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MIRIAM DEFENSOR SANTIAGO v. COMELEC, GR No. 127325, 1997-03-19

Facts:
Delfin alleged in his petition that
Attached to the... petition is a copy of a "Petition for Initiative on the 1987
Constitution"[10] embodying the proposed amendments which consist in the
deletion from the aforecited sections of the provisions concerning term limits, and
with the following proposition:
DO YOU APPROVE OF LIFTING THE TERM LIMITS OF ALL ELECTIVE GOVERNMENT
OFFICIALS, AMENDING FOR THE PURPOSE SECTIONS 4 AND 7 OF ARTICLE VI,
SECTION 4 OF ARTICLE VII, AND SECTION 8 OF ARTICLE X OF THE 1987 PHILIPPINE
CONSTITUTION?
According to Delfin, the said Petition for Initiative will first be submitted to the
people, and after it is signed by at least twelve per cent of the total number of
registered voters in the country it will be formally filed with the COMELEC.
On 18 December 1996, the petitioners herein -- Senator Miriam Defensor Santiago,
Alexander Padilla, and Maria Isabel Ongpin -- filed this special civil action for
prohibition raising the following arguments:
(1) The constitutional provision on people's initiative to amend the Constitution can
only be implemented by law to be passed by Congress. No such law has been
passed;
(2) It is true that R.A. No. 6735 provides for three systems of initiative, namely,
initiative on the Constitution, on statutes, and on local legislation. However, it failed
to provide any subtitle on initiative on the Constitution, unlike in the other modes of
initiative, which... are specifically provided for in Subtitle II and Subtitle III. This
deliberate omission indicates that the matter of people's initiative to amend the
Constitution was left to some future law.
(5)The people's initiative is limited to amendments to the Constitution, not to
revision thereof. Extending or lifting of term limits constitutes a revision and is,
therefore, outside the power of the people's initiative.
Issues:
Issue No. 1

Whether R.A. No. 6735, entitled An Act Providing for a System of Initiative and
Referendum and Appropriating Funds Therefor, was intended to include or cover
initiative on amendments to the Constitution; and if so, whether the Act, as worded,
adequately covers... such initiative
Issue No. 2

Whether that portion of COMELEC Resolution No. 2300 (In re: Rules and Regulations
Governing the Conduct of Initiative on the Constitution, and Initiative and
Referendum on National and Local Laws) regarding the conduct of initiative on
amendments to the Constitution is valid,... considering the absence in the law of
specific provisions on the conduct of such initiative
Issue No. 3

Whether the lifting of term limits of elective national and local officials, as proposed
in the draft "Petition for Initiative on the 1987 Constitution," would constitute a
revision of, or an amendment to, the Constitution.
Ruling:
Ruling on the first issue:

R.A. NO. 6735 INTENDED TO INCLUDE THE SYSTEM

OF INITIATIVE ON AMENDMENTS TO THE
CONSTITUTION, BUT IS, UNFORTUNATELY,... INADEQUATE TO COVER THAT SYSTEM.
Section 2 of Article XVII of the Constitution provides:
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SEC. 2. Amendments to this Constitution may likewise be directly proposed by the

people through initiative upon a petition of at least twelve per centum of the total
number of registered voters, of which every legislative district must be represented
by at least... three per centum of the registered voters therein. No amendment
under this section shall be authorized within five years following the ratification of
this Constitution nor oftener than once every five years thereafter.
The Congress shall provide for the implementation of the exercise of this right.
This provision is not self-executory. In his book,[29] Joaquin Bernas, a member of
the 1986 Constitutional Commission, stated:
Without implementing legislation Section 2 cannot operate. Thus, although this
mode of amending the Constitution is a mode of amendment which bypasses
congressional action, in the last analysis it still is dependent on congressional
action.
Bluntly stated, the right of the people to directly propose amendments to the
Constitution through the system of initiative would remain entombed in the cold
niche of the Constitution until Congress provides for its implementation. Stated
otherwise, while the Constitution has... recognized or granted that right, the people
cannot exercise it if Congress, for whatever reason, does not provide for its
implementation.
Ruling on the second issue

COMELEC RESOLUTION NO. 2300, INSOFAR AS IT PRESCRIBES RULES AND

REGULATIONS ON THE CONDUCT OF INITIATIVE ON AMENDMENTS TO THE
CONSTITUTION, IS VOID.
It logically follows that the COMELEC cannot validly promulgate rules and
regulations to implement the exercise of the right of the people to directly propose
amendments to the Constitution through the system of initiative. It does not have
that power under R.A. No. 6735.
Reliance on the COMELEC's power under Section 2(1) of Article IX-C of the
Constitution is misplaced, for the laws and regulations referred to therein are those
promulgated by the COMELEC under (a) Section 3 of Article IX-C of the Constitution,
or (b) a law where subordinate... legislation is authorized and which satisfies the
"completeness" and the "sufficient standard" tests.
Ruling on the 3rd issue

The foregoing considered, further discussion on the issue of whether the proposal
to lift the term limits of the elective national and local officials is an amendment to,
and not a revision of, the Constitution is rendered unnecessary, if not academic.
Principles:
Section 2 of Article XVII of the Constitution... is not self-executory.
Without implementing legislation Section 2 cannot operate. Thus, although this
mode of amending the Constitution is a mode of amendment which bypasses
congressional action, in the last analysis it still is dependent on congressional
action.

Amendment Versus Revision Philippines

Amendment Versus Revision Philippines
FUNDAMENTAL DISTINCTIONS

The terms "amendment" and "revision" both pertain to changes in a

constitutional text, but they are not synonymous. Understanding the subtle but
crucial differences between them is essential for lawmakers, legal practitioners,
and the general populace.

AMENDMENT: FOCUSED AND SPECIFIC

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An amendment generally refers to a change of specific provisions within the

Constitution. These changes could be as minor as the alteration of a single word
or phrase, or as substantial as the addition or removal of an entire section or
article. However, the scope of an amendment is limited, in that it does not alter
the overall framework or structure of the Constitution.

REVISION: COMPREHENSIVE AND STRUCTURAL

On the other hand, a revision is much broader in scope and involves a

comprehensive change that affects the basic framework or structure of the
Constitution. This could include changes to the form of government, the powers
vested in each branch, or the way representation is established. Unlike
amendments, revisions often require a more rigorous process of approval,
which usually involves convening a constitutional assembly or a constitutional
convention.

LEGAL AND PROCEDURAL IMPLICATIONS

Given these distinctions, the processes for undertaking amendments and

revisions are often different. While amendments can sometimes be made
through simpler mechanisms such as a legislative vote, revisions generally
require a more thorough and participatory approach. The Philippine
Constitution, for instance, provides specific and separate mechanisms for
amendments and revisions, reflecting the gravity and scope of each type of
change.

CASE LAW AND PRECEDENTS

Over the years, Philippine jurisprudence has dealt with cases that have further
clarified the distinction between amendment and revision. Courts have weighed
in on what constitutes a "comprehensive" change warranting classification as a
revision, as opposed to a simple amendment. These judicial interpretations are
integral in guiding future constitutional alterations.

SOCIETAL AND POLITICAL RAMIFICATIONS

The distinction also carries significant societal and political implications.

Because revisions affect the fundamental structure of the Constitution, they
often have far-reaching consequences that affect the governance and societal
norms of the country. Therefore, they usually demand a higher level of public
engagement, scrutiny, and approval compared to amendments.

CONCLUSION

While both amendments and revisions serve the function of updating or

correcting the Constitution, understanding the distinctions between the two is
crucial for proper legal interpretation and civic participation. The difference lies
not just in the scale and impact but also in the legal and societal implications
that each carries. Therefore, it is imperative for everyone involved in the legal
field and governance to be aware of these differences to uphold the sanctity
and integrity of the Constitution
SELF-EXECUTING and NON-SELF-EXECUTING provisions of the Constitution
- Are provisions of the Constitution self-executory? Or is there a need for legislation to implement
these provisions?
A constitutional provision is self-executing when it can be given effect without the aid of legislation,
and there is nothing to indicate that legislation is intended to make it operative. For example, a
constitutional provision that any municipality by vote of four-sevenths of its qualified electors may
issue and sell revenue bonds in order to pay for the cost of purchasing a municipally owned public
utility is self-executing and effective without a legislative enactment.
Constitutional provisions are not self-executing if they merely set forth a line of policy or principles
without supplying the means by which they are to be effectuated, or if the language of the
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constitution is directed to the legislature. As a result, a constitutional provision that the legislature
shall direct by law in what manner and in what court suits may be brought against the state is not
self-executing.
Just as with constitutional provisions, statutes and court judgments can be self-executing.
Imbong vs. Ochoa, GR 204819, April 8, 2014
Whether or not (WON) RA 10354/Reproductive Health (RH) Law is unconstitutional for violating
the:
1. Right to life
NO. Majority of the Members of the Court believe that the question of when life begins is a scientific
and medical issue that should not be decided, at this stage, without proper hearing and evidence.
However, they agreed that individual Members could express their own views on this matter.
Article II, Section 12 of the Constitution states: “The State recognizes the sanctity of family life and
shall protect and strengthen the family as a basic autonomous social institution. It shall equally
protect the life of the mother and the life of the unborn from conception.”
In its plain and ordinary meaning, the traditional meaning of “conception” according to reputable
dictionaries cited by the speaker is that life begins at fertilization. Medical sources also support the
view that conception begins at fertilization.
The framers of the Constitution also intended for (a) “conception” to refer to the moment of
“fertilization” and (b) the protection of the unborn child upon fertilization. In addition, they did not
intend to ban all contraceptives for being unconstitutional; only those that kill or destroy the fertilized
ovum would be prohibited. Contraceptives that actually prevent the union of the male sperm and
female ovum, and those that similarly take action before fertilization should be deemed non-
abortive, and thus constitutionally permissible.
The intent of the framers of the Constitution for protecting the life of the unborn child was to prevent
the Legislature from passing a measure prevent abortion. The Court cannot interpret this otherwise.
The RH Law is in line with this intent and actually prohibits abortion. By using the word “or” in
defining abortifacient (Section 4(a)), the RH Law prohibits not only drugs or devices that prevent
implantation but also those that induce abortion and induce the destruction of a fetus inside the
mother’s womb. The RH Law recognizes that the fertilized ovum already has life and that the State
has a bounded duty to protect it.
However, the authors of the IRR gravely abused their office when they redefined the meaning of
abortifacient by using the term “primarily”. Recognizing as abortifacients only those that “primarily
induce abortion or the destruction of a fetus inside the mother’s womb or the prevention of the
fertilized ovum to reach and be implanted in the mother’s womb” (Sec. 3.01(a) of the IRR) would
pave the way for the approval of contraceptives that may harm or destroy the life of the unborn from
conception/fertilization. This violates Section 12, Article II of the Constitution. For the same reason,
the definition of contraceptives under the IRR (Sec 3.01(j)), which also uses the term “primarily”,
must be struck down.

2. Right to health
NO. Petitioners claim that the right to health is violated by the RH Law because it requires the
inclusion of hormonal contraceptives, intrauterine devices, injectables and other safe, legal, non-
abortifacient and effective family planning products and supplies in the National Drug Formulary
and in the regular purchase of essential medicines and supplies of all national hospitals (Section 9
of the RH Law). They cite risks of getting diseases gained by using e.g. oral contraceptive pills.
Some petitioners do not question contraception and contraceptives per se. Rather, they pray that
the status quo under RA 4729 and 5921 be maintained. These laws prohibit the sale and
distribution of contraceptives without the prescription of a duly-licensed physician.
The RH Law does not intend to do away with RA 4729 (1966). With RA 4729 in place, the Court
believes adequate safeguards exist to ensure that only safe contraceptives are made available to
the public. In fulfilling its mandate under Sec. 10 of the RH Law, the DOH must keep in mind the
provisions of RA 4729: the contraceptives it will procure shall be from a duly licensed drug store or
pharmaceutical company and that the actual distribution of these contraceptive drugs and devices
will be done following a prescription of a qualified medical practitioner.
Meanwhile, the requirement of Section 9 of the RH Law is to be considered “mandatory” only after
these devices and materials have been tested, evaluated and approved by the FDA. Congress
cannot determine that contraceptives are “safe, legal, non-abortificient and effective”.

Belgica vs. Ochoa, GR 208566, Nov. 19, 2013

NATURE:
These are consolidated petitions taken under Rule 65 of the Rules of Court, all of which assail the
constitutionality of the Pork Barrel System.
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FACTS:
The NBI Investigation was spawned by sworn affidavits of six (6) whistle-blowers who declared that
JLN Corporation (Janet Lim Napoles) had swindled billions of pesos from the public coffers for
"ghost projects" using dummy NGOs. Thus, Criminal complaints were filed before the Office of the
Ombudsman, charging five (5) lawmakers for Plunder, and three (3) other lawmakers for
Malversation, Direct Bribery, and Violation of the Anti-Graft and Corrupt Practices Act. Also
recommended to be charged in the complaints are some of the lawmakers’ chiefs -of-staff or
representatives, the heads and other officials of three (3) implementing agencies, and the several
presidents of the NGOs set up by Napoles.
Whistle-blowers alleged that" at least P900 Million from royalties in the operation of the Malampaya
gas project off Palawan province intended for agrarian reform beneficiaries has gone into a dummy
NGO. Several petitions were lodged before the Court similarly seeking that the "Pork Barrel
System" be declared unconstitutional

G.R. No. 208493 – SJS filed a Petition for Prohibition seeking that the "Pork Barrel System" be
declared unconstitutional, and a writ of prohibition be issued permanently
G.R. No. 208566 - Belgica, et al filed an Urgent Petition For Certiorari and Prohibition With Prayer
For The Immediate Issuance of Temporary Restraining Order and/or Writ of Preliminary Injunction
seeking that the annual "Pork Barrel System," presently embodied in the provisions of the GAA of
2013 which provided for the 2013 PDAF, and the Executive‘s lump-sum, discretionary funds, such
as the Malampaya Funds and the Presidential Social Fund, be declared unconstitutional and null
and void for being acts constituting grave abuse of discretion. Also, they pray that the Court issue a
TRO against respondents

UDK-14951 – A Petition filed seeking that the PDAF be declared unconstitutional, and a cease and
desist order be issued restraining President Benigno Simeon S. Aquino III (President Aquino) and
Secretary Abad from releasing such funds to Members of Congress

ISSUES:
1. Whether or not the 2013 PDAF Article and all other Congressional Pork Barrel Laws similar
thereto are unconstitutional considering that they violate the principles of/constitutional provisions
on (a) separation of powers; (b) non-delegability of legislative power; (c) checks and balances; (d)
accountability; (e) political dynasties; and (f) local autonomy.
2. Whether or not the phrases (under Section 8 of PD 910,116 relating to the Malampaya
Funds, and under Section 12 of PD 1869, as amended by PD 1993, relating to the Presidential
Social Fund, are unconstitutional insofar as they constitute undue delegations of legislative power.

HELD:
1. Yes, the PDAF article is unconstitutional. The post-enactment measures which govern the
areas of project identification, fund release and fund realignment are not related to functions of
congressional oversight and, hence, allow legislators to intervene and/or assume duties that
properly belong to the sphere of budget execution. This violates the principle of separation of
powers. Congress‘role must be confined to mere oversight that must be confined to: (1) scrutiny
and (2) investigation and monitoring of the implementation of laws. Any action or step beyond that
will undermine the separation of powers guaranteed by the constitution.

Thus, the court declares the 2013 pdaf article as well as all other provisions of law which similarly
allow legislators to wield any form of post-enactment authority in the implementation or enforcement
of the budget, unrelated to congressional oversight, as violative of the separation of powers
principle and thus unconstitutional.

2. Yes. Sec 8 of PD 910- the phrase “and for such other purposes as may be hereafter directed
by the President”‖ constitutes an undue delegation of legislative power insofar as it does not lay
down a sufficient standard to adequately determine the limits of the President‘s authority with
respect to the purpose for which the Malampaya Funds may be used. It gives the President wide
latitude to use the Malampaya Funds for any other purpose he may direct and, in effect, allows him
to unilaterally appropriate public funds beyond the purview of the law.”

Section 12 of PD 1869, as amended by PD 1993- the phrases:

(b) "to finance the priority infrastructure development projects” was declared constitutional. IT
INDICATED PURPOSE ADEQUATELY CURTAILS THE AUTHORITY OF THE PRESIDENT TO
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SPEND THE PRESIDENTIAL SOCIAL FUND ONLY FOR RESTORATION PURPOSES WHICH
ARISE FROM CALAMITIES.

(b)” and to finance the restoration of damaged or destroyed facilities due to calamities, as may be
directed and authorized by the Office of the President of the Philippines” was declared
[Link] GIVES THE PRESIDENT CARTE BLANCHE AUTHORITY TO USE THE SAME
FUND FOR ANY INFRASTRUCTURE PROJECT HE MAY SO DETERMINE AS A ―PRIORITY‖.
VERILY, THE LAW DOES NOT SUPPLY A DEFINITION OF ―PRIORITY INFRASTRUCTURE
DEVELOPMENT PROJECTS‖ AND HENCE, LEAVES THE PRESIDENT WITHOUT ANY
GUIDELINE TO CONSTRUE THE SAME.

Oposa vs. Factoran Case Digest (G.R. No. 101083, July 30, 1993)
FACTS:
The plaintiffs in this case are all minors duly represented and joined by their parents. The first
complaint was filed as a taxpayer's class suit at the Branch 66 (Makati, Metro Manila), of the
Regional Trial Court, National capital Judicial Region against defendant (respondent) Secretary of
the Department of Environment and Natural Reasources (DENR). Plaintiffs alleged that they are
entitled to the full benefit, use and enjoyment of the natural resource treasure that is the country's
virgin tropical forests. They further asseverate that they represent their generation as well as
generations yet unborn and asserted that continued deforestation have caused a distortion and
disturbance of the ecological balance and have resulted in a host of environmental tragedies.
Plaintiffs prayed that judgement be rendered ordering the respondent, his agents, representatives
and other persons acting in his behalf to cancel all existing Timber License Agreement (TLA) in the
country and to cease and desist from receiving, accepting, processing, renewing or approving new
TLAs.
Defendant, on the other hand, filed a motion to dismiss on the ground that the complaint had no
cause of action against him and that it raises a political question.
The RTC Judge sustained the motion to dismiss, further ruling that granting of the relief prayed for
would result in the impairment of contracts which is prohibited by the Constitution.
Plaintiffs (petitioners) thus filed the instant special civil action for certiorari and asked the court to
rescind and set aside the dismissal order on the ground that the respondent RTC Judge gravely
abused his discretion in dismissing the action.
ISSUES:
(1) Whether or not the plaintiffs have a cause of action.
(2) Whether or not the complaint raises a political issue.
(3) Whether or not the original prayer of the plaintiffs result in the impairment of contracts.
RULING:
First Issue: Cause of Action.
Respondents aver that the petitioners failed to allege in their complaint a specific legal right violated
by the respondent Secretary for which any relief is provided by law. The Court did not agree with
this. The complaint focuses on one fundamental legal right -- the right to a balanced and healthful
ecology which is incorporated in Section 16 Article II of the Constitution. The said right carries with it
the duty to refrain from impairing the environment and implies, among many other things, the
judicious management and conservation of the country's forests. Section 4 of E.O. 192 expressly
mandates the DENR to be the primary government agency responsible for the governing and
supervising the exploration, utilization, development and conservation of the country's natural
resources. The policy declaration of E.O. 192 is also substantially re-stated in Title XIV Book IV of
the Administrative Code of 1987. Both E.O. 192 and Administrative Code of 1987 have set the
objectives which will serve as the bases for policy formation, and have defined the powers and
functions of the DENR. Thus, right of the petitioners (and all those they represent) to a balanced
and healthful ecology is as clear as DENR's duty to protect and advance the said right.

A denial or violation of that right by the other who has the correlative duty or obligation to respect or
protect or respect the same gives rise to a cause of action. Petitioners maintain that the granting of
the TLA, which they claim was done with grave abuse of discretion, violated their right to a balance
and healthful ecology. Hence, the full protection thereof requires that no further TLAs should be
renewed or granted.
After careful examination of the petitioners' complaint, the Court finds it to be adequate enough to
show, prima facie, the claimed violation of their rights.
Second Issue: Political Issue.
Second paragraph, Section 1 of Article VIII of the constitution provides for the expanded jurisdiction
vested upon the Supreme Court. It allows the Court to rule upon even on the wisdom of the
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decision of the Executive and Legislature and to declare their acts as invalid for lack or excess of
jurisdiction because it is tainted with grave abuse of discretion.
Third Issue: Violation of the non-impairment clause.
The Court held that the Timber License Agreement is an instrument by which the state regulates
the utilization and disposition of forest resources to the end that public welfare is promoted. It is not
a contract within the purview of the due process clause thus, the non-impairment clause cannot be
invoked. It can be validly withdraw whenever dictated by public interest or public welfare as in this
case. The granting of license does not create irrevocable rights, neither is it property or property
rights.
Moreover, the constitutional guaranty of non-impairment of obligations of contract is limit by the
exercise by the police power of the State, in the interest of public health, safety, moral and general
welfare. In short, the non-impairment clause must yield to the police power of the State.
The instant petition, being impressed with merit, is hereby GRANTED and the RTC decision is SET
ASIDE.
FACTS:

The petitioners, all minors duly represented and joined by their respective parents, filed a petition to
cancel all existing timber license agreements (TLAs) in the country and to cease and desist from
receiving, accepting, processing, renewing or approving new timber license agreements. This case
is filed not only on the appellants’ right as taxpayers, but they are also suing in behalf of succeeding
generations based on the concept of “intergenerational responsibility” in so far as the right to a
balanced and healthful ecology is concerned.

Together with the Philippine Ecological Network, Inc. (PENI), the petitioners presented scientific
evidence that deforestation have resulted in a host of environmental tragedies. One of these is the
reduction of the earth’s capacity to process carbon dioxide, otherwise known as the “greenhouse
effect”.

Continued issuance by the defendant of TLAs to cut and deforest the remaining forest stands will
work great damage and irreparable injury to the plaintiffs. Appellants have exhausted all
administrative remedies with the defendant’s office regarding the plea to cancel the said TLAs. The
defendant, however, fails and refuses to cancel existing TLAs.

ISSUES:
Whether or not the petitioners have legal standing on the said case
Admitting that all facts presented are true, whether or not the court can render a valid judgement in
accordance to the prayer of the complaints
Whether or not the TLAs may be revoked despite the respondents standing that these cancellation
of these TLAs are against the non-impairment clause of the Constitution
HELD:
The petitioners have locus standi (legal standing) on the case as a taxpayers’ (class) suit. The
subject matter of complaint is of common and general interest to all the citizens of the Philippines.
The court found difficulty in ruling that the appellants can, for themselves, and for others file a class
suit.
The right of the petitioners to a balanced and healthful ecology has been clearly stated. A denial or
violation of that right by the other who has the correlative duty or obligation to respect or protect the
same gives rise to a cause of action. The granting of the TLAs, as the petitioners claim to be done
with grave abuse of discretion, violated their right to a balanced and healthful ecology hence, the
full protection thereof requires that no TLAs should be renewed or granted. The appellants have
also submitted a document with the sub-header CAUSE OF ACTION which is adequate enough to
show, prima facie, the violation of their rights. On this basis, these actions must therefore be
granted, wholly or partially.
Despite the Constitution’s non-impairment clause, TLAs are not contracts, rather licenses; thus, the
said clause cannot be invoked. Even if these are protected by the said clause, these can be
revoked if the public interest so required as stated in Section 20 of the Forestry Reform Code (P.D.
No. 705). Furthermore, Section 16 of Article II of the 1987 Constitution explicitly provides that: “The
State shall protect the right of the people to a balanced and healthful ecology in accord with the
rhythm and harmony of nature.” The right to a balanced and healthful ecology carries with it the
correlative duty to refrain from impairing the government. The said right is also clear as the DENR’s
duty – under its mandate and by virtue of its powers and functions under Executive Order No. 192
and the Administrative Code of 1987 to protect and advance the said right.
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Needless to say, all licenses may thus be revoked or rescinded. It is not a contract, property or
property right protected by the due process clause of the Constitution.

Tañada vs. Angara, GR 118295, May 2, 1997

THE FACTS

Petitioners Senators Tañada, et al. questioned the constitutionality of the concurrence by the
Philippine Senate of the President’s ratification of the international Agreement establishing the
World Trade Organization (WTO). They argued that the WTO Agreement violates the mandate of
the 1987 Constitution to “develop a self-reliant and independent national economy effectively
controlled by Filipinos . . . (to) give preference to qualified Filipinos (and to) promote the preferential
use of Filipino labor, domestic materials and locally produced goods.” Further, they contended that
the “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 our Constitution, and render meaningless the phrase “effectively
controlled by Filipinos.”

II. THE ISSUE

Does the 1987 Constitution prohibit our country from participating in worldwide trade liberalization
and economic globalization and from integrating into a global economy that is liberalized,
deregulated and privatized?

III. THE RULING

[The Court DISMISSED the petition. It sustained the concurrence of the Philippine Senate of the
President’s ratification of the Agreement establishing the WTO.]

NO, the 1987 Constitution DOES NOT prohibit our country from participating in worldwide trade
liberalization and economic globalization and from integrating into a global economy that is
liberalized, deregulated and privatized.

There are enough balancing provisions in the Constitution to allow the Senate to ratify the
Philippine concurrence in the WTO Agreement.

[W]hile 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. 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 [Link] fact, it allows an exchange on the basis of equality and reciprocity, frowning only on
foreign competition that is unfair.

[T]he constitutional policy of a “self-reliant and independent national economy” 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.

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,” the fundamental law encourages industries that are “competitive in both domestic and
foreign markets,” thereby demonstrating a clear policy against a sheltered domestic trade
environment, but one in favor of the gradual development of robust industries that can compete with
the best in the foreign markets. Indeed, Filipino managers and Filipino enterprises have shown
capability and tenacity to compete internationally. And given a free trade environment, Filipino
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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.

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. Ineludibly, 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.

Tanada vs Angara, 272 SCRA 18, May 2, 1997

Facts : This is a petition seeking to nullify the Philippine ratification of the World Trade Organization
(WTO) Agreement. Petitioners question the concurrence of herein respondents acting in their
capacities as Senators via signing the said agreement.

The WTO opens access to foreign markets, especially its major trading partners, through the
reduction of tariffs on its exports, particularly agricultural and industrial products. Thus, provides
new opportunities for the service sector cost and uncertainty associated with exporting and more
investment in the country. These are the predicted benefits as reflected in the agreement and as
viewed by the signatory Senators, a “free market” espoused by WTO.

Petitioners on the other hand viewed the WTO agreement as one that limits, restricts and impair
Philippine economic sovereignty and legislative power. That the Filipino First policy of the
Constitution was taken for granted as it gives foreign trading intervention.

Issue : Whether or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of the Senate in giving its concurrence of the said WTO agreement.

Held: 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. By the doctrine of
incorporation, the country is bound by generally accepted principles of international law, which are
considered automatically part of our own laws. Pacta sunt servanda – international agreements
must be performed in good faith. A treaty is not a mere moral obligation but creates a legally
binding obligation on the parties.
Through WTO the sovereignty of the state cannot in fact and reality be considered as absolute
because it is a regulation of commercial relations among nations. Such as when Philippines joined
the United Nations (UN) it consented to restrict its sovereignty right under the “concept of
sovereignty as autolimitation.” What Senate did was a valid exercise of authority. As to determine
whether such exercise is wise, beneficial or viable is outside the realm of judicial inquiry and review.
The act of signing the said agreement is not a legislative restriction as WTO allows withdrawal of
membership should this be the political desire of a member. Also, it should not be viewed as a
 10

limitation of economic sovereignty. WTO remains as the only viable structure for multilateral trading
and the veritable forum for the development of international trade law. Its alternative is isolation,
stagnation if not economic self-destruction. Thus, the people be allowed, through their duly elected
officers, make their free choice.

BFAR Employees vs. COA, GR 169815, Aug. 13, 2008

Facts: The BFAR Employees Union issued a resolution requesting the BFAR Central Office for a
Food Basket Allowance. It justified its request on the high cost of living which makes it hard to
sustain even the four basic needs. On post-audit, COA disallowed the grant of Food Basket
Allowance. Petitioners moved for reconsideration and prayed for the lifting of the disallowance for
being unconstitutional as it contravenes the fundamental principle of the State enshrined under
Sections 9 and 10, Article II of the 1987 Constitution:

Section 9. The State shall promote a just and dynamic social order that will ensure the prosperity
and independence of the nation and free the people from poverty through policies that provide
adequate social services, promote full employment, a rising standard of living, and an improved
quality of life for all.

Section 10. The State shall promote social justice in all phases of national development.

Issue: Is the disallowance in question unconstitutional?

Held: The court denied the petition. Social justice provisions of the Constitution are not self-
executing principles ready for enforcement through the courts. They are merely statements of
principles and policies giving guidelines for legislation and that they do not embody judicially
enforceable constitutional rights.
Separation of Powers – pp. 677-678

Non-Delegation of Powers - pp. 685-696

Separation of Powers
Essence. In essence, separation of powers means that legislation belongs to Congress, execution
to the executive, settlement of legal controversies to the judiciary. Each is prevented from invading
the domain of others. (Bernas, Commentary 656, 2003 ed.)
Division and Assignment. Its starting point is the assumption of the division of the functions of the
government into three distinct classes—the executive, the legislative and the judicial. Its essence
consists in the assignment of each class of functions to one of the three organs of government.
Theory. The theory is that “a power definitely assigned by the Constitution to one department can
neither be surrendered nor delegated by that department, nor vested by statute in another
department or agency.”
Reason. The underlying reason of this principle is the assumption that arbitrary rule and abuse of
authority would inevitably result from the concentration of the three powers of government in
the same person, body of persons or organ.
More specifically, according to Justice Laurel, the doctrine of separation of powers is intended to:
[Link] action
2. To forestall overaction
3. To prevent despotism
4. To obtain efficiency
History. Separation of powers became the pith and core of the American system of government
largely through the influence of the French political writer Montesquieu. By the establishment of the
American sovereignty in the Philippines, the principle was introduced as an inseparable feature of
the governmental system organized by the United States in this country.
Limitations on the Principle
1. System of Checks and Balances
2. Existence of overlapping powers
Republicanism
 11

The essence of republicanism is representation and renovation, the selection by the citizenry of a
corps of public functionaries who derive their mandate from the people and act on their behalf,
serving for a limited period only, after which they are replaced or retained at the option of their
principal
Checks and Balances
The Constitution fixes certain limits on the independence of each department. In order that these
limits may be observed, the Constitution gives each department certain powers by which it may
definitely restrain the other from exceeding their authority. Thus, checks and balances are formed.
To carry out the system of checks and balances, the Constitution provides:
1. The acts of the legislative department have to be presented to the executive for approval or
disapproval.
2. The executive department may veto the acts of the legislature if in its judgment they are not in
conformity with the Constitution or are detrimental to the interests of the people.
3. The courts are authorized to determine the validity of legislative measures or executive acts.
4. Through its pardoning power, the executive may modify or set aside the judgments of the courts.
5. The legislature may pass laws that in effect amend or completely revoke decisions of the courts if
in its judgment they are not in harmony with its intention or policy which is not contrary to the
Constitution.
6. President must obtain the concurrence of Congress to complete certain significant acts.
7. Money can be released from the treasury only by authority of Congress
Justiciable Questions vs Political Questions:
A justiciable question is one that can be decided by courts like issues arising out of obligations and
contracts, and violations of laws, etc. The courts have jurisdiction over these things, meaning they
can hold a trial and issue judgments.
Political questions, on the other hand, are beyond the reach and jurisdiction of courts and are better
decided by the people using their sovereign rights and discretion. A classic example is who should
win in an election? The courts cannot dictate who is the better candidate, as this is a political
question that only the people can decide. But if there is cheating during the election, the court can
decide whether there was cheating or not because there are laws that determine it, hence, this is a
justiciable issue.
A ‘political question’ is one the resolution of which has been vested by the Constitution exclusively
in either the people, in the exercise of their sovereign capacity, or in which full discretionary
authority has been delegated to a co-equal branch of the Government.
PRINCIPLES AND STATE POLICIES
- 1935 Constitution
- 1973 Constitution
- 1987 Constitution
Republicanism
o Manifestations of Republicanism
§§ OURS IS A GOVERNMENT OF LAWS AND NOT OF MEN
(Villavicencio vs. Lukban, GR L-14639, March 25, 1919)
§§ Rule of the majority (Plurality in elections)
§§ Accountability of public officials
§§ Bill of Rights
§§ Legislature cannot pass irrepealable laws
§§ SEPARATION OF POWERS
§§ NON-DELEGATION OF POWERS
Villacicencio Vs Lukban

Facts : One hundred and seventy women were isolated from society, and then at night, without
their consent and without any opportunity to consult with friends or to defend their rights, were
forcibly hustled on board steamers for transportation to regions unknown. Despite the feeble
attempt to prove that the women left voluntarily and gladly, that such was not the case is shown by
the mere fact that the presence of the police and the constabulary was deemed necessary and that
these officers of the law chose the shades of night to cloak their secret and stealthy acts. Indeed,
this is a fact impossible to refute and practically admitted by the respondents.

ISSUE : WON Mayor Lukban has the right to deport women with ill repute.

HELD : Law defines power. No official, no matter how high, is above the law. Lukban committed a
grave abuse of discretion by deporting the prostitutes to a new domicile against their will. There is
no law expressly authorizing his action. On the contrary, there is a law punishing public officials, not
expressly authorized by law or regulation, who compels any person to change his residence
 12

Furthermore, the prostitutes are still, as citizens of the Philippines, entitled to the same rights, as
stipulated in the Bill of Rights, as every other citizen. Thei rchoice of profession should not be a
cause for discrimination. It may make some, like Lukban, quite uncomfortable but it does not
authorize anyone to compel said prostitutes to isolate themselves from the rest of the human race.
These women have been deprived of their liberty by being exiled to Davao without even being given
the opportunity to collect their belongings or, worse, without even consenting to being transported to
Mindanao. For this, Lukban etal must be severely punished

PRINCIPLE OF SEPARATION OF POWERS

OØ Under 1987 Constitution
OØ Why is it observed in our Government?
OØ What is the purpose?
OØ Acc. to Justice Laurel,
- to secure action
- to forestall overaction
- to prevent despotism
- to obtain efficiency
OØ To be understood not as INDEPENDENCE but INTERDEPENDENCE
OØ Doctrine of Blending of Powers
OØ Doctrine of Checks and Balances, Belgica vs. Ochoa, GR 208566, Nov. 19, 2013
Which department ensures the constitutional distribution of powers?
- Does it mean such department is superior to the other departments?
• Angara vs. Electoral Commission (see session 2)

DOCTRINE OF SUPREMACY OF THE CONSTITUTION

FACTS:

In the elections of Sept. 17, 1935, petitioner Jose A. Angara and the respondents Pedro Ynsua,
Miguel Castillo, and Dionisio Mayor were candidates for the position of members of the National
Assembly for the first district of Tayabas.

On Oct. 7, 1935, the provincial board of canvassers proclaimed Angara as member-elect of the
National Assembly and on Nov. 15, 1935, he took his oath of office.

On Dec. 3, 1935, the National Assembly passed Resolution No. 8, which in effect, fixed the last
date to file election protests.
On Dec. 8, 1935, Ynsua filed before the Electoral Commission a "Motion of Protest" against Angara
and praying, among other things, that Ynsua be named/declared elected Member of the National
Assembly or that the election of said position be nullified.

On Dec. 9, 1935, the Electoral Commission adopted a resolution (No. 6) stating that last day for
filing of protests is on Dec. 9. Angara contended that the Constitution confers exclusive jurisdiction
upon the Electoral Commission solely as regards the merits of contested elections to the National
Assembly and the Supreme Court therefore has no jurisdiction to hear the case.

ISSUES:

Whether or not the Supreme Court has jurisdiction over the Electoral Commission and the subject
matter of the controversy upon the foregoing related facts, and in the affirmative,

RULING:

In the case at bar, here is then presented an actual controversy involving as it does a conflict of a
grave constitutional nature between the National Assembly on one hand, and the Electoral
Commission on the other. Although the Electoral Commission may not be interfered with, when and
while acting within the limits of its authority, it does not follow that it is beyond the reach of the
constitutional mechanism adopted by the people and that it is not subject to constitutional
restrictions. The Electoral Commission is not a separate department of the government, and even if
it were, conflicting claims of authority under the fundamental law between departmental powers and
agencies of the government are necessarily determined by the judiciary in justiciable and
appropriate cases.
 13

The court has jurisdiction over the Electoral Commission and the subject matter of the present
controversy for the purpose of determining the character, scope, and extent of the constitutional
grant to the Electoral Commission as "the sole judge of all contests relating to the election, returns,
and qualifications of the members of the National Assembly."

The Electoral Commission was created to transfer in its totality all the powers previously exercised
by the legislature in matters pertaining to contested elections of its members, to an independent
and impartial tribunal. The express lodging of that power in the Electoral Commission is an implied
denial in the exercise of that power by the National Assembly. And thus, it is as effective a
restriction upon the legislative power as an express prohibition in the Constitution.

Therefore, the incidental power to promulgate such rules necessary for the proper exercise of its
exclusive power to judge all contests relating to the election, returns, and qualifications of members
of the National Assembly, must be deemed by necessary implication to have been lodged also in
the Electoral Commission.

It appears that on Dec. 9, 1935, the Electoral Commission met for the first time and approved a
resolution fixing said date as the last day for the filing of election protests. When, therefore, the
National Assembly passed its resolution of Dec. 3, 1935, confirming the election of the petitioner to
the National Assembly, the Electoral Commission had not yet met; neither does it appear that said
body had actually been organized.

While there might have been good reason for the legislative practice of confirmation of the election
of members of the legislature at the time the power to decide election contests was still lodged in
the legislature, confirmation alone by the legislature cannot be construed as depriving the Electoral
Commission of the authority incidental to its constitutional power to be "the sole judge of all
contests...", to fix the time for the filing of said election protests.

The Electoral Commission was acting within the legitimate exercise of its constitutional prerogative
in assuming to take cognizance of the protest filed by the respondent, Pedro Ynsua against the
election of the herein petitioner, Jose A. Angara, and that the resolution of the National Assembly
on Dec. 3, 1935, cannot in any manner toll the time for filing protest against the election, returns,
and qualifications of the members of the National Assembly, nor prevent the filing of protests within
such time as the rules of the Electoral Commission might prescribe.

The petition for a writ of prohibition against the electoral commission is hereby denied, with cost
against the petitioner.

• Abakada Guro Party List vs. Purisima, GR 166715, Aug. 14, 2008;

This petition for prohibition seeks to prevent respondents from implementing and enforcing Republic
Act (RA) 9335

(Attrition Actof 2005).RA 9335 was enacted to optimize the revenue-generation capability and
collection of the Bureau of Internal Revenue (BIR) and theBureau of Customs (BOC). The law
intends to encourage BIR and BOC officials and employees to exceed their revenue targets
byproviding a system of rewards and sanctions through the creation of a Rewards and Incentives
Fund (Fund) and a RevenuePerformance Evaluation Board (Board). It covers all officials and
employees of the BIR and the BOC with at least six months of service, regardless of employment
status2.

Petitioners, invoking their right as taxpayers filed this petition challenging the constitutionality of RA
9335, a tax reformlegislation. They contend that, by establishing a system of rewards and
incentives, the law "transform[s] the officials andemployees of the BIR and the BOC into
mercenaries and bounty hunters" as they will do their best only in consideration of suchrewards.
Petitioners also assail the creation of a congressional oversight committee on the ground that it
violates the doctrineof separation of powers,
for it permits legislative participation in the implementation and enforcement of the law.

ISSUE:
WON the joint congressional committee is valid and constitutional
 14

HELD:
No. It is [Link] the case of Macalintal, in the discussion of J. Puno,
the power of oversight embraces all activities undertaken by Congress to enhanceits understanding
of and influence over the
implementation
of legislation it has enacted. Clearly, oversight concerns
post-enactment
measures undertaken by Congress: (a) to monitor bureaucratic compliance with program
objectives, (b) to determine whether agenciesare properly administered, (c) to eliminate executive
waste and dishonesty, (d) to prevent executive usurpation of legislative authority,and (d) to assess
executive conformity with the congressional perception of public interest.
The power of oversight has been held to beintrinsic in the grant of legislative power itself and
integral to the checks and balances inherent in a democratic system of governmentWith this
backdrop, it is clear that congressional oversight is not unconstitutional
per se, meaning, it neither necessarily constitutes anencroachment on the executive power to
implement laws nor undermines the constitutional separation of powers. Rather, it is integral tothe
checks and balances inherent in a democratic system of government. It may in fact even enhance
the separation of powers as itprevents the over-accumulation of power in the executive branch.
However, to forestall the danger of congressional encroachment "beyond the legislative sphere,"
the Constitution imposes two basicand related constraints on Congress. It may not vest itself, any of
its committees or its members with either executive or judicial power.

And, when it exercises its legislative power, it must follow the "single, finely wrought and
exhaustively considered, procedures" specifiedunder the Constitution including the procedure for
enactment of laws and [Link], any post-enactment congressional measure such as this
should be limited to scrutiny and investigation. In particular, congressionaloversight must be
confined to the following:(1) scrutiny based primarily on Congress' power of appropriation and the
budget hearings conducted in connection withit, its power to ask heads of departments to appear
before and be heard by either of its Houses on any matterpertaining to their departments and its
power of confirmation and(2) investigation and monitoring of the implementation of laws pursuant to
the power of Congress to conduct inquiries inaid of legislation.
Any action or step beyond that will undermine the separation of powers guaranteed by the
Constitution. Legislative vetoes fall in thisclass. Legislative veto is a statutory provision requiring the
President or an administrative agency to present the proposed implementing rules andregulations
of a law to Congress which, by itself or through a committee formed by it, retains a "right" or "power"
to approve or disapprovesuch regulations before they take effect. As such, a legislative veto in the
form of a congressional oversight committee is in the form of aninward-turning delegation designed
to attach a congressional leash (other than through scrutiny and investigation) to an agency to
whichCongress has by law initially delegated broad powers. It radically changes the design or
structure of the Constitution's diagram of power asit entrusts to Congress a direct role in enforcing,
applying or implementing its own laws.

• Belgica vs. Ochoa, GR 208566, Nov. 19, 2013 (note: case involves
various issues, but focus only on issue about “separation of
powers”)
WHAT IS THE TEST TO DETERMINE WHETHER A GIVEN POWER HAS
BEEN VALIDLY EXERCISED BY A PARTICULAR DEPARTMENT?
OØ FIRST, SC determines whether the power has been constitutionally conferred
upon the department. Conferment of power is either:
1. EXPRESS – Art. VI, VII, VIII of the 1987 Constitution
2. IMPLIED - DOCTRINE OF NECESSARY IMPLICATION
§§ Angara vs. Electoral Commission (see session 2)
3. INHERENT OR INCIDENTAL
§§ Harvey vs. Defensor-Santiago GR 82544, June 28, 1988

Facts:
Petitioners were among the 22 suspected alien pedophiles who were apprehended after
three months close surveillance by the Commission on Immigration and Deportation (CID)
agents in Pagsanjan Laguna. Two days after apprehension 17 opted for self deportation, one
released for lack of evidenced, one was charged by another offense, working without a valid
working visa. Thus, three was left to face the deportation proceedings.
 15

Seized during petitioners apprehension were rolls of photo negatives and photos of the
suspected child prostitute shown in salacious poses as well as boys and girls engaged in the sexual
act. There were also posters and other literatures advertising the child prostitution.
Warrant of arrest was issued by respondent against petitioners for violation of Sec. 37, 45
and 46 of the Immigration act and sec. 69 of the revised administrative Code.

Issue:
Whether or not the Philippines immigration act clothed the commissioner with any authority
to arrest and detained petitioner pending determination of the existence of a probable cause

Ruling:
The Supreme Court held that there can be no question that the right against unreasonable
search and seizure is available to all persons, including aliens, whether accused of a crime or not.
One of the constitutional requirement of a valid search warrant or warrant of arrest is that it
must be based upon probable cause.
The arrest of petitioners was based on probable cause determined after close surveillance
for three (3) months during which period their activities were monitored. The existence of probable
cause justified the arrest and the seizure of the photo negatives, photographs and posters without
warrant. Those articles were seized as an incident to a lawful arrest and, are therefore, admissible
in evidence.
But even assuming arguendo that the arrest of petitioners was not valid at its inception, the
records show that formal deportation charges have been filed against them, as undesirable aliens.

That petitioners were not "caught in the act" does not make their arrest illegal. Petitioners
were found with young boys in their respective rooms, the ones with John Sherman being naked.
Under those circumstances the CID agents had reasonable grounds to believe that petitioners had
committed "pedophilia" defined as "psychosexual perversion involving children"

(DOCTRINE OF ACT OF STATE)

SECOND, after sustaining the exercise of power (meaning, there is
determination of valid constitutional grant of power to exercise), the SC’s
official action does not stop there; it now then determines whether the act in
question had been performed in accordance with the rules laid down by the
constitution.
- But you should qualify whether the question involved is Justiciable or Political –
o Justiciable vs. Political Questions?

• Co vs. HRET GR 92191,July 30, 1991

Facts:
On May 11, 1987, the congressional election of Northern Samar was [Link] the candidate is
herein respondent Jose Ong, Jr. Respondent Ong was proclaimed the duly elected representative
of the second district of Northern Samar. Petitioners questioned the citizenship of respondent Ong
since Ong’s father was only a naturalized Filipino citizen and questioned Ong’s residence
qualificationsince Ong does not own any property in Samar.

ISSUE/s:

1.) Whether the decision of HRET is appealable;

2.) Whether respondent is a citizen of the Philippines; and
3.) WhetherOng is a resident of Samar.

RULING:

1.) Yes. The Constitution explicitly provides that the House of Representatives Electoral Tribunal
(HRET) and the Senate Electoral Tribunal (SET) shall be the sole judges of all contests relating to
the election, returns, and qualifications of their respective members. In the case at bar, the Court
finds no improvident use of power, no denial of due process on the part of the HRET which will
necessitate the exercise of the power of judicial review by the Supreme Court.
2.) Yes. On April 28, 1955, Jose OngChuan, respondent’s father, an immigrant from China was
declared a Filipino citizen by the CFI of Samar. At the time Jose OngChuan took his oath, the
private respondent then is a minor of nine years, was finishing his elementary education in the
 16

province of Samar. Hence, there is no ground to deny the Filipino citizenship of respondent Ong.
Respondent Ong was also born of a natural-born Filipino mother, thus the issue of citizenship is
immaterial.
3.) Yes. The framers of the Constitution adhered to the earlier definition given to the word
residence which regarded it as having the same meaning as domicile. The domicile of origin of the
private respondent, which was the domicile of his parents, is fixed at Laoang, Samar. Contrary to
the petitioners' imputation, Jose Ong, Jr. never abandoned said domicile; it remained fixed therein
even up to the present. Hence, the residency of respondent Ong has sufficiently proved.

WHEREFORE, the petitions are hereby DISMISSED.

Bengzon vs. Senatte Blue Ribbon Committee GR 89914, Nov. 20, 1991

FACTS:
PCGG filed with the Sandiganbayan against Benjamin Romualdez, et al for engaging in devices,
schemes and stratagems to unjustly enrich themselves at the expense of plaintiff and the Filipino
people.
The Senate Minority Floor Leader Enrile delivered a speech before the Senate on the alleged take-
over personal privilege before the Senate on the alleged "takeover of SOLOIL Inc," the FlagShip of
the First Manila Management of Companies or FMMC by Ricardo Lopa and called upon the Senate
to look into the possible violation of the law in the case with regard to RA 3019 (Anti Graft and
Corrupt Practices Act).
The Senate Blue Ribbon Committee (Committee on Accountability of Public Officers [SBRC])
started its investigation on the matter. Petitioners and Ricardo Lopa were subpoenaed by the SBRC
to appear before it and testify on what they know regarding the sale of 36 corporations belonging to
Benjamin Romualdez. Lopa and Bengzon refused to testify, invoking their rights to due process,
and that their testimony may unduly prejudice the defendants and petitioners in case before the
Sandiganbayan.

SBRC rejected the petitioner's plea to be excused from testifying and the SBRC continued its
investigation of the matter.

The petitioners filed for prohibition with a prayer for TRO and/or injunctive relief, claiming that the
SBRC in requiring their attendance and testimony, acted in excess of its jurisdiction and legislative
purpose.
The Supreme Court intervened upon a motion for reconsideration filed by one of the defendants of
the civil case.

ISSUES:
1. Whether or not the court has jurisdiction over the case.
2. Whether or not the SBRC's inquiry has valid legislative purpose.
3. whether or not the civil case of Sandiganbayan is beyond the power of the SBRC to inquire into.
4. Whether or not the inquiry violates the petitioners' right to due process.

RULING:

1. Yes. In Angara vs Electoral Commission, the Constitution provided for an elaborate system of
checks and balances to secure coordination in the workings of the various departments of the
government. The Court has provided that the allocation of constitutional boundaries is a task which
the judiciary must perform under the Constitution. Moreover, as held in a recent case, "(t)he
political question doctrine neither interposes an obstacle to judicial determination of the rival claims.
The jurisdiction to delimit constitutional boundaries has been given to this Court. It cannot abdicate
that obligation mandated by the 1987 Constitution, although said provision by no means does away
with the applicability of the principle in appropriate cases."
The Court is thus of the considered view that it has jurisdiction over the present controversy for the
purpose of determining the scope and extent of the power of the Senate Blue Ribbon Committee to
conduct inquiries into private affairs in purported aid of legislation.

2. No.
The power to conduct formal inquiries or investigations is specifically provided for in Sec. 1 of the
Senate Rules of Procedure Governing Inquiries in Aid of Legislation. Such inquiries may refer to the
 17

implementation or re-examination of any law or in connection with any proposed legislation or the
formulation of future legislation. They may also extend to any and all matters vested by the
Constitution in Congress and/or in the Senate alone.

It appears, therefore, that the contemplated inquiry by respondent Committee is not really "in aid of
legislation" because it is not related to a purpose within the jurisdiction of Congress, since the aim
of the investigation is to find out whether or not the relatives of the President or Mr. Ricardo Lopa
had violated Section 5 RA No. 3019, the "Anti-Graft and Corrupt Practices Act", a matter that
appears more within the province of the courts rather than of the legislature.

3. No. It cannot be said that the contemplated inquiry on the subject of the privilege speech of
Senator Juan Ponce Enrile, i.e., the alleged sale of the 36 (or 39) corporations belonging to
Benjamin "Kokoy" Romualdez to the Lopa Group is to be conducted pursuant to Senate Resolution
No. 212 because, firstly, Senator Enrile did not indict the PCGG, and, secondly, neither Mr. Ricardo
Lopa nor the herein petitioners are connected with the government but are private citizens.

4. Yes. The Constitution expressly provides that "the rights of persons appearing in or affected by
such inquiries shall be respected.
It should be emphasized that the constitutional restriction does not call for the banning or prohibition
of investigations where a violation of a basis rights is claimed. It only requires that in the course of
the proceedings, the right of persons should be respected.
What the majority opinion mandates is a blanket prohibition against a witness testifying at all, simply
because he is already facing charges before the Sandiganbayan. To my mind, the Constitution
allows him to interpose objections whenever an incriminating question is posed or when he is
compelled to reveal his court defenses, but not to refuse to take the witness stand completely.

• Tanada vs. Angara GR 118295, May 2, 1997

Defensor-Santiago vs. Guingona GR 134577, Nov. 18, 1998

FACTS:
During the first regular session of the eleventh Congress Sen. Marcelo B. Fernan was
declared the duly elected President of the Senate. The following were likewise elected:
Senator Ople as president pro tempore, and Sen. Franklin M. Drilon as majority leader.

Senator Tatad thereafter manifested that, with the agreement of Senator Santiago,
allegedly the only other member of the minority, he was assuming the position of minority
leader. He explained that those who had voted for Senator Fernan comprised the
“majority,” while only those who had voted for him, the losing nominee,
belonged to the “minority.”

During the discussion on who should constitute the Senate “minority,” Sen.
Juan M. Flavier manifested that the senators belonging to the Lakas-NUCD-UMDP Party
— numbering seven (7) and, thus, also a minority — had chosen Senator Guingona as
the minority leader. No consensus on the matter was arrived at. The following session
day, the debate on the question continued, with Senators Santiago and Tatad delivering
privilege speeches. On the third session day, the Senate met in caucus, but still failed to
resolve the issue.

On July 30, 1998, the majority leader informed the body chat he was in receipt of a letter
signed by the seven Lakas-NUCD-UMDP senators, stating that they had elected Senator
Guingona as the minority leader. By virtue thereof, the Senate President formally
recognized Senator Guingona as the minority leader of the Senate.

The following day, Senators Santiago and Tatad filed before this Court the subject petition
for quo warranto, alleging in the main that Senator Guingona had been usurping,
unlawfully holding and exercising the position of Senate minority leader, a position that,
according to them, rightfully belonged to Senator Tatad.

ISSUES:
1. Does the Court have jurisdiction over the petition?
2. Was there an actual violation of the Constitution?
 18

3. Was Respondent Guingona usurping, unlawfully holding and exercising the position
of Senate minority leader
4. Did Respondent Fernan act with grave abuse of discretion in recognizing Respondent
Guingona as the minority leader?
HELD:
FIRST ISSUE

The Court initially declined to resolve the question of who was the rightful Senate
President, since it was deemed a political controversy falling exclusively within the domain
of the Senate. Upon a motion for reconsideration, however, the Court ultimately assumed
jurisdiction (1) “in the light of subsequent events which justify its
intervention;” and (2) because the resolution of the issue hinged on the
interpretation of the constitutional provision on the presence of a quorum to hold a
session and therein elect a Senate President(read Avelino vs. Cuenco about the scope of
the Court’s power of judicial review).

The Court ruled that the validity of the selection of members of the Senate Electoral
Tribunal by the senators was not a political question. The choice of these members did
not depend on the Senate’s “full discretionary authority,” but was
subject to mandatory constitutional limitations. Thus, the Court held that not only was it
clearly within its jurisdiction to pass upon the validity of the selection proceedings, but it
was also its duty to consider and determine the issue.

SECOND ISSUE

There was no violation. The Court finds that the interpretation proposed by petitioners
finds no clear support from the Constitution, the laws, the Rules of the Senate or even
from practices of the Upper House. The Constitution mandates that the President of the
Senate must be elected by a number constituting more than one half of all the members
thereof, it however does not provide that the members who will not vote for him shall ipso
facto constitute the “minority,” who could thereby elect the minority leader.
Verily, no law or regulation states that the defeated candidate shall automatically become
the minority leader. While the Constitution is explicit on the manner of electing a Senate
President and a House Speaker, it is, however, dead silent on the manner of selecting the
other officers in both chambers of Congress. All that the Charter says is that “
[e]ach House shall choose such other officers as it may deem
necessary." The method of choosing who will be such other officers is merely a
derivative of the exercise of the prerogative conferred by the aforequoted constitutional
provision. Therefore, such method must be prescribed by the Senate itself, not by this
Court.

THIRD ISSUE
Usurpation generally refers to unauthorized arbitrary assumption and exercise of power
by one without color of title or who is not entitled by law thereto. A quo warranto
proceeding is the proper legal remedy to determine the right or title to the contested public
office and to oust the holder from its enjoyment. The action may be brought by the
solicitor general or a public prosecutor or any person claiming to be entitled to the public
office or position usurped or unlawfully held or exercise by another.

In order for a quo warranto proceeding to be successful, the person suing must show that
he or she has a clearright to the contested office or to use or exercise the functions of the
office allegedly usurped or unlawfully held by the respondent. In this case, petitioners
present not sufficient proof of a clear and indubitable franchise to the office of the Senate
minority leader. Furthermore, no grave abuse of discretion has been shown to
characterize any of his specific acts as minority leader.

FOURTH ISSUE
Grave abuse of discretion - such capricious or whimsical exercise of judgment as is
equivalent to lack of jurisdiction. The abuse of discretion must be patent and gross as to
amount to an evasion of positive duty or a virtual refusal to perform a duty enjoined by
law, or to act at all in contemplation of law as where the power is exercised in an arbitrary
 19

and despotic manner by reason of passion and hostility.

By the above standard, we hold that Respondent Fernan did not gravely abuse his
discretion as Senate President in recognizing Respondent Guingona as the minority
leader. To recall, the latter belongs to one of the minority parties in the Senate, the Lakas-
NUCD-UMDP. By unanimous resolution of the members of this party that he be the
minority leader, he was recognized as such by the Senate President. Such formal
recognition by Respondent Fernan came only after at least two Senate sessions and a
caucus, wherein both sides were liberally allowed to articulate their standpoints.

Therefore, the Senate President cannot be accused of capricious or whimsical exercise of

judgment or of an arbitrary and despotic manner by reason of passion or hostility. Where
no provision of the Constitution, the laws or even the rules of the Senate has been clearly
shown to have been violated, disregarded or overlooked, grave abuse of discretion cannot
be imputed to Senate officials for acts done within their competence and authority.

PRINCIPLE OF NON-DELEGATION OF POWERS

OØ General rule is non-delegation
• Potestas Delegata Non Potest Delegare
states that “no delegated powers can be further delegated.” It is also known as delegatus non
potest delegare which means “one to whom power is delegated cannot himself further delegate that
power.” One who has the power or authority from another to do an act must do it himself/herself as
this is a trust or confidence reposed in that person personally. It cannot be assigned to stranger
whose ability and intergrity might not be known to the principal.
• Jaworski vs. PAGCOR, GR 144463, Jan. 14, 2004
Facts: PAGCOR is a government owned and controlled corporation existing under PD 1869, issued
on 11 July 1983 by then President Ferdinand Marcos. The PAGCOR was granted, subject to the
terms and conditions established in theDecree, for a period of 25 years, renewable for another 25
years, the rights, privileges and authority to operate and maintain gambling casinos, clubs, and
other recreation or amusement places, sports, gaming pools, i.e. basketball,football, lotteries, etc.
whether on land or sea, within the territorial jurisdiction of the Republic of the Philippines. On
31March 1998, PAGCOR¶s board of directors approved an instrument denominated as "Grant of
Authority and Agreement for the Operation of Sports Betting and Internet Gaming", which granted
SAGE the authority to operate and maintainSports Betting station in PAGCOR¶s casino locations,
and Internet Gaming facilities to service local and international bettors, provided that to the
satisfaction of PAGCOR, appropriate safeguards and procedures are established to ensurethe
integrity and fairness of the games. On 1 September 1998, PAGCOR, represented by its
Chairperson, Alicia [Link], and SAGE, represented by its Chairman of the Board, Henry Sy, Jr.,
and its President, Antonio D. Lacdao,executed the document. Pursuant to the authority granted by
PAGCOR, SAGE commenced its operations by conducting gambling on the Internet on a trial-run
basis, making pre-paid cards and redemption of winnings available at various Bingo Bonanza
outlets. Senator Robert S. Jaworski, in his capacity as member of the Senate and Chairman of the
Senate Committee on Games, Amusement and Sports, files the petition for certiorari and
prohibition, praying that the grant of authority by PAGCOR in favor of SAGE be nullified. He
maintains that PAGCOR committed grave abuse of discretion amounting to lack or excess of
jurisdiction when it authorized SAGE to operate gambling on the internet. Hecontends that
PAGCOR is not authorized under its legislative franchise, P.D. 1869, to operate gambling on the
internet for the simple reason that the said decree could not have possibly contemplated internet
gambling since at the time of its enactment the internet was yet inexistent and gambling activities
were confined exclusively to real-space. Further,he argues that the internet, being an international
network of computers, necessarily transcends the territorial jurisdiction of the Philippines, and the
grant to SAGE of authority to operate internet gambling contravenes thelimitation in PAGCOR¶s
[Link]: Whether PAGCOR¶s legislative franchise include the right to vest another entity,
SAGE, with the authority tooperate Internet [Link]: A legislative franchise is a special
privilege granted by the state to corporations. It is a privilege of public concernwhich cannot be
exercised at will and pleasure, but should be reserved for public control and administration, either
by the government directly, or by public agents, under such conditions and regulations as the
government may impose onthem in the interest of the public. It is Congress that prescribes the
conditions on which the grant of the franchise may be made. Thus the manner of granting the
franchise, to whom it may be granted, the mode of conducting the business,the charter and the
quality of the service to be rendered and the duty of the grantee to the public in exercising
thefranchise are almost always defined in clear and unequivocal language. Herein, PAGCOR has
acted beyond the limits of its authority when it passed on or shared its franchise to SAGE. While
 20

PAGCOR is allowed under its charter to enter into operator¶s and/or management contracts, it is
not allowed under the same charter to relinquish or share itsfranchise, much less grant a veritable
franchise to another entity such as SAGE. PAGCOR can not delegate its power inview of the legal
principle of delegata potestas delegare non potest, inasmuch as there is nothing in the charter to
show that it has been expressly authorized to do so.
• Belgica vs. Ochoa, GR 208566, Nov. 19, 2013 (note: case
involves various issues, but focus only on issue about “nondelegability
of legislative power”)
OØ Not absolute, because there are exceptions (PERMISSIBLE
DELEGATIONS) – take note of the permissible delegations!
Chapter 7- Delegation of Powers
•Corollary to the doctrine of separation of powers is the principle of non-delegation of powers.
•Potestas delegata non delegari potest- What has been delegated cannot be delegated
•Such delegated power constitutes not only a right but a duty to be performed by the delegate
through the instrumentality of his own judgment and notthrough the intervening mind of another.
•The principle of non-delegation of powers is applicable to all the three major powers of the
government but is especially important in the case of thelegislative power because of the many
instances when its delegation is permitted.
Permissible Delegation
•Delegation of tariff powers to the President.
oSection 28(2). The Congress may by law authorize the President to fix within specified limits, and
subject to such limitations andrestrictions as it may impose, tariff rates, import and export quotas,
tonnage and wharfage dues, and other duties or imposts, within theframework of the national
development program of the Government.
oReason for the delegation: The necessity, not to say expediency, of giving the Chief Executive the
authority to act immediately on certainmatters affecting the national economy lest delay result in
hardship to the people.
•Delegation of emergency powers to the President.
oSection 23(2). In times of war or other national emergency, the Congress may by law authorize the
President, for a limited period andsubject to such restrictions as it may prescribe, to exercise
powers necessary and proper to carry out a declared national policy. Unlesssooner withdrawn by
resolution of the Congress, such powers shall cease upon its next adjournment.”
oWhen emergency powers are delegated to the President, he becomes in effect a constitutional
dictator.
oConditions for the vesture of emergency powers in the President are the following:
There must be a war or other national emergency.
The delegation must be for a limited period only.
The delegation must be subject to such restrictions as the Congress may prescribe.
The emergency powers must be exercised to carry out a national policy declared by the
Congress.
oOther national emergency” may include rebellion, economic crisis, pestilence or epidemic,
typhoon, flood or other similar catastrophe of nation-wide proportions or effect.
oConferment of emergency powers on the President is NOT MANDATORY on the Congress.
oThe emergency does not automatically confer emergency powers on the President.
•Delegation to the people at large.
oReferendum- a method of submitting an important legislative measure to a direct vote of the whole
people.
oPlebiscite
- a device to obtain a direct popular vote on a matter of political importance, but chiefly in order to
create a some more or less permanent political condition.
•Delegation to the local government.
oBased on the recognition that local legislatures are more knowledgeable than the national
lawmaking body on matters of purely localconcern and are therefore in a better position to enact the
necessary and appropriate legislation thereon.
oLocal affairs managed by local authorities and General affairs by the central authority.
•Delegation to administrative body.
oWith this power administrative bodies may implement the broad policies laid down in a statute by
“filling in” the details which the Congressmay not have the opportunity or competence to provide.
oThis is effected by their promulgation of what are know as SUPPLEMENTARY REGULATIONS.
oThey may also issue contingent regulations pursuant to a delegation of authority to determine
some fact or state of things upon which theenforcement of law depends. In other words, they are
allowed to ascertain the existence of particular contingencies and on the basis thereof enforce or
suspend the operation of a law.
 21

Tests of Delegation
Question of whether or not the delegation has been validly made.
oCompleteness Test
The law must be complete in all its essential terms and conditions when it leaves the legislature
so that there will be nothing leftfor the delegate to do when it reaches him except to enforce it.
If there are gaps in the law that will prevent its enforcement unless they are first filed, the delegate
will then have been given theopportunity to step into the shoes of the legislature and to exercise a
discretion essentially legislative in order to repair theomission. This is INVALID DELEGATION.
oSufficient Standard Test
It is intended to map out the boundaries of the delegate’s authority by defining the legislative
policy and indicating thecircumstances under which it is to be pursued and effected.
PURPOSE: to prevent a total transference of legislative power from the lawmaking body to the
delegate.

OØ Tests of Delegation
1. Again, general rule is, there is non-delegation of powers;
2. But there are exceptions, where powers can be permissibly delegated;
3. Assuming it falls under the exception, you still have to determine whether these exceptions
(permissible delegations) has been validly made;
4. To be valid, delegation itself must be circumscribed by legislative restrictions (otherwise,
delegation is tantamount to abdication of
legislative authority, a total surrender by legislature of its prerogatives in favor of the delegate);
- COMPLETENESS TEST
o People vs. Dacuycuy, G.R. L-45127, May 5, 1989
Facts:
Private respondents were charged with violation of RA 4670 (Magna Carta for Public School
Teachers. They also charged constitutionality of Sec.32 (…be punished by a fine of not less than
P100 nor more than P1000, or by imprisonment, in the discretion of the court.) of said R.A on
grounds that it a.) imposes a cruel and unusual punishment, b.) constitutes an undue delegation of
legislative power. Judge Dacuycuy ruled that the said section is a matter of statutory construction
and not an undue of delegation of legislative power.
Issue:
W/N Sec. 6 constitutes undue delegation of legislative power and is valid.
Held:
NOT VALID! The duration of penalty for the period of imprisonment was left for the courts to
determine as if the judicial department was a legislative dep’t. The exercise of judicial power not an
attempt to use legislative power or to prescribe and create a law but is an instance of the admin. of
justice and the app. of existing laws to the facts of particular cases. Said section violates the rules
on separation of powers and non-delegability of legislative powers
People vs Dacuycuy
GR No. 45127 May 5, 1989

FACTS: several pubic school officials of Leyte were charged for violation of RA 4670 (Magna Carta
for public school teachers).These officials motioned to quash the charges against them for (1)lack
of jurisdiction (2) unconstitutionality of Section 32. This motion was denied for lack of merit. The
private respondents filed a petition for certiorari to the Court of First Instance of [Link] added
to the grounds of unconsttutionality of Section 32 the following reasons: (1) it imposes a cruel and
unusual punishment (2) it constitutes an undue delegation of legislative power, for the duration of
penalty of the imprisonment is left to the discretion of the court. Judge Dacuycuy, the respondent
judge denied the motion saying that RA 4670 particularly Section 32 is valid and constitutional.

ISSUE: Whether or not Section 32 of RA 4670 is constitutional

HELD: NO. Section 32 is unconstitutional since it provides an indeterminable period of

imprisonment. Too much discretion was left by the legislature to the court, making it undue
delegation of power of the legislature. Section 32 did not pass the test of sufficient standard. If
section 32 will be allowed, it will violate not just the rules of separation of powers but also the
delegability of legislative powers.

Nota Bene: The charge against the public school officials will still be remanded to the municipal
court where it was first filed. RA 4670 ontains a separability clause in Section 34. Although Sec 32
was declared unconstitutional, other parts are still valid.
 22

- SUFFICIENCY STANDARD TEST

o Chiongbian vs. Orbos GR 96754, June 22, 1995

G.R. No. 96754 June 22, 1995CHIONGBIAN, [Link]. v. ORBOS [Link]:

Pursuant to the Constitution, Congress passed R.A 6734, the Organic Act for the Autonomous
Region in MuslimMindanao calling for a plebiscite to create an autonomous region. The provinces
of Lanao del Sur, Maguindanao,Sulu and Tawi-Tawi, which voted for the creation of such region
were later on known as the Autonomous Region inMuslim Mindanao. Consistent with the authority
granted by Article XIX, Section 13 of RA 6734 which authorizesthe President to merge the existing
regions, President Corazon Aquino issued E.O No. 429 providing for theReorganization of the
Administrative Regions in [Link] contend that Art. XIX, Section 13 of R.A. No. 6734
is unconstitutional because it unduly delegateslegislative power to the President by authorizing him
to merge by administrative determination the existing regionsor at any rate provides no standard for
the exercise of the power delegated and that the power granted is notexpressed in the title of the
[Link] libraryThey also challenge the validity of E.O. No. 429 on the ground that the power granted
by RA 6734 to the Presidentis only to merge regions IX and XII but not to reorganize the entire
administrative regions in Mindanao and certainlynot to transfer the regional center of Region IX
from Zamboanga City to Pagadian City.
ISSUE:
Whether or not the R.A 6734 is invalid because it contains no standard to guide the President’s
discretion.
HELD:
No, in conferring on the President the power to merge by administrative determination the existing
regionsfollowing the establishment of the Autonomous Region in Muslim Mindanao, Congress
merely followed the patternset in previous legislation dating back to the initial organization of
administrative regions in 1972. The choice of thePresident as delegate is logical because the
division of the country into regions is intended to facilitate not only theadministration of local
governments but also the direction of executive departments which the law requires shouldhave
regional offices. While the power to merge administrative regions is not expressly provided for in
theConstitution, it is a power which has traditionally been lodged with the President to facilitate the
exercise of the power of general supervision over local governments. (Abbas v. COMELEC) The
regions themselves are notterritorial and political divisions like provinces, cities, municipalities and
barangays but are "mere groupings of contiguous provinces for administrative purposes. The power
conferred on the President is similar to the power toadjust municipal boundaries which has been
described as "administrative in nature.” (Pelaez v. Auditor General)Thus, the regrouping is done
only on paper. It involves no more than are definition or redrawing of the linesseparating
administrative regions for the purpose of facilitating the administrative supervision of local
governmentunits by the President and insuring the efficient delivery of essential services

o Gerochi vs. Department of Energy GR 159796, July 17,

2007

Facts: RA 9136, otherwise known as the Electric Power Industry Reform Act of 2001 (EPIRA),
which sought to impose a universal charge on all end-users of electricity for the purpose of funding
NAPOCOR’s projects, was enacted and took effect in 2001.

Petitioners contest the constitutionality of the EPIRA, stating that theimposition of the universal
charge on all end-users is oppressive and confiscatory and amounts to taxation without
representation for not giving the consumers a chance to be heard and be represented.

Issue: Whether or not the universal charge is a tax.

Held: NO. The assailed universal charge is not a tax, but anexaction in the exercise of the State’s
police power. That public welfare is promoted may be gleaned from Sec. 2 of the EPIRA, which
enumerates the policies of the State regarding electrification. Moreover, the Special Trust Fund
feature of the universal charge reasonably serves and assures the attainment and perpetuity of the
purposes for which the universal charge is imposed (e.g. to ensure the viability of the country’s
electric power industry), further boosting the position that the same is an exaction primarily in
pursuit of the State’s police objectives

If generation of revenue is the primary purpose and regulation ismerely incidental, the imposition is
a tax; but if regulation is the primary purpose, the fact that revenue is incidentally raised does not
make the imposition a tax.
 23

The taxing power may be used as an implement of police power. The theory behind the exercise of
the power to tax emanates from necessity; without taxes, government cannot fulfill its mandate of
promoting the general welfare and well-being of the people.
Delegation of Powers
Department Secretary alter ego of Congress.

Congress delegated the power of ascertainment of facts upon which the enforcement and
administration of the increase rate under the law is contingent to the Secretary of Finance. The
legislature has made the operation of the 12% rate effective January 1, 2006 contingent upon a
specified fact or condition. It leaves the entire operation or non-operation of the 12% rate upon
factual matters outside the control of the executive. No discretion would be exercised by the
President.

In making his recommendation to the President on the existence of either of the two conditions, the
Secretary of Finance is not acting as the alter ego of the President or even her subordinate. In such
instance, he is not subject to the power of control and direction of the President. He is acting as the
agent of the legislative department, to determine and declare the event upon which its expressed
will is to take effect. The Secretary becomes the means or tool by which legislative policy is
determined and implemented, considering that he possesses all the facilities to gather data and
information and has a much broader perspective to properly evaluate them. His personality in such
instance is in reality but a projection of that of Congress. Thus, being the agent of Congress and not
of the President, the President cannot alter or modify or nullify, or set aside the findings of the
Secretary and to substitute the judgment of the former for that of the latter. Congress simply
granted the Secretary the authority to ascertain the existence of a fact. If it is exists, the Secretary,
by legislative mandate, must submit such information to the President who must impose the 12%
VAT rate. There is no undue delegation of legislation power but only of the discretion as to the
execution of a law. This is constitutionally permissible. (Abakada Guro Party List, etc., et al. vs.
Executive Secretary, G.R. No. 168056, and other cases, September 1, 2005).

Q — Section 34 of RA 9136, otherwise known as the “Electric Power Industry Reform Act of
200_” (EPIRA) imposes Universal Charge upon end-users of electricity (a charge imposed for the
recovery of stranded cost; stranded debts refer to any unpaid financial obligations of the NPC which
has not been liquidated by the proceeds from the sales and privatization of NPC Assets; stranded
contract costs of NPC or distribution utility refer to the excess of the contract cost of electricity under
eligible contracts over the actual selling price of the contracted energy output of such contracts in
the market.

ERC issued its Implementing Rules and Regulations defining Universal Charge refers to the
charge, if any, imposed for the recovery of Stranded Debts, Stranded Contract Costs of NPC and
Stranded Contract Costs of Eligible Contracts of Distribution Utilities and other purposes pursuant
to Section 34 of the EPIRA. (Rule 4 (rrr, IRR).

National Power Corporation-Strategic Power Utilities Group (NPC-SPUG) filed with Energy
Regulatory Commission (ERC) a petition for the availment from the Universal Charge of its share
for Missionary Electrification.

The ERC decided the NPC’s petition authorizing it to draw up to P70, 000, 000.00 from
PSALM for its 2003 Watershed Rehabilitation Budget subject to the availability of funds for the
Environmental Fund component of the Universal Charge.

On the basis of the said ERC decisions, Panay Electric Company, Inc. (PECO) charged
Romeo P. Gerochi and all other end-users with the Universal Charge as reflected in their respective
electric bills starting from the month of July 2003.

Hence, this original action.

Petitioners submit that the assailed provision of law and its IRR which sought to implement
the same are unconstitutional on the following grounds:

1. The universal charge provided for under Section 34 of the EPIRA and sought to be
implemented under Sec. 2, Rule 18 of the IRR of the said law is a tax which is to be collected from
all electric end-users and self-generating entities. The power to tax is strictly a legislative function
 24

and as such, the delegation of said power to any executive or administrative agency like the ERC is
unconstitutional, giving the same unlimited authority. The assailed provision clearly provides that
the Universal Charge is to be determined, fixed and approved by the ERC, hence leaving to the
latter complete discretionary legislative authority.
2. The ERC is also empowered to approve and determine where the funds collected should
be used.
3. The imposition of the Universal Charge on all end-users is oppressive and confiscatory
and amounts to taxation without representation as the consumers were not given a chance to be
heard and represented.

Petitioners contend that the Universal Charge has the characteristics of a tax and is collected to
fund the operations of the NPC. They argue that the cases Osmeña v. Orbos, G.R. No. 99886,
March 31, 1993, 220 SCRA 703;Valmonte v. Energy Regulatory Board, G.R. Nos. L-79601-03,
June 23, 1988, 162 SCRA 521; and Gaston v. Republic Planters Bank, L-77194, March 15, 1988,
158 SCRA 626, invoked by the respondents clearly show the regulatory purpose of the charges
imposed therein, which is not so in the case at bench. In said cases, the respective funds were
created in order to balance and stabilize the prices of oil and sugar, and to act as buffer to
counteract the changes and adjustments in prices, peso devaluation, and other variables which
cannot be adequately and timely monitored by the legislature. Thus, there was a need to delegate
powers to administrative bodies. They posited that the Universal Charge is imposed not for a similar
purpose.

The ultimate issues in the case at bar are:

1. Whether or not, the Universal Charge imposed under Sec. 34 of the EPIRA is a tax; and
2. Whether or not there is undue delegation of legislative power to tax on the part of the
ERC.

Decide.

ANS: 1. As to the first issue.

No, the Universal Charge is not a tax. In exacting the said charge through Sec. 34 of the
EPIRA, the State’s police power, particularly its regulatory dimension, is invoked. Such can be
deduced from Sec. 34 which enumerates the purposes for which the Universal Charge is imposed,
and which can be amply discerned as regulatory in character.

Moreover, it is a well-established doctrine that the taxing power may be used as an implement of
police power. (Osmeña v. Orbos, Gaston v. Republic Planters Bank, Tio v. Videogram Regulatory
Board, No. L-75697, 151 SCRA 208, 216, and Lutz v. Araneta, 98 Phil. 148 (1955)). In Valmonte v.
Energy Regulatory Board, et al. and in Gaston v. Republic Planters Bank, it was held that the Oil
Price Stabilization Fund (OPSF) and the Sugar Stabilization Fund (SSF) were exactions made in
exercise of the police power. The doctrine was reiterated in Osmeña v. Orbos, with respect to the
OPSF.

With the Universal Charge, a Special Trust Fund (STF) is also created under the administration of
PSALM.

As aptly pointed out by the OSG, evidently, the establishment and maintenance of the Special Trust
Fund, under the last paragraph of Section 34, R.A. No. 9136, is well within the pervasive and non-
waivable power and responsibility of the government to secure the physical and economic survival
and well-being of the community, that comprehensive sovereign authority we designate as the
police power of the State.

This feature of the Universal Charge further boosts the position that the same is an exaction
imposed primarily in the pursuit of the State’s police objectives. The STF reasonably serves and
assures attainment and perpetuity of the purposes for which the Universal Charge is imposed, i.e.,
to ensure the viability of the country’s electric power industry. (Gerochi, et al. v. Dept. of Energy, et
al., G.R. No. 159796, July 17, 2007, Nachura, J).

2. As to the second issue.

 25

No, there is no undue delegation of powers to the ERC. The EPIRA, read and appreciated
in its entirety, in relation to Sec. 34 thereof, is complete in all its essential terms and conditions, and
it contains sufficient standards.

Although Sec. 34 of the EPIRA merely provides that within one (1) year from the effectivity
thereof, a Universal Charge to be determined, fixed and approved by the ERC, shall be imposed on
all electricity end-users, and therefore, does not state the specific amount to be paid as Universal
Charge, the amount nevertheless is made certain by the legislative parameters provided by the law
itself when it provided for the promulgation and enforcement of a National Grid Code, and a
Distribution Code.

This is also the case when the EPIRA law authorized the PSALM to compute the stranded
debts and stranded costs of the NPC which is to form the basis of the ERC in determining its
universal charge.

As to the second test, the Court had, in the past, accepted as sufficient standards the
following: “interest of law and order;” “adequate and efficient instruction;” “public interest;” “justice
and equity;” “public convenience and welfare;” “simplicity, economy and efficiency;” “standardization
and regulation of medical education;” and “fair and equitable employment practices.” Provisions of
the EPIRA such as, among others, “to ensure the total electrification of the country and the quality,
reliability, security and affordability of the supply of electric power”, and “watershed rehabilitation
and management” meet the requirements for valid delegation, as they provide the limitations on the
ERC’s power to formulate the IRR. These are sufficient standards. (Gerochi, et al. v. Dept. of
Energy, et al., G.R. No. 159796, July 17, 2007, Nachura, J).

Note:
It may be noted that this is not the first time that the ERC’s conferred powers were
challenged. In Freedom from Debt Coalition v. Energy Regulatory Commission, G.R. No. 161113,
June 15, 2004, 432 SCRA 157, it has been held:

“In determining the extent of powers possessed by the ERC, the provisions
of the EPIRA must not be read in separate parts. Rather, the law must be read in its entirely,
because a statute is passed as a whole, and is animated by one general purpose and intent. Its
meaning cannot to be extracted from any single part thereof but from a general consideration of the
statute as a whole. Considering the intent of Congress in enacting the EPIRA and reading the
statute in its entirety, it is plain to see that the law has expanded the jurisdiction of the regulatory
body, the ERC in this case, to enable the latter to implement the reforms sought to be accomplished
by the EPIRA. When the legislators decided to broaden the jurisdiction of the ERC, they did not
intend to abolish or reduce the powers already conferred upon ERC’s predecessors. To sustain the
view that the ERC possess only the powers and functions listed under Section 43 of the EPIRA is to
frustrate the objectives of the law.

Chief Justice Reynato S. Puno described the immensity of police power in relation to the
delegation of powers to the ERC and its regulatory functions over electric power as a vital public
utility, to wit:

Over the years, however, the range of police power was no longer limited to
the preservation of public health, safety and morals, which used to be the primary social interests in
earlier times. Police power now requires the State to “assume an affirmative duty to eliminate the
excesses and injustices that are the concomitants of an unrestrained industrial economy.” Police
power is not exerted “to further the public welfare – a concept as vast as the good of society itself.”
When the police power is delegated to administrative bodies with regulatory functions, its exercise
should be given a wide latitude. Police power takes on an even broader dimension in developing
countries such as ours, where the State must take a more active role in balancing the many
conflicting interests in society. The Questioned Order was issued by the ERC, acting as an agent of
the State in the exercise of police power. We should have exceptionally good grounds to curtail its
exercise. This approach is more compelling in the field of rate-regulation of electric power rates.
Electric power generation and distribution is a traditional instrument of economic growth that affects
not only a few but the entire nation. It is an important factor in encouraging investment and
promoting business. The engines of progress may come to a screeching halt if the delivery of
electric power is impaired. Billions of pesos would be lost as a result of power outrages or unreliable
electric power services. The State thru the ERC should be able to exercise its police power with
great flexibility, when the need arises.
 26

This was reiterated in National Association of Electricity Consumers for Reforms v. Energy
Regulatory Commission, G.R. No. 163935, February 2, 2006, 481 SCRA 480, where it was held
that the ERC, as regulator, should have sufficient power to respond in real time to changes wrought
by multifarious factors affecting public utilities.

From the foregoing disquisitions, we there fore hold there is no undue delegation of
legislative power to the ERC.

Petitioners failed to pursue in their Memorandum the contention in the Complaint that the
imposition of the Universal Charge on all end-users is oppressive and confiscatory, and amounts to
taxation without representation. Hence, such contention is deemed waived or abandoned per
Resolution of August 3, 2004. Moreover, the determination of whether or not a tax is excessive,
oppressive or confiscatory is an issue which essentially involves questions of fact, and thus, the
Court is precluded from reviewing the same.

Note:
One of the landmark pieces of legislation enacted by Congress in recent years is the
EPIRA. It established a new policy, legal structure and regulatory framework for the electric power
industry. The new thrust is to tap private capital for the expansion and improvement of the industry
as the large government debt and the highly capital-intensive character of the industry itself have
long been acknowledged as the critical constraints to the program. To attract private investment,
largely foreign, the jaded structure of the industry had to be addressed. While the generation and
transmission sectors were centralized and monopolistic, the distribution side was fragmented with
over 10 utilities, mostly small and uneconomic. The pervasive flaws have caused a low utilization of
existing generation capacity; extremely high and uncompetitive power rates; poor quality of service
to consumers; dismal to forgettable performance of the government power sector; high system
losses; and an inability to develop a clear strategy for overcoming these shortcomings.

Thus, the EPIRA provides a framework for the restructuring of the industry, including the
privatization of the assets of the National Power Corporation (NPC), the transition to a competitive
structure, and the delineation of the roles of various government agencies and the private entities.
The law ordains the division of the industry into four (4) distinct sectors, namely: generation,
transmission, distribution and supply. Corollarily, the NPC generating plants have to privatized and
its transmission business spun off and privatized thereafter. (Freedom from Debt Coalition v. ERC,
G.R. No. 161113, June 15, 2004, 432 SCRA 157).
OØ Principle of Sub-delegation of powers
1. Transmission of power from head of agency to his subordinates for
purposes of expediency and achieving maximum efficiency in public
service
2. Example is DOCTRINE OF QUALIFIED POLITICAL AGENCY
DOCTRINE OF QUALIFIED POLITICAL AGENCY
Doctrine of qualified political agency or alter ego principle means that the acts of the secretaries of
the Executive departments performed and promulgated in the regular course of business are
presumptively the acts of the Chief Executive. (Villena v. Secretary of the Interior, G.R. No. L46570,
April 21, 1939)
EXCEPTIONS:
1. In cases wherein the Chief Executive is required by the Constitution or by the law to act in person
or
2. the exigencies of the situation demand that he act personally, the multifarious executive and
administrative functions of the Chief Executive are performed by and through the executive
departments.
All the different executive and administrative organizations are mere adjuncts of the executive
department. This is an adjunct of the Doctrine of Single Executive.
The heads of the various executive departments are assistants and agents of the Chief Executive.
[Villena v. Sec. of Interior (1939)]
In the case of Abakada Guro v. Executive Secretary, G.R. No. 168056, Sept. 1, 2005, the SC held
that the Secretary of Finance can act as an agent of the Legislative Dept. to determine and declare
the event upon which its expressed will is to take effect. Thus, being the agent of Congress and not
of the President, the latter cannot alter, or modify or nullify, or set aside the findings of the Secretary
of Finance and to substitute the judgment of the former for that of the latter.
REASON:
 27

Since the President is a busy man, he is not expected to exercise the totality of his power of control
all the time. He is not expected to exercise all his powers in person. He is expected to delegate
some of them to men of his confidence, particularly to members of his Cabinet.
• President delegate certain powers to members of cabinet, who
are his alter egos;
• Villena vs. Secretary of the Interior, GR L-46570, April 21,
1939
FACTS:
Division of Investigation of the DOJ, upon the request of the Secretary of the Interior, conducted an
inquiry into the conduct of the Villena, mayor of Makati, Rizal, as a result of which the latter was
found to have committed bribery, extortion, malicious abuse of authority ad unauthorized practice of
the law profession. The respondent recommended the suspension of Villena to the President of the
Philippines, in which it was verbally granted. The Secretary then suspended Villena from office.
Villena filed a petition for preliminary injunction against the Sec. to restrain him and his agents from
proceeding with the investigation.

ISSUE:
Whether or not the Secretary of the Interior has jurisdiction or authority to suspend and order
investigation over Villena.

RULING:
The Secretary of Interior has the power to order investigation and to suspend Mayor Villena. As to
the power to order investigation, it was provided in Section 79 (C) of RAC that Department of
Interior was given the authority to supervise bureaus and offices under its jurisdiction. This was
interpreted in relation to Section 86 of the same Code which granted the said Department of
executive supervision over administration of provinces, municipalities and other political
subdivisions. This supervision covers the power to order investigation because supervision “implies
authority to inquire into facts and conditions in order to render power real and effective.”However,
unlike this power to order investigation, the power to suspend a mayor was not provided in any law.
There was no express grant of authority to the Secretary of Interior to suspend a Mayor.
Nevertheless, Section 2188 of the Administrative Code granted the provincial governor the power of
suspension. Yet this did not mean that the grant precluded the Secretary of Interior.

The Doctrine of Qualified Political Agency which provides that “the acts of the department
secretaries, performed and promulgated in the regular course of business, are, unless disapproved
or reprobated by the President, presumptively the acts of the President.” The power to suspend
may be exercised by the President. It follows that the heads of the Department under her may also
exercise the same, unless the law required the President to act personally or that situation
demanded him so, because the heads of the departments are assistants and agents of the
President.

Held:

Section 79 (C) of the Administrative Code provides as follows:

The Department Head shall have direct control, direction, and supervision over all bureaus and
offices under his jurisdiction and may, any provision of existing law to the contrary notwithstanding,
repeal or modify the decisions of the chiefs of said bureaus of offices when advisable in the public
interest.

The Department Head may order the investigation of any act conduct of any person in the service
of any bureau of office under his department and in connection therewith may appoint a committee
or designate an official or person who shall conduct such investigations, and such committee,
official, or person may summon, witness by subpoena and subpoena duces tecum, administer oath
and take testimony relevant to the investigation.

The above section speaks, it is true, of direct control, direction, and supervision over bureaus and
offices under the jurisdiction of the Secretary of the Interior, but this section should be interpreted in
relation to section 86 of the same Code which grants to the Department of the Interior “executive
supervision over the administration of provinces, municipalities, chartered cities and other local
political subdivisions.” Therefore, the Secretary of the Interior is invested with authority to order the
investigation of the charges against the petitioner and to appoint a special investigator for that
purpose.
 28

Administrative Code which provides that “The provincial governor shall receive and investigate
complaints made under oath against municipal officers for neglect of duty, oppression, corruption or
other form of maladministration of office, and conviction by final judgment of any crime involving
moral turpitude. For minor delinquency he may reprimand the offender; and if a more severe
punishment seems to be desirable he shall submit written charges touching the matter to the
provincial board, furnishing a copy of such charges to the accused either personally or by registered
mail, and he may in such case suspend the officer (not being the municipal treasurer) pending
action by the board, if in his opinion the charge be one affecting the official integrity of the officer in
question. Where suspension is thus effected, the written charges against the officer shall be filed
with the board within five days.” The fact, however, that the power of suspension is expressly
granted by section 2188 of the Administrative Code to the provincial governor does not mean that
the grant is necessarily exclusive and precludes the Secretary of the Interior from exercising a
similar power.

The suspension of the petitioner should be sustained on the principle of approval or ratification of
the act of the Secretary of the Interior by the President of the Philippines.

Under the presidential type of government which we have adopted and considering the
departmental organization established and continued in force by paragraph 1, section 12, Article
VII, of our Constitution, all executive and administrative organizations are adjuncts of the Executive
Department, the heads of the various executive departments are assistants and agents of the Chief
Executive, and except in cases where the Chief Executive is required by the Constitution or the law
to act in person or the exigencies of the situation demand that he act personally, the multifarious
executive and administrative functions of the Chief Executive are performed by and through the
executive departments, and the acts of the secretaries of such departments, performed and
promulgated in the regular course of business, are, unless disapproved or reprobated by the Chief
Executive, presumptively the acts of the Chief Executive.
 29

MANILA PRINCE HOTEL v. GOVERNMENT SERVICE INSURANCE SYSTEM, GR No.

122156, 1997-02-03
Facts:
The controversy arose when respondent Government Service Insurance System
(GSIS), pursuant to the privatization program of the Philippine Government under
Proclamation No. 50 dated 8 December 1986, decided to sell through public bidding
30% to 51% of the issued and outstanding... shares of respondent MHC. The
winning bidder, or the eventual "strategic partner," is to provide management
expertise and/or an international marketing/reservation system, and financial
support to strengthen the profitability and performance of the Manila Hotel.[2] In a
close bidding held on 18 September 1995 only two (2) bidders participated:
petitioner Manila Prince Hotel Corporation, a Filipino corporation, which offered to
buy 51% of the MHC or 15,300,000 shares at P41.58 per share, and Renong
Berhad, a Malaysian firm,... with ITT-Sheraton as its hotel operator, which bid for
the same number of shares at P44.00 per share, or P2.42 more than the bid of
petitioner.
Pending the declaration of Renong Berhard as the winning bidder/strategic partner
and the execution of the necessary contracts, petitioner in a letter to respondent
GSIS dated 28 September 1995 matched the bid price of P44.00 per share tendered
by Renong Berhad.[4] In a subsequent letter dated 10 October 1995 petitioner sent
a manager's check issued by Philtrust Bank for Thirty-three Million Pesos
(P33,000,000.00) as Bid Security to match the bid of the Malaysian Group, Messrs.
Renong Berhad which respondent GSIS refused to accept.
On 17 October 1995, perhaps apprehensive that respondent GSIS has disregarded
the tender of the matching bid and that the sale of 51% of the MHC may be
hastened by respondent GSIS and consummated with Renong Berhad, petitioner
came to this Court on prohibition and mandamus. On
18 October 1995 the Court issued a temporary restraining order enjoining
respondents from perfecting and consummating the sale to the Malaysian firm.
In the main, petitioner invokes Sec. 10, second par., Art. XII, of the 1987
Constitution and submits that the Manila Hotel has been identified with the Filipino
nation and has practically become a historical monument which reflects the
vibrancy of Philippine heritage and... culture. It is a proud legacy of an earlier
generation of Filipinos who believed in the nobility and sacredness of independence
and its power and capacity to release the full potential of the Filipino people. To all
intents and purposes, it has become a part of the national... patrimony.
Issues:
that Sec. 10, second par., Art. XII, of the 1987 Constitution is clearly not self-
executing... that the non-self-executing nature of Sec. 10, second par., of Art. XII is
implied from the tenor of the first and third paragraphs of the same section which
undoubtedly are not self-executing.
Ruling:
The argument is flawed. If the first... and third paragraphs are not self-executing
because Congress is still to enact measures to encourage the formation and
operation of enterprises fully owned by Filipinos, as in the first paragraph, and the
State still needs legislation to regulate and exercise authority over... foreign
investments within its national jurisdiction, as in the third paragraph, then a fortiori,
by the same logic, the second paragraph can only be self-executing as it does not
by its language require any legislation in order to give preference to qualified
Filipinos... in the grant of rights, privileges and concessions covering the national
economy and patrimony. A constitutional provision may be self-executing in one
part and non-self-executing in another.
 30

On the other hand, Sec. 10, second par., Art. XII of the 1987 Constitution is a
mandatory, positive command which is complete in itself and which needs no
further guidelines or implementing laws or rules for its enforcement. From its very
words the provision does not require any... legislation to put it in operation. It is per
se judicially enforceable. When our Constitution mandates that [i]n the grant of
rights, privileges, and concessions covering national economy and patrimony, the
State shall give preference to qualified Filipinos, it means just that

 qualified Filipinos shall be preferred. And when our Constitution declares that
a right exists in certain specified circumstances an action may be maintained
to enforce such right notwithstanding the absence of any legislation on the
subject; consequently, if there is no... statute especially enacted to enforce
such constitutional right, such right enforces itself by its own inherent
potency and puissance, and from which all legislations must take their
bearings. Where there is a right there is a remedy. Ubi jus ibi remedium.

In its plain and ordinary meaning, the term patrimony pertains to heritage.[35]
When the Constitution speaks of national patrimony, it refers not only to the natural
resources of the Philippines, as the Constitution could have very well used the term
natural resources. but also to the cultural heritage of the Filipinos.
Manila Hotel has become a landmark - a living testimonial of Philippine heritage.
For more than eight (8) decades Manila Hotel has bore mute witness to the
triumphs and failures, loves and frustrations of the Filipinos; its existence is
impressed with public interest; its own historicity associated with our struggle for
sovereignty, independence and... nationhood. Verily, Manila Hotel has become part
of our national economy and patrimony.
For sure, 51% of the equity of the MHC comes within the purview of the
constitutional shelter for it comprises the majority and controlling stock, so that
anyone who acquires or owns the 51%... will have actual control and management
of the hotel. In this instance, 51% of the MHC cannot be disassociated from the
hotel and the land on which the hotel edifice stands. Consequently, we cannot
sustain respondents' claim that the Filipino First Policy provision is not... applicable
since what is being sold is only 51% of the outstanding shares of the corporation,
not the Hotel building nor the land upon which the building stands.
The term qualified Filipinos as used in our Constitution also includes corporations at
least 60% of which is owned by Filipinos.
In the instant case, where a foreign firm submits the highest bid in a public bidding
concerning the grant of rights, privileges and concessions covering the national
economy and patrimony, thereby exceeding the bid of a Filipino, there is no
question that the Filipino will have... to be allowed to match the bid of the foreign
entity. And if the Filipino matches the bid of a foreign firm the award should go to
the Filipino. It must be so if we are to give life and meaning to the Filipino First
Policy provision of the 1987 Constitution. For, while this may... neither be expressly
stated nor contemplated in the bidding rules, the constitutional fiat is omnipresent
to be simply disregarded. To ignore it would be to sanction a perilous skirting of the
basic law.
The Manila Hotel or, for that matter, 51% of the MHC, is not just any commodity to
be sold to the highest bidder solely for the sake of privatization. We are not talking
about an ordinary piece of property in a commercial district. We are talking about a
historic relic that has... hosted many of the most important events in the short
history of the Philippines as a nation. We are talking about a hotel where heads of
states would prefer to be housed as a strong manifestation of their desire to cloak
the dignity of the highest state function to their... official visits to the Philippines.
Thus the Manila Hotel has played and continues to play a significant role as an
authentic repository of twentieth century Philippine history and culture. In this
sense, it has become truly a reflection of the Filipino soul - a place with a... history
of grandeur; a most historical setting that has played a part in the shaping of a
country.
WHEREFORE, respondents GOVERNMENT SERVICE INSURANCE SYSTEM, MANILA
HOTEL CORPORATION, COMMITTEE ON PRIVATIZATION and OFFICE OF THE
 31

GOVERNMENT CORPORATE COUNSEL are directed to CEASE and DESIST from

selling 51% of the shares of the Manila Hotel Corporation to RENONG BERHAD,
and... to ACCEPT the matching bid of petitioner MANILA PRINCE HOTEL
CORPORATION to purchase the subject 51% of the shares of the Manila Hotel
Corporation at P44.00 per share and thereafter to execute the necessary
agreements and documents to effect the sale, to issue the necessary... clearances
and to do such other acts and deeds as may be necessary for the purpose.

Principles:
Hence, unless it is expressly provided that a legislative act is necessary to enforce
a constitutional mandate, the presumption now is that all provisions of the
constitution are... self-executing. If the constitutional provisions are treated as
requiring legislation instead of self-executing, the legislature would have the power
to ignore and practically nullify the mandate of the fundamental law.[14] This can
be cataclysmic. That is... why the prevailing view is, as it has always been, that -...
x x x x in case of doubt, the Constitution should be considered self-executing rather
than non-self-executing x x x x Unless the contrary is clearly intended, the
provisions of the Constitution should be considered self-executing, as a contrary
rule would give the... legislature discretion to determine when, or whether, they
shall be effective. These provisions would be subordinated to the will of the
lawmaking body, which could make them entirely meaningless by simply refusing
to pass the needed implementing statute.
A constitutional provision may be self-executing in one part and non-self-executing
in another
 32

The supremacy of the Constitution in the Philippines

means that the Constitution is the highest law of the land, and all other laws,
statutes, and government actions must be consistent with and subordinate to the
Constitution.

The Constitution vs law or statute relationship in the Philippines establishes a

hierarchy where the Constitution is the supreme and fundamental law. All ordinary
laws, statutes, executive actions, and other government policies must comply with
and not contradict the provisions and principles enshrined in the Constitution.

If there is a conflict between a law or statute and the Constitution, the Constitution
prevails. The courts have the power to declare a law or government action
unconstitutional and therefore invalid if it violates the Constitution. This is a core
principle of constitutional supremacy that ensures the fundamental rights and
principles laid out in the Constitution are upheld and protected.

ARTURO M. TOLENTINO v. COMMISSION ON ELECTIONS, GR No. L-34150, 1971-10-

16
Facts:
After the election of the delegates held on November 10, 1970, the Convention
held its inaugural session on June 1, 1971.
the Convention approved Organic Resolution No. 1 reading thus:
"CC ORGANIC RESOLUTION NO. 1
"A RESOLUTION AMENDING SECTION ONE OF ARTICLE V OF THE CONSTITUTION OF
THE PHILIPPINES SO AS TO LOWER THE VOTING AGE TO 18
"BE IT RESOLVED as it is hereby resolved by the 1971 Constitutional Convention:
"Section 1. Section One of Article V of the Constitution of the Philippines is
amended to read as follows:
'Section 1. Suffrage may be exercised by (male) citizens of the Philippines not
otherwise disqualified by law, who are (twenty-one) EIGHTEEN years or over and
are able to read and write, and who shall have resided in the Philippines for one
year and in the... municipality wherein they propose to vote for at least six months
preceding the election.'
On September 30, 1971, COMELEC "RESOLVED to inform the Constitutional
Convention that it will hold the plebiscite on condition that:
"(a) The Constitutional Convention will undertake the printing of separate official
ballots, election returns and tally sheets for the use of said plebiscite at its ex-
pense;
 33

"(b) The Constitutional Convention will adopt its own security measures for the
printing and shipment of said ballots and election forms; and
"(c) Said official ballots and election forms will be delivered to the Commission in
time so that they could be distributed at the same time that the Commission will
distribute its official and sample ballots to be used in the elections on
November 8, 1971."
RESOLUTION CONFIRMING IMPLEMENTATION
"On October 12, 1971, the Convention passed Resolution No. 24 submitted by
Delegate Jose Ozamiz confirming the authority of the President of the Convention
to implement Organic Resolution No. 1, including the creation of the Ad Hoc
Committee and... ratifying all acts performed in connection with said
implementation."
"RESOLUTION CONFIRMING IMPLEMENTATION
"On October 12, 1971, the Convention passed Resolution No. 24 submitted by
Delegate Jose Ozamiz confirming the authority of the President of the Convention
to implement Organic Resolution No. 1, including the creation of the Ad Hoc
Committee and... ratifying all acts performed in connection with said
implementation."... the main thrust of the petition is that Organic Resolution No. 1
and the other implementing resolutions thereof subsequently approved by the
Convention have no force and effect as laws in so far as they provide for the
holding of a plebiscite coincident... with the elections of eight senators and all city,
provincial and municipal officials to be held on November 8, 1971, hence all of
Comelec's acts in obedience thereof and tending to carry out the holding of the
plebiscite directed by said resolutions are null and... void, on the ground that the
calling and holding of such a plebiscite is, by the Constitution, a power lodged
exclusively in Congress, as a legislative body, and may not be exercised by the
Convention, and that, under Section 1, Article XV of the Constitution, the
proposed... amendment in question cannot be presented to the people for
ratification separately from each and all of the other amendments to be drafted
and proposed by the Convention.
respondents and intervenors posit that the power to... provide for, fix the date and
lay down the details of the plebiscite for the ratification of any amendment the
Convention may deem proper to propose is within the authority of the Convention
as a necessary consequence and part of its power to propose amendments and
that this... power includes that of submitting such amendments either individually
or jointly at such time and manner as the Convention may direct in its discretion.
his only purpose in filing the petition being to comply with his sworn duty to
prevent, whenever he can, any violation of the Constitution of the Philippines even
if it is committed in the course of or in connection with the most laudable...
undertaking
Issues:
Petition for prohibition principally to restrain the respondent Commission on
Elections "from undertaking to hold a plebiscite on November 8, 1971", at which
the proposed constitutional amendment "reducing the voting age" in Section 1 of
Article V of the Constitution of the
Philippines to eighteen years "shall be submitted" for ratification by the people
pursuant to Organic Resolution No. 1 of the Constitutional Convention of 1971, and
the subsequent implementing resolutions, by declaring said resolutions to be
without the force and effect of law... in so far as they direct the holding of such
plebiscite and by also declaring the acts of the respondent Commission (COMELEC)
performed and to be done by it in obedience to the aforesaid Convention
resolutions to be null and void, for being violative of the
Constitution of the Philippines.
Is it within the powers of the Constitutional Convention of 1971 to order, on its own
fiat, the holding of a plebiscite for the ratification of the proposed amendment redu-
cing to... eighteen years the age for the exercise of suffrage under Section 1 of
 34

Article V of the Constitution proposed in the Convention's Organic Resolution No. 1

in the manner and form provided for in said resolution and the subsequent
implementing acts and resolution of the
Convention?
Ruling:
We are left with no alternative but to uphold the jurisdiction of the Court over the
present case. It goes without saying that We do this not because the Court is
superior to the Convention or that the Convention is subject to the control of... the
Court, but simply because both the Convention and the Court are subject to the
Constitution and the rule of law, and "upon principle, reason and authority," per
Justice Laurel, supra, it is within the power, as it is the solemn duty of the Court,
under the existing
Constitution to resolve the issues in which petitioner, respondents and intervenors
have joined in this case.
The Court holds that there is, and it is the condition and limitation that all the
amendments to be proposed by the same Convention must be submitted to the
people in a single "election" or plebiscite.
It being... indisputable that the amendment now proposed to be submitted to a
plebiscite is only the first amendment the Convention will propose We hold that the
plebiscite being called for the purpose of submitting the same for ratification of the
people on November 8, 1971 is not... authorized by Section 1 of Article XV of the
Constitution, hence all acts of the Convention and the respondent Comelec in that
direction are null and void.
We... are of the conviction that in providing for the questioned plebiscite before it
has finished, and separately from, the whole draft of the constitution it has been
called to formulate, the Convention's Organic Resolution No. 1 and all subsequent
acts of the Convention... implementing the same violate the condition in Section 1,
Article XV that there should only be one "election" or plebiscite for the ratification
of all the amendments the Convention may propose.
under Section 1, Article XV of the Constitution, the same should be submitted to
them not separately from but together with all the other amendments to be
proposed by this present Convention.
Principles:
Indeed, the power to amend the Constitution or to propose amendments thereto is
not included in the general grant of legislative powers to Congress (Section 1, Art.
VI, Constitution of the Philippines) It is part of the inherent powers of the people -
as... the repository of sovereignty in a republican state, such as ours (Section 1,
Art. II, Constitution of the Philippines) - to make, and, hence, to amend their own
Fundamental Law. Congress may propose amendments to the Constitution merely
because the same... explicitly grants such power. (Section 1, Art. XV, Constitution
of the Philippines) Hence, when exercising the same, it is said that Senators and
members of the House of Representatives act, not as members of Congress, but as
component elements of a... constituent assembly. When acting as such, the
members of Congress derive their authority from the Constitution, unlike the
people, when performing the same function, (Of amending the Constitution) for
their authority does not... emanate from the Constitution - they are the very source
of all powers of government, including the Constitution itself.
"Indeed, the power to amend the Constitution or to propose amendments thereto is
not included in the general grant of legislative powers to Congress (Section 1, Art.
VI, Constitution of the Philippines) It is part of the inherent powers of the people -
as... the repository of sovereignty in a republican state, such as ours (Section 1,
Art. II, Constitution of the Philippines) - to make, and, hence, to amend their own
Fundamental Law. Congress may propose amendments to the Constitution merely
because the same... explicitly grants such power. (Section 1, Art. XV, Constitution
of the Philippines) Hence, when exercising the same, it is said that Senators and
members of the House of Representatives act, not as members of Congress, but as
component elements of a... constituent assembly. When acting as such, the
 35

members of Congress derive their authority from the Constitution, unlike the
people, when performing the same function, (Of amending the Constitution) for
their authority does not... emanate from the Constitution - they are the very source
of all powers of government, including the Constitution itself.
The language of the constitutional provision aforequoted is sufficiently clear. It
says distinctly that either Congress sitting as a constituent assembly or a
convention called for the purpose "may propose amendments... to this
Constitution," thus placing no limit as to the number of amendments that Congress
or the Convention may propose. The same provision also as definitely provides
that "such amendments shall be valid as part of this Constitution when approved
by a... majority of the votes cast at an election at which the amendments are
submitted to the people for their ratification," thus leaving no room for doubt as to
how many "elections" or plebiscites may be held to ratify any amendment or
amendments proposed by the same... constituent assembly of Congress or
convention, and the provision unequivocally says "an election" which means only
one.
We are of the opinion that the present Constitution does not contemplate in Section
1 of Article XV a... plebiscite or "election" wherein the people are in the dark as to
frame of reference they can base their judgment on. We reject the rationalization
that the present Constitution is a possible frame of reference, for the simple reason
that... intervenors themselves are stating that the sole purpose of the proposed
amendment is to enable the eighteen year olds to take part in the election for the
ratification of the Constitution to be drafted by the Convention. In brief, under
the... proposed plebiscite, there can be, in the language of Justice Sanchez,
speaking for the six members of the Court in Gonzales, supra, "no proper
submission".

The Constitution is the primary source of authority and legitimacy for the
government and its actions. It defines the structure, powers, and limits of the
different branches of government, as well as the rights and freedoms of Philippine
citizens. This supremacy of the Constitution maintains the rule of law and prevents
the abuse of power by the state.

MIRIAM DEFENSOR SANTIAGO v. COMELEC, GR No. 127325, 1997-03-19

Facts:
Delfin alleged in his petition that
Attached to the... petition is a copy of a "Petition for Initiative on the 1987
Constitution"[10] embodying the proposed amendments which consist in the
deletion from the aforecited sections of the provisions concerning term limits, and
with the following proposition:
 36

DO YOU APPROVE OF LIFTING THE TERM LIMITS OF ALL ELECTIVE GOVERNMENT

OFFICIALS, AMENDING FOR THE PURPOSE SECTIONS 4 AND 7 OF ARTICLE VI,
SECTION 4 OF ARTICLE VII, AND SECTION 8 OF ARTICLE X OF THE 1987 PHILIPPINE
CONSTITUTION?
According to Delfin, the said Petition for Initiative will first be submitted to the
people, and after it is signed by at least twelve per cent of the total number of
registered voters in the country it will be formally filed with the COMELEC.
On 18 December 1996, the petitioners herein -- Senator Miriam Defensor Santiago,
Alexander Padilla, and Maria Isabel Ongpin -- filed this special civil action for
prohibition raising the following arguments:
(1) The constitutional provision on people's initiative to amend the Constitution can
only be implemented by law to be passed by Congress. No such law has been
passed;
(2) It is true that R.A. No. 6735 provides for three systems of initiative, namely,
initiative on the Constitution, on statutes, and on local legislation. However, it failed
to provide any subtitle on initiative on the Constitution, unlike in the other modes of
initiative, which... are specifically provided for in Subtitle II and Subtitle III. This
deliberate omission indicates that the matter of people's initiative to amend the
Constitution was left to some future law.
(5)The people's initiative is limited to amendments to the Constitution, not to
revision thereof. Extending or lifting of term limits constitutes a revision and is,
therefore, outside the power of the people's initiative.
Issues:
Issue No. 1

Whether R.A. No. 6735, entitled An Act Providing for a System of Initiative and
Referendum and Appropriating Funds Therefor, was intended to include or cover
initiative on amendments to the Constitution; and if so, whether the Act, as worded,
adequately covers... such initiative
Issue No. 2

Whether that portion of COMELEC Resolution No. 2300 (In re: Rules and Regulations
Governing the Conduct of Initiative on the Constitution, and Initiative and
Referendum on National and Local Laws) regarding the conduct of initiative on
amendments to the Constitution is valid,... considering the absence in the law of
specific provisions on the conduct of such initiative
Issue No. 3

Whether the lifting of term limits of elective national and local officials, as proposed
in the draft "Petition for Initiative on the 1987 Constitution," would constitute a
revision of, or an amendment to, the Constitution.
Ruling:
Ruling on the first issue:

R.A. NO. 6735 INTENDED TO INCLUDE THE SYSTEM

OF INITIATIVE ON AMENDMENTS TO THE
CONSTITUTION, BUT IS, UNFORTUNATELY,... INADEQUATE TO COVER THAT SYSTEM.
Section 2 of Article XVII of the Constitution provides:
SEC. 2. Amendments to this Constitution may likewise be directly proposed by the
people through initiative upon a petition of at least twelve per centum of the total
number of registered voters, of which every legislative district must be represented
by at least... three per centum of the registered voters therein. No amendment
under this section shall be authorized within five years following the ratification of
this Constitution nor oftener than once every five years thereafter.
The Congress shall provide for the implementation of the exercise of this right.
 37

This provision is not self-executory. In his book,[29] Joaquin Bernas, a member of

the 1986 Constitutional Commission, stated:
Without implementing legislation Section 2 cannot operate. Thus, although this
mode of amending the Constitution is a mode of amendment which bypasses
congressional action, in the last analysis it still is dependent on congressional
action.
Bluntly stated, the right of the people to directly propose amendments to the
Constitution through the system of initiative would remain entombed in the cold
niche of the Constitution until Congress provides for its implementation. Stated
otherwise, while the Constitution has... recognized or granted that right, the people
cannot exercise it if Congress, for whatever reason, does not provide for its
implementation.
Ruling on the second issue

COMELEC RESOLUTION NO. 2300, INSOFAR AS IT PRESCRIBES RULES AND

REGULATIONS ON THE CONDUCT OF INITIATIVE ON AMENDMENTS TO THE
CONSTITUTION, IS VOID.
It logically follows that the COMELEC cannot validly promulgate rules and
regulations to implement the exercise of the right of the people to directly propose
amendments to the Constitution through the system of initiative. It does not have
that power under R.A. No. 6735.
Reliance on the COMELEC's power under Section 2(1) of Article IX-C of the
Constitution is misplaced, for the laws and regulations referred to therein are those
promulgated by the COMELEC under (a) Section 3 of Article IX-C of the Constitution,
or (b) a law where subordinate... legislation is authorized and which satisfies the
"completeness" and the "sufficient standard" tests.
Ruling on the 3rd issue

The foregoing considered, further discussion on the issue of whether the proposal
to lift the term limits of the elective national and local officials is an amendment to,
and not a revision of, the Constitution is rendered unnecessary, if not academic.
Principles:
Section 2 of Article XVII of the Constitution... is not self-executory.
Without implementing legislation Section 2 cannot operate. Thus, although this
mode of amending the Constitution is a mode of amendment which bypasses
congressional action, in the last analysis it still is dependent on congressional
action.

REV. ELLY CHAVEZ PAMATONG v. COMELEC, GR No. 161872, 2004-04-13

 38

Facts:
The COMELEC declared petitioner and thirty-five (35) others nuisance candidates
who could not wage a nationwide campaign and/or are not... nominated by a
political party or are not supported by a registered political party with a national
constituency. Commissioner Sadain maintained his vote for petitioner.
In this Petition For Writ of Certiorari, petitioner seeks to reverse the resolutions
which were allegedly rendered in violation of his right to "equal access to
opportunities for public service" under Section 26, Article II of the 1987
Constitution,[1] by limiting the number of qualified candidates only to those who
can afford to wage a nationwide campaign and/or are nominated by political
parties. In so doing, petitioner argues that the COMELEC indirectly amended the
constitutional provisions on the electoral... process and limited the power of the
sovereign people to choose their leaders
Issues:
No.1... seeks to reverse the resolutions which were allegedly rendered in violation
of his right to "equal access to opportunities for public service" under Section 26,
Article II of the 1987 Constitution,[1] by limiting the number of qualified candidates
only to those who can afford to wage a nationwide campaign and/or are nominated
by political parties.
No. 2... whether a candidate is a nuisance candidate or not

Ruling:
No.1

First, the constitutional and legal dimensions involved.

Implicit in the petitioner's invocation of the constitutional provision ensuring "equal
access to opportunities for public office" is the claim that there is a constitutional
right to run for or hold public office and, particularly in his case, to seek the
presidency. There is... none. What is recognized is merely a privilege subject to
limitations imposed by law. Section 26, Article II of the Constitution neither bestows
such a right nor elevates the privilege to the level of an enforceable right. There is
nothing in the plain language of the provision... which suggests such a thrust or
justifies an interpretation of the sort.
The "equal access" provision is a subsumed part of Article II of the Constitution,
entitled "Declaration of Principles and State Policies." The provisions under the
Article are generally considered not self-executing,[2] and there is no plausible
reason for... according a different treatment to the "equal access" provision. Like
the rest of the policies enumerated in Article II, the provision does not contain any
judicially enforceable constitutional right but merely specifies a guideline for
legislative or executive... action.[3] The disregard of the provision does not give
rise to any cause of action before the courts.
Obviously, the provision is not intended to compel the State to enact positive
measures that would accommodate as many people as possible into public office.
The approval of the "Davide amendment" indicates the design of the framers to
cast the provision as simply enunciatory of... a desired policy objective and not
reflective of the imposition of a clear State burden.
Moreover, the provision as written leaves much to be desired if it is to be regarded
as the source of positive rights. It is difficult to interpret the clause as operative in
the absence of legislation since its effective means and reach are not properly
defined. Broadly... written, the myriad of claims that can be subsumed under this
rubric appear to be entirely open-ended.[8] Words and phrases such as "equal
access," "opportunities," and "public service" are susceptible to countless
interpretations owing to their inherent... impreciseness. Certainly, it was not the
intention of the framers to inflict on the people an operative but amorphous
foundation from which innately unenforceable rights may be sourced.
As earlier noted, the privilege of equal access to opportunities to public office may
be subjected to limitations. Some valid limitations specifically on the privilege to
seek elective office are found in the provisions[9] of the Omnibus Election Code on
 39

"Nuisance Candidates" and COMELEC Resolution No. 6452[10] dated December 10,
2002 outlining the instances wherein the COMELEC may motu proprio refuse to
give due course to or cancel a Certificate of Candidacy.
As long as the limitations apply to everybody equally without discrimination,
however, the equal access clause is not violated. Equality is not sacrificed as long
as the burdens engendered by the limitations are meant to be borne by any one
who is minded to file a certificate of... candidacy. In the case at bar, there is no
showing that any person is exempt from the limitations or the burdens which they
create.
Significantly, petitioner does not challenge the constitutionality or validity of
Section 69 of the Omnibus Election Code and COMELEC Resolution No. 6452 dated
10 December 2003. Thus, their presumed validity stands and has to be accorded
due weight.
Clearly, therefore, petitioner's reliance on the equal access clause in Section 26,
Article II of the Constitution is misplaced.
The rationale behind the prohibition against nuisance candidates and the
disqualification of candidates who have not evinced a bona fide intention to run for
office is easy to divine. The State has a compelling interest to ensure that its
electoral exercises are rational,... objective, and orderly. Towards this end, the
State takes into account the practical considerations in conducting elections.
Inevitably, the greater the number of candidates, the greater the opportunities for
logistical confusion, not to mention the increased allocation of time... and resources
in preparation for the election. These practical difficulties should, of course, never
exempt the State from the conduct of a mandated electoral exercise. At the same
time, remedial actions should be available to alleviate these logistical hardships,
whenever... necessary and proper. Ultimately, a disorderly election is not merely a
textbook example of inefficiency, but a rot that erodes faith in our democratic
institutions.
No. 2

The question of whether a candidate is a nuisance candidate or not is both legal

and factual. The basis of the factual determination is not before this Court. Thus,
the remand of this case for the reception of further evidence is in order.
A word of caution is in order. What is at stake is petitioner's aspiration and offer to
serve in the government. It deserves not a cursory treatment but a hearing which
conforms to the requirements of due process.
As to petitioner's attacks on the validity of the form for the certificate of candidacy,
suffice it to say that the form strictly complies with Section 74 of the Omnibus
Election Code. This provision specifically enumerates what a certificate of
candidacy should contain, with... the required information tending to show that the
candidate possesses the minimum qualifications for the position aspired for as
established by the Constitution and other election laws.
IN VIEW OF THE FOREGOING, COMELEC Case No. SPP (MP) No. 04-001 is hereby
remanded to the COMELEC for the reception of further evidence, to determine the
question on whether petitioner Elly Velez Lao Pamatong is a nuisance candidate as
contemplated in Section 69 of the Omnibus
Election Code.
 40

OCAMPO v. ENRIQUEZ, GR No. 225973, 2017-08-08

Facts:
On November 8, 2016, the Court dismissed the petitions challenging the intended
burial of the mortal remains of Ferdinand E. Marcos (Marcos), former President of
the Republic of the Philippines, at the Libingan ng mga Bayani (LNMB). As the
Filipino public witnessed through the broadcast media and as the Office of the
Solicitor General (OSG) m
Petitioners argue that the main issue of the petitions does not deal on the wisdom
of the actions of President Rodrigo R. Duterte (Duterte) and the public respondents
but their violation of the 1987 Constitution (Constitution), laws, and jurisprudence.
They posit that, under its expanded jurisdiction, the Court has the duty to exercise
judicial power to review even those decisions or exercises of discretion that were
formerly considered political questions in order to determine whether there is grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of a
public officer.
restored to them by law. Essentially, petitioners decry that Marcos' burial at the
LNMB results in illegal use of public funds, re-traumatization, historical revisionism,
disregard of their state recognition as heroes and their rights to effective reparation
and to satisfaction.
Locus standi or legal standing has been defined as a personal and substantial
interest in the case such that the party has sustained or will sustain direct injury as
a result of the governmental act that is being challenged.[18] Generally, a party
will be allowed to litigate only when he or she can demonstrate that (1) he or she
has personally suffered some actual or threatened injury because 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 the remedy being sought.[1
However, as the Court fully explained in the assailed Decision, the historical and
legal bases governing the LNMB unequivocally reveal its nature and purpose as an
active military cemetery/grave site over which President Duterte has certain
discretionary authority, pursuant to his control and commander-in-chief powers,
which is beyond the Court's judicial power to review.
The fact that the Court was prompted to issue the SQAO does not make this case
extremely urgent to resolve. Instead of issuing a temporary restraining order (TRO)
and a writ of preliminary injunction (WPI), We issued (and extended) the effectivity
of the SQAO in order not to render moot and academic the issues raised in the
petitions. With respect to the alleged strong public interest on the case as shown
by the nationwide protests, the Court views that such mass actions indicate the
controversial nature of the issue involved. Again, the requisites of judicial review
must be satisfied.
Issues:
Petitioners-movants reiterate that AFP Regulations G 161-375 does not have the
force and effect of Law and cannot be a valid source of any right, obligation or
power for violating the Constitution, international and municipal laws, and foreign
and local jurisprudence, which, cannot be disregarded as they are deemed
incorporated in administrative regulations.
Ocampo et al. maintain that Marcos' burial at the LNMB brazenly violates the
Constitution, the basic principles of which are respect for human rights and dignity
and public accountability.
 41

Rosales et al. propound that mere existence of human rights laws, administrative
rules, and judicial issuance in the Philippines is not equivalent to full compliance
with international law standards
Ruling:
Ocampo et al. add that this Court struck down in Manila Prince Hotel the argument
that some provisions of the Constitution are not self-executing and requires
implementing legislation, and that provisions claimed to be non self-executing can
still be violated if the questioned act is directly opposite the provisions that require
the government to undertake.
Finally, it is contended that our constitutional tradition has consistently followed the
doctrine that the silence of the Constitution does not mean the absence of
constitutional principles and commands. Rosales et al. cite Angara v. Electoral
Commission,... As the OSG correctly counters, reliance on Manila Prince Hotel is
misplaced because the issue there was whether Sec. 10, Art. XII of the Constitution,
a provision which was not invoked in this case, is self-executing. Petitioners-
movants repeatedly failed to demonstrate precisely how Sections 3, 7, 11, 13, 23,
26, 27 and 28 of Art. II; Sec. 18, Art. VII; Sec. 1, Art. VIII; Sec. 1, Art. XI; Sec. 3[2],
Art. XIV; Sec. 5 [2], Art. XVI; and Sec. 17, Art. XIII of the Constitution prohibit
Marcos' burial at the LNMB. In fac
Verba legis should prevail since the presumption is that the words in which the
constitutional provisions are couched express the objective sought to be attained.
[76] The authors of our Constitution were not only the members of the
Constitutional Commission but also all those who participated in its ratification.
Since the ideas and opinions exchanged by a few of its commissioners should not
be presumed to be the opinions of ail of them, it is the specific text – and only that
text – which was the result of the deliberations of the Commission that must be
read and construed.[77] As this Court, through Justice Leonen, held in David v.
Senate Electoral Tribunal:[78]... its plain and unambiguous language with respect
to his power of control as Chief Executive and Commander-in-Chief should be
construed in a sense that will allow its foil exercise.
It cannot be conveniently claimed that various provisions of the Constitution, taken
together, necessarily imply the prohibition of Marcos' burial at the LNMB.
Petitioners Ocampo et al. and Lagman et al. insist that R.A. No. 289 is applicable in
determining the standards on who are entitled to be buried at the LNMB. As a
special law, its provisions prevail over the power to allocate lands of the public
domain granted to the President by the Administrative Code of 1987. Its salutary
objective encompasses all subsequent shrines or memorials as interment grounds
for former Presidents, heroes, and patriots, regardless of the time it was
constituted and its location.
Thus, this Court is of the view that the statutory omission – the non-inclusion of the
prohibition of Marcos' burial at the LNMB – was both deliberate and significant.
If a statute is plain and free from ambiguity, it must be given its literal meaning or
applied according to its express terms, without any attempted interpretation, and
leaving the court no room for any extended ratiocination or rationalization
Principles on Impunity are merely expressions of non-binding norms, principles, and
practices that influence state behavior; therefore, they cannot be validly
considered as sources of international law that is binding upon the Philippines
under Art. 38 (1), Chapter II[118] of the Statute of the International Court of Justice.
Principles:
The Basic Principles and Guidelines and the Updated Set of Principles for the
Protection and. Promotion of Human Rights Through Action to Combat Impunity
("UN Principles on Impunity") are neither a treaty nor have attained the status of
generally accepted principles of international law and/or international customs.
42
43
 44

JAMES M. IMBONG v. PAQUITO N. OCHOA, GR No. 204819, 2014-04-08

Facts:
Freedom of religion was accorded preferred status by the framers of our
fundamental law. And this Court has consistently affirmed this preferred status,
well aware that it is "designed to protect the broadest possible liberty of
conscience, to allow each man to... believe as his conscience directs, to profess his
beliefs, and to live as he believes he ought to live, consistent with the liberty of
others and with the common good."[1
GROUNDS:
The RH Law violates the right to life of the unborn. According to the petitioners,
notwithstanding its declared policy against abortion, the implementation of the RH
Law would authorize the purchase of hormonal contraceptives, intra-uterine
devices and... injectables which are abortives, in violation of Section 12, Article II of
the Constitution which guarantees protection of both the life of the mother and the
life of the unborn from conception
The RH Law violates the right to health and the right to protection against
hazardous products. The petitioners posit that the RH Law provides universal
access to contraceptives which are hazardous to one's health, as it causes cancer
and other... health problems
The RH Law violates the right to religious freedom. The petitioners contend that the
RH Law violates the constitutional guarantee respecting religion as it authorizes the
use of public funds for the procurement of contraceptives. For the petitioners, the
use of... public funds for purposes that are believed to be contrary to their beliefs is
included in the constitutional mandate ensuring religious freedom... they argue that
the RH Law fails to satisfy the "clear and present danger test" and the "compelling
state interest test" to justify the regulation of the right to free exercise... of religion
and the right to free speech
The RH Law violates the constitutional provision on involuntary servitude.
 45

the RH Law subjects medical practitioners to involuntary servitude because, to be

accredited under the PhilHealth program, they are compelled to... provide forty-
eight (48) hours of pro bono services for indigent women, under threat of criminal
prosecution, imprisonment and other forms of punishment
The RH Law violates the right to equal protection of the law. It is claimed that the
RH Law discriminates against the poor as it makes them the primary target of the
government program that promotes contraceptive use
The RH Law is "void-for-vagueness" in violation of the due process clause of the
Constitution.
It is claimed that, by giving absolute authority to the person who will undergo
reproductive health procedure, the RH Law forsakes any real dialogue between the
spouses and impedes the right of spouses to mutually decide on matters pertaining
to the overall well-being of their... family. In the same breath, it is also claimed that
the parents of a child who has suffered a miscarriage are deprived of parental
authority to determine whether their child should use contraceptives.
Issues:
Whether the Court may exercise its power of judicial review over the controversy.
Whether the RH law is unconstitutional:
Ruling:
Actual Case or Controversy
In this case, the Court is of the view that an actual case or controversy exists and
that the same is ripe for judicial determination. Considering that the RH Law and its
implementing rules have already taken effect and that budgetary measures to
carry out the law have... already been passed, it is evident that the subject
petitions present a justiciable controversy.
Moreover, the petitioners have shown that the case is so because medical
practitioners or medical providers are in danger of being criminally prosecuted
under the RH Law for vague violations thereof, particularly public health officers
who are threatened to be dismissed from... the service with forfeiture of retirement
and other benefits. They must, at least, be heard on the matter NOW.
Locus Standi
After all, the RH Law drastically affects the constitutional provisions on the right to
life and... health, the freedom of religion and expression and other constitutional
rights.
the Court entertains no... doubt that the petitions raise issues of transcendental
importance warranting immediate court adjudication.
the Court need not wait for a life to be taken... away before taking action.
The Court, thus, agrees with the petitioners' contention that the whole idea of
contraception pervades the entire RH Law. It is, in fact, the central idea of the RH
Law.[126] Indeed, remove the provisions that refer to contraception or are related
to it and... the RH Law loses its very foundation
In this case, a textual analysis of the various provisions of the law shows that both
"reproductive health" and "responsible parenthood" are interrelated and germane
to the overriding objective to control the population growth.
It is a universally accepted principle that every human being enjoys the right to life.
[137] Even if not formally established, the right to life, being grounded on natural
law, is inherent and, therefore, not a creation of, or dependent upon a particular...
law, custom, or belief. It precedes and transcends any authority or the laws of men.
Article III of the Constitution provides:
Section 1. No person shall be deprived of life, liberty, or property without due
process of law, nor shall any person be denied the equal protection of the laws
The RH Law and Abortion
 46

The clear and unequivocal intent of the Framers of the 1987 Constitution in
protecting the life of the unborn from conception was to prevent the Legislature
from enacting a measure legalizing abortion.
A reading of the RH Law would show that it is in line with this intent and actually
proscribes abortion. While the Court has opted not to make any determination, at
this stage, when life begins, it finds that the RH Law itself clearly mandates that
protection be afforded from... the moment of fertilization.
Moreover, the RH Law recognizes that abortion is a crime under Article 256 of the
Revised Penal Code, which penalizes the destruction or expulsion of the fertilized
ovum.
the RH Law is consistent in prohibiting abortifacients... the Court finds that the RH
Law, consistent with the Constitution, recognizes that the fertilized ovum already
has life and that the State has a bounden duty to protect it
2-The Right to Health
Thus, the Court agrees with the... observation of respondent Lagman that the
effectivity of the RH Law will not lead to the unmitigated proliferation of
contraceptives since the sale, distribution and dispensation of contraceptive drugs
and devices will still require the prescription of a licensed physician.
With
R.A. No. 4729 in place, there exists adequate safeguards to ensure the public that
only contraceptives that are safe are made available to the public.
In general, the Court does not find the RH Law as unconstitutional insofar as it
seeks to provide access to medically-safe, non-abortifacient, effective, legal,
affordable, and quality reproductive healthcare services, methods, devices, and
supplies.
As healthful as the intention of the RH Law may be, the idea does not escape the
Court that what it seeks to address is the problem of rising poverty and
unemployment in the country.
Be that as it may, it bears reiterating that the RH Law is a mere compilation and
enhancement of the prior existing contraceptive and reproductive health laws, but
with coercive measures.
Accordingly, the Court declares R.A. No. 10354 as NOT UNCONSTITUTIONAL except
with respect to the following provisions which are declared UNCONSTITUTIONAL:
Principles:
a facial challenge, also known as a First Amendment Challenge, is one that is
launched to assail the validity of statutes concerning not only protected speech,
but also all other rights in the First Amendment.
the traditional meaning of the word "conception" which, as described and defined
by all reliable and reputable sources, means that life begins at fertilization.
Life is not synonymous with civil personality. One need not acquire civil personality
first before he/she could die. Even a child inside the womb already has life. No less
than the Constitution recognizes the life of the unborn from conception, that the
State must protect equally with the life of the mother.
 47

PROVINCE OF NORTH COTABATO v. GOVERNMENT OF REPUBLIC PEACE PANEL ON

ANCESTRAL DOMAIN, GR No. 183591, 2008-10-14
Facts:
On August 5, 2008, the Government of the Republic of the Philippines (GRP) and
the MILF, through the Chairpersons of their respective peace negotiating panels,
were scheduled to sign a Memorandum of Agreement on the Ancestral Domain
(MOA-AD) Aspect of the GRP-MILF Tripoli
Agreement on Peace of 2001 in Kuala Lumpur, Malaysia.
The signing of the MOA-AD between the GRP and the MILF was not to materialize,
however, for upon motion of petitioners, specifically those who filed their cases
before the scheduled signing of the MOA-AD, this Court issued a Temporary
Restraining Order enjoining the GRP from... signing the same.
Towards the end of 1999 up to early 2000, the MILF attacked a number of
municipalities in Central Mindanao and, in March 2000, it took control of the town
hall of
Kauswagan, Lanao del Norte.[3] In response, then President Joseph Estrada
declared and carried out an "all-out-war" against the MILF.
Formal peace talks between the parties were held in Tripoli, Libya from June 20-22,
2001, the outcome of which was the GRP-MILF Tripoli Agreement on Peace (Tripoli
Agreement 2001) containing the basic principles and agenda on the following
aspects of the negotiation:
Security Aspect, Rehabilitation Aspect, and Ancestral Domain Aspect. With regard
to the Ancestral Domain Aspect, the parties in Tripoli Agreement 2001 simply
agreed "that the same be discussed further by the Parties in their next meeting."
In 2005, several exploratory talks were held between the parties in Kuala Lumpur,
eventually leading to the crafting of the draft MOA-AD in its final form, which, as
mentioned, was set to be signed last August 5, 2008.
On August 19, 2008, Ernesto Maceda, Jejomar Binay, and Aquilino Pimentel III filed
a petition for Prohibition,... praying for a judgment prohibiting and permanently
enjoining respondents from formally signing and... executing the MOA-AD and or
any other agreement derived therefrom or similar thereto, and nullifying the MOA-
AD for being unconstitutional and illegal. Petitioners herein additionally implead as
respondent the MILF Peace Negotiating Panel represented by its Chairman
Mohagher
Iqbal.
Issues:
Whether the petitions have become moot and academic
(i) insofar as the mandamus aspect is concerned, in view of the disclosure of official
copies of the final draft of the Memorandum of Agreement (MOA); and
(ii) insofar as the prohibition aspect involving the Local Government Units is
concerned, if it is considered that consultation has become fait accompli with the
finalization of the draft
Whether the constitutionality and the legality of the MOA is ripe for adjudication
W... hether respondent Government of the Republic of the Philippines Peace Panel
committed grave abuse of discretion amounting to lack or excess of jurisdiction
when it negotiated and initiated the MOA vis-à-vis ISSUES Nos. 4 and 5
 48

Whether there is a violation of the people's right to information on matters of public

concern (1987 Constitution, Article III, Sec. 7) under a state policy of full disclosure
of all its transactions involving public interest (1987 Constitution, Article II, Sec.
28)... including public consultation under Republic Act No. 7160 (LOCAL
GOVERNMENT CODE OF 1991)
If it is in the affirmative, whether prohibition under Rule 65 of the 1997 Rules of
Civil Procedure is an appropriate remedy
Whether by signing the MOA, the Government of the Republic of the Philippines
would be BINDING itself... a) to create and recognize the Bangsamoro Juridical
Entity (BJE) as a separate state, or a juridical, territorial or political subdivision not
recognized by law;... b) to revise or amend the Constitution and existing laws to
conform to the MOA;... c) to concede to or recognize the claim of the Moro Islamic
Liberation Front for ancestral domain in violation of Republic Act No. 8371 (THE
INDIGENOUS PEOPLES RIGHTS ACT OF 1997), particularly Section 3(g) & Chapter VII
(DELINEATION, RECOGNITION OF ANCESTRAL
DOMAINS)
If in the affirmative, whether the Executive Branch has the authority to so bind the
Government of the Republic of the Philippines
Whether the inclusion/exclusion of the Province of North Cotabato, Cities of
Zamboanga, Iligan and Isabela, and the Municipality of Linamon, Lanao del Norte
in/from the areas covered by the projected Bangsamoro Homeland is a justiciable
question... hether desistance from signing the MOA derogates any prior valid
commitments of the Government of the Republic of the Philippines.
Wh
Ruling:
In general, the objections against the MOA-AD center on the extent of the powers
conceded therein to the BJE.
right to self-determination of a people is normally fulfilled through internal self-
determination - a people's pursuit of its political, economic, social and cultural
development within the framework... of an existing state. A right to external self-
determination... arises in only the most extreme of cases and, even then, under
carefully defined circumstances.
External self-determination can be defined as in the following statement from the
Declaration on Friendly Relations, supra
One, E.O. No. 3 itself is replete with mechanics for continuing consultations on both
national and local levels and for a principal forum for consensus-building. In fact, it
is the duty of the Presidential Adviser on the Peace Process to conduct regular
dialogues to seek... relevant information, comments, advice, and recommendations
from peace partners and concerned sectors of society.
Two, Republic Act No. 7160 or the Local Government Code of 1991 requires all
national offices to conduct consultations before any project or program critical to
the environment and human ecology including those that may call for the eviction
of a particular group of... people residing in such locality, is implemented therein.
The MOA-AD is one peculiar program that unequivocally and unilaterally vests
ownership of a vast territory to the Bangsamoro people, which could pervasively
and drastically result to the diaspora or displacement of a... great number of
inhabitants from their total environment.
Three, Republic Act No. 8371 or the Indigenous Peoples Rights Act of 1997 provides
for clear-cut procedure for the recognition and delineation of ancestral domain,
which entails, among other things, the observance of the free and prior informed
consent of the Indigenous
Cultural Communities/Indigenous Peoples. Notably, the statute does not grant the
Executive Department or any government agency the power to delineate and
recognize an ancestral domain claim by mere agreement or compromise.
 49

The MOA-AD cannot be reconciled with the present Constitution and laws. Not only
its specific provisions but the very concept underlying them, namely, the
associative relationship envisioned between the GRP and the BJE, are
unconstitutional , for the concept... presupposes that the associated entity is a
state and implies that the same is on its way to independence.
While there is a clause in the MOA-AD stating that the provisions thereof
inconsistent with the present legal framework will not be effective until that
framework is amended, the same does not cure its defect. The inclusion of
provisions in the MOA-AD establishing an associative... relationship between the
BJE and the Central Government is, itself, a violation of the Memorandum of
Instructions From The President dated March 1, 2001, addressed to the government
peace panel. Moreover, as the clause is worded, it virtually guarantees that the
necessary... amendments to the Constitution and the laws will eventually be put in
place. Neither the GRP Peace Panel nor the President herself is authorized to make
such a guarantee. Upholding such an act would amount to authorizing a usurpation
of the constituent powers vested only in
Congress, a Constitutional Convention, or the people themselves through the
process of initiative, for the only way that the Executive can ensure the outcome of
the amendment process is through an undue influence or interference with that
process.
While the MOA-AD would not amount to an international agreement or unilateral
declaration binding on the Philippines under international law, respondents' act of
guaranteeing amendments is, by itself, already a constitutional violation that
renders the MOA-AD fatally... defective.
WHEREFORE, respondents' motion to dismiss is DENIED. The main and intervening
petitions are GIVEN DUE COURSE and hereby GRANTED.
Principles:
Under the heading "Terms of Reference" (TOR), the MOA-AD includes not only four
earlier agreements between the GRP and MILF, but also two agreements between
the GRP and the MNLF: the 1976 Tripoli Agreement, and the Final Peace Agreement
on the Implementation of the 1976 Tripoli
Agreement, signed on September 2, 1996 during the administration of President
Fidel Ramos.
`Bangsamoros.'" It defines "
"Bangsamoro people" as the natives or original inhabitants of Mindanao and its...
adjacent islands including Palawan and the Sulu archipelago at the time of
conquest or colonization, and their descendants whether mixed or of full blood,
including their spouses.
Thus, the concept of "Bangsamoro," as defined in this strand of the MOA-AD,
includes not only "Moros" as traditionally understood even by Muslims,[31] but all
indigenous peoples of Mindanao and its adjacent islands.
The Bangsamoro people are acknowledged as having the right to self-governance,
which right is said to be rooted on ancestral territoriality exercised originally under
the suzerain authority of their sultanates and the Pat a Pangampong ku Ranaw.
 50

PROF. MERLIN M. MAGALLONA v. EDUARDO ERMITA, GR No. 187167, 2011-08-16

Facts:
In 1961, Congress passed Republic Act No. 3046... demarcating the maritime
baselines of the Philippines as an archipelagic State.
In March 2009, Congress amended RA 3046 by enacting RA 9522, the statute now
under scrutiny. The change was prompted by the need to make RA 3046 compliant
with the terms of the United Nations Convention on the Law of the Sea (UNCLOS
III),... which the
Philippines ratified on 27 February 1984.
Among others, UNCLOS III prescribes the water-land ratio, length, and contour of
baselines of archipelagic States like the Philippines... and sets the deadline for the
filing of application... for the extended continental shelf.
RA 9522 shortened one baseline, optimized the location of some basepoints around
the Philippine archipelago and classified adjacent territories, namely, the Kalayaan
Island Group
(KIG) and the Scarborough Shoal, as "regimes of islands" whose islands generate
their own applicable maritime zones.
Petitioners, professors of law, law students and a legislator, in their respective
capacities... assail the constitutionality of RA 9522 on two principal grounds,
namely: (1) RA 9522 reduces
Philippine maritime territory, and logically, the reach of the Philippine state's
sovereign power, in violation of Article 1 of the 1987 Constitution,... embodying the
terms of the Treaty of Paris... and ancillary... treaties,... and (2) RA 9522 opens the
country's waters landward of the baselines to maritime passage by all vessels and
aircrafts, undermining Philippine sovereignty and national security, contravening
 51

the country's nuclear-free policy, and damaging... marine resources, in violation of

relevant constitutional provisions.
In addition, petitioners contend that RA 9522's treatment of the KIG as "regime of
islands" not only results in the loss of a large maritime area but also prejudices the
livelihood of subsistence fishermen.
petitioners facially attack RA 9522 for what it excluded and included - its failure to
reference either the Treaty of Paris or Sabah and its use of UNCLOS III's framework
of regime of islands to determine the maritime zones of the KIG and the
Scarborough Shoal.
respondents defended RA 9522 as the country's compliance with the terms of
UNCLOS III, preserving Philippine territory over the KIG or Scarborough Shoal.
Respondents add that RA 9522 does not... undermine the country's security,
environment and economic interests or relinquish the Philippines' claim over
Sabah.
Petitioners submit that RA 9522 "dismembers a large portion of the national
territory"... because it discards the pre-UNCLOS III demarcation of Philippine
territory under the Treaty of Paris and related treaties, successively encoded in the
definition of... national territory under the 1935, 1973 and 1987 Constitutions.
Petitioners theorize that this constitutional definition trumps any treaty or statutory
provision denying the Philippines sovereign control over waters, beyond the
territorial sea recognized at the time of the
Treaty of Paris, that Spain supposedly ceded to the United States. Petitioners argue
that from the Treaty of Paris' technical description, Philippine sovereignty over
territorial waters extends hundreds of nautical miles around the Philippine
archipelago, embracing the... rectangular area delineated in the Treaty of Paris.
Petitioners next submit that RA 9522's use of UNCLOS III's regime of islands
framework to draw the baselines, and to measure the breadth of the applicable
maritime zones of the KIG, "weakens our territorial claim" over that area.
Petitioners add that... the KIG's (and Scarborough Shoal's) exclusion from the
Philippine archipelagic baselines results in the loss of "about 15,000 square nautical
miles of territorial waters," prejudicing the livelihood of subsistence fishermen.
As their final argument against the validity of RA 9522, petitioners contend that the
law unconstitutionally "converts" internal waters into archipelagic waters, hence
subjecting these waters to the right of innocent and sea lanes passage under
UNCLOS III, including overflight.
Petitioners extrapolate that these passage rights indubitably expose Philippine
internal waters to nuclear and maritime pollution hazards, in violation of the
Constitution.
Issues:
whether RA 9522 is unconstitutional.
Ruling:
Petitioners' theory fails to persuade us.
UNCLOS III has nothing to do with the acquisition (or loss) of territory. It is a
multilateral treaty regulating,... sea-use rights over maritime zones (i.e., the
territorial waters [12 nautical miles from the baselines], contiguous zone [24
nautical miles from... the baselines], exclusive economic zone [200 nautical miles
from the baselines]), and continental shelves that UNCLOS III delimits.
UNCLOS III was the culmination of decades-long negotiations among United Nations
members to codify norms regulating the... conduct of States in the world's oceans
and submarine areas, recognizing coastal and archipelagic States' graduated
authority over a limited span of waters and submarine lands along their coasts.
baselines laws such as RA 9522 are enacted by UNCLOS III States parties to mark-
out specific basepoints along their coasts from which baselines are drawn, either
straight or contoured, to serve as geographic starting points to measure the
 52

breadth of the... maritime zones and continental shelf. Article 48 of UNCLOS III on
archipelagic States like ours could not be any clearer:
Article 48. Measurement of the breadth of the territorial sea, the contiguous zone,
the exclusive economic zone and the continental shelf. - The breadth of the
territorial sea, the contiguous zone, the exclusive economic zone and the
continental shelf shall... be measured from archipelagic baselines drawn in
accordance with article 47. (Emphasis supplied)
Thus, baselines laws are nothing but statutory mechanisms for UNCLOS III States
parties to delimit with precision the extent of their maritime zones and continental
shelves. In turn, this gives notice to the rest of the international community of the
scope of the maritime space... and submarine areas within which States parties
exercise treaty-based rights, namely, the exercise of sovereignty over territorial
waters (Article 2), the jurisdiction to enforce customs, fiscal, immigration, and
sanitation laws in the contiguous zone (Article 33), and the right... to exploit the
living and non-living resources in the exclusive economic zone (Article 56) and
continental shelf (Article 77).
Even under petitioners' theory that the Philippine territory embraces the islands
and all the waters within the rectangular area delimited in the Treaty of Paris, the
baselines of the Philippines would still have to be drawn in accordance with RA
9522 because this is the... only way to draw the baselines in conformity with
UNCLOS III. The baselines cannot be drawn from the boundaries or other portions of
the rectangular area delineated in the Treaty of Paris, but from the "outermost
islands and drying reefs of the archipelago."
Petitioners' assertion of loss of "about 15,000 square nautical miles of territorial
waters" under RA 9522 is similarly unfounded both in fact and law. On the contrary,
RA 9522, by optimizing the location of basepoints, increased the Philippines' total
maritime... space (covering its internal waters, territorial sea and exclusive
economic zone) by 145,216 square nautical miles
Extent of maritime area using RA 3046, as amended, taking into account the Treaty
of Paris' delimitation (in square nautical miles)
Extent of maritime area using RA 9522, taking into account UNCLOS III (in square
nautical miles)
Internal or archipelagic waters
166,858
171,435
Territorial Sea
274,136
32,106
Exclusive Economic Zone
382,669
TOTAL
440,994
586,210
Thus,... the reach of the exclusive economic zone drawn under RA 9522 even
extends way beyond the waters covered by the rectangular demarcation under the
Treaty of Paris. Of course, where there are overlapping exclusive economic zones
of opposite or adjacent
States, there will have to be a delineation of maritime boundaries in accordance
with UNCLOS III.
Hence, far from surrendering the Philippines' claim over the KIG and the
Scarborough Shoal, Congress' decision to classify the KIG and the Scarborough
 53

Shoal as "`Regime[s] of Islands' under the Republic of the Philippines consistent

with Article 121"... of
UNCLOS III manifests the Philippine State's responsible observance of its pacta sunt
servanda obligation under UNCLOS III. Under Article 121 of UNCLOS III, any
"naturally formed area of land, surrounded by water, which is above water at high
tide," such as portions of the
KIG, qualifies under the category of "regime of islands," whose islands generate
their own applicable maritime zones.
The fact of sovereignty, however, does not preclude the operation of municipal and
international law norms subjecting the territorial sea or archipelagic waters to
necessary, if not marginal, burdens in the interest of maintaining unimpeded,
expeditious international navigation,... consistent with the international law
principle of freedom of navigation. Thus, domestically, the political branches of the
Philippine government, in the competent discharge of their constitutional powers,
may pass legislation designating routes within the archipelagic waters to... regulate
innocent and sea lanes passage.
Indeed, bills drawing nautical highways for sea lanes passage are now pending in
Congress.
In the absence of municipal legislation, international law norms, now codified in
UNCLOS III, operate to grant innocent passage rights over the territorial sea or
archipelagic waters, subject to the treaty's limitations and conditions for their
exercise.
Significantly, the right of innocent passage is a customary international law,[43]
thus automatically incorporated in the corpus of Philippine law.
No modern State can validly invoke its sovereignty to absolutely... forbid innocent
passage that is exercised in accordance with customary international law without
risking retaliatory measures from the international community.
The fact that for archipelagic States, their archipelagic waters are subject to both
the right of innocent passage and sea lanes passage... does not place them in
lesser footing vis-à-vis continental coastal States which are subject, in their...
territorial sea, to the right of innocent passage and the right of transit passage
through international straits. The imposition of these passage rights through
archipelagic waters under UNCLOS III was a concession by archipelagic States, in
exchange for their right to claim all... the waters landward of their baselines,
regardless of their depth or distance from the coast, as archipelagic waters subject
to their territorial sovereignty. More importantly, the recognition of archipelagic
States' archipelago and the waters enclosed by their... baselines as one cohesive
entity prevents the treatment of their islands as separate islands under UNCLOS III.

REPUBLIC v. PROVINCIAL GOVERNMENT OF PALAWAN, GR No. 170867, 2018-12-04

Facts:
The Camago-Malampaya Natural Gas ProjectOn December 11, 1990, the Republic
of the Philippines (Republic or National Government), through the Department of
Energy (DoE), entered into Service Contract No. 38 with Shell Philippines
Exploration B.V. and Occidental Philippines, Incorporated (collectively SPEX/OXY),
as Contractor, for the exclusive conduct of petroleum operations in the area known
as "Camago-Malampaya" located offshore northwest of Palawan. Exploration of the
area led to the drilling of the Camago-Malampaya natural gas reservoir about 80
kilometers from the main island of Palawan and 30 kms from the platform.[8]The
nearest point of the Camago-Malampaya production area is at a distance of 93.264
 54

kms or 50.3585 nautical miles to the Kalayaan Island Group (Kalayaan); 55.476
kms or 29.9546 nm to mainland Palawan (Nacpan Point, south of Patuyo Cove,
Municipality of El Nido); and 48.843 kms or 26.9546 nm to the Province of Palawan
(northwest of Tapiutan Island, Municipality of El Nido).[9]The quantity of natural gas
contained in the Camago-Malampaya was estimated to be sufficient to justify the
pursuit of gas-to-power projects having an aggregate power-generating capacity of
approximately 3,000 megawatts operating at baseload for 20 to 25 years.
[10]Service Contract No. 38, as clarified by the Memorandum of Clarification
between the same parties dated December 11, 1990, provides for a production
sharing scheme whereby the National Government was entitled to receive an
amount equal to sixty percent (60%) of the net proceeds[11] from the sale of
petroleum (including natural gas) produced from petroleum operations while
SPEX/OXY, as service contractor, was entitled to receive an amount equal to forty
percent (40%) of the net proceeds.
Palawan's ClaimThe Provincial Government of Palawan asserted its claim over forty
percent (40%) of the National Government's share in the proceeds of the project. It
argued that since the reservoir is located within its territorial jurisdiction, it is
entitled to said share under Section 290[18] of the Local Government Code. The
National Government disputed the claim, arguing that since the gas fields were
approximately 80 [Link] from Palawan's coastline, they are outside the territorial
jurisdiction of the province and is within the national territory of the Philippines.[19]
The Province of Palawan1. Section 7 of the Local Government Code, on the creation
and conversion of LGUs, does not expressly provide that an LGU's territorial
jurisdiction refers only to its land area.[164]1.1. Land area is included as one of the
requisites for the creation or conversion of an LGU because evidently, no LGU can
be created out of the maritime area alone.[
As defined in its organic law, the Province of Palawan is comprised merely of
islands. The continental shelf, where the Camago-Malampaya reservoir is located,
was clearly not included in its territory.
The UNCLOS did not confer on LGUs their own continental shelf
Dean Pangalangan posited that since the Constitution has incorporated into
Philippine law the concepts of the UNCLOS, including the concept of the continental
shelf, Palawan's "area" could be construed as including its own continental shelf.
[301] The Province of Palawan and Arigo, et al. accordingly assert that Camago-
Malampaya reservoir forms part of Palawan's continental shelf.[302]The Court is
unconvinced. The Republic was correct in arguing that the concept of continental
shelf under the UNCLOS does not, by the doctrine of transformation, automatically
apply to the LGUs. We quote with approval its disquisition on this issue:The
Batasang Pambansa ratified the UNCLOS through Resolution No. 121 adopted on
February 27, 1984. Through this process, the UNCLOS attained the force and effect
of municipal law. But even if the UNCLOS were to be considered to have been
transformed to be part of the municipal law, after its ratification by the Batasang
Pambansa, the UNCLOS did not automatically amend the Local Government Code
and the charters of the local government units. No such intent is manifest either in
the UNCLOS or in Resolution No. 121. Instead, the UNCLOS, transformed into our
municipal laws, should be applied as it is worded. Verba legis.
Issues:
Palawan was not entitled to the 40% share because the Camago-Malampaya
reservoir is outside its territorial jurisdiction.
Ruling:
the Court finds that the Province of Palawan's remedy is not judicial adjudication
based on equity but legislation that clearly entitles it to share in the proceeds of
the utilization of the Camago-Malampaya reservoir. Mariano instructs that the
territorial boundaries must be clearly defined "with precise strokes." Defining those
boundaries is a legislative, not a judicial function.[321] The Court cannot, on the
basis of equity, engage in judicial legislation and alter the boundaries of the
Province of Palawan to include the continental shelf where the subject natural
resource lies. As conceded by Dean Pangalangan, "territorial jurisdiction is fixed by
a law, by a charter and that defines the territory of Palawan very strictly," and it is
 55

"something that can be altered only in accordance with [the] proper procedure
ending with a plebiscite."
WHEREFORE, the Petition in G.R. No. 170867 is GRANTED. The Decision dated
December 16, 2005 of the Regional Trial Court of the Province of Palawan, Branch
95 in Civil Case No. 3779 is REVERSED and SET ASIDE. The Court declares that
under existing law, the Province of Palawan is not entitled to share in the proceeds
of the Camago-Malampaya natural gas project. The Petition in G.R. No. 185941 is
[Link] ORDERED.
56
57
58
59
 60

ELISEO F. SORIANO v. MA. CONSOLIZA P. LAGUARDIA, GR No. 164785, 2009-04-29

Facts:
In these two petitions for certiorari and prohibition under Rule 65, petitioner Eliseo
F. Soriano seeks to nullify and set aside an order and a decision of the Movie and
Television Review and Classification Board (MTRCB) in connection with certain
utterances... he made in his television show, Ang Dating Daan.
After a preliminary conference in which petitioner appeared, the MTRCB, by Order
of August 16, 2004, preventively suspended the showing of Ang Dating Daan
program for 20 days, in accordance with Section 3(d) of Presidential Decree No.
(PD) 1986, creating the MTRCB, in... relation to Sec. 3, Chapter XIII of the 2004
Implementing Rules and Regulations (IRR) of PD 1986 and Sec. 7, Rule VII of the
MTRCB Rules of Procedure.[5] The same order also set the case for preliminary
investigation.
The following day, petitioner sought reconsideration of the preventive suspension
order, praying that Chairperson Consoliza P. Laguardia and two other members of
the adjudication board recuse themselves from hearing the case.[6] Two days
after,... however, petitioner sought to withdraw[7] his motion for reconsideration,
followed by the filing with this Court of a petition for certiorari and prohibition,[8]
docketed as G.R. No. 164785, to nullify the preventive suspension order... thus
issued.
Issues:
THE ORDER OF PREVENTIVE SUSPENSION PROMULGATED BY RESPONDENT
[MTRCB] DATED 16 AUGUST 2004 AGAINST THE TELEVISION PROGRAM ANG
DATING DAAN x x x IS NULL AND VOID FOR BEING ISSUED WITH GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION
We shall first dispose of the issues in G.R. No. 164785, regarding
It is petitioner's threshold posture that the preventive suspension imposed against
him and the relevant IRR provision authorizing it are invalid inasmuch as PD 1986
does not expressly authorize the MTRCB to issue preventive suspension.
Ruling:
Petitioner's contention is untenable.
Administrative agencies have powers and functions which may be administrative,
investigatory, regulatory, quasi-legislative, or quasi-judicial, or a mix of the five, as
may be conferred by the Constitution or by statute.[12] They have in fine only...
such powers or authority as are granted or delegated, expressly or impliedly, by
law.[13] And in determining whether an agency has certain powers, the inquiry
should be from the law itself. But once ascertained as existing, the authority given
should... be liberally construed.[14]
A perusal of the MTRCB's basic mandate under PD 1986 reveals the possession by
the agency of the authority, albeit impliedly, to issue the challenged order of
preventive suspension. And this authority stems naturally from, and is necessary
for the exercise of, its power of... regulation and supervision.
The issuance of a preventive suspension comes well within the scope of the
MTRCB's authority and functions expressly set forth in PD 1986, more particularly
under its Sec. 3(d), as quoted above, which empowers the MTRCB to "supervise,
regulate, and grant, deny or cancel, permits... for the x x x exhibition, and/or
television broadcast of all motion pictures, television programs and publicity
materials, to the end that no such pictures, programs and materials as are
determined by the BOARD to be objectionable in accordance with paragraph (c)
hereof shall be... x x x exhibited and/or broadcast by television."
Recall that the MTRCB is expressly empowered by statute to regulate and
supervise television... programs to obviate the exhibition or broadcast of, among
others, indecent or immoral materials and to impose sanctions for violations and,
corollarily, to prevent further violations as it investigates. Contrary to petitioner's
 61

assertion, the aforequoted Sec. 3 of the IRR... neither amended PD 1986 nor
extended the effect of the law. Neither did the MTRCB, by imposing the assailed
preventive suspension, outrun its authority under the law. Far from it. The
preventive suspension was actually done in furtherance of the law, imposed
pursuant, to repeat,... to the MTRCB's duty of regulating or supervising television
programs, pending a determination of whether or not there has actually been a
violation. In the final analysis, Sec. 3, Chapter XIII of the 2004 IRR merely
formalized a power which PD 1986 bestowed, albeit... impliedly, on MTRCB.
Even if we concede that petitioner's remarks are not obscene but merely indecent
speech, still the Court rules that petitioner cannot avail himself of the constitutional
protection of free speech. Said statements were made in a medium easily
accessible to children. With respect... to the young minds, said utterances are to be
treated as unprotected speech.
In ending, what petitioner obviously advocates is an unrestricted speech paradigm
in which absolute permissiveness is the norm. Petitioner's flawed belief that he may
simply utter gutter profanity on television without adverse consequences, under
the guise of free speech, does... not lend itself to acceptance in this jurisdiction. We
repeat: freedoms of speech and expression are not absolute freedoms. To say "any
act that restrains speech should be greeted with furrowed brows" is not to say that
any act that restrains or regulates speech or... expression is per se invalid. This
only recognizes the importance of freedoms of speech and expression, and
indicates the necessity to carefully scrutinize acts that may restrain or regulate
speech.
62
 63

ANASTACIO LAUREL v. ERIBERTO MISA, GR No. 409, 1947-01-30

Facts:
"In G. R. No. L-409, Anastacio Laurel vs. Eriberto Misa, etc., the Court, acting on the
petition for habeas corpus filed by Anastacio Laurel and based on the theory that a
Filipino citizen who adhered to the enemy giving the latter aid and comfort during
the
Japanese occupation cannot be prosecuted for the crime of treason defined and
penalized by article 114 of the Revised Penal Code, for the reason (1) that the
sovereignty of the legitimate government in the Philippines and, consequently, the
correlative allegiance of Filipino... citizens thereto was then suspended; and (2) that
there was a change of sovereignty over these Islands upon the proclamation of the
Philippine Republic:
Issues:
the Court, acting on the petition for habeas corpus filed by Anastacio Laurel and
based on the theory that a Filipino citizen who adhered to the enemy giving the
latter aid and comfort during the
Japanese occupation cannot be prosecuted for the crime of treason defined and
penalized by article 114 of the Revised Penal Code, for the reason (1) that the
sovereignty of the legitimate government in the Philippines and, consequently, the
correlative allegiance of Filipino... citizens thereto was then suspended; and (2) that
there was a change of sovereignty over these Islands upon the proclamation of the
Philippine Republic:
Ruling:
that the change of our form of government from Commonwealth to Republic does
not affect the prosecution of those charged with the crime of treason committed
during the Commonwealth, because it... is an offense against the same government
and the same sovereign people, for Article XVIII of our Constitution provides that
'The government established by this Constitution shall be known as the
Commonwealth of the Philippines. Upon the final and complete withdrawal of the...
sovereignty of the United States and the proclamation of Philippine independence,
the Commonwealth of the Philippines shall thenceforth be known as the Republic of
the Philippines';
"This Court resolves, without prejudice to write later on a more extended opinion,
to deny the petitioner's petition, as it is hereby denied, for the reasons above set
forth and for others to be stated in the said opinion, without prejudice to concurring
opinion therein, if any.
Messrs. Justices Paras and Hontiveros dissent in a separate opinion. Mr. Justice
Perfecto concurs in a separate opinion.
 64

WILLIAM F. PERALTA v. DIRECTOR OF PRISONS, GR No. L-49, 1945-11-12

Facts:
Petitioner-defendant, a member of the Metropolitan Constabulary of Manila charged
with the supervision and control of the production, procurement and distribution of
goods and other necessaries... was prosecuted for the crime of robbery
He was found guilty and sentenced to life imprisonment, which he commenced...
to serve on August 21, 1944, by the Court of Special and Exclusive Criminal
Jurisdiction
The petition for habeas corpus is based on the ground that the Court of Special
and Executive Criminal Jurisdiction created by Ordinance No. 7 "was a political
instrumentality of the military forces of the Japanese Imperial Army, the aims and
purposes of... which are repugnant to those aims and political purposes of the
Commonwealth of the Philippines, as well as those of the United States of
America, and therefore, null and void... that the petitioner herein is being
punished by a law created to serve... the political purpose of the Japanese Imperial
Army in the Philippines, and "that the penalties provided for are much (more)
severe than the penalties provided for in the Revised Penal Code."
The City Fiscal of Manila... he City Fisc
The City Fiscal of Manila... submits that the petition for habeas corpus be denied
on the following grounds: That the Court of Special and Exclusive Criminal
Jurisdiction and the Acts, Ordinances and Executive Orders, creating it are not of
a political complexion, for said Court was created, and the crimes and offenses
placed under its jurisdiction were penalized heavily, in response to an urgent...
necessity, according to the preamble of Ordinance No. 7; that the right to appeal in
a criminal case is not a constitutional right; and that the summary procedure
established in said Ordinance No. 7 is not violative of the provision of Article III,
section 1 (18) of the
Constitution of the Commonwealth, to the effect that no person shall be compelled
to be a witness against himself, nor of the provision of section 1 (1) of the same
Article that no person shall be deprived of life, liberty, or property without... due
process of law.
Issues:
The questions which we have to resolve in the present case in the light of the law
of nations are, first, the validity of the creation of the Court of Special and
Exclusive Criminal Jurisdiction, and of the ... summary procedure adopted for
that court; secondly, the validity of the sentence which imposes upon the
petitioner the penalty of life imprisonment during the Japanese military occupation;
and thirdly, if they were then valid, the effect on... said punitive sentence of the
reoccupation of the Philippines and the restoration therein of the Commonwealth
Government.
Ruling:
"The so-called Republic of the Philippines, apparently established and organized as
a sovereign state independent from any other government by the Filipino people,
was, in truth and reality, a government established by the belligerent occupant or
the
Japanese forces of occupation. It was of the same character as the Philippine
Executive Commission, and the ultimate source of its authority was the same the
Japanese military authority and government. As General MacArthur stated in his
proclamation... of October 23, 1944, a portion of which has been already quoted,
'under enemy duress, a so-called government styled as the "Republic of the
 65

Philippines" was established on October 14, 1943, based upon neither the free
expression of the... peoples' will nor the sanction of the Government of the United
States.' Japan had no legal power to grant independence to the Philippines or
transfer the sovereignty of the United States to, or recognize the latent sovereignty
of, the Filipino people,... before its military occupation and possession of the
Islands had matured into an absolute and permanent dominion or sovereignty by a
treaty of peace or other means recognized in the law of nations."
(1) As to the validity of the creation of the Court of Special and Exclusive
Criminal Jurisdiction by Ordinance No. 7, the only factor to be considered is the
authority of the legislative power which promulgated said law or ordinance. It is...
well established in International Law that "The criminal jurisdiction established by
the invader in the occupied territory finds its source neither in the laws of the
conquering or conquered state, it is drawn entirely from the law martial as denned
in the... usages of nations. The authority thus derived can be asserted either
through special tribunals, whose authority and procedure is defined in the military
code of the conquering state, or through the ordinary courts and authorities of
the... occupied district."
A belligerent "occupant may where necessary, set up military courts instead of
the ordinary courts; and in case, and in so far as, he admits the administration of
justice by the ordinary courts, he may nevertheless,... so far as is necessary for
military purposes, or for the maintenance of public order and safety, temporarily
alter the laws, especially the Criminal Law, on the basis of which justice is
administered as well as the laws regarding... procedure." (Oppenheim'si
International Law, Vol. II, sixth edition, 1944, p. 349.)
It is, therefore, evident that the sentence rendered by the Court of Special and
Exclusive Criminal Jurisdiction against the petitioner, imposing upon him the
penalty of life imprisonment, was good and valid, since it was within the admitted
power or... competence of the belligerent occupant to promulgate the law
penalizing the crime of which petitioner was convicted.
In view of all the foregoing, the writ of habeas corpus prayed for is hereby granted
and it is ordered that the petitioner be released forthwith, without
pronouncement as to costs. So ordered.
 66

Republic of Philippines v. Marcos

Summary
holding that no judicially manageable standards existed to "determine the legality of the
actions of a foreign head of state, exercising dictatorial powers under a reign of martial law"
because a dictator "is generally subject to no legal constraints"

Facts

A. Background

On February 7, 1986, a special presidential election was held in the Philippines. There were
allegations of massive fraud against the existing government and outbreaks of violence against those
supporting the opposition. The precise vote count may never be known, but the official tabulation,
which showed an overwhelming victory for Ferdinand Marcos, was rejected by the Philippine
people. On February 25, 1986, realizing perhaps that his regime was nearing its end, Marcos and his
wife left. His successor, President Corazon Aquino, was almost immediately recognized by our
government as the legitimate leader of the Philippines. N.Y. Times, Feb. 26, 1986, at 1, col. 3.

When the Marcoses arrived in Hawaii, they brought along numerous crates filled with currency,
jewels, precious metals and negotiable instruments. These crates were impounded by the United
States Customs Service. Litigation began. On February 28, the Central Bank of the Philippines sued
in the United States District Court for the District of Hawaii, seeking the return of 22 crates full of
Philippine currency. On March 13, the Marcoses' agents petitioned for a writ of mandamus against
the Commissioner of Customs, seeking the release of all the crates. On March 21, the Central Bank
sued for the return of all the crates or their monetary equivalent. All these actions were consolidated
in Hawaii. The mandamus suit against the Commissioner of Customs was decided, on an expedited
basis, against the Commissioner, then reversed by another panel of this court. Azurin v. Von
Raab, 803 F.2d 993 (9th Cir. 1986).

Assets allegedly belonging to the Marcoses, or held for their benefit, began to turn up around the
world. The Republic of the Philippines (the Republic) has begun litigation in Switzerland, state and
federal courts in California, and federal courts in New York, New Jersey and Texas. In each case,
the Republic is trying to recover or freeze specific assets that it regards as property of the Philippines
improperly possessed or controlled by the Marcoses.

B. The Complaint

The complaint in this case was filed on June 16, 1986. Unlike the cases filed in other
jurisdictions, e.g., Republic of the Philippines v. Marcos, 806 F.2d 344, 361 (2d Cir. 1986), this one
does not simply seek the recovery or freezing of specific property. Instead, it alleges that during his
 67

tenure as president of the Philippines, Marcos committed depredations that enabled him to gain
enormous riches at the expense of the Republic and its citizens. Raising various federal and state law
claims, the Republic seeks to have all or part of this wealth returned; it also seeks $50 billion in
punitive damages.

The thrust of the Republic's claim is that the Marcoses abused their authority, depriving the
Philippines and its people of wealth that is rightfully theirs. Paragraph 12 of the complaint charges
that "Mr. Marcos used his position of power and authority to convert and cause to be converted, to
his use and that of his friends, family, and associates, money, funds, and property belonging to the
Philippines and its people." This allegation is incorporated into, and forms the basis of, every claim
for relief in the complaint. In addition, plaintiff alleges as follows:

[T]he Philippines existed as a sovereign government and thus constituted a RICO "enterprise". . . .
Defendants conducted or participated . . . in the conduct of the affairs of the Philippines through a pattern of
racketeering activity. . . . [Complaint ¶¶ 28, 29(a).]

Mr. Marcos represented on countless occasions to the Philippines and its people that he was governing and
would govern fairly and honestly, pursuant to his oath of office and the Constitution and Laws of the
Philippines. He further made numerous and frequent declarations to his people that he had never taken
money, property, or funds belonging to the Philippines or its people for his own personal use, nor that of his
friends, family and associates. [ Id. ¶ 49.]

Mrs. Marcos [as Governor of Manila] made similar representations of honesty, integrity and willingness to
act within and not above the laws to the people of the Philippines residing in Manila. [ Id. ¶ 50.]

[The Marcoses] intended that the Philippines and its people rely on these misrepresentations and thereby
permit Mr. and Mrs. Marcos to remain in power and positions of authority. [ Id. ¶ 51.]

They further intended that the people of the Philippines would be deceived and not realize that Mr. and
Mrs. Marcos, and their accomplices, family, and associates were plundering the wealth of the country to
enrich themselves at the expense of the Philippines and its people. [ Id.]

Plaintiff [the Republic] relied to its detriment on the representations of Mr. and Mrs. Marcos, and their
accomplices, by permitting them to remain in positions of power and authority for twenty years and by
allowing, through ignorance, the plunder of the country. [ Id. at ¶ 52.]

Mr. Marcos as President, and Mrs. Marcos as Governor of Manila, occupied positions of trust and
confidence as to the government and people of the Philippines. [ Id. at ¶ 57.]

Mr. and Mrs. Marcos breached that trust and confidence by committing numerous acts of fraud, deceit,
conversion, civil conspiracy, acts of racketeering, and other unlawful acts [and that as a consequence
thereof plaintiff] permitted them to remain in positions of power and to conduct the affairs of the
Philippines virtually unchecked. [ Id. ¶¶ 58-59.]

Mr. and Mrs. Marcos, by virtue of their position [sic] as President of the Philippines and Governor of Manila,
respectively, occupied positions of trust as to the Philippines and its people. [ Id. ¶ 62.]

[Before] Mr. Marcos assumed the office of President of the Philippines . . . he took the Oath of Office. . . . By
accepting the duties and obligations imposed by the oath, in consideration for the remuneration . . .
provided by Philippine law, Mr. Marcos entered into an implied contract with the Philippine government to
use the power of the Presidency according to law, in good faith, and not for personal aggrandizement.
[ Id. ¶¶ 71-72.]

The complaint also alleges that during Marcos' rule, he and his wife converted and caused to be
converted property worth $1.55 billion belonging to the Philippine government and its citizens. Most
of this, approximately $1.5 billion, allegedly went into Swiss bank accounts; four million dollars
went to buy a house in Beverly Hills; some $800,000 went into two bank accounts at Lloyds Bank in
California; and property worth $7 million is in the Hawaii crates.

Only Ferdinand and Imelda Marcos are charged with having participated in all of these transactions.
Defendants Ramon Azurin and Gregorio Araneta are alleged to have been the Marcoses' agents for
bringing the crates of money and jewelry into Hawaii. Defendants Antonio Floriendo, Diosdado
Ordonez, Calno Holdings N.V., Krodo Properties N.V., and Al Djebel Corp. (collectively the "minor
defendants") participated only in the acquisition and holding of the Beverly Hills property. Lloyds
 68

Bank was named as a defendant only because it held the two accounts in the name of Mrs. Marcos.
There are no specific allegations of wrongdoing against Ancor Holdings, Inc.

On this foundation, the Republic strives to build eleven claims. Only the first three, based on the
Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1961-1968 (1982), are
grounded on federal law; the remainder are pendent. The first RICO claim charges the Marcoses and
the minor defendants with conducting a RICO enterprise, consisting either of the Philippine
government itself or, alternatively, of an association-in-fact made up of the defendants with an
existence apart from the racketeering activity in which they allegedly engaged. The specific
activities alleged are: (a) the transfer, by mail and wire, of converted funds, which the Republic
claims amounted to mail or wire fraud; (b) the transportation of the crates to Hawaii, which the
Republic claims was the knowing transportation of stolen goods in foreign commerce; (c) the
acquisition of the Beverly Hills property by Calno (later transferred to Krodo and Al Djebel) with
funds that the Republic claims were stolen, and so known to be by all the defendants involved; (d)
the knowing concealment of stolen goods moved in foreign commerce; and (e) the sale of a deed of
trust to the Beverly Hills property (part of Calno's disposition of the property) knowing that the deed
was stolen or taken by fraud.

The second federal claim charges investments of funds produced by racketeering into two
"enterprises": the Beverly Hills property and the Lloyds Bank accounts. The third claim alleges a
conspiracy among the defendants to conduct the RICO enterprise and invest the funds.

The remainder of the complaint propounds various state law theories of recovery on the same
allegations of fact. They include, in particular, requests that the court impose a constructive trust on
the disputed assets and require an accounting of the defendants.

C. District Court Proceedings

The Republic moved for a preliminary injunction to prevent the transfer of property held anywhere
in the world by or on behalf of the Marcoses. On June 25, 1986, the district court granted the
injunction. It held that RICO established a basis for federal jurisdiction and the pendent causes of
action entitled the Republic to an injunction. The court based the preliminary injunction on the
pendent claims for constructive trust and accounting, finding that the Republic had a substantial
likelihood of prevailing. It also found that the Marcoses' alleged propensity to move assets would
irreparably harm the Republic if the injunction were not granted. The Republic had made no attempt
to win an attachment of any assets and the district court held that it was not required to do so.

Defendants appeal, raising four major contentions. First, they argue that the district court had no
jurisdiction over this action. They contend that the RICO claims are so remote as to be frivolous.
Second, they argue that even if plaintiff has made a colorable claim sufficient to establish subject
matter jurisdiction, the district court abused its discretion by issuing the injunction. They argue that
the plaintiff's case is just too weak, particularly when their likely affirmative defenses are
considered, to support a finding that it will probably succeed on the merits. Third, defendants argue
that the injunction was improvidently granted because the Republic will not sustain irreparable harm
if the injunction is dissolved, the Marcoses having agreed to a freeze of their assets for the Republic
to litigate the case in the Philippines. Finally, defendants contend that, in any case, the injunction —
covering the Marcoses' property worldwide — is far too broad, sweeping in a multitude of assets that
have no connection to the pendent state law claims.

Discussion

A district court may grant a preliminary injunction when the movant demonstrates probable success
on the merits and the possibility of irreparable injury. San Diego Comm. Against Registration the
Draft v. Governing Bd., 790 F.2d 1471, 1473 n. 3 (9th Cir. 1986). Where the balance of relative
hardships "tips decidedly toward the plaintiff," however, "the plaintiff need not show as robust a
likelihood of success on the merits." Benda v. Grand Lodge of the Int'l Ass'n of Machinists, 584 F.2d
308, 315 (9th Cir. 1978), cert. dismissed, 441 U.S. 937, 99 [Link]. 2065, 60 [Link].2d 667 (1979). As
often noted, preliminary injunctions may be issued at any point on a continuum along which the
likelihood of success varies inversely with the potential of harm to the plaintiff. Id. In this case, the
district court based its decision to grant a preliminary injunction on its conclusion that the
Philippines had a substantial likelihood of success on both its RICO and pendent state claims, and
 69

that there was a "substantial danger" of irreparable harm. The court made no findings on the balance
of relative hardships necessary to support an injunction at the opposite end of the spectrum.

The grant of a preliminary injunction may be reversed if the district court abused its discretion or
based its decision on an erroneous legal standard or on clearly erroneous findings of fact. Sierra On-
Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1421 (9th Cir. 1984). Legal issues underlying
the preliminary injunction decision are reviewed de novo. International Molders' Allied Workers'
Local Union No. 164 v. Nelson, 799 F.2d 547, 551 (9th Cir. 1986).

I. SUBJECT MATTER JURISDICTION

The defendants contend that the Republic's RICO claims are so frivolous that they cannot form the
basis of jurisdiction in the district court. But we view jurisdictional claims under an exceedingly
generous standard at this stage of the proceedings. As we stated in Keniston v. Roberts, 717 F.2d
1295, 1298 (9th Cir. 1983), "the complaint must fulfill only two criteria: (1) it must `claim a right to
recover under the Constitution and laws of the United States,' and (2) the claim must not be `wholly
insubstantial and frivolous.' Jackson Transit Authority v. Local Division 1285, 457 U.S. 15, 21 n. 6
[102 [Link]. 2202, 2206 n. 6, 72 [Link].2d 639] (1982) ( quoting Bell v. Hood, 327 U.S. 678, 681, 682-
83 [66 [Link]. 773, 775, 776, 90 [Link]. 939] (1946))."

While generous, this standard is not toothless. We regularly uphold the dismissal of claims where
they are so insubstantial that the district court plainly lacks jurisdiction. See, e.g., Ellis v.
Cassidy, 625 F.2d 227 (9th Cir. 1980); Standage Ventures, Inc. v. Arizona, 499 F.2d 248 (9th Cir.
1974). However, we deem claims insubstantial only where the law is clear or where a plaintiff has
persistently failed to allege an essential element. Under this narrow standard, we cannot conclude
that all the RICO claims made by plaintiff here are frivolous. The law is neither so clear, nor are the
allegations of the complaint so patently and irremediably defective, that we can say with confidence
that plaintiff has failed to establish a colorable basis for jurisdiction in the district court. Assuming
the truth of the matters alleged in the complaint, as we must, we find all of the elements of a RICO
violation: the existence of a criminal enterprise, Complaint ¶¶ 28, 29(b); the conduct of its affairs
through a pattern of racketeering activity, id. ¶¶ 29(a), 29(c), 30; and injury caused thereby, ¶ 32.
Plaintiff's complaint seems to allege at least prima facie RICO violations by the Marcoses.

The minor defendants, in addition to being accused of participating in some of the specific instances of
racketeering, are all charged with conspiracy to violate RICO. 18 U.S.C. § 1962(d). The complaint
specifically alleges an agreement to violate the law and describes several alleged overt acts that furthered the
conspiracy. There is thus a prima facie case sustaining jurisdiction over the minor defendants as well.

Where, as here, plaintiff's claim is based upon transactions that take place fully or partly outside the
United States, we must make one further inquiry: whether our law was meant to reach the conduct in
question insofar as it is extraterritorial in nature. See, e.g., SEC v. United Financial Group, Inc., 474
F.2d 354, 355 (9th Cir. 1973); Des Brisay v. Goldfield Corp., 549 F.2d 133, 135 (9th Cir. 1977).
Here the alleged thefts by Mr. Marcos and his confederates took place in the Philippines and quite
probably that conduct cannot be reached by U.S. law. However, plaintiff does not base its claim
directly upon the alleged thefts in the Philippines. Its claim is based upon conduct that it charges
took place in the United States: mail fraud and transportation of stolen property across international
borders in violation of 18 U.S.C. § 1341, 1343, 2314, 2315.

Assuming that the property in question is in fact stolen, the charged acts — all of which took place
within the United States — would clearly violate U.S. law. Again, assuming that the allegations of
the complaint are true, the violations appear to be sufficient predicate acts under RICO. When all is
said and done, it may well prove otherwise. But at this early stage of the proceedings, where
predicate acts are alleged to have been committed within the United States, we cannot say that the
district court was without jurisdiction to entertain plaintiff's RICO claims.

II. PROBABILITY OF SUCCESS ON THE MERITS A.

This is a highly unusual case. The current government of a friendly foreign nation is pursuing that
nation's former ruler, seeking to litigate in our courts the legality of his actions during more than 20
years in office. While Mr. Marcos had the title of president he was, in the words of Rafael Fernando,
the West Coast representative of the Philippine Commission on Good Government, "the dictator of
the Government of the Philippines and personally controlled the said government." Declaration of
 70

Rafael Fernando in Support of Temporary Restraining Order and Order to Show Cause (Fernando) ¶
7. During much of Mr. Marcos' tenure in office, he governed by decree under a regime of martial
law. Id. As plaintiff alleges, during this time the Marcoses were able "to conduct the affairs of the
Philippines virtually unchecked." Complaint ¶ 59.

A few of Marcos' alleged misdeeds, as charged in the complaint and the Fernando declaration, may
amount to nothing more than common fraud or theft accomplished without the exercise of
governmental authority. But the vast majority of the allegedly illegal acts are quite different in
character; they are activities that Marcos could only have undertaken pursuant to his powers as
President of the Philippines: expropriation of private property; creating public monopolies;
"grant[ing] government favors, contracts, licenses, loans, and other public benefits." Fernando ¶ 8. In
this regard, perhaps the most telling aspect of plaintiff's case is its first claim for relief. Plaintiff there
alleges that "the Philippines existed as a sovereign government and thus constituted a RICO
`enterprise' within the meaning of 18 U.S.C. § 1961(4)" and that "[d]efendants conducted, or
participated directly or indirectly in the conduct of the affairs of the Philippines through a pattern of
racketeering activity. . . ." Complaint ¶¶ 28, 29. Plaintiff is thus claiming that the Philippine
government headed by Marcos was a criminal enterprise under U.S. law.

The Republic alleges in the alternative that the defendants, except Lloyds Bank, were part of an association in
fact. But under either theory, the Republic alleges that the defendants conducted the affairs of the Philippines
for their own benefit, and urges us to examine closely the conduct of that government in the past to decide the
motivations for its actions.

Moreover, plaintiff presents issues that are different in character, not merely in degree, from the
normal case brought under RICO and the various state causes of action. Thus, paragraph 72 of the
Complaint puts squarely in issue the manner in which Mr. Marcos discharged his responsibilities as
President of the Philippines. Citing the oath of office Mr. Marcos took in 1965, plaintiff charges that
he "entered into an implied contract with the Philippine government to use the power of the
Presidency according to law, in good faith, and not for personal aggrandizement." Paragraph 73 then
charges that "Mr. Marcos breached this contract."

Paragraph 51 of the complaint charges that Mr. and Mrs. Marcos made numerous misrepresentations
"to the Philippines and its people," with the result that they were allowed "to remain in power and
positions of authority." Paragraph 52 charges that "[p]laintiff relied to its detriment on [these
misrepresentations], by permitting them to remain in positions of power and authority for twenty
years and by allowing, through ignorance, the plunder of the country." Mr. Fernando, in his
declaration, charges that the "amounts purloined by Mr. Marcos are of such significance as to affect
the general economic conditions of the Republic of the Philippines and its people." Fernando ¶ 8.

Plaintiff's case is a ringing indictment of Mr. Marcos' conduct as President of the Philippines during
his 20 years in office. As such, it challenges not merely individual misdeeds or indiscretions but the
very way in which Mr. Marcos wielded governmental power, retained that power and ran the
Philippine government. This raises a variety of serious and sensitive questions about the ability of
our courts to adjudicate this issue, and the propriety of their doing so. In effect, we must consider
whether our courts are the appropriate forum for adjudicating what appears to be at least in part a
political dispute between the Philippines' current government and its former ruler.

B.

Our jurisdiction in this case is based solely on RICO, a statute that does not authorize the court to
grant injunctive relief. Religious Technology Center v. Wollersheim, 796 F.2d 1076, 1088-89 (9th
Cir. 1986), cert. denied, ___ U.S. ___, 107 [Link]. 1336, 94 [Link].2d 187 (1987). Thus, as the district
court properly recognized, if an injunction is to be issued at all, it must be on the basis of the pendent
state claims. Nevertheless, probability of success on the RICO claims is not entirely irrelevant. The
purpose of a preliminary injunction is to preserve the court's power to render meaningful relief after
a trial on the merits. 11 C. Wright A. Miller, Federal Practice Procedure § 2947 (1973). If the
federal claims are exceedingly weak, or subject to meritorious affirmative defenses, they are likely to
succumb to a motion to dismiss or an early motion for summary judgment. In that event, the pendent
state claims may well be subject to dismissal also. See, e.g., Kelley v. IBEW, 803 F.2d 516, 519 (9th
Cir. 1986); Arizona v. Cook Paint Varnish Co., 541 F.2d 226, 227-28 (9th Cir. 1976), cert.
denied, 430 U.S. 915, 97 [Link]. 1327, 51 [Link].2d 593 (1977) (court may not reach out to decide state
law claims if court and litigants have not already spent considerable time and effort on the case).
 71

For purposes of our discussion, we need not, however, differentiate between the state and federal
causes of action because all of plaintiff's claims hinge on certain key allegations of the
complaint. See pp. 1474-75, supra. Although these allegations are made in elaborate detail, they
have one common nucleus: Plaintiff is claiming that the Marcoses (with the help of their
confederates) acquired substantially all of their wealth illegally. Thus, in order to establish the
requisite predicate acts in the United States for purposes of RICO — mail fraud, wire fraud,
transportation of stolen property — plaintiff must be able to show that the assets in question were in
fact stolen or that the transactions involving wire and the mails involved property to which neither
the Marcoses nor their confederates were legally entitled. Similarly, to establish a constructive trust
under California law, plaintiff must show that the property in question was gained by "fraud,
accident, mistake, undue influence, the violation of a trust, or other wrongful act." [Link] §
2224 (West App. 1987). To be entitled to an accounting, plaintiff must show that the defendants
acquired the assets by fraud. K. King G. Shuler Corp. v. King, 259 [Link].2d 383, 396, 66
[Link]. 330, 338 (1968). If plaintiff cannot show that the property was obtained illegally, all of its
claims — state and federal — will fail.

While plaintiff has made sweeping allegations of illegality, it has not attempted to match particular
illegal acts with specific property in California or elsewhere. Instead, plaintiff relies on what it calls
a "net worth" analysis to show that virtually all of the Marcoses' wealth was acquired illegally.
Plaintiff asserts that Marcos had a net worth of $60,000 in 1966, a year after taking office; it claims
that he now has a net worth over $1.5 billion. In the meantime, Marcos earned (and declared on his
tax returns) income of some $337,000 from his salary as President of the Philippines. Plaintiff
therefore argues that practically everything the Marcoses own must have been stolen and therefore
belongs to the Philippines.

Plaintiff seeks to bolster this net worth analysis with the Fernando declaration. In his declaration,
Mr. Fernando asserts that the Marcos presidency was marked by "widespread purloining of funds
and properties which were and are the property of the Philippine government." Fernando ¶ 8.
Describing the illegal activity, Mr. Fernando states:

The said taking of Government properties was effected by a range of techniques, including but not limited
to accepting payments, bribes, kickbacks, interests in business ventures, and other things of value in
exchange for the grant of government favors, contracts, licenses, franchises, loans, and other public
benefits; expropriating outright private property for the benefit of persons beholden to or fronting for Mr.
Marcos, the said expropriation being at times effected by violence or the threat of violence or incarceration;
arranging loans by the Philippine Government to private parties beholden to and fronting for Mr. Marcos;
direct raiding of the public treasury; diverting loans, credits and advances from other governments intended
for use by the Philippine Government; creating public monopolies placed in the hands of persons beholden
to and fronting for Mr. Marcos. The said actions of the defendants were in violation of the laws of the
Republic prohibiting malversation and corrupt practices.

Fernando ¶ 8. Mr. Fernando provides no direct evidence to support this litany of offenses; his only
knowledge of these "facts" comes from "countless newspaper and firsthand accounts" relating
them. Id.

In order to succeed under its "net worth" theory, plaintiff must show that tracing is unnecessary
because practically all of the Marcoses' wealth was obtained illegally. Plaintiff's theory breaks down
if Marcos can show that he acquired a substantial portion of his wealth legally or if the court is
unable to adjudicate the legality or illegality of a substantial portion of Marcos' acquisitions. In that
case, plaintiff would have the burden of linking up specific acts of illegality with specific property,
something plaintiff has not attempted.

We note, without addressing them, defendants' numerous challenges to the sufficiency of plaintiff's
prima facie case. We turn instead to what we consider to be the heart of this case: plaintiff's
assertion, and the district court's assumption, that all of the Marcoses' wealth must have been stolen.
Specifically, we consider whether plaintiff's multitudinous claims of illegality can all be adjudicated
by the district court or whether, as Marcos strenuously contends, they are subject to dismissal under
the related act of state and political question doctrines. If we determine that a substantial portion of
Marcos' conduct is likely to be shielded by one or both of these doctrines, plaintiff's net worth theory
would collapse, and with it its probability of success on the merits, at least insofar as its case is now
framed.
 72

Defendants contend the Republic failed adequately to allege each element of its prima facie RICO case: the
commission of predicate offenses, the existence of a criminal enterprise, and its operation through a pattern of
racketeering activity. They also contend that the plaintiff failed to allege the agreement required for a charge
of conspiracy, and that the defendants' investments in this country were not investments in an "enterprise."
Defendants also contend that the Republic insufficiently alleged the fiduciary duty necessary to a claim for
accounting, and the misappropriation of funds necessary for the imposition of a constructive trust.

C.

In Underhill v. Hernandez, 168 U.S. 250, 252, 18 [Link]. 83, 84, 42 [Link]. 456 (1897), the Court
pronounced concisely the act of state doctrine: "Every sovereign State is bound to respect the
independence of every other sovereign State, and the courts of one country will not sit in judgment
on the acts of the government of another done within its own territory." See also Hatch v. Baez, 7
Hun. 596, 599 ([Link]. Div. 1876) ("by the universal comity of nations and the established rules
of international law, the courts of one country are bound to abstain from sitting in judgment on the
acts of another government done within its own territory"). Although the doctrine has been modified
in the intervening years, Underhill still expresses its essence as it is applied in our courts today.

As late as 1964, the Court noted that "[n]one of this Court's subsequent cases in which the act of state doctrine
was directly or peripherally involved manifest any retreat from Underhill." Sabbatino, 376 U.S. at 416, 84
[Link]. at 934.

As the court explained in Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 423, 84 [Link]. 923,
938, 11 [Link].2d 804 (1964), the doctrine has "`constitutional' underpinnings. It arises out of the
basic relationships between branches of government in a system of separation of powers. It concerns
the competency of dissimilar institutions to make and implement particular kinds of decisions in the
area of international relations." The doctrine, as developed by precedent, expresses a strong sense
that in questioning the validity of foreign acts of state the judiciary may hinder this country's
international diplomacy and "embarrass the United States in the eyes of the world." International
Ass'n of Machinists Aerospace Workers v. OPEC, 649 F.2d 1354, 1358 (9th Cir. 1981), cert.
denied, 454 U.S. 1163, 102 [Link]. 1036, 71 [Link].2d 319 (1982).

The act of state doctrine applies with as much force to the state law claims as it does to those based on federal
law. As the Court stated in Oetjen v. Central Leather Co., 246 U.S. 297, 303, 38 [Link]. 309, 311, 62 [Link].
726 (1918): "The principle that the conduct of one independent government cannot be successfully questioned
in the courts of another is as applicable to a case involving the title to property brought within the custody of a
court . . . [as it is in cases] in which claims for damages were based upon acts done in a foreign country. . . ."

Plaintiff's case implicates the act of state doctrine in its most fundamental sense. In order to resolve
plaintiff's various claims against Marcos, the court will have to adjudicate whether Marcos' actions
as President were lawful under Philippine law. A number of the acts plaintiff challenges are purely
governmental ones, such as expropriation of property and creation of public monopolies. These were
not merely the acts of Ferdinand Marcos, private citizen, while he happened to be president; they
were an exercise of his authority as the country's head of state and, as such, were the sovereign acts
of the Philippines. As the Second Circuit recently noted, to the extent that "Marcos's wealth was
obtained through official expropriation decrees or public monopolies," they were public
acts. Marcos, 806 F.2d at 359.

The dissent points out, quite correctly, that the defendants bear the burden of proving that conduct is covered
by the act of state doctrine. Nelson Dissent at 1495. However, we base our analysis on plaintiff's own
characterization of defendants' acts, power and status. See p. 1479 supra. In gauging the likelihood of success
on the merits, we simply adopt plaintiff's view as to what the evidence is likely to show.

Moreover, resolution of various issues raised by plaintiff could interfere with the conduct of foreign
relations by the political branches of our government or otherwise entangle the judiciary in foreign
affairs. Thus, it could well embarrass the United States for the court to hold, as plaintiff would have
us do, that a foreign government that the United States recognized and considered its ally for many
years, with which it entered into various treaties and otherwise had extensive dealings, was actually
a criminal enterprise under our law. Also, this litigation may not be concluded for years. It is,
therefore, difficult to predict what effects the court's ruling will have on the political situation in the
Philippines or on our relations with that country at that time. Our decision will be relatively
innocuous only if it is in favor of the plaintiff, if our government's attitude toward the Philippines is
unchanged and if the current Philippine government is still in power.
 73

Plaintiff nevertheless advances a variety of arguments to the effect that this doctrine is not
applicable. We consider each of its contentions in turn.

1. Plaintiff first argues that, in the words of the district judge, "the court is [not] going to be asked to
decide anything about the affairs of the government of the Philippines. The question is what did Mr.
Marcos do with the assets and the property and the money that he shouldn't have done." Trans. June
16, 1986, at 19, E.R. at 84. In support of this argument, plaintiff cites DeRoburt v. Gannett Co., 733
F.2d 701 (9th Cir. 1984), cert. denied, 469 U.S. 1159, 105 [Link]. 909, 83 [Link].2d 923 (1985);
and Sharon v. Time, Inc., 599 F. Supp. 538, 546 (S.D.N.Y. 1985). Both cases were libel suits by
officials of foreign governments challenging news reports alleging that they had engaged in
misconduct in the course of doing their jobs. Both officials denied committing the misconduct and
the only question presented was whether they had in fact done so. In holding that the act of state
doctrine was inapplicable, the DeRoburt and Sharon courts noted that validity of the acts was not at
issue since everyone agreed that the acts, if committed, were illegal. The cases therefore
resolved themselves into a simple dispute about whether DeRoburt and Sharon in fact did what they
were reported to have done. As the court noted in Sharon, "[t]he issue in this litigation is not whether
such acts are valid, but whether they occurred." 599 F. Supp. at 546.

In DeRoburt, the act was the making of an illegal loan. 733 F.2d at 702. In Sharon, it was abetting the
massacre of civilian refugees in West Beirut after the Israeli invasion of Lebanon. 599 F. Supp. at 542-43.

Our case is quite different. At issue is not merely whether Marcos did what he is alleged to have
done, but whether it was legal for him to do so as the country's dictator. Or, to put the matter
somewhat differently, plaintiff cannot establish that the Marcoses obtained all of their wealth
illegally without calling into question the legality of many of Mr. Marcos' acts as President of the
Philippines. Unlike the DeRoburt and Sharon courts, the district court here would have to pass on
the validity of Mr. Marcos' acts, not merely determine whether he committed them.

In DeRoburt our court clearly drew this distinction. We approved the dismissal of the third amended
complaint involving plaintiff's claims that "defendant falsely accused the Republic of Nauru of secretly
backing the separation of the Marshall Islands from Micronesia, [and] of making an illegal loan to the
Marshall Islands in 1974, and falsely accused himself of making secret and illegal loans to the Marshall
Islands in 1974 and 1978." 733 F.2d at 703. We held that "litigation of those claims would involve serious
intrusion into the propriety of the acts and policies of a foreign state and thus clearly call into play the act of
state doctrine." Id.

2. Plaintiff next argues that the act of state doctrine is inapplicable because Marcos' acts, to the
extent they were illegal under Philippine law, were ultra vires and therefore not " public acts . . .
[undertaken] in the exercise of governmental authority." Alfred Dunhill of London, Inc. v. Republic
of Cuba, 425 U.S. 682, 706, 96 [Link]. 1854, 1867, 48 [Link].2d 301 (1976) (opinion of White, Powell
and Rehnquist, JJ., and Burger, C.J.) (emphasis in original). This argument proves too much. Since
the act of state doctrine prohibits inquiry into the legality of official governmental acts, such acts
surely cannot be official only if they are legal. This theory, if accepted, would emasculate the act of
state doctrine.

Plaintiff also relies on a statement in Sharon to the effect that "a fairly stringent degree of formality may be
required in proving [an officially authorized] act by a public official." 599 F. Supp. at 544. We reject this
standard for three reasons. First, it was dictum. As discussed above, Sharon was simply not a case involving
the validity of official acts; Judge Sofaer's ruminations as to how the doctrine would operate if it were
applicable are interesting but beside the point. Second, the Second Circuit, in a recent opinion, has expressed
skepticism about this portion of the Sharon opinion. Thus, recognizing that " Dunhill appears to require a
certain amount of formality to indicate that the act is in fact the act of the sovereign," the Second Circuit
noted that it is "probably not the degree of formality suggested by former Judge Sofaer in Sharon, 599 F.
Supp. at 544-45." Marcos, 806 F.2d at 359. Finally, formality is required not as an end in itself, but to show
that these were indeed governmental acts and not private ones. Even Sharon recognized that the requirement
of formality is usually only applicable where an act of state is alleged "with respect to a subject not normally
controlled by public acts." 599 F. Supp. at 544. Where the acts in question are inherently governmental —
such as expropriation of private property or creation of public monopolies — the formality requirement serves
no purpose. Such acts can only be effective if they were recognized and treated as official governmental acts.
Here, Mr. Marcos could only have enriched himself by such acts if they were recognized and accepted as an
exercise of his governmental authority.

In Banco de Espana v. Federal Reserve Bank, 114 F.2d 438 (2d Cir. 1940), the court rejected a
similar request by a Spanish bank, backed by Spain's current government, seeking to set aside a
 74

transfer of silver bullion by an official of the country's prior government. Banco de Espana argued
that the former Minister of Finance had been selling the silver in violation of Spanish law. The court
refused to second-guess the legality of the Finance Minister's action, nothing as follows:

It should make no difference whether the foreign act is, under local law, partially or wholly, technically or
fundamentally, illegal. No such distinction may be gleaned from the cases. So long as the act is the act of the
foreign sovereign, it matters not how grossly the sovereign has transgressed its own laws.

Id., at 444. See also Bernstein v. Van Heyghen Freres S.A., 163 F.2d 246, 249-50 (2d Cir.) (rejecting
attack on Nazi confiscation based on failure to comply with German law), cert. denied, 332 U.S.
772, 68 [Link]. 88, 92 [Link]. 357 (1947).

Similarly in Hatch v. Baez counsel argued that

[i]t is only to the extent of his just and proper exercise of constitutional and legal powers that the president
of Dominica [sic] is to be regarded as the executive of that republic. No unjust or oppressive act committed
by his direction upon any one of his subjects, or upon others entitled to protection, is in any true sense the
act of the executive in his public and representative capacity, but of the man simply, rated as other men are
rated in private stations; for in the perpetration of unauthorized offenses of this nature, he divests himself
of his "regal prerogatives," and descends to the level of those untitled offenders, against whose crimes it is
the highest purpose of government to afford protection.

7 Hun. at 596-97 (emphasis in original) (citations omitted). The court flatly rejected this argument, noting as
follows:

The acts of the defendant for which he is sued were done by him in the exercise of that part of the
sovereignty of St. Domingo which belongs to the executive department of that government. To make him
amenable to a foreign jurisdiction for such acts, would be a direct assault upon the sovereignty and
independence of his country.

Id., at 599.

Plaintiff argues, however, that Mr. Marcos' actions were not the sovereign acts of the Philippines
because they were not authorized by Philippine law. Banco de Espana rejected this very argument:

[Banco de Espana] contends that the acts, if they took place, were unlawful under Spanish law, that under
Spanish law an illegal act by a public officer strips him of his official cloak and makes his act a private one,
and that such a "private" act cannot be deemed governmental. But this is only a variation of the argument
we have just rejected. By a "governmental act" is meant no more than a step physically taken by persons
capable of exercising the sovereign authority of the foreign nation. The officials of the then-recognized
Spanish government possessed such authority. If they purported to act in their official capacity, that physical
fact precludes us from examining the validity of their acts under local law. The Spanish local law as a whole
is of no concern to us, and it follows that we may not employ one doctrine of that law — that the illegal act
of a public officer is deemed a private act — in order to gainsay the physical occurrence of an official act by
an officer of the Spanish government.

114 F.2d at 444. Cf. West v. Multibanco Comermex, S.A., 807 F.2d 820, 828 (9th Cir. 1987) (court
should, as a matter of comity, "presume that Mexican officials are acting in a manner consistent with
the requirements of Mexican law").

As plaintiff admits, Mr. Marcos was the country's ruler for some two decades. He clearly was
"capable of exercising the sovereign authority" of the Philippines during that time. In Underhill v.
Hernandez, the Court noted that the act of state doctrine "[cannot] be confined to lawful or
recognized governments. . . . The immunity of individuals from suits brought in foreign tribunals for
acts done within their own States, in the exercise of governmental authority, whether as civil officers
or as military commanders, must necessarily extend to the agents of governments ruling by
paramount force as a matter of fact." 168 U.S. at 252, 18 [Link]. at 84. This would seem to apply a
fortiori to Mr. Marcos, who was the recognized head of the Philippine government throughout the
relevant period. See DeRoburt, 733 F.2d at 703 (approving dismissal of third amended complaint
because allegations, inter alia, that defendant falsely accused the president of Nauru of making secret
 75

and illegal loans to the Marshall Islands "clearly call into play the acts [sic] of state
doctrine"); West, 807 F.2d at 828 ("[t]he public capacity of the actors involved . . . may serve to
trigger the act of state doctrine").

The court seemed to go even farther, suggesting that even a putative revolutionary government that failed to
gain control of the country would be entitled to protection from liability for actions taken in pursuit of the
revolution. 168 U.S. at 252-53, 18 [Link]. at 84-85.

3. Plaintiff advances the somewhat related argument that the act of state doctrine does not apply
because the acts in question were not in the "public interests" of the Philippines, having been
undertaken by Mr. Marcos for venal, immoral or selfish purposes. The dissent agrees with plaintiff,
apparently arguing that acts done by an official "for his own private personal gain" are unofficial
acts which may be scrutinized by this court. Nelson Dissent at 1492-93.

The dissent relies upon the Fifth Circuit's decision in Jimenez v. Aristeguieta, 311 F.2d 547 (5th Cir.
1962), cert. denied, 373 U.S. 914, 83 [Link]. 1302, 10 [Link].2d 415 (1963), as support for its contention that
official acts of a former dictator do not include acts done for personal gain. Nelson Dissent at 1493-94.
Although the alleged misdeeds of Jimenez and Marcos are similar in nature, the contexts in which judicial
review is sought are very different.
In Jimenez, the Government of Venezuela sought the return to Venezuela of its former dictator pursuant to its
Treaty of Extradition with the United States. 311 F.2d at 550-51. The Fifth Circuit held that the act of state
doctrine did not bar the court, in habeas corpus review of extradition proceedings, from determining whether
there was probable cause of guilt such that extradition to Venezuela was proper. Id. at 557. The court relied
on the fact that the political branches had, pursuant to a treaty, expressly contemplated judicial review of the
official's actions. Id. at 558. The act of state doctrine is clearly not a bar under such circumstances. See
Sabbatino, 376 U.S. at 428, 84 [Link]. at 940 (act of state doctrine does not bar inquiry into validity of
sovereign act where there is a treaty defining controlling international law). Here, there is no treaty directing
the court to act.

Of course, not everything a public official does is an official act; to the extent Mr. Marcos engaged
in actions as a private citizen, he is subject to suit like anyone else. See DeRoburt, 733 F.2d at 704.
Thus, if he entered the public treasury at gunpoint and walked out with money or property belonging
to the Philippines, he would not be protected by the act of state doctrine. However, if he gained
access to the public monies by statute, decree, resolution, order, or some other "governmental act" as
president, the act of state doctrine would be triggered. See Dunhill, 425 U.S. at 693-95, 96 [Link]. at
1860-61; West, 807 F.2d at 828; Restatement of Foreign Relations Law of the United States § 469,
note 3 ([Link] No. 7, 1986).

Once the acts in question are identified as governmental in character, our courts have uniformly
refused to question the integrity or nobility of the reasons underlying them. See, e.g., Clayco Petrol.
Corp. v. Occidental Petrol. Corp., 712 F.2d 404, 407 (9th Cir. 1983) (refusal to inquire whether
foreign government's award of oil concession motivated by bribery), cert. denied, 464 U.S.
1040, 104 [Link]. 703, 79 [Link].2d 168 (1984). "[S]uch inquiries by this court into the authenticity and
motivation of the acts of foreign sovereigns would be the very sources of diplomatic friction and
complication that the act of state doctrine aims to avert." Occidental Petrol. Corp. v. Buttes Gas Oil
Co., 331 F. Supp. 92, 110 ([Link]. 1971), aff'd, 461 F.2d 1261 (9th Cir.), cert. denied, 409 U.S.
950, 93 [Link]. 272, 34 [Link].2d 221 (1972), quoted with approval in Northrop Corp. v. McDonnell
Douglas Corp., 705 F.2d 1030, 1047 (9th Cir.), cert. denied, 464 U.S. 849, 104 [Link]. 156, 78
[Link].2d 144 (1983).

The governmental acts of a country's chief executive necessarily reflect complex political and policy
choices. That one of the motives behind a particular governmental act may have been selfish, or that
it was intended to serve otherwise improper ends, does not make that act any less a pronouncement
of the sovereign or render it any less entitled to respect as such from other government. See
West, 807 F.2d at 828; Restatement § 469, comment 7. It would greatly weaken the act of state
doctrine if parties could put in question the validity of official government acts simply by attacking
the motives of the government officials who undertake them.

4. Plaintiff next advances the argument that, whatever force the act of state doctrine may have when
it is invoked by the government of the country whose actions are questioned, it has little or no force
here, where it is the Philippines itself that is asking us to look into the actions of its former
dictator. The acquiescence of the country's current government, and the fact that the actions in
question were taken by a government no longer in power, do have a bearing on the application of the
 76

act of state doctrine. In Sabbatino, the Supreme Court hinted that this might be a relevant
consideration, 376 U.S. at 428, 84 [Link]. at 940, and one other court has so intimated. See
Marcos, 806 F.2d at 359.

Plaintiff also appears to be arguing that Marcos is not protected by the act of state doctrine because he is no
longer president. The court in Hatch answered a similar argument as follows:

The fact that the defendant has ceased to be president of St. Domingo does not destroy his immunity. That
springs from the capacity in which the acts were done, and protects the individual who did them, because
they emanated from a foreign and friendly government.

7 Hun. at 600. We agree.

There is some reason for this. Where the country's current government seeks an adjudication of these
matters, there is obviously less of a possibility that our pronouncements will embarrass our relations
with that government. But, just as the position of our own executive branch is not dispositive on the
issue, First National City Bank v. Banco Nacional de Cuba, 406 U.S. 759, 762, 92 [Link]. 1808, 1810-
11, 32 [Link].2d 466 (1972); Marcos, 806 F.2d at 358, so can we not give dispositive effect to the
pronouncement of a foreign sovereign, particularly one with a stake in the current litigation. Banco
de Espana, 114 F.2d at 444. Embarrassment of our relationship with a foreign government is, after
all, only one reason underlying the act of state doctrine. As the court stated in Sabbatino, there are
others. 376 U.S. at 427-37, 84 [Link]. at 940-45. While the acquiescence — indeed anxious invitation
— of the current Philippine government allays one concern, it heightens others, making us leery of
judicial involvement in this dispute.

We say "less of a possibility" rather than "no possibility" because, even as things stand, a judicial
pronouncement on some of the issues presented could raise foreign relations concerns. For example, we
wonder how the current Philippine government would react to a pronouncement by the court of the United
States that Mr. Marcos' actions were entirely legal and proper. Of course, plaintiff hopes to prove otherwise,
but in assessing whether the act of state doctrine is implicated, we cannot prejudge the outcome of the dispute.
Nor can we necessarily assume that the current government will be in power when the case is finally
resolved. See p. 1486 n. 16, infra.

We cannot shut our eyes to the political realities that give rise to this litigation, nor to the potential
effects of its conduct and resolution. Mr. Marcos and President Aquino represent only two of the
competing political factions engaged in a struggle for control of the Philippines. While the struggle
seems to be resolving itself in favor of President Aquino, this may not be the end of the matter. Only
four years ago, the tables were turned, with Mr. Marcos in power and Mrs. Aquino and her husband
in exile in the United States. While we are in no position to judge these things, we cannot rule out
the possibility that the pendulum will swing again, or that some third force will prevail. What we can
say with some certainty is that a pronouncement by our courts along the lines suggested by plaintiff
would have a substantial effect on what may be a delicate political balance, as would a contrary
pronouncement exonerating Mr. Marcos.

See, e.g., Woman of the Year, Time, Jan. 5, 1987 at 18-33; Wall St.J., Dec. 29, 1986, at 1, col. 3; N.Y. Times,
Dec. 24, 1986, at 7, col. 4.

In January, for example, some troops of the Philippine Army attempted a putsch with the Marcoses' apparent
support. N Y Times, Jan. 30, 1987, at 1, col. 1.

Moreover, litigation proceeds at its own pace and the answer, whatever it may be, may well come at
a time most inopportune from the point of view of our foreign policy as it is then conceived. Judicial
pronouncements that can have such effects surely implicate "the proper distribution of functions
between the judicial and political branches of the Government on matters bearing upon foreign
affairs." Sabbatino, 376 U.S. at 427-28 84 [Link]. at 940. Absent express encouragement from the
political branches of our government, see, e.g., Jimenez, 311 F.2d at 558, we are reluctant to embark
upon such an endeavor. As the Second Circuit recognized with respect to this controversy, "the
plaintiff's claims necessarily require determinations that will directly and significantly affect
American foreign relations." Marcos, 806 F.2d at 352.

As this court stated in International Ass'n of Machinists, 649 F.2d at 1358, the judiciary must focus on single
disputes and make decisions on the basis of legal principles. The timing of our decisions is largely a result of
our caseload and of the random tactical considerations which motivate parties to bring lawsuits and to seek
 77

delay or expedition. When the courts engage in piecemeal adjudication of the legality of the sovereign acts of
states, they risk disruption of our country's international diplomacy. The executive may utilize protocol,
economic sanction, compromise, delay, and persuasion to achieve international objectives. Ill-timed judicial
decisions challenging the acts of foreign states could nullify these tools and embarrass the United States in the
eyes of the world.

This was the crux of the Court's holding in Sabbatino:

[R]ather than laying down or reaffirming an inflexible and all-encompassing rule in this case, we decide only
that the Judicial Branch will not examine the validity of a taking of property within its own territory by a
foreign sovereign government, extant and recognized by this country at the time of suit, in the absence of a
treaty or other unambiguous agreement regarding controlling legal principles, even if the complaint alleges
that the taking violates customary international law.

376 U.S. at 428, 84 [Link]. at 940 (emphasis added).

The dissent argues that we may not consider the foreign relations consequences of this litigation
because "the executive branch has clearly spoken on the question of potential embarrassment to the
United States." Nelson Dissent at 1496. This assertion is based on statements made by the Second
Circuit in Marcos, noting that the government had filed a statement supporting jurisdiction in that
case, as well as in a case before the Court of International Trade. See Marcos, 806 F.2d at 356-57,
357 n. 3. The dissent deduces that the executive branch would take the same position in all other
cases between the Philippines and the Marcoses, including ours. We are reluctant to accept this
generalization.

In the first place, we do not know precisely what the executive branch said in those cases, nor the
rationale for its position. No documents were filed by the State Department in our case and we do
not have copies of those filed elsewhere. All we know about the State Department's position comes
from the opinion of the Second Circuit. We find that characterization far too nebulous to permit
sweeping inferences about the position of the executive branch. Other than emphasizing the
importance of our relations with the Philippines, the Declaration of Undersecretary of State
Armacost "refers to the establishment of the official Presidential Commission on Good Government
headed by former Philippine Senator Jovito Salonga and to the United States' agreement to receive
Senator Salonga at a diplomatic level." Id. at 357 n. 3. The Second Circuit then concludes:
"Undersecretary Armacost asserted that the Aquino government will view the United States' actions
on this matter as an important indicator of the future course of our bilateral relations and stated that
it is in the foreign policy interests of the United States to honor the Philippine government's
requests at the earliest possible time." 806 F.2d at 357 n. 3 (emphasis added). Since the Armacost
Declaration was not addressing the Second Circuit litigation but a case before the Court of
International Trade, we find it impossible to deduce what "matter" Undersecretary Armacost refers
to and what action is expected of the United States. Equally ambiguous is the reference to the
"Philippine government's requests" mentioned by Armacost. Since we do not know the context in
which the Armacost declaration was filed, we have no way of knowing what Armacost was referring
to. His mention of the Philippine Commission on Good Government gives us a hint, however. In the
papers filed before us is a copy of one of President Aquino's executive orders which sets forth the
charter of that commission:

The Commission on Good Government is hereby authorized to request and appeal to foreign countries
wherein any such assets or properties may be found to freeze them and otherwise prevent their transfer,
conveyance, encumbrance, concealment or liquidation by former President Ferdinand E. Marcos and Mrs.
Imelda Romualdez Marcos, their close relatives, subordinates, business associates, dummies, agents, or
nominees, pending the outcome of appropriate proceedings in the Philippines to determine whether such
assets or properties were acquired by such persons through improper or illegal use of funds belonging to the
Government of the Philippines or any of its branches, instrumentalities, enterprises, banks, or financial
institutions or by taking undue advantage of their office, authority, influence, connections or relationship.

President of the Philippines, Exec. Order No. 2 at 3 (March 12, 1986) (emphasis added). We assume
that the requests to which Mr. Armacost refers are those mentioned in the commission's charter,
namely for foreign governments to freeze assets of the Marcoses while the matter of ownership is
litigated in the Philippines. That is precisely what happened in the Second Circuit.
 78

Equally unhelpful is the executive branch's pronouncement in Marcos itself. The most the Second Circuit was
able to say about that statement is that " [b]y implication [the Justice Department] position carries with it the
proposition that the United States does not consider this suit to be an improper intrusion on its management of
foreign affairs." Id., at 357 (emphasis added, footnote omitted).

The Second Circuit case is materially different from ours in ways that are highly relevant to the
application of the act of state doctrine. See n. 25 infra. Most significant, in that case "the district
court will not be asked to try the basic issues accusing President Marcos of unlawful takings," 806
F.2d at 361, since such matters are to be determined in the Philippines. In our case, these matters
would be litigated here.

If an inference is to be drawn from the State Department's pronouncements, it would be from its failure to
speak in this case while it did in two others involving the same parties and somewhat related issues. But it is a
highly sensitive and delicate undertaking to deduce our State Department's attitude from what it has failed to
say. As the Court noted in Sabbatino, "[o]ften the State Department will wish to refrain from taking an
official position, particularly at a moment that would be dictated by the development of private litigation but
might be inopportune diplomatically." 376 U.S. at 436, 84 [Link]. at 944. It suffices to conclude that we are not
precluded from addressing this issue by what the executive branch has said and done in other cases.
In any event, we doubt that a State Department pronouncement even in this case would materially change our
analysis. While embarrassment of foreign relations is a matter we consider, it is a relatively minor
consideration in light of the other serious issues raised by plaintiff's case.

5. Finally, we consider it significant that such law as there may be to apply in determining whether
Marcos' actions were legal is that of a foreign nation. As the Court noted in Sabbatino, "[a]n inquiry
by United States courts into the validity of an act of an official of a foreign state under the law of
that state would . . . be exceedingly difficult. . . ." 376 U.S. at 415 n. 17, 84 [Link]. at 933 n. 17.
Moreover, it is not the Philippines' private law we would be interpreting, but important aspects of its
public law. The question of whether Mr. Marcos properly invoked martial law, or whether he
exercised it properly, if it has an answer in Philippine law at all, is no doubt of considerable
importance and sensitivity to that country and its people. So is Mr. Marcos' invocation of
presidential immunity under Article VII, Section 17 of the Philippine Constitution in force at the
time Mr. Marcos was president, a provision that, apparently, has been carried forward into the
current constitution. Were we to answer this latter question, it would be as if Nixon v.
Fitzgerald, 457 U.S. 731, 102 [Link]. 2690, 73 [Link].2d 349 (1982), defining the immunity of
American presidents, had been decided by the Supreme Court of the Philippines.
As Sabbatino noted, such a determination "if wrongly made, would be likely to be highly offensive
to the state in question." 376 U.S. at 415 n. 17, 84 [Link]. at 933 n. 17.

This section provides:

The President shall be immune from suit during his tenure. Thereafter, no suit whatsoever shall lie for
official acts done by him or by others pursuant to his specific orders during his tenure.

The immunities herein provided shall apply to the incumbent President referred to in Article XVII of this
Constitution.

D.

In International Association of Machinists, we noted that "[t]he act of state doctrine is similar to the
political question doctrine in domestic law." 649 F.2d at 1358; see also Sharon, 599 F. Supp. at 547.
Questions that appear to implicate one doctrine are sometimes best resolved by reference to the
other. See, e.g., Occidental of Umm al Qaywayn, Inc. v. A Certain Cargo of Petroleum, 577 F.2d
1196, 1201 (5th Cir. 1978), cert. denied, 442 U.S. 928, 99 [Link]. 2857, 61 [Link].2d 296 (1979).

Thus, even if we put to one side the foreign affairs implications of any decision an American court
may reach on the merits, and even if our own political branches were to pronounce their willingness
for us to hear the case, we would still be faced with the intractable problem of adjudicating the
essentially political questions raised by plaintiff's complaint.

These problems lie at the very heart of the Republic's case. Plaintiff asserts that "[o]n September 21,
1972 [Mr. Marcos] declared martial law. From and after the declaration of martial law, Mr. Marcos
 79

was the dictator of the Government of the Philippines and personally controlled the said
government." Fernando ¶ 7. In adjudicating plaintiff's claims, our courts would have to determine
the legality of the actions of a foreign head of state, exercising dictatorial powers under a reign of
martial law. It is hard to imagine what judicially manageable standards the courts could apply in
making such a determination. A dictator is a ruler holding absolute authority; he is generally subject
to no legal constraints, only physical and political ones. Martial law constitutes the suspension of
civil authority and invocation of rule by decree of a military commander.

The American Heritage Dictionary (New [Link]. 1976), defines dictator as "[a] ruler having absolute
authority and supreme jurisdiction over the government of a state; especially, one who is considered
tyrannical or oppressive." Id., at 366. Black's Law Dictionary (5th ed. 1979) defines a dictator as "[o]ne in
whom supreme authority in any line is invested, one who rules autocratically, and one who prescribes for
others authoritatively, and [often] oppressively." Id. at 409 (citing Houston Printing Co. v. Hunter, 105
S.W.2d 312, 317 ([Link]. 1937)).

Black's Law Dictionary defines martial law as follows:

A system of law, obtaining only in time of actual war and growing out of the exigencies thereof, arbitrary in
its character, and depending only on the will of the commander of an army, which is established and
administered in a place or district of hostile territory held in belligerent possession, or, sometimes, in places
occupied or pervaded by insurgents or mobs, and which suspends all existing civil laws, as well as the civil
authority and the ordinary administration of justice.

Id. at 878-79. Webster's Third International Dictionary defines the term as "military rule exercised by a
nation or state over its citizens or subjects in a situation where they are not legally enemies and when an
emergency justifies such action." Id. at 1386.

If, in adjudicating this dispute, the court were to accept plaintiff's characterization, it is difficult to
see what law to apply to Mr. Marcos' actions. By its nature, dictatorial rule is arbitrary and
unrestrained by legal authority; martial law is a suspension of the normal rule of law. Offensive as
such absolute government may be to our sense of justice, no legal restraints can prevail against
dictatorial power. A dictator can do whatever he can get away with. A court of law in this country
simply cannot second-guess how that power is exercised. See Underhill, 168 U.S. at 254, 18 [Link]. at
85.

Plaintiff is in no better position if it seeks to challenge Mr. Marcos' invocation of martial law and
assumption of dictatorial power. Again, there are no judicially manageable standards for us to apply
in second-guessing that decision. Just as we cannot second-guess the outcome of an election, or the
success of a revolution in a foreign country, see id. at 252-53, 18 [Link]. at 84-85, so can we not
adjudicate whether Mr. Marcos was within his rights in asserting dictatorial control over the
Philippines starting in 1972.

We must take as given that Mr. Marcos was the country's president, that he was recognized as its
head of state by our government, Oetjen v. Central Leather Co., 246 U.S. 297, 302, 38 [Link]. 309,
311, 62 [Link]. 726 (1918), and that, as plaintiff so bluntly admits, he and his wife were
"permitted . . . to remain in positions of power and to conduct the affairs of the Philippines virtually
unchecked." Complaint ¶ 59. Whether the Philippine people so permitted the Marcoses to rule them
out of ignorance, because they were misled, because they considered it to be in their self-interest, or
because they were powerless to do otherwise, is something we do not know and have no way of
finding out. It is simply beyond the capacity of our courts to adjudicate.

See 1975 [Link]'l L. 344-45 n. 1 (noting that Marcos had been granted head of state immunity in a
libel action; "a Head of State performs important functions which should not be interfered with by the
necessity of defending litigation in foreign countries").

E.

In light of these considerations, we hold that the district court erred in concluding that plaintiff is
likely to succeed on the merits of its state claims, or its federal claims for that matter. To succeed
under those claims as they are now presented, plaintiff would have to establish that practically all of
Mr. Marcos' wealth was stolen. In light of plaintiff's own claims and assertions, we believe that it
will be unable to do so because, as to many of the assets in question, adjudication will be barred by
 80

the act of state doctrine, the political question doctrine or both. Since plaintiff has not sought to trace
specific assets to specific alleged misdeeds, the exclusion of large portions of Mr. Marcos' wealth
from adjudication will defeat plaintiff's net worth analysis, and with it, its case. In these
circumstances, we cannot even say that the Republic has the "fair chance of success on the merits"
needed to remand for a balancing of the hardships. See Benda, 584 F.2d at 315.

While our dissenting colleague relies heavily on language drawn from the Second Circuit's opinion
in Marcos, we view our approach as consistent with that of the Second Circuit. In that case, the court asserted
jurisdiction over a claim by the Philippines for a very limited purpose: to "freeze [Marcos'] property in the
United States subject to future process in [the Philippines]." 806 F.2d at 354. It would therefore be the
Philippine courts that would decide whether Marcos' conduct amounted to theft under Philippine law. Id. at
361. Moreover, the claims in that case covered only specific "assets in New York." Id. In short, the Second
Circuit case was "merely ancillary to an eventual Philippine decree or judgment and was brought in the
Southern District only because the real estate is located [t]here." Id. The Second Circuit contrasted the case
of Islamic Republic of Iran v. Pahlavi, 94 A.D.2d 374, 464 N YS.2d 487 (1983), aff'd, 62 N.Y.2d 474, 478
N.Y.S.2d 597, 467 N.E.2d 245 (1984), cert. denied, 469 U.S. 1108, 105 [Link]. 783, 83 [Link].2d 778 (1985),
where plaintiff sought to impose a constructive trust "on assets of the defendants throughout the world." Id. 94
A.D.2d at 377, 464 N.Y.S.2d at 490. Our case is far more analogous to Islamic Republic.
Quite significant, and unaddressed by the dissent, is the Second Circuit's recognition that to the extent
"Marcos's wealth was obtained through official expropriation decrees or public monopolies" they were public
acts, potentially subject to the act of state doctrine. 806 F.2d at 359.

Conclusion

The order granting the preliminary injunction is reversed and the preliminary injunction is ordered
vacated. The case is remanded to the district court for proceedings consistent with this opinion. To
avoid duplication of effort, the panel retains jurisdiction over any further appeals in this case.

[74] CYNTHIA HOLCOMB HALL, Circuit Judge, concurring in part and dissenting in part:

I concur in the result reached in Judge Kozinski's opinion. Indeed, if the district court had had
jurisdiction to enter the preliminary injunction, I could agree with it entirely. I respectfully dissent,
however, from the jurisdictional holding of Part I of the opinion and join in the remainder.

The majority, in finding that the district court had jurisdiction, relies on the case of Keniston v.
Roberts, 717 F.2d 1295 (9th Cir. 1983), for the proposition that at this stage of the proceedings the
complaint must meet only two criteria. First, it must claim a right to recover under the Constitution
and laws of the United States. Id., at 1298. Second, the claim set forth in the complaint must not be
wholly insubstantial and frivolous. Id. The test set forth in Keniston, however, is used only "`for the
purposes of determining whether [the plaintiff] stated a cause of action on which relief could be
granted.'" Id. (quoting Jackson Transit Authority v. Local Division 1285, 457 U.S. 15, 21 n. 6, 102
[Link]. 2202, 2206 n. 6, 72 [Link].2d 639 (1982)). The test of whether to grant a motion to dismiss
under [Link].P. 12(b)(6) is inapplicable to the question of whether a plaintiff has made a
sufficient showing of subject matter jurisdiction to obtain a preliminary injunction. At the
preliminary injunction stage, a more stringent test applies.

In SEC v. United Financial Group, Inc., 474 F.2d 354 (9th Cir. 1973), a case both procedurally and
factually similar to this one, we addressed the question of whether the district court had subject
matter jurisdiction to enter a preliminary injunction. The SEC claimed that the defendants were
violating United States securities laws. The district court entered a preliminary injunction in favor of
the SEC. On appeal, the defendants argued that all offers and sales of shares were confined to
foreigners and, therefore, that the district court did not have subject matter jurisdiction to grant the
preliminary injunction. Id., at 356. In reviewing the defendants' claim, this court did not apply the
frivolity standard set forth in Keniston. Instead, we engaged in a through evaluation of the effect that
the defendants' activities had had upon investors in the United States holding that "focus should be
upon appellants' activities within the United States and the impact of those activities upon American
investors." Id., at 356-57. See also Des Brisay v. Goldfield Corp., 549 F.2d 133, 134 (9th Cir. 1977)
(focus in determining whether United States securities laws apply to foreign transactions should be
on adverse impact of the transactions on American securities markets); Eurim-Pharm GmbH v.
Pfizer Inc., 593 F. Supp. 1102, 1105 n. 3 (S.D.N.Y. 1984) (focus in determining whether United
States antitrust laws apply to international business transactions is on the situs of the effect).
 81

The "effects" test applied in securities and antitrust cases should also be applied in RICO cases.
When it passed RICO, Congress was concerned with the harmful effect of organized crime on the
economy of the United States:

The Congress finds that (1) organized crime in the United States is a highly sophisticated, diversified, and
widespread activity that annually drains billions of dollars from America's economy . . . (3) this money and
power are increasingly used to infiltrate and corrupt legitimate business and labor unions and to subvert and
corrupt our democratic processes; (4) organized crime activities in the United States weaken the stability
of the Nation's economic system, harm innocent investors and competing organizations, interfere with free
competition, seriously burden interstate and foreign commerce, threaten the domestic security, and
undermine the general welfare of the Nation and its citizens . . .

RICO Statement of Findings and Purpose, Pub.L. No. 91-452, 84 Stat. 922 (1970), 91st Cong., 2d
Sess., reprinted in 1970 U.S. Code Cong. [Link] 1073, 1073 (emphasis added). See also
United States v. Bagnariol, 665 F.2d 877, 892 (9th Cir. 1981) (effect on commerce is an essential
element of a RICO violation), cert. denied, 456 U.S. 962, 102 [Link]. 2040, 72 [Link].2d 487 (1982).
Thus, in order to maintain a lawsuit under RICO, a plaintiff must demonstrate that the transactions in
question adversely affected the economy of the United States.

The complaint before us in this case fails to make the requisite allegations of harm to the economy of
the United States; the majority does not hold otherwise. Rather than arguing that the "effects" test is
met on the facts of this case, the majority erroneously applies a "conduct" test utilized in the
securities law setting. See Grunenthal GmbH v. Hotz, 712 F.2d 421, 424-25 (9th Cir. 1983) (where
conduct in the United States was significant with respect to the alleged violation, there is federal
jurisdiction under United States securities laws). The "conduct" test used in the securities context is
not applicable in RICO cases. Cf. United States v. Bagnariol, 665 F.2d 877, 892 (9th Cir. 1981)
(effect on commerce is an essential element of a RICO violation), cert. denied, 456 U.S. 962, 102
[Link]. 2040, 72 [Link].2d 487 (1982). In passing RICO, Congress was concerned with the effect of
organized crime on the economy of the United States. Therefore, the "effects" test is the only
applicable one. Even if the majority were correct in its assumption that the "conduct" test applies in
the RICO context, the test would not be met on the facts of this case. The defendants' conduct in the
United States was not a significant element of the harm alleged by the plaintiff. See, e.g.,
Grunenthal, 712 F.2d at 425. As the plaintiff conceded at oral argument, the investment of funds in
the United States was no more injurious to the Philippines than if the funds had been kept in a
mattress in the Philippines.

At oral argument, we were advised that the plaintiff had amended its complaint subsequent to the issuance of
the preliminary injunction. The propriety of a preliminary injunction under the amended complaint is not
before us.

I would vacate the injunction on the ground that the district court lacked subject matter jurisdiction
to enter it.

[82] NELSON, Circuit Judge, dissenting:

The majority opinion characterizes this case largely as a political dispute between competing
governments, designed to challenge the legitimacy of Marcos' reign. Majority op. at 1475, 1479,
1479-80. This characterization distorts the proper focus of our analysis. In my view, this appeal
concerns the attempt by the Republic of the Philippines to secure a preliminary injunction to prevent
Ferdinand and Imelda Marcos, and their alleged agents, from transferring, conveying, or
encumbering specific properties in California, and other as yet unidentified properties, allegedly
purchased with funds stolen from the Republic of the Philippines, pending a final determination of
ownership of the properties. The district court concluded that it had subject matter jurisdiction under
RICO. Under the pendent claims for conversion, fraud, and deceit, which sought money damages, an
accounting, and return of property under a constructive trust, the court issued a preliminary
injunction to preserve the status quo pending a determination on the merits. Because I believe that
the act of state doctrine does not compel reversal, and that the district court clearly did not abuse its
discretion in issuing the preliminary injunction, I respectfully but strenuously dissent from the
majority's result and all except part I of the majority opinion, which upholds the finding of subject
matter jurisdiction under the federal claims.
 82

The Philippines' verified complaint includes among its allegations of private unlawful conduct:
— that Ferdinand Marcos "converted, to his use and that of his friends, family, and associates, money, funds,
and property belonging to the Philippines and its people." Complaint ¶ 12.
— that the Marcoses committed "numerous acts of fraud, deceit, conversion, civil conspiracy, acts of
racketeering, and other unlawful acts." Id. ¶ 58.
— that the Marcoses stole and transported in their flight from the Philippines to Hawaii approximately $7
million belonging to the Philippine people, including currency, negotiable instruments, and transportable
property. Id. ¶¶ 25-26.

I emphasize that the Philippines has alleged serious federal offenses under RICO, including mail and wire
fraud and the concealment and transportation of stolen property. I also note that the Second Circuit's Marcos
case predicated federal jurisdiction on the federal question arising from the foreign policy considerations
posed by that action. Republic of the Philippines v. Marcos, 806 F.2d 344, 352-54 (2d Cir. 1986).

I. THE ACT OF STATE DOCTRINE

The majority would reverse the decision to issue the preliminary injunction because it believes that
the act of state doctrine' renders the Philippines' likelihood of success on the merits low. I believe
that the majority's analysis of the act of state doctrine is incorrect in substantial part as a matter of
law and wholly unsupported by the facts and procedural posture of this case. Below I set forth the
principal points on which I disagree with the majority's analysis.

A. The Scope of the Doctrine: Official and Unofficial Acts

Under the act of state doctrine, the courts of this country will not inquire into the legality of official
acts of sovereign nations done within their own territories. Alfred Dunhill of London, Inc. v.
Republic of Cuba, 425 U.S. 682, 691 n. 7, 96 [Link]. 1854, 1859 n. 7, 48 [Link].2d 301 (1976); First
Nat'l City Bank v. Banco Nacional de Cuba, 406 U.S. 759, 763, 92 [Link]. 1808, 1811, 32 [Link].2d
466 (1972); Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 416, 84 [Link]. 923, 934, 11
[Link].2d 804 (1964). The doctrine applies to "the public and governmental acts of sovereign states,"
but not to "their private and commercial acts." Dunhill, 425 U.S. at 695, 96 [Link]. at 1862; see also
Republic of the Philippines v. Marcos, 806 F.2d 344, 358 (2d Cir. 1986) (holding that, for the act of
state doctrine to apply, "the acts must be public acts of the sovereign"); Restatement (Revised) of
Foreign Relations Law § 469, at 51 ([Link] No. 7, 1986) (stating that the doctrine applies only to
sovereign "acts of a governmental character"). Although the doctrine also applies to the official acts
of government officials vested with sovereign authority, see Bernstein v. Van Heyghen Freres,
S.A., 163 F.2d 246, 249 (2d Cir.), cert. denied, 332 U.S. 772, 68 [Link]. 88, 92 [Link]. 357
(1947); Banco de Espana v. Federal Reserve Bank, 114 F.2d 438 (2d Cir. 1940), it does not apply to
private, unofficial conduct of government officials, including heads of state. Marcos, 806 F.2d at
359; see DeRoburt v. Gannett Co., 733 F.2d 701, 704 (9th Cir. 1984), cert. denied, 469 U.S. 1159,
105 [Link]. 909, 83 [Link].2d 923 (1985). Therefore, to the extent that Ferdinand Marcos, Imelda
Marcos, and their agents have engaged in unofficial acts, the act of state doctrine has no application.

The majority's analysis blurs the distinction between the official or unofficial character of the
defendants' acts. It first concedes, almost in passing, that "[a] few of Marcos' alleged misdeeds . . .
may amount to nothing more than common fraud or theft." Majority op. at 1479; see also id. at 1485.
Yet the majority's analysis then broadly assumes that Marcos is a "dictator" who "can do whatever
he can get away with," id. at 1478, 1483 n. 9, 1489, and that the challenged acts of the defendants
reflect "complex political and policy choices," even if undertaken in part "to serve otherwise
improper ends," id. at 1485. In short, the majority all but ignores the private, unofficial character of
the challenged acts and appears to embrace the sweeping position that the acts of a dictator are
necessarily official and insulated from judicial review.

In Section I.D. below, I address the consequences of a more generous reading of the majority's analysis that
would in fact permit inquiry into the defendants' unofficial acts of "common fraud or theft."

The majority characterizes the Philippines' complaint as challenging, inter alia, Marcos'
governmental acts of "expropriation of private property; creating public monopolies; `grant[ing]
government favors, contracts, licenses, loans, and other public benefits.'" Majority op. at 1478
(quoting Fernando declaration ¶ 8). In fact, however, the Fernando declaration clearly distinguishes
between official governmental acts and private, unofficial acts. The full passage quoted in part by
the majority states:
 83

The said taking of Government properties was effected by a range of techniques, including but not limited to
accepting payments, bribes, kickbacks, interests in business ventures, and other things of value in exchange
for the grant of government favors, contracts, licenses, franchises, loans, and other public benefits;
expropriating outright private property for the benefit of persons beholden to or fronting for Mr. Marcos,
the said expropriation at times effected by violence or the threat of violence or incarceration; arranging
loans by the Philippine Government to private parties beholden to and fronting for Mr. Marcos; direct
raiding of the public treasury; diverting loans, credits and advances from other governments intended for
use by the Philippine Government; creating public monopolies placed in the hands of persons beholden to
and fronting for Mr. Marcos.

Fernando declaration ¶ 8 (emphasis added). That a government official may obtain kickbacks,
bribes, and interests from the commission of otherwise governmental acts — such as granting a
public monopoly or governmental contract — does not convert the acquisition of those kickbacks,
bribes, and interests into official, public acts. The majority evidently believes that whatever acts are
associated with an ostensibly governmental function are thereby rendered official. I cannot adhere to
the position that the alleged acts of receiving bribes, plundering the treasury, and extortion are the
result of "complex political and policy choices." Majority op. at 1485. Even a dictator is capable of
performing private, unofficial acts.

In Jimenez v. Aristeguieta, 311 F.2d 547 (5th Cir. 1962), the Fifth Circuit drew a clear distinction
between the official acts and private conduct of a former head of state who was characterized as a
dictator. The Republic of Venezuela alleged that Marcos Perez Jimenez, the former president of
Venezuela, had committed "financial crimes for his own private personal gain" during the period he
served as president. Id. at 552. The financial crimes included receiving kickbacks and
commissions on government contracts, misappropriating and diverting government payments on
construction contracts and land purchases, and securing improvements to his private estate at public
expense. Id. Jimenez contended that the acts alleged were "`acts done in the exercise of or in color of
his sovereign authority'" and, as such, could not be examined by the courts of this country
"`inasmuch as the judicial authorities cannot review the acts done by a sovereign in his own territory
to determine illegality.'" Id. at 557. Jimenez argued "that as a `dictator' he himself would be the
sovereign — the government of Venezuela — and that all his acts constituting the financial crimes
with which he is charged . . . are acts of state or sovereign acts, the legality of which the Act of State
Doctrine precludes [courts from adjudicating]." Id. The Fifth Circuit disagreed:

Even though characterized as a dictator, appellant was not himself the sovereign — government — of
Venezuela within the Act of State Doctrine. He was chief executive, a public officer, of the sovereign nation
of Venezuela. It is only when officials having sovereign authority act in an official capacity that the Act of
State Doctrine applies.

Appellant's acts constituting the financial crimes of embezzlement or malversation, fraud or breach of trust,
and receiving money or valuable securities knowing them to have been unlawfully obtained . . . were not
acts of Venezuela sovereignty. . . . [E]ach of these acts was "for the private financial benefit" of the
appellant. They constituted common crimes committed by the Chief of State done in violation of his position
and not in pursuance of it. They are as far from being acts of state as rape.

Id. at 557-58 (citations omitted) (emphasis added); see also DeRoburt, 733 F.2d at
704 (distinguishing between the official sovereign acts of the Republic of Nauru, to which the act of
state doctrine may apply, and the private, unofficial conduct of its current president, to which the
doctrine does not apply).

The majority apparently concedes the distinction drawn in Jimenez between official and unofficial acts of a
dictator, but distinguishes Jimenez on the ground that judicial review in that case was permitted because of the
existence of an extradition treaty. Majority op. at 1484 n. 12. I agree, but do not see the point. Jimenez still
supports the distinction between official and unofficial acts, even for a dictator. The existence of a treaty is
relevant to the separate question of embarrassment of our executive branch, discussed below. I do not
understand the majority to suggest that the absence of a treaty in this case requires invocation of the act of
state doctrine. We must look to other indications from our executive branch. See infra Section I.C.

The Second Circuit also made this distinction clear in its analysis of the applicability of the act of
state doctrine to the financial crimes alleged to have been committed by Ferdinand
Marcos. Marcos, 806 F.2d at 358-59. As in Jimenez, Marcos was characterized as a "dictator . . .
with personal control over [the] government and economy." Id. at 348. The Second Circuit held:
 84

Appellants simply fail to make the crucial distinction between acts of Marcos as head of state, which may be
protected from judicial scrutiny even if illegal under Philippine law, and his purely private acts. Although the
distinction between public and private acts of a foreign official may be difficult to determine, our courts
have repeatedly done so.

Id. at 359 (citations omitted).

Therefore, to the extent that the majority holds that the act of state doctrine necessarily bars inquiry
into Marcos' acts because of his status as a "dictator," I cannot agree. The doctrine applies only to his
official acts. As a descriptive matter, Marcos and his agents no doubt exercised broad power,
especially after the imposition of martial law in 1972. But the appropriate inquiry is not to invoke the
talismanic label "dictator." The district court should determine which of the challenged acts were
official and which were not. Only by doing so can the court determine the extent to which the act of
state doctrine may apply. The majority's analysis sweeps them all together.

The Philippine Constitution itself recognizes a distinction between official and unofficial acts of the president.
It affords the president complete immunity from any suit brought during his tenure, but provides immunity
from suit after he leaves office only for "official acts done by him or by others pursuant to his specific orders
during his tenure." Philippine Const. art. VII, § 17.

B. The Burden of Asserting the Act of State Doctrine

The majority also fails to take heed of the well-established rule that the burden of establishing that
particular conduct constitutes an "act of state" subject to the act of state doctrine is on the party
invoking the defense. See Dunhill, 425 U.S. at 695, 96 [Link]. at 1861; Marcos, 806 F.2d at 359. In
granting the preliminary injunction against Marcos in the Second Circuit case, District Judge Level
held:

[T]he applicability of the doctrine is not demonstrated on the present record. Defendants have made no
showing that the acts alleged against Ferdinand Marcos, much less Imelda Marcos, would necessarily be
protected from United States court adjudication.

New York Land Co. v. Republic of the Philippines, 634 F. Supp. 279, 289 (S.D.N. Y.), aff'd,
Republic of the Philippines v. Marcos, 806 F.2d 344 (2d Cir. 1986). The Second Circuit agreed.
"Since the burden of proof is on the party invoking the act of state defense, appellants must
ultimately demonstrate that the challenged acts of Marcos were in fact public acts (the allegations of
the complaint covering both public and private acts)." Marcos, 806 F.2d at 359-60 (citations
omitted). The Second Circuit concluded:

In short, the district court will necessarily scrutinize the acts that The Republic challenges. Defendants must
present evidence that these acts were public (e.g., that Marcos's wealth was obtained through official
expropriation decrees or public monopolies). The court then must decide whether to examine these public
acts in light of the considerations discussed above. If it chooses not to do so — and the determination
whether the Marcoses obtained their wealth illegally . . . is impossible without such scrutiny — the court
should consider deferring to a Philippine adjudication that comports with due process. But in any event, at
this stage we agree with the position of the United States . . . that the defendants have not discharged their
burden of proving an act of state. Only after that burden is met do other relevant factors need to be
considered.

Id. at 359.

In this case, Marcos and his co-defendants have not pointed to even a single official sovereign act by
which Marcos has acquired any portion of the funds used to purchase the real property and invest in
the accounts at issue here. Instead, Marcos merely asserts that all of his conduct during the past
twenty years, private and sovereign alike, is subject to the act of state doctrine. The majority's
assertion that Marcos is a "dictator" whose acts are insulated from judicial scrutiny eviscerates the
defendants' burden of establishing the applicability of the defense to particular acts. Indeed, most of
the majority's analysis proceeds on the theory that the plaintiff must show that the doctrine does not
apply. Majority op. at 1482-88. At this stage of the proceedings, Marcos and his co-defendants have
not met their burden of establishing that the challenged acts were official acts to which the act of
state doctrine may apply.

C. The Assertion of Embarrassment to the United States Executive Branch

 85

The act of state doctrine was "judicially created to effectuate general notions of comity among
nations and among the respective branches of the Federal Government." First Nat'l City Bank, 406
U.S. at 762, 92 [Link]. at 1811. "[T]he doctrine was not compelled by the nature of sovereignty, by
international law, or by the text of the Constitution. `Rather, it derives from the judiciary's concern
for its possible interference with the conduct of foreign affairs by the political branches of the
government.'" DeRoburt, 733 F.2d at 703 (quoting Timberlane Lumber Co. v. Bank of America, 549
F.2d 597, 605 (9th Cir. 1976)) (citations omitted); see also Sabbatino, 376 U.S. at 421-23, 84 [Link].
at 936-38.

Particularly disturbing in the majority's analysis are the bare assertions that invocation of the act of
state doctrine is necessary to prevent embarrassment to the executive branch of the United States by
this litigation. Majority op. at 1482, 1486 n. 14, 1486. The majority states that "[o]ur decision will be
relatively innocuous only if it is in favor of the plaintiff, if our government's attitudes toward the
Philippines is unchanged and if the current Philippine government is still in power." Id. at 1482. It
asserts that to permit this action to proceed in a United States court may embarrass the United States
because the "pendulum" of power between President Aquino and Mr. Marcos or "some third force"
may "swing again." Id. at 1486.

Putting aside the likelihood of these political predictions actually coming to pass, it is not clear why
the majority believes that such potential embarrassment would outweigh the certain, immediate
embarrassment in our relations with the current Philippine government if our courts were to shut the
door to the Philippines' request for adjudication of the claims. "[T]he act of state doctrine reflects
respect for foreign states, so that when a state comes into our courts and asks that our courts
scrutinize its actions, the justification for application of the doctrine may well be significantly
weaker." Marcos, 806 F.2d at 359. "The balance of relevant considerations may also be shifted if the
government which perpetrated the challenged act of state is no longer in existence . . . for the
political interest of this country may, as a result, be measurably altered." Sabbatino, 376 U.S. at
428, 84 [Link]. at 940. In such a case, "the danger of interference with the Executive's conduct of
foreign policy is surely much less than the typical case where the act of state is that of the current
foreign government." Marcos, 806 F.2d at 359. If at some future time a new political upheaval
should bring Marcos back to power, the district court could then reassess the balance of
considerations determining the applicability of the act of state doctrine.

In another Marcos case, the Fourth Circuit recently rejected the Marcoses's argument that they should be
entitled to head-of-state immunity, a doctrine of customary international law. The Fourth Circuit explained:

Head-of-state immunity is founded on the need for comity among nations and respect for the sovereignty of
other nations; it should apply only when it serves those goals. In this case, application of the doctrine to
Ferdinand and Imelda Marcos would clearly offend the present Philippine government, which has sought to
waive the Marcos[es]' immunity, and would therefore undermine the international comity that the
immunity doctrine is designed to promote. Our view is that head-of-state immunity is primarily an attribute
of state sovereignty, not an individual right. Respect for Philippine sovereignty requires us to honor the
Philippine government's revocation of the head-of-state immunity of Mr. and Mrs. Marcos.

In re Grand Jury Proceedings: John Doe # 700, 817 F.2d 1108, 1110-11, (4th Cir. 1987).

Regardless of the merits of the majority's speculation as to the foreign policy consequences of any
action or inaction by our courts, I believe that such speculation is entirely inappropriate in this case.
The majority opinion ignores the fact that the executive branch has clearly spoken on the question of
potential embarrassment to the United States in similar cases. Our executive branch has urged the
courts of this country to honor the Philippines' requests for adjudication here and has argued on the
Philippines' behalf against the applicability of Marcos' defenses to suit in our courts. Marcos, 806
F.2d at 356-57. In a declaration by Michael H. Armacost, Undersecretary of State for Political
Affairs, made on March 15, 1986, in a Marcos case pending in the United States Court of
International Trade,

Undersecretary Armacost pointed out that the United States' relations with the Philippines are extremely
important and that it is the policy of the United States to strengthen and broaden those relations, especially
in light of the two countries' shared basic values such as a commitment to democratic government and
respect for human rights. The Armacost declaration also points out that the United States has two of its
largest overseas military facilities located in the Philippines, facilities of critical importance to the security of
 86

both nations, that the two countries have numerous defense agreements, and that the United States
has provided the Philippines with over $250 million in military assistance in the past five years and permits
Philippine nationals to enlist in the United States Navy.

The statement also emphasizes the important United States-Philippine economic relationship involving in
1985 alone over $3.7 billion worth of bilateral trade, a direct United States investment in the Philippines of
over $1.2 billion, and United States monetary aid to the Philippines totaling $226 million. The statement also
notes United States-Philippine cooperation in numerous areas including agriculture, education, nuclear
energy, and science, and mentions that the United States government recognized the new Philippine
government headed by Corazon Aquino and "welcomed its commitment to fulfill the democratic aspirations
of the Filipino people." The declaration refers to the establishment of the official Presidential Commission on
Good Government headed by former Philippine Senator Jovito Salonga and to the United States' agreement
to receive Senator Salonga at a diplomatic level. Undersecretary Armacost asserted that the Aquino
government will view the United States' actions on this matter as an important indicator of the future course
of our bilateral relations and stated that it is in the foreign policy interests of the United States to honor the
Philippine government's requests at the earliest possible time.

Id. at 357 n. 3 (emphasis added). The Second Circuit also noted that a letter from the United States
Department of Justice, with the concurrence of the Office of the Legal Advisor to the Department of
State, argued that Marcos and his co-defendants had not discharged their burden of proving acts of
state. Id. at 356-57.

Thus, the Second Circuit concluded that "[t]he United States has made it clear that it does not fear
embarrassment if the courts of this country were to take jurisdiction of this and other
disputes between The Republic and ex-President Marcos." Id. at 356 (emphasis added). The
majority's assertion that adjudication of the Philippines' claims in a United States court would cause
embarrassment to our executive branch is therefore unfounded. Given such guidance, it is not the
judiciary's role to appraise the wisdom of the executive branch's foreign policy.

The majority's attempt to explain away the significance of the statements and actions of our executive branch
in other Marcos suits, see Majority op. at 1487-88, is strained and unpersuasive. Every indication supports the
conclusion that the executive branch fears no embarrassment from the Philippines' suit. Conversely, the
majority can point to no evidence that would support its contrary ruminations on foreign policy.
Moreover, the majority infers that the executive branch supports granting the Philippines' requests to freeze
Marcos' assets only if ultimate adjudication on the merits is made in Philippine courts. Id. at 1487-88. Here,
the Philippines has requested a freeze of assets; at a later date, the district court will rule on the forum non
conveniens issue and determine where the merits will be tried. Ironically and illogically, the majority
concludes that, because the Philippines has also requested adjudication of the merits in our courts, no freeze
will issue.

Although the position of our own executive branch is not dispositive of the act of state inquiry, see
id. at 358, the executive's appraisal of the disruptive effect that denying the Philippines access to our
courts would have on the conduct of sensitive foreign policy is entitled to considerable
deference. See First Nat'l City Bank, 406 U.S. at 768, 92 [Link]. at 1813 (holding that the United
States courts should defer to the executive "where the Executive Branch, charged as it is with
primary responsibility for the conduct of foreign affairs, expressly represents to the Court that
application of the act of state doctrine would not advance the interests of American foreign
policy"); id. at 776, 92 [Link]. at 1817 (Powell, J. concurring) (stating that "[w]hen it is shown that a
conflict in those roles [of the judicial and political branches] exists, . . . the judiciary should
defer"); id. at 790, 92 [Link]. at 1824 (Brennan, J., concurring) (stating that "the representations of the
Department of State are entitled to weight for the light they shed on the permutation and
combination of factors underlying the act of state doctrine"); Jimenez, 311 F.2d at 558 (stating, with
respect to the separation of powers concern underlying the act of state doctrine, that the
judiciary customarily defers to the executive branch, "the branch of government charged with
international relations"). Given the executive branch's guidance on whether our courts should
entertain the Philippines' claims, the majority's assertions to the contrary — though suspect on their
own terms — are inappropriate and unfounded.

Unaccountably, the majority asserts that even an explicit instruction from the executive branch in this case
probably would not materially alter its analysis and that embarrassment to foreign relations is "a relatively
minor consideration." Majority op. at 1488 n. 20.
 87

D. The Relationship of the Act of State Doctrine to the Probability of Success on the
Merits

The majority reasons that, because the act of state doctrine bars inquiry into all or most of the
challenged acts, the Philippines' "net worth" theory will collapse, thus rendering the plaintiff's
probability of success on the merits low. Majority op. at 1480-81. I cannot agree with this argument's
predicate or its ultimate conclusion.

As discussed above, the majority's analysis casts the scope of the act of state doctrine far too
broadly, ignores the defendants' burden of proving its applicability, and disregards the guidance of
our executive branch. The majority prematurely assumes that only "[a] few" of Marcos' acts will
prove to be private, unofficial acts, while "the vast majority" will prove to be public, official acts.
Majority op. at 1479, 1482. This guess as to the proportion of official and unofficial acts ignores not
only Marcos' burden of proving which acts are in fact official, but also the incomplete record before
the district court when it ruled on the preliminary injunction. But even assuming (1) that Marcos
could later establish that some challenged acts were official and (2) that the district court would
determine, after "balanc[ing the] relevant considerations," see Sabbatino, 376 U.S. at 428, 84 [Link]. at
940, that the act of state doctrine bars claims based on those official acts, I cannot conclude that the
Philippines will be unable to recover on the basis of private, unofficial acts that the doctrine does not
reach. The majority simply asks too much of the Philippines' "net worth" theory, especially in view
of the procedural posture of this case. It treats the "net worth" theory almost as a cause of action that
must be followed through to completion at trial. See Majority op. at 1479-81. However, it is merely
the evidence of wrongdoing that the Philippines has complied at this preliminary stage.

Far from being an "inflexible and all-encompassing rule," Sabbatino, 376 U.S. at 428, 84 [Link]. at 940, the
question "`[w]hether to invoke the act of state doctrine is ultimately and always a judicial
question.'" Marcos, 806 F.2d at 358 (quoting Allied Bank Int'l v. Banco Credito Agricola de Cartago, 757
F.2d 516, 521 n. 2 (2d Cir.), cert. dismissed, ___ U.S. ___, 106 [Link]. 30, 87 [Link].2d 706 (1985)). Application
of the doctrine requires "a balancing test with the critical element being the potential for interference with our
foreign relations." DeRoburt, 733 F.2d at 703; Banco Credito Agricola, 757 F.2d at 521 ("The doctrine
demands a case-by-case analysis of the extent to which in the context of a particular dispute separation of
powers concerns are implicated" with primary emphasis on whether "judicial consideration of the foreign
sovereign's act . . . would embarrass or hinder the executive in the realm of foreign relations."). See supra pp.
1495-96.

The Philippines filed this action on June 16, 1986. The complaint alleged pendent claims for
conversion, fraud, and deceit. It charged that the Marcoses reported $337,429 of income during the
twenty-year period during which Marcos was in office, while holding investments of $1.55 billion.
In support of its preliminary injunction motion, the Philippines produced evidence corroborating this
discrepancy and documentation of the "paper trail" linking the Marcoses to specific properties and
bank accounts through aliases and shell corporations. See infra pp. 1500-01. On the basis of this
evidence, on June 25, 1986 — before the parties had conducted discovery — the district court
granted the preliminary injunction.

At this stage of the litigation, the Philippines set forth its "net worth" theory as evidence in support
of its request for a preliminary injunction. The evidence of a discrepancy on the order of $1.55
billion, coupled with specific documentation of the paper trail, is highly probative of wrongdoing.
But we have no reason to conclude, much less require, that the Philippines must proceed on a "net
worth" theory at trial, after discovery has taken place. Therefore, even if the act of state
doctrine might bar inquiry into some official acts, thus weakening a "net worth" evidentiary theory, I
cannot conclude that the Philippines' substantive claims must fail at trial.

E. Conclusion

We cannot ignore the substantial allegations of private, unofficial acts of common theft,
misappropriation, fraud, and concealment merely because Marcos was serving as the Philippines'
president when he allegedly committed these crimes. Just because Marcos was in a position to
commit these acts when he was president does not render these acts "official." The majority
concedes that "if [Marcos] entered the public treasury at gunpoint and walked out with money or
property belonging to the Philippines, he would not be protected by the act of state doctrine."
Majority op. at 1484. This, I believe, expresses the essence of the Philippines' complaint — whether
the Marcoses raided the public treasury "at gunpoint," by extortion, or by theft.
 88

The Second Circuit addressed a similar factual situation and the identical issue we face here —
whether the act of state doctrine renders the Philippines' probability of success on the merits low —
in a well-reasoned unanimous opinion affirming the issuance of a preliminary injunction against
Marcos. Republic of the Philippines v. Marcos, 806 F.2d 344 (2d Cir. 1986). The Second Circuit
rejected Marcos' argument that the act of state doctrine precludes inquiry by the courts of this
country into his alleged misdeeds. The court held that Marcos had failed to sustain his burden of
demonstrating that the acts of theft, misappropriation, fraud, and concealment alleged by the
Philippines were all official sovereign acts, to which the act of state doctrine may apply, rather than
private acts, to which the doctrine does not apply. Id. at 348-49, 359. The court observed that our
executive branch had expressly supported the Philippines' suits against Marcos in this country. Id. at
356-57 n. 3. The court concluded that Marcos had not demonstrated that the act of state doctrine was
likely to apply reducing the Philippines' likelihood of success on the merits to less than a substantial
probability. The court also stated that, although the Philippines had requested only a preliminary
injunction and recognition of an eventual Philippine decree in that case, see id. at 361, there was "no
bar to the grant of a preliminary injunction and the district court may either itself determine
ownership or defer to Philippine proceedings," id. at 356 (emphasis added). The reasoning of the
Second Circuit is persuasive. I believe that the district court correctly concluded that, at least at this
stage of the proceedings, the act of state doctrine does not have a negative impact on the calculus of
the Philippines' likelihood of success on the merits.

The majority's attempt to distinguish the Second Circuit case on the ground that adjudication on the merits
would take place in the Philippines, see Majority op. at 1490 n. 25, is thus inconsistent with that court's own
assessment of the case.

A related argument advanced by the defendants and apparently adopted by the majority, see Majority op. at
1488-90, is that resolution of the merits in this case will be thwarted by problems of justifiability. The Second
Circuit found that "there is nothing more unmanageable about this case than about any other case involving
theft, misappropriation, corporate veils, and constructive trusts." Marcos, 806 F.2d at 356. I agree. Once the
role of the act of state doctrine in this case is put into proper perspective, the potential for justifiability
problems in this case does not loom large. First, no legitimate "political questions" are raised by this litigation
outside of the prudential considerations relevant to analysis of the act of state doctrine. Second, although the
district court has not yet ruled on what law will apply to each of the pendent claims, the defendants present no
basis on which to believe that the selection of appropriate state, federal, and Philippine law will be difficult.
Even if the district court ultimately determined that Philippine courts were the appropriate forum in which to
try the merits of those issues governed by Philippine law, the court would nonetheless maintain the
preliminary injunction freezing the assets pending the resolution of those issues. In such a case, the court
might still retain jurisdiction to adjudicate the claims based on federal and state law and to enforce any
judgment based on a trial in Philippine or American courts.

II. THE ISSUANCE OF THE PRELIMINARY INJUNCTION

The majority does not discuss the district court's assessment of the probability of success on the
merits of the pendent claims on which the preliminary injunction was based, because of its reliance
on the act of state doctrine. Since I believe that the act of state doctrine does not bar the preliminary
injunction, I wish to emphasize that the district court's application of the preliminary injunction test
was correct.

In order to obtain a preliminary injunction, the Philippines may "demonstrate the probability of
success on the merits and the possibility of irreparable injury or that serious questions are raised and
the balance of hardships tips sharply in its favor." Hoopa Valley Tribe v. Christie, 812 F.2d 1097,
1102 (9th Cir. 1987). We review the district court's determination with respect to probability of
success for abuse of discretion. Sierra On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415,
1422 (9th Cir. 1984). At the preliminary injunction stage, "[t]he district court is not required to make
any binding findings of fact; it need only find probabilities that the necessary facts can be
proved." Id. at 1423. The district court may "reasonably assume that more evidence in the same
vein" as that offered in support of the preliminary injunction "could be produced at trial." Id.

The majority suggests, but does not decide, that the probability of success should be determined by
looking at both the federal RICO claims, on which subject matter jurisdiction is predicated, and the
pendent claims, under which the injunction was issued. Majority op. at 1480; see also id. at 1479. I
believe that the probability of success on the merits should be determined solely by reference to the
pendent claims when, as here, the federal claims cannot support injunctive relief. See USACO Coal
 89

Co. v. Carbomin Energy, Inc., 689 F.2d 94, 98 (6th Cir. 1982) (analyzing only the pendent state
claims when RICO established subject matter jurisdiction).

This approach fully supports the policies underlying pendent jurisdiction — "the conservation of
judicial energy and the avoidance of multiplicity of litigation," Rosado v. Wyman, 397 U.S. 397,
405, 90 [Link]. 1207, 1214, 25 [Link].2d 442 (1970) — that would be defeated if plaintiffs were
encouraged to bring parallel actions in federal and state courts in order to obtain a preliminary
injunction under the pendent claims. This approach also renders unnecessary any speculation by the
district court or the court of appeals as to whether the district court would, in the exercise of its
discretion, retain or dismiss the pendent claims in the event the federal claims are dismissed on
a Rule 12(b)(6) motion or summary judgment at some later date. See In re Nucorp Energy Sec.
Litig., 772 F.2d 1486, 1490-91 (9th Cir. 1985) (retaining pendent claims after a Rule 12(b)
(6) dismissal of federal claims for reasons of judicial economy, convenience, and fairness to the
parties); Arizona v. Cook Paint Varnish Co., 541 F.2d 226, 227 (9th Cir. 1976) (per curiam), cert.
denied, 430 U.S. 915, 97 [Link]. 1327, 51 [Link].2d 593 (1977). In the event that early dismissal of the
RICO claims should occur in this case, a preliminary injunction issued solely on the basis of the
pendent claims would have preserved the status quo with respect to those claims, whether the district
court retains jurisdiction over them or decides that they should by pursued in another forum. It
would be ironic indeed if the district court were to deny a preliminary injunction in part on the basis
of an assessment of the federal claims, later dismiss those claims but retain jurisdiction over the
pendent claims, and then realize that a preliminary injunction should be issued under the retained
pendent claims. Therefore, I believe that the proper inquiry is to determine the likelihood of success
of the pendent claims alone.

In this case, the Philippines offered a verified complaint, supporting affidavits, and evidence,
including the Marcoses' income tax documents, Swiss and California bank documents showing the
establishment of accounts under aliases and the subsequent investment by Ferdinand and Imelda
Marcos of substantial amounts of funds originating in the Philippines, and deed and trust documents
reflecting a complicated series of investments by Marcos in real property in this judicial circuit.
Marcos and his co-defendants failed to offer any affidavits or evidence to contradict the affidavits
and evidence offered on behalf of the Philippines. The district court properly could presume that the
Philippines' evidence and affidavits were true. See 11 C. Wright A. Miller, Federal Practice
Procedure § 2949, at 474-75 (1973).

The materials before the district court provided a reasonable basis for it to conclude that the
Philippines would be able to establish at trial, after discovery had fully taken place, the necessary
facts to show that the Philippines had indeed been the victim of theft, misappropriation, fraud, and
concealment at the hands of the defendants. The Philippines produced documentation of the
Marcoses' past income tax returns and an affidavit of Benigno Alas, formerly a licensed CPA in the
Philippines, which analyzed those documents. The analysis strongly indicates that at least some, and
probably a large part, of the Marcoses' current assets were wrongfully acquired. Mr. Alas concluded
that the discrepancy between the Marcoses' aggregate income of $337,429 during the twenty-year
period Marcos was in office and their alleged current assets of $1.55 billion would be "extremely
difficult, if not impossible, to explain from lawful sources."

The verified complaint and an affidavit of Rafael Fernando, West Coast Representative and
Coordinator of the Philippines' Presidential Commission on Good Government, charge that the
Marcoses acquired much of these assets through conversion, fraud, deceit, use of undue influence,
and conspiracy. Although some of these allegations may be based on hearsay and thus be
inadmissible at trial, in view of the exigent circumstances attending application for a preliminary
injunction, the district court could properly consider them. See Flynt Distributing Co. v. Harvey, 734
F.2d 1389, 1394 (9th Cir. 1984); 11 C. Wright A. Miller, supra, § 2949, at 471-72. In addition, the
Philippine government, in creating the Commission on Good Government, stated that it was in
possession of evidence showing that the Marcoses' assets were wrongfully acquired through
"improper or illegal use of funds or properties owned by the Government of the Philippines . . . or by
taking undue advantage of their office, authority, influence, connections or relationship, resulting in
their unjust enrichment and causing grave damage and prejudice to the Filipino people and the
Republic of the Philippines." Executive Order No. 2, at 1; see also Executive Order No. 1, sec. 2(a).

Finally, the Philippines produced uncontroverted evidence indicating that the Marcoses have
established Swiss bank accounts under aliases and that funds were transferred to these banks through
California banks. It produced evidence of Marcos' transfer of substantial funds from the Philippines
 90

into two accounts in Lloyds Bank in California, and documentation concerning the ownership and
transfers of interests in the Beverly Hills property. The district court properly could assume that
more evidence of the paper trial "in the same vein" would be revealed once discovery had taken
place. See Sierra On-Line, 739 F.2d at 1423. The uncontroverted evidence of property and funds
acquired by the Marcoses, coupled with the evidence discussed above, supports a reasonable
conclusion by the district court that the Philippines had a "substantial likelihood" of prevailing on
the constructive trust claims for the identified property and on the accounting claim to determine
what other, as yet unidentified, property is held by the Marcoses that should also be subject to a
constructive trust. Thus, I believe that the district court clearly did not abuse its discretion in finding
a substantial likelihood of success on the pendent claims.

The district court also found that the Philippines would suffer irreparable injury without the issuance
of a preliminary injunction. The district court found a "substantial danger" that, if a preliminary
injunction were not granted, the defendants would transfer or conceal property, funds, books, and
records beyond the court's process, thereby vitiating possible relief in the return of specific property
under the constructive trust claim and in the examination of books and records under the accounting
claim. Based on the evidence of complex transfers and concealment before the district court, the
court's factual finding of "substantial danger" was not clearly erroneously Neither was the court's
conclusion that the harm to the Philippines resulting from such transfer and concealment would be
irreparable. Transfer and concealment of the books and records would prevent the court from being
able to provide meaningful relief on the accounting claim; the harm would therefore be irreparable.
Moreover, because the Philippines seeks the return of both specific, identified property in California
and as yet unidentified property under its quiet title claim, the harm from such transfer and
concealment would also be irreparable. Thus, I firmly believe that the district court did not abuse its
discretion in granting the preliminary injunction.

At a minimum, I believe that we may affirm on the alternative ground that "serious questions are
raised and the balance of hardships tips sharply" in the Philippines' favor. Hoopa Valley Tribe, 805
F.2d at 879; see also Marcos, 806 F.2d at 346 (upholding a preliminary injunction that the district
court had issued on this ground). Clearly, this case presents serious questions on the merits. See
Benda v. Grand Lodge of the Int'l Ass'n of Machinists, 584 F.2d 308, 315 (9th Cir. 1978) (stating
that the "irreducible minimum" for issuing a preliminary injunction is whether there is a "fair chance
of success on the merits" or the questions are "serious enough to require litigation"), cert.
dismissed, 441 U.S. 937, 99 [Link]. 2065, 60 [Link].2d 667 (1979). The majority opinion summarily,
and I believe wrongly, dismisses this alternative approach. Majority op. at 1489-90.

In addition, the district court stated at the conclusion of the preliminary injunction hearing:
"Balancing the hardship, the hardship is clearly greater on the side of the plaintiff." Transcript of
Preliminary Injunction Hearing at 52. In his appellate brief, Marcos stated that he would agree to
freeze the assets involved in this suit if the suit were brought in the Philippines. This statement
underscores the point that the issuance of a preliminary injunction imposes no hardship on him.
Indeed, the defendants have introduced no evidence whatsoever to show how they might be harmed
by the issuance of the preliminary injunction. The injunction is structured to ensure that Marcos will
be able to use funds to pay "attorneys' fees and normal living expenses." The only restraint is that the
Philippines must have 24 hours' notice of a request to free assets for these purposes. Should it turn
out later that the preliminary injunction was wrongfully issued, the $100,000 bond provided by the
Philippines under [Link].P. 65(c) will mitigate or cover any financial injury suffered by the
defendants as a result of the injunction. See Costandi v. AAMCO Automatic Transmissions, Inc., 456
F.2d 941, 943 (9th Cir. 1972) (per curiam); 11 C. Wright A. Miller, supra, § 2948, at 444-45.
Therefore, I believe that we may affirm on this alternative ground.

The court's written order did not include this finding. It issued the preliminary injunction instead on the basis
of substantial likelihood of success on the merits and substantial danger of irreparable harm to the Philippines.

At the very least, prudence in a case as important as this would dictate a remand to the district court
to make an explicit finding on the balance of hardships. However, in view of the district court's
express statement in open court on the balance of hardships tipping in favor of the Philippines, the
absence of any evidence of harm to the Marcoses, and Marcos' representation on appeal that he
objected to the forum, not the freezing of his assets, I believe that we may affirm on the alternative
ground fairly supported by the record.
 91

In sum, I believe that much of the majority opinion reflects a concern for whether this case should be
litigated in United States court or in Philippine courts. Whether in view of the federal and pendent
claims, and the underlying offenses against Philippine law, the district court should exercise its
discretion to defer to a forum in the Philippines is a question not before this court. The issue is the
propriety of a preliminary injunction to maintain the status quo pending the determination of the
forum non conveniens and other issues. I cannot say that the district court abused its discretion in
issuing the preliminary injunction. I therefore dissent.