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EN BANC

AASJS (ADVOCATES AND ADHERENTS OF SOCIALJUSTICE FOR SCHOOL TEACHERS AND ALLIED

WORKERS) MEMBER HECTOR GUMANGAN CALILUNG,Petitioner,

- versus -

G.R. No. 160869

Present:

PUNO, C.J.,QUISUMBING,YNARES-SANTIAGO,SANDOVAL-GUTIERREZ,CARPIO,AUSTRIA-MARTINEZ,CORONA,

CARPIO MORALES,

AZCUNA,

TINGA,CHICO-NAZARIO,GARCIA,VELASCO, JR., andNACHURA, JJ.

THE HONORABLE SIMEON DATUMANONG, in hisofficial capacity as the Secretary of Justice,

Respondent.

Promulgated:

May 11, 2007

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

DECISION

QUISUMBING, J.:

This is an original action for prohibition under Rule 65 of the 1997 Revised Rules of Civil Procedure.

Petitioner filed the instant petition against respondent, then Secretary of Justice Simeon Datumanong,

the official tasked to implement laws governing citizenship.[1] Petitioner prays that a writ of prohibition be issued

to stop respondent from implementing Republic Act No. 9225, entitled An Act Making the Citizenship of

Philippine Citizens Who Acquire Foreign Citizenship Permanent, Amending for the Purpose Commonwealth Act

No. 63, As Amended, and for Other Purposes. Petitioner avers that Rep. Act No. 9225 is unconstitutional as it

violates Section 5, Article IV of the 1987 Constitution that states, Dual allegiance of citizens is inimical to the

national interest and shall be dealt with by law.

Rep. Act No. 9225, signed into law by President Gloria M. Arroyo on August 29, 2003, reads:

SECTION 1. Short Title.This Act shall be known as the Citizenship Retention andReacquisition Act of 2003.

SEC. 2. Declaration of Policy.It is hereby declared the policy of the State that allPhilippine citizens who become citizens of another country shall be deemed not to have lost

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their Philippine citizenship under the conditions of this Act.

SEC. 3. Retention of Philippine Citizenship.Any provision of law to the contrarynotwithstanding, natural-born citizens of the Philippines who have lost their Philippinecitizenship by reason of their naturalization as citizens of a foreign country are hereby deemed

to have reacquired Philippine citizenship upon taking the following oath of allegiance to theRepublic:

I ___________________________, solemnly swear (or affirm) that I willsupport and defend the Constitution of the Republic of the Philippines andobey the laws and legal orders promulgated by the duly constitutedauthorities of the Philippines; and I hereby declare that I recognize andaccept the supreme authority of the Philippines and will maintain true faithand allegiance thereto; and that I impose this obligation upon myselfvoluntarily without mental reservation or purpose of evasion.

Natural-born citizens of the Philippines who, after the effectivity of this Act, becomecitizens of a foreign country shall retain their Philippine citizenship upon taking the aforesaidoath.

SEC. 4. Derivative Citizenship. The unmarried child, whether legitimate, illegitimateor adopted, below eighteen (18) years of age, of those who reacquire Philippine citizenshipupon effectivity of this Act shall be deemed citizens of the Philippines.

SEC. 5. Civil and Political Rights and Liabilities. Those who retain or reacquirePhilippine citizenship under this Act shall enjoy full civil and political rights and be subject to allattendant liabilities and responsibilities under existing laws of the Philippines and the followingconditions:

(1) Those intending to exercise their right of suffrage must meet therequirements under Section 1, Article V of the Constitution, Republic Act No. 9189,otherwise known as The Overseas Absentee Voting Act of 2003 and otherexisting laws;

(2) Those seeking elective public office in the Philippines shall meet thequalifications for holding such public office as required by the Constitution andexisting laws and, at the time of the filing of the certificate of candidacy, make apersonal and sworn renunciation of any and all foreign citizenship before any publicofficer authorized to administer an oath;

(3) Those appointed to any public office shall subscribe and swear to an oathof allegiance to the Republic of the Philippines and its duly constituted authoritiesprior to their assumption of office: Provided, That they renounce their oath ofallegiance to the country where they took that oath;

(4) Those intending to practice their profession in the Philippines shall applywith the proper authority for a license or permit to engage in such practice; and

(5) That right to vote or be elected or appointed to any public office in thePhilippines cannot be exercised by, or extended to, those who:

(a) are candidates for or are occupying any public office in the countryof which they are naturalized citizens; and/or

(b) are in the active service as commissioned or noncommissionedofficers in the armed forces of the country which they are naturalizedcitizens.

SEC. 6. Separability Clause. If any section or provision of this Act is heldunconstitutional or invalid, any other section or provision not affected thereby shall remainvalid and effective.

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SEC. 7. Repealing Clause. All laws, decrees, orders, rules and regulationsinconsistent with the provisions of this Act are hereby repealed or modified accordingly.

SEC. 8. Effectivity Clause. This Act shall take effect after fifteen (15) days following

its publication in the Official Gazette or two (2) newspapers of general circulation.

In this petition for prohibition, the following issues have been raised: (1) Is Rep. Act No. 9225

unconstitutional? (2) Does this Court have jurisdiction to pass upon the issue of dual allegiance?

We shall discuss these issues jointly.

Petitioner contends that Rep. Act No. 9225 cheapens Philippine citizenship. He avers that Sections 2

and 3 of Rep. Act No. 9225, together, allow dual allegiance and not dual citizenship. Petitioner maintains that

Section 2 allows all Filipinos, either natural-born or naturalized, who become foreign citizens, to retain theirPhilippine citizenship without losing their foreign citizenship. Section 3 permits dual allegiance because said law

allows natural-born citizens of the Philippines to regain their Philippine citizenship by simply taking an oath of

allegiance without forfeiting their foreign allegiance.[2] The Constitution, however, is categorical that dual

allegiance is inimical to the national interest.

The Office of the Solicitor General (OSG) claims that Section 2 merely declares as a state policy that

Philippine citizens who become citizens of another country shall be deemed not to have lost their Philippine

citizenship. The OSG further claims that the oath in Section 3 does not allow dual allegiance since the oath

taken by the former Filipino citizen is an effective renunciation and repudiation of his foreign citizenship. The fact

that the applicant taking the oath recognizes and accepts the supreme authority of the Philippines is anunmistakable and categorical affirmation of his undivided loyalty to the Republic. [3]

In resolving the aforecited issues in this case, resort to the deliberations of Congress is necessary to

determine the intent of the legislative branch in drafting the assailed law. During the deliberations, the issue of

whether Rep. Act No. 9225 would allow dual allegiance had in fact been the subject of debate. The record of the

legislative deliberations reveals the following:

x x x x

Pursuing his point, Rep. Dilangalen noted that under the measure, two situations exist - - theretention of foreign citizenship, and the reacquisition of Philippine citizenship. In this case, heobserved that there are two citizenships and therefore, two allegiances. He pointed out thatunder the Constitution, dual allegiance is inimical to public interest. He thereafter askedwhether with the creation of dual allegiance by reason of retention of foreign citizenship andthe reacquisition of Philippine citizenship, there will now be a violation of the Constitution

Rep. Locsin underscored that the measure does not seek to address the constitutionalinjunction on dual allegiance as inimical to public interest. He said that the proposed lawaims to facilitate the reacquisition of Philippine citizenship by speedy means. However,he said that in one sense, it addresses the problem of dual citizenship by requiring thetaking of an oath. He explained that the problem of dual citizenship is transferred fromthe Philippines to the foreign country because the latest oath that will be taken by the

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former Filipino is one of allegiance to the Philippines and not to the United States, asthe case may be. He added that this is a matter which the Philippine government will have noconcern and competence over.

Rep. Dilangalen asked why this will no longer be the countrys concern, when dual allegiance

is involved.

Rep. Locsin clarified that this was precisely his objection to the original version of the bill,which did not require an oath of allegiance. Since the measure now requires this oath, theproblem of dual allegiance is transferred from the Philippines to the foreign countryconcerned, he explained.

x x x x

Rep. Dilangalen asked whether in the particular case, the person did not denounce his foreigncitizenship and therefore still owes allegiance to the foreign government, and at the sametime, owes his allegiance to the Philippine government, such that there is now a case of dualcitizenship and dual allegiance.

Rep. Locsin clarified that by swearing to the supreme authority of the Republic, theperson implicitly renounces his foreign citizenship. However, he said that this is not amatter that he wishes to address in Congress because he is not a member of a foreignparliament but a Member of the House.

x x x x

Rep. Locsin replied that it is imperative that those who have dual allegiance contrary tonational interest should be dealt with by law. However, he said that the dual allegianceproblem is not addressed in the bill. He then cited the Declaration of Policy in the bill whichstates that It is hereby declared the policy of the State that all citizens who become citizens ofanother country shall be deemed not to have lost their Philippine citizenship under theconditions of this Act. He stressed that what the bill does is recognize Philippine

citizenship but says nothing about the other citizenship.

Rep. Locsin further pointed out that the problem of dual allegiance is created wherein anatural-born citizen of the Philippines takes an oath of allegiance to another country and inthat oath says that he abjures and absolutely renounces all allegiance to his country of originand swears allegiance to that foreign country. The original Bill had left it at this stage, heexplained. In the present measure, he clarified, a person is required to take an oath andthe last he utters is one of allegiance to the country. He then said that the problem ofdual allegiance is no longer the problem of the Philippines but of the other foreigncountry.[4] (Emphasis supplied.)

From the above excerpts of the legislative record, it is clear that the intent of the legislature in drafting

Rep. Act No. 9225 is to do away with the provision in Commonwealth Act No. 63 [5] which takes away Philippinecitizenship from natural-born Filipinos who become naturalized citizens of other countries. What Rep. Act No.

9225 does is allow dual citizenship to natural-born Filipino citizens who have lost Philippine citizenship by reason

of their naturalization as citizens of a foreign country. On its face, it does not recognize dual allegiance. By

swearing to the supreme authority of the Republic, the person implicitly renounces his foreign citizenship.

Plainly, from Section 3, Rep. Act No. 9225 stayed clear out of the problem of dual allegiance and shifted the

burden of confronting the issue of whether or not there is dual allegiance to the concerned foreign country.

What happens to the other citizenship was not made a concern of Rep. Act No. 9225.

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Petitioner likewise advances the proposition that although Congress has not yet passed any law on the

matter of dual allegiance, such absence of a law should not be justification why this Court could not rule on the

issue. He further contends that while it is true that there is no enabling law yet on dual allegiance, the Supreme

Court, through Mercado v. Manzano,[6] already had drawn up the guidelines on how to distinguish dual

allegiance from dual citizenship.[7]

For its part, the OSG counters that pursuant to Section 5, Article IV of the 1987 Constitution, dual

allegiance shall be dealt with by law. Thus, until a law on dual allegiance is enacted by Congress, the Supreme

Court is without any jurisdiction to entertain issues regarding dual allegiance. [8]

To begin with, Section 5, Article IV of the Constitution is a declaration of a policy and it is not a self-

executing provision. The legislature still has to enact the law on dual allegiance. In Sections 2 and 3 of Rep. Act

No. 9225, the framers were not concerned with dual citizenship per se, but with the status of naturalized citizens

who maintain their allegiance to their countries of origin even after their naturalization. [9] Congress was given a

mandate to draft a law that would set specific parameters of what really constitutes dual allegiance.[10] Until this

is done, it would be premature for the judicial department, including this Court, to rule on issues pertaining to

dual allegiance.

Neither can we subscribe to the proposition of petitioner that a law is not needed since the case of

Mercado had already set the guidelines for determining dual allegiance. Petitioner misreads Mercado. That case

did not set the parameters of what constitutes dual allegiance but merely made a distinction between dual

allegiance and dual citizenship.

Moreover, in Estrada v. Sandiganbayan,[11] we said that the courts must assume that the legislature is

ever conscious of the borders and edges of its plenary powers, and passed laws with full knowledge of the facts

and for the purpose of promoting what is right and advancing the welfare of the majority. Hence, in determining

whether the acts of the legislature are in tune with the fundamental law, we must proceed with judicial restraint

and act with caution and forbearance.[12] The doctrine of separation of powers demands no less. We cannot

arrogate the duty of setting the parameters of what constitutes dual allegiance when the Constitution itself has

clearly delegated the duty of determining what acts constitute dual allegiance for study and legislation by

Congress.

WHEREFORE, the petition is hereby DISMISSED for lack of merit.

SO ORDERED.

EN BANC

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LOIDA NICOLAS-LEWIS, GREGORIO B. MACABENTA,ALEJANDRO A. ESCLAMADO, ARMANDO B. HEREDIA,REUBEN S. SEGURITAN, ERIC LACHICA FURBEYRE,TERESITA A. CRUZ, JOSEFINA OPENA DISTERHOFT,MERCEDES V. OPENA, CORNELIO R. NATIVIDAD, EVELYN D.

NATIVIDAD,Petitioners,

- versus -

COMMISSION ON ELECTIONS,

Respondent.

G.R. No. 162759

Present:

PANGANIBAN, C.J.,PUNO,QUISUMBING,YNARES-SANTIAGO,SANDOVAL-GUTIERREZ,

CARPIO,AUSTRIA-MARTINEZ,CORONA,CARPIO-MORALES,CALLEJO, SR.,AZCUNA,TINGA,CHICO-NAZARIO,GARCIA, andVELASCO, JR., JJ.

Promulgated:

August 4, 2006x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

D E C I S I O N

GARCIA, J.:

In this petition for certiorari and mandamus, petitioners, referring to themselves as "duals" or dual

citizens, pray that they and others who retained or reacquired Philippine citizenship under Republic Act (R.A.)

No. 9225, the Citizenship Retention and ReAcquisition Act of 2003 , be allowed to avail themselves of the

mechanism provided under the Overseas Absentee Voting Act of 2003 [1] (R.A. 9189) and that the Commission

on Elections (COMELEC) accordingly be ordered to allow them to vote and register as absentee voters under

the aegis of R.A. 9189.

The facts:

Petitioners are successful applicants for recognition of Philippine citizenship under R.A. 9225 which

accords to such applicants the right of suffrage, among others. Long before the May 2004 national and local

elections, petitioners sought registration and certification as "overseas absentee voter" only to be advised by the

Philippine Embassy in the United States that, per a COMELEC letter to the Department of Foreign Affairs dated

September 23, 2003[2], they have yet no right to vote in such elections owing to their lack of the one-year

residence requirement prescribed by the Constitution. The same letter, however, urged the different Philippine

posts abroad not to discontinue their campaign for voters registration, as the residence restriction adverted to

would contextually affect merely certain individuals who would likely be eligible to vote in future elections.

Prodded for clarification by petitioner Loida Nicolas-Lewis in the light of the ruling in Macalintal vs.

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COMELEC[3] on the residency requirement, the COMELEC wrote in response:

Although R.A. 9225 enjoys the presumption of constitutionality , it is theCommission's position that those who have availed of the law cannot exercise the right ofsuffrage given under the OAVL for the reason that the OAVL was not enacted for them.

Hence, as Filipinos who have merely re-acquired their citizenship on 18 September 2003 atthe earliest, and as law and jurisprudence now stand, they are considered regular voters whohave to meet the requirements of residency, among others under Section 1, Article 5 of theConstitution. [4]

Faced with the prospect of not being able to vote in the May 2004 elections owing to the COMELEC's

refusal to include them in the National Registry of Absentee Voters, petitioner Nicolas-Lewis et al., [5] filed on

April 1, 2004 this petition for certiorari and mandamus.

A little over a week before the May 10, 2004 elections, or on April 30, 2004, the COMELEC filed a

Comment,[6] therein praying for the denial of the petition. As may be expected, petitioners were not able to

register let alone vote in said elections.

On May 20, 2004, the Office of the Solicitor General (OSG) filed a Manifestation (in Lieu of Comment),

therein stating that all qualified overseas Filipinos, including dual citizens who care to exercise the right of

suffrage, may do so , observing, however, that the conclusion of the 2004 elections had rendered the petition

moot and academic.[7]

The holding of the 2004 elections had, as the OSG pointed out, indeed rendered the petition moot and

academic, but insofar only as petitioners participation in such political exercise is concerned. The broader and

transcendental issue tendered or subsumed in the petition, i.e., the propriety of allowing duals to participate

and vote as absentee voter in future elections, however, remains unresolved.

Observing the petitioners and the COMELECs respective formulations of the issues, the same may be

reduced into the question of whether or not petitioners and others who might have meanwhile retained and/or

reacquired Philippine citizenship pursuant to R.A. 9225 may vote as absentee voter under R.A. 9189.

The Court resolves the poser in the affirmative, and thereby accords merit to the petition.

In esse, this case is all about suffrage. A quick look at the governing provisions on the right of suffrage

is, therefore, indicated.

We start off with Sections 1 and 2 of Article V of the Constitution, respectively reading as follows:

SECTION 1. Suffrage may be exercised by all citizens of the Philippines nototherwise disqualified by law, who are at least eighteen years of age, and who shall haveresided in the Philippines for at least one year and in the place wherein they propose to votefor at least six months immediately preceding the election. xxx.

SEC 2. The Congress shall provide a system for absentee voting by qualifiedFilipinos abroad.

In a nutshell, the aforequoted Section 1 prescribes residency requirement as a general eligibility factor

for the right to vote. On the other hand, Section 2 authorizes Congress to devise a system wherein an absentee

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may vote, implying that a nonresident may, as an exception to the residency prescription in the preceding

section, be allowed to vote.

In response to its above mandate, Congress enacted R.A. 9189 - the OAVL [8] - identifying in its Section

4 who can vote under it and in the following section who cannot, as follows:

Section 4. Coverage. All citizens of the Philippines abroad, who are not otherwisedisqualified by law, at least eighteen (18) years of age on the day of elections, may vote forpresident, vice-president, senators and party-list representatives.

Section 5. Disqualifications. The following shall be disqualified from voting underthis Act:

(a) Those who have lost their Filipino citizenship in accordance with Philippinelaws;

(b) Those who have expressly renounced their Philippine citizenship and whohave pledged allegiance to a foreign country;

(c) Those who have [been] convicted in a final judgment by a court ortribunal of an offense punishable by imprisonment of not less than one (1) year, includingthose who have been found guilty of Disloyalty as defined under Article 137 of the RevisedPenal Code, .;

(d) An immigrant or a permanent resident who is recognized as such in the hostcountry, unless he/she executes, upon registration, an affidavit prepared for the purpose bythe Commission declaring that he/she shall resume actual physical permanent residence inthe Philippines not later than three (3) years from approval of his/her registration under thisAct. Such affidavit shall also state that he/she has not applied for citizenship in anothercountry. Failure to return shall be the cause for the removal of the name of the immigrant orpermanent resident from the National Registry of Absentee Voters and his/her permanentdisqualification to vote in absentia.

Any citizen of the Philippines abroad previously declared insane or incompetent

by competent authority . (Words in bracket added.)

Notably, Section 5 lists those who cannot avail themselves of the absentee voting mechanism.

However, Section 5(d) of the enumeration respecting Filipino immigrants and permanent residents in another

country opens an exception and qualifies the disqualification rule. Section 5(d) would, however, face a

constitutional challenge on the ground that, as narrated in Macalintal, it -

violates Section 1, Article V of the 1987 Constitution which requires that the votermust be a resident in the Philippines for at least one year and in the place where he proposesto vote for at least six months immediately preceding an election. [The challenger] cites Caasi vs. Court of Appeals [9] to support his claim [where] the Court held that a green cardholder immigrant to the [US] is deemed to have abandoned his domicile and residence in the

Philippines.

[The challenger] further argues that Section 1, Article V of the Constitution does notallow provisional registration or a promise by a voter to perform a condition to be qualified tovote in a political exercise; that the legislature should not be allowed to circumvent therequirement of the Constitution on the right of suffrage by providing a condition thereon whichin effect amends or alters the aforesaid residence requirement to qualify a Filipino abroad tovote. He claims that the right of suffrage should not be granted to anyone who, on the date ofthe election, does not possess the qualifications provided for by Section 1, Article V of theConstitution.[10] (Words in bracket added.)

As may be recalled, the Court upheld the constitutionality of Section 5(d) of R.A. 9189 mainly on the

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strength of the following premises:

As finally approved into law, Section 5(d) of R.A. No. 9189 specifically disqualifies animmigrant orpermanent resident who is recognized as such in the host country becauseimmigration or permanent residence in another country implies renunciation of one's residence

in his country of origin. However, same Section allows an immigrant and permanent residentabroad to register as voter for as long as he/she executes an affidavit to show that he/she hasnot abandoned his domicile in pursuance of the constitutional intent expressed in Sections 1and 2 of Article V that allcitizens of the Philippines not otherwise disqualified by law must beentitled to exercise the right of suffrage and, that Congress must establish a system forabsentee voting; for otherwise, if actual, physical residence in the Philippines is required, thereis no sense for the framers of the Constitution to mandate Congress to establish a system forabsentee voting.

Contrary to the claim of [the challenger], the execution of the affidavit itself is not theenabling or enfranchising act. The affidavit required in Section 5(d) is not only proof of theintention of the immigrant or permanent resident to go back and resume residency in thePhilippines, but more significantly, it serves as an explicit expression that he had not in factabandoned his domicile of origin. Thus, it is not correct to say that the execution of theaffidavit under Section 5(d) violates the Constitution that proscribes provisional registration or

a promise by a voter to perform a condition to be qualified to vote in a political exercise. [11]

Soon after Section 5(d) of R.A. 9189 passed the test of constitutionality, Congress enacted R.A. 9225

the relevant portion of which reads:

SEC. 2. Declaration of Policy. It is hereby declared the policy of the State that allPhilippine citizens who become citizens of another country shall be deemed not to have losttheir Philippine citizenship under the conditions of this Act.

SEC. 3. Retention of Philippine Citizenship. Any provision of law to the contrarynotwithstanding, natural-born citizens of the Philippines who have lost their Philippinecitizenship by reason of their naturalization as citizens of a foreign country are hereby deemedto have re-acquired Philippine citizenship upon taking the following oath of allegiance to theRepublic:

xxx xxx xxx

Natural-born citizens of the Philippines who, after the effectivity of this Act, becomecitizens of a foreign country shall retain their Philippine citizenship upon taking the aforesaidoath.

SEC. 4. Derivative Citizenship. The unmarried child, whether legitimate, illegitimateor adopted, below eighteen (18) years of age, of those who re-acquire Philippine citizenshipupon effectivity of this Act shall be deemed citizens of the Philippines.

SEC. 5. Civil and Political Rights and Liabilities. Those who retain or re-acquirePhilippine citizenship under this Act shall enjoy full civil and political rights and be subject to allattendant liabilities and responsibilities under existing laws of the Philippines and the followingconditions:

(1) Those intending to exercise their right of suffrage must meet therequirements under Section 1, Article V of the Constitution, Republic Act No. 9189,otherwise known as The Overseas Absentee Voting Act of 2003 and other existinglaws;

(2) Those seeking elective public office in the Philippines shall meetthe qualifications for holding such public office as required by the Constitution andexisting laws and, at the time of the filing of the certificate of candidacy, make apersonal and sworn renunciation of any and all foreign citizenship ;

3) xxx xxx xxx.

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(4) xxx xxx xxx;

(5) That right to vote or be elected or appointed to any public office inthe Philippines cannot be exercised by, or extended to, those who:

(a) are candidates for or are occupying any public office in thecountry of which they are naturalized citizens; and/or

(b) are in active service as commissioned or non-commissioned officers in the armed forces of the country which they arenaturalized citizens.

After what appears to be a successful application for recognition of Philippine citizenship under R.A.

9189, petitioners now invoke their right to enjoy political rights, specifically the right of suffrage, pursuant to

Section 5 thereof.

Opposing the petitioners bid, however, respondent COMELEC invites attention to the same Section 5

(1) providing that duals can enjoy their right to vote, as an adjunct to political rights, only if they meet the

requirements of Section 1, Article V of the Constitution, R.A. 9189 and other existing laws. Capitalizing on what

at first blush is the clashing provisions of the aforecited provision of the Constitution, which, to repeat, requires

residency in the Philippines for a certain period, and R.A. 9189 which grants a Filipino non-resident absentee

voting rights,[12] COMELEC argues:

4. DUALS MUST FIRST ESTABLISH THEIR DOMICILE/ RESIDENCE IN THEPHILIPPINES

4.01. The inclusion of such additional and specific requirements in RA 9225 islogical. The duals, upon renouncement of their Filipino citizenship andacquisition of foreign citizenship, have practically and legally abandonedtheir domicile and severed their legal ties to the homeland as aconsequence. Having subsequently acquired a second citizenship (i.e.,Filipino) then, duals must, for purposes of voting, first of all, decisively anddefinitely establish their domicile through positive acts; [13]

The Court disagrees.

As may be noted, there is no provision in the dual citizenship law - R.A. 9225 - requiring "duals" to

actually establish residence and physically stay in the Philippines first before they can exercise their right to vote.

On the contrary, R.A. 9225, in implicit acknowledgment that duals are most likely non-residents, grants under

its Section 5(1) the same right of suffrage as that granted an absentee voter under R.A. 9189. It cannot be

overemphasized that R.A. 9189 aims, in essence, to enfranchise as much as possible all overseas Filipinoswho, save for the residency requirements exacted of an ordinary voter under ordinary conditions, are qualified to

vote. Thus, wrote the Court in Macalintal:

It is clear from these discussions of the Constitutional Commission that [it]intended to enfranchise as much as possible all Filipino citizens abroad who have notabandoned their domicile of origin. The Commission even intended to extend to youngFilipinos who reach voting age abroad whose parents domicile of origin is in the Philippines,and consider them qualified as voters for the first time.

It is in pursuance of that intention that the Commission provided for Section 2 [ArticleV] immediately after the residency requirement of Section 1. By the doctrine of necessaryimplication in statutory construction, , the strategic location of Section 2 indicates that the

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Constitutional Commission provided for an exception to the actual residency requirement ofSection 1 with respect to qualified Filipinos abroad. The same Commission has in effectdeclared that qualified Filipinos who are not in the Philippines may be allowed to vote eventhough they do not satisfy the residency requirement in Section 1, Article V of the Constitution.

That Section 2 of Article V of the Constitution is an exception to the residencyrequirement found in Section 1 of the same Article was in fact the subject of debate whenSenate Bill No. 2104, which became R.A. No. 9189, was deliberated upon on the Senate floor,thus:

Senator Arroyo. Mr. President, this bill should be looked into inrelation to the constitutional provisions. I think the sponsor and I wouldagree that the Constitution is supreme in any statute that we may enact.

Let me read Section 1, Article V, of the Constitution .

xxx xxx xxx

Now, Mr. President, the Constitution says, who shall have residedin the Philippines. They are permanent immigrants. They have changed

residence so they are barred under the Constitution. This is why I askedwhether this committee amendment which in fact does not alter the originaltext of the bill will have any effect on this?

Senator Angara. Good question, Mr. President. And this has beenasked in various fora. This is in compliance with the Constitution. One, theinterpretation here of residence is synonymous with domicile.

As the gentleman and I know, Mr. President, domicile is the intentto return to one's home. And the fact that a Filipino may have beenphysically absent from the Philippines and may be physically aresident of the United States, for example, but has a clear intent toreturn to the Philippines, will make him qualified as a resident of thePhilippines under this law.

This is consistent, Mr. President, with the constitutional mandatethat we that Congress must provide a franchise to overseas Filipinos.

If we read the Constitution and the suffrage principle literallyas demanding physical presence, then there is no way we can providefor offshore voting to our offshore kababayan, Mr. President.

Senator Arroyo. Mr. President, when the Constitution says, inSection 2 of Article V, it reads: The Congress shall provide a system forsecuring the secrecy and sanctity of the ballot as well as a system forabsentee voting by qualified Filipinos abroad.

The key to this whole exercise, Mr. President, is qualified. Inother words, anything that we may do or say in granting ourcompatriots abroad must be anchored on the proposition that they are

qualified. Absent the qualification, they cannot vote. And residents(sic) is a qualification.

xxx xxx xxx

Look at what the Constitution says In the place wherein theypropose to vote for at least six months immediately preceding the election.

Mr. President, all of us here have run (sic) for office.

I live in Makati. My neighbor is Pateros . We are separated onlyby a creek. But one who votes in Makati cannot vote in Pateros unless heresides in Pateros for six months. That is how restrictive our Constitution is..

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As I have said, if a voter in Makati would want to vote in Pateros,yes, he may do so. But he must do so, make the transfer six months beforethe election, otherwise, he is not qualified to vote.

xxx xxx xxxSenator Angara. It is a good point to raise, Mr. President. But it is

a point already well-debated even in the constitutional commission of 1986.And the reason Section 2 of Article V was placed immediately after thesix-month/one-year residency requirement is to demonstrateunmistakably that Section 2 which authorizes absentee voting is anexception to the six-month/one-year residency requirement. That is thefirst principle, Mr. President, that one must remember.

The second reason, Mr. President, is that under our jurisprudence residency has been interpreted as synonymous with domicile.

But the third more practical reason, is, if we follow theinterpretation of the gentleman, then it is legally and constitutionally

impossible to give a franchise to vote to overseas Filipinos who do notphysically live in the country, which is quite ridiculous because that isexactly the whole point of this exercise to enfranchise them andempower them to vote. [14] (Emphasis and words in bracket added;citations omitted)

Lest it be overlooked, no less than the COMELEC itself admits that the Citizenship Retention and

ReAcquisition Act expanded the coverage of overseas absentee voting. According to the poll body:

1.05 With the passage of RA 9225 the scope of overseas absentee voting has beenconsequently expanded so as to include Filipinos who are also citizens of other countries,subject, however, to the strict prerequisites indicated in the pertinent provisions of RA 9225; [15]

Considering the unison intent of the Constitution and R.A. 9189 and the expansion of the scope of that

law with the passage of R.A. 9225, the irresistible conclusion is that "duals" may now exercise the right of

suffrage thru the absentee voting scheme and as overseas absentee voters. R.A. 9189 defines the terms

adverted to in the following wise:

Absentee Votingrefers to the process by which qualified citizens of the Philippinesabroad exercise their right to vote;

Overseas Absentee Voter refers to a citizen of the Philippines who is qualified toregister and vote under this Act, not otherwise disqualified by law, who is abroad on the day ofelections;

While perhaps not determinative of the issue tendered herein, we note that the expanded thrust of

R.A. 9189 extends also to what might be tag as the next generation of "duals". This may be deduced from the

inclusion of the provision on derivative citizenship in R.A. 9225 which reads:

SEC. 4. Derivative Citizenship. The unmarried child, whether legitimate, illegitimateor adopted, below eighteen (18) years of age, of those who re-acquire Philippine citizenshipupon effectivity of this Act shall be deemed citizens of the Philippines.

It is very likely that a considerable number of those unmarried children below eighteen (18)

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years of age had never set foot in the Philippines. Now then, if the next generation of "duals" may

nonetheless avail themselves the right to enjoy full civil and political rights under Section 5 of the Act, then there

is neither no rhyme nor reason why the petitioners and other present day "duals," provided they meet the

requirements under Section 1, Article V of the Constitution in relation to R.A. 9189, be denied the right of

suffrage as an overseas absentee voter. Congress could not have plausibly intended such absurd situation.

WHEREFORE, the instant petition is GRANTED. Accordingly, the Court rules and so holds that those

who retain or reacquire Philippine citizenship under Republic Act No. 9225, the Citizenship Retention and

ReAcquisition Act of 2003, may exercise the right to vote under the system of absentee voting in Republic Act

No. 9189, the Overseas Absentee Voting Act of 2003.

SO ORDERED.

EN BANC

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

WIGBERTO E. TAADA and ANNA DOMINIQUE COSETENG, as

members of the Philippine Senate and as taxpayers;GREGORIO ANDOLANA and JOKER ARROYO as members ofthe House of Representatives and as taxpayers; NICANOR P.PERLAS and HORACIO R. MORALES, both as taxpayers;CIVIL LIBERTIES UNION, NATIONAL ECONOMICPROTECTIONISM ASSOCIATION, CENTER FORALTERNATIVE DEVELOPMENT INITIATIVES, LIKAS-KAYANGKAUNLARAN FOUNDATION, INC., PHILIPPINE RURALRECONSTRUCTION MOVEMENT, DEMOKRATIKONGKILUSAN NG MAGBUBUKID NG PILIPINAS, INC., andPHILIPPINE PEASANT INSTITUTE, in representation ofvarious taxpayers and as non-governmental organizations,

petitioners, vs. EDGARDO ANGARA, ALBERTO ROMULO,LETICIA RAMOS-SHAHANI, HEHERSON ALVAREZ, AGAPITOAQUINO, RODOLFO BIAZON, NEPTALI GONZALES, ERNESTOHERRERA, JOSE LINA, GLORIA MACAPAGAL-ARROYO,ORLANDO MERCADO, BLAS OPLE, JOHN OSMEA,SANTANINA RASUL, RAMON REVILLA, RAUL ROCO,

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FRANCISCO TATAD and FREDDIE WEBB, in their respectivecapacities as members of the Philippine Senate whoconcurred in the ratification by the President of the

Philippines of the Agreement Establishing the World TradeOrganization; SALVADOR ENRIQUEZ, in his capacity asSecretary of Budget and Management; CARIDADVALDEHUESA, in her capacity as National Treasurer;RIZALINO NAVARRO, in his capacity as Secretary of Tradeand Industry; ROBERTO SEBASTIAN, in his capacity asSecretary of Agriculture; ROBERTO DE OCAMPO, in hiscapacity as Secretary of Finance; ROBERTO ROMULO, in hiscapacity as Secretary of Foreign Affairs; and TEOFISTO T.

GUINGONA, in his capacity as Executive Secretary,respondents.

D E C I S I O N

PANGANIBAN, J.:

The emergence on January 1, 1995 of the World Trade Organization, abetted bythe membership thereto of the vast majority of countries has revolutionizedinternational business and economic relations amongst states. It has irreversibly

propelled the world towards trade liberalization and economic globalization.Liberalization, globalization, deregulation and privatization, the third-millennium buzzwords, are ushering in a new borderless world of business by sweeping away asmere historical relics the heretofore traditional modes of promoting and protectingnational economies like tariffs, export subsidies, import quotas, quantitativerestrictions, tax exemptions and currency controls. Finding market niches andbecoming the best in specific industries in a market-driven and export-orientedglobal scenario are replacing age-old beggar-thy-neighbor policies that unilaterallyprotect weak and inefficient domestic producers of goods and services. In the wordsof Peter Drucker, the well-known management guru, Increased participation in theworld economy has become the key to domestic economic growth and prosperity.

Brief Historical Background

To hasten worldwide recovery from the devastation wrought by the SecondWorld War, plans for the establishment of three multilateral institutions -- inspired bythat grand political body, the United Nations -- were discussed at Dumbarton Oaksand Bretton Woods. The first was the World Bank (WB) which was to address the

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rehabilitation and reconstruction of war-ravaged and later developing countries; thesecond, the International Monetary Fund (IMF) which was to deal with currencyproblems; and the third, the International Trade Organization (ITO), which was tofoster order and predictability in world trade and to minimize unilateral protectionist

policies that invite challenge, even retaliation, from other states. However, for avariety of reasons, including its non-ratification by the United States, the ITO, unlikethe IMF and WB, never took off. What remained was only GATT -- the GeneralAgreement on Tariffs and Trade. GATT was a collection of treaties governingaccess to the economies of treaty adherents with no institutionalized bodyadministering the agreements or dependable system of dispute settlement.

After half a century and several dizzying rounds of negotiations, principally theKennedy Round, the Tokyo Round and the Uruguay Round, the world finally gavebirth to that administering body -- the World Trade Organization -- with the signing ofthe Final Act in Marrakesh, Morocco and the ratification of the WTO Agreement by

its members.[1]

Like many other developing countries, the Philippines joined WTO as a foundingmember with the goal, as articulated by President Fidel V. Ramos in two letters tothe Senate (infra), of improving Philippine access to foreign markets, especially itsmajor trading partners, through the reduction of tariffs on its exports, particularlyagricultural and industrial products. The President also saw in the WTO theopening of new opportunities for the services sector x x x, (the reduction of) costsand uncertainty associated with exporting x x x, and (the attraction of) moreinvestments into the country. Although the Chief Executive did not expresslymention it in his letter, the Philippines - - and this is of special interest to the legal

profession - - will benefit from the WTO system of dispute settlement by judicialadjudication through the independent WTO settlement bodies called (1) DisputeSettlement Panels and (2) Appellate Tribunal. Heretofore, trade disputes weresettled mainly through negotiations where solutions were arrived at frequently on thebasis of relative bargaining strengths, and where naturally, weak andunderdeveloped countries were at a disadvantage.

The Petition in Brief

Arguing mainly (1) that the WTO requires the Philippines to place nationals andproducts of member-countries on the same footing as Filipinos and local productsand (2) that the WTO intrudes, limits and/or impairs the constitutional powers ofboth Congress and the Supreme Court, the instant petition before this Court assailsthe WTO Agreement for violating the mandate of the 1987 Constitution to develop aself-reliant and independent national economy effectively controlled by Filipinos x x x(to) give preference to qualified Filipinos (and to) promote the preferential use ofFilipino labor, domestic materials and locally produced goods.

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Simply stated, does the Philippine Constitution prohibit Philippine participation inworldwide trade liberalization and economic globalization? Does it prescribePhilippine integration into a global economy that is liberalized, deregulated and

privatized? These are the main questions raised in this petition for certiorari,prohibition and mandamus under Rule 65 of the Rules of Court praying (1) for thenullification, on constitutional grounds, of the concurrence of the Philippine Senate inthe ratification by the President of the Philippines of the Agreement Establishing theWorld Trade Organization (WTO Agreement, for brevity) and (2) for the prohibitionof its implementation and enforcement through the release and utilization of publicfunds, the assignment of public officials and employees, as well as the use ofgovernment properties and resources by respondent-heads of various executiveoffices concerned therewith. This concurrence is embodied in Senate ResolutionNo. 97, dated December 14, 1994.

The Facts

On April 15, 1994, Respondent Rizalino Navarro, then Secretary of theDepartment of Trade and Industry (Secretary Navarro, for brevity), representingthe Government of the Republic of the Philippines, signed in Marrakesh, Morocco,the Final Act Embodying the Results of the Uruguay Round of MultilateralNegotiations (Final Act, for brevity).

By signing the Final Act,[2] Secretary Navarro on behalf of the Republic of thePhilippines, agreed:

(a) to submit, as appropriate, the WTO Agreement for the consideration oftheir respective competent authorities, with a view to seeking approval of theAgreement in accordance with their procedures; and

(b) to adopt the Ministerial Declarations and Decisions.

On August 12, 1994, the members of the Philippine Senate received a letterdated August 11, 1994 from the President of the Philippines, [3] stating among othersthat the Uruguay Round Final Act is hereby submitted to the Senate for itsconcurrence pursuant to Section 21, Article VII of the Constitution.

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

On December 9, 1994, the President of the Philippines certified the necessity of

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the immediate adoption of P.S. 1083, a resolution entitled Concurring in theRatification of the Agreement Establishing the World Trade Organization.[5]

On December 14, 1994, the Philippine Senate adopted Resolution No. 97 which

Resolved, as it is hereby resolved, that the Senate concur, as it hereby concurs, inthe ratification by the President of the Philippines of the Agreement Establishing theWorld Trade Organization.[6] The text of the WTO Agreement is written on pages137 et seq. of Volume I of the 36-volume Uruguay Round of Multilateral TradeNegotiations and includes various agreements and associated legal instruments(identified in the said Agreement as Annexes 1, 2 and 3 thereto and collectivelyreferred to as Multilateral Trade Agreements, for brevity) as follows:

ANNEX 1

Annex 1A: Multilateral Agreement on Trade in Goods

General Agreement on Tariffs and Trade 1994

Agreement on Agriculture

Agreement on the Application of Sanitary and

Phytosanitary Measures

Agreement on Textiles and Clothing

Agreement on Technical Barriers to Trade

Agreement on Trade-Related Investment Measures

Agreement on Implementation of Article VI of the GeneralAgreement on Tariffs and Trade 1994

Agreement on Implementation of Article VII of the General onTariffs and Trade 1994

Agreement on Pre-Shipment Inspection

Agreement on Rules of Origin

Agreement on Imports Licensing Procedures

Agreement on Subsidies and Coordinating Measures

Agreement on Safeguards

Annex 1B: General Agreement on Trade in Services and Annexes

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Annex 1C: Agreement on Trade-Related Aspects of IntellectualProperty Rights

ANNEX 2

Understanding on Rules and Procedures Governing theSettlement of Disputes

ANNEX 3

Trade Policy Review Mechanism

On December 16, 1994, the President of the Philippines signed[7] the Instrumentof Ratification, declaring:

NOW THEREFORE, be it known that I, FIDEL V. RAMOS, President of theRepublic of the Philippines, after having seen and considered the aforementionedAgreement Establishing the World Trade Organization and the agreements andassociated legal instruments included in Annexes one (1), two (2) and three (3) ofthat Agreement which are integral parts thereof, signed at Marrakesh, Morocco on15 April 1994, do hereby ratify and confirm the same and every Article and Clausethereof.

To emphasize, the WTO Agreement ratified by the President of the Philippinesis composed of the Agreement Proper and the associated legal instrumentsincluded in Annexes one (1), two (2) and three (3) of that Agreement which are

integral parts thereof.

On the other hand, the Final Act signed by Secretary Navarro embodies not onlythe WTO Agreement (and its integral annexes aforementioned) but also (1) theMinisterial Declarations and Decisions and (2) the Understanding on Commitmentsin Financial Services. In his Memorandum dated May 13, 1996,[8] the SolicitorGeneral describes these two latter documents as follows:

The Ministerial Decisions and Declarations are twenty-five declarations anddecisions on a wide range of matters, such as measures in favor of least developedcountries, notification procedures, relationship of WTO with the International

Monetary Fund (IMF), and agreements on technical barriers to trade and on disputesettlement.

The Understanding on Commitments in Financial Services dwell on, amongother things, standstill or limitations and qualifications of commitments to existingnon-conforming measures, market access, national treatment, and definitions ofnon-resident supplier of financial services, commercial presence and new financialservice.

On December 29, 1994, the present petition was filed. After careful deliberationon respondents comment and petitioners reply thereto, the Court resolved on

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December 12, 1995, to give due course to the petition, and the parties thereafterfiled their respective memoranda. The Court also requested the Honorable Lilia R.Bautista, the Philippine Ambassador to the United Nations stationed in Geneva,Switzerland, to submit a paper, hereafter referred to as Bautista Paper,[9] for brevity,

(1) providing a historical background of and (2) summarizing the said agreements.

During the Oral Argument held on August 27, 1996, the Court directed:

(a) the petitioners to submit the (1) Senate Committee Report on the matter incontroversy and (2) the transcript of proceedings/hearings in the Senate; and

(b) the Solicitor General, as counsel for respondents, to file (1) a list ofPhilippine treaties signed prior to the Philippine adherence to the WTO Agreement,which derogate from Philippine sovereignty and (2) copies of the multi-volumeWTO Agreement and other documents mentioned in the Final Act, as soon as

possible.

After receipt of the foregoing documents, the Court said it would consider thecase submitted for resolution. In a Compliance dated September 16, 1996, theSolicitor General submitted a printed copy of the 36-volume Uruguay Round ofMultilateral Trade Negotiations, and in another Compliance dated October 24, 1996,he listed the various bilateral or multilateral treaties or international instrumentsinvolving derogation of Philippine sovereignty. Petitioners, on the other hand,submitted their Compliance dated January 28, 1997, on January 30, 1997.

The Issues

In their Memorandum dated March 11, 1996, petitioners summarized the issuesas follows:

A. Whether the petition presents a political question or is otherwise notjusticiable.

B. Whether the petitioner members of the Senate who participated in thedeliberations and voting leading to the concurrence are estopped fromimpugning the validity of the Agreement Establishing the World TradeOrganization or of the validity of the concurrence.

C. Whether the provisions of the Agreement Establishing the World TradeOrganization contravene the provisions of Sec. 19, Article II, and Secs. 10 and12, Article XII, all of the 1987 Philippine Constitution.

D. Whether provisions of the Agreement Establishing the World TradeOrganization unduly limit, restrict and impair Philippine sovereignty specificallythe legislative power which, under Sec. 2, Article VI, 1987 Philippine

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Constitution is vested in the Congress of the Philippines;

E. Whether provisions of the Agreement Establishing the World TradeOrganization interfere with the exercise of judicial power.

F. Whether the respondent members of the Senate acted in grave abuse ofdiscretion amounting to lack or excess of jurisdiction when they voted forconcurrence in the ratification of the constitutionally-infirm AgreementEstablishing the World Trade Organization.

G. Whether the respondent members of the Senate acted in grave abuse ofdiscretion amounting to lack or excess of jurisdiction when they concurred onlyin the ratification of the Agreement Establishing the World Trade Organization,and not with the Presidential submission which included the Final Act,Ministerial Declaration and Decisions, and the Understanding on Commitmentsin Financial Services.

On the other hand, the Solicitor General as counsel for respondentssynthesized the several issues raised by petitioners into the following: [10]

1. Whether or not the provisions of the Agreement Establishing the WorldTrade Organization and the Agreements and Associated Legal Instrumentsincluded in Annexes one (1), two (2) and three (3) of that agreement cited bypetitioners directly contravene or undermine the letter, spirit and intent of Section19, Article II and Sections 10 and 12, Article XII of the 1987 Constitution.

2. Whether or not certain provisions of the Agreement unduly limit, restrict or

impair the exercise of legislative power by Congress.

3. Whether or not certain provisions of the Agreement impair the exercise ofjudicial power by this Honorable Court in promulgating the rules of evidence.

4. Whether or not the concurrence of the Senate in the ratification by thePresident of the Philippines of the Agreement establishing the World TradeOrganization implied rejection of the treaty embodied in the Final Act.

By raising and arguing only four issues against the seven presented bypetitioners, the Solicitor General has effectively ignored three, namely: (1) whether

the petition presents a political question or is otherwise not justiciable; (2) whetherpetitioner-members of the Senate (Wigberto E. Taada and Anna DominiqueCoseteng) are estopped from joining this suit; and (3) whether the respondent-members of the Senate acted in grave abuse of discretion when they voted forconcurrence in the ratification of the WTO Agreement. The foregoingnotwithstanding, this Court resolved to deal with these three issues thus:

(1) The political question issue -- being very fundamental and vital, andbeing a matter that probes into the very jurisdiction of this Court to hear and decidethis case -- was deliberated upon by the Court and will thus be ruled upon as the

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first issue;

(2) The matter of estoppel will not be taken up because this defense iswaivable and the respondents have effectively waived it by not pursuing it in any of

their pleadings; in any event, this issue, even if ruled in respondents favor, will notcause the petitions dismissal as there are petitioners other than the two senators,who are not vulnerable to the defense of estoppel; and

(3) The issue of alleged grave abuse of discretion on the part of therespondent senators will be taken up as an integral part of the disposition of thefour issues raised by the Solicitor General.

During its deliberations on the case, the Court noted that the respondents didnot question the locus standiof petitioners. Hence, they are also deemed to havewaived the benefit of such issue. They probably realized that grave constitutional

issues, expenditures of public funds and serious international commitments of thenation are involved here, and that transcendental public interest requires that thesubstantive issues be met head on and decided on the merits, rather than skirted ordeflected by procedural matters.[11]

To recapitulate, the issues that will be ruled upon shortly are:

(1) DOES THE PETITION PRESENT A JUSTICIABLE CONTROVERSY?OTHERWISE STATED, DOES THE PETITION INVOLVE A POLITICALQUESTION OVER WHICH THIS COURT HAS NO JURISDICTION?

(2) DO THE PROVISIONS OF THE WTO AGREEMENT AND ITS THREEANNEXES CONTRAVENE SEC. 19, ARTICLE II, AND SECS. 10 AND 12,ARTICLE XII, OF THE PHILIPPINE CONSTITUTION?

(3) DO THE PROVISIONS OF SAID AGREEMENT AND ITS ANNEXES LIMIT,RESTRICT, OR IMPAIR THE EXERCISE OF LEGISLATIVE POWER BYCONGRESS?

(4) DO SAID PROVISIONS UNDULY IMPAIR OR INTERFERE WITH THEEXERCISE OF JUDICIAL POWER BY THIS COURT IN PROMULGATINGRULES ON EVIDENCE?

(5) WAS THE CONCURRENCE OF THE SENATE IN THE WTO AGREEMENTAND ITS ANNEXES SUFFICIENT AND/OR VALID, CONSIDERING THAT ITDID NOT INCLUDE THE FINAL ACT, MINISTERIAL DECLARATIONS ANDDECISIONS, AND THE UNDERSTANDING ON COMMITMENTS INFINANCIAL SERVICES?

The First Issue: Does the Court Have Jurisdiction Over the Controversy?

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In seeking to nullify an act of the Philippine Senate on the ground that itcontravenes the Constitution, the petition no doubt raises a justiciable controversy.Where an action of the legislative branch is seriously alleged to have infringed the

Constitution, it becomes not only the right but in fact the duty of the judiciary to settlethe dispute. The question thus posed is judicial rather than political. The duty (toadjudicate) remains to assure that the supremacy of the Constitution is upheld.[12]Once a controversy as to the application or interpretation of a constitutionalprovision is raised before this Court (as in the instant case), it becomes a legal issuewhich the Court is bound by constitutional mandate to decide. [13]

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

Judicial power includes the duty of the courts of justice to settle actual

controversies involving rights which are legally demandable and enforceable, andto determine whether or not there has been a grave abuse of discretion amountingto lack or excess of jurisdiction on the part of any branch or instrumentality of thegovernment.

The foregoing text emphasizes the judicial departments duty and power to strikedown grave abuse of discretion on the part of any branch or instrumentality ofgovernment including Congress. It is an innovation in our political law.[16] Asexplained by former Chief Justice Roberto Concepcion,[17] the judiciary is the finalarbiter on the question of whether or not a branch of government or any of itsofficials has acted without jurisdiction or in excess of jurisdiction or so capriciously asto constitute an abuse of discretion amounting to excess of jurisdiction. This is notonly a judicial power but a duty to pass judgment on matters of this nature.

As this Court has repeatedly and firmly emphasized in many cases, [18] it will notshirk, digress from or abandon its sacred duty and authority to uphold theConstitution in matters that involve grave abuse of discretion brought before it inappropriate cases, committed by any officer, agency, instrumentality or departmentof the government.

As the petition alleges grave abuse of discretion and as there is no other plain,speedy or adequate remedy in the ordinary course of law, we have no hesitation atall in holding that this petition should be given due course and the vital questionsraised therein ruled upon under Rule 65 of the Rules of Court. Indeed, certiorari,prohibition and mandamus are appropriate remedies to raise constitutional issuesand to review and/or prohibit/nullify, when proper, acts of legislative and executiveofficials. On this, we have no equivocation.

We should stress that, in deciding to take jurisdiction over this petition, this Courtwill not review the wisdom of the decision of the President and the Senate inenlisting the country into the WTO, or pass upon the merits of trade liberalization asa policy espoused by said international body. Neither will it rule on the proprietyofthe governments economic policy of reducing/removing tariffs, taxes, subsidies,

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quantitative restrictions, and other import/trade barriers. Rather, it will only exerciseits constitutional duty to determine whether or not there had been a grave abuse ofdiscretion amounting to lack or excess of jurisdiction on the part of the Senate inratifying the WTO Agreement and its three annexes.

Second Issue: The WTO Agreement and Economic Nationalism

This is the lis mota, the main issue, raised by the petition.

Petitioners vigorously argue that the letter, spirit and intent of the Constitutionmandating economic nationalism are violated by the so-called parity provisionsand national treatment clauses scattered in various parts not only of the WTO

Agreement and its annexes but also in the Ministerial Decisions and Declarationsand in the Understanding on Commitments in Financial Services.

Specifically, the flagship constitutional provisions referred to are Sec. 19,Article II, and Secs. 10 and 12, Article XII, of the Constitution, which are worded asfollows:

Article II

DECLARATION OF PRINCIPLES AND STATE POLICIES

xx xx xx xx

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

xx xx xx xx

Article XII

NATIONAL ECONOMY AND PATRIMONY

xx xx xx xx

Sec. 10. x x x. The Congress shall enact measures that will encourage theformation and operation of enterprises whose capital is wholly owned by Filipinos.

In the grant of rights, privileges, and concessions covering the nationaleconomy and patrimony, the State shall give preference to qualified Filipinos.

xx xx xx xx

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Sec. 12. The State shall promote the preferential use of Filipino labor,domestic materials and locally produced goods, and adopt measures that helpmake them competitive.

Petitioners aver that these sacred constitutional principles are desecrated by thefollowing WTO provisions quoted in their memorandum:[19]

a) In the area of investment measures related to trade in goods (TRIMS,for brevity):

Article 2

National Treatment and Quantitative Restrictions.

1. Without prejudice to other rights and obligations under GATT 1994. noMember shall apply any TRIM that is inconsistent with the provisions ofArticle III or Article XI of GATT 1994.

2. An Illustrative list of TRIMS that are inconsistent with the obligations ofgeneral elimination of quantitative restrictions provided for in paragraph Iof Article XI of GATT 1994 is contained in the Annex to this Agreement.(Agreement on Trade-Related Investment Measures, Vol. 27, UruguayRound, Legal Instruments, p.22121, emphasis supplied).

The Annex referred to reads as follows:

ANNEX

Illustrative List

1. TRIMS that are inconsistent with the obligation of national treatmentprovided for in paragraph 4 of Article III of GATT 1994 include those whichare mandatory or enforceable under domestic law or under administrativerulings, or compliance with which is necessary to obtain an advantage, andwhich require:

(a) the purchase or use by an enterprise of products of domestic origin or

from any domestic source, whether specified in terms of particularproducts, in terms of volume or value of products, or in terms ofproportion of volume or value of its local production; or

(b) that an enterprises purchases or use of imported products be limitedto an amount related to the volume or value of local products that itexports.

2. TRIMS that are inconsistent with the obligations of general elimination ofquantitative restrictions provided for in paragraph 1 of Article XI of GATT 1994include those which are mandatory or enforceable under domestic laws or under

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administrative rulings, or compliance with which is necessary to obtain anadvantage, and which restrict:

(a) the importation by an enterprise of products used in or related to the

local production that it exports;

(b) the importation by an enterprise of products used in or related to itslocal production by restricting its access to foreign exchange inflowsattributable to the enterprise; or

(c) the exportation or sale for export specified in terms of particularproducts, in terms of volume or value of products, or in terms of apreparation of volume or value of its local production. (Annex to theAgreement on Trade-Related Investment Measures, Vol. 27, UruguayRound Legal Documents, p.22125, emphasis supplied).

The paragraph 4 of Article III of GATT 1994 referred to is quoted as follows:

The products of the territory of any contracting party imported into theterritory of any other contracting party shall be accorded treatment noless favorable than that accorded to like products of national originin respect of laws, regulations and requirements affecting their internalsale, offering for sale, purchase, transportation, distribution or use. theprovisions of this paragraph shall not prevent the application of differentialinternal transportation charges which are based exclusively on theeconomic operation of the means of transport and not on the nationality ofthe product. (Article III, GATT 1947, as amended by the Protocol

Modifying Part II, and Article XXVI of GATT, 14 September 1948, 62UMTS 82-84 in relation to paragraph 1(a) of the General Agreement onTariffs and Trade 1994, Vol. 1, Uruguay Round, Legal Instruments p.177,emphasis supplied).

b) In the area of trade related aspects of intellectual property rights(TRIPS, for brevity):

Each Member shall accord to the nationals of other Memberstreatment no less favourable than that it accords to its own nationalswith regard to the protection of intellectual property... (par. 1, Article 3,Agreement on Trade-Related Aspect of Intellectual Property rights, Vol.

31, Uruguay Round, Legal Instruments, p.25432 (emphasis supplied)

(c) In the area of the General Agreement on Trade in Services:

National Treatment

1. In the sectors inscribed in its schedule, and subject to any conditionsand qualifications set out therein, each Member shall accord to servicesand service suppliers of any other Member, in respect of all measuresaffecting the supply of services, treatment no less favourable than it

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accords to its own like services and service suppliers.

2. A Member may meet the requirement of paragraph I by according toservices and service suppliers of any other Member, either formally

identical treatment or formally different treatment to that it accords to itsown like services and service suppliers.

3. Formally identical or formally different treatment shall be considered tobe less favourable if it modifies the conditions of completion in favour ofservices or service suppliers of the Member compared to like services orservice suppliers of any other Member. (Article XVII, GeneralAgreement on Trade in Services, Vol. 28, Uruguay Round LegalInstruments, p.22610 emphasis supplied).

It is petitioners position that the foregoing national treatment and parityprovisions of the WTO Agreement place nationals and products of membercountries on the same footing as Filipinos and local products, in contravention ofthe Filipino First policy of the Constitution. They allegedly render meaningless thephrase effectively controlled by Filipinos. The constitutional conflict becomes moremanifest when viewed in the context of the clear duty imposed on the Philippines asa WTO member to ensure the conformity of its laws, regulations and administrativeprocedures with its obligations as provided in the annexed agreements. [20] Petitionersfurther argue that these provisions contravene constitutional limitations on the roleexports play in national development and negate the preferential treatment accordedto Filipino labor, domestic materials and locally produced goods.

On the other hand, respondents through the Solicitor General counter (1) thatsuch Charter provisions are not self-executing and merely set out general policies;(2) that these nationalistic portions of the Constitution invoked by petitioners shouldnot be read in isolation but should be related to other relevant provisions of Art. XII,particularly Secs. 1 and 13 thereof; (3) that read properly, the cited WTO clauses donot conflict with the Constitution; and (4) that the WTO Agreement containssufficient provisions to protect developing countries like the Philippines from theharshness of sudden trade liberalization.

We shall now discuss and rule on these arguments.

Declaration of Principles Not Self-Executing

By its very title, Article II of the Constitution is a declaration of principles andstate policies. The counterpart of this article in the 1935 Constitution[21] is called thebasic political creed of the nation by Dean Vicente Sinco.[22] These principles inArticle II are not intended to be self-executing principles ready for enforcementthrough the courts.[23] They are used by the judiciary as aids or as guides in theexercise of its power of judicial review, and by the legislature in its enactment of

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laws. As held in the leading case of Kilosbayan, Incorporated vs. Morato,[24] theprinciples and state policies enumerated in Article II and some sections of Article XIIare not self-executing provisions, the disregard of which can give rise to a cause ofaction in the courts. They do not embody judicially enforceable constitutional rights

but guidelines for legislation.

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

On petitioners allegation that P.D. 1869 violates Sections 11 (PersonalDignity) 12 (Family) and 13 (Role of Youth) of Article II; Section 13 (Social Justice)of Article XIII and Section 2 (Educational Values) of Article XIV of the 1987Constitution, suffice it to state also that these are merely statements of principlesand policies. As such, they are basically not self-executing, meaning a law shouldbe passed by Congress to clearly define and effectuate such principles.

In general, therefore, the 1935 provisions were not intended to beself-executing principles ready for enforcement through the courts. Theywere rather directives addressed to the executive and to the legislature. Ifthe executive and the legislature failed to heed the directives of the article,the available remedy was not judicial but political. The electorate couldexpress their displeasure with the failure of the executive and thelegislature through the language of the ballot. (Bernas, Vol. II, p. 2).

The reasons for denying a cause of action to an alleged infringement of broadconstitutional principles are sourced from basic considerations of due process andthe lack of judicial authority to wade into the uncharted ocean of social andeconomic policy making. Mr. Justice Florentino P. Feliciano in his concurringopinion in Oposa vs. Factoran, Jr.,[26] explained these reasons as follows:

My suggestion is simply that petitioners must, before the trial court, show amore specific legal right -- a right cast in language of a significantly lower order ofgenerality than Article II (15) of the Constitution -- that is or may be violated by theactions, or failures to act, imputed to the public respondent by petitioners so thatthe trial court can validly render judgment granting all or part of the relief prayedfor. To my mind, the court should be understood as simply saying that such a morespecific legal right or rights may well exist in our corpus of law, considering thegeneral policy principles found in the Constitution and the existence of the

Philippine Environment Code, and that the trial court should have given petitionersan effective opportunity so to demonstrate, instead of aborting the proceedings ona motion to dismiss.

It seems to me important that the legal right which is an essential componentof a cause of action be a specific, operable legal right, rather than a constitutionalor statutory policy, for at least two (2) reasons. One is that unless the legal rightclaimed to have been violated or disregarded is given specification in operationalterms, defendants may well be unable to defend themselves intelligently andeffectively; in other words, there are due process dimensions to this matter.

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The second is a broader-gauge consideration -- where a specific violation oflaw or applicable regulation is not alleged or proved, petitioners can be expected tofall back on the expanded conception of judicial power in the second paragraph ofSection 1 of Article VIII of the Constitution which reads:

Section 1. x x x

Judicial power includes the duty of the courts of justice to settle actualcontroversies involving rights which are legally demandable andenforceable, and to determine whether or not there has been a graveabuse of discretion amounting to lack or excess of jurisdiction on the partof any branch or instrumentality of the Government. (Emphases supplied)

When substantive standards as general as the right to a balanced and healthyecology and the right to health are combined with remedial standards as broad

ranging as a grave abuse of discretion amounting to lack or excess of jurisdiction,the result will be, it is respectfully submitted, to propel courts into the unchartedocean of social and economic policy making. At least in respect of the vast area ofenvironmental protection and management, our courts have no claim to specialtechnical competence and experience and professional qualification. Where nospecific, operable norms and standards are shown to exist, then the policy makingdepartments -- the legislative and executive departments -- must be given a realand effective opportunity to fashion and promulgate those norms and standards,and to implement them before the courts should intervene.

Economic Nationalism Should Be Read with Other Constitutional Mandates toAttain Balanced Development of Economy

On the other hand, Secs. 10 and 12 of Article XII, apart from merely laying downgeneral principles relating to the national economy and patrimony, should be readand understood in relation to the other sections in said article, especially Secs. 1and 13 thereof which read:

Section 1. The goals of the national economy are a more equitable distributionof opportunities, income, and wealth; a sustained increase in the amount of goods

and services produced by the nation for the benefit of the people; and anexpanding productivity as the key to raising the quality of life for all, especially theunderprivileged.

The State shall promote industrialization and full employment based on soundagricultural development and agrarian reform, through industries that make full andefficient use of human and natural resources, and which are competitive in bothdomestic and foreign markets. However, the State shall protect Filipino enterprisesagainst unfair foreign competition and trade practices.

In the pursuit of these goals, all sectors of the economy and all regions of the

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country shall be given optimum opportunity to develop. x x x

x x x x x x x x x

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

As pointed out by the Solicitor General, Sec. 1 lays down the basic goals ofnational economic development, as follows:

1. A more equitable distribution of opportunities, income and wealth;

2. A sustained increase in the amount of goods and services provided by thenation for the benefit of the people; and

3. An expanding productivity as the key to raising the quality of life for allespecially the underprivileged.

With these goals in context, the Constitution then ordains the ideals of economicnationalism (1) by expressing preference in favor of qualified Filipinos in the grant ofrights, privileges and concessions covering the national economy and patrimony[27]and in the use of Filipino labor, domestic materials and locally-produced goods; (2)by mandating the State to adopt measures that help make them competitive; [28] and(3) by requiring the State to develop a self-reliant and independent nationaleconomy effectively controlled by Filipinos.[29] In similar language, the Constitution

takes into account the realities of the outside world as it requires the pursuit of atrade policy that serves the general welfare and utilizes all forms and arrangementsof exchange on the basis of equality and reciprocity; [30] and speaks of industrieswhich are competitive in both domestic and foreign markets as well as of theprotection of Filipino enterprises against unfair foreign competition and tradepractices.

It is true that in the recent case ofManila Prince Hotel vs. Government ServiceInsurance System, et al.,[31] this Court held that Sec. 10, second par., Art. XII of the1987 Constitution is a mandatory, positive command which is complete in itself andwhich 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 inoperation. It is per se judicially enforceable. However, as the constitutionalprovision itself states, it is enforceable only in regard to the grants of rights,privileges and concessions covering national economy and patrimony and not toevery aspect of trade and commerce. It refers to exceptions rather than the rule.The issue here is not whether this paragraph of Sec. 10 of Art. XII is self-executingor not. Rather, the issue is whether, as a rule, there are enough balancingprovisions in the Constitution to allow the Senate to ratify the Philippine concurrencein the WTO Agreement. And we hold that there are.

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All told, while the Constitution indeed mandates a bias in favor of Filipino goods,services, labor and enterprises, at the same time, it recognizes the need forbusiness exchange with the rest of the world on the bases of equality and reciprocity

and limits protection of Filipino enterprises only against foreign competition andtrade practices that are unfair.[32] In other words, the Constitution did not intend topursue an isolationist policy. It did not shut out foreign investments, goods andservices in the development of the Philippine economy. While the Constitution doesnot encourage the unlimited entry of foreign goods, services and investments intothe country, it does not prohibit them either. In fact, it allows an exchange on thebasis of equality and reciprocity, frowning only on foreign competition that is unfair.

WTO Recognizes Need to Protect Weak Economies

Upon the other hand, respondents maintain that the WTO itself has some built-in advantages to protect weak and developing economies, which comprise the vastmajority of its members. Unlike in the UN where major states have permanent seatsand veto powers in the Security Council, in the WTO, decisions are made on thebasis of sovereign equality, with each members vote equal in weight to that of anyother. There is no WTO equivalent of the UN Security Council.

WTO decides by consensus whenever possible, otherwise, decisions of theMinisterial Conference and the General Council shall be taken by the majority ofthe votes cast, except in cases of interpretation of the Agreement or waiver of the

obligation of a member which would require three fourths vote. Amendmentswould require two thirds vote in general. Amendments to MFN provisions and theAmendments provision will require assent of all members. Any member maywithdraw from the Agreement upon the expiration of six months from the date ofnotice of withdrawals.[33]

Hence, poor countries can protect their common interests more effectivelythrough the WTO than through one-on-one negotiations with developed countries.Within the WTO, developing countries can form powerful blocs to push theireconomic agenda more decisively than outside the Organization. This is not merelya matter of practical alliances but a negotiating strategy rooted in law. Thus, the

basic principles underlying the WTO Agreement recognize the need of developingcountries like the Philippines to share in the growth in international tradecommensurate with the needs of their economic development. These basicprinciples are found in the preamble [34] of the WTO Agreement as follows:

The Parties to this Agreement,

Recognizing that their relations in the field of trade and economic endeavourshould be conducted with a view to raising standards of living, ensuring fullemployment and a large and steadily growing volume of real income and effectivedemand, and expanding the production of and trade in goods and services, while

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allowing for the optimal use of the worlds resources in accordance with theobjective of sustainable development, seeking both to protect and preserve theenvironment and to enhance the means for doing so in a manner consistent withtheir respective needs and concerns at different levels of economic development,

Recognizing further that there is need for positive efforts designed to ensurethat developing countries, and especially the least developed among them, securea share in the growth in international trade commensurate with the needs of theireconomic development,

Being desirous of contributing to these objectives by entering into reciprocaland mutually advantageous arrangements directed to the substantial reduction oftariffs and other barriers to trade and to the elimination of discriminatory treatmentin international trade relations,

Resolved, therefore, to develop an integrated, more viable and durable

multilateral trading system encompassing the General Agreement on Tariffs andTrade, the results of past trade liberalization efforts, and all of the results of theUruguay Round of Multilateral Trade Negotiations,

Determined to preserve the basic principles and to further the objectivesunderlying this multilateral trading system, x x x. (underscoring supplied.)

Specific WTO Provisos Protect Developing Countries

So too, the Solicitor General points out that pursuant to and consistent with theforegoing basic principles, the WTO Agreement grants developing countries a morelenient treatment, giving their domestic industries some protection from the rush offoreign competition. Thus, with respect to tariffs in general, preferential treatment isgiven to developing countries in terms of the amount of tariff reduction and theperiod within which the reduction is to be spread out. Specifically, GATT requires anaverage tariff reduction rate of 36% for developed countries to be effected within aperiod of six (6) years while developing countries -- including the Philippines -- arerequired to effect an average tariff reduction of only 24% within ten (10) years.

In respect to domestic subsidy, GATT requires developed countries to reducedomestic support to agricultural products by 20% over six (6) years, as compared toonly 13% for developing countries to be effected within ten (10) years.

In regard to export subsidy for agricultural products, GATT requires developedcountries to reduce their budgetary outlays for export subsidy by 36% and exportvolumes receiving export subsidy by 21% within a period of six (6) years. Fordeveloping countries, however, the reduction rate is only two-thirds of thatprescribed for developed countries and a longer period of ten (10) years within whichto effect such reduction.

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Moreover, GATT itself has provided built-in protection from unfair foreigncompetition and trade practices including anti-dumping measures, countervailingmeasures and safeguards against import surges. Where local businesses are

jeopardized by unfair foreign competition, the Philippines can avail of thesemeasures. There is hardly therefore any basis for the statement that under theWTO, local industries and enterprises will all be wiped out and that Filipinos will bedeprived of control of the economy. Quite the contrary, the weaker situations ofdeveloping nations like the Philippines have been taken into account; thus, therewould be no basis to say that in joining the WTO, the respondents have gravelyabused their discretion. True, they have made a bold decision to steer the ship ofstate into the yet uncharted sea of economic liberalization. But such decision cannotbe set aside on the ground of grave abuse of discretion, simply because wedisagree with it or simply because we believe only in other economic policies. Asearlier stated, the Court in taking jurisdiction of this case will not pass upon the

advantages and disadvantages of trade liberalization as an economic policy. It willonly perform its constitutional duty of determining whether the Senate committedgrave abuse of discretion.

Constitution Does Not Rule Out Foreign Competition

Furthermore, the constitutional policy of a self-reliant and independent nationaleconomy[35] does not necessarily rule out the entry of foreign investments, goodsand services. It contemplates neither economic seclusion nor mendicancy in theinternational community. As explained by Constitutional Commissioner BernardoVillegas, sponsor of this constitutional policy:

Economic self-reliance is a primary objective of a developing country that iskeenly aware of overdependence on external assistance for even its most basicneeds. It does not mean autarky or economic seclusion; rather, it means avoidingmendicancy in the international community. Independence refers to the freed