EN BANC

PROF. MERLIN M. MAGALLONA, G.R No. 187167

AKBAYAN PARTY-LIST REP. RISA
HONTIVEROS, PROF. HARRY C. Present:
ROQUE, JR., AND UNIVERSITY OF
THE PHILIPPINES COLLEGE OF CORON
A, C.J.,
LAW STUDENTS, ALITHEA CARPIO,
BARBARA ACAS, VOLTAIRE VELASCO, JR.
,
ALFERES, CZARINA MAY LEONARDO-
DE CASTRO,
ALTEZ, FRANCIS ALVIN ASILO, BRION,
SHERYL BALOT, RUBY AMOR PERALTA,
BARRACA, JOSE JAVIER BAUTISTA, BERSAMIN,
ROMINA BERNARDO, VALERIE DEL CASTILLO,
PAGASA BUENAVENTURA, EDAN ABAD,
MARRI CANETE, VANN ALLEN VILLARAMA, JR.
,
DELA CRUZ, RENE DELORINO, PEREZ,
PAULYN MAY DUMAN, SHARON MENDOZA, and
ESCOTO, RODRIGO FAJARDO III, SERENO, JJ.
GIRLIE FERRER, RAOULLE OSEN
FERRER, CARLA REGINA GREPO,
ANNA MARIE CECILIA GO, IRISH
KAY KALAW, MARY ANN JOY LEE,
MARIA LUISA MANALAYSAY,
MIGUEL RAFAEL MUSNGI,
MICHAEL OCAMPO, JAKLYN HANNA
PINEDA, WILLIAM RAGAMAT,
MARICAR RAMOS, ENRIK FORT
REVILLAS, JAMES MARK TERRY
RIDON, JOHANN FRANTZ RIVERA IV,
CHRISTIAN RIVERO, DIANNE MARIE
ROA, NICHOLAS SANTIZO, MELISSA
CHRISTINA SANTOS, CRISTINE MAE
TABING, VANESSA ANNE TORNO,
MARIA ESTER VANGUARDIA, and
MARCELINO VELOSO III,
Petitioners,

- versus -
HON. EDUARDO ERMITA, IN HIS
CAPACITY AS EXECUTIVE
SECRETARY, HON. ALBERTO
ROMULO, IN HIS CAPACITY AS
SECRETARY OF THE DEPARTMENT
OF FOREIGN AFFAIRS, HON.
ROLANDO ANDAYA, IN HIS CAPACITY
AS SECRETARY OF THE DEPARTMENT
OF BUDGET AND MANAGEMENT,
HON. DIONY VENTURA, IN HIS
CAPACITY AS ADMINISTRATOR OF
THE NATIONAL MAPPING &
RESOURCE INFORMATION
AUTHORITY, and HON. HILARIO
DAVIDE, JR., IN HIS CAPACITY AS
REPRESENTATIVE OF THE
PERMANENT MISSION OF THE
REPUBLIC OF THE PHILIPPINES Promulgated:
TO THE UNITED NATIONS,
Respondents.
July 16, 2011
x ------------------------------------------------------------------------------
-----------x


D E C I S I O N


CARPIO, J.:


The Case

This original action for the writs of certiorari and prohibition assails the con
stitutionality of Republic Act No. 95221 (RA 9522) adjusting the countryfs archip
elagic baselines and classifying the baseline regime of nearby territories.


The Antecedents

In 1961, Congress passed Republic Act No. 3046 (RA 3046)2 demarcating the mariti
me baselines of the Philippines as an archipelagic State.3 This law followed the
framing of the Convention on the Territorial Sea and the Contiguous Zone in 195
8 (UNCLOS I),4 codifying, among others, the sovereign right of States parties ov
er their gterritorial sea,h the breadth of which, however, was left undetermined.
Attempts to fill this void during the second round of negotiations in Geneva in
1960 (UNCLOS II) proved futile. Thus, domestically, RA 3046 remained unchanged f
or nearly five decades, save for legislation passed in 1968 (Republic Act No. 54
46 [RA 5446]) correcting typographical errors and reserving the drawing of basel
ines around Sabah in North Borneo.

In March 2009, Congress amended RA 3046 by enacting RA 9522, the statute now und
er 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),5
which the Philippines ratified on 27 February 1984.6 Among others, UNCLOS III pr
escribes the water-land ratio, length, and contour of baselines of archipelagic
States like the Philippines7 and sets the deadline for the filing of application
for the extended continental shelf.8 Complying with these requirements, RA 9522
shortened one baseline, optimized the location of some basepoints around the Ph
ilippine archipelago and classified adjacent territories, namely, the Kalayaan I
sland Group (KIG) and the Scarborough Shoal, as gregimes of islandsh whose islands
generate their own applicable maritime zones.

Petitioners, professors of law, law students and a legislator, in their respecti
ve capacities as gcitizens, taxpayers or x x x legislators,h9 as the case may be,
assail the constitutionality of RA 9522 on two principal grounds, namely: (1) RA
9522 reduces Philippine maritime territory, and logically, the reach of the Phi
lippine statefs sovereign power, in violation of Article 1 of the 1987 Constituti
on,10 embodying the terms of the Treaty of Paris11 and ancillary treaties,12 and
(2) RA 9522 opens the countryfs waters landward of the baselines to maritime pas
sage by all vessels and aircrafts, undermining Philippine sovereignty and nation
al security, contravening the countryfs nuclear-free policy, and damaging marine
resources, in violation of relevant constitutional provisions.13

In addition, petitioners contend that RA 9522fs treatment of the KIG as gregime of
islandsh not only results in the loss of a large maritime area but also prejudic
es the livelihood of subsistence fishermen.14 To buttress their argument of terr
itorial diminution, 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 IIIfs framework of regime of islands to determine the maritime zon
es of the KIG and the Scarborough Shoal.

Commenting on the petition, respondent officials raised threshold issues questio
ning (1) the petitionfs compliance with the case or controversy requirement for j
udicial review grounded on petitionersf alleged lack of locus standi and (2) the
propriety of the writs of certiorari and prohibition to assail the constitutiona
lity of RA 9522. On the merits, respondents defended RA 9522 as the countryfs com
pliance with the terms of UNCLOS III, preserving Philippine territory over the K
IG or Scarborough Shoal. Respondents add that RA 9522 does not undermine the cou
ntryfs security, environment and economic interests or relinquish the Philippinesf
claim over Sabah.

Respondents also question the normative force, under international law, of petit
ionersf assertion that what Spain ceded to the United States under the Treaty of
Paris were the islands and all the waters found within the boundaries of the rec
tangular area drawn under the Treaty of Paris.

We left unacted petitionersf prayer for an injunctive writ.

The Issues

The petition raises the following issues:

1. Preliminarily ?

1. Whether petitioners possess locus standi to bring this suit; and
2. Whether the writs of certiorari and prohibition are the proper remedies to
assail the constitutionality of RA 9522.

2. On the merits, whether RA 9522 is unconstitutional.


The Ruling of the Court
On the threshold issues, we hold that (1) petitioners possess locus standi to br
ing this suit as citizens and (2) the writs of certiorari and prohibition are pr
oper remedies to test the constitutionality of RA 9522. On the merits, we find n
o basis to declare RA 9522 unconstitutional.

On the Threshold Issues

Petitioners Possess Locus
Standi as Citizens

Petitioners themselves undermine their assertion of locus standi as legislators
and taxpayers because the petition alleges neither infringement of legislative p
rerogative15 nor misuse of public funds,16 occasioned by the passage and impleme
ntation of RA 9522. Nonetheless, we recognize petitionersf locus standi as citize
ns with constitutionally sufficient interest in the resolution of the merits of
the case which undoubtedly raises issues of national significance necessitating
urgent resolution. Indeed, owing to the peculiar nature of RA 9522, it is unders
tandably difficult to find other litigants possessing ga more direct and specific
interesth to bring the suit, thus satisfying one of the requirements for grantin
g citizenship standing.17


The Writs of Certiorari and Prohibition
Are Proper Remedies to Test
the Constitutionality of Statutes


In praying for the dismissal of the petition on preliminary grounds, respondents
seek a strict observance of the offices of the writs of certiorari and prohibit
ion, noting that the writs cannot issue absent any showing of grave abuse of dis
cretion in the exercise of judicial, quasi-judicial or ministerial powers on the
part of respondents and resulting prejudice on the part of petitioners.18

Respondentsf submission holds true in ordinary civil proceedings. When this Court
exercises its constitutional power of judicial review, however, we have, by tra
dition, viewed the writs of certiorari and prohibition as proper remedial vehicl
es to test the constitutionality of statutes,19 and indeed, of acts of other bra
nches of government.20 Issues of constitutional import are sometimes crafted out
of statutes which, while having no bearing on the personal interests of the pet
itioners, carry such relevance in the life of this nation that the Court inevita
bly finds itself constrained to take cognizance of the case and pass upon the is
sues raised, non-compliance with the letter of procedural rules notwithstanding.
The statute sought to be reviewed here is one such law.
RA 9522 is Not Unconstitutional


RA 9522 is a Statutory Tool
to Demarcate the Countryfs
Maritime Zones and Continental
Shelf Under UNCLOS III, not to
Delineate Philippine Territory


Petitioners submit that RA 9522 gdismembers a large portion of the national terri
toryh21 because it discards the pre-UNCLOS III demarcation of Philippine territor
y under the Treaty of Paris and related treaties, successively encoded in the de
finition of national territory under the 1935, 1973 and 1987 Constitutions. Peti
tioners theorize that this constitutional definition trumps any treaty or statut
ory provision denying the Philippines sovereign control over waters, beyond the
territorial sea recognized at the time of the Treaty of Paris, that Spain suppos
edly ceded to the United States. Petitioners argue that from the Treaty of Parisf
technical description, Philippine sovereignty over territorial waters extends h
undreds of nautical miles around the Philippine archipelago, embracing the recta
ngular area delineated in the Treaty of Paris.22

Petitionersf theory fails to persuade us.

UNCLOS III has nothing to do with the acquisition (or loss) of territory. It is
a multilateral treaty regulating, among others, sea-use rights over maritime zon
es (i.e., the territorial waters [12 nautical miles from the baselines], contigu
ous zone [24 nautical miles from the baselines], exclusive economic zone [200 na
utical miles from the baselines]), and continental shelves that UNCLOS III delim
its.23 UNCLOS III was the culmination of decades-long negotiations among United
Nations members to codify norms regulating the conduct of States in the worldfs o
ceans and submarine areas, recognizing coastal and archipelagic Statesf graduated
authority over a limited span of waters and submarine lands along their coasts.

On the other hand, baselines laws such as RA 9522 are enacted by UNCLOS III Stat
es parties to mark-out specific basepoints along their coasts from which baselin
es are drawn, either straight or contoured, to serve as geographic starting poin
ts to measure the breadth of the maritime zones and continental shelf. Article 4
8 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 zo
ne, the exclusive economic zone and the continental shelf. ? The breadth of the
territorial sea, the contiguous zone, the exclusive economic zone and the contin
ental shelf shall be measured from archipelagic baselines drawn in accordance wi
th 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 contine
ntal shelves. In turn, this gives notice to the rest of the international commun
ity of the scope of the maritime space and submarine areas within which States p
arties exercise treaty-based rights, namely, the exercise of sovereignty over te
rritorial waters (Article 2), the jurisdiction to enforce customs, fiscal, immig
ration, and sanitation laws in the contiguous zone (Article 33), and the right t
o exploit the living and non-living resources in the exclusive economic zone (Ar
ticle 56) and continental shelf (Article 77).

Even under petitionersf 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 wi
th 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 goutermo
st islands and drying reefs of the archipelago.h24

UNCLOS III and its ancillary baselines laws play no role in the acquisition, enl
argement or, as petitioners claim, diminution of territory. Under traditional in
ternational law typology, States acquire (or conversely, lose) territory through
occupation, accretion, cession and prescription,25 not by executing multilatera
l treaties on the regulations of sea-use rights or enacting statutes to comply w
ith the treatyfs terms to delimit maritime zones and continental shelves. Territo
rial claims to land features are outside UNCLOS III, and are instead governed by
the rules on general international law.26

RA 9522fs Use of the Framework
of Regime of Islands to Determine the
Maritime Zones of the KIG and the
Scarborough Shoal, not Inconsistent
with the Philippinesf Claim of Sovereignty
Over these Areas


Petitioners next submit that RA 9522fs use of UNCLOS IIIfs regime of islands frame
work to draw the baselines, and to measure the breadth of the applicable maritim
e zones of the KIG, gweakens our territorial claimh over that area.27 Petitioners
add that the KIGfs (and Scarborough Shoalfs) exclusion from the Philippine archipe
lagic baselines results in the loss of gabout 15,000 square nautical miles of ter
ritorial waters,h prejudicing the livelihood of subsistence fishermen.28 A compar
ison of the configuration of the baselines drawn under RA 3046 and RA 9522 and t
he extent of maritime space encompassed by each law, coupled with a reading of t
he text of RA 9522 and its congressional deliberations, vis-a-vis the Philippine
sf obligations under UNCLOS III, belie this view.

The configuration of the baselines drawn under RA 3046 and RA 9522 shows that RA
9522 merely followed the basepoints mapped by RA 3046, save for at least nine b
asepoints that RA 9522 skipped to optimize the location of basepoints and adjust
the length of one baseline (and thus comply with UNCLOS IIIfs limitation on the
maximum length of baselines). Under RA 3046, as under RA 9522, the KIG and the S
carborough Shoal lie outside of the baselines drawn around the Philippine archip
elago. This undeniable cartographic fact takes the wind out of petitionersf argum
ent branding RA 9522 as a statutory renunciation of the Philippinesf claim over t
he KIG, assuming that baselines are relevant for this purpose.

Petitionersf assertion of loss of gabout 15,000 square nautical miles of territori
al watersh under RA 9522 is similarly unfounded both in fact and law. On the cont
rary, RA 9522, by optimizing the location of basepoints, increased the Philippin
esf total maritime space (covering its internal waters, territorial sea and exclu
sive economic zone) by 145,216 square nautical miles, as shown in the table belo
w:29
Extent of maritime area using RA 3046, as amended, taking into account the Treat
y of Parisf 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, as the map below shows, the reach of the exclusive economic zone drawn und
er RA 9522 even extends way beyond the waters covered by the rectangular demarca
tion 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 delineat
ion of maritime boundaries in accordance with UNCLOS III.30


Further, petitionersf argument that the KIG now lies outside Philippine territory
because the baselines that RA 9522 draws do not enclose the KIG is negated by R
A 9522 itself. Section 2 of the law commits to text the Philippinesf continued cl
aim of sovereignty and jurisdiction over the KIG and the Scarborough Shoal:

SEC. 2. The baselines in the following areas over which the Philippines likewise
exercises sovereignty and jurisdiction shall be determined as gRegime of Islandsh
under the Republic of the Philippines consistent with Article 121 of the United
Nations Convention on the Law of the Sea (UNCLOS):
a) The Kalayaan Island Group as constituted under Presidential Decree No. 1596 a
nd
b) Bajo de Masinloc, also known as Scarborough Shoal. (Emphasis supplied)


Had Congress in RA 9522 enclosed the KIG and the Scarborough Shoal as part of th
e Philippine archipelago, adverse legal effects would have ensued. The Philippin
es would have committed a breach of two provisions of UNCLOS III. First, Article
47 (3) of UNCLOS III requires that g[t]he drawing of such baselines shall not de
part to any appreciable extent from the general configuration of the archipelago
.h Second, Article 47 (2) of UNCLOS III requires that gthe length of the baselines
shall not exceed 100 nautical miles,h save for three per cent (3%) of the total
number of baselines which can reach up to 125 nautical miles.31

Although the Philippines has consistently claimed sovereignty over the KIG32 and
the Scarborough Shoal for several decades, these outlying areas are located at
an appreciable distance from the nearest shoreline of the Philippine archipelago
,33 such that any straight baseline loped around them from the nearest basepoint
will inevitably gdepart to an appreciable extent from the general configuration
of the archipelago.h

The principal sponsor of RA 9522 in the Senate, Senator Miriam Defensor-Santiago
, took pains to emphasize the foregoing during the Senate deliberations:

What we call the Kalayaan Island Group or what the rest of the world call[] the
Spratlys and the Scarborough Shoal are outside our archipelagic baseline because
if we put them inside our baselines we might be accused of violating the provis
ion of international law which states: gThe drawing of such baseline shall not de
part to any appreciable extent from the general configuration of the archipelago
.h So sa loob ng ating baseline, dapat magkalapit ang mga islands. Dahil malayo a
ng Scarborough Shoal, hindi natin masasabing malapit sila sa atin although we ar
e still allowed by international law to claim them as our own.

This is called contested islands outside our configuration. We see that our arch
ipelago is defined by the orange line which [we] call[] archipelagic baseline. N
gayon, tingnan ninyo ang maliit na circle doon sa itaas, that is Scarborough Sho
al, itong malaking circle sa ibaba, that is Kalayaan Group or the Spratlys. Mala
yo na sila sa ating archipelago kaya kung ilihis pa natin ang dating archipelagi
c baselines para lamang masama itong dalawang circles, hindi na sila magkalapit
at baka hindi na tatanggapin ng United Nations because of the rule that it shoul
d follow the natural configuration of the archipelago.34 (Emphasis supplied)


Similarly, the length of one baseline that RA 3046 drew exceeded UNCLOS IIIfs lim
its. The need to shorten this baseline, and in addition, to optimize the locatio
n of basepoints using current maps, became imperative as discussed by respondent
s:

[T]he amendment of the baselines law was necessary to enable the Philippines to
draw the outer limits of its maritime zones including the extended continental s
helf in the manner provided by Article 47 of [UNCLOS III]. As defined by R.A. 30
46, as amended by R.A. 5446, the baselines suffer from some technical deficienci
es, to wit:

1. The length of the baseline across Moro Gulf (from Middle of 3 Rock Awash t
o Tongquil Point) is 140.06 nautical miles x x x. This exceeds the maximum lengt
h allowed under Article 47(2) of the [UNCLOS III], which states that gThe length
of such baselines shall not exceed 100 nautical miles, except that up to 3 per c
ent of the total number of baselines enclosing any archipelago may exceed that l
ength, up to a maximum length of 125 nautical miles.h
2. The selection of basepoints is not optimal. At least 9 basepoints can be s
kipped or deleted from the baselines system. This will enclose an additional 2,1
95 nautical miles of water.
3. Finally, the basepoints were drawn from maps existing in 1968, and not est
ablished by geodetic survey methods. Accordingly, some of the points, particular
ly along the west coasts of Luzon down to Palawan were later found to be located
either inland or on water, not on low-water line and drying reefs as prescribed
by Article 47.35


Hence, far from surrendering the Philippinesf claim over the KIG and the Scarboro
ugh Shoal, Congressf decision to classify the KIG and the Scarborough Shoal as geRe
gime[s] of Islandsf under the Republic of the Philippines consistent with Article
121h36 of UNCLOS III manifests the Philippine Statefs responsible observance of i
ts pacta sunt servanda obligation under UNCLOS III. Under Article 121 of UNCLOS
III, any gnaturally formed area of land, surrounded by water, which is above wate
r at high tide,h such as portions of the KIG, qualifies under the category of greg
ime of islands,h whose islands generate their own applicable maritime zones.37





Statutory Claim Over Sabah under
RA 5446 Retained


Petitionersf argument for the invalidity of RA 9522 for its failure to textualize
the Philippinesf claim over Sabah in North Borneo is also untenable. Section 2 o
f RA 5446, which RA 9522 did not repeal, keeps open the door for drawing the bas
elines of Sabah:

Section 2. The definition of the baselines of the territorial sea of the Philipp
ine Archipelago as provided in this Act is without prejudice to the delineation
of the baselines of the territorial sea around the territory of Sabah, situated
in North Borneo, over which the Republic of the Philippines has acquired dominio
n and sovereignty. (Emphasis supplied)



UNCLOS III and RA 9522 not
Incompatible with the Constitutionfs
Delineation of Internal Waters

As their final argument against the validity of RA 9522, petitioners contend tha
t the law unconstitutionally gconvertsh internal waters into archipelagic waters,
hence subjecting these waters to the right of innocent and sea lanes passage und
er UNCLOS III, including overflight. Petitioners extrapolate that these passage
rights indubitably expose Philippine internal waters to nuclear and maritime pol
lution hazards, in violation of the Constitution.38

Whether referred to as Philippine ginternal watersh under Article I of the Constit
ution39 or as garchipelagic watersh under UNCLOS III (Article 49 [1]), the Philipp
ines exercises sovereignty over the body of water lying landward of the baseline
s, including the air space over it and the submarine areas underneath. UNCLOS II
I affirms this:

Article 49. Legal status of archipelagic waters, of the air space over archipela
gic waters and of their bed and subsoil. ?

1. The sovereignty of an archipelagic State extends to the waters enclosed by
the archipelagic baselines drawn in accordance with article 47, described as ar
chipelagic waters, regardless of their depth or distance from the coast.
2. This sovereignty extends to the air space over the archipelagic waters, as
well as to their bed and subsoil, and the resources contained therein.
x x x x

4. The regime of archipelagic sea lanes passage established in this Part shall n
ot in other respects affect the status of the archipelagic waters, including the
sea lanes, or the exercise by the archipelagic State of its sovereignty over su
ch waters and their air space, bed and subsoil, and the resources contained ther
ein. (Emphasis supplied)

The fact of sovereignty, however, does not preclude the operation of municipal a
nd 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 pr
inciple of freedom of navigation. Thus, domestically, the political branches of
the Philippine government, in the competent discharge of their constitutional po
wers, may pass legislation designating routes within the archipelagic waters to
regulate innocent and sea lanes passage.40 Indeed, bills drawing nautical highwa
ys for sea lanes passage are now pending in Congress.41

In the absence of municipal legislation, international law norms, now codified i
n UNCLOS III, operate to grant innocent passage rights over the territorial sea
or archipelagic waters, subject to the treatyfs limitations and conditions for th
eir exercise.42 Significantly, the right of innocent passage is a customary inte
rnational law,43 thus automatically incorporated in the corpus of Philippine law
.44 No modern State can validly invoke its sovereignty to absolutely forbid inno
cent passage that is exercised in accordance with customary international law wi
thout 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 passage45 does not place them i
n lesser footing vis-a-vis continental coastal States which are subject, in thei
r territorial sea, to the right of innocent passage and the right of transit pas
sage through international straits. The imposition of these passage rights throu
gh 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 s
ubject to their territorial sovereignty. More importantly, the recognition of ar
chipelagic Statesf archipelago and the waters enclosed by their baselines as one
cohesive entity prevents the treatment of their islands as separate islands unde
r UNCLOS III.46 Separate islands generate their own maritime zones, placing the
waters between islands separated by more than 24 nautical miles beyond the State
sf territorial sovereignty, subjecting these waters to the rights of other States
under UNCLOS III.47


Petitionersf invocation of non-executory constitutional provisions in Article II
(Declaration of Principles and State Policies)48 must also fail. Our present sta
te of jurisprudence considers the provisions in Article II as mere legislative g
uides, which, absent enabling legislation, gdo not embody judicially enforceable
constitutional rights x x x.h49 Article II provisions serve as guides in formulat
ing and interpreting implementing legislation, as well as in interpreting execut
ory provisions of the Constitution. Although Oposa v. Factoran50 treated the rig
ht to a healthful and balanced ecology under Section 16 of Article II as an exce
ption, the present petition lacks factual basis to substantiate the claimed cons
titutional violation. The other provisions petitioners cite, relating to the pro
tection of marine wealth (Article XII, Section 2, paragraph 251) and subsistence
fishermen (Article XIII, Section 752), are not violated by RA 9522.

In fact, the demarcation of the baselines enables the Philippines to delimit its
exclusive economic zone, reserving solely to the Philippines the exploitation o
f all living and non-living resources within such zone. Such a maritime delineat
ion binds the international community since the delineation is in strict observa
nce of UNCLOS III. If the maritime delineation is contrary to UNCLOS III, the in
ternational community will of course reject it and will refuse to be bound by it
.

UNCLOS III favors States with a long coastline like the Philippines. UNCLOS III
creates a sui generis maritime space ? the exclusive economic zone ? in waters p
reviously part of the high seas. UNCLOS III grants new rights to coastal States
to exclusively exploit the resources found within this zone up to 200 nautical m
iles.53 UNCLOS III, however, preserves the traditional freedom of navigation of
other States that attached to this zone beyond the territorial sea before UNCLOS
III.


RA 9522 and the Philippinesf Maritime Zones

Petitioners hold the view that, based on the permissive text of UNCLOS III, Cong
ress was not bound to pass RA 9522.54 We have looked at the relevant provision o
f UNCLOS III55 and we find petitionersf reading plausible. Nevertheless, the prer
ogative of choosing this option belongs to Congress, not to this Court. Moreover
, the luxury of choosing this option comes at a very steep price. Absent an UNCL
OS III compliant baselines law, an archipelagic State like the Philippines will
find itself devoid of internationally acceptable baselines from where the breadt
h of its maritime zones and continental shelf is measured. This is recipe for a
two-fronted disaster: first, it sends an open invitation to the seafaring powers
to freely enter and exploit the resources in the waters and submarine areas aro
und our archipelago; and second, it weakens the countryfs case in any internation
al dispute over Philippine maritime space. These are consequences Congress wisel
y avoided.

The enactment of UNCLOS III compliant baselines law for the Philippine archipela
go and adjacent areas, as embodied in RA 9522, allows an internationally-recogni
zed delimitation of the breadth of the Philippinesf maritime zones and continenta
l shelf. RA 9522 is therefore a most vital step on the part of the Philippines i
n safeguarding its maritime zones, consistent with the Constitution and our nati
onal interest.

WHEREFORE, we DISMISS the petition.

SO ORDERED.



ANTONIO T. CARPIO
Associate Justice

WE CONCUR:





RENATO C. CORONA
Chief Justice






(Pls. see concurring opinion)
PRESBITERO J. VELASCO, JR.
Associate Justice


TERESITA J. LEONARDO-
DE CASTRO
Associate Justice

ARTURO D. BRION
Associate Justice

DIOSDADO M. PERALTA
Associate Justice




LUCAS P. BERSAMIN
Associate Justice





MARIANO C. DEL CASTILLO
Associate Justice

I certify that Mr. Justice Abad
left his concurring vote.
ROBERTO A. ABAD
Associate Justice




MARTIN S. VILLARAMA, JR.
Associate Justice
(on leave)
JOSE PORTUGAL PEREZ
Associate Justice



JOSE C. MENDOZA
Associate Justice


MARIA LOURDES P. A. SERENO
Associate Justice











CERTIFICATION


Pursuant to Section 13, Article VIII of the Constitution, I certify that the con
clusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Court.





RENATO C. CORONA
Chief Justice





























1Entitled gAn Act to Amend Certain Provisions of Republic Act No. 3046, as Amende
d by Republic Act No. 5446, to Define the Archipelagic Baselines of the Philippi
nes, and for Other Purposes.h
2 Entitled gAn Act to Define the Baselines of the Territorial Sea of the Philippi
nes.h
3 The third gWhereas Clauseh of RA 3046 expresses the import of treating the Phili
ppines as an archipelagic State:
gWHEREAS, all the waters around, between, and connecting the various islands of t
he Philippine archipelago, irrespective of their width or dimensions, have alway
s been considered as necessary appurtenances of the land territory, forming part
of the inland waters of the Philippines.h
4 One of the four conventions framed during the first United Nations Convention
on the Law of the Sea in Geneva, this treaty, excluding the Philippines, entered
into force on 10 September 1964.
5 UNCLOS III entered into force on 16 November 1994.
6 The Philippines signed the treaty on 10 December 1982.
7 Article 47, paragraphs 1-3, provide:
1. An archipelagic State may draw straight archipelagic baselines joining the ou
termost points of the outermost islands and drying reefs of the archipelago prov
ided that within such baselines are included the main islands and an area in whi
ch the ratio of the area of the water to the area of the land, including atolls,
is between 1 to 1 and 9 to 1.
2. The length of such baselines shall not exceed 100 nautical miles, except that
up to 3 per cent of the total number of baselines enclosing any archipelago may
exceed that length, up to a maximum length of 125 nautical miles.
3. The drawing of such baselines shall not depart to any appreciable extent from
the general configuration of the archipelago. (Emphasis supplied)
x x x x
8UNCLOS III entered into force on 16 November 1994. The deadline for the filing
of application is mandated in Article 4, Annex II: gWhere a coastal State intends
to establish, in accordance with article 76, the outer limits of its continenta
l shelf beyond 200 nautical miles, it shall submit particulars of such limits to
the Commission along with supporting scientific and technical data as soon as p
ossible but in any case within 10 years of the entry into force of this Conventi
on for that State. The coastal State shall at the same time give the names of an
y Commission members who have provided it with scientific and technical advice.h
(Underscoring supplied)
In a subsequent meeting, the States parties agreed that for States which became
bound by the treaty before 13 May 1999 (such as the Philippines) the ten-year pe
riod will be counted from that date. Thus, RA 9522, which took effect on 27 Marc
h 2009, barely met the deadline.
9 Rollo, p. 34.
10Which provides: gThe national territory comprises the Philippine archipelago, w
ith all the islands and waters embraced therein, and all other territories over
which the Philippines has sovereignty or jurisdiction, consisting of its terrest
rial, fluvial, and aerial domains, including its territorial sea, the seabed, th
e subsoil, the insular shelves, and other submarine areas. The waters around, be
tween, and connecting the islands of the archipelago, regardless of their breadt
h and dimensions, form part of the internal waters of the Philippines.h
11Entered into between the Unites States and Spain on 10 December 1898 following
the conclusion of the Spanish-American War. Under the terms of the treaty, Spai
n ceded to the United States gthe archipelago known as the Philippine Islandsh lyi
ng within its technical description.
12 The Treaty of Washington, between Spain and the United States (7 November 190
0), transferring to the US the islands of Cagayan, Sulu, and Sibutu and the US-G
reat Britain Convention (2 January 1930) demarcating boundary lines between the
Philippines and North Borneo.
13 Article II, Section 7, Section 8, and Section 16.
14 Allegedly in violation of Article XII, Section 2, paragraph 2 and Article XII
I, Section 7 of the Constitution.
15 Kilosbayan, Inc. v. Morato, 320 Phil. 171, 186 (1995).
16 Pascual v. Secretary of Public Works, 110 Phil. 331 (1960); Sanidad v. COMELE
C, 165 Phil. 303 (1976).
17Francisco, Jr. v. House of Representatives, 460 Phil. 830, 899 (2003) citing K
ilosbayan, Inc. v. Guingona, Jr., G.R. No. 113375, 5 May 1994, 232 SCRA 110, 155
-156 (1995) (Feliciano, J., concurring). The two other factors are: gthe characte
r of funds or assets involved in the controversy and a clear disregard of consti
tutional or statutory prohibition.h Id.
18. Rollo, pp. 144-147.
19See e.g. Aquino III v. COMELEC, G.R. No. 189793, 7 April 2010, 617 SCRA 623 (d
ismissing a petition for certiorari and prohibition assailing the constitutional
ity of Republic Act No. 9716, not for the impropriety of remedy but for lack of
merit); Aldaba v. COMELEC, G.R. No. 188078, 25 January 2010, 611 SCRA 137 (issui
ng the writ of prohibition to declare unconstitutional Republic Act No. 9591); M
acalintal v. COMELEC, 453 Phil. 586 (2003) (issuing the writs of certiorari and
prohibition declaring unconstitutional portions of Republic Act No. 9189).
20See e.g. Neri v. Senate Committee on Accountability of Public Officers and Inv
estigations, G.R. No. 180643, 25 March 2008, 549 SCRA 77 (granting a writ of cer
tiorari against the Philippine Senate and nullifying the Senate contempt order i
ssued against petitioner).
21 Rollo, p. 31.
22Respondents state in their Comment that petitionersf theory ghas not been accept
ed or recognized by either the United States or Spain,h the parties to the Treaty
of Paris. Respondents add that gno State is known to have supported this proposi
tion.h Rollo, p. 179.
23UNCLOS III belongs to that larger corpus of international law of the sea, whic
h petitioner Magallona himself defined as ga body of treaty rules and customary n
orms governing the uses of the sea, the exploitation of its resources, and the e
xercise of jurisdiction over maritime regimes. x x x xh (Merlin M. Magallona, Pri
mer on the Law of the Sea 1 [1997]) (Italicization supplied).
24 Following Article 47 (1) of UNCLOS III which provides:
An archipelagic State may draw straight archipelagic baselines joining the outer
most points of the outermost islands and drying reefs of the archipelago provide
d that within such baselines are included the main islands and an area in which
the ratio of the area of the water to the area of the land, including atolls, is
between 1 to 1 and 9 to 1. (Emphasis supplied)
25 Under the United Nations Charter, use of force is no longer a valid means of
acquiring territory.
26 The last paragraph of the preamble of UNCLOS III states that gmatters not regu
lated by this Convention continue to be governed by the rules and principles of
general international law.h
27 Rollo, p. 51.
28 Id. at 51-52, 64-66.
29 Based on figures respondents submitted in their Comment (id. at 182).
30 Under Article 74.
31 See note 7.
32 Presidential Decree No. 1596 classifies the KIG as a municipality of Palawan.
33 KIG lies around 80 nautical miles west of Palawan while Scarborough Shoal is
around 123 nautical west of Zambales.
34 Journal, Senate 14th Congress 44th Session 1416 (27 January 2009).
35 Rollo, p. 159.
36 Section 2, RA 9522.
37 Article 121 provides: gRegime of islands. ?
1. An island is a naturally formed area of land, surrounded by water, which is a
bove water at high tide.
2. Except as provided for in paragraph 3, the territorial sea, the contiguous zo
ne, the exclusive economic zone and the continental shelf of an island are deter
mined in accordance with the provisions of this Convention applicable to other l
and territory.
3. Rocks which cannot sustain human habitation or economic life of their own sha
ll have no exclusive economic zone or continental shelf.h
38 Rollo, pp. 56-57, 60-64.
39Paragraph 2, Section 2, Article XII of the Constitution uses the term garchipel
agic watersh separately from gterritorial sea.h Under UNCLOS III, an archipelagic S
tate may have internal waters ? such as those enclosed by closing lines across b
ays and mouths of rivers. See Article 50, UNCLOS III. Moreover, Article 8 (2) of
UNCLOS III provides: gWhere the establishment of a straight baseline in accordan
ce with the method set forth in article 7 has the effect of enclosing as interna
l waters areas which had not previously been considered as such, a right of inno
cent passage as provided in this Convention shall exist in those waters.h (Emphas
is supplied)
40 Mandated under Articles 52 and 53 of UNCLOS III:
Article 52. Right of innocent passage. ?
1. Subject to article 53 and without prejudice to article 50, ships of all State
s enjoy the right of innocent passage through archipelagic waters, in accordance
with Part II, section 3.
2. The archipelagic State may, without discrimination in form or in fact among f
oreign ships, suspend temporarily in specified areas of its archipelagic waters
the innocent passage of foreign ships if such suspension is essential for the pr
otection of its security. Such suspension shall take effect only after having be
en duly published. (Emphasis supplied)

Article 53. Right of archipelagic sea lanes passage. ?
1. An archipelagic State may designate sea lanes and air routes thereabove, suit
able for the continuous and expeditious passage of foreign ships and aircraft th
rough or over its archipelagic waters and the adjacent territorial sea.
2. All ships and aircraft enjoy the right of archipelagic sea lanes passage in s
uch sea lanes and air routes.
3. Archipelagic sea lanes passage means the exercise in accordance with this Con
vention of the rights of navigation and overflight in the normal mode solely for
the purpose of continuous, expeditious and unobstructed transit between one par
t of the high seas or an exclusive economic zone and another part of the high se
as or an exclusive economic zone.
4. Such sea lanes and air routes shall traverse the archipelagic waters and the
adjacent territorial sea and shall include all normal passage routes used as rou
tes for international navigation or overflight through or over archipelagic wate
rs and, within such routes, so far as ships are concerned, all normal navigation
al channels, provided that duplication of routes of similar convenience between
the same entry and exit points shall not be necessary.
5. Such sea lanes and air routes shall be defined by a series of continuous axis
lines from the entry points of passage routes to the exit points. Ships and air
craft in archipelagic sea lanes passage shall not deviate more than 25 nautical
miles to either side of such axis lines during passage, provided that such ships
and aircraft shall not navigate closer to the coasts than 10 per cent of the di
stance between the nearest points on islands bordering the sea lane.
6. An archipelagic State which designates sea lanes under this article may also
prescribe traffic separation schemes for the safe passage of ships through narro
w channels in such sea lanes.
7. An archipelagic State may, when circumstances require, after giving due publi
city thereto, substitute other sea lanes or traffic separation schemes for any s
ea lanes or traffic separation schemes previously designated or prescribed by it
.
8. Such sea lanes and traffic separation schemes shall conform to generally acce
pted international regulations.
9. In designating or substituting sea lanes or prescribing or substituting traff
ic separation schemes, an archipelagic State shall refer proposals to the compet
ent international organization with a view to their adoption. The organization m
ay adopt only such sea lanes and traffic separation schemes as may be agreed wit
h the archipelagic State, after which the archipelagic State may designate, pres
cribe or substitute them.
10. The archipelagic State shall clearly indicate the axis of the sea lanes and
the traffic separation schemes designated or prescribed by it on charts to which
due publicity shall be given.
11. Ships in archipelagic sea lanes passage shall respect applicable sea lanes a
nd traffic separation schemes established in accordance with this article.
12. If an archipelagic State does not designate sea lanes or air routes, the rig
ht of archipelagic sea lanes passage may be exercised through the routes normall
y used for international navigation. (Emphasis supplied)
41Namely, House Bill No. 4153 and Senate Bill No. 2738, identically titled gAN AC
T TO ESTABLISH THE ARCHIPELAGIC SEA LANES IN THE PHILIPPINE ARCHIPELAGIC WATERS,
PRESCRIBING THE RIGHTS AND OBLIGATIONS OF FOREIGN SHIPS AND AIRCRAFTS EXERCISIN
G THE RIGHT OF ARCHIPELAGIC SEA LANES PASSAGE THROUGH THE ESTABLISHED ARCHIPELAG
IC SEA LANES AND PROVIDING FOR THE ASSOCIATED PROTECTIVE MEASURES THEREIN.h
42 The relevant provision of UNCLOS III provides:
Article 17. Right of innocent passage. ?
Subject to this Convention, ships of all States, whether coastal or land-locked,
enjoy the right of innocent passage through the territorial sea. (Emphasis supp
lied)

Article 19. Meaning of innocent passage. ?
1. Passage is innocent so long as it is not prejudicial to the peace, good order
or security of the coastal State. Such passage shall take place in conformity w
ith this Convention and with other rules of international law.
2. Passage of a foreign ship shall be considered to be prejudicial to the peace,
good order or security of the coastal State if in the territorial sea it engage
s in any of the following activities:
(a) any threat or use of force against the sovereignty, territorial integrity or
political independence of the coastal State, or in any other manner in violatio
n of the principles of international law embodied in the Charter of the United N
ations;
(b) any exercise or practice with weapons of any kind;
(c) any act aimed at collecting information to the prejudice of the defence or s
ecurity of the coastal State;
(d) any act of propaganda aimed at affecting the defence or security of the coas
tal State;
(e) the launching, landing or taking on board of any aircraft;
(f) the launching, landing or taking on board of any military device;
(g) the loading or unloading of any commodity, currency or person contrary to th
e customs, fiscal, immigration or sanitary laws and regulations of the coastal S
tate;

(h) any act of willful and serious pollution contrary to this Convention;
(i) any fishing activities;
(j) the carrying out of research or survey activities;
(k) any act aimed at interfering with any systems of communication or any other
facilities or installations of the coastal State;
(l) any other activity not having a direct bearing on passage

Article 21. Laws and regulations of the coastal State relating to innocent passa
ge. ?
1. The coastal State may adopt laws and regulations, in conformity with the prov
isions of this Convention and other rules of international law, relating to inno
cent passage through the territorial sea, in respect of all or any of the follow
ing:
(a) the safety of navigation and the regulation of maritime traffic;
(b) the protection of navigational aids and facilities and other facilities or i
nstallations;
(c) the protection of cables and pipelines;
(d) the conservation of the living resources of the sea;
(e) the prevention of infringement of the fisheries laws and regulations of the
coastal State;
(f) the preservation of the environment of the coastal State and the prevention,
reduction and control of pollution thereof;
(g) marine scientific research and hydrographic surveys;
(h) the prevention of infringement of the customs, fiscal, immigration or sanita
ry laws and regulations of the coastal State.
2. Such laws and regulations shall not apply to the design, construction, mannin
g or equipment of foreign ships unless they are giving effect to generally accep
ted international rules or standards.
3. The coastal State shall give due publicity to all such laws and regulations.
4. Foreign ships exercising the right of innocent passage through the territoria
l sea shall comply with all such laws and regulations and all generally accepted
international regulations relating to the prevention of collisions at sea.
43The right of innocent passage through the territorial sea applies only to ship
s and not to aircrafts (Article 17, UNCLOS III). The right of innocent passage o
f aircrafts through the sovereign territory of a State arises only under an inte
rnational agreement. In contrast, the right of innocent passage through archipel
agic waters applies to both ships and aircrafts (Article 53 (12), UNCLOS III).
44Following Section 2, Article II of the Constitution: gSection 2. The Philippine
s renounces war as an instrument of national policy, adopts the generally accept
ed 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 al
l nations.h (Emphasis supplied)
45gArchipelagic sea lanes passage is essentially the same as transit passage thro
ugh straitsh to which the territorial sea of continental coastal State is subject
. R.R. Churabill and A.V. Lowe, The Law of the Sea 127 (1999).
46 Falling under Article 121 of UNCLOS III (see note 37).
47 Within the exclusive economic zone, other States enjoy the following rights u
nder UNCLOS III:

Article 58. Rights and duties of other States in the exclusive economic zone. ?
1. In the exclusive economic zone, all States, whether coastal or land-locked, e
njoy, subject to the relevant provisions of this Convention, the freedoms referr
ed to in article 87 of navigation and overflight and of the laying of submarine
cables and pipelines, and other internationally lawful uses of the sea related t
o these freedoms, such as those associated with the operation of ships, aircraft
and submarine cables and pipelines, and compatible with the other provisions of
this Convention.
2. Articles 88 to 115 and other pertinent rules of international law apply to th
e exclusive economic zone in so far as they are not incompatible with this Part.
x x x x

Beyond the exclusive economic zone, other States enjoy the freedom of the high s
eas, defined under UNCLOS III as follows:

Article 87. Freedom of the high seas. ?
1. The high seas are open to all States, whether coastal or land-locked. Freedom
of the high seas is exercised under the conditions laid down by this Convention
and by other rules of international law. It comprises, inter alia, both for coa
stal and land-locked States:
(a) freedom of navigation;
(b) freedom of overflight;
(c) freedom to lay submarine cables and pipelines, subject to Part VI;
(d) freedom to construct artificial islands and other installations permitted un
der international law, subject to Part VI;
(e) freedom of fishing, subject to the conditions laid down in section 2;
(f) freedom of scientific research, subject to Parts VI and XIII.
2. These freedoms shall be exercised by all States with due regard for the inter
ests of other States in their exercise of the freedom of the high seas, and also
with due regard for the rights under this Convention with respect to activities
in the Area.
48 See note 13.
49 Kilosbayan, Inc. v. Morato, 316 Phil. 652, 698 (1995); Tanada v. Angara, 338
Phil. 546, 580-581 (1997).
50 G.R. No. 101083, 30 July 1993, 224 SCRA 792.
51 gThe State shall protect the nationfs marine wealth in its archipelagic waters,
territorial sea, and exclusive economic zone, and reserve its use and enjoyment
exclusively to Filipino citizens.h
52gThe State shall protect the rights of subsistence fishermen, especially of loc
al communities, to the preferential use of the communal marine and fishing resou
rces, both inland and offshore. It shall provide support to such fishermen throu
gh appropriate technology and research, adequate financial, production, and mark
eting assistance, and other services. The State shall also protect, develop, and
conserve such resources. The protection shall extend to offshore fishing ground
s of subsistence fishermen against foreign intrusion. Fishworkers shall receive
a just share from their labor in the utilization of marine and fishing resources
.h
53This can extend up to 350 nautical miles if the coastal State proves its right
to claim an extended continental shelf (see UNCLOS III, Article 76, paragraphs
4(a), 5 and 6, in relation to Article 77).
54 Rollo, pp. 67-69.
55Article 47 (1) provides: gAn archipelagic State may draw straight archipelagic
baselines joining the outermost points of the outermost islands and drying reefs
of the archipelago provided that within such baselines are included the main is
lands and an area in which the ratio of the area of the water to the area of the
land, including atolls, is between 1 to 1 and 9 to 1.h (Emphasis supplied)

2.







EN BANC

THE PROVINCE OF NORTH COTABATO, duly represented by GOVERNOR JESUS SACDALAN and/
or VICE-GOVERNOR EMMANUEL PINOL, for and in his own behalf,
Petitioners,


- versus -


THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAI
N (GRP), represented by SEC. RODOLFO GARCIA, ATTY. LEAH ARMAMENTO, ATTY. SEDFREY
CANDELARIA, MARK RYAN SULLIVAN and/or GEN. HERMOGENES ESPERON, JR., the latter
in his capacity as the present and duly-appointed Presidential Adviser on the Pe
ace Process (OPAPP) or the so-called Office of the Presidential Adviser on the P
eace Process,
Respondents.
x--------------------------------------------x
CITY GOVERNMENT OF ZAMBOANGA, as represented by HON. CELSO L. LOBREGAT, City May
or of Zamboanga, and in his personal capacity as resident of the City of Zamboan
ga, Rep. MA. ISABELLE G. CLIMACO, District 1, and Rep. ERICO BASILIO A. FABIAN,
District 2, City of Zamboanga,
Petitioners,


- versus -


THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE NEGOTIATING PANEL (GRP),
as represented by RODOLFO C. GARCIA, LEAH ARMAMENTO, SEDFREY CANDELARIA, MARK R
YAN SULLIVAN and HERMOGENES ESPERON, in his capacity as the Presidential Adviser
on Peace Process,
Respondents.
x--------------------------------------------x
THE CITY OF ILIGAN, duly represented by CITY MAYOR LAWRENCE LLUCH CRUZ,
Petitioner,


- versus ?


THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAI
N (GRP), represented by SEC. RODOLFO GARCIA, ATTY. LEAH ARMAMENTO, ATTY. SEDFREY
CANDELARIA, MARK RYAN SULLIVAN; GEN. HERMOGENES ESPERON, JR., in his capacity a
s the present and duly appointed Presidential Adviser on the Peace Process; and/
or SEC. EDUARDO ERMITA, in his capacity as Executive Secretary.
Respondents.
x--------------------------------------------x
THE PROVINCIAL GOVERNMENT OF ZAMBOANGA DEL NORTE, as represented by HON. ROLANDO
E. YEBES, in his capacity as Provincial Governor, HON. FRANCIS H. OLVIS, in his
capacity as Vice-Governor and Presiding Officer of the Sangguniang Panlalawigan
, HON. CECILIA JALOSJOS CARREON, Congresswoman, 1st Congressional District, HON.
CESAR G. JALOSJOS, Congressman, 3rd Congressional District, and Members of the
Sangguniang Panlalawigan of the Province of Zamboanga del Norte, namely, HON. SE
TH FREDERICK P. JALOSJOS, HON. FERNANDO R. CABIGON, JR., HON. ULDARICO M. MEJORA
DA II, HON. EDIONAR M. ZAMORAS, HON. EDGAR J. BAGUIO, HON. CEDRIC L. ADRIATICO,
HON. FELIXBERTO C. BOLANDO, HON. JOSEPH BRENDO C. AJERO, HON. NORBIDEIRI B. EDDI
NG, HON. ANECITO S. DARUNDAY, HON. ANGELICA J. CARREON and HON. LUZVIMINDA E. TO
RRINO,
Petitioners,


- versus -


THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE NEGOTIATING PANEL [GRP],
as represented by HON. RODOLFO C. GARCIA and HON. HERMOGENES ESPERON, in his ca
pacity as the Presidential Adviser of Peace Process,
Respondents.
x--------------------------------------------x
ERNESTO M. MACEDA, JEJOMAR C. BINAY, and AQUILINO L. PIMENTEL III,
Petitioners,


- versus -


THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE NEGOTIATING PANEL, repre
sented by its Chairman RODOLFO C. GARCIA, and the MORO ISLAMIC LIBERATION FRONT
PEACE NEGOTIATING PANEL, represented by its Chairman MOHAGHER IQBAL,
Respondents.
x--------------------------------------------x
FRANKLIN M. DRILON and ADEL ABBAS TAMANO,
Petitioners-in-Intervention.
x--------------------------------------------x
SEN. MANUEL A. ROXAS,
Petitioners-in-Intervention.
x--------------------------------------------x
MUNICIPALITY OF LINAMON duly represented by its Municipal Mayor NOEL N. DEANO,
Petitioners-in-Intervention,
x--------------------------------------------x
THE CITY OF ISABELA, BASILAN PROVINCE, represented by MAYOR CHERRYLYN P. SANTOS-
AKBAR,
Petitioners-in-Intervention.
x--------------------------------------------x
THE PROVINCE OF SULTAN KUDARAT, rep. by HON. SUHARTO T. MANGUDADATU, in his capa
city as Provincial Governor and a resident of the Province of Sultan Kudarat,
Petitioner-in-Intervention.
x-------------------------------------------x

RUY ELIAS LOPEZ, for and in his own behalf and on behalf of Indigenous Peoples i
n Mindanao Not Belonging to the MILF,
Petitioner-in-Intervention.
x--------------------------------------------x
CARLO B. GOMEZ, GERARDO S. DILIG, NESARIO G. AWAT, JOSELITO C. ALISUAG and RICHA
LEX G. JAGMIS, as citizens and residents of Palawan,
Petitioners-in-Intervention.
x--------------------------------------------x
MARINO RIDAO and KISIN BUXANI,
Petitioners-in-Intervention.
x--------------------------------------------x
MUSLIM LEGAL ASSISTANCE FOUNDATION, INC (MUSLAF),
Respondent-in-Intervention.
x--------------------------------------------x
MUSLIM MULTI-SECTORAL MOVEMENT FOR PEACE & DEVELOPMENT (MMMPD),
Respondent-in-Intervention.
x--------------------------------------------x

G.R. No. 183591

Present:

PUNO, C.J.,
QUISUMBING,
YNARES-SANTIAGO,
CARPIO,
AUSTRIA-MARTINEZ,
CORONA,
CARPIO MORALES,
AZCUNA,
TINGA,
CHICO-NAZARIO,
VELASCO, JR.,
NACHURA,
REYES,
LEONARDO-DE CASTRO, &
BRION, JJ.

Promulgated:

October 14, 2008







G.R. No. 183752




























G.R. No. 183893

























G.R. No. 183951















































G.R. No. 183962
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - -x

D E C I S I O N

CARPIO MORALES, J.:

Subject of these consolidated cases is the extent of the powers of the
President in pursuing the peace process. While the facts surrounding this cont
roversy center on the armed conflict in Mindanao between the government and the
Moro Islamic Liberation Front (MILF), the legal issue involved has a bearing on
all areas in the country where there has been a long-standing armed conflict. Y
et again, the Court is tasked to perform a delicate balancing act. It must unco
mpromisingly delineate the bounds within which the President may lawfully exerci
se her discretion, but it must do so in strict adherence to the Constitution, le
st its ruling unduly restricts the freedom of action vested by that same Constit
ution in the Chief Executive precisely to enable her to pursue the peace process
effectively.
I. FACTUAL ANTECEDENTS OF THE PETITIONS


On August 5, 2008, the Government of the Republic of the Philippines (
GRP) and the MILF, through the Chairpersons of their respective peace negotiatin
g panels, were scheduled to sign a Memorandum of Agreement on the Ancestral Doma
in (MOA-AD) Aspect of the GRP-MILF Tripoli Agreement on Peace of 2001 in Kuala L
umpur, Malaysia.

The MILF is a rebel group which was established in March 1984 when, un
der the leadership of the late Salamat Hashim, it splintered from the Moro Natio
nal Liberation Front (MNLF) then headed by Nur Misuari, on the ground, among oth
ers, of what Salamat perceived to be the manipulation of the MNLF away from an I
slamic basis towards Marxist-Maoist orientations.[1]

The signing of the MOA-AD between the GRP and the MILF was not to mate
rialize, however, for upon motion of petitioners, specifically those who filed t
heir cases before the scheduled signing of the MOA-AD, this Court issued a Tempo
rary Restraining Order enjoining the GRP from signing the same.

The MOA-AD was preceded by a long process of negotiation and the concl
uding of several prior agreements between the two parties beginning in 1996, whe
n the GRP-MILF peace negotiations began. On July 18, 1997, the GRP and MILF Pea
ce Panels signed the Agreement on General Cessation of Hostilities. The followi
ng year, they signed the General Framework of Agreement of Intent on August 27,
1998.

The Solicitor General, who represents respondents, summarizes the MOA-
AD by stating that the same contained, among others, the commitment of the parti
es to pursue peace negotiations, protect and respect human rights, negotiate wit
h sincerity in the resolution and pacific settlement of the conflict, and refrai
n from the use of threat or force to attain undue advantage while the peace nego
tiations on the substantive agenda are on-going.[2]

Early on, however, it was evident that there was not going to be any s
mooth sailing in the GRP-MILF peace process. Towards the end of 1999 up to earl
y 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 gall-out-
warh against the MILF.

When President Gloria Macapagal-Arroyo assumed office, the military of
fensive against the MILF was suspended and the government sought a resumption of
the peace talks. The MILF, according to a leading MILF member, initially respo
nded with deep reservation, but when President Arroyo asked the Government of Ma
laysia through Prime Minister Mahathir Mohammad to help convince the MILF to ret
urn to the negotiating table, the MILF convened its Central Committee to serious
ly discuss the matter and, eventually, decided to meet with the GRP.[4]

The parties met in Kuala Lumpur on March 24, 2001, with the talks bein
g facilitated by the Malaysian government, the parties signing on the same date
the Agreement on the General Framework for the Resumption of Peace Talks Between
the GRP and the MILF. The MILF thereafter suspended all its military actions.
[5]

Formal peace talks between the parties were held in Tripoli, Libya fro
m June 20-22, 2001, the outcome of which was the GRP-MILF Tripoli Agreement on P
eace (Tripoli Agreement 2001) containing the basic principles and agenda on the
following aspects of the negotiation: Security Aspect, Rehabilitation Aspect, an
d Ancestral Domain Aspect. With regard to the Ancestral Domain Aspect, the part
ies in Tripoli Agreement 2001 simply agreed gthat the same be discussed further b
y the Parties in their next meeting.h

A second round of peace talks was held in Cyberjaya, Malaysia on Augus
t 5-7, 2001 which ended with the signing of the Implementing Guidelines on the S
ecurity Aspect of the Tripoli Agreement 2001 leading to a ceasefire status betwe
en the parties. This was followed by the Implementing Guidelines on the Humanit
arian Rehabilitation and Development Aspects of the Tripoli Agreement 2001, whic
h was signed on May 7, 2002 at Putrajaya, Malaysia. Nonetheless, there were man
y incidence of violence between government forces and the MILF from 2002 to 2003
.

Meanwhile, then MILF Chairman Salamat Hashim passed away on July 13, 2
003 and he was replaced by Al Haj Murad, who was then the chief peace negotiator
of the MILF. Muradfs position as chief peace negotiator was taken over by Mohag
her Iqbal.[6]

In 2005, several exploratory talks were held between the parties in Ku
ala 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.

II. STATEMENT OF THE PROCEEDINGS


Before the Court is what is perhaps the most contentious gconsensush eve
r embodied in an instrument ? the MOA-AD which is assailed principally by the pr
esent petitions bearing docket numbers 183591, 183752, 183893, 183951 and 183962
.

Commonly impleaded as respondents are the GRP Peace Panel on Ancestral
Domain[7] and the Presidential Adviser on the Peace Process (PAPP) Hermogenes E
speron, Jr.

On July 23, 2008, the Province of North Cotabato[8] and Vice-Governor Emmanuel P
inol filed a petition, docketed as G.R. No. 183591, for Mandamus and Prohibition
with Prayer for the Issuance of Writ of Preliminary Injunction and Temporary Re
straining Order.[9] Invoking the right to information on matters of public conc
ern, petitioners seek to compel respondents to disclose and furnish them the com
plete and official copies of the MOA-AD including its attachments, and to prohib
it the slated signing of the MOA-AD, pending the disclosure of the contents of t
he MOA-AD and the holding of a public consultation thereon. Supplementarily, pe
titioners pray that the MOA-AD be declared unconstitutional.[10]

This initial petition was followed by another one, docketed as G.R. No
. 183752, also for Mandamus and Prohibition[11] filed by the City of Zamboanga,[
12] Mayor Celso Lobregat, Rep. Ma. Isabelle Climaco and Rep. Erico Basilio Fabia
n who likewise pray for similar injunctive reliefs. Petitioners herein moreover
pray that the City of Zamboanga be excluded from the Bangsamoro Homeland and/or
Bangsamoro Juridical Entity and, in the alternative, that the MOA-AD be declare
d null and void.

By Resolution of August 4, 2008, the Court issued a Temporary Restraining Order
commanding and directing public respondents and their agents to cease and desist
from formally signing the MOA-AD.[13] The Court also required the Solicitor Ge
neral to submit to the Court and petitioners the official copy of the final draf
t of the MOA-AD,[14] to which she complied.[15]

Meanwhile, the City of Iligan[16] filed a petition for Injunction and/or Declara
tory Relief, docketed as G.R. No. 183893, praying that respondents be enjoined f
rom signing the MOA-AD or, if the same had already been signed, from implementin
g the same, and that the MOA-AD be declared unconstitutional. Petitioners herei
n additionally implead Executive Secretary Eduardo Ermita as respondent.

The Province of Zamboanga del Norte,[17] Governor Rolando Yebes, Vice-Governor F
rancis Olvis, Rep. Cecilia Jalosjos-Carreon, Rep. Cesar Jalosjos, and the member
s[18] of the Sangguniang Panlalawigan of Zamboanga del Norte filed on August 15,
2008 a petition for Certiorari, Mandamus and Prohibition,[19] docketed as G.R.
No. 183951. They pray, inter alia, that the MOA-AD be declared null and void an
d without operative effect, and that respondents be enjoined from executing the
MOA-AD.

On August 19, 2008, Ernesto Maceda, Jejomar Binay, and Aquilino Pimentel III fil
ed a petition for Prohibition,[20] docketed as G.R. No. 183962, praying for a ju
dgment prohibiting and permanently enjoining respondents from formally signing a
nd executing the MOA-AD and or any other agreement derived therefrom or similar
thereto, and nullifying the MOA-AD for being unconstitutional and illegal. Peti
tioners herein additionally implead as respondent the MILF Peace Negotiating Pan
el represented by its Chairman Mohagher Iqbal.
Various parties moved to intervene and were granted leave of court to file their
petitions-/comments-in-intervention. Petitioners-in-Intervention include Senat
or Manuel A. Roxas, former Senate President Franklin Drilon and Atty. Adel Taman
o, the City of Isabela[21] and Mayor Cherrylyn Santos-Akbar, the Province of Sul
tan Kudarat[22] and Gov. Suharto Mangudadatu, the Municipality of Linamon in Lan
ao del Norte,[23] Ruy Elias Lopez of Davao City and of the Bagobo tribe, Sanggun
iang Panlungsod member Marino Ridao and businessman Kisin Buxani, both of Cotaba
to City; and lawyers Carlo Gomez, Gerardo Dilig, Nesario Awat, Joselito Alisuag,
Richalex Jagmis, all of Palawan City. The Muslim Legal Assistance Foundation,
Inc. (Muslaf) and the Muslim Multi-Sectoral Movement for Peace and Development (
MMMPD) filed their respective Comments-in-Intervention.

By subsequent Resolutions, the Court ordered the consolidation of the petitions.
Respondents filed Comments on the petitions, while some of petitioners submitt
ed their respective Replies.

Respondents, by Manifestation and Motion of August 19, 2008, stated that the Exe
cutive Department shall thoroughly review the MOA-AD and pursue further negotiat
ions to address the issues hurled against it, and thus moved to dismiss the case
s. In the succeeding exchange of pleadings, respondentsf motion was met with vig
orous opposition from petitioners.

The cases were heard on oral argument on August 15, 22 and 29, 2008 that tackled
the following principal issues:

1. 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 c
oncerned, if it is considered that consultation has become fait accompli with th
e finalization of the draft;

2. Whether the constitutionality and the legality of the MOA is ripe for adjud
ication;

3. Whether respondent Government of the Republic of the Philippines Peace Pane
l committed grave abuse of discretion amounting to lack or excess of jurisdictio
n when it negotiated and initiated the MOA vis-a-vis ISSUES Nos. 4 and 5;

4. Whether there is a violation of the peoplefs 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 Cons
titution, 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;

5. Whether by signing the MOA, the Government of the Republic of the Philippin
es 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 l
aw;

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 f
or ancestral domain in violation of Republic Act No. 8371 (THE INDIGENOUS PEOPLE
S RIGHTS ACT OF 1997), particularly Section 3(g) & Chapter VII (DELINEATION, REC
OGNITION 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;

6. Whether the inclusion/exclusion of the Province of North Cotabato, Cities o
f Zamboanga, Iligan and Isabela, and the Municipality of Linamon, Lanao del Nort
e in/from the areas covered by the projected Bangsamoro Homeland is a justiciabl
e question; and

7. Whether desistance from signing the MOA derogates any prior valid commitment
s of the Government of the Republic of the Philippines.[24]

The Court, thereafter, ordered the parties to submit their respective Memoranda.
Most of the parties submitted their memoranda on time.

III. OVERVIEW OF THE MOA-AD

As a necessary backdrop to the consideration of the objections raised
in the subject five petitions and six petitions-in-intervention against the MOA-
AD, as well as the two comments-in-intervention in favor of the MOA-AD, the Cour
t takes an overview of the MOA.

The MOA-AD identifies the Parties to it as the GRP and the MILF.

Under the heading gTerms of Referenceh (TOR), the MOA-AD includes not only four ea
rlier agreements between the GRP and MILF, but also two agreements between the G
RP and the MNLF: the 1976 Tripoli Agreement, and the Final Peace Agreement on th
e Implementation of the 1976 Tripoli Agreement, signed on September 2, 1996 duri
ng the administration of President Fidel Ramos.

The MOA-AD also identifies as TOR two local statutes ? the organic act
for the Autonomous Region in Muslim Mindanao (ARMM)[25] and the Indigenous Peop
les Rights Act (IPRA),[26] and several international law instruments ? the ILO C
onvention No. 169 Concerning Indigenous and Tribal Peoples in Independent Countr
ies in relation to the UN Declaration on the Rights of the Indigenous Peoples, a
nd the UN Charter, among others.

The MOA-AD includes as a final TOR the generic category of gcompact rig
hts entrenchment emanating from the regime of dar-ul-muafhada (or territory under
compact) and dar-ul-sulh (or territory under peace agreement) that partakes the
nature of a treaty device.h

During the height of the Muslim Empire, early Muslim jurists tended to
see the world through a simple dichotomy: there was the dar-ul-Islam (the Abode
of Islam) and dar-ul-harb (the Abode of War). The first referred to those land
s where Islamic laws held sway, while the second denoted those lands where Musli
ms were persecuted or where Muslim laws were outlawed or ineffective.[27] This w
ay of viewing the world, however, became more complex through the centuries as t
he Islamic world became part of the international community of nations.

As Muslim States entered into treaties with their neighbors, even with
distant States and inter-governmental organizations, the classical division of
the world into dar-ul-Islam and dar-ul-harb eventually lost its meaning. New te
rms were drawn up to describe novel ways of perceiving non-Muslim territories.
For instance, areas like dar-ul-muafhada (land of compact) and dar-ul-sulh (land
of treaty) referred to countries which, though under a secular regime, maintain
ed peaceful and cooperative relations with Muslim States, having been bound to e
ach other by treaty or agreement. Dar-ul-aman (land of order), on the other han
d, referred to countries which, though not bound by treaty with Muslim States, m
aintained freedom of religion for Muslims.[28]

It thus appears that the gcompact rights entrenchmenth emanating from th
e regime of dar-ul-muafhada and dar-ul-sulh simply refers to all other agreements
between the MILF and the Philippine government ? the Philippines being the land
of compact and peace agreement ? that partake of the nature of a treaty device,
gtreatyh being broadly defined as gany solemn agreement in writing that sets out u
nderstandings, obligations, and benefits for both parties which provides for a f
ramework that elaborates the principles declared in the [MOA-AD].h[29]

The MOA-AD states that the Parties gHAVE AGREED AND ACKNOWLEDGED AS FOL
LOWS,h and starts with its main body.

The main body of the MOA-AD is divided into four strands, namely, Concepts and P
rinciples, Territory, Resources, and Governance.

A. CONCEPTS AND PRINCIPLES

This strand begins with the statement that it is gthe birthright of all
Moros and all Indigenous peoples of Mindanao to identify themselves and be acce
pted as eBangsamoros.fh It defines gBangsamoro peopleh as the natives or original in
habitants of Mindanao and its adjacent islands including Palawan and the Sulu ar
chipelago at the time of conquest or colonization, and their descendants whether
mixed or of full blood, including their spouses.[30]

Thus, the concept of gBangsamoro,h as defined in this strand of the MOA-
AD, includes not only gMorosh as traditionally understood even by Muslims,[31] but
all indigenous peoples of Mindanao and its adjacent islands. The MOA-AD adds t
hat the freedom of choice of indigenous peoples shall be respected. What this f
reedom of choice consists in has not been specifically defined.

The MOA-AD proceeds to refer to the gBangsamoro homeland,h the ownership
of which is vested exclusively in the Bangsamoro people by virtue of their prio
r rights of occupation.[32] Both parties to the MOA-AD acknowledge that ancestr
al domain does not form part of the public domain.[33]

The Bangsamoro people are acknowledged as having the right to self-gov
ernance, which right is said to be rooted on ancestral territoriality exercised
originally under the suzerain authority of their sultanates and the Pat a Pangam
pong ku Ranaw. The sultanates were described as states or gkarajaan/kadatuanh res
embling a body politic endowed with all the elements of a nation-state in the mo
dern sense.[34]

The MOA-AD thus grounds the right to self-governance of the Bangsamoro
people on the past suzerain authority of the sultanates. As gathered, the terr
itory defined as the Bangsamoro homeland was ruled by several sultanates and, sp
ecifically in the case of the Maranao, by the Pat a Pangampong ku Ranaw, a confe
deration of independent principalities (pangampong) each ruled by datus and sult
ans, none of whom was supreme over the others.[35]

The MOA-AD goes on to describe the Bangsamoro people as gthe eFirst Nati
onf with defined territory and with a system of government having entered into tr
eaties of amity and commerce with foreign nations.h
The term gFirst Nationh is of Canadian origin referring to the indigenou
s peoples of that territory, particularly those known as Indians. In Canada, ea
ch of these indigenous peoples is equally entitled to be called gFirst Nation,h he
nce, all of them are usually described collectively by the plural gFirst Nations.h
[36] To that extent, the MOA-AD, by identifying the Bangsamoro people as gthe Fi
rst Nationh ? suggesting its exclusive entitlement to that designation ? departs
from the Canadian usage of the term.

The MOA-AD then mentions for the first time the gBangsamoro Juridical E
ntityh (BJE) to which it grants the authority and jurisdiction over the Ancestral
Domain and Ancestral Lands of the Bangsamoro.[37]



B. TERRITORY

The territory of the Bangsamoro homeland is described as the land mass
as well as the maritime, terrestrial, fluvial and alluvial domains, including t
he aerial domain and the atmospheric space above it, embracing the Mindanao-Sulu
-Palawan geographic region.[38]

More specifically, the core of the BJE is defined as the present geogr
aphic area of the ARMM ? thus constituting the following areas: Lanao del Sur, M
aguindanao, Sulu, Tawi-Tawi, Basilan, and Marawi City. Significantly, this core
also includes certain municipalities of Lanao del Norte that voted for inclusio
n in the ARMM in the 2001 plebiscite.[39]

Outside of this core, the BJE is to cover other provinces, cities, municipalitie
s and barangays, which are grouped into two categories, Category A and Category
B. Each of these areas is to be subjected to a plebiscite to be held on differe
nt dates, years apart from each other. Thus, Category A areas are to be subject
ed to a plebiscite not later than twelve (12) months following the signing of th
e MOA-AD.[40] Category B areas, also called gSpecial Intervention Areas,h on the
other hand, are to be subjected to a plebiscite twenty-five (25) years from the
signing of a separate agreement ? the Comprehensive Compact.[41]

The Parties to the MOA-AD stipulate that the BJE shall have jurisdicti
on over all natural resources within its ginternal waters,h defined as extending f
ifteen (15) kilometers from the coastline of the BJE area;[42] that the BJE shal
l also have gterritorial waters,h which shall stretch beyond the BJE internal wate
rs up to the baselines of the Republic of the Philippines (RP) south east and so
uth west of mainland Mindanao; and that within these territorial waters, the BJE
and the gCentral Governmenth (used interchangeably with RP) shall exercise joint
jurisdiction, authority and management over all natural resources.[43] Notably,
the jurisdiction over the internal waters is not similarly described as gjoint.h


The MOA-AD further provides for the sharing of minerals on the territo
rial waters between the Central Government and the BJE, in favor of the latter,
through production sharing and economic cooperation agreement.[44] The activiti
es which the Parties are allowed to conduct on the territorial waters are enumer
ated, among which are the exploration and utilization of natural resources, regu
lation of shipping and fishing activities, and the enforcement of police and saf
ety measures.[45] There is no similar provision on the sharing of minerals and
allowed activities with respect to the internal waters of the BJE.

C. RESOURCES

The MOA-AD states that the BJE is free to enter into any economic coop
eration and trade relations with foreign countries and shall have the option to
establish trade missions in those countries. Such relationships and understandi
ngs, however, are not to include aggression against the GRP. The BJE may also
enter into environmental cooperation agreements.[46]

The external defense of the BJE is to remain the duty and obligation o
f the Central Government. The Central Government is also bound to gtake necessar
y steps to ensure the BJEfs participation in international meetings and eventsh li
ke those of the ASEAN and the specialized agencies of the UN. The BJE is to be
entitled to participate in Philippine official missions and delegations for the
negotiation of border agreements or protocols for environmental protection and e
quitable sharing of incomes and revenues involving the bodies of water adjacent
to or between the islands forming part of the ancestral domain.[47]

With regard to the right of exploring for, producing, and obtaining al
l potential sources of energy, petroleum, fossil fuel, mineral oil and natural g
as, the jurisdiction and control thereon is to be vested in the BJE gas the party
having control within its territorial jurisdiction.h This right carries the pro
viso that, gin times of national emergency, when public interest so requires,h the
Central Government may, for a fixed period and under reasonable terms as may be
agreed upon by both Parties, assume or direct the operation of such resources.[
48]

The sharing between the Central Government and the BJE of total produc
tion pertaining to natural resources is to be 75:25 in favor of the BJE.[49]
The MOA-AD provides that legitimate grievances of the Bangsamoro peopl
e arising from any unjust dispossession of their territorial and proprietary rig
hts, customary land tenures, or their marginalization shall be acknowledged. Wh
enever restoration is no longer possible, reparation is to be in such form as mu
tually determined by the Parties.[50]

The BJE may modify or cancel the forest concessions, timber licenses,
contracts or agreements, mining concessions, Mineral Production and Sharing Agre
ements (MPSA), Industrial Forest Management Agreements (IFMA), and other land te
nure instruments granted by the Philippine Government, including those issued by
the present ARMM.[51]

D. GOVERNANCE

The MOA-AD binds the Parties to invite a multinational third-party to
observe and monitor the implementation of the Comprehensive Compact. This compa
ct is to embody the gdetails for the effective enforcementh and gthe mechanisms and
modalities for the actual implementationh of the MOA-AD. The MOA-AD explicitly
provides that the participation of the third party shall not in any way affect t
he status of the relationship between the Central Government and the BJE.[52]

The gassociativeh relationship
between the Central Government
and the BJE

The MOA-AD describes the relationship of the Central Government and the BJE as ga
ssociative,h characterized by shared authority and responsibility. And it states
that the structure of governance is to be based on executive, legislative, judi
cial, and administrative institutions with defined powers and functions in the C
omprehensive Compact.

The MOA-AD provides that its provisions requiring gamendments to the ex
isting legal frameworkh shall take effect upon signing of the Comprehensive Compa
ct and upon effecting the aforesaid amendments, with due regard to the non-derog
ation of prior agreements and within the stipulated timeframe to be contained in
the Comprehensive Compact. As will be discussed later, much of the present con
troversy hangs on the legality of this provision.

The BJE is granted the power to build, develop and maintain its own institutions
inclusive of civil service, electoral, financial and banking, education, legisl
ation, legal, economic, police and internal security force, judicial system and
correctional institutions, the details of which shall be discussed in the negoti
ation of the comprehensive compact.

As stated early on, the MOA-AD was set to be signed on August 5, 2008
by Rodolfo Garcia and Mohagher Iqbal, Chairpersons of the Peace Negotiating Pane
ls of the GRP and the MILF, respectively. Notably, the penultimate paragraph of
the MOA-AD identifies the signatories as gthe representatives of the Parties,h me
aning the GRP and MILF themselves, and not merely of the negotiating panels.[53]
In addition, the signature page of the MOA-AD states that it is gWITNESSED BYh D
atuk Othman Bin Abd Razak, Special Adviser to the Prime Minister of Malaysia, gEN
DORSED BYh Ambassador Sayed Elmasry, Adviser to Organization of the Islamic Confe
rence (OIC) Secretary General and Special Envoy for Peace Process in Southern Ph
ilippines, and SIGNED gIN THE PRESENCE OFh Dr. Albert G. Romulo, Secretary of Fore
ign Affairs of RP and Datof Seri Utama Dr. Rais Bin Yatim, Minister of Foreign Af
fairs, Malaysia, all of whom were scheduled to sign the Agreement last August 5,
2008.

Annexed to the MOA-AD are two documents containing the respective lists cum maps
of the provinces, municipalities, and barangays under Categories A and B earlie
r mentioned in the discussion on the strand on TERRITORY.

IV. PROCEDURAL ISSUES


A. RIPENESS


The power of judicial review is limited to actual cases or controversies.[54] C
ourts decline to issue advisory opinions or to resolve hypothetical or feigned p
roblems, or mere academic questions.[55] The limitation of the power of judicia
l review to actual cases and controversies defines the role assigned to the judi
ciary in a tripartite allocation of power, to assure that the courts will not in
trude into areas committed to the other branches of government.[56]

An actual case or controversy involves a conflict of legal rights, an assertion
of opposite legal claims, susceptible of judicial resolution as distinguished fr
om a hypothetical or abstract difference or dispute. There must be a contrariet
y of legal rights that can be interpreted and enforced on the basis of existing
law and jurisprudence.[57] The Court can decide the constitutionality of an act
or treaty only when a proper case between opposing parties is submitted for jud
icial determination.[58]

Related to the requirement of an actual case or controversy is the requirement o
f ripeness. A question is ripe for adjudication when the act being challenged ha
s had a direct adverse effect on the individual challenging it.[59] For a case
to be considered ripe for adjudication, it is a prerequisite that something had
then been accomplished or performed by either branch before a court may come int
o the picture,[60] and the petitioner must allege the existence of an immediate
or threatened injury to itself as a result of the challenged action.[61] He must
show that he has sustained or is immediately in danger of sustaining some direc
t injury as a result of the act complained of.[62]

The Solicitor General argues that there is no justiciable controversy that is ri
pe for judicial review in the present petitions, reasoning that

The unsigned MOA-AD is simply a list of consensus points subject to further nego
tiations and legislative enactments as well as constitutional processes aimed at
attaining a final peaceful agreement. Simply put, the MOA-AD remains to be a p
roposal that does not automatically create legally demandable rights and obligat
ions until the list of operative acts required have been duly complied with. x x
x

x x x x

In the cases at bar, it is respectfully submitted that this Honorable Court has
no authority to pass upon issues based on hypothetical or feigned constitutional
problems or interests with no concrete bases. Considering the preliminary char
acter of the MOA-AD, there are no concrete acts that could possibly violate peti
tionersf and intervenorsf rights since the acts complained of are mere contemplate
d steps toward the formulation of a final peace agreement. Plainly, petitioners
and intervenorsf perceived injury, if at all, is merely imaginary and illusory a
part from being unfounded and based on mere conjectures. (Underscoring supplied
)


The Solicitor General cites[63] the following provisions of the MOA-AD:

TERRITORY

x x x x

2. Toward this end, the Parties enter into the following stipulations:
x x x x

d. Without derogating from the requirements of prior agreements, the Government
stipulates to conduct and deliver, using all possible legal measures, within tw
elve (12) months following the signing of the MOA-AD, a plebiscite covering the
areas as enumerated in the list and depicted in the map as Category A attached h
erein (the gAnnexh). The Annex constitutes an integral part of this framework agr
eement. Toward this end, the Parties shall endeavor to complete the negotiation
s and resolve all outstanding issues on the Comprehensive Compact within fifteen
(15) months from the signing of the MOA-AD.

x x x x

GOVERNANCE

x x x x

7. The Parties agree that mechanisms and modalities for the actual implementat
ion of this MOA-AD shall be spelt out in the Comprehensive Compact to mutually t
ake such steps to enable it to occur effectively.

Any provisions of the MOA-AD requiring amendments to the existing legal fr
amework shall come into force upon the signing of a Comprehensive Compact and up
on effecting the necessary changes to the legal framework with due regard to non
-derogation of prior agreements and within the stipulated timeframe to be contai
ned in the Comprehensive Compact.[64] (Underscoring supplied)


The Solicitor Generalfs arguments fail to persuade.

Concrete acts under the MOA-AD are not necessary to render the present controver
sy ripe. In Pimentel, Jr. v. Aguirre,[65] this Court held:

x x x [B]y the mere enactment of the questioned law or the approval of the chall
enged action, the dispute is said to have ripened into a judicial controversy ev
en without any other overt act. Indeed, even a singular violation of the Const
itution and/or the law is enough to awaken judicial duty.

x x x x

By the same token, when an act of the President, who in our constitutional schem
e is a coequal of Congress, is seriously alleged to have infringed the Constitut
ion and the laws x x x settling the dispute becomes the duty and the responsibil
ity of the courts.[66]


In Santa Fe Independent School District v. Doe,[67] the United States Supreme Co
urt held that the challenge to the constitutionality of the schoolfs policy allow
ing student-led prayers and speeches before games was ripe for adjudication, eve
n if no public prayer had yet been led under the policy, because the policy was
being challenged as unconstitutional on its face.[68]

That the law or act in question is not yet effective does not negate ripeness.
For example, in New York v. United States,[69] decided in 1992, the United State
s Supreme Court held that the action by the State of New York challenging the pr
ovisions of the Low-Level Radioactive Waste Policy Act was ripe for adjudication
even if the questioned provision was not to take effect until January 1, 1996,
because the parties agreed that New York had to take immediate action to avoid t
he provision's consequences.[70]

The present petitions pray for Certiorari,[71] Prohibition, and Mandamus. Certi
orari and Prohibition are remedies granted by law when any tribunal, board or of
ficer has acted, in the case of certiorari, or is proceeding, in the case of pro
hibition, without or in excess of its jurisdiction or with grave abuse of discre
tion amounting to lack or excess of jurisdiction.[72] Mandamus is a remedy gran
ted by law when any tribunal, corporation, board, officer or person unlawfully n
eglects the performance of an act which the law specifically enjoins as a duty r
esulting from an office, trust, or station, or unlawfully excludes another from
the use or enjoyment of a right or office to which such other is entitled.[73] C
ertiorari, Mandamus and Prohibition are appropriate remedies to raise constituti
onal issues and to review and/or prohibit/nullify, when proper, acts of legislat
ive and executive officials.[74]

The authority of the GRP Negotiating Panel is defined by Executive Order No. 3 (
E.O. No. 3), issued on February 28, 2001.[75] The said executive order requires
that g[t]he government's policy framework for peace, including the systematic ap
proach and the administrative structure for carrying out the comprehensive peace
process x x x be governed by this Executive Order.h[76]

The present petitions allege that respondents GRP Panel and PAPP Esperon drafted
the terms of the MOA-AD without consulting the local government units or commun
ities affected, nor informing them of the proceedings. As will be discussed in
greater detail later, such omission, by itself, constitutes a departure by respo
ndents from their mandate under E.O. No. 3.

Furthermore, the petitions allege that the provisions of the MOA-AD violate the
Constitution. The MOA-AD provides that gany provisions of the MOA-AD requiring a
mendments to the existing legal framework shall come into force upon the signing
of a Comprehensive Compact and upon effecting the necessary changes to the lega
l framework,h implying an amendment of the Constitution to accommodate the MOA-AD
. This stipulation, in effect, guaranteed to the MILF the amendment of the Cons
titution. Such act constitutes another violation of its authority. Again, these
points will be discussed in more detail later.
As the petitions allege acts or omissions on the part of respondent that exceed
their authority, by violating their duties under E.O. No. 3 and the provisions
of the Constitution and statutes, the petitions make a prima facie case for Cert
iorari, Prohibition, and Mandamus, and an actual case or controversy ripe for ad
judication exists. When an act of a branch of government is seriously alleged to
have infringed the Constitution, it becomes not only the right but in fact the
duty of the judiciary to settle the dispute.[77]

B. LOCUS STANDI


For a party to have locus standi, one must allege gsuch a personal stak
e in the outcome of the controversy as to assure that concrete adverseness which
sharpens the presentation of issues upon which the court so largely depends for
illumination of difficult constitutional questions.h[78]

Because constitutional cases are often public actions in which the rel
ief sought is likely to affect other persons, a preliminary question frequently
arises as to this interest in the constitutional question raised.[79]

When suing as a citizen, the person complaining must allege that he ha
s been or is about to be denied some right or privilege to which he is lawfully
entitled or that he is about to be subjected to some burdens or penalties by rea
son of the statute or act complained of.[80] When the issue concerns a public ri
ght, it is sufficient that the petitioner is a citizen and has an interest in th
e execution of the laws.[81]

For a taxpayer, one is allowed to sue where there is an assertion that
public funds are illegally disbursed or deflected to an illegal purpose, or tha
t there is a wastage of public funds through the enforcement of an invalid or un
constitutional law.[82] The Court retains discretion whether or not to allow a t
axpayerfs suit.[83]

In the case of a legislator or member of Congress, an act of the Execu
tive that injures the institution of Congress causes a derivative but nonetheles
s substantial injury that can be questioned by legislators. A member of the Hou
se of Representatives has standing to maintain inviolate the prerogatives, power
s and privileges vested by the Constitution in his office.[84]

An organization may be granted standing to assert the rights of its me
mbers,[85] but the mere invocation by the Integrated Bar of the Philippines or a
ny member of the legal profession of the duty to preserve the rule of law does n
ot suffice to clothe it with standing.[86]

As regards a local government unit (LGU), it can seek relief in order
to protect or vindicate an interest of its own, and of the other LGUs.[87]

Intervenors, meanwhile, may be given legal standing upon showing of fa
cts that satisfy the requirements of the law authorizing intervention,[88] such
as a legal interest in the matter in litigation, or in the success of either of
the parties.

In any case, the Court has discretion to relax the procedural technica
lity on locus standi, given the liberal attitude it has exercised, highlighted i
n the case of David v. Macapagal-Arroyo,[89] where technicalities of procedure w
ere brushed aside, the constitutional issues raised being of paramount public in
terest or of transcendental importance deserving the attention of the Court in v
iew of their seriousness, novelty and weight as precedents.[90] The Courtfs forb
earing stance on locus standi on issues involving constitutional issues has for
its purpose the protection of fundamental rights.

In not a few cases, the Court, in keeping with its duty under the Cons
titution to determine whether the other branches of government have kept themsel
ves within the limits of the Constitution and the laws and have not abused the d
iscretion given them, has brushed aside technical rules of procedure.[91]

In the petitions at bar, petitioners Province of North Cotabato (G.R.
No. 183591) Province of Zamboanga del Norte (G.R. No. 183951), City of Iligan (G
.R. No. 183893) and City of Zamboanga (G.R. No. 183752) and petitioners-in-inter
vention Province of Sultan Kudarat, City of Isabela and Municipality of Linamon
have locus standi in view of the direct and substantial injury that they, as LGU
s, would suffer as their territories, whether in whole or in part, are to be inc
luded in the intended domain of the BJE. These petitioners allege that they did
not vote for their inclusion in the ARMM which would be expanded to form the BJ
E territory. Petitionersf legal standing is thus beyond doubt.

In G.R. No. 183962, petitioners Ernesto Maceda, Jejomar Binay and Aqui
lino Pimentel III would have no standing as citizens and taxpayers for their fai
lure to specify that they would be denied some right or privilege or there would
be wastage of public funds. The fact that they are a former Senator, an incumb
ent mayor of Makati City, and a resident of Cagayan de Oro, respectively, is of
no consequence. Considering their invocation of the transcendental importance o
f the issues at hand, however, the Court grants them standing.

Intervenors Franklin Drilon and Adel Tamano, in alleging their standin
g as taxpayers, assert that government funds would be expended for the conduct o
f an illegal and unconstitutional plebiscite to delineate the BJE territory. On
that score alone, they can be given legal standing. Their allegation that the
issues involved in these petitions are of gundeniable transcendental importanceh c
lothes them with added basis for their personality to intervene in these petitio
ns.

With regard to Senator Manuel Roxas, his standing is premised on his b
eing a member of the Senate and a citizen to enforce compliance by respondents o
f the publicfs constitutional right to be informed of the MOA-AD, as well as on a
genuine legal interest in the matter in litigation, or in the success or failur
e of either of the parties. He thus possesses the requisite standing as an inte
rvenor.

With respect to Intervenors Ruy Elias Lopez, as a former congressman o
f the 3rd district of Davao City, a taxpayer and a member of the Bagobo tribe; C
arlo B. Gomez, et al., as members of the IBP Palawan chapter, citizens and taxpa
yers; Marino Ridao, as taxpayer, resident and member of the Sangguniang Panlungs
od of Cotabato City; and Kisin Buxani, as taxpayer, they failed to allege any pr
oper legal interest in the present petitions. Just the same, the Court exercise
s its discretion to relax the procedural technicality on locus standi given the
paramount public interest in the issues at hand.

Intervening respondents Muslim Multi-Sectoral Movement for Peace and D
evelopment, an advocacy group for justice and the attainment of peace and prospe
rity in Muslim Mindanao; and Muslim Legal Assistance Foundation Inc., a non-gove
rnment organization of Muslim lawyers, allege that they stand to be benefited or
prejudiced, as the case may be, in the resolution of the petitions concerning t
he MOA-AD, and prays for the denial of the petitions on the grounds therein stat
ed. Such legal interest suffices to clothe them with standing.

B. MOOTNESS

Respondents insist that the present petitions have been rendered moot
with the satisfaction of all the reliefs prayed for by petitioners and the subse
quent pronouncement of the Executive Secretary that g[n]o matter what the Supreme
Court ultimately decides[,] the government will not sign the MOA.h[92]

In lending credence to this policy decision, the Solicitor General poi
nts out that the President had already disbanded the GRP Peace Panel.[93]

In David v. Macapagal-Arroyo,[94] this Court held that the gmoot and ac
ademich principle not being a magical formula that automatically dissuades courts
in resolving a case, it will decide cases, otherwise moot and academic, if it f
inds that (a) there is a grave violation of the Constitution;[95] (b) the situat
ion is of exceptional character and paramount public interest is involved;[96] (
c) the constitutional issue raised requires formulation of controlling principle
s to guide the bench, the bar, and the public;[97] and (d) the case is capable o
f repetition yet evading review.[98]

Another exclusionary circumstance that may be considered is where ther
e is a voluntary cessation of the activity complained of by the defendant or doe
r. Thus, once a suit is filed and the doer voluntarily ceases the challenged co
nduct, it does not automatically deprive the tribunal of power to hear and deter
mine the case and does not render the case moot especially when the plaintiff se
eks damages or prays for injunctive relief against the possible recurrence of th
e violation.[99]

The present petitions fall squarely into these exceptions to thus thru
st them into the domain of judicial review. The grounds cited above in David a
re just as applicable in the present cases as they were, not only in David, but
also in Province of Batangas v. Romulo[100] and Manalo v. Calderon[101] where th
e Court similarly decided them on the merits, supervening events that would ordi
narily have rendered the same moot notwithstanding.

Petitions not mooted


Contrary then to the asseverations of respondents, the non-signing of
the MOA-AD and the eventual dissolution of the GRP Peace Panel did not moot the
present petitions. It bears emphasis that the signing of the MOA-AD did not pus
h through due to the Courtfs issuance of a Temporary Restraining Order.

Contrary too to respondentsf position, the MOA-AD cannot be considered
a mere glist of consensus points,h especially given its nomenclature, the need to
have it signed or initialed by all the parties concerned on August 5, 2008, and
the far-reaching Constitutional implications of these gconsensus points,h foremost
of which is the creation of the BJE.

In fact, as what will, in the main, be discussed, there is a commitmen
t on the part of respondents to amend and effect necessary changes to the existi
ng legal framework for certain provisions of the MOA-AD to take effect. Consequ
ently, the present petitions are not confined to the terms and provisions of the
MOA-AD, but to other on-going and future negotiations and agreements necessary
for its realization. The petitions have not, therefore, been rendered moot and
academic simply by the public disclosure of the MOA-AD,[102] the manifestation t
hat it will not be signed as well as the disbanding of the GRP Panel not withsta
nding.

Petitions are imbued with paramount public interest


There is no gainsaying that the petitions are imbued with paramount pu
blic interest, involving a significant part of the countryfs territory and the wi
de-ranging political modifications of affected LGUs. The assertion that the MOA
-AD is subject to further legal enactments including possible Constitutional ame
ndments more than ever provides impetus for the Court to formulate controlling p
rinciples to guide the bench, the bar, the public and, in this case, the governm
ent and its negotiating entity.

Respondents cite Suplico v. NEDA, et al.[103] where the Court did not g
pontificat[e] on issues which no longer legitimately constitute an actual case o
r controversy [as this] will do more harm than good to the nation as a whole.h

The present petitions must be differentiated from Suplico. Primarily,
in Suplico, what was assailed and eventually cancelled was a stand-alone govern
ment procurement contract for a national broadband network involving a one-time
contractual relation between two parties?the government and a private foreign co
rporation. As the issues therein involved specific government procurement polic
ies and standard principles on contracts, the majority opinion in Suplico found
nothing exceptional therein, the factual circumstances being peculiar only to th
e transactions and parties involved in the controversy.
The MOA-AD is part of a series of agreements

In the present controversy, the MOA-AD is a significant part of a seri
es of agreements necessary to carry out the Tripoli Agreement 2001. The MOA-AD
which dwells on the Ancestral Domain Aspect of said Tripoli Agreement is the thi
rd such component to be undertaken following the implementation of the Security
Aspect in August 2001 and the Humanitarian, Rehabilitation and Development Aspec
t in May 2002.

Accordingly, even if the Executive Secretary, in his Memorandum of Aug
ust 28, 2008 to the Solicitor General, has stated that gno matter what the Suprem
e Court ultimately decides[,] the government will not sign the MOA[-AD],h mootnes
s will not set in in light of the terms of the Tripoli Agreement 2001.

Need to formulate principles-guidelines

Surely, the present MOA-AD can be renegotiated or another one will be drawn up t
o carry out the Ancestral Domain Aspect of the Tripoli Agreement 2001, in anothe
r or in any form, which could contain similar or significantly drastic provision
s. While the Court notes the word of the Executive Secretary that the governmen
t gis committed to securing an agreement that is both constitutional and equitabl
e because that is the only way that long-lasting peace can be assured,h it is min
ded to render a decision on the merits in the present petitions to formulate con
trolling principles to guide the bench, the bar, the public and, most especially
, the government in negotiating with the MILF regarding Ancestral Domain.

Respondents invite the Courtfs attention to the separate opinion of the
n Chief Justice Artemio Panganiban in Sanlakas v. Reyes[104] in which he stated
that the doctrine of gcapable of repetition yet evading reviewh can override mootn
ess, gprovided the party raising it in a proper case has been and/or continue to
be prejudiced or damaged as a direct result of their issuance.h They contend tha
t the Court must have jurisdiction over the subject matter for the doctrine to b
e invoked.

The present petitions all contain prayers for Prohibition over which this Court
exercises original jurisdiction. While G.R. No. 183893 (City of Iligan v. GRP)
is a petition for Injunction and Declaratory Relief, the Court will treat it as
one for Prohibition as it has far reaching implications and raises questions tha
t need to be resolved.[105] At all events, the Court has jurisdiction over most
if not the rest of the petitions.

Indeed, the present petitions afford a proper venue for the Court to a
gain apply the doctrine immediately referred to as what it had done in a number
of landmark cases.[106] There is a reasonable expectation that petitioners, par
ticularly the Provinces of North Cotabato, Zamboanga del Norte and Sultan Kudara
t, the Cities of Zamboanga, Iligan and Isabela, and the Municipality of Linamon,
will again be subjected to the same problem in the future as respondentsf action
s are capable of repetition, in another or any form.

It is with respect to the prayers for Mandamus that the petitions have
become moot, respondents having, by Compliance of August 7, 2008, provided this
Court and petitioners with official copies of the final draft of the MOA-AD and
its annexes. Too, intervenors have been furnished, or have procured for themse
lves, copies of the MOA-AD.
V. SUBSTANTIVE ISSUES


As culled from the Petitions and Petitions-in-Intervention, there are
basically two SUBSTANTIVE issues to be resolved, one relating to the manner in w
hich the MOA-AD was negotiated and finalized, the other relating to its provisio
ns, viz:

1. Did respondents violate constitutional and statutory provisions on
public consultation and the right to information when they negotiated and later
initialed the MOA-AD?

2. Do the contents of the MOA-AD violate the Constitution and the laws
?

ON THE FIRST SUBSTANTIVE ISSUE

Petitioners invoke their constitutional right to information on matters of publi
c concern, as provided in Section 7, Article III on the Bill of Rights:

Sec. 7. The right of the people to information on matters of public concern sha
ll be recognized. Access to official records, and to documents, and papers pert
aining to official acts, transactions, or decisions, as well as to government re
search data used as basis for policy development, shall be afforded the citizen,
subject to such limitations as may be provided by law.[107]


As early as 1948, in Subido v. Ozaeta,[108] the Court has recognized t
he statutory right to examine and inspect public records, a right which was even
tually accorded constitutional status.

The right of access to public documents, as enshrined in both the 1973
Constitution and the 1987 Constitution, has been recognized as a self-executory
constitutional right.[109]

In the 1976 case of Baldoza v. Hon. Judge Dimaano,[110] the Court rule
d that access to public records is predicated on the right of the people to acqu
ire information on matters of public concern since, undoubtedly, in a democracy,
the pubic has a legitimate interest in matters of social and political signific
ance.

x x x The incorporation of this right in the Constitution is a recog
nition of the fundamental role of free exchange of information in a democracy.
There can be no realistic perception by the public of the nationfs problems, nor
a meaningful democratic decision-making if they are denied access to information
of general interest. Information is needed to enable the members of society to
cope with the exigencies of the times. As has been aptly observed: gMaintaining
the flow of such information depends on protection for both its acquisition and
its dissemination since, if either process is interrupted, the flow inevitably
ceases.h x x x[111]


In the same way that free discussion enables members of society to cop
e with the exigencies of their time, access to information of general interest a
ids the people in democratic decision-making by giving them a better perspective
of the vital issues confronting the nation[112] so that they may be able to cri
ticize and participate in the affairs of the government in a responsible, reason
able and effective manner. It is by ensuring an unfettered and uninhibited exch
ange of ideas among a well-informed public that a government remains responsive
to the changes desired by the people.[113]

The MOA-AD is a matter of public concern


That the subject of the information sought in the present cases is a matter of p
ublic concern[114] faces no serious challenge. In fact, respondents admit that
the MOA-AD is indeed of public concern.[115] In previous cases, the Court found
that the regularity of real estate transactions entered in the Register of Deed
s,[116] the need for adequate notice to the public of the various laws,[117] the
civil service eligibility of a public employee,[118] the proper management of G
SIS funds allegedly used to grant loans to public officials,[119] the recovery o
f the Marcosesf alleged ill-gotten wealth,[120] and the identity of party-list no
minees,[121] among others, are matters of public concern. Undoubtedly, the MOA-
AD subject of the present cases is of public concern, involving as it does the s
overeignty and territorial integrity of the State, which directly affects the li
ves of the public at large.

Matters of public concern covered by the right to information include
steps and negotiations leading to the consummation of the contract. In not dist
inguishing as to the executory nature or commercial character of agreements, the
Court has categorically ruled:

x x x [T]he right to information gcontemplates inclusion of negotiati
ons leading to the consummation of the transaction.h Certainly, a consummated co
ntract is not a requirement for the exercise of the right to information. Other
wise, the people can never exercise the right if no contract is consummated, and
if one is consummated, it may be too late for the public to expose its defects.


Requiring a consummated contract will keep the public in the dark un
til the contract, which may be grossly disadvantageous to the government or even
illegal, becomes fait accompli. This negates the State policy of full transpar
ency on matters of public concern, a situation which the framers of the Constitu
tion could not have intended. Such a requirement will prevent the citizenry fro
m participating in the public discussion of any proposed contract, effectively t
runcating a basic right enshrined in the Bill of Rights. We can allow neither a
n emasculation of a constitutional right, nor a retreat by the State of its avow
ed gpolicy of full disclosure of all its transactions involving public interest.h[
122] (Emphasis and italics in the original)


Intended as a gsplendid symmetryh[123] to the right to information under
the Bill of Rights is the policy of public disclosure under Section 28, Article
II of the Constitution reading:

Sec. 28. Subject to reasonable conditions prescribed by law, the St
ate adopts and implements a policy of full public disclosure of all its transact
ions involving public interest.[124]

The policy of full public disclosure enunciated in above-quoted Sectio
n 28 complements the right of access to information on matters of public concern
found in the Bill of Rights. The right to information guarantees the right of
the people to demand information, while Section 28 recognizes the duty of offic
ialdom to give information even if nobody demands.[125]

The policy of public disclosure establishes a concrete ethical princip
le for the conduct of public affairs in a genuinely open democracy, with the peo
plefs right to know as the centerpiece. It is a mandate of the State to be accou
ntable by following such policy.[126] These provisions are vital to the exercis
e of the freedom of expression and essential to hold public officials at all tim
es accountable to the people.[127]

Whether Section 28 is self-executory, the records of the deliberations
of the Constitutional Commission so disclose:

MR. SUAREZ. And since this is not self-executory, this policy will not be enunc
iated or will not be in force and effect until after Congress shall have provide
d it.

MR. OPLE. I expect it to influence the climate of public ethics imm
ediately but, of course, the implementing law will have to be enacted by Congres
s, Mr. Presiding Officer.[128]


The following discourse, after Commissioner Hilario Davide, Jr., sought clarific
ation on the issue, is enlightening.

MR. DAVIDE. I would like to get some clarifications on this. Mr. Presiding Off
icer, did I get the Gentleman correctly as having said that this is not a self-e
xecuting provision? It would require a legislation by Congress to implement?

MR. OPLE. Yes. Originally, it was going to be self-executing, but I accepted a
n amendment from Commissioner Regalado, so that the safeguards on national inter
est are modified by the clause gas may be provided by lawh

MR. DAVIDE. But as worded, does it not mean that this will immediately take eff
ect and Congress may provide for reasonable safeguards on the sole ground nation
al interest?

MR. OPLE. Yes. I think so, Mr. Presiding Officer, I said earlier th
at it should immediately influence the climate of the conduct of public affairs
but, of course, Congress here may no longer pass a law revoking it, or if this i
s approved, revoking this principle, which is inconsistent with this policy.[129
] (Emphasis supplied)


Indubitably, the effectivity of the policy of public disclosure need n
ot await the passing of a statute. As Congress cannot revoke this principle, it
is merely directed to provide for greasonable safeguards.h The complete and effe
ctive exercise of the right to information necessitates that its complementary p
rovision on public disclosure derive the same self-executory nature. Since both
provisions go hand-in-hand, it is absurd to say that the broader[130] right to
information on matters of public concern is already enforceable while the correl
ative duty of the State to disclose its transactions involving public interest i
s not enforceable until there is an enabling law. Respondents cannot thus point
to the absence of an implementing legislation as an excuse in not effecting suc
h policy.

An essential element of these freedoms is to keep open a continuing di
alogue or process of communication between the government and the people. It is
in the interest of the State that the channels for free political discussion be
maintained to the end that the government may perceive and be responsive to the
peoplefs will.[131] Envisioned to be corollary to the twin rights to informatio
n and disclosure is the design for feedback mechanisms.

MS. ROSARIO BRAID. Yes. And lastly, Mr. Presiding Officer, will the people be
able to participate? Will the government provide feedback mechanisms so that th
e people can participate and can react where the existing media facilities are n
ot able to provide full feedback mechanisms to the government? I suppose this w
ill be part of the government implementing operational mechanisms.

MR. OPLE. Yes. I think through their elected representatives and that is how t
hese courses take place. There is a message and a feedback, both ways.

x x x x

MS. ROSARIO BRAID. Mr. Presiding Officer, may I just make one last sentence?

I think when we talk about the feedback network, we are not talking about public
officials but also network of private business o[r] community-based organizatio
ns that will be reacting. As a matter of fact, we will put more credence or cre
dibility on the private network of volunteers and voluntary community-based orga
nizations. So I do not think we are afraid that there will be another OMA in th
e making.[132] (Emphasis supplied)

The imperative of a public consultation, as a species of the right to
information, is evident in the gmarching ordersh to respondents. The mechanics fo
r the duty to disclose information and to conduct public consultation regarding
the peace agenda and process is manifestly provided by E.O. No. 3.[133] The pre
ambulatory clause of E.O. No. 3 declares that there is a need to further enhance
the contribution of civil society to the comprehensive peace process by institu
tionalizing the peoplefs participation.

One of the three underlying principles of the comprehensive peace process is tha
t it gshould be community-based, reflecting the sentiments, values and principles
important to all Filipinosh and gshall be defined not by the government alone, no
r by the different contending groups only, but by all Filipinos as one community
.h[134] Included as a component of the comprehensive peace process is consensus-
building and empowerment for peace, which includes gcontinuing consultations on b
oth national and local levels to build consensus for a peace agenda and process,
and the mobilization and facilitation of peoplefs participation in the peace pro
cess.h[135]

Clearly, E.O. No. 3 contemplates not just the conduct of a plebiscite to effectu
ate gcontinuingh consultations, contrary to respondentsf position that plebiscite i
s gmore than sufficient consultation.h[136]

Further, E.O. No. 3 enumerates the functions and responsibilities of t
he PAPP, one of which is to g[c]onduct regular dialogues with the National Peace
Forum (NPF) and other peace partners to seek relevant information, comments, rec
ommendations as well as to render appropriate and timely reports on the progress
of the comprehensive peace process.h[137] E.O. No. 3 mandates the establishment
of the NPF to be gthe principal forum for the PAPP to consult with and seek advi
[c]e from the peace advocates, peace partners and concerned sectors of society o
n both national and local levels, on the implementation of the comprehensive pea
ce process, as well as for government[-]civil society dialogue and consensus-bui
lding on peace agenda and initiatives.h[138]

In fine, E.O. No. 3 establishes petitionersf right to be consulted on t
he peace agenda, as a corollary to the constitutional right to information and d
isclosure.

PAPP Esperon committed grave abuse of discretion


The PAPP committed grave abuse of discretion when he failed to carry o
ut the pertinent consultation. The furtive process by which the MOA-AD was desi
gned and crafted runs contrary to and in excess of the legal authority, and amou
nts to a whimsical, capricious, oppressive, arbitrary and despotic exercise ther
eof.

The Court may not, of course, require the PAPP to conduct the consulta
tion in a particular way or manner. It may, however, require him to comply with
the law and discharge the functions within the authority granted by the Preside
nt.[139]

Petitioners are not claiming a seat at the negotiating table, contrary
to respondentsf retort in justifying the denial of petitionersf right to be consu
lted. Respondentsf stance manifests the manner by which they treat the salient p
rovisions of E.O. No. 3 on peoplefs participation. Such disregard of the express
mandate of the President is not much different from superficial conduct toward
token provisos that border on classic lip service.[140] It illustrates a gross
evasion of positive duty and a virtual refusal to perform the duty enjoined.

As for respondentsf invocation of the doctrine of executive privilege,
it is not tenable under the premises. The argument defies sound reason when con
trasted with E.O. No. 3fs explicit provisions on continuing consultation and dial
ogue on both national and local levels. The executive order even recognizes the
exercise of the publicfs right even before the GRP makes its official recommenda
tions or before the government proffers its definite propositions.[141] It bear
emphasis that E.O. No. 3 seeks to elicit relevant advice, information, comments
and recommendations from the people through dialogue.

AT ALL EVENTS, respondents effectively waived the defense of executive
privilege in view of their unqualified disclosure of the official copies of the
final draft of the MOA-AD. By unconditionally complying with the Courtfs August
4, 2008 Resolution, without a prayer for the documentfs disclosure in camera, or
without a manifestation that it was complying therewith ex abundante ad cautela
m.

Petitionersf assertion that the Local Government Code (LGC) of 1991 dec
lares it a State policy to grequire all national agencies and offices to conduct
periodic consultations with appropriate local government units, non-governmental
and people's organizations, and other concerned sectors of the community before
any project or program is implemented in their respective jurisdictionsh[142] is
well-taken. The LGC chapter on intergovernmental relations puts flesh into thi
s avowed policy:

Prior Consultations Required. ? No project or program shall be im
plemented by government authorities unless the consultations mentioned in Sectio
ns 2 (c) and 26 hereof are complied with, and prior approval of the sanggunian c
oncerned is obtained: Provided, That occupants in areas where such projects are
to be implemented shall not be evicted unless appropriate relocation sites have
been provided, in accordance with the provisions of the Constitution.[143] (Ital
ics and underscoring supplied)


In Lina, Jr. v. Hon. Pano,[144] the Court held that the above-stated p
olicy and above-quoted provision of the LGU apply only to national programs or p
rojects which are to be implemented in a particular local community. Among the
programs and projects covered are those that are critical to the environment and
human ecology including those that may call for the eviction of a particular gr
oup of people residing in the locality where these will be implemented.[145] Th
e MOA-AD is one peculiar program that unequivocally and unilaterally vests owner
ship of a vast territory to the Bangsamoro people,[146] which could pervasively
and drastically result to the diaspora or displacement of a great number of inha
bitants from their total environment.

With respect to the indigenous cultural communities/indigenous peoples
(ICCs/IPs), whose interests are represented herein by petitioner Lopez and are
adversely affected by the MOA-AD, the ICCs/IPs have, under the IPRA, the right t
o participate fully at all levels of decision-making in matters which may affect
their rights, lives and destinies.[147] The MOA-AD, an instrument recognizing
ancestral domain, failed to justify its non-compliance with the clear-cut mechan
isms ordained in said Act,[148] which entails, among other things, the observanc
e of the free and prior informed consent of the ICCs/IPs.
Notably, the IPRA does not grant the Executive Department or any gover
nment agency the power to delineate and recognize an ancestral domain claim by m
ere agreement or compromise. The recognition of the ancestral domain is the rai
son dfetre of the MOA-AD, without which all other stipulations or gconsensus point
sh necessarily must fail. In proceeding to make a sweeping declaration on ancest
ral domain, without complying with the IPRA, which is cited as one of the TOR of
the MOA-AD, respondents clearly transcended the boundaries of their authority.
As it seems, even the heart of the MOA-AD is still subject to necessary changes
to the legal framework. While paragraph 7 on Governance suspends the effectivi
ty of all provisions requiring changes to the legal framework, such clause is it
self invalid, as will be discussed in the following section.

Indeed, ours is an open society, with all the acts of the government s
ubject to public scrutiny and available always to public cognizance. This has t
o be so if the country is to remain democratic, with sovereignty residing in the
people and all government authority emanating from them.[149]


ON THE SECOND SUBSTANTIVE ISSUE


With regard to the provisions of the MOA-AD, there can be no question
that they cannot all be accommodated under the present Constitution and laws. R
espondents have admitted as much in the oral arguments before this Court, and th
e MOA-AD itself recognizes the need to amend the existing legal framework to ren
der effective at least some of its provisions. Respondents, nonetheless, counte
r that the MOA-AD is free of any legal infirmity because any provisions therein
which are inconsistent with the present legal framework will not be effective un
til the necessary changes to that framework are made. The validity of this argu
ment will be considered later. For now, the Court shall pass upon how

The MOA-AD is inconsistent with the Constitution and laws as presently worded.


In general, the objections against the MOA-AD center on the extent of
the powers conceded therein to the BJE. Petitioners assert that the powers gran
ted to the BJE exceed those granted to any local government under present laws,
and even go beyond those of the present ARMM. Before assessing some of the spec
ific powers that would have been vested in the BJE, however, it would be useful
to turn first to a general idea that serves as a unifying link to the different
provisions of the MOA-AD, namely, the international law concept of association.
Significantly, the MOA-AD explicitly alludes to this concept, indicating that t
he Parties actually framed its provisions with it in mind.

Association is referred to in paragraph 3 on TERRITORY, paragraph 11 o
n RESOURCES, and paragraph 4 on GOVERNANCE. It is in the last mentioned provisi
on, however, that the MOA-AD most clearly uses it to describe the envisioned rel
ationship between the BJE and the Central Government.

4. The relationship between the Central Government and the Bangsamoro juridical
entity shall be associative characterized by shared authority and responsibility
with a structure of governance based on executive, legislative, judicial and ad
ministrative institutions with defined powers and functions in the comprehensive
compact. A period of transition shall be established in a comprehensive peace c
ompact specifying the relationship between the Central Government and the BJE. (
Emphasis and underscoring supplied)

The nature of the gassociativeh relationship may have been intended to be defined
more precisely in the still to be forged Comprehensive Compact. Nonetheless, gi
ven that there is a concept of gassociationh in international law, and the MOA-AD
? by its inclusion of international law instruments in its TOR? placed itself in
an international legal context, that concept of association may be brought to b
ear in understanding the use of the term gassociativeh in the MOA-AD.

Keitner and Reisman state that

[a]n association is formed when two states of unequal power voluntarily establis
h durable links. In the basic model, one state, the associate, delegates certain
responsibilities to the other, the principal, while maintaining its internation
al status as a state. Free associations represent a middle ground between integr
ation and independence. x x x[150] (Emphasis and underscoring supplied)


For purposes of illustration, the Republic of the Marshall Islands a
nd the Federated States of Micronesia (FSM), formerly part of the U.S.-administe
red Trust Territory of the Pacific Islands,[151] are associated states of the U.
S. pursuant to a Compact of Free Association. The currency in these countries i
s the U.S. dollar, indicating their very close ties with the U.S., yet they issu
e their own travel documents, which is a mark of their statehood. Their interna
tional legal status as states was confirmed by the UN Security Council and by th
eir admission to UN membership.

According to their compacts of free association, the Marshall Islands
and the FSM generally have the capacity to conduct foreign affairs in their own
name and right, such capacity extending to matters such as the law of the sea, m
arine resources, trade, banking, postal, civil aviation, and cultural relations.
The U.S. government, when conducting its foreign affairs, is obligated to cons
ult with the governments of the Marshall Islands or the FSM on matters which it
(U.S. government) regards as relating to or affecting either government.

In the event of attacks or threats against the Marshall Islands or the
FSM, the U.S. government has the authority and obligation to defend them as if
they were part of U.S. territory. The U.S. government, moreover, has the option
of establishing and using military areas and facilities within these associated
states and has the right to bar the military personnel of any third country fro
m having access to these territories for military purposes.

It bears noting that in U.S. constitutional and international practice
, free association is understood as an international association between soverei
gns. The Compact of Free Association is a treaty which is subordinate to the as
sociated nationfs national constitution, and each party may terminate the associa
tion consistent with the right of independence. It has been said that, with the
admission of the U.S.-associated states to the UN in 1990, the UN recognized th
at the American model of free association is actually based on an underlying sta
tus of independence.[152]

In international practice, the gassociated stateh arrangement has usuall
y been used as a transitional device of former colonies on their way to full ind
ependence. Examples of states that have passed through the status of associated
states as a transitional phase are Antigua, St. Kitts-Nevis-Anguilla, Dominica,
St. Lucia, St. Vincent and Grenada. All have since become independent states.[
153]

Back to the MOA-AD, it contains many provisions which are consistent w
ith the international legal concept of association, specifically the following:
the BJEfs capacity to enter into economic and trade relations with foreign countr
ies, the commitment of the Central Government to ensure the BJEfs participation i
n meetings and events in the ASEAN and the specialized UN agencies, and the cont
inuing responsibility of the Central Government over external defense. Moreover
, the BJEfs right to participate in Philippine official missions bearing on negot
iation of border agreements, environmental protection, and sharing of revenues p
ertaining to the bodies of water adjacent to or between the islands forming part
of the ancestral domain, resembles the right of the governments of FSM and the
Marshall Islands to be consulted by the U.S. government on any foreign affairs m
atter affecting them.

These provisions of the MOA indicate, among other things, that the Par
ties aimed to vest in the BJE the status of an associated state or, at any rate,
a status closely approximating it.

The concept of association is not recognized under the present Constitut
ion


No province, city, or municipality, not even the ARMM, is recognized under our l
aws as having an gassociativeh relationship with the national government. Indeed,
the concept implies powers that go beyond anything ever granted by the Constitu
tion to any local or regional government. It also implies the recognition of th
e associated entity as a state. The Constitution, however, does not contemplate
any state in this jurisdiction other than the Philippine State, much less does
it provide for a transitory status that aims to prepare any part of Philippine t
erritory for independence.

Even the mere concept animating many of the MOA-ADfs provisions, theref
ore, already requires for its validity the amendment of constitutional provision
s, specifically the following provisions of Article X:

SECTION 1. The territorial and political subdivisions of the Republic of the P
hilippines are the provinces, cities, municipalities, and barangays. There shall
be autonomous regions in Muslim Mindanao and the Cordilleras as hereinafter pro
vided.

SECTION 15. There shall be created autonomous regions in Muslim Mindanao and in
the Cordilleras consisting of provinces, cities, municipalities, and geographica
l areas sharing common and distinctive historical and cultural heritage, economi
c and social structures, and other relevant characteristics within the framework
of this Constitution and the national sovereignty as well as territorial integr
ity of the Republic of the Philippines.


The BJE is a far more powerful
entity than the autonomous region
recognized in the Constitution


It is not merely an expanded version of the ARMM, the status of its relationship
with the national government being fundamentally different from that of the ARM
M. Indeed, BJE is a state in all but name as it meets the criteria of a state l
aid down in the Montevideo Convention,[154] namely, a permanent population, a de
fined territory, a government, and a capacity to enter into relations with other
states.

Even assuming arguendo that the MOA-AD would not necessarily sever any portion o
f Philippine territory, the spirit animating it ? which has betrayed itself by i
ts use of the concept of association ? runs counter to the national sovereignty
and territorial integrity of the Republic.

The defining concept underlying the relationship between the national government
and the BJE being itself contrary to the present Constitution, it is not surpri
sing that many of the specific provisions of the MOA-AD on the formation and pow
ers of the BJE are in conflict with the Constitution and the laws.

Article X, Section 18 of the Constitution provides that g[t]he creation
of the autonomous region shall be effective when approved by a majori
ty of the votes cast by the constituent units in a plebiscite called for the pur
pose, provided that only provinces, cities, and geographic areas voting favorabl
y in such plebiscite shall be included in the autonomous region.h (Emphasis supp
lied)

As reflected above, the BJE is more of a state than an autonomous regi
on. But even assuming that it is covered by the term gautonomous regionh in the c
onstitutional provision just quoted, the MOA-AD would still be in conflict with
it. Under paragraph 2(c) on TERRITORY in relation to 2(d) and 2(e), the present
geographic area of the ARMM and, in addition, the municipalities of Lanao del N
orte which voted for inclusion in the ARMM during the 2001 plebiscite ? Baloi, M
unai, Nunungan, Pantar, Tagoloan and Tangkal ? are automatically part of the BJE
without need of another plebiscite, in contrast to the areas under Categories A
and B mentioned earlier in the overview. That the present components of the A
RMM and the above-mentioned municipalities voted for inclusion therein in 2001,
however, does not render another plebiscite unnecessary under the Constitution,
precisely because what these areas voted for then was their inclusion in the ARM
M, not the BJE.


The MOA-AD, moreover, would not
comply with Article X, Section 20 of
the Constitution

since that provision defines the powers of autonomous regions as follows:

SECTION 20. Within its territorial jurisdiction and subject to the provisions of
this Constitution and national laws, the organic act of autonomous regions shal
l provide for legislative powers over:

(1) Administrative organization;
(2) Creation of sources of revenues;
(3) Ancestral domain and natural resources;
(4) Personal, family, and property relations;
(5) Regional urban and rural planning development;
(6) Economic, social, and tourism development;
(7) Educational policies;
(8) Preservation and development of the cultural heritage; and
(9) Such other matters as may be authorized by law for the promotion of t
he general welfare of the people of the region. (Underscoring supplied)


Again on the premise that the BJE may be regarded as an autonomous reg
ion, the MOA-AD would require an amendment that would expand the above-quoted pr
ovision. The mere passage of new legislation pursuant to sub-paragraph No. 9 of
said constitutional provision would not suffice, since any new law that might v
est in the BJE the powers found in the MOA-AD must, itself, comply with other pr
ovisions of the Constitution. It would not do, for instance, to merely pass leg
islation vesting the BJE with treaty-making power in order to accommodate paragr
aph 4 of the strand on RESOURCES which states: gThe BJE is free to enter into any
economic cooperation and trade relations with foreign countries: provided, howe
ver, that such relationships and understandings do not include aggression agains
t the Government of the Republic of the Philippines x x x.h Under our constituti
onal system, it is only the President who has that power. Pimentel v. Executive
Secretary[155] instructs:

In our system of government, the President, being the head of state,
is regarded as the sole organ and authority in external relations and is the co
untry's sole representative with foreign nations. As the chief architect of for
eign policy, the President acts as the country's mouthpiece with respect to inte
rnational affairs. Hence, the President is vested with the authority to deal wit
h foreign states and governments, extend or withhold recognition, maintain diplo
matic relations, enter into treaties, and otherwise transact the business of for
eign relations. In the realm of treaty-making, the President has the sole autho
rity to negotiate with other states. (Emphasis and underscoring supplied)


Article II, Section 22 of the Constitution must also be amended if the
scheme envisioned in the MOA-AD is to be effected. That constitutional provisi
on states: gThe State recognizes and promotes the rights of indigenous cultural c
ommunities within the framework of national unity and development.h (Underscorin
g supplied) An associative arrangement does not uphold national unity. While t
here may be a semblance of unity because of the associative ties between the BJE
and the national government, the act of placing a portion of Philippine territo
ry in a status which, in international practice, has generally been a preparatio
n for independence, is certainly not conducive to national unity.

Besides being irreconcilable with the Constitution, the MOA-AD is also inconsist
ent with prevailing statutory law, among which are R.A. No. 9054[156] or the Org
anic Act of the ARMM, and the IPRA.[157]


Article X, Section 3 of the Organic Act of the ARMM is a bar to the ad
option of the definition of gBangsamoro peopleh used in the MOA-AD. Paragraph 1 o
n CONCEPTS AND PRINCIPLES states:

1. It is the birthright of all Moros and all Indigenous peoples of Mindanao to i
dentify themselves and be accepted as gBangsamorosh. The Bangsamoro people refers
to those who are natives or original inhabitants of Mindanao and its adjacent is
lands including Palawan and the Sulu archipelago at the time of conquest or colo
nization of its descendants whether mixed or of full blood. Spouses and their de
scendants are classified as Bangsamoro. The freedom of choice of the Indigenous
people shall be respected. (Emphasis and underscoring supplied)

This use of the term Bangsamoro sharply contrasts with that found in
the Article X, Section 3 of the Organic Act, which, rather than lumping togethe
r the identities of the Bangsamoro and other indigenous peoples living in Mindan
ao, clearly distinguishes between Bangsamoro people and Tribal peoples, as follo
ws:

gAs used in this Organic Act, the phrase gindigenous cultural communityh refers to
Filipino citizens residing in the autonomous region who are:

(a) Tribal peoples. These are citizens whose social, cultural and economic cond
itions distinguish them from other sectors of the national community; and

(b) Bangsa Moro people. These are citizens who are believers in Islam and who h
ave retained some or all of their own social, economic, cultural, and political
institutions.h


Respecting the IPRA, it lays down the prevailing procedure for the del
ineation and recognition of ancestral domains. The MOA-ADfs manner of delineatin
g the ancestral domain of the Bangsamoro people is a clear departure from that p
rocedure. By paragraph 1 of TERRITORY, the Parties simply agree that, subject t
o the delimitations in the agreed Schedules, g[t]he Bangsamoro homeland and histo
ric territory refer to the land mass as well as the maritime, terrestrial, fluvi
al and alluvial domains, and the aerial domain, the atmospheric space above it,
embracing the Mindanao-Sulu-Palawan geographic region.h

Chapter VIII of the IPRA, on the other hand, lays down a detailed proc
edure, as illustrated in the following provisions thereof:

SECTION 52. Delineation Process. ? The identification and delineation of ancestr
al domains shall be done in accordance with the following procedures:

x x x x

b) Petition for Delineation. ? The process of delineating a specific per
imeter may be initiated by the NCIP with the consent of the ICC/IP concerned, or
through a Petition for Delineation filed with the NCIP, by a majority of the me
mbers of the ICCs/IPs;

c) Delineation Proper. ? The official delineation of ancestral domain bo
undaries including census of all community members therein, shall be immediately
undertaken by the Ancestral Domains Office upon filing of the application by th
e ICCs/IPs concerned. Delineation will be done in coordination with the communit
y concerned and shall at all times include genuine involvement and participation
by the members of the communities concerned;

d) Proof Required. ? Proof of Ancestral Domain Claims shall include the
testimony of elders or community under oath, and other documents directly or ind
irectly attesting to the possession or occupation of the area since time immemor
ial by such ICCs/IPs in the concept of owners which shall be any one (1) of the
following authentic documents:

1) Written accounts of the ICCs/IPs customs and traditions;

2) Written accounts of the ICCs/IPs political structure and institution;

3) Pictures showing long term occupation such as those of old improvements, bu
rial grounds, sacred places and old villages;

4) Historical accounts, including pacts and agreements concerning boundaries e
ntered into by the ICCs/IPs concerned with other ICCs/IPs;

5) Survey plans and sketch maps;

6) Anthropological data;

7) Genealogical surveys;

8) Pictures and descriptive histories of traditional communal forests and hunt
ing grounds;

9) Pictures and descriptive histories of traditional landmarks such as mountai
ns, rivers, creeks, ridges, hills, terraces and the like; and

10) Write-ups of names and places derived from the native dialect of the communi
ty.

e) Preparation of Maps. ? On the basis of such investigation and the fin
dings of fact based thereon, the Ancestral Domains Office of the NCIP shall prep
are a perimeter map, complete with technical descriptions, and a description of
the natural features and landmarks embraced therein;

f) Report of Investigation and Other Documents. ? A complete copy of th
e preliminary census and a report of investigation, shall be prepared by the Anc
estral Domains Office of the NCIP;

g) Notice and Publication. ? A copy of each document, including a transl
ation in the native language of the ICCs/IPs concerned shall be posted in a prom
inent place therein for at least fifteen (15) days. A copy of the document shall
also be posted at the local, provincial and regional offices of the NCIP, and s
hall be published in a newspaper of general circulation once a week for two (2)
consecutive weeks to allow other claimants to file opposition thereto within fif
teen (15) days from date of such publication: Provided, That in areas where no s
uch newspaper exists, broadcasting in a radio station will be a valid substitute
: Provided, further, That mere posting shall be deemed sufficient if both newspa
per and radio station are not available;

h) Endorsement to NCIP. ? Within fifteen (15) days from publication, and
of the inspection process, the Ancestral Domains Office shall prepare a report
to the NCIP endorsing a favorable action upon a claim that is deemed to have suf
ficient proof. However, if the proof is deemed insufficient, the Ancestral Domai
ns Office shall require the submission of additional evidence: Provided, That th
e Ancestral Domains Office shall reject any claim that is deemed patently false
or fraudulent after inspection and verification: Provided, further, That in case
of rejection, the Ancestral Domains Office shall give the applicant due notice,
copy furnished all concerned, containing the grounds for denial. The denial sha
ll be appealable to the NCIP: Provided, furthermore, That in cases where there a
re conflicting claims among ICCs/IPs on the boundaries of ancestral domain claim
s, the Ancestral Domains Office shall cause the contending parties to meet and a
ssist them in coming up with a preliminary resolution of the conflict, without p
rejudice to its full adjudication according to the section below.

x x x x
To remove all doubts about the irreconcilability of the MOA-AD with the present
legal system, a discussion of not only the Constitution and domestic statutes, b
ut also of international law is in order, for

Article II, Section 2 of the Constitution states that the Philippines gadopts the
generally accepted principles of international law as part of the law of the la
nd.h


Applying this provision of the Constitution, the Court, in Mejoff v. Director of
Prisons,[158] held that the Universal Declaration of Human Rights is part of th
e law of the land on account of which it ordered the release on bail of a detain
ed alien of Russian descent whose deportation order had not been executed even a
fter two years. Similarly, the Court in Agustin v. Edu[159] applied the aforesa
id constitutional provision to the 1968 Vienna Convention on Road Signs and Sign
als.

International law has long recognized the right to self-determination
of gpeoples,h understood not merely as the entire population of a State but also a
portion thereof. In considering the question of whether the people of Quebec h
ad a right to unilaterally secede from Canada, the Canadian Supreme Court in REF
ERENCE RE SECESSION OF QUEBEC[160] had occasion to acknowledge that gthe right of
a people to self-determination is now so widely recognized in international con
ventions that the principle has acquired a status beyond econventionf and is consi
dered a general principle of international law.h

Among the conventions referred to are the International Covenant on Civil and Po
litical Rights[161] and the International Covenant on Economic, Social and Cultu
ral Rights[162] which state, in Article 1 of both covenants, that all peoples, b
y virtue of the right of self-determination, gfreely determine their political st
atus and freely pursue their economic, social, and cultural development.h

The peoplefs right to self-determination should not, however, be unders
tood as extending to a unilateral right of secession. A distinction should be m
ade between the right of internal and external self-determination. REFERENCE RE
SECESSION OF QUEBEC is again instructive:

g(ii) Scope of the Right to Self-determination

126. The recognized sources of international law establish that the
right to self-determination of a people is normally fulfilled through internal
self-determination ? a peoplefs pursuit of its political, economic, social and cu
ltural development within the framework of an existing state. A right to extern
al self-determination (which in this case potentially takes the form of the asse
rtion of a right to unilateral secession) arises in only the most extreme of cas
es and, even then, under carefully defined circumstances. x x x

External self-determination can be defined as in the following statement from th
e Declaration on Friendly Relations, supra, as

The establishment of a sovereign and independent State, the free association or
integration with an independent State or the emergence into any other political
status freely determined by a people constitute modes of implementing the right
of self-determination by that people. (Emphasis added)

127. The international law principle of self-determination has evol
ved within a framework of respect for the territorial integrity of existing stat
es. The various international documents that support the existence of a peoplefs
right to self-determination also contain parallel statements supportive of the
conclusion that the exercise of such a right must be sufficiently limited to pre
vent threats to an existing statefs territorial integrity or the stability of rel
ations between sovereign states.

x x x x (Emphasis, italics and underscoring supplied)


The Canadian Court went on to discuss the exceptional cases in which t
he right to external self-determination can arise, namely, where a people is und
er colonial rule, is subject to foreign domination or exploitation outside a col
onial context, and ? less definitely but asserted by a number of commentators ?
is blocked from the meaningful exercise of its right to internal self-determinat
ion. The Court ultimately held that the population of Quebec had no right to se
cession, as the same is not under colonial rule or foreign domination, nor is it
being deprived of the freedom to make political choices and pursue economic, so
cial and cultural development, citing that Quebec is equitably represented in le
gislative, executive and judicial institutions within Canada, even occupying pro
minent positions therein.

The exceptional nature of the right of secession is further exemplifie
d in the REPORT OF THE INTERNATIONAL COMMITTEE OF JURISTS ON THE LEGAL ASPECTS O
F THE AALAND ISLANDS QUESTION.[163] There, Sweden presented to the Council of t
he League of Nations the question of whether the inhabitants of the Aaland Islan
ds should be authorized to determine by plebiscite if the archipelago should rem
ain under Finnish sovereignty or be incorporated in the kingdom of Sweden. The
Council, before resolving the question, appointed an International Committee com
posed of three jurists to submit an opinion on the preliminary issue of whether
the dispute should, based on international law, be entirely left to the domestic
jurisdiction of Finland. The Committee stated the rule as follows:

x x x [I]n the absence of express provisions in international treati
es, the right of disposing of national territory is essentially an attribute of
the sovereignty of every State. Positive International Law does not recognize t
he right of national groups, as such, to separate themselves from the State of w
hich they form part by the simple expression of a wish, any more than it recogni
zes the right of other States to claim such a separation. Generally speaking, t
he grant or refusal of the right to a portion of its population of determining i
ts own political fate by plebiscite or by some other method, is, exclusively, an
attribute of the sovereignty of every State which is definitively constituted.
A dispute between two States concerning such a question, under normal condition
s therefore, bears upon a question which International Law leaves entirely to th
e domestic jurisdiction of one of the States concerned. Any other solution woul
d amount to an infringement of sovereign rights of a State and would involve the
risk of creating difficulties and a lack of stability which would not only be c
ontrary to the very idea embodied in term gState,h but would also endanger the int
erests of the international community. If this right is not possessed by a larg
e or small section of a nation, neither can it be held by the State to which the
national group wishes to be attached, nor by any other State. (Emphasis and un
derscoring supplied)


The Committee held that the dispute concerning the Aaland Islands did not refer
to a question which is left by international law to the domestic jurisdiction of
Finland, thereby applying the exception rather than the rule elucidated above.
Its ground for departing from the general rule, however, was a very narrow one,
namely, the Aaland Islands agitation originated at a time when Finland was unde
rgoing drastic political transformation. The internal situation of Finland was,
according to the Committee, so abnormal that, for a considerable time, the cond
itions required for the formation of a sovereign State did not exist. In the mi
dst of revolution, anarchy, and civil war, the legitimacy of the Finnish nationa
l government was disputed by a large section of the people, and it had, in fact,
been chased from the capital and forcibly prevented from carrying out its dutie
s. The armed camps and the police were divided into two opposing forces. In li
ght of these circumstances, Finland was not, during the relevant time period, a g
definitively constitutedh sovereign state. The Committee, therefore, found that
Finland did not possess the right to withhold from a portion of its population t
he option to separate itself ? a right which sovereign nations generally have wi
th respect to their own populations.

Turning now to the more specific category of indigenous peoples, this
term has been used, in scholarship as well as international, regional, and state
practices, to refer to groups with distinct cultures, histories, and connection
s to land (spiritual and otherwise) that have been forcibly incorporated into a
larger governing society. These groups are regarded as gindigenoush since they are
the living descendants of pre-invasion inhabitants of lands now dominated by ot
hers. Otherwise stated, indigenous peoples, nations, or communities are cultura
lly distinctive groups that find themselves engulfed by settler societies born o
f the forces of empire and conquest.[164] Examples of groups who have been rega
rded as indigenous peoples are the Maori of New Zealand and the aboriginal peopl
es of Canada.

As with the broader category of gpeoples,h indigenous peoples situated w
ithin states do not have a general right to independence or secession from those
states under international law,[165] but they do have rights amounting to what
was discussed above as the right to internal self-determination.

In a historic development last September 13, 2007, the UN General Asse
mbly adopted the United Nations Declaration on the Rights of Indigenous Peoples
(UN DRIP) through General Assembly Resolution 61/295. The vote was 143 to 4, th
e Philippines being included among those in favor, and the four voting against b
eing Australia, Canada, New Zealand, and the U.S. The Declaration clearly recog
nized the right of indigenous peoples to self-determination, encompassing the ri
ght to autonomy or self-government, to wit:

Article 3

Indigenous peoples have the right to self-determination. By virtue of that right
they freely determine their political status and freely pursue their economic,
social and cultural development.

Article 4

Indigenous peoples, in exercising their right to self-determination, have the ri
ght to autonomy or self-government in matters relating to their internal and loc
al affairs, as well as ways and means for financing their autonomous functions.

Article 5

Indigenous peoples have the right to maintain and strengthen their distinct poli
tical, legal, economic, social and cultural institutions, while retaining their
right to participate fully, if they so choose, in the political, economic, socia
l and cultural life of the State.


Self-government, as used in international legal discourse pertaining t
o indigenous peoples, has been understood as equivalent to ginternal self-determi
nation.h[166] The extent of self-determination provided for in the UN DRIP is mo
re particularly defined in its subsequent articles, some of which are quoted her
eunder:
Article 8
1. Indigenous peoples and individuals have the right not to be subjected to
forced assimilation or destruction of their culture.
2. States shall provide effective mechanisms for prevention of, and redress
for:
(a) Any action which has the aim or effect of depriving them of their integr
ity as distinct peoples, or of their cultural values or ethnic identities;
(b) Any action which has the aim or effect of dispossessing them of their la
nds, territories or resources;
(c) Any form of forced population transfer which has the aim or effect of vi
olating or undermining any of their rights;
(d) Any form of forced assimilation or integration;
(e) Any form of propaganda designed to promote or incite racial or ethnic di
scrimination directed against them.
Article 21

1. Indigenous peoples have the right, without discrimination, to the improv
ement of their economic and social conditions, including, inter alia, in the are
as of education, employment, vocational training and retraining, housing, sanita
tion, health and social security.
2. States shall take effective measures and, where appropriate, special mea
sures to ensure continuing improvement of their economic and social conditions.
Particular attention shall be paid to the rights and special needs of indigenous
elders, women, youth, children and persons with disabilities.

Article 26

1. Indigenous peoples have the right to the lands, territories and resource
s which they have traditionally owned, occupied or otherwise used or acquired.
2. Indigenous peoples have the right to own, use, develop and control the l
ands, territories and resources that they possess by reason of traditional owner
ship or other traditional occupation or use, as well as those which they have ot
herwise acquired.
3. States shall give legal recognition and protection to these lands, terri
tories and resources. Such recognition shall be conducted with due respect to th
e customs, traditions and land tenure systems of the indigenous peoples concerne
d.

Article 30

1. Military activities shall not take place in the lands or territories of
indigenous peoples, unless justified by a relevant public interest or otherwise
freely agreed with or requested by the indigenous peoples concerned.

2. States shall undertake effective consultations with the indigenous peopl
es concerned, through appropriate procedures and in particular through their rep
resentative institutions, prior to using their lands or territories for military
activities.

Article 32

1. Indigenous peoples have the right to determine and develop priorities an
d strategies for the development or use of their lands or territories and other
resources.

2. States shall consult and cooperate in good faith with the indigenous peo
ples concerned through their own representative institutions in order to obtain
their free and informed consent prior to the approval of any project affecting t
heir lands or territories and other resources, particularly in connection with t
he development, utilization or exploitation of mineral, water or other resources
.

3. States shall provide effective mechanisms for just and fair redress for
any such activities, and appropriate measures shall be taken to mitigate adverse
environmental, economic, social, cultural or spiritual impact.

Article 37

1. Indigenous peoples have the right to the recognition, observance and enf
orcement of treaties, agreements and other constructive arrangements concluded w
ith States or their successors and to have States honour and respect such treati
es, agreements and other constructive arrangements.

2. Nothing in this Declaration may be interpreted as diminishing or elimina
ting the rights of indigenous peoples contained in treaties, agreements and othe
r constructive arrangements.

Article 38

States in consultation and cooperation with indigenous peoples, shall take the a
ppropriate measures, including legislative measures, to achieve the ends of this
Declaration.



Assuming that the UN DRIP, like the Universal Declaration on Human Rig
hts, must now be regarded as embodying customary international law ? a question
which the Court need not definitively resolve here ? the obligations enumerated
therein do not strictly require the Republic to grant the Bangsamoro people, thr
ough the instrumentality of the BJE, the particular rights and powers provided f
or in the MOA-AD. Even the more specific provisions of the UN DRIP are general
in scope, allowing for flexibility in its application by the different States.

There is, for instance, no requirement in the UN DRIP that States now guarantee
indigenous peoples their own police and internal security force. Indeed, Articl
e 8 presupposes that it is the State which will provide protection for indigenou
s peoples against acts like the forced dispossession of their lands ? a function
that is normally performed by police officers. If the protection of a right s
o essential to indigenous peoplefs identity is acknowledged to be the responsibil
ity of the State, then surely the protection of rights less significant to them
as such peoples would also be the duty of States. Nor is there in the UN DRIP a
n acknowledgement of the right of indigenous peoples to the aerial domain and at
mospheric space. What it upholds, in Article 26 thereof, is the right of indige
nous peoples to the lands, territories and resources which they have traditional
ly owned, occupied or otherwise used or acquired.

Moreover, the UN DRIP, while upholding the right of indigenous peoples
to autonomy, does not obligate States to grant indigenous peoples the near-inde
pendent status of an associated state. All the rights recognized in that docume
nt are qualified in Article 46 as follows:

1. Nothing in this Declaration may be interpreted as implying for any State
, people, group or person any right to engage in any activity or to perform any
act contrary to the Charter of the United Nations or construed as authorizing or
encouraging any action which would dismember or impair, totally or in part, the
territorial integrity or political unity of sovereign and independent States.


Even if the UN DRIP were considered as part of the law of the land pur
suant to Article II, Section 2 of the Constitution, it would not suffice to upho
ld the validity of the MOA-AD so as to render its compliance with other laws unn
ecessary.

It is, therefore, clear that the MOA-AD contains numerous provisions t
hat cannot be reconciled with the Constitution and the laws as presently worded.
Respondents proffer, however, that the signing of the MOA-AD alone would not h
ave entailed any violation of law or grave abuse of discretion on their part, pr
ecisely because it stipulates that the provisions thereof inconsistent with the
laws shall not take effect until these laws are amended. They cite
paragraph 7 of the MOA-AD strand on GOVERNANCE quoted earlier, but which is repr
oduced below for convenience:

7. The Parties agree that the mechanisms and modalities for the actual impleme
ntation of this MOA-AD shall be spelt out in the Comprehensive Compact to mutual
ly take such steps to enable it to occur effectively.
Any provisions of the MOA-AD requiring amendments to the existing legal framewor
k shall come into force upon signing of a Comprehensive Compact and upon effecti
ng the necessary changes to the legal framework with due regard to non derogatio
n of prior agreements and within the stipulated timeframe to be contained in the
Comprehensive Compact.

Indeed, the foregoing stipulation keeps many controversial provisions of the MOA
-AD from coming into force until the necessary changes to the legal framework ar
e effected. While the word gConstitutionh is not mentioned in the provision now u
nder consideration or anywhere else in the MOA-AD, the term glegal frameworkh is c
ertainly broad enough to include the Constitution.

Notwithstanding the suspensive clause, however, respondents, by their mere act o
f incorporating in the MOA-AD the provisions thereof regarding the associative r
elationship between the BJE and the Central Government, have already violated th
e Memorandum of Instructions From The President dated March 1, 2001, which state
s that the gnegotiations shall be conducted in accordance with x x x the principl
es of the sovereignty and territorial integrity of the Republic of the Philippin
es.h (Emphasis supplied) Establishing an associative relationship between the BJ
E and the Central Government is, for the reasons already discussed, a preparatio
n for independence, or worse, an implicit acknowledgment of an independent statu
s already prevailing.

Even apart from the above-mentioned Memorandum, however, the MOA-AD is defective
because the suspensive clause is invalid, as discussed below.

The authority of the GRP Peace Negotiating Panel to negotiate with the
MILF is founded on E.O. No. 3, Section 5(c), which states that there shall be e
stablished Government Peace Negotiating Panels for negotiations with different r
ebel groups to be gappointed by the President as her official emissaries to condu
ct negotiations, dialogues, and face-to-face discussions with rebel groups.h The
se negotiating panels are to report to the President, through the PAPP on the co
nduct and progress of the negotiations.

It bears noting that the GRP Peace Panel, in exploring lasting solutions to the
Moro Problem through its negotiations with the MILF, was not restricted by E.O.
No. 3 only to those options available under the laws as they presently stand. O
ne of the components of a comprehensive peace process, which E.O. No. 3 collecti
vely refers to as the gPaths to Peace,h is the pursuit of social, economic, and po
litical reforms which may require new legislation or even constitutional amendme
nts. Sec. 4(a) of E.O. No. 3, which reiterates Section 3(a), of E.O. No. 125,[1
67] states:

SECTION 4. The Six Paths to Peace. ? The components of the comprehensive peace p
rocess comprise the processes known as the gPaths to Peaceh. These component proc
esses are interrelated and not mutually exclusive, and must therefore be pursued
simultaneously in a coordinated and integrated fashion. They shall include, bu
t may not be limited to, the following:

a. PURSUIT OF SOCIAL, ECONOMIC AND POLITICAL REFORMS. This component invol
ves the vigorous implementation of various policies, reforms, programs and proje
cts aimed at addressing the root causes of internal armed conflicts and social u
nrest. This may require administrative action, new legislation or even constitu
tional amendments.

x x x x (Emphasis supplied)


The MOA-AD, therefore, may reasonably be perceived as an attempt of respondents
to address, pursuant to this provision of E.O. No. 3, the root causes of the arm
ed conflict in Mindanao. The E.O. authorized them to gthink outside the box,h so
to speak. Hence, they negotiated and were set on signing the MOA-AD that includ
ed various social, economic, and political reforms which cannot, however, all be
accommodated within the present legal framework, and which thus would require n
ew legislation and constitutional amendments.

The inquiry on the legality of the gsuspensive clause,h however, cannot
stop here, because it must be asked

whether the President herself may exercise the power delegated to the GRP Peace
Panel under E.O. No. 3, Sec. 4(a).
The President cannot delegate a power that she herself does not possess. May th
e President, in the course of peace negotiations, agree to pursue reforms that w
ould require new legislation and constitutional amendments, or should the reform
s be restricted only to those solutions which the present laws allow? The answe
r to this question requires a discussion of

the extent of the Presidentfs power to conduct peace negotiations.


That the authority of the President to conduct peace negotiations wit
h rebel groups is not explicitly mentioned in the Constitution does not mean tha
t she has no such authority. In Sanlakas v. Executive Secretary,[168] in issue w
as the authority of the President to declare a state of rebellion ? an authority
which is not expressly provided for in the Constitution. The Court held thus:

gIn her ponencia in Marcos v. Manglapus, Justice Cortes put her thesi
s into jurisprudence. There, the Court, by a slim 8-7 margin, upheld the Presid
ent's power to forbid the return of her exiled predecessor. The rationale for th
e majority's ruling rested on the President's

. . . unstated residual powers which are implied from the grant of e
xecutive power and which are necessary for her to comply with her duties under t
he Constitution. The powers of the President are not limited to what are express
ly enumerated in the article on the Executive Department and in scattered provis
ions of the Constitution. This is so, notwithstanding the avowed intent of the m
embers of the Constitutional Commission of 1986 to limit the powers of the Presi
dent as a reaction to the abuses under the regime of Mr. Marcos, for the result
was a limitation of specific powers of the President, particularly those relatin
g to the commander-in-chief clause, but not a diminution of the general grant of
executive power.

Thus, the President's authority to declare a state of rebellion spri
ngs in the main from her powers as chief executive and, at the same time, draws
strength from her Commander-in-Chief powers. x x x (Emphasis and underscor
ing supplied)
Similarly, the Presidentfs power to conduct peace negotiations is implicitly incl
uded in her powers as Chief Executive and Commander-in-Chief. As Chief Executive
, the President has the general responsibility to promote public peace, and as C
ommander-in-Chief, she has the more specific duty to prevent and suppress rebell
ion and lawless violence.[169]

As the experience of nations which have similarly gone through interna
l armed conflict will show, however, peace is rarely attained by simply pursuing
a military solution. Oftentimes, changes as far-reaching as a fundamental reco
nfiguration of the nationfs constitutional structure is required. The observatio
ns of Dr. Kirsti Samuels are enlightening, to wit:

x x x [T]he fact remains that a successful political and governance transition m
ust form the core of any post-conflict peace-building mission. As we have observ
ed in Liberia and Haiti over the last ten years, conflict cessation without modi
fication of the political environment, even where state-building is undertaken t
hrough technical electoral assistance and institution- or capacity-building, is
unlikely to succeed. On average, more than 50 percent of states emerging from c
onflict return to conflict. Moreover, a substantial proportion of transitions h
ave resulted in weak or limited democracies.

The design of a constitution and its constitution-making process can play an imp
ortant role in the political and governance transition. Constitution-making afte
r conflict is an opportunity to create a common vision of the future of a state
and a road map on how to get there. The constitution can be partly a peace agree
ment and partly a framework setting up the rules by which the new democracy will
operate.[170]

In the same vein, Professor Christine Bell, in her article on the natu
re and legal status of peace agreements, observed that the typical way that peac
e agreements establish or confirm mechanisms for demilitarization and demobiliza
tion is by linking them to new constitutional structures addressing governance,
elections, and legal and human rights institutions.[171]

In the Philippine experience, the link between peace agreements and constitution
-making has been recognized by no less than the framers of the Constitution. B
ehind the provisions of the Constitution on autonomous regions[172] is the frame
rsf intention to implement a particular peace agreement, namely, the Tripoli Agre
ement of 1976 between the GRP and the MNLF, signed by then Undersecretary of Nat
ional Defense Carmelo Z. Barbero and then MNLF Chairman Nur Misuari.

MR. ROMULO. There are other speakers; so, although I have some more questions,
I will reserve my right to ask them if they are not covered by the other speaker
s. I have only two questions.
I heard one of the Commissioners say that local autonomy already exists in the M
uslim region; it is working very well; it has, in fact, diminished a great deal
of the problems. So, my question is: since that already exists, why do we have
to go into something new?

MR. OPLE. May I answer that on behalf of Chairman Nolledo. Commissioner Yusup
Abubakar is right that certain definite steps have been taken to implement the p
rovisions of the Tripoli Agreement with respect to an autonomous region in Minda
nao. This is a good first step, but there is no question that this is merely a
partial response to the Tripoli Agreement itself and to the fuller standard of r
egional autonomy contemplated in that agreement, and now by state policy.[173]
(Emphasis supplied)


The constitutional provisions on autonomy and the statutes enacted pur
suant to them have, to the credit of their drafters, been partly successful. No
netheless, the Filipino people are still faced with the reality of an on-going c
onflict between the Government and the MILF. If the President is to be expected
to find means for bringing this conflict to an end and to achieve lasting peace
in Mindanao, then she must be given the leeway to explore, in the course of pea
ce negotiations, solutions that may require changes to the Constitution for thei
r implementation. Being uniquely vested with the power to conduct peace negotia
tions with rebel groups, the President is in a singular position to know the pre
cise nature of their grievances which, if resolved, may bring an end to hostilit
ies.

The President may not, of course, unilaterally implement the solutions that she
considers viable, but she may not be prevented from submitting them as recommend
ations to Congress, which could then, if it is minded, act upon them pursuant to
the legal procedures for constitutional amendment and revision. In particular,
Congress would have the option, pursuant to Article XVII, Sections 1 and 3 of t
he Constitution, to propose the recommended amendments or revision to the people
, call a constitutional convention, or submit to the electorate the question of
calling such a convention.

While the President does not possess constituent powers ? as those pow
ers may be exercised only by Congress, a Constitutional Convention, or the peopl
e through initiative and referendum ? she may submit proposals for constitutiona
l change to Congress in a manner that does not involve the arrogation of constit
uent powers.

In Sanidad v. COMELEC,[174] in issue was the legality of then Presiden
t Marcosf act of directly submitting proposals for constitutional amendments to a
referendum, bypassing the interim National Assembly which was the body vested b
y the 1973 Constitution with the power to propose such amendments. President Ma
rcos, it will be recalled, never convened the interim National Assembly. The ma
jority upheld the Presidentfs act, holding that gthe urges of absolute necessityh c
ompelled the President as the agent of the people to act as he did, there being
no interim National Assembly to propose constitutional amendments. Against this
ruling, Justices Teehankee and Munoz Palma vigorously dissented. The Courtfs co
ncern at present, however, is not with regard to the point on which it was then
divided in that controversial case, but on that which was not disputed by either
side.

Justice Teehankeefs dissent,[175] in particular, bears noting. While he disagree
d that the President may directly submit proposed constitutional amendments to a
referendum, implicit in his opinion is a recognition that he would have upheld
the Presidentfs action along with the majority had the President convened the int
erim National Assembly and coursed his proposals through it. Thus Justice Teeha
nkee opined:

gSince the Constitution provides for the organization of the essentia
l departments of government, defines and delimits the powers of each and prescri
bes the manner of the exercise of such powers, and the constituent power has not
been granted to but has been withheld from the President or Prime Minister, it
follows that the Presidentfs questioned decrees proposing and submitting constitu
tional amendments directly to the people (without the intervention of the interi
m National Assembly in whom the power is expressly vested) are devoid of constit
utional and legal basis.h[176] (Emphasis supplied)


From the foregoing discussion, the principle may be inferred that the
President ? in the course of conducting peace negotiations ? may validly conside
r implementing even those policies that require changes to the Constitution, but
she may not unilaterally implement them without the intervention of Congress,
or act in any way as if the assent of that body were assumed as a certainty.

Since, under the present Constitution, the people also have the power
to directly propose amendments through initiative and referendum, the President
may also submit her recommendations to the people, not as a formal proposal to b
e voted on in a plebiscite similar to what President Marcos did in Sanidad, but
for their independent consideration of whether these recommendations merit being
formally proposed through initiative.

These recommendations, however, may amount to nothing more than the Pr
esidentfs suggestions to the people, for any further involvement in the process o
f initiative by the Chief Executive may vitiate its character as a genuine gpeopl
efs initiative.h The only initiative recognized by the Constitution is that which
truly proceeds from the people. As the Court stated in Lambino v. COMELEC:[177
]

gThe Lambino Group claims that their initiative is the epeople's voice.f However, t
he Lambino Group unabashedly states in ULAP Resolution No. 2006-02, in the verif
ication of their petition with the COMELEC, that eULAP maintains its unqualified
support to the agenda of Her Excellency President Gloria Macapagal-Arroyo for co
nstitutional reforms.f The Lambino Group thus admits that their epeople'sf initiati
ve is an eunqualified support to the agendaf of the incumbent President to change
the Constitution. This forewarns the Court to be wary of incantations of epeople'
s voicef or esovereign willf in the present initiative.h

It will be observed that the President has authority, as stated in her oath of o
ffice,[178] only to preserve and defend the Constitution. Such presidential pow
er does not, however, extend to allowing her to change the Constitution, but sim
ply to recommend proposed amendments or revision. As long as she limits herself
to recommending these changes and submits to the proper procedure for constitut
ional amendments and revision, her mere recommendation need not be construed as
an unconstitutional act.

The foregoing discussion focused on the Presidentfs authority to propose constitu
tional amendments, since her authority to propose new legislation is not in cont
roversy. It has been an accepted practice for Presidents in this jurisdiction t
o propose new legislation. One of the more prominent instances the practice is
usually done is in the yearly State of the Nation Address of the President to Co
ngress. Moreover, the annual general appropriations bill has always been based
on the budget prepared by the President, which ? for all intents and purposes ?
is a proposal for new legislation coming from the President.[179]

The gsuspensive clauseh in the MOA-AD viewed in light of the above-discussed stand
ards

Given the limited nature of the Presidentfs authority to propose constitutional a
mendments, she cannot guarantee to any third party that the required amendments
will eventually be put in place, nor even be submitted to a plebiscite. The mos
t she could do is submit these proposals as recommendations either to Congress o
r the people, in whom constituent powers are vested.

Paragraph 7 on Governance of the MOA-AD states, however, that all provisions the
reof which cannot be reconciled with the present Constitution and laws gshall com
e into force upon signing of a Comprehensive Compact and upon effecting the nece
ssary changes to the legal framework.h This stipulation does not bear the marks
of a suspensive condition ? defined in civil law as a future and uncertain event
? but of a term. It is not a question of whether the necessary changes to the
legal framework will be effected, but when. That there is no uncertainty being
contemplated is plain from what follows, for the paragraph goes on to state that
the contemplated changes shall be gwith due regard to non derogation of prior ag
reements and within the stipulated timeframe to be contained in the Comprehensiv
e Compact.h

Pursuant to this stipulation, therefore, it is mandatory for the GRP to effect t
he changes to the legal framework contemplated in the MOA-AD ? which changes wou
ld include constitutional amendments, as discussed earlier. It bears noting tha
t,


By the time these changes are put in place, the MOA-AD itself would be counted a
mong the gprior agreementsh from which there could be no derogation.
What remains for discussion in the Comprehensive Compact would merely be the imp
lementing details for these gconsensus pointsh and, notably, the deadline for effe
cting the contemplated changes to the legal framework.

Plainly, stipulation-paragraph 7 on GOVERNANCE is inconsistent with the limits o
f the Presidentfs authority to propose constitutional amendments, it being a virt
ual guarantee that the Constitution and the laws of the Republic of the Philippi
nes will certainly be adjusted to conform to all the gconsensus pointsh found in t
he MOA-AD. Hence, it must be struck down as unconstitutional.

A comparison between the gsuspensive clauseh of the MOA-AD with a similar provisio
n appearing in the 1996 final peace agreement between the MNLF and the GRP is mo
st instructive.

As a backdrop, the parties to the 1996 Agreement stipulated that it would be imp
lemented in two phases. Phase I covered a three-year transitional period involv
ing the putting up of new administrative structures through Executive Order, suc
h as the Special Zone of Peace and Development (SZOPAD) and the Southern Philipp
ines Council for Peace and Development (SPCPD), while Phase II covered the estab
lishment of the new regional autonomous government through amendment or repeal o
f R.A. No. 6734, which was then the Organic Act of the ARMM.

The stipulations on Phase II consisted of specific agreements on the structure o
f the expanded autonomous region envisioned by the parties. To that extent, the
y are similar to the provisions of the MOA-AD. There is, however, a crucial dif
ference between the two agreements. While the MOA-AD virtually guarantees that
the gnecessary changes to the legal frameworkh will be put in place, the GRP-MNLF
final peace agreement states thus: gAccordingly, these provisions [on Phase II] s
hall be recommended by the GRP to Congress for incorporation in the amendatory o
r repealing law.h

Concerns have been raised that the MOA-AD would have given rise to a b
inding international law obligation on the part of the Philippines to change its
Constitution in conformity thereto, on the ground that it may be considered ei
ther as a binding agreement under international law, or a unilateral declaration
of the Philippine government to the international community that it would grant
to the Bangsamoro people all the concessions therein stated. Neither ground fi
nds sufficient support in international law, however.


The MOA-AD, as earlier mentioned in the overview thereof, would have included fo
reign dignitaries as signatories. In addition, representatives of other nations
were invited to witness its signing in Kuala Lumpur. These circumstances readi
ly lead one to surmise that the MOA-AD would have had the status of a binding in
ternational agreement had it been signed. An examination of the prevailing prin
ciples in international law, however, leads to the contrary conclusion.

The Decision on CHALLENGE TO JURISDICTION: LOME ACCORD AMNESTY[180] (the Lome Ac
cord case) of the Special Court of Sierra Leone is enlightening. The Lome Accor
d was a peace agreement signed on July 7, 1999 between the Government of Sierra
Leone and the Revolutionary United Front (RUF), a rebel group with which the Sie
rra Leone Government had been in armed conflict for around eight years at the ti
me of signing. There were non-contracting signatories to the agreement, among w
hich were the Government of the Togolese Republic, the Economic Community of Wes
t African States, and the UN.

On January 16, 2002, after a successful negotiation between the UN Secretary-Gen
eral and the Sierra Leone Government, another agreement was entered into by the
UN and that Government whereby the Special Court of Sierra Leone was established
. The sole purpose of the Special Court, an international court, was to try per
sons who bore the greatest responsibility for serious violations of internationa
l humanitarian law and Sierra Leonean law committed in the territory of Sierra L
eone since November 30, 1996.

Among the stipulations of the Lome Accord was a provision for the full pardon of
the members of the RUF with respect to anything done by them in pursuit of thei
r objectives as members of that organization since the conflict began.

In the Lome Accord case, the Defence argued that the Accord created an internati
onally binding obligation not to prosecute the beneficiaries of the amnesty prov
ided therein, citing, among other things, the participation of foreign dignitari
es and international organizations in the finalization of that agreement. The S
pecial Court, however, rejected this argument, ruling that the Lome Accord is no
t a treaty and that it can only create binding obligations and rights between th
e parties in municipal law, not in international law. Hence, the Special Court
held, it is ineffective in depriving an international court like it of jurisdict
ion.

g37. In regard to the nature of a negotiated settlement of an internal armed co
nflict it is easy to assume and to argue with some degree of plausibility, as De
fence counsel for the defendants seem to have done, that the mere fact that in a
ddition to the parties to the conflict, the document formalizing the settlement
is signed by foreign heads of state or their representatives and representatives
of international organizations, means the agreement of the parties is internati
onalized so as to create obligations in international law.

x x x x

40. Almost every conflict resolution will involve the parties to the conflict
and the mediator or facilitator of the settlement, or persons or bodies under w
hose auspices the settlement took place but who are not at all parties to the co
nflict, are not contracting parties and who do not claim any obligation from the
contracting parties or incur any obligation from the settlement.

41. In this case, the parties to the conflict are the lawful authority of the
State and the RUF which has no status of statehood and is to all intents and pu
rposes a faction within the state. The non-contracting signatories of the Lome
Agreement were moral guarantors of the principle that, in the terms of Article X
XXIV of the Agreement, gthis peace agreement is implemented with integrity and in
good faith by both partiesh. The moral guarantors assumed no legal obligation.
It is recalled that the UN by its representative appended, presumably for avoid
ance of doubt, an understanding of the extent of the agreement to be implemented
as not including certain international crimes.

42. An international agreement in the nature of a treaty must create rights a
nd obligations regulated by international law so that a breach of its terms will
be a breach determined under international law which will also provide principl
e means of enforcement. The Lome Agreement created neither rights nor obligatio
ns capable of being regulated by international law. An agreement such as the Lo
me Agreement which brings to an end an internal armed conflict no doubt creates
a factual situation of restoration of peace that the international community act
ing through the Security Council may take note of. That, however, will not conv
ert it to an international agreement which creates an obligation enforceable in
international, as distinguished from municipal, law. A breach of the terms of s
uch a peace agreement resulting in resumption of internal armed conflict or crea
ting a threat to peace in the determination of the Security Council may indicate
a reversal of the factual situation of peace to be visited with possible legal
consequences arising from the new situation of conflict created. Such consequen
ces such as action by the Security Council pursuant to Chapter VII arise from th
e situation and not from the agreement, nor from the obligation imposed by it.
Such action cannot be regarded as a remedy for the breach. A peace agreement wh
ich settles an internal armed conflict cannot be ascribed the same status as one
which settles an international armed conflict which, essentially, must be betwe
en two or more warring States. The Lome Agreement cannot be characterised as an
international instrument. x x xh (Emphasis, italics and underscoring supplied)

Similarly, that the MOA-AD would have been signed by representatives o
f States and international organizations not parties to the Agreement would not
have sufficed to vest in it a binding character under international law.

In another vein, concern has been raised that the MOA-AD would amount to a unila
teral declaration of the Philippine State, binding under international law, that
it would comply with all the stipulations stated therein, with the result that
it would have to amend its Constitution accordingly regardless of the true will
of the people. Cited as authority for this view is Australia v. France,[181] al
so known as the Nuclear Tests Case, decided by the International Court of Justic
e (ICJ).

In the Nuclear Tests Case, Australia challenged before the ICJ the legality of F
rancefs nuclear tests in the South Pacific. France refused to appear in the case
, but public statements from its President, and similar statements from other Fr
ench officials including its Minister of Defence, that its 1974 series of atmosp
heric tests would be its last, persuaded the ICJ to dismiss the case.[182] Tho
se statements, the ICJ held, amounted to a legal undertaking addressed to the in
ternational community, which required no acceptance from other States for it to
become effective.

Essential to the ICJ ruling is its finding that the French government intended t
o be bound to the international community in issuing its public statements, viz:

43. It is well recognized that declarations made by way of unilateral acts, c
oncerning legal or factual situations, may have the effect of creating legal obl
igations. Declarations of this kind may be, and often are, very specific. When i
t is the intention of the State making the declaration that it should become bou
nd according to its terms, that intention confers on the declaration the charact
er of a legal undertaking, the State being thenceforth legally required to follo
w a course of conduct consistent with the declaration. An undertaking of this ki
nd, if given publicly, and with an intent to be bound, even though not made with
in the context of international negotiations, is binding. In these circumstances
, nothing in the nature of a quid pro quo nor any subsequent acceptance of the d
eclaration, nor even any reply or reaction from other States, is required for th
e declaration to take effect, since such a requirement would be inconsistent wit
h the strictly unilateral nature of the juridical act by which the pronouncement
by the State was made.

44. Of course, not all unilateral acts imply obligation; but a State may choo
se to take up a certain position in relation to a particular matter with the int
ention of being bound?the intention is to be ascertained by interpretation of th
e act. When States make statements by which their freedom of action is to be lim
ited, a restrictive interpretation is called for.

x x x x

51. In announcing that the 1974 series of atmospheric tests would be the last
, the French Government conveyed to the world at large, including the Applicant,
its intention effectively to terminate these tests. It was bound to assume that
other States might take note of these statements and rely on their being effect
ive. The validity of these statements and their legal consequences must be consi
dered within the general framework of the security of international intercourse,
and the confidence and trust which are so essential in the relations among Stat
es. It is from the actual substance of these statements, and from the circumstan
ces attending their making, that the legal implications of the unilateral act mu
st be deduced. The objects of these statements are clear and they were addressed
to the international community as a whole, and the Court holds that they consti
tute an undertaking possessing legal effect. The Court considers *270 that the P
resident of the Republic, in deciding upon the effective cessation of atmospheri
c tests, gave an undertaking to the international community to which his words w
ere addressed. x x x (Emphasis and underscoring supplied)


As gathered from the above-quoted ruling of the ICJ, public statements
of a state representative may be construed as a unilateral declaration only whe
n the following conditions are present: the statements were clearly addressed to
the international community, the state intended to be bound to that community b
y its statements, and that not to give legal effect to those statements would be
detrimental to the security of international intercourse. Plainly, unilateral
declarations arise only in peculiar circumstances.

The limited applicability of the Nuclear Tests Case ruling was recogni
zed in a later case decided by the ICJ entitled Burkina Faso v. Mali,[183] also
known as the Case Concerning the Frontier Dispute. The public declaration subje
ct of that case was a statement made by the President of Mali, in an interview b
y a foreign press agency, that Mali would abide by the decision to be issued by
a commission of the Organization of African Unity on a frontier dispute then pen
ding between Mali and Burkina Faso.
Unlike in the Nuclear Tests Case, the ICJ held that the statement of Malifs Presi
dent was not a unilateral act with legal implications. It clarified that its ru
ling in the Nuclear Tests case rested on the peculiar circumstances surrounding
the French declaration subject thereof, to wit:

40. In order to assess the intentions of the author of a unilateral act, acco
unt must be taken of all the factual circumstances in which the act occurred. Fo
r example, in the Nuclear Tests cases, the Court took the view that since the ap
plicant States were not the only ones concerned at the possible continuance of a
tmospheric testing by the French Government, that Government's unilateral declar
ations had econveyed to the world at large, including the Applicant, its intentio
n effectively to terminate these testse (I.C.J. Reports 1974, p. 269, para. 51; p
. 474, para. 53). In the particular circumstances of those cases, the French Gov
ernment could not express an intention to be bound otherwise than by unilateral
declarations. It is difficult to see how it could have accepted the terms of a n
egotiated solution with each of the applicants without thereby jeopardizing its
contention that its conduct was lawful. The circumstances of the present case ar
e radically different. Here, there was nothing to hinder the Parties from manife
sting an intention to accept the binding character of the conclusions of the Org
anization of African Unity Mediation Commission by the normal method: a formal a
greement on the basis of reciprocity. Since no agreement of this kind was conclu
ded between the Parties, the Chamber finds that there are no grounds to interpre
t the declaration made by Mali's head of State on 11 April 1975 as a unilateral
act with legal implications in regard to the present case. (Emphasis and undersc
oring supplied)


Assessing the MOA-AD in light of the above criteria, it would not have amounted
to a unilateral declaration on the part of the Philippine State to the internati
onal community. The Philippine panel did not draft the same with the clear inte
ntion of being bound thereby to the international community as a whole or to any
State, but only to the MILF. While there were States and international organiz
ations involved, one way or another, in the negotiation and projected signing of
the MOA-AD, they participated merely as witnesses or, in the case of Malaysia,
as facilitator. As held in the Lome Accord case, the mere fact that in addition
to the parties to the conflict, the peace settlement is signed by representativ
es of states and international organizations does not mean that the agreement is
internationalized so as to create obligations in international law.

Since the commitments in the MOA-AD were not addressed to States, not to give le
gal effect to such commitments would not be detrimental to the security of inter
national intercourse ? to the trust and confidence essential in the relations am
ong States.

In one important respect, the circumstances surrounding the MOA-AD are closer to
that of Burkina Faso wherein, as already discussed, the Mali Presidentfs stateme
nt was not held to be a binding unilateral declaration by the ICJ. As in that
case, there was also nothing to hinder the Philippine panel, had it really been
its intention to be bound to other States, to manifest that intention by formal
agreement. Here, that formal agreement would have come about by the inclusion i
n the MOA-AD of a clear commitment to be legally bound to the international comm
unity, not just the MILF, and by an equally clear indication that the signatures
of the participating states-representatives would constitute an acceptance of t
hat commitment. Entering into such a formal agreement would not have resulted i
n a loss of face for the Philippine government before the international communit
y, which was one of the difficulties that prevented the French Government from e
ntering into a formal agreement with other countries. That the Philippine panel
did not enter into such a formal agreement suggests that it had no intention to
be bound to the international community. On that ground, the MOA-AD may not be
considered a unilateral declaration under international law.

The MOA-AD not being a document that can bind the Philippines under in
ternational law notwithstanding, respondentsf almost consummated act of guarantee
ing amendments to the legal framework is, by itself, sufficient to constitute gr
ave abuse of discretion. The grave abuse lies not in the fact that they conside
red, as a solution to the Moro Problem, the creation of a state within a state,
but in their brazen willingness to guarantee that Congress and the sovereign Fil
ipino people would give their imprimatur to their solution. Upholding such an a
ct would amount to authorizing a usurpation of the constituent powers vested onl
y in Congress, a Constitutional Convention, or the people themselves through the
process of initiative, for the only way that the Executive can ensure the outco
me of the amendment process is through an undue influence or interference with t
hat process.

The sovereign people may, if it so desired, go to the extent of giving up a port
ion of its own territory to the Moros for the sake of peace, for it can change t
he Constitution in any it wants, so long as the change is not inconsistent with
what, in international law, is known as Jus Cogens.[184] Respondents, however,
may not preempt it in that decision.


SUMMARY

The petitions are ripe for adjudication. The failure of respondents to consult
the local government units or communities affected constitutes a departure by re
spondents from their mandate under E.O. No. 3. Moreover, respondents exceeded
their authority by the mere act of guaranteeing amendments to the Constitution.
Any alleged violation of the Constitution by any branch of government is a prop
er matter for judicial review.

As the petitions involve constitutional issues which are of paramount
public interest or of transcendental importance, the Court grants the petitioner
s, petitioners-in-intervention and intervening respondents the requisite locus s
tandi in keeping with the liberal stance adopted in David v. Macapagal-Arroyo.

Contrary to the assertion of respondents that the non-signing of the M
OA-AD and the eventual dissolution of the GRP Peace Panel mooted the present pet
itions, the Court finds that the present petitions provide an exception to the gm
oot and academich principle in view of (a) the grave violation of the Constitutio
n involved; (b) the exceptional character of the situation and paramount public
interest; (c) the need to formulate controlling principles to guide the bench, t
he bar, and the public; and (d) the fact that the case is capable of repetition
yet evading review.

The MOA-AD is a significant part of a series of agreements necessary t
o carry out the GRP-MILF Tripoli Agreement on Peace signed by the government and
the MILF back in June 2001. Hence, the present MOA-AD can be renegotiated or a
nother one drawn up that could contain similar or significantly dissimilar provi
sions compared to the original.

The Court, however, finds that the prayers for mandamus have been rend
ered moot in view of the respondentsf action in providing the Court and the petit
ioners with the official copy of the final draft of the MOA-AD and its annexes.


The peoplefs right to information on matters of public concern under Se
c. 7, Article III of the Constitution is in splendid symmetry with the state pol
icy of full public disclosure of all its transactions involving public interest
under Sec. 28, Article II of the Constitution. The right to information guarant
ees the right of the people to demand information, while Section 28 recognizes t
he duty of officialdom to give information even if nobody demands. The complete
and effective exercise of the right to information necessitates that its comple
mentary provision on public disclosure derive the same self-executory nature, su
bject only to reasonable safeguards or limitations as may be provided by law.

The contents of the MOA-AD is a matter of paramount public concern inv
olving public interest in the highest order. In declaring that the right to inf
ormation contemplates steps and negotiations leading to the consummation of the
contract, jurisprudence finds no distinction as to the executory nature or comme
rcial character of the agreement.

An essential element of these twin freedoms is to keep a continuing dialogue or
process of communication between the government and the people. Corollary to th
ese twin rights is the design for feedback mechanisms. The right to public cons
ultation was envisioned to be a species of these public rights.

At least three pertinent laws animate these constitutional imperatives
and justify the exercise of the peoplefs right to be consulted on relevant matte
rs relating to the peace agenda.

One, E.O. No. 3 itself is replete with mechanics for continuing consul
tations on both national and local levels and for a principal forum for consensu
s-building. In fact, it is the duty of the Presidential Adviser on the Peace Pr
ocess to conduct regular dialogues to seek relevant information, comments, advic
e, and recommendations from peace partners and concerned sectors of society.

Two, Republic Act No. 7160 or the Local Government Code of 1991 requir
es all national offices to conduct consultations before any project or program c
ritical to the environment and human ecology including those that may call for t
he eviction of a particular group of people residing in such locality, is implem
ented therein. The MOA-AD is one peculiar program that unequivocally and unilat
erally vests ownership of a vast territory to the Bangsamoro people, which could
pervasively and drastically result to the diaspora or displacement of a great n
umber of inhabitants from their total environment.

Three, Republic Act No. 8371 or the Indigenous Peoples Rights Act of 1
997 provides for clear-cut procedure for the recognition and delineation of ance
stral 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 governmen
t agency the power to delineate and recognize an ancestral domain claim by mere
agreement or compromise.

The invocation of the doctrine of executive privilege as a defense to
the general right to information or the specific right to consultation is untena
ble. The various explicit legal provisions fly in the face of executive secrecy
. In any event, respondents effectively waived such defense after it unconditio
nally disclosed the official copies of the final draft of the MOA-AD, for judici
al compliance and public scrutiny.

IN SUM, the Presidential Adviser on the Peace Process committed grave
abuse of discretion when he failed to carry out the pertinent consultation proce
ss, as mandated by E.O. No. 3, Republic Act No. 7160, and Republic Act No. 8371.
The furtive process by which the MOA-AD was designed and crafted runs contrary
to and in excess of the legal authority, and amounts to a whimsical, capricious
, oppressive, arbitrary and despotic exercise thereof. It illustrates a gross e
vasion of positive duty and a virtual refusal to perform the duty enjoined.

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 uncon
stitutional, for the concept presupposes that the associated entity is a state a
nd implies that the same is on its way to independence.

While there is a clause in the MOA-AD stating that the provisions ther
eof inconsistent with the present legal framework will not be effective until th
at framework is amended, the same does not cure its defect. The inclusion of pr
ovisions in the MOA-AD establishing an associative relationship between the BJE
and the Central Government is, itself, a violation of the Memorandum of Instruct
ions From The President dated March 1, 2001, addressed to the government peace p
anel. Moreover, as the clause is worded, it virtually guarantees that the neces
sary 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 s
uch 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 th
at the Executive can ensure the outcome of the amendment process is through an u
ndue influence or interference with that process.

While the MOA-AD would not amount to an international agreement or unilateral de
claration binding on the Philippines under international law, respondentsf act of
guaranteeing amendments is, by itself, already a constitutional violation that
renders the MOA-AD fatally defective.

WHEREFORE, respondentsf motion to dismiss is DENIED. The main and intervening pe
titions are GIVEN DUE COURSE and hereby GRANTED.

The Memorandum of Agreement on the Ancestral Domain Aspect of the GRP-MILF Tripo
li Agreement on Peace of 2001 is declared CONTRARY TO LAW AND THE CONSTITUTION.

SO ORDERED.


CONCHITA CARPIO MORA
LES
Associate Jus
tice





WE CONCUR:





REYNATO S. PUNO
Chief Justice




LEONARDO A. QUISUMBING
Associate Justice




ANTONIO T. CARPIO
Associate Justice
CONSUELO YNARES- SANTIAGO
Associate Justice




MA. ALICIA AUSTRIA-MARTINEZ
Associate Justice





RENATO C. CORONA
Associate Justice





ADOLFO S. AZCUNA
Associate Justice





DANTE O. TINGA
Associate Justice





PRESBITERO J. VELASCO, JR.
Associate Justice





MINITA V. CHICO-NAZARIO
Associate Justice





ANTONIO EDUARDO B. NACHURA
Associate Justice







RUBEN T. REYES
Associate Justice









TERESITA J. LEONARDO-DE CASTRO
Associate Justice




ARTURO D. BRION
Associate Justice



CERTIFICATION


Pursuant to Article VIII, Section 13 of the Constitution, I certify th
at the conclusions in the above Decision had been reached in consultation before
the case was assigned to the writer of the opinion of the Court.



REYNATO S. PUNO
Chief Justice
[1] Eric Gutierrez and Abdulwahab Guialal, THE UNFINISHED JIHAD: THE MORO
ISLAMIC LIBERATION FRONT AND PEACE IN MINDANAO IN REBELS, WARLORDS AND ULAMA: A
READER ON MUSLIM SEPARATISM AND THE WAR IN SOUTHERN PHILIPPINES 275 (1999).
[2] Memorandum of Respondents dated September 24, 2008, p. 10.
[3] Memorandum of Respondents dated September 24, 2008, pp. 10-11.
[4] Vide Salah Jubair, THE LONG ROAD TO PEACE: INSIDE THE GRP-MILF PEACE P
ROCESS 35-36 (2007).
[5] Memorandum of Respondents dated September 24, 2008, p. 12.
[6] Vide Salah Jubair, THE LONG ROAD TO PEACE: INSIDE THE GRP-MILF PEACE P
ROCESS 40-41 (2007).
[7] Composed of its Chairperson, Sec. Rodolfo Garcia, and members, Atty. L
eah Armamento, Atty. Sedfrey Candelaria, with Mark Ryan Sullivan as Secretariat
head.
[8] Represented by Governor Jesus Sacdalan and/or Vice-Governor Emmanuel P
inol.
[9] Rollo (G.R. No. 183591), pp. 3-33.
[10] Supplement to Petition (with motion for leave) of August 11, 2008, roll
o (G.R. No. 183591), pp. 143-162.
[11] Rollo (G.R. No. 183752), pp. 3-28.
[12] Represented by Mayor Celso L. Lobregat.
[13] Rollo (G.R. No. 183591), pp. 132-135; rollo (G.R. No. 183752), pp. 68-7
1.
[14] Rollo (G.R. No. 183591), pp. 130-131; rollo (G.R. No. 183752), pp. 66-6
7.
[15] Rollo (G.R. No. 183752), pp. 173-246.
[16] Represented by Mayor Lawrence Lluch Cruz.
[17] Represented by Governor Rolando Yebes.
[18] Namely, Seth Frederick Jaloslos, Fernando Cabigon, Jr., Uldarico Mejora
da II, Edionar Zamoras, Edgar Baguio, Cedric Adriatico, Felixberto Bolando, Jose
ph Brendo Ajero, Norbideiri Edding, Anecito Darunday, Angelica Carreon, and Luzv
iminda Torrino.
[19] Rollo (G.R. No. 183951), pp. 3-33.
[20] Rollo (G.R. No. 183962), pp. 3- 20.
[21] Represented by Mayor Cherrylyn Santos-Akbar.
[22] Represented by Gov. Suharto Mangudadatu.
[23] Represented by Mayor Noel Deano.
[24] Rollo (G.R. No. 183591), pp. 451-453.
[25] R.A. No. 6734, as amended by R.A. 9054 entitled AN ACT TO STRENGTHEN AN
D EXPAND THE ORGANIC ACT FOR THE AUTONOMOUS REGION IN MUSLIM MINDANAO, AMENDING
FOR THE PURPOSE REPUBLIC ACT NO. 6734, ENTITLED AN ACT OF PROVIDING FOR THE AUT
ONOMOUS REGION IN MUSLIM MINDANAO, AS AMENDED.
[26] R.A. No. 8371, AN ACT TO RECOGNIZE, PROTECT AND PROMOTE THE RIGHTS OF I
NDIGENOUS CULTURAL COMMUNITIES/INDIGENOUS PEOPLES, CREATING A NATIONAL COMMISSIO
N ON INDIGENOUS PEOPLES, ESTABLISHING IMPLEMENTING MECHANISMS, APPROPRIATING FUN
DS THEREFOR, AND FOR OTHER PURPOSES, October 29, 1997.
[27] Cesar Adib Majul, THE GENERAL NATURE OF ISLAMIC LAW AND ITS APPLICATION
IN THE PHILIPPINES, lecture delivered as part of the Ricardo Paras Lectures, a
series jointly sponsored by the Commission on Bar Integration of the Supreme Cou
rt, the Integrated Bar of the Philippines and the U.P. Law Center, September 24,
1977.
[28] Ibid., vide M.A. Muqtedar Khan Ph.D., IMMIGRANT AMERICAN MUSLIMS AND TH
E MORAL DILEMMAS OF CITIZENSHIP, http://www.islamfortoday.com/khan04.htm, visite
d on September 18, 2008, and Syed Shahabuddin, MUSLIM WORLD AND THE CONTEMPORAR
Y IJMA' ON RULES OF GOVERNANCE - II, http://www.milligazette.com/Archives/2004/0
1-15May04-Print-Edition/0105200471.htm, visited on September 18, 2008.
[29] MOA-AD Terms of Reference.
[30] MOA-AD, Concepts and Principles, par. 1.
[31] A traditional Muslim historical account of the acts of Shariff Kabungsu
wan is quoted by historian Cesar Adib Majul in his book, MUSLIMS IN THE PHILIPPI
NES (1973):

After a time it came to pass that Mamalu, who was the chief man next to Kabungsu
wan, journeyed to Cotabato. He found there that many of the people had ceased t
o regard the teachings of the Koran and had fallen into evil ways. Mamamlu sent
to Kabungsuwan word of these things.
Kabungsuwan with a portion of his warriors went from Malabang to Cotabato and fo
und that the word sent to him by Mamamlu was true. Then he assembled together a
ll the people. Those of them, who had done evilly and disregarded the teachings
of the Koran thenceforth, he drove out of the town into the hills, with their w
ives and children.
Those wicked one who were thus cast out were the beginnings of the tribes of the
Tirurais and Manobos, who live to the east of Cotabato in the country into whic
h their evil forefathers were driven. And even to this day they worship not God
; neither do they obey the teachings of the Koran . . . But the people of Kabu
ngsuwan, who regarded the teachings of the Koran and lived in fear of God, prosp
ered and increased, and we Moros of today are their descendants. (Citation omit
ted, emphasis supplied).

[32] Id., par. 2.
[33] Id., par. 3.
[34] Id., par. 4.
[35] Francisco L. Gonzales, SULTANS OF A VIOLENT LAND, in Rebels, Warlords a
nd Ulama: A Reader on Muslim Separatism and the War in Southern Philippines 99,
103 (1999).
[36] The Charter of the Assembly of First Nations, the leading advocacy grou
p for the indigenous peoples of Canada, adopted in 1985, begins thus:
gWE THE CHIEFS OF THE INDIAN FIRST NATIONS IN CANADA HAVING DECLARED:
THAT our peoples are the original peoples of this land having been put here by
the Creator; x x x.h
[37] Id., par. 6.
[38] MOA-AD, Territory, par. 1.
[39] Id., par. 2(c).
[40] Id., par. 2(d).
[41] Id., par. 2(e).
[42] Id., par. 2(f).
[43] Id., par, 2(g)(1).
[44] Id., par. 2(h).
[45] Id., par. 2(i).
[46] MOA-AD, Resources, par. 4.
[47] Ibid.
[48] Id., par. 5.
[49] Id., par. 6.
[50] Id., par. 7.
[51] Id., par. 9.
[52] MOA-AD, Governance, par. 3.
[53] gIN WITNESS WHEREOF, the undersigned, being the representatives of the P
arties[,] hereby affix their signatures.h
[54] Vide 1987 CONSTITUTION, Article VIII, Section 1.
[55] Vide Muskrat v. US, 219 US 346 (1911).
[56] Flast v. Cohen, 88 S.Ct. 1942, 1950 (1968).
[57] Didipio Earth Saversf Multi-Purpose Association, Incorporated (DESAMA) v
. Gozun, G.R. No. 157882, March 30, 2006, 485 SCRA 286.
[58] Vide U.S. v. Muskrat, 219 U.S. 346, 357 (1902).
[59] Guingona, Jr. v. Court of Appeals, 354 Phil. 415, 427-428 (1998).
[60] Francisco, Jr. v. House of Representatives, 460 Phil. 830, 901-902 (200
3) (citation omitted).
[61] Vide Warth v. Seldin, 422 US 490, 511 (1975).
[62] Vide id. at 526.
[63] Solicitor Generalfs Comment to G.R. No. 183752, pp. 9-11.
[64] MOA-AD, pp. 3-7, 10.
[65] 391 Phil. 43 (2000).
[66] Id. at 107-108.
[67] 530 US 290 (2000).
[68] Id. at 292.
[69] 505 U.S. 144 (1992).
[70] Id. at 175.
[71] Although only one petition is denominated a petition for certiorari, mo
st petitions pray that the MOA-AD be declared unconstitutional/null and void.
[72] Vide RULES OF COURT, Rule 65, Secs. 1 and 2.
[73] Vide RULES OF COURT, Rule 65, Sec. 3.
[74] Tanada v. Angara, 338 Phil. 546, 575 (1997).
[75] Entitled DEFINING POLICY AND ADMINISTRATIVE STRUCTURE FOR GOVERNMENTfS P
EACE EFFORTS which reaffirms and reiterates Executive Order No. 125 of September
15, 1993.
[76] E.O. No. 3, (2001), Sec. 1.
[77] Vide Tanada v. Angara, supra note 74.
[78] Baker v. Carr, 369 U.S. 186 (1962).
[79] Vicente V. Mendoza , JUDICIAL REVIEW OF CONSTITUTIONAL QUESTIONS 137 (2
004).
[80] Francisco, Jr. v. The House of Representatives, 460 Phil. 830, 896 (200
3).
[81] David v. Macapagal-Arroyo, G.R. No. 171396, May 3, 2006, 489 SCRA 160,
223.
[82] Kilosbayan, Inc. v. Morato, 320 Phil. 171 (1995).
[83] Macasiano v. NHA, G.R. No. 107921, July 1, 1993, 224 SCRA 236.
[84] Del Mar v. Phil. Amusement and Gaming Corp., 400 Phil. 307, 328-329 (20
00) citing Phil. Constitution Assfn., Inc. v. Mathay, et al., 124 Phil. 890 (1966
).
[85] Vide NAACP v. Alabama, 357 U.S. 449 (1958).
[86] Francisco, Jr. v. The House of Representatives, supra note 80.
[87] Province of Batangas v. Romulo, G.R. No. 152774, May 27, 2004, 429 SCRA
736.
[88] Firestone Ceramics, Inc. v. Court of Appeals, 372 Phil. 401 (1999) citi
ng Gibson v. Judge Revilla, 180 Phil. 645 (1979).
[89] Supra note 81.
[90] Integrated Bar of the Phils. v. Hon. Zamora, 392 Phil. 618 (2000).
[91] Tatad v. Secretary of Energy, 346 Phil. 321 (1997).
[92] Vide Compliance of September 1, 2008 of respondents.
[93] Vide Manifestation of September 4, 2008 of respondents.
[94] Supra note 81.
[95] Id. citing Province of Batangas v. Romulo, supra note 87.
[96] Id. citing Lacson v. Perez, 410 Phil. 78 (2001).
[97] Id. citing Province of Batangas v. Romulo, supra note 87.
[98] Id. citing Albana v. Comelec, 478 Phil. 941 (2004); Chief Supt. Acop v
. Guingona Jr., 433 Phil. 62 (2002); SANLAKAS v. Executive Secretary Reyes, 466
Phil. 482 (2004).
[99] US v. W.T. Grant Co., 345 U.S. 629 (1953); US v. Trans-Missouri Freight
Assn, 166 U.S. 290, 308-310 (1897); Walling v. Helmerich & Payne, Inc., 323 U.
S. 37, 43 (1944); Gray v. Sanders, 372 U.S. 368, 376 (1963); Defunis v. Odegaar
d, 416 U.S. 312 (1974).
[100] Supra note 87.
[101] G.R. No. 178920, October 15, 2007, 536 SCRA 290.
[102] Chavez v. PCGG, 366 Phil. 863, 871 (1999).
[103] G.R. No. 178830, July 14, 2008.
[104] Supra note 98.
[105] Ortega v. Quezon City Government, G.R. No. 161400, September 2, 2005, 4
69 SCRA 388.
[106] Alunan III v. Mirasol, 342 Phil. 476 (1997); Viola v. Alunan III, 343
Phil. 184 (1997); Chief Superintendent Acop v. Guingona, Jr., supra note 98; R
oble Arrastre, Inc. v. Villaflor, G.R. No. 128509, August 22, 2006, 499 SCRA 434
, 447.
[107] CONSTITUTION, Article III, Sec. 7.
[108] 80 Phil. 383 (1948).
[109] Legaspi v. Civil Service Commission, G.R. No. L-72119, May 29, 1987, 15
0 SCRA 530.
[110] 162 Phil. 868 (1976).
[111] Baldoza v. Dimaano, supra at 876.
[112] Legaspi v. Civil Service Commission, supra note 109.
[113] Chavez v. PCGG, 360 Phil 133, 164 (1998).
[114] In Legaspi v. Civil Service Commission, supra note 109 at 541, it was h
eld that:
In determining whether or not a particular information is of public concern ther
e is no rigid test which can be applied. `Public concern' like `public interest'
is a term that eludes exact definition. Both terms embrace a broad spectrum of
subjects which the public may want to know, either because these directly affect
their lives, or simply because such matters naturally arouse the interest of an
ordinary citizen. In the final analysis, it is for the courts to determine on a
case by case basis whether the matter at issue is of interest or importance, as
it relates to or affects the public.
[115] Respondentsf Comment of August 4, 2008, p. 9.
[116] Subido v. Ozaeta, supra note 108.
[117] Tanada, et al. v. Hon. Tuvera, et al., 220 Phil. 422 (1985); Tanada, v
. Hon. Tuvera, 230 Phil. 528 (1986).
[118] Legaspi v. Civil Service Commission, supra note 109.
[119] Valmonte v. Belmonte, Jr., G.R. No. 74930, February 13, 1989, 170 SCRA
256.
[120] Chavez v. PCGG, supra note 113; Chavez v. PCGG, supra note 102.
[121] Bantay Republic Act or BA-RA 7941 v. Commission on Elections, G.R. 1772
71, May 4, 2007, 523 SCRA 1.
[122] Chavez v. Public Estates Authority, 433 Phil. 506, 532-533 (2002).
[123] Vide V RECORD, CONSTITUTIONAL COMMISSION 26-28 (September 24, 1986) whi
ch is replete with such descriptive phrase used by Commissioner Blas Ople.
[124] CONSTITUTION, Article II, Sec. 28.
[125] Bernas, Joaquin, THE 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPIN
ES: A COMMENTARY 100 (2003).
[126] Vide Bernas, Joaquin, THE INTENT OF THE 1986 CONSTITUTION WRITERS 155 (
1995).
[127] Vide Chavez v. Public Estates Authority, supra note 122.
[128] V RECORD, CONSTITUTIONAL COMMISSION 25 (September 24, 1986).
[129] V RECORD, CONSTITUTIONAL COMMISSION 28-29 (September 24, 1986). The ph
rase gsafeguards on national interesth that may be provided by law was subsequentl
y replaced by greasonable conditions,h as proposed by Commissioner Davide [vide V
RECORD, CONSTITUTIONAL COMMISSION 30 (September 24, 1986)].
[130] In Chavez v. National Housing Authority, G.R. No. 164527, August 15, 20
07, 530 SCRA 235, 331, the Court stated:
x x x The duty to disclose covers only transactions involving public interest, w
hile the duty to allow access has a broader scope of information which embraces
not only transactions involving public interest, but any matter contained in off
icial communications and public documents of the government agency. (Underscori
ng supplied)
[131] Valmonte v. Belmonte, Jr., supra note 119.
[132] V RECORD, CONSTITUTIONAL COMMISSION 28, 30 (September 24, 1986).
[133] Supra note 55.
[134] EXECUTIVE ORDER No. 3 (2001), Sec. 3 (a).
[135] EXECUTIVE ORDER No. 3 (2001), Sec. 4 (b).
[136] Respondentsf Memorandum of September 24, 2008, p. 44.
[137] EXECUTIVE ORDER No. 3 (2001), Sec. 5 (b), par. 6.
[138] EXECUTIVE ORDER No. 3 (2001), Sec. 8, see also Sec. 10.
[139] Cf. Garcia v. Board of Investments, G.R. No. 88637, September 7, 1989,
177 SCRA 374, 382-384 where it was held that the Omnibus Investment Code of 1987
mandates the holding of consultations with affected communities, whenever neces
sary, on the acceptability of locating the registered enterprise within the comm
unity.
[140] In their Memorandum, respondents made allegations purporting to show th
at consultations were conducted on August 30, 2001 in Marawi City and Iligan Cit
y, on September 20, 2001 in Midsayap, Cotabato, and on January 18-19, 2002 in Me
tro Manila. (Memorandum of September 24, 2008, p. 13)
[141] Cf. Chavez v. Public Estates Authority, supra note 120.
[142] REPUBLIC ACT No. 7160, Sec. 2(c).
[143] REPUBLIC ACT No. 7160, Sec. 27.
[144] 416 Phil. 438 (2001).
[145] Id.; vide Alvarez v. PICOP Resources, Inc., G.R. No. 162243, November
29, 2006, 508 SCRA 498; Cf. Bangus Fry Fisherfolk v. Lanzanas, 453 Phil. 479 (20
02).
[146] Vide MOA-AD gConcepts and Principles,h pars. 2 & 7 in relation to gResourc
es,h par. 9 where vested property rights are made subject to the cancellation, mo
dification and review by the Bangsamoro Juridical Entity.
[147] REPUBLIC ACT No. 8371 or gTHE INDIGENOUS PEOPLES RIGHTS ACT OF 1997,h Sec
. 16.
[148] Id., Sec. 3 (g), Chapter VIII, inter alia.
[149] Tanada v. Tuvera, No. L-63915, December 29, 1986, 146 SCRA 446, 456.
[150] C.I. Keitner and W.M. Reisman, FREE ASSOCIATION: THE UNITED STATES EXP
ERIENCE, 39 Tex. Int'l L.J. 1 (2003).
[151] gThe former Trust Territory of the Pacific Islands is made up of the Car
oline Islands, the Marshall Islands, and the Northern Mariana Islands, which ext
end east of the Philippines and northeast of Indonesia in the North Pacific Ocea
n.h (Ibid.)
[152] H. Hills, FREE ASSOCIATION FOR MICRONESIA AND THE MARSHALL ISLANDS: A
POLITICAL STATUS MODEL, 27 U. Haw. L. Rev. 1 (2004).
[153] Henkin, et al., INTERNATIONAL LAW: CASES AND MATERIALS, 2nd ed., 274 (1
987).
[154] Convention on Rights and Duties of States, Dec. 26, 1933, 49 Stat. 3097
, 165 L.N.T.S. 19.
[155] G.R. No. 158088, July 6, 2005, 462 SCRA 622, 632.
[156] AN ACT TO STRENGTHEN AND EXPAND THE ORGANIC ACT FOR THE AUTONOMOUS REGI
ON IN MUSLIM MINDANAO, AMENDING FOR THE PURPOSE REPUBLIC ACT NO. 6734, ENTITLED e
AN ACT PROVIDING FOR THE AUTONOMOUS REGION IN MUSLIM MINDANAO,f AS AMENDED, March
31, 2001.
[157] AN ACT TO RECOGNIZE, PROTECT AND PROMOTE THE RIGHTS OF INDIGENOUS CULTURAL
COMMUNITIES/INDIGENOUS PEOPLES, CREATING A NATIONAL COMMISSION ON INDIGENOUS PE
OPLES, ESTABLISHING IMPLEMENTING MECHANISMS, APPROPRIATING FUNDS THEREFOR, AND F
OR OTHER PURPOSES, October 29, 1997.
[158] 90 Phil. 70, 73-74 (1951).
[159] 177 Phil. 160, 178-179 (1979).
[160] 2 S.C.R. 217 (1998).
[161] 999 U.N.T.S. 171 (March 23, 1976).
[162] 993 U.N.T.S. 3 (January 3, 1976).
[163] League of Nations Official Journal, Special Supp. No. 3 (October 1920).
[164] Lorie M. Graham, RESOLVING INDIGENOUS CLAIMS TO SELF-DETERMINATION, 10
ILSA J. Int'l & Comp. L. 385 (2004). Vide S. James Anaya, SUPERPOWER ATTITUDES T
OWARD INDIGENOUS PEOPLES AND GROUP RIGHTS, 93 Am. Soc'y Int'l L. Proc. 251 (1999
): gIn general, the term indigenous is used in association with groups that main
tain a continuity of cultural identity with historical communities that suffered
some form of colonial invasion, and that by virtue of that continuity of cultur
al identity continue to distinguish themselves from others.h
[165] Catherine J. Iorns, INDIGENOUS PEOPLES AND SELF DETERMINATION: CHALLENG
ING STATE SOVEREIGNTY, 24 Case W. Res. J. Int'l L. 199 (1992).
[166] Federico Lenzerini, gSOVEREIGNTY REVISITED: INTERNATIONAL LAW AND PARALL
EL SOVEREIGNTY OF INDIGENOUS PEOPLES,h 42 Tex. Int'l L.J. 155 (2006). Vide Chris
topher J. Fromherz, INDIGENOUS PEOPLES' COURTS: EGALITARIAN JURIDICAL PLURALISM,
SELF-DETERMINATION, AND THE UNITED NATIONS DECLARATION ON THE RIGHTS OF INDIGEN
OUS PEOPLES, 156 U. Pa. L. Rev. 1341 (2008): gWhile Australia and the United Stat
es made much of the distinction between eself-governmentf and eself-determinationf o
n September 13, 2007, the U.S. statement to the UN on May 17, 2004, seems to use
these two concepts interchangeably. And, indeed, under the DRIP [Declaration on
the Rights of Indigenous Peoples], all three terms should be considered virtual
ly synonymous. Self-determination under the DRIP means einternal self-determinati
onf when read in conjunction with Article 46, and eself-government,f articulated in
Article 4, is the core of the eself-determination.fh

[167] DEFINING THE APPROACH AND ADMINISTRATIVE STRUCTURE FOR GOVERNMENTfS COMP
REHENSIVE PEACE EFFORTS, September 15, 1993.
[168] 466 Phil. 482, 519-520 (2004).
[169] CONSTITUTION, Article VII, Sec. 18.
[170] Kirsti Samuels, POST-CONFLICT PEACE-BUILDING AND CONSTITUTION-MAKING, 6
Chi. J. Int'l L. 663 (2006).
[171] Christine Bell, PEACE AGREEMENTS: THEIR NATURE AND LEGAL STATUS, 100 Am
. J. Int'l L. 373 (2006).
[172] CONSTITUTION, Article X, Sections 15-21.
[173] III Record, Constitutional Commission, 180 (August 11, 1986).
[174] 165 Phil. 303 (1976).
[175] Id. at 412.
[176] Id. at 413.
[177] G.R. No. 174153, October 25, 2006, 505 SCRA 160, 264-265.
[178] CONSTITUTION, Art. VII, Sec. 5.
[179] Article VI, Section 25 (1) of the Constitution states as follows: gThe C
ongress may not increase the appropriations recommended by the President for the
operation of the Government as specified in the budget. The form, content, and
manner of preparation of the budget shall be prescribed by law.h
[180] Prosecutor v. Kallon and Kamara [Case No. SCSL-2004-15-AR72(E), SCSL-20
04-16-AR72(E), March 13, 2004].
[181] 1974 I.C.J. 253, 1974 WL 3 (I.C.J.).
[182] M. Janis and J. Noyes, INTERNATIONAL LAW, CASES AND COMMENTARY, 3rd ed.
280 (2006).
[183] 1986 I.C.J. 554, 1986 WL 15621 (I.C.J.), December 22, 1986.
[184] Planas v. COMELEC, 151 Phil. 217, 249 (1973).
3. Republic of the Philippines
SUPREME COURT
Manila
EN BANC

G.R. No. 101949 December 1, 1994
THE HOLY SEE, petitioner,
vs.
THE HON. ERIBERTO U. ROSARIO, JR., as Presiding Judge of the Regional Trial Cour
t of Makati, Branch 61 and STARBRIGHT SALES ENTERPRISES, INC., respondents.
Padilla Law Office for petitioner.
Siguion Reyna, Montecillo & Ongsiako for private respondent.

QUIASON, J.:
This is a petition for certiorari under Rule 65 of the Revised Rules of Court to
reverse and set aside the Orders dated June 20, 1991 and September 19, 1991 of
the Regional Trial Court, Branch 61, Makati, Metro Manila in Civil Case No. 90-1
83.
The Order dated June 20, 1991 denied the motion of petitioner to dismiss the com
plaint in Civil Case No. 90-183, while the Order dated September 19, 1991 denied
the motion for reconsideration of the June 20,1991 Order.
Petitioner is the Holy See who exercises sovereignty over the Vatican City in Ro
me, Italy, and is represented in the Philippines by the Papal Nuncio.
Private respondent, Starbright Sales Enterprises, Inc., is a domestic corporatio
n engaged in the real estate business.
This petition arose from a controversy over a parcel of land consisting of 6,000
square meters (Lot 5-A, Transfer Certificate of Title No. 390440) located in th
e Municipality of Paranaque, Metro Manila and registered in the name of petition
er.
Said Lot 5-A is contiguous to Lots 5-B and 5-D which are covered by Transfer Cer
tificates of Title Nos. 271108 and 265388 respectively and registered in the nam
e of the Philippine Realty Corporation (PRC).
The three lots were sold to Ramon Licup, through Msgr. Domingo A. Cirilos, Jr.,
acting as agent to the sellers. Later, Licup assigned his rights to the sale to
private respondent.
In view of the refusal of the squatters to vacate the lots sold to private respo
ndent, a dispute arose as to who of the parties has the responsibility of evicti
ng and clearing the land of squatters. Complicating the relations of the parties
was the sale by petitioner of Lot 5-A to Tropicana Properties and Development C
orporation (Tropicana).
I
On January 23, 1990, private respondent filed a complaint with the Regional Tria
l Court, Branch 61, Makati, Metro Manila for annulment of the sale of the three
parcels of land, and specific performance and damages against petitioner, repres
ented by the Papal Nuncio, and three other defendants: namely, Msgr. Domingo A.
Cirilos, Jr., the PRC and Tropicana (Civil Case No.
90-183).
The complaint alleged that: (1) on April 17, 1988, Msgr. Cirilos, Jr., on behalf
of petitioner and the PRC, agreed to sell to Ramon Licup Lots 5-A, 5-B and 5-D
at the price of P1,240.00 per square meters; (2) the agreement to sell was made
on the condition that earnest money of P100,000.00 be paid by Licup to the selle
rs, and that the sellers clear the said lots of squatters who were then occupyin
g the same; (3) Licup paid the earnest money to Msgr. Cirilos; (4) in the same m
onth, Licup assigned his rights over the property to private respondent and info
rmed the sellers of the said assignment; (5) thereafter, private respondent dema
nded from Msgr. Cirilos that the sellers fulfill their undertaking and clear the
property of squatters; however, Msgr. Cirilos informed private respondent of th
e squatters' refusal to vacate the lots, proposing instead either that private r
espondent undertake the eviction or that the earnest money be returned to the la
tter; (6) private respondent counterproposed that if it would undertake the evic
tion of the squatters, the purchase price of the lots should be reduced from P1,
240.00 to P1,150.00 per square meter; (7) Msgr. Cirilos returned the earnest mon
ey of P100,000.00 and wrote private respondent giving it seven days from receipt
of the letter to pay the original purchase price in cash; (8) private responden
t sent the earnest money back to the sellers, but later discovered that on March
30, 1989, petitioner and the PRC, without notice to private respondent, sold th
e lots to Tropicana, as evidenced by two separate Deeds of Sale, one over Lot 5-
A, and another over Lots 5-B and 5-D; and that the sellers' transfer certificate
of title over the lots were cancelled, transferred and registered in the name o
f Tropicana; (9) Tropicana induced petitioner and the PRC to sell the lots to it
and thus enriched itself at the expense of private respondent; (10) private res
pondent demanded the rescission of the sale to Tropicana and the reconveyance of
the lots, to no avail; and (11) private respondent is willing and able to compl
y with the terms of the contract to sell and has actually made plans to develop
the lots into a townhouse project, but in view of the sellers' breach, it lost p
rofits of not less than P30,000.000.00.
Private respondent thus prayed for: (1) the annulment of the Deeds of Sale betwe
en petitioner and the PRC on the one hand, and Tropicana on the other; (2) the r
econveyance of the lots in question; (3) specific performance of the agreement t
o sell between it and the owners of the lots; and (4) damages.
On June 8, 1990, petitioner and Msgr. Cirilos separately moved to dismiss the co
mplaint ? petitioner for lack of jurisdiction based on sovereign immunity from s
uit, and Msgr. Cirilos for being an improper party. An opposition to the motion
was filed by private respondent.
On June 20, 1991, the trial court issued an order denying, among others, petitio
ner's motion to dismiss after finding that petitioner "shed off [its] sovereign
immunity by entering into the business contract in question" (Rollo, pp. 20-21).
On July 12, 1991, petitioner moved for reconsideration of the order. On August 3
0, 1991, petitioner filed a "Motion for a Hearing for the Sole Purpose of Establ
ishing Factual Allegation for claim of Immunity as a Jurisdictional Defense." So
as to facilitate the determination of its defense of sovereign immunity, petiti
oner prayed that a hearing be conducted to allow it to establish certain facts u
pon which the said defense is based. Private respondent opposed this motion as w
ell as the motion for reconsideration.
On October 1, 1991, the trial court issued an order deferring the resolution on
the motion for reconsideration until after trial on the merits and directing pet
itioner to file its answer (Rollo, p. 22).
Petitioner forthwith elevated the matter to us. In its petition, petitioner invo
kes the privilege of sovereign immunity only on its own behalf and on behalf of
its official representative, the Papal Nuncio.
On December 9, 1991, a Motion for Intervention was filed before us by the Depart
ment of Foreign Affairs, claiming that it has a legal interest in the outcome of
the case as regards the diplomatic immunity of petitioner, and that it "adopts
by reference, the allegations contained in the petition of the Holy See insofar
as they refer to arguments relative to its claim of sovereign immunity from suit
" (Rollo, p. 87).
Private respondent opposed the intervention of the Department of Foreign Affairs
. In compliance with the resolution of this Court, both parties and the Departme
nt of Foreign Affairs submitted their respective memoranda.
II
A preliminary matter to be threshed out is the procedural issue of whether the p
etition for certiorari under Rule 65 of the Revised Rules of Court can be availe
d of to question the order denying petitioner's motion to dismiss. The general r
ule is that an order denying a motion to dismiss is not reviewable by the appell
ate courts, the remedy of the movant being to file his answer and to proceed wit
h the hearing before the trial court. But the general rule admits of exceptions,
and one of these is when it is very clear in the records that the trial court h
as no alternative but to dismiss the complaint (Philippine National Bank v. Flor
endo, 206 SCRA 582 [1992]; Zagada v. Civil Service Commission, 216 SCRA 114 [199
2]. In such a case, it would be a sheer waste of time and energy to require the
parties to undergo the rigors of a trial.
The other procedural question raised by private respondent is the personality or
legal interest of the Department of Foreign Affairs to intervene in the case in
behalf of the Holy See (Rollo, pp. 186-190).
In Public International Law, when a state or international agency wishes to plea
d sovereign or diplomatic immunity in a foreign court, it requests the Foreign O
ffice of the state where it is sued to convey to the court that said defendant i
s entitled to immunity.
In the United States, the procedure followed is the process of "suggestion," whe
re the foreign state or the international organization sued in an American court
requests the Secretary of State to make a determination as to whether it is ent
itled to immunity. If the Secretary of State finds that the defendant is immune
from suit, he, in turn, asks the Attorney General to submit to the court a "sugg
estion" that the defendant is entitled to immunity. In England, a similar proced
ure is followed, only the Foreign Office issues a certification to that effect i
nstead of submitting a "suggestion" (O'Connell, I International Law 130 [1965];
Note: Immunity from Suit of Foreign Sovereign Instrumentalities and Obligations,
50 Yale Law Journal 1088 [1941]).
In the Philippines, the practice is for the foreign government or the internatio
nal organization to first secure an executive endorsement of its claim of sovere
ign or diplomatic immunity. But how the Philippine Foreign Office conveys its en
dorsement to the courts varies. In International Catholic Migration Commission v
. Calleja, 190 SCRA 130 (1990), the Secretary of Foreign Affairs just sent a let
ter directly to the Secretary of Labor and Employment, informing the latter that
the respondent-employer could not be sued because it enjoyed diplomatic immunit
y. In World Health Organization v. Aquino, 48 SCRA 242 (1972), the Secretary of
Foreign Affairs sent the trial court a telegram to that effect. In Baer v. Tizon
, 57 SCRA 1 (1974), the U.S. Embassy asked the Secretary of Foreign Affairs to r
equest the Solicitor General to make, in behalf of the Commander of the United S
tates Naval Base at Olongapo City, Zambales, a "suggestion" to respondent Judge.
The Solicitor General embodied the "suggestion" in a Manifestation and Memorand
um as amicus curiae.
In the case at bench, the Department of Foreign Affairs, through the Office of L
egal Affairs moved with this Court to be allowed to intervene on the side of pet
itioner. The Court allowed the said Department to file its memorandum in support
of petitioner's claim of sovereign immunity.
In some cases, the defense of sovereign immunity was submitted directly to the l
ocal courts by the respondents through their private counsels (Raquiza v. Bradfo
rd, 75 Phil. 50 [1945]; Miquiabas v. Philippine-Ryukyus Command, 80 Phil. 262 [1
948]; United States of America v. Guinto, 182 SCRA 644 [1990] and companion case
s). In cases where the foreign states bypass the Foreign Office, the courts can
inquire into the facts and make their own determination as to the nature of the
acts and transactions involved.
III
The burden of the petition is that respondent trial court has no jurisdiction ov
er petitioner, being a foreign state enjoying sovereign immunity. On the other h
and, private respondent insists that the doctrine of non-suability is not anymor
e absolute and that petitioner has divested itself of such a cloak when, of its
own free will, it entered into a commercial transaction for the sale of a parcel
of land located in the Philippines.
A. The Holy See
Before we determine the issue of petitioner's non-suability, a brief look into i
ts status as a sovereign state is in order.
Before the annexation of the Papal States by Italy in 1870, the Pope was the mon
arch and he, as the Holy See, was considered a subject of International Law. Wit
h the loss of the Papal States and the limitation of the territory under the Hol
y See to an area of 108.7 acres, the position of the Holy See in International L
aw became controversial (Salonga and Yap, Public International Law 36-37 [1992])
.
In 1929, Italy and the Holy See entered into the Lateran Treaty, where Italy rec
ognized the exclusive dominion and sovereign jurisdiction of the Holy See over t
he Vatican City. It also recognized the right of the Holy See to receive foreign
diplomats, to send its own diplomats to foreign countries, and to enter into tr
eaties according to International Law (Garcia, Questions and Problems In Interna
tional Law, Public and Private 81 [1948]).
The Lateran Treaty established the statehood of the Vatican City "for the purpos
e of assuring to the Holy See absolute and visible independence and of guarantee
ing to it indisputable sovereignty also in the field of international relations"
(O'Connell, I International Law 311 [1965]).
In view of the wordings of the Lateran Treaty, it is difficult to determine whet
her the statehood is vested in the Holy See or in the Vatican City. Some writers
even suggested that the treaty created two international persons ? the Holy See
and Vatican City (Salonga and Yap, supra, 37).
The Vatican City fits into none of the established categories of states, and the
attribution to it of "sovereignty" must be made in a sense different from that
in which it is applied to other states (Fenwick, International Law 124-125 [1948
]; Cruz, International Law 37 [1991]). In a community of national states, the Va
tican City represents an entity organized not for political but for ecclesiastic
al purposes and international objects. Despite its size and object, the Vatican
City has an independent government of its own, with the Pope, who is also head o
f the Roman Catholic Church, as the Holy See or Head of State, in conformity wit
h its traditions, and the demands of its mission in the world. Indeed, the world
-wide interests and activities of the Vatican City are such as to make it in a s
ense an "international state" (Fenwick, supra., 125; Kelsen, Principles of Inter
national Law 160 [1956]).
One authority wrote that the recognition of the Vatican City as a state has sign
ificant implication ? that it is possible for any entity pursuing objects essent
ially different from those pursued by states to be invested with international p
ersonality (Kunz, The Status of the Holy See in International Law, 46 The Americ
an Journal of International Law 308 [1952]).
Inasmuch as the Pope prefers to conduct foreign relations and enter into transac
tions as the Holy See and not in the name of the Vatican City, one can conclude
that in the Pope's own view, it is the Holy See that is the international person
.
The Republic of the Philippines has accorded the Holy See the status of a foreig
n sovereign. The Holy See, through its Ambassador, the Papal Nuncio, has had dip
lomatic representations with the Philippine government since 1957 (Rollo, p. 87)
. This appears to be the universal practice in international relations.
B. Sovereign Immunity
As expressed in Section 2 of Article II of the 1987 Constitution, we have adopte
d the generally accepted principles of International Law. Even without this affi
rmation, such principles of International Law are deemed incorporated as part of
the law of the land as a condition and consequence of our admission in the soci
ety of nations (United States of America v. Guinto, 182 SCRA 644 [1990]).
There are two conflicting concepts of sovereign immunity, each widely held and f
irmly established. According to the classical or absolute theory, a sovereign ca
nnot, without its consent, be made a respondent in the courts of another soverei
gn. According to the newer or restrictive theory, the immunity of the sovereign
is recognized only with regard to public acts or acts jure imperii of a state, b
ut not with regard to private acts or acts jure gestionis
(United States of America v. Ruiz, 136 SCRA 487 [1987]; Coquia and Defensor-Sant
iago, Public International Law 194 [1984]).
Some states passed legislation to serve as guidelines for the executive or judic
ial determination when an act may be considered as jure gestionis. The United St
ates passed the Foreign Sovereign Immunities Act of 1976, which defines a commer
cial activity as "either a regular course of commercial conduct or a particular
commercial transaction or act." Furthermore, the law declared that the "commerci
al character of the activity shall be determined by reference to the nature of t
he course of conduct or particular transaction or act, rather than by reference
to its purpose." The Canadian Parliament enacted in 1982 an Act to Provide For S
tate Immunity in Canadian Courts. The Act defines a "commercial activity" as any
particular transaction, act or conduct or any regular course of conduct that by
reason of its nature, is of a "commercial character."
The restrictive theory, which is intended to be a solution to the host of proble
ms involving the issue of sovereign immunity, has created problems of its own. L
egal treatises and the decisions in countries which follow the restrictive theor
y have difficulty in characterizing whether a contract of a sovereign state with
a private party is an act jure gestionis or an act jure imperii.
The restrictive theory came about because of the entry of sovereign states into
purely commercial activities remotely connected with the discharge of government
al functions. This is particularly true with respect to the Communist states whi
ch took control of nationalized business activities and international trading.
This Court has considered the following transactions by a foreign state with pri
vate parties as acts jure imperii: (1) the lease by a foreign government of apar
tment buildings for use of its military officers (Syquia v. Lopez, 84 Phil. 312
[1949]; (2) the conduct of public bidding for the repair of a wharf at a United
States Naval Station (United States of America v. Ruiz, supra.); and (3) the cha
nge of employment status of base employees (Sanders v. Veridiano, 162 SCRA 88 [1
988]).
On the other hand, this Court has considered the following transactions by a for
eign state with private parties as acts jure gestionis: (1) the hiring of a cook
in the recreation center, consisting of three restaurants, a cafeteria, a baker
y, a store, and a coffee and pastry shop at the John Hay Air Station in Baguio C
ity, to cater to American servicemen and the general public (United States of Am
erica v. Rodrigo, 182 SCRA 644 [1990]); and (2) the bidding for the operation of
barber shops in Clark Air Base in Angeles City (United States of America v. Gui
nto, 182 SCRA 644 [1990]). The operation of the restaurants and other facilities
open to the general public is undoubtedly for profit as a commercial and not a
governmental activity. By entering into the employment contract with the cook in
the discharge of its proprietary function, the United States government implied
ly divested itself of its sovereign immunity from suit.
In the absence of legislation defining what activities and transactions shall be
considered "commercial" and as constituting acts jure gestionis, we have to com
e out with our own guidelines, tentative they may be.
Certainly, the mere entering into a contract by a foreign state with a private p
arty cannot be the ultimate test. Such an act can only be the start of the inqui
ry. The logical question is whether the foreign state is engaged in the activity
in the regular course of business. If the foreign state is not engaged regularl
y in a business or trade, the particular act or transaction must then be tested
by its nature. If the act is in pursuit of a sovereign activity, or an incident
thereof, then it is an act jure imperii, especially when it is not undertaken fo
r gain or profit.
As held in United States of America v. Guinto, (supra):
There is no question that the United States of America, like any other state, wi
ll be deemed to have impliedly waived its non-suability if it has entered into a
contract in its proprietary or private capacity. It is only when the contract i
nvolves its sovereign or governmental capacity that no such waiver may be implie
d.
In the case at bench, if petitioner has bought and sold lands in the ordinary co
urse of a real estate business, surely the said transaction can be categorized a
s an act jure gestionis. However, petitioner has denied that the acquisition and
subsequent disposal of Lot 5-A were made for profit but claimed that it acquire
d said property for the site of its mission or the Apostolic Nunciature in the P
hilippines. Private respondent failed to dispute said claim.
Lot 5-A was acquired by petitioner as a donation from the Archdiocese of Manila.
The donation was made not for commercial purpose, but for the use of petitioner
to construct thereon the official place of residence of the Papal Nuncio. The r
ight of a foreign sovereign to acquire property, real or personal, in a receivin
g state, necessary for the creation and maintenance of its diplomatic mission, i
s recognized in the 1961 Vienna Convention on Diplomatic Relations (Arts. 20-22)
. This treaty was concurred in by the Philippine Senate and entered into force i
n the Philippines on November 15, 1965.
In Article 31(a) of the Convention, a diplomatic envoy is granted immunity from
the civil and administrative jurisdiction of the receiving state over any real a
ction relating to private immovable property situated in the territory of the re
ceiving state which the envoy holds on behalf of the sending state for the purpo
ses of the mission. If this immunity is provided for a diplomatic envoy, with al
l the more reason should immunity be recognized as regards the sovereign itself,
which in this case is the Holy See.
The decision to transfer the property and the subsequent disposal thereof are li
kewise clothed with a governmental character. Petitioner did not sell Lot
5-A for profit or gain. It merely wanted to dispose off the same because the squ
atters living thereon made it almost impossible for petitioner to use it for the
purpose of the donation. The fact that squatters have occupied and are still oc
cupying the lot, and that they stubbornly refuse to leave the premises, has been
admitted by private respondent in its complaint (Rollo, pp. 26, 27).
The issue of petitioner's non-suability can be determined by the trial court wit
hout going to trial in the light of the pleadings, particularly the admission of
private respondent. Besides, the privilege of sovereign immunity in this case w
as sufficiently established by the Memorandum and Certification of the Departmen
t of Foreign Affairs. As the department tasked with the conduct of the Philippin
es' foreign relations (Administrative Code of 1987, Book IV, Title I, Sec. 3), t
he Department of Foreign Affairs has formally intervened in this case and offici
ally certified that the Embassy of the Holy See is a duly accredited diplomatic
mission to the Republic of the Philippines exempt from local jurisdiction and en
titled to all the rights, privileges and immunities of a diplomatic mission or e
mbassy in this country (Rollo, pp. 156-157). The determination of the executive
arm of government that a state or instrumentality is entitled to sovereign or di
plomatic immunity is a political question that is conclusive upon the courts (In
ternational Catholic Migration Commission v. Calleja, 190 SCRA 130 [1990]). Wher
e the plea of immunity is recognized and affirmed by the executive branch, it is
the duty of the courts to accept this claim so as not to embarrass the executiv
e arm of the government in conducting the country's foreign relations (World Hea
lth Organization v. Aquino, 48 SCRA 242 [1972]). As in International Catholic Mi
gration Commission and in World Health Organization, we abide by the certificati
on of the Department of Foreign Affairs.
Ordinarily, the procedure would be to remand the case and order the trial court
to conduct a hearing to establish the facts alleged by petitioner in its motion.
In view of said certification, such procedure would however be pointless and un
duly circuitous (Ortigas & Co. Ltd. Partnership v. Judge Tirso Velasco, G.R. No.
109645, July 25, 1994).
IV
Private respondent is not left without any legal remedy for the redress of its g
rievances. Under both Public International Law and Transnational Law, a person w
ho feels aggrieved by the acts of a foreign sovereign can ask his own government
to espouse his cause through diplomatic channels.
Private respondent can ask the Philippine government, through the Foreign Office
, to espouse its claims against the Holy See. Its first task is to persuade the
Philippine government to take up with the Holy See the validity of its claims. O
f course, the Foreign Office shall first make a determination of the impact of i
ts espousal on the relations between the Philippine government and the Holy See
(Young, Remedies of Private Claimants Against Foreign States, Selected Readings
on Protection by Law of Private Foreign Investments 905, 919 [1964]). Once the P
hilippine government decides to espouse the claim, the latter ceases to be a pri
vate cause.
According to the Permanent Court of International Justice, the forerunner of the
International Court of Justice:
By taking up the case of one of its subjects and by reporting to diplomatic acti
on or international judicial proceedings on his behalf, a State is in reality as
serting its own rights ? its right to ensure, in the person of its subjects, res
pect for the rules of international law (The Mavrommatis Palestine Concessions,
1 Hudson, World Court Reports 293, 302 [1924]).
WHEREFORE, the petition for certiorari is GRANTED and the complaint in Civil Cas
e No. 90-183 against petitioner is DISMISSED.
SO ORDERED.
Narvasa, C.J., Bidin, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vit
ug, Kapunan and Mendoza, JJ., concur.
Padilla, J., took no part.
Feliciano, J., is on leave.
The Lawphil Project - Arellano Law Foundation

4.
EN BANC
[G.R. No. 141284. August 15, 2000]
INTEGRATED BAR OF THE PHILIPPINES, petitioner, vs. HON. RONALDO B. ZAMORA, GEN.
PANFILO M. LACSON, GEN. EDGAR B. AGLIPAY, and GEN. ANGELO REYES, respondents.
D E C I S I O N
KAPUNAN, J.:
At bar is a special civil action for certiorari and prohibition with prayer for
issuance of a temporary restraining order seeking to nullify on constitutional g
rounds the order of President Joseph Ejercito Estrada commanding the deployment
of the Philippine Marines (the gMarinesh) to join the Philippine National Police (
the gPNPh) in visibility patrols around the metropolis.
In view of the alarming increase in violent crimes in Metro Manila, like robberi
es, kidnappings and carnappings, the President, in a verbal directive, ordered
the PNP and the Marines to conduct joint visibility patrols for the purpose of c
rime prevention and suppression. The Secretary of National Defense, the Chief o
f Staff of the Armed Forces of the Philippines (the gAFPh), the Chief of the PNP a
nd the Secretary of the Interior and Local Government were tasked to execute and
implement the said order. In compliance with the presidential mandate, the PNP
Chief, through Police Chief Superintendent Edgar B. Aglipay, formulated Letter
of Instruction 02/2000[1] (the gLOIh) which detailed the manner by which the joint
visibility patrols, called Task Force Tulungan, would be conducted.[2] Task For
ce Tulungan was placed under the leadership of the Police Chief of Metro Manila.
Subsequently, the President confirmed his previous directive on the deployment o
f the Marines in a Memorandum, dated 24 January 2000, addressed to the Chief of
Staff of the AFP and the PNP Chief.[3] In the Memorandum, the President express
ed his desire to improve the peace and order situation in Metro Manila through a
more effective crime prevention program including increased police patrols.[4]
The President further stated that to heighten police visibility in the metropoli
s, augmentation from the AFP is necessary.[5] Invoking his powers as Commander-i
n-Chief under Section 18, Article VII of the Constitution, the President directe
d the AFP Chief of Staff and PNP Chief to coordinate with each other for the pro
per deployment and utilization of the Marines to assist the PNP in preventing or
suppressing criminal or lawless violence.[6] Finally, the President declared th
at the services of the Marines in the anti-crime campaign are merely temporary i
n nature and for a reasonable period only, until such time when the situation sh
all have improved.[7]
The LOI explains the concept of the PNP-Philippine Marines joint visibility patr
ols as follows:
x x x
2. PURPOSE:
The Joint Implementing Police Visibility Patrols between the PNP NCRPO and the P
hilippine Marines partnership in the conduct of visibility patrols in Metro Mani
la for the suppression of crime prevention and other serious threats to national
security.
3. SITUATION:
Criminal incidents in Metro Manila have been perpetrated not only by ordinary cr
iminals but also by organized syndicates whose members include active and former
police/military personnel whose training, skill, discipline and firepower prove
well-above the present capability of the local police alone to handle. The dep
loyment of a joint PNP NCRPO-Philippine Marines in the conduct of police visibil
ity patrol in urban areas will reduce the incidence of crimes specially those pe
rpetrated by active or former police/military personnel.
4. MISSION:
The PNP NCRPO will organize a provisional Task Force to conduct joint NCRPO-PM v
isibility patrols to keep Metro Manila streets crime-free, through a sustained s
treet patrolling to minimize or eradicate all forms of high-profile crimes espec
ially those perpetrated by organized crime syndicates whose members include thos
e that are well-trained, disciplined and well-armed active or former PNP/Militar
y personnel.
5. CONCEPT IN JOINT VISIBILITY PATROL OPERATIONS:
a. The visibility patrols shall be conducted jointly by the NCRPO [National Capi
tal Regional Police Office] and the Philippine Marines to curb criminality in Me
tro Manila and to preserve the internal security of the state against insurgents
and other serious threat to national security, although the primary responsibil
ity over Internal Security Operations still rests upon the AFP.
b. The principle of integration of efforts shall be applied to eradicate all for
ms of high-profile crimes perpetrated by organized crime syndicates operating in
Metro Manila. This concept requires the military and police to work cohesively
and unify efforts to ensure a focused, effective and holistic approach in addres
sing crime prevention. Along this line, the role of the military and police asid
e from neutralizing crime syndicates is to bring a wholesome atmosphere wherein
delivery of basic services to the people and development is achieved. Hand-in-ha
nd with this joint NCRPO-Philippine Marines visibility patrols, local Police Uni
ts are responsible for the maintenance of peace and order in their locality.
c. To ensure the effective implementation of this project, a provisional Task Fo
rce gTULUNGANh shall be organized to provide the mechanism, structure, and procedu
res for the integrated planning, coordinating, monitoring and assessing the secu
rity situation.
xxx.[8]
The selected areas of deployment under the LOI are: Monumento Circle, North Edsa
(SM City), Araneta Shopping Center, Greenhills, SM Megamall, Makati Commercial
Center, LRT/MRT Stations and the NAIA and Domestic Airport.[9]
On 17 January 2000, the Integrated Bar of the Philippines (the gIBPh) filed the in
stant petition to annul LOI 02/2000 and to declare the deployment of the Philipp
ine Marines, null and void and unconstitutional, arguing that:
I
THE DEPLOYMENT OF THE PHILIPPINE MARINES IN METRO MANILA IS VIOLATIVE OF THE CON
STITUTION, IN THAT:
A) NO EMERGENCY SITUATION OBTAINS IN METRO MANILA AS WOULD JUSTIFY, EVEN ONLY RE
MOTELY, THE DEPLOYMENT OF SOLDIERS FOR LAW ENFORCEMENT WORK; HENCE, SAID DEPLOYM
ENT IS IN DEROGATION OF ARTICLE II, SECTION 3 OF THE CONSTITUTION;
B) SAID DEPLOYMENT CONSTITUTES AN INSIDIOUS INCURSION BY THE MILITARY IN A CIVIL
IAN FUNCTION OF GOVERNMENT (LAW ENFORCEMENT) IN DEROGATION OF ARTICLE XVI, SECTI
ON 5 (4), OF THE CONSTITUTION;
C) SAID DEPLOYMENT CREATES A DANGEROUS TENDENCY TO RELY ON THE MILITARY TO PERFO
RM THE CIVILIAN FUNCTIONS OF THE GOVERNMENT.
II
IN MILITARIZING LAW ENFORCEMENT IN METRO MANILA, THE ADMINISTRATION IS UNWITTING
LY MAKING THE MILITARY MORE POWERFUL THAN WHAT IT SHOULD REALLY BE UNDER THE CON
STITUTION.[10]
Asserting itself as the official organization of Filipino lawyers tasked with th
e bounden duty to uphold the rule of law and the Constitution, the IBP questions
the validity of the deployment and utilization of the Marines to assist the PNP
in law enforcement.
Without granting due course to the petition, the Court in a Resolution,[11] date
d 25 January 2000, required the Solicitor General to file his Comment on the pet
ition. On 8 February 2000, the Solicitor General submitted his Comment.
The Solicitor General vigorously defends the constitutionality of the act of the
President in deploying the Marines, contending, among others, that petitioner h
as no legal standing; that the question of deployment of the Marines is not pro
per for judicial scrutiny since the same involves a political question; that th
e organization and conduct of police visibility patrols, which feature the team-
up of one police officer and one Philippine Marine soldier, does not violate the
civilian supremacy clause in the Constitution.
The issues raised in the present petition are: (1) Whether or not petitioner has
legal standing; (2) Whether or not the Presidentfs factual determination of the
necessity of calling the armed forces is subject to judicial review; and, (3) W
hether or not the calling of the armed forces to assist the PNP in joint visibil
ity patrols violates the constitutional provisions on civilian supremacy over t
he military and the civilian character of the PNP.
The petition has no merit.
First, petitioner failed to sufficiently show that it is in possession of the re
quisites of standing to raise the issues in the petition. Second, the President
did not commit grave abuse of discretion amounting to lack or excess of jurisdi
ction nor did he commit a violation of the civilian supremacy clause of the Cons
titution.
The power of judicial review is set forth in Section 1, Article VIII of the Cons
titution, to wit:
Section 1. The judicial power shall be vested in one Supreme Court and in such l
ower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual contr
oversies involving rights which are legally demandable and enforceable, and to d
etermine whether or not there has been grave abuse of discretion amounting to la
ck or excess of jurisdiction on the part of any branch or instrumentality of the
Government.
When questions of constitutional significance are raised, the Court can exercise
its power of judicial review only if the following requisites are complied with
, namely: (1) the existence of an actual and appropriate case; (2) a personal a
nd substantial interest of the party raising the constitutional question; (3) th
e exercise of judicial review is pleaded at the earliest opportunity; and (4) th
e constitutional question is the lis mota of the case.[12]
The IBP has not sufficiently complied with the requisites of standing in this ca
se.
gLegal standingh or locus standi has been defined as a personal and substantial i
nterest in the case such that the party has sustained or will sustain direct inj
ury as a result of the governmental act that is being challenged.[13] The term gi
nteresth means a material interest, an interest in issue affected by the decree,
as distinguished from mere interest in the question involved, or a mere incident
al interest.[14] The gist of the question of standing is whether a party alleges
gsuch personal stake in the outcome of the controversy as to assure that concret
e adverseness which sharpens the presentation of issues upon which the court dep
ends for illumination of difficult constitutional questions.h[15]
In the case at bar, the IBP primarily anchors its standing on its alleged respon
sibility to uphold the rule of law and the Constitution. Apart from this declar
ation, however, the IBP asserts no other basis in support of its locus standi.
The mere invocation by the IBP of its duty to preserve the rule of law and nothi
ng more, while undoubtedly true, is not sufficient to clothe it with standing in
this case. This is too general an interest which is shared by other groups and
the whole citizenry. Based on the standards above-stated, the IBP has failed t
o present a specific and substantial interest in the resolution of the case. It
s fundamental purpose which, under Section 2, Rule 139-A of the Rules of Court,
is to elevate the standards of the law profession and to improve the administrat
ion of justice is alien to, and cannot be affected by the deployment of the Mari
nes. It should also be noted that the interest of the National President of the
IBP who signed the petition, is his alone, absent a formal board resolution aut
horizing him to file the present action. To be sure, members of the BAR, those
in the judiciary included, have varying opinions on the issue. Moreover, the IBP
, assuming that it has duly authorized the National President to file the petiti
on, has not shown any specific injury which it has suffered or may suffer by vir
tue of the questioned governmental act. Indeed, none of its members, whom the I
BP purportedly represents, has sustained any form of injury as a result of the o
peration of the joint visibility patrols. Neither is it alleged that any of its
members has been arrested or that their civil liberties have been violated by t
he deployment of the Marines. What the IBP projects as injurious is the suppose
d gmilitarizationh of law enforcement which might threaten Philippine democratic i
nstitutions and may cause more harm than good in the long run. Not only is the
presumed ginjuryh not personal in character, it is likewise too vague, highly spec
ulative and uncertain to satisfy the requirement of standing. Since petitioner
has not successfully established a direct and personal injury as a consequence o
f the questioned act, it does not possess the personality to assail the validity
of the deployment of the Marines. This Court, however, does not categorically
rule that the IBP has absolutely no standing to raise constitutional issues now
or in the future. The IBP must, by way of allegations and proof, satisfy this C
ourt that it has sufficient stake to obtain judicial resolution of the controver
sy.
Having stated the foregoing, it must be emphasized that this Court has the discr
etion to take cognizance of a suit which does not satisfy the requirement of leg
al standing when paramount interest is involved.[16] In not a few cases, the Cou
rt has adopted a liberal attitude on the locus standi of a petitioner where the
petitioner is able to craft an issue of transcendental significance to the peopl
e.[17] Thus, when the issues raised are of paramount importance to the public, t
he Court may brush aside technicalities of procedure.[18] In this case, a readin
g of the petition shows that the IBP has advanced constitutional issues which de
serve the attention of this Court in view of their seriousness, novelty and weig
ht as precedents. Moreover, because peace and order are under constant threat a
nd lawless violence occurs in increasing tempo, undoubtedly aggravated by the Mi
ndanao insurgency problem, the legal controversy raised in the petition almost c
ertainly will not go away. It will stare us in the face again. It, therefore,
behooves the Court to relax the rules on standing and to resolve the issue now,
rather than later.
The President did not commit grave abuse of discretion in calling out the Marine
s.
In the case at bar, the bone of contention concerns the factual determination of
the President of the necessity of calling the armed forces, particularly the Ma
rines, to aid the PNP in visibility patrols. In this regard, the IBP admits tha
t the deployment of the military personnel falls under the Commander-in-Chief po
wers of the President as stated in Section 18, Article VII of the Constitution,
specifically, the power to call out the armed forces to prevent or suppress lawl
ess violence, invasion or rebellion. What the IBP questions, however, is the ba
sis for the calling of the Marines under the aforestated provision. According to
the IBP, no emergency exists that would justify the need for the calling of the
military to assist the police force. It contends that no lawless violence, inv
asion or rebellion exist to warrant the calling of the Marines. Thus, the IBP p
rays that this Court greview the sufficiency of the factual basis for said troop
[Marine] deployment.h[19]
The Solicitor General, on the other hand, contends that the issue pertaining to
the necessity of calling the armed forces is not proper for judicial scrutiny si
nce it involves a political question and the resolution of factual issues which
are beyond the review powers of this Court.
As framed by the parties, the underlying issues are the scope of presidential po
wers and limits, and the extent of judicial review. But, while this Court gives
considerable weight to the partiesf formulation of the issues, the resolution of
the controversy may warrant a creative approach that goes beyond the narrow con
fines of the issues raised. Thus, while the parties are in agreement that the p
ower exercised by the President is the power to call out the armed forces, the C
ourt is of the view that the power involved may be no more than the maintenance
of peace and order and promotion of the general welfare.[20] For one, the realit
ies on the ground do not show that there exist a state of warfare, widespread ci
vil unrest or anarchy. Secondly, the full brunt of the military is not brought
upon the citizenry, a point discussed in the latter part of this decision. In t
he words of the late Justice Irene Cortes in Marcos v. Manglapus:
More particularly, this case calls for the exercise of the Presidentfs powers as
protector of the peace. [Rossiter, The American Presidency]. The power of the
President to keep the peace is not limited merely to exercising the commander-in
-chief powers in times of emergency or to leading the State against external and
internal threats to its existence. The President is not only clothed with extr
aordinary powers in times of emergency, but is also tasked with attending to the
day-to-day problems of maintaining peace and order and ensuring domestic tranqu
ility in times when no foreign foe appears on the horizon. Wide discretion, wit
hin the bounds of law, in fulfilling presidential duties in times of peace is no
t in any way diminished by the relative want of an emergency specified in the co
mmander-in-chief provision. For in making the President commander-in-chief the e
numeration of powers that follow cannot be said to exclude the Presidentfs exerci
sing as Commander-in-Chief powers short of the calling of the armed forces, or s
uspending the privilege of the writ of habeas corpus or declaring martial law,
in order to keep the peace, and maintain public order and security.
xxx[21]
Nonetheless, even if it is conceded that the power involved is the Presidentfs po
wer to call out the armed forces to prevent or suppress lawless violence, invasi
on or rebellion, the resolution of the controversy will reach a similar result.
We now address the Solicitor Generalfs argument that the issue involved is not su
sceptible to review by the judiciary because it involves a political question, a
nd thus, not justiciable.
As a general proposition, a controversy is justiciable if it refers to a matter
which is appropriate for court review.[22] It pertains to issues which are inher
ently susceptible of being decided on grounds recognized by law. Nevertheless, t
he Court does not automatically assume jurisdiction over actual constitutional c
ases brought before it even in instances that are ripe for resolution. One clas
s of cases wherein the Court hesitates to rule on are gpolitical questions.h The r
eason is that political questions are concerned with issues dependent upon the w
isdom, not the legality, of a particular act or measure being assailed. Moreove
r, the political question being a function of the separation of powers, the cour
ts will not normally interfere with the workings of another co-equal branch unle
ss the case shows a clear need for the courts to step in to uphold the law and t
he Constitution.
As Tanada v. Cuenco[23] puts it, political questions refer gto those questions wh
ich, under the Constitution, are to be decided by the people in their sovereign
capacity, or in regard to which full discretionary authority has been delegated
to the legislative or executive branch of government.h Thus, if an issue is clear
ly identified by the text of the Constitution as matters for discretionary actio
n by a particular branch of government or to the people themselves then it is he
ld to be a political question. In the classic formulation of Justice Brennan in
Baker v. Carr,[24] g[p]rominent on the surface of any case held to involve a pol
itical question is found a textually demonstrable constitutional commitment of t
he issue to a coordinate political department; or a lack of judicially discovera
ble and manageable standards for resolving it; or the impossibility of deciding
without an initial policy determination of a kind clearly for nonjudicial discre
tion; or the impossibility of a courtfs undertaking independent resolution withou
t expressing lack of the respect due coordinate branches of government; or an un
usual need for unquestioning adherence to a political decision already made; or
the potentiality of embarassment from multifarious pronouncements by various dep
artments on the one question.h
The 1987 Constitution expands the concept of judicial review by providing that g(
T)he Judicial power shall be vested in one Supreme Court and in such lower court
s as may be established by law. Judicial power includes the duty of the courts
of justice to settle actual controversies involving rights which are legally dem
andable and enforceable, and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of the Government.h[25] Under this definition, the
Court cannot agree with the Solicitor General that the issue involved is a polit
ical question beyond the jurisdiction of this Court to review. When the grant o
f power is qualified, conditional or subject to limitations, the issue of whethe
r the prescribed qualifications or conditions have been met or the limitations r
espected, is justiciable - the problem being one of legality or validity, not it
s wisdom.[26] Moreover, the jurisdiction to delimit constitutional boundaries ha
s been given to this Court.[27] When political questions are involved, the Const
itution limits the determination as to whether or not there has been a grave abu
se of discretion amounting to lack or excess of jurisdiction on the part of the
official whose action is being questioned.[28]
By grave abuse of discretion is meant simply capricious or whimsical exercise of
judgment that is 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 cont
emplation of law, as where the power is exercised in an arbitrary and despotic m
anner by reason of passion or hostility.[29] Under this definition, a court is w
ithout power to directly decide matters over which full discretionary authority
has been delegated. But while this Court has no power to substitute its judgmen
t for that of Congress or of the President, it may look into the question of whe
ther such exercise has been made in grave abuse of discretion.[30] A showing tha
t plenary power is granted either department of government, may not be an obstac
le to judicial inquiry, for the improvident exercise or abuse thereof may give r
ise to justiciable controversy.[31]
When the President calls the armed forces to prevent or suppress lawless violenc
e, invasion or rebellion, he necessarily exercises a discretionary power solely
vested in his wisdom. This is clear from the intent of the framers and from the
text of the Constitution itself. The Court, thus, cannot be called upon to ove
rrule the Presidentfs wisdom or substitute its own. However, this does not preve
nt an examination of whether such power was exercised within permissible constit
utional limits or whether it was exercised in a manner constituting grave abuse
of discretion. In view of the constitutional intent to give the President full
discretionary power to determine the necessity of calling out the armed forces,
it is incumbent upon the petitioner to show that the Presidentfs decision is tota
lly bereft of factual basis. The present petition fails to discharge such heavy
burden as there is no evidence to support the assertion that there exist no jus
tification for calling out the armed forces. There is, likewise, no evidence to
support the proposition that grave abuse was committed because the power to cal
l was exercised in such a manner as to violate the constitutional provision on c
ivilian supremacy over the military. In the performance of this Courtfs duty of g
purposeful hesitationh[32] before declaring an act of another branch as unconstit
utional, only where such grave abuse of discretion is clearly shown shall the Co
urt interfere with the Presidentfs judgment. To doubt is to sustain.
There is a clear textual commitment under the Constitution to bestow on the Pres
ident full discretionary power to call out the armed forces and to determine the
necessity for the exercise of such power. Section 18, Article VII of the Const
itution, which embodies the powers of the President as Commander-in-Chief, provi
des in part:
The President shall be the Commander-in-Chief of all armed forces of the Philipp
ines and whenever it becomes necessary, he may call out such armed forces to pre
vent or suppress lawless violence, invasion or rebellion. In case of invasion o
r rebellion, when the public safety requires it, he may, for a period not exceed
ing sixty days, suspend the privilege of the writ of habeas corpus, or place the
Philippines or any part thereof under martial law.
x x x
The full discretionary power of the President to determine the factual basis for
the exercise of the calling out power is also implied and further reinforced in
the rest of Section 18, Article VII which reads, thus:
x x x
Within forty-eight hours from the proclamation of martial law or the suspension
of the privilege of the writ of habeas corpus, the President shall submit a repo
rt in person or in writing to the Congress. The Congress, voting jointly, by a
vote of at least a majority of all its Members in regular or special session, ma
y revoke such proclamation or suspension, which revocation shall not be set asid
e by the President. Upon the initiative of the President, the Congress may, in
the same manner, extend such proclamation or suspension for a period to be deter
mined by the Congress, if the invasion or rebellion shall persist and public saf
ety requires it.
The Congress, if not in session, shall within twenty-four hours following such p
roclamation or suspension, convene in accordance with its rules without need of
a call.
The Supreme Court may review, in an appropriate proceeding filed by any citizen,
the sufficiency of the factual basis of the proclamation of martial law or the
suspension of the privilege of the writ or the extension thereof, and must promu
lgate its decision thereon within thirty days from its filing.
A state of martial law does not suspend the operation of the Constitution, nor s
upplant the functioning of the civil courts or legislative assemblies, nor autho
rize the conferment of jurisdiction on military courts and agencies over civilia
ns where civil courts are able to function, nor automatically suspend the privil
ege of the writ.
The suspension of the privilege of the writ shall apply only to persons judicial
ly charged for rebellion or offenses inherent in or directly connected with inva
sion.
During the suspension of the privilege of the writ, any person thus arrested or
detained shall be judicially charged within three days, otherwise he shall be re
leased.
Under the foregoing provisions, Congress may revoke such proclamation or suspens
ion and the Court may review the sufficiency of the factual basis thereof. Howe
ver, there is no such equivalent provision dealing with the revocation or review
of the Presidentfs action to call out the armed forces. The distinction places
the calling out power in a different category from the power to declare martial
law and the power to suspend the privilege of the writ of habeas corpus, otherwi
se, the framers of the Constitution would have simply lumped together the three
powers and provided for their revocation and review without any qualification.
Expressio unius est exclusio alterius. Where the terms are expressly limited to
certain matters, it may not, by interpretation or construction, be extended to
other matters.[33] That the intent of the Constitution is exactly what its lett
er says, i.e., that the power to call is fully discretionary to the President, i
s extant in the deliberation of the Constitutional Commission, to wit:
FR. BERNAS. It will not make any difference. I may add that there is a graduate
d power of the President as Commander-in-Chief. First, he can call out such Arm
ed Forces as may be necessary to suppress lawless violence; then he can suspend
the privilege of the writ of habeas corpus, then he can impose martial law. Thi
s is a graduated sequence.
When he judges that it is necessary to impose martial law or suspend the privile
ge of the writ of habeas corpus, his judgment is subject to review. We are maki
ng it subject to review by the Supreme Court and subject to concurrence by the N
ational Assembly. But when he exercises this lesser power of calling on the Arm
ed Forces, when he says it is necessary, it is my opinion that his judgment cann
ot be reviewed by anybody.
x x x
FR. BERNAS. Let me just add that when we only have imminent danger, the matter
can be handled by the first sentence: gThe President may call out such armed forc
es to prevent or suppress lawless violence, invasion or rebellion.h So we feel th
at that is sufficient for handling imminent danger.
MR. DE LOS REYES. So actually, if a President feels that there is imminent dang
er, the matter can be handled by the First Sentence: gThe President....may call o
ut such Armed Forces to prevent or suppress lawless violence, invasion or rebell
ion.h So we feel that that is sufficient for handling imminent danger, of invasio
n or rebellion, instead of imposing martial law or suspending the writ of habeas
corpus, he must necessarily have to call the Armed Forces of the Philippines as
their Commander-in-Chief. Is that the idea?
MR. REGALADO. That does not require any concurrence by the legislature nor is i
t subject to judicial review.[34]
The reason for the difference in the treatment of the aforementioned powers high
lights the intent to grant the President the widest leeway and broadest discreti
on in using the power to call out because it is considered as the lesser and mor
e benign power compared to the power to suspend the privilege of the writ of hab
eas corpus and the power to impose martial law, both of which involve the curtai
lment and suppression of certain basic civil rights and individual freedoms, and
thus necessitating safeguards by Congress and review by this Court.
Moreover, under Section 18, Article VII of the Constitution, in the exercise of
the power to suspend the privilege of the writ of habeas corpus or to impose mar
tial law, two conditions must concur: (1) there must be an actual invasion or re
bellion and, (2) public safety must require it. These conditions are not require
d in the case of the power to call out the armed forces. The only criterion is t
hat gwhenever it becomes necessary,h the President may call the armed forces gto pr
event or suppress lawless violence, invasion or rebellion." The implication is t
hat the President is given full discretion and wide latitude in the exercise of
the power to call as compared to the two other powers.
If the petitioner fails, by way of proof, to support the assertion that the Pres
ident acted without factual basis, then this Court cannot undertake an independe
nt investigation beyond the pleadings. The factual necessity of calling out the
armed forces is not easily quantifiable and cannot be objectively established s
ince matters considered for satisfying the same is a combination of several fact
ors which are not always accessible to the courts. Besides the absence of textua
l standards that the court may use to judge necessity, information necessary to
arrive at such judgment might also prove unmanageable for the courts. Certain p
ertinent information might be difficult to verify, or wholly unavailable to the
courts. In many instances, the evidence upon which the President might decide t
hat there is a need to call out the armed forces may be of a nature not constitu
ting technical proof.
On the other hand, the President as Commander-in-Chief has a vast intelligence n
etwork to gather information, some of which may be classified as highly confiden
tial or affecting the security of the state. In the exercise of the power to ca
ll, on-the-spot decisions may be imperatively necessary in emergency situations
to avert great loss of human lives and mass destruction of property. Indeed, th
e decision to call out the military to prevent or suppress lawless violence must
be done swiftly and decisively if it were to have any effect at all. Such a sc
enario is not farfetched when we consider the present situation in Mindanao, whe
re the insurgency problem could spill over the other parts of the country. The
determination of the necessity for the calling out power if subjected to unfette
red judicial scrutiny could be a veritable prescription for disaster, as such po
wer may be unduly straitjacketed by an injunction or a temporary restraining ord
er every time it is exercised.
Thus, it is the unclouded intent of the Constitution to vest upon the President,
as Commander-in-Chief of the Armed Forces, full discretion to call forth the mi
litary when in his judgment it is necessary to do so in order to prevent or supp
ress lawless violence, invasion or rebellion. Unless the petitioner can show th
at the exercise of such discretion was gravely abused, the Presidentfs exercise o
f judgment deserves to be accorded respect from this Court.
The President has already determined the necessity and factual basis for calling
the armed forces. In his Memorandum, he categorically asserted that, g[V]iolent
crimes like bank/store robberies, holdups, kidnappings and carnappings continue
to occur in Metro Manila...h[35] We do not doubt the veracity of the Presidentfs
assessment of the situation, especially in the light of present developments. T
he Court takes judicial notice of the recent bombings perpetrated by lawless ele
ments in the shopping malls, public utilities, and other public places. These a
re among the areas of deployment described in the LOI 2000. Considering all the
se facts, we hold that the President has sufficient factual basis to call for mi
litary aid in law enforcement and in the exercise of this constitutional power.
The deployment of the Marines does not violate the civilian supremacy clause nor
does it infringe the civilian character of the police force.
Prescinding from its argument that no emergency situation exists to justify the
calling of the Marines, the IBP asserts that by the deployment of the Marines, t
he civilian task of law enforcement is gmilitarizedh in violation of Section 3, Ar
ticle II[36] of the Constitution.
We disagree. The deployment of the Marines does not constitute a breach of the c
ivilian supremacy clause. The calling of the Marines in this case constitutes p
ermissible use of military assets for civilian law enforcement. The participati
on of the Marines in the conduct of joint visibility patrols is appropriately ci
rcumscribed. The limited participation of the Marines is evident in the provisi
ons of the LOI itself, which sufficiently provides the metes and bounds of the M
arinesf authority. It is noteworthy that the local police forces are the ones in
charge of the visibility patrols at all times, the real authority belonging to
the PNP. In fact, the Metro Manila Police Chief is the overall leader of the PN
P-Philippine Marines joint visibility patrols.[37] Under the LOI, the police for
ces are tasked to brief or orient the soldiers on police patrol procedures.[38]
It is their responsibility to direct and manage the deployment of the Marines.[3
9] It is, likewise, their duty to provide the necessary equipment to the Marines
and render logistical support to these soldiers.[40] In view of the foregoing,
it cannot be properly argued that military authority is supreme over civilian au
thority. Moreover, the deployment of the Marines to assist the PNP does not unm
ake the civilian character of the police force. Neither does it amount to an gin
sidious incursionh of the military in the task of law enforcement in violation of
Section 5(4), Article XVI of the Constitution.[41]
In this regard, it is not correct to say that General Angelo Reyes, Chief of Sta
ff of the AFP, by his alleged involvement in civilian law enforcement, has been
virtually appointed to a civilian post in derogation of the aforecited provision
. The real authority in these operations, as stated in the LOI, is lodged with
the head of a civilian institution, the PNP, and not with the military. Such be
ing the case, it does not matter whether the AFP Chief actually participates in
the Task Force Tulungan since he does not exercise any authority or control over
the same. Since none of the Marines was incorporated or enlisted as members of
the PNP, there can be no appointment to civilian position to speak of. Hence,
the deployment of the Marines in the joint visibility patrols does not destroy
the civilian character of the PNP.
Considering the above circumstances, the Marines render nothing more than assist
ance required in conducting the patrols. As such, there can be no ginsidious inc
ursionh of the military in civilian affairs nor can there be a violation of the c
ivilian supremacy clause in the Constitution.
It is worth mentioning that military assistance to civilian authorities in vario
us forms persists in Philippine jurisdiction. The Philippine experience reveal
s that it is not averse to requesting the assistance of the military in the impl
ementation and execution of certain traditionally gcivilh functions. As correctly
pointed out by the Solicitor General, some of the multifarious activities where
in military aid has been rendered, exemplifying the activities that bring both t
he civilian and the military together in a relationship of cooperation, are:
1. Elections;[42]
2. Administration of the Philippine National Red Cross;[43]
3. Relief and rescue operations during calamities and disasters;[44]
4. Amateur sports promotion and development;[45]
5. Development of the culture and the arts;[46]
6. Conservation of natural resources;[47]
7. Implementation of the agrarian reform program;[48]
8. Enforcement of customs laws;[49]
9. Composite civilian-military law enforcement activities;[50]
10. Conduct of licensure examinations;[51]
11. Conduct of nationwide tests for elementary and high school students;[52]
12. Anti-drug enforcement activities;[53]
13. Sanitary inspections;[54]
14. Conduct of census work;[55]
15. Administration of the Civil Aeronautics Board;[56]
16. Assistance in installation of weather forecasting devices;[57]
17. Peace and order policy formulation in local government units.[58]
This unquestionably constitutes a gloss on executive power resulting from a syst
ematic, unbroken, executive practice, long pursued to the knowledge of Congress
and, yet, never before questioned.[59] What we have here is mutual support and c
ooperation between the military and civilian authorities, not derogation of civ
ilian supremacy.
In the United States, where a long tradition of suspicion and hostility towards
the use of military force for domestic purposes has persisted,[60] and whose Con
stitution, unlike ours, does not expressly provide for the power to call, the us
e of military personnel by civilian law enforcement officers is allowed under ci
rcumstances similar to those surrounding the present deployment of the Philippin
e Marines. Under the Posse Comitatus Act[61] of the US, the use of the military
in civilian law enforcement is generally prohibited, except in certain allowabl
e circumstances. A provision of the Act states:
1385. Use of Army and Air Force as posse comitatus
Whoever, except in cases and under circumstances expressly authorized by the Con
stitution or Act of Congress, willfully uses any part of the Army or the Air For
ce as posse comitatus or otherwise to execute the laws shall be fined not more t
han $10,000 or imprisoned not more than two years, or both.[62]
To determine whether there is a violation of the Posse Comitatus Act in the use
of military personnel, the US courts[63] apply the following standards, to wit:
Were Army or Air Force personnel used by the civilian law enforcement officers a
t Wounded Knee in such a manner that the military personnel subjected the citize
ns to the exercise of military power which was regulatory, proscriptive, or comp
ulsory[64] George Washington Law Review, pp. 404-433 (1986), which discusses the
four divergent standards for assessing acceptable involvement of military perso
nnel in civil law enforcement. See likewise HONORED IN THE BREECH: PRESIDENTIAL
AUTHORITY TO EXECUTE THE LAWS WITH MILITARY FORCE, 83 Yale Law Journal, pp. 130
-152, 1973. 64 in nature, either presently or prospectively?
x x x
When this concept is transplanted into the present legal context, we take it to
mean that military involvement, even when not expressly authorized by the Consti
tution or a statute, does not violate the Posse Comitatus Act unless it actually
regulates, forbids or compels some conduct on the part of those claiming relief
. A mere threat of some future injury would be insufficient. (emphasis supplied)
Even if the Court were to apply the above rigid standards to the present case to
determine whether there is permissible use of the military in civilian law enfo
rcement, the conclusion is inevitable that no violation of the civilian supremac
y clause in the Constitution is committed. On this point, the Court agrees with
the observation of the Solicitor General:
3. The designation of tasks in Annex A[65] does not constitute the exercise of r
egulatory, proscriptive, or compulsory military power. First, the soldiers do n
ot control or direct the operation. This is evident from Nos. 6,[66] 8(k)[67] an
d 9(a)[68] of Annex A. These soldiers, second, also have no power to prohibit o
r condemn. In No. 9(d)[69] of Annex A, all arrested persons are brought to the
nearest police stations for proper disposition. And last, these soldiers apply
no coercive force. The materials or equipment issued to them, as shown in No. 8
(c)[70] of Annex A, are all low impact and defensive in character. The conclusi
on is that there being no exercise of regulatory, proscriptive or compulsory mil
itary power, the deployment of a handful of Philippine Marines constitutes no im
permissible use of military power for civilian law enforcement.[71]
It appears that the present petition is anchored on fear that once the armed for
ces are deployed, the military will gain ascendancy, and thus place in peril our
cherished liberties. Such apprehensions, however, are unfounded. The power to
call the armed forces is just that - calling out the armed forces. Unless, pe
titioner IBP can show, which it has not, that in the deployment of the Marines,
the President has violated the fundamental law, exceeded his authority or jeopar
dized the civil liberties of the people, this Court is not inclined to overrule
the Presidentfs determination of the factual basis for the calling of the Marine
s to prevent or suppress lawless violence.
One last point. Since the institution of the joint visibility patrol in January
, 2000, not a single citizen has complained that his political or civil rights h
ave been violated as a result of the deployment of the Marines. It was precisel
y to safeguard peace, tranquility and the civil liberties of the people that the
joint visibility patrol was conceived. Freedom and democracy will be in full b
loom only when people feel secure in their homes and in the streets, not when th
e shadows of violence and anarchy constantly lurk in their midst.
WHEREFORE, premises considered, the petition is hereby DISMISSED.
SO ORDERED.
Davide, Jr., C.J., Melo, Purisima, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago,
and De Leon, Jr., JJ., concur.
Bellosillo, J., on official leave.
Puno, J., see separate opinion.
Vitug, J., see separate opinion.
Mendoza, J., see concurring and dissenting opinion.
Panganiban, J., in the result.
Quisumbing, J., joins the opinion of J. Mendoza.
SEPARATE OPINION
PUNO, J.:
If the case at bar is significant, it is because of the government attempt to fo
ist the political question doctrine to shield an executive act done in the exerc
ise of the commander-in-chief powers from judicial scrutiny. If the attempt suc
ceeded, it would have diminished the power of judicial review and weakened the c
hecking authority of this Court over the Chief Executive when he exercises his c
ommander-in-chief powers. The attempt should remind us of the tragedy that befe
ll the country when this Court sought refuge in the political question doctrine
and forfeited its most important role as protector of the civil and political ri
ghts of our people. The ongoing conflict in Mindanao may worsen and can force t
he Chief Executive to resort to the use of his greater commander-in-chief powers
, hence, this Court should be extra cautious in assaying similar attempts. A la
id back posture may not sit well with our people considering that the 1987 Const
itution strengthened the checking powers of this Court and expanded its jurisdic
tion precisely to stop any act constituting gxxx grave abuse of jurisdiction xxx
on the part of any branch or instrumentality of the Government.h1
The importance of the issue at bar includes this humble separate opinion. We ca
n best perceive the different intersecting dimensions of the political question
doctrine by viewing them from the broader canvass of history. Political questio
ns are defined as gthose questions which under the Constitution, are to be decide
d by the people in their sovereign capacity, or in regard to which full discreti
onary authority has been delegated to the legislative or executive branch of gov
ernment.h2 They have two aspects: (1) those matters that are to be exercised by t
he people in their primary political capacity and (2) matters which have been sp
ecifically delegated to some other department or particular office of the govern
ment, with discretionary power to act.3 The exercise of the discretionary power
of the legislative or executive branch of government was often the area where th
e Court had to wrestle with the political question doctrine.4
A brief review of some of our case law will thus give us a sharper perspective o
f the political question doctrine. This question confronted the Court as early
as 1905 in the case of Barcelon v. Baker.5 The Governor-General of the Philippin
e Islands, pursuant to a resolution of the Philippine Commission, suspended the
privilege of the writ of habeas corpus in Cavite and Batangas based on a finding
of open insurrection in said provinces. Felix Barcelon, who was detained by co
nstabulary officers in Batangas, filed a petition for the issuance of a writ of
habeas corpus alleging that there was no open insurrection in Batangas. The iss
ue to resolve was whether or not the judicial department may investigate the fac
ts upon which the legislative (the Philippine Commission) and executive (the Gov
ernor-General) branches of government acted in suspending the privilege of the w
rit.
The Court ruled that under our form of government, one department has no authori
ty to inquire into the acts of another, which acts are performed within the disc
retion of the other department.6 Surveying American law and jurisprudence, it he
ld that whenever a statute gives discretionary power to any person, to be exerci
sed by him upon his own opinion of certain facts, the statute constitutes him th
e sole judge of the existence of those facts.7 Since the Philippine Bill of 1902
empowered the Philippine Commission and the Governor-General to suspend the pri
vilege of the writ of habeas corpus, this power is exclusively within the discre
tion of the legislative and executive branches of government. The exercise of t
his discretion is conclusive upon the courts.8
The Court further held that once a determination is made by the executive and le
gislative departments that the conditions justifying the assailed acts exists, i
t will presume that the conditions continue until the same authority decide that
they no longer exist.9 It adopted the rationale that the executive branch, thru
its civil and military branches, are better situated to obtain information abou
t peace and order from every corner of the nation, in contrast with the judicial
department, with its very limited machinery.10 The seed of the political questi
on doctrine was thus planted in Philippine soil.
The doctrine barring judicial review because of the political question doctrine
was next applied to the internal affairs of the legislature. The Court refused
to interfere in the legislative exercise of disciplinary power over its own memb
ers. In the 1924 case of Alejandrino v. Quezon,11 Alejandrino, who was appointe
d Senator by the Governor-General, was declared by Senate Resolution as guilty o
f disorderly conduct for assaulting another Senator in the course of a debate, a
nd was suspended from office for one year. Senator Alejandrino filed a petition
for mandamus and injunction to compel the Senate to reinstate him. The Court h
eld that under the Jones Law, the power of the Senate to punish its members for
disorderly behavior does not authorize it to suspend an appointive member from t
he exercise of his office. While the Court found that the suspension was illega
l, it refused to issue the writ of mandamus on the ground that "the Supreme Cour
t does not possess the power of coercion to make the Philippine Senate take any
particular action. [T]he Philippine Legislature or any branch thereof cannot be
directly controlled in the exercise of their legislative powers by any judicial
process."12
The issue revisited the Court twenty-two (22) years later. In 1946, in Vera v.
Avelino,13 three senators-elect who had been prevented from taking their oaths o
f office by a Senate resolution repaired to this Court to compel their colleague
s to allow them to occupy their seats contending that only the Electoral Tribuna
l had jurisdiction over contests relating to their election, returns and qualifi
cations. Again, the Court refused to intervene citing Alejandrino and affirmed
the inherent right of the legislature to determine who shall be admitted to its
membership.
In the 1947 case of Mabanag v. Lopez-Vito,14 three Senators and eight representa
tives who were proclaimed elected by Comelec were not allowed by Congress to tak
e part in the voting for the passage of the Parity amendment to the Constitution
. If their votes had been counted, the affirmative votes in favor of the propos
ed amendment would have been short of the necessary three-fourths vote in either
House of Congress to pass the amendment. The amendment was eventually submitte
d to the people for ratification. The Court declined to intervene and held that
a proposal to amend the Constitution is a highly political function performed b
y Congress in its sovereign legislative capacity.15
In the 1955 case of Arnault v. Balagtas,16 petitioner, a private citizen, assail
ed the legality of his detention ordered by the Senate for his refusal to answer
questions put to him by members of one of its investigating committees. This C
ourt refused to order his release holding that the process by which a contumacio
us witness is dealt with by the legislature is a necessary concomitant of the le
gislative process and the legislature's exercise of its discretionary authority
is not subject to judicial interference.
In the 1960 case of Osmena v. Pendatun,17 the Court followed the traditional lin
e. Congressman Sergio Osmena, Jr. was suspended by the House of Representatives
for serious disorderly behavior for making a privilege speech imputing "maliciou
s charges" against the President of the Philippines. Osmena, Jr. invoked the po
wer of review of this Court but the Court once more did not interfere with Congr
ess' power to discipline its members.
The contours of the political question doctrine have always been tricky. To be
sure, the Court did not always stay its hand whenever the doctrine is invoked.
In the 1949 case of Avelino v. Cuenco,18 Senate President Jose Avelino, who was
deposed and replaced, questioned his successor's title claiming that the latter
had been elected without a quorum. The petition was initially dismissed on the g
round that the selection of Senate President was an internal matter and not subj
ect to judicial review.19 On reconsideration, however, the Court ruled that it c
ould assume jurisdiction over the controversy in light of subsequent events just
ifying intervention among which was the existence of a quorum.20 Though the peti
tion was ultimately dismissed, the Court declared respondent Cuenco as the legal
ly elected Senate President.
In the 1957 case of Tanada v. Cuenco,21 the Court assumed jurisdiction over a di
spute involving the formation and composition of the Senate Electoral Tribunal.
It rejected the Solicitor General's claim that the dispute involved a political
question. Instead, it declared that the Senate is not clothed with "full discre
tionary authority" in the choice of members of the Senate Electoral Tribunal and
the exercise of its power thereon is subject to constitutional limitations whic
h are mandatory in nature.22 It held that under the Constitution, the membership
of the Senate Electoral Tribunal was designed to insure the exercise of judicia
l impartiality in the disposition of election contests affecting members of the
lawmaking body.23 The Court then nullified the election to the Senate Electoral
Tribunal made by Senators belonging to the party having the largest number of vo
tes of two of their party members but purporting to act on behalf of the party h
aving the second highest number of votes.
In the 1962 case of Cunanan v. Tan, Jr.,24 the Court passed judgment on whether
Congress had formed the Commission on Appointments in accordance with the Consti
tution and found that it did not. It declared that the Commission on Appointmen
ts is a creature of the Constitution and its power does not come from Congress b
ut from the Constitution.
The 1967 case of Gonzales v. Comelec25 and the 1971 case of Tolentino v. Comelec
26 abandoned Mabanag v. Lopez-Vito. The question of whether or not Congress, ac
ting as a constituent assembly in proposing amendments to the Constitution viola
tes the Constitution was held to be a justiciable and not a political issue. In
Gonzales, the Court ruled:
"It is true that in Mabanag v. Lopez-Vito, this Court characterizing the issue s
ubmitted thereto as a political one, declined to pass upon the question whether
or not a given number of votes cast in Congress in favor of a proposed amendment
to the Constitution-which was being submitted to the people for ratification-sa
tisfied the three-fourths vote requirement of the fundamental law. The force of
this precedent has been weakened, however, by Suanes v. Chief Accountant of the
Senate, Avelino v. Cuenco, Tanada v. Cuenco, and Macias v. Commission on Electi
ons. In the first, we held that the officers and employees of the Senate Electo
ral Tribunal are under its supervision and control, not of that of the Senate Pr
esident, as claimed by the latter; in the second, this Court proceeded to determ
ine the number of Senators necessary for a quorum in the Senate; in the third, w
e nullified the election, by Senators belonging to the party having the largest
number of votes in said chamber, purporting to act on behalf of the party having
the second largest number of votes therein, of two (2) Senators belonging to th
e first party, as members, for the second party, of the Senate Electoral Tribuna
l; and in the fourth, we declared unconstitutional an act of Congress purporting
to apportion the representative districts for the House of Representatives upon
the ground that the apportionment had not been made as may be possible accordin
g to the number of inhabitants of each province. Thus, we rejected the theory,
advanced in these four cases, that the issues therein raised were political ques
tions the determination of which is beyond judicial review.h27
The Court explained that the power to amend the Constitution or to propose amend
ments thereto is not included in the general grant of legislative powers to Cong
ress. As a constituent assembly, the members of Congress derive their authority
from the fundamental law and they do not have the final say on whether their act
s are within or beyond constitutional limits.28 This ruling was reiterated in To
lentino which held that acts of a constitutional convention called for the purpo
se of proposing amendments to the Constitution are at par with acts of Congress
acting as a constituent assembly.29
In sum, this Court brushed aside the political question doctrine and assumed jur
isdiction whenever it found constitutionally-imposed limits on the exercise of p
owers conferred upon the Legislature.30
The Court hewed to the same line as regards the exercise of Executive power. Th
us, the respect accorded executive discretion was observed in Severino v. Govern
or-General,31 where it was held that the Governor-General, as head of the execut
ive department, could not be compelled by mandamus to call a special election in
the town of Silay for the purpose of electing a municipal president. Mandamus
and injunction could not lie to enforce or restrain a duty which is discretionar
y. It was held that when the Legislature conferred upon the Governor-General po
wers and duties, it did so for the reason that he was in a better position to kn
ow the needs of the country than any other member of the executive department, a
nd with full confidence that he will perform such duties as his best judgment di
ctates.32
Similarly, in Abueva v. Wood,33 the Court held that the Governor-General could n
ot be compelled by mandamus to produce certain vouchers showing the various expe
nditures of the Independence Commission. Under the principle of separation of p
owers, it ruled that it was not intended by the Constitution that one branch of
government could encroach upon the field of duty of the other. Each department
has an exclusive field within which it can perform its part within certain discr
etionary limits.34 It observed that "the executive and legislative departments o
f government are frequently called upon to deal with what are known as political
questions, with which the judicial department of government has no intervention
. In all such questions, the courts uniformly refused to intervene for the purp
ose of directing or controlling the actions of the other department; such questi
ons being many times reserved to those departments in the organic law of the sta
te."35
In Forties v. Tiaco,36 the Court also refused to take cognizance of a case enjo
ining the Chief Executive from deporting an obnoxious alien whose continued pres
ence in the Philippines was found by him to be injurious to the public interest.
It noted that sudden and unexpected conditions may arise, growing out of the p
resence of untrustworthy aliens, which demand immediate action. The President's
inherent power to deport undesirable aliens is universally denominated as polit
ical, and this power continues to exist for the preservation of the peace and do
mestic tranquility of the nation.37
In Manalang v. Quitoriano,38 the Court also declined to interfere in the exercis
e of the President's appointing power. It held that the appointing power is the
exclusive prerogative of the President, upon which no limitations may be impose
d by Congress, except those resulting from the need of securing concurrence of t
he Commission on Appointments and from the exercise of the limited legislative p
ower to prescribe qualifications to a given appointive office.
We now come to the exercise by the President of his powers as Commander-in-Chief
vis-a-vis the political question doctrine. In the 1940's, this Court has held
that as Commander-in-Chief of the Armed Forces, the President has the power to d
etermine whether war, in the legal sense, still continues or has terminated. It
ruled that it is within the province of the political department and not of the
judicial department of government to determine when war is at end.39
In 1952, the Court decided the landmark case of Montenegro v. Castaneda.40 Presi
dent Quirino suspended the privilege of the writ of habeas corpus for persons de
tained or to be detained for crimes of sedition, insurrection or rebellion. The
Court, citing Barcelon, declared that the authority to decide whether the exige
ncy has arisen requiring the suspension of the privilege belongs to the Presiden
t and his decision is final and conclusive on the courts.41
Barcelon was the ruling case law until the 1971 case of Lansang v. Garcia came.4
2 Lansang reversed the previous cases and held that the suspension of the privil
ege of the writ of habeas corpus was not a political question. According to the
Court, the weight of Barcelon was diluted by two factors: (1) it relied heavily
on Martin v. Mott, which involved the U.S. President's power to call out the mi
litia which is a much broader power than suspension of the privilege of the writ
; and (2) the privilege was suspended by the American Governor-General whose act
, as representative of the sovereign affecting the freedom of its subjects, coul
d not be equated with that of the President of the Philippines dealing with the
freedom of the sovereign Filipino people.
The Court declared that the power to suspend the privilege of the writ of habeas
corpus is neither absolute nor unqualified because the Constitution sets limits
on the exercise of executive discretion on the matter. These limits are: (1) t
hat the privilege must not be suspended except only in cases of invasion, insurr
ection or rebellion or imminent danger thereof; and (2) when the public safety r
equires it, in any of which events the same may be suspended wherever during suc
h period the necessity for the suspension shall exist. The extent of the power
which may be inquired into by courts is defined by these limitations.43
On the vital issue of how the Court may inquire into the President's exercise of
power, it ruled that the function of the Court is not to supplant but merely to
check the Executive; to ascertain whether the President has gone beyond the con
stitutional limits of his jurisdiction, not to exercise the power vested in him
or to determine the wisdom of his act. Judicial inquiry is confined to the ques
tion of whether the President did not act arbitrarily.44 Using this yardstick, t
he Court found that the President did not.
The emergency period of the 1970's flooded the Court with cases which raised the
political question defense. The issue divided the Court down the middle. Jave
llana v. Executive Secretary45 showed that while a majority of the Court held th
at the issue of whether or not the 1973 Constitution had been ratified in accord
ance with the 1935 Constitution was justiciable, a majority also ruled that the
decisive issue of whether the 1973 Constitution had come into force and effect,
with or without constitutional ratification, was a political question.46
The validity of the declaration of martial law by then President Marcos was next
litigated before the Court. In Aquino, Jr. v. Enrile,47 it upheld the Presiden
t's declaration of martial law. On whether the validity of the imposition of ma
rtial law was a political or justiciable question, the Court was almost evenly d
ivided. One-half embraced the political question position and the other half su
bscribed to the justiciable position in Lansang. Those adhering to the politica
l question doctrine used different methods of approach to it.48
In 1983, the Lansang ruling was weakened by the Court in Garcia-Padilla v. Enril
e.49 The petitioners therein were arrested and detained by the Philippine Consta
bulary by virtue of a Presidential Commitment Order (PCO). Petitioners sought t
he issuance of a writ of habeas corpus. The Court found that the PCO had the fu
nction of validating a person's detention for any of the offenses covered in Pro
clamation No. 2045 which continued in force the suspension of the privilege of t
he writ of habeas corpus. It held that the issuance of the PCO by the President
was not subject to judicial inquiry.50 It went further by declaring that there
was a need to re-examine Lansang with a view to reverting to Barcelon and Monten
egro. It observed that in times of war or national emergency, the President mus
t be given absolute control for the very life of the nation and government is in
great peril. The President, it intoned, is answerable only to his conscience,
the people, and God.51
But barely six (6) days after Garcia-Padilla, the Court promulgated Morales, Jr.
v. Enrile52 reiterating Lansang. It held that by the power of judicial review,
the Court must inquire into every phase and aspect of a person's detention from
the moment he was taken into custody up to the moment the court passes upon the
merits of the petition. Only after such a scrutiny can the court satisfy itsel
f that the due process clause of the Constitution has been met.53
It is now history that the improper reliance by the Court on the political quest
ion doctrine eroded the people's faith in its capacity to check abuses committed
by the then Executive in the exercise of his commander-in-chief powers, particu
larly violations against human rights. The refusal of courts to be pro-active i
n the exercise of its checking power drove the people to the streets to resort t
o extralegal remedies. They gave birth to EDSA.
Two lessons were not lost to the members of the Constitutional Commission that d
rafted the 1987 Constitution. The first was the need to grant this Court the ex
press power to review the exercise of the powers as commander-in-chief by the Pr
esident and deny it of any discretion to decline its exercise. The second was t
he need to compel the Court to be pro-active by expanding its jurisdiction and,
thus, reject its laid back stance against acts constituting grave abuse of discr
etion on the part of any branch or instrumentality of government. Then Chief Jus
tice Roberto Concepcion, a member of the Constitutional Commission, worked for t
he insertion of the second paragraph of Section 1, Article VIII in the draft Con
stitution,54 which reads:
"Sec. 1. x x x.
Judicial power includes the duty of the courts of justice to settle actual contr
oversies involving rights which are legally demandable and enforceable, and to d
etermine whether or not there has been a grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of any branch or instrumentality of t
he Government."
The language of the provision clearly gives the Court the power to strike down a
cts amounting to grave abuse of discretion of both the legislative and executive
branches of government.
We should interpret Section 18, Article VII of the 1987 Constitution in light of
our constitutional history. The provision states:
"Sec. 18. The President shall be the Commander-in-Chief of all armed forces of
the Philippines and whenever it becomes necessary, he may call out such armed fo
rces to prevent or suppress lawless violence, invasion or rebellion. In case of
invasion or rebellion, when the public safety requires it, he may, for a period
not exceeding sixty days, suspend the privilege of the writ of habeas corpus or
place the Philippines or any part thereof under martial law. Within forty-eigh
t hours from the proclamation of martial law or the suspension of the privilege
of the writ of habeas corpus, the President shall submit a report in person or i
n writing to Congress. The Congress, voting jointly, by a vote of at least a ma
jority of all its Members in regular or special session, may revoke such proclam
ation or suspension, which revocation shall not be set aside by the President.
Upon the initiative of the President, the Congress may, in the same manner, exte
nd such proclamation or suspension for a period to be determined by Congress, if
the invasion or rebellion shall persist and public safety requires it.
The Congress, if not in session, shall, within twenty-four hours following such
proclamation or suspension, convene in accordance with its rules without need of
a call.
The Supreme Court may review, in an appropriate proceeding filed by any citizen,
the sufficiency of the factual basis of the proclamation of martial law or the
suspension of the privilege of the writ or the extension thereof, and must promu
lgate its decision thereon within thirty days from its filing.
x x x."
It is clear from the foregoing that the President, as Commander-in-Chief of the
armed forces of the Philippines, may call out the armed forces subject to two co
nditions: (1) whenever it becomes necessary; and (2) to prevent or suppress lawl
ess violence, invasion or rebellion. Undeniably, these conditions lay down the
sine qua requirement for the exercise of the power and the objective sought to b
e attained by the exercise of the power. They define the constitutional parame
ters of the calling out power. Whether or not there is compliance with these pa
rameters is a justiciable issue and is not a political question.
I am not unaware that in the deliberations of the Constitutional Commission, Com
missioner Bernas opined that the President's exercise of the "calling out power,
" unlike the suspension of the privilege of the writ of habeas corpus and the de
claration of martial law, is not a justiciable issue but a political question an
d therefore not subject to judicial review.
It must be borne in mind, however, that while a member's opinion expressed on th
e floor of the Constitutional Convention is valuable, it is not necessarily expr
essive of the people's intent.55 The proceedings of the Convention are less conc
lusive on the proper construction of the fundamental law than are legislative pr
oceedings of the proper construction of a statute, for in the latter case it is
the intent of the legislature the courts seek, while in the former, courts seek
to arrive at the intent of the people through the discussions and deliberations
of their representatives.56 The conventional wisdom is that the Constitution doe
s not derive its force from the convention which framed it, but from the people
who ratified it, the intent to be arrived at is that of the people.57
It is true that the third paragraph of Section 18, Article VII of the 1987 Const
itution expressly gives the Court the power to review the sufficiency of the fac
tual bases used by the President in the suspension of the privilege of the writ
of habeas corpus and the declaration of martial law. It does not follow, howeve
r, that just because the same provision did not grant to this Court the power to
review the exercise of the calling out power by the President, ergo, this Court
cannot pass upon the validity of its exercise.
Given the light of our constitutional history, this express grant of power merel
y means that the Court cannot decline the exercise of its power because of the p
olitical question doctrine as it did in the past. In fine, the express grant si
mply stresses the mandatory duty of this Court to check the exercise of the comm
ander-in-chief powers of the President. It eliminated the discretion of the Cou
rt not to wield its power of review thru the use of the political question doctr
ine.
It may be conceded that the calling out power may be a "lesser power" compared t
o the power to suspend the privilege of the writ of habeas corpus and the power
to declare martial law. Even then, its exercise cannot be left to the absolute
discretion of the Chief Executive as Commander-in-Chief of the armed forces, as
its impact on the rights of our people protected by the Constitution cannot be d
owngraded. We cannot hold that acts of the commander-in-chief cannot be reviewe
d on the ground that they have lesser impact on the civil and political rights o
f our people. The exercise of the calling out power may be "benign" in the case
at bar but may not be so in future cases.
The counsel of Mr. Chief Justice Enrique M. Fernando, in his Dissenting and Con
curring Opinion in Lansang that it would be dangerous and misleading to push the
political question doctrine too far, is apropos. It will not be complementary t
o the Court if it handcuffs itself to helplessness when a grievously injured cit
izen seeks relief from a palpably unwarranted use of presidential or military po
wer, especially when the question at issue falls in the penumbra between the "po
litical" and the "justiciable. "58
We should not water down the ruling that deciding whether a matter has been comm
itted by the Constitution to another branch of government, or whether the action
of that branch exceeds whatever authority has been committed, is a delicate exe
rcise in constitutional interpretation, and is a responsibility of the Court as
ultimate interpreter of the fundamental law.59 When private justiciable rights a
re involved in a suit, the Court must not refuse to assume jurisdiction even tho
ugh questions of extreme political importance are necessarily involved.60 Every
officer under a constitutional government must act according to law and subject
to the controlling power of the people, acting through the courts, as well as th
rough the executive and legislative. One department is just as representative o
f the other, and the judiciary is the department which is charged with the speci
al duty of determining the limitations which the law places upon all official ac
tion.61 This historic role of the Court is the foundation stone of a government
of laws and not of men.62
I join the Decision in its result.
SEPARATE OPINION
VITUG, J.:
In the equation of judicial power, neither of two extremes - one totalistic and
the other bounded - is acceptable nor ideal. The 1987 Constitution has introduc
ed its definition of the term "judicial power" to be that which -
gx x x includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine
whether or not there has been grave abuse of discretion amounting to lack or exc
ess of jurisdiction on the part of any branch or instrumentality of the Governme
nt.h1
It is not meant that the Supreme Court must be deemed vested with the awesome po
wer of overseeing the entire bureaucracy, let alone of institutionalizing judici
al absolutism, under its mandate. But while this Court does not wield unlimited
authority to strike down an act of its two co-equal branches of government, it
must not wither under technical guise on its constitutionally ordained task to i
ntervene, and to nullify if need be, any such act as and when it is attended by
grave abuse of discretion amounting to lack or excess of jurisdiction. The pros
cription then against an interposition by the Court into purely political questi
ons, heretofore known, no longer holds within that context.
Justice Feria, in the case of Avelino vs. Cuenco,2 has aptly elucidated in his c
oncurring opinion:
"x x x [I] concur with the majority that this Court has jurisdiction over cases
like the present x x x so as to establish in this country the judicial supremacy
, with the Supreme Court as the final arbiter, to see that no one branch or agen
cy of the government transcends the Constitution, not only in justiceable but po
litical questions as well."3
It is here when the Court must have to depart from the broad principle of separa
tion of powers that disallows an intrusion by it in respect to the purely politi
cal decisions of its independent and coordinate agencies of government.
The term grave abuse of discretion is long understood in our jurisprudence as b
eing, and confined to, a capricious and whimsical or despotic exercise of judgme
nt amounting to lack or excess of jurisdiction. Minus the not-so-unusual exagge
rations often invoked by litigants in the duel of views, the act of the Presiden
t in simply calling on the Armed Forces of the Philippines, an executive preroga
tive, to assist the Philippine National Police in "joint visibility patrols" in
the metropolis does not, I believe, constitute grave abuse of discretion that wo
uld now warrant an exercise by the Supreme Court of its extraordinary power as s
o envisioned by the fundamental law.
Accordingly, I vote for the dismissal of the petition.
MENDOZA, J., concurring and dissenting:
I concur in the opinion of the Court insofar as it holds petitioner to be withou
t standing to question the validity of LOI 02/2000 which mandates the Philippine
Marines to conduct "joint visibility" patrols with the police in Metro Manila.
But I dissent insofar as the opinion dismisses the petition in this case on oth
er grounds. I submit that judgment on the substantive constitutional issues rai
sed by petitioner must await an actual case involving real parties with "injurie
s" to show as a result of the operation of the challenged executive action. Whi
le as an organization for the advancement of the rule of law petitioner has an i
nterest in upholding the Constitution, its interest is indistinguishable from th
e interest of the rest of the citizenry and falls short of that which is necessa
ry to give petitioner standing.
As I have indicated elsewhere, a citizens' suit challenging the constitutionalit
y of governmental action requires that (1) the petitioner must have suffered an
"injury in fact" of an actual or imminent nature; (2) there must be a causal con
nection between the injury and the conduct complained of; and (3) the injury is
likely to be redressed by a favorable action by this Court.1 The "injury in fact
" test requires more than injury to a cognizable interest. It requires that the
party seeking review be himself among those injured.2
My insistence on compliance with the standing requirement is grounded in the con
viction that only a party injured by the operation of the governmental action ch
allenged is in the best position to aid the Court in determining the precise nat
ure of the problem presented. Many a time we have adverted to the power of judi
cial review as an awesome power not to be exercised save in the most exigent sit
uation. For, indeed, sound judgment on momentous constitutional questions is no
t likely to be reached unless it is the result of a clash of adversary arguments
which only parties with direct and specific interest in the outcome of the cont
roversy can make. This is true not only when we strike down a law or official a
ction but also when we uphold it.
In this case, because of the absence of parties with real and substantial intere
st to protect, we do not have evidence on the effect of military presence in mal
ls and commercial centers, i.e., whether such presence is coercive or benign. W
e do not know whether the presence of so many marines and policemen scares shopp
ers, tourists, and peaceful civilians, or whether it is reassuring to them. To
be sure, the deployment of troops to such places is not like parading them at th
e Luneta on Independence Day. Neither is it, however, like calling them out bec
ause of actual fighting or the outbreak of violence.
We need to have evidence on these questions because, under the Constitution, the
President's power to call out the armed forces in order to suppress lawless vio
lence, invasion or rebellion is subject to the limitation that the exercise of t
his power is required in the interest of public safety.3
Indeed, whether it is the calling out of the armed forces alone in order to supp
ress lawless violence, invasion or rebellion or also the suspension of the privi
lege of the writ of habeas corpus or the proclamation of martial law (in case of
invasion or rebellion), the exercise of the President's powers as commander-in-
chief, requires proof - not mere assertion.4 As has been pointed out, "Standing
is not `an ingenious academic exercise in the conceivable' . . . but requires .
. . a factual showing of perceptible harm."5
Because of the absence of such record evidence, we are left to guess or even spe
culate on these questions. Thus, at one point, the majority opinion says that w
hat is involved here is not even the calling out of the armed forces but only th
e use of marines for law enforcement. (p. 13) At another point, however, the ma
jority opinion somersaults and says that because of bombings perpetrated by lawl
ess elements, the deployment of troops in shopping centers and public utilities
is justified. (p. 24)
We are likely to err in dismissing the suit brought in this case on the ground t
hat the calling out of the military does not violate the Constitution, just as w
e are likely to do so if we grant the petition and invalidate the executive issu
ance in question. For indeed, the lack of a real, earnest and vital controversy
can only impoverish the judicial process. That is why, as Justice Laurel empha
sized in the Angara case, "this power of judicial review is limited to actual ca
ses and controversies to be exercised after full opportunity of argument by the
parties, and limited further to the constitutional question raised or the very l
is mota presented."6
We are told, however, that the issues raised in this case are of "paramount inte
rest" to the nation. It is precisely because the issues raised are of paramount
importance that we should all the more forego ruling on the constitutional issu
es raised by petitioner and limit the dismissal of this petition on the ground o
f lack of standing of petitioner. A Fabian policy of leaving well enough alone
is a counsel of prudence.
For these reasons and with due appreciation of the scholarly attention lavished
by the majority opinion on the constitutional questions raised, I am constrained
to limit my concurrence to the dismissal of this suit on the ground of lack of
standing of petitioner and the consequent lack of an actual case or controversy.
1 Sec. 1, Article VIII, 1987 Constitution.
2 Tanada v. Cuenco, 103 Phil. 1051, 1067 [1957], citing 16 C.J.S. 413.
3 Tanada v. Cuenco, supra, 1067, quoting In re McConaughy, 119 NW 408 [1909].
4 Bernas, The 1987 Constitution of the Republic of the Philippines A Commentary
, p. 859 [1996].
5 5 Phil. 87 [1905].
6 Id. at 97.
7 Id. at 104.
8 See Cruz, Philippine Political law, p. 87 [1998].
9 Id. at 113-114.
10 Id. at 106-107.
11 46 Phil. 83 [1924].
12 Id. at 97.
13 77 Phil. 192 [1946].
14 78 Phil. 1 [1947].
15 Id. at 4-5. The court also adopted the enrolled bill theory which, like fin
dings under the political question doctrine, gimports absolute verity on the cour
tsh-at 12.
16 97 Phil. 358 [1955].
17 109 Phil. 863 [1960].
18 83 Phil. 17 [1949].
19 Id. at 21-22.
20 Id. at 68-69.
21 103 Phil. 1051 [1957].
22 Id. at 1068.
23 Id. at 1083.
24 5 SCRA 1 [1962].
25 21 SCRA 774 [1967].
26 41 SCRA 702 [1971].
27 Id. at 785-786.
28 Id. at 787.
29 41 SCRA at 713.
30 Bernas, The 1987 Constitution of the Republic of the Philippines A Commentar
y, p. 861 [1996].
31 16 Phil. 366 [1910].
32 Id. at 401.
33 45 Phil. 612 [1924].
34 Id. At 630.
35 Id. at 637-638.
36 16 Phil. 534 [1910].
37 Id. at 568-569, 576.
38 94 Phil. 903 [1954].
39 Untal v. Chief of Staff, AFP, 84 Phil. 586 [1949]; Raquiza v. Bradford, 75 P
hil. 50 [1945].
40 91 Phil. 882 [1952].
41 Id. at 887.
42 42 SCRA 448 [1971].
43 Id. at 474.
44 Id. at 480-481.
45 50 SCRA 30 [1973].
46 Id. at 138, 140-141.
47 59 SCRA 183 [1973].
48 Ibid.
49 121 SCRA 472 [1983].
50 Id. at 490-491.
51 Id. at 500-501.
52 121 SCRA 538 [1983].
53 Id. at 563.
54 See Concepcionfs sponsorship speech, I Record 434-435; see also Bernas, the C
onstitution of the Republic of the Philippines A Commentary, p. 863 [1996].
55 J.M. Tuason & Co., Inc. v. Land Tenure Administration, 31 SCRA 413, 423-426
[1970].
56 Vera v. Avelino, 77 Phil. 192, 215 [1946]; see also Agpalo, Statutory Constr
uction, 4th ed., p. 454 [1998].
57 Black, Handbook on the Construction and Interpretation of the laws, 2d ed.,
p. 39 [1911].
58 SCRA at 506-507, see also Rossiter, The Supreme Court and the Commander-in-C
hief, pp. 16-17 [1951].
59 Baker v. Carr, 7 L Ed 2d at 682.
60 Willoughby on the Constitution of the United States, vol. 3, 2d ed., p. 1336
[1929].
61 Tanada v. Macapagal, 103 Phil. At 1067, quoting In re McConaughy, 119 NW 408
[1909].
62 Id.
1 Section 1, Article VIII of the Constitution.
2 83 Phil. 17.
3 Sen. Miriam Defensor Santiago, et al. vs. Sen. Teofisto Guingona, Jr., et al.
, 298 SCRA 756.
1 Tatad v. Garcia, 243 SCRA 436, 473 (1995) (concurring). Accord, Telecommunica
tion and Broadcast Attorneys of the Philippines v. COMELEC, 289 SCRA 343 (1998).
2 Lujan v. Defenders of Wildlife, 504 U.S. 555, 119 L. Ed. 2d 351 (1992).
3 See CONST., ART. VII, 18.
4 See Lansang v. Garcia, 42 SCRA 448 (1971).
5 Lujan v. Defenders of Wildlife, supra.
6 Angara v. Electoral Commission, 63 Phil. 139, 158 (1936)
[1] Rollo, pp. 17-21.
[2] As of 19 May 2000, the Marines have been recalled from their areas of deploy
ment to join the military operations in Mindanao, and replaced by Air Force pers
onnel who took over their functions in the joint visibility patrols. The Air Fo
rce personnel, just like the Marines, were ordered to assist the PNP, also by vi
rtue of LOI 2/2000. Since both the Marines and Air Force belong to the Armed Fo
rces, the controversy has not been rendered moot and academic by the replacement
of the former by the latter. The validity of the deployment of the armed force
s in the joint visibility patrols thus remain an issue.
[3] Rollo, pp. 75-76.
[4] Id., at 75.
[5] Id.
[6] Id.
[7] Rollo, p. 75.
[8] Id., at 17-18.
[9] Id.
[10] Rollo, p. 7.
[11] Id., at 24.
[12] Philippine Constitution Association v. Enriquez, 235 SCRA 506 (1994) citing
Luz Farms v. Secretary of the Department of Agrarian Reform, 192 SCRA 51 (1990
); Dumlao v. Commission on Elections, 95 SCRA 392 (1980); and, People v. Vera, 6
5 Phil. 56 (1937).
[13] Joya v. Presidential Commission on Good Govenment, 225 SCRA 568, 576 (1993)
.
[14] Ibid., citing House International Building Tenants Association, Inc. v. Int
ermediate Appellate Court, 151 SCRA 703 (1987).
[15] Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7L. Ed. 2d 663, 678 (1962).
[16] Joya v. Presidential Commission on Good Government, supra note 13, at 579 c
iting Dumlao v. Commission on Elections, 95 SCRA 392 (1980).
[17] Tatad v. Secretary of the Department of Energy, 281 SCRA 330, 349 (1997) ci
ting Garcia v. Executive Secretary, 211 SCRA 219 (1992); Osmena v. COMELEC, 199
SCRA 750 (1991); Basco v. Pagcor, 197 SCRA 52 (1991); and, Araneta v. Dinglasan
, 84 Phil. 368 (1949).
[18] Santiago v. COMELEC, 270 SCRA 106 (1997); Joya v. Presidential Commission o
n Good Government, 225 SCRA 568 (1993); Daza v. Singson, 180 SCRA 496 (1989). A
s formulated by Mr. Justice (now Chief Justice) Hilario G. Davide, Jr. in Kilos
bayan, Inc. vs. Guingona, Jr., [232 SCRA 110 (1994)] "(a) party's standing befor
e this Court is a procedural technicality which it may, in the exercise of its d
iscretion, set aside in view of the importance of the issues raised," favorably
citing our ruling in the Emergency Powers Cases [L-2044 (Araneta v. Dinglasan);
L-2756 (Araneta v. Angeles); L-3054 (Rodriquez v. Tesorero de Filipinas); and L-
3056 (Barredo v. COMELEC), 84 Phil. 368 (1940)] where this Court brushed aside t
his technicality because "the transcendental importance to the public of these c
ases demands that they be settled promptly and definitely, brushing aside, if we
must, technical rules of procedure." An inflexible rule on locus standi would r
esult in what Mr. Justice Florentino P. Feliciano aptly described as a gdoctrinal
ball and chain xxx clamped on our own limbs." [Kilosbayan, Inc. v. Morato, 250
SCRA 130 (1995)].
[19] Rollo, p. 12
[20] Article II, Sections 4 and 5 of the Constitution provide:
Sec. 4. The prime duty of the Government is to serve and protect the people. T
he Government may call upon the people to defend the State and, in the fulfillme
nt thereof, all citizens may be required, under conditions provided by law, to
render personal, military or civil service.
Sec. 5. The maintenance of peace and order, the protection of life, liberty, a
nd property, and the promotion of the general welfare are essential for the enjo
yment by all the people of the blessings of democracy.
[21] 177 SCRA 668, 694 (1989).
[22] WESTfS LEGAL THESAURUS/DICTIONARY (Special Deluxe Edition) p. 440 (1986).
[23] 103 Phil. 1051 (1957).
[24] 369 U.S. 186, 82 S ct. 691, 7 L. Ed. 2d 663, 678 (1962).
[25] Article VIII, Sec. 1 of the 1987 CONSTITUTION.
[26] Santiago v. Guingona, Jr., 298 SCRA 756 (1998).
[27] Bengzon, Jr. v. Senate Blue Ribbon Committee, 203 SCRA 767 (1991).
[28] Marcos v. Manglapus,, supra note 21, see also Daza v. Singson, 180 SCRA
496 (1988); Coseteng v. Mitra, 187 SCRA 377 (1990).
[29] Sinon v. Civil Service Commission, 215 SCRA 410 (1992); See also Producer
s Bank v. NLRC, 165 SCRA 284 (1988); Litton Mills v. Galleon Trader, Inc., 163 S
CRA 494 (1988).
[30] Ledesma v. Court of Appeals, 278 SCRA 659 (1997).
[31] Bondoc v. Pineda, 201 SCRA 792 (1991).
[32] Drilon v. Lim, 235 SCRA 135 (1994).
[33] Sarmiento v. Mison, 156 SCRA 549 (1987).
[34] II RECORD OF THE CONSTITUTIONAL COMMISSION: PROCEEDINGS AND DEBATES, pp. 40
9, 412 (1986).
[35] Rollo, p. 75.
[36] Section 3, provides:
Civilian authority, is at all times, supreme over the military. The
Armed Forces of the Philippines is the protector of the people and the State.
Its goal is to secure the sovereignty of the State and the integrity of the nati
onal territory.
[37] No. 9 of the LOI provides: COORDINATING INSTRUCTIONS:
a. RD, NCRPO is designated as Task Force Commander gTULUNGANh.
[38] No. 6 of the LOI states: DEPLOYMENT/EMPLOYMENT OF JOINT NCRPO-PHILIPPINE MA
RINES:
b. Before their deployment/employment, receiving units shall properly brief/orie
nt the troops on police patrol/visibility procedures.
[39] No. 8 of the LOI provides: TASKS:
k. POLICE DISTRICTS/STATIONS
-Provide direction and manage the deployment of all Philippine Marines personnel
deployed in your AOR for police visibility operations.
-Conduct briefing/orientation to Philippine Marinesf personnel on the dofs and donf
ts of police visibility patrols.
-Provide transportation to Philippine Marines from districts headquarters to dif
ferent stations and PCPs.
-Perform other tasks as directed.
[40] No. 8 of the LOI states: TASKS:
c. RLD/R4
-Coordinate with the Directorate for Logistics for the issuance of the following
equipments (sic) to be utilize (sic) by the Philippine Marines personnel: 500 p
ieces Probaton, 500 whistle (sic), 500 pieces brazzard blazoned.
-Coordinate with the Directorate for Logistics for the issuance of the following
for use of PNP personnel involved in the visibility patrol operations:
1,000 sets of PNP GOA Uniform
500 each raincoats
500 each Probaton
500 each Whistle
500 each handcuffs
500 each Combat Boots
500 each low cut shoes
-Provide transportation to the Philippine Marines personnel in coordination with
LSS, NHQ PNP.
-Provide additional gas allocation to Philippine Marinesf members of the Inspecti
on Teams.
- Perform other tasks as directed.40
[41] Sec. 5(4), Article XVI, provides:
No member of the Armed Forces in the active service shall, at any ti
me, be appointed in the government including government-owned and controlled cor
porations or any of their subsidiaries.
[42] CONSTITUTION, Article IX-C, Section 2; Comelec Resolution No. 3071 (1999),
which is entitled gIn Re Guidelines for the Designation of Registration Centers a
nd the Accountable Officers for the Polaroid Instant Cameras for Purposes of the
Registration of Voters on 8-9 May 1999 in the Autonomous Region in Muslim Minda
nao;h Comelec Resolution No. 3059 (1999), which is entitled, gIn the Matter of
Deputizing the Armed Forces of the Philippines and the Three (3) AFP Components,
Namely: Philippine Army, Philippine Navy and Philippine Air Force, for the Pur
pose of Ensuring Free, Orderly, Honest and Peaceful Precinct Mapping, Registrati
on of Voters and the Holding of the September 13, 1999 Elections in the Autonomo
us Region in Muslim Mindanao (ARMM);h Republic Act No. 7166 (1991), Section 33,
which is entitled gAn Act Providing for Synchronized National and Local Elections
and for Electoral Reforms, Authorizing Appropriations therefor, and for other P
urposes;h Administrative Code of 1987, Book V, Title I, Subtitle C, Chapter 1, Se
ctions 2 (4) and 3; Batas Pambansa Blg. 881, Article VI, Sections 52 (b) and 57
(3) (1985), which is also known as gOmnibus Election Code.h
[43] Republic Act No. 95 (1947), Section 5, which is entitled gAn Act to Incorpor
ate the Philippine National Red Cross Section;h Republic Act No. 855 (1953), Sec
tion 1, which is entitled gAn Act to Amend Section V of Republic Act Numbered Nin
ety-Five, entitled gAn Act to Incorporate the Philippine National Red Cross.h
[44] Republic Act No. 7077 (1991), Article III, Section 7, which is entitled gAn
Act Providing for the Development, Administration, Organization, Training, Maint
enance and Utilization of the Citizen Armed Forces of the Armed Forces of the Ph
ilippines and for other Purposes.h
[45] Republic Act No. 6847 (1990), Section 7, which is entitled gAn Act Creating
and Establishing The Philippine Sports Commission, Defining its Powers, Function
s and Responsibilities, Appropriating Funds therefor, and for other Purposes.h
[46] Republic Act No. 8492 (1998), Section 20, which is entitled gAn Act Establis
hing a National Museum System, Providing for its Permanent Home and for other Pu
rposes.h
[47] Republic Act No. 8550 (1998), Section 124, which is entitled gAn Act Providi
ng for the Development, Management and Conservation of the Fisheries and Aquatic
Resources, Integrating All Laws Pertinent Thereto, and for other Purposes;h Mem
orandum Circular No. 150 (1996), which is entitled gAmending Memorandum Circular
No. 128, dated July 20, 1995 by Reorganizing the Presidential Task Force on Tubb
ataha Reef National Marine Park;h Executive Order No. 544 (1979), Letter I, whic
h is entitled gCreating a Presidential Committee for the Conservation of the Tama
raw, Defining its Powers and for other Purposes.h
[48] Executive Order No. 129-A (1987) Section 5 (m), which is entitled gModifyin
g Executive Order No. 129 Reorganizing and Strengthening the Department of Agrar
ian Reform and for other Purposes.h
[49] Republic Act No. 1937 (1957), Section 2003, which is entitled gAn Act to Rev
ised and Codify the Tariff and Customs Laws of the Philippines;h Executive Order
No. 45 (1998), which is entitled gCreating a Presidential Anti-Smuggling Task For
ce to Investigate and Prosecute Crimes Involving Large-Scale Smuggling and other
Frauds upon Customs and Providing Measures to Expedite Seizure Proceedings;h
[50] These cases involved joint military and civilian law enforcement operations
: People v. Escalante, G.R No. 106633, December 1, 1994; People v. Bernardo, G.R
. No. 97393, March 17, 1993; People v. De la Cruz, G.R. No. 83260, April 18, 199
0; Guanzon v. de Villa, 181 SCRA 623, 631 (1990). (This case recognizes the com
plementary roles of the PNP and the military in conducting anti-crime campaigns,
provided that the peoplefs rights are not violated in these words: gIf the mili
tary and the police must conduct concerted campaigns to flush out and catch crim
inal elements, such drives must be consistent with the constitutional and statut
ory rights of all people affected by such actions.h The creation of the Task For
ce also finds support in Valmonte v. de Villa, 185 SCRA 665 (1990). Executive O
rder No. 62 (1999), which is entitled gCreating the Philippine Center on Transnat
ional Crime to Formulate and Implement a Concerted Program of Action of All Law
Enforcement, Intelligence and other Agencies for the Prevention and Control of T
ransnational Crime;h Executive Order No. 8 (1998), which is entitled gCreating a P
residential Anti-Organized Crime Commission and a Presidential Anti-Organized Cr
ime Task Force, to Investigate and Prosecute Criminal Elements in the Country;h E
xecutive Order No. 280 (1995), which is entitled gCreating a Presidential Task Fo
rce of Intelligence and Counter-Intelligence to Identify, Arrest and Cause the I
nvestigation and Prosecution of Military and other Law Enforcement Personnel on
their Former Members and Their Cohorts Involved in Criminal Activities.h
[51] Memorandum Circular No. 141 (1996), which is entitled gEnjoining Government
Agencies Concerned to Extend Optimum Support and Assistance to the Professional
Regulation Commission in its Conduct of Licensure Examinations.h
[52] Memorandum Circular No. 32 (1999), which is entitled gDirecting the Governme
nt Agencies Concerned to Extend Maximum Support and Assistance to the National E
ducational Testing and Research Center (NETRC) of the Department of Education, C
ulture and Sports (DECS) in the Conduct of Tests of National Coverage.h
[53] Executive Order No. 61 (1999), which is entitled gCreating the National Drug
Law Enforcement and Prevention Coordinating Center to Orchestrate Efforts of na
tional Government Agencies, Local Government Units, and Non-Government Organizat
ions for a More Effective Anti-Drug Campaign.h
[54] Republic Act No. 4089 (1964), which is entitled gAn Act Making the City
Health Officer of Bacolod City the Local Civil Registrar, Amending for the Purpo
se Section Forty-Three of the Charter of said City;" Republic Act No. 537 (1950)
, which is entitled "An Act to Revise the Charter of Quezon City;h Commonwealth
Act No. 592 (1940), which is entitled gAn Act to Create the City of Dansalan;h Co
mmonwealth Act No. 509 (1939), which is entitled gAn Act to Create Quezon City;h C
ommonwealth Act No. 326 (1938), which is entitled gAn Act Creating the City of Ba
colod;h Commonwealth Act No. 39 (1936), which is entitled gAn Act Creating the Cit
y of Zamboanga;h Commonwealth Act No. 51 (1936), which is entitled gAn Act Creatin
g the City of Davao.h
[55] Republic Act No. 36 (1946), which is entitled gCensus Act of Nineteen Hundr
ed and Forty-Six.h
[56] Republic Act No. 776 (1952), Section 5, which is entitled gAn Act to Reorgan
ize the Civil Aeronautics Board and the Civil Aeronautics Administration, To Pro
vide for the Regulation of Civil Aeronautics in the Philippines and Authorizing
the Appropriation of Funds Therefor.h
[57] Republic Act No. 6613 (1972), Section 4, which is entitled gAn Act Declaring
a Policy of the State to Adopt Modern Scientific Methods to Moderate Typhoons a
nd Prevent Destruction by Floods, Rains and Droughts, Creating a Council on Typh
oons and Prevent Destruction by Flood, Rains and Droughts, Creating a Council on
Typhoon Moderation and Flood Control Research and Development, Providing for i
ts Powers and Functions and Appropriating Funds Therefor.h
[58] Local Government Code of 1991, Book I, Title Seven, Section 116.
[59] This theory on gloss of executive power was advanced by Justice Frankfurter
in his concurring opinion in Youngstown Sheet and Tube v. Sawyer, 343 US 579, 6
10-611 (1952).
[60] Bissonette v. Haig, 766 F.2d 1384, 1389 (1985).
[61] 18 U.S.C.A 1385 (1878).
[62] Ibid.
[63] Bissonette v. Haig, supra note 60, at 1390.
[64] A power regulatory in nature is one which controls or directs. It is proscr
iptive if it prohibits or condemns and compulsory if it exerts some coercive fo
rce. See US v. Yunis, 681 F.Supp. 891 (D.D.C., 1988). See also FOURTH AMENDMENT
AND POSSE COMITATUS ACT RESTRICTIONS ON MILITARY INVOLVEMENT IN CIVIL LAW ENFO
RCEMENT,
[65] L.O.I. 02/2000, gTULUNGAN,h Rollo, pp. 17-22.
[66] No. 6 of the LOI states: DEPLOYMENT/EMPLOYMENT OF JOINT NCRPO-PHILIPPINE MA
RINES:
a. The PNP NCPRO thru Police Districts will continue to deploy un
iformed PNP personnel dedicated for police visibility patrols in tandem with the
Philippine Marines.
b. Before their deployment/employment, receiving units shall properly brief/orie
nt the troops on police patrol/visibility procedures.66
[67] Supra note 34.
[68] Supra note 32.
[69] No. 9 of the LOI states:
d. In case of apprehensions, arrested person/s shall be brought to the nearest p
olice stations/PCPs.
[70] Supra note 35.
[71] Rollo, p. 70.
5. Republic of the Philippines
SUPREME COURT
Manila
EN BANC

G.R. No. 101083 July 30, 1993
JUAN ANTONIO, ANNA ROSARIO and JOSE ALFONSO, all surnamed OPOSA, minors, and rep
resented by their parents ANTONIO and RIZALINA OPOSA, ROBERTA NICOLE SADIUA, min
or, represented by her parents CALVIN and ROBERTA SADIUA, CARLO, AMANDA SALUD an
d PATRISHA, all surnamed FLORES, minors and represented by their parents ENRICO
and NIDA FLORES, GIANINA DITA R. FORTUN, minor, represented by her parents SIGRI
D and DOLORES FORTUN, GEORGE II and MA. CONCEPCION, all surnamed MISA, minors an
d represented by their parents GEORGE and MYRA MISA, BENJAMIN ALAN V. PESIGAN, m
inor, represented by his parents ANTONIO and ALICE PESIGAN, JOVIE MARIE ALFARO,
minor, represented by her parents JOSE and MARIA VIOLETA ALFARO, MARIA CONCEPCIO
N T. CASTRO, minor, represented by her parents FREDENIL and JANE CASTRO, JOHANNA
DESAMPARADO,
minor, represented by her parents JOSE and ANGELA DESAMPRADO, CARLO JOAQUIN T. N
ARVASA, minor, represented by his parents GREGORIO II and CRISTINE CHARITY NARVA
SA, MA. MARGARITA, JESUS IGNACIO, MA. ANGELA and MARIE GABRIELLE, all surnamed S
AENZ, minors, represented by their parents ROBERTO and AURORA SAENZ, KRISTINE, M
ARY ELLEN, MAY, GOLDA MARTHE and DAVID IAN, all surnamed KING, minors, represent
ed by their parents MARIO and HAYDEE KING, DAVID, FRANCISCO and THERESE VICTORIA
, all surnamed ENDRIGA, minors, represented by their parents BALTAZAR and TERESI
TA ENDRIGA, JOSE MA. and REGINA MA., all surnamed ABAYA, minors, represented by
their parents ANTONIO and MARICA ABAYA, MARILIN, MARIO, JR. and MARIETTE, all su
rnamed CARDAMA, minors, represented by their parents MARIO and LINA CARDAMA, CLA
RISSA, ANN MARIE, NAGEL, and IMEE LYN, all surnamed OPOSA, minors and represente
d by their parents RICARDO and MARISSA OPOSA, PHILIP JOSEPH, STEPHEN JOHN and IS
AIAH JAMES, all surnamed QUIPIT, minors, represented by their parents JOSE MAX a
nd VILMI QUIPIT, BUGHAW CIELO, CRISANTO, ANNA, DANIEL and FRANCISCO, all surname
d BIBAL, minors, represented by their parents FRANCISCO, JR. and MILAGROS BIBAL,
and THE PHILIPPINE ECOLOGICAL NETWORK, INC., petitioners,
vs.
THE HONORABLE FULGENCIO S. FACTORAN, JR., in his capacity as the Secretary of th
e Department of Environment and Natural Resources, and THE HONORABLE ERIBERTO U.
ROSARIO, Presiding Judge of the RTC, Makati, Branch 66, respondents.
Oposa Law Office for petitioners.
The Solicitor General for respondents.

DAVIDE, JR., J.:
In a broader sense, this petition bears upon the right of Filipinos to a balance
d and healthful ecology which the petitioners dramatically associate with the tw
in concepts of "inter-generational responsibility" and "inter-generational justi
ce." Specifically, it touches on the issue of whether the said petitioners have
a cause of action to "prevent the misappropriation or impairment" of Philippine
rainforests and "arrest the unabated hemorrhage of the country's vital life supp
ort systems and continued rape of Mother Earth."
The controversy has its genesis in Civil Case No. 90-77 which was filed before B
ranch 66 (Makati, Metro Manila) of the Regional Trial Court (RTC), National Capi
tal Judicial Region. The principal plaintiffs therein, now the principal petitio
ners, are all minors duly represented and joined by their respective parents. Im
pleaded as an additional plaintiff is the Philippine Ecological Network, Inc. (P
ENI), a domestic, non-stock and non-profit corporation organized for the purpose
of, inter alia, engaging in concerted action geared for the protection of our e
nvironment and natural resources. The original defendant was the Honorable Fulge
ncio S. Factoran, Jr., then Secretary of the Department of Environment and Natur
al Resources (DENR). His substitution in this petition by the new Secretary, the
Honorable Angel C. Alcala, was subsequently ordered upon proper motion by the p
etitioners. 1 The complaint 2 was instituted as a taxpayers' class suit 3 and al
leges that the plaintiffs "are all citizens of the Republic of the Philippines,
taxpayers, and entitled to the full benefit, use and enjoyment of the natural re
source treasure that is the country's virgin tropical forests." The same was fil
ed for themselves and others who are equally concerned about the preservation of
said resource but are "so numerous that it is impracticable to bring them all b
efore the Court." The minors further asseverate that they "represent their gener
ation as well as generations yet unborn." 4 Consequently, it is prayed for that
judgment be rendered:
. . . ordering defendant, his agents, representatives and other persons acting i
n his behalf to ?
(1) Cancel all existing timber license agreements in the country;
(2) Cease and desist from receiving, accepting, processing, renewing or appr
oving new timber license agreements.
and granting the plaintiffs ". . . such other reliefs just and equitable under t
he premises." 5
The complaint starts off with the general averments that the Philippine archipel
ago of 7,100 islands has a land area of thirty million (30,000,000) hectares and
is endowed with rich, lush and verdant rainforests in which varied, rare and un
ique species of flora and fauna may be found; these rainforests contain a geneti
c, biological and chemical pool which is irreplaceable; they are also the habita
t of indigenous Philippine cultures which have existed, endured and flourished s
ince time immemorial; scientific evidence reveals that in order to maintain a ba
lanced and healthful ecology, the country's land area should be utilized on the
basis of a ratio of fifty-four per cent (54%) for forest cover and forty-six per
cent (46%) for agricultural, residential, industrial, commercial and other uses
; the distortion and disturbance of this balance as a consequence of deforestati
on have resulted in a host of environmental tragedies, such as (a) water shortag
es resulting from drying up of the water table, otherwise known as the "aquifer,
" as well as of rivers, brooks and streams, (b) salinization of the water table
as a result of the intrusion therein of salt water, incontrovertible examples of
which may be found in the island of Cebu and the Municipality of Bacoor, Cavite
, (c) massive erosion and the consequential loss of soil fertility and agricultu
ral productivity, with the volume of soil eroded estimated at one billion (1,000
,000,000) cubic meters per annum ? approximately the size of the entire island o
f Catanduanes, (d) the endangering and extinction of the country's unique, rare
and varied flora and fauna, (e) the disturbance and dislocation of cultural comm
unities, including the disappearance of the Filipino's indigenous cultures, (f)
the siltation of rivers and seabeds and consequential destruction of corals and
other aquatic life leading to a critical reduction in marine resource productivi
ty, (g) recurrent spells of drought as is presently experienced by the entire co
untry, (h) increasing velocity of typhoon winds which result from the absence of
windbreakers, (i) the floodings of lowlands and agricultural plains arising fro
m the absence of the absorbent mechanism of forests, (j) the siltation and short
ening of the lifespan of multi-billion peso dams constructed and operated for th
e purpose of supplying water for domestic uses, irrigation and the generation of
electric power, and (k) the reduction of the earth's capacity to process carbon
dioxide gases which has led to perplexing and catastrophic climatic changes suc
h as the phenomenon of global warming, otherwise known as the "greenhouse effect
."
Plaintiffs further assert that the adverse and detrimental consequences of conti
nued and deforestation are so capable of unquestionable demonstration that the s
ame may be submitted as a matter of judicial notice. This notwithstanding, they
expressed their intention to present expert witnesses as well as documentary, ph
otographic and film evidence in the course of the trial.
As their cause of action, they specifically allege that:
CAUSE OF ACTION
7. Plaintiffs replead by reference the foregoing allegations.
8. Twenty-five (25) years ago, the Philippines had some sixteen (16) millio
n hectares of rainforests constituting roughly 53% of the country's land mass.
9. Satellite images taken in 1987 reveal that there remained no more than 1
.2 million hectares of said rainforests or four per cent (4.0%) of the country's
land area.
10. More recent surveys reveal that a mere 850,000 hectares of virgin old-gr
owth rainforests are left, barely 2.8% of the entire land mass of the Philippine
archipelago and about 3.0 million hectares of immature and uneconomical seconda
ry growth forests.
11. Public records reveal that the defendant's, predecessors have granted ti
mber license agreements ('TLA's') to various corporations to cut the aggregate a
rea of 3.89 million hectares for commercial logging purposes.
A copy of the TLA holders and the corresponding areas covered is hereto attached
as Annex "A".
12. At the present rate of deforestation, i.e. about 200,000 hectares per an
num or 25 hectares per hour ? nighttime, Saturdays, Sundays and holidays include
d ? the Philippines will be bereft of forest resources after the end of this ens
uing decade, if not earlier.
13. The adverse effects, disastrous consequences, serious injury and irrepar
able damage of this continued trend of deforestation to the plaintiff minor's ge
neration and to generations yet unborn are evident and incontrovertible. As a ma
tter of fact, the environmental damages enumerated in paragraph 6 hereof are alr
eady being felt, experienced and suffered by the generation of plaintiff adults.
14. The continued allowance by defendant of TLA holders to cut and deforest
the remaining forest stands will work great damage and irreparable injury to pla
intiffs ? especially plaintiff minors and their successors ? who may never see,
use, benefit from and enjoy this rare and unique natural resource treasure.
This act of defendant constitutes a misappropriation and/or impairment of the na
tural resource property he holds in trust for the benefit of plaintiff minors an
d succeeding generations.
15. Plaintiffs have a clear and constitutional right to a balanced and healt
hful ecology and are entitled to protection by the State in its capacity as the
parens patriae.
16. Plaintiff have exhausted all administrative remedies with the defendant'
s office. On March 2, 1990, plaintiffs served upon defendant a final demand to c
ancel all logging permits in the country.
A copy of the plaintiffs' letter dated March 1, 1990 is hereto attached as Annex
"B".
17. Defendant, however, fails and refuses to cancel the existing TLA's to th
e continuing serious damage and extreme prejudice of plaintiffs.
18. The continued failure and refusal by defendant to cancel the TLA's is an
act violative of the rights of plaintiffs, especially plaintiff minors who may
be left with a country that is desertified (sic), bare, barren and devoid of the
wonderful flora, fauna and indigenous cultures which the Philippines had been a
bundantly blessed with.
19. Defendant's refusal to cancel the aforementioned TLA's is manifestly con
trary to the public policy enunciated in the Philippine Environmental Policy whi
ch, in pertinent part, states that it is the policy of the State ?
(a) to create, develop, maintain and improve conditions under which man and
nature can thrive in productive and enjoyable harmony with each other;
(b) to fulfill the social, economic and other requirements of present and fu
ture generations of Filipinos and;
(c) to ensure the attainment of an environmental quality that is conductive
to a life of dignity and well-being. (P.D. 1151, 6 June 1977)
20. Furthermore, defendant's continued refusal to cancel the aforementioned
TLA's is contradictory to the Constitutional policy of the State to ?
a. effect "a more equitable distribution of opportunities, income and wealt
h" and "make full and efficient use of natural resources (sic)." (Section 1, Art
icle XII of the Constitution);
b. "protect the nation's marine wealth." (Section 2, ibid);
c. "conserve and promote the nation's cultural heritage and resources (sic)
" (Section 14, Article XIV, id.);
d. "protect and advance the right of the people to a balanced and healthful
ecology in accord with the rhythm and harmony of nature." (Section 16, Article
II, id.)
21. Finally, defendant's act is contrary to the highest law of humankind ? t
he natural law ? and violative of plaintiffs' right to self-preservation and per
petuation.
22. There is no other plain, speedy and adequate remedy in law other than th
e instant action to arrest the unabated hemorrhage of the country's vital life s
upport systems and continued rape of Mother Earth. 6
On 22 June 1990, the original defendant, Secretary Factoran, Jr., filed a Motion
to Dismiss the complaint based on two (2) grounds, namely: (1) the plaintiffs h
ave no cause of action against him and (2) the issue raised by the plaintiffs is
a political question which properly pertains to the legislative or executive br
anches of Government. In their 12 July 1990 Opposition to the Motion, the petiti
oners maintain that (1) the complaint shows a clear and unmistakable cause of ac
tion, (2) the motion is dilatory and (3) the action presents a justiciable quest
ion as it involves the defendant's abuse of discretion.
On 18 July 1991, respondent Judge issued an order granting the aforementioned mo
tion to dismiss. 7 In the said order, not only was the defendant's claim ? that
the complaint states no cause of action against him and that it raises a politic
al question ? sustained, the respondent Judge further ruled that the granting of
the relief prayed for would result in the impairment of contracts which is proh
ibited by the fundamental law of the land.
Plaintiffs thus filed the instant special civil action for certiorari under Rule
65 of the Revised Rules of Court and ask this Court to rescind and set aside th
e dismissal order on the ground that the respondent Judge gravely abused his dis
cretion in dismissing the action. Again, the parents of the plaintiffs-minors no
t only represent their children, but have also joined the latter in this case. 8
On 14 May 1992, We resolved to give due course to the petition and required the
parties to submit their respective Memoranda after the Office of the Solicitor G
eneral (OSG) filed a Comment in behalf of the respondents and the petitioners fi
led a reply thereto.
Petitioners contend that the complaint clearly and unmistakably states a cause o
f action as it contains sufficient allegations concerning their right to a sound
environment based on Articles 19, 20 and 21 of the Civil Code (Human Relations)
, Section 4 of Executive Order (E.O.) No. 192 creating the DENR, Section 3 of Pr
esidential Decree (P.D.) No. 1151 (Philippine Environmental Policy), Section 16,
Article II of the 1987 Constitution recognizing the right of the people to a ba
lanced and healthful ecology, the concept of generational genocide in Criminal L
aw and the concept of man's inalienable right to self-preservation and self-perp
etuation embodied in natural law. Petitioners likewise rely on the respondent's
correlative obligation per Section 4 of E.O. No. 192, to safeguard the people's
right to a healthful environment.
It is further claimed that the issue of the respondent Secretary's alleged grave
abuse of discretion in granting Timber License Agreements (TLAs) to cover more
areas for logging than what is available involves a judicial question.
Anent the invocation by the respondent Judge of the Constitution's non-impairmen
t clause, petitioners maintain that the same does not apply in this case because
TLAs are not contracts. They likewise submit that even if TLAs may be considere
d protected by the said clause, it is well settled that they may still be revoke
d by the State when the public interest so requires.
On the other hand, the respondents aver that the petitioners failed to allege in
their complaint a specific legal right violated by the respondent Secretary for
which any relief is provided by law. They see nothing in the complaint but vagu
e and nebulous allegations concerning an "environmental right" which supposedly
entitles the petitioners to the "protection by the state in its capacity as pare
ns patriae." Such allegations, according to them, do not reveal a valid cause of
action. They then reiterate the theory that the question of whether logging sho
uld be permitted in the country is a political question which should be properly
addressed to the executive or legislative branches of Government. They therefor
e assert that the petitioners' resources is not to file an action to court, but
to lobby before Congress for the passage of a bill that would ban logging totall
y.
As to the matter of the cancellation of the TLAs, respondents submit that the sa
me cannot be done by the State without due process of law. Once issued, a TLA re
mains effective for a certain period of time ? usually for twenty-five (25) year
s. During its effectivity, the same can neither be revised nor cancelled unless
the holder has been found, after due notice and hearing, to have violated the te
rms of the agreement or other forestry laws and regulations. Petitioners' propos
ition to have all the TLAs indiscriminately cancelled without the requisite hear
ing would be violative of the requirements of due process.
Before going any further, We must first focus on some procedural matters. Petiti
oners instituted Civil Case No. 90-777 as a class suit. The original defendant a
nd the present respondents did not take issue with this matter. Nevertheless, We
hereby rule that the said civil case is indeed a class suit. The subject matter
of the complaint is of common and general interest not just to several, but to
all citizens of the Philippines. Consequently, since the parties are so numerous
, it, becomes impracticable, if not totally impossible, to bring all of them bef
ore the court. We likewise declare that the plaintiffs therein are numerous and
representative enough to ensure the full protection of all concerned interests.
Hence, all the requisites for the filing of a valid class suit under Section 12,
Rule 3 of the Revised Rules of Court are present both in the said civil case an
d in the instant petition, the latter being but an incident to the former.
This case, however, has a special and novel element. Petitioners minors assert t
hat they represent their generation as well as generations yet unborn. We find n
o difficulty in ruling that they can, for themselves, for others of their genera
tion and for the succeeding generations, file a class suit. Their personality to
sue in behalf of the succeeding generations can only be based on the concept of
intergenerational responsibility insofar as the right to a balanced and healthf
ul ecology is concerned. Such a right, as hereinafter expounded, considers
the "rhythm and harmony of nature." Nature means the created world in its entire
ty. 9 Such rhythm and harmony indispensably include, inter alia, the judicious d
isposition, utilization, management, renewal and conservation of the country's f
orest, mineral, land, waters, fisheries, wildlife, off-shore areas and other nat
ural resources to the end that their exploration, development and utilization be
equitably accessible to the present as well as future generations. 10 Needless
to say, every generation has a responsibility to the next to preserve that rhyth
m and harmony for the full enjoyment of a balanced and healthful ecology. Put a
little differently, the minors' assertion of their right to a sound environment
constitutes, at the same time, the performance of their obligation to ensure the
protection of that right for the generations to come.
The locus standi of the petitioners having thus been addressed, We shall now pro
ceed to the merits of the petition.
After a careful perusal of the complaint in question and a meticulous considerat
ion and evaluation of the issues raised and arguments adduced by the parties, We
do not hesitate to find for the petitioners and rule against the respondent Jud
ge's challenged order for having been issued with grave abuse of discretion amou
nting to lack of jurisdiction. The pertinent portions of the said order reads as
follows:
xxx xxx xxx
After a careful and circumspect evaluation of the Complaint, the Court cannot he
lp but agree with the defendant. For although we believe that plaintiffs have bu
t the noblest of all intentions, it (sic) fell short of alleging, with sufficien
t definiteness, a specific legal right they are seeking to enforce and protect,
or a specific legal wrong they are seeking to prevent and redress (Sec. 1, Rule
2, RRC). Furthermore, the Court notes that the Complaint is replete with vague a
ssumptions and vague conclusions based on unverified data. In fine, plaintiffs f
ail to state a cause of action in its Complaint against the herein defendant.
Furthermore, the Court firmly believes that the matter before it, being impresse
d with political color and involving a matter of public policy, may not be taken
cognizance of by this Court without doing violence to the sacred principle of "
Separation of Powers" of the three (3) co-equal branches of the Government.
The Court is likewise of the impression that it cannot, no matter how we stretch
our jurisdiction, grant the reliefs prayed for by the plaintiffs, i.e., to canc
el all existing timber license agreements in the country and to cease and desist
from receiving, accepting, processing, renewing or approving new timber license
agreements. For to do otherwise would amount to "impairment of contracts" abhor
ed (sic) by the fundamental law. 11
We do not agree with the trial court's conclusions that the plaintiffs failed to
allege with sufficient definiteness a specific legal right involved or a specif
ic legal wrong committed, and that the complaint is replete with vague assumptio
ns and conclusions based on unverified data. A reading of the complaint itself b
elies these conclusions.
The complaint focuses on one specific fundamental legal right ? the right to a b
alanced and healthful ecology which, for the first time in our nation's constitu
tional history, is solemnly incorporated in the fundamental law. Section 16, Art
icle II of the 1987 Constitution explicitly provides:
Sec. 16. The State shall protect and advance the right of the people to a
balanced and healthful ecology in accord with the rhythm and harmony of nature.
This right unites with the right to health which is provided for in the precedin
g section of the same article:
Sec. 15. The State shall protect and promote the right to health of the p
eople and instill health consciousness among them.
While the right to a balanced and healthful ecology is to be found under the Dec
laration of Principles and State Policies and not under the Bill of Rights, it d
oes not follow that it is less important than any of the civil and political rig
hts enumerated in the latter. Such a right belongs to a different category of ri
ghts altogether for it concerns nothing less than self-preservation and self-per
petuation ? aptly and fittingly stressed by the petitioners ? the advancement of
which may even be said to predate all governments and constitutions. As a matte
r of fact, these basic rights need not even be written in the Constitution for t
hey are assumed to exist from the inception of humankind. If they are now explic
itly mentioned in the fundamental charter, it is because of the well-founded fea
r of its framers that unless the rights to a balanced and healthful ecology and
to health are mandated as state policies by the Constitution itself, thereby hig
hlighting their continuing importance and imposing upon the state a solemn oblig
ation to preserve the first and protect and advance the second, the day would no
t be too far when all else would be lost not only for the present generation, bu
t also for those to come ? generations which stand to inherit nothing but parche
d earth incapable of sustaining life.
The right to a balanced and healthful ecology carries with it the correlative du
ty to refrain from impairing the environment. During the debates on this right i
n one of the plenary sessions of the 1986 Constitutional Commission, the followi
ng exchange transpired between Commissioner Wilfrido Villacorta and Commissioner
Adolfo Azcuna who sponsored the section in question:
MR. VILLACORTA:
Does this section mandate the State to provide sanctions against all forms of po
llution ? air, water and noise pollution?
MR. AZCUNA:
Yes, Madam President. The right to healthful (sic) environment necessarily carri
es with it the correlative duty of not impairing the same and, therefore, sancti
ons may be provided for impairment of environmental balance. 12
The said right implies, among many other things, the judicious management and co
nservation of the country's forests.
Without such forests, the ecological or environmental balance would be irreversi
by disrupted.
Conformably with the enunciated right to a balanced and healthful ecology and th
e right to health, as well as the other related provisions of the Constitution c
oncerning the conservation, development and utilization of the country's natural
resources, 13 then President Corazon C. Aquino promulgated on 10 June 1987 E.O.
No. 192, 14 Section 4 of which expressly mandates that the Department of Enviro
nment and Natural Resources "shall be the primary government agency responsible
for the conservation, management, development and proper use of the country's en
vironment and natural resources, specifically forest and grazing lands, mineral,
resources, including those in reservation and watershed areas, and lands of the
public domain, as well as the licensing and regulation of all natural resources
as may be provided for by law in order to ensure equitable sharing of the benef
its derived therefrom for the welfare of the present and future generations of F
ilipinos." Section 3 thereof makes the following statement of policy:
Sec. 3. Declaration of Policy. ? It is hereby declared the policy of the State t
o ensure the sustainable use, development, management, renewal, and conservation
of the country's forest, mineral, land, off-shore areas and other natural resou
rces, including the protection and enhancement of the quality of the environment
, and equitable access of the different segments of the population to the develo
pment and the use of the country's natural resources, not only for the present g
eneration but for future generations as well. It is also the policy of the state
to recognize and apply a true value system including social and environmental c
ost implications relative to their utilization, development and conservation of
our natural resources.
This policy declaration is substantially re-stated it Title XIV, Book IV of the
Administrative Code of 1987, 15 specifically in Section 1 thereof which reads:
Sec. 1. Declaration of Policy. ? (1) The State shall ensure, for the benefit of
the Filipino people, the full exploration and development as well as the judicio
us disposition, utilization, management, renewal and conservation of the country
's forest, mineral, land, waters, fisheries, wildlife, off-shore areas and other
natural resources, consistent with the necessity of maintaining a sound ecologi
cal balance and protecting and enhancing the quality of the environment and the
objective of making the exploration, development and utilization of such natural
resources equitably accessible to the different segments of the present as well
as future generations.
(2) The State shall likewise recognize and apply a true value system that ta
kes into account social and environmental cost implications relative to the util
ization, development and conservation of our natural resources.
The above provision stresses "the necessity of maintaining a sound ecological ba
lance and protecting and enhancing the quality of the environment." Section 2 of
the same Title, on the other hand, specifically speaks of the mandate of the DE
NR; however, it makes particular reference to the fact of the agency's being sub
ject to law and higher authority. Said section provides:
Sec. 2. Mandate. ? (1) The Department of Environment and Natural Resources shall
be primarily responsible for the implementation of the foregoing policy.
(2) It shall, subject to law and higher authority, be in charge of carrying
out the State's constitutional mandate to control and supervise the exploration,
development, utilization, and conservation of the country's natural resources.
Both E.O. NO. 192 and the Administrative Code of 1987 have set the objectives wh
ich will serve as the bases for policy formulation, and have defined the powers
and functions of the DENR.
It may, however, be recalled that even before the ratification of the 1987 Const
itution, specific statutes already paid special attention to the "environmental
right" of the present and future generations. On 6 June 1977, P.D. No. 1151 (Phi
lippine Environmental Policy) and P.D. No. 1152 (Philippine Environment Code) we
re issued. The former "declared a continuing policy of the State (a) to create,
develop, maintain and improve conditions under which man and nature can thrive i
n productive and enjoyable harmony with each other, (b) to fulfill the social, e
conomic and other requirements of present and future generations of Filipinos, a
nd (c) to insure the attainment of an environmental quality that is conducive to
a life of dignity and well-being." 16 As its goal, it speaks of the "responsibi
lities of each generation as trustee and guardian of the environment for succeed
ing generations." 17 The latter statute, on the other hand, gave flesh to the sa
id policy.
Thus, the right of the petitioners (and all those they represent) to a balanced
and healthful ecology is as clear as the DENR's duty ? under its mandate and by
virtue of its powers and functions under E.O. No. 192 and the Administrative Cod
e of 1987 ? to protect and advance the said right.
A denial or violation of that right by the other who has the corelative duty or
obligation to respect or protect the same gives rise to a cause of action. Petit
ioners maintain that the granting of the TLAs, which they claim was done with gr
ave abuse of discretion, violated their right to a balanced and healthful ecolog
y; hence, the full protection thereof requires that no further TLAs should be re
newed or granted.
A cause of action is defined as:
. . . an act or omission of one party in violation of the legal right or rights
of the other; and its essential elements are legal right of the plaintiff, corre
lative obligation of the defendant, and act or omission of the defendant in viol
ation of said legal right. 18
It is settled in this jurisdiction that in a motion to dismiss based on the grou
nd that the complaint fails to state a cause of action, 19 the question submitte
d to the court for resolution involves the sufficiency of the facts alleged in t
he complaint itself. No other matter should be considered; furthermore, the trut
h of falsity of the said allegations is beside the point for the truth thereof i
s deemed hypothetically admitted. The only issue to be resolved in such a case i
s: admitting such alleged facts to be true, may the court render a valid judgmen
t in accordance with the prayer in the complaint? 20 In Militante vs. Edrosolano
, 21 this Court laid down the rule that the judiciary should "exercise the utmos
t care and circumspection in passing upon a motion to dismiss on the ground of t
he absence thereof [cause of action] lest, by its failure to manifest a correct
appreciation of the facts alleged and deemed hypothetically admitted, what the l
aw grants or recognizes is effectively nullified. If that happens, there is a bl
ot on the legal order. The law itself stands in disrepute."
After careful examination of the petitioners' complaint, We find the statements
under the introductory affirmative allegations, as well as the specific averment
s under the sub-heading CAUSE OF ACTION, to be adequate enough to show, prima fa
cie, the claimed violation of their rights. On the basis thereof, they may thus
be granted, wholly or partly, the reliefs prayed for. It bears stressing, howeve
r, that insofar as the cancellation of the TLAs is concerned, there is the need
to implead, as party defendants, the grantees thereof for they are indispensable
parties.
The foregoing considered, Civil Case No. 90-777 be said to raise a political que
stion. Policy formulation or determination by the executive or legislative branc
hes of Government is not squarely put in issue. What is principally involved is
the enforcement of a right vis-a-vis policies already formulated and expressed i
n legislation. It must, nonetheless, be emphasized that the political question d
octrine is no longer, the insurmountable obstacle to the exercise of judicial po
wer or the impenetrable shield that protects executive and legislative actions f
rom judicial inquiry or review. The second paragraph of section 1, Article VIII
of the Constitution states that:
Judicial power includes the duty of the courts of justice to settle actual contr
oversies involving rights which are legally demandable and enforceable, and to d
etermine whether or not there has been a grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of any branch or instrumentality of t
he Government.
Commenting on this provision in his book, Philippine Political Law, 22 Mr. Justi
ce Isagani A. Cruz, a distinguished member of this Court, says:
The first part of the authority represents the traditional concept of judicial p
ower, involving the settlement of conflicting rights as conferred as law. The se
cond part of the authority represents a broadening of judicial power to enable t
he courts of justice to review what was before forbidden territory, to wit, the
discretion of the political departments of the government.
As worded, the new provision vests in the judiciary, and particularly the Suprem
e Court, the power to rule upon even the wisdom of the decisions of the executiv
e and the legislature and to declare their acts invalid for lack or excess of ju
risdiction because tainted with grave abuse of discretion. The catch, of course,
is the meaning of "grave abuse of discretion," which is a very elastic phrase t
hat can expand or contract according to the disposition of the judiciary.
In Daza vs. Singson, 23 Mr. Justice Cruz, now speaking for this Court, noted:
In the case now before us, the jurisdictional objection becomes even less tenabl
e and decisive. The reason is that, even if we were to assume that the issue pre
sented before us was political in nature, we would still not be precluded from r
evolving it under the expanded jurisdiction conferred upon us that now covers, i
n proper cases, even the political question. Article VII, Section 1, of the Cons
titution clearly provides: . . .
The last ground invoked by the trial court in dismissing the complaint is the no
n-impairment of contracts clause found in the Constitution. The court a quo decl
ared that:
The Court is likewise of the impression that it cannot, no matter how we stretch
our jurisdiction, grant the reliefs prayed for by the plaintiffs, i.e., to canc
el all existing timber license agreements in the country and to cease and desist
from receiving, accepting, processing, renewing or approving new timber license
agreements. For to do otherwise would amount to "impairment of contracts" abhor
ed (sic) by the fundamental law. 24
We are not persuaded at all; on the contrary, We are amazed, if not shocked, by
such a sweeping pronouncement. In the first place, the respondent Secretary did
not, for obvious reasons, even invoke in his motion to dismiss the non-impairmen
t clause. If he had done so, he would have acted with utmost infidelity to the G
overnment by providing undue and unwarranted benefits and advantages to the timb
er license holders because he would have forever bound the Government to strictl
y respect the said licenses according to their terms and conditions regardless o
f changes in policy and the demands of public interest and welfare. He was aware
that as correctly pointed out by the petitioners, into every timber license mus
t be read Section 20 of the Forestry Reform Code (P.D. No. 705) which provides:
. . . Provided, That when the national interest so requires, the President may a
mend, modify, replace or rescind any contract, concession, permit, licenses or a
ny other form of privilege granted herein . . .
Needless to say, all licenses may thus be revoked or rescinded by executive acti
on. It is not a contract, property or a property right protested by the due proc
ess clause of the Constitution. In Tan vs. Director of Forestry, 25 this Court h
eld:
. . . A timber license is an instrument by which the State regulates the utiliza
tion and disposition of forest resources to the end that public welfare is promo
ted. A timber license is not a contract within the purview of the due process cl
ause; it is only a license or privilege, which can be validly withdrawn whenever
dictated by public interest or public welfare as in this case.
A license is merely a permit or privilege to do what otherwise would be unlawful
, and is not a contract between the authority, federal, state, or municipal, gra
nting it and the person to whom it is granted; neither is it property or a prope
rty right, nor does it create a vested right; nor is it taxation (37 C.J. 168).
Thus, this Court held that the granting of license does not create irrevocable r
ights, neither is it property or property rights (People vs. Ong Tin, 54 O.G. 75
76).
We reiterated this pronouncement in Felipe Ysmael, Jr. & Co., Inc. vs. Deputy Ex
ecutive Secretary: 26
. . . Timber licenses, permits and license agreements are the principal instrume
nts by which the State regulates the utilization and disposition of forest resou
rces to the end that public welfare is promoted. And it can hardly be gainsaid t
hat they merely evidence a privilege granted by the State to qualified entities,
and do not vest in the latter a permanent or irrevocable right to the particula
r concession area and the forest products therein. They may be validly amended,
modified, replaced or rescinded by the Chief Executive when national interests s
o require. Thus, they are not deemed contracts within the purview of the due pro
cess of law clause [See Sections 3(ee) and 20 of Pres. Decree No. 705, as amende
d. Also, Tan v. Director of Forestry, G.R. No. L-24548, October 27, 1983, 125 SC
RA 302].
Since timber licenses are not contracts, the non-impairment clause, which reads:
Sec. 10. No law impairing, the obligation of contracts shall be passed. 2
7
cannot be invoked.
In the second place, even if it is to be assumed that the same are contracts, th
e instant case does not involve a law or even an executive issuance declaring th
e cancellation or modification of existing timber licenses. Hence, the non-impai
rment clause cannot as yet be invoked. Nevertheless, granting further that a law
has actually been passed mandating cancellations or modifications, the same can
not still be stigmatized as a violation of the non-impairment clause. This is be
cause by its very nature and purpose, such as law could have only been passed in
the exercise of the police power of the state for the purpose of advancing the
right of the people to a balanced and healthful ecology, promoting their health
and enhancing the general welfare. In Abe vs. Foster Wheeler
Corp. 28 this Court stated:
The freedom of contract, under our system of government, is not meant to be abso
lute. The same is understood to be subject to reasonable legislative regulation
aimed at the promotion of public health, moral, safety and welfare. In other wor
ds, the constitutional guaranty of non-impairment of obligations of contract is
limited by the exercise of the police power of the State, in the interest of pub
lic health, safety, moral and general welfare.
The reason for this is emphatically set forth in Nebia vs. New York, 29 quoted i
n Philippine American Life Insurance Co. vs. Auditor General, 30 to wit:
Under our form of government the use of property and the making of contracts are
normally matters of private and not of public concern. The general rule is that
both shall be free of governmental interference. But neither property rights no
r contract rights are absolute; for government cannot exist if the citizen may a
t will use his property to the detriment of his fellows, or exercise his freedom
of contract to work them harm. Equally fundamental with the private right is th
at of the public to regulate it in the common interest.
In short, the non-impairment clause must yield to the police power of the state.
31
Finally, it is difficult to imagine, as the trial court did, how the non-impairm
ent clause could apply with respect to the prayer to enjoin the respondent Secre
tary from receiving, accepting, processing, renewing or approving new timber lic
enses for, save in cases of renewal, no contract would have as of yet existed in
the other instances. Moreover, with respect to renewal, the holder is not entit
led to it as a matter of right.
WHEREFORE, being impressed with merit, the instant Petition is hereby GRANTED, a
nd the challenged Order of respondent Judge of 18 July 1991 dismissing Civil Cas
e No. 90-777 is hereby set aside. The petitioners may therefore amend their comp
laint to implead as defendants the holders or grantees of the questioned timber
license agreements.
No pronouncement as to costs.
SO ORDERED.
Cruz, Padilla, Bidin, Grino-Aquino, Regalado, Romero, Nocon, Bellosillo, Melo an
d Quiason, JJ., concur.
Narvasa, C.J., Puno and Vitug, JJ., took no part.



Separate Opinions

FELICIANO, J., concurring
I join in the result reached by my distinguished brother in the Court, Davide, J
r., J., in this case which, to my mind, is one of the most important cases decid
ed by this Court in the last few years. The seminal principles laid down in this
decision are likely to influence profoundly the direction and course of the pro
tection and management of the environment, which of course embraces the utilizat
ion of all the natural resources in the territorial base of our polity. I have t
herefore sought to clarify, basically to myself, what the Court appears to be sa
ying.
The Court explicitly states that petitioners have the locus standi necessary to
sustain the bringing and, maintenance of this suit (Decision, pp. 11-12). Locus
standi is not a function of petitioners' claim that their suit is properly regar
ded as a class suit. I understand locus standi to refer to the legal interest wh
ich a plaintiff must have in the subject matter of the suit. Because of the very
broadness of the concept of "class" here involved ? membership in this "class"
appears to embrace everyone living in the country whether now or in the
future ? it appears to me that everyone who may be expected to benefit from the
course of action petitioners seek to require public respondents to take, is vest
ed with the necessary locus standi. The Court may be seen therefore to be recogn
izing a beneficiaries' right of action in the field of environmental protection,
as against both the public administrative agency directly concerned and the pri
vate persons or entities operating in the field or sector of activity involved.
Whether such beneficiaries' right of action may be found under any and all circu
mstances, or whether some failure to act, in the first instance, on the part of
the governmental agency concerned must be shown ("prior exhaustion of administra
tive remedies"), is not discussed in the decision and presumably is left for fut
ure determination in an appropriate case.
The Court has also declared that the complaint has alleged and focused upon "one
specific fundamental legal right ? the right to a balanced and healthful ecolog
y" (Decision, p. 14). There is no question that "the right to a balanced and hea
lthful ecology" is "fundamental" and that, accordingly, it has been "constitutio
nalized." But although it is fundamental in character, I suggest, with very grea
t respect, that it cannot be characterized as "specific," without doing excessiv
e violence to language. It is in fact very difficult to fashion language more co
mprehensive in scope and generalized in character than a right to "a balanced an
d healthful ecology." The list of particular claims which can be subsumed under
this rubic appears to be entirely open-ended: prevention and control of emission
of toxic fumes and smoke from factories and motor vehicles; of discharge of oil
, chemical effluents, garbage and raw sewage into rivers, inland and coastal wat
ers by vessels, oil rigs, factories, mines and whole communities; of dumping of
organic and inorganic wastes on open land, streets and thoroughfares; failure to
rehabilitate land after strip-mining or open-pit mining; kaingin or slash-and-b
urn farming; destruction of fisheries, coral reefs and other living sea resource
s through the use of dynamite or cyanide and other chemicals; contamination of g
round water resources; loss of certain species of fauna and flora; and so on. Th
e other statements pointed out by the Court: Section 3, Executive Order No. 192
dated 10 June 1987; Section 1, Title XIV, Book IV of the 1987 Administrative Cod
e; and P.D. No. 1151, dated 6 June 1977 ? all appear to be formulations of polic
y, as general and abstract as the constitutional statements of basic policy in A
rticle II, Section 16 ("the right ? to a balanced and healthful ecology") and 15
("the right to health").
P.D. No. 1152, also dated 6 June 1977, entitled "The Philippine Environment Code
," is, upon the other hand, a compendious collection of more "specific environme
nt management policies" and "environment quality standards" (fourth "Whereas" cl
ause, Preamble) relating to an extremely wide range of topics:
(a) air quality management;
(b) water quality management;
(c) land use management;
(d) natural resources management and conservation embracing:
(i) fisheries and aquatic resources;
(ii) wild life;
(iii) forestry and soil conservation;
(iv) flood control and natural calamities;
(v) energy development;
(vi) conservation and utilization of surface and ground water
(vii) mineral resources
Two (2) points are worth making in this connection. Firstly, neither petitioners
nor the Court has identified the particular provision or provisions (if any) of
the Philippine Environment Code which give rise to a specific legal right which
petitioners are seeking to enforce. Secondly, the Philippine Environment Code i
dentifies with notable care the particular government agency charged with the fo
rmulation and implementation of guidelines and programs dealing with each of the
headings and sub-headings mentioned above. The Philippine Environment Code does
not, in other words, appear to contemplate action on the part of private person
s who are beneficiaries of implementation of that Code.
As a matter of logic, by finding petitioners' cause of action as anchored on a l
egal right comprised in the constitutional statements above noted, the Court is
in effect saying that Section 15 (and Section 16) of Article II of the Constitut
ion are self-executing and judicially enforceable even in their present form. Th
e implications of this doctrine will have to be explored in future cases; those
implications are too large and far-reaching in nature even to be hinted at here.
My suggestion is simply that petitioners must, before the trial court, show a mo
re specific legal right ? a right cast in language of a significantly lower orde
r of generality than Article II (15) of the Constitution ? that is or may be vio
lated by the actions, or failures to act, imputed to the public respondent by pe
titioners so that the trial court can validly render judgment granting all or pa
rt of the relief prayed for. To my mind, the Court should be understood as simpl
y saying that such a more specific legal right or rights may well exist in our c
orpus of law, considering the general policy principles found in the Constitutio
n and the existence of the Philippine Environment Code, and that the trial court
should have given petitioners an effective opportunity so to demonstrate, inste
ad of aborting the proceedings on a motion to dismiss.
It seems to me important that the legal right which is an essential component of
a cause of action be a specific, operable legal right, rather than a constituti
onal or statutory policy, for at least two (2) reasons. One is that unless the l
egal right claimed to have been violated or disregarded is given specification i
n operational terms, defendants may well be unable to defend themselves intellig
ently and effectively; in other words, there are due process dimensions to this
matter.
The second is a broader-gauge consideration ? where a specific violation of law
or applicable regulation is not alleged or proved, petitioners can be expected t
o fall back on the expanded conception of judicial power in the second paragraph
of Section 1 of Article VIII of the Constitution which reads:
Section 1. . . .
Judicial power includes the duty of the courts of justice to settle actual contr
oversies involving rights which are legally demandable and enforceable, and to d
etermine whether or not there has been a grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of any branch or instrumentality of t
he Government. (Emphasis supplied)
When substantive standards as general as "the right to a balanced and healthy ec
ology" and "the right to health" are combined with remedial standards as broad r
anging as "a grave abuse of discretion amounting to lack or excess of jurisdicti
on," the result will be, it is respectfully submitted, to propel courts into the
uncharted ocean of social and economic policy making. At least in respect of th
e vast area of environmental protection and management, our courts have no claim
to special technical competence and experience and professional qualification.
Where no specific, operable norms and standards are shown to exist, then the pol
icy making departments ? the legislative and executive departments ? must be giv
en a real and effective opportunity to fashion and promulgate those norms and st
andards, and to implement them before the courts should intervene.
My learned brother Davide, Jr., J., rightly insists that the timber companies, w
hose concession agreements or TLA's petitioners demand public respondents should
cancel, must be impleaded in the proceedings below. It might be asked that, if
petitioners' entitlement to the relief demanded is not dependent upon proof of b
reach by the timber companies of one or more of the specific terms and condition
s of their concession agreements (and this, petitioners implicitly assume), what
will those companies litigate about? The answer I suggest is that they may seek
to dispute the existence of the specific legal right petitioners should allege,
as well as the reality of the claimed factual nexus between petitioners' specif
ic legal rights and the claimed wrongful acts or failures to act of public respo
ndent administrative agency. They may also controvert the appropriateness of the
remedy or remedies demanded by petitioners, under all the circumstances which e
xist.
I vote to grant the Petition for Certiorari because the protection of the enviro
nment, including the forest cover of our territory, is of extreme importance for
the country. The doctrines set out in the Court's decision issued today should,
however, be subjected to closer examination.


# Separate Opinions
FELICIANO, J., concurring
I join in the result reached by my distinguished brother in the Court, Davide, J
r., J., in this case which, to my mind, is one of the most important cases decid
ed by this Court in the last few years. The seminal principles laid down in this
decision are likely to influence profoundly the direction and course of the pro
tection and management of the environment, which of course embraces the utilizat
ion of all the natural resources in the territorial base of our polity. I have t
herefore sought to clarify, basically to myself, what the Court appears to be sa
ying.
The Court explicitly states that petitioners have the locus standi necessary to
sustain the bringing and, maintenance of this suit (Decision, pp. 11-12). Locus
standi is not a function of petitioners' claim that their suit is properly regar
ded as a class suit. I understand locus standi to refer to the legal interest wh
ich a plaintiff must have in the subject matter of the suit. Because of the very
broadness of the concept of "class" here involved ? membership in this "class"
appears to embrace everyone living in the country whether now or in the
future ? it appears to me that everyone who may be expected to benefit from the
course of action petitioners seek to require public respondents to take, is vest
ed with the necessary locus standi. The Court may be seen therefore to be recogn
izing a beneficiaries' right of action in the field of environmental protection,
as against both the public administrative agency directly concerned and the pri
vate persons or entities operating in the field or sector of activity involved.
Whether such beneficiaries' right of action may be found under any and all circu
mstances, or whether some failure to act, in the first instance, on the part of
the governmental agency concerned must be shown ("prior exhaustion of administra
tive remedies"), is not discussed in the decision and presumably is left for fut
ure determination in an appropriate case.
The Court has also declared that the complaint has alleged and focused upon "one
specific fundamental legal right ? the right to a balanced and healthful ecolog
y" (Decision, p. 14). There is no question that "the right to a balanced and hea
lthful ecology" is "fundamental" and that, accordingly, it has been "constitutio
nalized." But although it is fundamental in character, I suggest, with very grea
t respect, that it cannot be characterized as "specific," without doing excessiv
e violence to language. It is in fact very difficult to fashion language more co
mprehensive in scope and generalized in character than a right to "a balanced an
d healthful ecology." The list of particular claims which can be subsumed under
this rubic appears to be entirely open-ended: prevention and control of emission
of toxic fumes and smoke from factories and motor vehicles; of discharge of oil
, chemical effluents, garbage and raw sewage into rivers, inland and coastal wat
ers by vessels, oil rigs, factories, mines and whole communities; of dumping of
organic and inorganic wastes on open land, streets and thoroughfares; failure to
rehabilitate land after strip-mining or open-pit mining; kaingin or slash-and-b
urn farming; destruction of fisheries, coral reefs and other living sea resource
s through the use of dynamite or cyanide and other chemicals; contamination of g
round water resources; loss of certain species of fauna and flora; and so on. Th
e other statements pointed out by the Court: Section 3, Executive Order No. 192
dated 10 June 1987; Section 1, Title XIV, Book IV of the 1987 Administrative Cod
e; and P.D. No. 1151, dated 6 June 1977 ? all appear to be formulations of polic
y, as general and abstract as the constitutional statements of basic policy in A
rticle II, Section 16 ("the right ? to a balanced and healthful ecology") and 15
("the right to health").
P.D. No. 1152, also dated 6 June 1977, entitled "The Philippine Environment Code
," is, upon the other hand, a compendious collection of more "specific environme
nt management policies" and "environment quality standards" (fourth "Whereas" cl
ause, Preamble) relating to an extremely wide range of topics:
(a) air quality management;
(b) water quality management;
(c) land use management;
(d) natural resources management and conservation embracing:
(i) fisheries and aquatic resources;
(ii) wild life;
(iii) forestry and soil conservation;
(iv) flood control and natural calamities;
(v) energy development;
(vi) conservation and utilization of surface and ground water
(vii) mineral resources
Two (2) points are worth making in this connection. Firstly, neither petitioners
nor the Court has identified the particular provision or provisions (if any) of
the Philippine Environment Code which give rise to a specific legal right which
petitioners are seeking to enforce. Secondly, the Philippine Environment Code i
dentifies with notable care the particular government agency charged with the fo
rmulation and implementation of guidelines and programs dealing with each of the
headings and sub-headings mentioned above. The Philippine Environment Code does
not, in other words, appear to contemplate action on the part of private person
s who are beneficiaries of implementation of that Code.
As a matter of logic, by finding petitioners' cause of action as anchored on a l
egal right comprised in the constitutional statements above noted, the Court is
in effect saying that Section 15 (and Section 16) of Article II of the Constitut
ion are self-executing and judicially enforceable even in their present form. Th
e implications of this doctrine will have to be explored in future cases; those
implications are too large and far-reaching in nature even to be hinted at here.
My suggestion is simply that petitioners must, before the trial court, show a mo
re specific legal right ? a right cast in language of a significantly lower orde
r of generality than Article II (15) of the Constitution ? that is or may be vio
lated by the actions, or failures to act, imputed to the public respondent by pe
titioners so that the trial court can validly render judgment granting all or pa
rt of the relief prayed for. To my mind, the Court should be understood as simpl
y saying that such a more specific legal right or rights may well exist in our c
orpus of law, considering the general policy principles found in the Constitutio
n and the existence of the Philippine Environment Code, and that the trial court
should have given petitioners an effective opportunity so to demonstrate, inste
ad of aborting the proceedings on a motion to dismiss.
It seems to me important that the legal right which is an essential component of
a cause of action be a specific, operable legal right, rather than a constituti
onal or statutory policy, for at least two (2) reasons. One is that unless the l
egal right claimed to have been violated or disregarded is given specification i
n operational terms, defendants may well be unable to defend themselves intellig
ently and effectively; in other words, there are due process dimensions to this
matter.
The second is a broader-gauge consideration ? where a specific violation of law
or applicable regulation is not alleged or proved, petitioners can be expected t
o fall back on the expanded conception of judicial power in the second paragraph
of Section 1 of Article VIII of the Constitution which reads:
Section 1. . . .
Judicial power includes the duty of the courts of justice to settle actual contr
oversies involving rights which are legally demandable and enforceable, and to d
etermine whether or not there has been a grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of any branch or instrumentality of t
he Government. (Emphasis supplied)
When substantive standards as general as "the right to a balanced and healthy ec
ology" and "the right to health" are combined with remedial standards as broad r
anging as "a grave abuse of discretion amounting to lack or excess of jurisdicti
on," the result will be, it is respectfully submitted, to propel courts into the
uncharted ocean of social and economic policy making. At least in respect of th
e vast area of environmental protection and management, our courts have no claim
to special technical competence and experience and professional qualification.
Where no specific, operable norms and standards are shown to exist, then the pol
icy making departments ? the legislative and executive departments ? must be giv
en a real and effective opportunity to fashion and promulgate those norms and st
andards, and to implement them before the courts should intervene.
My learned brother Davide, Jr., J., rightly insists that the timber companies, w
hose concession agreements or TLA's petitioners demand public respondents should
cancel, must be impleaded in the proceedings below. It might be asked that, if
petitioners' entitlement to the relief demanded is not dependent upon proof of b
reach by the timber companies of one or more of the specific terms and condition
s of their concession agreements (and this, petitioners implicitly assume), what
will those companies litigate about? The answer I suggest is that they may seek
to dispute the existence of the specific legal right petitioners should allege,
as well as the reality of the claimed factual nexus between petitioners' specif
ic legal rights and the claimed wrongful acts or failures to act of public respo
ndent administrative agency. They may also controvert the appropriateness of the
remedy or remedies demanded by petitioners, under all the circumstances which e
xist.
I vote to grant the Petition for Certiorari because the protection of the enviro
nment, including the forest cover of our territory, is of extreme importance for
the country. The doctrines set out in the Court's decision issued today should,
however, be subjected to closer examination.
# Footnotes
1 Rollo, 164; 186.
2 Id., 62-65, exclusive of annexes.
3 Under Section 12, Rule 3, Revised Rules of Court.
4 Rollo, 67.
5 Id., 74.
6 Rollo, 70-73.
7 Annex "B" of Petitions; Id., 43-44.
8 Paragraph 7, Petition, 6; Rollo, 20.
9 Webster's Third New International Dictionary, unabridged, 1986, 1508.
10 Title XIV (Environment and Natural Resources), Book IV of the Administra
tive Code of 1987, E.O. No. 292.
11 Annex "B" of Petition; Rollo, 43-44.
12 Record of the Constitutional Commission, vol. 4, 913.
13 For instance, the Preamble and Article XII on the National Economy and P
atrimony.
14 The Reorganization Act of the Department of Environment and Natural Reso
urces.
15 E.O. No. 292.
16 Section 1.
17 Section 2.
18 Ma-ao Sugar Central Co. vs. Barrios, 79 Phil. 666 [1947]; Community Inve
stment and Finance Corp. vs. Garcia, 88 Phil. 215 [1951]; Remitere vs. Vda. de Y
ulo, 16 SCRA 251 [1966]; Casenas vs. Rosales, 19 SCRA 462 [1967]; Virata vs. San
diganbayan, 202 SCRA 680 [1991]; Madrona vs. Rosal, 204 SCRA 1 [1991].
19 Section 1(q), Rule 16, Revised Rules of Court.
20 Adamos vs. J.M. Tuason and Co., Inc. 25 SCRA 529 [1968]; Virata vs. Sand
iganbayn, supra; Madrona vs. Rosal, supra.
21 39 SCRA 473, 479 [1971].
22 1991 ed., 226-227.
23 180 SCRA 496, 501-502 [1989]. See also, Coseteng vs. Mitra, 187 SCRA 377
[1990]; Gonzales vs. Macaraig, 191 SCRA 452 [1990]; Llamas vs. Orbos, 202 SCRA
844 [1991]; Bengzon vs. Senate Blue Ribbon Committee, 203 SCRA 767 [1991].
24 Rollo, 44.
25 125 SCRA 302, 325 [1983].
26 190 SCRA 673, 684 [1990].
27 Article III, 1987 Constitution.
28 110 Phil. 198, 203 [1960]; footnotes omitted.
29 291 U.S. 502, 523, 78 L. ed. 940, 947-949.
30 22 SCRA 135, 146-147 [1968].
31 Ongsiako vs. Gamboa, 86 Phil. 50 [1950]; Abe vs. Foster Wheeler Corp. su
pra.; Phil. American Life Insurance Co. vs. Auditor General, supra.; Alalayan vs
. NPC, 24 SCRA 172[1968]; Victoriano vs. Elizalde Rope Workers' Union, 59 SCRA 5
4 [1974]; Kabiling vs. National Housing Authority, 156 SCRA 623 [1987].
The Lawphil Project - Arellano Law Foundation

6. EN BANC
[G.R. No. 118295. May 2, 1997]
WIGBERTO E. TANADA and ANNA DOMINIQUE COSETENG, as members of the Philippine Sen
ate and as taxpayers; GREGORIO ANDOLANA and JOKER ARROYO as members of the House
of Representatives and as taxpayers; NICANOR P. PERLAS and HORACIO R. MORALES,
both as taxpayers; CIVIL LIBERTIES UNION, NATIONAL ECONOMIC PROTECTIONISM ASSOCI
ATION, CENTER FOR ALTERNATIVE DEVELOPMENT INITIATIVES, LIKAS-KAYANG KAUNLARAN FO
UNDATION, INC., PHILIPPINE RURAL RECONSTRUCTION MOVEMENT, DEMOKRATIKONG KILUSAN
NG MAGBUBUKID NG PILIPINAS, INC., and PHILIPPINE PEASANT INSTITUTE, in represent
ation of various taxpayers and as non-governmental organizations, petitioners, v
s. EDGARDO ANGARA, ALBERTO ROMULO, LETICIA RAMOS-SHAHANI, HEHERSON ALVAREZ, AGAP
ITO AQUINO, RODOLFO BIAZON, NEPTALI GONZALES, ERNESTO HERRERA, JOSE LINA, GLORIA
MACAPAGAL-ARROYO, ORLANDO MERCADO, BLAS OPLE, JOHN OSMENA, SANTANINA RASUL, RAM
ON REVILLA, RAUL ROCO, FRANCISCO TATAD and FREDDIE WEBB, in their respective cap
acities as members of the Philippine Senate who concurred in the ratification by
the President of the Philippines of the Agreement Establishing the World Trade
Organization; SALVADOR ENRIQUEZ, in his capacity as Secretary of Budget and Mana
gement; CARIDAD VALDEHUESA, in her capacity as National Treasurer; RIZALINO NAVA
RRO, in his capacity as Secretary of Trade and Industry; ROBERTO SEBASTIAN, in h
is capacity as Secretary of Agriculture; ROBERTO DE OCAMPO, in his capacity as S
ecretary of Finance; ROBERTO ROMULO, in his capacity as Secretary of Foreign Aff
airs; and TEOFISTO T. GUINGONA, in his capacity as Executive Secretary, responde
nts.
D E C I S I O N
PANGANIBAN, J.:
The emergence on January 1, 1995 of the World Trade Organization, abetted by the
membership thereto of the vast majority of countries has revolutionized interna
tional business and economic relations amongst states. It has irreversibly prop
elled the world towards trade liberalization and economic globalization. Libera
lization, globalization, deregulation and privatization, the third-millennium bu
zz words, are ushering in a new borderless world of business by sweeping away as
mere historical relics the heretofore traditional modes of promoting and protec
ting national economies like tariffs, export subsidies, import quotas, quantitat
ive restrictions, tax exemptions and currency controls. Finding market niches
and becoming the best in specific industries in a market-driven and export-orien
ted global scenario are replacing age-old gbeggar-thy-neighborh policies that unil
aterally protect weak and inefficient domestic producers of goods and services.
In the words of Peter Drucker, the well-known management guru, gIncreased partic
ipation in the world economy has become the key to domestic economic growth and
prosperity.h
Brief Historical Background
To hasten worldwide recovery from the devastation wrought by the Second World Wa
r, plans for the establishment of three multilateral institutions -- inspired by
that grand political body, the United Nations -- were discussed at Dumbarton Oa
ks and Bretton Woods. The first was the World Bank (WB) which was to address th
e rehabilitation and reconstruction of war-ravaged and later developing countrie
s; the second, the International Monetary Fund (IMF) which was to deal with curr
ency problems; and the third, the International Trade Organization (ITO), which
was to foster order and predictability in world trade and to minimize unilateral
protectionist policies that invite challenge, even retaliation, from other stat
es. However, for a variety of reasons, including its non-ratification by the Un
ited States, the ITO, unlike the IMF and WB, never took off. What remained was
only GATT -- the General Agreement on Tariffs and Trade. GATT was a collection
of treaties governing access to the economies of treaty adherents with no instit
utionalized body administering the agreements or dependable system of dispute se
ttlement.
After half a century and several dizzying rounds of negotiations, principally th
e Kennedy Round, the Tokyo Round and the Uruguay Round, the world finally gave b
irth to that administering body -- the World Trade Organization -- with the sign
ing of the gFinal Acth in Marrakesh, Morocco and the ratification of the WTO Agree
ment by its members.[1]
Like many other developing countries, the Philippines joined WTO as a founding m
ember with the goal, as articulated by President Fidel V. Ramos in two letters t
o the Senate (infra), of improving gPhilippine access to foreign markets, especia
lly its major trading partners, through the reduction of tariffs on its exports,
particularly agricultural and industrial products.h The President also saw in
the WTO the opening of gnew opportunities for the services sector x x x, (the red
uction of) costs and uncertainty associated with exporting x x x, and (the attra
ction of) more investments into the country.h Although the Chief Executive did n
ot expressly mention it in his letter, the Philippines - - and this is of specia
l interest to the legal profession - - will benefit from the WTO system of dispu
te settlement by judicial adjudication through the independent WTO settlement bo
dies called (1) Dispute Settlement Panels and (2) Appellate Tribunal. Heretofor
e, trade disputes were settled mainly through negotiations where solutions were
arrived at frequently on the basis of relative bargaining strengths, and where n
aturally, weak and underdeveloped countries were at a disadvantage.
The Petition in Brief
Arguing mainly (1) that the WTO requires the Philippines gto place nationals and
products of member-countries on the same footing as Filipinos and local product
sh and (2) that the WTO gintrudes, limits and/or impairsh the constitutional powers
of both Congress and the Supreme Court, the instant petition before this Court
assails the WTO Agreement for violating the mandate of the 1987 Constitution to g
develop a self-reliant and independent national economy effectively controlled b
y Filipinos x x x (to) give preference to qualified Filipinos (and to) promote t
he preferential use of Filipino labor, domestic materials and locally produced g
oods.h
Simply stated, does the Philippine Constitution prohibit Philippine participatio
n in worldwide trade liberalization and economic globalization? Does it prescri
be Philippine integration into a global economy that is liberalized, deregulated
and privatized? These are the main questions raised in this petition for certi
orari, prohibition and mandamus under Rule 65 of the Rules of Court praying (1)
for the nullification, on constitutional grounds, of the concurrence of the Phil
ippine Senate in the ratification by the President of the Philippines of the Agr
eement Establishing the World Trade Organization (WTO Agreement, for brevity) an
d (2) for the prohibition of its implementation and enforcement through the rele
ase and utilization of public funds, the assignment of public officials and empl
oyees, as well as the use of government properties and resources by respondent-h
eads of various executive offices concerned therewith. This concurrence is embo
died in Senate Resolution No. 97, dated December 14, 1994.
The Facts
On April 15, 1994, Respondent Rizalino Navarro, then Secretary of the Departmen
t of Trade and Industry (Secretary Navarro, for brevity), representing the G
overnment of the Republic of the Philippines, signed in Marrakesh, Morocco, the
Final Act Embodying the Results of the Uruguay Round of Multilateral Negotiation
s (Final Act, for brevity).
By signing the Final Act,[2] Secretary Navarro on behalf of the Republic of the
Philippines, agreed:
g(a) to submit, as appropriate, the WTO Agreement for the consideration of their
respective competent authorities, with a view to seeking approval of the Agreeme
nt in accordance with their procedures; and
(b) to adopt the Ministerial Declarations and Decisions.h
On August 12, 1994, the members of the Philippine Senate received a letter dated
August 11, 1994 from the President of the Philippines,[3] stating among others
that gthe Uruguay Round Final Act is hereby submitted to the Senate for its concu
rrence pursuant to Section 21, Article VII of the Constitution.h
On August 13, 1994, the members of the Philippine Senate received another letter
from the President of the Philippines[4] likewise dated August 11, 1994, which
stated among others that gthe Uruguay Round Final Act, the Agreement Establishing
the World Trade Organization, the Ministerial Declarations and Decisions, and t
he Understanding on Commitments in Financial Services are hereby submitted to th
e Senate for its concurrence pursuant to Section 21, Article VII of the Constitu
tion.h
On December 9, 1994, the President of the Philippines certified the necessity of
the immediate adoption of P.S. 1083, a resolution entitled gConcurring in the Ra
tification of the Agreement Establishing the World Trade Organization.h[5]
On December 14, 1994, the Philippine Senate adopted Resolution No. 97 which gReso
lved, as it is hereby resolved, that the Senate concur, as it hereby concurs, i
n the ratification by the President of the Philippines of the Agreement Establi
shing the World Trade Organization.h[6] The text of the WTO Agreement is written
on pages 137 et seq. of Volume I of the 36-volume Uruguay Round of Multilateral
Trade Negotiations and includes various agreements and associated legal instrume
nts (identified in the said Agreement as Annexes 1, 2 and 3 thereto and collecti
vely referred to as Multilateral Trade Agreements, for brevity) as follows:
gANNEX 1
Annex 1A: Multilateral Agreement on Trade in Goods
General Agreement on Tariffs and Trade 1994
Agreement on Agriculture
Agreement on the Application of Sanitary and
Phytosanitary Measures
Agreement on Textiles and Clothing
Agreement on Technical Barriers to Trade
Agreement on Trade-Related Investment Measures
Agreement on Implementation of Article VI of the General Agreement on Tariffs
and Trade 1994
Agreement on Implementation of Article VII of the General on Tariffs and Trade 1
994
Agreement on Pre-Shipment Inspection
Agreement on Rules of Origin
Agreement on Imports Licensing Procedures
Agreement on Subsidies and Coordinating Measures
Agreement on Safeguards
Annex 1B: General Agreement on Trade in Services and Annexes
Annex 1C: Agreement on Trade-Related Aspects of Intellectual Property Rights
ANNEX 2
Understanding on Rules and Procedures Governing the Settlement of Disputes
ANNEX 3
Trade Policy Review Mechanismh
On December 16, 1994, the President of the Philippines signed[7] the Instrument
of Ratification, declaring:
gNOW THEREFORE, be it known that I, FIDEL V. RAMOS, President of the Republic of
the Philippines, after having seen and considered the aforementioned Agreement E
stablishing the World Trade Organization and the agreements and associated legal
instruments included in Annexes one (1), two (2) and three (3) of that Agreemen
t which are integral parts thereof, signed at Marrakesh, Morocco on 15 April 199
4, do hereby ratify and confirm the same and every Article and Clause thereof.h
To emphasize, the WTO Agreement ratified by the President of the Philippines is
composed of the Agreement Proper and gthe associated legal instruments included i
n Annexes one (1), two (2) and three (3) of that Agreement which are integral pa
rts thereof.h
On the other hand, the Final Act signed by Secretary Navarro embodies not only t
he WTO Agreement (and its integral annexes aforementioned) but also (1) the Mini
sterial Declarations and Decisions and (2) the Understanding on Commitments in F
inancial Services. In his Memorandum dated May 13, 1996,[8] the Solicitor Gene
ral describes these two latter documents as follows:
gThe Ministerial Decisions and Declarations are twenty-five declarations and deci
sions on a wide range of matters, such as measures in favor of least developed c
ountries, notification procedures, relationship of WTO with the International Mo
netary Fund (IMF), and agreements on technical barriers to trade and on dispute
settlement.
The Understanding on Commitments in Financial Services dwell on, among other thi
ngs, standstill or limitations and qualifications of commitments to existing non
-conforming measures, market access, national treatment, and definitions of non-
resident supplier of financial services, commercial presence and new financial s
ervice.h
On December 29, 1994, the present petition was filed. After careful deliberatio
n on respondentsf comment and petitionersf reply thereto, the Court resolved on De
cember 12, 1995, to give due course to the petition, and the parties thereafter
filed their respective memoranda. The Court also requested the Honorable Lilia
R. Bautista, the Philippine Ambassador to the United Nations stationed in Geneva
, Switzerland, to submit a paper, hereafter referred to as gBautista Paper,h[9] fo
r 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:
g(a) the petitioners to submit the (1) Senate Committee Report on the matter in c
ontroversy and (2) the transcript of proceedings/hearings in the Senate; and
(b) the Solicitor General, as counsel for respondents, to file (1) a list of Phi
lippine treaties signed prior to the Philippine adherence to the WTO Agreement,
which derogate from Philippine sovereignty and (2) copies of the multi-volume WT
O Agreement and other documents mentioned in the Final Act, as soon as possible.h
After receipt of the foregoing documents, the Court said it would consider the c
ase submitted for resolution. In a Compliance dated September 16, 1996, the Sol
icitor General submitted a printed copy of the 36-volume Uruguay Round of Multil
ateral Trade Negotiations, and in another Compliance dated October 24, 1996, he
listed the various gbilateral or multilateral treaties or international instrumen
ts involving derogation of Philippine sovereignty.h Petitioners, on the other ha
nd, submitted their Compliance dated January 28, 1997, on January 30, 1997.
The Issues
In their Memorandum dated March 11, 1996, petitioners summarized the issues as f
ollows:
gA. Whether the petition presents a political question or is otherwise not justi
ciable.
B. Whether the petitioner members of the Senate who participated in the deliber
ations and voting leading to the concurrence are estopped from impugning the val
idity of the Agreement Establishing the World Trade Organization or of the valid
ity of the concurrence.
C. Whether the provisions of the Agreement Establishing the World Trade Organi
zation contravene the provisions of Sec. 19, Article II, and Secs. 10 and 12, Ar
ticle XII, all of the 1987 Philippine Constitution.
D. Whether provisions of the Agreement Establishing the World Trade Organizatio
n unduly limit, restrict and impair Philippine sovereignty specifically the legi
slative power which, under Sec. 2, Article VI, 1987 Philippine Constitution is ev
ested in the Congress of the Philippinesf;
E. Whether provisions of the Agreement Establishing the World Trade Organizati
on interfere with the exercise of judicial power.
F. Whether the respondent members of the Senate acted in grave abuse of discre
tion amounting to lack or excess of jurisdiction when they voted for concurrence
in the ratification of the constitutionally-infirm Agreement Establishing the W
orld Trade Organization.
G. Whether the respondent members of the Senate acted in grave abuse of discret
ion amounting to lack or excess of jurisdiction when they concurred only in the
ratification of the Agreement Establishing the World Trade Organization, and not
with the Presidential submission which included the Final Act, Ministerial Decl
aration and Decisions, and the Understanding on Commitments in Financial Service
s.h
On the other hand, the Solicitor General as counsel for respondents gsynthesized
the several issues raised by petitioners into the followingh:[10]
g1. Whether or not the provisions of the eAgreement Establishing the World Trade
Organization and the Agreements and Associated Legal Instruments included in Ann
exes one (1), two (2) and three (3) of that agreementf cited by petitioners direc
tly contravene or undermine the letter, spirit and intent of Section 19, Article
II and Sections 10 and 12, Article XII of the 1987 Constitution.
2. Whether or not certain provisions of the Agreement unduly limit, restrict or
impair the exercise of legislative power by Congress.
3. Whether or not certain provisions of the Agreement impair the exercise of ju
dicial power by this Honorable Court in promulgating the rules of evidence.
4. Whether or not the concurrence of the Senate ein the ratification by the Pres
ident of the Philippines of the Agreement establishing the World Trade Organizat
ionf implied rejection of the treaty embodied in the Final Act.h
By raising and arguing only four issues against the seven presented by petitione
rs, the Solicitor General has effectively ignored three, namely: (1) whether the
petition presents a political question or is otherwise not justiciable; (2) whe
ther petitioner-members of the Senate (Wigberto E. Tanada and Anna Dominique Cos
eteng) are estopped from joining this suit; and (3) whether the respondent-membe
rs of the Senate acted in grave abuse of discretion when they voted for concurre
nce in the ratification of the WTO Agreement. The foregoing notwithstanding, th
is Court resolved to deal with these three issues thus:
(1) The gpolitical questionh issue -- being very fundamental and vital, and being
a matter that probes into the very jurisdiction of this Court to hear and decid
e this case -- was deliberated upon by the Court and will thus be ruled upon as
the first issue;
(2) The matter of estoppel will not be taken up because this defense is waivabl
e and the respondents have effectively waived it by not pursuing it in any of th
eir pleadings; in any event, this issue, even if ruled in respondentsf favor, wil
l not cause the petitionfs dismissal as there are petitioners other than the two
senators, who are not vulnerable to the defense of estoppel; and
(3) The issue of alleged grave abuse of discretion on the part of the responden
t senators will be taken up as an integral part of the disposition of the four i
ssues raised by the Solicitor General.
During its deliberations on the case, the Court noted that the respondents did n
ot question the locus standi of petitioners. Hence, they are also deemed to hav
e waived the benefit of such issue. They probably realized that grave constitut
ional issues, expenditures of public funds and serious international commitments
of the nation are involved here, and that transcendental public interest requir
es that the substantive issues be met head on and decided on the merits, rather
than skirted or deflected by procedural matters.[11]
To recapitulate, the issues that will be ruled upon shortly are:
(1) DOES THE PETITION PRESENT A JUSTICIABLE CONTROVERSY? OTHERWISE STATED, DOES
THE PETITION INVOLVE A POLITICAL QUESTION OVER WHICH THIS COURT HAS NO JURISDIC
TION?
(2) DO THE PROVISIONS OF THE WTO AGREEMENT AND ITS THREE ANNEXES CONTRAVENE SEC.
19, ARTICLE II, AND SECS. 10 AND 12, ARTICLE XII, OF THE PHILIPPINE CONSTITUTIO
N?
(3) DO THE PROVISIONS OF SAID AGREEMENT AND ITS ANNEXES LIMIT, RESTRICT, OR IMP
AIR THE EXERCISE OF LEGISLATIVE POWER BY CONGRESS?
(4) DO SAID PROVISIONS UNDULY IMPAIR OR INTERFERE WITH THE EXERCISE OF JUDICIAL
POWER BY THIS COURT IN PROMULGATING RULES ON EVIDENCE?
(5) WAS THE CONCURRENCE OF THE SENATE IN THE WTO AGREEMENT AND ITS ANNEXES SUFFI
CIENT AND/OR VALID, CONSIDERING THAT IT DID NOT INCLUDE THE FINAL ACT, MINISTERI
AL DECLARATIONS AND DECISIONS, AND THE UNDERSTANDING ON COMMITMENTS IN FINANCIAL
SERVICES?
The First Issue: Does the Court Have Jurisdiction Over the Controversy?
In seeking to nullify an act of the Philippine Senate on the ground that it cont
ravenes the Constitution, the petition no doubt raises a justiciable controversy
. Where an action of the legislative branch is seriously alleged to have infrin
ged the Constitution, it becomes not only the right but in fact the duty of the
judiciary to settle the dispute. gThe question thus posed is judicial rather tha
n political. The duty (to adjudicate) remains to assure that the supremacy of t
he Constitution is upheld.h[12] Once a gcontroversy as to the application or inter
pretation of a constitutional provision is raised before this Court (as in the i
nstant case), it becomes a legal issue which the Court is bound by constitutiona
l mandate to decide.h[13]
The jurisdiction of this Court to adjudicate the matters[14] raised in the petit
ion is clearly set out in the 1987 Constitution,[15] as follows:
gJudicial power includes the duty of the courts of justice to settle actual contr
oversies involving rights which are legally demandable and enforceable, and to d
etermine whether or not there has been a grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of any branch or instrumentality of t
he government.h
The foregoing text emphasizes the judicial departmentfs duty and power to strike
down grave abuse of discretion on the part of any branch or instrumentality of g
overnment including Congress. It is an innovation in our political law.[16] As
explained by former Chief Justice Roberto Concepcion,[17] gthe judiciary is the f
inal arbiter on the question of whether or not a branch of government or any of
its officials has acted without jurisdiction or in excess of jurisdiction or so
capriciously as to constitute an abuse of discretion amounting to excess of juri
sdiction. This is not only a judicial power but a duty to pass judgment on matt
ers of this nature.h
As this Court has repeatedly and firmly emphasized in many cases,[18] it will no
t shirk, digress from or abandon its sacred duty and authority to uphold the Con
stitution in matters that involve grave abuse of discretion brought before it in
appropriate cases, committed by any officer, agency, instrumentality or departm
ent of the government.
As the petition alleges grave abuse of discretion and as there is no other plain
, speedy or adequate remedy in the ordinary course of law, we have no hesitation
at all in holding that this petition should be given due course and the vital q
uestions raised therein ruled upon under Rule 65 of the Rules of Court. Indeed,
certiorari, prohibition and mandamus are appropriate remedies to raise constitu
tional issues and to review and/or prohibit/nullify, when proper, acts of legisl
ative and executive officials. On this, we have no equivocation.
We should stress that, in deciding to take jurisdiction over this petition, this
Court will not review the wisdom of the decision of the President and the Senat
e in enlisting the country into the WTO, or pass upon the merits of trade libera
lization as a policy espoused by said international body. Neither will it rule
on the propriety of the governmentfs economic policy of reducing/removing tariffs
, taxes, subsidies, quantitative restrictions, and other import/trade barriers.
Rather, it will only exercise its constitutional duty gto determine whether or n
ot there had been a grave abuse of discretion amounting to lack or excess of jur
isdictionh on the part of the Senate in ratifying the WTO Agreement and its three
annexes.
Second Issue: The WTO Agreement and Economic Nationalism
This is the lis mota, the main issue, raised by the petition.
Petitioners vigorously argue that the gletter, spirit and intenth of the Constitut
ion mandating geconomic nationalismh are violated by the so-called gparity provisio
nsh and gnational treatmenth clauses scattered in various parts not only of the WTO
Agreement and its annexes but also in the Ministerial Decisions and Declaration
s and in the Understanding on Commitments in Financial Services.
Specifically, the gflagshiph constitutional provisions referred to are Sec. 19, Ar
ticle II, and Secs. 10 and 12, Article XII, of the Constitution, which are worde
d as follows:
gArticle II
DECLARATION OF PRINCIPLES AND STATE POLICIES
xx xx
xx
xx
Sec. 19. The State shall develop a self-reliant and independent national econom
y effectively controlled by Filipinos.
xx xx
xx
xx
Article XII
NATIONAL ECONOMY AND PATRIMONY
xx xx
xx
xx
Sec. 10. x x x. The Congress shall enact measures that will encourage the for
mation and operation of enterprises whose capital is wholly owned by Filipinos.
In the grant of rights, privileges, and concessions covering the national econom
y and patrimony, the State shall give preference to qualified Filipinos.
xx xx
xx
xx
Sec. 12. The State shall promote the preferential use of Filipino labor, domest
ic materials and locally produced goods, and adopt measures that help make them
competitive.h
Petitioners aver that these sacred constitutional principles are desecrated by t
he following WTO provisions quoted in their memorandum:[19]
ga) In the area of investment measures related to trade in goods (TRIMS, for bre
vity):
gArticle 2
National Treatment and Quantitative Restrictions.
1. Without prejudice to other rights and obligations under GATT 1994. no Member
shall apply any TRIM that is inconsistent with the provisions of Article III or
Article XI of GATT 1994.
2. An Illustrative list of TRIMS that are inconsistent with the obligations of g
eneral elimination of quantitative restrictions provided for in paragraph I of A
rticle XI of GATT 1994 is contained in the Annex to this Agreement.h (Agreement
on Trade-Related Investment Measures, Vol. 27, Uruguay Round, Legal Instruments,
p.22121, emphasis supplied).
The Annex referred to reads as follows:
gANNEX
Illustrative List
1. TRIMS that are inconsistent with the obligation of national treatment provide
d for in paragraph 4 of Article III of GATT 1994 include those which are mandato
ry or enforceable under domestic law or under administrative rulings, or complia
nce with which is necessary to obtain an advantage, and which require:
(a) the purchase or use by an enterprise of products of domestic origin or from
any domestic source, whether specified in terms of particular products, in term
s of volume or value of products, or in terms of proportion of volume or value o
f its local production; or
(b) that an enterprisefs purchases or use of imported products be limited to an
amount related to the volume or value of local products that it exports.
2. TRIMS that are inconsistent with the obligations of general elimination of q
uantitative restrictions provided for in paragraph 1 of Article XI of GATT 1994
include those which are mandatory or enforceable under domestic laws or under ad
ministrative rulings, or compliance with which is necessary to obtain an advanta
ge, and which restrict:
(a) the importation by an enterprise of products used in or related to the loca
l production that it exports;
(b) the importation by an enterprise of products used in or related to its local
production by restricting its access to foreign exchange inflows attributable t
o the enterprise; or
(c) the exportation or sale for export specified in terms of particular product
s, in terms of volume or value of products, or in terms of a preparation of volu
me or value of its local production.h (Annex to the Agreement on Trade-Related I
nvestment Measures, Vol. 27, Uruguay Round Legal Documents, p.22125, emphasis su
pplied).
The paragraph 4 of Article III of GATT 1994 referred to is quoted as follows:
The products of the territory of any contracting party imported into the territo
ry of any other contracting party shall be accorded treatment no less favorable
than that accorded to like products of national origin in respect of laws, regul
ations and requirements affecting their internal sale, offering for sale, purcha
se, transportation, distribution or use. the provisions of this paragraph shall
not prevent the application of differential internal transportation charges whi
ch are based exclusively on the economic operation of the means of transport and
not on the nationality of the product.h (Article III, GATT 1947, as amended by
the Protocol Modifying Part II, and Article XXVI of GATT, 14 September 1948, 62
UMTS 82-84 in relation to paragraph 1(a) of the General Agreement on Tariffs and
Trade 1994, Vol. 1, Uruguay Round, Legal Instruments p.177, emphasis supplied).
gb) In the area of trade related aspects of intellectual property rights (TRIPS,
for brevity):
Each Member shall accord to the nationals of other Members treatment no less fav
ourable than that it accords to its own nationals with regard to the protection
of intellectual property... (par. 1, Article 3, Agreement on Trade-Related Aspe
ct of Intellectual Property rights, Vol. 31, Uruguay Round, Legal Instruments, p
.25432 (emphasis supplied)
g(c) In the area of the General Agreement on Trade in Services:
National Treatment
1. In the sectors inscribed in its schedule, and subject to any conditions and q
ualifications set out therein, each Member shall accord to services and service
suppliers of any other Member, in respect of all measures affecting the supply o
f services, treatment no less favourable than it accords to its own like service
s and service suppliers.
2. A Member may meet the requirement of paragraph I by according to services and
service suppliers of any other Member, either formally identical treatment or f
ormally different treatment to that it accords to its own like services and serv
ice suppliers.
3. Formally identical or formally different treatment shall be considered to be
less favourable if it modifies the conditions of completion in favour of service
s or service suppliers of the Member compared to like services or service suppli
ers of any other Member. (Article XVII, General Agreement on Trade in Services,
Vol. 28, Uruguay Round Legal Instruments, p.22610 emphasis supplied).h
It is petitionersf position that the foregoing gnational treatmenth and gparity prov
isionsh of the WTO Agreement gplace nationals and products of member countries on
the same footing as Filipinos and local products,h in contravention of the gFilip
ino Firsth policy of the Constitution. They allegedly render meaningless the ph
rase geffectively controlled by Filipinos.h The constitutional conflict becomes m
ore manifest when viewed in the context of the clear duty imposed on the Philipp
ines as a WTO member to ensure the conformity of its laws, regulations and admin
istrative procedures with its obligations as provided in the annexed agreements.
[20] Petitioners further argue that these provisions contravene constitutional l
imitations on the role exports play in national development and negate the prefe
rential treatment accorded to Filipino labor, domestic materials and locally pro
duced goods.
On the other hand, respondents through the Solicitor General counter (1) that su
ch Charter provisions are not self-executing and merely set out general policie
s; (2) that these nationalistic portions of the Constitution invoked by petition
ers should not be read in isolation but should be related to other relevant prov
isions of Art. XII, particularly Secs. 1 and 13 thereof; (3) that read properly,
the cited WTO clauses do not conflict with the Constitution; and (4) that the W
TO Agreement contains sufficient provisions to protect developing countries like
the Philippines from the harshness of sudden trade liberalization.
We shall now discuss and rule on these arguments.
Declaration of Principles Not Self-Executing
By its very title, Article II of the Constitution is a gdeclaration of principles
and state policies.h The counterpart of this article in the 1935 Constitution[2
1] is called the gbasic political creed of the nationh by Dean Vicente Sinco.[22]
These principles in Article II are not intended to be self-executing principles
ready for enforcement through the courts.[23] They are used by the judiciary as
aids or as guides in the exercise of its power of judicial review, and by the l
egislature in its enactment of laws. As held in the leading case of Kilosbayan,
Incorporated vs. Morato,[24] the principles and state policies enumerated in Ar
ticle II and some sections of Article XII are not gself-executing provisions, the
disregard of which can give rise to a cause of action in the courts. They do n
ot embody judicially enforceable constitutional rights but guidelines for legisl
ation.h
In the same light, we held in Basco vs. Pagcor[25] that broad constitutional pri
nciples need legislative enactments to implement them, thus:
gOn petitionersf allegation that P.D. 1869 violates Sections 11 (Personal Dignity)
12 (Family) and 13 (Role of Youth) of Article II; Section 13 (Social Justice) o
f Article XIII and Section 2 (Educational Values) of Article XIV of the 1987 Con
stitution, suffice it to state also that these are merely statements of principl
es and policies. As such, they are basically not self-executing, meaning a law
should be passed by Congress to clearly define and effectuate such principles.
eIn general, therefore, the 1935 provisions were not intended to be self-executin
g principles ready for enforcement through the courts. They were rather directi
ves addressed to the executive and to the legislature. If the executive and the
legislature failed to heed the directives of the article, the available remedy
was not judicial but political. The electorate could express their displeasure
with the failure of the executive and the legislature through the language of th
e ballot. (Bernas, Vol. II, p. 2).h
The reasons for denying a cause of action to an alleged infringement of broad co
nstitutional principles are sourced from basic considerations of due process and
the lack of judicial authority to wade ginto the uncharted ocean of social and e
conomic policy making.h Mr. Justice Florentino P. Feliciano in his concurring op
inion in Oposa vs. Factoran, Jr.,[26] explained these reasons as follows:
gMy suggestion is simply that petitioners must, before the trial court, show a mo
re specific legal right -- a right cast in language of a significantly lower ord
er of generality than Article II (15) of the Constitution -- that is or may be v
iolated by the actions, or failures to act, imputed to the public respondent by
petitioners so that the trial court can validly render judgment granting all or
part of the relief prayed for. To my mind, the court should be understood as si
mply saying that such a more specific legal right or rights may well exist in ou
r corpus of law, considering the general policy principles found in the Constitu
tion and the existence of the Philippine Environment Code, and that the trial co
urt should have given petitioners an effective opportunity so to demonstrate, in
stead of aborting the proceedings on a motion to dismiss.
It seems to me important that the legal right which is an essential component of
a cause of action be a specific, operable legal right, rather than a constituti
onal or statutory policy, for at least two (2) reasons. One is that unless the
legal right claimed to have been violated or disregarded is given specification
in operational terms, defendants may well be unable to defend themselves intelli
gently and effectively; in other words, there are due process dimensions to this
matter.
The second is a broader-gauge consideration -- where a specific violation of law
or applicable regulation is not alleged or proved, petitioners can be expected
to fall back on the expanded conception of judicial power in the second paragrap
h of Section 1 of Article VIII of the Constitution which reads:
eSection 1. x x x
Judicial power includes the duty of the courts of justice to settle actual contr
oversies involving rights which are legally demandable and enforceable, and to d
etermine whether or not there has been a grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of any branch or instrumentality of t
he Government.f (Emphases supplied)
When substantive standards as general as ethe right to a balanced and healthy eco
logyf and ethe right to healthf are combined with remedial standards as broad rangi
ng as ea grave abuse of discretion amounting to lack or excess of jurisdiction,f t
he result will be, it is respectfully submitted, to propel courts into the uncha
rted ocean of social and economic policy making. At least in respect of the vas
t area of environmental protection and management, our courts have no claim to s
pecial technical competence and experience and professional qualification. Wher
e no specific, operable norms and standards are shown to exist, then the policy
making departments -- the legislative and executive departments -- must be given
a real and effective opportunity to fashion and promulgate those norms and stan
dards, and to implement them before the courts should intervene.h
Economic Nationalism Should Be Read with Other Constitutional Mandates to Attain
Balanced Development of Economy
On the other hand, Secs. 10 and 12 of Article XII, apart from merely laying down
general principles relating to the national economy and patrimony, should be re
ad and understood in relation to the other sections in said article, especially
Secs. 1 and 13 thereof which read:
gSection 1. The goals of the national economy are a more equitable distribution o
f opportunities, income, and wealth; a sustained increase in the amount of goods
and services produced by the nation for the benefit of the people; and an expan
ding productivity as the key to raising the quality of life for all, especially
the underprivileged.
The State shall promote industrialization and full employment based on sound agr
icultural development and agrarian reform, through industries that make full and
efficient use of human and natural resources, and which are competitive in both
domestic and foreign markets. However, the State shall protect Filipino enterp
rises against unfair foreign competition and trade practices.
In the pursuit of these goals, all sectors of the economy and all regions of the
country shall be given optimum opportunity to develop. x x x
x x x x x x
x x
x
Sec. 13. The State shall pursue a trade policy that serves the general welfare
and utilizes all forms and arrangements of exchange on the basis of equality and
reciprocity.h
As pointed out by the Solicitor General, Sec. 1 lays down the basic goals of nat
ional economic development, as follows:
1. A more equitable distribution of opportunities, income and wealth;
2. A sustained increase in the amount of goods and services provided by the nat
ion for the benefit of the people; and
3. An expanding productivity as the key to raising the quality of life for all
especially the underprivileged.
With these goals in context, the Constitution then ordains the ideals of economi
c nationalism (1) by expressing preference in favor of qualified Filipinos gin th
e grant of rights, privileges and concessions covering the national economy and
patrimonyh[27] and in the use of gFilipino labor, domestic materials and locally-p
roduced goodsh; (2) by mandating the State to gadopt measures that help make them
competitive;[28] and (3) by requiring the State to gdevelop a self-reliant and in
dependent national economy effectively controlled by Filipinos.h[29] In similar l
anguage, the Constitution takes into account the realities of the outside world
as it requires the pursuit of ga trade policy that serves the general welfare and
utilizes all forms and arrangements of exchange on the basis of equality and re
ciprocityh;[30] and speaks of industries gwhich are competitive in both domestic a
nd foreign marketsh as well as of the protection of gFilipino enterprises against
unfair foreign competition and trade practices.h
It is true that in the recent case of Manila Prince Hotel vs. Government Service
Insurance System, et al.,[31] this Court held that gSec. 10, second par., Art. X
II of the 1987 Constitution is a mandatory, positive command which is complete i
n 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 legisl
ation to put it in operation. It is per se judicially enforceable.h However, as
the constitutional provision itself states, it is enforceable only in regard to
gthe grants of rights, privileges and concessions covering national economy and
patrimonyh and not to every aspect of trade and commerce. It refers to exception
s rather than the rule. The issue here is not whether this paragraph of Sec. 10
of Art. XII is self-executing or not. Rather, the issue is whether, as a rule,
there are enough balancing provisions in the Constitution to allow the Senate t
o ratify the Philippine concurrence in the WTO Agreement. And we hold that ther
e are.
All told, while the Constitution indeed mandates a bias in favor of Filipino goo
ds, services, labor and enterprises, at the same time, it recognizes the need fo
r business exchange with the rest of the world on the bases of equality and reci
procity and limits protection of Filipino enterprises only against foreign compe
tition and trade practices that are unfair.[32] In other words, the Constitution
did not intend to pursue an isolationist policy. It did not shut out foreign i
nvestments, goods and services in the development of the Philippine economy. Wh
ile the Constitution does not encourage the unlimited entry of foreign goods, se
rvices and investments into the country, it does not prohibit them either. In f
act, it allows an exchange on the basis of equality and reciprocity, frowning on
ly on foreign competition that is unfair.
WTO Recognizes Need to Protect Weak Economies
Upon the other hand, respondents maintain that the WTO itself has some built-in
advantages to protect weak and developing economies, which comprise the vast maj
ority of its members. Unlike in the UN where major states have permanent seats
and veto powers in the Security Council, in the WTO, decisions are made on the b
asis of sovereign equality, with each memberfs vote equal in weight to that of an
y other. There is no WTO equivalent of the UN Security Council.
gWTO decides by consensus whenever possible, otherwise, decisions of the Minister
ial Conference and the General Council shall be taken by the majority of the vot
es cast, except in cases of interpretation of the Agreement or waiver of the obl
igation of a member which would require three fourths vote. Amendments would re
quire two thirds vote in general. Amendments to MFN provisions and the Amendmen
ts provision will require assent of all members. Any member may withdraw from t
he Agreement upon the expiration of six months from the date of notice of withdr
awals.h[33]
Hence, poor countries can protect their common interests more effectively throug
h the WTO than through one-on-one negotiations with developed countries. Within
the WTO, developing countries can form powerful blocs to push their economic ag
enda more decisively than outside the Organization. This is not merely a matter
of practical alliances but a negotiating strategy rooted in law. Thus, the bas
ic principles underlying the WTO Agreement recognize the need of developing coun
tries like the Philippines to gshare in the growth in international trade commens
urate with the needs of their economic development.h These basic principles are
found in the preamble[34] of the WTO Agreement as follows:
gThe Parties to this Agreement,
Recognizing that their relations in the field of trade and economic endeavour sh
ould be conducted with a view to raising standards of living, ensuring full empl
oyment and a large and steadily growing volume of real income and effective dema
nd, and expanding the production of and trade in goods and services, while allow
ing for the optimal use of the worldfs resources in accordance with the objective
of sustainable development, seeking both to protect and preserve the environmen
t and to enhance the means for doing so in a manner consistent with their respec
tive needs and concerns at different levels of economic development,
Recognizing further that there is need for positive efforts designed to ensure t
hat developing countries, and especially the least developed among them, secure
a share in the growth in international trade commensurate with the needs of thei
r economic development,
Being desirous of contributing to these objectives by entering into reciprocal a
nd mutually advantageous arrangements directed to the substantial reduction of t
ariffs and other barriers to trade and to the elimination of discriminatory trea
tment in international trade relations,
Resolved, therefore, to develop an integrated, more viable and durable multilate
ral trading system encompassing the General Agreement on Tariffs and Trade, the
results of past trade liberalization efforts, and all of the results of the Urug
uay Round of Multilateral Trade Negotiations,
Determined to preserve the basic principles and to further the objectives underl
ying this multilateral trading system, x x x.h (underscoring supplied.)
Specific WTO Provisos Protect Developing Countries
So too, the Solicitor General points out that pursuant to and consistent with th
e foregoing basic principles, the WTO Agreement grants developing countries a mo
re lenient treatment, giving their domestic industries some protection from the
rush of foreign competition. Thus, with respect to tariffs in general, preferen
tial treatment is given to developing countries in terms of the amount of tariff
reduction and the period within which the reduction is to be spread out. Speci
fically, GATT requires an average tariff reduction rate of 36% for developed cou
ntries to be effected within a period of six (6) years while developing countrie
s -- including the Philippines -- are required to effect an average tariff reduc
tion of only 24% within ten (10) years.
In respect to domestic subsidy, GATT requires developed countries to reduce dome
stic support to agricultural products by 20% over six (6) years, as compared to
only 13% for developing countries to be effected within ten (10) years.
In regard to export subsidy for agricultural products, GATT requires developed c
ountries to reduce their budgetary outlays for export subsidy by 36% and export
volumes receiving export subsidy by 21% within a period of six (6) years. For d
eveloping countries, however, the reduction rate is only two-thirds of that pres
cribed for developed countries and a longer period of ten (10) years within whic
h to effect such reduction.
Moreover, GATT itself has provided built-in protection from unfair foreign compe
tition and trade practices including anti-dumping measures, countervailing measu
res and safeguards against import surges. Where local businesses are jeopardize
d by unfair foreign competition, the Philippines can avail of these measures. T
here is hardly therefore any basis for the statement that under the WTO, local i
ndustries and enterprises will all be wiped out and that Filipinos will be depri
ved of control of the economy. Quite the contrary, the weaker situations of dev
eloping nations like the Philippines have been taken into account; thus, there w
ould be no basis to say that in joining the WTO, the respondents have gravely ab
used their discretion. True, they have made a bold decision to steer the ship o
f state into the yet uncharted sea of economic liberalization. But such decisio
n cannot be set aside on the ground of grave abuse of discretion, simply becaus
e we disagree with it or simply because we believe only in other economic polici
es. As earlier stated, the Court in taking jurisdiction of this case will not
pass upon the advantages and disadvantages of trade liberalization as an economi
c policy. It will only perform its constitutional duty of determining whether t
he Senate committed grave abuse of discretion.
Constitution Does Not Rule Out Foreign Competition
Furthermore, the constitutional policy of a gself-reliant and independent nationa
l economyh[35] does not necessarily rule out the entry of foreign investments, go
ods and services. It contemplates neither geconomic seclusionh nor gmendicancy in
the international community.h As explained by Constitutional Commissioner Bernar
do Villegas, sponsor of this constitutional policy:
gEconomic self-reliance is a primary objective of a developing country that is ke
enly aware of overdependence on external assistance for even its most basic need
s. It does not mean autarky or economic seclusion; rather, it means avoiding me
ndicancy in the international community. Independence refers to the freedom fro
m undue foreign control of the national economy, especially in such strategic in
dustries as in the development of natural resources and public utilities.h[36]
The WTO reliance on gmost favored nation,h gnational treatment,h and gtrade without d
iscriminationh cannot be struck down as unconstitutional as in fact they are rule
s of equality and reciprocity that apply to all WTO members. Aside from envisio
ning a trade policy based on gequality and reciprocity,h[37] the fundamental law e
ncourages industries that are gcompetitive in both domestic and foreign markets,h
thereby demonstrating a clear policy against a sheltered domestic trade environm
ent, but one in favor of the gradual development of robust industries that can c
ompete with the best in the foreign markets. Indeed, Filipino managers and Fili
pino enterprises have shown capability and tenacity to compete internationally.
And given a free trade environment, Filipino entrepreneurs and managers in Hong
kong have demonstrated the Filipino capacity to grow and to prosper against the
best offered under a policy of laissez faire.
Constitution Favors Consumers, Not Industries or Enterprises
The Constitution has not really shown any unbalanced bias in favor of any busine
ss or enterprise, nor does it contain any specific pronouncement that Filipino c
ompanies should be pampered with a total proscription of foreign competition
. On the other hand, respondents claim that WTO/GATT aims to make availabl
e to the Filipino consumer the best goods and services obtainable anywhere in th
e world at the most reasonable prices. Consequently, the question boils down to
whether WTO/GATT will favor the general welfare of the public at large.
Will adherence to the WTO treaty bring this ideal (of favoring the general welfa
re) to reality?
Will WTO/GATT succeed in promoting the Filipinosf general welfare because it will
-- as promised by its promoters -- expand the countryfs exports and generate mor
e employment?
Will it bring more prosperity, employment, purchasing power and quality products
at the most reasonable rates to the Filipino public?
The responses to these questions involve gjudgment callsh by our policy makers, fo
r which they are answerable to our people during appropriate electoral exercises
. Such questions and the answers thereto are not subject to judicial pronouncem
ents based on grave abuse of discretion.
Constitution Designed to Meet Future Events and Contingencies
No doubt, the WTO Agreement was not yet in existence when the Constitution was d
rafted and ratified in 1987. That does not mean however that the Charter is nec
essarily flawed in the sense that its framers might not have anticipated the adv
ent of a borderless world of business. By the same token, the United Nations w
as not yet in existence when the 1935 Constitution became effective. Did that n
ecessarily mean that the then Constitution might not have contemplated a diminut
ion of the absoluteness of sovereignty when the Philippines signed the UN Charte
r, thereby effectively surrendering part of its control over its foreign relatio
ns to the decisions of various UN organs like the Security Council?
It is not difficult to answer this question. Constitutions are designed to meet
not only the vagaries of contemporary events. They should be interpreted to co
ver even future and unknown circumstances. It is to the credit of its drafters
that a Constitution can withstand the assaults of bigots and infidels but at the
same time bend with the refreshing winds of change necessitated by unfolding ev
ents. As one eminent political law writer and respected jurist[38] explains:
gThe Constitution must be quintessential rather than superficial, the root and no
t the blossom, the base and framework only of the edifice that is yet to rise.
It is but the core of the dream that must take shape, not in a twinkling by mand
ate of our delegates, but slowly ein the crucible of Filipino minds and hearts,f w
here it will in time develop its sinews and gradually gather its strength and fi
nally achieve its substance. In fine, the Constitution cannot, like the goddess
Athena, rise full-grown from the brow of the Constitutional Convention, nor can
it conjure by mere fiat an instant Utopia. It must grow with the society it se
eks to re-structure and march apace with the progress of the race, drawing from
the vicissitudes of history the dynamism and vitality that will keep it, far fro
m becoming a petrified rule, a pulsing, living law attuned to the heartbeat of t
he nation.h
Third Issue: The WTO Agreement and Legislative Power
The WTO Agreement provides that g(e)ach Member shall ensure the conformity of its
laws, regulations and administrative procedures with its obligations as provide
d in the annexed Agreements.h[39] Petitioners maintain that this undertaking gundu
ly limits, restricts and impairs Philippine sovereignty, specifically the legisl
ative power which under Sec. 2, Article VI of the 1987 Philippine Constitution i
s vested in the Congress of the Philippines. It is an assault on the sovereign
powers of the Philippines because this means that Congress could not pass legisl
ation that will be good for our national interest and general welfare if such le
gislation will not conform with the WTO Agreement, which not only relates to the
trade in goods x x x but also to the flow of investments and money x x x as wel
l as to a whole slew of agreements on socio-cultural matters x x x.h[40]
More specifically, petitioners claim that said WTO proviso derogates from the po
wer to tax, which is lodged in the Congress.[41] And while the Constitution allo
ws Congress to authorize the President to fix tariff rates, import and export qu
otas, tonnage and wharfage dues, and other duties or imposts, such authority is
subject to gspecified limits and x x x such limitations and restrictionsh as Congr
ess may provide,[42] as in fact it did under Sec. 401 of the Tariff and Customs
Code.
Sovereignty Limited by International Law and Treaties
This Court notes and appreciates the ferocity and passion by which petitioners s
tressed their arguments on this issue. However, while sovereignty has tradition
ally been deemed absolute and all-encompassing on the domestic level, it is howe
ver subject to restrictions and limitations voluntarily agreed to by the Philipp
ines, expressly or impliedly, as a member of the family of nations. Unquestiona
bly, the Constitution did not envision a hermit-type isolation of the country fr
om the rest of the world. In its Declaration of Principles and State Policies,
the Constitution gadopts the generally accepted principles of international law a
s part of the law of the land, and adheres to the policy of peace, equality, jus
tice, freedom, cooperation and amity, with all nations."[43] By the doctrine of
incorporation, the country is bound by generally accepted principles of internat
ional law, which are considered to be automatically part of our own laws.[44] On
e of the oldest and most fundamental rules in international law is pacta sunt se
rvanda -- international agreements must be performed in good faith. gA treaty en
gagement is not a mere moral obligation but creates a legally binding obligation
on the parties x x x. A state which has contracted valid international obligat
ions is bound to make in its legislations such modifications as may be necessary
to ensure the fulfillment of the obligations undertaken.h[45]
By their inherent nature, treaties really limit or restrict the absoluteness of
sovereignty. By their voluntary act, nations may surrender some aspects of thei
r state power in exchange for greater benefits granted by or derived from a conv
ention or pact. After all, states, like individuals, live with coequals, and in
pursuit of mutually covenanted objectives and benefits, they also commonly agre
e to limit the exercise of their otherwise absolute rights. Thus, treaties have
been used to record agreements between States concerning such widely diverse ma
tters as, for example, the lease of naval bases, the sale or cession of territor
y, the termination of war, the regulation of conduct of hostilities, the formati
on of alliances, the regulation of commercial relations, the settling of claims,
the laying down of rules governing conduct in peace and the establishment of in
ternational organizations.[46] The sovereignty of a state therefore cannot in fa
ct and in reality be considered absolute. Certain restrictions enter into the p
icture: (1) limitations imposed by the very nature of membership in the family o
f nations and (2) limitations imposed by treaty stipulations. As aptly put by J
ohn F. Kennedy, gToday, no nation can build its destiny alone. The age of self-s
ufficient nationalism is over. The age of interdependence is here.h[47]
UN Charter and Other Treaties Limit Sovereignty
Thus, when the Philippines joined the United Nations as one of its 51 charter me
mbers, it consented to restrict its sovereign rights under the gconcept of sovere
ignty as auto-limitation.h47-A Under Article 2 of the UN Charter, g(a)ll members s
hall give the United Nations every assistance in any action it takes in accordan
ce with the present Charter, and shall refrain from giving assistance to any sta
te against which the United Nations is taking preventive or enforcement action.h
Such assistance includes payment of its corresponding share not merely in admin
istrative expenses but also in expenditures for the peace-keeping operations of
the organization. In its advisory opinion of July 20, 1961, the International C
ourt of Justice held that money used by the United Nations Emergency Force in th
e Middle East and in the Congo were gexpenses of the United Nationsh under Article
17, paragraph 2, of the UN Charter. Hence, all its members must bear their cor
responding share in such expenses. In this sense, the Philippine Congress is re
stricted in its power to appropriate. It is compelled to appropriate funds whet
her it agrees with such peace-keeping expenses or not. So too, under Article 10
5 of the said Charter, the UN and its representatives enjoy diplomatic privilege
s and immunities, thereby limiting again the exercise of sovereignty of members
within their own territory. Another example: although gsovereign equalityh and gdo
mestic jurisdictionh of all members are set forth as underlying principles in the
UN Charter, such provisos are however subject to enforcement measures decided b
y the Security Council for the maintenance of international peace and security u
nder Chapter VII of the Charter. A final example: under Article 103, g(i)n the e
vent of a conflict between the obligations of the Members of the United Nations
under the present Charter and their obligations under any other international ag
reement, their obligation under the present charter shall prevail,h thus unquesti
onably denying the Philippines -- as a member -- the sovereign power to make a c
hoice as to which of conflicting obligations, if any, to honor.
Apart from the UN Treaty, the Philippines has entered into many other internatio
nal pacts -- both bilateral and multilateral -- that involve limitations on Ph
ilippine sovereignty. These are enumerated by the Solicitor General in his Comp
liance dated October 24, 1996, as follows:
g(a) Bilateral convention with the United States regarding taxes on income, wher
e the Philippines agreed, among others, to exempt from tax, income received in t
he Philippines by, among others, the Federal Reserve Bank of the United States,
the Export/Import Bank of the United States, the Overseas Private Investment Cor
poration of the United States. Likewise, in said convention, wages, salaries an
d similar remunerations paid by the United States to its citizens for labor and
personal services performed by them as employees or officials of the United Stat
es are exempt from income tax by the Philippines.
(b) Bilateral agreement with Belgium, providing, among others, for the avoidanc
e of double taxation with respect to taxes on income.
(c) Bilateral convention with the Kingdom of Sweden for the avoidance of double
taxation.
(d) Bilateral convention with the French Republic for the avoidance of double t
axation.
(e) Bilateral air transport agreement with Korea where the Philippines agreed to
exempt from all customs duties, inspection fees and other duties or taxes aircr
afts of South Korea and the regular equipment, spare parts and supplies arriving
with said aircrafts.
(f) Bilateral air service agreement with Japan, where the Philippines agreed to
exempt from customs duties, excise taxes, inspection fees and other similar duti
es, taxes or charges fuel, lubricating oils, spare parts, regular equipment, sto
res on board Japanese aircrafts while on Philippine soil.
(g) Bilateral air service agreement with Belgium where the Philippines granted
Belgian air carriers the same privileges as those granted to Japanese and Korean
air carriers under separate air service agreements.
(h) Bilateral notes with Israel for the abolition of transit and visitor visas w
here the Philippines exempted Israeli nationals from the requirement of obtainin
g transit or visitor visas for a sojourn in the Philippines not exceeding 59 day
s.
(I) Bilateral agreement with France exempting French nationals from the require
ment of obtaining transit and visitor visa for a sojourn not exceeding 59 days.
(j) Multilateral Convention on Special Missions, where the Philippines agreed t
hat premises of Special Missions in the Philippines are inviolable and its agent
s can not enter said premises without consent of the Head of Mission concerned.
Special Missions are also exempted from customs duties, taxes and related charg
es.
(k) Multilateral Convention on the Law of Treaties. In this convention, the Phi
lippines agreed to be governed by the Vienna Convention on the Law of Treaties.
(l) Declaration of the President of the Philippines accepting compulsory jurisd
iction of the International Court of Justice. The International Court of Justic
e has jurisdiction in all legal disputes concerning the interpretation of a trea
ty, any question of international law, the existence of any fact which, if estab
lished, would constitute a breach of international obligation.h
In the foregoing treaties, the Philippines has effectively agreed to limit the e
xercise of its sovereign powers of taxation, eminent domain and police power. T
he underlying consideration in this partial surrender of sovereignty is the reci
procal commitment of the other contracting states in granting the same privilege
and immunities to the Philippines, its officials and its citizens. The same re
ciprocity characterizes the Philippine commitments under WTO-GATT.
gInternational treaties, whether relating to nuclear disarmament, human rights, t
he environment, the law of the sea, or trade, constrain domestic political sover
eignty through the assumption of external obligations. But unless anarchy in in
ternational relations is preferred as an alternative, in most cases we accept th
at the benefits of the reciprocal obligations involved outweigh the costs associ
ated with any loss of political sovereignty. (T)rade treaties that structure re
lations by reference to durable, well-defined substantive norms and objective di
spute resolution procedures reduce the risks of larger countries exploiting raw
economic power to bully smaller countries, by subjecting power relations to some
form of legal ordering. In addition, smaller countries typically stand to gain
disproportionately from trade liberalization. This is due to the simple fact th
at liberalization will provide access to a larger set of potential new trading r
elationship than in case of the larger country gaining enhanced success to the s
maller countryfs market.h[48]
The point is that, as shown by the foregoing treaties, a portion of sovereignty
may be waived without violating the Constitution, based on the rationale that th
e Philippines gadopts the generally accepted principles of international law as p
art of the law of the land and adheres to the policy of x x x cooperation and am
ity with all nations.h
Fourth Issue: The WTO Agreement and Judicial Power
Petitioners aver that paragraph 1, Article 34 of the General Provisions and Basi
c Principles of the Agreement on Trade-Related Aspects of Intellectual Property
Rights (TRIPS)[49] intrudes on the power of the Supreme Court to promulgate rule
s concerning pleading, practice and procedures.[50]
To understand the scope and meaning of Article 34, TRIPS,[51] it will be fruitfu
l to restate its full text as follows:
gArticle 34
Process Patents: Burden of Proof
1. For the purposes of civil proceedings in respect of the infringement of the r
ights of the owner referred to in paragraph 1(b) of Article 28, if the subject m
atter of a patent is a process for obtaining a product, the judicial authorities
shall have the authority to order the defendant to prove that the process to ob
tain an identical product is different from the patented process. Therefore, Me
mbers shall provide, in at least one of the following circumstances, that any id
entical product when produced without the consent of the patent owner shall, in
the absence of proof to the contrary, be deemed to have been obtained by the pat
ented process:
(a) if the product obtained by the patented process is new;
(b) if there is a substantial likelihood that the identical product was made by
the process and the owner of the patent has been unable through reasonable effo
rts to determine the process actually used.
2. Any Member shall be free to provide that the burden of proof indicated in par
agraph 1 shall be on the alleged infringer only if the condition referred to in
subparagraph (a) is fulfilled or only if the condition referred to in subparagra
ph (b) is fulfilled.
3. In the adduction of proof to the contrary, the legitimate interests of defend
ants in protecting their manufacturing and business secrets shall be taken into
account.h
From the above, a WTO Member is required to provide a rule of disputable (note t
he words gin the absence of proof to the contraryh) presumption that a product sho
wn to be identical to one produced with the use of a patented process shall be d
eemed to have been obtained by the (illegal) use of the said patented process, (
1) where such product obtained by the patented product is new, or (2) where ther
e is gsubstantial likelihoodh that the identical product was made with the use of
the said patented process but the owner of the patent could not determine the ex
act process used in obtaining such identical product. Hence, the gburden of proo
fh contemplated by Article 34 should actually be understood as the duty of the al
leged patent infringer to overthrow such presumption. Such burden, properly un
derstood, actually refers to the gburden of evidenceh (burden of going forward) p
laced on the producer of the identical (or fake) product to show that his produc
t was produced without the use of the patented process.
The foregoing notwithstanding, the patent owner still has the gburden of proofh si
nce, regardless of the presumption provided under paragraph 1 of Article 34, suc
h owner still has to introduce evidence of the existence of the alleged identica
l product, the fact that it is gidenticalh to the genuine one produced by the pate
nted process and the fact of gnewnessh of the genuine product or the fact of gsubst
antial likelihoodh that the identical product was made by the patented process.
The foregoing should really present no problem in changing the rules of evidence
as the present law on the subject, Republic Act No. 165, as amended, otherwise
known as the Patent Law, provides a similar presumption in cases of infringement
of patented design or utility model, thus:
gSEC. 60. Infringement. - Infringement of a design patent or of a patent for util
ity model shall consist in unauthorized copying of the patented design or utilit
y model for the purpose of trade or industry in the article or product and in th
e making, using or selling of the article or product copying the patented design
or utility model. Identity or substantial identity with the patented design or
utility model shall constitute evidence of copying.h (underscoring supplied)
Moreover, it should be noted that the requirement of Article 34 to provide a dis
putable presumption applies only if (1) the product obtained by the patented pro
cess is NEW or (2) there is a substantial likelihood that the identical product
was made by the process and the process owner has not been able through reasonab
le effort to determine the process used. Where either of these two provisos doe
s not obtain, members shall be free to determine the appropriate method of imple
menting the provisions of TRIPS within their own internal systems and processes.
By and large, the arguments adduced in connection with our disposition of the th
ird issue -- derogation of legislative power - will apply to this fourth issue a
lso. Suffice it to say that the reciprocity clause more than justifies such int
rusion, if any actually exists. Besides, Article 34 does not contain an unreaso
nable burden, consistent as it is with due process and the concept of adversaria
l dispute settlement inherent in our judicial system.
So too, since the Philippine is a signatory to most international conventions on
patents, trademarks and copyrights, the adjustment in legislation and rules of
procedure will not be substantial.[52]
Fifth Issue: Concurrence Only in the WTO Agreement and Not in Other Documents C
ontained in the Final Act
Petitioners allege that the Senate concurrence in the WTO Agreement and its anne
xes -- but not in the other documents referred to in the Final Act, namely the M
inisterial Declaration and Decisions and the Understanding on Commitments in Fin
ancial Services -- is defective and insufficient and thus constitutes abuse of d
iscretion. They submit that such concurrence in the WTO Agreement alone is flaw
ed because it is in effect a rejection of the Final Act, which in turn was the d
ocument signed by Secretary Navarro, in representation of the Republic upon auth
ority of the President. They contend that the second letter of the President to
the Senate[53] which enumerated what constitutes the Final Act should have been
the subject of concurrence of the Senate.
gA final act, sometimes called protocol de cloture, is an instrument which record
s the winding up of the proceedings of a diplomatic conference and usually inclu
des a reproduction of the texts of treaties, conventions, recommendations and ot
her acts agreed upon and signed by the plenipotentiaries attending the conferenc
e.h[54] It is not the treaty itself. It is rather a summary of the proceedings o
f a protracted conference which may have taken place over several years. The te
xt of the gFinal Act Embodying the Results of the Uruguay Round of Multilateral T
rade Negotiationsh is contained in just one page[55] in Vol. I of the 36-volume U
ruguay Round of Multilateral Trade Negotiations. By signing said Final Act, Secr
etary Navarro as representative of the Republic of the Philippines undertook:
"(a) to submit, as appropriate, the WTO Agreement for the consideration of their
respective competent authorities with a view to seeking approval of the Agreeme
nt in accordance with their procedures; and
(b) to adopt the Ministerial Declarations and Decisions."
The assailed Senate Resolution No. 97 expressed concurrence in exactly what the
Final Act required from its signatories, namely, concurrence of the Senate in th
e WTO Agreement.
The Ministerial Declarations and Decisions were deemed adopted without need for
ratification. They were approved by the ministers by virtue of Article XXV: 1 o
f GATT which provides that representatives of the members can meet gto give effec
t to those provisions of this Agreement which invoke joint action, and generally
with a view to facilitating the operation and furthering the objectives of this
Agreement.h[56]
The Understanding on Commitments in Financial Services also approved in Marrakes
h does not apply to the Philippines. It applies only to those 27 Members which g
have indicated in their respective schedules of commitments on standstill, elimi
nation of monopoly, expansion of operation of existing financial service supplie
rs, temporary entry of personnel, free transfer and processing of information, a
nd national treatment with respect to access to payment, clearing systems and re
financing available in the normal course of business.h[57]
On the other hand, the WTO Agreement itself expresses what multilateral agreemen
ts are deemed included as its integral parts,[58] as follows:
gArticle II
Scope of the WTO
1. The WTO shall provide the common institutional framework for the conduct of t
rade relations among its Members in matters to the agreements and associated le
gal instruments included in the Annexes to this Agreement.
2. The Agreements and associated legal instruments included in Annexes 1, 2, and
3 (hereinafter referred to as gMultilateral Agreementsh) are integral parts of th
is Agreement, binding on all Members.
3. The Agreements and associated legal instruments included in Annex 4 (hereinaf
ter referred to as gPlurilateral Trade Agreementsh) are also part of this Agreemen
t for those Members that have accepted them, and are binding on those Members.
The Plurilateral Trade Agreements do not create either obligation or rights for
Members that have not accepted them.
4. The General Agreement on Tariffs and Trade 1994 as specified in annex 1A (her
einafter referred to as gGATT 1994h) is legally distinct from the General Agreemen
t on Tariffs and Trade, dated 30 October 1947, annexed to the Final Act adopted
at the conclusion of the Second Session of the Preparatory Committee of the Unit
ed Nations Conference on Trade and Employment, as subsequently rectified, amende
d or modified (hereinafter referred to as gGATT 1947h).
It should be added that the Senate was well-aware of what it was concurring in a
s shown by the membersf deliberation on August 25, 1994. After reading the lette
r of President Ramos dated August 11, 1994,[59] the senators of the Republic min
utely dissected what the Senate was concurring in, as follows: [60]
gTHE CHAIRMAN: Yes. Now, the question of the validity of the submission came up
in the first day hearing of this Committee yesterday. Was the observation made
by Senator Tanada that what was submitted to the Senate was not the agreement o
n establishing the World Trade Organization by the final act of the Uruguay Roun
d which is not the same as the agreement establishing the World Trade Organizati
on? And on that basis, Senator Tolentino raised a point of order which, however
, he agreed to withdraw upon understanding that his suggestion for an alternativ
e solution at that time was acceptable. That suggestion was to treat the procee
dings of the Committee as being in the nature of briefings for Senators until th
e question of the submission could be clarified.
And so, Secretary Romulo, in effect, is the President submitting a new... is he
making a new submission which improves on the clarity of the first submission?
MR. ROMULO: Mr. Chairman, to make sure that it is clear cut and there should be
no misunderstanding, it was his intention to clarify all matters by giving this
letter.
THE CHAIRMAN: Thank you.
Can this Committee hear from Senator Tanada and later on Senator Tolentino since
they were the ones that raised this question yesterday?
Senator Tanada, please.
SEN. TANADA: Thank you, Mr. Chairman.
Based on what Secretary Romulo has read, it would now clearly appear that what i
s being submitted to the Senate for ratification is not the Final Act of the Uru
guay Round, but rather the Agreement on the World Trade Organization as well as
the Ministerial Declarations and Decisions, and the Understanding and Commitment
s in Financial Services.
I am now satisfied with the wording of the new submission of President Ramos.
SEN. TANADA. . . . of President Ramos, Mr. Chairman.
THE CHAIRMAN. Thank you, Senator Tanada. Can we hear from Senator Tolentino?
And after him Senator Neptali Gonzales and Senator Lina.
SEN TOLENTINO, Mr. Chairman, I have not seen the new submission actually transmi
tted to us but I saw the draft of his earlier, and I think it now complies with
the provisions of the Constitution, and with the Final Act itself. The Constitu
tion does not require us to ratify the Final Act. It requires us to ratify the
Agreement which is now being submitted. The Final Act itself specifies what is
going to be submitted to with the governments of the participants.
In paragraph 2 of the Final Act, we read and I quote:
eBy signing the present Final Act, the representatives agree: (a) to submit as
appropriate the WTO Agreement for the consideration of the respective competent
authorities with a view to seeking approval of the Agreement in accordance with
their procedures.f
In other words, it is not the Final Act that was agreed to be submitted to the g
overnments for ratification or acceptance as whatever their constitutional proce
dures may provide but it is the World Trade Organization Agreement. And if that
is the one that is being submitted now, I think it satisfies both the Constitut
ion and the Final Act itself.
Thank you, Mr. Chairman.
THE CHAIRMAN. Thank you, Senator Tolentino, May I call on Senator Gonzales.
SEN. GONZALES. Mr. Chairman, my views on this matter are already a matter of re
cord. And they had been adequately reflected in the journal of yesterdayfs sessi
on and I donft see any need for repeating the same.
Now, I would consider the new submission as an act ex abudante cautela.
THE CHAIRMAN. Thank you, Senator Gonzales. Senator Lina, do you want to make a
ny comment on this?
SEN. LINA. Mr. President, I agree with the observation just made by Senator Gon
zales out of the abundance of question. Then the new submission is, I believe,
stating the obvious and therefore I have no further comment to make.h
Epilogue
In praying for the nullification of the Philippine ratification of the WTO Agree
ment, petitioners are invoking this Courtfs constitutionally imposed duty gto dete
rmine whether or not there has been grave abuse of discretion amounting to lack
or excess of jurisdictionh on the part of the Senate in giving its concurrence th
erein via Senate Resolution No. 97. Procedurally, a writ of certiorari grounded
on grave abuse of discretion may be issued by the Court under Rule 65 of the Ru
les of Court when it is amply shown that petitioners have no other plain, speedy
and adequate remedy in the ordinary course of law.
By grave abuse of discretion is meant such capricious and whimsical exercise of
judgment as is equivalent to lack of jurisdiction.[61] Mere abuse of discretion
is not enough. It must be grave abuse of discretion as when the power is exerci
sed in an arbitrary or despotic manner by reason of passion or personal hostilit
y, and must be so patent and so gross as to amount to an evasion of a positive d
uty or to a virtual refusal to perform the duty enjoined or to act at all in con
templation of law.[62] Failure on the part of the petitioner to show grave abuse
of discretion will result in the dismissal of the petition.[63]
In rendering this Decision, this Court never forgets that the Senate, whose act
is under review, is one of two sovereign houses of Congress and is thus entitled
to great respect in its actions. It is itself a constitutional body independen
t and coordinate, and thus its actions are presumed regular and done in good fai
th. Unless convincing proof and persuasive arguments are presented to overthrow
such presumptions, this Court will resolve every doubt in its favor. Using the
foregoing well-accepted definition of grave abuse of discretion and the presump
tion of regularity in the Senatefs processes, this Court cannot find any cogent r
eason to impute grave abuse of discretion to the Senatefs exercise of its power o
f concurrence in the WTO Agreement granted it by Sec. 21 of Article VII of the C
onstitution.[64]
It is true, as alleged by petitioners, that broad constitutional principles requ
ire the State to develop an independent national economy effectively controlled
by Filipinos; and to protect and/or prefer Filipino labor, products, domestic ma
terials and locally produced goods. But it is equally true that such principles
-- while serving as judicial and legislative guides -- are not in themselves so
urces of causes of action. Moreover, there are other equally fundamental consti
tutional principles relied upon by the Senate which mandate the pursuit of a gtra
de policy that serves the general welfare and utilizes all forms and arrangement
s of exchange on the basis of equality and reciprocityh and the promotion of indu
stries gwhich are competitive in both domestic and foreign markets,h thereby justi
fying its acceptance of said treaty. So too, the alleged impairment of sovereig
nty in the exercise of legislative and judicial powers is balanced by the adopti
on 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 g
ave its consent to the WTO Agreement thereby making it ga part of the law of the
landh is a legitimate exercise of its sovereign duty and power. We find no gpaten
t and grossh arbitrariness or despotism gby reason of passion or personal hostilit
yh in such exercise. It is not impossible to surmise that this Court, or at leas
t some of its members, may even agree with petitioners that it is more advantage
ous 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 t
o nullify its decision. To do so would constitute grave abuse in the exercise o
f our own judicial power and duty. Ineludably, what the Senate did was a valid
exercise of its authority. As to whether such exercise was wise, beneficial or
viable is outside the realm of judicial inquiry and review. That is a matter be
tween the elected policy makers and the people. As to whether the nation should
join the worldwide march toward trade liberalization and economic globalization
is a matter that our people should determine in electing their policy makers.
After all, the WTO Agreement allows withdrawal of membership, should this be the
political desire of a member.
The eminent futurist John Naisbitt, author of the best seller Megatrends, predic
ts an Asian Renaissance[65] where gthe East will become the dominant region of th
e world economically, politically and culturally in the next century.h He refers
to the gfree marketh espoused by WTO as the gcatalysth in this coming Asian ascenda
ncy. There are at present about 31 countries including China, Russia and Saudi
Arabia negotiating for membership in the WTO. Notwithstanding objections agains
t possible limitations on national sovereignty, the WTO remains as the only viab
le structure for multilateral trading and the veritable forum for the developmen
t of international trade law. The alternative to WTO is isolation, stagnation,
if not economic self-destruction. Duly enriched with original membership, kee
nly aware of the advantages and disadvantages of globalization with its on-line
experience, and endowed with a vision of the future, the Philippines now straddl
es the crossroads of an international strategy for economic prosperity and stabi
lity in the new millennium. Let the people, through their duly authorized elect
ed officers, make their free choice.
WHEREFORE, the petition is DISMISSED for lack of merit.
SO ORDERED.
Narvasa, C.J., Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Kapunan, M
endoza, Francisco, Hermosisima, Jr., and Torres, Jr., JJ., concur.
Padilla, and Vitug, JJ., in the result.
[1] In Annex gAh of her Memorandum, dated August 8, 1996, received by this Court o
n August 12, 1996, Philippine Ambassador to the United Nations, World Trade Orga
nization and other international organizations Lilia R. Bautista (hereafter refe
rred to as gBautista Paperh) submitted a g46-year Chronologyh of GATT as follows:
g1947 The birth of GATT. On 30 October 1947, the General Agreement on Tariff
s and Trade (GATT) was signed by 23 nations at the Palais des Nations in Geneva.
The Agreement contained tariff concessions agreed to in the first multilateral
trade negotiations and a set of rules designed to prevent these concessions fro
m being frustrated by restrictive trade measures.
The 23 founding contracting parties were members of the Preparatory Committee es
tablished by the United Nations Economic and Social Council in 1946 to draft the
charter of the International Trade Organization (ITO). The ITO was envisaged a
s the final leg of a triad of post-War economic agencies (the other two were the
International Monetary Fund and the International Bank for Reconstruction - lat
er the World Bank).
In parallel with this task, the Committee members decided to negotiate tariff co
ncessions among themselves. From April to October 1947, the participants comple
ted some 123 negotiations and established 20 schedules containing the tariff red
uctions and bindings which became an integral part of GATT. These schedules res
ulting from the first Round covered some 45,000 tariff concessions and about $10
billion in trade.
GATT was conceived as an interim measure that put into effect the co
mmercial-policy provisions of the ITO. In November, delegations from 56 countri
es met in Havana, Cuba, to consider the ITO draft as a whole. After long and di
fficult negotiations, some 53 countries signed the Final Act authenticating the
text of the Havana Charter in March 1948. There was no commitment, however, fro
m governments to ratification and, in the end, the ITO was stillborn, leaving GA
TT as the only international instrument governing the conduct of world trade.
1948 Entry into force. On 1 January 1948, GATT entered into force. The 23 f
ounding members were: Australia, Belgium, Brazil, Burma, Canada, Ceylon, Chile,
China, Cuba, Czechoslovakia, France, India, Lebanon, Luxemburg, Netherlands, New
Zealand, Norway, Pakistan, Southern Rhodesia, Syria, South Africa, United Kingd
om and United States. The first Session of the contracting parties was held fro
m February to March in Havana, Cuba. The secretariat of the Interim Commission
for the ITO, which served as the ad hoc secretariat of GATT, move from lake Plac
id, New York, to Geneva. The Contracting Parties held their second session in G
eneva from August to September.
1949 Second Round at Annecy. During the second Round of trade negotiations,
held from April to August at Annecy, France, the contracting parties exchange s
ome 5,000 tariff concession. At their third Session, they also dealt with the a
ccession of ten more countries.
1950 Third Round At Torquay. From September 1950 to April 1951, the contrac
ting parties exchange some 8,700 tariff concessions in the English town, yieldin
g tariff reduction of about 25 per cent in relation to the 1948 level. Four mor
e countries acceded to GATT. During the fifth Session of the Contracting Partie
s, the United States indicated that the ITO Charter would not be re-submitted to
the US congress; this, in effect, meant that ITO would not come into operation.
1956 Fourth Round at Geneva. The fourth Round was completed in May and prod
uce some $2.5 billion worth of tariff reductions. At the beginning of the year,
the GATT commercial policy course for officials of developing countries was ina
ugurated.
1958 The Haberler Report. GATT published Trends in International Trade in Oc
tober. Known as the "Haberler Report" in honour of Professor Gottfried Haberler
, the chairman of the panel of imminent economist, it provided initial guideline
s for the work of GATT. The Contracting Parties at their 13th Sessions, attende
d by Ministers, subsequently established 3 committees in GATT: Committee I to c
onvene a further tariff negotiating conference; Committee II To review the agric
ultural policies of member governments and Committee III to tackle the problems
facing developing countries in their trade. The establishment of the European E
conomic Community during the previous year also demanded large scale tariff nego
tiation under Article XXIV 6 of the General Agreement.
1960 The Dillon Round. The fifth Round opened in September and was divided i
nto two phases: the first was concerned with EEC members states for the creation
of a single schedule of concessions for the Community based on its Common Exter
nal Tariff; and the second was a further general round of tariff negotiations.
Named in honor of US Under-Secretary of State Douglas Dillon who proposed the ne
gotiations, the Round was concluded in July 1962 and resulted in about 4,400 tar
iff concessions covering $4.9 billion of trade.
1961 The Short-Term Arrangement covering cotton textiles was agreed as an ex
ception to the GATT rules. The arrangement permitted the negotiation of quota r
estrictions affecting the exports of cotton-producing countries. In 1962 the "S
hort Term " Arrangement become the "Long term" Arrangement, lasting until 1974 w
hen the Multifibre Arrangement entered into force.
1964 The Kennedy Round. Meeting at Ministerial Level, a Trade Negotiations
Committee formally opened the Kennedy Round in May. In June 1967, the Round's F
inal Act was signed by some 50 participating countries which together accounted
for 75 per cent of world trade. For the first time, negotiation departed from p
roduct-by-product approach used in the previous Rounds to an across-the-board or
linear method of cutting tariffs for industrial goods. The working hypothesis
of a 50 per cent target cut in tariff levels was achieved in many areas. Conces
sions covered an estimated total value of trade of about $40 billion. Separate
agreements were reached on grains, chemical products and a Code on Anti-Dumping.

1965 A New Chapter. The early 1960s marked the accession to the General Agr
eement of many newly-independent developing countries. In February, the Contrac
ting Parties, meeting in a special session, adopted the text of Part IV on Trade
and Development. The additional chapter to the GATT required developed countri
es to accord high priority to the reduction of trade barriers to products of dev
eloping countries. A committee on Trade and Development was established to over
see the functioning of the new GATT provisions. In the preceding year, GATT ha
d established the International Trade Center (ITC) to help developing countries
in trade promotion and identification of potential markets. Since 1968, the ITC
had been jointly operated by GATT and the UN Conference on Trade and Developmen
t (UNCTAD).
1973 The Tokyo Round. The seventh Round was launched by Ministers in Septem
ber at the Japanese capital. Some 99 countries participated in negotiating a co
mprehensive body of agreements covering both tariff and non-tariff matters. At
the end of the Round in November 1979, participants exchange tariff reduction an
d bindings which covered more than $300 billion of trade. As a result of these
cuts, the weighted average tariff on manufactured goods in the world's nine majo
r Industrial Markets declined from 7.0 to 4.7 per cent. Agreements were reached
in the following areas; subsidies and countervailing measures, technical barrie
rs to trade, import licensing procedures, government procurement, customs valuat
ion, a revised anti-dumping code, trade in bovine meat, trade in daily products
and trade in civil aircraft. The first concrete result of the Round was the re
duction of import duties and other trade barriers by industrial countries on tr
opical products exported by developing countries.
1974 On 1 January 1974, the Arrangement Regarding International Trade in te
xtiles, otherwise known as the Multifibre Arrangement (MFA), entered into force.
Its superseded the arrangement that had been governing trade in cotton textile
s since 1961. The MFA seeks to promote the expansion and progressive liberaliza
tion of trade in textile product while at the same time avoiding disruptive effe
cts in individual markets in lines of production. The MFA was extended in 1978,
1982, 1986, 1991 and 1992. MFA members account for most of the world exports o
f textiles and clothing which in 1986 amounted to US$128 billion.
1982 Ministerial Meeting. Meeting for the first time in nearly ten years, t
he GATT Ministers in November at Geneva reaffirmed the validity of GATT rules fo
r the conduct of international trade and committed themselves to combating prote
ctionist pressures. They also established a wide-ranging work programme for the
GATT which was to laid down the ground work for a new Round. 1986 The Uruguay
Round. The GATT Trade Ministers meeting at Punta del Este, Uruguay, launched the
eighth Round of Trade Negotiations on 20 September. The Punta del Este, declar
ations, while representing a single political undertaking, was divided into two
section. The First covered negotiations on Trade in goods and the second initia
ted negotiation on trade in services. In the area of trade in goods, the Minist
ers committed themselves to a "standstill" on new trade measures inconsistent w
ith their GATT obligations and to a "rollback" programme aimed at phasing out ex
isting inconsistent measures. Envisaged to last four years, negotiations starte
d in early February 1987 in the following areas: tariffs, non-tariff measures,
tropical products, natural resource-based products, textiles and clothing, agri
culture, subsidies, safeguards, trade-related aspects of intellectual property r
ights including trade in counterfeit goods, in trade- related investment measure
s. The work of other groups included a review of GATT articles, the GATT dispute
-settlement procedure, the Tokyo Round agreements, as well as functioning of the
GATT system as a whole.
1994 "GATT 1994" is the updated version of GATT 1947 and takes into account
the substantive and institutional changes negotiated in the Uruguay Round. GATT
1994 is an integral part of the World Trade Organization established on 1 Janua
ry 1995. It is agreed that there be a one year transition period during which c
ertain GATT 1947 bodies and commitments would co-exist with those of the World T
rade Organization."
[2] The Final Act was signed by representatives of 125 entities, namely Algeria,
Angola, Antigua and Barbuda, Argentine Republic, Australia, Republic of Austria
, State of Bahrain, Peoplefs Republic of Bangladesh, Barbados, The Kingdom of Bel
gium, Belize, Republic of Benin, Bolivia, Botswana, Brazil, Brunei Darussalam, B
urkina Faso, Burundi, Cameroon, Canada, Central African Republic, Chad, Chile, P
eoplefs Republic of China, Colombia, Congo, Costa Rica, Republic of Cote dfIvoire,
Cuba, Cyprus, Czech Republic, Kingdom of Denmark, Commonwealth of Dominica, Dom
inican Republic, Arab Republic of Egypt, El Salvador, European Communities, Repu
blic of Fiji, Finland, French Republic, Gabonese Republic, Gambia, Federal Repub
lic of Germany, Ghana, Hellenic Republic, Grenada, Guatemala, Republic of Guinea
-Bissau, Republic of Guyana, Haiti, Honduras, Hong Kong, Hungary, Iceland, India
, Indonesia, Ireland, State of Israel, Italian Republic, Jamaica, Japan, Kenya,
Korea, State of Kuwait, Kingdom of Lesotho, Principality of Liechtenstein, Grand
Duchy of Luxembourg, Macau, Republic of Madagascar, Republic of Malawi, Malaysi
a, Republic of Maldives, Republic of Mali, Republic of Malta, Islamic Republic o
f Mauritania, Republic of Mauritius, United Mexican States, Kingdom of Morocco,
Republic of Mozambique, Union of Myanmar, Republic of Namibia, Kingdom of the Ne
therlands, New Zealand, Nicaragua, Republic of Niger, Federal Republic of Nigeri
a, Kingdom of Norway, Islamic Republic of Pakistan, Paraguay, Peru, Philippines,
Poland, Portuguese Republic, State of Qatar, Romania, Rwandese Republic, Saint
Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Senegal, Sierra
Leone, Singapore, Slovak Republic, South Africa, Kingdom of Spain, Democratic So
cialist Republic of Sri Lanka, Republic of Surinam, Kingdom of Swaziland, Kingdo
m of Sweden, Swiss Confederation, United Republic of Tanzania, Kingdom of Thaila
nd, Togolese Republic, Republic of Trinidad and Tobago, Tunisia, Turkey, Uganda,
United Arab Emirates, United Kingdom of Great Britain and Northern Ireland, Uni
ted States of America, Eastern Republic of Uruguay, Venezuela, Republic of Zaire
, Republic of Zambia, Republic of Zimbabwe; see pp. 6-25, Vol. 1, Uruguay Round
of Multilateral Trade Negotiations.
[3] 11 August 1994
The Honorable Members
Senate
Through Senate President Edgardo Angara
Manila
Ladies and Gentlemen:
I have the honor to forward herewith an authenticated copy of the Uruguay Round
Final Act signed by Department of Trade and Industry Secretary Rizalino S. Navar
ro for the Philippines on 15 April 1994 in Marrakesh, Morocco.
The Uruguay Round Final Act aims to liberalize and expand world trade and streng
then the interrelationship between trade and economic policies affecting growth
and development.
The Final Act will improve Philippine access to foreign markets, especially its
major trading partners through the reduction of tariffs on its exports particula
rly agricultural and industrial products. These concessions may be availed of b
y the Philippines, only if it is a member of the World Trade Organization. By G
ATT estimates, the Philippines can acquire additional export revenues from $2.2
to $2.7 Billion annually under Uruguay Round. This will be on top of the normal
increase in exports that the Philippines may experience.
The Final Act will also open up new opportunities for the services sector in suc
h areas as the movement of personnel, (e.g. professional services and constructi
on services), cross-border supply (e.g. computer-related services), consumption
abroad (e.g. tourism, convention services, etc.) and commercial presence.
The clarified and improved rules and disciplines on anti-dumping and countervail
ing measures will also benefit Philippine exporters by reducing the costs and un
certainty associated with exporting while at the same time providing a means for
domestic industries to safeguard themselves against unfair imports.
Likewise, the provision of adequate protection for intellectual property rights
is expected to attract more investments into the country and to make it less vul
nerable to unilateral actions by its trading partners (e.g. Sec. 301 of the Unit
ed Statesf Omnibus Trade Law).
In view of the foregoing, the Uruguay Round Final Act is hereby submitted to the
Senate for its concurrence pursuant to Section 21, Article VII of the Constitut
ion.
A draft of a proposed Resolution giving its concurrence to the aforesaid Agreeme
nt is enclosed.
Very truly yours,
(SGD.) FIDEL V. RAMOS
[4] 11 August 1994
The Honorable Members
Senate
Through Senate President Edgardo Angara
Manila
Ladies and Gentlemen:
I have the honor to forward herewith an authenticated copy of the Uruguay Round
Final Act signed by Department of Trade and Industry Secretary Rizalino S. Navar
ro for the Philippines on 13 April 1994 in Marrakech (sic), Morocco.
Members of the trade negotiations committee, which included the Philippines, agr
eed that the Agreement Establishing the World Trade Organization, the Ministeria
l Declarations and Decisions, and the Understanding on Commitments in Financial
Services embody the results of their negotiations and form an integral part of t
he Uruguay Round Final Act.
By signing the Uruguay Round Final Act, the Philippines, through Secretary Navar
ro, agreed:
(a) To submit the Agreement Establishing the World Trade Organization to the Se
nate for its concurrence pursuant to Section 21, Article VII of the Constitution
; and
(b) To adopt the Ministerial Declarations and Decisions.
The Uruguay Round Final Act aims to liberalize and expand world trade and streng
then the interrelationship between trade and economic policies affecting growth
and development.
The Final Act will improve Philippine access to foreign markets, especially its
major trading partners through the reduction of tariffs on its exports particula
rly agricultural and industrial products. These concessions may be availed of b
y the Philippines, only if it is a member of the World Trade Organization. By
GATT estimates, the Philippines can acquire additional export revenues from $2.2
to $2.7 Billion annually under Uruguay Round. This will be on top of the norma
l increase in the exports that the Philippines may experience.
The Final Act will also open up new opportunities for the services sector in suc
h areas as the movement of personnel, (e.g., professional services and construct
ion services), cross-border supply (e.g., computer-related services), consumptio
n abroad (e.g., tourism, convention services, etc.) and commercial presence.
The clarified and improved rules and disciplines on anti-dumping and countervail
ing measures will also benefit Philippine exporters by reducing the costs and un
certainty associated with exporting while at the same time providing a means for
domestic industries to safeguard themselves against unfair imports.
Likewise, the provision of adequate protection for intellectual property rights
is expected to attract more investments into the country and to make it a less v
ulnerable to unilateral actions by its trading partners (e.g., Sec. 301 of the U
nited States Omnibus Trade Law).
In view of the foregoing, the Uruguay Round Final Act, the Agreement Establishin
g the World Trade Organization, the Ministerial Declarations and Decisions, and
the Understanding on Commitments in Financial Services, as embodied in the Urugu
ay Round Final Act and forming and integral part thereof are hereby submitted to
the Senate for its concurrence pursuant to Section 21, Article VII of the Const
itution.
A draft of a proposed Resolution giving its concurrence to the aforesaid Agreeme
nt is enclosed.
Very truly yours,
(SGD.) FIDEL V. RAMOS
[5] December 9, 1994
HON. EDGARDO J. ANGARA
Senate President
Senate, Manila
Dear Senate President Angara:
Pursuant to the provisions of Sec. 26 (2) Article VI of the Constitution, I her
eby certify to the necessity of the immediate adoption of P.S. 1083, entitled:
gCONCURRING IN THE RATIFICATION OF THE AGREEMENT ESTABLISHING THE WORLD TRADE ORG
ANIZATIONh
to meet a public emergency consisting of the need for immediate membership in th
e WTO in order to assure the benefits to the Philippine economy arising from suc
h membership.
Very truly yours,
(SGD.) FIDEL V. RAMOS
[6] Attached as Annex A, Petition; rollo, p. 52. P.S. 1083 is the forerunner of
assailed Senate Resolution No. 97. It was prepared by the Committee of the Whol
e on the General Agreement on Tariffs and Trade chaired by Sen. Blas F. Ople and
co-chaired by Sen. Gloria Macapagal-Arroyo; see Annex C, Compliance of petition
ers dated January 28, 1997.
[7] The Philippines is thus considered an original or founding member of WTO, wh
ich as of July 26, 1996 had 123 members as follows: Antigua and Barbuda, Argent
ina, Australia, Austria, Bahrain, Bangladesh, Barbados, Belgium, Belize, Benin,
Bolivia, Botswana, Brazil, Brunei Darussalam, Burkina Faso, Burundi, Cameroon, C
anada, Central African Republic, Chili, Colombia, Costa Rica, Cote dfIvoire, Cuba
, Cyprus, Czech Republic, Denmark, Djibouti, Dominica, Dominican Republic, Ecuad
or, Egypt, El Salvador, European Community, Fiji, Finland, France, Gabon, German
y, Ghana, Greece, Grenada, Guatemala, Guinea, Guinea Bissau, Guyana, Haiti, Hond
uras, Hongkong, Hungary, Iceland, India, Indonesia, Ireland, Israel, Italy, Jama
ica, Japan, Kenya, Korea, Kuwait, Lesotho, Liechtenstein, Luxembourg, Macau, Mad
agascar, Malawi, Malaysia, Maldives, Mali, Malta, Mauritania, Mauritius, Mexico,
Morocco, Mozambique, Myanmar, Namibia, Netherlands -- for the Kingdom in Europe
and for the Netherlands Antilles, New Zealand, Nicaragua, Nigeria, Norway, Paki
stan, Papua New Guinea, Paraguay, Peru, Philippines, Poland, Portugal, Qatar, Ro
mania, Rwanda, Saint Kitts and Nevis, Saint Lucia, Saint Vincent & the Grenadine
s, Senegal, Sierra Leone, Singapore, Slovak Republic, Slovenia, Solomon Islands,
South Africa, Spain, Sri Lanka, Surinam, Swaziland, Sweden, Switzerland, Tanzan
ia, Thailand, Togo, Trinidad and Tobago, Tunisia, Turkey, Uganda, United Arab Em
irates, United Kingdom, United States, Uruguay, Venezuela, Zambia, and Zimbabwe.
See Annex A, Bautista Paper, infra.
[8] Page 6; rollo, p. 261.
[9] In compliance, Ambassador Bautista submitted to the Court on August 12, 1996
, a Memorandum (the gBautista Paperh) consisting of 56 pages excluding annexes. T
his is the same document mentioned in footnote no. 1.
[10] Memorandum for Respondents, p. 13; rollo, p. 268.
[11] Cf. Kilosbayan, Incorporated vs. Morato, 246 SCRA 540, July 17, 1995 for a
discussion on locus standi. See also the Concurring Opinion of Mr. Justice Vic
ente V. Mendoza in Tatad vs. Garcia, Jr., 243 SCRA 473, April 6, 1995, as well a
s Kilusang Mayo Uno Labor Center vs. Garcia, Jr., 239 SCRA 386, 414, December 23
, 1994.
[12] Aquino, Jr. vs. Ponce Enrile, 59 SCRA 183, 196, September 17, 1974, cited i
n Bondoc vs. Pineda, 201 SCRA 792, 795, September 26, 1991.
[13] Guingona, Jr. vs. Gonzales, 219 SCRA 326, 337, March 1, 1993.
[14] See Tanada and Macapagal vs. Cuenco, et al., 103 Phil. 1051 for a discussio
n on the scope of gpolitical question.h
[15] Section 1, Article VIII, (par. 2).
[16] In a privilege speech on May 17, 1993, entitled gSupreme Court -- Potential
Tyrant?h Senator Arturo Tolentino concedes that this new provision gives the Supr
eme Court a duty gto intrude into the jurisdiction of the Congress or the Presid
ent.h
[17] I Record of the Constitutional Commission 436.
[18] Cf. Daza vs. Singson, 180 SCRA 496, December 21, 1989.
[19] Memorandum for Petitioners, pp. 14-16; rollo, pp. 204-206.
[20] Par. 4, Article XVI, WTO Agreement, Uruguay Round of Multilateral Trade Neg
otiations, Vol. 1, p. 146.
[21] Also entitled gDeclaration of Principles.h The nomenclature in the 1973 Char
ter is identical with that in the 1987fs.
[22] Philippine Political Law, 1962 Ed., p. 116.
[23] Bernas, The Constitution of the Philippines: A Commentary, Vol. II, 1988 Ed
., p. 2. In the very recent case of Manila Prince Hotel vs. GSIS, G.R. No. 1221
56, February 3, 1997, p. 8, it was held that gA provision which lays down a gener
al principle, such as those found in Art. II of the 1987 Constitution, is usuall
y not self-executing.h
[24] 246 SCRA 540, 564, July 17, 1995. See also Tolentino vs. Secretary of Fina
nce, G.R. No. 115455 and consolidated cases, August 25, 1995.
[25] 197 SCRA 52, 68, May 14, 1991.
[26] 224 SCRA 792, 817, July 30, 1993.
[27] Sec. 10, Article XII.
[28] Sec. 12, Article XII.
[29] Sec. 19, Art. II.
[30] Sec. 13, Art. XII.
[31] G.R. No. 122156, February 3, 1997, pp. 13-14.
[32] Sec. 1, Art. XII.
[33] Bautista Paper, p. 19.
[34] Preamble, WTO Agreement p. 137, Vol. 1, Uruguay Round of Multilateral Trade
Negotiations. Underscoring supplied.
[35] Sec. - 19, Article II, Constitution.
[36] III Records of the Constitutional Commission 252.
[37] Sec. 13, Article XII, Constitution.
[38] Justice Isagani A. Cruz, Philippine Political Law, 1995 Ed., p. 13, quoting
his own article entitled, gA Quintessential Constitutionh earlier published in th
e San Beda Law Journal, April 1972; underscoring supplied.
[39] Par. 4, Article XVI (Miscellaneous Provisions), WTO Agreement, p.146, Vol.
1, Uruguay Round of Multilateral Trade Negotiations.
[40] Memorandum for the Petitioners, p. 29; rollo, p. 219.
[41] Sec. 24, Article VI, Constitution.
[42] Subsection (2), Sec. 28, Article, VI Constitution.
[43] Sec. 2, Article II, Constitution.
[44] Cruz, Philippine Political Law, 1995 Ed., p. 55.
[45] Salonga and Yap, op cit 305.
[46] Salonga, op. cit., p. 287.
[47] Quoted in Paras and Paras, Jr., International Law and World Politics, 1994
Ed., p. 178.
47-A Reagan vs. Commission of Internal Revenue, 30 SCRA 968, 973, December 27, 1
969.
[48] Trebilcock and Howse. The Regulation of International Trade, p. 14, London
, 1995, cited on p. 55-56, Bautista Paper.
[49] Uruguay Round of Multilateral Trade Negotiations, Vol. 31, p. 25445.
[50] Item 5, Sec. 5, Article VIII, Constitution.
[51] Uruguay Round of Multilateral Trade Negotiations, Vol. 31, p. 25445.
[52] Bautista Paper, p. 13.
[53] See footnote 3 of the text of this letter.
[54] Salonga and Yap, op cit., pp. 289-290.
[55] The full text, without the signatures, of the Final Act is as follows:
gFinal Act Embodying the Results of the
Uruguay Round of Multilateral Trade Negotiations
1. Having met in order to conclude the Uruguay Round of Multilateral Trade Negot
iations, representatives of the governments and of the European Communities, mem
bers of the Trade Negotiations Committee, agree that the Agreement Establishing
the World Trade Organization (referred to in the Final Act as the gWTO Agreementh)
, the Ministerial Declarations and Decisions, and the Understanding on Commitmen
ts in Financial Services, as annexed hereto, embody the results of their negotia
tions and form an integral part of this Final Act.
2. By signing to the present Final Act, the representatives agree.
g(a) to submit, as appropriate, the WTO Agreement for the consideration of their
respective competent authorities with a view to seeking approval of the Agreemen
t in accordance with their procedures; and
(b) to adopt the Ministerial Declarations and Decisions.h
3. The representatives agree on the desirability of acceptance of the WTO Agreem
ent by all participants in the Uruguay Round of Multilateral Trade Negotiations
(hereinafter referred to as gparticipantsh) with a view to its entry into force by
1 January 1995, or as early as possible thereafter. Not later than late 1994,
Ministers will meet, in accordance with the final paragraph of the Punta del Est
e Ministerial Declarations, to decide on the international implementation of the
results, including the timing of their entry into force.
4. The representatives agree that the WTO Agreement shall be opened for accepta
nce as a whole, by signature or otherwise, by all participants pursuant to Artic
le XIV thereof. The acceptance and entry into force of a Plurilateral Trade Agr
eement included in Annex 4 of the WTO Agreement shall be governed by the provisi
ons of that Plurilateral Trade Agreement.
5. Before accepting the WTO Agreement, participants which are not contracting p
arties to the General Agreement on Tariffs and Trade must first have concluded n
egotiations for their accession to the General Agreement and become contracting
parties thereto. For participants which are not contracting parties to the gene
ral Agreement as of the date of the Final Act, the Schedules are not definitive
and shall be subsequently completed for the purpose of their accession to the Ge
neral Agreement and acceptance of the WTO Agreement.
6. This Final Act and the Texts annexed hereto shall be deposited with the Dire
ctor-General to the CONTRACTING PARTIES to the General Agreement on Tariffs and
Trade who shall promptly furnish to each participant a certified copy thereof.
DONE at Marrakesh this fifteenth day of April One thousand nine hundred and nine
ty-four, in a single copy, in the English, French and Spanish languages, each te
xt being authentic."
[56] Bautista Paper, p. 16.
[57] Bautista Paper, p. 16.
[58] Uruguay Round of Multilateral Trade Negotiations, Vol. I, pp. 137-138.
[59] See footnote 3 for complete text.
[60] Taken from pp. 63-85, gRespondenth Memorandum.
[61] Zarate vs. Olegario, G.R. No. 90655, October 7, 1996.
[62] San Sebastian College vs. Court of Appeals, 197 SCRA 138, 144, May 15, 1991
; Commissioner of Internal Revenue vs. Court of Tax Appeals, 195 SCRA 444, 458 M
arch 20, 1991; Simon vs. Civil Service Commission, 215 SCRA 410, November 5, 199
2; Bustamante vs. Commissioner on Audit, 216 SCRA 134, 136, November 27, 1992.
[63] Paredes vs. Civil Service Commission, 192 SCRA 84, 94, December 4, 1990.
[64] gSec. 21. No treaty or international agreement shall be valid and effective
unless concurred in by at least two-thirds of all the Members of the Senate.h
[65] Readerfs Digest, December 1996 issue, p. 28.
7. Republic of the Philippines
SUPREME COURT
Manila
EN BANC

G.R. No. 127325 March 19, 1997
MIRIAM DEFENSOR SANTIAGO, ALEXANDER PADILLA, and MARIA ISABEL ONGPIN, petitioner
s,
vs.
COMMISSION ON ELECTIONS, JESUS DELFIN, ALBERTO PEDROSA & CARMEN PEDROSA, in thei
r capacities as founding members of the People's Initiative for Reforms, Moderni
zation and Action (PIRMA), respondents.
SENATOR RAUL S. ROCO, DEMOKRASYA-IPAGTANGGOL ANG KONSTITUSYON (DIK), MOVEMENT OF
ATTORNEYS FOR BROTHERHOOD INTEGRITY AND NATIONALISM, INC. (MABINI), INTEGRATED
BAR OF THE PHILIPPINES (IBP), and LABAN NG DEMOKRATIKONG PILIPINO (LABAN), petit
ioners-intervenors.

DAVIDE, JR., J.:
The heart of this controversy brought to us by way of a petition for prohibition
under Rule 65 of the Rules of Court is the right of the people to directly prop
ose amendments to the Constitution through the system of initiative under Sectio
n 2 of Article XVII of the 1987 Constitution. Undoubtedly, this demands special
attention, as this system of initiative was unknown to the people of this countr
y, except perhaps to a few scholars, before the drafting of the 1987 Constitutio
n. The 1986 Constitutional Commission itself, through the original proponent 1 a
nd the main sponsor 2 of the proposed Article on Amendments or Revision of the C
onstitution, characterized this system as "innovative". 3 Indeed it is, for both
under the 1935 and 1973 Constitutions, only two methods of proposing amendments
to, or revision of, the Constitution were recognized, viz., (1) by Congress upo
n a vote of three-fourths of all its members and (2) by a constitutional convent
ion. 4 For this and the other reasons hereafter discussed, we resolved to give d
ue course to this petition.
On 6 December 1996, private respondent Atty. Jesus S. Delfin filed with public r
espondent Commission on Elections (hereafter, COMELEC) a "Petition to Amend the
Constitution, to Lift Term Limits of Elective Officials, by People's Initiative"
(hereafter, Delfin Petition) 5 wherein Delfin asked the COMELEC for an order
1. Fixing the time and dates for signature gathering all over the country;
2. Causing the necessary publications of said Order and the attached "Petit
ion for Initiative on the 1987 Constitution, in newspapers of general and local
circulation;
3. Instructing Municipal Election Registrars in all Regions of the Philippi
nes, to assist Petitioners and volunteers, in establishing signing stations at t
he time and on the dates designated for the purpose.
Delfin alleged in his petition that he is a founding member of the Movement for
People's Initiative, 6 a group of citizens desirous to avail of the system inten
ded to institutionalize people power; that he and the members of the Movement an
d other volunteers intend to exercise the power to directly propose amendments t
o the Constitution granted under Section 2, Article XVII of the Constitution; th
at the exercise of that power shall be conducted in proceedings under the contro
l and supervision of the COMELEC; that, as required in COMELEC Resolution No. 23
00, signature stations shall be established all over the country, with the assis
tance of municipal election registrars, who shall verify the signatures affixed
by individual signatories; that before the Movement and other volunteers can gat
her signatures, it is necessary that the time and dates to be designated for the
purpose be first fixed in an order to be issued by the COMELEC; and that to ade
quately inform the people of the electoral process involved, it is likewise nece
ssary that the said order, as well as the Petition on which the signatures shall
be affixed, be published in newspapers of general and local circulation, under
the control and supervision of the COMELEC.
The Delfin Petition further alleged that the provisions sought to be amended are
Sections 4 and 7 of Article VI, 7 Section 4 of Article VII, 8 and Section 8 of
Article X 9 of the Constitution. Attached to the petition is a copy of a "Petiti
on for Initiative on the 1987 Constitution" 10 embodying the proposed amendments
which consist in the deletion from the aforecited sections of the provisions co
ncerning 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 VI
I, 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 num
ber of registered voters in the country it will be formally filed with the COMEL
EC.
Upon the filing of the Delfin Petition, which was forthwith given the number UND
96-037 (INITIATIVE), the COMELEC, through its Chairman, issued an Order 11 (a)
directing Delfin "to cause the publication of the petition, together with the at
tached Petition for Initiative on the 1987 Constitution (including the proposal,
proposed constitutional amendment, and the signature form), and the notice of h
earing in three (3) daily newspapers of general circulation at his own expense"
not later than 9 December 1996; and (b) setting the case for hearing on 12 Decem
ber 1996 at 10:00 a.m.
At the hearing of the Delfin Petition on 12 December 1996, the following appeare
d: Delfin and Atty. Pete Q. Quadra; representatives of the People's Initiative f
or Reforms, Modernization and Action (PIRMA); intervenor-oppositor Senator Raul
S. Roco, together with his two other lawyers, and representatives of, or counsel
for, the Integrated Bar of the Philippines (IBP), Demokrasya-Ipagtanggol ang Ko
nstitusyon (DIK), Public Interest Law Center, and Laban ng Demokratikong Pilipin
o (LABAN). 12 Senator Roco, on that same day, filed a Motion to Dismiss the Delf
in Petition on the ground that it is not the initiatory petition properly cogniz
able by the COMELEC.
After hearing their arguments, the COMELEC directed Delfin and the oppositors to
file their "memoranda and/or oppositions/memoranda" within five days. 13
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 Constit
ution can only be implemented by law to be passed by Congress. No such law has b
een passed; in fact, Senate Bill No. 1290 entitled An Act Prescribing and Regula
ting Constitution Amendments by People's Initiative, which petitioner Senator Sa
ntiago filed on 24 November 1995, is still pending before the Senate Committee o
n Constitutional Amendments.
(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. H
owever, it failed to provide any subtitle on initiative on the Constitution, unl
ike in the other modes of initiative, which are specifically provided for in Sub
title 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. Form
er Senator Arturo Tolentino stressed this deficiency in the law in his privilege
speech delivered before the Senate in 1994: "There is not a single word in that
law which can be considered as implementing [the provision on constitutional in
itiative]. Such implementing provisions have been obviously left to a separate l
aw.
(3) Republic Act No. 6735 provides for the effectivity of the law after publ
ication in print media. This indicates that the Act covers only laws and not con
stitutional amendments because the latter take effect only upon ratification and
not after publication.
(4) COMELEC Resolution No. 2300, adopted on 16 January 1991 to govern "the c
onduct of initiative on the Constitution and initiative and referendum on nation
al and local laws, is ultra vires insofar as initiative on amendments to the Con
stitution is concerned, since the COMELEC has no power to provide rules and regu
lations for the exercise of the right of initiative to amend the Constitution. O
nly Congress is authorized by the Constitution to pass the implementing law.
(5) The people's initiative is limited to amendments to the Constitution, no
t to revision thereof. Extending or lifting of term limits constitutes a revisio
n and is, therefore, outside the power of the people's initiative.
(6) Finally, Congress has not yet appropriated funds for people's initiative
; neither the COMELEC nor any other government department, agency, or office has
realigned funds for the purpose.
To justify their recourse to us via the special civil action for prohibition, th
e petitioners allege that in the event the COMELEC grants the Delfin Petition, t
he people's initiative spearheaded by PIRMA would entail expenses to the nationa
l treasury for general re-registration of voters amounting to at least P180 mill
ion, not to mention the millions of additional pesos in expenses which would be
incurred in the conduct of the initiative itself. Hence, the transcendental impo
rtance to the public and the nation of the issues raised demands that this petit
ion for prohibition be settled promptly and definitely, brushing aside technical
ities of procedure and calling for the admission of a taxpayer's and legislator'
s suit. 14 Besides, there is no other plain, speedy, and adequate remedy in the
ordinary course of law.
On 19 December 1996, this Court (a) required the respondents to comment on the p
etition within a non-extendible period of ten days from notice; and (b) issued a
temporary restraining order, effective immediately and continuing until further
orders, enjoining public respondent COMELEC from proceeding with the Delfin Pet
ition, and private respondents Alberto and Carmen Pedrosa from conducting a sign
ature drive for people's initiative to amend the Constitution.
On 2 January 1997, private respondents, through Atty Quadra, filed their Comment
15 on the petition. They argue therein that:
1. IT IS NOT TRUE THAT "IT WOULD ENTAIL EXPENSES TO THE NATIONAL TREASURY F
OR GENERAL REGISTRATION OF VOTERS AMOUNTING TO AT LEAST PESOS: ONE HUNDRED EIGHT
Y MILLION (P180,000,000.00)" IF THE "COMELEC GRANTS THE PETITION FILED BY RESPON
DENT DELFIN BEFORE THE COMELEC.
2. NOT A SINGLE CENTAVO WOULD BE SPENT BY THE NATIONAL GOVERNMENT IF THE CO
MELEC GRANTS THE PETITION OF RESPONDENT DELFIN. ALL EXPENSES IN THE SIGNATURE GA
THERING ARE ALL FOR THE ACCOUNT OF RESPONDENT DELFIN AND HIS VOLUNTEERS PER THEI
R PROGRAM OF ACTIVITIES AND EXPENDITURES SUBMITTED TO THE COMELEC. THE ESTIMATED
COST OF THE DAILY PER DIEM OF THE SUPERVISING SCHOOL TEACHERS IN THE SIGNATURE
GATHERING TO BE DEPOSITED and TO BE PAID BY DELFIN AND HIS VOLUNTEERS IS P2,571,
200.00;
3. THE PENDING PETITION BEFORE THE COMELEC IS ONLY ON THE SIGNATURE GATHERI
NG WHICH BY LAW COMELEC IS DUTY BOUND "TO SUPERVISE CLOSELY" PURSUANT TO ITS "IN
ITIATORY JURISDICTION" UPHELD BY THE HONORABLE COURT IN ITS RECENT SEPTEMBER 26,
1996 DECISION IN THE CASE OF SUBIC BAY METROPOLITAN AUTHORITY VS. COMELEC, ET A
L. G.R. NO. 125416;
4. REP. ACT NO. 6735 APPROVED ON AUGUST 4, 1989 IS THE ENABLING LAW IMPLEME
NTING THE POWER OF PEOPLE INITIATIVE TO PROPOSE AMENDMENTS TO THE CONSTITUTION.
SENATOR DEFENSOR-SANTIAGO'S SENATE BILL NO. 1290 IS A DUPLICATION OF WHAT ARE AL
READY PROVIDED FOR IN REP. ACT NO. 6735;
5. COMELEC RESOLUTION NO. 2300 PROMULGATED ON JANUARY 16, 1991 PURSUANT TO
REP. ACT 6735 WAS UPHELD BY THE HONORABLE COURT IN THE RECENT SEPTEMBER 26, 1996
DECISION IN THE CASE OF SUBIC BAY METROPOLITAN AUTHORITY VS. COMELEC, ET AL. G.
R. NO. 125416 WHERE THE HONORABLE COURT SAID: "THE COMMISSION ON ELECTIONS CAN D
O NO LESS BY SEASONABLY AND JUDICIOUSLY PROMULGATING GUIDELINES AND RULES FOR BO
TH NATIONAL AND LOCAL USE, IN IMPLEMENTING OF THESE LAWS."
6. EVEN SENATOR DEFENSOR-SANTIAGO'S SENATE BILL NO. 1290 CONTAINS A PROVISI
ON DELEGATING TO THE COMELEC THE POWER TO "PROMULGATE SUCH RULES AND REGULATIONS
AS MAY BE NECESSARY TO CARRY OUT THE PURPOSES OF THIS ACT." (SEC. 12, S.B. NO.
1290, ENCLOSED AS ANNEX E, PETITION);
7. THE LIFTING OF THE LIMITATION ON THE TERM OF OFFICE OF ELECTIVE OFFICIAL
S PROVIDED UNDER THE 1987 CONSTITUTION IS NOT A "REVISION" OF THE CONSTITUTION.
IT IS ONLY AN AMENDMENT. "AMENDMENT ENVISAGES AN ALTERATION OF ONE OR A FEW SPEC
IFIC PROVISIONS OF THE CONSTITUTION. REVISION CONTEMPLATES A RE-EXAMINATION OF T
HE ENTIRE DOCUMENT TO DETERMINE HOW AND TO WHAT EXTENT IT SHOULD BE ALTERED." (P
P. 412-413, 2ND. ED. 1992, 1097 PHIL. CONSTITUTION, BY JOAQUIN G. BERNAS, S.J.).
Also on 2 January 1997, private respondent Delfin filed in his own behalf a Comm
ent 16 which starts off with an assertion that the instant petition is a "knee-j
erk reaction to a draft 'Petition for Initiative on the 1987 Constitution'. . .
which is not formally filed yet." What he filed on 6 December 1996 was an "Initi
atory Pleading" or "Initiatory Petition," which was legally necessary to start t
he signature campaign to amend the Constitution or to put the movement to gather
signatures under COMELEC power and function. On the substantive allegations of
the petitioners, Delfin maintains as follows:
(1) Contrary to the claim of the petitioners, there is a law, R.A. No. 6735,
which governs the conduct of initiative to amend the Constitution. The absence
therein of a subtitle for such initiative is not fatal, since subtitles are not
requirements for the validity or sufficiency of laws.
(2) Section 9(b) of R.A. No. 6735 specifically provides that the proposition
in an initiative to amend the Constitution approved by the majority of the vote
s cast in the plebiscite shall become effective as of the day of the plebiscite.
(3) The claim that COMELEC Resolution No. 2300 is ultra vires is contradicte
d by (a) Section 2, Article IX-C of the Constitution, which grants the COMELEC t
he power to enforce and administer all laws and regulations relative to the cond
uct of an election, plebiscite, initiative, referendum, and recall; and (b) Sect
ion 20 of R.A. 6735, which empowers the COMELEC to promulgate such rules and reg
ulations as may be necessary to carry out the purposes of the Act.
(4) The proposed initiative does not involve a revision of, but mere amendme
nt to, the Constitution because it seeks to alter only a few specific provisions
of the Constitution, or more specifically, only those which lay term limits. It
does not seek to reexamine or overhaul the entire document.
As to the public expenditures for registration of voters, Delfin considers petit
ioners' estimate of P180 million as unreliable, for only the COMELEC can give th
e exact figure. Besides, if there will be a plebiscite it will be simultaneous w
ith the 1997 Barangay Elections. In any event, fund requirements for initiative
will be a priority government expense because it will be for the exercise of the
sovereign power of the people.
In the Comment 17 for the public respondent COMELEC, filed also on 2 January 199
7, the Office of the Solicitor General contends that:
(1) R.A. No. 6735 deals with, inter alia, people's initiative to amend the C
onstitution. Its Section 2 on Statement of Policy explicitly affirms, recognizes
, and guarantees that power; and its Section 3, which enumerates the three syste
ms of initiative, includes initiative on the Constitution and defines the same a
s the power to propose amendments to the Constitution. Likewise, its Section 5 r
epeatedly mentions initiative on the Constitution.
(2) A separate subtitle on initiative on the Constitution is not necessary i
n R.A. No. 6735 because, being national in scope, that system of initiative is d
eemed included in the subtitle on National Initiative and Referendum; and Senato
r Tolentino simply overlooked pertinent provisions of the law when he claimed th
at nothing therein was provided for initiative on the Constitution.
(3) Senate Bill No. 1290 is neither a competent nor a material proof that R.
A. No. 6735 does not deal with initiative on the Constitution.
(4) Extension of term limits of elected officials constitutes a mere amendme
nt to the Constitution, not a revision thereof.
(5) COMELEC Resolution No. 2300 was validly issued under Section 20 of R.A.
No. 6735 and under the Omnibus Election Code. The rule-making power of the COMEL
EC to implement the provisions of R.A. No. 6735 was in fact upheld by this Court
in Subic Bay Metropolitan Authority vs. COMELEC.
On 14 January 1997, this Court (a) confirmed nunc pro tunc the temporary restrai
ning order; (b) noted the aforementioned Comments and the Motion to Lift Tempora
ry Restraining Order filed by private respondents through Atty. Quadra, as well
as the latter's Manifestation stating that he is the counsel for private respond
ents Alberto and Carmen Pedrosa only and the Comment he filed was for the Pedros
as; and (c) granted the Motion for Intervention filed on 6 January 1997 by Senat
or Raul Roco and allowed him to file his Petition in Intervention not later than
20 January 1997; and (d) set the case for hearing on 23 January 1997 at 9:30 a.
m.
On 17 January 1997, the Demokrasya-Ipagtanggol ang Konstitusyon (DIK) and the Mo
vement of Attorneys for Brotherhood Integrity and Nationalism, Inc. (MABINI), fi
led a Motion for Intervention. Attached to the motion was their Petition in Inte
rvention, which was later replaced by an Amended Petition in Intervention wherei
n they contend that:
(1) The Delfin proposal does not involve a mere amendment to, but a revision
of, the Constitution because, in the words of Fr. Joaquin Bernas, S.J., 18 it w
ould involve a change from a political philosophy that rejects unlimited tenure
to one that accepts unlimited tenure; and although the change might appear to be
an isolated one, it can affect other provisions, such as, on synchronization of
elections and on the State policy of guaranteeing equal access to opportunities
for public service and prohibiting political dynasties. 19 A revision cannot be
done by initiative which, by express provision of Section 2 of Article XVII of
the Constitution, is limited to amendments.
(2) The prohibition against reelection of the President and the limits provi
ded for all other national and local elective officials are based on the philoso
phy of governance, "to open up the political arena to as many as there are Filip
inos qualified to handle the demands of leadership, to break the concentration o
f political and economic powers in the hands of a few, and to promote effective
proper empowerment for participation in policy and decision-making for the commo
n good"; hence, to remove the term limits is to negate and nullify the noble vis
ion of the 1987 Constitution.
(3) The Delfin proposal runs counter to the purpose of initiative, particula
rly in a conflict-of-interest situation. Initiative is intended as a fallback po
sition that may be availed of by the people only if they are dissatisfied with t
he performance of their elective officials, but not as a premium for good perfor
mance. 20
(4) R.A. No. 6735 is deficient and inadequate in itself to be called the ena
bling law that implements the people's initiative on amendments to the Constitut
ion. It fails to state (a) the proper parties who may file the petition, (b) the
appropriate agency before whom the petition is to be filed, (c) the contents of
the petition, (d) the publication of the same, (e) the ways and means of gather
ing the signatures of the voters nationwide and 3% per legislative district, (f)
the proper parties who may oppose or question the veracity of the signatures, (
g) the role of the COMELEC in the verification of the signatures and the suffici
ency of the petition, (h) the appeal from any decision of the COMELEC, (I) the h
olding of a plebiscite, and (g) the appropriation of funds for such people's ini
tiative. Accordingly, there being no enabling law, the COMELEC has no jurisdicti
on to hear Delfin's petition.
(5) The deficiency of R.A. No. 6735 cannot be rectified or remedied by COMEL
EC Resolution No. 2300, since the COMELEC is without authority to legislate the
procedure for a people's initiative under Section 2 of Article XVII of the Const
itution. That function exclusively pertains to Congress. Section 20 of R.A. No.
6735 does not constitute a legal basis for the Resolution, as the former does no
t set a sufficient standard for a valid delegation of power.
On 20 January 1997, Senator Raul Roco filed his Petition in
Intervention. 21 He avers that R.A. No. 6735 is the enabling law that implements
the people's right to initiate constitutional amendments. This law is a consoli
dation of Senate Bill No. 17 and House Bill No. 21505; he co-authored the House
Bill and even delivered a sponsorship speech thereon. He likewise submits that t
he COMELEC was empowered under Section 20 of that law to promulgate COMELEC Reso
lution No. 2300. Nevertheless, he contends that the respondent Commission is wit
hout jurisdiction to take cognizance of the Delfin Petition and to order its pub
lication because the said petition is not the initiatory pleading contemplated u
nder the Constitution, Republic Act No. 6735, and COMELEC Resolution No. 2300. W
hat vests jurisdiction upon the COMELEC in an initiative on the Constitution is
the filing of a petition for initiative which is signed by the required number o
f registered voters. He also submits that the proponents of a constitutional ame
ndment cannot avail of the authority and resources of the COMELEC to assist them
is securing the required number of signatures, as the COMELEC's role in an init
iative on the Constitution is limited to the determination of the sufficiency of
the initiative petition and the call and supervision of a plebiscite, if warran
ted.
On 20 January 1997, LABAN filed a Motion for Leave to Intervene.
The following day, the IBP filed a Motion for Intervention to which it attached
a Petition in Intervention raising the following arguments:
(1) Congress has failed to enact an enabling law mandated under Section 2, A
rticle XVII of the 1987 Constitution.
(2) COMELEC Resolution No. 2300 cannot substitute for the required implement
ing law on the initiative to amend the Constitution.
(3) The Petition for Initiative suffers from a fatal defect in that it does
not have the required number of signatures.
(4) The petition seeks, in effect a revision of the Constitution, which can
be proposed only by Congress or a constitutional convention. 22
On 21 January 1997, we promulgated a Resolution (a) granting the Motions for Int
ervention filed by the DIK and MABINI and by the IBP, as well as the Motion for
Leave to Intervene filed by LABAN; (b) admitting the Amended Petition in Interve
ntion of DIK and MABINI, and the Petitions in Intervention of Senator Roco and o
f the IBP; (c) requiring the respondents to file within a nonextendible period o
f five days their Consolidated Comments on the aforesaid Petitions in Interventi
on; and (d) requiring LABAN to file its Petition in Intervention within a nonext
endible period of three days from notice, and the respondents to comment thereon
within a nonextendible period of five days from receipt of the said Petition in
Intervention.
At the hearing of the case on 23 January 1997, the parties argued on the followi
ng pivotal issues, which the Court formulated in light of the allegations and ar
guments raised in the pleadings so far filed:
1. Whether R.A. No. 6735, entitled An Act Providing for a System of Initiat
ive 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.
2. Whether that portion of COMELEC Resolution No. 2300 (In re: Rules and Re
gulations Governing the Conduct of Initiative on the Constitution, and Initiativ
e 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.
3. Whether the lifting of term limits of elective national and local offici
als, as proposed in the draft "Petition for Initiative on the 1987 Constitution,
" would constitute a revision of, or an amendment to, the Constitution.
4. Whether the COMELEC can take cognizance of, or has jurisdiction over, a
petition solely intended to obtain an order (a) fixing the time and dates for si
gnature gathering; (b) instructing municipal election officers to assist Delfin'
s movement and volunteers in establishing signature stations; and (c) directing
or causing the publication of, inter alia, the unsigned proposed Petition for In
itiative on the 1987 Constitution.
5. Whether it is proper for the Supreme Court to take cognizance of the pet
ition when there is a pending case before the COMELEC.
After hearing them on the issues, we required the parties to submit simultaneous
ly their respective memoranda within twenty days and requested intervenor Senato
r Roco to submit copies of the deliberations on House Bill No. 21505.
On 27 January 1997, LABAN filed its Petition in Intervention wherein it adopts t
he allegations and arguments in the main Petition. It further submits that the C
OMELEC should have dismissed the Delfin Petition for failure to state a sufficie
nt cause of action and that the Commission's failure or refusal to do so constit
uted grave abuse of discretion amounting to lack of jurisdiction.
On 28 January 1997, Senator Roco submitted copies of portions of both the Journa
l and the Record of the House of Representatives relating to the deliberations o
f House Bill No. 21505, as well as the transcripts of stenographic notes on the
proceedings of the Bicameral Conference Committee, Committee on Suffrage and Ele
ctoral Reforms, of 6 June 1989 on House Bill No. 21505 and Senate Bill No. 17.
Private respondents Alberto and Carmen Pedrosa filed their Consolidated Comments
on the Petitions in Intervention of Senator Roco, DIK and MABINI, and IBP. 23 T
he parties thereafter filed, in due time, their separate memoranda. 24
As we stated in the beginning, we resolved to give due course to this special ci
vil action.
For a more logical discussion of the formulated issues, we shall first take up t
he fifth issue which appears to pose a prejudicial procedural question.
I
THE INSTANT PETITION IS VIABLE DESPITE THE PENDENCY IN THE COMELEC OF THE DELFIN
PETITION.
Except for the petitioners and intervenor Roco, the parties paid no serious atte
ntion to the fifth issue, i.e., whether it is proper for this Court to take cogn
izance of this special civil action when there is a pending case before the COME
LEC. The petitioners provide an affirmative answer. Thus:
28. The Comelec has no jurisdiction to take cognizance of the petition filed
by private respondent Delfin. This being so, it becomes imperative to stop the
Comelec from proceeding any further, and under the Rules of Court, Rule 65, Sect
ion 2, a petition for prohibition is the proper remedy.
29. The writ of prohibition is an extraordinary judicial writ issuing out of
a court of superior jurisdiction and directed to an inferior court, for the pur
pose of preventing the inferior tribunal from usurping a jurisdiction with which
it is not legally vested. (People v. Vera, supra., p. 84). In this case the wri
t is an urgent necessity, in view of the highly divisive and adverse environment
al consequences on the body politic of the questioned Comelec order. The consequ
ent climate of legal confusion and political instability begs for judicial state
smanship.
30. In the final analysis, when the system of constitutional law is threaten
ed by the political ambitions of man, only the Supreme Court
can save a nation in peril and uphold the paramount majesty of the Constitution.
25
It must be recalled that intervenor Roco filed with the COMELEC a motion to dism
iss the Delfin Petition on the ground that the COMELEC has no jurisdiction or au
thority to entertain the petition. 26 The COMELEC made no ruling thereon evident
ly because after having heard the arguments of Delfin and the oppositors at the
hearing on 12 December 1996, it required them to submit within five days their m
emoranda or oppositions/memoranda. 27 Earlier, or specifically on 6 December 199
6, it practically gave due course to the Delfin Petition by ordering Delfin to c
ause the publication of the petition, together with the attached Petition for In
itiative, the signature form, and the notice of hearing; and by setting the case
for hearing. The COMELEC's failure to act on Roco's motion to dismiss and its i
nsistence to hold on to the petition rendered ripe and viable the instant petiti
on under Section 2 of Rule 65 of the Rules of Court, which provides:
Sec. 2. Petition for prohibition. ? Where the proceedings of any tribunal, corpo
ration, board, or person, whether exercising functions judicial or ministerial,
are without or in excess of its or his jurisdiction, or with grave abuse of disc
retion, and there is no appeal or any other plain, speedy and adequate remedy in
the ordinary course of law, a person aggrieved thereby may file a verified peti
tion in the proper court alleging the facts with certainty and praying that judg
ment be rendered commanding the defendant to desist from further proceedings in
the action or matter specified therein.
It must also be noted that intervenor Roco claims that the COMELEC has no jurisd
iction over the Delfin Petition because the said petition is not supported by th
e required minimum number of signatures of registered voters. LABAN also asserts
that the COMELEC gravely abused its discretion in refusing to dismiss the Delfi
n Petition, which does not contain the required number of signatures. In light o
f these claims, the instant case may likewise be treated as a special civil acti
on for certiorari under Section I of Rule 65 of the Rules of Court.
In any event, as correctly pointed out by intervenor Roco in his Memorandum, thi
s Court may brush aside technicalities of procedure in
cases of transcendental importance. As we stated in Kilosbayan, Inc. v. Guingona
, Jr. 28
A party's standing before this Court is a procedural technicality which it may,
in the exercise of its discretion, set aside in view of the importance of issues
raised. In the landmark Emergency Powers Cases, this Court brushed aside this t
echnicality because the transcendental importance to the public of these cases d
emands that they be settled promptly and definitely, brushing aside, if we must,
technicalities of procedure.
II
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 r
epresented by at least three per centum of the registered voters therein. No ame
ndment under this section shall be authorized within five years following the ra
tification of this Constitution nor oftener than once every five years thereafte
r.
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 o
f the 1986 Constitutional Commission, stated:
Without implementing legislation Section 2 cannot operate. Thus, although this m
ode of amending the Constitution is a mode of amendment which bypasses congressi
onal 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 Co
nstitution through the system of initiative would remain entombed in the cold ni
che of the Constitution until Congress provides for its implementation. Stated o
therwise, while the Constitution has recognized or granted that right, the peopl
e cannot exercise it if Congress, for whatever reason, does not provide for its
implementation.
This system of initiative was originally included in Section 1 of the draft Arti
cle on Amendment or Revision proposed by the Committee on Amendments and Transit
ory Provisions of the 1986 Constitutional Commission in its Committee Report No.
7 (Proposed Resolution No. 332). 30 That section reads as follows:
Sec. 1. Any amendment to, or revision of, this Constitution may be proposed:
(a) by the National Assembly upon a vote of three-fourths of all its members
; or
(b) by a constitutional convention; or
(c) directly by the people themselves thru initiative as provided for in Art
icle___ Section ___of the Constitution. 31
After several interpellations, but before the period of amendments, the Committe
e submitted a new formulation of the concept of initiative which it denominated
as Section 2; thus:
MR. SUAREZ. Thank you, Madam President. May we respectfully call attention o
f the Members of the Commission that pursuant to the mandate given to us last ni
ght, we submitted this afternoon a complete Committee Report No. 7 which embodie
s the proposed provision governing the matter of initiative. This is now covered
by Section 2 of the complete committee report. With the permission of the Membe
rs, may I quote Section 2:
The people may, after five years from the date of the last plebiscite held, dire
ctly propose amendments to this Constitution thru initiative upon petition of at
least ten percent of the registered voters.
This completes the blanks appearing in the original Committee Report No. 7. 32
The interpellations on Section 2 showed that the details for carrying out Sectio
n 2 are left to the legislature. Thus:
FR. BERNAS. Madam President, just two simple, clarificatory questions.
First, on Section 1 on the matter of initiative upon petition of at least 10 per
cent, there are no details in the provision on how to carry this out. Do we unde
rstand, therefore, that we are leaving this matter to the legislature?
MR. SUAREZ. That is right, Madam President.
FR. BERNAS. And do we also understand, therefore, that for as long as the le
gislature does not pass the necessary implementing law on this, this will not op
erate?
MR. SUAREZ. That matter was also taken up during the committee hearing, espe
cially with respect to the budget appropriations which would have to be legislat
ed so that the plebiscite could be called. We deemed it best that this matter be
left to the legislature. The Gentleman is right. In any event, as envisioned, n
o amendment through the power of initiative can be called until after five years
from the date of the ratification of this Constitution. Therefore, the first am
endment that could be proposed through the exercise of this initiative power wou
ld be after five years. It is reasonably expected that within that five-year per
iod, the National Assembly can come up with the appropriate rules governing the
exercise of this power.
FR. BERNAS. Since the matter is left to the legislature ? the details on how
this is to be carried out ? is it possible that, in effect, what will be presen
ted to the people for ratification is the work of the legislature rather than of
the people? Does this provision exclude that possibility?
MR. SUAREZ. No, it does not exclude that possibility because even the legisl
ature itself as a body could propose that amendment, maybe individually or colle
ctively, if it fails to muster the three-fourths vote in order to constitute its
elf as a constituent assembly and submit that proposal to the people for ratific
ation through the process of an initiative.
xxx xxx xxx
MS. AQUINO. Do I understand from the sponsor that the intention in the propo
sal is to vest constituent power in the people to amend the Constitution?
MR. SUAREZ. That is absolutely correct, Madam President.
MS. AQUINO. I fully concur with the underlying precept of the proposal in te
rms of institutionalizing popular participation in the drafting of the Constitut
ion or in the amendment thereof, but I would have a lot of difficulties in terms
of accepting the draft of Section 2, as written. Would the sponsor agree with m
e that in the hierarchy of legal mandate, constituent power has primacy over all
other legal mandates?
MR. SUAREZ. The Commissioner is right, Madam President.
MS. AQUINO. And would the sponsor agree with me that in the hierarchy of leg
al values, the Constitution is source of all legal mandates and that therefore w
e require a great deal of circumspection in the drafting and in the amendments o
f the Constitution?
MR. SUAREZ. That proposition is nondebatable.
MS. AQUINO. Such that in order to underscore the primacy of constituent powe
r we have a separate article in the constitution that would specifically cover t
he process and the modes of amending the Constitution?
MR. SUAREZ. That is right, Madam President.
MS. AQUINO. Therefore, is the sponsor inclined, as the provisions are drafte
d now, to again concede to the legislature the process or the requirement of det
ermining the mechanics of amending the Constitution by people's initiative?
MR. SUAREZ. The matter of implementing this could very well be placed in the
hands of the National Assembly, not unless we can incorporate into this provisi
on the mechanics that would adequately cover all the conceivable situations. 33
It was made clear during the interpellations that the aforementioned Section 2 i
s limited to proposals to AMEND ? not to REVISE ? the Constitution; thus:
MR. SUAREZ. . . . This proposal was suggested on the theory that this matter
of initiative, which came about because of the extraordinary developments this
year, has to be separated from the traditional modes of amending the Constitutio
n as embodied in Section 1. The committee members felt that this system of initi
ative should not extend to the revision of the entire Constitution, so we remove
d it from the operation of Section 1 of the proposed Article on Amendment or Rev
ision. 34
xxx xxx xxx
MS. AQUINO. In which case, I am seriously bothered by providing this process
of initiative as a separate section in the Article on Amendment. Would the spon
sor be amenable to accepting an amendment in terms of realigning Section 2 as an
other subparagraph (c) of Section 1, instead of setting it up as another separat
e section as if it were a self-executing provision?
MR. SUAREZ. We would be amenable except that, as we clarified a while ago, t
his process of initiative is limited to the matter of amendment and should not e
xpand into a revision which contemplates a total overhaul of the Constitution. T
hat was the sense that was conveyed by the Committee.
MS. AQUINO. In other words, the Committee was attempting to distinguish the
coverage of modes (a) and (b) in Section 1 to include the process of revision; w
hereas the process of initiation to amend, which is given to the public, would o
nly apply to amendments?
MR. SUAREZ. That is right. Those were the terms envisioned in the Committee.
35
Amendments to the proposed Section 2 were thereafter introduced by then Commissi
oner Hilario G. Davide, Jr., which the Committee accepted. Thus:
MR. DAVIDE. Thank you Madam President. I propose to substitute the entire Se
ction 2 with the following:
MR. DAVIDE. Madam President, I have modified the proposed amendment after ta
king into account the modifications submitted by the sponsor himself and the hon
orable Commissioners Guingona, Monsod, Rama, Ople, de los Reyes and Romulo. The
modified amendment in substitution of the proposed Section 2 will now read as fo
llows: "SECTION 2. ? AMENDMENTS TO THIS CONSTITUTION MAY LIKEWISE BE DIRECTLY PR
OPOSED BY THE PEOPLE THROUGH INITIATIVE UPON A PETITION OF AT LEAST TWELVE PERCE
NT OF THE TOTAL NUMBER Of REGISTERED VOTERS, OF WHICH EVERY LEGISLATIVE DISTRICT
MUST BE REPRESENTED BY AT LEAST THREE PERCENT OF THE REGISTERED VOTERS THEREOF.
NO AMENDMENT UNDER THIS SECTION SHALL BE AUTHORIZED WITHIN FIVE YEARS FOLLOWING
THE RATIFICATION OF THIS CONSTITUTION NOR OFTENER THAN ONCE EVERY FIVE YEARS TH
EREAFTER.
THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE FOR THE IMPLEMENTATION OF THE EXERCIS
E OF THIS RIGHT.
MR. SUAREZ. Madam President, considering that the proposed amendment is refl
ective of the sense contained in Section 2 of our completed Committee Report No.
7, we accept the proposed amendment. 36
The interpellations which ensued on the proposed modified amendment to Section 2
clearly showed that it was a legislative act which must implement the exercise
of the right. Thus:
MR. ROMULO. Under Commissioner Davide's amendment, is it possible for the le
gislature to set forth certain procedures to carry out the initiative. . .?
MR. DAVIDE. It can.
xxx xxx xxx
MR. ROMULO. But the Commissioner's amendment does not prevent the legislatur
e from asking another body to set the proposition in proper form.
MR. DAVIDE. The Commissioner is correct. In other words, the implementation
of this particular right would be subject to legislation, provided the legislatu
re cannot determine anymore the percentage of the requirement.
MR. ROMULO. But the procedures, including the determination of the proper fo
rm for submission to the people, may be subject to legislation.
MR. DAVIDE. As long as it will not destroy the substantive right to initiate
. In other words, none of the procedures to be proposed by the legislative body
must diminish or impair the right conceded here.
MR. ROMULO. In that provision of the Constitution can the procedures which I
have discussed be legislated?
MR. DAVIDE. Yes. 37
Commissioner Davide also reaffirmed that his modified amendment strictly confine
s initiative to AMENDMENTS to ? NOT REVISION of ? the Constitution. Thus:
MR. DAVIDE. With pleasure, Madam President.
MR. MAAMBONG. My first question: Commissioner Davide's proposed amendment on l
ine 1 refers to "amendment." Does it not cover the word "revision" as defined by
Commissioner Padilla when he made the distinction between the words "amendments
" and "revision"?
MR. DAVIDE. No, it does not, because "amendments" and "revision" should be c
overed by Section 1. So insofar as initiative is concerned, it can only relate t
o "amendments" not "revision." 38
Commissioner Davide further emphasized that the process of proposing amendments
through initiative must be more rigorous and difficult than the initiative on le
gislation. Thus:
MR. DAVIDE. A distinction has to be made that under this proposal, what is i
nvolved is an amendment to the Constitution. To amend a Constitution would ordin
arily require a proposal by the National Assembly by a vote of three-fourths; an
d to call a constitutional convention would require a higher number. Moreover, j
ust to submit the issue of calling a constitutional convention, a majority of th
e National Assembly is required, the import being that the process of amendment
must be made more rigorous and difficult than probably initiating an ordinary le
gislation or putting an end to a law proposed by the National Assembly by way of
a referendum. I cannot agree to reducing the requirement approved by the Commit
tee on the Legislative because it would require another voting by the Committee,
and the voting as precisely based on a requirement of 10 percent. Perhaps, I mi
ght present such a proposal, by way of an amendment, when the Commission shall t
ake up the Article on the Legislative or on the National Assembly on plenary ses
sions. 39
The Davide modified amendments to Section 2 were subjected to amendments, and th
e final version, which the Commission approved by a vote of 31 in favor and 3 ag
ainst, reads as follows:
MR. DAVIDE. Thank you Madam President. Section 2, as amended, reads as follo
ws: "AMENDMENT TO THIS CONSTITUTION MAY LIKEWISE BE DIRECTLY PROPOSED BY THE PEO
PLE THROUGH INITIATIVE UPON A PETITION OF AT LEAST TWELVE PERCENT OF THE TOTAL N
UMBER OF REGISTERED VOTERS, OF WHICH EVERY LEGISLATIVE DISTRICT MUST BE REPRESEN
TED BY AT LEAST THREE PERCENT OF THE REGISTERED VOTERS THEREOF. NO AMENDMENT UND
ER THIS SECTION SHALL BE AUTHORIZED WITHIN FIVE YEARS FOLLOWING THE RATIFICATION
OF THIS CONSTITUTION NOR OFTENER THAN ONCE EVERY FIVE YEARS THEREAFTER.
THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE
FOR THE IMPLEMENTATION OF THE EXERCISE OF THIS RIGHT. 40
The entire proposed Article on Amendments or Revisions was approved on second re
ading on 9 July 1986. 41 Thereafter, upon his motion for reconsideration, Commis
sioner Gascon was allowed to introduce an amendment to Section 2 which, neverthe
less, was withdrawn. In view thereof, the Article was again approved on Second a
nd Third Readings on 1 August 1986. 42
However, the Committee on Style recommended that the approved Section 2 be amend
ed by changing "percent" to "per centum" and "thereof" to "therein" and deleting
the phrase "by law" in the second paragraph so that said paragraph reads: The C
ongress 43 shall provide for the implementation of the exercise of this right. 4
4 This amendment was approved and is the text of the present second paragraph of
Section 2.
The conclusion then is inevitable that, indeed, the system of initiative on the
Constitution under Section 2 of Article XVII of the Constitution is not self-exe
cutory.
Has Congress "provided" for the implementation of the exercise of this right? Th
ose who answer the question in the affirmative, like the private respondents and
intervenor Senator Roco, point to us R.A. No. 6735.
There is, of course, no other better way for Congress to implement the exercise
of the right than through the passage of a statute or legislative act. This is t
he essence or rationale of the last minute amendment by the Constitutional Commi
ssion to substitute the last paragraph of Section 2 of Article XVII then reading
:
The Congress 45 shall by law provide for the implementation of the exercise of t
his right.
with
The Congress shall provide for the implementation of the exercise of this right.
This substitute amendment was an investiture on Congress of a power to provide f
or the rules implementing the exercise of the right. The "rules" means "the deta
ils on how [the right] is to be carried out." 46
We agree that R.A. No. 6735 was, as its history reveals, intended to cover initi
ative to propose amendments to the Constitution. The Act is a consolidation of H
ouse Bill No. 21505 and Senate Bill No. 17. The former was prepared by the Commi
ttee on Suffrage and Electoral Reforms of the House of Representatives on the ba
sis of two House Bills referred to it, viz., (a) House Bill No. 497, 47 which de
alt with the initiative and referendum mentioned
in Sections 1 and 32 of Article VI of the Constitution; and (b) House Bill No. 9
88, 48 which dealt with the subject matter of House Bill No. 497, as well as wit
h initiative and referendum under Section 3 of Article X (Local Government) and
initiative provided for in Section 2 of Article XVII of the Constitution. Senate
Bill No. 17 49 solely dealt with initiative and referendum concerning ordinance
s or resolutions of local government units. The Bicameral Conference Committee c
onsolidated Senate Bill No. 17 and House Bill No. 21505 into a draft bill, which
was subsequently approved on 8 June 1989 by the Senate 50 and by the House of R
epresentatives. 51 This approved bill is now R.A. No. 6735.
But is R.A. No. 6735 a full compliance with the power and duty of Congress to "p
rovide for the implementation of the exercise of the right?"
A careful scrutiny of the Act yields a negative answer.
First. Contrary to the assertion of public respondent COMELEC, Section 2 of the
Act does not suggest an initiative on amendments to the Constitution. The said
section reads:
Sec. 2. Statement and Policy. ? The power of the people under a system of initia
tive and referendum to directly propose, enact, approve or reject, in whole or i
n part, the Constitution, laws, ordinances, or resolutions passed by any legisla
tive body upon compliance with the requirements of this Act is hereby affirmed,
recognized and guaranteed. (Emphasis supplied).
The inclusion of the word "Constitution" therein was a delayed afterthought. Tha
t word is neither germane nor relevant to said section, which exclusively relate
s to initiative and referendum on national laws and local laws, ordinances, and
resolutions. That section is silent as to amendments on the Constitution. As poi
nted out earlier, initiative on the Constitution is confined only to proposals t
o AMEND. The people are not accorded the power to "directly propose, enact, appr
ove, or reject, in whole or in part, the Constitution" through the system of ini
tiative. They can only do so with respect to "laws, ordinances, or resolutions."
The foregoing conclusion is further buttressed by the fact that this section was
lifted from Section 1 of Senate Bill No. 17, which solely referred to a stateme
nt of policy on local initiative and referendum and appropriately used the phras
es "propose and enact," "approve or reject" and "in whole or in part." 52
Second. It is true that Section 3 (Definition of Terms) of the Act defines initi
ative on amendments to the Constitution and mentions it as one of the three syst
ems of initiative, and that Section 5 (Requirements) restates the constitutional
requirements as to the percentage of the registered voters who must submit the
proposal. But unlike in the case of the other systems of initiative, the Act doe
s not provide for the contents of a petition for initiative on the Constitution.
Section 5, paragraph (c) requires, among other things, statement of the propose
d law sought to be enacted, approved or rejected, amended or repealed, as the ca
se may be. It does not include, as among the contents of the petition, the provi
sions of the Constitution sought to be amended, in the case of initiative on the
Constitution. Said paragraph (c) reads in full as follows:
(c) The petition shall state the following:
c.1 contents or text of the proposed law sought to be enacted, approved or r
ejected, amended or repealed, as the case may be;
c.2 the proposition;
c.3 the reason or reasons therefor;
c.4 that it is not one of the exceptions provided therein;
c.5 signatures of the petitioners or registered voters; and
c.6 an abstract or summary proposition is not more than one hundred (100) wo
rds which shall be legibly written or printed at the top of every page of the pe
tition. (Emphasis supplied).
The use of the clause "proposed laws sought to be enacted, approved or rejected,
amended or repealed" only strengthens the conclusion that Section 2, quoted ear
lier, excludes initiative on amendments to the Constitution.
Third. While the Act provides subtitles for National Initiative and Referendum
(Subtitle II) and for Local Initiative and Referendum (Subtitle III), no subtitl
e is provided for initiative on the Constitution. This conspicuous silence as to
the latter simply means that the main thrust of the Act is initiative and refer
endum on national and local laws. If Congress intended R.A. No. 6735 to fully pr
ovide for the implementation of the initiative on amendments to the Constitution
, it could have provided for a subtitle therefor, considering that in the order
of things, the primacy of interest, or hierarchy of values, the right of the peo
ple to directly propose amendments to the Constitution is far more important tha
n the initiative on national and local laws.
We cannot accept the argument that the initiative on amendments to the Constitut
ion is subsumed under the subtitle on National Initiative and Referendum because
it is national in scope. Our reading of Subtitle II (National Initiative and Re
ferendum) and Subtitle III (Local Initiative and Referendum) leaves no room for
doubt that the classification is not based on the scope of the initiative involv
ed, but on its nature and character. It is "national initiative," if what is pro
posed to be adopted or enacted is a national law, or a law which only Congress c
an pass. It is "local initiative" if what is proposed to be adopted or enacted i
s a law, ordinance, or resolution which only the legislative bodies of the gover
nments of the autonomous regions, provinces, cities, municipalities, and baranga
ys can pass. This classification of initiative into national and local is actual
ly based on Section 3 of the Act, which we quote for emphasis and clearer unders
tanding:
Sec. 3. Definition of terms ?
xxx xxx xxx
There are three (3) systems of initiative, namely:
a.1 Initiative on the Constitution which refers to a petition proposing amen
dments to the Constitution;
a.2 Initiative on Statutes which refers to a petition proposing to enact a n
ational legislation; and
a.3 Initiative on local legislation which refers to a petition proposing to
enact a regional, provincial, city, municipal, or barangay law, resolution or or
dinance. (Emphasis supplied).
Hence, to complete the classification under subtitles there should have been a s
ubtitle on initiative on amendments to the Constitution. 53
A further examination of the Act even reveals that the subtitling is not accurat
e. Provisions not germane to the subtitle on National Initiative and Referendum
are placed therein, like (1) paragraphs (b) and (c) of Section 9, which reads:
(b) The proposition in an initiative on the Constitution approved by the maj
ority of the votes cast in the plebiscite shall become effective as to the day o
f the plebiscite.
(c) A national or local initiative proposition approved by majority of the v
otes cast in an election called for the purpose shall become effective fifteen (
15) days after certification and proclamation of the Commission. (Emphasis suppl
ied).
(2) that portion of Section 11 (Indirect Initiative) referring to indirect i
nitiative with the legislative bodies of local governments; thus:
Sec. 11. Indirect Initiative. ? Any duly accredited people's organization
, as defined by law, may file a petition for indirect initiative with the House
of Representatives, and other legislative bodies. . . .
and (3) Section 12 on Appeal, since it applies to decisions of the COMELEC on th
e findings of sufficiency or insufficiency of the petition for initiative or ref
erendum, which could be petitions for both national and local initiative and ref
erendum.
Upon the other hand, Section 18 on "Authority of Courts" under subtitle III on L
ocal Initiative and Referendum is misplaced, 54 since the provision therein appl
ies to both national and local initiative and referendum. It reads:
Sec. 18. Authority of Courts. ? Nothing in this Act shall prevent or prec
lude the proper courts from declaring null and void any proposition approved pur
suant to this Act for violation of the Constitution or want of capacity of the l
ocal legislative body to enact the said measure.
Curiously, too, while R.A. No. 6735 exerted utmost diligence and care in providi
ng for the details in the implementation of initiative and referendum on nationa
l and local legislation thereby giving them special attention, it failed, rather
intentionally, to do so on the system of initiative on amendments to the Consti
tution. Anent the initiative on national legislation, the Act provides for the f
ollowing:
(a) The required percentage of registered voters to sign the petition and th
e contents of the petition;
(b) The conduct and date of the initiative;
(c) The submission to the electorate of the proposition and the required num
ber of votes for its approval;
(d) The certification by the COMELEC of the approval of the proposition;
(e) The publication of the approved proposition in the Official Gazette or i
n a newspaper of general circulation in the Philippines; and
(f) The effects of the approval or rejection of the proposition. 55
As regards local initiative, the Act provides for the following:
(a) The preliminary requirement as to the number of signatures of registered
voters for the petition;
(b) The submission of the petition to the local legislative body concerned;
(c) The effect of the legislative body's failure to favorably act thereon, a
nd the invocation of the power of initiative as a consequence thereof;
(d) The formulation of the proposition;
(e) The period within which to gather the signatures;
(f) The persons before whom the petition shall be signed;
(g) The issuance of a certification by the COMELEC through its official in t
he local government unit concerned as to whether the required number of signatur
es have been obtained;
(h) The setting of a date by the COMELEC for the submission of the propositi
on to the registered voters for their approval, which must be within the period
specified therein;
(i) The issuance of a certification of the result;
(j) The date of effectivity of the approved proposition;
(k) The limitations on local initiative; and
(l) The limitations upon local legislative bodies. 56
Upon the other hand, as to initiative on amendments to the Constitution, R.A. No
. 6735, in all of its twenty-three sections, merely (a) mentions, the word "Cons
titution" in Section 2; (b) defines "initiative on the Constitution" and include
s it in the enumeration of the three systems of initiative in Section 3; (c) spe
aks of "plebiscite" as the process by which the proposition in an initiative on
the Constitution may be approved or rejected by the people; (d) reiterates the c
onstitutional requirements as to the number of voters who should sign the petiti
on; and (e) provides for the date of effectivity of the approved proposition.
There was, therefore, an obvious downgrading of the more important or the paramo
unt system of initiative. RA. No. 6735 thus delivered a humiliating blow to the
system of initiative on amendments to the Constitution by merely paying it a rel
uctant lip service. 57
The foregoing brings us to the conclusion that R.A. No. 6735 is incomplete, inad
equate, or wanting in essential terms and conditions insofar as initiative on am
endments to the Constitution is concerned. Its lacunae on this substantive matte
r are fatal and cannot be cured by "empowering" the COMELEC "to promulgate such
rules and regulations as may be necessary to carry out the purposes of [the] Act
. 58
The rule is that what has been delegated, cannot be delegated or as expressed in
a Latin maxim: potestas delegata non delegari potest. 59 The recognized excepti
ons to the rule are as follows:
(1) Delegation of tariff powers to the President under Section 28(2) of Arti
cle VI of the Constitution;
(2) Delegation of emergency powers to the President under Section 23(2) of A
rticle VI of the Constitution;
(3) Delegation to the people at large;
(4) Delegation to local governments; and
(5) Delegation to administrative bodies. 60
Empowering the COMELEC, an administrative body exercising quasi-judicial functio
ns, to promulgate rules and regulations is a form of delegation of legislative a
uthority under no. 5 above. However, in every case of permissible delegation, th
ere must be a showing that the delegation itself is valid. It is valid only if t
he law (a) is complete in itself, setting forth therein the policy to be execute
d, carried out, or implemented by the delegate; and (b) fixes a standard ? the l
imits of which are sufficiently determinate and determinable ? to which the dele
gate must conform in the performance of his functions. 61 A sufficient standard
is one which defines legislative policy, marks its limits, maps out its boundari
es and specifies the public agency to apply it. It indicates the circumstances u
nder which the legislative command is to be effected. 62
Insofar as initiative to propose amendments to the Constitution is concerned, R.
A. No. 6735 miserably failed to satisfy both requirements in subordinate legisla
tion. The delegation of the power to the COMELEC is then invalid.
III
COMELEC RESOLUTION NO. 2300, INSOFAR AS IT PRESCRIBES RULES AND REGULATIONS ON T
HE CONDUCT OF INITIATIVE ON AMENDMENTS TO THE CONSTITUTION, IS VOID.
It logically follows that the COMELEC cannot validly promulgate rules and regula
tions to implement the exercise of the right of the people to directly propose a
mendments 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 regulatio
ns 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 standar
d" tests.
IV
COMELEC ACTED WITHOUT JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION IN ENTERTAI
NING THE DELFIN PETITION.
Even if it be conceded ex gratia that R.A. No. 6735 is a full compliance with th
e power of Congress to implement the right to initiate constitutional amendments
, or that it has validly vested upon the COMELEC the power of subordinate legisl
ation and that COMELEC Resolution No. 2300 is valid, the COMELEC acted without j
urisdiction or with grave abuse of discretion in entertaining the Delfin Petitio
n.
Under Section 2 of Article XVII of the Constitution and Section 5(b) of R.A. No.
6735, a petition for initiative on the Constitution must be signed by at least
12% of the total number of registered voters of which every legislative district
is represented by at least 3% of the registered voters therein. The Delfin Peti
tion does not contain signatures of the required number of voters. Delfin himsel
f admits that he has not yet gathered signatures and that the purpose of his pet
ition is primarily to obtain assistance in his drive to gather signatures. Witho
ut the required signatures, the petition cannot be deemed validly initiated.
The COMELEC acquires jurisdiction over a petition for initiative only after its
filing. The petition then is the initiatory pleading. Nothing before its filing
is cognizable by the COMELEC, sitting en banc. The only participation of the COM
ELEC or its personnel before the filing of such petition are (1) to prescribe th
e form of the petition; 63 (2) to issue through its Election Records and Statist
ics Office a certificate on the total number of registered voters in each legisl
ative district; 64 (3) to assist, through its election registrars, in the establ
ishment of signature stations; 65 and (4) to verify, through its election regist
rars, the signatures on the basis of the registry list of voters, voters' affida
vits, and voters' identification cards used in the immediately preceding electio
n. 66
Since the Delfin Petition is not the initiatory petition under R.A. No. 6735 and
COMELEC Resolution No. 2300, it cannot be entertained or given cognizance of by
the COMELEC. The respondent Commission must have known that the petition does n
ot fall under any of the actions or proceedings under the COMELEC Rules of Proce
dure or under Resolution No. 2300, for which reason it did not assign to the pet
ition a docket number. Hence, the said petition was merely entered as UND, meani
ng, undocketed. That petition was nothing more than a mere scrap of paper, which
should not have been dignified by the Order of 6 December 1996, the hearing on
12 December 1996, and the order directing Delfin and the oppositors to file thei
r memoranda or oppositions. In so dignifying it, the COMELEC acted without juris
diction or with grave abuse of discretion and merely wasted its time, energy, an
d resources.
The foregoing considered, further discussion on the issue of whether the proposa
l to lift the term limits of elective national and local officials is an amendme
nt to, and not a revision of, the Constitution is rendered unnecessary, if not a
cademic.
CONCLUSION
This petition must then be granted, and the COMELEC should be permanently enjoin
ed from entertaining or taking cognizance of any petition for initiative on amen
dments to the Constitution until a sufficient law shall have been validly enacte
d to provide for the implementation of the system.
We feel, however, that the system of initiative to propose amendments to the Con
stitution should no longer be kept in the cold; it should be given flesh and blo
od, energy and strength. Congress should not tarry any longer in complying with
the constitutional mandate to provide for the implementation of the right of the
people under that system.
WHEREFORE, judgment is hereby rendered
a) GRANTING the instant petition;
b) DECLARING R.A. No. 6735 inadequate to cover the system of initiative on
amendments to the Constitution, and to have failed to provide sufficient standar
d for subordinate legislation;
c) DECLARING void those parts of Resolution No. 2300 of the Commission on E
lections prescribing rules and regulations on the conduct of initiative or amend
ments to the Constitution; and
d) ORDERING the Commission on Elections to forthwith DISMISS the DELFIN pet
ition (UND-96-037).
The Temporary Restraining Order issued on 18 December 1996 is made permanent as
against the Commission on Elections, but is LIFTED as against private respondent
s.
Resolution on the matter of contempt is hereby reserved.
SO ORDERED.
Narvasa, C.J., Regalado, Romero, Bellosillo, Kapunan, Hermosisima, Jr. and Torre
s, Jr., JJ., concur.
Padilla, J., took no part.



Separate Opinions

PUNO, J., concurring and dissenting:
I join the ground-breaking ponencia of our esteemed colleague, Mr. Justice David
e insofar as it orders the COMELEC to dismiss the Delfin petition. I regret, how
ever, I cannot share the view that R.A. No. 5735 and COMELEC Resolution No. 2300
are legally defective and cannot implement the people's initiative to amend the
Constitution. I likewise submit that the petition with respect to the Pedrosas
has no leg to stand on and should be dismissed. With due respect:
I
First, I submit that R.A. No. 6735 sufficiently implements the right of the peop
le to initiate amendments to the Constitution thru initiative. Our effort to dis
cover the meaning of R.A. No. 6735 should start with the search of the intent of
our lawmakers. A knowledge of this intent is critical for the intent of the leg
islature is the law and the controlling factor in its interpretation. 1 Stated o
therwise, intent is the essence of the law, the spirit which gives life to its e
nactment. 2
Significantly, the majority decision concedes that ". . . R.A. No. 6735 was inte
nded to cover initiative to propose amendments to the Constitution." It ought to
be so for this intent is crystal clear from the history of the law which was a
consolidation of House Bill No. 21505 3 and Senate Bill No. 17. 4 Senate Bill No
. 17 was entitled "An Act Providing for a System of Initiative and Referendum an
d the Exception Therefrom, Whereby People in Local Government Units Can Directly
Propose and Enact Resolutions and Ordinances or Approve or Reject any Ordinance
or Resolution Passed by the Local Legislative Body." Beyond doubt, Senate Bill
No. 17 did not include people's initiative to propose amendments to the Constitu
tion. In checkered contrast, House Bill No. 21505 5 expressly included people's
initiative to amend the Constitution. Congressman (now Senator) Raul Roco emphas
ized in his sponsorship remarks: 6
xxx xxx xxx
SPONSORSHIP REMARKS OF MR. ROCO
At the outset, Mr. Roco provided the following backgrounder on the constitutiona
l basis of the proposed measure.
1. As cited in Vera vs. Avelino (1946), the presidential system which was i
ntroduced by the 1935 Constitution saw the application of the principle of separ
ation of powers.
2. While under the parliamentary system of the 1973 Constitution the princi
ple remained applicable, the 1981 amendments to the Constitution of 1973 ensured
presidential dominance over the Batasang Pambansa.
Constitutional history then saw the shifting and sharing of legislative powers b
etween the Legislature and the Executive departments. Transcending changes in th
e exercise of legislative power is the declaration in the Philippine Constitutio
n that the Philippines is a republican state where sovereignty resides in the pe
ople and all sovereignty emanates from them.
3. Under the 1987 Constitution, the lawmaking power is still preserved in C
ongress; however, to institutionalize direct action of the people as exemplified
in the 1986 Revolution, the Constitution recognizes the power of the people, th
rough the system of initiative and referendum.
As cited in Section 1, Article VI of the 1987 Constitution, Congress does not ha
ve plenary powers since reserve powers are given to the people expressly. Sectio
n 32 of the same Article mandates Congress to pass at the soonest possible time,
a bill on referendum and initiative, and to share its legislative powers with t
he people.
Section 2, Article XVII of the 1987 Constitution, on the other hand, vests in th
e people the power to directly propose amendments to the Constitution through in
itiative, upon petition of at least 12 percent of the total number of registered
voters.
Stating that House Bill No. 21505 is the Committee's response to the duty impose
d on Congress to implement the exercise by the people of the right to initiative
and referendum, Mr. Roco recalled the beginnings of the system of initiative an
d referendum under Philippine Law. He cited Section 99 of the Local Government C
ode which vests in the barangay assembly the power to initiate legislative proce
sses, decide the holding of plebiscite and hear reports of the Sangguniang Baran
gay, all of which are variations of the power of initiative and referendum. He a
dded that the holding of barangay plebiscites and referendum are likewise provid
ed in Sections 100 and 101 of the same Code.
Thereupon, for the sake of brevity, Mr. Roco moved that pertinent quotation on t
he subject which he will later submit to the Secretary of the House be incorpora
ted as part of his sponsorship speech.
He then cited examples of initiative and referendum similar to those contained i
n the instant Bill among which are the constitutions of states in the United Sta
tes which recognize the right of registered voters to initiate the enactment of
any statute or to project any existing law or parts thereof in a referendum. The
se states, he said, are Alaska, Alabama, Montana, Massachusets, Dakota, Oklahoma
, Oregon, and practically all other states.
Mr. Roco explained that in certain American states, the kind of laws to which in
itiative and referendum apply is also without limitation, except for emergency m
easures, which are likewise incorporated in House Bill No. 21505. He added that
the procedure provided by the Bill from the filing of the petition, the requirem
ents of a certain percentage of supporters to present a proposition, to the subm
ission to electors are substantially similar to the provisions in American laws.
Although an infant in Philippine political structure, the system of initiative
and referendum, he said, is a tried and tested system in other jurisdictions, an
d the Bill is patterned after American experience.
He further explained that the bill has only 12 sections, and recalled that the C
onstitutional Commissioners saw the system of the initiative and referendum as a
n instrument which can be used should the legislature show itself to be indiffer
ent to the needs of the people. This is the reason, he claimed, why now is an op
portune time to pass the Bill even as he noted the felt necessity of the times t
o pass laws which are necessary to safeguard individual rights and liberties.
At this juncture Mr. Roco explained the process of initiative and referendum as
advocated in House Bill No. 21505. He stated that:
1. Initiative means that the people, on their own political judgment, submi
t a Bill for the consideration of the general electorate.
2. The instant Bill provides three kinds of initiative, namely; the initiat
ive to amend the Constitution once every five years; the initiative to amend sta
tutes approved by Congress; and the initiative to amend local ordinances.
3. The instant Bill gives a definite procedure and allows the Commission on
Elections (COMELEC) to define rules and regulations on the power of initiative.
4. Referendum means that the legislators seek the consent of the people on
measures that they have approved.
5. Under Section 4 of the Bill the people can initiate a referendum which i
s a mode of plebiscite by presenting a petition therefor, but under certain limi
tations, such as the signing of said petition by at least 10 percent of the tota
l of registered voters at which every legislative district is represented by at
least three percent of the registered voters thereof. Within 30 days after recei
pt of the petition, the COMELEC shall determine the sufficiency of the petition,
publish the same, and set the date of the referendum within 45 to 90-day period
.
6. When the matter under referendum or initiative is approved by the requir
ed number of votes, it shall become effective 15 days following the completion o
f its publication in the Official Gazette.
In concluding his sponsorship remarks, Mr. Roco stressed that the Members cannot
ignore the people's call for initiative and referendum and urged the Body to ap
prove House Bill No. 21505.
At this juncture, Mr. Roco also requested that the prepared text of his speech t
ogether with the footnotes be reproduced as part of the Congressional Records.
The same sentiment as to the bill's intent to implement people's initiative to a
mend the Constitution was stressed by then Congressman (now Secretary of Agricul
ture) Salvador Escudero III in his sponsorship remarks, viz: 7
xxx xxx xxx
SPONSORSHIP REMARKS OF MR. ESCUDERO
Mr. Escudero first pointed out that the people have been clamoring for a truly p
opular democracy ever since, especially in the so-called parliament of the stree
ts. A substantial segment of the population feels, he said, that the form of dem
ocracy is there, but not the reality or substance of it because of the increasin
gly elitist approach of their representatives to the country's problem.
Whereupon, Mr. Escudero pointed out that the Constitution has provided a means w
hereby the people can exercise the reserved power of initiative to propose amend
ments to the Constitution, and requested that Sections 1 and 32, Article VI; Sec
tion 3, Article X; and Section 2, Article XVII of the Constitution be made part
of his sponsorship remarks.
Mr. Escudero also stressed that an implementing law is needed for the aforecited
Constitutional provisions. While the enactment of the Bill will give way to str
ong competition among cause-oriented and sectoral groups, he continued, it will
hasten the politization of the citizenry, aid the government in forming an enlig
htened public opinion, and produce more responsive legislation. The passage of t
he Bill will also give street parliamentarians the opportunity to articulate the
ir ideas in a democratic forum, he added.
Mr. Escudero stated that he and Mr. Roco hoped for the early approval of the Bil
l so that it can be initially used for the Agrarian Reform Law. He said that the
passage of House Bill No. 21505 will show that the Members can set aside their
personal and political consideration for the greater good of the people.
The disagreeing provisions in Senate Bill No. 17 and House Bill No. 21505 were t
hreshed out in a Bicameral Conference Committee. 8 In the meeting of the Committ
ee on June 6, 1989, 9 the members agreed that the two (2) bills should be consol
idated and that the consolidated version should include people's initiative to a
mend the Constitution as contemplated by House Bill No. 21505. The transcript of
the meeting states:
xxx xxx xxx
CHAIRMAN GONZALES. But at any rate, as I have said, because this is new in
our political system, the Senate decided on a more cautious approach and limitin
g it only to the local government units because even with that stage where . . .
at least this has been quite popular, ano? It has been attempted on a national
basis. Alright. There has not been a single attempt. Now, so, kami limitado doon
. And, second, we consider also that it is only fair that the local legislative
body should be given a chance to adopt the legislation bill proposed, right? Iyo
ng sinasabing indirect system of initiative. If after all, the local legislative
assembly or body is willing to adopt it in full or in toto, there ought to be a
ny reason for initiative, ano for initiative. And, number 3, we feel that there
should be some limitation on the frequency with which it should be applied. Numb
er 4, na the people, thru initiative, cannot enact any ordinance that is beyond
the scope of authority of the local legislative body, otherwise, my God, mag-aas
sume sila ng power that is broader and greater than the grant of legislative pow
er to the Sanggunians. And Number 5, because of that, then a proposition which h
as been the result of a successful initiative can only carry the force and effec
t of an ordinance and therefore that should not deprive the court of its jurisdi
ction to declare it null and void for want of authority. Ha, di ba? I mean it is
beyond powers of local government units to enact. Iyon ang main essence namin,
so we concentrated on that. And that is why . . . so ang sa inyo naman includes
iyon sa Constitution, amendment to the Constitution eh . . . national laws. Sa a
min, if you insist on that, alright, although we feel na it will in effect becom
e a dead statute. Alright, and we can agree, we can agree. So ang mangyayari dit
o, and magiging basic nito, let us not discuss anymore kung alin and magiging ba
sic bill, ano, whether it is the Senate Bill or whether it is the House bill. Lo
gically it should be ours sapagkat una iyong sa amin eh. It is one of the first
bills approved by the Senate kaya ang number niyan, makikita mo, 17, eh. Huwag n
a nating pagusapan. Now, if you insist, really iyong features ng national at sak
a constitutional, okay. ____ gagawin na natin na consolidation of both bills.
HON. ROCO. Yes, we shall consolidate.
CHAIRMAN GONZALES. Consolidation of the Senate and House Bill No. so and so
. 10
When the consolidated bill was presented to the House for approval, then Congres
sman Roco upon interpellation by Congressman Rodolfo Albano, again confirmed tha
t it covered people's initiative to amend the Constitution. The record of the Ho
use Representative states: 11
xxx xxx xxx
THE SPEAKER PRO TEMPORE. The Gentleman from Camarines Sur is recognized.
MR. ROCO. On the Conference Committee Report on the disagreeing provisions
between Senate Bill No. 21505 which refers to the system providing for the init
iative and referendum, fundamentally, Mr. Speaker, we consolidated the Senate an
d the House versions, so both versions are totally intact in the bill. The Senat
ors ironically provided for local initiative and referendum and the House Repres
entatives correctly provided for initiative and referendum on the Constitution a
nd on national legislation.
I move that we approve the consolidated bill.
MR. ALBANO. Mr. Speaker.
THE SPEAKER PRO TEMPORE. What is the pleasure of the Minority Floor Leade
r?
MR. ALBANO. Will the distinguished sponsor answer just a few questions?
THE SPEAKER PRO TEMPORE. The Gentlemen will please proceed.
MR. ALBANO. I heard the sponsor say that the only difference in the two bill
s was that in the Senate version there was a provision for local initiative and
referendum, whereas the House version has none.
MR. ROCO. In fact, the Senate version provide purely for local initiative
and referendum, whereas in the House version, we provided purely for national an
d constitutional legislation.
MR. ALBANO. Is it our understanding therefore, that the two provisions were
incorporated?
MR. ROCO. Yes, Mr. Speaker.
MR. ALBANO. So that we will now have a complete initiative and referendum bo
th in the constitutional amendment and national legislation.
MR. ROCO. That is correct.
MR. ALBANO. And provincial as well as municipal resolutions?
MR. ROCO. Down to barangay, Mr. Speaker.
MR. ALBANO. And this initiative and referendum is in consonance with the pro
vision of the Constitution whereby it mandates this Congress to enact the enabli
ng law, so that we shall have a system which can be done every five years. Is it
five years in the provision of the Constitution?
MR. ROCO. That is correct, Mr. Speaker. For constitutional amendments in t
he 1987 Constitution, it is every five years.
MR. ALBANO. For every five years, Mr. Speaker?
MR. ROCO. Within five years, we cannot have multiple initiatives and refer
enda.
MR. ALBANO. Therefore, basically, there was no substantial difference betwee
n the two versions?
MR. ROCO. The gaps in our bill were filled by the Senate which, as I said
earlier, ironically was about local, provincial and municipal legislation.
MR. ALBANO. And the two bills were consolidated?
MR. ROCO. Yes, Mr. Speaker.
MR. ALBANO. Thank you, Mr. Speaker.
APPROVAL OF C.C.R.
ON S.B. NO. 17 AND H.B. NO. 21505
(The Initiative and Referendum Act)
THE SPEAKER PRO TEMPORE. There was a motion to approve this consolidated
bill on Senate Bill No. 17 and House Bill No. 21505.
Is there any objection? (Silence. The Chair hears none; the motion is approved.
Since it is crystalline that the intent of R.A. No. 6735 is to implement the peo
ple's initiative to amend the Constitution, it is our bounden duty to interpret
the law as it was intended by the legislature. We have ruled that once intent is
ascertained, it must be enforced even if it may not be consistent with the stri
ct letter of the law and this ruling is as old as the mountain. We have also hel
d that where a law is susceptible of more than one interpretation, that interpre
tation which will most tend to effectuate the manifest intent of the legislature
will be adopted. 12
The text of R.A. No. 6735 should therefore be reasonably construed to effectuate
its intent to implement the people's initiative to amend the Constitution. To b
e sure, we need not torture the text of said law to reach the conclusion that it
implements people's initiative to amend the Constitution. R.A. No. 6735 is repl
ete with references to this prerogative of the people.
First, the policy statement declares:
Sec. 2. Statement of Policy. ? The power of the people under a system of initiat
ive and referendum to directly propose, enact, approve or reject, in whole or in
part, the Constitution, laws, ordinances, or resolutions passed by any legislat
ive body upon compliance with the requirements of this Act is hereby affirmed, r
ecognized and guaranteed. (emphasis supplied)
Second, the law defines "initiative" as "the power of the people to propose amen
dments to the constitution or to propose and enact legislations through an elect
ion called for the purpose," and "plebiscite" as "the electoral process by which
an initiative on the Constitution is approved or rejected by the people.
Third, the law provides the requirements for a petition for initiative to amend
the Constitution. Section 5(b) states that "(a) petition for an initiative on th
e 1987 Constitution must have at least twelve per centum (12%) of the total numb
er of registered voters as signatories, of which every legislative district must
be represented by at least three per centum (3%) of the registered voters there
in." It also states that "(i)nitiative on the Constitution may be exercised only
after five (5) years from the ratification of the 1987 Constitution and only on
ce every five (5) years thereafter.
Finally, R.A. No. 6735 fixes the effectivity date of the amendment. Section 9(b)
states that "(t)he proposition in an initiative on the Constitution approved by
a majority of the votes cast in the plebiscite shall become effective as to the
day of the plebiscite.
It is unfortunate that the majority decision resorts to a strained interpretatio
n of R.A. No. 6735 to defeat its intent which it itself concedes is to implement
people's initiative to propose amendments to the Constitution. Thus, it laments
that the word "Constitution" is neither germane nor relevant to the policy thru
st of section 2 and that the statute's subtitling is not accurate. These lapses
are to be expected for laws are not always written in impeccable English. Rightl
y, the Constitution does not require our legislators to be word-smiths with the
ability to write bills with poetic commas like Jose Garcia Villa or in lyrical p
rose like Winston Churchill. But it has always been our good policy not to refus
e to effectuate the intent of a law on the ground that it is badly written. As t
he distinguished Vicente Francisco 13 reminds us: "Many laws contain words which
have not been used accurately. But the use of inapt or inaccurate language or w
ords, will not vitiate the statute if the legislative intention can be ascertain
ed. The same is equally true with reference to awkward, slovenly, or ungrammatic
al expressions, that is, such expressions and words will be construed as carryin
g the meaning the legislature intended that they bear, although such a construct
ion necessitates a departure from the literal meaning of the words used.
In the same vein, the argument that R.A. No. 7535 does not include people's init
iative to amend the Constitution simply because it lacks a sub-title on the subj
ect should be given the weight of helium. Again, the hoary rule in statutory con
struction is that headings prefixed to titles, chapters and sections of a statut
e may be consulted in aid of interpretation, but inferences drawn therefrom are
entitled to very little weight, and they can never control the plain terms of th
e enacting clauses. 14
All said, it is difficult to agree with the majority decision that refuses to en
force the manifest intent or spirit of R.A. No. 6735 to implement the people's i
nitiative to amend the Constitution. It blatantly disregards the rule cast in co
ncrete that the letter of the law must yield to its spirit for the letter of the
law is its body but its spirit is its soul. 15
II
COMELEC Resolution No. 2300, 16 promulgated under the stewardship of Commissione
r Haydee Yorac, then its Acting Chairman, spelled out the procedure on how to ex
ercise the people's initiative to amend the Constitution. This is in accord with
the delegated power granted by section 20 of R.A. No. 6735 to the COMELEC which
expressly states: "The Commission is hereby empowered to promulgate such rules
and regulations as may be necessary to carry out the purposes of this Act." By n
o means can this delegation of power be assailed as infirmed. In the benchmark c
ase of Pelaez v. Auditor General, 17 this Court, thru former Chief Justice Rober
to Concepcion laid down the test to determine whether there is undue delegation
of legislative power, viz:
xxx xxx xxx
Although Congress may delegate to another branch of the Government the power to
fill details in the execution, enforcement or administration of a law, it is ess
ential, to forestall a violation of the principle of separation of powers, that
said law: (a) be complete in itself ? it must set forth therein the policy to be
executed, carried out or implemented by the delegate ? and (b) to fix standard
? the limits of which are sufficiently determinate or determinable ? to which th
e delegate must conform in the performance of his functions. Indeed, without a s
tatutory declaration of policy, which is the essence of every law, and, without
the aforementioned standard, there would be no means to determine, with reasonab
le certainty, whether the delegate has acted within or beyond the scope of his a
uthority. Hence, he could thereby arrogate upon himself the power, not only to m
ake the law, but, also ? and this is worse ? to unmake it, by adopting measures
inconsistent with the end sought to be attained by the Act of Congress, thus nul
lifying the principle of separation of powers and the system of checks and balan
ces, and, consequently, undermining the very foundation of our republican system
.
Section 68 of the Revised Administrative Code does not meet these well-settled r
equirements for a valid delegation of the power to fix the details in the enforc
ement of a law. It does not enunciate any policy to be carried out or implemente
d by the President. Neither does it give a standard sufficiently precise to avoi
d the evil effects above referred to.
R.A. No. 6735 sufficiently states the policy and the standards to guide the COME
LEC in promulgating the law's implementing rules and regulations of the law. As
aforestated, section 2 spells out the policy of the law; viz: "The power of the
people under a system of initiative and referendum to directly propose, enact, a
pprove or reject, in whole or in part, the Constitution, laws, ordinances, or re
solutions passed by any legislative body upon compliance with the requirements o
f this Act is hereby affirmed, recognized and guaranteed." Spread out all over R
.A. No. 6735 are the standards to canalize the delegated power to the COMELEC to
promulgate rules and regulations from overflowing. Thus, the law states the num
ber of signatures necessary to start a people's initiative, 18 directs how initi
ative proceeding is commenced, 19 what the COMELEC should do upon filing of the
petition for initiative, 20 how a proposition is approved, 21 when a plebiscite
may be held, 22 when the amendment takes effect 23 and what matters may not be t
he subject of any initiative. 24 By any measure, these standards are adequate.
Former Justice Isagani A. Cruz, similarly elucidated that "a sufficient standard
is intended to map out the boundaries of the delegates' authority by defining t
he legislative policy and indicating the circumstances under which it is to be p
ursued and effected. The purpose of the sufficient standard is to prevent a tota
l transference of legislative power from the lawmaking body to the delegate." 25
In enacting R.A. No. 6735, it cannot be said that Congress totally transferred
its power to enact the law implementing people's initiative to COMELEC. A close
look at COMELEC Resolution No. 2300 will show that it merely provided the proced
ure to effectuate the policy of R.A. No. 6735 giving life to the people's initia
tive to amend the Constitution. The debates 26 in the Constitutional Commission
make it clear that the rules of procedure to enforce the people's initiative can
be delegated, thus:
MR. ROMULO. Under Commissioner Davide's amendment, it is possible for the le
gislature to set forth certain procedures to carry out the initiative. . . ?
MR. DAVIDE. It can.
xxx xxx xxx
MR. ROMULO. But the Commissioner's amendment does not prevent the legislatur
e from asking another body to set the proposition in proper form.
MR. DAVIDE. The Commissioner is correct. In other words, the implementation
of this particular right would be subject to legislation, provided the legislatu
re cannot determine anymore the percentage of the requirement.
MR. DAVIDE. As long as it will not destroy the substantive right to initiate
. In other words, none of the procedures to be proposed by the legislative body
must diminish or impair the right conceded here.
MR. ROMULO. In that provision of the Constitution can the procedures which I
have discussed be legislated?
MR. DAVIDE. Yes.
In his book, The Intent of the 1986 Constitution Writers, 27 Father Bernas likew
ise affirmed: "In response to questions of Commissioner Romulo, Davide explained
the extent of the power of the legislature over the process: it could for insta
nce, prescribe the 'proper form before (the amendment) is submitted to the peopl
e,' it could authorize another body to check the proper form. It could also auth
orize the COMELEC, for instance, to check the authenticity of the signatures of
petitioners. Davide concluded: 'As long as it will not destroy the substantive r
ight to initiate. In other words, none of the procedures to be proposed by the l
egislative body must diminish or impair the right conceded here.'" Quite clearly
, the prohibition against the legislature is to impair the substantive right of
the people to initiate amendments to the Constitution. It is not, however, prohi
bited from legislating the procedure to enforce the people's right of initiative
or to delegate it to another body like the COMELEC with proper standard.
A survey of our case law will show that this Court has prudentially refrained fr
om invalidating administrative rules on the ground of lack of adequate legislati
ve standard to guide their promulgation. As aptly perceived by former Justice Cr
uz, "even if the law itself does not expressly pinpoint the standard, the courts
will bend backward to locate the same elsewhere in order to spare the statute,
if it can, from constitutional infirmity." 28 He cited the ruling in Hirabayashi
v. United States, 29 viz:
xxx xxx xxx
It is true that the Act does not in terms establish a particular standard to whi
ch orders of the military commander are to conform, or require findings to be ma
de as a prerequisite to any order. But the Executive Order, the Proclamations an
d the statute are not to be read in isolation from each other. They were parts o
f a single program and must be judged as such. The Act of March 21, 1942, was an
adoption by Congress of the Executive Order and of the Proclamations. The Procl
amations themselves followed a standard authorized by the Executive Order ? the
necessity of protecting military resources in the designated areas against espio
nage and sabotage.
In the case at bar, the policy and the standards are bright-lined in R.A. No. 67
35. A 20-20 look at the law cannot miss them. They were not written by our legis
lators in invisible ink. The policy and standards can also be found in no less t
han section 2, Article XVII of the Constitution on Amendments or Revisions. Ther
e is thus no reason to hold that the standards provided for in R.A. No. 6735 are
insufficient for in other cases we have upheld as adequate more general standar
ds such as "simplicity and dignity," 30 "public interest," 31 "public welfare,"
32 "interest of law and order," 33 "justice and equity," 34 "adequate and effici
ent instruction," 35 "public safety," 36 "public policy", 37 "greater national i
nterest", 38 "protect the local consumer by stabilizing and subsidizing domestic
pump rates", 39 and "promote simplicity, economy and efficiency in government."
40 A due regard and respect to the legislature, a co-equal and coordinate branc
h of government, should counsel this Court to refrain from refusing to effectuat
e laws unless they are clearly unconstitutional.
III
It is also respectfully submitted that the petition should he dismissed with res
pect to the Pedrosas. The inclusion of the Pedrosas in the petition is utterly b
aseless. The records show that the case at bar started when respondent Delfin al
one and by himself filed with the COMELEC a Petition to Amend the Constitution t
o Lift Term Limits of Elective Officials by People's Initiative. The Pedrosas di
d not join the petition. It was Senator Roco who moved to intervene and was allo
wed to do so by the COMELEC. The petition was heard and before the COMELEC could
resolve the Delfin petition, the case at bar was filed by the petitioners with
this Court. Petitioners sued the COMELEC. Jesus Delfin, Alberto Pedrosa and Carm
en Pedrosa in their capacities as founding members of the People's Initiative fo
r Reform, Modernization and Action (PIRMA). The suit is an original action for p
rohibition with prayer for temporary restraining order and/or writ of preliminar
y injunction.
The petition on its face states no cause of action against the Pedrosas. The onl
y allegation against the Pedrosas is that they are founding members of the PIRMA
which proposes to undertake the signature drive for people's initiative to amen
d the Constitution. Strangely, the PIRMA itself as an organization was not imple
aded as a respondent. Petitioners then prayed that we order the Pedrosas ". . .
to desist from conducting a signature drive for a people's initiative to amend t
he Constitution." On December 19, 1996, we temporarily enjoined the Pedrosas ".
. . from conducting a signature drive for people's initiative to amend the Const
itution." It is not enough for the majority to lift the temporary restraining or
der against the Pedrosas. It should dismiss the petition and all motions for con
tempt against them without equivocation.
One need not draw a picture to impart the proposition that in soliciting signatu
res to start a people's initiative to amend the Constitution the Pedrosas are no
t engaged in any criminal act. Their solicitation of signatures is a right guara
nteed in black and white by section 2 of Article XVII of the Constitution which
provides that ". . . amendments to this Constitution may likewise be directly pr
oposed by the people through initiative. . ." This right springs from the princi
ple proclaimed in section 1, Article II of the Constitution that in a democratic
and republican state "sovereignty resides in the people and all government auth
ority emanates from them." The Pedrosas are part of the people and their voice i
s part of the voice of the people. They may constitute but a particle of our sov
ereignty but no power can trivialize them for sovereignty is indivisible.
But this is not all. Section 16 of Article XIII of the Constitution provides: "T
he right of the people and their organizations to effective and reasonable parti
cipation at all levels of social, political and economic decision-making shall n
ot be abridged. The State shall by law, facilitate the establishment of adequate
consultation mechanisms." This is another novel provision of the 1987 Constitut
ion strengthening the sinews of the sovereignty of our people. In soliciting sig
natures to amend the Constitution, the Pedrosas are participating in the politic
al decision-making process of our people. The Constitution says their right cann
ot be abridged without any ifs and buts. We cannot put a question mark on their
right.
Over and above these new provisions, the Pedrosas' campaign to amend the Constit
ution is an exercise of their freedom of speech and expression and their right t
o petition the government for redress of grievances. We have memorialized this u
niversal right in all our fundamental laws from the Malolos Constitution to the
1987 Constitution. We have iterated and reiterated in our rulings that freedom o
f speech is a preferred right, the matrix of other important rights of our peopl
e. Undeniably, freedom of speech enervates the essence of the democratic creed o
f think and let think. For this reason, the Constitution encourages speech even
if it protects the speechless.
It is thus evident that the right of the Pedrosas to solicit signatures to start
a people's initiative to amend the Constitution does not depend on any law, muc
h less on R.A. 6735 or COMELEC Resolution No. 2300. No law, no Constitution can
chain the people to an undesirable status quo. To be sure, there are no irrepeal
able laws just as there are no irrepealable Constitutions. Change is the predica
te of progress and we should not fear change. Mankind has long recognized the tr
uism that the only constant in life is change and so should the majority.
IV
In a stream of cases, this Court has rhapsodized people power as expanded in the
1987 Constitution. On October 5, 1993, we observed that people's might is no lo
nger a myth but an article of faith in our Constitution. 41 On September 30, 199
4, we postulated that people power can be trusted to check excesses of governmen
t and that any effort to trivialize the effectiveness of people's initiatives ou
ght to be rejected. 42 On September 26, 1996, we pledged that ". . . this Court
as a matter of policy and doctrine will exert every effort to nurture, protect a
nd promote their legitimate exercise." 43 Just a few days ago, or on March 11, 1
997, by a unanimous decision, 44 we allowed a recall election in Caloocan City i
nvolving the mayor and ordered that he submits his right to continue in office t
o the judgment of the tribunal of the people. Thus far, we have succeeded in tra
nsforming people power from an opaque abstraction to a robust reality. The Const
itution calls us to encourage people empowerment to blossom in full. The Court c
annot halt any and all signature campaigns to amend the Constitution without set
ting back the flowering of people empowerment. More important, the Court cannot
seal the lips of people who are pro-change but not those who are anti-change wit
hout concerting the debate on charter change into a sterile talkaton. Democracy
is enlivened by a dialogue and not by a monologue for in a democracy nobody can
claim any infallibility.
Melo and Mendoza, JJ., concur.

VITUG, J., concurring and dissenting:
The COMELEC should have dismissed, outrightly, the Delfin Petition.
It does seem to me that there is no real exigency on the part of the Court to en
gross, let alone to commit, itself on all the issues raised and debated upon by
the parties. What is essential at this time would only be to resolve whether or
not the petition filed with the COMELEC, signed by Atty. Jesus S. Delfin in his
capacity as a "founding member of the Movement for People's Initiative" and seek
ing through a people initiative certain modifications on the 1987 Constitution,
can properly be regarded and given its due course. The Constitution, relative to
any proposed amendment under this method, is explicit. Section 2, Article XVII,
thereof 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 r
epresented by at least three per centum of the registered voters therein. No ame
ndment under this section shall be authorized within five years following the ra
tification of this Constitution nor oftener than once every five years thereafte
r.
The Congress shall provide for the implementation of the exercise of this right.
The Delfin petition is thus utterly deficient. Instead of complying with the con
stitutional imperatives, the petition would rather have much of its burden passe
d on, in effect, to the COMELEC. The petition would require COMELEC to schedule
"signature gathering all over the country," to cause the necessary publication o
f the petition "in newspapers of general and local circulation," and to instruct
"Municipal Election Registrars in all Regions of the Philippines to assist peti
tioners and volunteers in establishing signing stations at the time and on the d
ates designated for the purpose.
I submit, even then, that the TRO earlier issued by the Court which, consequenti
ally, is made permanent under the ponencia should be held to cover only the Delf
in petition and must not be so understood as having intended or contemplated to
embrace the signature drive of the Pedrosas. The grant of such a right is clearl
y implicit in the constitutional mandate on people initiative.
The distinct greatness of a democratic society is that those who reign are the g
overned themselves. The postulate is no longer lightly taken as just a perceived
myth but a veritable reality. The past has taught us that the vitality of gover
nment lies not so much in the strength of those who lead as in the consent of th
ose who are led. The role of free speech is pivotal but it can only have its tru
e meaning if it comes with the correlative end of being heard.
Pending a petition for a people's initiative that is sufficient in form and subs
tance, it behooves the Court, I most respectfully submit, to yet refrain from re
solving the question of whether or not Republic Act No. 6735 has effectively and
sufficiently implemented the Constitutional provision on right of the people to
directly propose constitutional amendments. Any opinion or view formulated by t
he Court at this point would at best be only a non-binding, albeit possibly pers
uasive, obiter dictum.
I vote for granting the instant petition before the Court and for clarifying tha
t the TRO earlier issued by the Court did not prescribe the exercise by the Pedr
osas of their right to campaign for constitutional amendments.

FRANCISCO, J., dissenting and concurring:
There is no question that my esteemed colleague Mr. Justice Davide has prepared
a scholarly and well-written ponencia. Nonetheless, I cannot fully subscribe to
his view that R. A. No. 6735 is inadequate to cover the system of initiative on
amendments to the Constitution.
To begin with, sovereignty under the constitution, resides in the people and all
government authority emanates from them. 1 Unlike our previous constitutions, t
he present 1987 Constitution has given more significance to this declaration of
principle for the people are now vested with power not only to propose, enact or
reject any act or law passed by Congress or by the local legislative body, but
to propose amendments to the constitution as well. 2 To implement these constitu
tional edicts, Congress in 1989 enacted Republic Act No. 6735, otherwise known a
s "The initiative and Referendum Act". This law, to my mind, amply covers an ini
tiative on the constitution. The contrary view maintained by petitioners is base
d principally on the alleged lack of sub-title in the law on initiative to amend
the constitution and on their allegation that:
Republic Act No. 6735 provides for the effectivity of the law after publication
in print media. [And] [t]his indicates that Republic Act No. 6735 covers only la
ws and not constitutional amendments, because constitutional amendments take eff
ect upon ratification not after publication. 3
which allegation manifests petitioners' selective interpretation of the law, for
under Section 9 of Republic Act No. 6735 on the Effectivity of Initiative or Re
ferendum Proposition paragraph (b) thereof is clear in providing that:
The proposition in an initiative on the constitution approved by a majority of t
he votes cast in the plebiscite shall become effective as to the day of the pleb
iscite.
It is a rule that every part of the statute must be interpreted with reference t
he context, i.e., that every part of the statute must be construed together with
the other parts and kept subservient to the general intent of the whole enactme
nt. 4 Thus, the provisions of Republic Act No. 6735 may not be interpreted in is
olation. The legislative intent behind every law is to be extracted from the sta
tute as a whole. 5
In its definition of terms, Republic Act No. 6735 defines initiative as "the pow
er of the people to propose amendments to the constitution or to propose and ena
ct legislations through an election called for the purpose". 6 The same section,
in enumerating the three systems of initiative, included an "initiative on the
constitution which refers to a petition proposing amendments to the constitution
" 7 Paragraph (e) again of Section 3 defines "plebiscite" as "the electoral proc
ess by which an initiative on the constitution is approved or rejected by the pe
ople" And as to the material requirements for an initiative on the Constitution,
Section 5(b) distinctly enumerates the following:
A petition for an initiative on the 1987 Constitution must have at least twelve
per centum (12%) of the total number of the registered voters as signatories, of
which every legislative district must be represented by at least three per cent
um (3%) of the registered voters therein. Initiative on the constitution may be
exercised only after five (5) years from the ratification of the 1987 Constituti
on and only once every five years thereafter.
These provisions were inserted, on purpose, by Congress the intent being to prov
ide for the implementation of the right to propose an amendment to the Constitut
ion by way of initiative. "A legal provision", the Court has previously said, "m
ust not be construed as to be a useless surplusage, and accordingly, meaningless
, in the sense of adding nothing to the law or having no effect whatsoever there
on". 8 That this is the legislative intent is further shown by the deliberations
in Congress, thus:
. . . More significantly, in the course of the consideration of the Conference C
ommittee Report on the disagreeing provisions of Senate Bill No. 17 and House Bi
ll No. 21505, it was noted:
MR. ROCO. On the Conference Committee Report on the disagreeing provisions
between Senate Bill No. 17 and the consolidated House Bill No. 21505 which refe
rs to the system providing for the initiative and referendum, fundamentally, Mr.
Speaker, we consolidated the Senate and the House versions, so both versions ar
e totally intact in the bill. The Senators ironically provided for local initiat
ive and referendum and the House of Representatives correctly provided for initi
ative and referendum an the Constitution and on national legislation.
I move that we approve the consolidated bill.
MR. ALBANO, Mr. Speaker.
THE SPEAKER PRO TEMPORE. What is the pleasure of the Minority Floor Leade
r?
MR. ALBANO. Will the distinguished sponsor answer just a few questions?
THE SPEAKER PRO TEMPORE. What does the sponsor say?
MR. ROCO. Willingly, Mr. Speaker.
THE SPEAKER PRO TEMPORE. The Gentleman will please proceed.
MR. ALBANO. I heard the sponsor say that the only difference in the two bill
s was that in the Senate version there was a provision for local initiative and
referendum, whereas the House version has none.
MR. ROCO. In fact, the Senate version provided purely for local initiative
and referendum, whereas in the House version, we provided purely for national a
nd constitutional legislation.
MR. ALBANO. Is it our understanding, therefore, that the two provisions were
incorporated?
MR. ROCO. Yes, Mr. Speaker.
MR. ALBANO. So that we will now have a complete initiative and referendum bo
th in the constitutional amendment and national legislation.
MR. ROCO. That is correct.
MR. ALBANO. And provincial as well as municipal resolutions?
MR. ROCO. Down to barangay, Mr. Speaker.
MR. ALBANO. And this initiative and referendum is in consonance with the pro
vision of the Constitution to enact the enabling law, so that we shall have a sy
stem which can be done every five years. Is it five years in the provision of th
e Constitution?
MR. ROCO. That is correct, Mr. Speaker. For constitutional amendments to t
he 1987 Constitution, it is every five years." (Id. [Journal and Record of the H
ouse of Representatives], Vol. VIII, 8 June 1989, p. 960; quoted in Garcia v. Co
melec, 237 SCRA 279, 292-293 [1994]; emphasis supplied)
. . . The Senate version of the Bill may not have comprehended initiatives on th
e Constitution. When consolidated, though, with the House version of the Bill an
d as approved and enacted into law, the proposal included initiative on both the
Constitution and ordinary laws. 9
Clearly then, Republic Act No. 6735 covers an initiative on the constitution. An
y other construction as what petitioners foist upon the Court constitute a betra
yal of the intent and spirit behind the enactment.
At any rate, I agree with the ponencia that the Commission on Elections, at pres
ent, cannot take any action (such as those contained in the Commission's orders
dated December 6, 9, and 12, 1996 [Annexes B, C and B-1]) indicative of its havi
ng already assumed jurisdiction over private respondents' petition. This is so b
ecause from the tenor of Section 5 (b) of R.A. No. 6735 it would appear that pro
of of procurement of the required percentage of registered voters at the time th
e petition for initiative is filed, is a jurisdictional requirement.
Thus:
A petition for an initiative on the 1987 Constitution must have at least twelve
per centum (12%) of the total number of registered voters as signatories, of whi
ch every legislative district must be represented by at least three per centum (
3%) of the registered voters therein. Initiative on the Constitution may be exer
cised only after five (5) years from the ratification of the 1987 Constitution a
nd only once every five (5) years thereafter.
Here private respondents' petition is unaccompanied by the required signatures.
This defect notwithstanding, it is without prejudice to the refiling of their pe
tition once compliance with the required percentage is satisfactorily shown by p
rivate respondents. In the absence, therefore, of an appropriate petition before
the Commission on Elections, any determination of whether private respondents'
proposal constitutes an amendment or revision is premature.
ACCORDINGLY, I take exception to the conclusion reached in the ponencia that R.A
. No. 6735 is an "inadequate" legislation to cover a people's initiative to prop
ose amendments to the Constitution. I, however, register my concurrence with the
dismissal, in the meantime, of private respondents' petition for initiative bef
ore public respondent Commission on Elections until the same be supported by pro
of of strict compliance with Section 5 (b) of R.A. No. 6735.
Melo and Mendoza, JJ., concur.

PANGANIBAN, J., concurring and dissenting:
Our distinguished colleague, Mr. Justice Hilario G. Davide Jr., writing for the
majority, holds that:
(1) The Comelec acted without jurisdiction or with grave abuse of discretion
in entertaining the "initiatory" Delfin Petition.
(2) While the Constitution allows amendments to "be directly proposed by the
people through initiative," there is no implementing law for the purpose. RA 67
35 is "incomplete, inadequate, or wanting in essential terms and conditions inso
far as initiative on amendments to the Constitution is concerned."
(3) Comelec Resolution No. 2330, "insofar as it prescribes rules and regulat
ions on the conduct of initiative on amendments to the Constitution, is void."
I concur with the first item above. Until and unless an initiatory petition can
show the required number of signatures ? in this case, 12% of all the registered
voters in the Philippines with at least 3% in every legislative district ? no p
ublic funds may be spent and no government resources may be used in an initiativ
e to amend the Constitution. Verily, the Comelec cannot even entertain any petit
ion absent such signatures. However, I dissent most respectfully from the majori
ty's two other rulings. Let me explain.
Under the above restrictive holdings espoused by the Court's majority, the Const
itution cannot be amended at all through a people's initiative. Not by Delfin, n
ot by Pirma, not by anyone, not even by all the voters of the country acting tog
ether. This decision will effectively but unnecessarily curtail, nullify, abroga
te and render inutile the people's right to change the basic law. At the very le
ast, the majority holds the right hostage to congressional discretion on whether
to pass a new law to implement it, when there is already one existing at presen
t. This right to amend through initiative, it bears stressing, is guaranteed by
Section 2, Article XVII of the Constitution, as follows:
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 r
epresented by at least three per centum of the registered voters therein. No ame
ndment under this section shall be authorized within five years following the ra
tification of this Constitution nor oftener than once every five years thereafte
r.
With all due respect, I find the majority's position all too sweeping and all to
o extremist. It is equivalent to burning the whole house to exterminate the rats
, and to killing the patient to relieve him of pain. What Citizen Delfin wants t
he Comelec to do we should reject. But we should not thereby preempt any future
effort to exercise the right of initiative correctly and judiciously. The fact t
hat the Delfin Petition proposes a misuse of initiative does not justify a ban a
gainst its proper use. Indeed, there is a right way to do the right thing at the
right time and for the right reason.
Taken Together and Interpreted Properly, the Constitution, RA 6735 and Comelec R
esolution 2300 Are Sufficient to Implement Constitutional Initiatives
While RA 6735 may not be a perfect law, it was ? as the majority openly concedes
? intended by the legislature to cover and, I respectfully submit, it contains
enough provisions to effectuate an initiative on the Constitution. 1 I completel
y agree with the inspired and inspiring opinions of Mr. Justice Reynato S. Puno
and Mr. Justice Ricardo J. Francisco that RA 6735, the Roco law on initiative, s
ufficiently implements the right of the people to initiate amendments to the Con
stitution. Such views, which I shall no longer repeat nor elaborate on, are thor
oughly consistent with this Court's unanimous en banc rulings in Subic Bay Metro
politan Authority vs. Commission on Elections, 2 that "provisions for initiative
. . . are (to be) liberally construed to effectuate their purposes, to facilita
te and not hamper the exercise by the voters of the rights granted thereby"; and
in Garcia vs. Comelec, 3 that any "effort to trivialize the effectiveness of pe
ople's initiatives ought to be rejected."
No law can completely and absolutely cover all administrative details. In recogn
ition of this, RA 6735 wisely empowered 4 the Commission on Election "to promulg
ate such rules and regulations as may be necessary to carry out the purposes of
this Act." And pursuant thereto, the Comelec issued its Resolution 2300 on 16 Ja
nuary 1991. Such Resolution, by its very words, was promulgated "to govern the c
onduct of initiative on the Constitution and initiative and referendum on nation
al and local laws," not by the incumbent Commission on Elections but by one then
composed of Acting Chairperson Haydee B. Yorac, Comms. Alfredo E. Abueg Jr., Le
opoldo L. Africa, Andres R. Flores, Dario C. Rama and Magdara B. Dimaampao. All
of these Commissioners who signed Resolution 2300 have retired from the Commissi
on, and thus we cannot ascribe any vile motive unto them, other than an honest,
sincere and exemplary effort to give life to a cherished right of our people.
The majority argues that while Resolution 2300 is valid in regard to national la
ws and local legislations, it is void in reference to constitutional amendments.
There is no basis for such differentiation. The source of and authority for the
Resolution is the same law, RA 6735.
I respectfully submit that taken together and interpreted properly and liberally
, the Constitution (particularly Art. XVII, Sec. 2), R4 6735 and Comelec Resolut
ion 2300 provide more than sufficient authority to implement, effectuate and rea
lize our people's power to amend the Constitution.
Petitioner Delfin and the Pedrosa
Spouses Should Not Be Muzzled
I am glad the majority decided to heed our plea to lift the temporary restrainin
g order issued by this Court on 18 December 1996 insofar as it prohibited Petiti
oner Delfin and the Spouses Pedrosa from exercising their right of initiative. I
n fact, I believe that such restraining order as against private respondents sho
uld not have been issued, in the first place. While I agree that the Comelec sho
uld be stopped from using public funds and government resources to help them gat
her signatures, I firmly believe that this Court has no power to restrain them f
rom exercising their right of initiative. The right to propose amendments to the
Constitution is really a species of the right of free speech and free assembly.
And certainly, it would be tyrannical and despotic to stop anyone from speaking
freely and persuading others to conform to his/her beliefs. As the eminent Volt
aire once said, "I may disagree with what you say, but I will defend to the deat
h your right to say it." After all, freedom is not really for the thought we agr
ee with, but as Justice Holmes wrote, "freedom for the thought that we hate." 5
Epilogue
By way of epilogue, let me stress the guiding tenet of my Separate Opinion. Init
iative, like referendum and recall, is a new and treasured feature of the Filipi
no constitutional system. All three are institutionalized legacies of the world-
admired EDSA people power. Like elections and plebiscites, they are hallowed exp
ressions of popular sovereignty. They are sacred democratic rights of our people
to be used as their final weapons against political excesses, opportunism, inac
tion, oppression and misgovernance; as well as their reserved instruments to exa
ct transparency, accountability and faithfulness from their chosen leaders. Whil
e on the one hand, their misuse and abuse must be resolutely struck down, on the
other, their legitimate exercise should be carefully nurtured and zealously pro
tected.
WHEREFORE, I vote to GRANT the petition of Sen. Miriam D. Santiago et al. and to
DIRECT Respondent Commission on Elections to DISMISS the Delfin Petition on the
ground of prematurity, but not on the other grounds relied upon by the majority
. I also vote to LIFT the temporary restraining order issued on 18 December 1996
insofar as it prohibits Jesus Delfin, Alberto Pedrosa and Carmen Pedrosa from e
xercising their right to free speech in proposing amendments to the Constitution
.
Melo and Mendoza, JJ., concur.

Separate Opinions
PUNO, J., concurring and dissenting:
I join the ground-breaking ponencia of our esteemed colleague, Mr. Justice David
e insofar as it orders the COMELEC to dismiss the Delfin petition. I regret, how
ever, I cannot share the view that R.A. No. 5735 and COMELEC Resolution No. 2300
are legally defective and cannot implement the people's initiative to amend the
Constitution. I likewise submit that the petition with respect to the Pedrosas
has no leg to stand on and should be dismissed. With due respect:
I
First, I submit that R.A. No. 6735 sufficiently implements the right of the peop
le to initiate amendments to the Constitution thru initiative. Our effort to dis
cover the meaning of R.A. No. 6735 should start with the search of the intent of
our lawmakers. A knowledge of this intent is critical for the intent of the leg
islature is the law and the controlling factor in its interpretation. 1 Stated o
therwise, intent is the essence of the law, the spirit which gives life to its e
nactment. 2
Significantly, the majority decision concedes that ". . . R.A. No. 6735 was inte
nded to cover initiative to propose amendments to the Constitution." It ought to
be so for this intent is crystal clear from the history of the law which was a
consolidation of House Bill No. 21505 3 and Senate Bill No. 17. 4 Senate Bill No
. 17 was entitled "An Act Providing for a System of Initiative and Referendum an
d the Exception Therefrom, Whereby People in Local Government Units Can Directly
Propose and Enact Resolutions and Ordinances or Approve or Reject any Ordinance
or Resolution Passed by the Local Legislative Body." Beyond doubt, Senate Bill
No. 17 did not include people's initiative to propose amendments to the Constitu
tion. In checkered contrast, House Bill No. 21505 5 expressly included people's
initiative to amend the Constitution. Congressman (now Senator) Raul Roco emphas
ized in his sponsorship remarks: 6
xxx xxx xxx
SPONSORSHIP REMARKS OF MR. ROCO
At the outset, Mr. Roco provided the following backgrounder on the constitutiona
l basis of the proposed measure.
1. As cited in Vera vs. Avelino (1946), the presidential system which was i
ntroduced by the 1935 Constitution saw the application of the principle of separ
ation of powers.
2. While under the parliamentary system of the 1973 Constitution the princi
ple remained applicable, the 1981 amendments to the Constitution of 1973 ensured
presidential dominance over the Batasang Pambansa.
Constitutional history then saw the shifting and sharing of legislative powers b
etween the Legislature and the Executive departments. Transcending changes in th
e exercise of legislative power is the declaration in the Philippine Constitutio
n that the Philippines is a republican state where sovereignty resides in the pe
ople and all sovereignty emanates from them.
3. Under the 1987 Constitution, the lawmaking power is still preserved in C
ongress; however, to institutionalize direct action of the people as exemplified
in the 1986 Revolution, the Constitution recognizes the power of the people, th
rough the system of initiative and referendum.
As cited in Section 1, Article VI of the 1987 Constitution, Congress does not ha
ve plenary powers since reserve powers are given to the people expressly. Sectio
n 32 of the same Article mandates Congress to pass at the soonest possible time,
a bill on referendum and initiative, and to share its legislative powers with t
he people.
Section 2, Article XVII of the 1987 Constitution, on the other hand, vests in th
e people the power to directly propose amendments to the Constitution through in
itiative, upon petition of at least 12 percent of the total number of registered
voters.
Stating that House Bill No. 21505 is the Committee's response to the duty impose
d on Congress to implement the exercise by the people of the right to initiative
and referendum, Mr. Roco recalled the beginnings of the system of initiative an
d referendum under Philippine Law. He cited Section 99 of the Local Government C
ode which vests in the barangay assembly the power to initiate legislative proce
sses, decide the holding of plebiscite and hear reports of the Sangguniang Baran
gay, all of which are variations of the power of initiative and referendum. He a
dded that the holding of barangay plebiscites and referendum are likewise provid
ed in Sections 100 and 101 of the same Code.
Thereupon, for the sake of brevity, Mr. Roco moved that pertinent quotation on t
he subject which he will later submit to the Secretary of the House be incorpora
ted as part of his sponsorship speech.
He then cited examples of initiative and referendum similar to those contained i
n the instant Bill among which are the constitutions of states in the United Sta
tes which recognize the right of registered voters to initiate the enactment of
any statute or to project any existing law or parts thereof in a referendum. The
se states, he said, are Alaska, Alabama, Montana, Massachusets, Dakota, Oklahoma
, Oregon, and practically all other states.
Mr. Roco explained that in certain American states, the kind of laws to which in
itiative and referendum apply is also without limitation, except for emergency m
easures, which are likewise incorporated in House Bill No. 21505. He added that
the procedure provided by the Bill from the filing of the petition, the requirem
ents of a certain percentage of supporters to present a proposition, to the subm
ission to electors are substantially similar to the provisions in American laws.
Although an infant in Philippine political structure, the system of initiative
and referendum, he said, is a tried and tested system in other jurisdictions, an
d the Bill is patterned after American experience.
He further explained that the bill has only 12 sections, and recalled that the C
onstitutional Commissioners saw the system of the initiative and referendum as a
n instrument which can be used should the legislature show itself to be indiffer
ent to the needs of the people. This is the reason, he claimed, why now is an op
portune time to pass the Bill even as he noted the felt necessity of the times t
o pass laws which are necessary to safeguard individual rights and liberties.
At this juncture Mr. Roco explained the process of initiative and referendum as
advocated in House Bill No. 21505. He stated that:
1. Initiative means that the people, on their own political judgment, submi
t a Bill for the consideration of the general electorate.
2. The instant Bill provides three kinds of initiative, namely; the initiat
ive to amend the Constitution once every five years; the initiative to amend sta
tutes approved by Congress; and the initiative to amend local ordinances.
3. The instant Bill gives a definite procedure and allows the Commission on
Elections (COMELEC) to define rules and regulations on the power of initiative.
4. Referendum means that the legislators seek the consent of the people on
measures that they have approved.
5. Under Section 4 of the Bill the people can initiate a referendum which i
s a mode of plebiscite by presenting a petition therefor, but under certain limi
tations, such as the signing of said petition by at least 10 percent of the tota
l of registered voters at which every legislative district is represented by at
least three percent of the registered voters thereof. Within 30 days after recei
pt of the petition, the COMELEC shall determine the sufficiency of the petition,
publish the same, and set the date of the referendum within 45 to 90-day period
.
6. When the matter under referendum or initiative is approved by the requir
ed number of votes, it shall become effective 15 days following the completion o
f its publication in the Official Gazette.
In concluding his sponsorship remarks, Mr. Roco stressed that the Members cannot
ignore the people's call for initiative and referendum and urged the Body to ap
prove House Bill No. 21505.
At this juncture, Mr. Roco also requested that the prepared text of his speech t
ogether with the footnotes be reproduced as part of the Congressional Records.
The same sentiment as to the bill's intent to implement people's initiative to a
mend the Constitution was stressed by then Congressman (now Secretary of Agricul
ture) Salvador Escudero III in his sponsorship remarks, viz: 7
xxx xxx xxx
SPONSORSHIP REMARKS OF MR. ESCUDERO
Mr. Escudero first pointed out that the people have been clamoring for a truly p
opular democracy ever since, especially in the so-called parliament of the stree
ts. A substantial segment of the population feels, he said, that the form of dem
ocracy is there, but not the reality or substance of it because of the increasin
gly elitist approach of their representatives to the country's problem.
Whereupon, Mr. Escudero pointed out that the Constitution has provided a means w
hereby the people can exercise the reserved power of initiative to propose amend
ments to the Constitution, and requested that Sections 1 and 32, Article VI; Sec
tion 3, Article X; and Section 2, Article XVII of the Constitution be made part
of his sponsorship remarks.
Mr. Escudero also stressed that an implementing law is needed for the aforecited
Constitutional provisions. While the enactment of the Bill will give way to str
ong competition among cause-oriented and sectoral groups, he continued, it will
hasten the politization of the citizenry, aid the government in forming an enlig
htened public opinion, and produce more responsive legislation. The passage of t
he Bill will also give street parliamentarians the opportunity to articulate the
ir ideas in a democratic forum, he added.
Mr. Escudero stated that he and Mr. Roco hoped for the early approval of the Bil
l so that it can be initially used for the Agrarian Reform Law. He said that the
passage of House Bill No. 21505 will show that the Members can set aside their
personal and political consideration for the greater good of the people.
The disagreeing provisions in Senate Bill No. 17 and House Bill No. 21505 were t
hreshed out in a Bicameral Conference Committee. 8 In the meeting of the Committ
ee on June 6, 1989, 9 the members agreed that the two (2) bills should be consol
idated and that the consolidated version should include people's initiative to a
mend the Constitution as contemplated by House Bill No. 21505. The transcript of
the meeting states:
xxx xxx xxx
CHAIRMAN GONZALES. But at any rate, as I have said, because this is new in
our political system, the Senate decided on a more cautious approach and limitin
g it only to the local government units because even with that stage where . . .
at least this has been quite popular, ano? It has been attempted on a national
basis. Alright. There has not been a single attempt. Now, so, kami limitado doon
. And, second, we consider also that it is only fair that the local legislative
body should be given a chance to adopt the legislation bill proposed, right? Iyo
ng sinasabing indirect system of initiative. If after all, the local legislative
assembly or body is willing to adopt it in full or in toto, there ought to be a
ny reason for initiative, ano for initiative. And, number 3, we feel that there
should be some limitation on the frequency with which it should be applied. Numb
er 4, na the people, thru initiative, cannot enact any ordinance that is beyond
the scope of authority of the local legislative body, otherwise, my God, mag-aas
sume sila ng power that is broader and greater than the grant of legislative pow
er to the Sanggunians. And Number 5, because of that, then a proposition which h
as been the result of a successful initiative can only carry the force and effec
t of an ordinance and therefore that should not deprive the court of its jurisdi
ction to declare it null and void for want of authority. Ha, di ba? I mean it is
beyond powers of local government units to enact. Iyon ang main essence namin,
so we concentrated on that. And that is why . . . so ang sa inyo naman includes
iyon sa Constitution, amendment to the Constitution eh . . . national laws. Sa a
min, if you insist on that, alright, although we feel na it will in effect becom
e a dead statute. Alright, and we can agree, we can agree. So ang mangyayari dit
o, and magiging basic nito, let us not discuss anymore kung alin and magiging ba
sic bill, ano, whether it is the Senate Bill or whether it is the House bill. Lo
gically it should be ours sapagkat una iyong sa amin eh. It is one of the first
bills approved by the Senate kaya ang number niyan, makikita mo, 17, eh. Huwag n
a nating pagusapan. Now, if you insist, really iyong features ng national at sak
a constitutional, okay. ____ gagawin na natin na consolidation of both bills.
HON. ROCO. Yes, we shall consolidate.
CHAIRMAN GONZALES. Consolidation of the Senate and House Bill No. so and so
. 10
When the consolidated bill was presented to the House for approval, then Congres
sman Roco upon interpellation by Congressman Rodolfo Albano, again confirmed tha
t it covered people's initiative to amend the Constitution. The record of the Ho
use Representative states: 11
xxx xxx xxx
THE SPEAKER PRO TEMPORE. The Gentleman from Camarines Sur is recognized.
MR. ROCO. On the Conference Committee Report on the disagreeing provisions
between Senate Bill No. 21505 which refers to the system providing for the init
iative and referendum, fundamentally, Mr. Speaker, we consolidated the Senate an
d the House versions, so both versions are totally intact in the bill. The Senat
ors ironically provided for local initiative and referendum and the House Repres
entatives correctly provided for initiative and referendum on the Constitution a
nd on national legislation.
I move that we approve the consolidated bill.
MR. ALBANO. Mr. Speaker.
THE SPEAKER PRO TEMPORE. What is the pleasure of the Minority Floor Leade
r?
MR. ALBANO. Will the distinguished sponsor answer just a few questions?
THE SPEAKER PRO TEMPORE. The Gentlemen will please proceed.
MR. ALBANO. I heard the sponsor say that the only difference in the two bill
s was that in the Senate version there was a provision for local initiative and
referendum, whereas the House version has none.
MR. ROCO. In fact, the Senate version provide purely for local initiative
and referendum, whereas in the House version, we provided purely for national an
d constitutional legislation.
MR. ALBANO. Is it our understanding therefore, that the two provisions were
incorporated?
MR. ROCO. Yes, Mr. Speaker.
MR. ALBANO. So that we will now have a complete initiative and referendum bo
th in the constitutional amendment and national legislation.
MR. ROCO. That is correct.
MR. ALBANO. And provincial as well as municipal resolutions?
MR. ROCO. Down to barangay, Mr. Speaker.
MR. ALBANO. And this initiative and referendum is in consonance with the pro
vision of the Constitution whereby it mandates this Congress to enact the enabli
ng law, so that we shall have a system which can be done every five years. Is it
five years in the provision of the Constitution?
MR. ROCO. That is correct, Mr. Speaker. For constitutional amendments in t
he 1987 Constitution, it is every five years.
MR. ALBANO. For every five years, Mr. Speaker?
MR. ROCO. Within five years, we cannot have multiple initiatives and refer
enda.
MR. ALBANO. Therefore, basically, there was no substantial difference betwee
n the two versions?
MR. ROCO. The gaps in our bill were filled by the Senate which, as I said
earlier, ironically was about local, provincial and municipal legislation.
MR. ALBANO. And the two bills were consolidated?
MR. ROCO. Yes, Mr. Speaker.
MR. ALBANO. Thank you, Mr. Speaker.
APPROVAL OF C.C.R.
ON S.B. NO. 17 AND H.B. NO. 21505
(The Initiative and Referendum Act)
THE SPEAKER PRO TEMPORE. There was a motion to approve this consolidated
bill on Senate Bill No. 17 and House Bill No. 21505.
Is there any objection? (Silence. The Chair hears none; the motion is approved.
Since it is crystalline that the intent of R.A. No. 6735 is to implement the peo
ple's initiative to amend the Constitution, it is our bounden duty to interpret
the law as it was intended by the legislature. We have ruled that once intent is
ascertained, it must be enforced even if it may not be consistent with the stri
ct letter of the law and this ruling is as old as the mountain. We have also hel
d that where a law is susceptible of more than one interpretation, that interpre
tation which will most tend to effectuate the manifest intent of the legislature
will be adopted. 12
The text of R.A. No. 6735 should therefore be reasonably construed to effectuate
its intent to implement the people's initiative to amend the Constitution. To b
e sure, we need not torture the text of said law to reach the conclusion that it
implements people's initiative to amend the Constitution. R.A. No. 6735 is repl
ete with references to this prerogative of the people.
First, the policy statement declares:
Sec. 2. Statement of Policy. ? The power of the people under a system of initiat
ive and referendum to directly propose, enact, approve or reject, in whole or in
part, the Constitution, laws, ordinances, or resolutions passed by any legislat
ive body upon compliance with the requirements of this Act is hereby affirmed, r
ecognized and guaranteed. (emphasis supplied)
Second, the law defines "initiative" as "the power of the people to propose amen
dments to the constitution or to propose and enact legislations through an elect
ion called for the purpose," and "plebiscite" as "the electoral process by which
an initiative on the Constitution is approved or rejected by the people.
Third, the law provides the requirements for a petition for initiative to amend
the Constitution. Section 5(b) states that "(a) petition for an initiative on th
e 1987 Constitution must have at least twelve per centum (12%) of the total numb
er of registered voters as signatories, of which every legislative district must
be represented by at least three per centum (3%) of the registered voters there
in." It also states that "(i)nitiative on the Constitution may be exercised only
after five (5) years from the ratification of the 1987 Constitution and only on
ce every five (5) years thereafter.
Finally, R.A. No. 6735 fixes the effectivity date of the amendment. Section 9(b)
states that "(t)he proposition in an initiative on the Constitution approved by
a majority of the votes cast in the plebiscite shall become effective as to the
day of the plebiscite.
It is unfortunate that the majority decision resorts to a strained interpretatio
n of R.A. No. 6735 to defeat its intent which it itself concedes is to implement
people's initiative to propose amendments to the Constitution. Thus, it laments
that the word "Constitution" is neither germane nor relevant to the policy thru
st of section 2 and that the statute's subtitling is not accurate. These lapses
are to be expected for laws are not always written in impeccable English. Rightl
y, the Constitution does not require our legislators to be word-smiths with the
ability to write bills with poetic commas like Jose Garcia Villa or in lyrical p
rose like Winston Churchill. But it has always been our good policy not to refus
e to effectuate the intent of a law on the ground that it is badly written. As t
he distinguished Vicente Francisco 13 reminds us: "Many laws contain words which
have not been used accurately. But the use of inapt or inaccurate language or w
ords, will not vitiate the statute if the legislative intention can be ascertain
ed. The same is equally true with reference to awkward, slovenly, or ungrammatic
al expressions, that is, such expressions and words will be construed as carryin
g the meaning the legislature intended that they bear, although such a construct
ion necessitates a departure from the literal meaning of the words used.
In the same vein, the argument that R.A. No. 7535 does not include people's init
iative to amend the Constitution simply because it lacks a sub-title on the subj
ect should be given the weight of helium. Again, the hoary rule in statutory con
struction is that headings prefixed to titles, chapters and sections of a statut
e may be consulted in aid of interpretation, but inferences drawn therefrom are
entitled to very little weight, and they can never control the plain terms of th
e enacting clauses. 14
All said, it is difficult to agree with the majority decision that refuses to en
force the manifest intent or spirit of R.A. No. 6735 to implement the people's i
nitiative to amend the Constitution. It blatantly disregards the rule cast in co
ncrete that the letter of the law must yield to its spirit for the letter of the
law is its body but its spirit is its soul. 15
II
COMELEC Resolution No. 2300, 16 promulgated under the stewardship of Commissione
r Haydee Yorac, then its Acting Chairman, spelled out the procedure on how to ex
ercise the people's initiative to amend the Constitution. This is in accord with
the delegated power granted by section 20 of R.A. No. 6735 to the COMELEC which
expressly states: "The Commission is hereby empowered to promulgate such rules
and regulations as may be necessary to carry out the purposes of this Act." By n
o means can this delegation of power be assailed as infirmed. In the benchmark c
ase of Pelaez v. Auditor General, 17 this Court, thru former Chief Justice Rober
to Concepcion laid down the test to determine whether there is undue delegation
of legislative power, viz:
xxx xxx xxx
Although Congress may delegate to another branch of the Government the power to
fill details in the execution, enforcement or administration of a law, it is ess
ential, to forestall a violation of the principle of separation of powers, that
said law: (a) be complete in itself ? it must set forth therein the policy to be
executed, carried out or implemented by the delegate ? and (b) to fix standard
? the limits of which are sufficiently determinate or determinable ? to which th
e delegate must conform in the performance of his functions. Indeed, without a s
tatutory declaration of policy, which is the essence of every law, and, without
the aforementioned standard, there would be no means to determine, with reasonab
le certainty, whether the delegate has acted within or beyond the scope of his a
uthority. Hence, he could thereby arrogate upon himself the power, not only to m
ake the law, but, also ? and this is worse ? to unmake it, by adopting measures
inconsistent with the end sought to be attained by the Act of Congress, thus nul
lifying the principle of separation of powers and the system of checks and balan
ces, and, consequently, undermining the very foundation of our republican system
.
Section 68 of the Revised Administrative Code does not meet these well-settled r
equirements for a valid delegation of the power to fix the details in the enforc
ement of a law. It does not enunciate any policy to be carried out or implemente
d by the President. Neither does it give a standard sufficiently precise to avoi
d the evil effects above referred to.
R.A. No. 6735 sufficiently states the policy and the standards to guide the COME
LEC in promulgating the law's implementing rules and regulations of the law. As
aforestated, section 2 spells out the policy of the law; viz: "The power of the
people under a system of initiative and referendum to directly propose, enact, a
pprove or reject, in whole or in part, the Constitution, laws, ordinances, or re
solutions passed by any legislative body upon compliance with the requirements o
f this Act is hereby affirmed, recognized and guaranteed." Spread out all over R
.A. No. 6735 are the standards to canalize the delegated power to the COMELEC to
promulgate rules and regulations from overflowing. Thus, the law states the num
ber of signatures necessary to start a people's initiative, 18 directs how initi
ative proceeding is commenced, 19 what the COMELEC should do upon filing of the
petition for initiative, 20 how a proposition is approved, 21 when a plebiscite
may be held, 22 when the amendment takes effect 23 and what matters may not be t
he subject of any initiative. 24 By any measure, these standards are adequate.
Former Justice Isagani A. Cruz, similarly elucidated that "a sufficient standard
is intended to map out the boundaries of the delegates' authority by defining t
he legislative policy and indicating the circumstances under which it is to be p
ursued and effected. The purpose of the sufficient standard is to prevent a tota
l transference of legislative power from the lawmaking body to the delegate." 25
In enacting R.A. No. 6735, it cannot be said that Congress totally transferred
its power to enact the law implementing people's initiative to COMELEC. A close
look at COMELEC Resolution No. 2300 will show that it merely provided the proced
ure to effectuate the policy of R.A. No. 6735 giving life to the people's initia
tive to amend the Constitution. The debates 26 in the Constitutional Commission
make it clear that the rules of procedure to enforce the people's initiative can
be delegated, thus:
MR. ROMULO. Under Commissioner Davide's amendment, it is possible for the le
gislature to set forth certain procedures to carry out the initiative. . . ?
MR. DAVIDE. It can.
xxx xxx xxx
MR. ROMULO. But the Commissioner's amendment does not prevent the legislatur
e from asking another body to set the proposition in proper form.
MR. DAVIDE. The Commissioner is correct. In other words, the implementation
of this particular right would be subject to legislation, provided the legislatu
re cannot determine anymore the percentage of the requirement.
MR. DAVIDE. As long as it will not destroy the substantive right to initiate
. In other words, none of the procedures to be proposed by the legislative body
must diminish or impair the right conceded here.
MR. ROMULO. In that provision of the Constitution can the procedures which I
have discussed be legislated?
MR. DAVIDE. Yes.
In his book, The Intent of the 1986 Constitution Writers, 27 Father Bernas likew
ise affirmed: "In response to questions of Commissioner Romulo, Davide explained
the extent of the power of the legislature over the process: it could for insta
nce, prescribe the 'proper form before (the amendment) is submitted to the peopl
e,' it could authorize another body to check the proper form. It could also auth
orize the COMELEC, for instance, to check the authenticity of the signatures of
petitioners. Davide concluded: 'As long as it will not destroy the substantive r
ight to initiate. In other words, none of the procedures to be proposed by the l
egislative body must diminish or impair the right conceded here.'" Quite clearly
, the prohibition against the legislature is to impair the substantive right of
the people to initiate amendments to the Constitution. It is not, however, prohi
bited from legislating the procedure to enforce the people's right of initiative
or to delegate it to another body like the COMELEC with proper standard.
A survey of our case law will show that this Court has prudentially refrained fr
om invalidating administrative rules on the ground of lack of adequate legislati
ve standard to guide their promulgation. As aptly perceived by former Justice Cr
uz, "even if the law itself does not expressly pinpoint the standard, the courts
will bend backward to locate the same elsewhere in order to spare the statute,
if it can, from constitutional infirmity." 28 He cited the ruling in Hirabayashi
v. United States, 29 viz:
xxx xxx xxx
It is true that the Act does not in terms establish a particular standard to whi
ch orders of the military commander are to conform, or require findings to be ma
de as a prerequisite to any order. But the Executive Order, the Proclamations an
d the statute are not to be read in isolation from each other. They were parts o
f a single program and must be judged as such. The Act of March 21, 1942, was an
adoption by Congress of the Executive Order and of the Proclamations. The Procl
amations themselves followed a standard authorized by the Executive Order ? the
necessity of protecting military resources in the designated areas against espio
nage and sabotage.
In the case at bar, the policy and the standards are bright-lined in R.A. No. 67
35. A 20-20 look at the law cannot miss them. They were not written by our legis
lators in invisible ink. The policy and standards can also be found in no less t
han section 2, Article XVII of the Constitution on Amendments or Revisions. Ther
e is thus no reason to hold that the standards provided for in R.A. No. 6735 are
insufficient for in other cases we have upheld as adequate more general standar
ds such as "simplicity and dignity," 30 "public interest," 31 "public welfare,"
32 "interest of law and order," 33 "justice and equity," 34 "adequate and effici
ent instruction," 35 "public safety," 36 "public policy", 37 "greater national i
nterest", 38 "protect the local consumer by stabilizing and subsidizing domestic
pump rates", 39 and "promote simplicity, economy and efficiency in government."
40 A due regard and respect to the legislature, a co-equal and coordinate branc
h of government, should counsel this Court to refrain from refusing to effectuat
e laws unless they are clearly unconstitutional.
III
It is also respectfully submitted that the petition should he dismissed with res
pect to the Pedrosas. The inclusion of the Pedrosas in the petition is utterly b
aseless. The records show that the case at bar started when respondent Delfin al
one and by himself filed with the COMELEC a Petition to Amend the Constitution t
o Lift Term Limits of Elective Officials by People's Initiative. The Pedrosas di
d not join the petition. It was Senator Roco who moved to intervene and was allo
wed to do so by the COMELEC. The petition was heard and before the COMELEC could
resolve the Delfin petition, the case at bar was filed by the petitioners with
this Court. Petitioners sued the COMELEC. Jesus Delfin, Alberto Pedrosa and Carm
en Pedrosa in their capacities as founding members of the People's Initiative fo
r Reform, Modernization and Action (PIRMA). The suit is an original action for p
rohibition with prayer for temporary restraining order and/or writ of preliminar
y injunction.
The petition on its face states no cause of action against the Pedrosas. The onl
y allegation against the Pedrosas is that they are founding members of the PIRMA
which proposes to undertake the signature drive for people's initiative to amen
d the Constitution. Strangely, the PIRMA itself as an organization was not imple
aded as a respondent. Petitioners then prayed that we order the Pedrosas ". . .
to desist from conducting a signature drive for a people's initiative to amend t
he Constitution." On December 19, 1996, we temporarily enjoined the Pedrosas ".
. . from conducting a signature drive for people's initiative to amend the Const
itution." It is not enough for the majority to lift the temporary restraining or
der against the Pedrosas. It should dismiss the petition and all motions for con
tempt against them without equivocation.
One need not draw a picture to impart the proposition that in soliciting signatu
res to start a people's initiative to amend the Constitution the Pedrosas are no
t engaged in any criminal act. Their solicitation of signatures is a right guara
nteed in black and white by section 2 of Article XVII of the Constitution which
provides that ". . . amendments to this Constitution may likewise be directly pr
oposed by the people through initiative. . ." This right springs from the princi
ple proclaimed in section 1, Article II of the Constitution that in a democratic
and republican state "sovereignty resides in the people and all government auth
ority emanates from them." The Pedrosas are part of the people and their voice i
s part of the voice of the people. They may constitute but a particle of our sov
ereignty but no power can trivialize them for sovereignty is indivisible.
But this is not all. Section 16 of Article XIII of the Constitution provides: "T
he right of the people and their organizations to effective and reasonable parti
cipation at all levels of social, political and economic decision-making shall n
ot be abridged. The State shall by law, facilitate the establishment of adequate
consultation mechanisms." This is another novel provision of the 1987 Constitut
ion strengthening the sinews of the sovereignty of our people. In soliciting sig
natures to amend the Constitution, the Pedrosas are participating in the politic
al decision-making process of our people. The Constitution says their right cann
ot be abridged without any ifs and buts. We cannot put a question mark on their
right.
Over and above these new provisions, the Pedrosas' campaign to amend the Constit
ution is an exercise of their freedom of speech and expression and their right t
o petition the government for redress of grievances. We have memorialized this u
niversal right in all our fundamental laws from the Malolos Constitution to the
1987 Constitution. We have iterated and reiterated in our rulings that freedom o
f speech is a preferred right, the matrix of other important rights of our peopl
e. Undeniably, freedom of speech enervates the essence of the democratic creed o
f think and let think. For this reason, the Constitution encourages speech even
if it protects the speechless.
It is thus evident that the right of the Pedrosas to solicit signatures to start
a people's initiative to amend the Constitution does not depend on any law, muc
h less on R.A. 6735 or COMELEC Resolution No. 2300. No law, no Constitution can
chain the people to an undesirable status quo. To be sure, there are no irrepeal
able laws just as there are no irrepealable Constitutions. Change is the predica
te of progress and we should not fear change. Mankind has long recognized the tr
uism that the only constant in life is change and so should the majority.
IV
In a stream of cases, this Court has rhapsodized people power as expanded in the
1987 Constitution. On October 5, 1993, we observed that people's might is no lo
nger a myth but an article of faith in our Constitution. 41 On September 30, 199
4, we postulated that people power can be trusted to check excesses of governmen
t and that any effort to trivialize the effectiveness of people's initiatives ou
ght to be rejected. 42 On September 26, 1996, we pledged that ". . . this Court
as a matter of policy and doctrine will exert every effort to nurture, protect a
nd promote their legitimate exercise." 43 Just a few days ago, or on March 11, 1
997, by a unanimous decision, 44 we allowed a recall election in Caloocan City i
nvolving the mayor and ordered that he submits his right to continue in office t
o the judgment of the tribunal of the people. Thus far, we have succeeded in tra
nsforming people power from an opaque abstraction to a robust reality. The Const
itution calls us to encourage people empowerment to blossom in full. The Court c
annot halt any and all signature campaigns to amend the Constitution without set
ting back the flowering of people empowerment. More important, the Court cannot
seal the lips of people who are pro-change but not those who are anti-change wit
hout concerting the debate on charter change into a sterile talkaton. Democracy
is enlivened by a dialogue and not by a monologue for in a democracy nobody can
claim any infallibility.
Melo and Mendoza, JJ., concur.

VITUG, J., concurring and dissenting:
The COMELEC should have dismissed, outrightly, the Delfin Petition.
It does seem to me that there is no real exigency on the part of the Court to en
gross, let alone to commit, itself on all the issues raised and debated upon by
the parties. What is essential at this time would only be to resolve whether or
not the petition filed with the COMELEC, signed by Atty. Jesus S. Delfin in his
capacity as a "founding member of the Movement for People's Initiative" and seek
ing through a people initiative certain modifications on the 1987 Constitution,
can properly be regarded and given its due course. The Constitution, relative to
any proposed amendment under this method, is explicit. Section 2, Article XVII,
thereof 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 r
epresented by at least three per centum of the registered voters therein. No ame
ndment under this section shall be authorized within five years following the ra
tification of this Constitution nor oftener than once every five years thereafte
r.
The Congress shall provide for the implementation of the exercise of this right.
The Delfin petition is thus utterly deficient. Instead of complying with the con
stitutional imperatives, the petition would rather have much of its burden passe
d on, in effect, to the COMELEC. The petition would require COMELEC to schedule
"signature gathering all over the country," to cause the necessary publication o
f the petition "in newspapers of general and local circulation," and to instruct
"Municipal Election Registrars in all Regions of the Philippines to assist peti
tioners and volunteers in establishing signing stations at the time and on the d
ates designated for the purpose.
I submit, even then, that the TRO earlier issued by the Court which, consequenti
ally, is made permanent under the ponencia should be held to cover only the Delf
in petition and must not be so understood as having intended or contemplated to
embrace the signature drive of the Pedrosas. The grant of such a right is clearl
y implicit in the constitutional mandate on people initiative.
The distinct greatness of a democratic society is that those who reign are the g
overned themselves. The postulate is no longer lightly taken as just a perceived
myth but a veritable reality. The past has taught us that the vitality of gover
nment lies not so much in the strength of those who lead as in the consent of th
ose who are led. The role of free speech is pivotal but it can only have its tru
e meaning if it comes with the correlative end of being heard.
Pending a petition for a people's initiative that is sufficient in form and subs
tance, it behooves the Court, I most respectfully submit, to yet refrain from re
solving the question of whether or not Republic Act No. 6735 has effectively and
sufficiently implemented the Constitutional provision on right of the people to
directly propose constitutional amendments. Any opinion or view formulated by t
he Court at this point would at best be only a non-binding, albeit possibly pers
uasive, obiter dictum.
I vote for granting the instant petition before the Court and for clarifying tha
t the TRO earlier issued by the Court did not prescribe the exercise by the Pedr
osas of their right to campaign for constitutional amendments.

FRANCISCO, J., dissenting and concurring:
There is no question that my esteemed colleague Mr. Justice Davide has prepared
a scholarly and well-written ponencia. Nonetheless, I cannot fully subscribe to
his view that R. A. No. 6735 is inadequate to cover the system of initiative on
amendments to the Constitution.
To begin with, sovereignty under the constitution, resides in the people and all
government authority emanates from them. 1 Unlike our previous constitutions, t
he present 1987 Constitution has given more significance to this declaration of
principle for the people are now vested with power not only to propose, enact or
reject any act or law passed by Congress or by the local legislative body, but
to propose amendments to the constitution as well. 2 To implement these constitu
tional edicts, Congress in 1989 enacted Republic Act No. 6735, otherwise known a
s "The initiative and Referendum Act". This law, to my mind, amply covers an ini
tiative on the constitution. The contrary view maintained by petitioners is base
d principally on the alleged lack of sub-title in the law on initiative to amend
the constitution and on their allegation that:
Republic Act No. 6735 provides for the effectivity of the law after publication
in print media. [And] [t]his indicates that Republic Act No. 6735 covers only la
ws and not constitutional amendments, because constitutional amendments take eff
ect upon ratification not after publication. 3
which allegation manifests petitioners' selective interpretation of the law, for
under Section 9 of Republic Act No. 6735 on the Effectivity of Initiative or Re
ferendum Proposition paragraph (b) thereof is clear in providing that:
The proposition in an initiative on the constitution approved by a majority of t
he votes cast in the plebiscite shall become effective as to the day of the pleb
iscite.
It is a rule that every part of the statute must be interpreted with reference t
he context, i.e., that every part of the statute must be construed together with
the other parts and kept subservient to the general intent of the whole enactme
nt. 4 Thus, the provisions of Republic Act No. 6735 may not be interpreted in is
olation. The legislative intent behind every law is to be extracted from the sta
tute as a whole. 5
In its definition of terms, Republic Act No. 6735 defines initiative as "the pow
er of the people to propose amendments to the constitution or to propose and ena
ct legislations through an election called for the purpose". 6 The same section,
in enumerating the three systems of initiative, included an "initiative on the
constitution which refers to a petition proposing amendments to the constitution
" 7 Paragraph (e) again of Section 3 defines "plebiscite" as "the electoral proc
ess by which an initiative on the constitution is approved or rejected by the pe
ople" And as to the material requirements for an initiative on the Constitution,
Section 5(b) distinctly enumerates the following:
A petition for an initiative on the 1987 Constitution must have at least twelve
per centum (12%) of the total number of the registered voters as signatories, of
which every legislative district must be represented by at least three per cent
um (3%) of the registered voters therein. Initiative on the constitution may be
exercised only after five (5) years from the ratification of the 1987 Constituti
on and only once every five years thereafter.
These provisions were inserted, on purpose, by Congress the intent being to prov
ide for the implementation of the right to propose an amendment to the Constitut
ion by way of initiative. "A legal provision", the Court has previously said, "m
ust not be construed as to be a useless surplusage, and accordingly, meaningless
, in the sense of adding nothing to the law or having no effect whatsoever there
on". 8 That this is the legislative intent is further shown by the deliberations
in Congress, thus:
. . . More significantly, in the course of the consideration of the Conference C
ommittee Report on the disagreeing provisions of Senate Bill No. 17 and House Bi
ll No. 21505, it was noted:
MR. ROCO. On the Conference Committee Report on the disagreeing provisions
between Senate Bill No. 17 and the consolidated House Bill No. 21505 which refe
rs to the system providing for the initiative and referendum, fundamentally, Mr.
Speaker, we consolidated the Senate and the House versions, so both versions ar
e totally intact in the bill. The Senators ironically provided for local initiat
ive and referendum and the House of Representatives correctly provided for initi
ative and referendum an the Constitution and on national legislation.
I move that we approve the consolidated bill.
MR. ALBANO, Mr. Speaker.
THE SPEAKER PRO TEMPORE. What is the pleasure of the Minority Floor Leade
r?
MR. ALBANO. Will the distinguished sponsor answer just a few questions?
THE SPEAKER PRO TEMPORE. What does the sponsor say?
MR. ROCO. Willingly, Mr. Speaker.
THE SPEAKER PRO TEMPORE. The Gentleman will please proceed.
MR. ALBANO. I heard the sponsor say that the only difference in the two bill
s was that in the Senate version there was a provision for local initiative and
referendum, whereas the House version has none.
MR. ROCO. In fact, the Senate version provided purely for local initiative
and referendum, whereas in the House version, we provided purely for national a
nd constitutional legislation.
MR. ALBANO. Is it our understanding, therefore, that the two provisions were
incorporated?
MR. ROCO. Yes, Mr. Speaker.
MR. ALBANO. So that we will now have a complete initiative and referendum bo
th in the constitutional amendment and national legislation.
MR. ROCO. That is correct.
MR. ALBANO. And provincial as well as municipal resolutions?
MR. ROCO. Down to barangay, Mr. Speaker.
MR. ALBANO. And this initiative and referendum is in consonance with the pro
vision of the Constitution to enact the enabling law, so that we shall have a sy
stem which can be done every five years. Is it five years in the provision of th
e Constitution?
MR. ROCO. That is correct, Mr. Speaker. For constitutional amendments to t
he 1987 Constitution, it is every five years." (Id. [Journal and Record of the H
ouse of Representatives], Vol. VIII, 8 June 1989, p. 960; quoted in Garcia v. Co
melec, 237 SCRA 279, 292-293 [1994]; emphasis supplied)
. . . The Senate version of the Bill may not have comprehended initiatives on th
e Constitution. When consolidated, though, with the House version of the Bill an
d as approved and enacted into law, the proposal included initiative on both the
Constitution and ordinary laws. 9
Clearly then, Republic Act No. 6735 covers an initiative on the constitution. An
y other construction as what petitioners foist upon the Court constitute a betra
yal of the intent and spirit behind the enactment.
At any rate, I agree with the ponencia that the Commission on Elections, at pres
ent, cannot take any action (such as those contained in the Commission's orders
dated December 6, 9, and 12, 1996 [Annexes B, C and B-1]) indicative of its havi
ng already assumed jurisdiction over private respondents' petition. This is so b
ecause from the tenor of Section 5 (b) of R.A. No. 6735 it would appear that pro
of of procurement of the required percentage of registered voters at the time th
e petition for initiative is filed, is a jurisdictional requirement.
Thus:
A petition for an initiative on the 1987 Constitution must have at least twelve
per centum (12%) of the total number of registered voters as signatories, of whi
ch every legislative district must be represented by at least three per centum (
3%) of the registered voters therein. Initiative on the Constitution may be exer
cised only after five (5) years from the ratification of the 1987 Constitution a
nd only once every five (5) years thereafter.
Here private respondents' petition is unaccompanied by the required signatures.
This defect notwithstanding, it is without prejudice to the refiling of their pe
tition once compliance with the required percentage is satisfactorily shown by p
rivate respondents. In the absence, therefore, of an appropriate petition before
the Commission on Elections, any determination of whether private respondents'
proposal constitutes an amendment or revision is premature.
ACCORDINGLY, I take exception to the conclusion reached in the ponencia that R.A
. No. 6735 is an "inadequate" legislation to cover a people's initiative to prop
ose amendments to the Constitution. I, however, register my concurrence with the
dismissal, in the meantime, of private respondents' petition for initiative bef
ore public respondent Commission on Elections until the same be supported by pro
of of strict compliance with Section 5 (b) of R.A. No. 6735.
Melo and Mendoza, JJ., concur.

PANGANIBAN, J., concurring and dissenting:
Our distinguished colleague, Mr. Justice Hilario G. Davide Jr., writing for the
majority, holds that:
(1) The Comelec acted without jurisdiction or with grave abuse of discretion
in entertaining the "initiatory" Delfin Petition.
(2) While the Constitution allows amendments to "be directly proposed by the
people through initiative," there is no implementing law for the purpose. RA 67
35 is "incomplete, inadequate, or wanting in essential terms and conditions inso
far as initiative on amendments to the Constitution is concerned."
(3) Comelec Resolution No. 2330, "insofar as it prescribes rules and regulat
ions on the conduct of initiative on amendments to the Constitution, is void."
I concur with the first item above. Until and unless an initiatory petition can
show the required number of signatures ? in this case, 12% of all the registered
voters in the Philippines with at least 3% in every legislative district ? no p
ublic funds may be spent and no government resources may be used in an initiativ
e to amend the Constitution. Verily, the Comelec cannot even entertain any petit
ion absent such signatures. However, I dissent most respectfully from the majori
ty's two other rulings. Let me explain.
Under the above restrictive holdings espoused by the Court's majority, the Const
itution cannot be amended at all through a people's initiative. Not by Delfin, n
ot by Pirma, not by anyone, not even by all the voters of the country acting tog
ether. This decision will effectively but unnecessarily curtail, nullify, abroga
te and render inutile the people's right to change the basic law. At the very le
ast, the majority holds the right hostage to congressional discretion on whether
to pass a new law to implement it, when there is already one existing at presen
t. This right to amend through initiative, it bears stressing, is guaranteed by
Section 2, Article XVII of the Constitution, as follows:
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 r
epresented by at least three per centum of the registered voters therein. No ame
ndment under this section shall be authorized within five years following the ra
tification of this Constitution nor oftener than once every five years thereafte
r.
With all due respect, I find the majority's position all too sweeping and all to
o extremist. It is equivalent to burning the whole house to exterminate the rats
, and to killing the patient to relieve him of pain. What Citizen Delfin wants t
he Comelec to do we should reject. But we should not thereby preempt any future
effort to exercise the right of initiative correctly and judiciously. The fact t
hat the Delfin Petition proposes a misuse of initiative does not justify a ban a
gainst its proper use. Indeed, there is a right way to do the right thing at the
right time and for the right reason.
Taken Together and Interpreted Properly, the Constitution, RA 6735 and Comelec R
esolution 2300 Are Sufficient to Implement Constitutional Initiatives
While RA 6735 may not be a perfect law, it was ? as the majority openly concedes
? intended by the legislature to cover and, I respectfully submit, it contains
enough provisions to effectuate an initiative on the Constitution. 1 I completel
y agree with the inspired and inspiring opinions of Mr. Justice Reynato S. Puno
and Mr. Justice Ricardo J. Francisco that RA 6735, the Roco law on initiative, s
ufficiently implements the right of the people to initiate amendments to the Con
stitution. Such views, which I shall no longer repeat nor elaborate on, are thor
oughly consistent with this Court's unanimous en banc rulings in Subic Bay Metro
politan Authority vs. Commission on Elections, 2 that "provisions for initiative
. . . are (to be) liberally construed to effectuate their purposes, to facilita
te and not hamper the exercise by the voters of the rights granted thereby"; and
in Garcia vs. Comelec, 3 that any "effort to trivialize the effectiveness of pe
ople's initiatives ought to be rejected."
No law can completely and absolutely cover all administrative details. In recogn
ition of this, RA 6735 wisely empowered 4 the Commission on Election "to promulg
ate such rules and regulations as may be necessary to carry out the purposes of
this Act." And pursuant thereto, the Comelec issued its Resolution 2300 on 16 Ja
nuary 1991. Such Resolution, by its very words, was promulgated "to govern the c
onduct of initiative on the Constitution and initiative and referendum on nation
al and local laws," not by the incumbent Commission on Elections but by one then
composed of Acting Chairperson Haydee B. Yorac, Comms. Alfredo E. Abueg Jr., Le
opoldo L. Africa, Andres R. Flores, Dario C. Rama and Magdara B. Dimaampao. All
of these Commissioners who signed Resolution 2300 have retired from the Commissi
on, and thus we cannot ascribe any vile motive unto them, other than an honest,
sincere and exemplary effort to give life to a cherished right of our people.
The majority argues that while Resolution 2300 is valid in regard to national la
ws and local legislations, it is void in reference to constitutional amendments.
There is no basis for such differentiation. The source of and authority for the
Resolution is the same law, RA 6735.
I respectfully submit that taken together and interpreted properly and liberally
, the Constitution (particularly Art. XVII, Sec. 2), R4 6735 and Comelec Resolut
ion 2300 provide more than sufficient authority to implement, effectuate and rea
lize our people's power to amend the Constitution.
Petitioner Delfin and the Pedrosa
Spouses Should Not Be Muzzled
I am glad the majority decided to heed our plea to lift the temporary restrainin
g order issued by this Court on 18 December 1996 insofar as it prohibited Petiti
oner Delfin and the Spouses Pedrosa from exercising their right of initiative. I
n fact, I believe that such restraining order as against private respondents sho
uld not have been issued, in the first place. While I agree that the Comelec sho
uld be stopped from using public funds and government resources to help them gat
her signatures, I firmly believe that this Court has no power to restrain them f
rom exercising their right of initiative. The right to propose amendments to the
Constitution is really a species of the right of free speech and free assembly.
And certainly, it would be tyrannical and despotic to stop anyone from speaking
freely and persuading others to conform to his/her beliefs. As the eminent Volt
aire once said, "I may disagree with what you say, but I will defend to the deat
h your right to say it." After all, freedom is not really for the thought we agr
ee with, but as Justice Holmes wrote, "freedom for the thought that we hate." 5
Epilogue
By way of epilogue, let me stress the guiding tenet of my Separate Opinion. Init
iative, like referendum and recall, is a new and treasured feature of the Filipi
no constitutional system. All three are institutionalized legacies of the world-
admired EDSA people power. Like elections and plebiscites, they are hallowed exp
ressions of popular sovereignty. They are sacred democratic rights of our people
to be used as their final weapons against political excesses, opportunism, inac
tion, oppression and misgovernance; as well as their reserved instruments to exa
ct transparency, accountability and faithfulness from their chosen leaders. Whil
e on the one hand, their misuse and abuse must be resolutely struck down, on the
other, their legitimate exercise should be carefully nurtured and zealously pro
tected.
WHEREFORE, I vote to GRANT the petition of Sen. Miriam D. Santiago et al. and to
DIRECT Respondent Commission on Elections to DISMISS the Delfin Petition on the
ground of prematurity, but not on the other grounds relied upon by the majority
. I also vote to LIFT the temporary restraining order issued on 18 December 1996
insofar as it prohibits Jesus Delfin, Alberto Pedrosa and Carmen Pedrosa from e
xercising their right to free speech in proposing amendments to the Constitution
.
Melo and Mendoza, JJ., concur.
Footnotes
1 Commissioner Blas Ople.
2 Commissioner Jose Suarez.
3 I Record of the Constitutional Commission, 371, 378.
4 Section 1, Article XV of the 1935 Constitution and Section 1(1), Article
XVI of the 1973 Constitution.
5 Annex "A" of Petition, Rollo, 15.
6 Later identified as the People's Initiative for Reforms, Modernization a
nd Action, or PIRMA for brevity.
7 These sections read:
Sec. 4. The term of office of the Senators shall be six years and shall commence
, unless otherwise provided by law, at noon on the thirtieth day of June next fo
llowing their election.
No Senator shall serve for more than two consecutive terms. Voluntary renunciati
on of the office for any length of time shall not be considered as an interrupti
on in the continuity of his service for the full term for which he was elected.
xxx xxx xxx
Sec. 7. The Members of the House of Representatives shall be elected for a term
of three years which shall begin, unless otherwise provided by law, at noon on t
he thirtieth day of June next following their election.
No Member of the House of Representatives shall serve for more than three consec
utive terms. Voluntary renunciation of the office for any length of time shall n
ot be considered as an interruption in the continuity of his service for the ful
l term for which he was elected.
8 The section reads:
Sec. 4. The President and the Vice-President shall be elected by direct vote of
the people for a term of six years which shall begin at noon on the thirtieth da
y of June next following the day of the election and shall end at noon of the sa
me date six years thereafter. The President shall not be eligible for any reelec
tion. No person who has succeeded as President and has served as such for more t
han four years shall be qualified for election to the same office at any time.
No Vice-President shall serve for more than two successive terms. Voluntary renu
nciation of the office for any length or time shall not be considered as an inte
rruption in the continuity of the service for the full term for which he was ele
cted.
9 The section reads:
Sec. 8. The term of office of elective local officials, except barangay official
s, which shall be determined by law, shall be three years and no such official s
hall serve for more than three consecutive terms. Voluntary renunciation of the
office for any length of time shall not be considered as an interruption in the
continuity of his service for the full term for which he was elected.
10 Rollo, 19.
11 Annex "B" of Petition, Rollo, 25.
12 Order of 12 December 1996, Annex "B-1" of Petition, Rollo, 27.
13 Id.
14 Citing Araneta v. Dinglasan, 84 Phil. 368 [1949]; Sanidad v. COMELEC, 73
SCRA 333 [1976].
15 Rollo, 68.
16 Rollo, 100.
17 Rollo, 130.
18 A Member of the 1986 Constitutional Commission.
19 Section 26, Article II, Constitution.
20 Citing Commissioner Ople of the Constitutional Commission, I Record of t
he Constitutional Commission, 405.
21 Rollo, 239.
22 Rollo, 304.
23 Rollo, 568.
24 These were submitted on the following dates:
(a) Private respondent Delfin ? 31 January 1997 (Rollo, 429);
(b) Private respondents Alberto and Carmen Pedrosa ? 10 February 1997 (Id.,
446);
(c) Petitioners ? 12 February 1997 (Id., 585);
(d) IBP ? 12 February 1997 (Id., 476);
(e) Senator Roco ? 12 February 1997 (Id., 606);
(f) DIK and MABINI ? 12 February 1997 (Id., 465);
(g) COMELEC ? 12 February 1997 (Id., 489);
(h) LABAN ? 13 February 1997 (Id., 553).
25 Rollo, 594.
26 Annex "D" of Roco's Motion for Intervention in this case, Rollo, 184.
27 Rollo, 28.
28 232 SCRA 110, 134 [1994].
29 II The Constitution of the Republic of the Philippines, A Commentary 571
[1988].
30 I Record of the Constitutional Commission 370-371.
31 Id., 371.
32 Id., 386.
33 Id., 391-392. (Emphasis supplied).
34 Id., 386.
35 Id., 392.
36 Id., 398-399.
37 Id., 399. Emphasis supplied.
38 Id., 402-403.
39 Id., 401-402.
40 Id., 410.
41 Id., 412.
42 II Record of the Constitutional Commission 559-560.
43 The Congress originally appeared as The National Assembly. The change ca
me about as a logical consequence of the amended Committee Report No. 22 of the
Committee on Legislative which changed The National Assembly to "The Congress of
the Philippines" in view of the approval of the amendment to adopt the bicamera
l system (II Record of the Constitutional Commission 102-105). The proposed new
Article on the Legislative Department was, after various amendments approved on
Second and Third Readings on 9 October 1986 (Id., 702-703)
44 V Record of the Constitutional Commission 806.
45 See footnote No. 42.
46 As Stated by Commissioner Bernas in his interpellation of Commissioner S
uarez, footnote 28.
47 Entitled "Initiative and Referendum Act of 1987," introduced by then Con
gressmen Raul Roco, Raul del Mar and Narciso Monfort.
48 Entitled "An Act Implementing the Constitutional Provisions on Initiativ
e and Referendum and for Other Purposes," introduced by Congressmen Salvador Esc
udero.
49 Entitled "An Act Providing for a System of Initiative and Referendum, an
d the Exceptions Therefrom, Whereby People in Local Government Units Can Directl
y Propose and Enact Resolutions and Ordinances or Approve or Reject Any Ordinanc
e or Resolution Passed By the Local Legislative Body," introduced by Senators Go
nzales, Romulo, Pimentel, Jr., and Lina, Jr.
50 IV Record of the Senate, No. 143, pp. 1509-1510.
51 VIII Journal and Record of the House of Representatives, 957-961.
52 That section reads:
Sec. 1. Statement of Policy. The power of the people under a system of initia
tive and referendum to directly propose and enact resolutions and ordinances or
approve or reject, in whole or in part, any ordinance or resolution passed by an
y local legislative body upon compliance with the requirements of this Act is he
reby affirmed, recognized and guaranteed.
53 It must be pointed out that Senate Bill No. 17 and House Bill No. 21505,
as approved on Third Reading, did not contain any subtitles.
54 If some confusion attended the preparation of the subtitles resulting in
the leaving out of the more important and paramount system of initiative on ame
ndments to the Constitution, it was because there was in the Bicameral Conferenc
e Committee an initial agreement for the Senate panel to draft that portion on l
ocal initiative and for the House of Representatives panel to draft that portion
covering national initiative and initiative on the Constitution; eventually, ho
wever, the Members thereof agreed to leave the drafting of the consolidated bill
to their staff. Thus:
CHAIRMAN GONZALES.
. . . All right, and we can agree, we can agree. So ang mangyayari dito, ang mag
iging basic nito, let us not discuss anymore kung alin ang magiging basic bill,
ano, whether it is the Senate Bill or whether it is the House Bill. Logically it
should be ours sapagkat una iyong sa amin, eh. It is one of the first bills app
roved by the Senate kaya ang number niyan, makikita mo, 17, eh. Huwag na nating
pag-usapan. Now, if you insist, really iyong features ng national at saka consti
tutional, okay. Pero gagawin na nating consolidation of both bills. (TSN, procee
dings of the Bicameral Conference Committee on 6 June 1989 submitted by Nora, R,
pp. 1-4 ? 1-5).
xxx xxx xxx
HON. ROCO. So how do we proceed from this? The staff will consolidate.
HON. GONZALES. Gumawa lang ng isang draft. Submit it to the Chairman, kami na a
ng bahalang magconsult sa aming mga members na kung okay,
HON. ROCO. Within today?
HON. GONZALES. Within today and early tomorrow. Hanggang Huwebes lang tayo, eh.
HON. AQUINO. Kinakailangang palusutin natin ito. Kung mabigyan tayo ng kopya
bukas and you are not objecting naman kayo naman ganoon din.
HON. ROCO. Editing na lang because on a physical consolidation nga ito, eh.
Yung mga provisions naman namin wala sa inyo. (TSN, proceedings of Bicameral Co
nference Committee of 6 June 1989, submitted by E.S. Bongon, pp. III-4 ? III-5).
55 Sec. 5(a & c), Sec. 8, Section 9(a).
56 Sections 13, 14, 15 and 16.
57 It would thus appear that the Senate's "cautious approach" in the implem
entation of the system of initiative as a mode of proposing amendments to the Co
nstitution, as expressed by Senator Gonzales in the course of his sponsorship of
Senate Bill No. 17 in the Bicameral Conference Committee meeting and in his spo
nsorship of the Committee's Report, might have insidiously haunted the preparati
on of the consolidated version of Senate Bill No. 17 and House Bill No. 21505. I
n the first he said:
Senate Bill No. 17 recognizes the initiatives and referendum are recent innovati
ons in our political system. And recognizing that, it has adopted a cautious app
roach by: first, allowing them only when the local legislative body had refused
to act; second, not more frequently than once a year; and, third, limiting them
to the national level. (I Record of the Senate, No. 33, p. 871).
xxx xxx xxx
First, as I have said Mr. President, and I am saying for the nth time, that we a
re introducing a novel and new system in politics. We have to adopt first a caut
ious approach. We feel it is prudent and wise at this point in time, to limit th
ose powers that may be the subject of initiatives and referendum to those exerci
sable or within the authority of the local government units. (Id., p. 880).
In the second he stated:
But at any rate, as I have said, because this is new in our political system, th
e Senate decided on a more cautious approach and limiting it only to the local g
eneral units. (TSN of the proceedings of the Bicameral Conference Committee on 6
June 1989, submitted by stenographer Nora R, pp. 1-2 to 1-3).
In the last he declared:
The initiatives and referendum are new tools of democracy; therefore, we have de
cided to be cautious in our approach. Hence, 1) we limited initiative and refere
ndum to the local government units; 2) that initiative can only be exercised if
the local legislative cannot be exercised more frequently that once every year.
(IV Records of the Senate, No. 143, pp. 15-9-1510).
58 Section 20, RA. No. 6735.
59 People v. Rosenthal, 68 Phil. 328 [1939]; ISAGANI A. CRUZ, Philippine Po
litical Law 86 [1996] (hereafter CRUZ).
60 People v. Vera, 65 Phil. 56 [1937]; CRUZ, supra, 87.
61 Pelaez v. Auditor General, 122 Phil. 965, 974 [1965].
62 Edu v. Ericta, 35 SCRA 481,497 [1970].
63 Sec. 7, COMELEC Resolution No. 2300.
64 Sec. 28, id.
65 Sec. 29, id.
66 Sec. 30, id.
PUNO, J., concurring and dissenting::
1 Agpalo, Statutory Construction, 1986 ed., p. 38, citing, inter alia, US
v. Tamparong 31 Phil. 321; Hernani v. Export Control Committee, 100 Phil. 973; P
eople v. Purisima, 86 SCRA 542.
2 Ibid, citing Torres v. Limjap, 56 Phil. 141.
3 Prepared and sponsored by the House Committee on Suffrage and Electoral
Reforms on the basis of H.B. No. 497 introduced by Congressmen Raul Roco, Raul d
el Mar and Narciso Monfort and H.B. No. 988 introduced by Congressman Salvador E
scudero.
4 Introduced by Senators Neptali Gonzales, Alberto Romulo, Aquilino Piment
el, Jr., and Jose Lina, Jr.
5 It was entitled "An Act Providing a System of Initiative and Referendum
and Appropriating Funds therefor.
6 Journal No. 85, February 14, 1989, p. 121.
7 Ibid.
8 The Senate Committee was chaired by Senator Neptali Gonzales with Senato
rs Agapito Aquino and John Osmena as members. The House Committee was chaired by
Congressman Magdaleno M. Palacol with Congressmen Raul Roco, Salvador H. Escude
ro III and Joaquin Chipeco, Jr., as members.
9 Held at Constancia Room, Ciudad Fernandina, Greenhills, San Juan, Metro
Manila.
10 See Compliance submitted by intervenor Roco dated January 28, 1997.
11 Record No. 137, June 8, 1989, pp. 960-961.
12 Agpalo, op cit., p. 38 citing US v. Toribio, 15 Phil 7 (1910); US v. Nav
arro, 19 Phil 134 (1911).
13 Francisco, Statutory Construction, 3rd ed., (1968) pp. 145-146 citing Cr
awford, Statutory Construction, pp. 337-338.
14 Black, Handbook on the Construction and Interpretation of the Laws (2nd
ed), pp. 258-259. See also Commissioner of Custom v. Relunia, 105 Phil 875 (1959
); People v. Yabut, 58 Phil 499 (1933).
15 Alcantara, Statutes, 1990 ed., p. 26 citing Dwarris on Statutes, p. 237.
16 Entitled In re: Rules and Regulations Governing the Conduct of Initiativ
e on the Constitution, and Initiative and Referendum on National and Local Laws
and promulgated on January 16, 1991 by the COMELEC with Commissioner Haydee B. Y
orac as Acting Chairperson and Commissioners Alfredo E. Abueg, Jr., Leopoldo L.
Africa, Andres R. Flores, Dario C. Rama and Magdara B. Dimaampao.
17 15 SCRA 569.
18 Sec. 5(b), R.A. No. 6735.
19 Sec. 5(b), R.A. No. 6735.
20 Sec. 7, R.A. No. 6735.
21 Sec. 9(b), R.A. No. 6735.
22 Sec. 8, R.A. No. 6735 in relation to Sec. 4, Art. XVII of the Constituti
on.
23 Sec. 9(b), R.A. No. 6735.
24 Sec. 10, R.A. No. 6735.
25 Cruz, Philippine Political Law, 1995 ed., p. 98.
26 See July 8, 1986 Debates of the Concom, p. 399.
27 1995 ed., p. 1207.
28 Cruz, op cit., p. 99.
29 320 US 99.
30 Balbuena v. Secretary of Education, 110 Phil 150 (1910).
31 People v. Rosenthal, 68 Phil 328 (1939).
32 Calalang v. Williams, 70 Phil 726 (1940).
33 Rubi v. Provincial Board of Mindoro, 39 Phil 669 (1919).
34 International Hardwood v. Pangil Federation of Labor, 70 Phil 602 (1940)
.
35 Phil. Association of Colleges and Universities v. Secretary of Education
, 97 Phil 806 (1955).
36 Edu v. Ericta, 35 SCRA 481 (1990); Agustin v. Edu, 88 SCRA 195 (1979).
37 Pepsi Cola Bottling Co. vs. Municipality of Tanawan Leyte, 69 SCRA 460 (
1976).
38 Maceda v. Macaraig, 197 SCRA 771 (1991).
39 Osmena v. Orbos, 220 SCRA 703 (1993).
40 Chiongbian v. Orbos, 245 SCRA 253 (1995).
41 Garcia v. COMELEC, et al., G.R. No. 111511, October 5, 1993.
42 Garcia, et al. v. COMELEC, et al., G.R. No. 111230, September 30, 1994.
43 Subic Bay Metropolitan Authority v. COMELEC, et al., G.R. No. 125416, Se
ptember 26, 1996.
44 Malonzo vs. COMELEC, et al., G.R. No. 127066, March 11, 1997.
FRANCISCO, J., concurring and dissenting:
1 Article II, Section 1, 1987 Constitution.
2 Article VI, Section 32, and Article XVII, Section 2, 1987 Constitution.
3 Petition, p. 5.
4 Paras v. Commission on Elections, G.R. No. 123619, December 4, 1996.
5 Tamayo v. Gsell, 35 Phil. 953, 980.
6 Section 3 (a), Republic Act No 6735.
7 Section 3(a) [a.1], Republic Act No 6735.
8 Uytengsu v. Republic, 95 Phil. 890, 893
9 Petition in Intervention filed by Sen. Raul Roco, pp. 15-16.
PANGANIBAN, J., concurring and dissenting:
1 Apart from its text on "national initiative" which could be used by anal
ogy, RA 6735 contains sufficient provisions covering initiative on the Constitut
ion, which are clear enough and speak for themselves, like:
Sec. 2. Statement of Policy. ? The power of the people under a system of initiat
ive and referendum to directly propose, enact, approve or reject, in whole or in
part, the Constitution, laws, ordinances, or resolution passed by any legislati
ve body upon compliance with the requirements of this Act is hereby affirmed, re
cognized and guaranteed.
Sec. 3. Definition of Terms. ? For purposes of this Act, the following terms sha
ll mean:
(a) "Initiative" is the power of the people to propose amendments to the Con
stitution or to propose and enact legislation's through an election called for t
he purpose.
There are three (3) systems of initiative, namely:
a.1 Initiative on the Constitution which refers to a petition proposing amen
dments to the Constitution;
a.2 Initiative on statutes which refers to a petition proposing to enact a n
ational legislation; and
a.3 Initiative on local legislation which refers to a petition proposing to
enact a regional, provincial, city, municipal, or barangay law, resolution or or
dinance.
xxx xxx xxx
(e) "Plebiscite" is the electoral process by which an initiative on the Cons
titution is approved or rejected by the people
(f) "Petition" is the written instrument containing the proposition and the
required number of signatories. It shall be in a form to be determined by and su
bmitted to the Commission on Elections, hereinafter referred to as the Commissio
n
xxx xxx xxx
Sec. 5 Requirements. ? . . .
(b) A petition for an initiative on the 1987 Constitution must have at least
twelve per centum (12 %) of the total number of registered voters as signatorie
s, of which every legislative district must be represented by at least three per
centum (3%) of the registered voters therein. Initiative on the Constitution ma
y be exercised only after five (5) years from the ratification of the 1987 Const
itution and only once every five (5) years thereafter.
Sec. 9. Effectivity of Initiative or Referendum Proposition. ?
xxx xxx xxx
(b) The proposition in an initiative on the Constitution approved by a major
ity of the votes cast in the plebiscite shall become effective as to the day of
the plebiscite.
xxx xxx xxx
(c) The petition shall state the following:
c.1 contents or text of the proposed law sought to be enacted, approved or r
ejected, amended or repealed, as the case may be;
c.2 the proposition;
c.3 the reason or reasons therefor;
c.4 that it is not one of the exceptions provided herein;
c.5 signatures of the petitioners or registered voters; and
c.6 an abstract or summary proposition in not more than one hundred (100) wo
rds which shall be legibly written or printed at the top of every page of the pe
tition.
xxx xxx xxx
Sec. 19. Applicability of the Omnibus Election Code. ? The Omnibus Electi
on Code and other election laws, not inconsistent with the provisions of this Ac
t, shall apply to all initiatives and referenda.
Sec. 20. Rules and Regulations. ? The Commission is hereby empowered to p
romulgate such rules and regulations as may be necessary to carry out the purpos
es of this Act. (Emphasis supplied)
2 G.R. No. 125416, September 26, 1996.
3 237 SCRA 279, 282, September 30, 1994.
4 Sec. 20, R.A. 6735.
5 United States vs. Rosika Schwimmer, 279 U.S. 644, 655 (1929).
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