[G.R. No. 108461.

October 21, 1996]

PHILIPPINE INTERNATIONAL TRADING CORPORATION, petitioners, vs. HON PRESIDING JUDGE ZOSIMO Z. ANGELES,
BRANCH 58, RTC, MAKATI; REMINGTON INDUSTRIAL SALES CORPORATION; AND FIRESTONE CERAMIC,
INC., respondents.

DECISION

TORRES, JR., J.:

The PHILIPPINE INTERNATIONAL TRADING CORPORATION (PITC, for brevity) filed this Petition for Review on Certiorari,
seeking the reversal of the Decision dated January 4, 1993 of public respondent Hon. Zosimo Z. Angeles. Presiding Judge
of the Regional Trial Court of Makati, Branch 58, in civil Case No.92-158 entitled Remington Industrial Sales Corporation,
et. al. vs. Philippine Industrial Trading Corporation.

The said decision upheld the Petition for Prohibition and Mandamus of REMINGTON INDUSTRIAL SALES CORPORATION
(Remington, for brevity) and FIRESTONE CERAMICS, INC. (Firestone, for brevity), and, in the process, declared as null and
void and unconstitutional, PITCs Administrative Order No. SOCPEC 89-08-01 and its appurtenant regulations. The
dispositive portion of the decision reads:

WHEREFORE, premises considered, judgment is hereby rendered in favor of Petitioner and Intervenor and against the
Respondent, as follows:

1) Enjoining the further implementation by the respondent of the following issuances relative to the applications for
importation of products from the Peoples Republic of China, to wit:

a) Administrative Order No. SOCPEC 89-08-01 dated August 30, 1989 (Annex A, Amended petition);

b) Prescribed Export Undertaking Form (Annex B, Id.);

c) Prescribed Importer-Exporter Agreement Form for non-exporter-importer (Annex C, Id.);

d) Memorandum dated April 16, 1990 relative to amendments of Administrative Order NO. SOCPEC 89-08-01 (Annex
D, Id.);

e) Memorandum dated May 6, 1991 relative to Revised Schedule of Fees for the processing of import applications
(Annexes E, E-1., Ind.);

f) Rules and Regulations relative to liquidation of unfulfilled Undertakings and expired export credits (Annex Z,
Supplemental Petition),

the foregoing being all null and void and unconstitutional; and,

2) Commanding respondent to approve forthwith all the pending applications of, and all those that may hereafter be
filed by, the petitioner and the Intervenor, free from and without the requirements prescribed in a the above-
mentioned issuance.

IT IS SO ORDERED."
The controversy springs from the issuance by the PITC of Administrative Order No. SOCPEC 89-08-01,[1] under which,
applications to the PITC for importation from the Peoples Republic of China (PROC. for brevity) must be accompanied by
a viable and confirmed Export Program of Philippine Products to PROC carried out by the importer himself or through a
tie-up with a legitimate importer in an amount equivalent to the value of the importation from PROC being applied for,
or, simply, at one is to one ratio.

Pertinent provisions of the questioned administrative order read:

3. COUNTERPART EXPORTS TO PROC

In addition to existing requirements for the processing of import application for goods and commodities originating from
PROC, it is declared that:

3.1 All applications covered by these rules must be accompanied by a viable and confirmed EXPORT PROGRAM of
Philippine products to PROC in an amount equivalent to the value of the importation from PROC being applied for. Such
export program must be carried out and completed within six (6) months from date of approval of the Import
Application by PITC. PITC shall reject/deny any application for importation from PROC without the accompanying export
program mentioned above.

3.2 The EXPORT PROGRAM may be carried out by any of the following:

a. By the IMPORTER himself if he has the capabilities and facilities to carry out the export of Philippine products to PROC
in his own name; or

b. Through a tie-up between the IMPORTER and a legitimate exporter (of Philippine products) who is willing to carry out
the export commitments of the IMPORTER under these rules. The tie-up shall not make the IMPORTER the exporter of
the goods but shall merely ensure that the importation sought to be approved is matched one-to-one (1:1) in value with
[2]
a corresponding export of Philippine Products to PROC.

3.3 EXPORT PROGRAM DOCUMENTS which are to be submitted by the importer together with his Import Application are
as follows:

a) Firm Contract, Sales Invoice or Letter of Credit.

b) Export Performance Guarantee (See Article 4 hereof).

c) IMPORTER-EXPORTER AGREEMENT for non-exporter IMPORTER (PITC Form No. M-1006). This form should be used if
IMPORTER has a tie-up with an exporter for the export of Philippine Products to PROC.

4. EXPORT GUARANTEE

To ensure that the export commitments of the IMPORTER are carried out in accordance with these rules, all IMPORTERS
concerned are required to submit an EXPORT PERFORMANCE GUARANTEE (the Guarantee) at the time of filing of the
Import Application. The amount of the guarantee shall be as follows:

For essential commodities: 15% of the value of the imports applied for.

For other commodities: 50% of the value of the imports applied for.
4.1 The guarantee may be in the form of (i) a non-interest bearing cash deposit; (ii) Bank hold-out in favor of PITC (PITC
Form No. M-1007) or (iii) a Domestic Letter of Credit (with all bank opening charges for account of Importer) opened in
favor of PITC as beneficiary.

4.2 The guarantee shall be made in favor of PITC and will be automatically forfeited in favor of PITC, fully or partially, if
the required export program is not completed by the importer within six (6) months from date of approval of the Import
Application.

4.3 Within the six (6) months period above stated, the IMPORTER is entitled to a (i) refund of the cash deposited without
interest; (ii) cancellation of the Bank holdout or (iii) Cancellation of the Domestic Letter of Credit upon showing that he
has completed the export commitment pertaining to his importation and provided further that the following documents
are submitted to PITC:

a) Final Sales Invoice

b) Bill of lading or Airway bill

c) Bank Certificate of Inward remittance

d) PITC EXPORT APPLICATION FOR NO. M-1005

5. MISCELLANEOUS

5.1 All other requirements for importations of goods and commodities from PROC must be complied with in addition to
the above.

5.2 PITC shall have the right to disapprove any and all import application not in accordance with the rules and
regulations herein prescribed.

5.3 Should the IMPORTER or any of his duly authorized representatives make any false statements or fraudulent
misrepresentations in the Import/Export Application, or falsify, forge or simulate any document required under these
rules and regulations, PITC is authorized to reject all pending and future import/export applications of said IMPORTER
and/or disqualify said IMPORTER and/or disqualify said IMPORTER from doing any business with SOCPEC through PITC.

Desiring to make importations from PROC, private respondents Remington and Firestone, both domestic corporations,
organized and existing under Philippines laws, individually applied for authority to import from PROC with the
petitioner, They were granted such authority after satisfying the requirements for importers, and after they executed
respective undertakings to balance their importations from PROC with corresponding export of Philippine products to
PROC.

Private respondent Remington was allowed to import tools, machineries and other similar goods. Firestones, on the
other hand, imported Calcine Vauxite, which it used for the manufacture of fire bricks, one of its products.

Subsequently, for failing to comply with their undertakings to submit export credits equivalent to the value of their
importations, further import applications were withheld by petitioner PITC from private respondents, such that the
latter both barred from importing goods from PROC.[3]

Consequently, Remington filed a Petition for Prohibition and Mandamus, with prayer for issuance of Temporary
Restraining Order and/or Writ of Preliminary Injunction on January 20, 1992, against PITC in the RTC Makati Branch
58.[4] The court issued a Temporary Restraining Order on January 21, 1992, ordering PITC to cease from exercising any
power to process applications of goods from PROC.[5] Hearings on the application for writ of preliminary injunction
ensued.
[6]
Private respondents Firestones was allowed to intervene in the petition on July 2, 1992, thus joining Remington in the
latters charges against PITC. It specifically asserts that the questioned Administrative Order is an undue restrictions of
trade, and hence, unconstitutional.

Upon trial, it was agreed that the evidence adduced upon the hearing on the Preliminary Injunction was sufficient to
completely adjudicate the case, thus, the parties deemed it proper that the entire case be submitted for decision upon
the evidence so far presented.

The court rendered its Decision[7] on January 4, 1992. The court ruled that PITCs authority to process and approve
applications for imports from SOCPEC and to issue rules and regulations pursuant to LOI 444 and P.D. No. 1071, has
already been repealed by EO No. 133, issued on February 27, 1987 by President Aquino.

The court observed:

Given such obliteration and/or withdrawal of what used to be PITCs regulatory authority under the Special provisions
embodied in LOI 444 from the enumeration of powers that it could exercise effective February 27, 1987 in virtue of
Section 16 (d), EO No. 133, it may now be successfully argued that the PITC can no longer exercise such specific
regulatory power in question conformably with the legal precept expresio unius est exclusio alterius.

Moreover, the court continued, none of the Trade protocols of 1989, 1990 or 1991, has empowered the PITC, expressly
or impliedly to formulate or promulgate the assailed Administrative Order. This fact, makes the continued exercise by
PITC of the regulatory powers in question unworthy of judicial approval. Otherwise, it would be sanctioning an undue
exercise of legislative power vested solely in the Congress of the Philippines by Section 1, Article VII of the 1987
Philippine Constitution.

The lower court stated that the subject Administrative Order and other similar issuances by PITC suffer from serious
constitutional infirmity, having been promulgated in pursuance of an international agreement (the Memorandum of
Agreement between the Philippine and PROC), which has not been concurred in by at least 2/3 of all the members of the
Philippine Senate as required by Article VII, Section 21, of the 1987 Constitution, and therefore, null and void.

Section 21. No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of
all the Members of the Senate.

Furthermore, the subject Administrative Order was issued in restraint of trade, in violation of Sections 1 and 19, Article
XII of the 1987 Constitution, which reads:

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 equality of life for all, especially the underprivileged.

Section 19. The State shall regulate or prohibit monopolies when the public interest so requires. No combination is
restraint of trade or unfair competition shall be allowed.

Lastly, the court declared the Administrative Order to be null and void, since the same was not published, contrary to
Article 2 of the New Civil Code which provides, that:
Article 2. Laws shall take effect fifteen (15) days following the completion of their publication in the Official Gazette,
unless the law otherwise provides. xxx
[8]
Petitioner now comes to us on a Petition for Review on Certiorari, questioning the courts decision particularly on the
propriety of the lower courts declarations on the validity of Administrative Order No. 89-08-01. The Court directed the
respondents to file their respective Comments.

Subsequent events transpired, however, which affect to some extent, the submissions of the parties to the present
petition.

Following President Fidel V. Ramos trip to Beijing, Peoples Republic of China (PROC), from April 25 to 30, 1993, a new
trade agreement was entered into between the Philippines and PROC, encouraging liberalization of trade between the
two countries. In line therewith, on April 20, 1993, the President, through Chief Presidential Legal Counsel Antonio T.
Carpio, directed the Department of Trade and Industry and the PITC to cease implementing Administrative Order No.
SOCPEC 89-08-01, as amended by PITC Board Resolution Nos. 92-01-05 and 92-03-08.[9]

In the implementation of such order, PITC President Jose Luis U. Yulo, Jr. issued a corporate Memorandum[10] instructing
that all import applications for the PROC filed with the PITC as of April 20, 1993 shall no longer be covered by the trade
balancing program outlined in the Administrative Order.

Forthwith, the PITC allowed the private respondents to import anew from the PROC, without being required to comply
anymore with the lifted requirement of balancing its imports with exports of Philippine products to PROC.[11] In
[12]
its Constancia filed with the Court on November 22, 1993, Remington expressed its desire to have the present action
declared moot and academic considering the new supervening developments. For its part, respondent Firestone made a
Manifestation[13] in lieu of its Memorandum, informing the court of the aforesaid developments of the new trade
program of the Philippines with China, and prayed for the courts early resolution of the action.

To support its submission that the present action is now moot and academic, respondent Remington cites Executive
Order No. 244,[14] issued by President Ramos on May 12, 1995. The Executive Order states:

WHEREAS, continued coverage of the Peoples Republic of China by letter of Instructions No. 444 is no longer consistent
with the countrys national interest, as coursing Republic of the Philippines-Peoples Republic of China Trade through the
Philippine International Trading Corporation as provided for under Letter of Instructions No. 444 is becoming an
unnecessary barrier to trade;

NOW, THEREFORE, I FIDEL V. RAMOS, President of the Republic of the Philippines, by virtue of the powers vested in me
by law, do hereby order:

The Committee on Scientific and Technical Cooperation with Socialist Countries to delete the Peoples Republic of China
from the list of countries covered by Letter of Instructions No. 444.

Done in the City of Manila, this 12th day of May in the year of Our Lord, Nineteen Hundred and Ninety-Five.

PITC filed its own Manifestation[15] on December 15, 1993, wherein it adopted the arguments raised in its Petition as its
Memorandum. PITC disagrees with Remington on the latters submission that the case has become moot and academic
as a result of the abrogation of Administrative Order SOCPEC No. 89-08-01, since respondent Remington had incurred
obligations to the petitioner consisting of charges for the 0.5% Counter Export Development Service provided by PITC to
Remington, which obligations remain outstanding.[16] The propriety of such charges must still be resolved, petitioner
argues, thereby maintaining the issue of the validity of SOCPEC Order No. 89-08-01, before it was abrogated by
Executive fiat.

There is no question that from April 20, 1993, when trade balancing measures with PROC were lifted by the President,
Administrative Order SOCPEC No. 89-08-01 no longer has force and effect, and respondents are thus entitled anew to
apply for authority to import from the PROC, without the trade balancing requirements previously imposed on proposed
importers. Indeed, it appears that since the lifting of the trade balancing measures, Remington had been allowed to
import anew from PROC.

There remains, however, the matter of outstanding obligations of the respondents for the charges relating to the 0.5%
Counter Export Development Service in favor of PITC, for the period when the questioned Administrative Order
remained in effect. Is the obligation still subsisting, or are the respondents freed from it?

To resolve this issue, we are tasked to consider the constitutionality of Administrative Order No. SOCPEC 89-08-01,
based on the arguments set up by the parties in their Petition and Comment. In so doing, we must inquire into the
nature of the functions of the PITC, in the light of present realities.
[17]
The PITC is a government owned or controlled corporation created under P.D. No. 252 dated August 6, 1973. P.D. No.
[18]
1071, issued on May 9, 1977 which revised the provisions of P.D. 252. The purposes and powers of said governmental
entity were enumerated under Section 5 and 6 thereof.[19]
[20]
On August 9, 1976, the late President Marcos issued Letter of Instruction (LOI) No. 444, directing, inter alia, that trade
(export or import of all commodities), whether direct or indirect, between the Philippines and any of the Socialist and
other Centrally Planned Economy Countries (SOCPEC), including the Peoples Republic of China (PROC) shall be
undertaken or coursed through the PITC. Under the LOI, PITC was mandated to: 1) participate in all official trade and
economic discussions between the Philippines and SOCPEC; 2) adopt such measures and issue such rules and regulations
as may be necessary for the effective discharge of its functions under its instructions; and 3) Undertake the processing
and approval of all applications for export to or import from the SOCPEC.

Pertinent provisions of the Letter of Instruction are herein reproduced:

LETTER OF INSTRUCTION 444

xxx

II. CHANNELS OF TRADE

1. The trade, direct or indirect, between the Philippines and any of the Socialist and other centrally-planned economy
countries shall upon issuance hereof, be undertaken by or coursed through the Philippine International Trading
Corporation. This shall apply to the export and import of all commodities of products including those specified for export
or import by expressly authorized government agencies.

xxx

4. The Philippine International Trading Corporation shall participate in all official trade and economic discussions
between the Philippines and other centrally-planned economy countries.

xxx

V. SPECIAL PROVISIONS
The Philippine International Trading Corporation shall adopt such measures and issue such rules and regulations as may
be necessary for the effective discharge of its functions under these instructions. In this connection, the processing and
approval of applications for export to or import from the Socialist and other centrally-planned economy countries shall,
henceforth, be performed by the said Corporation. (Emphasis ours)

After the EDSA Revolution, or more specifically on February 27, 1987, then President Corazon C. Aquino promulgated
Executive Order (EO) No. 133[21] reorganizing the Department of Trade and Industry (DTI) empowering the said
department to be the "primary coordinative, promotive, facilitative and regulatory arm of the government for the
countrys trade, industry and investment activities (Sec. 2, EO 133). The PITC was made one of DTIs line agencies.[22]

The Executive Order reads in part:

EXECUTIVE ORDER NO. 133

XXX

Section 16. Line Corporate Agencies and Government Entities.

The following line corporate agencies and government entities defined in Section 9 (c) of this Executive Order that will
perform their specific regulatory functions, particularly developmental responsibilities and specialized business activities
in a manner consonant with the Department mandate, objectives, policies, plans and programs:

xxx

d) Philippine International Trading Corporation. This corporation, which shall be supervised by the Undersecretary for
International Trade, shall only engage in both export and trading on new or non-traditional products and markets not
normally pursued by the private business sector; provide a wide range of export oriented auxiliary services to the private
sector; arrange for a establish comprehensive system and physical facilities for handling the collection, processing, and
distribution of cargoes and other commodities; monitor or coordinate risk insurance services for the existing institutions;
promote and organize, whenever warranted, production enterprises and industrial establishments and collaborate or
associate in joint venture with any person, association, company or entity, whether domestic or foreign, in the fields of
production, marketing, procurement, and other relate businesses; and provide technical advisory, investigatory,
consultancy and management services with respect to any and all of the functions, activities, and operations of the
corporation.

Sometime in April, 1988, following the State visit of President Aquino to the PROC, the Philippines and PROC entered
into a memorandum of Understanding[23] (MOU) wherein the two countries agreed to make joint efforts within the next
five years to expand bilateral trade to US $600 US $800 Million by 1992, and to strive for a steady progress towards
achieving a balance between the value of their imports and exports during the period, agreeing for the purpose that
upon the signing of the Memorandum, both sides shall undertake to establish the necessary steps and procedures to be
adopted within the framework of the annual midyear review meeting under the Trade Protocol, in order to monitor and
ensure the implementation of the MOU.

Conformably with the MOU, the Philippines and PROC entered into a Trade Protocol for the years 1989, 1990 and
1991,[24] under which was specified the commodities to be traded between them. The protocols affirmed their
agreement to jointly endeavor to achieve more or less a balance between the values of their imports and exports in
their bilateral trade.
It is allegedly in line with its powers under LOI 444 and in keeping with the MOU and Trade Protocols with PROC that
PITC issued its now assailed Administrative Order No. SOCPEC 89-08-01[25] on August 30, 1989 (amended in March,
1992).

Undoubtedly, President Aquino, in issuing EO 133, is empowered to modify and amend the provisions of LOI 444, which
was issued by then President Marcos, both issuances being executive directives. As observed by us in Philippine
Association of Service Exporters , Inc. vs. Torres,[26]

there is no need for legislative delegation of power to the President to revoke the Letter of Instruction by way of an
Executive Order. This is notwithstanding the fact that the subject LOI 1190 was issued by President Marcos, when he
was extraordinarily empowered to exercise legislative powers, whereas EO 450 was issued by Pres. Aquino when her
transitional legislative powers have already ceased, since it was found that LOI 1190 was a mere administrative directive,
hence, may be repealed, altered, or modified by EO 450.

We do not agree, however, with the trial courts ruling that PITCs authority to issue rules and regulations pursuant to the
Special Provisions of LOI 444 and P.D. No. 1071, have already been repealed by EO 133.

While PITCs power to engage in commercial import and export activities is expressly recognized and allowed under
Section 16 (d) of EO 133, the same is now limited only to new or non-traditional products and markets not normally
pursued by the private business sector. There is no indication in the law of the removal of the powers of the PITC to
exercise its regulatory functions in the area of importations from SOCPEC countries. Though it does not mention the
grant of regulatory power, EO 133, as worded, is silent as to the abolition or limitation of such powers, previously
granted under P.D. 1071, from the PITC.

Likewise, the general repealing clause in EO 133 stating that all laws, ordinances, rules , and regulations, or other parts
thereof, which are inconsistent with the Executive Order are hereby repealed or modified accordingly, cannot operate to
abolish the grant of regulatory powers to the PITC. There can be no repeal of the said powers, absent any cogency of
irreconcilable inconsistency or repugnancy between the issuances, relating to the regulatory power of the PITC.

The President, in promulgating EO 133, had not intended to overhaul the functions of the PITC. The DTI was established,
and was given powers and duties including those previously held by the PITC as an independent government entity,
under P.D. 1071 and LOI 444. The PITC was thereby attached to the DTI as an implementing arm of the said department.

EO 133 established the DTI as the primary coordinative, promotive, facilitative and regulatory arm of government for the
countrys trade, industry and investment activities, which shall act as a catalyst for intensified private sector activity in
order to accelerate and sustain economic growth.[27] In furtherance of this mandate, the DTI was empowered, among
others, to plan, implement, and coordinate activities of the government related to trade industry and investments; to
formulate and administer policies and guidelines for the investment priorities plan and the delivery of investment
incentives; to formulate country and product export strategies which will guide the export promotion and development
thrust of the government.[28] Corollarily, the Secretary of Trade and Industry is given the power to promulgate rules and
regulations necessary to carry out the departments objectives, policies, plans, programs and projects.

The PITC, on the other hand, was attached as an integral part to the said department as one of its line agencies,[29] and
[30]
was given the focal task of implementing the departments programs. The absence of the regulatory power formerly
enshrined in the Special Provisions of LOI 444, from Section 16 of EO 133, and the limitation of its previously wide range
of functions, is noted. This does not mean, however, that PITC has lost the authority to issue the questioned
Administrative Order. It is our view that PITC still holds such authority, and may legally exercise it, as an implementing
arm, and under the supervision of, the Department of Trade and Industry.
Furthermore, the lower courts ruling to the effect that the PITCs authority to process and approve applications for
imports from SOCPEC and to issue rules and regulations pursuant to LOI 444 and P.D. 1071 has been repealed by EO 133,
is misplaced, and did not consider the import behind the issuance of the later presidential edict.

The President could not have intended to deprive herself of the power to regulate the flow of trade between
the Philippines and PROC under the two countries Memorandum of Understanding, a power which necessarily flows
from her office as Chief Executive. In issuing Executive Order 133, the President intended merely to reorganize the
Department of Trade and Industry to cope with the need of streamlined bureaucracy.[31]

Thus, there is no real inconsistency between LOI 444 and EO 133. There is, admittedly, a rearranging of the
administrative functions among the administrative bodies affected by the edict, but not an abolition of executive
power. Consistency in statutes as in executive issuances, is of prime importance, and, in the absence of a showing to the
contrary, all laws are presumed to be consistent with each other. Where it is possible to do so, it is the duty of courts, in
the construction of statutes, to harmonize and reconcile them, and to adopt a constructions of a statutory provision
[32]
which harmonizes and reconciles it with other statutory provisions. The fact that a later enactment may relate to the
same subject matter as that of an earlier statute is not of itself sufficient to cause an implied repeal of the latter, since
the law may be cumulative or a continuation of the old one.[33]

Similarly, the grant of quasi-legislative powers in administrative bodies is not unconstitutional. Thus, as a result of the
growing complexity of the modern society, it has become necessary to create more and more administrative bodies to
help in the regulation of its ramified activities. Specialized in the particular field assigned to them, they can deal with the
problems thereof with more expertise and dispatch than can be expected from the legislature or the courts of
justice. This is the reason for the increasing vesture of quasi-legislative and quasi-judicial powers in what is now not
unreasonably called the fourth department of the government.[34] Evidently, in the exercise of such powers, the agency
concerned must commonly interpret and apply contracts and determine the rights of private parties under such
contracts. One thrust of the multiplication of administrative agencies is that the interpretation of contracts and the
determination of private rights thereunder is no longer uniquely judicial function, exercisable only by our regular
courts. (Antipolo Realty Corporation vs. National Housing Authority, G.R. No. L- 50444, August 31, 1987, 153 SCRA 399).

With global trade and business becoming more intricate nay even with new discoveries in technology and electronics
notwithstanding, the time has come to grapple with legislations and even judicial decisions aimed at resolving issues
affecting not only individual rights but also activities of which foreign governments or entities may have interests. Thus,
administrative policies and regulations must be devised to suit these changing business needs in a faster rate than to
resort to traditional acts of the legislature.

This tendency finds support in a well-stated work on the subject, viz.:

Since legislatures had neither the time nor the knowledge to create detailed rules, however, it was soon clear that new
governmental arrangements would be needed to handle the job of rule-making. The courts, moreover, many of them
already congested, would have been swamped if they had to adjudicate all the controversies that the new legislation
was bound to create; and the judges, already obliged to handle a great diversity of cases, would have been hard pressed
to acquire the knowledge they needed to deal intelligently with all the new types of controversy.

So the need to create a large number of specialized administrative agencies and to give them broader powers than
administrators had traditionally exercised. These included the power to issue regulations having the force of law, and
the power to hear and decide cases powers that had previously been reserved to the legislatures and the
courts. (Houghteling/Pierce, Lawmaking by Administrative Agencies, p. 166.)
The respondents likewise argue that PITC is not empowered to issue the Administrative Order because no grant of such
power was made under the Trade Protocols of 1989, 1990 or 1991. We do not agree. The Trade Protocols aforesaid, are
only the enumeration of the products and goods which the signatory countries have agreed to trade. They do not
bestow any regulatory power, for executive power is vested in the Executive Department,[35] and it is for the latter to
delegate the exercise of such power among its designated agencies.

In sum, the PITC was legally empowered to issue Administrative Orders, as a valid exercise of a power ancillary to
legislation.

This does not imply however, that the subject Administrative Order is a valid exercise of such quasi-legislative
power. The original Administrative Order issued on August 30, 1989, under which the respondents filed their
applications for importations, was not published in the Official Gazette or in a newspaper of general circulation. The
questioned Administrative Order, legally, until it is published, is invalid within the context of Article 2 of Civil Code, which
reads:

Article 2. Laws shall take effect after fifteen days following the completion of their publication in the Official Gazette (or
in a newspaper of general circulation in the Philippines), unless it is otherwise provided. xxx

The fact that the amendments to Administrative Order No. SOCPEC 89-08-01 were filed with, and published by the
UP Law Center in the National Administrative Register, does not cure the defect related to the effectivity of the
Administrative Order.
[36]
This court, in Tanada vs. Tuvera stated, thus:

We hold therefore that all statutes, including those of local application and private laws, shall be published as a
condition for their effectivity, which shall begin fifteen days after publication unless a different effectivity is fixed by the
legislature.

Covered by this rule are presidential decrees and executive orders promulgated by the President in the exercise of
legislative powers or, at present, directly conferred by the Constitution. Administrative rules and Regulations must also
be published if their purpose is to enforce or implement existing law pursuant also to a valid delegation,

Interpretative regulations and those merely internal in nature, that is, regulating only the personnel of the
administrative agency and not the public, need not be published. Neither is publication required of the so-called letters
of instructions issued by administrative superiors concerning the rules or guidelines to be followed by their subordinates
in the performance of their duties.

xxx

We agree that the publication must be in full or it is no publication at all since its purpose is to inform the public of the
contents of the laws.

The Administrative Order under consideration is one of those issuances which should be published for its effectivity,
since its purpose is to enforce and implement an existing law pursuant to a valid delegation, i.e., P.D. 1071, in relation to
LOI 444 and EO 133.

Thus, even before the trade balancing measures issued by the petitioner were lifted by President Fidel V. Ramos, the
same were never legally effective, and private respondents, therefore, cannot be made subject to them, because
Administrative Order 89-08-01 embodying the same was never published, as mandated by law, for its effectivity. It was
only on March 30, 1992 when the amendments to the said Administrative Order were filed in the UP Law Center, and
published in the National Administrative Register as required by the Administrative Code of 1987.

Finally, it is the declared Policy of the Government to develop and strengthen trade relations with the Peoples Republic
of China. As declared by the President in EO 244 issued on May 12, 1995, continued coverage of the Peoples Republic of
China by Letter of Instructions No. 444 is no longer consistent with the countrys national interest, as coursing RP-PROC
trade through the PITC as provided for under Letter of Instructions No. 444 is becoming an unnecessary barrier to
trade.[37]

Conformably with such avowed policy, any remnant of the restrained atmosphere of trading between
the Philippines and PROC should be done away with, so as to allow economic growth and renewed trade relations with
our neighbors to flourish and may be encouraged.

ACCORDINGLY, the assailed decision of the lower court is hereby AFFIRMED, to the effect that judgment is hereby
rendered in favor of the private respondents, subject to the following MODIFICATIONS:

1) Enjoining the petitioner:

a) From further charging the petitioners the Counter Export Development Service fee of 0.5% of the total value of the
unliquidated or unfulfilled Undertakings of the private respondents;

b) From further implementing the provisions of Administrative Order No. SOCPEC 89-08-01 and its appurtenant rules;
and

2) Requiring petitioner to approve forthwith all the pending applications of, and all those that may hereafter be filed by,
the petitioner and the Intervenor, free from and without complying with the requirements prescribed in the above-
stated issuances.

SO ORDERED

[G.R. No. 118295. May 2, 1997]

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 third-millennium 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]

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,[2] Secretary Navarro on behalf of the Republic of the Philippines, agreed:

(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.

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.

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]

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:

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 General Agreement on Tariffs and Trade 1994

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: General Agreement on Trade in Services and Annexes

Annex 1C: 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[7] the Instrument of Ratification, declaring:

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:

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.

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]

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]
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]

The jurisdiction of this Court to adjudicate the matters[14] raised in the petition is clearly set out in the 1987
Constitution,[15] as follows:

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.

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.

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]

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
Trade-Related 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.

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 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.
In the same light, we held in Basco vs. Pagcor[25] that broad constitutional principles need legislative enactments to
implement them, thus:

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:

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. x x x

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

xxxxxxxxx

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 self-reliant 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.

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.

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.

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]

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:

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:
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]

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 [Link], 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.

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 [Link] 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:
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]

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.

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 [Link], 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]

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]

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.47-A 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]

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.[50]
To understand the scope and meaning of Article 34, TRIPS,[51] it will be fruitful to restate its full text as follows:

Article 34

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]

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.

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:

"(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]

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]
On the other hand, the WTO Agreement itself expresses what multilateral agreements are deemed included as its
integral parts,[58] as follows:

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]

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]

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]

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.

WHEREFORE, the petition is DISMISSED for lack of merit.

SO ORDERED.

EN BANC

SOUTHERN HEMISPHERE ENGAGEMENT G.R. No. 178552

NETWORK, INC., on behalf of the South-
South Network (SSN) for Non-State
Armed Group Engagement, and ATTY. Present:
SOLIMAN M. SANTOS, JR.,

Petitioners,
CORONA, C.J.,

CARPIO,

CARPIO MORALES,
- versus -
VELASCO, JR.,

NACHURA,

LEONARDO-DE CASTRO,
ANTI-TERRORISM COUNCIL, THE
EXECUTIVE SECRETARY, THE SECRETARY BRION,
OF JUSTICE, THE SECRETARY OF
PERALTA,
FOREIGN AFFAIRS, THE SECRETARY OF
NATIONAL DEFENSE, THE SECRETARY OF BERSAMIN,
THE INTERIOR AND LOCAL
GOVERNMENT, THE SECRETARY OF DEL CASTILLO,
FINANCE, THE NATIONAL SECURITY
ABAD,
ADVISER, THE CHIEF OF STAFF OF THE
ARMED FORCES OF THE PHILIPPINES, VILLARAMA, JR.,
AND THE CHIEF OF THE PHILIPPINE
NATIONAL POLICE, PEREZ,

Respondents. MENDOZA, and

SERENO, JJ.

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

KILUSANG MAYO UNO (KMU),

represented by its Chairperson Elmer
Labog, NATIONAL FEDERATION OF
LABOR UNIONS-KILUSANG MAYO UNO
(NAFLU-KMU), 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,

- versus - Promulgated:

HON. EDUARDO ERMITA, in his capacity October 5, 2010

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 G.R. No. 178554
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

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,

- versus -

GLORIA MACAPAGAL-ARROYO, in her

capacity as President and Commander-
in-Chief, 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 G.R. No. 178581
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

KARAPATAN, ALLIANCE FOR THE

ADVANCEMENT OF PEOPLES 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 PEOPLES
RESPONSE, represented by Fr. Gilbert
Sabado, OCARM,

Petitioners,

- versus -

GLORIA MACAPAGAL-ARROYO, in her

capacity as President and Commander-
in-Chief, 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

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,

- versus -

EXECUTIVE SECRETARY EDUARDO

ERMITA AND THE MEMBERS OF THE
ANTI-TERRORISM COUNCIL (ATC),

Respondents.

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

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),
PAGKAKAISAT 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,

- versus -

GLORIA MACAPAGAL-ARROYO, in her

capacity as President and Commander-
in-Chief, 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.

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

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 officers[3] 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 officers[5] 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 individuals[8] 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 Council[9] 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 quasi-judicial functions. Section
1, Rule 65 of the Rules of Court is clear:

Section 1. Petition for [Link] 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 Secretary[12] 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. PCGG[13] 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 surveillanceand 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 America[17] (US)
and the European Union[18] (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 Administration[21] 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 17[23] 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. COMELEC[33] 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 Elections[36] 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 pre-enforcement 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 controversiesinvolving 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 terrorism[46] 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. Sandiganbayan[47] and Estrada v. Sandiganbayan.[48]

The Court clarifies.

At issue in Romualdez v. Sandiganbayan was whether the word intervene in Section 5[49] 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 offense[53] 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 Opinion[55] 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 Anti-Plunder 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 subtitle[61] 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 jurisprudence[74] 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 terrorism[77] 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. case[78] 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.

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