Supreme Court of the United States

Marbury v. Madison, 5 U.S. (1 Cranch) 137; 2 L. Ed. 60 (1803)

MR. JUSTICE MARSHALL delivered the opinion of the Court. In the order in which the court has viewed this subject, the following questions have been considered and decided. 1. Has the applicant a right to the commission he demands? 2. If he has a right, and that right has been violated, do the laws of his country afford him a remedy? 3. If they do afford him a remedy, is it a mandamus issuing from this court? . . . It is . . . the opinion of the court, That, by signing the commission of Mr. Marbury, the President of the United States appointed him a justice of peace, for the county of Washington in the District of Columbia; and that the seal of the United States, affixed thereto by the Secretary of State, is conclusive testimony of the verity of the signature, and of the completion of the appointment; and that the appointment conferred on him a legal right to the office for the space of five years. That, having this legal title to the office, he has a consequent right to the commission; a refusal to deliver which, is a plain violation of that right, for which the laws of this country afford him a remedy. It remains to be enquired whether, 3. He is entitled to the remedy for which applies. This depends on, 1. The nature of the writ applied for and 2. The power of this court. . . . This, then, is a plain case for mandamus, either to deliver the commission, or a copy of it from the record; and it only remains to be enquired, whether it can issue from this court. The act to establish the judicial courts of the United States authorizes the Supreme Court "to issue writs of mandamus in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States." The Secretary of State, being a person holding an office under the authority of the United States, is precisely within the letter of the description and if this court is not authorized to issue a writ of mandamus to such an officer, it must be because the law is unconstitutional, and therefore

absolutely incapable of conferring the authority, and assigning the duties which its words purport to confer and assign. The Constitution vests the whole judicial power of the United States in one supreme court, and such inferior courts as Congress shall, from time to time, ordain and establish. This power is expressly extended to all cases arising under the laws of the United States; and, consequently, in some form, may be exercised over the present case; because the right claimed is given by a law of the United States. In the distribution of this power it is declared that "the Supreme Court shall have original jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party. In all other cases, the Supreme Court shall have appellate jurisdiction." It has been insisted at the bar, that, as the original grant of jurisdiction to the Supreme and inferior courts, is general, and the clause assigning original jurisdiction to the Supreme Court contains no negative or restrictive words, the power remains to the legislature to assign original jurisdiction to that court in other cases than those specified in the article which has been recited; provided those cases belong to the judicial power of the United States. If it had been intended to leave it in the discretion of the legislature to apportion the judicial power between the Supreme and inferior courts according to the will of that body, it would certainly have been useless to have proceeded further than to have defined the judicial power, and the tribunals in which it should be vested. The subsequent part of the section is mere surplusage, is entirely without meaning. If Congress remains at liberty to give this court appellate jurisdiction, where the Constitution has declared their jurisdiction shall be original; and original jurisdiction where the Constitution has declared it shall be appellate, the distribution of jurisdiction made in the Constitution is form without substance. Affirmative words are often, in their operation, negative of other objects than those affirmed; and in this case, a negative or exclusive sense must be given to them, or they have no operation at all. It cannot he presumed that any clause in the Constitution is intended to be without effect; and, therefore, such a construction is inadmissible unless the words require it. . . . To enable this court, then to issue a mandamus, it must be shown to be an exercise of appellate jurisdiction, or to be necessary to enable them to exercise appellate jurisdiction. It has been stated at the bar that the appellate jurisdiction may be exercised in a variety of forms, and that, if it be the will of the legislature that a mandamus should be used for that purpose, that will must be obeyed. This is true, yet the jurisdiction must be appellate, not original. It is the essential criterion of appellate jurisdiction that it revises and corrects the proceedings in a cause already instituted, and does not create that cause. Although, therefore, a mandamus may be directed to courts, yet to issue such a writ to an officer for the delivery of a paper is in effect the same as to sustain an original action for that paper, and, therefore, seems not to belong to

appellate, but to original jurisdiction. Neither is it necessary, in such a case as this, to enable the court to exercise its appellate jurisdiction. The authority, therefore, given to the Supreme Court by the act establishing the judicial courts of the United States, to issue writs of mandamus to public officers, appears not to be warranted by the Constitution; and it becomes necessary to inquire whether a jurisdiction so conferred can be exercised. The question, whether an act repugnant to the Constitution can become the law of the land, is a question deeply interesting to the United States; but, happily, not of an intricacy proportioned to its interest. It seems only necessary to recognize certain principles, supposed to have been long and well established, to decide it. That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness is the basis on which the whole American fabric had been erected. The exercise of this original right is a very great exertion; nor can it, nor ought it, to be frequently repeated. The principles, therefore, so established, are deemed fundamental. And as the authority from which they proceed is supreme, and can seldom act, they are designed to be permanent. This original and supreme will organizes the government, and assigns to different departments their respective powers. It may either stop here, or establish certain limits not to be transcended by those departments. The government of the United States is of the latter description. The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the Constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested, that the Constitution controls any legislative act repugnant to it; or, that the legislature may alter the Constitution by an ordinary act. Between these alternatives there is no middle ground. The Constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it. If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law: if the latter part be true, then written constitutions are absurd attempts on the part of the people to limit a power in its own nature illimitable. Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently, the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void.

This theory is essentially attached to a written constitution, and is, consequently, to be considered by this court as one of the fundamental principles of our society. It is not therefore to be lost sight of in the further consideration of this subject. If an act of the legislature, repugnant to the Constitution, is void, does it, notwithstanding its invalidity, bind the courts, and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory; and would seem at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration. It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the Constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the Constitution; or conformably to the Constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If, then, the courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply. Those, then, who controvert the principle that the Constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the Constitution, and see only the law. This doctrine would subvert the very foundation of all written constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits and declaring that those limits may be passed at pleasure. That it thus reduces to nothing what we have deemed the greatest improvement on political institutions a written constitution would of itself be sufficient, in America, where written constitutions have been viewed with so much reverence, for rejecting the construction. But the peculiar expressions of the Constitution of the United States furnish additional arguments in favor of its rejection. The judicial power of the United States is extended to all cases arising under the Constitution.

Could it be the intention of those who gave this power to say that, in using it, the Constitution should not be looked into? That a case arising under the Constitution should be decided without examining the instrument under which it rises? This is too extravagant to be maintained. In some cases then, the Constitution must be looked into by the judges. And if they can open it at all, what part of it are they forbidden to read or to obey? There are many other parts of the Constitution which serve to illustrate this subject. It is declared that "no tax or duty shall be laid on articles exported from any state." Suppose a duty on the export of cotton, of tobacco, or of flour; and a suit instituted to recover it. Ought judgment to be rendered in such a case? Ought the judges to close their eyes on the Constitution, and see only the law? The Constitution declares that "no bill of attainder or ex post facto law shall be passed." If, however, such a bill should be passed and a person should be prosecuted under it; must the court condemn to death those victims who the Constitution endeavours to preserve? "No person," says the Constitution, "shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court." Here the language of the Constitution is addressed especially to the courts. It prescribes, directly for them, a rule of evidence not to be departed from. If the legislature should change that rule, and declare one witness, or a confession out of court, sufficient for conviction, must the constitutional principle yield to the legislative act? From these, and many other selections which might be made, it is apparent that the framers of the Constitution contemplated that instrument as a rule for the government of courts, as well as of the legislature. Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies in an especial manner to their conduct in their official character. How immoral to impose it on them, if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support? The oath of office, too, imposed by the legislature, is completely demonstrative of the legislative opinion on this subject. It is in these words: "I do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich; and that I will faithfully and impartially discharge all the duties incumbent on me as , according to the best of my abilities and understanding agreeably to the Constitution and laws of the United States."

Why does a judge swear to discharge his duties agreeably to the Constitution of the United States, if that Constitution forms no rule for his government? If it is closed upon him, and cannot be inspected by him? If such be the real state of things, this is worse than solemn mockery. To prescribe, or take this oath, becomes equally a crime. It is also not entirely unworthy of observation that, in declaring what shall be the supreme law of the land, the Constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall he made in pursuance of the Constitution, have that rank. Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the Constitution is void; and that courts, as well as other departments, are bound by that instrument. The rule must be Discharged.

Text Versio

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 178552 October 5, 2010

SOUTHERN HEMISPHERE ENGAGEMENT NETWORK, INC., on behalf of the SouthSouth Network (SSN) for Non-State Armed Group Engagement, and ATTY. SOLIMAN M. SANTOS, JR., Petitioners, vs. ANTI-TERRORISM COUNCIL, THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF FOREIGN AFFAIRS, THE SECRETARY OF NATIONAL DEFENSE, THE SECRETARY OF THE INTERIOR AND LOCAL GOVERNMENT, THE SECRETARY OF FINANCE, THE NATIONAL SECURITY ADVISER, THE CHIEF OF STAFF OF THE ARMED FORCES OF THE PHILIPPINES, AND THE CHIEF OF THE PHILIPPINE NATIONAL POLICE, Respondents. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 178554 KILUSANG MAYO UNO (KMU), represented by its Chairperson Elmer Labog, NATIONAL FEDERATION OF LABOR UNIONS-KILUSANG MAYO UNO (NAFLUKMU), represented by its National President Joselito V. Ustarez and Secretary General Antonio C. Pascual, and CENTER FOR TRADE UNION AND HUMAN RIGHTS, represented by its Executive Director Daisy Arago, Petitioners, vs. HON. EDUARDO ERMITA, in his capacity as Executive Secretary, NORBERTO GONZALES, in his capacity as Acting Secretary of National Defense, HON. RAUL GONZALES, in his capacity as Secretary of Justice, HON. RONALDO PUNO, in his capacity as Secretary of the Interior and Local Government, GEN. HERMOGENES ESPERON, in his capacity as AFP Chief of Staff, and DIRECTOR GENERAL OSCAR CALDERON, in his capacity as PNP Chief of Staff, Respondents. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 178581

BAGONG ALYANSANG MAKABAYAN (BAYAN), GENERAL ALLIANCE BINDING WOMEN FOR REFORMS, INTEGRITY, EQUALITY, LEADERSHIP AND ACTION (GABRIELA), KILUSANG MAGBUBUKID NG PILIPINAS (KMP), MOVEMENT OF CONCERNED CITIZENS FOR CIVIL LIBERTIES (MCCCL), CONFEDERATION FOR UNITY, RECOGNITION AND ADVANCEMENT OF GOVERNMENT EMPLOYEES (COURAGE), KALIPUNAN NG DAMAYANG MAHIHIRAP (KADAMAY), SOLIDARITY OF CAVITE WORKERS, LEAGUE OF FILIPINO STUDENTS (LFS), ANAKBAYAN, PAMBANSANG LAKAS NG KILUSANG MAMAMALAKAYA (PAMALAKAYA), ALLIANCE OF CONCERNED TEACHERS (ACT), MIGRANTE, HEALTH ALLIANCE FOR DEMOCRACY (HEAD), AGHAM, TEOFISTO GUINGONA, JR., DR. BIENVENIDO LUMBERA, RENATO CONSTANTINO, JR., SISTER MARY JOHN MANANSAN OSB, DEAN CONSUELO PAZ, ATTY. JOSEFINA LICHAUCO, COL. GERRY CUNANAN (ret.), CARLITOS SIGUION-REYNA, DR. CAROLINA PAGADUAN-ARAULLO, RENATO REYES, DANILO RAMOS, EMERENCIANA DE LESUS, RITA BAUA, REY CLARO CASAMBRE, Petitioners, vs. GLORIA MACAPAGAL-ARROYO, in her capacity as President and Commander-inChief, EXECUTIVE SECRETARY EDUARDO ERMITA, DEPARTMENT OF JUSTICE SECRETARY RAUL GONZALES, DEPARTMENT OF FOREIGN AFFAIRS SECRETARY ALBERTO ROMULO, DEPARTMENT OF NATIONAL DEFENSE ACTING SECRETARY NORBERTO GONZALES, DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT SECRETARY RONALDO PUNO. DEPARTMENT OF FINANCE SECRETARY MARGARITO TEVES, NATIONAL SECURITY ADVISER NORBERTO GONZALES, THE NATIONAL INTELLIGENCE COORDINATING AGENCY (NICA), THE NATIONAL BUREAU OF INVESTIGATION (NBI), THE BUREAU OF IMMIGRATION, THE OFFICE OF CIVIL DEFENSE, THE INTELLIGENCE SERVICE OF THE ARMED FORCES OF THE PHILIPPINES (ISAFP), THE ANTI-MONEY LAUNDERING COUNCIL (AMLC), THE PHILIPPINE CENTER ON TRANSNATIONAL CRIME, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE GEN. OSCAR CALDERON, THE PNP, including its intelligence and investigative elements, AFP CHIEF GEN. HERMOGENES ESPERON, Respondents. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 178890 KARAPATAN, ALLIANCE FOR THE ADVANCEMENT OF PEOPLE'S RIGHTS, represented herein by Dr. Edelina de la Paz, and representing the following organizations: HUSTISYA, represented by Evangeline Hernandez and also on her own behalf; DESAPARECIDOS, represented by Mary Guy Portajada and also on her own behalf, SAMAHAN NG MGA EX-DETAINEES LABAN SA DETENSYON AT PARA SA AMNESTIYA (SELDA), represented by Donato Continente and also on his own behalf, ECUMENICAL MOVEMENT FOR JUSTICE AND PEACE (EMJP), represented by Bishop Elmer M. Bolocon, UCCP, and PROMOTION OF CHURCH PEOPLE'S RESPONSE, represented by Fr. Gilbert Sabado, OCARM, Petitioners,

vs. GLORIA MACAPAGAL-ARROYO, in her capacity as President and Commander-inChief, EXECUTIVE SECRETARTY EDUARDO ERMITA, DEPARTMENT OF JUSTICE SECRETARY RAUL GONZALEZ, DEPARTMENT OF FOREIGN AFFAIRS SECRETARY ALBERTO ROMULO, DEPARTMENT OF NATIONAL DEFENSE ACTING SECRETARY NORBERTO GONZALES, DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT SECRETARY RONALDO PUNO, DEPARTMENT OF FINANCE SECRETARY MARGARITO TEVES, NATIONAL SECURITY ADVISER NORBERTO GONZALES, THE NATIONAL INTELLIGENCE COORDINATING AGENCY (NICA), THE NATIONAL BUREAU OF INVESTIGATION (NBI), THE BUREAU OF IMMIGRATION, THE OFFICE OF CIVIL DEFENSE, THE INTELLIGENCE SERVICE OF THE ARMED FORCES OF THE PHILIPPINES (ISAFP), THE ANTI-MONEY LAUNDERING COUNCIL (AMLC), THE PHILIPPINE CENTER ON TRANSNATIONAL CRIME, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE GEN. OSCAR CALDERON, THE PNP, including its intelligence and investigative elements, AFP CHIEF GEN. HERMOGENES ESPERON, Respondents. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 179157 THE INTEGRATED BAR OF THE PHILIPPINES (IBP), represented by Atty. Feliciano M. Bautista, COUNSELS FOR THE DEFENSE OF LIBERTY (CODAL), SEN. MA. ANA CONSUELO A.S. MADRIGAL and FORMER SENATORS SERGIO OSMEA III and WIGBERTO E. TAADA, Petitioners, vs. EXECUTIVE SECRETARY EDUARDO ERMITA AND THE MEMBERS OF THE ANTI-TERRORISM COUNCIL (ATC), Respondents. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 179461 BAGONG ALYANSANG MAKABAYAN-SOUTHERN TAGALOG (BAYAN-ST), GABRIELA-ST, KATIPUNAN NG MGA SAMAHYANG MAGSASAKA-TIMOG KATAGALUGAN (KASAMA-TK), MOVEMENT OF CONCERNED CITIZENS FOR CIVIL LIBERTIES (MCCCL), PEOPLES MARTYRS, ANAKBAYAN-ST, PAMALAKAYA-ST, CONFEDERATION FOR UNITY, RECOGNITION AND ADVANCEMENT OF GOVERNMENT EMPLOYEES (COURAGE-ST), PAGKAKAISA'T UGNAYAN NG MGA MAGBUBUKID SA LAGUNA (PUMALAG), SAMAHAN NG MGA MAMAMAYAN SA TABING RILES (SMTR-ST), LEAGUE OF FILIPINO STUDENTS (LFS), BAYAN MUNA-ST, KONGRESO NG MGA MAGBUBUKID PARA SA REPORMANG AGRARYO KOMPRA, BIGKIS AT LAKAS NG MGA KATUTUBO SA TIMOG KATAGALUGAN (BALATIK), SAMAHAN AT UGNAYAN NG MGA MAGSASAKANG KABABAIHAN SA TIMOG KATAGALUGAN (SUMAMAKA-TK), STARTER, LOSOS RURAL POOR ORGANIZATION FOR

PROGRESS & EQUALITY, CHRISTIAN NIO LAJARA, TEODORO REYES, FRANCESCA B. TOLENTINO, JANNETTE E. BARRIENTOS, OSCAR T. LAPIDA, JR., DELFIN DE CLARO, SALLY P. ASTRERA, ARNEL SEGUNE BELTRAN, Petitioners, vs. GLORIA MACAPAGAL-ARROYO, in her capacity as President and Commander-inChief, EXECUTIVE SECRETARY EDUARDO ERMITA, DEPARTMENT OF JUSTICE SECRETARY RAUL GONZALEZ, DEPARTMENT OF FOREIGN AFFAIRS SECRETARY ALBERTO ROMULO, DEPARTMENT OF NATIONAL DEFENSE ACTING SECRETARY NORBERTO GONZALES, DEPARTMENT OF INTERIOR AND LOCAL GOVERNMEN T SECRETARY RONALDO PUNO, DEPARTMENT OF FINCANCE SECRETARY MARGARITO TEVES, NATIONAL SECURITY ADVISER NORBERTO GONZALES, THE NATIONAL INTELLIGENCE COORDINATING AGENCY (NICA), THE NATIONAL BUREAU OF INVESTIGATION (NBI), THE BUREAU OF IMMIGRATION, THE OFFICE OF CIVIL DEFENSE, THE INTELLIGENCE SERVICE OF THE ARMED FORCES OF THE PHILIPPINES (ISAFP), THE ANTI-MONEY LAUNDERING COUNCIL (AMLC), THE PHILIPPINE CENTER ON TRANSNATIONAL CRIME, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE GEN. OSCAR CALDERON, THE PNP, including its intelligence and investigative elements, AFP CHIEF GEN. HERMOGENES ESPERON, Respondents. DECISION CARPIO MORALES, J.: Before the Court are six petitions challenging the constitutionality of Republic Act No. 9372 (RA 9372), "An Act to Secure the State and Protect our People from Terrorism," otherwise known as the Human Security Act of 2007,1 signed into law on March 6, 2007. Following the effectivity of RA 9372 on July 15, 2007,2 petitioner Southern Hemisphere Engagement Network, Inc., a non-government organization, and Atty. Soliman Santos, Jr., a concerned citizen, taxpayer and lawyer, filed a petition for certiorari and prohibition on July 16, 2007 docketed as G.R. No. 178552. On even date, petitioners Kilusang Mayo Uno (KMU), National Federation of Labor Unions-Kilusang Mayo Uno (NAFLU-KMU), and Center for Trade Union and Human Rights (CTUHR), represented by their respective officers3 who are also bringing the action in their capacity as citizens, filed a petition for certiorari and prohibition docketed as G.R. No. 178554. The following day, July 17, 2007, organizations Bagong Alyansang Makabayan (BAYAN), General Alliance Binding Women for Reforms, Integrity, Equality, Leadership and Action (GABRIELA), Kilusang Magbubukid ng Pilipinas (KMP), Movement of Concerned Citizens for Civil Liberties (MCCCL), Confederation for Unity, Recognition and Advancement of Government Employees (COURAGE), Kalipunan ng Damayang Mahihirap (KADAMAY), Solidarity of Cavite Workers (SCW), League of Filipino Students (LFS), Anakbayan, Pambansang Lakas ng Kilusang Mamamalakaya (PAMALAKAYA), Alliance of Concerned Teachers (ACT), Migrante, Health Alliance for Democracy (HEAD), and Agham, represented by their respective officers,4 and joined by concerned citizens and taxpayers Teofisto Guingona, Jr.,

Dr. Bienvenido Lumbera, Renato Constantino, Jr., Sister Mary John Manansan, OSB, Dean Consuelo Paz, Atty. Josefina Lichauco, Retired Col. Gerry Cunanan, Carlitos Siguion-Reyna, Dr. Carolina Pagaduan-Araullo, Renato Reyes, Danilo Ramos, Emerenciana de Jesus, Rita Baua and Rey Claro Casambre filed a petition for certiorari and prohibition docketed as G.R. No. 178581. On August 6, 2007, Karapatan and its alliance member organizations Hustisya, Desaparecidos, Samahan ng mga Ex-Detainees Laban sa Detensyon at para sa Amnestiya (SELDA), Ecumenical Movement for Justice and Peace (EMJP), and Promotion of Church Peoples Response (PCPR), which were represented by their respective officers5 who are also bringing action on their own behalf, filed a petition for certiorari and prohibition docketed as G.R. No. 178890. On August 29, 2007, the Integrated Bar of the Philippines (IBP), Counsels for the Defense of Liberty (CODAL),6 Senator Ma. Ana Consuelo A.S. Madrigal, Sergio Osmea III, and Wigberto E. Taada filed a petition for certiorari and prohibition docketed as G.R. No. 179157. Bagong Alyansang Makabayan-Southern Tagalog (BAYAN-ST), other regional chapters and organizations mostly based in the Southern Tagalog Region,7 and individuals8 followed suit by filing on September 19, 2007 a petition for certiorari and prohibition docketed as G.R. No. 179461 that replicates the allegations raised in the BAYAN petition in G.R. No. 178581. Impleaded as respondents in the various petitions are the Anti-Terrorism Council9 composed of, at the time of the filing of the petitions, Executive Secretary Eduardo Ermita as Chairperson, Justice Secretary Raul Gonzales as Vice Chairperson, and Foreign Affairs Secretary Alberto Romulo, Acting Defense Secretary and National Security Adviser Norberto Gonzales, Interior and Local Government Secretary Ronaldo Puno, and Finance Secretary Margarito Teves as members. All the petitions, except that of the IBP, also impleaded Armed Forces of the Philippines (AFP) Chief of Staff Gen. Hermogenes Esperon and Philippine National Police (PNP) Chief Gen. Oscar Calderon. The Karapatan, BAYAN and BAYAN-ST petitions likewise impleaded President Gloria Macapagal-Arroyo and the support agencies for the Anti-Terrorism Council like the National Intelligence Coordinating Agency, National Bureau of Investigation, Bureau of Immigration, Office of Civil Defense, Intelligence Service of the AFP, Anti-Money Laundering Center, Philippine Center on Transnational Crime, and the PNP intelligence and investigative elements. The petitions fail. Petitioners resort to certiorari is improper Preliminarily, certiorari does not lie against respondents who do not exercise judicial or quasijudicial functions. Section 1, Rule 65 of the Rules of Court is clear: Section 1. Petition for certiorari.When any tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, nor any plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby

may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting such incidental reliefs as law and justice may require. (Emphasis and underscoring supplied) Parenthetically, petitioners do not even allege with any modicum of particularity how respondents acted without or in excess of their respective jurisdictions, or with grave abuse of discretion amounting to lack or excess of jurisdiction. The impropriety of certiorari as a remedy aside, the petitions fail just the same. In constitutional litigations, the power of judicial review is limited by four exacting requisites, viz: (a) there must be an actual case or controversy; (b) petitioners must possess locus standi; (c) the question of constitutionality must be raised at the earliest opportunity; and (d) the issue of constitutionality must be the lis mota of the case.10 In the present case, the dismal absence of the first two requisites, which are the most essential, renders the discussion of the last two superfluous. Petitioners lack locus standi Locus standi or legal standing requires 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.11 Anak Mindanao Party-List Group v. The Executive Secretary12 summarized the rule on locus standi, thus: Locus standi or legal standing has been defined as a personal and substantial interest in a case such that the party has sustained or will sustain direct injury as a result of the governmental act that is being challenged. The gist of the question on standing is whether a party alleges such personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court depends for illumination of difficult constitutional questions. [A] party who assails the constitutionality of a statute must have a direct and personal interest. It must show not only that the law or any governmental act is invalid, but also that it sustained or is in immediate danger of sustaining some direct injury as a result of its enforcement, and not merely that it suffers thereby in some indefinite way. It must show that it has been or is about to be denied some right or privilege to which it is lawfully entitled or that it is about to be subjected to some burdens or penalties by reason of the statute or act complained of. For a concerned party to be allowed to raise a constitutional question, it must show that (1) it has personally suffered some actual or threatened injury as a result of the allegedly illegal conduct of the government, (2) the injury is fairly traceable to the challenged action, and (3) the injury is likely to be redressed by a favorable action. (emphasis and underscoring supplied.)

Petitioner-organizations assert locus standi on the basis of being suspected "communist fronts" by the government, especially the military; whereas individual petitioners invariably invoke the "transcendental importance" doctrine and their status as citizens and taxpayers. While Chavez v. PCGG13 holds that transcendental public importance dispenses with the requirement that petitioner has experienced or is in actual danger of suffering direct and personal injury, cases involving the constitutionality of penal legislation belong to an altogether different genus of constitutional litigation. Compelling State and societal interests in the proscription of harmful conduct, as will later be elucidated, necessitate a closer judicial scrutiny of locus standi. Petitioners have not presented any personal stake in the outcome of the controversy. None of them faces any charge under RA 9372. KARAPATAN, Hustisya, Desaparecidos, SELDA, EMJP and PCR, petitioners in G.R. No. 178890, allege that they have been subjected to "close security surveillance by state security forces," their members followed by "suspicious persons" and "vehicles with dark windshields," and their offices monitored by "men with military build." They likewise claim that they have been branded as "enemies of the [S]tate."14 Even conceding such gratuitous allegations, the Office of the Solicitor General (OSG) correctly points out that petitioners have yet to show any connection between the purported "surveillance" and the implementation of RA 9372. BAYAN, GABRIELA, KMP, MCCCL, COURAGE, KADAMAY, SCW, LFS, Anakbayan, PAMALAKAYA, ACT, Migrante, HEAD and Agham, petitioner-organizations in G.R. No. 178581, would like the Court to take judicial notice of respondents alleged action of tagging them as militant organizations fronting for the Communist Party of the Philippines (CPP) and its armed wing, the National Peoples Army (NPA). The tagging, according to petitioners, is tantamount to the effects of proscription without following the procedure under the law.15 The petition of BAYAN-ST, et al. in G.R. No. 179461 pleads the same allegations. The Court cannot take judicial notice of the alleged "tagging" of petitioners. Generally speaking, matters of judicial notice have three material requisites: (1) the matter must be one of common and general knowledge; (2) it must be well and authoritatively settled and not doubtful or uncertain; and (3) it must be known to be within the limits of the jurisdiction of the court. The principal guide in determining what facts may be assumed to be judicially known is that of notoriety. Hence, it can be said that judicial notice is limited to facts evidenced by public records and facts of general notoriety. Moreover, a judicially noticed fact must be one not subject to a reasonable dispute in that it is either: (1) generally known within the territorial jurisdiction of the trial court; or (2) capable of accurate and ready determination by resorting to sources whose accuracy cannot reasonably be questionable. Things of "common knowledge," of which courts take judicial matters coming to the knowledge of men generally in the course of the ordinary experiences of life, or they may be matters which are generally accepted by mankind as true and are capable of ready and unquestioned

demonstration. Thus, facts which are universally known, and which may be found in encyclopedias, dictionaries or other publications, are judicially noticed, provided, they are of such universal notoriety and so generally understood that they may be regarded as forming part of the common knowledge of every person. As the common knowledge of man ranges far and wide, a wide variety of particular facts have been judicially noticed as being matters of common knowledge. But a court cannot take judicial notice of any fact which, in part, is dependent on the existence or non-existence of a fact of which the court has no constructive knowledge.16 (emphasis and underscoring supplied.) No ground was properly established by petitioners for the taking of judicial notice. Petitioners apprehension is insufficient to substantiate their plea. That no specific charge or proscription under RA 9372 has been filed against them, three years after its effectivity, belies any claim of imminence of their perceived threat emanating from the so-called tagging. The same is true with petitioners KMU, NAFLU and CTUHR in G.R. No. 178554, who merely harp as well on their supposed "link" to the CPP and NPA. They fail to particularize how the implementation of specific provisions of RA 9372 would result in direct injury to their organization and members. While in our jurisdiction there is still no judicially declared terrorist organization, the United States of America17 (US) and the European Union18 (EU) have both classified the CPP, NPA and Abu Sayyaf Group as foreign terrorist organizations. The Court takes note of the joint statement of Executive Secretary Eduardo Ermita and Justice Secretary Raul Gonzales that the Arroyo Administration would adopt the US and EU classification of the CPP and NPA as terrorist organizations.19 Such statement notwithstanding, there is yet to be filed before the courts an application to declare the CPP and NPA organizations as domestic terrorist or outlawed organizations under RA 9372. Again, RA 9372 has been in effect for three years now. From July 2007 up to the present, petitioner-organizations have conducted their activities fully and freely without any threat of, much less an actual, prosecution or proscription under RA 9372. Parenthetically, the Fourteenth Congress, in a resolution initiated by Party-list Representatives Saturnino Ocampo, Teodoro Casio, Rafael Mariano and Luzviminda Ilagan,20 urged the government to resume peace negotiations with the NDF by removing the impediments thereto, one of which is the adoption of designation of the CPP and NPA by the US and EU as foreign terrorist organizations. Considering the policy statement of the Aquino Administration21 of resuming peace talks with the NDF, the government is not imminently disposed to ask for the judicial proscription of the CPP-NPA consortium and its allied organizations. More important, there are other parties not before the Court with direct and specific interests in the questions being raised.22 Of recent development is the filing of the first case for proscription under Section 1723 of RA 9372 by the Department of Justice before the Basilan Regional Trial Court against the Abu Sayyaf Group.24 Petitioner-organizations do not in the least allege any link to the Abu Sayyaf Group. Some petitioners attempt, in vain though, to show the imminence of a prosecution under RA 9372 by alluding to past rebellion charges against them.

In Ladlad v. Velasco,25 the Court ordered the dismissal of rebellion charges filed in 2006 against then Party-List Representatives Crispin Beltran and Rafael Mariano of Anakpawis, Liza Maza of GABRIELA, and Joel Virador, Teodoro Casio and Saturnino Ocampo of Bayan Muna. Also named in the dismissed rebellion charges were petitioners Rey Claro Casambre, Carolina Pagaduan-Araullo, Renato Reyes, Rita Baua, Emerencia de Jesus and Danilo Ramos; and accused of being front organizations for the Communist movement were petitioner-organizations KMU, BAYAN, GABRIELA, PAMALAKAYA, KMP, KADAMAY, LFS and COURAGE. 26 The dismissed rebellion charges, however, do not save the day for petitioners. For one, those charges were filed in 2006, prior to the enactment of RA 9372, and dismissed by this Court. For another, rebellion is defined and punished under the Revised Penal Code. Prosecution for rebellion is not made more imminent by the enactment of RA 9372, nor does the enactment thereof make it easier to charge a person with rebellion, its elements not having been altered. Conversely, previously filed but dismissed rebellion charges bear no relation to prospective charges under RA 9372. It cannot be overemphasized that three years after the enactment of RA 9372, none of petitioners has been charged. Petitioners IBP and CODAL in G.R. No. 179157 base their claim of locus standi on their sworn duty to uphold the Constitution. The IBP zeroes in on Section 21 of RA 9372 directing it to render assistance to those arrested or detained under the law. The mere invocation of the duty to preserve the rule of law does not, however, suffice to clothe the IBP or any of its members with standing.27 The IBP failed to sufficiently demonstrate how its mandate under the assailed statute revolts against its constitutional rights and duties. Moreover, both the IBP and CODAL have not pointed to even a single arrest or detention effected under RA 9372. Former Senator Ma. Ana Consuelo Madrigal, who claims to have been the subject of "political surveillance," also lacks locus standi. Prescinding from the veracity, let alone legal basis, of the claim of "political surveillance," the Court finds that she has not shown even the slightest threat of being charged under RA 9372. Similarly lacking in locus standi are former Senator Wigberto Taada and Senator Sergio Osmea III, who cite their being respectively a human rights advocate and an oppositor to the passage of RA 9372. Outside these gratuitous statements, no concrete injury to them has been pinpointed. Petitioners Southern Hemisphere Engagement Network and Atty. Soliman Santos Jr. in G.R. No. 178552 also conveniently state that the issues they raise are of transcendental importance, "which must be settled early" and are of "far-reaching implications," without mention of any specific provision of RA 9372 under which they have been charged, or may be charged. Mere invocation of human rights advocacy has nowhere been held sufficient to clothe litigants with locus standi. Petitioners must show an actual, or immediate danger of sustaining, direct injury as a result of the laws enforcement. To rule otherwise would be to corrupt the settled doctrine of locus standi, as every worthy cause is an interest shared by the general public.

Neither can locus standi be conferred upon individual petitioners as taxpayers and citizens. A taxpayer suit is proper only when there is an exercise of the spending or taxing power of Congress,28 whereas citizen standing must rest on direct and personal interest in the proceeding.29 RA 9372 is a penal statute and does not even provide for any appropriation from Congress for its implementation, while none of the individual petitioner-citizens has alleged any direct and personal interest in the implementation of the law. It bears to stress that generalized interests, albeit accompanied by the assertion of a public right, do not establish locus standi. Evidence of a direct and personal interest is key. Petitioners fail to present an actual case or controversy By constitutional fiat, judicial power operates only when there is an actual case or controversy. Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law. Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.30 (emphasis and underscoring supplied.) As early as Angara v. Electoral Commission,31 the Court ruled that the power of judicial review is limited to actual cases or controversies to be exercised after full opportunity of argument by the parties. Any attempt at abstraction could only lead to dialectics and barren legal questions and to sterile conclusions unrelated to actualities. An actual case or controversy means an existing case or controversy that is appropriate or ripe for determination, not conjectural or anticipatory, lest the decision of the court would amount to an advisory opinion.32 Information Technology Foundation of the Philippines v. COMELEC33 cannot be more emphatic: [C]ourts do not sit to adjudicate mere academic questions to satisfy scholarly interest, however intellectually challenging. The controversy must be justiciabledefinite and concrete, touching on the legal relations of parties having adverse legal interests. In other words, the pleadings must show an active antagonistic assertion of a legal right, on the one hand, and a denial thereof on the other hand; that is, it must concern a real and not merely a theoretical question or issue. There ought to be an actual and substantial controversy admitting of specific relief through a decree conclusive in nature, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts. (Emphasis and underscoring supplied) Thus, a petition to declare unconstitutional a law converting the Municipality of Makati into a Highly Urbanized City was held to be premature as it was tacked on uncertain, contingent

events.34 Similarly, a petition that fails to allege that an application for a license to operate a radio or television station has been denied or granted by the authorities does not present a justiciable controversy, and merely wheedles the Court to rule on a hypothetical problem.35 The Court dismissed the petition in Philippine Press Institute v. Commission on Elections36 for failure to cite any specific affirmative action of the Commission on Elections to implement the assailed resolution. It refused, in Abbas v. Commission on Elections,37 to rule on the religious freedom claim of the therein petitioners based merely on a perceived potential conflict between the provisions of the Muslim Code and those of the national law, there being no actual controversy between real litigants. The list of cases denying claims resting on purely hypothetical or anticipatory grounds goes on ad infinitum. The Court is not unaware that a reasonable certainty of the occurrence of a perceived threat to any constitutional interest suffices to provide a basis for mounting a constitutional challenge. This, however, is qualified by the requirement that there must be sufficient facts to enable the Court to intelligently adjudicate the issues.38 Very recently, the US Supreme Court, in Holder v. Humanitarian Law Project,39 allowed the preenforcement review of a criminal statute, challenged on vagueness grounds, since plaintiffs faced a "credible threat of prosecution" and "should not be required to await and undergo a criminal prosecution as the sole means of seeking relief."40 The plaintiffs therein filed an action before a federal court to assail the constitutionality of the material support statute, 18 U.S.C. 2339B (a) (1),41 proscribing the provision of material support to organizations declared by the Secretary of State as foreign terrorist organizations. They claimed that they intended to provide support for the humanitarian and political activities of two such organizations. Prevailing American jurisprudence allows an adjudication on the merits when an anticipatory petition clearly shows that the challenged prohibition forbids the conduct or activity that a petitioner seeks to do, as there would then be a justiciable controversy.42 Unlike the plaintiffs in Holder, however, herein petitioners have failed to show that the challenged provisions of RA 9372 forbid constitutionally protected conduct or activity that they seek to do. No demonstrable threat has been established, much less a real and existing one. Petitioners obscure allegations of sporadic "surveillance" and supposedly being tagged as "communist fronts" in no way approximate a credible threat of prosecution. From these allegations, the Court is being lured to render an advisory opinion, which is not its function.43 Without any justiciable controversy, the petitions have become pleas for declaratory relief, over which the Court has no original jurisdiction. Then again, declaratory actions characterized by "double contingency," where both the activity the petitioners intend to undertake and the anticipated reaction to it of a public official are merely theorized, lie beyond judicial review for lack of ripeness.44

The possibility of abuse in the implementation of RA 9372 does not avail to take the present petitions out of the realm of the surreal and merely imagined. Such possibility is not peculiar to RA 9372 since the exercise of any power granted by law may be abused.45 Allegations of abuse must be anchored on real events before courts may step in to settle actual controversies involving rights which are legally demandable and enforceable. A facial invalidation of a statute is allowed only in free speech cases, wherein certain rules of constitutional litigation are rightly excepted Petitioners assail for being intrinsically vague and impermissibly broad the definition of the crime of terrorism46 under RA 9372 in that terms like "widespread and extraordinary fear and panic among the populace" and "coerce the government to give in to an unlawful demand" are nebulous, leaving law enforcement agencies with no standard to measure the prohibited acts. Respondents, through the OSG, counter that the doctrines of void-for-vagueness and overbreadth find no application in the present case since these doctrines apply only to free speech cases; and that RA 9372 regulates conduct, not speech. For a jurisprudentially guided understanding of these doctrines, it is imperative to outline the schools of thought on whether the void-for-vagueness and overbreadth doctrines are equally applicable grounds to assail a penal statute. Respondents interpret recent jurisprudence as slanting toward the idea of limiting the application of the two doctrines to free speech cases. They particularly cite Romualdez v. Hon. Sandiganbayan47 and Estrada v. Sandiganbayan.48 The Court clarifies. At issue in Romualdez v. Sandiganbayan was whether the word "intervene" in Section 549 of the Anti-Graft and Corrupt Practices Act was intrinsically vague and impermissibly broad. The Court stated that "the overbreadth and the vagueness doctrines have special application only to free-speech cases," and are "not appropriate for testing the validity of penal statutes."50 It added that, at any rate, the challenged provision, under which the therein petitioner was charged, is not vague.51 While in the subsequent case of Romualdez v. Commission on Elections,52 the Court stated that a facial invalidation of criminal statutes is not appropriate, it nonetheless proceeded to conduct a vagueness analysis, and concluded that the therein subject election offense53 under the Voters Registration Act of 1996, with which the therein petitioners were charged, is couched in precise language.54 The two Romualdez cases rely heavily on the Separate Opinion55 of Justice Vicente V. Mendoza in the Estrada case, where the Court found the Anti-Plunder Law (Republic Act No. 7080) clear and free from ambiguity respecting the definition of the crime of plunder.

The position taken by Justice Mendoza in Estrada relates these two doctrines to the concept of a "facial" invalidation as opposed to an "as-applied" challenge. He basically postulated that allegations that a penal statute is vague and overbroad do not justify a facial review of its validity. The pertinent portion of the Concurring Opinion of Justice Mendoza, which was quoted at length in the main Estrada decision, reads: A facial challenge is allowed to be made to a vague statute and to one which is overbroad because of possible "chilling effect" upon protected speech. The theory is that "[w]hen statutes regulate or proscribe speech and no readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution, the transcendent value to all society of constitutionally protected expression is deemed to justify allowing attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with narrow specificity." The possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that the protected speech of others may be deterred and perceived grievances left to fester because of possible inhibitory effects of overly broad statutes. This rationale does not apply to penal statutes. Criminal statutes have general in terrorem effect resulting from their very existence, and, if facial challenge is allowed for this reason alone, the State may well be prevented from enacting laws against socially harmful conduct. In the area of criminal law, the law cannot take chances as in the area of free speech. The overbreadth and vagueness doctrines then have special application only to free speech cases. They are inapt for testing the validity of penal statutes. As the U.S. Supreme Court put it, in an opinion by Chief Justice Rehnquist, "we have not recognized an 'overbreadth' doctrine outside the limited context of the First Amendment." In Broadrick v. Oklahoma, the Court ruled that "claims of facial overbreadth have been entertained in cases involving statutes which, by their terms, seek to regulate only spoken words" and, again, that "overbreadth claims, if entertained at all, have been curtailed when invoked against ordinary criminal laws that are sought to be applied to protected conduct." For this reason, it has been held that "a facial challenge to a legislative act is the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid." As for the vagueness doctrine, it is said that a litigant may challenge a statute on its face only if it is vague in all its possible applications. "A plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others." In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools developed for testing "on their faces" statutes in free speech cases or, as they are called in American law, First Amendment cases. They cannot be made to do service when what is involved is a criminal statute. With respect to such statute, the established rule is that "one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional." As has been pointed out, "vagueness challenges in the First Amendment context, like overbreadth challenges typically produce facial invalidation, while statutes found vague as a matter of due process typically are invalidated [only] 'as applied' to a particular

defendant." Consequently, there is no basis for petitioner's claim that this Court review the AntiPlunder Law on its face and in its entirety. Indeed, "on its face" invalidation of statutes results in striking them down entirely on the ground that they might be applied to parties not before the Court whose activities are constitutionally protected. It constitutes a departure from the case and controversy requirement of the Constitution and permits decisions to be made without concrete factual settings and in sterile abstract contexts. But, as the U.S. Supreme Court pointed out in Younger v. Harris [T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of these deficiencies before the statute is put into effect, is rarely if ever an appropriate task for the judiciary. The combination of the relative remoteness of the controversy, the impact on the legislative process of the relief sought, and above all the speculative and amorphous nature of the required line-by-line analysis of detailed statutes, . . . ordinarily results in a kind of case that is wholly unsatisfactory for deciding constitutional questions, whichever way they might be decided. For these reasons, "on its face" invalidation of statutes has been described as "manifestly strong medicine," to be employed "sparingly and only as a last resort," and is generally disfavored. In determining the constitutionality of a statute, therefore, its provisions which are alleged to have been violated in a case must be examined in the light of the conduct with which the defendant is charged.56 (Underscoring supplied.) The confusion apparently stems from the interlocking relation of the overbreadth and vagueness doctrines as grounds for a facial or as-applied challenge against a penal statute (under a claim of violation of due process of law) or a speech regulation (under a claim of abridgement of the freedom of speech and cognate rights). To be sure, the doctrine of vagueness and the doctrine of overbreadth do not operate on the same plane. A statute or act suffers from the defect of vagueness when it lacks comprehensible standards that men of common intelligence must necessarily guess at its meaning and differ as to its application. It is repugnant to the Constitution in two respects: (1) it violates due process for failure to accord persons, especially the parties targeted by it, fair notice of the conduct to avoid; and (2) it leaves law enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the Government muscle.57 The overbreadth doctrine, meanwhile, decrees that a governmental purpose to control or prevent activities constitutionally subject to state regulations may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.58 As distinguished from the vagueness doctrine, the overbreadth doctrine assumes that individuals will understand what a statute prohibits and will accordingly refrain from that behavior, even though some of it is protected.59 A "facial" challenge is likewise different from an "as-applied" challenge.

Distinguished from an as-applied challenge which considers only extant facts affecting real litigants, a facial invalidation is an examination of the entire law, pinpointing its flaws and defects, not only on the basis of its actual operation to the parties, but also on the assumption or prediction that its very existence may cause others not before the court to refrain from constitutionally protected speech or activities.60 Justice Mendoza accurately phrased the subtitle61 in his concurring opinion that the vagueness and overbreadth doctrines, as grounds for a facial challenge, are not applicable to penal laws. A litigant cannot thus successfully mount a facial challenge against a criminal statute on either vagueness or overbreadth grounds. The allowance of a facial challenge in free speech cases is justified by the aim to avert the "chilling effect" on protected speech, the exercise of which should not at all times be abridged.62 As reflected earlier, this rationale is inapplicable to plain penal statutes that generally bear an "in terrorem effect" in deterring socially harmful conduct. In fact, the legislature may even forbid and penalize acts formerly considered innocent and lawful, so long as it refrains from diminishing or dissuading the exercise of constitutionally protected rights.63 The Court reiterated that there are "critical limitations by which a criminal statute may be challenged" and "underscored that an on-its-face invalidation of penal statutes x x x may not be allowed."64 [T]he rule established in our jurisdiction is, only statutes on free speech, religious freedom, and other fundamental rights may be facially challenged. Under no case may ordinary penal statutes be subjected to a facial challenge. The rationale is obvious. If a facial challenge to a penal statute is permitted, the prosecution of crimes may be hampered. No prosecution would be possible. A strong criticism against employing a facial challenge in the case of penal statutes, if the same is allowed, would effectively go against the grain of the doctrinal requirement of an existing and concrete controversy before judicial power may be appropriately exercised. A facial challenge against a penal statute is, at best, amorphous and speculative. It would, essentially, force the court to consider third parties who are not before it. As I have said in my opposition to the allowance of a facial challenge to attack penal statutes, such a test will impair the States ability to deal with crime. If warranted, there would be nothing that can hinder an accused from defeating the States power to prosecute on a mere showing that, as applied to third parties, the penal statute is vague or overbroad, notwithstanding that the law is clear as applied to him.65 (Emphasis and underscoring supplied) It is settled, on the other hand, that the application of the overbreadth doctrine is limited to a facial kind of challenge and, owing to the given rationale of a facial challenge, applicable only to free speech cases. By its nature, the overbreadth doctrine has to necessarily apply a facial type of invalidation in order to plot areas of protected speech, inevitably almost always under situations not before the court, that are impermissibly swept by the substantially overbroad regulation. Otherwise stated, a statute cannot be properly analyzed for being substantially overbroad if the court confines itself only to facts as applied to the litigants.

The most distinctive feature of the overbreadth technique is that it marks an exception to some of the usual rules of constitutional litigation. Ordinarily, a particular litigant claims that a statute is unconstitutional as applied to him or her; if the litigant prevails, the courts carve away the unconstitutional aspects of the law by invalidating its improper applications on a case to case basis. Moreover, challengers to a law are not permitted to raise the rights of third parties and can only assert their own interests. In overbreadth analysis, those rules give way; challenges are permitted to raise the rights of third parties; and the court invalidates the entire statute "on its face," not merely "as applied for" so that the overbroad law becomes unenforceable until a properly authorized court construes it more narrowly. The factor that motivates courts to depart from the normal adjudicatory rules is the concern with the "chilling;" deterrent effect of the overbroad statute on third parties not courageous enough to bring suit. The Court assumes that an overbroad laws "very existence may cause others not before the court to refrain from constitutionally protected speech or expression." An overbreadth ruling is designed to remove that deterrent effect on the speech of those third parties.66 (Emphasis in the original omitted; underscoring supplied.) In restricting the overbreadth doctrine to free speech claims, the Court, in at least two cases,67 observed that the US Supreme Court has not recognized an overbreadth doctrine outside the limited context of the First Amendment,68 and that claims of facial overbreadth have been entertained in cases involving statutes which, by their terms, seek to regulate only spoken words.69 In Virginia v. Hicks,70 it was held that rarely, if ever, will an overbreadth challenge succeed against a law or regulation that is not specifically addressed to speech or speech-related conduct. Attacks on overly broad statutes are justified by the "transcendent value to all society of constitutionally protected expression."71 Since a penal statute may only be assailed for being vague as applied to petitioners, a limited vagueness analysis of the definition of "terrorism" in RA 9372 is legally impermissible absent an actual or imminent charge against them While Estrada did not apply the overbreadth doctrine, it did not preclude the operation of the vagueness test on the Anti-Plunder Law as applied to the therein petitioner, finding, however, that there was no basis to review the law "on its face and in its entirety."72 It stressed that "statutes found vague as a matter of due process typically are invalidated only 'as applied' to a particular defendant."73 American jurisprudence74 instructs that "vagueness challenges that do not involve the First Amendment must be examined in light of the specific facts of the case at hand and not with regard to the statute's facial validity." For more than 125 years, the US Supreme Court has evaluated defendants claims that criminal statutes are unconstitutionally vague, developing a doctrine hailed as "among the most important guarantees of liberty under law."75 In this jurisdiction, the void-for-vagueness doctrine asserted under the due process clause has been utilized in examining the constitutionality of criminal statutes. In at least three cases,76 the Court brought the doctrine into play in analyzing an ordinance penalizing the non-payment of

municipal tax on fishponds, the crime of illegal recruitment punishable under Article 132(b) of the Labor Code, and the vagrancy provision under Article 202 (2) of the Revised Penal Code. Notably, the petitioners in these three cases, similar to those in the two Romualdez and Estrada cases, were actually charged with the therein assailed penal statute, unlike in the present case. There is no merit in the claim that RA 9372 regulates speech so as to permit a facial analysis of its validity From the definition of the crime of terrorism in the earlier cited Section 3 of RA 9372, the following elements may be culled: (1) the offender commits an act punishable under any of the cited provisions of the Revised Penal Code, or under any of the enumerated special penal laws; (2) the commission of the predicate crime sows and creates a condition of widespread and extraordinary fear and panic among the populace; and (3) the offender is actuated by the desire to coerce the government to give in to an unlawful demand. In insisting on a facial challenge on the invocation that the law penalizes speech, petitioners contend that the element of "unlawful demand" in the definition of terrorism77 must necessarily be transmitted through some form of expression protected by the free speech clause. The argument does not persuade. What the law seeks to penalize is conduct, not speech. Before a charge for terrorism may be filed under RA 9372, there must first be a predicate crime actually committed to trigger the operation of the key qualifying phrases in the other elements of the crime, including the coercion of the government to accede to an "unlawful demand." Given the presence of the first element, any attempt at singling out or highlighting the communicative component of the prohibition cannot recategorize the unprotected conduct into a protected speech. Petitioners notion on the transmission of message is entirely inaccurate, as it unduly focuses on just one particle of an element of the crime. Almost every commission of a crime entails some mincing of words on the part of the offender like in declaring to launch overt criminal acts against a victim, in haggling on the amount of ransom or conditions, or in negotiating a deceitful transaction. An analogy in one U.S. case78 illustrated that the fact that the prohibition on discrimination in hiring on the basis of race will require an employer to take down a sign reading "White Applicants Only" hardly means that the law should be analyzed as one regulating speech rather than conduct. Utterances not elemental but inevitably incidental to the doing of the criminal conduct alter neither the intent of the law to punish socially harmful conduct nor the essence of the whole act as conduct and not speech. This holds true a fortiori in the present case where the expression figures only as an inevitable incident of making the element of coercion perceptible. [I]t is true that the agreements and course of conduct here were as in most instances brought about through speaking or writing. But it has never been deemed an abridgement of freedom of speech or press to make a course of conduct illegal merely because the conduct was, in part, initiated, evidenced, or carried out by means of language, either spoken, written, or printed. Such

an expansive interpretation of the constitutional guaranties of speech and press would make it practically impossible ever to enforce laws against agreements in restraint of trade as well as many other agreements and conspiracies deemed injurious to society.79 (italics and underscoring supplied) Certain kinds of speech have been treated as unprotected conduct, because they merely evidence a prohibited conduct.80 Since speech is not involved here, the Court cannot heed the call for a facial analysis.1avvphi1 IN FINE, Estrada and the other cited authorities engaged in a vagueness analysis of the therein subject penal statute as applied to the therein petitioners inasmuch as they were actually charged with the pertinent crimes challenged on vagueness grounds. The Court in said cases, however, found no basis to review the assailed penal statute on its face and in its entirety. In Holder, on the other hand, the US Supreme Court allowed the pre-enforcement review of a criminal statute, challenged on vagueness grounds, since the therein plaintiffs faced a "credible threat of prosecution" and "should not be required to await and undergo a criminal prosecution as the sole means of seeking relief." As earlier reflected, petitioners have established neither an actual charge nor a credible threat of prosecution under RA 9372. Even a limited vagueness analysis of the assailed definition of "terrorism" is thus legally impermissible. The Court reminds litigants that judicial power neither contemplates speculative counseling on a statutes future effect on hypothetical scenarios nor allows the courts to be used as an extension of a failed legislative lobbying in Congress. WHEREFORE, the petitions are DISMISSED. SO ORDERED. CONCHITA CARPIO MORALES Associate Justice WE CONCUR:

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 92024 November 9, 1990 CONGRESSMAN ENRIQUE T. GARCIA (Second District of Bataan), petitioner, vs. THE BOARD OF INVESTMENTS, THE DEPARTMENT OF TRADE AND INDUSTRY, LUZON PETROCHEMICAL CORPORATION, and PILIPINAS SHELL CORPORATION, respondents. Abraham C. La Vina for petitioner. Sycip, Salazar, Hernandez & Gatmaitan for Luzon Petrochemical Corporation. Romulo, Mabanta, Buenaventura, Sayoc & De los Angeles for Pilipinas Shell Petroleum Corporation.

GUTIERREZ, JR., J.: This is a petition to annul and set aside the decision of the Board of Investments (BOI)/Department of Trade and Industry (DTI) approving the transfer of the site of the proposed petrochemical plant from Bataan to Batangas and the shift of feedstock for that plant from naphtha only to naphtha and/or liquefied petroleum gas (LPG). This petition is a sequel to the petition in G.R. No. 88637 entitled "Congressman Enrique T. Garcia v. the Board of Investments", September 7, 1989, where this Court issued a decision, ordering the BOI as follows:
WHEREFORE, the petition for certiorari is granted. The Board of Investments is ordered: (1) to publish the amended application for registration of the Bataan Petrochemical Corporation, (2) to allow the petitioner to have access to its records on the original and amended applications for registration, as a petrochemical manufacturer, of the respondent Bataan Petrochemical Corporation, excluding, however, privileged papers containing its trade secrets and other business and financial information, and (3) to set for hearing the petitioner's opposition to the amended application in order that he may present at such hearing all the evidence in his possession in support of his opposition to the transfer of the site of the BPC petrochemical plant to Batangas province. The hearing shall not exceed a period of ten (10) days from the date fixed by the BOI, notice of which should be served by personal service to the petitioner through counsel, at least three (3) days in advance. The hearings may be held from day to day for a period of ten (10) days without postponements. The petition for a writ of prohibition or preliminary injunction is denied. No costs. (Rollo, pages 450-451)

However, acting on the petitioner's motion for partial reconsideration asking that we rule on the import of P.D. Nos. 949 and 1803 and on the foreign investor's claim of right of final choice of plant site, in the light of the provisions of the Constitution and the Omnibus Investments Code of 1987, this Court on October 24, 1989, made the observation that P.D. Nos. 949 and 1803 "do not provide that the Limay site should be the only petrochemical zone in the country, nor prohibit the establishment of a petrochemical plant elsewhere in the country, that the establishment of a petrochemical plant in Batangas does not violate P.D. No. 949 and P.D. No. 1803. Our resolution skirted the issue of whether the investor given the initial inducements and other circumstances surrounding its first choice of plant site may change it simply because it has the final choice on the matter. The Court merely ruled that the petitioner appears to have lost interest in the case by his failure to appear at the hearing that was set by the BOI after receipt of the decision, so he may be deemed to have waived the fruit of the judgment. On this ground, the motion for partial reconsideration was denied. A motion for reconsideration of said resolution was filed by the petitioner asking that we resolve the basic issue of whether or not the foreign investor has the right of final choice of plant site; that the non-attendance of the petitioner at the hearing was because the decision was not yet final and executory; and that the petitioner had not therefor waived the right to a hearing before the BOI. In the Court's resolution dated January 17, 1990, we stated:
Does the investor have a "right of final choice" of plant site? Neither under the 1987 Constitution nor in the Omnibus Investments Code is there such a 'right of final choice.' In the first place, the investor's choice is subject to processing and approval or disapproval by the BOI (Art. 7, Chapter II, Omnibus Investments Code). By submitting its application and amended application to the BOI for approval, the investor recognizes the sovereign prerogative of our Government, through the BOI, to approve or disapprove the same after determining whether its proposed project will be feasible, desirable and beneficial to our country. By asking that his opposition to the LPC's amended application be heard by the BOI, the petitioner likewise acknowledges that the BOI, not the investor, has the last word or the "final choice" on the matter. Secondly, as this case has shown, even a choice that had been approved by the BOI may not be 'final', for supervening circumstances and changes in the conditions of a place may dictate a corresponding change in the choice of plant site in order that the project will not fail. After all, our country will benefit only when a project succeeds, not when it fails. (Rollo, pp. 538-539)

Nevertheless, the motion for reconsideration of the petitioner was denied. A minority composed of Justices Melencio-Herrera, Gancayco, Sarmiento and this ponente voted to grant the motion for reconsideration stating that the hearing set by the BOI was premature as the decision of the Court was not yet final and executory; that as contended by the petitioner the Court must first rule on whether or not the investor has the right of final choice of plant site for if the ruling is in the affirmative, the hearing would be a useless exercise; that in the October 19, 1989 resolution, the Court while

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

the Taiwanese investors, the Secretary of National Defense and The Chief of Staff of the Armed Forces. Despite speeches in the Senate and House opposing the Transfer of the project to Batangas, BPC filed on April 11, 1989 its request for approval of the amendments. Its application is as follows: "(l) increasing the investment amount from US $220 million to US $320 million; (2) increasing the production capacity of its naphtha cracker, polythylene plant and polypropylene plant; (3) changing the feedstock from naphtha only to "naphtha and/or liquefied petroleum gas;" and (4) transferring the job site from Limay, Bataan, to Batangas. (Annex B to Petition; Rollo, p. 25) Notwithstanding opposition from any quarters and the request of the petitioner addressed to Secretary Concepcion to be furnished a copy of the proposed amendment with its attachments which was denied by the BOI on May 25, 1989, BOI approved the revision of the registration of BPC's petrochemical project. (Petition, Annex F; Rollo, p. 32; See pp. 4 to 6, Decision in G.R. No. 88637; supra.) BOI Vice-Chairman Tomas I. Alcantara testifying before the Committee on Ways and Means of the Senate asserted that:
The BOI has taken a public position preferring Bataan over Batangas as the site of the petrochemical complex, as this would provide a better distribution of industries around the Metro Manila area. ... In advocating the choice of Bataan as the project site for the petrochemical complex, the BOI, however, made it clear, and I would like to repeat this that the BOI made it clear in its view that the BOI or the government for that matter could only recomend as to where the project should be located. The BOI recognizes and respect the principle that the final chouce is still with the proponent who would in the final analysis provide the funding or risk capital for the project. (Petition, P. 13; Annex D to the petition)

This position has not been denied by BOI in its pleadings in G.R. No. 88637 and in the present petition. Section 1, Article VIII of the 1987 Constitution provides:
SECTION 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law. Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.

There is before us an actual controversy whether the petrochemical plant should remain in Bataan or should be transferred to Batangas, and whether its feedstock originally of naphtha only should be changed to naphtha and/or liquefied petroleum gas as the approved amended application of the BPC, now Luzon Petrochemical Corporation (LPC), shows. And in the light of the categorical admission of the BOI that it is the investor who has the final choice of the site and the decision on the feedstock, whether

or not it constitutes a grave abuse of discretion for the BOI to yield to the wishes of the investor, national interest notwithstanding. We rule that the Court has a constitutional duty to step into this controversy and determine the paramount issue. We grant the petition. First, Bataan was the original choice as the plant site of the BOI to which the BPC agreed. That is why it organized itself into a corporation bearing the name Bataan. There is available 576 hectares of public land precisely reserved as the petrochemical zone in Limay, Bataan under P.D. No. 1803. There is no need to buy expensive real estate for the site unlike in the proposed transfer to Batangas. The site is the result of careful study long before any covetous interests intruded into the choice. The site is ideal. It is not unduly constricted and allows for expansion. The respondents have not shown nor reiterated that the alleged peace and order situation in Bataan or unstable labor situation warrant a transfer of the plant site to Batangas. Certainly, these were taken into account when the firm named itself Bataan Petrochemical Corporation. Moreover, the evidence proves the contrary. Second, the BRC, a government owned Filipino corporation, located in Bataan produces 60% of the national output of naphtha which can be used as feedstock for the plant in Bataan. It can provide the feedstock requirement of the plant. On the other hand, the country is short of LPG and there is need to import the same for use of the plant in Batangas. The local production thereof by Shell can hardly supply the needs of the consumers for cooking purposes. Scarce dollars will be diverted, unnecessarily, from vitally essential projects in order to feed the furnaces of the transferred petrochemical plant. Third, naphtha as feedstock has been exempted by law from the ad valorem tax by the approval of Republic Act No. 6767 by President Aquino but excluding LPG from exemption from ad valorem tax. The law was enacted specifically for the petrochemical industry. The policy determination by both Congress and the President is clear. Neither BOI nor a foreign investor should disregard or contravene expressed policy by shifting the feedstock from naphtha to LPG. Fourth, under Section 10, Article XII of the 1987 Constitution, it is the duty of the State to "regulate and exercise authority over foreign investments within its national jurisdiction and in accordance with its national goals and priorities." The development of a self-reliant and independent national economy effectively controlled by Filipinos is mandated in Section 19, Article II of the Constitution. In Article 2 of the Omnibus Investments Code of 1987 "the sound development of the national economy in consonance with the principles and objectives of economic nationalism" is the set goal of government. Fifth, with the admitted fact that the investor is raising the greater portion of the capital for the project from local sources by way of loan which led to the so-called "petroscam

scandal", the capital requirements would be greatly minimized if LPC does not have to buy the land for the project and its feedstock shall be limited to naphtha which is certainly more economical, more readily available than LPG, and does not have to be imported. Sixth, if the plant site is maintained in Bataan, the PNOC shall be a partner in the venture to the great benefit and advantage of the government which shall have a participation in the management of the project instead of a firm which is a huge multinational corporation. In the light of all the clear advantages manifest in the plant's remaining in Bataan, practically nothing is shown to justify the transfer to Batangas except a near-absolute discretion given by BOI to investors not only to freely choose the site but to transfer it from their own first choice for reasons which remain murky to say the least. And this brings us to a prime consideration which the Court cannot rightly ignore. Section 1, Article XII of the Constitution provides that:
xxx xxx xxx The State shall promote industrialization and full employment based on sound agricultural development and agrarian reform, through industries that make full and efficient use of human and natural resources, and which are competitive in both domestic and foreign markets. However, the State shall protect Filipino enterprises against unfair foreign competition and trade practices. xxx xxx xxx

Every provision of the Constitution on the national economy and patrimony is infused with the spirit of national interest. The non-alienation of natural resources, the State's full control over the development and utilization of our scarce resources, agreements with foreigners being based on real contributions to the economic growth and general welfare of the country and the regulation of foreign investments in accordance with national goals and priorities are too explicit not to be noticed and understood. A petrochemical industry is not an ordinary investment opportunity. It should not be treated like a garment or embroidery firm, a shoe-making venture, or even an assembler of cars or manufacturer of computer chips, where the BOI reasoning may be accorded fuller faith and credit. The petrochemical industry is essential to the national interest. In other ASEAN countries like Indonesia and Malaysia, the government superintends the industry by controlling the upstream or cracker facility. In this particular BPC venture, not only has the Government given unprecedented favors, among them:
(1) For an initial authorized capital of only P20 million, the Central Bank gave an eligible relending credit or relending facility worth US $50 million and a debt to swap arrangement

for US $30 million or a total accommodation of US $80 million which at current exchange rates is around P2080 million. (2) A major part of the company's capitalization shall not come from foreign sources but from loans, initially a Pl Billion syndicated loan, to be given by both government banks and a consortium of Philippine private banks or in common parlance, a case of 'guiniguisa sa sariling manteca.' (3) Tax exemptions and privileges were given as part of its 'preferred pioneer status.' (4) Loan applications of other Philippine firms will be crowded out of the Asian Development Bank portfolio because of the petrochemical firm's massive loan request. (Taken from the proceedings before the Senate Blue Ribbon Committee).

but through its regulatory agency, the BOI, it surrenders even the power to make a company abide by its initial choice, a choice free from any suspicion of unscrupulous machinations and a choice which is undoubtedly in the best interests of the Filipino people. The Court, therefore, holds and finds that the BOI committed a grave abuse of discretion in approving the transfer of the petrochemical plant from Bataan to Batangas and authorizing the change of feedstock from naphtha only to naphtha and/or LPG for the main reason that the final say is in the investor all other circumstances to the contrary notwithstanding. No cogent advantage to the government has been shown by this transfer. This is a repudiation of the independent policy of the government expressed in numerous laws and the Constitution to run its own affairs the way it deems best for the national interest. One can but remember the words of a great Filipino leader who in part said he would not mind having a government run like hell by Filipinos than one subservient to foreign dictation. In this case, it is not even a foreign government but an ordinary investor whom the BOI allows to dictate what we shall do with our heritage. WHEREFORE, the petition is hereby granted. The decision of the respondent Board of Investments approving the amendment of the certificate of registration of the Luzon Petrochemical Corporation on May 23, 1989 under its Resolution No. 193, Series of 1989, (Annex F to the Petition) is SET ASIDE as NULL and VOID. The original certificate of registration of BPC' (now LPC) of February 24, 1988 with Bataan as the plant site and naphtha as the feedstock is, therefore, ordered maintained. SO ORDERED. Cruz, Gancayco, Padilla, Bidin, Sarmiento and Medialdea, JJ., concur. Fernan, C.J., Paras, JJ., took no part. Feliciano, J., is on leave.

Separate Opinions
GRIO-AQUINO, J., dissenting Opinion: This is the petitioner's second petition for certiorari and prohibition with application for a temporary restraining order or preliminary injunction against the respondents Board of Investments (BOI), Department of Trade and Industry (DTI), the Luzon Petrochemical Corporation (LPC), formerly Bataan Petrochemical Corporation, and Pilipinas Shell Corporation (SHELL) on the transfer of the LPC petrochemical plant site from Bataan to Batangas. The first case was docketed in this Court as G.R. No. 88637 and was decided on September 7, 1989. Consistent with my opinion in the first case, I vote once more to deny the petition. The petitioner filed this second petition supposedly "upon the authority and strength" of this Court's statement in its Resolution of January 9, 1990 in G.R. No. 88637 that the foreign investor (LPC) does not have a right of final choice of plant site because its choice is subject to approval or disapproval by the BOI (p. 3, Rollo). Ergo, the BOI has the "final choice." Petitioner contends that since the BOI had earlier approved Bataan as the plant site of the LPG petrochemical complex, and of "naphtha only" as the feedstock, that approval was "final" and may not be changed. Hence, the BOI allegedly abused its discretion: (1) in approving the transfer of the LPC's plant site from Bataan to Batangas (in spite of the BOI's initial preference for Bataan) "upon the false and unlawful thesis that the foreign investor has the right of final choice by plant site" (p. 13, Rollo), and (2) in allowing the LPC to shift feedstock from naphtha only, to naphtha and/or LPG, despite the disadvantages of using LPG. Petitioner prays the Court to annul the BOI's action and prohibit LPC from transferring its plant site to Batangas and shifting feedstock to naphtha and/ or LPG (p. 22, Rollo). The petition is not well-taken. There is no provision in the 1987 Investments Code prohibiting the amendment of the investor's application for registration of its project, such as, in this case, its plant site, the feedstock to be used, and the capitalization of the project. Neither does the law prohibit the BOI from approving the amended application. Since the investor may amend its application and the BOI may approve or disapprove the amendments, when may the BOI be deemed to have made a "final choice" regarding those aspects of the project which have been changed?

Only the BOI or the Chief Executive is competent to answer that question, for the matter of choosing an appropriate site for the investor's project is a political and economic decision which, under our system of separation of powers, only the executive branch, as implementor of policy formulated by the legislature (in this case, the policy of encouraging and inviting foreign investments into our country), is empowered to make. It is not for this Court to determine what is, or should be, the BOI's "final choice" of plant site and feedstock, for, as we said in our decision in G.R. No. 88637:
This Court ... does not possess the necessary technology and scientific expertise to detail e whether the transfer of the proposed BPC (now LPC) petrochemical complex from Bataan to Batangas and the change of fuel from 'naphtha only to naphtha and/or LPG' will be best for the project and for our country. This Court is not about to delve into the economics and politics of this case. It is concerned simply with the alleged violation of due process and the alleged extra limitation of power and discretion on the part of the public respondents in approving the transfer of the project to Batangas without giving due notice and an opportunity to be heard to the vocal opponents of that move." (pp. 445-446, Rollo of G.R. No. 88637.)

Although we did say in our decision in G.R. No. 88637 that the BOI, not the foreign investor, has the right of "final choice" of plant site for the LPC project, the Court would be overstepping the bounds of its jurisdiction were it to usurp the prerogative of the BOI to make that choice or change it. The petitioner's contention that the BOI abused its discretion in approving the transfer of the LPC plant site to Batangas because the BOI, in effect, yielded to the investor's choice, is not well taken. The record shows that the BOI approved the transfer because "the BOI recognizes the justification given by the proponent of the project (p. 30, Rollo). The fact that the petitioner disagrees with the BOI's decision does not make it wrong. The petitioner's recourse against the BOI's action is by an appeal to the President (Sec. 36, 1987 Investments Code), not to this Court. This Court, in the exercise of its judicial power, may review and annul executive as well as legislative actions when they clash with the Constitution or with existing laws, or when any branch or instrumentality of the Government has acted with grave abuse of discretion amounting to lack or excess of jurisdiction (Sec. 1, Art. VIII, 1987 Constitution) but the Court may not do more than that. It may not make the decisions that the executive should have made nor pass the laws that the legislature should have passed. Not even the much publicized "petroscam" involving the financial arrangements (not the issue in this case) for the LPC project would justify the intervention of this court in a matter that pertains to the exclusive domain of the executive department. The court does not have a panacea for all the ills that afflict our country nor a solution for every problem that besets it. Did the BOI gravely abuse its discretion in approving the LPC's amended application for registration of its petrochemical project to warrant the intervention of this Court? Grave abuse of discretion implies such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction (Abad Santos vs. Prov. of Tarlac, 67 Phil. 480; Alafriz vs. Nable, 70 Phil. 278).

In light of the LPC's justifications for the transfer of its project site and the shift from one kind of feedstock to two, we are not prepared to hold that the BOI's decision to approve the changes was the product of a capricious and arbitrary exercise of judgment on its part, despite the seemingly impressive arguments of the petitioner showing the advantages of establishing the petrochemical plant in Bataan and of using naphtha only as feedstock. We are not prepared to substitute the judgment of the BOI on this matter with one crafted by this Court. With regard to the scandalously liberal financial accommodations that local banks have allegedly agreed to grant to the LPC (the so-called "petroscam") to enable it to raise a major part of its capital requirements from local sources (hence, a betrayal of the people's expectation that foreign investors will bring in foreign exchange to finance their projects in this country) it is significant that the petitioner has not led an outcry for the disapproval and cancellation of the project on this score. Apparently, the petitioner is not seriously disturbed by the moral implications of the "scam" provided the petrochemical plant is set up in Bataan. The decision of the BOI to allow the transfer of the LPC petrochemical project to Batangas and shift feedstock from naphtha only to naphtha and/or LPG, may appear to the petitioner to be extremely unwise and inadvisable, but the Court may not, for that reason annul the BOI's action or prohibit it from acting on a matter that lies within its particular sphere of competence, for the Court is not a judge of the wisdom and soundness of the actions of the two other co-equal branches of the Government, but only of their legality and constitutionality. WHEREFORE, I vote to deny the petition for certiorari and prohibition for lack of merit. Melencio-Herrera, Narvasa and Regalado, JJ., concur. MELENCIO-HERRERA, J., dissenting: Consistent with my dissent in G.R. No. 88637, the first petition, I concur in the dissent herein of Mme. Justice Aquino and merely wish to add that in its Decision, the majority has actually imposed its own views on matters falling within the competence of a policymaking body of the Government. It decided upon the wisdom of the transfer of the site of the proposed project (pp. 8-9); the reasonableness of the feedstock to be used (pp. 8-9); the undesirability of the capitalization aspect of the project (p. 10), and injected its own concept of the national interest as regards the establishment of a basic industry of strategic importance to the country (p. 13). It is true that the judicial power embodied in Article VIII of the 1987 Constitution speaks of the duty of Courts of justice to determine whether or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. By no means, however, does it vest in the Courts the power to enter the realm of policy considerations under the guise of the commission of grave abuse of discretion.

But this is exactly what the majority Decision has resulted in. It has made a sweeping policy determination and has unwittingly transformed itself into what might be termed a "government by the Judiciary," something never intended by the framers of the Constitution when they provided for separation of powers among the three co-equal branches of government and excluded the Judiciary from policy-making.

Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. 101083 July 30, 1993 JUAN ANTONIO, ANNA ROSARIO and JOSE ALFONSO, all surnamed OPOSA, minors, and represented by their parents ANTONIO and RIZALINA OPOSA, ROBERTA NICOLE SADIUA, minor, represented by her parents CALVIN and ROBERTA SADIUA, CARLO, AMANDA SALUD and PATRISHA, all surnamed FLORES, minors and represented by their parents ENRICO and NIDA FLORES, GIANINA DITA R. FORTUN, minor, represented by her parents SIGRID and DOLORES FORTUN, GEORGE II and MA. CONCEPCION, all surnamed MISA, minors and represented by their parents GEORGE and MYRA MISA, BENJAMIN ALAN V. PESIGAN, minor, represented by his parents ANTONIO and ALICE PESIGAN, JOVIE MARIE ALFARO, minor, represented by her parents JOSE and MARIA VIOLETA ALFARO, MARIA CONCEPCION T. CASTRO, minor, represented by her parents FREDENIL and JANE CASTRO, JOHANNA DESAMPARADO, minor, represented by her parents JOSE and ANGELA DESAMPRADO, CARLO JOAQUIN T. NARVASA, minor, represented by his parents GREGORIO II and CRISTINE CHARITY NARVASA, MA. MARGARITA, JESUS IGNACIO, MA. ANGELA and MARIE GABRIELLE, all surnamed SAENZ, minors, represented by their parents ROBERTO and AURORA SAENZ, KRISTINE, MARY ELLEN, MAY, GOLDA MARTHE and DAVID IAN, all surnamed KING, minors, represented by their parents MARIO and HAYDEE KING, DAVID, FRANCISCO and THERESE VICTORIA, all surnamed ENDRIGA, minors, represented by their parents BALTAZAR and TERESITA ENDRIGA, JOSE MA. and REGINA MA., all surnamed ABAYA, minors, represented by their parents ANTONIO and MARICA ABAYA, MARILIN, MARIO, JR. and MARIETTE, all surnamed CARDAMA, minors, represented by their parents MARIO and LINA CARDAMA, CLARISSA, ANN MARIE, NAGEL, and IMEE LYN, all surnamed OPOSA, minors and represented by their parents RICARDO and MARISSA OPOSA, PHILIP JOSEPH, STEPHEN JOHN and ISAIAH JAMES, all surnamed QUIPIT, minors, represented by their parents

JOSE MAX and VILMI QUIPIT, BUGHAW CIELO, CRISANTO, ANNA, DANIEL and FRANCISCO, all surnamed BIBAL, minors, represented by their parents FRANCISCO, JR. and MILAGROS BIBAL, and THE PHILIPPINE ECOLOGICAL NETWORK, INC., petitioners, vs. THE HONORABLE FULGENCIO S. FACTORAN, JR., in his capacity as the Secretary of the Department of Environment and Natural Resources, and THE HONORABLE ERIBERTO U. ROSARIO, Presiding Judge of the RTC, Makati, Branch 66, respondents. Oposa Law Office for petitioners. The Solicitor General for respondents.

DAVIDE, JR., J.: In a broader sense, this petition bears upon the right of Filipinos to a balanced and healthful ecology which the petitioners dramatically associate with the twin concepts of "inter-generational responsibility" and "inter-generational justice." Specifically, it touches on the issue of whether the said petitioners have a cause of action to "prevent the misappropriation or impairment" of Philippine rainforests and "arrest the unabated hemorrhage of the country's vital life support systems and continued rape of Mother Earth." The controversy has its genesis in Civil Case No. 90-77 which was filed before Branch 66 (Makati, Metro Manila) of the Regional Trial Court (RTC), National Capital Judicial Region. The principal plaintiffs therein, now the principal petitioners, are all minors duly represented and joined by their respective parents. Impleaded as an additional plaintiff is the Philippine Ecological Network, Inc. (PENI), a domestic, non-stock and non-profit corporation organized for the purpose of, inter alia, engaging in concerted action geared for the protection of our environment and natural resources. The original defendant was the Honorable Fulgencio S. Factoran, Jr., then Secretary of the Department of Environment and Natural Resources (DENR). His substitution in this petition by the new Secretary, the Honorable Angel C. Alcala, was subsequently ordered upon proper motion by the petitioners. 1 The complaint 2 was instituted as a taxpayers' class suit 3 and alleges that the plaintiffs "are all citizens of the Republic of the Philippines, taxpayers, and entitled to the full benefit, use and enjoyment of the natural resource treasure that is the country's virgin tropical forests." The same was filed for themselves and others who are equally concerned about the preservation of said resource but are "so numerous that it is impracticable to bring them all before the Court." The minors further asseverate that they "represent their generation as well as generations yet unborn." 4 Consequently, it is prayed for that judgment be rendered:
. . . ordering defendant, his agents, representatives and other persons acting in his behalf to

(1) Cancel all existing timber license agreements in the country; (2) Cease and desist from receiving, accepting, processing, renewing or approving new timber license agreements.

and granting the plaintiffs ". . . such other reliefs just and equitable under the premises."
5

The complaint starts off with the general averments that the Philippine archipelago of 7,100 islands has a land area of thirty million (30,000,000) hectares and is endowed with rich, lush and verdant rainforests in which varied, rare and unique species of flora and fauna may be found; these rainforests contain a genetic, biological and chemical pool which is irreplaceable; they are also the habitat of indigenous Philippine cultures which have existed, endured and flourished since time immemorial; scientific evidence reveals that in order to maintain a balanced and healthful ecology, the country's land area should be utilized on the basis of a ratio of fifty-four per cent (54%) for forest cover and forty-six per cent (46%) for agricultural, residential, industrial, commercial and other uses; the distortion and disturbance of this balance as a consequence of deforestation have resulted in a host of environmental tragedies, such as (a) water shortages resulting from drying up of the water table, otherwise known as the "aquifer," as well as of rivers, brooks and streams, (b) salinization of the water table as a result of the intrusion therein of salt water, incontrovertible examples of which may be found in the island of Cebu and the Municipality of Bacoor, Cavite, (c) massive erosion and the consequential loss of soil fertility and agricultural productivity, with the volume of soil eroded estimated at one billion (1,000,000,000) cubic meters per annum approximately the size of the entire island of Catanduanes, (d) the endangering and extinction of the country's unique, rare and varied flora and fauna, (e) the disturbance and dislocation of cultural communities, including the disappearance of the Filipino's indigenous cultures, (f) the siltation of rivers and seabeds and consequential destruction of corals and other aquatic life leading to a critical reduction in marine resource productivity, (g) recurrent spells of drought as is presently experienced by the entire country, (h) increasing velocity of typhoon winds which result from the absence of windbreakers, (i) the floodings of lowlands and agricultural plains arising from the absence of the absorbent mechanism of forests, (j) the siltation and shortening of the lifespan of multi-billion peso dams constructed and operated for the purpose of supplying water for domestic uses, irrigation and the generation of electric power, and (k) the reduction of the earth's capacity to process carbon dioxide gases which has led to perplexing and catastrophic climatic changes such as the phenomenon of global warming, otherwise known as the "greenhouse effect." Plaintiffs further assert that the adverse and detrimental consequences of continued and deforestation are so capable of unquestionable demonstration that the same may be submitted as a matter of judicial notice. This notwithstanding, they expressed their intention to present expert witnesses as well as documentary, photographic and film evidence in the course of the trial. As their cause of action, they specifically allege that:

CAUSE OF ACTION 7. Plaintiffs replead by reference the foregoing allegations. 8. Twenty-five (25) years ago, the Philippines had some sixteen (16) million hectares of rainforests constituting roughly 53% of the country's land mass. 9. Satellite images taken in 1987 reveal that there remained no more than 1.2 million hectares of said rainforests or four per cent (4.0%) of the country's land area. 10. More recent surveys reveal that a mere 850,000 hectares of virgin old-growth rainforests are left, barely 2.8% of the entire land mass of the Philippine archipelago and about 3.0 million hectares of immature and uneconomical secondary growth forests. 11. Public records reveal that the defendant's, predecessors have granted timber license agreements ('TLA's') to various corporations to cut the aggregate area of 3.89 million hectares for commercial logging purposes. A copy of the TLA holders and the corresponding areas covered is hereto attached as Annex "A". 12. At the present rate of deforestation, i.e. about 200,000 hectares per annum or 25 hectares per hour nighttime, Saturdays, Sundays and holidays included the Philippines will be bereft of forest resources after the end of this ensuing decade, if not earlier. 13. The adverse effects, disastrous consequences, serious injury and irreparable damage of this continued trend of deforestation to the plaintiff minor's generation and to generations yet unborn are evident and incontrovertible. As a matter of fact, the environmental damages enumerated in paragraph 6 hereof are already being felt, experienced and suffered by the generation of plaintiff adults. 14. The continued allowance by defendant of TLA holders to cut and deforest the remaining forest stands will work great damage and irreparable injury to plaintiffs especially plaintiff minors and their successors who may never see, use, benefit from and enjoy this rare and unique natural resource treasure. This act of defendant constitutes a misappropriation and/or impairment of the natural resource property he holds in trust for the benefit of plaintiff minors and succeeding generations. 15. Plaintiffs have a clear and constitutional right to a balanced and healthful ecology and are entitled to protection by the State in its capacity as the parens patriae. 16. Plaintiff have exhausted all administrative remedies with the defendant's office. On March 2, 1990, plaintiffs served upon defendant a final demand to cancel all logging permits in the country. A copy of the plaintiffs' letter dated March 1, 1990 is hereto attached as Annex "B". 17. Defendant, however, fails and refuses to cancel the existing TLA's to the continuing serious damage and extreme prejudice of plaintiffs.

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

On 22 June 1990, the original defendant, Secretary Factoran, Jr., filed a Motion to Dismiss the complaint based on two (2) grounds, namely: (1) the plaintiffs have no cause of action against him and (2) the issue raised by the plaintiffs is a political question which properly pertains to the legislative or executive branches of Government. In their 12 July 1990 Opposition to the Motion, the petitioners maintain that (1) the complaint shows a clear and unmistakable cause of action, (2) the motion is dilatory and (3) the action presents a justiciable question as it involves the defendant's abuse of discretion. On 18 July 1991, respondent Judge issued an order granting the aforementioned motion to dismiss. 7 In the said order, not only was the defendant's claim that the complaint states no cause of action against him and that it raises a political question

sustained, the respondent Judge further ruled that the granting of the relief prayed for would result in the impairment of contracts which is prohibited by the fundamental law of the land. Plaintiffs thus filed the instant special civil action for certiorari under Rule 65 of the Revised Rules of Court and ask this Court to rescind and set aside the dismissal order on the ground that the respondent Judge gravely abused his discretion in dismissing the action. Again, the parents of the plaintiffs-minors not only represent their children, but have also joined the latter in this case. 8 On 14 May 1992, We resolved to give due course to the petition and required the parties to submit their respective Memoranda after the Office of the Solicitor General (OSG) filed a Comment in behalf of the respondents and the petitioners filed a reply thereto. Petitioners contend that the complaint clearly and unmistakably states a cause of action as it contains sufficient allegations concerning their right to a sound environment based on Articles 19, 20 and 21 of the Civil Code (Human Relations), Section 4 of Executive Order (E.O.) No. 192 creating the DENR, Section 3 of Presidential Decree (P.D.) No. 1151 (Philippine Environmental Policy), Section 16, Article II of the 1987 Constitution recognizing the right of the people to a balanced and healthful ecology, the concept of generational genocide in Criminal Law and the concept of man's inalienable right to selfpreservation and self-perpetuation embodied in natural law. Petitioners likewise rely on the respondent's correlative obligation per Section 4 of E.O. No. 192, to safeguard the people's right to a healthful environment. It is further claimed that the issue of the respondent Secretary's alleged grave abuse of discretion in granting Timber License Agreements (TLAs) to cover more areas for logging than what is available involves a judicial question. Anent the invocation by the respondent Judge of the Constitution's non-impairment clause, petitioners maintain that the same does not apply in this case because TLAs are not contracts. They likewise submit that even if TLAs may be considered protected by the said clause, it is well settled that they may still be revoked by the State when the public interest so requires. On the other hand, the respondents aver that the petitioners failed to allege in their complaint a specific legal right violated by the respondent Secretary for which any relief is provided by law. They see nothing in the complaint but vague and nebulous allegations concerning an "environmental right" which supposedly entitles the petitioners to the "protection by the state in its capacity as parens patriae." Such allegations, according to them, do not reveal a valid cause of action. They then reiterate the theory that the question of whether logging should be permitted in the country is a political question which should be properly addressed to the executive or legislative branches of Government. They therefore assert that the petitioners' resources is not to

file an action to court, but to lobby before Congress for the passage of a bill that would ban logging totally. As to the matter of the cancellation of the TLAs, respondents submit that the same cannot be done by the State without due process of law. Once issued, a TLA remains effective for a certain period of time usually for twenty-five (25) years. During its effectivity, the same can neither be revised nor cancelled unless the holder has been found, after due notice and hearing, to have violated the terms of the agreement or other forestry laws and regulations. Petitioners' proposition to have all the TLAs indiscriminately cancelled without the requisite hearing would be violative of the requirements of due process. Before going any further, We must first focus on some procedural matters. Petitioners instituted Civil Case No. 90-777 as a class suit. The original defendant and the present respondents did not take issue with this matter. Nevertheless, We hereby rule that the said civil case is indeed a class suit. The subject matter of the complaint is of common and general interest not just to several, but to all citizens of the Philippines. Consequently, since the parties are so numerous, it, becomes impracticable, if not totally impossible, to bring all of them before the court. We likewise declare that the plaintiffs therein are numerous and representative enough to ensure the full protection of all concerned interests. Hence, all the requisites for the filing of a valid class suit under Section 12, Rule 3 of the Revised Rules of Court are present both in the said civil case and in the instant petition, the latter being but an incident to the former. This case, however, has a special and novel element. Petitioners minors assert that they represent their generation as well as generations yet unborn. We find no difficulty in ruling that they can, for themselves, for others of their generation and for the succeeding generations, file a class suit. Their personality to sue in behalf of the succeeding generations can only be based on the concept of intergenerational responsibility insofar as the right to a balanced and healthful ecology is concerned. Such a right, as hereinafter expounded, considers the "rhythm and harmony of nature." Nature means the created world in its entirety. 9 Such rhythm and harmony indispensably include, inter alia, the judicious disposition, utilization, management, renewal and conservation of the country's forest, mineral, land, waters, fisheries, wildlife, off-shore areas and other natural resources to the end that their exploration, development and utilization be equitably accessible to the present as well as future generations. 10 Needless to say, every generation has a responsibility to the next to preserve that rhythm and harmony for the full enjoyment of a balanced and healthful ecology. Put a little differently, the minors' assertion of their right to a sound environment constitutes, at the same time, the performance of their obligation to ensure the protection of that right for the generations to come. The locus standi of the petitioners having thus been addressed, We shall now proceed to the merits of the petition.

After a careful perusal of the complaint in question and a meticulous consideration and evaluation of the issues raised and arguments adduced by the parties, We do not hesitate to find for the petitioners and rule against the respondent Judge's challenged order for having been issued with grave abuse of discretion amounting to lack of jurisdiction. The pertinent portions of the said order reads as follows:
xxx xxx xxx After a careful and circumspect evaluation of the Complaint, the Court cannot help but agree with the defendant. For although we believe that plaintiffs have but the noblest of all intentions, it (sic) fell short of alleging, with sufficient definiteness, a specific legal right they are seeking to enforce and protect, or a specific legal wrong they are seeking to prevent and redress (Sec. 1, Rule 2, RRC). Furthermore, the Court notes that the Complaint is replete with vague assumptions and vague conclusions based on unverified data. In fine, plaintiffs fail to state a cause of action in its Complaint against the herein defendant. Furthermore, the Court firmly believes that the matter before it, being impressed with political color and involving a matter of public policy, may not be taken cognizance of by this Court without doing violence to the sacred principle of "Separation of Powers" of the three (3) co-equal branches of the Government. The Court is likewise of the impression that it cannot, no matter how we stretch our jurisdiction, grant the reliefs prayed for by the plaintiffs, i.e., to cancel all existing timber license agreements in the country and to cease and desist from receiving, accepting, processing, renewing or approving new timber license agreements. For to do otherwise would amount to "impairment of contracts" abhored (sic) by the fundamental law. 11

We do not agree with the trial court's conclusions that the plaintiffs failed to allege with sufficient definiteness a specific legal right involved or a specific legal wrong committed, and that the complaint is replete with vague assumptions and conclusions based on unverified data. A reading of the complaint itself belies these conclusions. The complaint focuses on one specific fundamental legal right the right to a balanced and healthful ecology which, for the first time in our nation's constitutional history, is solemnly incorporated in the fundamental law. Section 16, Article II of the 1987 Constitution explicitly provides:
Sec. 16. The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature. This right unites with the right to health which is provided for in the preceding section of the same article: Sec. 15. The State shall protect and promote the right to health of the people and instill health consciousness among them.

While the right to a balanced and healthful ecology is to be found under the Declaration of Principles and State Policies and not under the Bill of Rights, it does not follow that it is less important than any of the civil and political rights enumerated in the latter. Such a

right belongs to a different category of rights altogether for it concerns nothing less than self-preservation and self-perpetuation aptly and fittingly stressed by the petitioners the advancement of which may even be said to predate all governments and constitutions. As a matter of fact, these basic rights need not even be written in the Constitution for they are assumed to exist from the inception of humankind. If they are now explicitly mentioned in the fundamental charter, it is because of the well-founded fear of its framers that unless the rights to a balanced and healthful ecology and to health are mandated as state policies by the Constitution itself, thereby highlighting their continuing importance and imposing upon the state a solemn obligation to preserve the first and protect and advance the second, the day would not be too far when all else would be lost not only for the present generation, but also for those to come generations which stand to inherit nothing but parched earth incapable of sustaining life. The right to a balanced and healthful ecology carries with it the correlative duty to refrain from impairing the environment. During the debates on this right in one of the plenary sessions of the 1986 Constitutional Commission, the following exchange transpired between Commissioner Wilfrido Villacorta and Commissioner Adolfo Azcuna who sponsored the section in question:
MR. VILLACORTA: Does this section mandate the State to provide sanctions against all forms of pollution air, water and noise pollution? MR. AZCUNA: Yes, Madam President. The right to healthful (sic) environment necessarily carries with it the correlative duty of not impairing the same and, therefore, sanctions may be provided for impairment of environmental balance. 12

The said right implies, among many other things, the judicious management and conservation of the country's forests. Without such forests, the ecological or environmental balance would be irreversiby disrupted. Conformably with the enunciated right to a balanced and healthful ecology and the right to health, as well as the other related provisions of the Constitution concerning the conservation, development and utilization of the country's natural resources, 13 then President Corazon C. Aquino promulgated on 10 June 1987 E.O. No. 192, 14 Section 4 of which expressly mandates that the Department of Environment and Natural Resources "shall be the primary government agency responsible for the conservation, management, development and proper use of the country's environment and natural resources, specifically forest and grazing lands, mineral, resources, including those in reservation and watershed areas, and lands of the public domain, as well as the licensing and regulation of all natural resources as may be provided for by law in order to ensure equitable sharing of the benefits derived therefrom for the welfare of the

present and future generations of Filipinos." Section 3 thereof makes the following statement of policy:
Sec. 3. Declaration of Policy. It is hereby declared the policy of the State to ensure the sustainable use, development, management, renewal, and conservation of the country's forest, mineral, land, off-shore areas and other natural resources, including the protection and enhancement of the quality of the environment, and equitable access of the different segments of the population to the development and the use of the country's natural resources, not only for the present generation but for future generations as well. It is also the policy of the state to recognize and apply a true value system including social and environmental cost implications relative to their utilization, development and conservation of our natural resources.

This policy declaration is substantially re-stated it Title XIV, Book IV of the Administrative Code of 1987, 15 specifically in Section 1 thereof which reads:
Sec. 1. Declaration of Policy. (1) The State shall ensure, for the benefit of the Filipino people, the full exploration and development as well as the judicious disposition, utilization, management, renewal and conservation of the country's forest, mineral, land, waters, fisheries, wildlife, off-shore areas and other natural resources, consistent with the necessity of maintaining a sound ecological balance and protecting and enhancing the quality of the environment and the objective of making the exploration, development and utilization of such natural resources equitably accessible to the different segments of the present as well as future generations. (2) The State shall likewise recognize and apply a true value system that takes into account social and environmental cost implications relative to the utilization, development and conservation of our natural resources.

The above provision stresses "the necessity of maintaining a sound ecological balance and protecting and enhancing the quality of the environment." Section 2 of the same Title, on the other hand, specifically speaks of the mandate of the DENR; however, it makes particular reference to the fact of the agency's being subject to law and higher authority. Said section provides:
Sec. 2. Mandate. (1) The Department of Environment and Natural Resources shall be primarily responsible for the implementation of the foregoing policy. (2) It shall, subject to law and higher authority, be in charge of carrying out the State's constitutional mandate to control and supervise the exploration, development, utilization, and conservation of the country's natural resources.

Both E.O. NO. 192 and the Administrative Code of 1987 have set the objectives which will serve as the bases for policy formulation, and have defined the powers and functions of the DENR. It may, however, be recalled that even before the ratification of the 1987 Constitution, specific statutes already paid special attention to the "environmental right" of the present and future generations. On 6 June 1977, P.D. No. 1151 (Philippine Environmental Policy) and P.D. No. 1152 (Philippine Environment Code) were issued.

The former "declared a continuing policy of the State (a) to create, develop, maintain and improve conditions under which man and nature can thrive in productive and enjoyable harmony with each other, (b) to fulfill the social, economic and other requirements of present and future generations of Filipinos, and (c) to insure the attainment of an environmental quality that is conducive to a life of dignity and wellbeing." 16 As its goal, it speaks of the "responsibilities of each generation as trustee and guardian of the environment for succeeding generations." 17 The latter statute, on the other hand, gave flesh to the said policy. Thus, the right of the petitioners (and all those they represent) to a balanced and healthful ecology is as clear as the DENR's duty under its mandate and by virtue of its powers and functions under E.O. No. 192 and the Administrative Code of 1987 to protect and advance the said right. A denial or violation of that right by the other who has the corelative duty or obligation to respect or protect the same gives rise to a cause of action. Petitioners maintain that the granting of the TLAs, which they claim was done with grave abuse of discretion, violated their right to a balanced and healthful ecology; hence, the full protection thereof requires that no further TLAs should be renewed or granted. A cause of action is defined as:
. . . an act or omission of one party in violation of the legal right or rights of the other; and its essential elements are legal right of the plaintiff, correlative obligation of the defendant, and act or omission of the defendant in violation of said legal right. 18

It is settled in this jurisdiction that in a motion to dismiss based on the ground that the complaint fails to state a cause of action, 19 the question submitted to the court for resolution involves the sufficiency of the facts alleged in the complaint itself. No other matter should be considered; furthermore, the truth of falsity of the said allegations is beside the point for the truth thereof is deemed hypothetically admitted. The only issue to be resolved in such a case is: admitting such alleged facts to be true, may the court render a valid judgment in accordance with the prayer in the complaint? 20 In Militante vs. Edrosolano, 21 this Court laid down the rule that the judiciary should "exercise the utmost care and circumspection in passing upon a motion to dismiss on the ground of the absence thereof [cause of action] lest, by its failure to manifest a correct appreciation of the facts alleged and deemed hypothetically admitted, what the law grants or recognizes is effectively nullified. If that happens, there is a blot on the legal order. The law itself stands in disrepute." After careful examination of the petitioners' complaint, We find the statements under the introductory affirmative allegations, as well as the specific averments under the subheading CAUSE OF ACTION, to be adequate enough to show, prima facie, the claimed violation of their rights. On the basis thereof, they may thus be granted, wholly or partly, the reliefs prayed for. It bears stressing, however, that insofar as the cancellation of the TLAs is concerned, there is the need to implead, as party defendants, the grantees thereof for they are indispensable parties.

The foregoing considered, Civil Case No. 90-777 be said to raise a political question. Policy formulation or determination by the executive or legislative branches of Government is not squarely put in issue. What is principally involved is the enforcement of a right vis-a-vis policies already formulated and expressed in legislation. It must, nonetheless, be emphasized that the political question doctrine is no longer, the insurmountable obstacle to the exercise of judicial power or the impenetrable shield that protects executive and legislative actions from judicial inquiry or review. The second paragraph of section 1, Article VIII of the Constitution states that:
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.

Commenting on this provision in his book, Philippine Political Law, 22 Mr. Justice Isagani A. Cruz, a distinguished member of this Court, says:
The first part of the authority represents the traditional concept of judicial power, involving the settlement of conflicting rights as conferred as law. The second part of the authority represents a broadening of judicial power to enable the courts of justice to review what was before forbidden territory, to wit, the discretion of the political departments of the government. As worded, the new provision vests in the judiciary, and particularly the Supreme Court, the power to rule upon even the wisdom of the decisions of the executive and the legislature and to declare their acts invalid for lack or excess of jurisdiction because tainted with grave abuse of discretion. The catch, of course, is the meaning of "grave abuse of discretion," which is a very elastic phrase that can expand or contract according to the disposition of the judiciary.

In Daza vs. Singson, 23 Mr. Justice Cruz, now speaking for this Court, noted:
In the case now before us, the jurisdictional objection becomes even less tenable and decisive. The reason is that, even if we were to assume that the issue presented before us was political in nature, we would still not be precluded from revolving it under the expanded jurisdiction conferred upon us that now covers, in proper cases, even the political question. Article VII, Section 1, of the Constitution clearly provides: . . .

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

We are not persuaded at all; on the contrary, We are amazed, if not shocked, by such a sweeping pronouncement. In the first place, the respondent Secretary did not, for obvious reasons, even invoke in his motion to dismiss the non-impairment clause. If he

had done so, he would have acted with utmost infidelity to the Government by providing undue and unwarranted benefits and advantages to the timber license holders because he would have forever bound the Government to strictly respect the said licenses according to their terms and conditions regardless of changes in policy and the demands of public interest and welfare. He was aware that as correctly pointed out by the petitioners, into every timber license must be read Section 20 of the Forestry Reform Code (P.D. No. 705) which provides:
. . . Provided, That when the national interest so requires, the President may amend, modify, replace or rescind any contract, concession, permit, licenses or any other form of privilege granted herein . . .

Needless to say, all licenses may thus be revoked or rescinded by executive action. It is not a contract, property or a property right protested by the due process clause of the Constitution. In Tan vs. Director of Forestry, 25 this Court held:
. . . A timber license is an instrument by which the State regulates the utilization and disposition of forest resources to the end that public welfare is promoted. A timber license is not a contract within the purview of the due process clause; it is only a license or privilege, which can be validly withdrawn whenever dictated by public interest or public welfare as in this case. A license is merely a permit or privilege to do what otherwise would be unlawful, and is not a contract between the authority, federal, state, or municipal, granting it and the person to whom it is granted; neither is it property or a property right, nor does it create a vested right; nor is it taxation (37 C.J. 168). Thus, this Court held that the granting of license does not create irrevocable rights, neither is it property or property rights (People vs. Ong Tin, 54 O.G. 7576).

We reiterated this pronouncement in Felipe Ysmael, Jr. & Co., Inc. vs. Deputy Executive Secretary: 26
. . . Timber licenses, permits and license agreements are the principal instruments by which the State regulates the utilization and disposition of forest resources to the end that public welfare is promoted. And it can hardly be gainsaid that they merely evidence a privilege granted by the State to qualified entities, and do not vest in the latter a permanent or irrevocable right to the particular concession area and the forest products therein. They may be validly amended, modified, replaced or rescinded by the Chief Executive when national interests so require. Thus, they are not deemed contracts within the purview of the due process of law clause [See Sections 3(ee) and 20 of Pres. Decree No. 705, as amended. Also, Tan v. Director of Forestry, G.R. No. L-24548, October 27, 1983, 125 SCRA 302].

Since timber licenses are not contracts, the non-impairment clause, which reads:
Sec. 10. No law impairing, the obligation of contracts shall be passed.
27

cannot be invoked.

In the second place, even if it is to be assumed that the same are contracts, the instant case does not involve a law or even an executive issuance declaring the cancellation or modification of existing timber licenses. Hence, the non-impairment clause cannot as yet be invoked. Nevertheless, granting further that a law has actually been passed mandating cancellations or modifications, the same cannot still be stigmatized as a violation of the non-impairment clause. This is because by its very nature and purpose, such as law could have only been passed in the exercise of the police power of the state for the purpose of advancing the right of the people to a balanced and healthful ecology, promoting their health and enhancing the general welfare. In Abe vs. Foster Wheeler Corp. 28 this Court stated:
The freedom of contract, under our system of government, is not meant to be absolute. The same is understood to be subject to reasonable legislative regulation aimed at the promotion of public health, moral, safety and welfare. In other words, the constitutional guaranty of non-impairment of obligations of contract is limited by the exercise of the police power of the State, in the interest of public health, safety, moral and general welfare.

The reason for this is emphatically set forth in Nebia vs. New York, 29 quoted in Philippine American Life Insurance Co. vs. Auditor General , 30 to wit:
Under our form of government the use of property and the making of contracts are normally matters of private and not of public concern. The general rule is that both shall be free of governmental interference. But neither property rights nor contract rights are absolute; for government cannot exist if the citizen may at will use his property to the detriment of his fellows, or exercise his freedom of contract to work them harm. Equally fundamental with the private right is that of the public to regulate it in the common interest.

In short, the non-impairment clause must yield to the police power of the state.

31

Finally, it is difficult to imagine, as the trial court did, how the non-impairment clause could apply with respect to the prayer to enjoin the respondent Secretary from receiving, accepting, processing, renewing or approving new timber licenses for, save in cases of renewal, no contract would have as of yet existed in the other instances. Moreover, with respect to renewal, the holder is not entitled to it as a matter of right. WHEREFORE, being impressed with merit, the instant Petition is hereby GRANTED, and the challenged Order of respondent Judge of 18 July 1991 dismissing Civil Case No. 90-777 is hereby set aside. The petitioners may therefore amend their complaint to implead as defendants the holders or grantees of the questioned timber license agreements. No pronouncement as to costs. SO ORDERED.

Cruz, Padilla, Bidin, Grio-Aquino, Regalado, Romero, Nocon, Bellosillo, Melo and Quiason, JJ., concur. Narvasa, C.J., Puno and Vitug, JJ., took no part.

MANILA PRINCE HOTEL, petitioner, vs. GOVERNMENT SERVICE INSURANCE SYSTEM, MANILA HOTEL CORPORATION, COMMITTEE ON PRIVATIZATION and OFFICE OF THE GOVERNMENT CORPORATE COUNSEL, respondents. DECISION BELLOSILLO, J.: The Filipino First Policy enshrined in the 1987 Constitution, i.e., in the grant of rights, privileges, and concessions covering the national economy and patrimony, the State shall give preference to qualified Filipinos, [1] is invoked by petitioner in its bid to acquire 51% of the shares of the Manila Hotel Corporation (MHC) which owns the historic Manila Hotel. Opposing, respondents maintain that the provision is not self-executing but requires an implementing legislation for its enforcement. Corollarily, they ask whether the 51% shares form part of the national economy and patrimony covered by the protective mantle of the Constitution.
i

The controversy arose when respondent Government Service Insurance System (GSIS), pursuant to the privatization program of the Philippine Government under Proclamation No. 50 dated 8 December 1986, decided to sell through public bidding 30% to 51% of the issued and outstanding shares of respondent MHC. The winning bidder, or the eventual strategic partner, is to provide management expertise and/or an international marketing/reservation system, and financial support to strengthen the profitability and performance of the Manila Hotel. [2] In a close bidding held on 18 September 1995 only two (2) bidders participated: petitioner Manila Prince Hotel Corporation, a Filipino corporation, which offered to buy 51% of the MHC or 15,300,000 shares at P41.58 per share, and Renong Berhad, a Malaysian firm, with ITT-Sheraton as its hotel operator, which bid for the same number of shares at P44.00 per share, or P2.42 more than the bid of petitioner.
ii

Pertinent provisions of the bidding rules prepared by respondent GSIS state I. EXECUTION OF THE NECESSARY CONTRACTS WITH GSIS/MHC -

1. The Highest Bidder must comply with the conditions set forth below by October 23, 1995 (reset to November 3, 1995) or the Highest Bidder will lose the right to purchase the Block of Shares and GSIS will instead offer the Block of Shares to the other Qualified Bidders: a. The Highest Bidder must negotiate and execute with the GSIS/MHC the Management Contract, International Marketing/Reservation System Contract or other type of contract specified by the Highest Bidder in its strategic plan for the Manila Hotel x x x x b. The Highest Bidder must execute the Stock Purchase and Sale Agreement with GSIS x x x x K. DECLARATION OF THE WINNING BIDDER/STRATEGIC PARTNER The Highest Bidder will be declared the Winning Bidder/Strategic Partner after the following conditions are met: a. Execution of the necessary contracts with GSIS/MHC not later than October 23, 1995 (reset to November 3, 1995); and b. Requisite approvals from the GSIS/MHC and COP (Committee on Privatization)/ OGCC (Office of the Government Corporate Counsel) are obtained. [3]
iii

Pending the declaration of Renong Berhard as the winning bidder/strategic partner and the execution of the necessary contracts, petitioner in a letter to respondent GSIS dated 28 September 1995 matched the bid price of P44.00 per share tendered by Renong Berhad. [4] In a subsequent letter dated 10 October 1995 petitioner sent a managers check issued by Philtrust Bank for Thirty-three Million Pesos (P33,000,000.00) as Bid Security to match the bid of the Malaysian Group, Messrs. Renong Berhad x x x x [5] which respondent GSIS refused to accept.
iv v

On 17 October 1995, perhaps apprehensive that respondent GSIS has disregarded the tender of the matching bid and that the sale of 51% of the MHC may be hastened by respondent GSIS and consummated with Renong Berhad, petitioner came to this Court on prohibition and mandamus. On 18 October 1995 the Court issued a temporary restraining order enjoining respondents from perfecting and consummating the sale to the Malaysian firm. On 10 September 1996 the instant case was accepted by the Court En Banc after it was referred to it by the First Division. The case was then set for oral arguments with former Chief Justice Enrique M. Fernando and Fr. Joaquin G. Bernas, S.J., as amici curiae. In the main, petitioner invokes Sec. 10, second par., Art. XII, of the 1987 Constitution and submits that the Manila Hotel has been identified with the Filipino nation and has practically become a historical monument which reflects the vibrancy of Philippine heritage and culture. It is a proud legacy of an earlier generation of Filipinos who believed in the nobility and sacredness of independence and its power and capacity to release the full potential of the Filipino people. To all intents and purposes, it has become a part of the national patrimony. [6] Petitioner also argues that since 51% of the shares of the MHC carries with it the ownership of the business of the hotel which is owned by respondent GSIS, a government-owned and
vi

controlled corporation, the hotel business of respondent GSIS being a part of the tourism industry is unquestionably a part of the national economy. Thus, any transaction involving 51% of the shares of stock of the MHC is clearly covered by the term national economy, to which Sec. 10, second par., Art. XII, 1987 Constitution, applies. [7]
vii

It is also the thesis of petitioner that since Manila Hotel is part of the national patrimony and its business also unquestionably part of the national economy petitioner should be preferred after it has matched the bid offer of the Malaysian firm. For the bidding rules mandate that if for any reason, the Highest Bidder cannot be awarded the Block of Shares, GSIS may offer this to the other Qualified Bidders that have validly submitted bids provided that these Qualified Bidders are willing to match the highest bid in terms of price per share. [8]
viii

Respondents except. They maintain that: First, Sec. 10, second par., Art. XII, of the 1987 Constitution is merely a statement of principle and policy since it is not a self-executing provision and requires implementing legislation(s) x x x x Thus, for the said provision to operate, there must be existing laws to lay down conditions under which business may be done. [9]
ix

Second, granting that this provision is self-executing, Manila Hotel does not fall under the term national patrimony which only refers to lands of the public domain, waters, minerals, coal, petroleum and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna and all marine wealth in its territorial sea, and exclusive marine zone as cited in the first and second paragraphs of Sec. 2, Art. XII, 1987 Constitution. According to respondents, while petitioner speaks of the guests who have slept in the hotel and the events that have transpired therein which make the hotel historic, these alone do not make the hotel fall under the patrimony of the nation. What is more, the mandate of the Constitution is addressed to the State, not to respondent GSIS which possesses a personality of its own separate and distinct from the Philippines as a State. Third, granting that the Manila Hotel forms part of the national patrimony, the constitutional provision invoked is still inapplicable since what is being sold is only 51% of the outstanding shares of the corporation, not the hotel building nor the land upon which the building stands. Certainly, 51% of the equity of the MHC cannot be considered part of the national patrimony. Moreover, if the disposition of the shares of the MHC is really contrary to the Constitution, petitioner should have questioned it right from the beginning and not after it had lost in the bidding. Fourth, the reliance by petitioner on par. V., subpar. J. 1., of the bidding rules which provides that if for any reason, the Highest Bidder cannot be awarded the Block of Shares, GSIS may offer this to the other Qualified Bidders that have validly submitted bids provided that these Qualified Bidders are willing to match the highest bid in terms of price per share, is misplaced. Respondents postulate that the privilege of submitting a matching bid has not yet arisen since it only takes place if for any reason, the Highest Bidder cannot be awarded the Block of Shares. Thus the submission by petitioner of a matching bid is premature since Renong Berhad could still very well be awarded the block of shares and the condition giving rise to the exercise of the privilege to submit a matching bid had not yet taken place.

Finally, the prayer for prohibition grounded on grave abuse of discretion should fail since respondent GSIS did not exercise its discretion in a capricious, whimsical manner, and if ever it did abuse its discretion it was not so patent and gross as to amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law. Similarly, the petition for mandamus should fail as petitioner has no clear legal right to what it demands and respondents do not have an imperative duty to perform the act required of them by petitioner. We now resolve. A constitution is a system of fundamental laws for the governance and administration of a nation. It is supreme, imperious, absolute and unalterable except by the authority from which it emanates. It has been defined as the fundamental and paramount law of the nation. [10] It prescribes the permanent framework of a system of government, assigns to the different departments their respective powers and duties, and establishes certain fixed principles on which government is founded. The fundamental conception in other words is that it is a supreme law to which all other laws must conform and in accordance with which all private rights must be determined and all public authority administered. [11] Under the doctrine of constitutional supremacy, if a law or contract violates any norm of the constitution that law or contract whether promulgated by the legislative or by the executive branch or entered into by private persons for private purposes is null and void and without any force and effect. Thus, since the Constitution is the fundamental, paramount and supreme law of the nation, it is deemed written in every statute and contract.
x xi

Admittedly, some constitutions are merely declarations of policies and principles. Their provisions command the legislature to enact laws and carry out the purposes of the framers who merely establish an outline of government providing for the different departments of the governmental machinery and securing certain fundamental and inalienable rights of citizens. [12] A provision which lays down a general principle, such as those found in Art. II of the 1987 Constitution, is usually not self-executing. But a provision which is complete in itself and becomes operative without the aid of supplementary or enabling legislation, or that which supplies sufficient rule by means of which the right it grants may be enjoyed or protected, is selfexecuting. Thus a constitutional provision is self-executing if the nature and extent of the right conferred and the liability imposed are fixed by the constitution itself, so that they can be determined by an examination and construction of its terms, and there is no language indicating that the subject is referred to the legislature for action. [13]
xii xiii

As against constitutions of the past, modern constitutions have been generally drafted upon a different principle and have often become in effect extensive codes of laws intended to operate directly upon the people in a manner similar to that of statutory enactments, and the function of constitutional conventions has evolved into one more like that of a legislative body. Hence, unless it is expressly provided that a legislative act is necessary to enforce a constitutional mandate, the presumption now is that all provisions of the constitution are self-executing. If the constitutional provisions are treated as requiring legislation instead of self-executing, the legislature would have the power to ignore and practically nullify the mandate of the fundamental law. [14] This can be cataclysmic. That is why the prevailing view is, as it has always been, that xiv

x x x x in case of doubt, the Constitution should be considered self-executing rather than nonself-executing x x x x Unless the contrary is clearly intended, the provisions of the Constitution should be considered self-executing, as a contrary rule would give the legislature discretion to determine when, or whether, they shall be effective. These provisions would be subordinated to the will of the lawmaking body, which could make them entirely meaningless by simply refusing to pass the needed implementing statute. [15]
xv

Respondents argue that Sec. 10, second par., Art. XII, of the 1987 Constitution is clearly not selfexecuting, as they quote from discussions on the floor of the 1986 Constitutional Commission MR. RODRIGO. Madam President, I am asking this question as the Chairman of the Committee on Style. If the wording of PREFERENCE is given to QUALIFIED FILIPINOS, can it be understood as a preference to qualified Filipinos vis-a-vis Filipinos who are not qualified. So, why do we not make it clear? To qualified Filipinos as against aliens? THE PRESIDENT. What is the question of Commissioner Rodrigo? Is it to remove the word QUALIFIED? MR. RODRIGO. No, no, but say definitely TO QUALIFIED FILIPINOS as against whom? As against aliens or over aliens ? MR. NOLLEDO. Madam President, I think that is understood. We use the word QUALIFIED because the existing laws or prospective laws will always lay down conditions under which business may be done. For example, qualifications on capital, qualifications on the setting up of other financial structures, et cetera (underscoring supplied by respondents). MR. RODRIGO. It is just a matter of style. MR. NOLLEDO. Yes.
xvi

[16]

Quite apparently, Sec. 10, second par., of Art XII is couched in such a way as not to make it appear that it is non-self-executing but simply for purposes of style. But, certainly, the legislature is not precluded from enacting further laws to enforce the constitutional provision so long as the contemplated statute squares with the Constitution. Minor details may be left to the legislature without impairing the self-executing nature of constitutional provisions. In self-executing constitutional provisions, the legislature may still enact legislation to facilitate the exercise of powers directly granted by the constitution, further the operation of such a provision, prescribe a practice to be used for its enforcement, provide a convenient remedy for the protection of the rights secured or the determination thereof, or place reasonable safeguards around the exercise of the right. The mere fact that legislation may supplement and add to or prescribe a penalty for the violation of a self-executing constitutional provision does not render such a provision ineffective in the absence of such legislation. The omission from a constitution of any express provision for a remedy for enforcing a right or liability is not necessarily an indication that it was not intended to be self-executing. The rule is that a self-executing provision of the constitution does not necessarily exhaust legislative power on the subject, but

any legislation must be in harmony with the constitution, further the exercise of constitutional right and make it more available. [17] Subsequent legislation however does not necessarily mean that the subject constitutional provision is not, by itself, fully enforceable.
xvii

Respondents also argue that the non-self-executing nature of Sec. 10, second par., of Art. XII is implied from the tenor of the first and third paragraphs of the same section which undoubtedly are not self-executing. [18] The argument is flawed. If the first and third paragraphs are not selfexecuting because Congress is still to enact measures to encourage the formation and operation of enterprises fully owned by Filipinos, as in the first paragraph, and the State still needs legislation to regulate and exercise authority over foreign investments within its national jurisdiction, as in the third paragraph, then a fortiori, by the same logic, the second paragraph can only be self-executing as it does not by its language require any legislation in order to give preference to qualified Filipinos in the grant of rights, privileges and concessions covering the national economy and patrimony. A constitutional provision may be self-executing in one part and non-self-executing in another. [19]
xviii xix

Even the cases cited by respondents holding that certain constitutional provisions are merely statements of principles and policies, which are basically not self-executing and only placed in the Constitution as moral incentives to legislation, not as judicially enforceable rights - are simply not in point. Basco v. Philippine Amusements and Gaming Corporation [20] speaks of constitutional provisions on personal dignity, [21] the sanctity of family life, [22] the vital role of the youth in nation-building, [23] the promotion of social justice, [24] and the values of education. [25] Tolentino v. Secretary of Finance [26] refers to constitutional provisions on social justice and human rights [27] and on education. [28] Lastly, Kilosbayan, Inc. v. Morato [29] cites provisions on the promotion of general welfare, [30] the sanctity of family life, [31] the vital role of the youth in nation-building [32] and the promotion of total human liberation and development. [33] A reading of these provisions indeed clearly shows that they are not judicially enforceable constitutional rights but merely guidelines for legislation. The very terms of the provisions manifest that they are only principles upon which legislations must be based. Res ipsa loquitur.
xx xxi xxii xxiii xxiv xxv xxvi xxvii xxviii xxx xxix xxxi xxxii xxxiii

On the other hand, Sec. 10, second par., Art. XII of the 1987 Constitution is a mandatory, positive command which is complete in itself and which needs no further guidelines or implementing laws or rules for its enforcement. From its very words the provision does not require any legislation to put it in operation. It is per se judicially enforceable. When our Constitution mandates that [i]n the grant of rights, privileges, and concessions covering national economy and patrimony, the State shall give preference to qualified Filipinos, it means just that qualified Filipinos shall be preferred. And when our Constitution declares that a right exists in certain specified circumstances an action may be maintained to enforce such right notwithstanding the absence of any legislation on the subject; consequently, if there is no statute especially enacted to enforce such constitutional right, such right enforces itself by its own inherent potency and puissance, and from which all legislations must take their bearings. Where there is a right there is a remedy. Ubi jus ibi remedium. As regards our national patrimony, a member of the 1986 Constitutional Commission explains xxxiv

[34]

The patrimony of the Nation that should be conserved and developed refers not only to our rich natural resources but also to the cultural heritage of our race. It also refers to our intelligence in arts, sciences and letters. Therefore, we should develop not only our lands, forests, mines and other natural resources but also the mental ability or faculty of our people. We agree. In its plain and ordinary meaning, the term patrimony pertains to heritage. [35] When the Constitution speaks of national patrimony, it refers not only to the natural resources of the Philippines, as the Constitution could have very well used the term natural resources, but also to the cultural heritage of the Filipinos.
xxxv

Manila Hotel has become a landmark - a living testimonial of Philippine heritage. While it was restrictively an American hotel when it first opened in 1912, it immediately evolved to be truly Filipino. Formerly a concourse for the elite, it has since then become the venue of various significant events which have shaped Philippine history. It was called the Cultural Center of the 1930s. It was the site of the festivities during the inauguration of the Philippine Commonwealth. Dubbed as the Official Guest House of the Philippine Government it plays host to dignitaries and official visitors who are accorded the traditional Philippine hospitality. [36]
xxxvi

The history of the hotel has been chronicled in the book The Manila Hotel: The Heart and Memory of a City. [37] During World War II the hotel was converted by the Japanese Military Administration into a military headquarters. When the American forces returned to recapture Manila the hotel was selected by the Japanese together with Intramuros as the two (2) places for their final stand. Thereafter, in the 1950s and 1960s, the hotel became the center of political activities, playing host to almost every political convention. In 1970 the hotel reopened after a renovation and reaped numerous international recognitions, an acknowledgment of the Filipino talent and ingenuity. In 1986 the hotel was the site of a failed coup d etat where an aspirant for vice-president was proclaimed President of the Philippine Republic.
xxxvii

For more than eight (8) decades Manila Hotel has bore mute witness to the triumphs and failures, loves and frustrations of the Filipinos; its existence is impressed with public interest; its own historicity associated with our struggle for sovereignty, independence and nationhood. Verily, Manila Hotel has become part of our national economy and patrimony. For sure, 51% of the equity of the MHC comes within the purview of the constitutional shelter for it comprises the majority and controlling stock, so that anyone who acquires or owns the 51% will have actual control and management of the hotel. In this instance, 51% of the MHC cannot be disassociated from the hotel and the land on which the hotel edifice stands. Consequently, we cannot sustain respondents claim that the Filipino First Policy provision is not applicable since what is being sold is only 51% of the outstanding shares of the corporation, not the Hotel building nor the land upon which the building stands. [38]
xxxviii

The argument is pure sophistry. The term qualified Filipinos as used in our Constitution also includes corporations at least 60% of which is owned by Filipinos. This is very clear from the proceedings of the 1986 Constitutional Commission THE PRESIDENT. Commissioner Davide is recognized.

MR. DAVIDE. I would like to introduce an amendment to the Nolledo amendment. And the amendment would consist in substituting the words QUALIFIED FILIPINOS with the following: CITIZENS OF THE PHILIPPINES OR CORPORATIONS OR ASSOCIATIONS WHOSE CAPITAL OR CONTROLLING STOCK IS WHOLLY OWNED BY SUCH CITIZENS. xxxx MR. MONSOD. Madam President, apparently the proponent is agreeable, but we have to raise a question. Suppose it is a corporation that is 80-percent Filipino, do we not give it preference? MR. DAVIDE. The Nolledo amendment would refer to an individual Filipino. What about a corporation wholly owned by Filipino citizens? MR. MONSOD. At least 60 percent, Madam President. MR. DAVIDE. Is that the intention? MR. MONSOD. Yes, because, in fact, we would be limiting it if we say that the preference should only be 100-percent Filipino. MR. DAVIDE. I want to get that meaning clear because QUALIFIED FILIPINOS may refer only to individuals and not to juridical personalities or entities. MR. MONSOD. We agree, Madam President.
xxxix

[39]

xxxx MR. RODRIGO. Before we vote, may I request that the amendment be read again. MR. NOLLEDO. The amendment will read: IN THE GRANT OF RIGHTS, PRIVILEGES AND CONCESSIONS COVERING THE NATIONAL ECONOMY AND PATRIMONY, THE STATE SHALL GIVE PREFERENCE TO QUALIFIED FILIPINOS. And the word Filipinos here, as intended by the proponents, will include not only individual Filipinos but also Filipino-controlled entities or entities fully-controlled by Filipinos. [40]
xl

The phrase preference to qualified Filipinos was explained thus MR. FOZ. Madam President, I would like to request Commissioner Nolledo to please restate his amendment so that I can ask a question. MR. NOLLEDO. IN THE GRANT OF RIGHTS, PRIVILEGES AND CONCESSIONS COVERING THE NATIONAL ECONOMY AND PATRIMONY, THE STATE SHALL GIVE PREFERENCE TO QUALIFIED FILIPINOS.

MR. FOZ. In connection with that amendment, if a foreign enterprise is qualified and a Filipino enterprise is also qualified, will the Filipino enterprise still be given a preference? MR. NOLLEDO. Obviously. MR. FOZ. If the foreigner is more qualified in some aspects than the Filipino enterprise, will the Filipino still be preferred? MR. NOLLEDO. The answer is yes. MR. FOZ. Thank you.
xli

[41]

Expounding further on the Filipino First Policy provision Commissioner Nolledo continues MR. NOLLEDO. Yes, Madam President. Instead of MUST, it will be SHALL - THE STATE SHALL GIVE PREFERENCE TO QUALIFIED FILIPINOS. This embodies the socalled Filipino First policy. That means that Filipinos should be given preference in the grant of concessions, privileges and rights covering the national patrimony. [42]
xlii

The exchange of views in the sessions of the Constitutional Commission regarding the subject provision was still further clarified by Commissioner Nolledo [43] xliii

Paragraph 2 of Section 10 explicitly mandates the Pro-Filipino bias in all economic concerns. It is better known as the FILIPINO FIRST Policy x x x x This provision was never found in previous Constitutions x x x x The term qualified Filipinos simply means that preference shall be given to those citizens who can make a viable contribution to the common good, because of credible competence and efficiency. It certainly does NOT mandate the pampering and preferential treatment to Filipino citizens or organizations that are incompetent or inefficient, since such an indiscriminate preference would be counterproductive and inimical to the common good. In the granting of economic rights, privileges, and concessions, when a choice has to be made between a qualified foreigner and a qualified Filipino, the latter shall be chosen over the former. Lastly, the word qualified is also determinable. Petitioner was so considered by respondent GSIS and selected as one of the qualified bidders. It was pre-qualified by respondent GSIS in accordance with its own guidelines so that the sole inference here is that petitioner has been found to be possessed of proven management expertise in the hotel industry, or it has significant equity ownership in another hotel company, or it has an overall management and marketing proficiency to successfully operate the Manila Hotel. [44]
xliv

The penchant to try to whittle away the mandate of the Constitution by arguing that the subject provision is not self-executory and requires implementing legislation is quite disturbing. The attempt to violate a clear constitutional provision - by the government itself - is only too

distressing. To adopt such a line of reasoning is to renounce the duty to ensure faithfulness to the Constitution. For, even some of the provisions of the Constitution which evidently need implementing legislation have juridical life of their own and can be the source of a judicial remedy. We cannot simply afford the government a defense that arises out of the failure to enact further enabling, implementing or guiding legislation. In fine, the discourse of Fr. Joaquin G. Bernas, S.J., on constitutional government is apt The executive department has a constitutional duty to implement laws, including the Constitution, even before Congress acts - provided that there are discoverable legal standards for executive action. When the executive acts, it must be guided by its own understanding of the constitutional command and of applicable laws. The responsibility for reading and understanding the Constitution and the laws is not the sole prerogative of Congress. If it were, the executive would have to ask Congress, or perhaps the Court, for an interpretation every time the executive is confronted by a constitutional command. That is not how constitutional government operates. [45]
xlv

Respondents further argue that the constitutional provision is addressed to the State, not to respondent GSIS which by itself possesses a separate and distinct personality. This argument again is at best specious. It is undisputed that the sale of 51% of the MHC could only be carried out with the prior approval of the State acting through respondent Committee on Privatization. As correctly pointed out by Fr. Joaquin G. Bernas, S.J., this fact alone makes the sale of the assets of respondents GSIS and MHC a state action. In constitutional jurisprudence, the acts of persons distinct from the government are considered state action covered by the Constitution (1) when the activity it engages in is a public function; (2) when the government is so significantly involved with the private actor as to make the government responsible for his action; and, (3) when the government has approved or authorized the action. It is evident that the act of respondent GSIS in selling 51% of its share in respondent MHC comes under the second and third categories of state action. Without doubt therefore the transaction, although entered into by respondent GSIS, is in fact a transaction of the State and therefore subject to the constitutional command. [46]
xlvi

When the Constitution addresses the State it refers not only to the people but also to the government as elements of the State. After all, government is composed of three (3) divisions of power - legislative, executive and judicial. Accordingly, a constitutional mandate directed to the State is correspondingly directed to the three (3) branches of government. It is undeniable that in this case the subject constitutional injunction is addressed among others to the Executive Department and respondent GSIS, a government instrumentality deriving its authority from the State. It should be stressed that while the Malaysian firm offered the higher bid it is not yet the winning bidder. The bidding rules expressly provide that the highest bidder shall only be declared the winning bidder after it has negotiated and executed the necessary contracts, and secured the requisite approvals. Since the Filipino First Policy provision of the Constitution bestows preference on qualified Filipinos the mere tending of the highest bid is not an assurance that the highest bidder will be declared the winning bidder. Resultantly, respondents are not bound to make the award yet, nor are they under obligation to enter into one with the highest bidder. For

in choosing the awardee respondents are mandated to abide by the dictates of the 1987 Constitution the provisions of which are presumed to be known to all the bidders and other interested parties. Adhering to the doctrine of constitutional supremacy, the subject constitutional provision is, as it should be, impliedly written in the bidding rules issued by respondent GSIS, lest the bidding rules be nullified for being violative of the Constitution. It is a basic principle in constitutional law that all laws and contracts must conform with the fundamental law of the land. Those which violate the Constitution lose their reason for being. Paragraph V. J. 1 of the bidding rules provides that [i]f for any reason the Highest Bidder cannot be awarded the Block of Shares, GSIS may offer this to other Qualified Bidders that have validly submitted bids provided that these Qualified Bidders are willing to match the highest bid in terms of price per share. [47] Certainly, the constitutional mandate itself is reason enough not to award the block of shares immediately to the foreign bidder notwithstanding its submission of a higher, or even the highest, bid. In fact, we cannot conceive of a stronger reason than the constitutional injunction itself.
xlvii

In the instant case, where a foreign firm submits the highest bid in a public bidding concerning the grant of rights, privileges and concessions covering the national economy and patrimony, thereby exceeding the bid of a Filipino, there is no question that the Filipino will have to be allowed to match the bid of the foreign entity. And if the Filipino matches the bid of a foreign firm the award should go to the Filipino. It must be so if we are to give life and meaning to the Filipino First Policy provision of the 1987 Constitution. For, while this may neither be expressly stated nor contemplated in the bidding rules, the constitutional fiat is omnipresent to be simply disregarded. To ignore it would be to sanction a perilous skirting of the basic law. This Court does not discount the apprehension that this policy may discourage foreign investors. But the Constitution and laws of the Philippines are understood to be always open to public scrutiny. These are given factors which investors must consider when venturing into business in a foreign jurisdiction. Any person therefore desiring to do business in the Philippines or with any of its agencies or instrumentalities is presumed to know his rights and obligations under the Constitution and the laws of the forum. The argument of respondents that petitioner is now estopped from questioning the sale to Renong Berhad since petitioner was well aware from the beginning that a foreigner could participate in the bidding is meritless. Undoubtedly, Filipinos and foreigners alike were invited to the bidding. But foreigners may be awarded the sale only if no Filipino qualifies, or if the qualified Filipino fails to match the highest bid tendered by the foreign entity. In the case before us, while petitioner was already preferred at the inception of the bidding because of the constitutional mandate, petitioner had not yet matched the bid offered by Renong Berhad. Thus it did not have the right or personality then to compel respondent GSIS to accept its earlier bid. Rightly, only after it had matched the bid of the foreign firm and the apparent disregard by respondent GSIS of petitioners matching bid did the latter have a cause of action.

Besides, there is no time frame for invoking the constitutional safeguard unless perhaps the award has been finally made. To insist on selling the Manila Hotel to foreigners when there is a Filipino group willing to match the bid of the foreign group is to insist that government be treated as any other ordinary market player, and bound by its mistakes or gross errors of judgment, regardless of the consequences to the Filipino people. The miscomprehension of the Constitution is regrettable. Thus we would rather remedy the indiscretion while there is still an opportunity to do so than let the government develop the habit of forgetting that the Constitution lays down the basic conditions and parameters for its actions. Since petitioner has already matched the bid price tendered by Renong Berhad pursuant to the bidding rules, respondent GSIS is left with no alternative but to award to petitioner the block of shares of MHC and to execute the necessary agreements and documents to effect the sale in accordance not only with the bidding guidelines and procedures but with the Constitution as well. The refusal of respondent GSIS to execute the corresponding documents with petitioner as provided in the bidding rules after the latter has matched the bid of the Malaysian firm clearly constitutes grave abuse of discretion. The Filipino First Policy is a product of Philippine nationalism. It is embodied in the 1987 Constitution not merely to be used as a guideline for future legislation but primarily to be enforced; so must it be enforced. This Court as the ultimate guardian of the Constitution will never shun, under any reasonable circumstance, the duty of upholding the majesty of the Constitution which it is tasked to defend. It is worth emphasizing that it is not the intention of this Court to impede and diminish, much less undermine, the influx of foreign investments. Far from it, the Court encourages and welcomes more business opportunities but avowedly sanctions the preference for Filipinos whenever such preference is ordained by the Constitution. The position of the Court on this matter could have not been more appropriately articulated by Chief Justice Narvasa As scrupulously as it has tried to observe that it is not its function to substitute its judgment for that of the legislature or the executive about the wisdom and feasibility of legislation economic in nature, the Supreme Court has not been spared criticism for decisions perceived as obstacles to economic progress and development x x x x in connection with a temporary injunction issued by the Courts First Division against the sale of the Manila Hotel to a Malaysian Firm and its partner, certain statements were published in a major daily to the effect that that injunction again demonstrates that the Philippine legal system can be a major obstacle to doing business here. Let it be stated for the record once again that while it is no business of the Court to intervene in contracts of the kind referred to or set itself up as the judge of whether they are viable or attainable, it is its bounden duty to make sure that they do not violate the Constitution or the laws, or are not adopted or implemented with grave abuse of discretion amounting to lack or excess of jurisdiction. It will never shirk that duty, no matter how buffeted by winds of unfair and ill-informed criticism. [48]
xlviii

Privatization of a business asset for purposes of enhancing its business viability and preventing further losses, regardless of the character of the asset, should not take precedence over non-

material values. A commercial, nay even a budgetary, objective should not be pursued at the expense of national pride and dignity. For the Constitution enshrines higher and nobler nonmaterial values. Indeed, the Court will always defer to the Constitution in the proper governance of a free society; after all, there is nothing so sacrosanct in any economic policy as to draw itself beyond judicial review when the Constitution is involved. [49]
xlix

Nationalism is inherent in the very concept of the Philippines being a democratic and republican state, with sovereignty residing in the Filipino people and from whom all government authority emanates. In nationalism, the happiness and welfare of the people must be the goal. The nationstate can have no higher purpose. Any interpretation of any constitutional provision must adhere to such basic concept. Protection of foreign investments, while laudible, is merely a policy. It cannot override the demands of nationalism. [50]
l

The Manila Hotel or, for that matter, 51% of the MHC, is not just any commodity to be sold to the highest bidder solely for the sake of privatization. We are not talking about an ordinary piece of property in a commercial district. We are talking about a historic relic that has hosted many of the most important events in the short history of the Philippines as a nation. We are talking about a hotel where heads of states would prefer to be housed as a strong manifestation of their desire to cloak the dignity of the highest state function to their official visits to the Philippines. Thus the Manila Hotel has played and continues to play a significant role as an authentic repository of twentieth century Philippine history and culture. In this sense, it has become truly a reflection of the Filipino soul - a place with a history of grandeur; a most historical setting that has played a part in the shaping of a country. [51]
li

This Court cannot extract rhyme nor reason from the determined efforts of respondents to sell the historical landmark - this Grand Old Dame of hotels in Asia - to a total stranger. For, indeed, the conveyance of this epic exponent of the Filipino psyche to alien hands cannot be less than mephistophelian for it is, in whatever manner viewed, a veritable alienation of a nations soul for some pieces of foreign silver. And so we ask: What advantage, which cannot be equally drawn from a qualified Filipino, can be gained by the Filipinos if Manila Hotel - and all that it stands for - is sold to a non-Filipino? How much of national pride will vanish if the nations cultural heritage is entrusted to a foreign entity? On the other hand, how much dignity will be preserved and realized if the national patrimony is safekept in the hands of a qualified, zealous and wellmeaning Filipino? This is the plain and simple meaning of the Filipino First Policy provision of the Philippine Constitution. And this Court, heeding the clarion call of the Constitution and accepting the duty of being the elderly watchman of the nation, will continue to respect and protect the sanctity of the Constitution. WHEREFORE, respondents GOVERNMENT SERVICE INSURANCE SYSTEM, MANILA HOTEL CORPORATION, COMMITTEE ON PRIVATIZATION and OFFICE OF THE GOVERNMENT CORPORATE COUNSEL are directed to CEASE and DESIST from selling 51% of the shares of the Manila Hotel Corporation to RENONG BERHAD, and to ACCEPT the matching bid of petitioner MANILA PRINCE HOTEL CORPORATION to purchase the subject 51% of the shares of the Manila Hotel Corporation at P44.00 per share and thereafter to execute the necessary agreements and documents to effect the sale, to issue the necessary clearances and to do such other acts and deeds as may be necessary for the purpose.

SO ORDERED. G.R. No. 118910 November 16, 1995 KILOSBAYAN, INCORPORATED, JOVITO R. SALONGA, CIRILO A. RIGOS, ERME CAMBA, EMILIO C. CAPULONG, JR., JOSE T. APOLO, EPHRAIM TENDERO, FERNANDO SANTIAGO, JOSE ABCEDE, CHRISTINE TAN, RAFAEL G. FERNANDO, RAOUL V. VICTORINO, JOSE CUNANAN, QUINTIN S. DOROMAL, SEN. FREDDIE WEBB, SEN. WIGBERTO TAADA, REP. JOKER P. ARROYO, petitioners, vs. MANUEL L. MORATO, in his capacity as Chairman of the Philippine Charity Sweepstakes Office, and the PHILIPPINE GAMING MANAGEMENT CORPORATION, respondents. RESOLUTION

MENDOZA, J.: Petitioners seek reconsideration of our decision in this case. They insist that the decision in the first case has already settled (1) whether petitioner Kilosbayan, Inc. has a standing to sue and (2) whether under its charter (R.A. No. 1169, as amended) the Philippine Charity Sweepstakes Office can enter into any form of association or collaboration with any party in operating an on-line lottery. Consequently, petitioners contend, these questions can no longer be reopened. Because two members of the Court did not consider themselves bound by the decision in the first case, petitioners suggest that the two, in joining the dissenters in the first case in reexamining the questions in the present case, acted otherwise than according to law. They cite the following statement in the opinion of the Court:
The voting on petitioners' standing in the previous case was a narrow one, with seven (7) members sustaining petitioners' standing and six (6) denying petitioners' right to bring the suit. The majority was thus a tenuous one that is not likely to be maintained in any subsequent litigation. In addition, there have been changes in the membership of the Court, with the retirement of Justices Cruz and Bidin and the appointment of the writer of this opinion and Justice Francisco. Given this fact it is hardly tenable to insist on the maintenance of the ruling as to petitioners' standing.

Petitioners claim that this statement "conveys a none too subtle suggestion, perhaps a Freudian slip, that the two new appointees, regardless of the merit of the Decision in the first Kilosbayan case against the lotto (Kilosbayan, et al. v. Guingona, 232 SCRA 110 (1994)) must of necessity align themselves with all the Ramos appointees who were dissenters in the first case and constitute the new majority in the second lotto case." And petitioners ask, " why should it be so?"

Petitioners ask a question to which they have made up an answer. Their attempt at psychoanalysis, detecting a Freudian slip where none exists, may be more revealing of their own unexpressed wish to find motives where there are none which they can impute to some members of the Court. For the truth is that the statement is no more than an effort to explain rather than to justify the majority's decision to overrule the ruling in the previous case. It is simply meant to explain that because the five members of the Court who dissented in the first case (Melo, Quiason, Puno, Vitug and Kapunan, JJ.) and the two new members (Mendoza and Francisco, JJ.) thought the previous ruling to be erroneous and its reexamination not to be barred by stare decisis, res judicata or conclusiveness of judgment, or law of the case, it was hardly tenable for petitioners to insist on the first ruling. Consequently to petitioners' question " What is the glue that holds them together," implying some ulterior motives on the part of the new majority in reexamining the two questions, the answer is: None, except a conviction on the part of the five, who had been members of the Court at the time they dissented in the first case, and the two new members that the previous ruling was erroneous. The eighth Justice (Padilla, J.) on the other hand agrees with the seven Justices that the ELA is in a real sense a lease agreement and therefore does not violate R.A. No. 1169. The decision in the first case was a split decision: 7-6. With the retirement of one of the original majority (Cruz, J.) and one of the dissenters (Bidin, J.) it was not surprising that the first decision in the first case was later reversed. It is argued that, in any case, a reexamination of the two questions is barred because the PCSO and the Philippine Gaming Management Corporation made a " formal commitment not to ask for a reconsideration of the Decision in the first lotto case and instead submit a new agreement that would be in conformity with the PCSO Charter (R.A. No. 1169, as amended) and with the Decision of the Supreme Court in the first Kilosbayan case against on-line, hi-tech lotto." To be sure, a new contract was entered into which the majority of the Court finds has been purged of the features which made the first contract objectionable. Moreover, what the PCSO said in its manifestation in the first case was the following:
1. They are no longer filing a motion for reconsideration of the Decision of this Honorable Court dated May 5, 1994, a copy of which was received on May 6, 1994. 2. Respondents PCSO and PGMC are presently negotiating a new lease agreement consistent with the authority of PCSO under its charter (R.A. No. 1169, as amended by B.P. Blg. 42) and conformable with the pronouncements of this Honorable Court in its Decision of May 5, 1995.

The PGMC made substantially the same manifestation as the PCSO.

There was thus no "formal commitment" but only a manifestation that the parties were not filing a motion for reconsideration. Even if the parties made a "formal commitment," the six (6) dissenting Justices certainly could not be bound thereby not to insist on their contrary view on the question of standing. Much less were the two new members bound by any "formal commitment" made by the parties. They believed that the ruling in the first case was erroneous. Since in their view reexamination was not barred by the doctrine of stare decisis, res judicata or conclusiveness of judgment or law of the case, they voted the way they did with the remaining five (5) dissenters in the first case to form a new majority of eight. Petitioners ask, "Why should this be so?" Because, as explained in the decision, the first decision was erroneous and no legal doctrine stood in the way of its reexamination. It can, therefore, be asked "with equal candor": "Why should this not be so?" Nor is this the first time a split decision was tested, if not reversed, in a subsequent case because of change in the membership of a court. In 1957, this Court, voting 6-5, held in Feliciano v. Aquinas, G.R. No. L-10201, Sept. 23, 1957 that the phrase "at the time of the election" in 2174 of the Revised Administrative Code of 1917 meant that a candidate for municipal elective position must be at least 23 years of age on the date of the election. On the other hand, the dissenters argued that it was enough if he attained that age on the day he assumed office. Less than three years later, the same question was before the Court again, as a candidate for municipal councilor stated under oath in her certificate of candidacy that she was eligible for that position although she attained the requisite age (23 years) only when she assumed office. The question was whether she could be prosecuted for falsification. In People v. Yang, 107 Phi. 888 (1960), the Court ruled she could not. Justice, later Chief Justice, Benison, who dissented in the first case, Feliciano v. Aquinas, supra, wrote the opinion of the Court, holding that while the statement that the accused was eligible was "inexact or erroneous, according to the majority in the Feliciano case," the accused could not be held liable for falsification, because
the question [whether the law really required candidates to have the required age on the day of the election or whether it was sufficient that they attained it at the beginning of the term of office] has not been discussed anew, despite the presence of new members; we simply assume for the purpose of this decision that the doctrine stands.

Thus because in the meantime there had been a change in the membership of the Court with the retirement of two members (Recess and Flex, JJ.) who had taken part in the decision in the first case and their replacement by new members (Barrera and Gutierrez-David, JJ.) and the fact that the vote in the first case was a narrow one (6 to 5), the Court allowed that the continuing validity of its ruling in the first case might well be doubted. For this reason it gave the accused the benefit of the doubt that she had acted in the good faith belief that it was sufficient that she was 23 years of age when she assumed office.

In that case, the change in the membership of the Court and the possibility of change in the ruling were noted without anyone much less would-be psychoanalysts finding in the statement of the Court any Freudian slip. The possibility of change in the rule as a result of change in membership was accepted as a sufficient reason for finding good faith and lack of criminal intent on the part of the accused. Indeed, a change in the composition of the Court could prove the means of undoing an erroneous decision. This was the lesson of Knox v. Lee, 12 Wall. 457 (1871). The Legal Tender Acts, which were passed during the Civil War, made U.S. notes (greenbacks) legal tender for the payment of debts, public or private, with certain exceptions. The validity of the acts, as applied to preexisting debts, was challenged in Hepburn v. Griswold, 8 Wall. 603 (1869). The Court was then composed of only eight (8) Justices because of Congressional effort to limit the appointing power of President Johnson. Voting 5-3, the Court declared the acts void. Chief Justice Chase wrote the opinion of the Court in which four others, including Justice Grier, concurred. Justices Miller, Swayne and Davis dissented. A private memorandum left by the dissenting Justices described how an effort was made "to convince an aged and infirm member of the court [Justice Grier] that he had not understood the question on which he voted," with the result that what was originally a 4-4 vote was converted into a majority (5-3) for holding the acts invalid. On the day the decision was announced, President Grant nominated to the Court William Strong and Joseph P. Bradley to fill the vacancy caused by the resignation of Justice Grier and to restore the membership of the Court to nine. In 1871, Hepburn v. Griswold was overruled in the Legal Tender Cases, as Knox v. Lee came to be known, in an opinion by Justice Strong, with a dissenting opinion by Chief Justice Chase and the three other surviving members of the former majority. There were allegations that the new Justices were appointed for their known views on the validity of the Legal Tender Acts, just as there were others who defended the character and independence of the new Justices. History has vindicated the overruling of the Hepburn case by the new majority. The Legal Tender Cases proved to be the Court's means of salvation from what Chief Justice Hughes later described as one of the Court's "self-inflicted wounds." 1 We now consider the specific grounds for petitioners' motion for reconsideration. I. We have held that because there are no genuine issues of constitutionality in this case, the rule concerning real party in interest, applicable to private litigation rather than the more liberal rule on standing, applies to petitioners. Two objections are made against that ruling: (1) that the constitutional policies and principles invoked by petitioners, while not supplying the basis for affirmative relief from the courts, may nonetheless be resorted to for striking down laws or official actions which are inconsistent with them and (2) that the Constitution, by guaranteeing to independent people's organizations "effective and reasonable participation at all levels of social, political and economic decision-making" (Art. XIII, 16), grants them standing to sue on constitutional grounds.

The policies and principles of the Constitution invoked by petitioner read:

Art. II, 5. The maintenance of peace and order, the protection life, liberty, and property, and the promotion of the general welfare are essential for the enjoyment by all the people of the blessings of democracy. Id., 12. The natural and primary right and duty of parents in the rearing of the youth for civic efficiency and the development of moral character shall receive the support of the Government. Id., 13. The State recognizes the vital role of the youth in nation-building and shall promote and protect their physical, moral, spiritual, intellectual, and social well-being. It shall inculcate in the youth patriotism and nationalism, and encourage their involvement in public and civic affairs. Id., 17. The State shall give priority to education, science and technology, arts, culture, and sports to foster patriotism and nationalism, accelerate social progress, and promote total human liberation and development.

As already stated, however, these provisions are not self-executing. They do not confer rights which can be enforced in the courts but only provide guidelines for legislative or executive action. By authorizing the holding of lottery for charity, Congress has in effect determined that consistently with these policies and principles of the Constitution, the PCSO may be given this authority. That is why we said with respect to the opening by the PAGCOR of a casino in Cagayan de Oro, "the morality of gambling is not a justiciable issue. Gambling is not illegal per se. . . . It is left to Congress to deal with the activity as it sees fit." (Magtajas v. Pryce Properties Corp., Inc., 234 SCRA 255, 268 [1994]). It is noteworthy that petitioners do not question the validity of the law allowing lotteries. It is the contract entered into by the PCSO and the PGMC which they are assailing. This case, therefore, does not raise issues of constitutionality but only of contract law, which petitioners, not being privies to the agreement, cannot raise. Nor does Kilosbayan's status as a people's organization give it the requisite personality to question the validity of the contract in this case. The Constitution provides that "the State shall respect the role of independent people's organizations to enable the people to pursue and protect, within the democratic framework, their legitimate and collective interests and aspirations through peaceful and lawful means," that their right to "effective and reasonable participation at all levels of social, political, and economic decision-making shall not be abridged." (Art. XIII, 15-16) These provisions have not changed the traditional rule that only real parties in interest or those with standing, as the case may be, may invoke the judicial power. The jurisdiction of this Court, even in cases involving constitutional questions, is limited by the "case and controversy" requirement of Art. VIII, 5. This requirement lies at the very heart of the judicial function. It is what differentiates decision-making in the courts from decision-making in the political departments of the government and bars the bringing of suits by just any party.

Petitioners quote extensively from the speech of Commissioner Garcia before the Constitutional Commission, explaining the provisions on independent people's organizations. There is nothing in the speech, however, which supports their claim of standing. On the contrary, the speech points the way to the legislative and executive branches of the government, rather than to the courts, as the appropriate fora for the advocacy of petitioners' views. 2 Indeed, the provisions on independent people's organizations may most usefully be read in connection with the provision on initiative and referendum as a means whereby the people may propose or enact laws or reject any of those passed by Congress. For the fact is that petitioners' opposition to the contract in question is nothing more than an opposition to the government policy on lotteries. It is nevertheless insisted that this Court has in the past accorded standing to taxpayers and concerned citizens in cases involving "paramount public interest." Taxpayers, voters, concerned citizens and legislators have indeed been allowed to sue but then only (1) in cases involving constitutional issues and (2) under certain conditions. Petitioners do not meet these requirements on standing. Taxpayers are allowed to sue, for example, where there is a claim of illegal disbursement of public funds. (Pascual v. Secretary of Public Works, 110 Phi. 331 (1960); Sanidad v. Comelec, 73 SCRA 333 (1976); Bugnay Const. & Dev. v. Laron, 176 SCRA 240 (1989); City Council of Cebu v. Cuizon, 47 SCRA 325 [1972]) or where a tax measure is assailed as unconstitutional. (VAT Cases [Tolentino v. Secretary of Finance], 235 SCRA 630 [1994]) Voters are allowed to question the validity of election laws because of their obvious interest in the validity of such laws. (Gonzales v. Comelec, 21 SCRA 774 [1967]) Concerned citizens can bring suits if the constitutional question they raise is of "transcendental importance" which must be settled early. (Emergency Powers Cases [Araneta v. Dinglasan], 84 Phi. 368 (1949); Iloilo Palay and Corn Planters Ass'n v. Feliciano, 121 Phi. 358 (1965); Philconsa v. Gimenez, 122 Phi. 894 (1965); CLU v. Executive Secretary, 194 SCRA 317 [1991]) Legislators are allowed to sue to question the validity of any official action which they claim infringes their prerogatives qua legislators. (Philconsa v. Enriquez, 235 506 (1994); Guingona v. PCGG, 207 SCRA 659 (1992); Gonzales v. Macaraig, 191 SCRA 452 (1990); Tolentino v. Comelec, 41 SCRA 702 (1971); Tatad v. Garcia, G.R. No. 114222, April 16, 1995 (Mendoza, J., concurring)) Petitioners do not have the same kind of interest that these various litigants have. Petitioners assert an interest as taxpayers, but they do not meet the standing requirement for bringing taxpayer's suits as set forth in Dumlao v. Comelec, 95 SCRA 392, 403 (1980), to wit:
While, concededly, the elections to be held involve the expenditure of public moneys, nowhere in their Petition do said petitioners allege that their tax money is "being extracted and spent in violation of specific constitutional protections against abuses of legislative power" (Flast v. Cohen, 392 U.S., 83 [1960]), or that there is a misapplication of such funds by respondent COMELEC (see Pascual vs. Secretary of Public Works, 110 Phil. 331 [1960]), or that public money is being deflected to any improper purpose. Neither do petitioners seek to restrain respondent from wasting public funds through the

enforcement of an invalid or unconstitutional law. (Philippine Constitution Association vs. Mathay, 18 SCRA 300 [1966]), citing Philippine Constitution Association vs. Gimenez, 15 SCRA 479 [1965]). Besides, the institution of a taxpayer's suit, per se, is no assurance of judicial review. As held by this Court in Tan vs. Macapagal (43 SCRA 677 [1972]), speaking through our present Chief Justice, this Court is vested with discretion as to whether or not a taxpayer's suit should be entertained. (Emphasis added)

Petitioners' suit does not fall under any of these categories of taxpayers' suits. Neither do the other cases cited by petitioners support their contention that taxpayers have standing to question government contracts regardless of whether public funds are involved or not. In Gonzales v. National Housing, Corp., 94 SCRA 786 (1979), petitioner filed a taxpayer's suit seeking the annulment of a contract between the NHC and a foreign corporation. The case was dismissed by the trial court. The dismissal was affirmed by this Court on the grounds of res judicata and pendency of a prejudicial question, thus avoiding the question of petitioner's standing. On the other hand, in Gonzales v. Raquiza, 180 SCRA 254 (1989), petitioner sought the annulment of a contract made by the government with a foreign corporation for the purchase of road construction equipment. The question of standing was not discussed, but even if it was, petitioner's standing could be sustained because he was a minority stockholder of the Philippine National Bank, which was one of the defendants in the case. In the other case cited by petitioners, City Council of Cebu v. Cuizon, 47 SCRA 325 (1972), members of the city council were allowed to sue to question the validity of a contract entered into by the city government for the purchase of road construction equipment because their contention was that the contract had been made without their authority. In addition, as taxpayers they had an interest in seeing to it that public funds were spent pursuant to an appropriation made by law. But, in the case at bar, there is an allegation that public funds are being misapplied or misappropriated. The controlling doctrine is that of Gonzales v. Marcos, 65 SCRA 624 (1975) where it was held that funds raised from contributions for the benefit of the Cultural Center of the Philippines were not public funds and petitioner had no standing to bring a taxpayer's suit to question their disbursement by the President of the Philippines. Thus, petitioners' right to sue as taxpayers cannot be sustained. Nor as concerned citizens can they bring this suit because no specific injury suffered by them is alleged. As for the petitioners, who are members of Congress, their right to sue as legislators cannot be invoked because they do not complain of any infringement of their rights as legislators. Finally, in Valmonte v. PCSO, G.R. No. 78716, September 22, 1987, we threw out a petition questioning another form of lottery conducted by the PCSO on the ground that petitioner, who claimed to be a "citizen, lawyer, taxpayer and father of three minor

children," had no direct and personal interest in the lottery. We said: "He must be able to show, not only that the law is invalid, but also that he has sustained or is in immediate 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 complained of." In the case at bar, petitioners have not shown why, unlike petitioner in the Valmonte case, they should be accorded standing to bring this suit. The case of Oposa v. Factoran, Jr. 224 SCRA 792 (1993) is different. Citizens' standing to bring a suit seeking the cancellation of timber licenses was sustained in that case because the Court considered Art. II, 16 a right-conferring provision which can be enforced in the courts. That provision states:
The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature. (Emphasis)

In contrast, the policies and principles invoked by petitioners in this case do not permit of such categorization. Indeed, as already stated, petitioners' opposition is not really to the validity of the ELA but to lotteries which they regard to be immoral. This is not, however, a legal issue, but a policy matter for Congress to decide and Congress has permitted lotteries for charity. Nevertheless, although we have concluded that petitioners do not have standing, we have not stopped there and dismissed their case. For in the view we take, whether a party has a cause of action and, therefore, is a real party in interest or one with standing to raise a constitutional question must turn on whether he has a right which has been violated. For this reason the Court has not ducked the substantive issues raised by petitioners. II. R.A. No. 1169, as amended by B.P No . 42, states:
1. The Philippine Charity Sweepstakes Office. The Philippine Charity Sweepstakes Office, hereinafter designated the Office, shall be the principal government agency for raising and providing for funds for health programs, medical assistance and services and charities of national character, and as such shall have the general powers conferred in section thirteen of Act Numbered One Thousand Four Hundred Fifty-Nine, as amended, and shall have the authority: A. To hold and conduct charity sweepstakes races, lotteries and other similar activities, in such frequency and manner, as shall be determined, and subject to such rules and regulations as shall be promulgated by the Board of Directors. B. Subject to the approval of the Minister of Human Settlements, to engage in health and welfare-related investments, programs, projects and activities which may be profitoriented, by itself or in collaboration, association or joint venture with any person, association, company or entity, whether domestic or foreign, except for the activities

mentioned in the preceding paragraph (A), for the purpose of providing for permanent and continuing sources of funds for health programs, including the expansion of existing ones, medical assistance and services, and/or charitable grants: Provided, That such investments will not compete with the private sector in areas where investments are adequate as may be determined by the National Economic and Development Authority.

Petitioners insist on the ruling in the previous case that the PCSO cannot hold and conduct charity sweepstakes, lotteries and other similar activities in collaboration, association or joint venture with any other party because of the clause "except for the activities mentioned in the preceding paragraph (A)" in paragraph (B) of 1. Petitioners contend that the ruling is the law of this case because the parties are the same and the case involves the same issue, i.e., the meaning of this statutory provision. The "law of the case" doctrine is inapplicable, because this case is not a continuation of the first one. Petitioners also say that inquiry into the same question as to the meaning of the statutory provision is barred by the doctrine of res judicata. The general rule on the "conclusiveness of judgment," however, is subject to the e xception that a question may be reopened if it is a legal question and the two actions involve substantially different claims. This is generally accepted in American law from which our Rules of Court was adopted. (Montana v. United States, 440 U.S. 59 L.Ed.2d 147, 210 (1979); RESTATEMENT OF THE LAW 2d, ON JUDGMENTS, 28; P. BATOR, D. MELTZER, P. MISHKIN AND D. SHAPIRO, THE FEDERAL COURTS AND THE FEDERAL SYSTEM 1058, n.2 [3rd Ed., 1988]) There is nothing in the record of this case to suggest that this exception is inapplicable in this jurisdiction. Indeed, the questions raised in this case are legal questions and the claims involved are substantially different from those involved in the prior case between the parties. As already stated, the ELA is substantially different from the Contract of Lease declared void in the first case. Borrowing from the dissenting opinion of Justice Feliciano, petitioners argue that the phrase "by itself or in collaboration, association or joint venture with any other party" qualifies not only 1 (B) but also 1 (A), because the exception clause ("except for the activities mentioned in the preceding paragraph [A]") "operates, as it were, as a renvoi clause which refers back to Section 1(A) and in this manner avoids the necessity of simultaneously amending the text of Section 1(A)." This interpretation, however, fails to take into account not only the location of the phrase in paragraph (B), when it should be in paragraph (A) had that been the intention of the lawmaking authority, but also the phrase "by itself." In other words, under paragraph (B), the PCSO is prohibited from "engag[ing] in . . . investments, programs, projects and activities" if these involve sweepstakes races, lotteries and other similar activities not only "in collaboration, association or joint venture" with any other party but also "by itself." Obviously, this prohibition cannot apply when the PCSO conducts these activities itself. Otherwise, what paragraph (A) authorizes the PCSO to do, paragraph (B) would prohibit.

The fact is that the phrase in question does not qualify the authority of the PCSO under paragraph (A), but rather the authority granted to it by paragraph (B). The amendment of paragraph (B) by B.P. Blg. 42 was intended to enable the PCSO to engage in certain investments, programs, projects and activities for the purpose of raising funds for health programs and charity. That is why the law provides that such investments by the PCSO should "not compete with the private sector in areas where investments are adequate as may be determined by the National Economic and Development Authority." Justice Davide, then an Assemblyman, made a proposal which was accepted, reflecting the understanding that the bill they were discussing concerned the authority of the PCSO to invest in the business of others. The following excerpt from the Record of the Batasan Pambansa shows this to be the subject of the discussion:
MR. DAVIDE. May I introduce an amendment after "adequate". The intention of the amendment is not to leave the determination of whether it is adequate or not to anybody. And my amendment is to add after "adequate" the words AS MAY BE DETERMINED BY THE NATIONAL ECONOMIC AND DEVELOPMENT AUTHORITY. As a mater of fact, it will strengthen the authority to invest in these areas, provided that the determination of whether the private sector's activity is already adequate must be determined by the National Economic and Development Authority. Mr. ZAMORA. Mr. Speaker, the committee accepts the proposed amendment. MR. DAVIDE. Thank you, Mr. Speaker. (2 RECORD OF THE BATASAN PAMBANSA, Sept. 6, 1979, p. 1007)

Thus what the PCSO is prohibited from doing is from investing in a business engaged in sweepstakes races, lotteries and other similar activities. It is prohibited from doing so whether "in collaboration, association or joint venture " with others or "by itself." This seems to be the only possible interpretation of 1 (A) and (B) in light of its text and its legislative history. That there is today no other entity engaged in sweepstakes races, lotteries and the like does not detract from the validity of this interpretation. III. The Court noted in its decision that the provisions of the first contract, which were considered to be features of a joint venture agreement, had been removed in the new contract. For instance, 5 of the ELA provides that in the operation of the on-line lottery, the PCSO must employ "its own competent and qualified personnel." Petitioners claim, however, that the "contemporaneous interpretation" of PGMC officials of this provision is otherwise. They cite the testimony of Glen Barroga of the PGMC before a Senate committee to the effect that under the ELA the PGMC would be operating the lottery system "side by side" with PCSO personnel as part of the transfer of technology. Whether the transfer of technology would result in a violation of PCSO's franchise should be determined by facts and not by what some officials of the PGMC state by way of opinion. In the absence of proof to the contrary, it must be presumed that 5 reflects the true intention of the parties. Thus, Art. 1370 of the Civil Code says that "If the terms of a contract are clear and leave no doubt upon the intention of the contracting parties,

the literal meaning of its stipulations shall control." The intention of the parties must be ascertained from their "contemporaneous and subsequent acts." (Art. 1371; Atlantic Gulf Co. v. Insular Government, 10 Phil. 166 [1908]) It cannot simply be judged from what one of them says. On the other hand, the claim of third parties, like petitioners, that the clause on upgrading of equipment would enable the parties after a while to change the contract and enter into something else in violation of the law is mere speculation and cannot be a basis for judging the validity of the contract. IV. It is contended that 1 of E.O. No. 301 covers all types of " contract[s] for public services or for furnishing of supplies, materials and equipment to the government or to any of its branches, agencies or instrumentalities" and not only contracts of purchase and sale. Consequently, a lease of equipment, like the ELA, must be submitted to public bidding in order to be valid. This contention is based on two premises: (1) that 1 of E.O. No. 301 applies to any contract whereby the government acquires title to or the use of the equipment and (2) that the words "supplies," "materials," and "equipment" are distinct from each other so that when an exception in 1 speaks of "supplies," it cannot be construed to mean "equipment." Petitioners' contention will not bear analysis. For example, the term "supplies" is used in paragraph (a), which provides that a contract for the furnishing of "supplies" in order to meet an emergency is exempt from public bidding. Unless "supplies" is construed to include "equipment," however, the lease of heavy equipment needed for rescue operations in case of a calamity will have to be submitted to public bidding before it can be entered into by the government. In dissent Justice Feliciano says that in such a situation the government can simply resort to expropriation, paying compensation afterward. This is just like purchasing the equipment through negotiation when the question is whether the purchase should be by public bidding, not to mention the fact that the power to expropriate may not be exercised when the government can very well negotiate with private owners. Indeed, there are fundamental difficulties in simultaneously contending (1) that E.O. No. 301, 1 covers both contracts of sale and lease agreements and (2) that the words "supplies," "materials" and "equipment" can not be interchanged. Thus, under paragraph (b) of 1, public bidding is not required "whenever the supplies are to be used in connection with a project or activity which cannot be delayed without causing detriment to the public service." Following petitioners' theory, there should be a public bidding before the government can enter into a contract for the lease of bulldozers and dredging equipment even if these are urgently needed in areas ravaged by lahar because, first, lease contracts are covered by the general rule and, second, the exception to public bidding in paragraph (b) covers only "supplies" but not equipment. To take still another example. Paragraph (d), which does away with the requirement of public bidding "whenever the supplies under procurement have been unsuccessfully placed on bid for at least two consecutive times, either due to lack of bidders or the offers received in each instance were exorbitant or nonconforming to specifications."

Again, following the theory of the petitioners, a contract for the lease of equipment cannot be entered into even if there are no bids because, first, lease contracts are governed by the general rule on public bidding and, second, the exception to public bidding in paragraph (d) applies only to contracts for the furnishing of "supplies." Other examples can be given to show the absurdity of interpreting 1 as applicable to any contract for the furnishing of supplies, materials and equipment and of considering the words "supplies," "materials" and "equipment" to be not interchangeable. Our ruling that 1 of E.O. No. 301 does not cover the lease of equipment avoids these fundamental difficulties and is supported by the text of 1, which is entitled "Guidelines for Negotiated Contracts" and by the fact that the only provisions of E.O. No. 301 on leases, namely, 6 and 7, concern the lease of buildings by or to the government. Thus the text of 1 reads:
1. Guidelines for Negotiated Contracts. Any provision of law, decree, executive order or other issuances to the contrary notwithstanding, no contract for public services or for furnishing supplies, materials and equipment to the government or any of its branches, agencies or instrumentalities shall be renewed or entered into without public bidding, except under any of the following situations: a. Whenever the supplies are urgently needed to meet an emergency which may involve the loss of, or danger to, life and/or property; b. Whenever the supplies are to be used in connection with a project or activity which cannot be delayed without causing detriment to the public service; c. Whenever the materials are sold by an exclusive distributor or manufacturer who does not have subdealers selling at lower prices and for which no suitable substitute can be obtained elsewhere at more advantageous terms to the government; d. Whenever the supplies under procurement have been unsuccessfully placed on bid for at least two consecutive times, either due to lack of bidders or the offers received in each instance were exhorbitant or nonconforming to specifications; e. In cases where it is apparent that the requisition of the needed supplies through negotiated purchase is most advantageous to the government to be determined by the Department Head concerned; and f. Whenever the purchase is made from an agency of the government.

Indeed, the purpose for promulgating E.O. No. 301 was merely to decentralize the system of reviewing negotiated contracts of purchase for the furnishing of supplies, materials and equipment as well as lease contracts of buildings. Theretofore, E.O. No. 298, promulgated on August 12, 1940, required consultation with the Secretary of Justice and the Department Head concerned and the approval of the President of the Philippines before contracts for the furnishing of supplies, materials and equipment

could be made on a negotiated basis, without public bidding. E.O. No. 301 changed this by providing as follows:
2. Jurisdiction over Negotiated Contracts. In line with the principles of decentralization and accountability, negotiated contracts for public services or for furnishing supplies, materials or equipment may be entered into by the department or agency head or the governing board of the government-owned or controlled corporation concerned, without need of prior approval by higher authorities, subject to availability of funds, compliance with the standards or guidelines prescribed in Section 1 hereof, and to the audit jurisdiction of the commission on Audit in accordance with existing rules and regulations. Negotiated contracts involving P2,000,000 up to P10,000,000 shall be signed by the Secretary and two other Undersecretaries. xxx xxx xxx 7. Jurisdiction Over Lease Contracts. The heads of agency intending to rent privately-owned buildings or spaces for their use, or to lease out government-owned buildings or spaces for private use, shall have authority to determine the reasonableness of the terms of the lease and the rental rates thereof, and to enter into such lease contracts without need of prior approval by higher authorities, subject to compliance with the uniform standards or guidelines established pursuant to Section 6 hereof by the DPWH and to the audit jurisdiction of COA or its duly authorized representative in accordance with existing rules and regulations.

In sum, E.O. No. 301 applies only to contracts for the purchase of supplies, materials and equipment, and it was merely to change the system of administrative review of emergency purchases, as theretofore prescribed by E.O. No. 298, that E.O. No. 301 was issued on July 26, 1987. Part B of this Executive Order applies to leases of buildings, not of equipment, and therefore does not govern the lease contract in this case. Even if it applies, it does not require public bidding for entering into it. Our holding that E.O. No. 301, 1 applies only to contracts of purchase and sale is conformable to P.D. No. 526, promulgated on August 2, 1974, which is in pari materia. P.D. No. 526 requires local governments to hold public bidding in the "procurement of supplies." By specifying "procurement of supplies" and excepting from the general rule "purchases" when made under certain circumstances, P.D. No. 526, 12 indicates quite clearly that it applies only to contracts of purchase and sale. This provision reads:
12. Procurement without public bidding. Procurement of supplies may be made without the benefit of public bidding in the following modes: (1) Personal canvass of responsible merchants; (2) Emergency purchases; (3) Direct purchases from manufacturers or exclusive distributors; (4) Thru the Bureau of Supply Coordination; and

(5) Purchase from other government entities or foreign governments.

Sec. 3 broadly defines the term "supplies" as including

everything except real estate, which may be needed in the transaction of public business, or in the pursuit of any undertaking, project, or activity, whether of the nature of equipment, furniture, stationery, materials for construction, or personal property of any sort, including non-personal or contractual services such as the repair and maintenance of equipment and furniture, as well as trucking, hauling, janitorial, security, and related or analogous services.

Thus, the texts of both E.O. No. 301, 1 and of P.D. No. 526, 1 and 12, make it clear that only contracts for the purchase and sale of supplies, materials and equipment are contemplated by the rule concerning public biddings. Finally, it is contended that equipment leases are attractive and commonly used in place of contracts of purchase and sale because of "multifarious credit and tax constraints" and therefore could not have been left out from the requirement of public bidding. Obviously these credit and tax constraints can have no attraction to the government when considering the advantages of sale over lease of equipment. The fact that lease contracts are in common use is not a reason for implying that the rule on public bidding applies not only to government purchases but also to lease contracts. For the fact also is that the government leases equipment, such as copying machines, personal computers and the like, without going through public bidding . FOR THE FOREGOING REASONS, the motion for reconsideration of petitioners is DENIED with finality. SO ORDERED.

WIGBERTO E. TAADA and ANNA DOMINIQUE COSETENG, as members of the Philippine Senate and as taxpayers; GREGORIO ANDOLANA and JOKER ARROYO as members of the House of Representatives and as taxpayers; NICANOR P. PERLAS and HORACIO R. MORALES, both as taxpayers; CIVIL LIBERTIES UNION, NATIONAL ECONOMIC PROTECTIONISM ASSOCIATION, CENTER FOR ALTERNATIVE DEVELOPMENT INITIATIVES, LIKAS-KAYANG KAUNLARAN FOUNDATION, INC., PHILIPPINE RURAL RECONSTRUCTION MOVEMENT, DEMOKRATIKONG KILUSAN NG MAGBUBUKID NG PILIPINAS, INC., and PHILIPPINE PEASANT INSTITUTE, in representation of various taxpayers and as non-governmental organizations, petitioners, vs. EDGARDO ANGARA, ALBERTO ROMULO, LETICIA RAMOS-SHAHANI, HEHERSON ALVAREZ, AGAPITO AQUINO, RODOLFO BIAZON, NEPTALI GONZALES, ERNESTO HERRERA, JOSE LINA, GLORIA MACAPAGAL-ARROYO, ORLANDO MERCADO, BLAS OPLE, JOHN OSMEA, SANTANINA RASUL, RAMON REVILLA, RAUL ROCO, FRANCISCO TATAD and FREDDIE WEBB, in their respective capacities as members of the Philippine Senate who concurred in the ratification by the President of the Philippines of the Agreement Establishing the World Trade Organization; SALVADOR ENRIQUEZ, in his capacity as Secretary of Budget and Management; CARIDAD VALDEHUESA, in her capacity as National Treasurer; RIZALINO NAVARRO, in his capacity as Secretary of Trade and Industry; ROBERTO SEBASTIAN, in his capacity as Secretary of Agriculture; ROBERTO DE OCAMPO, in his capacity as Secretary of Finance; ROBERTO ROMULO, in his capacity as Secretary of Foreign Affairs; and TEOFISTO T. GUINGONA, in his capacity as Executive Secretary, respondents. DECISION PANGANIBAN, J.: The emergence on January 1, 1995 of the World Trade Organization, abetted by the membership thereto of the vast majority of countries has revolutionized international business and economic relations amongst states. It has irreversibly propelled the world towards trade liberalization and economic globalization. Liberalization, globalization, deregulation and privatization, the thirdmillennium buzz words, are ushering in a new borderless world of business by sweeping away as mere historical relics the heretofore traditional modes of promoting and protecting national economies like tariffs, export subsidies, import quotas, quantitative restrictions, tax exemptions and currency controls. Finding market niches and becoming the best in specific industries in a market-driven and export-oriented global scenario are replacing age-old beggar-thy-neighbor policies that unilaterally protect weak and inefficient domestic producers of goods and services. In the words of Peter Drucker, the well-known management guru, Increased participation in the world economy has become the key to domestic economic growth and prosperity. Brief Historical Background To hasten worldwide recovery from the devastation wrought by the Second World War, plans for the establishment of three multilateral institutions -- inspired by that grand political body, the United Nations -- were discussed at Dumbarton Oaks and Bretton Woods. The first was the World Bank (WB) which was to address the rehabilitation and reconstruction of war-ravaged and

later developing countries; the second, the International Monetary Fund (IMF) which was to deal with currency problems; and the third, the International Trade Organization (ITO), which was to foster order and predictability in world trade and to minimize unilateral protectionist policies that invite challenge, even retaliation, from other states. However, for a variety of reasons, including its non-ratification by the United States, the ITO, unlike the IMF and WB, never took off. What remained was only GATT -- the General Agreement on Tariffs and Trade. GATT was a collection of treaties governing access to the economies of treaty adherents with no institutionalized body administering the agreements or dependable system of dispute settlement. After half a century and several dizzying rounds of negotiations, principally the Kennedy Round, the Tokyo Round and the Uruguay Round, the world finally gave birth to that administering body -- the World Trade Organization -- with the signing of the Final Act in Marrakesh, Morocco and the ratification of the WTO Agreement by its members. [1]
lii

Like many other developing countries, the Philippines joined WTO as a founding member with the goal, as articulated by President Fidel V. Ramos in two letters to the Senate (infra), of improving Philippine access to foreign markets, especially its major trading partners, through the reduction of tariffs on its exports, particularly agricultural and industrial products. The President also saw in the WTO the opening of new opportunities for the services sector x x x, (the reduction of) costs and uncertainty associated with exporting x x x, and (the attraction of) more investments into the country. Although the Chief Executive did not expressly mention it in his letter, the Philippines - - and this is of special interest to the legal profession - - will benefit from the WTO system of dispute settlement by judicial adjudication through the independent WTO settlement bodies called (1) Dispute Settlement Panels and (2) Appellate Tribunal. Heretofore, trade disputes were settled mainly through negotiations where solutions were arrived at frequently on the basis of relative bargaining strengths, and where naturally, weak and underdeveloped countries were at a disadvantage. The Petition in Brief Arguing mainly (1) that the WTO requires the Philippines to place nationals and products of member-countries on the same footing as Filipinos and local products and (2) that the WTO intrudes, limits and/or impairs the constitutional powers of both Congress and the Supreme Court, the instant petition before this Court assails the WTO Agreement for violating the mandate of the 1987 Constitution to develop a self-reliant and independent national economy effectively controlled by Filipinos x x x (to) give preference to qualified Filipinos (and to) promote the preferential use of Filipino labor, domestic materials and locally produced goods. Simply stated, does the Philippine Constitution prohibit Philippine participation in worldwide trade liberalization and economic globalization? Does it prescribe Philippine integration into a global economy that is liberalized, deregulated and privatized? These are the main questions raised in this petition for certiorari, prohibition and mandamus under Rule 65 of the Rules of Court praying (1) for the nullification, on constitutional grounds, of the concurrence of the Philippine Senate in the ratification by the President of the Philippines of the Agreement Establishing the World Trade Organization (WTO Agreement, for brevity) and (2) for the prohibition of its implementation and enforcement through the release and utilization of public

funds, the assignment of public officials and employees, as well as the use of government properties and resources by respondent-heads of various executive offices concerned therewith. This concurrence is embodied in Senate Resolution No. 97, dated December 14, 1994. The Facts On April 15, 1994, Respondent Rizalino Navarro, then Secretary of the Department of Trade and Industry (Secretary Navarro, for brevity), representing the Government of the Republic of the Philippines, signed in Marrakesh, Morocco, the Final Act Embodying the Results of the Uruguay Round of Multilateral Negotiations (Final Act, for brevity). By signing the Final Act, agreed:
liii

[2]

Secretary Navarro on behalf of the Republic of the Philippines,

(a) to submit, as appropriate, the WTO Agreement for the consideration of their respective competent authorities, with a view to seeking approval of the Agreement in accordance with their procedures; and (b) to adopt the Ministerial Declarations and Decisions. On August 12, 1994, the members of the Philippine Senate received a letter dated August 11, 1994 from the President of the Philippines, [3] stating among others that the Uruguay Round Final Act is hereby submitted to the Senate for its concurrence pursuant to Section 21, Article VII of the Constitution.
liv

On August 13, 1994, the members of the Philippine Senate received another letter from the President of the Philippines [4] likewise dated August 11, 1994, which stated among others that the Uruguay Round Final Act, the Agreement Establishing the World Trade Organization, the Ministerial Declarations and Decisions, and the Understanding on Commitments in Financial Services are hereby submitted to the Senate for its concurrence pursuant to Section 21, Article VII of the Constitution.
lv

On December 9, 1994, the President of the Philippines certified the necessity of the immediate adoption of P.S. 1083, a resolution entitled Concurring in the Ratification of the Agreement Establishing the World Trade Organization. [5]
lvi

On December 14, 1994, the Philippine Senate adopted Resolution No. 97 which Resolved, as it is hereby resolved, that the Senate concur, as it hereby concurs, in the ratification by the President of the Philippines of the Agreement Establishing the World Trade Organization. [6] The text of the WTO Agreement is written on pages 137 et seq. of Volume I of the 36-volume Uruguay Round of Multilateral Trade Negotiations and includes various agreements and associated legal instruments (identified in the said Agreement as Annexes 1, 2 and 3 thereto and collectively referred to as Multilateral Trade Agreements, for brevity) as follows:
lvii

ANNEX 1

Annex 1A:

Multilateral Agreement on Trade in Goods General Agreement on Tariffs and Trade 1994 Agreement on Agriculture Agreement on the Application of Sanitary and Phytosanitary Measures Agreement on Textiles and Clothing Agreement on Technical Barriers to Trade Agreement on Trade-Related Investment Measures Agreement on Implementation of Article VI of the Tariffs and Trade 1994 General Agreement on

Agreement on Implementation of Article VII of the General on Tariffs and Trade 1994 Agreement on Pre-Shipment Inspection Agreement on Rules of Origin Agreement on Imports Licensing Procedures Agreement on Subsidies and Coordinating Measures Agreement on Safeguards Annex 1B: Annex 1C: General Agreement on Trade in Services and Annexes Agreement on Trade-Related Aspects of Intellectual Property Rights ANNEX 2 Understanding on Rules and Procedures Governing the Settlement of Disputes ANNEX 3 Trade Policy Review Mechanism

On December 16, 1994, the President of the Philippines signed declaring:

lviii

[7]

the Instrument of Ratification,

NOW THEREFORE, be it known that I, FIDEL V. RAMOS, President of the Republic of the Philippines, after having seen and considered the aforementioned Agreement Establishing the World Trade Organization and the agreements and associated legal instruments included in Annexes one (1), two (2) and three (3) of that Agreement which are integral parts thereof, signed at Marrakesh, Morocco on 15 April 1994, do hereby ratify and confirm the same and every Article and Clause thereof. To emphasize, the WTO Agreement ratified by the President of the Philippines is composed of the Agreement Proper and the associated legal instruments included in Annexes one (1), two (2) and three (3) of that Agreement which are integral parts thereof. On the other hand, the Final Act signed by Secretary Navarro embodies not only the WTO Agreement (and its integral annexes aforementioned) but also (1) the Ministerial Declarations and Decisions and (2) the Understanding on Commitments in Financial Services. In his Memorandum dated May 13, 1996, [8] the Solicitor General describes these two latter documents as follows:
lix

The Ministerial Decisions and Declarations are twenty-five declarations and decisions on a wide range of matters, such as measures in favor of least developed countries, notification procedures, relationship of WTO with the International Monetary Fund (IMF), and agreements on technical barriers to trade and on dispute settlement. The Understanding on Commitments in Financial Services dwell on, among other things, standstill or limitations and qualifications of commitments to existing non-conforming measures, market access, national treatment, and definitions of non-resident supplier of financial services, commercial presence and new financial service. On December 29, 1994, the present petition was filed. After careful deliberation on respondents comment and petitioners reply thereto, the Court resolved on December 12, 1995, to give due course to the petition, and the parties thereafter filed their respective memoranda. The Court also requested the Honorable Lilia R. Bautista, the Philippine Ambassador to the United Nations stationed in Geneva, Switzerland, to submit a paper, hereafter referred to as Bautista Paper, [9] for brevity, (1) providing a historical background of and (2) summarizing the said agreements.
lx

During the Oral Argument held on August 27, 1996, the Court directed: (a) the petitioners to submit the (1) Senate Committee Report on the matter in controversy and (2) the transcript of proceedings/hearings in the Senate; and (b) the Solicitor General, as counsel for respondents, to file (1) a list of Philippine treaties signed prior to the Philippine adherence to the WTO Agreement, which derogate from Philippine sovereignty and (2) copies of the multi-volume WTO Agreement and other documents mentioned in the Final Act, as soon as possible.

After receipt of the foregoing documents, the Court said it would consider the case submitted for resolution. In a Compliance dated September 16, 1996, the Solicitor General submitted a printed copy of the 36-volume Uruguay Round of Multilateral Trade Negotiations, and in another Compliance dated October 24, 1996, he listed the various bilateral or multilateral treaties or international instruments involving derogation of Philippine sovereignty. Petitioners, on the other hand, submitted their Compliance dated January 28, 1997, on January 30, 1997. The Issues In their Memorandum dated March 11, 1996, petitioners summarized the issues as follows: A. Whether the petition presents a political question or is otherwise not justiciable. B. Whether the petitioner members of the Senate who participated in the deliberations and voting leading to the concurrence are estopped from impugning the validity of the Agreement Establishing the World Trade Organization or of the validity of the concurrence. C. Whether the provisions of the Agreement Establishing the World Trade Organization contravene the provisions of Sec. 19, Article II, and Secs. 10 and 12, Article XII, all of the 1987 Philippine Constitution. D. Whether provisions of the Agreement Establishing the World Trade Organization unduly limit, restrict and impair Philippine sovereignty specifically the legislative power which, under Sec. 2, Article VI, 1987 Philippine Constitution is vested in the Congress of the Philippines; E. Whether provisions of the Agreement Establishing the World Trade Organization interfere with the exercise of judicial power. F. Whether the respondent members of the Senate acted in grave abuse of discretion amounting to lack or excess of jurisdiction when they voted for concurrence in the ratification of the constitutionally-infirm Agreement Establishing the World Trade Organization. G. Whether the respondent members of the Senate acted in grave abuse of discretion amounting to lack or excess of jurisdiction when they concurred only in the ratification of the Agreement Establishing the World Trade Organization, and not with the Presidential submission which included the Final Act, Ministerial Declaration and Decisions, and the Understanding on Commitments in Financial Services. On the other hand, the Solicitor General as counsel for respondents synthesized the several issues raised by petitioners into the following: [10]
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1. Whether or not the provisions of the Agreement Establishing the World Trade Organization and the Agreements and Associated Legal Instruments included in Annexes one (1), two (2) and

three (3) of that agreement cited by petitioners directly contravene or undermine the letter, spirit and intent of Section 19, Article II and Sections 10 and 12, Article XII of the 1987 Constitution. 2. Whether or not certain provisions of the Agreement unduly limit, restrict or impair the exercise of legislative power by Congress. 3. Whether or not certain provisions of the Agreement impair the exercise of judicial power by this Honorable Court in promulgating the rules of evidence. 4. Whether or not the concurrence of the Senate in the ratification by the President of the Philippines of the Agreement establishing the World Trade Organization implied rejection of the treaty embodied in the Final Act. By raising and arguing only four issues against the seven presented by petitioners, the Solicitor General has effectively ignored three, namely: (1) whether the petition presents a political question or is otherwise not justiciable; (2) whether petitioner-members of the Senate (Wigberto E. Taada and Anna Dominique Coseteng) are estopped from joining this suit; and (3) whether the respondent-members of the Senate acted in grave abuse of discretion when they voted for concurrence in the ratification of the WTO Agreement. The foregoing notwithstanding, this Court resolved to deal with these three issues thus: (1) The political question issue -- being very fundamental and vital, and being a matter that probes into the very jurisdiction of this Court to hear and decide this case -- was deliberated upon by the Court and will thus be ruled upon as the first issue; (2) The matter of estoppel will not be taken up because this defense is waivable and the respondents have effectively waived it by not pursuing it in any of their pleadings; in any event, this issue, even if ruled in respondents favor, will not cause the petitions dismissal as there are petitioners other than the two senators, who are not vulnerable to the defense of estoppel; and (3) The issue of alleged grave abuse of discretion on the part of the respondent senators will be taken up as an integral part of the disposition of the four issues raised by the Solicitor General. During its deliberations on the case, the Court noted that the respondents did not question the locus standi of petitioners. Hence, they are also deemed to have waived the benefit of such issue. They probably realized that grave constitutional issues, expenditures of public funds and serious international commitments of the nation are involved here, and that transcendental public interest requires that the substantive issues be met head on and decided on the merits, rather than skirted or deflected by procedural matters. [11]
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To recapitulate, the issues that will be ruled upon shortly are: (1) DOES THE PETITION PRESENT A JUSTICIABLE CONTROVERSY? OTHERWISE STATED, DOES THE PETITION INVOLVE A POLITICAL QUESTION OVER WHICH THIS COURT HAS NO JURISDICTION?

(2) DO THE PROVISIONS OF THE WTO AGREEMENT AND ITS THREE ANNEXES CONTRAVENE SEC. 19, ARTICLE II, AND SECS. 10 AND 12, ARTICLE XII, OF THE PHILIPPINE CONSTITUTION? (3) DO THE PROVISIONS OF SAID AGREEMENT AND ITS ANNEXES LIMIT, RESTRICT, OR IMPAIR THE EXERCISE OF LEGISLATIVE POWER BY CONGRESS? (4) DO SAID PROVISIONS UNDULY IMPAIR OR INTERFERE WITH THE EXERCISE OF JUDICIAL POWER BY THIS COURT IN PROMULGATING RULES ON EVIDENCE? (5) WAS THE CONCURRENCE OF THE SENATE IN THE WTO AGREEMENT AND ITS ANNEXES SUFFICIENT AND/OR VALID, CONSIDERING THAT IT DID NOT INCLUDE THE FINAL ACT, MINISTERIAL DECLARATIONS AND DECISIONS, AND THE UNDERSTANDING ON COMMITMENTS IN FINANCIAL SERVICES? The First Issue: Does the Court Have Jurisdiction Over the Controversy? In seeking to nullify an act of the Philippine Senate on the ground that it contravenes the Constitution, the petition no doubt raises a justiciable controversy. Where an action of the legislative branch is seriously alleged to have infringed the Constitution, it becomes not only the right but in fact the duty of the judiciary to settle the dispute. The question thus posed is judicial rather than political. The duty (to adjudicate) remains to assure that the supremacy of the Constitution is upheld. [12] Once a controversy as to the application or interpretation of a constitutional provision is raised before this Court (as in the instant case), it becomes a legal issue which the Court is bound by constitutional mandate to decide. [13]
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The jurisdiction of this Court to adjudicate the matters in the 1987 Constitution, [15] as follows:
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lxv

[14]

raised in the petition is clearly set out

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government. The foregoing text emphasizes the judicial departments duty and power to strike down grave abuse of discretion on the part of any branch or instrumentality of government including Congress. It is an innovation in our political law. [16] As explained by former Chief Justice Roberto Concepcion, [17] the judiciary is the final arbiter on the question of whether or not a branch of government or any of its officials has acted without jurisdiction or in excess of jurisdiction or so capriciously as to constitute an abuse of discretion amounting to excess of jurisdiction. This is not only a judicial power but a duty to pass judgment on matters of this nature.
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As this Court has repeatedly and firmly emphasized in many cases, [18] 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.
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As the petition alleges grave abuse of discretion and as there is no other plain, speedy or adequate remedy in the ordinary course of law, we have no hesitation at all in holding that this petition should be given due course and the vital questions raised therein ruled upon under Rule 65 of the Rules of Court. Indeed, certiorari, prohibition and mandamus are appropriate remedies to raise constitutional issues and to review and/or prohibit/nullify, when proper, acts of legislative and executive officials. On this, we have no equivocation. We should stress that, in deciding to take jurisdiction over this petition, this Court will not review the wisdom of the decision of the President and the Senate in enlisting the country into the WTO, or pass upon the merits of trade liberalization as a policy espoused by said international body. Neither will it rule on the propriety of the governments economic policy of reducing/removing tariffs, taxes, subsidies, quantitative restrictions, and other import/trade barriers. Rather, it will only exercise its constitutional duty to determine whether or not there had been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the Senate in ratifying the WTO Agreement and its three annexes. Second Issue: The WTO Agreement and Economic Nationalism This is the lis mota, the main issue, raised by the petition. Petitioners vigorously argue that the letter, spirit and intent of the Constitution mandating economic nationalism are violated by the so-called parity provisions and national treatment clauses scattered in various parts not only of the WTO Agreement and its annexes but also in the Ministerial Decisions and Declarations and in the Understanding on Commitments in Financial Services. Specifically, the flagship constitutional provisions referred to are Sec. 19, Article II, and Secs. 10 and 12, Article XII, of the Constitution, which are worded as follows: Article II DECLARATION OF PRINCIPLES AND STATE POLICIES xx xx xx xx

Sec. 19. The State shall develop a self-reliant and independent national economy effectively controlled by Filipinos. xx xx xx xx

Article XII

NATIONAL ECONOMY AND PATRIMONY xx xx xx xx

Sec. 10. x x x. The Congress shall enact measures that will encourage the formation and operation of enterprises whose capital is wholly owned by Filipinos. In the grant of rights, privileges, and concessions covering the national economy and patrimony, the State shall give preference to qualified Filipinos. xx xx xx xx

Sec. 12. The State shall promote the preferential use of Filipino labor, domestic materials and locally produced goods, and adopt measures that help make them competitive. Petitioners aver that these sacred constitutional principles are desecrated by the following WTO provisions quoted in their memorandum: [19]
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a) In the area of investment measures related to trade in goods (TRIMS, for brevity): Article 2 National Treatment and Quantitative Restrictions. 1. Without prejudice to other rights and obligations under GATT 1994. no Member shall apply any TRIM that is inconsistent with the provisions of Article III or Article XI of GATT 1994. 2. An Illustrative list of TRIMS that are inconsistent with the obligations of general elimination of quantitative restrictions provided for in paragraph I of Article XI of GATT 1994 is contained in the Annex to this Agreement. (Agreement on TradeRelated Investment Measures, Vol. 27, Uruguay Round, Legal Instruments, p.22121, emphasis supplied). The Annex referred to reads as follows: ANNEX Illustrative List 1. TRIMS that are inconsistent with the obligation of national treatment provided for in paragraph 4 of Article III of GATT 1994 include those which are mandatory or enforceable under domestic law or under administrative rulings, or compliance with which is necessary to obtain an advantage, and which require:

(a) the purchase or use by an enterprise of products of domestic origin or from any domestic source, whether specified in terms of particular products, in terms of volume or value of products, or in terms of proportion of volume or value of its local production; or (b) that an enterprises purchases or use of imported products be limited to an amount related to the volume or value of local products that it exports. 2. TRIMS that are inconsistent with the obligations of general elimination of quantitative restrictions provided for in paragraph 1 of Article XI of GATT 1994 include those which are mandatory or enforceable under domestic laws or under administrative rulings, or compliance with which is necessary to obtain an advantage, and which restrict: (a) the importation by an enterprise of products used in or related to the local production that it exports; (b) the importation by an enterprise of products used in or related to its local production by restricting its access to foreign exchange inflows attributable to the enterprise; or (c) the exportation or sale for export specified in terms of particular products, in terms of volume or value of products, or in terms of a preparation of volume or value of its local production. (Annex to the Agreement on Trade-Related Investment Measures, Vol. 27, Uruguay Round Legal Documents, p.22125, emphasis supplied). The paragraph 4 of Article III of GATT 1994 referred to is quoted as follows: The products of the territory of any contracting party imported into the territory of any other contracting party shall be accorded treatment no less favorable than that accorded to like products of national origin in respect of laws, regulations and requirements affecting their internal sale, offering for sale, purchase, transportation, distribution or use. the provisions of this paragraph shall not prevent the application of differential internal transportation charges which are based exclusively on the economic operation of the means of transport and not on the nationality of the product. (Article III, GATT 1947, as amended by the Protocol Modifying Part II, and Article XXVI of GATT, 14 September 1948, 62 UMTS 82-84 in relation to paragraph 1(a) of the General Agreement on Tariffs and Trade 1994, Vol. 1, Uruguay Round, Legal Instruments p.177, emphasis supplied). b) In the area of trade related aspects of intellectual property rights (TRIPS, for brevity): Each Member shall accord to the nationals of other Members treatment no less favourable than that it accords to its own nationals with regard to the protection of intellectual property... (par. 1, Article 3, Agreement on Trade-Related Aspect of Intellectual Property rights, Vol. 31, Uruguay Round, Legal Instruments, p.25432 (emphasis supplied) (c) In the area of the General Agreement on Trade in Services:

National Treatment 1. In the sectors inscribed in its schedule, and subject to any conditions and qualifications set out therein, each Member shall accord to services and service suppliers of any other Member, in respect of all measures affecting the supply of services, treatment no less favourable than it accords to its own like services and service suppliers. 2. A Member may meet the requirement of paragraph I by according to services and service suppliers of any other Member, either formally identical treatment or formally different treatment to that it accords to its own like services and service suppliers. 3. Formally identical or formally different treatment shall be considered to be less favourable if it modifies the conditions of completion in favour of services or service suppliers of the Member compared to like services or service suppliers of any other Member. (Article XVII, General Agreement on Trade in Services, Vol. 28, Uruguay Round Legal Instruments, p.22610 emphasis supplied). It is petitioners position that the foregoing national treatment and parity provisions of the WTO Agreement place nationals and products of member countries on the same footing as Filipinos and local products, in contravention of the Filipino First policy of the Constitution. They allegedly render meaningless the phrase effectively controlled by Filipinos. The constitutional conflict becomes more manifest when viewed in the context of the clear duty imposed on the Philippines as a WTO member to ensure the conformity of its laws, regulations and administrative procedures with its obligations as provided in the annexed agreements. [20] Petitioners further argue that these provisions contravene constitutional limitations on the role exports play in national development and negate the preferential treatment accorded to Filipino labor, domestic materials and locally produced goods.
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On the other hand, respondents through the Solicitor General counter (1) that such Charter provisions are not self-executing and merely set out general policies; (2) that these nationalistic portions of the Constitution invoked by petitioners should not be read in isolation but should be related to other relevant provisions of Art. XII, particularly Secs. 1 and 13 thereof; (3) that read properly, the cited WTO clauses do not conflict with the Constitution; and (4) that the WTO Agreement contains sufficient provisions to protect developing countries like the Philippines from the harshness of sudden trade liberalization. We shall now discuss and rule on these arguments. Declaration of Principles Not Self-Executing By its very title, Article II of the Constitution is a declaration of principles and state policies. The counterpart of this article in the 1935 Constitution [21] is called the basic political creed of the nation by Dean Vicente Sinco. [22] These principles in Article II are not intended to be self-executing principles ready for enforcement through the courts. [23] They are used by the judiciary as aids or as guides in the exercise of its power of judicial review, and by the legislature
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in its enactment of laws. As held in the leading case of Kilosbayan, Incorporated vs. Morato, [24] the principles and state policies enumerated in Article II and some sections of Article XII are not self-executing provisions, the disregard of which can give rise to a cause of action in the courts. They do not embody judicially enforceable constitutional rights but guidelines for legislation.
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In the same light, we held in Basco vs. Pagcor [25] that broad constitutional principles need legislative enactments to implement them, thus:
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On petitioners allegation that P.D. 1869 violates Sections 11 (Personal Dignity) 12 (Family) and 13 (Role of Youth) of Article II; Section 13 (Social Justice) of Article XIII and Section 2 (Educational Values) of Article XIV of the 1987 Constitution, suffice it to state also that these are merely statements of principles and policies. As such, they are basically not self-executing, meaning a law should be passed by Congress to clearly define and effectuate such principles. In general, therefore, the 1935 provisions were not intended to be self-executing principles ready for enforcement through the courts. They were rather directives addressed to the executive and to the legislature. If the executive and the legislature failed to heed the directives of the article, the available remedy was not judicial but political. The electorate could express their displeasure with the failure of the executive and the legislature through the language of the ballot. (Bernas, Vol. II, p. 2). The reasons for denying a cause of action to an alleged infringement of broad constitutional principles are sourced from basic considerations of due process and the lack of judicial authority to wade into the uncharted ocean of social and economic policy making. Mr. Justice Florentino P. Feliciano in his concurring opinion in Oposa vs. Factoran, Jr., [26] explained these reasons as follows:
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My suggestion is simply that petitioners must, before the trial court, show a more specific legal right -- a right cast in language of a significantly lower order of generality than Article II (15) of the Constitution -- that is or may be violated by the actions, or failures to act, imputed to the public respondent by petitioners so that the trial court can validly render judgment granting all or part of the relief prayed for. To my mind, the court should be understood as simply saying that such a more specific legal right or rights may well exist in our corpus of law, considering the general policy principles found in the Constitution and the existence of the Philippine Environment Code, and that the trial court should have given petitioners an effective opportunity so to demonstrate, instead of aborting the proceedings on a motion to dismiss. It seems to me important that the legal right which is an essential component of a cause of action be a specific, operable legal right, rather than a constitutional or statutory policy, for at least two (2) reasons. One is that unless the legal right claimed to have been violated or disregarded is given specification in operational terms, defendants may well be unable to defend themselves intelligently and effectively; in other words, there are due process dimensions to this matter. The second is a broader-gauge consideration -- where a specific violation of law or applicable regulation is not alleged or proved, petitioners can be expected to fall back on the expanded

conception of judicial power in the second paragraph of Section 1 of Article VIII of the Constitution which reads: Section 1. xxx

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. (Emphases supplied) When substantive standards as general as the right to a balanced and healthy ecology and the right to health are combined with remedial standards as broad ranging as a grave abuse of discretion amounting to lack or excess of jurisdiction, the result will be, it is respectfully submitted, to propel courts into the uncharted ocean of social and economic policy making. At least in respect of the vast area of environmental protection and management, our courts have no claim to special technical competence and experience and professional qualification. Where no specific, operable norms and standards are shown to exist, then the policy making departments -the legislative and executive departments -- must be given a real and effective opportunity to fashion and promulgate those norms and standards, and to implement them before the courts should intervene. Economic Nationalism Should Be Read with Other Constitutional Mandates to Attain Balanced Development of Economy On the other hand, Secs. 10 and 12 of Article XII, apart from merely laying down general principles relating to the national economy and patrimony, should be read and understood in relation to the other sections in said article, especially Secs. 1 and 13 thereof which read: Section 1. The goals of the national economy are a more equitable distribution of opportunities, income, and wealth; a sustained increase in the amount of goods and services produced by the nation for the benefit of the people; and an expanding productivity as the key to raising the quality of life for all, especially the underprivileged. The State shall promote industrialization and full employment based on sound agricultural development and agrarian reform, through industries that make full and efficient use of human and natural resources, and which are competitive in both domestic and foreign markets. However, the State shall protect Filipino enterprises against unfair foreign competition and trade practices. In the pursuit of these goals, all sectors of the economy and all regions of the country shall be given optimum opportunity to develop. x x x xxx xxx xxx

Sec. 13. The State shall pursue a trade policy that serves the general welfare and utilizes all forms and arrangements of exchange on the basis of equality and reciprocity.

As pointed out by the Solicitor General, Sec. 1 lays down the basic goals of national economic development, as follows: 1. A more equitable distribution of opportunities, income and wealth; 2. A sustained increase in the amount of goods and services provided by the nation for the benefit of the people; and 3. An expanding productivity as the key to raising the quality of life for all especially the underprivileged. With these goals in context, the Constitution then ordains the ideals of economic nationalism (1) by expressing preference in favor of qualified Filipinos in the grant of rights, privileges and concessions covering the national economy and patrimony [27] and in the use of Filipino labor, domestic materials and locally-produced goods; (2) by mandating the State to adopt measures that help make them competitive; [28] and (3) by requiring the State to develop a selfreliant and independent national economy effectively controlled by Filipinos. [29] In similar language, the Constitution takes into account the realities of the outside world as it requires the pursuit of a trade policy that serves the general welfare and utilizes all forms and arrangements of exchange on the basis of equality and reciprocity; [30] and speaks of industries which are competitive in both domestic and foreign markets as well as of the protection of Filipino enterprises against unfair foreign competition and trade practices.
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It is true that in the recent case of Manila Prince Hotel vs. Government Service Insurance System, et al., [31] this Court held that Sec. 10, second par., Art. XII of the 1987 Constitution is a mandatory, positive command which is complete in itself and which needs no further guidelines or implementing laws or rules for its enforcement. From its very words the provision does not require any legislation to put it in operation. It is per se judicially enforceable. However, as the constitutional provision itself states, it is enforceable only in regard to the grants of rights, privileges and concessions covering national economy and patrimony and not to every aspect of trade and commerce. It refers to exceptions rather than the rule. The issue here is not whether this paragraph of Sec. 10 of Art. XII is self-executing or not. Rather, the issue is whether, as a rule, there are enough balancing provisions in the Constitution to allow the Senate to ratify the Philippine concurrence in the WTO Agreement. And we hold that there are.
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All told, while the Constitution indeed mandates a bias in favor of Filipino goods, services, labor and enterprises, at the same time, it recognizes the need for business exchange with the rest of the world on the bases of equality and reciprocity and limits protection of Filipino enterprises only against foreign competition and trade practices that are unfair. [32] In other words, the Constitution did not intend to pursue an isolationist policy. It did not shut out foreign investments, goods and services in the development of the Philippine economy. While the Constitution does not encourage the unlimited entry of foreign goods, services and investments into the country, it does not prohibit them either. In fact, it allows an exchange on the basis of equality and reciprocity, frowning only on foreign competition that is unfair.
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WTO Recognizes Need to Protect Weak Economies

Upon the other hand, respondents maintain that the WTO itself has some built-in advantages to protect weak and developing economies, which comprise the vast majority of its members. Unlike in the UN where major states have permanent seats and veto powers in the Security Council, in the WTO, decisions are made on the basis of sovereign equality, with each members vote equal in weight to that of any other. There is no WTO equivalent of the UN Security Council. WTO decides by consensus whenever possible, otherwise, decisions of the Ministerial Conference and the General Council shall be taken by the majority of the votes cast, except in cases of interpretation of the Agreement or waiver of the obligation of a member which would require three fourths vote. Amendments would require two thirds vote in general. Amendments to MFN provisions and the Amendments provision will require assent of all members. Any member may withdraw from the Agreement upon the expiration of six months from the date of notice of withdrawals. [33]
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Hence, poor countries can protect their common interests more effectively through the WTO than through one-on-one negotiations with developed countries. Within the WTO, developing countries can form powerful blocs to push their economic agenda more decisively than outside the Organization. This is not merely a matter of practical alliances but a negotiating strategy rooted in law. Thus, the basic principles underlying the WTO Agreement recognize the need of developing countries like the Philippines to share in the growth in international trade commensurate with the needs of their economic development. These basic principles are found in the preamble [34] of the WTO Agreement as follows:
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The Parties to this Agreement, Recognizing that their relations in the field of trade and economic endeavour should be conducted with a view to raising standards of living, ensuring full employment and a large and steadily growing volume of real income and effective demand, and expanding the production of and trade in goods and services, while allowing for the optimal use of the worlds resources in accordance with the objective of sustainable development, seeking both to protect and preserve the environment and to enhance the means for doing so in a manner consistent with their respective needs and concerns at different levels of economic development, Recognizing further that there is need for positive efforts designed to ensure that developing countries, and especially the least developed among them, secure a share in the growth in international trade commensurate with the needs of their economic development, Being desirous of contributing to these objectives by entering into reciprocal and mutually advantageous arrangements directed to the substantial reduction of tariffs and other barriers to trade and to the elimination of discriminatory treatment in international trade relations, Resolved, therefore, to develop an integrated, more viable and durable multilateral trading system encompassing the General Agreement on Tariffs and Trade, the results of past trade liberalization efforts, and all of the results of the Uruguay Round of Multilateral Trade Negotiations,

Determined to preserve the basic principles and to further the objectives underlying this multilateral trading system, x x x. (underscoring supplied.) Specific WTO Provisos Protect Developing Countries So too, the Solicitor General points out that pursuant to and consistent with the foregoing basic principles, the WTO Agreement grants developing countries a more lenient treatment, giving their domestic industries some protection from the rush of foreign competition. Thus, with respect to tariffs in general, preferential treatment is given to developing countries in terms of the amount of tariff reduction and the period within which the reduction is to be spread out. Specifically, GATT requires an average tariff reduction rate of 36% for developed countries to be effected within a period of six (6) years while developing countries -- including the Philippines -- are required to effect an average tariff reduction of only 24% within ten (10) years. In respect to domestic subsidy, GATT requires developed countries to reduce domestic support to agricultural products by 20% over six (6) years, as compared to only 13% for developing countries to be effected within ten (10) years. In regard to export subsidy for agricultural products, GATT requires developed countries to reduce their budgetary outlays for export subsidy by 36% and export volumes receiving export subsidy by 21% within a period of six (6) years. For developing countries, however, the reduction rate is only two-thirds of that prescribed for developed countries and a longer period of ten (10) years within which to effect such reduction. Moreover, GATT itself has provided built-in protection from unfair foreign competition and trade practices including anti-dumping measures, countervailing measures and safeguards against import surges. Where local businesses are jeopardized by unfair foreign competition, the Philippines can avail of these measures. There is hardly therefore any basis for the statement that under the WTO, local industries and enterprises will all be wiped out and that Filipinos will be deprived of control of the economy. Quite the contrary, the weaker situations of developing nations like the Philippines have been taken into account; thus, there would be no basis to say that in joining the WTO, the respondents have gravely abused their discretion. True, they have made a bold decision to steer the ship of state into the yet uncharted sea of economic liberalization. But such decision cannot be set aside on the ground of grave abuse of discretion, simply because we disagree with it or simply because we believe only in other economic policies. As earlier stated, the Court in taking jurisdiction of this case will not pass upon the advantages and disadvantages of trade liberalization as an economic policy. It will only perform its constitutional duty of determining whether the Senate committed grave abuse of discretion. Constitution Does Not Rule Out Foreign Competition Furthermore, the constitutional policy of a self-reliant and independent national economy [35] does not necessarily rule out the entry of foreign investments, goods and services. It contemplates neither economic seclusion nor mendicancy in the international community. As explained by Constitutional Commissioner Bernardo Villegas, sponsor of this constitutional policy:
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Economic self-reliance is a primary objective of a developing country that is keenly aware of overdependence on external assistance for even its most basic needs. It does not mean autarky or economic seclusion; rather, it means avoiding mendicancy in the international community. Independence refers to the freedom from undue foreign control of the national economy, especially in such strategic industries as in the development of natural resources and public utilities. [36]
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The WTO reliance on most favored nation, national treatment, and trade without discrimination cannot be struck down as unconstitutional as in fact they are rules of equality and reciprocity that apply to all WTO members. Aside from envisioning a trade policy based on equality and reciprocity, [37] the fundamental law encourages industries that are competitive in both domestic and foreign markets, thereby demonstrating a clear policy against a sheltered domestic trade environment, but one in favor of the gradual development of robust industries that can compete with the best in the foreign markets. Indeed, Filipino managers and Filipino enterprises have shown capability and tenacity to compete internationally. And given a free trade environment, Filipino entrepreneurs and managers in Hongkong have demonstrated the Filipino capacity to grow and to prosper against the best offered under a policy of laissez faire.
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Constitution Favors Consumers, Not Industries or Enterprises The Constitution has not really shown any unbalanced bias in favor of any business or enterprise, nor does it contain any specific pronouncement that Filipino companies should be pampered with a total proscription of foreign competition. On the other hand, respondents claim that WTO/GATT aims to make available to the Filipino consumer the best goods and services obtainable anywhere in the world at the most reasonable prices. Consequently, the question boils down to whether WTO/GATT will favor the general welfare of the public at large. Will adherence to the WTO treaty bring this ideal (of favoring the general welfare) to reality? Will WTO/GATT succeed in promoting the Filipinos general welfare because it will -- as promised by its promoters -- expand the countrys exports and generate more employment? Will it bring more prosperity, employment, purchasing power and quality products at the most reasonable rates to the Filipino public? The responses to these questions involve judgment calls by our policy makers, for which they are answerable to our people during appropriate electoral exercises. Such questions and the answers thereto are not subject to judicial pronouncements based on grave abuse of discretion. Constitution Designed to Meet Future Events and Contingencies No doubt, the WTO Agreement was not yet in existence when the Constitution was drafted and ratified in 1987. That does not mean however that the Charter is necessarily flawed in the sense that its framers might not have anticipated the advent of a borderless world of business. By the same token, the United Nations was not yet in existence when the 1935 Constitution became effective. Did that necessarily mean that the then Constitution might not have contemplated a

diminution of the absoluteness of sovereignty when the Philippines signed the UN Charter, thereby effectively surrendering part of its control over its foreign relations to the decisions of various UN organs like the Security Council? It is not difficult to answer this question. Constitutions are designed to meet not only the vagaries of contemporary events. They should be interpreted to cover even future and unknown circumstances. It is to the credit of its drafters that a Constitution can withstand the assaults of bigots and infidels but at the same time bend with the refreshing winds of change necessitated by unfolding events. As one eminent political law writer and respected jurist [38] explains:
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The Constitution must be quintessential rather than superficial, the root and not the blossom, the base and framework only of the edifice that is yet to rise. It is but the core of the dream that must take shape, not in a twinkling by mandate of our delegates, but slowly in the crucible of Filipino minds and hearts, where it will in time develop its sinews and gradually gather its strength and finally achieve its substance. In fine, the Constitution cannot, like the goddess Athena, rise full-grown from the brow of the Constitutional Convention, nor can it conjure by mere fiat an instant Utopia. It must grow with the society it seeks to re-structure and march apace with the progress of the race, drawing from the vicissitudes of history the dynamism and vitality that will keep it, far from becoming a petrified rule, a pulsing, living law attuned to the heartbeat of the nation. Third Issue: The WTO Agreement and Legislative Power The WTO Agreement provides that (e)ach Member shall ensure the conformity of its laws, regulations and administrative procedures with its obligations as provided in the annexed Agreements. [39] Petitioners maintain that this undertaking unduly limits, restricts and impairs Philippine sovereignty, specifically the legislative power which under Sec. 2, Article VI of the 1987 Philippine Constitution is vested in the Congress of the Philippines. It is an assault on the sovereign powers of the Philippines because this means that Congress could not pass legislation that will be good for our national interest and general welfare if such legislation will not conform with the WTO Agreement, which not only relates to the trade in goods x x x but also to the flow of investments and money x x x as well as to a whole slew of agreements on socio-cultural matters x x x. [40]
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More specifically, petitioners claim that said WTO proviso derogates from the power to tax, which is lodged in the Congress. [41] And while the Constitution allows Congress to authorize the President to fix tariff rates, import and export quotas, tonnage and wharfage dues, and other duties or imposts, such authority is subject to specified limits and x x x such limitations and restrictions as Congress may provide, [42] as in fact it did under Sec. 401 of the Tariff and Customs Code.
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Sovereignty Limited by International Law and Treaties This Court notes and appreciates the ferocity and passion by which petitioners stressed their arguments on this issue. However, while sovereignty has traditionally been deemed absolute and all-encompassing on the domestic level, it is however subject to restrictions and limitations

voluntarily agreed to by the Philippines, expressly or impliedly, as a member of the family of nations. Unquestionably, the Constitution did not envision a hermit-type isolation of the country from the rest of the world. In its Declaration of Principles and State Policies, the Constitution 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." [43] By the doctrine of incorporation, the country is bound by generally accepted principles of international law, which are considered to be automatically part of our own laws. [44] One of the oldest and most fundamental rules in international law is pacta sunt servanda -international agreements must be performed in good faith. A treaty engagement is not a mere moral obligation but creates a legally binding obligation on the parties x x x. A state which has contracted valid international obligations is bound to make in its legislations such modifications as may be necessary to ensure the fulfillment of the obligations undertaken. [45]
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By their inherent nature, treaties really limit or restrict the absoluteness of sovereignty. By their voluntary act, nations may surrender some aspects of their state power in exchange for greater benefits granted by or derived from a convention or pact. After all, states, like individuals, live with coequals, and in pursuit of mutually covenanted objectives and benefits, they also commonly agree to limit the exercise of their otherwise absolute rights. Thus, treaties have been used to record agreements between States concerning such widely diverse matters as, for example, the lease of naval bases, the sale or cession of territory, the termination of war, the regulation of conduct of hostilities, the formation of alliances, the regulation of commercial relations, the settling of claims, the laying down of rules governing conduct in peace and the establishment of international organizations. [46] The sovereignty of a state therefore cannot in fact and in reality be considered absolute. Certain restrictions enter into the picture: (1) limitations imposed by the very nature of membership in the family of nations and (2) limitations imposed by treaty stipulations. As aptly put by John F. Kennedy, Today, no nation can build its destiny alone. The age of self-sufficient nationalism is over. The age of interdependence is here. [47]
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UN Charter and Other Treaties Limit Sovereignty Thus, when the Philippines joined the United Nations as one of its 51 charter members, it consented to restrict its sovereign rights under the concept of sovereignty as auto-limitation.47A Under Article 2 of the UN Charter, (a)ll members shall give the United Nations every assistance in any action it takes in accordance with the present Charter, and shall refrain from giving assistance to any state against which the United Nations is taking preventive or enforcement action. Such assistance includes payment of its corresponding share not merely in administrative expenses but also in expenditures for the peace-keeping operations of the organization. In its advisory opinion of July 20, 1961, the International Court of Justice held that money used by the United Nations Emergency Force in the Middle East and in the Congo were expenses of the United Nations under Article 17, paragraph 2, of the UN Charter. Hence, all its members must bear their corresponding share in such expenses. In this sense, the Philippine Congress is restricted in its power to appropriate. It is compelled to appropriate funds whether it agrees with such peace-keeping expenses or not. So too, under Article 105 of the said Charter, the UN and its representatives enjoy diplomatic privileges and immunities, thereby limiting again the exercise of sovereignty of members within their own territory. Another example:

although sovereign equality and domestic jurisdiction of all members are set forth as underlying principles in the UN Charter, such provisos are however subject to enforcement measures decided by the Security Council for the maintenance of international peace and security under Chapter VII of the Charter. A final example: under Article 103, (i)n the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligation under the present charter shall prevail, thus unquestionably denying the Philippines -- as a member -- the sovereign power to make a choice as to which of conflicting obligations, if any, to honor. Apart from the UN Treaty, the Philippines has entered into many other international pacts -both bilateral and multilateral -- that involve limitations on Philippine sovereignty. These are enumerated by the Solicitor General in his Compliance dated October 24, 1996, as follows: (a) Bilateral convention with the United States regarding taxes on income, where the Philippines agreed, among others, to exempt from tax, income received in the Philippines by, among others, the Federal Reserve Bank of the United States, the Export/Import Bank of the United States, the Overseas Private Investment Corporation of the United States. Likewise, in said convention, wages, salaries and similar remunerations paid by the United States to its citizens for labor and personal services performed by them as employees or officials of the United States are exempt from income tax by the Philippines. (b) Bilateral agreement with Belgium, providing, among others, for the avoidance of double taxation with respect to taxes on income. (c) Bilateral convention with the Kingdom of Sweden for the avoidance of double taxation. (d) Bilateral convention with the French Republic for the avoidance of double taxation. (e) Bilateral air transport agreement with Korea where the Philippines agreed to exempt from all customs duties, inspection fees and other duties or taxes aircrafts of South Korea and the regular equipment, spare parts and supplies arriving with said aircrafts. (f) Bilateral air service agreement with Japan, where the Philippines agreed to exempt from customs duties, excise taxes, inspection fees and other similar duties, taxes or charges fuel, lubricating oils, spare parts, regular equipment, stores on board Japanese aircrafts while on Philippine soil. (g) Bilateral air service agreement with Belgium where the Philippines granted Belgian air carriers the same privileges as those granted to Japanese and Korean air carriers under separate air service agreements. (h) Bilateral notes with Israel for the abolition of transit and visitor visas where the Philippines exempted Israeli nationals from the requirement of obtaining transit or visitor visas for a sojourn in the Philippines not exceeding 59 days.

(I) Bilateral agreement with France exempting French nationals from the requirement of obtaining transit and visitor visa for a sojourn not exceeding 59 days. (j) Multilateral Convention on Special Missions, where the Philippines agreed that premises of Special Missions in the Philippines are inviolable and its agents can not enter said premises without consent of the Head of Mission concerned. Special Missions are also exempted from customs duties, taxes and related charges. (k) Multilateral Convention on the Law of Treaties. In this convention, the Philippines agreed to be governed by the Vienna Convention on the Law of Treaties. (l) Declaration of the President of the Philippines accepting compulsory jurisdiction of the International Court of Justice. The International Court of Justice has jurisdiction in all legal disputes concerning the interpretation of a treaty, any question of international law, the existence of any fact which, if established, would constitute a breach of international obligation. In the foregoing treaties, the Philippines has effectively agreed to limit the exercise of its sovereign powers of taxation, eminent domain and police power. The underlying consideration in this partial surrender of sovereignty is the reciprocal commitment of the other contracting states in granting the same privilege and immunities to the Philippines, its officials and its citizens. The same reciprocity characterizes the Philippine commitments under WTO-GATT. International treaties, whether relating to nuclear disarmament, human rights, the environment, the law of the sea, or trade, constrain domestic political sovereignty through the assumption of external obligations. But unless anarchy in international relations is preferred as an alternative, in most cases we accept that the benefits of the reciprocal obligations involved outweigh the costs associated with any loss of political sovereignty. (T)rade treaties that structure relations by reference to durable, well-defined substantive norms and objective dispute resolution procedures reduce the risks of larger countries exploiting raw economic power to bully smaller countries, by subjecting power relations to some form of legal ordering. In addition, smaller countries typically stand to gain disproportionately from trade liberalization. This is due to the simple fact that liberalization will provide access to a larger set of potential new trading relationship than in case of the larger country gaining enhanced success to the smaller countrys market. [48]
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The point is that, as shown by the foregoing treaties, a portion of sovereignty may be waived without violating the Constitution, based on the rationale that the Philippines adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of x x x cooperation and amity with all nations. Fourth Issue: The WTO Agreement and Judicial Power Petitioners aver that paragraph 1, Article 34 of the General Provisions and Basic Principles of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) [49] intrudes on the power of the Supreme Court to promulgate rules concerning pleading, practice and procedures.
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[50]

To understand the scope and meaning of Article 34, TRIPS, full text as follows: Article 34

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[51]

it will be fruitful to restate its

Process Patents: Burden of Proof 1. For the purposes of civil proceedings in respect of the infringement of the rights of the owner referred to in paragraph 1(b) of Article 28, if the subject matter of a patent is a process for obtaining a product, the judicial authorities shall have the authority to order the defendant to prove that the process to obtain an identical product is different from the patented process. Therefore, Members shall provide, in at least one of the following circumstances, that any identical product when produced without the consent of the patent owner shall, in the absence of proof to the contrary, be deemed to have been obtained by the patented process: (a) if the product obtained by the patented process is new; (b) if there is a substantial likelihood that the identical product was made by the process and the owner of the patent has been unable through reasonable efforts to determine the process actually used. 2. Any Member shall be free to provide that the burden of proof indicated in paragraph 1 shall be on the alleged infringer only if the condition referred to in subparagraph (a) is fulfilled or only if the condition referred to in subparagraph (b) is fulfilled. 3. In the adduction of proof to the contrary, the legitimate interests of defendants in protecting their manufacturing and business secrets shall be taken into account. From the above, a WTO Member is required to provide a rule of disputable (note the words in the absence of proof to the contrary) presumption that a product shown to be identical to one produced with the use of a patented process shall be deemed to have been obtained by the (illegal) use of the said patented process, (1) where such product obtained by the patented product is new, or (2) where there is substantial likelihood that the identical product was made with the use of the said patented process but the owner of the patent could not determine the exact process used in obtaining such identical product. Hence, the burden of proof contemplated by Article 34 should actually be understood as the duty of the alleged patent infringer to overthrow such presumption. Such burden, properly understood, actually refers to the burden of evidence (burden of going forward) placed on the producer of the identical (or fake) product to show that his product was produced without the use of the patented process. The foregoing notwithstanding, the patent owner still has the burden of proof since, regardless of the presumption provided under paragraph 1 of Article 34, such owner still has to introduce evidence of the existence of the alleged identical product, the fact that it is identical to the genuine one produced by the patented process and the fact of newness of the genuine product

or the fact of substantial likelihood that the identical product was made by the patented process. The foregoing should really present no problem in changing the rules of evidence as the present law on the subject, Republic Act No. 165, as amended, otherwise known as the Patent Law, provides a similar presumption in cases of infringement of patented design or utility model, thus: SEC. 60. Infringement. - Infringement of a design patent or of a patent for utility model shall consist in unauthorized copying of the patented design or utility model for the purpose of trade or industry in the article or product and in the making, using or selling of the article or product copying the patented design or utility model. Identity or substantial identity with the patented design or utility model shall constitute evidence of copying. (underscoring supplied) Moreover, it should be noted that the requirement of Article 34 to provide a disputable presumption applies only if (1) the product obtained by the patented process is NEW or (2) there is a substantial likelihood that the identical product was made by the process and the process owner has not been able through reasonable effort to determine the process used. Where either of these two provisos does not obtain, members shall be free to determine the appropriate method of implementing the provisions of TRIPS within their own internal systems and processes. By and large, the arguments adduced in connection with our disposition of the third issue -derogation of legislative power - will apply to this fourth issue also. Suffice it to say that the reciprocity clause more than justifies such intrusion, if any actually exists. Besides, Article 34 does not contain an unreasonable burden, consistent as it is with due process and the concept of adversarial dispute settlement inherent in our judicial system. So too, since the Philippine is a signatory to most international conventions on patents, trademarks and copyrights, the adjustment in legislation and rules of procedure will not be substantial. [52]
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Fifth Issue: Concurrence Only in the WTO Agreement and Not in Other Documents Contained in the Final Act Petitioners allege that the Senate concurrence in the WTO Agreement and its annexes -- but not in the other documents referred to in the Final Act, namely the Ministerial Declaration and Decisions and the Understanding on Commitments in Financial Services -- is defective and insufficient and thus constitutes abuse of discretion. They submit that such concurrence in the WTO Agreement alone is flawed because it is in effect a rejection of the Final Act, which in turn was the document signed by Secretary Navarro, in representation of the Republic upon authority of the President. They contend that the second letter of the President to the Senate [53] which enumerated what constitutes the Final Act should have been the subject of concurrence of the Senate.
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A final act, sometimes called protocol de clture, is an instrument which records the winding up of the proceedings of a diplomatic conference and usually includes a reproduction of the texts of treaties, conventions, recommendations and other acts agreed upon and signed by the

plenipotentiaries attending the conference. [54] It is not the treaty itself. It is rather a summary of the proceedings of a protracted conference which may have taken place over several years. The text of the Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations is contained in just one page [55] in Vol. I of the 36-volume Uruguay Round of Multilateral Trade Negotiations. By signing said Final Act, Secretary Navarro as representative of the Republic of the Philippines undertook:
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"(a) to submit, as appropriate, the WTO Agreement for the consideration of their respective competent authorities with a view to seeking approval of the Agreement in accordance with their procedures; and (b) to adopt the Ministerial Declarations and Decisions." The assailed Senate Resolution No. 97 expressed concurrence in exactly what the Final Act required from its signatories, namely, concurrence of the Senate in the WTO Agreement. The Ministerial Declarations and Decisions were deemed adopted without need for ratification. They were approved by the ministers by virtue of Article XXV: 1 of GATT which provides that representatives of the members can meet to give effect to those provisions of this Agreement which invoke joint action, and generally with a view to facilitating the operation and furthering the objectives of this Agreement. [56]
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The Understanding on Commitments in Financial Services also approved in Marrakesh does not apply to the Philippines. It applies only to those 27 Members which have indicated in their respective schedules of commitments on standstill, elimination of monopoly, expansion of operation of existing financial service suppliers, temporary entry of personnel, free transfer and processing of information, and national treatment with respect to access to payment, clearing systems and refinancing available in the normal course of business. [57]
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On the other hand, the WTO Agreement itself expresses what multilateral agreements are deemed included as its integral parts, [58] as follows:
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Article II Scope of the WTO 1. The WTO shall provide the common institutional framework for the conduct of trade relations among its Members in matters to the agreements and associated legal instruments included in the Annexes to this Agreement. 2. The Agreements and associated legal instruments included in Annexes 1, 2, and 3 (hereinafter referred to as Multilateral Agreements) are integral parts of this Agreement, binding on all Members. 3. The Agreements and associated legal instruments included in Annex 4 (hereinafter referred to as Plurilateral Trade Agreements) are also part of this Agreement for those

Members that have accepted them, and are binding on those Members. The Plurilateral Trade Agreements do not create either obligation or rights for Members that have not accepted them. 4. The General Agreement on Tariffs and Trade 1994 as specified in annex 1A (hereinafter referred to as GATT 1994) is legally distinct from the General Agreement on Tariffs and Trade, dated 30 October 1947, annexed to the Final Act adopted at the conclusion of the Second Session of the Preparatory Committee of the United Nations Conference on Trade and Employment, as subsequently rectified, amended or modified (hereinafter referred to as GATT 1947). It should be added that the Senate was well-aware of what it was concurring in as shown by the members deliberation on August 25, 1994. After reading the letter of President Ramos dated August 11, 1994, [59] the senators of the Republic minutely dissected what the Senate was concurring in, as follows: [60]
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THE CHAIRMAN: Yes. Now, the question of the validity of the submission came up in the first day hearing of this Committee yesterday. Was the observation made by Senator Taada that what was submitted to the Senate was not the agreement on establishing the World Trade Organization by the final act of the Uruguay Round which is not the same as the agreement establishing the World Trade Organization? And on that basis, Senator Tolentino raised a point of order which, however, he agreed to withdraw upon understanding that his suggestion for an alternative solution at that time was acceptable. That suggestion was to treat the proceedings of the Committee as being in the nature of briefings for Senators until the question of the submission could be clarified. And so, Secretary Romulo, in effect, is the President submitting a new... is he making a new submission which improves on the clarity of the first submission? MR. ROMULO: Mr. Chairman, to make sure that it is clear cut and there should be no misunderstanding, it was his intention to clarify all matters by giving this letter. THE CHAIRMAN: Thank you. Can this Committee hear from Senator Taada and later on Senator Tolentino since they were the ones that raised this question yesterday? Senator Taada, please. SEN. TAADA: Thank you, Mr. Chairman. Based on what Secretary Romulo has read, it would now clearly appear that what is being submitted to the Senate for ratification is not the Final Act of the Uruguay Round, but rather the Agreement on the World Trade Organization as well as the Ministerial Declarations and Decisions, and the Understanding and Commitments in Financial Services.

I am now satisfied with the wording of the new submission of President Ramos. SEN. TAADA. . . . of President Ramos, Mr. Chairman. THE CHAIRMAN. Thank you, Senator Taada. Can we hear from Senator Tolentino? And after him Senator Neptali Gonzales and Senator Lina. SEN TOLENTINO, Mr. Chairman, I have not seen the new submission actually transmitted to us but I saw the draft of his earlier, and I think it now complies with the provisions of the Constitution, and with the Final Act itself. The Constitution does not require us to ratify the Final Act. It requires us to ratify the Agreement which is now being submitted. The Final Act itself specifies what is going to be submitted to with the governments of the participants. In paragraph 2 of the Final Act, we read and I quote: By signing the present Final Act, the representatives agree: (a) to submit as appropriate the WTO Agreement for the consideration of the respective competent authorities with a view to seeking approval of the Agreement in accordance with their procedures. In other words, it is not the Final Act that was agreed to be submitted to the governments for ratification or acceptance as whatever their constitutional procedures may provide but it is the World Trade Organization Agreement. And if that is the one that is being submitted now, I think it satisfies both the Constitution and the Final Act itself. Thank you, Mr. Chairman. THE CHAIRMAN. Thank you, Senator Tolentino, May I call on Senator Gonzales. SEN. GONZALES. Mr. Chairman, my views on this matter are already a matter of record. And they had been adequately reflected in the journal of yesterdays session and I dont see any need for repeating the same. Now, I would consider the new submission as an act ex abudante cautela. THE CHAIRMAN. Thank you, Senator Gonzales. Senator Lina, do you want to make any comment on this? SEN. LINA. Mr. President, I agree with the observation just made by Senator Gonzales out of the abundance of question. Then the new submission is, I believe, stating the obvious and therefore I have no further comment to make. Epilogue In praying for the nullification of the Philippine ratification of the WTO Agreement, petitioners are invoking this Courts constitutionally imposed duty to determine whether or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the

Senate in giving its concurrence therein via Senate Resolution No. 97. Procedurally, a writ of certiorari grounded on grave abuse of discretion may be issued by the Court under Rule 65 of the Rules of Court when it is amply shown that petitioners have no other plain, speedy and adequate remedy in the ordinary course of law. By grave abuse of discretion is meant such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction. [61] Mere abuse of discretion is not enough. It must be grave abuse of discretion as when the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility, and must be so patent and so gross as to amount to an evasion of a positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law. [62] Failure on the part of the petitioner to show grave abuse of discretion will result in the dismissal of the petition. [63]
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In rendering this Decision, this Court never forgets that the Senate, whose act is under review, is one of two sovereign houses of Congress and is thus entitled to great respect in its actions. It is itself a constitutional body independent and coordinate, and thus its actions are presumed regular and done in good faith. Unless convincing proof and persuasive arguments are presented to overthrow such presumptions, this Court will resolve every doubt in its favor. Using the foregoing well-accepted definition of grave abuse of discretion and the presumption of regularity in the Senates processes, this Court cannot find any cogent reason to impute grave abuse of discretion to the Senates exercise of its power of concurrence in the WTO Agreement granted it by Sec. 21 of Article VII of the Constitution. [64]
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It is true, as alleged by petitioners, that broad constitutional principles require the State to develop an independent national economy effectively controlled by Filipinos; and to protect and/or prefer Filipino labor, products, domestic materials and locally produced goods. But it is equally true that such principles -- while serving as judicial and legislative guides -- are not in themselves sources of causes of action. Moreover, there are other equally fundamental constitutional principles relied upon by the Senate which mandate the pursuit of a trade policy that serves the general welfare and utilizes all forms and arrangements of exchange on the basis of equality and reciprocity and the promotion of industries which are competitive in both domestic and foreign markets, thereby justifying its acceptance of said treaty. So too, the alleged impairment of sovereignty in the exercise of legislative and judicial powers is balanced by the adoption of the generally accepted principles of international law as part of the law of the land and the adherence of the Constitution to the policy of cooperation and amity with all nations. That the Senate, after deliberation and voting, voluntarily and overwhelmingly gave its consent to the WTO Agreement thereby making it a part of the law of the land is a legitimate exercise of its sovereign duty and power. We find no patent and gross arbitrariness or despotism by reason of passion or personal hostility in such exercise. It is not impossible to surmise that this Court, or at least some of its members, may even agree with petitioners that it is more advantageous to the national interest to strike down Senate Resolution No. 97. But that is not a legal reason to attribute grave abuse of discretion to the Senate and to nullify its decision. To do so would constitute grave abuse in the exercise of our own judicial power and duty. Ineludably, what the Senate did was a valid exercise of its authority. As to whether such exercise was wise,

beneficial or viable is outside the realm of judicial inquiry and review. That is a matter between the elected policy makers and the people. As to whether the nation should join the worldwide march toward trade liberalization and economic globalization is a matter that our people should determine in electing their policy makers. After all, the WTO Agreement allows withdrawal of membership, should this be the political desire of a member. The eminent futurist John Naisbitt, author of the best seller Megatrends, predicts an Asian Renaissance [65] where the East will become the dominant region of the world economically, politically and culturally in the next century. He refers to the free market espoused by WTO as the catalyst in this coming Asian ascendancy. There are at present about 31 countries including China, Russia and Saudi Arabia negotiating for membership in the WTO. Notwithstanding objections against possible limitations on national sovereignty, the WTO remains as the only viable structure for multilateral trading and the veritable forum for the development of international trade law. The alternative to WTO is isolation, stagnation, if not economic self-destruction. Duly enriched with original membership, keenly aware of the advantages and disadvantages of globalization with its on-line experience, and endowed with a vision of the future, the Philippines now straddles the crossroads of an international strategy for economic prosperity and stability in the new millennium. Let the people, through their duly authorized elected officers, make their free choice.
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WHEREFORE, the petition is DISMISSED for lack of merit. SO ORDERED. Narvasa, C.J., Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Kapunan, Mendoza, Francisco, Hermosisima, Jr., and Torres, Jr., JJ., concur. Padilla, and Vitug, JJ., in the result.

G.R. No. L-25024 March 30, 1970 TEODORO C. SANTIAGO, JR. Minor, Represented by his Mother, Mrs. Angelita C. Santiago, petitioner-appellant, vs. MISS JUANITA BAUTISTA, ROSALINDA ALPAS, REBECCA MATUGAS, MILKITA INAMAC, ROMEO AGUSTIN, AIDA CAMINO, LUNA SARMAGO, AURORA LORENA, SOLEDAD FRANCISCO and MR. FLOR MARCELO, respondentsappellees. Teodoro M. Santiago for petitioner-appellant. Ramon C. Carag for respondent-apellees.

BARREDO, J.: Appeal from the order of the Court of First Instance of Cotabato dismissing, on a motion to dismiss, its Civil Case No. 2012 for certiorari, injunction and damages on the ground that the complaint therein states no cause of action, and from the subsequent order of the court a quo denying the motion for the reconsideration of the said order of dismissal. The record shows that at the time Civil Case No. 2012 was commenced in the court below, appellant Teodoro Santiago, Jr. was a pupil in Grade Six at the public school named Sero Elementary School in Cotabato City. As the school year 1964-1965 was then about to end, the "Committee On The Rating Of Students For Honor" was constituted by the teachers concerned at said school for the purpose of selecting the "honor students" of its graduating class. With the school Principal, Mrs. Aurora Lorena, as chairman, and Juanita Bautista, Rosalinda Alpas, Rebecca Matugas, Milkita Inamac, Romeo Agustin, Aida Camino and Luna Sarmago, as members, the above-named committee deliberated and finally adjudged Socorro Medina, Patricia Ligat and Teodoro C. Santiago, Jr. as first, second and third honors, respectively. The school's graduation exercises were thereafter set for May 21, 1965; but three days before that date, the "third placer" Teodoro Santiago, Jr., represented by his mother, and with his father as counsel, sought the invalidation of the "ranking of honor students" thus made, by instituting the above-mentioned civil case in the Court of First Instance of Cotabato, against the above-named committee members along with the District Supervisor and the Academic Supervisor of the place. The corresponding complaint filed alleged, inter alia: that plaintiff-petitioner Teodoro C. Santiago, Jr. is a sixth grader at the Sero Elementary School in Cotabato City scheduled to be graduated on May 21st, 1965 with the honor rank of third place, which is disputed; that the teachers of the school had been made respondents as they compose the "Committee on the Rating of Student for Honor", whose grave abuse of

official discretion is the subject of suit, while the other defendants were included as Principal, District Supervisor and Academic Supervisor of the school; that Teodoro Santiago, Jr. had been a consistent honor pupil from Grade I to Grade V of the Sero Elementary School, while Patricia Ligat (second placer in the disputed ranking in Grade VI) had never been a close rival of petitioner before, except in Grade V wherein she ranked third; that Santiago, Jr. had been prejudiced, while his closest rival had been so much benefited, by the circumstance that the latter, Socorro Medina, was coached and tutored during the summer vacation of 1964 by Mrs. Alpas who became the teacher of both pupils in English in Grade VI, resulting in the far lead Medina obtained over the other pupil; that the committee referred to in this case had been illegally constituted as the same was composed of all the Grade VI teachers only, in violation of the Service Manual for Teachers of the Bureau of Public Schools which provides that the committee to select the honor students should be composed of all teachers in Grades V and VI; that there are direct and circumstantial matters, which shall be proven during the trial, wherein respondents have exercised grave abuse of discretion and irregularities, such as the changing of the final ratings on the grading sheets of Socorro Medina and Patricia Ligat from 80% to 85%, and some teachers giving petitioner a starting grade of 75% in Grade VI, which proves that there has already an intention to pull him to a much lower rank at the end of the school year; that several district examinations outside of teachers' daily units and other than periodical tests were given, ratings in which were heavily considered in the determination of periodical ratings, whereas according to the Academic Supervisor and Acting Division Superintendent of schools of the place such district examinations were not advisable; that there was a unanimous agreement and understanding among the respondent teachers to insult and prejudice the second and third honors by rating Socorro Medina with a perfect score, which is very unnatural; that the words "first place" in petitioner's certificate in Grade I was erased and replaced with the words "second place", which is an instance of the unjust and discriminating abuses committed by the respondent teachers in the disputed selection of honor pupils they made; that petitioner personally appealed the matter to the School Principal, to the District Supervisor, and to the Academic Supervisor, but said officials "passed the buck to each other" to delay his grievances, and as to appeal to higher authorities will be too late, there is no other speedy and adequate remedy under the circumstances; and, that petitioner and his parents suffered mental and moral damages in the amount of P10,000.00. They prayed the court, among others, to set aside the final list of honor students in Grade VI of the Sero Elementary School for that school year 1964-1965, and, during the pendency of the suit, to enjoin the respondent teachers from officially and formally publishing and proclaiming the said honor pupils in Grade VI in the graduation exercises the school was scheduled to hold on the 21st of May of that year 1965. The injunction prayed for was denied by the lower court in its order of May 20, 1965, the said court reasoning out that the graduation exercises were then already set on the following day, May 21, 1965, and the restraining of the same would be shocking to the school authorities, parents, and the community who had eagerly looked forward to the coming of that yearly happy event. As scheduled, the graduation exercises of the Sero Elementary School for the school year 1964-1965 was held on May 21, with the same protested list of honor students.

Having been required by the above-mentioned order to answer the petition within ten (10) days, respondents moved for the dismissal of the case instead. Under date of May 24, 1965, they filed a motion to dismiss, on the grounds (1) that the action for certiorari was improper, and (2) that even assuming the propriety of the action, the question brought before the court had already become academic. This was opposed by petitioner. In an order dated June 4, 1965, the motion to dismiss of respondents was granted, the court reasoning thus:
The respondents now move to dismiss the petition for being improper and for being academic. In order to resolve the motion to dismiss, the Court has carefully examined the petition to determine the sufficiency of the alleged cause of action constituting the special civil action of certiorari. The pertinent portions of the petition alleging 'grave abuse of discretion' are found in paragraphs 3, 4, 5, 6, 7, 8, 9 and 10. These allegations may be substantially summarized as follows: Paragraph 3 alleges that since grades one to six, the students closely contending for class honors were Socorro Medina, Teodoro Santiago, Jr., Dolores Dalican and Patricia Ligat. Socorro Medina obtained first honor thrice (grades I, V and VI); once second honor (grade IV), and twice third place (grades II and III). Teodoro Santiago, Jr. obtained first place once (grade IV); four times second place (grades I, II, III, and V) and once third place (grade VI). Dolores Dalican obtained twice first place (grades II, III); once third place (grade I).

Patricia Ligat once third place (grade V); and once second place (grade VI).
That as now ranked in the graduation Ligat is given second place while Teodoro Santiago, Jr., is given the third place only. This is the ranking now disputed by petitioner, Teodoro Santiago, Jr. Paragraph 4 alleges that Socorro Medina was tutored in the summer of 1964 by Mrs. Rosalinda Alpas who became her English teacher in the sixth grade; that as such, Mrs. Alpas unjustly favored Socorro against her rivals. Paragraph 5 alleges that the teachers who composed the committee on honor students are all grade six teachers while the Service Manual For Teachers provides that the committee shall be composed of the teachers from the fifth and sixth grades. Paragraph 6 alleges that there are direct and circumstantial evidence showing the change of ratings of Socorro Medina and Patricia Ligat from 80% to 85% and the intention to junk petitioner to a lower rank. Paragraph 7 alleges that the giving of district examinations upon which ratings were partly based were not advisable.

Paragraph 8 alleges that the teachers rated Socorro Medina a perfect pupil which is unnatural. Paragraph 9 alleges that on the first grade certificate of the petitioner the word "First Place" was erased and changed to "Second Place". Paragraph 10 alleges that petitioner personally appealed to the school authorities but they only 'passed the buck to each other.' SECOND PARAGRAPH VIOLATED Rule 65, Section 1 of the Rules of Court provides: 'Section 1. Petition for certiorari. When any tribunal, board, or officer exercising judicial functions, has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion and there is no appeal, nor any plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court alleging the facts with certainty and praying that judgment be rendered annulling or modifying the proceedings, as the law requires, of such tribunal, board or officer.' 'The petition shall be accompanied by a certified true copy of the judgment or order subject thereof, together with copies of all pleadings and documents relevant and pertinent thereto.' It is striking, indeed, that this petition has not been accompanied by a certified true copy of the judgment or order complained of, together with all pleadings and documents which are relevant thereto, as required by the second, paragraph of the aforequoted rule. This violation renders the petition extremely indefinite and uncertain. There is no written formal judgment or order of respondents that is submitted for revision or correction of this Court. This violation is fatal to the petition. ADMINISTRATIVE REMEDIES NEGLECTED All that the petition alleges is that the petitioner personally appealed to the school authorities who only 'passed the buck to each other.' This allegation does not show that petitioner formally availed of and exhausted the administrative remedies of the Department of Education. The petition implies that this is the first formal complaint of petitioner against his teachers. The administrative agencies of the Department of Education could have investigated the grievances of the petitioner with dispatch and give effective remedies, but petitioner negligently abandoned them. Petitioner cannot now claim that he lacked any plain, speedy and adequate remedy. NO GRAVE ABUSE OF DISCRETION Allegations relating to the alleged 'grave abuse of discretion' on the part of teachers refer to errors, mistakes, or irregularities rather than to real grave abuse of discretion that would amount to lack of jurisdiction. Mere commission of errors in the exercise of jurisdiction may not be corrected by means of certiorari. In view of the foregoing, the Court is of the opinion, and so holds, that the petition states no cause of action and should be, as it is hereby dismissed.

Upon receipt of a copy of the above-quoted order, the petitioner moved for the reconsideration thereof, but the same proved to be futile, hence, this appeal. Appellant here assails the holding of the lower court that his petition states no cause of action on the grounds discussed by the court a quo in the appealed order abovequoted (1) that the petition does not comply with the second paragraph of Sec. 1 of Rule 65 because it has not been accompanied by a certified true copy of the judgment or order subject thereof, together with copies of all pleadings and documents relevant and pertinent thereto; (2) that administrative remedies were not first exhausted; and (3) that there was no grave abuse of discretion on the part of the teachers who constituted the committee referred to. On the other hand, appellees maintain that the court below did not err in dismissing the case on said grounds. Further, they argue in favor of the questioned order of dismissal upon the additional ground that the "committee on the ratings of students for honor" whose actions are here condemned by appellant is not the "tribunal, board or officer exercising judicial functions" against which an action for certiorari may lie under Section 1 of Rule 65. The last point raised by appellees deserves first consideration, for if really the said committee of teachers does not fall within the category of the tribunal, board, or officer exercising judicial functions contemplated by Rule 65, further discussion of the issues raised by appellant may no longer be necessary. To resolve this problem the following tests may be employed:
In this jurisdiction certiorari is a special civil action instituted against 'any tribunal, board, or officer exercising judicial functions.' (Section 1, Rule 67.) A judicial function is an act performed by virtue of judicial powers; the exercise of a judicial function is the doing of something in the nature of the action of the court (34 C.J. 1182). In order that a special civil action of certiorari may be invoked in this jurisdiction the following circumstances must exist: (1) that there must be a specific controversy involving rights of persons or property and said controversy is brought before a tribunal, board or officer for hearing and determination of their respective rights and obligations. 'Judicial action is an adjudication upon the rights of parties who in general appear or are brought before the tribunal by notice or process, and upon whose claims some decision or judgment is rendered. It implies impartiality, disinterestedness, a weighing of adverse claims, and is inconsistent with discretion on the one hand for the tribunal must decide according to law and the rights of the parties or with dictation on the other; for in the first instance it must exercise its own judgment under the law, and not act under a mandate from another power. ... The character of its action in a given case must decide whether that action is judicial, ministerial, or legislative, or whether it be simply that of a public agent of the country or State, as in its varied jurisdictions it may by turns be each.' (In Re Saline County Subscription, 100 Am. Dec. 337, 338, cited in Southeastern Greyhound Lines v. Georgia Public Service Commission, 181 S. E. 836-837.) 'It may be said generally that the exercise of judicial function is to determine what the law is, and what the legal rights of parties are, with respect to a matter in controversy; and whenever an officer is clothed with that authority, and undertakes to determine those questions, he acts

judicially.' (State ex rel. Board of Commissioners of St. Louis County, et al. v. Dunn, 90 N. W. 772-773.) (2) the tribunal, board or officer before whom the controversy is brought must have the power and authority to pronounce judgment and render a decision on the controversy construing and applying the laws to that end. 'The phrase "judicial power" is not capable of a precise definition which would be applicable to all cases. The term has been variously defined as the authority to determine the rights of persons or property by arbitrating between adversaries in specific controversies at the instance of a party thereto; the authority exercised by that department of government which is charged with the declaration of what the law is and its construction so far as it is written law; the authority or power vested in the judges or in the courts; the authority vested in some court, officer, or persons to hear and determine when the rights of persons or property or the propriety of doing an act is the subject matter of adjudication; the power belonging to or emanating from a judge as such; the power conferred upon a public officer, involving the exercise of judgment and discretion in the determination of questions of right in specific cases affecting the interest of persons or property, as distinguished from ministerial power or authority to carry out the mandates of judicial power or the law; the power exercised by courts in hearing and determining cases before them, or some matter incidental thereto, and of which they have jurisdiction; the power of a court to decide and pronounce a judgment; the power which adjudicates upon and protects the rights and interests of individual citizens, and to that end construes and applies the law. "Judicial power" implies the construction of laws and the adjudication of legal rights. It includes the power to hear and determine but not everyone who may hear and determine has judicial power. The term "judicial power" does not necessarily include the power to hear and determine a matter that is not in the nature of a suit or action between the parties.' (34 C.J. 1183-1184.) . (3) the tribunal, board or officer must pertain to that branch of the sovereign power which belongs to the judiciary, or at least, which does not belong to the legislative or executive department. ... the distinction between legislative or ministerial functions and judicial functions is difficult to point out. What is a judicial function does not depend solely upon the mental operation by which it is performed or the importance of the act. In solving this question, due regard must be had to the organic law of the state and the division of power of government. In the discharge of executive and legislative duties, the exercise of discretion and judgment of the highest order is necessary, and matters of the greatest weight and importance are dealt with. It is not enough to make a function judicial that it requires discretion, deliberation, thought, and judgment. It must be the exercise of discretion and judgment within that subdivision of the sovereign power which belongs to the judiciary, or, at least, which does not belong to the legislative or executive department. If the matter, in respect to which it is exercised, belongs to either of the two last-named departments of government, it is not judicial. As to what is judicial and what is not seems to be better indicated by the nature of a thing, than its definition.' (Whealing & Elm Grove Railroad Co.

Appt. v. Town of Triadelphia, et al., 4 L.R.A. (N. S.) pp. 321, 328-329.) [Emphasis supplied]1 'WHAT ARE JUDICIAL OR QUASI JUDICIAL ACTS. It is difficult, if not impossible, precisely to define what are judicial or quasi judicial acts, and there is considerable conflict in the decisions in regard thereto, in connection with the law as to the right to the writ of certiorari. It is clear, however, that it is the nature of the act to be performed, rather than of the office, board, or body which performs it, that determines whether or not it is the discharge of a judicial or quasi-judicial function . It is not essential that the proceedings should be strictly and technically judicial, in the sense in which that word is used when applied to the courts of justice, but it is sufficient if they are quasi judicial. It is enough if the officers act judicially in making their decision, whatever may be their public character. ...' "In State ex rel. Board of Commrs. vs. Dunn (86 Minn. 301, 304), the following statements were made: 'The precise line of demarkation between what are judicial and what are administrative or ministerial functions is often difficult to determine. The exercise of judicial functions may involve the performance of legislative or administrative duties, and the performance of administrative or ministerial duties, may, in a measure, involve the exercise of judicial functions. It may be said generally that the exercise of judicial functions is to determine what the law is, and what the legal rights of parties are, with respect to a matter in controversy; and whenever an officer is clothed with that authority, and undertakes to determine those questions, he acts judicially.'2

It is evident, upon the foregoing authorities, that the so called committee on the rating of students for honor whose actions are questioned in this case exercised neither judicial nor quasi judicial functions in the performance of its assigned task. From the abovequoted portions of the decision cited, it will be gleaned that before tribunal board, or officer may exercise judicial or quasi judicial acts, it is necessary that there be a law that give rise to some specific rights of persons or property under which adverse claims to such rights are made, and the controversy ensuing therefrom is brought, in turn, before the tribunal, board or officer clothed with power and authority to determine what that law is and thereupon adjudicate the respective rights of the contending parties. As pointed out by appellees,3 however, there is nothing on record about any rule of law that provides that when teachers sit down to assess the individual merits of their pupils for purposes of rating them for honors, such function involves the determination of what the law is and that they are therefore automatically vested with judicial or quasi judicial functions. Worse still, this Court has not even been appraised by appellant of the pertinent provisions of the Service Manual of Teachers for Public Schools appellees allegedly violated in the composition of the committee they constituted thereunder, and, in the performance of that committee's duties. At any rate, the situation brought before Us in this case, the seemingly one of first impression, is not without substantial parallel. In the case of Felipe vs. Leuterio, etc., et al.,4 the issue presented for determination was whether or not the courts have the authority to reverse the award of the board of judges of an oratorical contest, and this Court declared that the judiciary has no power to reverse the award of the board of

judges of that contest and, for that matter, it would not interfere in literary contests, beauty contests and similar competitions. It was reasoned out thus:
For more than thirty years oratorical tilts have been held periodically by schools and colleges in this islands. Inter-collegiate oratorical competitions are of more recent origin. Members of this court have taken part in them either as contestants in their school days (In the College of Law, U.P. annual oratorical contest, first prize was awarded to Justice Montemayor in 1914 and to Justice Labrador in 1916), or as members of the board of judges afterwards. They know some few verdicts did not reflect the audience's preference and that errors have sometimes been ascribed to the award of the judges. Yet no party ever presumed to invoke judicial intervention; for it is unwritten law in such contests that the board's decision is final and unappealable. Like the ancient tournaments of the Sword, these tournaments of the Word apply the highest tenets of sportsmanship: finality of referee's verdict. No alibis, no murmurs of protest. The participants are supposed to join the competition to contribute to its success by striving their utmost: the prizes are secondary. No rights to the prizes may be asserted by the contestants, because theirs was merely the privilege to compete for the prize, and that privilege did not ripen into a demandable right unless and until they were proclaimed winners of the competition by the appointed arbiters or referees or judges. Incidentally, these school activities have been imported from the United States. We found in American jurisprudence no litigation questioning the determination of the board of judges. Now, the fact that a particular action has had no precedent during a long period affords some reason for doubting the existence of the right sought to be enforced, especially where occasion for its assertion must have often arisen; and courts are cautious before allowing it, being loath to establish a new legal principle not in harmony with the generally accepted views thereon. (See C.J.S. Vol. 1, p. 1012.) We observe that in assuming jurisdiction over the matter, the respondent judge reasoned out that where there is a wrong there is a remedy and that courts of first instance are courts of general jurisdiction. The flaw in his reasoning lies in the assumption that Imperial suffered some wrong at the hands of the board of judges. If at all, there was error on the part of one judge, at most. Error and wrong do not mean the same thing. 'Wrong' as used in the aforesaid principle is the deprivation or violation of a right. As stated before, a contestant has no right to the prize unless and until he or she is declared winner by the board of referees or judges. Granting that Imperial suffered some loss or injury, yet in law there are instances of 'damnum absque injuria'. This is one of them. If fraud or malice had been proven, it would be a different proposition. But then her action should be directed against the individual judge or judges who fraudulently or maliciously injured her. Not against the other judges.

But even were We to assume for the moment, as the court below apparently did, that judicial intervention might be sought in cases of this nature, still, We are inclined to sustain the order of dismissal appealed from for failure on the part of appellant to comply with the requirements of Section 1 of Rule 65. To be sure, the lower court's

holding that appellant's failure to accompany his petition with a copy of the judgment or order subject thereof together with copies of all pleadings and documents relevant and pertinent thereto "is fatal to his cause" is supported not only by the provision of that Rule but by precedents as well. In the case of Alajar, et al. vs. Court of Industrial Relations,5 where it was claimed by therein petitioners that the respondent court had acted with grave abuse of discretion in estimating certain rice harvests involved in the case in terms of cavans instead of cans, allegedly in complete disregard of the decision of the Court of First Instance of Batangas in Expropriation Proceedings No. 84 and of this Court in G.R. No. L-6191,6 and in ordering thereafter the division of the said rice harvests on the ratio of 70-30 in favor of the tenants, this Court denied the petition for certiorari on the ground, among others, of failure on the part of said petitioners to attach to their petition copies of the decisions allegedly violated. Speaking thru Mr. Justice J.B.L. Reyes then, this Court held:
The petition is patently without merit. In the first place, it is not even sufficient in form and substance to justify the issuance of the writ of certiorari prayed for. It charges that the Court of Industrial Relations abused its discretion in disregarding the decision of the Court of First Instance of Batangas in Expropriation Proceedings No. 84 and of this Court in G.R. No. L-6191; yet it does not attach to the petition the decisions allegedly violated by the Court below and point out which particular portion or portions thereof have been disregarded by the respondent Court.

The same principle was applied in the more recent case of NAWASA vs. Municipality of Libmanan, et al.,7 wherein this Court dismissed (by Resolution) the petition for certiorari and mandamus filed by the National Waterworks and Sewerage Authority against the Court of First Instance of Camarines Sur, and the municipality of Libmanan. In the following language, this Court emphasized the importance of complying with the said requirement of Rule 65:
While paragraph 3 of the petition speaks of the complaint filed by the respondent municipality with the respondent court for recovery of property with damages (Civil Case No. L-161) no copy thereof is attached to the petition. Similarly, paragraph 4 of the petition mentions the decision rendered by the respondent court on December 10, 1965, but no copy thereof is attached to the petition. Again, paragraph 5 of the petition speaks of the order of default entered by the respondent court and of the motion for reconsideration filed by petitioner in the case above-mentioned, but no copy of the order of default is attached to its petition. Bearing in mind that the petition under consideration was filed for the purpose of enjoining the respondent court from executing the decision rendered in Civil Case No. L161, the importance of the missing pleadings is obvious. Moreover, the petition is also for the purpose of securing an order commanding the respondent court to approve either the original or the amended record on appeal filed petition, but no copy of either is attached to its petition. In view of the foregoing, the petition under consideration is dismissed.

It might be true, as pointed out by appellant, that he received a copy of the programme of the graduation exercises held by the Sero Elementary School in the morning of the very day of that graduation exercises, implying that he could not have attached then a copy thereof (to show the decision of the committee of teachers in the ranking of students complained of) to his petition. The stubborn fact remains, however, that appellant had known of such decision of the said committee of teachers much earlier, as shown by the circumstance that according to him, even before the filing of his petition with the lower court on the 19th of May, 1965, he had personally appealed the said committee's decision with various higher authorities of the above-named school, who merely passed the buck to each other. Moreover, appellant mentions in his petition various other documents or papers as the Service Manual for Teachers allegedly violated by appellees in the constitution of their committee; altered grading sheets; and erasures in his Grade I certificate which appellant never bothered to attach to his petition. There could be no doubt then that he miserably failed to comply with the requirement of Rule 65 above-mentioned. With this conclusion, it is no longer necessary to pass upon the other two errors assigned by appellant. FOR THE FOREGOING CONSIDERATIONS, the judgment appealed from is affirmed, with costs against appellant. Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Castro, Fernando, Teehankee and Villamor, JJ., concur.

G.R. Nos. L-32613-14 December 27, 1972 PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. SIMEON. FERRER (in his capacity as Judge of the Court of First Instance of Tarlac, Branch I), FELICIANO CO alias LEONCIO CO alias "Bob," and NILO S. TAYAG alias Romy Reyes alias "Taba," respondents. Solicitor R. Mutuc for respondent Feliciano Co. Jose W. Diokno for respondent Nilo Tayag.

CASTRO, J.:p I. Statement of the Case Posed in issue in these two cases is the constitutionality of the Anti-Subversion Act, 1 which outlaws the Communist Party of the Philippines and other "subversive associations," and punishes any person who "knowingly, willfully and by overt acts affiliates himself with, becomes or remains a member" of the Party or of any other similar "subversive" organization. On March 5, 1970 a criminal complaint for violation of section 4 of the Anti-Subversion Act was filed against the respondent Feliciano Co in the Court of First Instance of Tarlac. On March 10 Judge Jose C. de Guzman conducted a preliminary investigation and, finding a prima facie case against Co, directed the Government prosecutors to file the corresponding information. The twice-amended information, docketed as Criminal Case No. 27, recites:
That on or about May 1969 to December 5, 1969, in the Municipality of Capas, Province of Tarlac, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, feloniously became an officer and/or ranking leader of the Communist Party of the Philippines, an outlawed and illegal organization aimed to overthrow the Government of the Philippines by means of force, violence, deceit, subversion, or any other illegal means for the purpose of establishing in the Philippines a totalitarian regime and placing the government under the control and domination of an alien power, by being an instructor in the Mao Tse Tung University, the training school of recruits of the New People's Army, the military arm of the said Communist Party of the Philippines. That in the commission of the above offense, the following aggravating circumstances are present, to wit: (a) That the crime has been committed in contempt of or with insult to public authorities; (b) That the crime was committed by a band; and afford impunity. (c) With the aid of armed men or persons who insure or afford impunity.

Co moved to quash on the ground that the Anti-Subversion Act is a bill of attainder. Meanwhile, on May 25, 1970, another criminal complaint was filed with the same court, sharing the respondent Nilo Tayag and five others with subversion. After preliminary investigation was had, an information was filed, which, as amended, reads:
The undersigned provincial Fiscal of Tarlac and State Prosecutors duly designated by the Secretary of Justice to collaborate with the Provincial Fiscal of Tarlac, pursuant to the Order dated June 5, above entitled case, hereby accuse Nilo S. Tayag, alias Romy Reyes alias TABA, ARTHUR GARCIA, RENATO (REY) CASIPE, ABELARDO GARCIA, MANUEL ALAVADO, BENJAMIN BIE alias COMMANDER MELODY and several JOHN DOES, whose identities are still unknown, for violation of REPUBLIC ACT No. 1700, otherwise known as the Anti-Subversion Law, committed as follows: That in or about March 1969 and for sometime prior thereto and thereafter, in the Province of Tarlac, within the jurisdiction of this Honorable Court, and elsewhere in the Philippines, the above-named accused knowingly, willfully and by overt acts organized, joined and/or remained as offices and/or ranking leaders, of the KABATAANG MAKABAYAN, a subversive organization as defined in Republic Act No. 1700; that BENJAMIN BIE and COMMANDER MELODY, in addition thereto, knowingly, willfully and by over acts joined and/or remained as a member and became an officer and/or ranking leader not only of the Communist Party of the Philippines but also of the New People's Army, the military arm of the Communist Party of the Philippines; and that all the abovenamed accused, as such officers and/or ranking leaders of the aforestated subversive organizations, conspiring, confederating and mutually helping one another, did then and there knowingly, willfully and feloniously commit subversive and/or seditious acts, by inciting, instigating and stirring the people to unite and rise publicly and tumultuously and take up arms against the government, and/or engage in rebellious conspiracies and riots to overthrow the government of the Republic of the Philippines by force, violence, deceit, subversion and/or other illegal means among which are the following: 1. On several occasions within the province of Tarlac, the accused conducted meetings and/or seminars wherein the said accused delivered speeches instigating and inciting the people to unite, rise in arms and overthrow the Government of the Republic of the Philippines, by force, violence, deceit, subversion and/or other illegal means; and toward this end, the said accused organized, among others a chapter of the KABATAANG MAKABAYAN in barrio Motrico, La Paz, Tarlac for the avowed purpose of undertaking or promoting an armed revolution, subversive and/or seditious propaganda, conspiracies, and/or riots and/or other illegal means to discredit and overthrow the Government of the Republic of the Philippines and to established in the Philippines a Communist regime. 2. The accused NILO TAYAG alias ROMY REYES alias TABA, together with FRANCISCO PORTEM alias KIKO Gonzales and others, pursued the above subversive and/or seditious activities in San Pablo City by recruiting members for the New People's Army, and/or by instigating and inciting the people to organize and unite for the purpose of overthrowing the Government of the Republic of the Philippines through armed revolution, deceit, subversion and/or other illegal means, and establishing in the Philippines a Communist Government. That the following aggravating circumstances attended the commission of the offense: (a) aid of armed men or persons to insure or afford impunity; and (b) craft, fraud, or disguise was employed.

On July 21, 1970 Tayag moved to quash, impugning the validity of the statute on the grounds that (1) it is a bill of attainder; (2) it is vague; (3) it embraces more than one subject not expressed in the title thereof; and (4) it denied him the equal protection of the laws. Resolving the constitutional issues raised, the trial court, in its resolution of September 15, 1970, declared the statute void on the grounds that it is a bill of attainder and that it is vague and overboard, and dismissed the informations against the two accused. The Government appealed. We resolved to treat its appeal as a special civil action for certiorari. II. Is the Act a Bill of Attainder? Article III, section 1 (11) of the Constitution states that "No bill of attainder or ex port facto law shall be enacted." 2 A bill of attainder is a legislative act which inflicts punishment without trial. 3 Its essence is the substitution of a legislative for a judicial determination of guilt. 4 The constitutional ban against bills of attainder serves to implement the principle of separation of powers 5 by confining legislatures to rule-making 6 and thereby forestalling legislative usurpation of the judicial function. 7 History in perspective, bills of attainder were employed to suppress unpopular causes and political minorities, 8 and it is against this evil that the constitutional prohibition is directed. The singling out of a definite class, the imposition of a burden on it, and a legislative intent, suffice to stigmatizea statute as a bill of attainder. 9 In the case at bar, the Anti-Subversion Act was condemned by the court a quo as a bill of attainder because it "tars and feathers" the Communist Party of the Philippines as a "continuing menace to the freedom and security of the country; its existence, a 'clear, present and grave danger to the security of the Philippines.'" By means of the Act, the trial court said, Congress usurped "the powers of the judge," and assumed "judicial magistracy by pronouncing the guilt of the CCP without any of the forms or safeguards of judicial trial." Finally, according to the trial court, "if the only issue [to be determined] is whether or not the accused is a knowing and voluntary member, the law is still a bill of attainder because it has expressly created a presumption of organizational guilt which the accused can never hope to overthrow." 1. When the Act is viewed in its actual operation, it will be seen that it does not specify the Communist Party of the Philippines or the members thereof for the purpose of punishment. What it does is simply to declare the Party to be an organized conspiracy for the overthrow of the Government for the purposes of the prohibition, stated in section 4, against membership in the outlawed organization. The term "Communist Party of the Philippines" issued solely for definitional purposes. In fact the Act applies not only to the Communist Party of the Philippines but also to "any other organization having the same purpose and their successors." Its focus is not on individuals but on conduct. 10

This feature of the Act distinguishes it from section 504 of the U.S. Federal LaborManagement Reporting and Disclosure Act of 1959 11 which, in U.S. vs. Brown, 12 was held to be a bill of attainder and therefore unconstitutional. Section 504 provided in its pertinent parts as follows:
(a) No person who is or has been a member of the Communist Party ... shall serve (1) as an officer, director, trustee, member of any executive board or similar governing body, business agent, manager, organizer, or other employee (other than as an employee performing exclusively clerical or custodial duties) of any labor organization. during or for five years after the termination of his membership in the Communist Party.... (b) Any person who willfully violates this section shall be fined not more than $10,000 or imprisoned for not more than one year, or both.

This statute specified the Communist Party, and imposes disability and penalties on its members. Membership in the Party, without more, ipso facto disqualifies a person from becoming an officer or a member of the governing body of any labor organization. As the Supreme Court of the United States pointed out:
Under the line of cases just outlined, sec. 504 of the Labor Management Reporting and Disclosure Act plainly constitutes a bill of attainder. Congress undoubtedly possesses power under the Commerce Clause to enact legislation designed to keep from positions affecting interstate commerce persons who may use of such positions to bring about political strikes. In section 504, however, Congress has exceeded the authority granted it by the Constitution. The statute does not set forth a generally applicable rule decreeing that any person who commits certain acts or possesses certain characteristics (acts and characteristics which, in Congress' view, make them likely to initiate political strikes) shall not hold union office, and leaves to courts and juries the job of deciding what persons have committed the specified acts or possessed the specified characteristics. Instead, it designates in no uncertain terms the persons who possess the feared characteristics and therefore cannot hold union office without incurring criminal liability members of the Communist Party. Communist Party v. Subversive Activities Control Board, 367 US 1, 6 L ed 2d 625, 81 S CT 1357, lend a support to our conclusion. That case involved an appeal from an order by the Control Board ordering the Communist Party to register as a "Communist-action organization," under the Subversive Activities Control Act of 1950, 64 Stat 987, 50 USC sec. 781 et seq. (1958 ed). The definition of "Communist-action organization" which the Board is to apply is set forth in sec. 3 of the Act: [A]ny organization in the United States ... which (i)is substantially directed, dominated, or controlled by the foreign government or foreign organization controlling the world Communist movement referred to in section 2 of this title, and(ii) operates primarily to advance the objectives of such world Communist movement... 64 Stat 989, 50 USC sec. 782 (1958 ed.) A majority of the Court rejected the argument that the Act was a bill of attainder, reasoning that sec. 3 does not specify the persons or groups upon which the deprivations setforth in the Act are to be imposed, but instead sets forth a general definition. Although

the Board has determined in 1953 that the Communist Party was a "Communist-action organization," the Court found the statutory definition not to be so narrow as to insure that the Party would always come within it: In this proceeding the Board had found, and the Court of Appeals has sustained its conclusion, that the Communist Party, by virtud of the activities in which it now engages, comes within the terms of the Act. If the Party should at anytime choose to abandon these activities, after it is once registered pursuant to sec. 7, the Act provides adequate means of relief. (367 US, at 87, 6 L ed 2d at 683)

Indeed, were the Anti-Subversion Act a bill of attainder, it would be totally unnecessary to charge Communists in court, as the law alone, without more, would suffice to secure their punishment. But the undeniable fact is that their guilt still has to be judicially established. The Government has yet to prove at the trial that the accused joined the Party knowingly, willfully and by overt acts, and that they joined the Party, knowing its subversive character and with specific intent to further its basic objective, i.e., to overthrow the existing Government by force deceit, and other illegal means and place the country under the control and domination of a foreign power. As to the claim that under the statute organizationl guilt is nonetheless imputed despite the requirement of proof of knowing membership in the Party, suffice it to say that is precisely the nature of conspiracy, which has been referred to as a "dragneet device" whereby all who participate in the criminal covenant are liable. The contention would be correct if the statute were construed as punishing mere membership devoid of any specific intent to further the unlawful goals of the Party. 13 But the statute specifically required that membership must be knowing or active, with specific intent to further the illegal objectives of the Party. That is what section 4 means when it requires that membership, to be unlawful, must be shown to have been acquired "knowingly, willfully and by overt acts." 14 The ingredient of specific intent to pursue the unlawful goals of the Party must be shown by "overt acts." 15 This constitutes an element of "membership" distinct from the ingredient of guilty knowledge. The former requires proof of direct participation in the organization's unlawful activities, while the latter requires proof of mere adherence to the organization's illegal objectives. 2. Even assuming, however, that the Act specifies individuals and not activities, this feature is not enough to render it a bill of attainder. A statute prohibiting partners or employees of securities underwriting firms from serving as officers or employees of national banks on the basis of a legislative finding that the persons mentioned would be subject to the temptation to commit acts deemed inimical to the national economy, has been declared not to be a bill of attainder. 16 Similarly, a statute requiring every secret, oath-bound society having a membership of at least twenty to register, and punishing any person who becomes a member of such society which fails to register or remains a member thereof, was declared valid even if in its operation it was shown to apply only to the members of the Ku Klux Klan. 17 In the Philippines the validity of section 23 (b) of the Industrial Peace Act, 18 requiring labor unions to file with the Department of Labor affidavits of union officers "to the effect that they are not members of the Communist Party and that they are not members of

any organization which teaches the overthrow of the Government by force or by any illegal or unconstitutional method," was upheld by this Court. 19 Indeed, it is only when a statute applies either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial does it become a bill of attainder. 20 It is upon this ground that statutes which disqualified those who had taken part in the rebellion against the Government of the United States during the Civil War from holding office, 21 or from exercising their profession, 22 or which prohibited the payment of further compensation to individuals named in the Act on the basis of a finding that they had engages in subversive activities, 23 or which made it a crime for a member of the Communist Party to serve as an officer or employee of a labor union, 24 have been invalidated as bills of attainder. But when the judgment expressed in legislation is so universally acknowledged to be certain as to be "judicially noticeable," the legislature may apply its own rules, and judicial hearing is not needed fairly to make such determination. 25 In New York ex rel. Bryant vs. Zimmerman, 26 the New York legislature passed a law requiring every secret, oath-bound society with a membership of at least twenty to register, and punishing any person who joined or remained a member of such a society failing to register. While the statute did not specify the Ku Klux Klan, in its operation the law applied to the KKK exclusively. In sustaining the statute against the claim that it discriminated against the Ku Klux Klan while exempting other secret, oath-bound organizations like masonic societies and the Knights of Columbus, the United States Supreme Court relied on common knowledge of the nature and activities of the Ku Klux Klan. The Court said:
The courts below recognized the principle shown in the cases just cited and reached the conclusion that the classification was justified by a difference between the two classes of associations shown by experience, and that the difference consisted (a) in a manifest tendency on the part of one class to make the secrecy surrounding its purpose and membership a cloak for acts and conduct inimical to personal rights and public welfare, and (b) in the absence of such a tendency on the part of the other class. In pointing out this difference one of the courts said of the Ku Klux Klan, the principal association in the included class: "It is a matter of common knowledge that this organization functions largely at night, its members disguised by hoods and gowns and doing things calculated to strike terror into the minds of the people;" and later said of the other class: "These organizations and their purposes are well known, many of them having been in existence for many years. Many of them are oath-bound and secret. But we hear no complaint against them regarding violation of the peace or interfering with the rights of others." Another of the courts said: "It is a matter of common knowledge that the association or organization of which the relator is concededly a member exercises activities tending to the prejudice and intimidation of sundry classes of our citizens. But the legislation is not confined to this society;" and later said of the other class: "Labor unions have a recognized lawful purpose. The benevolent orders mentioned in the Benevolent Orders Law have already received legislative scrutiny and have been granted special privileges so that the legislature may well consider them beneficial rather than harmful agencies." The third court, after recognizing "the potentialities of evil in secret societies," and observing that "the danger of certain organizations has been judicially demonstrated,"

meaning in that state, said: "Benevolent orders, labor unions and college fraternities have existed for many years, and, while not immune from hostile criticism, have on the whole justified their existence." We assume that the legislature had before it such information as was readily available including the published report of a hearing, before a committee of the House of Representatives of the 57th Congress relating to the formation, purposes and activities of the Klu Klux Klan. If so it was advised putting aside controverted evidence that the order was a revival of the Ku Klux Klan of an earlier time with additional features borrowed from the Know Nothing and the A. P. A. orders of other periods; that its memberships was limited to native-born, gentile, protestant whites; that in part of its constitution and printed creed it proclaimed the widest freedom for all and full adherence to the Constitution of the United States; in another exacted of its member an oath to shield and preserve "white supremacy;" and in still another declared any person actively opposing its principles to be "a dangerous ingredient in the body politic of our country and an enemy to the weal of our national commonwealth;" that it was conducting a crusade against Catholics, Jews, and Negroes, and stimulating hurtful religious and race prejudices; that it was striving for political power and assuming a sort of guardianship over the administration of local, state and national affairs; and that at times it was taking into its own hands the punishment of what some of its members conceived to be crimes.
27

In the Philippines the character of the Communist Party has been the object of continuing scrutiny by this Court. In 1932 we found the Communist Party of the Philippines to be an illegal association. 28 In 1969 we again found that the objective of the Party was the "overthrow of the Philippine Government by armed struggle and to establish in the Philippines a communist form of government similar to that of Soviet Russia and Red China." 29 More recently, in Lansang vs. Garcia, 30 we noted the growth of the Communist Party of the Philippines and the organization of Communist fronts among youth organizations such as the Kabataang Makabayan (KM) and the emergence of the New People's Army. After meticulously reviewing the evidence, we said: "We entertain, therefore, no doubts about the existence of a sizeable group of men who have publicly risen in arms to overthrow the government and have thus been and still are engaged in rebellion against the Government of the Philippines. 3. Nor is it enough that the statute specify persons or groups in order that it may fall within the ambit of the prohibition against bills of attainder. It is also necessary that it must apply retroactively and reach past conduct. This requirement follows from the nature of a bill of attainder as a legislative adjudication of guilt. As Justice Frankfurter observed, "frequently a bill of attainder was ... doubly objectionable because of its ex post facto features. This is the historic explanation for uniting the two mischiefs in one clause 'No Bill of Attainder or ex post facto law shall be passed.' ... Therefore, if [a statute] is a bill of attainder it is also an ex post facto law. But if it is not an ex post facto law, the reasons that establish that it is not are persuasive that it cannot be a bill of attainder." 31 Thus in Gardner vs. Board of Public Works, 32 the U.S. Supreme Court upheld the validity of the Charter of the City of Los Angeles which provided:

... [N]o person shall hold or retain or be eligible for any public office or employment in the service of the City of Los Angeles, in any office or department thereof, either elective or appointive, who has within five (5) years prior to the effective date of this section advised, advocated, or taught, or who may, after this section becomes effective, become a member of or affiliated with any group, society, association, organization or party which advises, advocates or teaches or has within said period of five (5) years advised, advocated, or taught the overthrow by force or violence of the Government of the United States of America or of the State of California.

In upholding the statute, the Court stressed the prospective application of the Act to the petitioner therein, thus:
... Immaterial here is any opinion we might have as to the charter provision insofar as it purported to apply restrospectively for a five-year period to its effective date. We assume that under the Federal Constitution the Charter Amendment is valid to the extent that it bars from the city's public service persons who, subsequently to its adoption in 1941, advise, advocate, or reach the violent overthrow of the Government or who are or become affiliated with any group doing so. The provisions operating thus prospectively were a reasonable regulation to protect the municipal service by establishing an employment qualification of loyalty to the State and the United States. ... Unlike the provisions of the charter and ordinance under which petitioners were removed, the statute in the Lovett case did not declare general and prospectively operative standards of qualification and eligibility for public employment. Rather, by its terms it prohibited any further payment of compensationto named individuals or employees. Under these circumstances, viewed against the legislative background, the statutewas held to have imposed penalties without judicial trial.

Indeed, if one objection to the bill of attainder is thatCongress thereby assumed judicial magistracy, them it mustbe demonstrated that the statute claimed to be a bill of attainderreaches past conduct and that the penalties it imposesare inescapable. As the U.S. Supreme Court observedwith respect to the U.S. Federal Subversive Activities ControlAct of 1950:
Nor is the statute made an act of "outlawry" or of attainderby the fact that the conduct which it regulates is describedwith such particularity that, in probability, few organizationswill come within the statutory terms. Legislatures may act tocurb behaviour which they regard as harmful to the public welfare,whether that conduct is found to be engaged in by manypersons or by one. So long as the incidence of legislation issuch that the persons who engage in the regulated conduct, bethey many or few, can escape regulation merely by altering thecourse of their own present activities, there can be no complaintof an attainder. 33

This statement, mutatis mutandis, may be said of theAnti-Subversion Act. Section 4 thereof expressly statesthat the prohibition therein applies only to acts committed"After the approval of this Act." Only those who "knowingly,willfully and by overt acts affiliate themselves with,become or remain members of the Communist Party of thePhilippines and/or its successors or of any subversive association"after June 20, 1957, are punished. Those whowere members of the Party or of any other subversive associationat the time of the enactment of the law, weregiven the opportunity of purging themselves of liability byrenouncing in writing and under oath their membershipin the

Party. The law expressly provides that such renunciationshall operate to exempt such persons from penalliability. 34 The penalties prescribed by the Act are thereforenot inescapable. III. The Act and the Requirements of Due Process 1. As already stated, the legislative declaration in section 2 of the Act that the Communist Party of the Philippinesis an organized conspiracy for the overthrow of theGovernment is inteded not to provide the basis for a legislativefinding of guilt of the members of the Party butrather to justify the proscription spelled out in section 4. Freedom of expression and freedom of association are sofundamental that they are thought by some to occupy a"preferred position" in the hierarchy of constitutional values. 35 Accordingly, any limitation on their exercise mustbe justified by the existence of a substantive evil. This isthe reason why before enacting the statute in question Congressconducted careful investigations and then stated itsfindings in the preamble, thus:
... [T]he Communist Party of the Philippines althoughpurportedly a political party, is in fact an organized conspiracyto overthrow the Government of the Republic of the Philippinesnot only by force and violence but also by deceit, subversionand other illegal means, for the purpose of establishing in thePhilippines a totalitarian regime subject to alien dominationand control; ... [T]he continued existence and activities of the CommunistParty of the Philippines constitutes a clear, present andgrave danger to the security of the Philippines; ... [I]n the face of the organized, systematice and persistentsubversion, national in scope but international in direction,posed by the Communist Party of the Philippines and its activities,there is urgent need for special legislation to cope withthis continuing menace to the freedom and security of the country.

In truth, the constitutionality of the Act would be opento question if, instead of making these findings in enactingthe statute, Congress omitted to do so. In saying that by means of the Act Congress has assumed judicial magistracy, the trial courd failed to takeproper account of the distinction between legislative fact and adjudicative fact. Professor Paul Freund elucidatesthe crucial distinction, thus:
... A law forbidding the sale of beverages containingmore than 3.2 per cent of alcohol would raise a question of legislativefact, i.e., whether this standard has a reasonable relationto public health, morals, and the enforcement problem. Alaw forbidding the sale of intoxicating beverages (assuming itis not so vague as to require supplementation by rulemaking)would raise a question of adjudicative fact, i.e., whether thisor that beverage is intoxicating within the meaning of the statuteand the limits on governmental action imposed by the Constitution. Of course what we mean by fact in each case is itselfan ultimate conclusion founded on underlying facts and oncriteria of judgment for weighing them. A conventional formulation is that legislative facts those facts which are relevant to the legislative judgment will not be canvassed save to determine whether there is a

rationalbasis for believing that they exist, while adjudicativefacts those which tie the legislative enactment to the litigant are to be demonstrated and found according to the ordinarystandards prevailing for judicial trials. 36

The test formulated in Nebbia vs. new York, 37 andadopted by this Court in Lansang vs. Garcia, 38 is that 'if laws are seen to have a reasonable relation to a proper legislative purpose, and are neither arbitrary nor discriminatory, the requirements of due process are satisfied, and judicial determination to that effect renders a court functus officio." The recital of legislative findings implements this test. With respect to a similar statement of legislative findingsin the U.S. Federal Subversive Activities Control Actof 1950 (that "Communist-action organizations" are controlledby the foreign government controlling the worldCommunist movement and that they operate primarily to"advance the objectives of such world Communist movement"),the U.S. Supreme Court said:
It is not for the courts to reexamine the validity of theselegislative findings and reject them....They are the productof extensive investigation by Committes of Congress over morethan a decade and a half. Cf. Nebbia v. New York, 291 U.S.502, 516, 530. We certainly cannot dismiss them as unfoundedirrational imaginings. ... And if we accept them, as we mustas a not unentertainable appraisal by Congress of the threatwhich Communist organizations pose not only to existing governmentin the United States, but to the United States as asovereign, independent Nation. ...we must recognize that thepower of Congress to regulate Communist organizations of thisnature is extensive. 39

This statement, mutatis mutandis, may be said of thelegislative findings articulated in the Anti-Subversion Act. That the Government has a right to protect itself againstsubversion is a proposition too plain to require elaboration.Self-preservation is the "ultimate value" of society. It surpasses and transcendes every other value, "forif a society cannot protect its very structure from armedinternal attack, ...no subordinate value can be protected" 40 As Chief Justice Vinson so aptly said in Dennis vs. United States: 41
Whatever theoretical merit there may be to the argumentthat there is a 'right' to rebellion against dictatorial governmentsis without force where the existing structure of government provides for peaceful and orderly change. We rejectany principle of governmental helplessness in the face of preparationfor revolution, which principle, carried to its logical conclusion,must lead to anarchy. No one could conceive that it isnot within the power of Congress to prohibit acts intended tooverthrow the government by force and violence.

2. By carefully delimiting the reach of the Act to conduct (as explicitly described in sectin 4 thereof), Congressreaffirmed its respect for the rule that "even throughthe governmental purpose be legitimate and substantial,that purpose cannot be pursued by means that broadly stiflefundamental personal liberties when the end can be more narrowly achieved." 42 The requirement of knowing membership,as distinguished from nominal membership, hasbeen held as a sufficient basis for penalizing membershipin a subversive organization. 43 For, as has been stated:

Membership in an organization renders aid and encouragement to the organization; and when membership is acceptedor retained with knowledge that the organization is engaged inan unlawful purpose, the one accepting or retaining membershipwith such knowledge makes himself a party to the unlawfulenterprise in which it is engaged. 44

3. The argument that the Act is unconstitutionallyoverbroad because section 2 merely speaks of "overthrow"of the Government and overthrow may be achieved by peaceful means, misconceives the function of the phrase"knowingly, willfully and by overt acts" in section 4. Section 2 is merely a legislative declaration; the definitionsof and the penalties prescribed for the different acts prescribedare stated in section 4 which requires that membershipin the Communist Party of the Philippines, to be unlawful, must be acquired "knowingly, willfully and by overt acts." Indeed, the first "whereas" clause makes clear thatthe overthrow contemplated is "overthrow not only by forceand violence but also be deceit, subversion and other illegalmeans." The absence of this qualificatio in section 2 appearsto be due more to an oversight rather than to deliberateomission. Moreover, the word "overthrow' sufficiently connotesthe use of violent and other illegal means. Only in a metaphoricalsense may one speak of peaceful overthrow ofgovernments, and certainly the law does not speak in metaphors.In the case of the Anti-Subversion Act, the use ofthe word "overthrow" in a metaphorical sense is hardlyconsistent with the clearly delineated objective of the "overthrow,"namely, "establishing in the Philippines a totalitarianregime and place [sic] the Government under thecontrol and domination of an alien power." What thisCourt once said in a prosecution for sedition is appropos: "The language used by the appellant clearly imported anoverthrow of the Government by violence, and it should beinterpreted in the plain and obvious sense in which it wasevidently intended to be understood. The word 'overthrow'could not have been intended as referring to an ordinarychange by the exercise of the elective franchise. The useof the whip [which the accused exhorted his audience to useagainst the Constabulary], an instrument designed toleave marks on the sides of adversaries, is inconsistentwith the mild interpretation which the appellant wouldhave us impute to the language." 45 IV. The Act and the Guaranty of Free Expression As already pointed out, the Act is aimed against conspiracies to overthrow the Government by force, violence orother illegal means. Whatever interest in freedom of speechand freedom of association is infringed by the prohibitionagainst knowing membership in the Communist Party ofthe Philippines, is so indirect and so insubstantial as to beclearly and heavily outweighed by the overriding considerationsof national security and the preservartion of democraticinstitutions in his country. The membership clause of the U.S. Federal Smith Actis similar in many respects to the membership provision ofthe Anti-Subversion Act. The former provides:
Whoever organizes or helps or attempts to organize anysociety, group, or assembly of persons who teach, advocate, orencourage the overthrow or destruction of any such

governmentby force or violence; or becomes or is a member of, or affiliatedwith, any such society, group or assembly of persons, knowingthe purpose thereof Shall be fined not more than $20,000 or imprisoned notmore than twenty years, or both, and shall be ineligible for emplymentby the United States or any department or agencythereof, for the five years next following his conviction.... 46

In sustaining the validity of this provision, the "Court said in Scales vs. United States: 47
It was settled in Dennis that advocacy with which we arehere concerned is not constitutionally protected speech, and itwas further established that a combination to promote suchadvocacy, albeit under the aegis of what purports to be a politicalparty, is not such association as is protected by the firstAmendment. We can discern no reason why membership, whenit constitutes a purposeful form of complicity in a group engagingin this same forbidden advocacy, should receive anygreater degree of protection from the guarantees of that Amendment.

Moreover, as was held in another case, where the problemsof accommodating the exigencies of self-preservationand the values of liberty are as complex and intricate as inthe situation described in the legislative findings stated inthe U.S. Federal Subversive Activities Control Act of 1950,the legislative judgment as to how that threat may best bemet consistently with the safeguards of personal freedomsis not to be set aside merely because the judgment of judgeswould, in the first instance, have chosen other methods. 48 For in truth, legislation, "whether it restrains freedom tohire or freedom to speak, is itself an effort at compromisebetween the claims of the social order and individual freedom,and when the legislative compromise in either case isbrought to the judicial test the court stands one step removedfrom the conflict and its resolution through law." 49 V. The Act and its Title The respondent Tayag invokes the constitutional commandthat "no bill which may be enacted into law shall embrace more than one subject which shall be expressed in the title of the bill." 50 What is assailed as not germane to or embraced in thetitle of the Act is the last proviso of section 4 which reads:
And provided, finally, That one who conspires with anyother person to overthrow the Government of the Republic ofthe Philippines, or the government of any of its political subdivisionsby force, violence, deceit, subversion or illegal means,for the purpose of placing such Government or political subdivisionunder the control and domination of any lien power, shallbe punished by prision correccional to prision mayor with allthe accessory penalties provided therefor in the same code.

It is argued that the said proviso, in reality, punishes notonly membership in the Communist Party of the Philippinesor similar associations, but as well "any conspiracyby two persons to overthrow the national or any local governmentby illegal means, even if their intent is not to establisha totalitarian regime, burt a democratic

regime, evenif their purpose is not to place the nation under an aliencommunist power, but under an alien democratic power likethe United States or England or Malaysia or even an anti-communistpower like Spain, Japan, Thailand or Taiwanor Indonesia." The Act, in addition to its main title ("An Act to Outlawthe Communist Party of the Philippines and SimilarAssociations, Penalizing Membership Therein, and forOther Purposes"), has a short title. Section 1 providesthat "This Act shall be known as the Anti-Subversion Act."Together with the main title, the short title of the statuteunequivocally indicates that the subject matter is subversionin general which has for its fundamental purpose the substitutionof a foreign totalitarian regime in place of theexisting Government and not merely subversion by Communistconspiracies.. The title of a bill need not be a catalogue or an indexof its contents, and need not recite the details of the Act. 51 It is a valid title if it indicates in broad but clear termsthe nature, scope, and consequences of the proposed lawand its operation. 52 A narrow or technical construction isto be avoided, and the statute will be read fairly and reasonablyin order not to thwart the legislative intent. We holdthat the Anti-Subversion Act fully satisfies these requirements. VI. Conclusion and Guidelines In conclusion, even as we uphold the validity of theAnti-Subversion Act, we cannot overemphasize the needfor prudence and circumspection in its enforcement, operatingas it does in the sensitive area of freedom of expressionand belief. Accordingly, we set the following basic guidelines to be observed in any prosecution under the Act.The Government, in addition to proving such circumstancesas may affect liability, must establish the following elementsof the crime of joining the Communist Party of the Philippinesor any other subversive association: (1) In the case of subversive organizations other thanthe Communist Party of the Philippines, (a) that thepurpose of the organization is to overthrow the presentGovernment of the Philippines and to establish in thiscountry a totalitarian regime under the domination of aforeign power; (b) that the accused joined such organization;and (c) that he did so knowingly, willfully and byovert acts; and (2) In the case of the Communist Party of the Philippines,(a) that the CPP continues to pursue the objectiveswhich led Congress in 1957 to declare it to be an organizedconspiracy for the overthrow of the Government by illegalmeans for the purpose of placing the country under thecontrol of a foreign power; (b) that the accused joined theCPP; and (c) that he did so willfully, knowingly and byovert acts. We refrain from making any pronouncement as to thecrime or remaining a member of the Communist Party ofthe Philippines or of any other subversive association: weleave this matter to future determination.

ACCORDINGLY, the questioned resolution of September15, 1970 is set aside, and these two cases are herebyremanded to the court a quo for trial on the merits. Costs de oficio. Makalintal, Zaldivar, Teehankee, Barredo and Esguerra, JJ., concur. Concepcion, C.J., concurs in the result. Makasiar and Antonio, JJ., took no part.

G.R. No. L-30001 June 23, 1970 THE DIRECTOR OF PRISONS and THE EXECUTIVE SECRETARY, petitioners, vs. ANG CHO KIO @ ANG MING HUY and THE COURT OF APPEALS, respondents. Office of the Solicitor General Felix V. Makasiar and Solicitor Bernardo P. Pardo for petitioners. Norberto J. Quisumbing for respondents.

ZALDIVAR, J.: An appeal by certiorari, by the Solicitor General in behalf of the Director of Prisons and the Appeals in CA-G.R. No. 39018-R of said Court, entitled "Ang Cho Kio (Ang Ming Huy) Petitioner-Appellee versus The Director of Prisons and the Executive Secretary, RespondentsAppellees." 1 In his petition the Solicitor General prays this Court "to render judgment ordering the striking out from said decision of the portions recommending to the Executive Secretary 'to allow the (petitioner) (respondent Ang Cho Kio @ Ang Ming Huy) to leave this country in the first available transportation abroad' but otherwise affirming the dismissal of the petition for habeas corpus, with costs in all instances against respondent Ang Cho Kio @ Ang Ming Huy." The pertinent facts for the purposes of this decision, as shown in the record, are as follows: Respondent Ang Cho Kio @ Ang Ming Huy had been charged, tried and convicted of various offenses committed in the Philippines and was sentenced to suffer penalties, to wit: a total of forty-five (45) years, ten (10) months and twenty one (21) days of imprisonment, P6,000 indemnity, and P5,000 moral damages, plus life imprisonment and P6,000 indemnity. 2 After serving six and one-half (6-) years of his sentence said respondent was granted conditional pardon on July 4, 1959 by the President of the Philippines. The conditional pardon partly reads as follows:
By virtue of the authority conferred upon me by the Constitution, and upon the recommendation of the Board of Pardons and Parole, the unexecuted portions of the prison terms of prisoner ANG CHO KIO @ KIWA @ PHILIPP ANG @ ANG TIU CHIO @ KE WA @ LUCIO LEE @ GO ONG @ MR. ANG @ GO ANG @ MR. ONG is hereby remitted on condition that he will voluntarily leave the Philippines upon his release and never to return to this country. Should the above-named prisoner refuse to accept said condition, be shall continue serving his sentence and upon the expiration thereof, he shall be deported from the Philippines for being an undesirable alien. Ang Cho Kio duly accepted the conditions of his pardon and actually left the Philippines for Taipeh, Nationalist China, on July 28, 1959.

In the evening of June 26, 1966 Ang Cho Kio arrived at the Manila International Airport on a Philippine Air Lines plane from Taipeh, travelling under the name "Ang Ming Huy." He held a round-trip ticket from Taipeh to Honolulu, to San Francisco, to Los Angeles, to Chicago, to Washington D.C. to New York, to Vancouver, to Tokyo, to Seoul, to Osaka, to Taipeh to Bangkok, to Saigon, to Hongkong and back to Taipeh. He was booked on Philippine Air Lines earliest connecting flight to Honolulu on June 29, 1966 at 6:30 p.m., or with a stop-over of about 72 hours in Manila. He surrendered his passport to the immigration authorities at the Manila International Airport, and was issued a note that his departure was scheduled for June 29, 1966 at 6:30 p.m. He left his luggage at the airport and was issued claim tags. He registered for a three-day stay at the El Presidente Hotel at Paraaque, Rizal. He contacted his two friends in Manila, Lim Pin and Go Bon Kim. These two friends invited him to stay longer in the Philippines. On June 28, 1966 he and his two friends went to the Bureau of Immigration, where his friend Lim Pin signed a letter addressed to the Commissioner of Immigration requesting for a fourteen-day extension of stay in the Philippines for him. Ang Cho Kio was identified by inspector Mariano Cristi of the Immigration Bureau as the Ang Cho Kio who was deported to Taipeh on July 18, 1959. His identity having been established, Ang Cho Kio was arrested, and the immigration authorities conducted an investigation regarding his presence in the Philippines. The immigration authorities did not allow him to proceed with his trip to Honolulu. On July 5, 1966 the Executive Secretary, by authority of the President, ordered him recommitted to prison to serve the unexpired portion of the sentence that were imposed on him, for having violated the conditioned of his pardon. The supplemental order of recommitment reads as follows:
TO THE DIRECTOR OF PRISONS MUNTINLUPA, RIZAL WHEREAS, ANG CHO KIO @ KIWA & PHILIPP ANG @ ANG TIU CHIO @ KI WA @ LUCIO DEE @ GO ONG @ MR. ANG @ GO ANG @ MR. ONG was granted conditional pardon by the President of the Philippines on July 4, 1959, upon the condition that he will voluntarily leave the Philippines upon his release and never to return to this country; and WHEREAS, said ANG CHO KIO has violated the condition of his pardon in that on June 26, 1966, he returned to this country from Taipei and gained entry under an assumed name, ANG MING HUY, failed to leave on the first available connecting flight to Honolulu, his alleged destination; instead requested a fourteen day extension of his 72-hour transient stop-over; and had in December 1965 applied for a temporary visitor's visa to Manila also under his assumed name, ANG MING HUY; NOW, THEREFORE, by virtue of the authority conferred upon the President of the Philippines by Section 64(i) of the Revised Administrative Code, you are hereby ordered to recommit to prison said ANG CHO KIO @ KIWA @ PHILIPP ANG @ ANG TIU CHIO @ KI WA @ LUCIO DEE @ GO ONG @ MR. ANG @ GO ANG @ MR. ONG @ ANG MING HUY to serve the unexpired portion of the sentences for which he was originally committed to prison, and upon expiration thereof, to deliver said person to the custody of the Commissioner of Immigration for immediate deportation for being an undesirable alien. Manila, July 5, 1966.

By Authority of the President: (Sgd.) RAFAEL M. SALAS Executive Secretary RS/ara.

Ang Cho Kio filed with the Executive Secretary a motion, dated August 29, 1966, for the reconsideration of the supplemental order of recommitment. The Executive Secretary failed to act on the motion for reconsideration, and so on October 5, 1966 Ang Cho Kio filed a petition for a writ of habeas corpus with the Court of First Instance of Rizal (Pasay Branch), making as respondents in said petition the Director of Prisons and the Executive secretary. Under date of October 10, 1966, the officer-in-charge of the Bureau of Prisons filed his return. Under date of October 17, 1966, the Solicitor General filed a return for the Director of Prisons and the Executive Secretary. After due hearing the Court of First Instance of Rizal, on January 31, 1967, rendered a decision dismissing the petition for habeas corpus. The Court of First Instance of Rizal held that Ang Cho Kio @ Ang Ming Huy was validly recommitted to prison by the President of the Philippines in the exercise of his prerogatives pursuant to the provisions of Section 64(i) of the Revised Administrative Code. Ang Cho Kio appealed to the Court of Appeals from the decision of the Court of First Instance of Rizal. In the decision of a special division of five justices, with three justices concurring, and two justices concurring and dissenting, the Court of Appeals rendered a decision which in effect affirmed the decision of the Court of First Instance of Rizal dismissing Ang Cho Kio's petition for habeas corpus. We read the following in the majority opinion:
It having been settled that Section 64(i) of the Revised Administrative Code is still in force, and that the respondent Executive Secretary, in the name and by authority of the President, exercised the power of recommitment herein under the provisions of said Code, and not under Art. 159 of the Revised Penal Code, it becomes apparent that any discussion regarding failure to file the corresponding indictment and the presence or absence of criminal intent, will be off-tangent. On the contrary, the issue, in this connection, is whether the courts of justice may interfere in the exercise by the President, thru his Executive Secretary, of his administrative power of recommitment. Again, it is settled jurisprudence that the Chief Executive may determine, alone and by himself, whether the condition attached to a pardon given by him has been violated; and in the exercise of this prerogative, the courts may not interfere, however erroneous the findings may be (Espuelas v. The Provincial Warden, supra; Tesoro v. Director of Prisons, 68 Phil. 154).

The aforequoted portion of the majority opinion affirms the reasons of the Court of First Instance of Rizal in dismissing the petition for habeas corpus. However, the majority opinion contains the recommendation that Ang Cho Kio
... be sent out at once from this country and that he be allowed to leave Muntinlupa Prisons under guard only when he has been booked for outward flight at the Manila International Airport so as to avoid the possibility of any further violation of his conditional pardon. At any rate it would be to the best interest of the security and peace of this country to have the petitioner expatriated from the Philippines, instead of being recommitted for a long duration of time to prison where his presence may constitute a

constant menace to our country's welfare and bring about some sinister influence among the people with whom he will associate or come in contact.

Then the dispositive portion of the majority opinion reads as follows:

FOR ALL OF THE FOREGOING REASONS, the petition herein filed is hereby dismissed, with costs against the petitioner, and with a reiteration of the recommendation to allow the petitioner to leave this country in the first available transportation abroad made in the course of this decision. Let a copy of this decision be furnished the Executive Secretary.

The concurring and dissenting opinion of the two justices opens with the following statement:
We concur with the majority opinion insofar as the dismissal of the petition for writ of habeas corpus of petitioner-appellant Ang Cho Kio is concerned, for such dismissal, in effect, is equivalent to an affirmance of the appealed decision. However, we beg to dissent from that portion of the majority opinion recommending that said petitionerappellant be allowed to leave this country by the first available transportation.

In due time the Solicitor General filed with the Court of Appeals a motion for reconsideration, praying for the deletion from the majority opinion of the recommendation to allow Ang Cho Kio to leave the country on the first available transportation abroad. The Court of Appeals, by a vote of three to two in the special division which decided the case, denied the motion. Hence this appeal by certiorari by the Solicitor General to this Court. It is now contended by the Solicitor General that the majority of the special division of five justices of the Court of Appeals erred in making a recommendation to allow respondent Ang Cho Kio to have this country on the first available transportation abroad. The Solicitor General maintains that the recommendation is not a part of the decision binding upon the parties, and is uncalled for; that it gives the decision a political complexion, because courts are not empowered to make such a recommendation, nor is it inherent or incidental in the exercise of judicial powers; that there is no law which gives the court the authority to recommend to the President the voluntary departure of an undesirable alien who is lawfully committed to jail; that the deportation of aliens sentenced by the courts for violation of the laws of the land, and even the act of merely allowing such convicted aliens to voluntarily leave the country, is an act of state exercised solely in the discretion of the Chief Executive. It is urged by the Solicitor General that the act of sending an undesirable alien out of the country is political in character, and the courts should not interfere with, nor attempt to influence, the political acts of the Chief Executive. In a motion dated April 7, 1969, Ang Cho Kio manifested that he waived his right to file an answer to any brief filed by the Solicitor General. 4 We agree with the Solicitor General. The case before the Court of Appeals was for habeas corpus. The only question to be resolved by the Court of Appeals was whether,

or not, the Court of First Instance of Rizal, had rightly dismissed the petition of Ang Cho Kio for habeas corpus. The Court of Appeals was not called upon to review any sentence imposed upon Ang Cho Kio. The sentence against him had long become final, and, in fact, he has served part of the sentence when he was extended pardon on July 4, 1959, upon the condition that he should leave the country, never to return. The opinion of the three justices of the special division of the Court of Appeals, to which the two other justices have concurred, found that the recommitment to prison of Ang Cho Kio was done in the exercise by the President of the Philippines of his power pursuant to the provision of Section 64(i) of the Revised Administrative Code, and the courts should not interfere with the exercise of that power. The majority opinion should have been limited to the affirmance of the decision of the lower court, and no more. The recommendatory power of the courts in this jurisdiction are limited to those expressly provided in the law and such law is the provision of Section 5 of the Revised Penal Code, as follows:
Whenever a court has knowledge of any act which it may deem proper to repress and which is not punishable by law, it shall render the proper decision, and shall report to the Chief Executive, through the Department of Justice, the reasons which induce the court to believe that said act should be made the subject of penal legislation. In the same way the court shall submit to the Chief Executive, through the Department of Justice such statement as may be deemed proper, without suspending the execution of the sentence, when a strict enforcement of the provisions of this Code would result in the imposition of a clearly excessive penalty, taking into consideration the degree of malice and the injury caused by the offense.

Certainly, the recommendation in the majority opinion of the special division of the Court of Appeals, now in question, is not authorized under the aforequoted provision of Article 5 of the Revised Penal Code. The Court of Appeals was not called upon to review any sentence that was imposed on Ang Cho Kio. It was simply called upon to determine whether Ang Cho Kio was illegally confined, or not, in the insular penitentiary under the Director of Prisons. We do not consider it proper that the majority of the justices in the special division make a recommendation that would suggest a modification or a correction of the act of the Chief Executive, after the same justices have said in their opinion "that the Chief Executive may determine, alone and by himself, whether the condition attached to a pardon given by him had been violated; and in the exercise of this prerogative, the courts may not interfere, however erroneous the findings may be." When the Chief Executive, exercising his powers pursuant to Section 64(i) of the Revised Administrative Code, ordered Ang Cho Kio recommitted to prison, it is assumed that the Chief Executive had decided that Ang Cho Kio should be dealt with that way under the circumstances. For the court to suggest to the Chief Executive to modify his decision to recommit Ang Cho Kio to prison by allowing him to leave the country instead is indeed to interfere with the functions of the Chief Executive. It would be, as urged by the Solicitor General, an interference on, or an attempt to influence, the exercise by the Chief Executive of the political powers of his office. The matter of whether an alien who violated the laws in this country may remain or be deported is a political question that should be left entirely to the Chief Executive to decide. Under the

principle of separation of powers, it is not within the province of the judiciary to express an opinion, or express a suggestion, that would reflect on the wisdom or propriety of the action of the Chief Executive on matters purely political in nature. It may be said that the recommendation embodied in the majority opinion of the special division of the Court of Appeals simply represents the private opinion of the three justices, and judges should be left free to express even their private opinions in judicial decisions. We believe, however, that the better practice should be that the decision of a court should contain only opinion that is relevant to the question that is before the court for decision. After all, courts are not concerned with the wisdom or morality of laws, but only in the interpretation and application of the law. We believe that judges should refrain from expressing irrelevant opinions in their decisions which may only reflect unfavorably upon their competence and the propriety of their judicial actuations. However, of the ten members of the Court, as presently constituted, only five are of the opinion that the recommendation embodied in the decision of the majority of the special division of the Court of Appeals, now in question, should be deleted from the decision. 5 Two members of the Court are of a different opinion, 6 and three others did not take part in the decision because of their official actuations relative to the case of respondent Ang Cho Kio before it reached this Court. 7 There is, therefore, one vote less than the majority of the Court that is necessary to grant the certiorari prayed for. WHEREFORE, the petition for writ of certiorari is denied, and the decision of the special division of the Court of Appeals stands. No costs. Concepcion, C.J., Reyes, J.B.L. and Dizon, JJ., concur. Teehankee, Barredo and Villamor, JJ., took no part.

G.R. No. L-21064 June 30, 1970 J. M. TUASON & CO., INC., petitioner-appellee, vs. THE LAND TENURE ADMINISTRATION, THE SOLICITOR GENERAL and THE AUDITOR GENERAL, respondents-appellants. Araneta, Mendoza and Papa for petitioner-appellee. Besa, Aguilar and Gancia, Office of the Solicitor General Felix V. Makasiar, Assistant Solicitor General Frine' C. Zaballero, Solicitor Rosalio A. de Leon and Special Attorney Magno B. Pablo for respondents-appellants. RESOLUTION

FERNANDO, J.: From our decision of February 18, 1970, reversing the judgment of the lower court holding that Republic Act No. 2616 as amended is unconstitutional, printed motion for reconsideration was filed by petitioner-appellee on March 31, 1970 reiterating its arguments as to its alleged invalidity for being violative of the due process and equal protection guarantees. On May 27, 1970, a detailed opposition to such a motion for reconsideration was filed by the Solicitor General, the Honorable Felix Q. Antonio, on behalf of respondents-appellants. Then came a rejoinder of petitioner, on June 15, 1970, to the pleading of the Solicitor General. The motion for reconsideration is thus ripe for determination. With due recognition of the vigor and earnestness with which petitioner argued its motion, based on what it considered to be our applicable decisions, the Court cannot grant the same. Our decision stands. 1. It was a unanimous Court that could not locate a constitutional infirmity vitiating Republic Act No. 2616 directing the expropriation of the Tatalon Estate in Quezon City. There are points of differences in the three written opinions, but there is none as to the challenged legislative act being invulnerable on the grounds therein asserted to justify its sought for nullification. While, to repeat, petitioner apparently remains unconvinced, standing fast on the contentions to which it would seek to impart greater plausibility, still the intent of the framers of the Constitutional Convention, as shown not only by the specific provisions allowing the expropriation of landed estates, but also by the social justice provision as reflected in our decisions, save possibly Republic vs. Baylosis, 1 preclude a favorable action on the impassioned plea of petitioner for a reconsideration of our decision. At any rate, petitioner-appellee can take comfort in the separate opinion of Justice Teehankee, with which four other members of the Court, including the Chief Justice, are in agreement, to enable it to raise questions, the answers to which, if its view would be sustained, would certainly afford sufficient protection to what it believes to be an unconstitutional infringement on its property rights.

2. It may not be amiss to make more explicit and categorical what was held in our opinion that Section 4 of Republic Act No. 2616 prohibiting a suit for ejectment proceedings or the continuance of one already commenced even in the absence of expropriation proceedings, is unconstitutional, as held in Cuatico v. Court of Appeals. 2 Greater emphasis likewise should be laid on our holding that while an inaccuracy apparent on the face of the challenged statute as to the ownership of the Tatalon Estate does not suffice to call for its invalidity, still to erase even a fanciful doubt on the matter, the statement therein found in Section 1 of the Act that in addition to petitioner-appellee, Gregorio Araneta & Co., Inc. and Florencio Deudor, et al. are included, cannot be understood as conferring on any juridical or natural persons, clearly not entitled thereto, dominical rights over such property in question. 3. In the aforesaid decision of Cuatico v. Court of Appeals, reference was made to the amendatory Act, Republic Act No. 3453 to Section 4 as it originally was worded in Republic Act No. 2616, the amendment consisting of the following: "Upon approval of this amendatory Act, no ejectment proceedings shall be instituted or prosecuted against the present occupants of any lot in said Tatalon Estate, and no ejectment proceedings already commenced shall be continued, and such lot or any portion thereof shall not be sold by the owners of said estate to any person other than the present occupant without the consent of the latter given in a public instrument." 3 The question before the, Court, according, to the opinion penned by Justice Bautista Angelo, was: "Are the provisions embodied in the amendatory Act which prescribe that upon approval of said Act no ejectment proceedings shall be instituted or prosecuted against any occupant of any lot in the Tatalon Estate, or that no ejectment proceedings already commenced shall be continued, constitutional and valid such that it may be said that the Court of Appeals abused its discretion in denying the petitions for suspension filed by petitioners.?" 4 Then came this portion of the opinion: "This is not the first time that this Court has been called upon to pass upon the validity of a provision which places a landowner in the situation of losing his dominical rights over the property without due process or compensation. We refer to the provisions of Republic Act 2616 before they were amended by Republic Act No. 3453. Note that, as originally provided, Republic Act No. 2616 prohibited the institution of an ejectment proceeding against any occupant of any lot in the Tatalon Estate or the continuance of one that has already been commenced after the expropriation proceedings shall have been initiated and during the pendency of the same. On the surface this provision would appear to be valid if the same is carried out in the light of the provisions of our Constitution relative to cases of eminent domain, for in that case the rights of the owner of the property to be expropriated are protected. But then an attempt came to circumvent that provision in an effort to safeguard or protect the interest of some occupants of the land, which reached this Court for adjudication, as when some occupants attempted to block their ejectment upon the plea that the government would soon start expropriation proceedings even if no sufficient funds were appropriated to provide compensation to the owner and even if it was not in a position to take possession of the estate, and so the owner contested the attempt invoking its rights under the Constitution. And this Court upheld the contention of the owner by declaring the attempt unconstitutional." 5

The conclusion that inevitably was called for is worded thus: "It is, therefore, imperative that we declare, as we now do, that Section 4 of Republic Act No. 3453 which prohibits the filing of an ejectment proceeding, or the continuance of one that has already been commenced, even in the absence of expropriation proceedings offends our Constitution and, hence, is unenforceable." 6 What we said then, we reaffirm now, as was indeed evident in our decision sought to be reconsidered but perhaps not given the importance which, in the opinion of petitionerappellee, it was entitled to. Nothing in our decision can be taken to detract in any wise from the binding force and effect of the Cuatico ruling which declared unconstitutional Section 4 of Republic Act No. 3453. 4. We likewise ruled that the mistake imputed to Congress in apparently recognizing the rights of ownership in entities or individuals not possessed of the same could not invalidate the challenged statute. In the same way, it cannot be made the basis for nonexistent rights of ownership to the property in question. It is in that sense that, as noted in our decision, no fear need be entertained that thereby the petitioner-appellee would be adversely affected. The government certainly would not pay to a party other than the owner the claim for just compensation which, under the Constitution, it is required to meet. Neither, then can any party who is not in that situation have any standing whatsoever. This much is beyond dispute. To repeat, the apprehension entertained by petitioner-appellee, perhaps indicative of it, excess of caution, is without legal foundation. WHEREFORE, the motion for the reconsideration of our decision of February 18, 1970, filed by petitioner-appellee, is denied. Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Castro, Teehankee and Barredo, JJ., concur.

G.R. Nos. L-34161 February 29, 1972 EUGENE A. TAN, SILVESTRE J. ACEJAS and ROGELIO V. FERNANDEZ, on their behalf and on behalf of the People of the Philippines, petitioners, vs. DIOSDADO P. MACAPAGAL, on his behalf and on behalf of the other Delegates to the 1971 Constitutional Convention, respondents. RESOLUTION

FERNANDO, J.:p A five-page petition filed on October 6, 1971 by Eugene A. Tan, Silvestre J. Acejas and Rogelio V. Fernandez, respectively, of Roxas City, Romblon and Davao City, for declaratory relief as taxpayers, but purportedly suing on behalf of themselves and the Filipino people, in assailing the validity of the Laurel-Leido Resolution, 1 dealing with the range of the authority of the 1971 Constitutional Convention, would have this Court declare that it is "without power, under Section 1, Article XV of the Constitution and Republic Act 6132, to consider, discuss and adopt proposals which seek to revise the present Constitution through the adoption of a form of government other than the form now outlined in the present Constitution [the Convention being] merely empowered to propose improvements to the present Constitution without altering the general plan laid down therein." 2 Such a plea of the utmost seriousness was sought to be compressed in a five-page pleading. It is understandable, therefore, why the petition could hardly be characterized as possessed of merit. Accordingly, on October 8, 1971, this Court issued a resolution dismissing it. Then came on the last day of that month a printed thirty-two page motion for reconsideration. It is evident that petitioners took some pains this time, although the main reliance seems to be on a secondary authority, American Jurisprudence. 3 The show of diligence is impressive but the persuasive quality is something else. A perusal thereof yields the conclusion that petitioners are oblivious of the authoritative precedents in this jurisdiction. The approach is not distinguished by its conformity with the law as it stands. In this sphere as elsewhere, new cults may be eroding considering, however, the compulsion of the ancient faiths. Considering, however, the compulsion of the fundamental principle of separation of powers, this Court cannot exercise the competence petitioners would erroneously assume it possesses, even assuming that they have the requisite standing, which is the first question to be faced. 1. What calls for prior determination is whether or not petitioners had the requisite standing to seek a declaration of the alleged nullity of a resolution of the Constitutional Convention. 4 In the categorical and succinct language of Justice Laurel: "The unchallenged rule is that the person who impugns the validity of a statute must have a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement." 5 There has been a relaxation of this rule. So

it was announced by the present Chief Justice in Pascual v. The Secretary of Public Works. 6 Thus: "Again, it is well settled that the validity of a statute may be contested only by one who will sustain a direct injury, in consequence of its enforcement. Yet, there are many decisions nullifying, at the instance of taxpayers, laws providing for the disbursement of public funds, upon the theory that the "expenditure of public funds, by an officer of the State for the purpose of administering an unconstitutional act constitutes a misapplication of such funds," which may be enjoined at the request of a taxpayer." 7 Moreover, where a constitutional question is raised, a Senator has usually been considered as possessed of the requisite personality to bring a suit. Thus in Mabanag vs. Lopez Vito, 8 it was a member of the Senate who was heard by this Court in a suit for prohibition to prevent the enforcement of the congressional resolution proposing the parity rights amendment. 9 Likewise, in the latest case in point, Tolentino v. Commission on Elections, it was a Senator who brought action challenging the validity of Organic Resolution No. 1 of the 1971 Constitutional Convention. He was quite sucessful too. Petitioners in the present case cannot be heard to assert that they do qualify under such a category. Moreover, as far as a taxpayer's suit is concerned, Court is not devoid of discretion as to whether or not it should be entertained. It is our view that a negative answer is indicated. Nor should petitioners feel discriminated against just because in Gonzales v. Commission on Elections, 10 a member of the Philippine Bar, now Delegate Ramon Gonzales, was allowed to prosecute his action for prohibition instituted by him as a taxpayer. Petitioners have no cause for legitimate resentment as such suit could be distinguished from the present. 2. Petitioner Gonzales in accordance with the controlling doctrine had the good sense to wait before filing his suit until after the enactment of the statute 11 for the submission to the electorate of certain proposed amendments to the Constitution. 12 It was only then that the matter was ripe for adjudication. Prior to that stage, the judiciary had to keep its hands off. The doctrine of separation of powers calls for the other departments being left alone to discharge their duties as they see fit. The judiciary as Justice Laurel emphatically asserted "will neither direct nor restrain executive [or legislative] action ... ." 13 The legislative and executive branches are not bound to seek its advice as to what to do or not to do. Judicial inquiry has to be postponed in the meanwhile. It is a prerequisite that something had by then been accomplished or performed by either branch before a court may come into the picture. At such a time, it may pass on the validity of what was done but only "when ... properly challenged in an appropriate legal proceeding." 14 Such a principle applies as well when the inquiry concerns the scope of the competence lodged in the Constitutional Convention. The judiciary must leave it free to fulfill its responsibility according to its lights. There is to be no interference. Its autonomy is to be respected. It cannot be otherwise if it is to perform its function well. Such should be the case not only because it is a coordinate agency but also because its powers are transcendent, amounting as it does to submitting for popular ratification proposals which may radically alter the organization and functions of all three departments, including the

courts. It is therefore much more imperative that the rule of non-interference be strictly adhered to until the appropriate time comes. More specifically, as long as any proposed amendment is still unacted on by it, there is no room for the interposition of judicial oversight. Only after it has made concrete what it intends to submit for ratification may the appropriate case be instituted. Until then, the courts are devoid of jurisdiction. That is the command of the Constitution as interpreted by this Court. Unless and until such a doctrine loses force by being overruled or a new precedent being announced, it is controlling. That is implicit in the rule of law. Petitioners' motion for reconsideration cannot therefor be sustained. WHEREFORE, the motion for reconsideration is denied. No costs. Concepcion, C.J., Reyes, J.B.L., Makalintal, Zaldivar Castro, Teehankee, Barredo, Villamor and Makasiar, JJ., concur.

POE v. ULLMAN, 367 U.S. 497 (1961)

367 U.S. 497 POE ET AL. v. ULLMAN, STATE'S ATTORNEY. APPEAL FROM THE SUPREME COURT OF ERRORS OF CONNECTICUT. No. 60. Argued March 1-2, 1961. Decided June 19, 1961. * [ Footnote * ] Together with No. 61, Buxton v. Ullman, State's Attorney, also on appeal from the same Court. These are appeals from a decision of the Supreme Court of Errors of Connecticut affirming dismissals of complaints in three cases in which the plaintiffs sued for declaratory judgments that certain Connecticut statutes which prohibit the use of contraceptive devices and the giving of medical advice on their use violate the Fourteenth Amendment by depriving the plaintiffs of life and property without due process of law. The complaints alleged that two plaintiffs who were married women needed medical advice on the use of such devices for the protection of their health but that a physician, who was the plaintiff in the third case, was deterred from giving such advice because the State's Attorney intended to prosecute offenses against the State's laws and he claimed that the giving of such advice and the use of such devices were forbidden by state statutes. However, it appeared that the statutes in question had been enacted in 1879 and that no one ever had been prosecuted thereunder except two doctors and a nurse, who were charged with operating a birth-control clinic, and that the information against them had been dismissed after the State Supreme Court had sustained the legislation in 1940 on an appeal from a demurrer to the information. Held: The appeals are dismissed, because the records in these cases do not present controversies justifying the adjudication of a constitutional issue. Pp. 498-509. 147 Conn. 48, 156 A. 2d 508, appeal dismissed. Fowler V. Harper argued the cause and filed a brief for appellants. Raymond J. Cannon, Assistant Attorney General of Connecticut, argued the cause for appellee. With him on the brief was Albert L. Coles, Attorney General. Harriet Pilpel argued the cause for the Planned Parenthood Federation of America, Inc., as amicus curiae, urging [367 U.S. 497, 498] reversal. With her on the brief were Morris L. Ernst and Nancy F. Wechsler. Briefs of amici curiae, urging reversal, were filed by Whitney North Seymour for Dr. Willard Allen et al., and by Osmond K. Fraenkel and Rowland Watts for the American Civil Liberties Union et al. MR. JUSTICE FRANKFURTER announced the judgment of the Court and an opinion in which THE CHIEF JUSTICE, MR. JUSTICE CLARK and MR. JUSTICE WHITTAKER join.

These appeals challenge the constitutionality, under the Fourteenth Amendment, of Connecticut statutes which, as authoritatively construed by the Connecticut Supreme Court of Errors, prohibit the use of contraceptive devices and the giving of medical advice in the use of such devices. In proceedings seeking declarations of law, not on review of convictions for violation of the statutes, that court has ruled that these statutes would be applicable in the case of married couples and even under claim that conception would constitute a serious threat to the health or life of the female spouse. No. 60 combines two actions brought in a Connecticut Superior Court for declaratory relief. The complaint in the first alleges that the plaintiffs, Paul and Pauline Poe, 1 are a husband and wife, thirty and twenty-six years old respectively, who live together and have no children. Mrs. Poe has had three consecutive pregnancies terminating in infants with multiple congenital abnormalities from which each died shortly after birth. Plaintiffs have consulted Dr. Buxton, an obstetrician and gynecologist of eminence, and it is Dr. Buxton's opinion that the cause of the infants' abnormalities is genetic, although the [367 U.S. 497, 499] underlying "mechanism" is unclear. In view of the great emotional stress already suffered by plaintiffs, the probable consequence of another pregnancy is psychological strain extremely disturbing to the physical and mental health of both husband and wife. Plaintiffs know that it is Dr. Buxton's opinion that the best and safest medical treatment which could be prescribed for their situation is advice in methods of preventing conception. Dr. Buxton knows of drugs, medicinal articles and instruments which can be safely used to effect contraception. Medically, the use of these devices is indicated as the best and safest preventive measure necessary for the protection of plaintiffs' health. Plaintiffs, however, have been unable to obtain this information for the sole reason that its delivery and use may or will be claimed by the defendant State's Attorney (appellee in this Court) to constitute offenses against Connecticut law. The State's Attorney intends to prosecute offenses against the State's laws, and claims that the giving of contraceptive advice and the use of contraceptive devices would be offenses forbidden by Conn. Gen. Stat. Rev., 1958, 53-32 and 54-196. 2 [367 U.S. 497, 500] Alleging irreparable injury and a substantial uncertainty of legal relations (a local procedural requisite for a declaration), plaintiffs ask a declaratory judgment that 53-32 and 54-196 are unconstitutional, in that they deprive the plaintiffs of life and liberty without due process of law. The second action in No. 60 is brought by Jane Doe, a twenty-five-year-old housewife. Mrs. Doe, it is alleged, lives with her husband, they have no children; Mrs. Doe recently underwent a pregnancy which induced in her a critical physical illness - two weeks' unconsciousness and a total of nine weeks' acute sickness which left her with partial paralysis, marked impairment of speech, and emotional instability. Another pregnancy would be exceedingly perilous to her life. She, too, has consulted Dr. Buxton, who believes that the best and safest treatment for her is contraceptive advice. The remaining allegations of Mrs. Doe's complaint, and the relief sought, are similar to those in the case of Mr. and Mrs. Poe. In No. 61, also a declaratory judgment action, Dr. Buxton is the plaintiff. Setting forth facts identical to those alleged by Jane Doe, he asks that the Connecticut statutes prohibiting his giving of contraceptive advice to Mrs. Doe be adjudged unconstitutional, as depriving him of liberty and property without due process.

In all three actions, demurrers were advanced, inter alia, on the ground that the statutes attacked had been previously construed and sustained by the Supreme Court of Errors of Connecticut, and thus there did not exist the uncertainty of legal relations requisite to maintain suits for declaratory judgment. While the Connecticut Supreme Court of Errors in sustaining the demurrers referred to this local procedural ground, relying on State v. Nelson, 126 Conn. 412, 11 A. 2d 856, and Tileston v. Ullman, 129 Conn. 84, 26 A. 2d 582, app. dism'd, 318 U.S. 44 , we cannot say that its decision rested on it. 147 Conn. 48, [367 U.S. 497, 501] 156 A. 2d 508. We noted probable jurisdiction. 362 U.S. 987 . Appellants' complaints in these declaratory judgment proceedings do not clearly, and certainly do not in terms, allege that appellee Ullman threatens to prosecute them for use of, or for giving advice concerning, contraceptive devices. The allegations are merely that, in the course of his public duty, he intends to prosecute any offenses against Connecticut law, and that he claims that use of and advice concerning contraceptives would constitute offenses. The lack of immediacy of the threat described by these allegations might alone raise serious questions of non-justiciability of appellants' claims. See United Public Workers v. Mitchell, 330 U.S. 75, 88 . But even were we to read the allegations to convey a clear threat of imminent prosecutions, we are not bound to accept as true all that is alleged on the face of the complaint and admitted, technically, by demurrer, any more than the Court is bound by stipulation of the parties. Swift & Co. v. Hocking Valley R. Co., 243 U.S. 281, 289 . Formal agreement between parties that collides with plausibility is too fragile a foundation for indulging in constitutional adjudication. The Connecticut law prohibiting the use of contraceptives has been on the State's books since 1879. Conn. Acts 1879, c. 78. During the more than three-quarters of a century since its enactment, a prosecution for its violation seems never to have been initiated, save in State v. Nelson, 126 Conn. 412, 11 A. 2d 856. The circumstances of that case, decided in 1940, only prove the abstract character of what is before us. There, a test case was brought to determine the constitutionality of the Act as applied against two doctors and a nurse who had allegedly disseminated contraceptive information. After the Supreme Court of Errors sustained the legislation on appeal from a demurrer to the information, the State [367 U.S. 497, 502] moved to dismiss the information. Neither counsel nor our own researches have discovered any other attempt to enforce the prohibition of distribution or use of contraceptive devices by criminal process. 3 The unreality of these law suits is illumined by another circumstance. We were advised by counsel for appellants that contraceptives are commonly and notoriously sold in Connecticut drug stores. 4 Yet no prosecutions are recorded; and certainly such ubiquitous, open, public sales would more quickly invite the attention of enforcement officials than the conduct in which the present appellants wish to engage - the giving of private medical advice by a doctor to his individual patients, and their private use of the devices prescribed. The undeviating policy of nullification by Connecticut of its anti-contraceptive laws throughout all the long years that they have been on the statute books bespeaks more than prosecutorial paralysis. What was said in another context is relevant here. "Deeply embedded traditional ways of carrying out state policy . . ." - or not carrying it out - "are often tougher and truer law than the dead words of the written text." Nashville, C. & St. L. R. Co. v. Browning, 310 U.S. 362, 369 . The restriction of our jurisdiction to cases and controversies within the meaning of Article III of the Constitution, see Muskrat v. United States, 219 U.S. 346 , is not the sole limitation on the

exercise of our appellate powers, especially in cases raising constitutional questions. [367 U.S. 497, 503] The policy reflected in numerous cases and over a long period was thus summarized in the oft-quoted statement of Mr. Justice Brandeis: "The Court [has] developed, for its own governance in the cases confessedly within its jurisdiction, a series of rules under which it has avoided passing upon a large part of all the constitutional questions pressed upon it for decision." Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 341 , 346 (concurring opinion). In part the rules summarized in the Ashwander opinion have derived from the historically defined, limited nature and function of courts and from the recognition that, within the framework of our adversary system, the adjudicatory process is most securely founded when it is exercised under the impact of a lively conflict between antagonistic demands, actively pressed, which make resolution of the controverted issue a practical necessity. See Little v. Bowers, 134 U.S. 547, 558 ; California v. San Pablo & Tulare R. Co., 149 U.S. 308, 314 ; United States v. Fruehauf, 365 U.S. 146, 157 . In part they derive from the fundamental federal and tripartite character of our National Government and from the role - restricted by its very responsibility - of the federal courts, and particularly this Court, within that structure. See the Note to Hayburn's Case, 2 Dall. 409; Massachusetts v. Mellon, 262 U.S. 447 ; 488-489; Watson v. Buck, 313 U.S. 387, 400 -403; Alabama State Federation of Labor v. McAdory, 325 U.S. 450, 471 . These considerations press with special urgency in cases challenging legislative action or state judicial action as repugnant to the Constitution. "The best teaching of this Court's experience admonishes us not to entertain constitutional questions in advance of the strictest necessity." Parker v. County of Los Angeles, 338 U.S. 327, 333 . See also Liverpool, N. Y. & P. S. S. Co. v. Commissioners, 113 U.S. 33, 39 . The various doctrines of "standing," 5 [367 U.S. 497, 504] "ripeness," 6 and "mootness," 7 which this Court has evolved with particular, though not exclusive, reference to such cases are but several manifestations - each having its own "varied application" 8 - of the primary conception that federal judicial power is to be exercised to strike down legislation, whether state or federal, only at the instance of one who is himself immediately harmed, or immediately threatened with harm, by the challenged action. Stearns v. Wood, 236 U.S. 75 ; Texas v. Interstate Commerce Comm'n, 258 U.S. 158 ; United Public Workers v. Mitchell, 330 U.S. 75, 89 -90. "This court can have no right to pronounce an abstract opinion upon the constitutionality of a State law. Such law must be brought into actual, or threatened operation upon rights properly falling under judicial cognizance, or a remedy is not to be had here." Georgia, v. Stanton, 6 Wall. 50, 75, approvingly quoting Mr. Justice Thompson, dissenting, in Cherokee Nation v. Georgia, 5 Pet. 1, 75; also quoted in New Jersey v. Sargent, 269 U.S. 328, 331 . "The party who invokes the power [to annul legislation on grounds [367 U.S. 497, 505] of its unconstitutionality] must be able to show not only that the statute is invalid but that he has sustained or is immediately in danger of sustaining some direct injury as the result of its enforcement . . . ." Massachusetts v. Mellon, 262 U.S. 447, 488 . 9 This principle was given early application and has been recurringly enforced in the Court's refusal to entertain cases which disclosed a want of a truly adversary contest, of a collision of actively asserted and differing claims. See, e. g., Cleveland v. Chamberlain, 1 Black 419; WoodPaper Co. v. Heft, 8 Wall. 333. Such cases may not be "collusive" in the derogatory sense of Lord v. Veazie, 8 How. 251 - in the sense of merely colorable disputes got up to secure an advantageous ruling from the Court. See South Spring Hill Gold Mining Co. v. Amador Medean Gold Mining Co., 145 U.S. 300, 301 . The Court has found unfit for adjudication any cause that

"is not in any real sense adversary," that "does not assume the `honest and actual antagonistic assertion of rights' to be adjudicated - a safeguard essential to the integrity of the judicial process, and one which we have held to be indispensable to adjudication of constitutional questions by this Court." United States v. Johnson, 319 U.S. 302, 305 . The requirement for adversity was classically expounded in Chicago & Grand Trunk R. Co. v. Wellman, 143 U.S. 339, 344 -345: ". . . The theory upon which, apparently, this suit was brought is that parties have an appeal from the [367 U.S. 497, 506] legislature to the courts; and that the latter are given an immediate and general supervision of the constitutionality of the acts of the former. Such is not true. Whenever, in pursuance of an honest and actual antagonistic assertion of rights by one individual against another, there is presented a question involving the validity of any act of any legislature, State or Federal, and the decision necessarily rests on the competency of the legislature to so enact, the court must, in the exercise of its solemn duties, determine whether the act be constitutional or not; but such an exercise of power is the ultimate and supreme function of courts. It is legitimate only in the last resort, and as a necessity in the determination of real, earnest and vital controversy between individuals. It never was the thought that, by means of a friendly suit, a party beaten in the legislature could transfer to the courts an inquiry as to the constitutionality of the legislative act." What was said in the Wellman case found ready application in proceedings brought under modern declaratory judgment procedures. For just as the declaratory judgment device does not "purport to alter the character of the controversies which are the subject of the judicial power under the Constitution," United States v. West Virginia, 295 U.S. 463, 475 , it does not permit litigants to invoke the power of this Court to obtain constitutional rulings in advance of necessity. Electric Bond & Share Co. v. Securities and Exchange Comm'n, 303 U.S. 419, 443 . The Court has been on the alert against use of the declaratory judgment device for avoiding the rigorous insistence on exigent adversity as a condition for evoking Court adjudication. This is as true of state court suits for declaratory judgments as of federal. By exercising their jurisdiction, state courts cannot determine the jurisdiction to be exercised by this Court. Tyler [367 U.S. 497, 507] v. Judges of the Court of Registration, 179 U.S. 405 ; Doremus v. Board of Education, 342 U.S. 429 . Although we have held that a state declaratory-judgment suit may constitute a case or controversy within our appellate jurisdiction, it is to be reviewed here only "so long as the case retains the essentials of an adversary proceeding, involving a real, not a hypothetical, controversy, which is finally determined by the judgment below." Nashville, C. & St. L. R. Co. v. Wallace, 288 U.S. 249, 264 . It was with respect to a state-originating declaratory judgment proceeding that we said, in Alabama State Federation of Labor v. McAdory, 325 U.S. 450, 471 , that "The extent to which the declaratory judgment procedure may be used in the federal courts to control state action lies in the sound discretion of the Court. . . ." Indeed, we have recognized, in such cases, that ". . . the discretionary element characteristic of declaratory jurisdiction, and imported perhaps from equity jurisdiction and practice without the remedial phase, offers a convenient instrument for making . . . effective . . ." the policy against premature constitutional decision. Rescue Army v. Municipal Court, 331 U.S. 549, 573 , n. 41. Insofar as appellants seek to justify the exercise of our declaratory power by the threat of prosecution, facts which they can no more negative by complaint and demurrer than they could by stipulation preclude our determining their appeals on the merits. Cf. Bartemeyer v. Iowa, 18

Wall. 129, 134-135. It is clear that the mere existence of a state penal statute would constitute insufficient grounds to support a federal court's adjudication of its constitutionality in proceedings brought against the State's prosecuting officials if real threat of enforcement is wanting. See Ex parte La Prade, 289 U.S. 444, 458 . If the prosecutor expressly agrees not to prosecute, a suit against him for declaratory and injunctive relief is not such an adversary case as will be reviewed here. C. I. O. [367 U.S. 497, 508] v. McAdory, 325 U.S. 472, 475 . Eighty years of Connecticut history demonstrate a similar, albeit tacit agreement. The fact that Connecticut has not chosen to press the enforcement of this statute deprives these controversies of the immediacy which is an indispensable condition of constitutional adjudication. This Court cannot be umpire to debates concerning harmless, empty shadows. To find it necessary to pass on these statutes now, in order to protect appellants from the hazards of prosecution. would be to close our eyes to reality. Nor does the allegation by the Poes and Doe that they are unable to obtain information concerning contraceptive devices from Dr. Buxton, "for the sole reason that the delivery and use of such information and advice may or will be claimed by the defendant State's Attorney to constitute offenses," disclose a necessity for present constitutional decision. It is true that this Court has several times passed upon criminal statutes challenged by persons who claimed that the effects of the statutes were to deter others from maintaining profitable or advantageous relations with the complainants. See, e. g., Truax v. Raich, 239 U.S. 33 ; Pierce v. Society of Sisters, 268 U.S. 510 . But in these cases the deterrent effect complained of was one which was grounded in a realistic fear of prosecution. We cannot agree that if Dr. Buxton's compliance with these statutes is uncoerced by the risk of their enforcement, his patients are entitled to a declaratory judgment concerning the statutes' validity. And, with due regard to Dr. Buxton's standing as a physician and to his personal sensitiveness, we cannot accept, as the basis of constitutional adjudication, other than as chimerical the fear of enforcement of provisions that have during so many years gone uniformly and without exception unenforced. Justiciability is of course not a legal concept with a fixed content or susceptible of scientific verification. Its utilization is the resultant of many subtle pressures, [367 U.S. 497, 509] including the appropriateness of the issues for decision by this Court and the actual hardship to the litigants of denying them the relief sought. Both these factors justify withholding adjudication of the constitutional issue raised under the circumstances and in the manner in which they are now before the Court. Dismissed. MR. JUSTICE BLACK dissents because he believes that the constitutional questions should be reached and decided. MR. JUSTICE BRENNAN, concurring in the judgment. I agree that this appeal must be dismissed for failure to present a real and substantial controversy which unequivocally calls for adjudication of the rights claimed in advance of any attempt by the State to curtail them by criminal prosecution. I am not convinced, on this skimpy record, that these appellants as individuals are truly caught in an inescapable dilemma. The true controversy in this case is over the opening of birth-control clinics on a large scale; it is that which the State

has prevented in the past, not the use of contraceptives by isolated and individual married couples. It will be time enough to decide the constitutional questions urged upon us when, if ever, that real controversy flares up again. Until it does, or until the State makes a definite and concrete threat to enforce these laws against individual married couples - a threat which it has never made in the past except under the provocation of litigation - this Court may not be compelled to exercise its most delicate power of constitutional adjudication.

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