Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. 159618               February 1, 2011

BAYAN MUNA, as represented by Rep. SATUR OCAMPO, Rep. CRISPIN BELTRAN, and Rep. LIZA L. MAZA, Petitioner, vs.ALBERTO ROMULO, in his capacity as Executive Secretary, and BLAS F. OPLE, in his capacity as Secretary of Foreign Affairs, Respondents.

D E C I S I O N

VELASCO, JR., J.:

The Case

This petition1 for certiorari, mandamus and prohibition under Rule 65 assails and seeks to nullify the Non-Surrender Agreement concluded by and between the Republic of the Philippines (RP) and the United States of America (USA).

The Facts

Petitioner Bayan Muna is a duly registered party-list group established to represent the marginalized sectors of society. Respondent Blas F. Ople, now deceased, was the Secretary of Foreign Affairs during the period material to this case. Respondent Alberto Romulo was impleaded in his capacity as then Executive Secretary.2

Rome Statute of the International Criminal Court

Having a key determinative bearing on this case is the Rome Statute3 establishing the International Criminal Court (ICC) with "the power to exercise its jurisdiction over persons for the most serious crimes of international concern x x x and shall be complementary to the national criminal jurisdictions."4 The serious crimes adverted to cover those considered grave under international law, such as genocide, crimes against humanity, war crimes, and crimes of aggression.5

On December 28, 2000, the RP, through Charge d’Affaires Enrique A. Manalo, signed the Rome Statute which, by its terms, is "subject to ratification, acceptance or approval" by the signatory states.6 As of the filing of the instant petition, only 92 out of the 139 signatory countries appear to have completed the ratification, approval and concurrence process. The Philippines is not among the 92.

RP-US Non-Surrender Agreement

The Issues

I. WHETHER THE [RP] PRESIDENT AND THE [DFA] SECRETARY x x x GRAVELY ABUSED THEIR DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION FOR CONCLUDING THE RP-US NON SURRENDER AGREEMENT BY MEANS OF [E/N] BFO-028-03 DATED 13 MAY 2003, WHEN THE PHILIPPINE GOVERNMENT HAS ALREADY SIGNED THE ROME STATUTE OF THE [ICC] ALTHOUGH THIS IS PENDING RATIFICATION BY THE PHILIPPINE SENATE.

A. Whether by entering into the x x x Agreement Respondents gravely abused their discretion when they capriciously abandoned, waived and relinquished our only legitimate recourse through theRome Statute of the [ICC] to prosecute and try "persons" as defined in the x x x Agreement, x x x or literally any conduit of American interests, who have committed crimes of genocide, crimes against humanity, war crimes and the crime of aggression, thereby abdicating Philippine Sovereignty.

B. Whether after the signing and pending ratification of the Rome Statute of the [ICC] the [RP] President and the [DFA] Secretary x x x are obliged by the principle of good faith to refrain from doing all acts which would substantially impair the value of the undertaking as signed.

C. Whether the x x x Agreement constitutes an act which defeats the object and purpose of theRome Statute of the International Criminal Court and contravenes the obligation of good faith inherent in the signature of the President affixed on the Rome Statute of the International Criminal Court, and if so whether the x x x Agreement is void and unenforceable on this ground.

D. Whether the RP-US Non-Surrender Agreement is void and unenforceable for grave abuse of discretion amounting to lack or excess of jurisdiction in connection with its execution.

II. WHETHER THE RP-US NON SURRENDER AGREEMENT IS VOID AB INITIO FOR CONTRACTING OBLIGATIONS THAT ARE EITHER IMMORAL OR OTHERWISE AT VARIANCE WITH UNIVERSALLY RECOGNIZED PRINCIPLES OF INTERNATIONAL LAW.

III. WHETHER THE x x x AGREEMENT IS VALID, BINDING AND EFFECTIVE WITHOUT THE CONCURRENCE BY AT LEAST TWO-THIRDS (2/3) OF ALL THE MEMBERS OF THE SENATE x x x.11

The foregoing issues may be summarized into two: first, whether or not the Agreement was contracted validly, which resolves itself into the question of whether or not respondents gravely abused their discretion in concluding it; and second, whether or not the Agreement, which has not been submitted to the Senate for concurrence, contravenes and undermines the Rome Statute and other treaties. But because respondents expectedly raised it, we shall first tackle the issue of petitioner’s legal standing.

The Court’s Ruling

This petition is bereft of merit.

Procedural Issue: Locus Standi of Petitioner

Petitioner, through its three party-list representatives, contends that the issue of the validity or invalidity of theAgreement carries with it constitutional significance and is of paramount importance that justifies its standing. Cited in this regard is what is usually referred to as the emergency powers cases,12 in which ordinary citizens and taxpayers were accorded the personality to question the constitutionality of executive issuances.

Locus standi is "a right of appearance in a court of justice on a given question."13 Specifically, it is "a party’s personal and substantial interest in a case where he has sustained or will sustain direct injury as a result" 14 of the act being challenged, and "calls for more than just a generalized grievance."15 The term "interest" refers to material interest, as distinguished from one that is merely incidental.16 The rationale for requiring a party who challenges the validity of a law or international agreement to allege such a personal stake in the outcome of the controversy is "to assure the concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions."17

Locus standi, however, is merely a matter of procedure and it has been recognized that, in some cases, suits are not brought by parties who have been personally injured by the operation of a law or any other government act, but by concerned citizens, taxpayers, or voters who actually sue in the public interest.18 Consequently, in a catena of cases,19 this Court has invariably adopted a liberal stance on locus standi.

Going by the petition, petitioner’s representatives pursue the instant suit primarily as concerned citizens raising issues of transcendental importance, both for the Republic and the citizenry as a whole.

When suing as a citizen to question the validity of a law or other government action, a petitioner needs to meet certain specific requirements before he can be clothed with standing. Francisco, Jr. v. Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc.20 expounded on this requirement, thus:

In a long line of cases, however, concerned citizens, taxpayers and legislators when specific requirements have been met have been given standing by this Court.

When suing as a citizen, the interest of the petitioner assailing the constitutionality of a statute must be direct and personal. He must be able to show, not only that the law or any government act is invalid, but also that he sustained or is in imminent danger of sustaining some direct injury as a result of its enforcement, and not merely that he suffers thereby in some indefinite way. It must appear that the person complaining 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. In fine, when the proceeding involves the assertion of a public right, the mere fact that he is a citizen satisfies the requirement of personal interest.21

In the case at bar, petitioner’s representatives have complied with the qualifying conditions or specific requirements exacted under the locus standi rule. As citizens, their interest in the subject matter of the petition is direct and personal. At the very least, their assertions questioning the Agreement are made of a public right, i.e., to ascertain that the Agreement did not go against established national policies, practices, and obligations bearing on the State’s obligation to the community of nations.

At any event, the primordial importance to Filipino citizens in general of the issue at hand impels the Court to brush aside the procedural barrier posed by the traditional requirement of locus standi, as we have done in a long line of earlier cases, notably in the old but oft-cited emergency powers cases22 and Kilosbayan v. Guingona, Jr.23In cases of transcendental importance, we wrote again in Bayan v. Zamora,24 "The Court may relax the standing requirements and allow a suit to prosper even where there is no direct injury to the party claiming the right of judicial review."

Moreover, bearing in mind what the Court said in Tañada v. Angara, "that it will not shirk, digress from or abandon its sacred duty and authority to uphold the Constitution in matters that involve grave abuse of discretion brought before it in appropriate cases, committed by any officer, agency, instrumentality or department of the government,"25 we cannot but resolve head on the issues raised before us. Indeed, where an action of any branch of government is seriously alleged to have infringed the Constitution or is done with grave abuse of discretion, it becomes not only the right but in fact the duty of the judiciary to settle it. As in this petition, issues are precisely raised putting to the fore the propriety of the Agreement pending the ratification of the Rome Statute.

Validity of the RP-US Non-Surrender Agreement

Petitioner’s initial challenge against the Agreement relates to form, its threshold posture being that E/N BFO-028-03 cannot be a valid medium for concluding the Agreement.

Petitioners’ contention––perhaps taken unaware of certain well-recognized international doctrines, practices, and jargons––is untenable. One of these is the doctrine of incorporation, as expressed in Section 2, Article II of the Constitution, wherein the Philippines adopts the generally accepted principles of international law and international jurisprudence as part of the law of the land and adheres to the policy of peace, cooperation, and amity with all nations.26 An exchange of notes falls "into the category of inter-governmental agreements,"27 which is an internationally accepted form of international agreement. The United Nations Treaty Collections (Treaty Reference Guide) defines the term as follows:

An "exchange of notes" is a record of a routine agreement, that has many similarities with the private law contract. The agreement consists of the exchange of two documents, each of the parties being in the possession of the one signed by the representative of the other. Under the usual procedure, the accepting State repeats the text of the offering State to record its assent. The signatories of the letters may be government Ministers, diplomats or departmental heads. The technique of exchange of notes is frequently resorted to, either because of its speedy procedure, or, sometimes, to avoid the process of legislative approval.28

In another perspective, the terms "exchange of notes" and "executive agreements" have been used interchangeably, exchange of notes being considered a form of executive agreement that becomes binding through executive action.29 On the other hand, executive agreements concluded by the President "sometimes take the form of exchange of notes and at other times that of more formal documents denominated ‘agreements’ or ‘protocols.’"30 As former US High Commissioner to the Philippines Francis B. Sayre observed in his work, The Constitutionality of Trade Agreement Acts:

The point where ordinary correspondence between this and other governments ends and agreements – whether denominated executive agreements or exchange of notes or otherwise – begin, may sometimes be difficult of ready ascertainment.31 x x x

It is fairly clear from the foregoing disquisition that E/N BFO-028-03––be it viewed as the Non-Surrender Agreement itself, or as an integral instrument of acceptance thereof or as consent to be bound––is a recognized mode of concluding a legally binding international written contract among nations.

Senate Concurrence Not Required

Article 2 of the Vienna Convention on the Law of Treaties defines a treaty as "an international agreement concluded between states in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation."32 International agreements may be in the form of (1) treaties that require legislative concurrence after executive ratification; or (2) executive agreements that are similar to treaties, except that they do not require legislative concurrence and are usually less formal and deal with a narrower range of subject matters than treaties.33

Under international law, there is no difference between treaties and executive agreements in terms of their binding effects on the contracting states concerned,34 as long as the negotiating functionaries have remained within their powers.35 Neither, on the domestic sphere, can one be held valid if it violates the Constitution.36Authorities are, however, agreed that one is distinct from another for accepted reasons apart from the concurrence-requirement aspect.37 As has been observed by US constitutional scholars, a treaty has greater "dignity" than an executive agreement, because its constitutional efficacy is beyond doubt, a treaty having behind it the authority of the President, the Senate, and the people;38 a ratified treaty, unlike an executive agreement, takes precedence over any prior statutory enactment.39

Petitioner parlays the notion that the Agreement is of dubious validity, partaking as it does of the nature of a treaty; hence, it must be duly concurred in by the Senate. Petitioner takes a cue from Commissioner of Customs v. Eastern Sea Trading, in which the Court reproduced the following observations made by US legal scholars: "[I]nternational agreements involving political issues or changes of national policy and those involving international arrangements of a permanent character usually take the form of treaties [while] those embodying adjustments of detail carrying out well established national policies and traditions and those involving arrangements of a more or less temporary nature take the form of executive agreements." 40

Pressing its point, petitioner submits that the subject of the Agreement does not fall under any of the subject-categories that are enumerated in the Eastern Sea Trading case, and that may be covered by an executive agreement, such as commercial/consular relations, most-favored nation rights, patent rights, trademark and copyright protection, postal and navigation arrangements and settlement of claims.

In addition, petitioner foists the applicability to the instant case of Adolfo v. CFI of Zambales and Merchant,41holding that an executive agreement through an exchange of notes cannot be used to amend a treaty.

We are not persuaded.

The categorization of subject matters that may be covered by international agreements mentioned in Eastern Sea Trading is not cast in stone. There are no hard and fast rules on the propriety of entering, on a given subject, into a treaty or an executive agreement as an instrument of international relations. The primary consideration in the choice of the form of agreement is the parties’ intent and desire to craft an international agreement in the form they so wish to further their respective interests. Verily, the matter of form takes a back seat when it comes to effectiveness and binding effect of the enforcement of a treaty or an executive agreement, as the parties in either international agreement each labor under the pacta sunt servanda42 principle.

As may be noted, almost half a century has elapsed since the Court rendered its decision in Eastern Sea Trading. Since then, the conduct of foreign affairs has become more complex and the domain of international law wider, as to include such subjects as human rights, the environment, and the sea. In fact, in the US alone, the executive agreements executed by its President from 1980 to 2000 covered subjects such as defense, trade, scientific cooperation, aviation, atomic energy, environmental cooperation, peace corps, arms limitation, and nuclear safety, among others.43 Surely, the enumeration in Eastern Sea Trading cannot circumscribe the option of each state on the matter of which the international agreement format would be convenient to serve its best interest. As Francis Sayre said in his work referred to earlier:

x x x It would be useless to undertake to discuss here the large variety of executive agreements as such concluded from time to time. Hundreds of executive agreements, other than those entered into under the trade-agreement act, have been negotiated with foreign governments. x x x They cover such subjects as the inspection of vessels, navigation dues, income tax on shipping profits, the admission of civil air craft, custom matters and commercial relations generally, international claims, postal matters, the registration of trademarks and copyrights, etc. x x x

And lest it be overlooked, one type of executive agreement is a treaty-authorized44 or a treaty-implementing executive agreement,45 which necessarily would cover the same matters subject of the underlying treaty.

But over and above the foregoing considerations is the fact that––save for the situation and matters contemplated in Sec. 25, Art. XVIII of the Constitution46––when a treaty is required, the Constitution does not classify any subject, like that involving political issues, to be in the form of, and ratified as, a treaty. What the Constitution merely prescribes is that treaties need the concurrence of the Senate by a vote defined therein to complete the ratification process.

Petitioner’s reliance on Adolfo47 is misplaced, said case being inapplicable owing to different factual milieus. There, the Court held that an executive agreement cannot be used to amend a duly ratified and existing treaty, i.e., the Bases Treaty. Indeed, an executive agreement that does not require the concurrence of the Senate for its ratification may not be used to amend a treaty that, under the Constitution, is the product of the ratifying acts of the Executive and the Senate. The presence of a treaty, purportedly being subject to amendment by an executive agreement, does not obtain under the premises.

Considering the above discussion, the Court need not belabor at length the third main issue raised, referring to the validity and effectivity of the Agreement without the concurrence by at least two-thirds of all the members of the Senate. The Court has, in Eastern Sea Trading,48 as reiterated in Bayan,49 given recognition to the obligatory effect of executive agreements without the concurrence of the Senate:

x x x [T]he right of the Executive to enter into binding agreements without the necessity of subsequent Congressional approval has been confirmed by long usage. From the earliest days of our history, we have entered executive agreements covering such subjects as commercial and consular relations, most favored-nation rights, patent rights, trademark and copyright protection, postal and navigation arrangements and the settlement of claims. The validity of these has never been seriously questioned by our courts.

The Agreement Not in Contravention of the Rome Statute

It is the petitioner’s next contention that the Agreement undermines the establishment of the ICC and is null and void insofar as it unduly restricts the ICC’s jurisdiction and infringes upon the effectivity of the Rome Statute. Petitioner posits that the Agreement was constituted solely for the purpose of providing individuals or groups of individuals with immunity from the jurisdiction of the ICC; and such grant of immunity through non-surrender agreements allegedly does not legitimately fall within the scope of Art. 98 of the Rome Statute. It concludes that state parties with non-surrender agreements are prevented from meeting their obligations under the Rome Statute, thereby constituting a breach of Arts. 27,50 86,51 8952 and 9053 thereof.

Petitioner stresses that the overall object and purpose of the Rome Statute is to ensure that those responsible for the worst possible crimes are brought to justice in all cases, primarily by states, but as a last resort, by the ICC; thus, any agreement—like the non-surrender agreement—that precludes the ICC from exercising its complementary function of acting when a state is unable to or unwilling to do so, defeats the object and purpose of the Rome Statute.

Petitioner would add that the President and the DFA Secretary, as representatives of a signatory of the Rome Statute, are obliged by the imperatives of good faith to refrain from performing acts that substantially devalue the purpose and object of the Statute, as signed. Adding a nullifying ingredient to the Agreement, according to petitioner, is the fact that it has an immoral purpose or is otherwise at variance with a priorly executed treaty.

Contrary to petitioner’s pretense, the Agreement does not contravene or undermine, nor does it differ from, the Rome Statute. Far from going against each other, one complements the other. As a matter of fact, the principle of complementarity underpins the creation of the ICC. As aptly pointed out by respondents and admitted by petitioners, the jurisdiction of the ICC is to "be complementary to national criminal jurisdictions [of the signatory states]."54 Art. 1 of the Rome Statute pertinently provides:

Article 1The Court

An International Crimininal Court ("the Court") is hereby established. It x x x shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern, as referred to in this Statute, and shall be complementary to national criminal jurisdictions. The jurisdiction and functioning of the Court shall be governed by the provisions of this Statute. (Emphasis ours.)

Significantly, the sixth preambular paragraph of the Rome Statute declares that "it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes." This provision indicates that primary jurisdiction over the so-called international crimes rests, at the first instance, with the state where the crime was committed; secondarily, with the ICC in appropriate situations contemplated under Art. 17, par. 155 of the Rome Statute.

Of particular note is the application of the principle of ne bis in idem56 under par. 3 of Art. 20, Rome Statute, which again underscores the primacy of the jurisdiction of a state vis-a-vis that of the ICC. As far as relevant, the provision states that "no person who has been tried by another court for conduct x x x [constituting crimes within its jurisdiction] shall be tried by the [International Criminal] Court with respect to the same conduct x x x."

The foregoing provisions of the Rome Statute, taken collectively, argue against the idea of jurisdictional conflict between the Philippines, as party to the non-surrender agreement, and the ICC; or the idea of the Agreement substantially impairing the value of the RP’s undertaking under the Rome Statute. Ignoring for a while the fact that the RP signed the Rome Statute ahead of the Agreement, it is abundantly clear to us that the Rome Statute expressly recognizes the primary jurisdiction of states, like the RP, over serious crimes committed within their respective borders, the complementary jurisdiction of the ICC coming into play only when the signatory states are unwilling or unable to prosecute.

Given the above consideration, petitioner’s suggestion––that the RP, by entering into the Agreement, violated its duty required by the imperatives of good faith and breached its commitment under the Vienna Convention57 to refrain from performing any act tending to impair the value of a treaty, e.g., the Rome Statute––has to be rejected outright. For nothing in the provisions of the Agreement, in relation to the Rome Statute, tends to diminish the efficacy of the Statute, let alone defeats the purpose of the ICC. Lest it be overlooked, the Rome Statute contains a proviso that enjoins the ICC from seeking the surrender of an erring person, should the process require the requested state to perform an act that would violate some international agreement it has entered into. We refer to Art. 98(2) of the Rome Statute, which reads:

Article 98Cooperation with respect to waiver of immunity

and consent to surrender

x x x x

2. The Court may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court, unless the Court can first obtain the cooperation of the sending State for the giving of consent for the surrender.

Moreover, under international law, there is a considerable difference between a State-Party and a signatory to a treaty. Under the Vienna Convention on the Law of Treaties, a signatory state is only obliged to refrain from acts which would defeat the object and purpose of a treaty;58 whereas a State-Party, on the other hand, is legally obliged to follow all the provisions of a treaty in good faith.

In the instant case, it bears stressing that the Philippines is only a signatory to the Rome Statute and not a State-Party for lack of ratification by the Senate. Thus, it is only obliged to refrain from acts which would defeat the object and purpose of the Rome Statute. Any argument obliging the Philippines to follow any provision in the treaty would be premature.

As a result, petitioner’s argument that State-Parties with non-surrender agreements are prevented from meeting their obligations under the Rome Statute, specifically Arts. 27, 86, 89 and 90, must fail. These articles are only legally binding upon State-Parties, not signatories.

Furthermore, a careful reading of said Art. 90 would show that the Agreement is not incompatible with the Rome Statute. Specifically, Art. 90(4) provides that "[i]f the requesting State is a State not Party to this Statute the requested State, if it is not under an international obligation to extradite the person to the requesting State, shall give priority to the request for surrender from the Court. x x x" In applying the provision, certain undisputed facts should be pointed out: first, the US is neither a State-Party nor a signatory to the Rome Statute; and second, there is an international agreement between the US and the Philippines regarding extradition or surrender of persons, i.e., the Agreement. Clearly, even assuming that the Philippines is a State-Party, the Rome Statute still recognizes the primacy of international agreements entered into between States, even when one of the States is not a State-Party to the Rome Statute.

Sovereignty Limited by International Agreements

Petitioner next argues that the RP has, through the Agreement, abdicated its sovereignty by bargaining away the jurisdiction of the ICC to prosecute US nationals, government officials/employees or military personnel who commit serious crimes of international concerns in the Philippines. Formulating petitioner’s argument a bit differently, the RP, by entering into the Agreement, does thereby abdicate its sovereignty, abdication being done by its waiving or abandoning its right to seek recourse through the Rome Statute of the ICC for erring Americans committing international crimes in the country.

We are not persuaded. As it were, the Agreement is but a form of affirmance and confirmance of the Philippines’ national criminal jurisdiction. National criminal jurisdiction being primary, as explained above, it is always the responsibility and within the prerogative of the RP either to prosecute criminal offenses equally covered by the Rome Statute or to accede to the jurisdiction of the ICC. Thus, the Philippines may decide to try "persons" of the US, as the term is understood in the Agreement, under our national criminal justice system. Or it may opt not to exercise its criminal jurisdiction over its erring citizens or over US "persons" committing high crimes in the country and defer to the secondary criminal jurisdiction of the ICC over them. As to "persons" of the US whom the Philippines refuses to prosecute, the country would, in effect, accord discretion to the US to exercise either its national criminal jurisdiction over the "person" concerned or to give its consent to the referral of the matter to the ICC for trial. In the same breath, the US must extend the same privilege to the Philippines with respect to "persons" of the RP committing high crimes within US territorial jurisdiction.

In the context of the Constitution, there can be no serious objection to the Philippines agreeing to undertake the things set forth in the Agreement. Surely, one State can agree to waive jurisdiction—to the extent agreed upon—to subjects of another State due to the recognition of the principle of extraterritorial immunity. What the Court wrote in Nicolas v. Romulo59—a case involving the implementation of the criminal jurisdiction provisions of the RP-US Visiting Forces Agreement—is apropos:

Nothing in the Constitution prohibits such agreements recognizing immunity from jurisdiction or some aspects of jurisdiction (such as custody), in relation to long-recognized subjects of such immunity like Heads of State, diplomats and members of the armed forces contingents of a foreign State allowed to enter another State’s territory. x x x

To be sure, the nullity of the subject non-surrender agreement cannot be predicated on the postulate that some of its provisions constitute a virtual abdication of its sovereignty. Almost every time a state enters into an international agreement, it voluntarily sheds off part of its sovereignty. The Constitution, as drafted, did not envision a reclusive Philippines isolated from the rest of the world. It even adheres, as earlier stated, to the policy of cooperation and amity with all nations.60

By their nature, treaties and international agreements actually have a limiting effect on the otherwise encompassing and absolute nature of sovereignty. By their voluntary act, nations may decide to surrender or waive some aspects of their state power or agree to limit the exercise of their otherwise exclusive and absolute jurisdiction. The usual underlying consideration in this partial surrender may be the greater benefits derived from a pact or a reciprocal undertaking of one contracting party to grant the same privileges or immunities to the other. On the rationale that the Philippines has adopted the generally accepted principles of international law as part of the law of the land, a portion of sovereignty may be waived without violating the Constitution.61 Such waiver does not amount to an unconstitutional diminution or deprivation of jurisdiction of Philippine courts.62

Agreement Not Immoral/Not at Variancewith Principles of International Law

Petitioner urges that the Agreement be struck down as void ab initio for imposing immoral obligations and/or being at variance with allegedly universally recognized principles of international law. The immoral aspect proceeds from the fact that the Agreement, as petitioner would put it, "leaves criminals immune from responsibility for unimaginable atrocities that deeply shock the conscience of humanity; x x x it precludes our country from delivering an American criminal to the [ICC] x x x."63

The above argument is a kind of recycling of petitioner’s earlier position, which, as already discussed, contends that the RP, by entering into the Agreement, virtually abdicated its sovereignty and in the process undermined its treaty obligations under the Rome Statute, contrary to international law principles.64

The Court is not persuaded. Suffice it to state in this regard that the non-surrender agreement, as aptly described by the Solicitor General, "is an assertion by the Philippines of its desire to try and punish crimes under its national law. x x x The agreement is a recognition of the primacy and competence of the country’s judiciary to try offenses under its national criminal laws and dispense justice fairly and judiciously."

Petitioner, we believe, labors under the erroneous impression that the Agreement would allow Filipinos and Americans committing high crimes of international concern to escape criminal trial and punishment. This is manifestly incorrect. Persons who may have committed acts penalized under the Rome Statute can be prosecuted and punished in the Philippines or in the US; or with the consent of the RP or the US, before the ICC, assuming, for the nonce, that all the formalities necessary to bind both countries to the Rome Statute have been met. For perspective, what the Agreement contextually prohibits is the surrender by either party of individuals to international tribunals, like the ICC, without the consent of the other party, which may desire to prosecute the crime under its existing laws. With the view we take of things, there is nothing immoral or violative of international law concepts in the act of the Philippines of assuming criminal jurisdiction pursuant to the non-surrender agreement over an offense considered criminal by both Philippine laws and the Rome Statute.

No Grave Abuse of Discretion

Petitioner’s final point revolves around the necessity of the Senate’s concurrence in the Agreement. And without specifically saying so, petitioner would argue that the non-surrender agreement was executed by the President, thru the DFA Secretary, in grave abuse of discretion.

The Court need not delve on and belabor the first portion of the above posture of petitioner, the same having been discussed at length earlier on. As to the second portion, We wish to state that petitioner virtually faults the President for performing, through respondents, a task conferred the President by the Constitution—the power to enter into international agreements.

By constitutional fiat and by the nature of his or her office, the President, as head of state and government, is the sole organ and authority in the external affairs of the country.65 The Constitution vests in the President the power to enter into international agreements, subject, in appropriate cases, to the required concurrence votes of the Senate. But as earlier indicated, executive agreements may be validly entered into without such concurrence. As the President wields vast powers and influence, her conduct in the external affairs of the nation is, as Bayan would put it, "executive altogether." The right of the President to enter into or ratify binding executive agreements has been confirmed by long practice.66

In thus agreeing to conclude the Agreement thru E/N BFO-028-03, then President Gloria Macapagal-Arroyo, represented by the Secretary of Foreign Affairs, acted within the scope of the authority and discretion vested in her by the Constitution. At the end of the day, the President––by ratifying, thru her deputies, the non-surrender agreement––did nothing more than discharge a constitutional duty and exercise a prerogative that pertains to her office.

While the issue of ratification of the Rome Statute is not determinative of the other issues raised herein, it may perhaps be pertinent to remind all and sundry that about the time this petition was interposed, such issue of ratification was laid to rest in Pimentel, Jr. v. Office of the Executive Secretary.67 As the Court emphasized in said case, the power to ratify a treaty, the Statute in that instance, rests with the President, subject to the concurrence of the Senate, whose role relative to the ratification of a treaty is limited merely to concurring in or withholding the ratification. And concomitant with this treaty-making power of the President is his or her prerogative to refuse to submit a treaty to the Senate; or having secured the latter’s consent to the ratification of the treaty, refuse to ratify it.68 This prerogative, the Court hastened to add, is the President’s alone and cannot be encroached upon via a writ of mandamus. Barring intervening events, then, the Philippines remains to be just a signatory to the Rome Statute. Under Art. 12569 thereof, the final acts required to complete the treaty process and, thus, bring it into force, insofar as the Philippines is concerned, have yet to be done.

Agreement Need Not Be in the Form of a Treaty

On December 11, 2009, then President Arroyo signed into law Republic Act No. (RA) 9851, otherwise known as the "Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity." Sec. 17 of RA 9851, particularly the second paragraph thereof, provides:

Section 17. Jurisdiction. – x x x x

In the interest of justice, the relevant Philippine authorities may dispense with the investigation or prosecution of a crime punishable under this Act if another court or international tribunal is already conducting the investigation or undertaking

the prosecution of such crime. Instead, the authorities may surrender or extradite suspected or accused persons in the Philippines to the appropriate international court, if any, or to another State pursuant to the applicable extradition laws and treaties. (Emphasis supplied.)

A view is advanced that the Agreement amends existing municipal laws on the State’s obligation in relation to grave crimes against the law of nations, i.e., genocide, crimes against humanity and war crimes. Relying on the above-quoted statutory proviso, the view posits that the Philippine is required to surrender to the proper international tribunal those persons accused of the grave crimes defined under RA 9851, if it does not exercise its primary jurisdiction to prosecute them.

The basic premise rests on the interpretation that if it does not decide to prosecute a foreign national for violations of RA 9851, the Philippines has only two options, to wit: (1) surrender the accused to the proper international tribunal; or (2) surrender the accused to another State if such surrender is "pursuant to the applicable extradition laws and treaties." But the Philippines may exercise these options only in cases where "another court or international tribunal is already conducting the investigation or undertaking the prosecution of such crime;" otherwise, the Philippines must prosecute the crime before its own courts pursuant to RA 9851.

Posing the situation of a US national under prosecution by an international tribunal for any crime under RA 9851, the Philippines has the option to surrender such US national to the international tribunal if it decides not to prosecute such US national here. The view asserts that this option of the Philippines under Sec. 17 of RA 9851 is not subject to the consent of the US, and any derogation of Sec. 17 of RA 9851, such as requiring the consent of the US before the Philippines can exercise such option, requires an amendatory law. In line with this scenario, the view strongly argues that the Agreement prevents the Philippines—without the consent of the US—from surrendering to any international tribunal US nationals accused of crimes covered by RA 9851, and, thus, in effect amends Sec. 17 of RA 9851. Consequently, the view is strongly impressed that the Agreement cannot be embodied in a simple executive agreement in the form of an exchange of notes but must be implemented through an extradition law or a treaty with the corresponding formalities.

Moreover, consonant with the foregoing view, citing Sec. 2, Art. II of the Constitution, where the Philippines adopts, as a national policy, the "generally accepted principles of international law as part of the law of the land," the Court is further impressed to perceive the Rome Statute as declaratory of customary international law. In other words, the Statute embodies principles of law which constitute customary international law or custom and for which reason it assumes the status of an enforceable domestic law in the context of the aforecited constitutional provision. As a corollary, it is argued that any derogation from the Rome Statute principles cannot be undertaken via a mere executive agreement, which, as an exclusive act of the executive branch, can only implement, but cannot amend or repeal, an existing law. The Agreement, so the argument goes, seeks to frustrate the objects of the principles of law or alters customary rules embodied in the Rome Statute.

Prescinding from the foregoing premises, the view thus advanced considers the Agreement inefficacious, unless it is embodied in a treaty duly ratified with the concurrence of the Senate, the theory being that a Senate- ratified treaty partakes of the nature of a municipal law that can amend or supersede another law, in this instance Sec. 17 of RA 9851 and the status of the Rome Statute as constitutive of enforceable domestic law under Sec. 2, Art. II of the Constitution.

We are unable to lend cogency to the view thus taken. For one, we find that the Agreement does not amend or is repugnant to RA 9851. For another, the view does not clearly state what precise principles of law, if any, theAgreement alters. And for a third, it does not demonstrate in the concrete how the Agreement seeks to frustrate the objectives of the principles of law subsumed in the Rome Statute.

Far from it, as earlier explained, the Agreement does not undermine the Rome Statute as the former merely reinforces the primacy of the national jurisdiction of the US and the Philippines in prosecuting criminal offenses committed by their respective citizens and military personnel, among others. The jurisdiction of the ICC pursuant to the Rome Statute over high crimes indicated thereat is clearly and unmistakably complementary to the national criminal jurisdiction of the signatory states.

Moreover, RA 9851 clearly: (1) defines and establishes the crimes against international humanitarian law, genocide and other crimes against humanity;70 (2) provides penal sanctions and criminal liability for their commission;71 and (3) establishes special courts for the prosecution of these crimes and for the State to exercise primary criminal jurisdiction.72 Nowhere in RA 9851 is there a proviso that goes against the tenor of theAgreement.

The view makes much of the above quoted second par. of Sec. 17, RA 9851 as requiring the Philippine State to surrender to the proper international tribunal those persons accused of crimes sanctioned under said law if it does not

exercise its primary jurisdiction to prosecute such persons. This view is not entirely correct, for the above quoted proviso clearly provides discretion to the Philippine State on whether to surrender or not a person accused of the crimes under RA 9851. The statutory proviso uses the word "may." It is settled doctrine in statutory construction that the word "may" denotes discretion, and cannot be construed as having mandatory effect.73 Thus, the pertinent second pararagraph of Sec. 17, RA 9851 is simply permissive on the part of the Philippine State.1avvphi1

Besides, even granting that the surrender of a person is mandatorily required when the Philippines does not exercise its primary jurisdiction in cases where "another court or international tribunal is already conducting the investigation or undertaking the prosecution of such crime," still, the tenor of the Agreement is not repugnant to Sec. 17 of RA 9851. Said legal proviso aptly provides that the surrender may be made "to another State pursuant to the applicable extradition laws and treaties." The Agreement can already be considered a treaty following this Court’s decision in Nicolas v. Romulo74 which cited Weinberger v. Rossi.75 In Nicolas, We held that "an executive agreement is a ‘treaty’ within the meaning of that word in international law and constitutes enforceable domestic law vis-à-vis the United States."76

Likewise, the Philippines and the US already have an existing extradition treaty, i.e., RP-US Extradition Treaty, which was executed on November 13, 1994. The pertinent Philippine law, on the other hand, is Presidential Decree No. 1069, issued on January 13, 1977. Thus, the Agreement, in conjunction with the RP-US Extradition Treaty, would neither violate nor run counter to Sec. 17 of RA 9851.

The view’s reliance on Suplico v. Neda77 is similarly improper. In that case, several petitions were filed questioning the power of the President to enter into foreign loan agreements. However, before the petitions could be resolved by the Court, the Office of the Solicitor General filed a Manifestation and Motion averring that the Philippine Government decided not to continue with the ZTE National Broadband Network Project, thus rendering the petition moot. In resolving the case, the Court took judicial notice of the act of the executive department of the Philippines (the President) and found the petition to be indeed moot. Accordingly, it dismissed the petitions.

In his dissent in the abovementioned case, Justice Carpio discussed the legal implications of an executive agreement. He stated that "an executive agreement has the force and effect of law x x x [it] cannot amend or repeal prior laws."78 Hence, this argument finds no application in this case seeing as RA 9851 is a subsequent law, not a prior one. Notably, this argument cannot be found in the ratio decidendi of the case, but only in the dissenting opinion.

The view further contends that the RP-US Extradition Treaty is inapplicable to RA 9851 for the reason that under par. 1, Art. 2 of the RP-US Extradition Treaty, "[a]n offense shall be an extraditable offense if it is punishable under the laws in both Contracting Parties x x x,"79 and thereby concluding that while the Philippines has criminalized under RA 9851 the acts defined in the Rome Statute as war crimes, genocide and other crimes against humanity, there is no similar legislation in the US. It is further argued that, citing U.S. v. Coolidge, in the US, a person cannot be tried in the federal courts for an international crime unless Congress adopts a law defining and punishing the offense.

This view must fail.

On the contrary, the US has already enacted legislation punishing the high crimes mentioned earlier. In fact, as early as October 2006, the US enacted a law criminalizing war crimes. Section 2441, Chapter 118, Part I, Title 18 of the United States Code Annotated (USCA) provides for the criminal offense of "war crimes" which is similar to the war crimes found in both the Rome Statute and RA 9851, thus:

(a) Offense – Whoever, whether inside or outside the United States, commits a war crime, in any of the circumstances described in subsection (b), shall be fined under this title or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death.

(b) Circumstances – The circumstances referred to in subsection (a) are that the person committing such war crime or the victim of such war crime is a member of the Armed Forces of the United States or a national of the United States (as defined in Section 101 of the Immigration and Nationality Act).

(c) Definition – As used in this Section the term "war crime" means any conduct –

(1) Defined as a grave breach in any of the international conventions signed at Geneva 12 August 1949, or any protocol to such convention to which the United States is a party;

(2) Prohibited by Article 23, 25, 27 or 28 of the Annex to the Hague Convention IV, Respecting the Laws and Customs of War on Land, signed 18 October 1907;

(3) Which constitutes a grave breach of common Article 3 (as defined in subsection [d]) when committed in the context of and in association with an armed conflict not of an international character; or

(4) Of a person who, in relation to an armed conflict and contrary to the provisions of the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended at Geneva on 3 May 1996 (Protocol II as amended on 3 May 1996), when the United States is a party to such Protocol, willfully kills or causes serious injury to civilians.801avvphi1

Similarly, in December 2009, the US adopted a law that criminalized genocide, to wit:

§1091. Genocide

(a) Basic Offense – Whoever, whether in the time of peace or in time of war and with specific intent to destroy, in whole or in substantial part, a national, ethnic, racial or religious group as such–

(1) kills members of that group;

(2) causes serious bodily injury to members of that group;

(3) causes the permanent impairment of the mental faculties of members of the group through drugs, torture, or similar techniques;

(4) subjects the group to conditions of life that are intended to cause the physical destruction of the group in whole or in part;

(5) imposes measures intended to prevent births within the group; or

(6) transfers by force children of the group to another group;

shall be punished as provided in subsection (b).81

Arguing further, another view has been advanced that the current US laws do not cover every crime listed within the jurisdiction of the ICC and that there is a gap between the definitions of the different crimes under the US laws versus the Rome Statute. The view used a report written by Victoria K. Holt and Elisabeth W. Dallas, entitled "On Trial: The US Military and the International Criminal Court," as its basis.

At the outset, it should be pointed out that the report used may not have any weight or value under international law. Article 38 of the Statute of the International Court of Justice (ICJ) lists the sources of international law, as follows: (1) international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; (2) international custom, as evidence of a general practice accepted as law; (3) the general principles of law recognized by civilized nations; and (4) subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. The report does not fall under any of the foregoing enumerated sources. It cannot even be considered as the "teachings of highly qualified publicists." A highly qualified publicist is a scholar of public international law and the term usually refers to legal scholars or "academic writers."82 It has not been shown that the authors83 of this report are highly qualified publicists.

Assuming arguendo that the report has weight, still, the perceived gaps in the definitions of the crimes are nonexistent. To highlight, the table below shows the definitions of genocide and war crimes under the Rome Statute vis-à-vis the definitions under US laws:

Rome Statute US Law

Article 6Genocide

For the purpose of this Statute, "genocide" means any of the following acts committed with intent to destroy, in whole or in part, a national,

§1091. Genocide

(a) Basic Offense – Whoever, whether in the time of peace or in time of war and with specific intent to destroy, in whole or in substantial part, a national,

ethnical, racial or religious group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group.

ethnic, racial or religious group as such–

(1) kills members of that group;

(2) causes serious bodily injury to members of that group;

(3) causes the permanent impairment of the mental faculties of members of the group through drugs, torture, or similar techniques;

(4) subjects the group to conditions of life that are intended to cause the physical destruction of the group in whole or in part;

(5) imposes measures intended to prevent births within the group; or

(6) transfers by force children of the group to another group;

shall be punished as provided in subsection (b).

(a) Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention: x x x84

(b) Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts:

x x x x

(c) In the case of an armed conflict not of an international character, serious violations of article 3 common to the four Geneva Conventions of 12 August 1949, namely, any of the following acts committed

(d) Definition – As used in this Section the term "war crime" means any conduct –

(1) Defined as a grave breach in any of the international conventions signed at Geneva 12 August 1949, or any protocol to such convention to which the United States is a party;

(2) Prohibited by Article 23, 25, 27 or 28 of the Annex to the Hague Convention IV, Respecting the Laws and Customs of War on Land, signed 18 October 1907;

(3) Which constitutes a grave breach of common Article 3 (as defined in subsection [d]85) when committed in the context of and in association with an armed conflict not of an international character; or

(4) Of a person who, in relation to an armed conflict and contrary to the provisions of the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other

against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause:

x x x x

(d) Paragraph 2 (c) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature.

(e) Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, any of the following acts: x x x.

Devices as amended at Geneva on 3 May 1996 (Protocol II as amended on 3 May 1996), when the United States is a party to such Protocol, willfully kills or causes serious injury to civilians.86

Evidently, the gaps pointed out as to the definition of the crimes are not present. In fact, the report itself stated as much, to wit:

Few believed there were wide differences between the crimes under the jurisdiction of the Court and crimes within the Uniform Code of Military Justice that would expose US personnel to the Court. Since US military lawyers were instrumental in drafting the elements of crimes outlined in the Rome Statute, they ensured that most of the crimes were consistent with those outlined in the UCMJ and gave strength to complementarity for the US. Small areas of potential gaps between the UCMJ and the Rome Statute, military experts argued, could be addressed through existing military laws.87 x x x

The report went on further to say that "[a]ccording to those involved, the elements of crimes laid out in the Rome Statute have been part of US military doctrine for decades."88 Thus, the argument proffered cannot stand.

Nonetheless, despite the lack of actual domestic legislation, the US notably follows the doctrine of incorporation. As early as 1900, the esteemed Justice Gray in The Paquete Habana89 case already held international law as part of the law of the US, to wit:

International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction as often as questions of right depending upon it are duly presented for their determination. For this purpose, where there is no treaty and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations, and, as evidence of these, to the works of jurists and commentators who by years of labor, research, and experience have made themselves peculiarly well acquainted with the subjects of which they treat. Such works are resorted to by judicial tribunals, not for the speculations of their authors concerning what the law ought to be, but for the trustworthy evidence of what the law really is.90(Emphasis supplied.)

Thus, a person can be tried in the US for an international crime despite the lack of domestic legislation. The cited ruling in U.S. v. Coolidge,91 which in turn is based on the holding in U.S. v. Hudson,92 only applies to common law and not to the law of nations or international law.93 Indeed, the Court in U.S. v. Hudson only considered the question, "whether the

Circuit Courts of the United States can exercise a common law jurisdiction in criminal cases."94 Stated otherwise, there is no common law crime in the US but this is considerably different from international law.

The US doubtless recognizes international law as part of the law of the land, necessarily including international crimes, even without any local statute.95 In fact, years later, US courts would apply international law as a source of criminal liability despite the lack of a local statute criminalizing it as such. So it was that in Ex Parte Quirin96 the US Supreme Court noted that "[f]rom the very beginning of its history this Court has recognized and applied the law of war as including that part of the law of nations which prescribes, for the conduct of war, the status, rights and duties of enemy nations as well as of enemy individuals."97 It went on further to explain that Congress had not undertaken the task of codifying the specific offenses covered in the law of war, thus:

It is no objection that Congress in providing for the trial of such offenses has not itself undertaken to codify that branch of international law or to mark its precise boundaries, or to enumerate or define by statute all the acts which that law condemns. An Act of Congress punishing ‘the crime of piracy as defined by the law of nations is an appropriate exercise of its constitutional authority, Art. I, s 8, cl. 10, ‘to define and punish’ the offense since it has adopted by reference the sufficiently precise definition of international law. x x x Similarly by the reference in the 15th Article of War to ‘offenders or offenses that x x x by the law of war may be triable by such military commissions. Congress has incorporated by reference, as within the jurisdiction of military commissions, all offenses which are defined as such by the law of war x x x, and which may constitutionally be included within that jurisdiction.98 x x x (Emphasis supplied.)

This rule finds an even stronger hold in the case of crimes against humanity. It has been held that genocide, war crimes and crimes against humanity have attained the status of customary international law. Some even go so far as to state that these crimes have attained the status of jus cogens.99

Customary international law or international custom is a source of international law as stated in the Statute of the ICJ.100 It is defined as the "general and consistent practice of states recognized and followed by them from a sense of legal obligation."101 In order to establish the customary status of a particular norm, two elements must concur: State practice, the objective element; and opinio juris sive necessitates, the subjective element.102

State practice refers to the continuous repetition of the same or similar kind of acts or norms by States. 103 It is demonstrated upon the existence of the following elements: (1) generality; (2) uniformity and consistency; and (3) duration.104 While, opinio juris, the psychological element, requires that the state practice or norm "be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it."105

"The term ‘jus cogens’ means the ‘compelling law.’"106 Corollary, "a jus cogens norm holds the highest hierarchical position among all other customary norms and principles."107 As a result, jus cogens norms are deemed "peremptory and non-derogable."108 When applied to international crimes, "jus cogens crimes have been deemed so fundamental to the existence of a just international legal order that states cannot derogate from them, even by agreement."109

These jus cogens crimes relate to the principle of universal jurisdiction, i.e., "any state may exercise jurisdiction over an individual who commits certain heinous and widely condemned offenses, even when no other recognized basis for jurisdiction exists."110 "The rationale behind this principle is that the crime committed is so egregious that it is considered to be committed against all members of the international community"111 and thus granting every State jurisdiction over the crime.112

Therefore, even with the current lack of domestic legislation on the part of the US, it still has both the doctrine of incorporation and universal jurisdiction to try these crimes.

Consequently, no matter how hard one insists, the ICC, as an international tribunal, found in the Rome Statute is not declaratory of customary international law.

The first element of customary international law, i.e., "established, widespread, and consistent practice on the part of States,"113 does not, under the premises, appear to be obtaining as reflected in this simple reality: As of October 12, 2010, only 114114 States have ratified the Rome Statute, subsequent to its coming into force eight (8) years earlier, or on July 1, 2002. The fact that 114 States out of a total of 194115 countries in the world, or roughly 58.76%, have ratified the Rome Statute casts doubt on whether or not the perceived principles contained in the Statute have attained the status of customary law and should be deemed as obligatory international law. The numbers even tend to argue against the urgency of establishing international criminal courts envisioned in the Rome Statute. Lest it be overlooked, the Philippines, judging by the action or inaction of its top officials, does not even feel bound by the Rome Statute. Res ipsa loquitur. More

than eight (8) years have elapsed since the Philippine representative signed the Statute, but the treaty has not been transmitted to the Senate for the ratification process.

And this brings us to what Fr. Bernas, S.J. aptly said respecting the application of the concurring elements, thus:

Custom or customary international law means "a general and consistent practice of states followed by them from a sense of legal obligation [opinio juris] x x x." This statement contains the two basic elements of custom: the material factor, that is how the states behave, and the psychological factor or subjective factor, that is, why they behave the way they do.

x x x x

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

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

x x x x

Duration therefore is not the most important element. More important is the consistency and the generality of the practice. x x x

x x x x

Once the existence of state practice has been established, it becomes necessary to determine why states behave the way they do. Do states behave the way they do because they consider it obligatory to behave thus or do they do it only as a matter of courtesy? Opinio juris, or the belief that a certain form of behavior is obligatory, is what makes practice an international rule. Without it, practice is not law.116 (Emphasis added.)

Evidently, there is, as yet, no overwhelming consensus, let alone prevalent practice, among the different countries in the world that the prosecution of internationally recognized crimes of genocide, etc. should be handled by a particular international criminal court.

Absent the widespread/consistent-practice-of-states factor, the second or the psychological element must be deemed non-existent, for an inquiry on why states behave the way they do presupposes, in the first place, that they are actually behaving, as a matter of settled and consistent practice, in a certain manner. This implicitly requires belief that the practice in question is rendered obligatory by the existence of a rule of law requiring it.117Like the first element, the second element has likewise not been shown to be present.

Further, the Rome Statute itself rejects the concept of universal jurisdiction over the crimes enumerated therein as evidenced by it requiring State consent.118 Even further, the Rome Statute specifically and unequivocally requires that: "This Statute is subject to ratification, acceptance or approval by signatory States."119 These clearly negate the argument that such has already attained customary status.

More importantly, an act of the executive branch with a foreign government must be afforded great respect. The power to enter into executive agreements has long been recognized to be lodged with the President. As We held in Neri v. Senate Committee on Accountability of Public Officers and Investigations, "[t]he power to enter into an executive agreement is in essence an executive power. This authority of the President to enter into executive agreements without the concurrence of the Legislature has traditionally been recognized in Philippine jurisprudence."120 The rationale behind this principle is the inviolable doctrine of separation of powers among the legislative, executive and judicial branches of the government. Thus, absent any clear contravention of the law, courts should exercise utmost caution in declaring any executive agreement invalid.

In light of the above consideration, the position or view that the challenged RP-US Non-Surrender Agreement ought to be in the form of a treaty, to be effective, has to be rejected.

WHEREFORE, the petition for certiorari, mandamus and prohibition is hereby DISMISSED for lack of merit. No costs.

SO ORDERED.

PRESBITERO J. VELASCO, JR.Associate Justice

Republic of the PhilippinesSUPREME COURT

EN BANC

G.R. No. 158088 July 6, 2005

SENATOR AQUILINO PIMENTEL, JR., REP. ETTA ROSALES, PHILIPPINE COALITION FOR THE ESTABLISHMENT OF THE INTERNATIONAL CRIMINAL COURT, TASK FORCE DETAINEES OF THE PHILIPPINES, FAMILIES OF VICTIMS OF INVOLUNTARY DISAPPEARANCES, BIANCA HACINTHA R. ROQUE, HARRISON JACOB R. ROQUE, AHMED PAGLINAWAN, RON P. SALO,* LEAVIDES G. DOMINGO, EDGARDO CARLO VISTAN, NOEL VILLAROMAN, CELESTE CEMBRANO, LIZA ABIERA, JAIME ARROYO, MARWIL LLASOS, CRISTINA ATENDIDO, ISRAFEL FAGELA, and ROMEL BAGARES, Petitioners, vs.OFFICE OF THE EXECUTIVE SECRETARY, HON. ALBERTO ROMULO, and the DEPARTMENT OF FOREIGN AFFAIRS, represented by HON. BLAS OPLE, Respondents.

D E C I S I O N

PUNO J.:

This is a petition for mandamus filed by petitioners to compel the Office of the Executive Secretary and the Department of Foreign Affairs to transmit the signed copy of the Rome Statute of the International Criminal Court to the Senate of the Philippines for its concurrence in accordance with Section 21, Article VII of the 1987 Constitution.

The Rome Statute established the International Criminal Court which "shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern xxx and shall be complementary to the national criminal jurisdictions."1 Its jurisdiction covers the crime of genocide, crimes against humanity, war crimes and the crime of aggression as defined in the Statute.2 The Statute was opened for signature by all states in Rome on July 17, 1998 and had remained open for signature until December 31, 2000 at the United Nations Headquarters in New York. The Philippines signed the Statute on December 28, 2000 through Charge d’ AffairsEnrique A. Manalo of the Philippine Mission to the United Nations.3 Its provisions, however, require that it be subject to ratification, acceptance or approval of the signatory states.4

Petitioners filed the instant petition to compel the respondents — the Office of the Executive Secretary and the Department of Foreign Affairs — to transmit the signed text of the treaty to the Senate of the Philippines for ratification.

It is the theory of the petitioners that ratification of a treaty, under both domestic law and international law, is a function of the Senate. Hence, it is the duty of the executive department to transmit the signed copy of the Rome Statute to the Senate to allow it to exercise its discretion with respect to ratification of treaties. Moreover, petitioners submit that the Philippines has a ministerial duty to ratify the Rome Statute under treaty law and customary international law. Petitioners invoke the Vienna Convention on the Law of Treaties enjoining the states to refrain from acts which would defeat the object and purpose of a treaty when they have signed the treaty prior to ratification unless they have made their intention clear not to become parties to the treaty.5

The Office of the Solicitor General, commenting for the respondents, questioned the standing of the petitioners to file the instant suit. It also contended that the petition at bar violates the rule on hierarchy of courts. On the substantive issue raised by petitioners, respondents argue that the executive department has no duty to transmit the Rome Statute to the Senate for concurrence.

A petition for mandamus may be filed 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.6We have held that to be given due course, a petition for mandamus must have been instituted by a party aggrieved by the alleged

inaction of any tribunal, corporation, board or person which unlawfully excludes said party from the enjoyment of a legal right. The petitioner in every case must therefore be an aggrieved party in the sense that he possesses a clear legal right to be enforced and a direct interest in the duty or act to be performed.7 The Court will exercise its power of judicial review only if the case is brought before it by a party who has the legal standing to raise the constitutional or legal question. "Legal standing" means a personal and substantial interest in the case such that the party has sustained or will sustain direct injury as a result of the government act that is being challenged. The term "interest" is material interest, an interest in issue and to be affected by the decree, as distinguished from mere interest in the question involved, or a mere incidental interest.8

The petition at bar was filed by Senator Aquilino Pimentel, Jr. who asserts his legal standing to file the suit as member of the Senate; Congresswoman Loretta Ann Rosales, a member of the House of Representatives and Chairperson of its Committee on Human Rights; the Philippine Coalition for the Establishment of the International Criminal Court which is composed of individuals and corporate entities dedicated to the Philippine ratification of the Rome Statute; the Task Force Detainees of the Philippines, a juridical entity with the avowed purpose of promoting the cause of human rights and human rights victims in the country; the Families of Victims of Involuntary Disappearances, a juridical entity duly organized and existing pursuant to Philippine Laws with the avowed purpose of promoting the cause of families and victims of human rights violations in the country; Bianca Hacintha Roque and Harrison Jacob Roque, aged two (2) and one (1), respectively, at the time of filing of the instant petition, and suing under the doctrine of inter-generational rights enunciated in the case of Oposa vs. Factoran, Jr.;9 and a group of fifth year working law students from the University of the Philippines College of Law who are suing as taxpayers.

The question in standing is whether a party has alleged 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.10

We find that among the petitioners, only Senator Pimentel has the legal standing to file the instant suit. The other petitioners maintain their standing as advocates and defenders of human rights, and as citizens of the country. They have not shown, however, that they have sustained or will sustain a direct injury from the non-transmittal of the signed text of the Rome Statute to the Senate. Their contention that they will be deprived of their remedies for the protection and enforcement of their rights does not persuade. The Rome Statute is intended to complement national criminal laws and courts. Sufficient remedies are available under our national laws to protect our citizens against human rights violations and petitioners can always seek redress for any abuse in our domestic courts.

As regards Senator Pimentel, it has been held that "to the extent the powers of Congress are impaired, so is the power of each member thereof, since his office confers a right to participate in the exercise of the powers of that institution."11 Thus, legislators have the standing to maintain inviolate the prerogatives, powers and privileges vested by the Constitution in their office and are allowed to sue to question the validity of any official action which they claim infringes their prerogatives as legislators. The petition at bar invokes the power of the Senate to grant or withhold its concurrence to a treaty entered into by the executive branch, in this case, the Rome Statute. The petition seeks to order the executive branch to transmit the copy of the treaty to the Senate to allow it to exercise such authority. Senator Pimentel, as member of the institution, certainly has the legal standing to assert such authority of the Senate.

We now go to the substantive issue.

The core issue in this petition for mandamus is whether the Executive Secretary and the Department of Foreign Affairs have a ministerial duty to transmit to the Senate the copy of the Rome Statute signed by a member of the Philippine Mission to the United Nations even without the signature of the President.

We rule in the negative.

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.12 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.13 In the realm of treaty-making, the President has the sole authority to negotiate with other states.

Nonetheless, while the President has the sole authority to negotiate and enter into treaties, the Constitution provides a limitation to his power by requiring the concurrence of 2/3 of all the members of the Senate for the validity of the treaty entered into by him. Section 21, Article VII of the 1987 Constitution provides that "no treaty or international agreement

shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate." The 1935 and the 1973 Constitution also required the concurrence by the legislature to the treaties entered into by the executive. Section 10 (7), Article VII of the 1935 Constitution provided:

Sec. 10. (7) The President shall have the power, with the concurrence of two-thirds of all the Members of the Senate, to make treaties xxx.

Section 14 (1) Article VIII of the 1973 Constitution stated:

Sec. 14. (1) Except as otherwise provided in this Constitution, no treaty shall be valid and effective unless concurred in by a majority of all the Members of the Batasang Pambansa.

The participation of the legislative branch in the treaty-making process was deemed essential to provide a check on the executive in the field of foreign relations.14 By requiring the concurrence of the legislature in the treaties entered into by the President, the Constitution ensures a healthy system of checks and balance necessary in the nation’s pursuit of political maturity and growth.15

In filing this petition, the petitioners interpret Section 21, Article VII of the 1987 Constitution to mean that the power to ratify treaties belongs to the Senate.

We disagree.

Justice Isagani Cruz, in his book on International Law, describes the treaty-making process in this wise:

The usual steps in the treaty-making process are: negotiation, signature, ratification, and exchange of the instruments of ratification. The treaty may then be submitted for registration and publication under the U.N. Charter, although this step is not essential to the validity of the agreement as between the parties.

Negotiation may be undertaken directly by the head of state but he now usually assigns this task to his authorized representatives. These representatives are provided with credentials known as full powers, which they exhibit to the other negotiators at the start of the formal discussions. It is standard practice for one of the parties to submit a draft of the proposed treaty which, together with the counter-proposals, becomes the basis of the subsequent negotiations. The negotiations may be brief or protracted, depending on the issues involved, and may even "collapse" in case the parties are unable to come to an agreement on the points under consideration.

If and when the negotiators finally decide on the terms of the treaty, the same is opened for signature. This step is primarily intended as a means of authenticating the instrument and for the purpose of symbolizing the good faith of the parties; but, significantly, it does not indicate the final consent of the state in cases where ratification of the treaty is required. The document is ordinarily signed in accordance with the alternat, that is, each of the several negotiators is allowed to sign first on the copy which he will bring home to his own state.

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

x x x

The last step in the treaty-making process is the exchange of the instruments of ratification, which usually also signifies the effectivity of the treaty unless a different date has been agreed upon by the parties. Where ratification is dispensed with and no effectivity clause is embodied in the treaty, the instrument is deemed effective upon its signature.16 [emphasis supplied]

Petitioners’ arguments equate the signing of the treaty by the Philippine representative with ratification. It should be underscored that the signing of the treaty and the ratification are two separate and distinct steps in the treaty-making process. As earlier discussed, the signature is primarily intended as a means of authenticating the instrument and as a symbol of the good faith of the parties. It is usually performed by the state’s authorized representative in the diplomatic mission. Ratification, on the other hand, is the formal act by which a state confirms and accepts the provisions of a treaty

concluded by its representative. It is generally held to be an executive act, undertaken by the head of the state or of the government.17 Thus, Executive Order No. 459 issued by President Fidel V. Ramos on November 25, 1997 provides the guidelines in the negotiation of international agreements and its ratification. It mandates that after the treaty has been signed by the Philippine representative, the same shall be transmitted to the Department of Foreign Affairs. The Department of Foreign Affairs shall then prepare the ratification papers and forward the signed copy of the treaty to the President for ratification. After the President has ratified the treaty, the Department of Foreign Affairs shall submit the same to the Senate for concurrence. Upon receipt of the concurrence of the Senate, the Department of Foreign Affairs shall comply with the provisions of the treaty to render it effective. Section 7 of Executive Order No. 459 reads:

Sec. 7. Domestic Requirements for the Entry into Force of a Treaty or an Executive Agreement. — The domestic requirements for the entry into force of a treaty or an executive agreement, or any amendment thereto, shall be as follows:

A. Executive Agreements.

i. All executive agreements shall be transmitted to the Department of Foreign Affairs after their signing for the preparation of the ratification papers. The transmittal shall include the highlights of the agreements and the benefits which will accrue to the Philippines arising from them.

ii. The Department of Foreign Affairs, pursuant to the endorsement by the concerned agency, shall transmit the agreements to the President of the Philippines for his ratification. The original signed instrument of ratification shall then be returned to the Department of Foreign Affairs for appropriate action.

B. Treaties.

i. All treaties, regardless of their designation, shall comply with the requirements provided in sub-paragraph[s] 1 and 2, item A (Executive Agreements) of this Section. In addition, the Department of Foreign Affairs shall submit the treaties to the Senate of the Philippines for concurrence in the ratification by the President. A certified true copy of the treaties, in such numbers as may be required by the Senate, together with a certified true copy of the ratification instrument, shall accompany the submission of the treaties to the Senate.

ii. Upon receipt of the concurrence by the Senate, the Department of Foreign Affairs shall comply with the provision of the treaties in effecting their entry into force.

Petitioners’ submission that the Philippines is bound under treaty law and international law to ratify the treaty which it has signed is without basis. The signature does not signify the final consent of the state to the treaty. It is the ratification that binds the state to the provisions thereof. In fact, the Rome Statute itself requires that the signature of the representatives of the states be subject to ratification, acceptance or approval of the signatory states. Ratification is the act by which the provisions of a treaty are formally confirmed and approved by a State. By ratifying a treaty signed in its behalf, a state expresses its willingness to be bound by the provisions of such treaty. After the treaty is signed by the state’s representative, the President, being accountable to the people, is burdened with the responsibility and the duty to carefully study the contents of the treaty and ensure that they are not inimical to the interest of the state and its people. Thus, the President has the discretion even after the signing of the treaty by the Philippine representative whether or not to ratify the same. The Vienna Convention on the Law of Treaties does not contemplate to defeat or even restrain this power of the head of states. If that were so, the requirement of ratification of treaties would be pointless and futile. It has been held that a state has no legal or even moral duty to ratify a treaty which has been signed by its plenipotentiaries.18 There is no legal obligation to ratify a treaty, but it goes without saying that the refusal must be based on substantial grounds and not on superficial or whimsical reasons. Otherwise, the other state would be justified in taking offense.19

It should be emphasized that under our Constitution, the power to ratify is vested in the President, subject to the concurrence of the Senate. The role of the Senate, however, is limited only to giving or withholding its consent, or concurrence, to the ratification.20 Hence, it is within the authority of the President to refuse to submit a treaty to the Senate or, having secured its consent for its ratification, refuse to ratify it.21 Although the refusal of a state to ratify a treaty which has been signed in its behalf is a serious step that should not be taken lightly,22 such decision is within the competence of the President alone, which cannot be encroached by this Court via a writ ofmandamus. This Court has no jurisdiction over actions seeking to enjoin the President in the performance of his official duties.23 The Court, therefore, cannot issue the writ of mandamus prayed for by the petitioners as it is beyond its jurisdiction to compel the executive branch of the government to transmit the signed text of Rome Statute to the Senate.

IN VIEW WHEREOF, the petition is DISMISSED.

SO ORDERED.

REYNATO S. PUNO

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. 175888               February 11, 2009

SUZETTE NICOLAS y SOMBILON, Petitioner, vs.ALBERTO ROMULO, in his capacity as Secretary of Foreign Affairs; RAUL GONZALEZ, in his capacity as Secretary of Justice; EDUARDO ERMITA, in his capacity as Executive Secretary; RONALDO PUNO, in his capacity as Secretary of the Interior and Local Government; SERGIO APOSTOL, in his capacity as Presidential Legal Counsel; and L/CPL. DANIEL SMITH, Respondents.

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

G.R. No. 176051               February 11, 2009

JOVITO R. SALONGA, WIGBERTO E. TAÑADA, JOSE DE LA RAMA, EMILIO C. CAPULONG, H. HARRY L. ROQUE, JR., FLORIN HILBAY, and BENJAMIN POZON, Petitioners, vs.DANIEL SMITH, SECRETARY RAUL GONZALEZ, PRESIDENTIAL LEGAL COUNSEL SERGIO APOSTOL, SECRETARY RONALDO PUNO, SECRETARY ALBERTO ROMULO, The Special 16th Division of the COURT OF APPEALS, and all persons acting in their capacity, Respondents.

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

G.R. No. 176222               February 11, 2009

BAGONG ALYANSANG MAKABAYAN (BAYAN), represented by Dr. Carol Araullo; GABRIELA, represented by Emerenciana de Jesus; BAYAN MUNA, represented by Rep. Satur Ocampo; GABRIELA WOMEN'S PARTY, represented by Rep. Liza Maza; KILUSANG MAYO UNO (KMU), represented by Elmer Labog; KILUSANG MAGBUBUKID NG PILIPINAS (KMP), represented by Willy Marbella; LEAGUE OF FILIPINO STUDENTS (LFS), represented by Vencer Crisostomo; and THE PUBLIC INTEREST LAW CENTER, represented by Atty. Rachel Pastores, Petitioners, vs.PRESIDENT GLORIA MACAPAGAL-ARROYO, in her capacity as concurrent Defense Secretary, EXECUTIVE SECRETARY EDUARDO ERMITA, FOREIGN AFFAIRS SECRETARY ALBERTO ROMULO, JUSTICE SECRETARY RAUL GONZALEZ, AND INTERIOR AND LOCAL GOVERNMENT SECRETARY RONALDO PUNO, Respondents.

D E C I S I O N

AZCUNA, J.:

These are petitions for certiorari, etc. as special civil actions and/or for review of the Decision of the Court of Appeals in Lance Corporal Daniel J. Smith v. Hon. Benjamin T. Pozon, et al., in CA-G.R. SP No. 97212, dated January 2, 2007.

The facts are not disputed.

Respondent Lance Corporal (L/CPL) Daniel Smith is a member of the United States Armed Forces. He was charged with the crime of rape committed against a Filipina, petitioner herein, sometime on November 1, 2005, as follows:

The undersigned accused LCpl. Daniel Smith, Ssgt. Chad Brian Carpentier, Dominic Duplantis, Keith Silkwood and Timoteo L. Soriano, Jr. of the crime of Rape under Article 266-A of the Revised Penal Code, as amended by Republic Act 8353, upon a complaint under oath filed by Suzette S. Nicolas, which is attached hereto and made an integral part hereof as Annex "A," committed as follows:

"That on or about the First (1st) day of November 2005, inside the Subic Bay Freeport Zone, Olongapo City and within the jurisdiction of this Honorable Court, the above-named accused’s (sic), being then members of the United States Marine Corps, except Timoteo L. Soriano, Jr., conspiring, confederating together and mutually helping one another, with lewd design and by means of force, threat and intimidation, with abuse of superior strength and taking advantage of the intoxication of the victim, did then and there willfully, unlawfully and feloniously sexually abuse and have sexual intercourse with or carnal knowledge of one Suzette S. Nicolas, a 22-year old unmarried woman inside a Starex Van with Plate No. WKF-162, owned by Starways Travel and Tours, with Office address at 8900 P. Victor St., Guadalupe, Makati City, and driven by accused Timoteo L. Soriano, Jr., against the will and consent of the said Suzette S. Nicolas, to her damage and prejudice.

CONTRARY TO LAW."1

Pursuant to the Visiting Forces Agreement (VFA) between the Republic of the Philippines and the United States, entered into on February 10, 1998, the United States, at its request, was granted custody of defendant Smith pending the proceedings.

During the trial, which was transferred from the Regional Trial Court (RTC) of Zambales to the RTC of Makati for security reasons, the United States Government faithfully complied with its undertaking to bring defendant Smith to the trial court every time his presence was required.

On December 4, 2006, the RTC of Makati, following the end of the trial, rendered its Decision, finding defendant Smith guilty, thus:

WHEREFORE, premises considered, for failure of the prosecution to adduce sufficient evidence against accused S/SGT. CHAD BRIAN CARPENTER, L/CPL. KEITH SILKWOOD AND L/CPL. DOMINIC DUPLANTIS, all of the US Marine Corps assigned at the USS Essex, are hereby ACQUITTED to the crime charged.

The prosecution having presented sufficient evidence against accused L/CPL. DANIEL J. SMITH, also of the US Marine Corps at the USS Essex, this Court hereby finds him GUILTY BEYOND REASONABLE DOUBT of the crime of RAPE defined under Article 266-A, paragraph 1 (a) of the Revised Penal Code, as amended by R.A. 8353, and, in accordance with Article 266-B, first paragraph thereof, hereby sentences him to suffer the penalty of reclusion perpetua together with the accessory penalties provided for under Article 41 of the same Code.

Pursuant to Article V, paragraph No. 10, of the Visiting Forces Agreement entered into by the Philippines and the United States, accused L/CPL. DANIEL J. SMITH shall serve his sentence in the facilities that shall, thereafter, be agreed upon by appropriate Philippine and United States authorities. Pending agreement on such facilities, accused L/CPL. DANIEL J. SMITH is hereby temporarily committed to the Makati City Jail.

Accused L/CPL. DANIEL J. SMITH is further sentenced to indemnify complainant SUZETTE S. NICOLAS in the amount of P50,000.00 as compensatory damages plus P50,000.00 as moral damages.

SO ORDERED.2

As a result, the Makati court ordered Smith detained at the Makati jail until further orders.

On December 29, 2006, however, defendant Smith was taken out of the Makati jail by a contingent of Philippine law enforcement agents, purportedly acting under orders of the Department of the Interior and Local Government, and brought to a facility for detention under the control of the United States government, provided for under new agreements between the Philippines and the United States, referred to as the Romulo-Kenney Agreement of December 19, 2006 which states:

The Government of the Republic of the Philippines and the Government of the United States of America agree that, in accordance with the Visiting Forces Agreement signed between our two nations, Lance Corporal Daniel J. Smith, United States Marine Corps, be returned to U.S. military custody at the U.S. Embassy in Manila.

(Sgd.) Kristie A. KenneyRepresentative of the United States of America

DATE: 12-19-06

(Sgd.) Alberto G. RomuloRepresentative of the Republic of the Philippines

DATE: December 19, 2006

and the Romulo-Kenney Agreement of December 22, 2006 which states:

The Department of Foreign Affairs of the Republic of the Philippines and the Embassy of the United States of America agree that, in accordance with the Visiting Forces Agreement signed between the two nations, upon transfer of Lance Corporal Daniel J. Smith, United States Marine Corps, from the Makati City Jail, he will be detained at the first floor, Rowe (JUSMAG) Building, U.S. Embassy Compound in a room of approximately 10 x 12 square feet. He will be guarded round the clock by U.S. military personnel. The Philippine police and jail authorities, under the direct supervision of the Philippine Department of Interior and Local Government (DILG) will have access to the place of detention to ensure the United States is in compliance with the terms of the VFA.

The matter was brought before the Court of Appeals which decided on January 2, 2007, as follows:

WHEREFORE, all the foregoing considered, we resolved to DISMISS the petition for having become moot.3

Hence, the present actions.

The petitions were heard on oral arguments on September 19, 2008, after which the parties submitted their memoranda.

Petitioners contend that the Philippines should have custody of defendant L/CPL Smith because, first of all, the VFA is void and unconstitutional.

This issue had been raised before, and this Court resolved in favor of the constitutionality of the VFA. This was in Bayan v. Zamora,4 brought by Bayan, one of petitioners in the present cases.

Against the barriers of res judicata vis-à-vis Bayan, and stare decisis vis-à-vis all the parties, the reversal of the previous ruling is sought on the ground that the issue is of primordial importance, involving the sovereignty of the Republic, as well as a specific mandate of the Constitution.

The provision of the Constitution is Art. XVIII, Sec. 25 which states:

Sec. 25. After the expiration in 1991 of the Agreement between the Philippines and the United States of America concerning Military Bases, foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate and, when the Congress so requires, ratified by a majority of the votes cast by the people in a national referendum held for that purpose, and recognized as a treaty by the other contracting State.

The reason for this provision lies in history and the Philippine experience in regard to the United States military bases in the country.

It will be recalled that under the Philippine Bill of 1902, which laid the basis for the Philippine Commonwealth and, eventually, for the recognition of independence, the United States agreed to cede to the Philippines all the territory it acquired from Spain under the Treaty of Paris, plus a few islands later added to its realm, except certain naval ports and/or military bases and facilities, which the United States retained for itself.

This is noteworthy, because what this means is that Clark and Subic and the other places in the Philippines covered by the RP-US Military Bases Agreement of 1947 were not Philippine territory, as they were excluded from the cession and retained by the US.

Accordingly, the Philippines had no jurisdiction over these bases except to the extent allowed by the United States. Furthermore, the RP-US Military Bases Agreement was never advised for ratification by the United States Senate, a disparity in treatment, because the Philippines regarded it as a treaty and had it concurred in by our Senate.

Subsequently, the United States agreed to turn over these bases to the Philippines; and with the expiration of the RP-US Military Bases Agreement in 1991, the territory covered by these bases were finally ceded to the Philippines.

To prevent a recurrence of this experience, the provision in question was adopted in the 1987 Constitution.

The provision is thus designed to ensure that any agreement allowing the presence of foreign military bases, troops or facilities in Philippine territory shall be equally binding on the Philippines and the foreign sovereign State involved. The idea is to prevent a recurrence of the situation in which the terms and conditions governing the presence of foreign armed forces in our territory were binding upon us but not upon the foreign State.

Applying the provision to the situation involved in these cases, the question is whether or not the presence of US Armed Forces in Philippine territory pursuant to the VFA is allowed "under a treaty duly concurred in by the Senate xxx and recognized as a treaty by the other contracting State."

This Court finds that it is, for two reasons.

First, as held in Bayan v. Zamora,5 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 fact that the VFA was not submitted for advice and consent of the United States Senate does not detract from its status as a binding international agreement or treaty recognized by the said State. For this is a matter of internal United States law. Notice can be taken of the internationally known practice by the United States of submitting to its Senate for advice and consent agreements that are policymaking in nature, whereas those that carry out or further implement these policymaking agreements are merely submitted to Congress, under the provisions of the so-called Case–Zablocki Act, within sixty days from ratification.6

The second reason has to do with the relation between the VFA and the RP-US Mutual Defense Treaty of August 30, 1951. This earlier agreement was signed and duly ratified with the concurrence of both the Philippine Senate and the United States Senate.

The RP-US Mutual Defense Treaty states:7

MUTUAL DEFENSE TREATY BETWEEN THE REPUBLIC OF THE PHILIPPINES AND THE UNITED STATES OF AMERICA. Signed at Washington, August 30, 1951.

The Parties of this Treaty

Reaffirming their faith in the purposes and principles of the Charter of the United Nations and their desire to live in peace with all peoples and all governments, and desiring to strengthen the fabric of peace in the Pacific area.

Recalling with mutual pride the historic relationship which brought their two peoples together in a common bond of sympathy and mutual ideals to fight side-by-side against imperialist aggression during the last war.

Desiring to declare publicly and formally their sense of unity and their common determination to defend themselves against external armed attack, so that no potential aggressor could be under the illusion that either of them stands alone in the Pacific area.

Desiring further to strengthen their present efforts for collective defense for the preservation of peace and security pending the development of a more comprehensive system of regional security in the Pacific area.

Agreeing that nothing in this present instrument shall be considered or interpreted as in any way or sense altering or diminishing any existing agreements or understandings between the Republic of the Philippines and the United States of America.

Have agreed as follows:

Article I. The parties undertake, as set forth in the Charter of the United Nations, to settle any international disputes in which they may be involved by peaceful means in such a manner that international peace and security and justice are not endangered and to refrain in their international relation from the threat or use of force in any manner inconsistent with the purposes of the United Nations.

Article II. In order more effectively to achieve the objective of this Treaty, the Parties separately and jointly by self-help and mutual aid will maintain and develop their individual and collective capacity to resist armed attack.

Article III. The Parties, through their Foreign Ministers or their deputies, will consult together from time to time regarding the implementation of this Treaty and whenever in the opinion of either of them the territorial integrity, political independence or security of either of the Parties is threatened by external armed attack in the Pacific.

Article IV. Each Party recognizes that an armed attack in the Pacific area on either of the parties would be dangerous to its own peace and safety and declares that it would act to meet the common dangers in accordance with its constitutional processes.

Any such armed attack and all measures taken as a result thereof shall be immediately reported to the Security Council of the United Nations. Such measures shall be terminated when the Security Council has taken the measures necessary to restore and maintain international peace and security.

Article V. For the purpose of Article IV, an armed attack on either of the Parties is deemed to include an armed attack on the metropolitan territory of either of the Parties, or on the island territories under its jurisdiction in the Pacific Ocean, its armed forces, public vessels or aircraft in the Pacific.

Article VI. This Treaty does not affect and shall not be interpreted as affecting in any way the rights and obligations of the Parties under the Charter of the United Nations or the responsibility of the United Nations for the maintenance of international peace and security.

Article VII. This Treaty shall be ratified by the Republic of the Philippines and the United Nations of America in accordance with their respective constitutional processes and will come into force when instruments of ratification thereof have been exchanged by them at Manila.

Article VIII. This Treaty shall remain in force indefinitely. Either Party may terminate it one year after notice has been given to the other party.

In withness whereof the undersigned Plenipotentiaries have signed this Treaty.

Done in duplicate at Washington this thirtieth day of August, 1951.

For the Republic of the Philippines:

(Sgd.) Carlos P. Romulo

(Sgd.) Joaquin M. Elizalde

(Sgd.) Vicente J. Francisco

(Sgd.) Diosdado Macapagal

For the United States of America:

(Sgd.) Dean Acheson

(Sgd.) John Foster Dulles

(Sgd.) Tom Connally

(Sgd.) Alexander Wiley8

Clearly, therefore, joint RP-US military exercises for the purpose of developing the capability to resist an armed attack fall squarely under the provisions of the RP-US Mutual Defense Treaty. The VFA, which is the instrument agreed upon to provide for the joint RP-US military exercises, is simply an implementing agreement to the main RP-US Military Defense Treaty. The Preamble of the VFA states:

The Government of the United States of America and the Government of the Republic of the Philippines,

Reaffirming their faith in the purposes and principles of the Charter of the United Nations and their desire to strengthen international and regional security in the Pacific area;

Reaffirming their obligations under the Mutual Defense Treaty of August 30, 1951;

Noting that from time to time elements of the United States armed forces may visit the Republic of the Philippines;

Considering that cooperation between the United States and the Republic of the Philippines promotes their common security interests;

Recognizing the desirability of defining the treatment of United States personnel visiting the Republic of the Philippines;

Have agreed as follows:9

Accordingly, as an implementing agreement of the RP-US Mutual Defense Treaty, it was not necessary to submit the VFA to the US Senate for advice and consent, but merely to the US Congress under the Case–Zablocki Act within 60 days of its ratification. It is for this reason that the US has certified that it recognizes the VFA as a binding international agreement, i.e., a treaty, and this substantially complies with the requirements of Art. XVIII, Sec. 25 of our Constitution.10

The provision of Art. XVIII, Sec. 25 of the Constitution, is complied with by virtue of the fact that the presence of the US Armed Forces through the VFA is a presence "allowed under" the RP-US Mutual Defense Treaty. Since the RP-US Mutual Defense Treaty itself has been ratified and concurred in by both the Philippine Senate and the US Senate, there is no violation of the Constitutional provision resulting from such presence.

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.

The VFA provides that in cases of offenses committed by the members of the US Armed Forces in the Philippines, the following rules apply:

Article V

Criminal Jurisdiction

x x x

6. The custody of any United States personnel over whom the Philippines is to exercise jurisdiction shall immediately reside with United States military authorities, if they so request, from the commission of the offense until completion of all judicial proceedings. United States military authorities shall, upon formal notification by the Philippine authorities and without delay, make such personnel available to those authorities in time for any investigative or judicial proceedings relating to the offense with which the person has been charged. In extraordinary cases, the Philippine Government shall present its position to the United States Government regarding custody, which the United States Government shall take into full account. In the event Philippine judicial proceedings are not completed within one year, the United States shall be relieved of any obligations under this paragraph. The one year period will not include the time necessary to appeal. Also, the one year period will not include any time during which scheduled trial procedures are delayed because United States authorities, after timely notification by Philippine authorities to arrange for the presence of the accused, fail to do so.

Petitioners contend that these undertakings violate another provision of the Constitution, namely, that providing for the exclusive power of this Court to adopt rules of procedure for all courts in the Philippines (Art. VIII, Sec. 5[5]). They argue

that to allow the transfer of custody of an accused to a foreign power is to provide for a different rule of procedure for that accused, which also violates the equal protection clause of the Constitution (Art. III, Sec. 1.).

Again, this Court finds no violation of the Constitution.

The equal protection clause is not violated, because there is a substantial basis for a different treatment of a member of a foreign military armed forces allowed to enter our territory and all other accused.11

The rule in international law is that a foreign armed forces allowed to enter one’s territory is immune from local jurisdiction, except to the extent agreed upon. The Status of Forces Agreements involving foreign military units around the world vary in terms and conditions, according to the situation of the parties involved, and reflect their bargaining power. But the principle remains, i.e., the receiving State can exercise jurisdiction over the forces of the sending State only to the extent agreed upon by the parties.12

As a result, the situation involved is not one in which the power of this Court to adopt rules of procedure is curtailed or violated, but rather one in which, as is normally encountered around the world, the laws (including rules of procedure) of one State do not extend or apply – except to the extent agreed upon – to subjects of another State due to the recognition of extraterritorial immunity given to such bodies as visiting foreign armed forces.

Nothing in the Constitution prohibits such agreements recognizing immunity from jurisdiction or some aspects of jurisdiction (such as custody), in relation to long-recognized subjects of such immunity like Heads of State, diplomats and members of the armed forces contingents of a foreign State allowed to enter another State’s territory. On the contrary, the Constitution states that the Philippines adopts the generally accepted principles of international law as part of the law of the land. (Art. II, Sec. 2).

Applying, however, the provisions of VFA, the Court finds that there is a different treatment when it comes to detention as against custody. The moment the accused has to be detained, e.g., after conviction, the rule that governs is the following provision of the VFA:

Article V

Criminal Jurisdiction

x x x

Sec. 10. The confinement or detention by Philippine authorities of United States personnel shall be carried out in facilities agreed on by appropriate Philippines and United States authorities. United States personnel serving sentences in the Philippines shall have the right to visits and material assistance.

It is clear that the parties to the VFA recognized the difference between custody during the trial and detention after conviction, because they provided for a specific arrangement to cover detention. And this specific arrangement clearly states not only that the detention shall be carried out in facilities agreed on by authorities of both parties, but also that the detention shall be "by Philippine authorities." Therefore, the Romulo-Kenney Agreements of December 19 and 22, 2006, which are agreements on the detention of the accused in the United States Embassy, are not in accord with the VFA itself because such detention is not "by Philippine authorities."

Respondents should therefore comply with the VFA and negotiate with representatives of the United States towards an agreement on detention facilities under Philippine authorities as mandated by Art. V, Sec. 10 of the VFA.

Next, the Court addresses the recent decision of the United States Supreme Court in Medellin v. Texas ( 552 US ___ No. 06-984, March 25, 2008), which held that treaties entered into by the United States are not automatically part of their domestic law unless these treaties are self-executing or there is an implementing legislation to make them enforceable.1avvphi1

On February 3, 2009, the Court issued a Resolution, thus:

"G.R. No. 175888 (Suzette Nicolas y Sombilon v. Alberto Romulo, et al.); G.R. No. 176051 (Jovito R. Salonga, et al. v. Daniel Smith, et al.); and G.R. No. 176222 (Bagong Alyansang Makabayan [BAYAN], et al. v. President Gloria Macapagal-Arroyo, et al.).

The parties, including the Solicitor General, are required to submit within three (3) days a Comment/Manifestation on the following points:

1. What is the implication on the RP-US Visiting Forces Agreement of the recent US Supreme Court decision in Jose Ernesto Medellin v. Texas, dated March 25, 2008, to the effect that treaty stipulations that are not self-executory can only be enforced pursuant to legislation to carry them into effect; and that, while treaties may comprise international commitments, they are not domestic law unless Congress has enacted implementing statutes or the treaty itself conveys an intention that it be "self-executory" and is ratified on these terms?

2. Whether the VFA is enforceable in the US as domestic law, either because it is self-executory or because there exists legislation to implement it.

3. Whether the RP-US Mutual Defense Treaty of August 30, 1951 was concurred in by the US Senate and, if so, is there proof of the US Senate advice and consent resolution? Peralta, J., no part."

After deliberation, the Court holds, on these points, as follows:

First, the VFA is a self-executing Agreement, as that term is defined in Medellin itself, because the parties intend its provisions to be enforceable, precisely because the Agreement is intended to carry out obligations and undertakings under the RP-US Mutual Defense Treaty. As a matter of fact, the VFA has been implemented and executed, with the US faithfully complying with its obligation to produce L/CPL Smith before the court during the trial.

Secondly, the VFA is covered by implementing legislation, namely, the Case-Zablocki Act, USC Sec. 112(b), inasmuch as it is the very purpose and intent of the US Congress that executive agreements registered under this Act within 60 days from their ratification be immediately implemented. The parties to these present cases do not question the fact that the VFA has been registered under the Case-Zablocki Act.1avvphi1

In sum, therefore, the VFA differs from the Vienna Convention on Consular Relations and the Avena decision of the International Court of Justice (ICJ), subject matter of the Medellin decision. The Convention and the ICJ decision are not self-executing and are not registrable under the Case-Zablocki Act, and thus lack legislative implementing authority.

Finally, the RP-US Mutual Defense Treaty was advised and consented to by the US Senate on March 20, 1952, as reflected in the US Congressional Record, 82nd Congress, Second Session, Vol. 98 – Part 2, pp. 2594-2595.

The framers of the Constitution were aware that the application of international law in domestic courts varies from country to country.

As Ward N. Ferdinandusse states in his Treatise, DIRECT APPLICATION OF INTERNATIONAL CRIMINAL LAW IN NATIONAL COURTS, some countries require legislation whereas others do not.

It was not the intention of the framers of the 1987 Constitution, in adopting Article XVIII, Sec. 25, to require the other contracting State to convert their system to achieve alignment and parity with ours. It was simply required that the treaty be recognized as a treaty by the other contracting State. With that, it becomes for both parties a binding international obligation and the enforcement of that obligation is left to the normal recourse and processes under international law.

Furthermore, as held by the US Supreme Court in Weinberger v. Rossi,13 an executive agreement is a "treaty" within the meaning of that word in international law and constitutes enforceable domestic law vis-à-vis the United States. Thus, the US Supreme Court in Weinberger enforced the provisions of the executive agreement granting preferential employment to Filipinos in the US Bases here.

Accordingly, there are three types of treaties in the American system:

1. Art. II, Sec. 2 treaties – These are advised and consented to by the US Senate in accordance with Art. II, Sec. 2 of the US Constitution.

2. Executive–Congressional Agreements: These are joint agreements of the President and Congress and need not be submitted to the Senate.

3. Sole Executive Agreements. – These are agreements entered into by the President. They are to be submitted to Congress within sixty (60) days of ratification under the provisions of the Case-Zablocki Act, after which they are recognized by the Congress and may be implemented.

As regards the implementation of the RP-US Mutual Defense Treaty, military aid or assistance has been given under it and this can only be done through implementing legislation. The VFA itself is another form of implementation of its provisions.

WHEREFORE, the petitions are PARTLY GRANTED, and the Court of Appeals’ Decision in CA-G.R. SP No. 97212 dated January 2, 2007 is MODIFIED. The Visiting Forces Agreement (VFA) between the Republic of the Philippines and the United States, entered into on February 10, 1998, is UPHELD as constitutional, but the Romulo-Kenney Agreements of December 19 and 22, 2006 are DECLARED not in accordance with the VFA, and respondent Secretary of Foreign Affairs is hereby ordered to forthwith negotiate with the United States representatives for the appropriate agreement on detention facilities under Philippine authorities as provided in Art. V, Sec. 10 of the VFA, pending which the status quo shall be maintained until further orders by this Court.

The Court of Appeals is hereby directed to resolve without delay the related matters pending therein, namely, the petition for contempt and the appeal of L/CPL Daniel Smith from the judgment of conviction.

No costs.

SO ORDERED.

ADOLFO S. AZCUNAAssociate Justice

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. 173034             October 9, 2007

PHARMACEUTICAL AND HEALTH CARE ASSOCIATION OF THE PHILIPPINES, petitioner, vs.HEALTH SECRETARY FRANCISCO T. DUQUE III; HEALTH UNDER SECRETARIES DR. ETHELYN P. NIETO, DR. MARGARITA M. GALON, ATTY. ALEXANDER A. PADILLA, & DR. JADE F. DEL MUNDO; and ASSISTANT SECRETARIES DR. MARIO C. VILLAVERDE, DR. DAVID J. LOZADA, AND DR. NEMESIO T. GAKO, respondents.

D E C I S I O N

AUSTRIA-MARTINEZ, J.:

The Court and all parties involved are in agreement that the best nourishment for an infant is mother's milk. There is nothing greater than for a mother to nurture her beloved child straight from her bosom. The ideal is, of course, for each and every Filipino child to enjoy the unequaled benefits of breastmilk. But how should this end be attained?

Before the Court is a petition for certiorari under Rule 65 of the Rules of Court, seeking to nullify Administrative Order (A.O.) No. 2006-0012 entitled, Revised Implementing Rules and Regulations of Executive Order No. 51, Otherwise Known as The "Milk Code," Relevant International Agreements, Penalizing Violations Thereof, and for Other Purposes (RIRR). Petitioner posits that the RIRR is not valid as it contains provisions that are not constitutional and go beyond the law it is supposed to implement.

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

Executive Order No. 51 (Milk Code) was issued by President Corazon Aquino on October 28, 1986 by virtue of the legislative powers granted to the president under the Freedom Constitution. One of the preambular clauses of the Milk Code states that the law seeks to give effect to Article 112 of the International Code of Marketing of Breastmilk Substitutes (ICMBS), a code adopted by the World Health Assembly (WHA) in 1981. From 1982 to 2006, the WHA adopted several Resolutions to the effect that breastfeeding should be supported, promoted and protected, hence, it should be ensured that nutrition and health claims are not permitted for breastmilk substitutes.

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

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

However, on June 28, 2006, petitioner, representing its members that are manufacturers of breastmilk substitutes, filed the present Petition for Certiorari and Prohibition with Prayer for the Issuance of a Temporary Restraining Order (TRO) or Writ of Preliminary Injunction.

The main issue raised in the petition is whether respondents officers of the DOH acted without or in excess of jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and in violation of the provisions of the Constitution in promulgating the RIRR.3

On August 15, 2006, the Court issued a Resolution granting a TRO enjoining respondents from implementing the questioned RIRR.

After the Comment and Reply had been filed, the Court set the case for oral arguments on June 19, 2007. The Court issued an Advisory (Guidance for Oral Arguments) dated June 5, 2007, to wit:

The Court hereby sets the following issues:

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

2. Whether Administrative Order No. 2006-0012 or the Revised Implementing Rules and Regulations (RIRR) issued by the Department of Health (DOH) is not constitutional;

2.1 Whether the RIRR is in accord with the provisions of Executive Order No. 51 (Milk Code);

2.2 Whether pertinent international agreements1 entered into by the Philippines are part of the law of the land and may be implemented by the DOH through the RIRR; If in the affirmative, whether the RIRR is in accord with the international agreements;

2.3 Whether Sections 4, 5(w), 22, 32, 47, and 52 of the RIRR violate the due process clause and are in restraint of trade; and

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

_____________

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

The parties filed their respective memoranda.

The petition is partly imbued with merit.

On the issue of petitioner's standing

With regard to the issue of whether petitioner may prosecute this case as the real party-in-interest, the Court adopts the view enunciated in Executive Secretary v. Court of Appeals,4 to wit:

The modern view is that an association has standing to complain of injuries to its members. This view fuses the legal identity of an association with that of its members. An association has standing to file suit for its workers despite its lack of direct interest if its members are affected by the action. An organization has standing to assert the concerns of its constituents.

x x x x

x x x We note that, under its Articles of Incorporation, the respondent was organized x x x to act as the representative of any individual, company, entity or association on matters related to the manpower recruitment industry, and to perform other acts and activities necessary to accomplish the purposes embodied therein. The respondent is, thus, the appropriate party to assert the rights of its members, because it and its members are in every practical sense identical. x x x The respondent [association] is but the medium through which its individual members seek to make more effective the expression of their voices and the redress of their grievances. 5 (Emphasis supplied)

which was reasserted in Purok Bagong Silang Association, Inc. v. Yuipco,6 where the Court ruled that an association has the legal personality to represent its members because the results of the case will affect their vital interests.7

Herein petitioner's Amended Articles of Incorporation contains a similar provision just like in Executive Secretary, that the association is formed "to represent directly or through approved representatives the pharmaceutical and health care industry before the Philippine Government and any of its agencies, the medical professions and the general public."8 Thus, as an organization, petitioner definitely has an interest in fulfilling its avowed purpose of representing members who are part of the pharmaceutical and health care industry. Petitioner is duly authorized9to take the appropriate course of action to bring to the attention of government agencies and the courts any grievance suffered by its members which are directly affected by the RIRR. Petitioner, which is mandated by its Amended Articles of Incorporation to represent the entire industry, would be remiss in its duties if it fails to act on governmental action that would affect any of its industry members, no matter how few or numerous they are. Hence, petitioner, whose legal identity is deemed fused with its members, should be considered as a real party-in-interest which stands to be benefited or injured by any judgment in the present action.

On the constitutionality of the provisions of the RIRR

First, the Court will determine if pertinent international instruments adverted to by respondents are part of the law of the land.

Petitioner assails the RIRR for allegedly going beyond the provisions of the Milk Code, thereby amending and expanding the coverage of said law. The defense of the DOH is that the RIRR implements not only the Milk Code but also various international instruments10 regarding infant and young child nutrition. It is respondents' position that said international instruments are deemed part of the law of the land and therefore the DOH may implement them through the RIRR.

The Court notes that the following international instruments invoked by respondents, namely: (1) The United Nations Convention on the Rights of the Child; (2) The International Covenant on Economic, Social and Cultural Rights; and (3) the Convention on the Elimination of All Forms of Discrimination Against Women, only provide in general terms that steps must be taken by State Parties to diminish infant and child mortality and inform society of the advantages of breastfeeding, ensure the health and well-being of families, and ensure that women are provided with services and nutrition in connection with pregnancy and lactation. Said instruments do not contain specific provisions regarding the use or marketing of breastmilk substitutes.

The international instruments that do have specific provisions regarding breastmilk substitutes are the ICMBS and various WHA Resolutions.

Under the 1987 Constitution, international law can become part of the sphere of domestic law either bytransformation or incorporation.11 The transformation method requires that an international law be transformed into a domestic law through a constitutional mechanism such as local legislation. The incorporation method applies when, by mere constitutional declaration, international law is deemed to have the force of domestic law.12

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

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

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

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

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

SECTION 2. The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation and amity with all nations. (Emphasis supplied)

embodies the incorporation method.14

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

[G]enerally accepted principles of international law, by virtue of the incorporation clause of the Constitution, form part of the laws of the land even if they do not derive from treaty obligations. The classical formulation in international law sees those customary rules accepted as binding result from the combination [of] two elements: the established, widespread, and consistent practice on the part of States; and a psychological element known as the opinion juris sive necessitates (opinion as to law or necessity). Implicit in the latter element is a belief that the practice in question is rendered obligatory by the existence of a rule of law requiring it.16 (Emphasis supplied)

"Generally accepted principles of international law" refers to norms of general or customary international law which are binding on all states,17 i.e., renunciation of war as an instrument of national policy, the principle of sovereign immunity,18 a person's right to life, liberty and due process,19 and pacta sunt servanda,20 among others. The concept of "generally accepted principles of law" has also been depicted in this wise:

Some legal scholars and judges look upon certain "general principles of law" as a primary source of international law because they have the "character of jus rationale" and are "valid through all kinds of human societies." (Judge Tanaka in his dissenting opinion in the 1966 South West Africa Case, 1966 I.C.J. 296). O'Connell holds that certain priniciples are part of international law because they are "basic to legal systems generally" and hence part of the jus gentium. These principles, he believes, are established by a process of reasoning based on the common identity of all legal systems. If there should be doubt or disagreement, one must look to state practice and determine whether the municipal law principle provides a just and acceptable solution. x x x 21 (Emphasis supplied)

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

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

x x x x

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

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

x x x x

Duration therefore is not the most important element. More important is the consistency and the generality of the practice. x x x

x x x x

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

Clearly, customary international law is deemed incorporated into our domestic system.23

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

The World Health Organization (WHO) is one of the international specialized agencies allied with the United Nations (UN) by virtue of Article 57,24 in relation to Article 6325 of the UN Charter. Under the 1946 WHO Constitution, it is the WHA which determines the policies of the WHO,26 and has the power to adopt regulations concerning "advertising and labeling of biological, pharmaceutical and similar products moving in international commerce,"27 and to "make recommendations to members with respect to any matter within the competence of the Organization."28 The legal effect of its regulations, as opposed to recommendations, is quite different.

Regulations, along with conventions and agreements, duly adopted by the WHA bind member states thus:

Article 19. The Health Assembly shall have authority to adopt conventions or agreements with respect to any matter within the competence of the Organization. A two-thirds vote of the Health Assembly shall be required for the adoption of such conventions or agreements, which shall come into force for each Member when accepted by it in accordance with its constitutional processes.

Article 20. Each Member undertakes that it will, within eighteen months after the adoption by the Health Assembly of a convention or agreement, take action relative to the acceptance of such convention or agreement. Each Member shall notify the Director-General of the action taken, and if it does not accept such convention or agreement within the time limit, it will furnish a statement of the reasons for non-acceptance. In case of acceptance, each Member agrees to make an annual report to the Director-General in accordance with Chapter XIV.

Article 21. The Health Assembly shall have authority to adopt regulations concerning: (a) sanitary and quarantine requirements and other procedures designed to prevent the international spread of disease; (b) nomenclatures with respect to diseases, causes of death and public health practices; (c) standards with respect to diagnostic procedures for international use; (d) standards with respect to the safety, purity and potency of biological, pharmaceutical and similar products moving in international commerce; (e) advertising and labeling of biological, pharmaceutical and similar products moving in international commerce.

Article 22. Regulations adopted pursuant to Article 21 shall come into force for all Members after due notice has been given of their adoption by the Health Assembly except for such Members as may notify the Director-General of rejection or reservations within the period stated in the notice. (Emphasis supplied)

On the other hand, under Article 23, recommendations of the WHA do not come into force for members, in the same way that conventions or agreements under Article 19 and regulations under Article 21 come into force. Article 23 of the WHO Constitution reads:

Article 23. The Health Assembly shall have authority to make recommendations to Members with respect to any matter within the competence of the Organization. (Emphasis supplied)

The absence of a provision in Article 23 of any mechanism by which the recommendation would come into force for member states is conspicuous.

The former Senior Legal Officer of WHO, Sami Shubber, stated that WHA recommendations are generally not binding, but they "carry moral and political weight, as they constitute the judgment on a health issue of the collective membership of the highest international body in the field of health."29 Even the ICMBS itself was adopted as a mere recommendation, as WHA Resolution No. 34.22 states:

"The Thirty-Fourth World Health Assembly x x x adopts, in the sense of Article 23 of the Constitution, the International Code of Marketing of Breastmilk Substitutes annexed to the present resolution." (Emphasis supplied)

The Introduction to the ICMBS also reads as follows:

In January 1981, the Executive Board of the World Health Organization at its sixty-seventh session, considered the fourth draft of the code, endorsed it, and unanimously recommended to the Thirty-fourth World Health Assembly the text of a resolution by which it would adopt the code in the form of a recommendation rather than a regulation. x x x (Emphasis supplied)

The legal value of WHA Resolutions as recommendations is summarized in Article 62 of the WHO Constitution, to wit:

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

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

It is propounded that WHA Resolutions may constitute "soft law" or non-binding norms, principles and practices that influence state behavior.31

"Soft law" does not fall into any of the categories of international law set forth in Article 38, Chapter III of the 1946 Statute of the International Court of Justice.32 It is, however, an expression of non-binding norms, principles, and practices that influence state behavior.33 Certain declarations and resolutions of the UN General Assembly fall under this category.34 The most notable is the UN Declaration of Human Rights, which this Court has enforced in various cases, specifically, Government of Hongkong Special Administrative Region v. Olalia,35 Mejoff v. Director of Prisons,36 Mijares v. Rañada37 and Shangri-la International Hotel Management, Ltd. v. Developers Group of Companies, Inc..38

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

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

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

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

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

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

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

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

Respondents failed to establish that the provisions of pertinent WHA Resolutions are customary international law that may be deemed part of the law of the land.

Consequently, legislation is necessary to transform the provisions of the WHA Resolutions into domestic law. The provisions of the WHA Resolutions cannot be considered as part of the law of the land that can be implemented by executive agencies without the need of a law enacted by the legislature.

Second, the Court will determine whether the DOH may implement the provisions of the WHA Resolutions by virtue of its powers and functions under the Revised Administrative Code even in the absence of a domestic law.

Section 3, Chapter 1, Title IX of the Revised Administrative Code of 1987 provides that the DOH shall define the national health policy and implement a national health plan within the framework of the government's general policies and plans, and issue orders and regulations concerning the implementation of established health policies.

It is crucial to ascertain whether the absolute prohibition on advertising and other forms of promotion of breastmilk substitutes provided in some WHA Resolutions has been adopted as part of the national health policy.

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

The national policy of protection, promotion and support of breastfeeding cannot automatically be equated with a total ban on advertising for breastmilk substitutes.

In view of the enactment of the Milk Code which does not contain a total ban on the advertising and promotion of breastmilk substitutes, but instead, specifically creates an IAC which will regulate said advertising and promotion, it follows that a total ban policy could be implemented only pursuant to a law amending the Milk Code passed by the constitutionally authorized branch of government, the legislature.

Thus, only the provisions of the Milk Code, but not those of subsequent WHA Resolutions, can be validly implemented by the DOH through the subject RIRR.

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

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

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

MILK CODE RIRRWHEREAS, in order to ensure that safe and adequate nutrition for infants is provided, there is a need to protect and promote breastfeeding and to inform the public about the proper use of breastmilk substitutes and supplements and related products through adequate, consistent and objective information and appropriate regulation of the marketing and distribution of the said substitutes, supplements and related products;

SECTION 4(e). "Infant" means a person falling within the age bracket of 0-12 months.

Section 2. Purpose – These Revised Rules and Regulations are hereby promulgated to ensure the provision of safe and adequate nutrition for infants and young children by the promotion, protection and support of breastfeeding and by ensuring the proper use of breastmilk substitutes, breastmilk supplements and related products when these are medically indicated and only when necessary, on the basis of adequate information and through appropriate marketing and distribution.

Section 5(ff). "Young Child" means a person from the age of more than twelve (12) months up

to the age of three (3) years (36 months).

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

MILK CODE RIRRWHEREAS, in order to ensure that safe and adequate nutrition for infants is provided, there is a need to protect and promote breastfeeding and to inform the public about the proper use of breastmilk substitutes and supplements and related products   through adequate, consistent and objective information and appropriate regulation of the marketing and distribution of the said substitutes, supplements and related products;

Section 4. Declaration of Principles – The following are the underlying principles from which the revised rules and regulations are premised upon:

a. Exclusive breastfeeding is for infants from 0 to six (6) months.

b. There is no substitute or replacement for breastmilk.

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

MILK CODE RIRRSECTION 6. The General Public and Mothers. –

(a) No advertising, promotion or other marketing materials, whether written, audio or visual, for products within the scope of this Code shall be printed, published, distributed, exhibited and broadcast unless such materials are duly authorized and approved by an inter-agency committee   created herein pursuant to the applicable standards provided for in this Code.

Section 4. Declaration of Principles – The following are the underlying principles from which the revised rules and regulations are premised upon:

x x x x

f. Advertising, promotions, or sponsor-shipsof infant formula, breastmilk substitutes and other related products are prohibited.

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

Section 13. "Total Effect" - Promotion of products within the scope of this Code must be objective and should not equate or make the product appear to be as good or equal to breastmilk or breastfeeding in the advertising concept. It must not in any case undermine breastmilk or breastfeeding. The "total effect" should not directly or indirectly suggest that buying their product would produce better individuals, or resulting in greater love, intelligence, ability, harmony or in any manner

bring better health to the baby or other such exaggerated and unsubstantiated claim.

Section 15. Content of Materials. - The following shall not be included in advertising, promotional and marketing materials:

a. Texts, pictures, illustrations or information which discourage or tend to undermine the benefits or superiority of breastfeeding or which idealize the use of breastmilk substitutes and milk supplements. In this connection, no pictures of babies and children together with their mothers, fathers, siblings, grandparents, other relatives or caregivers (or yayas) shall be used in any advertisements for infant formula and breastmilk supplements;

b. The term "humanized," "maternalized," "close to mother's milk" or similar words in describing breastmilk substitutes or milk supplements;

c. Pictures or texts that idealize the use of infant and milk formula.

Section 16. All health and nutrition claims for products within the scope of the Code are absolutely prohibited. For this purpose, any phrase or words that connotes to increase emotional, intellectual abilities of the infant and young child and other like phrases shall not be allowed.

4. The RIRR imposes additional labeling requirements not found in the Milk Code:

MILK CODE RIRRSECTION 10. Containers/Label. –

(a) Containers and/or labels shall be designed to provide the necessary information about the appropriate use of the products, and in such a way as not to discourage breastfeeding.

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

(i) the words "Important Notice" or their equivalent;

(ii) a statement of the superiority of breastfeeding;

(iii) a statement that the product shall be used only on the advice of a health worker as to the need for its use and the proper methods of use;

Section 26. Content – Each container/label shall contain such message, in both Filipino and English languages, and which message cannot be readily separated therefrom, relative the following points:

(a) The words or phrase "Important Notice" or "Government Warning" or their equivalent;

(b) A statement of the superiority of breastfeeding;

(c) A statement that there is no substitute for breastmilk;

(d) A statement that the product shall be used only on the advice of a health worker as to the need for its use and the proper methods of use;

(e) Instructions for appropriate prepara-tion, and a warning against the health hazards of

and

(iv) instructions for appropriate preparation, and a warning against the health hazards of inappropriate preparation.

inappropriate preparation; and

(f) The health hazards of unnecessary or improper use of infant formula and other related products including information that powdered infant formula may contain pathogenic microorganisms and must be prepared and used appropriately.

5. The Milk Code allows dissemination of information on infant formula to health professionals; the RIRR totally prohibits such activity:

MILK CODE RIRRSECTION 7. Health Care System. –

(b) No facility of the health care system shall be used for the purpose of promoting infant formula or other products within the scope of this Code. This Code does not, however, preclude the dissemination of information to health professionals as provided in Section 8(b).

SECTION 8. Health Workers. -

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

Section 22. No manufacturer, distributor, or representatives of products covered by the Code shall be allowed to conduct or be involved in any activity on breastfeeding promotion, education and production of Information, Education and Communication (IEC) materials on breastfeeding, holding of or participating as speakers in classes or seminars for women and children activities and to avoid the use of these venues to market their brands or company names.

SECTION 16. All health and nutrition claims for products within the scope of the Code are absolutely prohibited. For this purpose, any phrase or words that connotes to increase emotional, intellectual abilities of the infant and young child and other like phrases shall not be allowed.

6. The Milk Code permits milk manufacturers and distributors to extend assistance in research and continuing education of health professionals; RIRR absolutely forbids the same.

MILK CODE RIRRSECTION 8. Health Workers –

(e) Manufacturers and distributors of products within the scope of this Code may assist in the research, scholarships and continuing education, of health professionals,in accordance with the rules and regulations promulgated by the Ministry of Health.

Section 4. Declaration of Principles –

The following are the underlying principles from which the revised rules and regulations are premised upon:

i. Milk companies, and their representatives,should not form part of any policymaking body or entity in relation to the advancement of breasfeeding.

SECTION 22. No manufacturer, distributor, or representatives of products covered by the Code shall be allowed to conduct or be involved in any activity on breastfeeding promotion, education and production of Information, Education and Communication (IEC) materials on breastfeeding, holding of or participating as speakers in classes or seminars for women and children activitiesand to avoid the use of these venues to market their brands or company names.

SECTION 32. Primary Responsibility of Health Workers - It is the primary responsibility of the health workers to promote, protect and support breastfeeding

and appropriate infant and young child feeding. Part of this responsibility is to continuously update their knowledge and skills on breastfeeding. No assistance, support, logistics or training from milk companies shall be permitted.

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

MILK CODE RIRRSECTION 6. The General Public and Mothers. –

(f) Nothing herein contained shall prevent donations from manufacturers and distributors of products within the scope of this Code upon request by or with the approval of the Ministry of Health.

Section 51. Donations Within the Scope of This Code - Donations of products, materials, defined and covered under the Milk Code and these implementing rules and regulations, shall be strictly prohibited.

Section 52. Other Donations By Milk Companies Not Covered by this Code. - Donations of products, equipments, and the like, not otherwise falling within the scope of this Code or these Rules, given by milk companies and their agents, representatives, whether in kind or in cash, may only be coursed through the Inter Agency Committee (IAC), which shall determine whether such donation be accepted or otherwise.

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

MILK CODE RIRR  Section 46. Administrative Sanctions. –The

following administrative sanctions shall be imposed upon any person, juridical or natural, found to have violated the provisions of the Code and its implementing Rules and Regulations:

a) 1st violation – Warning;

b) 2nd violation – Administrative fine of a minimum of Ten Thousand (P10,000.00) to Fifty Thousand (P50,000.00) Pesos, depending on the gravity and extent of the violation, including the recall of the offending product;

c) 3rd violation – Administrative Fine of a minimum of Sixty Thousand (P60,000.00) to One Hundred Fifty Thousand (P150,000.00) Pesos, depending on the gravity and extent of the violation, and in addition thereto, the recall of the offending product, and suspension of the Certificate of Product Registration (CPR);

d) 4th violation –Administrative Fine of a minimum of Two Hundred Thousand (P200,000.00) to Five Hundred (P500,000.00) Thousand Pesos, depending on the gravity and extent of the violation; and in addition thereto, the recall of the product, revocation of the CPR, suspension of

the License to Operate (LTO) for one year;

e) 5th and succeeding repeated violations – Administrative Fine of One Million (P1,000,000.00) Pesos, the recall of the offending product, cancellation of the CPR, revocation of the License to Operate (LTO) of the company concerned, including the blacklisting of the company to be furnished the Department of Budget and Management (DBM) and the Department of Trade and Industry (DTI);

f) An additional penalty of Two Thou-sand Five Hundred (P2,500.00) Pesos per day shall be made for every day the violation continues after having received the order from the IAC or other such appropriate body, notifying and penalizing the company for the infraction.

For purposes of determining whether or not there is "repeated" violation, each product violation belonging or owned by a company, including those of their subsidiaries, are deemed to be violations of the concerned milk company and shall not be based on the specific violating product alone.

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

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

1. Petitioner is mistaken in its claim that the Milk Code's coverage is limited only to children 0-12 months old. Section 3 of the Milk Code states:

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

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

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

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

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

There is, therefore, nothing objectionable with Sections 242 and 5(ff)43 of the RIRR.

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

The entirety of the RIRR, not merely truncated portions thereof, must be considered and construed together. As held in De Luna v. Pascual,44 "[t]he particular words, clauses and phrases in the Rule should not be studied as detached and isolated expressions, but the whole and every part thereof must be considered in fixing the meaning of any of its parts and in order to produce a harmonious whole."

Section 7 of the RIRR provides that "when medically indicated and only when necessary, the use of breastmilk substitutes is proper if based on complete and updated information." Section 8 of the RIRR also states that information and educational materials should include information on the proper use of infant formula when the use thereof is needed.

Hence, the RIRR, just like the Milk Code, also recognizes that in certain cases, the use of breastmilk substitutes may be proper.

3. The Court shall ascertain the merits of allegations 345 and 446 together as they are interlinked with each other.

To resolve the question of whether the labeling requirements and advertising regulations under the RIRR are valid, it is important to deal first with the nature, purpose, and depth of the regulatory powers of the DOH, as defined in general under the 1987 Administrative Code,47 and as delegated in particular under the Milk Code.

Health is a legitimate subject matter for regulation by the DOH (and certain other administrative agencies) in exercise of police powers delegated to it. The sheer span of jurisprudence on that matter precludes the need to further discuss it..48 However, health information, particularly advertising materials on apparently non-toxic products like breastmilk substitutes and supplements, is a relatively new area for regulation by the DOH.49

As early as the 1917 Revised Administrative Code of the Philippine Islands,50 health information was already within the ambit of the regulatory powers of the predecessor of DOH.51 Section 938 thereof charged it with the duty to protect the health of the people, and vested it with such powers as "(g) the dissemination of hygienic information among the people and especially the inculcation of knowledge as to the proper care of infantsand the methods of preventing and combating dangerous communicable diseases."

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

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

SECTION 12. Implementation and Monitoring –

x x x x

(b) The Ministry of Health shall be principally responsible for the implementation and enforcement of the provisions of this Code. For this purpose, the Ministry of Health shall have the following powers and functions:

(1) To promulgate such rules and regulations as are necessary or proper for the implementation of this Code and the accomplishment of its purposes and objectives.

x x x x

(4) To exercise such other powers and functions as may be necessary for or incidental to the attainment of the purposes and objectives of this Code.

SECTION 5. Information and Education –

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

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

SECTION 5. x x x

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

SECTION 8. Health Workers –

x x x x

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

SECTION 10. Containers/Label –

(a) Containers and/or labels shall be designed to provide the necessary information about the appropriate use of the products, and in such a way as not to discourage breastfeeding.

x x x x

(d) The term "humanized," "maternalized" or similar terms shall not be used. (Emphasis supplied)

The DOH is also authorized to control the purpose of the information and to whom such information may be disseminated under Sections 6 through 9 of the Milk Code54 to ensure that the information that would reach pregnant women, mothers of infants, and health professionals and workers in the health care system is restricted to scientific and factual matters and shall not imply or create a belief that bottlefeeding is equivalent or superior to breastfeeding.

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

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

a) Section 2 which requires adequate information and appropriate marketing and distribution of breastmilk substitutes, to wit:

SECTION 2. Aim of the Code – The aim of the Code is to contribute to the provision of safe and adequate nutrition for infants by the protection and promotion of breastfeeding and by ensuring the proper use of breastmilk substitutes and breastmilk supplements when these are necessary, on the basis of adequate information and through appropriate marketing and distribution.

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

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

d) Section 5(b) which provides that written, audio or visual informational and educational materials shall not use any picture or text which may idealize the use of breastmilk substitutes and should include information on the health hazards of unnecessary or improper use of said product;

e) Section 6(a) in relation to Section 12(a) which creates and empowers the IAC to review and examine advertising, promotion, and other marketing materials;

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

g) Section 10 which provides that containers or labels should not contain information that would discourage breastfeeding and idealize the use of infant formula.

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

Sections 1355 on "total effect" and 2656 of Rule VII of the RIRR contain some labeling requirements, specifically: a) that there be a statement that there is no substitute to breastmilk; and b) that there be a statement that powdered infant formula may contain pathogenic microorganisms and must be prepared and used appropriately. Section 1657 of the RIRR prohibits all health and nutrition claims for products within the scope of the Milk Code, such as claims of increased emotional and intellectual abilities of the infant and young child.

These requirements and limitations are consistent with the provisions of Section 8 of the Milk Code, to wit:

SECTION 8. Health workers -

x x x x

(b) Information provided by manufacturers and distributors to health professionals regarding products within the scope of this Code shall be restricted to scientific and factual matters, and such informationshall not imply or create a belief that bottlefeeding is equivalent or superior to breastfeeding. It shall also include the information specified in Section 5.58 (Emphasis supplied)

and Section 10(d)59 which bars the use on containers and labels of the terms "humanized," "maternalized," or similar terms.

These provisions of the Milk Code expressly forbid information that would imply or create a belief that there is any milk product equivalent to breastmilk or which is humanized or maternalized, as such information would be inconsistent with the superiority of breastfeeding.

It may be argued that Section 8 of the Milk Code refers only to information given to health workers regarding breastmilk substitutes, not to containers and labels thereof. However, such restrictive application of Section 8(b) will result in the absurd situation in which milk companies and distributors are forbidden to claim to health workers that their products are substitutes or equivalents of breastmilk, and yet be allowed to display on the containers and labels of their products the exact opposite message. That askewed interpretation of the Milk Code is precisely what Section 5(a) thereof seeks to avoid by mandating that all information regarding breastmilk vis-a-visbreastmilk substitutes be consistent, at the same time giving the government control over planning, provision, design, and dissemination of information on infant feeding.

Thus, Section 26(c) of the RIRR which requires containers and labels to state that the product offered is not a substitute for breastmilk, is a reasonable means of enforcing Section 8(b) of the Milk Code and deterring circumvention of the protection and promotion of breastfeeding as embodied in Section 260 of the Milk Code.

Section 26(f)61 of the RIRR is an equally reasonable labeling requirement. It implements Section 5(b) of the Milk Code which reads:

SECTION 5. x x x

x x x x

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

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

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

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

The authority of DOH to control information regarding breastmilk vis-a-vis breastmilk substitutes and supplements and related products cannot be questioned. It is its intervention into the area of advertising, promotion, and marketing that is being assailed by petitioner.

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

SECTION 6. The General Public and Mothers. –

(a) No advertising, promotion or other marketing materials, whether written, audio or visual, for products within the scope of this Code shall be printed, published, distributed, exhibited and broadcast unless such materials are duly authorized and approved by an inter-agency committee created herein pursuant to the applicable standards provided for in this Code.

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

SECTION 12. Implementation and Monitoring -

(a) For purposes of Section 6(a) of this Code, an inter-agency committee composed of the following members is hereby created:

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

Minister of Trade and Industry ------------------- Member

Minister of Justice ------------------- Member

Minister of Social Services and Development ------------------- Member

The members may designate their duly authorized representative to every meeting of the Committee.

The Committee shall have the following powers and functions:

(1) To review and examine all advertising. promotion or other marketing materials, whether written, audio or visual, on products within the scope of this Code;

(2) To approve or disapprove, delete objectionable portions from and prohibit the printing, publication, distribution, exhibition and broadcast of, all advertising promotion or other marketing materials, whether written, audio or visual, on products within the scope of this Code;

(3) To prescribe the internal and operational procedure for the exercise of its powers and functions as well as the performance of its duties and responsibilities; and

(4) To promulgate such rules and regulations as are necessary or proper for the implementation of Section 6(a) of this Code. x x x (Emphasis supplied)

However, Section 11 of the RIRR, to wit:

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

prohibits advertising, promotions, sponsorships or marketing materials and activities for breastmilk substitutes in line with the RIRR’s declaration of principle under Section 4(f), to wit:

SECTION 4. Declaration of Principles –

x x x x

(f) Advertising, promotions, or sponsorships of infant formula, breastmilk substitutes and other related products are prohibited.

The DOH, through its co-respondents, evidently arrogated to itself not only the regulatory authority given to the IAC but also imposed absolute prohibition on advertising, promotion, and marketing.

Yet, oddly enough, Section 12 of the RIRR reiterated the requirement of the Milk Code in Section 6 thereof for prior approval by IAC of all advertising, marketing and promotional materials prior to dissemination.

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

SOLICITOR GENERAL DEVANADERA:

x x x x

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

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

x x x x

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

x x x x

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

x x x x

ASSOCIATE JUSTICE SANTIAGO:

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

SOLICITOR GENERAL DEVANADERA:

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

x x x x

ASSOCIATE JUSTICE SANTIAGO:

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

SOLICITOR GENERAL DEVANADERA:

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

x x x x

ASSOCIATE JUSTICE NAZARIO:

x x x Did I hear you correctly, Madam Solicitor, that there is no absolute ban on advertising of breastmilk substitutes in the Revised Rules?

SOLICITOR GENERAL DEVANADERA:

Yes, your Honor.

ASSOCIATE JUSTICE NAZARIO:

But, would you nevertheless agree that there is an absolute ban on advertising of breastmilk substitutes intended for children two (2) years old and younger?

SOLICITOR GENERAL DEVANADERA:

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

x x x x

x x x Section 11, while it is titled Prohibition, it must be taken in relation with the other Sections, particularly 12 and 13 and 15, Your Honor, because it is recognized that the Inter-Agency Committee has that power to evaluate promotional materials, Your Honor.

ASSOCIATE JUSTICE NAZARIO:

So in short, will you please clarify there's no absolute ban on advertisement regarding milk substitute regarding infants two (2) years below?

SOLICITOR GENERAL DEVANADERA:

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

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

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

SECTION 5. Information and Education –

x x x x

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

x x x x

SECTION 8. Health Workers. –

x x x x

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

x x x x

SECTION 10. Containers/Label –

(a) Containers and/or labels shall be designed to provide the necessary information about the appropriate use of the products, and in such a way as not to discourage breastfeeding.

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

(i) the words "Important Notice" or their equivalent;

(ii) a statement of the superiority of breastfeeding;

(iii) a statement that the product shall be used only on the advice of a health worker as to the need for its use and the proper methods of use; and

(iv) instructions for appropriate preparation, and a warning against the health hazards of inappropriate preparation.

Section 12(b) of the Milk Code designates the DOH as the principal implementing agency for the enforcement of the provisions of the Code. In relation to such responsibility of the DOH, Section 5(a) of the Milk Code states that:

SECTION 5. Information and Education –

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

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

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

SECTION 13. "Total Effect" - Promotion of products within the scope of this Code must be objective and should not equate or make the product appear to be as good or equal to breastmilk or breastfeeding in the advertising concept. It must not in any case undermine breastmilk or breastfeeding. The "total effect" should not directly or indirectly suggest that buying their product would produce better individuals, or resulting in greater love, intelligence, ability, harmony or in any manner bring better health to the baby or other such exaggerated and unsubstantiated claim.

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

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

x x x [T]his Court had, in the past, accepted as sufficient standards the following: "public interest," "justice and equity," "public convenience and welfare," and "simplicity, economy and welfare."65

In this case, correct information as to infant feeding and nutrition is infused with public interest and welfare.

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

Contrary to petitioner's claim, Section 22 of the RIRR does not prohibit the giving of information to health professionals on scientific and factual matters. What it prohibits is the involvement of the manufacturer and distributor

of the products covered by the Code in activities for the promotion, education and production of Information, Education and Communication (IEC) materials regarding breastfeeding that are intended forwomen and children. Said provision cannot be construed to encompass even the dissemination of information to health professionals, as restricted by the Milk Code.

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

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

Petitioner is also mistaken in arguing that Section 22 of the RIRR prohibits milk companies from giving reasearch assistance and continuing education to health professionals. Section 2270 of the RIRR does not pertain to research assistance to or the continuing education of health professionals; rather, it deals with breastfeeding promotion and education for women and children. Nothing in Section 22 of the RIRR prohibits milk companies from giving assistance for research or continuing education to health professionals; hence, petitioner's argument against this particular provision must be struck down.

It is Sections 971 and 1072 of the RIRR which govern research assistance. Said sections of the RIRR provide thatresearch assistance for health workers and researchers may be allowed upon approval of an ethics committee, and with certain disclosure requirements imposed on the milk company and on the recipient of the research award.

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

Petitioner complains that Section 3273 of the RIRR prohibits milk companies from giving assistance, support, logistics or training to health workers. This provision is within the prerogative given to the DOH under Section 8(e) 74 of the Milk Code, which provides that manufacturers and distributors of breastmilk substitutes may assist in researches, scholarships and the continuing education, of health professionals in accordance with the rules and regulations promulgated by the Ministry of Health, now DOH.

6. As to the RIRR's prohibition on donations, said provisions are also consistent with the Milk Code. Section 6(f) of the Milk Code provides that donations may be made by manufacturers and distributors of breastmilk substitutesupon the request or with the approval of the DOH. The law does not proscribe the refusal of donations. The Milk Code leaves it purely to the discretion of the DOH whether to request or accept such donations. The DOH then appropriately exercised its discretion through Section 5175 of the RIRR which sets forth its policy not to request or approve donations from manufacturers and distributors of breastmilk substitutes.

It was within the discretion of the DOH when it provided in Section 52 of the RIRR that any donation from milk companies not covered by the Code should be coursed through the IAC which shall determine whether such donation should be accepted or refused. As reasoned out by respondents, the DOH is not mandated by the Milk Code to accept donations. For that matter, no person or entity can be forced to accept a donation. There is, therefore, no real inconsistency between the RIRR and the law because the Milk Code does not prohibit the DOH from refusing donations.

7. With regard to Section 46 of the RIRR providing for administrative sanctions that are not found in the Milk Code, the Court upholds petitioner's objection thereto.

Respondent's reliance on Civil Aeronautics Board v. Philippine Air Lines, Inc.76 is misplaced. The glaring difference in said case and the present case before the Court is that, in the Civil Aeronautics Board, the Civil Aeronautics Administration (CAA) was expressly granted by the law (R.A. No. 776) the power to impose fines and civil penalties, while the Civil Aeronautics Board (CAB) was granted by the same law the power to review on appeal the order or decision of the CAA

and to determine whether to impose, remit, mitigate, increase or compromise such fine and civil penalties. Thus, the Court upheld the CAB's Resolution imposing administrative fines.

In a more recent case, Perez v. LPG Refillers Association of the Philippines, Inc.,77 the Court upheld the Department of Energy (DOE) Circular No. 2000-06-10 implementing Batas Pambansa (B.P.) Blg. 33. The circular provided for fines for the commission of prohibited acts. The Court found that nothing in the circular contravened the law because the DOE was expressly authorized by B.P. Blg. 33 and R.A. No. 7638 to impose fines or penalties.

In the present case, neither the Milk Code nor the Revised Administrative Code grants the DOH the authority to fix or impose administrative fines. Thus, without any express grant of power to fix or impose such fines, the DOH cannot provide for those fines in the RIRR. In this regard, the DOH again exceeded its authority by providing for such fines or sanctions in Section 46 of the RIRR. Said provision is, therefore, null and void.

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

SECTION 13. Sanctions –

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

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

8. Petitioner’s claim that Section 57 of the RIRR repeals existing laws that are contrary to the RIRR is frivolous.

Section 57 reads:

SECTION 57. Repealing Clause - All orders, issuances, and rules and regulations or parts thereof inconsistent with these revised rules and implementing regulations are hereby repealed or modified accordingly.

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

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

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

Lastly, petitioner makes a "catch-all" allegation that:

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

Petitioner refers to Sections 4(f),82 4(i),83 5(w),84 11,85 22,86 32,87 46,88 and 5289 as the provisions that suppress the trade of milk and, thus, violate the due process clause of the Constitution.

The framers of the constitution were well aware that trade must be subjected to some form of regulation for the public good. Public interest must be upheld over business interests.90 In Pest Management Association of the Philippines v. Fertilizer and Pesticide Authority,91 it was held thus:

x x x Furthermore, as held in Association of Philippine Coconut Desiccators v. Philippine Coconut Authority,despite the fact that "our present Constitution enshrines free enterprise as a policy, it nonetheless reserves to the government the power to intervene whenever necessary to promote the general welfare." There can be no question that the unregulated use or proliferation of pesticides would be hazardous to our environment. Thus, in the aforecited case, the Court declared that "free enterprise does not call for removal of ‘protective regulations’." x x x It must be clearly explained and proven by competent evidence just exactly how such protective regulation would result in the restraint of trade. [Emphasis and underscoring supplied]

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

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

SECTION 5 x x x. (w) "Milk Company" shall refer to the owner, manufacturer, distributor of infant formula, follow-up milk, milk formula, milk supplement, breastmilk substitute or replacement, or by any other description of such nature, including their representatives who promote or otherwise advance their commercial interests in marketing those products;

On the other hand, Section 4 of the Milk Code provides:

(d) "Distributor" means a person, corporation or any other entity in the public or private sector engaged in the business (whether directly or indirectly) of marketing at the wholesale or retail level a product within the scope of this Code. A "primary distributor" is a manufacturer's sales agent, representative, national distributor or broker.

x x x x

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

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

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

The Court is not convinced that the definition of "milk company" provided in the RIRR would bring about any change in the treatment or regulation of "distributors" and "manufacturers" of breastmilk substitutes, as defined under the Milk Code.

Except Sections 4(f), 11 and 46, the rest of the provisions of the RIRR are in consonance with the objective, purpose and intent of the Milk Code, constituting reasonable regulation of an industry which affects public health and welfare and, as

such, the rest of the RIRR do not constitute illegal restraint of trade nor are they violative of the due process clause of the Constitution.

WHEREFORE, the petition is PARTIALLY GRANTED. Sections 4(f), 11 and 46 of Administrative Order No. 2006-0012 dated May 12, 2006 are declared NULL and VOID for being ultra vires. The Department of Health and respondents are PROHIBITED from implementing said provisions.

The Temporary Restraining Order issued on August 15, 2006 is LIFTED insofar as the rest of the provisions of Administrative Order No. 2006-0012 is concerned.

SO ORDERED.

Puno, (Chief Justice), Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Corona, Carpio-Morales, Azcuna, Tinga, Chico-Nazario, Garcia, Velasco, Jr., Nachura, Reyes, JJ., concur.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. 139465           January 18, 2000

SECRETARY OF JUSTICE, petitioner, vs.HON. RALPH C. LANTION, Presiding Judge, Regional Trial Court of Manila, Branch 25, and MARK B. JIMENEZ, respondents.

MELO, J.:

The individual citizen is but a speck of particle or molecule vis-à-vis the vast and overwhelming powers of government. His only guarantee against oppression and tyranny are his fundamental liberties under the Bill of Rights which shield him in times of need. The Court is now called to decide whether to uphold a citizen's basic due process rights, or the government's ironclad duties under a treaty. The bugle sounds and this Court must once again act as the faithful guardian of the fundamental writ.

The petition at our doorstep is cast against the following factual backdrop:

On January 13, 1977, then President Ferdinand E. Marcos issued Presidential Decree No. 1069 "Prescribing the Procedure for the Extradition of Persons Who Have Committed Crimes in a Foreign Country". The Decree is founded on: the doctrine of incorporation under the Constitution; the mutual concern for the suppression of crime both in the state where it was committed and the state where the criminal may have escaped; the extradition treaty with the Republic of Indonesia and the intention of the Philippines to enter into similar treaties with other interested countries; and the need for rules to guide the executive department and the courts in the proper implementation of said treaties.

On November 13, 1994, then Secretary of Justice Franklin M. Drilon, representing the Government of the Republic of the Philippines, signed in Manila the "Extradition Treaty Between the Government of the Republic of the Philippines and the Government of the United States of America" (hereinafter referred to as the RP-US Extradition Treaty). The Senate, by way of Resolution No. 11, expressed its concurrence in the ratification of said treaty. It also expressed its concurrence in the Diplomatic Notes correcting Paragraph (5)(a), Article 7 thereof (on the admissibility of the documents accompanying an extradition request upon certification by the principal diplomatic or consular officer of the requested state resident in the Requesting State).

On June 18, 1999, the Department of Justice received from the Department of Foreign Affairs U.S. Note Verbale No. 0522 containing a request for the extradition of private respondent Mark Jimenez to the United States. Attached to the Note Verbale were the Grand Jury Indictment, the warrant of arrest issued by the U.S. District Court, Southern District of Florida, and other supporting documents for said extradition. Based on the papers submitted, private respondent appears to be charged in the United States with violation of the following provisions of the United States Code (USC):

A) 18 USC 371 (Conspiracy to commit offense or to defraud the United States; two [2] counts; Maximum Penalty — 5 years on each count);

B) 26 USC 7201 (Attempt to evade or defeat tax; four [4] counts; Maximum Penalty — 5 years on each count);

C) 18 USC 1343 (Fraud by wire, radio, or television; two [2] counts; Maximum Penalty — 5 years on each count);

D) 18 USC 1001 (False statement or entries; six [6] counts; Maximum Penalty — 5 years on each count);

E) 2 USC 441f (Election contributions in name of another; thirty-three [33] counts; Maximum Penalty — less than one year).

(p. 14, Rollo.)

On the same day, petitioner issued Department Order No. 249 designating and authorizing a panel of attorneys to take charge of and to handle the case pursuant to Section 5(1) of Presidential Decree No. 1069. Accordingly, the panel began with the "technical evaluation and assessment" of the extradition request and the documents in support thereof. The panel found that the "official English translation of some documents in Spanish were not attached to the request and that there are some other matters that needed to be addressed" (p. 15, Rollo).

Pending evaluation of the aforestated extradition documents, private respondent, through counsel, wrote a letter dated July 1, 1999 addressed to petitioner requesting copies of the official extradition request from the U.S. Government, as well as all documents and papers submitted therewith; and that he be given ample time to comment on the request after he shall have received copies of the requested papers. Private respondent also requested that the proceedings on the matter be held in abeyance in the meantime.

Later, private respondent requested that preliminary, he be given at least a copy of, or access to, the request of the United States Government, and after receiving a copy of the Diplomatic Note, a period of time to amplify on his request.

In response to private respondent's July 1, 1999 letter, petitioner, in a reply-letter dated July 13, 1999 (but received by private respondent only on August 4, 1999), denied the foregoing requests for the following reasons:

1. We find it premature to furnish you with copies of the extradition request and supporting documents from the United States Government, pending evaluation by this Department of the sufficiency of the extradition documents submitted in accordance with the provisions of the extradition treaty and our extradition law. Article 7 of the Extradition Treaty between the Philippines and the United States enumerates the documentary requirements and establishes the procedures under which the documents submitted shall be received and admitted as evidence. Evidentiary requirements under our domestic law are also set forth in Section 4 of P.D. No. 1069.

Evaluation by this Department of the aforementioned documents is not a preliminary investigation nor akin to preliminary investigation of criminal cases. We merely determine whether the procedures and requirements under the relevant law and treaty have been complied with by the Requesting Government. The constitutionally guaranteed rights of the accused in all criminal prosecutions are therefore not available.

It is only after the filing of the petition for extradition when the person sought to be extradited will be furnished by the court with copies of the petition, request and extradition documents and this Department will not pose any objection to a request for ample time to evaluate said documents.

2. The formal request for extradition of the United States contains grand jury information and documents obtained through grand jury process covered by strict secrecy rules under United States law. The United States had to secure orders from the concerned District Courts authorizing the United States to disclose certain grand jury information to Philippine government and law enforcement personnel for the purpose of extradition of Mr. Jimenez. Any further disclosure of the said information is not authorized by the United States District Courts. In this particular extradition request the United States Government requested the Philippine Government to prevent unauthorized disclosure of the subject information. This Department's denial of your request is consistent with Article 7 of the RP-US Extradition Treaty which provides that the Philippine Government must represent the interests of the United States in any proceedings arising out of a request for extradition. The Department of Justice under P.D. No. 1069 is the counsel of the foreign governments in all extradition requests.

3. This Department is not in a position to hold in abeyance proceedings in connection with an extradition request. Article 26 of the Vienna Convention on the Law of Treaties, to which we are a party provides that "[E]very treaty in force is binding upon the parties to it and must be performed by them in good faith". Extradition is a tool of criminal law enforcement and to be effective, requests for extradition or surrender of accused or convicted persons must be processed expeditiously.

(pp. 77-78, Rollo.)

Such was the state of affairs when, on August 6, 1999, private respondent filed with the Regional Trial Court of the National Capital Judicial Region a petition against the Secretary of Justice, the Secretary of Foreign Affairs, and the Director of the National Bureau of Investigation, for mandamus (to compel herein petitioner to furnish private respondent the extradition documents, to give him access thereto, and to afford him an opportunity to comment on, or oppose, the extradition request, and thereafter to evaluate the request impartially, fairly and objectively); certiorari (to set aside herein petitioner's letter dated July 13, 1999); and prohibition (to restrain petitioner from considering the extradition request and from filing an extradition petition in court; and to enjoin the Secretary of Foreign Affairs and the Director of the NBI from performing any act directed to the extradition of private respondent to the United States), with an application for the issuance of a temporary restraining order and a writ of preliminary injunction (pp. 104-105, Rollo).

The aforementioned petition was docketed as Civil Case No. 99-94684 and thereafter raffled to Branch 25 of said regional trial court stationed in Manila which is presided over by the Honorable Ralph C. Lantion.

After due notice to the parties, the case was heard on August 9, 1999. Petitioner, who appeared in his own behalf, moved that he be given ample time to file a memorandum, but the same was denied.

On August 10, 1999, respondent judge issued an order dated the previous day, disposing:

WHEREFORE, this Court hereby Orders the respondents, namely: the Secretary of Justice, the Secretary of Foreign Affairs and the Director of the National Bureau of Investigation, their agents and/or representatives to maintain the status quo by refraining from committing the acts complained of; from conducting further proceedings in connection with the request of the United States Government for the extradition of the petitioner; from filing the corresponding Petition with a Regional Trial court; and from performing any act directed to the extradition of the petitioner to the United States, for a period of twenty (20) days from service on respondents of this Order, pursuant to Section 5, Rule 58 of the 1997 Rules of Court.

The hearing as to whether or not this Court shall issue the preliminary injunction, as agreed upon by the counsels for the parties herein, is set on August 17, 1999 at 9:00 o'clock in the morning. The respondents are, likewise, ordered to file their written comment and/or opposition to the issuance of a Preliminary Injunction on or before said date.

SO ORDERED.

(pp. 110-111, Rollo.)

Forthwith, petitioner initiated the instant proceedings, arguing that:

PUBLIC RESPONDENT ACTED WITHOUT OR IN EXCESS OF JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN ISSUING THE TEMPORARY RESTRAINING ORDER BECAUSE:

I.

BY ORDERING HEREIN PETITIONER TO REFRAIN FROM COMMITTING THE ACTS COMPLAINED OF,I.E., TO DESIST FROM REFUSING PRIVATE RESPONDENT ACCESS TO THE OFFICIAL EXTRADITION REQUEST AND DOCUMENTS AND FROM DENYING PRIVATE RESPONDENT AN OPPORTUNITY TO FILE A COMMENT ON, OR OPPOSITION TO, THE REQUEST, THE MAIN PRAYER FOR A WRIT OFMANDAMUS IN THE PETITION FOR MANDAMUS, CERTIORARI AND PROHIBITION WAS, IN EFFECT, GRANTED SO AS TO CONSTITUTE AN ADJUDICATION ON THE MERITS OF THE MANDAMUS ISSUES;

II.

PETITIONER WAS UNQUALIFIEDLY PREVENTED FROM PERFORMING LEGAL DUTIES UNDER THE EXTRADITION TREATY AND THE PHILIPPINE EXTRADITION LAW;

III.

THE PETITION FOR (MANDAMUS), CERTIORARI AND PROHIBITION IS, ON ITS FACE, FORMALLY AND SUBSTANTIALLY DEFICIENT; AND

IV.

PRIVATE RESPONDENT HAS NO RIGHT IN ESSE THAT NEEDS PROTECTION AND ENFORCEMENT, AND WILL NOT SUFFER ANY IRREPARABLE INJURY.

(pp. 19-20, Rollo.)

On August 17, 1999, the Court required private respondent to file his comment. Also issued, as prayed for, was a temporary restraining order (TRO) providing:

NOW, THEREFORE, effective immediately and continuing until further orders from this Court, You, Respondent Judge Ralph C. Lantion, your agents, representatives or any person or persons acting in your place or stead are hereby ORDERED to CEASE and DESIST from enforcing the assailed order dated August 9, 1999 issued by public respondent in Civil Case No. 99-94684.

GIVEN by the Honorable HILARIO G. DAVIDE, JR., Chief Justice, Supreme Court of the Philippines, this 17th day of August 1999.

(pp. 120-121, Rollo.)

The case was heard on oral argument on August 31, 1999, after which the parties, as directed, filed their respective memoranda.

From the pleadings of the opposing parties, both procedural and substantive issues are patent. However, a review of these issues as well as the extensive arguments of both parties, compel us to delineate the focal point raised by the pleadings: During the evaluation stage of the extradition proceedings, is private respondent entitled to the two basic due process rights of notice and hearing? An affirmative answer would necessarily render the proceedings at the trial court, moot and academic (the issues of which are substantially the same as those before us now), while a negative resolution would call for the immediate lifting of the TRO issued by this Court dated August 24, 1999, thus allowing petitioner to fast-track the process leading to the filing of the extradition petition with the proper regional trial court. Corollarily, in the event that private respondent is adjudged entitled to basic due process rights at the evaluation stage of the extradition proceedings, would this entitlement constitute a breach of the legal commitments and obligations of the Philippine Government under the RP-US Extradition Treaty? And assuming that the result would indeed be a breach, is there any conflict between private respondent's basic due process rights and the provisions of the RP-US Extradition Treaty?

The issues having transcendental importance, the Court has elected to go directly into the substantive merits of the case, brushing aside peripheral procedural matters which concern the proceedings in Civil Case No. 99-94684, particularly the propriety of the filing of the petition therein, and of the issuance of the TRO of August 17, 1999 by the trial court.

To be sure, the issues call for a review of the extradition procedure. The RP-US Extradition Treaty which was executed only on November 13, 1994, ushered into force the implementing provisions of Presidential Decree No. 1069, also called as the Philippine Extradition Law. Section 2(a) thereof defines extradition as "the removal of an accused from the Philippines with the object of placing him at the disposal of foreign authorities to enable the requesting state or government to hold him in connection with any criminal investigation directed against him or the execution of a penalty imposed on him under the penal or criminal law of the requesting state or government." The portions of the Decree relevant to the instant case which involves a charged and not convicted individual, are abstracted as follows:

The Extradition Request

The request is made by the Foreign Diplomat of the Requesting State, addressed to the Secretary of Foreign Affairs, and shall be accompanied by:

1. The original or an authentic copy of the criminal charge and the warrant of arrest issued by the authority of the Requesting State having jurisdiction over the matter, or some other instruments having equivalent legal force;

2. A recital of the acts for which extradition is requested, with the fullest particulars as to the name and identity of the accused, his whereabouts in the Philippines, if known, the acts or omissions complained of, and the time and place of the commission of these acts;

3. The text of the applicable law or a statement of the contents of said law, and the designation or description of the offense by the law, sufficient for evaluation of the request; and

4. Such other documents or information in support of the request.

(Sec. 4. Presidential Decree No. 1069.)

Sec. 5 of the Presidential Decree, which sets forth the duty of the Secretary of Foreign Affairs, pertinently provides

. . . (1) Unless it appears to the Secretary of Foreign Affairs that the request fails to meet the requirements of this law and the relevant treaty or convention, he shall forward the request together with the related documents to the Secretary of Justice, who shall immediately designate and authorize an attorney in his office to take charge of the case.

The above provision shows only too clearly that the executive authority given the task of evaluating the sufficiency of the request and the supporting documents is the Secretary of Foreign Affairs. What then is the coverage of this task?

In accordance with Paragraphs 2 and 3, Article 7 of the RP-US Extradition Treaty, the executive authority must ascertain whether or not the request is supported by:

1. Documents, statements, or other types of information which describe the identity and probable location of the person sought;

2. A statement of the facts of the offense and the procedural history of the case;

3. A statement of the provisions of the law describing the essential elements of the offense for which extradition is requested;

4. A statement of the provisions of law describing the punishment for the offense;

5. A statement of the provisions of the law describing any time limit on the prosecution or the execution of punishment for the offense;

6. Documents, statements, or other types of information specified in paragraph 3 or paragraph 4 of said Article, as applicable.

(Paragraph 2, Article 7, Presidential Decree No. 1069.)

7. Such evidence as, according to the law of the Requested State, would provide probable cause for his arrest and committal for trial if the offense had been committed there;

8. A copy of the warrant or order of arrest issued by a judge or other competent authority; and

9. A copy of the charging document.

(Paragraph 3, ibid.)

The executive authority (Secretary of Foreign Affairs) must also see to it that the accompanying documents received in support of the request had been certified by the principal diplomatic or consular officer of the Requested State resident in the Requesting State (Embassy Note No. 052 from U. S. Embassy; Embassy Note No. 951309 from the Department of Foreign Affairs).

In this light, Paragraph 3, Article 3 of the Treaty provides that "[e]xtradition shall not be granted if the executive authority of the Requested State determines that the request is politically motivated, or that the offense is a military offense which is

not punishable under non-military penal legislation."

The Extradition Petition

Upon a finding made by the Secretary of Foreign Affairs that the extradition request and its supporting documents are sufficient and complete in form and substance, he shall deliver the same to the Secretary of Justice, who shall immediately designate and authorize an attorney in his office to take charge of the case (Paragraph [1], Section 5, P.D. No. 1069). The lawyer designated shall then file a written petition with the proper regional trial court of the province or city, with a prayer that the court take the extradition request under consideration (Paragraph [2], ibid.).

The presiding judge of the regional trial court, upon receipt of the petition for extradition, shall, as soon as practicable, issue an order summoning the prospective extraditee to appear and to answer the petition on the day and hour fixed in the order. The judge may issue a warrant of arrest if it appears that the immediate arrest and temporary detention of the accused will best serve the ends of justice (Paragraph [1], Section 6, ibid.), particularly to prevent the flight of the prospective extraditee.

The Extradition Hearing

The Extradition Law does not specifically indicate whether the extradition proceeding is criminal, civil, or a special proceeding. Nevertheless, Paragraph [1], Section 9 thereof provides that in the hearing of the extradition petition, the provisions of the Rules of Court, insofar as practicable and not inconsistent with the summary nature of the proceedings, shall apply. During the hearing, Section 8 of the Decree provides that the attorney having charge of the case may, upon application by the Requesting State, represent the latter throughout the proceedings.

Upon conclusion of the hearing, the court shall render a decision granting the extradition and giving the reasons therefor upon a showing of the existence of a prima facie case, or dismiss the petition (Section 10, ibid.). Said decision is appealable to the Court of Appeals, whose decision shall be final and immediately executory (Section 12, ibid.). The provisions of the Rules of Court governing appeal in criminal cases in the Court of Appeals shall apply in the aforementioned appeal, except for the required 15-day period to file brief (Section 13, ibid.).

The trial court determines whether or not the offense mentioned in the petition is extraditable based on the application of the dual criminality rule and other conditions mentioned in Article 2 of the RP-US Extradition Treaty. The trial court also determines whether or not the offense for which extradition is requested is a political one (Paragraph [1], Article 3, RP-US Extradition Treaty).1âwphi1.nêt

With the foregoing abstract of the extradition proceedings as backdrop, the following query presents itself: What is the nature of the role of the Department of Justice at the evaluation stage of the extradition proceedings?

A strict observance of the Extradition Law indicates that the only duty of the Secretary of Justice is to file the extradition petition after the request and all the supporting papers are forwarded to him by the Secretary of Foreign Affairs. It is the latter official who is authorized to evaluate the extradition papers, to assure their sufficiency, and under Paragraph [3], Article 3 of the Treaty, to determine whether or not the request is politically motivated, or that the offense is a military offense which is not punishable under non-military penal legislation.Ipso facto, as expressly provided in Paragraph [1], Section 5 of the Extradition Law, the Secretary of Justice has the ministerial duty of filing the extradition papers.

However, looking at the factual milieu of the case before us, it would appear that there was failure to abide by the provisions of Presidential Decree No. 1069. For while it is true that the extradition request was delivered to the Department of Foreign Affairs on June 17, 1999, the following day or less than 24 hours later, the Department of Justice received the request, apparently without the Department of Foreign Affairs discharging its duty of thoroughly evaluating the same and its accompanying documents. The statement of an assistant secretary at the Department of Foreign Affairs that his Department, in this regard, is merely acting as a post office, for which reason he simply forwarded the request to the Department of Justice, indicates the magnitude of the error of the Department of Foreign Affairs in taking lightly its responsibilities. Thereafter, the Department of Justice took it upon itself to determine the completeness of the documents and to evaluate the same to find out whether they comply with the requirements laid down in the Extradition Law and the RP-US Extradition Treaty. Petitioner ratiocinates in this connection that although the Department of Justice had no obligation to evaluate the extradition documents, the Department also had to go over them so as to be able to prepare an extradition petition (tsn, August 31, 1999, pp. 24-25). Notably, it was also at this stage where private respondent insisted on the following; (1) the right to be furnished the request and the supporting papers; (2) the right to be heard which consists in having a reasonable period of time to oppose the request, and to present evidence in support of the

opposition; and (3) that the evaluation proceedings be held in abeyance pending the filing of private respondent's opposition to the request.

The two Departments seem to have misread the scope of their duties and authority, one abdicating its powers and the other enlarging its commission. The Department of Foreign Affairs, moreover, has, through the Solicitor General, filed a manifestation that it is adopting the instant petition as its own, indirectly conveying the message that if it were to evaluate the extradition request, it would not allow private respondent to participate in the process of evaluation.

Plainly then, the record cannot support the presumption of regularity that the Department of Foreign Affairs thoroughly reviewed the extradition request and supporting documents and that it arrived at a well-founded judgment that the request and its annexed documents satisfy the requirements of law. The Secretary of Justice, eminent as he is in the field of law, could not privately review the papers all by himself. He had to officially constitute a panel of attorneys. How then could the DFA Secretary or his undersecretary, in less than one day, make the more authoritative determination?

The evaluation process, just like the extradition proceedings proper, belongs to a class by itself. It is sui generis. It is not a criminal investigation, but it is also erroneous to say that it is purely an exercise of ministerial functions. At such stage, the executive authority has the power: (a) to make a technical assessment of the completeness and sufficiency of the extradition papers; (b) to outrightly deny the request if on its face and on the face of the supporting documents the crimes indicated are not extraditable; and (c) to make a determination whether or not the request is politically motivated, or that the offense is a military one which is not punishable under non-military penal legislation (tsn, August 31, 1999, pp. 28-29; Article 2 & and Paragraph [3], Article 3, RP-US Extradition Treaty). Hence, said process may be characterized as an investigative or inquisitorial process in contrast to a proceeding conducted in the exercise of an administrative body's quasi-judicial power.

In administrative law, a quasi-judicial proceeding involves: (a) taking and evaluation of evidence; (b) determining facts based upon the evidence presented; and (c) rendering an order or decision supported by the facts proved (De Leon, Administrative Law: Text and Cases, 1993 ed., p. 198, citing Morgan vs. United States, 304 U.S. 1). Inquisitorial power, which is also known as examining or investigatory power, is one or the determinative powers of an administrative body which better enables it to exercise its quasi-judicial authority (Cruz, Phil. Administrative Law, 1996 ed., p. 26). This power allows the administrative body to inspect the records and premises, and investigate the activities, of persons or entities coming under its jurisdiction (Ibid., p. 27), or to require disclosure of information by means or accounts, records, reports, testimony of witnesses, production of documents, or otherwise (De Leon, op. cit., p. 64).

The power of investigation consists in gathering, organizing, and analyzing evidence, which is a useful aid or tool in an administrative agency's performance of its rule-making or quasi-judicial functions. Notably, investigation is indispensable to prosecution.

In Ruperto v. Torres (100 Phil. 1098 [1957], unreported), the Court had occasion to rule on the functions of an investigatory body with the sole power of investigation. It does not exercise judicial functions and its power is limited to investigating the facts and making findings in respect thereto. The Court laid down the test of determining whether an administrative body is exercising judicial functions or merely investigatory functions: Adjudication signifies the exercise of power and authority to adjudicate upon the rights and obligations of the parties before it. Hence, if the only purpose for investigation is to evaluate evidence submitted before it based on the facts and circumstances presented to it, and if the agency is not authorized to make a final pronouncement affecting the parties, then there is an absence of judicial discretion and judgment.

The above description in Ruperto applies to an administrative body authorized to evaluate extradition documents. The body has no power to adjudicate in regard to the rights and obligations of both the Requesting State and the prospective extraditee. Its only power is to determine whether the papers comply with the requirements of the law and the treaty and, therefore, sufficient to be the basis of an extradition petition. Such finding is thus merely initial and not final. The body has no power to determine whether or not the extradition should be effected. That is the role of the court. The body's power is limited to an initial finding of whether or not the extradition petition can be filed in court.

It is to be noted, however, that in contrast to ordinary investigations, the evaluation procedure is characterized by certain peculiarities. Primarily, it sets into motion the wheels of the extradition process. Ultimately, it may result in the deprivation of liberty of the prospective extraditee. This deprivation can be effected at two stages: First, the provisional arrest of the prospective extraditee pending the submission of the request. This is so because the Treaty provides that in case of urgency, a contracting party may request the provisional arrest of the person sought pending presentation of the request (Paragraph [1], Article 9, RP-US Extradition Treaty), but he shall be automatically discharged after 60 days if no request is submitted (Paragraph 4). Presidential Decree No. 1069 provides for a shorter period of 20 days after which the arrested

person could be discharged (Section 20[d]). Logically, although the Extradition Law is silent on this respect, the provisions only mean that once a request is forwarded to the Requested State, the prospective extraditee may be continuously detained, or if not, subsequently rearrested (Paragraph [5], Article 9, RP-US Extradition Treaty), for he will only be discharged if no request is submitted. Practically, the purpose of this detention is to prevent his possible flight from the Requested State. Second, the temporary arrest of the prospective extraditee during the pendency of the extradition petition in court (Section 6, Presidential Decree No. 1069).

Clearly, there is an impending threat to a prospective extraditee's liberty as early as during the evaluation stage. It is not only an imagined threat to his liberty, but a very imminent one.

Because of these possible consequences, we conclude that the evaluation process is akin to an administrative agency conducting an investigative proceeding, the consequences of which are essentially criminal since such technical assessment sets off or commences the procedure for, and ultimately, the deprivation of liberty of a prospective extraditee. As described by petitioner himself, this is a "tool" for criminal law enforcement (p. 78,Rollo). In essence, therefore, the evaluation process partakes of the nature of a criminal investigation. In a number of cases, we had occasion to make available to a respondent in an administrative case or investigation certain constitutional rights that are ordinarily available only in criminal prosecutions. Further, as pointed out by Mr. Justice Mendoza during the oral arguments, there are rights formerly available only at the trial stage that had been advanced to an earlier stage in the proceedings, such as the right to counsel and the right against self-incrimination (tsn, August 31, 1999, p. 135; Escobedo vs. Illinois, 378 U.S. 478; Gideon vs. Wainwright, 372 U.S. 335; Miranda vs. Arizona, 384 U.S. 436).

In Pascual v. Board of Medical Examiners (28 SCRA 344 [1969]), we held that the right against self-incrimination under Section 17, Article III of the 1987 Constitution which is ordinarily available only in criminal prosecutions, extends to administrative proceedings which possess a criminal or penal aspect, such as an administrative investigation of a licensed physician who is charged with immorality, which could result in his loss of the privilege to practice medicine if found guilty. The Court, citing the earlier case of Cabal vs. Kapunan (6 SCRA 1059 [1962]), pointed out that the revocation of one's license as a medical practitioner, is an even greater deprivation than forfeiture of property.

Cabal vs. Kapunan (supra) involved an administrative charge of unexplained wealth against a respondent which was filed under Republic Act No. 1379, or the Anti-Graft Law. Again, we therein ruled that since the investigation may result in forfeiture of property, the administrative proceedings are deemed criminal or penal, and such forfeiture partakes the nature of a penalty. There is also the earlier case of Almeda, Sr. vs. Perez (5 SCRA 970 [1962]), where the Court, citing American jurisprudence, laid down the test to determine whether a proceeding is civil or criminal: If the proceeding is under a statute such that if an indictment is presented the forfeiture can be included in the criminal case, such proceeding is criminal in nature, although it may be civil in form; and where it must be gathered from the statute that the action is meant to be criminal in its nature, it cannot be considered as civil. If, however, the proceeding does not involve the conviction of the wrongdoer for the offense charged, the proceeding is civil in nature.

The cases mentioned above refer to an impending threat of deprivation of one's property or property right. No less is this true, but even more so in the case before us, involving as it does the possible deprivation of liberty, which, based on the hierarchy of constitutionally protected rights, is placed second only to life itself and enjoys precedence over property, for while forfeited property can be returned or replaced, the time spent in incarceration is irretrievable and beyond recompense.

By comparison, a favorable action in an extradition request exposes a person to eventual extradition to a foreign country, thus saliently exhibiting the criminal or penal aspect of the process. In this sense, the evaluation procedure is akin to a preliminary investigation since both procedures may have the same result — the arrest and imprisonment of the respondent or the person charged. Similar to the evaluation stage of extradition proceedings, a preliminary investigation, which may result in the filing of an information against the respondent, can possibly lead to his arrest, and to the deprivation of his liberty.

Petitioner's reliance on Wright vs. Court of Appeals (235 SCRA 241 [1992]) (p. 8, petitioner's Memorandum) that the extradition treaty is neither a piece of criminal legislation nor a criminal procedural statute is not well-taken.Wright is not authority for petitioner's conclusion that his preliminary processing is not akin to a preliminary investigation. The characterization of a treaty in Wright was in reference to the applicability of the prohibition against an ex post facto law. It had nothing to do with the denial of the right to notice, information, and hearing.

As early as 1884, the United States Supreme Court ruled that "any legal proceeding enforced by public authority, whether sanctioned by age or custom, or newly devised in the discretion of the legislative power, in furtherance of the general public good, which regards and preserved these principles of liberty and justice, must be held to be due process of law"

(Hurtado vs. California, 110 U.S. 516). Compliance with due process requirements cannot be deemed non-compliance with treaty commitments.

The United States and the Philippines share a mutual concern about the suppression and punishment of crime in their respective jurisdictions. At the same time, both States accord common due process protection to their respective citizens.

The due process clauses in the American and Philippine Constitutions are not only worded in exactly identical language and terminology, but more importantly, they are alike in what their respective Supreme Courts have expounded as the spirit with which the provisions are informed and impressed, the elasticity in their interpretation, their dynamic and resilient character which make them capable of meeting every modern problem, and their having been designed from earliest time to the present to meet the exigencies of an undefined and expanding future. The requirements of due process are interpreted in both the United States and the Philippines as not denying to the law the capacity for progress and improvement. Toward this effect and in order to avoid the confines of a legal straitjacket, the courts instead prefer to have the meaning of the due process clause "gradually ascertained by the process of inclusion and exclusion in the course of the decisions of cases as they arise" (Twining vs. New Jersey, 211 U.S. 78). Capsulized, it refers to "the embodiment of the sporting idea of fair play" (Ermita-Malate Hotel and Motel Owner's Association vs. City Mayor of Manila, 20 SCRA 849 [1967]). It relates to certain immutable principles of justice which inhere in the very idea of free government (Holden vs. Hardy, 169 U.S. 366).

Due process is comprised of two components — substantive due process which requires the intrinsic validity of the law in interfering with the rights of the person to his life, liberty, or property, and procedural due process which consists of the two basic rights of notice and hearing, as well as the guarantee of being heard by an impartial and competent tribunal (Cruz, Constitutional Law, 1993 Ed., pp. 102-106).

True to the mandate of the due process clause, the basic rights of notice and hearing pervade not only in criminal and civil proceedings, but in administrative proceedings as well. Non-observance of these rights will invalidate the proceedings. Individuals are entitled to be notified of any pending case affecting their interests, and upon notice, they may claim the right to appear therein and present their side and to refute the position of the opposing parties (Cruz, Phil. Administrative Law, 1996 ed., p. 64).

In a preliminary investigation which is an administrative investigatory proceeding, Section 3, Rule 112 of the Rules of Court guarantees the respondent's basic due process rights, granting him the right to be furnished a copy of the complaint, the affidavits, and other supporting documents, and the right to submit counter-affidavits and other supporting documents within ten days from receipt thereof. Moreover, the respondent shall have the right to examine all other evidence submitted by the complainant.

These twin rights may, however, be considered dispensable in certain instances, such as:

1. In proceeding where there is an urgent need for immediate action, like the summary abatement of a nuisance per se (Article 704, Civil Code), the preventive suspension of a public servant facing administrative charges (Section 63, Local Government Code, B.P. Blg. 337), the padlocking of filthy restaurants or theaters showing obscene movies or like establishments which are immediate threats to public health and decency, and the cancellation of a passport of a person sought for criminal prosecution;

2. Where there is tentativeness of administrative action, that is, where the respondent is not precluded from enjoying the right to notice and hearing at a later time without prejudice to the person affected, such as the summary distraint and levy of the property of a delinquent taxpayer, and the replacement of a temporary appointee; and

3. Where the twin rights have previously been offered but the right to exercise them had not been claimed.

Applying the above principles to the case at bar, the query may be asked: Does the evaluation stage of the extradition proceedings fall under any of the described situations mentioned above?

Let us take a brief look at the nature of American extradition proceedings which are quite noteworthy considering that the subject treaty involves the U.S. Government.

American jurisprudence distinguishes between interstate rendition or extradition which is based on the Extradition Clause in the U.S. Constitution (Art. IV, §2 cl 2), and international extradition proceedings. In interstate rendition or extradition, the governor of the asylum state has the duty to deliver the fugitive to the demanding state. The Extradition Clause and the

implementing statute are given a liberal construction to carry out their manifest purpose, which is to effect the return as swiftly as possible of persons for trial to the state in which they have been charged with crime (31A Am Jur 2d 754-755). In order to achieve extradition of an alleged fugitive, the requisition papers or the demand must be in proper form, and all the elements or jurisdictional facts essential to the extradition must appear on the face of the papers, such as the allegation that the person demanded was in the demanding state at the time the offense charged was committed, and that the person demanded is charged with the commission of the crime or that prosecution has been begun in the demanding state before some court or magistrate (35 C.J.S. 406-407). The extradition documents are then filed with the governor of the asylum state, and must contain such papers and documents prescribed by statute, which essentially include a copy of the instrument charging the person demanded with a crime, such as an indictment or an affidavit made before a magistrate. Statutory requirements with respect to said charging instrument or papers are mandatory since said papers are necessary in order to confer jurisdiction on the government of the asylum state to effect extradition (35 C.J.S. 408-410). A statutory provision requiring duplicate copies of the indictment, information, affidavit, or judgment of conviction or sentence and other instruments accompanying the demand or requisitions be furnished and delivered to the fugitive or his attorney is directory. However, the right being such a basic one has been held to be a right mandatory on demand (Ibid., p. 410, citing Ex parte Moore, 256 S.W. 2d 103, 158 Tex. Cr. 407 andEx parte Tucker, Cr., 324, S.W.2d 853).

In international proceedings, extradition treaties generally provide for the presentation to the executive authority of the Requested State of a requisition or demand for the return of the alleged offender, and the designation of the particular officer having authority to act in behalf of the demanding nation (31A Am Jur 2d 815).

In petitioner's memorandum filed on September 15, 1999, he attached thereto a letter dated September 13, 1999 from the Criminal Division of the U.S. Department of Justice, summarizing the U.S. extradition procedures and principles, which are basically governed by a combination of treaties (with special reference to the RP-US Extradition Treaty), federal statutes, and judicial decisions, to wit:

1. All requests for extradition are transmitted through the diplomatic channel. In urgent cases, requests for the provincial arrest of an individual may be made directly by the Philippine Department of Justice to the U.S. Department of Justice, and vice-versa. In the event of a provisional arrest, a formal request for extradition is transmitted subsequently through the diplomatic channel.

2. The Department of State forwards the incoming Philippine extradition request to the Department of Justice. Before doing so, the Department of State prepares a declaration confirming that a formal request has been made, that the treaty is in full force and effect, that under Article 17 thereof the parties provide reciprocal legal representation in extradition proceedings, that the offenses are covered as extraditable offenses under Article 2 thereof, and that the documents have been authenticated in accordance with the federal statute that ensures admissibility at any subsequent extradition hearing.

3. A judge or magistrate judge is authorized to issue a warrant for the arrest of the prospective extraditee (18 U.S.C. §3184). Said judge or magistrate is authorized to hold a hearing to consider the evidence offered in support of the extradition request (Ibid.)

4. At the hearing, the court must determine whether the person arrested is extraditable to the foreign country. The court must also determine that (a) it has jurisdiction over the defendant and jurisdiction to conduct the hearing; (b) the defendant is being sought for offenses for which the applicable treaty permits extradition; and (c) there is probable cause to believe that the defendant is the person sought and that he committed the offenses charged (Ibid.)

5. The judge or magistrate judge is vested with jurisdiction to certify extraditability after having received a "complaint made under oath, charging any person found within his jurisdiction" with having committed any of the crimes provided for by the governing treaty in the country requesting extradition (Ibid.) [In this regard, it is noted that a long line of American decisions pronounce that international extradition proceedings partake of the character of a preliminary examination before a committing magistrate, rather than a trial of the guilt or innocence of the alleged fugitive (31A Am Jur 2d 826).]

6. If the court decides that the elements necessary for extradition are present, it incorporates its determinations in factual findings and conclusions of law and certifies the person's extraditability. The court then forwards this certification of extraditability to the Department of State for disposition by the Secretary of State. The ultimate decision whether to surrender an individual rests with the Secretary of State (18 U.S.C. §3186).

7. The subject of an extradition request may not litigate questions concerning the motives of the requesting government in seeking his extradition. However, a person facing extradition may present whatever information he deems relevant to the Secretary of State, who makes the final determination whether to surrender an individual to the foreign government concerned.

From the foregoing, it may be observed that in the United States, extradition begins and ends with one entity — the Department of State — which has the power to evaluate the request and the extradition documents in the beginning, and, in the person of the Secretary of State, the power to act or not to act on the court's determination of extraditability. In the Philippine setting, it is the Department of Foreign Affairs which should make the initial evaluation of the request, and having satisfied itself on the points earlier mentioned (see pp. 10-12), then forwards the request to the Department of Justice for the preparation and filing of the petition for extradition. Sadly, however, the Department of Foreign Affairs, in the instant case, perfunctorily turned over the request to the Department of Justice which has taken over the task of evaluating the request as well as thereafter, if so warranted, preparing, filing, and prosecuting the petition for extradition.

Private respondent asks what prejudice will be caused to the U.S. Government should the person sought to be extradited be given due process rights by the Philippines in the evaluation stage. He emphasizes that petitioner's primary concern is the possible delay in the evaluation process.

We agree with private respondent's citation of an American Supreme Court ruling:

The establishment of prompt efficacious procedures to achieve legitimate state ends is a proper state interest worthy of cognizance in constitutional adjudication. But the Constitution recognizes higher values than speed and efficiency. Indeed, one might fairly say of the Bill of Rights in general, and the Due Process Clause, in particular, that they were designed to protect the fragile values of a vulnerable citizenry from the overbearing concern for efficiency and efficacy that may characterize praiseworthy government officials no less, and perhaps more, than mediocre ones.

(Stanley vs. Illinois, 404 U.S. 645, 656)

The United States, no doubt, shares the same interest as the Philippine Government that no right — that of liberty — secured not only by the Bills of Rights of the Philippines Constitution but of the United States as well, is sacrificed at the altar of expediency.

(pp. 40-41, Private Respondent's Memorandum.)

In the Philippine context, this Court's ruling is invoked:

One of the basic principles of the democratic system is that where the rights of the individual are concerned, the end does not justify the means. It is not enough that there be a valid objective; it is also necessary that the means employed to pursue it be in keeping with the Constitution. Mere expediency will not excuse constitutional shortcuts. There is no question that not even the strongest moral conviction or the most urgent public need, subject only to a few notable exceptions, will excuse the bypassing of an individual's rights. It is no exaggeration to say that a person invoking a right guaranteed under Article III of the Constitution is a majority of one even as against the rest of the nation who would deny him that right (Association of Small Landowners in the Philippines, Inc. vs. Secretary of Agrarian Reform, 175 SCRA 343, 375-376 [1989]).

There can be no dispute over petitioner's argument that extradition is a tool of criminal law enforcement. To be effective, requests for extradition or the surrender of accused or convicted persons must be processed expeditiously. Nevertheless, accelerated or fast-tracked proceedings and adherence to fair procedures are, however, not always incompatible. They do not always clash in discord. Summary does not mean precipitous haste. It does not carry a disregard of the basic principles inherent in "ordered liberty."

Is there really an urgent need for immediate action at the evaluation stage? At that point, there is no extraditee yet in the strict sense of the word. Extradition may or may not occur. In interstate extradition, the governor of the asylum state may not, in the absence of mandatory statute, be compelled to act favorably (37 C.J.S. 387) since after a close evaluation of the extradition papers, he may hold that federal and statutory requirements, which are significantly jurisdictional, have not been met (31 Am Jur 2d 819). Similarly, under an extradition treaty, the executive authority of the requested state has the power to deny the behest from the requesting state. Accordingly, if after a careful examination of the extradition documents the Secretary of Foreign Affairs finds that the request fails to meet the requirements of the law and the treaty,

he shall not forward the request to the Department of Justice for the filing of the extradition petition since non-compliance with the aforesaid requirements will not vest our government with jurisdiction to effect the extradition.

In this light, it should be observed that the Department of Justice exerted notable efforts in assuring compliance with the requirements of the law and the treaty since it even informed the U.S. Government of certain problems in the extradition papers (such as those that are in Spanish and without the official English translation, and those that are not properly authenticated). In fact, petitioner even admits that consultation meetings are still supposed to take place between the lawyers in his Department and those from the U.S. Justice Department. With the meticulous nature of the evaluation, which cannot just be completed in an abbreviated period of time due to its intricacies, how then can we say that it is a proceeding that urgently necessitates immediate and prompt action where notice and hearing can be dispensed with?

Worthy of inquiry is the issue of whether or not there is tentativeness of administrative action. Is private respondent precluded from enjoying the right to notice and hearing at a later time without prejudice to him? Here lies the peculiarity and deviant characteristic of the evaluation procedure. On one hand there is yet no extraditee, but ironically on the other, it results in an administrative if adverse to the person involved, may cause his immediate incarceration. The grant of the request shall lead to the filing of the extradition petition in court. The "accused" (as Section 2[c] of Presidential Decree No. 1069 calls him), faces the threat of arrest, not only after the extradition petition is filed in court, but even during the evaluation proceeding itself by virtue of the provisional arrest allowed under the treaty and the implementing law. The prejudice to the "accused" is thus blatant and manifest.

Plainly, the notice and hearing requirements of administrative due process cannot be dispensed with and shelved aside.

Apart from the due process clause of the Constitution, private respondent likewise invokes Section 7 of Article III which reads:

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.

The above provision guarantees political rights which are available to citizens of the Philippines, namely: (1) the right to information on matters of public concern, and (2) the corollary right of access to official records documents. The general right guaranteed by said provision is the right to information on matters of public concern. In its implementation, the right of access to official records is likewise conferred. These cognate or related rights are "subject to limitations as may be provided by law" (Bernas, The 1987 Phil. Constitution A Reviewer-Primer, 1997 ed., p. 104) and rely on the premise that ultimately it is an informed and critical public opinion which alone can protect the values of democratic government (Ibid.).

Petitioner argues that the matters covered by private respondent's letter-request dated July 1, 1999 do not fall under the guarantee of the foregoing provision since the matters contained in the documents requested are not of public concern. On the other hand, private respondent argues that the distinction between matters vested with public interest and matters which are of purely private interest only becomes material when a third person, who is not directly affected by the matters requested, invokes the right to information. However, if the person invoking the right is the one directly affected thereby, his right to information becomes absolute.

The concept of matters of public concerns escapes exact definition. Strictly speaking, every act of a public officer in the conduct of the governmental process is a matter of public concern (Bernas, The 1987 Constitution of the Republic of the Philippines, 1996 ed., p. 336). This concept embraces a broad spectrum of subjects which the public may want to know, either because these directly affect their lives or simply because such matters arouse the interest of an ordinary citizen (Legaspi v. Civil Service Commission, 150 SCRA 530 [1987]). Hence, the real party in interest is the people and any citizen has "standing".

When the individual himself is involved in official government action because said action has a direct bearing on his life, and may either cause him some kind of deprivation or injury, he actually invokes the basic right to be notified under Section 1 of the Bill of Rights and not exactly the right to information on matters of public concern. As to an accused in a criminal proceeding, he invokes Section 14, particularly the right to be informed of the nature and cause of the accusation against him.

The right to information is implemented by the right of access to information within the control of the government (Bernas, The 1987 Constitution of the Republic of the Philippines, 1996 ed., p. 337). Such information may be contained in official records, and in documents and papers pertaining to official acts, transactions, or decisions.

In the case at bar, the papers requested by private respondent pertain to official government action from the U.S. Government. No official action from our country has yet been taken. Moreover, the papers have some relation to matters of foreign relations with the U.S. Government. Consequently, if a third party invokes this constitutional provision, stating that the extradition papers are matters of public concern since they may result in the extradition of a Filipino, we are afraid that the balance must be tilted, at such particular time, in favor of the interests necessary for the proper functioning of the government. During the evaluation procedure, no official governmental action of our own government has as yet been done; hence the invocation of the right is premature. Later, and in contrast, records of the extradition hearing would already fall under matters of public concern, because our government by then shall have already made an official decision to grant the extradition request. The extradition of a fellow Filipino would be forthcoming.

We now pass upon the final issue pertinent to the subject matter of the instant controversy: Would private respondent's entitlement to notice and hearing during the evaluation stage of the proceedings constitute a breach of the legal duties of the Philippine Government under the RP-Extradition Treaty? Assuming the answer is in the affirmative, is there really a conflict between the treaty and the due process clause in the Constitution?

First and foremost, let us categorically say that this is not the proper time to pass upon the constitutionality of the provisions of the RP-US Extradition Treaty nor the Extradition Law implementing the same. We limit ourselves only to the effect of the grant of the basic rights of notice and hearing to private respondent on foreign relations.

The rule of pacta sunt servanda, one of the oldest and most fundamental maxims of international law, requires the parties to a treaty to keep their agreement therein in good faith. The observance of our country's legal duties under a treaty is also compelled by Section 2, Article II of the Constitution which provides that "[t]he Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land, and adheres to the policy of peace, equality, justice, freedom, cooperation and amity with nations." Under the doctrine of incorporation, rules of international law form part of the law of the and land no further legislative action is needed to make such rules applicable in the domestic sphere (Salonga & Yap, Public International Law, 1992 ed., p. 12).

The doctrine of incorporation is applied whenever municipal tribunals (or local courts) are confronted with situations in which there appears to be a conflict between a rule of international law and the provisions of the constitution or statute of the local state. Efforts should first be exerted to harmonize them, so as to give effect to both since it is to be presumed that municipal law was enacted with proper regard for the generally accepted principles of international law in observance of the observance of the Incorporation Clause in the above-cited constitutional provision (Cruz, Philippine Political Law, 1996 ed., p. 55). In a situation, however, where the conflict is irreconcilable and a choice has to be made between a rule of international law and municipal law, jurisprudence dictates that municipal law should be upheld by the municipal courts (Ichong vs. Hernandez, 101 Phil. 1155 [1957]; Gonzales vs. Hechanova, 9 SCRA 230 [1963]; In re: Garcia, 2 SCRA 984 [1961]) for the reason that such courts are organs of municipal law and are accordingly bound by it in all circumstances (Salonga & Yap, op. cit., p. 13). The fact that international law has been made part of the law of the land does not pertain to or imply the primacy of international law over national or municipal law in the municipal sphere. The doctrine of incorporation, as applied in most countries, decrees that rules of international law are given equal standing with, but are not superior to, national legislative enactments. Accordingly, the principle lex posterior derogat priori takes effect — a treaty may repeal a statute and a statute may repeal a treaty. In states where the constitution is the highest law of the land, such as the Republic of the Philippines, both statutes and treaties may be invalidated if they are in conflict with the constitution (Ibid.).

In the case at bar, is there really a conflict between international law and municipal or national law? En contrario, these two components of the law of the land are not pined against each other. There is no occasion to choose which of the two should be upheld. Instead, we see a void in the provisions of the RP-US Extradition Treaty, as implemented by Presidential Decree No. 1069, as regards the basic due process rights of a prospective extraditee at the evaluation stage of extradition proceedings. From the procedures earlier abstracted, after the filing of the extradition petition and during the judicial determination of the propriety of extradition, the rights of notice and hearing are clearly granted to the prospective extraditee. However, prior thereto, the law is silent as to these rights. Reference to the U.S. extradition procedures also manifests this silence.

Petitioner interprets this silence as unavailability of these rights. Consequently, he describes the evaluation procedure as an "ex parte technical assessment" of the sufficiency of the extradition request and the supporting documents.

We disagree.

In the absence of a law or principle of law, we must apply the rules of fair play. An application of the basic twin due process rights of notice and hearing will not go against the treaty or the implementing law. Neither the Treaty nor the

Extradition Law precludes these rights from a prospective extraditee. Similarly, American jurisprudence and procedures on extradition pose no proscription. In fact, in interstate extradition proceedings as explained above, the prospective extraditee may even request for copies of the extradition documents from the governor of the asylum state, and if he does, his right to be supplied the same becomes a demandable right (35 C.J.S. 410).

Petitioner contends that the United States requested the Philippine Government to prevent unauthorized disclosure of confidential information. Hence, the secrecy surrounding the action of the Department of Justice Panel of Attorneys. The confidentiality argument is, however, overturned by petitioner's revelation that everything it refuses to make available at this stage would be obtainable during trial. The Department of Justice states that the U.S. District Court concerned has authorized the disclosure of certain grand jury information. If the information is truly confidential, the veil of secrecy cannot be lifted at any stage of the extradition proceedings. Not even during trial.

A libertarian approach is thus called for under the premises.

One will search in vain the RP-US Extradition Treaty, the Extradition Law, as well as American jurisprudence and procedures on extradition, for any prohibition against the conferment of the two basic due process rights of notice and hearing during the evaluation stage of the extradition proceedings. We have to consider similar situations in jurisprudence for an application by analogy.

Earlier, we stated that there are similarities between the evaluation process and a preliminary investigation since both procedures may result in the arrest of the respondent or the prospective extraditee. In the evaluation process, a provisional arrest is even allowed by the Treaty and the Extradition Law (Article 9, RP-US Extradition Treaty; Sec. 20, Presidential Decree No. 1069). Following petitioner's theory, because there is no provision of its availability, does this imply that for a period of time, the privilege of the writ of habeas corpus is suspended, despite Section 15, Article III of the Constitution which states that "[t]he privilege of the writ or habeas corpus shall not be suspended except in cases of invasion or rebellion when the public safety requires it"? Petitioner's theory would also infer that bail is not available during the arrest of the prospective extraditee when the extradition petition has already been filed in court since Presidential Decree No. 1069 does not provide therefor, notwithstanding Section 13, Article III of the Constitution which provides that "[a]ll persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. . ." Can petitioner validly argue that since these contraventions are by virtue of a treaty and hence affecting foreign relations, the aforestated guarantees in the Bill of Rights could thus be subservient thereto?

The basic principles of administrative law instruct us that "the essence of due process in administrative proceeding is an opportunity to explain one's side or an opportunity to seek reconsideration of the actions or ruling complained of (Mirano vs. NLRC, 270 SCRA 96 [1997]; Padilla vs. NLRC, 273 SCRA 457 [1997]; PLDT vs. NLRC, 276 SCRA 1 [1997]; Helpmate, Inc. vs. NLRC, 276 SCRA 315 [1997]; Aquinas School vs. Magnaye, 278 SCRA 602 [1997]; Jamer vs. NLRC, 278 SCRA 632 [1997]). In essence, procedural due process refers to the method or manner by which the law is enforced (Corona vs. United Harbor Pilots Association of the Phils., 283 SCRA 31 [1997]). This Court will not tolerate the least disregard of constitutional guarantees in the enforcement of a law or treaty. Petitioner's fears that the Requesting State may have valid objections to the Requested State's non-performance of its commitments under the Extradition Treaty are insubstantial and should not be given paramount consideration.

How then do we implement the RP-US Extradition Treaty? Do we limit ourselves to the four corners of Presidential Decree No. 1069?

Of analogous application are the rulings in Government Service Insurance System vs. Court of Appeals (201 SCRA 661 [1991]) and Go vs. National Police Commission (271 SCRA 447 [1997]) where we ruled that in summary proceedings under Presidential Decree No. 807 (Providing for the Organization of the Civil Service Commission in Accordance with Provisions of the Constitution, Prescribing its Powers and Functions and for Other Purposes), and Presidential Decree No. 971 (Providing Legal Assistance for Members of the Integrated National Police who may be charged for Service-Connected Offenses and Improving the Disciplinary System in the Integrated National Police, Appropriating Funds Therefor and for other purposes), as amended by Presidential Decree No. 1707, although summary dismissals may be effected without the necessity of a formal investigation, the minimum requirements of due process still operate. As held in GSIS vs. Court of Appeals:

. . . [I]t is clear to us that what the opening sentence of Section 40 is saying is that an employee may be removed or dismissed even without formal investigation, in certain instances. It is equally clear to us that an employee must be informed of the charges preferred against him, and that the normal way by which the employee is so informed

is by furnishing him with a copy of the charges against him. This is a basic procedural requirement that a statute cannot dispense with and still remain consistent with the constitutional provision on due process. The second minimum requirement is that the employee charged with some misfeasance or malfeasance must have a reasonable opportunity to present his side of the matter, that is to say, his defenses against the charges levelled against him and to present evidence in support of his defenses. . . .

(at p. 671)

Said summary dismissal proceedings are also non-litigious in nature, yet we upheld the due process rights of the respondent.

In the case at bar, private respondent does not only face a clear and present danger of loss of property or employment, but of liberty itself, which may eventually lead to his forcible banishment to a foreign land. The convergence of petitioner's favorable action on the extradition request and the deprivation of private respondent's liberty is easily comprehensible.

We have ruled time and again that this Court's equity jurisdiction, which is aptly described as "justice outside legality," may be availed of only in the absence of, and never against, statutory law or judicial pronouncements (Smith Bell & Co., Inc. vs. Court of Appeals, 267 SCRA 530 [1997]; David-Chan vs. Court of Appeals, 268 SCRA 677 [1997]). The constitutional issue in the case at bar does not even call for "justice outside legality," since private respondent's due process rights, although not guaranteed by statute or by treaty, are protected by constitutional guarantees. We would not be true to the organic law of the land if we choose strict construction over guarantees against the deprivation of liberty. That would not be in keeping with the principles of democracy on which our Constitution is premised.

Verily, as one traverses treacherous waters of conflicting and opposing currents of liberty and government authority, he must ever hold the oar of freedom in the stronger arm, lest an errant and wayward course be laid.

WHEREFORE, in view of the foregoing premises, the instant petition is hereby DISMISSED for lack of merit. Petitioner is ordered to furnish private respondent copies of the extradition request and its supporting papers, and to grant him a reasonable period within which to file his comment with supporting evidence. The incidents in Civil Case No. 99-94684 having been rendered moot and academic by this decision, the same is hereby ordered dismissed.

SO ORDERED.

Bellosillo, Purisima, Buena and De Leon, Jr., JJ., concur.Davide, Jr., C.J., I join Mr. Justice Puno in his dissent.Puno, J., please see dissent.Vitug, J., see separate opinion.Kapunan, J., see separate concurring opinion.Panganiban, J., please see my dissenting opinion.Mendoza, J., I join the dissents of Puno and Panganiban, JJ.Quisumbing, J., with concurring opinion.Pardo, J., I join J. Puno & J. Panganiban.Gonzaga-Reyes, J., I join the dissent of Justices Puno & Panganiban.Ynares-Santiago, J., please see separate concurring opinion.

Separate Opinions

VITUG, J., separate opinion;

The only real issue before the Court, I would take it, is whether or not private respondent can validly ask for copies of pertinent documents while the application for extradition against him is still undergoing process by the Executive Department.

There is, I agree with the majority, a right of access to such extradition documents conformably with the provisions of Article III, Section 7, of the Philippine Constitution.1 The constitutional right to free access to information of public concern is circumscribed only by the fact that the desired information is not among the species exempted by law from the operation of the constitutional guaranty and that the exercise of the right conforms with such reasonable conditions as may be prescribed by law.

There is no hornbook rule to determine whether or not an information is of public concern. The term "public concern" eludes exactitude, and it can easily embrace a broad spectrum of matters which the public may want to know either because the subject thereof can affect their lives or simply because it arouses concern.2

I am not convinced that there is something so viciously wrong with, as to deny, the request of private respondent to be furnished with copies of the extradition documents.

I add. The constitutional right to due process secures to everyone an opportunity to be heard, presupposing foreknowledge of what he may be up against, and to submit any evidence that he may wish to proffer in an effort to clear himself. This right is two-pronged — substantive and procedural due process — founded, in the first instance, on Constitutional or statutory provisions, and in the second instance, on accepted rules of procedure.3Substantive due process looks into the extrinsic and intrinsic validity of the law that figures to interfere with the right of a person to his life, liberty and property. Procedural due process — the more litigated of the two — focuses on the rules that are established in order to ensure meaningful adjudication in the enforcement and implementation of the law. Like "public concern," the term due process does not admit of any restrictive definition. Justice Frankfurter has viewed this flexible concept, aptly I believe, as being ". . . compounded by history, reason, the past course of decisions, and stout confidence in the democratic faith."4 The framers of our own Constitution, it would seem, have deliberately intended, to make it malleable to the ever-changing milieu of society. Hitherto, it is dynamic and resilient, adaptable to every situation calling for its application that makes it appropriate to accept an enlarged concept of the term as and when there is a possibility that the right of an individual to life, liberty and property might be diffused.5 Verily, whenever there is an imminent threat to the life, liberty or property of any person in any proceeding conducted by or under the auspices of the State, his right to due process of law, when demanded, must not be ignored.

A danger to the liberty of the extraditee, the private respondent, is real. Article 9 of the Extradition Treaty between the Government of the Republic of the Philippines and the Government of the United States of America provides that in case of urgency, a Contracting Party may request the provisional arrest of the person prior to the presentation of the request for extradition. I see implicit in this provision that even after the request for extradition is made and before a petition for extradition is filed with the courts, the possibility of an arrest being made on the basis of a mere evaluation by the Executive on the request for extradition by the foreign State cannot totally be discounted.

The conclusion reached by the majority, I hasten to add, does not mean that the Executive Department should be impeded in its evaluation of the extradition request. The right of the extraditee to be furnished, upon request, with a copy of the relevant documents and to file his comment thereon is not necessarily anathema to the proceedings duly mandated by the treaty to be made.

I vote to deny the petition.

KAPUNAN, J., separate concurring opinion;

I vote to dismiss the petition, both on technical and substantial grounds.

The petition in the case at bar raises one and only issue, which is the validity of the Temporary Restraining Order (TRO) issued by respondent Judge Ralph C. Lantion on August 9, 1999 in Civil Case No. 99-94684. The TRO directed respondents in said case to:

. . . maintain the status quo by refraining from committing the acts complained of; from conducting further proceedings in connection with the request of the United States Government for the extradition of the petitioner; from filing the corresponding Petition with the Regional Trial Court; and from performing any act directed to the extradition of the petitioner to the United States, for a period of twenty days from the service on respondents of this Order, pursuant to Section 5, Rule 58 of the 1997 Rules of Court.1 (Emphasis ours.)

The petition itself categorically states that "(t)he issue sought to be presented and litigated here is solely-the validity of the TRO."2

Notably, there is no allegation in the petition that respondent Judge is without jurisdiction to hear the case below or that he has exceeded his jurisdiction in hearing the same. Nor is there any other act, ruling, order, or decision, apart from the TRO already mentioned, of respondent Judge that is being challenged in the petition before us.

Since, as alleged in the petition, a copy of the TRO was served on respondents below on August 10, 1999, the TRO ceased to be effective on August 30, 1999; consequently, the instant petition has become moot and academic. This Court does not exercise jurisdiction over cases which are moot and academic or those not ripe for judicial consideration.3

Assuming that the present case has not become moot and academic, still, it should be dismissed for lack of merit.

The substantive issues raised in this case are: (a) whether a person whose extradition is sought by a foreign state has due process rights under Section 2, Article III of the 1997 Constitution before the Department of Justice as the request for extradition is being evaluated, or whether due process rights maybe invoked only upon the filing of a petition for extradition before a regional trial court; and (b) whether or not private respondent has a right of access to extradition documents under Section 7, Article III of the 1997 Constitution.

Petitioner contends that due process rights such as the right to be informed of the basis of the request for extradition and to have an opportunity to controvert are not provided in the extradition treaty or in P.D. 1069 and therefore does not exist in this stage of the proceedings. Further, he argues that the documents sought to be furnished to private respondent only involve private concerns, and not matters of public concern to which the people have a constitutional right to access.

While the evaluation process conducted by the Department of Justice is not exactly a preliminary investigation of criminal cases, it is akin to a preliminary investigation because it involves the basic constitutional rights of the person sought to be extradited. A person ordered extradited is arrested, forcibly taken from his house, separated from his family and delivered to a foreign state. His rights of abode, to privacy, liberty and pursuit of happiness are taken away from him — a fate as harsh and cruel as a conviction of a criminal offense. For this reason, he is entitled to have access to the evidence against him and the right to controvert them.

While the extradition treaty and P.D. 1069 do not provide for a preliminary investigation, neither does either prohibit it. The right to due process is a universal basic right which is deemed written into our laws and treaties with foreign countries.

Like a preliminary investigation, the evaluation by the Department of Justice of the extradition request and its accompanying documents is to establish probable cause and to secure the innocent against hasty, malicious and oppressive prosecution.

In this connection, it should be stressed that the evaluation procedure of the extradition request and its accompanying documents by the Department of Justice cannot be characterized as a mere "ex-parte technical assessment of the sufficiency" thereof. The function and responsibilities of the Department of Justice in evaluating the extradition papers involve the exercise of judgment. They involve a determination whether the request for extradition conforms fully to the requirements of the extradition treaty and whether the offense is extraditable. These include, among others, whether the offense for which extradition is requested is a political or military offense (Article 3); whether the documents and other informations required under Article 7(2) have been provided (Article 7); and whether the extraditable offense is punishable under the laws of both contracting parties by deprivation of liberty for a period of more than one year (Article 2). Consequently, to arrive at a correct judgment, the parties involved are entitled to be heard if the requirements of due process and equal protection are to be observed.

With respect to petitioner's claim that private respondent has no right to demand access to the documents relating to the request for extradition, suffice it to say, that any document used in a proceeding that would jeopardize a person's constitutional rights is matter of public concern. As Martin Luther King said, "injustice anywhere is a threat to justice everywhere," so any violation of one's rights guaranteed by the Bill of Rights is everybody's concern because they, one way or another, directly or indirectly, affect the rights of life and liberty of all the citizens as a whole.

Due process rights in a preliminary investigation is now an established principle. The respondent has a right of access to all of the evidence. He has the right to submit controverting evidence. The prosecuting official who conducts the preliminary investigation is required to be neutral, objective, and impartial in resolving the issue of probable cause. I see no reason why the same rights may not be accorded a person sought to be extradited at the stage where the Department of Justice evaluates whether a petition for extradition would be filed before a regional trial court. If denied such rights, not only denial of due process rights but of equal protection may be raised.

It is suggested that after a petition for extradition is filed with a regional trial court, the person sought to be extradited may exercise all due process rights. He may then have access to all the records on the basis of which the request for extradition has been made. He may controvert that evidence and raise all defenses he may consider appropriate. That, it is urged, meets the due process requirement.

But why must he wait until the petition for extradition is filed? As succinctly expressed, if the right to notice and hearing is to serve its full purpose, then, it is clear that it must be granted at a time when the deprivation can still be prevented. 4 Like the filing of an information in a criminal case, the mere filing of a petition for extradition causes immediate impairment of the liberty of the person sought to be extradited and a substantial curtailment of other rights. His arrest may be immediately ordered by the regional trial court. He would be compelled to face an open and public trial. He will be constrained to seek the assistance of counsel and incur other expenses of litigation. The public eye would be directed at him with all the concomitant intrusions to his right to privacy. Where the liberty of a person is at risk, and extradition strikes at the very core of liberty, invocation of due process rights can never be too early.

QUISUMBING, J., concurring opinion;

As I concur in the result reached by the ponencia of Justice Melo, may I just add my modest observations.

The human rights of person, whether citizen or alien, and the rights of the accused guaranteed in our Constitution should take precedence over treaty rights claimed by a contracting state. Stated otherwise, the constitutionally mandated duties of our government to the individual deserve preferential consideration when they collide with its treaty obligations to the government of another state. This is so although we recognize treaties as a source of binding obligations under generally accepted principles of international law incorporated in our Constitution as part of the law of the land.

For this primordial reason, I vote to DENY the petition.

Moreover, considering that the Extradition Treaty between the USA and Philippines appears mute on the specific issue before us, the Court — in the exercise of its judicial power to find and state what the law is — has this rare opportunity of setting a precedent that enhances respect for human rights and strengthens due process of law.

As both majority and dissenting colleagues in the Court will recognize, American authorities follow two tracks in extradition proceedings: (1) the interstate practice where, pursuant to statute, the state Executive upon demand furnishes the would be extraditee or counsel copies of pertinent documents as well as the request for extradition; and (2) the international practice where the Executive department need not initially grant notice and hearing at all. Rules of reciprocity and comity, however, should not bar us from applying internationally now what appears the more reasonable and humane procedure, that is, the interstate practice among Americans themselves. For in this case the American people should be among the most interested parties.

Truly, what private respondent is asking our Executive department (notice, copies of documents, and the opportunity to protect himself at the earliest time against probable peril) does not, in my view, violate our Extradition Treaty with the USA. His request if granted augurs well for transparency in interstate or intergovernmental relations rather than secrecy which smacks of medieval diplomacy and the inquisition discredited long ago.

That private respondent is a Filipino citizen is not decisive of the issue here, although it is obviously pertinent. Even if he were a resident alien (other than American perhaps), he is, in my view, entitled to our full protection against the hazards of extradition (or deportation, similarly) from the very start. More so because, looking at the facts adduced at the hearing and on the record of this case, the charges against him involve or are co-mingled with, if not rooted in, certain offenses of a political nature or motivation such as the ones involving alleged financial contributions to a major American political party. If so, long established is the principle that extradition could not be utilized for political offenses or politically motivated charges.

There may, of course, be other charges against private respondent in the USA. But then they are, in my view, already tainted there with political color due to the highly charged partisan campaign atmosphere now prevailing. That private respondent's cases will be exploited as political fodder there is not far-fetched, hence the need here for cautious but comprehensive deliberation on the matter at bar. For, above all, it is not only a Treaty provision we are construing; it is about constitutional and human rights we are most concerned.

YNARES-SANTIAGO, J., concurring opinion;

I concur in the ponencia of Mr. Justice Jose A.R. Melo with its conceptive analysis of a citizen's right to be given what is due to him. I join in his exposition of this Court's constitutional duty to strike the correct balance between overwhelming Government power and the protection of individual rights where only one person is involved.

However, I am constrained to write this short concurrence if only to pose the question of why there should be any debate at all on a plea for protection of one's liberty which, if granted, will not result in any meaningful impediment of thwarting any state policy and objectives.

I see no reason why respondent Mark Jimenez, or other citizens not as controversial or talked about, should first be exposed to the indignity, expense, and anxiety of a public denunciation in court before he may be informed of what the contracting states in an extradition treaty have against him. There is no question that everything which respondent Jimenez now requests will be given to him during trial. Mr. Jimenez is only petitioning that, at this stage, he should be informed why he may be deported from his own country.

I see no ill effects which would arise if the extradition request and supporting documents are shown to him now, instead of later.

Petitioner Secretary of Justice states that his action on the extradition request and its supporting documents will merely determine whether or not the Philippines is complying with its treaty obligations. He adds that, therefore, the constitutional rights of an accused in all criminal prosecutions are not available to the private respondent.

The July 13, 1999 reply-letter from petitioner states the reasons why he is denying respondent Jimenez's requests. In short, the reasons are:

1. In evaluating the documents, the Department merely determines whether the procedures and requirements under the relevant law and treaty have been complied with by the Requesting Government. The constitutional rights of the accused in all criminal prosecutions are, therefore, not available.

2. The United States Government has requested the Philippine Government to prevent unauthorized disclosure of certain grand jury information.

3. The petitioner cannot hold in abeyance proceedings in connection with an extradition request. For extradition to be an effective tool of criminal law enforcement, requests for surrender of accused or convicted persons must be processed expeditiously.

I respectfully submit that any apprehensions in the Court arising from a denial of the petition — "breach of an international obligation, rupture of states relations, forfeiture of confidence, national embarrassment, and a plethora of other equally undesirable consequences" — are more illusory than real. Our country is not denying the extradition of a person who must be extradited. Not one provision of the extradition treaty is violated. I cannot imagine the United States taking issue over what, to it, would be a minor concession, perhaps a slight delay, accorded in the name of human rights. On the other hand, the issue is fundamental in the Philippines. A citizen is invoking the protection, in the context of a treaty obligation, of rights expressly guaranteed by the Philippine Constitution.

Until proved to be a valid subject for extradition, a person is presumed innocent or not covered by the sanctions of either criminal law or international treaty. At any stage where a still prospective extraditee only seeks to know so that he can prepare and prove that he should not be extradited, there should be no conflict over the extension to him of constitutional protections guaranteed to aliens and citizens alike.

Petitioner cites as a reason for the denial of respondent's requests, Article 7 of the Treaty. Article 7 enumerates the required documents and establishes the procedures under which the documents shall be submitted and admitted as evidence. There is no specific provision on how that Secretary of Foreign Affairs should conduct his evaluation. The Secretary of Justice is not even in the picture at this stage. Under petitioner's theory, silence in the treaty over a citizen's rights during the evaluation stage is interpreted as deliberate exclusion by the contracting states of the right to know. Silence is interpreted as the exclusion of the right to a preliminary examination or preliminary investigation provided by the laws of either one of the two states.

The right to be informed of charges which may lead to court proceedings and result in a deprivation of liberty is ordinarily routine. It is readily available to one against whom the state's coercive power has already been focused. I fail to see how silence can be interpreted as exclusion. The treaty is silent because at this stage, the preliminary procedure is still an internal matter. And when a law or treaty is silent, it means a right or privilege may be granted. It is not the other way around.

The second reason alleging the need for secrecy and confidentiality is even less convincing. The explanation of petitioner is self-contradictory. On one hand, petitioner asserts that the United States Government requested the Philippine

Government to prevent unauthorized disclosure of certain information. On the other hand, petitioner declares that the United States has already secured orders from concerned District Courts authorizing the disclosure of the same grand jury information to the Philippine Government and its law enforcement personnel.

Official permission has been given. The United States has no cause to complain about the disclosure of information furnished to the Philippines.

Moreover, how can grand jury information and documents be considered confidential if they are going to be introduced as evidence in adversely proceedings before a trial court? The only issue is whether or not Mr. Jimenez should be extradited. His innocence or guilt of any crime will be determined in an American court. It is there where prosecution strategies will be essential. If the Contracting States believed in a total non-divulging of information prior to court hearings, they would have so provided in the extradition treaty. A positive provision making certain rights unavailable cannot be implied from silence.

I cannot believe that the United States and the Philippines with identical constitutional provisions on due process and basic rights should sustain such a myopic view in a situation where the grant of a right would not result in any serious setbacks to criminal law enforcement.

It is obvious that any prospective extraditee wants to know if his identity as the person indicated has been established. Considering the penchant of Asians to adopt American names when in America, the issue of whether or not the prospective extraditee truly is the person charged in the United States becomes a valid question. It is not only identity of the person which is involved. The crimes must also be unmistakably identified and their essential elements clearly stated.

There are other preliminary matters in which respondent is interested. I see nothing in our laws or in the Treaty which prohibits the prospective extraditee from knowing until after the start of trial whether or not the extradition treaty applies to him.

Paraphrasing Hasmin vs. Boncan, 71 Phil. 216; Trocio vs. Manta, 118 SCRA 241 (1941); and Salonga vs. Hon. Paño, 134 SCRA 438 (1985), the purpose of a preliminary evaluation is to secure an innocent person against hasty, faulty and, therefore, oppressive proceedings; to protect him from an open and extensively publicized accusation of crimes; to spare him the trouble, expense, and anxiety of a public trial; and also to protect the state from useless and expensive trails. Even if the purpose is only to determine whether or not the respondent is a proper subject for extradition, he is nonetheless entitled to the guarantees of fairness and freedom accorded to those charged with ordinary crimes in the Philippines.

The third reason given by petitioner is the avoidance of delay. Petitioner views the request to be informed as part of undesirable delaying tactics. This is most unfortunate. Any request for extradition must be viewed objectively and impartially without any predisposition to granting it and, therefore, hastening the extradition process.

In the first place, any assistance which the evaluating official may get from the participation of respondent may well point out deficiencies and insufficiencies in the extradition documents. It would incur greater delays if these are discovered only during court trial. On the other hand, if, from respondent's participation, the evaluating official discovers a case of mistaken identity, insufficient pleadings, inadequate complaints, or any ruinous shortcoming, there would be no delays during trial. An unnecessary trial with all its complications would be avoided.

The right to be informed is related to the constitutional right to a speedy trial. The constitutional guarantee extends to the speedy disposition of cases before all quasi-judicial and administrative bodies (Constitution, Art. III, Sec. 16). Speedy disposition, however, does not mean the deliberate exclusion of the defendant or respondent from the proceedings. As this Court rules in Acebedo vs. Sarmiento, 36 SCRA 247 (1970), "the right to a speedy trial, means one free from vexatious, capricious and oppressive delays, its salutary objective being to assure that an innocent person may be free from the anxiety and expense of a court litigation or, if otherwise, of having his guilt (in this case, his being extradited) determined within the shortest possible time compatible with the presentation and consideration of whatsoever legitimate defense he may interpose."

The right to be informed and the right to a preliminary hearing are not merely for respondent. They also serve the interests of the State.1âwphi1.nêt

In closing, I maintain that the paramount consideration of guaranteeing the constitutional rights of individual respondent override the concerns of petitioner. There should be no hurried or indifferent effort to routinely comply with all requests for extradition. I understand that this is truer in the United States than in other countries. Proposed extraditees are given

every legal protection available from the American justice system before they are extradited. We serve under a government of limited powers and inalienable rights. Hence, this concurrence.

PUNO, J., dissenting opinion;

If the case at bar was strictly a criminal case which involves alone the right of an accused to due process, I would have co-signed the ponencia of our esteemed colleague, Mr. Justice Jose A.R. Melo, without taking half a pause.But the case at bar does not involve the guilt or innocence of an accused but the interpretation of an extradition treaty where at stake is our government's international obligation to surrender to a foreign state a citizen of its own so he can be tried for an alleged offense committed within that jurisdiction. The issues are of first impression and the majority opinion dangerously takes us to unknown shoals in constitutional and international laws, hence this dissenting opinion.

Extradition is a well-defined concept and is more a problem in international law. It is the "process by which persons charged with or convicted of crime against the law of a State and found in a foreign State are returned by the latter to the former for trial or punishment. It applies to those who are merely charged with an offense but have not been brought to trial; to those who have been tried and convicted and have subsequently escaped from custody; and those who have been convicted in absentia. It does not apply to persons merely suspected of having committed an offense but against who no charge has been laid or to a person whose presence is desired as a witness or for obtaining or enforcing a civil judgment."1 The definition covers the private respondent who is charged with two (2) counts of conspiracy to commit offense or to defraud the United States, four (4) counts of attempt to evade or defeat tax, two (2) counts of fraud by wire, radio or television, six (6) counts of false statements or entries and thirty-three (33) counts of election contributions in the name of another. There is an outstanding warrant of arrest against the private respondent issued by the US District Court, Southern District of Florida.

A brief review of the history of extradition law will illumine our labor. Possibly the most authoritative commentator on extradition today, M. Cherif Bassiouni, divides the history of extradition into four (4) periods: "(1) ancient times to seventeenth century — a period revealing almost exclusive concern for political and religious offenders; (2) the eighteenth century and half of the nineteenth century — a period of treaty-making chiefly concerned with military offenders characterizing the condition of Europe during that period; (3) from 1833 to 1948 — a period of collective concern in suppressing common criminality; and (4) post-1948 developments which ushered in a greater concern for protecting the human rights of persons and revealed an awareness of the need to have international due process of law regulate international relations."2

It is also rewarding to have a good grip on the changing slopes in the landscape of extradition during these different periods. Extradition was first practiced by the Egyptians, Chinese, Chaldeans and Assyro-Babylonians but their basis for allowing extradition was unclear. Sometimes, it was granted due to pacts; at other times, due to plain good will.3 The classical commentators on international law thus focused their early views on the nature of the duty to surrender an extraditee — whether the duty is legal or moral in character. Grotius and de Vattel led the school of thought that international law imposed a legal duty called civitas maxima to extradite criminals.4 In sharp contrast, Puffendorf and Billot led the school of thought that the so-called duty was but an "imperfect obligation which could become enforceable only by a contract or agreement between states.5

Modern nations tilted towards the view of Puffendorf and Billot that under international law there is no duty to extradite in the absence of treaty, whether bilateral or multilateral. Thus, the US Supreme Court in US v.Rauscher,6 held: ". . . . it is only in modern times that the nations of the earth have imposed upon themselves the obligation of delivering up these fugitives from justice to the states where their crimes were committed, for trial and punishment. This has been done generally by treaties . . . Prior to these treaties, and apart from them there was no well-defined obligation on one country to deliver up such fugitives to another; and though such delivery was often made it was upon the principle of comity . . ."

Then came the long and still ongoing debate on what should be the subject of international law. The 20th century saw the dramatic rise and fall of different types and hues of authoritarianism — the fascism of Italy's Mussolini and Germany's Hitler, the militarism of Japan's Hirohito and the communism of Russia's Stalin, etc. The sinking of these isms led to the elevation of the rights of the individual against the state. Indeed, some species of human rights have already been accorded universal recognition.7 Today, the drive to internationalize rights of women and children is also on high gear.8 The higher rating given to human rights in the hierarchy of values necessarily led to the re-examination of rightful place of the individual in international law. Given the harshest eye is the moss-covered doctrine that international law deals only with States and that individuals are not its subject. For its undesirable corrally is the sub-doctrine that an individual's right in international law is a near cipher. Translated in extradition law, the view that once commanded a consensus is that since a fugitive is a mere object and not a subject of international law, he is bereft of rights. An extraditee, so it was held, is a mere "object transported from one state to the other as an exercise of the sovereign will of the two states involved."9 The re-examination consigned this pernicious doctrine to the museum of ideas.10 The new

thinkers of international law then gave a significant shape to the role and rights of the individual in state-concluded treaties and other international agreements. So it was declared by then US Ambassador Philip C. Jessup in audible italics: "A very large part of international affairs and, thus, of the process of international accommodation, concerns the relations between legal persons known as states. This is necessarily so. But it is no longer novel for the particular interest of the human being to break through the mass of interstate relationship."11 The clarion call to re-engineer a new world order whose dominant interest would transcend the parochial confines of national states was not unheeded. Among the world class scholars who joined the search for the elusive ideological underpinnings of a new world order were Yale Professor Myres McDougal and Mr. Justice Florentino Feliciano. In their seminal work. Law and Minimum World Public Order, they suggested that the object of the new world should be "to obtain in particular situations and in the aggregate flow of situations the outcome of a higher degree of conformity with the security goals of preservation, deterrence, restoration, rehabilitation and reconstruction of all societies comprising the world community."12 Needless to stress, all these prescient theses accelerated the move to recognize certain rights of the individual in international law.

We have yet to see the final and irrevocable place of individual rights, especially the rights of an extraditee, in the realm of international law. In careful language, Bassiouni observes that today, "institutionalized conflicts between states are still rationalized in terms of sovereignty, national interest, and national security, while human interests continue to have limited, though growing impact on the decision-making processes which translate national values and goals into specific national and international policy."13

I belabor the international law aspect of extradition as the majority opinion hardly gives it a sideglance. It is my humble submission that the first consideration that should guide us in the case at bar is that a bilateral treaty — the RP-US Extradition Treaty — is the subject matter of the litigation. In our constitutional scheme, the making of a treaty belongs to the executive and legislative departments of our government. Between these two departments, the executive has a greater say in the making of a treaty. Under Section 21, Article VII of our Constitution, the President has the sole power to negotiate treaties and international agreements although to be effective, they must be concurred in by at least two thirds of all the members of the Senate. Section 20 of the same Article empowers the President to contract or guarantee foreign loans with the prior concurrence of the Monetary Board. Section 16 of the same Article gives the President the power to appoint ambassadors, other public ministers and consuls subject to confirmation by the Commission on Appointments. In addition, the President has the power to deport undesirable aliens. The concentration of these powers in the person of the President is not without a compelling consideration. The conduct of foreign relations is full of complexities and consequences, sometimes with life and death significance to the nation especially in times of war. It can only be entrusted to that department of government which can act on the basis of the best available information and can decide with decisiveness. Beyond debate, the President is the single most powerful official in our land for Section 1 of Article VII provides that "the executive power shall be vested in the President of the Philippines," whereas Section 1 of Article VI states that "the legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives . . . except to the extent reserved to the people by the provision on initiative and referendum," while Section 1 of Article VIII provides that "judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law." Thus, we can see that executive power is vested in the President alone whereas legislative and judicial powers are shared and scattered. It is also the President who possesses the most comprehensive and the most confidential information about foreign countries for our diplomatic and consular officials regularly brief him on meaningful events all over the world. He has also unlimited access to ultra-sensitive military intelligence data.14 In fine, the presidential role in foreign affairs is dominant and the President is traditionally accorded a wider degree of discretion in the conduct of foreign affairs. The regularity, nay, validity of his actions are adjudged under less stringent standards, lest their judicial repudiation lead to breach of an international obligation, rupture of state relations, forfeiture of confidence, national embarrassment and a plethora of other problems with equally undesirable consequences.

These are some of the dominant policy considerations in international law that the Court must balance against the claim of the private respondent that he has a right to be given the extradition documents against him and to comment thereon even while they are still at the evaluation stage by the petitioner Secretary of Justice, an alter ego of the President. The delicate questions of what constitutional rights and to what degree they can be claimed by an extraditee do not admit of easy answers and have resulted in discrete approaches the world over.15 On one end of the pole is the more liberal European approach. The European Court of Human Rights embraces the view that an extraditee is entitled to the benefit of all relevant provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms. It has held that ". . . in so far as a measure of the extradition has consequences adversely affecting the enjoyment of a convention right, it may, assuming that the consequences are not too remote, attract the obligations of a Contracting State under the relevant convention guarantee."16 At the other end of the pole is the more cautious approach of the various Courts of Appeal in the United States. These courts have been more conservative in light of the principle of separation of powers and their faith in the presumptive validity of executive decisions. By and large, they adhere to the rule of non-inquiryunder which the extraditing court refuses to examine the requesting country's criminal justice system or consider allegations that the extraditee will be mistreated or denied a fair trial in that country.17

The case at bar, I respectfully submit, does not involve an irreconcilable conflict between the RP-US Extradition Treaty and our Constitution where we have to choose one over the other. Rather, it calls for a harmonizationbetween said treaty and our Constitution. To achieve this desirable objective, the Court should consider whether the constitutional rights invoked by the private respondent have truly been violated and even assuming so,whether he will be denied fundamental fairness. It is only when their violation will destroy the respondent's right to fundamental fairness that his constitutional claims should be given primacy.

Given this balancing approach, it is my humble submission that considering all the facts and facets of the case,the private respondent has not proved entitlement to the right he is claiming. The majority holds that the Constitution, the RP-US extradition and P.D. No. 1069 do not prohibit respondent's claims, hence, it should be allowed. This is too simplistic an approach. Rights do not necessarily arise from a vacuum. Silence of the law can even mean an implied denial of a right. Also, constitutional litigations do not always involve a clear cut choice between right and wrong. Sometimes, they involve a difficult choice between right against right. In these situations, there is need to balance the contending rights and primacy is given to the right that will serve the interest of the nation at that particular time. In such instances, the  less compelling right is subjected to soft restraint but without smothering its essence. Proceeding from this premise of relativism of rights, I venture the view that even assuming arguendo respondent's weak claim, still, the degree of denial of private respondent's rights to due process and to information is too slight to warrant the interposition of judicial power . As admitted in the ponencia itself, an extradition proceeding is sui generis. It is, thus, futile to determine what it is. What is certainis that it is not a criminal proceeding where there is an accused who claim the entire array of rights guaranteed by the Bill of Rights. Let it be stressed that in an extradition proceeding, there is no accused and the guilt or innocence of the extraditee will not be passed upon by our executive officials nor by the extradition judge. Hence, constitutional rights that are only relevant do determine the guilt or innocence of an accused cannot be invoked by an extraditee. Indeed, an extradition proceeding is summary in nature which is untrue of criminal proceedings.18Even the rules of evidence are different in an extradition proceeding. Admission of evidence is less stringent, again because the guilt of the extraditee is not under litigation.19 It is not only the quality but even the quantum of evidence in extradition proceeding is different. In a criminal case, an accused can only be convicted by proof beyond reasonable doubt.20 In an extradition proceeding, an extraditee can be ordered extradited "upon showing of the existed of a prima facie case."21 If more need be said, the nature of an extradition decision is different from a judicial decision whose finality cannot be changed by executive fiat. Our courts22 may hold an individual extraditable but the ultimate decision to extradite the individual lies in the hands of the Executive. Section 3, Article 3 of the RP-US Extradition Treaty specifically provides that "extradition shall not be granted if the executive authority of the Requested State determined that the request was politically motivated, or that the offense is a military offense which is not punishable under non-military penal legislation." In the United States, the Secretary of State exercises this ultimate power and is conceded considerable discretion. He balances the equities of the case and the demands of the nation's foreign relations.23 In sum, he is not straitjacketed by strict legal considerations like an ordinary court.

The type of issue litigated in extradition proceedings which does not touch on the guilt or innocence of the extraditee, the limited nature of the extradition proceeding, the availability of adequate remedies in favor of the extraditee, and the traditional leeway given to the Executive in the conduct of foreign affairs have compelled courts to put a high threshold before considering claims of individuals that enforcement of an extradition treaty will violate their constitutional rights. Exemplifying such approach is the Supreme Court of Canada which has adopted a highly deferential standard that emphasizes international comity and the executive's experience in international matters.24 It continues to deny Canada's charter protection to extraditees unless the violation can be considered shocking to the conscience.

In the case, at bar and with due respect, the ponencia inflates with too much significance the threat to liberty of the private respondent to prop us its thesis that his constitutional rights to due process and access to information must immediately be vindicated. Allegedly, respondent Jimenez stands in danger of provisional arrest, hence, the need for him to be immediately furnished copies of documents accompanying the request for his extradition.Respondent's fear of provisional arrest is not real. It is a self-imagined fear for the realities on the ground show that the United States authorities have not manifested any desire to request for his arrest. On the contrary, they filed the extradition request through the regular channel and, even with the pendency of the case at bar, they have not moved for respondent's arrest on the ground of probable delay in the proceedings. To be sure, the issue of whether respondent Jimenez will be provisionally arrested is now moot. Under Section 1 of Article 9 of the RP-US Extradition Treaty, in relation to Section 20(a) of PD No. 1069, the general principle is enunciated that a request for provisional arrest must be made pending receipt of the request for extradition. By filing the request for extradition, the US authorities have implicitly decided not to move for respondent's provisional arrest. But more important, a request for respondent's arrest does not mean he will be the victim of an arbitrary arrest. He will be given due process before he can be arrested. Article 9 of the treaty provides:

PROVISIONAL ARREST

1. In case of urgency, a Contracting Party may request the provisional arrest of the person sought pending presentation of the request for extradition. A request for provisional arrest may be transmitted through the diplomatic channel or directly between the Philippine Department of Justice and the United States Department of Justice.

2. The application for provisional arrest shall contain:

a) a description of the person sought;

b) the location of the person sought, if known;

c) a brief statements of the facts of the case, including, if possible, the time and location of the offense;

d) a description of the laws violated;

e) a statement of the existence of a warrant of a warrant of arrest or finding of guilt or judgment of conviction against the person sought; and

f) a statement that a request for extradition for the person sought will follow.

3. The Requesting State shall be notified without delay of the disposition of its application and the reasons for any denial.

4. A person who is provisionally arrested may be discharged from custody upon the expiration of sixty (60) days from the date of arrest pursuant to this Treaty if the executive authority of the Requested State has not received the formal request for extradition and the supporting documents required in Article 7.

In relation to the above, Section 20 of P.D. No. 1069 provides:

Sec. 20. Provisional Arrest. — (a) In case of urgency, the requesting state may, pursuant to the relevant treaty or convention and while the same remains in force, request for the provisional arrest of the accused, pending receipt of the request for extradition made in accordance with Section 4 of this Decree.

(b) A request for provisional arrest shall be sent to the Director of the National Bureau of Investigation, Manila, either through the diplomatic channels or direct by post or telegraph.

(c) The Director of the National Bureau of Investigation or any official acting on his behalf shall upon receipt of the request immediately secure a warrant for the provisional arrest of the accused from the presiding judge of the Court of First Instance of the province or city having jurisdiction of the place, who shall issue the warrant for the provisional arrest of the accused. The Director of the National Bureau of Investigation through the Secretary of Foreign Affairs shall inform the requesting state of the result of its request.

(d) If within a period of 20 days after the provisional arrest, the Secretary of Foreign Affairs has not received the request for extradition and the documents mentioned in Section 4 of this Decree, the accused shall be released from custody.

The due process protection of the private-respondent against arbitrary arrest is written in cyrillic letters in these two (2) related provisions. It is self-evident under these provisions that a request for provisional arrest does not mean it will be granted ipso facto. The request must comply with certain requirements. It must be based on an "urgent" factor. This is subject to verification and evaluation by our executive authorities. The request can be denied if not based on a real exigency of if the supporting documents are insufficient. The protection of the respondent against arbitrary provisional arrest does not stop on the administrative level. For even if the Director of the National Bureau of Investigation agrees with the request for the provisional arrest of the respondent, still he has to apply for a judicial warrant from the "presiding judge of the Court of First Instance (now RTC) of the province of city having jurisdiction of the place. . . . ." It is a judge who will issue a warrant for the provisional arrest of the respondent. The judge has comply with Section 2, Article III of the Constitution which provides that "no . . . warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the . . . persons or things to be seized." The message that leaps to the eye is that compliance with this requirements precludes any arbitrary arrest.

In light of all these considerations, I respectfully submit that denying respondent's constitutional claim to be furnished all documents relating to the request for his extradition by the US authorities during their evaluation stage will not subvert his right to fundamental fairness. It should be stressed that this is not a case where the respondent will not be given an opportunity to know the basis of the request for his extradition. In truth, and contrary to the impression of the majority, P.D. No. 1069 fixes the specific time when he will be given the papers constituting the basis for his extradition. The time is when he is summoned by the extradition court and required to answer the petition for extradition. Thus, Section 6 of P.D. No. 1069 provides:

Sec. 6. Issuance of Summons; Temporary Arrest; Hearing, Service of Notices. — (1) Immediately upon receipt of the petition, the presiding judge of the court shall, as soon as practicable, summon the accused to appear and to answer the petition on the day and hour fixed in the order. He may issue a warrant for the immediate arrest of the accused which may be served anywhere within the Philippines if it appears to the presiding judge that the immediate arrest and temporary detention of the accused will best serve the ends of justice. Upon receipt of the answer within the time fixed, the presiding judge shall hear the case or set another date for the hearing thereof.

(2) The order and notice as well as a copy of the warrant of arrest, if issued, shall be promptly served each upon the accused and the attorney having charge of the case.

Upon receipt of the summons and the petition, respondent is free to foist all defense available to him. Such an opportunity does not deny him fairness which is the essence of due process of law.

Thus, with due respect, I submit that the ponencia failed to accord due importance to the international law aspect of an extradition treaty as it unduly stressed its constitutional law dimension. This goes against the familiar learning that in balancing the clashing interests involved in extradition treaty, national interest is more equal than the others. While lately, humanitarian considerations are being factored in the equation, still the concept of extradition as a national act is the guiding idea. Requesting and granting extradition remains a power and prerogative of the national government of a State. The process still involves relations between international personalities.25 Needless to state, a more deferential treatment should be given to national interest than to individual interest. Our national interest in extraditing persons who have committed crimes in a foreign country are succinctly expressed in the whereas clauses of P.D. No. 1069, viz:

WHEREAS, the Constitution of the Philippines adopts the generally accepted principles of international law as part of law of the land, and adheres to the policy of peace, equality, justice, freedom, cooperation and amity with all nations;

WHEREAS, the suppression of crime is the concern not only of the state where it is committed but also of any other state to which the criminal may have escaped, because it saps the foundation of social life and is an outrage upon humanity at large, and it is in the interest of civilized communities that crimes should not go unpunished. . . . .

The increasing incidence of international and transnational crimes, the development of new technologies of death,and the speed and scale of improvement of communication are factors which have virtually annihilated time and distance . They make more compelling the vindication of national interest to insure that the punishment of criminals should not be frustrated by the frontiers of territorial sovereignty. This overriding national interest must be upheld as against respondent's weak constitutional claims which in no way amount to denial of fundamental fairness.

At bottom, this case involves the respect that courts should accord to the Executive that concluded the RP-US Extradition Treaty in the conduct of our foreign affairs. As early as 1800, the legendary John Marshall, then a congressman, has opined that the power to extradite pursuant to a treaty rests in the executive branch as part of its power to conduct foreign affairs.26 Courts have validated this forward-looking opinion in a catena of unbroken cases. They defer to the judgment of the Executive on the necessities of our foreign affairs and on its view of the requirements of international comity. The deferential attitude is dictated by the robust reality that of the three great branches of our government, it is the Executive that is most qualified to guide the ship of the state on the known and unknown continents of foreign relations. It is also compelled by considerations of the principle ofseparation of powers for the Constitution has clearly allocated the power to conduct our foreign affairs to the Executive. I respectfully submit that the majority decision has weakened the Executive by allowing nothing less than an unconstitutional headbutt on the power of the Executive to conduct our foreign affairs. The majority should be cautions in involving this Court in the conduct of the nation's foreign relations where the inviolable rule dictated by necessity is that the nation should speak with one voice . We should not overlook the reality that courts by their nature, are ill-equipped to fully comprehend the foreign policy dimension of a treaty, some of which are hidden in shadows and silhouettes.

I vote to grant the petition.

PANGANIBAN, J., dissenting opinion;

With due respect, I dissent.

The main issue before us is whether Private Respondent Mark B. Jimenez is entitled to the due process rights of notice and hearing during the preliminary or evaluation stage of the extradition proceeding against him.

Two Staged in Extradition

There are essentially two stages in extradition proceedings: (1) the preliminary or evaluation stage, whereby the executive authority of the requested state ascertains whether the extradition request is supported by the documents and information required under the Extradition Treaty; and (2) the extradition hearing, whereby the petition for extradition is heard before a court of justice, which determines whether the accused should be extradited.

The instant petition refers only to the first stage. Private respondent claims that he has a right to be notified and to be heard at this early stage. However, even the ponencia admits that neither the RP-US Extradition Treaty nor PD 1069 (the Philippine Extradition Law) expressly requires the Philippine government, upon receipt of the request for extradition, to give copies thereof and its supporting documents to the prospective extraditee, much less to give him an opportunity to be heard prior to the filing of the petition in court.

Notably, international extradition proceedings in the United States do not include the grant by the executive authority of notice and hearing to the prospective extraditee at this initial stage. It is the judge or magistrate who is authorized to issue a warrant of arrest and to hold a hearing to consider the evidence submitted in support of the extradition request. In contrast, in interstate rendition, the governor must, upon demand, furnish the fugitive or his attorney copies of the request and its accompanying documents, pursuant to statutory provisions.1 In the Philippines, there is no similar statutory provision.

Evaluation Stage Essentially Ministerial

The evaluation stage simply involves the ascertainment by the foreign affairs secretary of whether the extradition request is accompanied by the documents stated in paragraphs 2 and 3, Article 7 of the Treaty, relating to the identity and the probable location of the fugitive; the facts of the offense and the procedural history of the case; provisions of the law describing the essential elements of the offense charged and the punishment therefor; its prescriptive period; such evidence as would provide probable cause for the arrest and the committal for trial of the fugitive; and copies of the warrant or order of arrest and charging document. The foreign affairs secretary also sees to it that these accompanying documents have been certified by the principal diplomatic or consular officer of the Philippines in the United States, and that they are in English language or have English translations. Pursuant to Article 3 of the Treaty, he also determines whether the request is politically motivated, and whether the offense charged is a military offense not punishable under non-military penal legislation.2

Upon a finding of the secretary of foreign affairs that the extradition request and its supporting documents are sufficient and complete in form and substance, he shall deliver the same to the justice secretary, who shall immediately designate and authorize an attorney in his office to take charge of the case. The lawyer designated shall then file a written petition with the proper regional trial court, with a prayer that the court take the extradition request under consideration.3

When the Right to Notice and Hearing Becomes Available

According to private Respondent Jimenez, his right to due process during the preliminary stage emanates from our Constitution, particularly Section 1, Article III thereof, which provides:

No person shall be deprived of life, liberty or property without due process of law.

He claims that this right arises immediately, because of the possibility that he may be provisionally arrested pursuant to Article 9 of the RP-US Treaty, which reads:

In case of urgency, a Contracting Party may request the provisional arrest of the person sought pending presentation of the request for extradition. A request for provisional arrest may be transmitted through the diplomatic channel or directly between the Philippine Department of Justice and the United States Department of Justice.

x x x           x x x           x x x

Justice Melo's ponencia supports private respondent's contention. It states that there are two occasions wherein the prospective extraditee may be deprived of liberty: (1) in case of a provisional arrest pending the submission of the extradition request and (2) his temporary arrest during the pendency of the extradition petition in court.4 The second instance is not in issue here, because no petition has yet been filed in court.

However, the above-quoted Article 9 on provisional arrest is not automatically operative at all times, and in enforcement does not depend solely on the discretion of the requested state. From the wordings of the provision itself, there are at least three requisites: (1) there must be an urgency, and (2) there is a corresponding request (3) which must be made prior to the presentation of the request for extradition.

In the instant case, there appears to be no urgency characterizing the nature of the extradition of private respondent. Petitioner does not claim any such urgency. There is no request from the United States for the provisional arrest of Mark Jimenez either. And the secretary of justice states during the Oral Argument that he had no intention of applying for the provisional arrest of private respondent.5 Finally, the formal request for extradition has already been made; therefore, provisional arrest is not likely, as it should really come before the extradition request.6

Mark Jimenez Not in Jeopardy of Arrest

Under the outlined facts of this case, there is no open door for the application of Article 9, contrary to the apprehension of private respondent. In other words, there is no actual danger that Jimenez will be provisionally arrested or deprived of his liberty. There is as yet no threat that his rights would be trampled upon, pending the filing in court of the petition for his extradition. Hence, there is no substantial gain to be achieved in requiring the foreign affairs (or justice) secretary to notify and hear him during the preliminary stage, which basically involves only the exercise of the ministerial power of checking the sufficiency of the documents attached to the extradition request.

It must be borne in mind that during the preliminary stage, the foreign affairs secretary's determination of whether the offense charged is extraditable or politically motivated is merely preliminary. The same issue will be resolved by the trial court.7 Moreover, it is also the power and the duty of the court, not the executive authority, to determine whether there is sufficient evidence to establish probable cause that the extraditee committed the crimes charged.8 The sufficiency of the evidence of criminality is to be determined based on the laws of the requested state.9 Private Respondent Jimenez will, therefore, definitely have his full opportunity before the court, in case an extradition petition will indeed be filed, to be heard on all issues including the sufficiency of the documents supporting the extradition request.10

Private respondent insists that the United States may still request his provisional arrest at any time. That is purely speculative. It is elementary that this Court does not declare judgments or grant reliefs based on speculations, surmises or conjectures.

In any event, even granting that the arrest of Jimenez is sought at any time despite the assurance of the justice secretary that no such measure will be undertaken, our local laws and rules of procedure respecting the issuance of a warrant of arrest will govern, there being no specific provision under the Extradition Treaty by which such warrant should issue. Therefore, Jimenez will be entitled to all the rights accorded by the Constitution and the laws to any person whose arrest is being sought.

The right of one state to demand from another the return of an alleged fugitive from justice and the correlative duty to surrender the fugitive to the demanding country exist only when created by a treaty between the two countries. International law does not require the voluntary surrender of a fugitive to a foreign government, absent any treaty stipulation requiring it.11 When such a treaty does exist, as between the Philippines and the United States, it must be presumed that the contracting states perform their obligations under it with uberrimae fidei, treaty obligations being essentially characterized internationally by comity and mutual respect.

The Need for Respondent Jimenez to Face Charges in the US

One final point. Private respondent also claims that from the time the secretary of foreign affairs gave due course to the request for his extradition, incalculable prejudice has been brought upon him. And because of the moral injury caused, he should be given the opportunity at the earliest possible time to stop his extradition. I believe that any moral injury suffered by private respondent had not been caused by the mere processing of the extradition request. And it will not cease merely by granting him the opportunity to be heard by the executive authority. The concrete charges that he has allegedly committed certain offenses already exist. These charges have been filed in the United States and are part of public and official records there. Assuming the existence of moral injury, the only means by which he can restore his good reputation is to prove before the proper judicial authorities in the US that the charges against him are unfounded. Such restoration cannot be accomplished by simply contending that the documents supporting the request for his extradition are insufficient.

Conclusion

In the context of the factual milieu of private respondent, there is really no threat of any deprivation of his liberty at the present stage of the extradition process. Hence, the constitutional right to due process — particularly the right to be heard — finds no application. To grant private respondent's request for copies of the extradition documents and for an opportunity to comment thereon will constitute "over-due process" and unnecessarily delay the proceedings.

WHEREFORE, I vote to grant the Petition.

Republic of the PhilippinesSUPREME COURT

Baguio City

EN BANC

G.R. No. 190582               April 8, 2010

ANG LADLAD LGBT PARTY represented herein by its Chair, DANTON REMOTO, Petitioner, vs.COMMISSION ON ELECTIONS Respondent.

D E C I S I O N

DEL CASTILLO, J.:

... [F]reedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.

Justice Robert A. Jackson

West Virginia State Board of Education v. Barnette1

One unavoidable consequence of everyone having the freedom to choose is that others may make different choices – choices we would not make for ourselves, choices we may disapprove of, even choices that may shock or offend or anger us. However, choices are not to be legally prohibited merely because they are different, and the right to disagree and debate about important questions of public policy is a core value protected by our Bill of Rights. Indeed, our democracy is built on genuine recognition of, and respect for, diversity and difference in opinion.

Since ancient times, society has grappled with deep disagreements about the definitions and demands of morality. In many cases, where moral convictions are concerned, harmony among those theoretically opposed is an insurmountable goal. Yet herein lies the paradox – philosophical justifications about what is moral are indispensable and yet at the same time powerless to create agreement. This Court recognizes, however, that practical solutions are preferable to ideological stalemates; accommodation is better than intransigence; reason more worthy than rhetoric. This will allow persons of diverse viewpoints to live together, if not harmoniously, then, at least, civilly.

Factual Background

This is a Petition for Certiorari under Rule 65 of the Rules of Court, with an application for a writ of preliminary mandatory injunction, filed by Ang Ladlad LGBT Party (Ang Ladlad) against the Resolutions of the Commission on Elections (COMELEC) dated November 11, 20092 (the First Assailed Resolution) and December 16, 20093 (the Second Assailed Resolution) in SPP No. 09-228 (PL) (collectively, the Assailed Resolutions). The case has its roots in the COMELEC’s refusal to accredit Ang Ladlad as a party-list organization under Republic Act (RA) No. 7941, otherwise known as the Party-List System Act.4

Ang Ladlad is an organization composed of men and women who identify themselves as lesbians, gays, bisexuals, or trans-gendered individuals (LGBTs). Incorporated in 2003, Ang Ladlad first applied for registration with the COMELEC in 2006. The application for accreditation was denied on the ground that the organization had no substantial membership base. On August 17, 2009, Ang Ladlad again filed a Petition5 for registration with the COMELEC.

Before the COMELEC, petitioner argued that the LGBT community is a marginalized and under-represented sector that is particularly disadvantaged because of their sexual orientation and gender identity; that LGBTs are victims of exclusion, discrimination, and violence; that because of negative societal attitudes, LGBTs are constrained to hide their sexual orientation; and that Ang Ladlad complied with the 8-point guidelines enunciated by this Court in Ang Bagong Bayani-OFW Labor Party v. Commission on Elections.6 Ang Ladlad laid out its national membership base consisting of individual members and organizational supporters, and outlined its platform of governance.7

On November 11, 2009, after admitting the petitioner’s evidence, the COMELEC (Second Division) dismissed the Petition on moral grounds, stating that:

x x x This Petition is dismissible on moral grounds. Petitioner defines the Filipino Lesbian, Gay, Bisexual and Transgender (LGBT) Community, thus:

x x x a marginalized and under-represented sector that is particularly disadvantaged because of their sexual orientation and gender identity.

and proceeded to define sexual orientation as that which:

x x x refers to a person’s capacity for profound emotional, affectional and sexual attraction to, and intimate and sexual relations with, individuals of a different gender, of the same gender, or more than one gender."

This definition of the LGBT sector makes it crystal clear that petitioner tolerates immorality which offends religious beliefs. In Romans 1:26, 27, Paul wrote:

For this cause God gave them up into vile affections, for even their women did change the natural use into that which is against nature: And likewise also the men, leaving the natural use of the woman, burned in their lust one toward another; men with men working that which is unseemly, and receiving in themselves that recompense of their error which was meet.

In the Koran, the hereunder verses are pertinent:

For ye practice your lusts on men in preference to women "ye are indeed a people transgressing beyond bounds." (7.81) "And we rained down on them a shower (of brimstone): Then see what was the end of those who indulged in sin and crime!" (7:84) "He said: "O my Lord! Help Thou me against people who do mischief" (29:30).

As correctly pointed out by the Law Department in its Comment dated October 2, 2008:

The ANG LADLAD apparently advocates sexual immorality as indicated in the Petition’s par. 6F: ‘Consensual partnerships or relationships by gays and lesbians who are already of age’. It is further indicated in par. 24 of the Petition which waves for the record: ‘In 2007, Men Having Sex with Men or MSMs in the Philippines were estimated as 670,000 (Genesis 19 is the history of Sodom and Gomorrah).

Laws are deemed incorporated in every contract, permit, license, relationship, or accreditation. Hence, pertinent provisions of the Civil Code and the Revised Penal Code are deemed part of the requirement to be complied with for accreditation.

ANG LADLAD collides with Article 695 of the Civil Code which defines nuisance as ‘Any act, omission, establishment, business, condition of property, or anything else which x x x (3) shocks, defies; or disregardsdecency or morality x x x

It also collides with Article 1306 of the Civil Code: ‘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. Art 1409 of the Civil Code provides that ‘Contracts whose cause, object or purpose is contrary to law, morals, good customs, public order or public policy’ are inexistent and void from the beginning.

Finally to safeguard the morality of the Filipino community, the Revised Penal Code, as amended, penalizes ‘Immoral doctrines, obscene publications and exhibitions and indecent shows’ as follows:

Art. 201. Immoral doctrines, obscene publications and exhibitions, and indecent shows. — The penalty of prision mayor or a fine ranging from six thousand to twelve thousand pesos, or both such imprisonment and fine, shall be imposed upon:

1. Those who shall publicly expound or proclaim doctrines openly contrary to public morals;

2. (a) The authors of obscene literature, published with their knowledge in any form; the editors publishing such literature; and the owners/operators of the establishment selling the same;

(b) Those who, in theaters, fairs, cinematographs or any other place, exhibit indecent or immoral plays, scenes, acts or shows, it being understood that the obscene literature or indecent or immoral plays, scenes, acts or shows, whether live or in film, which are prescribed by virtue hereof, shall include those which: (1) glorify criminals or condone crimes; (2) serve no other purpose but to satisfy the market for violence, lust or pornography; (3) offend any race or religion; (4) tend to abet traffic in and use of prohibited drugs; and (5) are contrary to law, public order, morals, good customs,established policies, lawful orders, decrees and edicts.

3. Those who shall sell, give away or exhibit films, prints, engravings, sculpture or literature which are offensive to morals.

Petitioner should likewise be denied accreditation not only for advocating immoral doctrines but likewise for not being truthful when it said that it "or any of its nominees/party-list representatives have not violated or failed to comply with laws, rules, or regulations relating to the elections."

Furthermore, should this Commission grant the petition, we will be exposing our youth to an environment that does not conform to the teachings of our faith. Lehman Strauss, a famous bible teacher and writer in the U.S.A. said in one article that "older practicing homosexuals are a threat to the youth." As an agency of the government, ours too is the State’s avowed duty under Section 13, Article II of the Constitution to protect our youth from moral and spiritual degradation.8

When Ang Ladlad sought reconsideration,9 three commissioners voted to overturn the First Assailed Resolution (Commissioners Gregorio Y. Larrazabal, Rene V. Sarmiento, and Armando Velasco), while three commissioners voted to deny Ang Ladlad’s Motion for Reconsideration (Commissioners Nicodemo T. Ferrer, Lucenito N. Tagle, and Elias R. Yusoph). The COMELEC Chairman, breaking the tie and speaking for the majority in his Separate Opinion, upheld the First Assailed Resolution, stating that:

I. The Spirit of Republic Act No. 7941

Ladlad is applying for accreditation as a sectoral party in the party-list system. Even assuming that it has properly proven its under-representation and marginalization, it cannot be said that Ladlad’s expressed sexual orientations per se would benefit the nation as a whole.

Section 2 of the party-list law unequivocally states that the purpose of the party-list system of electing congressional representatives is to enable Filipino citizens belonging to marginalized and under-represented sectors, organizations and parties, and who lack well-defined political constituencies but who could contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole, to become members of the House of Representatives.

If entry into the party-list system would depend only on the ability of an organization to represent its constituencies, then all representative organizations would have found themselves into the party-list race. But that is not the intention of the framers of the law. The party-list system is not a tool to advocate tolerance and acceptance of misunderstood persons or groups of persons. Rather, the party-list system is a tool for the realization of aspirations of marginalized individuals whose interests are also the nation’s   – only that their interests have not been brought to the attention of the nation because of their under representation. Until the time comes when Ladlad is able to justify that having mixed sexual orientations and transgender identities is beneficial to the nation, its application for accreditation under the party-list system will remain just that.

II. No substantial differentiation

In the United States, whose equal protection doctrine pervades Philippine jurisprudence, courts do not recognize lesbians, gays, homosexuals, and bisexuals (LGBT) as a "special class" of individuals. x x x Significantly, it has also been held that homosexuality is not a constitutionally protected fundamental right, and that "nothing in the U.S. Constitution discloses a comparable intent to protect or promote the social or legal equality of homosexual relations," as in the case of race or religion or belief.

x x x x

Thus, even if society’s understanding, tolerance, and acceptance of LGBT’s is elevated, there can be no denying that Ladlad constituencies are still males and females, and they will remain either male or female protected by the same Bill of Rights that applies to all citizens alike.

x x x x

IV. Public Morals

x x x There is no question about not imposing on Ladlad Christian or Muslim religious practices. Neither is there any attempt to any particular religious group’s moral rules on Ladlad. Rather, what are being adopted as moral parameters and precepts are generally accepted public morals. They are possibly religious-based, but as a society, the Philippines cannot ignore its more than 500 years of Muslim and Christian upbringing, such that some moral precepts espoused by said religions have sipped [sic] into society and these are not publicly accepted moral norms.

V. Legal Provisions

But above morality and social norms, they have become part of the law of the land. Article 201 of the Revised Penal Code imposes the penalty of prision mayor upon "Those who shall publicly expound or proclaim doctrines openly contrary to public morals." It penalizes "immoral doctrines, obscene publications and exhibition and indecent shows." "Ang Ladlad" apparently falls under these legal provisions. This is clear from its Petition’s paragraph 6F: "Consensual partnerships or relationships by gays and lesbians who are already of age’ It is further indicated in par. 24 of the Petition which waves for the record: ‘In 2007, Men Having Sex with Men or MSMs in the Philippines were estimated as 670,000. Moreoever, Article 694 of the Civil Code defines "nuisance" as any act, omission x x x or anything else x x x which shocks, defies or disregards decency or morality x x x." These are all unlawful.10

On January 4, 2010, Ang Ladlad filed this Petition, praying that the Court annul the Assailed Resolutions and direct the COMELEC to grant Ang Ladlad’s application for accreditation. Ang Ladlad also sought the issuance ex parte of a preliminary mandatory injunction against the COMELEC, which had previously announced that it would begin printing the final ballots for the May 2010 elections by January 25, 2010.

On January 6, 2010, we ordered the Office of the Solicitor General (OSG) to file its Comment on behalf of COMELEC not later than 12:00 noon of January 11, 2010.11 Instead of filing a Comment, however, the OSG filed a Motion for Extension, requesting that it be given until January 16, 2010 to Comment.12 Somewhat surprisingly, the OSG later filed a Comment in support of petitioner’s application.13 Thus, in order to give COMELEC the opportunity to fully ventilate its position, we required it to file its own comment.14 The COMELEC, through its Law Department, filed its Comment on February 2, 2010.15

In the meantime, due to the urgency of the petition, we issued a temporary restraining order on January 12, 2010, effective immediately and continuing until further orders from this Court, directing the COMELEC to cease and desist from implementing the Assailed Resolutions.16

Also, on January 13, 2010, the Commission on Human Rights (CHR) filed a Motion to Intervene or to Appear as Amicus Curiae, attaching thereto its Comment-in-Intervention.17 The CHR opined that the denial of Ang Ladlad’spetition on moral grounds violated the standards and principles of the Constitution, the Universal Declaration of Human Rights (UDHR), and the International Covenant on Civil and Political Rights (ICCPR). On January 19, 2010, we granted the CHR’s motion to intervene.

On January 26, 2010, Epifanio D. Salonga, Jr. filed his Motion to Intervene18 which motion was granted on February 2, 2010.19

The Parties’ Arguments

Ang Ladlad argued that the denial of accreditation, insofar as it justified the exclusion by using religious dogma, violated the constitutional guarantees against the establishment of religion. Petitioner also claimed that the Assailed Resolutions contravened its constitutional rights to privacy, freedom of speech and assembly, and equal protection of laws, as well as constituted violations of the Philippines’ international obligations against discrimination based on sexual orientation.

The OSG concurred with Ang Ladlad’s petition and argued that the COMELEC erred in denying petitioner’s application for registration since there was no basis for COMELEC’s allegations of immorality. It also opined that LGBTs have their own special interests and concerns which should have been recognized by the COMELEC as a separate classification. However, insofar as the purported violations of petitioner’s freedom of speech, expression, and assembly were concerned, the OSG maintained that there had been no restrictions on these rights.

In its Comment, the COMELEC reiterated that petitioner does not have a concrete and genuine national political agenda to benefit the nation and that the petition was validly dismissed on moral grounds. It also argued for the first time that the LGBT sector is not among the sectors enumerated by the Constitution and RA 7941, and that petitioner made untruthful statements in its petition when it alleged its national existence contrary to actual verification reports by COMELEC’s field personnel.

Our Ruling

We grant the petition.

Compliance with the Requirements of the Constitution and Republic Act No. 7941

The COMELEC denied Ang Ladlad’s application for registration on the ground that the LGBT sector is neither enumerated in the Constitution and RA 7941, nor is it associated with or related to any of the sectors in the enumeration.

Respondent mistakenly opines that our ruling in Ang Bagong Bayani stands for the proposition that only those sectors specifically enumerated in the law or related to said sectors (labor, peasant, fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas workers, and professionals) may be registered under the party-list system. As we explicitly ruled in Ang Bagong Bayani-OFW Labor Party v. Commission on Elections,20 "the enumeration of marginalized and under-represented sectors is not exclusive". The crucial element is not whether a sector is specifically enumerated, but whether a particular organization complies with the requirements of the Constitution and RA 7941.

Respondent also argues that Ang Ladlad made untruthful statements in its petition when it alleged that it had nationwide existence through its members and affiliate organizations. The COMELEC claims that upon verification by its field personnel, it was shown that "save for a few isolated places in the country, petitioner does not exist in almost all provinces in the country."21

This argument that "petitioner made untruthful statements in its petition when it alleged its national existence" is a new one; previously, the COMELEC claimed that petitioner was "not being truthful when it said that it or any of its nominees/party-list representatives have not violated or failed to comply with laws, rules, or regulations relating to the elections." Nowhere was this ground for denial of petitioner’s accreditation mentioned or even alluded to in the Assailed Resolutions. This, in itself, is quite curious, considering that the reports of petitioner’s alleged non-existence were already available to the COMELEC prior to the issuance of the First Assailed Resolution. At best, this is irregular procedure; at worst, a belated afterthought, a change in respondent’s theory, and a serious violation of petitioner’s right to procedural due process.

Nonetheless, we find that there has been no misrepresentation. A cursory perusal of Ang Ladlad’s initial petition shows that it never claimed to exist in each province of the Philippines. Rather, petitioner alleged that the LGBT community in the Philippines was estimated to constitute at least 670,000 persons; that it had 16,100 affiliates and members around the country, and 4,044 members in its electronic discussion group.22 Ang Ladlad also represented itself to be "a national LGBT umbrella organization with affiliates around the Philippines composed of the following LGBT networks:"

§ Abra Gay Association

§ Aklan Butterfly Brigade (ABB) – Aklan

§ Albay Gay Association

§ Arts Center of Cabanatuan City – Nueva Ecija

§ Boys Legion – Metro Manila

§ Cagayan de Oro People Like Us (CDO PLUS)

§ Can’t Live in the Closet, Inc. (CLIC) – Metro Manila

§ Cebu Pride – Cebu City

§ Circle of Friends

§ Dipolog Gay Association – Zamboanga del Norte

§ Gay, Bisexual, & Transgender Youth Association (GABAY)

§ Gay and Lesbian Activists Network for Gender Equality (GALANG) – Metro Manila

§ Gay Men’s Support Group (GMSG) – Metro Manila

§ Gay United for Peace and Solidarity (GUPS) – Lanao del Norte

§ Iloilo City Gay Association – Iloilo City

§ Kabulig Writer’s Group – Camarines Sur

§ Lesbian Advocates Philippines, Inc. (LEAP)

§ LUMINA – Baguio City

§ Marikina Gay Association – Metro Manila

§ Metropolitan Community Church (MCC) – Metro Manila

§ Naga City Gay Association – Naga City

§ ONE BACARDI

§ Order of St. Aelred (OSAe) – Metro Manila

§ PUP LAKAN

§ RADAR PRIDEWEAR

§ Rainbow Rights Project (R-Rights), Inc. – Metro Manila

§ San Jose del Monte Gay Association – Bulacan

§ Sining Kayumanggi Royal Family – Rizal

§ Society of Transexual Women of the Philippines (STRAP) – Metro Manila

§ Soul Jive – Antipolo, Rizal

§ The Link – Davao City

§ Tayabas Gay Association – Quezon

§ Women’s Bisexual Network – Metro Manila

§ Zamboanga Gay Association – Zamboanga City23

Since the COMELEC only searched for the names ANG LADLAD LGBT or LADLAD LGBT, it is no surprise that they found that petitioner had no presence in any of these regions. In fact, if COMELEC’s findings are to be believed, petitioner does not even exist in Quezon City, which is registered as Ang Ladlad’s principal place of business.

Against this backdrop, we find that Ang Ladlad has sufficiently demonstrated its compliance with the legal requirements for accreditation. Indeed, aside from COMELEC’s moral objection and the belated allegation of non-existence, nowhere in the records has the respondent ever found/ruled that Ang Ladlad is not qualified to register as a party-list organization under any of the requisites under RA 7941 or the guidelines in Ang Bagong Bayani. The difference, COMELEC claims, lies in Ang Ladlad’s morality, or lack thereof.

Religion as the Basis for Refusal to Accept Ang Ladlad’s Petition for Registration

Our Constitution provides in Article III, Section 5 that "[n]o law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof." At bottom, what our non-establishment clause calls for is "government neutrality in religious matters."24 Clearly, "governmental reliance on religious justification is inconsistent with this policy of neutrality."25 We thus find that it was grave violation of the non-establishment clause for the COMELEC to utilize the Bible and the Koran to justify the exclusion of Ang Ladlad.

Rather than relying on religious belief, the legitimacy of the Assailed Resolutions should depend, instead, on whether the COMELEC is able to advance some justification for its rulings beyond mere conformity to religious doctrine. Otherwise stated, government must act for secular purposes and in ways that have primarily secular effects. As we held in Estrada v. Escritor:26

x x x The morality referred to in the law is public and necessarily secular, not religious as the dissent of Mr. Justice Carpio holds. "Religious teachings as expressed in public debate may influence the civil public order but public moral disputes may be resolved only on grounds articulable in secular terms." Otherwise, if government relies upon religious beliefs in formulating public policies and morals, the resulting policies and morals would require conformity to what some might regard as religious programs or agenda. The non-believers would therefore be compelled to conform to a standard of conduct buttressed by a religious belief, i.e., to a "compelled religion," anathema to religious freedom. Likewise, if government based its actions upon religious beliefs, it would tacitly approve or endorse that belief and thereby also tacitly disapprove contrary religious or non-religious views that would not support the policy. As a result, government will not provide full religious freedom for all its citizens, or even make it appear that those whose beliefs are disapproved are second-class citizens.1avvphi1

In other words, government action, including its proscription of immorality as expressed in criminal law like concubinage, must have a secular purpose. That is, the government proscribes this conduct because it is "detrimental (or dangerous) to those conditions upon which depend the existence and progress of human society" and not because the conduct is proscribed by the beliefs of one religion or the other. Although admittedly, moral judgments based on religion might have a compelling influence on those engaged in public deliberations over what actions would be considered a moral disapprobation punishable by law. After all, they might also be adherents of a religion and thus have religious opinions and moral codes with a compelling influence on them; the human mind endeavors to regulate the temporal and spiritual institutions of society in a uniform manner, harmonizing earth with heaven. Succinctly put, a law could be religious or Kantian or Aquinian or utilitarian in its deepest roots, but it must have an articulable and discernible secular purpose and justification to pass scrutiny of the religion clauses. x x x Recognizing the religious nature of the Filipinos and the elevating influence of religion in society, however, the Philippine constitution's religion clauses prescribe not a strict but a benevolent neutrality. Benevolent neutrality recognizes that government must pursue its secular goals and interests but at the same time strive to uphold religious liberty to the greatest extent possible within flexible constitutional limits. Thus, although the morality contemplated by laws is secular, benevolent neutrality could allow for accommodation of morality based on religion, provided it does not offend compelling state interests.27

Public Morals as a Ground to Deny Ang Ladlad’s Petition for Registration

Respondent suggests that although the moral condemnation of homosexuality and homosexual conduct may be religion-based, it has long been transplanted into generally accepted public morals. The COMELEC argues:

Petitioner’s accreditation was denied not necessarily because their group consists of LGBTs but because of the danger it poses to the people especially the youth. Once it is recognized by the government, a sector which believes that there is nothing wrong in having sexual relations with individuals of the same gender is a bad example. It will bring down the standard of morals we cherish in our civilized society. Any society without a set of moral precepts is in danger of losing its own existence.28

We are not blind to the fact that, through the years, homosexual conduct, and perhaps homosexuals themselves, have borne the brunt of societal disapproval. It is not difficult to imagine the reasons behind this censure – religious beliefs, convictions about the preservation of marriage, family, and procreation, even dislike or distrust of homosexuals themselves and their perceived lifestyle. Nonetheless, we recall that the Philippines has not seen fit to criminalize homosexual conduct. Evidently, therefore, these "generally accepted public morals" have not been convincingly transplanted into the realm of law.29

The Assailed Resolutions have not identified any specific overt immoral act performed by Ang Ladlad. Even the OSG agrees that "there should have been a finding by the COMELEC that the group’s members have committed or are committing immoral acts."30 The OSG argues:

x x x A person may be sexually attracted to a person of the same gender, of a different gender, or more than one gender, but mere attraction does not translate to immoral acts. There is a great divide between thought and action. Reduction ad absurdum. If immoral thoughts could be penalized, COMELEC would have its hands full of disqualification cases against both the "straights" and the gays." Certainly this is not the intendment of the law.31

Respondent has failed to explain what societal ills are sought to be prevented, or why special protection is required for the youth. Neither has the COMELEC condescended to justify its position that petitioner’s admission into the party-list system would be so harmful as to irreparably damage the moral fabric of society. We, of course, do not suggest that the state is wholly without authority to regulate matters concerning morality, sexuality, and sexual relations, and we recognize that the government will and should continue to restrict behavior considered detrimental to society. Nonetheless, we cannot countenance advocates who, undoubtedly with the loftiest of intentions, situate morality on one end of an argument or another, without bothering to go through the rigors of legal reasoning and explanation. In this, the notion of morality is robbed of all value. Clearly then, the bare invocation of morality will not remove an issue from our scrutiny.

We also find the COMELEC’s reference to purported violations of our penal and civil laws flimsy, at best; disingenuous, at worst. Article 694 of the Civil Code defines a nuisance as "any act, omission, establishment, condition of property, or anything else which shocks, defies, or disregards decency or morality," the remedies for which are a prosecution under the Revised Penal Code or any local ordinance, a civil action, or abatement without judicial proceedings.32 A violation of Article 201 of the Revised Penal Code, on the other hand, requires proof beyond reasonable doubt to support a criminal conviction. It hardly needs to be emphasized that mere allegation of violation of laws is not proof, and a mere blanket invocation of public morals cannot replace the institution of civil or criminal proceedings and a judicial determination of liability or culpability.

As such, we hold that moral disapproval, without more, is not a sufficient governmental interest to justify exclusion of homosexuals from participation in the party-list system. The denial of Ang Ladlad’s registration on purely moral grounds amounts more to a statement of dislike and disapproval of homosexuals, rather than a tool to further any substantial public interest. Respondent’s blanket justifications give rise to the inevitable conclusion that the COMELEC targets homosexuals themselves as a class, not because of any particular morally reprehensible act. It is this selective targeting that implicates our equal protection clause.

Equal Protection

Despite the absolutism of Article III, Section 1 of our Constitution, which provides "nor shall any person be denied equal protection of the laws," courts have never interpreted the provision as an absolute prohibition on classification. "Equality," said Aristotle, "consists in the same treatment of similar persons."33 The equal protection clause guarantees that no person or class of persons shall be deprived of the same protection of laws which is enjoyed by other persons or other classes in the same place and in like circumstances.34

Recent jurisprudence has affirmed that if a law neither burdens a fundamental right nor targets a suspect class, we will uphold the classification as long as it bears a rational relationship to some legitimate government end.35 In Central Bank Employees Association, Inc. v. Banko Sentral ng Pilipinas,36 we declared that "[i]n our jurisdiction, the standard of analysis of equal protection challenges x x x have followed the ‘rational basis’ test, coupled with a deferential attitude to legislative

classifications and a reluctance to invalidate a law unless there is a showing of a clear and unequivocal breach of the Constitution."37

The COMELEC posits that the majority of the Philippine population considers homosexual conduct as immoral and unacceptable, and this constitutes sufficient reason to disqualify the petitioner. Unfortunately for the respondent, the Philippine electorate has expressed no such belief. No law exists to criminalize homosexual behavior or expressions or parties about homosexual behavior. Indeed, even if we were to assume that public opinion is as the COMELEC describes it, the asserted state interest here – that is, moral disapproval of an unpopular minority – is not a legitimate state interest that is sufficient to satisfy rational basis review under the equal protection clause. The COMELEC’s differentiation, and its unsubstantiated claim that Ang Ladlad cannot contribute to the formulation of legislation that would benefit the nation, furthers no legitimate state interest other than disapproval of or dislike for a disfavored group.

From the standpoint of the political process, the lesbian, gay, bisexual, and transgender have the same interest in participating in the party-list system on the same basis as other political parties similarly situated. State intrusion in this case is equally burdensome. Hence, laws of general application should apply with equal force to LGBTs, and they deserve to participate in the party-list system on the same basis as other marginalized and under-represented sectors.

It bears stressing that our finding that COMELEC’s act of differentiating LGBTs from heterosexuals insofar as the party-list system is concerned does not imply that any other law distinguishing between heterosexuals and homosexuals under different circumstances would similarly fail. We disagree with the OSG’s position that homosexuals are a class in themselves for the purposes of the equal protection clause.38 We are not prepared to single out homosexuals as a separate class meriting special or differentiated treatment. We have not received sufficient evidence to this effect, and it is simply unnecessary to make such a ruling today. Petitioner itself has merely demanded that it be recognized under the same basis as all other groups similarly situated, and that the COMELEC made "an unwarranted and impermissible classification not justified by the circumstances of the case."

Freedom of Expression and Association

Under our system of laws, every group has the right to promote its agenda and attempt to persuade society of the validity of its position through normal democratic means.39 It is in the public square that deeply held convictions and differing opinions should be distilled and deliberated upon. As we held in Estrada v. Escritor:40

In a democracy, this common agreement on political and moral ideas is distilled in the public square. Where citizens are free, every opinion, every prejudice, every aspiration, and every moral discernment has access to the public square where people deliberate the order of their life together. Citizens are the bearers of opinion, including opinion shaped by, or espousing religious belief, and these citizens have equal access to the public square. In this representative democracy, the state is prohibited from determining which convictions and moral judgments may be proposed for public deliberation. Through a constitutionally designed process, the people deliberate and decide. Majority rule is a necessary principle in this democratic governance. Thus, when public deliberation on moral judgments is finally crystallized into law, the laws will largely reflect the beliefs and preferences of the majority, i.e., the mainstream or median groups. Nevertheless, in the very act of adopting and accepting a constitution and the limits it specifies – including protection of religious freedom "not only for a minority, however small – not only for a majority, however large – but for each of us" – the majority imposes upon itself a self-denying ordinance. It promises not to do what it otherwise could do: to ride roughshod over the dissenting minorities.

Freedom of expression constitutes one of the essential foundations of a democratic society, and this freedom applies not only to those that are favorably received but also to those that offend, shock, or disturb. Any restriction imposed in this sphere must be proportionate to the legitimate aim pursued. Absent any compelling state interest, it is not for the COMELEC or this Court to impose its views on the populace. Otherwise stated, the COMELEC is certainly not free to interfere with speech for no better reason than promoting an approved message or discouraging a disfavored one.

This position gains even more force if one considers that homosexual conduct is not illegal in this country. It follows that both expressions concerning one’s homosexuality and the activity of forming a political association that supports LGBT individuals are protected as well.

Other jurisdictions have gone so far as to categorically rule that even overwhelming public perception that homosexual conduct violates public morality does not justify criminalizing same-sex conduct.41 European and United Nations judicial decisions have ruled in favor of gay rights claimants on both privacy and equality grounds, citing general privacy and equal protection provisions in foreign and international texts.42 To the extent that there is much to learn from other jurisdictions that have reflected on the issues we face here, such jurisprudence is certainly illuminating. These foreign

authorities, while not formally binding on Philippine courts, may nevertheless have persuasive influence on the Court’s analysis.

In the area of freedom of expression, for instance, United States courts have ruled that existing free speech doctrines protect gay and lesbian rights to expressive conduct. In order to justify the prohibition of a particular expression of opinion, public institutions must show that their actions were caused by "something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint."43

With respect to freedom of association for the advancement of ideas and beliefs, in Europe, with its vibrant human rights tradition, the European Court of Human Rights (ECHR) has repeatedly stated that a political party may campaign for a change in the law or the constitutional structures of a state if it uses legal and democratic means and the changes it proposes are consistent with democratic principles. The ECHR has emphasized that political ideas that challenge the existing order and whose realization is advocated by peaceful means must be afforded a proper opportunity of expression through the exercise of the right of association, even if such ideas may seem shocking or unacceptable to the authorities or the majority of the population.44 A political group should not be hindered solely because it seeks to publicly debate controversial political issues in order to find solutions capable of satisfying everyone concerned.45 Only if a political party incites violence or puts forward policies that are incompatible with democracy does it fall outside the protection of the freedom of association guarantee.46

We do not doubt that a number of our citizens may believe that homosexual conduct is distasteful, offensive, or even defiant. They are entitled to hold and express that view. On the other hand, LGBTs and their supporters, in all likelihood, believe with equal fervor that relationships between individuals of the same sex are morally equivalent to heterosexual relationships. They, too, are entitled to hold and express that view. However, as far as this Court is concerned, our democracy precludes using the religious or moral views of one part of the community to exclude from consideration the values of other members of the community.

Of course, none of this suggests the impending arrival of a golden age for gay rights litigants. It well may be that this Decision will only serve to highlight the discrepancy between the rigid constitutional analysis of this Court and the more complex moral sentiments of Filipinos. We do not suggest that public opinion, even at its most liberal, reflect a clear-cut strong consensus favorable to gay rights claims and we neither attempt nor expect to affect individual perceptions of homosexuality through this Decision.

The OSG argues that since there has been neither prior restraint nor subsequent punishment imposed on Ang Ladlad, and its members have not been deprived of their right to voluntarily associate, then there has been no restriction on their freedom of expression or association. The OSG argues that:

There was no utterance restricted, no publication censored, or any assembly denied. [COMELEC] simply exercised its authority to review and verify the qualifications of petitioner as a sectoral party applying to participate in the party-list system. This lawful exercise of duty cannot be said to be a transgression of Section 4, Article III of the Constitution.

x x x x

A denial of the petition for registration x x x does not deprive the members of the petitioner to freely take part in the conduct of elections. Their right to vote will not be hampered by said denial. In fact, the right to vote is a constitutionally-guaranteed right which cannot be limited.

As to its right to be elected in a genuine periodic election, petitioner contends that the denial of Ang Ladlad’s petition has the clear and immediate effect of limiting, if not outrightly nullifying the capacity of its members to fully and equally participate in public life through engagement in the party list elections.

This argument is puerile. The holding of a public office is not a right but a privilege subject to limitations imposed by law. x x x47

The OSG fails to recall that petitioner has, in fact, established its qualifications to participate in the party-list system, and – as advanced by the OSG itself – the moral objection offered by the COMELEC was not a limitation imposed by law. To the extent, therefore, that the petitioner has been precluded, because of COMELEC’s action, from publicly expressing its views as a political party and participating on an equal basis in the political process with other equally-qualified party-list candidates, we find that there has, indeed, been a transgression of petitioner’s fundamental rights.

Non-Discrimination and International Law

In an age that has seen international law evolve geometrically in scope and promise, international human rights law, in particular, has grown dynamically in its attempt to bring about a more just and humane world order. For individuals and groups struggling with inadequate structural and governmental support, international human rights norms are particularly significant, and should be effectively enforced in domestic legal systems so that such norms may become actual, rather than ideal, standards of conduct.

Our Decision today is fully in accord with our international obligations to protect and promote human rights. In particular, we explicitly recognize the principle of non-discrimination as it relates to the right to electoral participation, enunciated in the UDHR and the ICCPR.

The principle of non-discrimination is laid out in Article 26 of the ICCPR, as follows:

Article 26

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

In this context, the principle of non-discrimination requires that laws of general application relating to elections be applied equally to all persons, regardless of sexual orientation. Although sexual orientation is not specifically enumerated as a status or ratio for discrimination in Article 26 of the ICCPR, the ICCPR Human Rights Committee has opined that the reference to "sex" in Article 26 should be construed to include "sexual orientation."48Additionally, a variety of United Nations bodies have declared discrimination on the basis of sexual orientation to be prohibited under various international agreements.49

The UDHR provides:

Article 21.

(1) Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.

Likewise, the ICCPR states:

Article 25

Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions:

(a) To take part in the conduct of public affairs, directly or through freely chosen representatives;

(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;

(c) To have access, on general terms of equality, to public service in his country.

As stated by the CHR in its Comment-in-Intervention, the scope of the right to electoral participation is elaborated by the Human Rights Committee in its General Comment No. 25 (Participation in Public Affairs and the Right to Vote) as follows:

1. Article 25 of the Covenant recognizes and protects the right of every citizen to take part in the conduct of public affairs, the right to vote and to be elected and the right to have access to public service. Whatever form of constitution or government is in force, the Covenant requires States to adopt such legislative and other measures as may be necessary to ensure that citizens have an effective opportunity to enjoy the rights it protects. Article 25 lies at the core of democratic government based on the consent of the people and in conformity with the principles of the Covenant.

x x x x

15. The effective implementation of the right and the opportunity to stand for elective office ensures that persons entitled to vote have a free choice of candidates. Any restrictions on the right to stand for election, such as minimum age, must be justifiable on objective and reasonable criteria. Persons who are otherwise eligible to stand for election should not be excluded by unreasonable or discriminatory requirements such as education, residence or descent, or by reason of political affiliation. No person should suffer discrimination or disadvantage of any kind because of that person's candidacy. States parties should indicate and explain the legislative provisions which exclude any group or category of persons from elective office.50

We stress, however, that although this Court stands willing to assume the responsibility of giving effect to the Philippines’ international law obligations, the blanket invocation of international law is not the panacea for all social ills. We refer now to the petitioner’s invocation of the Yogyakarta Principles (the Application of International Human Rights Law In Relation to Sexual Orientation and Gender Identity),51 which petitioner declares to reflect binding principles of international law.

At this time, we are not prepared to declare that these Yogyakarta Principles contain norms that are obligatory on the Philippines. There are declarations and obligations outlined in said Principles which are not reflective of the current state of international law, and do not find basis in any of the sources of international law enumerated under Article 38(1) of the Statute of the International Court of Justice.52 Petitioner has not undertaken any objective and rigorous analysis of these alleged principles of international law to ascertain their true status.

We also hasten to add that not everything that society – or a certain segment of society – wants or demands is automatically a human right. This is not an arbitrary human intervention that may be added to or subtracted from at will. It is unfortunate that much of what passes for human rights today is a much broader context of needs that identifies many social desires as rights in order to further claims that international law obliges states to sanction these innovations. This has the effect of diluting real human rights, and is a result of the notion that if "wants" are couched in "rights" language, then they are no longer controversial.1avvphi1

Using even the most liberal of lenses, these Yogyakarta Principles, consisting of a declaration formulated by various international law professors, are – at best – de lege ferenda – and do not constitute binding obligations on the Philippines. Indeed, so much of contemporary international law is characterized by the "soft law" nomenclature, i.e., international law is full of principles that promote international cooperation, harmony, and respect for human rights, most of which amount to no more than well-meaning desires, without the support of either State practice or opinio juris.53

As a final note, we cannot help but observe that the social issues presented by this case are emotionally charged, societal attitudes are in flux, even the psychiatric and religious communities are divided in opinion. This Court’s role is not to impose its own view of acceptable behavior. Rather, it is to apply the Constitution and laws as best as it can, uninfluenced by public opinion, and confident in the knowledge that our democracy is resilient enough to withstand vigorous debate.

WHEREFORE, the Petition is hereby GRANTED. The Resolutions of the Commission on Elections dated November 11, 2009 and December 16, 2009 in SPP No. 09-228 (PL) are hereby SET ASIDE. The Commission on Elections is directed to GRANT petitioner’s application for party-list accreditation.

SO ORDERED.

MARIANO C. DEL CASTILLOAssociate Justice