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,

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

Respondents.
x--------------------------------------------x
THE CITY OF ILIGAN, duly represented by
CITY MAYOR LAWRENCE LLUCH CRUZ,
Petitioner,
- versus
THE GOVERNMENT OF THE REPUBLIC OF
THE PHILIPPINES PEACE PANEL ON
ANCESTRAL 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 ViceGovernor and Presiding Officer of the
Sangguniang Panlalawigan, HON. CECILIA
JALOSJOS CARREON, Congresswoman,
1st Congressional District, HON. CESAR G.
JALOSJOS, Congressman, 3rdCongressional
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,

G.R. No. 183893

G.R. No. 183951

resident of the Province of Sultan Kudarat,

Petitioner-in-Intervention.
x-------------------------------------------x

- 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,
- 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

G.R. No. 183962

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
PEACE & DEVELOPMENT (MMMPD),
Respondent-in-Intervention.
x--------------------------------------------x
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
DECISION
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 GRPMILF Tripoli Agreement on Peace of 2001 in Kuala Lumpur,Malaysia.

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.

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]

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.

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, Rehabilitation Aspect, and Ancestral DomainAspect. With

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 Zamboangabe 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]

(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

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 MOAAD or, if the same had already been signed, from implementing the same, and that the MOAAD be declared unconstitutional. Petitioners herein additionally implead Executive Secretary
Eduardo Ermita as respondent.

(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;

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.

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
OF1997), particularly Section 3(g) & Chapter VII (DELINEATION, RECOGNITION OF ANCESTRAL
DOMAINS)[;]

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.

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

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.

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

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

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.

1. Whether the petitions have become moot and academic

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 commentsin-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 territory under compact) and dar-ulsulh (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-Islamand darul-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-ulmuahada 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 peoplesof 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 their prior 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 AncestralLands 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.

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
xxxx
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 aremere 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)

IV. PROCEDURAL ISSUES

The Solicitor General cites[63] the following provisions of the MOA-AD:
A. RIPENESS
TERRITORY
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]

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

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

GOVERNANCE

xxxx
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.
xxxx
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 controversy ripe 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) andCity of
Zamboanga (G.R. No. 183752) and petitioners-in-intervention Province of Sultan
Kudarat, City of Isabela and Municipality of Linamon have locus standi in view of the
direct and substantial injury that they, as 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 3rd 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
onlocus 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]

bench, the bar, the public and, in this case, the government and its negotiating
entity.

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]

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 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 need to 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-goingand 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

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 Suplico found 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 theAncestral Domain Aspect of said Tripoli Agreement is the third such component to be
undertaken following the implementation of the Security Aspect in August 2001 and
theHumanitarian, 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

10

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 decisionmaking 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, becomes fait
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

11

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 concern found in the
Bill of Rights. The right to information guarantees the right of the people to demand
information, while Section 28 recognizes the duty of 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]

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 becorollary 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.
xxxx

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?

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.

12

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
craftedruns 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 MOAAD, the ICCs/IPs have, under the IPRA, the right to participate fully at all levels of decisionmaking 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 clearcut 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

13

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 uponhow

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.

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 lawconcept
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 MOAAD 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
responsibility with 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)

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

14

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 of FSM 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 present 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, agovernment, 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;

15

(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 MOAAD 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 associativearrangement 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 a preparation for independence, is certainly not
conducive to nationalunity.

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:
xxxx

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]

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;

16

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;

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.
xxxx
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

5) Survey plans and sketch maps;

6) Anthropological data;

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.

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

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 inAgustin v.
Edu[159] applied the aforesaid constitutional provision to the 1968 Vienna Convention on Road
Signs and Signals.

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

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 selfdetermination, freely determine their political status and freely pursue their economic, social,
and cultural development.

17

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:

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:

(ii) Scope of the Right to Self-determination

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 State which
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)

126. The recognized sources of international law establish that the right to selfdetermination of a people is normally fulfilled through internal selfdetermination a peoples pursuit of its political, economic, social and cultural
development within the framework of an existing state. A right to external selfdetermination (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 selfdetermination 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 Islandsshould 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

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.

18

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) throughGeneral
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 selfdetermination, encompassing the right to autonomy or self-government, to wit:

(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

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 selfdetermination 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;

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.

19

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

20

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.
InSanlakas 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 Liberia and 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,

21

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
theTripoli 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

22

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, butwhen. 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 deadline for 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
government through 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 MOAAD 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 noncontracting 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

23

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.

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).

xxxx
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

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.

24

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.
xxxx
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 Maliwould 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 of guaranteeing amendmentsto

25

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.

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 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.

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.

SUMMARY

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.

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.

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.

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.

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.

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 GRPMILF 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

Three, Republic Act No. 8371 or the Indigenous Peoples Rights Act of 1997 provides for clearcut 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 MOAAD, 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

26

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.

REYNATO S. PUNO
Chief Justice

LEONARDO A. QUISUMBING
Associate Justice

CONSUELO YNARES- SANTIAGO

Associate Justice

ANTONIO T. CARPIO
Associate Justice

MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice

RENATO C. CORONA
Associate Justice

ADOLFO S. AZCUNA
Associate Justice

DANTE O. TINGA
Associate Justice

MINITA V. CHICO-NAZARIO
Associate Justice

PRESBITERO J. VELASCO, JR.

Associate Justice

ANTONIO EDUARDO B. NACHURA

Associate Justice

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:

RUBEN T. REYES
Associate Justice

TERESITA J. LEONARDO-DE CASTRO

Associate Justice

27

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

28

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 160261
November 10, 2003
ERNESTO B. FRANCISCO, JR., petitioner,
NAGMAMALASAKIT NA MGA MANANANGGOL NG MGA MANGGAGAWANG PILIPINO,
INC., ITS OFFICERS AND MEMBERS, petitioner-in-intervention,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-inintervention,
vs.
THE HOUSE OF REPRESENTATIVES, REPRESENTED BY SPEAKER JOSE G. DE VENECIA,
THE SENATE, REPRESENTED BY SENATE PRESIDENT FRANKLIN M. DRILON,
REPRESENTATIVE GILBERTO C. TEODORO, JR. AND REPRESENTATIVE FELIX WILLIAM
B. FUENTEBELLA, respondents.
JAIME N. SORIANO, respondent-in-Intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.
x---------------------------------------------------------x
G.R. No. 160262 November 10, 2003
SEDFREY M. CANDELARIA, CARLOS P. MEDINA, JR. AND HENEDINA RAZONABAD, petitioners,
ATTYS. ROMULO B. MACALINTAL AND PETE QUIRINO QUADRA, petitioners-inintervention,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-inintervention,
vs.
THE HOUSE OF REPRESENTATIVES, THROUGH THE SPEAKER OR ACTING SPEAKER
OR PRESIDING OFFICER, SPEAKER JOSE G. DE VENECIA, REPRESENTATIVE GILBERTO
G. TEODORO, JR., REPRESENTA-TIVE FELIX WILLIAM B. FUENTEBELLA, THE SENATE
OF THE PHILIPPINES, THROUGH ITS PRESIDENT, SENATE PRESIDENT FRANKLIN M.
DRILON, respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.
x---------------------------------------------------------x
G.R. No. 160263 November 10, 2003
ARTURO M. DE CASTRO AND SOLEDAD M. CAGAMPANG, petitioners,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioners-inintervention,
vs.
FRANKLIN M. DRILON, IN HIS CAPACITY AS SENATE PRESIDENT, AND JOSE G. DE
VENECIA, JR., IN HIS CAPACITY AS SPEAKER OF THE HOUSE OF
REPRESENTATIVES, respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.
x---------------------------------------------------------x
G.R. No. 160277 November 10, 2003
FRANCISCO I. CHAVEZ, petitioner,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-

intervention,
vs.
JOSE G. DE VENECIA, IN HIS CAPACITY AS SPEAKER OF THE HOUSE OF
REPRESENTATIVES, FRANKLIN M. DRILON, IN HIS CAPACITY AS PRESIDENT OF THE
SENATE OF THE REPUBLIC OF THE PHILIPPINES, GILBERT TEODORO, JR., FELIX
WILLIAM FUENTEBELLA, JULIO LEDESMA IV, HENRY LANOT, KIM BERNARDO-LOKIN,
MARCELINO LIBANAN, EMMYLOU TALIO-SANTOS, DOUGLAS CAGAS, SHERWIN
GATCHALIAN, LUIS BERSAMIN, JR., NERISSA SOON-RUIZ, ERNESTO NIEVA, EDGAR
ERICE, ISMAEL MATHAY, SAMUEL DANGWA, ALFREDO MARAON, JR., CECILIA
CARREON-JALOSJOS, AGAPITO AQUINO, FAUSTO SEACHON, JR., GEORGILU YUMULHERMIDA, JOSE CARLOS LACSON, MANUEL ORTEGA, ULIRAN JUAQUIN, SORAYA
JAAFAR, WILHELMINO SY-ALVARADO, CLAUDE BAUTISTA, DEL DE GUZMAN, ZENAIDA
CRUZ-DUCUT, AUGUSTO BACULIO, FAUSTINO DY III, AUGUSTO SYJUCO, ROZZANO
RUFINO BIAZON, LEOVIGILDO BANAAG, ERIC SINGSON, JACINTO PARAS, JOSE SOLIS,
RENATO MATUBO, HERMINO TEVES, AMADO ESPINO, JR., EMILIO MACIAS, ARTHUR
PINGOY, JR., FRANCIS NEPOMUCENO, CONRADO ESTRELLA III, ELIAS BULUT, JR.,
JURDIN ROMUALDO, JUAN PABLO BONDOC, GENEROSO TULAGAN, PERPETUO
YLAGAN, MICHAEL DUAVIT, JOSEPH DURANO, JESLI LAPUS, CARLOS COJUANGCO,
GIORGIDI AGGABAO, FRANCIS ESCUDERRO, RENE VELARDE, CELSO LOBREGAT,
ALIPIO BADELLES, DIDAGEN DILANGALEN, ABRAHAM MITRA, JOSEPH SANTIAGO,
DARLENE ANTONIO-CUSTODIO, ALETA SUAREZ, RODOLF PLAZA, JV BAUTISTA,
GREGORIO IPONG, GILBERT REMULLA, ROLEX SUPLICO, CELIA LAYUS, JUAN MIGUEL
ZUBIRI, BENASING MACARAMBON, JR., JOSEFINA JOSON, MARK COJUANGCO,
MAURICIO DOMOGAN, RONALDO ZAMORA, ANGELO MONTILLA, ROSELLER
BARINAGA, JESNAR FALCON, REYLINA NICOLAS, RODOLFO ALBANO, JOAQUIN
CHIPECO, JR., AND RUY ELIAS LOPEZ, respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.
x---------------------------------------------------------x
G.R. No. 160292 November 10, 2003
HERMINIO HARRY L. ROQUE, JR., JOEL RUIZ BUTUYAN, MA. CECILIA PAPA,
NAPOLEON C. REYES, ANTONIO H. ABAD, JR., ALFREDO C. LIGON, JOAN P. SERRANO
AND GARY S. MALLARI, petitioners,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-inintervention,
vs.
HON. SPEAKER JOSE G. DE VENECIA, JR. AND ROBERTO P. NAZARENO, IN HIS
CAPACITY AS SECRETARY GENERAL OF THE HOUSE OF REPRESENTATIVES, AND THE
HOUSE OF REPRESENTATIVES,respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.
x---------------------------------------------------------x
G.R. No. 160295 November 10, 2003
SALACNIB F. BATERINA AND DEPUTY SPEAKER RAUL M. GONZALES, petitioners,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-inintervention,
vs.

29

THE HOUSE OF REPRESEN-TATIVES, THROUGH THE SPEAKER OR ACTING SPEAKER

OR PRESIDING OFFICER, SPEAKER JOSE G. DE VENECIA, REPRESENTATIVE GILBERTO
G. TEODORO, JR., REPRESENTATIVE FELIX WILLIAM B. FUENTEBELLA, THE SENATE
OF THE PHILIPPINES, THROUGH ITS PRESIDENT, SENATE PRESIDENT FRANKLIN M.
DRILON, respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.
x---------------------------------------------------------x
G.R. No. 160310 November 10, 2003
LEONILO R. ALFONSO, PETER ALVAREZ, SAMUEL DOCTOR, MELVIN MATIBAG,
RAMON MIQUIBAS, RODOLFO MAGSINO, EDUARDO MALASAGA, EDUARDO
SARMIENTO, EDGARDO NAOE, LEONARDO GARCIA, EDGARD SMITH, EMETERIO
MENDIOLA, MARIO TOREJA, GUILLERMO CASTASUS, NELSON A. LOYOLA, WILFREDO
BELLO, JR., RONNIE TOQUILLO, KATE ANN VITAL, ANGELITA Q. GUZMAN, MONICO
PABLES, JR., JAIME BOAQUINA, LITA A. AQUINO, MILA P. GABITO, JANETTE ARROYO,
RIZALDY EMPIG, ERNA LAHUZ, HOMER CALIBAG, DR. BING ARCE, SIMEON ARCE, JR.,
EL DELLE ARCE, WILLIE RIVERO, DANTE DIAZ, ALBERTO BUENAVISTA, FAUSTO
BUENAVISTA, EMILY SENERIS, ANNA CLARISSA LOYOLA, SALVACION LOYOLA,
RAINIER QUIROLGICO, JOSEPH LEANDRO LOYOLA, ANTONIO LIBREA, FILEMON
SIBULO, MANUEL D. COMIA, JULITO U. SOON, VIRGILIO LUSTRE, AND NOEL
ISORENA, MAU RESTRIVERA, MAX VILLAESTER, AND EDILBERTO GALLOR, petitioners,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-inintervention,
vs.
THE HOUSE OF REPRESENTATIVES, REPRESENTED BY HON. SPEAKER JOSE C. DE
VENECIA, JR., THE SENATE, REPRESENTED BY HON. SENATE PRESIDENT FRANKLIN
DRILON, HON. FELIX FUENTEBELLA, ET AL., respondents.
x---------------------------------------------------------x
G.R. No. 160318 November 10, 2003
PUBLIC INTEREST CENTER, INC., CRISPIN T. REYES, petitioners,
vs.
HON. SPEAKER JOSE G. DE VENECIA, ALL MEMBERS, HOUSE OF REPRESENTATIVES,
HON. SENATE PRESIDENT FRANKLIN M. DRILON, AND ALL MEMBERS, PHILIPPINE
SENATE, respondents.
x---------------------------------------------------------x
G.R. No. 160342 November 10, 2003
ATTY. FERNANDO P.R. PERITO, IN HIS CAPACITY AS A MEMBER OF THE INTEGRATED
BAR OF THE PHILIPPINES, MANILA III, AND ENGR. MAXIMO N. MENEZ JR., IN HIS
CAPACITY AS A TAXPAYER AND MEMBER OF THE ENGINEERING
PROFESSION, petitioners,
vs.
THE HOUSE OF REPRESENTA-TIVES REPRESENTED BY THE 83 HONORABLE
MEMBERS OF THE HOUSE LED BY HON. REPRESENTATIVE WILLIAM
FUENTEBELLA, respondents.
x---------------------------------------------------------x
G.R. No. 160343 November 10, 2003
INTEGRATED BAR OF THE PHILIPPINES, petitioner,
vs.

THE HOUSE OF REPRESENTA-TIVES, THROUGH THE SPEAKER OR ACTING SPEAKER

OR PRESIDING OFFICER, SPEAKER JOSE G. DE VENECIA, REPRESENTATIVE GILBERTO
G. TEODORO, JR., REPRESENTATIVE FELIX WILLIAM B. FUENTEBELLA, THE SENATE
OF THE PHILIPPINES THROUGH ITS PRESIDENT, SENATE PRESIDENT FRANKLIN M.
DRILON, respondents.
x---------------------------------------------------------x
G.R. No. 160360 November 10, 2003
CLARO B. FLORES, petitioner,
vs.
THE HOUSE OF REPRESENTATIVES THROUGH THE SPEAKER, AND THE SENATE OF
THE PHILIPPINES, THROUGH THE SENATE PRESIDENT, respondents.
x---------------------------------------------------------x
G.R. No. 160365 November 10, 2003
U.P. LAW ALUMNI CEBU FOUNDATION, INC., GOERING G.C. PADERANGA, DANILO V.
ORTIZ, GLORIA C. ESTENZO-RAMOS, LIZA D. CORRO, LUIS V. DIORES, SR., BENJAMIN
S. RALLON, ROLANDO P. NONATO, DANTE T. RAMOS, ELSA R. DIVINAGRACIA, KAREN
B. CAPARROS-ARQUILLANO, SYLVA G. AGUIRRE-PADERANGA, FOR THEMSELVES AND
IN BEHALF OF OTHER CITIZENS OF THE REPUBLIC OF THE PHILIPPINES, petitioners,
vs.
THE HOUSE OF REPRESENTA-TIVES, SPEAKER JOSE G. DE VENECIA, THE SENATE OF
THE PHILIPPINES, SENATE PRESIDENT FRANKLIN DRILON, HOUSE
REPRESENTATIVES FELIX FUENTEBELLA AND GILBERTO TEODORO, BY THEMSELVES
AND AS REPRESENTATIVES OF THE GROUP OF MORE THAN 80 HOUSE
REPRESENTATIVES WHO SIGNED AND FILED THE IMPEACHMENT COMPLAINT
AGAINST SUPREME COURT CHIEF JUSTICE HILARIO G. DAVIDE, JR. respondents.
x---------------------------------------------------------x
G.R. No. 160370 November 10, 2003
FR. RANHILIO CALLANGAN AQUINO, petitioner,
vs.
THE HONORABLE PRESIDENT OF THE SENATE, THE HONORABLE SPEAKER OF THE
HOUSE OF REPRESENTATIVES, respondents.
x---------------------------------------------------------x
G.R. No. 160376 November 10, 2003
NILO A. MALANYAON, petitioner,
vs.
HON. FELIX WILLIAM FUENTEBELLA AND GILBERT TEODORO, IN REPRESENTATION
OF THE 86 SIGNATORIES OF THE ARTICLES OF IMPEACHMENT AGAINST CHIEF
JUSTICE HILARIO G. DAVIDE, JR. AND THE HOUSE OF REPRESENTATIVES, CONGRESS
OF THE PHILIPPINES, REPRESENTED BY ITS SPEAKER, HON. JOSE G. DE
VENECIA, respondents.
x---------------------------------------------------------x
G.R. No. 160392 November 10, 2003
VENICIO S. FLORES AND HECTOR L. HOFILEA, petitioners,
vs.
THE HOUSE OF REPRESENTATIVES, THROUGH SPEAKER JOSE G. DE VENECIA, AND
THE SENATE OF THE PHILIPPINES, THROUGH SENATE PRESIDENT FRANKLIN
DRILON, respondents.
x---------------------------------------------------------x

30

G.R. No. 160397 November 10, 2003

IN THE MATTER OF THE IMPEACHMENT COMPLAINT AGAINST CHIEF JUSTICE
HILARIO G. DAVIDE, JR., ATTY. DIOSCORO U. VALLEJOS, JR., petitioner.
x---------------------------------------------------------x
G.R. No. 160403 November 10, 2003
PHILIPPINE BAR ASSOCIATION, petitioner,
vs.
THE HOUSE OF REPRESENTATIVES, THROUGH THE SPEAKER OR PRESIDING
OFFICER, HON. JOSE G. DE VENECIA, REPRESENTATIVE GILBERTO G. TEODORO, JR.,
REPRESENTATIVE FELIX WILLIAM B. FUENTEBELA, THE SENATE OF THE
PHILIPPINES, THROUGH SENATE PRESIDENT, HON. FRANKLIN DRILON, respondents.
x---------------------------------------------------------x
G.R. No. 160405 November 10, 2003
DEMOCRITO C. BARCENAS, PRESIDENT OF IBP, CEBU CITY CHAPTER, MANUEL M.
MONZON, PRESIDING OF IBP, CEBU PROVINCE, VICTOR A. MAAMBONG, PROVINCIAL
BOARD MEMBER, ADELINO B. SITOY, DEAN OF THE COLLEG EOF LAW, UNIVERSITY
OF CEBU, YOUNG LAWYERS ASSOCAITION OF CEBU, INC. [YLAC], REPRSEENTED BY
ATTY. MANUEL LEGASPI, CONFEDERATION OF ACCREDITED MEDIATORS OF THE
PHILIPPINES, INC. [CAMP, INC], REPRESENTED BY RODERIC R. POCA, MANDAUE
LAWYERS ASSOCIATION, [MANLAW], REPRESENTED BY FELIPE VELASQUEZ,
FEDERACION INTERNACIONAL DE ABOGADAS [FIDA], REPRESENTED BY THELMA L.
JORDAN, CARLOS G. CO, PRESIENT OF CEBU CHAMBER OF COMMERCE AND
INDUSTRY AND CEBU LADY LAWYERS ASSOCIATION, INC. [CELLA, INC.], MARIBELLE
NAVARRO AND BERNARDITO FLORIDO, PAST PRESIDENT CEBU CHAMBER OF
COMMERCE AND INTEGRATED BAR OF THE PHILIPPINES, CEBU CHAPTER, petitioners,
vs.
THE HOUSE OF REPRESENTA-TIVES, REPRESENTED BY REP. JOSE G. DE VENECIA, AS
HOUSE SPEAKER AND THE SENATE, REPRESENTED BY SENATOR FRANKLIN DRILON,
AS SENATE PRESIDENT, respondents.
CARPIO MORALES, J.:
There can be no constitutional crisis arising from a conflict, no matter how passionate and
seemingly irreconcilable it may appear to be, over the determination by the independent
branches of government of the nature, scope and extent of their respective constitutional
powers where the Constitution itself provides for the means and bases for its resolution.
Our nation's history is replete with vivid illustrations of the often frictional, at times turbulent,
dynamics of the relationship among these co-equal branches. This Court is confronted with
one such today involving the legislature and the judiciary which has drawn legal luminaries to
chart antipodal courses and not a few of our countrymen to vent cacophonous sentiments
thereon.
There may indeed be some legitimacy to the characterization that the present controversy
subject of the instant petitions whether the filing of the second impeachment complaint
against Chief Justice Hilario G. Davide, Jr. with the House of Representatives falls within the
one year bar provided in the Constitution, and whether the resolution thereof is a political
question has resulted in a political crisis. Perhaps even more truth to the view that it was
brought upon by a political crisis of conscience.
In any event, it is with the absolute certainty that our Constitution is sufficient to address all
the issues which this controversy spawns that this Court unequivocally pronounces, at the
first instance, that the feared resort to extra-constitutional methods of resolving it is neither

necessary nor legally permissible. Both its resolution and protection of the public interest lie
in adherence to, not departure from, the Constitution.
In passing over the complex issues arising from the controversy, this Court is ever mindful of
the essential truth that the inviolate doctrine of separation of powers among the legislative,
executive or judicial branches of government by no means prescribes for absolute autonomy
in the discharge by each of that part of the governmental power assigned to it by the
sovereign people.
At the same time, the corollary doctrine of checks and balances which has been carefully
calibrated by the Constitution to temper the official acts of each of these three branches
must be given effect without destroying their indispensable co-equality.
Taken together, these two fundamental doctrines of republican government, intended as they
are to insure that governmental power is wielded only for the good of the people, mandate a
relationship of interdependence and coordination among these branches where the delicate
functions of enacting, interpreting and enforcing laws are harmonized to achieve a unity of
governance, guided only by what is in the greater interest and well-being of the people.
Verily, salus populi est suprema lex.
Article XI of our present 1987 Constitution provides:
ARTICLE XI
Accountability of Public Officers
SECTION 1. Public office is a public trust. Public officers and employees must at all times be
accountable to the people, serve them with utmost responsibility, integrity, loyalty, and
efficiency, act with patriotism and justice, and lead modest lives.
SECTION 2. The President, the Vice-President, the Members of the Supreme Court, the
Members of the Constitutional Commissions, and the Ombudsman may be removed from
office, on impeachment for, and conviction of, culpable violation of the Constitution, treason,
bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public
officers and employees may be removed from office as provided by law, but not by
impeachment.
SECTION 3. (1) The House of Representatives shall have the exclusive power to initiate all
cases of impeachment.
(2) A verified complaint for impeachment may be filed by any Member of the House of
Representatives or by any citizen upon a resolution of endorsement by any Member thereof,
which shall be included in the Order of Business within ten session days, and referred to the
proper Committee within three session days thereafter. The Committee, after hearing, and by
a majority vote of all its Members, shall submit its report to the House within sixty session
days from such referral, together with the corresponding resolution. The resolution shall be
calendared for consideration by the House within ten session days from receipt thereof.
(3) A vote of at least one-third of all the Members of the House shall be necessary either to
affirm a favorable resolution with the Articles of Impeachment of the Committee, or override
its contrary resolution. The vote of each Member shall be recorded.
(4) In case the verified complaint or resolution of impeachment is filed by at least one-third of
all the Members of the House, the same shall constitute the Articles of Impeachment, and
trial by the Senate shall forthwith proceed.
(5) No impeachment proceedings shall be initiated against the same official more than
once within a period of one year.
(6) The Senate shall have the sole power to try and decide all cases of impeachment. When
sitting for that purpose, the Senators shall be on oath or affirmation. When the President of
the Philippines is on trial, the Chief Justice of the Supreme Court shall preside, but shall not

31

vote. No person shall be convicted without the concurrence of two-thirds of all the Members
of the Senate.
(7) Judgment in cases of impeachment shall not extend further than removal from office and
disqualification to hold any office under the Republic of the Philippines, but the party
convicted shall nevertheless be liable and subject to prosecution, trial, and punishment
according to law.
(8) The Congress shall promulgate its rules on impeachment to effectively carry out the
purpose of this section. (Emphasis and underscoring supplied)
Following the above-quoted Section 8 of Article XI of the Constitution, the 12th Congress of
the House of Representatives adopted and approved the Rules of Procedure in Impeachment
Proceedings (House Impeachment Rules) on November 28, 2001, superseding the previous
House Impeachment Rules1 approved by the 11th Congress. The relevant distinctions
between these two Congresses' House Impeachment Rules are shown in the following
tabulation:
11TH CONGRESS RULES

12TH CONGRESS NEW RULES

RULE II
INITIATING IMPEACHMENT
Section 2. Mode of Initiating
Impeachment. Impeachment shall
be initiated only by a verified
complaint for impeachment filed by
any Member of the House of
Representatives or by any citizen
upon a resolution of endorsement by
any Member thereof or by a verified
complaint or resolution of
impeachment filed by at least onethird (1/3) of all the Members of the
House.

RULE V
BAR AGAINST INITIATION OF
IMPEACHMENT PROCEEDINGS
AGAINST THE SAME OFFICIAL
Section 16. Impeachment
Proceedings Deemed Initiated.
In cases where a Member of the
House files a verified complaint of
impeachment or a citizen files a
verified complaint that is endorsed
by a Member of the House through
a resolution of endorsement against
an impeachable officer,
impeachment proceedings against
such official are deemed initiated
on the day the Committee on
Justice finds that the verified
complaint and/or resolution against
such official, as the case may be, is
sufficient in substance, or on the
date the House votes to overturn or
affirm the finding of the said
Committee that the verified
complaint and/or resolution, as the
case may be, is not sufficient in
substance.
In cases where a verified complaint
or a resolution of impeachment is
filed or endorsed, as the case may
be, by at least one-third (1/3) of the
Members of the

House, impeachment
proceedings are deemed
initiated at the time of the
filing of such verified complaint
or resolution of impeachment
with the Secretary General.
RULE V
BAR AGAINST IMPEACHMENT
Section 14. Scope of Bar. No
impeachment proceedings shall be
initiated against the same official
more than once within the period of
one (1) year.

Section 17. Bar Against

Initiation Of Impeachment
Proceedings. Within a period of
one (1) year from the date
impeachment proceedings are
deemed initiated as provided in
Section 16 hereof, no impeachment
proceedings, as such, can be
initiated against the same official.
(Italics in the original; emphasis
and underscoring supplied)

On July 22, 2002, the House of Representatives adopted a Resolution, 2 sponsored by

Representative Felix William D. Fuentebella, which directed the Committee on Justice "to
conduct an investigation, in aid of legislation, on the manner of disbursements and
expenditures by the Chief Justice of the Supreme Court of the Judiciary Development Fund
(JDF)."3
On June 2, 2003, former President Joseph E. Estrada filed an impeachment complaint 4 (first
impeachment complaint) against Chief Justice Hilario G. Davide Jr. and seven Associate
Justices5 of this Court for "culpable violation of the Constitution, betrayal of the public trust
and other high crimes."6 The complaint was endorsed by Representatives Rolex T. Suplico,
Ronaldo B. Zamora and Didagen Piang Dilangalen,7 and was referred to the House Committee
on Justice on August 5, 20038 in accordance with Section 3(2) of Article XI of the Constitution
which reads:
Section 3(2) A verified complaint for impeachment may be filed by any Member of the House
of Representatives or by any citizen upon a resolution of endorsement by any Member
thereof, which shall be included in the Order of Business within ten session days, and referred
to the proper Committee within three session days thereafter. The Committee, after hearing,
and by a majority vote of all its Members, shall submit its report to the House within sixty
session days from such referral, together with the corresponding resolution. The resolution
shall be calendared for consideration by the House within ten session days from receipt
thereof.
The House Committee on Justice ruled on October 13, 2003 that the first impeachment
complaint was "sufficient in form,"9 but voted to dismiss the same on October 22, 2003 for
being insufficient in substance.10 To date, the Committee Report to this effect has not yet
been sent to the House in plenary in accordance with the said Section 3(2) of Article XI of the
Constitution.
Four months and three weeks since the filing on June 2, 2003 of the first complaint or on
October 23, 2003, a day after the House Committee on Justice voted to dismiss it, the second
impeachment complaint11 was filed with the Secretary General of the House12 by

32

Representatives Gilberto C. Teodoro, Jr. (First District, Tarlac) and Felix William B. Fuentebella
(Third District, Camarines Sur) against Chief Justice Hilario G. Davide, Jr., founded on the
alleged results of the legislative inquiry initiated by above-mentioned House Resolution. This
second impeachment complaint was accompanied by a "Resolution of
Endorsement/Impeachment" signed by at least one-third (1/3) of all the Members of the
House of Representatives.13
Thus arose the instant petitions against the House of Representatives, et. al., most of which
petitions contend that the filing of the second impeachment complaint is unconstitutional as
it violates the provision of Section 5 of Article XI of the Constitution that "[n]o impeachment
proceedings shall be initiated against the same official more than once within a period of one
year."
In G.R. No. 160261, petitioner Atty. Ernesto B. Francisco, Jr., alleging that he has a duty as a
member of the Integrated Bar of the Philippines to use all available legal remedies to stop an
unconstitutional impeachment, that the issues raised in his petition for Certiorari, Prohibition
and Mandamus are of transcendental importance, and that he "himself was a victim of the
capricious and arbitrary changes in the Rules of Procedure in Impeachment Proceedings
introduced by the 12th Congress,"14 posits that his right to bring an impeachment complaint
against then Ombudsman Aniano Desierto had been violated due to the capricious and
arbitrary changes in the House Impeachment Rules adopted and approved on November 28,
2001 by the House of Representatives and prays that (1) Rule V, Sections 16 and 17 and Rule
III, Sections 5, 6, 7, 8, and 9 thereof be declared unconstitutional; (2) this Court issue a writ of
mandamus directing respondents House of Representatives et. al. to comply with Article IX,
Section 3 (2), (3) and (5) of the Constitution, to return the second impeachment complaint
and/or strike it off the records of the House of Representatives, and to promulgate rules
which are consistent with the Constitution; and (3) this Court permanently enjoin respondent
House of Representatives from proceeding with the second impeachment complaint.
In G.R. No. 160262, petitioners Sedfrey M. Candelaria, et. al., as citizens and taxpayers,
alleging that the issues of the case are of transcendental importance, pray, in their petition
for Certiorari/Prohibition, the issuance of a writ "perpetually" prohibiting respondent House of
Representatives from filing any Articles of Impeachment against the Chief Justice with the
Senate; and for the issuance of a writ "perpetually" prohibiting respondents Senate and
Senate President Franklin Drilon from accepting any Articles of Impeachment against the
Chief Justice or, in the event that the Senate has accepted the same, from proceeding with
the impeachment trial.
In G.R. No. 160263, petitioners Arturo M. de Castro and Soledad Cagampang, as citizens,
taxpayers, lawyers and members of the Integrated Bar of the Philippines, alleging that their
petition for Prohibition involves public interest as it involves the use of public funds necessary
to conduct the impeachment trial on the second impeachment complaint, pray for the
issuance of a writ of prohibition enjoining Congress from conducting further proceedings on
said second impeachment complaint.
In G.R. No. 160277, petitioner Francisco I. Chavez, alleging that this Court has recognized
that he has locus standi to bring petitions of this nature in the cases of Chavez v.
PCGG15 and Chavez v. PEA-Amari Coastal Bay Development Corporation,16 prays in his
petition for Injunction that the second impeachment complaint be declared unconstitutional.
In G.R. No. 160292, petitioners Atty. Harry L. Roque, et. al., as taxpayers and members of
the legal profession, pray in their petition for Prohibition for an order prohibiting respondent
House of Representatives from drafting, adopting, approving and transmitting to the Senate

the second impeachment complaint, and respondents De Venecia and Nazareno from
transmitting the Articles of Impeachment to the Senate.
In G.R. No. 160295, petitioners Representatives Salacnib F. Baterina and Deputy Speaker
Raul M. Gonzalez, alleging that, as members of the House of Representatives, they have a
legal interest in ensuring that only constitutional impeachment proceedings are initiated,
pray in their petition for Certiorari/Prohibition that the second impeachment complaint and
any act proceeding therefrom be declared null and void.
In G.R. No. 160310, petitioners Leonilo R. Alfonso et al., claiming that they have a right to
be protected against all forms of senseless spending of taxpayers' money and that they have
an obligation to protect the Supreme Court, the Chief Justice, and the integrity of the
Judiciary, allege in their petition for Certiorari and Prohibition that it is instituted as "a class
suit" and pray that (1) the House Resolution endorsing the second impeachment complaint as
well as all issuances emanating therefrom be declared null and void; and (2) this Court enjoin
the Senate and the Senate President from taking cognizance of, hearing, trying and deciding
the second impeachment complaint, and issue a writ of prohibition commanding the Senate,
its prosecutors and agents to desist from conducting any proceedings or to act on the
impeachment complaint.
In G.R. No. 160318, petitioner Public Interest Center, Inc., whose members are citizens and
taxpayers, and its co-petitioner Crispin T. Reyes, a citizen, taxpayer and a member of the
Philippine Bar, both allege in their petition, which does not state what its nature is, that the
filing of the second impeachment complaint involves paramount public interest and pray that
Sections 16 and 17 of the House Impeachment Rules and the second impeachment
complaint/Articles of Impeachment be declared null and void.
In G.R. No. 160342, petitioner Atty. Fernando P. R. Perito, as a citizen and a member of the
Philippine Bar Association and of the Integrated Bar of the Philippines, and petitioner Engr.
Maximo N. Menez, Jr., as a taxpayer, pray in their petition for the issuance of a Temporary
Restraining Order and Permanent Injunction to enjoin the House of Representatives from
proceeding with the second impeachment complaint.
In G.R. No. 160343, petitioner Integrated Bar of the Philippines, alleging that it is mandated
by the Code of Professional Responsibility to uphold the Constitution, prays in its petition for
Certiorari and Prohibition that Sections 16 and 17 of Rule V and Sections 5, 6, 7, 8, 9 of Rule
III of the House Impeachment Rules be declared unconstitutional and that the House of
Representatives be permanently enjoined from proceeding with the second impeachment
complaint.
In G.R. No. 160360, petitioner-taxpayer Atty. Claro Flores prays in his petition for Certiorari
and Prohibition that the House Impeachment Rules be declared unconstitutional.
In G.R. No. 160365, petitioners U.P. Law Alumni Cebu Foundation Inc., et. al., in their
petition for Prohibition and Injunction which they claim is a class suit filed in behalf of all
citizens, citing Oposa v. Factoran17 which was filed in behalf of succeeding generations of
Filipinos, pray for the issuance of a writ prohibiting respondents House of Representatives
and the Senate from conducting further proceedings on the second impeachment complaint
and that this Court declare as unconstitutional the second impeachment complaint and the
acts of respondent House of Representatives in interfering with the fiscal matters of the
Judiciary.
In G.R. No. 160370, petitioner-taxpayer Father Ranhilio Callangan Aquino, alleging that the
issues in his petition for Prohibition are of national and transcendental significance and that
as an official of the Philippine Judicial Academy, he has a direct and substantial interest in the
unhampered operation of the Supreme Court and its officials in discharging their duties in

33

accordance with the Constitution, prays for the issuance of a writ prohibiting the House of
Representatives from transmitting the Articles of Impeachment to the Senate and the Senate
from receiving the same or giving the impeachment complaint due course.
In G.R. No. 160376, petitioner Nilo A. Malanyaon, as a taxpayer, alleges in his petition for
Prohibition that respondents Fuentebella and Teodoro at the time they filed the second
impeachment complaint, were "absolutely without any legal power to do so, as they acted
without jurisdiction as far as the Articles of Impeachment assail the alleged abuse of powers
of the Chief Justice to disburse the (JDF)."
In G.R. No. 160392, petitioners Attorneys Venicio S. Flores and Hector L. Hofilea, alleging
that as professors of law they have an abiding interest in the subject matter of their petition
for Certiorari and Prohibition as it pertains to a constitutional issue "which they are trying to
inculcate in the minds of their students," pray that the House of Representatives be enjoined
from endorsing and the Senate from trying the Articles of Impeachment and that the second
impeachment complaint be declared null and void.
In G.R. No. 160397, petitioner Atty. Dioscoro Vallejos, Jr., without alleging his locus standi,
but alleging that the second impeachment complaint is founded on the issue of whether or
not the Judicial Development Fund (JDF) was spent in accordance with law and that the House
of Representatives does not have exclusive jurisdiction in the examination and audit thereof,
prays in his petition "To Declare Complaint Null and Void for Lack of Cause of Action and
Jurisdiction" that the second impeachment complaint be declared null and void.
In G.R. No. 160403, petitioner Philippine Bar Association, alleging that the issues raised in
the filing of the second impeachment complaint involve matters of transcendental
importance, prays in its petition for Certiorari/Prohibition that (1) the second impeachment
complaint and all proceedings arising therefrom be declared null and void; (2) respondent
House of Representatives be prohibited from transmitting the Articles of Impeachment to the
Senate; and (3) respondent Senate be prohibited from accepting the Articles of Impeachment
and from conducting any proceedings thereon.
In G.R. No. 160405, petitioners Democrit C. Barcenas et. al., as citizens and taxpayers, pray
in their petition for Certiorari/Prohibition that (1) the second impeachment complaint as well
as the resolution of endorsement and impeachment by the respondent House of
Representatives be declared null and void and (2) respondents Senate and Senate President
Franklin Drilon be prohibited from accepting any Articles of Impeachment against the Chief
Justice or, in the event that they have accepted the same, that they be prohibited from
proceeding with the impeachment trial.
Petitions bearing docket numbers G.R. Nos. 160261, 160262 and 160263, the first three of
the eighteen which were filed before this Court,18 prayed for the issuance of a Temporary
Restraining Order and/or preliminary injunction to prevent the House of Representatives from
transmitting the Articles of Impeachment arising from the second impeachment complaint to
the Senate. Petition bearing docket number G.R. No. 160261 likewise prayed for the
declaration of the November 28, 2001 House Impeachment Rules as null and void for being
unconstitutional.
Petitions bearing docket numbers G.R. Nos. 160277, 160292 and 160295, which were filed on
October 28, 2003, sought similar relief. In addition, petition bearing docket number G.R. No.
160292 alleged that House Resolution No. 260 (calling for a legislative inquiry into the
administration by the Chief Justice of the JDF) infringes on the constitutional doctrine of
separation of powers and is a direct violation of the constitutional principle of fiscal autonomy
of the judiciary.

On October 28, 2003, during the plenary session of the House of Representatives, a motion
was put forth that the second impeachment complaint be formally transmitted to the Senate,
but it was not carried because the House of Representatives adjourned for lack of
quorum,19 and as reflected above, to date, the Articles of Impeachment have yet to be
forwarded to the Senate.
Before acting on the petitions with prayers for temporary restraining order and/or writ of
preliminary injunction which were filed on or before October 28, 2003, Justices Puno and
Vitug offered to recuse themselves, but the Court rejected their offer. Justice Panganiban
inhibited himself, but the Court directed him to participate.
Without necessarily giving the petitions due course, this Court in its Resolution of October 28,
2003, resolved to (a) consolidate the petitions; (b) require respondent House of
Representatives and the Senate, as well as the Solicitor General, to comment on the petitions
not later than 4:30 p.m. of November 3, 2003; (c) set the petitions for oral arguments on
November 5, 2003, at 10:00 a.m.; and (d) appointed distinguished legal experts as amici
curiae.20 In addition, this Court called on petitioners and respondents to maintain the status
quo, enjoining all the parties and others acting for and in their behalf to refrain from
committing acts that would render the petitions moot.
Also on October 28, 2003, when respondent House of Representatives through Speaker Jose
C. De Venecia, Jr. and/or its co-respondents, by way of special appearance, submitted a
Manifestation asserting that this Court has no jurisdiction to hear, much less prohibit or
enjoin the House of Representatives, which is an independent and co-equal branch of
government under the Constitution, from the performance of its constitutionally mandated
duty to initiate impeachment cases. On even date, Senator Aquilino Q. Pimentel, Jr., in his
own behalf, filed a Motion to Intervene (Ex Abudante Cautela)21 and Comment, praying that
"the consolidated petitions be dismissed for lack of jurisdiction of the Court over the issues
affecting the impeachment proceedings and that the sole power, authority and jurisdiction of
the Senate as the impeachment court to try and decide impeachment cases, including the
one where the Chief Justice is the respondent, be recognized and upheld pursuant to the
provisions of Article XI of the Constitution."22
Acting on the other petitions which were subsequently filed, this Court resolved to (a)
consolidate them with the earlier consolidated petitions; (b) require respondents to file their
comment not later than 4:30 p.m. of November 3, 2003; and (c) include them for oral
arguments on November 5, 2003.
On October 29, 2003, the Senate of the Philippines, through Senate President Franklin M.
Drilon, filed a Manifestation stating that insofar as it is concerned, the petitions are plainly
premature and have no basis in law or in fact, adding that as of the time of the filing of the
petitions, no justiciable issue was presented before it since (1) its constitutional duty to
constitute itself as an impeachment court commences only upon its receipt of the Articles of
Impeachment, which it had not, and (2) the principal issues raised by the petitions pertain
exclusively to the proceedings in the House of Representatives.
On October 30, 2003, Atty. Jaime Soriano filed a "Petition for Leave to Intervene" in G.R. Nos.
160261, 160262, 160263, 160277, 160292, and 160295, questioning the status
quo Resolution issued by this Court on October 28, 2003 on the ground that it would
unnecessarily put Congress and this Court in a "constitutional deadlock" and praying for the
dismissal of all the petitions as the matter in question is not yet ripe for judicial
determination.

34

On November 3, 2003, Attorneys Romulo B. Macalintal and Pete Quirino Quadra filed in G.R.
No. 160262 a "Motion for Leave of Court to Intervene and to Admit the Herein Incorporated
Petition in Intervention."
On November 4, 2003, Nagmamalasakit na mga Manananggol ng mga Manggagawang
Pilipino, Inc. filed a Motion for Intervention in G.R. No. 160261. On November 5, 2003, World
War II Veterans Legionnaires of the Philippines, Inc. also filed a "Petition-in-Intervention with
Leave to Intervene" in G.R. Nos. 160261, 160262, 160263, 160277, 160292, 160295, and
160310.
The motions for intervention were granted and both Senator Pimentel's Comment and
Attorneys Macalintal and Quadra's Petition in Intervention were admitted.
On November 5-6, 2003, this Court heard the views of the amici curiae and the arguments of
petitioners, intervenors Senator Pimentel and Attorney Makalintal, and Solicitor General
Alfredo Benipayo on the principal issues outlined in an Advisory issued by this Court on
November 3, 2003, to wit:
Whether the certiorari jurisdiction of the Supreme Court may be invoked; who can invoke it;
on what issues and at what time; and whether it should be exercised by this Court at this
time.
In discussing these issues, the following may be taken up:
a) locus standi of petitioners;
b) ripeness(prematurity; mootness);
c) political question/justiciability;
d) House's "exclusive" power to initiate all cases of impeachment;
e) Senate's "sole" power to try and decide all cases of impeachment;
f) constitutionality of the House Rules on Impeachment vis-a-vis Section 3(5) of Article XI of
the Constitution; and
g) judicial restraint (Italics in the original)
In resolving the intricate conflux of preliminary and substantive issues arising from the
instant petitions as well as the myriad arguments and opinions presented for and against the
grant of the reliefs prayed for, this Court has sifted and determined them to be as follows: (1)
the threshold and novel issue of whether or not the power of judicial review extends to those
arising from impeachment proceedings; (2) whether or not the essential pre-requisites for the
exercise of the power of judicial review have been fulfilled; and (3) the substantive issues yet
remaining. These matters shall now be discussed in seriatim.
Judicial Review
As reflected above, petitioners plead for this Court to exercise the power of judicial review to
determine the validity of the second impeachment complaint.
This Court's power of judicial review is conferred on the judicial branch of the government in
Section 1, Article VIII of our present 1987 Constitution:
SECTION 1. The judicial power shall be vested in one Supreme Court and in such lower courts
as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine whether
or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the government.
(Emphasis supplied)
Such power of judicial review was early on exhaustively expounded upon by Justice Jose P.
Laurel in the definitive 1936 case of Angara v. Electoral Commission23 after the effectivity of
the 1935 Constitution whose provisions, unlike the present Constitution, did not contain the

present provision in Article VIII, Section 1, par. 2 on what judicial power includes. Thus, Justice
Laurel discoursed:
x x x In times of social disquietude or political excitement, the great landmarks of the
Constitution are apt to be forgotten or marred, if not entirely obliterated. In cases of
conflict, the judicial department is the only constitutional organ which can be
called upon to determine the proper allocation of powers between the several
departments and among the integral or constituent units thereof.
As any human production, our Constitution is of course lacking perfection and perfectibility,
but as much as it was within the power of our people, acting through their delegates to so
provide, that instrument which is the expression of their sovereignty however limited, has
established a republican government intended to operate and function as a harmonious
whole, under a system of checks and balances, and subject to specific limitations and
restrictions provided in the said instrument. The Constitution sets forth in no uncertain
language the restrictions and limitations upon governmental powers and agencies.
If these restrictions and limitations are transcended it would be inconceivable if
the Constitution had not provided for a mechanism by which to direct the course
of government along constitutional channels, for then the distribution of powers would
be mere verbiage, the bill of rights mere expressions of sentiment, and the principles of good
government mere political apothegms. Certainly, the limitations and restrictions embodied in
our Constitution are real as they should be in any living constitution. In the United States
where no express constitutional grant is found in their constitution, the possession of this
moderating power of the courts, not to speak of its historical origin and development
there, has been set at rest by popular acquiescence for a period of more than one and a half
centuries. In our case, this moderating power is granted, if not expressly, by clear
implication from section 2 of article VIII of our Constitution.
The Constitution is a definition of the powers of government. Who is to determine the
nature, scope and extent of such powers? The Constitution itself has provided for
the instrumentality of the judiciary as the rational way. And when the judiciary
mediates to allocate constitutional boundaries, it does not assert any superiority over
the other departments; it does not in reality nullify or invalidate an act of the legislature,
but only asserts the solemn and sacred obligation assigned to it by the
Constitution to determine conflicting claims of authority under the
Constitution and to establish for the parties in an actual controversy the rights
which that instrument secures and guarantees to them. This is in truth all that is
involved in what is termed "judicial supremacy" which properly is the power of judicial
review under the Constitution. Even then, this power of judicial review is limited to actual
cases and controversies to be exercised after full opportunity of argument by the parties, and
limited further to the constitutional question raised or the very lis mota presented. Any
attempt at abstraction could only lead to dialectics and barren legal questions and to sterile
conclusions unrelated to actualities. Narrowed as its function is in this manner, the judiciary
does not pass upon questions of wisdom, justice or expediency of legislation. More than that,
courts accord the presumption of constitutionality to legislative enactments, not only
because the legislature is presumed to abide by the Constitution but also because the
judiciary in the determination of actual cases and controversies must reflect the wisdom and
justice of the people as expressed through their representatives in the executive and
legislative departments of the government.24(Italics in the original; emphasis and
underscoring supplied)

35

As pointed out by Justice Laurel, this "moderating power" to "determine the proper allocation
of powers" of the different branches of government and "to direct the course of government
along constitutional channels" is inherent in all courts25 as a necessary consequence of the
judicial power itself, which is "the power of the court to settle actual controversies involving
rights which are legally demandable and enforceable."26
Thus, even in the United States where the power of judicial review is not explicitly conferred
upon the courts by its Constitution, such power has "been set at rest by popular
acquiescence for a period of more than one and a half centuries." To be sure, it was in the
1803 leading case of Marbury v. Madison27 that the power of judicial review was first
articulated by Chief Justice Marshall, to wit:
It is also not entirely unworthy of observation, that in declaring what shall be the supreme
law of the land, the constitution itself is first mentioned; and not the laws of the United States
generally, but those only which shall be made in pursuance of the constitution, have that
rank.
Thus, the particular phraseology of the constitution of the United States confirms and
strengthens the principle, supposed to be essential to all written constitutions, that
a law repugnant to the constitution is void; and that courts, as well as other
departments, are bound by that instrument.28(Italics in the original; emphasis supplied)
In our own jurisdiction, as early as 1902, decades before its express grant in the 1935
Constitution, the power of judicial review was exercised by our courts to invalidate
constitutionally infirm acts.29 And as pointed out by noted political law professor and former
Supreme Court Justice Vicente V. Mendoza,30 the executive and legislative branches of our
government in fact effectively acknowledged this power of judicial review in Article 7 of the
Civil Code, to wit:
Article 7. Laws are repealed only by subsequent ones, and their violation or non-observance
shall not be excused by disuse, or custom or practice to the contrary.
When the courts declare a law to be inconsistent with the Constitution, the former
shall be void and the latter shall govern.
Administrative or executive acts, orders and regulations shall be valid only when
they are not contrary to the laws or the Constitution. (Emphasis supplied)
As indicated in Angara v. Electoral Commission,31 judicial review is indeed an integral
component of the delicate system of checks and balances which, together with the corollary
principle of separation of powers, forms the bedrock of our republican form of government
and insures that its vast powers are utilized only for the benefit of the people for which it
serves.
The separation of powers is a fundamental principle in our system of government.
It obtains not through express provision but by actual division in our Constitution. Each
department of the government has exclusive cognizance of matters within its jurisdiction,
and is supreme within its own sphere. But it does not follow from the fact that the three
powers are to be kept separate and distinct that the Constitution intended them to be
absolutely unrestrained and independent of each other. The Constitution has provided
for an elaborate system of checks and balances to secure coordination in the
workings of the various departments of the government. x x x And the judiciary in
turn, with the Supreme Court as the final arbiter, effectively checks the other
departments in the exercise of its power to determine the law, and hence to
declare executive and legislative acts void if violative of the
Constitution.32 (Emphasis and underscoring supplied)

In the scholarly estimation of former Supreme Court Justice Florentino Feliciano, "x x x judicial
review is essential for the maintenance and enforcement of the separation of powers and the
balancing of powers among the three great departments of government through the
definition and maintenance of the boundaries of authority and control between them." 33 To
him, "[j]udicial review is the chief, indeed the only, medium of participation or instrument of
intervention of the judiciary in that balancing operation." 34
To ensure the potency of the power of judicial review to curb grave abuse of discretion by
"any branch or instrumentalities of government," the afore-quoted Section 1, Article
VIII of the Constitution engraves, for the first time into its history, into block letter law the socalled "expanded certiorari jurisdiction" of this Court, the nature of and rationale for which
are mirrored in the following excerpt from the sponsorship speech of its proponent, former
Chief Justice Constitutional Commissioner Roberto Concepcion:
xxx
The first section starts with a sentence copied from former Constitutions. It says:
The judicial power shall be vested in one Supreme Court and in such lower courts as may be
established by law.
I suppose nobody can question it.
The next provision is new in our constitutional law. I will read it first and explain.
Judicial power includes the duty of 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
or instrumentality of the government.
Fellow Members of this Commission, this is actually a product of our experience during
martial law. As a matter of fact, it has some antecedents in the past, but the role of the
judiciary during the deposed regime was marred considerably by the circumstance
that in a number of cases against the government, which then had no legal
defense at all, the solicitor general set up the defense of political questions and
got away with it. As a consequence, certain principles concerning particularly the writ of
habeas corpus, that is, the authority of courts to order the release of political detainees, and
other matters related to the operation and effect of martial law failed because the
government set up the defense of political question. And the Supreme Court said: "Well, since
it is political, we have no authority to pass upon it." The Committee on the Judiciary feels
that this was not a proper solution of the questions involved. It did not merely
request an encroachment upon the rights of the people, but it, in effect,
encouraged further violations thereof during the martial law regime. x x x
xxx
Briefly stated, courts of justice determine the limits of power of the agencies and
offices of the government as well as those of its officers. In other words, the
judiciary is the final arbiter on the question 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 or lack of jurisdiction. This is not only a judicial power but a
duty to pass judgment on matters of this nature.
This is the background of paragraph 2 of Section 1, which means that the courts cannot
hereafter evade the duty to settle matters of this nature, by claiming that such
matters constitute a political question.35 (Italics in the original; emphasis and
underscoring supplied)

36

To determine the merits of the issues raised in the instant petitions, this Court must
necessarily turn to the Constitution itself which employs the well-settled principles of
constitutional construction.
First, verba legis, that is, wherever possible, the words used in the Constitution must be given
their ordinary meaning except where technical terms are employed. Thus, in J.M. Tuason &
Co., Inc. v. Land Tenure Administration,36 this Court, speaking through Chief Justice Enrique
Fernando, declared:
We look to the language of the document itself in our search for its meaning. We
do not of course stop there, but that is where we begin. It is to be assumed that
the words in which constitutional provisions are couched express the objective
sought to be attained. They are to be given theirordinary meaning except where
technical terms are employed in which case the significance thus attached to them
prevails. As the Constitution is not primarily a lawyer's document, it being essential for the
rule of law to obtain that it should ever be present in the people's consciousness, its
language as much as possible should be understood in the sense they have in common
use. What it says according to the text of the provision to be construed compels
acceptance and negates the power of the courts to alter it, based on the postulate that the
framers and the people mean what they say. Thus these are the cases where the need for
construction is reduced to a minimum.37 (Emphasis and underscoring supplied)
Second, where there is ambiguity, ratio legis est anima. The words of the Constitution should
be interpreted in accordance with the intent of its framers. And so did this Court apply this
principle in Civil Liberties Union v. Executive Secretary38 in this wise:
A foolproof yardstick in constitutional construction is the intention underlying the provision
under consideration. Thus, it has been held that the Court in construing a Constitution should
bear in mind the object sought to be accomplished by its adoption, and the evils, if any,
sought to be prevented or remedied. A doubtful provision will be examined in the light of the
history of the times, and the condition and circumstances under which the Constitution was
framed. The object is to ascertain the reason which induced the framers of the
Constitution to enact the particular provision and the purpose sought to be
accomplished thereby, in order to construe the whole as to make the words
consonant to that reason and calculated to effect that purpose.39 (Emphasis and
underscoring supplied)
As it did in Nitafan v. Commissioner on Internal Revenue40 where, speaking through Madame
Justice Amuerfina A. Melencio-Herrera, it declared:
x x x The ascertainment of that intent is but in keeping with the fundamental
principle of constitutional construction that the intent of the framers of the
organic law and of the people adopting it should be given effect. The primary task in
constitutional construction is to ascertain and thereafter assure the realization of the purpose
of the framers and of the people in the adoption of the Constitution. It may also be safely
assumed that the people in ratifying the Constitution were guided mainly by the
explanation offered by the framers.41 (Emphasis and underscoring supplied)
Finally, ut magis valeat quam pereat. The Constitution is to be interpreted as a whole. Thus,
in Chiongbian v. De Leon,42 this Court, through Chief Justice Manuel Moran declared:
x x x [T]he members of the Constitutional Convention could not have dedicated a
provision of our Constitution merely for the benefit of one person without
considering that it could also affect others. When they adopted subsection 2, they
permitted, if not willed, that said provision should function to the full extent of its

substance and its terms, not by itself alone, but in conjunction with all other
provisions of that great document.43 (Emphasis and underscoring supplied)
Likewise, still in Civil Liberties Union v. Executive Secretary,44 this Court affirmed that:
It is a well-established rule in constitutional construction that no one provision of
the Constitution is to be separated from all the others, to be considered alone, but
that all the provisions bearing upon a particular subject are to be brought into
view and to be so interpreted as to effectuate the great purposes of the
instrument. Sections bearing on a particular subject should be considered and
interpreted together as to effectuate the whole purpose of the Constitution and
one section is not to be allowed to defeat another, if by any reasonable
construction, the two can be made to stand together.
In other words, the court must harmonize them, if practicable, and must lean in favor of a
construction which will render every word operative, rather than one which may make the
words idle and nugatory.45(Emphasis supplied)
If, however, the plain meaning of the word is not found to be clear, resort to other aids is
available. In still the same case of Civil Liberties Union v. Executive Secretary, this Court
expounded:
While it is permissible in this jurisdiction to consult the debates and proceedings of the
constitutional convention in order to arrive at the reason and purpose of the resulting
Constitution, resort thereto may be had only when other guides fail as said
proceedings are powerless to vary the terms of the Constitution when the meaning
is clear. Debates in the constitutional convention "are of value as showing the views of the
individual members, and as indicating the reasons for their votes, but they give us no light as
to the views of the large majority who did not talk, much less of the mass of our fellow
citizens whose votes at the polls gave that instrument the force of fundamental law. We
think it safer to construe the constitution from what appears upon its face." The
proper interpretation therefore depends more on how it was understood by the
people adopting it than in the framers's understanding thereof.46 (Emphasis and
underscoring supplied)
It is in the context of the foregoing backdrop of constitutional refinement and jurisprudential
application of the power of judicial review that respondents Speaker De Venecia, et. al. and
intervenor Senator Pimentel raise the novel argument that the Constitution has excluded
impeachment proceedings from the coverage of judicial review.
Briefly stated, it is the position of respondents Speaker De Venecia et. al. that impeachment
is a political action which cannot assume a judicial character. Hence, any question, issue or
incident arising at any stage of the impeachment proceeding is beyond the reach of judicial
review.47
For his part, intervenor Senator Pimentel contends that the Senate's "sole power to
try" impeachment cases48 (1) entirely excludes the application of judicial review over it; and
(2) necessarily includes the Senate's power to determine constitutional questions relative to
impeachment proceedings.49
In furthering their arguments on the proposition that impeachment proceedings are outside
the scope of judicial review, respondents Speaker De Venecia, et. al. and intervenor Senator
Pimentel rely heavily on American authorities, principally the majority opinion in the case
of Nixon v. United States.50 Thus, they contend that the exercise of judicial review over
impeachment proceedings is inappropriate since it runs counter to the framers' decision to
allocate to different fora the powers to try impeachments and to try crimes; it disturbs the
system of checks and balances, under which impeachment is the only legislative check on

37

the judiciary; and it would create a lack of finality and difficulty in fashioning
relief.51 Respondents likewise point to deliberations on the US Constitution to show the intent
to isolate judicial power of review in cases of impeachment.
Respondents' and intervenors' reliance upon American jurisprudence, the American
Constitution and American authorities cannot be credited to support the proposition that the
Senate's "sole power to try and decide impeachment cases," as provided for under Art. XI,
Sec. 3(6) of the Constitution, is a textually demonstrable constitutional commitment of all
issues pertaining to impeachment to the legislature, to the total exclusion of the power of
judicial review to check and restrain any grave abuse of the impeachment process. Nor can it
reasonably support the interpretation that it necessarily confers upon the Senate the
inherently judicial power to determine constitutional questions incident to impeachment
proceedings.
Said American jurisprudence and authorities, much less the American Constitution, are of
dubious application for these are no longer controlling within our jurisdiction and have only
limited persuasive merit insofar as Philippine constitutional law is concerned. As held in the
case of Garcia vs. COMELEC,52 "[i]n resolving constitutional disputes, [this Court] should not
be beguiled by foreign jurisprudence some of which are hardly applicable because they have
been dictated by different constitutional settings and needs." 53 Indeed, although the
Philippine Constitution can trace its origins to that of the United States, their paths of
development have long since diverged. In the colorful words of Father Bernas, "[w]e have cut
the umbilical cord."
The major difference between the judicial power of the Philippine Supreme Court and that of
the U.S. Supreme Court is that while the power of judicial review is only impliedly granted to
the U.S. Supreme Court and is discretionary in nature, that granted to the Philippine Supreme
Court and lower courts, as expressly provided for in the Constitution, is not just a power but
also a duty, and it was given an expanded definition to include the power to correct any
grave abuse of discretion on the part of any government branch or instrumentality.
There are also glaring distinctions between the U.S. Constitution and the Philippine
Constitution with respect to the power of the House of Representatives over impeachment
proceedings. While the U.S. Constitution bestows sole power of impeachment to the House of
Representatives without limitation,54 our Constitution, though vesting in the House of
Representatives the exclusive power to initiate impeachment cases, 55 provides for several
limitations to the exercise of such power as embodied in Section 3(2), (3), (4) and (5), Article
XI thereof. These limitations include the manner of filing, required vote to impeach, and the
one year bar on the impeachment of one and the same official.
Respondents are also of the view that judicial review of impeachments undermines their
finality and may also lead to conflicts between Congress and the judiciary. Thus, they call
upon this Court to exercise judicial statesmanship on the principle that "whenever possible,
the Court should defer to the judgment of the people expressed legislatively, recognizing full
well the perils of judicial willfulness and pride." 56
But did not the people also express their will when they instituted the above-mentioned
safeguards in the Constitution? This shows that the Constitution did not intend to leave the
matter of impeachment to the sole discretion of Congress. Instead, it provided for certain
well-defined limits, or in the language of Baker v. Carr,57"judicially discoverable standards" for
determining the validity of the exercise of such discretion, through the power of judicial
review.
The cases of Romulo v. Yniguez58 and Alejandrino v. Quezon,59 cited by respondents in
support of the argument that the impeachment power is beyond the scope of judicial review,

are not in point. These cases concern the denial of petitions for writs of mandamus to compel
the legislature to perform non-ministerial acts, and do not concern the exercise of the power
of judicial review.
There is indeed a plethora of cases in which this Court exercised the power of judicial review
over congressional action. Thus, in Santiago v. Guingona, Jr.,60 this Court ruled that it is well
within the power and jurisdiction of the Court to inquire whether the Senate or its officials
committed a violation of the Constitution or grave abuse of discretion in the exercise of their
functions and prerogatives. In Tanada v. Angara,61 in seeking to nullify an act of the Philippine
Senate on the ground that it contravened the Constitution, it held that the petition raises a
justiciable controversy and that when 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. In Bondoc v. Pineda,62 this Court declared null and void a
resolution of the House of Representatives withdrawing the nomination, and rescinding the
election, of a congressman as a member of the House Electoral Tribunal for being violative of
Section 17, Article VI of the Constitution. In Coseteng v. Mitra,63 it held that the resolution of
whether the House representation in the Commission on Appointments was based on
proportional representation of the political parties as provided in Section 18, Article VI of the
Constitution is subject to judicial review. In Daza v. Singson,64 it held that the act of the House
of Representatives in removing the petitioner from the Commission on Appointments is
subject to judicial review. In Tanada v. Cuenco,65 it held that although under the Constitution,
the legislative power is vested exclusively in Congress, this does not detract from the power
of the courts to pass upon the constitutionality of acts of Congress. In Angara v. Electoral
Commission,66 it ruled that confirmation by the National Assembly of the election of any
member, irrespective of whether his election is contested, is not essential before such
member-elect may discharge the duties and enjoy the privileges of a member of the National
Assembly.
Finally, there exists no constitutional basis for the contention that the exercise of judicial
review over impeachment proceedings would upset the system of checks and balances.
Verily, the Constitution is to be interpreted as a whole and "one section is not to be allowed
to defeat another."67 Both are integral components of the calibrated system of independence
and interdependence that insures that no branch of government act beyond the powers
assigned to it by the Constitution.
Essential Requisites for Judicial Review
As clearly stated in Angara v. Electoral Commission, the courts' power of judicial review, like
almost all powers conferred by the Constitution, is subject to several limitations, namely: (1)
an actual case or controversy calling for the exercise of judicial power; (2) the person
challenging the act must have "standing" to challenge; he must have a personal and
substantial interest in the case such that he has sustained, or will sustain, direct injury as a
result of its enforcement; (3) the question of constitutionality must be raised at the earliest
possible opportunity; and (4) the issue of constitutionality must be the very lis mota of the
case.
x x x Even then, this power of judicial review is limited to actual cases and controversies to
be exercised after full opportunity of argument by the parties, and limited further to the
constitutional question raised or the very lis mota presented. Any attempt at abstraction
could only lead to dialectics and barren legal questions and to sterile conclusions unrelated to
actualities. Narrowed as its function is in this manner, the judiciary does not pass upon
questions of wisdom, justice or expediency of legislation. More than that, courts accord the
presumption of constitutionality to legislative enactments, not only because the legislature is

38

presumed to abide by the Constitution but also because the judiciary in the determination of
actual cases and controversies must reflect the wisdom and justice of the people as
expressed through their representatives in the executive and legislative departments of the
government.68 (Italics in the original)
Standing
Locus standi or legal standing or has been defined as a personal and substantial interest in
the case such that the party has sustained or will sustain direct injury as a result of the
governmental act that is being challenged. The gist of the question of standing is whether a
party alleges such personal stake in the outcome of the controversy as to assure that
concrete adverseness which sharpens the presentation of issues upon which the court
depends for illumination of difficult constitutional questions. 69
Intervenor Soriano, in praying for the dismissal of the petitions, contends that petitioners do
not have standing since only the Chief Justice has sustained and will sustain direct personal
injury. Amicus curiae former Justice Minister and Solicitor General Estelito Mendoza similarly
contends.
Upon the other hand, the Solicitor General asserts that petitioners have standing since this
Court had, in the past, accorded standing to taxpayers, voters, concerned citizens, legislators
in cases involving paramount public interest70 and transcendental importance,71 and that
procedural matters are subordinate to the need to determine whether or not the other
branches of the government have kept themselves within the limits of the Constitution and
the laws and that they have not abused the discretion given to them. 72 Amicus curiae Dean
Raul Pangalangan of the U.P. College of Law is of the same opinion, citing transcendental
importance and the well-entrenched rule exception that, when the real party in interest is
unable to vindicate his rights by seeking the same remedies, as in the case of the Chief
Justice who, for ethical reasons, cannot himself invoke the jurisdiction of this Court, the courts
will grant petitioners standing.
There is, however, a difference between the rule on real-party-in-interest and the rule on
standing, for the former is a concept of civil procedure 73 while the latter has constitutional
underpinnings.74 In view of the arguments set forth regarding standing, it behooves the Court
to reiterate the ruling in Kilosbayan, Inc. v. Morato75 to clarify what is meant by locus standi
and to distinguish it from real party-in-interest.
The difference between the rule on standing and real party in interest has been noted by
authorities thus: "It is important to note . . . that standing because of its constitutional and
public policy underpinnings, is very different from questions relating to whether a particular
plaintiff is the real party in interest or has capacity to sue. Although all three requirements
are directed towards ensuring that only certain parties can maintain an action, standing
restrictions require a partial consideration of the merits, as well as broader policy concerns
relating to the proper role of the judiciary in certain areas.
Standing is a special concern in constitutional law because in some cases suits are brought
not by parties who have been personally injured by the operation of a law or by official action
taken, but by concerned citizens, taxpayers or voters who actually sue in the public interest.
Hence the question in standing is whether such parties have "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."
xxx

On the other hand, the question as to "real party in interest" is whether he is "the party who
would be benefited or injured by the judgment, or the 'party entitled to the avails of the
suit.'"76 (Citations omitted)
While rights personal to the Chief Justice may have been injured by the alleged
unconstitutional acts of the House of Representatives, none of the petitioners before us
asserts a violation of the personal rights of the Chief Justice. On the contrary, they invariably
invoke the vindication of their own rights as taxpayers; members of Congress; citizens,
individually or in a class suit; and members of the bar and of the legal profession which
were supposedly violated by the alleged unconstitutional acts of the House of
Representatives.
In a long line of cases, however, concerned citizens, taxpayers and legislators when specific
requirements have been met have been given standing by this Court.
When suing as a citizen, the interest of the petitioner assailing the constitutionality of a
statute must be direct and personal. He must be able to show, not only that the law or any
government act is invalid, but also that he sustained or is in imminent danger of sustaining
some direct injury as a result of its enforcement, and not merely that he suffers thereby in
some indefinite way. It must appear that the person complaining 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. 77 In
fine, when the proceeding involves the assertion of a public right, 78 the mere fact that he is a
citizen satisfies the requirement of personal interest.
In the case of a taxpayer, he is allowed to sue where there is a claim that public funds are
illegally disbursed, or that public money is being deflected to any improper purpose, or that
there is a wastage of public funds through the enforcement of an invalid or unconstitutional
law.79 Before he can invoke the power of judicial review, however, he must specifically prove
that he has sufficient interest in preventing the illegal expenditure of money raised by
taxation and that he would sustain a direct injury as a result of the enforcement of the
questioned statute or contract. It is not sufficient that he has merely a general interest
common to all members of the public.80
At all events, courts are vested with discretion as to whether or not a taxpayer's suit should
be entertained.81 This Court opts to grant standing to most of the petitioners, given their
allegation that any impending transmittal to the Senate of the Articles of Impeachment and
the ensuing trial of the Chief Justice will necessarily involve the expenditure of public funds.
As for a legislator, he is allowed to sue to question the validity of any official action which he
claims infringes his prerogatives as a legislator. 82 Indeed, a member of the House of
Representatives has standing to maintain inviolate the prerogatives, powers and privileges
vested by the Constitution in his office.83
While an association has legal personality to represent its members, 84 especially when it is
composed of substantial taxpayers and the outcome will affect their vital interests, 85 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 and nothing more, although undoubtedly
true, does not suffice to clothe it with standing. Its interest is too general. It is shared by
other groups and the whole citizenry. However, a reading of the petitions shows that it has
advanced constitutional issues which deserve the attention of this Court in view of their
seriousness, novelty and weight as precedents.86 It, therefore, behooves this Court to relax
the rules on standing and to resolve the issues presented by it.
In the same vein, when dealing with class suits filed in behalf of all citizens, persons
intervening must be sufficiently numerous to fully protect the interests of all concerned 87 to

39

enable the court to deal properly with all interests involved in the suit, 88 for a judgment in a
class suit, whether favorable or unfavorable to the class, is, under the res judicata principle,
binding on all members of the class whether or not they were before the court. 89Where it
clearly appears that not all interests can be sufficiently represented as shown by the
divergent issues raised in the numerous petitions before this Court, G.R. No. 160365 as a
class suit ought to fail. Since petitionersadditionally allege standing as citizens and
taxpayers, however, their petition will stand.
The Philippine Bar Association, in G.R. No. 160403, invokes the sole ground of transcendental
importance, while Atty. Dioscoro U. Vallejos, in G.R. No. 160397, is mum on his standing.
There being no doctrinal definition of transcendental importance, the following instructive
determinants formulated by former Supreme Court Justice Florentino P. Feliciano are
instructive: (1) the character of the funds or other assets involved in the case; (2) the
presence of a clear case of disregard of a constitutional or statutory prohibition by the public
respondent agency or instrumentality of the government; and (3) the lack of any other party
with a more direct and specific interest in raising the questions being raised. 90 Applying these
determinants, this Court is satisfied that the issues raised herein are indeed of
transcendental importance.
In not a few cases, this Court has in fact adopted a liberal attitude on the locus standi of a
petitioner where the petitioner is able to craft an issue of transcendental significance to the
people, as when the issues raised are of paramount importance to the public. 91 Such liberality
does not, however, mean that the requirement that a party should have an interest in the
matter is totally eliminated. A party must, at the very least, still plead the existence of such
interest, it not being one of which courts can take judicial notice. In petitioner Vallejos' case,
he failed to allege any interest in the case. He does not thus have standing.
With respect to the motions for intervention, Rule 19, Section 2 of the Rules of Court requires
an intervenor to possess a legal interest in the matter in litigation, or in the success of either
of the parties, or an interest against both, or is so situated as to be adversely affected by a
distribution or other disposition of property in the custody of the court or of an officer thereof.
While intervention is not a matter of right, it may be permitted by the courts when the
applicant shows facts which satisfy the requirements of the law authorizing intervention. 92
In Intervenors Attorneys Romulo Macalintal and Pete Quirino Quadra's case, they seek to join
petitioners Candelaria, et. al. in G.R. No. 160262. Since, save for one additional issue, they
raise the same issues and the same standing, and no objection on the part of petitioners
Candelaria, et. al. has been interposed, this Court as earlier stated, granted the Motion for
Leave of Court to Intervene and Petition-in-Intervention.
Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc., et. al. sought to
join petitioner Francisco in G.R. No. 160261. Invoking their right as citizens to intervene,
alleging that "they will suffer if this insidious scheme of the minority members of the House
of Representatives is successful," this Court found the requisites for intervention had been
complied with.
Alleging that the issues raised in the petitions in G.R. Nos. 160261, 160262, 160263, 160277,
160292, 160295, and 160310 were of transcendental importance, World War II Veterans
Legionnaires of the Philippines, Inc. filed a "Petition-in-Intervention with Leave to Intervene"
to raise the additional issue of whether or not the second impeachment complaint against
the Chief Justice is valid and based on any of the grounds prescribed by the Constitution.
Finding that Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc., et
al. and World War II Veterans Legionnaires of the Philippines, Inc. possess a legal interest in
the matter in litigation the respective motions to intervene were hereby granted.

Senator Aquilino Pimentel, on the other hand, sought to intervene for the limited purpose of
making of record and arguing a point of view that differs with Senate President Drilon's. He
alleges that submitting to this Court's jurisdiction as the Senate President does will
undermine the independence of the Senate which will sit as an impeachment court once the
Articles of Impeachment are transmitted to it from the House of Representatives. Clearly,
Senator Pimentel possesses a legal interest in the matter in litigation, he being a member of
Congress against which the herein petitions are directed. For this reason, and to fully
ventilate all substantial issues relating to the matter at hand, his Motion to Intervene was
granted and he was, as earlier stated, allowed to argue.
Lastly, as to Jaime N. Soriano's motion to intervene, the same must be denied for, while he
asserts an interest as a taxpayer, he failed to meet the standing requirement for bringing
taxpayer's suits as set forth in Dumlao v. Comelec,93 to wit:
x x x While, concededly, the elections to be held involve the expenditure of public moneys,
nowhere in their Petition do said petitioners allege that their tax money is "being extracted
and spent in violation of specific constitutional protection against abuses of legislative
power," or that there is a misapplication of such funds by respondent COMELEC, or that
public money is being deflected to any improper purpose. Neither do petitioners seek to
restrain respondent from wasting public funds through the enforcement of an invalid or
unconstitutional law.94 (Citations omitted)
In praying for the dismissal of the petitions, Soriano failed even to allege that the act of
petitioners will result in illegal disbursement of public funds or in public money being
deflected to any improper purpose. Additionally, his mere interest as a member of the Bar
does not suffice to clothe him with standing.
Ripeness and Prematurity
In Tan v. Macapagal,95 this Court, through Chief Justice Fernando, held that for a case to be
considered ripe for adjudication, "it is a prerequisite that something had by then been
accomplished or performed by either branch before a court may come into the
picture."96 Only then may the courts pass on the validity of what was done, if and when the
latter is challenged in an appropriate legal proceeding.
The instant petitions raise in the main the issue of the validity of the filing of the second
impeachment complaint against the Chief Justice in accordance with the House Impeachment
Rules adopted by the 12th Congress, the constitutionality of which is questioned. The
questioned acts having been carried out, i.e., the second impeachment complaint had been
filed with the House of Representatives and the 2001 Rules have already been already
promulgated and enforced, the prerequisite that the alleged unconstitutional act should be
accomplished and performed before suit, as Tan v. Macapagal holds, has been complied with.
Related to the issue of ripeness is the question of whether the instant petitions are
premature. Amicus curiaeformer Senate President Jovito R. Salonga opines that there may be
no urgent need for this Court to render a decision at this time, it being the final arbiter on
questions of constitutionality anyway. He thus recommends that all remedies in the House
and Senate should first be exhausted.
Taking a similar stand is Dean Raul Pangalangan of the U.P. College of Law who suggests to
this Court to take judicial notice of on-going attempts to encourage signatories to the second
impeachment complaint to withdraw their signatures and opines that the House
Impeachment Rules provide for an opportunity for members to raise constitutional questions
themselves when the Articles of Impeachment are presented on a motion to transmit to the
same to the Senate. The dean maintains that even assuming that the Articles are transmitted

40

to the Senate, the Chief Justice can raise the issue of their constitutional infirmity by way of a
motion to dismiss.
The dean's position does not persuade. First, the withdrawal by the Representatives of their
signatures would not, by itself, cure the House Impeachment Rules of their constitutional
infirmity. Neither would such a withdrawal, by itself, obliterate the questioned second
impeachment complaint since it would only place it under the ambit of Sections 3(2) and (3)
of Article XI of the Constitution97 and, therefore, petitioners would continue to suffer their
injuries.
Second and most importantly, the futility of seeking remedies from either or both Houses of
Congress before coming to this Court is shown by the fact that, as previously discussed,
neither the House of Representatives nor the Senate is clothed with the power to rule with
definitiveness on the issue of constitutionality, whether concerning impeachment
proceedings or otherwise, as said power is exclusively vested in the judiciary by the earlier
quoted Section I, Article VIII of the Constitution. Remedy cannot be sought from a body which
is bereft of power to grant it.
Justiciability
In the leading case of Tanada v. Cuenco,98 Chief Justice Roberto Concepcion defined the term
"political question," viz:
[T]he term "political question" connotes, in legal parlance, what it means in ordinary
parlance, namely, a question of policy. In other words, in the language of Corpus Juris
Secundum, it refers to "those questions which, under the Constitution, are to be decided by
the people in their sovereign capacity, or in regard to which full discretionary authority has
been delegated to the Legislature or executive branch of the Government." It is concerned
with issues dependent upon the wisdom, not legality, of a particular measure.99 (Italics in the
original)
Prior to the 1973 Constitution, without consistency and seemingly without any rhyme or
reason, this Court vacillated on its stance of taking cognizance of cases which involved
political questions. In some cases, this Court hid behind the cover of the political question
doctrine and refused to exercise its power of judicial review. 100 In other cases, however,
despite the seeming political nature of the therein issues involved, this Court assumed
jurisdiction whenever it found constitutionally imposed limits on powers or functions
conferred upon political bodies.101 Even in the landmark 1988 case of Javellana v. Executive
Secretary102 which raised the issue of whether the 1973 Constitution was ratified, hence, in
force, this Court shunted the political question doctrine and took cognizance thereof.
Ratification by the people of a Constitution is a political question, it being a question decided
by the people in their sovereign capacity.
The frequency with which this Court invoked the political question doctrine to refuse to take
jurisdiction over certain cases during the Marcos regime motivated Chief Justice Concepcion,
when he became a Constitutional Commissioner, to clarify this Court's power of judicial
review and its application on issues involving political questions, viz:
MR. CONCEPCION. Thank you, Mr. Presiding Officer.
I will speak on the judiciary. Practically, everybody has made, I suppose, the usual comment
that the judiciary is the weakest among the three major branches of the service. Since the
legislature holds the purse and the executive the sword, the judiciary has nothing with which
to enforce its decisions or commands except the power of reason and appeal to conscience
which, after all, reflects the will of God, and is the most powerful of all other powers without
exception. x x x And so, with the body's indulgence, I will proceed to read the provisions
drafted by the Committee on the Judiciary.

The first section starts with a sentence copied from former Constitutions. It says:
The judicial power shall be vested in one Supreme Court and in such lower courts as may be
established by law.
I suppose nobody can question it.
The next provision is new in our constitutional law. I will read it first and explain.
Judicial power includes the duty of 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
or instrumentality of the government.
Fellow Members of this Commission, this is actually a product of our experience during
martial law. As a matter of fact, it has some antecedents in the past, but the role of the
judiciary during the deposed regime was marred considerably by the circumstance
that in a number of cases against the government, which then had no legal
defense at all, the solicitor general set up the defense of political questions and
got away with it. As a consequence, certain principles concerning particularly the
writ of habeas corpus, that is, the authority of courts to order the release of
political detainees, and other matters related to the operation and effect of
martial law failed because the government set up the defense of political
question. And the Supreme Court said: "Well, since it is political, we have no authority to
pass upon it." The Committee on the Judiciary feels that this was not a proper
solution of the questions involved. It did not merely request an encroachment
upon the rights of the people, but it, in effect, encouraged further violations
thereof during the martial law regime. I am sure the members of the Bar are familiar
with this situation. But for the benefit of the Members of the Commission who are not
lawyers, allow me to explain. I will start with a decision of the Supreme Court in 1973 on the
case of Javellana vs. the Secretary of Justice, if I am not mistaken. Martial law was announced
on September 22, although the proclamation was dated September 21. The obvious reason
for the delay in its publication was that the administration had apprehended and detained
prominent newsmen on September 21. So that when martial law was announced on
September 22, the media hardly published anything about it. In fact, the media could not
publish any story not only because our main writers were already incarcerated, but also
because those who succeeded them in their jobs were under mortal threat of being the
object of wrath of the ruling party. The 1971 Constitutional Convention had begun on June 1,
1971 and by September 21 or 22 had not finished the Constitution; it had barely agreed in
the fundamentals of the Constitution. I forgot to say that upon the proclamation of martial
law, some delegates to that 1971 Constitutional Convention, dozens of them, were picked up.
One of them was our very own colleague, Commissioner Calderon. So, the unfinished draft of
the Constitution was taken over by representatives of Malacaang. In 17 days, they finished
what the delegates to the 1971 Constitutional Convention had been unable to accomplish for
about 14 months. The draft of the 1973 Constitution was presented to the President around
December 1, 1972, whereupon the President issued a decree calling a plebiscite which
suspended the operation of some provisions in the martial law decree which prohibited
discussions, much less public discussions of certain matters of public concern. The purpose
was presumably to allow a free discussion on the draft of the Constitution on which a
plebiscite was to be held sometime in January 1973. If I may use a word famous by our
colleague, Commissioner Ople, during the interregnum, however, the draft of the Constitution
was analyzed and criticized with such a telling effect that Malacaang felt the danger of its
approval. So, the President suspended indefinitely the holding of the plebiscite and

41

announced that he would consult the people in a referendum to be held from January 10 to
January 15. But the questions to be submitted in the referendum were not announced until
the eve of its scheduled beginning, under the supposed supervision not of the Commission on
Elections, but of what was then designated as "citizens assemblies or barangays." Thus the
barangays came into existence. The questions to be propounded were released with
proposed answers thereto, suggesting that it was unnecessary to hold a plebiscite because
the answers given in the referendum should be regarded as the votes cast in the plebiscite.
Thereupon, a motion was filed with the Supreme Court praying that the holding of the
referendum be suspended. When the motion was being heard before the Supreme Court, the
Minister of Justice delivered to the Court a proclamation of the President declaring that the
new Constitution was already in force because the overwhelming majority of the votes cast in
the referendum favored the Constitution. Immediately after the departure of the Minister of
Justice, I proceeded to the session room where the case was being heard. I then informed the
Court and the parties the presidential proclamation declaring that the 1973 Constitution had
been ratified by the people and is now in force.
A number of other cases were filed to declare the presidential proclamation null and void. The
main defense put up by the government was that the issue was a political question and that
the court had no jurisdiction to entertain the case.
xxx
The government said that in a referendum held from January 10 to January 15, the vast
majority ratified the draft of the Constitution. Note that all members of the Supreme Court
were residents of Manila, but none of them had been notified of any referendum in their
respective places of residence, much less did they participate in the alleged referendum.
None of them saw any referendum proceeding.
In the Philippines, even local gossips spread like wild fire. So, a majority of the members of
the Court felt that there had been no referendum.
Second, a referendum cannot substitute for a plebiscite. There is a big difference
between a referendum and a plebiscite. But another group of justices upheld the
defense that the issue was a political question. Whereupon, they dismissed the
case. This is not the only major case in which the plea of "political question" was
set up. There have been a number of other cases in the past.
x x x The defense of the political question was rejected because the issue was
clearly justiciable.
xxx
x x x When your Committee on the Judiciary began to perform its functions, it faced the
following questions: What is judicial power? What is a political question?
The Supreme Court, like all other courts, has one main function: to settle actual controversies
involving conflicts of rights which are demandable and enforceable. There are rights which
are guaranteed by law but cannot be enforced by a judiciary party. In a decided case, a
husband complained that his wife was unwilling to perform her duties as a wife. The Court
said: "We can tell your wife what her duties as such are and that she is bound to comply with
them, but we cannot force her physically to discharge her main marital duty to her husband.
There are some rights guaranteed by law, but they are so personal that to enforce them by
actual compulsion would be highly derogatory to human dignity."
This is why the first part of the second paragraph of Section I provides that:
Judicial power includes the duty of courts to settle actual controversies involving rights which
are legally demandable or enforceable . . .

The courts, therefore, cannot entertain, much less decide, hypothetical questions. In a
presidential system of government, the Supreme Court has, also another
important function. The powers of government are generally considered divided
into three branches: the Legislative, the Executive and the Judiciary. Each one is
supreme within its own sphere and independent of the others. Because of that
supremacy power to determine whether a given law is valid or not is vested in
courts of justice.
Briefly stated, courts of justice determine the limits of power of the agencies and
offices of the government as well as those of its officers. In other words, the
judiciary is the final arbiter on the question 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 or lack of jurisdiction. This is not only a judicial power but a
duty to pass judgment on matters of this nature.
This is the background of paragraph 2 of Section 1, which means that the courts
cannot hereafter evade the duty to settle matters of this nature, by claiming that
such matters constitute a political question.
I have made these extended remarks to the end that the Commissioners may have an initial
food for thought on the subject of the judiciary.103 (Italics in the original; emphasis supplied)
During the deliberations of the Constitutional Commission, Chief Justice Concepcion further
clarified the concept of judicial power, thus:
MR. NOLLEDO. The Gentleman used the term "judicial power" but judicial power is
not vested in the Supreme Court alone but also in other lower courts as may be
created by law.
MR. CONCEPCION. Yes.
MR. NOLLEDO. And so, is this only an example?
MR. CONCEPCION. No, I know this is not. The Gentleman seems to identify political
questions with jurisdictional questions. But there is a difference.
MR. NOLLEDO. Because of the expression "judicial power"?
MR. CONCEPCION. No. Judicial power, as I said, refers to ordinary cases but where
there is a question as to whether the government had authority or had abused its
authority to the extent of lacking jurisdiction or excess of jurisdiction, that is not a
political question. Therefore, the court has the duty to decide.
xxx
FR. BERNAS. Ultimately, therefore, it will always have to be decided by the Supreme Court
according to the new numerical need for votes.
On another point, is it the intention of Section 1 to do away with the political
question doctrine?
MR. CONCEPCION. No.
FR. BERNAS. It is not.
MR. CONCEPCION. No, because whenever there is an abuse of discretion,
amounting to a lack of jurisdiction. . .
FR. BERNAS. So, I am satisfied with the answer that it is not intended to do away
with the political question doctrine.
MR. CONCEPCION. No, certainly not.
When this provision was originally drafted, it sought to define what is judicial
power. But the Gentleman will notice it says, "judicial power includes" and the

42

reason being that the definition that we might make may not cover all possible
areas.
FR. BERNAS. So, this is not an attempt to solve the problems arising from the
political question doctrine.
MR. CONCEPCION. It definitely does not eliminate the fact that truly political
questions are beyond the pale of judicial power. 104 (Emphasis supplied)
From the foregoing record of the proceedings of the 1986 Constitutional Commission, it is
clear that judicial power is not only a power; it is also a duty, a duty which cannot be
abdicated by the mere specter of this creature called the political question doctrine. Chief
Justice Concepcion hastened to clarify, however, that Section 1, Article VIII was not intended
to do away with "truly political questions." From this clarification it is gathered that there are
two species of political questions: (1) "truly political questions" and (2) those which "are not
truly political questions."
Truly political questions are thus beyond judicial review, the reason for respect of the doctrine
of separation of powers to be maintained. On the other hand, by virtue of Section 1, Article
VIII of the Constitution, courts can review questions which are not truly political in nature.
As pointed out by amicus curiae former dean Pacifico Agabin of the UP College of Law, this
Court has in fact in a number of cases taken jurisdiction over questions which are not truly
political following the effectivity of the present Constitution.
In Marcos v. Manglapus,105 this Court, speaking through Madame Justice Irene Cortes, held:
The present Constitution limits resort to the political question doctrine and broadens the
scope of judicial inquiry into areas which the Court, under previous constitutions, would have
normally left to the political departments to decide. 106 x x x
In Bengzon v. Senate Blue Ribbon Committee,107 through Justice Teodoro Padilla, this Court
declared:
The "allocation of constitutional boundaries" is a task that this Court must perform under the
Constitution. Moreover, as held in a recent case, "(t)he political question doctrine
neither interposes an obstacle to judicial determination of the rival claims. The
jurisdiction to delimit constitutional boundaries has been given to this Court. It
cannot abdicate that obligation mandated by the 1987 Constitution, although said
provision by no means does away with the applicability of the principle in
appropriate cases."108 (Emphasis and underscoring supplied)
And in Daza v. Singson,109 speaking through Justice Isagani Cruz, this Court ruled:
In the case now before us, the jurisdictional objection becomes even less tenable and
decisive. The reason is that, even if we were to assume that the issue presented before us
was political in nature, we would still not be precluded from resolving it under
the expanded jurisdiction conferred upon us that now covers, in proper cases, even the
political question.110 x x x (Emphasis and underscoring supplied.)
Section 1, Article VIII, of the Court does not define what are justiciable political questions and
non-justiciable political questions, however. Identification of these two species of political
questions may be problematic. There has been no clear standard. The American case
of Baker v. Carr111 attempts to provide some:
x x x Prominent on the surface of any case held to involve a political question is found
a textually demonstrable constitutional commitment of the issue to a coordinate political
department; or a lack of judicially discoverable and manageable standards for resolving it; or
the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution
without expressing lack of the respect due coordinate branches of government; or an unusual

need for questioning adherence to a political decision already made; or thepotentiality of

embarrassment from multifarious pronouncements by various departments on one
question.112 (Underscoring supplied)
Of these standards, the more reliable have been the first three: (1) a textually demonstrable
constitutional commitment of the issue to a coordinate political department; (2) the lack of
judicially discoverable and manageable standards for resolving it; and (3) the impossibility of
deciding without an initial policy determination of a kind clearly for non-judicial discretion.
These standards are not separate and distinct concepts but are interrelated to each in that
the presence of one strengthens the conclusion that the others are also present.
The problem in applying the foregoing standards is that the American concept of judicial
review is radically different from our current concept, for Section 1, Article VIII of the
Constitution provides our courts with far less discretion in determining whether they should
pass upon a constitutional issue.
In our jurisdiction, the determination of a truly political question from a non-justiciable
political question lies in the answer to the question of whether there are constitutionally
imposed limits on powers or functions conferred upon political bodies. If there are, then our
courts are duty-bound to examine whether the branch or instrumentality of the government
properly acted within such limits. This Court shall thus now apply this standard to the present
controversy.
These petitions raise five substantial issues:
I. Whether the offenses alleged in the Second impeachment complaint constitute valid
impeachable offenses under the Constitution.
II. Whether the second impeachment complaint was filed in accordance with Section 3(4),
Article XI of the Constitution.
III. Whether the legislative inquiry by the House Committee on Justice into the Judicial
Development Fund is an unconstitutional infringement of the constitutionally mandated fiscal
autonomy of the judiciary.
IV. Whether Sections 15 and 16 of Rule V of the Rules on Impeachment adopted by the 12th
Congress are unconstitutional for violating the provisions of Section 3, Article XI of the
Constitution.
V. Whether the second impeachment complaint is barred under Section 3(5) of Article XI of
the Constitution.
The first issue goes into the merits of the second impeachment complaint over which this
Court has no jurisdiction. More importantly, any discussion of this issue would require this
Court to make a determination of what constitutes an impeachable offense. Such a
determination is a purely political question which the Constitution has left to the sound
discretion of the legislation. Such an intent is clear from the deliberations of the
Constitutional Commission.113
Although Section 2 of Article XI of the Constitution enumerates six grounds for impeachment,
two of these, namely, other high crimes and betrayal of public trust, elude a precise
definition. In fact, an examination of the records of the 1986 Constitutional Commission
shows that the framers could find no better way to approximate the boundaries of betrayal of
public trust and other high crimes than by alluding to both positive and negative examples of
both, without arriving at their clear cut definition or even a standard therefor. 114 Clearly, the
issue calls upon this court to decide a non-justiciable political question which is beyond the
scope of its judicial power under Section 1, Article VIII.
Lis Mota

43

It is a well-settled maxim of adjudication that an issue assailing the constitutionality of a

governmental act should be avoided whenever possible. Thus, in the case of Sotto v.
Commission on Elections,115 this Court held:
x x x It is a well-established rule that a court should not pass upon a constitutional question
and decide a law to be unconstitutional or invalid, unless such question is raised by the
parties and that when it is raised,if the record also presents some other ground upon
which the court may rest its judgment, that course will be adopted and the
constitutional question will be left for consideration until a case arises in which a
decision upon such question will be unavoidable.116 [Emphasis and underscoring
supplied]
The same principle was applied in Luz Farms v. Secretary of Agrarian Reform,117 where this
Court invalidated Sections 13 and 32 of Republic Act No. 6657 for being confiscatory and
violative of due process, to wit:
It has been established that this Court will assume jurisdiction over a constitutional
question only if it is shown that the essential requisites of a judicial inquiry into
such a question are first satisfied. Thus, there must be an actual case or controversy
involving a conflict of legal rights susceptible of judicial determination, the constitutional
question must have been opportunely raised by the proper party, and the resolution of the
question is unavoidably necessary to the decision of the case itself.118 [Emphasis
supplied]
Succinctly put, courts will not touch the issue of constitutionality unless it is truly unavoidable
and is the very lis mota or crux of the controversy.
As noted earlier, the instant consolidated petitions, while all seeking the invalidity of the
second impeachment complaint, collectively raise several constitutional issues upon which
the outcome of this controversy could possibly be made to rest. In determining whether one,
some or all of the remaining substantial issues should be passed upon, this Court is guided
by the related cannon of adjudication that "the court should not form a rule of constitutional
law broader than is required by the precise facts to which it is applied."119
In G.R. No. 160310, petitioners Leonilo R. Alfonso, et al. argue that, among other reasons, the
second impeachment complaint is invalid since it directly resulted from a Resolution 120 calling
for a legislative inquiry into the JDF, which Resolution and legislative inquiry petitioners claim
to likewise be unconstitutional for being: (a) a violation of the rules and jurisprudence on
investigations in aid of legislation; (b) an open breach of the doctrine of separation of powers;
(c) a violation of the constitutionally mandated fiscal autonomy of the judiciary; and (d) an
assault on the independence of the judiciary.121
Without going into the merits of petitioners Alfonso, et. al.'s claims, it is the studied opinion
of this Court that the issue of the constitutionality of the said Resolution and resulting
legislative inquiry is too far removed from the issue of the validity of the second
impeachment complaint. Moreover, the resolution of said issue would, in the Court's opinion,
require it to form a rule of constitutional law touching on the separate and distinct matter of
legislative inquiries in general, which would thus be broader than is required by the facts of
these consolidated cases. This opinion is further strengthened by the fact that said
petitioners have raised other grounds in support of their petition which would not be
adversely affected by the Court's ruling.
En passant, this Court notes that a standard for the conduct of legislative inquiries has
already been enunciated by this Court in Bengzon, Jr. v. Senate Blue Ribbon Commttee,122 viz:
The 1987 Constitution expressly recognizes the power of both houses of Congress to conduct
inquiries in aid of legislation. Thus, Section 21, Article VI thereof provides:

The Senate or the House of Representatives or any of its respective committees may conduct
inquiries in aid of legislation in accordance with its duly published rules of procedure. The
rights of persons appearing in or affected by such inquiries shall be respected.
The power of both houses of Congress to conduct inquiries in aid of legislation is not,
therefore absolute or unlimited. Its exercise is circumscribed by the afore-quoted provision of
the Constitution. Thus, as provided therein, the investigation must be "in aid of legislation in
accordance with its duly published rules of procedure" and that "the rights of persons
appearing in or affected by such inquiries shall be respected." It follows then that the right
rights of persons under the Bill of Rights must be respected, including the right to due
process and the right not be compelled to testify against one's self. 123
In G.R. No. 160262, intervenors Romulo B. Macalintal and Pete Quirino Quadra, while joining
the original petition of petitioners Candelaria, et. al., introduce the new argument that since
the second impeachment complaint was verified and filed only by Representatives Gilberto
Teodoro, Jr. and Felix William Fuentebella, the same does not fall under the provisions of
Section 3 (4), Article XI of the Constitution which reads:
Section 3(4) In case the verified complaint or resolution of impeachment is filed by at least
one-third of all the Members of the House, the same shall constitute the Articles of
Impeachment, and trial by the Senate shall forthwith proceed.
They assert that while at least 81 members of the House of Representatives signed a
Resolution of Endorsement/Impeachment, the same did not satisfy the requisites for the
application of the afore-mentioned section in that the "verified complaint or resolution of
impeachment" was not filed "by at least one-third of all the Members of the House." With the
exception of Representatives Teodoro and Fuentebella, the signatories to said Resolution are
alleged to have verified the same merely as a "Resolution of Endorsement." Intervenors point
to the "Verification" of the Resolution of Endorsement which states that:
"We are the proponents/sponsors of the Resolution of Endorsement of the abovementioned
Complaint of Representatives Gilberto Teodoro and Felix William B. Fuentebella x x x" 124
Intervenors Macalintal and Quadra further claim that what the Constitution requires in order
for said second impeachment complaint to automatically become the Articles of
Impeachment and for trial in the Senate to begin "forthwith," is that the verified complaint be
"filed," not merely endorsed, by at least one-third of the Members of the House of
Representatives. Not having complied with this requirement, they concede that the second
impeachment complaint should have been calendared and referred to the House Committee
on Justice under Section 3(2), Article XI of the Constitution, viz:
Section 3(2) A verified complaint for impeachment may be filed by any Member of the House
of Representatives or by any citizen upon a resolution of endorsement by any Member
thereof, which shall be included in the Order of Business within ten session days, and referred
to the proper Committee within three session days thereafter. The Committee, after hearing,
and by a majority vote of all its Members, shall submit its report to the House within sixty
session days from such referral, together with the corresponding resolution. The resolution
shall be calendared for consideration by the House within ten session days from receipt
thereof.
Intervenors' foregoing position is echoed by Justice Maambong who opined that for Section 3
(4), Article XI of the Constitution to apply, there should be 76 or more representatives who
signed and verified the second impeachment complaint as complainants, signed and verified
the signatories to a resolution of impeachment. Justice Maambong likewise asserted that the
Resolution of Endorsement/Impeachment signed by at least one-third of the members of the
House of Representatives as endorsers is not the resolution of impeachment contemplated by

44

the Constitution, such resolution of endorsement being necessary only from at least one
Member whenever a citizen files a verified impeachment complaint.
While the foregoing issue, as argued by intervenors Macalintal and Quadra, does indeed limit
the scope of the constitutional issues to the provisions on impeachment, more compelling
considerations militate against its adoption as the lis mota or crux of the present controversy.
Chief among this is the fact that only Attorneys Macalintal and Quadra, intervenors in G.R.
No. 160262, have raised this issue as a ground for invalidating the second impeachment
complaint. Thus, to adopt this additional ground as the basis for deciding the instant
consolidated petitions would not only render for naught the efforts of the original petitioners
in G.R. No. 160262, but the efforts presented by the other petitioners as well.
Again, the decision to discard the resolution of this issue as unnecessary for the
determination of the instant cases is made easier by the fact that said intervenors Macalintal
and Quadra have joined in the petition of Candelaria, et. al., adopting the latter's arguments
and issues as their own. Consequently, they are not unduly prejudiced by this Court's
decision.
In sum, this Court holds that the two remaining issues, inextricably linked as they are,
constitute the very lis mota of the instant controversy: (1) whether Sections 15 and 16 of
Rule V of the House Impeachment Rules adopted by the 12th Congress are unconstitutional
for violating the provisions of Section 3, Article XI of the Constitution; and (2) whether, as a
result thereof, the second impeachment complaint is barred under Section 3(5) of Article XI of
the Constitution.
Judicial Restraint
Senator Pimentel urges this Court to exercise judicial restraint on the ground that the Senate,
sitting as an impeachment court, has the sole power to try and decide all cases of
impeachment. Again, this Court reiterates that the power of judicial review includes the
power of review over justiciable issues in impeachment proceedings.
On the other hand, respondents Speaker De Venecia et. al. argue that "[t]here is a moral
compulsion for the Court to not assume jurisdiction over the impeachment because all the
Members thereof are subject to impeachment."125 But this argument is very much like saying
the Legislature has a moral compulsion not to pass laws with penalty clauses because
Members of the House of Representatives are subject to them.
The exercise of judicial restraint over justiciable issues is not an option before this Court.
Adjudication may not be declined, because this Court is not legally disqualified. Nor can
jurisdiction be renounced as there is no other tribunal to which the controversy may be
referred."126 Otherwise, this Court would be shirking from its duty vested under Art. VIII, Sec.
1(2) of the Constitution. More than being clothed with authority thus, this Court is duty-bound
to take cognizance of the instant petitions.127 In the august words of amicus curiae Father
Bernas, "jurisdiction is not just a power; it is a solemn duty which may not be renounced. To
renounce it, even if it is vexatious, would be a dereliction of duty."
Even in cases where it is an interested party, the Court under our system of government
cannot inhibit itself and must rule upon the challenge because no other office has the
authority to do so.128 On the occasion that this Court had been an interested party to the
controversy before it, it has acted upon the matter "not with officiousness but in the
discharge of an unavoidable duty and, as always, with detachment and fairness." 129 After all,
"by [his] appointment to the office, the public has laid on [a member of the judiciary] their
confidence that [he] is mentally and morally fit to pass upon the merits of their varied
contentions. For this reason, they expect [him] to be fearless in [his] pursuit to render justice,

to be unafraid to displease any person, interest or power and to be equipped with a moral
fiber strong enough to resist the temptations lurking in [his] office." 130
The duty to exercise the power of adjudication regardless of interest had already been settled
in the case ofAbbas v. Senate Electoral Tribunal.131 In that case, the petitioners filed with the
respondent Senate Electoral Tribunal a Motion for Disqualification or Inhibition of the
Senators-Members thereof from the hearing and resolution of SET Case No. 002-87 on the
ground that all of them were interested parties to said case as respondents therein. This
would have reduced the Tribunal's membership to only its three Justices-Members whose
disqualification was not sought, leaving them to decide the matter. This Court held:
Where, as here, a situation is created which precludes the substitution of any Senator sitting
in the Tribunal by any of his other colleagues in the Senate without inviting the same
objections to the substitute's competence, the proposed mass disqualification, if sanctioned
and ordered, would leave the Tribunal no alternative but to abandon a duty that no other
court or body can perform, but which it cannot lawfully discharge if shorn of the participation
of its entire membership of Senators.
To our mind, this is the overriding consideration that the Tribunal be not prevented from
discharging a duty which it alone has the power to perform, the performance of which is in
the highest public interest as evidenced by its being expressly imposed by no less than the
fundamental law.
It is aptly noted in the first of the questioned Resolutions that the framers of the Constitution
could not have been unaware of the possibility of an election contest that would involve all
Senatorselect, six of whom would inevitably have to sit in judgment thereon. Indeed, such
possibility might surface again in the wake of the 1992 elections when once more, but for the
last time, all 24 seats in the Senate will be at stake. Yet the Constitution provides no scheme
or mode for settling such unusual situations or for the substitution of Senators designated to
the Tribunal whose disqualification may be sought. Litigants in such situations must simply
place their trust and hopes of vindication in the fairness and sense of justice of the Members
of the Tribunal. Justices and Senators, singly and collectively.
Let us not be misunderstood as saying that no Senator-Member of the Senate Electoral
Tribunal may inhibit or disqualify himself from sitting in judgment on any case before said
Tribunal. Every Member of the Tribunal may, as his conscience dictates, refrain from
participating in the resolution of a case where he sincerely feels that his personal interests or
biases would stand in the way of an objective and impartial judgment. What we are merely
saying is that in the light of the Constitution, the Senate Electoral Tribunal cannot legally
function as such, absent its entire membership of Senators and that no amendment of its
Rules can confer on the three Justices-Members alone the power of valid adjudication of a
senatorial election contest.
More recently in the case of Estrada v. Desierto,132 it was held that:
Moreover, to disqualify any of the members of the Court, particularly a majority of them, is
nothing short ofpro tanto depriving the Court itself of its jurisdiction as established by the
fundamental law. Disqualification of a judge is a deprivation of his judicial power. And if that
judge is the one designated by the Constitution to exercise the jurisdiction of his court, as is
the case with the Justices of this Court, the deprivation of his or their judicial power is
equivalent to the deprivation of the judicial power of the court itself. It affects the very heart
of judicial independence. The proposed mass disqualification, if sanctioned and ordered,
would leave the Court no alternative but to abandon a duty which it cannot lawfully discharge
if shorn of the participation of its entire membership of Justices. 133 (Italics in the original)

45

Besides, there are specific safeguards already laid down by the Court when it exercises its
power of judicial review.
In Demetria v. Alba,134 this Court, through Justice Marcelo Fernan cited the "seven pillars" of
limitations of the power of judicial review, enunciated by US Supreme Court Justice Brandeis
in Ashwander v. TVA135 as follows:
1. The Court will not pass upon the constitutionality of legislation in a friendly, non-adversary
proceeding, declining because to decide such questions 'is legitimate only in the last resort,
and as a necessity in the determination of real, earnest and vital controversy between
individuals. It never was the thought that, by means of a friendly suit, a party beaten in the
legislature could transfer to the courts an inquiry as to the constitutionality of the legislative
act.'
2. The Court will not 'anticipate a question of constitutional law in advance of the necessity of
deciding it.' . . . 'It is not the habit of the Court to decide questions of a constitutional nature
unless absolutely necessary to a decision of the case.'
3. The Court will not 'formulate a rule of constitutional law broader than is required by the
precise facts to which it is to be applied.'
4. The Court will not pass upon a constitutional question although properly presented by the
record, if there is also present some other ground upon which the case may be disposed of.
This rule has found most varied application. Thus, if a case can be decided on either of two
grounds, one involving a constitutional question, the other a question of statutory
construction or general law, the Court will decide only the latter. Appeals from the highest
court of a state challenging its decision of a question under the Federal Constitution are
frequently dismissed because the judgment can be sustained on an independent state
ground.
5. The Court will not pass upon the validity of a statute upon complaint of one who fails to
show that he is injured by its operation. Among the many applications of this rule, none is
more striking than the denial of the right of challenge to one who lacks a personal or property
right. Thus, the challenge by a public official interested only in the performance of his official
duty will not be entertained . . . In Fairchild v. Hughes, the Court affirmed the dismissal of a
suit brought by a citizen who sought to have the Nineteenth Amendment declared
unconstitutional. In Massachusetts v. Mellon, the challenge of the federal Maternity Act was
not entertained although made by the Commonwealth on behalf of all its citizens.
6. The Court will not pass upon the constitutionality of a statute at the instance of one who
has availed himself of its benefits.
7. When the validity of an act of the Congress is drawn in question, and even if a serious
doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain
whether a construction of the statute is fairly possible by which the question may be avoided
(citations omitted).
The foregoing "pillars" of limitation of judicial review, summarized in Ashwander v. TVA from
different decisions of the United States Supreme Court, can be encapsulated into the
following categories:
1. that there be absolute necessity of deciding a case
2. that rules of constitutional law shall be formulated only as required by the facts of the case
3. that judgment may not be sustained on some other ground
4. that there be actual injury sustained by the party by reason of the operation of the statute
5. that the parties are not in estoppel
6. that the Court upholds the presumption of constitutionality.

As stated previously, parallel guidelines have been adopted by this Court in the exercise of
judicial review:
1. actual case or controversy calling for the exercise of judicial power
2. the person challenging the act must have "standing" to challenge; he must have a
personal and substantial interest in the case such that he has sustained, or will sustain, direct
injury as a result of its enforcement
3. the question of constitutionality must be raised at the earliest possible opportunity
4. the issue of constitutionality must be the very lis mota of the case.136
Respondents Speaker de Venecia, et. al. raise another argument for judicial restraint the
possibility that "judicial review of impeachments might also lead to embarrassing conflicts
between the Congress and the [J]udiciary." They stress the need to avoid the appearance of
impropriety or conflicts of interest in judicial hearings, and the scenario that it would be
confusing and humiliating and risk serious political instability at home and abroad if the
judiciary countermanded the vote of Congress to remove an impeachable
official.137 Intervenor Soriano echoes this argument by alleging that failure of this Court to
enforce its Resolution against Congress would result in the diminution of its judicial authority
and erode public confidence and faith in the judiciary.
Such an argument, however, is specious, to say the least. As correctly stated by the Solicitor
General, the possibility of the occurrence of a constitutional crisis is not a reason for this
Court to refrain from upholding the Constitution in all impeachment cases. Justices cannot
abandon their constitutional duties just because their action may start, if not precipitate, a
crisis.
Justice Feliciano warned against the dangers when this Court refuses to act.
x x x Frequently, the fight over a controversial legislative or executive act is not regarded as
settled until the Supreme Court has passed upon the constitutionality of the act involved, the
judgment has not only juridical effects but also political consequences. Those political
consequences may follow even where the Court fails to grant the petitioner's prayer to nullify
an act for lack of the necessary number of votes. Frequently, failure to act explicitly, one way
or the other, itself constitutes a decision for the respondent and validation, or at least quasivalidation, follows." 138
Thus, in Javellana v. Executive Secretary139 where this Court was split and "in the end there
were not enough votes either to grant the petitions, or to sustain respondent's claims," 140 the
pre-existing constitutional order was disrupted which paved the way for the establishment of
the martial law regime.
Such an argument by respondents and intervenor also presumes that the coordinate
branches of the government would behave in a lawless manner and not do their duty under
the law to uphold the Constitution and obey the laws of the land. Yet there is no reason to
believe that any of the branches of government will behave in a precipitate manner and risk
social upheaval, violence, chaos and anarchy by encouraging disrespect for the fundamental
law of the land.
Substituting the word public officers for judges, this Court is well guided by the doctrine
in People v. Veneracion, towit:141
Obedience to the rule of law forms the bedrock of our system of justice. If [public officers],
under the guise of religious or political beliefs were allowed to roam unrestricted beyond
boundaries within which they are required by law to exercise the duties of their office, then
law becomes meaningless. A government of laws, not of men excludes the exercise of broad
discretionary powers by those acting under its authority. Under this system, [public officers]
are guided by the Rule of Law, and ought "to protect and enforce it without fear or favor,"

46

resist encroachments by governments, political parties, or even the interference of their own
personal beliefs.142
Constitutionality of the Rules of Procedure
for Impeachment Proceedings
adopted by the 12th Congress
Respondent House of Representatives, through Speaker De Venecia, argues that Sections 16
and 17 of Rule V of the House Impeachment Rules do not violate Section 3 (5) of Article XI of
our present Constitution, contending that the term "initiate" does not mean "to file;" that
Section 3 (1) is clear in that it is the House of Representatives, as a collective body, which
has the exclusive power to initiate all cases of impeachment; that initiate could not possibly
mean "to file" because filing can, as Section 3 (2), Article XI of the Constitution provides, only
be accomplished in 3 ways, to wit: (1) by a verified complaint for impeachment by any
member of the House of Representatives; or (2) by any citizen upon a resolution of
endorsement by any member; or (3) by at least 1/3 of all the members of the House.
Respondent House of Representatives concludes that the one year bar prohibiting the
initiation of impeachment proceedings against the same officials could not have been
violated as the impeachment complaint against Chief Justice Davide and seven Associate
Justices had not been initiated as the House of Representatives, acting as the collective body,
has yet to act on it.
The resolution of this issue thus hinges on the interpretation of the term "initiate." Resort to
statutory construction is, therefore, in order.
That the sponsor of the provision of Section 3(5) of the Constitution, Commissioner Florenz
Regalado, who eventually became an Associate Justice of this Court, agreed on the meaning
of "initiate" as "to file," as proffered and explained by Constitutional Commissioner
Maambong during the Constitutional Commission proceedings, which he (Commissioner
Regalado) as amicus curiae affirmed during the oral arguments on the instant petitions held
on November 5, 2003 at which he added that the act of "initiating" included the act of taking
initial action on the complaint, dissipates any doubt that indeed the word "initiate" as it twice
appears in Article XI (3) and (5) of the Constitution means to file the complaint and take
initial action on it.
"Initiate" of course is understood by ordinary men to mean, as dictionaries do, to begin, to
commence, or set going. As Webster's Third New International Dictionary of the English
Language concisely puts it, it means "to perform or facilitate the first action," which jibes with
Justice Regalado's position, and that of Father Bernas, who elucidated during the oral
arguments of the instant petitions on November 5, 2003 in this wise:
Briefly then, an impeachment proceeding is not a single act. It is a comlexus of acts
consisting of a beginning, a middle and an end. The end is the transmittal of the articles of
impeachment to the Senate. The middle consists of those deliberative moments leading to
the formulation of the articles of impeachment. The beginning or the initiation is the filing of
the complaint and its referral to the Committee on Justice.
Finally, it should be noted that the House Rule relied upon by Representatives Cojuangco and
Fuentebella says that impeachment is "deemed initiated" when the Justice Committee
votes in favor of impeachment or when the House reverses a contrary vote of the Committee.
Note that the Rule does not say "impeachment proceedings" are initiated but rather are
"deemed initiated." The language is recognition that initiation happened earlier, but by legal
fiction there is an attempt to postpone it to a time after actual initiation. (Emphasis and
underscoring supplied)

As stated earlier, one of the means of interpreting the Constitution is looking into the intent
of the law. Fortunately, the intent of the framers of the 1987 Constitution can be pried from
its records:
MR. MAAMBONG. With reference to Section 3, regarding the procedure and the substantive
provisions on impeachment, I understand there have been many proposals and, I think, these
would need some time for Committee action.
However, I would just like to indicate that I submitted to the Committee a resolution on
impeachment proceedings, copies of which have been furnished the Members of this body.
This is borne out of my experience as a member of the Committee on Justice, Human Rights
and Good Government which took charge of the last impeachment resolution filed before the
First Batasang Pambansa. For the information of the Committee, the resolution covers
several steps in the impeachment proceedings starting with initiation, action of
the Speaker committee action, calendaring of report, voting on the report,
transmittal referral to the Senate, trial and judgment by the Senate.
xxx
MR. MAAMBONG. Mr. Presiding Officer, I am not moving for a reconsideration of the approval
of the amendment submitted by Commissioner Regalado, but I will just make of record my
thinking that we do not really initiate the filing of the Articles of Impeachment on the
floor. The procedure, as I have pointed out earlier, was that the initiation starts
with the filing of the complaint. And what is actually done on the floor is that the
committee resolution containing the Articles of Impeachment is the one approved
by the body.
As the phraseology now runs, which may be corrected by the Committee on Style, it appears
that the initiation starts on the floor. If we only have time, I could cite examples in the case of
the impeachment proceedings of President Richard Nixon wherein the Committee on the
Judiciary submitted the recommendation, the resolution, and the Articles of Impeachment to
the body, and it was the body who approved the resolution. It is not the body which
initiates it. It only approves or disapproves the resolution. So, on that score, probably
the Committee on Style could help in rearranging these words because we have to be very
technical about this. I have been bringing with me The Rules of the House of
Representatives of the U.S. Congress. The Senate Rules are with me. The proceedings on the
case of Richard Nixon are with me. I have submitted my proposal, but the Committee has
already decided. Nevertheless, I just want to indicate this on record.
xxx
MR. MAAMBONG. I would just like to move for a reconsideration of the approval of Section 3
(3). My reconsideration will not at all affect the substance, but it is only in keeping with the
exact formulation of the Rules of the House of Representatives of the United States regarding
impeachment.
I am proposing, Madam President, without doing damage to any of this provision, that on
page 2, Section 3 (3), from lines 17 to 18, we delete the words which read: "to initiate
impeachment proceedings" and the comma (,) and insert on line 19 after the word
"resolution" the phrase WITH THE ARTICLES, and then capitalize the letter "i" in
"impeachment" and replace the word "by" with OF, so that the whole section will now read:
"A vote of at least one-third of all the Members of the House shall be necessary either to
affirm a resolution WITH THE ARTICLES of Impeachment OF the Committee or to override its
contrary resolution. The vote of each Member shall be recorded."
I already mentioned earlier yesterday that the initiation, as far as the House of
Representatives of the United States is concerned, really starts from the filing of the

47

verified complaint and every resolution to impeach always carries with it the Articles of
Impeachment. As a matter of fact, the words "Articles of Impeachment" are mentioned on
line 25 in the case of the direct filing of a verified compliant of one-third of all the Members of
the House. I will mention again, Madam President, that my amendment will not vary the
substance in any way. It is only in keeping with the uniform procedure of the House of
Representatives of the United States Congress. Thank you, Madam President. 143 (Italics in the
original; emphasis and udnerscoring supplied)
This amendment proposed by Commissioner Maambong was clarified and accepted by the
Committee on the Accountability of Public Officers.144
It is thus clear that the framers intended "initiation" to start with the filing of the complaint.
In his amicus curiaebrief, Commissioner Maambong explained that "the obvious reason in
deleting the phrase "to initiate impeachment proceedings" as contained in the text of
the provision of Section 3 (3) was to settle and make it understood once and for all
that the initiation of impeachment proceedings starts with the filing of the
complaint, and the vote of one-third of the House in a resolution of impeachment does not
initiate the impeachment proceedings which was already initiated by the filing of a
verified complaint under Section 3, paragraph (2), Article XI of the Constitution."145
Amicus curiae Constitutional Commissioner Regalado is of the same view as is Father Bernas,
who was also a member of the 1986 Constitutional Commission, that the word "initiate" as
used in Article XI, Section 3(5) means to file, both adding, however, that the filing must be
accompanied by an action to set the complaint moving.
During the oral arguments before this Court, Father Bernas clarified that the word "initiate,"
appearing in the constitutional provision on impeachment, viz:
Section 3 (1) The House of Representatives shall have the exclusive power to initiate all cases
of impeachment.
xxx
(5) No impeachment proceedings shall be initiated against the same official more than once
within a period of one year, (Emphasis supplied)
refers to two objects, "impeachment case" and "impeachment proceeding."
Father Bernas explains that in these two provisions, the common verb is "to initiate." The
object in the first sentence is "impeachment case." The object in the second sentence is
"impeachment proceeding." Following the principle of reddendo singuala sinuilis, the term
"cases" must be distinguished from the term "proceedings." An impeachment case is the
legal controversy that must be decided by the Senate. Above-quoted first provision provides
that the House, by a vote of one-third of all its members, can bring a case to the Senate. It is
in that sense that the House has "exclusive power" to initiate all cases of impeachment. No
other body can do it. However, before a decision is made to initiate a case in the Senate, a
"proceeding" must be followed to arrive at a conclusion. A proceeding must be "initiated." To
initiate, which comes from the Latin word initium, means to begin. On the other hand,
proceeding is a progressive noun. It has a beginning, a middle, and an end. It takes place not
in the Senate but in the House and consists of several steps: (1) there is the filing of a
verified complaint either by a Member of the House of Representatives or by a private citizen
endorsed by a Member of the House of the Representatives; (2) there is the processing of this
complaint by the proper Committee which may either reject the complaint or uphold it; (3)
whether the resolution of the Committee rejects or upholds the complaint, the resolution
must be forwarded to the House for further processing; and (4) there is the processing of the
same complaint by the House of Representatives which either affirms a favorable resolution
of the Committee or overrides a contrary resolution by a vote of one-third of all the members.

If at least one third of all the Members upholds the complaint, Articles of Impeachment are
prepared and transmitted to the Senate. It is at this point that the House "initiates an
impeachment case." It is at this point that an impeachable public official is successfully
impeached. That is, he or she is successfully charged with an impeachment "case" before the
Senate as impeachment court.
Father Bernas further explains: The "impeachment proceeding" is not initiated when the
complaint is transmitted to the Senate for trial because that is the end of the House
proceeding and the beginning of another proceeding, namely the trial. Neither is the
"impeachment proceeding" initiated when the House deliberates on the resolution passed on
to it by the Committee, because something prior to that has already been done. The action of
the House is already a further step in the proceeding, not its initiation or beginning.
Rather, the proceeding is initiated or begins, when a verified complaint is filed and referred to
the Committee on Justice for action. This is the initiating step which triggers the series of
steps that follow.
The framers of the Constitution also understood initiation in its ordinary meaning. Thus when
a proposal reached the floor proposing that "A vote of at least one-third of all the Members of
the House shall be necessary toinitiate impeachment proceedings," this was met by a
proposal to delete the line on the ground that the vote of the House does not initiate
impeachment proceeding but rather the filing of a complaint does. 146 Thus the line was
deleted and is not found in the present Constitution.
Father Bernas concludes that when Section 3 (5) says, "No impeachment proceeding shall be
initiated against the same official more than once within a period of one year," it means that
no second verified complaint may be accepted and referred to the Committee on Justice for
action. By his explanation, this interpretation is founded on the common understanding of the
meaning of "to initiate" which means to begin. He reminds that the Constitution is ratified by
the people, both ordinary and sophisticated, as they understand it; and that ordinary people
read ordinary meaning into ordinary words and not abstruse meaning, they ratify words as
they understand it and not as sophisticated lawyers confuse it.
To the argument that only the House of Representatives as a body can initiate impeachment
proceedings because Section 3 (1) says "The House of Representatives shall have the
exclusive power to initiate all cases of impeachment," This is a misreading of said provision
and is contrary to the principle of reddendo singula singulisby equating "impeachment cases"
with "impeachment proceeding."
From the records of the Constitutional Commission, to the amicus curiae briefs of two former
Constitutional Commissioners, it is without a doubt that the term "to initiate" refers to the
filing of the impeachment complaint coupled with Congress' taking initial action of said
complaint.
Having concluded that the initiation takes place by the act of filing and referral or
endorsement of the impeachment complaint to the House Committee on Justice or, by the
filing by at least one-third of the members of the House of Representatives with the Secretary
General of the House, the meaning of Section 3 (5) of Article XI becomes clear. Once an
impeachment complaint has been initiated, another impeachment complaint may not be filed
against the same official within a one year period.
Under Sections 16 and 17 of Rule V of the House Impeachment Rules, impeachment
proceedings are deemed initiated (1) if there is a finding by the House Committee on Justice
that the verified complaint and/or resolution is sufficient in substance, or (2) once the House
itself affirms or overturns the finding of the Committee on Justice that the verified complaint
and/or resolution is not sufficient in substance or (3) by the filing or endorsement before the

48

Secretary-General of the House of Representatives of a verified complaint or a resolution of

impeachment by at least 1/3 of the members of the House. These rules clearly contravene
Section 3 (5) of Article XI since the rules give the term "initiate" a meaning different meaning
from filing and referral.
In his amicus curiae brief, Justice Hugo Gutierrez posits that this Court could not use
contemporaneous construction as an aid in the interpretation of Sec.3 (5) of Article XI,
citing Vera v. Avelino147 wherein this Court stated that "their personal opinions (referring to
Justices who were delegates to the Constitution Convention) on the matter at issue expressed
during this Court's our deliberations stand on a different footing from the properly recorded
utterances of debates and proceedings." Further citing said case, he states that this Court
likened the former members of the Constitutional Convention to actors who are so absorbed
in their emotional roles that intelligent spectators may know more about the real meaning
because of the latter's balanced perspectives and disinterestedness. 148
Justice Gutierrez's statements have no application in the present petitions. There are at
present only two members of this Court who participated in the 1986 Constitutional
Commission Chief Justice Davide and Justice Adolf Azcuna. Chief Justice Davide has not
taken part in these proceedings for obvious reasons. Moreover, this Court has not simply
relied on the personal opinions now given by members of the Constitutional Commission, but
has examined the records of the deliberations and proceedings thereof.
Respondent House of Representatives counters that under Section 3 (8) of Article XI, it is
clear and unequivocal that it and only it has the power to make and interpret its rules
governing impeachment. Its argument is premised on the assumption that Congress
has absolute power to promulgate its rules. This assumption, however, is misplaced.
Section 3 (8) of Article XI provides that "The Congress shall promulgate its rules on
impeachment to effectively carry out the purpose of this section." Clearly, its power to
promulgate its rules on impeachment is limited by the phrase "to effectively carry out the
purpose of this section." Hence, these rules cannot contravene the very purpose of the
Constitution which said rules were intended to effectively carry out. Moreover, Section 3 of
Article XI clearly provides for other specific limitations on its power to make rules, viz:
Section 3. (1) x x x
(2) A verified complaint for impeachment may be filed by any Member of the House of
Representatives or by any citizen upon a resolution of endorsement by any Member thereof,
which shall be included in the Order of Business within ten session days, and referred to the
proper Committee within three session days thereafter. The Committee, after hearing, and by
a majority vote of all its Members, shall submit its report to the House within sixty session
days from such referral, together with the corresponding resolution. The resolution shall be
calendared for consideration by the House within ten session days from receipt thereof.
(3) A vote of at least one-third of all the Members of the House shall be necessary to either
affirm a favorable resolution with the Articles of Impeachment of the Committee, or override
its contrary resolution. The vote of each Member shall be recorded.
(4) In case the verified complaint or resolution of impeachment is filed by at least one-third of
all the Members of the House, the same shall constitute the Articles of Impeachment, and
trial by the Senate shall forthwith proceed.
(5) No impeachment proceedings shall be initiated against the same official more than once
within a period of one year.
It is basic that all rules must not contravene the Constitution which is the fundamental law. If
as alleged Congress had absolute rule making power, then it would by necessary implication

have the power to alter or amend the meaning of the Constitution without need of
referendum.
In Osmea v. Pendatun,149 this Court held that it is within the province of either House of
Congress to interpret its rules and that it was the best judge of what constituted "disorderly
behavior" of its members. However, in Paceta v. Secretary of the Commission on
Appointments,150 Justice (later Chief Justice) Enrique Fernando, speaking for this Court and
quoting Justice Brandeis in United States v. Smith,151 declared that where the construction to
be given to a rule affects persons other than members of the Legislature, the question
becomes judicial in nature. InArroyo v. De Venecia,152 quoting United States v. Ballin, Joseph
& Co.,153 Justice Vicente Mendoza, speaking for this Court, held that while the Constitution
empowers each house to determine its rules of proceedings, it may not by its rules ignore
constitutional restraints or violate fundamental rights, and further that there should be a
reasonable relation between the mode or method of proceeding established by the rule and
the result which is sought to be attained. It is only within these limitations that all matters of
method are open to the determination of the Legislature. In the same case of Arroyo v. De
Venecia, Justice Reynato S. Puno, in his Concurring and Dissenting Opinion, was even more
emphatic as he stressed that in the Philippine setting there is even more reason for courts to
inquire into the validity of the Rules of Congress, viz:
With due respect, I do not agree that the issues posed by the petitioner are nonjusticiable. Nor do I agree that we will trivialize the principle of separation of
power if we assume jurisdiction over he case at bar. Even in the United States, the
principle of separation of power is no longer an impregnable impediment against the
interposition of judicial power on cases involving breach of rules of procedure by legislators.
Rightly, the ponencia uses the 1891 case of US v Ballin (144 US 1) as a window to view the
issues before the Court. It is in Ballin where the US Supreme Court first defined the
boundaries of the power of the judiciary to review congressional rules. It held:
"x x x
"The Constitution, in the same section, provides, that each house may determine the rules of
its proceedings." It appears that in pursuance of this authority the House had, prior to that
day, passed this as one of its rules:
Rule XV
3. On the demand of any member, or at the suggestion of the Speaker, the names of
members sufficient to make a quorum in the hall of the House who do not vote shall be noted
by the clerk and recorded in the journal, and reported to the Speaker with the names of the
members voting, and be counted and announced in determining the presence of a quorum to
do business. (House Journal, 230, Feb. 14, 1890)
The action taken was in direct compliance with this rule. The question, therefore, is as to
the validity of this rule, and not what methods the Speaker may of his own motion resort
to for determining the presence of a quorum, nor what matters the Speaker or clerk may of
their own volition place upon the journal. Neither do the advantages or disadvantages, the
wisdom or folly, of such a rule present any matters for judicial consideration. With the courts
the question is only one of power. The Constitution empowers each house to
determine its rules of proceedings. It may not by its rules ignore constitutional
restraints or violate fundamental rights, and there should be a reasonable relation
between the mode or method of proceedings established by the rule and the
result which is sought to be attained. But within these limitations all matters of
method are open to the determination of the House, and it is no impeachment of the rule to
say that some other way would be better, more accurate, or even more just. It is no objection

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to the validity of a rule that a different one has been prescribed and in force for a length of
time. The power to make rules is not one which once exercised is exhausted. It is a
continuous power, always subject to be exercised by the House, and within the limitations
suggested, absolute and beyond the challenge of any other body or tribunal."
Ballin, clearly confirmed the jurisdiction of courts to pass upon the validity of
congressional rules, i.e, whether they are constitutional. Rule XV was examined by
the Court and it was found to satisfy the test: (1) that it did not ignore any constitutional
restraint; (2) it did not violate any fundamental right; and (3) its method had a reasonable
relationship with the result sought to be attained. By examining Rule XV, the Court did not
allow its jurisdiction to be defeated by the mere invocation of the principle of separation of
powers.154
xxx
In the Philippine setting, there is a more compelling reason for courts to
categorically reject the political question defense when its interposition will cover
up abuse of power. For section 1, Article VIII of our Constitution
was intentionally cobbled to empower courts "x x x 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." This
power is new and was not granted to our courts in the 1935 and 1972 Constitutions. It was
not also xeroxed from the US Constitution or any foreign state constitution. The
CONCOM granted this enormous power to our courts in view of our experience
under martial law where abusive exercises of state power were shielded from
judicial scrutiny by the misuse of the political question doctrine. Led by the eminent
former Chief Justice Roberto Concepcion, the CONCOM expanded and sharpened the
checking powers of the judiciary vis--vis the Executive and the Legislative departments of
government.155
xxx
The Constitution cannot be any clearer. What it granted to this Court is not a mere
power which it can decline to exercise. Precisely to deter this disinclination, the
Constitution imposed it as a duty of this Court to strike down any act of a branch
or instrumentality of government or any of its officials done with grave abuse of
discretion amounting to lack or excess of jurisdiction. Rightly or wrongly, the
Constitution has elongated the checking powers of this Court against the other branches of
government despite their more democratic character, the President and the legislators being
elected by the people.156
xxx
The provision defining judicial power as including the 'duty of the courts of justice. . . 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'
constitutes the capstone of the efforts of the Constitutional Commission to upgrade the
powers of this court vis--vis the other branches of government. This provision was dictated
by our experience under martial law which taught us that a stronger and more independent
judiciary is needed to abort abuses in government. x x x
xxx
In sum, I submit that in imposing to this Court the duty to annul acts of government
committed with grave abuse of discretion, the new Constitution transformed this Court from
passivity to activism. This transformation, dictated by our distinct experience as nation, is not
merely evolutionary but revolutionary.Under the 1935 and the 1973 Constitutions, this Court

approached constitutional violations by initially determining what it cannot do; under the
1987 Constitution, there is a shift in stress this Court is mandated to approach
constitutional violations not by finding out what it should not do but what
it must do. The Court must discharge this solemn duty by not resuscitating a past that
petrifies the present.
I urge my brethren in the Court to give due and serious consideration to this new
constitutional provision as the case at bar once more calls us to define the parameters of our
power to review violations of the rules of the House. We will not be true to our trust as
the last bulwark against government abuses if we refuse to exercise this new
power or if we wield it with timidity. To be sure, it is this exceeding timidity to
unsheathe the judicial sword that has increasingly emboldened other branches of
government to denigrate, if not defy, orders of our courts. In Tolentino, I endorsed the
view of former Senator Salonga that this novel provision stretching the latitude of judicial
power is distinctly Filipino and its interpretation should not be depreciated by undue reliance
on inapplicable foreign jurisprudence. In resolving the case at bar, the lessons of our own
history should provide us the light and not the experience of foreigners. 157 (Italics in the
original emphasis and underscoring supplied)
Thus, the ruling in Osmena v. Pendatun is not applicable to the instant petitions. Here, the
third parties alleging the violation of private rights and the Constitution are involved.
Neither may respondent House of Representatives' rely on Nixon v. US158 as basis for arguing
that this Court may not decide on the constitutionality of Sections 16 and 17 of the House
Impeachment Rules. As already observed, the U.S. Federal Constitution simply provides that
"the House of Representatives shall have the sole power of impeachment." It adds nothing
more. It gives no clue whatsoever as to how this "sole power" is to be exercised. No limitation
whatsoever is given. Thus, the US Supreme Court concluded that there was a textually
demonstrable constitutional commitment of a constitutional power to the House of
Representatives. This reasoning does not hold with regard to impeachment power of the
Philippine House of Representatives since our Constitution, as earlier enumerated, furnishes
several provisions articulating how that "exclusive power" is to be exercised.
The provisions of Sections 16 and 17 of Rule V of the House Impeachment Rules which state
that impeachment proceedings are deemed initiated (1) if there is a finding by the House
Committee on Justice that the verified complaint and/or resolution is sufficient in substance,
or (2) once the House itself affirms or overturns the finding of the Committee on Justice that
the verified complaint and/or resolution is not sufficient in substance or (3) by the filing or
endorsement before the Secretary-General of the House of Representatives of a verified
complaint or a resolution of impeachment by at least 1/3 of the members of the House thus
clearly contravene Section 3 (5) of Article XI as they give the term "initiate" a meaning
different from "filing."
Validity of the Second Impeachment Complaint
Having concluded that the initiation takes place by the act of filing of the impeachment
complaint and referral to the House Committee on Justice, the initial action taken thereon,
the meaning of Section 3 (5) of Article XI becomes clear. Once an impeachment complaint
has been initiated in the foregoing manner, another may not be filed against the same official
within a one year period following Article XI, Section 3(5) of the Constitution.
In fine, considering that the first impeachment complaint, was filed by former President
Estrada against Chief Justice Hilario G. Davide, Jr., along with seven associate justices of this
Court, on June 2, 2003 and referred to the House Committee on Justice on August 5, 2003,
the second impeachment complaint filed by Representatives Gilberto C. Teodoro, Jr. and Felix

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William Fuentebella against the Chief Justice on October 23, 2003 violates the constitutional
prohibition against the initiation of impeachment proceedings against the same impeachable
officer within a one-year period.
Conclusion
If there is anything constant about this country, it is that there is always a phenomenon that
takes the center stage of our individual and collective consciousness as a people with our
characteristic flair for human drama, conflict or tragedy. Of course this is not to demean the
seriousness of the controversy over the Davide impeachment. For many of us, the past two
weeks have proven to be an exasperating, mentally and emotionally exhausting experience.
Both sides have fought bitterly a dialectical struggle to articulate what they respectively
believe to be the correct position or view on the issues involved. Passions had ran high as
demonstrators, whether for or against the impeachment of the Chief Justice, took to the
streets armed with their familiar slogans and chants to air their voice on the matter. Various
sectors of society - from the business, retired military, to the academe and denominations of
faith offered suggestions for a return to a state of normalcy in the official relations of the
governmental branches affected to obviate any perceived resulting instability upon areas of
national life.
Through all these and as early as the time when the Articles of Impeachment had been
constituted, this Court was specifically asked, told, urged and argued to take no action of any
kind and form with respect to the prosecution by the House of Representatives of the
impeachment complaint against the subject respondent public official. When the present
petitions were knocking so to speak at the doorsteps of this Court, the same clamor for noninterference was made through what are now the arguments of "lack of jurisdiction," "nonjusticiability," and "judicial self-restraint" aimed at halting the Court from any move that may
have a bearing on the impeachment proceedings.
This Court did not heed the call to adopt a hands-off stance as far as the question of the
constitutionality of initiating the impeachment complaint against Chief Justice Davide is
concerned. To reiterate what has been already explained, the Court found the existence in full
of all the requisite conditions for its exercise of its constitutionally vested power and duty of
judicial review over an issue whose resolution precisely called for the construction or
interpretation of a provision of the fundamental law of the land. What lies in here is an issue
of a genuine constitutional material which only this Court can properly and competently
address and adjudicate in accordance with the clear-cut allocation of powers under our
system of government. Face-to-face thus with a matter or problem that squarely falls under
the Court's jurisdiction, no other course of action can be had but for it to pass upon that
problem head on.
The claim, therefore, that this Court by judicially entangling itself with the process of
impeachment has effectively set up a regime of judicial supremacy, is patently without basis
in fact and in law.
This Court in the present petitions subjected to judicial scrutiny and resolved on the merits
only the main issue of whether the impeachment proceedings initiated against the Chief
Justice transgressed the constitutionally imposed one-year time bar rule. Beyond this, it did
not go about assuming jurisdiction where it had none, nor indiscriminately turn justiciable
issues out of decidedly political questions. Because it is not at all the business of this Court to
assert judicial dominance over the other two great branches of the government. Rather, the
raison d'etre of the judiciary is to complement the discharge by the executive and legislative
of their own powers to bring about ultimately the beneficent effects of having founded and
ordered our society upon the rule of law.

It is suggested that by our taking cognizance of the issue of constitutionality of the

impeachment proceedings against the Chief Justice, the members of this Court have actually
closed ranks to protect a brethren. That the members' interests in ruling on said issue is as
much at stake as is that of the Chief Justice. Nothing could be farther from the truth.
The institution that is the Supreme Court together with all other courts has long held and
been entrusted with the judicial power to resolve conflicting legal rights regardless of the
personalities involved in the suits or actions. This Court has dispensed justice over the course
of time, unaffected by whomsoever stood to benefit or suffer therefrom, unfraid by whatever
imputations or speculations could be made to it, so long as it rendered judgment according to
the law and the facts. Why can it not now be trusted to wield judicial power in these petitions
just because it is the highest ranking magistrate who is involved when it is an
incontrovertible fact that the fundamental issue is not him but the validity of a government
branch's official act as tested by the limits set by the Constitution? Of course, there are rules
on the inhibition of any member of the judiciary from taking part in a case in specified
instances. But to disqualify this entire institution now from the suit at bar is to regard the
Supreme Court as likely incapable of impartiality when one of its members is a party to a
case, which is simply a non sequitur.
No one is above the law or the Constitution. This is a basic precept in any legal system which
recognizes equality of all men before the law as essential to the law's moral authority and
that of its agents to secure respect for and obedience to its commands. Perhaps, there is no
other government branch or instrumentality that is most zealous in protecting that principle
of legal equality other than the Supreme Court which has discerned its real meaning and
ramifications through its application to numerous cases especially of the high-profile kind in
the annals of jurisprudence. The Chief Justice is not above the law and neither is any other
member of this Court. But just because he is the Chief Justice does not imply that he gets to
have less in law than anybody else. The law is solicitous of every individual's rights
irrespective of his station in life.
The Filipino nation and its democratic institutions have no doubt been put to test once again
by this impeachment case against Chief Justice Hilario Davide. Accordingly, this Court has
resorted to no other than the Constitution in search for a solution to what many feared would
ripen to a crisis in government. But though it is indeed immensely a blessing for this Court to
have found answers in our bedrock of legal principles, it is equally important that it went
through this crucible of a democratic process, if only to discover that it can resolve
differences without the use of force and aggression upon each other.
WHEREFORE, Sections 16 and 17 of Rule V of the Rules of Procedure in Impeachment
Proceedings which were approved by the House of Representatives on November 28, 2001
are unconstitutional. Consequently, the second impeachment complaint against Chief Justice
Hilario G. Davide, Jr. which was filed by Representatives Gilberto C. Teodoro, Jr. and Felix
William B. Fuentebella with the Office of the Secretary General of the House of
Representatives on October 23, 2003 is barred under paragraph 5, section 3 of Article XI of
the Constitution.
SO ORDERED.
Bellosillo and Tinga, JJ., see separate opinion.
Puno, and Ynares-Santiago, J., see concurring and dissenting opinion.
Vitug, Panganiban, Sandoval-Gutierrez and Callejo, Sr., JJ., see separate concurring opinion.
Quisumbing, J., concurring separate opinion received.
Carpio, J., concur.
Austria-Martinez, J., concur in the majority opinion and in the separate opinion of J. Vitug.

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Corona, J., will write a separate concurring opinion.

Azcuna, J., concur in the separate opinion.

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