if
any.69cralawlawlibrary
Adhering to the aforementioned guidelines, this Court finds that SC-46 is indeed null and void for
noncompliance with the requirements of the 1987 Constitution.
1. The General Law on Oil Exploration
The disposition, exploration, development, exploitation, and utilization of indigenous petroleum in the
Philippines are governed by Presidential Decree No. 87 or the Oil Exploration and Development Act of
1972. This was enacted by then President Ferdinand Marcos to promote the discovery and production of
indigenous petroleum through the utilization of government and/or local or foreign private resources to
yield the maximum benefit to the Filipino people and the revenues to the Philippine Government. 70
Contrary to the petitioners' argument, Presidential Decree No. 87, although enacted in 1972, before the
adoption of the 1987 Constitution, remains to be a valid law unless otherwise repealed, to
wit:chanroblesvirtuallawlibrary
ARTICLE XVIII - TRANSITORY PROVISIONS

Section 3. All existing laws, decrees, executive orders, proclamations, letters of instructions, and other
executive issuances not inconsistent with this Constitution shall remain operative until amended, repealed,
or revoked.
If there were any intention to repeal Presidential Decree No. 87, it would have been done expressly by
Congress. For instance, Republic Act No. 7160, more popularly known as the Local Government Code of
1991, expressly repealed a number of laws, including a specific provision in Presidential Decree No.
87,viz.:chanroblesvirtuallawlibrary
SECTION 534. Repealing Clause. (a) Batas Pambansa Blg. 337, otherwise known as the "Local
Government Code," Executive Order No. 112 (1987), and Executive Order No. 319 (1988) are hereby
repealed.
(b) Presidential Decree Nos. 684, 1191, 1508 and such other decrees, orders, instructions, memoranda and
issuances related to or concerning the barangay are hereby repealed.
(c) The provisions of Sections 2, 3, and 4 of Republic Act No. 1939 regarding hospital fund; Section 3, a (3)
and b (2) of Republic Act No. 5447 regarding the Special Education Fund; Presidential Decree No. 144 as
amended by Presidential Decree Nos. 559 and 1741; Presidential Decree No. 231 as amended; Presidential
Decree No. 436 as amended by Presidential Decree No. 558; and Presidential Decree Nos. 381, 436, 464,
477, 526, 632, 752, and 1136 are hereby repealed and rendered of no force and effect.

(d) Presidential Decree No. 1594 is hereby repealed insofar as it governs locally-funded projects.
(e) The following provisions are hereby repealed or amended insofar as they are inconsistent with the
provisions of this Code: Sections 2, 16 and 29 of Presidential Decree No. 704; Section 12 of Presidential
Decree No. 87, as amended; Sections 52, 53, 66, 67, 68, 69, 70, 71, 72, 73, and 74 of Presidential Decree
No. 463, as amended; and Section 16 of Presidential Decree No. 972, as amended, and
(f) All general and special laws, acts, city charters, decrees, executive orders, proclamations and
administrative regulations, or part or parts thereof which are inconsistent with any of the provisions of this
Code are hereby repealed or modified accordingly. (Emphasis supplied.)
This Court could not simply assume that while Presidential Decree No. 87 had not yet been expressly
repealed, it had been impliedly repealed. As we held in Villarea v. The Commission on Audit,71 "[i]mplied
repeals are not lightly presumed." It is a settled rule that when laws are in conflict with one another, every
effort must be exerted to reconcile them. In Republic of the Philippines v. Marcopper Mining
Corporation,72 we said:chanroblesvirtuallawlibrary
The two laws must be absolutely incompatible, and a clear finding thereof must surface, before the
inference of implied repeal may be drawn. The rule is expressed in the maxim,interpretare et concordare
leqibus est optimus interpretendi, i.e., every statute must be so interpreted and brought into accord with
other laws as to form a uniform system of jurisprudence. The fundament is that the legislature should be
presumed to have known the existing laws on the subject and not have enacted conflicting statutes.
Hence, all doubts must be resolved against any implied repeal, and all efforts should be exerted in order to
harmonize and give effect to all laws on the subject. (Citation omitted.)
Moreover, in cases where the statute seems to be in conflict with the Constitution, but a construction that
it is in harmony with the Constitution is also possible, that construction should be preferred. 73 This Court,
in Pangandaman v. Commission on Elections74 expounding on this point,
pronounced:chanroblesvirtuallawlibrary
It is a basic precept in statutory construction that a statute should be interpreted in harmony with the
Constitution and that the spirit, rather than the letter of the law determines its construction; for that
reason, a statute must be read according to its spirit and intent, x x x. (Citation omitted.)
Consequently, we find no merit in petitioners' contention that SC-46 is prohibited on the ground that there
is no general law prescribing the standard or uniform terms, conditions, and requirements for service
contracts involving oil exploration and extraction.
But note must be made at this point that while Presidential Decree No. 87 may serve as the general law
upon which a service contract for petroleum exploration and extraction may be authorized, as will be
discussed below, the exploitation and utilization of this energy resource in the present case may be
allowed only through a law passed by Congress, since the Taon Strait is a NIPAS 75 area.
2. President was not the signatory to SC-46 and the same was not submitted to Congress
While the Court finds that Presidential Decree No. 87 is sufficient to satisfy the requirement of a general
law, the absence of the two other conditions, that the President be a signatory to SC-46, and that Congress
be notified of such contract, renders it null and void.
As SC-46 was executed in 2004, its terms should have conformed not only to the provisions of Presidential
Decree No. 87, but also to those of the 1987 Constitution. The Civil Code
provides:chanroblesvirtuallawlibrary
ARTICLE 1306. The contracting parties may establish such stipulations, clauses, terms and conditions as
they may deem convenient, provided they are not contrary to law, morals, good customs, public order, or
public policy. (Italics ours.)
In Heirs of San Miguel v. Court of Appeals,76 this Court held that:chanroblesvirtuallawlibrary
It is basic that the law is deemed written into every contract. Although a contract is the law between the
parties, the provisions of positive law which regulate contracts are deemed written therein and shall limit
and govern the relations between the parties, x x x. (Citations omitted.)
Paragraph 4, Section 2, Article XII of the 1987 Constitution requires that the President himself enter into
any service contract for the exploration of petroleum. SC-46 appeared to have been entered into and
signed only by the DOE through its then Secretary, Vicente S. Perez, Jr., contrary to the said constitutional
requirement. Moreover, public respondents have neither shown nor alleged that Congress was
subsequently notified of the execution of such contract.
Public respondents' implied argument that based on the "alter ego principle," their acts are also that of
then President Macapagal-Arroyo's, cannot apply in this case. In Joson v. Torres,77 we explained the concept

of the alter ego principle or the doctrine of qualified political agency and its limit in this
wise:chanroblesvirtuallawlibrary
Under this doctrine, which recognizes the establishment of a single executive, all executive and
administrative organizations are adjuncts of the Executive Department, the heads of the various executive
departments are assistants and agents of the Chief Executive, and,except in cases where the Chief
Executive is required by the Constitution or law to act in person or the exigencies of the
situation demand that he act personally, the multifarious executive and administrative functions of
the Chief Executive are performed by and through the executive departments, and the acts of the
Secretaries of such departments, performed and promulgated in the regular course of business, are, unless
disapproved or reprobated by the Chief Executive presumptively the acts of the Chief Executive. (Emphasis
ours, citation omitted.)
While the requirements in executing service contracts in paragraph 4, Section 2 of Article XII of the 1987
Constitution seem like mere formalities, they, in reality, take on a much bigger role. As we have explained
in La Bugal, they are the safeguards put in place by the framers of the Constitution to "eliminate or
minimize the abuses prevalent during the martial law regime."78 Thus, they are not just mere formalities,
which will only render a contract unenforceable but not void, if not complied with. They are requirements
placed, not just in an ordinary statute, but in the fundamental law, the non-observance of which will nullify
the contract. Elucidating on the concept of a "constitution," this Court, in Manila Prince Hotel v.
Government Service Insurance System,79 held:chanroblesvirtuallawlibrary
A constitution is a system of fundamental laws for the governance and administration of a nation. It is
supreme, imperious, absolute and unalterable except by the authority from which it emanates. It has been
defined as the fundamental and paramount law of the nation. It prescribes the permanent framework of a
system of government, assigns to the different departments their respective powers and duties, and
establishes certain fixed principles on which government is founded. The fundamental conception in other
words is that it is a supreme law to which all other laws must conform and in accordance with which all
private rights must be determined and all public authority administered. Under the doctrine of
constitutional supremacy, if a law or contract violates any norm of the constitution that law or
contract whether promulgated by the legislative or by the executive branch or entered into by
private persons for private purposes is null and void and without any force and effect.
Thus, since the Constitution is the fundamental, paramount and supreme law of the nation, it is deemed
written in every statute and contract. (Emphasis ours.)
As this Court has held in La Bugal, our Constitution requires that the President himself be the signatory of
service agreements with foreign-owned corporations involving the exploration, development, and
utilization of our minerals, petroleum, and other mineral oils. This power cannot be taken lightly.
In this case, the public respondents have failed to show that the President had any participation in SC-46.
Their argument that their acts are actually the acts of then President Macapagal-Arroyo, absent proof of
her disapproval, must fail as the requirement that the President herself enter into these kinds of contracts
is embodied not just in any ordinary statute, but in the Constitution itself. These service contracts involving
the exploitation, development, and utilization of our natural resources are of paramount interest to the
present and future generations. Hence, safeguards were put in place to insure that the guidelines set by
law are meticulously observed and likewise to eradicate the corruption that may easily penetrate
departments and agencies by ensuring that the President has authorized or approved of these service
contracts herself.
Even under the provisions of Presidential Decree No. 87, it is required that the Petroleum Board, now the
DOE, obtain the President's approval for the execution of any contract under said statute, as shown in the
following provision:chanroblesvirtuallawlibrary
SECTION 5. Execution of contract authorized in this Act. - Every contract herein authorized shall, subject to
the approval of the President, be executed by the Petroleum Board created in this Act, after due public
notice pre-qualification and public bidding or concluded through negotiations. In case bids are requested or
if requested no bid is submitted or the bids submitted are rejected by the Petroleum Board for being
disadvantageous to the Government, the contract may be concluded through negotiation.
In opening contract areas and in selecting the best offer for petroleum operations, any of the following
alternative procedures may be resorted to by the Petroleum Board, subject to prior approval of the
President [.]
Even if we were inclined to relax the requirement in La Bugal to harmonize the 1987 Constitution with the
aforementioned provision of Presidential Decree No. 87, it must be shown that the government agency or
subordinate official has been authorized by the President to enter into such service contract for the
government. Otherwise, it should be at least shown that the President subsequently approved of such
contract explicitly. None of these circumstances is evident in the case at bar.chanRoblesvirtualLawlibrary
Service Contract No. 46 vis-a-vis Other Laws

Petitioners in G.R. No. 180771 claim that SC-46 violates Section 27 of Republic Act. No. 9147 or the Wildlife
Resources Conservation and Protection Act, which bans all marine exploration and exploitation of oil and
gas deposits. They also aver that Section 14 of Republic Act No. 7586 or the National Integrated Protected
Areas System Act of 1992 (NIPAS Act), which allows the exploration of protected areas for the purpose of
information-gathering, has been repealed by Section 27 of Republic Act No. 9147. The said petitioners
further claim that SC-46 is anathema to Republic Act No. 8550 or the Philippine Fisheries Code of 1998,
which protects the rights of the fisherfolk in the preferential use of municipal waters, with the exception
being limited only to research and survey activities.80
The FIDEC, for its part, argues that to avail of the exceptions under Section 14 of the NIPAS Act, the
gathering of information must be in accordance with a DENR-approved program, and the exploitation and
utilization of energy resources must be pursuant to a general law passed by Congress expressly for that
purpose. Since there is neither a DENR-approved program nor a general law passed by Congress, the
seismic surveys and oil drilling operations were all done illegally. 81 The FIDEC likewise contends that SC-46
infringes on its right to the preferential use of the communal fishing waters as it is denied free access
within the prohibited zone, in violation not only of the Fisheries Code but also of the 1987 Constitutional
provisions on subsistence fisherfolk and social justice.82 Furthermore, the FIDEC believes that the
provisions in Presidential Decree No. 87, which allow offshore drilling even in municipal waters, should be
deemed to have been rendered inoperative by the provisions of Republic Act No. 8550 and Republic Act
No. 7160, which reiterate the social justice provisions of the Constitution. 83
The public respondents invoke the rules on statutory construction and argue that Section 14 of the NIPAS
Act is a more particular provision and cannot be deemed to have been repealed by the more general
prohibition in Section 27 of Republic Act No. 9147. They aver that Section 14, under which SC-46 falls,
should instead be regarded as an exemption to Section 27.84
Addressing the claim of petitioners in G.R. No. 180771 that there was a violation of Section 27 of Republic
Act No. 9147, the public respondents assert that what the section prohibits is the exploration of minerals,
which as defined in the Philippine Mining Act of 1995, exclude energy materials such as coal, petroleum,
natural gas, radioactive materials and geothermal energy. Thus, since SC-46 involves oil and gas
exploration, Section 27 does not apply.85
The public respondents defend the validity of SC-46 and insist that it does not grant exclusive fishing rights
to JAPEX; hence, it does not violate the rule on preferential use of municipal waters. Moreover, they allege
that JAPEX has not banned fishing in the project area, contrary to the FIDEC's claim. The public
respondents also contest the attribution of the declining fish catch to the seismic surveys and aver that the
allegation is unfounded. They claim that according to the Bureau of Fisheries and Aquatic Resources' fish
catch data, the reduced fish catch started in the 1970s due to destructive fishing practices. 86
Ruling of the Court
On the legality of Service Contract No. 46 vis-a-vis Other Laws

Although we have already established above that SC-46 is null and void for being violative of the 1987
Constitution, it is our duty to still rule on the legality of SC-46 vis-a-vis other pertinent laws, to serve as a
guide for the Government when executing service contracts involving not only the Taon Strait, but also
other similar areas. While the petitioners allege that SC-46 is in violation of several laws, including
international ones, their arguments focus primarily on the protected status of the Taon Strait, thus this
Court will concentrate on those laws that pertain particularly to the Taon Strait as a protected seascape.
The Taon Strait is a narrow passage of water bounded by the islands of Cebu in the East and Negros in the
West. It harbors a rich biodiversity of marine life, including endangered species of dolphins and whales. For
this reason, former President Fidel V. Ramos declared the Taon Strait as a protected seascape in 1998 by
virtue of Proclamation No. 1234 - Declaring the Taon Strait situated in the Provinces of Cebu, Negros
Occidental and Negros Oriental as a Protected Area pursuant to the NIP AS Act and shall be known as
Taon Strait Protected Seascape. During former President Joseph E. Estrada's time, he also constituted the
Taon Strait Commission via Executive Order No. 76 to ensure the optimum and sustained use of the
resources in that area without threatening its marine life. He followed this with Executive Order No.
177,87wherein he included the mayor of Negros Occidental Municipality/City as a member of the Taon
Strait Commission, to represent the LGUs concerned. This Commission, however, was subsequently
abolished in 2002 by then President Gloria Macapagal-Arroyo, via Executive Order No. 72. 88
True to the constitutional policy that the "State shall protect and advance the right of the people to a
balanced and healthful ecology in accord with the rhythm and harmony of nature," 89 Congress enacted the
NIPAS Act to secure the perpetual existence of all native plants and animals through the establishment of a
comprehensive system of integrated protected areas. These areas possess common ecological values that
were incorporated into a holistic plan representative of our natural heritage. The system encompasses
outstandingly remarkable areas and biologically important public lands that are habitats of rare and
endangered species of plants and animals, biogeographic zones and related ecosystems, whether
terrestrial, wetland, or marine.90 It classifies and administers all the designated protected areas to maintain
essential ecological processes and life-support systems, to preserve genetic diversity, to ensure
sustainable use of resources found therein, and to maintain their natural conditions to the greatest extent

possible.91 The following categories of protected areas were established under the NIPAS
Act:chanroblesvirtuallawlibrary
a. Strict nature reserve;
b. Natural park;
c. Natural monument;
d. Wildlife sanctuary;
e. Protected landscapes and seascapes;
f.

Resource reserve;

g. Natural biotic areas; and

h. Other categories established by law, conventions or international agreements which the Philippine
Government is a signatory.92
Under Section 4 of the NIPAS Act, a protected area refers to portions of land and water, set aside due to
their unique physical and biological significance, managed to enhance biological diversity and protected
against human exploitation.
The Taon Strait, pursuant to Proclamation No. 1234, was set aside and declared a protected area under
the category of Protected Seascape. The NIPAS Act defines a Protected Seascape to be an area of national
significance characterized by the harmonious interaction of man and land while providing opportunities for
public enjoyment through recreation and tourism within the normal lifestyle and economic activity of this
areas;93 thus a management plan for each area must be designed to protect and enhance the permanent
preservation of its natural conditions.94 Consistent with this endeavor is the requirement that an
Environmental Impact Assessment (EIA) be made prior to undertaking any activity outside the scope of the
management plan. Unless an ECC under the EIA system is obtained, no activity inconsistent with the goals
of the NIPAS Act shall be implemented.95
The Environmental Impact Statement System (EISS) was established in 1978 under Presidential Decree No.
1586. It prohibits any person, partnership or corporation from undertaking or operating any declared
environmentally critical project or areas without first securing an ECC issued by the President or his duly
authorized representative.96 Pursuant to the EISS, which called for the proper management of
environmentally critical areas,97 Proclamation No. 214698 was enacted, identifying the areas and types of
projects to be considered as environmentally critical and within the scope of the EISS, while DENR
Administrative Order No. 2003-30 provided for its Implementing Rules and Regulations (IRR).
DENR Administrative Order No. 2003-30 defines an environmentally critical area as "an area delineated as
environmentally sensitive such that significant environmental impacts are expected if certain types of
proposed projects or programs are located, developed, or implemented in it"; 99 thus, before a project,
which is "any activity, regardless of scale or magnitude, which may have significant impact on the
environment,"100 is undertaken in it, such project must undergo an EIA to evaluate and predict the likely
impacts of all its stages on the environment.101 An EIA is described in detail as
follows:chanroblesvirtuallawlibrary

h.

Environmental Impact Assessment (EIA) - process that involves evaluating and predicting the likely
impacts of a project (including cumulative impacts) on the environment during construction,
commissioning, operation and abandonment. It also includes designing appropriate preventive,
mitigating and enhancement measures addressing these consequences to protect the environment
and the community's welfare. The process is undertaken by, among others, the project proponent
and/or EIA Consultant, EMB, a Review Committee, affected communities and other stakeholders. 102

Under Proclamation No. 2146, the Taon Strait is an environmentally critical area, having been
declared as a protected area in 1998; therefore, any activity outside the scope of its
management plan may only be implemented pursuant to an ECC secured after undergoing an
EIA to determine the effects of such activity on its ecological system.
The public respondents argue that they had complied with the procedures in obtaining an ECC 103 and that
SC-46 falls under the exceptions in Section 14 of the NIPAS Act, due to the following reasons:
1) The Taon Strait is not a strict nature reserve or natural park;
2) Exploration is only for the purpose of gathering information on possible energy resources; and

3) Measures are undertaken to ensure that the exploration is being done with the least damage to
surrounding areas.104
We do not agree with the arguments raised by the public respondents.
Sections 12 and 14 of the NIPAS Act read:chanroblesvirtuallawlibrary
SECTION 12. Environmental Impact Assessment. - Proposals for activities which are outside the scope of
the management plan for protected areas shall be subject to an environmental impact assessment as
required by law before they are adopted, and the results thereof shall be taken into consideration in the
decision-making process.
No actual implementation of such activities shall be allowed without the required Environmental
Compliance Certificate (ECC) under the Philippine Environmental Impact Assessment (EIA) system. In
instances where such activities are allowed to be undertaken, the proponent shall plan and carry them out
in such manner as will minimize any adverse effects and take preventive and remedial action when
appropriate. The proponent shall be liable for any damage due to lack of caution or indiscretion.
SECTION 14. Survey for Energy Resources. - Consistent with the policies declared in Section 2 hereof,
protected areas, except strict nature reserves and natural parks, may be subjected to exploration only for
the purpose of gathering information on energy resources and only if such activity is carried out with the
least damage to surrounding areas. Surveys shall be conducted only in accordance with a program
approved by the DENR, and the result of such surveys shall be made available to the public and submitted
to the President for recommendation to Congress. Any exploitation and utilization of energy resources
found within NIPAS areas shall be allowed only through a law passed by Congress.
It is true that the restrictions found under the NIPAS Act are not without exceptions. However, while an
exploration done for the purpose of surveying for energy resources is allowed under Section
14 of the NIPAS Act, this does not mean that it is exempt from the requirement to undergo an
EIA under Section 12. In Sotto v. Sotto,105 this Court explained why a statute should be construed as a
whole:chanroblesvirtuallawlibrary
A statute is passed as a whole and not in parts or sections and is animated by one general purpose and
intent. Consequently each part or section should be construed in connection with every other part or
section and so as to produce a harmonious whole. It is not proper to confine the attention to the one
section to be construed. It is always an unsafe way of construing a statute or contract to divide it by a
process of etymological dissection, into separate words, and then apply to each, thus separated from its
context, some particular definition given by lexicographers, and then reconstruct the instrument upon the
basis of these definitions. An instrument must always be construed as a whole, and the particular meaning
to be attached to any word or phrase is usually to be ascertained from the context, the nature of the
subject treated of and the purpose or intention of the parties who executed the contract, or of the body
which enacted or framed the statute or constitution, x x x.
Surveying for energy resources under Section 14 is not an exemption from complying with the
EIA requirement in Section 12; instead, Section 14 provides for additional requisites before
any exploration for energy resources may be done in protected areas.
The rationale for such additional requirements are incorporated in Section 2 of the NIPAS Act, to
wit:chanroblesvirtuallawlibrary
SECTION 2. Declaration of Policy - Cognizant of the profound impact of man's activities on all components
of the natural environment particularly the effect of increasing population, resource exploitation and
industrial advancement amd recognizing the critical importance of protecting and maintaining the natural
biological and physical diversities of the environment notably on areas with biologically unique features to
sustain human life and development, as well as plant and animal life, it is hereby declared the policy of the
State to secure for the Filipino people of present and future generations the perpetual existence of all
native plants and animals through the establishment of a comprehensive system of integrated protected
areas within the classification of national park as provided for in the Constitution.
It is hereby recognized that these areas, although distinct in features, possess common ecological values
that may be incorporated into a holistic plan representative of our natural heritage; that effective
administration of this area is possible only through cooperation among national government, local
government and concerned private organizations; that the use and enjoyment of these protected areas
must be consistent with the principles of biological diversity and sustainable development.
To this end, there is hereby established a National Integrated Protected Areas System (NIPAS), which shall
encompass outstandingly remarkable areas and biologically important public lands that are habitats of rare
and endangered species of plants and animals, biogeographic zones and related ecosystems, whether
terrestrial, wetland or marine, all of which shall be designated as "protected areas."
The public respondents themselves admitted that JAPEX only started to secure an ECC prior to the second
sub-phase of SC-46, which required the drilling of an oil exploration well. This means that when the seismic

surveys were done in the Taon Strait, no such environmental impact evaluation was done. Unless seismic
surveys are part of the management plan of the Taon Strait, such surveys were dona in violation of
Section 12 of the NIPAS Act and Section 4 of Presidential Decree No. 1586, which
provides:chanroblesvirtuallawlibrary
Section 4. Presidential Proclamation of Environmentally Critical Areas and Projects. - The President of the
Philippines may, on his own initiative or upon recommendation of the National Environmental Protection
Council, by proclamation declare certain projects, undertakings or areas in the country as environmentally
critical. No person, partnership or corporation shall undertake or operate any such declared
environmentally critical project or area without first securing an Environmental Compliance Certificate
issued by the President or his duly authorized representative. For the proper management of said critical
project or area, the President may by his proclamation reorganize such government offices, agencies,
institutions, corporations or instrumentalities including the re-alignment of government personnel, and
their specific functions and responsibilities.
For the same purpose as above, the Ministry of Human Settlements shall: (a) prepare the proper land or
water use pattern for said critical project(s) or area(s); (b) establish ambient environmental quality
standards; (c) develop a program of environmental enhancement or protective measures against
calamitous factors such as earthquakes, floods, water erosion and others, and (d) perform such other
functions as may be directed by the President from time to time.
The respondents' subsequent compliance with the EISS for the second sub-phase of SC-46 cannot and will
not cure this violation. The following penalties are provided for under Presidential Decree No. 1586 and the
NIPAS Act.
Section 9 of Presidential Decree No. 1586 provides for the penalty involving violations of the ECC
requirement:chanroblesvirtuallawlibrary
Section 9. Penalty for Violation. - Any person, corporation or partnership found violating Section 4 of this
Decree, or the terms and conditions in the issuance of the Environmental Compliance Certificate, or of the
standards, rules and regulations issued by the National Environmental Protection Council pursuant to this
Decree shall be punished by thesuspension or cancellation of his/its certificates and/or a fine in an
amount not to exceed Fifty Thousand Pesos (P50,000.00) for every violation thereof, at the
discretion of the National Environmental Protection Council. (Emphasis supplied.)
Violations of the NIPAS Act entails the following fines and/or imprisonment under Section
21:chanroblesvirtuallawlibrary
SECTION 21. Penalties. - Whoever violates this Act or any rules and regulations issued by the Department
pursuant to this Act or whoever is found guilty by a competent court of justice of any of the offenses in the
preceding section shall be fined in the amount of not less than Five thousand pesos (P5,000) nor
more than Five hundred thousand pesos (P500,000), exclusive of the value of the thing
damaged or imprisonment for not less than one (1) year but not more than six (6) years, or
both, as determined by the court: Provided, that, if the area requires rehabilitation or
restoration as determined by the court, the offender shall be required to restore or
compensate for the restoration to the damages: Provided, further, that court shall order the
eviction of the offender from the land and the forfeiture in favor of the Government of all
minerals, timber or any species collected or removed including all equipment, devices and
firearms used in connection therewith, and any construction or improvement made thereon by
the offender. If the offender is an association or corporation, the president or manager shall be directly
responsible for the act of his employees and laborers: Provided, finally, that the DENR may impose
administrative fines and penalties consistent with this Act. (Emphases supplied.)
Moreover, SC-46 was not executed for the mere purpose of gathering information on the possible energy
resources in the Taon Strait as it also provides for the parties' rights and obligations relating to extraction
and petroleum production should oil in commercial quantities be found to exist in the area. While
Presidential Decree No. 87 may serve as the general law upon which a service contract for
petroleum exploration and extraction may be authorized, the exploitation and utilization of
this energy resource in the present case may be allowed only through a law passed by
Congress, since the Taon Strait is a NIPAS area.106Since there is no such law specifically
allowing oil exploration and/or extraction in the Taon Strait, no energy resource exploitation
and utilization may be done in said protected seascape.
In view of the foregoing premises and conclusions, it is no longer necessary to discuss the other issues
raised in these consolidated petitions.cralawred
WHEREFORE, the Petitions in G.R. Nos. 180771 and 181527 are GRANTED, Service Contract No. 46 is
hereby declared NULL AND VOID for violating the 1987 Constitution, Republic Act No. 7586, and
Presidential Decree No. 1586.
SO ORDERED.

Republic 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 lgnacioRikken, 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.
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, 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 BORROMEOGARCIA, 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.
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. 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- inintervention, 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,31in 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 (RHIRR),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."76The 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,93Magallona 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 of102
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 medicallysafe, 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 noncoercion."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 nonabortive, 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 welldefined 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-IRR 173 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
The Court's Position
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, selfdevelopment, 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 selfexecuting, 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, intrauterine 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.195As 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.1wphi1 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.218Underlying 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.]
The Court's Position
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 Secretary 228 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?
Senior State Solicitor Hilbay:
Ahh, Your Honor, ..
Justice De Castro:

What is the compelling State interest to impose this burden?

Senior State Solicitor Hilbay:
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 ageappropriate 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-appropriatereproductive 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
principles259 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
Congress263 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 non- government 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, nonabortifacient, 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.268Thus:
(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 "noabortion" 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.

G.R. No. 209271, December 08, 2015

INTERNATIONAL SERVICE FOR THE ACQUISITION OF AGRI-BIOTECH APPLICATIONS,
INC., Petitioner, v. GREENPEACE SOUTHEAST ASIA (PHILIPPINES), MAGSASAKA AT SIYENTIPIKO
SA PAGPAPAUNLAD NG AGRIKULTURA (MASIPAG), REP. TEODORO CASIO, DR. BEN MALAYANG
III, DR. ANGELINA GALANG, LEONARDO AVILA III, CATHERINE UNTALAN, ATTY. MARIA PAZ LUNA,
JUANITO MODINA, DAGOHOY MAGAWAY, DR. ROMEO QUIJANO, DR. WENCESLAO KIAT, JR., ATTY.
H. HARRY ROQUE, JR., FORMER SEN. ORLANDO MERCADO, NOEL CABANGON, MAYOR EDWARD
S. HAGEDORN AND EDWIN MARTHINE LOPEZ, Respondents.
CROP LIFE PHILIPPINES, INC., Petitioner-in-Intervention.
G.R. No. 209276
ENVIRONMENTAL MANAGEMENT BUREAU OF THE DEPARTMENT OF ENVIRONMENT AND
NATURAL RESOURCES, BUREAU OF PLANT INDUSTRY AND FERTILIZER AND PESTICIDE
AUTHORITY OF THE DEPARTMENT OF AGRICULTURE, Petitioners, v. COURT OF APPEALS,
GREENPEACE SOUTHEAST ASIA (PHILIPPINES), MAGSASAKAAT SIYENTIPIKO SA PAGPAPAUNLAD
NG AGRIKULTURA (MASIPAG), REP. TEODORO CASINO, DR. BEN MALAYANG III, DR. ANGELINA
GALANG, LEONARDO AVILA III, CATHERINE UNTALAN, ATTY. MARIA PAZ LUNA, JUANITO MODINA,
DAGOHOY MAGAWAY, DR. ROMEO QUIJANO, DR. WENCESLAO KIAT, JR., ATTY. H. HARRY ROQUE,
JR., FORMER SEN. ORLANDO MERCADO, NOEL CABANGON, MAYOR EDWARD S. HAGEDORN AND
EDWIN MARTHINE LOPEZ, RESPONDENTS. CROP LIFE PHILIPPINES, INC. Petitioner-in-Intervention.
G.R. No. 209301
UNIVERSITY OF THE PHILIPPINES LOS BANOS FOUNDATION, INC., Petitioner, v. GREENPEACE
SOUTHEAST ASIA (PHILIPPINES), MAGSASAKAAT SIYENTIPIKO SA PAGPAPAUNLAD NG
AGRIKULTURA (MASIPAG), REP. TEODORO CASINO, DR. BEN MALAYANG III, DR. ANGELINA
GALANG, LEONARDO AVILA III, CATHERINE UNTALAN, ATTY. MARIA PAZ LUNA, JUANITO MODINA,
DAGOHOY MAGAWAY, DR. ROMEO QUIJANO, DR. WENCESLAO KIAT, JR., ATTY. HARRY R. ROQUE,
JR., FORMER SEN. ORLANDO MERCADO, NOEL CABANGON, MAYOR EDWARD S. HAGEDORN AND
EDWIN MARTHINE LOPEZ, Respondents.
G.R. No. 209430
UNIVERSITY OF THE PHILIPPINES, Petitioner, v. GREENPEACE SOUTHEAST ASIA (PHILIPPINES),
MAGSASAKAAT SIYENTIPIKO SA PAGPAPAUNLAD NG AGRIKULTURA (MASIPAG), REP. TEODORO
CASINO, DR. BEN MALAYANG III, DR. ANGELINA GALANG, LEONARDO AVILA III, CATHERINE
UNTALAN, ATTY. MARIA PAZ LUNA, JUANITO MODINA, DAGOHOY MAGAWAY, DR. ROMEO
QUIJANO, DR. WENCESLAO KIAT, ATTY. HARRY R. ROQUE, JR., FORMER SEN. ORLANDO
MERCADO, NOEL CABANGON, MAYOR EDWARD S. HAGEDORN AND EDWIN MARTHINE
LOPEZ, Respondents.
DECISION
VILLARAMA, JR., J.:
The consolidated petitions before Us seek the reversal of the Decision 1 dated May 17, 2013 and
Resolution2 dated September 20, 2013 of the Court of Appeals (CA) in CA-G.R. SP No. 00013 which
permanently enjoined the conduct of field trials for genetically modified eggplant.
The Parties

Respondent Greenpeace Southeast Asia (Philippines) is the Philippine branch of Greenpeace Southeast
Asia, a regional office of Greenpeace International registered in Thailand. 3 Greenpeace is a nongovernmental environmental organization which operates in over 40 countries and with an international
coordinating body in Amsterdam, Netherlands. It is well known for independent direct actions in the global
campaign to preserve the environment and promote peace.
Petitioner International Service for the Acquisition of Agri-Biotech Applications, Inc. (ISAAA) is an
international non-profit organization founded in 1990 "to facilitate the acquisition and transfer of
agricultural biotechnology applications from the industrial countries, for the benefit of resource-poor
farmers in the developing world" and ultimately "to alleviate hunger and poverty in the developing
countries." Partly funded by the United States Agency for International Development (USAID), ISAAA
promotes the use of agricultural biotechnology, such as genetically modified organisms (GMOs). 4
Respondent Magsasaka at Siyentipiko sa Pagpapaunlad ng Agrikultura (MASIPAG) is a coalition of local
farmers, scientists and NGOs working towards "the sustainable use and management of biodiversity
through farmers' control of genetic and biological resources, agricultural production, and associated

knowledge."
The University of the Philippines Los Bafios (UPLB) is an autonomous constituent of the University of the
Philippines (UP), originally established as the UP College of Agriculture. It is the center of biotechnology
education and research in Southeast Asia and home to at least four international research and extension
centers. Petitioner UPLB Foundation, Inc. (UPLBFI) is a private corporation organized "to be an instrument
for institutionalizing a rational system of utilizing UPLB expertise and other assets for generating additional
revenues and other resources needed by [UPLB]". Its main purpose is to assist UPLB in "expanding and
optimally utilizing its human, financial, and material resources towards a focused thrust in agriculture,
biotechnology, engineering and environmental sciences and related academic programs and activities." A
memorandum of agreement between UPLBFI and UPLB allows the former to use available facilities for its
activities and the latter to designate from among its staff such personnel needed by projects. 5
Petitioner University of the Philippines (UP) is an institution of higher learning founded in 1908. Under its
new charter, Republic Act 9500,6 approved on April 29, 2008 by President Gloria Macapagal-Arroyo, UP was
declared as the national university tasked "to perform its unique and distinctive leadership in higher
education and development." Among others, UP was mandated to "serve as a research university in
various fields of expertise and specialization by conducting basic and applied research and development,
and promoting research in various colleges and universities, and contributing to the dissemination and
application of knowledge."7
The other individual respondents are Filipino scientists, professors, public officials and ordinary citizens
invoking their constitutionally guaranteed right to health and balanced ecology, and suing on their behalf
and on behalf of future generations of Filipinos.
Factual Background

Biotechnology is a multi-disciplinary field which may be defined as "any technique that uses living
organisms or substances from those organisms to make or modify a product, to improve plants or animals,
or to develop microorganisms for specific uses."8 Its many applications include agricultural production,
livestock, industrial chemicals and pharmaceuticals.
In 1979, President Ferdinand Marcos approved and provided funding for the establishment of the National
Institute for Applied Microbiology and Biotechnology (BIOTECH) at UPLB. It is the premier national research
and development (R & D) institution applying traditional and modern biotechnologies in innovating
products, processes, testing and analytical services for agriculture, health, energy, industry and
development.9
In 1990, President Corazon C. Aquino signed Executive Order (EO) No. 430 creating the National
Committee on Biosafety of the Philippines (NCBP). NCBP was tasked, among others, to "identify and
evaluate potential hazards involved in initiating genetic engineering experiments or the introduction of
new species and genetically engineered organisms and recommend measures to minimize risks" and to
"formulate and review national policies and guidelines on biosafety, such as the safe conduct of work on
genetic engineering, pests and their genetic materials for the protection of public health, environment and
personnel and supervise the implementation thereof."
In 1991, NCBP formulated the Philippine Biosafety Guidelines, which governs the regulation of the
importation or introduction, movement and field release of potentially hazardous biological materials in the
Philippines. The guidelines also describe the required physical and biological containment and safety
procedures in handling biological materials. This was followed in 1998 by the "Guidelines on Planned
Release of Genetically Manipulated Organisms (GMOs) and Potentially Harmful Exotic Species (PHES)."10
On December 29, 1993, the Convention on Biological Diversity (CBD) came into force. This multilateral
treaty recognized that "modern biotechnology has great potential for human well-being if developed and
used with adequate safety measures for the environment and human health." Its main objectives, as
spelled out in Article 1, are the "conservation of biological diversity, the sustainable use of its components
and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources."
In January 2000, an agreement was reached on the Cartagena Protocol on Biosafety (Cartagena Protocol),
a supplemental to the CBD. The Cartagena Protocol aims "to contribute to ensuring an adequate level of
the safe transfer, handling and use of living modified organisms resulting from modern biotechnology that
may have adverse effects on the conservation and sustainable use of biological diversity, taking into
account risks to human health, and specifically focusing on transboundary movements."
On May 24, 2000, the Philippines signed the Cartagena Protocol, which came into force on September 11,
2003. On August 14, 2006, the Philippine Senate adopted Senate Resolution No. 92 or the "Resolution
Concurring in the Ratification of the Cartagena Protocol on Biosafety (CPB) to the UN Convention on
Biological Diversity."
On July 16, 2001, President Gloria Macapagal-Arroyo issued a policy statement reiterating the government
policy of promoting the safe and responsible use of modern biotechnology and its products as one of
several means to achieve and sustain food security, equitable access to health services, sustainable and

safe environment and industry development.11

In April 2002, the Department of Agriculture (DA) issued DA-Administrative Order (AO) No. 08 providing
rules and regulations for the importation and release into the environment of plants and plant products
derived from the use of modem biotechnology.
DAO-08-2002 covers the importation or release into the environment of: (1) any plant which has been
altered or produced through the use of modem biotechnology if the donor organism, host organism, or
vector or vector agent belongs to the genera or taxa classified by the Bureau of Plant Industry (BPI) as
meeting the definition of plant pest or is a medium for the introduction of noxious weeds; or (2) any plant
or plant product altered through the use of modem biotechnology which may pose significant risks to
human health and the environment based on available scientific and technical information.
The country's biosafety regulatory system was further strengthened with the issuance of EO No. 514 (EO
514) on March 17, 2006, "Establishing the National Biosafety Framework (NBF), Prescribing Guidelines for
its Implementation, and Strengthening the NCBP." The NBF shall apply to the development, adoption and
implementation of all biosafety policies, measures and guidelines and in making decisions concerning the
research, development, handling and use, transboundary movement, release into the environment and
management of regulated articles.12
EO 514 expressly provides that, unless amended by the issuing departments or agencies, DAO 08-2002,
the NCBP Guidelines on the Contained Use of Genetically Modified Organisms, except for provisions on
potentially harmful exotic species which were repealed, and all issuances of the Bureau of Food and Drugs
Authority (FDA) on products of modem biotechnology, shall continue to be in force and effect. 13
On September 24, 2010, a Memorandum of Undertaking14 (MOU) was executed between UPLBFI, ISAAA
and UP Mindanao Foundation, Inc.
(UPMFI), in pursuance of a collaborative research and development project on eggplants that are resistant
to the fruit and shoot borer. Other partner agencies involved in the project were UPLB through its Institute
of Plant Breeding, Maharastra Hybrid Seed Company (MAHYCO) of India, Cornell University and the
Agricultural Biotechnology Support Project II (ABSPII) of US AID.
As indicated in the Field Trial Proposal15 submitted by the implementing institution (UPLB), the pestresistant crop subject of the field trial was described as a "bioengineered eggplant." The crystal toxin
genes from the soil bacterium Bacillus thuringiensis (Bt) were incorporated into the eggplant (talong)
genome to produce the protein CrylAc which is toxic to the target insect pests. CrylAc protein is said to be
highly specific to lepidopteran larvae such as the fruit and shoot borer (FSB), the most destructive insect
pest of eggplant.
Under the regulatory supervision of NCBP, a contained experiment was started in 2007 and officially
completed on March 3, 2009. The NCBP thus issued a Certificate of Completion of Contained Experiment
stating that "During the conduct of the experiment, all the biosafety measures have been complied with
and no untoward incident has occurred."16
BPI issued Biosafety Permits17 to UPLB on March 16, 2010 and June 28, 2010. Thereafter, field testing of Bt
talong commenced on various dates in the following approved trial sites: Kabacan, North Cotabato; Sta.
Maria, Pangasinan; Pili, Camarines Sur; Bago Oshiro, Davao City; and Bay, Laguna.
On April 26, 2012, Greenpeace, MASIPAG and individual respondents (Greenpeace, et al.) filed a petition
for writ of kalikasan and writ of continuing mandamus with prayer for the issuance of a Temporary
Environmental Protection Order (TEPO). They alleged that the Bt talong field trials violate their
constitutional right to health and a balanced ecology considering that (1) the required environmental
compliance certificate under Presidential Decree (PD) No. 1151 was not secured prior to the project
implementation; (2) as a regulated article under DAO 08-2002, Bt talong is presumed harmful to human
health and the environment, and there is no independent, peer-reviewed study on the safety of Bt
talong for human consumption and the environment; (3) a study conducted by Professor Gilles-Eric Seralini
showed adverse effects on rats who were fed Bt corn, while local scientists also attested to the harmful
effects of GMOs to human and animal health; (4) Bt crops can be directly toxic to non-target species as
highlighted by a research conducted in the US which demonstrated that pollen from Bt maize was toxic to
the Monarch butterfly; (5) data from the use of Bt CrylAb maize indicate that beneficial insects have
increased mortality when fed on larvae of a maize pest, the corn borer, which had been fed on Bt, and
hence non-target beneficial species that may feed on eggplant could be similarly affected; (6) data from
China show that the use of Bt crops (Bt cotton) can exacerbate populations of other secondary pests; (7)
the built-in pesticides of Bt crops will lead to Bt resistant pests, thus increasing the use of pesticides
contrary to the claims by GMO manufacturers; and (8) the 200 meters perimeter pollen trap area in the
field testing area set by BPI is not sufficient to stop contamination of nearby non-Bt eggplants because
pollinators such as honeybees can fly as far as four kilometers and an eggplant is 48% insect-pollinated.
The full acceptance by the project proponents of the findings in the MAHYCO Dossier was strongly assailed
on the ground that these do not precisely and adequately assess the numerous hazards posed byBt
talong and its field trial.
Greenpeace, et al. further claimed that the Bt talong field test project did not comply with the required
public consultation under Sections 26 & 27 of theLocal Government Code, A random survey by Greenpeace

on July 21, 2011 revealed that ten households living in the area immediately around the Bt
talong experimental farm in Bay, Laguna expressed lack of knowledge about the field testing in their
locality. The Sangguniang Barangay of Pangasugan in Baybay, Leyte complained about the lack of
information on the nature and uncertainties of the Bt talong field testing in their barangay. The Davao City
Government likewise opposed the project due to lack of transparency and public consultation. It ordered
the uprooting of Bt eggplants at the trial site and disposed them strictly in accordance with protocols
relayed by the BPI through Ms. Merle Palacpac. Such action highlighted the city government's policy on
"sustainable and safe practices." On the other hand, the Sangguniang Bayan of Sta. Barbara, Iloilo passed
a resolution suspending the field testing due to the following: lack of public consultation; absence of
adequate study to determine the effect of Bt talong field testing on friendly insects; absence of risk
assessment on the potential impacts of genetically modified (GM) crops on human health and the
environment; and the possibility of cross-pollination of Bteggplants with native species or variety of
eggplants, and serious threat to human health if these products were sold to the market.
Greenpeace, et al. argued that this case calls for the application of the precautionary principle, the Bt
talong field testing being a classic environmental case where scientific evidence as to the health,
environmental and socio-economic safety is insufficient or uncertain and preliminary scientific evaluation
indicates reasonable grounds for concern that there are potentially dangerous effects on human health and
the environment.
The following reliefs are thus prayed for:
a. Upon the filing [of this petition], a Temporary Environment Protection Order should be issued: (i)
enjoining public respondents BPI and FPA of the DA from processing for field testing, and registering as
herbicidal product, Bt talong in the Philippines; (ii) stopping all pending field testing of Bt talong anywhere
in the Philippines; and (in) ordering the uprooting of planted Bt talong for field trials as their very presence
pose significant and irreparable risks to human health and the environment.
b. Upon the filing [of this petition], issue a writ of continuing mandamus commanding:
(i) Respondents to submit to and undergo the process of environmental impact statement system under
the Environmental Management Bureau;
(ii) Respondents to submit independent, comprehensive, and rigid risk assessment, field tests report,
regulatory compliance reports and supporting documents, and other material particulars of the Bt
talong field trial;
(iii) Respondents to submit all its issued certifications on public information, public consultation, public
participation, and consent of the local government units in the barangays, municipalities, and provinces
affected by the field testing of Bt talong;
(iv) Respondent regulator, in coordination with relevant government agencies and in consultation with
stakeholders, to submit an acceptable draft of an amendment of the National Bio-Safety Framework of the
Philippines, and DA Administrative Order No. 08, defining or incorporating an independent, transparent,
and comprehensive scientific and socio-economic risk assessment, public information, consultation, and
participation, and providing for their effective implementation, in accord with international safety
standards; and,
(v) Respondent BPI of the DA, in coordination with relevant government agencies, to conduct balanced
nationwide public information on the nature of Bt talong and Bt talong field trial, and a survey of social
acceptability of the same.
c. Upon filing [of this petition], issue a writ of kalikasan commanding Respondents to file their respective
returns and explain why they should not be judicially sanctioned for violating or threatening to violate or
allowing the violation of the above-enumerated laws, principles, and international principle and standards,
or committing acts, which would result into an environmental damage of such magnitude as to prejudice
the life, health, or property of petitioners in particular and of the Filipino people in general.
d. After hearing and judicial determination, to cancel all Bt talong field experiments that are found to be
violating the abovementioned laws, principles, and international standards; and recommend to Congress
curative legislations to effectuate such order. 18ChanRoblesVirtualawlibrary
On May 2, 2012, the Court issued the writ of kalikasan against ISAAA, Environmental Management Bureau
(EMB)/BPI/Fertilizer and Pesticide Authority (FPA) and UPLB,18-a ordering them to make a verified return
within a non-extendible period often (10) days, as provided in Sec. 8, Rule 7 of the Rules of Procedure for
Environmental Cases.19
ISAAA, EMB/BPI/FPA, UPLBFI and UPMFI filed their respective verified returns. They all argued that the
issuance of writ of kalikasan is not proper because in the implementation of the Bt talong project, all
environmental laws were complied with, including public consultations in the affected communities, to
ensure that the people's right to a balanced and healthful ecology was protected and respected. They also
asserted that the Bt talong project is not covered by the Philippine Environmental Impact Statement (PEIS)
Law and that Bt talong field trials will not significantly affect the quality of the environment nor pose a

hazard to human health. ISAAA contended that the NBF amply safeguards the environment policies and
goals promoted by the PEIS Law. On its part, UPLBFI asserted that there is a "plethora of scientific works
and literature, peer-reviewed, on the safety of Bt talong for human consumption."20UPLB, which filed an
Answer21 to the petition before the CA, adopted said position of UPLBFI.
ISAAA argued that the allegations regarding the safety of Bt talong as food are irrelevant in the field trial
stage as none of the eggplants will be consumed by humans or animals, and all materials that will not be
used for analyses will be chopped, boiled and buried following the Biosafety Permit requirements. It cited a
50-year history of safe use and consumption of agricultural products sprayed with commercial Bt microbial
pesticides and a 14-year history of safe consumption of food and feed derived from Bt crops. Also
mentioned is the almost 2 million hectares of land in the Philippines which have been planted withBt corn
since 2003, and the absence of documented significant and negative impact to the environment and
human health. The statements given by scientists and experts in support of the allegations of Greenpeace,
et al. on the safety of Bt corn was also addressed by citing the contrary findings in other studies which
have been peer-reviewed and published in scientific journals.
On the procedural aspect, ISAAA sought the dismissal of the petition for writ of kalikasan for nonobservance of the rule on hierarchy of courts and the allegations therein being mere assertions and
baseless conclusions of law. EMB, BPI and FPA questioned the legal standing of Greenpeace, et al. in filing
the petition for writ of kalikasan as they do not stand to suffer any direct injury as a result of the Bt
talong field tests. They likewise prayed for the denial of the petition for continuing mandamus for failure to
state a cause of action and for utter lack of merit.
UPMFI also questioned the legal standing of Greenpeace, et al. for failing to allege that they have been
prejudiced or damaged, or their constitutional rights to health and a balanced ecology were violated or
threatened to be violated by the conduct of Bt talong field trials. Insofar as the field trials in Davao City,
the actual field trials at Bago Oshiro started on November 25, 2010 but the plants were uprooted by Davao
City officials on December 17-18, 2010. There were no further field trials conducted and hence no violation
of constitutional rights of persons or damage to the environment, with respect to Davao City, occurred
which will justify the issuance of a writ of kalikasan. UPMFI emphasized that under the MOU, its
responsibility was only to handle the funds for the project in their trial site. It pointed out that in the Field
Trial Proposal, Public Information Sheet, Biosafety Permit for Field Testing, and Terminal Report (Davao City
Government) by respondent Leonardo R. Avila III, nowhere does UPMFI appear either as project proponent,
partner or implementing arm. Since UPMFI, which is separate and distinct from UP, undertook only the fund
management of Bt talong field test project the duration of which expired on July 1, 2011, it had nothing to
do with any field trials conducted in other parts of the country.
Finally, it is argued that the precautionary principle is not applicable considering that the field testing is
only a part of a continuing study being done to ensure that the field trials have no significant and negative
impact on the environment. There is thus no resulting environmental damage of such magnitude as to
prejudice the life, health, property of inhabitants in two or more cities or provinces. Moreover, the issues
raised by Greenpeace, et al. largely involve technical matters which pertain to the special competence of
BPI whose determination thereon is entitled to great respect and even finality.
By Resolution dated July 10, 2012, the Court referred this case to the CA for acceptance of the return of the
writ and for hearing, reception of evidence and rendition of judgment. 22
CA Proceedings and Judgment

At the preliminary conference held on September 12, 2012, the parties submitted the following procedural
issues: (1) whether or not Greenpeace, et al. have legal standing to file the petition for writ of kalikasan;
(2) whether or not said petition had been rendered moot and academic by the alleged termination of
the Bt talong field testing; and (3) whether or not the case presented a justiciable controversy.
Under Resolution23 dated October 12, 2012, the CA resolved that: (1) Greenpeace, et al. possess the
requisite legal standing to file the petition for writ ofkalikasan; (2) assuming arguendo that the field trials
have already been terminated, the case is not yet moot since it is capable of repetition yet evading review;
and (3) the alleged non-compliance with environmental and local government laws present justiciable
controversies for resolution by the court.
The CA then proceeded to hear the merits of the case, adopting the "hot-tub" method wherein the expert
witnesses of both parties testify at the same time. Greenpeace, et al. presented the following as expert
witnesses: Dr. Ben Malayang III (Dr. Malayang), Dr. Charito Medina (Dr. Medina), and Dr. Tushar Chakraborty
(Dr. Chakraborty). On the opposing side were the expert witnesses in the persons of Dr. Reynaldo Ebora
(Dr. Ebora), Dr. Saturnina Halos (Dr. Halos), Dr. Flerida Cario (Dr. Cario), and Dr. Peter Davies (Dr.
Davies). Other witnesses who testified were: Atty. Carmelo Segui (Atty. Segui), Ms. Merle Palacpac (Ms.
Palacpac), Mr. Mario Navasero (Mr. Navasero) and Dr. Randy Hautea (Dr. Hautea).
On November 20, 2012, Biotechnology Coalition of the Philippines, Inc. (BCPI) filed an Urgent Motion for
Leave to Intervene as Respondent.24 It claimed to have a legal interest in the subject matter of the case as
a broad-based coalition of advocates for the advancement of modern biotechnology in the Philippines.

In its Resolution25 dated January 16, 2013, the CA denied BCPI's motion for intervention stating that the
latter had no direct and specific interest in the conduct of Bt talong field trials.
On May 17, 2013, the CA rendered a Decision in favor of Greenpeace, et al., as follows:
WHEREFORE, in view of the foregoing premises, judgment is hereby rendered by us GRANTING the
petition filed in this case. The respondents are DIRECTED to:chanRoblesvirtualLawlibrary
(a) Permanently cease and desist from further conducting bt talong field trials; and
(b) Protect, preserve, rehabilitate and restore the environment in accordance with the foregoing judgment
of this Court.
No costs.
SO ORDERED.26ChanRoblesVirtualawlibrary
The CA found that existing regulations issued by the DA and the Department of Science and Technology
(DOST) are insufficient to guarantee the safety of the environment and health of the people. Concurring
with Dr. Malayang's view that the government must exercise precaution "under the realm of public policy"
and beyond scientific debate, the appellate court noted the possible irreversible effects of the field trials
and the introduction of Bt talong to the market.
After scrutinizing the parties' arguments and evidence, the CA concluded that the precautionary principle
set forth in Section 1, Rule 20 of the Rules of Procedure for Environmental Cases27 finds relevance in the
present controversy. Stressing the fact that the "over-all safety guarantee of the bt talong" remains
unknown, the appellate court cited the testimony of Dr. Cario who admitted that the product is not yet
safe for consumption because a safety assessment is still to be done. Again, the Decision quoted from Dr.
Malayang who testified that the question of Bt talong's safety demands maximum precaution and utmost
prudence, bearing in mind the country's rich biodiversity. Amid the uncertainties surrounding the Bt talong,
the CA thus upheld the primacy of the people's constitutional right to health and a balanced ecology.
Denying the motions for reconsideration filed by ISAAA, EMB/BPI/FPA, UPLB and UPLBFI, the CA in its
Resolution dated September 20, 2013 rejected the argument of UPLB that the appellate court's ruling
violated UPLB's constitutional right to academic freedom. The appellate court pointed out that the writ
ofkalikasan originally issued by this Court did not stop research on Bt talong but only the particular
procedure adopted in doing field trials and only at this time when there is yet no law in the form of a
congressional enactment for ensuring its safety and levels of acceptable risks when introduced into the
open environment. Since the writ stops the field trials of Bt talong as a procedure but does not stop Bt
talong research, there is no assault on academic freedom.
The CA then justified its ruling by expounding on the theory that introducing a genetically modified plant
into our ecosystem is an "ecologically imbalancing act." Thus:
We suppose that it is of universal and general knowledge that an ecosystem is a universe of biotic (living)
and non-biotic things interacting as a living community in a particular space and time. In the ecosystem
are found specific and particular biotic and non-biotic entities which depend on each other for the biotic
entities to survive and maintain life. A critical element for biotic entities to maintain life would be that their
populations are in a proper and natural proportion to others so that, in the given limits of available nonbiotic entities in the ecosystem, no one population overwhelms another. In the case of the Philippines, it is
considered as one of the richest countries in terms of biodiversity. It has so many plants and animals. It
also has many kinds of other living things than many countries in the world. We do not fully know how all
these living things or creatures interact among themselves. But, for sure, there is a perfect and sound
balance of our biodiversity as created or brought about by God out of His infinite and absolute
wisdom. In other words, every living creature has been in existence or has come into being for a purpose.
So, we humans are not supposed to tamper with any one element in this swirl of interrelationships among
living things in our ecosystem. Now, introducing a genetically modified plant in our intricate world
of plants by humans certainly appears to be an ecologically imbalancing act. The damage that
it will cause may be irreparable and irreversible.
At this point, it is significant to note that during the hearing conducted by this Court on November 20,
2012 wherein the testimonies of seven experts were given, Dr. Peter J. Davies (Ph.D in Plant [Physiology]),
Dr. Tuskar Chakraborty (Ph.D in Biochemistry and Molecular Biology), Dr. Charito Medina (Ph.D in
Environmental Biology), Dr. Reginaldo Ebora (Ph.D in Entomology), Dr. Flerida Cario (Ph.D in Insecticide
Toxicology), Dr. Ben Malayang (Ph.D in Wildland Resource Science) and Dr. Saturnina Halos (Ph.D in
Genetics) were in unison in admitting that bt talong is an altered plant. x x x
xxxx
Thus, it is evident and clear that bt talong is a technology involving the deliberate alteration of an
otherwise natural state of affairs. It is designed and intended to alter natural feed-feeder relationships of
the eggplant. It is a deliberate genetic reconstruction of the eggplant to alter its natural order which is
meant to eliminate one feeder (the borer) in order to give undue advantage to another feeder (the

humans). The genetic transformation is one designed to make bt talong toxic to its pests (the targeted
organisms). In effect, bt talong kills its targeted organisms. Consequently, the testing or introduction
of bt talong into the Philippines, by its nature and intent, is a grave and present danger to
(and an assault on) the Filipinos' constitutional right to a balanced ecology because, in any book
and by any yardstick, it is an ecologically imbalancing event or phenomenon. It is a willful and deliberate
tampering of a naturally ordained feed-feeder relationship in our environment. It destroys the balance of
our biodiversity. Because it violates the conjunct right of our people to a balanced ecology, the whole
constitutional right of our people (as legally and logically construed) is violated.
Of course, the bt talong's threat to the human health of the Filipinos as of now remains uncertain. This is
because while, on one hand, no Filipinos has ever eaten it yet, and so, there is no factual evidence of it
actually causing acute or chronic harm to any or a number of ostensibly identifiable perms, on the other
hand, there is correspondingly no factual evidence either of it not causing harm to anyone. However, in a
study published on September 20, 2012 in "Food and Chemical Toxicology", a team of scientists led by
Professor Gilles-Eric Seralini from the University of Caen and backed by the France-based Committee of
Independent Research and Information on Genetic Engineering came up with a finding that rats fed with
Roundup-tolerant genetically modified corn for two years developed cancers, tumors and multiple organ
damage. The seven expert witnesses who testified in this Court in the hearing conducted on November 20,
2012 were duly confronted with this finding and they were not able to convincingly rebut it. That is why
we, in deciding this case, applied the precautionary principle in granting the petition filed in the case at
bench.
Prescinding from the foregoing premises, therefore, because one conjunct right in the whole Constitutional
guarantee is factually and is undoubtedly at risk, and the other still factually uncertain, the entire
constitutional right of the Filipino people to a balanced and healthful ecology is at risk. Hence, the issuance
of the writ of kalikasan and the continuing writ of mandamus is justified and
warranted.28 (AdditionalEmphasis supplied.)
Petitioners' Arguments

G.R. No. 209271

ISAAA advances the following arguments in support of its petition:
I

THE COURT OF APPEALS GRAVELY ERRED IN REFUSING TO DISMISS THE PETITION FOR WRIT OF
CONTINUING MANDAMUS AND WRIT OF KALIKASAN CONSIDERING THAT THE SAME IS ALREADY MOOT AND
ACADEMIC.
II

THE COURT OF APPEALS GRAVELY ERRED IN REFUSING TO DISMISS THE PETITION FOR WRIT OF
CONTINUING MANDAMUS AND WRIT OF KALIKASAN CONSIDERING THAT THE SAME RAISES POLITICAL
QUESTIONS.
A. IN SEEKING TO COMPEL THE REGULATORY AGENCIES "TO SUBMIT AN ACCEPTABLE DRAFT OF THE
AMENDMENT OF THE NATIONAL BIO-SAFETY FRAMEWORK OF THE PHILIPPINES, AND DA
ADMINISTRATIVE ORDER NO. 08," AND IN PRAYING THAT THE COURT OF APPEALS "RECOMMEND TO
CONGRESS CURATIVE LEGISLATIONS," RESPONDENTS SEEK TO REVIEW THE WISDOM OF THE
PHILIPPINE REGULATORY SYSTEM FOR GMOS, WHICH THE COURT OF APPEALS IS WITHOUT
JURISDICTION TO DO SO.
B. WORSE, THE COURT OF APPEALS EVEN HELD THAT THERE ARE NO LAWS GOVERNING THE STUDY,
INTRODUCTION AND USE OF GMOS IN THE PHILIPPINES AND COMPLETELY DISREGARDED E.O. NO.
514 AND DA- AO 08-2002.
III

THE COURT OF APPEALS GRAVELY ERRED IN REFUSING TO DISMISS THE PETITION FOR WRIT OF
CONTINUING MANDAMUS AND WRIT OF KALIKASAN CONSIDERING THAT RESPONDENTS FAILED TO
EXHAUST ADMINISTRATIVE REMEDIES.
IV

THE COURT OF APPEALS GRAVELY ERRED IN REFUSING TO DISMISS THE PETITION FOR WRIT OF

CONTINUING MANDAMUS AND WRIT OF KALIKASAN CONSIDERING THAT PRIMARY JURISDICTION OVER THE
SAME LIES WITH THE REGULATORY AGENCIES.
V

THE COURT OF APPEALS EXHIBITED BIAS AND PARTIALITY AND PREJUDGED THE INSTANT CASE WHEN IT
RENDERED THE ASSAILEDDECISION DATED 17 MAY 2013 AND RESOLUTION DATED 20 SEPTEMBER 2013.
VI

THE COURT OF APPEALS GRAVELY ERRED IN GRANTING THE WRIT OF KALIKASAN IN FAVOR OF
RESPONDENTS.
A. THE EVIDENCE ON RECORD SHOWS THAT THE PROJECT PROPONENTS OF THE BT TALONG FIELD
TRIALS COMPLIED WITH ALL ENVIRONMENTAL LAWS, RULES AND REGULATIONS IN ORDER TO
ENSURE THAT THE PEOPLE'S RIGHT TO A BALANCED AND HEALTHFUL ECOLOGY ARE PROTECTED
AND RESPECTED.
B. THE EVIDENCE ON RECORD SHOWS THAT THE BT TALONG FIELD TRIALS DO NOT CAUSE
ENVIRONMENTAL DAMAGE AND DO NOT PREJUDICE THE LIFE, HEALTH AND PROPERTY OF
INHABITANTS OF TWO OR MORE PROVINCES OR CITIES.
C. THE COURT OF APPEALS GRAVELY ERRED IN APPLYING THE PRECAUTIONARY PRINCIPLE IN THIS
CASE DESPITE THE FACT THAT RESPONDENTS FAILED TO PRESENT AN IOTA OF EVIDENCE TO PROVE
THEIR CLAIM.
VII

THE COURT OF APPEALS GRAVELY ERRED IN GRANTING A WRIT OF CONTINUING MANDAMUS AGAINST
PETITIONER ISAAA.
VIII

THE COURT OF APPEALS' DECISION DATED 17 MAY 2013 AND RESOLUTION DATED 20 SEPTEMBER 2013 IS
AN AFFRONT TO ACADEMIC FREEDOM AND SCIENTIFIC PROGRESS.29ChanRoblesVirtualawlibrary
G.R. No. 209276
Petitioners EMB, BPI and FPA, represented by the Office of the Solicitor General (OSG) assails the CA
Decision granting the petition for writ of kalikasanand writ of continuing mandamus despite the failure of
Greenpeace, et al. (respondents) to prove the requisites for their issuance.
Petitioners contend that while respondents presented purported studies that supposedly show signs of
toxicity in genetically engineered eggplant and other crops, these studies are insubstantial as they were
not published in peer-reviewed scientific journals. Respondents thus failed to present evidence to prove
their claim that the Bt talong field trials violated environmental laws and rules.
As to the application of the precautionary principle, petitioners asserted that its application in this case is
misplaced. The paper by Prof. Seralini which was relied upon by the CA, was not formally offered in
evidence. In volunteering the said article to the parties, petitioners lament that the CA manifested its bias
towards respondents' position and did not even consider the testimony of Dr. Davies who stated that
"Seralini's work has been refuted by International committees of scientists" 30 as shown by published
articles critical of Seralini's work.
Petitioners aver that there was no damage to human health since no Bt talong will be ingested by any
human being during the field trial stage. Besides, if the results of said testing are adverse, petitioners will
not allow the release of Bt talong to the environment, in line with the guidelines set by EO 514. The CA
thus misappreciated the regulatory process as approval for field testing does not automatically mean
approval for propagation of the same product. And even assuming that the field trials may indeed cause
adverse environmental or health effects, the requirement of unlawful act or omission on the part of
petitioners or any of the proponents, was still absent. Respondents clearly failed to prove there was any
unlawful deviation from the provisions of DAO 08-2002. The BPI's factual finding on the basis of risk
assessment on the Bt talong project should thus be accorded respect, if not finality by the courts.
Petitioners likewise fault the CA in giving such ambiguous and general directive for them to protect,
preserve, rehabilitate and restore the environment, lacking in specifics which only indicates that there was
really nothing to preserve, rehabilitate or restore as there was nothing damaged or adversely affected in

the first place. As to the supposed inadequacy and ineffectiveness of existing regulations, these are all
political questions and policy issues best left to the discretion of the policy-makers, the Legislative and
Executive branches of government. Petitioners add that the CA treads on judicial legislation when it
recommended the re-examination of country's existing laws and regulations governing studies and
research on GMOs.
GR. No. 209301
Petitioner UPLBFI argues that respondents failed to adduce the quantum of evidence necessary to prove
actual or imminent injury to them or the environment as to render the controversy ripe for judicial
determination. It points out that nowhere in the testimonies during the "hot-tub" presentation of expert
witnesses did the witnesses for respondents claim actual or imminent injury to them or to the environment
as a result of the Bt talong field tests, as they spoke only of injury in the speculative, imagined kind
without any factual basis. Further, the petition for writ of kalikasan has been mooted by the termination of
the field trials as of August 10, 2012.
Finding the CA decision as a judgment not based on fact, UPLBFI maintains that by reason of the nature,
character, scale, duration, design, processes undertaken, risk assessments and strategies employed,
results heretofore recorded, scientific literature, the safeguards and other precautionary measures
undertaken and applied, the Bt talong field tests did not or could not have violated the right of respondents
to a balanced and healthful ecology. The appellate court apparently misapprehended the nature, character,
design of the field trials as one for "consumption" rather than for "field testing" as defined in DAO 08-2002,
the sole purpose of which is for the "efficacy" of the eggplant variety's resistance to the FSB.
Against the respondents' bare allegations, UPLBFI submits the following "specific facts borne by competent
evidence on record" (admitted exhibits)31:

118. Since the technology's inception 50 years ago, studies have shown that genetically modified crops,
including Bt talong, significantly reduce the use of pesticides by farmers in growing eggplants,
lessening pesticide poisoning to humans.

119. Pesticide use globally has decreased in the last [14-15] years owing to the use of insect-resistant
genetically modified crops. Moreover, that insect-resistant genetically modified crops significantly
reduce the use of pesticides in growing plants thus lessening pesticide poisoning in humans,
reducing pesticide load in the environment and encouraging more biodiversity in farms.

120. Global warming is likewise reduced as more crops can be grown.

121. Transgenic Bacillus thuringensis (Bt) cotton has had a major impact on the Australian cotton
industry by largely controlling Lepidopteran pests. To date, it had no significant impact on the
invertebrate community studied.

122. Feeding on CrylAcc contaminated non-target herbivores does not harm predatory heteropterans
and, therefore, cultivation of Btcotton may provide an opportunity for conservation of these
predators in cotton ecosystems by reducing insecticide use.

123. The Bt protein in Bt corn only affects target insects and that Bt corn pollens do not negatively
affect monarch butterflies.

124. The field trials will not cause "contamination" as feared by the petitioners because flight distance
of the pollinators is a deterrent to cross pollination. Studies reveal that there can be no cross
pollination more than a fifty (50) meter distance.

xxx
x

135. There is a 50 year history of safe use and consumption of agricultural products sprayed with
commercial Bt microbial pesticides and a 14 year history of safe consumption of food and feed
derived from Bt crops.

xxx
x

140. In separate reviews by the European Food Safety Agency (EFSA) and the Food Standards Australia
and New Zealand (FSANZ), the "work" of one Prof. Seralini relied upon by [respondents] was
dismissed as "scientifically flawed", thus providing no plausible basis to the proposition that Bt
talong is dangerous to public health.

141. In a learned treatise by James Clive entitled "Global Status of Commercialized Biotech/GM Crops:
2011," the Philippines was cited to be the first country in the ASEAN region to implement a
regulatory system for transgenic crops (which includes DAO 08-[2]002). Accordingly, the said
regulatory system has also served as a model for other countries in the region and other
developing countries outside of Asia.

On the precautionary principle, UPLBFI contends that the CA misapplied it in this case. The testimonial and
documentary evidence of respondents, taken together, do not amount to "scientifically plausible" evidence

of threats of serious and irreversible damage to the environment. In fact, since BPI started regulating GM
crops in 2002, they have monitored 171 field trials all over the Philippines and said agency has not
observed any adverse environmental effect caused by said field trials. Plainly, respondents failed to show
proof of "specific facts" of environmental damage of the magnitude contemplated under the Rules of
Procedure for Environmental Cases as to warrant sanctions over the Bt talong field trials.
Lastly, UPLBFI avers that the Bt talong field trial was an exercise of the constitutional liberty of scientists
and other academicians of UP, of which they have been deprived without due process of law. Stressing that
a possibility is not a fact, UPLBFI deplores the CA decision's pronouncement of their guilt despite the
preponderance of evidence on the environmental safety of the field trials, as evident from its declaration
that "the over-all safety guarantee of Bt talongremains to be still unknown." It thus asks if in the
meantime, petitioners must bear the judicial stigma of being cast as violators of the right of the people to
a balanced and healthful ecology for an injury or damage unsubstantiated by evidence of scientific
plausibility.
G.R. No. 209430
Petitioner UP reiterates UPLBFI's argument that the Bt talong field testing was conducted in the exercise of
UPLB's academic freedom, which is aconstitutional right. In this case, there is nothing based on evidence
on record or overwhelming public welfare concern, such as the right of the people to a balanced and
healthful ecology, which would warrant restraint on UPLB's exercise of academic freedom. Considering that
UPLB complied with all laws, rules and regulations regarding the application and conduct of field testing of
GM eggplant, and was performing such field tests within the prescribed limits of DAO 08-2002, and there
being no harm to the environment or prejudice that will be caused to the life, health or property of
inhabitants in two or more cities or provinces, to restrain it from performing the said field testing is
unjustified.
Petitioner likewise objects to the CA's application of the precautionary principle in this case, in violation of
the standards set by the Rules of Procedure for Environmental Cases. It points out that the Bt eggplants
are not yet intended to be introduced into the Philippine ecosystem nor to the local market for human
consumption.
Cited were the testimonies of two expert witnesses presented before the CA: Dr. Navasero who is an
entomologist and expert in integrated pest management and insect taxonomy, and Dr. Davies, a member
of the faculty of the Department of Plant Biology and Horticulture at Cornell University for 43 years and
served as a senior science advisor in agricultural technology to the United States Department of State.
Both had testified that based on generally accepted and scientific methodology, the field trial of Bt crops
do not cause damage to the environment or human health.
Petitioner assails the CA in relying instead on the conjectural statements of Dr. Malayang. It asserts that
the CA could not support its Decision and Resolution on the pure conjectures and imagination of one
witness. Basic is the rule that a decision must be supported by evidence on record.
Respondents' Consolidated Comment
Respondents aver that Bt talong became the subject of public protest in our country precisely because of
the serious safety concerns on the impact of Bt talong toxin on human and animal health and the
environment through field trial contamination. They point out that the inherent and potential risks and
adverse effects of GM crops are recognized in the Cartagena Protocol and our biosafety regulations (EO
514 and DAO 08-2002). Contamination may occur through pollination, ingestion by insects and other
animals, water and soil run off, human error, mechanical accident and even by stealing was inevitable in
growing Bt talong in an open environment for field trial. Such contamination may manifest even after
many years and in places very far away from the trial sites.
Contrary to petitioners' claim that they did not violate any law or regulation, or unlawful omission,
respondents assert that, in the face of scientific uncertainties on the safety and effects of Bt talong,
petitioners omitted their crucial duties to conduct environmental impact assessment (EIA); evaluate health
impacts; get the free, prior and informed consent of the people in the host communities; and provide
remedial and liability processes in the approval of the biosafety permit and conduct of the field trials in its
five sites located in five provinces. These omissions have put the people and the environment at serious
and irreversible risks.
Respondents cite the numerous studies contained in "Adverse Impacts of Transgenic Crops/Foods: A
Compilation of Scientific References with Abstracts" printed by Coalition for a GMO-Free India; a study
on Bt corn in the Philippines, "Socio-economic Impacts of Genetically Modified Corn in the Philippines"
published by MASIPAG in 2013; and the published report of the investigation conducted by Greenpeace,
"White Corn in the Philippines: Contaminated with Genetically Modified Corn Varieties" which revealed
positive results for samples purchased from different stores in Sultan Kudarat, Mindanao, indicating that
they were contaminated with GM corn varieties, specifically the herbicide tolerant and Bt insect resistant
genes from Monsanto, the world's largest biotech company based in the US.
To demonstrate the health hazards posed by Bt crops, respondents cite the following sources: the studies
of Drs. L. Moreno-Fierros, N. Garcia, R. Gutierrez, R. Lopez-Revilla, and RI Vazquez-Padron, all from the
Universidad Nacional Autonoma de Mexico; the conclusion made by Prof. Eric-Gilles Seralini of the

University of Caen, France, who is also the president of the Scientific Council of the Committee for
Independent Research and Information on Genetic Engineering (CRIIGEN), in his review, commissioned by
Greenpeace, of Mahyco's data submitted in support of the application to grow and market Bteggplant in
India; and the medical interpretations of Prof. Seralini's findings by Filipino doctors Dr. Romeo Quijano of
the University of the Philippines-Philippine General Hospital and Dr. Wency Kiat, Jr. of St. Luke's Medical
Center (Joint Affidavit).
According to respondents, the above findings and interpretations on serious health risks are strengthened
by the findings of a review of the safety claims in the MAHYCO Dossier authored by Prof. David A. Andow of
the University of Minnesota, an expert in environmental assessment in crop science. The review was made
upon the request in 2010 of His Honorable Shri Jairam Ramesh of the Ministry of Environment and Forests
of India, where MAHYCO is based. MAHYCO is the corporate creator and patent owner of the Bt gene
inserted in Bt talong.
The conclusions of health hazards from the above studies were summarized 32 by respondents, as follows:

Studies/interpretation by

Conclusion/interpretation

Drs. L. Moreno-Fierros, N. Garcia, R.

Gutierrez, R.

For Bt modified crops (like Bt talong), there is concern over its

potential

Lopez-Revilla, and RI Vazquez-Padron

allergenicity. CrylAcc (the gene inserted in Bt talong) protoxin

is a potent immunogen (triggers immune response); the
protoxin is immunogenic by both the intraperitoneal (injected)
and intragastric (ingested) route; the immune response to the
protoxin is both systemic and mucosal; and CrylAcc protoxin
binds to surface proteins in the mouse small intestine. These
suggest thatextreme caution is required in the use
of CrylAcc in food crops.

Prof. Eric-Gilles Seralini

His key findings showed statistical significant differences

between group of animals fed GM and non-GM eggplant that
raise food safety concerns and warrant further
investigation.

Dr. Romeo Quijano & Dr. Wency Kiat, Jr.

Interpreting Prof. Seralini's findings, the altered condition of

ratssymptomatically indicate hazards for human health.

Prof. David A. Andow

The MAHYCO dossier is inadequate to support the needed

environmental risk assessment; MAHYCO's food safety
assessment does not comply with international standards; and
that MAHYCO relied on dubious scientific assumptions and
disregarded real environmental threats.

As to environmental effects, respondents said these include the potential for living modified organisms,
such as Bt talong tested in the field or released into the environment, to contaminate non-GM traditional
varieties and other wild eggplant relatives and turn them into novel pests, outcompete and replace their
wild relatives, increase dependence on pesticides, or spread their introduced genes to weedy relatives,
potentially creating superweeds, and kill beneficial insects.
Respondents then gave the following tabulated summary33 of field trial contamination cases drawn from
various news reports and some scientific literature submitted to the court:

What happened

During 2006 and 2007, traces of

Impact

In July 2011, Bayer eventually agreed

How did it occur

Field trials were conducted

three varieties of unapproved

genetically modified rice owned by
Bayer Crop Science were found in
US rice exports in over 30 countries
worldwide.

to a $750m US dollar settlement

resolving claims with about 11,000 US
farmers for market losses and cleanup costs.
The total costs to the rice industry are
likely to have been over $1bn
worldwide.

between the mid-1990s

and early 2000s. The US
Department of Agriculture
(USDA) reported these field
trials were the likely
sources of the
contamination between the
modified rice and
conventional varieties.
However, it was unable to
conclude [if it] was caused
by gene flow (cross
pollination) or mechanical
mixing.

In 2009, unauthorised GElinseed

Canada lost exports to its main
(also known as 'flax') produced by a European market worth hundreds of
public research institution was
millions of dollars and non-GElinseed
discovered in food in several EU
farmers have faced huge costs and
countries, having been imported
market losses.
from Canada.

In the late 1980s a public

research institution, the
Crop Development Centre
in Saskatoon, Saskatchewan, developed a
GElinseed variety FP96
believed to be the origin of
the contamination.

During 2004, the Thai government

found that papaya samples from 85
farms were genetically modified.
The contamination continued into
2006 and it is likely that the GE
contamination reached the food
chain.

Exports of papaya to Europe have

been hit because of fears that
contamination could have spread. The
Thai government said it was taking
action to destroy the contaminated
trees.

GEpapaya is not grown

commercially in Thailand,
so it was clear that the
contamination originated
from the government
station experimentally
breeding GE papaya trees.
Tests that showed that one
third of papaya orchards
tested in the eastern
province of Rayong and the
north-eastern provinces of
Mahasarakham,
Chaiyaphum and
Kalasinhad GEcontaminated papaya
seeds in July 2005. The
owners said that a research
station gave them the
seeds.

In the US in 2002, seeds from a

GEmaize pharma-crop containing a
pig vaccine grew independently
among normal soybean crops.

Prodigene, the company responsible,

was fined $3m for tainting half a
million bushels of soya bean with a
trial vaccine used to prevent stomach
upsets in piglets. Prodigene agreed to
pay a fine of $250,000 and to repay
the government for the cost of
incinerating the soya bean that had
been contaminated with genetically
altered corn.

Seeds from the GEmaize

crop sprouted voluntarily in
the following season.

In 2005, Greenpeace discovered

that GE rice seeds had been
illegally sold in Hubei, China. Then,
in 2006, GE rice event Bt63 was
found in baby food sold in Beijing,
Guangzhou and Hong Kong. In late
2006, GE rice Bt63 was found to be
contaminating exports in Austria,

The European Commission adopted

emergency measures (on 15 August
2008) to require compulsory
certification for the imports of Chinese
rice products that could contain the
unauthorised GE rice Bt63.

The source of the

contamination appears to
have been the result of
illegal planting of GEseeds.
Seed companies in China
found to have sold GErice
hybrid seed to farmers
operated directly under the

The Chinese government took several

France, the UK and Germany. In

2007 it was again found in EU
imports to Cyprus, Germany,
Greece, Italy and Sweden.

measures to try to stop the

contamination, which included
punishing seed companies,
confiscating GEseed, destroying
GErice grown in the field and
tightening control over the food chain.

university developing GM
rice. It has been reported
that the key scientist sat on
the board of one GEseed
company.

In 2005, the European Commission

announced that illegal Bt10
GEmaize produced by GEseed
company Syngenta had entered the
European food chain. The GEmaize
Bt10 contains a marker gene that
codes for the widely-used antibiotic
ampicillin, while the Bt11 does not.
According to the international
Codex Alimentarius Guideline for
Conduct of Food Safety Assessment
of Foods Derived from
Recombinant-DNA:Plants: 'Antibiotic
resistance genes used in food
production that encode resistance
to clinically used antibiotics should
not be present in foods' because it
increases the risk of antibiotic
resistance in the population.

The European Commission blocked US

grain import unless they could be
guaranteed free of Bt10. The USDA
fined Syngenta $375,000. There are
no figures for the wider costs.

The contamination arose

because Syngenta's quality
control procedures did not
differentiate between Bt10
and its sister commercial
line, Bt11. As a result, the
experimental and
substantially different Bt10
line was mistakenly used in
breeding. The error was
detected four years later
when one of the seed
companies developing Bt11
varieties adopted more
sophisticated analytical
techniques.

Refuting the claim of petitioners that contamination is nil or minimal because the scale of Bt talong field
trial is isolated, restricted and that "each experiment per site per season consists of a maximum net area
planted to Bt eggplant of between 480 sq. meters to 1,080 sq. meters,"34 respondents emphasize that as
shown by the above, contamination knows no size and boundaries in an open environment.
With regard to the required geographical coverage of environmental damage for the issuance of writ
of kalikasan, respondents assert that while the Bt talong field trials were conducted in only five provinces,
the environmental damage prejudicial to health extends beyond the health of the present generation of
inhabitants in those provinces.
On petitioners' insistence in demanding that those who allege injury must prove injury, respondents said
that biosafety evidence could not be readily contained in a corpus delicti to be presented in court. Indeed,
the inherent and potential risks and adverse effects brought by GMOs are not like dead bodies or wounds
that are immediately and physically identifiable to an eyewitness and which are resulting from a common
crime. Precisely, this is why the Cartagena Protocol's foundation is on the precautionary principle and
development of sound science and its links, to social and human rights law through its elements of public
awareness, public participation and public right to know. This is also why the case was brought under
the Rules of Procedure for Environmental Cases and not under ordinary or other rules, on the grounds of
violation of the rights of the Filipino people to health, to a balanced and healthful ecology, to information
on matters of national concern, and to participation. The said Rules specifically provides that the
appreciation of evidence in a case like this must be guided by the precautionary principle.
As to the non-exhaustion of administrative remedies being raised by petitioners as ground to dismiss the
present petition, respondents said that nowhere in the 22 sections of DAO 08-2002 that one can find a
remedy to appeal the decision of the DA issuing the field testing permit. What is only provided for is a
mechanism for applicants of a permit, not stakeholders like farmers, traders and consumers to appeal a
decision by the BPI-DA in case of denial of their application for field testing. Moreover, DAO 08-2002 is
silent on appeal after the issuance of the biosafety permit.
Finally, on the propriety of the writ of continuing mandamus, respondents argue that EO 514 explicitly
states that the application of biosafety regulations shall be made in accordance with existing laws and the
guidelines therein provided. Hence, aside from risk assessment requirement of the biosafety regulations,
pursuant to the PEISS law and Sections 12 and 13 of the Philippine Fisheries Code of 1998, an
environmental impact statement (EIS) is required and an environmental compliance certificate (ECC) is
necessary before such Bt crop field trials can be conducted.
Petitioners' Replies

G.R. No. 209271

ISAAA contends that the Precautionary Principle and the Rules of Procedure for Environmental Cases do not
empower courts to adjudicate a controversy that is moot and academic. It points out that respondents
failed to satisfy all the requirements of the exception to the rule on actual controversies. The Biosafety
Permit is valid for only two years, while the purported stages in the commercialization, propagation and
registration of Bt talong still cannot confer jurisdiction on the CA to decide a moot and academic case.
As to the propriety of the writ of continuing mandamus, ISAAA maintains that public petitioners do not
have "mandatory" and "ministerial" duty to re-examine and reform the biosafety regulatory system, and to
propose curative legislation. The law (EO 514) cited by respondents does not impose such duty on public
petitioners. As for the Cartagena Protocol, it laid down a procedure for the evaluation of the Protocol itself,
not of the Philippine biosafety regulatory system. ISAAA stresses that the CA is without jurisdiction to
review the soundness and wisdom of existing laws, policy and regulations. Indeed, the questions posed by
the respondents are political questions, which must be resolved by the executive and legislative
departments in deference to separation of powers.
On the availability of administrative remedies, ISAAA asserts that respondents are mistaken in saying that
these are limited to appeals. The concerned public may invoke Section 8 (G) of DAO 08-2002 which grants
them the right to submit their written comments on the BPI regarding the field testing permits, or Section 8
(P) for the revocation and cancellation of a field testing permit. Respondents' failure to resort to the
internal mechanisms provided in DAO 08-2002 violates the rule on exhaustion of administrative remedies,
which warrants the dismissal of respondents' petition.
ISAAA points out that under Section 7 of DAO 08-2002, the BPI is the approving authority for field testing
permits, while under Title IV, Chapter 4, Section 19 of the Administrative Code of 1987, the DA through the
BPI, is responsible for the production of improved planting materials and protection of agricultural crops
from pests and diseases. In bypassing the administrative remedies available, respondents not only failed
to exhaust a less costly and speedier remedy, it also deprived the parties of an opportunity to be heard by
the BPI which has primary jurisdiction and knowledgeable on the issues they sought to raise.
Rejecting the scientific data presented by the respondents, petitioners found Annex "A" of the Consolidated
Comment as irrelevant because it was not formally offered in evidence and are hearsay. Majority of those
records contain incomplete information and none of them pertain to the Bt talong. Respondents likewise
presented two misleading scientific studies which have already been discredited: the 2013 study by B.P.
Mezzomo, et al. and the study by Prof. Seralini in 2012. Petitioner notes that both articles have been
withdrawn from publication.
ISAAA further describes Annex "A" as a mere compilation of records of flawed studies with only 126 usable
records out of the 338 records. In contrast, petitioner cites the work of Nicolia, A., A. Manzo, F. Veronesi,
and D. Rosellini, entitled "An overview of the last 10 years of genetically engineered crop safety research."
The authors evaluated 1,783 scientific records of GE crop safety research papers, reviews, relevant
opinions and scientific reports from 2002-2012. Their findings concluded that "the scientific research
conducted so far has not detected any significant hazards directly connected with the use of GE crops." In
the article "Impacts of GM crops on biodiversity," in which scientific findings concluded that "[o]verall, x x x
currently commercialized GM crops have reduced the impacts of agriculture on biodiversity, through
enhanced adoption of conservation tillage practices, reduction of insecticide use and use of more
environmentally benign herbicides and increasing yields to alleviate pressure to convert additional land
into agricultural use."
Debunking the supposed inherent risks and potential dangers of GMOs, petitioner cites EUR 24473-A
decade of EU-funded GMO research (2001-2010), concluded from more than 130 research projects,
covering a period of 25 years of research, and involving more than 500 independent research groups, that
"biotechnology, and in particular GMOs, are not per se more risky than e.g. conventional plant breeding
technologies." Another article cited is "Assessment of the health impact of GM plant diets in long-term and
multigenerational animal feeding trials: A literature review" which states that scientific findings show that
GM crops do not suggest any health hazard, and are nutritionally equivalent to their non-GM counterparts
and can be safely used in food and feed.
Addressing the studies relied upon by respondents on the alleged adverse environmental effects of GM
crops, petitioner cites the article "Ecological Impacts of Genetically Modified Crops: Ten Years of Field
Research and Commercial Cultivation" which concluded that "[T]he data available so far provide no
scientific evidence that the cultivation of the presently commercialized GM crops has caused
environmental harm." A related article, "A Meta-Analysis of Effects of Bt Cotton and Maize on Non-target
Invertebrates" states that scientific findings show that non-target insects are more abundant in GM crop
fields like Bt cotton and Bt maize fields than in non-GM crops that are sprayed with insecticides.
The two tables/summaries of studies submitted by respondents are likewise rejected by ISAAA, which
presented the following comments and criticisms on each of the paper/article cited, thus:
With respect to the study made by L. Moreno-Fierros, et al., the same should be rejected considering that
this was not formally offered as evidence by respondents. Hence, the same may not be considered by the

Honorable Court. (Section 34, Rule 132 of the Rules of Court;Heirs of Pedro Pasag v. Spouses Parocha,
supra)
Further, the study is irrelevant and immaterial. The CrylAcc protein used in the study was from
engineered E. coli and may have been contaminated by endotoxin. The CrylAcc used in the study
was not from Bt talong. Hence, respondents' attempt to extrapolate the interpretation and conclusion of
this study to Bt talong is grossly erroneous and calculated to mislead and deceive the Honorable Court.
Moreover, in a review by Bruce D. Hammond and Michael S. Koch of the said study by L. Moreno-Fierros, et
al., which was published in an article entitled A Review of the Food Safety of Bt Crops, the authors reported
that Adel-Patient, et al. tried and failed to reproduce the results obtained by the study made by L. MorenoFierros, et al. The reason is because of endotoxin contamination in the preparation of theCrylAc protein.
Further, when purified Cry protein was injected to mice through intra-gastric administration, there was no
impact on the immune response of the mice.
In addition, the biological relevance of the study made by L. Moreno-Fierros, et al. to assessing potential
health risks from human consumption of foods derived from Bt crops can be questioned because the doses
tested in mice is irrelevant to human dietary exposure,i.e., the doses given were "far in excess of potential
human intakes".
With respect to the interpretation made by Prof. Eric-Gilles Seralini, the same is not entitled to any weight
and consideration because his sworn statement was not admitted in evidence by the Court of Appeals.
Further, Seralini's findings are seriously flawed. Food safety experts explained the differences observed by
Seralini's statistical analysis as examples of random biological variation that occurs when many
measurements are made on test animals, and which have no biological significance. Hence, there are no
food safety concerns. Further, petitioner ISAAA presented in evidence the findings of regulatory bodies,
particularly the EFSA and the FSANZ, to controvert Seralini's findings. The EFSA and the FSANZ rejected
Seralini's findings because the same were based on questionable statistical procedure employed in
maize in 2007.
In addition, it must be pointed out that the Indian regulatory authority, GEAC, has not revised its earlier
decision approving the safety of Bteggplant notwithstanding the findings of Seralini's assessment. In
effect, Seralini's findings and interpretation were rejected by the Indian regulatory agency.
With respect to the interpretation made by Drs. Romeo Quijano and Wency Kiat, the same is not entitled to
any weight and consideration because the Court of Appeals did not admit their sworn statement. Further,
Drs. Romeo Quijano and Wency Kiat sought to interpret a seriously flawed study, making their sworn
statements equally flawed.
In an attempt to mislead the Honorable Court, respondents tried to pass off the review of Prof. David A.
Andow as the work of the National Academy of Sciences of the USA. Such claim is grossly misleading. In
truth, as Prof. David A. Andow indicated in the preface, the report was produced upon the request of Aruna
Rodriguez, a known anti-GM campaigner.
Further, Prof. David A. Andow's review did not point to any negative impact to the environment of
Mahyco's Bt brinjal (Indian name for Bt talong) during the entire period of conduct of field trials all over the
country. He concluded, however, that the dossier is inadequate for ERA. This is perplexing considering this
is the same gene that has been used in Bt cotton since 1996. Scores of environmental and food safety risk
assessment studies have been conducted and there is wealth of information and experience on its safety.
Various meta-analyses indicate that delaying the use of this already effective Bt brinjal for managing this
devastating pest only ensures the continued use of frequent insecticide sprays with proven harm to human
and animal health and the environment and loss of potential income of resource-poor small farmers.
Notwithstanding the conclusions of Prof. David A. Andow, to date, it is worth repeating that the Indian
regulatory body, GEAC, has not revised its earlier decision approving the safety of Bt eggplant based on
the recommendation of two expert committees which found the Mahyco regulatory dossier compliant to
the ERA stipulated by the Indian regulatory body. In effect, like Seralini, Andow's findings and interpretation
were also rejected by the Indian regulatory agency.35ChanRoblesVirtualawlibrary
Petitioner reiterates that the PEIS law does not apply to field testing of Bt talong and the rigid requirements
under Section 8 of DAO 08-2002 already takes into consideration any and all significant risks not only to
the environment but also to human health. The requirements under Sections 26 and 27 of theLocal
Government Code are also inapplicable because the field testing is not among the six environmentally
sensitive activities mentioned therein; the public consultations and prior local government unit (LGU)
approval, were nevertheless complied with. Moreover, the field testing is an exercise of academic freedom
protected by the Constitution, the possibility of Bt talong's commercialization in the future is but incidental
to, and fruit of the experiment.
As to the "commissioned studies" on Bt corn in the Philippines, petitioner asserts that these are
inadmissible, hearsay and unreliable. These were not formally offered in evidence; self-serving as it was
conducted by respondents Greenpeace and MASIPAG themselves; the persons who prepared the same
were not presented in court to identify and testify on its findings; and the methods used in the

investigation and research were not scientific. Said studies failed to establish any correlation
between Bt corn and the purported environmental and health problems.
G.R. No. 209276
EMB, BPI and FPA joined in objecting to Annex "A" of respondents' consolidated comment, for the same
reasons given by ISAAA. They noted that the affidavit of Prof. Seralini, and the joint affidavit of Dr. Kiat and
Dr. Quijano were denied admission by the CA. Given the failure of the respondents to present scientific
evidence to prove the claim of environmental and health damages, respondents are not entitled to the writ
of kalikasan.
Public petitioners reiterate that in issuing the Biosafety Permits to UPLB, they made sure that the latter
complied with all the requirements under DAO 08-2002, including the conduct of risk assessment. The
applications for field testing of Bt talong thus underwent the following procedures:
Having completed the contained experiment on the Bt talong, UPLB filed with BPI several applications for
issuance of Biosafety Permits to conduct multi-locational field testing of Bt talong. Even before the
proponent submitted its application, petitioner BPI conducted a consultative meeting with the proponent to
enlighten the latter about the requirements set out by DA AO No. 8.
Thereafter, petitioner BPI evaluated UPLB's applications vis-a-vis the requirements of Section 8 of DA AO
No. 8 and found them to be sufficient in form and substance, to wit:
First. The applications were in the proper format and contained all of the relevant information as required
in Section 8 (A) (1) of DA AO No. 08.
Second. The applications were accompanied by a (i) Certification from the NCBP that the regulated article
has undergone satisfactory testing under contained conditions in the Philippines, (ii) technical dossier
consisting of scientific literature and other scientific materials relied upon by the applicant showing that Bt
talong will not pose any significant risks to human health and the environment, and (iii) copy of the
proposed PIS for Field Testing as prescribed by Section 8 (A) (2) of DA AO No. 08; and
Third. The applications contained the Endorsement of proposal for field testing, duly approved by the
majority of all the members of the respective Institutional Biosafety Committees (IBC), including at least
one community representative, as required by Section 8 (E) of DA AO No. 08.
a. Under Sections 1 (L) and 8 (D) of DA AO No. 08, the IBC is responsible for the initial evaluation of the risk
assessment and risk management strategies of the applicant for field testing using the NCBP
guidelines. The IBC shall determine if the data obtained under contained conditions provide
sufficient basis to authorize the field testing of the regulated article. In making the determination,
the IBC shall ensure that field testing does not pose any significant risks to human health and
the environment. The IBC may, in its discretion, require the proponent to perform additional experiments
under contained conditions before acting on the field testing proposal. The IBC shall either endorse the
field testing proposal to the BPI or reject it for failing the scientific risk assessment.
b. Relatedly, UPLB had previously complied with Section 1 (L) of DA AO No. 08 which requires an applicant
for field testing to establish an IBC in preparation for the field testing of a regulated article and whose
membership has been approved by the BPI. Section 1 (L) of DA AO No. 08, requires that the IBC shall be
composed of at least five (5) members, three (3) of whom shall be designated as "scientist-members" who
shall possess scientific and technological knowledge and expertise sufficient to enable them to evaluate
and monitor properly any work of the applicant relating to the field testing of a regulated article, and the
other members are designated as "community representatives" who are in a position to represent the
interest of the communities where the field testing is to be conducted.
Before approving the intended multi-locations [field] trials, petitioner BPI, pursuant to Section 8 (F) of DA
AO No. 08, forwarded the complete documents to three (3) independent Scientific Technical Review Panel
(STRP) members. Pending receipt of the risk assessment reports of the three STRP members, petitioner
BPI conducted its own risk assessment.
Thereafter, on separate occasions, petitioner BPI received the final risk assessment reports of the three
STRP members recommending the grant of Biosafety Permits to UPLB after a thorough risk assessment and
evaluation of UPLB's application for field trial of Bt talong.
Meanwhile, petitioner BPI received from UPLB proofs of posting of the PISs for Field Testing in each
concerned barangays and city/municipal halls of the localities having jurisdiction over its proposed field
trial sites.
In addition to the posting of the PISs for Field Testing, petitioner BPI conducted consultative meetings and
public seminars in order to provide public information and in order to give an opportunity to the public to
raise their questions and/or concerns regarding the Bt talongfield trials.36ChanRoblesVirtualawlibrary
Petitioners maintain that Sections 26 and 27 of the Local Government Code are inapplicable to the Bt
talong field testing considering that its subject matter is not mass production for human consumption. The

project entails only the planting of Bt eggplants and cultivation in a controlled environment; indeed, the
conduct of a field trial is not a guarantee that the Bt talong will be commercialized and allowed for
cultivation in the Philippines.
On the non-exhaustion of administrative remedies by the respondents, petitioners note that during the
period of public consultation under DAO 08-2002, it is BPI which processes written comments on the
application for field testing of a regulated article, and has the authority to approve or disapprove the
application. Also, under Section 8 (P), BPI may revoke a biosafety permit issued on the ground of, among
others, receipt of new information that the field testing poses significant risks to human health and the
environment. Petitioners assert they were never remiss in the performance of their mandated functions, as
shown by their immediate action with respect to the defective certification of posting of PIS in Kabacan,
North Cotabato. Upon receiving the letter-complaint on January 24, 2012, BPI readily ordered their reposting. The same incident occurred in Davao City, where BPI refused to lift the suspension of biosafety
permits until "rectification of the conditions for public consultation is carried out."
To underscore respondents' blatant disregard of the administrative process, petitioners refer to
documented instances when respondents took the law in their own hands. Greenpeace barged into one of
the Bt talong field trial sites at Bgy. Paciano Rizal, Bay, Laguna, forcibly entered the entrance gate through
the use of a bolt cutter, and then proceeded to uproot the experimental crops without permission from BPI
or the project proponents. Petitioners submit that the non-observance of the doctrine of exhaustion of
administrative remedies results in lack of cause of action, one of the grounds under the Rules of
Court justifying the dismissal of a complaint.
Petitions-in-Intervention

Crop Life Philippines, Inc. (Crop Life)

Crop Life is an association of companies which belongs to a global (Crop Life International) as well as
regional (Crop Life Asia) networks of member-companies representing the plant science industry. It aims to
"help improve the productivity of Filipino farmers and contribute to Philippine food security in a sustainable
way." It supports "innovation, research and development in agriculture through the use of biology,
chemistry, biotechnology, plant breeding, other techniques and disciplines."
On procedural grounds, Crop Life assails the CA in rendering judgment in violation of petitioners' right to
due process because it was prevented from cross-examining the respondents' expert witnesses and
conducting re-direct examination of petitioners' own witnesses, and being an evidently partial and
prejudiced court. It said the petition for writ of kalikasan should have been dismissed outright as it
effectively asks the Court to engage in "judicial legislation" to "cure" what respondents feel is an
inadequate regulatory framework for field testing of GMOs in the Philippines. Respondents also violated the
doctrine of exhaustion of administrative remedies, and their petition is barred by estoppel and laches.
Crop Life concurs with the petitioners in arguing that respondents failed to specifically allege and prove the
particular environmental damage resulting from the Bt talong field testing. It cites the scientific evidence
on record and the internationally accepted scientific standards on GMOs and GMO field testing, and
considering the experience of various countries engaged in testing GMOs, telling us that GMO field testing
will not damage the environment nor harm human health and more likely bring about beneficial
improvements.
Crop Life likewise assails the application of the Precautionary Principle by the CA which erroneously
equated field testing of Bt talong with Bt talong itself; failed to recognize that in this case, there was no
particular environmental damage identified, much less proven; relied upon the article of Prof. Seralini that
was retracted by the scientific journal which published it; there is no scientific uncertainty on the adverse
effects of GMOs to environment and human health; and did not consider respondents' failure to prove the
insufficiency of the regulatory framework under DAO 08-2002.
On policy grounds, Crop Life argues that requiring all organisms/plants to be considered absolutely safe
before any field testing may be allowed, would result in permanently placing the Philippines in the shadows
of more developed nations (whose economies rest on emerging markets importing products from them). It
points out that the testing of Bt talong specifically addresses defined problems such as the need to curb
the misuse of chemical pesticides.
Biotechnology Coalition of the Philippines (BCP)
BCP is a non-stock, non-profit membership association, a broad-based multi-sectoral coalition of advocates
of modern biotechnology in the Philippines.
Reversal of the CA ruling is sought on the following grounds:
I.

THE COURT OF APPEALS ERRED IN TAKING COGNIZANCE OF THE KALIKASAN PETITION IN THE ABSENCE OF
ANY JUSTICIABLE CONTROVERSY.
II.

EXISTING LEGISLATION AND ADMINISTRATIVE REGULATIONS ALREADY INCORPORATE THE PRECAUTIONARY

PRINCIPLE AS A GUIDING PRINCIPLE IN RELATION TO GMOs.
III.

THE CA DECISION AND THE CA RESOLUTION IMPROPERLY APPLIED THE PRECAUTIONARY PRINCIPLE.
IV.

THE COURT OF APPEALS' ERRONEOUS APPLICATION OF THE PRECAUTIONARY PRINCIPLE, IF SUSTAINED,

WOULD PRODUCE A DANGEROUS PRECEDENT THAT IS ANTI-PROGRESS, ANTI-TECHNOLOGY AND,
ULTIMATELY, DETRIMENTAL TO THE FILIPINO PEOPLE.37ChanRoblesVirtualawlibrary
BCP argued that in the guise of taking on a supposed justiciable controversy, despite the Bt talong field
trials having been terminated, the CA entertained a prohibited collateral attack on the sufficiency of DAO
08-2002. Though not invalidating the issuance, which the CA knew was highly improper, it nonetheless
granted the petition for writ of kalikasan on the theory that "mere biosafety regulations" were insufficient
to guarantee the safety of the environment and the health of the people.
Also reiterated were those grounds for dismissal already raised by the petitioners: failure to exhaust
administrative remedies and finality of findings of administrative agencies.
BCP further asserts that the application of a stringent "risk assessment" process to regulated articles prior
to any release in the environment for field testing mandated by AO No. 8 sufficiently complies with the
rationale behind the development of the precautionary principle. By implementing the stringent provisions
of DAO 08-2002, in conjunction with the standards set by EO 514 and the NBF, the government
preemptively intervenes and takes precautionary measures prior to the release of any potentially harmful
substance or article into the environment. Thus, any potential damage to the environment is prevented or
negated. Moreover, international instruments ratified and formally adopted by the Philippines (CBD and the
Cartagena Protocol) provide additional support in the proper application of the precautionary principle in
relation to GMOs and the environment.
On the "misapplication" by the CA of the precautionary principle, BCP explains that the basic premise for
its application is the existence of threat of harm or damage to the environment, which must be backed by
a reasonable scientific basis and not based on mere hypothetical allegation, before the burden of proof is
shifted to the public respondents in a petition for writ of kalikasan. Here, the CA relied heavily on its
observation that "... field trials of bt talongcould not be declared ... as safe to human health and to
ecology, with full scientific certainty, being an alteration of an otherwise natural state of affairs in our
ecology" and "introducing a genetically modified plant in our intricate world of plants by humans certainly
appears to be an ecologically imbalancing act," among others. BCP finds that this pronouncement of the
CA constitutes an indictment not only against Bt talong but against all GMOs as well. The appellate court's
opinion is thus highly speculative, sweeping and laced with obvious bias.
There being no credible showing in the record that the conduct of Bt talong field trials entails real threats
and that these threats pertain to serious and irreversible damage to the environment, BCP maintains that
the precautionary principle finds no application in this case. While Rule 20 of the Rules of Procedure for
Environmental Cases states that "[w]hen there is a lack of full scientific certainty in establishing a causal
link between human activity and environmental effect, the court shall apply the precautionary principle in
resolving the case before it," the CA failed to note that the element of lack of full scientific certainty
pertains merely to the causal link between human activity and environmental effect, and not the existence
or risk of environmental effect.
BCP laments that sustaining the CA's line of reasoning would produce a chilling effect against technological
advancements, especially those in agriculture. Affirming the CA decision thus sets a dangerous precedent
where any and all human activity may be enjoined based on unfounded fears of possible damage to health
or the environment.
Issues

From the foregoing submissions, the Court is presented with the following issues for resolution:
1. Legal standing of respondents;

2. Mootness;
3. Violation of the doctrines of primary jurisdiction and exhaustion of administrative remedies;
4. Application of the law on environmental impact statement/assessment on projects involving the
introduction and propagation of GMOs in the country;
5. Evidence of damage or threat of damage to human health and the environment in two or more
provinces, as a result of the Bt talongfield trials;
6. Neglect or unlawful omission committed by the public respondents in connection with the
processing and evaluation of the applications for Bt talong field testing; and
7. Application of the Precautionary Principle.
The Court's Ruling

Legal Standing
Locus standi is "a right of appearance in a court of justice on a given question." 38 It refers particularly to "a
party's personal and substantial interest in a case where he has sustained or will sustain direct injury as a
result" of the act being challenged, and "calls for more than just a generalized grievance." 39
However, the rule on standing is a matter of procedure which 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.40 The Court thus had invariably adopted a liberal policy on standing to allow ordinary citizens and
civic organizations to prosecute actions before this Court questioning the constitutionality or validity of
laws, acts, rulings or orders of various government agencies or instrumentalities. 41
Oposa v. Factor an, Jr.42 signaled an even more liberalized policy on locus standi in public suits. In said
case, we recognized the "public right" of citizens to "a balanced and healthful ecology which, for the first
time in our nation's constitutional history, is solemnly incorporated in the fundamental law." We held that
such right need not be written in the Constitution for it is assumed, like other civil and political rights
guaranteed in the Bill of Rights, to exist from the inception of mankind and it is an issue of transcendental
importance with intergenerational implications. Such right carries with it the correlative duty to refrain
from impairing the environment.
Since the Oposa ruling, ordinary citizens not only have legal standing to sue for the enforcement of
environmental rights, they can do so in representation of their own and future generations. Thus:
Petitioners minors assert that they represent their generation as well as generations yet unborn. We find
no difficulty in ruling that they can, for themselves, for others of their generation and for the succeeding
generations, file a class suit. Their personality to sue in behalf of the succeeding generations can
only be based on the concept of intergenerational responsibility insofar as the right to a
balanced and healthful ecology is concerned. Such a right, as hereinafter expounded, considers the
"rhythm and harmony of nature." Nature means the created world in its entirety. Such rhythm and
harmony indispensably include, inter alia, the judicious disposition, utilization, management, renewal and
conservation of the country's forest, mineral, land, waters, fisheries, wildlife, off-shore areas and other
natural resources to the end that their exploration, development and utilization be equitably accessible to
the present as well as future generations. Needless to say, every generation has a responsibility to the
next to preserve that rhythm and harmony for the full enjoyment of a balanced and healthful ecology. Put a
little differently, the minors' assertion of their right to a sound environment constitutes, at the same time,
the performance of their obligation to ensure the protection of that right for the generations to
come.43 (Emphasis supplied.)
The liberalized rule on standing is now enshrined in the Rules of Procedure for Environmental Cases which
allows the filing of a citizen suit in environmental cases. 44 The provision on citizen suits in the Rules
"collapses the traditional rule on personal and direct interest, on the principle that humans are stewards of
nature," and aims to "further encourage the protection of the environment." 45
There is therefore no dispute on the standing of respondents to file before this Court their petition for writ
of kalikasan and writ of continuing mandamus.
Mootness
It is argued that this case has been mooted by the termination of all field trials on August 10, 2012. In fact,
the validity of all Biosafety permits issued to UPLB expired in June 2012.
An action is considered 'moot' when it no longer presents a justiciable controversy because the issues
involved have become academic or dead, or when the matter in dispute has already been resolved and

hence, one is not entitled to judicial intervention unless the issue is likely to be raised again between the
parties.46 Time and again, courts have refrained from even expressing an opinion in a case where the
issues have become moot and academic, there being no more justiciable controversy to speak of, so that a
determination thereof would be of no practical use or value. 47
Nonetheless, courts will decide cases, otherwise moot and academic if: first, there is a grave violation of
the Constitution; second, the exceptional character of the situation and the paramount public interest is
involved; third, when the constitutional issue raised requires formulation of controlling principles to guide
the bench, the bar and the public; and fourth, the case is capable of repetition yet evading review. 48 We
find that the presence of the second and fourth exceptions justified the CA in not dismissing the case
despite the termination of Bt talong field trials.
While it may be that the project proponents of Bt talong have terminated the subject field trials, it is not
certain if they have actually completed the field trial stage for the purpose of data gathering. At any rate,
it is on record that the proponents expect to proceed to the next phase of the project, the preparation for
commercial propagation of the Bt eggplants. Biosafety permits will still be issued by the BPI for Bt talong or
other GM crops. Hence, not only does this case fall under the "capable of repetition yet evading review"
exception to the mootness principle, the human and environmental health hazards posed by the
introduction of a genetically modified plant, a very popular staple vegetable among Filipinos, is an issue of
paramount public interest.
Primary Jurisdiction and Exhaustion of Administrative Remedies
In Republic v. Lacap,49 the Court explained the related doctrines of primary jurisdiction and exhaustion of
administrative remedies, as follows:
The general rule is that before a party may seek the intervention of the court, he should first avail of all the
means afforded him by administrative processes. The issues which administrative agencies are authorized
to decide should not be summarily taken from them and submitted to a court without first giving such
administrative agency the opportunity to dispose of the same after due deliberation.
Corollary to the doctrine of exhaustion of administrative remedies is the doctrine of primary jurisdiction;
that is, courts cannot or will not determine a controversy involving a question which is within the
jurisdiction of the administrative tribunal prior to the resolution of that question by the administrative
tribunal, where the question demands the exercise of sound administrative discretion requiring the special
knowledge, experience and services of the administrative tribunal to determine technical and intricate
matters of fact.
Nonetheless, the doctrine of exhaustion of administrative remedies and the corollary doctrine of primary
jurisdiction, which are based on sound public policy and practical considerations, are not inflexible
rules. There are many accepted exceptions, such as: (a) where there is estoppel on the part of the
party invoking the doctrine; (b) where the challenged administrative act is patently illegal, amounting to
lack of jurisdiction; (c) where there is unreasonable delay or official inaction that will irretrievably prejudice
the complainant; (d) where the amount involved is relatively small so as to make the rule impractical and
oppressive; (e) where the question involved is purely legal and will ultimately have to be decided by the
courts of justice; (f) where judicial intervention is urgent; (g) when its application may cause great and
irreparable damage; (h) where the controverted acts violate due process; (i) when the issue of nonexhaustion of administrative remedies has been rendered moot; (j) when there is no other plain,
speedy and adequate remedy; (k) when strong public interest is involved; and, (1) in quo
warranto proceedings. x x x (Emphasis supplied)
Under DAO 08-2002, the public is invited to submit written comments for evaluation by BPI after public
information sheets have been posted (Section 7[G]). Section 7(P) also provides for revocation of field
testing permit on certain grounds, to wit:
P. Revocation of Permit to Field Test. - A Permit to Field Test may be revoked for any of the following
grounds:
1. Provision of false information in the Application to Field Test;
2. Violation of SPS or biosafety rules and regulations or of any conditions specified in the permit;
3. Failure to allow the inspection of the field testing site;
4. Receipt by BPI of new information that the field testing of the regulated article poses significant
risks to human health and the environment;
5. Whether the regulated article was imported, misdeclaration of shipment; or
6. Such other grounds as BPI may deem reasonable to prevent significant risks to human health and
the environment.

Respondents sought relief under the Rules of Procedure for Environmental Cases, claiming serious health
and environmental adverse effects of the Bt talongfield trials due to "inherent risks" associated with
genetically modified crops and herbicides. They sought the immediate issuance of a TEPO to enjoin the
processing for field testing and registering Bt talong as herbicidal product in the Philippines, stopping all
pending field trials of Bt talong anywhere in the country, and ordering the uprooting of planted Bt talong in
the field trial sites.
In addition to the TEPO and writ of kalikasan, respondents also sought the issuance of a writ of continuing
mandamus commanding the respondents to: (1) comply with the requirement of environmental impact
statement; (2) submit comprehensive risk assessments, field test reports, regulatory compliance reports
and other material documents on Bt talong including issued certifications on public consultation with LGUs;
(3) work with other agencies to submit a draft amendment to biosafety regulations; and (4) BPI, in
coordination with relevant government agencies, conduct balanced nationwide public information on the
nature of Bt talong field trial, and a survey of its social acceptability.
Clearly, the provisions of DAO 08-2002 do not provide a speedy, or adequate remedy for the respondents
"to determine the questions of unique national and local importance raised here that pertain to laws and
rules for environmental protection, thus [they were] justified in coming to this Court." 50 We take judicial
notice of the fact that genetically modified food is an intensely debated global issue, and despite the entry
of GMO crops (Bt corn) into the Philippines in the last decade, it is only now that such controversy involving
alleged damage or threat to human health and the environment from GMOs has reached the courts.
Genetic Engineering

Genetic manipulation has long been practiced by conventional breeders of plant or animal to fulfill specific
purposes. The basic strategy employed is to use the sexual mechanism to reorganize the genomes of two
individuals in a new genetic matrix, and select for individuals in the progeny with the desirable
combination of the parental characteristics. Hybridization is the conventional way of creating variation. In
animals, mating is effected by introducing the desired sperm donor to the female at the right time. In
plants, pollen grains from the desired source are deposited on the stigma of a receptive female plant.
Pollination or mating is followed by fertilization and subsequently development into an embryo. The effect
of this action is the reorganization of the genomes of two parents into a new genetic matrix to create new
individuals expressing traits from both parents. The ease of crossing of mating varies from one species to
another. However, conventional breeding technologies are limited by their long duration, need for sexual
compatibility, low selection efficiency, and restricted gene pool. 51
Recombinant DNA (rDNA) technology, often referred to as genetic engineering, allows scientists to transfer
genes from one organism to any other, circumventing the sexual process. For example, a gene from a
bacterium can be transferred to corn. Consequently, DNA technology allowed scientists to treat all living
things as belonging to one giant breeding pool. Unlike other natural genome rearrangements
phenomena, rDNA introduces alien DNA sequences into the genome. Even though crossing of two sexually
compatible individuals produces recombinant progeny, the term recombinant DNA is restricted to the
product of the union of DNA segments of different biological origins. The product of recombinant DNA
manipulation is called a transgenic organism. rDNA is the core technology of biotechnology. 52
The organism that is created through genetic engineering is called a genetically modified organism (GMO).
Since the production of the first GMOs in the 1970s, genes have been transferred between animal species,
between plant species, and from animal species to plant species. Some genes can make an animal or plant
grow faster or larger, or both. A gene produced by flounder (anti-freeze) was transplanted into salmon so
that salmon can be farmed in colder climates. Many species offish are genetically engineered to speed
growth, to alter flesh quality, and to increase cold and disease resistance. In farm animals such as cattle,
genes can be inserted to reduce the amount of fat in meat, to increase milk production, and to increase
superior cheese-making proteins in milk. Biotechnology has also modified plants to produce its own
pesticide, resist common diseases or to tolerate weed-killing herbicide sprays. 53
Despite these promising innovations, there has been a great deal of controversy over bioengineered foods.
Some scientists believe genetic engineering dangerously tampers with the most fundamental natural
components of life; that genetic engineering is scientifically unsound; and that when scientists transfer
genes into a new organism, the results could be unexpected and dangerous. But no long-term studies have
been done to determine what effects GMO foods might have on human health. 54
Genetically Modified Foods

The term GM food refers to crop plants created for human or animal consumption using the latest
molecular biology techniques. These plants are modified in the laboratory to enhance desired traits such
as increased resistance to herbicides or improved nutritional content. 55 Genetic modification of plants
occurs in several stages:
1. An organism that has the desired characteristic is identified and the specific gene producing this
characteristic is located and the DNA is cut off.

2. The gene is then attached to a carrier in order to introduce the gene into the cells of the plant to be
modified. Mostly plasmid (piece of bacterial DNA) acts as a carrier.
3. Along with the gene and carrier a 'promoter' is also added to ensure that the gene works
adequately when it is introduced into the plant.
4. The gene of interest together with carrier and promoter is then inserted into bacterium, and is
allowed to reproduce to create many copies of the gene which are then transferred into the plant
being modified.
5. The plants are examined to ensure that they have the desired physical characteristic conferred by
the new gene.
6. The genetically modified plants are bred with conventional plants of the same variety to produce
seed for further testing and possibly for future commercial use. The entire process from the initial
gene selection to commercial production can take up to ten years or more. 56
Benefits of GM Foods
The application of biotechnology in agricultural production promises to overcome the major constraints
being faced in farming such as insect pest infestation and diseases which lead to substantial yield losses.
Pest-resistant crops could substantially improve yields in developing countries where pest damage is
rampant and reduce the use of chemical pesticides. Crop plants which have been genetically engineered to
withstand the application of powerful herbicides57 using genes from soil bacteria eliminates the timeconsuming and not cost-effective physical removal of weeds by tilling. The herbicides to which the GM
crops are tolerant are "broad spectrum" weedkillers, which means they can be sprayed over the entire
field, killing all plants apart from the GM crop. Herbicide-tolerant crops include transgenes providing
tolerance to the herbicides (glyphosate or glufosinate ammonium). These herbicides kill nearly all kinds of
plants except those that have the tolerance gene. Another important benefit is that this class of herbicides
breaks down quickly in the soil, eliminating residue carryover problems and reducing adverse
environmental impacts.58
Some plants are genetically engineered to withstand cold climates such as GM strawberries or soybeans,
expressing the anti-freeze gene of arctic flounder, to protect themselves against the damaging effects of
the frost; and GM tobacco and potato with anti-freeze gene from cold water fish. Crops could also be
genetically modified to produce micronutrients vital to the human diet such as the "golden rice" genetically
modified to produce beta-carotene, which can solve Vitamin A deficiency and prevent night blindness in
pre-school children. Other efforts to enhance nutritional content of plants include the genetic modification
of canola to enhance Vitamin E content or better balance fatty acids, cereals for specific starch or protein,
rice for increased iron to reduce anemia, and plant oils to adjust cholesterol levels. There are also food
crops engineered to produce edible vaccines against infectious diseases that would make vaccination more
readily available to children around the world. For example, transgenic bananas containing inactivated
viruses protecting against common developing world diseases such as cholera, hepatitis B and diarrhea,
have been produced. These vaccines will be much easier to ship, store and administer than traditional
injectable vaccines.59
Overall, biotechnology is perceived as having the potential to either help or hinder reconciling of the often
opposing goals of meeting the human demand for food, nutrition, fiber, timber, and other natural
resources. Biotech crops could put more food on the table per unit of land and water used in agriculture,
thus resulting in decreased land and water diverted to human uses. Increasing crop yields and reducing
the amount of cultivated land necessary would also reduce the area subject to soil erosion from
agricultural practices, which in turn would limit associated environmental effects on water bodies and
aquatic species and would reduce loss of carbon sinks and stores into the atmosphere. 60
Adverse Health Effects of GMOs
Along with the much heralded benefits of GM crops to human health and environment, there emerged
controversial issues concerning GM foods.
In 1999, it was found that genetically engineered foods can have negative health effects. Based on
scientific studies, these foods can unleash new pathogens, contain allergens and toxins, and increase the
risk of cancer, herbicide exposure, and harm to fetuses and infants. 61 Independent studies conducted went
as far to conclude that GM food and feed are "inherently hazardous to health." 62
A widely reported case is that of the Brazil nut gene expressed in soybean in order to increase the
methionine content for animal feed. The protein was subsequently shown to be an allergen and the
product was never marketed. Genetically modified foods can introduce novel proteins into the food supply
from organisms that are never consumed as foods, which may pose a health risk. This may elicit
potentially harmful immunological responses, including allergic hypersensitivity. 63
A feeding experiment conducted by Dr. Arpad Pusztai also demonstrated that potatoes genetically altered
to produce lectins, natural insecticides, to protect them against aphids, damaged the animals' gut, other
organs, and immune system. Dr. Pusztai found that "the damage originated not from the transgene and its

expressed product but from the damage caused by the insertion of the transgene, probably due to
insertional mutagenesis."64 If confirmed, Pusztai's conclusions will reinforce concerns that gene insertion
itself may create new toxins; it will also implicate the toxin commonly used in other genetically engineered
crops - the Bt toxin which, Pusztai says, is also a lectin. 65
The use of antibiotic resistance marker (arm) gene, inserted into a plant or microbe, that helps determine
if the foreign gene has successfully spliced into the host organism, is another cause of grave concern
among scientists. These arm genes might unexpectedly recombine with disease-causing bacteria or
microbes in the environment or in the guts of animals or humans who eat GM food, thus contributing to the
growing public health danger of antibiotic-resistance of infections that cannot be cured with traditional
antibiotics (e.g., new strains of salmonella, e-coli, campylobacter and enterococci). 66However, recent
advances in genetic engineering indicate that use of such selection markers is likely to diminish with the
anticipated development of alternative types of marker genes.67
Increased cancer risk is another critical issue in the consumption of GM foods. A growth hormone
genetically modified to stimulate milk production in cows was found to elevate levels of IGF-1 (insulin-like
Growth Factor-1, identical versions of which occurs in cows and humans) in cow's milk by 80%. IGF-1 is
reported to be a key factor in prostate cancer, breast cancer and lung cancer. 68 Dr. Samuel Epstein of the
University of Illinois warned of the danger of high levels of IGF-1 contained in milk cows injected with
synthetic bovine growth hormone (rBGH), which could be a potential risk factor for breast and
gastrointestinal cancers.69
Glyphosate, the active ingredient in Monsanto's Roundup herbicide, has been found to worsen modern
diseases. A report published in the journal Entropyargues that glyphosate residues, found in most
commonly consumed foods in the Western diet courtesy of genetically engineered sugar, corn, soy and
wheat, "enhance the damaging effects of other food-borne chemical residues and toxins in the
environment to disrupt normal body functions and induce disease." Another research demonstrated a
connection between increased use of Roundup with rising autism rates in the US. 70
Adverse Effects of GMOs to the Environment
Genetically modified crops affect the environment in many ways such as contaminating non-GMO plants,
creating super weeds and super pests, harming non-target species, changing soil microbial and
biochemical properties, and threatening biodiversity.
There are two primary types of technology so far deployed: insect resistance (Bt) and herbicide tolerance
(HT). Both have drastic modes of action to kill the target species at high efficiency. Bt crops contain a toxin
lethal to certain insects, and Bt sprays have been used by organic farmers as a last option to deal with
certain pests like the corn borer. It is feared that genetically modified Bt crops will speed up resistance
to Bt, thereby rendering the organic spray ineffective.71 Lab and field tests also indicate that common plant
pests such as cotton bollworms, living under constant pressure from GE crops, will soon evolve into
"superpests" completely immune to Bt sprays and other environmentally sustainable biopesticides.72 In the
case of HT, the technology involves the combined use of a chemical herbicide and a GM plant. The
herbicide is generally a broad spectrum herbicide (commonly glyphosate or glufosinate) which kills weeds
while leaving the crop plant alive as it is genetically engineered to be resistant to the herbicide. The
herbicide acts to inhibit an essential enzyme that is found in all plants and as a result is able to eliminate
all weeds whereas most conventional herbicides are selective in their action and target a limited number
of weeds. Concern has been raised regarding over-reliance on use of one or two herbicides in increased
amounts over time which leads to the emergence of herbicide resistant weeds. Also, the transfer of an
herbicide-resistance gene into a weed can convert it into a superweed. Pests and weeds will emerge that
are pesticide or herbicide resistant, which means that stronger, more toxic chemicals will be needed to get
rid of the pests.73
It is a well-accepted fact that genetically engineered plants can move beyond the field sites and cross with
wild relatives.74 It is by nature a design of plants to cross pollinate to spread genes further afield. Maize, oil
seed rape, sugar beet, barley, among others, are wind and insect pollinated, allowing pollen to travel large
distances. In GM crop fields, pollen drift and insect pollination create obvious problems for nearby non-GM
or organic crops.75 GM maize could cross-pollinate neighboring non-GM or organic maize crops. Maize
pollen can travel at least 500-700 meters and still be viable and distances of several kilometers have even
been reported.76 But many experiments showed varying results and actual cross-pollinations were
observed in Mexico up to 200 meters only, while in Oklahoma it was 500 meters. In crop species that are
outcrossers, many environmental factors influence the maximum pollination distance such as the size of
pollen grains, the humidity in the air, and the wind speed. 77Brinjal is usually self-pollinated, but the extent
of cross-pollination has been reported as high as 48% and hence it is classified as cross-pollinated crop.
The cone-like formation of anthers favors self-pollination; but since the stigma ultimately projects beyond
the anthers, there is an ample opportunity for cross-pollination. The rates of natural cross-pollination may
vary depending on genotype, location, and insect activity. The extent of outcrossing has been reported
from 3 to 7% in China and from 0 to 8.2% (with a mean of 2.7%) at Asian Vegetable Research Development
Centre; however the Indian researchers have reported 2 to 48% outcrossing in brinjal varieties in India.
Outcrossing primarily takes place with the help of insects. 78
The StarLink incident is also a widely reported GM fiasco. In June 2000, Starlink, a genetically modified
yellow corn which contains the pesticide Bt in every cell, was found in white corn tortilla chips in Florida,
USA. Starlink had been approved for animal feed but not for human consumption due to concerns about

dangerous allergic reactions. The Starlink incident is often cited to illustrate how difficult it is to keep
genetically modified crops from spreading.79
This gene flow to wild species is particularly alarming to environmentalists. The wild species from which
our agricultural plants originate are an important genetic resource for further plant breeding if, for
example, there is a requirement for improved resistance to climate change or plant pests. Future plant
breeding could be jeopardized if transgenes spread into these resources. Similarly, agriculture in the
centers of origin could be permanently damaged if transgenes spread into regional landraces. 80 Invasive
species can replace a single species or a whole range of species, and they can also change the conditions
within ecological systems. Crossing can cause losses in the genetic information of the original species, a
reduction in genetic diversity and an ongoing incremental change of genetic identity in the original plants.
It is hard to predict which species will become invasive. 81 Indeed, GM crops could threaten the centers of
crop biodiversity or outgrow a local flora to the detriment of native species. 82
Bt gene in genetically modified crops might be toxic to non-target organisms that consume it.
When Bt corn sheds its pollen, these are cast into the wind, dusting nearby plants and trees. Concern has
been expressed about the potential toxicity of the Bt toxin in corn pollen to the monarch butterfly because
initial laboratory studies showed increased mortality in larvae. However, in another study it was believed
that it is unlikely that a significant risk to those butterflies exists. 83
On the effect of transgene crops on soil, one study investigated CrylAcc and CpTI proteins and their effects
on microbial properties and enzyme activities. Results showed that there was persistence of said proteins
in soil under 4-year consecutive cultivation of transgenic cottons. Soil microbial biomass carbon, microbial
activities, and soil enzyme activities (except urease and phosphodiesterase) significantly decreased in soil
under transgenic cottons.84
In another review, it was stated that the direct effects of the plant that has been modified is of the most
concern since the introduction of transgenic proteins for pest and disease resistance can involve the
production of chemical substances that are potentially toxic to non-target soil organisms, including
mycorrhizal fungi and soil microfauna that are involved in organic matter decomposition. Experimental
studies have shown that the transgenic proteins Btcrystal toxin and T4 lysozyme, though used to prevent
insect damage to the above ground plant parts, are not only present in root exudates but that they
maintain biological activity after entering the soil.85
As to the herbicide glyphosate, recent studies revealed its negative effects on the soil, which include
compaction and resultant runoff, the killing of beneficial microbes and bacteria, and the exhaustion of
necessary minerals and nutrients that plants require. It was found that glyphosate "locks up" manganese
and other minerals in the soil so that they can't be utilized by the plants that need them, and that it is
toxic to rhizobia, the bacterium that fixes nitrogen in the soil. There is likewise evidence showing that
glyphosates can make their way to groundwater supplies.86 In a study which tested the effects of the
herbicide Roundup on six species of larval amphibians from North America, it was demonstrated that when
we "use realistic exposure times and the frequently occurring stress of predators found in natural ecologic
communities, one of our most widely applied herbicides (Roundup) has the potential to kill many species of
amphibians." At the same time, the study noted that Monsanto Corporation has recently released "an
additional formulation of glyphosate (Roundup Biactive), which contains a different (but unspecified)
surfactant that is reported to be less toxic."87
Evidence of Damage or Threat of Damage to Human Health and the Environment

Both petitioners and respondents submitted documentary evidence consisting of reports of scientific
studies and articles in support of their respective positions on the benefits and risks of GM plants.
Further, the parties presented their respective expert witnesses who testified on the allegations raised in
the petition concerning damage or threat of damage to human health and the environment resulting from
the conduct of Bt talong field trials in the Philippines. The CA conducted "hot tubbing," the colloquial term
for concurrent expert evidence, a method used for giving evidence in civil cases in Australia. In a "hot tub"
hearing, the judge can hear all the experts discussing the same issue at the same time to explain each of
their points in a discussion with a professional colleague. The objective is to achieve greater efficiency and
expedition, by reduced emphasis on cross-examination and increased emphasis on professional dialogue,
and swifter identification of the critical areas of disagreement between the experts. 88
On November 20, 2012, the parties' expert witnesses testified in a hot tub hearing before the chairman
and members of the CA's Special Thirteenth Division. Dr. Chakraborty, Dr. Medina and Dr. Malayang were
presented by the petitioners while Dr. Davies, Dr. Halos, Dr. Ebora and Dr. Cario appeared for the
respondents.
The following are summaries of the expert witnesses' judicial affidavits:
For Petitioners
DR. DAVIES, Professor of Plant Physiology at Cornell University, Jefferson Science Fellow serving as senior
science advisor on agricultural biotechnology in the US Department of State, and editor for plant

physiology for McGraw-Hill Encyclopedia of Science and Technology.

In his review of agricultural biotechnology around the world, he has not encountered any verifiable report
of a field trial of any GM crop that caused damage to the environment and to human health. This involves
more than 25,000 field trials in 20 years with crops such as Bteggplant, Bt cotton, Bt corn, and others. The
same applies to the commercial cultivation of Bt crops, which have been grown in ever increasing
quantities worldwide for 16 years and now comprise the majority of the world acreage of maize and cotton.
A recent European Union (EU) report which concludes that more than 130 EU research projects covering a
period of more than 25 years of research involving more than 500 independent research groups, show that
consuming foods containing ingredients derived from GM crops is no riskier than consuming the same
foods containing ingredients from conventional crops. The World Health Organization (WHO), American
Medical Association, US National Academy of Sciences, European Food Safety Authority (EFSA) all have
come to the same conclusion.
GMOs have been proven safe as conventionally-bred crops in animal studies. A small number of poorly
done studies purportedly claiming negative effects, should be viewed with great caution and have been
highly criticized for their veracity by the overwhelming majority of highly respected scientists. Many
hundreds of studies show no harmful effects. To date, not a single rigorous study of GM foods in animals
has revealed any adverse effect; not a single case of allergy, illness, cancer, or death have been shown to
be associated with foods derived from GM crops, despite the fact that they have been consumed by
Americans for 16 years.
Recent studies indicate that Bt crops enhance the ecological diversity in the areas surrounding those
where Bt crops are grown. Over a period of 13 years, cultivation of Bt cotton in China results in an increase
in insect diversity and abundance and a decrease in crop damaging insects not only in Bt crop fields but
also in surrounding non-Bt fields.
GM crops deliver significant yield increases, result in less exposure to pesticides, improve food security
worldwide, protect against devastating crop losses and famine, improve nutrition, and some GM crop
techniques help combat climate change.89
DR. HALOS, Ph.D. in Genetics, University of California Berkeley, B.S. Agriculture, Major in Agronomy (Plant
Breeding), UPLB, and served as Instructor, Associate Professor, Chief Science Research Specialist, Research
Director at UPLB, UP Diliman, De La Salle University, Forest Research Institute now Ecosystems Research
and Development Bureau of DENR and the Biotechnology Coalition of the Philippines.
From her research, she gathered that the protein product of the Bt gene CrylAcc in Bt cotton that is also
in Bt eggplant has been found safe by many food and environmental safety regulatory agencies such as
those in Australia, New Zealand, USA, Canada, Brazil, China, India, Mexico, Argentina, South Africa, Japan
and EU.
Since 2002, BPI has granted 95 biosafety permits for field trials. Of these 70 field trial permits were
for Bt corn, cotton and eggplant. No adverse effect of any of these Bt crop field trials have been reported.
No report of adverse effects of Bt crop field trial exists. All claims of adverse health and environmental
effects of Bt crops has not been scientifically validated. The yearly expansion of GM crop areas in both the
developing and industrialized countries is an attestation of the preference of farmers and the economic
benefits that accrue to them.
GM crops have positive environmental impact. Currently commercialized GM crops have reduced the
adverse impacts of agriculture on biodiversity. The use of Bt crops has significantly reduced the use of
pesticides, and also increased farmer incomes.90
DR. EBORA, Ph.D. in Entomology, Michigan State University; B.S. Agriculture and M.S. Entomology (Insect
Pathology/Microbial Control), UPLB; Post-graduate trainings in microbiology and biotechnology, Osaka
University, Japan, and Intellectual Property Management and Technology Transfer, ISAAA AmeriCenter,
Cornell University, USA. Director, and Research Associate Professor, National Institute of Molecular Biology
and Biotechnology (BIOTECH), UPLB; Philippine Coordinator of the Program for Biosafety Systems; former
Executive Director, Philippine Council for Industry, Energy and Emerging Technology Research and
Development, DOST; former Chair, Biosafety Committee, DOST; and was a Member of the Institutional
Biosafety Committees of UPLB and International Rice Research Institute (IRRI); and was extensively
involved in the isolation, bioassay or efficacy testing and development of Bt as microbial insecticides for
the control of Asian corn borer and mosquito larvae at BIOTECH.
The contained field trial experiments, among others, were designed to address concerns on crosspollination or horizontal gene transfer, pollination distances, harm to beneficial organisms, and
development of insect resistance. To prevent cross-pollination, an isolation distance of 200 meters from
other areas where eggplants are grown or wild relatives are present, was observed, and with five (5) rows
of non-transgenic eggplants that serve as pollen trap plants. As to the flight distance of honeybees
reaching 4 kilometers, what was not mentioned is the viability of pollen after it was shed and travelled at a
certain distance. Numerous literatures have shown that isolation distances much less than 200 meters is
sufficient to prevent cross-pollination. Two studies are cited: Sekara and Bieniasz (2008) noted that crosspollination at a distance of 50 meters was nonexistent; and the Asian Vegetable Research and
Development Center (AVRDC) indicated that eggplants produce perfect flowers which may be cross-

pollinated but self-pollination is more common, the extent of natural crossing depends upon insect activity
and this can be avoided by isolating each variety by 20 meters or with another tall flowering plant. The
isolation distance imposed by DA-BPI is 1 Ox the recommended isolation distance; the 200 meters distance
was found sufficient for pure seed production in India (the same recommendation by Chen [2001] of
AVRDC foundation for seed production purity standards); field studies in 2 locations in India have shown
that at a distance beyond 30 meters no more outcrossing could be detected. Taking all these data into
account, the 48% outcrossing being raised by petitioners is most likely for adjacent plants and therefore
not a valid argument for the on-going field trials.
The Bt talong will not directly affect beneficial organisms like pollinators, predators and parasites of insect
pests because it is toxic only to caterpillars or insects belonging to Order Lepidoptera (butterfly and
moths). The selective toxicity of Bt protein in Bt talong is partly due to the fact that the gut physiology of
these insects is very different from caterpillars, and not all caterpillars are affected by it. There is a
significant number of literature on Bt protein's selectivity and specificity.
As to the development of insect resistance, this is not possible during the multi-location field trials for Bt
talong because of low selection pressure and limited exposure of the insect pest to Bt talong. Insect
resistance is not unique to GM crops as it is a commonly observed biological reaction of insect pests to
control measures like insecticides. In the event Bt talong is approved for commercialization and will be
widely used by fanners, this concern could be addressed by insect resistance management (IRM); an IRM
strategy should be required prior to the commercial release of Bt talong.
There is no compelling reason to stop the field trials; on the contrary they should be allowed to proceed so
that scientists and researchers will be able to generate valuable data and information which will be helpful
in making informed decisions regarding the usefulness of the technology. 91
For Respondents
DR. MALAYANG III, Ph.D. in Wildland Resource Science, University of California at Berkeley; M.A.
Philosophy, M.A. International Affairs (Southeast Asia Studies major in Economics), Ohio University; AB
Philosophy, UP Diliman; former Undersecretary of Environment and Natural Resources; served as
Environmental Science representative in the National Biosafety Committee of the Philippines and
participated in the drafting of the Philippines Biosafety Framework; and student, lecturer and advocate of
biodiversity, food security, biosafety and environmental policy.
He is concerned with how GMOs are being introduced for commercial-scale use (as against being used for
academic research) in the Philippines on the following grounds: (a) how they might contaminate the
indigenous genetic resources of the country; (b) how they may cause an imbalance of predator-prey
relationships in ecosystems, so that certain species might dominate ecological niches and erode their
biodiversity and ecological stability; (c) how they may erode the ability of farmers to control their genetic
resources to sustain their cropping systems; and (d) how much are present biosafety protocols able to
safeguard the long-term ecological and economic interests of the Philippines as a particularly biodiversityrich country and which is, therefore, highly sensitive to genetic pollution; to the extent that its biodiversity
is its long-term equity to advances in biotechnology, the most robust measures must be taken so that such
resources will not be lost.
Being a highly biodiversity-rich country, biosafety measures in the Philippines must be adopted using a 3stage approach: Stage 1 - Develop criteria for biosafety measures; meaning, first, adopt a set of standards
for determining the level of robustness of biosafety measures and protocols that would be acceptable in
the particular case of the Philippines; include required scoping and internal and external validity
requirements of impact and safety assessments; Stage 2 - Using the criteria produced in Stage 1, develop
biosafety measures and protocols to be adopted in the Philippines; and Stage 3 - Apply the protocol with
the highest rigor.
Biosafety must be a public affair involving a broad spectrum of the Filipino state rather than its
considerations being restricted only to specific professionals and sectors in the country; biosafety must be
based on an enactment of Congress and open to challenge and adjudication against international laws;
provisions must be made to make it a crime against humanity to recklessly erode and weaken genetic
resources of our people.92
DR. MEDINA, Ph.D. in Environmental Biology, University of Guelph, Canada; M.S. (Insect and Plant
Ecology) and B.S. Agriculture, UPLB; National Coordinator of MASIPAG; served as resource person in more
than a hundred trainings and seminars, both local and abroad; served as member in international
agricultural assessment sponsored by Food and Agriculture Organization (FAO), United Nations
Environment Program (UNEP), WHO, and the World Bank; worked on a project for development of
resistance to corn borer in 1981 at the Institute of Plant Breeding in UPLB, and served as researcher and
later Associate Professor of Environmental Management of the UP Open University.
Based on her studies and extensive experience, the Bt talong field testing poses the following risks or
hazards: (a) While natural Bt sprays used in organic farming have little effect on non-target organisms
because the bacterial 'pro-toxin' is in an inactive state and only becomes toxic when processed and
reduced in the gut of certain (targeted) species of insect larvae, in contrast, Bt plants contain an artificial,
truncated Bt gene and less processing is required to generate the toxin because the toxin is already in its
active form. It is therefore less selective, and may harm non-target insects that do not have the enzymes

to process the pro-toxin, as well as the pests for which it is intended; (b) Bt proteins from natural Bt sprays
degrade relatively quickly in the field as a result of ultraviolet light and lose most toxic activity within
several days to two weeks after application. In Bt crops, however, the Bt toxin is produced by the internal
system of the plants thus non-degradable by mere exposure to sunlight and generated throughout the
entire lifespan of the plant; (c) Bt talong can also affect the environment by harming important or
beneficial insects directly or indirectly. Genetically engineered Bt eggplant, like other Btcrops, could be
harmful to non-target organisms if they consume the toxin directly in pollen or plant debris. This could
cause harm to ecosystems by reducing the numbers of important species, or reducing the numbers of
beneficial organisms that would naturally help control the pest species; (c) The evolution of resistance
to Bt crops is a real risk and is treated as such in ecological science throughout the world. If enough
individuals become resistant then the pest control fails; the pest becomes abundant and affects crop yield.
Granting the pest control practice is successful, it may also simply swap one pest for another, a
phenomenon known as secondary pest outbreak. Several studies have shown that other pest insects are
filling the void left by the absence of the one (or very few) insect pests that Bt crops target, and this is now
the problem with Bt maize.
Eggplant is 48% insect pollinated thereby any field release or field testing of genetically modified Bt
talong will eventually lead to contamination of non-genetically modified eggplant varieties. Insects,
particularly honeybees, can fly as far as 4 kilometers and therefore the 200 meters perimeter pollen trap
area in the confined field testing set by BPI is not sufficient. And once contamination occurs, genetic
cleanup of eggplant or any other plant is impossible. Moreover, intra-specific gene flow from Bt talong to
other varieties and populations of eggplants should be examined, as cultivated eggplant (Solanum
melongena) can cross breed with feral populations of S. melongena, and it is possible that cultivated
varieties can revert to wild phenotypes. Additionally, there is likely to be natural crossing
between Bt talong and wild relatives. Hybridization with perhaps as many as 29 wild relative species needs
to be evaluated carefully and the consequences of any hybridization that occurs needs to be evaluated.
In 2010, the Minister of Environment and Forests of the Government of India, in his decision for moratorium
of Bt Brinjal, listed potential contamination of eggplant varieties as one of the reasons why the release
of Bt Brinjal was not allowed. Dr. Andow of the University of Minnesota also published an 84-pages report
on the Environmental Risk Assessment of Bt Brinjal, and among his conclusions is that several
environmental risks were not considered and nearly all the risk assessment done were inadequate. He
concluded that until the risks were understood or managed, there seems to be little reason to approve Bt
Brinjal release.93
DR. CHAKRABORTY, Ph.D., M.S. Biochemistry, B.S. (Honors in Chemistry), Calcutta University; Molecular
Biologist, presently Principal Scientist and Head of the Gene Regulation Laboratory in the Council of
Scientific and Industrial Research - Indian Institute of Chemical Biology (CSIR-IICB); Member, Governing
Body and Executive Committee of the state council of Biotechnology, Government of West Bengal and
Chairman of the Biotechnology group of the state council of Science and Technology, Government of West
Bengal; Visiting Professor of the National Institute of Science, Technology and Development (CSIR-NISTAD);
citizen of India and resident of Kolkata, India.
GMO is a classic example of "paradoxes of consequences", where human actions have unintended
consequences, which are in direct opposition to what was intended. The difference in controlled laboratory
condition and standards, and real life open field level micro and macro-environment pushes the advantage
towards the target and non-target living system, with time. The pest resistance to Bt toxin and
development of herbicide tolerance (HT) in weeds is just a matter of time. The decade long experience
in Bt and Ht genes amply proves this point. If we ignore this now - we are manufacturing a global
environmental disaster - which will be a crime against humanity. There is no way to recall these GMO from
the environment.
Even the short term benefits of GM agriculture are not scale neutral, or location-independent. It will help
the monopoly agribusiness and the expenses of monopolistic competition or cooperative organic farming.
Hot climate and rich biodiversity is detrimental towards the effectiveness of Bt constructs, and helpful
towards unintended gene flow. Moreover, the genetic manipulation is no way fail safe or exact. Shotgun
techniques are being adapted, aided by focused laboratory based screen of traits - rather than the host or
the full natural product. The GM labeling is avoided to cover up this major fault.
The tendency to avoid the available risk assessment, and test is very clear in the GM agribusiness. Before
going ahead with spread of this technology, even in a batter form, the foremost task is to establish
rigorous test and assessment procedures. There are excellent available tools of preteomics,
transcriptomics, and metabolomics for detailed compositional analysis in our hand to do this. Please ask,
why they are not being employed? In fact, there is not a single centre to test GM products on behalf of the
corporate GM Agribusiness house. Thus, low level, long term toxicity of GM foods are yet to be tested. I
believe the time has come to establish a standardization facility to carry out such test facility in any
country before giving permission to GM trial or cultivation.94ChanRoblesVirtualawlibrary
The relevant portions of the "hot-tub" hearing held on November 20, 2012, are herein reproduced:
Dr. Cario:chanRoblesvirtualLawlibrary
x x x This is to clarify something with the BT Talong and the BT Talong has its substance. It is not supposed

to be consumed at the moment still under field trial, so it is not supposed to be eaten at the moment. It
has not been released for food nor for feed and so in the context of a confined field test, it has supposed to
have it out in the field in a very controlled manner and any produce that comes out from that area is
supposed to be destroyed or kept from further safety and analysis only.
Chairperson:chanRoblesvirtualLawlibrary
So, actually, there is no full scientific certainty that it does not cause any harm pertaining to health?
Dr. Cario:chanRoblesvirtualLawlibrary
BT Talong per se, has hot been fully evaluated yet that is why it is undergoing trials. If reporting of
the BT toxin in BT Talong is CrylAcc, there are numerous studies that had been actually published on
relative safety of CrylAcc protein and it is actually considered as an additional protein and the various
reviews can be seen in the OECD Digest of risk assessments on CrylAcc protein. Alternatively, if you are
looking at the possibility of harm coming from the introduced protein as yet, we have not done a full blown
assessment of it as of the moment. But we look at the protein sequence and with a comparison of its
sequence with other sequences in the data basis to see if it is similar to this amino acid sequence of other
known toxins and, so far, I have actually ... in my affidavit, I have actually seen personally that it is not
closely related to any of the known toxins that are found into its system.
Chairperson:chanRoblesvirtualLawlibrary
So, in effect, we can not really say that BT Talong is perfectly safe for human consumption?
Dr. Cario:chanRoblesvirtualLawlibrary
Right now it is not meant to be consumed by human at this point. Let me just clarify one point. When any
GM material is supposed to be introduced for food and for feed and before it is actually utilized for life skill
production, it goes through several steps. The first step is actually the "lab", laboratory work and it is
actually tested in this clean-houses, rolled-out confined limited field test and then it goes to butyl abyssof
field tests where it is like generating more and more informations. We are still early on in this pathway, so
we are only in the confined field test and, at the moment, the thing is that it is still being tested. The focus
is on its efficacy after doing a preliminary assessment of the possible pathological and ecological effect,
and that is the pathway that has been recommended by so many academics as well as scientific
institutions as well. And, that has been a tract followed by almost all the genetically modified crops that is
being introduced in the market today, but at the moment BT Talong is not yet a commodity. It is not yet
being evaluated as a commodity.
Chairperson:chanRoblesvirtualLawlibrary
So, no one in this country has yet eaten this BT Talong?
Dr. Cario:chanRoblesvirtualLawlibrary
No, it has not been eaten, as far as I know. Even in India it has not been consumed by human beings
because it has not been introduced as a commodity.
Chairperson:chanRoblesvirtualLawlibrary
But what is the ultimate purpose of growing BT Talong? It is not for human consumption, of course?
Dr. Cario:chanRoblesvirtualLawlibrary
If it passes the safety assessments. That there is always a peak condition that, if it would not to be
evaluated in a step of the way much like to evaluate any new product that is coming into the market
evaluation, goes on a step-by-step and at least day-to-day basis.
Dr. Davies:chanRoblesvirtualLawlibrary
Your Honor, may I interject, may I suggest with your permission? I would just like to make a little bit of
explanation.
Chairperson:chanRoblesvirtualLawlibrary
Proceed.
Dr. Davies:chanRoblesvirtualLawlibrary
I would like to address "BT" as a compound which is distinct from a plain in "Talong". First of all, I think of
the name BT toxin is very fortunate. It is really a protein. A protein is an essential constituent of life. It is an
essential constituent of our food. In the human body, and in the body of other animals, this protein is
under the same as any other protein in food. It has no effect on the human body. This has been shown for
many, many years, knowing BT Talong but BT has been a constituent of "maize" in commercial production

for 16 years.
xxxx
Dr. Davies:chanRoblesvirtualLawlibrary
x x x So it has been in corn for 16 years after substantial trials. It has been consumed by Americans in corn
products and by any other people who in[g]est American maize corn products x x x. There is not a single
case of illness or toxicity or allergenicity that can be or that has been associated with this protein and,
therefore, any food containing this protein has been declared by authorities in all the countries that was
mentioned by my colleagues, including the European Union and the United States x x x to be as safe as
any food derived from the same plant species not containing this gene. I hope that explains a little bit
about what it is.
Chairperson:chanRoblesvirtualLawlibrary
Are you aware of a study, Dr. Davies, released on September 20 of this year, saying that Monsanto's
genetically modified corn is linked to cancer?
Dr. Davies:chanRoblesvirtualLawlibrary
Yes. Are you referring, your Honor, to a publication by a French Scientist named Gilles-Eric Seralini? I think
this is one of the publications by Seralini's group. Dr. Seralini's work has been refuted by International
committees of scientists...
xxxx
Dr. Chakraborty:chanRoblesvirtualLawlibrary
Your Honor, may I butt in? It is wrong that proteins can not be toxins. Think about the snake venoms. They
are poisons, so whether it is protein or not that is not the question. So proteins obviously venoms and
proteins and enzymes and they are poisons so protein can be a poison so that is now the point at all to be
considered. The second thing is, yeah, low level toxins long term in[g]estion of this BT toxin in human or in
any other animal have not been tested. So that is true so we do not know direct consumption of this,
because notice have been turned down, that is the objective fact. The third point is about the "American
Corn", and if I can give you such anecdotes, "American GM Corn" are not labelled, how do you know that?
What is its effect? What is its toxicity? And, obviously, there are more than a hundred of papers showing
and published in very good journals. I can give many references which have shown the detrimental effect
of BT Toxin.
xxxx
Chairperson:chanRoblesvirtualLawlibrary
But before having this BT talong scheduled and allowed for field testing, is it not proper that it should be
first determined whether this food product is really safe for eating or not?
Dr. Cario:chanRoblesvirtualLawlibrary
There is an initial assessment that is generally done and according to the Codex Alimentarius of the WHO,
the thing that you do at this early stage of development is to compare the sequence of the protein that is
being introduced with published sequence of allergens, as well as toxicants and toxins. So that has been
done. Then you have to look for instability under heat conditions because there is seldom do we heat grow
eggplants, so is it stable under heating. Is it stable in the presence of digestive juices? And, if the answer is
"yes", there is at least fair certainty, a fair assurance that it is likely to be safe but then you start thinking
of what other component not present in the product, does this. For example, any product that we consume
today has something that is bad for you, otherwise, you will not see it right now. Otherwise all the different
herbivores will be eating it up, right? It will be extinct if it does not have anything to protect itself and, so,
the thing is one, to quantify how much of that has changed when you lead the genetic modification. So
"Talong" has been known to have Solanine and glycoalkaloids whose level well have to quantify. We have
not done that yet. They have not submitted the data for that and this as secondary metabolize whose
relative concentration will change depending on the environment to which you actually place the system.
Dr. Chakraborty:chanRoblesvirtualLawlibrary
x x x In india, we have a very bad experience x x x in location field trial with the BT Cotton. You known
that BT Cotton was introduced in India through the back door black market entry. During the field trial,
some of those seeds were taken out and given to the farmers for commercial cultivation to black market.
Monsanto goes well, Monsanto's BT Cotton, like Monsanto, did not sue now apparently sue the company
and they compelled the government that farmers wanted those things and there was high ... how they
pressurized the government. Now, in case of BT cotton is one thing, but BT Eggplant is completely a
different thing. That is why [the] Supreme Court in India has taken a very strong stand and, now, the
parliamentary committee in India. The Supreme Court has also taken steps stand with the field trial. The
first thing in field trial we had to see that whether there is a definite need of this kind of intervention,

because the eggplant is a very common vegetable in this part of the world. There are so many hundreds of
varieties here, these are the origins of these varieties of this kind of vegetable. It is cheap. It is available
everyday. So why you go on changing if there is no crisis in cultivating the eggplants at present. Therefore,
when you give it to this patented seeds technology, its prices will increase, lot of restrictions had to be
deal. So, who will consume this high price eggplant. Many will be exported, that was why the proponents
are looking into it. But, basically, that is the thing that in case of BT Brinjal, neighbor partisan is being
given. There is a moratorium in India from the Supreme Court and from the government side on field trial
of BT Brinjal. Now, if x x x the BT Eggplant is being taken to the Philippines, we guess, to get in as a
bypass, and who will guarantee that it will not go to the farmers?
xxxx
Justice Antonio-Valenzuela:chanRoblesvirtualLawlibrary
And, I was wondering in the conduct of the tests, the field testing x x x what would be the effect of the
planting .... of the existence of the genetically modified organism, for example, on insects, on the soil, on
the air? And then I was thinking, does this have this particular protein that result[s] due to the genetic
modification? Is it ... how is it expelled, for example how does it go into the environment? Or, on the other
hand, how does it go inside and out of human system so that does it disintegrate or is it just there forever?
I am very curious, sir. You have to educate me.
Dr. Davies:chanRoblesvirtualLawlibrary
x x x Okay, the DNA is in every cell of the eggplant and, so, a very small amount to protein produced by
each cell will be this BT protein. It does not get into the environment in general. A very small amount
might be in the pollen or in the leaves that fall to the ground but it has been shown to be broken down in
the soil by organisms so it will not exist in the environment. The only way that it is going to get into
animals or insects is if they eat the fruit and this is what an insect that the "talong" fruit and shoot borer
will be trying to. But, if it eats it, it reacts with its intestine so that they become toxic to the caterpillar but
this is very specific to the digestive system of the caterpillar. It does not affect bees. It does not affect
animals. It does not affect humans.
xxxx
Dr. Davies:chanRoblesvirtualLawlibrary
At the scientific level, it gets changed by alkalinity of the insect gut and reacts with specific receptors of
the cells of the walls of the insect gut. But, this is very specific to the gut of these insects namely the
"Lepidoptera" and some "coleoptera" which are the butterflies and the beetles but it will only affect if they
try to eat the plant. Now, you are asking us if what is the effect on the environment. x x x I would like to
cite x x x a recent paper published in the journal "Nature" x x x the most prestigious scientific journal in
the world, x x x published in "Nature" in June this year and this is the result of a study of "insects"
in BT Cotton fields in China in 17 locations for 14 years of a long period study. And these scientists revolt
that they show a marked increase in the abundance of three types of generalist arthropod predators
(ladywings, lacewings and spiders) and a decrease in abundance of aphid pests associated with
widespread adoption of Bt cotton. And they are referring to China and they conclude that such crops, x x
x BT crops, can promote beneficial control services in agricultural landscapes. And, it also showed that
these effects extend beyond the field. So, essentially x x x they found that there were more insects than in
conventionally grown cotton and the insect diversity was greater surrounded than being detrimental to an
agriculture ecosystem such BTcotton falls beneficial.
Dr. Chakraborty:chanRoblesvirtualLawlibrary
May I interject, your Honor. Now he is citing one paper they are. But in "Nature," there was another news
article, "Battlefield". One stream ecologist in United States itself, in a university, she has studied the effect
of growing BT Corn in the field and what is the effect on the stream ecology, the west water, what is
happening to other insects, insects in which it is getting that BT toxin will not go. Yes, she has found
thatstream ecology...
xxxx
Dr. Chakraborty:chanRoblesvirtualLawlibrary
Why was it published in "Nature" when that stream ecologist from Loyola University Chicago in Illinois
published that paper, published that article in PNAS or Proceedings of the National Academy of Sciences, a
prestigious journal? Now, they have to desert her. She was abused, so her file was taken out. So people
started e-mailing, threatening her. So "Nature" has to publish that. How dirty the field has become so they
entitled it "Battelfield." If anybody produces any evidence that BT Toxin or GM Technology is doing any
harm to the environment then it will be battered by the entire English lobby so there is worst the situation.
But National Academy of Sciences in United States has taken a strong decision and, in last year, there were
six publications that published where strong evidences are being produced about the environmental and
ecological damage cause[d] by this technology. So, that is the case.
Dr. Davies:chanRoblesvirtualLawlibrary

Can I respond to that, your Honors?

Dr. Malayang:chanRoblesvirtualLawlibrary
I think Filipinos should be able to talk also here.
Chairperson:chanRoblesvirtualLawlibrary
Can we give a chance to Dr. Malayang?
Dr. Malayang:chanRoblesvirtualLawlibrary
x x x My concern is on the process and participants in vetting the safety of GM crops, not necessarily the
intricacies of the science involved in genetic modification per se which, I think our international friends,
would like to focus on. x x x
One, I am concerned with the fallibility of technology, x x x even if it is much founded on or produced from
the most robust sciences, a technology could fail to be as useful as it was intended or its use lead to an
[unintended harm to humans and the environment. This is so because science, by nature, as many
scientists will agree, is very probabilistic rather than absolutist. Many cases of common knowledge
illustrate this point. May I just refer, for the Court's notice for, First, the Nuclear Power Plants in Japan x x x.
The best science and the best technology did not necessarily translate to absolute safety.
Second example, the Union Carbide Plant in Bhopal, India. It was among the most advanced production ton
at its time, yet, we know what happened. x x x Union Carbide's [hurry] to set up a plant to take advantage
of a large pesticide market in India to help the country's farmers led to a massive and deadly safety failure.
The Third example is the green revolution, x x x involves, however, the wide [use] of synthetic chemicals
for fertilizer and pesticides that were [at] the time hailed as wonder technologies. Many scientists in the
world at that time argued for their wider use but they later turned out to harm people, soils and water.
They prove good then bad, so bad that scientists today are using their ill effects as justification for
adopting alternative technologies to get us out of the synthetic chemical regime in agriculture.
And finally, the most common example would be the unintended effects of medicine. x x x Medicines are
technologies intended to do good but, with even the best science and the vetting processes using rigid
safety and risk assessment methods, they still could cause side effects entirely undesired and many of
which can cause chronic or acute threats to human life. This includes the use of "DDT" that was used to
control lice among soldiers after the II World War which, after all, proved to be very bad.
x x x I am also concerned with the fragility, fragility of the Philippine environment as the place and context,
the particular place and context of the introduction of BT crops like BT talong. x x x the Philippines is
among the world's biologically rich countries. x x x So, many of our insects are not even fully known. We do
not know how they all behave to influence the transfer of genetic materials from plants to other plants. We
do not fully know what we do not know about the intricate interactions between plants and between
insects and other living things that define the universe of our healthful and balanced ecology. The universe
of our healthful and balanced ecology certainly go beyond specific crops. I am concerned that, absent a full
as against partial understanding of the intricate web of genetic flows and interactions among plants,
animals and other living things in our wet and tropical ecosystems, it will require extraordinary care to
tamper with any one element of this swirl of interrelationships. This is notwithstanding the seeming
preponderance of evidence of safety in other countries and environment that are certainly not the same as
ours. x x x we must be extra careful because the effects might be irreversible. Introducing a genetically
modified plant x x x could cause a string of changes across many plants that, like the green revolution or in
the case of medicine and the two other cases cited above, could turn out and only to be realized much
later to be harmful to humans and the environment more than they were intended to be useful. x x x let us
ensure that we adopt in the country a biosafety vetting protocol that is: (1) sensitive to our high
biodiversity this is a particular condition in the Philippines; and (2) tested for error levels that are
acceptable to or which can be tolerated by our people. My affidavit states a three-stage approach to this. x
x x the tests that we will be doing is a test process acceptable to all as well rather than merely concocted
or designed by just a few people x x x must be a product of wider citizens' participation and reflect both
scientific and traditional knowledge and cultural sensitivity of our people. It is in the NBF after all, x x
x introducing BT Talong in the Philippines must be decided on the grounds of both science and public
policy and public policy, in this case, must involve full public disclosure and participation in accepting both
the potential gains and possible pains of BT Talong. The stakes, both positive and negative, are so high
that I believe BT Talong would require more public scrutiny and wider democratic decision making beyond
the [realm] of science. x x x for the sake of our country and our rich biodiversity x x x prudence requires
that maximum efforts be exerted to ensure its safety beyond the parameters of science and into the
sphere of public policy. For to fail in doing so what might be highly anticipated to be beneficial may in some
twist of failure or precaution and prudence and failure for due diligence to establish the safety of Bt
Talong beyond reasonable doubt, the BT Talong may turn out to be harmful after all. This we certainly do
not want to do. I submit these views to the Court.
xxxx

Dr. Davies:chanRoblesvirtualLawlibrary
x x x another thing I would like to point out to the Court is, if you come into a market in the Philippines and
you see nice Talong, it has probably been treated with various insecticides. So, there has been insecticide
spray on your tips in your crops which are going to be harm on your farmers, your farmer's children, the
insect populations and also dangerous to the consumers as well. By contrast, Bt Talong, if it is adopted,
the BT has been shown to be beneficial to the insects and the environment and also has been shown not to
be toxic in food. Therefore, we are changing a highly toxic chemical application for a much more benign
modern technique that is beneficial to the environment and beneficial to the consumers. That is my
comment with the views just made by my Filipino colleagues, your Honors.
Dr. Malayang:chanRoblesvirtualLawlibrary
x x x You know, in ecology and, I am sure you are aware of this, an expansion of anyone population or a
reduction of that population it would still be both not beneficial to the healthful and balanced ecological
health of the ecosystem. So to say that because the population of insects are exploded and the diversity of
insects exploded as a result of this particular intervention is not necessarily good. That is my first point.
The second one, you mentioned x x x the "talong" is laden with pesticide. The same pesticide were
advised by scientists from the USAID before for us to use in this country because this is how to expand our
production of food. This was part of the green revolution, the systemic use of pesticides and fertilizer. Now,
of course, they were misused, I can guarantee that but, again, if that be the case, in the case of pesticide
why can it not be in the case of BT that it can also be misused? x x x we are talking here not of the science
or of the technology but on the policy aspect of the adoption of the technology. As I said, I am talking
about the bakery not of a baked-bread.
Dr. Saturnina Halos:chanRoblesvirtualLawlibrary
Well, the use of pesticide in the eggplant, right now, is very much abused. x x x In terms of the use of Bt
Talong, then, that kind of misuse is not going to happen x x x. Now, in the Philippines, we have a very strict
highly monitored field testing and I think Dr. Malayang knows about that because he was one of those who
prepared the guidelines for the field testing. So that is not going to happen, it is a very strict regulatory
system. We are known for that, actually, and...
xxxx
Dr. Saturnina Halos:chanRoblesvirtualLawlibrary
No, no. It does not happen because we have a risk management plan x x x.
xxxx
Dr. Halos:chanRoblesvirtualLawlibrary
x x x As far as do we know what is happening after we have given approval, yes, we are monitoring. We
are monitoring as far as BT corn is concerned. We are monitoring, continuously monitoring, not only for the
beneficial insects but also the effects that is continuing, we are also continuing to monitor the weeds,
weed population. In weed we decide to spray...
Dr. Malayang:chanRoblesvirtualLawlibrary
And why is this, ma'am, why are we monitoring? Because they could be harmful?
Dr. Halos:chanRoblesvirtualLawlibrary
No we have to know what is happening.
Dr. Malayang:chanRoblesvirtualLawlibrary
Yes, why? Because if you are sure that they are safe, if you are sure that they are safe, why monitor?
Dr. Halos:chanRoblesvirtualLawlibrary
Well, we are going to give you the data for that because you keep on asking, you know, you asked for a
long term and we are going to give you that complete data.
xxxx
Dr. Medina:chanRoblesvirtualLawlibrary
I would like to raise several issues because I feel they are misleading sometimes. Dr. Davies mentioned
that the BT protein is a protein, therefore, it is safe. Are you sure that all proteins are safe, Dr. Davies? Are
you aware of anti-nutrients and allergens and other kinds of protein x x x it is a misleading generalization.
Secondly, I would like to say also that, when you say that BT crops is beneficial to insect population but,
how about humans? But, let me tell and inform the Honorable Justices also that, in agriculture, there can

be, the pests are there to reduce the yield. There are also diseases so, that this Bt is only controlling one
kind of pest and, in my monitoring of BT corn as an example to this 2 years after the commercialization in
2003, at first planting in 2003, the corn is attacked by about a dozen insect pests and six major diseases.
The Bt corn was attacked a "stem rot", a fungal disease. And, in this case in eggplant, there are many
fungal diseases, "phomopsis" x x x So in that case it is not field safe that you will not be using pesticide
anymore with BT eggplant. When you use the BTeggplant, assuming that there is no more insect pests x x
x There are many other methods of control and, therefore, do not assume that you do not use pesticide
therefore, BT is the only solution. That is also a risky and wrong generalization or statement, x x x Dr.
Halos x x x says that field tests are safe. I intend to disagree with that. Safe to what? Especially to
contamination. If I may use this picture of the field testing of the Bt eggplant x x x it was encircled with
cyclone wire with a diameter of something like approximately 10 cm. by 7 cm. hole. While bees that can
pollinate that, the size is about 1 cm. in length and .5 cm. in diameter of the insect. The bees and, in that
case, they can easily get in and get out and when they settle into the flowers and snip nectars and the fall
of the pollen then they can bring out the pollen to contaminate outside that. In fact, even assuming that
the fence is very small in size of the mess, the holes, still the insects can fly above that fence because the
fence is only about 5 feet in height. So, in that case it is not safe. Some arguments say that "well the
pollen will be dead" but, according to this technical manual of the Training Workshop On Data Collection for
Researchers And Collaborators of Multi-Location Trials of Fruit and Shoot Borers Resistant Eggplant, that is
the Bt Eggplant produced by the Institute of Plant Breeding in UPLB who is one of the main researchers the
datas, here say according to "Rasco", cited by Dr. Narciso, is that the pollen can live 8 to 10 days pollenby
ability at 20 to 22 degrees centigrade, with a relative humidity of 50 to 55. x x x Meaning to say,
that pollen can survive. This can fly as fast as something like 60 kilometers per hours so it just take may be
3 minutes and it can travel 4 kilometers and 4 kilometers is the effective flying distance of a bee in their
normal foraging.
xxxx
Dr. Medina:chanRoblesvirtualLawlibrary
x x x There is no data on the contamination so how come they argue, how can they conclude that it is safe
when they have not monitored any potential pollen flow by insect mitigated or insect mediated flow
pollen? So, in that case, the conclusion or the statement is really beyond what their data may be is if their
data is about safety.
xxxx
Dr. Ebora:chanRoblesvirtualLawlibrary
xxxx
x x x I hope that we will be able to look at the experimental design and you will see that all the things are
properly addressed, our risk assessment was done step by step, x x x I beg to disagree with my friend Dr.
Medina because it is becoming ... we are confusing 2 things. We are not referring to contained trial. We are
referring to confined field trial and in the design of this particular experiment, you have yourBT eggplant,
your non-BT eggplant so that you can compare the performance with the 2 crops. And, on design, you
have 5 rows of plant BTeggplants that will serve as a pollen trap. When we say pollen trap is that it just
open the pollen from the transgenic. It is going to be trapped by those plants, 5 rows, and then, after that,
you have a space of 200 meters surrounding the field which is the isolation distance. That means no
eggplant should be present in that particular distance because that is the isolation distance that is found
to be safe, x x x we know that Bt protein is very specific x x x effective only against caterpillar x x x if they
are eaten by other organism, they are not affected because it is very specific. The gut of the larva is very
alkaline while the gut of other insects is likely acidic and, in that case, it does not have any harmful effect,
x x x So another thing is we are saying that it seems to be ridiculous that you are saying that honeybee is
going to fly from the fence and the size were even indicated. I would like to indicate that, that is not the
purpose of the fence. It is not to contain the insects. It is to prevent vandalism which is quite,
unfortunately, being done by other groups who are against the technology. x x x We should be able to have
our own space, our own time, considering the given regulation. Follow them. But our experimentation not
be destroyed because it is only then that we will be able to get the valuable data that is needed for an
informed decision. Without that we will not be able to proceed and I hope we can discuss this based on the
merits of the field trial, not from any other concern because the writ of kalikasan is about the effect of field
trial in the environment.
Dr. Medina:chanRoblesvirtualLawlibrary
Mr. Justice, can I give this immediate counteract to the one statement of Dr. [Ebora]? He said that the
"CrylAcc" is specific to caterpillars and, in fact, only some kinds of caterpillar, some species, if you can
read by chemical and by physical research communications this is Volume 271, pages 54-58, authored by
Vasquez Pardonnet, published in 2000, publication under letter (b), "CrylAcc protoxin" binds to the
mucosal surface of the mouse small intestine. Small intestine ay mammal po iyan so, meaning, it is a
proxy animal for safety [testing] to humans because we are also mammals so, the mice are usually the
mammals 12 years ago, the data has been already there that there is binding site, therefore it is not only
specific to insects but also to mammals. x x x he is saying that, by working on the natural BT is the same
as the transformed BT it is not true because the natural BT has 1155 "base pairs" of nucleic acids. And the
transformed GM Crop contains a fragment of that BT gene which is only half of that. And the mechanism,

by the way, x x x the natural toxin is broken into smaller pieces inside the intestine of the insects because
it is alkaline in terms of its system "ph" and for humans acidic. So it does not work. But, because the
transformed BT is already half, almost half of the normal or natural[ly] occurring BT protein, it is already
activated and, in that case, that is the reason why there is a test and immediate effect to non-insect,
meaning, to mammal, so that is the explanation of scientist doing studies on that aspect.
x x xx
Dr. Chakraborty:chanRoblesvirtualLawlibrary
The scientists have 3 problems: One, the sparks, we have a tunnel vision; the second, fear vision; x x x I
will give some example. Yes, BTtoxin, was it really good biological control agent? But it is a completely
different gene when you produce it into an edible plant inside genetically. So, these are 2 different things.
What will happen? We are scared that the efficacy, the use of BT toxin as a spray, as biological control
agent, will be vanished because now there will be resistance against those in BT toxin, x x x resistance is
coming very quickly, just like antibiotic resistance, x x x The second thing, I have asked many plant
biologists this simple question, simple honest question. Do you know any plant that can kill a bee or a
moth? No! There is no way, why? Because those are the "pollinators". Plant never kills a bee or a moth that
goes against nature, x x x So, nature, for thousands of years, farmers help select or adopt edible non-toxic
plants. And, now, with the high science we are converting them, non-toxic edible plant into a toxic plant.
So not only toxic for the human, for the root microorganisms, x x x Those eggplants are not only for
humans to consume. So human effect, we do not know but what will be the effect? Who will mind the
effect? Is it the animal which goes through it? x x x in India, x x x farmers x x x while growing BT cotton x x
x the leaves and other they use to attract animals to eat. x x x they found suddenly one thing that
the BT cotton plants are not touched by those buffalos, those cows, those [boars], but they can distinguish
which is BT and non-BT. x x x and when their animals started dying in some cases, they always blame, it is
this animal which has eaten that BT? x x x these are [going] against nature. Only few edible seed plants
are there and we are converting one safest plant into a poisonous and toxic plant and what is the effect on
the root microorganisms on the degrading animals and other? We do not know. That hard thing is the
tunnel vision, the confined field trial, x x x why implement this confined field trial? Is this safe? Why do
they have to do this x x x these things do good for a normal hybrid that is something but for the gene
concept we cannot follow the same separation rules, same rules? So those are used, those separation
distincts, those parameters are used not for the gene. So, which is the safe field trial protocol for the gene
plants? We do not know. So there goes against [the] writ of kalikasan.
xxxx
Justice Antonio-Valenzuela:chanRoblesvirtualLawlibrary
How much is the increase in crop yield? x x x
Dr. Halos:chanRoblesvirtualLawlibrary
x x x The average increase yield is about 24% and that is for corn. And this data is actually taken by our
own Filipino scientists, Dr. Lluroge and Dr. Gonzales.
xxxx
Dr. Malayang:chanRoblesvirtualLawlibrary
x x x my question is for Ma'am Nina. I have not been up to date lately on the production of corn so, you
mean to say that corn production in the country has gone up and, because of that, you are saying that
24% and the income of farmers had gone up as well? Do you mean to say that the price of com had also
gone up as a result of the increase in the volume of com production in the Philippines?
Dr. Halos:chanRoblesvirtualLawlibrary
Well, the price is dictated by the market.
Dr.Malayang:chanRoblesvirtualLawlibrary
That is precisely the point.
Dr. Halos:chanRoblesvirtualLawlibrary
Yes.
Dr. Malayang:chanRoblesvirtualLawlibrary
x x x I am just bringing, hopefully to the attention of the Court, that, when you talk of a technology such as
GM Com or GM Talong affecting market there is also not only the regulatory but economic regime that is
attendant to it that makes adjustments. So it may not be harmful to humans because we will not come out
when we eat it but it might be harmful to the economy of a particular agricultural crop. x x x

xxxx
Dr. Ebora:chanRoblesvirtualLawlibrary
x x x there are a lot of local studies being conducted now by entomologists from [UPLB] and those are
independent studies. And, precisely, this is to determine the effect on natural enemies and the different
insects x x x and some of those are already available, x x x you will be able to protect the environment
only if you know how to have a proper information in making the decision. So, again, I am saying that, in
field trial, you will be generating a lot of information that you will be able to use in making a wise decision
and informed decision.
x x x I would like to correct the impression lodged by the statement of Dr. Chakraborty regarding
butterflies and moths. Because they are not affected by BT because they are adult insects. The only one
that is affected are actually the larva, not even the pupa. So, we would like that to be clear because it
might create confusion.
The other thing in resistance, x x x even conventionally bred plant [loses] resistance after sometime and
that is the reason why we have a continuous breeding program. So, it is a natural mechanism by an
organism as mode of ad[a]potation. x x x are you telling us that we are going to stop our breeding work
because, anyway, they are going to develop resistance. I think it is a wrong message x x x.
The other thing is in terms of the study cited by Dr. Medina regarding the "binding." In toxicology, you can
have the effect if you have, for example, the insects, you have a receptor. The toxin will bind into the
receptor. Toxin has to fall and then the toxin has re-insert into the membrane. If you eliminate one of those
steps you do not have any toxicity. So, that means binding by itself will not be toxicity. It is a wrong
impression that, since you have binding, there will be toxicity. It is simply wrong because, the actuality that
it should bind, it should fall then, it should insert, and it is a very common x x x. To say that binding is
equivalent to toxicity is simply not true.
The other one is natural BT toxin and activated toxin. When you were saying protoxin, protoxin is basically
the entire crystal protein. If it is already inside the gut of the insect it has to be clipped by
the purchase coming from the gut and you have it activated and you have the toxin. So what you have in
plant is already the toxin since the anther and the toxin, and the toxin in microorganisms, the anther
which are already clipped by a purchase are the same. So, to say that they are different is actually wrong.
You are comparing protoxin and toxin.
x x x regarding the protein, x x x do you know a lot of proteins of another characteristics and that is why
you have to characterize them and you have to separate the protein that are causing problem and protein
that are not causing problem. That is why you have allergen and, as explained by Dr. Cario, you have to
check the sequence. x x x
xxxx
Dr. Chakraborty:chanRoblesvirtualLawlibrary
x x x the field trial wanted to basically go to the protocol. This is the efficacy, the efficiency of the
production not that much into the safety. You have to look into it carefully that how much will get this
efficacy, not the safety to that extent x x x. Second point x x x there is this already mentioned that
European Union there is no consensus, x x x they have published and submitted the systemic list of
genetically modified crop need for new approach in risk assessment. So that is what is needed. There is
another article, how does scientific risk assessment of GM crop fit within wider risk analysis, x x x This is
genetic engineering. The production process is very precise in selecting the inserted gene but not in its
enhancement, x x x they are never looking into it. The second thing, they do not look into that from the
laboratory condition to what is the real life situation. They do not take that into account x x x so this
assessment protocol has to be modified or changed, x x x in the IAASTD or International Assessment of
Agricultural Knowledge, Science and Technology for Development. There is a supreme body, so many
nations, so many experts, scientists x x x. Only sustainable agricultural practice and that is the only
alternative. This GM technology is not going to help them x x x In my country also, when the BT toxin
evaluation was there, everybody was telling that this is pro-poor, this is scale neutral so, everybody will be
benefitted by that. So, we started questioning, x x x "What are the actual economic analysis indeed? Just
show me". Then, they come up with an answer. Scale neutral means that even small farmers initially
wantedBT cotton and big farmers also wanted BT cotton. They are partisans. It is not the economic benefit
because, economically, it is not going to be beneficial so it is very much scale dependent its benefit. So,
only the big farmers, large farmers and x x x the vegetable field you never can give separation. Chances
you never can give refuge. The 1/5 of the land given for growing pests so that you cannot do. So it cannot
help technology. They have developed this technology for partisan large scale farming to completely
automated for BT technology where no label will be there. But the failed experiments, the contracts whose
patent will be over within 2-3 years, they are testing them in our country. So that is the bottom line.
xxxx
Chairperson:chanRoblesvirtualLawlibrary
Let us put, probably, a close to this hot tub proceeding now.

The issue that the Court is really interested to resolve is whether or not the conduct of the field trial
of BT Talong by the respondents has violated or has threatened to violate the right of the people to a
balanced and healthful ecology. Is there absolute certainty that it has not so violated such right. Because
that is the requirement for applying or not applying the precautionary principle, x x x
Dr. Cario:chanRoblesvirtualLawlibrary
Yes. The answer to that is we have not violated, you know, the right of the people...
Chairperson:chanRoblesvirtualLawlibrary
But there is no absolute certainty?
Dr. Cario:chanRoblesvirtualLawlibrary
Well, quite certain, your Honor, because we have placed all the necessary measures and they did not show
us, you know, there is no evidence of harm that has been shown to this Court. There is no evidence at all.
Chairperson:chanRoblesvirtualLawlibrary
That is your opinion.95ChanRoblesVirtualawlibrary
As shown by the foregoing, the hot tub hearing has not yielded any consensus on the points of contention
between the expert witnesses, i.e., the safety ofBt talong to humans and the environment. Evidently, their
opinions are based on contrasting findings in hundreds of scientific studies conducted from the
time Bt technology was deployed in crop farming. These divergent views of local scientists reflect the
continuing international debate on GMOs and the varying degrees of acceptance of GM technology by
states especially the developed countries (USA, EU, Japan, China, Australia, etc.).
Before proceeding to the current state of global GMO research, we briefly address the strong objection of
petitioners to the CA's reliance on the research conducted by Prof. Seralini, the French scientist whose
study was published in September 2012 in Food and Chemical Toxicology, which was criticized as a
"controversial feeding study." Seralini studied rats consuming Monsanto's Roundup Ready treated corn for
two years (using the same kind of rats prone to tumors used by Monsanto in obtaining original approval for
its product and the same methodologies, but did it for 2 years which is longer than the 90-day experiment
period done by Monsanto). The rats formed massive cancerous tumors. All three test groups of rats, with
10 rats in each group, died more frequently, suffered from liver problems, and had a pronounced number
of tumors specifically with grotesque mammary and testicular tumors. 96
Seralini's findings created an uproar and the study was expunged from the publication in November 2013
even though the Editor-in-Chief found no evidence of fraud or intentional misrepresentation of the data.
Seralini stood by his work and further conducted similar laboratory experiments. Critics faulted the
experimental method, saying the number of rats studied was too small and their diet was skewed when
compared with their natural food intake. But over 300 scientists condemned the retraction, they said that
the retraction lacked scientific integrity and requested to reinstate the study. Last June 2014, Seralini's
controversial study was republished and has passed a third peer review arranged by the journal that is
republishing the study, Environmental Sciences Europe. The republished version contains extra material
addressing criticisms of the original publication and the raw data underlying the study's findings, and
accompanied by a separate commentary by Prof. Seralini's team describing the lobbying efforts of GMO
crop supporters to force the editor of the Food and Chemical Toxicology to retract the original publication.97
The aforesaid incident serves to underscore the crucial role of scientists in providing relevant information
for effective regulation of GMOs. There can be no argument that "[s]ince scientific advice plays a key role
in GMO regulations, scientists have a responsibility to address and communicate uncertainty to policy
makers and the public."98
GMOs: The Global Debate

The uncertainties generated by conflicting scientific findings or limited research is not diminished by
extensive use at present of GM technology in agriculture. The global area of GM crops has reached over
175 million hectares in 2013, more than a hundredfold increase from 1.7 million hectares in
1996.99 However, the worldwide debate on safety issues involving GM foods continues.
It has been pointed out that the crux of the controversy surrounding GMOs lies in the very nature of the
technology itself. The process of combining inter-species genes, which is called recombinant DNA
technology, does not have the checks and balances that are imposed by nature in traditional breeding.
Because of this there is a risk of genetic instability. This means that no one can make any accurate
predictions about the long-term effects of GMOs on human beings and the environment. Extensive testing
in this regard is either very expensive or impractical, and there is still a great deal about the process that
scientists do not understand.100

The basic concepts for the safety assessment of foods derived from GMOs have been developed in close
collaboration under the auspices of the Organization for Economic Co-operation and Development (OECD)
and the United Nations World Health Organization (WHO) and Food and Agricultural Organization (FAO).
The OECD's group of experts on biosafety recommended conducting the safety assessment of a GM food
on case-by-case basis through comparison to an existing food with a long history of safe use. Thus, the
concept of substantial equivalence was developed that is widely used by national and international
agencies, including the US Food and Drug Administration (FDA), the WHO, OECD and the FAO. 101
"Substantial equivalence embodies the concept that if a new food or food component is found to be
substantially equivalent to an existing food or food component, it can be treated in the same manner with
respect to safety (i.e., the food or food component can be concluded to be as safe as the conventional food
or food component)."102 The safety assessment of a genetically modified food is directed by the results of a
comparison between the genetically modified food and its conventional counterpart. It follows a stepwise
process aided by a series of structured questions. Factors taken into account in the safety assessment
include:
identity;
source;
composition;
effects of processing/cooking;
transformation process;
the recombinant DNA (e.g. stability of insertion, potential for gene transfer);
protein expression product of the novel DNA:
effects on function;
potential toxicity;
potential allergenicity;
possible secondary effects from gene expression or the disruption of the host DNA or metabolic
pathways, including composition of critical macro, micro-nutrients, anti-nutrients, endogenous toxicants,
allergens, and physiologically active substances; and,
potential intake and dietary impact of the introduction of the genetically modified
food.103ChanRoblesVirtualawlibrary
The above factors are particularly pertinent to the assessment of foods derived from genetically modified
plants.104 However, the concept of substantial equivalence as the starting point of risk assessment was
criticized for being "unscientific and arbitrary" and "intentionally vague and ill-defined to be as flexible,
malleable, and open to interpretation as possible." It is likewise argued that "comparisons are designed to
conceal significant changes resulting from genetic modifications," "the principle is weak and misleading
even when it does not apply, effectively giving producers carte blanche", and that there is insufficiency of
background information for assessing substantial equivalence. A paper presented at a WHO workshop
pointed out that the main difficulty associated with the biosafety assessment of transgenic crops is the
unpredictable nature of transformation. This unpredictability raises the concern that transgenic plants will
behave in an inconsistent manner when grown commercially. 105
The method of testing GM foods was further described as inadequate, as currently the testing procedures
consist almost exclusively of specific chemical and biochemical analytical procedures designed to
quantitate a specific nutrient or a specific toxin or allergen. It was noted that in actual practice, the
investigator compares only selected characteristics of the genetically engineered food to those of its nongenetically engineered counterpart. These testing schemes are viewed as completely incapable of
detecting unsuspected or unanticipated health risks that are generated by the process of genetic
engineering itself. Hence, clinical tests are recommended because only such tests have the broad
specificity and relevance to human physiology needed to detect the wide range of allergens and toxins
that might result from unexpected side-effects of the genetic engineering process. 106
In another review article, it was pointed out that since a genetic modification is aimed at introducing new
traits into organisms, the result will always be a different composition of genes and proteins. The most
reasonable interpretation therefore is that a food derived from a GMO is considered substantially
equivalent to its traditional counterpart if the genetic modification has not resulted in intended or
unintended alterations in the composition of relevant nutrients and inherent toxicants of the organism, and
that the new genes and proteins have no adverse impact on the dietary value of the food and do not
therefore pose any harm to the consumer or the environment. It was thus concluded that establishing
substantial equivalence is not a safety assessment in itself, but is a pragmatic tool to analyze the safety of
a new food, and hence in the testing of new foods, the latest scientific methods have to be used. All

conceivable efforts to protect consumers from health risks should thus be made, and at the same time,
consumers should be adequately informed about the real extent of risks and hazards. 107
The GMO global debate has so intensified that each side has accused the other camp of mounting "paid
advocacy" and criticizing studies adverse to their respective positions as flawed or unscientific. Both the
agri-business industry, and groups opposed to GMOs including the organic farming industry, had utilized
enormous resources and funds for lobbying and media campaigns locally and internationally.
What appears to be highlighted in the promotion of GM crop production is the marked reduction in the use
of harmful chemical pesticides.108 The resulting increase in crop yields grown on relatively small parcels of
land is also regarded as a solution to the problem of feeding a fast growing world population. Proponents of
GM biotechnology insist that GM foods are safe to humans and the environment based on scientific
studies. On the other hand, anti-GM activists disseminate adverse results of recent studies confirming the
health and environmental hazards of genetically engineered crop farming. Also, some countries have
maintained a firm stance against genetically engineered crops or GM foods, such as France and Austria.
Over the years, however, accumulated evidence of the dangers of GMOs, as well as unrealized socioeconomic benefits, has been increasingly recognized by the scientific community.
That GE farming increases crop yield has been debunked by new studies proving the contrary. In the
article, "GM Crops Do Not Increase Yield Potential," the Institute for Responsible Technology cited reports
from actual field studies in different countries revealing downward figures for Bt crops, as summarized
below:
Bt corn took longer to reach maturity and produced up to 12% lower yields than non-GM counterparts.
Evidence for the "yield drag" of Roundup Ready soybeans has been known for over a decade - with the
disruptive effect of the GM transformation process accounting for approximately half the drop in yield.
Based on a comprehensive evaluation of yield since the introduction of commercial GM crops, the
International Assessment of Agricultural Knowledge, Science and Technology (IAASTD) noted that GM crop
yields were "highly variable" and in some cases, "yields declined".
The Union of Concerned Scientists' 2009 report Failure to Yield, based on published peer-reviewed
studies conducted by academic scientists using adequate controls, concluded that genetically engineered
herbicide tolerant soybeans and herbicide-tolerant corn has not increased yields while insect-resistant corn
has only marginally improved yields. Traditional breeding outperforms genetic engineering hands down.
In developing countries, crop failure can have severe consequences as illustrated in India, where a large
number of cotton farmers, unable to pay back high interest loans, have committed suicide. Several
investigations have implicated the unreliable performance of Bt cotton as a major contributor.
Bt cotton was overrun by pests in Indonesia and China. In South Africa, farmers faced pest problems and
no increase in yield. The 100,000 hectares planted in 1998 dropped 80% to 22,500 by 2002. As of 2004,
85% of the original Bt cotton farmers had given up while those remaining had to be subsidized by the
government. Similarly in the US, Bt cotton yields are not necessarily consistent or more
profitable.109ChanRoblesVirtualawlibrary
GM technology is thus seen as a failure in terms of addressing food security; rather, it supports corporate
control and impedes common persons' access to adequate food. The root cause of hunger is not a lack of
food, GM critics say, but a lack of access to food. The poor lack money to buy food and lack of land on
which to grow it. It is essential to follow sustainable traditional farming practices that keeps food
production in the hands of small-scale farmers, thereby reducing corporate control. 110
As regards the existing uncertainties of potential long-term effects of the release into the environment of
GMOs, the BEETLE (Biological and Ecological Evaluation towards Long-term Effects) study of 2009, 111 made
for the European Commission, analyzed more than 700 scientific publications from all over the world about
GMOs and their potential effects on environment including biodiversity, and received contributions to
online surveys from 100 to 167 invited environmental experts. This study declared the following
uncertainties:
increased fitness of GM plants;
outbreeding depression after hybridization with wild relatives;
outcrossing between related species and the fate of a transferred GM trait;
altered flower phenology;
altered fecundity, increasing seed (gene) flow;
increased frequency of horizontal gene flow;
resistance development of pests;

 effects on non-target organisms;

effects on non-target organisms due to altered nutritional composition of the GM plant;
effects on non-target organisms due to accumulation of toxic compounds;
effects on rhizo sphere microbiota;
effects on symbiotic non-target organisms;
changes in soil functions caused by GM traits;
effects on biological control;
altered use of agrochemicals;
indirect changes in susceptibility of crops against pathogens;
adverse effects on agro-biodiversity;
indirect effects in fertilizer use;
potential changes in landscape structure;
increased production of greenhouse gases;
increased mineral nutrient erosion and fertilizer leaching;
altered chemical attributes of soil fraction;
emerging of stacked events;
the necessity of regional differentiation of risk assessments. 112ChanRoblesVirtualawlibrary
A critical observation was made on the argument that there is not enough evidence to reject the
hypothesis that GMO and GM food is safe. The fact emphasized was that experiments designed to clarify
potential adverse effects on health or the environment are nearly absent in peer-reviewed journals.
Scientific uncertainty, omitted research areas, and lack of basic knowledge crucial to risk assessments
have become apparent. The present uncertainty warrants further research and it has been demonstrated
that there is a risk of bias relying on hypotheses that dominate mainstream science. There is therefore a
need for independent research that is without prejudice and unbiased by economic and professional
interests.113 In another article it was noted that the clinical trials carried out to ensure that negative
externalities do not affect humans and the environment are conducted by the same private firms that
created the products, raising conflict of interest concerns.114
While existing literature on health effects of GM foods indicates that they are generally safe, and similar
conclusions have been drawn by government agencies and scientific organizations such as FAO/WHO and
Society of Toxicology, a growing number of independent scientists have spoken strongly against such
generalizations from limited research mostly sponsored by biotech companies.
In 1999, the Open Letter from World Scientists to All Governments signed by 815 scientists from 82
countries expressed that they are extremely concerned about the hazards of GMOs to biodiversity, food
safety, human and animal health, and demanded a moratorium on environmental releases in accordance
with the precautionary principle. They are opposed to GM crops that will intensify corporate monopoly,
exacerbate inequality and prevent the essential shift to sustainable agriculture that can provide food
security and health around the world, and called a ban on patents of life forms and living processes which
threaten food security, sanction biopiracy of indigenous knowledge and genetic resources and violate basic
human rights and dignity.115
On May 10, 2003, dozens of prominent scientists from various disciplines banded together as an
Independent Science Panel on GM at a public conference in London. On June 15, 2003, they released a
Final Report116 as their contribution to the National GM Debate in UK. In a summary 117 of the final report,
these scientists declared the following:
The Case for a GM-Free Sustainable World - A Summary
Why GM-Free?
1. GM crops failed to deliver promised benefits
o No increase in yields or significant reduction in herbicide and pesticide use

o United States lost an estimated $12 billion over GM crops amid worldwide rejection
o Massive crop failures of up to 100% reported in India
o High risk future for agbiotech: "Monsanto could be another disaster waiting to happen for investors"
2. GM crops posing escalating problems on the farm
o Transgenic lines unstable: "most cases of transgene inactivation never reach the literature"
o Triple herbicide-tolerant volunteers and weeds emerged in North America
o Glyphosate-tolerant weeds plague GM cotton and soya fields, atrazine back in use
o Bt biopesticide traits threatening to create superweeds and bt-resistant pests
3. Extensive transgenic contamination unavoidable
o Extensive transgenic contamination found in maize landraces in remote regions of Mexico
o 32 out of 33 commercial seed stocks found contaminated in Canada
o Pollen remains airborne for hours, and a 35 mile per hour wind speed is unexceptional
o There can be no co-existence of GM and non-GM crops
4. GM crops not safe
o GM crops have not been proven safe: regulation was fatally flawed from the start
o The principle of 'substantial equivalence', vague and ill defined, gave companies complete licence in
claiming GM products 'substantially equivalent' to non-GM, and hence 'safe'
5. GM food raises serious safety concerns
o Despite the paucity of credible studies, existing findings raise serious safety concerns
o 'Growth-factor-like' effects in the stomach and small intestine of young rats were attributed to the
transgenic process or the transgenic construct, and may hence be general to all GM food
6. Dangerous gene products are incorporated into food crops
o Bt proteins, incorporated into 25% of all GM crops worldwide, are harmful to many non-target insects,
and some are potent immunogens and allergens for humans and other mammals
o Food crops are increasingly used to produce pharmaceuticals and drugs, including cytokines known to
suppress the immune system, or linked to dementia, neurotoxicity and mood and cognitive side effects;
vaccines and viral sequences such as the 'spike' protein gene of the pig coronavirus, in the same family as
the SARS virus linked to the current epidemic; and glycoprotein gene gpl20 of the AIDS virus that could
interfere with the immune system and recombine with viruses and bacteria to generate new and
unpredictable pathogens.
7. Terminator crops spread male sterility
o Crops engineered with 'suicide' genes for male sterility, promoted as a means of preventing the spread
of transgenes, actually spread both male sterility and herbicide tolerance traits via pollen.
8. Broad-spectrum herbicides highly toxic to humans and other species
o Glufosinate ammonium and glyphosate, used with herbicide tolerant GM crops that currently account for
75% of all GM crops worldwide, are both systemic metabolic poisons
o Glufosinate ammonium is linked to neurological, respiratory, gastrointestinal and haematological
toxicities, and birth defects in humans and mammals; also toxic to butterflies and a number of beneficial
insects, to larvae of clams and oysters,Daphnia and some freshwater fish, especially the rainbow trout; it
inhibits beneficial soil bacteria and fungi, especially those that fix nitrogen.
o Glyphosate is the most frequent cause of complaints and poisoning in the UK, and disturbances to many
body functions have been reported after exposures at normal use levels; glyphosate exposure nearly
doubled the risk of late spontaneous abortion, and children born to users of glyphosate had elevated
neurobehavioral defects; glyphosate retards development of the foetal skeleton in laboratory rats, inhibits
the synthesis of steroids, and is genotoxic in mammals, fish and frogs; field dose exposure of earthworms
caused at least 50 percent mortality and significant intestinal damage among surviving worms; Roundup
(Monsanto's formulation of glyphosate) caused cell division dysfunction that may be linked to human

cancers.
9. Genetic engineering creates super-viruses
o The most insidious dangers of genetic engineering are inherent to the process; it greatly enhances the
scope and probability of horizontal gene transfer and recombination, the main route to creating viruses
and bacteria that cause disease epidemics.
o Newer techniques, such as DNA shuffling, allow geneticists to create in a matter of minutes in the
laboratory millions of recombinant viruses that have never existed in billions of years of evolution
o Disease-causing viruses and bacteria and their genetic material are the predominant materials and tools
of genetic engineering, as much as for the intentional creation of bio-weapons.
10. Transgenic DNA in food taken up by bacteria in human gut
o Transgenic DNA from plants has been taken up by bacteria both in the soil and in the gut of human
volunteers; antibiotic resistance marker genes can spread from transgenic food to pathogenic bacteria,
making infections very difficult to treat.
11. Transgenic DNA and cancer
o Transgenic DNA known to survive digestion in the gut and to jump into the genome of mammalian cells,
raising the possibility for triggering cancer
o Feeding GM products such as maize to animals may carry risks, not just for the animals but also for
human beings consuming the animal products
12. CaMV 35S promoter increases horizontal gene transfer
o Evidence suggests that transgenic constructs with the CaMV 35S promoter could be especially unstable
and prone to horizontal gene transfer and recombination, with all the attendant hazards: gene mutations
due to random insertion, cancer, re-activation of dormant viruses and generation of new viruses.
13. A history of misrepresentation and suppression of scientific evidence
o There has been a history of misrepresentation and suppression of scientific evidence, especially on
horizontal gene transfer. Key experiments failed to be performed, or were performed badly and then
misrepresented. Many experiments were not followed up, including investigations on whether the CaMV
35S promoter is responsible for the 'growth-factor-like' effects observed in young rats fed GM potatoes.
GM crops have failed to deliver the promised benefits and are posing escalating problems on
the farm. Transgenic contamination is now widely acknowledged to be unavoidable, and hence
there can be no co-existence of GM and non-GM agriculture. Most important of all, GM crops
have not been proven safe. On the contrary, sufficient evidence has emerged to raise serious
safety concerns, that if ignored could result in irreversible damage to health and the
environment. GM crops should therefore be firmly rejected now.
The ISP further concluded that "[s]ustainable agricultural practices have proven beneficial in all aspects
relevant to health and the environment. In addition, they bring food security and social and cultural well
being to local communities everywhere. There is an urgent need for a comprehensive global shift to all
forms of sustainable agriculture.118
In 2008, a Global Report119 was released by the International Assessment of Agricultural Knowledge,
Science and Technology for Development (IAASTD), a three-year international collaborative effort (20052007) developed out of a consultative process involving 900 participants and 110 countries from all over
the world. This global initiative assessed agricultural knowledge, science and technology (AKST) in relation
to meeting development and sustainability goals of (1) reducing hunger and poverty; (2) improving
nutrition, health and rural livelihoods; and (3) facilitating social and environmental sustainability. The
report concluded that a radical transformation of the world's food and farming systems - especially the
policies and institutions that affect them - is necessary if we are to overcome converging economic and
environmental crises and feed the world sustainably. It also warned that technologies such as high-yielding
crop varieties, agrochemicals and mechanization have primarily benefited the better-resourced groups in
society and transnational corporations, rather than the most vulnerable ones. In general, the IAASTD found
little evidence to support a conclusion that modern biotechnologies are well suited to meeting the needs of
small-scale and subsistence farmers, particularly under the increasingly unpredictable environmental and
economic conditions tha they face.120
More recently, in 2013, the European Network of Scientists for Social and Environmental Responsibility
(ENSSER), an international group of more than 90 scientists, academics and physicians, released a
statement that there is no scientific consensus on the safety of GM foods and crops. 121 The statement122 is
herein reproduced:

10/21/13
Statement: No scientific consensus on GMO safety
As scientists, physicians, academics, and experts from disciplines relevant to the scientific, legal, social
and safety assessment aspects of genetically modified organisms (GMOs), we strongly reject claims by GM
seed developers and some scientists, commentators, and journalists that there is a "scientific consensus"
on GMO safety and that the debate on this topic is "over".
We feel compelled to issue this statement because the claimed consensus on GMO safety does not exist.
The claim that it does exist is misleading and misrepresents the currently available scientific evidence and
the broad diversity of opinion among scientists on this issue. Moreover, the claim encourages a climate of
complacency that could lead to a lack of regulatory and scientific rigour and appropriate caution,
potentially endangering the health of humans, animals, and the environment.
Science and society do not proceed on the basis of a constructed consensus, as current knowledge is
always open to well-founded challenge and disagreement. We endorse the need for further independent
scientific inquiry and informed public discussion on GM product safety and urge GM proponents to do the
same.
Some of our objections to the claim of scientific consensus are listed below.
1. There is no consensus on GM food safety
Regarding the safety of GM crops and foods for human and animal health, a comprehensive review of
animal feeding studies of GM crops found "An equilibrium in the number [of] research groups suggesting,
on the basis of their studies, that a number of varieties of GM products (mainly maize and soybeans) are
as safe and nutritious as the respective conventional non-GM plant, and those raising still serious
concerns". The review also found that most studies concluding that GM foods were as safe and nutritious
as those obtained by conventional breeding were "performed by biotechnology companies or associates,
which are also responsible [for] commercializing these GM plants".
A separate review of animal feeding studies that is often cited as showing that GM foods are safe included
studies that found significant differences in the GM-fed animals. While the review authors dismissed these
findings as not biologically significant, the interpretation of these differences is the subject of continuing
scientific debate and no consensus exists on the topic.
Rigorous studies investigating the safety of GM crops and foods would normally involve animal feeding
studies in which one group of animals is fed GM food and another group is fed an equivalent non-GM diet.
Independent studies of this type are rare, but when such studies have been performed, some have
revealed toxic effects or signs of toxicity in the GM-fed animals. The concerns raised by these studies have
not been followed up by targeted research that could confirm or refute the initial findings.
The lack of scientific consensus on the safety of GM foods and crops is underlined by the recent research
calls of the European Union and the French government to investigate the long-term health impacts of GM
food consumption in the light of uncertainties raised by animal feeding studies. These official calls imply
recognition of the inadequacy of the relevant existing scientific research protocols. They call into question
the claim that existing research can be deemed conclusive and the scientific debate on biosafety closed.
2. There are no epidemiological studies investigating potential effects of GM food consumption
on human health
It is often claimed that "trillions of GM meals" have been eaten in the US with no ill effects. However, no
epidemiological studies in human populations have been carried out to establish whether there are any
health effects associated with GM food consumption. As GM foods are not labelled in North America, a
major producer and consumer of GM crops, it is scientifically impossible to trace, let alone study, patterns
of consumption and their impacts. Therefore, claims that GM foods are safe for human health based on the
experience of North American populations have no scientific basis.
3. Claims that scientific and governmental bodies endorse GMO safety are exaggerated or
inaccurate
Claims that there is a consensus among scientific and governmental bodies that GM foods are safe, or that
they are no more risky than non-GM foods, are false.
For instance, an expert panel of the Royal Society of Canada issued a report that was highly critical of the
regulatory system for GM foods and crops in that country. The report declared that it is "scientifically
unjustifiable" to presume that GM foods are safe without rigorous scientific testing and that the "default
prediction" for every GM food should be that the introduction of a new gene will cause "unanticipated
changes" in the expression of other genes, the pattern of proteins produced, and/or metabolic activities.
Possible outcomes of these changes identified in the report included the presence of new or unexpected
allergens.
A report by the British Medical Association concluded that with regard to the long-term effects of GM foods
on human health and the environment, "many unanswered questions remain" and that "safety concerns

cannot, as yet, be dismissed completely on the basis of information currently available". The report called
for more research, especially on potential impacts on human health and the environment.
Moreover, the positions taken by other organizations have frequently been highly qualified, acknowledging
data gaps and potential risks, as well as potential benefits, of GM technology. For example, a statement by
the American Medical Association's Council on Science and Public Health acknowledged "a small potential
for adverse events ... due mainly to horizontal gene transfer, allergenicity, and toxicity" and recommended
that the current voluntary notification procedure practised in the US prior to market release of GM crops be
made mandatory. It should be noted that even a "small potential for adverse events" may turn out to be
significant, given the widespread exposure of human and animal populations to GM crops.
A statement by the board of directors of the American Association for the Advancement of Science (AAAS)
affirming the safety of GM crops and opposing labelling cannot be assumed to represent the view of AAAS
members as a whole and was challenged in an open letter by a group of 21 scientists, including many
long-standing members of the AAAS. This episode underlined the lack of consensus among scientists about
GMO safety.
4. EU research project does not provide reliable evidence of GM food safety
An EU research project has been cited internationally as providing evidence for GM crop and food safety.
However, the report based on this project, "A Decade of EU-Funded GMO Research", presents no data that
could provide such evidence, from long-term feeding studies in animals.
Indeed, the project was not designed to test the safety of any single GM food, but to focus on "the
development of safety assessment approaches". Only five published animal feeding studies are referenced
in the SAFOTEST section of the report, which is dedicated to GM food safety. None of these studies tested a
commercialised GM food; none tested the GM food for long-term effects beyond the subchronic period of
90 days; all found differences in the GM-fed animals, which in some cases were statistically significant; and
none concluded on the safety of the GM food tested, let alone on the safety of GM foods in general.
Therefore the EU research project provides no evidence for sweeping claims about the safety of any single
GM food or of GM crops in general.
5. List of several hundred studies does not show GM food safety
A frequently cited claim published on an Internet website that several hundred studies "document the
general safety and nutritional wholesomeness of GM foods and feeds" is misleading. Examination of the
studies listed reveals that many do not provide evidence of GM food safety and, in fact, some provide
evidence of a lack of safety. For example:chanRoblesvirtualLawlibrary
Many of the studies are not toxicological animal feeding studies of the type that can provide useful
information about health effects of GM food consumption. The list includes animal production studies that
examine parameters of interest to the food and agriculture industry, such as milk yield and weight gain;
studies on environmental effects of GM crops; and analytical studies of the composition or genetic makeup
of the crop.
Among the animal feeding studies and reviews of such studies in the list, a substantial number found
toxic effects and signs of toxicity in GM-fed animals compared with controls. Concerns raised by these
studies have not been satisfactorily addressed and the claim that the body of research shows a consensus
over the safety of GM crops and foods is false and irresponsible.
Many of the studies were conducted over short periods compared with the animal's total lifespan and
cannot detect long-term health effects.
We conclude that these studies, taken as a whole, are misrepresented on the Internet website as they do
not "document the general safety and nutritional wholesomeness of GM foods and feeds". Rather, some of
the studies give serious cause for concern and should be followed up by more detailed investigations over
an extended period of time.
6. There is no consensus on the environmental risks of GM crops
Environmental risks posed by GM crops include the effects of Bt insecticidal crops on non-target organisms
and effects of the herbicides used in tandem with herbicide-tolerant GM crops.
As with GM food safety, no scientific consensus exists regarding the environmental risks of GM crops. A
review of environmental risk assessment approaches for GM crops identified shortcomings in the
procedures used and found "no consensus" globally on the methodologies that should be applied, let alone
on standardized testing procedures.
Some reviews of the published data on Bt crops have found that they can have adverse effects on nontarget and beneficial organisms - effects that are widely neglected in regulatory assessments and by some
scientific commentators. Resistance to Bt toxins has emerged in target pests, and problems with
secondary (non-target) pests have been noted, for example, in Bt cotton in China.
Herbicide-tolerant GM crops have proved equally controversial. Some reviews and individual studies have

associated them with increased herbicide use, the rapid spread of herbicide-resistant weeds, and adverse
health effects in human and animal populations exposed to Roundup, the herbicide used on the majority of
GM crops.
As with GM food safety, disagreement among scientists on the environmental risks of GM crops may be
correlated with funding sources. A peer-reviewed survey of the views of 62 life scientists on the
environmental risks of GM crops found that funding and disciplinary training had a significant effect on
attitudes. Scientists with industry funding and/or those trained in molecular biology were very likely to
have a positive attitude to GM crops and to hold that they do not represent any unique risks, while
publicly-funded scientists working independently of GM crop developer companies and/or those trained in
ecology were more likely to hold a "moderately negative" attitude to GM crop safety and to emphasize the
uncertainty and ignorance involved. The review authors concluded, "The strong effects of training and
funding might justify certain institutional changes concerning how we organize science and how we make
public decisions when new technologies are to be evaluated."
7. International agreements show widespread recognition of risks posed by GM foods and
crops
The Cartagena Protocol on Biosafety was negotiated over many years and implemented in 2003. The
Cartagena Protocol is an international agreement ratified by 166 governments worldwide that seeks to
protect biological diversity from the risks posed by GM technology. It embodies the Precautionary Principle
in that it allows signatory states to take precautionary measures to protect themselves against threats of
damage from GM crops and foods, even in case of a lack of scientific certainty.
Another international body, the UN's Codex Alimentarius, worked with scientific experts for seven years to
develop international guidelines for the assessment of GM foods and crops, because of concerns about the
risks they pose. These guidelines were adopted by the Codex Alimentarius Commission, of which over 160
nations are members, including major GM crop producers such as the United States.
The Cartagena Protocol and Codex share a precautionary approach to GM crops and foods, in that they
agree that genetic engineering differs from conventional breeding and that safety assessments should be
required before GM organisms are used in food or released into the environment.
These agreements would never have been negotiated, and the implementation processes elaborating how
such safety assessments should be conducted would not currently be happening, without widespread
international recognition of the risks posed by GM crops and foods and the unresolved state of existing
scientific understanding.
Concerns about risks are well-founded, as has been demonstrated by studies on some GM crops and foods
that have shown adverse effects on animal health and non-target organisms, indicated above. Many of
these studies have, in fact, fed into the negotiation and/or implementation processes of the Cartagena
Protocol and Codex. We support the application of the Precautionary Principle with regard to the release
and transboundary movement of GM crops and foods.
Conclusion
In the scope of this document, we can only highlight a few examples to illustrate that the totality of
scientific research outcomes in the field of GM crop safety is nuanced, complex, often contradictory or
inconclusive, confounded by researchers' choices, assumptions, and funding sources, and in general, has
raised more questions than it has currently answered.
Whether to continue and expand the introduction of GM crops and foods into the human food and animal
feed supply, and whether the identified risks are acceptable or not, are decisions that involve
socioeconomic considerations beyond the scope of a narrow scientific debate and the currently unresolved
biosafety research agendas. These decisions must therefore involve the broader society. They should,
however, be supported by strong scientific evidence on the long-term safety of GM crops and foods for
human and animal health and the environment, obtained in a manner that is honest, ethical, rigorous,
independent, transparent, and sufficiently diversified to compensate for bias.
Decisions on the future of our food and agriculture should not be based on misleading and
misrepresentative claims that a "scientific consensus" exists on GMO safety. 123ChanRoblesVirtualawlibrary
One of the most serious concerns raised against GM crops is that expressed by one of our political analysts
now serving in Congress, viz:
x x x patented GMO seeds concentrate power in the hands of a few biotech corporations and marginalize
small farmers. As the statement x x x of the 81 members of the World Future Council put it, "While
profitable to the few companies producing them, GMO seeds reinforce a model of farming that undermines
sustainability of cash-poor farmers, who make up most of the world's hungry. GMO seeds continue farmers'
dependency on purchased seed and chemical inputs. The most dramatic impact of such dependency is in
India, where 270,000 farmers, many trapped in debt for buying seeds and chemicals, committed suicide
between 1995 and 2012."124ChanRoblesVirtualawlibrary

In sum, current scientific research indicates that the biotech industry has not sufficiently addressed the
uncertainties over the safety of GM foods and crops.
Bt Brinjal Controversy in India

Brinjal (eggplant) is a major crop and a popular component of food diet in India, an important ingredient in
Ayurvedic medicine, and is of special value for the treatment of diabetes and liver problems. The
attempted commercial propagation of Bt brinjal spawned intense debate and suffered obstacles due to
sustained opposition from local scientists, academicians and non-government organizations in India.
As in the case of the Philippines, proponents of Bt brinjal in India, believed to be the origin of eggplant's
diversity, said that if the new technology is adopted, decrease in the use of insecticides, substantial
increase in crop yields and greater food availability, can be expected. But opponents argued, alongside
food safety concerns, that there is a potential for toxic effects on populations of non-target invertebrates,
and potential replacement of traditional landraces as farmers may move towards cultivation of a restricted
number of GE forms. In addition to these issues, there was the additional concern raised over the transfer
of Bt transgenes to non-GE brinjal or its wild relatives, and the consequences for plant biodiversity. 125
Writ petitions were lodged before the Supreme Court of India to stop the release into the environment of Bt
brinjal (Aruna Rodrigues and Ors, etc. vs. Union of India). The Court formed a Technical Evaluation
Committee (TEC) composed of experts nominated by the parties to undertake a comprehensive evaluation
of the feasibility of allowing the open field trials of Bt brinjal and submit a final report, and in the event the
TEC is unable to submit said final report, it was directed instead to submit an interim report within the
period set by the Court on the following issue: Whether there should or should not be any ban, partial or
otherwise, upon conducting of open field tests of the GMOs? In the event open field trials are permitted,
what protocol should be followed and conditions, if any, that may be imposed by the Court for
implementation of open field trials." The Court also directed that the TEC would be free to review report or
studies authored by national and international scientists if it was necessary.
In its Interim Report dated October 17, 2012, the TEC recommended that, in view of its findings, all field
trials should be stopped until certain conditions have been met. A Final Report 126 was eventually submitted
to the Court which noted weaknesses in the conditions imposed by the regulatory agencies for conduct of
field trials, as follows: 1) post-release monitoring, an important aspect of environmental and health safety
(if the GE crop is consumed as food) is not given adequate attention; 2) the importance of need and socioeconomic impact assessment of GM products as one of the criteria that should be applied in the evaluation
at an early stage; and 3) need for additional tests not currently done such as long-term feeding studies for
assessment of chronic and intergeneration toxicity in small animals, genomewide expression analysis in
the toxicity studies to screen for possible unintended effects on host physiology. It was recommended that
a moratorium on field trials of herbicide tolerant crops until the issue had been examined by an
independent committee, and also noted that said technology may not be suitable in the Indian socioeconomic context due to possible impact of extensive use of broad spectrum herbicides on the
environmental biodiversity and smaller average farm size. Examination of the safety dossier of Bt
brinjal indicated certain concerns on the data, which had not been addressed in the course of regulatory
testing leading to approval due to lack of full-time qualified personnel for the purpose. Overall, it was found
that the quality of information in several of the applications is far below what would be expected and
required for rigorous evaluation by a regulatory body and is unlikely to meet international regulatory
guidelines.
On the mechanism of CrylAc proteins, the TEC cited studies showing that it is possible under certain
conditions for CrylAc protein to kill insects that lack the cadherin receptor. Also, while it is generally
believed that Cry toxins do not exert an effect on vertebrates as vertebrates lack the receptor for Cry
toxins, two studies (one in mice and the other in cows) have provided evidence that Cry proteins can bind
to mammalian intestinal epithelial cells. The report also discussed the emergence of resistance in insect
pests, health and food safety of Bt transgenics, and herbicide tolerant crops and their effect on biodiversity
and the environment. Specific recommendations were made to address the foregoing issues and the report
concluded that:
The release of a GM crop into its area of origin or diversity has far greater ramifications and potential for
negative impact than for other species. To justify this, there needs to be extraordinarily compelling reasons
and only when other choices are not available. GM crops that offer incremental advantages or solutions to
specific and limited problems are not sufficient reasons to justify such release. The TEC did not find any
such compelling reasons under the present conditions. The fact is that unlike the situation in 1960s there is
no desperate shortage of food and in fact India is in a reasonably secure position. The TEC therefore
recommends that release of GM crops for which India is a centre of origin or diversity should not be
allowed.127ChanRoblesVirtualawlibrary
In 2010, responding to large-scale opposition to Bt brinjal's introduction in India, former environment
minister Jairam Ramesh placed an indefinite moratorium on its further field testing. This was done after
discussions with scientists, both pro and anti-GM crops, activists and farmers across the country.
GMO Field Trials in the Philippines

As earlier mentioned, the conduct of field trials for GE plants and crops in our country is governed primarily
by DAO 08-2002 and implemented by the DA through the BPI. Petitioners EMB, BPI and FPA all maintain
there was no unlawful deviation from its provisions and that respondents so far failed to present evidence
to prove their claim that Bt talong field trials violated environmental laws and rules.
Within the DA-BPI, it is the Scientific and Technical Review Panel (STRP) which, as an advisory body, was
tasked to "evaluate the potential risks of the proposed activity to human health and the environment
based on available scientific and technical information." Under DA Special Order 241 and 384 (2002) the
STRP membership was expanded to include "an independent pool of experts...tapped by the [BPI] to
evaluate the potential risks of the proposed release of GMOs for field testing, propagation, food, feed to
human health and the environment based on available scientific and technical information."
DAO 08-2002 supplements the existing guidelines on the importation and release into the environment of
products of modern biotechnology by institutionalizing existing operational arrangements between DA-BPI
and the NCBP. Effective July 2003, applications for field test are received and processed by DA-BPI, but the
approval process for projects on contained use remains under the supervision of NCBP. A mandatory risk
assessment of GM plant and plant products is required prior to importation or release into the
environment. Experiments must first be conducted under contained conditions, then the products are
tested in field trials the product is reviewed for commercial release. Risk assessment is done according to
the principles provided for by the Cartagena Protocol on Biosafety. Risk assessment is science-based,
carried out on a case by case manner, targets a specific crop and its transformation event, adopts the
concept of substantial equivalence in identifying risk, allows review, and provides that the absence of
scientific information or consensus should not be interpreted to indicate the absence or presence and level
of risk.128
Greenpeace, however, claims there is actually only a committee of three to five members which conducts
the risk assessment, and is aided by an informal group, the DA's Biotech Advisory Team (BAT), of
representatives from government biotech regulatory agencies: BPI, BAI, FPA, DENR, DOH and DOST. It also
assails the government regulatory agencies for their refusal to open to scrutiny the names and
qualifications of those incharge of regulation and risk assessment, and for allowing the entry and use
of all GMO applications requested by multinational companies.129
It must be stressed that DAO 08-2002 and related DA orders are not the only legal bases for regulating
field trials of GM plants and plant products. EO 514130 establishing the National Biosafety Framework (NBF)
clearly provides that the NBF shall apply to the development, adoption and implementation ofall biosafety
policies, measures and guidelines and in making biosafety decisions concerning the research,
development, handling and use, transboundary movement, release into the environment and management
of regulated articles.131 The objective of the NBF is to "[e]nhance the decision-making system on the
application of products of modern biotechnology to make it more efficient, predictable, effective, balanced,
culturally appropriate, ethical, transparent and participatory". 132 Thus, "the socio-economic, ethical, and
cultural benefit and risks of modern biotechnology to the Philippines and its citizens, and in particular on
small farmers, indigenous peoples, women, small and medium enterprises and the domestic scientific
community, shall be taken into account in implementing the NBF." 133 The NBF also mandates that decisions
shall be arrived at in a transparent and participatory manner, recognizing that biosafety issues are best
handled with the participation of all relevant stakeholders and organizations who shall have appropriate
access to information and the opportunity to participate responsibly and in an accountable manner in
biosafety decision-making process.134
Most important, the NBF requires the use of precaution, as provided in Section 2.6 which reads:
2.6 Using Precaution. -In accordance with Principle 15 of the Rio Declaration of 1992 and the relevant
provisions of the Cartagena Protocol on Biosafety, in particular Articles 1, 10 (par. 6) and 11 (par. 8), the
precautionary approach shall guide biosafety decisions. The principles and elements of this approach are
hereby implemented through the decision-making system in the NBF;
The NBF contains general principles and minimum guidelines that the concerned agencies are expected to
follow and which their respective rules and regulations must conform with. In cases of conflict in applying
the principles, the principle of protecting public interest and welfare shall always prevail, and no provision
of the NBF shall be construed as to limit the legal authority and mandate of heads of departments and
agencies to consider the national interest and public welfare in making biosafety decisions. 135
As to the conduct of risk assessment to identify and evaluate the risks to human health and the
environment, these shall be guided by the following:
5.2.1 Principles of Risk Assessment. - The following principles shall be followed when performing a RA
to determine whether a regulated article poses significant risks to human health and the
environment:chanRoblesvirtualLawlibrary

5.2.1.
1

The RA shall be carried out in a scientifically sound and transparent manner based on available
scientific and technical information. The expert advice of and guidelines developed by,

relevant international organizations, including intergovernmental bodies, and

regulatory authorities of countries with significant experience in the regulatory
supervision of the regulated article shall be taken into account in the conduct of risk
assessment;

5.2.1.
2

Lack of scientific knowledge or scientific consensus shall not be interpreted as indicating a

particular level of risk, an absence of risk, or an acceptable risk;

5.2.1.
3

The identified characteristics of a regulated article and its use which have the potential to pose
significant risks to human health and the environment shall be compared to those presented by
the non-modified organism from which it is derived and its use under the same conditions;

5.2.1.
4

The RA shall be carried out case-by-case and on the basis of transformation event. The required
information may vary in nature and level of detail from case to case depending on the regulated
article concerned, its intended use and the receiving environment; and,

5.2.1.
5

If new information on the regulated article and its effects on human health and the environment
becomes available, and such information is relevant and significant, the RA shall be readdressed
to determine whether the risk has changed or whether there is a need to amend the risk
management strategies accordingly.

5.2.2 Risk Assessment Guidelines. - The conduct of RA by concerned departments and agencies shall
be in accordance with the policies and standards on RA issued by the NCBP. Annex III of the Cartagena
Protocol shall also guide RA. As appropriate, such department and agencies may issue their own respective
administrative issuances establishing the appropriate RA under their particular jurisdictions.
5.3 Role of Environmental Impact Assessment. - The application of the EIA System to biosafety
decisions shall be determined by concerned departments and agencies subject to the
requirements of law and the standards set by the NCBP. Where applicable and under the
coordination of the NCBP, concerned departments and agencies shall issue joint guidelines on the matter.
(Emphasis supplied)
Considering the above minimum requirements under the most comprehensive national biosafety
regulation to date, compliance by the petitioners with DAO 08-2002 is not sufficient. Notably, Section 7 of
the NBF mandates a more transparent, meaningful and participatory public consultation on the conduct of
field trials beyond the posting and publication of notices and information sheets, consultations with some
residents and government officials, and submission of written comments, provided in DAO 08-2002.
SECTION 7. PUBLIC PARTICIPATION

The concerned government departments and agencies, in developing and adopting biosafety policies,
guidelines and measures and in making biosafety decisions, shall promote, facilitate, and conduct public
awareness, education, meaningful, responsible and accountable participation. They shall incorporate into

their respective administrative issuances and processes best practices and mechanisms on public
participation in accordance with the following guidelines:chanRoblesvirtualLawlibrary
7.1 Scope of Public Participation. - Public participation shall apply to all stages of the biosafety
decision-making process from the time the application is received. For applications on
biotechnology activities related to research and development, limited primarily for contained use, notice of
the filing of such application with the NCBP shall be sufficient, unless the NCBP deems that public interest
and welfare requires otherwise.
7.2 Minimum Requirements of Public Participation. - In conducting public participation processes, the
following minimum requirements shall be followed:chanRoblesvirtualLawlibrary
7.2.1 Notice to all concerned stakeholders, in a language understood by them and through media to which
they have access. Such notice must be adequate, timely, and effective and posted prominently in public
places in the areas affected, and in the case of commercial releases, in the national print media; in all
cases, such notices must be posted electronically in the internet;
7.2.2 Adequate and reasonable time frames for public participation procedures. Such procedures should
allow relevant stakeholders to understand and analyze the benefits and risks, consult with independent
experts, and make timely interventions. Concerned departments and agencies shall include in their
appropriate rules and regulations specific time frames for their respective public participation processes,
including setting a minimum time frame as may be appropriate;
7.2.3 Public consultations, as a way to secure wide input into the decisions that are to be made. These
could include formal hearings in certain cases, or solicitation of public comments, particularly where there
is public controversy about the proposed activities. Public consultations shall encourage exchanges of
information between applicants and the public before the application is acted upon. Dialogue and
consensus-building among all stakeholders shall be encouraged. Concerned departments and agencies
shall specify in their appropriate rules and regulations the stages when public consultations are
appropriate, the specific time frames for such consultations, and the circumstances when formal hearings
will be required, including guidelines to ensure orderly proceedings. The networks of agricultural and
fisheries councils, indigenous peoples and community-based organizations in affected areas
shall be utilized;
7.2.4 Written submissions. Procedures for public participation shall include mechanisms that allow public
participation in writing or through public hearings, as appropriate, and which allow the
submission of any positions, comments, information, analyses or opinions. Concerned
departments and agencies shall include in their appropriate rules and regulations the stages when and the
process to be followed for submitting written comments; and,
7.2.5 Consideration of public concerns in the decision-making phase following consultation and submission
of written comments. Public concerns as reflected through the procedures for public participation shall be
considered in making the decision. The public shall be informed of the final decision promptly, have access
to the decision, and shall be provided with the reasons and considerations resulting in the decision, upon
request.
We find that petitioners simply adhered to the procedures laid down by DAO 08-2002 and no real effort
was made to operationalize the principles of the NBF in the conduct of field testing of Bt talong. The failure
of DAO 08-2002 to accommodate the NBF means that the Department of Agriculture lacks mechanisms to
mandate applicants to comply with international biosafety protocols. Greenpeace's claim that BPI had
approved nearly all of the applications for GMO field trials is confirmed by the data posted on their website.
For these reasons, the DAO 08-2002 should be declared invalid.
Significantly, while petitioners repeatedly argued that the subject field trials are not covered by the EIS
law, EO 514 clearly mandates that concerned departments and agencies, most particularly petitioners
DENR-EMB, BPI and FPA, make a determination whether the EIS system should apply to the release of
GMOs into the environment and issue joint guidelines on the matter.
The Philippine EIS System (PEISS) is concerned primarily with assessing the direct and indirect impacts of a
project on the biophysical and human environment and ensuring that these impacts are addressed by
appropriate environmental protection and enhancement measures. It "aids proponents in incorporating
environmental considerations in planning their projects as well as in determining the environment's impact
on their project." There are six stages in the regular EIA process. The proponent initiates the first three
stages while the EMB takes the lead in the last three stages. Public participation is enlisted in most
stages.136
Even without the issuance of EO 514, GMO field testing should have at least been considered for EIA under
existing regulations of petitioner EMB on new and emerging technologies, to wit:
g) Group V (Unclassified Projects): These are the projects not listed in any of the groups, e.g. projects
using new processes/technologies with uncertain impacts. This is an interim category - unclassified
projects will eventually be classified into their appropriate groups after EMB evaluation. 137 (Emphasis
supplied)

All government agencies as well as private corporations, firms and entities who intend to undertake
activities or projects which will affect the quality of the environment are required to prepare a detailed
Environmental Impact Statement (EIS) prior to undertaking such development activity. 138 An
environmentally critical project (ECP) is considered by the EMB as "likely to have significant adverse impact
that may be sensitive, irreversible and diverse" and which "include activities that have significant
environmental consequences."139 In this context, and given the overwhelming scientific attention
worldwide on the potential hazards of GMOs to human health and the environment, their release into the
environment through field testing would definitely fall under the category of ECP.
During the hearing at the CA, Arty. Segui of the EMB was evasive in answering questions on whether his
office undertook the necessary evaluation on the possible environmental impact of Bt talong field trials
subject of this case and the release of GMOs into the environment in general. While he initially cited lack of
budget and competence as reasons for their inaction, he later said that an amendment of the law should
be made since projects involving GMOs are not covered by Proclamation No. 2146 140. Pertinent portions of
his testimony before the CA are herein quoted:
xxxx
ATTY. SORIANO:chanRoblesvirtualLawlibrary
Let us go back Mr. Witness to your answer in Question No. 5 regarding the list under the PEISS law.
Granting Mr. Witness that a certain project or undertaking is not classified as environmentally critical
project, how would you know that the BT talong field testing is not located in an environmentally critical
area this time?
ATTY. ACANTILADO:chanRoblesvirtualLawlibrary
Objection Your Honor, argumentative.
HON. J. DICDICAN:chanRoblesvirtualLawlibrary
Witness may answer.
ATTY. SEGUI:chanRoblesvirtualLawlibrary
As far as my recollection can serve me, in a reading of the Petition itself, somewhere along the Petition,
petitioners never alleged that the project, the subject matter rather of this instant petition, is within an
environmentally critical project.
ATTY. SORIANO:chanRoblesvirtualLawlibrary
Your Honor the Witness did not answer the question.
HON. J. DICDICAN:chanRoblesvirtualLawlibrary
Please answer the question.
ATTY. SEGUI:chanRoblesvirtualLawlibrary
Personally I have conferred with our personnel from the Environmental Impact Assessment Division and
they intimated to me that the locations of the project, rather of this subject matter of the instant petition,
not within any declared environmentally critical area.
HON. J. BARRIOS:chanRoblesvirtualLawlibrary
In other words, you are aware of the area where the BT Talong experiments are being conducted. Is that
the premise?
ATTY. SEGUI:chanRoblesvirtualLawlibrary
Judging from previous discussions we had . . . judging from the Petition, and showing it to the as I said
personnel from Environmental Impact Division at our office, as I said they intimated to me that it's not
within declared environmentally critical area.
HON. J. BARRIOS:chanRoblesvirtualLawlibrary
That being the case, you did not act further? [You] did not make any further evaluation, on whether
the activity has an environmental impact? Is that the correct premise?
ATTY. SEGUI:chanRoblesvirtualLawlibrary
Well Your Honors I may be the Chief of the Legal Division of the EMB, I handle more of the legal aspects of
the Bureau's affairs. But when it comes to highly technical matters, I have to rely on our technical people

especially on environmentally impact assessment matters.

ATTY. SORIANO:chanRoblesvirtualLawlibrary
I will just ask him another question Your Honors. So did the Department of Agriculture Mr. Witness
coordinate with your Office with regard the field testing of BT Talong?
ATTY. SEGUI:chanRoblesvirtualLawlibrary
I'm sorry Your Honors I am not privy to that personally.
ATTY. SORIANO:chanRoblesvirtualLawlibrary
Mr. Witness, the question is did the Department of Agriculture coordinate with your Office with regard the
field testing of BT Talong as required under the law?
ATTY. SORIANO:chanRoblesvirtualLawlibrary
Already answered your Honor, objection.
HON. J. DICDICAN:chanRoblesvirtualLawlibrary
The witness in effect said he does not know, he's not in a position to answer.
xxxx
ATTY. SORIANO:chanRoblesvirtualLawlibrary
Did the EMB Mr. Witness perform such evaluation in the case of BT Talong field testing?
ATTY. ACANTILADO:chanRoblesvirtualLawlibrary
Your Honor that is speculative, the witness has just answered a while ago that the EMB has not yet
received any project with respect to that Your Honor. So the witness would not be in a position to answer
that Your Honors.
HON. J. DICDICAN:chanRoblesvirtualLawlibrary
Lay the basis first.
ATTY. SORIANO:chanRoblesvirtualLawlibrary
The earlier answer Your Honor of the witness is in general terms. My second question, my follow-up
question is specifically Your Honor the BTtalong field testing.
ATTY. SEGUI:chanRoblesvirtualLawlibrary
Well from where I sit Your Honors, it would appear that it could be categorized as unclassified...
HON. J. VALENZUELA:chanRoblesvirtualLawlibrary
Unclassified?
ATTY. SEGUI:chanRoblesvirtualLawlibrary
As the section will initially provide. But there must be prior ... may I continue to harp on that Your Honors.
There must be prior ... let's say conditions ... there must be prior evaluation and assessment just the same
by the EMB.
HON. J. VALENZUELA:chanRoblesvirtualLawlibrary
Prior to what Mr. Witness?
ATTY. SEGUI:chanRoblesvirtualLawlibrary
We will categorize it as unclassified but there must be ... (interrupted)
HON. J. VALENZUELA:chanRoblesvirtualLawlibrary
So initially you call it unclassified and then you say prior to...
ATTY. SEGUI:chanRoblesvirtualLawlibrary
I'm sorry Your Honors, may I reform.

HON. J. VALENZUELA:chanRoblesvirtualLawlibrary
Yes please.
ATTY. SEGUI:chanRoblesvirtualLawlibrary
Initially they will be considered/categorized as unclassified but there will be hopefully a subsequent
evaluation or assessment of the matter to see if we also have the resources and expertise if it can be
finally unclassified. I should say should fall within the fairview of the system, the EIA system. In other
words, it's in a sort of how do you say that it's in a state of limbo. So it's unclassified, that's the most we
can do in the meantime.
HON. J. VALENZUELA:chanRoblesvirtualLawlibrary
And Mr. Witness you also said that the agency the EMB is without the capability to evaluate the projects
such as this one in particular?
ATTY. SEGUI:chanRoblesvirtualLawlibrary
Yes, Your Honors as of now.
HON. J. VALENZUELA:chanRoblesvirtualLawlibrary
So therefore, when you say initially it's unclassified and then you're saying afterwards the EMB
needs evaluation but then you're saying the EMB is without any capability to evaluate then
what happens?
ATTY. SEGUI:chanRoblesvirtualLawlibrary
Well Your Honors, I did not draft the regulation myself. As the Chief of the Legal of the EMB that's how we
interpret it. But the truth of the matter is with all pragmatism we don't have the resources as
of now and expertise to do just that.
HON. J. BARRIOS:chanRoblesvirtualLawlibrary
So in other words you admit that the EMB is without any competence to make a categorical or
initial examination of this uncategorized activity, is that what you mean?
ATTY. SEGUI:chanRoblesvirtualLawlibrary
It would appear, yes.
HON. J. BARRIOS:chanRoblesvirtualLawlibrary
What do you think would prompt your office to make such initial examination?
ATTY. SEGUI:chanRoblesvirtualLawlibrary
Well executive fee at the usual dictates ... the Secretary of the DENR probably even by request of the
parties concerned.
HON. J. BARRIOS:chanRoblesvirtualLawlibrary
So that means you are waiting for a request? Are you not? Proactive in this activity in performing your
obligations and duties?
ATTY. SEGUI:chanRoblesvirtualLawlibrary
Well Your Honors, the national budget if I may ... I attend budget hearings myself. The budget for the
environment is hardly ... the ratio is ... if we want to protect indeed the environment as we
profess, with all due respect if Congress speaks otherwise.
HON. J. BARRIOS:chanRoblesvirtualLawlibrary
May I interrupt, can we go into specifics. From what I have read so far, under No. 2 of your Judicial Affidavit,
[you] are saying that the EMB is tasked in advising the DENR on matters related to environmental
management, conservation and pollution control, right?
ATTY. SEGUI:chanRoblesvirtualLawlibrary
Yes.
HON. J. BARRIOS:chanRoblesvirtualLawlibrary

Thereafter you stated that you are tasked mainly with PD 1586 which refers to Environmental Critical Areas
of Projects and more specifically focused on Proclamation No. 2146. With respect to this BT Talong, you
mentioned that this is at first is uncategorized, it's not within?
ATTY. SEGUI:chanRoblesvirtualLawlibrary
It's not within Proclamation 2146 Your Honor.
HON. J. BARRIOS:chanRoblesvirtualLawlibrary
But you did mention that under the rules and regulations, even in an uncategorized activity, pertaining to
the environment, your Office has the mandate and then you later say that your Office is without
competence, do I follow your line of standing?
ATTY. SEGUI:chanRoblesvirtualLawlibrary
Yes, precisely it will be categorized as per section 7 as unclassified because it doesn't fall as of now within
Proclamation 2146.
HON. J. BARRIOS:chanRoblesvirtualLawlibrary
Yes, but under the implementing rules your Office has the mandate to act on other unclassified activities
and you answered that your Office has no competence.
ATTY. SEGUI:chanRoblesvirtualLawlibrary
Proclamation 2146 executed by then Pres. Marcos, the IRR pointed to was executed by I believe the
Secretary of DENR. We need an amendment of 2146.141 (Emphasis supplied)
The foregoing stance of the EMB's Chief of the Legal Division is an indication of the DENR-EMB's lack of
serious attention to their mandate under the law in the implementation of the NBF, as provided in the
following sections of EO 514:
4.9 Mandate of the Department of Environment and Natural Resources. - As the primary
government agency responsible for the conservation, management, development and proper use of the
country's environment and natural resources, the Department of Environment and Natural Resources
(DENR) shall ensure that environmental assessments are done and impacts identified in
biosafety decisions. It shall also take the lead in evaluating and monitoring regulated articles intended
for bioremediation, the improvement of forest genetic resources, and wildlife genetic resources.
xxxx
4.12 Focal Point and Competent National Authorities.
4.12.1 For purposes of Article 19 of the Cartagena Protocol on Biosafety, the national focal point
responsible for liaison with the Secretariat shall be the Department of Foreign Affairs. The competent
national authorities, responsible for performing the administrative functions required by the Protocol, shall
be, depending on the particular genetically modified organisms in question, the
following:chanRoblesvirtualLawlibrary
xxxx
4.12.1.4 The Department of Environment and Natural Resources, for biosafety decisions covered by
the Protocol that concernregulated organisms intended for bioremediation, the improvement of forest
genetic resources, and wildlife genetic resources, andapplications of modern biotechnology with
potential impact on the conservation and sustainable use of biodiversity. (Emphasis supplied)
On the supposed absence of budget mentioned by Atty. Segui, EO 514 itself directed the concerned
agencies to ensure that there will be funding for the implementation of the NBF as it was intended to be a
multi-disciplinary effort involving the different government departments and agencies.
SEC. 6. Funding. - The DOST, DENR, DA, and DOH shall allocate funds from their present budgets to
implement the NBF, including support to the operations of the NCBP and its Secretariat. Starting 2006 and
thereafter, the funding requirements shall be included in the General Appropriations Bill submitted by each
of said departments to Congress.
These concerned departments shall enter into agreement on the sharing of financial and technical
resources to support the NCBP and its Secretariat.
All told, petitioners government agencies clearly failed to fulfil their mandates in the implementation of the
NBF.

Application of the Precautionary Principle

The precautionary principle originated in Germany in the 1960s, expressing the normative idea that
governments are obligated to "foresee and forestall" harm to the environment. In the following decades,
the precautionary principle has served as the normative guideline for policymaking by many national
governments.142 The Rio Declaration on Environment and Development, the outcome of the 1992 United
Nations Conference on Environment and Development held in Rio de Janeiro, defines the rights of the
people to be involved in the development of their economies, and the responsibilities of human beings to
safeguard the common environment. It states that the long term economic progress is only ensured if it is
linked with the protection of the environment.143 For the first time, the precautionary approach was codified
under Principle 15, which reads:
In order to protect the environment, the precautionary approach shall be widely applied by States
according to their capabilities. Where there are threats of serious or irreversible damage, lack of full
scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent
environmental degradation.
Principle 15 codified for the first time at the global level the precautionary approach, which indicates that
lack of scientific certainty is no reason to postpone action to avoid potentially serious or irreversible harm
to the environment. It has been incorporated in various international legal instruments. 144 The Cartagena
Protocol on Biosafety to the Convention on Biological Diversity, finalized and adopted in Montreal on
January 29, 2000, establishes an international regime primarily aimed at regulating trade in GMOs
intended for release into the environment, in accordance with Principle 15 of the Rio Declaration on
Environment and Development. The Protocol thus provides:
Article
10
DECISION PROCEDURE

xxxx
6. Lack of scientific certainty due to insufficient relevant scientific information and knowledge regarding
the extent of the potential adverse effects of a living modified organism on the conservation and
sustainable use of biological diversity in the Party of import, taking also into account risks to human health,
shall not prevent that Party from taking a decision, as appropriate, with regard to the import of the living
modified organism in question as referred to in paragraph 3 above, in order to avoid or minimize such
potential adverse effects.
xxxx
Article
11
PROCEDURE FOR LIVING MODIFIED ORGANISMS
INTENDED FOR DIRECT USE AS FOOD OR FEED,
OR FOR PROCESSING

8. Lack of scientific certainty due to insufficient relevant scientific information and knowledge regarding
the extent of the potential adverse effects of a living modified organism on the conservation and
sustainable use of biological diversity in the Party of import, taking also into account risks to human health,
shall not prevent that Party from taking a decision, as appropriate, with regard to the import of that living
modified organism intended for direct use as food or feed, or for processing, in order to avoid or minimize
such potential adverse effects.
xxxx
Annex III
RISK ASSESSMENT

General principles
xxxx

4. Lack of scientific knowledge or scientific consensus should not necessarily be interpreted as indicating a
particular level of risk, an absence of risk, or an acceptable risk.
The precautionary principle applies when the following conditions are met 145:

there exist considerable scientific uncertainties;

there exist scenarios (or models) of possible harm that are scientifically reasonable (that is based
on some scientifically plausible reasoning);

uncertainties cannot be reduced in the short term without at the same time increasing ignorance of
other relevant factors by higher levels of abstraction and idealization;

the potential harm is sufficiently serious or even irreversible for present or future generations or
otherwise morally unacceptable;

there is a need to act now, since effective counteraction later will be made significantly more
difficult or costly at any later time.

The Rules likewise incorporated the principle in Part V, Rule 20, which states:
PRECAUTIONARY PRINCIPLE

SEC. 1. Applicability. - When there is a lack of full scientific certainty in establishing a causal link between
human activity and environmental effect, the court shall apply the precautionary principle in resolving the
case before it.
The constitutional right of the people to a balanced and healthful ecology shall be given the benefit of the
doubt.
SEC. 2. Standards for application. - In applying the precautionary principle, the following factors, among
others, may be considered: (1) threats to human life or health; (2) inequity to present or future
generations; or (3) prejudice to the environment without legal consideration of the environmental rights of
those affected.
Under this Rule, the precautionary principle finds direct application in the evaluation of evidence in cases
before the courts. The precautionary principle bridges the gap in cases where scientific certainty in factual
findings cannot be achieved. By applying the precautionary principle, the court may construe a set of facts
as warranting either judicial action or inaction, with the goal of preserving and protecting the environment.
This may be further evinced from the second paragraph where bias is created in favor of the constitutional
right of the people to a balanced and healthful ecology. In effect, the precautionary principle shifts the
burden of evidence of harm away from those likely to suffer harm and onto those desiring to change the
status quo. An application of the precautionary principle to the rules on evidence will enable courts to
tackle future environmental problems before ironclad scientific consensus emerges. 146
For purposes of evidence, the precautionary principle should be treated as a principle of last resort, where
application of the regular Rules of Evidence would cause in an inequitable result for the environmental
plaintiff
(a) settings in which the risks of harm are uncertain; (b) settings in which harm might be irreversible and
what is lost is irreplaceable; and (c) settings in which the harm that might result would be serious. When
these features
uncertainty, the possibility of irreversible harm, and the possibility of serious harm coincide,
the case for the precautionary principle is strongest. When in doubt, cases must be resolved in favor of the
constitutional right to a balanced and healthful ecology. Parenthetically, judicial adjudication is one of the
strongest fora in which the precautionary principle may find applicability. 147
Assessing the evidence on record, as well as the current state of GMO research worldwide, the Court finds
all the three conditions present in this case - uncertainty, the possibility of irreversible harm and the
possibility of serious harm.
Eggplants (talong) are a staple vegetable in the country and grown by small-scale farmers, majority of
whom are poor and marginalized. While the goal of increasing crop yields to raise farm incomes is
laudable, independent scientific studies revealed uncertainties due to unfulfilled economic benefits
from Btcrops and plants, adverse effects on the environment associated with use of GE technology in
agriculture, and serious health hazards from consumption of GM foods. For a biodiversity-rich country like
the Philippines, the natural and unforeseen consequences of contamination and genetic pollution would be
disastrous and irreversible.

Alongside the aforesaid uncertainties, the non-implementation of the NBF in the crucial stages of risk
assessment and public consultation, including the determination of the applicability of the EIS
requirements to GMO field testing, are compelling reasons for the application of the precautionary
principle. There exists a preponderance of evidence that the release of GMOs into the
environment threatens to damage our ecosystems and not just the field trial sites, and eventually the
health of our people once the Bt eggplants are consumed as food. Adopting the precautionary approach,
the Court rules that the principles of the NBF need to be operationalized first by the coordinated actions of
the concerned departments and agencies before allowing the release into the environment of genetically
modified eggplant. The more prudent course is to immediately enjoin the Bt talong field trials and approval
for its propagation or commercialization until the said government offices shall have performed their
respective mandates to implement the NBF.
We have found the experience of India in the Bt brinjal field trials - for which an indefinite moratorium was
recommended by a Supreme Court-appointed committee till the government fixes regulatory and safety
aspects - as relevant because majority of Filipino farmers are also small-scale farmers. Further, the
precautionary approach entailed inputs from all stakeholders, including the marginalized farmers, not just
the scientific community. This proceeds from the realization that acceptance of uncertainty is not only a
scientific issue, but is related to public policy and involves an ethical dimension. 148 For scientific research
alone will not resolve all the problems, but participation of different stakeholders from scientists to
industry, NGOs, farmers and the public will provide a needed variety of perspective foci, and knowledge. 149
Finally, while the drafters of the NBF saw the need for a law to specifically address the concern for
biosafety arising from the use of modern biotechnology, which is deemed necessary to provide more
permanent rules, institutions, and funding to adequately deal with this challenge, 150 the matter is within
the exclusive prerogative of the legislative branch.
WHEREFORE, the petitions are DENIED. The Decision dated May 17, 2013 of the Court of Appeals in CAG.R. SP No. 00013 is hereby MODIFIED, as follows:chanRoblesvirtualLawlibrary
1. The conduct of the assailed field testing for Bt talong is hereby PERMANENTLY ENJOINED;
2. Department of Agriculture Administrative Order No. 08, series of 2002 is declared NULL AND VOID; and
3. Consequently, any application for contained use, field testing, propagation and commercialization, and
importation of genetically modified organisms isTEMPORARILY ENJOINED until a new administrative
order is promulgated in accordance with law.
No pronouncement as to costs. SO ORDERED.