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EN BANC

THE PROVINCE OF NORTH COTABATO, duly


represented by GOVERNOR JESUS
SACDALAN and/or VICE-GOVERNOR
EMMANUEL PIOL, for and in his own
behalf,
Petitioners,


- versus -


THE GOVERNMENT OF THE REPUBLIC OF
THE PHILIPPINES PEACE PANEL ON
ANCESTRAL DOMAIN (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 Peace
Process (OPAPP) or the so-called Office of
the Presidential Adviser on the Peace
Process,
Respondents.
x--------------------------------------------x
CITY GOVERNMENT OF ZAMBOANGA, as
represented by HON. CELSO L. LOBREGAT,
City Mayor of Zamboanga, and in his personal
capacity as resident of the City of
Zamboanga, Rep. MA. ISABELLE G.
CLIMACO, District 1, and Rep. ERICO
BASILIO A. FABIAN, District 2, City
ofZamboanga,
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 RYAN 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,


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






















- versus


THE GOVERNMENT OF THE REPUBLIC OF
THE PHILIPPINES PEACE PANEL ON
ANCESTRAL DOMAIN (GRP), represented by
SEC. RODOLFO GARCIA, ATTY. LEAH
ARMAMENTO, ATTY. SEDFREY
CANDELARIA, MARK RYAN SULLIVAN; GEN.
HERMOGENES ESPERON, JR., in his capacity
as 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,
1
st
Congressional District, HON. CESAR G.
JALOSJOS, Congressman, 3
rd
Congressional
District, and Members of the Sangguniang
Panlalawigan of the Province of Zamboanga
del Norte, namely, HON. SETH FREDERICK P.
JALOSJOS, HON. FERNANDO R. CABIGON,
JR., HON. ULDARICO M. MEJORADA 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. EDDING, HON.ANECITO S.
DARUNDAY, HON. ANGELICA J. CARREON
and HON. LUZVIMINDA E. TORRINO,
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 capacity as
the Presidential Adviser of Peace Process,
Respondents.
x--------------------------------------------x
ERNESTO M. MACEDA, JEJOMAR C. BINAY,
and AQUILINO L. PIMENTEL III,
Petitioners,







G.R. No. 183893

























G.R. No. 183951
























- versus -


THE GOVERNMENT OF THE REPUBLIC OF
THE PHILIPPINES PEACE NEGOTIATING
PANEL, represented 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, BASILANPROVINCE,
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
capacity 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 in
Mindanao Not Belonging to the MILF,
Petitioner-in-Intervention.
x--------------------------------------------x
CARLO B. GOMEZ, GERARDO S. DILIG,
NESARIO G. AWAT, JOSELITO C. ALISUAG
and RICHALEX 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
























G.R. No. 183962
PEACE & DEVELOPMENT (MMMPD),
Respondent-in-Intervention.
x--------------------------------------------x

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 controversy 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. Yet again, the Court is tasked to perform a delicate balancing act. It must uncompromisingly
delineate the bounds within which the President may lawfully exercise her discretion, but it must do so in
strict adherence to the Constitution, lest its ruling unduly restricts the freedom of action vested by that
same Constitution 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 negotiating panels, were scheduled to sign a
Memorandum of Agreement on the Ancestral Domain (MOA-AD) Aspect of the GRP-MILF Tripoli
Agreement on Peace of 2001 in Kuala Lumpur, Malaysia.

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


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

The MOA-AD was preceded by a long process of negotiation and the concluding of several prior
agreements between the two parties beginning in 1996, when the GRP-MILF peace negotiations
began. On July 18, 1997, the GRP and MILF Peace Panels signed the Agreement on General Cessation
of Hostilities. The following 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 parties to pursue peace negotiations, protect and
respect human rights, negotiate with sincerity in the resolution and pacific settlement of the conflict, and
refrain from the use of threat or force to attain undue advantage while the peace negotiations on the
substantive agenda are on-going.
[2]


Early on, however, it was evident that there was not going to be any smooth sailing in the GRP-
MILF peace process. Towards the end of 1999 up to early 2000, the MILF attacked a number of
municipalities in Central Mindanao and, in March 2000, it took control of the town hall of Kauswagan,
Lanao del Norte.
[3]
In response, then President Joseph Estrada declared and carried out an all-out-war
against the MILF.

When President Gloria Macapagal-Arroyo assumed office, the military offensive against the MILF
was suspended and the government sought a resumption of the peace talks. The MILF, according to a
leading MILF member, initially responded with deep reservation, but when President Arroyo asked the
Government of Malaysia through Prime Minister Mahathir Mohammad to help convince the MILF to return
to the negotiating table, the MILF convened its Central Committee to seriously 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 being 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 from June 20-22, 2001, the
outcome of which was the GRP-MILF Tripoli Agreement on Peace (Tripoli Agreement 2001) containing
the basic principles and agenda on the following aspects of the
negotiation: Security Aspect, RehabilitationAspect, and Ancestral Domain Aspect. With regard to the
Ancestral Domain Aspect, the parties in Tripoli Agreement 2001 simply agreed that the same be
discussed further by the Parties in their next meeting.

A second round of peace talks was held in Cyberjaya, Malaysia on August 5-7, 2001 which ended
with the signing of the Implementing Guidelines on the Security Aspect of the Tripoli Agreement 2001
leading to a ceasefire status between the parties. This was followed by the Implementing Guidelines on
the Humanitarian Rehabilitation and Development Aspects of the Tripoli Agreement 2001, which was
signed on May 7, 2002 at Putrajaya, Malaysia. Nonetheless, there were many incidence of violence
between government forces and the MILF from 2002 to 2003.

Meanwhile, then MILF Chairman Salamat Hashim passed away on July 13, 2003 and he was
replaced by Al Haj Murad, who was then the chief peace negotiator of the MILF. Murads position as
chief peace negotiator was taken over by Mohagher Iqbal.
[6]


In 2005, several exploratory talks were held between the parties in Kuala Lumpur, eventually
leading to the crafting of the draft MOA-AD in its final form, which, as mentioned, was set to be signed
last August 5, 2008.

II. STATEMENT OF THE PROCEEDINGS


Before the Court is what is perhaps the most contentious consensus ever embodied in an
instrument the MOA-AD which is assailed principally by the present 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 Esperon, Jr.

On July 23, 2008, the Province of North Cotabato
[8]
and Vice-Governor Emmanuel Piol 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 Restraining Order.
[9]
Invoking the right to information on matters
of public concern, petitioners seek to compel respondents to disclose and furnish them the complete and
official copies of the MOA-AD including its attachments, and to prohibit the slated signing of the MOA-AD,
pending the disclosure of the contents of the MOA-AD and the holding of a public consultation
thereon. Supplementarily, petitioners 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 Fabian 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 declared 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 General to submit to the Court and petitioners the official
copy of the final draft of the MOA-AD,
[14]
to which she complied.
[15]


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

The Province of Zamboanga del Norte,
[17]
Governor Rolando Yebes, Vice-Governor Francis
Olvis, Rep. Cecilia Jalosjos-Carreon, Rep. Cesar Jalosjos, and the members
[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 and 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 filed a petition for
Prohibition,
[20]
docketed as G.R. No. 183962, praying for a judgment prohibiting and permanently
enjoining respondents from formally signing and executing the MOA-AD and or any other agreement
derived therefrom or similar thereto, and nullifying the MOA-AD for being unconstitutional and
illegal. Petitioners herein additionally implead as respondent the MILF Peace Negotiating Panel
represented by its Chairman Mohagher Iqbal.
Various parties moved to intervene and were granted leave of court to file their petitions-
/comments-in-intervention. Petitioners-in-Intervention include Senator Manuel A. Roxas, former Senate
President Franklin Drilon and Atty. Adel Tamano, the City of Isabela
[21]
and Mayor Cherrylyn Santos-
Akbar, the Province of Sultan Kudarat
[22]
and Gov. Suharto Mangudadatu, the Municipality of Linamon in
Lanao del Norte,
[23]
Ruy Elias Lopez of Davao City and of the Bagobo tribe, Sangguniang
Panlungsod member Marino Ridao and businessman Kisin Buxani, both of Cotabato 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 submitted their respective Replies.

Respondents, by Manifestation and Motion of August 19, 2008, stated that the Executive
Department shall thoroughly review the MOA-AD and pursue further negotiations to address the issues
hurled against it, and thus moved to dismiss the cases. In the succeeding exchange of pleadings,
respondents motion was met with vigorous 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
concerned, if it is considered that consultation has become fait accompli with the
finalization of the draft;

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

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

4. Whether there is a violation of the peoples right to information on matters of public
concern (1987 Constitution, Article III, Sec. 7) under a state policy of full disclosure
of all its transactions involving public interest (1987 Constitution, Article II, Sec. 28)
including public consultation under Republic Act No. 7160 (LOCAL GOVERNMENT
CODE OF 1991)[;]

If it is in the affirmative, whether prohibition under Rule 65 of the 1997 Rules of Civil
Procedure is an appropriate remedy;

5. Whether by signing the MOA, the Government of the Republic of the Philippines would
be BINDING itself

a) to create and recognize the Bangsamoro Juridical Entity (BJE) as a separate
state, or a juridical, territorial or political subdivision not recognized by law;

b) to revise or amend the Constitution and existing laws to conform to the MOA;

c) to concede to or recognize the claim of the Moro Islamic Liberation Front for
ancestral domain in violation of Republic Act No. 8371 (THE
INDIGENOUS PEOPLES RIGHTS ACT OF 1997), particularly Section 3(g) &
Chapter VII (DELINEATION, RECOGNITION OF ANCESTRAL DOMAINS)[;]

If in the affirmative, whether the Executive Branch has the authority to so bind the
Government of the Republic of the Philippines;

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

7. Whether desistance from signing the MOA derogates any prior valid commitments 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 Court takes an overview of the MOA.

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

Under the heading Terms of Reference (TOR), the MOA-AD includes not only four earlier
agreements between the GRP and MILF, but also two agreements between the GRP and the MNLF: the
1976 Tripoli Agreement, and the Final Peace Agreement on the Implementation of the 1976 Tripoli
Agreement, signed on September 2, 1996 during the administration of President Fidel Ramos.

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 Peoples Rights Act (IPRA),
[26]
and several
international law instruments the ILO Convention No. 169 Concerning Indigenous and Tribal Peoples in
Independent Countries in relation to the UN Declaration on the Rights of the Indigenous Peoples, and the
UN Charter, among others.

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

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 lands where Islamic laws held sway, while the second denoted those
lands where Muslims were persecuted or where Muslim laws were outlawed or ineffective.
[27]
This way of
viewing the world, however, became more complex through the centuries as the 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 terms were drawn up to describe novel ways of perceiving non-Muslim
territories. For instance, areas like dar-ul-muahada (land of compact) and dar-ul-sulh (land of treaty)
referred to countries which, though under a secular regime, maintained peaceful and cooperative
relations with Muslim States, having been bound to each other by treaty or agreement. Dar-ul-
aman (land of order), on the other hand, referred to countries which, though not bound by treaty with
Muslim States, maintained freedom of religion for Muslims.
[28]


It thus appears that the compact rights entrenchment emanating from the regime of dar-ul-
muahada 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, treaty being broadly defined as any solemn agreement in writing that sets out
understandings, obligations, and benefits for both parties which provides for a framework that elaborates
the principles declared in the [MOA-AD].
[29]


The MOA-AD states that the Parties HAVE AGREED AND ACKNOWLEDGED AS FOLLOWS,
and starts with its main body.

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

A. CONCEPTS AND PRINCIPLES

This strand begins with the statement that it is the birthright of all Moros and all Indigenous
peoples of Mindanao to identify themselves and be accepted as Bangsamoros. It defines
Bangsamoro people as the natives or original inhabitants of Mindanao and its adjacent islands
including Palawan and the Sulu archipelago at the time of conquest or colonization, and their
descendants whether mixed or of full blood, including their spouses.
[30]


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

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


The Bangsamoro people are acknowledged as having the right to self-governance, which right is
said to be rooted on ancestral territoriality exercised originally under the suzerain authority of their
sultanates and the Pat a Pangampong ku Ranaw. The sultanates were described as states or
karajaan/kadatuan resembling a body politic endowed with all the elements of a nation-state in the
modern 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 territory defined as the Bangsamoro homeland was
ruled by several sultanates and, specifically in the case of the Maranao, by the Pat a Pangampong ku
Ranaw, a confederation of independent principalities (pangampong) each ruled by datus and sultans,
none of whom was supreme over the others.
[35]


The MOA-AD goes on to describe the Bangsamoro people as the First Nation with defined
territory and with a system of government having entered into treaties of amity and commerce with foreign
nations.
The term First Nation is of Canadian origin referring to the indigenous peoples of that territory,
particularly those known as Indians. In Canada, each of these indigenous peoples is equally entitled to
be called First Nation, hence, all of them are usually described collectively by the plural First
Nations.
[36]
To that extent, the MOA-AD, by identifying the Bangsamoro people as the First Nation
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 Bangsamoro Juridical Entity (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 the 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 geographic area of the ARMM
thus constituting the following areas: Lanao del Sur, Maguindanao, Sulu, Tawi-Tawi, Basilan,
and Marawi City. Significantly, this core also includes certain municipalities of Lanao del Norte that voted
for inclusion in the ARMM in the 2001 plebiscite.
[39]


Outside of this core, the BJE is to cover other provinces, cities, municipalities 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 different dates, years apart from each other. Thus, Category A
areas are to be subjected to a plebiscite not later than twelve (12) months following the signing of the
MOA-AD.
[40]
Category B areas, also called Special Intervention Areas, 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 jurisdiction over all natural resources
within its internal waters, defined as extending fifteen (15) kilometers from the coastline of the BJE
area;
[42]
that the BJE shall also have territorial waters, which shall stretch beyond the BJE internal
waters up to the baselines of the Republic of the Philippines (RP) south east and south west of mainland
Mindanao; and that within these territorial waters, the BJE and the Central Government (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 joint.

The MOA-AD further provides for the sharing of minerals on the territorial waters between the
Central Government and the BJE, in favor of the latter, through production sharing and economic
cooperation agreement.
[44]
The activities which the Parties are allowed to conduct on the territorial waters
are enumerated, among which are the exploration and utilization of natural resources, regulation of
shipping and fishing activities, and the enforcement of police and safety 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 cooperation and trade relations
with foreign countries and shall have the option to establish trade missions in those countries. Such
relationships and understandings, 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 of the Central
Government. The Central Government is also bound to take necessary steps to ensure the BJEs
participation in international meetings and events like 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 equitable 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 all potential sources of energy,
petroleum, fossil fuel, mineral oil and natural gas, the jurisdiction and control thereon is to be vested in the
BJE as the party having control within its territorial jurisdiction. This right carries the proviso that, in
times of national emergency, when public interest so requires, 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 production 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 people arising from any
unjust dispossession of their territorial and proprietary rights, customary land tenures, or their
marginalization shall be acknowledged. Whenever restoration is no longer possible, reparation is to be in
such form as mutually 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 Agreements (MPSA), Industrial Forest Management
Agreements (IFMA), and other land tenure 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 compact is to embody the details for the
effective enforcement and the mechanisms and modalities for the actual implementation of the MOA-
AD. The MOA-AD explicitly provides that the participation of the third party shall not in any way affect the
status of the relationship between the Central Government and the BJE.
[52]


The associative relationship
between the Central Government
and the BJE

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

The MOA-AD provides that its provisions requiring amendments to the existing legal framework
shall take effect upon signing of the Comprehensive Compact and upon effecting the aforesaid
amendments, with due regard to the non-derogation of prior agreements and within the stipulated
timeframe to be contained in the Comprehensive Compact. As will be discussed later, much of the
present controversy 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, legislation, legal, economic, police and internal
security force, judicial system and correctional institutions, the details of which shall be discussed in the
negotiation 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 Panels of the GRP and the MILF,
respectively. Notably, the penultimate paragraph of the MOA-AD identifies the signatories as the
representatives of the Parties, meaning 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 WITNESSED BY
Datuk Othman Bin Abd Razak, Special Adviser to the Prime Minister of Malaysia, ENDORSED BY
Ambassador Sayed Elmasry, Adviser to Organization of the Islamic Conference (OIC) Secretary General
and Special Envoy for Peace Process in Southern Philippines, and SIGNED IN THE PRESENCE OF
Dr. Albert G. Romulo, Secretary of Foreign Affairs of RP and Dato Seri Utama Dr. Rais Bin Yatim,
Minister of Foreign Affairs, 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 earlier 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]
Courts decline to issue
advisory opinions or to resolve hypothetical or feigned problems, or mere academic questions.
[55]
The
limitation of the power of judicial review to actual cases and controversies defines the role assigned to the
judiciary in a tripartite allocation of power, to assure that the courts will not intrude 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 from a hypothetical or abstract difference or
dispute. There must be a contrariety 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 judicial determination.
[58]


Related to the requirement of an actual case or controversy is the requirement of ripeness. A
question is ripe for adjudication when the act being challenged has 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 into 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 direct injury as a result of the act complained of.
[62]


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

The unsigned MOA-AD is simply a list of consensus points subject to further
negotiations and legislative enactments as well as constitutional processes aimed at
attaining a final peaceful agreement. Simply put, the MOA-AD remains to be a proposal
that does not automatically create legally demandable rights and obligations 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 character of the MOA-AD,
there are no concrete acts that could possibly violate petitioners and intervenors rights
since the acts complained of are mere contemplated steps toward the formulation of a
final peace agreement. Plainly, petitioners and intervenors perceived injury, if at all, is
merely imaginary and illusory apart 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 twelve (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 herein (the
Annex). The Annex constitutes an integral part of this framework
agreement. Toward this end, the Parties shall endeavor to complete
the negotiations 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
implementation of this MOA-AD shall be spelt out in the Comprehensive
Compact to mutually take such steps to enable it to occur effectively.

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


The Solicitor Generals arguments fail to persuade.

Concrete acts under the MOA-AD are not necessary to render the present controversy 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
challenged action, the dispute is said to have ripened into a judicial controversy even
without any other overt act. Indeed, even a singular violation of the Constitution 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
scheme is a coequal of Congress, is seriously alleged to have infringed the Constitution
and the laws x x x settling the dispute becomes the duty and the responsibility of the
courts.
[66]



In Santa Fe Independent School District v. Doe,
[67]
the United States Supreme Court held that the
challenge to the constitutionality of the schools policy allowing student-led prayers and speeches before
games was ripe for adjudication, even 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 States Supreme Court held that the action by the
State of New York challenging the provisions 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 the provision's consequences.
[70]


The present petitions pray for Certiorari,
[71]
Prohibition, and Mandamus. Certiorari and Prohibition
are remedies granted by law when any tribunal, board or officer has acted, in the case of certiorari, or is
proceeding, in the case of prohibition, without or in excess of its jurisdiction or with grave abuse of
discretion amounting to lack or excess of jurisdiction.
[72]
Mandamus is a remedy granted by law when any
tribunal, corporation, board, officer or person unlawfully neglects the performance of an act which the law
specifically enjoins as a duty resulting 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]
Certiorari, Mandamus and
Prohibition are appropriate remedies to raise constitutional issues and to review and/or prohibit/nullify,
when proper, acts of legislative 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 [t]he government's policy
framework for peace, including the systematic approach and the administrative structure for carrying out
the comprehensive peace process x x x be governed by this Executive Order.
[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 communities affected, nor informing them of
the proceedings. As will be discussed in greater detail later, such omission, by itself, constitutes a
departure by respondents 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 any provisions of the MOA-AD requiring amendments to the existing legal
framework shall come into force upon the signing of a Comprehensive Compact and upon effecting the
necessary changes to the legal framework, implying an amendment of the Constitution to accommodate
the MOA-AD. This stipulation, in effect, guaranteed to the MILF the amendment of the
Constitution. 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 Certiorari, Prohibition, and Mandamus, and an actual case or controversyripe
for adjudication 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 such a personal stake in the outcome of the
controversy as to assure that concrete adverseness which sharpens the presentation of issues upon
which the court so largely depends for illumination of difficult constitutional questions.
[78]


Because constitutional cases are often public actions in which the relief 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 has been or is about to be
denied some right or privilege to which he is lawfully entitled or that he is about to be subjected to some
burdens or penalties by reason of the statute or act complained of.
[80]
When the issue concerns a public
right, it is sufficient that the petitioner is a citizen and has an interest in the 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 that there is a wastage of public funds through the
enforcement of an invalid or unconstitutional law.
[82]
The Court retains discretion whether or not to allow a
taxpayers suit.
[83]


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


An organization may be granted standing to assert the rights of its members,
[85]
but the mere
invocation by the Integrated Bar of the Philippines or any member of the legal profession of the duty to
preserve the rule of law does not 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 facts 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 technicality on locus standi, given the
liberal attitude it has exercised, highlighted in the case of David v. Macapagal-Arroyo,
[89]
where
technicalities of procedure were brushed aside, the constitutional issues raised being of paramount public
interest or of transcendental importance deserving the attention of the Court in view of their seriousness,
novelty and weight as precedents.
[90]
The Courts forbearing 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 Constitution to determine whether
the other branches of government have kept themselves within the limits of the Constitution and the laws
and have not abused the discretion 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-intervention Province of Sultan Kudarat, City of
Isabela andMunicipality of Linamon have locus standi in view of the direct and substantial injury that
they, as LGUs, would suffer as their territories, whether in whole or in part, are to be included 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 BJE territory. Petitioners legal standing is thus beyond
doubt.

In G.R. No. 183962, petitioners Ernesto Maceda, Jejomar Binay and Aquilino Pimentel III would
have no standing as citizens and taxpayers for their failure 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
incumbent mayor of Makati City, and a resident of Cagayan de Oro, respectively, is of no
consequence. Considering their invocation of the transcendental importance of the issues at hand,
however, the Court grants them standing.

Intervenors Franklin Drilon and Adel Tamano, in alleging their standing as taxpayers, assert that
government funds would be expended for the conduct of 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 undeniable transcendental importance clothes them with
added basis for their personality to intervene in these petitions.

With regard to Senator Manuel Roxas, his standing is premised on his being a member of the
Senate and a citizen to enforce compliance by respondents of the publics 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 failure of either of the parties. He thus possesses the requisite standing as an intervenor.

With respect to Intervenors Ruy Elias Lopez, as a former congressman of the 3
rd
district of Davao
City, a taxpayer and a member of the Bagobo tribe;Carlo B. Gomez, et al., as members of the IBP
Palawan chapter, citizens and taxpayers; Marino Ridao, as taxpayer, resident and member of
the Sangguniang Panlungsod of Cotabato City; and Kisin Buxani, as taxpayer, they failed to allege any
proper legal interest in the present petitions. Just the same, the Court exercises 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 Development, an
advocacy group for justice and the attainment of peace and prosperity in Muslim Mindanao; and Muslim
Legal Assistance Foundation Inc., a non-government 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 the
MOA-AD, and prays for the denial of the petitions on the grounds therein stated. 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 subsequent pronouncement of the Executive Secretary that
[n]o matter what the Supreme Court ultimately decides[,] the government will not sign the MOA.
[92]


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


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


Another exclusionary circumstance that may be considered is where there is
a voluntary cessation of the activity complained of by the defendant or doer. Thus, once a suit is filed and
the doer voluntarily ceases the challenged conduct, it does not automatically deprive the tribunal of power
to hear and determine the case and does not render the case moot especially when the plaintiff seeks
damages or prays for injunctive relief against the possible recurrence of the violation.
[99]


The present petitions fall squarely into these exceptions to thus thrust them into the domain of
judicial review. The grounds cited above in David are 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
the Court similarly decided them on the merits, supervening events that would ordinarily 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 push through due to the Courts issuance of a Temporary Restraining
Order.

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

In fact, as what will, in the main, be discussed, there is a commitment on the part of
respondents to amend and effect necessary changes to the existing legal framework for certain
provisions of the MOA-AD to take effect. Consequently, 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 that it will not be signed as well as the
disbanding of the GRP Panel not withstanding.

Petitions are imbued with paramount public interest


There is no gainsaying that the petitions are imbued with paramount public interest, involving a
significant part of the countrys territory and the wide-ranging political modifications of affected
LGUs. The assertion that the MOA-AD is subject to further legal enactments including possible
Constitutional amendments more than ever provides impetus for the Court to formulate
controlling principles to guide the bench, the bar, the public and, in this case, the government and
its negotiating entity.

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

The present petitions must be differentiated from Suplico. Primarily, in Suplico, what was assailed
and eventually cancelled was a stand-alone government procurement contract for a national broadband
network involving a one-time contractual relation between two partiesthe government and a private
foreign corporation. As the issues therein involved specific government procurement policies and
standard principles on contracts, the majority opinion in Suplicofound nothing exceptional therein, the
factual circumstances being peculiar only to the 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 series 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 third such component to be undertaken
following the implementation of theSecurity Aspect in August 2001 and the Humanitarian, Rehabilitation
and Development Aspect in May 2002.

Accordingly, even if the Executive Secretary, in his Memorandum of August 28, 2008 to the
Solicitor General, has stated that no matter what the Supreme Court ultimately decides[,] the government
will not sign the MOA[-AD], mootness 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 to carry out
the Ancestral Domain Aspect of the Tripoli Agreement 2001, in another or in any form, which could
contain similar or significantly drastic provisions. While the Court notes the word of the Executive
Secretary that the government is committed to securing an agreement that is both constitutional and
equitable because that is the only way that long-lasting peace can be assured, it is minded to render
a decision on the merits in the present petitions to formulate controlling 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 Courts attention to the separate opinion of then Chief Justice Artemio
Panganiban in Sanlakas v. Reyes
[104]
in which he stated that the doctrine of capable of repetition yet
evading review can override mootness, provided 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. They contend that the Court
must have jurisdiction over the subject matter for the doctrine to be 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
that 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 again 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, particularly the Provinces of North Cotabato, Zamboanga del
Norte and Sultan Kudarat, the Cities of Zamboanga, Iligan and Isabela, and the Municipality of Linamon,
will again be subjected to the same problem in the future as respondents actions 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
themselves, 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 which the MOA-AD was negotiated and finalized, the
other relating to its provisions, 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 public 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 shall
be recognized. Access to official records, and to documents, and papers pertaining to
official acts, transactions, or decisions, as well as to government research 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 the statutory right to examine
and inspect public records, a right which was eventually 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 ruled that access to public
records is predicated on the right of the people to acquire information on matters of public concern since,
undoubtedly, in a democracy, the pubic has a legitimate interest in matters of social and political
significance.

x x x The incorporation of this right in the Constitution is a recognition of the
fundamental role of free exchange of information in a democracy. There can be no
realistic perception by the public of the nations 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: Maintaining 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. x x x
[111]



In the same way that free discussion enables members of society to cope with the exigencies of
their time, access to information of general interest aids 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
criticize and participate in the affairs of the government in a responsible, reasonable and effective
manner. It is by ensuring an unfettered and uninhibited exchange 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 public
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 Deeds,
[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 GSIS funds allegedly used to grant
loans to public officials,
[119]
the recovery of the Marcoses alleged ill-gotten wealth,
[120]
and the identity of
party-list nominees,
[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 sovereignty and territorial
integrity of the State, which directly affects the lives 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 distinguishing as to the executory nature or commercial
character of agreements, the Court has categorically ruled:

x x x [T]he right to information contemplates inclusion of negotiations leading
to the consummation of the transaction. Certainly, a consummated contract is not a
requirement for the exercise of the right to information. Otherwise, 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 until the
contract, which may be grossly disadvantageous to the government or even illegal,
becomesfait accompli. This negates the State policy of full transparency on matters of
public concern, a situation which the framers of the Constitution could not have
intended. Such a requirement will prevent the citizenry from participating in the public
discussion of any proposed contract, effectively truncating a basic right enshrined in the
Bill of Rights. We can allow neither an emasculation of a constitutional right, nor a retreat
by the State of its avowed policy of full disclosure of all its transactions involving public
interest.
[122]
(Emphasis and italics in the original)


Intended as a splendid symmetry
[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 State adopts
and implements a policy of full public disclosure of all its transactions involving public
interest.
[124]


The policy of full public disclosure enunciated in above-quoted Section 28 complements the right of
access to information on matters of public concernfound 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
officialdom to give information even if nobody demands.
[125]


The policy of public disclosure establishes a concrete ethical principle for the conduct of public
affairs in a genuinely open democracy, with the peoples right to know as the centerpiece. It is a mandate
of the State to be accountable by following such policy.
[126]
These provisions are vital to the exercise of
the freedom of expression and essential to hold public officials at all times 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
enunciated or will not be in force and effect until after Congress shall have provided it.

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



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

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

MR. OPLE. Yes. Originally, it was going to be self-executing, but I accepted an
amendment from Commissioner Regalado, so that the safeguards on national interest are
modified by the clause as may be provided by law

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

MR. OPLE. Yes. I think so, Mr. Presiding Officer, I said earlier that 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 is approved, revoking this
principle, which is inconsistent with this policy.
[129]
(Emphasis supplied)


Indubitably, the effectivity of the policy of public disclosure need not await the passing of a
statute. As Congress cannot revoke this principle, it is merely directed to provide for reasonable
safeguards. The complete and effective exercise of the right to information necessitates that its
complementary provision 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 correlative duty of the State to disclose its transactions involving
public interest is 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 such policy.

An essential element of these freedoms is to keep open a continuing dialogue 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 peoples will.
[131]
Envisioned to be corollary to the twin rights to information 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 the
people can participate and can react where the existing media facilities are not able
to provide full feedback mechanisms to the government? I suppose this will be part
of the government implementing operational mechanisms.

MR. OPLE. Yes. I think through their elected representatives and that is how
these 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
organizations that will be reacting. As a matter of fact, we will put more credence or
credibility on the private network of volunteers and voluntary community-based
organizations. So I do not think we are afraid that there will be another OMA in the
making.
[132]
(Emphasis supplied)

The imperative of a public consultation, as a species of the right to information, is evident in the
marching orders to respondents. The mechanics for 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 preambulatory 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 institutionalizing the peoples
participation.

One of the three underlying principles of the comprehensive peace process is that it should be
community-based, reflecting the sentiments, values and principles important to all Filipinos and shall be
defined not by the government alone, nor by the different contending groups only, but by all Filipinos as
one community.
[134]
Included as a component of the comprehensive peace process is consensus-
building and empowerment for peace, which includes continuing consultations on both national and local
levels to build consensus for a peace agenda and process, and the mobilization and facilitation of
peoples participation in the peace process.
[135]


Clearly, E.O. No. 3 contemplates not just the conduct of a plebiscite to effectuate
continuing consultations, contrary to respondents position that plebiscite is more than
sufficient consultation.
[136]


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


In fine, E.O. No. 3 establishes petitioners right to be consulted on the peace agenda, as a
corollary to the constitutional right to information and disclosure.

PAPP Esperon committed grave abuse of discretion


The PAPP committed grave abuse of discretion when he failed to carry out the pertinent
consultation. 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.

The Court may not, of course, require the PAPP to conduct the consultation 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 President.
[139]


Petitioners are not claiming a seat at the negotiating table, contrary to respondents retort in
justifying the denial of petitioners right to be consulted. Respondents stance manifests the manner by
which they treat the salient provisions of E.O. No. 3 on peoples 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 respondents invocation of the doctrine of executive privilege, it is not tenable under the
premises. The argument defies sound reason when contrasted with E.O. No. 3s explicit provisions on
continuing consultation and dialogue on both national and local levels. The executive order even
recognizes the exercise of the publics right even before the GRP makes its official recommendations
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 Courts August 4, 2008 Resolution, without a prayer for the documents disclosure in camera, or
without a manifestation that it was complying therewith ex abundante ad cautelam.

Petitioners assertion that the Local Government Code (LGC) of 1991 declares it a State policy to
require 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 jurisdictions
[142]
is well-
taken. The LGC chapter on intergovernmental relations puts flesh into this avowed policy:

Prior Consultations Required. No project or program shall be implemented by
government authorities unless the consultations mentioned in Sections 2 (c) and 26
hereof are complied with, and prior approval of the sanggunian concerned 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]
(Italics and underscoring supplied)


In Lina, Jr. v. Hon. Pao,
[144]
the Court held that the above-stated policy and above-quoted
provision of the LGU apply only to national programs or projects 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 group of
people residing in the locality where these will be implemented.
[145]
The MOA-AD is one peculiar
program that unequivocally and unilaterally vests ownership 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 inhabitants 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 to 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 mechanisms ordained in said Act,
[148]
which
entails, among other things, the observance of the free and prior informed consent of the ICCs/IPs.
Notably, the IPRA does not grant the Executive Department or any government agency the power
to delineate and recognize an ancestral domain claim by mere agreement or compromise. The
recognition of the ancestral domain is the raison detre of the MOA-AD, without which all other stipulations
or consensus points necessarily must fail. In proceeding to make a sweeping declaration on ancestral
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 effectivity of all provisions requiring changes to the legal framework, such clause is itself invalid, as
will be discussed in the following section.

Indeed, ours is an open society, with all the acts of the government subject to public scrutiny and
available always to public cognizance. This has to 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. Respondents have admitted as much in the oral
arguments before this Court, and the MOA-AD itself recognizes the need to amend the existing legal
framework to render effective at least some of its provisions. Respondents, nonetheless, counter 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 until the necessary changes to that framework are
made. The validity of this argument 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 granted 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 specific 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 the Parties actually framed its provisions with it in mind.

Association is referred to in paragraph 3 on TERRITORY, paragraph 11 on RESOURCES, and
paragraph 4 on GOVERNANCE. It is in the last mentioned provision, however, that the MOA-AD most
clearly uses it to describe the envisioned relationship 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 responsibilitywith
a structure of governance based on executive, legislative, judicial and administrative
institutions with defined powers and functions in the comprehensive compact. A period of
transition shall be established in a comprehensive peace compact specifying the
relationship between the Central Government and the BJE. (Emphasis and underscoring
supplied)

The nature of the associative relationship may have been intended to be defined more
precisely in the still to be forged Comprehensive Compact. Nonetheless, given that there is a concept of
association 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 bear in
understanding the use of the term associative in the MOA-AD.

Keitner and Reisman state that

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


For purposes of illustration, the Republic of the Marshall Islands and the Federated States of
Micronesia (FSM), formerly part of the U.S.-administered 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
is the U.S. dollar, indicating their very close ties with the U.S., yet they issue their own travel documents,
which is a mark of their statehood. Their international legal status as states was confirmed by the UN
Security Council and by their 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, marine resources, trade, banking, postal, civil aviation, and cultural
relations. The U.S. government, when conducting its foreign affairs, is obligated to consult 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 from 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 sovereigns. The Compact of Free Association is a treaty which is
subordinate to the associated nations national constitution, and each party may terminate the association
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 that the American model of free association is
actually based on an underlying status of independence.
[152]


In international practice, the associated state arrangement has usually been used as
a transitional device of former colonies on their way to full independence. 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 with the international legal
concept of association, specifically the following: the BJEs capacity to enter into economic and trade
relations with foreign countries, the commitment of the Central Government to ensure the BJEs
participation in meetings and events in the ASEAN and the specialized UN agencies, and the continuing
responsibility of the Central Government over external defense. Moreover, the BJEs right to participate in
Philippine official missions bearing on negotiation of border agreements, environmental protection, and
sharing of revenues pertaining to the bodies of water adjacent to or between the islands forming part of
the ancestral domain, resembles the right of the governments ofFSM and the Marshall Islands to be
consulted by the U.S. government on any foreign affairs matter affecting them.

These provisions of the MOA indicate, among other things, that the Parties 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 pres
ent Constitution


No province, city, or municipality, not even the ARMM, is recognized under our laws as having an
associative relationship with the national government. Indeed, the concept implies powers that go
beyond anything ever granted by the Constitution to any local or regional government. It also implies the
recognition of the 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 territory for independence.

Even the mere concept animating many of the MOA-ADs provisions, therefore, already requires for
its validity the amendment of constitutional provisions, specifically the following provisions of Article X:

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

SECTION 15. There shall be created autonomous regions in Muslim Mindanao and in
the Cordilleras consisting of provinces, cities, municipalities, and geographical areas
sharing common and distinctive historical and cultural heritage, economic and social
structures, and other relevant characteristics within the framework of this Constitution
and the national sovereignty as well as territorial integrity 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 ARMM. Indeed, BJE is a state in all but
name as it meets the criteria of a state laid down in the Montevideo Convention,
[154]
namely,
a permanent population, a defined 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 of Philippine
territory, the spirit animating it which has betrayed itself by its 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 surprising that many of the specific
provisions of the MOA-AD on the formation and powers of the BJE are in conflict with the
Constitution and the laws.

Article X, Section 18 of the Constitution provides that [t]he creation of the
autonomous region shall be effective when approved by a majority of the votes cast by the
constituent units in a plebiscite called for the purpose, provided that only provinces, cities, and
geographic areas voting favorably in such plebiscite shall be included in the autonomous
region. (Emphasis supplied)

As reflected above, the BJE is more of a state than an autonomous region. But even assuming
that it is covered by the term autonomous region in the constitutional 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 Norte which voted
for inclusion in the ARMM during the 2001 plebiscite Baloi, Munai, 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 ARMM
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 ARMM, 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 shall 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 the general
welfare of the people of the region. (Underscoring supplied)


Again on the premise that the BJE may be regarded as an autonomous region, the MOA-AD would
require an amendment that would expand the above-quoted provision. 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 vest in the BJE the powers found in the MOA-AD must, itself, comply with other
provisions of the Constitution. It would not do, for instance, to merely pass legislation vesting the BJE
with treaty-making power in order to accommodate paragraph 4 of the strand on RESOURCES which
states: The BJE is free to enter into any economic cooperation and trade relations with foreign countries:
provided, however, that such relationships and understandings do not include aggression against the
Government of the Republic of the Philippines x x x. Under our constitutional 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 country's sole
representative with foreign nations. As the chief architect of foreign policy, the
President acts as the country's mouthpiece with respect to international affairs.
Hence, the President is vested with the authority to deal with foreign states and
governments, extend or withhold recognition, maintain diplomatic relations, enter into
treaties, and otherwise transact the business of foreign relations. In the realm of
treaty-making, the President has the sole authority 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 provision states: The State recognizes and promotes
the rights of indigenous cultural communities within the framework of national unity and
development. (Underscoring supplied) An associative arrangement does not uphold national
unity. While there 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 territory in a status which, in international
practice, has generally been apreparation for independence, is certainly not conducive to national unity.

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



Article X, Section 3 of the Organic Act of the ARMM is a bar to the adoption of the definition
of Bangsamoro people used in the MOA-AD. Paragraph 1 on CONCEPTS AND PRINCIPLES states:

1. It is the birthright of all Moros and all Indigenous peoples of Mindanao to identify
themselves and be accepted as Bangsamoros. The Bangsamoro people refers to
those who are natives or original inhabitants of Mindanao and its adjacent
islands including Palawan and the Sulu archipelago at the time of conquest or
colonization of its descendants whether mixed or of full blood. Spouses and their
descendants 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 together the identities of the Bangsamoro and other
indigenous peoples living in Mindanao, clearly distinguishes between Bangsamoro people and Tribal
peoples, as follows:

As used in this Organic Act, the phrase indigenous cultural community refers
to Filipino citizens residing in the autonomous region who are:

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

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


Respecting the IPRA, it lays down the prevailing procedure for the delineation and recognition of
ancestral domains. The MOA-ADs manner of delineating the ancestral domain of the Bangsamoro
people is a clear departure from that procedure. By paragraph 1 of TERRITORY, the Parties simply
agree that, subject to the delimitations in the agreed Schedules, [t]he Bangsamoro homeland and historic
territory refer to the land mass as well as the maritime, terrestrial, fluvial and alluvial domains, and the
aerial domain, the atmospheric space above it, embracing the Mindanao-Sulu-Palawan geographic
region.

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

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

x x x x

b) Petition for Delineation. The process of delineating a specific perimeter 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 members of the ICCs/IPs;

c) Delineation Proper. The official delineation of ancestral domain boundaries
including census of all community members therein, shall be immediately undertaken by
the Ancestral Domains Office upon filing of the application by the ICCs/IPs concerned.
Delineation will be done in coordination with the community 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 indirectly attesting to
the possession or occupation of the area since time immemorial 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, burial
grounds, sacred places and old villages;

4) Historical accounts, including pacts and agreements concerning boundaries
entered 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 hunting
grounds;

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

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

e) Preparation of Maps. On the basis of such investigation and the findings of fact
based thereon, the Ancestral Domains Office of the NCIP shall prepare 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 the
preliminary census and a report of investigation, shall be prepared by the Ancestral
Domains Office of the NCIP;

g) Notice and Publication. A copy of each document, including a translation in the
native language of the ICCs/IPs concerned shall be posted in a prominent 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 shall 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 fifteen (15) days from date of such publication: Provided,
That in areas where no such newspaper exists, broadcasting in a radio station will be a
valid substitute: Provided, further, That mere posting shall be deemed sufficient if both
newspaper 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 sufficient proof.
However, if the proof is deemed insufficient, the Ancestral Domains Office shall require
the submission of additional evidence: Provided, That the 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 shall be appealable to the NCIP: Provided, furthermore, That in
cases where there are conflicting claims among ICCs/IPs on the boundaries of ancestral
domain claims, the Ancestral Domains Office shall cause the contending parties to meet
and assist them in coming up with a preliminary resolution of the conflict, without
prejudice 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, but also of international law is in order, for

Article II, Section 2 of the Constitution states that the
Philippines adopts the generally accepted
principles of international law as part of the law of
the land.


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 the law of the land on account of which it ordered the
release on bail of a detained alien of Russian descent whose deportation order had not been executed
even after two years. Similarly, the Court in Agustin v. Edu
[159]
applied the aforesaid constitutional
provision to the 1968 Vienna Convention on Road Signs and Signals.

International law has long recognized the right to self-determination of peoples, 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 had a right to unilaterally secede from Canada, the Canadian Supreme
Court in REFERENCE RE SECESSION OF QUEBEC
[160]
had occasion to acknowledge that the right of
a people to self-determination is now so widely recognized in international conventions that the principle
has acquired a status beyond convention and is considered a general principle of international law.

Among the conventions referred to are the International Covenant on Civil and Political
Rights
[161]
and the International Covenant on Economic, Social and Cultural Rights
[162]
which state, in
Article 1 of both covenants, that all peoples, by virtue of the right of self-determination, freely determine
their political status and freely pursue their economic, social, and cultural development.

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

(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 peoples pursuit of its political, economic, social and cultural development
within the framework of an existing state. A right to external self-determination
(which in this case potentially takes the form of the assertion of a right to unilateral
secession) arises in only the most extreme of cases and, even then, under
carefully defined circumstances. x x x

External self-determination can be defined as in the following statement from
the 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 evolved within
a framework of respect for the territorial integrity of existing states. The various
international documents that support the existence of a peoples right to self-
determination also contain parallel statements supportive of the conclusion that the
exercise of such a right must be sufficiently limited to prevent threats to an existing
states territorial integrity or the stability of relations between sovereign states.

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


The Canadian Court went on to discuss the exceptional cases in which the right to external self-
determination can arise, namely, where a people is under colonial rule, is subject to foreign domination or
exploitation outside a colonial context, and less definitely but asserted by a number of commentators
is blocked from the meaningful exercise of its right to internal self-determination. The Court ultimately
held that the population of Quebec had no right to secession, 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, social and cultural development, citing that Quebec is equitably represented in legislative,
executive and judicial institutions within Canada, even occupying prominent positions therein.

The exceptional nature of the right of secession is further exemplified in the REPORT OF THE
INTERNATIONAL COMMITTEE OF JURISTS ON THE LEGAL ASPECTS OF THE AALAND ISLANDS
QUESTION.
[163]
There, Sweden presented to the Council of the League of Nations the question of
whether the inhabitants of the Aaland Islands should be authorized to determine by plebiscite if the
archipelago should remain under Finnish sovereignty or be incorporated in the kingdom of Sweden. The
Council, before resolving the question, appointed an International Committee composed 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 treaties, the right of
disposing of national territory is essentially an attribute of the sovereignty of every
State. Positive International Law does not recognize the right of national groups,
as such, to separate themselves from the State of which they form part by the
simple expression of a wish, any more than it recognizes the right of other States to
claim such a separation. Generally speaking, the grant or refusal of the right to a
portion of its population of determining its own political fate by plebiscite or by
some other method, is, exclusively, an attribute of the sovereignty of every
Statewhich is definitively constituted. A dispute between two States concerning such
a question, under normal conditions therefore, bears upon a question which International
Law leaves entirely to the domestic jurisdiction of one of the States concerned. Any other
solution would 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 contrary to
the very idea embodied in term State, but would also endanger the interests of the
international community. If this right is not possessed by a large 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 underscoring 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 undergoing drastic
political transformation. The internal situation of Finland was, according to the Committee, so abnormal
that, for a considerable time, the conditions required for the formation of a sovereign State did not
exist. In the midst of revolution, anarchy, and civil war, the legitimacy of the Finnish national 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 duties. The armed camps and the police were divided into two
opposing forces. In light of these circumstances, Finland was not, during the relevant time period, a
definitively constituted sovereign state. The Committee, therefore, found that Finland did not possess
the right to withhold from a portion of its population the option to separate itself a right which sovereign
nations generally have with 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 connections to land (spiritual and otherwise) that have been forcibly incorporated into a
larger governing society. These groups are regarded as indigenous since they are the living
descendants of pre-invasion inhabitants of lands now dominated by others. Otherwise stated, indigenous
peoples, nations, or communities are culturally distinctive groups that find themselves engulfed by settler
societies born of the forces of empire and conquest.
[164]
Examples of groups who have been regarded as
indigenous peoples are the Maori of New Zealand and the aboriginal peoples of Canada.

As with the broader category of peoples, indigenous peoples situated within 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 Assembly 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, the Philippines being included among those in favor, and the
four voting against being Australia, Canada, New Zealand, and the U.S. The Declaration clearly
recognized the right of indigenous peoples to self-determination, encompassing the right 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 right
to autonomy or self-government in matters relating to their internal and local
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 political, legal,
economic, social and cultural institutions, while retaining their right to participate fully, if
they so choose, in the political, economic, social and cultural life of the State.


Self-government, as used in international legal discourse pertaining to indigenous peoples, has
been understood as equivalent to internal self-determination.
[166]
The extent of self-determination
provided for in the UN DRIP is more particularly defined in its subsequent articles, some of which are
quoted hereunder:
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
integrity 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
lands, territories or resources;
(c) Any form of forced population transfer which has the aim or effect of
violating 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
discrimination directed against them.
Article 21

1. Indigenous peoples have the right, without discrimination, to the improvement of
their economic and social conditions, including, inter alia, in the areas of education,
employment, vocational training and retraining, housing, sanitation, health and
social security.
2. States shall take effective measures and, where appropriate, special measures 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 resources
which they have traditionally owned, occupied or otherwise used or acquired.
2. Indigenous peoples have the right to own, use, develop and control the lands,
territories and resources that they possess by reason of traditional ownership or
other traditional occupation or use, as well as those which they have otherwise
acquired.
3. States shall give legal recognition and protection to these lands, territories and
resources. Such recognition shall be conducted with due respect to the customs,
traditions and land tenure systems of the indigenous peoples concerned.

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 peoples
concerned, through appropriate procedures and in particular through their
representative institutions, prior to using their lands or territories for military
activities.

Article 32

1. Indigenous peoples have the right to determine and develop priorities and
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 peoples
concerned through their own representative institutions in order to obtain their free
and informed consent prior to the approval of any project affecting their lands or
territories and other resources, particularly in connection with the 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 enforcement
of treaties, agreements and other constructive arrangements concluded with States
or their successors and to have States honour and respect such treaties,
agreements and other constructive arrangements.

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

Article 38

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



Assuming that the UN DRIP, like the Universal Declaration on Human Rights, 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, through the instrumentality of the BJE, the particular rights and powers provided for
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, Article 8 presupposes that it is the State
which will provide protection for indigenous 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 so essential to
indigenous peoples identity is acknowledged to be the responsibility 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 an acknowledgement of the right of indigenous peoples to the aerial domain and
atmospheric space. What it upholds, in Article 26 thereof, is the right of indigenous peoples to the lands,
territories and resources which they have traditionally 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-independent status of an associated state. All the
rights recognized in that document 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 pursuant to Article II, Section 2
of the Constitution, it would not suffice to uphold the validity of the MOA-AD so as to render its
compliance with other laws unnecessary.

It is, therefore, clear that the MOA-AD contains numerous provisions that 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 have entailed any violation of law or grave abuse of
discretion on their part, precisely 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 reproduced below for convenience:

7. The Parties agree that the mechanisms and modalities for the actual
implementation of this MOA-AD shall be spelt out in the Comprehensive Compact to
mutually take such steps to enable it to occur effectively.
Any provisions of the MOA-AD requiring amendments to the existing legal framework
shall come into force upon signing of a Comprehensive Compact and upon effecting the
necessary changes to the legal framework with due regard to non derogation 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 are effected. While the word
Constitution is not mentioned in the provision now under consideration or anywhere else in the
MOA-AD, the term legal framework is certainly broad enough to include the Constitution.

Notwithstanding the suspensive clause, however, respondents, by their mere act of incorporating
in the MOA-AD the provisions thereof regarding the associative relationship between the BJE and the
Central Government, have already violated the Memorandum of Instructions From The President dated
March 1, 2001, which states that the negotiations shall be conducted in accordance with x x x the
principles of the sovereignty and territorial integrity of the Republic of the Philippines. (Emphasis
supplied) Establishing an associative relationship between the BJE and the Central Government is, for
the reasons already discussed, a preparation for independence, or worse, an implicit acknowledgment of
an independent status 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 established Government Peace Negotiating Panels
for negotiations with different rebel groups to be appointed by the President as her official emissaries to
conduct negotiations, dialogues, and face-to-face discussions with rebel groups. These negotiating
panels are to report to the President, through the PAPP on the conduct 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. One of the components of a comprehensive peace process,
which E.O. No. 3 collectively refers to as the Paths to Peace, is the pursuit of social, economic, and
political reforms which may require new legislation or even constitutional amendments. Sec. 4(a) of E.O.
No. 3, which reiterates Section 3(a), of E.O. No. 125,
[167]
states:

SECTION 4. The Six Paths to Peace. The components of the comprehensive peace
process comprise the processes known as the Paths to Peace. These component
processes are interrelated and not mutually exclusive, and must therefore be pursued
simultaneously in a coordinated and integrated fashion. They shall include, but may not
be limited to, the following:

a. PURSUIT OF SOCIAL, ECONOMIC AND POLITICAL REFORMS. This component
involves the vigorous implementation of various policies, reforms, programs
and projects aimed at addressing the root causes of internal armed conflicts
and social unrest. This may require administrative action, new legislation or
even constitutional 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 armed conflict in Mindanao. The E.O.
authorized them to think outside the box, so to speak. Hence, they negotiated and were set on signing
the MOA-AD that included various social, economic, and political reforms which cannot, however, all be
accommodated within the present legal framework, and which thus would require new legislation and
constitutional amendments.

The inquiry on the legality of the suspensive clause, 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 the President, in
the course of peace negotiations, agree to pursue reforms that would require new legislation and
constitutional amendments, or should the reforms be restricted only to those solutions which the present
laws allow? The answer to this question requires a discussion of

the extent of the Presidents power to conduct peace
negotiations.


That the authority of the President to conduct peace negotiations with rebel groups is not explicitly
mentioned in the Constitution does not mean that she has no such authority. In Sanlakas v. Executive
Secretary,
[168]
in issue was 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:

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

. . . unstated residual powers which are implied from the
grant of executive power and which are necessary for her to comply
with her duties under the Constitution. The powers of the President
are not limited to what are expressly enumerated in the article on
the Executive Department and in scattered provisions of the
Constitution. This is so, notwithstanding the avowed intent of the
members of the Constitutional Commission of 1986 to limit the powers of
the President 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 relating 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 springs 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 underscoring
supplied)
Similarly, the Presidents power to conduct peace negotiations is implicitly included 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 Commander-in-Chief, she has the more specific duty to
prevent and suppress rebellion and lawless violence.
[169]


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

x x x [T]he fact remains that a successful political and governance transition must
form the core of any post-conflict peace-building mission. As we have observed
in Liberiaand Haiti over the last ten years, conflict cessation without modification of the
political environment, even where state-building is undertaken through technical electoral
assistance and institution- or capacity-building, is unlikely to succeed. On average, more
than 50 percent of states emerging from conflict return to conflict. Moreover, a
substantial proportion of transitions have resulted in weak or limited democracies.

The design of a constitution and its constitution-making process can play an
important role in the political and governance transition. Constitution-making after 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 agreement 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 nature and legal status of peace
agreements, observed that the typical way that peace agreements establish or confirm mechanisms for
demilitarization and demobilization 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. Behind the provisions of the
Constitution on autonomous regions
[172]
is the framers intention to implement a particular peace
agreement, namely, the Tripoli Agreement of 1976 between the GRP and the MNLF, signed by then
Undersecretary of National 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
speakers. I have only two questions.
I heard one of the Commissioners say that local autonomy already exists in
the Muslim 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
provisions of the Tripoli Agreement with respect to an autonomous region
in Mindanao. 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 regional
autonomy contemplated in that agreement, and now by state policy.
[173]
(Emphasis
supplied)


The constitutional provisions on autonomy and the statutes enacted pursuant to them have, to the
credit of their drafters, been partly successful. Nonetheless, the Filipino people are still faced with the
reality of an on-going conflict 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 peace negotiations, solutions that may require changes to
the Constitution for their implementation. Being uniquely vested with the power to conduct peace
negotiations with rebel groups, the President is in a singular position to know the precise nature of their
grievances which, if resolved, may bring an end to hostilities.

The President may not, of course, unilaterally implement the solutions that she considers viable,
but she may not be prevented from submitting them as recommendations 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 the
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 powers may be exercised only
by Congress, a Constitutional Convention, or the people through initiative and referendum she may
submit proposals for constitutional change to Congress in a manner that does not involve the arrogation
of constituent powers.

In Sanidad v. COMELEC,
[174]
in issue was the legality of then President Marcos act of directly
submitting proposals for constitutional amendments to a referendum, bypassing the interim National
Assembly which was the body vested by the 1973 Constitution with the power to propose such
amendments. President Marcos, it will be recalled, never convened the interim National Assembly. The
majority upheld the Presidents act, holding that the urges of absolute necessity compelled 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 Muoz Palma vigorously
dissented. The Courts concern 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 Teehankees dissent,
[175]
in particular, bears noting. While he disagreed 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 Presidents action along with the majority had the
President convened the interim National Assembly and coursed his proposals through it. Thus Justice
Teehankee opined:

Since the Constitution provides for the organization of the essential departments
of government, defines and delimits the powers of each and prescribes 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 Presidents
questioned decrees proposing and submitting constitutional amendments directly to the
people (without the intervention of the interim National Assembly in whom the
power is expressly vested) are devoid of constitutional and legal basis.
[176]
(Emphasis
supplied)


From the foregoing discussion, the principle may be inferred that the President in the course of
conducting peace negotiations may validly consider 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 be 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 Presidents suggestions
to the people, for any further involvement in the process of initiative by the Chief Executive may vitiate its
character as a genuine peoples initiative. The only initiative recognized by the Constitution is that
which truly proceeds from the people. As the Court stated in Lambino v. COMELEC:
[177]


The Lambino Group claims that their initiative is the people's voice. However,
the Lambino Group unabashedly states in ULAP Resolution No. 2006-02, in the
verification of their petition with the COMELEC, that ULAP maintains its unqualified
support to the agenda of Her Excellency President Gloria Macapagal-Arroyo for
constitutional reforms. The Lambino Group thus admits that their people's initiative is
an unqualified support to the agenda of the incumbent President to change the
Constitution. This forewarns the Court to be wary of incantations of people's voice or
sovereign will in the present initiative.

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

The foregoing discussion focused on the Presidents authority to
propose constitutional amendments, since her authority to propose new legislation is not in
controversy. It has been an accepted practice for Presidents in this jurisdiction to 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 Congress. 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 suspensive clause in the MOA-AD viewed in
light of the above-discussed standards

Given the limited nature of the Presidents authority to propose constitutional amendments,
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 most she could do is submit these proposals as
recommendations either to Congress or the people, in whom constituent powers are vested.

Paragraph 7 on Governance of the MOA-AD states, however, that all provisions thereof which
cannot be reconciled with the present Constitution and laws shall come into force upon signing of a
Comprehensive Compact and upon effecting the necessary changes to the legal framework. 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 with due regard to
non derogation of prior agreements and within the stipulated timeframe to be contained in the
Comprehensive Compact.

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


By the time these changes are put in place, the
MOA-AD itself would be counted among the prior
agreements from which there could be no
derogation.
What remains for discussion in the Comprehensive Compact would merely be the implementing details
for these consensus points and, notably, the deadlinefor effecting the contemplated changes to the legal
framework.

Plainly, stipulation-paragraph 7 on GOVERNANCE is inconsistent with the limits of the
Presidents authority to propose constitutional amendments, it being a virtual guarantee that the
Constitution and the laws of the Republic of the Philippines will certainly be adjusted to conform to all the
consensus points found in the MOA-AD. Hence, it must be struck down as unconstitutional.

A comparison between the suspensive clause of the MOA-AD with a similar provision appearing
in the 1996 final peace agreement between the MNLF and the GRP is most instructive.

As a backdrop, the parties to the 1996 Agreement stipulated that it would be implemented in two
phases. Phase I covered a three-year transitional period involving the putting up of new administrative
structures through Executive Order, such as the Special Zone of Peace and Development (SZOPAD) and
the Southern Philippines Council for Peace and Development (SPCPD), while Phase II covered the
establishment of the new regional autonomous governmentthrough amendment or repeal of 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 of the expanded
autonomous region envisioned by the parties. To that extent, they are similar to the provisions of the
MOA-AD. There is, however, a crucial difference between the two agreements. While the MOA-
AD virtually guarantees that the necessary changes to the legal framework will be put in place,
the GRP-MNLF final peace agreement states thus: Accordingly, these provisions [on Phase II] shall
be recommended by the GRP to Congress for incorporation in the amendatory or repealing law.

Concerns have been raised that the MOA-AD would have given rise to a binding international law
obligation on the part of the Philippines to change its Constitution in conformity thereto, on the ground that
it may be considered either 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 finds sufficient support in international law,
however.

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

The Decision on CHALLENGE TO JURISDICTION: LOM ACCORD AMNESTY
[180]
(the Lom
Accord case) of the Special Court of Sierra Leone is enlightening. The Lom Accord 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 Sierra Leone Government had been in armed conflict for
around eight years at the time of signing. There were non-contracting signatories to the agreement,
among which were the Government of the Togolese Republic, the Economic Community of West African
States, and the UN.

On January 16, 2002, after a successful negotiation between the UN Secretary-General 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 persons who bore the greatest responsibility for serious violations of
international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since
November 30, 1996.

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

In the Lom Accord case, the Defence argued that the Accord created an internationally
binding obligation not to prosecute the beneficiaries of the amnesty provided therein, citing, among other
things, the participation of foreign dignitaries and international organizations in the finalization of that
agreement. The Special Court, however, rejected this argument, ruling that the Lome Accord is not a
treaty and that it can only create binding obligations and rights between the parties in municipal law, not
in international law. Hence, the Special Court held, it is ineffective in depriving an international court like
it of jurisdiction.

37. In regard to the nature of a negotiated settlement of an internal armed conflict it is
easy to assume and to argue with some degree of plausibility, as Defence
counsel for the defendants seem to have done, that the mere fact that in
addition 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 internationalized 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 whose
auspices the settlement took place but who are not at all parties to the conflict, 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 purposes
a faction within the state. The non-contracting signatories of the Lom
Agreement were moral guarantors of the principle that, in the terms of Article
XXXIV of the Agreement, this peace agreement is implemented with integrity
and in good faith by both parties. The moral guarantors assumed no legal
obligation. It is recalled that the UN by its representative appended, presumably
for avoidance 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 and
obligations regulated by international law so that a breach of its terms will be a
breach determined under international law which will also provide principle means
of enforcement. The Lom Agreement created neither rights nor obligations
capable of being regulated by international law. An agreement such as the
Lom Agreement which brings to an end an internal armed conflict no doubt
creates a factual situation of restoration of peace that the international
community acting through the Security Council may take note of. That,
however, will not convert it to an international agreement which creates an
obligation enforceable in international, as distinguished from municipal,
law. A breach of the terms of such a peace agreement resulting in resumption of
internal armed conflict or creating 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 consequences such as action by the Security Council pursuant to
Chapter VII arise from the 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 which settles an internal armed conflict cannot
be ascribed the same status as one which settles an international armed
conflict which, essentially, must be between two or more warring States. The
Lom Agreement cannot be characterised as an international instrument. x x
x (Emphasis, italics and underscoring supplied)

Similarly, that the MOA-AD would have been signed by representatives of 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 unilateral
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]
also
known as the Nuclear Tests Case, decided by the International Court of Justice (ICJ).

In the Nuclear Tests Case, Australia challenged before the ICJ the legality of Frances nuclear
tests in the South Pacific. France refused to appear in the case, but public statements from its President,
and similar statements from other French officials including its Minister of Defence, that its 1974 series of
atmospheric tests would be its last, persuaded the ICJ to dismiss the case.
[182]
Those statements, the
ICJ held, amounted to a legal undertaking addressed to the international 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 to 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, concerning
legal or factual situations, may have the effect of creating legal obligations.
Declarations of this kind may be, and often are, very specific. When it is the
intention of the State making the declaration that it should become bound
according to its terms,that intention confers on the declaration the character
of a legal undertaking, the State being thenceforth legally required to follow a
course of conduct consistent with the declaration. An undertaking of this kind,
if given publicly, and with an intent to be bound, even though not made within 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 declaration, nor
even any reply or reaction from other States, is required for the declaration to take
effect, since such a requirement would be inconsistent with 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 choose to
take up a certain position in relation to a particular matter with the intention
of being boundthe intention is to be ascertained by interpretation of the
act. When States make statements by which their freedom of action is to be
limited, 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
effective.The validity of these statements and their legal consequences must
be considered within the general framework of the security of international
intercourse, and the confidence and trust which are so essential in the relations
among States. It is from the actual substance of these statements, and from
the circumstances attending their making, that the legal implications of the
unilateral act must 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 constitute an undertaking possessing legal effect. The
Court considers *270 that the President of the Republic, in deciding upon the
effective cessation of atmospheric tests, gave an undertaking to the international
community to which his words were 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 when the following conditions are present: the
statements were clearly addressed to the international community, the state intended to be bound to that
community by 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 recognized 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 subject of that case was a statement made by the President of Mali, in an interview by
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 pending between Mali and Burkina Faso.
Unlike in the Nuclear Tests Case, the ICJ held that the statement of Malis President was not a
unilateral act with legal implications. It clarified that its ruling 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, account must be
taken of all the factual circumstances in which the act occurred. For example, in
the Nuclear Tests cases, the Court took the view that since the applicant
States were not the only ones concerned at the possible continuance of
atmospheric testing by the French Government, that Government's unilateral
declarations had conveyed to the world at large, including the Applicant, its
intention effectively to terminate these tests (I.C.J. Reports 1974, p. 269, para.
51; p. 474, para. 53). In the particular circumstances of those cases, the
French Government 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 negotiated solution with each of the applicants
without thereby jeopardizing its contention that its conduct was lawful. The
circumstances of the present case are radically different. Here, there was
nothing to hinder the Parties from manifesting an intention to accept the
binding character of the conclusions of the Organization of African Unity
Mediation Commission by the normal method: a formal agreement on the
basis of reciprocity. Since no agreement of this kind was concluded between the
Parties, the Chamber finds that there are no grounds to interpret 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 underscoring 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 international community. The Philippine panel did not
draft the same with the clear intention 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 organizations 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 Lom Accord case, the mere fact that
in addition to the parties to the conflict, the peace settlement is signed by representatives 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 legal effect to
such commitments would not be detrimental to the security of international intercourse to the trust and
confidence essential in the relations among States.

In one important respect, the circumstances surrounding the MOA-AD are closer to that
of Burkina Faso wherein, as already discussed, the Mali Presidents statement 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 in the MOA-AD of a
clear commitment to be legally bound to the international community, not just the MILF, and by an equally
clear indication that the signatures of the participating states-representatives would constitute an
acceptance of that commitment. Entering into such a formal agreement would not have resulted in a loss
of face for the Philippine government before the international community, which was one of the difficulties
that prevented the French Government from entering 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 international law
notwithstanding, respondents almost consummated act ofguaranteeing amendments to the legal
framework is, by itself, sufficient to constitute grave abuse of discretion. The grave abuse lies not
in the fact that they considered, 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 Filipino people would
give their imprimatur to their solution. Upholding such an act would amount to authorizing a
usurpation of the constituent powers vested only in Congress, a Constitutional Convention, or the people
themselves through the process of initiative, for the only way that the Executive can ensure the outcome
of the amendment process is through an undue influence or interference with that process.

The sovereign people may, if it so desired, go to the extent of giving up a portion of its own
territory to the Moros for the sake of peace, for it can change the 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 respondents 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 proper matter for
judicial review.

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

Contrary to the assertion of respondents that the non-signing of the MOA-AD and the eventual
dissolution of the GRP Peace Panel mooted the present petitions, the Court finds that the present
petitions provide an exception to the moot and academic principle in view of (a) the grave violation of
the Constitution involved; (b) the exceptional character of the situation and paramount public interest; (c)
the need to formulate controlling principles to guide the bench, the 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 to 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 another one drawn up that could contain similar or significantly
dissimilar provisions compared to the original.

The Court, however, finds that the prayers for mandamus have been rendered moot in view of the
respondents action in providing the Court and the petitioners with the official copy of the final draft of the
MOA-AD and its annexes.

The peoples right to information on matters of public concern under Sec. 7, Article III of the
Constitution is in splendid symmetry with the state policy of full public disclosure of all its transactions
involving public interest under Sec. 28, Article II of the Constitution. The right to information guarantees
the right of the people to demand information, while Section 28 recognizes the duty of officialdom to give
information even if nobody demands. The complete and effective exercise of the right to information
necessitates that its complementary provision on public disclosure derive the same self-executory nature,
subject 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 involving public interest in
the highest order. In declaring that the right to information contemplates steps and negotiations leading
to the consummation of the contract, jurisprudence finds no distinction as to the executory nature or
commercial 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 these twin rights is the design for
feedback mechanisms. The right to public consultation 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
peoples right to be consulted on relevant matters relating to the peace agenda.

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

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

Three, Republic Act No. 8371 or the Indigenous Peoples Rights Act of 1997 provides for clear-cut
procedure for the recognition and delineation of ancestral domain, which entails, among other things, the
observance of the free and prior informed consent of the Indigenous Cultural Communities/Indigenous
Peoples. Notably, the statute does not grant the Executive Department or any government agency the
power to delineate and recognize an ancestral domain claim by mere agreement or compromise.

The invocation of the doctrine of executive privilege as a defense to the general right to information
or the specific right to consultation is untenable. The various explicit legal provisions fly in the face of
executive secrecy. In any event, respondents effectively waived such defense after it unconditionally
disclosed the official copies of the final draft of the MOA-AD, for judicial 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 process, 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 evasion 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 unconstitutional, for the concept presupposes that the associated entity is a
state and implies that the same is on its way to independence.

While there is a clause in the MOA-AD stating that the provisions thereof inconsistent with the
present legal framework will not be effective until that framework is amended, the same does not cure its
defect. The inclusion of provisions in the MOA-AD establishing an associative relationship between the
BJE and the Central Government is, itself, a violation of the Memorandum of Instructions From The
President dated March 1, 2001, addressed to the government peace panel. Moreover, as the clause is
worded, it virtually guarantees that the necessary amendments to the Constitution and the laws will
eventually be put in place. Neither the GRP Peace Panel nor the President herself is authorized to make
such a guarantee. Upholding such an act would amount to authorizing a usurpation of the constituent
powers vested only in Congress, a Constitutional Convention, or the people themselves through the
process of initiative, for the only way that the Executive can ensure the outcome of the amendment
process is through an undue influence or interference with that process.

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

WHEREFORE, respondents motion to dismiss is DENIED. The main and intervening petitions
are GIVEN DUE COURSE and hereby GRANTED.

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

SO ORDERED.


CONCHITA CARPIO MORALES
Associate Justice





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 that 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 PROCESS 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 PROCESS 40-
41 (2007).
[7]
Composed of its Chairperson, Sec. Rodolfo Garcia, and members, Atty. Leah Armamento, Atty.
Sedfrey Candelaria, with Mark Ryan Sullivan as Secretariat head.
[8]
Represented by Governor Jesus Sacdalan and/or Vice-Governor Emmanuel Piol.
[9]
Rollo (G.R. No. 183591), pp. 3-33.
[10]
Supplement to Petition (with motion for leave) of August 11, 2008, rollo (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. 68-71.
[14]
Rollo (G.R. No. 183591), pp. 130-131; rollo (G.R. No. 183752), pp. 66-67.
[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 Mejorada II, Edionar Zamoras,
Edgar Baguio, Cedric Adriatico, Felixberto Bolando, Joseph Brendo Ajero, Norbideiri Edding, Anecito
Darunday, Angelica Carreon, and Luzviminda 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 AND 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
AUTONOMOUS REGION IN MUSLIM MINDANAO, AS AMENDED.
[26]
R.A. No. 8371, AN ACT TO RECOGNIZE, PROTECT AND PROMOTE THE RIGHTS OF
INDIGENOUS CULTURAL COMMUNITIES/INDIGENOUS PEOPLES, CREATING A NATIONAL
COMMISSION ON INDIGENOUS PEOPLES, ESTABLISHING IMPLEMENTING MECHANISMS,
APPROPRIATING FUNDS 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 Court, 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 THE MORAL
DILEMMAS OF CITIZENSHIP, http://www.islamfortoday.com/khan04.htm, visited on September 18,
2008, and Syed Shahabuddin, MUSLIM WORLD AND THE CONTEMPORARY IJMA' ON RULES
OF GOVERNANCE - II, http://www.milligazette.com/Archives/2004/01-15May04-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 Kabungsuwan is quoted by historian
Cesar Adib Majul in his book, MUSLIMS IN THE PHILIPPINES (1973):

After a time it came to pass that Mamalu, who was the chief man next to Kabungsuwan,
journeyed to Cotabato. He found there that many of the people had ceased to 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 found
that the word sent to him by Mamamlu was true. Then he assembled together all 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 wives 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 which 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 Kabungsuwan, who regarded the teachings
of the Koran and lived in fear of God, prospered and increased, and we Moros of today
are their descendants. (Citation omitted, 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 and 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 group for the indigenous
peoples of Canada, adopted in 1985, begins thus:
WE 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.
[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]
IN WITNESS WHEREOF, the undersigned, being the representatives of the Parties[,] hereby affix
their signatures.
[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 Savers 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 (2003) (citation omitted).
[61]
Vide Warth v. Seldin, 422 US 490, 511 (1975).
[62]
Vide id. at 526.
[63]
Solicitor Generals 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, most 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]
Taada v. Angara, 338 Phil. 546, 575 (1997).
[75]
Entitled DEFINING POLICY AND ADMINISTRATIVE STRUCTURE FOR GOVERNMENTS PEACE
EFFORTS which reaffirms and reiterates Executive Order No. 125 of September 15, 1993.
[76]
E.O. No. 3, (2001), Sec. 1.
[77]
Vide Taada v. Angara, supra note 74.
[78]
Baker v. Carr, 369 U.S. 186 (1962).
[79]
Vicente V. Mendoza , JUDICIAL REVIEW OF CONSTITUTIONAL QUESTIONS 137 (2004).
[80]
Francisco, Jr. v. The House of Representatives, 460 Phil. 830, 896 (2003).
[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 (2000) citing Phil.
Constitution Assn., 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) citing 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 Albaa 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. Odegaard, 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, 469 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; Roble 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, 150 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 held that:
In determining whether or not a particular information is of public concern there 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]
Respondents Comment of August 4, 2008, p. 9.
[116]
Subido v. Ozaeta, supra note 108.
[117]
Taada, et al. v. Hon. Tuvera, et al., 220 Phil. 422 (1985); Taada, 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. 177271, 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) which 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 PHILIPPINES: 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 phrase
safeguards on national interest that may be provided by law was subsequently replaced by
reasonable conditions, 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, 2007, 530 SCRA 235, 331,
the Court stated:
x x x The duty to disclose covers only transactions involving public interest, while the duty to
allow access has a broader scope of information which embraces not only transactions involving
public interest, but any matter contained in official communications and public documents of the
government agency. (Underscoring 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]
Respondents 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 necessary, on the acceptability of locating the registered
enterprise within the community.
[140]
In their Memorandum, respondents made allegations purporting to show that consultations were
conducted on August 30, 2001 in Marawi City and Iligan City, on September 20, 2001 in Midsayap,
Cotabato, and onJanuary 18-19, 2002 in Metro 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 (2002).
[146]
Vide MOA-AD Concepts and Principles, pars. 2 & 7 in relation to Resources, par. 9 where vested
property rights are made subject to the cancellation, modification and review by the Bangsamoro
Juridical Entity.
[147]
REPUBLIC ACT No. 8371 or THE INDIGENOUS PEOPLES RIGHTS ACT OF 1997, Sec. 16.
[148]
Id., Sec. 3 (g), Chapter VIII, inter alia.
[149]
Taada 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 EXPERIENCE, 39
Tex. Int'l L.J. 1 (2003).
[151]
The former Trust Territory of the Pacific Islands is made up of the Caroline Islands, the Marshall
Islands, and the Northern Mariana Islands, which extend east of the Philippines and northeast
of Indonesia in the North Pacific Ocean. (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, 2
nd
ed., 274 (1987).
[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
REGION IN MUSLIM MINDANAO, AMENDING FOR THE PURPOSE REPUBLIC ACT NO. 6734,
ENTITLED AN ACT PROVIDING FOR THE AUTONOMOUS REGION IN MUSLIM MINDANAO, 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 PEOPLES, ESTABLISHING IMPLEMENTING MECHANISMS, APPROPRIATING
FUNDS THEREFOR, AND FOR 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 TOWARD
INDIGENOUS PEOPLES AND GROUP RIGHTS, 93 Am. Soc'y Int'l L. Proc. 251 (1999): In general,
the term indigenous is used in association with groups that maintain a continuity of cultural identity
with historical communities that suffered some form of colonial invasion, and that by virtue of that
continuity of cultural identity continue to distinguish themselves from others.
[165]
Catherine J. Iorns, INDIGENOUS PEOPLES AND SELF DETERMINATION: CHALLENGING
STATE SOVEREIGNTY, 24 Case W. Res. J. Int'l L. 199 (1992).
[166]
Federico Lenzerini, SOVEREIGNTY REVISITED: INTERNATIONAL LAW AND PARALLEL
SOVEREIGNTY OF INDIGENOUS PEOPLES, 42 Tex. Int'l L.J. 155 (2006). Vide Christopher J.
Fromherz,INDIGENOUS PEOPLES' COURTS: EGALITARIAN JURIDICAL PLURALISM, SELF-
DETERMINATION, AND THE UNITED NATIONS DECLARATION ON
THE RIGHTS OF INDIGENOUS PEOPLES, 156 U. Pa. L. Rev. 1341 (2008): While Australia and the
United States made much of the distinction between self-government and self-determination on
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 virtually synonymous. Self-determination under the
DRIP means internal self-determination when read in conjunction with Article 46, and self-
government, articulated in Article 4, is the core of the self-determination.

[167]
DEFINING THE APPROACH AND ADMINISTRATIVE STRUCTURE FOR GOVERNMENTS
COMPREHENSIVE 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: The Congress 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.
[180]
Prosecutor v. Kallon and Kamara [Case No. SCSL-2004-15-AR72(E), SCSL-2004-16-
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, 3
rd
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).
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 CORONA, 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 CAETE, 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 constitutionality of Republic Act
No. 9522
1
(RA 9522) adjusting the countrys archipelagic baselines and classifying the baseline regime of
nearby territories.


The Antecedents

In 1961, Congress passed Republic Act No. 3046 (RA 3046)
2
demarcating the maritime 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 1958 (UNCLOS I),
4
codifying, among others, the sovereign right of
States parties over their territorial sea, 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 for nearly five decades, save for legislation passed in
1968 (Republic Act No. 5446 [RA 5446]) correcting typographical errors and reserving the drawing of
baselines around Sabah in North Borneo.

In March 2009, Congress amended RA 3046 by enacting RA 9522, the statute now under scrutiny. The
change was prompted by the need to make RA 3046 compliant with the terms of the United Nations
Convention on the Law of the Sea (UNCLOS III),
5
which the Philippines ratified on 27 February
1984.
6
Among others, UNCLOS III prescribes the water-land ratio, length, and contour of baselines of
archipelagic States like the Philippines
7
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 Philippine archipelago and classified adjacent territories, namely,
the Kalayaan Island Group (KIG) and the Scarborough Shoal, as regimes of islands whose islands
generate their own applicable maritime zones.

Petitioners, professors of law, law students and a legislator, in their respective capacities as citizens,
taxpayers or x x x legislators,
9
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 Philippine states sovereign power, in violation of Article 1 of the 1987 Constitution,
10
embodying the
terms of the Treaty of Paris
11
and ancillary treaties,
12
and (2) RA 9522 opens the countrys waters
landward of the baselines to maritime passage by all vessels and aircrafts, undermining Philippine
sovereignty and national security, contravening the countrys nuclear-free policy, and damaging marine
resources, in violation of relevant constitutional provisions.
13


In addition, petitioners contend that RA 9522s treatment of the KIG as regime of islands not
only results in the loss of a large maritime area but also prejudices the livelihood of subsistence
fishermen.
14
To buttress their argument of territorial 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 IIIs framework of regime of islands to determine the maritime zones of the KIG and the
Scarborough Shoal.

Commenting on the petition, respondent officials raised threshold issues questioning (1) the petitions
compliance with the case or controversy requirement for judicial review grounded on petitioners alleged
lack of locus standi and (2) the propriety of the writs of certiorari and prohibition to assail the
constitutionality of RA 9522. On the merits, respondents defended RA 9522 as the countrys compliance
with the terms of UNCLOS III, preserving Philippine territory over the KIG or Scarborough Shoal.
Respondents add that RA 9522 does not undermine the countrys security, environment and economic
interests or relinquish the Philippines claim over Sabah.

Respondents also question the normative force, under international law, of petitioners 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 rectangular area drawn under the Treaty of Paris.

We left unacted petitioners 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 bring this suit as citizens and
(2) the writs of certiorari and prohibition are proper remedies to test the constitutionality of RA 9522. On
the merits, we find no 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 prerogative
15
nor misuse of public funds,
16
occasioned
by the passage and implementation of RA 9522. Nonetheless, we recognize petitioners locus standi as
citizens 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 understandably difficult to find other litigants possessing a more direct
and specific interest to bring the suit, thus satisfying one of the requirements for granting 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 prohibition, noting that the writs cannot issue absent any
showing of grave abuse of discretion in the exercise of judicial, quasi-judicial or ministerial powers on the
part of respondents and resulting prejudice on the part of petitioners.
18


Respondents submission holds true in ordinary civil proceedings. When this Court exercises its
constitutional power of judicial review, however, we have, by tradition, viewed the writs of certiorari and
prohibition as proper remedial vehicles to test the constitutionality of statutes,
19
and indeed, of acts of
other branches of government.
20
Issues of constitutional import are sometimes crafted out of statutes
which, while having no bearing on the personal interests of the petitioners, carry such relevance in the life
of this nation that the Court inevitably finds itself constrained to take cognizance of the case and pass
upon the issues 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 Countrys
Maritime Zones and Continental
Shelf Under UNCLOS III, not to
Delineate Philippine Territory


Petitioners submit that RA 9522 dismembers a large portion of the national territory
21
because it
discards the pre-UNCLOS III demarcation of Philippine territory under the Treaty of Paris and related
treaties, successively encoded in the definition of national territory under the 1935, 1973 and 1987
Constitutions. Petitioners theorize that this constitutional definition trumps any treaty or statutory provision
denying the Philippines sovereign control over waters, beyond the territorial sea recognized at the time of
the Treaty of Paris, that Spain supposedly ceded to the United States. Petitioners argue that from the
Treaty of Paris technical description, Philippine sovereignty over territorial waters extends hundreds of
nautical miles around the Philippine archipelago, embracing the rectangular area delineated in the Treaty
of Paris.
22


Petitioners theory fails to persuade us.

UNCLOS III has nothing to do with the acquisition (or loss) of territory. It is a multilateral treaty
regulating, among others, sea-use rights over maritime zones (i.e., the territorial waters [12 nautical miles
from the baselines], contiguous zone [24 nautical miles from the baselines], exclusive economic zone
[200 nautical miles from the baselines]), and continental shelves that UNCLOS III delimits.
23
UNCLOS III
was the culmination of decades-long negotiations among United Nations members to codify norms
regulating the conduct of States in the worlds oceans and submarine areas, recognizing coastal and
archipelagic States 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 States parties to
mark-out specific basepoints along their coasts from which baselines are drawn, either straight or
contoured, to serve as geographic starting points to measure the breadth of the maritime zones and
continental shelf. Article 48 of UNCLOS III on archipelagic States like ours could not be any clearer:

Article 48. Measurement of the breadth of the territorial sea, the contiguous zone,
the exclusive economic zone and the continental shelf. The breadth of the territorial
sea, the contiguous zone, the exclusive economic zone and the continental shelf shall be
measured from archipelagic baselines drawn in accordance with article 47. (Emphasis
supplied)
Thus, baselines laws are nothing but statutory mechanisms for UNCLOS III States parties to
delimit with precision the extent of their maritime zones and continental shelves. In turn, this gives notice
to the rest of the international community of the scope of the maritime space and submarine areas within
which States parties exercise treaty-based rights, namely, the exercise of sovereignty over territorial
waters (Article 2), the jurisdiction to enforce customs, fiscal, immigration, and sanitation laws in the
contiguous zone (Article 33), and the right to exploit the living and non-living resources in the exclusive
economic zone (Article 56) and continental shelf (Article 77).

Even under petitioners theory that the Philippine territory embraces the islands and all the
waters within the rectangular area delimited in the Treaty of Paris, the baselines of the Philippines would
still have to be drawn in accordance with RA 9522 because this is the only way to draw the baselines in
conformity with UNCLOS III. The baselines cannot be drawn from the boundaries or other portions of the
rectangular area delineated in the Treaty of Paris, but from the outermost islands and drying reefs of the
archipelago.
24


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


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


Petitioners next submit that RA 9522s use of UNCLOS IIIs regime of islands framework to draw the
baselines, and to measure the breadth of the applicable maritime zones of the KIG, weakens our
territorial claim over that area.
27
Petitioners add that the KIGs (and Scarborough Shoals) exclusion from
the Philippine archipelagic baselines results in the loss of about 15,000 square nautical miles of territorial
waters, prejudicing the livelihood of subsistence fishermen.
28
A comparison of the configuration of the
baselines drawn under RA 3046 and RA 9522 and the extent of maritime space encompassed by each
law, coupled with a reading of the text of RA 9522 and its congressional deliberations, vis--vis the
Philippines 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 basepoints that RA 9522 skipped to
optimize the location of basepoints and adjust the length of one baseline (and thus comply with UNCLOS
IIIs limitation on the maximum length of baselines). Under RA 3046, as under RA 9522, the KIG and the
Scarborough Shoal lie outside of the baselines drawn around the Philippine archipelago. This undeniable
cartographic fact takes the wind out of petitioners argument branding RA 9522 as a statutory
renunciation of the Philippines claim over the KIG, assuming that baselines are relevant for this purpose.

Petitioners assertion of loss of about 15,000 square nautical miles of territorial waters under RA 9522 is
similarly unfounded both in fact and law. On the contrary, RA 9522, by optimizing the location of
basepoints, increased the Philippines total maritime space (covering its internal waters, territorial sea
and exclusive economic zone) by 145,216 square nautical miles, as shown in the table below:
29

Extent of maritime area using
RA 3046, as amended, taking
into account the Treaty of
Paris delimitation (in square
nautical miles)
Extent of maritime
area using RA 9522,
taking into account
UNCLOS III (in square
nautical miles)
Internal or
archipelagic
waters

166,858

171,435

Territorial
Sea

274,136

32,106

Exclusive
Economic
Zone




382,669
TOTAL 440,994 586,210

Thus, as the map below shows, the reach of the exclusive economic zone drawn under RA 9522 even
extends way beyond the waters covered by the rectangular demarcation under the Treaty of Paris. Of
course, where there are overlapping exclusive economic zones of opposite or adjacent States, there will
have to be a delineation of maritime boundaries in accordance with UNCLOS III.
30




Further, petitioners argument that the KIG now lies outside Philippine territory because the baselines that
RA 9522 draws do not enclose the KIG is negated by RA 9522 itself. Section 2 of the law commits to text
the Philippines continued claim 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 Regime of
Islands 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
and
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 the Philippine
archipelago, adverse legal effects would have ensued. The Philippines would have committed a breach of
two provisions of UNCLOS III. First, Article 47 (3) of UNCLOS III requires that [t]he drawing of such
baselines shall not depart to any appreciable extent from the general configuration of the archipelago.
Second, Article 47 (2) of UNCLOS III requires that the length of the baselines shall not exceed 100
nautical miles, 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 KIG
32
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 depart to an appreciable extent from the general configuration
of the archipelago.

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 provision of
international law which states: The drawing of such baseline shall not depart to any
appreciable extent from the general configuration of the archipelago. So sa loob ng ating
baseline, dapat magkalapit ang mga islands. Dahil malayo ang Scarborough Shoal, hindi
natin masasabing malapit sila sa atin although we are still allowed by international law to
claim them as our own.

This is called contested islands outside our configuration. We see that our archipelago is
defined by the orange line which [we] call[] archipelagic baseline. Ngayon, tingnan ninyo
ang maliit na circle doon sa itaas, that is Scarborough Shoal, itong malaking circle sa
ibaba, that is Kalayaan Group or the Spratlys. Malayo na sila sa ating archipelago kaya
kung ilihis pa natin ang dating archipelagic 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 should follow the natural configuration of the
archipelago.
34
(Emphasis supplied)


Similarly, the length of one baseline that RA 3046 drew exceeded UNCLOS IIIs limits. The need
to shorten this baseline, and in addition, to optimize the location of basepoints using current maps,
became imperative as discussed by respondents:

[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 shelf in
the manner provided by Article 47 of [UNCLOS III]. As defined by R.A. 3046, as amended
by R.A. 5446, the baselines suffer from some technical deficiencies, to wit:

1. The length of the baseline across Moro Gulf (from Middle of 3 Rock Awash to Tongquil
Point) is 140.06 nautical miles x x x. This exceeds the maximum length allowed under
Article 47(2) of the [UNCLOS III], which states that 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.
2. The selection of basepoints is not optimal. At least 9 basepoints can be skipped or
deleted from the baselines system. This will enclose an additional 2,195 nautical miles of
water.
3. Finally, the basepoints were drawn from maps existing in 1968, and not established by
geodetic survey methods. Accordingly, some of the points, particularly 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 Philippines claim over the KIG and the Scarborough Shoal,
Congress decision to classify the KIG and the Scarborough Shoal as Regime[s] of Islands under the
Republic of the Philippines consistent with Article 121
36
of UNCLOS III manifests the Philippine States
responsible observance of its pacta sunt servanda obligation under UNCLOS III. Under Article 121 of
UNCLOS III, any naturally formed area of land, surrounded by water, which is above water at high tide,
such as portions of the KIG, qualifies under the category of regime of islands, whose islands generate
their own applicable maritime zones.
37






Statutory Claim Over Sabah under
RA 5446 Retained


Petitioners argument for the invalidity of RA 9522 for its failure to textualize the Philippines claim over
Sabah in North Borneo is also untenable. Section 2 of RA 5446, which RA 9522 did not repeal, keeps
open the door for drawing the baselines of Sabah:

Section 2. The definition of the baselines of the territorial sea of the Philippine
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 dominion and
sovereignty. (Emphasis supplied)



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

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


Whether referred to as Philippine internal waters under Article I of the Constitution
39
or as archipelagic
waters under UNCLOS III (Article 49 [1]), the Philippines exercises sovereignty over the body of water
lying landward of the baselines, including the air space over it and the submarine areas underneath.
UNCLOS III affirms this:

Article 49. Legal status of archipelagic waters, of the air space over archipelagic
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 archipelagic 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
not 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 such waters
and their air space, bed and subsoil, and the resources contained therein.
(Emphasis supplied)

The fact of sovereignty, however, does not preclude the operation of municipal and international law
norms subjecting the territorial sea or archipelagic waters to necessary, if not marginal, burdens in the
interest of maintaining unimpeded, expeditious international navigation, consistent with the international
law principle of freedom of navigation. Thus, domestically, the political branches of the Philippine
government, in the competent discharge of their constitutional powers, may pass legislation designating
routes within the archipelagic waters to regulate innocent and sea lanes passage.
40
Indeed, bills drawing
nautical highways for sea lanes passage are now pending in Congress.
41


In the absence of municipal legislation, international law norms, now codified in UNCLOS III,
operate to grant innocent passage rights over the territorial sea or archipelagic waters, subject to the
treatys limitations and conditions for their exercise.
42
Significantly, the right of innocent passage is a
customary international law,
43
thus automatically incorporated in the corpus of Philippine law.
44
No
modern State can validly invoke its sovereignty to absolutely forbid innocent passage that is exercised in
accordance with customary international law without risking retaliatory measures from the international
community.
The fact that for archipelagic States, their archipelagic waters are subject to both the right of
innocent passage and sea lanes passage
45
does not place them in lesser footing vis--vis continental
coastal States which are subject, in their territorial sea, to the right of innocent passage and the right of
transit passage through international straits. The imposition of these passage rights through archipelagic
waters under UNCLOS III was a concession by archipelagic States, in exchange for their right to claim all
the waters landward of their baselines, regardless of their depth or distance from the coast, as
archipelagic waters subject to their territorial sovereignty. More importantly, the recognition of archipelagic
States archipelago and the waters enclosed by their baselines as one cohesive entity prevents the
treatment of their islands as separate islands under UNCLOS III.
46
Separate islands generate their own
maritime zones, placing the waters between islands separated by more than 24 nautical miles beyond the
States territorial sovereignty, subjecting these waters to the rights of other States under UNCLOS III.
47



Petitioners invocation of non-executory constitutional provisions in Article II (Declaration of
Principles and State Policies)
48
must also fail. Our present state of jurisprudence considers the provisions
in Article II as mere legislative guides, which, absent enabling legislation, do not embody judicially
enforceable constitutional rights x x x.
49
Article II provisions serve as guides in formulating and
interpreting implementing legislation, as well as in interpreting executory provisions of the Constitution.
Although Oposa v. Factoran
50
treated the right to a healthful and balanced ecology under Section 16 of
Article II as an exception, the present petition lacks factual basis to substantiate the claimed constitutional
violation. The other provisions petitioners cite, relating to the protection of marine wealth (Article XII,
Section 2, paragraph 2
51
) and subsistence fishermen (Article XIII, Section 7
52
), 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 of all living and non-living resources within such
zone. Such a maritime delineation binds the international community since the delineation is in strict
observance of UNCLOS III. If the maritime delineation is contrary to UNCLOS III, the international
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 previously 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 miles.
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 Philippines Maritime Zones

Petitioners hold the view that, based on the permissive text of UNCLOS III, Congress was not
bound to pass RA 9522.
54
We have looked at the relevant provision of UNCLOS III
55
and we find
petitioners reading plausible. Nevertheless, the prerogative 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
UNCLOS III compliant baselines law, an archipelagic State like the Philippines will find itself devoid of
internationally acceptable baselines from where the breadth 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 around our
archipelago; and second, it weakens the countrys case in any international dispute over Philippine
maritime space. These are consequences Congress wisely avoided.

The enactment of UNCLOS III compliant baselines law for the Philippine archipelago and
adjacent areas, as embodied in RA 9522, allows an internationally-recognized delimitation of the breadth
of the Philippines maritime zones and continental shelf. RA 9522 is therefore a most vital step on the part
of the Philippines in safeguarding its maritime zones, consistent with the Constitution and our national
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 DIOSDADO M. PERALTA
Associate Justice

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 conclusions 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 An Act to Amend Certain Provisions of Republic Act No. 3046, as Amended by Republic Act
No. 5446, to Define the Archipelagic Baselines of the Philippines, and for Other Purposes.
2 Entitled An Act to Define the Baselines of the Territorial Sea of the Philippines.
3 The third Whereas Clause of RA 3046 expresses the import of treating the Philippines as an
archipelagic State:
WHEREAS, all the waters around, between, and connecting the various islands
of the Philippine archipelago, irrespective of their width or dimensions, have always been
considered as necessary appurtenances of the land territory, forming part of the inland
waters of the Philippines.
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 outermost points of the outermost islands and drying reefs of the archipelago
provided 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.
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: Where a coastal State intends to establish, in accordance with
article 76, the outer limits of its continental 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 possible but in any case within 10 years of the entry into force of this Convention for that
State. The coastal State shall at the same time give the names of any Commission members who
have provided it with scientific and technical advice. (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 period will be counted from that date.
Thus, RA 9522, which took effect on 27 March 2009, barely met the deadline.
9 Rollo, p. 34.
10Which provides: The national territory comprises the Philippine archipelago, with all the islands and
waters embraced therein, and all other territories over which the Philippines has sovereignty or
jurisdiction, consisting of its terrestrial, fluvial, and aerial domains, including its territorial sea, the
seabed, the subsoil, the insular shelves, and other submarine areas. The waters around,
between, and connecting the islands of the archipelago, regardless of their breadth and
dimensions, form part of the internal waters of the Philippines.
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, Spain ceded to the United States the
archipelago known as the Philippine Islands lying within its technical description.
12 The Treaty of Washington, between Spain and the United States (7 November 1900), transferring to
the US the islands of Cagayan, Sulu, and Sibutu and the US-Great 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 XIII, 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. COMELEC, 165 Phil. 303
(1976).
17Francisco, Jr. v. House of Representatives, 460 Phil. 830, 899 (2003) citing Kilosbayan, 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: the character of funds or assets involved in the
controversy and a clear disregard of constitutional or statutory prohibition. Id.
18. Rollo, pp. 144-147.
19See e.g. Aquino III v. COMELEC, G.R. No. 189793, 7 April 2010, 617 SCRA 623 (dismissing a petition
for certiorari and prohibition assailing the constitutionality 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 (issuing the writ of prohibition to declare unconstitutional Republic Act No.
9591); Macalintal 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 Investigations, G.R. No.
180643, 25 March 2008, 549 SCRA 77 (granting a writ of certiorari against the Philippine Senate
and nullifying the Senate contempt order issued against petitioner).
21 Rollo, p. 31.
22Respondents state in their Comment that petitioners theory has not been accepted or recognized by
either the United States or Spain, the parties to the Treaty of Paris. Respondents add that no
State is known to have supported this proposition. Rollo, p. 179.
23UNCLOS III belongs to that larger corpus of international law of the sea, which petitioner Magallona
himself defined as a body of treaty rules and customary norms governing the uses of the sea,
the exploitation of its resources, and the exercise of jurisdiction over maritime regimes. x x x x
(Merlin M. Magallona, Primer 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 outermost points of the outermost islands and drying reefs of the
archipelago provided 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 matters not regulated by this
Convention continue to be governed by the rules and principles of general international law.
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: Regime of islands.
1. An island is a naturally formed area of land, surrounded by water, which is above water at high
tide.
2. Except as provided for in paragraph 3, the territorial sea, the contiguous zone, the exclusive
economic zone and the continental shelf of an island are determined in accordance with the
provisions of this Convention applicable to other land territory.
3. Rocks which cannot sustain human habitation or economic life of their own shall have no
exclusive economic zone or continental shelf.
38 Rollo, pp. 56-57, 60-64.
39Paragraph 2, Section 2, Article XII of the Constitution uses the term archipelagic waters separately
from territorial sea. Under UNCLOS III, an archipelagic State may have internal waters such
as those enclosed by closing lines across bays and mouths of rivers. See Article 50, UNCLOS III.
Moreover, Article 8 (2) of UNCLOS III provides: Where the establishment of a straight baseline in
accordance with the method set forth in article 7 has the effect of enclosing as internal
waters areas which had not previously been considered as such, a right of innocent passage as
provided in this Convention shall exist in those waters. (Emphasis 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 States
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
foreign ships, suspend temporarily in specified areas of its archipelagic waters
the innocent passage of foreign ships if such suspension is essential for the
protection of its security. Such suspension shall take effect only after having
been duly published. (Emphasis supplied)

Article 53. Right of archipelagic sea lanes passage.
1. An archipelagic State may designate sea lanes and air routes
thereabove, suitable for the continuous and expeditious passage of foreign ships
and aircraft through or over its archipelagic waters and the adjacent territorial
sea.
2. All ships and aircraft enjoy the right of archipelagic sea lanes
passage in such sea lanes and air routes.
3. Archipelagic sea lanes passage means the exercise in accordance
with this Convention of the rights of navigation and overflight in the normal mode
solely for the purpose of continuous, expeditious and unobstructed transit
between one part of the high seas or an exclusive economic zone and another
part of the high seas 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 routes for international navigation or overflight through or over archipelagic
waters and, within such routes, so far as ships are concerned, all normal
navigational 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 aircraft 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 distance 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 narrow channels in such sea lanes.
7. An archipelagic State may, when circumstances require, after giving
due publicity thereto, substitute other sea lanes or traffic separation schemes for
any sea lanes or traffic separation schemes previously designated or prescribed
by it.
8. Such sea lanes and traffic separation schemes shall conform to
generally accepted international regulations.
9. In designating or substituting sea lanes or prescribing or substituting
traffic separation schemes, an archipelagic State shall refer proposals to the
competent international organization with a view to their adoption. The
organization may adopt only such sea lanes and traffic separation schemes as
may be agreed with the archipelagic State, after which the archipelagic State
may designate, prescribe 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 and traffic separation schemes established in accordance with this article.
12. If an archipelagic State does not designate sea lanes or air routes,
the right of archipelagic sea lanes passage may be exercised through the routes
normally used for international navigation. (Emphasis supplied)
41Namely, House Bill No. 4153 and Senate Bill No. 2738, identically titled AN ACT TO ESTABLISH THE
ARCHIPELAGIC SEA LANES IN THE PHILIPPINE ARCHIPELAGIC WATERS, PRESCRIBING
THE RIGHTS AND OBLIGATIONS OF FOREIGN SHIPS AND AIRCRAFTS EXERCISING THE
RIGHT OF ARCHIPELAGIC SEA LANES PASSAGE THROUGH THE ESTABLISHED
ARCHIPELAGIC SEA LANES AND PROVIDING FOR THE ASSOCIATED PROTECTIVE
MEASURES THEREIN.
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 supplied)

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 with 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
engages 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 violation
of the principles of international law embodied in the Charter of the United
Nations;
(b) any exercise or practice with weapons of any kind;
(c) any act aimed at collecting information to the prejudice of the defence
or security of the coastal State;
(d) any act of propaganda aimed at affecting the defence or security of
the coastal 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 the customs, fiscal, immigration or sanitary laws and regulations of
the coastal State;

(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 passage.
1. The coastal State may adopt laws and regulations, in conformity with
the provisions of this Convention and other rules of international law, relating to
innocent passage through the territorial sea, in respect of all or any of the
following:
(a) the safety of navigation and the regulation of maritime traffic;
(b) the protection of navigational aids and facilities and other facilities or
installations;
(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
sanitary laws and regulations of the coastal State.
2. Such laws and regulations shall not apply to the design, construction,
manning or equipment of foreign ships unless they are giving effect to generally
accepted 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
territorial 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 ships and not to aircrafts
(Article 17, UNCLOS III). The right of innocent passage of aircrafts through the sovereign territory
of a State arises only under an international agreement. In contrast, the right of innocent passage
through archipelagic waters applies to both ships and aircrafts (Article 53 (12), UNCLOS III).
44Following Section 2, Article II of the Constitution: Section 2. The Philippines renounces war as an
instrument of national policy, adopts the generally accepted principles of international law as
part of the law of the land and adheres to the policy of peace, equality, justice, freedom,
cooperation, and amity with all nations. (Emphasis supplied)
45Archipelagic sea lanes passage is essentially the same as transit passage through straits 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 under 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,
enjoy, subject to the relevant provisions of this Convention, the freedoms referred
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 to 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
the 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 seas, 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 coastal
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
under 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 interests 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); Taada v. Angara, 338 Phil. 546, 580-581
(1997).
50 G.R. No. 101083, 30 July 1993, 224 SCRA 792.
51 The State shall protect the nations marine wealth in its archipelagic waters, territorial sea, and
exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens.
52The State shall protect the rights of subsistence fishermen, especially of local communities, to the
preferential use of the communal marine and fishing resources, both inland and offshore. It shall
provide support to such fishermen through appropriate technology and research, adequate
financial, production, and marketing assistance, and other services. The State shall also protect,
develop, and conserve such resources. The protection shall extend to offshore fishing grounds of
subsistence fishermen against foreign intrusion. Fishworkers shall receive a just share from their
labor in the utilization of marine and fishing resources.
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: An 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 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)
EN BANC
[G.R. No. 118295. May 2, 1997]
WIGBERTO E. TAADA and ANNA DOMINIQUE COSETENG, as members of the Philippine Senate
and as taxpayers; GREGORIO ANDOLANA and JOKER ARROYO as members of the House
of Representatives and as taxpayers; NICANOR P. PERLAS and HORACIO R. MORALES,
both as taxpayers; CIVIL LIBERTIES UNION, NATIONAL ECONOMIC PROTECTIONISM
ASSOCIATION, CENTER FOR ALTERNATIVE DEVELOPMENT INITIATIVES, LIKAS-
KAYANG KAUNLARAN FOUNDATION, INC., PHILIPPINE RURAL RECONSTRUCTION
MOVEMENT, DEMOKRATIKONG KILUSAN NG MAGBUBUKID NG PILIPINAS, INC., and
PHILIPPINE PEASANT INSTITUTE, in representation of various taxpayers and as non-
governmental organizations, petitioners, vs. EDGARDO ANGARA, ALBERTO ROMULO,
LETICIA RAMOS-SHAHANI, HEHERSON ALVAREZ, AGAPITO AQUINO, RODOLFO
BIAZON, NEPTALI GONZALES, ERNESTO HERRERA, JOSE LINA, GLORIA MACAPAGAL-
ARROYO, ORLANDO MERCADO, BLAS OPLE, JOHN OSMEA, SANTANINA RASUL,
RAMON REVILLA, RAUL ROCO, FRANCISCO TATAD and FREDDIE WEBB, in their
respective capacities as members of the Philippine Senate who concurred in the
ratification by the President of the Philippines of the Agreement Establishing the World
Trade Organization; SALVADOR ENRIQUEZ, in his capacity as Secretary of Budget and
Management; CARIDAD VALDEHUESA, in her capacity as National Treasurer; RIZALINO
NAVARRO, in his capacity as Secretary of Trade and Industry; ROBERTO SEBASTIAN, in
his capacity as Secretary of Agriculture; ROBERTO DE OCAMPO, in his capacity as
Secretary of Finance; ROBERTO ROMULO, in his capacity as Secretary of Foreign Affairs;
and TEOFISTO T. GUINGONA, in his capacity as Executive Secretary, respondents.
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 international business and economic relations
amongst states. It has irreversibly propelled the world towards trade liberalization and economic
globalization. Liberalization, globalization, deregulation and privatization, the third-millennium buzz
words, are ushering in a new borderless world of business by sweeping away as mere historical relics the
heretofore traditional modes of promoting and protecting national economies like tariffs, export subsidies,
import quotas, quantitative restrictions, tax exemptions and currency controls. Finding market niches and
becoming the best in specific industries in a market-driven and export-oriented global scenario are
replacing age-old beggar-thy-neighbor policies that unilaterally protect weak and inefficient domestic
producers of goods and services. In the words of Peter Drucker, the well-known management guru,
Increased participation in the world economy has become the key to domestic economic growth and
prosperity.
Brief Historical Background
To hasten worldwide recovery from the devastation wrought by the Second World War, plans for the
establishment of three multilateral institutions -- inspired by that grand political body, the United Nations --
were discussed at Dumbarton Oaks and Bretton Woods. The first was the World Bank (WB) which was
to address the rehabilitation and reconstruction of war-ravaged and later developing countries;
the second, the International Monetary Fund (IMF) which was to deal with currency problems; and the
third, the International Trade Organization (ITO), which was to foster order and predictability in world
trade and to minimize unilateral protectionist policies that invite challenge, even retaliation, from other
states. However, for a variety of reasons, including its non-ratification by the United States, the ITO,
unlike the IMF and WB, never took off. What remained was only GATT -- the General Agreement on
Tariffs and Trade. GATT was a collection of treaties governing access to the economies of treaty
adherents with no institutionalized body administering the agreements or dependable system of dispute
settlement.
After half a century and several dizzying rounds of negotiations, principally the Kennedy Round, the
Tokyo Round and the Uruguay Round, the world finally gave birth to that administering body -- the World
Trade Organization -- with the signing of the Final Act in Marrakesh, Morocco and the ratification of the
WTO Agreement by its members.
[1]

Like many other developing countries, the Philippines joined WTO as a founding member with the
goal, as articulated by President Fidel V. Ramos in two letters to the Senate (infra), of improving
Philippine access to foreign markets, especially its major trading partners, through the reduction of tariffs
on its exports, particularly agricultural and industrial products. The President also saw in the WTO the
opening of new opportunities for the services sector x x x, (the reduction of) costs and uncertainty
associated with exporting x x x, and (the attraction of) more investments into the country. Although the
Chief Executive did not expressly mention it in his letter, the Philippines - - and this is of special interest to
the legal profession - - will benefit from the WTO system of dispute settlement by judicial adjudication
through the independent WTO settlement bodies called (1) Dispute Settlement Panels and (2) Appellate
Tribunal. Heretofore, trade disputes were settled mainly through negotiations where solutions were
arrived at frequently on the basis of relative bargaining strengths, and where naturally, weak and
underdeveloped countries were at a disadvantage.
The Petition in Brief
Arguing mainly (1) that the WTO requires the Philippines to place nationals and products of
member-countries on the same footing as Filipinos and local products and (2) that the WTO intrudes,
limits and/or impairs the constitutional powers of both Congress and the Supreme Court, the instant
petition before this Court assails the WTO Agreement for violating the mandate of the 1987 Constitution
to develop a self-reliant and independent national economy effectively controlled by Filipinos x x x (to)
give preference to qualified Filipinos (and to) promote the preferential use of Filipino labor, domestic
materials and locally produced goods.
Simply stated, does the Philippine Constitution prohibit Philippine participation in worldwide trade
liberalization and economic globalization? Does it prescribe Philippine integration into a global economy
that is liberalized, deregulated and privatized? These are the main questions raised in this petition
for certiorari, prohibition and mandamusunder Rule 65 of the Rules of Court praying (1) for the
nullification, on constitutional grounds, of the concurrence of the Philippine Senate in the ratification by
the President of the Philippines of the Agreement Establishing the World Trade Organization (WTO
Agreement, for brevity) and (2) for the prohibition of its implementation and enforcement through the
release and utilization of public funds, the assignment of public officials and employees, as well as the
use of government properties and resources by respondent-heads of various executive offices concerned
therewith. This concurrence is embodied in Senate Resolution No. 97, dated December 14, 1994.
The Facts
On April 15, 1994, Respondent Rizalino Navarro, then Secretary of
the Department of Trade and Industry (Secretary Navarro, for brevity), representing the Government of
the Republic of the Philippines, signed in Marrakesh, Morocco, the Final Act Embodying the Results of
the Uruguay Round of Multilateral Negotiations (Final Act, for brevity).
By signing the Final Act,
[2]
Secretary Navarro on behalf of the Republic of the Philippines, agreed:
(a) to submit, as appropriate, the WTO Agreement for the consideration of their respective competent
authorities, with a view to seeking approval of the Agreement in accordance with their procedures; and
(b) to adopt the Ministerial Declarations and Decisions.
On August 12, 1994, the members of the Philippine Senate received a letter dated August 11, 1994
from the President of the Philippines,
[3]
stating among others that the Uruguay Round Final Act is hereby
submitted to the Senate for its concurrence pursuant to Section 21, Article VII of the Constitution.
On August 13, 1994, the members of the Philippine Senate received another letter from the
President of the Philippines
[4]
likewise dated August 11, 1994, which stated among others that the
Uruguay Round Final Act, the Agreement Establishing the World Trade Organization, the Ministerial
Declarations and Decisions, and the Understanding on Commitments in Financial Services are hereby
submitted to the Senate for its concurrence pursuant to Section 21, Article VII of the Constitution.
On December 9, 1994, the President of the Philippines certified the necessity of the immediate
adoption of P.S. 1083, a resolution entitled Concurring in the Ratification of the Agreement Establishing
the World Trade Organization.
[5]

On December 14, 1994, the Philippine Senate adopted Resolution No. 97 which Resolved, as it is
hereby resolved, that the Senate concur, as it hereby concurs, in the ratification by the President of the
Philippines of the Agreement Establishing the World Trade Organization.
[6]
The text of the WTO
Agreement is written on pages 137 et seq.of Volume I of the 36-volume Uruguay Round of Multilateral
Trade Negotiations and includes various agreements and associated legal instruments (identified in the
said Agreement as Annexes 1, 2 and 3 thereto and collectively referred to as Multilateral Trade
Agreements, for brevity) as follows:
ANNEX 1
Annex 1A: Multilateral Agreement on Trade in Goods
General Agreement on Tariffs and Trade 1994
Agreement on Agriculture
Agreement on the Application of Sanitary and
Phytosanitary Measures
Agreement on Textiles and Clothing
Agreement on Technical Barriers to Trade
Agreement on Trade-Related Investment Measures
Agreement on Implementation of Article VI of the General Agreement on Tariffs
and Trade 1994
Agreement on Implementation of Article VII of the General on Tariffs and Trade
1994
Agreement on Pre-Shipment Inspection
Agreement on Rules of Origin
Agreement on Imports Licensing Procedures
Agreement on Subsidies and Coordinating Measures
Agreement on Safeguards
Annex 1B: General Agreement on Trade in Services and Annexes
Annex 1C: Agreement on Trade-Related Aspects of Intellectual Property Rights
ANNEX 2
Understanding on Rules and Procedures Governing the Settlement of Disputes
ANNEX 3
Trade Policy Review Mechanism
On December 16, 1994, the President of the Philippines signed
[7]
the Instrument of Ratification,
declaring:
NOW THEREFORE, be it known that I, FIDEL V. RAMOS, President of the Republic of the Philippines,
after having seen and considered the aforementioned Agreement Establishing the World Trade
Organization and the agreements and associated legal instruments included in Annexes one (1), two (2)
and three (3) of that Agreement which are integral parts thereof, signed at Marrakesh, Morocco on 15
April 1994, do hereby ratify and confirm the same and every Article and Clause thereof.
To emphasize, the WTO Agreement ratified by the President of the Philippines is composed of the
Agreement Proper and the associated legal instruments included in Annexes one (1), two (2) and three
(3) of that Agreement which are integral parts thereof.
On the other hand, the Final Act signed by Secretary Navarro embodies not only the WTO
Agreement (and its integral annexes aforementioned) but also (1) the Ministerial Declarations and
Decisions and (2) the Understanding on Commitments in Financial Services. In his Memorandum dated
May 13, 1996,
[8]
the Solicitor General describes these two latter documents as follows:
The Ministerial Decisions and Declarations are twenty-five declarations and decisions on a wide range of
matters, such as measures in favor of least developed countries, notification procedures, relationship of
WTO with the International Monetary Fund (IMF), and agreements on technical barriers to trade and on
dispute settlement.
The Understanding on Commitments in Financial Services dwell on, among other things, standstill or
limitations and qualifications of commitments to existing non-conforming measures, market access,
national treatment, and definitions of non-resident supplier of financial services, commercial presence and
new financial service.
On December 29, 1994, the present petition was filed. After careful deliberation on respondents
comment and petitioners reply thereto, the Court resolved on December 12, 1995, to give due course to
the petition, and the parties thereafter filed their respective memoranda. The Court also requested the
Honorable Lilia R. Bautista, the Philippine Ambassador to the United Nations stationed in Geneva,
Switzerland, to submit a paper, hereafter referred to as Bautista Paper,
[9]
for brevity, (1) providing a
historical background of and (2) summarizing the said agreements.
During the Oral Argument held on August 27, 1996, the Court directed:
(a) the petitioners to submit the (1) Senate Committee Report on the matter in controversy and (2) the
transcript of proceedings/hearings in the Senate; and
(b) the Solicitor General, as counsel for respondents, to file (1) a list of Philippine treaties signed prior to
the Philippine adherence to the WTO Agreement, which derogate from Philippine sovereignty and (2)
copies of the multi-volume WTO Agreement and other documents mentioned in the Final Act, as soon as
possible.
After receipt of the foregoing documents, the Court said it would consider the case submitted for
resolution. In a Compliance dated September 16, 1996, the Solicitor General submitted a printed copy of
the 36-volume Uruguay Round of Multilateral Trade Negotiations, and in another Compliance dated
October 24, 1996, he listed the various bilateral or multilateral treaties or international instruments
involving derogation of Philippine sovereignty. Petitioners, on the other hand, submitted their
Compliance dated January 28, 1997, on January 30, 1997.
The Issues
In their Memorandum dated March 11, 1996, petitioners summarized the issues as follows:
A. Whether the petition presents a political question or is otherwise not justiciable.
B. Whether the petitioner members of the Senate who participated in the deliberations and voting
leading to the concurrence are estopped from impugning the validity of the Agreement
Establishing the World Trade Organization or of the validity of the concurrence.
C. Whether the provisions of the Agreement Establishing the World Trade Organization contravene
the provisions of Sec. 19, Article II, and Secs. 10 and 12, Article XII, all of the 1987 Philippine
Constitution.
D. Whether provisions of the Agreement Establishing the World Trade Organization unduly limit,
restrict and impair Philippine sovereignty specifically the legislative power which, under Sec. 2,
Article VI, 1987 Philippine Constitution is vested in the Congress of the Philippines;
E. Whether provisions of the Agreement Establishing the World Trade Organization interfere with
the exercise of judicial power.
F. Whether the respondent members of the Senate acted in grave abuse of discretion amounting to
lack or excess of jurisdiction when they voted for concurrence in the ratification of the
constitutionally-infirm Agreement Establishing the World Trade Organization.
G. Whether the respondent members of the Senate acted in grave abuse of discretion amounting to
lack or excess of jurisdiction when they concurred only in the ratification of the Agreement
Establishing the World Trade Organization, and not with the Presidential submission which
included the Final Act, Ministerial Declaration and Decisions, and the Understanding on
Commitments in Financial Services.
On the other hand, the Solicitor General as counsel for respondents synthesized the several issues
raised by petitioners into the following:
[10]

1. Whether or not the provisions of the Agreement Establishing the World Trade Organization and the
Agreements and Associated Legal Instruments included in Annexes one (1), two (2) and three (3) of that
agreement cited by petitioners directly contravene or undermine the letter, spirit and intent of Section 19,
Article II and Sections 10 and 12, Article XII of the 1987 Constitution.
2. Whether or not certain provisions of the Agreement unduly limit, restrict or impair the exercise of
legislative power by Congress.
3. Whether or not certain provisions of the Agreement impair the exercise of judicial power by this
Honorable Court in promulgating the rules of evidence.
4. Whether or not the concurrence of the Senate in the ratification by the President of the Philippines of
the Agreement establishing the World Trade Organization implied rejection of the treaty embodied in the
Final Act.
By raising and arguing only four issues against the seven presented by petitioners, the Solicitor
General has effectively ignored three, namely: (1) whether the petition presents a political question or is
otherwise not justiciable; (2) whether petitioner-members of the Senate (Wigberto E. Taada and Anna
Dominique Coseteng) are estopped from joining this suit; and (3) whether the respondent-members of the
Senate acted in grave abuse of discretion when they voted for concurrence in the ratification of the WTO
Agreement. The foregoing notwithstanding, this Court resolved to deal with these three issues thus:
(1) The political question issue -- being very fundamental and vital, and being a matter that probes into
the very jurisdiction of this Court to hear and decide this case -- was deliberated upon by the Court and
will thus be ruled upon as the first issue;
(2) The matter of estoppel will not be taken up because this defense is waivable and the respondents
have effectively waived it by not pursuing it in any of their pleadings; in any event, this issue, even if ruled
in respondents favor, will not cause the petitions dismissal as there are petitioners other than the two
senators, who are not vulnerable to the defense of estoppel; and
(3) The issue of alleged grave abuse of discretion on the part of the respondent senators will be taken up
as an integral part of the disposition of the four issues raised by the Solicitor General.
During its deliberations on the case, the Court noted that the respondents did not question the locus
standi of petitioners. Hence, they are also deemed to have waived the benefit of such issue. They
probably realized that grave constitutional issues, expenditures of public funds and serious international
commitments of the nation are involved here, and that transcendental public interest requires that the
substantive issues be met head on and decided on the merits, rather than skirted or deflected by
procedural matters.
[11]

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

The jurisdiction of this Court to adjudicate the matters
[14]
raised in the petition is clearly set out in the
1987 Constitution,
[15]
as follows:
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights
which are legally demandable and enforceable, and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality
of the government.
The foregoing text emphasizes the judicial departments duty and power to strike down grave abuse
of discretion on the part of any branch or instrumentality of government including Congress. It is an
innovation in our political law.
[16]
As explained by former Chief Justice Roberto Concepcion,
[17]
the
judiciary is the final arbiter on the question of whether or not a branch of government or any of its officials
has acted without jurisdiction or in excess of jurisdiction or so capriciously as to constitute an abuse of
discretion amounting to excess of jurisdiction. This is not only a judicial power but a duty to pass
judgment on matters of this nature.
As this Court has repeatedly and firmly emphasized in many cases,
[18]
it will not shirk, digress from or
abandon its sacred duty and authority to uphold the Constitution in matters that involve grave abuse of
discretion brought before it in appropriate cases, committed by any officer, agency, instrumentality or
department of the government.
As the petition alleges grave abuse of discretion and as there is no other plain, speedy or adequate
remedy in the ordinary course of law, we have no hesitation at all in holding that this petition should be
given due course and the vital questions raised therein ruled upon under Rule 65 of the Rules of
Court. Indeed, certiorari, prohibition andmandamus are appropriate remedies to raise constitutional
issues and to review and/or prohibit/nullify, when proper, acts of legislative and executive officials. On
this, we have no equivocation.
We should stress that, in deciding to take jurisdiction over this petition, this Court will not review
the wisdom of the decision of the President and the Senate in enlisting the country into the WTO, or pass
upon the merits of trade liberalization as a policy espoused by said international body. Neither will it rule
on the propriety of the governments economic policy of reducing/removing tariffs, taxes, subsidies,
quantitative restrictions, and other import/trade barriers. Rather, it will only exercise its constitutional duty
to determine whether or not there had been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of the Senate in ratifying the WTO Agreement and its three annexes.
Second Issue: The WTO Agreement and Economic Nationalism
This is the lis mota, the main issue, raised by the petition.
Petitioners vigorously argue that the letter, spirit and intent of the Constitution mandating economic
nationalism are violated by the so-called parity provisions and national treatment clauses scattered in
various parts not only of the WTO Agreement and its annexes but also in the Ministerial Decisions and
Declarations and in the Understanding on Commitments in Financial Services.
Specifically, the flagship constitutional provisions referred to are Sec. 19, Article II, and Secs. 10
and 12, Article XII, of the Constitution, which are worded as follows:
Article II
DECLARATION OF PRINCIPLES AND STATE POLICIES
xx xx
xx xx
Sec. 19. The State shall develop a self-reliant and independent national economy effectively controlled
by Filipinos.
xx xx
xx xx
Article XII
NATIONAL ECONOMY AND PATRIMONY
xx xx
xx xx
Sec. 10. x x x. The Congress shall enact measures that will encourage the formation and operation of
enterprises whose capital is wholly owned by Filipinos.
In the grant of rights, privileges, and concessions covering the national economy and patrimony, the State
shall give preference to qualified Filipinos.
xx xx
xx xx
Sec. 12. The State shall promote the preferential use of Filipino labor, domestic materials and locally
produced goods, and adopt measures that help make them competitive.
Petitioners aver that these sacred constitutional principles are desecrated by the following WTO
provisions quoted in their memorandum:
[19]

a) In the area of investment measures related to trade in goods (TRIMS, for brevity):
Article 2
National Treatment and Quantitative Restrictions.
1. Without prejudice to other rights and obligations under GATT 1994. no Member shall apply
any TRIM that is inconsistent with the provisions of Article III or Article XI of GATT 1994.
2. An Illustrative list of TRIMS that are inconsistent with the obligations of general elimination of
quantitative restrictions provided for in paragraph I of Article XI of GATT 1994 is contained in
the Annex to this Agreement. (Agreement on Trade-Related Investment Measures, Vol. 27,
Uruguay Round, Legal Instruments, p.22121, emphasis supplied).
The Annex referred to reads as follows:
ANNEX
Illustrative List
1. TRIMS that are inconsistent with the obligation of national treatment provided for in
paragraph 4 of Article III of GATT 1994 include those which are mandatory or enforceable
under domestic law or under administrative rulings, or compliance with which is necessary
to obtain an advantage, and which require:
(a) the purchase or use by an enterprise of products of domestic origin or from any domestic
source, whether specified in terms of particular products, in terms of volume or value of
products, or in terms of proportion of volume or value of its local production; or
(b) that an enterprises purchases or use of imported products be limited to an amount related
to the volume or value of local products that it exports.
2. TRIMS that are inconsistent with the obligations of general elimination of quantitative restrictions
provided for in paragraph 1 of Article XI of GATT 1994 include those which are mandatory or
enforceable under domestic laws or under administrative rulings, or compliance with which is
necessary to obtain an advantage, and which restrict:
(a) the importation by an enterprise of products used in or related to the local production that it
exports;
(b) the importation by an enterprise of products used in or related to its local production by
restricting its access to foreign exchange inflows attributable to the enterprise; or
(c) the exportation or sale for export specified in terms of particular products, in terms of
volume or value of products, or in terms of a preparation of volume or value of its local
production. (Annex to the Agreement on Trade-Related Investment Measures, Vol. 27,
Uruguay Round Legal Documents, p.22125, emphasis supplied).
The paragraph 4 of Article III of GATT 1994 referred to is quoted as follows:
The products of the territory of any contracting party imported into the territory of any other contracting
party shall be accorded treatment no less favorable than that accorded to like products of national
origin in respect of laws, regulations and requirements affecting their internal sale, offering for sale,
purchase, transportation, distribution or use. the provisions of this paragraph shall not prevent the
application of differential internal transportation charges which are based exclusively on the economic
operation of the means of transport and not on the nationality of the product. (Article III, GATT 1947, as
amended by the Protocol Modifying Part II, and Article XXVI of GATT, 14 September 1948, 62 UMTS 82-
84 in relation to paragraph 1(a) of the General Agreement on Tariffs and Trade 1994, Vol. 1, Uruguay
Round, Legal Instruments p.177, emphasis supplied).
b) In the area of trade related aspects of intellectual property rights (TRIPS, for brevity):
Each Member shall accord to the nationals of other Members treatment no less favourable than
that it accords to its own nationals with regard to the protection of intellectual property... (par. 1, Article
3, Agreement on Trade-Related Aspect of Intellectual Property rights, Vol. 31, Uruguay Round, Legal
Instruments, p.25432 (emphasis supplied)
(c) In the area of the General Agreement on Trade in Services:
National Treatment
1. In the sectors inscribed in its schedule, and subject to any conditions and qualifications set
out therein, each Member shall accord to services and service suppliers of any other
Member, in respect of all measures affecting the supply of services, treatment no less
favourable than it accords to its own like services and service suppliers.
2. A Member may meet the requirement of paragraph I by according to services and service
suppliers of any other Member, either formally identical treatment or formally different
treatment to that it accords to its own like services and service suppliers.
3. Formally identical or formally different treatment shall be considered to be less favourable if it
modifies the conditions of completion in favour of services or service suppliers of the Member
compared to like services or service suppliers of any other Member. (Article XVII, General
Agreement on Trade in Services, Vol. 28, Uruguay Round Legal Instruments, p.22610
emphasis supplied).
It is petitioners position that the foregoing national treatment and parity provisions of the WTO
Agreement place nationals and products of member countries on the same footing as Filipinos and local
products, in contravention of the Filipino First policy of the Constitution. They allegedly render
meaningless the phrase effectively controlled by Filipinos. The constitutional conflict becomes more
manifest when viewed in the context of the clear duty imposed on the Philippines as a WTO member to
ensure the conformity of its laws, regulations and administrative procedures with its obligations as
provided in the annexed agreements.
[20]
Petitioners further argue that these provisions contravene
constitutional limitations on the role exports play in national development and negate the preferential
treatment accorded to Filipino labor, domestic materials and locally produced goods.
On the other hand, respondents through the Solicitor General counter (1) that such
Charter provisions are not self-executing and merely set out general policies; (2) that these nationalistic
portions of the Constitution invoked by petitioners should not be read in isolation but should be related to
other relevant provisions of Art. XII, particularly Secs. 1 and 13 thereof; (3) that read properly, the cited
WTO clauses do not conflict with the Constitution; and (4) that the WTO Agreement contains sufficient
provisions to protect developing countries like the Philippines from the harshness of sudden trade
liberalization.
We shall now discuss and rule on these arguments.
Declaration of Principles Not Self-Executing
By its very title, Article II of the Constitution is a declaration of principles and state policies. The
counterpart of this article in the 1935 Constitution
[21]
is called the basic political creed of the nation by
Dean Vicente Sinco.
[22]
These principles in Article II are not intended to be self-executing principles ready
for enforcement through the courts.
[23]
They are used by the judiciary as aids or as guides in the exercise
of its power of judicial review, and by the legislature in its enactment of laws. As held in the leading case
of Kilosbayan, Incorporated vs. Morato,
[24]
the principles and state policies enumerated in Article II and
some sections of Article XII are not self-executing provisions, the disregard of which can give rise to a
cause of action in the courts. They do not embody judicially enforceable constitutional rights but
guidelines for legislation.
In the same light, we held in Basco vs. Pagcor
[25]
that broad constitutional principles need legislative
enactments to implement them, thus:
On petitioners allegation that P.D. 1869 violates Sections 11 (Personal Dignity) 12 (Family) and 13 (Role
of Youth) of Article II; Section 13 (Social Justice) of Article XIII and Section 2 (Educational Values) of
Article XIV of the 1987 Constitution, suffice it to state also that these are merely statements of principles
and policies. As such, they are basically not self-executing, meaning a law should be passed by
Congress to clearly define and effectuate such principles.
In general, therefore, the 1935 provisions were not intended to be self-executing principles ready for
enforcement through the courts. They were rather directives addressed to the executive and to the
legislature. If the executive and the legislature failed to heed the directives of the article, the available
remedy was not judicial but political. The electorate could express their displeasure with the failure of the
executive and the legislature through the language of the ballot. (Bernas, Vol. II, p. 2).
The reasons for denying a cause of action to an alleged infringement of broad constitutional
principles are sourced from basic considerations of due process and the lack of judicial authority to wade
into the uncharted ocean of social and economic policy making. Mr. Justice Florentino P. Feliciano in
his concurring opinion in Oposa vs. Factoran, Jr.,
[26]
explained these reasons as follows:
My suggestion is simply that petitioners must, before the trial court, show a more specific legal right -- a
right cast in language of a significantly lower order of generality than Article II (15) of the Constitution --
that is or may be violated by the actions, or failures to act, imputed to the public respondent by petitioners
so that the trial court can validly render judgment granting all or part of the relief prayed for. To my mind,
the court should be understood as simply saying that such a more specific legal right or rights may well
exist in our corpus of law, considering the general policy principles found in the Constitution and the
existence of the Philippine Environment Code, and that the trial court should have given petitioners an
effective opportunity so to demonstrate, instead of aborting the proceedings on a motion to dismiss.
It seems to me important that the legal right which is an essential component of a cause of action be a
specific, operable legal right, rather than a constitutional or statutory policy, for at least two (2)
reasons. One is that unless the legal right claimed to have been violated or disregarded is given
specification in operational terms, defendants may well be unable to defend themselves intelligently and
effectively; in other words, there are due process dimensions to this matter.
The second is a broader-gauge consideration -- where a specific violation of law or applicable regulation
is not alleged or proved, petitioners can be expected to fall back on the expanded conception of judicial
power in the second paragraph of Section 1 of Article VIII of the Constitution which reads:
Section 1. x x x
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights
which are legally demandable and enforceable, and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality
of the Government. (Emphases supplied)
When substantive standards as general as the right to a balanced and healthy ecology and the right to
health are combined with remedial standards as broad ranging as a grave abuse of discretion amounting
to lack or excess of jurisdiction, the result will be, it is respectfully submitted, to propel courts into the
uncharted ocean of social and economic policy making. At least in respect of the vast area of
environmental protection and management, our courts have no claim to special technical competence
and experience and professional qualification. Where no specific, operable norms and standards are
shown to exist, then the policy making departments -- the legislative and executive departments -- must
be given a real and effective opportunity to fashion and promulgate those norms and standards, and to
implement them before the courts should intervene.
Economic Nationalism Should Be Read with Other Constitutional Mandates to Attain Balanced
Development of Economy
On the other hand, Secs. 10 and 12 of Article XII, apart from merely laying down general principles
relating to the national economy and patrimony, should be read and understood in relation to the other
sections in said article, especially Secs. 1 and 13 thereof which read:
Section 1. The goals of the national economy are a more equitable distribution of opportunities, income,
and wealth; a sustained increase in the amount of goods and services produced by the nation for the
benefit of the people; and an expanding productivity as the key to raising the quality of life for all,
especially the underprivileged.
The State shall promote industrialization and full employment based on sound agricultural development
and agrarian reform, through industries that make full and efficient use of human and natural resources,
and which are competitive in both domestic and foreign markets. However, the State shall protect Filipino
enterprises against unfair foreign competition and trade practices.
In the pursuit of these goals, all sectors of the economy and all regions of the country shall be given
optimum opportunity to develop. x x x
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.
As pointed out by the Solicitor General, Sec. 1 lays down the basic goals of national economic
development, as follows:
1. A more equitable distribution of opportunities, income and wealth;
2. A sustained increase in the amount of goods and services provided by the nation for the benefit of
the people; and
3. An expanding productivity as the key to raising the quality of life for all especially the
underprivileged.
With these goals in context, the Constitution then ordains the ideals of economic nationalism (1) by
expressing preference in favor of qualified Filipinos in the grant of rights, privileges and concessions
covering the national economy and patrimony
[27]
and in the use of Filipino labor, domestic materials and
locally-produced goods; (2) by mandating the State to adopt measures that help make them
competitive;
[28]
and (3) by requiring the State to develop a self-reliant and independent national economy
effectively controlled by Filipinos.
[29]
In similar language, the Constitution takes into account the realities
of the outside world as it requires the pursuit of a trade policy that serves the general welfare and utilizes
all forms and arrangements of exchange on the basis of equality and reciprocity;
[30]
and speaks of
industries which are competitive in both domestic and foreign markets as well as of the protection of
Filipino enterprises against unfair foreign competition and trade practices.
It is true that in the recent case of Manila Prince Hotel vs. Government Service Insurance System, et
al.,
[31]
this Court held that Sec. 10, second par., Art. XII of the 1987 Constitution is a mandatory, positive
command which is complete in itself and which needs no further guidelines or implementing laws or rules
for its enforcement. From its very words the provision does not require any legislation to put it in
operation. It is per se judicially enforceable. However, as the constitutional provision itself states, it is
enforceable only in regard to the grants of rights, privileges and concessions covering national economy
and patrimony and not to every aspect of trade and commerce. It refers to exceptions rather than the
rule. The issue here is not whether this paragraph of Sec. 10 of Art. XII is self-executing or not. Rather,
the issue is whether, as a rule, there are enough balancing provisions in the Constitution to allow the
Senate to ratify the Philippine concurrence in the WTO Agreement. And we hold that there are.
All told, while the Constitution indeed mandates a bias in favor of Filipino goods, services, labor and
enterprises, at the same time, it recognizes the need for business exchange with the rest of the world on
the bases of equality and reciprocity and limits protection of Filipino enterprises only against foreign
competition and trade practices that are unfair.
[32]
In other words, the Constitution did not intend to pursue
an isolationist policy. It did not shut out foreign investments, goods and services in the development of
the Philippine economy. While the Constitution does not encourage the unlimited entry of foreign goods,
services and investments into the country, it does not prohibit them either. In fact, it allows an exchange
on the basis of equality and reciprocity, frowning only on foreign competition that is unfair.
WTO Recognizes Need to Protect Weak Economies
Upon the other hand, respondents maintain that the WTO itself has some built-in advantages to
protect weak and developing economies, which comprise the vast majority of its members. Unlike in the
UN where major states have permanent seats and veto powers in the Security Council, in the WTO,
decisions are made on the basis of sovereign equality, with each members vote equal in weight to that of
any other. There is no WTO equivalent of the UN Security Council.
WTO decides by consensus whenever possible, otherwise, decisions of the Ministerial Conference and
the General Council shall be taken by the majority of the votes cast, except in cases of interpretation of
the Agreement or waiver of the obligation of a member which would require three fourths
vote. Amendments would require two thirds vote in general. Amendments to MFN provisions and the
Amendments provision will require assent of all members. Any member may withdraw from the
Agreement upon the expiration of six months from the date of notice of withdrawals.
[33]

Hence, poor countries can protect their common interests more effectively through the WTO than
through one-on-one negotiations with developed countries. Within the WTO, developing countries can
form powerful blocs to push their economic agenda more decisively than outside the Organization. This
is not merely a matter of practical alliances but a negotiating strategy rooted in law. Thus, the basic
principles underlying the WTO Agreement recognize the need of developing countries like the Philippines
to share in the growth in international trade commensurate with the needs of their economic
development. These basic principles are found in the preamble
[34]
of the WTO Agreement as follows:
The Parties to this Agreement,
Recognizing that their relations in the field of trade and economic endeavour should be conducted with a
view to raising standards of living, ensuring full employment and a large and steadily growing volume of
real income and effective demand, and expanding the production of and trade in goods and services,
while allowing for the optimal use of the worlds resources in accordance with the objective of sustainable
development, seeking both to protect and preserve the environment and to enhance the means for doing
so in a manner consistent with their respective needs and concerns at different levels of economic
development,
Recognizing further that there is need for positive efforts designed to ensure that developing countries,
and especially the least developed among them, secure a share in the growth in international trade
commensurate with the needs of their economic development,
Being desirous of contributing to these objectives by entering into reciprocal and mutually advantageous
arrangements directed to the substantial reduction of tariffs and other barriers to trade and to
the elimination of discriminatory treatment in international trade relations,
Resolved, therefore, to develop an integrated, more viable and durable multilateral trading system
encompassing the General Agreement on Tariffs and Trade, the results of past trade liberalization efforts,
and all of the results of the Uruguay Round of Multilateral Trade Negotiations,
Determined to preserve the basic principles and to further the objectives underlying this multilateral
trading system, x x x. (underscoring supplied.)
Specific WTO Provisos Protect Developing Countries
So too, the Solicitor General points out that pursuant to and consistent with the foregoing basic
principles, the WTO Agreement grants developing countries a more lenient treatment, giving their
domestic industries some protection from the rush of foreign competition. Thus, with respect to tariffs in
general, preferential treatment is given to developing countries in terms of the amount of tariff
reduction and the period within which the reduction is to be spread out. Specifically, GATT requires an
average tariff reduction rate of 36% for developed countries to be effected within a period of six (6)
years while developing countries -- including the Philippines -- are required to effect an average tariff
reduction of only 24% within ten (10) years.
In respect to domestic subsidy, GATT requires developed countries to reduce domestic support to
agricultural products by 20% over six (6) years, as compared to only 13% for developing countries to be
effected within ten (10) years.
In regard to export subsidy for agricultural products, GATT requires developed countries to reduce
their budgetary outlays for export subsidy by 36% and export volumes receiving export subsidy by 21%
within a period of six (6) years. For developing countries, however, the reduction rate is only two-thirds of
that prescribed for developed countries and a longer period of ten (10) years within which to effect such
reduction.
Moreover, GATT itself has provided built-in protection from unfair foreign competition and trade
practices including anti-dumping measures, countervailing measures and safeguards against import
surges. Where local businesses are jeopardized by unfair foreign competition, the Philippines can avail
of these measures. There is hardly therefore any basis for the statement that under the WTO, local
industries and enterprises will all be wiped out and that Filipinos will be deprived of control of the
economy. Quite the contrary, the weaker situations of developing nations like the Philippines have been
taken into account; thus, there would be no basis to say that in joining the WTO, the respondents have
gravely abused their discretion. True, they have made a bold decision to steer the ship of state into the
yet uncharted sea of economic liberalization. But such decision cannot be set aside on the ground
of grave abuse of discretion, simply because we disagree with it or simply because we believe only in
other economic policies. As earlier stated, the Court in taking jurisdiction of this case will not pass upon
the advantages and disadvantages of trade liberalization as an economic policy. It will only perform its
constitutional duty of determining whether the Senate committed grave abuse of discretion.
Constitution Does Not Rule Out Foreign Competition
Furthermore, the constitutional policy of a self-reliant and independent national economy
[35]
does
not necessarily rule out the entry of foreign investments, goods and services. It contemplates neither
economic seclusion nor mendicancy in the international community. As explained by Constitutional
Commissioner Bernardo Villegas, sponsor of this constitutional policy:
Economic self-reliance is a primary objective of a developing country that is keenly aware of
overdependence on external assistance for even its most basic needs. It does not mean autarky or
economic seclusion; rather, it means avoiding mendicancy in the international community. Independence
refers to the freedom from undue foreign control of the national economy, especially in such strategic
industries as in the development of natural resources and public utilities.
[36]

The WTO reliance on most favored nation, national treatment, and trade without discrimination
cannot be struck down as unconstitutional as in fact they are rules of equality and reciprocity that apply to
all WTO members. Aside from envisioning a trade policy based on equality and reciprocity,
[37]
the
fundamental law encourages industries that are competitive in both domestic and foreign markets,
thereby demonstrating a clear policy against a sheltered domestic trade environment, but one in favor of
the gradual development of robust industries that can compete with the best in the foreign
markets. Indeed, Filipino managers and Filipino enterprises have shown capability and tenacity to
compete internationally. And given a free trade environment, Filipino entrepreneurs and managers in
Hongkong have demonstrated the Filipino capacity to grow and to prosper against the best offered under
a policy of laissez faire.
Constitution Favors Consumers, Not Industries or Enterprises
The Constitution has not really shown any unbalanced bias in favor of any business or enterprise,
nor does it contain any specific pronouncement that Filipino companies should be pampered with a total
proscription of foreign competition. On the other hand, respondents claim that WTO/GATT aims to
make available to the Filipino consumer the best goods and services obtainable anywhere in the world at
the most reasonable prices. Consequently, the question boils down to whether WTO/GATT will favor the
general welfare of the public at large.
Will adherence to the WTO treaty bring this ideal (of favoring the general welfare) to reality?
Will WTO/GATT succeed in promoting the Filipinos general welfare because it will -- as promised by
its promoters -- expand the countrys exports and generate more employment?
Will it bring more prosperity, employment, purchasing power and quality products at the most
reasonable rates to the Filipino public?
The responses to these questions involve judgment calls by our policy makers, for which they are
answerable to our people during appropriate electoral exercises. Such questions and the answers thereto
are not subject to judicial pronouncements based on grave abuse of discretion.
Constitution Designed to Meet Future Events and Contingencies
No doubt, the WTO Agreement was not yet in existence when the Constitution was drafted and
ratified in 1987. That does not mean however that the Charter is necessarily flawed in the sense that its
framers might not have anticipated the advent of a borderless world of business. By the same token, the
United Nations was not yet in existence when the 1935 Constitution became effective. Did that
necessarily mean that the then Constitution might not have contemplated a diminution of the
absoluteness of sovereignty when the Philippines signed the UN Charter, thereby effectively surrendering
part of its control over its foreign relations to the decisions of various UN organs like the Security Council?
It is not difficult to answer this question. Constitutions are designed to meet not only the vagaries of
contemporary events. They should be interpreted to cover even future and unknown circumstances. It is
to the credit of its drafters that a Constitution can withstand the assaults of bigots and infidels but at the
same time bend with the refreshing winds of change necessitated by unfolding events. As one eminent
political law writer and respected jurist
[38]
explains:
The Constitution must be quintessential rather than superficial, the root and not the blossom, the base
and framework only of the edifice that is yet to rise. It is but the core of the dream that must take shape,
not in a twinkling by mandate of our delegates, but slowly in the crucible of Filipino minds and hearts,
where it will in time develop its sinews and gradually gather its strength and finally achieve its
substance. In fine, the Constitution cannot, like the goddess Athena, rise full-grown from the brow of the
Constitutional Convention, nor can it conjure by mere fiat an instant Utopia. It must grow with the society
it seeks to re-structure and march apace with the progress of the race, drawing from the vicissitudes of
history the dynamism and vitality that will keep it, far from becoming a petrified rule, a pulsing, living law
attuned to the heartbeat of the nation.
Third Issue: The WTO Agreement and Legislative Power
The WTO Agreement provides that (e)ach Member shall ensure the conformity of its laws,
regulations and administrative procedures with its obligations as provided in the annexed
Agreements.
[39]
Petitioners maintain that this undertaking unduly limits, restricts and impairs Philippine
sovereignty, specifically the legislative power which under Sec. 2, Article VI of the 1987 Philippine
Constitution is vested in the Congress of the Philippines. It is an assault on the sovereign powers of the
Philippines because this means that Congress could not pass legislation that will be good for our national
interest and general welfare if such legislation will not conform with the WTO Agreement, which not only
relates to the trade in goods x x x but also to the flow of investments and money x x x as well as to a
whole slew of agreements on socio-cultural matters x x x.
[40]

More specifically, petitioners claim that said WTO proviso derogates from the power to tax, which is
lodged in the Congress.
[41]
And while the Constitution allows Congress to authorize the President to fix
tariff rates, import and export quotas, tonnage and wharfage dues, and other duties or imposts, such
authority is subject to specified limits and x x x such limitations and restrictions as Congress may
provide,
[42]
as in fact it did under Sec. 401 of the Tariff and Customs Code.
Sovereignty Limited by International Law and Treaties
This Court notes and appreciates the ferocity and passion by which petitioners stressed their
arguments on this issue. However, while sovereignty has traditionally been deemed absolute and all-
encompassing on the domestic level, it is however subject to restrictions and limitations voluntarily agreed
to by the Philippines, expressly or impliedly, as a member of the family of nations. Unquestionably, the
Constitution did not envision a hermit-type isolation of the country from the rest of the world. In its
Declaration of Principles and State Policies, the Constitution adopts the generally accepted principles of
international law as part of the law of the land, and adheres to the policy of peace, equality, justice,
freedom, cooperation and amity, with all nations."
[43]
By the doctrine of incorporation, the country is bound
by generally accepted principles of international law, which are considered to be automatically part of our
own laws.
[44]
One of the oldest and most fundamental rules in international law is pacta sunt servanda--
international agreements must be performed in good faith. A treaty engagement is not a mere moral
obligation but creates a legally binding obligation on the parties x x x. A state which has contracted valid
international obligations is bound to make in its legislations such modifications as may be necessary to
ensure the fulfillment of the obligations undertaken.
[45]

By their inherent nature, treaties really limit or restrict the absoluteness of sovereignty. By their
voluntary act, nations may surrender some aspects of their state power in exchange for greater benefits
granted by or derived from a convention or pact. After all, states, like individuals, live with coequals, and
in pursuit of mutually covenanted objectives and benefits, they also commonly agree to limit the exercise
of their otherwise absolute rights. Thus, treaties have been used to record agreements between States
concerning such widely diverse matters as, for example, the lease of naval bases, the sale or cession of
territory, the termination of war, the regulation of conduct of hostilities, the formation of alliances, the
regulation of commercial relations, the settling of claims, the laying down of rules governing conduct in
peace and the establishment of international organizations.
[46]
The sovereignty of a state therefore cannot
in fact and in reality be considered absolute. Certain restrictions enter into the picture: (1) limitations
imposed by the very nature of membership in the family of nations and (2) limitations imposed by treaty
stipulations. As aptly put by John F. Kennedy, Today, no nation can build its destiny alone. The age of
self-sufficient nationalism is over. The age of interdependence is here.
[47]

UN Charter and Other Treaties Limit Sovereignty
Thus, when the Philippines joined the United Nations as one of its 51 charter members, it consented
to restrict its sovereign rights under the concept of sovereignty as auto-limitation.
47-A
Under Article 2 of
the UN Charter, (a)ll members shall give the United Nations every assistance in any action it takes in
accordance with the present Charter, and shall refrain from giving assistance to any state against which
the United Nations is taking preventive or enforcement action. Such assistance includes payment of its
corresponding share not merely in administrative expenses but also in expenditures for the peace-
keeping operations of the organization. In its advisory opinion of July 20, 1961, the International Court of
Justice held that money used by the United Nations Emergency Force in the Middle East and in the
Congo were expenses of the United Nations under Article 17, paragraph 2, of the UN Charter. Hence,
all its members must bear their corresponding share in such expenses. In this sense, the Philippine
Congress is restricted in its power to appropriate. It is compelled to appropriate funds whether it agrees
with such peace-keeping expenses or not. So too, under Article 105 of the said Charter, the UN and its
representatives enjoy diplomatic privileges and immunities, thereby limiting again the exercise of
sovereignty of members within their own territory. Another example: although sovereign equality and
domestic jurisdiction of all members are set forth as underlying principles in the UN Charter,
such provisos are however subject to enforcement measures decided by the Security Council for the
maintenance of international peace and security under Chapter VII of the Charter. A final example: under
Article 103, (i)n the event of a conflict between the obligations of the Members of the United Nations
under the present Charter and their obligations under any other international agreement, their obligation
under the present charter shall prevail, thus unquestionably denying the Philippines -- as a member --
the sovereign power to make a choice as to which of conflicting obligations, if any, to honor.
Apart from the UN Treaty, the Philippines has entered into many other international pacts -- both
bilateral and multilateral -- that involve limitations on Philippine sovereignty. These are enumerated by
the Solicitor General in his Compliance dated October 24, 1996, as follows:
(a) Bilateral convention with the United States regarding taxes on income, where the Philippines
agreed, among others, to exempt from tax, income received in the Philippines by, among
others, the Federal Reserve Bank of the United States, the Export/Import Bank of the United
States, the Overseas Private Investment Corporation of the United States. Likewise, in said
convention, wages, salaries and similar remunerations paid by the United States to its citizens
for labor and personal services performed by them as employees or officials of the United
States are exempt from income tax by the Philippines.
(b) Bilateral agreement with Belgium, providing, among others, for the avoidance of double taxation
with respect to taxes on income.
(c) Bilateral convention with the Kingdom of Sweden for the avoidance of double taxation.
(d) Bilateral convention with the French Republic for the avoidance of double taxation.
(e) Bilateral air transport agreement with Korea where the Philippines agreed to exempt from all
customs duties, inspection fees and other duties or taxes aircrafts of South Korea and the
regular equipment, spare parts and supplies arriving with said aircrafts.
(f) Bilateral air service agreement with Japan, where the Philippines agreed to exempt from customs
duties, excise taxes, inspection fees and other similar duties, taxes or charges fuel, lubricating
oils, spare parts, regular equipment, stores on board Japanese aircrafts while on Philippine soil.
(g) Bilateral air service agreement with Belgium where the Philippines granted Belgian air carriers
the same privileges as those granted to Japanese and Korean air carriers under separate air
service agreements.
(h) Bilateral notes with Israel for the abolition of transit and visitor visas where the Philippines
exempted Israeli nationals from the requirement of obtaining transit or visitor visas for a sojourn
in the Philippines not exceeding 59 days.
(I) Bilateral agreement with France exempting French nationals from the requirement of obtaining
transit and visitor visa for a sojourn not exceeding 59 days.
(j) Multilateral Convention on Special Missions, where the Philippines agreed that premises of
Special Missions in the Philippines are inviolable and its agents can not enter said premises
without consent of the Head of Mission concerned. Special Missions are also exempted from
customs duties, taxes and related charges.
(k) Multilateral Convention on the Law of Treaties. In this convention, the Philippines agreed to be
governed by the Vienna Convention on the Law of Treaties.
(l) Declaration of the President of the Philippines accepting compulsory jurisdiction of the
International Court of Justice. The International Court of Justice has jurisdiction in all legal
disputes concerning the interpretation of a treaty, any question of international law, the existence
of any fact which, if established, would constitute a breach of international obligation.
In the foregoing treaties, the Philippines has effectively agreed to limit the exercise of its sovereign
powers of taxation, eminent domain and police power. The underlying consideration in this partial
surrender of sovereignty is the reciprocal commitment of the other contracting states in granting the same
privilege and immunities to the Philippines, its officials and its citizens. The same reciprocity
characterizes the Philippine commitments under WTO-GATT.
International treaties, whether relating to nuclear disarmament, human rights, the environment, the law of
the sea, or trade, constrain domestic political sovereignty through the assumption of external
obligations. But unless anarchy in international relations is preferred as an alternative, in most cases we
accept that the benefits of the reciprocal obligations involved outweigh the costs associated with any loss
of political sovereignty. (T)rade treaties that structure relations by reference to durable, well-defined
substantive norms and objective dispute resolution procedures reduce the risks of larger countries
exploiting raw economic power to bully smaller countries, by subjecting power relations to some form of
legal ordering. In addition, smaller countries typically stand to gain disproportionately from trade
liberalization. This is due to the simple fact that liberalization will provide access to a larger set of
potential new trading relationship than in case of the larger country gaining enhanced success to the
smaller countrys market.
[48]

The point is that, as shown by the foregoing treaties, a portion of sovereignty may be waived without
violating the Constitution, based on the rationale that the Philippines adopts the generally accepted
principles of international law as part of the law of the land and adheres to the policy of x x x cooperation
and amity with all nations.
Fourth Issue: The WTO Agreement and J udicial Power
Petitioners aver that paragraph 1, Article 34 of the General Provisions and Basic Principles of the
Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)
[49]
intrudes on the power of
the Supreme Court to promulgate rules concerning pleading, practice and procedures.
[50]

To understand the scope and meaning of Article 34, TRIPS,
[51]
it will be fruitful to restate its full text
as follows:
Article 34
Process Patents: Burden of Proof
1. For the purposes of civil proceedings in respect of the infringement of the rights of the owner
referred to in paragraph 1(b) of Article 28, if the subject matter of a patent is a process for obtaining
a product, the judicial authorities shall have the authority to order the defendant to prove that the
process to obtain an identical product is different from the patented process. Therefore, Members
shall provide, in at least one of the following circumstances, that any identical product when
produced without the consent of the patent owner shall, in the absence of proof to the contrary, be
deemed to have been obtained by the patented process:
(a) if the product obtained by the patented process is new;
(b) if there is a substantial likelihood that the identical product was made by the process and
the owner of the patent has been unable through reasonable efforts to determine the
process actually used.
2. Any Member shall be free to provide that the burden of proof indicated in paragraph 1 shall be on
the alleged infringer only if the condition referred to in subparagraph (a) is fulfilled or only if the
condition referred to in subparagraph (b) is fulfilled.
3. In the adduction of proof to the contrary, the legitimate interests of defendants in protecting their
manufacturing and business secrets shall be taken into account.
From the above, a WTO Member is required to provide a rule of disputable (note the words in the
absence of proof to the contrary) presumption that a product shown to be identical to one produced with
the use of a patented process shall be deemed to have been obtained by the (illegal) use of the said
patented process, (1) where such product obtained by the patented product is new, or (2) where there is
substantial likelihood that the identical product was made with the use of the said patented process but
the owner of the patent could not determine the exact process used in obtaining such identical
product. Hence, the burden of proof contemplated by Article 34 should actually be understood as the
duty of the alleged patent infringer to overthrow such presumption. Such burden, properly understood,
actually refers to the burden of evidence (burden of going forward) placed on the producer of the
identical (or fake) product to show that his product was produced without the use of the patented process.
The foregoing notwithstanding, the patent owner still has the burden of proof since, regardless of
the presumption provided under paragraph 1 of Article 34, such owner still has to introduce evidence of
the existence of the alleged identical product, the fact that it is identical to the genuine one produced by
the patented process and the fact of newness of the genuine product or the fact of substantial
likelihood that the identical product was made by the patented process.
The foregoing should really present no problem in changing the rules of evidence as the present law
on the subject, Republic Act No. 165, as amended, otherwise known as the Patent Law, provides a
similar presumption in cases of infringement of patented design or utility model, thus:
SEC. 60. Infringement. - Infringement of a design patent or of a patent for utility model shall consist in
unauthorized copying of the patented design or utility model for the purpose of trade or industry in the
article or product and in the making, using or selling of the article or product copying the patented design
or utility model. Identity or substantial identity with the patented design or utility model shall constitute
evidence of copying. (underscoring supplied)
Moreover, it should be noted that the requirement of Article 34 to provide a disputable presumption
applies only if (1) the product obtained by the patented process is NEW or (2) there is a substantial
likelihood that the identical product was made by the process and the process owner has not been able
through reasonable effort to determine the process used. Where either of these two provisos does not
obtain, members shall be free to determine the appropriate method of implementing the provisions of
TRIPS within their own internal systems and processes.
By and large, the arguments adduced in connection with our disposition of the third issue --
derogation of legislative power - will apply to this fourth issue also. Suffice it to say that the reciprocity
clause more than justifies such intrusion, if any actually exists. Besides, Article 34 does not contain an
unreasonable burden, consistent as it is with due process and the concept of adversarial dispute
settlement inherent in our judicial system.
So too, since the Philippine is a signatory to most international conventions on patents, trademarks
and copyrights, the adjustment in legislation and rules of procedure will not be substantial.
[52]

Fifth Issue: Concurrence Only in the WTO Agreement and Not in Other Documents Contained in
the Final Act
Petitioners allege that the Senate concurrence in the WTO Agreement and its annexes -- but not in
the other documents referred to in the Final Act, namely the Ministerial Declaration and Decisions and the
Understanding on Commitments in Financial Services -- is defective and insufficient and thus constitutes
abuse of discretion. They submit that such concurrence in the WTO Agreement alone is flawed because
it is in effect a rejection of the Final Act, which in turn was the document signed by Secretary Navarro, in
representation of the Republic upon authority of the President. They contend that the second letter of the
President to the Senate
[53]
which enumerated what constitutes the Final Act should have been the subject
of concurrence of the Senate.
A final act, sometimes called protocol de clture, is an instrument which records the winding up of
the proceedings of a diplomatic conference and usually includes a reproduction of the texts of treaties,
conventions, recommendations and other acts agreed upon and signed by the plenipotentiaries attending
the conference.
[54]
It is not the treaty itself. It is rather a summary of the proceedings of a protracted
conference which may have taken place over several years. The text of the Final Act Embodying the
Results of the Uruguay Round of Multilateral Trade Negotiations is contained in just one page
[55]
in Vol. I
of the 36-volume Uruguay Round of Multilateral Trade Negotiations. By signing said Final Act, Secretary
Navarro as representative of the Republic of the Philippines undertook:
"(a) to submit, as appropriate, the WTO Agreement for the consideration of their respective
competent authorities with a view to seeking approval of the Agreement in accordance with their
procedures; and
(b) to adopt the Ministerial Declarations and Decisions."
The assailed Senate Resolution No. 97 expressed concurrence in exactly what the Final Act required
from its signatories, namely, concurrence of the Senate in the WTO Agreement.
The Ministerial Declarations and Decisions were deemed adopted without need for ratification. They
were approved by the ministers by virtue of Article XXV: 1 of GATT which provides that representatives of
the members can meet to give effect to those provisions of this Agreement which invoke joint action, and
generally with a view to facilitating the operation and furthering the objectives of this Agreement.
[56]

The Understanding on Commitments in Financial Services also approved in Marrakesh does not
apply to the Philippines. It applies only to those 27 Members which have indicated in their respective
schedules of commitments on standstill, elimination of monopoly, expansion of operation of existing
financial service suppliers, temporary entry of personnel, free transfer and processing of information, and
national treatment with respect to access to payment, clearing systems and refinancing available in the
normal course of business.
[57]

On the other hand, the WTO Agreement itself expresses what multilateral agreements are deemed
included as its integral parts,
[58]
as follows:
Article II
Scope of the WTO
1. The WTO shall provide the common institutional framework for the conduct of trade relations
among its Members in matters to the agreements and associated legal instruments included in the
Annexes to this Agreement.
2. The Agreements and associated legal instruments included in Annexes 1, 2, and 3 (hereinafter
referred to as Multilateral Agreements) are integral parts of this Agreement, binding on all
Members.
3. The Agreements and associated legal instruments included in Annex 4 (hereinafter referred to as
Plurilateral Trade Agreements) are also part of this Agreement for those Members that have
accepted them, and are binding on those Members. The Plurilateral Trade Agreements do not
create either obligation or rights for Members that have not accepted them.
4. The General Agreement on Tariffs and Trade 1994 as specified in annex 1A (hereinafter referred
to as GATT 1994) is legally distinct from the General Agreement on Tariffs and Trade, dated 30
October 1947, annexed to the Final Act adopted at the conclusion of the Second Session of the
Preparatory Committee of the United Nations Conference on Trade and Employment, as
subsequently rectified, amended or modified (hereinafter referred to as GATT 1947).
It should be added that the Senate was well-aware of what it was concurring in as shown by the
members deliberation on August 25, 1994. After reading the letter of President Ramos dated August 11,
1994,
[59]
the senators of the Republic minutely dissected what the Senate was concurring in, as
follows:
[60]

THE CHAIRMAN: Yes. Now, the question of the validity of the submission came up in the first day
hearing of this Committee yesterday. Was the observation made by Senator Taada that what was
submitted to the Senate was not the agreement on establishing the World Trade Organization by the final
act of the Uruguay Round which is not the same as the agreement establishing the World Trade
Organization? And on that basis, Senator Tolentino raised a point of order which, however, he agreed to
withdraw upon understanding that his suggestion for an alternative solution at that time was
acceptable. That suggestion was to treat the proceedings of the Committee as being in the nature of
briefings for Senators until the question of the submission could be clarified.
And so, Secretary Romulo, in effect, is the President submitting a new... is he making a new submission
which improves on the clarity of the first submission?
MR. ROMULO: Mr. Chairman, to make sure that it is clear cut and there should be no misunderstanding,
it was his intention to clarify all matters by giving this letter.
THE CHAIRMAN: Thank you.
Can this Committee hear from Senator Taada and later on Senator Tolentino since they were the ones
that raised this question yesterday?
Senator Taada, please.
SEN. TAADA: Thank you, Mr. Chairman.
Based on what Secretary Romulo has read, it would now clearly appear that what is being submitted to
the Senate for ratification is not the Final Act of the Uruguay Round, but rather the Agreement on the
World Trade Organization as well as the Ministerial Declarations and Decisions, and the Understanding
and Commitments in Financial Services.
I am now satisfied with the wording of the new submission of President Ramos.
SEN. TAADA. . . . of President Ramos, Mr. Chairman.
THE CHAIRMAN. Thank you, Senator Taada. Can we hear from Senator Tolentino? And after him
Senator Neptali Gonzales and Senator Lina.
SEN TOLENTINO, Mr. Chairman, I have not seen the new submission actually transmitted to us but I saw
the draft of his earlier, and I think it now complies with the provisions of the Constitution, and with the
Final Act itself. The Constitution does not require us to ratify the Final Act. It requires us to ratify the
Agreement which is now being submitted. The Final Act itself specifies what is going to be submitted to
with the governments of the participants.
In paragraph 2 of the Final Act, we read and I quote:
By signing the present Final Act, the representatives agree: (a) to submit as appropriate the WTO
Agreement for the consideration of the respective competent authorities with a view to seeking approval
of the Agreement in accordance with their procedures.
In other words, it is not the Final Act that was agreed to be submitted to the governments for ratification or
acceptance as whatever their constitutional procedures may provide but it is the World Trade
Organization Agreement. And if that is the one that is being submitted now, I think it satisfies both the
Constitution and the Final Act itself.
Thank you, Mr. Chairman.
THE CHAIRMAN. Thank you, Senator Tolentino, May I call on Senator Gonzales.
SEN. GONZALES. Mr. Chairman, my views on this matter are already a matter of record. And they had
been adequately reflected in the journal of yesterdays session and I dont see any need for repeating the
same.
Now, I would consider the new submission as an act ex abudante cautela.
THE CHAIRMAN. Thank you, Senator Gonzales. Senator Lina, do you want to make any comment on
this?
SEN. LINA. Mr. President, I agree with the observation just made by Senator Gonzales out of the
abundance of question. Then the new submission is, I believe, stating the obvious and therefore I have
no further comment to make.
Epilogue
In praying for the nullification of the Philippine ratification of the WTO Agreement, petitioners are
invoking this Courts constitutionally imposed duty to determine whether or not there has been grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of the Senate in giving its
concurrence therein via Senate Resolution No. 97. Procedurally, a writ of certiorari grounded on grave
abuse of discretion may be issued by the Court under Rule 65 of the Rules of Court when it is amply
shown that petitioners have no other plain, speedy and adequate remedy in the ordinary course of law.
By grave abuse of discretion is meant such capricious and whimsical exercise of judgment as is
equivalent to lack of jurisdiction.
[61]
Mere abuse of discretion is not enough. It must be grave abuse of
discretion as when the power is exercised in an arbitrary or despotic manner by reason of passion or
personal hostility, and must be so patent and so gross as to amount to an evasion of a positive duty or to
a virtual refusal to perform the duty enjoined or to act at all in contemplation of law.
[62]
Failure on the part
of the petitioner to show grave abuse of discretion will result in the dismissal of the petition.
[63]

In rendering this Decision, this Court never forgets that the Senate, whose act is under review, is one
of two sovereign houses of Congress and is thus entitled to great respect in its actions. It is itself a
constitutional body independent and coordinate, and thus its actions are presumed regular and done in
good faith. Unless convincing proof and persuasive arguments are presented to overthrow such
presumptions, this Court will resolve every doubt in its favor. Using the foregoing well-accepted definition
of grave abuse of discretion and the presumption of regularity in the Senates processes, this Court
cannot find any cogent reason to impute grave abuse of discretion to the Senates exercise of its power of
concurrence in the WTO Agreement granted it by Sec. 21 of Article VII of the Constitution.
[64]

It is true, as alleged by petitioners, that broad constitutional principles require the State to develop an
independent national economy effectively controlled by Filipinos; and to protect and/or prefer Filipino
labor, products, domestic materials and locally produced goods. But it is equally true that such principles
-- while serving as judicial and legislative guides -- are not in themselves sources of causes of
action. Moreover, there are other equally fundamental constitutional principles relied upon by the Senate
which mandate the pursuit of a trade policy that serves the general welfare and utilizes all forms and
arrangements of exchange on the basis of equality and reciprocity and the promotion of industries which
are competitive in both domestic and foreign markets, thereby justifying its acceptance of said treaty. So
too, the alleged impairment of sovereignty in the exercise of legislative and judicial powers is balanced by
the adoption of the generally accepted principles of international law as part of the law of the land and the
adherence of the Constitution to the policy of cooperation and amity with all nations.
That the Senate, after deliberation and voting, voluntarily and overwhelmingly gave its consent to the
WTO Agreement thereby making it a part of the law of the land is a legitimate exercise of its sovereign
duty and power. We find no patent and gross arbitrariness or despotism by reason of passion or
personal hostility in such exercise. It is not impossible to surmise that this Court, or at least some of its
members, may even agree with petitioners that it is more advantageous to the national interest to strike
down Senate Resolution No. 97. But that is not a legal reason to attribute grave abuse of discretion to
the Senate and to nullify its decision. To do so would constitute grave abuse in the exercise of our own
judicial power and duty. Ineludably, what the Senate did was a valid exercise of its authority. As to
whether such exercise was wise, beneficial or viable is outside the realm of judicial inquiry and
review. That is a matter between the elected policy makers and the people. As to whether the nation
should join the worldwide march toward trade liberalization and economic globalization is a matter that
our people should determine in electing their policy makers. After all, the WTO Agreement allows
withdrawal of membership, should this be the political desire of a member.
The eminent futurist John Naisbitt, author of the best seller Megatrends, predicts an Asian
Renaissance
[65]
where the East will become the dominant region of the world economically, politically and
culturally in the next century. He refers to the free market espoused by WTO as the catalyst in this
coming Asian ascendancy. There are at present about 31 countries including China, Russia and Saudi
Arabia negotiating for membership in the WTO. Notwithstanding objections against possible limitations
on national sovereignty, the WTO remains as the only viable structure for multilateral trading and the
veritable forum for the development of international trade law. The alternative to WTO is isolation,
stagnation, if not economic self-destruction. Duly enriched with original membership, keenly aware of
the advantages and disadvantages of globalization with its on-line experience, and endowed with a vision
of the future, the Philippines now straddles the crossroads of an international strategy for economic
prosperity and stability in the new millennium. Let the people, through their duly authorized elected
officers, make their free choice.
WHEREFORE, the petition is DISMISSED for lack of merit.
SO ORDERED.
Narvasa, C.J., Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Kapunan, Mendoza,
Francisco, Hermosisima, Jr., and Torres, Jr., JJ., concur.
Padilla, and Vitug, JJ., in the result.



[1]
In Annex A of her Memorandum, dated August 8, 1996, received by this Court on August 12, 1996,
Philippine Ambassador to the United Nations, World Trade Organization and other international
organizations Lilia R. Bautista (hereafter referred to as Bautista Paper) submitted a 46-year
Chronology of GATT as follows:
1947 The birth of GATT. On 30 October 1947, the General Agreement on Tariffs
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 from being frustrated by restrictive trade measures.
The 23 founding contracting parties were members of the Preparatory Committee
established by the United Nations Economic and Social Council in 1946 to draft
the charter of the International Trade Organization (ITO). The ITO was
envisaged as 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 - later the World Bank).
In parallel with this task, the Committee members decided to negotiate tariff concessions
among themselves. From April to October 1947, the participants completed
some 123 negotiations and established 20 schedules containing the tariff
reductions and bindings which became an integral part of GATT. These
schedules resulting 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 commercial-
policy provisions of the ITO. In November, delegations from 56 countries met in
Havana, Cuba, to consider the ITO draft as a whole. After long and difficult
negotiations, some 53 countries signed the Final Act authenticating the text of
the Havana Charter in March 1948. There was no commitment, however, from
governments to ratification and, in the end, the ITO was stillborn, leaving GATT
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 founding
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
Kingdom and United States. The first Session of the contracting parties was held
from February to March in Havana, Cuba. The secretariat of the Interim
Commission for the ITO, which served as the ad hocsecretariat of GATT, move
from lake Placid, New York, to Geneva. The Contracting Parties held their
second session in Geneva 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
some 5,000 tariff concession. At their third Session, they also dealt with the
accession of ten more countries.
1950 Third Round At Torquay. From September 1950 to April 1951, the contracting
parties exchange some 8,700 tariff concessions in the English town, yielding tariff
reduction of about 25 per cent in relation to the 1948 level. Four more countries
acceded to GATT. During the fifth Session of the Contracting Parties, 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
produce 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
inaugurated.
1958 The Haberler Report. GATT published Trends in International Trade in
October. Known as the "Haberler Report" in honour of Professor Gottfried
Haberler, the chairman of the panel of imminent economist, it provided initial
guidelines for the work of GATT. The Contracting Parties at their 13th Sessions,
attended by Ministers, subsequently established 3 committees in
GATT: Committee I to convene a further tariff negotiating conference;
Committee II To review the agricultural policies of member governments and
Committee III to tackle the problems facing developing countries in their
trade. The establishment of the European Economic Community during the
previous year also demanded large scale tariff negotiation under Article XXIV 6
of the General Agreement.
1960 The Dillon Round. The fifth Round opened in September and was divided into
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
External 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 negotiations, the Round was concluded in July 1962 and
resulted in about 4,400 tariff concessions covering $4.9 billion of trade.
1961 The Short-Term Arrangement covering cotton textiles was agreed as an
exception to the GATT rules. The arrangement permitted the negotiation of
quota restrictions affecting the exports of cotton-producing countries. In 1962 the
"Short Term " Arrangement become the "Long term" Arrangement, lasting until
1974 when 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 Final 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 product-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. Concessions 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
Agreement of many newly-independent developing countries. In February, the
Contracting Parties, meeting in a special session, adopted the text of Part IV on
Trade and Development. The additional chapter to the GATT required
developed countries to accord high priority to the reduction of trade barriers to
products of developing countries. A committee on Trade and Development was
established to oversee the functioning of the new GATT provisions. In the
preceding year, GATT had 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 Development (UNCTAD).
1973 The Tokyo Round. The seventh Round was launched by Ministers in
September at the Japanese capital. Some 99 countries participated in
negotiating a comprehensive body of agreements covering both tariff and non-
tariff matters. At the end of the Round in November 1979, participants exchange
tariff reduction and 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 major Industrial Markets declined from 7.0 to 4.7 per
cent. Agreements were reached in the following areas; subsidies and
countervailing measures, technical barriers to trade, import licensing procedures,
government procurement, customs valuation, 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 reduction of import duties and other trade
barriers by industrial countries on tropical products exported by developing
countries.
1974 On 1 January 1974, the Arrangement Regarding International Trade in textiles,
otherwise known as the Multifibre Arrangement (MFA), entered into force. Its
superseded the arrangement that had been governing trade in cotton textiles
since 1961. The MFA seeks to promote the expansion and progressive
liberalization of trade in textile product while at the same time avoiding disruptive
effects 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 of textiles and clothing which in 1986 amounted to US$128 billion.
1982 Ministerial Meeting. Meeting for the first time in nearly ten years, the GATT
Ministers in November at Geneva reaffirmed the validity of GATT rules for the
conduct of international trade and committed themselves to combating
protectionist 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, declarations, while representing a single
political undertaking, was divided into two section. The First covered
negotiations on Trade in goods and the second initiated negotiation on trade in
services. In the area of trade in goods, the Ministers committed themselves to
a "standstill" on new trade measures inconsistent with their GATT obligations
and to a "rollback" programme aimed at phasing out existing inconsistent
measures. Envisaged to last four years, negotiations started in early February
1987 in the following areas: tariffs, non-tariff measures, tropical products, natural
resource-based products, textiles and clothing, agriculture, subsidies,
safeguards, trade-related aspects of intellectual property rights including trade in
counterfeit goods, in trade- related investment measures. 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 January 1995. It is
agreed that there be a one year transition period during which certain GATT 1947 bodies
and commitments would co-exist with those of the World Trade 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, Peoples Republic
of Bangladesh, Barbados, The Kingdom of Belgium, Belize, Republic of Benin, Bolivia, Botswana,
Brazil, Brunei Darussalam, Burkina Faso, Burundi, Cameroon, Canada, Central African Republic,
Chad, Chile, Peoples Republic of China, Colombia, Congo, Costa Rica, Republic of Cote
dIvoire, Cuba, Cyprus, Czech Republic, Kingdom of Denmark, Commonwealth of Dominica,
Dominican Republic, Arab Republic of Egypt, El Salvador, European Communities, Republic of
Fiji, Finland, French Republic, Gabonese Republic, Gambia, Federal Republic 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, Malaysia, Republic of Maldives, Republic of Mali, Republic of Malta, Islamic Republic of
Mauritania, Republic of Mauritius, United Mexican States, Kingdom of Morocco, Republic of
Mozambique, Union of Myanmar, Republic of Namibia, Kingdom of the Netherlands, New
Zealand, Nicaragua, Republic of Niger, Federal Republic of Nigeria, 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 Socialist Republic of Sri Lanka, Republic of Surinam, Kingdom of Swaziland,
Kingdom of Sweden, Swiss Confederation, United Republic of Tanzania, Kingdom of Thailand,
Togolese Republic, Republic of Trinidad and Tobago, Tunisia, Turkey, Uganda, United Arab
Emirates, United Kingdom of Great Britain and Northern Ireland, United 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. Navarro for the Philippines on 15 April
1994 in Marrakesh, Morocco.
The Uruguay Round Final Act aims to liberalize and expand world trade and strengthen 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 particularly agricultural and industrial
products. These concessions may be availed of by 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
normal increase in exports that the Philippines may experience.
The Final Act will also open up new opportunities for the services sector in such areas as the movement
of personnel, (e.g. professional services and construction 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 countervailing measures will also
benefit Philippine exporters by reducing the costs and uncertainty 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 vulnerable to unilateral actions by its trading
partners (e.g. Sec. 301 of the United States 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 Constitution.
A draft of a proposed Resolution giving its concurrence to the aforesaid Agreement 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. Navarro for the Philippines
on 13 April 1994 in Marrakech (sic), Morocco.
Members of the trade negotiations committee, which included the Philippines, agreed that
the Agreement Establishing the World Trade Organization, the Ministerial Declarations and
Decisions, and the Understanding on Commitments in Financial Services embody the results of
their negotiations and form an integral part of the Uruguay Round Final Act.
By signing the Uruguay Round Final Act, the Philippines, through Secretary Navarro,
agreed:
(a) To submit the Agreement Establishing the World Trade Organization to the Senate 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 strengthen 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 particularly agricultural and
industrial products. These concessions may be availed of by 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 normal increase in the exports that the Philippines may experience.
The Final Act will also open up new opportunities for the services sector in such areas as
the movement of personnel, (e.g., professional services and construction 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 countervailing
measures will also benefit Philippine exporters by reducing the costs and uncertainty 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 vulnerable to unilateral actions
by its trading partners (e.g., Sec. 301 of the United States Omnibus Trade Law).
In view of the foregoing, the Uruguay Round Final Act, the Agreement Establishing the
World Trade Organization, the Ministerial Declarations and Decisions, and the Understanding on
Commitments in Financial Services, as embodied in the Uruguay 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 Constitution.
A draft of a proposed Resolution giving its concurrence to the aforesaid Agreement 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 hereby certify to
the necessity of the immediate adoption of P.S. 1083, entitled:
CONCURRING IN THE RATIFICATION OF THE AGREEMENT ESTABLISHING THE WORLD TRADE
ORGANIZATION
to meet a public emergency consisting of the need for immediate membership in the WTO in
order to assure the benefits to the Philippine economy arising from such 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 Whole 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 petitioners dated January 28, 1997.
[7]
The Philippines is thus considered an original or founding member of WTO, which as of July 26, 1996
had 123 members as follows: Antigua and Barbuda, Argentina, Australia, Austria, Bahrain,
Bangladesh, Barbados, Belgium, Belize, Benin, Bolivia, Botswana, Brazil, Brunei Darussalam,
Burkina Faso, Burundi, Cameroon, Canada, Central African Republic, Chili, Colombia, Costa
Rica, Cote dIvoire, Cuba, Cyprus, Czech Republic, Denmark, Djibouti, Dominica, Dominican
Republic, Ecuador, Egypt, El Salvador, European Community, Fiji, Finland, France, Gabon,
Germany, Ghana, Greece, Grenada, Guatemala, Guinea, Guinea Bissau, Guyana, Haiti,
Honduras, Hongkong, Hungary, Iceland, India, Indonesia, Ireland, Israel, Italy, Jamaica, Japan,
Kenya, Korea, Kuwait, Lesotho, Liechtenstein, Luxembourg, Macau, Madagascar, 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, Pakistan, Papua New Guinea, Paraguay, Peru, Philippines,
Poland, Portugal, Qatar, Romania, Rwanda, Saint Kitts and Nevis, Saint Lucia, Saint Vincent &
the Grenadines, Senegal, Sierra Leone, Singapore, Slovak Republic, Slovenia, Solomon Islands,
South Africa, Spain, Sri Lanka, Surinam, Swaziland, Sweden, Switzerland, Tanzania, Thailand,
Togo, Trinidad and Tobago, Tunisia, Turkey, Uganda, United Arab Emirates, 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
Bautista Paper) consisting of 56 pages excluding annexes. This 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 Vicente V. Mendoza in Tatad vs. Garcia,
Jr., 243 SCRA 473, April 6, 1995, as well as 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 in 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 discussion on the scope of
political question.
[15]
Section 1, Article VIII, (par. 2).
[16]
In a privilege speech on May 17, 1993, entitled Supreme Court -- Potential Tyrant? Senator Arturo
Tolentino concedes that this new provision gives the Supreme Court a duty to intrude into the
jurisdiction of the Congress or the President.
[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 Negotiations, Vol. 1, p. 146.
[21]
Also entitled Declaration of Principles. The nomenclature in the 1973 Charter is identical with that in
the 1987s.
[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. 122156, February 3, 1997, p. 8, it was held that
A provision which lays down a general principle, such as those found in Art. II of the 1987
Constitution, is usually not self-executing.
[24]
246 SCRA 540, 564, July 17, 1995. See also Tolentino vs. Secretary of Finance, 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, A
Quintessential Constitution earlier published in the 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, 1969.
[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:
Final 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 Negotiations, representatives
of the governments and of the European Communities, members of the Trade Negotiations
Committee, agree that the Agreement Establishing the World Trade Organization (referred to in
the Final Act as the WTO Agreement), the Ministerial Declarations and Decisions, and the
Understanding on Commitments in Financial Services, as annexed hereto, embody the results of
their negotiations and form an integral part of this Final Act.
2. By signing to the present Final Act, the representatives agree.
(a) to submit, as appropriate, the WTO Agreement for the consideration of their respective competent
authorities with a view to seeking approval of the Agreement in accordance with their procedures;
and
(b) to adopt the Ministerial Declarations and Decisions.
3. The representatives agree on the desirability of acceptance of the WTO Agreement by all participants
in the Uruguay Round of Multilateral Trade Negotiations (hereinafter referred to as participants)
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 Este
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 acceptance as a whole, by
signature or otherwise, by all participants pursuant to Article XIV thereof. The acceptance and
entry into force of a Plurilateral Trade Agreement included in Annex 4 of the WTO Agreement
shall be governed by the provisions of that Plurilateral Trade Agreement.
5. Before accepting the WTO Agreement, participants which are not contracting parties to the General
Agreement on Tariffs and Trade must first have concluded negotiations for their accession to the
General Agreement and become contracting parties thereto. For participants which are not
contracting parties to the general 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
General Agreement and acceptance of the WTO Agreement.
6. This Final Act and the Texts annexed hereto shall be deposited with the Director-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 ninety-four, in a single
copy, in the English, French and Spanish languages, each text 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, Respondent 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 March 20, 1991; Simon vs. Civil
Service Commission, 215 SCRA 410, November 5, 1992; 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]
Sec. 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.
[65]
Readers Digest, December 1996 issue, p. 28.






EN BANC


SENATOR AQUILINO PIMENTEL, JR., G.R. No. 158088
REP. ETTA ROSALES, PHILIPPINE
COALITION FOR THE ESTABLISHMENT
OF THE INTERNATIONAL Present:
CRIMINAL COURT, TASK FORCE
DETAINEES OF THE PHILIPPINES, Davide, Jr., C.J .,
FAMILIES OF VICTIMS OF Puno,
INVOLUNTARY DISAPPEARANCES, Panganiban,
BIANCA HACINTHA R. ROQUE, Quisumbing,
HARRISON JACOB R. ROQUE, Ynares-Santiago,
AHMED PAGLINAWAN, RON P. SALO,
*
Sandoval-Gutierrez,
LEAVIDES G. DOMINGO, EDGARDO *Carpio,
CARLO VISTAN, NOEL VILLAROMAN, Austria-Martinez,
CELESTE CEMBRANO, LIZA ABIERA, *Corona,
JAIME ARROYO, MARWIL LLASOS, Carpio Morales,
CRISTINA ATENDIDO, ISRAFEL Callejo, Sr.,
FAGELA, and ROMEL BAGARES, Azcuna,
Petitioners, Tinga,
Chico-Nazario, and
- versus - Garcia, J J .

OFFICE OF THE EXECUTIVE
SECRETARY, represented by Promulgated:
HON. ALBERTO ROMULO, and the
DEPARTMENT OF FOREIGN
AFFAIRS, represented by HON. BLAS OPLE, July 6, 2005
Respondents.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

PUNO J .:


This is a petition for mandamus filed by petitioners to compel the
Office of the Executive Secretary and the Department of Foreign Affairs to transmit the signed copy of the
Rome Statute of the International Criminal Court to the Senate of the Philippines for its concurrence in
accordance with Section 21, Article VII of the 1987 Constitution.
The Rome Statute established the International Criminal Court which shall have the power to
exercise its jurisdiction over persons for the most serious crimes of international concern xxx and shall be
complementary to the national criminal jurisdictions.
[1]
Its jurisdiction covers the crime of genocide,
crimes against humanity, war crimes and the crime of aggression as defined in the Statute.
[2]
The Statute
was opened for signature by all states in Rome on July 17, 1998 and had remained open for signature
until December 31, 2000 at the United Nations Headquarters in New York. The Philippines signed the
Statute on December 28, 2000 through Charge d Affairs Enrique A. Manalo of the Philippine Mission to
the United Nations.
[3]
Its provisions, however, require that it be subject to ratification, acceptance or
approval of the signatory states.
[4]

Petitioners filed the instant petition to compel the respondents the Office of the Executive
Secretary and the Department of Foreign Affairs to transmit the signed text of the treaty to the Senate
of the Philippines for ratification.
It is the theory of the petitioners that ratification of a treaty, under both domestic law and
international law, is a function of the Senate. Hence, it is the duty of the executive department to transmit
the signed copy of the Rome Statute to the Senate to allow it to exercise its discretion with respect to
ratification of treaties. Moreover, petitioners submit that the Philippines has a ministerial duty to ratify the
Rome Statute under treaty law and customary international law. Petitioners invoke the Vienna
Convention on the Law of Treaties enjoining the states to refrain from acts which would defeat the object
and purpose of a treaty when they have signed the treaty prior to ratification unless they have made their
intention clear not to become parties to the treaty.
[5]

The Office of the Solicitor General, commenting for the respondents, questioned the standing of the
petitioners to file the instant suit. It also contended that the petition at bar violates the rule on hierarchy of
courts. On the substantive issue raised by petitioners, respondents argue that the executive department
has no duty to transmit the Rome Statute to the Senate for concurrence.
A petition for mandamus may be filed when any tribunal, corporation, board, officer or person
unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from
an office, trust, or station.
[6]
We have held that to be given due course, a petition for mandamus must
have been instituted by a party aggrieved by the alleged inaction of any tribunal, corporation, board or
person which unlawfully excludes said party from the enjoyment of a legal right. The petitioner in every
case must therefore be an aggrieved party in the sense that he possesses a clear legal right to be
enforced and a direct interest in the duty or act to be performed.
[7]
The Court will exercise its power of
judicial review only if the case is brought before it by a party who has the legal standing to raise the
constitutional or legal question. Legal standing means a personal and substantial interest in the case
such that the party has sustained or will sustain direct injury as a result of the government act that is
being challenged. The term interest is material interest, an interest in issue and to be affected by the
decree, as distinguished from mere interest in the question involved, or a mere incidental interest.
[8]

The petition at bar was filed by Senator Aquilino Pimentel, Jr. who asserts his legal standing to file
the suit as member of the Senate; Congresswoman Loretta Ann Rosales, a member of the House of
Representatives and Chairperson of its Committee on Human Rights; the Philippine Coalition for the
Establishment of the International Criminal Court which is composed of individuals and corporate entities
dedicated to the Philippine ratification of the Rome Statute; the Task Force Detainees of the Philippines, a
juridical entity with the avowed purpose of promoting the cause of human rights and human rights victims
in the country; the Families of Victims of Involuntary Disappearances, a juridical entity duly organized and
existing pursuant to Philippine Laws with the avowed purpose of promoting the cause of families and
victims of human rights violations in the country; Bianca Hacintha Roque and Harrison Jacob Roque,
aged two (2) and one (1), respectively, at the time of filing of the instant petition, and suing under the
doctrine of inter-generational rights enunciated in the case of Oposa vs. Factoran, Jr.;
[9]
and a group of
fifth year working law students from the University of the Philippines College of Law who are suing as
taxpayers.
The question in standing is whether a party has alleged such a personal stake in the outcome of
the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon
which the court so largely depends for illumination of difficult constitutional questions.
[10]

We find that among the petitioners, only Senator Pimentel has the legal standing to file the instant
suit. The other petitioners maintain their standing as advocates and defenders of human rights, and as
citizens of the country. They have not shown, however, that they have sustained or will sustain a direct
injury from the non-transmittal of the signed text of the Rome Statute to the Senate. Their contention that
they will be deprived of their remedies for the protection and enforcement of their rights does not
persuade. The Rome Statute is intended to complement national criminal laws and courts. Sufficient
remedies are available under our national laws to protect our citizens against human rights violations and
petitioners can always seek redress for any abuse in our domestic courts.
As regards Senator Pimentel, it has been held that to the extent the powers of Congress are
impaired, so is the power of each member thereof, since his office confers a right to participate in the
exercise of the powers of that institution.
[11]
Thus, legislators have the standing to maintain inviolate the
prerogatives, powers and privileges vested by the Constitution in their office and are allowed to sue to
question the validity of any official action which they claim infringes their prerogatives as legislators. The
petition at bar invokes the power of the Senate to grant or withhold its concurrence to a treaty entered into
by the executive branch, in this case, the Rome Statute. The petition seeks to order the executive branch
to transmit the copy of the treaty to the Senate to allow it to exercise such authority. Senator Pimentel, as
member of the institution, certainly has the legal standing to assert such authority of the Senate.
We now go to the substantive issue.
The core issue in this petition for mandamus is whether the Executive Secretary and the
Department of Foreign Affairs have a ministerial duty to transmit to the Senate the copy of the Rome
Statute signed by a member of the Philippine Mission to the United Nations even without the signature of
the President.
We rule in the negative.
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 countrys sole representative with foreign nations.
[12]
As the
chief architect of foreign policy, the President acts as the countrys mouthpiece with respect to
international affairs. Hence, the President is vested with the authority to deal with foreign states and
governments, extend or withhold recognition, maintain diplomatic relations, enter into treaties, and
otherwise transact the business of foreign relations.
[13]
In the realm of treaty-making, the President has
the sole authority to negotiate with other states.
Nonetheless, while the President has the sole authority to negotiate and enter into treaties, the
Constitution provides a limitation to his power by requiring the concurrence of 2/3 of all the members of
the Senate for the validity of the treaty entered into by him. Section 21, Article VII of the 1987
Constitution provides that 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. The 1935 and the 1973 Constitution
also required the concurrence by the legislature to the treaties entered into by the executive. Section 10
(7), Article VII of the 1935 Constitution provided:
Sec. 10. (7) The President shall have the power, with the concurrence of two-
thirds of all the Members of the Senate, to make treaties xxx.

Section 14 (1) Article VIII of the 1973 Constitution stated:
Sec. 14. (1) Except as otherwise provided in this Constitution, no treaty shall be
valid and effective unless concurred in by a majority of all the Members of the Batasang
Pambansa.

The participation of the legislative branch in the treaty-making process was deemed essential to
provide a check on the executive in the field of foreign relations.
[14]
By requiring the concurrence of the
legislature in the treaties entered into by the President, the Constitution ensures a healthy system of
checks and balance necessary in the nations pursuit of political maturity and growth.
[15]

In filing this petition, the petitioners interpret Section 21, Article VII of the 1987 Constitution to mean
that the power to ratify treaties belongs to the Senate.
We disagree.
Justice Isagani Cruz, in his book on International Law, describes the treaty-making process in this
wise:
The usual steps in the treaty-making process are: negotiation, signature,
ratification, and exchange of the instruments of ratification. The treaty may then be
submitted for registration and publication under the U.N. Charter, although this step is not
essential to the validity of the agreement as between the parties.

Negotiation may be undertaken directly by the head of state but he now usually
assigns this task to his authorized representatives. These representatives are provided
with credentials known as full powers, which they exhibit to the other negotiators at the
start of the formal discussions. It is standard practice for one of the parties to submit a
draft of the proposed treaty which, together with the counter-proposals, becomes the
basis of the subsequent negotiations. The negotiations may be brief or protracted,
depending on the issues involved, and may even collapse in case the parties are
unable to come to an agreement on the points under consideration.

If and when the negotiators finally decide on the terms of the treaty, the same is
opened for signature. This step is primarily intended as a means of authenticating the
instrument and for the purpose of symbolizing the good faith of the parties; but,
significantly, it does not indicate the final consent of the state in cases where
ratification of the treaty is required. The document is ordinarily signed in accordance
with thealternat, that is, each of the several negotiators is allowed to sign first on the copy
which he will bring home to his own state.

Ratification, which is the next step, is the formal act by which a state confirms and
accepts the provisions of a treaty concluded by its representatives. The purpose of
ratification is to enable the contracting states to examine the treaty more closely
and to give them an opportunity to refuse to be bound by it should they find it
inimical to their interests. It is for this reason that most treaties are made subject
to the scrutiny and consent of a department of the government other than that
which negotiated them.

x x x

The last step in the treaty-making process is the exchange of the instruments of
ratification, which usually also signifies the effectivity of the treaty unless a different date
has been agreed upon by the parties. Where ratification is dispensed with and no
effectivity clause is embodied in the treaty, the instrument is deemed effective upon its
signature.
[16]
[emphasis supplied]

Petitioners arguments equate the signing of the treaty by the Philippine representative with
ratification. It should be underscored that the signing of the treaty and the ratification are two separate
and distinct steps in the treaty-making process. As earlier discussed, the signature is primarily intended
as a means of authenticating the instrument and as a symbol of the good faith of the parties. It is usually
performed by the states authorized representative in the diplomatic mission. Ratification, on the other
hand, is the formal act by which a state confirms and accepts the provisions of a treaty concluded by its
representative. It is generally held to be an executive act, undertaken by the head of the state or of the
government.
[17]
Thus, Executive Order No. 459 issued by President Fidel V. Ramos on November 25,
1997 provides the guidelines in the negotiation of international agreements and its ratification. It
mandates that after the treaty has been signed by the Philippine representative, the same shall be
transmitted to the Department of Foreign Affairs. The Department of Foreign Affairs shall then prepare
the ratification papers and forward the signed copy of the treaty to the President for ratification. After the
President has ratified the treaty, the Department of Foreign Affairs shall submit the same to the Senate
for concurrence. Upon receipt of the concurrence of the Senate, the Department of Foreign Affairs shall
comply with the provisions of the treaty to render it effective. Section 7 of Executive Order No. 459 reads:
Sec. 7. Domestic Requirements for the Entry into Force of a Treaty or an
Executive Agreement. The domestic requirements for the entry into force of a treaty
or an executive agreement, or any amendment thereto, shall be as follows:

A. Executive Agreements.

i. All executive agreements shall be transmitted to the
Department of Foreign Affairs after their signing for the
preparation of the ratification papers. The transmittal shall
include the highlights of the agreements and the benefits which
will accrue to the Philippines arising from them.

ii. The Department of Foreign Affairs, pursuant to the
endorsement by the concerned agency, shall transmit the
agreements to the President of the Philippines for his
ratification. The original signed instrument of ratification shall
then be returned to the Department of Foreign Affairs for
appropriate action.

B. Treaties.

i. All treaties, regardless of their designation, shall
comply with the requirements provided in sub-paragraph[s] 1 and
2, item A (Executive Agreements) of this Section. In addition,
the Department of Foreign Affairs shall submit the treaties to the
Senate of the Philippines for concurrence in the ratification by
the President. A certified true copy of the treaties, in such
numbers as may be required by the Senate, together with a
certified true copy of the ratification instrument, shall accompany
the submission of the treaties to the Senate.

ii. Upon receipt of the concurrence by the Senate, the
Department of Foreign Affairs shall comply with the provision of
the treaties in effecting their entry into force.

Petitioners submission that the Philippines is bound under treaty law and international law to ratify
the treaty which it has signed is without basis. The signature does not signify the final consent of the state
to the treaty. It is the ratification that binds the state to the provisions thereof. In fact, the Rome Statute
itself requires that the signature of the representatives of the states be subject to ratification, acceptance
or approval of the signatory states. Ratification is the act by which the provisions of a treaty are formally
confirmed and approved by a State. By ratifying a treaty signed in its behalf, a state expresses its
willingness to be bound by the provisions of such treaty. After the treaty is signed by the states
representative, the President, being accountable to the people, is burdened with the responsibility and the
duty to carefully study the contents of the treaty and ensure that they are not inimical to the interest of the
state and its people. Thus, the President has the discretion even after the signing of the treaty by the
Philippine representative whether or not to ratify the same. The Vienna Convention on the Law of Treaties
does not contemplate to defeat or even restrain this power of the head of states. If that were so, the
requirement of ratification of treaties would be pointless and futile. It has been held that a state has no
legal or even moral duty to ratify a treaty which has been signed by its plenipotentiaries.
[18]
There is no
legal obligation to ratify a treaty, but it goes without saying that the refusal must be based on substantial
grounds and not on superficial or whimsical reasons. Otherwise, the other state would be justified in
taking offense.
[19]

It should be emphasized that under our Constitution, the power to ratify is vested in the President,
subject to the concurrence of the Senate. The role of the Senate, however, is limited only to giving or
withholding its consent, or concurrence, to the ratification.
[20]
Hence, it is within the authority of the
President to refuse to submit a treaty to the Senate or, having secured its consent for its ratification,
refuse to ratify it.
[21]
Although the refusal of a state to ratify a treaty which has been signed in its behalf is
a serious step that should not be taken lightly,
[22]
such decision is within the competence of the President
alone, which cannot be encroached by this Court via a writ of mandamus. This Court has no jurisdiction
over actions seeking to enjoin the President in the performance of his official duties.
[23]
The Court,
therefore, cannot issue the writ of mandamus prayed for by the petitioners as it is beyond its jurisdiction to
compel the executive branch of the government to transmit the signed text of Rome Statute to the
Senate.
IN VIEW WHEREOF, the petition is DISMISSED.
SO ORDERED.





REYNATO S. PUNO
Associate Justice





WE CONCUR:





HILARIO G. DAVIDE, JR.
Chief Justice





ARTEMIO V. PANGANIBAN LEONARDO A. QUISUMBING
Associate Justice Associate Justice




(on official leave)
CONSUELO YNARES-SANTIAGO ANGELINA SANDOVAL-GUTIERREZ
Associate Justice Associate Justice




(on official leave)
ANTONIO T. CARPIO MA. ALICIA AUSTRIA-MARTINEZ
Associate Justice Associate Justice




(on official leave)
RENATO C. CORONA CONCHITA CARPIO MORALES
Associate Justice Associate Justice





ROMEO J. CALLEJO, SR. ADOLFO S. AZCUNA
Associate Justice Associate Justice








DANTE O. TINGA MINITA V. CHICO-NAZARIO
Associate Justice Associate Justice





CANCIO C. GARCIA
Associate Justice



CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in
the above Decision were reached in consultation before the case was assigned to the writer of the
opinion of the Court.




HILARIO G. DAVIDE, JR.
Chief Justice










*
On official leave.

[1]
Article 1, Rome Statute.
[2]
Article 5, Rome Statute.
[3]
Annex B of Petition, Rollo, p. 101.
[4]
Article 25, Rome Statute.
[5]
Article 18, Vienna Convention on the Law of Treaties reads:
Article 18
Obligation not to defeat the object and purpose of a treaty prior to its entry into force
A State is obliged to refrain from acts which would defeat the object and purpose of a treaty
when:
(a) it has signed the treaty or has exchanged instruments constituting the treaty subject to
ratification, acceptance or approval, until it shall have made its intention clear not to become a
party to the treaty; or
(b) it has expressed its consent to be bound by the treaty, pending the entry into force of the
treaty and provided that such entry into force is not unduly delayed.

[6]
Section 3, Rule 65, 1997 Rules of Civil Procedure.
[7]
Legaspi vs. Civil Service Commission, 150 SCRA 530 (1987).
[8]
Joya vs. Presidential Commission on Good Government, 225 SCRA 568 (1993).
[9]
224 SCRA 792 (1993).
[10]
Gonzales vs. Narvasa, 337 SCRA 733 (2000).
[11]
Del Mar vs. Philippine Amusement and Gaming Corporation, 346 SCRA 485 (2000).
[12]
Cortes, The Philippine Presidency: A Study of Executive Power (1966), p. 187.
[13]
Cruz, Philippine Political Law (1996 Ed.), p. 223.
[14]
Cortes, supra note 12, p. 189.
[15]
Bayan vs. Zamora, 342 SCRA 449 (2000).
[16]
Cruz, International Law (1998 Ed.), pp. 172-174.
[17]
Bayan vs. Zamora, supra note 15.
[18]
Salonga and Yap, Public International Law (5
th
Edition), p. 138.
[19]
Cruz, International Law, supra note 16, p.174.
[20]
Bayan vs. Zamora, supra note 15.
[21]
Cruz, International Law, supra note 16, p.174.
[22]
Salonga and Yap, supra note 18.
[23]
See Severino vs. Governor-General, 16 Phil. 366 (1910).
FIRST DIVISION
[G.R. No. 125865. March 26, 2001]
JEFFREY LIANG (HUEFENG), petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.
R E S O L U T I O N
YNARES-SANTIAGO, J .:
This resolves petitioners Motion for Reconsideration of our Decision dated January 28, 2000,
denying the petition for review.
The Motion is anchored on the following arguments:
1) THE DFAS DETERMINATION OF IMMUNITY IS A POLITICAL QUESTION TO BE MADE
BY THE EXECUTIVE BRANCH OF THE GOVERNMENT AND IS CONCLUSIVE UPON
THE COURTS.
2) THE IMMUNITY OF INTERNATIONAL ORGANIZATIONS IS ABSOLUTE.
3) THE IMMUNITY EXTENDS TO ALL STAFF OF THE ASIAN DEVELOPMENT BANK (ADB).
4) DUE PROCESS WAS FULLY AFFORDED THE COMPLAINANT TO REBUT THE DFA
PROTOCOL.
5) THE DECISION OF JANUARY 28, 2000 ERRONEOUSLY MADE A FINDING OF FACT ON
THE MERITS, NAMELY, THE SLANDERING OF A PERSON WHICH PREJUDGED
PETITIONERS CASE BEFORE THE METROPOLITAN TRIAL COURT (MTC)-
MANDALUYONG.
6) THE VIENNA CONVENTION ON DIPLOMATIC RELATIONS IS NOT APPLICABLE TO THIS
CASE.
This case has its origin in two criminal Informations
[1]
for grave oral defamation filed against
petitioner, a Chinese national who was employed as an Economist by the Asian Development Bank
(ADB), alleging that on separate occasions on January 28 and January 31, 1994, petitioner allegedly
uttered defamatory words to Joyce V. Cabal, a member of the clerical staff of ADB. On April 13, 1994, the
Metropolitan Trial Court of Mandaluyong City, acting pursuant to an advice from the Department of
Foreign Affairs that petitioner enjoyed immunity from legal processes, dismissed the criminal Informations
against him. On a petition for certiorari and mandamus filed by the People, the Regional Trial Court of
Pasig City, Branch 160, annulled and set aside the order of the Metropolitan Trial Court dismissing the
criminal cases.
[2]

Petitioner, thus, brought a petition for review with this Court. On January 28, 2000, we rendered the
assailed Decision denying the petition for review. We ruled, in essence, that the immunity granted to
officers and staff of the ADB is not absolute; it is limited to acts performed in an official
capacity. Furthermore, we held that the immunity cannot cover the commission of a crime such as
slander or oral defamation in the name of official duty.
On October 18, 2000, the oral arguments of the parties were heard. This Court also granted the
Motion for Intervention of the Department of Foreign Affairs. Thereafter, the parties were directed to
submit their respective memorandum.
For the most part, petitioners Motion for Reconsideration deals with the diplomatic immunity of the
ADB, its officials and staff, from legal and judicial processes in the Philippines, as well as the
constitutional and political bases thereof. It should be made clear that nowhere in the assailed Decision
is diplomatic immunity denied, even remotely. The issue in this case, rather, boils down to whether or not
the statements allegedly made by petitioner were uttered while in the performance of his official functions,
in order for this case to fall squarely under the provisions of Section 45 (a) of the Agreement Between
the Asian Development Bank and the Government of the Republic of the Philippines Regarding the
Headquarters of the Asian Development Bank, to wit:
Officers ands staff of the Bank, including for the purpose of this Article experts and consultants
performing missions for the Bank, shall enjoy the following privileges and immunities:
(a) Immunity from legal process with respect to acts performed by them in their official capacity except
when the Bank waives the immunity.
After a careful deliberation of the arguments raised in petitioners and intervenors Motions for
Reconsideration, we find no cogent reason to disturb our Decision of January 28, 2000. As we have
stated therein, the slander of a person, by any stretch, cannot be considered as falling within the purview
of the immunity granted to ADB officers and personnel. Petitioner argues that the Decision had the effect
of prejudging the criminal case for oral defamation against him. We wish to stress that it did not. What
we merely stated therein is that slander, in general, cannot be considered as an act performed in an
official capacity. The issue of whether or not petitioners utterances constituted oral defamation is still for
the trial court to determine.
WHEREFORE, in view of the foregoing, the Motions for Reconsideration filed by petitioner and
intervenor Department of Foreign Affairs are DENIED with FINALITY.
SO ORDERED.
Davide, Jr., C.J., (Chairman), join the concurring opinion of Mr. Justice Puno.
Kapunan, and Pardo, JJ., concur.
Puno, J., Pls. See concurring opinion.



[1]
Criminal Cases Nos. 53170 & 53171 of the Metropolitan Trial Court of Mandaluyong City, Branch 60,
presided by Hon. Ma. Luisa Quijano- Padilla.
[2]
SCA Case No. 743 of the Regional Trial Court of Pasig City, Branch 160, presided by Hon. Mariano M.
Umali.

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 Court 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. 90-183.
The Order dated June 20, 1991 denied the motion of petitioner to dismiss the complaint 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 Rome, Italy, and is
represented in the Philippines by the Papal Nuncio.
Private respondent, Starbright Sales Enterprises, Inc., is a domestic corporation 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 the Municipality of Paraaque, Metro Manila and
registered in the name of petitioner.
Said Lot 5-A is contiguous to Lots 5-B and 5-D which are covered by Transfer Certificates of Title Nos.
271108 and 265388 respectively and registered in the name 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 respondent, a dispute arose as to
who of the parties has the responsibility of evicting 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
Corporation (Tropicana).
I
On January 23, 1990, private respondent filed a complaint with the Regional Trial Court, Branch 61,
Makati, Metro Manila for annulment of the sale of the three parcels of land, and specific performance and
damages against petitioner, represented 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
sellers, and that the sellers clear the said lots of squatters who were then occupying the same; (3) Licup
paid the earnest money to Msgr. Cirilos; (4) in the same month, Licup assigned his rights over the
property to private respondent and informed the sellers of the said assignment; (5) thereafter, private
respondent demanded from Msgr. Cirilos that the sellers fulfill their undertaking and clear the property of
squatters; however, Msgr. Cirilos informed private respondent of the squatters' refusal to vacate the lots,
proposing instead either that private respondent undertake the eviction or that the earnest money be
returned to the latter; (6) private respondent counterproposed that if it would undertake the eviction 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 money 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 respondent
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 the 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 of 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 respondent 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 comply 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 profits of not less than P30,000.000.00.
Private respondent thus prayed for: (1) the annulment of the Deeds of Sale between petitioner and the
PRC on the one hand, and Tropicana on the other; (2) the reconveyance of the lots in question; (3)
specific performance of the agreement to 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 complaint petitioner for
lack of jurisdiction based on sovereign immunity from suit, 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, petitioner'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 30, 1991, petitioner filed a
"Motion for a Hearing for the Sole Purpose of Establishing Factual Allegation for claim of Immunity as a
Jurisdictional Defense." So as to facilitate the determination of its defense of sovereign immunity,
petitioner prayed that a hearing be conducted to allow it to establish certain facts upon which the said
defense is based. Private respondent opposed this motion as well 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 petitioner to file its answer (Rollo, p. 22).
Petitioner forthwith elevated the matter to us. In its petition, petitioner invokes 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 Department 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 Department of Foreign Affairs submitted their respective
memoranda.
II
A preliminary matter to be threshed out is the procedural issue of whether the petition for certiorari under
Rule 65 of the Revised Rules of Court can be availed of to question the order denying petitioner's motion
to dismiss. The general rule is that an order denying a motion to dismiss is not reviewable by the
appellate courts, the remedy of the movant being to file his answer and to proceed with 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 has no alternative but to dismiss the complaint (Philippine National Bank v.
Florendo, 206 SCRA 582 [1992]; Zagada v. Civil Service Commission, 216 SCRA 114 [1992]. 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 plead sovereign or diplomatic
immunity in a foreign court, it requests the Foreign Office of the state where it is sued to convey to the
court that said defendant is entitled to immunity.
In the United States, the procedure followed is the process of "suggestion," where 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 entitled 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 "suggestion" that the
defendant is entitled to immunity. In England, a similar procedure is followed, only the Foreign Office
issues a certification to that effect instead 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 international organization to first
secure an executive endorsement of its claim of sovereign or diplomatic immunity. But how the Philippine
Foreign Office conveys its endorsement to the courts varies. In International Catholic Migration
Commission v. Calleja, 190 SCRA 130 (1990), the Secretary of Foreign Affairs just sent a letter directly to
the Secretary of Labor and Employment, informing the latter that the respondent-employer could not be
sued because it enjoyed diplomatic immunity. InWorld 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 request the Solicitor General
to make, in behalf of the Commander of the United States Naval Base at Olongapo City, Zambales, a
"suggestion" to respondent Judge. The Solicitor General embodied the "suggestion" in a Manifestation
and Memorandum as amicus curiae.
In the case at bench, the Department of Foreign Affairs, through the Office of Legal Affairs moved with
this Court to be allowed to intervene on the side of petitioner. 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 local courts by the
respondents through their private counsels (Raquiza v. Bradford, 75 Phil. 50 [1945]; Miquiabas v.
Philippine-Ryukyus Command, 80 Phil. 262 [1948]; United States of America v. Guinto, 182 SCRA 644
[1990] and companion cases). 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 over petitioner, being a foreign
state enjoying sovereign immunity. On the other hand, private respondent insists that the doctrine of non-
suability is not anymore 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 its status as a sovereign state
is in order.
Before the annexation of the Papal States by Italy in 1870, the Pope was the monarch and he, as the
Holy See, was considered a subject of International Law. With the loss of the Papal States and the
limitation of the territory under the Holy See to an area of 108.7 acres, the position of the Holy See in
International Law 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 recognized the exclusive
dominion and sovereign jurisdiction of the Holy See over the 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
treaties according to International Law (Garcia, Questions and Problems In International Law, Public and
Private 81 [1948]).
The Lateran Treaty established the statehood of the Vatican City "for the purpose of assuring to the Holy
See absolute and visible independence and of guaranteeing 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 whether 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 Vatican City represents an entity organized not for political but for ecclesiastical 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 of the Roman Catholic Church, as the Holy See or Head of State, in
conformity with 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 sense an "international state"
(Fenwick, supra., 125; Kelsen, Principles of International Law 160 [1956]).
One authority wrote that the recognition of the Vatican City as a state has significant implication that it
is possible for any entity pursuing objects essentially different from those pursued by states to be invested
with international personality (Kunz, The Status of the Holy See in International Law, 46 The American
Journal of International Law 308 [1952]).
Inasmuch as the Pope prefers to conduct foreign relations and enter into transactions 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 foreign sovereign. The Holy
See, through its Ambassador, the Papal Nuncio, has had diplomatic 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 adopted the generally accepted
principles of International Law. Even without this affirmation, 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 society of nations (United States of America v. Guinto, 182 SCRA 644 [1990]).
There are two conflicting concepts of sovereign immunity, each widely held and firmly established.
According to the classical or absolute theory, a sovereign cannot, without its consent, be made a
respondent in the courts of another sovereign. 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, but not with
regard to private acts or acts jure gestionis
(United States of America v. Ruiz, 136 SCRA 487 [1987]; Coquia and Defensor-Santiago, Public
International Law 194 [1984]).
Some states passed legislation to serve as guidelines for the executive or judicial determination when an
act may be considered as jure gestionis. The United States passed the Foreign Sovereign Immunities Act
of 1976, which defines a commercial activity as "either a regular course of commercial conduct or a
particular commercial transaction or act." Furthermore, the law declared that the "commercial character of
the activity shall be determined by reference to the nature of the 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 State 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 problems involving the issue of
sovereign immunity, has created problems of its own. Legal treatises and the decisions in countries which
follow the restrictive theory 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 governmental functions. This is particularly true with
respect to the Communist states which took control of nationalized business activities and international
trading.
This Court has considered the following transactions by a foreign state with private parties as acts jure
imperii: (1) the lease by a foreign government of apartment 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 change of employment status of
base employees (Sanders v. Veridiano, 162 SCRA 88 [1988]).
On the other hand, this Court has considered the following transactions by a foreign 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 bakery, a store, and a coffee and pastry shop at the John Hay Air Station in
Baguio City, to cater to American servicemen and the general public (United States of America 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. Guinto, 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 impliedly 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 come out with our own guidelines, tentative they may
be.
Certainly, the mere entering into a contract by a foreign state with a private party cannot be the ultimate
test. Such an act can only be the start of the inquiry. 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 regularly 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 for 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, will 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 involves its sovereign or
governmental capacity that no such waiver may be implied.
In the case at bench, if petitioner has bought and sold lands in the ordinary course of a real estate
business, surely the said transaction can be categorized as 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
acquired said property for the site of its mission or the Apostolic Nunciature in the Philippines. 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 right of a foreign sovereign to acquire property, real or personal, in a
receiving state, necessary for the creation and maintenance of its diplomatic mission, is 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 in 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 action relating to private immovable property situated in the
territory of the receiving state which the envoy holds on behalf of the sending state for the purposes of the
mission. If this immunity is provided for a diplomatic envoy, with all 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 likewise 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 squatters 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 occupying 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 without going to trial in the light
of the pleadings, particularly the admission of private respondent. Besides, the privilege of sovereign
immunity in this case was sufficiently established by the Memorandum and Certification of the
Department of Foreign Affairs. As the department tasked with the conduct of the Philippines' foreign
relations (Administrative Code of 1987, Book IV, Title I, Sec. 3), the Department of Foreign Affairs has
formally intervened in this case and officially 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 entitled
to all the rights, privileges and immunities of a diplomatic mission or embassy 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 diplomatic immunity is a political question that is conclusive upon the courts (International
Catholic Migration Commission v. Calleja, 190 SCRA 130 [1990]). Where 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 executive arm of the government in conducting the country's foreign relations (World
Health Organization v. Aquino, 48 SCRA 242 [1972]). As in International Catholic Migration
Commission and in World Health Organization, we abide by the certification 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 unduly 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 grievances. Under both Public
International Law and Transnational Law, a person who 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. Of course, the Foreign Office shall first make a determination of the impact of its
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 Philippine government decides to espouse the claim, the latter
ceases to be a private 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 action or
international judicial proceedings on his behalf, a State is in reality asserting its own
rights its right to ensure, in the person of its subjects, respect 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 Case No. 90-183 against
petitioner is DISMISSED.
SO ORDERED.
Narvasa, C.J., Bidin, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan and
Mendoza, JJ., concur.
Padilla, J., took no part.
Feliciano, J., is on leave.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 153675 April 19, 2007
GOVERNMENT OF HONG KONG SPECIAL ADMINISTRATIVE REGION, represented by the
Philippine Department of Justice, Petitioner,
vs.
HON. FELIXBERTO T. OLALIA, JR. and JUAN ANTONIO MUOZ, Respondents.
D E C I S I O N
SANDOVAL-GUTIERREZ, J .:
For our resolution is the instant Petition for Certiorari under Rule 65 of the 1997 Rules of Civil Procedure,
as amended, seeking to nullify the two Orders of the Regional Trial Court (RTC), Branch 8, Manila
(presided by respondent Judge Felixberto T. Olalia, Jr.) issued in Civil Case No. 99-95773. These are: (1)
the Order dated December 20, 2001 allowing Juan Antonio Muoz, private respondent, to post bail; and
(2) the Order dated April 10, 2002 denying the motion to vacate the said Order of December 20, 2001
filed by the Government of Hong Kong Special Administrative Region, represented by the Philippine
Department of Justice (DOJ), petitioner. The petition alleges that both Orders were issued by respondent
judge with grave abuse of discretion amounting to lack or excess of jurisdiction as there is no provision in
the Constitution granting bail to a potential extraditee.
The facts are:
On January 30, 1995, the Republic of the Philippines and the then British Crown Colony of Hong Kong
signed an "Agreement for the Surrender of Accused and Convicted Persons." It took effect on June 20,
1997.
On July 1, 1997, Hong Kong reverted back to the Peoples Republic of China and became the Hong Kong
Special Administrative Region.
Private respondent Muoz was charged before the Hong Kong Court with three (3) counts of the offense
of "accepting an advantage as agent," in violation of Section 9 (1) (a) of the Prevention of Bribery
Ordinance, Cap. 201 of Hong Kong. He also faces seven (7) counts of the offense of conspiracy to
defraud, penalized by the common law of Hong Kong. On August 23, 1997 and October 25, 1999,
warrants of arrest were issued against him. If convicted, he faces a jail term of seven (7) to fourteen (14)
years for each charge.
On September 13, 1999, the DOJ received from the Hong Kong Department of Justice a request for the
provisional arrest of private respondent. The DOJ then forwarded the request to the National Bureau of
Investigation (NBI) which, in turn, filed with the RTC of Manila, Branch 19 an application for the
provisional arrest of private respondent.
On September 23, 1999, the RTC, Branch 19, Manila issued an Order of Arrest against private
respondent. That same day, the NBI agents arrested and detained him.
On October 14, 1999, private respondent filed with the Court of Appeals a petition for certiorari,
prohibition andmandamus with application for preliminary mandatory injunction and/or writ of habeas
corpus questioning the validity of the Order of Arrest.
On November 9, 1999, the Court of Appeals rendered its Decision declaring the Order of Arrest void.
On November 12, 1999, the DOJ filed with this Court a petition for review on certiorari, docketed as G.R.
No. 140520, praying that the Decision of the Court of Appeals be reversed.
On December 18, 2000, this Court rendered a Decision granting the petition of the DOJ and sustaining
the validity of the Order of Arrest against private respondent. The Decision became final and executory on
April 10, 2001.
Meanwhile, as early as November 22, 1999, petitioner Hong Kong Special Administrative Region filed
with the RTC of Manila a petition for the extradition of private respondent, docketed as Civil Case No. 99-
95733, raffled off to Branch 10, presided by Judge Ricardo Bernardo, Jr. For his part, private respondent
filed, in the same case,- a petition for bail which was opposed by petitioner.
After hearing, or on October 8, 2001, Judge Bernardo, Jr. issued an Order denying the petition for bail,
holding that there is no Philippine law granting bail in extradition cases and that private respondent is a
high "flight risk."
On October 22, 2001, Judge Bernardo, Jr. inhibited himself from further hearing Civil Case No. 99-95733.
It was then raffled off to Branch 8 presided by respondent judge.
On October 30, 2001, private respondent filed a motion for reconsideration of the Order denying his
application for bail. This was granted by respondent judge in an Order dated December 20, 2001 allowing
private respondent to post bail, thus:
In conclusion, this Court will not contribute to accuseds further erosion of civil liberties. The petition for
bail is granted subject to the following conditions:
1. Bail is set at Php750,000.00 in cash with the condition that accused hereby undertakes that he
will appear and answer the issues raised in these proceedings and will at all times hold himself
amenable to orders and processes of this Court, will further appear for judgment. If accused fails
in this undertaking, the cash bond will be forfeited in favor of the government;
2. Accused must surrender his valid passport to this Court;
3. The Department of Justice is given immediate notice and discretion of filing its own motion for
hold departure order before this Court even in extradition proceeding; and
4. Accused is required to report to the government prosecutors handling this case or if they so
desire to the nearest office, at any time and day of the week; and if they further desire, manifest
before this Court to require that all the assets of accused, real and personal, be filed with this
Court soonest, with the condition that if the accused flees from his undertaking, said assets be
forfeited in favor of the government and that the corresponding lien/annotation be noted therein
accordingly.
SO ORDERED.
On December 21, 2001, petitioner filed an urgent motion to vacate the above Order, but it was denied by
respondent judge in his Order dated April 10, 2002.
Hence, the instant petition. Petitioner alleged that the trial court committed grave abuse of discretion
amounting to lack or excess of jurisdiction in admitting private respondent to bail; that there is nothing in
the Constitution or statutory law providing that a potential extraditee has a right to bail, the right being
limited solely to criminal proceedings.
In his comment on the petition, private respondent maintained that the right to bail guaranteed under the
Bill of Rights extends to a prospective extraditee; and that extradition is a harsh process resulting in a
prolonged deprivation of ones liberty.
Section 13, Article III of the Constitution provides that the right to bail shall not be impaired, thus:
Sec. 13. All persons, except those charged with offenses punishable by reclusion perpetua when
evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on
recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege
of the writ of habeas corpus is suspended. Excessive bail shall not be required.
Jurisprudence on extradition is but in its infancy in this jurisdiction. Nonetheless, this is not the first time
that this Court has an occasion to resolve the question of whether a prospective extraditee may be
granted bail.
In Government of United States of America v. Hon. Guillermo G. Purganan, Presiding Judge, RTC of
Manila, Branch 42, and Mark B. Jimenez, a.k.a. Mario Batacan Crespo,
1
this Court, speaking through
then Associate Justice Artemio V. Panganiban, later Chief Justice, held that the constitutional provision
on bail does not apply to extradition proceedings. It is "available only in criminal proceedings," thus:
x x x. As suggested by the use of the word "conviction," the constitutional provision on bail quoted above,
as well as Section 4, Rule 114 of the Rules of Court, applies only when a person has been arrested and
detained for violation of Philippine criminal laws. It does not apply to extradition proceedings because
extradition courts do not render judgments of conviction or acquittal.
Moreover, the constitutional right to bail "flows from the presumption of innocence in favor of every
accused who should not be subjected to the loss of freedom as thereafter he would be entitled to
acquittal, unless his guilt be proved beyond reasonable doubt" (De la Camara v. Enage, 41 SCRA 1, 6,
September 17, 1971, per Fernando, J., later CJ). It follows that the constitutional provision on bail will not
apply to a case like extradition, where the presumption of innocence is not at issue.
The provision in the Constitution stating that the "right to bail shall not be impaired even when the
privilege of the writ of habeas corpus is suspended" does not detract from the rule that the constitutional
right to bail is available only in criminal proceedings. It must be noted that the suspension of the privilege
of the writ of habeas corpusfinds application "only to persons judicially charged for rebellion or offenses
inherent in or directly connected with invasion" (Sec. 18, Art. VIII, Constitution). Hence, the second
sentence in the constitutional provision on bail merely emphasizes the right to bail in criminal proceedings
for the aforementioned offenses. It cannot be taken to mean that the right is available even in extradition
proceedings that are not criminal in nature.
At first glance, the above ruling applies squarely to private respondents case. However, this Court cannot
ignore the following trends in international law: (1) the growing importance of the individual person in
public international law who, in the 20th century, has gradually attained global recognition; (2) the higher
value now being given to human rights in the international sphere; (3) the corresponding duty of countries
to observe these universal human rights in fulfilling their treaty obligations; and (4) the duty of this Court
to balance the rights of the individual under our fundamental law, on one hand, and the law on extradition,
on the other.
The modern trend in public international law is the primacy placed on the worth of the individual
person and the sanctity of human rights. Slowly, the recognition that the individual person may
properly be a subject of international law is now taking root. The vulnerable doctrine that the subjects of
international law are limited only to states was dramatically eroded towards the second half of the past
century. For one, the Nuremberg and Tokyo trials after World War II resulted in the unprecedented
spectacle of individual defendants for acts characterized as violations of the laws of war, crimes against
peace, and crimes against humanity. Recently, under the Nuremberg principle, Serbian leaders have
been persecuted for war crimes and crimes against humanity committed in the former Yugoslavia. These
significant events show that the individual person is now a valid subject of international law.
On a more positive note, also after World War II, both international organizations and states gave
recognition and importance to human rights. Thus, on December 10, 1948, the United Nations General
Assembly adopted the Universal Declaration of Human Rights in which the right to life, liberty and all the
other fundamental rights of every person were proclaimed. While not a treaty, the principles contained
in the said Declaration are now recognized as customarily binding upon the members of the
international community. Thus, in Mejoff v. Director of Prisons,
2
this Court, in granting bail to a
prospective deportee, held that under the Constitution,
3
the principles set forth in that Declaration are
part of the law of the land. In 1966, the UN General Assembly also adopted the International Covenant on
Civil and Political Rights which the Philippines signed and ratified. Fundamental among the rights
enshrined therein are the rights of every person to life, liberty, and due process.
The Philippines, along with the other members of the family of nations, committed to uphold the
fundamental human rights as well as value the worth and dignity of every person. This commitment is
enshrined in Section II, Article II of our Constitution which provides: "The State values the dignity of every
human person and guarantees full respect for human rights." The Philippines, therefore, has the
responsibility of protecting and promoting the right of every person to liberty and due process, ensuring
that those detained or arrested can participate in the proceedings before a court, to enable it to decide
without delay on the legality of the detention and order their release if justified. In other words, the
Philippine authorities are under obligation to make available to every person under detention such
remedies which safeguard their fundamental right to liberty. These remedies include the right to be
admitted to bail. While this Court in Purganan limited the exercise of the right to bail to criminal
proceedings, however, in light of the various international treaties giving recognition and protection to
human rights, particularly the right to life and liberty, a reexamination of this Courts ruling in Purganan is
in order.
First, we note that the exercise of the States power to deprive an individual of his liberty is not
necessarily limited to criminal proceedings. Respondents in administrative proceedings, such as
deportation and quarantine,
4
have likewise been detained.
Second, to limit bail to criminal proceedings would be to close our eyes to our jurisprudential
history. Philippine jurisprudence has not limited the exercise of the right to bail to criminal
proceedings only. This Court has admitted to bail persons who are not involved in criminal
proceedings. In fact, bail has been allowed in this jurisdiction to persons in detention during the
pendency of administrative proceedings, taking into cognizance the obligation of the Philippines
under international conventions to uphold human rights.
The 1909 case of US v. Go-Sioco
5
is illustrative. In this case, a Chinese facing deportation for failure to
secure the necessary certificate of registration was granted bail pending his appeal. After noting that the
prospective deportee had committed no crime, the Court opined that "To refuse him bail is to treat him as
a person who has committed the most serious crime known to law;" and that while deportation is not a
criminal proceeding, some of the machinery used "is the machinery of criminal law." Thus, the provisions
relating to bail was applied to deportation proceedings.
In Mejoff v. Director of Prisons
6
and Chirskoff v. Commission of Immigration,
7
this Court ruled that foreign
nationals against whom no formal criminal charges have been filed may be released on bail pending the
finality of an order of deportation. As previously stated, the Court in Mejoff relied upon the Universal
declaration of Human Rights in sustaining the detainees right to bail.
If bail can be granted in deportation cases, we see no justification why it should not also be allowed in
extradition cases. Likewise, considering that the Universal Declaration of Human Rights applies to
deportation cases, there is no reason why it cannot be invoked in extradition cases. After all, both are
administrative proceedings where the innocence or guilt of the person detained is not in issue.
Clearly, the right of a prospective extraditee to apply for bail in this jurisdiction must be viewed in the light
of the various treaty obligations of the Philippines concerning respect for the promotion and protection of
human rights. Under these treaties, the presumption lies in favor of human liberty. Thus, the Philippines
should see to it that the right to liberty of every individual is not impaired.
Section 2(a) of Presidential Decree (P.D.) No. 1069 (The Philippine Extradition Law) defines "extradition"
as "the removal of an accused from the Philippines with the object of placing him at the disposal of foreign
authorities to enable the requesting state or government to hold him in connection with any criminal
investigation directed against him or the execution of a penalty imposed on him under the penal or
criminal law of the requesting state or government."
Extradition has thus been characterized as the right of a foreign power, created by treaty, to demand the
surrender of one accused or convicted of a crime within its territorial jurisdiction, and the correlative duty
of the other state to surrender him to the demanding state.
8
It is not a criminal proceeding.
9
Even if the
potential extraditee is a criminal, an extradition proceeding is not by its nature criminal, for it is not
punishment for a crime, even though such punishment may follow extradition.
10
It is sui generis, tracing its
existence wholly to treaty obligations between different nations.
11
It is not a trial to determine the guilt
or innocence of the potential extraditee.
12
Nor is it a full-blown civil action, but one that is merely
administrative in character.
13
Its object is to prevent the escape of a person accused or convicted of a
crime and to secure his return to the state from which he fled, for the purpose of trial or punishment.
14

But while extradition is not a criminal proceeding, it is characterized by the following: (a) it entails a
deprivation of liberty on the part of the potential extraditee and (b) the means employed to attain the
purpose of extradition is also "the machinery of criminal law." This is shown by Section 6 of P.D. No.
1069 (The Philippine Extradition Law) which mandates the "immediate arrest and temporary detention
of the accused" if such "will best serve the interest of justice." We further note that Section 20 allows the
requesting state "in case of urgency" to ask for the "provisional arrest of the accused, pending receipt
of the request for extradition;" and that release from provisional arrest "shall not prejudice re-arrest and
extradition of the accused if a request for extradition is received subsequently."
Obviously, an extradition proceeding, while ostensibly administrative, bears all earmarks of a criminal
process. A potential extraditee may be subjected to arrest, to a prolonged restraint of liberty, and
forced to transfer to the demanding state following the proceedings. "Temporary detention" may be
a necessary step in the process of extradition, but the length of time of the detention should be
reasonable.
Records show that private respondent was arrested on September 23, 1999, and remained incarcerated
until December 20, 2001, when the trial court ordered his admission to bail. In other words, he had been
detained for over two (2) years without having been convicted of any crime. By any standard, such
an extended period of detention is a serious deprivation of his fundamental right to liberty. In fact, it was
this prolonged deprivation of liberty which prompted the extradition court to grant him bail.
While our extradition law does not provide for the grant of bail to an extraditee, however, there is no
provision prohibiting him or her from filing a motion for bail, a right to due process under the Constitution.
The applicable standard of due process, however, should not be the same as that in criminal
proceedings. In the latter, the standard of due process is premised on the presumption of innocence of
the accused. As Purganancorrectly points out, it is from this major premise that the ancillary presumption
in favor of admitting to bail arises. Bearing in mind the purpose of extradition proceedings, the premise
behind the issuance of the arrest warrant and the "temporary detention" is the possibility of flight of the
potential extraditee. This is based on the assumption that such extraditee is a fugitive from
justice.
15
Given the foregoing, the prospective extraditee thus bears the onus probandi of showing that he
or she is not a flight risk and should be granted bail.
The time-honored principle of pacta sunt servanda demands that the Philippines honor its obligations
under the Extradition Treaty it entered into with the Hong Kong Special Administrative Region. Failure to
comply with these obligations is a setback in our foreign relations and defeats the purpose of extradition.
However, it does not necessarily mean that in keeping with its treaty obligations, the Philippines should
diminish a potential extraditees rights to life, liberty, and due process. More so, where these rights are
guaranteed, not only by our Constitution, but also by international conventions, to which the Philippines is
a party. We should not, therefore, deprive an extraditee of his right to apply for bail, provided that a
certain standard for the grant is satisfactorily met.
An extradition proceeding being sui generis, the standard of proof required in granting or denying bail can
neither be the proof beyond reasonable doubt in criminal cases nor the standard of proof of
preponderance of evidence in civil cases. While administrative in character, the standard of substantial
evidence used in administrative cases cannot likewise apply given the object of extradition law which is to
prevent the prospective extraditee from fleeing our jurisdiction. In his Separate Opinion in Purganan, then
Associate Justice, now Chief Justice Reynato S. Puno, proposed that a new standard which he termed
"clear and convincing evidence" should be used in granting bail in extradition cases. According to
him, this standard should be lower than proof beyond reasonable doubt but higher than preponderance of
evidence. The potential extraditee must prove by "clear and convincing evidence" that he is not a flight
risk and will abide with all the orders and processes of the extradition court.
In this case, there is no showing that private respondent presented evidence to show that he is not
a flight risk. Consequently, this case should be remanded to the trial court to determine whether private
respondent may be granted bail on the basis of "clear and convincing evidence."
WHEREFORE, we DISMISS the petition. This case is REMANDED to the trial court to determine whether
private respondent is entitled to bail on the basis of "clear and convincing evidence." If not, the trial court
should order the cancellation of his bail bond and his immediate detention; and thereafter, conduct the
extradition proceedings with dispatch.
SO ORDERED.
ANGELINA SANDOVAL-GUTIERREZ
Associate Justice
WE CONCUR:
REYNATO S. PUNO
Chief Justice


Republic of the Philippines
Supreme Court
Manila

EN BANC

ISABELITA C. VINUYA, VICTORIA G.R. No. 162230
C. DELA PEA, HERMINIHILDA
MANIMBO, LEONOR H. SUMAWANG,
CANDELARIA L. SOLIMAN, MARIA
L. QUILANTANG, MARIA L. MAGISA,
NATALIA M. ALONZO, LOURDES M.
NAVARO, FRANCISCA M. ATENCIO,
ERLINDA MANALASTAS, TARCILA
M. SAMPANG, ESTER M. PALACIO,
MAXIMA R. DELA CRUZ, BELEN A.
SAGUM, FELICIDAD TURLA,
FLORENCIA M. DELA PEA, Present:
EUGENIA M. LALU, JULIANA G.
MAGAT, CECILIA SANGUYO, ANA PUNO, C. J.,
ALONZO, RUFINA P. MALLARI, CARPIO,
ROSARIO M. ALARCON, RUFINA C. CORONA,
GULAPA, ZOILA B. MANALUS, CARPIO MORALES,
CORAZON C. CALMA, MARTA A. VELASCO, JR.,
GULAPA, TEODORA M. HERNANDEZ, NACHURA,
FERMIN B. DELA PEA, MARIA DELA LEONARDO-DE CASTRO,
PAZ B. CULALA, ESPERANZA BRION,
MANAPOL, JUANITA M. BRIONES, PERALTA,
VERGINIA M. GUEVARRA, MAXIMA BERSAMIN,
ANGULO, EMILIA SANGIL, TEOFILA DEL CASTILLO,
R. PUNZALAN, JANUARIA G. GARCIA, ABAD,
PERLA B. BALINGIT, BELEN A. VILLARAMA, JR.,
CULALA, PILAR Q. GALANG, PEREZ, and
ROSARIO C. BUCO, GAUDENCIA C. MENDOZA, JJ.
DELA PEA, RUFINA Q. CATACUTAN,
FRANCIA A. BUCO, PASTORA C.
GUEVARRA, VICTORIA M. DELA
CRUZ, PETRONILA O. DELA CRUZ,
ZENAIDA P. DELA CRUZ, CORAZON
M. SUBA, EMERINCIANA A. VINUYA,
LYDIA A. SANCHEZ, ROSALINA M.
BUCO, PATRICIA A. BERNARDO,
LUCILA H. PAYAWAL, MAGDALENA
LIWAG, ESTER C. BALINGIT, JOVITA
A. DAVID, EMILIA C. MANGILIT,
VERGINIA M. BANGIT, GUILLERMA
S. BALINGIT, TERECITA PANGILINAN,
MAMERTA C. PUNO, CRISENCIANA
C. GULAPA, SEFERINA S. TURLA, Promulgated:
MAXIMA B. TURLA, LEONICIA G. April 28, 2010
GUEVARRA, ROSALINA M. CULALA,
CATALINA Y. MANIO, MAMERTA T.
SAGUM, CARIDAD L. TURLA, et al.
In their capacity and as members of the
Malaya Lolas Organization,
Petitioners,

- versus -

THE HONORABLE EXECUTIVE
SECRETARY ALBERTO G.
ROMULO, THE HONORABLE
SECRETARY OF FOREIGN
AFFAIRS DELIA DOMINGO-
ALBERT, THE HONORABLE
SECRETARY OF JUSTICE
MERCEDITAS N. GUTIERREZ,
and THE HONORABLE SOLICITOR
GENERAL ALFREDO L. BENIPAYO,
Respondents.
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

D E C I S I O N

DEL CASTILLO, J .:

The Treaty of Peace with Japan, insofar as it barred future claims such as those asserted by
plaintiffs in these actions, exchanged full compensation of plaintiffs for a future peace. History has
vindicated the wisdom of that bargain. And while full compensation for plaintiffs' hardships, in the
purely economic sense, has been denied these former prisoners and countless other survivors of
the war, the immeasurable bounty of life for themselves and their posterity in a free society and in
a more peaceful world services the debt.
[1]



There is a broad range of vitally important areas that must be regularly decided by the Executive Department
without either challenge or interference by the Judiciary. One such area involves the delicate arena of foreign
relations. It would be strange indeed if the courts and the executive spoke with different voices in the realm of foreign
policy. Precisely because of the nature of the questions presented, and the lapse of more than 60 years since the
conduct complained of, we make no attempt to lay down general guidelines covering other situations not involved
here, and confine the opinion only to the very questions necessary to reach a decision on this matter.

Factual Antecedents

This is an original Petition for Certiorari under Rule 65 of the Rules of Court with an application for the
issuance of a writ of preliminary mandatory injunction against the Office of the Executive Secretary, the Secretary of
the Department of Foreign Affairs (DFA), the Secretary of the Department of Justice (DOJ), and the Office of the
Solicitor General (OSG).

Petitioners are all members of the MALAYA LOLAS, a non-stock, non-profit organization
registered with the Securities and Exchange Commission, established for the purpose of providing aid to
the victims of rape by Japanese military forces in the Philippines during the Second World War.

Petitioners narrate that during the Second World War, the Japanese army attacked villages and
systematically raped the women as part of the destruction of the village. Their communities were bombed, houses
were looted and burned, and civilians were publicly tortured, mutilated, and slaughtered. Japanese soldiers forcibly
seized the women and held them in houses or cells, where they were repeatedly raped, beaten, and abused by
Japanese soldiers. As a result of the actions of their Japanese tormentors, the petitioners have spent their lives in
misery, having endured physical injuries, pain and disability, and mental and emotional suffering.
[2]

Petitioners claim that since 1998, they have approached the Executive Department through the DOJ, DFA,
and OSG, requesting assistance in filing a claim against the Japanese officials and military officers who ordered the
establishment of the comfort women stations in the Philippines. However, officials of the Executive Department
declined to assist the petitioners, and took the position that the individual claims of the comfort women for
compensation had already been fully satisfied by Japans compliance with the Peace Treaty between
the Philippines and Japan.

Issues

Hence, this petition where petitioners pray for this court to (a) declare that respondents committed grave
abuse of discretion amounting to lack or excess of discretion in refusing to espouse their claims for the crimes
against humanity and war crimes committed against them; and (b) compel the respondents to espouse their claims
for official apology and other forms of reparations against Japan before the International Court of Justice (ICJ) and
other international tribunals.

Petitioners arguments

Petitioners argue that the general waiver of claims made by the Philippine government in the Treaty of
Peace with Japan is void. They claim that the comfort women system established by Japan, and the brutal rape
and enslavement of petitioners constituted a crime against humanity,
[3]
sexual slavery,
[4]
and torture.
[5]
They allege
that the prohibition against these international crimes is jus cogens norms from which no derogation is possible; as
such, in waiving the claims of Filipina comfort women and failing to espouse their complaints against Japan, the
Philippine government is in breach of its legal obligation not to afford impunity for crimes against humanity. Finally,
petitioners assert that the Philippine governments acceptance of the apologies made by Japan as well as funds
from the Asian Womens Fund (AWF) were contrary to international law.

Respondents Arguments

Respondents maintain that all claims of the Philippines and its nationals relative to the war were dealt with in
the San Francisco Peace Treaty of 1951 and the bilateral Reparations Agreement of 1956.
[6]


Article 14 of the Treaty of Peace
[7]
provides:

Article 14. Claims and Property

a) It is recognized that Japan should pay reparations to the Allied Powers for the
damage and suffering caused by it during the war. Nevertheless it is also recognized
that the resources of Japan are not presently sufficient, if it is to maintain a viable
economy, to make complete reparation for all such damage and suffering and at the
present time meet its other obligations.

b) Except as otherwise provided in the present Treaty, the Allied Powers waive all
reparations claims of the Allied Powers, other claims of the Allied Powers and their
nationals arising out of any actions taken by Japan and its nationals in the course of
the prosecution of the war, and claims of the Allied Powers for direct military costs of
occupation.


In addition, respondents argue that the apologies made by Japan
[8]
have been satisfactory, and
that Japan had addressed the individual claims of the women through the atonement money paid by the Asian
Womens Fund.

Historical Background

The comfort women system was the tragic legacy of the Rape of Nanking. In December 1937, Japanese
military forces captured the city of Nanking in China and began a barbaric campaign of terror known as the Rape
of Nanking, which included the rapes and murders of an estimated 20,000 to 80,000 Chinese women, including
young girls, pregnant mothers, and elderly women.
[9]


In reaction to international outcry over the incident, the Japanese government sought ways to end
international condemnation
[10]
by establishing the comfort women system. Under this system, the military could
simultaneously appease soldiers' sexual appetites and contain soldiers' activities within a regulated
environment.
[11]
Comfort stations would also prevent the spread of venereal disease among soldiers and discourage
soldiers from raping inhabitants of occupied territories.
[12]


Daily life as a comfort woman was unmitigated misery.
[13]
The military forced victims into barracks-style
stations divided into tiny cubicles

where they were forced to live, sleep, and have sex with as many 30 soldiers per
day.
[14]
The 30 minutes allotted for sexual relations with each soldier were 30-minute increments of unimaginable
horror for the women.
[15]
Disease was rampant.
[16]
Military doctors regularly examined the women, but these checks
were carried out to prevent the spread of venereal diseases; little notice was taken of the frequent cigarette burns,
bruises, bayonet stabs and even broken bones inflicted on the women by soldiers.

Fewer than 30% of the women survived the war.
[17]
Their agony continued in having to suffer with the
residual physical, psychological, and emotional scars from their former lives. Some returned home and were
ostracized by their families. Some committed suicide. Others, out of shame, never returned home.
[18]