Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No.

L-14279 October 31, 1961 THE COMMISSIONER O CUSTOMS !"# THE COLLECTOR O CUSTOMS, petitioners, vs. E$STERN SE$ TR$%ING, respondent. Office of the Solicitor General for petitioners. Valentin Gutierrez for respondent. CONCEPCION, J.: Petition for review of a judg ent of the Court of !a" Appeals reversing a decision of the Co issioner of Custo s. Respondent Eastern #ea !rading was the consignee of several ship ents of onion and garlic which arrived at the Port of Manila fro August $% to #epte ber &, '(%). #o e ship ents ca e fro *apan and others fro +ong ,ong. -n as uch as none of the ship ents had the certificate re.uired b/ Central Ban0 Circulars Nos. )) and )% for the release thereof, the goods thus i ported were sei1ed and subjected to forfeiture proceedings for alleged violations of section '2324f5 of the Revised Ad inistrative Code, in relation to the afore entioned circulars of the Central Ban0. -n due course, the Collector of Custo s of Manila rendered a decision on #epte ber ), '(%3, declaring said goods forfeited to the 6overn ent and 7 the goods having been, in the eanti e, released to the consignees on suret/ bonds, filed b/ the sa e, as principal, and the Alto #uret/ 8 -nsurance Co., -nc., as suret/, in co pliance with orders of the Court of 9irst -nstance of Manila, in Civil Cases Nos. $2()$ and $2:%$ thereof 7 directing that the a ounts of said bonds be paid, b/ said principal and suret/, jointl/ and severall/, to the Bureau of Custo s, within thirt/ 42;5 da/s fro notice. <n appeal ta0en b/ the consignee, said decision was affir ed b/ the Co issioner of Custo s on =ece ber $&, '(%3. #ubse.uentl/, the consignee sought a review of the decision of said two 4$5 officers b/ the Court of !a" Appeals, which reversed the decision of the Co issioner of Custo s and ordered that the afore entioned bonds be cancelled and withdrawn. +ence, the present petition of the Co issioner of Custo s for review of the decision of the Court of !a" Appeals. !he latter is based upon the following pre ises, na el/> that the Central Ban0 has no authorit/ to regulate transactions not involving foreign e"change? that the ship ents in .uestion are in the nature of @noAdollar@ i ports? that, as such, the afore entioned ship ents do not involve foreign e"change? that, insofar as a Central Ban0 license and a certificate authori1ing the i portation or release of the goods under consideration are re.uired b/ Central Ban0 Circulars Nos. )) and )%, the latter are null and void? and that the sei1ure and forfeiture of the goods i ported fro *apan

cannot be justified under E"ecutive <rder No. 2$:, ' not onl/ because the sa e see0s to i ple ent an e"ecutive agree ent $ 7 e"tending the effectivit/ of our2 !rades and 9inancial Agree ents) with *apan 7 which 4e"ecutive agree ent5, it believed, is of dubious validit/, but, also, because there is no govern ental agenc/ authori1ed to issue the i port license re.uired b/ the afore entioned e"ecutive order. !he authorit/ of the Central Ban0 to regulate noAdollar i ports and the validit/ of the afore entioned Circulars Nos. )), and )% have alread/ been passed upon and repeatedl/ upheld b/ this Court 4Pascual vs. Co issioner of Custo s, BA';(&( C*une 2;, '(%(D? Acting Co issioner of Custo s vs. Beuterio, BA(')$ C<ctober '&, '(%(D Co issioner of Custo s vs. Pascual, BA(:23 CNove ber ':, '(%(D? Co issioner of Custo s vs. #erree -nvest ent Co., BA'$;;& CMa/ '3, '(3;D? Co issioner of Custo s vs. #erree -nvest ent Co., BA')$&) CNove ber $(, '(3;D5, for the reason that the broad powers of the Central Ban0, under its charter, to aintain our onetar/ stabilit/ and to preserve the international value of our currenc/, under section $ of Republic Act No. $3%, in relation to section ') of said Act 7 authori1ing the ban0 to issue such rules and regulations as it a/ consider necessar/ for the effective discharge of the responsibilities and the e"ercise of the powers assigned to the Monetar/ Board and to the Central Ban0 7 connote the authorit/ to regulate noAdollar i ports, owing to the influence and effect that the sa e a/ and do have upon the stabilit/ of our peso and its international value. !he Court of !a" Appeals entertained doubts on the legalit/ of the e"ecutive agree ent sought to be i ple ented b/ E"ecutive <rder No. 2$:, owing to the fact that our #enate had not concurred in the a0ing of said e"ecutive agree ent. !he concurrence of said +ouse of Congress is re.uired b/ our funda ental law in the a0ing of @treaties@ 4Constitution of the Philippines, Article E--, #ection ';C&D5, which are, however, distinct and different fro @e"ecutive agree ents,@ which a/ be validl/ entered into without such concurrence. !reaties are for al docu ents which re.uire ratification with the approval of two thirds of the #enate. E"ecutive agree ents beco e binding through e"ecutive action without the need of a vote b/ the #enate or b/ Congress. """ """ """ . . . the right of the E"ecutive to enter into binding agree ents without the necessit/ of subse.uent Congressional approval has been confirmed by long usage. 9ro the earliest da/s of our histor/ we have entered into e"ecutive agree ents covering such subjects as co ercial and consular relations, ostAfavoredAnation rights, patent rights, trade ar0 and cop/right protection, postal and navigation arrange ents and the settle ent of clai s. The validity of these has never been seriously questioned by our courts. """ """ """

Agree ents with respect to the registration of tradeA ar0s have been concluded b/ the E"ecutive with various countries under the Act of Congress of March 2, '::' 4$' #tat. %;$5. Postal conventions regulating the reciprocal treat ent of ail atters, one/ orders, parcel post, etc., have been concluded b/ the Post aster 6eneral with various countries under authori1ation b/ Congress beginning with the Act of 9ebruar/ $;, '&($ 4' #tat. $2$, $2(5. !en e"ecutive agree ents were concluded b/ the President pursuant to the Mc,inle/ !ariff Act of ':(; 4$3 #tat. %3&, 3'$5, and nine such agree ents were entered into under the =ingle/ !ariff Act ':(& 42; #tat. '%', $;2, $')5. A ver/ uch larger nu ber of agree ents, along the lines of the one with Ru ania previousl/ referred to, providing for ostAfavoredAnation treat ent in custo s and related atters have been entered into since the passage of the !ariff Act of '($$, not b/ direction of the Act but in har on/ with it. """ """ """ -nternational agree ents involving political issues or changes of national polic/ and those involving international arrange ents of a per anent character usuall/ ta0e the for of treaties. But international agree ents e bod/ing adjustments of detail carr/ing out wellAestablished national policies and traditions and those involving arrange ents of a ore or less te porar/ nature usuall/ ta0e the for of e"ecutive agree ents. """ """ """ 9urther ore, the Fnited #tates #upre e Court has e"pressl/ recogni1ed the validit/ and constitutionalit/ of e"ecutive agree ents entered into without #enate approval. 42( Colu bia Baw Review, pp. &%2A&%)5 4#ee, also, F.#. vs. CurtisAGright E"port Corporation, $(( F.#. 2;), :' B. ed. $%%? F.#. vs. Bel ont, 2;' F.#. 2$), :' B. ed. ''2)? F.#. vs. Pin0, 2'% F.#. $;2, :3 B. ed. &(3? <1anic vs. F.#., ':: 9. $d. $::? Hale Baw *ournal, Eol. '%, pp. '(;%A'(;3? California Baw Review, Eol. $%, pp. 3&;A3&%? +/de on -nternational Baw CRevised EditionD, Eol. $, pp. ');%, ')'3A')':? Gilloughb/ on the F.#. Constitutional Baw, Eol. - C$d ed.D, pp. %2&A%);? Moore, -nternational Baw =igest, Eol. E, pp. $';A$':? +ac0worth, -nternational Baw =igest, Eol. E, pp. 2(;A);&5. 4E phasis supplied.5 -n this connection, 9rancis B. #a/re, for er F.#. +igh Co issioner to the Philippines, said in his wor0 on @!he Constitutionalit/ of !rade Agree ent Acts@> Agree ents concluded b/ the President which fall short of treaties are co onl/ referred to as e"ecutive agree ents and are no less co on in our sche e of govern ent than are the ore for al instru ents 7 treaties and conventions. !he/ so eti es ta0e the for of e"changes of notes and at other ti es that of ore for al docu ents deno inated @agree ents@ ti e or @protocols@. !he point where ordinar/ correspondence between this and other govern ents

ends and agree ents 7 whether deno inated e"ecutive agree ents or e"changes of notes or otherwise 7 begin, a/ so eti es be difficult of read/ ascertain ent. -t would be useless to underta0e to discuss here the large variet/ of e"ecutive agree ents as such, concluded fro ti e to ti e. +undreds of e"ecutive agree ents, other than those entered into under the tradeA agree ents act, have been negotiated with foreign govern ents. . . . -t would see to be sufficient, in order to show that the trade agree ents under the act of '(2) are not ano alous in character, that the/ are not treaties, and that the/ have abundant precedent in our histor/, to refer to certain classes of agree ents heretofore entered into b/ the E"ecutive without the approval of the #enate. !he/ cover such subjects as the inspection of vessels, navigation dues, inco e ta" on shipping profits, the ad ission of civil aircraft, custo s atters, and co ercial relations generall/, international clai s, postal atters, the registration of trade ar0s and cop/rights, etcetera. #o e of the were concluded not b/ specific congressional authori1ation but in confor it/ with policies declared in acts of Congress with respect to the general subject atter, such as tariff acts? while still others, particularl/ those with respect of the settle ent of clai s against foreign govern ents, were concluded independentl/ of an/ legislation.@ 42( Colu bia Baw Review, pp. 3%', &%%.5 !he validit/ of the e"ecutive agree ent in .uestion is thus patent. -n fact, the soAcalled Parit/ Rights provided for in the <rdinance Appended to our Constitution were, prior thereto, the subject of an e"ecutive agree ent, ade without the concurrence of twoAthirds 4$I25 of the #enate of the Fnited #tates. Bastl/, the lower court held that it would be unreasonable to re.uire fro respondentAappellee an i port license when the - port Control Co ission was no longer in e"istence and, hence, there was, said court believed, no agenc/ authori1ed to issue the afore entioned license. !his conclusion is untenable, for the authorit/ to issue the afore entioned licenses was not vested e"clusivel/ upon the - port Control Co ission or Ad inistration. E"ecutive <rder No. 2$: provided for e"port or i port licenses @fro the entral !an" of the #hilippines or the - port Control Ad inistration@ or Co ission. -ndeed, the latter was created onl/ to perfor the tas0 of i ple enting certain objectives of the Monetar/ Board and the Central Ban0, which otherwise had to be underta"en by these two $%& agencies . Fpon the abolition of said Co ission, the dut/ to provide eans and wa/s for the acco plish ent of said objectives had erel/ to be discharged directl/ b/ the Monetar/ Board and the Central Ban0, even if the afore entioned E"ecutive <rder had been silent thereon. G+ERE9<RE, the decision appealed fro is hereb/ reversed and another one shall be entered affir ing that of the Co issioner of Custo s, with

cost against respondents defendantAappellee, Eastern #ea !rading. -t is so ordered. !engzon' .(.' #adilla' !autista )ngelo' *abrador' +eyes' (.!.*.' #aredes' ,izon and ,e *eon' ((.' concur. !arrera' (.' too0 no part. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. &96'1 No(e)ber 1*, 19&9 %$TU IR%$USI I.+. $,,$S, %$TU ,LO UMP$R $%IONG, %$TU M$C$LIMPO-$C %EL$NG$LEN, CELSO P$LM$, $LI MONT$N$ ,$,$O, .ULMUNIR .$NN$R$L, R$SHI% S$,ER, !"# %$TU .$M$L $SHLE+ $,,$S, re/re0e"t1"2 t3e ot3er t!4/!5er0 o6 M1"#!"!o, petitioners, vs. COMMISSION ON ELECTIONS, !"# HONOR$,LE GUILLERMO C. C$R$GUE, %EP$RTMENT SECRET$R+ O ,U%GET $N% M$N$GEMENT, respondents. G.R. No. &996' No(e)ber 1*, 19&9 $TT+. $,%ULL$H %. M$M$-O, petitioner, vs. HON. GUILLERMO C$R$GUE, 1" 310 c!/!c1t5 !0 t3e Secret!r5 o6 t3e ,7#2et, !"# t3e COMMISSION ON ELECTIONS, respondents. )bbas' )bbas' )mora' )lejandro-)bbas . )ssociates for petitioners in G.+. /os. 01234 and 01123. )bdullah ,. 5ama-o for and in his own behalf in 01123. CORTES, J.: !he present controvers/ relates to the plebiscite in thirteen 4'25 provinces and nine 4(5 cities in Mindanao and Palawan, 1 scheduled for Nove ber '(, '(:(, in i ple entation of Republic Act No. 3&2), entitled @An Act Providing for an <rganic Act for the Autono ous Region in Musli Mindanao.@ !hese consolidated petitions pra/ that the Court> 4'5 enjoin the Co ission on Elections 4C<MEBEC5 fro conducting the plebiscite and the #ecretar/ of Budget and Manage ent fro releasing funds to the C<MEBEC for that purpose? and 4$5 declare R.A. No. 3&2), or parts thereof, unconstitutional . After a consolidated co ent was filed b/ #olicitor 6eneral for the respondents, which the Court considered as the answer, the case was dee ed sub itted for decision, the issues having been joined. #ubse.uentl/, petitioner Ma aAo filed a @Manifestation with Motion for Beave to 9ile Repl/ on RespondentsJ Co ent and to <pen <ral Argu ents,@ which the Court noted.

!he argu ents against R.A. 3&2) raised b/ petitioners a/ generall/ be categori1ed into either of the following> 4a5 that R.A. 3&2), or parts thereof, violates the Constitution, and 4b5 that certain provisions of R.A. No. 3&2) conflict with the !ripoli Agree ent. !he !ripoli Agree ent, ore specificall/, the Agree ent Between the govern ent of the Republic of the Philippines of the Philippines and Moro National Biberation 9ront with the Participation of the Kuadripartie Ministerial Co ission Me bers of the -sla ic Conference and the #ecretar/ 6eneral of the <rgani1ation of -sla ic Conference@ too0 effect on =ece ber $2, '(&3. -t provided for @CtDhe establish ent of Autono / in the southern Philippines within the real of the sovereignt/ and territorial integrit/ of the Republic of the Philippines@ and enu erated the thirteen 4'25 provinces co prising the @areas of autono /.@ 2 -n '(:&, a new Constitution was ratified, which the for the first ti e provided for regional autono /, Article L, section '% of the charter provides that @CtDhere shall be created autono ous regions in Musli Mindanao and in the Cordilleras consisting of provinces, cities, unicipalities, and geographical areas sharing co on and distinctive historical and cultural heritage, econo ic and social structures, and other relevant characteristics within the fra ewor0 of this Constitution and the national sovereignt/ as well as territorial integrit/ of the Republic of the Philippines.@ !o effectuate this andate, the Constitution further provides> #ec. '3. !he President shall e"ercise general supervision over autono ous regions to ensure that the laws are faithfull/ e"ecuted. #ec. '&. All powers, functions, and responsibilities not granted b/ this Constitution or b/ law to the autono ous regions shall be vested in the National 6overn ent. #ec. ':. !he Congress shall enact an organic act for each autono ous region with the assistance and participation of the regional consultative co ission co posed of representatives appointed b/ the President fro a list of no inees fro ultisectoral bodies. !he organic act shall define the basic structure of govern ent for the region consisting of the e"ecutive and representative of the constituent political units. !he organic acts shall li0ewise provide for special courts with personal, fa il/, and propert/ law jurisdiction consistent with the provisions of this Constitution and national laws. !he creation of the autono ous region shall be effective when approved b/ ajorit/ of the votes cast b/ the constituent units in a plebiscite called for the purpose, provided that onl/ the provinces, cities, and geographic areas voting favorabl/ in such plebiscite shall be included in the autono ous region. #ec. '( !he first Congress elected under this Constitution shall, within eighteen onths fro the ti e of organi1ation of both +ouses, pass the

organic acts for the autono ous regions in Musli Mindanao and the Cordilleras. #ec. $;. Githin its territorial jurisdiction and subject to the provisions of this Constitution and national laws, the organic act of autono ous regions shall provide for legislative powers over> 4'5 Ad inistrative organi1ation? 4$5 Creation of sources of revenues? 425 Ancestral do ain and natural resources? 4)5 Personal, fa il/, and propert/ relations? 4%5 Regional urban and rural planning develop ent? 435 Econo ic, social and touris develop ent? 4&5 Educational policies? 4:5 Preservation and develop ent of the cultural heritage? and 4(5 #uch other atters as a/ be authori1ed b/ law for the pro otion of the general welfare of the people of the region. #ec. $'. !he preservation of peace and order within the regions shall be the responsibilit/ of the local police agencies which shall be organi1ed, aintained, supervised, and utili1ed in accordance with applicable laws. !he defense and securit/ of the region shall be the responsibilit/ of the National 6overn ent. Pursuant to the constitutional andate, R.A. No. 3&2) was enacted and signed into law on August ', '(:(. '. !he Court shall dispose first of the second categor/ of argu ents raised b/ petitioners, i.e. that certain provisions of R.A. No. 3&2) conflict with the provisions of the !ripoli Agree ent. Petitioners pre ise their argu ents on the assu ption that the !ripoli Agree ent is part of the law of the land, being a binding international agree ent . !he #olicitor 6eneral asserts that the !ripoli Agree ent is neither a binding treat/, not having been entered into b/ the Republic of the Philippines with a sovereign state and ratified according to the provisions of the '(&2 or '(:& Constitutions, nor a binding international agree ent. Ge find it neither necessar/ nor deter inative of the case to rule on the nature of the !ripoli Agree ent and its binding effect on the Philippine 6overn ent whether under public international or internal Philippine law. -n the first place, it is now the Constitution itself that provides for the creation of an autono ous region in Musli Mindanao. !he standard for an/ in.uir/ into the validit/ of R.A. No. 3&2) would therefore be what is so provided in the Constitution. !hus, an/ conflict between the provisions of R.A. No. 3&2) and the provisions of the !ripoli Agree ent will not have the effect of enjoining the i ple entation of the <rganic Act. Assu ing for the sa0e of argu ent that the !ripoli Agree ent is a binding treat/ or international agree ent, it would then constitute part of the law of the land. But as internal law it would not be superior to R.A. No. 3&2), an enact ent of the Congress of the Philippines, rather it would be in the sa e class as the latter C#AB<N6A, PFBB-C -N!ERNA!-<NAB BAG 2$; 4)th ed., '(&)5, citing +ead Mone/

Cases, ''$ F.#. %:; 4'::)5 and 9oster v. Nelson, $ Pet. $%2 4':$(5D. !hus, if at all, R.A. No. 3&2) would be a endator/ of the !ripoli Agree ent, being a subse.uent law. <nl/ a deter ination b/ this Court that R.A. No. 3&2) contravened the Constitution would result in the granting of the reliefs sought. 3 $. !he Court shall therefore onl/ pass upon the constitutional .uestions which have been raised b/ petitioners. Petitioner Abbas argues that R.A. No. 3&2) unconditionall/ creates an autono ous region in Mindanao, contrar/ to the afore.uoted provisions of the Constitution on the autono ous region which a0e the creation of such region dependent upon the outco e of the plebiscite. -n support of his argu ent, petitioner cites Article --, section '4'5 of R.A. No. 3&2) which declares that @CtDhere is hereb/ created the Autono ous Region in Musli Mindanao, to be co posed of provinces and cities voting favorabl/ in the plebiscite called for the purpose, in accordance with #ection ':, Article L of the Constitution.@ Petitioner contends that the tenor of the above provision a0es the creation of an autono ous region absolute, such that even if onl/ two provinces vote in favor of autono /, an autono ous region would still be created co posed of the two provinces where the favorable votes were obtained. !he atter of the creation of the autono ous region and its co position needs to be clarified. 9irs, the .uestioned provision itself in R.A. No. 3&2) refers to #ection ':, Article L of the Constitution which sets forth the conditions necessar/ for the creation of the autono ous region. !he reference to the constitutional provision cannot be glossed over for it clearl/ indicates that the creation of the autono ous region shall ta0e place onl/ in accord with the constitutional re.uire ents. #econd, there is a specific provision in the !ransitor/ Provisions 4Article L-L5 of the <rganic Act, which incorporates substantiall/ the sa e re.uire ents e bodied in the Constitution and fills in the details, thus> #EC. '2. !he creation of the Autono ous Region in Musli Mindanao shall ta0e effect when approved b/ a ajorit/ of the votes cast b/ the constituent units provided in paragraph 4$5 of #ec. ' of Article -- of this Act in a plebiscite which shall be held not earlier than ninet/ 4(;5 da/s or later than one hundred twent/ 4'$;5 da/s after the approval of this Act> #rovided' !hat onl/ the provinces and cities voting favorabl/ in such plebiscite shall be included in the Autono ous Region in Musli Mindanao. !he provinces and cities which in the plebiscite do not vote for inclusion in the Autono ous Region shall re ain the e"isting ad inistrative deter ination, erge the e"isting regions. !hus, under the Constitution and R.A. No 3&2), the creation of the autono ous region shall ta0e effect onl/ when approved b/ a ajorit/ of the votes cast b/ the constituent units in a plebiscite, and onl/ those provinces and cities where a ajorit/ vote in favor of the <rganic Act shall be included in the autono ous region. !he provinces and cities wherein such a ajorit/

is not attained shall not be included in the autono ous region. -t a/ be that even if an autono ous region is created, not all of the thirteen 4'25 provinces and nine 4(5 cities entioned in Article --, section ' 4$5 of R.A. No. 3&2) shall be included therein. !he single plebiscite conte plated b/ the Constitution and R.A. No. 3&2) will therefore be deter inative of 4'5 whether there shall be an autono ous region in Musli Mindanao and 4$5 which provinces and cities, a ong those enu erated in R.A. No. 3&2), shall co pro ise it. C#ee --- REC<R= <9 !+E C<N#!-!F!-<NAB C<MM-##-<N ):$A)($ 4'(:35D. As provided in the Constitution, the creation of the Autono ous region in Musli Mindanao is ade effective upon the approval @b/ ajorit/ of the votes cast b/ the constituent units in a plebiscite called for the purpose@ CArt. L, sec. ':D. !he .uestion has been raised as to what this ajorit/ eans. =oes it refer to a ajorit/ of the total votes cast in the plebiscite in all the constituent units, or a ajorit/ in each of the constituent units, or bothM Ge need not go be/ond the Constitution to resolve this .uestion. -f the fra ers of the Constitution intended to re.uire approval b/ a ajorit/ of all the votes cast in the plebiscite the/ would have so indicated. !hus, in Article LE---, section $&, it is provided that @CtDhis Constitution shall ta0e effect i ediatel/ upon its ratification b/ a ajorit/ of the votes cast in a plebiscite held for the purpose ... Co paring this with the provision on the creation of the autono ous region, which reads> !he creation of the autono ous region shall be effective when approved b/ ajorit/ of the votes cast b/ the constituent units in a plebiscite called for the purpose, provided that onl/ provinces, cities and geographic areas voting favorabl/ in such plebiscite shall be included in the autono ous region. CArt. L, sec, ':, para, $D. it will readil/ be seen that the creation of the autono ous region is ade to depend, not on the total ajorit/ vote in the plebiscite, but on the will of the ajorit/ in each of the constituent units and the proviso underscores this. for if the intention of the fra ers of the Constitution was to get the ajorit/ of the totalit/ of the votes cast, the/ could have si pl/ adopted the sa e phraseolog/ as that used for the ratification of the Constitution, i.e. @the creation of the autono ous region shall be effective when approved b/ a ajorit/ of the votes cast in a plebiscite called for the purpose.@ -t is thus clear that what is re.uired b/ the Constitution is a si ple ajorit/ of votes approving the organic Act in individual constituent units and not a double ajorit/ of the votes in all constituent units put together, as well as in the individual constituent units. More i portantl/, because of its categorical language, this is also the sense in which the vote re.uire ent in the plebiscite provided under Article L, section ': ust have been understood b/ the people when the/ ratified the Constitution. -nvo0ing the earlier cited constitutional provisions, petitioner Ma aAo, on the other hand, aintains that onl/ those areas which, to his view, share co on and distinctive historical and cultural heritage, econo ic and social

structures, and other relevant characteristics should be properl/ included within the coverage of the autono ous region. +e insists that R.A. No. 3&2) is unconstitutional because onl/ the provinces of Basilan, #ulu, !awiA!awi, Banao del #ur, Banao del Norte and Maguindanao and the cities of Marawi and Cotabato, and not all of the thirteen 4'25 provinces and nine 4(5 cities included in the <rganic Act, possess such concurrence in historical and cultural heritage and other relevant characteristics. B/ including areas which do not strictl/ share the sa e characteristics. B/ including areas which do not strictl/ share the sa e characteristic as the others, petitioner clai s that Congress has e"panded the scope of the autono ous region which the constitution itself has prescribed to be li ited. PetitionerJs argu ent is not tenable. !he Constitution la/s down the standards b/ which Congress shall deter ine which areas should constitute the autono ous region. 6uided b/ these constitutional criteria, the ascertain ent b/ Congress of the areas that share co on attributes is within the e"clusive real of the legislatureJs discretion. An/ review of this ascertain ent would have to go into the wisdo of the law. !his the Court cannot do without doing violence to the separation of govern ental powers. CAngara v. Electoral Co ission, 32 Phil '2( 4'(235? Morfe v. Mutuc, 6.R. No. BA$;2:&, *anuar/ 2', '(3:, $$ #CRA )$)D. After assailing the inclusion of nonAMusli areas in the <rganic Act for lac0 of basis, petitioner Ma aAo would then adopt the e"tre e view that other nonAMusli areas in Mindanao should li0ewise be covered. +e argues that since the <rganic Act covers several nonAMusli areas, its scope should be further broadened to include the rest of the nonAMusli areas in Mindanao in order for the other nonAMusli areas denies said areas e.ual protection of the law, and therefore is violative of the Constitution. PetitionerJs contention runs counter to the ver/ sa e constitutional provision he had earlier invo0ed. An/ deter ination b/ Congress of what areas in Mindanao should co pro ise the autono ous region, ta0ing into account shared historical and cultural heritage, econo ic and social structures, and other relevant characteristics, would necessaril/ carr/ with it the e"clusion of other areas. As earlier stated, such deter ination b/ Congress of which areas should be covered b/ the organic act for the autono ous region constitutes a recogni1ed legislative prerogative, whose wisdo a/ not be in.uired into b/ this Court. Moreover, e.ual protection per its of reasonable classification CPeople v. Eera, 3% Phil. %3 4'(325? Baurel v. Misa, &3 Phil. 2&$ 4'()35? *.M. !uason and Co. v. Band tenure Ad inistration, 6.R. No. BA$';3), 9ebruar/ ':, '(&;, 2' #CRA )'2D. -n ,umlao v. ommission on 6lections 6.R. No. %$$)%, *anuar/ $$, '(:;, (% #CRA 2($D, the Court ruled that once class a/ be treated differentl/ fro another where the groupings are based on reasonable and real distinctions. !he guarantee of e.ual protection is thus not infringed in this case, the classification having been ade b/ Congress on the basis of substantial distinctions as set forth b/ the Constitution itself.

Both petitions also .uestion the validit/ of R.A. No. 3&2) on the ground that it violates the constitutional guarantee on free e"ercise of religion CArt. ---, sec. %D. !he objection centers on a provision in the <rganic Act which andates that should there be an/ conflict between the Musli Code CP.=. No. ';:2D and the !ribal Code 4still be enacted5 on the one had, and the national law on the other hand, the #hariJah courts created under the sa e Act should appl/ national law. Petitioners aintain that the isla ic law 4#hariJah5 is derived fro the ,oran, which a0es it part of divine law. !hus it a/ not be subjected to an/ @ anA ade@ national law. Petitioner Abbas supports this objection b/ enu erating possible instances of conflict between provisions of the Musli Code and national law, wherein an application of national law ight be offensive to a Musli Js religious convictions. As enshrined in the Constitution, judicial power includes the dut/ to settle actual controversies involving rights which are legall/ de andable and enforceable. CArt. E---, #ec. ''. As a condition precedent for the power to be e"ercised, an actual controvers/ between litigants ust first e"ist CAngara v. Electoral Co ission, supra7 !an v. Macapagal, 6.R. No. BA2)'3', 9ebruar/ $(, '(&$, )2 #CRA 3&&D. -n the present case, no actual controvers/ between real litigants e"ists. !here are no conflicting clai s involving the application of national law resulting in an alleged violation of religious freedo . !his being so, the Court in this case a/ not be called upon to resolve what is erel/ a perceived potential conflict between the provisions the Musli Code and national law. Petitioners also i pugn the constitutionalit/ of Article L-L, section '2 of R.A. No. 3&2) which, a ong others, states> . . . #rovided' !hat onl/ the provinces and cities voting favorabl/ in such plebiscite shall be included in the Autono ous Region in Musli Mindanao. !he provinces and cities which in the plebiscite do not vote for inclusion in the Autono ous Region shall re ain in the e"isting ad inistrative regions> #rovided' however' that the President a/, b/ ad inistrative deter ination, erge the e"isting regions. According to petitioners, said provision grants the President the power to erge regions, a power which is not conferred b/ the Constitution upon the President. !hat the President a/ choose to erge e"isting regions pursuant to the <rganic Act is challenged as being in conflict with Article L, #ection '; of the Constitution which provides> No province, cit/, unicipalit/, or baranga/ a/ be created, divided, erged, abolished, or its boundar/ substantiall/ altered, e"cept in accordance with the criteria established in the local govern ent code and subject to approval b/ a ajorit/ of the votes cast in a plebiscite in the political units directl/ affected. -t ust be pointed out that what is referred to in R.A. No. 3&2) is the erger of ad inistrative regions, i.e. Regions - to L-- and the National Capital Region, which are ere groupings of contiguous provinces for ad inistrative purposes C-ntegrated Reorgani1ation Plan 4'(&$5, which was ade as part of the law of the land b/ Pres. dec. No. ', Pres. =ec. No. &)$D. Ad inistrative

regions are not territorial and political subdivisions li0e provinces, cities, unicipalities and baranga/s Csee Art. L, sec. ' of the ConstitutionD. Ghile the power to erge ad inistrative regions is not e"pressl/ provided for in the Constitution, it is a power which has traditionall/ been lodged with the President to facilitate the e"ercise of the power of general supervision over local govern ents Csee Art. L, sec. ) of the ConstitutionD. !here is no conflict between the power of the President to erge ad inistrative regions with the constitutional provision re.uiring a plebiscite in the erger of local govern ent units because the re.uire ent of a plebiscite in a erger e"pressl/ applies onl/ to provinces, cities, unicipalities or baranga/s, not to ad inistrative regions. Petitioners li0ewise .uestion the validit/ of provisions in the <rganic Act which create an <versight Co ittee to supervise the transfer to the autono ous region of the powers, appropriations, and properties vested upon the regional govern ent b/ the organic Act CArt. L-L, #ecs. 2 and )D. #aid provisions andate that the transfer of certain national govern ent offices and their properties to the regional govern ent shall be ade pursuant to a schedule prescribed b/ the <versight Co ittee, and that such transfer should be acco plished within si" 435 /ears fro the organi1ation of the regional govern ent. -t is asserted b/ petitioners that such provisions are unconstitutional because while the Constitution states that the creation of the autono ous region shall ta0e effect upon approval in a plebiscite, the re.uire ent of organi1ing an <versight co ittee tas0ed with supervising the transfer of powers and properties to the regional govern ent would in effect dela/ the creation of the autono ous region. Fnder the Constitution, the creation of the autono ous region hinges onl/ on the result of the plebiscite. if the <rganic Act is approved b/ ajorit/ of the votes cast b/ constituent units in the scheduled plebiscite, the creation of the autono ous region i ediatel/ ta0es effect dela/ the creation of the autono ous region. Fnder the constitution, the creation of the autono ous region hinges onl/ on the result of the plebiscite. if the <rganic Act is approved b/ ajorit/ of the votes cast b/ constituent units in the scheduled plebiscite, the creation of the autono ous region i ediatel/ ta0es effect. !he .uestioned provisions in R.A. No. 3&2) re.uiring an oversight Co ittee to supervise the transfer do not provide for a different date of effectivit/. Much less would the organi1ation of the <versight Co ittee cause an i pedi ent to the operation of the <rganic Act, for such is evidentl/ ai ed at effecting a s ooth transition period for the regional govern ent. !he constitutional objection on this point thus cannot be sustained as there is no bases therefor. Ever/ law has in its favor the presu ption of constitutionalit/ CHu Cong Eng v. !rinidad, )& Phil. 2:& 4'($%5? #alas v. *arencio, 6.R. No. BA$(&::, August 2;, '(&(, )3 #CRA &2)? Morfe v. Mutuc, supra7 Peralta v. C<MEBEC, 6.R. No. BA)&&&', March '', '(&:, :$ #CRA 2;D. !hose who petition this Court to declare a law, or parts thereof, unconstitutional ust clearl/ establish the

basis for such a declaration. otherwise, their petition ust fail. Based on the grounds raised b/ petitioners to challenge the constitutionalit/ of R.A. No. 3&2), the Court finds that petitioners have failed to overco e the presu ption. !he dis issal of these two petitions is, therefore, inevitable. G+ERE9<RE, the petitions are =-#M-##E= for lac0 of erit. #< <R=ERE=. 8ernan' .(.' /arvasa' Gutierrez' (r.' ruz' #aras' 8eliciano' Gancayco' #adilla' !idin' Sarmiento' Gri9o-)quino' 5edialdea and +egalado' ((.' concur. 5elencio-:errera' (.' is on leave. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-49112 ebr7!r5 2, 1979 LEO8ILLO C. $GUSTIN, petitioner, vs. HON. ROMEO . E%U, 1" 310 c!/!c1t5 !0 L!"# Tr!"0/ort!t1o" Co))1001o"er9 HON. .U$N PONCE ENRILE, 1" 310 c!/!c1t5 !0 M1"10ter o6 N!t1o"!: %e6e"0e9 HON. $L RE%O L. .UINIO, 1" 310 c!/!c1t5 !0 M1"10ter O6 P7b:1c -or;0, Tr!"0/ort!t1o" !"# Co))7"1c!t1o"09 !"# HON< ,$LT$=$R $>UINO, 1" 310 c!/!c1t5 !0 M1"10ter o6 P7b:1c H123?!50, respondents. *eovillo . )gustin *aw Office for petitioner. Solicitor General 6stelito #. 5endoza' )ssistant Solicitor General +uben 6. )gpalo and Solicitor )mado ,. )quino for respondents. ERN$N%O, J.: !he validit/ of a letter of -nstruction 1 providing for an earl/ sea ing device for otor vehicles is assailed in this prohibition proceeding as being violative of the constitutional guarantee of due process and, insofar as the rules and regulations for its i ple entation are concerned, for transgressing the funda ental principle of nonA delegation of legislative power. !he Better of -nstruction is stig ati1ed b/ petitioner who is possessed of the re.uisite standing, as being arbitrar/ and oppressive. A te porar/ restraining order as issued and respondents Ro eo 9. Edu, Band !ransportation Co issioner *uan Ponce Enrile, Minister of National =efense? Alfredo B. *uinio, Minister of Public Gor0s, !ransportation and Co unications? and Balta1ar A.uino, Minister of Public +ighwa/s? were to answer. !hat the/ did in a pleading sub itted b/ #olicitor 6eneral Estelito P. Mendo1a. 2 - pressed with a highl/ persuasive .ualit/, it a0es devoid clear that the i putation of a constitutional infir it/ is devoid of justification !he Better of -nstruction on is a valid police power easure. Nor could the i ple enting rules and regulations issued b/ respondent Edu be considered as a ounting to an e"ercise of legislative power. Accordingl/, the petition ust be dis issed.

!he facts are undisputed. !he assailed Better of -nstruction No. $$( of President Marcos, issued on =ece ber $, '(&), reads in full> @CGhereasD, statistics show that one of the ajor causes of fatal or serious accidents in land transportation is the presence of disabled, stalled or par0ed otor vehicles along streets or highwa/s without an/ appropriate earl/ warning device to signal approaching otorists of their presence? CGhereasD, the ha1ards posed b/ such obstructions to traffic have been recogni1ed b/ international bodies concerned with traffic safet/, the '(3: Eienna Convention on Road #igns and #ignals and the Fnited Nations <rgani1ation 4F.N.5? CGhereasD, the said Eienna Convention which was ratified b/ the Philippine 6overn ent under P.=. No. $;&, reco ended the enact ent of local legislation for the installation of road safet/ signs and devices? CNow, therefore, -, 9erdinand E. MarcosD, President of the Philippines, in the interest of safet/ on all streets and highwa/s, including e"presswa/s or li ited access roads, do hereb/ direct> '. !hat all owners, users or drivers of otor vehicles shall have at all ti es in their otor vehicles at least one 4'5 pair of earl/ warning device consisting of triangular, collapsible reflectori1ed plates in red and /ellow colors at least '% c s. at the base and ); c s. at the sides. $. Ghenever an/ otor vehicle is stalled or disabled or is par0ed for thirt/ 42;5 inutes or ore on an/ street or highwa/, including e"presswa/s or li ited access roads, the owner, user or driver thereof shall cause the warning device entioned herein to be installed at least four eters awa/ to the front and rear of the otor vehicle staged, disabled or par0ed. 2. !he Band !ransportation Co issioner shall cause Reflectori1ed !riangular Earl/ Garning =evices, as herein described, to be prepared and issued to registered owners of otor vehicles, e"cept otorc/cles and trailers, charging for each piece not ore than '% N of the ac.uisition cost. +e shall also pro ulgate such rules and regulations as are appropriate to effectivel/ i ple ent this order. ). All hereb/ concerned shall closel/ coordinate and ta0e such easures as are necessar/ or appropriate to carr/ into effect then instruction. 3 !hereafter, on Nove ber '%, '(&3, it was a ended b/ Better of -nstruction No. )&( in this wise. @Paragraph 2 of Better of -nstruction No. $$( is hereb/ a ended to read as follows> 2. !he Band transportation Co issioner shall re.uire ever/ otor vehicle owner to procure fro an/ and present at the registration of his vehicle, one pair of a reflectori1ed earl/ warning device, as d bed of an/ brand or a0e chosen b/ id otor vehicle . !he Band !ransportation Co issioner shall also pro ulgate such rule and regulations as are appropriate to effectivel/ i ple ent this order.J@ 4 !here was issued accordingl/, b/ respondent Edu, the i ple enting rules and regulations on =ece ber ';, '(&3. ' !he/ were not enforced as President Marcos on *anuar/ $%, '(&&, ordered a si"A onth period of suspension insofar as the installation of earl/ warning device as a preA registration re.uire ent for otor vehicle was concerned. 6 !hen on *une 2;, '(&:, another Better of -nstruction 7 the lifting of such suspension and directed the i ediate i ple entation of Better of -nstruction No. $$( as a ended. & -t was not until August $(, '(&: that respondent Edu issued

Me orandu Circular No. 2$, worded thus> @-n pursuance of Better of -nstruction No. &'3, dated *une 2;, '(&:, the i ple entation of Better of -nstruction No. $$(, as a ended b/ Better of -nstructions No. )&(, re.uiring the use of Earl/ Garning =evices 4EG=5 on otor vehicle, the following rules and regulations are hereb/ issued> '. B!C Ad inistrative <rder No. ', dated =ece ber ';, '(&3? shall now be i ple ented provided that the device a/ co e fro whatever source and that it shall have substantiall/ co plied with the EG= specifications contained in #ection $ of said ad inistrative order? $. -n order to insure that ever/ otor vehicle , e"cept otorc/cles, is e.uipped with the device, a pair of seriall/ nu bered stic0ers, to be issued free of charge b/ this Co ission, shall be attached to each EG=. !he EG=. serial nu ber shall be indicated on the registration certificate and official receipt of pa/ ent of current registration fees of the otor vehicle concerned. All <rders, Circulars, and Me oranda in conflict herewith are hereb/ superseded, !his <rder shall ta0e effect i ediatel/. 9 -t was for i ediate i ple entation b/ respondent Alfredo B. *uinio, as Minister of Public Gor0s, transportation, and Co unications. 1* Petitioner, after setting forth that he @is the owner of a Eol0swagen Beetle Car, Model '2;2%, alread/ properl/ e.uipped when it ca e out fro the asse bl/ lines with blin0ing lights fore and aft, which could ver/ well serve as an earl/ warning device in case of the e ergencies entioned in Better of -nstructions No. $$(, as a ended, as well as the i ple enting rules and regulations in Ad inistrative <rder No. ' issued b/ the land transportation Co ission,@ 11 alleged that said Better of -nstruction No. $$(, as a ended, @clearl/ violates the provisions and delegation of police power, CsicD O O O> @ 9or hi the/ are @oppressive, unreasonable, arbitrar/, confiscator/, na/ unconstitutional and contrar/ to the precepts of our co passionate New #ociet/.@ 12 +e contended that the/ are @infected with arbitrariness because it is harsh, cruel and unconscionable to the otoring public?@ 13 are @oneAsided, onerous and patentl/ illegal and i oral because Cthe/D will a0e anufacturers and dealers instant illionaires at the e"pense of car owners who are co pelled to bu/ a set of the soAcalled earl/ warning device at the rate of P %3.;; to P&$.;; per set.@ 14 are unlawful and unconstitutional and contrar/ to the precepts of a co passionate New #ociet/ Cas beingD co pulsor/ and confiscator/ on the part of the otorists who could ver/ well provide a practical alternative road safet/ device, or a better substitute to the specified set of EG=Js.@ 1' +e therefore pra/ed for a judg ent both the assailed Betters of -nstructions and Me orandu Circular void and unconstitutional and for a restraining order in the eanwhile. A resolution to this effect was handed down b/ this Court on <ctober '(, '(&:> @BA)(''$ 4Beovillo C. Agustin v. +on. Ro eo 9. Edu, etc., et al.5 7 Considering the allegations contained, the issues raised and the argu ents adduced in the petition for prohibition with writ of p prohibitor/ andIor andator/ injunction, the Court Resolved to 4re.uire5 the respondents to file an answer thereto within ton 4';5 da/s fro notice and not to ove to dis iss the petition. !he Court further Resolved to CissueD a Cte porar/

restraining orderD effective as of this date and continuing until otherwise ordered b/ this Court. 16 !wo otions for e"tension were filed b/ the <ffice of the #olicitor 6eneral and granted. !hen on Nove ber '%, '(&:, he Answer for respondents was sub itted. After ad itting the factual allegations and stating that the/ lac0ed 0nowledge or infor ation sufficient to for a belief as to petitioner owning a Eol0swagen Beetle car,@ the/ @specificall/ den/ the allegations and stating the/ lac0ed 0nowledge or infor ation sufficient to for a belief as to petitioner owning a Eol0swagen Beetle Car, 17 the/ specificall/ den/ the allegations in paragraphs L and L- 4including its subparagraphs ', $, 2, )5 of Petition to the effect that Better of -nstruction No. $$( as a ended b/ Betters of -nstructions Nos. )&( and &'3 as well as Band transportation Co ission Ad inistrative <rder No. ' and its Me orandu Circular No. 2$ violates the constitutional provisions on due process of law, e.ual protection of law and undue delegation of police power, and that the sa e are li0ewise oppressive, arbitrar/, confiscator/, oneAsided, onerous, i oral unreasonable and illegal the truth being that said allegations are without legal and factual basis and for the reasons alleged in the #pecial and Affir ative =efenses of this Answer.@ 1& Fnli0e petitioner who contented hi self with a rhetorical recital of his litan/ of grievances and erel/ invo0ed the sacra ental phrases of constitutional litigation, the Answer, in de onstrating that the assailed Better of -nstruction was a valid e"ercise of the police power and i ple enting rules and regulations of respondent Edu not susceptible to the charge that there was unlawful delegation of legislative power, there was in the portion captioned #pecial and Affir ative =efenses, a citation of what respondents believed to be the authoritative decisions of this !ribunal calling for application. !he/ are alalang v. ;illiams, 19 5orfe v. 5utuc, 2* and 6du v. 6ricta. 21 Reference was li0ewise ade to the '(3: Eienna Conventions of the Fnited Nations on road traffic, road signs, and signals, of which the Philippines was a signator/ and which was dul/ ratified. 22 #olicitor 6eneral Mendo1a too0 pains to refute in detail, in language cal and dispassionate, the vigorous, at ti es inte perate, accusation of petitioner that the assailed Better of -nstruction and the i ple enting rules and regulations cannot survive the test of rigorous scrutin/. !o repeat, its highl/Apersuasive .ualit/ cannot be denied. !his Court thus considered the petition sub itted for decision, the issues being clearl/ joined. As noted at the outset, it is far fro eritorious and ust be dis issed. '. !he Better of -nstruction in .uestion was issued in the e"ercise of the police power. !hat is conceded b/ petitioner and is the ain reliance of respondents. -t is the sub ission of the for er, however, that while e braced in such a categor/, it has offended against the due process and e.ual protection safeguards of the Constitution, although the latter point was entioned onl/ in passing. !he broad and e"pansive scope of the police power which was originall/ -dentified b/ Chief *ustice !ane/ of the A erican #upre e Court in an ':)& decision as @nothing ore or less than the powers

of govern ent inherent in ever/ sovereignt/@ 23 was stressed in the afore entioned case of 6du v. 6ricta thus> @*ustice Baurel, in the first leading decision after the Constitution ca e into force, alalang v. ;illiams, -dentified police power with state authorit/ to enact legislation that a/ interfere with personal libert/ or propert/ in order to pro ote the general welfare. Persons and propert/ could thus Jbe subjected to all 0inds of restraints and burdens in order to we the general co fort, health and prosperit/ of the state.J #hortl/ after independence in '():, #rimicias v. 8ugoso reiterated the doctrine, such a co petence being referred to as Jthe power to prescribe regulations to pro ote the health, orals, peace, education, good order or safet/, and general welfare of the people. !he concept was set forth in negative ter s b/ *ustice Malcol in a preA Co onwealth decision as Jthat inherent and plenar/ power in the #tate which enables it to prohibit all things hurtful to the co fort, safet/ and welfare of societ/. -n that sense it could be hardl/ distinguishable as noted b/ this Court in Morfe v. Mutuc with the totalit/ of legislative power. -t is in the above sense the greatest and ost powerful at. tribute of govern ent. -t is, to .uote *ustice Malcol anew, Jthe ost essential, insistent, and at least table powers, - e"tending as *ustice +ol es aptl/ pointed out Jto all the great public needs.J -ts scope, everAe"panding to eet the e"igencies of the ti es, even to anticipate the future where it could be done, provides enough roo for an efficient and fle"ible response to conditions and circu stances thus assuring the greatest benefits. -n the language of *ustice Cardo1o> JNeeds that were narrow or parochial in the past a/ be interwoven in the present with the wellAbeing of the nation. Ghat is critical or urgent changes with the ti e.J !he police power is thus a d/na ic agenc/, suitabl/ vague and far fro precisel/ defined, rooted in the conception that en in organi1ing the state and i posing upon its govern ent li itations to safeguard constitutional rights did not intend thereb/ to enable an individual citi1en or a group of citi1ens to obstruct unreasonabl/ the enact ent of such salutar/ easures calculated to co unal peace, safet/, good order, and welfare.@ 24 $. -t was thus a heav/ burden to be shouldered b/ petitioner, co pounded b/ the fact that the particular police power easure challenged was clearl/ intended to pro ote public safet/. -t would be a rare occurrence indeed for this Court to invalidate a legislative or e"ecutive act of that character. None has been called to our attention, an indication of its being nonAe"istent. !he latest decision in point, Edu v. Ericta, sustained the validit/ of the Reflector Baw, 2' an enact ent conceived with the sa e end in view. alalang v. ;illiams found nothing objectionable in a statute, the purpose of which was> @!o pro ote safe transit upon, and. avoid obstruction on roads and streets designated as national roads O O O. 26 As a atter of fact, the first law sought to be nullified after the effectivit/ of the '(2% Constitution, the National =efense Act, 27 with petitioner failing in his .uest, was li0ewise pro pted b/ the i perative de ands of public safet/. 2. !he futilit/ of petitionerJs effort to nullif/ both the Better of -nstruction and the i ple enting rules and regulations beco es even ore apparent

considering his failure to la/ the necessar/ factual foundation to rebut the presu ption of validit/. #o it was held in 6rmita-5alate :otel and 5otel Operators )ssociation' <nc. v. ity 5ayor of 5anila . 2& !he rationale was clearl/ set forth in an e"cerpt fro a decision of *ustice Branders of the A erican #upre e Court, .uoted in the opinion> @!he statute here .uestioned deals with a subject clearl/ within the scope of the police power. Ge are as0ed to declare it void on the ground that the specific ethod of regulation prescribed is unreasonable and hence deprives the plaintiff of due process of law. As underl/ing .uestions of fact a/ condition the constitutionalit/ of legislation of this character, the presu ption of constitutionalit/ ust prevail in the absence of so e factual foundation of record in overthrowing the statute. 29 ). Nor did the #olicitor 6eneral as he ver/ well could, rel/ solel/ on such rebutted presu ption of validit/. As was pointed out in his Answer @!he President certainl/ had in his possession the necessar/ statistical infor ation and data at the ti e he issued said letter of instructions, and such factual foundation cannot be defeated b/ petitionerJs na0ed assertion that earl/ warning devices Jare not too vital to the prevention of nightti e vehicular accidentsJ because allegedl/ onl/ 2(; or '.% per cent of the supposed $3,;;; otor vehicle accidents that in '(&3 involved rearAend collisions 4p. '$ of petition5. PetitionerJs statistics is not bac0ed up b/ de onstrable data on record. As aptl/ stated b/ this +onorable Court> 9urther> @-t ad its of no doubt therefore that there being a presu ption of validit/, the necessit/ for evidence to rebut it is unavoidable, unless the statute or ordinance is void on its face, which is not the case here@J O O O. But even as g the verit/ of petitionerJs statistics, is that not reason enough to re.uire the installation of earl/ warning devices to prevent another 2(; rearAend collisions that could ean the death of 2(; or ore 9ilipinos and the deaths that could li0ewise result fro headAon or frontal collisions with stalled vehiclesM@ 3* -t is .uite anifest then that the issuance of such Better of -nstruction is encased in the ar or of prior, careful stud/ b/ the E"ecutive =epart ent. !o set it aside for alleged repugnanc/ to the due process clause is to give sanction to conjectural clai s that e"ceeded even the broadest per issible li its of a pleaderJs well 0nown penchant for e"aggeration. %. !he rather wild and fantastic nature of the charge of oppressiveness of this Better of -nstruction was e"posed in the Answer of the #olicitor 6eneral thus> @#uch earl/ warning device re.uire ent is not an e=pensive redundancy, nor oppressive, for car owners whose cars are alread/ e.uipped with '5 blin0ing lights in the fore and aft of said otor vehicles,J $5 @batter/Apowered blin0ing lights inside otor vehicles,@ 25 @builtAin reflectori1ed tapes on front and rear bu pers of otor vehicles,@ or )5 @wellAlighted two 4$5 petroleu la ps 4the >in"e5 O O O because> Being universal a ong the signator/ countries to the said '(3: Eienna Conventions, and visible even under adverse conditions at a distance of at least );; eters, an/ otorist fro this countr/ or fro an/ part of the world, who sees a reflectori1ed rectangular earl/ sea ing device installed on the roads, highwa/s or e"presswa/s, will conclude, without

thin0ing, that so ewhere along the travelled portion of that road, highwa/, or e"presswa/, there is a otor vehicle which is stationar/, stalled or disabled which obstructs or endangers passing traffic. <n the other hand, a otorist who sees an/ of the afore entioned other built in warning devices or the petroleu la ps will not i ediatel/ get ade.uate advance warning because he will still thin0 what that blin0ing light is all about. -s it an e ergenc/ vehicleM -s it a law enforce ent carM -s it an a bulanceM #uch confusion or uncertaint/ in the ind of the otorist will thus increase, rather than decrease, the danger of collision. 31 3. Nor did the other e"travagant assertions of constitutional deficienc/ go unrefuted in the Answer of the #olicitor 6eneral @!here is nothing in the .uestioned Better of -nstruction No. $$(, as a ended, or in Ad inistrative <rder No. ', which re.uires or co pels otor vehicle owners to purchase the earl/ warning device prescribed thereb/. All that is re.uired is for otor vehicle owners concerned li0e petitioner, to e.uip their otor vehicles with a pair of this earl/ warning device in .uestion, procuring or obtaining the sa e fro whatever source. -n fact, with a little of industr/ and practical ingenuit/, otor vehicle owners can even personall/ a0e or produce this earl/ warning device so long as the sa e substantiall/ confor s with the specifications laid down in said letter of instruction and ad inistrative order. Accordingl/ the earl/ warning device re.uire ent can neither be oppressive, onerous, i oral, nor confiscator/, uch less does it a0e anufacturers and dealers of said devices Jinstant illionaires at the e"pense of car ownersJ as petitioner so sweepingl/ concludes O O O. PetitionerJs fear that with the earl/ warning device re.uire ent Ja ore subtle rac0et a/ be co itted b/ those called upon to enforce it O O O is an unfounded speculation. Besides, that unscrupulous officials a/ tr/ to enforce said re.uire ent in an unreasonable anner or to an unreasonable degree, does not render the sa e illegal or i oral where, as in the instant case, the challenged Better of -nstruction No. $$( and i ple enting order disclose none of the constitutional defects alleged against it. 32 & -t does appear clearl/ that petitionerJs objection to this Better of -nstruction is not pre ised on lac0 of power, the justification for a finding of unconstitutionalit/, but on the pessi istic, not to sa/ negative, view he entertains as to its wisdo . !hat approach, it put it at its ildest, is distinguished, if that is the appropriate word, b/ its unorthodo"/. -t bears repeating @that this Court, in the language of *ustice Baurel, Jdoes not pass upon .uestions of wisdo justice or e"pedienc/ of legislation.J As e"pressed b/ *ustice !uason> J-t is not the province of the courts to supervise legislation and 0eep it within the bounds of propriet/ and co on sense. !hat is pri aril/ and e"clusivel/ a legislative concern.J !here can be no possible objection then to the observation of *ustice Monte a/or. JAs long as laws do not violate an/ Constitutional provision, the Courts erel/ interpret and appl/ the regardless of whether or not the/ are wise or salutar/. 9or the/, according to *ustice Babrador, Jare not supposed to override legiti ate polic/ and O O O never in.uire into the wisdo of the law.J -t is thus settled, to

paraphrase Chief *ustice Concepcion in 6on1ales v. Co ission on Elections, that onl/ congressional power or co petence, not the wisdo of the action ta0en, a/ be the basis for declaring a statute invalid. !his is as it ought to be. !he principle of separation of powers has in the ain wisel/ allocated the respective authorit/ of each depart ent and confined its jurisdiction to such a sphere. !here would then be intrusion not allowable under the Constitution if on a atter left to the discretion of a coordinate branch, the judiciar/ would substitute its own. -f there be adherence to the rule of law, as there ought to be, the last offender should be courts of justice, to which rightl/ litigants sub it their controvers/ precisel/ to aintain uni paired the supre ac/ of legal nor s and prescriptions. !he attac0 on the validit/ of the challenged provision li0ewise insofar as there a/ be objections, even if valid and cogent on is wisdo cannot be sustained. 33 :. !he alleged infringe ent of the funda ental principle of nonAdelegation of legislative power is e.uall/ without an/ support wellAsettled legal doctrines. +ad petitioner ta0en the trouble to ac.uaint hi self with authoritative pronounce ents fro this !ribunal, he would not have the te erit/ to a0e such an assertion. An e"e pt fro the aforecited decision of 6du v. 6ricta sheds light on the atter> @!o avoid the taint of unlawful delegation, there ust be a standard, which i plies at the ver/ least that the legislature itself deter ines atters of principle and la/s down funda ental polic/. <therwise, the charge of co plete abdication a/ be hard to repel A standard thus defines legislative polic/, ar0s its aps out its boundaries and specifies the public agenc/ to appl/ it. -t indicates the circu stances under which the legislative co and is to be effected. -t is the criterion b/ which legislative purpose a/ be carried out. !hereafter, the e"ecutive or ad inistrative office designated a/ in pursuance of the above guidelines pro ulgate supple ental rules and regulations. !he standard a/ be either e"press or i plied. -f the for er, the nonAdelegation objection is easil/ et. !he standard though does not have to be spelled out specificall/. -t could be i plied fro the polic/ and purpose of the act considered as a whole. -n the Reflector Baw clearl/, the legislative objective is public safet/. Ghat is sought to be attained as in alalang v. ;illiams is @safe transit upon the roads.J !his is to adhere to the recognition given e"pression b/ *ustice Baurel in a decision announced not too long after the Constitution ca e into force and effect that the principle of nonAdelegation @has been ade to adapt itself to the co ple"ities of odern govern ents, giving rise to the adoption, within certain li its, of the principle of @subordinate legislation@ not onl/ in the Fnited #tates and England but in practicall/ all odern govern ents.J +e continued> JAccordingl/, with the growing co ple"it/ of odern life, the ultiplication of the subjects of govern ental regulation, and the increased difficult/ of ad inistering the laws, there is a constantl/ growing tendenc/ toward the delegation of greater powers b/ the legislature and toward the approval of the practice b/ the courts.J Consistenc/ with the conceptual approach re.uires the re inder that what is delegated is authorit/ nonA

legislative in character, the co pleteness of the statute when it leaves the hands of Congress being assu ed.@ 34 (. !he conclusion reached b/ this Court that this petition ust be dis issed is reinforced b/ this consideration. !he petition itself .uoted these two whereas clauses of the assailed Better of -nstruction> @CGhereasD, the ha1ards posed b/ such obstructions to traffic have been recogni1ed b/ international bodies concerned with traffic safet/, the '(3: Eienna Convention on Road #igns and #ignals and the Fnited Nations <rgani1ation 4F.N.5? CGhereasD, the said Eionna Convention, which was ratified b/ the Philippine 6overn ent under P.=. No. $;&, reco ended the enact ent of local legislation for the installation of road safet/ signs and devices? O O O @ 3' -t cannot be disputed then that this =eclaration of Principle found in the Constitution possesses relevance> @!he Philippines O O O adopts the generall/ accepted principles of international law as part of the law of the land O O O.@ 36 !he '(3: Eienna Convention on Road #igns and #ignals is i pressed with such a character. -t is not for this countr/ to repudiate a co it ent to which it had pledged its word. !he concept of #acta sunt servanda stands in the wa/ of such an attitude, which is, oreover, at war with the principle of international oralit/. ';. !hat is about all that needs be said. !he rather court reference to e.ual protection did not even elicit an/ atte pt on the Part of Petitioner to substantiate in a anner clear, positive, and categorical wh/ such a casual observation should be ta0en seriousl/. -n no case is there a ore appropriate occasion for insistence on what was referred to as @the general rule@ in Santiago v. 8ar 6astern !roadcasting o., 37 na el/, @that the constitutionalit/ of a law wig not be considered unless the point is speciall/ pleaded, insisted upon, and ade.uatel/ argued.@ 3& @E.ual protection@ is not a talis anic for ula at the ere invocation of which a part/ to a lawsuit can rightfull/ e"pect that success will crown his efforts. !he law is an/thing but that. G+ERE9<RE, this petition is dis issed. !he restraining order is lifted. !his decision is i ediatel/ e"ecutor/. No costs. astro' .(.' !arredo' )ntonio' Santos' 8ernandez' Guerrero' )bad Santos' ,e astro and 5elencio-:errera' concur. 5a"asiar' (' reserves the right to file a separate opinion. )quino (.' too" no part. oncepcion (.' is on leave. astro' .(.' certifies that (ustice oncepcion concurs in their decision. Se/!r!te O/1"1o"0 TEEH$N@EE, J., dissenting> - dissent fro the ajorit/Js pere ptor/ dis issal of the petition and lifting of the restraining order issued on <ctober '(, '(&: against the blan0et enforce ent of the re.uire ent that all otor vehicles be e.uipped with the soAcalled earl/ warning device, without even hearing the parties in oral argu ent as generall/ re.uired b/ the Court in original cases of farAreaching conse.uence such as the case at bar.

Bac0 of ti e presents / filing an e"tended dissent. - onl/ wish to state that the petition advances grave and serious grounds of assailing @the rules and regulations issued b/ the Band !ransportation Co ission under Ad inistrative <rder No. ' and Me orandu Circular No. 2$ CwhichD do not reflect the real intent, noble objectives and spirit of Better of -nstructions No. $$(, as a ended b/ Better of -nstructions Nos. )&( and &'3, because it is oppressive, unreasonable, arbitrar/, confiscator/, na/ unconstitutional and contrar/ to the precepts of our co passionate New #ociet/,@ because of the following considerations, inter alia? '. -t is oppressive, arbitrar/ and discri inator/ to re.uire owners of otor vehicles with builtAin and ore effective and efficient E.G.=.J# such as @a5 blin0ing lights in the fore and aft of said otor vehicles, '55 batter/Apowered blin0ing lights inside otor vehicles, c5 builtAin reflectori1ed tapes on front and rear bu pers of otor vehicles....... to purchase the E.G.=. specified in the challenged ad inistrative order, whose effectivit/ and utilit/ have /et to be de onstrated. $. !he public necessit/ for the challenged order has /et to be shown. No valid refutation has been ade of petitionerJs assertion that the @E.G.=.Js are not too vital to the prevention of nightti e vehicular accidents. #tatistics shows that of the $3,;;; otor vehicle accidents that occurred in '(&3, onl/ 2(; or '.% per cent involved rearAend collisions,@ as to re.uire the purchase and installation of the .uestioned E.G.=. for al ost (;;,;;; vehicles throughout the countr/? 2. !he big financial burden to be i posed on all otorists is staggering, and petitionerJs assertion that @as of '(&%, there were at least :3%,;2& otor vehicles all over the countr/ re.uiring E.G.=.J# and at the ini u price of ''%3.;; per set, this would ean a consu er outla/ of P ):,)%',:&$.;;, or close to P %; illion for the .uestioned E.G.=.J# @stands unchallenged? ). No real effort has been ade to show that there can be practical and less burdenso e alternative road safet/ devices for stalled vehicles than the prescribed E.G.=., such as the co on petroleu la ps @0in0e@ which can be placed just as effectivel/ in front of stalled vehicles on the highwa/s? and %. !here is no i perative need for i posing such a bet re.uire ent on all vehicles. !he respondents have not shown that the/ have availed of the powers and prerogatives vested in their offices such as ridding the countr/ of dilapidated truc0s and vehicles which are the ain cause of the deplorable Ahighwa/ accidents due to stoned vehicles, establishing an honest and foolproof s/ste of e"a ination and licensing of otor vehicle drivers so as to ban the rec0less and irresponsible and a sustained education ca paign to instill safe driving habits and attitudes that can be carried out for uch less than the P %; illion burden that would be i posed b/ the challenged order. - do feel that a greater @degree of receptivit/ and s/ path/@ could be e"tended to the petitioner for his civic indedness in having filed the present petition g as capricious and unreasonable the @all pervading police power@ of the #tate instead of throwing the case out of court and leaving the wrong

i pression that the e"ercise of police power insofar as it a/ affect the life, libert/ and propert/ of an/ person is no longer subject to judicial in.uir/. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-21&97 October 22, 1963 R$MON $. GON=$LES, petitioner, vs. RU INO G. HECH$NO8$, !0 E4ec7t1(e Secret!r5, M$C$RIO PER$LT$, .R., !0 Secret!r5 o6 %e6e"0e, PE%RO GIMENE=, !0 $7#1tor Ge"er!:, CORNELIO ,$LM$CE%$, !0 Secret!r5 o6 Co))erce !"# I"#70tr5, !"# S$L8$%OR M$RINO, Secret!r5 o6 .70t1ce, respondents. +amon ). Gonzales in his own behalf as petitioner. Office of the Solicitor General and 6stanislao 8ernandez for respondents. CONCEPCION, J.: !his is an original action for prohibition with preli inar/ injunction. -t is not disputed that on #epte ber $$, '(32, respondent E"ecutive #ecretar/ authori1ed the i portation of 3&,;;; tons of foreign rice to be purchased fro private sources, and created a rice procure ent co ittee co posed of the other respondents herein' for the i ple entation of said proposed i portation. !hereupon, or #epte ber $%, '(32, herein petitioner, Ra on A. 6on1ales 7 a rice planter, and president of the -loilo Pala/ and Corn Planters Association, whose e bers are, li0ewise, engaged in the production of rice and corn 7 filed the petition herein, averring that, in a0ing or atte pting to a0e said i portation of foreign rice, the afore entioned respondents @are acting without jurisdiction or in e"cess of jurisdiction@, because Republic Act No. 2)%$ which allegedl/ repeals or a ends Republic Act No. $$; 7 e"plicitl/ prohibits the i portation of rice and corn @the Rice and Corn Ad inistration or any other government agency?@ that petitioner has no other plain, speed/ and ade.uate re ed/ in the ordinar/ course of law? and that a preli inar/ injunction is necessar/ for the preservation of the rights of the parties during the pendenc/ this case and to prevent the judg ent therein fro co ing ineffectual. Petitioner pra/ed, therefore, that said petition be given due course? that a writ of preli inar/ injunction be forthwith issued restraining respondent their agents or representatives fro i ple enting the decision of the E"ecutive #ecretar/ to i port the afore entioned foreign rice? and that, after due hearing, judg ent be rendered a0ing said injunction per anent. 9orthwith, respondents were re.uired to file their answer to the petition which the/ did, and petitionerJs pra/ for a writ of preli inar/ injunction was set for hearing at which both parties appeared and argued orall/. Moreover, a e orandu was filed, shortl/ thereafter, b/ the respondents. Considering, later on, that the resolution said incident a/ re.uire so e pronounce ents that would be ore appropriate in a decision on the erits of the case, the

sa e was set for hearing on the erits thereafter. !he parties, however, waived the right to argue orall/, although counsel for respondents filed their e oranda. -. Sufficiency of petitioner@s interest. Respondents aintain that the status of petitioner as a rice planter does not give hi sufficient interest to file the petition herein and secure the relief therein pra/ed for. Ge find no erit in this pretense. Apart fro prohibiting the i portation of rice and corn @b/ the Rice and Corn Ad inistration or an/ other govern ent agenc/@. Republic Act No. 2)%$ declares, in #ection ' thereof, that @the polic/ of the 6overn ent@ is to @engage in the purchase of these basic foods directly fro those tenants, far ers, growers, producers and landowners in the #hilippines who wish to dispose of their products at a price that will afford the a fair and just return for their labor and capital invest ent. ... .@ Pursuant to this provision, petitioner, as a planter with a rice land of substantial proportion,$ is entitled to a chance to sell to the 6overn ent the rice it now see0s to bu/ abroad. Moreover, since the purchase of said co odit/ will have to be effected with public funds ainl/ raised b/ ta"ation, and as a rice producer and landowner petitioner ust necessaril/ be a ta"pa/er, it follows that he has sufficient personalit/ and interest to see0 judicial assistance with a view to restraining what he believes to be an atte pt to unlawfull/ disburse said funds. --. 6=haustion of administrative remedies. Respondents assail petitionerJs right to the reliefs pra/ed for because he @has not e"hausted all ad inistrative re edies available to hi before co ing to court@. Ge have alread/ held, however, that the principle re.uiring the previous e"haustion of ad inistrative re edies is not applicable where the .uestion in dispute is purel/ a legal one@, 2 or where the controverted act is @patentl/ illegal@ or was perfor ed without jurisdiction or in e"cess of jurisdiction,) or where the respondent is a depart ent secretar/, whose acts as an alterAego of the President bear the i plied or assu ed approval of the latter,% unless actuall/ disapproved b/ hi ,3 or where there are circu stances indicating the urgenc/ of judicial intervention. & !he case at bar fails under each one of the foregoing e"ceptions to the general rule. RespondentsJ contention is, therefore, untenable. ---. 5erits of petitioner@s cause of action. Respondents .uestion the sufficienc/ of petitionerJs cause of action upon the theor/ that the proposed i portation in .uestion is not governed b/ Republic Acts Nos. $$;& and 2)%$, but was authori1ed b/ the President as Co anderAinAChief @for ilitar/ stoc0 pile purposes@ in the e"ercise of his alleged authorit/ under #ection $ of Co onwealth Act No. '?: that in cases of necessit/, the President @or his subordinates a/ ta0e such preventive easure for the restoration of good order and aintenance of peace@? and that, as Co anderAinAChief of our ar ed forces, @the President ... is dut/A bound to prepare for the challenge of threats of war or e ergenc/ without waiting for any special authority@.

Regardless of whether Republic Act No. 2)%$ repeals Republic Act No. $$;&, as contended b/ petitioner herein A on which our view need not be e"pressed 7 we are unani ousl/ of the opinion A assu ing that said Republic Act No. $$;& is still in force 7 that the two Acts are applicable to the proposed i portation in .uestion because the language of said laws is such as to include within the purview thereof all i portations of rice and corn into the Philippines@. Pursuant to Republic Act No. $$;&, @it shall be unlawful for any person, association, corporation or government agency to i port rice and corn into an/ point in the Philippines@, although, b/ wa/ of e"ception, it adds, that Athe #resident of the #hilippines a/ authori1e the i portation of these co odities through an/ govern ent agenc/ that he a/ designate@, is the conditions prescribed in #ection $ of said Act are present. #i ilarl/, Republic Act No. 2)%$ e"plicitl/ enjoins @the Rice and Corn Ad inistration or any government agency@ fro i porting rice and corn. Respondents allege, however, that said provisions of Republic Act Nos. $$;& and 2)%$, prohibiting the i portation of rice and corn b/ an/ @govern ent agenc/@, do not appl/ to i portations @ ade b/ the 6overn ent itself@, because the latter is not a @govern ent agenc/@. !his theor/ is devoid of erit. !he =epart ent of National =efense and the Ar ed 9orces of the Philippines, as well as respondents herein, and each and ever/ officer and e plo/ee of our 6overn ent, our govern ent agencies andIor agents. !he applicabilit/ of said laws even to i portations b/ the 6overn ent as such, beco es ore apparent when we consider that> '. !he i portation per itted in Republic Act No. $$;& is to be authori1ed b/ the A#resident of the #hilippinesA and, hence, b/ or on behalf of the 6overn ent of the Philippines? $. ediatel/ after enjoining the Rice and Corn ad inistration and an/ other govern ent agenc/ fro i porting rice and corn, #ection '; of Republic Act No. 2)%$ adds @that the importation of rice and corn is left to private parties upon pa/ ent of the corresponding ta"es@, thus indicating that only @private parties@ a/ i port rice under its provisions? and 2. Aside fro prescribing a fine not e"ceeding P';,;;;.;; and i prison ent of not ore than five 4%5 /ears for those who shall violate an/ provision of Republic Act No. 2)%$ or an/ rule and regulation pro ulgated pursuant thereto, #ection '% of said Act provides that @if the offender is a public official andIor e plo/ees@, he shall be subject to the additional penalt/ specified therein. A public official is an officer of the Government itself, as distinguished fro officers or e plo/ees of instru entalities of the 6overn ent. +ence, the duly authorized acts of the former are those of the Government , unli0e those of a govern ent instru entalit/ which a/ have a personalit/ of its own, distinct and separate fro that of the 6overn ent, as such. !he provisions of Republic Act No. $$;& are, in this respect, even ore e"plicit. #ection 2 thereof provides a si ilar additional penalt/ for an/ @officer or e plo/ee of the Government@ who @violates, abets or tolerates the violation of an/ provision@ of said Act. +ence, the intent to appl/ the sa e to transactions ade by the very government is patent.

-ndeed, the restrictions i posed in said Republic Acts are erel/ additional to those prescribed in Co onwealth Act No. '2:, entitled @An Act to give native products and do estic entities the preference in the purchase of articles for the Government.@ Pursuant to #ection ' thereof> !he Purchase and E.uip ent =ivision of the Government of the #hilippines and other officers and e plo/ees of the unicipal and provincial govern ents and the Government of the #hilippines and of chartered cities, boards, co issions, bureaus' departments' offices' agencies' branches, and bodies of an/ description, including govern entAowned co panies, authori1ed to re.uisition, purchase, or contract or a0e disburse ents for articles, aterials, and supplies for public use, public buildings, or public wor0s shall give preference to materials ... produced ... in the #hilippines or in the Fnited #tates, and to domestic entities, subject to the conditions hereinbelow specified. 4E phasis supplied.5 Fnder this provision, in all purchases by the Government, including those ade b/ andIor for the ar ed forces, preference shall be given to materials produced in the #hilippines. !he i portation involved in the case at bar violates this general polic/ of our 6overn ent, aside fro the provisions of Republic Acts Nos. $$;& and 2)%$. !he atte pt to justif/ the proposed i portation b/ invo0ing reasons of national securit/ 7 predicated upon the @worsening situation in Baos and Eietna @, and @the recent tension created b/ the Mala/sia proble @ A and the alleged powers of the President as Co anderAinAChief of all ar ed forces in the Philippines, under #ection $ of the National =efense Act 4Co onwealth Act No. '5, overloo0s the fact that the protection of local planters of rice and corn in a anner that would foster and accelerate selfA sufficienc/ in the local production of said co odities constitutes a factor that is vital to our abilit/ to eet possible national e ergenc/. Even if the intent in i porting goods in anticipation of such e ergenc/ were to bolster up that abilit/, the latter would, instead, be i paired if the i portation were so ade as to discourage our far ers fro engaging in the production of rice. Besides, the stoc0piling of rice and corn for purpose of national securit/ andIor national e ergenc/ is within the purview of Republic Act No. 2)%$. #ection 2 thereof e"pressl/ authori1es the Rice and Corn Ad inistration @to accu ulate stoc0s as a national reserve in such .uantities as it a/ dee proper and necessar/ to eet any contingencies@. Moreover, it ordains that Athe buffer stoc"s held as a national reserve ... be deposited by the administration throughout the country under the proper dispersal plans ... and a/ be released onl/ upon the occurrence of cala ities or emergencies ...@. 4E phasis applied.5 Again, the provisions of #ection $ of Co onwealth Act No. ', upon which respondents rel/ so uch, are not selfAe"ecutor/. !he/ erel/ outline the general objectives of said legislation. !he eans for the attain ent of those objectives are subject to congressional legislation. !hus, the conditions under which the services of citi1ens, as indicated in said #ection $, a/ be availed of, are provided for in #ections 2, ) and %' to :: of said

Co onwealth Act No. '. #i ilarl/, #ection % thereof specifies the anner in which resources necessar/ for our national defense a/ be secured b/ the 6overn ent of the Philippines, but onl/ @during a national mobilization@,( which does not e"ist. -nferentiall/, therefore, in the absence of a national obili1ation, said resources shall be produced in such anner as Congress a/ b/ other laws provide fro ti e to ti e. -nsofar as rice and corn are concerned, Republic Acts Nos. $$;& and 2)%$, and Co onwealth Act No. '2: are such laws. Respondents cite Corwin in support of their pretense, but in vain. An e"a ination of the wor0 cited'; shows that Corwin referred to the powers of the President during @war ti e@'' or when he has placed the countr/ or a part thereof under @ artial law@.'$ #ince neither condition obtains in the case at bar, said wor0 erel/ proves that respondentsJ theor/, if accepted, would, in effect, place the Philippines under artial law, without a declaration of the E"ecutive to that effect. Ghat is worse, it would 0eep us perpetually under artial law. -t has been suggested that even if the proposed i portation violated Republic Acts Nos. $$;& and 2)%$, it should, nevertheless, be per itted because @it redounds to the benefit of the people@. Salus populi est suprema le=, it is said. -f there were a local shortage of rice, the argu ent might have so e value. But the respondents, as officials of this 6overn ent, have e"pressl/ affir ed again and again that there is no rice shortage. And the i portation is avowedl/ for stoc0pile of the )rmy 7 not the civilian population. But let us follow the respondentsJ trend of thought. -t has a ore serious i plication that appears on the surface. -t i plies that if an e"ecutive officer believes that co pliance with a certain statute will not benefit the people, he is at libert/ to disregard it. !hat idea ust be rejected A we still live under a rule of law. And then, @the people@ are either producers or consu ers. Now 7 as respondents e"plicitl/ ad it 7 Republic Acts Nos. $$;& and 2)%$ were approved b/ the Begislature for the benefit of producers and consu ers, i.e., the people, it ust follow that the welfare of the people lies precisel/ in the compliance with said Acts. -t is not for respondent e"ecutive officers now to set their own opinions against that of the Begislature, and adopt eans or wa/s to set those Acts at naught. An/wa/, those laws per it i portation 7 but under certain conditions, which have not been, and should be co plied with. -E. The contracts with Vietnam and !urma 7 -t is lastl/ contended that the 6overn ent of the Philippines has alread/ entered into two 4$5 contracts for the Purchase of rice, one with the Republic of Eietna , and another with the 6overn ent of Bur a? that these contracts constitute valid e"ecutive agree ents under international law? that such agree ents beca e binding effective upon the signing thereof b/ representatives the parties thereto? that in case of conflict between Republic Acts Nos. $$;& and 2)%$ on the one hand, and afore entioned contracts, on

the other, the latter should prevail, because, if a treat/ and a statute are inconsistent with each other, the conflict ust be resolved 7 under the A erican jurisprudence 7 in favor of the one which is latest in point of ti e? that petitioner herein assails the validit/ of acts of the E"ecutive relative to foreign relations in the conduct of which the #upre e Court cannot interfere? and the afore entioned contracts have alread/ been consu ated, the 6overn ent of the Philippines having alread/ paid the price of the rice involved therein through irrevocable letters of credit in favor of the sell of the said co odit/. Ge find no erit in this pretense. !he Court is not satisfied that the status of said tracts as alleged e"ecutive agree ents has been sufficientl/ established. !he parties to said contracts do not pear to have regarded the sa e as e"ecutive agree ents. But, even assu ing that said contracts a/ properl/ considered as e"ecutive agree ents, the sa e are unlawful, as well as null and void, fro a constitutional viewpoint, said agree ents being inconsistent with the provisions of Republic Acts Nos. $$;& and 2)%$. Although the President a/, under the A erican constitutional s/ste enter into e"ecutive agree ents without previous legislative authorit/, he a/ not, b/ e"ecutive agree ent, enter into a transaction which is prohibited b/ statutes enacted prior thereto. Fnder the Constitution, the ain function of the E"ecutive is to enforce laws enacted b/ Congress. !he for er a/ not interfere in the perfor ance of the legislative powers of the latter, e"cept in the e"ercise of his veto power. +e a/ not defeat legislative enact ents that have ac.uired the status of law, b/ indirectly repealing the sa e through an e"ecutive agree ent providing for the performance of the very act prohibited by said laws. !he A erican theor/ to the effect that, in the event of conflict between a treaty and a statute, the one which is latest in point of ti e shall prevail, is not applicable to the case at bar, for respondents not onl/ ad it, but, also insist that the contracts adverted to are not treaties. #aid theor/ a/ be justified upon the ground that treaties to which the Fnited #tates is signator/ re.uire the advice and consent of its #enate, and, hence, of a branch of the legislative depart ent. No such justification can be given as regards e"ecutive agree ents not authori1ed b/ previous legislation, without co pletel/ upsetting the principle of separation of powers and the s/ste of chec0s and balances which are funda ental in our constitutional set up and that of the Fnited #tates. As regards the .uestion whether an international agree ent a/ be invalidated b/ our courts, suffice it to sa/ that the Constitution of the Philippines has clearl/ settled it in the affir ative, b/ providing, in #ection $ of Article E--- thereof, that the #upre e Court a/ not be deprived @of its jurisdiction to review, revise, reverse, odif/, or affir on appeal, certiorari, or writ of error as the law or the rules of court a/ provide, final judg ents and decrees of inferior courts in 7 4'5 All cases in which the constitutionality or validity of an/ treaty, law, ordinance, or e"ecutive order or regulation is in .uestion@. -n other words, our Constitution authori1es the nullification of a

treat/, not onl/ when it conflicts with the funda ental law, but' also' when it runs counter to an act of ongress. !he alleged consu ation of the afore entioned contracts with Eietna and Bur a does not render this case acade ic, Republic Act No. $$;& enjoins our 6overn ent not fro entering into contracts for the purchase of rice, but fro importing rice, e"cept under the conditions Prescribed in said Act. Fpon the other hand, Republic Act No. 2)%$ has two 4$5 ain features, na el/> 4a5 it re.uires the 6overn ent to purchase rice and corn directly fro our local planters, growers or landowners? and 4b5 it prohibits importations of rice b/ the 6overn ent, and leaves such i portations to private parties. !he pivotal issue in this case is whether the proposed importation 7 which has not been consu ated as /et 7 is legall/ feasible. Bastl/, a judicial declaration of illegalit/ of the proposed i portation would not co pel our 6overn ent to default in the perfor ance of such obligations as it a/ have contracted with the sellers of the rice in .uestion, because, aside fro the fact that said obligations a/ be co plied with without importing the co odit/ into the Philippines, the proposed i portation a/ still be legali1ed b/ co pl/ing with the provisions of the afore entioned laws. E. The writ of preliminary injunction. !he e bers of the Court have divergent opinions on the .uestion whether or not respondents herein should be enjoined fro i ple enting the afore entioned proposed i portation. +owever, the ajorit/ favors the negative view, for which reason the injunction pra/ed for cannot be granted. G+ERE9<RE, judg ent is hereb/ rendered declaring that respondent E"ecutive #ecretar/ had and has no power to authori1e the i portation in .uestion? that he e"ceeded his jurisdiction in granting said authorit/? said i portation is not sanctioned b/ law and is contrar/ to its provisions? and that, for lac0 of the re.uisite ajorit/, the injunction pra/ed for ust be and is, accordingl/ denied. -t is so ordered. !engzon' (' #adilla' *abrador' +eyes' (.!.*.' ,izon and 5a"alintal' ((.' concur. #aredes and +egala' ((.' concur in the result. Se/!r!te O/1"1o"0 ,$UTIST$ $NGELO, J., concurring> Fnder Republic Act No. $$;&, which too0 effect on Ma/ '%, '(%(, it is unlawful for an/ person, association, corporation or govern ent agenc/ to i port rice and corn into an/ point in the Philippines. !he e"ception is if there is an e"isting or i inent shortage of such co odit/ of uch gravit/ as to constitute national e ergenc/ in which case an i portation a/ be authori1ed b/ the President when so certified b/ the National Econo ic Council. +owever, on *une '), '(3$, Republic Act 2)%$ was enacted providing that the i portation of rice and corn can only be ade b/ private parties thereb/ prohibiting fro doing so the Rice and Corn Ad inistration or an/ other govern ent agenc/. Republic Act 2)%$ does not e"pressl/ repeal Republic Act $$;&, but onl/ repeals or odified those parts thereof that are

inconsistent with its provisions. !he .uestion that now arises is> +as the enact ent of Republic Act 2)%$ the effect of prohibiting co pletel/ the govern ent fro i porting rice and corn into the PhilippinesM M/ answer is in the negative. #ince this Act does not in an/ anner provide for the i portation of rice and corn in case of national e ergenc/, the provision of the for er law on that atter should stand, for that is not inconsistent with an/ provision e bodied in Republic Act 2)%$. !he Rice and Corn Ad inistration, or an/ other govern ent agenc/, a/ therefore still i port rice and corn into the Philippines as provided in Republic Act $$;& if there is a declared national e ergenc/. !he ne"t .uestion that arises is> Can the govern ent authori1e the i portation of rice and corn regardless of Republic Act $$;& if that is authori1ed b/ the President as Co anderAinAChief of the Philippine Ar / as a ilitar/ precautionar/ easure for ilitar/ stoc0pileM Respondents answer this .uestion in the affir ative. !he/ advance the argu ent that it is the PresidentJs dut/ to see to it that the Ar ed 9orces of the Philippines are geared to the defenses of the countr/ as well as to the fulfill ent of our international co it ents in #outheast Asia in the event the peace and securit/ of the area are in danger. !he stoc0piling of rice, the/ aver, is an essential re.uire ent of defense preparation in view of the li ited local suppl/ and the probable disruption of trade and co erce with outside countries in the event of ar ed hostilities, and this ilitar/ precautionar/ easure is necessar/ because of the unsettled conditions in the #outheast Asia bordering on actual threats of ar ed conflicts as evaluated b/ the -ntelligence #ervice of the Militar/ =epart ent of our 6overn ent. !his advocac/, the/ contend, finds support in the national defense polic/ e bodied in #ection $ of our National =efense Act 4Co onwealth Act No. '5, which provides> 4a5 !he preservation of the #tate is the obligation of ever/ citi1en. !he securit/ of the Philippines and the freedo , independence and perpetual neutralit/ of the Philippine Republic shall be guaranteed b/ the e plo/ ent of all citi1ens, without distinction of se" or age, and all resources. 4b5 !he e plo/ ent of the nationJs citi1ens and resources for national defense shall be effected b/ a national obili1ation. 4c5 !he national obili1ation shall include the e"ecution of all easures necessar/ to pass fro a peace to a war footing. 4d5 !he civil authorit/ shall alwa/s be supre e. !he President of the Philippines as the Co anderAinAChief of all ilitar/ forces, shall be responsible that obili1ation easures are prepared at all ti es.4E phasis supplied5 -ndeed, - find in that declaration of polic/ that the securit/ of the Philippines and its freedo constitutes the core of the preservation of our #tate which is the basic dut/ of ever/ citi1en and that to secure which it is enjoined that the President e plo/ all the resources at his co and. But over and above all that power and dut/, funda ental as the/ a/ see , there is the injunction that the civil authorit/ shall alwa/s be supre e. !his injunction can onl/

ean that while all precautions should be ta0en to insure the securit/ and preservation of the #tate and to this effect the e plo/ ent of all resources a/ be resorted to, the action ust alwa/s be ta0en within the fra ewor0 of the civil authorit/. Militar/ authorit/ should be har oni1ed and coordinated with civil authorit/, the onl/ e"ception being when the law clearl/ ordains otherwise. Neither Republic Act $$;&, nor Republic Act 2)%$, contains an/ e"ception in favor of ilitar/ action concerning i portation of rice and corn. An e"ception ust be strictl/ construed. A distinction is ade between the govern ent and govern ent agenc/ in an atte pt to ta0e the for er out of the operation of Republic Act $$;&. disagree. !he 6overn ent of the Republic of the Philippines under the Revised Ad inistrative Code refers to that entit/ through which the functions of govern ent are e"ercised, including the various ar s through which political authorit/ is ade effective whether the/ be provincial, unicipal or other for of local govern ent, whereas a govern ent instru entalit/ refers to corporations owned or controlled b/ the govern ent to pro ote certain aspects of the econo ic life of our people. A govern ent agenc/, therefore, ust necessaril/ refer to the govern ent itself of the Republic, as distinguished fro an/ govern ent instru entalit/ which has a personalit/ distinct and separate fro it 4#ection $5. !he i portant point to deter ine, however, is whether we should enjoin respondents fro carr/ing out the i portation of the rice which according to the record has been authori1ed to be i ported on government to government level, it appearing that the arrange ent to this effect has alread/ been concluded, the onl/ thing lac0ing being its i ple entation. !his is evident fro the anifestation sub itted b/ the #olicitor 6eneral wherein it appears that the contract for the purchase of )&,;;; tons of rice fro had been sign on <ctober %, '(32, and for the purchase of $;,;;; tons fro Bur a on <ctober :, '(32, b/ the authori1ed representatives of both our govern ent and the govern ents of Eietna and Bur a, respectivel/. -f it is true that, our govern ent has alread/ ade a for al co it ent with the selling countries there arises the .uestion as to whether the act can still be i peded at this stage of the negotiations. !hough on this score there is a divergence of opinion, it is gratif/ing to note that the ajorit/ has e"pressed itself against it. !his is a plausible attitude for, had the writ been issued, our govern ent would have been placed in a predica ent where, as a necessar/ conse.uence, it would have to repudiate a dul/ for ali1ed agree ent to its great e barrass ent and loss of face. !his was avoided b/ the judicial states anship evinced b/ the Court. ,$RRER$, J., concurring> Because of possible co plications that ight be aggravated b/ isrepresentation of the true nature and scope of the case before this Court, it is well to restate as clearl/ as possible, the real and onl/ issue presented b/ the respondents representing the govern ent. 9ro the answer filed b/ the #olicitor 6eneral, in behalf of respondents, we .uote>

!he i portation of the rice in .uestion b/ the Ar ed 9orces of the Philippines is for military stoc"piling authori1ed b/ the President pursuant to his inherent power as co anderAinAchief and as a military precautionary measure in view the worsening situation in Baos and Eietna and, it a/ added, the recent, tension created b/ the Mala/sia proble 4Answer, p. $? e phasis supplied.5 =uring the oral argu ent, #enator 9ernande1, appealing in behalf of the respondents, li0ewise reiterated the i ported rice was for ilitar/ stoc0piling, and which he ad itted that so e of it went to the Rice and Corn Ad inistration, he e phasi1ed again and again that rice was not intended for the RCA for distribution to people, as there was no shortage of rice for that purpose but it was onl/ e"changed for pala/ because this could better preserved. 9ro the e orandu filed thereafter b/ the #olicits 6eneral, again the clai was ade> Ge respectfull/ reiterate the argu ents in our answer dated <ctober ), '(32 that the i portation of rice sought be enjoined in this petition is in the e"ercise of the authorit/ vested in the President of the Philippines as Co anderAinAChief of the Ar ed 9orces, as a measure of military preparedness demanded by a real and actual threat of emergency in the South 6ast )sian countries. 4p. ', E phasis supplied.5 """ """ """ -t 4the stressing of the unsettled conditions in #outheast Asia5 is merely our intention to show the necessit/ for the stoc0piling of rice for army purposes' which is the very reason for the importation. """ """ """ )s it is' the importation in question is being made by the +epublic of the #hilippines for its own use' and the rice is not supposed to be poured into the open mar"et as to affect the price to be paid by the public . 4p. ), E phasis supplied.5 """ """ """ Ghat we do contend is that the law, for want of e"press and clear provision to that effect, does not include in its prohibition importation by the Government of rice for its own use and not for the consuming public' regardless of whether there is or there is no emergency. 4p. %, E phasis supplied.5 9ro the above, it not onl/ appears but is evident that the respondents were not concerned with the present rice situation confronting the consuming public, but were solel/ and e"clusivel/ after the stoc0piling of rice for the future use of the army. !he issue, therefore, in which the 6overn ent was interested is not whether rice is i ported to give the people a bigger or greater suppl/ to aintain the price at P.:; per ganta 7 for, to .uote again their contention> @the rice is not supposed to be poured into the open ar0et to affect the price to be paid b/ the public, as it is not for the consu ing public, regardless of whether there is or there is no e ergenc/@, 7 but whether rice can legall/ be i ported b/ the Ar ed 9orces of the Philippines

avowedl/ for its future use, notwithstanding the prohibitor/ provisions of Republic Acts Nos. $$;& and 2)%$. !he ajorit/ opinion abl/ sets forth the reasons wh/ this Court can not accept the contention of the respondents that this i portation is be/ond and outside the operation of these statutes. - can onl/ e phasi1e that - see in the theor/ advanced b/ the #olicitor 6eneral a dangerous trend 7 that because the policies enunciated in the cited laws are for the protection of the producers and the consu ers, the ar / is re oved fro their application. !o adopt this theor/ is to proclai the e"istence in the Philippines of three econo ic groups or classes> the producers, the consu ers, and the Ar ed 9orces of the Philippines. Ghat is ore portentous is the effect to e.uate the ar / with the 6overn ent itself. !hen again, the i portation of this rice for ilitar/ stoc0piling is sought to be justified b/ the alleged threat of e ergenc/ in the #outheast Asian countries. But the e"istence of this supposed threat was unilaterall/ deter ined b/ the =epart ent of National =efense alone. Ge recall that there e"ists a bod/ called the National #ecurit/ Council in which are represented the E"ecutive as well as the Begislative depart ent. -n it sit not onl/ e bers of the part/ in power but of the opposition as well. !o our 0nowledge, this is the highest consultative bod/ which deliberates precisel/ in ti es of e ergenc/ threatening to affect the securit/ of the state. !he de ocratic co position of this council is to guarantee that its deliberations would be nonApartisan and onl/ the best interests of the nation will be considered. Being a deliberative bod/, it insures against precipitate action. !his is as it should be. <therwise, in these da/s of ever present cold war, an/ change or develop ent in the political cli ate in an/ region of the world is apt to be ta0en as an e"cuse for the ilitar/ to conjure up a crisis or e ergenc/ and thereupon atte pt to override our laws and legal processes, and i perceptibl/ institute so e 0ind of artial law on the prete"t of precautionar/ obili1ation easure avowedl/ in the interest of the securit/ of the state. <ne need not, be too i aginative to perceive a hint of this in the present case. !he #upre e Court, in arriving at the conclusion unani ousl/ reached, is full/ aware of the difficult and delicate tas0 it had to discharge. -ts position is liable to be e"ploited b/ so e for their own purposes b/ clai ing and a0ing it appear that the Court is un indful of the plight of our people during these da/s of hardship? that it preferred to give substance to the @niceties of the law than heed the needs of the people. <ur answer is that the Court was left no alternative. -t had, in co pliance with its dut/, to decide the case upon the facts presented to it. !he respondents, representing the ad inistration, steadfastl/ aintained and insisted that there is no rice shortage? that the i ported rice is not for the consu ing public and is not supposed to be placed in the open ar0et to affect the price to be paid b/ the public? that it is solel/ for stoc0piling of the ar / for future use as a easure of obili1ation in the face of what the =epart ent of National =efense unilaterall/ dee ed a threatened ar ed conflict in #outheast Asia. Confronted with these facts upon, which the 6overn ent has built and rested its case, we have searched in vain for legal authorit/ or cogent reasons to justif/ this i portation ade

ad ittedl/ contrar/ to the provisions of Republic Acts Nos. $$;& and 2)%$. sa/ ad ittedl/, because respondents never as uch as pretended that the i portation fulfills the conditions specified in these laws, but li ited the selves to the contention, which is their sole defense that this i portation does not fall within the scope of said laws. -n our view, however, the laws are clear. !he laws are co prehensive and their application does not ad it of an/ e"ception. !he laws are ade.uate. Co pliance therewith is not difficult, uch less i possible. !he avowed e ergenc/, if at all, is not urgentl/ i ediate. -n this connection, it is pertinent to bear in ind that the #upre e Court has a dut/ to perfor under the Constitution. -t has to decide, when called upon to do so in an appropriate proceeding, all cases in which the constitutionalit/ or validit/ of an/ treat/, law, ordinance, e"ecutive order or regulation is in .uestion. Ge can not elude this dut/. !o do so would be culpable dereliction on our part. Ghile we s/ pathi1e with the public that ight be adversel/ affected as a result of this decision /et our s/ path/ does not authori1e us to sanction an act contrar/ to applicable laws. !he fault lies with those who stubbornl/ contended and represented before this Court that there is no rice shortage, that the i ported rice is not intended for the consu ing public, but for stoc0piling of the ar /. And, if as now clai ed before the public, contrar/ to the 6overn entJs stand in this case, that there is need for i ported rice to stave off hunger, our legislature has provided for such a situation. As alread/ stated, the laws are ade.uate. !he i portation of rice under the conditions set forth in the laws a/ be authori1ed not onl/ where there is an e=isting shortage, but also when the shortage is imminent. -n other words, lawful re ed/ to solve the situation is available, if onl/ those who have the dut/ to e"ecute the laws perfor their dut/. -f there is reall/ need for the i portation of rice, who adopt so e dubious eans which necessitates resort to doubtful e"ercise of the power of the President as Co anderAinAChief of the Ar /M Gh/ not co pl/ with the andate of the lawM <urs is supposed to be a regi e under the rule of law. Adoption as a govern ent polic/ of the theor/ of the end justifies the eans brushing aside constitutional and legal restraints, ust be rejected, lest we end up with the end of freedo . 9or these reasons, - concur in the decision of the Court. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 13&'7* October 1*, 2*** ,$+$N A,!2o"2 $:5!"0!"2 M!;!b!5!"B, ! .UN@ 8 $ MO8EMENT, ,ISHOP TOM$S MILL$MEN$ AI2:e01! 1:1/1"! I"#e/e"#1e"teB, ,ISHOP ELMER ,OLOC$N AU"1te# C37rc3 o6 C3r10t o6 t3e P31:.B, %R. RE+N$L%O LEG$SC$, M%, @ILUS$NG M$M,U,U@I% NG PILIPIN$S, @ILUS$NG M$+O UNO, G$,RIEL$, PROL$,OR, !"# t3e PU,LIC INTEREST L$- CENTER, petitioners'

vs. ECECUTI8E SECRET$R+ RON$L%O =$MOR$, OREIGN $ $IRS SECRET$R+ %OMINGO SI$=ON, %E ENSE SECRET$R+ ORL$N%O MERC$%O, ,RIG. GEN. $LEC$N%ER $GUIRRE, SEN$TE PRESI%ENT M$RCELO ERN$N, SEN$TOR R$N@LIN %RILON, SEN$TOR ,L$S OPLE, SEN$TOR RO%OL O ,I$=ON, !"# SEN$TOR R$NCISCO T$T$%, respondents. "AAAAAAAAAAAAAAAAAAAAAAA" G.R. No. 13&'72 October 1*, 2*** PHILIPPINE CONSTITUTION $SSOCI$TION, INC.APHILCONS$B, ECE>UIEL ,. G$RCI$, $M$%OG$T INCIONG, C$MILO L. S$,IO, $N% R$MON $. GON=$LES, petitioners' vs. HON. RON$L%O ,. =$MOR$, !0 E4ec7t1(e Secret!r5, HON. ORL$N%O MERC$%O, !0 Secret!r5 o6 N!t1o"!: %e6e"0e, !"# HON. %OMINGO L. SI$=ON, .R., !0 Secret!r5 o6 ore12" $66!1r0, respondents. "AAAAAAAAAAAAAAAAAAAAAAA" G.R. No. 13&'&7 October 1*, 2*** TEO ISTO T. GUINGON$, .R., R$UL S. ROCO, !"# SERGIO R. OSMED$ III, petitioners' vs. .OSEPH E. ESTR$%$, RON$L%O ,. =$MOR$, %OMINGO L. SI$=ON, .R., ORL$N%O ,. MERC$%O, M$RCELO ,. ERN$N, R$N@LIN M. %RILON, ,L$S . OPLE !"# RO%OL O G. ,I$=ON, respondents. "AAAAAAAAAAAAAAAAAAAAAAA" G.R. No. 13&6&* October 1*, 2*** INTEGR$TE% ,$R O THE PHILIPPINES, Re/re0e"te# b5 1t0 N!t1o"!: Pre01#e"t, .o0e $271:! Gr!/1:o", petitioners' vs. .OSEPH E.ERCITO ESTR$%$, 1" 310 c!/!c1t5 !0 Pre01#e"t, Re/7b:1c o6 t3e P31:1//1"e0, !"# HON. %OMINGO SI$=ON, 1" 310 c!/!c1t5 !0 Secret!r5 o6 ore12" $66!1r0, respondents. "AAAAAAAAAAAAAAAAAAAAAAA" G.R. No. 13&69& October 1*, 2*** .O8ITO R. S$LONG$, -IG,ERTO T$D$%$, =EN$I%$ >UE=ON$8ENCED$, ROL$N%O SIM,UL$N, P$,LITO 8. S$NI%$%, M$. SOCORRO I. %IO@NO, $G$PITO $. $>UINO, .O@ER P. $RRO+O, R$NCISCO C. RI8ER$ .R., RENE $.8. S$GUIS$G, @ILOS,$+$N, MO8EMENT O $TTORNE+S OR ,ROTHERHOO%, INTEGRIT+ $N% N$TION$LISM, INC. AM$,INIB, petitioners' vs. THE ECECUTI8E SECRET$R+, THE SECRET$R+ O OREIGN $ $IRS, THE SECRET$R+ O N$TION$L %E ENSE, SEN$TE PRESI%ENT M$RCELO ,. ERN$N, SEN$TOR ,L$S . OPLE, SEN$TOR RO%OL O G. ,I$=ON, $N% $LL OTHER PERSONS $CTING

THEIR CONTROL, SUPER8ISION, %IRECTION, $N% INSTRUCTION IN REL$TION TO THE 8ISITING ORCES $GREEMENT A8 $B, respondents. =EC-#-<N ,UEN$, J.: Confronting the Court for resolution in the instant consolidated petitions for certiorari and prohibition are issues relating to, and borne b/, an agree ent forged in the turn of the last centur/ between the Republic of the Philippines and the Fnited #tates of A erica Athe Eisiting 9orces Agree ent. !he antecedents unfold. <n March '), '()&, the Philippines and the Fnited #tates of A erica forged a Militar/ Bases Agree ent which for ali1ed, a ong others, the use of installations in the Philippine territor/ b/ Fnited #tates ilitar/ personnel. !o further strengthen their defense and securit/ relationship, the Philippines and the Fnited #tates entered into a Mutual =efense !reat/ on August 2;, '(%'. Fnder the treat/, the parties agreed to respond to an/ e"ternal ar ed attac0 on their territor/, ar ed forces, public vessels, and aircraft. ' -n view of the i pending e"piration of the RPAF# Militar/ Bases Agree ent in '((', the Philippines and the Fnited #tates negotiated for a possible e"tension of the ilitar/ bases agree ent. <n #epte ber '3, '((', the Philippine #enate rejected the proposed RPAF# !reat/ of 9riendship, Cooperation and #ecurit/ which, in effect, would have e"tended the presence of F# ilitar/ bases in the Philippines.$ Gith the e"piration of the RPAF# Militar/ Bases Agree ent, the periodic ilitar/ e"ercises conducted between the two countries were held in abe/ance. Notwithstanding, the defense and securit/ relationship between the Philippines and the Fnited #tates of A erica continued pursuant to the Mutual =efense !reat/. <n *ul/ ':, '((&, the Fnited #tates panel, headed b/ F# =efense =eput/ Assistant #ecretar/ for Asia Pacific ,urt Ca pbell, et with the Philippine panel, headed b/ 9oreign Affairs Fndersecretar/ Rodolfo #everino *r., to e"change notes on @the co ple enting strategic interests of the Fnited #tates and the Philippines in the AsiaAPacific region.@ Both sides discussed, a ong other things, the possible ele ents of the Eisiting 9orces Agree ent 4E9A for brevit/5. Negotiations b/ both panels on the E9A led to a consolidated draft te"t, which in turn resulted to a final series of conferences and negotiations2 that cul inated in Manila on *anuar/ '$ and '2, '((:. !hereafter, then President 9idel E. Ra os approved the E9A, which was respectivel/ signed b/ public respondent #ecretar/ #ia1on and Fnites #tates A bassador !ho as +ubbard on 9ebruar/ ';, '((:. <n <ctober %, '((:, President *oseph E. Estrada, through respondent #ecretar/ of 9oreign Affairs, ratified the E9A.) <n <ctober 3, '((:, the President, acting through respondent E"ecutive #ecretar/ Ronaldo Pa ora, officiall/ trans itted to the #enate of the Philippines,% the -nstru ent of Ratification, the letter of the President 3 and the E9A, for concurrence pursuant to #ection $', Article E-- of the '(:& Constitution. !he #enate, in turn, referred the E9A to its Co ittee on 9oreign Relations, chaired b/ #enator Blas 9. <ple, and its Co ittee on

National =efense and #ecurit/, chaired b/ #enator Rodolfo 6. Bia1on, for their joint consideration and reco endation. !hereafter, joint public hearings were held b/ the two Co ittees.& <n Ma/ 2, '(((, the Co ittees sub itted Proposed #enate Resolution No. ))2: reco ending the concurrence of the #enate to the E9A and the creation of a Begislative <versight Co ittee to oversee its i ple entation. =ebates then ensued. <n Ma/ $&, '(((, Proposed #enate Resolution No. ))2 was approved b/ the #enate, b/ a twoAthirds 4$I25 vote( of its e bers. #enate Resolution No. ))2 was then reAnu bered as #enate Resolution No. ':. '; <n *une ', '(((, the E9A officiall/ entered into force after an E"change of Notes between respondent #ecretar/ #ia1on and Fnited #tates A bassador +ubbard. !he E9A, which consists of a Prea ble and nine 4(5 Articles, provides for the echanis for regulating the circu stances and conditions under which F# Ar ed 9orces and defense personnel a/ be present in the Philippines, and is .uoted in its full te"t, hereunder> @Article =efinitions @As used in this Agree ent, QFnited #tates personnelR eans Fnited #tates ilitar/ and civilian personnel te poraril/ in the Philippines in connection with activities approved b/ the Philippine 6overn ent. @Githin this definition> @'. !he ter Q ilitar/ personnelR refers to ilitar/ e bers of the Fnited #tates Ar /, Nav/, Marine Corps, Air 9orce, and Coast 6uard. @$. !he ter Qcivilian personnelR refers to individuals who are neither nationals of, nor ordinar/ residents in the Philippines and who are e plo/ed b/ the Fnited #tates ar ed forces or who are acco pan/ing the Fnited #tates ar ed forces, such as e plo/ees of the A erican Red Cross and the Fnited #ervices <rgani1ation. @Article -Respect for Baw @-t is the dut/ of the Fnited #tates personnel to respect the laws of the Republic of the Philippines and to abstain fro an/ activit/ inconsistent with the spirit of this agree ent, and, in particular, fro an/ political activit/ in the Philippines. !he 6overn ent of the Fnited #tates shall ta0e all easures within its authorit/ to ensure that this is done. @Article --Entr/ and =eparture @'. !he 6overn ent of the Philippines shall facilitate the ad ission of Fnited #tates personnel and their departure fro the Philippines in connection with activities covered b/ this agree ent. @$. Fnited #tates ilitar/ personnel shall be e"e pt fro passport and visa regulations upon entering and departing the Philippines.

@2. !he following docu ents onl/, which shall be presented on de and, shall be re.uired in respect of Fnited #tates ilitar/ personnel who enter the Philippines> @4a5 personal identit/ card issued b/ the appropriate Fnited #tates authorit/ showing full na e, date of birth, ran0 or grade and service nu ber 4if an/5, branch of service and photograph? @4b5 individual or collective docu ent issued b/ the appropriate Fnited #tates authorit/, authori1ing the travel or visit and identif/ing the individual or group as Fnited #tates ilitar/ personnel? and @4c5 the co anding officer of a ilitar/ aircraft or vessel shall present a declaration of health, and when re.uired b/ the cogni1ant representative of the 6overn ent of the Philippines, shall conduct a .uarantine inspection and will certif/ that the aircraft or vessel is free fro .uarantinable diseases. An/ .uarantine inspection of Fnited #tates aircraft or Fnited #tates vessels or cargoes thereon shall be conducted b/ the Fnited #tates co anding officer in accordance with the international health regulations as pro ulgated b/ the Gorld +ealth <rgani1ation, and utuall/ agreed procedures. @). Fnited #tates civilian personnel shall be e"e pt fro visa re.uire ents but shall present, upon de and, valid passports upon entr/ and departure of the Philippines. @%. -f the 6overn ent of the Philippines has re.uested the re oval of an/ Fnited #tates personnel fro its territor/, the Fnited #tates authorities shall be responsible for receiving the person concerned within its own territor/ or otherwise disposing of said person outside of the Philippines. @Article -E =riving and Eehicle Registration @'. Philippine authorities shall accept as valid, without test or fee, a driving per it or license issued b/ the appropriate Fnited #tates authorit/ to Fnited #tates personnel for the operation of ilitar/ or official vehicles. @$. Eehicles owned b/ the 6overn ent of the Fnited #tates need not be registered, but shall have appropriate ar0ings. @Article E Cri inal *urisdiction @'. #ubject to the provisions of this article> 4a5 Philippine authorities shall have jurisdiction over Fnited #tates personnel with respect to offenses co itted within the Philippines and punishable under the law of the Philippines. 4b5 Fnited #tates ilitar/ authorities shall have the right to e"ercise within the Philippines all cri inal and disciplinar/ jurisdiction conferred on the b/ the ilitar/ law of the Fnited #tates over Fnited #tates personnel in the Philippines. @$. 4a5 Philippine authorities e"ercise e"clusive jurisdiction over Fnited #tates personnel with respect to offenses, including offenses relating to the securit/ of the Philippines, punishable under the laws of the Philippines, but not under the laws of the Fnited #tates.

4b5 Fnited #tates authorities e"ercise e"clusive jurisdiction over Fnited #tates personnel with respect to offenses, including offenses relating to the securit/ of the Fnited #tates, punishable under the laws of the Fnited #tates, but not under the laws of the Philippines. 4c5 9or the purposes of this paragraph and paragraph 2 of this article, an offense relating to securit/ eans> 4'5 treason? 4$5 sabotage, espionage or violation of an/ law relating to national defense. @2. -n cases where the right to e"ercise jurisdiction is concurrent, the following rules shall appl/> 4a5 Philippine authorities shall have the pri ar/ right to e"ercise jurisdiction over all offenses co itted b/ Fnited #tates personnel, e"cept in cases provided for in paragraphs '4b5, $ 4b5, and 2 4b5 of this Article. 4b5 Fnited #tates ilitar/ authorities shall have the pri ar/ right to e"ercise jurisdiction over Fnited #tates personnel subject to the ilitar/ law of the Fnited #tates in relation to. 4'5 offenses solel/ against the propert/ or securit/ of the Fnited #tates or offenses solel/ against the propert/ or person of Fnited #tates personnel? and 4$5 offenses arising out of an/ act or o ission done in perfor ance of official dut/. 4c5 !he authorities of either govern ent a/ re.uest the authorities of the other govern ent to waive their pri ar/ right to e"ercise jurisdiction in a particular case. 4d5 Recogni1ing the responsibilit/ of the Fnited #tates ilitar/ authorities to aintain good order and discipline a ong their forces, Philippine authorities will, upon re.uest b/ the Fnited #tates, waive their pri ar/ right to e"ercise jurisdiction e"cept in cases of particular i portance to the Philippines. -f the 6overn ent of the Philippines deter ines that the case is of particular i portance, it shall co unicate such deter ination to the Fnited #tates authorities within twent/ 4$;5 da/s after the Philippine authorities receive the Fnited #tates re.uest. 4e5 Ghen the Fnited #tates ilitar/ co ander deter ines that an offense charged b/ authorities of the Philippines against Fnited states personnel arises out of an act or o ission done in the perfor ance of official dut/, the co ander will issue a certificate setting forth such deter ination. !his certificate will be trans itted to the appropriate authorities of the Philippines and will constitute sufficient proof of perfor ance of official dut/ for the purposes of paragraph 24b54$5 of this Article. -n those cases where the 6overn ent of the Philippines believes the circu stances of the case re.uire a review of the dut/ certificate, Fnited #tates ilitar/ authorities and Philippine authorities shall consult i ediatel/. Philippine authorities at the highest levels a/ also present an/ infor ation bearing on its validit/. Fnited #tates ilitar/ authorities shall ta0e full account of the Philippine position. Ghere appropriate, Fnited #tates ilitar/ authorities will ta0e disciplinar/ or

other action against offenders in official dut/ cases, and notif/ the 6overn ent of the Philippines of the actions ta0en. 4f5 -f the govern ent having the pri ar/ right does not e"ercise jurisdiction, it shall notif/ the authorities of the other govern ent as soon as possible. 4g5 !he authorities of the Philippines and the Fnited #tates shall notif/ each other of the disposition of all cases in which both the authorities of the Philippines and the Fnited #tates have the right to e"ercise jurisdiction. @). Githin the scope of their legal co petence, the authorities of the Philippines and Fnited #tates shall assist each other in the arrest of Fnited #tates personnel in the Philippines and in handling the over to authorities who are to e"ercise jurisdiction in accordance with the provisions of this article. @%. Fnited #tates ilitar/ authorities shall pro ptl/ notif/ Philippine authorities of the arrest or detention of Fnited #tates personnel who are subject of Philippine pri ar/ or e"clusive jurisdiction. Philippine authorities shall pro ptl/ notif/ Fnited #tates ilitar/ authorities of the arrest or detention of an/ Fnited #tates personnel. @3. !he custod/ of an/ Fnited #tates personnel over who the Philippines is to e"ercise jurisdiction shall i ediatel/ reside with Fnited #tates ilitar/ authorities, if the/ so re.uest, fro the co ission of the offense until co pletion of all judicial proceedings. Fnited #tates ilitar/ authorities shall, upon for al notification b/ the Philippine authorities and without dela/, a0e such personnel available to those authorities in ti e for an/ investigative or judicial proceedings relating to the offense with which the person has been charged in e"traordinar/ cases, the Philippine 6overn ent shall present its position to the Fnited #tates 6overn ent regarding custod/, which the Fnited #tates 6overn ent shall ta0e into full account. -n the event Philippine judicial proceedings are not co pleted within one /ear, the Fnited #tates shall be relieved of an/ obligations under this paragraph. !he oneA/ear period will not include the ti e necessar/ to appeal. Also, the oneA/ear period will not include an/ ti e during which scheduled trial procedures are dela/ed because Fnited #tates authorities, after ti el/ notification b/ Philippine authorities to arrange for the presence of the accused, fail to do so. @&. Githin the scope of their legal authorit/, Fnited #tates and Philippine authorities shall assist each other in the carr/ing out of all necessar/ investigation into offenses and shall cooperate in providing for the attendance of witnesses and in the collection and production of evidence, including sei1ure and, in proper cases, the deliver/ of objects connected with an offense. @:. Ghen Fnited #tates personnel have been tried in accordance with the provisions of this Article and have been ac.uitted or have been convicted and are serving, or have served their sentence, or have had their sentence re itted or suspended, or have been pardoned, the/ a/ not be tried again for the sa e offense in the Philippines. Nothing in this paragraph, however, shall prevent Fnited #tates ilitar/ authorities fro tr/ing Fnited #tates

personnel for an/ violation of rules of discipline arising fro the act or o ission which constituted an offense for which the/ were tried b/ Philippine authorities. @(. Ghen Fnited #tates personnel are detained, ta0en into custod/, or prosecuted b/ Philippine authorities, the/ shall be accorded all procedural safeguards established b/ the law of the Philippines. At the ini u , Fnited #tates personnel shall be entitled> 4a5 !o a pro pt and speed/ trial? 4b5 !o be infor ed in advance of trial of the specific charge or charges ade against the and to have reasonable ti e to prepare a defense? 4c5 !o be confronted with witnesses against the and to cross e"a ine such witnesses? 4d5 !o present evidence in their defense and to have co pulsor/ process for obtaining witnesses? 4e5 !o have free and assisted legal representation of their own choice on the sa e basis as nationals of the Philippines? 4f5 !o have the service of a co petent interpreter? and 4g5 !o co unicate pro ptl/ with and to be visited regularl/ b/ Fnited #tates authorities, and to have such authorities present at all judicial proceedings. !hese proceedings shall be public unless the court, in accordance with Philippine laws, e"cludes persons who have no role in the proceedings. @';. !he confine ent or detention b/ Philippine authorities of Fnited #tates personnel shall be carried out in facilities agreed on b/ appropriate Philippine and Fnited #tates authorities. Fnited #tates Personnel serving sentences in the Philippines shall have the right to visits and aterial assistance. @''. Fnited #tates personnel shall be subject to trial onl/ in Philippine courts of ordinar/ jurisdiction, and shall not be subject to the jurisdiction of Philippine ilitar/ or religious courts. @Article EClai s @'. E"cept for contractual arrange ents, including Fnited #tates foreign ilitar/ sales letters of offer and acceptance and leases of ilitar/ e.uip ent, both govern ents waive an/ and all clai s against each other for da age, loss or destruction to propert/ of each otherRs ar ed forces or for death or injur/ to their ilitar/ and civilian personnel arising fro activities to which this agree ent applies. @$. 9or clai s against the Fnited #tates, other than contractual clai s and those to which paragraph ' applies, the Fnited #tates 6overn ent, in accordance with Fnited #tates law regarding foreign clai s, will pa/ just and reasonable co pensation in settle ent of eritorious clai s for da age, loss, personal injur/ or death, caused b/ acts or o issions of Fnited #tates personnel, or otherwise incident to the nonAco bat activities of the Fnited #tates forces. @Article E-- portation and E"portation

@'. Fnited #tates 6overn ent e.uip ent, aterials, supplies, and other propert/ i ported into or ac.uired in the Philippines b/ or on behalf of the Fnited #tates ar ed forces in connection with activities to which this agree ent applies, shall be free of all Philippine duties, ta"es and other si ilar charges. !itle to such propert/ shall re ain with the Fnited #tates, which a/ re ove such propert/ fro the Philippines at an/ ti e, free fro e"port duties, ta"es, and other si ilar charges. !he e"e ptions provided in this paragraph shall also e"tend to an/ dut/, ta", or other si ilar charges which would otherwise be assessed upon such propert/ after i portation into, or ac.uisition within, the Philippines. #uch propert/ a/ be re oved fro the Philippines, or disposed of therein, provided that disposition of such propert/ in the Philippines to persons or entities not entitled to e"e ption fro applicable ta"es and duties shall be subject to pa/ ent of such ta"es, and duties and prior approval of the Philippine 6overn ent. @$. Reasonable .uantities of personal baggage, personal effects, and other propert/ for the personal use of Fnited #tates personnel a/ be i ported into and used in the Philippines free of all duties, ta"es and other si ilar charges during the period of their te porar/ sta/ in the Philippines. !ransfers to persons or entities in the Philippines not entitled to i port privileges a/ onl/ be ade upon prior approval of the appropriate Philippine authorities including pa/ ent b/ the recipient of applicable duties and ta"es i posed in accordance with the laws of the Philippines. !he e"portation of such propert/ and of propert/ ac.uired in the Philippines b/ Fnited #tates personnel shall be free of all Philippine duties, ta"es, and other si ilar charges. @Article E--Move ent of Eessels and Aircraft @'. Aircraft operated b/ or for the Fnited #tates ar ed forces a/ enter the Philippines upon approval of the 6overn ent of the Philippines in accordance with procedures stipulated in i ple enting arrange ents. @$. Eessels operated b/ or for the Fnited #tates ar ed forces a/ enter the Philippines upon approval of the 6overn ent of the Philippines. !he ove ent of vessels shall be in accordance with international custo and practice governing such vessels, and such agreed i ple enting arrange ents as necessar/. @2. Eehicles, vessels, and aircraft operated b/ or for the Fnited #tates ar ed forces shall not be subject to the pa/ ent of landing or port fees, navigation or over flight charges, or tolls or other use charges, including light and harbor dues, while in the Philippines. Aircraft operated b/ or for the Fnited #tates ar ed forces shall observe local air traffic control regulations while in the Philippines. Eessels owned or operated b/ the Fnited #tates solel/ on Fnited #tates 6overn ent nonAco ercial service shall not be subject to co pulsor/ pilotage at Philippine ports. @Article -L =uration and !er ination @!his agree ent shall enter into force on the date on which the parties have notified each other in writing through the diplo atic channel that the/ have

co pleted their constitutional re.uire ents for entr/ into force. !his agree ent shall re ain in force until the e"piration of ':; da/s fro the date on which either part/ gives the other part/ notice in writing that it desires to ter inate the agree ent.@ Via these consolidated'' petitions for certiorari and prohibition, petitioners A as legislators, nonAgovern ental organi1ations, citi1ens and ta"pa/ers A assail the constitutionalit/ of the E9A and i pute to herein respondents grave abuse of discretion in ratif/ing the agree ent. Ge have si plified the issues raised b/ the petitioners into the following> =o petitioners have legal standing as concerned citi1ens, ta"pa/ers, or legislators to .uestion the constitutionalit/ of the E9AM --s the E9A governed b/ the provisions of #ection $', Article E-- or of #ection $%, Article LE--- of the ConstitutionM --=oes the E9A constitute an abdication of Philippine sovereignt/M a. Are Philippine courts deprived of their jurisdiction to hear and tr/ offenses co itted b/ F# ilitar/ personnelM b. -s the #upre e Court deprived of its jurisdiction over offenses punishable b/ reclusion perpetua or higherM -E =oes the E9A violate> a. the e.ual protection clause under #ection ', Article --- of the ConstitutionM b. the Prohibition against nuclear weapons under Article --, #ection :M c. #ection $: 4)5, Article E- of the Constitution granting the e"e ption fro ta"es and duties for the e.uip ent, aterials supplies and other properties i ported into or ac.uired in the Philippines b/, or on behalf, of the F# Ar ed 9orcesM *O BS ST)/,< At the outset, respondents challenge petitionerRs standing to sue, on the ground that the latter have not shown an/ interest in the case, and that petitioners failed to substantiate that the/ have sustained, or will sustain direct injur/ as a result of the operation of the E9A. '$ Petitioners, on the other hand, counter that the validit/ or invalidit/ of the E9A is a atter of transcendental i portance which justifies their standing. '2 A part/ bringing a suit challenging the constitutionalit/ of a law, act, or statute ust show @not onl/ that the law is invalid, but also that he has sustained or in is in i ediate, or i inent danger of sustaining so e direct injur/ as a result of its enforce ent, and not erel/ that he suffers thereb/ in so e indefinite wa/.@ +e ust show that he has been, or is about to be, denied so e right or privilege to which he is lawfull/ entitled, or that he is about to be subjected to so e burdens or penalties b/ reason of the statute co plained of.') -n the case before us, petitioners failed to show, to the satisfaction of this Court, that the/ have sustained, or are in danger of sustaining an/ direct

injur/ as a result of the enforce ent of the E9A. As ta"pa/ers, petitioners have not established that the E9A involves the e"ercise b/ Congress of its ta"ing or spending powers.'% <n this point, it bears stressing that a ta"pa/erRs suit refers to a case where the act co plained of directl/ involves the illegal disburse ent of public funds derived fro ta"ation. '3 !hus, in Bugnay Const. & Development Corp. vs. Laron'& , we held> @" " " it is e"igent that the ta"pa/erAplaintiff sufficientl/ show that he would be benefited or injured b/ the judg ent or entitled to the avails of the suit as a real part/ in interest. Before he can invo0e the power of judicial review, he ust specificall/ prove that he has sufficient interest in preventing the illegal e"penditure of one/ raised b/ ta"ation and that he will sustain a direct injur/ as a result of the enforce ent of the .uestioned statute or contract. -t is not sufficient that he has erel/ a general interest co on to all e bers of the public.@ Clearl/, inas uch as no public funds raised b/ ta"ation are involved in this case, and in the absence of an/ allegation b/ petitioners that public funds are being isspent or illegall/ e"pended, petitioners, as ta"pa/ers, have no legal standing to assail the legalit/ of the E9A. #i ilarl/, Representatives Gigberto !aSada, Agapito A.uino and *o0er Arro/o, as petitionersAlegislators, do not possess the re.uisite locus standi to aintain the present suit. Ghile this Court, in Phil. Constitution Association vs. Hon. Salva or !nri"ue#,': sustained the legal standing of a e ber of the #enate and the +ouse of Representatives to .uestion the validit/ of a presidential veto or a condition i posed on an ite in an appropriation bull, we cannot, at this instance, si ilarl/ uphold petitionersR standing as e bers of Congress, in the absence of a clear showing of an/ direct injur/ to their person or to the institution to which the/ belong. Be/ond this, the allegations of i pair ent of legislative power, such as the delegation of the power of Congress to grant ta" e"e ptions, are ore apparent than real. Ghile it a/ be true that petitioners pointed to provisions of the E9A which allegedl/ i pair their legislative powers, petitioners failed however to sufficientl/ show that the/ have in fact suffered direct injur/. -n the sa e vein, petitioner -ntegrated Bar of the Philippines 4-BP5 is stripped of standing in these cases. As aptl/ observed b/ the #olicitor 6eneral, the -BP lac0s the legal capacit/ to bring this suit in the absence of a board resolution fro its Board of 6overnors authori1ing its National President to co ence the present action.'( Notwithstanding, in view of the para ount i portance and the constitutional significance of the issues raised in the petitions, this Court, in the e"ercise of its sound discretion, brushes aside the procedural barrier and ta0es cogni1ance of the petitions, as we have done in the earl/ !mergency Po$ers Cases,$; where we had occasion to rule> @" " " ordinar/ citi1ens and ta"pa/ers were allowed to .uestion the constitutionalit/ of several e"ecutive orders issued b/ President Kuirino although the/ were involving onl/ an indirect and general interest shared in co on with the public. !he Court dis issed the objection that the/ were

not proper parties and ruled that Qtr!"0ce"#e"t!: 1)/ort!"ce to t3e /7b:1c o6 t3e0e c!0e0 #e)!"#0 t3!t t3e5 be 0ett:e# /ro)/t:5 !"# #e61"1te:5, br7031"2 !01#e, 16 ?e )70t, tec3"1c!:1t1e0 o6 /roce#7re. R Ge have since then applied the e"ception in an/ other cases. 4Association of # all Bandowners in the Philippines, -nc. v. #ec. of Agrarian Refor , '&% #CRA 2)25.@ 4Fnderscoring #upplied5 !his principle was reiterated in the subse.uent cases of %on#ales vs. C&'!L!C,$' Da#a vs. Singson,$$ and Basco vs. Phil. Amusement an %aming Corporation,$2 where we e phaticall/ held> @Considering however the i portance to the public of the case at bar, and in 0eeping with the CourtRs dut/, under the '(:& Constitution, to deter ine whether or not the other branches of the govern ent have 0ept the selves within the li its of the Constitution and the laws and that the/ have not abused the discretion given to the , the Court has brushed aside technicalities of procedure and has ta0en cogni1ance of this petition. " " "@ Again, in the ore recent case of (ilos)ayan vs. %uingona, Jr.,$) thisCourt ruled that in cases of transcendental i portance, t3e Co7rt )!5 re:!4 t3e 0t!"#1"2 reE71re)e"t0 !"# !::o? ! 071t to /ro0/er e(e" ?3ere t3ere 10 "o #1rect 1"F7r5 to t3e /!rt5 c:!1)1"2 t3e r123t o6 F7#1c1!: re(1e? . Although courts generall/ avoid having to decide a constitutional .uestion based on the doctrine of separation of powers, which enjoins upon the depart ents of the govern ent a beco ing respect for each othersR acts, $% this Court nevertheless resolves to ta0e cogni1ance of the instant petitions. )##*< )!*6 O/ST<TBT<O/)* #+OV<S<O/ <ne focal point of in.uir/ in this controvers/ is the deter ination of which provision of the Constitution applies, with regard to the e"ercise b/ the senate of its constitutional power to concur with the E9A. Petitioners argue that #ection $%, Article LE--- is applicable considering that the E9A has for its subject the presence of foreign ilitar/ troops in the Philippines. Respondents, on the contrar/, aintain that #ection $', Article E-- should appl/ inas uch as the E9A is not a basing arrange ent but an agree ent which involves erel/ the te porar/ visits of Fnited #tates personnel engaged in joint ilitar/ e"ercises. !he '(:& Philippine Constitution contains two provisions re.uiring the concurrence of the #enate on treaties or international agree ents. #ection $', Article E--, which herein respondents invo0e, reads> @No treat/ or international agree ent shall be valid and effective unless concurred in b/ at least twoAthirds of all the Me bers of the #enate.@ #ection $%, Article LE---, provides> @After the e"piration in '((' of the Agree ent between the Republic of the Philippines and the Fnited #tates of A erica concerning Militar/ Bases, foreign ilitar/ bases, troops, or facilities shall not be allowed in the Philippines e"cept under a treat/ dul/ concurred in b/ the senate and, when the Congress so re.uires, ratified b/ a ajorit/ of the votes cast b/ the people in a national referendu held for that purpose, and recogni1ed as a treat/ b/ the other contracting #tate.@

#ection $', Article E-- deals with treatise or international agree ents in general, in which case, the concurrence of at least twoAthirds 4$I25 of all the Me bers of the #enate is re.uired to a0e the subject treat/, or international agree ent, valid and binding on the part of the Philippines. !his provision la/s down the general rule on treatise or international agree ents and applies to an/ for of treat/ with a wide variet/ of subject atter, such as, but not li ited to, e"tradition or ta" treatise or those econo ic in nature. All treaties or international agree ents entered into b/ the Philippines, regardless of subject atter, coverage, or particular designation or appellation, re.uires the concurrence of the #enate to be valid and effective. -n contrast, #ection $%, Article LE--- is a special provision that applies to treaties which involve the presence of foreign ilitar/ bases, troops or facilities in the Philippines. Fnder this provision, the concurrence of the #enate is onl/ one of the re.uisites to render co pliance with the constitutional re.uire ents and to consider the agree ent binding on the Philippines. #ection $%, Article LE--- further re.uires that @foreign ilitar/ bases, troops, or facilities@ a/ be allowed in the Philippines onl/ b/ virtue of a treat/ dul/ concurred in b/ the #enate, ratified b/ a ajorit/ of the votes cast in a national referendu held for that purpose if so re.uired b/ Congress, and recogni1ed as such b/ the other contracting state. -t is our considered view that both constitutional provisions, far fro contradicting each other, actuall/ share so e co on ground. !hese constitutional provisions both e bod/ phrases in the negative and thus, are dee ed prohibitor/ in andate and character. -n particular, #ection $' opens with the clause @No treat/ " " ",@ and #ection $% contains the phrase @shall not be allowed.@ Additionall/, in both instances, the concurrence of the #enate is indispensable to render the treat/ or international agree ent valid and effective. !o our ind, the fact that the President referred the E9A to the #enate under #ection $', Article E--, and that the #enate e"tended its concurrence under the sa e provision, is i aterial. 9or in either case, whether under #ection $', Article E-- or #ection $%, Article LE---, the funda ental law is cr/stalline that the concurrence of the #enate is andator/ to co pl/ with the strict constitutional re.uire ents. <n the whole, the E9A is an agree ent which defines the treat ent of Fnited #tates troops and personnel visiting the Philippines. -t provides for the guidelines to govern such visits of ilitar/ personnel, and further defines the rights of the Fnited #tates and the Philippine govern ent in the atter of cri inal jurisdiction, ove ent of vessel and aircraft, i portation and e"portation of e.uip ent, aterials and supplies. Fndoubtedl/, #ection $%, Article LE---, which specificall/ deals with treaties involving foreign ilitar/ bases, troops, or facilities, should appl/ in the instant case. !o a certain e"tent and in a li ited sense, however, the provisions of section $', Article E-- will find applicabilit/ with regard to the issue and for the sole purpose of deter ining the nu ber of votes re.uired to

obtain the valid concurrence of the #enate, as will be further discussed hereunder. -t is a finel/Ai bedded principle in statutor/ construction that a special provision or law prevails over a general one. Le* specialis erogat generali. !hus, where there is in the sa e statute a particular enact ent and also a general one which, in its ost co prehensive sense, would include what is e braced in the for er, the particular enact ent ust be operative, and the general enact ent ust be ta0en to affect onl/ such cases within its general language which are not within the provision of the particular enact ent.$3 -n Leveri#a vs. +nterme iate Appellate Court,$& we enunciated> @" " " that another basic principle of statutor/ construction andates that general legislation ust give wa/ to a special legislation on the sa e subject, and generall/ be so interpreted as to e brace onl/ cases in which the special provisions are not applicable 4#to. =o ingo vs. de los Angeles, (3 #CRA '2(5, that a specific statute prevails over a general statute 4=e *esus vs. People, '$; #CRA &3;5 and that where two statutes are of e.ual theoretical application to a particular case, the one designed therefor speciall/ should prevail 4Gil Gilhensen -nc. vs. Balu/ot, :2 #CRA 2:5.@ Moreover, it is specious to argue that #ection $%, Article LE--- is inapplicable to ere transient agree ents for the reason that there is no per anent placing of structure for the establish ent of a ilitar/ base. <n this score, the Constitution a0es no distinction between @transientR and @per anent@. Certainl/, we find nothing in #ection $%, Article LE--- that re.uires foreign troops or facilities to be stationed or placed permanently in the Philippines. -t is a rudi ent in legal her enuetics that when no distinction is ade b/ law, the Court should not distinguishA ,)i le* non istinguit nec nos istinguire e)emos. -n li0e anner, we do not subscribe to the argu ent that #ection $%, Article LE--- is not controlling since no foreign ilitar/ bases, but erel/ foreign troops and facilities, are involved in the E9A. Notabl/, a perusal of said constitutional provision reveals that the proscription covers @ foreign military bases' troops' or facilities.@ #tated differentl/, this prohibition is not li ited to the entr/ of troops and facilities without an/ foreign bases being established. !he clause does not refer to @foreign military bases' troops' or facilities@ collectivel/ but treats the as separate and independent subjects. !he use of co a and the disjunctive word @or@ clearl/ signifies disassociation and independence of one thing fro the others included in the enu eration, $: such that, the provision conte plates three different situations A a ilitar/ treat/ the subject of which could be either 4a5 foreign bases, 4b5 foreign troops, or 4c5 foreign facilities A an/ of the three standing alone places it under the coverage of #ection $%, Article LE---. !o this end, the intention of the fra ers of the Charter, as anifested during the deliberations of the '(:3 Constitutional Co ission, is consistent with this interpretation>

@MR. MAAMB<N6. - just want to address a .uestion or two to Co issioner Bernas. !his for ulation spea0s of three things> foreign ilitar/ bases, troops or facilities. M/ first .uestion is> I6 t3e co7"tr5 #oe0 e"ter 1"to 07c3 ;1"# o6 ! tre!t5, )70t 1t co(er t3e t3ree-b!0e0, troo/0 or 6!c1:1t1e0-or co7:# t3e tre!t5 e"tere# 1"to co(er o":5 o"e or t?oG 9R. BERNA#. %e61"1te:5, 1t c!" co(er o":5 o"e. -3et3er 1t co(er0 o":5 o"e or 1t co(er0 t3ree, t3e reE71re)e"t ?1:: be t3e 0!)e. MR. MAAMB<N6. I" ot3er ?or#0, t3e P31:1//1"e 2o(er")e"t c!" e"ter 1"to ! tre!t5 co(er1"2 "ot b!0e0 b7t )ere:5 troo/0G 9R. BERNA#. +e0. MR. MAAMB<N6. - cannot find an/ reason wh/ the govern ent can enter into a treat/ covering onl/ troops. 9R. BERNA#. Gh/ notM Probabl/ if we stretch our i agination a little bit ore, we will find so e. Ge just want to cover ever/thing.@ $( 4Fnderscoring #upplied5 Moreover, ilitar/ bases established within the territor/ of another state is no longer viable because of the alternatives offered b/ new eans and weapons of warfare such as nuclear weapons, guided issiles as well as huge sea vessels that can sta/ afloat in the sea even for onths and /ears without returning to their ho e countr/. !hese ilitar/ warships are actuall/ used as substitutes for a landAho e base not onl/ of ilitar/ aircraft but also of ilitar/ personnel and facilities. Besides, vessels are obile as co pared to a landAbased ilitar/ head.uarters. At this juncture, we shall then resolve the issue of whether or not the re.uire ents of #ection $% were co plied with when the #enate gave its concurrence to the E9A. #ection $%, Article LE--- disallows foreign ilitar/ bases, troops, or facilities in the countr/, unless the following conditions are sufficientl/ et, viz? 4a5 it ust be under a tre!t5? 4b5 the treat/ ust be #7:5 co"c7rre# 1" b5 t3e Se"!te and, when so re.uired b/ congress, ratified b/ a ajorit/ of the votes cast b/ the people in a national referendu ? and 4c5 reco2"1He# !0 ! tre!t5 b/ the other contracting state. !here is no dispute as to the presence of the first two re.uisites in the case of the E9A. !he concurrence handed b/ the #enate through Resolution No. ': is in accordance with the provisions of the Constitution, whether under the general re.uire ent in #ection $', Article E--, or the specific andate entioned in #ection $%, Article LE---, the provision in the latter article re.uiring ratification b/ a ajorit/ of the votes cast in a national referendu being unnecessar/ since Congress has not re.uired it. As to the atter of voting, Sect1o" 21, $rt1c:e 8II particularl/ re.uires that a treat/ or international agree ent, to be valid and effective, ust be co"c7rre# 1" b5 !t :e!0t t?o-t31r#0 o6 !:: t3e )e)ber0 o6 t3e Se"!te. <n the other hand, #ection $%, Article LE--- si pl/ provides that the treat/ be I#7:5 co"c7rre# 1" b5 t3e Se"!te.I

Appl/ing the foregoing constitutional provisions, a twoAthirds vote of all the e bers of the #enate is clearl/ re.uired so that the concurrence conte plated b/ law a/ be validl/ obtained and dee ed present. Ghile it is true that #ection $%, Article LE--- re.uires, a ong other things, that the treat/Athe E9A, in the instant caseAbe @dul/ concurred in b/ the #enate,@ it is ver/ true however that said provision ust be related and viewed in light of the clear andate e bodied in #ection $', Article E--, which in ore specific ter s, re.uires that the concurrence of a treat/, or international agree ent, be ade b/ a two Athirds vote of all the e bers of the #enate. -ndeed, #ection $%, Article LE--- ust not be treated in isolation to section $', Article, E--. As noted, the @concurrence re.uire ent@ under #ection $%, Article LE--- ust be construed in relation to the provisions of #ection $', Article E--. -n a ore particular language, the concurrence of the #enate conte plated under #ection $%, Article LE--- eans that at least twoAthirds of all the e bers of the #enate favorabl/ vote to concur with the treat/Athe E9A in the instant case. Fnder these circu stances, the charter provides that the #enate shall be co posed of twent/Afour 4$)5 #enators.2; Githout a tinge of doubt, twoAthirds 4$I25 of this figure, or not less than si"teen 4'35 e bers, favorabl/ acting on the proposal is an un.uestionable co pliance with the re.uisite nu ber of votes entioned in #ection $' of Article E--. !he fact that there were actuall/ twent/Athree 4$25 incu bent #enators at the ti e the voting was ade, 2' will not alter in an/ significant wa/ the circu stance that ore than twoAthirds of the e bers of the #enate concurred with the proposed E9A, even if the twoAthirds vote re.uire ent is based on this figure of actual e bers 4$25. -n this regard, the funda ental law is clear that twoAthirds of the $) #enators, or at least '3 favorable votes, suffice so as to render co pliance with the strict constitutional andate of giving concurrence to the subject treat/. +aving resolved that the first two re.uisites prescribed in #ection $%, Article LE--- are present, we shall now pass upon and delve on the re.uire ent that the E9A should be recogni1ed as a treat/ b/ the Fnited #tates of A erica. Petitioners content that the phrase @recogni1ed as a treat/,@ e bodied in section $%, Article LE---, eans that the E9A should have the advice and consent of the Fnited #tates #enate pursuant to its own constitutional process, and that it should not be considered erel/ an e"ecutive agree ent b/ the Fnited #tates. -n opposition, respondents argue that the letter of Fnited #tates A bassador +ubbard stating that the E9A is binding on the Fnited #tates 6overn ent is conclusive, on the point that the E9A is recogni1ed as a treat/ b/ the Fnited #tates of A erica. According to respondents, the E9A, to be binding, ust onl/ be accepted as a treat/ b/ the Fnited #tates. !his Court is of the fir view that the phrase -recogni#e as a treatyeans that the other contracting part/ accepts or ac.no$le ges the agree ent as a treat/.2$ !o re.uire the other contracting state, the Fnited #tates of A erica in this case, to sub it the E9A to the Fnited #tates #enate

for concurrence pursuant to its Constitution,22 is to accord strict eaning to the phrase. GellAentrenched is the principle that the words used in the Constitution are to be given their ordinar/ eaning e"cept where technical ter s are e plo/ed, in which case the significance thus attached to the prevails. -ts language should be understood in the sense the/ have in co on use. 2) Moreover, it is inconse.uential whether the Fnited #tates treats the E9A onl/ as an e"ecutive agree ent because, under international law, an e"ecutive agree ent is as binding as a treat/. 2% !o be sure, as long as the E9A possesses the ele ents of an agree ent under international law, the said agree ent is to be ta0en e.uall/ as a treat/. A treat/, as defined b/ the Eienna Convention on the Baw of !reaties, is @an international instru ent concluded between #tates in written for and governed b/ international law, whether e bodied in a single instru ent or in two or ore related instru ents, and whatever its particular designation.@ 23 !here are an/ other ter s used for a treat/ or international agree ent, so e of which are> act, protocol, agree ent, compromis dC arbitrage, concordat, convention, declaration, e"change of notes, pact, statute, charter and modus vivendi. All writers, fro +ugo 6rotius onward, have pointed out that the na es or titles of international agree ents included under the general ter treaty have little or no legal significance. Certain ter s are useful, but the/ furnish little ore than ere description. 2& Article $4$5 of the Eienna Convention provides that @the provisions of paragraph ' regarding the use of ter s in the present Convention are without prejudice to the use of those ter s, or to the eanings which a/ be given to the in the internal law of the #tate.@ !hus, in international law, there is no difference between treaties and e"ecutive agree ents in their binding effect upon states concerned, as long as the negotiating functionaries have re ained within their powers. 2: -nternational law continues to a0e no distinction between treaties and e"ecutive agree ents> the/ are e.uall/ binding obligations upon nations. 2( -n our jurisdiction, we have recogni1ed the binding effect of e"ecutive agree ents even without the concurrence of the #enate or Congress. -n Commissioner o/ Customs vs. !astern Sea 0ra ing,); we had occasion to pronounce> @" " " the right of the E"ecutive to enter into binding agree ents without the necessit/ of subse.uent congressional approval has been confirmed by long usage. 9ro the earliest da/s of our histor/ we have entered into e"ecutive agree ents covering such subjects as co ercial and consular relations, ostAfavoredAnation rights, patent rights, trade ar0 and cop/right protection, postal and navigation arrange ents and the settle ent of clai s. The validity of these has never been seriously questioned by our courts . @" " " " " " " " " @9urther ore, the Fnited #tates #upre e Court has e"pressl/ recogni1ed the validit/ and constitutionalit/ of e"ecutive agree ents entered into without #enate approval. A39 Co:7)b1! L!? Re(1e?, //. 7'3-7'4B ASee, !:0o, U.S.

vs. C7rt10 -r123t E4/ort Cor/or!t1o", 299 U.S. 3*4, &1 L. e#. 2''9 U.S. vs. ,e:)o"t, 3*1 U.S. 324, &1 L. e#. 11349 U.S. vs. P1";, 31' U.S. 2*3, &6 L. e#. 7969 OH!"1c vs. U.S. 1&& . 2#. 2&&9 +!:e L!? .o7r"!:, 8o:. 1' //. 19*'-19*69 C!:16or"1! L!? Re(1e?, 8o:. 2', //. 67*-67'9 H5#e o" I"ter"!t1o"!: L!? Jre(10e# E#1t1o"K, 8o:. 2, //. 14*', 1416-141&9 ?1::o723b5 o" t3e U.S. Co"0t1t7t1o" L!?, 8o:. I J2# e#.K, //. '37-'4*9 Moore, I"ter"!t1o"!: L!? %12e0t, 8o:. 8, //. 21*-21&9 H!c;?ort3, I"ter"!t1o"!: L!? %12e0t, 8o:. 8, //. 39*-4*7B. AIt!:1c0 S7//:1e#BI 4E phasis <urs5 !he deliberations of the Constitutional Co ission which drafted the '(:& Constitution is enlightening and highl/Ainstructive> @MR. M$$M,ONG. <f course it goes without sa/ing that as far as ratification of the other state is concerned, that is entirel/ their concern under their own laws. R. ,ERN$S. Hes, but we will accept whatever the/ sa/. -f the/ sa/ that we have done ever/thing to a0e it a treat/, then as far as we are concerned, we will accept it as a treat/.@)' !he records reveal that the Fnited #tates 6overn ent, through A bassador !ho as C. +ubbard, has stated that the Fnited #tates govern ent has full/ co itted to living up to the ter s of the E9A.)$ 9or as long as the united #tates of A erica accepts or ac0nowledges the E9A as a treat/, and binds itself further to co pl/ with its obligations under the treat/, there is indeed ar0ed co pliance with the andate of the Constitution. Gorth stressing too, is that the ratification, b/ the President, of the E9A and the concurrence of the #enate should be ta0en as a clear an une.uivocal e"pression of our nationRs consent to be bound b/ said treat/, with the conco itant dut/ to uphold the obligations and responsibilities e bodied thereunder. Ratification is generall/ held to be an e"ecutive act, underta0en b/ the head of the state or of the govern ent, as the case a/ be, through which the for al acceptance of the treat/ is proclai ed.)2 A #tate a/ provide in its do estic legislation the process of ratification of a treat/. !he consent of the #tate to be bound b/ a treat/ is e"pressed b/ ratification when> 4a5 the treat/ provides for such ratification, 4b5 it is otherwise established that the negotiating #tates agreed that ratification should be re.uired, 4c5 the representative of the #tate has signed the treat/ subject to ratification, or 4d5 the intention of the #tate to sign the treat/ subject to ratification appears fro the full powers of its representative, or was e"pressed during the negotiation.)) -n our jurisdiction, the power to ratif/ is vested in the President and not, as co onl/ believed, in the legislature. !he role of the #enate is li ited onl/ to giving or withholding its consent, or concurrence, to the ratification. )% Gith the ratification of the E9A, which is e.uivalent to final acceptance, and with the e"change of notes between the Philippines and the Fnited #tates of A erica, it now beco es obligator/ and incu bent on our part, under the principles of international law, to be bound b/ the ter s of the agree ent.

!hus, no less than #ection $, Article -- of the Constitution, )3 declares that the Philippines adopts the generall/ accepted principles of international law as part of the law of the land and adheres to the polic/ of peace, e.ualit/, justice, freedo , cooperation and a it/ with all nations. As a e ber of the fa il/ of nations, the Philippines agrees to be bound b/ generall/ accepted rules for the conduct of its international relations. Ghile the international obligation devolves upon the state and not upon an/ particular branch, institution, or individual e ber of its govern ent, the Philippines is nonetheless responsible for violations co itted b/ an/ branch or subdivision of its govern ent or an/ official thereof. As an integral part of the co unit/ of nations, we are responsible to assure that our govern ent, Constitution and laws will carr/ out our international obligation. )& +ence, we cannot readil/ plead the Constitution as a convenient e"cuse for nonAco pliance with our obligations, duties and responsibilities under international law. Be/ond this, Article '2 of the =eclaration of Rights and =uties of #tates adopted b/ the -nternational Baw Co ission in '()( provides> A6very State has the duty to carry out in good faith its obligations arising from treaties and other sources of international law' and it may not invo"e provisions in its constitution or its laws as an e=cuse for failure to perform this duty.A ): E.uall/ i portant is Article $3 of the convention which provides that @Ever/ treat/ in force is binding upon the parties to it and ust be perfor ed b/ the in good faith.@ !his is 0nown as the principle of pacta sunt servanda which preserves the sanctit/ of treaties and have been one of the ost funda ental principles of positive international law, supported b/ the jurisprudence of international tribunals.)( /O G+)V6 )!BS6 O8 ,<S +6T<O/ -n the instant controvers/, the President, in effect, is heavil/ faulted for e"ercising a power and perfor ing a tas0 conferred upon hi b/ the ConstitutionAthe power to enter into and ratif/ treaties. !hrough the e"pedienc/ of Rule 3% of the Rules of Court, petitioners in these consolidated cases i pute 2r!(e !b70e o6 #10cret1o" on the part of the chief E"ecutive in ratif/ing the E9A, and referring the sa e to the #enate pursuant to the provisions of #ection $', Article E-- of the Constitution. <n this particular atter, grave abuse of discretion i plies such capricious and whi sical e"ercise of judg ent as is e.uivalent to lac0 of jurisdiction, or, when the power is e"ercised in an arbitrar/ or despotic anner b/ reason of passion or personal hostilit/, and it ust be so patent and gross as to a ount to an evasion of positive dut/ enjoined or to act at all in conte plation of law.%; B/ constitutional fiat and b/ the intrinsic nature of his office, the President, as head of #tate, is the sole organ and authorit/ in the e"ternal affairs of the countr/. -n an/ wa/s, the President is the chief architect of the nationRs foreign polic/? his @do inance in the field of foreign relations is 4then5 conceded.@%' Gielding vast powers an influence, his conduct in the e"ternal affairs of the nation, as *efferson describes, is @e=ecutive altogether.@%$

As regards the power to enter into treaties or international agree ents, the Constitution vests the sa e in the President, subject onl/ to the concurrence of at least twoAthirds vote of all the e bers of the #enate. -n this light, the negotiation of the E9A and the subse.uent ratification of the agree ent are e"clusive acts which pertain solel/ to the President, in the lawful e"ercise of his vast e"ecutive and diplo atic powers granted hi no less than b/ the funda ental law itself. <nto the field of negotiation the Senate cannot intrude' and ongress itself is powerless to invade it.%2 Conse.uentl/, the acts or judg ent calls of the President involving the E9AAspecificall/ the acts of ratification and entering into a treat/ and those necessar/ or incidental to the e"ercise of such principal acts A s.uarel/ fall within the sphere of his constitutional powers and thus, a/ not be validl/ struc0 down, uch less calibrated b/ this Court, in the absence of clear showing of grave abuse of power or discretion. -t is the CourtRs considered view that the President, in ratif/ing the E9A and in sub itting the sa e to the #enate for concurrence, acted within the confines and li its of the powers vested in hi b/ the Constitution. -t is of no o ent that the President, in the e"ercise of his wide latitude of discretion and in the honest belief that the E9A falls within the a bit of #ection $', Article E-- of the Constitution, referred the E9A to the #enate for concurrence under the afore entioned provision. Certainl/, no abuse of discretion, uch less a grave, patent and whi sical abuse of judg ent, a/ be i puted to the President in his act of ratif/ing the E9A and referring the sa e to the #enate for the purpose of co pl/ing with the concurrence re.uire ent e bodied in the funda ental law. -n doing so, the President erel/ perfor ed a constitutional tas0 and e"ercised a prerogative that chiefl/ pertains to the functions of his office. Even if he erred in sub itting the E9A to the #enate for concurrence under the provisions of #ection $' of Article E--, instead of #ection $% of Article LE--- of the Constitution, still, the President a/ not be faulted or scarred, uch less be adjudged guilt/ of co itting an abuse of discretion in so e patent, gross, and capricious anner. 9or while it is conceded that Article E---, #ection ', of the Constitution has broadened the scope of judicial in.uir/ into areas nor all/ left to the political depart ents to decide, such as those relating to national securit/, it has not altogether done awa/ with political .uestions such as those which arise in the field of foreign relations.%) !he +igh !ribunalRs function, as sanctioned b/ Article E---, #ection ', Ais merely $to& chec" whether or not the governmental branch or agency has gone beyond the constitutional limits of its jurisdiction' not that it erred or has a different view. <n the absence of a showingD $of& grave abuse of discretion amounting to lac" of jurisdiction' there is no occasion for the ourt to e=ercise its corrective powerD<t has no power to loo" into what it thin"s is apparent error.A%% As to the power to concur with treaties, the constitution lodges the sa e with the #enate alone.4Ewphi4 !hus, once the #enate%3 perfor s that power, or e"ercises its prerogative within the boundaries prescribed b/ the Constitution, the concurrence cannot, in li0e anner, be viewed to constitute

an abuse of power, uch less grave abuse thereof. Corollaril/, the #enate, in the e"ercise of its discretion and acting within the li its of such power, a/ not be si ilarl/ faulted for having si pl/ perfor ed a tas0 conferred and sanctioned b/ no less than the funda ental law. 9or the role of the #enate in relation to treaties is essentiall/ legislative in character?%& the #enate, as an independent bod/ possessed of its own erudite ind, has the prerogative to either accept or reject the proposed agree ent, and whatever action it ta0es in the e"ercise of its wide latitude of discretion, pertains to the wisdo rather than the legalit/ of the act. -n this sense, the #enate parta0es a principal, /et delicate, role in 0eeping the principles of separation of powers and of chec"s and balances alive and vigilantl/ ensures that these cherished rudi ents re ain true to their for in a de ocratic govern ent such as ours. !he Constitution thus ani ates, through this treat/Aconcurring power of the #enate, a health/ s/ste of chec0s and balances indispensable toward our nationRs pursuit of political aturit/ and growth. !rue enough, rudi entar/ is the principle that atters pertaining to the wisdo of a legislative act are be/ond the a bit and province of the courts to in.uire. -n fine, absent an/ clear showing of grave abuse of discretion on the part of respondents, this CourtA as the final arbiter of legal controversies and staunch sentinel of the rights of the people A is then without power to conduct an incursion and eddle with such affairs purel/ e"ecutive and legislative in character and nature. 9or the Constitution no less, aps out the distinct boundaries and li its the etes and bounds within which each of the three political branches of govern ent a/ e"ercise the powers e"clusivel/ and essentiall/ conferred to it b/ law. -HERE ORE, in light of the foregoing dis.uisitions, the instant petitions are hereb/ =-#M-##E=. #< <R=ERE=. =avide, *r., C.*., Bellosillo, ,apunan, Kuisu bing, Purisi a, Pardo, 6on1agaARe/es, HnaresA#antiago, and =e Beon, *r., **., concur. Melo, and Eitug, **., join the dissent of *. Puno. Puno , *., see dissenting opinion. Mendo1a, *., in the result. Panganiban, *., no part due to close personal and for er professional relations with a petitioner, #en. *.R. #alonga. %ISSENTING OPINION PUNO, J.: !he cases at bar offer a s orgasbord of issues. As su ed up b/ the #olicitor 6eneral, the/ are> II =< PE!-!-<NER# +AEE #!AN=-N6 A# C<NCERNE= C-!-PEN#, !ALPAHER#, <R BE6-#BA!<R#M II -# !+E E9A C<N#-#!EN! G-!+ !+E 6ENERAB GEB9ARE CBAF#E <9 !+E C<N#!-!F!-<NM

III -# !+E E9A 6<EERNE= BH !+E PR<E-#-<N# <9 #EC!-<N $', AR!-CBE E-- <R #EC!-<N $%, AR!-CBE LE--- <9 !+E C<N#!-!F!-<NM I8 =<E# !+E E9A C<N#!-!F!E AN AB=-CA!-<N <9 P+-B-PP-NE #<EERE-6N!HM 4a5 =<E# !+E E9A =EPR-EE P+-B-PP-NE C<FR!# <9 !+E-R *FR-#=-C!-<N !< +EAR AN= !RH <99EN#E# C<MM-!!E= BH F.#. M-B-!ARH PER#<NNEBM 4b5 -# !+-# C<FR! =EPR-EE= <9 -!# *FR-#=-C!-<N <EER <99EN#E# PFN-#+ABBE BH RECBF#-<N PERPE!FA <R +-6+ERM 4c5 -# !+E 6RAN! <9 !AL ELEMP!-<N# FN=ER !+E E9A FNC<N#!-!F!-<NABM 8 =<E# !+E E9A E-<BA!E !+E EKFAB PR<!EC!-<N CBAF#E FN=ER #EC!-<N ', AR!-CBE --- <9 !+E C<N#!-!F!-<NM 8I -# !+E NFCBEAR BAN FN=ER #EC!-<N :, AR!-CBE -- <9 !+E C<N#-!F!-<N E-<BA!E= BH !+E E9AM 8II ARE 9-B-P-N<# =EN-E= !+E-R PER#<NAB AN= PR<PER!H R-6+! !< #FE 9<R !<R!# AN= =AMA6E#M 8III GA# !+ERE FN=FE =EBE6A!-<N <9 BE6-#BA!-EE P<GER -N !+E APPR<EAB <9 !+E E9AM IC =<E# !+E E9A C<N!RAEENE !+E P<B-CH <9 NEF!RAB-!H FN=ER #EC!-<N &, AR!-CBE -- <9 !+E C<N#!-!F!-<NM C -# !+E !ERM @AC!-E-!-E#@ FN=ER !+E C<EERA6E <9 !+E E9A EA6FE, FNKFAB-9-E= <R FNCER!A-NM@ - li0e to thin0 that the ost significant issue is whether the Eisiting 9orces Agree ent 4E9A5 violates #ec. $%, Art. LE--- of the Constitution. - shall therefore li it / opinion on this jugular issue. !he '(:& Constitution provides in #ec. $%, Art. LE---, viz> @After the e"piration in '((' of the Agree ent between the Republic of the Philippines and the Fnited #tates of A erica concerning Militar/ Bases, foreign ilitar/ bases, troops, or facilities shall not be allowed in the Philippines e"cept under a treat/ dul/ concurred in b/ the #enate and, when the Congress so re.uires, ratified b/ a ajorit/ of the votes cast b/ the people in a national referendu held for that purpose, and recogni1ed as a treat/ b/ the other contracting #tate.@ !his provision la/s down three constitutional re.uisites that ust be co plied with before foreign ilitar/ bases, troops, or facilities can be allowed in Philippine territor/, na el/> 4'5 their presence should be allowed b/ a treat/ dul/ concurred in b/ the Philippine #enate? 4$5 when Congress so re.uires,

such treat/ should be ratified b/ a ajorit/ of the votes cast b/ the 9ilipino people in a national referendu held for that purpose? and 425 07c3 tre!t5 03o7:# be reco2"1He# !0 ! tre!t5 b5 t3e ot3er co"tr!ct1"2 /!rt5. !o start with, respondents, with unrelenting resolve, clai that these constitutional re.uire ents are not applicable to the E9A. !he/ contend that the E9A, as its title i plies, conte plates erel/ te)/or!r5 visits of F.#. ilitar/ troops in Philippine territor/, and thus does not co e within the purview of #ec. $%, Art. LE--- of the Constitution. !he/ assert that this constitutional provision applies onl/ to the stationing or /er)!"e"t presence of foreign ilitar/ troops on Philippine soil since the word @troops@ is entioned along with @bases@ and @facilities@ which are per anent in nature. ' !his assertion would deserve serious attention if the te porar/ nature of these visits were indeed borne out b/ the provisions of the E9A. -f we turn, however, a heedful e/e on the provisions of the E9A as well as the interpretation accorded to it b/ the govern ent officials charged with its negotiation and i ple entation, the te porar/ nature of the visits would turn out to be a irage in a desert of vague provisions of the E9A. Neither the E9A nor the Mutual =efense !reat/ between the Republic of the Philippines and the Fnited #tates of A erica$ to which the E9A refers in its prea ble,2 provides the slightest suggestion on the duration of visits of F.#. forces in Philippine territor/. !he joint public hearings on the E9A conducted b/ the #enate Co ittee on 9oreign Relations and the #enate Co ittee on National =efense and #ecurit/ give us a 0e/hole to the ti e fra e involved in these visits. #ecretar/ of 9oreign Affairs =o ingo B. #ia1on, the PhilippineRs signator/ to the E9A, testified before the said co ittees that even before the signing of the E9A, Philippine and F.#. troops conducted joint ilitar/ e"ercises in Philippine territor/ for two da/s to four wee0s at the fre.uenc/ of ten to twelve e"ercises a /ear. !he @Bali0atan@, the largest co bined ilitar/ e"ercise involving about 2,;;; troops, lasted at an average of three to four wee0s and occurred once ever/ /ear or one and a half /ears. ) +e further declared that the E9A conte plates the sa e ti e line for visits of F.#. troops, but argued that even if these troops conduct ten to twelve e"ercises a /ear with each e"ercise lasting for two to three wee0s, their sta/ will not be uninterrupted, hence, not per anent.% #ecretar/ of National =efense <rlando #. Mercado further testified that the E9A will allow joint ilitar/ e"ercises between the Philippine and F.#. troops on a larger scale than those we had been underta0ing since '(().3 As the joint ilitar/ e"ercises will be conducted on a larger scale, it would be reasonable to project an escalation of the duration as well as fre.uenc/ of past joint ilitar/ e"ercises between Philippine and F.#. troops. !hese views on the te porar/ nature of visits of F.#. troops cannot stand for, clearl/, the E9A does not provide for a specific and li ited period of effectivit/. -t instead provides an o/e"-e"#e# ter) in Art. -L, viz? @. . . 4t5his agree ent shall re ain in force until the e"piration of ':; da/s fro the date on which either part/ gives the other part/ notice in writing that it desires to

ter inate the agree ent.@ No agic of se antics will blur the truth that the 8 $ co7:# be 1" 6orce 1"#e61"1te:5. !he following e"change between #enator A.uilino K. Pi entel, *r. and #ecretar/ #ia1on in the public hearings on the E9A is apropos to the issue> @#EN. P-MEN!EB. . . . -n other words, this 0ind of activities are not designed to last onl/ within one /ear, for e"a ple, the various visits, but can cover eternit/ until the treat/ is abrogatedM MR. #-AP<N. Gell, Hour +onor, this is an e"ercise for the protection of our national securit/, and until conditions are such that there is no longer a possible threat to our national securit/, then /ou will have to continue e"ercising, Hour +onor, because we cannot ta0e a chance on it. #EN. P-MEN!EB. #o, this will be te poraril/ per anent, or per anentl/ te porar/M MR. #-AP<N. Per anentl/ te porar/, Hour +onor.@& !he worthiest of words iths cannot alwa/s anipulate the eaning of words. Blac0Rs Baw =ictionar/ defines @te porar/@ as @that which is to last for a li ited ti e onl/, as distinguished fro that which is perpetual or indefinite in its duration@: and states that @per anent@ is @generall/ opposed to Qte porar/R but not alwa/s eaning perpetual.@ ( !he definitions of @te porar/@ and @per anent@ in BouvierRs Baw =ictionar/ are of si ilar i port> te porar/ is @that which is to last for a li ited ti e@ '; while per anent @does not alwa/s e brace the idea of absolute perpetuit/.@ '' B/ these definitions, even the contingenc/ that the Philippines a/ abrogate the E9A when there is no longer an/ threat to our national securit/ does not a0e the visits of F.#. troops te porar/, nor do short interruptions in or gaps between joint ilitar/ e"ercises carve the out fro the definition of @per anent@ as /er)!"e"ce #oe0 "ot "ece00!r1:5 co"te)/:!te !b0o:7te /er/et71t5. -t is against this tapestr/ woven fro the realities of the past and a vision of the future joint ilitar/ e"ercises that the Court ust draw a line between te porar/ visits and per anent sta/ of F.#. troops. T3e !b0e"ce 1" t3e 8 $ o6 t3e 0:123te0t 0722e0t1o" !0 to t3e #7r!t1o" o6 (101t0 o6 U.S. troo/0 1" P31:1//1"e terr1tor5, co7/:e# ?1t3 t3e :!c; o6 ! :1)1te# ter) o6 e66ect1(1t5 o6 t3e 8 $ 1t0e:6 F70t165 t3e 1"ter/ret!t1o" t3!t t3e 8 $ !::o?0 /er)!"e"t, "ot )ere:5 te)/or!r5, /re0e"ce o6 U.S. troo/0 o" P31:1//1"e 0o1:. 9ollowing #ecretar/ #ia1onRs testi on/, if the visits of F.#. troops could last for four wee0s at the ost and at the a"i u of twelve ti es a /ear for an indefinite nu ber of /ears, then b/ no stretch of logic can these visits be characteri1ed as te porar/ because in fact, the F.#. troops could be in Philippine territor/ 23% da/s a /ear for %; /ears AA longer than the duration of the '()& RPAF# Militar/ Bases Agree ent'$ which e"pired in '((' and which, without .uestion, conte plated per anent presence of F.#. bases, facilities, and troops. !o be sure, even for er #ecretar/ of *ustice, #erafin Cuevas, ad itted in the sa e public hearings that the subject atter of the E9A, i.e.' the visits and activities of F.#. troops in Philippine territor/, parta0es of a per anent character. +e declared with clarit/>

@MR. CFEEA#. . . . Gh/ we considered this as a treat/ is because the subject therein treated had so e character of per anence? and secondl/, there is a change insofar as so e of our laws are concerned.@ '2 !hus, regardless of whether #ec. $%, Art. LE--- of the Constitution conte plates per anent presence of foreign ilitar/ troops alone, or te porar/ presence as well, the E9A co es within its purview as it allows the per anent presence of F.#. troops on Philippine soil. Contrar/ to respondentsR allegation, the deter ination of the per anent nature of visits of F.#. troops under the E9A is an issue ripe for adjudication since #ec. $% of Art. LE--- spea0s of the anner b/ which F.#. troops a/ be allowed to enter Philippine territor/. Ge need not wait and see, therefore, whether the F.#. troops will actuall/ conduct ilitar/ e"ercises on Philippine soil on a per anent basis before adjudicating this issue. Ghat is at issue is ?3et3er t3e 8 $ !::o?0 07c3 /er)!"e"t /re0e"ce o6 U.S. troo/0 1" P31:1//1"e terr1tor5. !o deter ine co pliance of the E9A with the re.uire ents of #ec. $%, Art. LE--- of the Constitution, it is necessar/ to ascertain the intent of the fra ers of the Constitution as well as the will of the 9ilipino people who ratified the funda ental law. !his e"ercise would inevitabl/ ta0e us bac0 to the period in our histor/ when F.#. ilitar/ presence was entrenched in Philippine territor/ with the establish ent and operation of F.#. Militar/ Bases in several parts of the archipelago under the '()& R.P.AF.#. Militar/ Bases Agree ent. As articulated b/ Constitutional Co issioner Blas 9. <ple in the '(:3 Constitutional Co ission deliberations on this provision, the '()& RPAF# Militar/ Bases Agree ent was ratified b/ the Philippine #enate, but not b/ the Fnited #tates #enate. I" t3e e5e0 o6 P31:1//1"e :!?, t3ere6ore, t3e M1:1t!r5 ,!0e0 $2ree)e"t ?!0 ! tre!t5, b7t b5 t3e :!?0 o6 t3e U"1te# St!te0, 1t ?!0 ! )ere e4ec7t1(e !2ree)e"t .') !his as/ etr/ in the legal treat ent of the Militar/ Bases Agree ent b/ the two countries was believed to be a slur to our sovereignt/. !hus, in the debate a ong the Constitutional Co issioners, the un ista0able intention of the co ission e erged that this !"o)!:o70 !05))etr5 )70t "e(er be re/e!te#.'% !o correct this historical aberration, #ec. $%, Art. LE--- of the Constitution re.uires that the treat/ allowing the presence of foreign ilitar/ bases, troops, and facilities should also be @recogni1ed as a treat/ b/ the other contracting part/.@ -n plain language, reco2"1t1o" o6 t3e U"1te# St!te0 !0 t3e ot3er co"tr!ct1"2 /!rt5 o6 t3e 8 $ 03o7:# be b5 t3e U.S. Pre01#e"t ?1t3 t3e !#(1ce !"# co"0e"t o6 t3e U.S. Se"!te.'3 !he following e"changes anifest this intention> @MR. <PBE. Gill either of the two gentle en /ield to just one .uestion for clarificationM -s there an/thing in this for ulation, whether that of Co issioner Bernas or of Co issioner Ro ulo, that will prevent the Philippine govern ent fro abrogating the e"isting bases agree entM 9R. BERNA#. !o / understanding, none. MR. R<MFB<. - concur with Co issioner Bernas. MR. <PBE. - was ver/ 0een to put this .uestion because - had ta0en the position fro the beginning A and this is e bodied in a resolution filed b/

Co issioners Natividad, Maa bong and Regalado A that it is ver/ i portant that the govern ent of the Republic of the Philippines be in a position to ter inate or abrogate the bases agree ent as one of the options. . . . we have ac0nowledged starting at the co ittee level that t3e b!0e0 !2ree)e"t ?!0 r!t161e# b5 o7r Se"!te9 1t 10 ! tre!t5 7"#er P31:1//1"e :!?. ,7t !0 6!r !0 t3e $)er1c!"0 !re co"cer"e#, t3e Se"!te "e(er too; co2"1H!"ce o6 t310 !"# t3ere6ore, 1t 10 !" e4ec7t1(e !2ree)e"t. !hat creates a wholl/ unacceptable as/ etr/ between the two countries. !herefore, in / opinion, the right step to ta0e, if the govern ent of our countr/ will dee it in the national interest to ter inate this agree ent or even to renegotiate it, is that we ust begin with a clean slate? ?e 03o7:# "ot be b7r#e"e# b5 t3e 6:!?0 o6 t3e 1947 M1:1t!r5 ,!0e0 $2ree)e"t . . . MR. R<MFB<. Mada President, - thin0 the two phrases in the Bernas for ulation ta0e care of Co issioner <pleRs concerns. !he first sa/s @ELCEP! FN=ER !+E !ERM# <9 A !REA!H.@ !hat eans that if it is to be renegotiated, it ust be under the ter s of a new treat/. !he second is the concluding phrase which sa/s> @AN= REC<6N-PE= A# A !REA!H BH !+E <!+ER C<N!RAC!-N6 #!A!E.@ """ MR. #FAREP. -s the proposal prospective and not retroactive in characterM 9R. BERNA#. Hes, it is prospective because it does not touch the validit/ of the present agree ent. +owever, if a decision should be arrived at that the present agree ent is invalid, then even prior to '((', this beco es operative right awa/. MR. #FAREP. -n other words, we do not i press the previous agree ents with a valid character, neither do we sa/ that the/ are null and void ab initio as clai ed b/ an/ of us here. 9R. BERNA#. !he position - hold is that it is not the function of this Co ission to pass judg ent on the validit/ or invalidit/ of the subsisting agree ent. MR. #FAREP. . . . the proposal re.uires recognition of this treat/ b/ the other contracting nation. +ow would that recognition be e"pressed b/ that other contracting nationM !hat is 1" !ccor#!"ce ?1t3 t3e1r co"0t1t7t1o"!: or :e210:!t1(e /roce00, I !007)e. 9R. BERNA#. As Co issioner Ro ulo indicated, since this certainl/ would refer onl/ to the Fnited #tates, because it is onl/ the Fnited #tates that would have the possibilit/ of being allowed to have treaties here, then ?e ?o7:# 3!(e to reE71re t3!t t3e Se"!te o6 t3e U"1te# St!te0 co"c7r 1" t3e tre!t5 bec!70e 7"#er $)er1c!" co"0t1t7t1o"!: :!?, t3ere )70t be co"c7rre"ce o" t3e /!rt o6 t3e Se"!te o6 t3e U"1te# St!te0 to co"c:7#e tre!t1e0. """ 9R. BERNA#. Ghen - sa/ that the other contracting state ust recogni1e it as a treat/, b/ that - ean 1t )70t /er6or) !:: t3e !ct0 reE71re# 6or t3e !2ree)e"t to re!c3 t3e 0t!t70 o6 ! tre!t5 7"#er t3e1r F7r10#1ct1o" .@ 4e phasis supplied5'&

-n ascertaining the E9ARs co pliance with the constitutional re.uire ent that it be @recogni1ed as a treat/ b/ the other contracting state,@ it is cr/stal clear fro the above e"changes of the Constitutional Co issioners that t3e 5!r#0t1c; 03o7:# be U.S. co"0t1t7t1o"!: :!? . -t is therefore apropos to a0e a ore 1" #e/t3 0t7#5 of the F.#. PresidentRs power to enter into e"ecutive agree ents under F.#. constitutional law. #ec. $, Art. --, Clause $ of the F.#. Constitution provides that the President @shall have Power, b/ and with the Advice and Consent of the #enate, to a0e !reaties, provided two thirds of the #enators present concur.@ !he F.#. Constitution does not define @treaties@. Nevertheless, the accepted definition of a @treat/@ is that of @an agree ent between two or ore states or international organi1ations that is intended to be legall/ binding and is governed b/ international law.@': Although the Fnited #tates did not for all/ ratif/ the Eienna Convention on the Baw of !reaties, its definition of a treat/ has been applied b/ F.#. courts and the #tate =epart ent has stated that the Eienna Convention represents custo ar/ international law. '( !he Eienna Convention defines a treat/ as @an international agree ent concluded between #tates in written for and governed b/ international law.@ $; -t has been observed that this definition is broader than the sense in which @treat/@ is used in the F.#. Constitution. I" U.S. /r!ct1ce, ! Itre!t5I 10 o":5 o"e o6 6o7r t5/e0 o6 1"ter"!t1o"!: !2ree)e"t0, "!)e:5< $rt1c:e II tre!t1e0, e4ec7t1(e !2ree)e"t0 /7r07!"t to ! tre!t5, co"2re001o"!:-e4ec7t1(e !2ree)e"t0, !"# 0o:e e4ec7t1(e !2ree)e"t0.$' !he ter @e4ec7t1(e !2ree)e"t@ is used both collo.uiall/ and in scholarl/ and govern ental writings as a convenient catchAall to subsu e all international agree ents intended to bind the Fnited #tates and another govern ent, other than those which receive consent of twoAthirds of the F.#. #enate.$$ T3e U.S. Co"0t1t7t1o" #oe0 "ot e4/re00:5 co"6er !7t3or1t5 to )!;e t3e0e e4ec7t1(e !2ree)e"t0, hence the authorit/ to a0e the , their scope, and legal force have been the subject of a longAongoing debate. $2 !his, notwithstanding, e4ec7t1(e !2ree)e"t0 3!(e 2ro?" to be ! /r1)!r5 1"0tr7)e"t o6 6ore12" /o:1c5 1" t3e U"1te# St!te0. -n '&:(A':2(, the Fnited #tates concluded 3; treaties and onl/ $& e"ecutive agree ents. -n '(2;A'(2(, the Fnited #tates entered into ')$ treaties and ')) e"ecutive agree ents. -n '();A'()(, ''3 treaties and ('( e"ecutive agree ents were concluded b/ the Fnited #tates. 9ro '(:;A'(::, the Fnited #tates entered into '23 treaties and 2,;() e"ecutive agree ents. -n su , b/ '(::, there were '$,&&: e"ecutive agree ents as opposed to ',)&3 treaties, accounting for about (;N of the international agree ents concluded b/ the Fnited #tates.$) !he upsurge in the use of e"ecutive agree ents in the post Gorld Gar -period a/ be attributed to several factors. President 9ran0lin Roosevelt set a precedent for the ore recent presidents b/, for instance, co pleting the =estro/erAforABases deal of '(); with an e"ecutive agree ent. President +arr/ #. !ru an li0ewise concluded the Potsda Agree ent b/ e"ecutive agree ent. !he F.#. Presidents also co itted ilitar/ issions in

+onduras and El #alvador in the '(%;Rs? pledged securit/ to !ur0e/, -ran, and Pa0istan? ac.uired per ission fro the British to use the island of =iego 6arcia for ilitar/ purposes in the '(3;Rs? and established a ilitar/ ission in -ran in '(&), all b/ wa/ of e"ecutive agree ents. $% F.#. #upre e Court decisions affir ing the validit/ of e"ecutive agree ents have also contributed to the e"plosive growth in their usage. $3 Another factor that accelerated its use was the foreign polic/ cooperation between Congress and the e"ecutive as e"pressed in the postwar refrain that @politics ust end at the waterRs edge.@$& !he fourth factor is the e"pansion of e"ecutive institutions including foreign polic/ achiner/ and infor ation. $: !he fifth factor is the Cold Gar which put the Fnited #tates in a @constant state of e ergenc/@ which re.uired e"pedienc/ in decisions and actions regarding the use of force or diplo ac/. Bast but not the least, the nuclear weapons race and instantaneous global co unication ade centrali1ed foreign polic/ achiner/ under the F.#. President necessar/.$( T3e0e e4ec7t1(e !2ree)e"t0 ?31c3 3!(e 2ro?" to be t3e /r1)!r5 1"0tr7)e"t o6 U.S. 6ore12" /o:1c5 )!5 be c:!00161e# 1"to t3ree t5/e0, "!)e:5> 4'5 Tre!t5-!7t3or1He# e4ec7t1(e !2ree)e"t0, i.e., agree ents ade b/ the President pursuant to authorit/ conferred in a prior treat/? 2; 4$5 Co"2re001o"!:-e4ec7t1(e !2ree)e"t0, i.e., agree ents either 4a5 negotiated b/ the President with prior Congressional authori1ation or enact ent or 4b5 confir ed b/ both +ouses of Congress after the fact of negotiation?2' and A3B Pre01#e"t1!: or 0o:e e4ec7t1(e !2ree)e"t0, i.e., !2ree)e"t0 )!#e b5 t3e Pre01#e"t b!0e# o" 310 e4c:701(e /re01#e"t1!: /o?er0, 07c3 !0 t3e /o?er !0 co))!"#er-1"-c31e6 o6 t3e !r)e# 6orce0 /7r07!"t to ?31c3 3e co"#7ct0 )1:1t!r5 o/er!t1o"0 ?1t3 U.S. !::1e0, or 310 /o?er to rece1(e !)b!00!#or0 !"# reco2"1He 6ore12" 2o(er")e"t0.2$ T310 c:!00161c!t1o" 10 1)/ort!"t !0 t3e #166ere"t t5/e0 o6 e4ec7t1(e !2ree)e"t0 be!r #10t1"ct1o"0 1" ter)0 o6 co"0t1t7t1o"!: b!010, 07bFect )!tter, !"# :e2!: e66ect0 1" t3e #o)e0t1c !re"!. 9or instance, tre!t5!7t3or1He# e4ec7t1(e !2ree)e"t0 #o "ot /o0e co"0t1t7t1o"!: /rob:e)0 as the/ are generall/ accepted to have been preAapproved b/ the #enate when the #enate consented to the treat/ which authori1ed the e"ecutive to enter into e"ecutive agree ents? another view supporting its acceptance is that the #enate delegated to the President the authorit/ to a0e the e"ecutive agree ent.22 -n co parison, t3e co"0t1t7t1o"!:1t5 o6 co"2re001o"!:-e4ec7t1(e !2ree)e"t0 3!0 /ro(o;e# #eb!te !)o"2 :e2!: 0c3o:!r0. <ne view, espoused b/ 1"ter/ret1(10t0 such as Edwin Borchard, holds that all international agree ents ust be strictl/ in accordance with #ec. $, Art. -- of the F.#. Constitution, and thus congressionalAe"ecutive agree ents are constitutionall/ invalid. According to the , allowing congressionalAe"ecutive agree ents would enhance the power of the President as well as of the +ouse of Representatives, in utter violation of the intent of the fra ers of the F.#. Constitution.2) !he opposite school of

thought, led b/ M/er #. Mc=ougal and Asher Bans, holds that congressionalA e"ecutive agree ents and treaties are interchangeable, thus, such agree ents are constitutional. !hese "o"-1"ter/ret1(10t0 buttress their stance b/ leaning on the constitutional clause that prohibits #tates, without consent of Congress, fro @enter4ing5 into an/ Agree ent or Co pact with another #tate, or with a 9oreign Power.@ B/ a0ing reference to international agree ents other than treaties, these scholars argue that the fra ers of the Constitution intended international agree ents, other than treaties, to e"ist. !his school of thought generall/ opposes the @ echanical, filiopietistic theor/, 4which5 purports to regard the words of the Constitution as ti eless absolutes@2% and gives e phasis to the necessit/ and e"pedienc/ of congressionalAe"ecutive agree ents in odern foreign affairs. 23 9inall/, 0o:e e4ec7t1(e !2ree)e"t0 which account for a relativel/ s all percentage of e"ecutive agree ents are the )o0t co"0t1t7t1o"!::5 /rob:e)!t1c since the s/ste of chec0s and balances is inoperative when the President enters into an e"ecutive agree ent with neither the #enateRs or CongressR consent. !his last t/pe of e"ecutive agree ent draws authorit/ upon the PresidentRs enu erated powers under Article -- of the F.#. Constitution, such as the PresidentRs power as Co anderAinAChief of the F.#. ar / and nav/. 2& - respectfull/ sub it that, using these three t/pes of e"ecutive agree ents as bases for classification, the E9A would not fall under the categor/ of an e"ecutive agree ent ade b/ the president pursuant to authorit/ conferred in a prior treat/ because although the E9A a0es reference to the Mutual =efense !reat/ in its Prea ble,2: the Mutual =efense !reat/ itself does not confer authorit/ upon the F.#. President to enter into e"ecutive agree ents in i ple entation of the !reat/. -ssues have occasionall/ arisen about whether an e"ecutive agree ent was entered into pursuant to a treat/. !hese issues, however, involved ere treat/ interpretation. 2( -n 1ilson v. %irar , 2%) F# %$) 4'(%&5, the F.#. #upre e Court had occasion to interpret Art. --- of the #ecurit/ !reat/ Between the Fnited #tates of A erica and *apan which stated that, @4t5he conditions which shall govern the disposition of ar ed forces of the Fnited #tates of A erica in and about *apan shall be deter ined b/ ad inistrative agree ents between the two 6overn ents.@); Pursuant to this provision in the treat/, the e"ecutive entered into an ad inistrative agree ent covering, a ong other atters, jurisdiction of the Fnited #tates over offenses co itted in *apan b/ e bers of the F.#. ar ed forces. !he F.#. #upre e Court recogni1ed the validit/ of the Ad inistrative Agree ent as it was concluded b/ the President pursuant to the authorit/ conferred upon hi b/ Art. --- of the #ecurit/ !reat/ between *apan and the Fnited #tates to a0e ad inistrative agree ents between the two govern ents concerning @4t5he conditions which shall govern the disposition of ar ed forces of the Fnited #tates of A erica in and about *apan.@ Respondents boldl/ clai that the E9A is authori1ed b/ Art. -- of the RPAF# Mutual =efense !reat/ which provides that, @4i5n order ore effectivel/ to achieve the objective of this !reat/, the Parties separatel/ and jointl/ b/ selfA

help and utual aid will aintain and develop their individual and collective capacit/ to resist ar ed attac0.@)' !he alleged authori1ation is not as direct and une.uivocal as Art. --- of the #ecurit/ !reat/ Between the F.#. and *apan, hence it would be precarious to assu e that the E9A derives authori1ation fro the Mutual =efense !reat/. !he precariousness is heightened b/ the fact that when the F.#. #enate ratified the Agree ent Between the Parties to the North Atlantic !reat/ Regarding the #tatus of !heir 9orces)$ which was concluded pursuant to the North Atlantic !reat/ 4NA!<5,)2 the #enate included in its instru ent of ratification state ents on atters of jurisdiction over F.#. forces stationed abroad, a ong which was an ad onition that the Agree entRs provisions on cri inal jurisdiction which have si ilar features as the E9A, do not constitute a precedent for future agree ents. Ge can reasonabl/ gather fro the F.#. #enateRs state ents that cri inal jurisdiction over F.#. forces stationed abroad is a atter of #enate concern, and thus #enate authori1ation for the President to enter into agree ents touching upon such jurisdictional atters cannot so easil/ be assu ed. Ne1t3er #oe0 t3e 8 $ 6!:: 7"#er t3e c!te2or5 o6 ! Co"2re001o"!:E4ec7t1(e $2ree)e"t as it was not concluded b/ the F.#. President pursuant to Congressional authori1ation or enact ent nor has it been confir ed b/ the F.#. Congress. $t be0t, t3e 8 $ ?o7:# be )ore !;1" to ! 0o:e or /re01#e"t1!: e4ec7t1(e !2ree)e"t ?31c3 ?o7:# be (!:1# 16 co"c:7#e# o" t3e b!010 o6 t3e U.S. Pre01#e"tL0 e4c:701(e /o?er 7"#er t3e U.S. Co"0t1t7t1o" . Respondents argue that e"cept for the #tatus of 9orces Agree ent 4#<9A5 entered into pursuant to the NA!<, the Fnited #tates, b/ wa/ of e"ecutive agree ents, has entered into &: #tatus of 9orces Agree ents 4#<9A5 which e"tend privileges and i unities to F.#. forces stationed abroad, )) si ilar to the provisions of the E9A. Respondents have failed, however, to .ualif/ whether these e"ecutive agree ents are sole e"ecutive agree ents or were concluded pursuant to Congressional authori1ation or were authori1ed b/ treat/. !his detail is i portant in view of the above discussion on the sense of the #enate on cri inal jurisdiction over F.#. forces stationed abroad. -t will contribute to the elucidation of the legal status of the E9A under F.#. law if we co)/!re t3e :e2!: 6orce o6 0o:e e4ec7t1(e !2ree)e"t0 !"# o6 tre!t1e0. Fnder international law, treaties and e"ecutive agree ents e.uall/ bind the Fnited #tates.)% -f there is an/ distinction between treaties and e"ecutive agree ents, it ust be found in F.#. constitutional law. )3 T3e #10t1"ct1o"0, 16 !"5, bet?ee" t3e :e2!: 6orce o6 tre!t1e0 !"# e4ec7t1(e !2ree)e"t0 o" t3e #o)e0t1c /:!"e )!5 be tre!te# o" t3ree :e(e:0, "!)e:5, (10-!-(10< A1B 0t!te :!?9 A2B !ct0 o6 Co"2re00 !"# tre!t1e09 !"# A3B t3e U.S. Co"0t1t7t1o". !he #upre ac/ Clause of the F.#. Constitution provides> @!his Constitution, and the Baw of the Fnited #tates which shall be ade in pursuance thereof? and all !reaties ade, or which shall be ade, under the Authorit/ of the Fnited #tates, shall be the supre e Baw of the Band? and the

*udges in ever/ #tate shall be bound thereb/, an/ !hing in the Constitution or Baws of an/ #tate to the Contrar/ notwithstanding.@ )& -t is wellAsettled that this clause provides the constitutional basis for the 07/er1or1t5 o6 ! tre!t5 o(er 0t!te :!? . !hus, the Garsaw Convention to which the Fnited #tates is a signator/ pree pts the California law on airline liabilit/.): !he F.#. #upre e Court has ruled in un ista0able ter s that a treat/ enjo/s supre ac/ over state law, viz> @Plainl/, t3e e4ter"!: /o?er0 o6 t3e U"1te# St!te0 !re to be e4erc10e# ?1t3o7t re2!r# to 0t!te :!?0 or /o:1c1e0. T3e 07/re)!c5 o6 ! tre!t5 1" t310 re0/ect 3!0 bee" reco2"1He# 6ro) t3e be21""1"2. Mr. Madison, in the Eirginia Convention, said that if a treat/ does not supersede e"isting state laws, as far as the/ contravene its operation, the treat/ would be ineffective. @!o counterAact it b/ the supre ac/ of the state laws, would bring on the Fnion the just charge of national perfid/, and involve us in war.@ 2 Elliot, =ebates, %'%. . . . t310 r7:e 1" re0/ect o6 tre!t1e0 10 e0t!b:103e# b5 t3e e4/re00 :!"27!2e o6 c:. 2, $rt. 6, o6 t3e Co"0t1t7t1o". . . .I4e phasis supplied5)( -t is also generall/ conceded that 0o:e e4ec7t1(e !2ree)e"t0 !re 07/re)e o(er 0t!te :!? !"# /o:1c5. !wo cases decided b/ the F.#. #upre e Court support this view. !he first of these two cases, ,nite States v. Belmont'%; involved the Bitvinov Assign ent, a sole e"ecutive agree ent e"ecuted between the Fnited #tates and the #oviet 6overn ent. -n '(':, the #oviet govern ent, b/ laws and decrees, nationali1ed, a ong others, a Russian corporation, and appropriated its assets including a su of one/ deposited with Bel ont, a private ban0er doing business in New Hor0. !he su of one/ re ained Russian propert/ until '(22, at which ti e the #oviet govern ent released and assigned to the Fnited #tates all a ounts due the #oviet govern ent fro A erican nationals, including the deposit account of the Russian corporation with Bel ont. !he assign ent, better 0nown as the Bitvinov Assign ent, was effected b/ an e"change of diplo atic correspondence between the #oviet govern ent and the Fnited #tates to bring about a final settle ent of the clai s and counterAclai s between the #oviet govern ent and the Fnited #tates. Coincident with the assign ent, the F.#. President recogni1ed the #oviet 6overn ent and nor al diplo atic relations were established between the two govern ents.%' Fpon de and dul/ ade b/ the Fnited #tates, the e"ecutors of Bel ontRs will failed and refused to pa/ the su of one/ deposited b/ the Russian corporation with Bel ont. !he Fnited #tates thus filed a suit in a federal district court to recover the su of one/. !he court below held that the situs of the ban0 deposit was within the #tate of New Hor0 and not within #oviet territor/. !hus, the nationali1ation decree, if enforced, would a ount to an act of confiscation which was contrar/ to the controlling public polic/ of New Hor0. !he F.#. #upre e Court, however, held that "o 0t!te /o:1c5 co7:# /re(!1: !2!1"0t t3e L1t(1"o( $0012")e"t.%$ -t ruled as follows>

@!he !0012")e"t !"# t3e !2ree)e"t0 1" co""ect1o" t3ere?1t3 #1# "ot, as in the case of treaties, as that ter is used in the treat/ a0ing clause of the Constitution 4#ec. $, Art. $5, reE71re t3e !#(1ce !"# co"0e"t o6 t3e Se"!te. A treat/ signifies @a co pact ade between two or ore independent nations with a view to the public welfare.@ B. Alt an 8 Co. v. Fnited #tates, $$) F.#. %:2, 3;;, %3 B. ed. :(), (';, 2$ #. Ct. %(2. But !" 1"ter"!t1o"!: co)/!ct, !0 t310 ?!0, 10 "ot !:?!50 ! tre!t5 ?31c3 reE71re0 t3e /!rt1c1/!t1o" o6 t3e Se"!te. !here are an/ such co pacts, of which a protocol, a odus vivendi, a postal convention, and agree ents li0e that now under consideration are illustrations.@ 4e phasis supplied5%2 <n the supre ac/ of e"ecutive agree ents over state law, it ruled as follows> @Plainl/, t3e e4ter"!: /o?er0 o6 t3e U"1te# St!te0 !re to be e4erc10e# ?1t3o7t re2!r# to 0t!te :!?0 or /o:1c1e0. !he supre ac/ of a treat/ in this respect has been recogni1ed fro the beginning. Mr. Madison, in the Eirginia Convention, said that if a treat/ does not supersede e"isting state laws, as far as the/ contravene its operation, the treat/ would be ineffective. @!o counterAact it b/ the supre ac/ of the state laws, would bring on the Fnion the just charge of national perfid/, and involve us in war.@ 2 Elliot, =ebates, %'%. . . And while this rule in respect of treaties is established b/ the e"press language of cl. $, Art. 3, of the Constitution, t3e 0!)e r7:e ?o7:# re07:t 1" t3e c!0e o6 !:: 1"ter"!t1o"!: co)/!ct0 !"# !2ree)e"t0 6ro) t3e (er5 6!ct t3!t co)/:ete /o?er o(er 1"ter"!t1o"!: !66!1r0 10 1" t3e "!t1o"!: 2o(er")e"t !"# 10 "ot !"# c!""ot be 07bFecte# to !"5 c7rt!1:)e"t or 1"ter6ere"ce o" t3e /!rt o6 t3e 0e(er!: 0t!te0.I 4e phasis supplied5%) !he other case, ,nite States v. Pin.,%% li0ewise involved the Bitvinov Assign ent. !he F.#. #upre e Court here reiterated its ruling in the !elmont case and held that the Bitvinov Assign ent was an international co pact or agree ent having si ilar dignit/ as a treat/ under the supre ac/ clause of the F.#. Constitution.%3 Ghile adherents of sole e"ecutive agree ents usuall/ point to these two cases as bearing judicial i pri atur of sole e"ecutive agree ents, the validit/ of sole e"ecutive agree ents see s to have been initiall/ dealt with b/ the F.#. #upre e Court in '(22 in 'onaco v. 'ississippi wherein Chief *ustice +ughes stated that, @4t5he National 6overn ent, b/ virtue of its control of our foreign relations is entitled to e plo/ the resources of diplo atic negotiations and to effect such an international settle ent as a/ be found to be appropriate, through treaty, agreement o/ ar)itration, or other$ise.@%& #ubse.uent to the Belmont and Pin. cases, the F.#. #upre e Court once again upheld the validit/ of a sole e"ecutive agree ent in Dames & 'oore v. 2egan.%: !his case involved the Algiers Accord, an e"ecutive agree ent negotiated and concluded b/ President Carter and confir ed b/ President Reagan to resolve the -ran +ostage Crisis in '(:'. !hat agree ent provided, a ong others, that the Fnited #tates and -ran agreed to cancel certain

clai s between the and to establish a special tribunal to resolve other clai s, including those b/ F.#. nationals against -ran. !he Fnited #tates also agreed to close its courts to those clai s, as well as to suits b/ F.#. citi1ens against the govern ent of -ran for recover/ of da ages arising fro the +ostage Crisis. Although the agree ent was entered into b/ the President pursuant to Congressional authori1ation, the Court found that the PresidentRs action with regard to clai s was not so authori1ed. Nevertheless, the F.#. #upre e Court, noting the power of presidents in foreign affairs which includes the power to settle clai s, as well as Congressional ac.uiescence to such practice, upheld the validit/ of the Algiers Accord. Fpon the other hand, those opposed to sole e"ecutive agree ents argue that the pronounce ents of the Court in the Belmont and Pin. cases ean that sole e"ecutive agree ents override state legislation onl/ when founded upon the PresidentRs constitutional power to recogni1e foreign govern ents.%( -31:e tre!t1e0 !"# 0o:e e4ec7t1(e !2ree)e"t0 3!(e t3e 0!)e :e2!: e66ect o" 0t!te :!?, 0o:e e4ec7t1(e !2ree)e"t0 /!:e 1" co)/!r10o" to tre!t1e0 ?3e" /1tte# !2!1"0t /r1or 1"co"010te"t !ct0 o6 Co"2re00 . !he F.#. #upre e Court has long ago declared that the Constitution andates that a treat/ and an act of legislation are both @supre e law of the land.@ As such, no supre e efficac/ is given to one over the other. -f the two relate to the sa e subject atter and are inconsistent, the one later in date will prevail, provided the treat/ is selfAe"ecuting,3; i.e.' @whenever it operates of itself without aid of legislation.@3' -n 0he Chero.ee 0o)acco 3Bou inot v. ,nite States4,3$ the F.#. #upre e Court also held that where there is repugnance between a treat/ and an Act of Congress, @4a5 treat/ a/ supersede a prior Act of Congress . . . and an Act of Congress a/ supersede a prior treat/. . . .@32 #ettled is the rule, therefore, that a treat/ supersedes an earlier repugnant Act of Congress, and an Act of Congress supersedes an earlier contradictor/ treat/.3) As a corollar/, a treat/, being placed on the sa e footing as an act of legislation, 3% can repeal or odif/ a prior inconsistent treat/. -n the case of sole e"ecutive agree ents, co entators have been in general agree ent that unli0e treaties, 0o:e e4ec7t1(e !2ree)e"t0 c!""ot /re(!1: o(er /r1or 1"co"010te"t 6e#er!: :e210:!t1o". Even proponents of sole e"ecutive agree ents ad it that while a selfAe"ecuting treat/ can supersede a prior inconsistent statute, it is ver/ doubtful whether a sole e"ecutive agree ent, in the absence of appropriate legislation, will be given si ilar effect.33 Gallace McClure, a leading proponent of the interchangeabilit/ of treaties and e"ecutive agree ents, opined that it would be contrar/ to @the entire tenor of the Constitution@ for sole e"ecutive agree ents to supersede federal law.3& !he Restate ent 4!hird5 of the 9oreign Relations Baw of the Fnited #tates postulates that a sole e"ecutive agree ent could prevail at least over state law, and 4onl/5 /o001b:5 federal law without i ple enting legislation.3: M/er #. Mc=ougal and Asher Bans who are staunch advocates of e"ecutive agree ents also concede that sole

e"ecutive agree ents will not ordinaril/ be valid if repugnant to e"isting legislation.3( -n ,nite States v. %uy 1. Capps, +nc.,&; a leading lower court decision discussing the issue of supre ac/ of e"ecutive agree ents over federal legislation, the 9ourth Circuit held that, @the e"ecutive agree ent was void because it was not authori1ed b/ Congress and contravened provisions of a statute dealing with the ver/ atter to which it related...@ &' !he F.#. #upre e Court itself has @inti ated that the President ight act in e"ternal affairs without congressional authorit/, but not that he ight act contrar/ to an Act of Congress.@&$ !he reason for this is that the F.#. PresidentRs power to enter into international agree ents derives fro his position as Chief E"ecutive. ,5 Sec. 7, $rt. 1 o6 t3e U.S. Co"0t1t7t1o", t3e /re01#e"t #oe0 "ot 3!(e /o?er to re/e!: e410t1"2 6e#er!: :!?0. Co"0eE7e"t:5, 3e c!""ot )!;e !" 1"#1rect re/e!: b5 )e!"0 o6 ! 0o:e e4ec7t1(e !2ree)e"t .&2 <n the other side of the coin, it is argued, that when the F.#. President enters into a sole e"ecutive agree ent pursuant to his e"clusive presidential authorit/ in the field of foreign relations, such agree ent a/ prevail over prior inconsistent federal legislation.&) -n this situation, the doctrine of separation of powers a/ per it the F.#. President to disregard the prior inconsistent Act of Congress as an @unconstitutional invasion of his power.@ &% +owever, aside fro lac0ing fir legal support, this view has to contend with the proble of deter ining which powers are e"clusivel/ e"ecutive and which powers overlap with the powers of Congress.&3 Again, although it is doubtful whether sole e"ecutive agree ents can supersede prior inconsistent federal legislation, proponents of sole e"ecutive agree ents interpret the Pin. case to ean that sole e"ecutive agree ents are on e.ual footing with a treat/, having been accorded the status of @law of the land@ under the supre ac/ clause and the Bitvinov Assign ent having been recogni1ed to have si ilar dignit/ as a treat/.&& As such, it is opined that a sole e"ecutive agree ent a/ supersede a prior inconsistent treat/. !reaties of the Fnited #tates have in fact been ter inated on several occasions b/ the President on his own authorit/.&: President Roosevelt ter inated at least two treaties under his independent constitutional powers> the e"tradition treat/ with 6reece, in '(22, and the !reat/ of Co erce and Navigation with *apan, in '(2(.&( !hat sole e"ecutive agree ents a/ repeal or ter inate a treat/ is i pliedl/ recogni1ed in Charlton v. (elly:; as follows> @!he e"ecutive depart ent having thus elected to waive an/ right to free itself fro the obligation Cof the treat/D, it is the plain dut/ of the court to recogni1e the obligation.:' $0 !2!1"0t t3e U.S. Co"0t1t7t1o", tre!t1e0 !"# 0o:e e4ec7t1(e !2ree)e"t0 !re 1" eE7!: 6oot1"2 !0 t3e5 !re 07bFect to t3e 0!)e :1)1t!t1o"0. As earl/ as ':&;, the F.#. #upre e Court declared that, @a treat/ cannot change the Constitution or be held valid if it be in violation of that instru ent.@:$ -n 'issouri v. Hollan ':2 it was held that treaties ust not violate the Constitution.:) !he F.#. #upre e Court also discussed the constitutionall/ i plied li itations on the treat/ a0ing power in 2ei v.

Covert':% where *ustice Blac0 stated that @4n5o agree ent with a foreign nation can confer power on the Congress, or an/ other branch of 6overn ent, which is free fro the restraints of the Constitution.@ :3 +e concluded that the F.#. Constitution provides li its to the acts of the president, the joint action of the president and the #enate, and conse.uentl/ li its the treat/ a0ing power.:& !here is no dispute that the constitutional li itations relating to treaties also appl/ to sole e"ecutive agree ents. -t is wellAsettled that the due process clause of the 9ifth A end ent and other substantive provisions of the F.#. Constitution constitute li itations on both treaties and e"ecutive agree ents.:: Nu erous decisions have also held that both treaties and sole e"ecutive agree ents cannot contravene private rights protected b/ the F.#. Constitution.:( I" co"c:701o", after a acro view of the landscape of F.#. foreign relations visAaAvis F.#. constitutional law, with special attention on the legal status of sole e"ecutive agree ents, I re0/ect67::5 07b)1t t3!t t3e Co7rt ?1:: be 0t!"#1"2 o" 7"0t!b:e 2ro7"# 16 1t /:!ce0 ! 0o:e e4ec7t1(e !2ree)e"t :1;e t3e 8 $ o" t3e 0!)e co"0t1t7t1o"!: /:!te!7 !0 ! tre!t5. >7e0t1o"0 re)!1" !"# t3e #eb!te co"t1"7e0 o" t3e co"0t1t7t1o"!: b!010 !0 ?e:: !0 t3e :e2!: e66ect0 o6 0o:e e4ec7t1(e !2ree)e"t0 7"#er U.S. :!? . !he observation of Bouis +en0in, a noted international and F.#. constitutional law scholar, captures the senti ents of the fra ers of the Philippine Constitution and of the 9ilipinos in crafting #ec. $%, Art. LE--- of the '(:& Constitution AA @4o5ften the treat/ process will be used at the insistence of other parties to an agree ent because the/ believe that a treat/ has greater Qdignit/R than an e"ecutive agree ent, because its constitutional effectiveness is be/ond doubt, because a treat/ will Qco itR the #enate and the people of the Fnited #tates and a0e its subse.uent abrogation or violation less li0el/.@ (; -1t3 t3e c:o7# o6 7"cert!1"t5 0t1:: 3!"21"2 o" t3e e4!ct :e2!: 6orce o6 0o:e e4ec7t1(e !2ree)e"t0 7"#er U.S. co"0t1t7t1o"!: :!?, t310 Co7rt )70t 0tr1;e ! b:o? 6or t3e 0o(ere12"t5 o6 o7r co7"tr5 b5 #r!?1"2 ! br123t :1"e bet?ee" t3e #12"1t5 !"# 0t!t70 o6 ! tre!t5 1" co"tr!0t ?1t3 ! 0o:e e4ec7t1(e !2ree)e"t. Ho?e(er ?e )!5 ?103 1t, t3e 8 $, !0 ! 0o:e e4ec7t1(e !2ree)e"t, c!""ot c:1)b to t3e 0!)e :o6t5 3e123t t3!t t3e #12"1t5 o6 ! tre!t5 c!" re!c3. Co"0eE7e"t:5, 1t 6!::0 03ort o6 t3e reE71re)e"t 0et b5 Sec. 2', $rt. C8III o6 t3e 19&7 Co"0t1t7t1o" t3!t t3e !2ree)e"t !::o?1"2 t3e /re0e"ce o6 6ore12" )1:1t!r5 troo/0 o" P31:1//1"e 0o1: )70t be Ireco2"1He# !0 ! tre!t5 b5 t3e ot3er co"tr!ct1"2 0t!te.I - vote to grant the petitions. Republic of the Philippines SUPREME COURT Manila EN BANC $/r1: 11, 2**2

G.R. No. 1'144'

$RTHUR %. LIM !"# P$ULINO R. ERS$N%O, petitioners, vs. HONOR$,LE ECECUTI8E SECRET$R+ !0 !:ter e2o o6 HER ECCELLENCE+ GLORI$ M$C$P$G$L-$RRO+O, !"# HONOR$,LE $NGELO RE+ES 1" 310 c!/!c1t5 !0 Secret!r5 o6 N!t1o"!: %e6e"0e, respondents. AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA S$NL$@$S !"# P$RTI%O NG M$NGG$G$-$, petitionersAintervenors, vs. GLORI$ M$C$P$G$-$RRO+O, $L,ERTO ROMULO, $NGELO RE+ES, respondents. %E LEON, .R., J.: !his case involves a petition for certiorari and prohibition as well as a petitionAinAintervention, pra/ing that respondents be restrained fro proceeding with the soAcalled @Bali0atan ;$A'@ and that after due notice and hearing, that judg ent be rendered issuing a per anent writ of injunction andIor prohibition against the deplo/ ent of F.#. troops in Basilan and Mindanao for being illegal and in violation of the Constitution. !he facts are as follows> Beginning *anuar/ of this /ear $;;$, personnel fro the ar ed forces of the Fnited #tates of A erica started arriving in Mindanao to ta0e part, in conjunction with the Philippine ilitar/, in @Bali0atan ;$A'.@ !hese soAcalled @Bali0atan@ e"ercises are the largest co bined training operations involving 9ilipino and A erican troops. -n theor/, the/ are a si ulation of joint ilitar/ aneuvers pursuant to the Mutual =efense !reat/,' a bilateral defense agree ent entered into b/ the Philippines and the Fnited #tates in '(%'. Prior to the /ear $;;$, the last @Bali0atan@ was held in '((%. !his was due to the paucit/ of an/ for al agree ent relative to the treat ent of Fnited #tates personnel visiting the Philippines. -n the eanti e, the respective govern ents of the two countries agreed to hold joint e"ercises on a reduced scale. !he lac0 of consensus was eventuall/ cured when the two nations concluded the Eisiting 9orces Agree ent 4E 9A5 in '(((. !he entr/ of A erican troops into Philippine soil is pro"i atel/ rooted in the international antiAterroris ca paign declared b/ President 6eorge G. Bush in reaction to the tragic events that occurred on #epte ber '', $;;'. <n that da/, three 425 co ercial aircrafts were hijac0ed, flown and s ashed into the twin towers of the Gorld !rade Center in New Hor0 Cit/ and the Pentagon building in Gashington, =.C. b/ terrorists with alleged lin0s to the alAKaeda 4@the Base@5, a Musli e"tre ist organi1ation headed b/ the infa ous <sa a bin Baden. <f no co parable historical parallels, these acts caused billions of dollars worth of destruction of propert/ and incalculable loss of hundreds of lives. <n 9ebruar/ ', $;;$, petitioners Arthur =. Bi and Paulino P. Ersando filed this petition for certiorari and prohibition, attac0ing the constitutionalit/ of the joint e"ercise.$ !he/ were joined subse.uentl/ b/ #ANBA,A# and PAR!-=<

N6 MAN66A6AGA, both part/A-ist organi1ations, who filed a petitionAinA intervention on 9ebruar/ '', $;;$. Bi and Ersando filed suit in their capacities as citi1ens, law/ers and ta"pa/ers. #ANBA,A# and PAR!-=<, on the other hand, aver that certain e bers of their organi1ation are residents of Pa boanga and #ulu, and hence will be directl/ affected b/ the operations being conducted in Mindanao. !he/ li0ewise pra/ for a rela"ation on the rules relative to locus standi citing the unprecedented i portance of the issue involved. <n 9ebruar/ &' $;;$ the #enate conducted a hearing on the @Bali0atan@ e"ercise wherein EiceAPresident !eofisto !. 6uingona, *r., who is concurrentl/ #ecretar/ of 9oreign. Affairs, presented the =raft !er s of Reference 4!<R5.2 9ive da/s later, he approved the !<R, which we .uote hereunder> -. P<B-CH BEEEB '. !he E"ercise shall be consistent with the Philippine Constitution and all its activities shall be in consonance with the laws of the land and the provisions of the RPAF# Eisiting 9orces Agree ent 4E9A5. $. !he conduct of this training E"ercise is in accordance with pertinent Fnited Nations resolutions against global terroris as understood b/ the respective parties. 2. No per anent F# basing and support facilities shall be established. !e porar/ structures such as those for troop billeting, classroo instruction and essing a/ be set up for use b/ RP and F# 9orces during the E"ercise. ). !he E"ercise shall be i ple ented jointl/ b/ RP and F# E"ercise CoA =irectors under the authorit/ of the Chief of #taff, A9P. -n no instance will F# 9orces operate independentl/ during field training e"ercises 49!L5. A9P and F# Fnit Co anders will retain co and over their respective forces under the overall authorit/ of the E"ercise CoA=irectors. RP and F# participants shall co pl/ with operational instructions of the A9P during the 9!L. %. !he e"ercise shall be conducted and co pleted within a period of not ore than si" onths, with the projected participation of 33; F# personnel and 2,:;; RP 9orces. !he Chief of #taff, A9P shall direct the E"ercise CoA =irectors to wind up and ter inate the E"ercise and other activities within the si" onth E"ercise period. 3. !he E"ercise is a utual counterAterroris advising, assisting and training E"ercise relative to Philippine efforts against the A#6, and will be conducted on the -sland of Basilan. 9urther advising, assisting and training e"ercises shall be conducted in Malaguta/ and the Pa boanga area. Related activities in Cebu will be for support of the E"ercise. &. <nl/ '3; F# 9orces organi1ed in '$A an #pecial 9orces !ea s shall be deplo/ed with A9P field, co anders. !he F# tea s shall re ain at the Battalion +ead.uarters and, when approved, Co pan/ !actical head.uarters where the/ can observe and assess the perfor ance of the A9P 9orces. :. F# e"ercise participants shall not engage in co bat, without prejudice to their right of selfAdefense.

(. !hese ter s of Reference are for purposes of this E"ercise onl/ and do not create additional legal obligations between the F# 6overn ent and the Republic of the Philippines. --. ELERC-#E BEEEB '. !RA-N-N6 a. !he E"ercise shall involve the conduct of utual ilitar/ assisting, advising and training of RP and F# 9orces with the pri ar/ objective of enhancing the operational capabilities of both forces to co bat terroris . b. At no ti e shall F# 9orces operate independentl/ within RP territor/. c. 9light plans of all aircraft involved in the e"ercise will co pl/ with the local air traffic regulations. $. A=M-N-#!RA!-<N 8 B<6-#!-C# a. RP and F# participants shall be given a countr/ and area briefing at the start of the E"ercise. !his briefing shall ac.uaint F# 9orces on the culture and sensitivities of the 9ilipinos and the provisions of the E9 A. !he briefing shall also pro ote the full cooperation on the part of the RP and F# participants for the successful conduct of the E"ercise. b. RP and F# participating forces a/ share, in accordance with their respective laws and regulations, in the use of their resources, e.uip ent and other assets. !he/ will use their respective logistics channels. c. Medical evaluation shall be jointl/ planned and e"ecuted utili1ing RP and F# assets and resources. d. Begal liaison officers fro each respective part/ shall be appointed b/ the E"ercise =irectors. 2. PFBB-C A99A-R# a. Co bined RPAF# -nfor ation Bureaus shall be established at the E"ercise =irectorate in Pa boanga Cit/ and at 6+K, A9P in Ca p Aguinaldo, Kue1on Cit/. b. Bocal edia relations will be the concern of the A9P and all public affairs guidelines shall be jointl/ developed b/ RP and F# 9orces. c. #ocioAEcono ic Assistance Projects shall be planned and e"ecuted jointl/ b/ RP and F# 9orces in accordance with their respective laws and regulations, and in consultation with co unit/ and local govern ent officials. Conte poraneousl/, Assistant #ecretar/ for A erican Affairs Minerva *ean A. 9alcon and Fnited #tates harge d@ )ffaires Robert 9itts signed the Agreed Minutes of the discussion between the EiceAPresident and Assistant #ecretar/ ,ell/.) Petitioners Bi and Ersando present the following argu ents> !+E P+-B-PP-NE# AN= !+E FN-!E= #!A!E# #-6NE= !+E MF!FAB =E9EN#E !REA!H 4M=!5 in '(%' !< PR<E-=E MF!FAB M-B-!ARH A##-#! ANCE -N ACC<R=ANCE G-!+ !+E JC<N#!-!F!-<NAB PR<CE##EA#J <9 EAC+ C<FN!RH <NBH -N !+E CA#E <9 AN ARME= A!!AC, BH AN EL!ERNAB A66RE##<R, MEAN-N6 A !+-R= C<FN!RH A6A-N#! <NE <9 !+EM.

BH N< #!RE!C+ <9 !+E -MA6-NA !-<N CAN -! BE #A-= !+A! !+E ABF #AHHA9 BAN=-!# -N BA#-BAN C<N#!-!F!E AN EL!ERNAB ARME= 9<RCE !+A! +A# #FB*EC! !+E P+-B-PP-NE# !< AN ARME= EL!ERNAB A!!AC, !< GARRAN! F.#. M-B-!ARH A##-#!ANCE FN=ER !+E M=! <9 '(%'. -NE-!+ER =<E# !+E E9A <9 '((( AF!+<R-PE AMER-CAN #<B=-ER# !< EN6A6E -N C<MBA! <PERA!-<N# -N P+-B-PP-NE !ERR-!<RH, N<! EEEN !< 9-RE BAC, @-9 9-RE= FP<N@. #ubstantiall/ the sa e points are advanced b/ petitioners #ANBA,A# and PAR!-=<. -n his Co ent, the #olicitor 6eneral points to infir ities in the petitions regarding, inter alia' Bi and ErsandoJs standing to file suit, the pre aturit/ of the action, as well as the i propriet/ of availing of certiorari to ascertain a .uestion of fact. Anent their locus standi' the #olicitor 6eneral argues that first' the/ a/ not file suit in their capacities as, ta"pa/ers inas uch as it has not been shown that @Bali0atan ;$A' @ involves the e"ercise of CongressJ ta"ing or spending powers. Second' their being law/ers does not invest the with sufficient personalit/ to initiate the case, citing our ruling in +ntegrate Bar o/ the Philippines v. 5amora.% !hird, Bi and Ersando have failed to de onstrate the re.uisite showing of direct personal injur/. Ge agree. -t is also contended that the petitioners are indulging in speculation. !he #olicitor 6eneral is of the view that since the !er s of Reference are clear as to the e"tent and duration of @Bali0atan ;$A',@ the issues raised b/ petitioners are pre ature, as the/ are based onl/ on a fear of future violation of the !er s of Reference. Even petitionersJ resort to a special civil action for certiorari is assailed on the ground that the writ a/ onl/ issue on the basis of established facts. Apart fro these threshold issues, the #olicitor 6eneral clai s that there is actuall/ no .uestion of constitutionalit/ involved. !he true object of the instant suit, it is said, is to obtain an interpretation of the E 9A. !he #olicitor 6eneral as0s that we accord due deference to the e"ecutive deter ination that @Bali0atan ;$A'@ is covered b/ the E9A, considering the PresidentJs onopol/ in the field of foreign relations and her role as co anderAinAchief of the Philippine ar ed forces. 6iven the pri ordial i portance of the issue involved, it will suffice to reiterate our view on this point in a related case> Notwithstanding, in view of the para ount i portance and the constitutional significance of the issues raised in the petitions, this Court, in the e"ercise of its sound discretion, brushes aside the procedural barrier and ta0es cogni1ance of the petitions, as we have done in the early !mergency Po$ers Cases, where we had occasion to rule> J" " " ordinar/ citi1ens and ta"pa/ers were allowed to .uestion the constitutionalit/ of several e"ecutive orders issued b/ President Kuirino although the/ were involving onl/ an indirect and general interest shared in co on with the public. !he Court dis issed the objection that the/ were

not proper parties and ruled that Mtr!"0ce"#e"t!: 1)/ort!"ce to t3e /7b:1c o6 t3e0e c!0e0 #e)!"#0 t3!t t3e5 be 0ett:e# /ro)/t:5 !"# #e61"1te:5, br7031"2 !01#e, 16 ?e )70t, tec3"1c!:1t1e0 o6 /roce#7re. J Ge have since then applied the e"ception in an/ other cases. Ccitation o ittedD !his principle was reiterated in the subse.uent cases of Go"H!:e0 (0. COMELEC, %!H! (0. S1"20o", !"# ,!0co (0. P31:, $)70e)e"t !"# G!)1"2 Cor/or!t1o", where we e phaticall/ held> Considering however the i portance to the public of the case at bar, and in 0eeping with the CourtJs dut/, under the '(:& Constitution, to deter ine whether or not the other branches of the govern ent have 0ept the selves within the li its of the Constitution and the laws that the/ have not abused the discretion given to the , the Court has brushed aside technicalities of procedure and has ta0en cogni1ance of this petition. """J Again, in the ore recent case of @1:o0b!5!" (0. G71"2o"!, .r., this Court ruled that in cases of transcendental i portance, t3e Co7rt )!5 re:!4 t3e 0t!"#1"2 reE71re)e"t0 !"# !::o? ! 071t to /ro0/er e(e" ?3ere t3ere 10 "o #1rect 1"F7r5 to t3e /!rt5 c:!1)1"2 t3e r123t o6 F7#1c1!: re(1e? . Although courts generall/ avoid having to decide a constitutional .uestion based on the doctrine of separation of powers, which enjoins upon the depart ent of the govern ent a beco ing respect for each otherJs act, this Court nevertheless resolves to ta0e cogni1ance of the instant petition. 3 +ence, we treat with si ilar dispatch the general objection to the supposed pre aturit/ of the action. At an/ rate, petitionersJ concerns on the lac0 of an/ specific regulation on the latitude of activit/ F# personnel a/ underta0e and the duration of their sta/ has been addressed in the !er s of Reference. !he holding of @Bali0atan ;$A'@ ust be studied in the fra ewor0 of the treat/ antecedents to which the Philippines bound itself. !he first of these is the Mutual =efense !reat/ 4M=!, for brevit/5. !he M=! has been described as the @core@ of the defense relationship between the Philippines and its traditional all/, the Fnited #tates. -ts ai is to enhance the strategic and technological capabilities of our ar ed forces through joint training with its A erican counterparts? the @Bali0atan@ is the largest such training e"ercise directl/ supporting the M=!Js objectives. -t is this treat/ to which the E 9A adverts and the obligations thereunder which it see0s to reaffir . !he lapse of the F#APhilippine Bases Agree ent in '(($ and the decision not to renew it created a vacuu in F#APhilippine defense relations, that is, until it was replaced b/ the Eisiting 9orces Agree ent. -t should be recalled that on <ctober ';, $;;;, b/ a vote of eleven to three, this Court upheld the validit/ of the E9A.& !he E 9A provides the @regulator/ echanis @ b/ which @Fnited #tates ilitar/ and civilian personnel C a/ visitD te poraril/ in the Philippines in connection with activities approved b/ the Philippine 6overn ent.@ -t contains provisions relative to entr/ and departure of A erican personnel, driving and vehicle registration, cri inal jurisdiction, clai s, i portation and e"portation, ove ent of vessels and aircraft, as well as the duration of the agree ent and its ter ination. -t is the E9A which gives continued relevance to the M=! despite the passage of /ears. -ts

pri ar/ goal is to facilitate the pro otion of opti al cooperation between A erican and Philippine ilitar/ forces in the event of an attac0 b/ a co on foe. !he first .uestion that should be addressed is whether @Bali0atan ;$A'@ is covered b/ the Eisiting 9orces Agree ent. !o resolve this, it is necessar/ to refer to the E 9A itself> Not uch help can be had therefro , unfortunatel/, since the ter inolog/ e plo/ed is itself the source of the proble . !he E9A per its Fnited #tates personnel to engage, on an i per anent basis, in @activities,@ the e"act eaning of which was left undefined. !he e"pression is a biguous, per itting a wide scope of underta0ings subject onl/ to the approval of the Philippine govern ent.: !he sole encu brance placed on its definition is couched in the negative, in that Fnited #tates personnel ust @abstain fro an/ activit/ inconsistent with the spirit of this agreement' and in particular' from any political activity.A( All other activities, in other words, are fair ga e. Ge are not left co pletel/ unaided, however. !he Eienna Convention on the Baw of !reaties, which contains provisos governing interpretations of international agree ents, state> #EC!-<N 2. -N!ERPRE!A!-<N <9 !REA!-E# )rticle F4 General rule of interpretation '. A treat/ shall be interpreted in good faith ill accordance with the ordinar/ eaning to be given to the tenus of the treat/ in their conte"t and in the light of its object and purpose. $. !he conte"t for the purpose of the interpretation of a treat/ shall co prise, in addition to the te"t, including its prea ble and anne"es> 4a5 an/ agree ent relating to the treat/ which was ade between all the parties in conne"ion with the conclusion of the treat/? 4b5 an/ instru ent which was ade b/ one or ore parties in conne"ion with the conclusion of the treat/ and accepted b/ the other parties as an instru ent related to the part/ . 2. !here shall be ta0en into account, together with the conte"t> 4a5 an/ subse.uent agree ent between the parties regarding the interpretation of the treat/ or the application of its provisions? 4b5 an/ subse.uent practice in the application of the treat/ which establishes the agree ent of the parties regarding its interpretation? 4c5 an/ relevant rules of international law applicable in the relations between the parties. ). A special eaning shall be given to a ter if it is established that the parties so intended. )rticle 2$ Supplementary means of interpretation Recourse a/ be had to supple entar/ eans of interpretation, including the preparator/ wor0 of the treat/ and the circu stances of its conclusion, in order to confir the eaning resulting fro the application of article 2', or to deter ine the eaning when the interpretation according to article 2' >

4a5 leaves the eaning a biguous or obscure? or 4b5 leads to a result which is anifestl/ absurd unreasonable. -t is clear fro the foregoing that the cardinal rule of interpretation ust involve an e"a ination of the te"t, which is presu ed to verbali1e the partiesJ intentions. !he Convention li0ewise dictates what a/ be used as aids to deduce the eaning of ter s, which it refers to as the conte"t of the treat/, as well as other ele ents a/ be ta0en into account alongside the aforesaid conte"t. As e"plained b/ a writer on the Convention , CtDhe Co issionJs proposals 4which were adopted virtuall/ without change b/ the conference and are now reflected in Articles 2' and 2$ of the Convention5 were clearl/ based on the view that the te"t of a treat/ ust be presu ed to be the authentic e"pression of the intentions of the parties? the Co ission accordingl/ ca e down fir l/ in favour of the view that Jthe starting point of interpretation is the elucidation of the eaning of the te"t, not an investigation ab initio into the intentions of the partiesJ. !his is not to sa/ that the travau=preparatoires of a treat/ , or the circu stances of its conclusion, are relegated to a subordinate, and wholl/ ineffective, role. As Professor Briggs points out, no rigid te poral prohibition on resort to travau= preparatoires of a treat/ was intended b/ the use of the phrase Jsupple entar/ eans of interpretationJ in what is now Article 2$ of the Eienna Convention. !he distinction between the general rule of interpretation and the supple entar/ eans of interpretation is intended rather to ensure that the supple entar/ eans do not constitute an alternative, autono ous ethod of interpretation divorced fro the general rule. '; !he !er s of Reference rightl/ fall within the conte"t of the E9A. After studied reflection, it appeared farfetched that the a biguit/ surrounding the eaning of the word .Jactivities@ arose fro accident. -n our view, it was deliberatel/ ade that wa/ to give both parties a certain leewa/ in negotiation. -n this anner, visiting F# forces a/ sojourn in Philippine territor/ for purposes other than ilitar/. As conceived, the joint e"ercises a/ include training on new techni.ues of patrol and surveillance to protect the nationJs arine resources, sea searchAandArescue operations to assist vessels in distress, disaster relief operations, civic action projects such as the building of school houses, edical and hu anitarian issions, and the li0e. Fnder these auspices, the E9A gives legiti ac/ to the current Bali0atan e"ercises. -t is onl/ logical to assu e that .JBali0atan ;$A',@ a @ utual antiA terroris advising, assisting and training e"ercise,@ falls under the u brella of sanctioned or allowable activities in the conte"t of the agree ent. Both the histor/ and intent of the Mutual =efense !reat/ and the E 9A support the conclusion that combat-related activities Aas opposed to combat itself Asuch as the one subject of the instant petition, are indeed authori1ed. !hat is not the end of the atter, though. 6ranted that @Bali0atan ;$A'@ is per itted under the ter s of the E9A, what a/ F# forces legiti atel/ do in furtherance of their ai to provide advice, assistance and training in the global effort against terroris M =ifferentl/ phrased, a/ A erican troops actuall/ engage in co bat in Philippine territor/M !he !er s of Reference are

e"plicit enough. Paragraph : of section - stipulates that F# e"ercise participants a/ not engage in co)b!t -e*cept in sel/6 e/ense.A Ge wr/l/ note that this senti ent is ad irable in the abstract but difficult in i ple entation. !he target of @Bali0atan ;$A' -@ the Abu #a//af, cannot reasonabl/ be e"pected to sit idl/ while the battle is brought to their ver/ doorstep. !he/ cannot be e"pected to pic0 and choose their targets for the/ will not have the lu"ur/ of doing so. Ge state this point if onl/ to signif/ our awareness that the parties straddle a fine line, observing the honored legal a"i A/emo potest facere per alium quod non potest facere per directum.A'' !he indirect violation is actuall/ petitionersJ worr/, that in realit/, @Bali0atan ;$A' @ is actuall/ a war principall/ conducted b/ the Fnited #tates govern ent, and that the provision on selfAdefense serves onl/ as ca ouflage to conceal the true nature of the e"ercise. A clear pronounce ent on this atter thereb/ beco es crucial. -n our considered opinion, neither the M=! nor the E 9A allow foreign troops to engage in an offensive war on Philippine territor/. Ge bear in ind the salutar/ proscription stated in the Charter of the Fnited Nations, to wit> Article $ !he <rgani1ation and its Me bers, in pursuit of the Purposes stated in Article ', shall act in accordance with the following Principles. """ """ """ """ ). All Me bers shall refrain in their international relations fro the threat or use of force against the territorial integrit/ or political independence of an/ state, or in an/ other anner inconsistent with the Purposes of the Fnited Nations. """ """ """ """ -n the sa e anner, both the Mutual =efense !reat/ and the Eisiting 9orces Agree ent, as in all other treaties and international agree ents to which the Philippines is a part/, ust be read in the conte"t of the '(:& Constitution. -n particular, the Mutual =efense !reat/ was concluded wa/ before the present Charter, though it nevertheless re ains in effect as a valid source of international obligation. !he present Constitution contains 0e/ provisions useful in deter ining the e"tent to which foreign ilitar/ troops are allowed in Philippine territor/. !hus, in the =eclaration of Principles and #tate Policies, it is provided that> """ """ """ """ #EC. $. !he Philippines renounces war as an instru ent of national polic/, adopts the generall/ accepted principles of international law as part of the law of the land and adheres to the polic/ of peace, e.ualit/, justice, freedo , cooperation, and a it/ with all nations. """ """ """ """ #EC. &. !he #tate shall pursue an independent foreign polic/. -n its relations with other states the para ount consideration shall be national sovereignt/, territorial integrit/, national interest, and the right to selfA deter ination. #EC. :. !he Philippines, consistent with the national interest, adopts and pursues a polic/ of freedo fro nuclear weapons in the countr/.

""" """ """ """ !he Constitution also regulates the foreign relations powers of the Chief E"ecutive when it provides that @CnDo treat/ or international agree ent shall be valid and effective unless concurred in b/ at least twoAthirds of all the e bers of the #enate.@'$ Even ore pointedl/, the !ransitor/ Provisions state> #ec. $%. After the e"piration in '((' of the Agree ent between the Republic of the Philippines and the Fnited #tates of A erica concerning Militar/ Bases, foreign ilitar/ bases, troops or facilities shall not be allowed in the Philippines e"cept under a treat/ dul/ concurred in b/ the #enate and, when the Congress so re.uires, ratified b/ a ajorit/ of the votes cast b/ the people in a national referendu held for that purpose, and recogni1ed as a treat/ b/ the other contracting state. !he afore.uoted provisions betra/ a ar0ed antipath/ towards foreign ilitar/ presence in the countr/, or of foreign influence in general. +ence, foreign troops are allowed entr/ into the Philippines onl/ b/ wa/ of direct e"ception. Conflict arises then between the funda ental law and our obligations arising fro international agree ents. A rather recent for ulation of the relation of international law vis-a-vis unicipal law was e"pressed in Philip 'orris, +nc. v. Court o6 Appeals''2 to wit> """ Githal, the fact that international law has been ade part of the law of the land does not b/ an/ eans i pl/ the pri ac/ of international law over national law in the unicipal sphere. Fnder the doctrine of incorporation as applied in ost countries, rules of international law are given a standing e.ual, not superior, to national legislation. !his is not e"actl/ helpful in solving the proble at hand since in tr/ing to find a iddle ground, it favors neither one law nor the other, which onl/ leaves the hapless see0er with an unsolved dile a. <ther ore traditional approaches a/ offer valuable insights. 9ro the perspective of public international law, a treat/ is favored over unicipal law pursuant to the principle of pacta sunt servanda. +ence, @CeDver/ treat/ in force is binding upon the parties to it and ust be perfor ed b/ the in good faith.@') 9urther, a part/ to a treat/ is not allowed to @invo0e the provisions of its internal law as justification for its failure to perfor a treat/.@'% <ur Constitution espouses the opposing view. Gitness our jurisdiction as stated in section % of Article E---> !he #upre e Court shall have the following powers> """ """ """ """ 4$5 Review, revise, reverse, odif/, or affir on appeal or certiorari' as the law or the Rules of Court a/ provide, final judg ents and order of lower courts in> 4A5 All cases in which the constitutionality or validity of any treaty' international or e=ecutive agreement' law, presidential decree, procla ation, order, instruction, ordinance, or regulation is in .uestion.

""" """ """ """ -n +chong v. Hernan e#,'3 we ruled that the provisions of a treat/ are alwa/s subject to .ualification or a end ent b/ a subse.uent law, or that it is subject to the police power of the #tate. -n %on#ales v. Hechanova''& """ As regards the .uestion whether an international agree ent a/ be invalidated b/ our courts, suffice it to sa/ that the Constitution of the Philippines has clearl/ settled it in the affir ative, b/ providing, in #ection $ of Article E--- thereof, that the #upre e Court a/ not be deprived @of its jurisdiction to review, revise, reverse, odif/, or affir on appeal, certiorari, or writ of error as the law or the rules of court a/ provide, final judg ents and decrees of inferior courts in A4 -5 All cases in which the constitutionality or validity of an/ treaty' law, ordinance, or e"ecutive order or regulation is in .uestion.@ -n other words, our Constitution authori1es the nullification of a treat/, not onl/ when it conflicts with the funda ental law, but' also' when it runs counter to an act of ongress. !he foregoing pre ises leave us no doubt that F# forces are prohibited I fro engaging in an offensive war on Philippine territor/. Het a nagging .uestion re ains> are A erican troops activel/ engaged in co bat alongside 9ilipino soldiers under the guise of an alleged training and assistance e"erciseM Contrar/ to what petitioners would have us do, we cannot ta0e judicial notice of the events transpiring down south,': as reported fro the saturation coverage of the edia. As a rule, we do not ta0e cogni1ance of newspaper or electronic reports per se' not because of an/ issue as to their truth, accurac/, or i partialit/, but for the si ple reason that facts ust be established in accordance with the rules of evidence. As a result, we cannot accept, in the absence of concrete proof, petitionersJ allegation that the Arro/o govern ent is engaged in @doublespea0@ in tr/ing to pass off as a ere training e"ercise an offensive effort b/ foreign troops on native soil. !he petitions invite us to speculate on what is reall/ happening in Mindanao, to issue - a0e factual findings on atters well be/ond our i ediate perception, and this we are understandabl/ loath to do. -t is all too apparent that the deter ination thereof involves basicall/ a question of fact. <n this point, we ust concur with the #olicitor 6eneral that the present subject atter is not a fit topic for a special civil action for certiorari. Ge have held in too an/ instances that .uestions of fact are not entertained in such a re ed/. !he sole object of the writ is to correct errors of jurisdiction or grave abuse of discretion> !he phrase @grave abuse of discretion@ has a precise eaning in law, denoting abuse of discretion @too patent and gross as to a ount to an evasion of a positive dut/, or a virtual refusal to perfor the dut/ enjoined or act in conte plation of law, or where the power is e"ercised in an arbitrar/ and despotic anner b/ reason of passion and personal hostilit/.@'( -n this connection, it will not be a iss to add that the #upre e Court is not a trier of facts.$; Fnder the e"panded concept of judicial power under the Constitution, courts are charged with the dut/ @to deter ine whether or not there has been a

grave abuse of discretion a ounting to lac0 or e"cess of jurisdiction on the part of an/ branch or instru entalit/ of the govern ent.@ $' 9ro the facts obtaining, we find that the holding of @Bali0atan ;$A'@ joint ilitar/ e"ercise has not intruded into that penu bra of error that would otherwise call for correction on our part. -n other words, respondents in the case at bar have not co itted grave abuse of discretion a ounting to lac0 or e"cess of jurisdiction. -HERE ORE, the petition and the petitionAinAintervention are hereb/ %ISMISSE% without prejudice to the filing of a new petition sufficient in for and substance in the proper Regional !rial Court. SO OR%ERE%. !ellosillo' 5elo' 5endoza' Guisumbing' arpio' ((.' concur. >apunan' dissenting opinion. Hnares-Santiago' join the dissenting opinion. #anganiban' separate opinion. ,avide.' (r.' .(.' #uno' Sandoval-Gutierrez' join the ain and separate opinion of *. Panganiban. %ISSENTING OPINION @$PUN$N, J.: <n #epte ber '', $;;', terrorists, with the use of hijac0ed co ercial airplanes, attac0ed the Gorld !rade Center Building in New Hor0 Cit/ and the Pentagon Building in Gashington =.C., F.#.A., 0illing thousands of people. 9ollowing the attac0s, the Fnited #tates declared a @global war@ against terroris and started to bo b and attac0 Afghanistan to topple the !aliban regi e and capture <sa a bin Baden, the suspected aster ind of the #epte ber '', $;;' attac0s. Gith the Northern Alliance ainl/ providing the ground forces, the !aliban regi e fell in a few onths, without <sa a bin Baden having been captured. +e is believed either to be still in Afghanistan or has crossed the border into Pa0istan. -n line with President 6loria MacapagalAArro/oJs pledge to render allAout aid to the F# in its ca paign against @global terroris ,@ an arrange ent for a. joint ilitar/ e"ercises 0nown as @RPAF# !ali"atan ;$A' E"ercises@ was entered into between the F# and Philippine authorities, allegedl/ within the a bit of the Eisiting 9orces Agree ent 4E 9A5 with the ain objective of enhancing the operational capabilities of the countries in co bating terroris . !he F# govern ent has identified the Abu #a//af 6roup 4A#65 in the Philippines as a terrorist group for ing part of a @terrorist underground@ lin0ed to the alAKaeda networ0 of <sa a bin Baden. Beginning *anuar/ $', $;;$, A erican troops started arriving in Mindanao as part of the total contingent force of 33; soldiers, '3; to be stationed in Basilan, $;; to $%; in Pa boanga, and $%; in the Air 9orce base in Mactan, Cebu. !he salient features of the joint ilitar/ e"ercises as e bodied in the !er s of Reference 4!<R5 are su ari1ed as follows> 4a5 !he e"ercise shall be consistent with the Constitution and other Philippine laws, particularl/ the RPAF# Eisiting 9orces Agree ent?

4b5 No per anent F# bases and support facilities will be established? 4c5 !he e"ercise shall be i ple ented jointl/ b/ RP and F# E"ercise CoA =irectors under the direction of the Chief of #taff of the A9P and in no instance will F# 9orces operate independentl/ during field training e"ercises? 4d5 -t shall be conducted and co pleted within a period of not ore than si" onths, with the projected participation of 33; F# personnel and 2,:;; RP forces, and the Chief of #taff of the A9P shall direct the E"ercise CoA =irectors to wind up the E"ercise and other activities and the withdrawal of F# forces within the si"A onth period? 4e5 !he e"ercise @is a utual counterAterroris advising, assisting and training e"ercise@ relative to Philippine efforts against the Abu #a//af 6roup and will be conducted on the -sland of Basilan. 9urther advising, assisting and training e"ercises shall be conducted in Malaguta/ and the Pa boanga area. Related activities in Cebu will also be conducted in support of the E"ercise? 4f5 <nl/ '3; F# troops organi1ed in '$A an #pecial 9orces !ea s shall be deplo/ed in Basilan, with the F# !ea re aining at the Co pan/ !actical +ead.uarters where the/ can observe and assess the perfor ance of the troops? and 4g5 F# e"ercise participants shall not engage in co bat, without prejudice to their right to selfAdefense. Petitioners now see0 the issuance of a writ of prohibitionIinjunction to prevent F# troops fro participating in areas of ar ed conflict on the ground that such is in gross violation of the Constitution. !he/ argue that> !+E P+-B-PP-NE# AN= !+E FN-!E= #!A!E# #-6NE= !+E MF!FAB =E9EN#E !REA!H 4M=!5 -N '(%' !< PR<E-=E MF!FAB M-B-!ARH A##-#!ANCE -N ACC<R=ANCE G-!+ !+E C<N#!-!F!-<NAB PR<CE##E#@ <9 EAC+ C<FN!RH <NBH -N !+E CA#E <9 AN ARME= A!!AC, BH AN EL!ERNAB A66RE##<R, MEAN-N6 A !+-R= C<FN!RH A6A-N#! <NE <9 !+EM. BH N< #!RE!C+ <9 !+E -MA6-NA!-<N CAN -! BE #A-= !+A! !+E ABF #AHHA9 BAN=-!# -N BA#-BAN C<N#!-!F!E AN EL!ERNAB ARME= 9<RCE !+A! +A# #FB*EC!E= !+E P+-B-PP-NE# !< AN ARME= EL!ERNAB A!!AC, !< GARRAN! F# M-B-!ARH A##-#!ANCE FN=ER !+E M=! <9 '(%'. -NE-!+ER =<E# !+E E9A <9 '((( AF!+<R-PE= AMER-CAN #<B=-ER# !< EN6A6E -N C<MBA! <PERA!-<N# -N P+-B-PP-NE !ERR-!<RH, N<! EEEN !< 9-RE BAC, @-9 9-RE= FP<N.@ #anla0as and Partido ng Manggagawa as intervenors see0 the sa e relief as petitioners, stressing that the Constitution prohibits the presence of foreign ilitar/ troops or facilities in the countr/, e"cept under a treat/ dul/ concurred in b/ the #enate and recogni1ed as a treat/ b/ the other state. !he petition is i pressed with erit.

T3ere 10 "o tre!t5 !::o?1"2 US troo/0 to e"2!2e 1" co)b!t. !he Constitution prohibits foreign ilitar/ bases, troops or facilities unless a treat/ per its the sa e. #ection $%, Article LE--- of the Constitution provides> After the e"piration in '((' of the Agree ent between the Republic of the Philippines and the Fnited #tates of A erica concerning Militar/ Bases, foreign ilitar/ bases, troops, or facilities shall not be allowed in the Philippines e"cept under a treat/ dul/ concurred in b/ the #enate and, when the Congress so re.uires, ratified b/ a ajorit/ of the votes cast b/ the people in a national referendu held for that purpose, and recogni1ed as a treat/ b/ the other contracting #tate. !here is no treat/ allowing foreign ilitar/ troops to engage in co bat with internal ele ents. !he Mutual =efense !reat/ 4M=!5 between the Republic of the Philippines and the Fnited #tates of A erica does not authori1e F# ilitar/ troops to engage the A#6 in co bat. !he M=! conte plates onl/ an @e4ter"!: ar ed attac0.@ Article --- of the treat/ cannot be ore e"plicit> !he Parties, through their 9oreign Ministers or their deputies, will consult together fro ti e to ti e regarding the i ple entation of this treat/ and whenever in the opinion of either of the the territorial integrit/, political independence or securit/ of either of the Parties is threatened b/ e4ter"!: ar ed attac0 in the Pacific. CE phasis supplied.D #upporting this conclusion is the third paragraph of the M=! prea ble where the parties e"press their desire to declare publicl/ and for all/ their sense of unit/ and their co on deter ination to defend the selves against e"ternal ar ed attac0, so that no potential aggressor could be under the illusion that either of the stands alone in the Pacific area. CE phasis supplied.D T3ere 10 "o e(1#e"ce t3!t t3e $SG 10 co""ecte# ?1t3 I2:ob!: terror10).I !here is no e pirical basis for the allegation that the @terroris @ which the A#6 is accused of constitutes an @e"ternal ar ed attac0.@ !he A#6 has co itted ostl/ cri es of 0idnapping for ranso and urder A co on cri es that are punishable under the penal code but which, b/ the selves, hardl/ constitute @terroris .@ Parentheticall/, there is lac0 of agree ent as to the precise definition of terroris . -ndeed, one anJs terrorist a/ be another anJs freedo fighter. !he divergent interests of #tates have caused contradicting definitions and conflicting perceptions of what constitutes @terrorist acts@ that a0e it difficult for the Fnited Nations to reach a decision on the definition of terroris . Because of this @definitional predica ent,@ the /o?er o6 #e61"1t1o" is easil/ e"ercised b/ a superpower which, b/ reason of its unchallenged hege on/, could draw lists of what it considers terrorist organi1ations or states sponsoring terroris based on criteria deter ined b/ the hege onJs own strategic interests.'

-n an/ case, ties between the A#6 and soAcalled international @terrorist@ organi1ations have not been established.$ Even assu ing that such ties do e"ist, it does not necessaril/ a0e the @attac0s@ b/ the A#6 @e"ternal@ as to fall within the a bit of the M=!. ,!:1;!t!" e4erc10e0 !re "ot co(ere# b5 8 $ !0 US troo/0 !re "ot !::o?e# to e"2!2e 1" co)b!t. Neither is the present situation covered b/ the soAcalled Eisiting 9orces Agree ent 4E9A5. !he E 9A was concluded after the re oval of the F# ilitar/ bases, troops and facilities in the after ath of the ter ination of the treat/ allowing the presence of A erican ilitar/ bases in the Philippines. !he E9 A is nothing ore than what its for al na e suggests> an @Agree ent between the 6overn ent of the Republic of the Philippines and the 6overn ent of the Fnited #tates of A erica regarding the Tre!t)e"t of Fnited #tates Ar ed 9orces Eisiting the Philippines. @!he last paragraph of the E 9A prea ble also @recogni1CesD the desirabilit/ of defining t3e tre!t)e"t of Fnited #tates personnel visiting the Republic of the Philippines.@ !he E9A was entered into to enable A erican troops to enter the countr/ again after the re oval of the A erican ilitar/ bases so the/ can participate in ilitar/ e"ercises under the auspices of the Mutual =efense !reat/. -t provided the legal fra ewor0 under which A erican soldiers will be treated while the/ re ain in the countr/. !he ilitar/ e"ercises conte plated in the E9A are those in accordance with the National =efense Plan 4N=P5 of the Philippines. !he N=P was previousl/ approved and adopted b/ the Mutual =efense Board, jointl/ chaired b/ the Chief of #taff of the Ar ed 9orces of the Philippines and the Co ander in the Pacific of the Fnited #tates Ar ed 9orces. !he N=P is directed against potential foreign aggressors, not designed to deal with internal disorders. !his was what the #enate understood when it ratified the E9A in #enate Resolution No. ':, which reads> !he E9A shall serve as the legal echanis to pro ote defense cooperation between the two countries, enhancing the preparedness of the Ar ed 9orces of the Philippines against e"ternal threats? and enabling the Philippines to bolster the stabilit/ of the Pacific Area in a shared effort with its neighbor states. !he E9AJs a biguous reference to @activities@2 is not a loophole that legiti i1es the presence of F# troops in Basilan. -n the treat/Js prea ble, the parties @reaffir their obligations under the Mutual =efense !reat/ of August 2;, '(%'.@ As the prea ble co prises part of a treat/Js conte"t for the purpose of interpretation, the E9A ust be read in light of the provisions of the M=!. As stated earlier, the M=! conte plates onl/ an e"ternal ar ed attac0? conse.uentl/, the @activities@ referred to in the E 9A cannot thus be interpreted to include ar ed confrontation with or suppression of the A#6 e bers who appear to be ere local bandits, ainl/ engaged in

0idnapping for ranso and urder Aeven arson, e"tortion and illegal possession of firear s, all of which are co on offenses under our cri inal laws. !hese activities involve purel/ police atters and do estic law and order proble s? the/ are hardl/ @e"ternal@ attac0s within the conte plation of the M=! and the E 9A. !o construe the vagueness of the ter @activities@ in the E 9A as authori1ing A erican troops to confront the A#6 in ar ed conflict would, therefore, contravene both spirit and letter of the M=!. Respondents aintain that the A erican troops are not here to fight the A#6 but erel/ to engage in @training e"ercises.@ !o alla/ fears that the A erican troops are here to engage the A#6 in co bat, the !<R professes that the present e"ercise @is a utual counterAterroris advising, assisting and training E"ercise relative to Philippine efforts against the A#6, and will be conducted on the -sland of Basilan.@ !he !<R further provides that the @e"ercise@ shall involve the conduct of @ utual ilitar/ !0010t1"2, !#(101"2 and tr!1"1"2 of RP and F# 9orces with the pri ar/ objective of enhancing the operational capabilities of both forces to co bat terroris .@ !hese avowals of assistance, advice, and training, however, fl/ in the face of the presence of F# troops in the heart of the A#6Js stronghold. #uch presence is an act of provocation that a0es an ar ed confrontation between F# soldiers and A#6 e bers inevitable. !he F# troops in Basilan have been described as being Io" ! 0:1//er5 0:o/e bet?ee" tr!1"1"2 !"# 6123t1"2.I !heir ver/ presence a0es the a target for terrorist and for the local Mosle populace, which has been bitterl/ antiAA erican since colonial ti es. !hough the/ are called advisers, the A ericans win be going on ris0/ issions deep into the jungle. A for er 6reen Beret who is an anal/st of GashingtonJs Center for #trategies and Budgetar/ Assess ents notes that @when troops go out on patrol, the/ co e as close as the/ can to direct co bat.@) @Advising@ or @training@ 9ilipino soldiers hardl/ describes the involve ent of F# troops 4unacco panied b/ 9ilipino counterparts5 on board co bat helicopters which land on the battlegrounds to evacuate 9ilipino soldiers wounded while fighting the A#6. 9or e"a ple, on April %,$;;$, F# troops on board a Pave +aw0 helicopter flew to the scene of a night battle on Basilan -sland to evacuate a wounded 9ilipino soldier. !his was reportedl/ the third ti e in recent wee0s that chopperAborne F# forces had evacuated 9ilipino soldiers fighting the A#6.% -3!te(er e7/3e)10)0 )!5 be co"F7re# to c3!r!cter1He $)er1c!" 1"(o:(e)e"t, t3e RP-US ,!:1;!t!" *2-1 E4erc10e0 !re !1)e# !t 0ee;1"2 o7t t3e $SG !"# e4ter)1"!t1"2 1t. !he prohibition contained in the !<R against F# e"ercise participants fro engaging in co bat but @without prejudice to their right to selfA defense@ provides little consolation. Co bat uddles the distinction between aggression and selfAdefense. F# troops can alwa/s sa/ the/ did not fire first and no one would dare sa/ otherwise. !he A#6 has been so de oni1ed that no one cares how it is e"orcised. #ignificantl/, the !<R does not define the

para eters of @selfAdefense.@ Militaril/, a preAe ptive stri0e could be interpreted as an act of self Adefense. Ghat - fear ost is that the countr/ would be dragged into a ore devastating and protracted conflict as a result of the continued presence of F# ilitar/ troops in Basilan. A single A#6 sniperJs bullet felling an A erican soldier could be used as an e"cuse for assive retaliation b/ F# ground and air forces to attac0 and bo b out ever/ suspected A#6 lair, all in the na e of @self Adefense. Apprehensions over possible catastrophic conse.uence of F# ilitar/ involve ent in our countr/ are not without historical basis. !he F# e"perience in Eietna , for e"a ple, began as an e"pression of support for the establish ent of #outh Eietna under Bao =aiJs leadership in '()( to. counteract the support given b/ co unist China and the #oviet Fnion to North Eietna . -n '(%;, the F# began providing ilitar/ assistance in fighting North Eietna b/ sending ilitar/ advisors as well as F# tan0s, planes, artiller/ and other supplies. !he F# beca e ore involved in the Eietna conflict when in '(3', it sent the first );; 6reen Beret @#pecial Advisors@ to #outh Eietna to train the latterJs soldiers in ethods of counterAinsurgenc/ against the Eiet Cong guerillas. It c:!r161e# t3!t t3e $)er1c!" 0o:#1er0 ?ere "ot 1" 81et"!) to e"2!2e 1" co)b!t.3 +owever, due to the increased success of the Eiet Cong guerillas, assisted b/ the Northern Eietna ese Ar /, the F# eventuall/ began to run covert operations using #outh Eietna ese co andos in speed boats to harass radar sites along the coastline of North Eietna . -n '(3), after an alleged torpedo attac0 b/ North Eietna of the A erican destro/ers F##. Maddo" and F##. C. !urner *o/ in the 6ulf of !on0in, the F# decided to retaliate b/ conducting bo bing raids in North Eietna .& !he Eietna Gar resulted in the death of two illion Eietna ese and injuries to three illion others. !welve illion Eietna ese beca e refugees and thousands of children beca e orphaned.: Millions of acres of Eietna Js forests were defoliated b/ a herbicide called Agent <range, dropped fro the air. Millions of ines and une"ploded bo bs and artiller/ shells are still scattered in the countr/side, posing constant danger to life and li b. US )1:1t!r( /re0e"ce 10 e00e"t1!::5 1"#e61"1te !"# o/e"-e"#e#. $:re!#5, t3ere !re 1"#1c!t1o"0 t3!t t3e US 1"te"#0 to ree0t!b:103 ! )ore e"#7r1"2 /re0e"ce 1" t3e co7"tr5. =efense #ecretar/ Angelo Re/es was .uoted to have declared on March $;, $;;$ that $,33% F# soldiers will ta0e part in the RPAF# !ali"atan ;$A$ starting ne"t onth in Central Bu1on and that '; ore ilitar/ e"ercises will be held this /ear. ( +ow an/ ore war e"ercises are needed for @training and advising@ 9ilipino soldiersM Ghat conditions ust be satisfied for the Fnited #tates to consider the @war against terroris @ in Mindanao ter inatedM !he endless fre.uenc/ and successive repetition of the war e"ercises covering the two largest islands of the countr/ a ount, in a real sense, to the per anent presence of foreign

ilitar/ troops here sans a treat/ in blatant violation of the constitutional proscription. F# President 6eorge w. Bush in his *anuar/ 2;, $;;$ speech declared> !he en and wo en of our ar edAforces have delivered a essage to ever/ ene / of the Fnited #tates. Hou shall not escape the justice of this nation. " " ". #hould an/ countr/ be ti id in the face of terror, if the/ do not act, A erica will. President Arro/o, in a speech at the Regis +otel in New Hor0 Cit/ on 9ebruar/ ', $;;$, pledged her @full support@ to F# President 6eorge G. Bush in the fight against international terroris . #he declared that @the Philippines will continue to be a partner of the Fnited #tates in the war to end terroris @ and that @4t5he antiAterroris partnership will continue after the whole world is secure against the terrorist.@'; -n his speech on the Ghite +ouse Baws on March '', $;;$, President Bush e"horted> A erica encourages and e"pects govern ents ever/where to help re ove the terrorist parasites that threaten their own countries and the peace of the world. " " ". Ge are helping right now in the Philippines, where terrorist with lin0s to Al Kaeda are tr/ing to sei1e the southern part of the countr/ to establish a ilitar/ regi e. !he/ are oppressing local peoples, and have 0idnapped both A erican and 9ilipino citi1ens.@'' !he #hilippine ,aily <nquirer in its March '&, $;;$ issue carried the following report> !he Fnited #tates wants to bring in ore troops for the controversial Bali0atan ;$A' training e"ercise ai ed at wiping out the Abu #a//af bandits in Basilan. !he F# ilitar/ last wee0 began calling the warAga es @<peration Enduring 9reedo APhilippines,@ giving credence to clai s that the countr/ has beco e, after Afghanistan, the second front of the F#Aled global war on terroris . Today@s issue of April ', $;;$ reporting as its source New Hor0 News #ervice, .uoted a senior Bush ad inistration official as sa/ing> Ge are loo0ing at prolonged training. " " ". -t ta0es ore to build up capabilities than sa/ing here are so e night vision goggles. !he declarations of the two Presidents on the war against terroris and their avowal to secure the world against the terrorists would ineluctabl/ suggest a longAdrawn conflict without a foreseeable end. -or0e, 1t 10 "ot 7":1;e:5 t3!t t310 ?!r co7:# e4/!"# !"# e0c!:!te to 1"c:7#e !0 /rot!2o"10t0 t3e Moro I0:!)1c L1ber!t1o" ro"t !"# t3e Moro N!t1o"!: L1ber!t1o" ro"t !"# -"ot 1)/rob!b:5 -t3e N!t1o"!: Peo/:eM0 $r)5, !:: :7)/e#-7/ !0 Iterror10t0I 1" ! 7"1:!ter!: c3!r!cter1H!t1o". No less than F# =eput/ =efense #ecretar/ Paul Golfowit1 declared that the proposed T):Abillion increase to the F# defense budget for $;;2 is intended to sustain the war on terroris ,'$ including that fought in this countr/, thus> .

=eput/ =efense #ecretar/ Paul Golfowit1 on Gednesda/ said the Pentagon needs a big budget increase ne"t /ear on terroris , which has e"panded fro Afghanistan to the Philippines and now appears to be oving to 6eorgia.'2 !he Court can ta0e judicial notice of the foregoing pronounce ents as the/ are of public 0nowledge,') having been widel/ circulated in all channels of the edia. Neither have the/ been denied. US )1:1t!r5 1"ter(e"t1o" 10 "ot t3e 0o:7t1o" to t3e M1"#!"!o /rob:e). Assu ing that the A#6 is a terrorist organi1ation, F.#. ilitar/ intervention is not the solution to achieve peace. !he annihilation of the rebel bandits would be a futile .uest so long at the root causes of their cri inalit/ are not addressed. A stud/'% b/ the Fnited Nations #ecretariat, however, ac0nowledges that international terroris springs fro @ iser/, frustration, grievance and Jdespair,@ ele ents which, an/ believe, are present in Basilan. !wo veteran Philippine journalists have described the province as MindanaoJs @war laborator/,@ where lawlessness, govern ent neglect, religious strife, povert/, and power struggle are ra pant. '3 -f indeed acts of terroris are cries of desperation, if terroris is but a s/ pto of the greater aladies of @ iser/, frustration, grievance and despair,@ then it cannot be re edied alone b/ A#6Js ph/sical e"ter ination, which appears to be the object of President Bush and President MacapagalA Arro/oJs joint ca paign against global terroris .@ Ad ittedl/, the #tate has the right to use force as a eans of selfApreservation. But perhaps we should all consider that a ilitar/ solution is but a firstAaid easure, not t3e prescription to these diseases. -t has been opined that> !he issue of terroris in the Philippines should be dealt with not fro the perspective of ManilaAGashington ties but fro a serious stud/ of how terroris figures in the inds of leaders and ar ed en belonging to the large but deepl/ factionali1ed guerrilla ove ents in the countr/. !erroris can never be dissociated fro guerrilla warfare and the separatist ove ent in Mindanao. 9ro these ove ents would arise religious e"tre ists or illennarian groups. Gith the right resources and the right agenda, these ove ents will continue to attract enAs0illed, intelligent, and e"periencedA who will co e to grasp the practical realities of waging a war with the ini u of resources but a"i u public i pact. !he govern ent does not have to loo0 for foreign connectionsAand be otivated b/ the desire to help foreign friends to address a proble that has been and will be the a0ing of its own ho e grown ar ies. '& !he presence of F# troops in Basilan, whether fro the legal, philosophicalA or even fro the practical perspective cannot be justified, <n the contrar/, it is counterproductive. -t serves to fuel an alread/ volatile situation. F# troops are li0el/ less able, if not less willing, to distinguish between the innocent and the ene /. !he inevitable @collateral da age,@ the 0illing of wo en and children, Musli s and Christians, the destruction of ho es, schools and

hospitals would fan the fla es of fanaticis and transfor ere rogues into art/rs. !he 9ilipino soldier has proven hi self brave, courageous, fearless and tenacious in the field of battle as shown in Bataan and Corregidor, in the four long /ears of guerilla warfare thereafter against the *apanese, and in the struggle for independence against #pain and the Fnited #tates at the turn of the last centur/. !he local ar / and police have successfull/ battled in the past against Co unist and other insurgents which were ore organi1ed and nu erous, operating in larger parts of the countr/ and fighting for their political beliefs. -f our troops need training b/ us advisers or have to conduct joint e"ercises with F# troops to i prove their fighting capabilit/, these could be ore effectivel/ achieved if done outside Basilan or awa/ fro the danger 1ones. -nstead of bringing troops to the co bat 1ones, the F# can do ore b/ suppl/ing our soldiers with odern and high tech weaponr/. Prescinding fro the foregoing dis.uisitions, it is totall/ erroneous to argue that petitioners do not have legal standing or that the issues raised b/ the are pre ature and not based on sufficient facts. !he issues raised are of transcendental i portance.': !he !ali"atan e"ercises pose direct injur/ to so e of the petitioners 4intervenors5 who live in the affected areas. !he presence of us troops in the co bat 1ones @assisting@ and @advising@ our troops in co bat against the A#6 is a blatant violation of the Constitutional proscription against the stationing of foreign troops to fight a local insurgenc/ and puts the countr/ in peril of beco ing a veritable 0illing field. -f the ti e is not ripe to challenge the continuing affront against the Constitution and the safet/ of the people, when is the right ti eM Ghen the countr/side has been devastated and nu erous lives lostM - therefore vote to give due course to the petition. 02#. S$NTI$GO M. @$PUN$N Associate *ustice SEP$R$TE OPINIONN P$NG$NI,$N, J< !hrough their @Petition for Certiorari and, Prohibition,@ Arthur =. Bi and Paulino R. Ersanda AA joined b/ -ntervenors #anla0as and Partido ng Manggagawa AA plead for the issuance of an order @restraining the respondents fro proceeding or continuing and co pleting the soAcalled JBali0atan ;$A'J@ on the ground that the e"ercise is not sanctioned b/ an/ treat/ and is, therefore, allegedl/ unconstitutional. Agreeing with the Co ent of the <ffice of the #olicitor 6eneral 4<#65, the ponencia of Mr. *ustice #abino R. de Beon *r. dis isses the Petition essentiall/ on these procedural grounds> '. As ta"pa/ers, petitioners do not have legal standing or locus standi' because Bali0atan ;$A' @does not involve the e"ercise b/ Congress of its ta"ing or spending power.@ $. Certiorari and prohibition are i proper re edies, because petitioners have not alleged sufficient facts upon which grave abuse of discretion or e"cessIlac0 of jurisdiction could be argued fro .

2. !he Petition is pre ature because the alleged violation of the Constitution is erel/ speculative, not actual or i inent. ). !hough entitled @Certiorari and Prohibition,@ the Petition is reall/ one for declarator/ relief which erel/ see0s an advice or opinion, not a decision. !he #upre e Court has no jurisdiction to issue opinions or advices. <rdinaril/, the above reasons would indeed be sufficient to cause the dis issal of a petition. +owever, because of the @transcendental i portance@ of the ain .uestion raised A the constitutionalit/ of the Bali0atan e"ercise A the Court, - believe, could have e"e pted this case fro these procedural re.uire ents and tac0led the case on the erits, if onl/ to put to rest the legalit/ of this ajor event of public interest ill our countr/ and even ill the world. -, for one, would have voted to set aside these legalistic obstacles, had the #etition presented enough factual moorings upon which to base an intelligent discussion and disposition of the legal issues. 9or instance, this Court cannot be called upon to decide the factual issues of whether the F# forces are actuall/ engaging the Abu #a//af 6roup ill co bat and whether the/ will sta/ ill our countr/ per anentl/. !his Court has no authorit/ to conduct a trial, which can establish these factual antecedents. ,nowing what these antecedents are is necessar/ to deter ine whether the Bali0atan violates the Constitution or the Mutual =efense !reat/ 4M=!5 of '(%' or the Eisiting 9orces Agree ent 4E9A5 of '(((. Eeril/, the Petition has not even alleged that the A erican troops have indeed been unconstitutionall/ engaged ill actual offensive co bat. !he contention that the/ would necessaril/ and surel/ violate the Constitution b/ participating ill the joint e"ercise in Basilan is erel/ speculative. Petitioners aver> @A erican soldiers with highAtech weaponr/, disguised as trainers or advisers to 9ilipino troops, will go to the war 1ones of Basilan. +ence, while dubbed as a ilitar/ e"ercise, it is in realit/ a continuing co bat operation b/ the A9P against the Abu #a//af to be participated in this ti e b/ F.#. troops. -t has been ad itted that F.#. JadvisersJ will acco pan/ 9ilipino soldiers on patrol in the co bat 1ones. Also, a base of operation will be in the #a pinit co ple" which is in the heartland of the Abu #a//afJs Jterritorial do ainJ in Basilan island. A shooting war, not just an e"ercise, is unavoidable.@ !hat a @shooting war is unavoidable@ is conjectural? at best, a conclusion that is not borne b/ solid factual oorings. Cases cannot be decided on ere speculation or prophec/ .!he Petition clai s that while the us troops are @disguised@ as @advisers@ or @trainors@ or @chaperons,@ the/ are actuall/ co batants engaged in an offensive war against local insurgents. Again, there is no solid factual basis for this state ent. -t a/ or a/ not be true. !he Petition also alleges, again without fir factual support, that the A erican forces will sta/ here indefinitel/ @for a /ear or even ore depending on the need of the A9P for the .@ <n the other hand, the <#6 assures that petitionersJ @apprehensions are belied@ b/ the !er s of Reference 4!<R5 approved b/ both the Philippines and the Fnited #tates, which @e"pressl/ li it. the conduct and co pletion of

the e"ercise within a period not e"ceeding si" @ 435 onths and prohibits the A erican participants fro engaging in co bat, without prejudice to their right to selfAdefense.@ - stress that cases cannot be decided b/ this Court on the basis of speculative or h/pothetical assu ptions li0e @-f the facts were these, then our decision would be this? on the other hand, if the facts change, then our ruling would be odified as follows. @ =ecisions of this Court especiall/ in certiorari and prohibition cases are issued onl/ if the facts are clear and definite. As a rule, courts a/ not consider or judge facts or atters unless the/ are alleged in the pleadings and proven b/ the parties. <ur dut/ is to appl/ the law to facts that are not in dispute. -n the absence of fir factual findings that the A ericans @will sta/ indefinitel/@ in our countr/ or @are engaged in actual offensive co bat with local insurgents@ as alleged b/ petitioners, respondent Philippine officials who are hosting the Bali0atan e"ercise cannot possibl/ be i puted with grave abuse of discretion A an indispensable ele ent of certiorari. !rue, there are so e .uestions that a/ genuinel/ be raised in regard to the Bali0atan ;$A' visAaAvis our Constitution, the M=! and the E9A, li0e the following> 4'5 -s the Abu #a//af 6roup co posed of @international terrorists@ whose acts and practices violate the Fnited Nations Charter to such an e"tent as to pose a threat to international peace and securit/M 4$5 -s there an @e"ternal ar ed attac0@ against the Philippines sufficient in force and agnitude as to justif/ an invocation of the M=!M 425 Are the si1e, the 0ind, and the location of the Bali0atan deplo/ ent justified b/ the nature, the scope, the duration, and the 0ind of @activities@ allowed under the E9AM 4)5 -s it true that the real A erican objective is the rescue of A#6 hostages Martin and 6racia Burnha , who are both A erican citi1ensM -f so' is such rescue legall/ justifiedM 4%5 =oes the Bali0atan pose a @political .uestion @ which the #upre e Court has no authorit/ to rule upon, and which a/ onl/ be decided b/ our people directl/ or through their - elected representativesM Fnfortunatel/, the foregoing and other si ilar nagging .uestions cannot be judiciall/ ta0en up and answered until a petition, sufficient in form and substance' is properl/ presented to the appropriate court. 9<R !+E 9<RE6<-N6 REA#<N#, - vote to D+S'+SS the present Petition. Republic of the Philippines SUPREME COURT EN BANC G.R. No. 1'&*&& .7:5 6, 2**' SEN$TOR $>UILINO PIMENTEL, .R., REP. ETT$ ROS$LES, PHILIPPINE CO$LITION OR THE EST$,LISHMENT O THE INTERN$TION$L CRIMIN$L COURT, T$S@ ORCE %ET$INEES O THE PHILIPPINES, $MILIES O 8ICTIMS O IN8OLUNT$R+ %IS$PPE$R$NCES, ,I$NC$

H$CINTH$ R. RO>UE, H$RRISON .$CO, R. RO>UE, $HME% P$GLIN$-$N, RON P. S$LO,O LE$8I%ES G. %OMINGO, E%G$R%O C$RLO 8IST$N, NOEL 8ILL$ROM$N, CELESTE CEM,R$NO, LI=$ $,IER$, .$IME $RRO+O, M$R-IL LL$SOS, CRISTIN$ $TEN%I%O, ISR$ EL $GEL$, !"# ROMEL ,$G$RES, Petitioners, vs. O ICE O THE ECECUTI8E SECRET$R+, HON. $L,ERTO ROMULO, !"# t3e %EP$RTMENT O OREIGN $ $IRS, re/re0e"te# b5 HON. ,L$S OPLE, Re0/o"#e"t0. =EC-#-<N PUNO J.< !his is a petition for mandamus filed b/ petitioners to co pel the <ffice of the E"ecutive #ecretar/ and the =epart ent of 9oreign Affairs to trans it the signed cop/ of the Ro e #tatute of the -nternational Cri inal Court to the #enate of the Philippines for its concurrence in accordance with #ection $', Article E-- of the '(:& Constitution. !he Ro e #tatute established the -nternational Cri inal Court which @shall have the power to e"ercise its jurisdiction over persons for the ost serious cri es of international concern """ and shall be co ple entar/ to the national cri inal jurisdictions.@' -ts jurisdiction covers the cri e of genocide, cri es against hu anit/, war cri es and the cri e of aggression as defined in the #tatute.$ !he #tatute was opened for signature b/ all states in Ro e on *ul/ '&, '((: and had re ained open for signature until =ece ber 2', $;;; at the Fnited Nations +ead.uarters in New Hor0. !he Philippines signed the #tatute on =ece ber $:, $;;; through harge dC )ffairs Enri.ue A. Manalo of the Philippine Mission to the Fnited Nations. 2 -ts provisions, however, re.uire that it be subject to ratification, acceptance or approval of the signator/ states.) Petitioners filed the instant petition to co pel the respondents 7 the <ffice of the E"ecutive #ecretar/ and the =epart ent of 9oreign Affairs 7 to trans it the signed te"t of the treat/ to the #enate of the Philippines for ratification. -t is the theor/ of the petitioners that ratification of a treat/, under both do estic law and international law, is a function of the #enate. +ence, it is the dut/ of the e"ecutive depart ent to trans it the signed cop/ of the Ro e #tatute to the #enate to allow it to e"ercise its discretion with respect to ratification of treaties. Moreover, petitioners sub it that the Philippines has a inisterial dut/ to ratif/ the Ro e #tatute under treat/ law and custo ar/ international law. Petitioners invo0e the Eienna Convention on the Baw of !reaties enjoining the states to refrain fro acts which would defeat the object and purpose of a treat/ when the/ have signed the treat/ prior to ratification unless the/ have ade their intention clear not to beco e parties to the treat/.% !he <ffice of the #olicitor 6eneral, co enting for the respondents, .uestioned the standing of the petitioners to file the instant suit. -t also contended that the petition at bar violates the rule on hierarch/ of courts. <n

the substantive issue raised b/ petitioners, respondents argue that the e"ecutive depart ent has no dut/ to trans it the Ro e #tatute to the #enate for concurrence. A petition for mandamus a/ be filed when an/ tribunal, corporation, board, officer or person unlawfull/ neglects the perfor ance of an act which the law specificall/ enjoins as a dut/ resulting fro an office, trust, or station. 3 Ge have held that to be given due course, a petition for mandamus ust have been instituted b/ a part/ aggrieved b/ the alleged inaction of an/ tribunal, corporation, board or person which unlawfull/ e"cludes said part/ fro the enjo/ ent of a legal right. !he petitioner in ever/ case ust therefore be an aggrieved part/ in the sense that he possesses a clear legal right to be enforced and a direct interest in the dut/ or act to be perfor ed. & !he Court will e"ercise its power of judicial review onl/ if the case is brought before it b/ a part/ who has the legal standing to raise the constitutional or legal .uestion. @Begal standing@ eans a personal and substantial interest in the case such that the part/ has sustained or will sustain direct injur/ as a result of the govern ent act that is being challenged. !he ter @interest@ is aterial interest, an interest in issue and to be affected b/ the decree, as distinguished fro ere interest in the .uestion involved, or a ere incidental interest.: !he petition at bar was filed b/ #enator A.uilino Pi entel, *r. who asserts his legal standing to file the suit as e ber of the #enate? Congresswo an Boretta Ann Rosales, a e ber of the +ouse of Representatives and Chairperson of its Co ittee on +u an Rights? the Philippine Coalition for the Establish ent of the -nternational Cri inal Court which is co posed of individuals and corporate entities dedicated to the Philippine ratification of the Ro e #tatute? the !as0 9orce =etainees of the Philippines, a juridical entit/ with the avowed purpose of pro oting the cause of hu an rights and hu an rights victi s in the countr/? the 9a ilies of Eicti s of -nvoluntar/ =isappearances, a juridical entit/ dul/ organi1ed and e"isting pursuant to Philippine Baws with the avowed purpose of pro oting the cause of fa ilies and victi s of hu an rights violations in the countr/? Bianca +acintha Ro.ue and +arrison *acob Ro.ue, aged two 4$5 and one 4'5, respectivel/, at the ti e of filing of the instant petition, and suing under the doctrine of interA generational rights enunciated in the case of O/o0! (0. !ctor!", .r.?( and a group of fifth /ear wor0ing law students fro the Fniversit/ of the Philippines College of Baw who are suing as ta"pa/ers. !he .uestion in standing is whether a part/ has alleged such a personal sta0e in the outco e of the controvers/ as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largel/ depends for illu ination of difficult constitutional .uestions. '; Ge find that a ong the petitioners, onl/ #enator Pi entel has the legal standing to file the instant suit. !he other petitioners aintain their standing as advocates and defenders of hu an rights, and as citi1ens of the countr/. !he/ have not shown, however, that the/ have sustained or will sustain a direct injur/ fro the nonAtrans ittal of the signed te"t of the Ro e #tatute to

the #enate. !heir contention that the/ will be deprived of their re edies for the protection and enforce ent of their rights does not persuade. !he Ro e #tatute is intended to co ple ent national cri inal laws and courts. #ufficient re edies are available under our national laws to protect our citi1ens against hu an rights violations and petitioners can alwa/s see0 redress for an/ abuse in our do estic courts. As regards #enator Pi entel, it has been held that @to the e"tent the powers of Congress are i paired, so is the power of each e ber thereof, since his office confers a right to participate in the e"ercise of the powers of that institution.@'' !hus, legislators have the standing to aintain inviolate the prerogatives, powers and privileges vested b/ the Constitution in their office and are allowed to sue to .uestion the validit/ of an/ official action which the/ clai infringes their prerogatives as legislators. !he petition at bar invo0es the power of the #enate to grant or withhold its concurrence to a treat/ entered into b/ the e"ecutive branch, in this case, the Ro e #tatute. !he petition see0s to order the e"ecutive branch to trans it the cop/ of the treat/ to the #enate to allow it to e"ercise such authorit/. #enator Pi entel, as e ber of the institution, certainl/ has the legal standing to assert such authorit/ of the #enate. Ge now go to the substantive issue. !he core issue in this petition for mandamus is whether the E"ecutive #ecretar/ and the =epart ent of 9oreign Affairs have a )1"10ter1!: dut/ to trans it to the #enate the cop/ of the Ro e #tatute signed b/ a e ber of the Philippine Mission to the Fnited Nations even without the signature of the President. Ge rule in the negative. -n our s/ste of govern ent, the President, being the head of state, is regarded as the sole organ and authorit/ in e"ternal relations and is the countr/Rs sole representative with foreign nations. '$ As the chief architect of foreign polic/, the President acts as the countr/Rs outhpiece with respect to international affairs. +ence, the President is vested with the authorit/ to deal with foreign states and govern ents, e"tend or withhold recognition, aintain diplo atic relations, enter into treaties, and otherwise transact the business of foreign relations.'2 -n the real of treat/A a0ing, the President has the sole authorit/ to negotiate with other states. Nonetheless, while the President has the sole authorit/ to negotiate and enter into treaties, the Constitution provides a li itation to his power b/ re.uiring the concurrence of $I2 of all the e bers of the #enate for the validit/ of the treat/ entered into b/ hi . #ection $', Article E-- of the '(:& Constitution provides that @no treat/ or international agree ent shall be valid and effective unless concurred in b/ at least twoAthirds of all the Me bers of the #enate.@ !he '(2% and the '(&2 Constitution also re.uired the concurrence b/ the legislature to the treaties entered into b/ the e"ecutive. #ection '; 4&5, Article E-- of the '(2% Constitution provided> #ec. ';. 4&5 !he President shall have the power, with the concurrence of twoA thirds of all the Me bers of the #enate, to a0e treaties """.

#ection ') 4'5 Article E--- of the '(&2 Constitution stated> #ec. '). 4'5 E"cept as otherwise provided in this Constitution, no treat/ shall be valid and effective unless concurred in b/ a ajorit/ of all the Me bers of the Batasang Pa bansa. !he participation of the legislative branch in the treat/A a0ing process was dee ed essential to provide a chec0 on the e"ecutive in the field of foreign relations.') B/ re.uiring the concurrence of the legislature in the treaties entered into b/ the President, the Constitution ensures a health/ s/ste of chec0s and balance necessar/ in the nationRs pursuit of political aturit/ and growth.'% -n filing this petition, the petitioners interpret #ection $', Article E-- of the '(:& Constitution to ean that the power to ratif/ treaties belongs to the #enate. Ge disagree. *ustice -sagani Cru1, in his boo0 on -nternational Baw, describes the treat/A a0ing process in this wise> !he usual steps in the treat/A a0ing process are> negotiation, signature, ratification, and e"change of the instru ents of ratification. !he treat/ a/ then be sub itted for registration and publication under the F.N. Charter, although this step is not essential to the validit/ of the agree ent as between the parties. /egotiation a/ be underta0en directl/ b/ the head of state but he now usuall/ assigns this tas0 to his authori1ed representatives. !hese representatives are provided with credentials 0nown as full powers, which the/ e"hibit to the other negotiators at the start of the for al discussions. -t is standard practice for one of the parties to sub it a draft of the proposed treat/ which, together with the counterAproposals, beco es the basis of the subse.uent negotiations. !he negotiations a/ be brief or protracted, depending on the issues involved, and a/ even @collapse@ in case the parties are unable to co e to an agree ent on the points under consideration. -f and when the negotiators finall/ decide on the ter s of the treat/, the sa e is opened for signature. !his step is pri aril/ intended as a eans of authenticating the instru ent and for the purpose of s/ boli1ing the good faith of the parties? but, significantl/, 1t #oe0 "ot 1"#1c!te t3e 61"!: co"0e"t o6 t3e 0t!te 1" c!0e0 ?3ere r!t161c!t1o" o6 t3e tre!t5 10 reE71re# . !he docu ent is ordinaril/ signed in accordance with the alternat, that is, each of the several negotiators is allowed to sign first on the cop/ which he will bring ho e to his own state. +atification, which is the ne"t step, is the for al act b/ which a state confir s and accepts the provisions of a treat/ concluded b/ its representatives. T3e /7r/o0e o6 r!t161c!t1o" 10 to e"!b:e t3e co"tr!ct1"2 0t!te0 to e4!)1"e t3e tre!t5 )ore c:o0e:5 !"# to 21(e t3e) !" o//ort7"1t5 to re670e to be bo7"# b5 1t 03o7:# t3e5 61"# 1t 1"1)1c!: to t3e1r 1"tere0t0. It 10 6or t310 re!0o" t3!t )o0t tre!t1e0 !re )!#e 07bFect to t3e 0cr7t1"5 !"# co"0e"t

o6 ! #e/!rt)e"t o6 t3e 2o(er")e"t ot3er t3!" t3!t ?31c3 "e2ot1!te# t3e). """ !he last step in the treat/A a0ing process is the e=change of the instruments of ratification, which usuall/ also signifies the effectivit/ of the treat/ unless a different date has been agreed upon b/ the parties. Ghere ratification is dispensed with and no effectivit/ clause is e bodied in the treat/, the instru ent is dee ed effective upon its signature.'3 Cemphasis suppliedD PetitionersR argu ents e.uate the signing of the treat/ b/ the Philippine representative with ratification. -t should be underscored that the signing of the treat/ and the ratification are two separate and distinct steps in the treat/A a0ing process. As earlier discussed, the signature is pri aril/ intended as a eans of authenticating the instru ent and as a s/ bol of the good faith of the parties. -t is usuall/ perfor ed b/ the stateRs authori1ed representative in the diplo atic ission. Ratification, on the other hand, is the for al act b/ which a state confir s and accepts the provisions of a treat/ concluded b/ its representative. -t is generall/ held to be an e"ecutive act, underta0en b/ the head of the state or of the govern ent.'& !hus, E"ecutive <rder No. )%( issued b/ President 9idel E. Ra os on Nove ber $%, '((& provides the guidelines in the negotiation of international agree ents and its ratification. -t andates that after the treat/ has been signed b/ the Philippine representative, the sa e shall be trans itted to the =epart ent of 9oreign Affairs. !he =epart ent of 9oreign Affairs shall then prepare the ratification papers and forward the signed cop/ of the treat/ to the President for ratification. After the President has ratified the treat/, the =epart ent of 9oreign Affairs shall sub it the sa e to the #enate for concurrence. Fpon receipt of the concurrence of the #enate, the =epart ent of 9oreign Affairs shall co pl/ with the provisions of the treat/ to render it effective. #ection & of E"ecutive <rder No. )%( reads> Sec. 7. %o)e0t1c ReE71re)e"t0 6or t3e E"tr5 1"to orce o6 ! Tre!t5 or !" E4ec7t1(e $2ree)e"t. O !he do estic re.uire ents for the entr/ into force of a treat/ or an e"ecutive agree ent, or an/ a end ent thereto, shall be as follows> A. E"ecutive Agree ents. i. All e"ecutive agree ents shall be trans itted to the =epart ent of 9oreign Affairs after their signing for the preparation of the ratification papers. !he trans ittal shall include the highlights of the agree ents and the benefits which will accrue to the Philippines arising fro the . ii. !he =epart ent of 9oreign Affairs, pursuant to the endorse ent b/ the concerned agenc/, shall trans it the agree ents to the President of the Philippines for his ratification. !he original signed instru ent of ratification shall then be returned to the =epart ent of 9oreign Affairs for appropriate action. B. !reaties. i. All treaties, regardless of their designation, shall co pl/ with the re.uire ents provided in subAparagraphCsD ' and $, ite A 4E"ecutive

Agree ents5 of this #ection. -n addition, the =epart ent of 9oreign Affairs shall sub it the treaties to the #enate of the Philippines for concurrence in the ratification b/ the President. A certified true cop/ of the treaties, in such nu bers as a/ be re.uired b/ the #enate, together with a certified true cop/ of the ratification instru ent, shall acco pan/ the sub ission of the treaties to the #enate. ii. Fpon receipt of the concurrence b/ the #enate, the =epart ent of 9oreign Affairs shall co pl/ with the provision of the treaties in effecting their entr/ into force. PetitionersR sub ission that the Philippines is bound under treat/ law and international law to ratif/ the treat/ which it has signed is without basis. !he signature does not signif/ the final consent of the state to the treat/. -t is the ratification that binds the state to the provisions thereof. -n fact, the Ro e #tatute itself re.uires that the signature of the representatives of the states be subject to ratification, acceptance or approval of the signator/ states. Ratification is the act b/ which the provisions of a treat/ are for all/ confir ed and approved b/ a #tate. B/ ratif/ing a treat/ signed in its behalf, a state e"presses its willingness to be bound b/ the provisions of such treat/. After the treat/ is signed b/ the stateRs representative, the President, being accountable to the people, is burdened with the responsibilit/ and the dut/ to carefull/ stud/ the contents of the treat/ and ensure that the/ are not ini ical to the interest of the state and its people. !hus, the President has the discretion even after the signing of the treat/ b/ the Philippine representative whether or not to ratif/ the sa e. !he Eienna Convention on the Baw of !reaties does not conte plate to defeat or even restrain this power of the head of states. -f that were so, the re.uire ent of ratification of treaties would be pointless and futile. -t has been held that a state has no legal or even oral dut/ to ratif/ a treat/ which has been signed b/ its plenipotentiaries. ': !here is no legal obligation to ratif/ a treat/, but it goes without sa/ing that the refusal ust be based on substantial grounds and not on superficial or whi sical reasons. <therwise, the other state would be justified in ta0ing offense.'( -t should be e phasi1ed that under our Constitution, the power to ratif/ is vested in the President, subject to the concurrence of the #enate. !he role of the #enate, however, is li ited onl/ to giving or withholding its consent, or concurrence, to the ratification.$; +ence, it is within the authorit/ of the President to refuse to sub it a treat/ to the #enate or, having secured its consent for its ratification, refuse to ratif/ it.$' Although the refusal of a state to ratif/ a treat/ which has been signed in its behalf is a serious step that should not be ta0en lightl/,$$ such decision is within the co petence of the President alone, which cannot be encroached b/ this Court via a writ of mandamus. !his Court has no jurisdiction over actions see0ing to enjoin the President in the perfor ance of his official duties.$2 !he Court, therefore, cannot issue the writ of mandamus pra/ed for b/ the petitioners as it is be/ond its jurisdiction to co pel the e"ecutive branch of the govern ent to trans it the signed te"t of Ro e #tatute to the #enate.

IN 8IE- -HEREO , the petition is %ISMISSE%. SO OR%ERE%. Republic of the Philippines SUPREME COURT EN BANC G.R. No. 1*6*64 October 13, 2**' S/o70e0 Re"!to Co"0t!"t1"o, .r. !"# Lo7r#e0 Co"0t!"t1"o !"# t3e1r )1"or c31:#re" Re"!to Re#e"tor, $""! M!r1;! L100!, N1"! E:100!, !"# $""! @!r)1"!, ree#o) ro) %ebt Co!:1t1o", !"# 1:o)e"o St!. $"! III, Petitioners, vs. Ho". .o0e ,. C7101!, 1" 310 c!/!c1t5 !0 Go(er"or o6 t3e Ce"tr!: ,!";, Ho". R!)o" #e: Ro0!r1o, 1" 310 c!/!c1t5 !0 Secret!r5 o6 1"!"ce, Ho". E))!"7e: 8. Pe:!eH, 1" 310 c!/!c1t5 !0 P31:1//1"e %ebt Ne2ot1!t1"2 C3!1r)!", !"# t3e N$TION$L TRE$SURER, Respondents. =EC-#-<N T1"2!, J.< !he .uag ire that is the foreign debt proble has especiall/ confounded developing nations around the world for decades. -t has defied eas/ solutions acceptable both to debtor countries and their creditors. -t has also e erged as cause celebre for various political ove ents and grassroots activists and the wellspring of uch scholarl/ thought and debate. !he present petition illustrates so e of the ideological and functional differences between e"perts on how to achieve debt relief. +owever, this being a court of law, not an acade ic foru or a convention on develop ent econo ics, our resolution has to hinge on the presented legal issues which center on the appreciation of the constitutional provision that e powers the President to contract and guarantee foreign loans. !he ulti ate choice is between a restrictive reading of the constitutional provision and an ali entative application thereof consistent with ti eAhonored principles on e"ecutive power and the alter ego doctrine. !his #etition for ertiorari' #rohibition and 5andamus assails said contracts which were entered into pursuant to the Philippine Co prehensive 9inancing Progra for '(($ 4@9inancing Progra @ or @Progra @5. -t see0s to enjoin respondents fro e"ecuting additional debtArelief contracts pursuant thereto. -t also urges the Court to issue an order co pelling the #ecretar/ of *ustice to institute cri inal and ad inistrative cases against respondents for acts which circu vent or negate the provisions Art. L-- of the Constitution. ' #arties and 8acts !he petition was filed on '& *ul/ '(($ b/ petitioners spouses Renato Constantino, *r. and Bourdes Constantino and their inor children, Renato Redentor, Anna Mari0a Bissa, Nina Elissa, and Anna ,ar ina, 9ilo eno #ta. Ana ---, and the 9reedo fro =ebt Coalition, a nonAstoc0, nonAprofit, nonA govern ent organi1ation that advocates a @proApeople and just Philippine debt polic/.@$ Na ed respondents were the then 6overnor of the Bang0o

#entral ng Pilipinas, the #ecretar/ of 9inance, the National !reasurer, and the Philippine =ebt Negotiation Chair an E anuel E. Pelae1. 2 All respondents were e bers of the Philippine panel tas0ed to negotiate with the countr/Rs foreign creditors pursuant to the 9inancing Progra . !he operative facts are sparse and there is little need to elaborate on the . !he 9inancing Progra was the cul ination of efforts that began during the ter of for er President Cora1on A.uino to anage the countr/Rs e"ternal debt proble through a negotiationAoriented debt strateg/ involving cooperation and negotiation with foreign creditors. ) Pursuant to this strateg/, the A.uino govern ent entered into three restructuring agree ents with representatives of foreign creditor govern ents during the period of '(:3 to '(('.% =uring the sa e period, three si ilarl/Aoriented restructuring agree ents were e"ecuted with co ercial ban0 creditors.3 <n $: 9ebruar/ '(($, the Philippine =ebt Negotiating !ea , chaired b/ respondent Pelae1, negotiated an agree ent with the countr/Rs Ban0 Advisor/ Co ittee, representing all foreign co ercial ban0 creditors, on the 9inancing Progra which respondents characteri1ed as @a ultiAoption financing pac0age.@& !he Progra was scheduled to be e"ecuted on $) *ul/ '(($ b/ respondents in behalf of the Republic. Nonetheless, petitioners alleged that even prior to the e"ecution of the Progra respondents had alread/ i ple ented its @bu/bac0 co ponent@ when on '% Ma/ '(($, the Philippines bought bac0 P'.$3 billion of e"ternal debts pursuant to the Progra . : !he petition sought to enjoin the ratification of the Progra , but the Court did not issue an/ injunctive relief. +ence, it ca e to pass that the Progra was signed in Bondon as scheduled. !he petition still has to be resolved though as petitioners see0 the annul ent @of an/ and all acts done b/ respondents, their subordinates and an/ other public officer pursuant to the agree ent and progra in .uestion.@ ( Even after the signing of the Progra , respondents the selves ac0nowledged that the re aining principal objective of the petition is to set aside respondentsR actions.'; Petitioners characteri1e the 9inancing Progra as a pac0age offered to the countr/Rs foreign creditors consisting of two debtArelief options. '' !he first option was a cash bu/bac0 of portions of the Philippine foreign debt at a discount.'$ !he second option allowed creditors to convert e"isting Philippine debt instru ents into an/ of three 0inds of bondsIsecurities> 4'5 new one/ bonds with a fiveA/ear grace period and '& /ears final aturit/, the purchase of which would allow the creditors to convert their eligible debt papers into bearer bonds with the sa e ter s? 4$5 interestAreduction bonds with a aturit/ of $% /ears? and 425 principalAcollaterali1ed interestAreduction bonds with a aturit/ of $% /ears.'2 <n the other hand, according to respondents the 9inancing Progra would cover about F.#. T%.2 billion of foreign co ercial debts and it was e"pected to deal co prehensivel/ with the co ercial ban0 debt proble of the countr/ and pave the wa/ for the countr/Rs access to capital ar0ets. ') !he/

add that the Progra carried three basic options fro which foreign ban0 lenders could choose, na el/> to lend one/, to e"change e"isting restructured Philippine debts with an interest reduction bond? or to e"change the sa e Philippine debts with a principal collaterali1ed interest reduction bond.'% <ssues for +esolution Petitioners raise several issues before this Court. 9irst, the/ object to the debtArelief contracts entered into pursuant to the 9inancing Progra as be/ond the powers granted to the President under #ection $;, Article E-- of the Constitution.'3 !he provision states that the President a/ contract or guarantee foreign loans in behalf of the Republic. -t is clai ed that the bu/bac0 and securiti1ationIbond conversion sche es are neither @loans@ nor @guarantees,@ and hence be/ond the power of the President to e"ecute. #econd' according to petitioners even assu ing that the contracts under the 9inancing Progra are constitutionall/ per issible, /et it is onl/ the President who a/ e"ercise the power to enter into these contracts and such power a/ not be delegated to respondents. !hird, petitioners argue that the 9inancing Progra violates several constitutional policies and that contracts e"ecuted or to be e"ecuted pursuant thereto were or will be done b/ respondents with grave abuse of discretion a ounting to lac0 or e"cess of jurisdiction. Petitioners contend that the 9inancing Progra was ade available for debts that were either fraudulentl/ contracted or void. -n this regard, petitioners rel/ on a '(($ Co ission on Audit 4C<A5 report which identified several @behest@ loans as either contracted or guaranteed fraudulentl/ during the Marcos regi e.'& !he/ posit that since these and other si ilar debts, such as the ones pertaining to the Bataan Nuclear Power Plant, ': were eligible for bu/bac0 or conversion under the Progra , the resultant relief agree ents pertaining thereto would be void for being waivers of the RepublicRs right to repudiate the void or fraudulentl/ contracted loans. 9or their part, respondents dispute the points raised b/ petitioners. !he/ also .uestion the standing of petitioners to institute the present petition and the justiciabilit/ of the issues presented. !he Court shall tac0le the procedural .uestions ahead of the substantive issues. The ourtCs +ulings Standing of #etitioners !he individual petitioners are suing as citi1ens of the Philippines? those a ong the who are of age are suing in their additional capacit/ as ta"pa/ers.'( -t is not indicated in what capacit/ the 9reedo fro =ebt Coalition is suing. Respondents point out that petitioners have no standing to file the present suit since the rule allowing ta"pa/ers to assail e"ecutive or legislative acts has been applied onl/ to cases where the constitutionalit/ of a statute is

involved. At the sa e ti e, however, the/ urge this Court to e"ercise its wide discretion and waive petitionersR lac0 of standing. !he/ invo0e the transcendental i portance of resolving the validit/ of the .uestioned debtA relief contracts and others of si ilar i port. !he recent trend on locus standi has veered towards a liberal treat ent in ta"pa/erRs suits. -n Tatad v. Garcia (r.,$; this Court reiterated that the @prevailing doctrines in ta"pa/erRs suits are to allow ta"pa/ers to .uestion contracts entered into b/ the national govern ent or govern ent owned and controlled corporations allegedl/ in contravention of law.@ $' A ta=payer is allowed to sue where there is a clai that public funds are illegall/ disbursed, or that public one/ is being deflected to an/ i proper purpose, or that there is a wastage of public funds through the enforce ent of an invalid or unconstitutional law.$$ Moreover, a ruling on the issues of this case will not onl/ deter ine the validit/ or invalidit/ of the subject preAter ination and bondAconversion of foreign debts but also create a precedent for other debts or debtArelated contracts e"ecuted or to be e"ecuted in behalf of the President of the Philippines b/ the #ecretar/ of 9inance. Considering the reported Philippine debt of P2.:; trillion as of Nove ber $;;), the foreign public borrowing co ponent of which reached P'.:' trillion in Nove ber, e.uivalent to )&.3N of total govern ent borrowings,$2 the i portance of the issues raised and the agnitude of the public interest involved are indubitable. !hus, the CourtRs cogni1ance of this petition is also based on the consideration that the deter ination of the issues presented will have a bearing on the state of the countr/Rs econo /, its international financial ratings, and perhaps even the 9ilipinosR wa/ of life. #een in this light, the transcendental i portance of the issues herein presented cannot be doubted. Ghere constitutional issues are properl/ raised in the conte"t of alleged facts, procedural .uestions ac.uire a relativel/ inor significance. $) Ge thus hold that b/ the ver/ nature of the power wielded b/ the President, the effect of using this power on the econo /, and the wellAbeing in general of the 9ilipino nation, the Court ust set aside the procedural barrier of standing and rule on the justiciable issues presented b/ the parties. +ipenessI)ctual ase ,imension Even as respondents concede the transcendental i portance of the issues at bar, in their +ejoinder the/ as0 this Court to dis iss the #etition. Allegedl/, petitionersR argu ents are ere atte pts at abstraction. $% Respondents are correct to so e degree. #everal issues, as shall be discussed in due course, are not ripe for adjudication. !he allegation that respondents waived the PhilippinesR right to repudiate void and fraudulentl/ contracted loans b/ e"ecuting the debtArelief agree ents is, on an/ levels, not justiciable. -n the first place, records do not show whether the soAcalled behest loansUor other allegedl/ void or fraudulentl/ contracted loans for that atterUwere subject of the debtArelief contracts entered into under the 9inancing Progra .

Moreover, asserting a right to repudiate void or fraudulentl/ contracted loans begs the .uestion of whether indeed particular loans are void or fraudulentl/ contracted. 9raudulentl/ contracted loans are voidable and, as such, valid and enforceable until annulled b/ the courts. <n the other hand, void contracts that have alread/ been fulfilled ust be declared void in view of the a"i that no one is allowed to ta0e the law in his own hands. $3 PetitionersR theor/ depends on a prior annul ent or declaration of nullit/ of the preA e"isting loans, which thus far have not been sub itted to this Court. Additionall/, void contracts are unratifiable b/ their ver/ nature? the/ are null and void ab initio. Conse.uentl/, fro the viewpoint of civil law, what petitioners present as the RepublicRs @right to repudiate@ is /et a contingent right, one which cannot be allowed as an anticipator/ basis for annulling the debtArelief contracts. PetitionersR contention that the debtArelief agree ents are tanta ount to waivers of the RepublicRs @right to repudiate@ soAcalled behest loans is without legal foundation. -t a/ not be a iss to recogni1e that there are an/ advocates of the position that the Republic should renege on obligations that are considered as @illegiti ate.@ +owever, should the e"ecutive branch unilaterall/, and possibl/ even without prior court deter ination of the validit/ or invalidit/ of these contracts, repudiate or otherwise declare to the international co unit/ its resolve not to recogni1e a certain set of @illegiti ate@ loans, adverse repercussions$& would co e into pla/. =r. 9elipe Medalla, for er =irector 6eneral of the National Econo ic =evelop ent Authorit/, has warned, thus> <ne wa/ to reduce debt service is to repudiate debts, totall/ or selectivel/. !a0en to its li it, however, such a strateg/ would put the Philippines at such odds with too an/ ene ies. 9oreign co ercial ban0s b/ the selves and without the cooperation of creditor govern ents, especiall/ the Fnited #tates, a/ not be in a position to inflict uch da age, but concerted sanctions fro co ercial ban0s, ultilateral financial institutions and creditor govern ents would affect not onl/ our sources of credit but also our access to ar0ets for our e"ports and the level of develop ent assistance. . . . C!Dhe countr/ ight face concerted sanctions even if debts were repudiated onl/ selectivel/. !he point that ust be stressed is that repudiation is not an attractive alternative if net pa/ ents to creditors in the short and ediu Arun can be reduced through an agree ent 4as opposed to a unilaterall/ set ceiling on debt service pa/ ents5 which provides for both rescheduling of principal and capitali1ation of interest, or its e.uivalent in new loans, which would a0e it easier for the countr/ to pa/ interest.$: #overeign default is not new to the Philippine setting. -n <ctober '(:2, the Philippines declared a oratoriu on principal pa/ ents on its e"ternal debts that eventuall/ lasted four /ears,$( that virtuall/ closed the countr/Rs access to new foreign one/2; and drove investors to leave the Philippine ar0et, resulting in so e devastating conse.uences.2' -t would appear then that this beguilingl/

attractive and dangerousl/ si plistic solution deserves the ut ost circu spect cogitation before it is resorted to. -n an/ event, the discretion on the atter lies not with the courts but with the e"ecutive. !hus, the Progra was conceptuali1ed as an offshoot of the decision ade b/ then President A.uino that the Philippines should recogni1e its sovereign debts 2$ despite the controvers/ that engulfed an/ debts incurred during the Marcos era. -t is a sche e whereb/ the Philippines restructured its debts following a negotiated approach instead of a default approach to anage the blea0 Philippine debt situation. As a final point, petitioners have no real basis to fret over a possible waiver of the right to repudiate void contracts. Even assu ing that spurious loans had beco e the subject of debtArelief contracts, respondents une.uivocall/ assert that the Republic did not waive an/ right to repudiate void or fraudulentl/ contracted loans, it having incorporated a @noAwaiver@ clause in the agree ents.22 Substantive <ssues -t is helpful to put the atter in perspective before oving on to the erits. !he 9inancing Progra e"tinguished portions of the countr/Rs preAe"isting loans through either debt bu/bac0 or bondAconversion. !he bu/bac0 approach essentiall/ preAter inated portions of public debts while the bondAconversion sche e e"tinguished public debts through the obtention of a new loan b/ virtue of a sovereign bond issuance, the proceeds of which in turn were used for ter inating the original loan. 7irst +ssue: 0he Scope o/ Section 89, Article :++ 9or their first constitutional argu ent, petitioners sub it that the bu/bac0 and bondAconversion sche es do not constitute the loan @contract@ or @guarantee@ conte plated in the Constitution and are conse.uentl/ prohibited. #ec. $;, Art. E-- of the Constitution provides, viz> !he President a/ contract or guarantee foreign loans in behalf of the Republic of the Philippines with the prior concurrence of the Monetar/ Board and subject to such li itations as a/ be provided under law. !he Monetar/ Board shall, within thirt/ da/s fro the end of ever/ .uarter of the calendar /ear, sub it to the Congress a co plete report of its decisions on applications for loans to be contracted or guaranteed b/ the govern ent or govern entAowned and controlled corporations which would have the effect of increasing the foreign debt, and containing other atters as a/ be provided b/ law. On !ond-conversion Boans are transactions wherein the owner of a propert/ allows another part/ to use the propert/ and where custo aril/, the latter pro ises to return the propert/ after a specified period with pa/ ent for its use, called interest. 2) <n the other hand, bonds are interestAbearing or discounted govern ent or corporate securities that obligate the issuer to pa/ the bondholder a specified su of one/, usuall/ at specific intervals, and to repa/ the principal a ount

of the loan at aturit/.2% !he word @bond@ eans contract, agree ent, or guarantee. All of these ter s are applicable to the securities 0nown as bonds. An investor who purchases a bond is lending one/ to the issuer, and the bond represents the issuerRs contractual pro ise to pa/ interest and repa/ principal according to specific ter s. A shortAter bond is often called a note.23 !he language of the Constitution is si ple and clear as it is broad. -t allows the President to contract and guarantee foreign loans. -t a0es no prohibition on the issuance of certain 0inds of loans or distinctions as to which 0inds of debt instru ents are ore onerous than others. !his Court a/ not ascribe to the Constitution eanings and restrictions that would undul/ burden the powers of the President. !he plain, clear and una biguous language of the Constitution should be construed in a sense that will allow the full e"ercise of the power provided therein. -t would be the worst 0ind of judicial legislation if the courts were to isconstrue and change the eaning of the organic act. !he onl/ restriction that the Constitution provides, aside fro the prior concurrence of the Monetar/ Board, is that the loans ust be subject to li itations provided b/ law. -n this regard, we note that Republic Act 4R.A.5 No. $)% as a ended b/ Pres. =ecree 4P.=.5 No. ')$, s. '(&2, entitled )n )ct )uthorizing the Secretary of 8inance to !orrow to 5eet #ublic 6=penditures )uthorized by *aw' and for Other #urposes, allows foreign loans to be contracted in the for of, inter alia, bonds. !hus> #ec. '. -n order to eet public e"penditures authori1ed b/ law or to provide for the purchase, rede ption, or refunding of an/ obligations, either direct or guaranteed of the Philippine 6overn ent, t3e Secret!r5 o6 1"!"ce, ?1t3 t3e !//ro(!: o6 t3e Pre01#e"t o6 t3e P31:1//1"e0, !6ter co"07:t!t1o" ?1t3 t3e Mo"et!r5 ,o!r#, 10 !7t3or1He# to borro? 6ro) t1)e to t1)e o" t3e cre#1t o6 t3e Re/7b:1c o6 t3e P31:1//1"e0 07c3 07) or 07)0 !0 1" 310 F7#2)e"t )!5 be "ece00!r5, !"# to 1007e t3ere6or e(1#e"ce0 o6 1"#ebte#"e00 o6 t3e P31:1//1"e Go(er")e"t.I S7c3 e(1#e"ce0 o6 1"#ebte#"e00 )!5 be o6 t3e 6o::o?1"2 t5/e0< .... c. Tre!07r5 bo"#0, notes, securities or ot3er e(1#e"ce0 o6 1"#ebte#"e00 3!(1"2 )!t7r1t1e0 o6 o"e 5e!r or )ore b7t "ot e4cee#1"2 t?e"t5-61(e 5e!r0 6ro) t3e #!te o6 1007e. 4E phasis supplied.5 Fnder the foregoing provisions, sovereign bonds a/ be issued not onl/ to supple ent govern ent e"penditures but also to provide for the purchase, 2& rede ption,2: or refunding2( of an/ obligation, either direct or guaranteed, of the Philippine 6overn ent. Petitioners, however, point out that a supposed difference between contracting a loan and issuing bonds is that the for er creates a definite creditorAdebtor relationship between the parties while the latter does not. ); !he/ e"plain that a contract of loan enables the debtor to restructure or novate the loan, which benefit is lost upon the conversion of the debts to bearer bonds such that @the Philippines surrenders the novatable character of a loan contract for the irrevocable and unpostponable de andabilit/ of a

bearer bond.@)' Allegedl/, the Constitution prohibits the President fro issuing bonds which are @far ore onerous@ than loans. )$ !his line of thin0ing is flawed to sa/ the least. !he negotiable character of the subject bonds is not utuall/ e"clusive with the RepublicRs freedo to negotiate with bondholders for the revision of the ter s of the debt. Moreover, the securities ar0et provides so e fle"ibilit/Uif the Philippines wants to pa/ in advance, it can bu/ out its bonds in the ar0et? if interest rates go down but the Philippines does not have one/ to retire the bonds, it can replace the old bonds with new ones? if it defaults on the bonds, the bondholders shall organi1e and bring about a reAnegotiation or settle ent. )2 -n fact, several countries have restructured their sovereign bonds in view either of inabilit/ andIor unwillingness to pa/ the indebtedness.)) Petitioners have not presented a plausible reason that would preclude the Philippines fro acting in a si ilar fashion, should it so opt. !his theor/ a/ even be dis issed in a perfunctor/ anner since petitioners are erel/ e"pecting that the Philippines would opt to restructure the bonds but with the negotiable character of the bonds, would be prevented fro so doing. !his is a contingenc/ which petitioners do not assert as having co e to pass or even i inent. Consu ated acts of the e"ecutive cannot be struc0 down b/ this Court erel/ on the basis of petitionersR anticipator/ cavils. On the !uybac" Scheme -n their omment' petitioners assert that the power to pa/ public debts lies with Congress and was deliberatel/ withheld b/ the Constitution fro the President.)% -t is true that in the balance of power between the three branches of govern ent, it is Congress that anages the countr/Rs coffers b/ virtue of its ta"ing and spending powers. +owever, the lawA a0ing authorit/ has pro ulgated a law ordaining an auto atic appropriations provision for debt servicing)3 b/ virtue of which the President is e powered to e"ecute debt pa/ ents without the need for further appropriations. Regarding these legislative enact ents, this Court has held, viz> Congress V deliberates or acts on the budget proposals of the President, and Congress in the e"ercise of its own judg ent and wisdo for ulates an appropriation act precisel/ following the process established b/ the Constitution, which specifies that no one/ a/ be paid fro the !reasur/ e"cept in accordance with an appropriation ade b/ law. =ebt service is not included in the 6eneral Appropriation Act, since authori1ation therefor alread/ e"ists under RA Nos. ):3; and $)%, as a ended, and P= '(3&. Precisel/ in the light of this subsisting authori1ation as e bodied in said Republic Acts and P= for debt service, Congress does not concern itself with details for i ple entation b/ the E"ecutive, but largel/ with annual levels and approval thereof upon due deliberations as part of the whole obligation progra for the /ear. Fpon such approval, Congress has

spo0en and cannot be said to have delegated its wisdo to the E"ecutive, on whose part lies the i ple entation or e"ecution of the legislative wisdo . )& #pecific legal authorit/ for the bu/bac0 of loans is established under #ection $ of Republic Act 4R.A.5 No. $);, viz> #ec. $. T3e Secret!r5 o6 1"!"ce 03!:: c!70e to be /!1# o7t o6 !"5 )o"e50 1" t3e N!t1o"!: Tre!07r5 "ot ot3er?10e !//ro/r1!te#, or 6ro) !"5 01";1"2 67"#0 /ro(1#e# 6or t3e /7r/o0e b5 :!?, !"5 1"tere0t 6!::1"2 #7e, or !ccr71"2, o" !"5 /ort1o" o6 t3e /7b:1c #ebt !7t3or1He# b5 :!?. He 03!:: !:0o c!70e to be /!1# o7t o6 !"5 07c3 )o"e5, or 6ro) !"5 07c3 01";1"2 67"#0 t3e /r1"c1/!: !)o7"t o6 !"5 ob:12!t1o"0 ?31c3 3!(e )!t7re#, or which have been called for rede ption or for which rede ption has been de anded in accordance with ter s prescribed b/ hi prior to date of issue> Provided, however, !hat he a/, if he so chooses and if the holder is willing, e"change an/ such obligation with an/ other direct or guaranteed obligation or obligations of the Philippine 6overn ent of e.uivalent value. -n the case of interestAbearing obligations, he shall pa/ not less than their face value? in the case of obligations issued at a discount he shall pa/ the face value at aturit/? or, 16 re#ee)e# /r1or to )!t7r1t5, 07c3 /ort1o" o6 t3e 6!ce (!:7e !0 10 /re0cr1be# b5 t3e ter)0 !"# co"#1t1o"0 7"#er ?31c3 07c3 ob:12!t1o"0 ?ere or121"!::5 1007e#. 4E phasis supplied.5 !he aforeA.uoted provisions of law specificall/ allow the President to preA ter inate debts without further action fro Congress. Petitioners clai that the bu/bac0 sche e is neither a guarantee nor a loan since its underl/ing intent is to e"tinguish debts that are not /et due and de andable.): !hus, the/ suggest that contracts entered pursuant to the bu/bac0 sche e are unconstitutional for not being a ong those conte plated in #ec. $;, Art. E-- of the Constitution. Bu/bac0 is a necessar/ power which springs fro the grant of the foreign borrowing power. Ever/ statute is understood, b/ i plication, to contain all such provisions as a/ be necessar/ to effectuate its object and purpose, or to a0e effective rights, powers, privileges or jurisdiction which it grants, including all such collateral and subsidiar/ conse.uences as a/ be fairl/ and logicall/ inferred fro its ter s.)( !he President is not e powered to borrow one/ fro foreign ban0s and govern ents on the credit of the Republic onl/ to be left bereft of authorit/ to i ple ent the pa/ ent despite appropriations therefor. Even petitioners concede that @CtDhe Constitution, as a rule, does not enu erateUlet alone enu erate allUthe acts which the President 4or an/ other public officer5 a/ not do,@%; and @CtDhe fact that the Constitution does not e"plicitl/ bar the President fro e"ercising a power does not ean that he or she does not have that power.@%' -t is inescapable fro the standpoint of reason and necessit/ that the authorit/ to contract foreign loans and guarantees without restrictions on pa/ ent or anner thereof coupled with the availabilit/ of the corresponding appropriations, ust include the power to effect pa/ ents or to a0e

pa/ ents unavailing b/ either restructuring the loans or even refusing to a0e an/ pa/ ent altogether. More funda entall/, when ta0en in the conte"t of sovereign debts, a bu/bac0 is si pl/ the purchase b/ the sovereign issuer of its own debts at a discount. Clearl/ then, the objection to the validit/ of the bu/bac0 sche e is without basis. Secon +ssue: Delegation o/ Po$er Petitioners stress that unli0e other powers which a/ be validl/ delegated b/ the President, the power to incur foreign debts is e"pressl/ reserved b/ the Constitution in the person of the President. !he/ argue that the gravit/ b/ which the e"ercise of the power will affect the 9ilipino nation re.uires that the President alone ust e"ercise this power. !he/ sub it that the re.uire ent of prior concurrence of an entit/ specificall/ na ed b/ the ConstitutionUthe Monetar/ BoardUreinforces the sub ission that not respondents but the President @alone and personall/@ can validl/ bind the countr/. PetitionersR position is negated both b/ e"plicit constitutional %$ and legal%2 i pri aturs, as well as the doctrine of .ualified political agenc/. !he evident e"igenc/ of having the #ecretar/ of 9inance i ple ent the decision of the President to e"ecute the debtArelief contracts is ade anifest b/ the fact that the process of establishing and e"ecuting a strateg/ for anaging the govern entRs debt is deep within the real of the e"pertise of the =epart ent of 9inance, pri ed as it is to raise the re.uired a ount of funding, achieve its ris0 and cost objectives, and eet an/ other sovereign debt anage ent goals.%) -f, as petitioners would have it, the President were to personall/ e"ercise ever/ aspect of the foreign borrowing power, heIshe would have to pause fro running the countr/ long enough to focus on a welter of ti eAconsu ing detailed activitiesUthe propriet/ of incurringIguaranteeing loans, stud/ing and choosing a ong the an/ ethods that a/ be ta0en toward this end, eeting countless ti es with creditor representatives to negotiate, obtaining the concurrence of the Monetar/ Board, e"plaining and defending the negotiated deal to the public, and ore often than not, fl/ing to the agreed place of e"ecution to sign the docu ents. !his sort of constitutional interpretation would negate the ver/ e"istence of cabinet positions and the respective e"pertise which the holders thereof are accorded and would undul/ ha per the PresidentRs effectivit/ in running the govern ent. Necessit/ thus gave birth to the doctrine of .ualified political agenc/, later adopted in Eillena v. Secretary of the <nterior%% fro A erican jurisprudence, viz> Gith reference to the E"ecutive =epart ent of the govern ent, there is one purpose which is cr/stalAclear and is readil/ visible without the projection of judicial searchlight, and that is the establish ent of a single, not plural, E"ecutive. !he first section of Article E-- of the Constitution, dealing with the E"ecutive =epart ent, begins with the enunciation of the principle that @!he e"ecutive power shall be vested in a President of the Philippines.@ !his eans that the President of the Philippines is the E"ecutive of the

6overn ent of the Philippines, and no other. !he heads of the e"ecutive depart ents occup/ political positions and hold office in an advisor/ capacit/, and, in the language of !ho as *efferson, @should be of the PresidentJs boso confidence@ 4& Gritings, 9ord ed., )(:5, and, in the language of Attorne/A6eneral Cushing 4& <p., Attorne/A6eneral, )%25, @are subject to the direction of the President.@ Githout ini i1ing the i portance of the heads of the various depart ents, their personalit/ is in realit/ but the projection of that of the President. #tated otherwise, and as forcibl/ characteri1ed b/ Chief *ustice !aft of the #upre e Court of the Fnited #tates, @each head of a depart ent is, and ust be, the PresidentJs alter ego in the atters of that depart ent where the President is re.uired b/ law to e"ercise authorit/@ 4M/ers vs. Fnited #tates, )& #up. Ct. Rep., $' at 2;? $&$ F. #., %$ at '22? &' Baw. ed., '3;5.%3 As it was, the bac0drop consisted of a ajor polic/ deter ination ade b/ then President A.uino that sovereign debts have to be respected and the conco itant realit/ that the Philippines did not have enough funds to pa/ the debts. -nevitabl/, it fell upon the #ecretar/ of 9inance, as the alter ego of the President regarding @the sound and efficient anage ent of the financial resources of the 6overn ent,@%& to for ulate a sche e for the i ple entation of the polic/ publicl/ e"pressed b/ the President herself. Nevertheless, there are powers vested in the President b/ the Constitution which a/ not be delegated to or e"ercised b/ an agent or alter ego of the President. *ustice Baurel, in his ponencia in Villena, a0es this clear> Githal, at first blush, the argu ent of ratification a/ see plausible under the circu stances, it should be observed that there are certain acts which, b/ their ver/ nature, cannot be validated b/ subse.uent approval or ratification b/ the President. !here are certain constitutional powers and prerogatives of the Chief E"ecutive of the Nation which ust be e"ercised b/ hi in person and no a ount of approval or ratification will validate the e"ercise of an/ of those powers b/ an/ other person. #uch, for instance, in his power to suspend the writ of habeas corpus and proclai artial law 4PAR. 2, #EC. '', Art. E--5 and the e"ercise b/ hi of the benign prerogative of erc/ 4par. 3, sec. '', ide 5.%: !hese distinctions hold true to this da/. !here are certain presidential powers which arise out of e"ceptional circu stances, and if e"ercised, would involve the suspension of funda ental freedo s, or at least call for the supersedence of e"ecutive prerogatives over those e"ercised b/ coAe.ual branches of govern ent. !he declaration of artial law, the suspension of the writ of habeas corpus, and the e"ercise of the pardoning power notwithstanding the judicial deter ination of guilt of the accused, all fall within this special class that de ands the e"clusive e"ercise b/ the President of the constitutionall/ vested power. !he list is b/ no eans e"clusive, but there ust be a showing that the e"ecutive power in .uestion is of si ilar gravitas and e"ceptional i port.

Ge cannot conclude that the power of the President to contract or guarantee foreign debts falls within the sa e e"ceptional class. -ndubitabl/, the decision to contract or guarantee foreign debts is of vital public interest, but onl/ a0in to an/ contractual obligation underta0en b/ the sovereign, which arises not fro an/ e"traordinar/ incident, but fro the established functions of governance. Another i portant .ualification ust be ade. !he #ecretar/ of 9inance or an/ designated alter ego of the President is bound to secure the latterRs prior consent to or subse.uent ratification of his acts. -n the atter of contracting or guaranteeing foreign loans, the repudiation b/ the President of the ver/ acts perfor ed in this regard b/ the alter ego will definitel/ have binding effect. +ad petitioners herein succeeded in de onstrating that the President actuall/ withheld approval andIor repudiated the 9inancing Progra , there could be a cause of action to nullif/ the acts of respondents. Notabl/ though, petitioners do not assert that respondents pursued the Progra without prior authori1ation of the President or that the ter s of the contract were agreed upon without the PresidentRs authori1ation. Congruent with the avowed preference of then President A.uino to honor and restructure e"isting foreign debts, the lac0 of showing that she counter anded the acts of respondents leads us to conclude that said acts carried presidential approval. Gith constitutional para eters alread/ established, we a/ also note, as a source of suppletor/ guidance, the provisions of R.A. No. $)%. !he aforeA .uoted #ection ' thereof e powers the #ecretar/ of 9inance with the approval of the President and after consultation %( of the Monetar/ Board, @to borrow fro ti e to ti e on the credit of the Republic of the Philippines such su or su s as in his judg ent a/ be necessar/, and to issue therefor evidences of indebtedness of the Philippine 6overn ent.@ -neluctabl/ then, while the President wields the borrowing power it is the #ecretar/ of 9inance who nor all/ carries out its thrusts. -n our recent rulings in Southern ross ement orporation v. The #hilippine ement 5anufacturers orp.,3; this Court had occasion to e"a ine the authorit/ granted b/ Congress to the =epart ent of !rade and -ndustr/ 4=!-5 #ecretar/ to i pose safeguard easures pursuant to the #afeguard Measures Act. -n doing so, the Court was i pelled to construe #ection $:4$5, Article E- of the Constitution, which allowed Congress, b/ law, to authori1e the President to @fi" within specified li its, and subject to such li itations and restrictions as it a/ i pose, tariff rates, i port and e"port .uotas, tonnage and wharfage dues, and other duties or i posts within the fra ewor0 of the national develop ent progra of the 6overn ent.@ 3' Ghile the Court refused to uphold the broad construction of the grant of power as preferred b/ the =!- #ecretar/, it nonetheless tacitl/ ac0nowledged that Congress could designate the =!- #ecretar/, in his capacit/ as alter ego of the President, to e"ercise the authorit/ vested on the chief e"ecutive under #ection $:4$5, Article E-.3$ At the sa e ti e, the Court e phasi1ed that since #ection $:4$5, Article E- authori1ed Congress to i pose li itations and restrictions on the authorit/ of the President to i pose tariffs and i posts,

the =!- #ecretar/ was necessaril/ subjected to the sa e restrictions that Congress could i pose on the President in the e"ercise of this ta"ing power. #i ilarl/, in the instant case, the Constitution allocates to the President the e"ercise of the foreign borrowing power @subject to such li itations as a/ be provided under law.@ 9ollowing Southern ross, but in line with the li itations as defined in Villena, the presidential prerogative a/ be e"ercised b/ the PresidentRs alter ego, who in this case is the #ecretar/ of 9inance. -t bears e phasis that apart fro the Constitution, there is also a relevant statute, R.A. No. $)%, that establishes the para eters b/ which the alter ego a/ act in behalf of the President with respect to the borrowing power. !his law e"pressl/ provides that the #ecretar/ of 9inance a/ enter into foreign borrowing contracts. !his law neither a ends nor goes contrar/ to the Constitution but erel/ i ple ents the subject provision in a anner consistent with the structure of the E"ecutive =epart ent and the alter ego doctine. -n this regard, respondents have declared that the/ have followed the restrictions provided under R.A. No. $)%,32 which include the re.uisite presidential authori1ation and which, in the absence of proof and even allegation to the contrar/, should be regarded in a fashion congruent with the presu ption of regularit/ bestowed on acts done b/ public officials. Moreover, in pra/ing that the acts of the respondents, especiall/ that of the #ecretar/ of 9inance, be nullified as being in violation of a restrictive constitutional interpretation, petitioners in effect would have this Court declare R.A. No. $)% unconstitutional. Ge will not stri0e down a law or provisions thereof without so uch as a direct attac0 thereon when si ple and logical statutor/ construction would suffice. Petitioners also sub it that the unrestricted character of the 9inancing Progra violates the fra ersR intent behind #ection $;, Article E-- to restrict the power of the President. !his intent, petitioners note, is e bodied in the proviso in #ec. $;, Art. E--, which states that said power is @subject to such li itations as a/ be provided under law.@ +owever, as previousl/ discussed, the debtArelief contracts are governed b/ the ter s of R.A. No. $)%, as a ended b/ P.=. No. ')$ s. '(&2, and therefore were not developed in an unrestricted setting. Third <ssue? Grave )buse of ,iscretion and Violation of onstitutional #olicies Ge treat the re aining issues jointl/, for in view of the foregoing deter ination, the general allegation of grave abuse of discretion on the part of respondents would arise fro the purported violation of various state policies as e"pressed in the Constitution. Petitioners allege that the 9inancing Progra violates the constitutional state policies to pro ote a social order that will @ensure the prosperit/ and independence of the nation@ and free @the people fro povert/, 3) foster @social justice in all phases of national develop ent,@ 3% and develop a selfA reliant and independent national econo / effectivel/ controlled b/ 9ilipinos?@33 thus, the contracts e"ecuted or to be e"ecuted pursuant thereto

were or would be tainted b/ a grave abuse of discretion a ounting to lac0 or e"cess of jurisdiction. Respondents cite the following in support of the propriet/ of their acts> 3& 4'5 a =epart ent of 9inance stud/ showing that as a result of the i ple entation of voluntar/ debt reductions sche es, the countr/Rs debt stoc0 was reduced b/ F.#. T).) billion as of =ece ber '(('?3: 4$5 revelations ade b/ independent individuals ade in a hearing before the #enate Co ittee on Econo ic Affairs indicating that the assailed agree ents would bring about substantial benefits to the countr/?3( and 425 the *oint BegislativeAE"ecutive 9oreign =ebt CouncilRs endorse ent of the approval of the financing pac0age containing the debtA relief agree ents and issuance of a Motion to Frge the Philippine =ebt Negotiating Panel to continue with the negotiation on the aforesaid pac0age.&; Even with these justifications, respondents aver that their acts are within the arena of political .uestions which, based on the doctrine of separation of powers,&' the judiciar/ ust leave without interference lest the courts substitute their judg ent for that of the official concerned and decide a atter which b/ its nature or law is for the latter alone to decide. &$ <n the other hand, in furtherance of their argu ent on respondentsR violation of constitutional policies, petitioners cite an article of *ude Esguerra, The 411% !uybac" and Securitization )greement with #hilippine ommercial !an" reditors,&2 in illustrating a bestAcase scenario in entering the subject debtArelief agree ents. !he co putation results in a /ield of T$':.(( illion, rather than the T$,;)'.;; illion clai ed b/ the debt negotiators. &) <n the other hand, the worstAcase scenario allegedl/ is that a net a ount of T'.32: illion will flow out of the countr/ as a result of the debt pac0age. &% Assu ing the accurac/ of the foregoing for the nonce, despite the wateredA down para eters of petitionersR co putations, we can a0e no conclusion other than that respondentsR efforts were geared towards debtArelief with ar0ed positive results and towards achieving the constitutional policies which petitioners so hastil/ declare as having been violated b/ respondents. Ge recogni1e that as with other sche es dependent on volatile ar0et and econo ic structures, the contracts entered into b/ respondents a/ possibl/ have a net outflow and therefore negative result. +owever, even petitioners call this latter event the worstAcase scenario. Plans are seldo foolproof. !o as0 the Court to stri0e down debtArelief contracts, which, according to independent third part/ evaluations using historicall/Asuggested rates would result in @substantial debtArelief,@&3 based erel/ on the possibilit/ of petitionersR worstAcase scenario projection, hardl/ see s reasonable. Moreover, the policies set b/ the Constitution as litani1ed b/ petitioners are not a panacea that can annul ever/ govern ental act sought to be struc0 down. !he gist of petitionersR argu ents on violation of constitutional policies and grave abuse of discretion boils down to their allegation that the debtA relief agree ents entered into b/ respondents do not deliver the 0ind of debtA

relief that petitioners would want. Petitioners cite the afore entioned article in stating that that @the agree ent achieves little that cannot be gained through less co plicated eans li0e postponing 4rescheduling5 principal pa/ ents,@&& thus> C!Dhe price of success in putting together this @debtArelief pac0age@ 4indicates5 the possibilit/ that a si ple rescheduling agree ent a/ well turn out to be less e"pensive than this co prehensive @debtArelief@ pac0age. !his eans that in the ne"t si" /ears the hu ble and si ple rescheduling process a/ well be the lesser evil because there is that distinct possibilit/ that less one/ will flow out of the countr/ as a result. Note ust be ta0en that fro these citations, petitioners sub it that there is possibly a better wa/ to go about debt rescheduling and, on that basis, insist that the acts of respondents ust be struc0 down. !hese are rather tenuous grounds to conde n the subject agree ents as violative of constitutional principles. onclusion !he raison dC etre of the 9inancing Progra is to anage debts incurred b/ the Philippines in a anner that will lessen the burden on the 9ilipino ta"pa/ersUthus the ter @debtArelief agree ents.@ !he easures objected to b/ petitioners were not ai ed at incurring ore debts but at ter inating preA e"isting debts and were bac0ed b/ the 0nowAhow of the countr/Rs econo ic anagers as affir ed b/ third part/ e pirical anal/sis. !hat the eans e plo/ed to achieve the goal of debtArelief do not sit well with petitioners is be/ond the power of this Court to re ed/. !he e"ercise of the power of judicial review is erel/ to chec0Unot supplantUthe E"ecutive, or to si pl/ ascertain whether he has gone be/ond the constitutional li its of his jurisdiction but not to e"ercise the power vested in hi or to deter ine the wisdo of his act.&: -n cases where the ain purpose is to nullif/ govern ental acts whether as unconstitutional or done with grave abuse of discretion, there is a strong presu ption in favor of the validit/ of the assailed acts. !he heav/ onus is in on petitioners to overco e the presu ption of regularit/. Ge find that petitioners have not sufficientl/ established an/ basis for the Court to declare the acts of respondents as unconstitutional. G+ERE9<RE the petition is hereb/ =-#M-##E=. No costs. #< <R=ERE=. #EPARA!E <P-N-<N P$NG$NI,$N, J.: - agree that the Petition should be dis issed, insofar as it see0s to nullif/ the subject debtArelief Contracts e"ecuted b/ respondents under the authorit/ of the President. Decision to Honor De)ts an !*ecutive Call -ndubitabl/, for er President Cora1on C. A.uinoRs decision to honor the outstanding debts of the Republic at the ti e she assu ed the presidenc/ was a polic/ atter well within her prerogative. -t was purel/ an e"ecutive

call? hence, be/ond judicial scrutin/. !he Petition has failed to show grave abuse of discretion that would warrant judicial intervention. - agree with the ponencia of the distinguished Mr. *ustice =ante <. !inga> not onl/ was the act of President A.uino impliedly granted via her vast e"ecutive powers? it was also e=plicitly authori1ed under #ection $;' of Article E-- of the Constitution. No E(1#e"ce S7//ort1"2 Cr1)1"!: or $#)1"10tr!t1(e C3!r2e0 $2!1"0t Re0/o"#e"t0 9or the above reasons, neither can respondents be faulted for drawing up and i ple enting the Philippine Co prehensive 9inancing Progra for '(($ 4@9inancing Progra @5. !he Progra was a product of the @negotiatedA oriented debt strateg/@ adopted b/ the A.uino govern ent. $ Bi0ewise, the assailed debt relief agree ents were e"ecuted pursuant to that constitutional e"ecutive polic/. -n addition to .uestioning respondentsR authorit/ to e"ecute the subject agree ents, petitioners also clai that several foreign loans that were allegedl/ fraudulent 4if not void for being contrar/ to public polic/5 were a ong the public debts assu ed b/ the govern ent and ade eligible for restructuring under the 9inancing Progra . #pecificall/, the/ contend that those debts included ') loans assu ed b/ the govern ent, but which the Co ission on Audit 4C<A5 had found to have been contracted or guaranteed fraudulentl/ b/ for er President 9erdinand Marcos andIor his cronies.2 Allegedl/, b/ borrowing new one/ to li.uidate those fraudulent or @behest@ loans, the countr/Rs right to repudiate the were thereb/ waived b/ respondents. !hus, the filing of ad inistrative and cri inal charges against the are being sought b/ petitioners. Fnderstandabl/, the ponencia does not address this argu ent, because the Petition has failed to substantiate the charges. A proper resolution of these clai s obviousl/ necessitates, inter alia' a review of the assailed contracts. Petitioners have failed, however, to furnish this Court certified copies of the .uestioned debtArelief agree ents. +ence, the Court has no valid basis to deter ine whether a ong the public debts assu ed and refinanced b/ the govern ent was an/ of the fraudulentl/ contracted foreign loan. -t is a hornboo0 rule that whoever alleges the fraud or invalidit/ of a public docu ent has the burden of proving the allegation with clear, convincing and ore than erel/ preponderant evidence. ) Fnfortunatel/, absolutel/ no proof has been offered in the present Petition. At botto , a deter ination of the validit/ of petitionersR allegation re.uires a review of factual atters. Certiorari see0s onl/ to correct errors of jurisdiction or grave abuse of discretion a ounting to lac0 or e"cess of jurisdiction. % -t has often been repeated that the #upre e Court is not a trier of facts. 3 #ince factual bases were needed, petitioners could have initiall/ filed their Petition in the lower courts,& which had concurrent jurisdiction over the subject atter and which were better e.uipped to conduct a firsthand e"a ination of factual evidence in support of their allegations.

Besides, as respondents stated in their Co ent, @ ost of the loans covered b/ the agree ent have not /et been the subject of judicial scrutin/ as to their validit/. Fntil annulled b/ proper court decree, such debts continue to be outstanding obligations of the Republic.@: Fnless voided b/ the courts, the loan contracts are presu ed valid.( Moreover, unless the/ the selves are proven to have participated in corrupt or unlawful acts in obtaining the loans, respondents should not be held cri inall/ liable for the allegedl/ fraudulent contracts entered into b/ their predecessors in office. As it is, the Petition does not even allege that an/ of the had an/ role in the e"ecution of an/ of the ') loans reported b/ C<A to be fraudulent. !hus, - believe that under the circu stances, and insofar as it see0s an order fro this Court to have respondents investigated for an/ ad inistrative or cri inal culpabilit/ in relation to the e"ecution of the .uestioned contracts, the Petition cannot be granted. As - said earlier, no evidence at all has been proffered to warrant such order. Let )e 3!0te" to 0t!te, t3o723, t3!t "ot31"2 3ere 03o7:# /rec:7#e t3e %e/!rt)e"t o6 .70t1ce A%O.B or t3e O661ce o6 t3e O)b7#0)!" AOM,B 6ro) 1"1t1!t1"2 !" 1"(e0t12!t1o" re2!r#1"2 t3e 14 :o!"0 re/orte# b5 t3e CO$ to 3!(e bee" 6r!7#7:e"t:5 co"tr!cte# #7r1"2 t3e M!rco0 re21)e. Criminal Prosecution Proper 1hen 0here +s Su//icient !vi ence Relevantl/, a/ - add that # GG v. ,esierto''; which - had the honor of writing for the Court, had directed the <MB to file the necessar/ cri inal charges against +er inio !. =isini in relation to the awarding of the Philippine Nuclear Power Plant 4PNPP5 project, which is also entioned in the present case. !he Court found that, contrar/ to the <MBRs findings, there was sufficient evidence establishing a probable cause for the filing of charges against =isini, who @had capitali1ed, e"ploited and ta0en advantage of his close personal relations with the for er President " " " Cand hadD re.uested and received pecuniar/ considerations fro Gestinghouse and Burns 8 Roe, which were endeavoring to close the PNPP contract with the Philippine govern ent.@ -ncluded in the records of that case were Affidavits of 0e/ witnesses and various docu ents supporting the charges of corruption, briber/ and other unlawful acts co itted during the negotiation for and e"ecution of the PNPP Contract. T3e /o1"t 10 t3!t t310 Co7rt c!""ot or#er t3e /ro0ec7t1o" o6 !"5o"e 7":e00 /rob!b:e c!70e 10 03o?", !0 1t ?!0 1" PC%% v. Desierto.'' G+ERE9<RE, - vote to D+S'+SS the Petition. Republic of the Philippines SUPREME COURT Manila !+-R= =-E-#-<N ebr7!r5 14, 2**7

G.R. No. 167919

PL$RI%EL M. $,$+$, COMMO%ORE PL$RI%EL C. G$RCI$ Aret1re#B !"# PM$ L'9 OUN%$TION, INC., re/. b5 1t0 Pre01#e"t, COMMO%ORE C$RLOS L. $GUSTIN Aret1re#B, Petitioners, vs. HON. SECRET$R+ HERMOGENES E. E,%$NE, .R., 1" 310 c!/!c1t5 !0 Secret!r5 o6 t3e %EP$RTMENT O PU,LIC -OR@S !"# HIGH-$+S, HON. SECRET$R+ EMILI$ T. ,ONCO%IN, 1" 3er c!/!c1t5 !0 Secret!r5 o6 t3e %EP$RTMENT O ,U%GET !"# M$N$GEMENT, HON. SECRET$R+ CES$R 8. PURISIM$, 1" 310 c!/!c1t5 !0 Secret!r5 o6 t3e %EP$RTMENT O IN$NCE, HON. TRE$SURER NORM$ L. L$S$L$, 1" 3er c!/!c1t5 !0 Tre!07rer o6 t3e ,7re!7 o6 Tre!07r5, !"# CHIN$ RO$% !"# ,RI%GE CORPOR$TION, Respondents. =EC-#-<N C$LLE.O, SR., J.: Before the Court is the petition for certiorari and prohibition under Rule 3% of the Rules of Court see0ing to set aside and nullif/ Resolution No. P*+BAAA ;)A;'$ dated Ma/ &, $;;) issued b/ the Bids and Awards Co ittee 4BAC5 of the =epart ent of Public Gor0s and +ighwa/s 4=PG+5 and approved b/ then =PG+ Acting #ecretar/ 9lorante #ori.ue1. !he assailed resolution reco ended the award to private respondent China Road 8 Bridge Corporation of the contract for the i ple entation of civil wor0s for Contract Pac0age No. - 4CP -5, which consists of the i prove entIrehabilitation of the #an Andres 4Codon5AEiracA*ct. BagoAEiga road, with the length of &(.:': 0ilo eters, in the island province of Catanduanes. !he CP - project is one of the four pac0ages co prising the project for the i prove entIrehabilitation of the Catanduanes Circu ferential Road, covering a total length of about $;).%'% 0ilo eters, which is the ain highwa/ in Catanduanes Province. !he road section 4Catanduanes Circu ferential Road5 is part of the Arterial Road Bin0s =evelop ent Project 4Phase -E5 funded under Boan Agree ent No. P+AP$;) dated =ece ber $:, '((( between the *apan Ban0 for -nternational Cooperation 4*B-C5 and the 6overn ent of the Republic of the Philippines. Bac0ground Based on the E"change of Notes dated =ece ber $&, '(((, ' the 6overn ent of *apan and the 6overn ent of the Philippines, through their respective representatives, na el/, Mr. Hoshihisa Ara, A bassador E"traordinar/ and Plenipotentiar/ of *apan to the Republic of the Philippines, and then #ecretar/ of 9oreign Affairs =o ingo B. #ia1on, have reached an understanding concerning *apanese loans to be e"tended to the Philippines. !hese loans were ai ed at pro oting our countr/Rs econo ic stabili1ation and develop ent efforts. !he E"change of Notes consisted of two docu ents> 4'5 a Better fro the 6overn ent of *apan, signed b/ A bassador Ara, addressed to then #ecretar/ of 9oreign Affairs #ia1on, confir ing the understanding reached between the two govern ents concerning the loans to be e"tended b/ the 6overn ent of *apan to the Philippines? and 4$5 a docu ent deno inated as

Records of =iscussion where the salient ter s of the loans as set forth b/ the 6overn ent of *apan, through the *apanese delegation, were reiterated and the said ter s were accepted b/ the Philippine delegation. Both A bassador Ara and then #ecretar/ #ia1on signed the Records of =iscussion as representatives of the 6overn ent of *apan and Philippine 6overn ent, respectivel/. !he E"change of Notes provided that the loans to be e"tended b/ the 6overn ent of *apan to the Philippines consisted of two loans> Boan - and Boan --. !he E"change of Notes stated in part> '. A loan in *apanese /en up to the a ount of sevent/Anine billion eight hundred and si"t/Aone illion /en 4H&(,:3',;;;,;;;5 4hereinafter referred to as @the Boan -@5 will be e"tended, in accordance with the relevant laws and regulations of *apan, to the 6overn ent of the Republic of the Philippines 4hereinafter referred to as @the Borrower -@5 b/ the *apan Ban0 for -nternational Cooperation 4hereinafter referred to as @the Ban0@5 to i ple ent the projects enu erated in the Bist A attached hereto 4hereinafter referred to as @the Bist A@5 according to the allocation for each project as specified in the Bist A. $. 4'5 !he Boan - will be ade available b/ loan agree ents to be concluded between the Borrower - and the Ban0. !he ter s and conditions of the Boan - as well as the procedure for its utili1ation will be governed b/ said loan agree ents which will contain, inter alia, the following principles> ... 4$5 Each of the loan agree ents entioned in subA paragraph 4'5 above will be concluded after the Ban0 is satisfied of the feasibilit/, including environ ental consideration, of the project to which such loan agree ent relates. 2. 4'5 !he Boan - will be ade available to cover pa/ ents to be ade b/ the Philippine e"ecuting agencies to suppliers, contractors andIor consultants of eligible source countries under such contracts as a/ be entered into between the for purchases of products andIor services re.uired for the i ple entation of the projects enu erated in the Bist A, provided that such purchases are ade in such eligible source countries for products produced in andIor services supplied fro those countries. 4$5 !he scope of eligible source countries entioned in subA paragraph 4'5 above will be agreed upon between the authorities concerned of the two 6overn ents. 425 A part of the Boan - a/ be used to cover eligible local currenc/ re.uire ents for the i ple entation of the projects enu erated in the Bist A.

). Gith regard to the shipping and arine insurance of the products purchased under the Boan -, the 6overn ent of the Republic of the Philippines will refrain fro i posing an/ restrictions that a/ hinder fair and free co petition a ong the shipping and arine insurance co panies. " " " "$ 4awphi4.net Pertinentl/, Bist A, which specified the projects to be financed under the Boan -, includes the Arterial Road Bin0s =evelop ent Project 4Phase -E5, to wit> B-#! A Ma"i u a ount in illion /en5 '. #econdar/ Education =evelop ent and - prove ent Project &,$'; $. Rural Gater #uppl/ Project 4Phase E5 (%' 2. Bohol -rrigation Project 4Phase --5 3,;&: ). Agrarian Refor -nfrastructure #upport Project 4Phase --5 '3,((; %. Arterial Road Bin0s =evelop ent Project 4Phase -E5 '%,2:) 3. Cordillera Road - prove ent Project %,:%$ &. PhilippinesA*apan 9riendship +ighwa/ Mindanao #ection Rehabilitation Project 4Phase --5 &,)2) :. Rehabilitation and Maintenance of Bridges Along Arterial Roads Project 4Phase -E5 %,;3: (. Mariti e #afet/ - prove ent Project 4Phase C5 ),&') ';. Pinatubo +a1ard Frgent Mitigation Project 4Phase --5 (,;'2 ''. PasigAMari0ina River Channel - prove ent Project 4Phase -5 ','3& !otal &(,:3'2 !he E"change of Notes further provided that> --"""" 2. !he 6overn ent of the Republic of the Philippines will ensure that the products andIor services entioned in subAparagraph 4'5 of paragraph 2 of Part - and subAparagraph 4'5 of paragraph ) of Part -- are procured in accordance with the guidelines for procure ent of the Ban0, which set forth, inter alia, the procedures of international tendering to be followed e"cept where such procedures are inapplicable or inappropriate. " " " ") !he Records of =iscussion, which for ed part of the E"change of Notes, also stated in part, thus> """" '. Gith reference to subAparagraph 425 of paragraph 2 of Part - of the E"change of Notes concerning the financing of eligible local currenc/ re.uire ents for the i ple entation of the projects entioned in the said subAparagraph, the representative of the *apanese delegation stated that>

4'5 such re.uire ent of local currenc/ as general ad inistrative e"penses, interest during construction, ta"es and duties, e"penses concerning office, re uneration to e plo/ees of the e"ecuting agencies and housing, not directl/ related to the i ple entation of the said projects, as well as purchase of land properties, co pensation and the li0e, however, will not be considered as eligible for financing under the Boan -? and 4$5 the procure ent of products andIor services will be ade in accordance with the procedures of international co petitive tendering e"cept where such procedures are inapplicable and inappropriate. " " " "% !hus, in accordance with the agree ent reached b/ the 6overn ent of *apan and the Philippine 6overn ent, as e"pressed in the E"change of Notes between the representatives of the two govern ents, the Philippines obtained fro and was granted a loan b/ the *B-C. Boan Agree ent No. P+A P$;) dated =ece ber $:, '(((, in particular, stated as follows> Boan Agree ent No. P+AP$;), dated =ece ber $:, '(((, between *APAN BAN, 9<R -N!ERNA!-<NAB C<<PERA!-<N and the 6<EERNMEN! <9 !+E REPFBB-C <9 !+E P+-B-PP-NE#. -n the light of the contents of the E"change of Notes between the 6overn ent of *apan and the 6overn ent of the Republic of the Philippines dated =ece ber $&, '(((, concerning *apanese loans to be e"tended with a view to pro oting the econo ic stabili1ation and develop ent efforts of the Republic of the Philippines. *APAN BAN, 9<R -N!ERNA!-<NAB C<<PERA!-<N 4hereinafter referred to as @the BAN,@5 and !+E 6<EERNMEN! <9 !+E REPFBB-C <9 !+E P+-B-PP-NE# 4hereinafter referred to as @the Borrower@5 herewith conclude the following Boan Agree ent 4hereinafter referred to as @the Boan Agree ent@, which includes all agree ents supple ental hereto5. " " " "3 Fnder the ter s and conditions of Boan Agree ent No. P+AP$;), *B-C agreed to lend the Philippine 6overn ent an a ount not e"ceeding 9-9!EEN B-BB-<N !+REE +FN=RE= E-6+!HA9<FR M-BB-<N *apanese Hen 4H '%,2:),;;;,;;;5 as principal for the i ple entation of the Arterial Road Bin0s =evelop ent Project 4Phase -E5 on the ter s and conditions set forth in the Boan Agree ent and in accordance with the relevant laws and regulations of *apan.& !he said a ount shall be used for the purchase of eligible goods and services necessar/ for the i ple entation of the aboveA entioned project fro suppliers, contractors or consultants. : 9urther, it was provided under the said loan agree ent that other ter s and conditions generall/ applicable thereto shall be set forth in the 6eneral !er s and Conditions, dated Nove ber '(:&, issued b/ the <verseas Econo ic Cooperation 9und 4<EC95 and for the purpose, reference to @the <EC9@ and @9und@ therein 46eneral !er s and Conditions5 shall be substituted b/ @the

*B-C@ and @Ban0,@ respectivel/.( #pecificall/, the guidelines for procure ent of all goods and services to be financed out of the proceeds of the said loan shall be as stipulated in the 6uidelines for Procure ent under <EC9 Boans dated =ece ber '((& 4herein referred to as *B-C Procure ent 6uidelines5.'; As entioned earlier, the proceeds of Boan Agree ent No. P+AP$;) was to be used to finance the Arterial Road Bin0s =evelop ent Project 4Phase -E5, of which the Catanduanes Circu ferential Road was a part. !his road section, in turn, was divided into four contract pac0ages 4CP5> CP -> #an Andres 4Codon5AEiracA*ct. BatoA Eiga Road A &(.:': 0 s CP --> EigaABaga anoc Road A ';.); 0 s. CP ---> Baga anocAPandan Road A )&.%; 0 s. CP -E> PandanACara oranACodon Road A 33.); 0 s.'' #ubse.uentl/, the =PG+, as the govern ent agenc/ tas0ed to i ple ent the project, caused the publication of the @-nvitation to Pre.ualif/ and to Bid@ for the i ple entation of the CP - project in two leading national newspapers, na el/, the Manila !i es and Manila #tandard on Nove ber $$ and $(, and =ece ber %, $;;$. A total of twent/Athree 4$25 foreign and local contractors responded to the invitation b/ sub itting their acco plished pre.ualification docu ents on *anuar/ $2, $;;2. -n accordance with the established pre.ualification criteria, eight contractors were evaluated or considered eligible to bid as concurred b/ the *B-C. <ne of the , however, withdrew? thus, onl/ seven contractors sub itted their bid proposals. !he bid docu ents sub itted b/ the pre.ualified contractorsIbidders were e"a ined to deter ine their co pliance with the re.uire ents as stipulated in Article 3 of the -nstruction to Bidders. '$ After the lapse of the deadline for the sub ission of bid proposals, the opening of the bids co enced i ediatel/. Prior to the opening of the respective bid proposals, it was announced that the Approved Budget for the Contract 4ABC5 was in the a ount of P&2:,&';,%32.3&. !he result of the bidding revealed the following three lowest bidders and their respective bids visAWAvis the ABC>'2 Na e of Bidder '5 China Road And Bridge Corporation $5 Cavite -deal -ntRl Const. =evt. Corp. 25 -talian !hai =evRt. Public Co pan/, Btd. <riginal Bid As Read 4Pesos5 P ((2,':2,(;).(: P',;((,($3,%(:.'' P','$%,;$$,;&%.2)

!he bid of private respondent China Road 8 Bridge Corporation was corrected fro the original P((2,':2,(;).(: 4with variance of 2).)%N fro the ABC5 to P(%$,%3),:$'.&' 4with variance of $:.(%N fro the ABC5 based on their letter clarification dated April $', $;;).') After further evaluation of the bids, particularl/ those of the lowest three bidders, Mr. +edifu e E1awa, Project Manager of the Catanduanes Circu ferential Road - prove ent Project 4CCR-P5, in his ContractorRs Bid Evaluation Report dated April $;;), reco ended the award of the contract to private respondent China Road 8 Bridge Corporation> -n accordance with the 6uidelines for the Procure ents under <=A C<fficial =evelop ent AssistanceD Boans, the Consultant hereb/ reco ends the award of the contract for the construction of CP -, #an Andres 4Codon5 U Eirac U *ct. Bato U Eiga #ection under the Arterial Road Bin0s =evelop ent Projects, Phase -E, *B-C Boan No. P+AP$;) to the Bowest Co pl/ing Bidder, China Road and Bridge Corporation, at its total corrected bid a ount of Nine +undred 9ift/A!wo Million 9ive +undred #i"t/A9our !housand Eight +undred !went/A<ne 8 &'I';; Pesos.'% !he BAC of the =PG+, with the approval of then Acting #ecretar/ #ori.ue1, issued the assailed Resolution No. P*+BAAA;)A;'$ dated Ma/ &, $;;) reco ending the award in favor of private respondent China Road 8 Bridge Corporation of the contract for the i ple entation of civil wor0s for CP -, #an Andres 4Codon5 U Eirac U *ct. Bato U Eiga Road 4Catanduanes Circu ferential Road - prove ent Project5 of the Arterial Roads Bin0s =evelop ent Project, Phase -E, located in Catanduanes Province, under *B-C Boan Agree ent No. P+AP$;).'3 <n #epte ber $(, $;;), a Contract of Agree ent was entered into b/ and between the =PG+ and private respondent China Road 8 Bridge Corporation for the i ple entation of the CP - project. !he Parties Petitioner Plaridel M. Aba/a clai s that he filed the instant petition as a ta"pa/er, for er law a0er, and a 9ilipino citi1en. Petitioner Plaridel C. 6arcia li0ewise clai s that he filed the suit as a ta"pa/er, for er ilitar/ officer, and a 9ilipino citi1en. Petitioner PMA R%( 9oundation, -nc., on the other hand, is a nonAstoc0, nonAprofit corporation organi1ed under the e"isting Philippine laws. -t clai s that its e bers are all ta"pa/ers and AsACorrected Bid A ount alu ni of the Philippine Militar/ Acade /. -t is represented b/ its President, 4Pesos5 Carlos B. Agustin. Na ed as public respondents are the =PG+, as the govern ent agenc/ P(%$,%3),:$'.&' tas0ed with the i ple entation of govern ent infrastructure projects? the =epart ent of Budget and Manage ent 4=BM5 as the govern ent agenc/ P',;((,($3,%(:.'' that authori1es the release and disburse ent of public funds for the i ple entation of govern ent infrastructure projects? and the =epart ent of 9inance 4=<95 as the govern ent agenc/ that acts as the custodian and P','$%,2($,)&%.23 anager of all financial resources of the govern ent. Also na ed as individual public respondents are +er ogenes E. Ebdane, *r., E ilia !. Boncodin and Cesar E. Purisi a in their capacities as for er #ecretaries of

the =PG+, =BM and =<9, respectivel/. <n the other hand, public respondent Nor a B. Basala was i pleaded in her capacit/ as !reasurer of the Bureau of !reasur/. Private respondent China Road 8 Bridge Corporation is a dul/ organi1ed corporation engaged in the business of construction. !he PetitionersR Case !he petitioners ainl/ see0 to nullif/ =PG+ Resolution No. P*+BAAA;)A;'$ dated Ma/ &, $;;), which reco ended the award to private respondent China Road 8 Bridge Corporation of the contract for the i ple entation of the civil wor0s of CP -. !he/ also see0 to annul the contract of agree ent subse.uentl/ entered into b/ and between the =PG+ and private respondent China Road 8 Bridge Corporation pursuant to the said resolution. !he/ pose the following issues for the CourtRs resolution> -. Ghether or not Petitioners have standing to file the instant Petition. --. Ghether or not Petitioners are entitled to the issuance of a Grit of Certiorari reversing and setting aside =PG+ Resolution No. P*+BAAA ;)A;'$, reco ending the award of the Contract Agree ent for the i ple entation of civil wor0s for CP-, #an Andres 4C<=<N5AE-RACA *C! BA!<AE-6A R<A= 4CA!AN=FANE# C-RCFM9EREN!-AB R<A= -MPR<EEMEN! PR<*EC!5 of the Arterial Road Bin0s =evelop ent Project, Phase -E, located in Catanduanes Province, under *B-C BIA No. P+AP$;), to China Road 8 Bridge Corporation. ---. Ghether or not the Contract Agree ent e"ecuted b/ and between the Republic of the Philippines, through the =epart ent of Public Gor0s and +ighwa/s, and the China Road 8 Bridge Corporation, for the i ple entation of civil wor0s for CP-, #an Andres 4C<=<N5A E-RACA*C! BA!<AE-6A R<A= 4CA!AN=FANE# C-RCFM9EREN!-AB R<A= -MPR<EEMEN! PR<*EC!5 of the Arterial Road Bin0s =evelop ent Project, Phase -E, located in Catanduanes Province, under *B-C BIA No. P+AP$;), is void ab initio. -E. Ghether or not Petitioners are entitled to the issuance of a Grit of Prohibition per anentl/ prohibiting the i ple entation of =PG+ Resolution No. P*+BAAA;)A;'$ and the Contract Agree ent e"ecuted b/ and between the Republic of the Philippines 4through the =epart ent of Public Gor0s and +ighwa/s5 and the China Road 8 Bridge Corporation, and the disburse ent of public funds b/ the C=Depart ent of CBDudget and CMDanage ent for such purpose. E. Ghether or not Petitioners are entitled to a Preli inar/ -njunction andIor a !e porar/ Restraining <rder i ediatel/ enjoining the i ple entation of =PG+ Resolution No. P*+BAAA;)A;'$ and the Contract Agree ent e"ecuted b/ and between the Republic of the Philippines 4through the =epart ent of Public Gor0s and +ighwa/s5 and the China Road 8 Bridge Corporation, and the disburse ent of

public funds b/ the =epart ent of Budget and Manage ent for such purpose, during the pendenc/ of this case.'& Preli inaril/, the petitioners assert that the/ have standing or locus standi to file the instant petition. !he/ clai that as ta"pa/ers and concerned citi1ens, the/ have the right and dut/ to .uestion the e"penditure of public funds on illegal acts. !he/ point out that the Philippine 6overn ent allocates a pesoA counterpart for CP -, which a ount is appropriated b/ Congress in the 6eneral Appropriations Act? hence, funds that are being utili1ed in the i ple entation of the .uestioned project also parta0e of ta"pa/ersR one/. !he present action, as a ta"pa/ersR suit, is thus allegedl/ proper. !he/ li0ewise characteri1e the instant petition as one of transcendental i portance that warrants the CourtRs adoption of a liberal stance on the issue of standing. -t cited several cases where the Court brushed aside procedural technicalities in order to resolve issues involving para ount public interest and transcendental i portance.': 9urther, petitioner Aba/a asserts that he possesses the re.uisite standing as a for er e ber of the +ouse of Representatives and one of the principal authors of Republic Act No. (':) 4RA (':)5'( 0nown as the 6overn ent Procure ent Refor Act, the law allegedl/ violated b/ the public respondents. <n the substantive issues, the petitioners anchor the instant petition on the contention that the award of the contract to private respondent China Road 8 Bridge Corporation violates RA (':), particularl/ #ection 2' thereof which reads> #EC. 2'. Ceiling for Bid Prices. U !he ABC shall be the upper li it or ceiling for the Bid prices. Bid prices that e"ceed this ceiling shall be dis.ualified outright fro further participating in the bidding. !here shall be no lower li it to the a ount of the award. -n relation thereto, the petitioners cite the definition of the ABC, thus> #EC. %. =efinition of !er s. U """ 4a5 Approved Budget for the Contract 4ABC5. U refers to the budget for the contract dul/ approved b/ the +ead of the Procuring Entit/, as provided for in the 6eneral Appropriations Act andIor continuing appropriations, in the case of National 6overn ent Agencies? the Corporate Budget for the contract approved b/ the governing Boards, pursuant to E.<. No. %':, series of '(&(, in the case of 6overn entA<wned andIor Controlled Corporations, 6overn ent 9inancial -nstitutions and #tate Fniversities and Colleges? and the Budget for the contract approved b/ the respective #anggunian, in the case of Bocal 6overn ent Fnits. """ !he petitioners theori1e that the foregoing provisions show the andator/ character of ceilings or upper li its of ever/ bid. Fnder the aboveA.uoted provisions of RA (':), all bids or awards should not e"ceed the ceilings or upper li its? otherwise, the contract is dee ed void and ine"istent.

Resolution No. P*+BAAA;)A;'$ was allegedl/ issued with grave abuse of discretion because it reco ended the award of the contract to private respondent China Road 8 Bridge Corporation whose bid was ore than P$;; illion overpriced based on the ABC. As such, the award is allegedl/ illegal and unconscionable. -n this connection, the petitioners opine that the contract subse.uentl/ entered into b/ and between the =PG+ and private respondent China Road 8 Bridge Corporation is void ab initio for being prohibited b/ RA (':). !he/ stress that #ection 2' thereof e"pressl/ provides that @bid prices that e"ceed this ceiling shall be dis.ualified outright fro participating in the bidding.@ !he upper li it or ceiling is called the ABC and since the bid of private respondent China Road 8 Bridge Corporation e"ceeded the ABC for the CP project, it should have been allegedl/ dis.ualified fro the bidding process and should not, b/ law, have been awarded the said contract. !he/ invo0e Article ');( of the Civil Code> AR!. ');(. !he following contracts are ine"istent and void fro the beginning> 4'5 !hose whose cause, object or purpose is contrar/ to law, orals, good custo s, public order or public polic/? 4$5 !hose which are absolutel/ si ulated or fictitious? 425 !hose whose cause or object did not e"ist at the ti e of the transaction? 4)5 !hose whose object is outside the co erce of en? 4%5 !hose which conte plate an i possible service? 435 !hose where the intention of the parties relative to the principal object of the contract cannot be ascertained? 4&5 !hose e"pressl/ prohibited or declared void b/ law. 9or violating the above provision, the contract between the =PG+ and private respondent China Road 8 Bridge Corporation is allegedl/ ine"istent and void ab initio and can produce no effects whatsoever. -t is the contention of the petitioners that RA (':) is applicable to both localA and foreignAfunded procure ent contracts. !he/ cite the following e"cerpt of the deliberations of the Bica eral Conference Co ittee on the =isagreeing Provisions of #enate Bill No. $$): and +ouse Bill No. ):;(> $; REP. ABAHA. Mr. Chair an, can we just propose additional a end entsM Can we go bac0 to #ection ), Mr. Chair anM !+E C+A-RMAN 4#EN. AN6ARA5. #ectionM #ection ano, =el, )M =efinition U definition of ter s. REP. ABAHA. #a +ouse bill, it is sa scope and application. !+E C+A-RMAN 4#EN. AN6ARA5. <0a/. REP. ABAHA. -t should read as follows> @!his Act shall appl/ to the procure ent of goods, supplies and aterials, infrastructure projects and consulting services regardless of funding source whether local or foreign b/ the govern ent.@

!+E C+A-RMAN 4#EN. AN6ARA5. <0a/, accepted. Ge accept. !he #enate accepts it.$' """ """ """ !+E C+A-RMAN 4#EN AN6ARA5. *ust ta0e note of that ano. Med/o nga proble atic Q/an eh. Now, just for the record =el, can /ou repeat again the justification for including foreign funded contracts within the scope para alinaw because the Gorld Ban0 daw ight raise so e objection to it. REP. ABAHA. Gell, Mr. Chair an, we should include foreign funded projects 0asi these are the big projects. !o give an e"a ple, if /ou allow bids above govern ent esti ate, letRs sa/ ta0e the case of %;; illion project, included in that %;; illion is the $; percent profit. -f /ou allow the to bid above govern ent esti ate, the/ will add another sa/ $: percent of 4sic5 2; percent, 2; percent of %;; illion is another '%; illion. -to, this is a rich source of graft one/, aregluhan na lang, '%; illion, five contractors will gather, @< eto $; illion, $; illion, $; illion.@ #o, it is rigged. QHun ang practice na nang/a/ari. -f we eli inate that, if we have a ceiling then, it will not be ver/ te pting 0asi walang e"tra one/ na pwedeng ibiga/ sa ibang contractor. #o this pro ote 4sic5 collusion a ong bidders, of course, with the cooperation of irresponsible officials of so e agencies. #o we should have a ceiling to include foreign funded projects.$$ !he petitioners insist that Boan Agree ent No. P+AP$;) between the *B-C and the Philippine 6overn ent is neither a treat/, an international nor an e"ecutive agree ent that would bar the application of RA (':). !he/ point out that to be considered a treat/, an international or an e"ecutive agree ent, the parties ust be two sovereigns or #tates whereas in the case of Boan Agree ent No. P+AP$;), the parties are the Philippine 6overn ent and the *B-C, a ban0ing agenc/ of *apan, which has a separate juridical personalit/ fro the *apanese 6overn ent. !he/ further insist on the applicabilit/ of RA (':) contending that while it too0 effect on *anuar/ $3, $;;2$2 and Boan Agree ent No. P+AP$;) was e"ecuted prior thereto or on =ece ber $:, '(((, the actual procure ent or award of the contract to private respondent China Road 8 Bridge Corporation was done after the effectivit/ of RA (':). !he said law is allegedl/ specific as to its application, which is on the actual procure ent of infrastructure and other projects onl/, and not on the loan agree ents attached to such projects. !hus, the petition onl/ pra/s for the annul ent of Resolution No. P*+BAAA;)A;'$ as well as the contract between the =PG+ and private respondent China Road 8 Bridge Corporation. !he petitioners clarif/ that the/ do not pra/ for the annul ent of Boan Agree ent No. P+AP$;). #ince the subject procure ent and award of the contract were done after the effectivit/ of RA (':), necessaril/, the procure ent rules established b/ that law allegedl/ appl/, and not Presidential =ecree No. '%() 4P= '%()5 $) and E"ecutive <rder No. ); 4E< );5, series of $;;', $% as contended b/ the respondents. !he latter laws, including their i ple enting rules, have allegedl/ been repealed b/ RA (':). Even RA ):3;, as a ended, 0nown as the 9oreign Borrowings Act, the petitioners posit, a/ have also been

repealed or odified b/ RA (':) insofar as its provisions are inconsistent with the latter. !he petitioners also argue that the @- ple enting Rules and Regulations 4-RR5 of RA (':), <therwise ,nown as the 6overn ent Procure ent Refor Act, Part A@ 4-RRAA5 cited b/ the respondents is not applicable as these rules onl/ govern do esticall/Afunded procure ent contracts. !he/ aver that the i ple enting rules to govern foreignAfunded procure ent, as in the present case, have /et to be drafted and in fact, there are concurrent resolutions drafted b/ both houses of Congress for the Reconvening of the *oint Congressional <versight Co ittee for the for ulation of the -RR for foreignAfunded procure ents under RA (':). !he petitioners aintain that disburse ent of public funds to i ple ent a patentl/ void and illegal contract is itself illegal and ust be enjoined. !he/ bring to the CourtRs attention the fact that the wor0s on the CP - project have alread/ co enced as earl/ as <ctober $;;). !he/ thus urge the Court to issue a writ of certiorari to set aside Resolution No. P*+BAAA;)A;'$ as well as to declare null and void the contract entered into between the =PG+ and private respondent China Road 8 Bridge Corporation. !he/ also pra/ for the issuance of a te porar/ restraining order and, eventuall/, a writ of prohibition to per anentl/ enjoin the =PG+ fro i ple enting Resolution No. P*+BAAA ;)A;'$ and its contract with private respondent China Road 8 Bridge Corporation as well as the =BM fro disbursing funds for the said purpose. !he RespondentsR CounterAArgu ents !he public respondents, na el/ the =PG+, =BM and =<9, and their respective na ed officials, through the <ffice of the #olicitor 6eneral, urge the Court to dis iss the petition on grounds that the petitioners have no locus standi and, in an/ case, Resolution No. P*+BAAA;)A;'$ and the contract between the =PG+ and private respondent China Road 8 Bridge Corporation are valid. According to the public respondents, a ta"pa/erRs locus standi was recogni1ed in the following cases> 4a5 where a ta" easure is assailed as unconstitutional?$3 4b5 where there is a .uestion of validit/ of election laws? $& 4c5 where legislators .uestioned the validit/ of an/ official action upon the clai that it infringes on their prerogatives as legislators? $: 4d5 where there is a clai of illegal disburse ent or wastage of public funds through the enforce ent of an invalid or unconstitutional law? $( 4e5 where it involves the right of e bers of the #enate or +ouse of Representatives to .uestion the validit/ of a presidential veto or condition i posed on an ite in an appropriation bill?2; or 4f5 where it involves an invalid law, which when enforced will put the petitioner in i inent danger of sustaining so e direct injur/ as a result thereof, or that he has been or is about to be denied so e right or privilege to which he is lawfull/ entitled or that he is about to be subjected to so e burdens or penalties b/ reason of the statute co plained of.2' None of the above considerations allegedl/ obtains in the present case. -t is also the view of the public respondents that the fact that petitioner Aba/a was a for er law a0er would not suffice to confer locus standi on hi self.

Me bers of Congress a/ properl/ challenge the validit/ of an official act of an/ depart ent of the govern ent onl/ upon showing that the assailed official act affects or i pairs their rights and prerogatives as legislators. !he public respondents further assail the standing of the petitioners to file the instant suit clai ing that the/ failed to allege an/ specific injur/ suffered nor an interest that is direct and personal to the . -f at all, the interest or injuries clai ed b/ the petitioners are allegedl/ erel/ of a general interest co on to all e bers of the public. !heir interest is allegedl/ too vague, highl/ speculative and uncertain to satisf/ the re.uire ents of locus standi. !he public respondents find it noteworth/ that the petitioners do not raise issues of constitutionalit/ but onl/ of contract law, which the petitioners not being privies to the agree ent cannot raise. !his is following the principle that a stranger to a contract cannot sue either or both the contracting parties to annul and set aside the sa e e"cept when he is prejudiced on his rights and can show detri ent which would positivel/ result to hi fro the i ple entation of the contract in which he has no intervention. !here being no particulari1ed interest or ele ental substantial injur/ necessar/ to confer locus standi, the public respondents i plore the Court to dis iss the petition. <n the erits, the public respondents aintain that the i position of ceilings or upper li its on bid prices in RA (':) does not appl/ because the CP project and the entire Catanduanes Circu ferential Road - prove ent Project, financed b/ Boan Agree ent No. P+AP$;) e"ecuted between the Philippine 6overn ent and the *B-C, is governed b/ the latterRs Procure ent 6uidelines which precludes the i position of ceilings on bid prices. #ection %.;3 of the *B-C Procure ent 6uidelines reads> #ection %.;3. Evaluation and Co parison of Bids. """ 4e5 An/ procedure under which bids above or below a predeter ined bid value assess ent are auto aticall/ dis.ualified is not per itted. -t was e"plained that other foreign ban0s such as the Asian =evelop ent Ban0 4A=B5 and the Gorld Ban0 4GB5 si ilarl/ prohibit the brac0eting or i position of a ceiling on bid prices. !he public respondents stress that it was pursuant to Boan Agree ent No. P+AP$;) that the assailed Resolution No. P*+BAAA;)A;'$ and the subse.uent contract between the =PG+ and private respondent China Road 8 Bridge Corporation ateriali1ed. !he/ li0ewise aver that Boan Agree ent No. P+AP$;) is governed b/ RA ):3;, as a ended, or the 9oreign Borrowings Act. #ection ) thereof states> #EC. ). -n the contracting of an/ loan, credit or indebtedness under this Act, the President of the Philippines a/, when necessar/, agree to waive or odif/, the application of an/ law granting preferences or i posing restrictions on international co petitive bidding, including a ong others CAct No. )$2(, Co onwealth Act No. '2:D, the provisions of CCA %)'D, insofar as such provisions do not pertain to constructions pri aril/ for national defense or securit/ purposes, CRA %':2D? Provided, however, !hat as far as

practicable, utili1ation of the services of .ualified do estic fir s in the prosecution of projects financed under this Act shall be encouraged> Provided, further, !hat in case where international co petitive bidding shall be conducted preference of at least fifteen per centu shall be granted in favor of articles, aterials or supplies of the growth, production or anufacture of the Philippines> Provided, finall/, !hat the ethod and procedure in co parison of bids shall be the subject of agree ent between the Philippine 6overn ent and the lending institution. =<* <pinion No. )3, #eries of '(:&, is relied upon b/ the public respondents as it opined that an agree ent for the e"clusion of foreign assisted projects fro the coverage of local bidding regulations does not contravene e"isting legislations because the statutor/ basis for foreign loan agree ents is RA ):3;, as a ended, and under #ection ) thereof, the President is e powered to waive the application of an/ law i posing restrictions on the procure ent of goods and services pursuant to such loans. Me orandu Circular Nos. ';) and ';:, issued b/ the President, to clarif/ RA ):3;, as a ended, and P= '%(), relative to the award of foreignA assisted projects, are also invo0ed b/ the public respondents, to wit> Me orandu Circular No. ';)> -n view of the provisions of #ection ) of Republic Act No. ):3;, as a ended, otherwise 0nown as the @9oreign Borrowings Act@ """ -t is hereb/ clarified that foreignAassisted infrastructure projects a/ be e"e pted fro the application for the pertinent provisions of the - ple enting Rules and Regulations 4-RR5 of Presidential =ecree 4P.=.5 No. '%() relative to the ethod and procedure in the co parison of bids, which atter a/ be the subject of agree ent between the infrastructure agenc/ concerned and the lending institution. -t should be ade clear however that public bidding is still re.uired and can onl/ be waived pursuant to e"isting laws. Me orandu Circular No. ';:> -n view of the provisions of #ection ) of Republic Act No. ):3;, as a ended, otherwise 0nown as the @9oreign Borrowings Act@, it is hereb/ clarified that, for projects supported in whole or in part b/ foreign assistance awarded through international or local co petitive bidding, the govern ent agenc/ concerned a/ award the contract to the lowest evaluated bidder at his bid price consistent with the provisions of the applicable loanIgrant agree ent. #pecificall/, when the loanIgrant agree ent so stipulates, the govern ent agenc/ concerned a/ award the contract to the lowest bidder even if hisIits bid e"ceeds the approved agenc/ esti ate. -t is understood that the concerned govern ent agenc/ shall, as far as practicable, adhere closel/ to the i ple enting rules and regulations of Presidential =ecree No. '%() during loanIgrant negotiation and the i ple entation of the projects.2$

!he public respondents characteri1e foreign loan agree ents, including Boan Agree ent No. P+AP$;), as e"ecutive agree ents and, as such, should be observed pursuant to the funda ental principle in international law of pacta sunt servanda.22 !he/ cite #ection $; of Article E-- of the Constitution as giving the President the authorit/ to contract foreign loans> #EC. $;. !he President a/ contract or guarantee foreign loans on behalf of the Republic of the Philippines with the prior concurrence of the Monetar/ Board, and subject to such li itations as a/ be provided b/ law. !he Monetar/ Board shall, within thirt/ da/s fro the end of ever/ .uarter of the calendar /ear, sub it to the Congress a co plete report of its decisions on applications for loans to be contracted or guaranteed b/ the 6overn ent or 6overn entAowned and Controlled Corporations which would have the effect of increasing the foreign debt, and containing other atters as a/ be provided b/ law. !he Constitution, the public respondents e phasi1e, recogni1es the enforceabilit/ of e"ecutive agree ents in the sa e wa/ that it recogni1es generall/ accepted principles of international law as for ing part of the law of the land.2) !his recognition allegedl/ buttresses the binding effect of e"ecutive agree ents to which the Philippine 6overn ent is a signator/. -t is pointed out b/ the public respondents that e"ecutive agree ents are essentiall/ contracts governing the rights and obligations of the parties. A contract, being the law between the parties, ust be faithfull/ adhered to b/ the . 6uided b/ the funda ental rule of pacta sunt servanda, the Philippine 6overn ent bound itself to perfor in good faith its duties and obligations under Boan Agree ent No. P+AP$;). !he public respondents further argue against the applicabilit/ of RA (':) stating that it was signed into law on *anuar/ ';, $;;2. 2% <n the other hand, Boan Agree ent No. P+AP$;) was e"ecuted on =ece ber $:, '(((, where the laws then in force on govern ent procure ents were P= '%() and E< );. !he latter law 4E< );5, in particular, e"cluded fro its application @an/ e"isting and future govern ent co it ents with respect to the bidding and award of contracts financed partl/ or wholl/ with funds fro international financing institutions as well as fro bilateral and other si ilar foreign sources.@ !he applicabilit/ of E< );, not RA (':), is allegedl/ bolstered b/ the fact that the @-nvitation to Pre.ualif/ and to Bid@ for the i ple entation of the CP project was published in two leading national newspapers, na el/, the Manila !i es and Manila #tandard on Nove ber $$, $( and =ece ber %, $;;$, or before the signing into law of RA (':) on *anuar/ ';, $;;2. -n this connection, the public respondents point to #ection && of -RRAA, which reads> #EC. &&. !ransitor/ Clause. U -n all procure ent activities, if the advertise ent or invitation for bids was issued prior to the effectivit/ of the Act, the provisions of E< ); and its -RR, P= '%() and its -RR, RA &'3; and its -RR, or other applicable laws as the case a/ be, shall govern.

-n cases where the advertise ents or invitations for bids were issued after the effectivit/ of the Act but before the effectivit/ of this -RRAA, procuring entities a/ continue adopting the procure ent procedures, rules and regulations provided in E< ); and its -RR, or other applicable laws, as the case a/ be. #ection ) of RA (':) is also invo0ed b/ the public respondents as it provides> #EC. ). #cope and Applications. U !his Act shall appl/ to the Procure ent of -nfrastructure Projects, 6oods and Consulting #ervices, regardless of source of funds, whether local or foreign, b/ all branches and instru entalities of govern ent, its depart ents, offices and agencies, including govern entA owned andIor Ucontrolled corporations and local govern ent units, subject to the provisions of Co onwealth Act No. '2:. An/ treat/ or international or e"ecutive agree ent affecting the subject atter of this Act to which the Philippine govern ent is a signator/ shall be observed. -t is also the position of the public respondents that even granting arguendo that Boan Agree ent No. P+AP$;) were an ordinar/ loan contract, still, RA (':) is inapplicable under the nonAi pair ent clause23 of the Constitution. !he said loan agree ent e"pressl/ provided that the procure ent of goods and services for the project financed b/ the sa e shall be governed b/ the 6uidelines for Procure ent under <EC9 Boans dated =ece ber '((&. 9urther, #ection %.;3 of the *B-C Procure ent 6uidelines categoricall/ provides that @CaDn/ procedure under which bids above or below a predeter ined bid value assess ent are auto aticall/ dis.ualified is not per itted.@ !he public respondents e"plain that since the contract is the law between the parties and Boan Agree ent No. P+AP$;) states that the *B-C Procure ent 6uidelines shall govern the partiesR relationship and further dictates that there be no ceiling price for the bidding, it naturall/ follows that an/ subse.uent law passed contrar/ to the letters of the said contract would have no effect with respect to the partiesR rights and obligations arising therefro . !o insist on the application of RA (':) on the bidding for the CP - project would, notwithstanding the ter s and conditions of Boan Agree ent No. P+A P$;), allegedl/ violate the constitutional provision on nonAi pair ent of obligations and contracts, and destro/ vested rights dul/ ac.uired under the said loan agree ent. Bastl/, the public respondents den/ that there was illegal disburse ent of public funds b/ the =BM. !he/ asseverate that all the releases ade b/ the =BM for the i ple entation of the entire Arterial Road Bin0s Project U Phase -E, which includes the Catanduanes Circu ferential Road - prove ent Project, were covered b/ the necessar/ appropriations ade b/ law, specificall/ the 6eneral Appropriations Act 46AA5. 9urther, the re.uire ents and procedures prescribed for the release of the said funds were dul/ co plied with. 9or its part, private respondent China Road 8 Bridge Corporation si ilarl/ assails the standing of the petitioners, either as ta"pa/ers or, in the case of

petitioner Aba/a, as a for er law a0er, to file the present suit. -n addition, it is also alleged that, b/ filing the petition directl/ to this Court, the petitioners failed to observe the hierarch/ of courts. <n the erits, private respondent China Road 8 Bridge Corporation asserts that the applicable law to govern the bidding of the CP - project was E< );, not RA (':), because the for er was the law governing the procure ent of govern ent projects at the ti e that it was bidded out. E< ); was issued b/ the <ffice of the President on <ctober :, $;;' and #ection ' thereof states that> #EC. '. #cope and Application. !his E"ecutive <rder shall appl/ to the procure ent of> 4a5 goods, supplies, aterials and related services? 4b5 civil wor0s? and 4c5 consulting services, b/ all National 6overn ent agencies, including #tate Fniversities and Colleges 4#FCs5, 6overn entA<wned or Controlled Corporations 46<CCs5 and 6overn ent 9inancial -nstitutions 469-s5, hereb/ referred to as the QAgencies.R !his E"ecutive <rder shall cover the procure ent process fro the preAprocure ent conference up to the award of contract. """ !he -nvitation to Pre.ualif/ and to Bid was first published on Nove ber $$, $;;$. <n the other hand, RA (':) was signed into law onl/ on *anuar/ ';, $;;2. #ince the law in effect at the ti e the procure ent process was initiated was E< );, private respondent China Road 8 Bridge Corporation sub its that it should be the said law which should govern the entire procure ent process relative to the CP - project. E< ); e"pressl/ recogni1es as an e"ception fro the application of the provisions thereof on approved budget ceilings, those projects financed b/ international financing institutions 4-9-s5 and foreign bilateral sources. #ection ' thereof, .uoted in part earlier, further states> #EC. '. #cope and Application. " " " Nothing in this <rder shall negate an/ e"isting and future govern ent co it ents with respect to the bidding and award of contracts financed partl/ or wholl/ with funds fro international financing institutions as well as fro bilateral and other si ilar foreign sources. #ection '.$ of the - ple enting Rules and Regulations of E< ); is li0ewise invo0ed as it provides> 9or procure ent financed wholl/ or partl/ fro <fficial =evelop ent Assistance 4<=A5 funds fro -nternational 9inancing -nstitutions 4-9-s5, as well as fro bilateral and other si ilar foreign sources, the corresponding loanIgrant agree ent governing said funds as negotiated and agreed upon b/ and between the 6overn ent and the concerned -9- shall be observed. Private respondent China Road 8 Bridge Corporation thus postulates that following E< );, the procure ent of goods and services for the CP - project should be governed b/ the ter s and conditions of Boan Agree ent No. P+A P$;) entered into between the *B-C and the Philippine 6overn ent.

Pertinentl/, #ection %.;3 of the *B-C Procure ent 6uidelines prohibits the setting of ceilings on bid prices. Private respondent China Road 8 Bridge Corporation clai s that when it sub itted its bid for the CP - project, it relied in good faith on the provisions of E< );. -t was allegedl/ on the basis of the said law that the =PG+ awarded the project to private respondent China Road 8 Bridge Coporation even if its bid was higher than the ABC. Fnder the circu stances, RA (':) could not be applied retroactivel/ for to do so would allegedl/ i pair the vested rights of private respondent China Road 8 Bridge Corporation arising fro its contract with the =PG+. -t is also contended b/ private respondent China Road 8 Bridge Corporation that even assu ing arguendo that RA (':) could be applied retroactivel/, it is still the ter s of Boan Agree ent No. P+AP$;) which should govern the procure ent of goods and services for the CP - project. -t supports its theor/ b/ characteri1ing the said loan agree ent, e"ecuted pursuant to the E"change of Notes between the 6overn ent of *apan and the Philippine 6overn ent, as an e"ecutive agree ent. Private respondent China Road 8 Bridge Corporation, li0e the public respondents, cites RA ):3; as the basis for the E"change of Notes and Boan Agree ent No. P+AP$;). As an international or e"ecutive agree ent, the E"change of Notes and Boan Agree ent No. P+AP$;) allegedl/ created a legall/ binding obligation on the parties. !he following e"cerpt of the deliberations of the Bica eral Conference Co ittee on the =isagreeing Provision of #enate Bill No. $$): and +ouse Bill No. ):;( is cited b/ private respondent China Road 8 Bridge Corporation to support its contention that it is the intent of the law a0ers to e"clude fro the application of RA (':) those foreignAfunded projects> """ REP. MARC<#. Hes, Mr. Chair an, to respond and to put into the record, a justification for the inclusion of foreign contracts, a/ we just state that foreign contracts have, of course, been brought into the a bit of the law because of the 9ilipino counterpart for this foreign projects, the/ are no longer strictl/ foreign in nature but fall under the laws of the Philippine govern ent. !+E C+A-RMAN 4#EN. AN6ARA5. <0a/. - thin0 thatRs prett/ clear. - thin0 the possible concern is that so e <=A are with strings attached especiall/ the *apanese. !he *apanese are .uite strict about that, that the/ are 4sic5 even provide the architect and the design, etcetera, plus, of course, the goods that will be supplied. Now, - thin0 weRve alread/ provided that this is open to all and we will recogni1e our international agree ents so that this bill will not also restrict the flow of foreign funding, because so e countries now a0e it a condition that the/ suppl/ both services and goods especiall/ the *apanese. #o - thin0 we can put a sentence that we continue to honor our international obligations, di ba BauraM

MR. ENCARNAC-<N. Actuall/, subject to an/ treat/. !+E C+A-RMAN 4#EN. AN6ARA5. QHun pala eh. !hat should alla/ their an"iet/ and concern. <0a/, buti na lang for the record para ala an nila na we are conscious sa <=A.2& Private respondent China Road 8 Bridge Corporation sub its that based on the provisions of the E"change of Notes and Boan Agree ent No. P+AP$;), it was rightfull/ and legall/ awarded the CP - project. -t urges the Court to dis iss the petition for lac0 of erit. !he CourtRs Rulings Petitioners, as ta"pa/ers, possess locus standi to file the present suit Briefl/ stated, locus standi is @a right of appearance in a court of justice on a given .uestion.@2: More particularl/, it is a part/Rs personal and substantial interest in a case such that he has sustained or will sustain direct injur/ as a result of the govern ental act being challenged. -t calls for ore than just a generali1ed grievance. !he ter @interest@ eans a aterial interest, an interest in issue affected b/ the decree, as distinguished fro ere interest in the .uestion involved, or a ere incidental interest. 2( #tanding or locus standi is a peculiar concept in constitutional law); and the rationale for re.uiring a part/ who challenges the constitutionalit/ of a statute to allege such a personal sta0e in the outco e of the controvers/ is @to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largel/ depends for illu ination of difficult constitutional .uestions.@)' Bocus standi, however, is erel/ a atter of procedure )$ and it has been recogni1ed that in so e cases, suits are not brought b/ parties who have been personall/ injured b/ the operation of a law or an/ other govern ent act but b/ concerned citi1ens, ta"pa/ers or voters who actuall/ sue in the public interest.)2 Conse.uentl/, the Court, in a catena of cases,)) has invariabl/ adopted a liberal stance on locus standi, including those cases involving ta"pa/ers. !he prevailing doctrine in ta"pa/erRs suits is to allow ta"pa/ers to .uestion contracts entered into b/ the national govern ent or govern entA owned or controlled corporations allegedl/ in contravention of law. )% A ta"pa/er is allowed to sue where there is a clai that public funds are illegall/ disbursed, or that public one/ is being deflected to an/ i proper purpose, or that there is a wastage of public funds through the enforce ent of an invalid or unconstitutional law.)3 #ignificantl/, a ta"pa/er need not be a part/ to the contract to challenge its validit/.)& -n the present case, the petitioners are suing as ta"pa/ers. !he/ have sufficientl/ de onstrated that, notwithstanding the fact that the CP - project is pri aril/ financed fro loans obtained b/ the govern ent fro the *B-C, nonetheless, ta"pa/ersR one/ would be or is being spent on the project considering that the Philippine 6overn ent is re.uired to allocate a pesoA counterpart therefor. !he public respondents the selves ad it that appropriations for these foreignAassisted projects in the 6AA are co posed

of the loan proceeds and the pesoAcounterpart. !he counterpart funds, the #olicitor 6eneral e"plains, refer to the co ponent of the project cost to be financed fro govern entAappropriated funds, as part of the govern entRs co it ent in the i ple entation of the project.): +ence, the petitioners correctl/ asserted their standing since a part of the funds being utili1ed in the i ple entation of the CP - project parta0es of ta"pa/ersR one/. 9urther, the serious legal .uestions raised b/ the petitioners, e.g., whether RA (':) applies to the CP - project, in particular, and to foreignAfunded govern ent projects, in general, and the fact that public interest is indubitabl/ involved considering the public e"penditure of illions of pesos, warrant the Court to adopt in the present case its liberal polic/ on locus standi. -n an/ case, for reasons which will be discussed shortl/, the substantive argu ents raised b/ the petitioners fail to persuade the Court as it holds that Resolution No. P*+BAAA;)A;'$ is valid. As a corollar/, the subse.uent contract entered into b/ and between the =PG+ and private respondent China Road 8 Bridge Corporation is li0ewise valid. +istor/ of Philippine Procure ent Baws -t is necessar/, at this point, to give a brief histor/ of Philippine laws pertaining to procure ent through public bidding. !he Fnited #tates Philippine Co ission introduced the A erican practice of public bidding through Act No. $$, enacted on <ctober '%, '(;;, b/ re.uiring the Chief Engineer, Fnited #tates Ar / for the =ivision of the Philippine -slands, acting as purchasing agent under the control of the then Militar/ 6overnor, to advertise and call for a co petitive bidding for the purchase of the necessar/ aterials and lands to be used for the construction of highwa/s and bridges in the Philippine -slands.)( Act No. &), enacted on *anuar/ $', '(;' b/ the Philippine Co ission, re.uired the 6eneral #uperintendent of Public -nstruction to purchase office supplies through co petitive public bidding. %; Act No. :$, approved on *anuar/ 2', '(;', and Act No. :2, approved on 9ebruar/ 3, '(;', re.uired the unicipal and provincial govern ents, respectivel/, to hold co petitive public biddings in the a0ing of contracts for public wor0s and the purchase of office supplies.%' <n *une $', '(;', the Philippine Co ission, through Act No. ')3, created the Bureau of #uppl/ and with its creation, public bidding beca e a popular polic/ in the purchase of supplies, aterials and e.uip ent for the use of the national govern ent, its subdivisions and instru entalities. %$ <n 9ebruar/ 2, '(23, then President Manuel B. Kue1on issued E"ecutive <rder No. '3 declaring as a atter of general polic/ that govern ent contracts for public service or for furnishing supplies, aterials and e.uip ent to the govern ent should be subjected to public bidding.%2 !he re.uire ent of public bidding was li0ewise i posed for public wor0s of construction or repair pursuant to the Revised Ad inistrative Code of '('&. !hen President =iosdado Macapagal, in E"ecutive <rder No. ); dated *une ', '(32, reiterated the directive that no govern ent contract for public service or for furnishing supplies, aterials and e.uip ent to the govern ent

or an/ of its branches, agencies or instru entalities, should be entered into without public bidding e"cept for ver/ e"traordinar/ reasons to be deter ined b/ a Co ittee constituted thereunder. !hen President 9erdinand Marcos issued P= '%() prescribing guidelines for govern ent infrastructure projects and #ection )%) thereof stated that the/ should generall/ be underta0en b/ contract after co petitive public bidding. !hen President Cora1on A.uino issued E"ecutive <rder No. 2;' 4'(:&5 prescribing guidelines for govern ent negotiated contracts. Pertinentl/, #ection 3$ of the Ad inistrative Code of '(:& reiterated the re.uire ent of co petitive public bidding in govern ent projects. -n '((;, Congress passed RA 3(%&,%% which authori1ed the financing, construction, operation and aintenance of infrastructure b/ the private sector. RA &'3; was li0ewise enacted b/ Congress in '((' and it contains provisions governing the procure ent of goods and locall/Afunded civil wor0s b/ the local govern ent units. !hen President 9idel Ra os issued E"ecutive <rder No. 2;$ 4'((35, providing guidelines for the procure ent of goods and supplies b/ the national govern ent. !hen President *oseph Ejercito Estrada issued E"ecutive <rder No. $;' 4$;;;5, providing additional guidelines in the procure ent of goods and supplies b/ the national govern ent. !hereafter, he issued E"ecutive <rder No. $3$ 4$;;;5 a ending E< 2;$ 4'((35 and E< $;' 4$;;;5. <n <ctober :, $;;', President 6loria MacapagalAArro/o issued E< );, the law ainl/ relied upon b/ the respondents, entitled Consolidating Procure ent Rules and Procedures for All National 6overn ent Agencies, 6overn entA<wned or Controlled Corporations and 6overn ent 9inancial -nstitutions, and Re.uiring the Fse of the 6overn ent Procure ent #/ste . -t accordingl/ repealed, a ended or odified all e"ecutive issuances, orders, rules and regulations or parts thereof inconsistent therewith. %3 <n *anuar/ ';, $;;2, President Arro/o signed into law RA (':). -t too0 effect on *anuar/ $3, $;;), or fifteen da/s after its publication in two newspapers of general circulation.%& -t e"pressl/ repealed, a ong others, E< );, E< $3$ 4$;;;5, E< 2;$4'((35 and P= '%(), as a ended> #EC. &3. Repealing Clause. 7!his law repeals E"ecutive <rder No. );, series of $;;', entitled @Consolidating Procure ent Rules and Procedures for All National 6overn ent Agencies, 6overn ent <wned or Controlled Corporations andIor 6overn ent 9inancial -nstitutions, and Re.uiring the Fse of the 6overn ent Electronic Procure ent #/ste @? E"ecutive <rder No. $3$, series of '((3, entitled @A ending E"ecutive <rder No. 2;$, series of '((3, entitled Providing Policies, 6uidelines, Rules and Regulations for the Procure ent of 6oodsI#upplies b/ the National 6overn ent@ and #ection 2 of E"ecutive <rder No. $;', series of $;;;, entitled @Providing Additional Policies and 6uidelines in the Procure ent of 6oodsI#upplies b/ the National 6overn ent@? E"ecutive <rder No. 2;$, series of '((3, entitled @Providing Policies, 6uidelines, Rules and Regulations for the Procure ent of 6oodsI#upplies b/ the National 6overn ent@ and Presidential =ecree No.

'%() dated *une '', '(&:, entitled @Prescribing Policies, 6uidelines, Rules and Regulations for 6overn ent -nfrastructure Contracts.@ !his law a ends !itle #i", Boo0 !wo of Republic Act No. &'3;, otherwise 0nown as the @Bocal 6overn ent Code of '(('@? the relevant provisions of E"ecutive <rder No. '3), series of '(:&, entitled @Providing Additional 6uidelines in the Processing and Approval of Contracts of the National 6overn ent@? and the relevant provisions of Republic Act No. &:(: dated 9ebruar/ $2, '((%, entitled @An Act Providing for the Moderni1ation of the Ar ed 9orces of the Philippines and for <ther Purposes.@ An/ other law, presidential decree or issuance, e"ecutive order, letter of instruction, ad inistrative order, procla ation, charter, rule or regulation andIor parts thereof contrar/ to or inconsistent with the provisions of this Act is hereb/ repealed, odified or a ended accordingl/. -n addition to these laws, RA ):3;, as a ended, ust be entioned as #ection ) thereof provides that @CiDn the contracting of an/ loan, credit or indebtedness under this Act, the President of the Philippines a/, when necessar/, agree to waive or odif/ the application of an/ law granting preferences or i posing restrictions on international co petitive bidding " " " Provided, finall/, !hat the ethod and procedure in the co parison of bids shall be the subject of agree ent between the Philippine 6overn ent and the lending institution.@ E< );, not RA (':), is applicable to the procure ent process underta0en for the CP - project. RA (':) cannot be given retroactive application. -t is not disputed that with respect to the CP - project, the -nvitation to Pre.ualif/ and to Bid for its i ple entation was published in two leading national newspapers, na el/, the Manila !i es and Manila #tandard on Nove ber $$, $( and =ece ber %, $;;$. At the ti e, the law in effect was E< );. <n the other hand, RA (':) too0 effect two onths later or on *anuar/ $3, $;;2. 9urther, its full i ple entation was even dela/ed as -RRAA was onl/ approved b/ President Arro/o on #epte ber ':, $;;2 and subse.uentl/ published on #epte ber $2, $;;2 in the Manila !i es and Mala/a newspapers.%: !he provisions of E< ); appl/ to the procure ent process pertaining to the CP - project as it is e"plicitl/ provided in #ection ' thereof that> #EC. '. #cope and Application. U !his E"ecutive <rder shall appl/ to see procure ent of 4a5 goods, supplies, aterials and related service? 4b5 civil wor0s? and 4c5 consulting services, b/ all National 6overn ent agencies, including #tate Fniversities and Colleges 4#FCs5, 6overn entA<wned or U Controlled Corporations 46<CCs5 and 6overn ent 9inancial -nstitutions 469-s5, hereb/ referred to as @Agencies.@ !his E"ecutive <rder shall cover the procure ent process fro the preAprocure ent conference up to the award of the contract. Nothing in this <rder shall negate an/ e"isting and future govern ent co it ents with respect to the bidding and award of contracts financed

partl/ or wholl/ with funds fro international financing institutions as well as fro bilateral and si ilar foreign sources. !he procure ent process basicall/ involves the following steps> 4'5 preA procure ent conference? 4$5 advertise ent of the invitation to bid? 425 preAbid conference? 4)5 eligibilit/ chec0 of prospective bidders? 4%5 sub ission and receipt of bids? 435 odification and withdrawal of bids? 4&5 bid opening and e"a ination? 4:5 bid evaluation? 4(5 post .ualification? 4';5 award of contract and notice to proceed.%( Clearl/ then, when the -nvitation to Pre.ualif/ and to Bid for the i ple entation of the CP - project was published on Nove ber $$, $( and =ece ber %, $;;$, the procure ent process thereof had alread/ co enced and the application of E< ); to the procure ent process for the CP - project had alread/ attached. RA (':) cannot be applied retroactivel/ to govern the procure ent process relative to the CP - project because it is well settled that a law or regulation has no retroactive application unless it e"pressl/ provides for retroactivit/. 3; -ndeed, Article ) of the Civil Code is clear on the atter> @ClDaws shall have no retroactive effect, unless the contrar/ is provided.@ -n the absence of such categorical provision, RA (':) will not be applied retroactivel/ to the CP project whose procure ent process co enced even before the said law too0 effect. !hat the legislators did not intend RA (':) to have retroactive effect could be gleaned fro the -RRAA for ulated b/ the *oint Congressional <versight Co ittee 4co posed of the Chair an of the #enate Co ittee on Constitutional A end ents and Revision of Baws, and two e bers thereof appointed b/ the #enate President and the Chair an of the +ouse Co ittee on Appropriations, and two e bers thereof appointed b/ the #pea0er of the +ouse of Representatives5 and the 6overn ent Procure ent Polic/ Board 46PPB5. #ection && of the -RRAA states, thus> #EC. &&. !ransitor/ Clause -n all procure ent activities, if the advertise ent or invitation for bids was issued prior to the effectivit/ of the Act, the provisions of E.<. ); and its -RR, P.=. '%() and its -RR, R.A. &'3; and its -RR, or other applicable laws, as the case a/ be, shall govern. -n cases where the advertise ents or invitations for bids were issued after the effectivit/ of the Act but before the effectivit/ of this -RRAA, procuring entities a/ continue adopting the procure ent procedures, rules and regulations provided in E.<. ); and its -RR, P.=. '%() and its -RR, R.A. &'3; and its -RR, or other applicable laws, as the case a/ be. -n other words, under -RRAA, if the advertise ent of the invitation for bids was issued prior to the effectivit/ of RA (':), such as in the case of the CP project, the provisions of E< ); and its -RR, and P= '%() and its -RR in the case of national govern ent agencies, and RA &'3; and its -RR in the case of local govern ent units, shall govern. Ad ittedl/, -RRAA covers onl/ full/ do esticall/Afunded procure ent activities fro procure ent planning up to contract i ple entation and that it

is e"pressl/ stated that -RRAB for foreignAfunded procure ent activities shall be subject of a subse.uent issuance.3' Nonetheless, there is no reason wh/ the polic/ behind #ection && of -RRAA cannot be applied to foreignAfunded procure ent projects li0e the CP - project. #tated differentl/, the polic/ on the prospective or nonAretroactive application of RA (':) with respect to do esticall/Afunded procure ent projects cannot be an/ different with respect to foreignAfunded procure ent projects li0e the CP - project. -t would be incongruous, even absurd, to provide for the prospective application of RA (':) with respect to do esticall/Afunded procure ent projects and, on the other hand, as urged b/ the petitioners, appl/ RA (':) retroactivel/ with respect to foreignA funded procure ent projects. !o be sure, the law a0ers could not have intended such an absurdit/. !hus, in the light of #ection ' of E< );, #ection && of -RRAA, as well as the funda ental rule e bodied in Article ) of the Civil Code on prospectivit/ of laws, the Court holds that the procure ent process for the i ple entation of the CP - project is governed b/ E< ); and its -RR, not RA (':). Fnder E< );, the award of the contract to private respondent China Road 8 Bridge Corporation is valid #ection $% of E< ); provides that @CtDhe approved budget of the contract shall be the upper li it or ceiling of the bid price. Bid prices which e"ceed this ceiling shall be dis.ualified outright fro further participating in the bidding. !here shall be no lower li it to the a ount of the award. " " "@ -t should be observed that this te"t is al ost si ilar to the wording of #ection 2' of RA (':), relied upon b/ the petitioners in contending that since the bid price of private respondent China Road 8 Bridge Corporation e"ceeded the ABC, then it should not have been awarded the contract for the CP - project. Nonetheless, E< ); e"pressl/ recogni1es as an e"ception to its scope and application those govern ent co it ents with respect to bidding and award of contracts financed partl/ or wholl/ with funds fro international financing institutions as well as fro bilateral and other si ilar foreign sources. !he pertinent portion of #ection ' of E< ); is .uoted anew> #EC. '. #cope and Application. U " " " Nothing in this <rder shall negate an/ e"isting and future govern ent co it ents with respect to the bidding and award of contracts financed partl/ or wholl/ with funds fro international financing institutions as well as fro bilateral and si ilar foreign sources. -n relation thereto, #ection ) of RA ):3;, as a ended, was correctl/ cited b/ the respondents as li0ewise authori1ing the President, in the contracting of an/ loan, credit or indebtedness thereunder, @when necessar/, agree to waive or odif/ the application of an/ law granting preferences or i posing restrictions on international co petitive bidding " " ".@ !he said provision of law further provides that @the ethod and procedure in the co parison of bids shall be the subject of agree ent between the Philippine 6overn ent and the lending institution.@

Conse.uentl/, in accordance with these applicable laws, the procure ent of goods and services for the CP - project is governed b/ the corresponding loan agree ent entered into b/ the govern ent and the *B-C, i.e., Boan Agree ent No. P+AP$;). !he said loan agree ent stipulated that the procure ent of goods and services for the Arterial Road Bin0s =evelop ent Project 4Phase -E5, of which CP - is a co ponent, is to be governed b/ the *B-C Procure ent 6uidelines. #ection %.;3, Part -- 4-nternational Co petitive Bidding5 thereof .uoted earlier reads> #ection %.;3. Evaluation and Co parison of Bids """ 4e5 An/ procedure under which bids above or below a predeter ined bid value assess ent are auto aticall/ dis.ualified is not per itted. 3$ -t is clear that the *B-C Procure ent 6uidelines proscribe the i position of ceilings on bid prices. <n the other hand, it enjoins the award of the contract to the bidder whose bid has been deter ined to be the lowest evaluated bid. !he pertinent provision, .uoted earlier, is reiterated, thus> #ection %.;(. Award of Contract !he contract is to be awarded to the bidder whose bid has been deter ined to be the lowest evaluated bid and who eets the appropriate standards of capabilit/ and financial resources. A bidder shall not be re.uired as a condition of award to underta0e responsibilities or wor0 not stipulated in the specifications or to odif/ the bid.32 #ince these ter s and conditions are ade part of Boan Agree ent No. P+A P$;), the govern ent is obliged to observe and enforce the sa e in the procure ent of goods and services for the CP - project. As shown earlier, private respondent China Road 8 Bridge CorporationRs bid was the lowest evaluated bid, albeit $:.(%N higher than the ABC. -n accordance with the *B-C Procure ent 6uidelines, therefore, it was correctl/ awarded the contract for the CP - project. Even if RA (':) were to be applied retroactivel/, the ter s of the E"change of Notes dated =ece ber $&, '((( and Boan Agree ent No. P+AP$;) would still govern the procure ent for the CP - project 9or clarit/, #ection ) of RA (':) is .uoted anew, thus> #EC. ). #cope and Applications. U !his Act shall appl/ to the Procure ent of -nfrastructure Projects, 6oods and Consulting #ervices, regardless of source of funds, whether local or foreign, b/ all branches and instru entalities of govern ent, its depart ents, offices and agencies, including govern entA owned andIor Ucontrolled corporations and local govern ent units, subject to the provisions of Co onwealth Act No. '2:. An/ treat/ or international or e"ecutive agree ent affecting the subject atter of this Act to which the Philippine govern ent is a signator/ shall be observed. !he petitioners, in order to place the procure ent process underta0en for the CP - project within the a bit of RA (':), vigorousl/ assert that Boan Agree ent No. P+AP$;) is neither a treat/, an international agree ent nor

an e"ecutive agree ent. !he/ cite E"ecutive <rder No. )%( dated Nove ber $%, '((& where the three agree ents are defined in this wise> a5 -nternational agree ent U shall refer to a contract or understanding, regardless of no enclature, entered into between the Philippines and another govern ent in written for and governed b/ international law, whether e bodied in a single instru ent or in two or ore related instru ents. b5 !reaties U international agree ents entered into b/ the Philippines which re.uire legislative concurrence after e"ecutive ratification. !his ter a/ include co pacts li0e conventions, declarations, covenants and acts. c5 E"ecutive agree ents U si ilar to treaties e"cept that the/ do not re.uire legislative concurrence.3) !he petitioners ainl/ argue that Boan Agree ent No. P+AP$;) does not fall under an/ of the three categories because to be an/ of the three, an agree ent had to be one where the parties are the Philippines as a #tate and another #tate. !he *B-C, the petitioners aintain, is a *apanese ban0ing agenc/, which presu abl/ has a separate juridical personalit/ fro the *apanese 6overn ent. !he petitionersR argu ents fail to persuade. !he Court holds that Boan Agree ent No. P+AP$;) ta0en in conjunction with the E"change of Notes dated =ece ber $&, '((( between the *apanese 6overn ent and the Philippine 6overn ent is an e"ecutive agree ent. !o recall, Boan Agree ent No. P+AP$;) was e"ecuted b/ and between the *B-C and the Philippine 6overn ent pursuant to the E"change of Notes e"ecuted b/ and between Mr. Hoshihisa Ara, A bassador E"traordinar/ and Plenipotentiar/ of *apan to the Philippines, and then 9oreign Affairs #ecretar/ #ia1on, in behalf of their respective govern ents. !he E"change of Notes e"pressed that the two govern ents have reached an understanding concerning *apanese loans to be e"tended to the Philippines and that these loans were ai ed at pro oting our countr/Rs econo ic stabili1ation and develop ent efforts. Boan Agree ent No. P+AP$;) was subse.uentl/ e"ecuted and it declared that it was so entered b/ the parties @CiDn the light of the contents of the E"change of Notes between the 6overn ent of *apan and the 6overn ent of the Republic of the Philippines dated =ece ber $&, '(((, concerning *apanese loans to be e"tended with a view to pro oting the econo ic stabili1ation and develop ent efforts of the Republic of the Philippines.@ 3% Fnder the circu stances, the *B-C a/ well be considered an adjunct of the *apanese 6overn ent. 9urther, Boan Agree ent No. P+AP$;) is indubitabl/ an integral part of the E"change of Notes. -t for s part of the E"change of Notes such that it cannot be properl/ ta0en independent thereof. -n this connection, it is well to understand the definition of an @e"change of notes@ under international law. !he ter is defined in the Fnited Nations !reat/ Collection in this wise>

An @e"change of notes@ is a record of a routine agree ent that has an/ si ilarities with the private law contract. !he agree ent consists of the e"change of two docu ents, each of the parties being in the possession of the one signed b/ the representative of the other. Fnder the usual procedure, the accepting #tate repeats the te"t of the offering #tate to record its assent. !he signatories of the letters a/ be govern ent Ministers, diplo ats or depart ental heads. !he techni.ue of e"change of notes is fre.uentl/ resorted to, either because of its speed/ procedure, or, so eti es, to avoid the process of legislative approval.33 -t is stated that @treaties, agree ents, conventions, charters, protocols, declarations, e oranda of understanding, odus vivendi and e"change of notes@ all refer to @international instru ents binding at international law.@ 3& -t is further e"plained thatA Although these instru ents differ fro each other b/ title, the/ all have co on features and international law has applied basicall/ the sa e rules to all these instru ents. !hese rules are the result of long practice a ong the #tates, which have accepted the as binding nor s in their utual relations. !herefore, the/ are regarded as international custo ar/ law. #ince there was a general desire to codif/ these custo ar/ rules, two international conventions were negotiated. !he '(3( Eienna Convention on the Baw of !reaties 4@'(3( Eienna Convention@5, which entered into force on $& *anuar/ '(:;, contains rules for treaties concluded between #tates. !he '(:3 Eienna Convention on the Baw of !reaties between #tates and -nternational <rgani1ations 4@'(:3 Eienna Convention@5, which has still not entered into force, added rules for treaties with international organi1ations as parties. Both the '(3( Eienna Convention and the '(:3 Eienna Convention do not distinguish between the different designations of these instru ents. -nstead, their rules appl/ to all of those instru ents as long as the/ eet the co on re.uire ents.3: #ignificantl/, an e"change of notes is considered a for of an e"ecutive agree ent, which beco es binding through e"ecutive action without the need of a vote b/ the #enate or Congress. !he following dis.uisition b/ 9rancis B. #a/re, for er Fnited #tates +igh Co issioner to the Philippines, entitled @!he Constitutionalit/ of !rade Agree ent Acts,@ .uoted in Co issioner of Custo s v. Eastern #ea !rading,3( is apropos> Agree ents concluded b/ the President which fall short of treaties are co onl/ referred to as e"ecutive agree ents and are no less co on in our sche e of govern ent than are the ore for al instru ents U treaties and conventions. !he/ so eti es ta0e the for of e"change of notes and at other ti es that of ore for al docu ents deno inated @agree ents@ or @protocols@. !he point where ordinar/ correspondence between this and other govern ents ends and agree ents U whether deno inated e"ecutive agree ents or e"change of notes or otherwise U begin, a/ so eti es be difficult of read/ ascertain ent. -t would be useless to underta0e to discuss here the large variet/ of e"ecutive agree ents as such, concluded fro ti e to ti e. +undreds of e"ecutive agree ents, other than those entered into

under the tradeAagree ents act, have been negotiated with foreign govern ents. " " "&; !he E"change of Notes dated =ece ber $&, '(((, stated, inter alia, that the 6overn ent of *apan would e"tend loans to the Philippines with a view to pro oting its econo ic stabili1ation and develop ent efforts? Boan - in the a ount of H&(,:3%',;;;,;;; would be e"tended b/ the *B-C to the Philippine 6overn ent to i ple ent the projects in the Bist A 4including the Arterial Road Bin0s =evelop ent Project A Phase -E5? and that such loan 4Boan -5 would be used to cover pa/ ents to be ade b/ the Philippine e"ecuting agencies to suppliers, contractors andIor consultants of eligible source countries under such contracts as a/ be entered into between the for purchases of products andIor services re.uired for the i ple entation of the projects enu erated in the Bist A.&' Gith respect to the procure ent of the goods and services for the projects, it bears reiterating that as stipulated> 2. !he 6overn ent of the Republic of the Philippines will ensure that the products andIor services entioned in subAparagraph 4'5 of paragraph 2 of Part - and subAparagraph 4'5 of paragraph ) of Part -- are procured in accordance with the guidelines for procure ent of the Ban0, which set forth, inter alia, the procedures of international tendering to be followed e"cept where such procedures are inapplicable or inappropriate. &$ !he *B-C Procure ents 6uidelines, as .uoted earlier, forbids an/ procedure under which bids above or below a predeter ined bid value assess ent are auto aticall/ dis.ualified. #uccinctl/ put, it absolutel/ prohibits the i position of ceilings on bids. Fnder the funda ental principle of international law of pacta sunt servanda, &2 which is, in fact, e bodied in #ection ) of RA (':) as it provides that @CaDn/ treat/ or international or e"ecutive agree ent affecting the subject atter of this Act to which the Philippine govern ent is a signator/ shall be observed,@ the =PG+, as the e"ecuting agenc/ of the projects financed b/ Boan Agree ent No. P+AP$;), rightfull/ awarded the contract for the i ple entation of civil wor0s for the CP - project to private respondent China Road 8 Bridge Corporation. G+ERE9<RE, pre ises considered, the petition is =-#M-##E=. #< <R=ERE=. ROMEO .. C$LLE.O, SR. Associate *ustice GE C<NCFR> CONSUELO +N$RES-S$NTI$GO Associate *ustice M$. $LICI$ $USTRI$-M$RTINE= MINIT$ 8. CHICO-N$=$RIO Associate *ustice Asscociate *ustice A!!E #!A!- < N - attest that the conclusions in the above =ecision had been reached in consultation before the case was assigned to the writer of the opinion of the CourtRs =ivision.

CONSUELO +N$RES-S$NTI$GO Associate *ustice Chairperson C E R!- 9 - CA!- < N Pursuant to #ection '2, Article E--- of the Constitution and the =ivision ChairpersonRs Attestation, it is hereb/ certified that the conclusions in the above decision were reached in consultation before the case was assigned to the writer of the opinion of the CourtRs =ivision. RE+N$TO S. PUNO Chief *ustice Republic of the Philippines SUPREME COURT Manila EN ,$NC G.R. No. 173*34 October 9, 2**7 PH$RM$CEUTIC$L $N% HE$LTH C$RE $SSOCI$TION O THE PHILIPPINES, petitioner, vs. HE$LTH SECRET$R+ R$NCISCO T. %U>UE III9 HE$LTH UN%ER SECRET$RIES %R. ETHEL+N P. NIETO, %R. M$RG$RIT$ M. G$LON, $TT+. $LEC$N%ER $. P$%ILL$, P %R. .$%E . %EL MUN%O9 !"# $SSIST$NT SECRET$RIES %R. M$RIO C. 8ILL$8ER%E, %R. %$8I% .. LO=$%$, $N% %R. NEMESIO T. G$@O, respondents. %ECISION $USTRI$-M$RTINE=, J.< !he Court and all parties involved are in agree ent that the best nourish ent for an infant is otherJs il0. !here is nothing greater than for a other to nurture her beloved child straight fro her boso . !he ideal is, of course, for each and ever/ 9ilipino child to enjo/ the une.ualed benefits of breast il0. But how should this end be attainedM Before the Court is a petition for certiorari under Rule 3% of the Rules of Court, see0ing to nullif/ Ad inistrative <rder 4A.<.5 No. $;;3A;;'$ entitled, 2evise +mplementing 2ules an 2egulations o/ !*ecutive &r er ;o. <=, &ther$ise (no$n as 0he -'il. Co e,- 2elevant +nternational Agreements, Penali#ing :iolations 0hereo/, an /or &ther Purposes 4R-RR5. Petitioner posits that the R-RR is not valid as it contains provisions that are not constitutional and go be/ond the law it is supposed to i ple ent. Na ed as respondents are the +ealth #ecretar/, Fndersecretaries, and Assistant #ecretaries of the =epart ent of +ealth 4=<+5. 9or purposes of herein petition, the =<+ is dee ed i pleaded as a coArespondent since respondents issued the .uestioned R-RR in their capacit/ as officials of said e"ecutive agenc/.' E"ecutive <rder No. %' 4Mil0 Code5 was issued b/ President Cora1on A.uino on <ctober $:, '(:3 b/ virtue of the legislative powers granted to the

president under the 9reedo Constitution. <ne of the prea bular clauses of the Mil0 Code states that the law see0s to give effect to Article '' $ of the -nternational Code of Mar0eting of Breast il0 #ubstitutes 4-CMB#5, a code adopted b/ the Gorld +ealth Asse bl/ 4G+A5 in '(:'. 9ro '(:$ to $;;3, the G+A adopted several Resolutions to the effect that breastfeeding should be supported, pro oted and protected, hence, it should be ensured that nutrition and health clai s are not per itted for breast il0 substitutes. -n '((;, the Philippines ratified the -nternational Convention on the Rights of the Child. Article $) of said instru ent provides that #tate Parties should ta0e appropriate easures to di inish infant and child ortalit/, and ensure that all seg ents of societ/, speciall/ parents and children, are infor ed of the advantages of breastfeeding. <n Ma/ '%, $;;3, the =<+ issued herein assailed R-RR which was to ta0e effect on *ul/ &, $;;3. +owever, on *une $:, $;;3, petitioner, representing its e bers that are anufacturers of breast il0 substitutes, filed the present Petition for ertiorari and Prohibition with Pra/er for the -ssuance of a !e porar/ Restraining <rder 4!R<5 or Grit of Preli inar/ -njunction. !he ain issue raised in the petition is whether respondents officers of the =<+ acted without or in e"cess of jurisdiction, or with grave abuse of discretion a ounting to lac0 or e"cess of jurisdiction, and in violation of the provisions of the Constitution in pro ulgating the R-RR. 2 <n August '%, $;;3, the Court issued a Resolution granting a !R< enjoining respondents fro i ple enting the .uestioned R-RR. After the Co ent and Repl/ had been filed, the Court set the case for oral argu ents on *une '(, $;;&. !he Court issued an Advisor/ 46uidance for <ral Argu ents5 dated *une %, $;;&, to wit> !he Court hereb/ sets the following issues> '. Ghether or not petitioner is a real part/AinAinterest? $. Ghether Ad inistrative <rder No. $;;3A;;'$ or the Revised - ple enting Rules and Regulations 4R-RR5 issued b/ the =epart ent of +ealth 4=<+5 is not constitutional? $.' Ghether the R-RR is in accord with the provisions of E"ecutive <rder No. %' 4Mil0 Code5? $.$ Ghether pertinent international agree ents' entered into b/ the Philippines are part of the law of the land and a/ be i ple ented b/ the =<+ through the R-RR? -f in the affir ative, whether the R-RR is in accord with the international agree ents? $.2 Ghether #ections ), %4w5, $$, 2$, )&, and %$ of the R-RR violate the due process clause and are in restraint of trade? and $.) Ghether #ection '2 of the R-RR on !otal Effect provides sufficient standards. XXXXXXXXXXXXX ' 4'5 Fnited Nations Convention on the Rights of the Child? 4$5 the G+< and Fnicef @$;;$ 6lobal #trateg/ on -nfant and Houng Child

9eeding?@ and 425 various Gorld +ealth Asse bl/ 4G+A5 Resolutions. !he parties filed their respective e oranda. !he petition is partl/ i bued with erit. On the issue of petitioner@s standing Gith regard to the issue of whether petitioner a/ prosecute this case as the real part/AinAinterest, the Court adopts the view enunciated in E"ecutive #ecretar/ v. Court of Appeals,) to wit> !he odern view is that an association has standing to co plain of injuries to its e bers. !his view fuses the legal identit/ of an association with that of its e bers. $" !00oc1!t1o" 3!0 0t!"#1"2 to 61:e 071t 6or 1t0 ?or;er0 #e0/1te 1t0 :!c; o6 #1rect 1"tere0t 16 1t0 )e)ber0 !re !66ecte# b5 t3e !ct1o". $" or2!"1H!t1o" 3!0 0t!"#1"2 to !00ert t3e co"cer"0 o6 1t0 co"0t1t7e"t0. """" " " " Ge note that, under its Articles of -ncorporation, the respondent was organi1ed " " " to act as the representative of an/ individual, co pan/, entit/ or association on atters related to the anpower recruit ent industr/, and to perfor other acts and activities necessar/ to acco plish the purposes e bodied therein. !he re0/o"#e"t 10, t370, t3e !//ro/r1!te /!rt5 to !00ert t3e r123t0 o6 1t0 )e)ber0, bec!70e 1t !"# 1t0 )e)ber0 !re 1" e(er5 /r!ct1c!: 0e"0e 1#e"t1c!:. " " " T3e re0/o"#e"t J!00oc1!t1o"K 10 b7t t3e )e#17) t3ro723 ?31c3 1t0 1"#1(1#7!: )e)ber0 0ee; to )!;e )ore e66ect1(e t3e e4/re001o" o6 t3e1r (o1ce0 !"# t3e re#re00 o6 t3e1r 2r1e(!"ce0. % 4E phasis supplied5 which was reasserted in #uro" !agong Silang )ssociation' <nc. v. Huipco,3 where the Court ruled that an association has the legal personalit/ to represent its e bers because the results of the case will affect their vital interests.& +erein petitionerJs A ended Articles of -ncorporation contains a si ilar provision just li0e in E"ecutive #ecretar/, that the association is for ed @to represent directl/ or through approved representatives the phar aceutical and health care industr/ before the Philippine 6overn ent and an/ of its agencies, the edical professions and the general public.@ : !hus, as an organi1ation, petitioner definitel/ has an interest in fulfilling its avowed purpose of representing e bers who are part of the phar aceutical and health care industr/. Petitioner is dul/ authori1ed ( to ta0e the appropriate course of action to bring to the attention of govern ent agencies and the courts an/ grievance suffered b/ its e bers which are directl/ affected b/ the R-RR. Petitioner, which is andated b/ its A ended Articles of -ncorporation to represent the entire industr/, would be re iss in its duties if it fails to act on govern ental action that would affect an/ of its industr/ e bers, no atter how few or nu erous the/ are. +ence, petitioner, whose legal identit/ is dee ed fused with its e bers, should be considered as a

real part/AinAinterest which stands to be benefited or injured b/ an/ judg ent in the present action. On the constitutionality of the provisions of the +<++ 1r0t, the Court will deter ine if pertinent international instru ents adverted to b/ respondents are part of the law of the land. Petitioner assails the R-RR for allegedl/ going be/ond the provisions of the Mil0 Code, thereb/ a ending and e"panding the coverage of said law. !he defense of the =<+ is that the R-RR i ple ents not onl/ the Mil0 Code but also various international instru ents'; regarding infant and /oung child nutrition. -t is respondentsJ position that said international instru ents are dee ed part of the law of the land and therefore the =<+ a/ i ple ent the through the R-RR. !he Court notes that the following international instru ents invo0ed b/ respondents, na el/> 4'5 !he Fnited Nations Convention on the Rights of the Child? 4$5 !he -nternational Covenant on Econo ic, #ocial and Cultural Rights? and 425 the Convention on the Eli ination of All 9or s of =iscri ination Against Go en, onl/ provide in general ter s that steps ust be ta0en b/ #tate Parties to di inish infant and child ortalit/ and infor societ/ of the advantages of breastfeeding, ensure the health and wellAbeing of fa ilies, and ensure that wo en are provided with services and nutrition in connection with pregnanc/ and lactation. #aid instru ents do not contain specific provisions regarding the use or ar0eting of breast il0 substitutes. !he international instru ents that do have specific provisions regarding breast il0 substitutes are the -CMB# and various G+A Resolutions. Fnder the '(:& Constitution, international law can beco e part of the sphere of do estic law either b/ tr!"06or)!t1o" or 1"cor/or!t1o".'' !he transfor ation ethod re.uires that an international law be transfor ed into a do estic law through a constitutional echanis such as local legislation. !he incorporation ethod applies when, b/ ere constitutional declaration, international law is dee ed to have the force of do estic law. '$ !reaties beco e part of the law of the land through tr!"06or)!t1o" pursuant to Article E--, #ection $' of the Constitution which provides that @CnDo treat/ or international agree ent shall be valid and effective unless concurred in b/ at least twoAthirds of all the e bers of the #enate.@ !hus, treaties or conventional international law ust go through a process prescribed b/ the Constitution for it to be transfor ed into unicipal law that can be applied to do estic conflicts.'2 !he -CMB# and G+A Resolutions are not treaties as the/ have not been concurred in b/ at least twoAthirds of all e bers of the #enate as re.uired under #ection $', Article E-- of the '(:& Constitution. +owever, the -CMB# which was adopted b/ the G+A in '(:' had been transfor ed into do estic law through local legislation, the Mil0 Code. Conse.uentl/, it is the Mil0 Code that has the force and effect of law in this jurisdiction and not the -CMB# per se.

!he Mil0 Code is al ost a verbati reproduction of the -CMB#, but it is well to e phasi1e at this point that the Code did not adopt the provision in the ICM,S !b0o:7te:5 /ro31b1t1"2 !#(ert101"2 or other for s of pro otion to the general public of products within the scope of the -CMB#. -nstead, t3e M1:; Co#e e4/re00:5 /ro(1#e0 t3!t !#(ert101"2, /ro)ot1o", or ot3er )!r;et1"2 )!ter1!:0 )!5 be !::o?e# 16 07c3 )!ter1!:0 !re #7:5 !7t3or1He# !"# !//ro(e# b5 t3e I"ter-$2e"c5 Co))1ttee AI$CB . <n the other hand, #ection $, Article -- of the '(:& Constitution, to wit> #EC!-<N $. !he Philippines renounces war as an instru ent of national polic/, a opts the generally accepte principles o/ international la$ as part o/ the la$ o/ the lan and adheres to the polic/ of peace, e.ualit/, justice, freedo , cooperation and a it/ with all nations. 4E phasis supplied5 e bodies the 1"cor/or!t1o" ethod.') -n 5ijares v. +anada,'% the Court held thus> C6Denerall/ accepted principles of international law, b/ virtue of the incorporation clause of the Constitution, for part of the laws of the land even if the/ do not derive fro treat/ obligations. !he classical for ulation in international law sees those custo ar/ rules accepted as binding result fro the co bination CofD two ele ents> the established, widespread, and consistent practice on the part of #tates? and a ps/chological ele ent 0nown as the opinion juris 01(e "ece001t!te0 4opinion as to law or necessit/5. - plicit in the latter ele ent is a belief that the practice in .uestion is rendered obligator/ b/ the e"istence of a rule of law re.uiring it.'3 4E phasis supplied5 @6enerall/ accepted principles of international law@ refers to nor s of general or custo ar/ international law which are binding on all states, '& i.e., renunciation of war as an instru ent of national polic/, the principle of sovereign i unit/,': a personJs right to life, libert/ and due process,'( and pacta sunt servanda'$; a ong others. !he concept of @generall/ accepted principles of law@ has also been depicted in this wise> #o e legal scholars and judges loo0 upon certain @general principles of law@ as a pri ar/ source of international law because t3e5 3!(e t3e Ic3!r!cter o6 F70 r!t1o"!:eI !"# !re I(!:1# t3ro723 !:: ;1"#0 o6 37)!" 0oc1et1e0.I 4*udge !ana0a in his dissenting opinion in the '(33 #outh Gest Africa Case, '(33 -.C.*. $(35. <JConnell holds that certain priniciples are part of international law because t3e5 !re Ib!01c to :e2!: 050te)0 2e"er!::5I !"# 3e"ce /!rt o6 t3e F70 2e"t17). !hese principles, he believes, are established b/ a process of reasoning based on the co on identit/ of all legal s/ste s. -f there should be doubt or disagree ent, one ust loo0 to state practice and deter ine whether the unicipal law principle provides a just and acceptable solution. " " " $' 4E phasis supplied5 9r. *oa.uin 6. Bernas defines custo ar/ international law as follows> Custo or custo ar/ international law eans @a general and consistent practice of states followed b/ the fro a sense of legal

obligation Copinio jurisD.@ 4Restate ent5 T310 0t!te)e"t co"t!1"0 t3e t?o b!01c e:e)e"t0 o6 c70to)< t3e material /actor, that 10, 3o? 0t!te0 be3!(e, !"# t3e /05c3o:o21c!: or su)>ective /actor, t3!t 10, ?35 t3e5 be3!(e t3e ?!5 t3e5 #o. """" !he initial factor for deter ining the e"istence of custo is the actual behavior of states. !his includes several ele ents> duration, consistenc/, and generalit/ of the practice of states. !he re.uired duration can be either short or long. " " " """" =uration therefore is not the ost i portant ele ent. More i portant is the consistenc/ and the generalit/ of the practice. " " " """" <nce the e"istence of state practice has been established, it beco es necessar/ to deter ine wh/ states behave the wa/ the/ do. =o states behave the wa/ the/ do because t3e5 co"01#er 1t ob:12!tor5 to behave thus or #o t3e5 #o 1t o":5 !0 ! )!tter o6 co7rte05M &pinio >uris, or t3e be:1e6 t3!t ! cert!1" 6or) o6 be3!(1or 10 ob:12!tor5, 10 ?3!t )!;e0 /r!ct1ce !" 1"ter"!t1o"!: r7:e. Githout it, practice is not law.$$ 4Fnderscoring and E phasis supplied5 Clearl/, custo ar/ international law is dee ed incorporated into our do estic s/ste .$2 G+A Resolutions have not been e bodied in an/ local legislation. +ave the/ attained the status of custo ar/ law and should the/ then be dee ed incorporated as part of the law of the landM !he Gorld +ealth <rgani1ation 4G+<5 is one of the international speciali1ed agencies allied with the Fnited Nations 4FN5 b/ virtue of Article %&, $) in relation to Article 32$% of the FN Charter. Fnder the '()3 G+< Constitution, it is the G+A which deter ines the policies of the G+<, $3 and has the power to adopt regulations concerning @advertising and labeling of biological, phar aceutical and si ilar products oving in international co erce,@ $& and to @ a0e reco endations to e bers with respect to an/ atter within the co petence of the <rgani1ation.@$: !he legal effect of its regulations, as opposed to reco endations, is .uite different. Regulations, along with conventions and agree ents, dul/ adopted b/ the G+A b1"# )e)ber 0t!te0 thus> Article '(. !he +ealth Asse bl/ shall have authorit/ to adopt conventions or agree ents with respect to an/ atter within the co petence of the <rgani1ation. A twoAthirds vote of the +ealth Asse bl/ shall be re.uired for the adoption of such co"(e"t1o"0 or !2ree)e"t0, which 03!:: co)e 1"to 6orce 6or e!c3 Me)ber ?3e" !cce/te# b5 1t 1" !ccor#!"ce ?1t3 1t0 co"0t1t7t1o"!: /roce00e0. Article $;. E!c3 Me)ber 7"#ert!;e0 t3!t 1t ?1::, within eighteen onths after the adoption b/ the +ealth Asse bl/ of a convention or

agree ent, t!;e !ct1o" re:!t1(e to t3e !cce/t!"ce o6 07c3 co"(e"t1o" or !2ree)e"t. Each Me ber shall notif/ the =irectorA 6eneral of the action ta0en, and if it does not accept such convention or agree ent within the ti e li it, it will furnish a state ent of the reasons for nonAacceptance. -n case of acceptance, each Me ber agrees to a0e an annual report to the =irectorA 6eneral in accordance with Chapter L-E. Article $'. !he +ealth Asse bl/ shall have authorit/ to adopt regulations concerning> 4a5 sanitar/ and .uarantine re.uire ents and other procedures designed to prevent the international spread of disease? 4b5 no enclatures with respect to diseases, causes of death and public health practices? 4c5 standards with respect to diagnostic procedures for international use? 4d5 standards with respect to the safet/, purit/ and potenc/ of biological, phar aceutical and si ilar products oving in international co erce? 4e5 advertising and labeling of biological, phar aceutical and si ilar products oving in international co erce. Article $$. +egulations adopted pursuant to )rticle %4 shall come into force for all 5embers after due notice has been given of their adoption by the :ealth )ssembly e=cept for such 5embers as may notify the ,irector-General of rejection or reservations within the period stated in the notice. 4E phasis supplied5 <n the other hand, 7"#er $rt1c:e 23, reco))e"#!t1o"0 o6 t3e -H$ #o "ot co)e 1"to 6orce 6or )e)ber0, in the sa e wa/ that conventions or agree ents under Article '( and re27:!t1o"0 7"#er $rt1c:e 21 co e into force. Article $2 of the G+< Constitution reads> Article $2. !he +ealth Asse bl/ shall have authority to ma.e recommen ations to Me bers with respect to an/ atter within the co petence of the <rgani1ation. 4E phasis supplied5 !he absence of a provision in Article $2 of an/ echanis b/ which the reco endation would co e into force for e ber states is conspicuous. !he for er #enior Begal <fficer of G+<, #a i #hubber, stated that G+A reco endations are generall/ not binding, but the/ @carr/ oral and political weight, as the/ constitute the judg ent on a health issue of the collective e bership of the highest international bod/ in the field of health.@$( Even the -CMB# itself was adopted as a ere reco endation, as G+A Resolution No. 2).$$ states> @!he !hirt/A9ourth Gorld +ealth Asse bl/ " " " adopts, 1" t3e 0e"0e o6 $rt1c:e 23 o6 t3e Co"0t1t7t1o", the -nternational Code of Mar0eting of Breast il0 #ubstitutes anne"ed to the present resolution.@ 4E phasis supplied5 !he -ntroduction to the -CMB# also reads as follows> -n *anuar/ '(:', the E"ecutive Board of the Gorld +ealth <rgani1ation at its si"t/Aseventh session, considered the fourth draft of the code, endorsed it, and unani ousl/ reco ended to the

!hirt/Afourth Gorld +ealth Asse bl/ the te"t of a resolution b/ which 1t ?o7:# !#o/t t3e co#e 1" t3e 6or) o6 ! reco))e"#!t1o" r!t3er t3!" ! re27:!t1o". " " " 4E phasis supplied5 !he legal value of G+A Resolutions as reco endations is su ari1ed in Article 3$ of the G+< Constitution, to wit> Art. 3$. Each e ber shall report annuall/ on the action ta0en with respect to reco endations ade to it b/ the <rgani1ation, and with respect to conventions, agree ents and regulations. Apparentl/, the G+A Resolution adopting the -CMB# and subse.uent G+A Resolutions urging e ber states to i ple ent the -CMB# are erel/ reco endator/ and legall/ nonAbinding. T370, 7":1;e ?3!t 3!0 bee" #o"e ?1t3 t3e ICM,S ?3ereb5 t3e :e210:!t7re e"!cte# )o0t o6 t3e /ro(101o"0 1"to :!? ?31c3 10 t3e M1:; Co#e, t3e 07b0eE7e"t -H$ Re0o:7t1o"0,2; 0/ec161c!::5 /ro(1#1"2 6or e4c:701(e bre!0t6ee#1"2 6ro) *6 )o"t30, co"t1"7e# bre!0t6ee#1"2 7/ to 24 )o"t30, !"# !b0o:7te:5 /ro31b1t1"2 !#(ert10e)e"t0 !"# /ro)ot1o"0 o6 bre!0t)1:; 07b0t1t7te0, 3!(e "ot bee" !#o/te# !0 ! #o)e0t1c :!?. -t is propounded that G+A Resolutions a/ constitute @soft law@ or nonA binding nor s, principles and practices that influence state behavior. 2' @#oft law@ does not fall into an/ of the categories of international law set forth in Article 2:, Chapter --- of the '()3 #tatute of the -nternational Court of *ustice.2$ -t is, however, an e"pression of nonAbinding nor s, principles, and practices that influence state behavior. 22 Certain declarations and resolutions of the FN 6eneral Asse bl/ fall under this categor/. 2) !he ost notable is the FN =eclaration of +u an Rights, which this Court has enforced in various cases, specificall/, Government of :ong"ong Special )dministrative +egion v. Olalia,2% 5ejoff v. ,irector of #risons,23 5ijares v. +a9ada2& and Shangri-la <nternational :otel 5anagement' *td. v. ,evelopers Group of ompanies' <nc..2: !he Gorld -ntellectual Propert/ <rgani1ation 4G-P<5, a speciali1ed agenc/ attached to the FN with the andate to pro ote and protect intellectual propert/ worldwide, has resorted to soft law as a rapid eans of nor creation, in order @to reflect and respond to the changing needs and de ands of its constituents.@2( <ther international organi1ations which have resorted to soft law include the -nternational Babor <rgani1ation and the 9ood and Agriculture <rgani1ation 4in the for of the ode= )limentarius5.); G+< has resorted to soft law. !his was ost evident at the ti e of the #evere Acute Respirator/ #/ndro e 4#AR#5 and Avian flu outbrea0s. Although the +H2 2esolution oes not create ne$ international la$ )in ing on 1H& mem)er states, it provi es an e*cellent e*ample o/ the po$er o/ -so/t la$- in international relations. +nternational la$yers typically istinguish )in ing rules o/ international la$6-har la$-6/rom non6)in ing norms, principles, an practices that in/luence state )ehavior6-so/t la$.- 1H& has uring its e*istence generate many so/t la$

norms, creating a -so/t la$ regime- in international governance /or pu)lic health. !he @soft law@ #AR# and -+R Resolutions represent significant steps in la/ing the political groundwor0 for i proved international cooperation on infectious diseases. !hese resolutions clearl/ define G+< e ber statesJ nor ative dut/ to cooperate full/ with other countries and with G+< in connection with infectious disease surveillance and response to outbrea0s. 0his uty is neither )in ing nor en/orcea)le, )ut, in the $a.e o/ the SA2S epi emic, the uty is po$er/ul politically for two reasons. 9irst, the #AR# outbrea0 has taught the lesson that participating in, and enhancing, international cooperation on infectious disease controls is in a countr/Js selfAinterest " " " if this warning is heeded, the @soft law@ in the #AR# and -+R Resolution could infor the develop ent of general and consistent state practice on infectious disease surveillance and outbrea0 response, perhaps cr/stalli1ing eventuall/ into custo ar/ international law on infectious disease prevention and control.)' -n the Philippines, the e"ecutive depart ent i ple ented certain easures reco ended b/ G+< to address the outbrea0s of #AR# and Avian flu b/ issuing E"ecutive <rder 4E.<.5 No. $;' on April $3, $;;2 and E.<. No. $:; on 9ebruar/ $, $;;), delegating to various depart ents broad powers to close down schoolsIestablish ents, conduct health surveillance and onitoring, and ban i portation of poultr/ and agricultural products. -t ust be e phasi1ed that even under such an international e ergenc/, the dut/ of a state to i ple ent the -+R Resolution was still considered not binding or enforceable, although said resolutions had great political influence. As previousl/ discussed, for an international rule to be considered as custo ar/ law, it ust be established that such rule is being followed b/ states because the/ co"01#er 1t ob:12!tor5 to co pl/ with such rules 4opinio juris5. Respondents have not presented an/ evidence to prove that the G+A Resolutions, although signed b/ ost of the e ber states, were in fact enforced or practiced b/ at least a ajorit/ of the e ber states? neither have respondents proven that an/ co pliance b/ e ber states with said G+A Resolutions was obligator/ in nature. Respondents failed to establish that the provisions of pertinent G+A Resolutions are custo ar/ international law that a/ be dee ed part of the law of the land. Conse.uentl/, legislation is necessar/ to transfor the provisions of the G+A Resolutions into do estic law. T3e /ro(101o"0 o6 t3e -H$ Re0o:7t1o"0 c!""ot be co"01#ere# !0 /!rt o6 t3e :!? o6 t3e :!"# t3!t c!" be 1)/:e)e"te# b5 e4ec7t1(e !2e"c1e0 ?1t3o7t t3e "ee# o6 ! :!? e"!cte# b5 t3e :e210:!t7re. Seco"#, the Court will deter ine whether the =<+ a/ i ple ent the provisions of the G+A Resolutions b/ virtue of its powers and functions

under the Revised Ad inistrative Code even in the absence of a do estic law. #ection 2, Chapter ', !itle -L of the Revised Ad inistrative Code of '(:& provides that the =<+ shall #e61"e t3e "!t1o"!: 3e!:t3 /o:1c5 and i ple ent a national health plan within the fra ewor0 of the govern entJs general policies and plans, and 1007e or#er0 !"# re27:!t1o"0 co"cer"1"2 t3e 1)/:e)e"t!t1o" o6 e0t!b:103e# 3e!:t3 /o:1c1e0. -t is crucial to ascertain whether the absolute prohibition on advertising and other for s of pro otion of breast il0 substitutes provided in so e G+A Resolutions has been adopted as part of the national health polic/. Respondents sub it that the national polic/ on infant and /oung child feeding is e bodied in A.<. No. $;;%A;;'), dated Ma/ $2, $;;%. Basicall/, the Ad inistrative <rder declared the following polic/ guidelines> 4'5 ideal breastfeeding practices, such as earl/ initiation of breastfeeding, e"clusive breastfeeding for the first si" onths, e"tended breastfeeding up to two /ears and be/ond? 4$5 appropriate co ple entar/ feeding, which is to start at age si" onths? 425 icronutrient supple entation? 4)5 universal salt iodi1ation? 4%5 the e"ercise of other feeding options? and 435 feeding in e"ceptionall/ difficult circu stances. -ndeed, the pri ac/ of breastfeeding for children is e phasi1ed as a national health polic/. Ho?e(er, "o?3ere 1" $.O. No. 2**'-**14 10 1t #ec:!re# t3!t !0 /!rt o6 07c3 3e!:t3 /o:1c5, t3e !#(ert10e)e"t or /ro)ot1o" o6 bre!0t)1:; 07b0t1t7te0 03o7:# be !b0o:7te:5 /ro31b1te#. !he national polic/ of protection, pro otion and support of breastfeeding cannot auto aticall/ be e.uated with a total ban on advertising for breast il0 substitutes. -n view of the enact ent of the Mil0 Code which does not contain a total ban on the advertising and pro otion of breast il0 substitutes, but instead, specificall/ creates an -AC which will regulate said advertising and pro otion, it follows that a total ban polic/ could be i ple ented onl/ /7r07!"t to ! :!? a ending the Mil0 Code passed b/ the constitutionall/ authori1ed branch of govern ent, the legislature. !hus, onl/ the provisions of the Mil0 Code, but "ot t3o0e o6 07b0eE7e"t -H$ Re0o:7t1o"0, can be validl/ i ple ented b/ the =<+ through the subject R-RR. T31r#, the Court will now deter ine whether the provisions of the R-RR are in accordance with those of the Mil0 Code. -n support of its clai that the R-RR is inconsistent with the Mil0 Code, petitioner alleges the following> '. !he Mil0 Code li its its coverage to children ;A'$ onths old, but the R-RR e"tended its coverage to @/oung children@ or those fro ages two /ears old and be/ond>

a need to protect and pro ote breastfeeding and to infor the public about the proper use of breast il0 substitutes and supple ents and related products through ade.uate, consistent and objective infor ation and appropriate regulation of the ar0eting and distribution of the said substitutes, supple ents and related products? SECTION 4AeB. @-nfant@ eans a person falling within the age brac0et of ;A'$ onths.

the provision of safe and ade.uate infants and /oung children b/ the pr protection and support of breastfeed ensuring the proper use of breast i breast il0 supple ents and related when these are edicall/ indicated when necessar/, on the basis of ad infor ation and through appropriate and distribution. Sect1o" 'A66B. @Houng Child@ eans fro the age of ore than twelve 4' to the age of three 425 /ears 423 o $. !he Mil0 Code recogni1es that infant for ula a/ be a proper and possible substitute for breast il0 in certain instances? but the R-RR provides @e"clusive breastfeeding for infants fro ;A3 onths@ and declares that @there is no substitute nor replace ent for breast il0@> RIRR

MIL@ CO%E

-HERE$S, in order to ensure that safe and Sect1o" 4. %ec:!r!t1o" o6 Pr1"c1/: ade.uate nutrition for infants is provided, there is following are the underl/ing principl a need to protect and pro ote breastfeeding and the revised rules and regulations ar to infor the public about the proper use of upon> breast il0 substitutes and supple ents and a. E"clusive breastfeeding is for infa related products through ade.uate, consistent si" 435 onths. and objective infor ation and appropriate b. !here is no substitute or replace regulation of the ar0eting and distribution of the breast il0. said substitutes, supple ents and related products? 2. !he Mil0 Code onl/ regulates and does not i pose unreasonable re.uire ents for advertising and pro otion? R-RR i poses an absolute ban on such activities for breast il0 substitutes intended for infants fro ;A$) onths old or be/ond, and forbids the use of health and nutritional clai s. #ection '2 of the R-RR, which provides for a @total effect@ in the pro otion of products within the scope of the Code, is vague> MIL@ CO%E RIRR

SECTION 6. T3e Ge"er!: P7b:1c !"# Mot3er0. Q 4a5 No advertising, pro otion or other ar0eting aterials, whether written, audio or visual, for products within the scope of this Code shall be printed, published, distributed, e"hibited and MIL@ CO%E RIRR broadcast unless such aterials are dul/ authori1ed and approved b/ an interAagenc/ -HERE$S, in order to ensure that safe and Sect1o" 2. P7r/o0e Q !hese Revised Rules and coto ensure ittee created herein pursuant to the ade.uate nutrition for infants is provided, there is Regulations are hereb/ pro ulgated

Sect1o" 4. %ec:!r!t1o" o6 Pr1"c1/: following are the underl/ing principl the revised rules and regulations ar upon> """" f. Advertising, pro otions, or spons infant for ula, breast il0 substitute related products are prohibited. Sect1o" 11. Pro31b1t1o" Q No adve

applicable standards provided for in this Code.

pro otions, sponsorships, or ar0eting aterials e otional, intellectual abilities of the and activities for breast il0 substitutes intended /oung child and other li0e phrases s for infants and /oung children up to twent/Afour allowed. 4$)5 onths, shall be allowed, because the/ tend ). !he R-RR i poses additional labeling re.uire ents not found in to conve/ or give subli inal essages or the Mil0 Code> i pressions that under ine breast il0 and MIL@ CO%E RIRR breastfeeding or otherwise e"aggerate breast il0 Sect1o" 26. Co"te"t Q Each contai substitutes andIor replace ents, asSECTION well as 1*. Co"t!1"er0RL!be:. Q related products covered within the 4a5 scope of this andIor labels shall be designed to contain such essage, in both 9ilip Containers English languages, and which ess Code. provide the necessar/ infor ation about the be readil/ separated therefro , rela appropriate use of the products, and in such a Sect1o" 13. ITot!: E66ectI A Pro otion of following points> wa/ as not products within the scope of this Code ust beto discourage breastfeeding. 4a5 !he words or phrase @- portant objective and should not e.uate or 4b5 a0e the Each container shall have a clear, @6overn ent Garning@ or their e.ui product appear to be as good or e.ual to conspicuous and easil/ readable and breast il0 or breastfeeding in the advertising understandable essage in Pilipino or English 4b5 A state ent of the superiorit/ of concept. -t ust not in an/ case under ineon it, or on a label, which essage can printed breastfeeding? breast il0 or breastfeeding. !he @total not effect@ readil/ beco e separated fro it, and which 4c5 A state ent that there is no subs should not directl/ or indirectl/ suggest shallthat include the following points> breast il0? bu/ing their product would produce4i5 better the words @- portant Notice@ or their 4d5 A state ent that the product sha individuals, or resulting in greater love, e.uivalent? onl/ on the advice of a health wor0e intelligence, abilit/, har on/ or in an/ 4ii5 a anner state ent of the superiorit/ of breastfeeding? need for its use and the proper eth bring better health to the bab/ or other such 4iii5 a state ent that the product shall be used 4e5 -nstructions for appropriate prep e"aggerated and unsubstantiated clai . onl/ on the advice of a health wor0er as to the a warning against the health ha1ard Sect1o" 1'. Co"te"t o6 M!ter1!:0. need for its use and the proper ethods of use? inappropriate preparation? and following shall not be included in advertising, and 4f5 !he health ha1ards of unnecessa pro otional and ar0eting aterials> 4iv5 instructions for appropriate preparation, and a i proper use of infant for ula and o a. !e"ts, pictures, illustrations or infor ationagainst the health ha1ards of warning products including infor ation that p which discourage or tend to under inappropriate ine the preparation. infant for ula a/ contain pathoge benefits or superiorit/ of breastfeeding or which icroorganis s and ust be prepa ideali1e the use of breast il0 substitutes and il0 appropriatel/. supple ents. -n this connection, no pictures of %. !he Mil0 Code allows disse ination of infor ation on infant babies and children together with their others, for or ula to health professionals? the R-RR totall/ prohibits such fathers, siblings, grandparents, other relatives activit/> caregivers 4or /a/as5 shall be used in an/ MIL@ CO%E advertise ents for infant for ula and breast il0 supple ents? SECTION 7. He!:t3 C!re S50te). Q b. !he ter @hu ani1ed,@ @ aternali1ed,@ 4b5 No @close facilit/ of the health care s/ste shall be to otherJs il0@ or si ilar words inused describing for the purpose of pro oting infant for ula breast il0 substitutes or il0 supple ents? products within the scope of this Code. or other c. Pictures or te"ts that ideali1e the !his use of infant Code does not, however, preclude the and il0 for ula. disse ination of infor ation to health Sect1o" 16. All health and nutrition professionals clai s for as provided in #ection :4b5. products within the scope of the Code are SECTION &. He!:t3 -or;er0. A absolutel/ prohibited. 9or this purpose, an/ ation provided b/ anufacturers and 4b5 -nfor phrase or words that connotes to increase distributors to health professionals regarding RIRR

Sect1o" 22. No anufacturer, distri representatives of products covered shall be allowed to conduct or be in activit/ on breastfeeding pro otion, and production of -nfor ation, Educ Co unication 4-EC5 aterials on b holding of or participating as spea0e or se inars for wo en and children to avoid the use of these venues to brands or co pan/ na es.

products within the scope of this Code shall be SECTION 16. All health and nutrition 4f5clai Nothing s for herein contained shall prevent restricted to scientific and factual atters and products within the scope of the Code donations are fro anufacturers and distributors of such infor ation shall not i pl/ or create a belief absolutel/ prohibited. 9or this purpose, products an/ within the scope of this Code upon that bottleAfeeding is e.uivalent or superior to phrase or words that connotes to increase re.uest b/ or with the approval of the Ministr/ of breastfeeding. -t shall also include the infor ation e otional, intellectual abilities of the +ealth. infant and specified in #ection %4b5. /oung child and other li0e phrases shall not be allowed. 3. !he Mil0 Code per its il0 anufacturers and distributors to e"tend assistance in research and continuing education of health professionals? R-RR absolutel/ forbids the sa e.

these i ple enting rules and regula be strictl/ prohibited. Sect1o" '2. Ot3er %o"!t1o"0 ,5 M Co)/!"1e0 Not Co(ere# b5 t310 C =onations of products, e.uip ents, not otherwise falling within the scop or these Rules, given b/ il0 co pa their agents, representatives, wheth in cash, a/ onl/ be coursed throug Agenc/ Co ittee 4-AC5, which sha whether such donation be accepted MIL@ CO%E RIRR :. !he R-RR provides for ad inistrative sanctions not i posed b/ SECTION &. He!:t3 -or;er0 U Sect1o" 4. %ec:!r!t1o" o6 Pr1"c1/:e0 Q the Mil0 Code. 4e5 Manufacturers and distributors of products !he following are the underl/ing principles fro MIL@ CO%E RIRR within the scope of this Code a/ assist in the which the revised rules and regulations are research, scholarships and continuing education, pre ised upon> Sect1o" 46. $#)1"10tr!t1(e S!"ct1 of health professionals, in accordance with the following ad inistrative sanctions sh i. Mil0 co panies, and their representatives, rules and regulations pro ulgated b/ the Ministr/ should not for part of an/ polic/ a0ing bod/ or i posed upon an/ person, juridical of +ealth. found to have violated the provision entit/ in relation to the advance ent of and its i ple enting Rules and Reg breasfeeding. a5 'st violation U Garning? SECTION 22. No anufacturer, distributor, or representatives of products covered b/ the Code b5 $nd violation U Ad inistrative fine shall be allowed to conduct or be involved in of !en !housand 4P';,;;;.;;5 to 9i activit/ on breastfeeding pro otion, education 4P%;,;;;.;;5 Pesos, depending on and production of -nfor ation, Education and and e"tent of the violation, including Co unication 4-EC5 aterials on breastfeeding, the offending product? holding of or participating as spea0ers in classes c5 2rd violation U Ad inistrative 9ine or se inars for wo en and children activities of #i"t/ !housand 4P3;,;;;.;;5 to < to avoid the use of these venues to ar0et their 9ift/ !housand 4P'%;,;;;.;;5 Peso brands or co pan/ na es. on the gravit/ and e"tent of the viola SECTION 32. Pr1)!r5 Re0/o"01b1:1t5 o6 He!:t3 addition thereto, the recall of the off -or;er0 A -t is the pri ar/ responsibilit/ of the product, and suspension of the Cert health wor0ers to pro ote, protect and support Product Registration 4CPR5? breastfeeding and appropriate infant and /oung d5 )th violation UAd inistrative 9ine child feeding. Part of this responsibilit/ is to of !wo +undred !housand 4P$;;,;; continuousl/ update their 0nowledge and s0ills on +undred 4P%;;,;;;.;;5 !housand P breastfeeding. No assistance, support, logistics depending on the gravit/ and e"ten or training fro il0 co panies shall be violation? and in addition thereto, the per itted. product, revocation of the CPR, sus the Bicense to <perate 4B!<5 for on &. !he Mil0 Code regulates the giving of donations? R-RR absolutel/ e5 %th and succeeding repeated viola prohibits it. Ad inistrative 9ine of <ne Million MIL@ CO%E RIRR 4P',;;;,;;;.;;5 Pesos, the recall o SECTION 6. T3e Ge"er!: P7b:1c !"# Mot3er0. Sect1o" '1. %o"!t1o"0 -1t31" t3e Sco/e o6 product, cancellation of the CPR, re Q T310 Co#e A =onations of products, aterials, the Bicense to <perate 4B!<5 of the defined and covered under the Mil0 Code and

or total concerned, including the blac0listing of the replace ent for breast il0, whether or not suitable for that purpose.@ T310 co"0/1c7o70:5 :!c;0 re6ere"ce to !"5 /!rt1c7:!r !2e-2ro7/ co pan/ to be furnished the =epart ent0ect1o" of o6 the c31:#re". He"ce, t3e /ro(101o" o6 t3e M1:; Co#e c!""ot be co"01#ere# Budget and Manage ent 4=BM5 and e4c:701(e 6or c31:#re" !2e# *-12 )o"t30. -n other words, breast il0 =epart ent of !rade and -ndustr/ 4=!-5? substitutes f5 An additional penalt/ of !wo !houAsand 9ive a/ also be intended for /oung children ore than '$ onths of age. !herefore, b/ regulating breast il0 substitutes, the Mil0 Code also +undred 4P$,%;;.;;5 Pesos per da/ shall be intends to protect and pro ote the nourish ent of children ore than '$ ade for ever/ da/ the violation continues after onths old. having received the order fro the -AC or other Evidentl/, as long as what is being ar0eted falls within the scope of the Mil0 such appropriate bod/, notif/ing and penali1ing Code as provided in #ection 2, then it can be subject to regulation pursuant the co pan/ for the infraction. to said law, even if the product is to be used b/ children aged over '$ 9or purposes of deter ining whether or not there onths. is @repeated@ violation, each product violation is, therefore, nothing objectionable with #ections $)$ and %4ff5)2 of the belonging or owned b/ a co pan/, !here including those of their subsidiaries, are dee R-RR. ed to be -t is and also incorrect for petitioner to sa/ that the R-RR, unli0e the Mil0 Code, violations of the concerned il0 co $. pan/ does not recogni1e that breast il0 substitutes a/ be a proper and possible shall not be based on the specific violating substitute for breast il0. product alone. !he entiret/ of the R-RR, not erel/ truncated portions thereof, ust be (. !he R-RR provides for repeal of e"isting laws to the contrar/. considered and construed together. As held in ,e *una v. #ascual,)) @CtDhe !he Court shall resolve the erits of the allegations of petitioner seriatim. particular words, clauses and phrases in the Rule should not be studied as '. Petitioner is ista0en in its clai that the Mil0 CodeJs coverage is li ited detached and isolated e"pressions, but the whole and ever/ part thereof onl/ to children ;A'$ onths old. #ection 2 of the Mil0 Code states> ust be considered in fi"ing the eaning of an/ of its parts and in order to #EC!-<N 2. Scope of the ode U !he Code applies to the produce a har onious whole.@ ar0eting, and practices related thereto, of the following products> #ection & of the R-RR provides that @when edicall/ indicated and onl/ when breast il0 substitutes, including infant for ula? other il0 products, necessar/, t3e 70e o6 bre!0t)1:; 07b0t1t7te0 10 /ro/er if based on foods and beverages, including bottleAfed co ple entar/ foods, co plete and updated infor ation.@ #ection : of the R-RR also states that when ar0eted or otherwise represented to be suitable, with or infor ation and educational aterials should include infor ation on the without odification, for use as a partial or total replace ent of proper use of infant for ula when the use thereof is needed. breast il0? feeding bottles and teats. -t also applies to their .ualit/ +ence, t3e RIRR, F70t :1;e t3e M1:; Co#e, !:0o reco2"1He0 t3!t 1" cert!1" and availabilit/, and to infor ation concerning their use. c!0e0, t3e 70e o6 bre!0t)1:; 07b0t1t7te0 )!5 be /ro/er. Clearl/, the coverage of the Mil0 Code is not dependent on the age of the 2. !he Court shall ascertain the erits of allegations 2 )% and ))3 together as child but on the ;1"# o6 /ro#7ct being ar0eted to the public. !he law treats the/ are interlin0ed with each other. infant for ula, bottleAfed co ple entar/ food, and breast il0 substitute as !o resolve the .uestion of whether the labeling re.uire ents and advertising separate and distinct product categories. regulations under the R-RR are valid, it is i portant to deal first with the #ection )4h5 of the Mil0 Code defines infant for ula as @a breast il0 nature, purpose, and depth of the regulator/ powers of the =<+, as defined substitute " " " to satisf/ the nor al nutritional re.uire ents of infants up to in general under the '(:& Ad inistrative Code,)& and as delegated in between four to si" onths of age, and adapted to their ph/siological particular under the Mil0 Code. characteristics@? while under #ection )4b5, bottleAfed co ple entar/ food +ealth is a legiti ate subject atter for regulation b/ the =<+ 4and certain refers to @an/ food, whether anufactured or locall/ prepared, suitable as a other ad inistrative agencies5 in e"ercise of police powers delegated to it. co ple ent to breast il0 or infant for ula, when either beco es insufficient !he sheer span of jurisprudence on that atter precludes the need to further to satisf/ the nutritional re.uire ents of the infant.@ An infant under #ection discuss it..): +owever, health infor ation, particularl/ advertising aterials on )4e5 is a person falling within the age brac0et ;A'$ onths. -t is the apparentl/ nonAto"ic products li0e breast il0 substitutes and supple ents, is nourish ent of this group of infants or children aged ;A'$ onths that is a relativel/ new area for regulation b/ the =<+. )( sought to be pro oted and protected b/ the Mil0 Code. As earl/ as the '('& Revised Ad inistrative Code of the Philippine -slands, %; But there is another target group. Breast il0 substitute is defined under health infor ation was alread/ within the a bit of the regulator/ powers of #ection )4a5 as @an/ food being ar0eted or otherwise presented as a partial

the predecessor of =<+.%' #ection (2: thereof charged it with the dut/ to protect the health of the people, and vested it with such powers as @4g5 the disse ination of h/gienic infor ation a ong the people and especially the inculcation o/ .no$le ge as to the proper care o/ in/ants and the ethods of preventing and co bating dangerous co unicable diseases.@ #event/ /ears later, the '(:& Ad inistrative Code tas0ed respondent =<+ to carr/ out the state polic/ pronounced under #ection '%, Article -- of the '(:& Constitution, which is @to protect and pro ote the right to health of the people and instill health consciousness a ong the .@%$ !o that end, it was granted under #ection 2 of the Ad inistrative Code the power to @435 propagate health infor ation and e ucate the population on i portant health, edical and environ ental atters which have health i plications.@ %2 Ghen it co es to infor ation regarding nutrition of infants and /oung children, however, the Mil0 Code specificall/ delegated to the Ministr/ of +ealth 4hereinafter referred to as =<+5 the power to ensure that there is ade.uate, consistent and objective infor ation on breastfeeding and use of breast il0 substitutes, supple ents and related products? and the power to co"tro: such infor ation. !hese are e"pressl/ provided for in #ections '$ and %4a5, to wit> #EC!-<N '$. <mplementation and 5onitoring U """" 4b5 !he Ministr/ of +ealth shall be principall/ responsible for the i ple entation and enforce ent of the provisions of this Code. 9or this purpose, the Ministr/ of +ealth shall have the following powers and functions> 4'5 !o pro ulgate such rules and regulations as are necessar/ or proper for the i ple entation of this Code and the acco plish ent of its purposes and objectives. """" 4)5 !o e"ercise such other powers and functions as a/ be necessar/ for or incidental to the attain ent of the purposes and objectives of this Code. #EC!-<N %. <nformation and 6ducation U 4a5 !he govern ent shall ensure that obFect1(e !"# co"010te"t infor ation is provided on infant feeding, for use b/ fa ilies and those involved in the field of infant nutrition. !his responsibilit/ shall cover the planning, provision, design and disse ination of infor ation, and the control thereof, on infant nutrition. 4E phasis supplied5 9urther, =<+ is authori1ed b/ the Mil0 Code to co"tro: the content of an/ infor ation on breast il0 vis-J-vis breast il0 substitutes, supple ent and related products, in the following anner> #EC!-<N %. " " " 4b5 -nfor ational and educational aterials, whether written, audio, or visual, dealing with the feeding of infants and intended to reach

pregnant wo en and others of infants, shall include clear infor ation on all the following points> 4'5 the benefits and superiorit/ of breastfeeding? 4$5 aternal nutrition, and the preparation for and aintenance of breastfeeding? 425 the negative effect on breastfeeding of introducing partial bottlefeeding? 4)5 the difficult/ of reversing the decision not to breastfeed? and 4%5 where needed, the proper use of infant for ula, whether anufactured industriall/ or ho eAprepared. 1hen such materials contain in/ormation a)out the use o/ in/ant /ormula, they shall inclu e the social an /inancial implications o/ its use? the health ha#ar s o/ inappropriate /oo s or /ee ing metho s? an , in particular, the health ha#ar s o/ unnecessary or improper use o/ in/ant /ormula an other )reastmil. su)stitutes. Such materials shall not use any picture or te*t $hich may i eali#e the use o/ )reastmil. su)stitutes. S6 T<O/ 0. :ealth ;or"ers K """" 4b5 -nfor ation provided b/ anufacturers and distributors to health professionals regarding products within the scope of this Code 03!:: be re0tr1cte# to 0c1e"t161c !"# 6!ct7!: )!tter0, !"# 07c3 1"6or)!t1o" 03!:: "ot 1)/:5 or cre!te ! be:1e6 t3!t bott:e6ee#1"2 10 eE71(!:e"t or 07/er1or to bre!0t6ee#1"2. It 03!:: !:0o 1"c:7#e t3e 1"6or)!t1o" 0/ec161e# 1" Sect1o" 'AbB. S6 T<O/ 4L. ontainersI*abel K 4a5 Containers andIor labels shall be designed to provide the necessar/ infor ation about the appropriate use of the products, and 1" 07c3 ! ?!5 !0 "ot to #10co7r!2e bre!0t6ee#1"2. """" 4d5 !he ter @hu ani1ed,@ @ aternali1ed@ or si ilar ter s shall not be used. 4E phasis supplied5 !he =<+ is also authori1ed to control the purpose of the infor ation and to who such infor ation a/ be disse inated under #ections 3 through ( of the Mil0 Code%) to ensure that the infor ation that would reach pregnant wo en, others of infants, and health professionals and wor0ers in the health care s/ste is restricted to scientific and factual atters and shall "ot i pl/ or create a belief that bottlefeeding is e.uivalent or superior to breastfeeding. -t bears e phasis, however, that the =<+Js power under the Mil0 Code to co"tro: infor ation regarding breast il0 vis-a-vis breast il0 substitutes 10 "ot !b0o:7te as the power to control does not enco pass the power to absolutel/ prohibit the advertising, ar0eting, and pro otion of breast il0 substitutes. !he following are the provisions of the Mil0 Code that une.uivocall/ indicate that the control over infor ation given to the =<+ is not absolute and that absolute prohibition is not conte plated b/ the Code>

a5 #ection $ which re.uires ade.uate infor ation and appropriate ar0eting and distribution of breast il0 substitutes, to wit> #EC!-<N $. )im of the ode K !he ai of the Code is to contribute to the provision of safe and ade.uate nutrition for infants b/ the protection and pro otion of breastfeeding and b/ ensuring the proper use of breast il0 substitutes and breast il0 supple ents when these are necessar/, on the basis of ade.uate infor ation and through appropriate ar0eting and distribution. b5 #ection 2 which specificall/ states that the Code applies to the ar0eting of and practices related to breast il0 substitutes, including infant for ula, and to infor ation concerning their use? c5 #ection %4a5 which provides that the govern ent shall ensure that objective and consistent infor ation is provided on infant feeding? d5 #ection %4b5 which provides that written, audio or visual infor ational and educational aterials shall not use an/ picture or te"t which a/ ideali1e the use of breast il0 substitutes and should include infor ation on the health ha1ards of unnecessar/ or i proper use of said product? e5 #ection 34a5 in relation to #ection '$4a5 which creates and e powers the -AC to review and e"a ine advertising, pro otion, and other ar0eting aterials? f5 #ection :4b5 which states that il0 co panies a/ provide infor ation to health professionals but such infor ation should be restricted to factual and scientific atters and shall not i pl/ or create a belief that bottlefeeding is e.uivalent or superior to breastfeeding? and g5 #ection '; which provides that containers or labels should not contain infor ation that would discourage breastfeeding and ideali1e the use of infant for ula. -t is in this conte"t that the Court now e"a ines the assailed provisions of the R-RR regarding labeling and advertising. #ections '2%% on @total effect@ and $3%3 of Rule E-- of the R-RR contain so e labeling re.uire ents, specificall/> a5 that there be a state ent that there is no substitute to breast il0? and b5 that there be a state ent that powdered infant for ula a/ contain pathogenic icroorganis s and ust be prepared and used appropriatel/. #ection '3%& of the R-RR prohibits all health and nutrition clai s for products within the scope of the Mil0 Code, such as clai s of increased e otional and intellectual abilities of the infant and /oung child. !hese re.uire ents and li itations are consistent with the provisions of #ection : of the Mil0 Code, to wit> #EC!-<N :. :ealth wor"ers A """"

4b5 -nfor ation provided b/ anufacturers and distributors to health professionals regarding products within the scope of this Code shall be re0tr1cte# to 0c1e"t161c !"# 6!ct7!: )!tter0, and such infor ation 03!:: "ot i pl/ or create a belief that bottlefeeding is e"uivalent or 07/er1or to breastfeeding. -t shall also include the infor ation specified in #ection %.%: 4E phasis supplied5 and #ection ';4d5%( which bars the use on containers and labels of the ter s @hu ani1ed,@ @ aternali1ed,@ or si ilar ter s. !hese provisions of the Mil0 Code e"pressl/ forbid infor ation that would i pl/ or create a belief that there is an/ il0 product e.uivalent to breast il0 or which is hu ani1ed or aternali1ed, as such infor ation would be inconsistent with the superiorit/ of breastfeeding. -t a/ be argued that #ection : of the Mil0 Code refers onl/ to infor ation given to health wor0ers regarding breast il0 substitutes, not to containers and labels thereof. +owever, such restrictive application of #ection :4b5 will result in the absurd situation in which il0 co panies and distributors are forbidden to clai to health wor0ers that their products are substitutes or e.uivalents of breast il0, and /et be allowed to displa/ on the containers and labels of their products the e"act opposite essage. !hat as0ewed interpretation of the Mil0 Code is precisel/ what #ection %4a5 thereof see0s to avoid b/ andating that all infor ation regarding breast il0 vis-a-vis breast il0 substitutes be consistent, at the sa e ti e giving the govern ent control over planning, provision, design, and disse ination of infor ation on infant feeding. !hus, #ection $34c5 of the R-RR which re.uires containers and labels to state that the product offered is not a substitute for breast il0, is a reasonable eans of enforcing #ection :4b5 of the Mil0 Code and deterring circu vention of the protection and pro otion of breastfeeding as e bodied in #ection $3; of the Mil0 Code. #ection $34f53' of the R-RR is an e.uall/ reasonable labeling re.uire ent. -t i ple ents #ection %4b5 of the Mil0 Code which reads> #EC!-<N %. " " " """" 4b5 -nfor ational and educational aterials, whether written, audio, or visual, dealing with the feeding of infants and intended to reach pregnant wo en and others of infants, shall include clear infor ation on all the following points> " " " 4%5 where needed, the proper use of infant for ula, whether anufactured industriall/ or ho eAprepared. Ghen such aterials contain infor ation about the use of infant for ula, the/ shall include the social and financial i plications of its use? the health ha#ar s o/ inappropriate /oo s or /ee ing metho s? an , in particular, the health ha#ar s o/ unnecessary or improper use o/ in/ant /ormula an other )reastmil. su)stitutes. #uch aterials shall not use an/ picture or

te"t which a/ ideali1e the use of breast il0 substitutes. 4E phasis supplied5 !he label of a product contains 1"6or)!t1o" about said product intended for the bu/ers thereof. !he bu/ers of breast il0 substitutes are others of infants, and #ection $3 of the R-RR erel/ adds a fair warning about the li0elihood of pathogenic icroorganis s being present in infant for ula and other related products when these are prepared and used inappropriatel/. PetitionerRs counsel has ad itted during the hearing on *une '(, $;;& that for ula il0 is prone to conta inations and there is as /et no technolog/ that allows production of powdered infant for ula that eli inates all for s of conta ination.3$ -neluctabl/, the re.uire ent under #ection $34f5 of the R-RR for the label to contain the essage regarding health ha1ards including the possibilit/ of conta ination with pathogenic icroorganis s is in accordance with #ection %4b5 of the Mil0 Code. !he authorit/ of =<+ to control infor ation regarding breast il0 vis-a-vis breast il0 substitutes and supple ents and related products cannot be .uestioned. -t is its intervention into the area of advertising, pro otion, and ar0eting that is being assailed b/ petitioner. -n furtherance of #ection 34a5 of the Mil0 Code, to wit> #EC!-<N 3. The General #ublic and 5others. U 4a5 No advertising, pro otion or other ar0eting aterials, whether written, audio or visual, for products within the scope of this Code shall be printed, published, distributed, e"hibited and broadcast unless such aterials are dul/ authori1ed and approved b/ an interA agenc/ co ittee created herein pursuant to the applicable standards provided for in this Code. the Mil0 Code invested regulator/ authorit/ over advertising, pro otional and ar0eting aterials to an -AC, thus> #EC!-<N '$. <mplementation and 5onitoring A 4a5 9or purposes of #ection 34a5 of this Code, an interAagenc/ co ittee co posed of the following e bers is hereb/ created> Minister of +ealth Minister of !rade and -ndustr/ Minister of *ustice Minister of #ocial #ervices and =evelop ent AAAAAAAAAAAAAAAAAAA AAAAAAAAAAAAAAAAAAA AAAAAAAAAAAAAAAAAAA AAAAAAAAAAAAAAAAAAA Chair an Me ber Me ber Me ber

!he e bers a/ designate their dul/ authori1ed representative to ever/ eeting of the Co ittee. !he Co ittee shall have the following powers and functions>

4'5 !o review and e"a ine all advertising. pro otion or other ar0eting aterials, whether written, audio or visual, on products within the scope of this Code? 4$5 !o approve or disapprove, delete objectionable portions fro and prohibit the printing, publication, distribution, e"hibition and broadcast of, all advertising pro otion or other ar0eting aterials, whether written, audio or visual, on products within the scope of this Code? 425 !o prescribe the internal and operational procedure for the e"ercise of its powers and functions as well as the perfor ance of its duties and responsibilities? and 4)5 To /ro)7:2!te 07c3 r7:e0 !"# re27:!t1o"0 !0 !re "ece00!r5 or /ro/er 6or t3e 1)/:e)e"t!t1o" o6 Sect1o" 6A!B o6 t310 Co#e. " " " 4E phasis supplied5 +owever, #ection '' of the R-RR, to wit> #EC!-<N ''. #rohibition Q No advertising, pro otions, sponsorships, or ar0eting aterials and activities for breast il0 substitutes intended for infants and /oung children up to twent/Afour 4$)5 onths, shall be allowed, because the/ tend to conve/ or give subli inal essages or i pressions that under ine breast il0 and breastfeeding or otherwise e"aggerate breast il0 substitutes andIor replace ents, as well as related products covered within the scope of this Code. prohibits advertising, pro otions, sponsorships or ar0eting aterials and activities for breast il0 substitutes in line with the R-RRRs declaration of principle under #ection )4f5, to wit> #EC!-<N ). ,eclaration of #rinciples K """" 4f5 Advertising, pro otions, or sponsorships of infant for ula, breast il0 substitutes and other related products are prohibited. !he =<+, through its coArespondents, evidentl/ arrogated to itself not onl/ the regulator/ authorit/ given to the -AC but also i posed absolute prohibition on advertising, pro otion, and ar0eting. Het, oddl/ enough, #ection '$ of the R-RR reiterated the re.uire ent of the Mil0 Code in #ection 3 thereof for prior approval b/ -AC of all advertising, ar0eting and pro otional aterials prior to disse ination. Even respondents, through the <#6, ac0nowledged the authorit/ of -AC, and repeatedl/ insisted, during the oral argu ents on *une '(, $;;&, that the prohibition under #ection '' is not actuall/ operational, viz> #<B-C-!<R 6ENERAB =EEANA=ERA> """" " " " Now, the cru" of the atter that is being .uestioned b/ Petitioner is whether or not there is an absolute prohibition on advertising a0ing A< $;;3A'$ unconstitutional. Ge aintained that what A< $;;3A'$ provides is not an absolute prohibition because

#ection '' while it states and it is entitled prohibition it states that no advertising, pro otion, sponsorship or ar0eting aterials and activities for breast il0 substitutes intended for infants and /oung children up to $) onths shall be allowed because this is the standard the/ tend to conve/ or give subli inal essages or i pression under ine that breast il0 or breastfeeding " " ". Ge have to read #ection '' together with the other #ections because the other #ection, #ection '$, provides for the inter agenc/ co ittee that is e powered to process and evaluate all the advertising and pro otion aterials. """" Ghat A< $;;3A'$, what it does, it does not prohibit the sale and anufacture, it si pl/ regulates the advertise ent and the pro otions of breastfeeding il0 substitutes. """" Now, the prohibition on advertising, Hour +onor, ust be ta0en together with the provision on the -nterAAgenc/ Co ittee that processes and evaluates because there a/ be so e infor ation disse ination that are straight forward infor ation disse ination. Ghat the A< $;;3 is tr/ing to prevent is an/ aterial that will under ine the practice of breastfeeding, Hour +onor. """" A##<C-A!E *F#!-CE #AN!-A6<> Mada #olicitor 6eneral, under the Mil0 Code, which bod/ has authorit/ or power to pro ulgate Rules and Regulations regarding the Advertising, Pro otion and Mar0eting of Breast il0 #ubstitutesM #<B-C-!<R 6ENERAB =EEANA=ERA> Hour +onor, please, it is provided that the -nterAAgenc/ Co ittee, Hour +onor. """" A##<C-A!E *F#!-CE #AN!-A6<> " " " =onJt /ou thin0 that the =epart ent of +ealth overstepped its rule a0ing authorit/ when it totall/ banned advertising and pro otion under #ection '' prescribed the total effect rule as well as the content of aterials under #ection '2 and '% of the rules and regulationsM #<B-C-!<R 6ENERAB =EEANA=ERA> Hour +onor, please, first we would li0e to stress that there is no total absolute ban. #econd, the -nterAAgenc/ Co ittee is under the =epart ent of +ealth, Hour +onor. """" A##<C-A!E *F#!-CE NAPAR-<>

" " " =id - hear /ou correctl/, Mada #olicitor, that there is no absolute ban on advertising of breast il0 substitutes in the Revised RulesM #<B-C-!<R 6ENERAB =EEANA=ERA> Hes, /our +onor. A##<C-A!E *F#!-CE NAPAR-<> But, would /ou nevertheless agree that there is an absolute ban on advertising of breast il0 substitutes intended for children two 4$5 /ears old and /oungerM #<B-C-!<R 6ENERAB =EEANA=ERA> -tJs not an absolute ban, Hour +onor, because we have the -nterA Agenc/ Co ittee that can evaluate so e advertising and pro otional aterials, subject to the standards that we have stated earlier, which areA the/ should not under ine breastfeeding, Hour +onor. """" " " " #ection '', while it is titled Prohibition, it ust be ta0en in relation with the other #ections, particularl/ '$ and '2 and '%, Hour +onor, because it is recogni1ed that the -nterAAgenc/ Co ittee has that power to evaluate pro otional aterials, Hour +onor. A##<C-A!E *F#!-CE NAPAR-<> #o in short, will /ou please clarif/ thereJs no absolute ban on advertise ent regarding il0 substitute regarding infants two 4$5 /ears belowM #<B-C-!<R 6ENERAB =EEANA=ERA> Ge can proudl/ sa/ that the general rule is that there is a prohibition, however, we ta0e e"ceptions and standards have been set. <ne of which is that, the -nterAAgenc/ Co ittee can allow if the advertising and pro otions will not under ine breast il0 and breastfeeding, Hour +onor.32 #ections '' and )4f5 of the R-RR are clearl/ violative of the Mil0 Code. +owever, although it is the -AC which is authori1ed to pro ulgate rules and regulations for the approval or rejection of advertising, pro otional, or other ar0eting aterials under #ection '$4a5 of the Mil0 Code, said provision ust be related to #ection 3 thereof which in turn provides that the rules and regulations ust be @pursuant to the applicable standards provided for in this Code.@ #aid standards are set forth in #ections %4b5, :4b5, and '; of the Code, which, at the ris0 of being repetitious, and for eas/ reference, are .uoted hereunder> #EC!-<N %. <nformation and 6ducation K """" 4b5 -nfor ational and educational aterials, whether written, audio, or visual, dealing with the feeding of infants and intended to reach pregnant wo en and others of infants, shall include clear

infor ation on all the following points> 4'5 the benefits and superiorit/ of breastfeeding? 4$5 aternal nutrition, and the preparation for and aintenance of breastfeeding? 425 the negative effect on breastfeeding of introducing partial bottlefeeding? 4)5 the difficult/ of reversing the decision not to breastfeed? and 4%5 where needed, the proper use of infant for ula, whether anufactured industriall/ or ho eAprepared. Ghen such aterials contain infor ation about the use of infant for ula, the/ shall include the social and financial i plications of its use? the health ha1ards of inappropriate foods of feeding ethods? and, in particular, the health ha1ards of unnecessar/ or i proper use of infant for ula and other breast il0 substitutes. #uch aterials shall not use an/ picture or te"t which a/ ideali1e the use of breast il0 substitutes. """" #EC!-<N :. :ealth ;or"ers. U """" 4b5 -nfor ation provided b/ anufacturers and distributors to health professionals regarding products within the scope of this Code shall be restricted to scientific and factual atters and such infor ation shall not i pl/ or create a belief that bottle feeding is e.uivalent or superior to breastfeeding. -t shall also include the infor ation specified in #ection %4b5. """" #EC!-<N ';. ontainersI*abel @ 4a5 Containers andIor labels shall be designed to provide the necessar/ infor ation about the appropriate use of the products, and in such a wa/ as not to discourage breastfeeding. 4b5 Each container shall have a clear, conspicuous and easil/ readable and understandable essage in Pilipino or English printed on it, or on a label, which essage can not readil/ beco e separated fro it, and which shall include the following points> 4i5 the words @- portant Notice@ or their e.uivalent? 4ii5 a state ent of the superiorit/ of breastfeeding? 4iii5 a state ent that the product shall be used onl/ on the advice of a health wor0er as to the need for its use and the proper ethods of use? and 4iv5 instructions for appropriate preparation, and a warning against the health ha1ards of inappropriate preparation. #ection '$4b5 of the Mil0 Code designates the =<+ as the principal i ple enting agenc/ for the enforce ent of the provisions of the Code. -n relation to such responsibilit/ of the =<+, #ection %4a5 of the Mil0 Code states that> #EC!-<N %. <nformation and 6ducation K 4a5 !he govern ent shall ensure that obFect1(e !"# co"010te"t infor ation is provided on infant feeding, for use b/ fa ilies and

those involved in the field of infant nutrition. !his responsibilit/ shall cover the planning, provision, design and disse ination of infor ation, and the control thereof, on infant nutrition. 4E phasis supplied5 !hus, t3e %OH 3!0 t3e 012"161c!"t re0/o"01b1:1t5 to tr!"0:!te 1"to o/er!t1o"!: ter)0 t3e 0t!"#!r#0 0et 6ort3 1" Sect1o"0 ', &, !"# 1* o6 t3e M1:; Co#e, b5 ?31c3 t3e I$C 03!:: 0cree" !#(ert101"2, /ro)ot1o"!:, or ot3er )!r;et1"2 )!ter1!:0. -t is pursuant to such responsibilit/ that the =<+ correctl/ provided for #ection '2 in the R-RR which reads as follows> #EC!-<N '2. @Total 6ffect@ A Pro otion of products within the scope of this Code ust be objective and should not e.uate or a0e the product appear to be as good or e.ual to breast il0 or breastfeeding in the advertising concept. -t ust not in an/ case under ine breast il0 or breastfeeding. !he @total effect@ should not directl/ or indirectl/ suggest that bu/ing their product would produce better individuals, or resulting in greater love, intelligence, abilit/, har on/ or in an/ anner bring better health to the bab/ or other such e"aggerated and unsubstantiated clai . #uch standards bind the -AC in for ulating its rules and regulations on advertising, pro otion, and ar0eting. !hrough that single provision, the =<+ e"ercises control over the infor ation content of advertising, pro otional and ar0eting aterials on breast il0 vis-a-vis breast il0 substitutes, supple ents and other related products. -t also sets a viable standard against which the -AC a/ screen such aterials before the/ are ade public. -n 6qui-)sia #lacement' <nc. vs. ,epartment of 8oreign )ffairs ,3) the Court held> " " " C!Dhis Court had, in the past, accepted as sufficient standards the following> @public interest,@ @justice and e.uit/,@ @public convenience and welfare,@ and @si plicit/, econo / and welfare.@ 3% -n this case, correct infor ation as to infant feeding and nutrition is infused with public interest and welfare. ). Gith regard to activities for disse ination of infor ation to health professionals, the Court also finds that there is no inconsistenc/ between the provisions of the Mil0 Code and the R-RR. #ection &4b533 of the Mil0 Code, in relation to #ection :4b53& of the sa e Code, allows disse ination of infor ation to health professionals but such 1"6or)!t1o" 10 re0tr1cte# to 0c1e"t161c !"# 6!ct7!: )!tter0. Contrar/ to petitionerJs clai , #ection $$ of the R-RR does not prohibit the 21(1"2 o6 1"6or)!t1o" to 3e!:t3 /ro6e001o"!:0 o" 0c1e"t161c !"# 6!ct7!: )!tter0. Ghat it prohibits is the involve ent of the anufacturer and distributor of the products covered b/ the Code in activities for the pro otion, education and production of -nfor ation, Education and Co unication 4-EC5 aterials regarding breastfeeding that are 1"te"#e# 6or ?o)e" !"#

c31:#re". #aid provision cannot be construed to enco pass even the #100e)1"!t1o" o6 1"6or)!t1o" to 3e!:t3 /ro6e001o"!:0, !0 re0tr1cte# b/ the Mil0 Code. %. Ne"t, petitioner alleges that #ection :4e53: of the Mil0 Code per its il0 anufacturers and distributors to e"tend assistance in research and in the continuing education of health professionals, while #ections $$ and 2$ of the R-RR absolutel/ forbid the sa e. Petitioner also assails #ection )4i5 3( of the R-RR prohibiting il0 anufacturersJ and distributorsJ participation in an/ polic/ a0ing bod/ in relation to the advance ent of breastfeeding. #ection )4i5 of the R-RR provides that il0 co panies and their representatives should not for part of an/ polic/ a0ing bod/ or entit/ in relation to the advance ent of breastfeeding. !he Court finds nothing in said provisions which contravenes the Mil0 Code. Note that under #ection '$4b5 of the Mil0 Code, it is t3e %OH ?31c3 03!:: be /r1"c1/!::5 re0/o"01b:e for the i ple entation and enforce ent of the provisions of said Code. -t is entirel/ up to the =<+ to decide which entities to call upon or allow to be part of polic/ a0ing bodies on breastfeeding. !herefore, the R-RRJs prohibition on il0 co paniesR participation in an/ polic/ a0ing bod/ in relation to the advance ent of breastfeeding is in accord with the Mil0 Code. Petitioner is also ista0en in arguing that #ection $$ of the R-RR prohibits il0 co panies fro giving reasearch assistance and continuing education to health professionals. Sect1o" 22&; o6 t3e RIRR #oe0 "ot /ert!1" to re0e!rc3 !0010t!"ce to or t3e co"t1"71"2 e#7c!t1o" o6 3e!:t3 /ro6e001o"!:0? rather, it deals with breastfeeding pro otion and e#7c!t1o" 6or ?o)e" !"# c31:#re". Nothing in #ection $$ of the R-RR prohibits il0 co panies fro giving assistance for research or continuing education to health professionals? hence, petitionerJs argu ent against this particular provision ust be struc0 down. -t is #ections (&' and ';&$ of the R-RR which govern research assistance. #aid sections of the R-RR provide that re0e!rc3 !0010t!"ce 6or 3e!:t3 ?or;er0 !"# re0e!rc3er0 )!5 be !::o?e# 7/o" !//ro(!: o6 !" et31c0 co))1ttee, !"# ?1t3 cert!1" #10c:o07re reE71re)e"t0 1)/o0e# o" t3e )1:; co)/!"5 !"# o" t3e rec1/1e"t o6 t3e re0e!rc3 !?!r# . !he Mil0 Code endows the =<+ with the power to deter ine how such research or educational assistance a/ be given b/ il0 co panies or under what conditions health wor0ers a/ accept the assistance. !hus, #ections ( and '; of the R-RR i posing li itations on the 0ind of research done or e"tent of assistance given b/ il0 co panies are co pletel/ in accord with the Mil0 Code. Petitioner co plains that #ection 2$&2 of the R-RR prohibits il0 co panies fro giving assistance, support, logistics or training to health wor0ers. !his provision is within the prerogative given to the =<+ under #ection :4e5 &) of the Mil0 Code, which provides that anufacturers and distributors of breast il0 substitutes a/ assist in researches, scholarships and the continuing education, of health professionals in accordance with the rules and regulations pro ulgated b/ the Ministr/ of +ealth, now =<+.

3. As to the R-RRJs prohibition on donations, said provisions are also consistent with the Mil0 Code. #ection 34f5 of the Mil0 Code provides that donations )!5 be ade b/ anufacturers and distributors of breast il0 substitutes 7/o" t3e reE7e0t or ?1t3 t3e !//ro(!: o6 t3e %OH. !he law does not proscribe the refusal of donations. !he Mil0 Code leaves it purel/ to the discretion of the =<+ whether to re.uest or accept such donations. !he =<+ then appropriatel/ e"ercised its discretion through #ection %'&% of the R-RR which sets forth its polic/ not to re.uest or approve donations fro anufacturers and distributors of breast il0 substitutes. -t was within the discretion of the =<+ when it provided in #ection %$ of the R-RR that an/ donation fro il0 co panies not covered b/ the Code should be coursed through the -AC which shall deter ine whether such donation should be accepted or refused. As reasoned out b/ respondents, the =<+ is not andated b/ the Mil0 Code to accept donations. 9or that atter, no person or entit/ can be forced to accept a donation. !here is, therefore, no real inconsistenc/ between the R-RR and the law because the Mil0 Code does not prohibit the =<+ fro refusing donations. &. Gith regard to #ection )3 of the R-RR providing for ad inistrative sanctions that are not found in the Mil0 Code, the Court upholds petitionerJs objection thereto. RespondentJs reliance on ivil )eronautics !oard v. #hilippine )ir *ines' <nc.&3 is isplaced. !he glaring difference in said case and the present case before the Court is that, in the ivil )eronautics !oard, the Civil Aeronautics Ad inistration 4CAA5 was e4/re00:5 2r!"te# b5 t3e :!? AR.$. No. 776B t3e /o?er to i pose fines and civil penalties, while the Civil Aeronautics Board 4CAB5 was granted b/ the sa e law the power to review on appeal the order or decision of the CAA and to deter ine whether to i pose, re it, itigate, increase or co pro ise such fine and civil penalties. !hus, the Court upheld the CABJs Resolution i posing ad inistrative fines. -n a ore recent case, #erez v. *#G +efillers )ssociation of the #hilippines' <nc.,&& the Court upheld the =epart ent of Energ/ 4=<E5 Circular No. $;;;A ;3A'; i ple enting !atas #ambansa 4B.P.5 !lg. 22. !he circular provided for fines for the co ission of prohibited acts. !he Court found that nothing in the circular contravened the law because the =<E was e"pressl/ authori1ed b/ B.P. !lg. 22 and R.A. No. &32: to i pose fines or penalties. -n the present case, neither the Mil0 Code nor the Revised Ad inistrative Code grants the =<+ the authorit/ to fi" or i pose ad inistrative fines. !hus, without an/ e"press grant of power to fi" or i pose such fines, the =<+ cannot provide for those fines in the R-RR. -n this regard, the =<+ again e"ceeded its authorit/ b/ providing for such fines or sanctions in #ection )3 of the R-RR. #aid provision is, therefore, null and void. !he =<+ is not left without an/ eans to enforce its rules and regulations. #ection '$4b5 425 of the Mil0 Code authori1es the =<+ to @cause the prosecution of the violators of this Code and other pertinent laws on products covered b/ this Code.@ #ection '2 of the Mil0 Code provides for the penalties

to be i posed on violators of the provision of the Mil0 Code or the rules and regulations issued pursuant to it, to wit> #EC!-<N '2. Sanctions K 4a5 An/ person who violates the provisions of this Code or t3e r7:e0 !"# re27:!t1o"0 1007e# /7r07!"t to t310 Co#e shall, upon conviction, be punished b/ a penalt/ of two 4$5 onths to one 4'5 /ear i prison ent or a fine of not less than <ne !housand Pesos 4P',;;;.;;5 nor ore than !hirt/ !housand Pesos 4P2;,;;;.;;5 or both. #hould the offense be co itted b/ a juridical person, the chair an of the Board of =irectors, the president, general anager, or the partners andIor the persons directl/ responsible therefor, shall be penali1ed. 4b5 An/ license, per it or authorit/ issued b/ an/ govern ent agenc/ to an/ health wor0er, distributor, anufacturer, or ar0eting fir or personnel for the practice of their profession or occupation, or for the pursuit of their business, a/, upon reco endation of the Ministr/ of +ealth, be suspended or revo0ed in the event of repeated violations of this Code, or of the rules and regulations issued pursuant to this Code. 4E phasis supplied5 :. PetitionerRs clai that #ection %& of the R-RR repeals e"isting laws that are contrar/ to the R-RR is frivolous. #ection %& reads> #EC!-<N %&. +epealing lause A All orders, issuances, and rules and regulations or parts thereof inconsistent with these revised rules and i ple enting regulations are hereb/ repealed or odified accordingl/. #ection %& of the R-RR does not provide for the repeal of laws but onl/ orders, issuances and rules and regulations. !hus, said provision is valid as it is within the =<+Js ruleA a0ing power. An ad inistrative agenc/ li0e respondent possesses .uasiAlegislative or ruleA a0ing power or the power to a0e rules and regulations which results in delegated legislation that is within the confines of the granting statute and the Constitution, and subject to the doctrine of nonAdelegabilit/ and separabilit/ of powers.&: #uch e"press grant of ruleA a0ing power necessaril/ includes the power to a end, revise, alter, or repeal the sa e. &( !his is to allow ad inistrative agencies fle"ibilit/ in for ulating and adjusting the details and anner b/ which the/ are to i ple ent the provisions of a law, :; in order to a0e it ore responsive to the ti es. +ence, it is a standard provision in ad inistrative rules that prior issuances of ad inistrative agencies that are inconsistent therewith are declared repealed or odified. -n fine, onl/ #ections )4f5, '' and )3 are ultra vires, be/ond the authorit/ of the =<+ to pro ulgate and in contravention of the Mil0 Code and, therefore, null and void. !he rest of the provisions of the R-RR are in consonance with the Mil0 Code. Bastl/, petitioner a0es a @catchAall@ allegation that>

" " " C!Dhe .uestioned R-RR sought to be i ple ented b/ the Respondents is 7""ece00!r5 !"# o//re001(e, !"# 10 o66e"01(e to t3e #7e /roce00 c:!70e o6 t3e Co"0t1t7t1o", 1"0o6!r !0 t3e 0!)e 10 1" re0tr!1"t o6 tr!#e and because a provision therein is inade.uate to provide the public with a co prehensible basis to deter ine whether or not the/ have co itted a violation. :' 4E phasis supplied5 Petitioner refers to #ections )4f5,:$ )4i5,:2 %4w5,:) '',:% $$,:3 2$,:& )3,:: and %$:( as the provisions that suppress the trade of il0 and, thus, violate the due process clause of the Constitution. !he fra ers of the constitution were well aware that trade ust be subjected to so e for of regulation for the public good. Public interest ust be upheld over business interests.(; -n #est 5anagement )ssociation of the #hilippines v. 8ertilizer and #esticide )uthority,(' it was held thus> " " " 9urther ore, as held in Association of Philippine Coconut =esiccators v. Philippine Coconut Authorit/, #e0/1te t3e 6!ct t3!t Io7r /re0e"t Co"0t1t7t1o" e"03r1"e0 6ree e"ter/r10e !0 ! /o:1c5, 1t "o"et3e:e00 re0er(e0 to t3e 2o(er")e"t t3e /o?er to 1"ter(e"e ?3e"e(er "ece00!r5 to /ro)ote t3e 2e"er!: ?e:6!re. @ !here can be no .uestion that the unregulated use or proliferation of pesticides would be ha1ardous to our environ ent. !hus, in the aforecited case, the Court declared that @6ree e"ter/r10e #oe0 "ot c!:: 6or re)o(!: o6 S/rotect1(e re27:!t1o"0L.@ " " " It )70t be c:e!r:5 e4/:!1"e# !"# /ro(e" b5 co)/ete"t e(1#e"ce F70t e4!ct:5 3o? 07c3 /rotect1(e re27:!t1o" ?o7:# re07:t 1" t3e re0tr!1"t o6 tr!#e. CE phasis and underscoring suppliedD -n this case, petitioner failed to show that the proscription of il0 anufacturersR participation in an/ polic/ a0ing bod/ 4#ection )4i55, classes and se inars for wo en and children 4#ection $$5? the giving of assistance, support and logistics or training 4#ection 2$5? and the giving of donations 4#ection %$5 would unreasonabl/ ha per the trade of breast il0 substitutes. Petitioner has not established that the proscribed activities are indispensable to the trade of breast il0 substitutes. Petitioner failed to de onstrate that the afore entioned provisions of the R-RR are unreasonable and oppressive for being in restraint of trade. Petitioner also failed to convince the Court that #ection %4w5 of the R-RR is unreasonable and oppressive. #aid section provides for the definition of the ter @ il0 co pan/,@ to wit> #EC!-<N % " " ". 4w5 @Mil0 Co pan/@ shall refer to the owner, anufacturer, distributor of infant for ula, followAup il0, il0 for ula, il0 supple ent, breast il0 substitute or replace ent, or b/ an/ other description of such nature, including their representatives who pro ote or otherwise advance their co ercial interests in ar0eting those products? <n the other hand, #ection ) of the Mil0 Code provides>

4d5 @=istributor@ eans a person, corporation or an/ other entit/ in the public or private sector engaged in the business 4whether directl/ or indirectl/5 of ar0eting at the wholesale or retail level a product within the scope of this Code. A @pri ar/ distributor@ is a anufacturerJs sales agent, representative, national distributor or bro0er. """" 4j5 @Manufacturer@ eans a corporation or other entit/ in the public or private sector engaged in the business or function 4whether directl/ or indirectl/ or through an agent or and entit/ controlled b/ or under contract with it5 of anufacturing a products within the scope of this Code. Notabl/, the definition in the R-RR erel/ erged together under the ter @ il0 co pan/@ the entities defined separatel/ under the Mil0 Code as @distributor@ and @ anufacturer.@ !he R-RR also enu erated in #ection %4w5 the products anufactured or distributed b/ an entit/ that would .ualif/ it as a @ il0 co pan/,@ whereas in the Mil0 Code, what is used is the phrase @products within the scope of this Code.@ !hose are the onl/ differences between the definitions given in the Mil0 Code and the definition as reAstated in the R-RR. #ince all the regulator/ provisions under the Mil0 Code appl/ e.uall/ to both anufacturers and distributors, the Court sees no har in the R-RR providing for just one ter to enco pass both entities. !he definition of @ il0 co pan/@ in the R-RR and the definitions of @distributor@ and @ anufacturer@ provided for under the Mil0 Code are practicall/ the sa e. !he Court is not convinced that the definition of @ il0 co pan/@ provided in the R-RR would bring about an/ change in the treat ent or regulation of @distributors@ and @ anufacturers@ of breast il0 substitutes, as defined under the Mil0 Code. E"cept #ections )4f5, '' and )3, the rest of the provisions of the R-RR are in consonance with the objective, purpose and intent of the Mil0 Code, constituting reasonable regulation of an industr/ which affects public health and welfare and, as such, the rest of the R-RR do not constitute illegal restraint of trade nor are the/ violative of the due process clause of the Constitution. -HERE ORE, the petition is P$RTI$LL+ GR$NTE%. #ections )4f5, '' and )3 of Ad inistrative <rder No. $;;3A;;'$ dated Ma/ '$, $;;3 are declared NULL and 8OI% for being ultra vires. !he =epart ent of +ealth and respondents are PROHI,ITE% fro i ple enting said provisions. !he !e porar/ Restraining <rder issued on August '%, $;;3 is LI TE% insofar as the rest of the provisions of Ad inistrative <rder No. $;;3A;;'$ is concerned. SO OR%ERE%.

#uno' $ hief (ustice&' Guisumbing' Hnares-Santiago' Sandoval-Gutierrez' arpio' orona' arpio-5orales' )zcuna' Tinga' hico-/azario' Garcia' Velasco' (r.' /achura' +eyes' ((.' concur. Republic of the Philippines SUPREME COURT Manila EN ,$NC G.R. No. 1&3'91 October 14, 2**& THE PRO8INCE O NORTH COT$,$TO, #7:5 re/re0e"te# b5 GO8ERNOR .ESUS S$C%$L$N !"#Ror 8ICE-GO8ERNOR EMM$NUEL PIDOL, 6or !"# 1" 310 o?" be3!:6, petitioners, vs. THE GO8ERNMENT O THE REPU,LIC O THE PHILIPPINES PE$CE P$NEL ON $NCESTR$L %OM$IN AGRPB, re/re0e"te# b5 SEC. RO%OL O G$RCI$, $TT+. LE$H $RM$MENTO, $TT+. SE% RE+ C$N%EL$RI$, M$R@ R+$N SULLI8$N !"#Ror GEN. HERMOGENES ESPERON, .R., t3e :!tter 1" 310 c!/!c1t5 !0 t3e /re0e"t !"# #7:5!//o1"te# Pre01#e"t1!: $#(10er o" t3e Pe!ce Proce00 AOP$PPB or t3e 0o-c!::e# O661ce o6 t3e Pre01#e"t1!: $#(10er o" t3e Pe!ce Proce00, respondents. "AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA" G.R. No. 1&37'2 October 14, 2**& CIT+ GO8ERNMENT O =$M,O$NG$, !0 re/re0e"te# b5 HON. CELSO L. LO,REG$T, C1t5 M!5or o6 =!)bo!"2!, !"# 1" 310 /er0o"!: c!/!c1t5 !0 re01#e"t o6 t3e C1t5 o6 =!)bo!"2!, Re/. M$. IS$,ELLE G. CLIM$CO, %10tr1ct 1, !"# Re/. ERICO ,$SILIO $. $,I$N, %10tr1ct 2, C1t5 o6 =!)bo!"2!, petitioners, vs. THE GO8ERNMENT O THE REPU,LIC O THE PHILIPPINES PE$CE NEGOTI$TING P$NEL AGRPB, !0 re/re0e"te# b5 RO%OL O C. G$RCI$, LE$H $RM$MENTO, SE% RE+ C$N%EL$RI$, M$R@ R+$N SULLI8$N !"# HERMOGENES ESPERON, 1" 310 c!/!c1t5 !0 t3e Pre01#e"t1!: $#(10er o" Pe!ce Proce00, respondents. "AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA" G.R. No. 1&3&93 October 14, 2**& THE CIT+ O ILIG$N, #7:5 re/re0e"te# b5 CIT+ M$+OR L$-RENCE LLUCH CRU=, petitioner, vs. THE GO8ERNMENT O THE REPU,LIC O THE PHILIPPINES PE$CE P$NEL ON $NCESTR$L %OM$IN AGRPB, re/re0e"te# b5 SEC. RO%OL O G$RCI$, $TT+. LE$H $RM$MENTO, $TT+. SE% RE+ C$N%EL$RI$, M$R@ R+$N SULLI8$N9 GEN. HERMOGENES ESPERON, .R., 1" 310 c!/!c1t5 !0 t3e /re0e"t !"# #7:5 !//o1"te#

Pre01#e"t1!: $#(10er o" t3e Pe!ce Proce009 !"#Ror SEC. E%U$R%O ERMIT$, 1" 310 c!/!c1t5 !0 E4ec7t1(e Secret!r5. respondents. "AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA" G.R. No. 1&39'1 October 14, 2**& THE PRO8INCI$L GO8ERNMENT O =$M,O$NG$ %EL NORTE, !0 re/re0e"te# b5 HON. ROL$N%O E. +E,ES, 1" 310 c!/!c1t5 !0 Pro(1"c1!: Go(er"or, HON. R$NCIS H. OL8IS, 1" 310 c!/!c1t5 !0 81ce-Go(er"or !"# Pre01#1"2 O661cer o6 t3e S!"227"1!"2 P!":!:!?12!", HON. CECILI$ .$LOS.OS C$RREON, Co"2re00?o)!", 10t Co"2re001o"!: %10tr1ct, HON. CES$R G. .$LOS.OS, Co"2re00)!", 3r# Co"2re001o"!: %10tr1ct, !"# Me)ber0 o6 t3e S!"227"1!"2 P!":!:!?12!" o6 t3e Pro(1"ce o6 =!)bo!"2! #e: Norte, "!)e:5, HON. SETH RE%ERIC@ P. .$LOS.OS, HON. ERN$N%O R. C$,IGON, .R., HON. UL%$RICO M. ME.OR$%$ II, HON. E%ION$R M. =$MOR$S, HON. E%G$R .. ,$GUIO, HON. CE%RIC L. $%RI$TICO, HON. ELIC,ERTO C. ,OL$N%O, HON. .OSEPH ,REN%O C. $.ERO, HON. NOR,I%EIRI ,. E%%ING, HON. $NECITO S. %$RUN%$+, HON. $NGELIC$ .. C$RREON !"# HON. LU=8IMIN%$ E. TORRINO, petitioners, vs. THE GO8ERNMENT O THE REPU,LIC O THE PHILIPPINES PE$CE NEGOTI$TING P$NEL JGRPK, !0 re/re0e"te# b5 HON. RO%OL O C. G$RCI$ !"# HON. HERMOGENES ESPERON, 1" 310 c!/!c1t5 !0 t3e Pre01#e"t1!: $#(10er o6 Pe!ce Proce00, respondents. "AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA" G.R. No. 1&3962 October 14, 2**& ERNESTO M. M$CE%$, .E.OM$R C. ,IN$+, !"# $>UILINO L. PIMENTEL III, petitioners, vs. THE GO8ERNMENT O THE REPU,LIC O THE PHILIPPINES PE$CE NEGOTI$TING P$NEL, re/re0e"te# b5 1t0 C3!1r)!" RO%OL O C. G$RCI$, !"# t3e MORO ISL$MIC LI,ER$TION RONT PE$CE NEGOTI$TING P$NEL, re/re0e"te# b5 1t0 C3!1r)!" MOH$GHER I>,$L, respondents. "AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA" R$N@LIN M. %RILON !"# $%EL $,,$S T$M$NO, petitionersAinA intervention. "AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA" SEN. M$NUEL $. ROC$S, petitionersAinAintervention. "AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA" MUNICIP$LIT+ O LIN$MON #7:5 re/re0e"te# b5 1t0 M7"1c1/!: M!5or NOEL N. %E$NO, petitionersAinAintervention, "AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA" THE CIT+ O IS$,EL$, ,$SIL$N PRO8INCE, re/re0e"te# b5 M$+OR CHERR+L+N P. S$NTOS-$@,$R, petitionersAinAintervention. "AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA"

THE PRO8INCE O SULT$N @U%$R$T, re/. b5 HON. SUH$RTO T. M$NGU%$%$TU, 1" 310 c!/!c1t5 !0 Pro(1"c1!: Go(er"or !"# ! re01#e"t o6 t3e Pro(1"ce o6 S7:t!" @7#!r!t, petitionerAinAintervention. "AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA" RU+ ELI$S LOPE=, 6or !"# 1" 310 o?" be3!:6 !"# o" be3!:6 o6 I"#12e"o70 Peo/:e0 1" M1"#!"!o Not ,e:o"21"2 to t3e MIL , petitionerA inAintervention. "AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA" C$RLO ,. GOME=, GER$R%O S. %ILIG, NES$RIO G. $-$T, .OSELITO C. $LISU$G !"# RICH$LEC G. .$GMIS, !0 c1t1He"0 !"# re01#e"t0 o6 P!:!?!", petitionersAinAintervention. "AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA" M$RINO RI%$O !"# @ISIN ,UC$NI, petitionersAinAintervention. "AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA" MUSLIM LEG$L $SSIST$NCE OUN%$TION, INC AMUSL$ B, respondentAinAintervention. "AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA" MUSLIM MULTI-SECTOR$L MO8EMENT OR PE$CE P %E8ELOPMENT AMMMP%B, respondentAinAintervention. "AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA" =EC-#-<N C$RPIO MOR$LES, J.< #ubject of these consolidated cases is the e4te"t o6 t3e /o?er0 of the President in pursuing the peace process. Ghile the facts surrounding this controvers/ center on the ar ed conflict in Mindanao between the govern ent and the Moro -sla ic Biberation 9ront 4M-B95, the legal issue involved has a bearing on all areas in the countr/ where there has been a longAstanding ar ed conflict. Het again, the Court is tas0ed to perfor a delicate balancing act. -t ust unco pro isingl/ delineate the bounds within which the President a/ lawfull/ e"ercise her discretion, but it ust do so in strict adherence to the Constitution, lest its ruling undul/ restricts the freedo of action vested b/ that sa e Constitution in the Chief E"ecutive precisel/ to enable her to pursue the peace process effectivel/. I. $CTU$L $NTECE%ENTS O THE PETITIONS <n August %, $;;:, the 6overn ent of the Republic of the Philippines 46RP5 and the M-B9, through the Chairpersons of their respective peace negotiating panels, were scheduled to sign a Me orandu of Agree ent on the Ancestral =o ain 4M<AAA=5 Aspect of the 6RPAM-B9 !ripoli Agree ent on Peace of $;;' in ,uala Bu pur, Mala/sia. !he M-B9 is a rebel group which was established in March '(:) when, under the leadership of the late #ala at +ashi , it splintered fro the Moro National Biberation 9ront 4MNB95 then headed b/ Nur Misuari, on the ground, a ong others, of what #ala at perceived to be the anipulation of the MNB9 awa/ fro an -sla ic basis towards Mar"istAMaoist orientations. '

!he signing of the M<AAA= between the 6RP and the M-B9 was not to ateriali1e, however, for upon otion of petitioners, specificall/ those who filed their cases before the scheduled signing of the M<AAA=, this Court issued a !e porar/ Restraining <rder enjoining the 6RP fro signing the sa e. !he M<AAA= was preceded b/ a long process of negotiation and the concluding of several prior agree ents between the two parties beginning in '((3, when the 6RPAM-B9 peace negotiations began. <n *ul/ ':, '((&, the 6RP and M-B9 Peace Panels signed the Agree ent on 6eneral Cessation of +ostilities. !he following /ear, the/ signed the 6eneral 9ra ewor0 of Agree ent of -ntent on August $&, '((:. !he #olicitor 6eneral, who represents respondents, su ari1es the M<AA A= b/ stating that the sa e contained, a ong others, the co it ent of the parties to pursue peace negotiations, protect and respect hu an rights, negotiate with sincerit/ in the resolution and pacific settle ent of the conflict, and refrain fro the use of threat or force to attain undue advantage while the peace negotiations on the substantive agenda are onAgoing. $ Earl/ on, however, it was evident that there was not going to be an/ s ooth sailing in the 6RPAM-B9 peace process. !owards the end of '((( up to earl/ $;;;, the M-B9 attac0ed a nu ber of unicipalities in Central Mindanao and, in March $;;;, it too0 control of the town hall of ,auswagan, Banao del Norte.2 -n response, then President *oseph Estrada declared and carried out an @allAoutAwar@ against the M-B9. Ghen President 6loria MacapagalAArro/o assu ed office, the ilitar/ offensive against the M-B9 was suspended and the govern ent sought a resu ption of the peace tal0s. !he M-B9, according to a leading M-B9 e ber, initiall/ responded with deep reservation, but when President Arro/o as0ed the 6overn ent of Mala/sia through Pri e Minister Mahathir Moha ad to help convince the M-B9 to return to the negotiating table, the M-B9 convened its Central Co ittee to seriousl/ discuss the atter and, eventuall/, decided to eet with the 6RP.) !he parties et in ,uala Bu pur on March $), $;;', with the tal0s being facilitated b/ the Mala/sian govern ent, the parties signing on the sa e date the Agree ent on the 6eneral 9ra ewor0 for the Resu ption of Peace !al0s Between the 6RP and the M-B9. !he M-B9 thereafter suspended all its ilitar/ actions.% 9or al peace tal0s between the parties were held in !ripoli, Bib/a fro *une $;A$$, $;;', the outco e of which was the 6RPAM-B9 !ripoli Agree ent on Peace 4!ripoli Agree ent $;;'5 containing the basic principles and agenda on the following aspects of the negotiation> Sec7r1t5 Aspect, Re3!b1:1t!t1o" Aspect, and $"ce0tr!: %o)!1" Aspect. Gith regard to the Ancestral =o ain Aspect, the parties in !ripoli Agree ent $;;' si pl/ agreed @that the sa e be discussed further b/ the Parties in their ne"t eeting.@ A second round of peace tal0s was held in C/berja/a, Mala/sia on August %A &, $;;' which ended with the signing of the - ple enting 6uidelines on the #ecurit/ Aspect of the !ripoli Agree ent $;;' leading to a ceasefire status

between the parties. !his was followed b/ the - ple enting 6uidelines on the +u anitarian Rehabilitation and =evelop ent Aspects of the !ripoli Agree ent $;;', which was signed on Ma/ &, $;;$ at Putraja/a, Mala/sia. Nonetheless, there were an/ incidence of violence between govern ent forces and the M-B9 fro $;;$ to $;;2. Meanwhile, then M-B9 Chair an #ala at +ashi passed awa/ on *ul/ '2, $;;2 and he was replaced b/ Al +aj Murad, who was then the chief peace negotiator of the M-B9. MuradJs position as chief peace negotiator was ta0en over b/ Mohagher -.bal.3 -n $;;%, several e"plorator/ tal0s were held between the parties in ,uala Bu pur, eventuall/ leading to the crafting of the draft M<AAA= in its final for , which, as entioned, was set to be signed last August %, $;;:. II. ST$TEMENT O THE PROCEE%INGS Before the Court is what is perhaps the ost contentious @consensus@ ever e bodied in an instru ent A the M<AAA= which is assailed principall/ b/ the present petitions bearing doc0et nu bers ':2%(', ':2&%$, ':2:(2, ':2(%' and ':2(3$. Co onl/ i pleaded as respondents are the 6RP Peace Panel on Ancestral =o ain& and the Presidential Adviser on the Peace Process 4PAPP5 +er ogenes Esperon, *r. <n *ul/ $2, $;;:, the Province of North Cotabato : and EiceA6overnor E anuel PiSol filed a petition, doc0eted as G.R. No. 1&3'91, for Manda us and Prohibition with Pra/er for the -ssuance of Grit of Preli inar/ -njunction and !e porar/ Restraining <rder.( -nvo0ing the right to infor ation on atters of public concern, petitioners see0 to co pel respondents to disclose and furnish the the co plete and official copies of the M<AAA= including its attach ents, and to prohibit the slated signing of the M<AAA=, pending the disclosure of the contents of the M<AAA= and the holding of a public consultation thereon. #upple entaril/, petitioners pra/ that the M<AA A= be declared unconstitutional.'; !his initial petition was followed b/ another one, doc0eted as G.R. No. 1&37'2, also for Manda us and Prohibition'' filed b/ the Cit/ of Pa boanga,'$ Ma/or Celso Bobregat, Rep. Ma. -sabelle Cli aco and Rep. Erico Basilio 9abian who li0ewise pra/ for si ilar injunctive reliefs. Petitioners herein oreover pra/ that the Cit/ of Pa boanga be e"cluded fro the Bangsa oro +o eland andIor Bangsa oro *uridical Entit/ and, in the alternative, that the M<AAA= be declared null and void. B/ Resolution of August ), $;;:, the Court issued a !e porar/ Restraining <rder co anding and directing public respondents and their agents to cease and desist fro for all/ signing the M<AAA=.'2 !he Court also re.uired the #olicitor 6eneral to sub it to the Court and petitioners the official cop/ of the final draft of the M<AAA=,') to which she co plied.'% Meanwhile, the Cit/ of -ligan'3 filed a petition for -njunction andIor =eclarator/ Relief, doc0eted as G.R. No. 1&3&93, pra/ing that respondents be enjoined fro signing the M<AAA= or, if the sa e had alread/ been signed, fro

i ple enting the sa e, and that the M<AAA= be declared unconstitutional. Petitioners herein additionall/ i plead E"ecutive #ecretar/ Eduardo Er ita as respondent. !he Province of Pa boanga del Norte,'& 6overnor Rolando Hebes, EiceA 6overnor 9rancis <lvis, Rep. Cecilia *alosjosACarreon, Rep. Cesar *alosjos, and the e bers': of the #angguniang Panlalawigan of Pa boanga del Norte filed on August '%, $;;: a petition for Certiorari, Manda us and Prohibition,'( doc0eted as G.R. No. 1&39'1. !he/ pra/, inter alia, that the M<AAA= be declared null and void and without operative effect, and that respondents be enjoined fro e"ecuting the M<AAA=. <n August '(, $;;:, Ernesto Maceda, *ejo ar Bina/, and A.uilino Pi entel --- filed a petition for Prohibition,$; doc0eted as G.R. No. 1&3962, pra/ing for a judg ent prohibiting and per anentl/ enjoining respondents fro for all/ signing and e"ecuting the M<AAA= and or an/ other agree ent derived therefro or si ilar thereto, and nullif/ing the M<AAA= for being unconstitutional and illegal. Petitioners herein additionall/ i plead as respondent the M-B9 Peace Negotiating Panel represented b/ its Chair an Mohagher -.bal. Earious parties oved to intervene and were granted leave of court to file their petitionsAIco entsAinAintervention. PetitionersAinA-ntervention include #enator Manuel A. Ro"as, for er #enate President 9ran0lin =rilon and Att/. Adel !a ano, the Cit/ of -sabela$' and Ma/or Cherr/l/n #antosAA0bar, the Province of #ultan ,udarat$$ and 6ov. #uharto Mangudadatu, the Municipalit/ of Bina on in Banao del Norte,$2 Ru/ Elias Bope1 of =avao Cit/ and of the Bagobo tribe, Sangguniang #anlungsod e ber Marino Ridao and business an ,isin Bu"ani, both of Cotabato Cit/? and law/ers Carlo 6o e1, 6erardo =ilig, Nesario Awat, *oselito Alisuag, Richale" *ag is, all of Palawan Cit/. !he Musli Begal Assistance 9oundation, -nc. 4Muslaf5 and the Musli MultiA#ectoral Move ent for Peace and =evelop ent 4MMMP=5 filed their respective Co entsAinA-ntervention. B/ subse.uent Resolutions, the Court ordered the consolidation of the petitions. Respondents filed Co ents on the petitions, while so e of petitioners sub itted their respective Replies. Respondents, b/ Manifestation and Motion of August '(, $;;:, stated that the E"ecutive =epart ent shall thoroughl/ review the M<AAA= and pursue further negotiations to address the issues hurled against it, and thus oved to dis iss the cases. -n the succeeding e"change of pleadings, respondentsJ otion was et with vigorous opposition fro petitioners. !he cases were heard on oral argu ent on August '%, $$ and $(, $;;: that tac0led the following principal issues> '. Ghether the petitions have beco e oot and acade ic 4i5 insofar as the mandamus aspect is concerned, in view of the disclosure of official copies of the final draft of the Me orandu of Agree ent 4M<A5? and

4ii5 insofar as the prohibition aspect involving the Bocal 6overn ent Fnits is concerned, if it is considered that consultation has beco e fait accompli with the finali1ation of the draft? $. Ghether the constitutionalit/ and the legalit/ of the M<A is ripe for adjudication? 2. Ghether respondent 6overn ent of the Republic of the Philippines Peace Panel co itted grave abuse of discretion a ounting to lac0 or e"cess of jurisdiction when it negotiated and initiated the M<A visAWAvis -##FE# Nos. ) and %? ). Ghether there is a violation of the peopleJs right to infor ation on atters of public concern 4'(:& Constitution, Article ---, #ec. &5 under a state polic/ of full disclosure of all its transactions involving public interest 4'(:& Constitution, Article --, #ec. $:5 including public consultation under Republic Act No. &'3; 4B<CAB 6<EERNMEN! C<=E <9 '(('5C?D -f it is in the affir ative, whether prohibition under Rule 3% of the '((& Rules of Civil Procedure is an appropriate re ed/? %. Ghether b/ signing the M<A, the 6overn ent of the Republic of the Philippines would be B-N=-N6 itself a5 to create and recogni1e the Bangsa oro *uridical Entit/ 4B*E5 as a separate state, or a juridical, territorial or political subdivision not recogni1ed b/ law? b5 to revise or a end the Constitution and e"isting laws to confor to the M<A? c5 to concede to or recogni1e the clai of the Moro -sla ic Biberation 9ront for ancestral do ain in violation of Republic Act No. :2&' 4!+E -N=-6EN<F# PE<PBE# R-6+!# AC! <9 '((&5, particularl/ #ection 24g5 8 Chapter E-4=EB-NEA!-<N, REC<6N-!-<N <9 ANCE#!RAB =<MA-N#5C?D -f in the affir ative, whether the E"ecutive Branch has the authorit/ to so bind the 6overn ent of the Republic of the Philippines? 3. Ghether the inclusionIe"clusion of the Province of North Cotabato, Cities of Pa boanga, -ligan and -sabela, and the Municipalit/ of Bina on, Banao del Norte inIfro the areas covered b/ the projected Bangsa oro +o eland is a justiciable .uestion? and &. Ghether desistance fro signing the M<A derogates an/ prior valid co it ents of the 6overn ent of the Republic of the Philippines.$) !he Court, thereafter, ordered the parties to sub it their respective Me oranda. Most of the parties sub itted their e oranda on ti e. III. O8ER8IE- O THE MO$-$% As a necessar/ bac0drop to the consideration of the objections raised in the subject five petitions and si" petitionsAinAintervention against the M<AAA=, as

well as the two co entsAinAintervention in favor of the M<AAA=, the Court ta0es an overview of the M<A. !he M<AAA= identifies the Parties to it as the 6RP and the M-B9. Fnder the heading @!er s of Reference@ 4!<R5, the M<AAA= includes not onl/ four earlier agree ents between the 6RP and M-B9, but also two agree ents between the 6RP and the MNB9> the '(&3 !ripoli Agree ent, and the 9inal Peace Agree ent on the - ple entation of the '(&3 !ripoli Agree ent, signed on #epte ber $, '((3 during the ad inistration of President 9idel Ra os. !he M<AAA= also identifies as !<R two local statutes A the organic act for the Autono ous Region in Musli Mindanao 4ARMM5$% and the -ndigenous Peoples Rights Act 4-PRA5,$3 and several international law instru ents A the -B< Convention No. '3( Concerning -ndigenous and !ribal Peoples in -ndependent Countries in relation to the FN =eclaration on the Rights of the -ndigenous Peoples, and the FN Charter, a ong others. !he M<AAA= includes as a final !<R the generic categor/ of @co pact rights entrench ent e anating fro the regi e of dar-ul-mua@hada 4or territor/ under co pact5 and dar-ul-sulh 4or territor/ under peace agree ent5 that parta0es the nature of a treat/ device.@ =uring the height of the Musli E pire, earl/ Musli jurists tended to see the world through a si ple dichoto /> there was the dar-ul-<slam 4the Abode of -sla 5 and dar-ul-harb 4the Abode of Gar5. !he first referred to those lands where -sla ic laws held swa/, while the second denoted those lands where Musli s were persecuted or where Musli laws were outlawed or ineffective.$& !his wa/ of viewing the world, however, beca e ore co ple" through the centuries as the -sla ic world beca e part of the international co unit/ of nations. As Musli #tates entered into treaties with their neighbors, even with distant #tates and interAgovern ental organi1ations, the classical division of the world into dar-ul-<slam and dar-ul-harb eventuall/ lost its eaning. New ter s were drawn up to describe novel wa/s of perceiving nonAMusli territories. 9or instance, areas li0e dar-ul-mua@hada 4land of co pact5 and dar-ul-sulh 4land of treat/5 referred to countries which, though under a secular regi e, aintained peaceful and cooperative relations with Musli #tates, having been bound to each other b/ treat/ or agree ent. ,ar-ulaman 4land of order5, on the other hand, referred to countries which, though not bound b/ treat/ with Musli #tates, aintained freedo of religion for Musli s.$: -t thus appears that the @co pact rights entrench ent@ e anating fro the regi e of dar-ul-mua@hada and dar-ul-sulh si pl/ refers to all other agree ents between the M-B9 and the Philippine govern ent A the Philippines being the land of co pact and peace agree ent A that parta0e of the nature of a treat/ device, @treat/@ being broadl/ defined as @an/ sole n agree ent in writing that sets out understandings, obligations, and benefits for both parties which provides for a fra ewor0 that elaborates the principles declared in the CM<AAA=D.@$(

!he M<AAA= states that the Parties @+AEE A6REE= AN= AC,N<GBE=6E= A# 9<BB<G#,@ and starts with its ain bod/. T3e )!1" bo#5 o6 t3e MO$-$% 10 #1(1#e# 1"to 6o7r 0tr!"#0, "!)e:5, Co"ce/t0 !"# Pr1"c1/:e0, Terr1tor5, Re0o7rce0, !"# Go(er"!"ce. $. CONCEPTS $N% PRINCIPLES !his strand begins with the state ent that it is @the birthright of all Moros and all -ndigenous peoples of Mindanao to identif/ the selves and be accepted as QBangsa oros.J@ -t defines @,!"20!)oro /eo/:e@ as the natives or original inhabitants of Mindanao and its adjacent islands including Palawan and the #ulu archipelago at the time of conquest or colonization, and their descendants whether i"ed or of full blood, including their spouses.2; !hus, the concept of @Bangsa oro,@ as defined in this strand of the M<AAA=, includes not onl/ @Moros@ as traditionall/ understood even b/ Musli s,2' but all indigenous peoples of Mindanao and its adjacent islands. !he M<AAA= adds that the freedo of choice of indigenous peoples shall be respected. Ghat this freedo of choice consists in has not been specificall/ defined. !he M<AAA= proceeds to refer to the @,!"20!)oro 3o)e:!"#,@ the ownership of which is vested e"clusivel/ in the Bangsa oro people b/ virtue of their prior rights of occupation.2$ Both parties to the M<AAA= ac0nowledge that ancestral do ain does not for part of the public do ain.22 !he Bangsa oro people are ac0nowledged as having the right to selfA governance, which right is said to be rooted on ancestral territorialit/ e"ercised originall/ under the su1erain authorit/ of their sultanates and the #at a #angampong "u +anaw. !he sultanates were described as states or @"arajaanI"adatuan@ rese bling a bod/ politic endowed with all the ele ents of a nationAstate in the odern sense.2) !he M<AAA= thus grounds the right to selfAgovernance of the Bangsa oro people on the past su1erain authorit/ of the sultanates. As gathered, the territor/ defined as the Bangsa oro ho eland was ruled b/ several sultanates and, specificall/ in the case of the Maranao, b/ the #at a #angampong "u +anaw, a confederation of independent principalities 4panga pong5 each ruled b/ datus and sultans, none of who was supre e over the others.2% !he M<AAA= goes on to describe the Bangsa oro people as @the Q9irst NationJ with defined territor/ and with a s/ste of govern ent having entered into treaties of a it/ and co erce with foreign nations.@ !he ter @ 1r0t N!t1o"@ is of Canadian origin referring to the indigenous peoples of that territor/, particularl/ those 0nown as -ndians. -n Canada, each of these indigenous peoples is e.uall/ entitled to be called @9irst Nation,@ hence, all of the are usuall/ described collectivel/ b/ the plural @9irst Nations.@23 !o that e"tent, the M<AAA=, b/ identif/ing the Bangsa oro people as @t3e 9irst Nation@ A suggesting its e"clusive entitle ent to that designation A departs fro the Canadian usage of the ter .

!he M<AAA= then entions for the first ti e the @ ,!"20!)oro .7r1#1c!: E"t1t5@ 4B*E5 to which it grants the authorit/ and jurisdiction over the Ancestral =o ain and Ancestral Bands of the Bangsa oro.2& ,. TERRITOR+ !he territor/ of the Bangsa oro ho eland is described as the land ass as well as the ariti e, terrestrial, fluvial and alluvial do ains, including the aerial do ain and the at ospheric space above it, e bracing the MindanaoA #uluAPalawan geographic region.2: More specificall/, the core of the B*E is defined as the present geographic area of the ARMM A thus constituting the following areas> Banao del #ur, Maguindanao, #ulu, !awiA!awi, Basilan, and Marawi Cit/. #ignificantl/, this core also includes certain unicipalities of Banao del Norte that voted for inclusion in the ARMM in the $;;' plebiscite.2( <utside of this core, the B*E is to cover other provinces, cities, unicipalities and baranga/s, which are grouped into two categories, Categor/ A and Categor/ B. Each of these areas is to be subjected to a plebiscite to be held on different dates, /ears apart fro each other. !hus, Categor/ A areas are to be subjected to a plebiscite not later than twelve 4'$5 onths following the signing of the M<AAA=.); Categor/ B areas, also called @#pecial -ntervention Areas,@ on the other hand, are to be subjected to a plebiscite twent/Afive 4$%5 /ears fro the signing of a separate agree ent A the Co prehensive Co pact.)' !he Parties to the M<AAA= stipulate that the B*E shall have jurisdiction over all natural resources within its @internal waters,@ defined as e"tending fifteen 4'%5 0ilo eters fro the coastline of the B*E area?)$ that the B*E shall also have @territorial waters,@ which shall stretch be/ond the B*E internal waters up to the baselines of the Republic of the Philippines 4RP5 south east and south west of ainland Mindanao? and that within these territorial waters, the B*E and the @Central 6overn ent@ 4used interchangeabl/ with RP5 shall e"ercise Fo1"t jurisdiction, authorit/ and anage ent over all natural resources.)2 /otably' the jurisdiction over the internal waters is not similarly described as Ajoint.A !he M<AAA= further provides for the 03!r1"2 of inerals on the territorial waters between the Central 6overn ent and the B*E, in favor of the latter, through production sharing and econo ic cooperation agree ent. )) !he activities which the Parties are allowed to conduct on the territorial waters are enu erated, a ong which are the e"ploration and utili1ation of natural resources, regulation of shipping and fishing activities, and the enforce ent of police and safet/ easures.)% There is no similar provision on the sharing of minerals and allowed activities with respect to the internal waters of the !(6. C. RESOURCES !he M<AAA= states that the B*E is free to enter into an/ econo ic cooperation and trade relations with foreign countries and shall have the option to establish trade issions in those countries. #uch relationships and

understandings, however, are not to include aggression against the 6RP. !he B*E a/ also enter into environ ental cooperation agree ents. )3 !he e=ternal defense of the B*E is to re ain the dut/ and obligation of the Central 6overn ent. !he Central 6overn ent is also bound to @ta0e necessar/ steps to ensure the B*EJs participation in international eetings and events@ li0e those of the A#EAN and the speciali1ed agencies of the FN. !he B*E is to be entitled to participate in Philippine official issions and delegations for the negotiation of border agree ents or protocols for environ ental protection and e.uitable sharing of inco es and revenues involving the bodies of water adjacent to or between the islands for ing part of the ancestral do ain.)& Gith regard to the right of e"ploring for, producing, and obtaining all potential sources of energ/, petroleu , fossil fuel, ineral oil and natural gas, the jurisdiction and control thereon is to be vested in the B*E @as the part/ having control within its territorial jurisdiction.@ !his right carries the proviso that, @in ti es of national e ergenc/, when public interest so re.uires,@ the Central 6overn ent a/, for a fi"ed period and under reasonable ter s as a/ be agreed upon b/ both Parties, assu e or direct the operation of such resources.): !he sharing between the Central 6overn ent and the B*E of total production pertaining to natural resources is to be &%>$% in favor of the B*E.)( !he M<AAA= provides that legiti ate grievances of the Bangsa oro people arising fro an/ unjust dispossession of their territorial and proprietar/ rights, custo ar/ land tenures, or their arginali1ation shall be ac0nowledged. Ghenever restoration is no longer possible, reparation is to be in such for as utuall/ deter ined b/ the Parties.%; !he B*E a/ )o#165 or c!"ce: the forest concessions, ti ber licenses, contracts or agree ents, ining concessions, Mineral Production and #haring Agree ents 4MP#A5, -ndustrial 9orest Manage ent Agree ents 4-9MA5, and other land tenure instru ents granted b/ the Philippine 6overn ent, including those issued b/ the present ARMM.%' %. GO8ERN$NCE !he M<AAA= binds the Parties to invite a ultinational thirdApart/ to observe and onitor the i ple entation of the Co)/re3e"01(e Co)/!ct. !his co pact is to e bod/ the @details for the effective enforce ent@ and @the echanis s and odalities for the actual i ple entation@ of the M<AAA=. !he M<AAA= e"plicitl/ provides that the participation of the third part/ shall not in an/ wa/ affect the status of the relationship between the Central 6overn ent and the B*E.%$ T3e I!00oc1!t1(eI re:!t1o"031/ bet?ee" t3e Ce"tr!: Go(er")e"t !"# t3e ,.E !he M<AAA= describes the relationship of the Central 6overn ent and the B*E as @associative,@ characteri1ed b/ shared authorit/ and responsibilit/. And it states that the structure of governance is to be based on e"ecutive,

legislative, judicial, and ad inistrative institutions with defined powers and functions in the Co prehensive Co pact. !he M<AAA= provides that its provisions re.uiring @a end ents to the e"isting legal fra ewor0@ shall ta0e effect upon signing of the Co prehensive Co pact and upon effecting the aforesaid a end ents, with due regard to the "o"-#ero2!t1o" o6 /r1or !2ree)e"t0 and within the stipulated ti efra e to be contained in the Co prehensive Co pact. As $ill )e iscusse later, much o/ the present controversy hangs on the legality o/ this provision. !he B*E is granted the power to build, develop and aintain its own institutions inclusive of civil service, electoral, financial and ban0ing, education, legislation, legal, econo ic, police and internal securit/ force, judicial s/ste and correctional institutions, the details of which shall be discussed in the negotiation of the co prehensive co pact. As stated earl/ on, the M<AAA= was set to be signed on August %, $;;: b/ Rodolfo 6arcia and Mohagher -.bal, Chairpersons of the Peace Negotiating Panels of the 6RP and the M-B9, respectivel/. /otably' the penultimate paragraph of the 5O)-), identifies the signatories as Athe representatives of the #arties'A meaning the G+# and 5<*8 themselves' and not merely of the negotiating panels.%2 -n addition, the signature page of the M<AAA= states that it is @G-!NE##E= BH@ =atu0 <th an Bin Abd Ra1a0, #pecial Adviser to the Pri e Minister of Mala/sia, @EN=<R#E= BH@ A bassador #a/ed El asr/, Adviser to <rgani1ation of the -sla ic Conference 4<-C5 #ecretar/ 6eneral and #pecial Envo/ for Peace Process in #outhern Philippines, and #-6NE= @-N !+E PRE#ENCE <9@ =r. Albert 6. Ro ulo, #ecretar/ of 9oreign Affairs of RP and =atoJ #eri Fta a =r. Rais Bin Hati , Minister of 9oreign Affairs, Mala/sia, all of who were scheduled to sign the Agree ent last August %, $;;:. Anne"ed to the M<AAA= are two docu ents containing the respective lists cum aps of the provinces, unicipalities, and baranga/s under Categories A and B earlier entioned in the discussion on the strand on !ERR-!<RH. I8. PROCE%UR$L ISSUES $. RIPENESS !he power of judicial review is li ited to actual cases or controversies. %) Courts decline to issue advisor/ opinions or to resolve h/pothetical or feigned proble s, or ere acade ic .uestions.%% !he li itation of the power of judicial review to actual cases and controversies defines the role assigned to the judiciar/ in a tripartite allocation of power, to assure that the courts will not intrude into areas co itted to the other branches of govern ent. %3 An actual case or controvers/ involves a conflict of legal rights, an assertion of opposite legal clai s, susceptible of judicial resolution as distinguished fro a h/pothetical or abstract difference or dispute. !here ust be a contrariet/ of legal rights that can be interpreted and enforced on the basis of e"isting law and jurisprudence.%& !he Court can decide the constitutionalit/ of

an act or treat/ onl/ when a proper case between opposing parties is sub itted for judicial deter ination.%: Related to the re.uire ent of an actual case or controvers/ is the re.uire ent of ripeness. A .uestion is ripe for adjudication when the act being challenged has had a direct adverse effect on the individual challenging it.%( 9or a case to be considered ripe for adjudication, it is a prere.uisite that so ething had then been acco plished or perfor ed b/ either branch before a court a/ co e into the picture, 3; and the petitioner ust allege the e"istence of an i ediate or threatened injur/ to itself as a result of the challenged action.3' +e ust show that he has sustained or is i ediatel/ in danger of sustaining so e direct injur/ as a result of the act co plained of.3$ !he #olicitor 6eneral argues that there is no justiciable controvers/ that is ripe for judicial review in the present petitions, reasoning that !he unsigned M<AAA= is si pl/ a list of consensus points subject to further negotiations and legislative enact ents as well as constitutional processes ai ed at attaining a final peaceful agree ent. #i pl/ put, the M<AAA= re ains to be a proposal that does not auto aticall/ create legall/ de andable rights and obligations until the list of operative acts re.uired have been dul/ co plied with. " " " """" -n the cases at bar, it is respectfull/ sub itted that this +onorable Court has no authorit/ to pass upon issues based on h/pothetical or feigned constitutional proble s or interests with no concrete bases. Considering the preli inar/ character of the M<AAA=, there are no concrete acts that could possibl/ violate petitionersJ and intervenorsJ rights since the acts co plained of are ere conte plated steps toward the for ulation of a final peace agree ent. Plainl/, petitioners and intervenorsJ perceived injur/, if at all, is erel/ i aginar/ and illusor/ apart fro being unfounded and based on ere conjectures. 4Fnderscoring supplied5 !he #olicitor 6eneral cites32 the following provisions of the M<AAA=> TERRITOR+ """" $. !oward this end, the Parties enter into the following stipulations> """" d. Githout derogating fro the re.uire ents of prior agree ents, the 6overn ent stipulates to conduct and deliver, using all possible legal easures, within twelve 4'$5 onths following the signing of the M<AAA=, a plebiscite covering the areas as enu erated in the list and depicted in the ap as Categor/ A attached herein 4the @Anne"@5. !he Anne" constitutes an integral part of this fra ewor0 agree ent. !oward this end, the Parties shall endeavor to co plete the negotiations and resolve all outstanding issues on the

Co prehensive Co pact within fifteen 4'%5 onths fro the signing of the M<AAA=. """" GO8ERN$NCE """" &. !he Parties agree that echanis s and odalities for the actual i ple entation of this M<AAA= shall be spelt out in the Co prehensive Co pact to utuall/ ta0e such steps to enable it to occur effectivel/. An/ provisions of the M<AAA= re.uiring a end ents to the e"isting legal fra ewor0 shall co e into force upon the signing of a Co prehensive Co pact and upon effecting the necessar/ changes to the legal fra ewor0 with due regard to nonAderogation of prior agree ents and within the stipulated ti efra e to be contained in the Co prehensive Co pact.3) 4Fnderscoring supplied5 !he #olicitor 6eneralJs argu ents fail to persuade. Concrete acts under the M<AAA= are not necessar/ to render the present controvers/ ripe. -n #imentel' (r. v. )guirre,3% this Court held> " " " CBD/ the ere enact ent of the .uestioned law or the approval of the challenged action, the dispute is said to have ripened into a judicial controvers/ even without an/ other overt act. -ndeed, even a singular violation of the Constitution andIor the law is enough to awa0en judicial dut/. """" B/ the sa e to0en, when an act of the President, who in our constitutional sche e is a coe.ual of Congress, is seriousl/ alleged to have infringed the Constitution and the laws " " " settling the dispute beco es the dut/ and the responsibilit/ of the courts. 33 -n Santa 8e <ndependent School ,istrict v. ,oe,3& the Fnited #tates #upre e Court held that the challenge to the constitutionalit/ of the schoolJs polic/ allowing studentAled pra/ers and speeches before ga es was ripe for adjudication, even if no public pra/er had /et been led under the polic/, because the polic/ was being challenged as unconstitutional on its face. 3: !hat the law or act in .uestion is not /et effective does not negate ripeness. 9or e"a ple, in /ew Hor" v. Bnited States,3( decided in '(($, the Fnited #tates #upre e Court held that the action b/ the #tate of New Hor0 challenging the provisions of the BowABevel Radioactive Gaste Polic/ Act was ripe for adjudication even if the .uestioned provision was not to ta0e effect until *anuar/ ', '((3, because the parties agreed that New Hor0 had to ta0e i ediate action to avoid the provisionJs conse.uences. &; !he present petitions pra/ for Certiorari,&' Prohibition, and Manda us. Certiorari and Prohibition are re edies granted b/ law when an/ tribunal, board or officer has acted, in the case of certiorari, or is proceeding, in the case of prohibition, without or in e"cess of its jurisdiction or with grave abuse of discretion a ounting to lac0 or e"cess of jurisdiction.&$ Manda us is a

re ed/ granted b/ law when an/ tribunal, corporation, board, officer or person unlawfull/ neglects the perfor ance of an act which the law specificall/ enjoins as a dut/ resulting fro an office, trust, or station, or unlawfull/ e"cludes another fro the use or enjo/ ent of a right or office to which such other is entitled.&2 Certiorari, Manda us and Prohibition are appropriate re edies to raise constitutional issues and to review andIor prohibitInullif/, when proper, acts of legislative and e"ecutive officials. &) !he authorit/ of the 6RP Negotiating Panel is defined b/ E"ecutive <rder No. 2 4E.<. No. 25, issued on 9ebruar/ $:, $;;'. &% !he said e"ecutive order re.uires that @CtDhe govern entJs polic/ fra ewor0 for peace, including the s/ste atic approach and the ad inistrative structure for carr/ing out the co prehensive peace process " " " be governed b/ this E"ecutive <rder.@ &3 !he present petitions allege that respondents 6RP Panel and PAPP Esperon drafted the ter s of the M<AAA= without consulting the local govern ent units or co unities affected, nor infor ing the of the proceedings. As will be discussed in greater detail later, such o ission, b/ itself, constitutes a departure by respondents from their mandate under 6.O. /o. F. 9urther ore, the petitions allege that the provisions of the M<AAA= violate the Constitution. !he M<AAA= provides that @an/ provisions of the M<AAA= re.uiring a end ents to the e"isting legal fra ewor0 shall co e into force upon the signing of a Co prehensive Co pact and upon effecting the necessar/ changes to the legal fra ewor0,@ i pl/ing an a end ent of the Constitution to acco odate the M<AAA=. !his stipulation, in effect, 27!r!"tee# to the M-B9 the a end ent of the Constitution. Such act constitutes another violation of its authority. Again, these points will be discussed in ore detail later. As the petitions allege acts or o issions on the part of respondent that e4cee# t3e1r !7t3or1t5, b/ violating their duties under E.<. No. 2 and the provisions of the Constitution and statutes, the petitions a0e a prima facie case for Certiorari, Prohibition, and Manda us, and an actual case or controvers/ ripe for adjudication e"ists. -3e" !" !ct o6 ! br!"c3 o6 2o(er")e"t 10 0er1o70:5 !::e2e# to 3!(e 1"6r1"2e# t3e Co"0t1t7t1o", 1t beco)e0 "ot o":5 t3e r123t b7t 1" 6!ct t3e #7t5 o6 t3e F7#1c1!r5 to 0ett:e t3e #10/7te.&& ,. LOCUS ST$N%I 9or a part/ to have locus standi, one ust allege @such a personal sta0e in the outco e of the controvers/ as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largel/ depends for illu ination of difficult constitutional .uestions.@ &: Because constitutional cases are often public actions in which the relief sought is li0el/ to affect other persons, a preli inar/ .uestion fre.uentl/ arises as to this interest in the constitutional .uestion raised. &( Ghen suing as a citizen, the person co plaining ust allege that he has been or is about to be denied so e right or privilege to which he is lawfull/ entitled or that he is about to be subjected to so e burdens or penalties b/

reason of the statute or act co plained of.:; Ghen the issue concerns a public right, it is sufficient that the petitioner is a citi1en and has an interest in the e"ecution of the laws.:' 9or a ta=payer, one is allowed to sue where there is an assertion that public funds are illegall/ disbursed or deflected to an illegal purpose, or that there is a wastage of public funds through the enforce ent of an invalid or unconstitutional law.:$ !he Court retains discretion whether or not to allow a ta"pa/erJs suit.:2 -n the case of a legislator or member of ongress, an act of the E"ecutive that injures the institution of Congress causes a derivative but nonetheless substantial injur/ that can be .uestioned b/ legislators. A e ber of the +ouse of Representatives has standing to aintain inviolate the prerogatives, powers and privileges vested b/ the Constitution in his office. :) An organization a/ be granted standing to assert the rights of its e bers,:% but the ere invocation b/ the <ntegrated !ar of the #hilippines or any member of the legal profession of the dut/ to preserve the rule of law does not suffice to clothe it with standing. :3 As regards a local government unit 4B6F5, it can see0 relief in order to protect or vindicate an interest of its own, and of the other B6Fs. :& -ntervenors, eanwhile, a/ be given legal standing upon showing of facts that satisf/ the re.uire ents of the law authori1ing intervention, :: such as a legal interest in the atter in litigation, or in the success of either of the parties. -n an/ case, the Court has discretion to rela" the procedural technicalit/ on locus standi, given the liberal attitude it has e"ercised, highlighted in the case of ,avid v. 5acapagal-)rroyo,:( where technicalities of procedure were brushed aside, the constitutional issues raised being of para ount public interest or of transcendental i portance deserving the attention of the Court in view of their seriousness, novelt/ and weight as precedents. (; !he CourtJs forbearing stance on locus standi on issues involving constitutional issues has for its purpose the protection of funda ental rights. -n not a few cases, the Court, in 0eeping with its dut/ under the Constitution to deter ine whether the other branches of govern ent have 0ept the selves within the li its of the Constitution and the laws and have not abused the discretion given the , has brushed aside technical rules of procedure.(' -n the petitions at bar, petitioners Pro(1"ce o6 Nort3 Cot!b!to 46.R. No. ':2%('5 Pro(1"ce o6 =!)bo!"2! #e: Norte 46.R. No. ':2(%'5, C1t5 o6 I:12!" 46.R. No. ':2:(25 and C1t5 o6 =!)bo!"2! 46.R. No. ':2&%$5 and petitionersAinAintervention Pro(1"ce o6 S7:t!" @7#!r!t, C1t5 o6 I0!be:! and M7"1c1/!:1t5 o6 L1"!)o" have locus standi in view of the direct and substantial injur/ that the/, as B6Fs, would suffer as their territories, whether in whole or in part, are to be included in the intended do ain of the B*E. !hese petitioners allege that the/ did not vote for their inclusion in the ARMM

which would be e"panded to for the B*E territor/. PetitionersJ legal standing is thus be/ond doubt. -n 6.R. No. ':2(3$, petitioners Er"e0to M!ce#!, .eFo)!r ,1"!5 and $E71:1"o P1)e"te: III would have no standing as citi1ens and ta"pa/ers for their failure to specif/ that the/ would be denied so e right or privilege or there would be wastage of public funds. !he fact that the/ are a for er #enator, an incu bent a/or of Ma0ati Cit/, and a resident of Caga/an de <ro, respectivel/, is of no conse.uence. Considering their invocation of the transcendental i portance of the issues at hand, however, the Court grants the standing. -ntervenors r!";:1" %r1:o" and $#e: T!)!"o, in alleging their standing as ta"pa/ers, assert that govern ent funds would be e"pended for the conduct of an illegal and unconstitutional plebiscite to delineate the B*E territor/. <n that score alone, the/ can be given legal standing. !heir allegation that the issues involved in these petitions are of @undeniable transcendental i portance@ clothes the with added basis for their personalit/ to intervene in these petitions. Gith regard to Se"!tor M!"7e: Ro4!0, his standing is pre ised on his being a e ber of the #enate and a citi1en to enforce co pliance b/ respondents of the publicJs constitutional right to be infor ed of the M<AAA=, as well as on a genuine legal interest in the atter in litigation, or in the success or failure of either of the parties. +e thus possesses the re.uisite standing as an intervenor. Gith respect to -ntervenors R75 E:1!0 Lo/eH, as a for er congress an of the 2rd district of =avao Cit/, a ta"pa/er and a e ber of the Bagobo tribe? Carlo B. 6o e1, et al., as e bers of the -BP Palawan chapter, citi1ens and ta"pa/ers? M!r1"o R1#!o, as ta"pa/er, resident and e ber of the Sangguniang #anlungsod of Cotabato Cit/? and @101" ,74!"1, as ta"pa/er, the/ failed to allege an/ proper legal interest in the present petitions. *ust the sa e, the Court e"ercises its discretion to rela" the procedural technicalit/ on locus standi given the para ount public interest in the issues at hand. -ntervening respondents M70:1) M7:t1-Sector!: Mo(e)e"t 6or Pe!ce !"# %e(e:o/)e"t, an advocac/ group for justice and the attain ent of peace and prosperit/ in Musli Mindanao? and M70:1) Le2!: $0010t!"ce o7"#!t1o" I"c., a nonAgovern ent organi1ation of Musli law/ers, allege that the/ stand to be benefited or prejudiced, as the case a/ be, in the resolution of the petitions concerning the M<AAA=, and pra/s for the denial of the petitions on the grounds therein stated. #uch legal interest suffices to clothe the with standing. ,. MOOTNESS Respondents insist that the present petitions have been rendered oot with the satisfaction of all the reliefs pra/ed for b/ petitioners and the subse.uent pronounce ent of the E"ecutive #ecretar/ that @CnDo atter what the #upre e Court ulti atel/ decidesC,D the govern ent will not sign the M<A.@ ($

-n lending credence to this polic/ decision, the #olicitor 6eneral points out that the President had alread/ disbanded the 6RP Peace Panel. (2 -n ,avid v. 5acapagal-)rroyo,() this Court held that the @ oot and acade ic@ principle not being a agical for ula that auto aticall/ dissuades courts in resolving a case, it will decide cases, otherwise oot and acade ic, if it finds that 4a5 there is a grave violation of the Constitution? (% 4b5 the situation is of e"ceptional character and para ount public interest is involved? (3 4c5 the constitutional issue raised re.uires for ulation of controlling principles to guide the bench, the bar, and the public?(& and 4d5 the case is capable of repetition /et evading review.(: Another e"clusionar/ circu stance that a/ be considered is where there is a voluntar/ cessation of the activit/ co plained of b/ the defendant or doer. !hus, once a suit is filed and the doer voluntaril/ ceases the challenged conduct, it does not auto aticall/ deprive the tribunal of power to hear and deter ine the case and does not render the case oot especiall/ when the plaintiff see0s da ages or pra/s for injunctive relief against the possible recurrence of the violation.(( !he present petitions fall s.uarel/ into these e"ceptions to thus thrust the into the do ain of judicial review. !he grounds cited above in ,avid are just as applicable in the present cases as the/ were, not onl/ in ,avid, but also in #rovince of !atangas v. +omulo';; and 5analo v. alderon';' where the Court si ilarl/ decided the on the erits, supervening events that would ordinaril/ have rendered the sa e oot notwithstanding. Pet1t1o"0 "ot )oote# Contrar/ then to the asseverations of respondents, the nonAsigning of the M<AAA= and the eventual dissolution of the 6RP Peace Panel did not oot the present petitions. <t bears emphasis that the signing of the 5O)-), did not push through due to the ourt@s issuance of a Temporary +estraining Order. Contrar/ too to respondentsJ position, the M<AAA= cannot be considered a ere @list of consensus points,@ especiall/ given its "o)e"c:!t7re, the "ee# to 3!(e 1t 012"e# or 1"1t1!:e# b/ all the parties concerned on August %, $;;:, and the 6!r-re!c31"2 Co"0t1t7t1o"!: 1)/:1c!t1o"0 of these @consensus points,@ fore ost of which is the creation of the B*E. -n fact, as what will, in the ain, be discussed, t3ere 10 ! co))1t)e"t o" t3e /!rt o6 re0/o"#e"t0 to !)e"# !"# e66ect "ece00!r5 c3!"2e0 to t3e e410t1"2 :e2!: 6r!)e?or; 6or cert!1" /ro(101o"0 o6 t3e MO$-$% to t!;e e66ect. Conse.uentl/, the present petitions are not confined to the ter s and provisions of the M<AAA=, but to other o"-2o1"2 and 67t7re negotiations and agree ents necessar/ for its reali1ation. !he petitions have not, therefore, been rendered oot and acade ic si pl/ b/ the public disclosure of the M<AAA=,';$ the anifestation that it will not be signed as well as the disbanding of the 6RP Panel not withstanding. Pet1t1o"0 !re 1)b7e# ?1t3 /!r!)o7"t /7b:1c 1"tere0t

!here is no gainsa/ing that the petitions are i bued with para ount public interest, involving a significant part of the countr/Js territor/ and the wideA ranging political odifications of affected B6Fs. !he assertion t3!t t3e MO$-$% 10 07bFect to 67rt3er :e2!: e"!ct)e"t0 1"c:7#1"2 /o001b:e Co"0t1t7t1o"!: !)e"#)e"t0 )ore t3!" e(er /ro(1#e0 1)/et70 6or t3e Co7rt to 6or)7:!te co"tro::1"2 /r1"c1/:e0 to 271#e t3e be"c3, t3e b!r, t3e /7b:1c !"#, 1" t310 c!0e, t3e 2o(er")e"t !"# 1t0 "e2ot1!t1"2 e"t1t5. Respondents cite Suplico v. /6,)' et al.';2 where the Court did not @pontificatCeD on issues which no longer legiti atel/ constitute an actual case or controvers/ Cas thisD will do ore har than good to the nation as a whole.@ !he present petitions ust be differentiated fro Suplico. Pri aril/, in Suplico, what was assailed and eventuall/ cancelled was a standAalone govern ent procure ent contract for a national broadband networ0 involving a oneAti e contractual relation between two partiesAthe govern ent and a private foreign corporation. As the issues therein involved specific govern ent procure ent policies and standard principles on contracts, the ajorit/ opinion in Suplico found nothing e"ceptional therein, the factual circu stances being peculiar onl/ to the transactions and parties involved in the controvers/. T3e MO$-$% 10 /!rt o6 ! 0er1e0 o6 !2ree)e"t0 -n the present controvers/, the M<AAA= is a 012"161c!"t /!rt o6 ! 0er1e0 o6 !2ree)e"t0 necessar/ to carr/ out the !ripoli Agree ent $;;'. !he M<AA A= which dwells on the Ancestral =o ain Aspect of said !ripoli Agree ent is the third such co ponent to be underta0en following the i ple entation of the #ecurit/ Aspect in August $;;' and the +u anitarian, Rehabilitation and =evelop ent Aspect in Ma/ $;;$. Accordingl/, even if the E"ecutive #ecretar/, in his Me orandu of August $:, $;;: to the #olicitor 6eneral, has stated that @no atter what the #upre e Court ulti atel/ decidesC,D the govern ent will not sign the M<ACA A=D,@ ootness will not set in in light of the ter s of the !ripoli Agree ent $;;'. Nee# to 6or)7:!te /r1"c1/:e0-271#e:1"e0 #urel/, the present M<AAA= can be renegotiated or another one will be drawn 7/ to c!rr5 o7t t3e $"ce0tr!: %o)!1" $0/ect o6 t3e Tr1/o:1 $2ree)e"t 2**1, in another or in an/ for , which could contain si ilar or significantl/ drastic provisions. Ghile the Court notes the word of the E"ecutive #ecretar/ that the govern ent @is co itted to securing an agree ent that is both constitutional and e.uitable because that is the onl/ wa/ that longAlasting peace can be assured,@ it is inded to render a decision on the erits in the present petitions to 6or)7:!te co"tro::1"2 /r1"c1/:e0 to 271#e t3e be"c3, t3e b!r, t3e /7b:1c !"#, )o0t e0/ec1!::5, t3e 2o(er")e"t 1" "e2ot1!t1"2 ?1t3 t3e MIL re2!r#1"2 $"ce0tr!: %o)!1".

Respondents invite the CourtJs attention to the separate opinion of then Chief *ustice Arte io Panganiban in Sanla"as v. +eyes';) in which he stated that the doctrine of @capable of repetition /et evading review@ can override ootness, @provided the part/ raising it in a proper case has been andIor continue to be prejudiced or da aged as a direct result of their issuance.@ !he/ contend that the Court ust have jurisdiction over the subject atter for the doctrine to be invo0ed. !he present petitions all contain pra/ers for Prohibition over which this Court e"ercises original jurisdiction. Ghile 6.R. No. ':2:(2 4Cit/ of -ligan v. 6RP5 is a petition for -njunction and =eclarator/ Relief, the Court will treat it as one for Prohibition as it has far reaching i plications and raises .uestions that need to be resolved.';% At all events, the Court has jurisdiction over ost if not the rest of the petitions. -ndeed, the present petitions afford a proper venue for the Court to again appl/ the doctrine i ediatel/ referred to as what it had done in a nu ber of land ar0 cases.';3 !here is a reasonable e"pectation that petitioners, particularl/ the Provinces of North Cotabato, Pa boanga del Norte and #ultan ,udarat, the Cities of Pa boanga, -ligan and -sabela, and the Municipalit/ of Bina on, will again be subjected to the sa e proble in the future as respondentsJ actions are capable of repetition, in another or an/ for . -t is with respect to the pra/ers for Manda us that the petitions have beco e oot, respondents having, b/ Co pliance of August &, $;;:, provided this Court and petitioners with official copies of the final draft of the M<AAA= and its anne"es. !oo, intervenors have been furnished, or have procured for the selves, copies of the M<AAA=. 8. SU,ST$NTI8E ISSUES As culled fro the Petitions and PetitionsAinA-ntervention, there are basicall/ two #FB#!AN!-EE issues to be resolved, one relating to the anner in which the M<AAA= was negotiated and finali1ed, the other relating to its provisions, viz> '. =id respondents violate constitutional and statutor/ provisions on public consultation and the right to infor ation when the/ negotiated and later initialed the M<AAA=M $. =o the contents of the M<AAA= violate the Constitution and the lawsM ON THE IRST SU,ST$NTI8E ISSUE Petitioners invo0e their constitutional r123t to 1"6or)!t1o" o" )!tter0 o6 /7b:1c co"cer", as provided in #ection &, Article --- on the Bill of Rights> #ec. &. !he right of the people to infor ation on atters of public concern shall be recogni1ed. Access to official records, and to docu ents, and papers pertaining to official acts, transactions, or decisions, as well as to govern ent research data used as basis for polic/ develop ent, shall be afforded the citi1en, subject to such li itations as a/ be provided b/ law.';&

As earl/ as '():, in Subido v. Ozaeta,';: the Court has recogni1ed the statutor/ right to e"a ine and inspect public records, a right which was eventuall/ accorded constitutional status. !he right of access to public docu ents, as enshrined in both the '(&2 Constitution and the '(:& Constitution, has been recogni1ed as a selfA e"ecutor/ constitutional right.';( -n the '(&3 case of !aldoza v. :on. (udge ,imaano,''; the Court ruled that access to public records is predicated on the right of the people to ac.uire infor ation on atters of public concern since, undoubtedl/, in a de ocrac/, the pubic has a legiti ate interest in atters of social and political significance. " " " !he incorporation of this right in the Constitution is a recognition of the funda ental role of free e"change of infor ation in a de ocrac/. !here can be no realistic perception b/ the public of the nationJs proble s, nor a eaningful de ocratic decisionA a0ing if the/ are denied access to infor ation of general interest. -nfor ation is needed to enable the e bers of societ/ to cope with the e"igencies of the ti es. As has been aptl/ observed> @Maintaining the flow of such infor ation depends on protection for both its ac.uisition and its disse ination since, if either process is interrupted, the flow inevitabl/ ceases.@ " " "''' <n the same way that free discussion enables members of society to cope with the e=igencies of their time' access to information of general interest aids the people in democratic decision-ma"ing by giving them a better perspective of the vital issues confronting the nation ''$ so that they may be able to criticize and participate in the affairs of the government in a responsible' reasonable and effective manner. <t is by ensuring an unfettered and uninhibited e=change of ideas among a well-informed public that a government remains responsive to the changes desired by the people. ''2 T3e MO$-$% 10 ! )!tter o6 /7b:1c co"cer" !hat the subject of the infor ation sought in the present cases is a atter of public concern'') faces no serious challenge. -n fact, respondents ad it that the M<AAA= is indeed of public concern.''% -n previous cases, the Court found that the regularit/ of real estate transactions entered in the Register of =eeds,''3 the need for ade.uate notice to the public of the various laws, ''& the civil service eligibilit/ of a public e plo/ee,'': the proper anage ent of 6#-# funds allegedl/ used to grant loans to public officials, ''( the recover/ of the MarcosesJ alleged illAgotten wealth,'$; and the identit/ of part/Alist no inees,'$' a ong others, are atters of public concern. Bndoubtedly' the '&A6AD su)>ect o/ the present cases is o/ pu)lic concern' involving as it does the sovereignty an territorial integrity o/ the State' which directly affects the lives of the public at large. Matters of public concern covered b/ the right to infor ation include steps and negotiations leading to the consu ation of the contract. -n not distinguishing as to the e"ecutor/ nature or co ercial character of agree ents, the Court has categoricall/ ruled>

" " " C!Dhe right to infor ation @contemplates inclusion o/ negotiations lea ing to the consummation o/ the transaction .@ Certainl/, a consu ated contract is not a re.uire ent for the e"ercise of the right to infor ation. <therwise, the people can never e"ercise the right if no contract is consu ated, and if one is consu ated, it a/ be too late for the public to e"pose its defects. Re.uiring a consu ated contract will 0eep the public in the dar0 until the contract, which a/ be grossl/ disadvantageous to the govern ent or even illegal, beco es fait accompli. !his negates the #tate polic/ of full transparenc/ on atters of public concern, a situation which the fra ers of the Constitution could not have intended. #uch a re.uire ent will prevent the citi1enr/ fro participating in the public discussion of an/ propose contract, effectivel/ truncating a basic right enshrined in the Bill of Rights. Ge can allow neither an e asculation of a constitutional right, nor a retreat b/ the #tate of its avowed @polic/ of full disclosure of all its transactions involving public interest.@'$$ 4E phasis and italics in the original5 -ntended as a @splendid symmetry@'$2 to the right to infor ation under the Bill of Rights is the polic/ of public disclosure under #ection $:, Article -- of the Constitution reading> #ec. $:. #ubject to reasonable conditions prescribed b/ law, the #tate adopts and i ple ents a polic/ of full public disclosure of all its transactions involving public interest.'$) !he polic/ of full public disclosure enunciated in aboveA.uoted #ection $: complements the right of access to infor ation on atters of public concern found in the Bill of Rights. !he right to infor ation guarantees the right of the people to de and infor ation, while #ection $: recogni1es the dut/ of officialdo to give infor ation even if nobod/ de ands.'$% !he polic/ of public disclosure establishes a concrete ethical principle for the conduct of public affairs in a genuinel/ open de ocrac/, with the peopleJs right to 0now as the centerpiece. -t is a andate of the #tate to be accountable b/ following such polic/.'$3 !hese provisions are vital to the e"ercise of the freedo of e"pression and essential to hold public officials at all ti es accountable to the people.'$& Ghether #ection $: is selfAe"ecutor/, the records of the deliberations of the Constitutional Co ission so disclose> MR. #FAREP. And since this is not selfAe"ecutor/, this polic/ will not be enunciated or will not be in force and effect until after Congress shall have provided it. MR. <PBE. - e"pect it to influence the cli ate of public ethics i ediatel/ but, of course, the i ple enting law will have to be enacted b/ Congress, Mr. Presiding <fficer. '$: !he following discourse, after Co issioner +ilario =avide, *r., sought clarification on the issue, is enlightening.

MR. =AE-=E. - would li0e to get so e clarifications on this. Mr. Presiding <fficer, did - get the 6entle an correctl/ as having said that this is not a selfAe"ecuting provisionM -t would re.uire a legislation b/ Congress to i ple entM MR. <PBE. Hes. <riginall/, it was going to be selfAe"ecuting, but accepted an a end ent fro Co issioner Regalado, so that the safeguards on national interest are odified b/ the clause @as a/ be provided b/ law@ MR. =AE-=E. But as worded, #oe0 1t "ot )e!" t3!t t310 ?1:: 1))e#1!te:5 t!;e e66ect !"# Co"2re00 )!5 /ro(1#e 6or re!0o"!b:e 0!6e27!r#0 on the sole ground national interestM MR. <PBE. +e0. I t31"; 0o, Mr. Pre01#1"2 O661cer, I 0!1# e!r:1er t3!t 1t 03o7:# 1))e#1!te:5 1"6:7e"ce t3e c:1)!te o6 t3e co"#7ct o6 /7b:1c !66!1r0 but, of course, Congress here a/ no longer pass a law revo0ing it, or if this is approved, revo0ing this principle, which is inconsistent with this polic/.'$( 4E phasis supplied5 -ndubitabl/, t3e e66ect1(1t5 o6 t3e /o:1c5 o6 /7b:1c #10c:o07re "ee# "ot !?!1t t3e /!001"2 o6 ! 0t!t7te. As Congress cannot revo0e this principle, it is erel/ directed to provide for @reasonable safeguards.@ !he co plete and effective e"ercise of the right to infor ation necessitates that its co ple entar/ provision on public disclosure derive the sa e selfAe"ecutor/ nature. #ince both provisions go handAinAhand, it is absurd to sa/ that the broader'2; right to infor ation on atters of public concern is alread/ enforceable while the correlative dut/ of the #tate 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 i ple enting legislation as an e"cuse in not effecting such polic/. An essential ele ent of these freedo s is to 0eep open a continuing dialogue or process of co unication between the govern ent and the people. -t is in the interest of the #tate that the channels for free political discussion be aintained to the end that the govern ent a/ perceive and be responsive to the peopleJs will.'2' Envisioned to be corollar/ to the twin rights to infor ation and disclosure is the design for feedbac0 echanis s. M#. R<#AR-< BRA-=. Hes. And lastl/, Mr. Presiding <fficer, ?1:: t3e /eo/:e be !b:e to /!rt1c1/!teG -1:: t3e 2o(er")e"t /ro(1#e 6ee#b!c; )ec3!"10)0 0o t3!t t3e /eo/:e c!" /!rt1c1/!te !"# c!" re!ct ?3ere t3e e410t1"2 )e#1! 6!c1:1t1e0 !re "ot !b:e to /ro(1#e 67:: 6ee#b!c; )ec3!"10)0 to t3e 2o(er")e"tG I 07//o0e t310 ?1:: be /!rt o6 t3e 2o(er")e"t 1)/:e)e"t1"2 o/er!t1o"!: )ec3!"10)0. MR. <PBE. Hes. - thin0 through their elected representatives and that is how these courses ta0e place. !here is a essage and a feedbac0, both wa/s. """"

M#. R<#AR-< BRA-=. Mr. Presiding <fficer, a/ - just a0e one last sentenceM I t31"; ?3e" ?e t!:; !bo7t t3e 6ee#b!c; "et?or;, ?e !re "ot t!:;1"2 !bo7t /7b:1c o661c1!:0 b7t !:0o "et?or; o6 /r1(!te b701"e00 oJrK co))7"1t5-b!0e# or2!"1H!t1o"0 t3!t ?1:: be re!ct1"2. As a atter of fact, we will put ore credence or credibilit/ on the private networ0 of volunteers and voluntar/ co unit/Abased organi1ations. #o - do not thin0 we are afraid that there will be another <MA in the a0ing.'2$ 4E phasis supplied5 !he i perative of a public consultation, as a species of the right to infor ation, is evident in the @ arching orders@ to respondents. !he echanics for the dut/ to disclose infor ation and to conduct public consultation regarding the peace agenda and process is anifestl/ provided b/ E.<. No. 2.'22 !he prea bulator/ clause of E.<. No. 2 declares that there is a need to further enhance the contribution of civil societ/ to the co prehensive peace process b/ institutionali1ing the peopleJs participation. <ne of the three underl/ing principles of the co prehensive peace process is that it @should be co unit/Abased, reflecting the senti ents, values and principles i portant to all 9ilipinos@ and @shall be defined not b/ the govern ent alone, nor b/ the different contending groups onl/, but b/ all 9ilipinos as one co unit/.@'2) -ncluded as a co ponent of the co prehensive peace process is consensusAbuilding and e power ent for peace, which includes @continuing consultations on both national and local levels to build consensus for a peace agenda and process, and the obili1ation and facilitation of peopleJs participation in the peace process.@'2% C:e!r:5, E.O. No. 3 co"te)/:!te0 "ot F70t t3e co"#7ct o6 ! /:eb10c1te to e66ect7!te Ico"t1"71"2I co"07:t!t1o"0, co"tr!r5 to re0/o"#e"t0M /o01t1o" t3!t /:eb10c1te 10 I)ore t3!" 07661c1e"t co"07:t!t1o".@'23 9urther, E.<. No. 2 enu erates the functions and responsibilities of the PAPP, one of which is to @CcDonduct regular dialogues with the National Peace 9oru 4NP95 and other peace partners to see0 relevant infor ation, co ents, reco endations as well as to render appropriate and ti el/ reports on the progress of the co prehensive peace process.@ '2& E.<. No. 2 andates the establish ent of the NP9 to be @the principal foru for the PAPP to consult with and see0 adviCcDe fro the peace advocates, peace partners and concerned sectors of societ/ on both national and local levels, on the i ple entation of the co prehensive peace process, as well as for govern entCADcivil societ/ dialogue and consensusAbuilding on peace agenda and initiatives.@'2: I" 61"e, E.O. No. 3 e0t!b:103e0 /et1t1o"er0M r123t to be co"07:te# o" t3e /e!ce !2e"#!, !0 ! coro::!r5 to t3e co"0t1t7t1o"!: r123t to 1"6or)!t1o" !"# #10c:o07re. P$PP E0/ero" co))1tte# 2r!(e !b70e o6 #10cret1o" !he P$PP co))1tte# 2r!(e !b70e o6 #10cret1o" when he 6!1:e# to carr/ out the pertinent consultation. !he furtive process b/ which the M<AAA= was

designed and crafted r7"0 co"tr!r5 to !"# 1" e4ce00 o6 t3e :e2!: !7t3or1t5, and a ounts to a whi sical, capricious, oppressive, arbitrar/ and despotic e"ercise thereof. !he Court a/ not, of course, re.uire the PAPP to conduct the consultation in a particular way or manner. -t a/, however, re.uire hi to co pl/ with the law and discharge the functions within the authority granted b/ the President.'2( Petitioners are not clai ing a seat at the negotiating table, contrar/ to respondentsJ retort in justif/ing the denial of petitionersJ right to be consulted. RespondentsJ stance anifests the anner b/ which the/ treat the salient provisions of E.<. No. 2 on peopleJs participation. #uch disregard of the e"press andate of the President is not uch different fro superficial conduct toward to0en provisos that border on classic lip service. '); -t illustrates a gross evasion of positive dut/ and a virtual refusal to perfor the dut/ enjoined. As for respondentsJ invocation of the doctrine of e"ecutive privilege, it is not tenable under the pre ises. !he argu ent defies sound reason when contrasted with E.<. No. 2Js e"plicit provisions on continuing consultation and dialogue on both national and local levels. !he e4ec7t1(e or#er e(e" reco2"1He0 t3e e4erc10e o6 t3e /7b:1cM0 r123t even before the 6RP a0es its official reco endations or before the govern ent proffers its definite propositions.')' -t bear e phasis that E.<. No. 2 see0s to elicit relevant advice, infor ation, co ents and reco endations fro the people through dialogue. A! ABB EEEN!#, respondents effectivel/ waived the defense of e"ecutive privilege in view of their un.ualified disclosure of the official copies of the final draft of the M<AAA=. B/ unconditionall/ co pl/ing with the CourtJs August ), $;;: Resolution, without a pra/er for the docu entJs disclosure in camera, or without a anifestation that it was co pl/ing therewith e= abundante ad cautelam. PetitionersJ assertion that the Bocal 6overn ent Code 4B6C5 of '((' declares it a #tate polic/ to @re.uire all national agencies and offices to conduct periodic consultations with appropriate local govern ent units, nonA govern ental and peopleJs organi1ations, and other concerned sectors of the co unit/ before an/ project or progra is i ple ented in their respective jurisdictions@')$ is wellAta0en. !he B6C chapter on intergovern ental relations puts flesh into this avowed polic/> #rior onsultations +equired. A No project or progra shall be i ple ented b/ govern ent authorities unless the consultations entioned in #ections $ 4c5 and $3 hereof are co plied with, and prior approval of the sanggunian concerned is obtained> Provided, !hat occupants in areas where such projects are to be i ple ented shall not be evicted unless appropriate relocation sites have been provided, in accordance with the provisions of the Constitution. ')2 4-talics and underscoring supplied5

-n *ina' (r. v. :on. #a9o,')) the Court held that the aboveAstated polic/ and aboveA.uoted provision of the B6F appl/ onl/ to national progra s or projects which are to be i ple ented in a particular local co unit/. A ong the progra s and projects covered are those that are critical to the environ ent and hu an ecolog/ including those that a/ call for the eviction of a particular group of people residing in the localit/ where these will be i ple ented.')% T3e MO$-$% 10 o"e /ec7:1!r /ro2r!) t3!t 7"eE71(oc!::5 !"# 7"1:!ter!::5 (e0t0 o?"er031/ o6 ! (!0t terr1tor5 to t3e ,!"20!)oro /eo/:e,')3 ?31c3 co7:# /er(!01(e:5 !"# #r!0t1c!::5 re07:t to t3e #1!0/or! or #10/:!ce)e"t o6 ! 2re!t "7)ber o6 1"3!b1t!"t0 6ro) t3e1r tot!: e"(1ro")e"t. Gith respect to the indigenous cultural co unitiesIindigenous peoples 4-CCsI-Ps5, whose interests are represented herein b/ petitioner Bope1 and are adversel/ affected b/ the M<AAA=, the -CCsI-Ps have, under the -PRA, the right to participate full/ at all levels of decisionA a0ing in atters which a/ affect their rights, lives and destinies.')& !he M<AAA=, an instru ent recogni1ing ancestral do ain, failed to justif/ its nonAco pliance with the clearAcut echanis s ordained in said Act,'): which entails, a ong other things, the observance of the free and prior infor ed consent of the -CCsI-Ps. Notabl/, the -PRA does "ot grant the E"ecutive =epart ent or an/ govern ent agenc/ the power to delineate and recogni1e an ancestral do ain clai by mere agreement or compromise. !he recognition of the ancestral do ain is the raison d@etre of the M<AAA=, without which all other stipulations or @consensus points@ necessaril/ ust fail. -n proceeding to a0e a sweeping declaration on ancestral do ain, without co pl/ing with the -PRA, which is cited as one of the !<R of the M<AAA=, re0/o"#e"t0 c:e!r:5 tr!"0ce"#e# t3e bo7"#!r1e0 o6 t3e1r !7t3or1t5. As it see s, even the heart of the M<AAA= is still subject to necessar/ changes to the legal fra ewor0. Ghile paragraph & on 6overnance suspends the effectivit/ of all provisions re.uiring changes to the legal fra ewor0, such clause is itself invalid, as will be discussed in the following section. -ndeed, ours is an open societ/, with all the acts of the govern ent subject to public scrutin/ and available alwa/s to public cogni1ance. !his has to be so if the countr/ is to re ain de ocratic, with sovereignt/ residing in the people and all govern ent authorit/ e anating fro the .')( ON THE SECON% SU,ST$NTI8E ISSUE Gith regard to the provisions of the M<AAA=, there can be no .uestion that the/ cannot all be acco odated under the present Constitution and laws. Respondents have ad itted as uch in the oral argu ents before this Court, and the M<AAA= itself recogni1es the need to a end the e"isting legal fra ewor0 to render effective at least so e of its provisions. Respondents, nonetheless, counter that the M<AAA= is free of an/ legal infir it/ because an/ provisions therein which are inconsistent with the present legal fra ewor0 will not be effective until the necessar/ changes to that fra ewor0

are ade. !he validit/ of this argu ent will be considered later. 9or now, the Court shall pass upon how T3e MO$-$% 10 1"co"010te"t ?1t3 t3e Co"0t1t7t1o" !"# :!?0 !0 /re0e"t:5 ?or#e#. -n general, the objections against the M<AAA= center on the e"tent of the powers conceded therein to the B*E. Petitioners assert that the powers granted to the B*E e"ceed those granted to an/ local govern ent under present laws, and even go be/ond those of the present ARMM. Before assessing so e of the specific powers that would have been vested in the B*E, however, it would be useful to turn first to a general idea that serves as a unif/ing lin0 to the different provisions of the M<AAA=, na el/, the international law concept of association. #ignificantl/, the M<AAA= e"plicitl/ alludes to this concept, indicating that the Parties actuall/ fra ed its provisions with it in ind. Association is referred to in paragraph 2 on !ERR-!<RH, paragraph '' on RE#<FRCE#, and paragraph ) on 6<EERNANCE. -t is in the last entioned provision, however, that the M<AAA= ost clearl/ uses it to describe the envisioned relationship between the B*E and the Central 6overn ent. ). T3e re:!t1o"031/ bet?ee" t3e Ce"tr!: Go(er")e"t !"# t3e ,!"20!)oro F7r1#1c!: e"t1t5 03!:: be !00oc1!t1(e c3!r!cter1He# b5 03!re# !7t3or1t5 !"# re0/o"01b1:1t5 with a structure of governance based on e"ecutive, legislative, judicial and ad inistrative institutions with defined powers and functions in the co prehensive co pact. A period of transition shall be established in a co prehensive peace co pact specif/ing the relationship between the Central 6overn ent and the B*E. 4E phasis and underscoring supplied5 !he nature of the @associative@ relationship a/ have been intended to be defined ore precisel/ in the still to be forged Co prehensive Co pact. Nonetheless, given that there is a concept of @association@ in international law, and the M<AAA= A b/ its inclusion of international law instru ents in its !<RA placed itself in an international legal conte"t, that concept of association a/ be brought to bear in understanding the use of the ter @associative@ in the M<AAA=. ,eitner and Reis an state that CaDn association is for ed when t?o 0t!te0 of une.ual power voluntaril/ establish durable lin0s. -n the basic odel, o"e 0t!te, t3e !00oc1!te, #e:e2!te0 cert!1" re0/o"01b1:1t1e0 to t3e ot3er, t3e /r1"c1/!:, ?31:e )!1"t!1"1"2 1t0 1"ter"!t1o"!: 0t!t70 !0 ! 0t!te. ree !00oc1!t1o"0 re/re0e"t ! )1##:e 2ro7"# bet?ee" 1"te2r!t1o" !"# 1"#e/e"#e"ce. " " "'%; 4E phasis and underscoring supplied5 9or purposes of illustration, the Republic of the Marshall -slands and the 9ederated #tates of Micronesia 49#M5, for erl/ part of the F.#.Aad inistered

!rust !erritor/ of the Pacific -slands,'%' are associated states of the F.#. pursuant to a Co pact of 9ree Association. !he currenc/ in these countries is the F.#. dollar, indicating their ver/ close ties with the F.#., /et the/ issue their own travel docu ents, which is a ar0 of their statehood. !heir international legal status as states was confir ed b/ the FN #ecurit/ Council and b/ their ad ission to FN e bership. According to their co pacts of free association, the Marshall -slands and the 9#M generall/ have the capacit/ to conduct foreign affairs in their own na e and right, such capacit/ e"tending to atters such as the law of the sea, arine resources, trade, ban0ing, postal, civil aviation, and cultural relations. !he F.#. govern ent, when conducting its foreign affairs, is obligated to consult with the govern ents of the Marshall -slands or the 9#M on atters which it 4F.#. govern ent5 regards as relating to or affecting either govern ent. -n the event of attac0s or threats against the Marshall -slands or the 9#M, the F.#. govern ent has the authorit/ and obligation to defend the as if the/ were part of F.#. territor/. !he F.#. govern ent, oreover, has the option of establishing and using ilitar/ areas and facilities within these associated states and has the right to bar the ilitar/ personnel of an/ third countr/ fro having access to these territories for ilitar/ purposes. -t bears noting that in F.#. constitutional and international practice, free association is understood as an international association between sovereigns. !he Co pact of 9ree Association is a treat/ which is subordinate to the associated nationJs national constitution, and each part/ a/ ter inate the association consistent with the right of independence. -t has been said that, with the ad ission of the F.#.Aassociated states to the FN in '((;, the FN recogni1ed that the A erican odel of free association is actuall/ based on an underl/ing status of independence.'%$ -n international practice, the @associated state@ arrange ent has usuall/ been used as a tr!"01t1o"!: #e(1ce of for er colonies on their wa/ to full independence. E"a ples of states that have passed through the status of associated states as a transitional phase are Antigua, #t. ,ittsANevisA Anguilla, =o inica, #t. Bucia, #t. Eincent and 6renada. All have since beco e independent states.'%2 Bac0 to the M<AAA=, it contains an/ provisions which are consistent with the international legal concept of association, specificall/ the following> the B*EJs capacit/ to enter into econo ic and trade relations with foreign countries, the co it ent of the Central 6overn ent to ensure the B*EJs participation in eetings and events in the A#EAN and the speciali1ed FN agencies, and the continuing responsibilit/ of the Central 6overn ent over e"ternal defense. Moreover, the B*EJs right to participate in Philippine official issions bearing on negotiation of border agree ents, environ ental protection, and sharing of revenues pertaining to the bodies of water adjacent to or between the islands for ing part of the ancestral do ain, rese bles the right of the govern ents of 9#M and the Marshall -slands to

be consulted b/ the F.#. govern ent on an/ foreign affairs atter affecting the . !hese provisions of the M<A indicate, a ong other things, that the Parties !1)e# to (e0t 1" t3e ,.E t3e 0t!t70 o6 !" associate state or, !t !"5 r!te, ! 0t!t70 c:o0e:5 !//ro41)!t1"2 1t. T3e co"ce/t o6 association 10 "ot reco2"1He# 7"#er t3e /re0e"t Co"0t1t7t1o" No province, cit/, or unicipalit/, not even the ARMM, is recogni1ed under our laws as having an @associative@ relationship with the national govern ent. -ndeed, the concept i plies powers that go be/ond an/thing ever granted b/ the Constitution to an/ local or regional govern ent. -t also i plies the recognition of the associated entity as a state. !he Constitution, however, does not conte plate an/ state in this jurisdiction other than the Philippine #tate, uch less does it provide for a transitor/ status that ai s to prepare an/ part of Philippine territor/ for independence. Even the ere concept ani ating an/ of the M<AAA=Js provisions, therefore, alread/ re.uires for its validit/ the a end ent of constitutional provisions, specificall/ the following provisions of Article L> #EC!-<N '. !he territorial and political subdivisions of the Republic of the Philippines are the /ro(1"ce0, c1t1e0, )7"1c1/!:1t1e0, !"# b!r!"2!50. !here shall be !7to"o)o70 re21o"0 in Musli Mindanao and the Cordilleras as hereinafter provided. #EC!-<N '%. !here shall be created autono ous regions in Musli Mindanao and in the Cordilleras consisting of provinces, cities, unicipalities, and geographical areas sharing co on and distinctive historical and cultural heritage, econo ic and social structures, and other relevant characteristics ?1t31" t3e 6r!)e?or; o6 t310 Co"0t1t7t1o" !"# t3e "!t1o"!: 0o(ere12"t5 !0 ?e:: !0 terr1tor1!: 1"te2r1t5 o6 t3e Re/7b:1c o6 t3e P31:1//1"e0. T3e ,.E 10 ! 6!r )ore /o?er67: e"t1t5 t3!" t3e !7to"o)o70 re21o" reco2"1He# 1" t3e Co"0t1t7t1o" -t is not erel/ an e"panded version of the ARMM, the status of its relationship with the national govern ent being funda entall/ different fro that of the ARMM. -ndeed, ,.E 10 ! 0t!te 1" !:: b7t "!)e !0 1t )eet0 t3e cr1ter1! o6 ! 0t!te :!1# #o?" 1" t3e Mo"te(1#eo Co"(e"t1o" ,'%) na el/, a per anent population, a defined territor/, a govern ent, and a capacit/ to enter into relations with other states. Even assu ing arguendo that the M<AAA= would not necessaril/ sever an/ portion of Philippine territor/, t3e 0/1r1t !"1)!t1"2 1t A which has betra/ed itself b/ its use of the concept of association A r7"0 co7"ter to t3e "!t1o"!: 0o(ere12"t5 !"# terr1tor1!: 1"te2r1t5 o6 t3e Re/7b:1c . T3e #e61"1"2 co"ce/t 7"#er:51"2 t3e re:!t1o"031/ bet?ee" t3e "!t1o"!: 2o(er")e"t !"# t3e ,.E be1"2 1t0e:6 co"tr!r5 to t3e /re0e"t Co"0t1t7t1o", 1t 10 "ot 07r/r101"2 t3!t )!"5 o6 t3e 0/ec161c /ro(101o"0 o6

t3e MO$-$% o" t3e 6or)!t1o" !"# /o?er0 o6 t3e ,.E !re 1" co"6:1ct ?1t3 t3e Co"0t1t7t1o" !"# t3e :!?0. Article L, #ection ': of the Constitution provides that @CtDhe creation of the autono ous region shall be effective when approved b/ a ajorit/ of the votes cast b/ the constituent units in a plebiscite called for the purpose, provided that o":5 /ro(1"ce0, c1t1e0, !"# 2eo2r!/31c !re!0 (ot1"2 6!(or!b:5 1" 07c3 /:eb10c1te 03!:: be 1"c:7#e# 1" t3e !7to"o)o70 re21o".@ 4E phasis supplied5 As reflected above, the B*E is ore of a state than an autono ous region. But even assu ing that it is covered b/ the ter @autono ous region@ in the constitutional provision just .uoted, the M<AAA= would still be in conflict with it. Fnder paragraph $4c5 on !ERR-!<RH in relation to $4d5 and $4e5, the present geographic area of the ARMM and, in addition, the unicipalities of Banao del Norte which voted for inclusion in the ARMM during the $;;' plebiscite - !aloi' 5unai' /unungan' #antar' Tagoloan and Tang"al A are auto aticall/ part of the B*E without need of another plebiscite, in contrast to the areas under Categories A and B entioned earlier in the overview. !hat the present co ponents of the ARMM and the aboveA entioned unicipalities voted for inclusion therein in $;;', however, does "ot render another plebiscite unnecessar/ under the Constitution, precisel/ because what these areas voted for then was their inclusion in the ARMM, "ot the B*E. T3e MO$-$%, )oreo(er, ?o7:# "ot co)/:5 ?1t3 $rt1c:e C, Sect1o" 2* o6 t3e Co"0t1t7t1o" since that provision defines the powers of autono ous regions as follows> #EC!-<N $;. Githin its territorial jurisdiction and subject to the provisions of this Constitution and national laws, the organic act of autono ous regions shall provide for legislative powers over> 4'5 Ad inistrative organi1ation? 4$5 Creation of sources of revenues? 425 Ancestral do ain and natural resources? 4)5 Personal, fa il/, and propert/ relations? 4%5 Regional urban and rural planning develop ent? 435 Econo ic, social, and touris develop ent? 4&5 Educational policies? 4:5 Preservation and develop ent of the cultural heritage? and 4(5 #uch other atters as a/ be authori1ed b/ law for the pro otion of the general welfare of the people of the region. 4Fnderscoring supplied5 Again on the pre ise that the B*E a/ be regarded as an autono ous region, the M<AAA= would re.uire an a end ent that would e"pand the aboveA.uoted provision. !he ere passage of new legislation pursuant to subAparagraph No. ( of said constitutional provision would not suffice, since an/ new law that ight vest in the B*E the powers found in the M<AAA=

ust, itself, co pl/ with other provisions of the Constitution. -t would not do, for instance, to erel/ pass legislation vesting the B*E with treat/A a0ing power in order to acco odate paragraph ) of the strand on RE#<FRCE# which states> @!he B*E is free to enter into an/ econo ic cooperation and trade relations with foreign countries> provided, however, that such relationships and understandings do not include aggression against the 6overn ent of the Republic of the Philippines " " ".@ Fnder our constitutional s/ste , it is onl/ the President who has that power. #imentel v. 6=ecutive Secretary'%% instructs> -n our s/ste of govern ent, the President, being the head of state, is regarded as t3e 0o:e or2!" !"# !7t3or1t5 1" e4ter"!: re:!t1o"0 !"# 10 t3e co7"tr5M0 0o:e re/re0e"t!t1(e ?1t3 6ore12" "!t1o"0. As the chief architect of foreign polic/, the President acts as the countr/Js outhpiece with respect to international affairs. +ence, t3e Pre01#e"t 10 (e0te# ?1t3 t3e !7t3or1t5 to deal with foreign states and govern ents, e"tend or withhold recognition, )!1"t!1" #1/:o)!t1c re:!t1o"0, e"ter 1"to tre!t1e0, !"# ot3er?10e tr!"0!ct t3e b701"e00 o6 6ore12" re:!t1o"0. I" t3e re!:) o6 tre!t5-)!;1"2, t3e Pre01#e"t 3!0 t3e 0o:e !7t3or1t5 to "e2ot1!te ?1t3 ot3er 0t!te0. 4E phasis and underscoring supplied5 $rt1c:e II, Sect1o" 22 o6 t3e Co"0t1t7t1o" )70t !:0o be !)e"#e# 16 t3e 0c3e)e e"(101o"e# 1" t3e MO$-$% 10 to be e66ecte#. !hat constitutional provision states> @!he #tate recogni1es and pro otes the rights of indigenous cultural co unities within the fra ewor0 of national unit/ and develop ent.@ 4Fnderscoring supplied5 An associative arrange ent does not uphold national unit/. Ghile there a/ be a se blance of unit/ because of the associative ties between the B*E and the national govern ent, the act of placing a portion of Philippine territor/ in a status which, in international practice, has generall/ been a preparation for independence, is certainl/ not conducive to "!t1o"!: unit/. Besides being irreconcilable with the Constitution, the M<AAA= is also 1"co"010te"t ?1t3 /re(!1:1"2 0t!t7tor5 :!?, !)o"2 ?31c3 !re R.$. No. 9*'4'%3 or the <rganic Act of the ARMM, and the IPR$.'%& $rt1c:e C, Sect1o" 3 o6 t3e Or2!"1c $ct o6 t3e $RMM 10 ! b!r to t3e !#o/t1o" o6 t3e #e61"1t1o" o6 I,!"20!)oro /eo/:eI used in the M<AAA=. Paragraph ' on Concepts and Principles states> '. -t is the birthright of !:: Moro0 !"# !:: I"#12e"o70 /eo/:e0 o6 M1"#!"!o to 1#e"t165 t3e)0e:(e0 !"# be !cce/te# !0 I,!"20!)oro0I. !he Bangsa oro people refers to those who are "!t1(e0 or or121"!: 1"3!b1t!"t0 o6 M1"#!"!o !"# 1t0 !#F!ce"t 10:!"#0 including Palawan and the #ulu archipelago at the ti e of con.uest or coloni1ation of its descendants whether i"ed or of full blood. #pouses and their descendants are classified as Bangsa oro. !he freedo of choice of the -ndigenous people shall be respected. 4E phasis and underscoring supplied5

!his use of the ter Bangsa oro sharpl/ contrasts with that found in the Article L, #ection 2 of the <rganic Act, which, rather than lu ping together the identities of the Bangsa oro and other indigenous peoples living in Mindanao, clearl/ #10t1"27103e0 bet?ee" ,!"20!)oro /eo/:e !"# Tr1b!: /eo/:e0, as follows> @As used in this <rganic Act, the phrase @indigenous cultural co unit/@ refers to 1:1/1"o c1t1He"0 re01#1"2 1" t3e !7to"o)o70 re21o" who are> 4a5 Tr1b!: /eo/:e0. !hese are citi1ens whose social, cultural and econo ic conditions distinguish the fro other sectors of the national co unit/? and 4b5 ,!"20! Moro /eo/:e. !hese are citi1ens who are be:1e(er0 1" I0:!) and ?3o 3!(e ret!1"e# 0o)e or !:: o6 t3e1r o?" 0oc1!:, eco"o)1c, c7:t7r!:, !"# /o:1t1c!: 1"0t1t7t1o"0.@ Respecting the -PRA, it la/s down the prevailing procedure for the delineation and recognition of ancestral do ains. !he M<AAA=Js anner of delineating the ancestral do ain of the Bangsa oro people is a clear departure fro that procedure. B/ paragraph ' of !erritor/, the Parties si pl/ agree that, subject to the deli itations in the agreed #chedules, @CtDhe Bangsa oro ho eland and historic territor/ refer to the land ass as well as the ariti e, terrestrial, fluvial and alluvial do ains, and the aerial do ain, the at ospheric space above it, e bracing the MindanaoA#uluAPalawan geographic region.@ Chapter E--- of the -PRA, on the other hand, la/s down a detailed procedure, as illustrated in the following provisions thereof> #EC!-<N %$. =elineation Process. A !he identification and delineation of ancestral do ains shall be done in accordance with the following procedures> """" b5 Petition for =elineation. A !he process of delineating a specific peri eter a/ be initiated b/ the NC-P with the consent of the -CCI-P concerned, or through a Petition for =elineation filed with the NC-P, b/ a ajorit/ of the e bers of the -CCsI-Ps? c5 =elineation Proper. A !he official delineation of ancestral do ain boundaries including census of all co unit/ e bers therein, shall be i ediatel/ underta0en b/ the Ancestral =o ains <ffice upon filing of the application b/ the -CCsI-Ps concerned. =elineation will be done in coordination with the co unit/ concerned and shall at all ti es include genuine involve ent and participation b/ the e bers of the co unities concerned? d5 Proof Re.uired. A Proof of Ancestral =o ain Clai s shall include the testi on/ of elders or co unit/ under oath, and other docu ents directl/ or indirectl/ attesting to the possession or occupation of the area since ti e i e orial b/ such -CCsI-Ps in

the concept of owners which shall be an/ one 4'5 of the following authentic docu ents> '5 Gritten accounts of the -CCsI-Ps custo s and traditions? $5 Gritten accounts of the -CCsI-Ps political structure and institution? 25 Pictures showing long ter occupation such as those of old i prove ents, burial grounds, sacred places and old villages? )5 +istorical accounts, including pacts and agree ents concerning boundaries entered into b/ the -CCsI-Ps concerned with other -CCsI-Ps? %5 #urve/ plans and s0etch aps? 35 Anthropological data? &5 6enealogical surve/s? :5 Pictures and descriptive histories of traditional co unal forests and hunting grounds? (5 Pictures and descriptive histories of traditional land ar0s such as ountains, rivers, cree0s, ridges, hills, terraces and the li0e? and ';5 GriteAups of na es and places derived fro the native dialect of the co unit/. e5 Preparation of Maps. A <n the basis of such investigation and the findings of fact based thereon, the Ancestral =o ains <ffice of the NC-P shall prepare a peri eter ap, co plete with technical descriptions, and a description of the natural features and land ar0s e braced therein? f5 Report of -nvestigation and <ther =ocu ents. A A co plete cop/ of the preli inar/ census and a report of investigation, shall be prepared b/ the Ancestral =o ains <ffice of the NC-P? g5 Notice and Publication. A A cop/ of each docu ent, including a translation in the native language of the -CCsI-Ps concerned shall be posted in a pro inent place therein for at least fifteen 4'%5 da/s. A cop/ of the docu ent shall also be posted at the local, provincial and regional offices of the NC-P, and shall be published in a newspaper of general circulation once a wee0 for two 4$5 consecutive wee0s to allow other clai ants to file opposition thereto within fifteen 4'%5 da/s fro date of such publication> Provided, !hat in areas where no such newspaper e"ists, broadcasting in a radio station will be a valid substitute> Provided, further, !hat ere posting shall be dee ed sufficient if both newspaper and radio station are not available? h5 Endorse ent to NC-P. A Githin fifteen 4'%5 da/s fro publication, and of the inspection process, the Ancestral =o ains <ffice shall prepare a report to the NC-P endorsing a favorable action upon a clai that is dee ed to have sufficient proof. +owever, if the proof is dee ed insufficient, the Ancestral =o ains <ffice shall re.uire the

sub ission of additional evidence> Provided, !hat the Ancestral =o ains <ffice shall reject an/ clai that is dee ed patentl/ false or fraudulent after inspection and verification> Provided, further, !hat in case of rejection, the Ancestral =o ains <ffice shall give the applicant due notice, cop/ furnished all concerned, containing the grounds for denial. !he denial shall be appealable to the NC-P> Provided, further ore, !hat in cases where there are conflicting clai s a ong -CCsI-Ps on the boundaries of ancestral do ain clai s, the Ancestral =o ains <ffice shall cause the contending parties to eet and assist the in co ing up with a preli inar/ resolution of the conflict, without prejudice to its full adjudication according to the section below. """" !o re ove all doubts about the irreconcilabilit/ of the M<AAA= with the present legal s/ste , a discussion of not onl/ the Constitution and do estic statutes, but also of international law is in order, for $rt1c:e II, Sect1o" 2 o6 t3e Co"0t1t7t1o" 0t!te0 t3!t t3e P31:1//1"e0 I!#o/t0 t3e 2e"er!::5 !cce/te# /r1"c1/:e0 o6 1"ter"!t1o"!: :!? !0 /!rt o6 t3e :!? o6 t3e :!"#.I Appl/ing this provision of the Constitution, the Court, in 5ejoff v. ,irector of #risons,'%: held that the Fniversal =eclaration of +u an Rights is part of the law of the land on account of which it ordered the release on bail of a detained alien of Russian descent whose deportation order had not been e"ecuted even after two /ears. #i ilarl/, the Court in )gustin v. 6du'%( applied the aforesaid constitutional provision to the '(3: Eienna Convention on Road #igns and #ignals. -nternational law has long recogni1ed the right to selfAdeter ination of @peoples,@ understood not erel/ as the entire population of a #tate but also a portion thereof. -n considering the .uestion of whether the people of Kuebec had a right to unilaterall/ secede fro Canada, the Canadian #upre e Court in RE9ERENCE RE #ECE##-<N <9 KFEBEC '3; had occasion to ac0nowledge that @the right of a people to selfAdeter ination is now so widel/ recogni1ed in international conventions that the principle has ac.uired a status be/ond QconventionJ and is considered a general principle of international law.@ A ong the conventions referred to are the -nternational Covenant on Civil and Political Rights'3' and the -nternational Covenant on Econo ic, #ocial and Cultural Rights'3$ which state, in Article ' of both covenants, that all peoples, b/ virtue of the right of selfAdeter ination, @freel/ deter ine their political status and freel/ pursue their econo ic, social, and cultural develop ent.@ !he peopleJs right to selfAdeter ination should not, however, be understood as e"tending to a unilateral right of secession. A distinction should be ade between the right of internal and e"ternal selfAdeter ination. RE9ERENCE RE #ECE##-<N <9 KFEBEC is again instructive>

@4ii5 #cope of the Right to #elfAdeter ination '$3. !he recogni1ed sources of international law establish that the r123t to 0e:6-#eter)1"!t1o" o6 ! /eo/:e 10 "or)!::5 67:61::e# t3ro723 internal 0e:6-#eter)1"!t1o" - ! /eo/:eM0 /7r071t o6 1t0 /o:1t1c!:, eco"o)1c, 0oc1!: !"# c7:t7r!: #e(e:o/)e"t ?1t31" t3e 6r!)e?or; o6 !" e410t1"2 0t!te. $ r123t to e*ternal 0e:6#eter)1"!t1o" A?31c3 1" t310 c!0e /ote"t1!::5 t!;e0 t3e 6or) o6 t3e !00ert1o" o6 ! r123t to 7"1:!ter!: 0ece001o"B !r10e0 1" o":5 t3e )o0t e4tre)e o6 c!0e0 !"#, e(e" t3e", 7"#er c!re67::5 #e61"e# c1rc7)0t!"ce0. " " " !*ternal 0e:6-#eter)1"!t1o" c!" be #e61"e# !0 1" t3e 6o::o?1"2 0t!te)e"t 6ro) t3e Declaration on 7rien ly 2elations, supra, !0 T3e e0t!b:103)e"t o6 ! 0o(ere12" !"# 1"#e/e"#e"t St!te, t3e 6ree !00oc1!t1o" or 1"te2r!t1o" ?1t3 !" 1"#e/e"#e"t St!te or t3e e)er2e"ce 1"to !"5 ot3er /o:1t1c!: 0t!t70 6ree:5 #eter)1"e# b5 ! people constitute odes of i ple enting the right of selfA deter ination b/ that people. 4E phasis added5 '$&. T3e 1"ter"!t1o"!: :!? /r1"c1/:e o6 0e:6-#eter)1"!t1o" 3!0 e(o:(e# ?1t31" ! 6r!)e?or; o6 re0/ect 6or t3e terr1tor1!: 1"te2r1t5 o6 e410t1"2 0t!te0. !he various international docu ents that support the e"istence of a peopleJs right to selfAdeter ination also contain parallel state ents supportive of the conclusion that the e"ercise of such a right ust be sufficientl/ li ited to prevent threats to an e"isting stateJs territorial integrit/ or the stabilit/ of relations between sovereign states. " " " " 4E phasis, italics and underscoring supplied5 !he Canadian Court went on to discuss the e"ceptional cases in which the right to e"ternal selfAdeter ination can arise, na el/, where a people is under colonial rule, is subject to foreign do ination or e"ploitation outside a colonial conte"t, and A less definitel/ but asserted b/ a nu ber of co entators A is bloc0ed fro the eaningful e"ercise of its right to internal selfAdeter ination. !he Court ulti atel/ held that the population of Kuebec had no right to secession, as the sa e is not under colonial rule or foreign do ination, nor is it being deprived of the freedo to a0e political choices and pursue econo ic, social and cultural develop ent, citing that Kuebec is e.uitabl/ represented in legislative, e"ecutive and judicial institutions within Canada, even occup/ing pro inent positions therein. !he e"ceptional nature of the right of secession is further e"e plified in the REP<R! <9 !+E -N!ERNA!-<NAB C<MM-!!EE <9 *FR-#!# <N !+E BE6AB A#PEC!# <9 !+E AABAN= -#BAN=# KFE#!-<N.'32 !here, #weden presented to the Council of the Beague of Nations the .uestion of whether the inhabitants of the Aaland -slands should be authori1ed to deter ine b/ plebiscite if the archipelago should re ain under 9innish sovereignt/ or be incorporated in the 0ingdo of #weden. !he Council, before resolving the .uestion, appointed an -nternational Co ittee co posed of three jurists to sub it an opinion on the preli inar/ issue of

whether the dispute should, based on international law, be entirel/ left to the do estic jurisdiction of 9inland. !he Co ittee stated the rule as follows> " " " C-Dn the absence of e"press provisions in international treaties, t3e r123t o6 #10/o01"2 o6 "!t1o"!: terr1tor5 10 e00e"t1!::5 !" !ttr1b7te o6 t3e 0o(ere12"t5 o6 e(er5 St!te. Po01t1(e I"ter"!t1o"!: L!? #oe0 "ot reco2"1He t3e r123t o6 "!t1o"!: 2ro7/0, !0 07c3, to 0e/!r!te t3e)0e:(e0 6ro) t3e St!te o6 ?31c3 t3e5 6or) /!rt b5 t3e 01)/:e e4/re001o" o6 ! ?103, an/ ore than it recogni1es the right of other #tates to clai such a separation. Ge"er!::5 0/e!;1"2, t3e 2r!"t or re670!: o6 t3e r123t to ! /ort1o" o6 1t0 /o/7:!t1o" o6 #eter)1"1"2 1t0 o?" /o:1t1c!: 6!te b5 /:eb10c1te or b5 0o)e ot3er )et3o#, 10, e4c:701(e:5, !" !ttr1b7te o6 t3e 0o(ere12"t5 o6 e(er5 St!te ?31c3 10 #e61"1t1(e:5 co"0t1t7te#. A dispute between two #tates concerning such a .uestion, under nor al conditions therefore, bears upon a .uestion which -nternational Baw leaves entirel/ to the do estic jurisdiction of one of the #tates concerned. An/ other solution would a ount to an infringe ent of sovereign rights of a #tate and would involve the ris0 of creating difficulties and a lac0 of stabilit/ which would not onl/ be contrar/ to the ver/ idea e bodied in ter @#tate,@ but would also endanger the interests of the international co unit/. -f this right is not possessed b/ a large or s all section of a nation, neither can it be held b/ the #tate to which the national group wishes to be attached, nor b/ an/ other #tate. 4E phasis and underscoring supplied5 !he Co ittee held that the dispute concerning the Aaland -slands did not refer to a .uestion which is left b/ international law to the do estic jurisdiction of 9inland, thereb/ appl/ing the e"ception rather than the rule elucidated above. -ts ground for departing fro the general rule, however, was a ver/ narrow one, na el/, the Aaland -slands agitation originated at a ti e when 9inland was undergoing drastic political transfor ation. !he internal situation of 9inland was, according to the Co ittee, so abnor al that, for a considerable ti e, the conditions re.uired for the for ation of a sovereign #tate did not e"ist. -n the idst of revolution, anarch/, and civil war, the legiti ac/ of the 9innish national govern ent was disputed b/ a large section of the people, and it had, in fact, been chased fro the capital and forcibl/ prevented fro carr/ing out its duties. !he ar ed ca ps and the police were divided into two opposing forces. -n light of these circu stances, 9inland was not, during the relevant ti e period, a @definitivel/ constituted@ sovereign state. !he Co ittee, therefore, found that 9inland did not possess the right to withhold fro a portion of its population the option to separate itself A a right which sovereign nations generall/ have with respect to their own populations. !urning now to the ore specific categor/ of indigenous peoples, this ter 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 4spiritual and otherwise5 that have been forcibl/ incorporated into a larger governing societ/. !hese groups are regarded as @indigenous@ since the/ are the living descendants of preAinvasion inhabitants of lands now do inated b/ others. <therwise stated, indigenous peoples, nations, or co unities are culturall/ distinctive groups that find the selves engulfed b/ settler societies born of the forces of e pire and con.uest. '3) E"a ples of groups who have been regarded as indigenous peoples are the Maori of New Pealand and the aboriginal peoples of Canada. As with the broader categor/ of @peoples,@ indigenous peoples situated within states do not have a general right to independence or secession fro those states under international law, '3% but the/ do have rights a ounting to what was discussed above as the right to 1"ter"!: selfAdeter ination. -n a historic develop ent last #epte ber '2, $;;&, the FN 6eneral Asse bl/ adopted the Fnited Nations =eclaration on the Rights of -ndigenous Peoples 4FN =R-P5 through Ge"er!: $00e)b:5 Re0o:7t1o" 61R29'. T3e (ote ?!0 ')2 to ), the Philippines being included a ong those in favor, and the four voting against being Australia, Canada, New Pealand, and the F.#. !he =eclaration clearl/ recogni1ed the r123t o6 1"#12e"o70 /eo/:e0 to 0e:6-#eter)1"!t1o", e"co)/!001"2 t3e r123t to !7to"o)5 or 0e:6-2o(er")e"t, to ?1t< $rt1c:e 3 -ndigenous peoples have the right to 0e:6-#eter)1"!t1o". B/ virtue of that right the/ freel/ deter ine their political status and freel/ pursue their econo ic, social and cultural develop ent. $rt1c:e 4 -ndigenous peoples, in e"ercising their right to selfAdeter ination, have t3e r123t to !7to"o)5 or 0e:6-2o(er")e"t 1" )!tter0 re:!t1"2 to t3e1r 1"ter"!: !"# :oc!: !66!1r0, as well as wa/s and eans for financing their autono ous functions. $rt1c:e ' -ndigenous peoples have the right to aintain and strengthen their distinct political, legal, econo ic, social and cultural institutions, while retaining their right to participate full/, if the/ so choose, in the political, econo ic, social and cultural life of the #tate. #elfAgovern ent, as used in international legal discourse pertaining to indigenous peoples, has been understood as e.uivalent to @internal selfA deter ination.@'33 !he e"tent of selfAdeter ination provided for in the FN =R-P is ore particularl/ defined in its subse.uent articles, so e of which are .uoted hereunder> $rt1c:e & '. -ndigenous peoples and individuals have the right not to be subjected to forced assi ilation or destruction of their culture. $. St!te0 03!:: /ro(1#e e66ect1(e )ec3!"10)0 6or /re(e"t1o" o6, !"# re#re00 6or<

4a5 $"5 !ct1o" ?31c3 3!0 t3e !1) or e66ect o6 #e/r1(1"2 t3e) o6 t3e1r 1"te2r1t5 !0 #10t1"ct /eo/:e0, or o6 t3e1r c7:t7r!: (!:7e0 or et3"1c 1#e"t1t1e09 4b5 $"5 !ct1o" ?31c3 3!0 t3e !1) or e66ect o6 #10/o00e001"2 t3e) o6 t3e1r :!"#0, terr1tor1e0 or re0o7rce09 4c5 $"5 6or) o6 6orce# /o/7:!t1o" tr!"06er ?31c3 3!0 t3e !1) or e66ect o6 (1o:!t1"2 or 7"#er)1"1"2 !"5 o6 t3e1r r123t09 4d5 An/ for of forced assi ilation or integration? 4e5 $"5 6or) o6 /ro/!2!"#! #e012"e# to /ro)ote or 1"c1te r!c1!: or et3"1c #10cr1)1"!t1o" #1recte# !2!1"0t t3e). $rt1c:e 21 '. -ndigenous peoples have the right, without discri ination, to the i prove ent of their econo ic and social conditions, including, inter alia, in the areas of education, e plo/ ent, vocational training and retraining, housing, sanitation, health and social securit/. $. #tates shall ta0e effective easures and, where appropriate, special easures to ensure continuing i prove ent of their econo ic and social conditions. Particular attention shall be paid to the rights and special needs of indigenous elders, wo en, /outh, children and persons with disabilities. $rt1c:e 26 '. I"#12e"o70 /eo/:e0 3!(e t3e r123t to t3e :!"#0, terr1tor1e0 !"# re0o7rce0 ?31c3 t3e5 3!(e tr!#1t1o"!::5 o?"e#, occ7/1e# or ot3er?10e 70e# or !cE71re#. $. -ndigenous peoples have the right to own, use, develop and control the lands, territories and resources that the/ possess b/ reason of traditional ownership or other traditional occupation or use, as well as those which the/ have otherwise ac.uired. 2. #tates shall give legal recognition and protection to these lands, territories and resources. #uch recognition shall be conducted with due respect to the custo s, traditions and land tenure s/ste s of the indigenous peoples concerned. $rt1c:e 3* '. Militar/ activities shall not ta0e place in the lands or territories of indigenous peoples, unless justified b/ a relevant public interest or otherwise freel/ agreed with or re.uested b/ the indigenous peoples concerned. $. #tates shall underta0e 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 ilitar/ activities. $rt1c:e 32 '. -ndigenous peoples have the right to deter ine and develop priorities and strategies for the develop ent or use of their lands or territories and other resources.

$. #tates shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and infor ed consent prior to the approval of an/ project affecting their lands or territories and other resources, particularl/ in connection with the develop ent, utili1ation or e"ploitation of ineral, water or other resources. 2. #tates shall provide effective echanis s for just and fair redress for an/ such activities, and appropriate easures shall be ta0en to itigate adverse environ ental, econo ic, social, cultural or spiritual i pact. $rt1c:e 37 '. -ndigenous peoples have the right to the recognition, observance and enforce ent of treaties, agree ents and other constructive arrange ents concluded with #tates or their successors and to have #tates honour and respect such treaties, agree ents and other constructive arrange ents. $. Nothing in this =eclaration a/ be interpreted as di inishing or eli inating the rights of indigenous peoples contained in treaties, agree ents and other constructive arrange ents. $rt1c:e 3& #tates in consultation and cooperation with indigenous peoples, shall ta0e the appropriate easures, including legislative easures, to achieve the ends of this =eclaration. Assu ing that the FN =R-P, li0e the Fniversal =eclaration on +u an Rights, ust now be regarded as e bod/ing custo ar/ international law A a .uestion which the Court need not definitivel/ resolve here A the obligations enu erated therein do not strictl/ re.uire the Republic to grant the Bangsa oro people, through the instru entalit/ of the B*E, the particular rights and powers provided for in the M<AAA=. Even the ore specific provisions of the FN =R-P are general in scope, allowing for fle"ibilit/ in its application b/ the different #tates. !here is, for instance, no re.uire ent in the FN =R-P that #tates now guarantee indigenous peoples their own police and internal securit/ force. -ndeed, Article : presupposes that it is the #tate which will provide protection for indigenous peoples against acts li0e the forced dispossession of their lands A a function that is nor all/ perfor ed b/ police officers. -f the protection of a right so essential to indigenous peopleJs identit/ is ac0nowledged to be the responsibilit/ of the #tate, then surel/ the protection of rights less significant to the as such peoples would also be the dut/ of #tates. Nor is there in the FN =R-P an ac0nowledge ent of the right of indigenous peoples to the aerial do ain and at ospheric space. Ghat it upholds, in Article $3 thereof, is the right of indigenous peoples to the lands, territories and resources which the/ have traditionall/ owned, occupied or otherwise used or ac.uired.

Moreover, the FN =R-P, while upholding the right of indigenous peoples to autono /, does not obligate #tates to grant indigenous peoples the nearA independent status of an associated state. All the rights recogni1ed in that docu ent are .ualified in $rt1c:e 46 !0 6o::o?0< '. Not31"2 1" t310 %ec:!r!t1o" )!5 be interpreted as i pl/ing for an/ #tate, people, group or person an/ right to engage in an/ activit/ or to perfor an/ act contrar/ to the Charter of the Fnited Nations or co"0tr7e# !0 !7t3or1H1"2 or e"co7r!21"2 !"5 !ct1o" ?31c3 ?o7:# #10)e)ber or 1)/!1r, tot!::5 or 1" /!rt, t3e terr1tor1!: 1"te2r1t5 or /o:1t1c!: 7"1t5 o6 0o(ere12" !"# 1"#e/e"#e"t St!te0. Even if the FN =R-P were considered as part of the law of the land pursuant to Article --, #ection $ of the Constitution, it would not suffice to uphold the validit/ of the M<AAA= so as to render its co pliance with other laws unnecessar/. It 10, t3ere6ore, c:e!r t3!t t3e MO$-$% co"t!1"0 "7)ero70 /ro(101o"0 t3!t c!""ot be reco"c1:e# ?1t3 t3e Co"0t1t7t1o" !"# t3e :!?0 !0 /re0e"t:5 ?or#e#. Respondents proffer, however, that the signing of the M<AAA= alone would not have entailed an/ violation of law or grave abuse of discretion on their part, precisel/ because it stipulates that the provisions thereof inconsistent with the laws shall not ta0e effect until these laws are a ended. !he/ cite paragraph & of the M<AAA= strand on 6<EERNANCE .uoted earlier, but which is reproduced below for convenience> &. !he Parties agree that the echanis s and odalities for the actual i ple entation of this M<AAA= shall be spelt out in the Co prehensive Co pact to utuall/ ta0e such steps to enable it to occur effectivel/. An/ provisions of the M<AAA= re.uiring a end ents to the e"isting legal fra ewor0 shall co e into force upon signing of a Co prehensive Co pact and upon effecting the necessar/ changes to the legal fra ewor0 with due regard to non derogation of prior agree ents and within the stipulated ti efra e to be contained in the Co prehensive Co pact. -ndeed, the foregoing stipulation 0eeps an/ controversial provisions of the M<AAA= fro co ing into force until the necessar/ changes to the legal fra ewor0 are effected. -31:e t3e ?or# ICo"0t1t7t1o"I 10 "ot )e"t1o"e# 1" t3e /ro(101o" "o? 7"#er co"01#er!t1o" or !"5?3ere e:0e 1" t3e MO$$%, t3e ter) I:e2!: 6r!)e?or;I 10 cert!1":5 bro!# e"o723 to 1"c:7#e t3e Co"0t1t7t1o". Notwithstanding the suspensive clause, however, respondents, b/ their ere act of incorporating in the M<AAA= the provisions thereof regarding the associative relationship between the B*E and the Central 6overn ent, have alread/ violated the Me orandu of -nstructions 9ro !he President dated March ', $;;', which states that the @negotiations shall be conducted in accordance with " " " the principles of the sovereignt/ and terr1tor1!: 1"te2r1t5 of the Republic of the Philippines.@ 4E phasis supplied5 Establishing an associative relationship between the B*E and the Central

6overn ent is, for the reasons alread/ discussed, a preparation for independence, or worse, an i plicit ac0nowledg ent of an independent status alread/ prevailing. Even apart fro the aboveA entioned Me orandu , however, the M<AAA= is defective because the suspensive clause is invalid, as discussed below. !he authorit/ of the 6RP Peace Negotiating Panel to negotiate with the M-B9 is founded on E.<. No. 2, #ection %4c5, which states that there shall be established 6overn ent Peace Negotiating Panels for negotiations with different rebel groups to be @appointed b/ the President as her official e issaries to conduct negotiations, dialogues, and faceAtoAface discussions with rebel groups.@ !hese negotiating panels are to report to the President, through the PAPP on the conduct and progress of the negotiations. -t bears noting that the 6RP Peace Panel, in e"ploring lasting solutions to the Moro Proble through its negotiations with the M-B9, was not restricted b/ E.<. No. 2 onl/ to those options available under the laws as the/ presentl/ stand. <ne of the co ponents of a co prehensive peace process, which E.<. No. 2 collectivel/ refers to as the @Paths to Peace,@ is the pursuit of social, econo ic, and political refor s which a/ re.uire new legislation or even constitutional a end ents. #ec. )4a5 of E.<. No. 2, which reiterates #ection 24a5, of E.<. No. '$%,'3& states> #EC!-<N ). !he #i" Paths to Peace. A !he co ponents of the co prehensive peace process co prise the processes 0nown as the @Paths to Peace@. !hese co ponent processes are interrelated and not utuall/ e"clusive, and ust therefore be pursued si ultaneousl/ in a coordinated and integrated fashion. !he/ shall include, but a/ not be li ited to, the following> a. PFR#F-! <9 #<C-AB, EC<N<M-C AN= P<B-!-CAB RE9<RM#. !his co ponent involves the (12oro70 1)/:e)e"t!t1o" o6 (!r1o70 /o:1c1e0, re6or)0, /ro2r!)0 !"# /roFect0 !1)e# !t !##re001"2 t3e root c!70e0 o6 1"ter"!: !r)e# co"6:1ct0 !"# 0oc1!: 7"re0t. T310 )!5 reE71re !#)1"10tr!t1(e !ct1o", "e? :e210:!t1o" or e(e" co"0t1t7t1o"!: !)e"#)e"t0. " " " " 4E phasis supplied5 !he M<AAA=, therefore, a/ reasonabl/ be perceived as an atte pt of respondents to address, pursuant to this provision of E.<. No. 2, the root causes of the ar ed conflict in Mindanao. !he E.<. authori1ed the to @thin0 outside the bo",@ so to spea0. +ence, the/ negotiated and were set on signing the M<AAA= that included various social, econo ic, and political refor s which cannot, however, all be acco odated within the present legal fra ewor0, and which thus would re.uire new legislation and constitutional a end ents. !he in.uir/ on the legalit/ of the @suspensive clause,@ however, cannot stop here, because it ust be as0ed ?3et3er t3e Pre01#e"t 3er0e:6 )!5 e4erc10e t3e /o?er #e:e2!te# to t3e GRP Pe!ce P!"e: 7"#er E.O. No. 3, Sec. 4A!B.

!he President cannot delegate a power that she herself does not possess. Ma/ the President, in the course of peace negotiations, agree to pursue refor s that would re.uire new legislation and constitutional a end ents, or should the refor s be restricted onl/ to those solutions which the present laws allowM !he answer to this .uestion re.uires a discussion of t3e e4te"t o6 t3e Pre01#e"tM0 /o?er to co"#7ct /e!ce "e2ot1!t1o"0. !hat the authorit/ of the President to conduct peace negotiations with rebel groups is not e"plicitl/ entioned in the Constitution does not ean that she has no such authorit/. -n Sanla"as v. 6=ecutive Secretary,'3: in issue was the authorit/ of the President to declare a state of rebellion A an authorit/ which is not e"pressl/ provided for in the Constitution. !he Court held thus> @-n her ponencia in 5arcos v. 5anglapus, *ustice Cortes put her thesis into jurisprudence. !here, the Court, b/ a sli :A& argin, upheld the PresidentJs power to forbid the return of her e"iled predecessor. !he rationale for the ajorit/Js ruling rested on the PresidentJs . . . 7"0t!te# re01#7!: /o?er0 ?31c3 !re 1)/:1e# 6ro) t3e 2r!"t o6 e4ec7t1(e /o?er !"# ?31c3 !re "ece00!r5 6or 3er to co)/:5 ?1t3 3er #7t1e0 7"#er t3e Co"0t1t7t1o". T3e /o?er0 o6 t3e Pre01#e"t !re "ot :1)1te# to ?3!t !re e4/re00:5 e"7)er!te# 1" t3e !rt1c:e o" t3e E4ec7t1(e %e/!rt)e"t !"# 1" 0c!ttere# /ro(101o"0 o6 t3e Co"0t1t7t1o". !his is so, notwithstanding the avowed intent of the e bers of the Constitutional Co ission of '(:3 to li it the powers of the President as a reaction to the abuses under the regi e of Mr. Marcos, for the result was a li itation of specific powers of the President, particularl/ those relating to the co anderAinAchief clause, but not a di inution of the general grant of e"ecutive power. !hus, t3e Pre01#e"tM0 !7t3or1t5 to #ec:!re ! 0t!te o6 rebe::1o" 0/r1"20 1" t3e )!1" 6ro) 3er /o?er0 !0 c31e6 e4ec7t1(e !"#, !t t3e 0!)e t1)e, #r!?0 0tre"2t3 6ro) 3er Co))!"#er-1"-C31e6 /o?er0. " " " 4E phasis and underscoring supplied5 #i ilarl/, the PresidentJs power to conduct peace negotiations is i plicitl/ included in her powers as Chief E"ecutive and Co anderAinAChief. As Chief E"ecutive, the President has the general responsibilit/ to pro ote public peace, and as Co anderAinAChief, she has the ore specific dut/ to prevent and suppress rebellion and lawless violence.'3( As the e"perience of nations which have si ilarl/ gone through internal ar ed conflict will show, however, peace is rarel/ attained b/ si pl/ pursuing a ilitar/ solution. <ftenti es, changes as farAreaching as a funda ental reconfiguration of the nationJs constitutional structure is re.uired. !he observations of =r. ,irsti #a uels are enlightening, to wit> " " " C!Dhe fact re ains that a successful political and governance transition ust for the core of an/ postAconflict peaceAbuilding ission. As we have observed in Biberia and +aiti over the last ten

/ears, conflict cessation without odification of the political environ ent, even where stateAbuilding is underta0en through technical electoral assistance and institutionA or capacit/Abuilding, is unli0el/ to succeed. <n average, ore than %; percent of states e erging fro conflict return to conflict. Moreover, a substantial proportion of transitions have resulted in wea0 or li ited de ocracies. !he design of a constitution and its constitutionA a0ing process can pla/ an i portant role in the political and governance transition. ConstitutionA a0ing after conflict is an opportunit/ to create a co on vision of the future of a state and a road ap on how to get there. !he constitution can be partl/ a peace agree ent and partl/ a fra ewor0 setting up the rules b/ which the new de ocrac/ will operate.'&; -n the sa e vein, Professor Christine Bell, in her article on the nature and legal status of peace agree ents, observed that the t/pical wa/ that peace agree ents establish or confir echanis s for de ilitari1ation and de obili1ation is b/ lin0ing the to "e? co"0t1t7t1o"!: 0tr7ct7re0 addressing governance, elections, and legal and hu an rights institutions. '&' -n the Philippine e"perience, the lin0 between peace agree ents and constitutionA a0ing has been recogni1ed b/ no less than the fra ers of the Constitution. Behind the provisions of the Constitution on autono ous regions'&$ is the fra ersJ intention to i ple ent a particular peace agree ent, na el/, the !ripoli Agree ent of '(&3 between the 6RP and the MNB9, signed b/ then Fndersecretar/ of National =efense Car elo P. Barbero and then MNB9 Chair an Nur Misuari. MR. R<MFB<. !here are other spea0ers? so, although - have so e ore .uestions, - will reserve / right to as0 the if the/ are not covered b/ the other spea0ers. - have onl/ two .uestions. I 3e!r# o"e o6 t3e Co))1001o"er0 0!5 t3!t :oc!: !7to"o)5 !:re!#5 e410t0 1" t3e M70:1) re21o"? it is wor0ing ver/ well? it has, in fact, di inished a great deal of the proble s. #o, / .uestion is> 01"ce t3!t !:re!#5 e410t0, ?35 #o ?e 3!(e to 2o 1"to 0o)et31"2 "e?G MR. <PBE. Ma/ - answer that on behalf of Chair an Nolledo. Co issioner Husup Abuba0ar is right that cert!1" #e61"1te 0te/0 3!(e bee" t!;e" to 1)/:e)e"t t3e /ro(101o"0 o6 t3e Tr1/o:1 $2ree)e"t ?1t3 re0/ect to !" !7to"o)o70 re21o" 1" M1"#!"!o. T310 10 ! 2oo# 61r0t 0te/, b7t t3ere 10 "o E7e0t1o" t3!t t310 10 )ere:5 ! /!rt1!: re0/o"0e to t3e Tr1/o:1 $2ree)e"t 1t0e:6 !"# to t3e 67::er 0t!"#!r# o6 re21o"!: !7to"o)5 co"te)/:!te# 1" t3!t !2ree)e"t, !"# "o? b5 0t!te /o:1c5.'&24E phasis supplied5 !he constitutional provisions on autono / and the statutes enacted pursuant to the have, to the credit of their drafters, been partl/ successful. Nonetheless, the 9ilipino people are still faced with the realit/ of an onAgoing conflict between the 6overn ent and the M-B9. -f the President is to be

e"pected to find eans for bringing this conflict to an end and to achieve lasting peace in Mindanao, then she ust be given the leewa/ to e"plore, in the course of peace negotiations, solutions that a/ re.uire changes to the Constitution for their i ple entation. Being uni.uel/ vested with the power to conduct peace negotiations with rebel groups, the President is in a singular position to 0now the precise nature of their grievances which, if resolved, a/ bring an end to hostilities. !he President a/ not, of course, unilaterall/ i ple ent the solutions that she considers viable, but she a/ not be prevented fro sub itting the as reco endations to Congress, which could then, if it is inded, act upon the pursuant to the legal procedures for constitutional a end ent and revision. -n particular, Congress would have the option, pursuant to Article LE--, #ections ' and 2 of the Constitution, to propose the reco ended a end ents or revision to the people, call a constitutional convention, or sub it to the electorate the .uestion of calling such a convention. Ghile the President does not possess constituent powers A as those powers a/ be e"ercised onl/ b/ Congress, a Constitutional Convention, or the people through initiative and referendu A she a/ sub it proposals for constitutional change to Congress in a anner that does not involve the arrogation of constituent powers. -n Sanidad v. O56*6 ,'&) in issue was the legalit/ of then President MarcosJ act of directl/ sub itting proposals for constitutional a end ents to a referendu , b/passing the interi National Asse bl/ which was the bod/ vested b/ the '(&2 Constitution with the power to propose such a end ents. President Marcos, it will be recalled, never convened the interi National Asse bl/. !he ajorit/ upheld the PresidentJs act, holding that @the urges of absolute necessit/@ co pelled the President as the agent of the people to act as he did, there being no interi National Asse bl/ to propose constitutional a end ents. Against this ruling, *ustices !eehan0ee and MuSo1 Pal a vigorousl/ dissented. !he CourtJs 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 b/ either side. *ustice !eehan0eeJs dissent,'&% in particular, bears noting. Ghile he disagreed that the President a/ directl/ sub it proposed constitutional a end ents to a referendu , i plicit in his opinion is a recognition that he would have upheld the PresidentJs action along with the ajorit/ had the President convened the interi National Asse bl/ and coursed his proposals through it. !hus *ustice !eehan0ee opined> @#ince the Constitution provides for the organi1ation of the essential depart ents of govern ent, defines and deli its the powers of each and prescribes the anner of the e"ercise of such powers, and the constituent power has not been granted to but has been withheld fro the President or Pri e Minister, it follows that the PresidentJs .uestioned decrees proposing and sub itting constitutional a end ents directl/ to the people A?1t3o7t t3e 1"ter(e"t1o" o6 t3e 1"ter1) N!t1o"!: $00e)b:5 1" ?3o) t3e /o?er 10 e4/re00:5

(e0te#B are devoid of constitutional and legal basis.@ '&3 4E phasis supplied5 9ro the foregoing discussion, the principle a/ be inferred that the President A in the course of conducting peace negotiations A a/ validl/ consider i ple enting even those policies that re.uire changes to the Constitution, but she a/ "ot unilaterall/ i ple ent the ?1t3o7t t3e 1"ter(e"t1o" o6 Co"2re00, or !ct 1" !"5 ?!5 !0 16 t3e !00e"t o6 t3!t bo#5 ?ere !007)e# !0 ! cert!1"t5. #ince, under the present Constitution, the people also have the power to directl/ propose a end ents through initiative and referendu , the President a/ also sub it her reco endations to the people, not as a for al proposal to be voted on in a plebiscite si ilar to what President Marcos did in Sanidad, but for their independent consideration of whether these reco endations erit being for all/ proposed through initiative. !hese reco endations, however, a/ a ount to nothing ore than the PresidentJs suggestions to the people, for an/ further involve ent in the process of initiative b/ the Chief E"ecutive a/ vitiate its character as a genuine @peopleJs initiative.@ !he onl/ initiative recogni1ed b/ the Constitution is that which trul/ proceeds fro the people. As the Court stated in *ambino v. O56*6 >'&& @!he Ba bino 6roup clai s that their initiative is the QpeopleJs voice.J +owever, the Ba bino 6roup unabashedl/ states in FBAP Resolution No. $;;3A;$, in the verification of their petition with the C<MEBEC, that QFBAP aintains its un.ualified support to the agenda of +er E"cellenc/ President 6loria MacapagalAArro/o for constitutional refor s.J !he Ba bino 6roup thus !#)1t0 that their QpeopleJsJ initiative is an Q7"E7!:161e# 07//ort to t3e !2e"#!M of the incu bent President to change the Constitution. !his forewarns the Court to be war/ of incantations of QpeopleJs voiceJ or Qsovereign willJ in the present initiative.@ -t will be observed that the President has authorit/, as stated in her oath of office,'&: onl/ to preserve and defend the Constitution. #uch presidential power does not, however, e"tend to allowing her to change the Constitution, but si pl/ to reco end proposed a end ents or revision. As long as she li its herself to reco ending these changes and sub its to the proper procedure for constitutional a end ents and revision, her ere reco endation need not be construed as an unconstitutional act. !he foregoing discussion focused on the PresidentJs authorit/ to propose co"0t1t7t1o"!: a end ents, since her authorit/ to propose new :e210:!t1o" is not in controvers/. -t has been an accepted practice for Presidents in this jurisdiction to propose new legislation. <ne of the ore pro inent instances the practice is usuall/ done is in the /earl/ #tate of the Nation Address of the President to Congress. Moreover, the annual general appropriations bill has alwa/s been based on the budget prepared b/ the President, which A for all intents and purposes A is a proposal for new legislation co ing fro the President.'&(

T3e I070/e"01(e c:!70eI 1" t3e MO$-$% (1e?e# 1" :123t o6 t3e !bo(e#10c700e# 0t!"#!r#0 6iven the li ited nature of the PresidentJs authorit/ to propose constitutional a end ents, she c!""ot 27!r!"tee to an/ third part/ that the re.uired a end ents will eventuall/ be put in place, nor even be sub itted to a plebiscite. !he ost she could do is sub it these proposals as reco endations either to Congress or the people, in who constituent powers are vested. Paragraph & on 6overnance of the M<AAA= states, however, that all provisions thereof which cannot be reconciled with the present Constitution and laws @shall co e into force upon signing of a Co prehensive Co pact and upon effecting the necessar/ changes to the legal fra ewor0.@ !his stipulation does not bear the ar0s of a suspensive condition A defined in civil law as a future and uncertain event A but of a ter . -t is not a .uestion of ?3et3er the necessar/ changes to the legal fra ewor0 will be effected, but ?3e". !hat there is no uncertaint/ being conte plated is plain fro what follows, for the paragraph goes on to state that the conte plated changes shall be @with due regard to non derogation of prior agree ents and within the stipulated ti efra e to be contained in the Co prehensive Co pact.@ Pursuant to this stipulation, therefore, it is )!"#!tor5 for the 6RP to effect the changes to the legal fra ewor0 conte plated in the M<AAA= A which changes would include constitutional a end ents, as discussed earlier. -t bears noting that, ,5 t3e t1)e t3e0e c3!"2e0 !re /7t 1" /:!ce, t3e MO$-$% 1t0e:6 ?o7:# be co7"te# !)o"2 t3e I/r1or !2ree)e"t0I 6ro) ?31c3 t3ere co7:# be "o #ero2!t1o". Ghat re ains for discussion in the Co prehensive Co pact would erel/ be the i ple enting details for these @consensus points@ and, notabl/, the deadline for effecting the conte plated changes to the legal fra ewor0. Plainl/, stipulationAparagraph & on 6<EERNANCE is 1"co"010te"t ?1t3 t3e :1)1t0 o6 t3e Pre01#e"tM0 !7t3or1t5 to /ro/o0e co"0t1t7t1o"!: !)e"#)e"t0, it being a virtual guarantee that the Constitution and the laws of the Republic of the Philippines will certainl/ be adjusted to confor to all the @consensus points@ found in the M<AAA=. +ence, it ust be struc0 down as 7"co"0t1t7t1o"!:. A co parison between the @suspensive clause@ of the M<AAA= with a si ilar provision appearing in the '((3 final peace agree ent between the MNB9 and the 6RP is ost instructive. As a bac0drop, the parties to the '((3 Agree ent stipulated that it would be i ple ented in two phases. P3!0e I covered a threeA/ear transitional period involving the putting up of new ad inistrative structures through E"ecutive <rder, such as the #pecial Pone of Peace and =evelop ent 4#P<PA=5 and the #outhern Philippines Council for Peace and =evelop ent 4#PCP=5, while P3!0e II covered the establish ent of the new regional autono ous

govern ent through a end ent or repeal of R.A. No. 3&2), which was then the <rganic Act of the ARMM. !he stipulations on Phase -- consisted of specific agree ents on the structure of the e"panded autono ous region envisioned b/ the parties. !o that e"tent, the/ are si ilar to the provisions of the M<AAA=. !here is, however, a crucial difference between the two agree ents. Ghile the M<AA A= (1rt7!::5 27!r!"tee0 t3!t t3e I"ece00!r5 c3!"2e0 to t3e :e2!: 6r!)e?or;I ?1:: be /7t 1" /:!ce, the 6RPAMNB9 final peace agree ent states thus> @Accordingl/, these provisions Con Phase --D shall be reco))e"#e# b/ the 6RP to Congress for incorporation in the a endator/ or repealing law.@ Concerns have been raised that the M<AAA= would have given rise to a binding international law obligation on the part of the Philippines to change its Constitution in confor it/ thereto, on the ground that it a/ be considered either as a binding agree ent under international law, or a unilateral declaration of the Philippine govern ent to the international co unit/ that it would grant to the Bangsa oro people all the concessions therein stated. Neither ground finds sufficient support in international law, however. !he M<AAA=, as earlier entioned in the overview thereof, would have included foreign dignitaries as signatories. -n addition, representatives of other nations were invited to witness its signing in ,uala Bu pur. !hese circu stances readil/ lead one to sur ise that the M<AAA= would have had the status of a binding international agree ent had it been signed. An e"a ination of the prevailing principles in international law, however, leads to the contrar/ conclusion. !he =ecision on Challenge to *urisdiction> Bo Y Accord A nest/':; 4the Bo Y Accord case5 of the #pecial Court of #ierra Beone is enlightening. !he Bo Y Accord was a peace agree ent signed on *ul/ &, '((( between the 6overn ent of #ierra Beone and the Revolutionar/ Fnited 9ront 4RF95, a rebel group with which the #ierra Beone 6overn ent had been in ar ed conflict for around eight /ears at the ti e of signing. !here were nonA contracting signatories to the agree ent, a ong which were the 6overn ent of the !ogolese Republic, the Econo ic Co unit/ of Gest African #tates, and the FN. <n *anuar/ '3, $;;$, after a successful negotiation between the FN #ecretar/A6eneral and the #ierra Beone 6overn ent, another agree ent was entered into b/ the FN and that 6overn ent whereb/ the #pecial Court of #ierra Beone was established. !he sole purpose of the #pecial Court, an international court, was to tr/ persons who bore the greatest responsibilit/ for serious violations of international hu anitarian law and #ierra Beonean law co itted in the territor/ of #ierra Beone since Nove ber 2;, '((3. A ong the stipulations of the Bo Y Accord was a provision for the full pardon of the e bers of the RF9 with respect to an/thing done b/ the in pursuit of their objectives as e bers of that organi1ation since the conflict began.

-n the Bo Y Accord case, the =efence argued that the Accord created an 1"ter"!t1o"!::5 b1"#1"2 obligation not to prosecute the beneficiaries of the a nest/ provided therein, citing, a ong other things, the participation of foreign dignitaries and international organi1ations in the finali1ation of that agree ent. !he #pecial Court, however, rejected this argu ent, ruling that the Bo e Accord is not a treat/ and that it can onl/ create binding obligations and rights between the parties in unicipal law, not in international law. +ence, the #pecial Court held, it is ineffective in depriving an international court li0e it of jurisdiction. @2&. -n regard to the nature of a negotiated settle ent of an internal ar ed conflict 1t 10 e!05 to !007)e !"# to !r27e ?1t3 0o)e #e2ree o6 /:!701b1:1t5, !0 %e6e"ce co7"0e: 6or t3e #e6e"#!"t0 0ee) to 3!(e #o"e, t3!t t3e )ere 6!ct t3!t 1" !##1t1o" to t3e /!rt1e0 to t3e co"6:1ct, t3e #oc7)e"t 6or)!:1H1"2 t3e 0ett:e)e"t 10 012"e# b5 6ore12" 3e!#0 o6 0t!te or t3e1r re/re0e"t!t1(e0 !"# re/re0e"t!t1(e0 o6 1"ter"!t1o"!: or2!"1H!t1o"0, )e!"0 t3e !2ree)e"t o6 t3e /!rt1e0 10 1"ter"!t1o"!:1He# 0o !0 to cre!te ob:12!t1o"0 1" 1"ter"!t1o"!: :!?. """" );. Al ost ever/ conflict resolution will involve the parties to the conflict and the ediator or facilitator of the settle ent, or persons or bodies under whose auspices the settle ent too0 place but who are not at all parties to the conflict, are not contracting parties and who do not clai an/ obligation fro the contracting parties or incur an/ obligation fro the settle ent. )'. I" t310 c!0e, t3e /!rt1e0 to t3e co"6:1ct !re t3e :!?67: !7t3or1t5 o6 t3e St!te !"# t3e RU ?31c3 3!0 "o 0t!t70 o6 0t!te3oo# !"# 10 to !:: 1"te"t0 !"# /7r/o0e0 ! 6!ct1o" ?1t31" t3e 0t!te. T3e "o"-co"tr!ct1"2 012"!tor1e0 o6 t3e Lo)T $2ree)e"t ?ere )or!: 27!r!"tor0 o6 t3e /r1"c1/:e t3!t, 1" t3e ter)0 o6 $rt1c:e CCCI8 o6 t3e $2ree)e"t, It310 /e!ce !2ree)e"t 10 1)/:e)e"te# ?1t3 1"te2r1t5 !"# 1" 2oo# 6!1t3 b5 bot3 /!rt1e0I. T3e )or!: 27!r!"tor0 !007)e# "o :e2!: ob:12!t1o". -t is recalled that the FN b/ its representative appended, presu abl/ for avoidance of doubt, an understanding of the e"tent of the agree ent to be i ple ented as not including certain international cri es. )$. An international agree ent in the nature of a treat/ ust create rights and obligations regulated b/ international law so that a breach of its ter s will be a breach deter ined under international law which will also provide principle eans of enforce ent. T3e Lo)T $2ree)e"t cre!te# "e1t3er r123t0 "or ob:12!t1o"0 c!/!b:e o6 be1"2 re27:!te# b5 1"ter"!t1o"!: :!?. $" !2ree)e"t 07c3 !0 t3e Lo)T $2ree)e"t ?31c3 br1"20 to !" e"# !" 1"ter"!: !r)e# co"6:1ct "o #o7bt cre!te0 ! 6!ct7!: 01t7!t1o" o6 re0tor!t1o" o6 /e!ce t3!t t3e 1"ter"!t1o"!: co))7"1t5 !ct1"2 t3ro723 t3e Sec7r1t5 Co7"c1: )!5 t!;e "ote o6. T3!t, 3o?e(er, ?1:: "ot

co"(ert 1t to !" 1"ter"!t1o"!: !2ree)e"t ?31c3 cre!te0 !" ob:12!t1o" e"6orce!b:e 1" 1"ter"!t1o"!:, !0 #10t1"27103e# 6ro) )7"1c1/!:, :!?. A breach of the ter s of such a peace agree ent resulting in resu ption of internal ar ed conflict or creating a threat to peace in the deter ination of the #ecurit/ Council a/ indicate a reversal of the factual situation of peace to be visited with possible legal conse.uences arising fro the new situation of conflict created. #uch conse.uences such as action b/ the #ecurit/ Council pursuant to Chapter E-- arise fro the situation and not fro the agree ent, nor fro the obligation i posed b/ it. #uch action cannot be regarded as a re ed/ for the breach. $ /e!ce !2ree)e"t ?31c3 0ett:e0 !" 1"ter"!: !r)e# co"6:1ct c!""ot be !0cr1be# t3e 0!)e 0t!t70 !0 o"e ?31c3 0ett:e0 !" 1"ter"!t1o"!: !r)e# co"6:1ct ?31c3, e00e"t1!::5, )70t be bet?ee" t?o or )ore ?!rr1"2 St!te0. T3e Lo)T $2ree)e"t c!""ot be c3!r!cter10e# !0 !" 1"ter"!t1o"!: 1"0tr7)e"t. " " "@ 4E phasis, italics and underscoring supplied5 #i ilarl/, that the M<AAA= would have been signed b/ representatives of #tates and international organi1ations not parties to the Agree ent would not have sufficed to vest in it a binding character under international law. -n another vein, concern has been raised that the M<AAA= would a ount to a unilateral declaration of the Philippine #tate, binding under international law, that it would co pl/ with all the stipulations stated therein, with the result that it would have to a end its Constitution accordingl/ regardless of the true will of the people. Cited as authorit/ for this view is )ustralia v. 8rance,':' also 0nown as the Nuclear !ests Case, decided b/ the -nternational Court of *ustice 4-C*5. -n the Nuclear !ests Case, Australia challenged before the -C* the legalit/ of 9ranceJs nuclear tests in the #outh Pacific. 9rance refused to appear in the case, but public state ents fro its President, and si ilar state ents fro other 9rench officials including its Minister of =efence, that its '(&) series of at ospheric tests would be its last, persuaded the -C* to dis iss the case. ':$ !hose state ents, the -C* held, a ounted to a legal underta0ing addressed to the international co unit/, which re.uired no acceptance fro other #tates for it to beco e effective. Essential to the -C* ruling is its finding that the 9rench govern ent intended to be bound to the international co unit/ in issuing its public state ents, vi1> )2. -t is well recogni1ed that declarations ade b/ wa/ of unilateral acts, concerning legal or factual situations, a/ have the effect of creating legal obligations. =eclarations of this 0ind a/ be, and often are, ver/ specific. -3e" 1t 10 t3e 1"te"t1o" o6 t3e St!te )!;1"2 t3e #ec:!r!t1o" t3!t 1t 03o7:# beco)e bo7"# !ccor#1"2 to 1t0 ter)0, t3!t 1"te"t1o" co"6er0 o" t3e #ec:!r!t1o" t3e c3!r!cter o6 ! :e2!: 7"#ert!;1"2, t3e St!te be1"2 t3e"ce6ort3 :e2!::5 reE71re# to 6o::o? ! co7r0e o6 co"#7ct co"010te"t ?1t3 t3e #ec:!r!t1o". An

underta0ing of this 0ind, if given publicl/, and with an intent to be bound, even though not ade within the conte"t of international negotiations, is binding. -n these circu stances, nothing in the nature of a .uid pro .uo nor an/ subse.uent acceptance of the declaration, nor even an/ repl/ or reaction fro other #tates, is re.uired for the declaration to ta0e effect, since such a re.uire ent would be inconsistent with the strictl/ unilateral nature of the juridical act b/ which the pronounce ent b/ the #tate was ade. )). <f course, "ot !:: 7"1:!ter!: !ct0 1)/:5 ob:12!t1o"9 b7t ! St!te )!5 c3oo0e to t!;e 7/ ! cert!1" /o01t1o" 1" re:!t1o" to ! /!rt1c7:!r )!tter ?1t3 t3e 1"te"t1o" o6 be1"2 bo7"#-t3e 1"te"t1o" 10 to be !0cert!1"e# b5 1"ter/ret!t1o" o6 t3e !ct. Ghen #tates a0e state ents b/ which their freedo of action is to be li ited, a restrictive interpretation is called for. """" %'. I" !""o7"c1"2 t3!t t3e 1974 0er1e0 o6 !t)o0/3er1c te0t0 ?o7:# be t3e :!0t, t3e re"c3 Go(er")e"t co"(e5e# to t3e ?or:# !t :!r2e, 1"c:7#1"2 t3e $//:1c!"t, 1t0 1"te"t1o" e66ect1(e:5 to ter)1"!te t3e0e te0t0. It ?!0 bo7"# to !007)e t3!t ot3er St!te0 )123t t!;e "ote o6 t3e0e 0t!te)e"t0 !"# re:5 o" t3e1r be1"2 e66ect1(e. T3e (!:1#1t5 o6 t3e0e 0t!te)e"t0 !"# t3e1r :e2!: co"0eE7e"ce0 )70t be co"01#ere# ?1t31" t3e 2e"er!: 6r!)e?or; o6 t3e 0ec7r1t5 o6 1"ter"!t1o"!: 1"terco7r0e , and the confidence and trust which are so essential in the relations a ong #tates. It 10 6ro) t3e !ct7!: 07b0t!"ce o6 t3e0e 0t!te)e"t0, !"# 6ro) t3e c1rc7)0t!"ce0 !tte"#1"2 t3e1r )!;1"2, t3!t t3e :e2!: 1)/:1c!t1o"0 o6 t3e 7"1:!ter!: !ct )70t be #e#7ce#. T3e obFect0 o6 t3e0e 0t!te)e"t0 !re c:e!r !"# t3e5 ?ere !##re00e# to t3e 1"ter"!t1o"!: co))7"1t5 !0 ! ?3o:e, !"# t3e Co7rt 3o:#0 t3!t t3e5 co"0t1t7te !" 7"#ert!;1"2 /o00e001"2 :e2!: e66ect. !he Court considers O$&; that the President of the Republic, in deciding upon the effective cessation of at ospheric tests, gave an underta0ing to the international co unit/ to which his words were addressed. " " " 4E phasis and underscoring supplied5 As gathered fro the aboveA.uoted ruling of the -C*, public state ents of a state representative a/ be construed as a unilateral declaration onl/ when the following conditions are present> the state ents were clearl/ addressed to the international co unit/, the state intended to be bound to that co unit/ b/ its state ents, and that not to give legal effect to those state ents would be detri ental to the securit/ of international intercourse. Plainl/, unilateral declarations arise onl/ in peculiar circu stances. !he li ited applicabilit/ of the Nuclear !ests Case ruling was recogni1ed in a later case decided b/ the -C* entitled !ur"ina 8aso v. 5ali,':2 also 0nown as the Case Concerning the 9rontier =ispute. !he public declaration subject of that case was a state ent ade b/ the President of Mali, in an interview b/ a foreign press agenc/, that Mali would abide b/ the decision to be issued b/

a co ission of the <rgani1ation of African Fnit/ on a frontier dispute then pending between Mali and Bur0ina 9aso. Fnli0e in the Nuclear !ests Case, the -C* held that the state ent of MaliJs President was not a unilateral act with legal i plications. -t clarified that its ruling in the Nuclear !ests case rested on the peculiar circu stances surrounding the 9rench declaration subject thereof, to wit> );. -n order to assess the intentions of the author of a unilateral act, account ust be ta0en of all the factual circu stances in which the act occurred. 9or e"a ple, 1" t3e N7c:e!r Te0t0 c!0e0, t3e Co7rt too; t3e (1e? t3!t 01"ce t3e !//:1c!"t St!te0 ?ere "ot t3e o":5 o"e0 co"cer"e# !t t3e /o001b:e co"t1"7!"ce o6 !t)o0/3er1c te0t1"2 b5 t3e re"c3 Go(er")e"t, t3!t Go(er")e"tM0 7"1:!ter!: #ec:!r!t1o"0 3!# Sco"(e5e# to t3e ?or:# !t :!r2e, 1"c:7#1"2 t3e $//:1c!"t, 1t0 1"te"t1o" e66ect1(e:5 to ter)1"!te t3e0e te0t0S 4-.C.*. Reports '(&), p. $3(, para. %'? p. )&), para. %25. I" t3e /!rt1c7:!r c1rc7)0t!"ce0 o6 t3o0e c!0e0, t3e re"c3 Go(er")e"t co7:# "ot e4/re00 !" 1"te"t1o" to be bo7"# ot3er?10e t3!" b5 7"1:!ter!: #ec:!r!t1o"0. It 10 #1661c7:t to 0ee 3o? 1t co7:# 3!(e !cce/te# t3e ter)0 o6 ! "e2ot1!te# 0o:7t1o" ?1t3 e!c3 o6 t3e !//:1c!"t0 ?1t3o7t t3ereb5 Feo/!r#1H1"2 1t0 co"te"t1o" t3!t 1t0 co"#7ct ?!0 :!?67:. T3e c1rc7)0t!"ce0 o6 t3e /re0e"t c!0e !re r!#1c!::5 #166ere"t. Here, t3ere ?!0 "ot31"2 to 31"#er t3e P!rt1e0 6ro) )!"16e0t1"2 !" 1"te"t1o" to !cce/t t3e b1"#1"2 c3!r!cter o6 t3e co"c:701o"0 o6 t3e Or2!"1H!t1o" o6 $6r1c!" U"1t5 Me#1!t1o" Co))1001o" b5 t3e "or)!: )et3o#< ! 6or)!: !2ree)e"t o" t3e b!010 o6 rec1/roc1t5. #ince no agree ent of this 0ind was concluded between the Parties, the Cha ber finds that there are no grounds to interpret the declaration ade b/ MaliJs head of #tate on '' April '(&% as a unilateral act with legal i plications in regard to the present case. 4E phasis and underscoring supplied5 Assessing the M<AAA= in light of the above criteria, it would not have a ounted to a unilateral declaration on the part of the Philippine #tate to the international co unit/. !he Philippine panel did not draft the sa e with the clear intention of being bound thereb/ to the international co unit/ as a whole or to an/ #tate, but onl/ to the M-B9. Ghile there were #tates and international organi1ations involved, one wa/ or another, in the negotiation and projected signing of the M<AAA=, the/ participated erel/ as witnesses or, in the case of Mala/sia, as facilitator. As held in the Bo Y Accord case, the ere fact that in addition to the parties to the conflict, the peace settle ent is signed b/ representatives of states and international organi1ations does not ean that the agree ent is internationali1ed so as to create obligations in international law. #ince the co it ents in the M<AAA= were not addressed to #tates, not to give legal effect to such co it ents would not be detri ental to the

securit/ of international intercourse A to the trust and confidence essential in the relations a ong #tates. -n one i portant respect, the circu stances surrounding the M<AAA= are closer to that of !ur"ina 8aso wherein, as alread/ discussed, the Mali PresidentJs state ent was not held to be a binding unilateral declaration b/ the -C*. As in that case, there was also nothing to hinder the Philippine panel, had it reall/ been its intention to be bound to other #tates, to anifest that intention b/ for al agree ent. +ere, that for al agree ent would have co e about b/ the inclusion in the M<AAA= of a clear co it ent to be legall/ bound to the international co unit/, not just the M-B9, and b/ an e.uall/ clear indication that the signatures of the participating statesA representatives would constitute an acceptance of that co it ent. Entering into such a for al agree ent would not have resulted in a loss of face for the Philippine govern ent before the international co unit/, which was one of the difficulties that prevented the 9rench 6overn ent fro entering into a for al agree ent with other countries. !hat the Philippine panel did not enter into such a for al agree ent suggests that it had no intention to be bound to the international co unit/. <n that ground, the M<AAA= a/ "ot be considered a unilateral declaration under international law. !he M<AAA= not being a docu ent that can bind the Philippines under international law notwithstanding, respondentsJ al ost consu ated act of 27!r!"tee1"2 !)e"#)e"t0 to t3e :e2!: 6r!)e?or; 10, b5 1t0e:6, 07661c1e"t to co"0t1t7te 2r!(e !b70e o6 #10cret1o". !he grave abuse lies not in the fact that the/ considered, as a solution to the Moro Proble , the creation of a state within a state, but in their bra1en ?1::1"2"e00 to 27!r!"tee t3!t Co"2re00 !"# t3e 0o(ere12" 1:1/1"o /eo/:e ?o7:# 21(e t3e1r 1)/r1)!t7r to t3e1r 0o:7t1o". Fpholding such an act would a ount to authori1ing a usurpation of the constituent powers vested onl/ in Congress, a Constitutional Convention, or the people the selves through the process of initiative, for the onl/ wa/ that the E"ecutive can ensure the outco e of the a end ent process is through an undue influence or interference with that process. !he sovereign people a/, if it so desired, go to the e"tent of giving up a portion of its own territor/ to the Moros for the sa0e of peace, for it can change the Constitution in an/ it wants, so long as the change is not inconsistent with what, in international law, is 0nown as (us ogens.':) Respondents, however, a/ not pree pt it in that decision. SUMM$R+ !he petitions are ripe for adjudication. !he failure of respondents to consult the local govern ent units or co unities affected constitutes a departure b/ respondents fro their andate under E.<. No. 2. Moreover, respondents e"ceeded their authorit/ b/ the ere act of guaranteeing a end ents to the Constitution. An/ alleged violation of the Constitution b/ an/ branch of govern ent is a proper atter for judicial review. As the petitions involve constitutional issues which are of para ount public interest or of transcendental i portance, the Court grants the petitioners,

petitionersAinAintervention and intervening respondents the re.uisite locus standi in 0eeping with the liberal stance adopted in ,avid v. 5acapagal)rroyo. Contrar/ to the assertion of respondents that the nonAsigning of the M<AAA= and the eventual dissolution of the 6RP Peace Panel ooted the present petitions, the Court finds that the present petitions provide an e"ception to the @ oot and acade ic@ principle in view of 4a5 the grave violation of the Constitution involved? 4b5 the e"ceptional character of the situation and para ount public interest? 4c5 the need to for ulate controlling principles to guide the bench, the bar, and the public? and 4d5 the fact that the case is capable of repetition /et evading review. !he M<AAA= is a significant part of a series of agree ents necessar/ to carr/ out the 6RPAM-B9 !ripoli Agree ent on Peace signed b/ the govern ent and the M-B9 bac0 in *une $;;'. +ence, the present M<AAA= can be renegotiated or another one drawn up that could contain si ilar or significantl/ dissi ilar provisions co pared to the original. !he Court, however, finds that the pra/ers for anda us have been rendered oot in view of the respondentsJ action in providing the Court and the petitioners with the official cop/ of the final draft of the M<AAA= and its anne"es. !he peopleJs right to infor ation on atters of public concern under #ec. &, Article --- of the Constitution is in splendid symmetry with the state polic/ of full public disclosure of all its transactions involving public interest under #ec. $:, Article -- of the Constitution. !he right to infor ation guarantees the right of the people to de and infor ation, while #ection $: recogni1es the dut/ of officialdo to give infor ation even if nobod/ de ands. !he co plete and effective e"ercise of the right to infor ation necessitates that its co ple entar/ provision on public disclosure derive the sa e selfAe"ecutor/ nature, subject onl/ to reasonable safeguards or li itations as a/ be provided b/ law. !he contents of the M<AAA= is a atter of para ount public concern involving public interest in the highest order. -n declaring that the right to infor ation conte plates steps and negotiations leading to the consu ation of the contract, jurisprudence finds no distinction as to the e"ecutor/ nature or co ercial character of the agree ent. An essential ele ent of these twin freedo s is to 0eep a continuing dialogue or process of co unication between the govern ent and the people. Corollar/ to these twin rights is the design for feedbac0 echanis s. !he right to public consultation was envisioned to be a species of these public rights. At least three pertinent laws ani ate these constitutional i peratives and justif/ the e"ercise of the peopleJs right to be consulted on relevant atters relating to the peace agenda. One, E.<. No. 2 itself is replete with echanics for continuing consultations on both national and local levels and for a principal foru for consensusA

building. -n fact, it is the dut/ of the Presidential Adviser on the Peace Process to conduct regular dialogues to see0 relevant infor ation, co ents, advice, and reco endations fro peace partners and concerned sectors of societ/. Two, Republic Act No. &'3; or the Bocal 6overn ent Code of '((' re.uires all national offices to conduct consultations before an/ project or progra critical to the environ ent and hu an ecolog/ including those that a/ call for the eviction of a particular group of people residing in such localit/, is i ple ented therein. !he M<AAA= is one peculiar progra that une.uivocall/ and unilaterall/ vests ownership of a vast territor/ to the Bangsa oro people, which could pervasivel/ and drasticall/ result to the diaspora or displace ent of a great nu ber of inhabitants fro their total environ ent. Three, Republic Act No. :2&' or the -ndigenous Peoples Rights Act of '((& provides for clearAcut procedure for the recognition and delineation of ancestral do ain, which entails, a ong other things, the observance of the free and prior infor ed consent of the -ndigenous Cultural Co unitiesI-ndigenous Peoples. /otably' the statute does not grant the 6=ecutive ,epartment or any government agency the power to delineate and recognize an ancestral domain claim by mere agreement or compromise . !he invocation of the doctrine of e"ecutive privilege as a defense to the general right to infor ation or the specific right to consultation is untenable. !he various e"plicit legal provisions fl/ in the face of e"ecutive secrec/. -n an/ event, respondents effectivel/ waived such defense after it unconditionall/ disclosed the official copies of the final draft of the M<AAA=, for judicial co pliance and public scrutin/. -n su , the Presidential Adviser on the Peace Process co itted grave abuse of discretion when he failed to carr/ out the pertinent consultation process, as andated b/ E.<. No. 2, Republic Act No. &'3;, and Republic Act No. :2&'. !he furtive process b/ which the M<AAA= was designed and crafted runs contrar/ to and in e"cess of the legal authorit/, and a ounts to a whi sical, capricious, oppressive, arbitrar/ and despotic e"ercise thereof. -t illustrates a gross evasion of positive dut/ and a virtual refusal to perfor the dut/ enjoined. !he M<AAA= cannot be reconciled with the present Constitution and laws. Not onl/ its specific provisions but the ver/ concept underl/ing the , na el/, the associative relationship envisioned between the 6RP and the B*E, are 7"co"0t1t7t1o"!:, for the concept presupposes that the associated entit/ is a state and i plies that the sa e is on its wa/ to independence. Ghile there is a clause in the M<AAA= stating that the provisions thereof inconsistent with the present legal fra ewor0 will not be effective until that fra ewor0 is a ended, the sa e does not cure its defect. !he inclusion of provisions in the M<AAA= establishing an associative relationship between the B*E and the Central 6overn ent is, itself, a violation of the Me orandu of -nstructions 9ro !he President dated March ', $;;', addressed to the govern ent peace panel. Moreover, as the clause is

worded, it virtuall/ guarantees that the necessar/ a end ents to the Constitution and the laws will eventuall/ be put in place. Neither the 6RP Peace Panel nor the President herself is authori1ed to a0e such a guarantee. Fpholding such an act would a ount to authori1ing a usurpation of the constituent powers vested onl/ in Congress, a Constitutional Convention, or the people the selves through the process of initiative, for the onl/ wa/ that the E"ecutive can ensure the outco e of the a end ent process is through an undue influence or interference with that process. Ghile the M<AAA= would not a ount to an international agree ent or unilateral declaration binding on the Philippines under international law, respondentsJ act of guaranteeing a end ents is, b/ itself, alread/ a constitutional violation that renders the M<AAA= fatall/ defective. -HERE ORE, respondentsJ otion to dis iss is %ENIE%. !he ain and intervening petitions are 6-EEN =FE C<FR#E and hereb/ 6RAN!E=. !he Me orandu of Agree ent on the Ancestral =o ain Aspect of the 6RPAM-B9 !ripoli Agree ent on Peace of $;;' is declared contrar/ to law and the Constitution. SO OR%ERE%. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 1'961& ebr7!r5 1, 2*11 ,$+$N MUN$, !0 re/re0e"te# b5 Re/. S$TUR OC$MPO, Re/. CRISPIN ,ELTR$N, !"# Re/. LI=$ L. M$=$, Petitioner, vs. $L,ERTO ROMULO, 1" 310 c!/!c1t5 !0 E4ec7t1(e Secret!r5, !"# ,L$S . OPLE, 1" 310 c!/!c1t5 !0 Secret!r5 o6 ore12" $66!1r0, Respondents. =EC-#-<N 8EL$SCO, .R., J.: T3e C!0e !his petition' for certiorari, anda us and prohibition under Rule 3% assails and see0s to nullif/ the NonA#urrender Agree ent concluded b/ and between the Republic of the Philippines 4RP5 and the Fnited #tates of A erica 4F#A5. T3e !ct0 Petitioner Ba/an Muna is a dul/ registered part/Alist group established to represent the arginali1ed sectors of societ/. Respondent Blas 9. <ple, now deceased, was the #ecretar/ of 9oreign Affairs during the period aterial to this case. Respondent Alberto Ro ulo was i pleaded in his capacit/ as then E"ecutive #ecretar/.$ Ro)e St!t7te o6 t3e I"ter"!t1o"!: Cr1)1"!: Co7rt

+aving a 0e/ deter inative bearing on this case is the Ro e #tatute 2 establishing the -nternational Cri inal Court 4-CC5 with @the power to e=ercise its jurisdiction over persons for the most serious crimes of international concern " " " and shall be complementary to the national criminal jurisdictions.@) !he serious cri es adverted to cover those considered grave under international law, such as genocide, cri es against hu anit/, war cri es, and cri es of aggression.% <n =ece ber $:, $;;;, the RP, through Charge dRAffaires Enri.ue A. Manalo, signed the Ro e #tatute which, b/ its ter s, is @subject to ratification, acceptance or approval@ b/ the signator/ states. 3 As of the filing of the instant petition, onl/ ($ out of the '2( signator/ countries appear to have co pleted the ratification, approval and concurrence process. !he Philippines is not a ong the ($. RP-US No"-S7rre"#er $2ree)e"t <n Ma/ (, $;;2, then A bassador 9rancis *. Ricciardone sent F# E bass/ Note No. ;)&; to the =epart ent of 9oreign Affairs 4=9A5 proposing the ter s of the nonAsurrender bilateral agree ent 4 )greement, hereinafter5 between the F#A and the RP. Eia E"change of Notes No. B9<A;$:A;2& dated Ma/ '2, $;;2 4EIN B9<A;$:A ;2, hereinafter5, the RP, represented b/ then =9A #ecretar/ <ple, agreed with and accepted the F# proposals e bodied under the F# E bass/ Note adverted to and put in effect the )greement with the F# govern ent. -n esse, the )greement ai s to protect what it refers to and defines as @persons@ of the RP and F# fro frivolous and harass ent suits that ight be brought against the in international tribunals. : -t is reflective of the increasing pace of the strategic securit/ and defense partnership between the two countries. As of Ma/ $, $;;2, si ilar bilateral agree ents have been effected b/ and between the F# and 22 other countries. ( !he )greement pertinentl/ provides as follows> '. 9or purposes of this Agree ent, @persons@ are current or for er 6overn ent officials, e plo/ees 4including contractors5, or ilitar/ personnel or nationals of one Part/. $. Persons of one Part/ present in the territor/ of the other shall not, absent the e"press consent of the first Part/, 4a5 be surrendered or transferred b/ an/ eans to an/ international tribunal for an/ purpose, unless such tribunal has been established b/ the FN #ecurit/ Council, or 4b5 be surrendered or transferred b/ an/ eans to an/ other entit/ or third countr/, or e"pelled to a third countr/, for the purpose of surrender to or transfer to an/ international tribunal, unless such tribunal has been established b/ the FN #ecurit/ Council. 2. Ghen the CF#D e"tradites, surrenders, or otherwise transfers a person of the Philippines to a third countr/, the CF#D will not agree to the surrender or transfer of that person b/ the third countr/ to an/

international tribunal, unless such tribunal has been established b/ the FN #ecurit/ Council, absent the e"press consent of the 6overn ent of the Republic of the Philippines C6RPD. ). Ghen the C6RPD e"tradites, surrenders, or otherwise transfers a person of the CF#AD to a third countr/, the C6RPD will not agree to the surrender or transfer of that person b/ the third countr/ to an/ international tribunal, unless such tribunal has been established b/ the FN #ecurit/ Council, absent the e"press consent of the 6overn ent of the CF#D. %. !his Agree ent shall re ain in force until one /ear after the date on which one part/ notifies the other of its intent to ter inate the Agree ent. !he provisions of this Agree ent shall continue to appl/ with respect to an/ act occurring, or an/ allegation arising, before the effective date of ter ination. -n response to a .uer/ of then #olicitor 6eneral Alfredo B. Benipa/o on the status of the nonAsurrender agree ent, A bassador Ricciardone replied in his letter of <ctober $:, $;;2 that the e"change of diplo atic notes constituted a legall/ binding agree ent under international law? and that, under F# law, the said agree ent did not re.uire the advice and consent of the F# #enate.'; -n this proceeding, petitioner i putes grave abuse of discretion to respondents in concluding and ratif/ing the )greement and pra/s that it be struc0 down as unconstitutional, or at least declared as without force and effect. 9or their part, respondents .uestion petitionerRs standing to aintain a suit and counter that the )greement, being in the nature of an e"ecutive agree ent, does not re.uire #enate concurrence for its efficac/. And for reasons detailed in their co ent, respondents assert the constitutionalit/ of the )greement. T3e I007e0 -. G+E!+ER !+E CRPD PRE#-=EN! AN= !+E C=9AD #ECRE!ARH " " " 6RAEEBH ABF#E= !+E-R =-#CRE!-<N AM<FN!-N6 !< BAC, <R ELCE## <9 *FR-#=-C!-<N 9<R C<NCBF=-N6 !+E RP-US NON SURREN%ER $GREEMENT BH MEAN# <9 C6I/D !8O-L%0-LF ,)T6, 4F 5)H %LLF, G+EN !+E P+-B-PP-NE 6<EERNMEN! +A# ABREA=H #-6NE= !+E +O56 ST)TBT6 O8 T:6 M< N AB!+<F6+ !+-# -# PEN=-N6 RA!-9-CA!-<N BH !+E P+-B-PP-NE #ENA!E. A. Ghether b/ entering into the " " " $2ree)e"t Respondents gravel/ abused their discretion when the/ capriciousl/ abandoned, waived and relin.uished our onl/ legiti ate recourse through the +ome Statute of the M< N to prosecute and tr/ @persons@ as defined in the " " " $2ree)e"t, " " " or literall/ an/ conduit of A erican interests, who have co itted cri es of genocide, cri es

against hu anit/, war cri es and the cri e of aggression, thereb/ abdicating Philippine #overeignt/. B. Ghether after the signing and pending ratification of the +ome Statute of the M< N the CRPD President and the C=9AD #ecretar/ " " " are obliged b/ the principle of good faith to refrain fro doing all acts which would substantiall/ i pair the value of the underta0ing as signed. C. Ghether the " " " $2ree)e"t constitutes an act which defeats the object and purpose of the +ome Statute of the <nternational riminal ourt and contravenes the obligation of good faith inherent in the signature of the President affi"ed on the +ome Statute of the <nternational riminal ourt, and if so whether the " " " $2ree)e"t is void and unenforceable on this ground. =. Ghether the RP-US No"-S7rre"#er $2ree)e"t is void and unenforceable for grave abuse of discretion a ounting to lac0 or e"cess of jurisdiction in connection with its e"ecution. --. G+E!+ER !+E RP-US NON SURREN%ER $GREEMENT -# E<-= )! </<T<O 9<R C<N!RAC!-N6 <BB-6A!-<N# !+A! ARE E-!+ER -MM<RAB <R <!+ERG-#E A! EAR-ANCE G-!+ FN-EER#ABBH REC<6N-PE= PR-NC-PBE# <9 -N!ERNA!-<NAB BAG. ---. G+E!+ER !+E " " " $GREEMENT -# EAB-=, B-N=-N6 AN= E99EC!-EE G-!+<F! !+E C<NCFRRENCE BH A! BEA#! !G<A !+-R=# 4$I25 <9 ABB !+E MEMBER# <9 !+E #ENA!E " " ".'' !he foregoing issues a/ be su ari1ed into two> first, whether or not the )greement was contracted validl/, which resolves itself into the .uestion of whether or not respondents gravel/ abused their discretion in concluding it? and second, whether or not the )greement, which has not been sub itted to the #enate for concurrence, contravenes and under ines the Ro e #tatute and other treaties. But because respondents e"pectedl/ raised it, we shall first tac0le the issue of petitionerRs legal standing. T3e Co7rtL0 R7:1"2 !his petition is bereft of erit. Proce#7r!: I007e< Locus Stan i o6 Pet1t1o"er Petitioner, through its three part/Alist representatives, contends that the issue of the validit/ or invalidit/ of the )greement carries with it constitutional significance and is of para ount i portance that justifies its standing. Cited in this regard is what is usuall/ referred to as the e ergenc/ powers cases, '$ in which ordinar/ citi1ens and ta"pa/ers were accorded the personalit/ to .uestion the constitutionalit/ of e"ecutive issuances. Bocus standi is @a right of appearance in a court of justice on a given .uestion.@'2 #pecificall/, it is @a part/Rs personal and substantial interest in a case where he has sustained or will sustain direct injur/ as a result@ ') of the

act being challenged, and @calls for ore than just a generali1ed grievance.@'% !he ter @interest@ refers to aterial interest, as distinguished fro one that is erel/ incidental.'3 !he rationale for re.uiring a part/ who challenges the validit/ of a law or international agree ent to allege such a personal sta0e in the outco e of the controvers/ is @to assure the concrete adverseness which sharpens the presentation of issues upon which the court so largel/ depends for illu ination of difficult constitutional .uestions.@ '& Bocus standi, however, is erel/ a atter of procedure and it has been recogni1ed that, in so e cases, suits are not brought b/ parties who have been personall/ injured b/ the operation of a law or an/ other govern ent act, but b/ concerned citi1ens, ta"pa/ers, or voters who actuall/ sue in the public interest.': Conse.uentl/, in a catena of cases,'( this Court has invariabl/ adopted a liberal stance on locus standi. 6oing b/ the petition, petitionerRs representatives pursue the instant suit pri aril/ as concerned citi1ens raising issues of transcendental i portance, both for the Republic and the citi1enr/ as a whole. Ghen suing as a citi1en to .uestion the validit/ of a law or other govern ent action, a petitioner needs to eet certain specific re.uire ents before he can be clothed with standing. 8rancisco' (r. v. /agmamalasa"it na mga 5anananggol ng mga 5anggagawang #ilipino' <nc.$; e"pounded on this re.uire ent, thus> -n a long line of cases, however, concerned citi1ens, ta"pa/ers and legislators when specific re.uire ents have been et have been given standing b/ this Court. Ghen suing as a citi1en, the interest of the petitioner assailing the constitutionalit/ of a statute ust be direct and personal. +e ust be able to show, not onl/ that the law or an/ govern ent act is invalid, but also that he sustained or is in i inent danger of sustaining so e direct injur/ as a result of its enforce ent, and not erel/ that he suffers thereb/ in so e indefinite wa/. -t ust appear that the person co plaining has been or is about to be denied so e right or privilege to which he is lawfull/ entitled or that he is about to be subjected to so e burdens or penalties b/ reason of the statute or act co plained of. -n fine, when the proceeding involves the assertion of a public right, the ere fact that he is a citi1en satisfies the re.uire ent of personal interest.$' -n the case at bar, petitionerRs representatives have co plied with the .ualif/ing conditions or specific re.uire ents e"acted under the locus standi rule. As citi1ens, their interest in the subject atter of the petition is direct and personal. At the ver/ least, their assertions .uestioning the Agree ent are ade of a public right, i.e., to ascertain that the )greement did not go against established national policies, practices, and obligations bearing on the #tateRs obligation to the co unit/ of nations. At an/ event, the pri ordial i portance to 9ilipino citi1ens in general of the issue at hand i pels the Court to brush aside the procedural barrier posed b/ the traditional re.uire ent of locus standi, as we have done in a long line of earlier cases, notabl/ in the old but oftAcited e ergenc/ powers cases $$

and >ilosbayan v. Guingona' (r.$2 -n cases of transcendental i portance, we wrote again in !ayan v. Oamora,$) @!he Court a/ rela" the standing re.uire ents and allow a suit to prosper even where there is no direct injur/ to the part/ clai ing the right of judicial review.@ Moreover, bearing in ind what the Court said in Ta9ada v. )ngara, @that it will not shir0, digress fro or abandon its sacred dut/ and authorit/ to uphold the Constitution in atters that involve grave abuse of discretion brought before it in appropriate cases, co itted b/ an/ officer, agenc/, instru entalit/ or depart ent of the govern ent,@ $% we cannot but resolve head on the issues raised before us. -ndeed, where an action of an/ branch of govern ent is seriousl/ alleged to have infringed the Constitution or is done with grave abuse of discretion, it beco es not onl/ the right but in fact the dut/ of the judiciar/ to settle it. As in this petition, issues are precisel/ raised putting to the fore the propriet/ of the )greement pending the ratification of the Ro e #tatute. 8!:1#1t5 o6 t3e RP-US No"-S7rre"#er $2ree)e"t PetitionerRs initial challenge against the )greement relates to for , its threshold posture being that EIN B9<A;$:A;2 cannot be a valid ediu for concluding the )greement. PetitionersR contentionUUperhaps ta0en unaware of certain wellArecogni1ed international doctrines, practices, and jargonsUUis untenable. <ne of these is the doctrine of incorporation, as e"pressed in #ection $, Article -- of the Constitution, wherein the Philippines adopts the generall/ accepted principles of international law and international jurisprudence as part of the law of the land and adheres to the polic/ of peace, cooperation, and a it/ with all nations.$3 An e"change of notes falls @into the categor/ of interA govern ental agree ents,@$& which is an internationall/ accepted for of international agree ent. !he Fnited Nations !reat/ Collections 4!reat/ Reference 6uide5 defines the ter as follows> An @e"change of notes@ is a record of a routine agree ent, that has an/ si ilarities with the private law contract. !he agree ent consists of the e"change of two docu ents, each of the parties being in the possession of the one signed b/ the representative of the other. Fnder the usual procedure, the accepting #tate repeats the te"t of the offering #tate to record its assent. !he signatories of the letters a/ be govern ent Ministers, diplo ats or depart ental heads. !he techni.ue of e"change of notes is fre.uentl/ resorted to, either because of its speed/ procedure, or, so eti es, to avoid the process of legislative approval.$: -n another perspective, the ter s @e"change of notes@ and @e"ecutive agree ents@ have been used interchangeabl/, e"change of notes being considered a for of e"ecutive agree ent that beco es binding through e"ecutive action.$( <n the other hand, e"ecutive agree ents concluded b/ the President @so eti es ta0e the for of e"change of notes and at other ti es that of ore for al docu ents deno inated Qagree entsR or Qprotocols.R@2; As for er F# +igh Co issioner to the Philippines 9rancis B. #a/re observed in his wor0, The onstitutionality of Trade )greement )cts>

!he point where ordinar/ correspondence between this and other govern ents ends and agree ents U whether deno inated e"ecutive agree ents or e"change of notes or otherwise U begin, a/ so eti es be difficult of read/ ascertain ent.2' " " " -t is fairl/ clear fro the foregoing dis.uisition that EIN B9<A;$:A;2UUbe it viewed as the NonA#urrender Agree ent itself, or as an integral instru ent of acceptance thereof or as consent to be boundUUis a recogni1ed ode of concluding a legall/ binding international written contract a ong nations. Se"!te Co"c7rre"ce Not ReE71re# Article $ of the Eienna Convention on the Baw of !reaties defines a treat/ as @an international agree ent concluded between states in written for and governed b/ international law, whether e bodied in a single instru ent or in two or ore related instru ents and whatever its particular designation.@ 2$ -nternational agree ents a/ be in the for of 4'5 treaties that re.uire legislative concurrence after e"ecutive ratification? or 4$5 e"ecutive agree ents that are si ilar to treaties, e"cept that the/ do not re.uire legislative concurrence and are usuall/ less for al and deal with a narrower range of subject atters than treaties.22 Fnder international law, there is no difference between treaties and e"ecutive agree ents in ter s of their binding effects on the contracting states concerned,2) as long as the negotiating functionaries have re ained within their powers.2% Neither, on the do estic sphere, can one be held valid if it violates the Constitution.23 Authorities are, however, agreed that one is distinct fro another for accepted reasons apart fro the concurrenceA re.uire ent aspect.2& As has been observed b/ F# constitutional scholars, a treat/ has greater @dignit/@ than an e"ecutive agree ent, because its constitutional efficac/ is be/ond doubt, a treat/ having behind it the authorit/ of the President, the #enate, and the people? 2: a ratified treat/, unli0e an e"ecutive agree ent, ta0es precedence over an/ prior statutor/ enact ent. 2( Petitioner parla/s the notion that the )greement is of dubious validit/, parta0ing as it does of the nature of a treat/? hence, it ust be dul/ concurred in b/ the #enate. Petitioner ta0es a cue fro ommissioner of ustoms v. 6astern Sea Trading, in which the Court reproduced the following observations ade b/ F# legal scholars> @C-Dnternational agree ents involving political issues or changes of national polic/ and those involving international arrange ents of a per anent character usuall/ ta0e the for of treaties CwhileD those e bod/ing adjust ents of detail carr/ing out well established national policies and traditions and those involving arrange ents of a ore or less te porar/ nature ta0e the for of e"ecutive agree ents.@ ); Pressing its point, petitioner sub its that the subject of the )greement does not fall under an/ of the subjectAcategories that are enu erated in the 6astern Sea Trading case, and that a/ be covered b/ an e"ecutive agree ent, such as co ercialIconsular relations, ostAfavored nation rights, patent rights, trade ar0 and cop/right protection, postal and navigation arrange ents and settle ent of clai s.

-n addition, petitioner foists the applicabilit/ to the instant case of )dolfo v. 8< of Oambales and 5erchant,)' holding that an e"ecutive agree ent through an e"change of notes cannot be used to a end a treat/. Ge are not persuaded. !he categori1ation of subject atters that a/ be covered b/ international agree ents entioned in 6astern Sea Trading is not cast in stone. !here are no hard and fast rules on the propriet/ of entering, on a given subject, into a treat/ or an e"ecutive agree ent as an instru ent of international relations. !he pri ar/ consideration in the choice of the for of agree ent is the partiesR intent and desire to craft an international agree ent in the for the/ so wish to further their respective interests. Eeril/, the atter of for ta0es a bac0 seat when it co es to effectiveness and binding effect of the enforce ent of a treat/ or an e"ecutive agree ent, as the parties in either international agree ent each labor under the pacta sunt servanda)$ principle. As a/ be noted, al ost half a centur/ has elapsed since the Court rendered its decision in 6astern Sea Trading. #ince then, the conduct of foreign affairs has beco e ore co ple" and the do ain of international law wider, as to include such subjects as hu an rights, the environ ent, and the sea. -n fact, in the F# alone, the e"ecutive agree ents e"ecuted b/ its President fro '(:; to $;;; covered subjects such as defense, trade, scientific cooperation, aviation, ato ic energ/, environ ental cooperation, peace corps, ar s li itation, and nuclear safet/, a ong others. )2 #urel/, the enu eration in 6astern Sea Trading cannot circu scribe the option of each state on the atter of which the international agree ent for at would be convenient to serve its best interest. As 9rancis #a/re said in his wor0 referred to earlier> " " " -t would be useless to underta0e to discuss here the large variet/ of e"ecutive agree ents as such concluded fro ti e to ti e. +undreds of e"ecutive agree ents, other than those entered into under the tradeA agree ent act, have been negotiated with foreign govern ents. " " " !he/ cover such subjects as the inspection of vessels, navigation dues, inco e ta" on shipping profits, the ad ission of civil air craft, custo atters and co ercial relations generall/, international clai s, postal atters, the registration of trade ar0s and cop/rights, etc. " " " And lest it be overloo0ed, one t/pe of e"ecutive agree ent is a treat/A authori1ed)) or a treat/Ai ple enting e"ecutive agree ent,)% which necessaril/ would cover the sa e atters subject of the underl/ing treat/. But over and above the foregoing considerations is the fact thatUUsave for the situation and atters conte plated in #ec. $%, Art. LE--- of the Constitution)3UUwhen a treat/ is re.uired, the Constitution does not classif/ an/ subject, li0e that involving political issues, to be in the for of, and ratified as, a treat/. Ghat the Constitution erel/ prescribes is that treaties need the concurrence of the #enate b/ a vote defined therein to co plete the ratification process. PetitionerRs reliance on )dolfo)& is isplaced, said case being inapplicable owing to different factual ilieus. !here, the Court held that an e"ecutive

agree ent cannot be used to a end a dul/ ratified and e"isting treat/, i.e., the Bases !reat/. -ndeed, an e"ecutive agree ent that does not re.uire the concurrence of the #enate for its ratification a/ not be used to a end a treat/ that, under the Constitution, is the product of the ratif/ing acts of the E"ecutive and the #enate. !he presence of a treat/, purportedl/ being subject to a end ent b/ an e"ecutive agree ent, does not obtain under the pre ises. Considering the above discussion, the Court need not belabor at length the third ain issue raised, referring to the validit/ and effectivit/ of the )greement without the concurrence b/ at least twoAthirds of all the e bers of the #enate. !he Court has, in 6astern Sea Trading,): as reiterated in !ayan,)( given recognition to the obligator/ effect of e"ecutive agree ents without the concurrence of the #enate> " " " C!Dhe right of the E"ecutive to enter into binding agree ents without the necessit/ of subse.uent Congressional approval has been confir ed b/ long usage. 9ro the earliest da/s of our histor/, we have entered e"ecutive agree ents covering such subjects as co ercial and consular relations, ost favoredAnation rights, patent rights, trade ar0 and cop/right protection, postal and navigation arrange ents and the settle ent of clai s. !he validit/ of these has never been seriousl/ .uestioned b/ our courts. T3e $2ree)e"t Not 1" Co"tr!(e"t1o" o6 t3e Ro)e St!t7te -t is the petitionerRs ne"t contention that the )greement under ines the establish ent of the -CC and is null and void insofar as it undul/ restricts the -CCRs jurisdiction and infringes upon the effectivit/ of the Ro e #tatute. Petitioner posits that the )greement was constituted solel/ for the purpose of providing individuals or groups of individuals with i unit/ fro the jurisdiction of the -CC? and such grant of i unit/ through nonAsurrender agree ents allegedl/ does not legiti atel/ fall within the scope of Art. (: of the Ro e #tatute. -t concludes that state parties with nonAsurrender agree ents are prevented fro eeting their obligations under the Ro e #tatute, thereb/ constituting a breach of Arts. $&, %; :3,%' :(%$ and (;%2 thereof. Petitioner stresses that the overall object and purpose of the Ro e #tatute is to ensure that those responsible for the worst possible cri es are brought to justice in all cases, pri aril/ b/ states, but as a last resort, b/ the -CC? thus, an/ agree ent7li0e the nonAsurrender agree ent7that precludes the -CC fro e"ercising its co ple entar/ function of acting when a state is unable to or unwilling to do so, defeats the object and purpose of the Ro e #tatute. Petitioner would add that the President and the =9A #ecretar/, as representatives of a signator/ of the Ro e #tatute, are obliged b/ the i peratives of good faith to refrain fro perfor ing acts that substantiall/ devalue the purpose and object of the #tatute, as signed. Adding a nullif/ing ingredient to the )greement, according to petitioner, is the fact that it has an i oral purpose or is otherwise at variance with a priorl/ e"ecuted treat/. Contrar/ to petitionerRs pretense, the )greement does not contravene or under ine, nor does it differ fro , the Ro e #tatute. 9ar fro going against

each other, one co ple ents the other. As a atter of fact, the principle of co ple entarit/ underpins the creation of the -CC. As aptl/ pointed out b/ respondents and ad itted b/ petitioners, the jurisdiction of the -CC is to @be co ple entar/ to national cri inal jurisdictions Cof the signator/ statesD.@ %) Art. ' of the Ro e #tatute pertinentl/ provides> Article ' !he Court An -nternational Cri ininal Court 4@the Court@5 is hereb/ established. -t " " " 03!:: 3!(e t3e /o?er to e4erc10e 1t0 F7r10#1ct1o" over persons for the ost serious cri es of international concern, as referred to in this #tatute, and 03!:: be co)/:e)e"t!r5 to "!t1o"!: cr1)1"!: F7r10#1ct1o"0 . !he jurisdiction and functioning of the Court shall be governed b/ the provisions of this #tatute. 4E phasis ours.5 #ignificantl/, the si"th prea bular paragraph of the Ro e #tatute declares that @it is the dut/ of ever/ #tate to e"ercise its cri inal jurisdiction over those responsible for international cri es.@ !his provision indicates that pri ar/ jurisdiction over the soAcalled international cri es rests, at the first instance, with the state where the cri e was co itted? secondaril/, with the -CC in appropriate situations conte plated under Art. '&, par. ' %% of the Ro e #tatute. <f particular note is the application of the principle of ne bis in idem%3 under par. 2 of Art. $;, Ro e #tatute, which again underscores the pri ac/ of the jurisdiction of a state visAaAvis that of the -CC. As far as relevant, the provision states that @no person who has been tried b/ another court for conduct " " " Cconstituting cri es within its jurisdictionD shall be tried b/ the C-nternational Cri inalD Court with respect to the sa e conduct " " ".@ !he foregoing provisions of the Ro e #tatute, ta0en collectivel/, argue against the idea of jurisdictional conflict between the Philippines, as part/ to the nonAsurrender agree ent, and the -CC? or the idea of the Agree ent substantiall/ i pairing the value of the RPRs underta0ing under the Ro e #tatute. -gnoring for a while the fact that the RP signed the Ro e #tatute ahead of the )greement, it is abundantl/ clear to us that the Ro e #tatute e"pressl/ recogni1es the pri ar/ jurisdiction of states, li0e the RP, over serious cri es co itted within their respective borders, the co ple entar/ jurisdiction of the -CC co ing into pla/ onl/ when the signator/ states are unwilling or unable to prosecute. 6iven the above consideration, petitionerRs suggestionUUthat the RP, b/ entering into the )greement, violated its dut/ re.uired b/ the i peratives of good faith and breached its co it ent under the Eienna Convention %& to refrain fro perfor ing an/ act tending to i pair the value of a treat/, e.g., the Ro e #tatuteUUhas to be rejected outright. 9or nothing in the provisions of the )greement, in relation to the Ro e #tatute, tends to di inish the efficac/ of the #tatute, let alone defeats the purpose of the -CC. Best it be overloo0ed, the Ro e #tatute contains a proviso that enjoins the -CC fro see0ing the surrender of an erring person, should the process re.uire the re.uested state to perfor an act that would violate so e international

agree ent it has entered into. Ge refer to Art. (:4$5 of the Ro e #tatute, which reads> Article (: Cooperation with respect to waiver of i unit/ and consent to surrender """" $. !he Court a/ not proceed with a re.uest for surrender which would re.uire the re.uested #tate to act inconsistentl/ with its obligations under international agree ents pursuant to which the consent of a sending #tate is re.uired to surrender a person of that #tate to the Court, unless the Court can first obtain the cooperation of the sending #tate for the giving of consent for the surrender. Moreover, under international law, there is a considerable difference between a #tateAPart/ and a signator/ to a treat/. Fnder the Eienna Convention on the Baw of !reaties, a signator/ state is onl/ obliged to refrain fro acts which would defeat the object and purpose of a treat/? %: whereas a #tateA Part/, on the other hand, is legall/ obliged to follow all the provisions of a treat/ in good faith. -n the instant case, it bears stressing that the Philippines is onl/ a signator/ to the Ro e #tatute and not a #tateAPart/ for lac0 of ratification b/ the #enate. !hus, it is onl/ obliged to refrain fro acts which would defeat the object and purpose of the Ro e #tatute. An/ argu ent obliging the Philippines to follow an/ provision in the treat/ would be pre ature. As a result, petitionerRs argu ent that #tateAParties with nonAsurrender agree ents are prevented fro eeting their obligations under the Ro e #tatute, specificall/ Arts. $&, :3, :( and (;, ust fail. !hese articles are onl/ legall/ binding upon #tateAParties, not signatories. 9urther ore, a careful reading of said Art. (; would show that the Agree ent is not inco patible with the Ro e #tatute. #pecificall/, Art. (;4)5 provides that @CiDf the re.uesting #tate is a #tate not Part/ to this #tatute the re.uested #tate, if it is not under an international obligation to e"tradite the person to the re.uesting #tate, shall give priorit/ to the re.uest for surrender fro the Court. " " "@ -n appl/ing the provision, certain undisputed facts should be pointed out> first, the F# is neither a #tateAPart/ nor a signator/ to the Ro e #tatute? and second, there is an international agree ent between the F# and the Philippines regarding e"tradition or surrender of persons, i.e., the Agree ent. Clearl/, even assu ing that the Philippines is a #tateAPart/, the Ro e #tatute still recogni1es the pri ac/ of international agree ents entered into between #tates, even when one of the #tates is not a #tateA Part/ to the Ro e #tatute. So(ere12"t5 L1)1te# b5 I"ter"!t1o"!: $2ree)e"t0 Petitioner ne"t argues that the RP has, through the )greement, abdicated its sovereignt/ b/ bargaining awa/ the jurisdiction of the -CC to prosecute F# nationals, govern ent officialsIe plo/ees or ilitar/ personnel who co it serious cri es of international concerns in the Philippines. 9or ulating

petitionerRs argu ent a bit differentl/, the RP, b/ entering into the )greement, does thereb/ abdicate its sovereignt/, abdication being done b/ its waiving or abandoning its right to see0 recourse through the Ro e #tatute of the -CC for erring A ericans co itting international cri es in the countr/. Ge are not persuaded. As it were, the )greement is but a for of affir ance and confir ance of the PhilippinesR national cri inal jurisdiction. National cri inal jurisdiction being pri ar/, as e"plained above, it is alwa/s the responsibilit/ and within the prerogative of the RP either to prosecute cri inal offenses e.uall/ covered b/ the Ro e #tatute or to accede to the jurisdiction of the -CC. !hus, the Philippines a/ decide to tr/ @persons@ of the F#, as the ter is understood in the )greement, under our national cri inal justice s/ste . <r it a/ opt not to e"ercise its cri inal jurisdiction over its erring citi1ens or over F# @persons@ co itting high cri es in the countr/ and defer to the secondar/ cri inal jurisdiction of the -CC over the . As to @persons@ of the F# who the Philippines refuses to prosecute, the countr/ would, in effect, accord discretion to the F# to e"ercise either its national cri inal jurisdiction over the @person@ concerned or to give its consent to the referral of the atter to the -CC for trial. -n the sa e breath, the F# ust e"tend the sa e privilege to the Philippines with respect to @persons@ of the RP co itting high cri es within F# territorial jurisdiction. -n the conte"t of the Constitution, there can be no serious objection to the Philippines agreeing to underta0e the things set forth in the )greement. #urel/, one #tate can agree to waive jurisdiction7to the e"tent agreed upon 7to subjects of another #tate due to the recognition of the principle of e"traterritorial i unit/. Ghat the Court wrote in /icolas v. +omulo%(7a case involving the i ple entation of the cri inal jurisdiction provisions of the RPAF# Eisiting 9orces Agree ent7is apropos> Nothing in the Constitution prohibits such agree ents recogni1ing i unit/ fro jurisdiction or so e aspects of jurisdiction 4such as custod/5, in relation to longArecogni1ed subjects of such i unit/ li0e +eads of #tate, diplo ats and e bers of the ar ed forces contingents of a foreign #tate allowed to enter another #tateRs territor/. " " " !o be sure, the nullit/ of the subject nonAsurrender agree ent cannot be predicated on the postulate that so e of its provisions constitute a virtual abdication of its sovereignt/. Al ost ever/ ti e a state enters into an international agree ent, it voluntaril/ sheds off part of its sovereignt/. !he Constitution, as drafted, did not envision a reclusive Philippines isolated fro the rest of the world. -t even adheres, as earlier stated, to the polic/ of cooperation and a it/ with all nations.3; B/ their nature, treaties and international agree ents actuall/ have a li iting effect on the otherwise enco passing and absolute nature of sovereignt/. B/ their voluntar/ act, nations a/ decide to surrender or waive so e aspects of their state power or agree to li it the e"ercise of their otherwise e"clusive and absolute jurisdiction. !he usual underl/ing consideration in this partial surrender a/ be the greater benefits derived fro a pact or a reciprocal underta0ing of one contracting part/ to grant the sa e privileges or

i unities to the other. <n the rationale that the Philippines has adopted the generall/ accepted principles of international law as part of the law of the land, a portion of sovereignt/ a/ be waived without violating the Constitution.3' #uch waiver does not a ount to an unconstitutional di inution or deprivation of jurisdiction of Philippine courts. 3$ $2ree)e"t Not I))or!:RNot !t 8!r1!"ce ?1t3 Pr1"c1/:e0 o6 I"ter"!t1o"!: L!? Petitioner urges that the )greement be struc0 down as void ab initio for i posing i oral obligations andIor being at variance with allegedl/ universall/ recogni1ed principles of international law. !he i oral aspect proceeds fro the fact that the )greement, as petitioner would put it, @leaves cri inals i une fro responsibilit/ for uni aginable atrocities that deepl/ shoc0 the conscience of hu anit/? " " " it precludes our countr/ fro delivering an A erican cri inal to the C-CCD " " ".@ 32 !he above argu ent is a 0ind of rec/cling of petitionerRs earlier position, which, as alread/ discussed, contends that the RP, b/ entering into the )greement, virtuall/ abdicated its sovereignt/ and in the process under ined its treat/ obligations under the Ro e #tatute, contrar/ to international law principles.3) !he Court is not persuaded. #uffice it to state in this regard that the nonA surrender agree ent, as aptl/ described b/ the #olicitor 6eneral, @is an assertion b/ the Philippines of its desire to tr/ and punish cri es under its national law. " " " !he agree ent is a recognition of the pri ac/ and co petence of the countr/Rs judiciar/ to tr/ offenses under its national cri inal laws and dispense justice fairl/ and judiciousl/.@ Petitioner, we believe, labors under the erroneous i pression that the Agree ent would allow 9ilipinos and A ericans co itting high cri es of international concern to escape cri inal trial and punish ent. !his is anifestl/ incorrect. Persons who a/ have co itted acts penali1ed under the Ro e #tatute can be prosecuted and punished in the Philippines or in the F#? or with the consent of the RP or the F#, before the -CC, assu ing, for the nonce, that all the for alities necessar/ to bind both countries to the Ro e #tatute have been et. 9or perspective, what the )greement conte"tuall/ prohibits is the surrender b/ either part/ of individuals to international tribunals, li0e the -CC, without the consent of the other part/, which a/ desire to prosecute the cri e under its e"isting laws. Gith the view we ta0e of things, there is nothing i oral or violative of international law concepts in the act of the Philippines of assu ing cri inal jurisdiction pursuant to the nonAsurrender agree ent over an offense considered cri inal b/ both Philippine laws and the Ro e #tatute. No Gr!(e $b70e o6 %10cret1o" PetitionerRs final point revolves around the necessit/ of the #enateRs concurrence in the Agree ent. And without specificall/ sa/ing so, petitioner would argue that the nonAsurrender agree ent was e"ecuted b/ the President, thru the =9A #ecretar/, in grave abuse of discretion.

!he Court need not delve on and belabor the first portion of the above posture of petitioner, the sa e having been discussed at length earlier on. As to the second portion, Ge wish to state that petitioner virtuall/ faults the President for perfor ing, through respondents, a tas0 conferred the President b/ the Constitution7the power to enter into international agree ents. B/ constitutional fiat and b/ the nature of his or her office, the President, as head of state and govern ent, is the sole organ and authorit/ in the e"ternal affairs of the countr/.3% !he Constitution vests in the President the power to enter into international agree ents, subject, in appropriate cases, to the re.uired concurrence votes of the #enate. But as earlier indicated, e"ecutive agree ents a/ be validl/ entered into without such concurrence. As the President wields vast powers and influence, her conduct in the e"ternal affairs of the nation is, as Ba/an would put it, @e"ecutive altogether.@ !he right of the President to enter into or ratif/ binding e"ecutive agree ents has been confir ed b/ long practice.33 -n thus agreeing to conclude the )greement thru EIN B9<A;$:A;2, then President 6loria MacapagalAArro/o, represented b/ the #ecretar/ of 9oreign Affairs, acted within the scope of the authorit/ and discretion vested in her b/ the Constitution. At the end of the da/, the PresidentUUb/ ratif/ing, thru her deputies, the nonAsurrender agree entUUdid nothing ore than discharge a constitutional dut/ and e"ercise a prerogative that pertains to her office. Ghile the issue of ratification of the Ro e #tatute is not deter inative of the other issues raised herein, it a/ perhaps be pertinent to re ind all and sundr/ that about the ti e this petition was interposed, such issue of ratification was laid to rest in #imentel' (r. v. Office of the 6=ecutive Secretary.3& As the Court e phasi1ed in said case, the power to ratif/ a treat/, the #tatute in that instance, rests with the President, subject to the concurrence of the #enate, whose role relative to the ratification of a treat/ is li ited erel/ to concurring in or withholding the ratification. And conco itant with this treat/A a0ing power of the President is his or her prerogative to refuse to sub it a treat/ to the #enate? or having secured the latterRs consent to the ratification of the treat/, refuse to ratif/ it. 3: !his prerogative, the Court hastened to add, is the PresidentRs alone and cannot be encroached upon via a writ of anda us. Barring intervening events, then, the Philippines re ains to be just a signator/ to the Ro e #tatute. Fnder Art. '$% 3( thereof, the final acts re.uired to co plete the treat/ process and, thus, bring it into force, insofar as the Philippines is concerned, have /et to be done. $2ree)e"t Nee# Not ,e 1" t3e or) o6 ! Tre!t5 <n =ece ber '', $;;(, then President Arro/o signed into law Republic Act No. 4RA5 (:%', otherwise 0nown as the @Philippine Act on Cri es Against -nternational +u anitarian Baw, 6enocide, and <ther Cri es Against +u anit/.@ #ec. '& of RA (:%', particularl/ the second paragraph thereof, provides> Sect1o" 17. (urisdiction. U " " " "

-n the interest of justice, the relevant Philippine authorities may dispense with the investigation or prosecution of a cri e punishable under this Act if another court or international tribunal is alread/ conducting the investigation or underta0ing the prosecution of such cri e. -nstead, the authorities may surrender or e"tradite suspected or accused persons in the Philippines to the appropriate international court, if an/, or to another #tate pursuant to the applicable e"tradition laws and treaties. 4E phasis supplied.5 A view is advanced that the )greement a ends e"isting unicipal laws on the #tateRs obligation in relation to grave cri es against the law of nations, i.e., genocide, cri es against hu anit/ and war cri es. Rel/ing on the aboveA.uoted statutor/ proviso, the view posits that the Philippine is re.uired to surrender to the proper international tribunal those persons accused of the grave cri es defined under RA (:%', if it does not e"ercise its pri ar/ jurisdiction to prosecute the . !he basic pre ise rests on the interpretation that if it does not decide to prosecute a foreign national for violations of RA (:%', the Philippines has onl/ two options, to wit> 4'5 surrender the accused to the proper international tribunal? or 4$5 surrender the accused to another #tate if such surrender is @pursuant to the applicable e"tradition laws and treaties.@ But the Philippines a/ e"ercise these options onl/ in cases where @another court or international tribunal is alread/ conducting the investigation or underta0ing the prosecution of such cri e?@ otherwise, the Philippines ust prosecute the cri e before its own courts pursuant to RA (:%'. Posing the situation of a F# national under prosecution b/ an international tribunal for an/ cri e under RA (:%', the Philippines has the option to surrender such F# national to the international tribunal if it decides not to prosecute such F# national here. !he view asserts that this option of the Philippines under #ec. '& of RA (:%' is not subject to the consent of the F#, and an/ derogation of #ec. '& of RA (:%', such as re.uiring the consent of the F# before the Philippines can e"ercise such option, re.uires an a endator/ law. -n line with this scenario, the view strongl/ argues that the )greement prevents the Philippines7without the consent of the F#7fro surrendering to an/ international tribunal F# nationals accused of cri es covered b/ RA (:%', and, thus, in effect a ends #ec. '& of RA (:%'. Conse.uentl/, the view is strongl/ i pressed that the )greement cannot be e bodied in a si ple e"ecutive agree ent in the for of an e"change of notes but ust be i ple ented through an e"tradition law or a treat/ with the corresponding for alities. Moreover, consonant with the foregoing view, citing #ec. $, Art. -- of the Constitution, where the Philippines adopts, as a national polic/, the @generall/ accepted principles of international law as part of the law of the land,@ the Court is further i pressed to perceive the Ro e #tatute as declarator/ of custo ar/ international law. -n other words, the #tatute e bodies principles of law which constitute custo ar/ international law or custo and for which reason it assu es the status of an enforceable do estic law in the conte"t of the aforecited constitutional provision. As a

corollar/, it is argued that an/ derogation fro the Ro e #tatute principles cannot be underta0en via a ere e"ecutive agree ent, which, as an e"clusive act of the e"ecutive branch, can onl/ i ple ent, but cannot a end or repeal, an e"isting law. !he )greement, so the argu ent goes, see0s to frustrate the objects of the principles of law or alters custo ar/ rules e bodied in the Ro e #tatute. Prescinding fro the foregoing pre ises, the view thus advanced considers the )greement inefficacious, unless it is e bodied in a treat/ dul/ ratified with the concurrence of the #enate, the theor/ being that a #enateA ratified treat/ parta0es of the nature of a unicipal law that can a end or supersede another law, in this instance #ec. '& of RA (:%' and the status of the Ro e #tatute as constitutive of enforceable do estic law under #ec. $, Art. -- of the Constitution. Ge are unable to lend cogenc/ to the view thus ta0en. 9or one, we find that the )greement does not a end or is repugnant to RA (:%'. 9or another, the view does not clearl/ state what precise principles of law, if an/, the )greement alters. And for a third, it does not de onstrate in the concrete how the )greement see0s to frustrate the objectives of the principles of law subsu ed in the Ro e #tatute. 9ar fro it, as earlier e"plained, the )greement does not under ine the Ro e #tatute as the for er erel/ reinforces the pri ac/ of the national jurisdiction of the F# and the Philippines in prosecuting cri inal offenses co itted b/ their respective citi1ens and ilitar/ personnel, a ong others. !he jurisdiction of the -CC pursuant to the Ro e #tatute over high cri es indicated thereat is clearl/ and un ista0abl/ co ple entar/ to the national cri inal jurisdiction of the signator/ states. Moreover, RA (:%' clearl/> 4'5 defines and establishes the cri es against international hu anitarian law, genocide and other cri es against hu anit/?&; 4$5 provides penal sanctions and cri inal liabilit/ for their co ission?&' and 425 establishes special courts for the prosecution of these cri es and for the #tate to e"ercise pri ar/ cri inal jurisdiction. &$ Nowhere in RA (:%' is there a proviso that goes against the tenor of the )greement. !he view a0es uch of the above .uoted second par. of #ec. '&, RA (:%' as reE71r1"2 the Philippine #tate to surrender to the proper international tribunal those persons accused of cri es sanctioned under said law if it does not e"ercise its pri ar/ jurisdiction to prosecute such persons. !his view is not entirel/ correct, for the above .uoted proviso clearl/ provides #10cret1o" to the Philippine #tate on whether to surrender or not a person accused of the cri es under RA (:%'. !he statutor/ proviso uses the word @may.@ -t is settled doctrine in statutor/ construction that the word @ a/@ denotes discretion, and cannot be construed as having andator/ effect. &2 !hus, the pertinent second pararagraph of #ec. '&, RA (:%' is si pl/ per issive on the part of the Philippine #tate.4avvphi4 Besides, even granting that the surrender of a person is andatoril/ re.uired when the Philippines does not e"ercise its pri ar/ jurisdiction in cases where @another court or international tribunal is alread/ conducting the investigation

or underta0ing the prosecution of such cri e,@ still, the tenor of the )greement is not repugnant to #ec. '& of RA (:%'. #aid legal proviso aptl/ provides that the surrender a/ be ade @to another #tate pursuant to the applicable e"tradition laws and treaties.@ !he Agree ent can alread/ be considered a treat/ following this CourtRs decision in Nicolas v. Ro ulo &) which cited Geinberger v. Rossi.&% -n Nicolas, Ge held that @an e"ecutive agree ent is a Qtreat/R within the eaning of that word in international law and constitutes enforceable do estic law visAWAvis the Fnited #tates.@ &3 Bi0ewise, the Philippines and the F# alread/ have an e"isting e"tradition treat/, i.e., RPAF# E"tradition !reat/, which was e"ecuted on Nove ber '2, '((). !he pertinent Philippine law, on the other hand, is Presidential =ecree No. ';3(, issued on *anuar/ '2, '(&&. !hus, the )greement, in conjunction with the RPAF# E"tradition !reat/, would neither violate nor run counter to #ec. '& of RA (:%'. !he viewRs reliance on #uplico v. Neda&& is si ilarl/ i proper. -n that case, several petitions were filed .uestioning the power of the President to enter into foreign loan agree ents. +owever, before the petitions could be resolved b/ the Court, the <ffice of the #olicitor 6eneral filed a Manifestation and Motion averring that the Philippine 6overn ent decided not to continue with the P!E National Broadband Networ0 Project, thus rendering the petition oot. -n resolving the case, the Court too0 judicial notice of the act of the e"ecutive depart ent of the Philippines 4the President5 and found the petition to be indeed oot. Accordingl/, it dis issed the petitions. -n his dissent in the above entioned case, *ustice Carpio discussed the legal i plications of an e"ecutive agree ent. +e stated that @an e"ecutive agree ent has the force and effect of law " " " CitD cannot a end or repeal prior laws.@&: +ence, this argu ent finds no application in this case seeing as RA (:%' is a subse.uent law, not a prior one. Notabl/, this argu ent cannot be found in the ratio decidendi of the case, but onl/ in the dissenting opinion. !he view further contends that the RPAF# E"tradition !reat/ is inapplicable to RA (:%' for the reason that under par. ', Art. $ of the RPAF# E"tradition !reat/, @CaDn offense shall be an e"traditable offense if it is punishable under the laws in both Contracting Parties " " ",@ &( and thereb/ concluding that while the Philippines has cri inali1ed under RA (:%' the acts defined in the Ro e #tatute as war cri es, genocide and other cri es against hu anit/, there is no si ilar legislation in the F#. -t is further argued that, citing F.#. v. Coolidge, in the F#, a person cannot be tried in the federal courts for an international cri e unless Congress adopts a law defining and punishing the offense. !his view ust fail. <n the contrar/, the F# has alread/ enacted legislation punishing the high cri es entioned earlier. -n fact, as earl/ as <ctober $;;3, the F# enacted a law cri inali1ing war cri es. #ection $))', Chapter '':, Part -, !itle ': of the Fnited #tates Code Annotated 4F#CA5 provides for the cri inal offense of @war cri es@ which is si ilar to the war cri es found in both the Ro e #tatute and RA (:%', thus>

4a5 <ffense U Ghoever, whether inside or outside the Fnited #tates, 4%5 i poses easures intended to prevent births within the co its a war cri e, in an/ of the circu stances described in group? or subsection 4b5, shall be fined under this title or i prisoned for life or 435 transfers b/ force children of the group to another group? an/ ter of /ears, or both, and if death results to the victi , shall shall be punished as provided in subsection 4b5.:' also be subject to the penalt/ of death. Arguing further, another view has been advanced that the current F# laws do 4b5 Circu stances U !he circu stances referred to in subsection 4a5 not cover ever/ cri e listed within the jurisdiction of the -CC and that there is are that the person co itting such war cri e or the victi of such a gap between the definitions of the different cri es under the F# laws war cri e is a e ber of the Ar ed 9orces of the Fnited #tates or a versus the Ro e #tatute. !he view used a report written b/ Eictoria ,. +olt national of the Fnited #tates 4as defined in #ection ';' of the and Elisabeth G. =allas, entitled @<n !rial> !he F# Militar/ and the igration and Nationalit/ Act5. -nternational Cri inal Court,@ as its basis. 4c5 =efinition U As used in this #ection the ter @war cri e@ eans At the outset, it should be pointed out that the report used a/ not have an/ an/ conduct U weight or value under international law. Article 2: of the #tatute of the 4'5 =efined as a grave breach in an/ of the international -nternational Court of *ustice 4-C*5 lists the sources of international law, as conventions signed at 6eneva '$ August '()(, or an/ follows> 4'5 international conventions, whether general or particular, protocol to such convention to which the Fnited #tates is a establishing rules e"pressl/ recogni1ed b/ the contesting states? 4$5 part/? international custo , as evidence of a general practice accepted as law? 425 4$5 Prohibited b/ Article $2, $%, $& or $: of the Anne" to the the general principles of law recogni1ed b/ civili1ed nations? and 4)5 subject +ague Convention -E, Respecting the Baws and Custo s of to the provisions of Article %(, judicial decisions and the teachings of the Gar on Band, signed ': <ctober '(;&? ost highl/ .ualified publicists of the various nations, as subsidiar/ eans for the deter ination of rules of law. !he report does not fall under an/ of the 425 Ghich constitutes a grave breach of co on Article 2 foregoing enu erated sources. -t cannot even be considered as the 4as defined in subsection CdD5 when co itted in the conte"t @teachings of highl/ .ualified publicists.@ A highl/ .ualified publicist is a of and in association with an ar ed conflict not of an scholar of public international law and the ter usuall/ refers to legal international character? or scholars or @acade ic writers.@:$ -t has not been shown that the authors:2 of 4)5 <f a person who, in relation to an ar ed conflict and this report are highl/ .ualified publicists. contrar/ to the provisions of the Protocol on Prohibitions or Assu ing arguendo that the report has weight, still, the perceived gaps in the Restrictions on the Fse of Mines, Boob/A!raps and <ther definitions of the cri es are none"istent. !o highlight, the table below shows =evices as a ended at 6eneva on 2 Ma/ '((3 4Protocol -the definitions of genocide and war cri es under the Ro e #tatute visAWAvis as a ended on 2 Ma/ '((35, when the Fnited #tates is a the definitions under F# laws> part/ to such Protocol, willfull/ 0ills or causes serious injur/ to civilians.:;4avvphi4 Ro e #tatute F# Baw #i ilarl/, in =ece ber $;;(, the F# adopted a law that cri inali1ed Article 3 Z';('. 6enocide genocide, to wit> 6enocide 4a5 Basic <ffense U Ghoever, whether Z';('. 6enocide in the ti e of peace or in ti e of war 4a5 Basic <ffense U Ghoever, whether in the ti e of peace or in ti 9or e the purpose of this #tatute, @genocide@ eans an/ of the following acts co itted with and with specific intent to destro/, in of war and with specific intent to destro/, in whole or in substantial intent to destro/, in whole or in part, a national, whole or in substantial part, a national part, a national, ethnic, racial or religious group as suchU ethnical, racial or religious group, as such> ethnic, racial or religious group as 4'5 0ills e bers of that group? suchU 4a5 ,illing e bers of the group? 4$5 causes serious bodil/ injur/ to e bers of that group? 4'5 0ills e bers of that group 4b5 Causing serious bodil/ or ental 425 causes the per anent i pair ent of the ental faculties har to e bers of the group? 4$5 causes serious bodil/ injur of e bers of the group through drugs, torture, or si ilar to e bers of that group? 4c5 =eliberatel/ inflicting on the group techni.ues? conditions of life calculated to bring 425 causes the per anent 4)5 subjects the group to conditions of life that are intended about its ph/sical destruction in whole i pair ent of the ental to cause the ph/sical destruction of the group in whole or in or in part? faculties of e bers of the part? group through drugs, torture, o 4d5 - posing easures intended to

prevent births within the group? 4e5 9orcibl/ transferring children of the group to another group.

si ilar techni.ues? 4)5 subjects the group to conditions of life that are intended to cause the ph/sical destruction of the group in whole or in part? 4%5 i poses easures intended to prevent births within the group? or 435 transfers b/ force children of the group to another group? shall be punished as provided in subsection 4b5.

Article : Gar Cri es $. 9or the purpose of this #tatute, @war cri es@ eans> 4a5 6rave breaches of the 6eneva Conventions of '$ August '()(, na el/, an/ of the following acts against persons or propert/ protected under the provisions of the relevant 6eneva Convention> " " ":) 4b5 <ther serious violations of the laws and custo s applicable in international ar ed conflict, within the established fra ewor0 of international law, na el/, an/ of the following acts> """" 4c5 -n the case of an ar ed conflict not of an international character, serious violations of article 2 co on to the four 6eneva Conventions of '$ August '()(, na el/, an/ of the following acts co itted against persons ta0ing no active part in the hostilities, including e bers of ar ed forces who have laid down their

4d5 =efinition U As used in this #ection the ter @war cri e@ eans an/ conduct U 4'5 =efined as a grave breach in an/ of the international conventions signed at 6eneva '$ August '()(, or an/ protocol to such convention to which Evidentl/, the gaps pointed out as to the definition of the cri es are not the Fnited #tates is a part/? present. -n fact, the report itself stated as uch, to wit> 4$5 Prohibited b/ Article $2, $%, $& or $: 9ew believed there were wide differences between the cri es under the of the Anne" to the +ague Conventionjurisdiction of the Court and cri es within the Fnifor Code of Militar/ -E, Respecting the Baws and Custo s*ustice that would e"pose F# personnel to the Court. #ince F# ilitar/ of Gar on Band, signed ': <ctober law/ers were instru ental in drafting the ele ents of cri es outlined in the '(;&? Ro e #tatute, the/ ensured that ost of the cri es were consistent with 425 Ghich constitutes a grave breach of those outlined in the FCM* and gave strength to co ple entarit/ for the F#. co on Article 2 4as defined in # all areas of potential gaps between the FCM* and the Ro e #tatute, subsection CdD:%5 when co itted in the ilitar/ e"perts argued, could be addressed through e"isting ilitar/ laws. :& " conte"t of and in association with an " " ar ed conflict not of an international !he report went on further to sa/ that @CaDccording to those involved, the character? or ele ents of cri es laid out in the Ro e #tatute have been part of F# ilitar/ 4)5 <f a person who, in relation to an doctrine for decades.@:: !hus, the argu ent proffered cannot stand. ar ed conflict and contrar/ to the Nonetheless, despite the lac0 of actual do estic legislation, the F# notabl/ provisions of the Protocol on follows the doctrine of incorporation. As earl/ as '(;;, the estee ed *ustice Prohibitions or Restrictions on the Fse 6ra/ in !he Pa.uete +abana:( case alread/ held international law as part of of Mines, Boob/A!raps and <ther the law of the F#, to wit> =evices as a ended at 6eneva on 2 -nternational law is part of our law, and ust be ascertained and Ma/ '((3 4Protocol -- as a ended on 2 ad inistered b/ the courts of justice of appropriate jurisdiction as often as Ma/ '((35, when the Fnited #tates is a .uestions of right depending upon it are dul/ presented for their part/ to such Protocol, willfull/ 0ills or deter ination. 9or this purpose, where there is no treat/ and no controlling :3 causes serious injur/ to civilians. e"ecutive or legislative act or judicial decision, resort ust be had to the custo s and usages of civili1ed nations, and, as evidence of these, to the wor0s of jurists and co entators who b/ /ears of labor, research, and

ar s and those placed hors de co bat b/ sic0ness, wounds, detention or an/ other cause> """" 4d5 Paragraph $ 4c5 applies to ar ed conflicts not of an international character and thus does not appl/ to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a si ilar nature. 4e5 <ther serious violations of the laws and custo s applicable in ar ed conflicts not of an international character, within the established fra ewor0 of international law, na el/, an/ of the following acts> " " ".

e"perience have ade the selves peculiarl/ well ac.uainted with the subjects of which the/ treat. #uch wor0s are resorted to b/ judicial tribunals, not for the speculations of their authors concerning what the law ought to be, but for the trustworth/ evidence of what the law reall/ is. (; 4E phasis supplied.5 !hus, a person can be tried in the F# for an international cri e despite the lac0 of do estic legislation. !he cited ruling in F.#. v. Coolidge, (' which in turn is based on the holding in F.#. v. +udson,($ onl/ applies to co on law and not to the law of nations or international law. (2 -ndeed, the Court in F.#. v. +udson onl/ considered the .uestion, @whether the Circuit Courts of the Fnited #tates can e"ercise a co on law jurisdiction in cri inal cases.@ () #tated otherwise, there is no co on law cri e in the F# but this is considerabl/ different fro international law. !he F# doubtless recogni1es international law as part of the law of the land, necessaril/ including international cri es, even without an/ local statute. (% -n fact, /ears later, F# courts would appl/ international law as a source of cri inal liabilit/ despite the lac0 of a local statute cri inali1ing it as such. #o it was that in E" Parte Kuirin(3 the F# #upre e Court noted that @CfDro the ver/ beginning of its histor/ this Court has recogni1ed and applied the law of war as including that part of the law of nations which prescribes, for the conduct of war, the status, rights and duties of ene / nations as well as of ene / individuals.@(& -t went on further to e"plain that Congress had not underta0en the tas0 of codif/ing the specific offenses covered in the law of war, thus> -t is no objection that Congress in providing for the trial of such offenses has not itself underta0en to codif/ that branch of international law or to ar0 its precise boundaries, or to enu erate or define b/ statute all the acts which that law conde ns. An Act of Congress punishing Qthe cri e of pirac/ as defined b/ the law of nations is an appropriate e"ercise of its constitutional authorit/, Art. -, s :, cl. ';, Qto define and punishR the offense since it has adopted b/ reference the sufficientl/ precise definition of international law. " " " #i ilarl/ b/ the reference in the '%th Article of Gar to Qoffenders or offenses that " " " b/ the law of war a/ be triable b/ such ilitar/ co issions. Congress has incorporated b/ reference, as within the jurisdiction of ilitar/ co issions, all offenses which are defined as such b/ the law of war " " ", and which a/ constitutionall/ be included within that jurisdiction.(: " " " 4E phasis supplied.5 !his rule finds an even stronger hold in the case of cri es against hu anit/. -t has been held that genocide, war cri es and cri es against hu anit/ have attained the status of custo ar/ international law. #o e even go so far as to state that these cri es have attained the status of jus cogens. (( Custo ar/ international law or international custo is a source of international law as stated in the #tatute of the -C*. ';; -t is defined as the @general and consistent practice of states recogni1ed and followed b/ the fro a sense of legal obligation.@';' -n order to establish the custo ar/ status

of a particular nor , two ele ents ust concur> #tate practice, the objective ele ent? and opinio juris sive necessitates, the subjective ele ent. ';$ #tate practice refers to the continuous repetition of the sa e or si ilar 0ind of acts or nor s b/ #tates.';2 -t is de onstrated upon the e"istence of the following ele ents> 4'5 generalit/? 4$5 unifor it/ and consistenc/? and 425 duration.';) Ghile, opinio juris, the ps/chological ele ent, re.uires that the state practice or nor @be carried out in such a wa/, as to be evidence of a belief that this practice is rendered obligator/ b/ the e"istence of a rule of law re.uiring it.@';% @!he ter Qjus cogensR eans the Qco pelling law.R@ ';3 Corollar/, @a jus cogens nor holds the highest hierarchical position a ong all other custo ar/ nor s and principles.@';& As a result, jus cogens nor s are dee ed @pere ptor/ and nonAderogable.@';: Ghen applied to international cri es, @jus cogens cri es have been dee ed so funda ental to the e"istence of a just international legal order that states cannot derogate fro the , even b/ agree ent.@';( !hese jus cogens cri es relate to the principle of universal jurisdiction, i.e., @an/ state a/ e"ercise jurisdiction over an individual who co its certain heinous and widel/ conde ned offenses, even when no other recogni1ed basis for jurisdiction e"ists.@''; @!he rationale behind this principle is that the cri e co itted is so egregious that it is considered to be co itted against all e bers of the international co unit/@''' and thus granting ever/ #tate jurisdiction over the cri e.''$ !herefore, even with the current lac0 of do estic legislation on the part of the F#, it still has both the doctrine of incorporation and universal jurisdiction to tr/ these cri es. Conse.uentl/, no atter how hard one insists, the -CC, as an international tribunal, found in the Ro e #tatute is not declarator/ of custo ar/ international law. !he first ele ent of custo ar/ international law, i.e., @established, widespread, and consistent practice on the part of #tates,@ ''2 does not, under the pre ises, appear to be obtaining as reflected in this si ple realit/> As of <ctober '$, $;';, onl/ '')'') #tates have ratified the Ro e #tatute, subse.uent to its co ing into force eight 4:5 /ears earlier, or on *ul/ ', $;;$. !he fact that '') #tates out of a total of '()''% countries in the world, or roughl/ %:.&3N, have ratified the Ro e #tatute casts doubt on whether or not the perceived principles contained in the #tatute have attained the status of custo ar/ law and should be dee ed as obligator/ international law. !he nu bers even tend to argue against the urgenc/ of establishing international cri inal courts envisioned in the Ro e #tatute. Best it be overloo0ed, the Philippines, judging b/ the action or inaction of its top officials, does not even feel bound b/ the Ro e #tatute. +es ipsa loquitur. More than eight 4:5 /ears have elapsed since the Philippine representative signed the #tatute, but the treat/ has not been trans itted to the #enate for the ratification process. And this brings us to what 9r. Bernas, #.*. aptl/ said respecting the application of the concurring ele ents, thus>

Custo or custo ar/ international law eans @a general and consistent practice of states followed b/ the fro a sense of legal obligation C opinio jurisD " " ".@ !his state ent contains the two basic ele ents of custo > the aterial factor, that is how the states behave, and the ps/chological factor or subjective factor, that is, wh/ the/ behave the wa/ the/ do. """" !he initial factor for deter ining the e"istence of custo is t3e !ct7!: be3!(1or o6 0t!te0. !his includes several ele ents> duration, consistenc/, and generalit/ of the practice of states. !he re.uired duration can be either short or long. " " " """" =uration therefore is not the ost i portant ele ent. More i portant is the consistenc/ and the generalit/ of the practice. " " " """" O"ce t3e e410te"ce o6 0t!te /r!ct1ce 3!0 bee" e0t!b:103e#, it beco es necessar/ to #eter)1"e ?35 0t!te0 be3!(e t3e ?!5 t3e5 #o. =o states behave the wa/ the/ do because the/ consider it obligator/ to behave thus or do the/ do it onl/ as a atter of courtes/M Opinio juris, or the belief that a certain for of behavior is obligator/, is what a0es practice an international rule. Githout it, practice is not law.''3 4E phasis added.5 Evidentl/, there is, as /et, no overwhel ing consensus, let alone prevalent practice, a ong the different countries in the world that the prosecution of internationall/ recogni1ed cri es of genocide, etc. should be handled b/ a particular international cri inal court. Absent the widespreadIconsistentApracticeAofAstates factor, the second or the ps/chological ele ent ust be dee ed nonAe"istent, for an in.uir/ on wh/ states behave the wa/ the/ do presupposes, in the first place, that the/ are actuall/ behaving, as a atter of settled and consistent practice, in a certain anner. !his i plicitl/ re.uires belief that the practice in .uestion is rendered obligator/ b/ the e"istence of a rule of law re.uiring it. ''& Bi0e the first ele ent, the second ele ent has li0ewise not been shown to be present. 9urther, the Ro e #tatute itself rejects the concept of universal jurisdiction over the cri es enu erated therein as evidenced b/ it re.uiring #tate consent.'': Even further, the Ro e #tatute specificall/ and une.uivocall/ re.uires that> @!his #tatute is subject to ratification, acceptance or approval b/ signator/ #tates.@''( !hese clearl/ negate the argu ent that such has alread/ attained custo ar/ status. More i portantl/, an act of the e"ecutive branch with a foreign govern ent ust be afforded great respect. !he power to enter into e"ecutive agree ents has long been recogni1ed to be lodged with the President. As Ge held in Neri v. #enate Co ittee on Accountabilit/ of Public <fficers and -nvestigations, @CtDhe power to enter into an e"ecutive agree ent is in essence an e"ecutive power. !his authorit/ of the President to enter into e"ecutive agree ents without the concurrence of the Begislature has traditionall/ been recogni1ed in Philippine jurisprudence.@ '$; !he rationale

behind this principle is the inviolable doctrine of separation of powers a ong the legislative, e"ecutive and judicial branches of the govern ent. !hus, absent an/ clear contravention of the law, courts should e"ercise ut ost caution in declaring an/ e"ecutive agree ent invalid. -n light of the above consideration, the position or view that the challenged RPAF# NonA#urrender Agree ent ought to be in the for of a treat/, to be effective, has to be rejected. G+ERE9<RE, the petition for certiorari, anda us and prohibition is hereb/ =-#M-##E= for lac0 of erit. No costs. #< <R=ERE=. %ISSENTING OPINION C$RPIO, J.: - dissent. !he RPAF# NonA#urrender Agree ent 4Agree ent5 violates e"isting unicipal laws on the Philippine #tateRs obligation to prosecute persons responsible for an/ of the international cri es of genocide, war cri es and other cri es against hu anit/. Being a ere e"ecutive agree ent that is indisputabl/ inferior to unicipal law, the Agree ent cannot prevail over a prior or subse.uent unicipal law inconsistent with it. 9irst, under e"isting unicipal laws arising fro the incorporation doctrine in #ection $, Article -- of the Philippine Constitution, ' the #tate is re.uired to surrender to the proper international tribunal persons accused of grave international cri es, if the #tate itself does not e"ercise its pri ar/ jurisdiction to prosecute such persons. #econd, and ore i portantl/, Republic Act No. (:%' 4RA (:%'5 or the #hilippine )ct on rimes )gainst <nternational :umanitarian *aw' Genocide' and Other rimes )gainst :umanity re.uires that the RPAF# NonA#urrender Agree ent, which is in derogation of the dut/ of the Philippines to prosecute those accused of grave international cri es, should be ratified as a treat/ b/ the #enate before the Agree ent can ta0e effect. #ection $ of RA (:%' adopts as a #tate polic/ the following> #ection $. ,eclaration of #rinciples and State #olicies. A 4a5 " " " """ 4e5 !he ost serious cri es of concern to the international co unit/ as a whole ust not go unpunished and their effective prosecution ust be ensured b/ ta0ing easures at the national level, in order to put an end to i punit/ for the perpetrators of these cri es and thus contribute to the prevention of such cri es, 1t be1"2 t3e #7t5 o6 e(er5 St!te to e4erc10e 1t0 cr1)1"!: F7r10#1ct1o" o(er t3o0e re0/o"01b:e 6or 1"ter"!t1o"!: cr1)e0. 4E phasis supplied5 !o i ple ent this #tate polic/, #ection '& of RA (:%' provides> #ection '&. (urisdiction. A !he #tate shall e"ercise jurisdiction over persons, whether ilitar/ or civilian, suspected or accused of a cri e defined and

penali1ed in this Act, regardless of where the cri e is co itted, provided, an/ one of the following conditions is et> 4a5 !he accused is a 9ilipino citi1en? 4b5 T3e !cc70e#, re2!r#:e00 o6 c1t1He"031/ or re01#e"ce, 10 /re0e"t 1" t3e P31:1//1"e0? or 4c5 !he accused has co itted the said cri e against a 9ilipino citi1en. -n the interest of justice, the relevant Philippine authorities a/ dispense with the investigation or prosecution of a cri e punishable under this Act 16 !"ot3er co7rt or 1"ter"!t1o"!: tr1b7"!: 10 alrea y co"#7ct1"2 t3e 1"(e0t12!t1o" or 7"#ert!;1"2 t3e /ro0ec7t1o" o6 07c3 cr1)e. I"0te!#, t3e !7t3or1t1e0 )!5 07rre"#er or e4tr!#1te 070/ecte# or !cc70e# /er0o"0 1" t3e P31:1//1"e0 to t3e !//ro/r1!te 1"ter"!t1o"!: co7rt, 16 !"5, or to !"ot3er St!te pursuant to the applica)le e*tra ition la$s an treaties . 4Boldfacing, italici1ation and underscoring supplied5 #ection $4e5 and #ection '& i pose on the Philippines the @dut/@ to prosecute a person present in the Philippines, @regardless of citi1enship or residence@ of such person, who is accused of co itting a cri e under RA (:%' @regardless of where the cri e is co itted.@ !he Philippines is e"pressl/ andated b/ law to prosecute the accused before its own courts. -f the Philippines decides not to prosecute such accused, the Philippines has onl/ two options. 9irst, it a/ surrender the accused to the @appropriate international court@ such as the -nternational Cri inal Court 4-CC5. <r second, it a/ surrender the accused to another #tate if such 07rre"#er 10 Ipursuant to the applica)le e*tra ition la$s an treaties .@ Fnder the second option, the Philippines ust have an applicable e"tradition law with the other #tate, or both the Philippines and the other #tate ust be signatories to an applicable treat/. #uch applicable e"tradition law or treat/ ust not frustrate the Philippine #tate polic/, which e bodies a generall/ accepted principle of international law, that it is @the dut/ of ever/ #tate to e"ercise its cri inal jurisdiction over those responsible for international cri es.@ -n an/ case, the Philippines can e"ercise either option only i/ @!"ot3er co7rt or 1"ter"!t1o"!: tr1b7"!: 10 alrea y co"#7ct1"2 t3e 1"(e0t12!t1o" or 7"#ert!;1"2 t3e /ro0ec7t1o" o6 07c3 cr1)e.@ -n short, the Philippines should surrender the accused to another #tate onl/ if there is assurance or guarantee b/ the other #tate that the accused will be prosecuted under the other #tateJs cri inal justice s/ste . !his assurance or guarantee springs fro the principle of international law that it is @ t3e #7t5 o6 e(er5 St!te to e4erc10e 1t0 cr1)1"!: F7r10#1ct1o" o(er t3o0e re0/o"01b:e 6or 1"ter"!t1o"!: cr1)e0.@ T3ere 10 !t /re0e"t "o Iapplica)le- e4tr!#1t1o" :!? or tre!t5 !::o?1"2 t3e 07rre"#er to t3e U"1te# St!te0 o6 U.S. "!t1o"!:0 !cc70e# o6 cr1)e0 7"#er R$ 9&'1, 0/ec161c!::5, Cr1)e0 !2!1"0t I"ter"!t1o"!: H7)!"1t!r1!" L!? or -!r Cr1)e0,$ Ge"oc1#e,2 !"# Ot3er Cr1)e0 !2!1"0t H7)!"1t5. )

!he RPAF# E"tradition !reat/ cannot be considered an applicable e"tradition law or treat/. Paragraph ', Article $ of the RPAF# E"tradition !reat/ provides> @An offense shall be an e"traditable offense if it is /7"103!b:e 7"#er t3e :!?0 1" bot3 Co"tr!ct1"2 P!rt1e0 """.@% !he rule in the Fnited #tates is that a person cannot be tried in the federal courts for an international cri e unless the F.#. Congress adopts a law defining and punishing the offense.3 -n 5edellin v. Te=as,& the F.#. #upre e Court held that @?31:e tre!t1e0 )!5 co)/r10e 1"ter"!t1o"!: co))1t)e"t0 ... t3e5 !re "ot #o)e0t1c :!? 7":e00 Co"2re00 3!0 e1t3er e"!cte# 1)/:e)e"t1"2 0t!t7te0 or t3e tre!t5 1t0e:6 co"(e50 !" 1"te"t1o" t3!t 1t be 0e:6-e4ec7t1"2L !"# 10 r!t161e# o" t3e0e ter)0.@ !he F.#. Congress has not enacted legislation to i ple ent the Geneva onventions of 41P1 $Geneva onventions&: which is one of the foundations of the principles of -nternational +u anitarian Baw. Ghile the F.#. #enate has ratified the 6eneva Conventions,( the ratification was not intended to a0e the 6eneva Conventions selfAe"ecuting under F.#. do estic law. '; !he Fnited #tates has not ratified the +ome Statute of <nternational riminal ourt 4Ro e #tatute5. Ghile the Philippines has also not ratified the Ro e #tatute, it has cri inali1ed under RA (:%' all the acts defined in the Ro e #tatute as 6enocide, Gar Cri es and <ther Cri es against +u anit/. T3ere 10 "o 01)1:!r :e210:!t1o" 1" t3e U"1te# St!te0 . Not all cri es punishable under the Ro e #tatute are considered cri es under F.#. laws. A report'' based partl/ on interviews with representatives of the F.#. delegation in Ro e stated> @!he do estic laws of the Fnited #tates """ do not cover every cri e listed within the jurisdiction of the C-nternational Cri inalD Court.@'$ !he report further e"plained the 2!/ between the definitions of 6enocide, Gar Cri es and <ther Cri es against +u anit/, under the Ro e #tatute and under F.#. do estic laws, in this wise> '2 < Statute in ontrast to the BS ode -n conversations with both proponents and opponents of the Court, an/ suggested that while the F# has objected to the CourtRs potential authorit/ over F# service e bers, what reall/ lies behind that concern is the recognition that those ost vulnerable to the scrutin/ of the Court are notabl/ higher up in the chain of co and> the civilian and senior ilitar/ leadership. Begal e"perts, both in the ilitar/ and outside, pointed out that there were ore li0el/ to be @gaps@ between the F# Code and the Ro e #tatute than gaps with the Fnifor Code of Militar/ *ustice. After retire ent, ilitar/ personnel are not covered b/ the FCM*, but instead would be held accountable to the F# Code, in particular !itle '; and !itle ':. 9or so e retired ilitar/ personnel, this was an area of so e concern. T3e0e 1"#1(1#7!:0 o66ere# t3!t 6or)er :e!#er0, 1" /!rt1c7:!r t3e IHe"r5 @1001"2er0 o6 t3e ?or:#,I !re )o0t !t r10;. I"#ee#, t3e5 0tre00e# t3!t !0 t3e )!1" co"cer" 6or t3e US< t3!t t3e Co7rt ?1:: t!;e 7/ c!0e0 o6 6or)er 0e"1or c1(1:1!" :e!#er031/ !"# )1:1t!r5 o661c1!:0 ?3o, !ct1"2 7"#er t3e :!?0 o6 ?!r, !re "o :o"2er co(ere# b5 t3e UCM. !"# t3ere6ore,

/ote"t1!::5 o/e" to 2!/0 1" 6e#er!: :!? ?3ere t3e US !b1:1t5 to !00ert co)/:e)e"t!r1t5 10 "eb7:o70. T3e 6e!r 10 t3!t t3e5 co7:# be 07bFect to ICC /ro0ec7t1o" 6or !ct1o"0 t3e5 #1# /re(1o70:5 1" 7"16or). O"e :e2!: 0c3o:!r /o1"te# o7t t3!t 0e(er!: cr1)e0 #e61"e# ?1t31" t3e Ro)e St!t7te #o "ot !//e!r o" t3e US boo;0 Ae.2., !/!rt3e1#, /er0ec7t1o", e"0:!(e)e"t, !"# e4ter)1"!t1o".B -31:e 01)1:!r :!?0 e410t, 1t ?o7:# be ?1t31" t3e co)/ete"c5 o6 t3e C31e6 Pro0ec7tor to !r27e be6ore t3e Pre-Tr1!: C3!)ber') t3!t 1" 6!ct, t3e US #oe0 "ot 3!(e :!?0 to /ro0ec7te 6or t3e cr1)e0 t3!t 3!(e bee" co))1tte#. A si ilar situation arose in '((3, when Congress an Galter *ones 4RANC5 deter ined through a series of investigations that civilians serving overseas under a contract with the F# ilitar/ were not covered under the FCM*. -t had been assu ed that the F# Code gave F# pri ac/ over civilians serving in a ilitar/ capacit/, but instead it was discovered that if a civilian serving with a ilitar/ unit deplo/ed overseas is accused of war cri e, the foreign state whose territor/ the cri es were co itted in would in fact have pri ar/ jurisdiction to tr/ the case. !herefore, Rep. *ones authored the @Gar Cri es Act of '((3,@ which was designed to cover civilian serving in a ilitar/ capacit/. '% To e"07re t3!t "o 2!/0 e410t bet?ee" t3e US Co#e, t3e UCM., !"# t3e cr1)e0 ?1t31" t3e Co7rtL0 F7r10#1ct1o", ! 01)1:!r e66ort co7:# be )!#e. T310 /roce00 ?o7:# "ee# to 1#e"t165 61r0t ?3ere cr1)e0 e410t 1" t3e St!t7te t3!t !re "ot co(ere# 1" 0o)e co"te4t t3ro723 T1t:e 1* !"# T1t:e 1& o6 t3e US Co#e !"# t3e" #r!6t :e210:!t1o" Q )o#e:e# !6ter t3e -!r Cr1)e0 $ct Q #e012"e# to 61:: 2!/0. T310 ?o7:# /rotect 6or)er US 0er(1ce )e)ber0 !"# 0e"1or c1(1:1!" :e!#er031/ 6ro) ICC /ro0ec7t1o" . !here is ver/ little discussion toda/ about the gaps in law. #cholars are aware of the potential gaps and see this area as one where the F# ight be able to ove forward to clarif/ legal a biguities that a/ e"ist, and to a0e corrections to F# laws. !his e"ercise would strengthen the F# assertion of co ple entarit/. 4E phasis supplied5 !he sa e report added, @At Ro e, the F.#. was concerned with the definition of cri es, especiall/ the definition of war cri es and, to lesser e"tent, the definition of cri es against hu anit/ """?@ '3 that the cri e of genocide was acceptable to the F.#. delegation? and that throughout the negotiations, the F.#. position was to see0 one hundred percent assurance that F.#. service e bers would onl/ be held accountable to F.#. s/ste s of justice.'& Gith the e"isting gap between the cri es of 6enocide, Gar Cri es and <ther Cri es against +u anit/ under the Ro e #tatute A now all cri inali1ed in the Philippines under RA (:%' on the one hand, and F.#. do estic laws on the other, these cri es cannot be considered I/7"103!b:e 7"#er t3e :!?0 1" bot3 Co"tr!ct1"2 P!rt1e0I as re.uired under the RPAF# E"tradition !reat/, and hence, cannot be considered as e"traditable offenses under the treat/. !he cri es considered as 6enocide, Gar Cri es, and <ther Cri es against +u anit/ under the Ro e #tatute and RA (:%' a/ not necessaril/ be considered as such cri es under Fnited #tates laws.

Conse.uentl/, the RPAF# E"tradition !reat/ does not .ualif/ as an I!//:1c!b:eIe4tr!#1t1o" :!? or tre!t5 under #ection '& of RA (:%', which allows the Philippines to surrender to another state a person accused of 6enocide, Gar Cri es and <ther Cri es against +u anit/. I" 03ort, t3e P31:1//1"e0 c!""ot 07rre"#er to t3e U"1te# St!te0 ! U.S. "!t1o"!: !cc70e# o6 !"5 o6 t3e0e 2r!(e 1"ter"!t1o"!: cr1)e0, ?3e" t3e U"1te# St!te0 #oe0 "ot 3!(e t3e 0!)e or 01)1:!r :!?0 to /ro0ec7te 07c3 cr1)e0. Neither is the RPAF# NonA#urrender Agree ent an @applicable@ e"tradition law or treat/ as re.uired in #ection '& of RA (:%'. !hus, the Agree ent cannot be i ple ented b/ the Philippine 6overn ent in the absence of an applicable e"tradition law or treat/ allowing the surrender to the Fnited #tates of F.#. nationals accused of cri es under RA (:%'. -f a F.#. national is under investigation or prosecution b/ an international tribunal for an/ cri e punishable under RA (:%', the Philippines has the option to surrender such F.#. national to the international tribunal if the Philippines decides not to prosecute such F.#. national in the Philippines. !his option of the Philippine 6overn ent under #ection '& of RA (:%' is not subject to the consent of the Fnited #tates. $"5 #ero2!t1o" 6ro) Sect1o" 17, 07c3 !0 reE71r1"2 t3e co"0e"t o6 t3e U"1te# St!te0 be6ore t3e P31:1//1"e0 c!" e4erc10e 07c3 o/t1o", reE71re0 !" !)e"#)e"t to R$ 9&'1 b5 ?!5 o6 e1t3er !" e4tr!#1t1o" :!? or tre!t5. S7c3 !" !)e"#)e"t c!""ot be e)bo#1e# 1" ! )ere e4ec7t1(e !2ree)e"t or !" e4c3!"2e o6 "ote0 07c3 !0 t3e !00!1:e# $2ree)e"t. #ection '& of RA (:%' has clearl/ raised to a 0t!t7tor5 :e(e: the surrender to another #tate of persons accused of an/ cri e under RA (:%'. An/ agree ent in derogation of #ection '&, such as the surrender to the F.#. of a F.#. national accused of an act punishable under RA (:%' but not punishable under F.#. do estic laws, or the nonAsurrender to an international tribunal, without F.#. consent, of a F.#. national accused of a cri e under RA (:%', cannot be ade in a ere e"ecutive agree ent or an e"change of notes. S7c3 07rre"#er or "o"-07rre"#er, be1"2 co"tr!r5 to Sect1o" 17 o6 R$ 9&'1, c!" o":5 be )!#e 1" !" !)e"#!tor5 :!?, 07c3 !0 ! 07b0eE7e"t e4tr!#1t1o" :!? or tre!t5. Moreover, #ection '& of RA (:%' allows the surrender to another #tate onl/ @16 !"ot3er co7rt 444 10 alrea y co"#7ct1"2 t3e 1"(e0t12!t1o" or 7"#ert!;1"2 t3e /ro0ec7t1o" o6 07c3 cr1)e.@ !his eans that only i/ the other #tate is alread/ investigating or prosecuting the cri e can the Philippines surrender the accused to such other #tate. !he RPAF# NonA #urrender Agree ent does not re.uire that the Fnited #tates ust alread/ be investigating or prosecuting the cri e before the Philippines can surrender the accused. -n fact, a F.#. national accused of a cri e under RA (:%' a/ not even be chargeable of such cri e in the F.#. because the sa e act a/ not be a cri e under F.#. do estic laws. -n such a case, the F.#. cannot even conduct an investigation of the accused, uch less prosecute hi for the sa e act. !hus, the RPAF# NonA#urrender Agree ent

violates the condition in #ection '& of RA (:%' that the other #tate ust alrea y be investigating or prosecuting the accused for the cri e penali1ed under RA (:%' before the Philippines can surrender such accused. !o repeat, the assailed Agree ent prevents the Philippines, ?1t3o7t t3e co"0e"t o6 t3e U"1te# St!te0, fro surrendering to an/ international tribunal F.#. nationals accused of cri es under RA (:%'. #uch consent is not re.uired under RA (:%'which andates that an/ nonAsurrender without the consent of another #tate ust be e bodied in an e"tradition law or treat/. !he assailed Agree ent also dispenses with the condition in #ection '& that before the Philippines can surrender the accused to the Fnited #tates, the accused ust alread/ be under investigation or prosecution b/ the Fnited #tates for the cri e penali1ed under RA (:%', a condition that a/ be i possible to fulfill because not all cri es under RA (:%' are recogni1ed as cri es in the Fnited #tates. T370, t3e $2ree)e"t (1o:!te0 Sect1o" 17 o6 R$ 9&'1 !0 ?e:: !0 e410t1"2 )7"1c1/!: :!?0 !r101"2 6ro) t3e 1"cor/or!t1o" #octr1"e o6 t3e Co"0t1t7t1o". !he Agree ent cannot be e bodied in a si ple e"ecutive agree ent or an e"change of notes, but ust be i ple ented through an e"tradition law or a treat/ ratified with the concurrence of at least twoAthirds of all the e bers of the #enate. -n international law, there is no difference between treaties and e"ecutive agree ents on their binding effect upon part/ states, as long as the negotiating functionaries have re ained within their powers. ': +owever, while the differences in no enclature and for of various t/pes of international agree ents are i aterial in international law, the/ have significance in the unicipal law of the parties.'( An e"a ple is the re.uire ent of concurrence of the legislative bod/ with respect to treaties, whereas with respect to e"ecutive agree ents, the head of #tate a/ act alone to enforce such agree ents.$; !he '(:& Philippine Constitution provides> @No treat/ or international agree ent shall be valid and effective unless concurred in b/ at least twoA thirds of all the Me bers of the #enate.@$' !his e"press constitutional re.uire ent a0es treaties different fro e"ecutive agree ents, which re.uire no legislative concurrence. An e"ecutive agree ent can onl/ i ple ent, and not a end or repeal, an e"isting law. As - have discussed in Suplico v. /ational 6conomic and ,evelopment )uthority,$$ although an e"ecutive agree ent has the force and effect of law, just li0e i ple enting rules of e"ecutive agencies, it cannot a end or repeal prior laws, but ust co pl/ with the laws it i ple ents. $2 An e"ecutive agree ent, being an e"clusive act of the E"ecutive branch, does not have the status of a unicipal law. $) Acting alone, the E"ecutive has no lawA a0ing power? and while it has ruleA a0ing power, such power ust be e"ercised consistent with the law it see0s to i ple ent. $% T370, !" e4ec7t1(e !2ree)e"t c!""ot !)e"# or re/e!: ! /r1or :!?, b7t )70t co)/:5 ?1t3 St!te /o:1c5 e)bo#1e# 1" !" e410t1"2 )7"1c1/!: :!?.$3 T310 !:0o )e!"0 t3!t !" e4ec7t1(e !2ree)e"t, ?31c3 !t t3e t1)e o6 1t0 e4ec7t1o" co)/:1e0 ?1t3 t3e" e410t1"2 :!?, 10 #ee)e# !)e"#e# or

re/e!:e# b5 ! 07b0eE7e"t :!? 1"co"010te"t ?1t3 07c3 e4ec7t1(e !2ree)e"t. U"#er "o c1rc7)0t!"ce c!" ! )ere e4ec7t1(e !2ree)e"t /re(!1: o(er ! /r1or or 07b0eE7e"t :!? 1"co"010te"t ?1t3 07c3 e4ec7t1(e !2ree)e"t. !his is clear fro Article & of the Civil Code, which provides> Article &. " " " Ad inistrative or e4ec7t1(e !ct0, orders and regulations 03!:: be (!:1# o":5 ?3e" t3e5 !re "ot co"tr!r5 to t3e :!?0 or the Constitution. 4E phasis supplied5 An e*ecutive agreement li.e the assaile Agreement is an e*ecutive act o/ the Presi ent. Fnder Article & of the Civil Code, an e"ecutive agree ent contrar/ to a prior law is void. #i ilarl/, an e"ecutive agree ent contrar/ to a subse.uent law beco es void upon the effectivit/ of such subse.uent law. #ince Article & of the Civil Code provides that @e"ecutive acts shall be valid onl/ when the/ are not contrar/ to the laws,@ once an e"ecutive act beco es contrar/ to law such e"ecutive act beco es void even if it was valid prior to the enact ent of such subse.uent law. A treat/, on the other hand, ac.uires the status of a unicipal law upon ratification b/ the #enate. +ence, a treat/ a/ a end or repeal a prior law and vice-versa.$& Fnli0e an e"ecutive agree ent, a treat/ a/ change state polic/ e bodied in a prior and e"isting law. -n the Fnited #tates, fro where we adopted the concept of e"ecutive agree ents, the prevailing view is that e4ec7t1(e !2ree)e"t0 c!""ot !:ter e410t1"2 :!? b7t )70t co"6or) to !:: 0t!t7tor5 reE71re)e"t0 .$: !he F.#. #tate =epart ent ade a distinction between treaties and e"ecutive agree ents in this anner> " " " it a/ be desirable to point out here the wellArecogni1ed distinction between an e"ecutive agree ent and a treat/. -n brief, it is that t3e 6or)er c!""ot !:ter t3e e410t1"2 :!? !"# )70t co"6or) to !:: 0t!t7tor5 e"!ct)e"t0, whereas a treat/, if ratified b/ and with the advice and consent of twoAthirds of the #enate, as re.uired b/ the Constitution, itself beco es the supre e law of the land and ta0es precedence over an/ prior statutor/ enact ents.$( 4E phasis supplied5 !he Agree ent involved in this case is an e"ecutive agree ent entered into via an e"change of notes.2; !he parties to the Agree ent 4RP and F#5 agree not to surrender each otherRs nationals2' to an/ international tribunal or to a third part/ for the purpose of surrendering to an/ international tribunal, ?1t3o7t t3e ot3erL0 co"0e"t, pursuant to the pronounced objective of @protectCingD Philippine and A erican personnel fro frivolous and harass ent suits that ight be brought against the in international tribunals.@2$ T3e $2ree)e"t !)e"#0 e410t1"2 P31:1//1"e St!te /o:1c5 !0 e)bo#1e# 1" )7"1c1/!: :!? !r101"2 6ro) 2e"er!::5 !cce/te# /r1"c1/:e0 o6 1"ter"!t1o"!: :!? ?31c3 6or) /!rt o6 t3e :!? o6 t3e :!"#. !he Agree ent also runs counter to RA (:%' which cri inali1ed wholesale all acts defined as international cri es in the Ro e #tatute, an international

treat/ which the Philippines has signed but has still to ratif/. 22 !he Agree ent frustrates the objectives of generall/ accepted principles of international law e bodied in the Ro e #tatute. !hus, considering its nature, the Agree ent should be e bodied not in an e"ecutive agree ent, but in a treat/ which, under the Philippine Constitution, shall be valid and effective onl/ if concurred in b/ at least twoAthirds of all the e bers of the #enate. !he '(:& Philippine Constitution states as one of its principles, as follows> !he Philippines " " " adopts the generall/ accepted principles of international law as part of the law of the land and adheres to the polic/ of peace, e.ualit/, justice, freedo , cooperation, and a it/ with all nations. 2) !his constitutional provision enunciates the doctrine of incorporation which andates that the Philippines is bound b/ generall/ accepted principles of international law which auto aticall/ for part of Philippine law b/ operation of the Constitution.2% -n >uroda v. (alandoni,23 this Court held that this constitutional provision @is not confined to the recognition of rules and principles of international law as contained in treaties to which our govern ent a/ have been or shall be a signator/.@ !he pertinent portion of ,uroda states> It c!""ot be #e"1e# t3!t t3e r7:e0 !"# re27:!t1o" o6 T3e H!27e !"# Ge"e(! Co"(e"t1o"0 6or) /!rt o6 !"# !re ?3o::5 b!0e# o" t3e 2e"er!::5 !cce/te# /r1"c1/:e0 o6 1"ter"!t1o"!: :!?. 4 4 4 S7c3 r7:e !"# /r1"c1/:e0, t3ere6ore, 6or) /!rt o6 t3e :!? o6 o7r "!t1o" e(e" 16 t3e P31:1//1"e0 ?!0 "ot ! 012"!tor5 to t3e co"(e"t1o"0 e)bo#51"2 t3e), for our Constitution has been deliberatel/ general and e"tensive in its scope and is not confined to the recognition of rules and principles of international law as contained in treaties to which our govern ent a/ have been or shall be a signator/. 2& 4E phasis supplied5 +ence, generall/ accepted principles of international law for part of Philippine laws even if the/ do not derive fro treat/ obligations of the Philippines.2: 6enerall/ accepted principles of international law, as referred to in the Constitution, include custo ar/ international law. 2( Custo ar/ international law is one of the pri ar/ sources of international law under Article 2: of the #tatute of the -nternational Court of *ustice.); Custo ar/ international law consists of acts which, b/ repetition of #tates of si ilar international acts for a nu ber of /ears, occur out of a sense of obligation, and ta0en b/ a significant nu ber of #tates.)' -t is based on custo , which is a clear and continuous habit of doing certain actions, which has grown under the aegis of the conviction that these actions are, according to international law, obligator/ or right.)$ !hus, custo ar/ international law re.uires the concurrence of two ele ents> @C'D the established, wideAspread, and consistent practice on the part of the #tates? and C$D a ps/chological ele ent 0nown as opinion juris sive necessitatis 4opinion as to law or necessit/5. - plicit in the latter ele ent is a belief that the practice in .uestion is rendered obligator/ b/ the e"istence of a rule of law re.uiring it.@ )2

#o e custo ar/ international laws have been affir ed and e bodied in treaties and conventions. A treat/ constitutes evidence of custo ar/ law if it is declarator/ of custo ar/ law, or if it is intended to codif/ custo ar/ law. I" 07c3 ! c!0e, e(e" ! St!te "ot /!rt5 to t3e tre!t5 ?o7:# be bo7"# t3ereb5.)) $ tre!t5 ?31c3 10 )ere:5 ! 6or)!: e4/re001o" o6 c70to)!r5 1"ter"!t1o"!: :!? 10 e"6orce!b:e o" !:: St!te0 bec!70e o6 t3e1r )e)ber031/ 1" t3e 6!)1:5 o6 "!t1o"0.)% 9or instance, the Eienna Convention on Consular Relations is binding even on nonApart/ #tates because the provisions of the Convention are ostl/ codified rules of custo ar/ international law binding on all #tates even before their codification into the Eienna Convention.)3 Another e"a ple is the Baw of the #ea, which consists ostl/ of codified rules of custo ar/ international law, which have been universall/ observed even before the Baw of the #ea was ratified b/ participating #tates.)& Corollaril/, treaties a/ beco e the basis of custo ar/ international law. Ghile #tates which are not parties to treaties or international agree ents are not bound thereb/, such agree ents, if widel/ accepted for /ears b/ an/ #tates, a/ transfor into custo ar/ international laws, in which case, the/ bind even nonAsignator/ #tates.): -n +epublic v. Sandiganbayan,)( this Court held that even in the absence of the Constitution,%; generall/ accepted principles of international law re ain part of the laws of the Philippines. =uring the interregnu , or the period after the actual ta0eover of power b/ the revolutionar/ govern ent in the Philippines, following the cessation of resistance b/ lo/alist forces up to $) March '(:3 4i ediatel/ before the adoption of the Provisional Constitution5, the '(&2 Philippine Constitution was abrogated and there was no unicipal law higher than the directives and orders of the revolutionar/ govern ent. Nevertheless, this Court ruled that even during this period, the provisions of the -nternational Covenant on Civil and Political Rights and the Fniversal =eclaration of +u an Rights, to which the Philippines is a signator/, re ained in effect in the countr/. !he Covenant and =eclaration are based on generall/ accepted principles of international law which are applicable in the Philippines even in the absence of a constitution, as during the interregnu . Conse.uentl/, appl/ing the provisions of the Covenant and the =eclaration, the 9ilipino people continued to enjo/ al ost the sa e rights found in the Bill of Rights despite the abrogation of the '(&2 Constitution. !he Ro e #tatute of the -nternational Cri inal Court was adopted b/ '$; e bers of the Fnited Nations 4FN5 on '& *ul/ '((:.%' -t entered into force on ' *ul/ $;;$, after 3; #tates beca e part/ to the #tatute through ratification or accession.%$ !he adoption of the Ro e #tatute fulfilled the international co unit/Rs longAti e drea of creating a per anent international tribunal to tr/ serious international cri es. !he Ro e #tatute, which established an international cri inal court and for all/ declared genocide, war cri es and other cri es against hu anit/ as serious international cri es, co#161e# 2e"er!::5 !cce/te# /r1"c1/:e0 o6 1"ter"!t1o"!: :!?, 1"c:7#1"2 c70to)!r5 1"ter"!t1o"!: :!?0 . !he principles

of law e bodied in the Ro e #tatute were alread/ generall/ accepted principles of international law even prior to the adoption of the #tatute. #ubse.uentl/, the Ro e #tatute itself has been widel/ accepted and, as of Nove ber $;';, it has been ratified b/ '') states, ''2 of which are e bers of the FN.%2 !here are at present '($ e bers of the FN. #ince ''2 e ber states have alread/ ratified the Ro e #tatute, ore than a ajorit/ of all the FN e bers have now adopted the Ro e #tatute as part of their unicipal laws. !hus, the Ro e #tatute itself is generall/ accepted b/ the co unit/ of nations as constituting a bod/ of generall/ accepted principles of international law. T3e /r1"c1/:e0 o6 :!? 6o7"# 1" t3e Ro)e St!t7te co"0t1t7te 2e"er!::5 !cce/te# /r1"c1/:e0 o6 1"ter"!t1o"!: :!? e"6orce!b:e 1" t3e P31:1//1"e0 7"#er t3e P31:1//1"e Co"0t1t7t1o" . !he principles of law e bodied in the Ro e #tatute are binding on the Philippines even if the #tatute has /et to be ratified b/ the Philippine #enate. -n short, the principles of law enunciated in the Ro e #tatute are now part of Philippine do estic law pursuant to #ection $, Article -- of the '(:& Philippine Constitution. Article :(4'5 of the Ro e #tatute provides as follows> #urrender of persons to the Court '. !he Court a/ trans it a re.uest for the arrest and surrender of a person, together with the aterial supporting the re.uest outlined in article (', to an/ #tate on the territor/ of which that person a/ be found and shall re.uest the cooperation of that #tate in the arrest and surrender of such a person. #tates Parties shall, in accordance with the provisions of this Part and the procedure under their national law, co pl/ with re.uests for arrest and surrender. """" It 10 ! /r1"c1/:e o6 1"ter"!t1o"!: :!? t3!t ! /er0o" !cc70e# o6 2e"oc1#e, ?!r cr1)e0 !"# ot3er cr1)e0 !2!1"0t 37)!"1t5 03!:: be /ro0ec7te# b5 t3e 1"ter"!t1o"!: co))7"1t5. $ St!te ?3ere 07c3 ! /er0o" )!5 be 6o7"# 3!0 t3e /r1)!r5 F7r10#1ct1o" to /ro0ec7te 07c3 /er0o", re2!r#:e00 o6 "!t1o"!:1t5 !"# ?3ere t3e cr1)e ?!0 co))1tte#. Ho?e(er, 16 ! St!te #oe0 "ot e4erc10e 07c3 /r1)!r5 F7r10#1ct1o", t3e" 07c3 St!te 3!0 t3e ob:12!t1o" to t7r" o(er t3e !cc70e# to t3e 1"ter"!t1o"!: tr1b7"!: (e0te# ?1t3 F7r10#1ct1o" to tr5 07c3 /er0o". 0his principle has )een co i/ie in Section 83e4 an Section =A o/ 2A BC<=. Moreover, #ection '% of RA (:%' has e"pressl/ adopted @C rKe:e(!"t !"# !//:1c!b:e 1"ter"!t1o"!: 37)!" r123t0 1"0tr7)e"t0@ as sources of international law in the application and interpretation of RA (:%', thus> #ection '%. Applica)ility o/ +nternational La$. A -n the application and interpretation of this Act, Philippine courts shall be guided b/ the following sources>

4a5 " " " """ 4e5 !he rules and principles of custo ar/ international law? """ 4g5 Re:e(!"t !"# !//:1c!b:e 1"ter"!t1o"!: 37)!" r123t0 1"0tr7)e"t0? 4h5 <ther relevant international treaties and conventions ratified or acceded to b/ the Republic of the Philippines? and " " ". 4E phasis supplied5 !he Ro e #tatute is the ost relevant and applicable international hu an rights instru ent in the application and interpretation of RA (:%'. #ection '%4g5 of RA (:%' authori1es the use of the Ro e #tatute as a source of international law even though the Philippines is not a part/ to the Ro e #tatute. #ection '%4g5 does not re.uire ratification b/ the Philippines to such relevant and applicable international hu an rights instru ents. -nternational hu an rights instru ents to which the Philippines is a part/ are governed b/ #ection '%4h5, referring to treaties or conventions @ratified or acceded to@ b/ the Philippines, which constitute a different categor/ of sources of international law under #ection '% of RA (:%'. !hus, #ection '%4g5 and #ection '%4h5 refer to different instru ents, the for er to international hu an rights instru ents to which the Philippines is not a part/, and the latter to international hu an rights instru ents to which the Philippines is a part/. B/ andate of #ection '% of RA (:%', both categories of instru ents are sources of international law in the application and interpretation of RA (:%'. +owever, paragraph $ of the assailed RPAF# NonA#urrender Agree ent provides as follows> $. Persons of one Part/ present in the territor/ of the other shall not, absent the e"press consent of the first Part/, 4a5 be surrendered or transferred b/ an/ eans to an/ international tribunal for an/ purpose, unless such tribunal has been established b/ the FN #ecurit/ Council, or 4b5 be surrendered or transferred b/ an/ eans to an/ other entit/ or third countr/, or e"pelled to a third countr/, for the purpose of surrender to or transfer to an/ international tribunal, unless such tribunal has been established b/ the FN #ecurit/ Council. Clearl/, the Agree ent is in derogation of Article :(4'5 of the Ro e #tatute. Ghile Article (:4$5 of the Ro e #tatute, which states as follows> $. !he Court a/ not proceed with a re.uest for surrender which would re.uire the re.uested #tate to act inconsistentl/ with its obligations under 1"ter"!t1o"!: !2ree)e"t0 pursuant to which the consent of a sending #tate is re.uired to surrender a person of that #tate to the Court, unless the Court

can first obtain the cooperation of the sending #tate for the giving of consent for the surrender.@ 4E phasis supplied5 allows for derogation of Article :(4'5 if there is an 1"ter"!t1o"!: !2ree)e"t between #tates allowing such derogation, such international agree ent, being in derogation of an e"isting unicipal law insofar as the Philippines is concerned, )70t be e)bo#1e# 1" ! tre!t5 !"# r!t161e# b5 t3e P31:1//1"e Se"!te. Article (:4$5 does not ipso facto allow a derogation of Article :(4'5, but re.uires a further act, that is, the e"ecution of an international agree ent. S1"ce 07c3 1"ter"!t1o"!: !2ree)e"t 10 1" #ero2!t1o" o6 $rt1c:e &9A1B o6 t3e Ro)e St!t7te !"# Sect1o" 17 o6 R$ &9'1, 07c3 1"ter"!t1o"!: !2ree)e"t )70t be r!t161e# b5 t3e Se"!te to beco)e (!:1# !"# e66ect1(e . -ncidentall/, the RPAF# NonA#urrender Agree ent allows the Philippines to surrender, e(e" ?1t3o7t U.S. co"0e"t, a F.#. national accused of a cri e under RA (:%' provided that the surrender is ade to an @international tribunal """ established b/ the FN #ecurit/ Council.@ !he Fnited #tates agrees to this because it has a veto power in the FN #ecurit/ Council, a bloc0ing power which it does not have, and cannot have, in the -nternational Cri inal Court. !he -nternational Cri inal Court created under the Ro e #tatute was designed to co ple ent the efforts of states to prosecute their own citi1ens do esticall/ while ensuring that those who violate international law would be brought to justice.%) A state is given a chance to e"ercise co ple entarit/%% b/ infor ing the -CC of its choice to investigate and prosecute its own nationals through its own do estic courts.%3 !hus, the #tate has the pri ar/ jurisdiction to investigate and prosecute its own nationals in its custod/ who a/ have co itted the grave international cri es specified in the Ro e #tatute. Fnder the sa e precept, Article (:4$5 of the Ro e #tatute allows the #tate of the accused to act consistentl/ with its obligations under international agree ents, and the -CC @ a/ not proceed with a re.uest for surrender@ which would re.uire such #tate to act otherwise. !he -CC steps in and assu es jurisdiction onl/ if the #tate having pri ar/ jurisdiction and custod/ of the accused refuses to fulfill its international dut/ to prosecute those responsible for grave international cri es. !he Fnited #tates has not ratified the Ro e #tatute, and instead, entered into bilateral nonAsurrender agree ents with countries, citing its abilit/ to do so under Article (:4$5 of the Ro e #tatute.%& !hese agree ents, also called Bilateral unit/ Agree ents 4B-A5,%: were intended as @)e!"0 Jto /ro(1#eK !007r!"ce0 t3!t "o U.S. c1t1He" ?o7:# be 3!"#e# o(er to t3e AI"ter"!t1o"!: Cr1)1"!:B Co7rt 6or 1"(e0t12!t1o" !"# /ro0ec7t1o" o6 !::e2e# cr1)e0 t3!t 6e:: ?1t31" t3e Co7rtL0 F7r10#1ct1o". """@%( !here is currentl/ an argu ent within the international co unit/ about the use of Article (: agree ents, as negotiated b/ the F.#. after the adoption of the Ro e #tatute, and whether the/ should be recogni1ed as having precedent over -CCRs authorit/.3; Ghen Article (: was originall/ included in the Ro e #tatute, it was intended to cover #tatus of 9orces Agree ents 4#<9As5 and #tatus of Missions Agree ents 4#<MAs5,3' which establish the

responsibilities of a nation sending troops to another countr/, as well as where jurisdiction lies between the F.#. and the host govern ent over cri inal and civil issues involving the deplo/ed personnel. 3$ +owever, under the B-As, the standard definition of @persons@ covered is @current or for er 6overn ent officials, e plo/ees 4including contractors5, or ilitar/ personnel or "!t1o"!:0 o6 o"e /!rt5.@32 !he Bush Ad inistration3) contends that @such bilateral nonAsurrender agree ents are Article (:4$5 agree ents and that all F# citi1ens of whatever character are covered b/ an/ such agree ent, """ Cand thisD F# position on scope of the bilateral nonAsurrender agree ents, na el/ that it 1"c:7#e0 US c1t1He"0 !ct1"2 1" t3e1r /r1(!te c!/!c1t5, is legall/ supported b/ the te"t, the negotiating record, and precedent.R@ 3% Me!"?31:e, 1"ter"!t1o"!: :e2!: 0c3o:!r0 !"# )e)ber0 o6 t3e US .$G Cor/0 1"(o:(e# 1" t3e #r!6t1"2 o6 t3e Ro)e St!t7te e4/re00e# 6r70tr!t1o" ?1t3 t3e Ie4/!"01(e 70e o6 $rt1c:e 9& !2ree)e"t0 to !//:5 to !:: $)er1c!"0, "ot F70t t3o0e 1"#1(1#7!:0 707!::5 co(ere# 1" SO $0 !"# SOM$0.@33 !here are even those who contend that since the B-As do not deal solel/ with the conduct of official business, rather, the/ appl/ to a wide variet/ of persons who a/ be on the territor/ of either part/ for an/ purpose at an/ ti e, then @the Ro e #tatute does not authori1e these agree ents and b/ adhering to the , the countries will violate their obligations to the C-CCD under the #tatute.@3&[ Regardless of these contentions, however, the ulti ate judge as to what agree ent .ualifies under Article (:4$5 of the Ro e #tatute is the -CC itself.3: !he assailed RPAF# NonA#urrender Agree ent covers @officials, e plo/ees, ilitar/ personnel, and "!t1o"!:0.@ Fnder the Agree ent, the Philippines is not allowed, without F.#. consent, to surrender to an international tribunal, including the -CC, F.#. nationals 7 whether ilitar/ personnel or plain civilians 7 accused of genocide, war cri es and other cri es against hu anit/, that is, the cri es covered b/ the Ro e #tatute and RA (:%'. Ghether or not this Agree ent would be recogni1ed b/ the -CC as an @international agree ent@ .ualified under Article (:4$5 depends on the -CC itself. -n the do estic sphere, however, the Agree ent, being in derogation of the generall/ accepted principles of international law e bodied in Article :(4'5 of the Ro e #tatute, as well as being contrar/ to the provisions of #ection '& of RA (:%', should be ratified b/ the Philippine #enate to be valid and effective. -n su , an/ derogation fro the generall/ accepted principles of international law e bodied in the Ro e #tatute, which principles have the status of unicipal law in this countr/, cannot be underta0en through a ere e"ecutive agree ent because an e"ecutive agree ent cannot a end e"isting laws. A law or a treat/ ratified b/ the Philippine #enate is necessar/ to a end, for purposes of do estic law, a derogable principle of international law, such as Article :(4'5 of the Ro e #tatute, which has the status of unicipal law. L1;e?10e, !"5 #ero2!t1o" 6ro) t3e 07rre"#er o/t1o" o6 t3e P31:1//1"e0 7"#er Sect1o" 17 o6 R$ 9&'1 )70t be e)bo#1e# 1" !" !//:1c!b:e e4tr!#1t1o" :!? or tre!t5 !"# "ot 1" ! )ere e4ec7t1(e !2ree)e"t

bec!70e 07c3 #ero2!t1o" (1o:!te0 R$ 9&'1, ?31c3 10 07/er1or to, !"# /re(!1:0 o(er, ! /r1or e4ec7t1(e !2ree)e"t !::o?1"2 07c3 #ero2!t1o". U"#er "o c1rc7)0t!"ce c!" ! )ere e4ec7t1(e !2ree)e"t /re(!1: o(er ! /r1or or 07b0eE7e"t :!? 1"co"010te"t ?1t3 07c3 e4ec7t1(e !2ree)e"t . !hus, the RPAF# NonA#urrender Agree ent to be valid and effective ust be ratified b/ the Philippine #enate, and unless so ratified, the Agree ent is without force and effect. Accordingl/, - vote to GR$NT the petition and to %ECL$RE the RPAF# NonA #urrender Agree ent ineffective and unenforceable unless and until ratified b/ the #enate of the Philippines. $NTONIO T. C$RPIO Associate *ustice

Republic of the Philippines SUPREME COURT Manila EN ,$NC G.R. No. 1&''72 ebr7!r5 7, 2*12 CHIN$ N$TION$L M$CHINER+ P E>UIPMENT CORP. AGROUPB, Petitioner, vs. HON. CES$R %. S$NT$M$RI$, 1" 310 o661c1!: c!/!c1t5 !0 Pre01#1"2 .7#2e o6 ,r!"c3 14', Re21o"!: Tr1!: Co7rt o6 M!;!t1 C1t5, HERMINIO H$RR+ L. RO>UE, .R., .OEL R. ,UTU+$N, ROGER R. R$+EL, ROMEL R. ,$G$RES, CHRISTOPHER R$NCISCO C. ,OL$STIG, LE$GUE O UR,$N POOR OR $CTION ALUP$B, @ILUS$N NG M$R$LIT$ S$ ME+C$U$+$N A@MM-LUP$ CH$PTERB, %$NILO M. C$L%ERON, 8ICENTE C. $L,$N, MERL+N M. 8$$L, LOLIT$ S. >UINONES, RIC$R%O %. L$NO=O, .R., CONCHIT$ G. GO=O, M$. TERES$ %. =EPE%$, .OSE IN$ $. L$NO=O, !"# SERGIO C. LEG$SPI, .R., @$LIPUN$N NG %$M$+$NG M$HIHIR$P A@$%$M$+B, E%+ CLERIGO, R$MMIL %ING$L, NELSON ,. TERR$%O, C$RMEN %EUNI%$, !"# E%U$R%O LEGSON, Respondents. =EC-#-<N SERENO, J.: !his is a Petition for Review on Certiorari with Pra/er for the -ssuance of a !e porar/ Restraining <rder 4!R<5 andIor Preli inar/ -njunction assailing the 2; #epte ber $;;: =ecision and % =ece ber $;;: Resolution of the Court of Appeals 4CA5 in CAU6.R. #P No. ';22%'.' <n ') #epte ber $;;$, petitioner China National Machiner/ 8 E.uip ent Corp. 46roup5 4CNME65, represented b/ its chairperson, Ren +ongbin, entered into a Me orandu of Fnderstanding with the North Bu1on Railwa/s Corporation 4Northrail5, represented b/ its president, *ose B. Cortes, *r. for

the conduct of a feasibilit/ stud/ on a possible railwa/ line fro Manila to #an 9ernando, Ba Fnion 4the Northrail Project5.$ <n 2; August $;;2, the E"port - port Ban0 of China 4EL-M Ban05 and the =epart ent of 9inance of the Philippines 4=<95 entered into a Me orandu of Fnderstanding 4Aug 2; M<F5, wherein China agreed to e"tend Preferential Bu/erRs Credit to the Philippine govern ent to finance the Northrail Project.2 !he Chinese govern ent designated EL-M Ban0 as the lender, while the Philippine govern ent na ed the =<9 as the borrower. ) Fnder the Aug 2; M<F, EL-M Ban0 agreed to e"tend an a ount not e"ceeding F#= );;,;;;,;;; in favor of the =<9, pa/able in $; /ears, with a %A/ear grace period, and at the rate of 2N per annu . % <n ' <ctober $;;2, the Chinese A bassador to the Philippines, Gang Chungui 4A b. Gang5, wrote a letter to =<9 #ecretar/ *ose -sidro Ca acho 4#ec. Ca acho5 infor ing hi of CNME6Rs designation as the Pri e Contractor for the Northrail Project.3 <n 2; =ece ber $;;2, Northrail and CNME6 e"ecuted a Contract Agree ent for the construction of #ection -, Phase - of the North Bu1on Railwa/ #/ste fro Caloocan to Malolos on a turn0e/ basis 4the Contract Agree ent5.& !he contract price for the Northrail Project was pegged at F#= )$',;%;,;;;.: <n $3 9ebruar/ $;;), the Philippine govern ent and EL-M Ban0 entered into a counterpart financial agree ent U Bu/er Credit Boan Agree ent No. BBA ;);%% 4the Boan Agree ent5.( -n the Boan Agree ent, EL-M Ban0 agreed to e"tend Preferential Bu/erRs Credit in the a ount of F#= );;,;;;,;;; in favor of the Philippine govern ent in order to finance the construction of Phase - of the Northrail Project. '; <n '2 9ebruar/ $;;3, respondents filed a Co plaint for Annul ent of Contract and -njunction with Frgent Motion for #u ar/ +earing to =eter ine the E"istence of 9acts and Circu stances *ustif/ing the -ssuance of Grits of Preli inar/ Prohibitor/ and Mandator/ -njunction andIor !R< against CNME6, the <ffice of the E"ecutive #ecretar/, the =<9, the =epart ent of Budget and Manage ent, the National Econo ic =evelop ent Authorit/ and Northrail.'' !he case was doc0eted as Civil Case No. ;3A$;2 before the Regional !rial Court, National Capital *udicial Region, Ma0ati Cit/, Branch ')% 4R!C Br. ')%5. -n the Co plaint, respondents alleged that the Contract Agree ent and the Boan Agree ent were void for being contrar/ to 4a5 the Constitution? 4b5 Republic Act No. (':) 4R.A. No. (':)5, otherwise 0nown as the 6overn ent Procure ent Refor Act? 4c5 Presidential =ecree No. '))%, otherwise 0nown as the 6overn ent Auditing Code? and 4d5 E"ecutive <rder No. $($, otherwise 0nown as the Ad inistrative Code.'$ R!C Br. ')% issued an <rder dated '& March $;;3 setting the case for hearing on the issuance of injunctive reliefs.'2 <n $( March $;;3, CNME6 filed an Frgent Motion for Reconsideration of this <rder. ') Before R!C Br. ')% could rule thereon, CNME6 filed a Motion to =is iss dated '$ April $;;3, arguing that the trial court did not have jurisdiction over 4a5 its person,

as it was an agent of the Chinese govern ent, a0ing it i une fro suit, and 4b5 the subject atter, as the Northrail Project was a product of an e"ecutive agree ent.'% <n '% Ma/ $;;&, R!C Br. ')% issued an < nibus <rder den/ing CNME6Rs Motion to =is iss and setting the case for su ar/ hearing to deter ine whether the injunctive reliefs pra/ed for should be issued. '3 CNME6 then filed a Motion for Reconsideration,'& which was denied b/ the trial court in an <rder dated '; March $;;:.': !hus, CNME6 filed before the CA a Petition for Certiorari with Pra/er for the -ssuance of !R< andIor Grit of Preli inar/ -njunction dated ) April $;;:.'( -n the assailed =ecision dated 2; #epte ber $;;:, the appellate court dis issed the Petition for Certiorari.$; #ubse.uentl/, CNME6 filed a Motion for Reconsideration,$' which was denied b/ the CA in a Resolution dated % =ece ber $;;:.$$ !hus, CNME6 filed the instant Petition for Review on Certiorari dated $' *anuar/ $;;(, raising the following issues> $2 Ghether or not petitioner CNME6 is an agent of the sovereign PeopleRs Republic of China. Ghether or not the Northrail contracts are products of an e"ecutive agree ent between two sovereign states. Ghether or not the certification fro the =epart ent of 9oreign Affairs is necessar/ under the foregoing circu stances. Ghether or not the act being underta0en b/ petitioner CNME6 is an act jure i perii. Ghether or not the Court of Appeals failed to avoid a procedural li bo in the lower court. Ghether or not the Northrail Project is subject to co petitive public bidding. Ghether or not the Court of Appeals ignored the ruling of this +onorable Court in the Neri case. CNME6 pra/s for the dis issal of Civil Case No. ;3A$;2 before R!C Br. ')% for lac0 of jurisdiction. -t li0ewise re.uests this Court for the issuance of a !R< and, later on, a writ of preli inar/ injunction to restrain public respondent fro proceeding with the disposition of Civil Case No. ;3A$;2. !he cru" of this case boils down to two ain issues, na el/> '. Ghether CNME6 is entitled to i unit/, precluding it fro being sued before a local court. $. Ghether the Contract Agree ent is an e"ecutive agree ent, such that it cannot be .uestioned b/ or before a local court. 1r0t 1007e< -3et3er CNMEG 10 e"t1t:e# to 1))7"1t5 !his Court e"plained the doctrine of sovereign i unit/ in :oly See v. +osario'$) to wit> !here are two conflicting concepts of sovereign i unit/, each widel/ held and fir l/ established. According to the classical or absolute theor/, ! 0o(ere12" c!""ot, ?1t3o7t 1t0 co"0e"t, be )!#e ! re0/o"#e"t 1" t3e co7rt0 o6 !"ot3er 0o(ere12". According to the newer or restrictive theor/, t3e 1))7"1t5 o6 t3e 0o(ere12" 10 reco2"1He# o":5 ?1t3 re2!r# to /7b:1c

!ct0 or !ct0 >ure imperii o6 ! 0t!te, b7t "ot ?1t3 re2!r# to /r1(!te !ct0 or !ct0 >ure gestionis. 4E phasis supplied? citations o itted.5 """ """ """ !he restrictive theor/ ca e about because of the entr/ of sovereign states into purel/ co ercial activities re otel/ connected with the discharge of govern ental functions. !his is particularl/ true with respect to the Co unist states which too0 control of nationali1ed business activities and international trading. -n *F#MA6 v. National Babor Relations Co ission,$% this Court affir ed the PhilippinesR adherence to the restrictive theor/ as follows> !he doctrine of state i unit/ fro suit has undergone further eta orphosis. !he view evolved that the e"istence of a contract does not, per se, ean that sovereign states a/, at all ti es, be sued in local courts. !he co ple"it/ of relationships between sovereign states, brought about b/ their increasing co ercial activities, othered a ore restrictive application of the doctrine. """ """ """ As it stands now, the application of the doctrine of i unit/ fro suit has been restricted to sovereign or govern ental activities 4jure imperii5. !he antle of state i unit/ cannot be e"tended to co ercial, private and proprietar/ acts 4jure gestionis5.$3 4E phasis supplied.5 #ince the Philippines adheres to the restrictive theor/, it is crucial to ascertain the legal nature of the act involved U whether the entit/ clai ing i unit/ perfor s govern ental, as opposed to proprietar/, functions. As held in Fnited #tates of A erica v. Rui1 U$& !he restrictive application of #tate i unit/ is proper onl/ when the proceedings arise out of co ercial transactions of the foreign sovereign, its co ercial activities or econo ic affairs. #tated differentl/, a #tate a/ be said to have descended to the level of an individual and can thus be dee ed to have tacitl/ given its consent to be sued onl/ when it enters into business contracts. -t does not appl/ where the contract relates to the e"ercise of its sovereign functions.$: A. CNME6 is engaged in a proprietar/ activit/. A threshold .uestion that ust be answered is whether CNME6 perfor s govern ental or proprietar/ functions. A thorough e"a ination of the basic facts of the case would show that CNME6 is engaged in a proprietar/ activit/. !he parties e"ecuted the Contract Agree ent for the purpose of constructing the Bu1on Railwa/s, vi1>$( G+EREA# the E plo/er 4Northrail5 desired to construct the railwa/s for Caloocan to Malolos, section -, Phase - of Philippine North Bu1on Railwa/s Project 4hereinafter referred to as !+E PR<*EC!5? AN= G+EREA# the Contractor has offered to provide the Project on !urn0e/ basis, including design, anufacturing, suppl/, construction, co issioning, and training of the E plo/erRs personnel?

AN= G+EREA# the Boan Agree ent of the Preferential Bu/erRs Credit between E"portA- port Ban0 of China and =epart ent of 9inance of Republic of the Philippines? N<G, !+ERE9<RE, the parties agree to sign this Contract for the - ple entation of the Project. !he aboveAcited portion of the Contract Agree ent, however, does not on its own reveal whether the construction of the Bu1on railwa/s was eant to be a proprietar/ endeavor. -n order to full/ understand the intention behind and the purpose of the entire underta0ing, the Contract Agree ent ust not be read in isolation. -nstead, it ust be construed in conjunction with three other docu ents e"ecuted in relation to the Northrail Project, na el/> 4a5 the Me orandu of Fnderstanding dated ') #epte ber $;;$ between Northrail and CNME6?2; 4b5 the letter of A b. Gang dated ' <ctober $;;2 addressed to #ec. Ca acho?2' and 4c5 the Boan Agree ent.2$ '. Me orandu of Fnderstanding dated ') #epte ber $;;$ !he Me orandu of Fnderstanding dated ') #epte ber $;;$ shows that CNME6 sought the construction of the Bu1on Railwa/s as a proprietar/ venture. !he relevant parts thereof read> G+EREA#, CNME6 has the financial capabilit/, professional co petence and technical e"pertise to assess the state of the CMain Bine North 4MBN5D and reco end i ple entation plans as well as underta0e its rehabilitation andIor oderni1ation? G+EREA#, CNME6 has e"pressed interest in the rehabilitation andIor oderni1ation of the MBN fro Metro Manila to #an 9ernando, Ba Fnion passing through the provinces of Bulacan, Pa panga, !arlac, Pangasinan and Ba Fnion 4the QProjectR5? G+EREA#, the N<R!+RA-B C<RP. welco es CNME6Rs proposal to underta0e a 9easibilit/ #tud/ 4the @#tud/@5 at no cost to N<R!+RA-B C<RP.? G+EREA#, the N<R!+RA-B C<RP. also welco es CNME6Rs interest in underta0ing the Project with #upplierRs Credit and intends to e plo/ CNME6 as the Contractor for the Project subject to co pliance with Philippine and Chinese laws, rules and regulations for the selection of a contractor? G+EREA#, the N<R!+RA-B C<RP. considers CNME6Rs proposal advantageous to the 6overn ent of the Republic of the Philippines and has therefore agreed to assist CNME6 in the conduct of the aforesaid #tud/? """ """ """ --. APPR<EAB PR<CE## $.' As soon as possible after co pletion and presentation of the #tud/ in accordance with Paragraphs '.2 and '.) above and in co pliance with necessar/ govern ental laws, rules, regulations and procedures re.uired fro both parties, the parties shall co ence the preparation and negotiation of the ter s and conditions of the Contract 4the @Contract@5 to be entered into between the on the i ple entation of the Project. !he parties shall use their best endeavors to for ulate and finali1e a Contract with a

view to signing the Contract within one hundred twent/ 4'$;5 da/s fro CNME6Rs presentation of the #tud/.22 4E phasis supplied5 Clearl/, it was CNME6 that initiated the underta0ing, and not the Chinese govern ent. !he 9easibilit/ #tud/ was conducted not because of an/ diplo atic gratuit/ fro or e"ercise of sovereign functions b/ the Chinese govern ent, but was plainl/ a business strateg/ e plo/ed b/ CNME6 with a view to securing this co ercial enterprise. $. Better dated ' <ctober $;;2 !hat CNME6, and not the Chinese govern ent, initiated the Northrail Project was confir ed b/ A b. Gang in his letter dated ' <ctober $;;2, thus> '. CNME6 has the proven co petence and capabilit/ to underta0e the Project as evidenced b/ the ran0ing of )$ given b/ the ENR a ong $$% global construction co panies. $. CNME6 alread/ signed an M<F with the North Bu1on Railwa/s Corporation last #epte ber '), $;;; during the visit of Chair an Bi Peng. #uch being the case, the/ have alread/ established an initial wor0ing relationship with /our North Bu1on Railwa/s Corporation. !his would categori1e CNME6 as the state corporation within the PeopleRs Republic of China which initiated our 6overn entRs involve ent in the Project. 2. A ong the various state corporations of the PeopleRs Republic of China, onl/ CNME6 has the advantage of being full/ fa iliar with the current re.uire ents of the Northrail Project having alread/ acco plished a 9easibilit/ #tud/ which was used as inputs b/ the North Bu1on Railwa/s Corporation in the approvals 4sic5 process re.uired b/ the Republic of the Philippines.2) 4E phasis supplied.5 !hus, the desire of CNME6 to secure the Northrail Project was in the ordinar/ or regular course of its business as a global construction co pan/. !he i ple entation of the Northrail Project was intended to generate profit for CNME6, with the Contract Agree ent placing a contract price of F#= )$',;%;,;;; for the venture.2% !he use of the ter @state corporation@ to refer to CNME6 was onl/ descriptive of its nature as a govern entAowned andIor Acontrolled corporation, and its assign ent as the Pri ar/ Contractor did not i pl/ that it was acting on behalf of China in the perfor ance of the latterRs sovereign functions. !o i pl/ otherwise would result in an absurd situation, in which all Chinese corporations owned b/ the state would be auto aticall/ considered as perfor ing govern ental activities, even if the/ are clearl/ engaged in co ercial or proprietar/ pursuits. 2. !he Boan Agree ent CNME6 clai s i unit/ on the ground that the Aug 2; M<F on the financing of the Northrail Project was signed b/ the Philippine and Chinese govern ents, and its assign ent as the Pri ar/ Contractor eant that it was bound to perfor a govern ental function on behalf of China. +owever, the Boan Agree ent, which originated fro the sa e Aug 2; M<F, belies this reasoning, vi1>

Article ''. """ 4j5 Co ercial Activit/ !he e"ecution and deliver/ of this Agree ent b/ the Borrower constitute, and the BorrowerRs perfor ance of and co pliance with its obligations under this Agree ent will constitute, /r1(!te !"# co))erc1!: !ct0 #o"e !"# /er6or)e# 6or co))erc1!: /7r/o0e0 7"#er t3e :!?0 o6 t3e Re/7b:1c o6 t3e P31:1//1"e0 !"# "e1t3er t3e ,orro?er "or !"5 o6 1t0 !00et0 10 e"t1t:e# to !"5 1))7"1t5 or /r1(1:e2e A0o(ere12" or ot3er?10eB 6ro) 071t, e4ec7t1o" or !"5 ot3er :e2!: /roce00 ?1t3 re0/ect to 1t0 ob:12!t1o"0 7"#er t310 $2ree)e"t, !0 t3e c!0e )!5 be, 1" !"5 F7r10#1ct1o". Notwithstanding the foregoing, the Borrower does not waive an/ i unit/ with respect of its assets which are 4i5 used b/ a diplo atic or consular ission of the Borrower and 4ii5 assets of a ilitar/ character and under control of a ilitar/ authorit/ or defense agenc/ and 4iii5 located in the Philippines and dedicated to public or govern ental use 4as distinguished fro patri onial assets or assets dedicated to co ercial use5. 4E phasis supplied.5 405 Proceedings to Enforce Agree ent -n an/ proceeding in the Republic of the Philippines to enforce this Agree ent, the choice of the laws of the PeopleRs Republic of China as the governing law hereof will be recogni1ed and such law will be applied. !he waiver of i unit/ b/ the Borrower, the irrevocable sub issions of the Borrower to the nonAe"clusive jurisdiction of the courts of the PeopleRs Republic of China and the appoint ent of the BorrowerRs Chinese Process Agent is legal, valid, binding and enforceable and an/ judg ent obtained in the PeopleRs Republic of China will be if introduced, evidence for enforce ent in an/ proceedings against the Borrower and its assets in the Republic of the Philippines provided that 4a5 the court rendering judg ent had jurisdiction over the subject atter of the action in accordance with its jurisdictional rules, 4b5 the Republic had notice of the proceedings, 4c5 the judg ent of the court was not obtained through collusion or fraud, and 4d5 such judg ent was not based on a clear ista0e of fact or law.23 9urther, the Boan Agree ent li0ewise contains this e"press waiver of i unit/> '%.% Gaiver of unit/ !he Borrower irrevocabl/ and unconditionall/ waives, an/ i unit/ to which it or its propert/ a/ at an/ ti e be or beco e entitled, whether characteri1ed as sovereign i unit/ or otherwise, fro an/ suit, judg ent, service of process upon it or an/ agent, e"ecution on judg ent, setAoff, attach ent prior to judg ent, attach ent in aid of e"ecution to which it or its assets a/ be entitled in an/ legal action or proceedings with respect to this Agree ent or an/ of the transactions conte plated hereb/ or hereunder. Notwithstanding the foregoing, the Borrower does not waive an/ i unit/ in respect of its assets which are 4i5 used b/ a diplo atic or consular ission of the Borrower, 4ii5 assets of a ilitar/ character and under control of a ilitar/ authorit/ or defense agenc/ and 4iii5 located in the Philippines and dedicated to a public or govern ental use 4as distinguished fro patri onial assets or assets dedicated to co ercial use5.2&

!hus, despite petitionerRs clai that the EL-M Ban0 e"tended financial assistance to Northrail because the ban0 was andated b/ the Chinese govern ent, and not because of an/ otivation to do business in the Philippines,2: it is clear fro the foregoing provisions that the Northrail Project was a purel/ co ercial transaction. Ad ittedl/, the Boan Agree ent was entered into between EL-M Ban0 and the Philippine govern ent, while the Contract Agree ent was between Northrail and CNME6. Although the Contract Agree ent is silent on the classification of the legal nature of the transaction, the foregoing provisions of the Boan Agree ent, which is an ine"tricable part of the entire underta0ing, nonetheless reveal the intention of the parties to the Northrail Project to classif/ the whole venture as co ercial or proprietar/ in character. !hus, piecing together the content and tenor of the Contract Agree ent, the Me orandu of Fnderstanding dated ') #epte ber $;;$, A b. GangRs letter dated ' <ctober $;;2, and the Boan Agree ent would reveal the desire of CNME6 to construct the Bu1on Railwa/s in pursuit of a purel/ co ercial activit/ perfor ed in the ordinar/ course of its business. B. CNME6 failed to adduce evidence that it is i une fro suit under Chinese law. Even assu ing arguendo that CNME6 perfor s govern ental functions, such clai does not auto aticall/ vest it with i unit/. !his view finds support in Malong v. Philippine National Railwa/s, in which this Court held that @4i5 unit/ fro suit is deter ined b/ the character of the objects for which the entit/ was organi1ed.@2( -n this regard, this CourtRs ruling in =eutsche 6esellschaft 9\r !echnische Pusa enarbeit 46!P5 v. CA); ust be e"a ined. -n =eutsche 6esellschaft, 6er an/ and the Philippines entered into a !echnical Cooperation Agree ent, pursuant to which both signed an arrange ent pro oting the #ocial +ealth -nsuranceUNetwor0ing and E power ent 4#+-NE5 project. !he two govern ents na ed their respective i ple enting organi1ations> the =epart ent of +ealth 4=<+5 and the Philippine +ealth -nsurance Corporation 4P+-C5 for the Philippines, and 6!P for the i ple entation of 6er an/Rs contributions. -n ruling that 6!P was not i une fro suit, this Court held> !he argu ents raised b/ 6!P and the C<ffice of the #olicitor 6eneral 4<#65D are rooted in several indisputable facts. !he #+-NE project was i ple ented pursuant to the bilateral agree ents between the Philippine and 6er an govern ents. 6!P was tas0ed, under the '((' agree ent, with the i ple entation of the contributions of the 6er an govern ent. !he activities perfor ed b/ 6!P pertaining to the #+-NE project are govern ental in nature, related as the/ are to the pro otion of health insurance in the Philippines. !he fact that 6!P entered into e plo/ ent contracts with the private respondents did not dis.ualif/ it fro invo0ing i unit/ fro suit, as held in cases such as +ol/ #ee v. Rosario, *r., which set forth what re ains valid doctrine>

Certainl/, the ere entering into a contract b/ a foreign state with a private part/ cannot be the ulti ate test. #uch an act can onl/ be the start of the in.uir/. !he logical .uestion is whether the foreign state is engaged in the activit/ in the regular course of business. -f the foreign state is not engaged regularl/ in a business or trade, the particular act or transaction ust then be tested b/ its nature. -f the act is in pursuit of a sovereign activit/, or an incident thereof, then it is an act jure i perii, especiall/ when it is not underta0en for gain or profit. Be/ond dispute is the tenabilit/ of the co ent points 4sic5 raised b/ 6!P and the <#6 that 6!P was not perfor ing proprietar/ functions notwithstanding its entr/ into the particular e plo/ ent contracts. Het there is an e.uall/ funda ental pre ise which 6!P and the <#6 fail to address, na el/> -s 6!P, b/ conception, able to enjo/ the 9ederal RepublicRs i unit/ fro suitM !he principle of state i unit/ fro suit, whether a local state or a foreign state, is reflected in #ection (, Article LE- of the Constitution, which states that @the #tate a/ not be sued without its consent.@ Gho or what consists of @the #tate@M 9or one, the doctrine is available to foreign #tates insofar as the/ are sought to be sued in the courts of the local #tate, necessar/ as it is to avoid @undul/ ve"ing the peace of nations.@ -f the instant suit had been brought directl/ against the 9ederal Republic of 6er an/, there would be no doubt that it is a suit brought against a #tate, and the onl/ necessar/ in.uir/ is whether said #tate had consented to be sued. +owever, the present suit was brought against 6!P. -t is necessar/ for us to understand what precisel/ are the para eters of the legal personalit/ of 6!P. Co7"0e: 6or GT= c3!r!cter1He0 GT= !0 It3e 1)/:e)e"t1"2 !2e"c5 o6 t3e Go(er")e"t o6 t3e e#er!: Re/7b:1c o6 Ger)!"5,I a depiction si ilarl/ adopted b/ the <#6. Assu ing that the characteri1ation is correct, 1t #oe0 "ot !7to)!t1c!::5 1"(e0t GT= ?1t3 t3e !b1:1t5 to 1"(o;e St!te 1))7"1t5 6ro) 071t. !he distinction lies in whether the agenc/ is incorporated or unincorporated. """ """ """ #tate i unit/ fro suit a/ be waived b/ general or special law. !he special law can ta0e the for of the original charter of the incorporated govern ent agenc/. *urisprudence is replete with e"a ples of incorporated govern ent agencies which were ruled not entitled to invo0e i unit/ fro suit, owing to provisions in their charters anifesting their consent to be sued. """ """ """ -t is useful to note that on the part of the Philippine govern ent, it had designated two entities, the =epart ent of +ealth and the Philippine +ealth -nsurance Corporation 4P+-C5, as the i ple enting agencies in behalf of the Philippines. !he P+-C was established under Republic Act No. &:&%, #ection '3 4g5 of which grants the corporation the power @to sue and be sued in

court.@ Appl/ing the previousl/ cited jurisprudence, P+-C would not enjo/ i unit/ fro suit even in the perfor ance of its functions connected with #+-NE, however, 4sic5 govern ental in nature as 4sic5 the/ a/ be. I0 GT= !" 1"cor/or!te# !2e"c5 o6 t3e Ger)!" 2o(er")e"tG T3ere 10 0o)e )50ter5 07rro7"#1"2 t3!t E7e0t1o". Ne1t3er GT= "or t3e OSG 2o be5o"# t3e c:!1) t3!t /et1t1o"er 10 It3e 1)/:e)e"t1"2 !2e"c5 o6 t3e Go(er")e"t o6 t3e e#er!: Re/7b:1c o6 Ger)!"5.I <n the other hand, private respondents asserted before the Babor Arbiter that 6!P was @a private corporation engaged in the i ple entation of develop ent projects.@ !he Babor Arbiter accepted that clai in his <rder den/ing the Motion to =is iss, though he was silent on that point in his =ecision. Nevertheless, private respondents argue in their Co ent that the finding that 6!P was a private corporation @was never controverted, and is therefore dee ed ad itted.@ -n its Repl/, 6!P controverts that finding, sa/ing that it is a atter of public 0nowledge that the status of petitioner 6!P is that of the @i ple enting agenc/,@ and not that of a private corporation. -n truth, private respondents were unable to adduce an/ evidence to substantiate their clai that 6!P was a @private corporation,@ and the Babor Arbiter acted rashl/ in accepting such clai without e"planation. But "e1t3er 3!0 GT= 07//:1e# !"5 e(1#e"ce #e61"1"2 1t0 :e2!: "!t7re be5o"# t3!t o6 t3e b!re #e0cr1/t1(e I1)/:e)e"t1"2 !2e"c5.I T3ere 10 "o #o7bt t3!t t3e 1991 $2ree)e"t #e012"!te# GT= !0 t3e I1)/:e)e"t1"2 !2e"c5I 1" be3!:6 o6 t3e Ger)!" 2o(er")e"t. +et t3e c!tc3 10 t3!t 07c3 ter) 3!0 "o /rec10e #e61"1t1o" t3!t 10 re0/o"01(e to o7r co"cer"0. I"3ere"t:5, !" !2e"t !ct0 1" be3!:6 o6 ! /r1"c1/!:, !"# t3e GT= c!" be 0!1# to !ct 1" be3!:6 o6 t3e Ger)!" 0t!te. ,7t t3!t 10 !0 6!r !0 I1)/:e)e"t1"2 !2e"c5I co7:# t!;e 70. T3e ter) b5 1t0e:6 #oe0 "ot 07//:5 ?3et3er GT= 10 1"cor/or!te# or 7"1"cor/or!te#, ?3et3er 1t 10 o?"e# b5 t3e Ger)!" 0t!te or b5 /r1(!te 1"tere0t0, ?3et3er 1t 3!0 F7r1#1c!: /er0o"!:1t5 1"#e/e"#e"t o6 t3e Ger)!" 2o(er")e"t or "o"e !t !::. """ """ """ $2!1", ?e !re 7"cert!1" o6 t3e corre0/o"#1"2 :e2!: 1)/:1c!t1o"0 7"#er Ger)!" :!? 07rro7"#1"2 I! /r1(!te co)/!"5 o?"e# b5 t3e e#er!: Re/7b:1c o6 Ger)!"5.I +et t!;1"2 t3e #e0cr1/t1o" o" 6!ce (!:7e, t3e !//!re"t eE71(!:e"t 7"#er P31:1//1"e :!? 10 t3!t o6 ! cor/or!t1o" or2!"1He# 7"#er t3e Cor/or!t1o" Co#e b7t o?"e# b5 t3e P31:1//1"e 2o(er")e"t, or ! 2o(er")e"t-o?"e# or co"tro::e# cor/or!t1o" ?1t3o7t or121"!: c3!rter. $"# 1t be!r0 "ot1ce t3!t Sect1o" 36 o6 t3e Cor/or!te Co#e 0t!te0 t3!t IJeK(er5 cor/or!t1o" 1"cor/or!te# 7"#er t310 Co#e 3!0 t3e /o?er !"# c!/!c1t5 4 4 4 to 07e !"# be 07e# 1" 1t0 cor/or!te "!)e.I -t is entirel/ possible that under 6er an law, an entit/ such as 6!P or particularl/ 6!P itself has not been vested or has been specificall/ deprived the power and capacit/ to sue andIor be sued. Het in the proceedings below and before this Court, GT= 3!0 6!1:e# to e0t!b:103 t3!t 7"#er Ger)!" :!?, 1t 3!0 "ot co"0e"te# to be 07e# #e0/1te 1t be1"2 o?"e# b5 t3e e#er!: Re/7b:1c o6 Ger)!"5. -e !#3ere to t3e r7:e t3!t 1" t3e !b0e"ce o6

e(1#e"ce to t3e co"tr!r5, 6ore12" :!?0 o" ! /!rt1c7:!r 07bFect !re /re07)e# to be t3e 0!)e !0 t3o0e o6 t3e P31:1//1"e0, !"# 6o::o?1"2 t3e )o0t 1"te::12e"t !007)/t1o" ?e c!" 2!t3er, GT= 10 !;1" to ! 2o(er")e"t!: o?"e# or co"tro::e# cor/or!t1o" ?1t3o7t or121"!: c3!rter ?31c3, b5 (1rt7e o6 t3e Cor/or!t1o" Co#e, 3!0 e4/re00:5 co"0e"te# to be 07e#. At the ver/ least, li0e the Babor Arbiter and the Court of Appeals, this Court has no basis in fact to conclude or presu e that 6!P enjo/s i unit/ fro suit.)' 4E phasis supplied.5 Appl/ing the foregoing ruling to the case at bar, it is readil/ apparent that CNME6 cannot clai i unit/ fro suit, even if it contends that it perfor s govern ental functions. -ts designation as the Pri ar/ Contractor does not auto aticall/ grant it i unit/, just as the ter @i ple enting agenc/@ has no precise definition for purposes of ascertaining whether 6!P was i une fro suit. Although CNME6 clai s to be a govern entAowned corporation, it failed to adduce evidence that it has not consented to be sued under Chinese law. !hus, following this CourtRs ruling in =eutsche 6esellschaft, in the absence of evidence to the contrar/, CNME6 is to be presu ed to be a govern entAowned and Acontrolled corporation without an original charter. As a result, it has the capacit/ to sue and be sued under #ection 23 of the Corporation Code. C. CNME6 failed to present a certification fro the =epart ent of 9oreign Affairs. -n +ol/ #ee,)$ this Court reiterated the oftAcited doctrine that the deter ination b/ the E"ecutive that an entit/ is entitled to sovereign or diplo atic i unit/ is a political .uestion conclusive upon the courts, to wit> -n Public -nternational Baw, when a state or international agenc/ wishes to plead sovereign or diplo atic i unit/ in a foreign court, it re.uests the 9oreign <ffice of the state where it is sued to conve/ to the court that said defendant is entitled to i unit/. """ """ """ -n the Philippines, the practice is for the foreign govern ent or the international organi1ation to first secure an e"ecutive endorse ent of its clai of sovereign or diplo atic i unit/. But how the Philippine 9oreign <ffice conve/s its endorse ent to the courts varies. -n <nternational atholic 5igration ommission v. alleja, '(; #CRA '2; 4'((;5, the #ecretar/ of 9oreign Affairs just sent a letter directl/ to the #ecretar/ of Babor and E plo/ ent, infor ing the latter that the respondentAe plo/er could not be sued because it enjo/ed diplo atic i unit/. -n ;orld :ealth Organization v. )quino, ): #CRA $)$ 4'(&$5, the #ecretar/ of 9oreign Affairs sent the trial court a telegra to that effect. -n !aer v. Tizon, %& #CRA ' 4'(&)5, the F.#. E bass/ as0ed the #ecretar/ of 9oreign Affairs to re.uest the #olicitor 6eneral to a0e, in behalf of the Co ander of the Fnited #tates Naval Base at <longapo Cit/, Pa bales, a @suggestion@ to respondent *udge. !he #olicitor 6eneral e bodied the @suggestion@ in a Manifestation and Me orandu as amicus curiae.

-n the case at bench, the =epart ent of 9oreign Affairs, through the <ffice of Begal Affairs oved with this Court to be allowed to intervene on the side of petitioner. !he Court allowed the said =epart ent to file its e orandu in support of petitionerRs clai of sovereign i unit/. -n so e cases, the defense of sovereign i unit/ was sub itted directl/ to the local courts b/ the respondents through their private counsels 4Ra.ui1a v. Bradford, &% Phil. %; C'()%D? Mi.uiabas v. PhilippineAR/u0/us Co and, :; Phil. $3$ C'():D? Fnited #tates of A erica v. 6uinto, ':$ #CRA 3)) C'((;D and co panion cases5. -n cases where the foreign states b/pass the 9oreign <ffice, the courts can in.uire into the facts and a0e their own deter ination as to the nature of the acts and transactions involved. )2 4E phasis supplied.5 !he .uestion now is whether an/ agenc/ of the E"ecutive Branch can a0e a deter ination of i unit/ fro suit, which a/ be considered as conclusive upon the courts. !his Court, in =epart ent of 9oreign Affairs 4=9A5 v. National Babor Relations Co ission 4NBRC5, )) e phasi1ed the =9ARs co petence and authorit/ to provide such necessar/ deter ination, to wit> !he =9ARs function includes, a ong its other andates, the deter ination of persons and institutions covered b/ diplo atic i unities, a deter ination which, when challenge, 4sic5 entitles it to see0 relief fro the court so as not to seriousl/ i pair the conduct of the countr/Js foreign relations. !he =9A ust be allowed to plead its case whenever necessar/ or advisable to enable it to help 0eep the credibilit/ of the Philippine govern ent before the international co unit/. Ghen international agree ents are concluded, the parties thereto are dee ed to have li0ewise accepted the responsibilit/ of seeing to it that their agree ents are dul/ regarded. -n our countr/, this tas0 falls principall/ of 4sic5 the =9A as being the highest e"ecutive depart ent with the co petence and authorit/ to so act in this aspect of the international arena.)% 4E phasis supplied.5 9urther, the fact that this authorit/ is e"clusive to the =9A was also e phasi1ed in this CourtRs ruling in =eutsche 6esellschaft> -t is to be recalled that the Babor Arbiter, in both of his rulings, noted that it was i perative for petitioners to secure fro the =epart ent of 9oreign Affairs @a certification of respondentsR diplo atic status and entitle ent to diplo atic privileges including i unit/ fro suits.@ !he re.uire ent ight not necessaril/ be i perative. +owever, had 6!P obtained such certification fro the =9A, it would have provided factual basis for its clai of i unit/ that would, at the ver/ least, establish a disputable evidentiar/ presu ption that the foreign part/ is indeed i une which the opposing part/ will have to overco e with its own factual evidence. Ge do not see wh/ 6!P could not have secured such certification or endorse ent fro the =9A for purposes of this case. Certainl/, it would have been highl/ prudential for 6!P to obtain the sa e after the Babor Arbiter had denied the otion to dis iss. #till, even at this juncture, we do not see an/ evidence that the =9A, the office of the e"ecutive branch in charge of our diplo atic relations, has indeed endorsed 6!PRs clai of i unit/. -t a/ be possible that 6!P tried, but failed to

secure such certification, due to the sa e concerns that we have discussed herein. Gould the fact that the #olicitor 6eneral has endorsed 6!PRs clai of #tateRs i unit/ fro suit before this Court sufficientl/ substitute for the =9A certificationM Note that the rule in public international law .uoted in +ol/ #ee referred to endorse ent b/ the 9oreign <ffice of the #tate where the suit is filed, such foreign office in the Philippines being the =epart ent of 9oreign Affairs. Nowhere in the Co ent of the <#6 is it anifested that the =9A has endorsed 6!PRs clai , or that the <#6 had solicited the =9ARs views on the issue. !he argu ents raised b/ the <#6 are virtuall/ the sa e as the argu ents raised b/ 6!P without an/ indication of an/ special and distinct perspective aintained b/ the Philippine govern ent on the issue. !he Co ent filed b/ the <#6 does not inspire the sa e degree of confidence as a certification fro the =9A would have elicited.)3 4E phasis supplied.5 -n the case at bar, CNME6 offers the Certification e"ecuted b/ the Econo ic and Co ercial <ffice of the E bass/ of the PeopleRs Republic of China, stating that the Northrail Project is in pursuit of a sovereign activit/. )& #urel/, this is not the 0ind of certification that can establish CNME6Rs entitle ent to i unit/ fro suit, as +ol/ #ee une.uivocall/ refers to the deter ination of the @9oreign <ffice of the state where it is sued.@ 9urther, CNME6 also clai s that its i unit/ fro suit has the e"ecutive endorse ent of both the <#6 and the <ffice of the 6overn ent Corporate Counsel 4<6CC5, which ust be respected b/ the courts. +owever, as e"pressl/ enunciated in =eutsche 6esellschaft, this deter ination b/ the <#6, or b/ the <6CC for that atter, does not inspire the sa e degree of confidence as a =9A certification. Even with a =9A certification, however, it ust be re e bered that this Court is not precluded fro a0ing an in.uir/ into the intrinsic correctness of such certification. =. An agree ent to sub it an/ dispute to arbitration a/ be construed as an i plicit waiver of i unit/ fro suit. -n the Fnited #tates, the 9oreign #overeign unities Act of '(&3 provides for a waiver b/ i plication of state i unit/. -n the said law, the agree ent to sub it disputes to arbitration in a foreign countr/ is construed as an i plicit waiver of i unit/ fro suit. Although there is no si ilar law in the Philippines, there is reason to appl/ the legal reasoning behind the waiver in this case. !he Conditions of Contract,): which is an integral part of the Contract Agree ent,)( states> 22. #E!!BEMEN! <9 =-#PF!E# AN= ARB-!RA!-<N 22.'. A icable #ettle ent Both parties shall atte pt to a icabl/ settle all disputes or controversies arising fro this Contract before the co ence ent of arbitration. 22.$. Arbitration All disputes or controversies arising fro this Contract which cannot be settled between the E plo/er and the Contractor shall be sub itted to

arbitration in accordance with the FNC-!RAB Arbitration Rules at present in force and as a/ be a ended b/ the rest of this Clause. !he appointing authorit/ shall be +ong ,ong -nternational Arbitration Center. !he place of arbitration shall be in +ong ,ong at +ong ,ong -nternational Arbitration Center 4+,-AC5. Fnder the above provisions, if an/ dispute arises between Northrail and CNME6, both parties are bound to sub it the atter to the +,-AC for arbitration. -n case the +,-AC a0es an arbitral award in favor of Northrail, its enforce ent in the Philippines would be subject to the #pecial Rules on Alternative =ispute Resolution 4#pecial Rules5. Rule '2 thereof provides for the Recognition and Enforce ent of a 9oreign Arbitral Award. Fnder Rules '2.$ and '2.2 of the #pecial Rules, the part/ to arbitration wishing to have an arbitral award recogni1ed and enforced in the Philippines ust petition the proper regional trial court 4a5 where the assets to be attached or levied upon is located? 4b5 where the acts to be enjoined are being perfor ed? 4c5 in the principal place of business in the Philippines of an/ of the parties? 4d5 if an/ of the parties is an individual, where an/ of those individuals resides? or 4e5 in the National Capital *udicial Region. 9ro all the foregoing, it is clear that CNME6 has agreed that it will not be afforded i unit/ fro suit. !hus, the courts have the co petence and jurisdiction to ascertain the validit/ of the Contract Agree ent. Seco"# 1007e< -3et3er t3e Co"tr!ct $2ree)e"t 10 !" e4ec7t1(e !2ree)e"t Article $4'5 of the Eienna Convention on the Baw of !reaties 4Eienna Convention5 defines a treat/ as follows> CADn international agree ent concluded between #tates in written for and governed b/ international law, whether e bodied in a single instru ent or in two or ore related instru ents and whatever its particular designation. -n !ayan 5una v. +omulo, this Court held that an e"ecutive agree ent is si ilar to a treat/, e"cept that the for er 4a5 does not re.uire legislative concurrence? 4b5 is usuall/ less for al? and 4c5 deals with a narrower range of subject atters.%; =espite these differences, to be considered an e"ecutive agree ent, the following three re.uisites provided under the Eienna Convention ust nevertheless concur> 4a5 the agree ent ust be between states? 4b5 it ust be written? and 4c5 it ust governed b/ international law. !he first and the third re.uisites do not obtain in the case at bar. ). /56G is neither a government nor a government agency. !he Contract Agree ent was not concluded between the Philippines and China, but between Northrail and CNME6.%' B/ the ter s of the Contract Agree ent, Northrail is a govern entAowned or Acontrolled corporation, while CNME6 is a corporation dul/ organi1ed and created under the laws of the PeopleRs Republic of China.%$ !hus, both Northrail and CNME6 entered into the Contract Agree ent as entities with personalities distinct and separate fro the Philippine and Chinese govern ents, respectivel/.

Neither can it be said that CNME6 acted as agent of the Chinese govern ent. As previousl/ discussed, the fact that A b. Gang, in his letter dated ' <ctober $;;2,%2 described CNME6 as a @state corporation@ and declared its designation as the Pri ar/ Contractor in the Northrail Project did not ean it was to perfor sovereign functions on behalf of China. !hat label was onl/ descriptive of its nature as a stateAowned corporation, and did not preclude it fro engaging in purel/ co ercial or proprietar/ ventures. !. The ontract )greement is to be governed by #hilippine law. Article $ of the Conditions of Contract,%) which under Article '.' of the Contract Agree ent is an integral part of the latter, states> APPB-CABBE BAG AN= 6<EERN-N6 BAN6FA6E !he contract shall in all respects be read and construed in accordance with the laws of the Philippines. !he contract shall be written in English language. All correspondence and other docu ents pertaining to the Contract which are e"changed b/ the parties shall be written in English language. #ince the Contract Agree ent e"plicitl/ provides that Philippine law shall be applicable, the parties have effectivel/ conceded that their rights and obligations thereunder are not governed b/ international law. -t is therefore clear fro the foregoing reasons that the Contract Agree ent does not parta0e of the nature of an e"ecutive agree ent. -t is erel/ an ordinar/ co ercial contract that can be .uestioned before the local courts. G+ERE9<RE, the instant Petition is %ENIE%. Petitioner China National Machiner/ 8 E.uip ent Corp. 46roup5 is not entitled to i unit/ fro suit, and the Contract Agree ent is not an e"ecutive agree ent. CNME6Rs pra/er for the issuance of a !R< andIor Grit of Preli inar/ -njunction is =EN-E= for being oot and acade ic. !his case is REMAN=E= to the Regional !rial Court of Ma0ati, Branch ')%, for further proceedings as regards the validit/ of the contracts subject of Civil Case No. ;3A$;2. No pronounce ent on costs of suit. #< <R=ERE=.