FIRST DIVISION

[G.R. No. 160453. November 12, 2012.]

REPUBLIC OF THE PHILIPPINES, petitioner, vs. ARCADIO
IVAN A. SANTOS III, and ARCADIO C. SANTOS,
JR., respondents.
DECISION
BERSAMIN, J p:
By law, accretion the gradual and imperceptible deposit made through the
effects of the current of the water belongs to the owner of the land adjacent to
the banks of rivers where it forms. The drying up of the river is not accretion.
Hence, the dried-up river bed belongs to the State as property of public
dominion, not to the riparian owner, unless a law vests the ownership in some
other person.
Antecedents
Alleging continuous and adverse possession of more than ten years, respondent
Arcadio Ivan A. Santos III (Arcadio Ivan) applied on March 7, 1997 for the
registration of Lot 4998-B (the property) in the Regional Trial Court (RTC) in
Paraaque City. The property, which had an area of 1,045 square meters, more
or less, was located in Barangay San Dionisio, Paraaque City, and was
bounded in the Northeast by Lot 4079 belonging to respondent Arcadio
C. Santos, Jr. (Arcadio, Jr.), in the Southeast by the Paraaque River, in the
Southwest by an abandoned road, and in the Northwest by Lot 4998-A also
owned by Arcadio Ivan. 1
On May 21, 1998, Arcadio Ivan amended his application for land registration to
include Arcadio, Jr. as his co-applicant because of the latter's co-ownership of
the property. He alleged that the property had been formed through accretion
and had been in their joint open, notorious, public, continuous and adverse
possession for more than 30 years. 2aICHEc
The City of Paraaque (the City) opposed the application for land registration,
stating that it needed the property for its flood control program; that the property
was within the legal easement of 20 meters from the river bank; and that
assuming that the property was not covered by the legal easement, title to the
property could not be registered in favor of the applicants for the reason that the
property was an orchard that had dried up and had not resulted from accretion. 3
Ruling of the RTC
On May 10, 2000, 4 the RTC granted the application for land registration,
disposing:
WHEREFORE, the Court hereby declares the applicants, ARCADIO
IVAN A. SANTOS, III and ARCADIO C. SANTOS, JR., both Filipinos and
of legal age, as the TRUE and ABSOLUTE OWNERS of the land being
applied for which is situated in the Barangay of San Dionisio, City of
Paraaque with an area of one thousand forty five (1045) square meters
more or less and covered by Subdivision Plan Csd-00-000343, being a
portion of Lot 4998, Cad. 299, Case 4, Paraaque Cadastre, LRC Rec.
No. and orders the registration of Lot 4998-B in their names with the
following technical description, to wit:
xxx xxx xxx
Once this Decision became (sic) final and executory, let the
corresponding Order for the Issuance of the Decree be issued.
SO ORDERED.
The Republic, through the Office of the Solicitor General (OSG), appealed. THIAaD
Ruling of the CA
In its appeal, the Republic ascribed the following errors to the RTC, 5 to wit:
I
THE TRIAL COURT ERRED IN RULING THAT THE PROPERTY
SOUGHT TO BE REGISTERED IS AN ACCRETION TO THE
ADJOINING PROPERTY OWNED BY APPELLEES DESPITE THE
ADMISSION OF APPELLEE ARCADIO C. SANTOS JR. THAT THE
SAID PROPERTY WAS NOT FORMED AS A RESULT OF THE
GRADUAL FILLING UP OF SOIL THROUGH THE CURRENT OF THE
RIVER.
II
THE TRIAL COURT ERRED IN GRANTING THE APPLICATION FOR
LAND REGISTRATION DESPITE APPELLEE'S FAILURE TO
FORMALLY OFFER IN EVIDENCE AN OFFICIAL CERTIFICATION
THAT THE SUBJECT PARCEL OF LAND IS ALIENABLE AND
DISPOSABLE.
III
THE TRIAL COURT ERRED IN RULING THAT APPELLEES HAD
SUFFICIENTLY ESTABLISHED THEIR CONTINUOUS, OPEN, PUBLIC
AND ADVERSE OCCUPATION OF THE SUBJECT PROPERTY FOR A
PERIOD OF MORE THAN THIRTY (30) YEARS.
On May 27, 2003, the CA affirmed the RTC. 6
The Republic filed a motion for reconsideration, but the CA denied the motion on
October 20, 2003. 7 HAICET
Issues
Hence, this appeal, in which the Republic urges that: 8
I
RESPONDENTS' CLAIM THAT THE SUBJECT PROPERTY IS AN
ACCRETION TO THEIR ADJOINING LAND THAT WOULD ENTITLE
THEM TO REGISTER IT UNDER ARTICLE 457 OF THE NEW CIVIL
CODE IS CONTRADICTED BY THEIR OWN EVIDENCE.
II
ASSUMING THAT THE LAND SOUGHT TO BE REGISTERED WAS
"PREVIOUSLY A PART OF THE PARAAQUE RIVER WHICH
BECAME AN ORCHARD AFTER IT DRIED UP," THE REGISTRATION
OF SAID PROPERTY IN FAVOR OF RESPONDENTS CANNOT BE
ALTERNATIVELY JUSTIFIED UNDER ARTICLE 461 OF THE CIVIL
CODE.
III
THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN
NOT RULING THAT THE FAILURE OF RESPONDENTS TO
FORMALLY OFFER IN EVIDENCE AN OFFICIAL CERTIFICATION
THAT THE SUBJECT PROPERTY IS ALIENABLE AND DISPOSABLE
IS FATAL TO THEIR APPLICATION FOR LAND REGISTRATION.
IV
THE FINDING OF THE COURT OF APPEALS THAT RESPONDENTS
HAVE CONTINUOUSLY, OPENLY, PUBLICLY AND ADVERSELY
OCCUPIED THE SUBJECT PROPERTY FOR MORE THAN THIRTY
(30) YEARS IS NOT SUPPORTED BY WELL-NIGH
INCONTROVERTIBLE EVIDENCE. HSDIaC
To be resolved are whether or not Article 457 of the Civil Code was applicable
herein; and whether or not respondents could claim the property by virtue of
acquisitive prescription pursuant to Section 14 (1) of Presidential Decree No.
1529 (Property Registration Decree).
Ruling
The appeal is meritorious.
I.
The CA grossly erred in applying Article 457
of the Civil Code to respondents' benefit
Article 457 of the Civil Code provides that "(t)o the owners of lands adjoining the
banks of rivers belong the accretion which they gradually receive from the effects
of the currents of the waters."
In ruling for respondents, the RTC pronounced as follows:
On the basis of the evidence presented by the applicants, the Court finds
that Arcadio Ivan A. Santos III and Arcadio C. Santos, Jr., are the
owners of the land subject of this application which was previously a part
of the Paraaque River which became an orchard after it dried up and
further considering that Lot 4 which adjoins the same property is owned
by applicant, Arcadio C. Santos, Jr., after it was obtained by him through
inheritance from his mother, Concepcion Cruz, now deceased.
Conformably with Art. 457 of the New Civil Code, it is provided that:
"Article 457. To the owners of the lands adjoining the bank of
rivers belong the accretion which they gradually receive from the
effects of the current of the waters." 9 AaSTIH
The CA upheld the RTC's pronouncement, holding:
It could not be denied that "to the owners of the lands adjoining the
banks of rivers belong the accretion which they gradually receive from
the effects of the current of the waters" (Article 457 New Civil Code) as
in this case, Arcadio Ivan Santos III and Arcadio Santos, Jr., are the
owners of the land which was previously part of the Paraaque River
which became an orchard after it dried up and considering that Lot 4
which adjoins the same property is owned by the applicant which was
obtained by the latter from his mother (Decision, p. 3; p. 38 Rollo). 10
The Republic submits, however, that the application by both lower courts of
Article 457 of the Civil Code was erroneous in the face of the fact that
respondents' evidence did not establish accretion, but instead the drying up of
the Paraaque River.
The Republic's submission is correct.
Respondents as the applicants for land registration carried the burden of proof to
establish the merits of their application by a preponderance of evidence, by
which is meant such evidence that is of greater weight, or more convincing than
that offered in opposition to it. 11 They would be held entitled to claim the property
as their own and apply for its registration under the Torrens system only if they
established that, indeed, the property was an accretion to their land.
Accretion is the process whereby the soil is deposited along the banks of
rivers. 12 The deposit of soil, to be considered accretion, must be: (a) gradual and
imperceptible; (b)made through the effects of the current of the water;
and (c) taking place on land adjacent to the banks of rivers. 13 Accordingly,
respondents should establish the concurrence of the elements of accretion to
warrant the grant of their application for land registration. DAcaIE
However, respondents did not discharge their burden of proof. They did not show
that the gradual and imperceptible deposition of soil through the effects of the
current of the river had formed Lot 4998-B. Instead, their evidence revealed that
the property was the dried-up river bed of the Paraaque River, leading both the
RTC and the CA to themselves hold that Lot 4998-B was "the land which was
previously part of the Paraaque River . . . (and) became an orchard after it dried
up."
Still, respondents argue that considering that Lot 4998-B did not yet exist when
the original title of Lot 4 was issued in their mother's name in 1920, and that Lot
4998-B came about only thereafter as the land formed between Lot 4 and the
Paraaque River, the unavoidable conclusion should then be that soil and
sediments had meanwhile been deposited near Lot 4 by the current of the
Paraaque River, resulting in the formation of Lot 4998-B.
The argument is legally and factually groundless. For one, respondents thereby
ignore that the effects of the current of the river are not the only cause of the
formation of land along a river bank. There are several other causes, including
the drying up of the river bed. The drying up of the river bed was, in fact, the
uniform conclusion of both lower courts herein. In other words, respondents did
not establish at all that the increment of land had formed from the gradual and
imperceptible deposit of soil by the effects of the current. Also, it seems to be
highly improbable that the large volume of soil that ultimately comprised the dry
land with an area of 1,045 square meters had been deposited in a gradual and
imperceptible manner by the current of the river in the span of about 20 to 30
years the span of time intervening between 1920, when Lot 4 was registered in
the name of their deceased parent (at which time Lot 4998-B was not yet in
existence) and the early 1950s (which respondents' witness Rufino Allanigue
alleged to be the time when he knew them to have occupied Lot 4988-B). The
only plausible explanation for the substantial increment was that Lot 4988-B was
the dried-up bed of the Paraaque River. Confirming this explanation was
Arcadio, Jr.'s own testimony to the effect that the property was previously a part
of the Paraaque River that had dried up and become an orchard. AaITCH
We observe in this connection that even Arcadio, Jr.'s own Transfer Certificate of
Title No. 44687 confirmed the uniform conclusion of the RTC and the CA that Lot
4998-B had been formed by the drying up of the Paraaque River. Transfer
Certificate of Title No. 44687 recited that Lot 4 of the consolidated subdivision
plan Pcs-13-002563, the lot therein described, was bounded "on the SW along
line 5-1 by Dried River Bed." 14 That boundary line of "SW along line 5-1"
corresponded with the location of Lot 4998-B, which was described as "bounded
by Lot 4079 Cad. 299, (Lot 1, Psu-10676), in the name of respondent
Arcadio Santos, Jr. (Now Lot 4, Psd-13-002563) in the Northeast." 15
The RTC and the CA grossly erred in treating the dried-up river bed as an
accretion that became respondents' property pursuant to Article 457 of the Civil
Code. That land was definitely not an accretion. The process of drying up of a
river to form dry land involved the recession of the water level from the river
banks, and the dried-up land did not equate to accretion, which was the gradual
and imperceptible deposition of soil on the river banks through the effects of the
current. In accretion, the water level did not recede and was more or less
maintained. Hence, respondents as the riparian owners had no legal right to
claim ownership of Lot 4998-B. Considering that the clear and categorical
language of Article 457 of the Civil Code has confined the provision only to
accretion, we should apply the provision as its clear and categorical language
tells us to. Axiomatic it is, indeed, that where the language of the law is clear and
categorical, there is no room for interpretation; there is only room for
application. 16 The first and fundamental duty of courts is then to apply the law. 17
The State exclusively owned Lot 4998-B and may not be divested of its right of
ownership. Article 502 of the Civil Code expressly declares that rivers and their
natural beds are public dominion of the State. 18 It follows that the river beds that
dry up, like Lot 4998-B, continue to belong to the State as its property of public
dominion, unless there is an express law that provides that the dried-up river
beds should belong to some other person. 19 aSAHCE
II
Acquisitive prescription was
not applicable in favor of respondents
The RTC favored respondents' application for land registration covering Lot
4998-B also because they had taken possession of the property continuously,
openly, publicly and adversely for more than 30 years based on their
predecessor-in-interest being the adjoining owner of the parcel of land along the
river bank. It rendered the following ratiocination, viz.: 20
In this regard, the Court found that from the time the applicants became
the owners thereof, they took possession of the same property
continuously, openly, publicly and adversely for more than thirty (30)
years because their predecessors-in-interest are the adjoining owners of
the subject parcel of land along the river bank. Furthermore, the fact that
applicants paid its realty taxes, had it surveyed per subdivision plan Csd-
00-000343 (Exh. "L") which was duly approved by the Land
Management Services and the fact that Engr. Chito B. Cainglet, OIC-
Chief, Surveys Division Land Registration Authority, made a Report that
the subject property is not a portion of the Paraaque River and that it
does not fall nor overlap with Lot 5000, thus, the Court opts to grant the
application.
Finally, in the light of the evidence adduced by the applicants in this case
and in view of the foregoing reports of the Department of Agrarian
Reforms, Land Registration Authority and the Department of
Environment and Natural Resources, the Court finds and so holds that
the applicants have satisfied all the requirements of law which are
essential to a government grant and is, therefore, entitled to the
issuance of a certificate of title in their favor. So also, oppositor failed to
prove that the applicants are not entitled thereto, not having presented
any witness. TEcCHD
In fine, the application is GRANTED.
As already mentioned, the CA affirmed the RTC.
Both lower courts erred.
The relevant legal provision is Section 14 (1) of Presidential Decree No.
1529 (Property Registration Decree), which pertinently states:
Section 14.Who may apply. The following persons may file in the
proper [Regional Trial Court] an application for registration of title to land,
whether personally or through their duly authorized representatives:
(1)Those who by themselves or through their predecessors-in-interest
have been in open, continuous, exclusive and notorious possession
and occupation ofalienable and disposable lands of the public
domain under a bona fide claim of ownership since June 12, 1945, or
earlier.
xxx xxx xxx
Under Section 14 (1), then, applicants for confirmation of imperfect title must
prove the following, namely: (a) that the land forms part of the disposable and
alienable agricultural lands of the public domain; and (b) that they have been in
open, continuous, exclusive, and notorious possession and occupation of the
land under a bona fide claim of ownership either since time immemorial or since
June 12, 1945. 21
The Republic assails the findings by the lower courts that respondents "took
possession of the same property continuously, openly, publicly and adversely for
more than thirty (30) years." 22 ICTacD
Although it is well settled that the findings of fact of the trial court, especially
when affirmed by the CA, are accorded the highest degree of respect, and
generally will not be disturbed on appeal, with such findings being binding and
conclusive on the Court, 23 the Court has consistently recognized exceptions to
this rule, including the following, to wit: (a) when the findings are grounded
entirely on speculation, surmises, or conjectures; (b) when the inference made is
manifestly mistaken, absurd, or impossible; (c) when there is grave abuse of
discretion; (d) when the judgment is based on a misapprehension of
facts; (e) when the findings of fact are conflicting; (f) when in making its findings
the CA went beyond the issues of the case, or its findings are contrary to the
admissions of both the appellant and the appellee; (g) when the findings are
contrary to those of the trial court; (h) when the findings are conclusions without
citation of specific evidence on which they are based; (i) when the facts set forth
in the petition as well as in the petitioner's main and reply briefs are not disputed
by respondent; and (j) when the findings of fact are premised on the supposed
absence of evidence and contradicted by the evidence on record. 24
Here, the findings of the RTC were obviously grounded on speculation, surmises,
or conjectures; and that the inference made by the RTC and the CA was
manifestly mistaken, absurd, or impossible. Hence, the Court should now review
the findings.
In finding that respondents had been in continuous, open, public and adverse
possession of the land for more than 30 years, the RTC declared:
In this regard, the Court found that from the time the applicant became
the owners thereof, they took possession of the same property
continuously, openly, publicly and adversely for more than thirty years
because their predecessor in interest are the adjoining owners of the
subject parcel of land along the river banks. Furthermore, the fact that
the applicant paid its realty taxes, had it surveyed per subdivision plan
Csd-00-000343 (Exh. "L") which was duly approved by the Land
Management Services and the fact that Engr. Chito B. Cainglet, OIC
Chief, Surveys Division Land Registration Authority, made a Report that
the subject property is not a portion of the Paraaque River and that it
does not fall nor overlap with Lot 5000, thus, the Court opts to grant the
application.
The RTC apparently reckoned respondents' period of supposed possession to be
"more than thirty years" from the fact that "their predecessors in interest are the
adjoining owners of the subject parcel of land." Yet, its decision nowhere
indicated what acts respondents had performed showing their possession of the
property "continuously, openly, publicly and adversely" in that length of time. The
decision mentioned only that they had paid realty taxes and had caused the
survey of the property to be made. That, to us, was not enough to justify the
foregoing findings, because, firstly, the payment of realty taxes did not
conclusively prove the payor's ownership of the land the taxes were paid
for, 25 the tax declarations and payments being mere indicia of a claim of
ownership; 26 and, secondly, the causing of surveys of the property involved was
not itself an of continuous, open, public and adverse possession.
The principle that the riparian owner whose land receives the gradual deposits of
soil does not need to make an express act of possession, and that no acts of
possession are necessary in that instance because it is the law itself that
pronounces the alluvium to belong to the riparian owner from the time that the
deposit created by the current of the water becomes manifest 27 has no
applicability herein. This is simply because Lot 4998-B was not formed through
accretion. Hence, the ownership of the land adjacent to the river bank by
respondents' predecessor-in-interest did not translate to possession of Lot 4998-
B that would ripen to acquisitive prescription in relation to Lot 4998-B.
On the other hand, the claim of thirty years of continuous, open, public and
adverse possession of Lot 4998-B was not even validated or preponderantly
established. The admission of respondents themselves that they declared the
property for taxation purposes only in 1997 and paid realty taxes only from
1999 28 signified that their alleged possession would at most be for only nine
years as of the filing of their application for land registration on March 7, 1997. SIaHTD
Yet, even conceding, for the sake of argument, that respondents possessed Lot
4998-B for more than thirty years in the character they claimed, they did not
thereby acquire the land by prescription or by other means without any
competent proof that the land was already declared as alienable and disposable
by the Government. Absent that declaration, the land still belonged to the State
as part of its public dominion.
Article 419 of the Civil Code distinguishes property as being either of public
dominion or of private ownership. Article 420 of the Civil Code lists the properties
considered as part of public dominion, namely: (a) those intended for public use,
such as roads, canals, rivers, torrents, ports and bridges constructed by the
State, banks, shores, roadsteads, and others of similar character; and (b) those
which belong to the State, without being for public use, and are intended for
some public service or for the development of the national wealth. As earlier
mentioned, Article 502 of the Civil Code declares that rivers and their natural
beds are of public dominion.
Whether the dried-up river bed may be susceptible to acquisitive prescription or
not was a question that the Court resolved in favor of the State in Celestial v.
Cachopero, 29 a case involving the registration of land found to be part of a dried-
up portion of the natural bed of a creek. There the Court held:
As for petitioner's claim of ownership over the subject land, admittedly a
dried-up bed of the Salunayan Creek, based on (1) her alleged long term
adverse possession and that of her predecessor-in-interest, Marcelina
Basadre, even prior to October 22, 1966, when she purchased the
adjoining property from the latter, and (2) the right of accession under
Art. 370 of the Spanish Civil Code of 1889 and/or Article 461 of the Civil
Code, the same must fail.
Since property of public dominion is outside the commerce of man
and not susceptible to private appropriation and acquisitive
prescription, the adverse possession which may be the basis of a
grant of title in the confirmation of an imperfect title refers only to
alienable or disposable portions of the public domain. It is only after
the Government has declared the land to be alienable and disposable
agricultural land that the year of entry, cultivation and exclusive and
adverse possession can be counted for purposes of an imperfect title.
A creek, like the Salunayan Creek, is a recess or arm extending from a
river and participating in the ebb and flow of the sea. As such, under
Articles 420(1) and 502(1) of the Civil Code, the Salunayan Creek,
including its natural bed, is property of the public domain which is
not susceptible to private appropriation and acquisitive
prescription. And, absent any declaration by the government, that a
portion of the creek has dried-up does not, by itself, alter its
inalienable character. IcAaEH
xxx xxx xxx
Had the disputed portion of the Salunayan Creek dried up after the
present Civil Code took effect, the subject land would clearly not belong
to petitioner or her predecessor-in-interest since under the
aforementioned provision of Article 461, "river beds which are
abandoned through the natural change in the course of the waters ipso
facto belong to the owners of the land occupied by the new course," and
the owners of the adjoining lots have the right to acquire them only after
paying their value.
And both Article 370 of the Old Code and Article 461 of the present Civil
Code are applicable only when "[r]iver beds are abandoned through the
natural change in the course of the waters." It is uncontroverted,
however, that, as found by both the Bureau of Lands and the DENR
Regional Executive Director, the subject land became dry as a result of
the construction an irrigation canal by the National Irrigation
Administration. Thus, in Ronquillo v. Court of Appeals, this Court held:
The law is clear and unambiguous. It leaves no room for
interpretation. Article 370 applies only if there is a natural
change in the course of the waters. The rules on alluvion do
not apply to man-made or artificial accretions nor to
accretions to lands that adjoin canals or esteros or artificial
drainage systems.Considering our earlier finding that the
dried-up portion of Estero Calubcub was actually caused by
the active intervention of man, it follows that Article 370 does
not apply to the case at bar and, hence, the Del Rosarios
cannot be entitled thereto supposedly as riparian owners.
The dried-up portion of Estero Calubcub should thus be
considered as forming part of the land of the public domain
which cannot be subject to acquisition by private ownership.
. . . (Emphasis supplied) SEAHcT
Furthermore, both provisions pertain to situations where there has
been a change in the course of a river, not where the river simply
dries up. In the instant Petition, it is not even alleged that the Salunayan
Creek changed its course. In such a situation, commentators are of
the opinion that the dry river bed remains property of public
dominion. (Bold emphases supplied)
Indeed, under the Regalian doctrine, all lands not otherwise appearing to be
clearly within private ownership are presumed to belong to the State. 30 No public
land can be acquired by private persons without any grant, express or implied,
from the Government. It is indispensable, therefore, that there is a showing of a
title from the State. 31Occupation of public land in the concept of owner, no
matter how long, cannot ripen into ownership and be registered as a title. 32
Subject to the exceptions defined in Article 461 of the Civil Code (which declares
river beds that are abandoned through the natural change in the course of the
waters as ipso facto belonging to the owners of the land occupied by the new
course, and which gives to the owners of the adjoining lots the right to acquire
only the abandoned river beds not ipso facto belonging to the owners of the land
affected by the natural change of course of the waters only after paying their
value), all river beds remain property of public dominion and cannot be acquired
by acquisitive prescription unless previously declared by the Government to be
alienable and disposable. Considering that Lot 4998-B was not shown to be
already declared to be alienable and disposable, respondents could not be
deemed to have acquired the property through prescription.
Nonetheless, respondents insist that the property was already classified as
alienable and disposable by the Government. They cite as proof of the
classification as alienable and disposable the following notation found on the
survey plan, to wit: 33 aSIHcT
NOTE
ALL CORNERS NOT OTHERWISE DESCRIBED ARE OLD BL CYL.
CONC. MONS 15 X 60CM
All corners marked PS are cyl. conc. mons 15 x 60 cm
Surveyed in accordance with Survey Authority NO. 007604-48 of the
Regional Executive Director issued by the CENR-OFFICER dated Dec.
2, 1996.
This survey is inside L.C. Map No. 2623, Proj. No. 25 classified as
alienable/disposable by the Bureau of Forest Dev't. on Jan. 3, 1968.
Lot 4998-A = Lot 5883} Cad 299
Lot 4998-B = Lot 5884} Paraaque Cadastre.
Was the notation on the survey plan to the effect that Lot 4998-B was "inside" the
map "classified as alienable/disposable by the Bureau of Forest Development on
03 Jan. 1968" sufficient proof of the property's nature as alienable and
disposable public land?
To prove that the land subject of an application for registration is alienable, an
applicant must conclusively establish the existence of a positive act of the
Government, such as a presidential proclamation, executive order, administrative
action, investigation reports of the Bureau of Lands investigator, or a legislative
act or statute. Until then, the rules on confirmation of imperfect title do not apply.
As to the proofs that are admissible to establish the alienability and disposability
of public land, we said in Secretary of the Department of Environment and
Natural Resources v. Yap 34 that: cCaATD
The burden of proof in overcoming the presumption of State
ownership of the lands of the public domain is on the person
applying for registration (or claiming ownership), who must prove that
the land subject of the application is alienable or disposable. To
overcome this presumption, incontrovertible evidence must be
established that the land subject of the application (or claim) is
alienable or disposable. There must still be a positive act declaring
land of the public domain as alienable and disposable. To prove that
the land subject of an application for registration is alienable, the
applicant must establish the existence of a positive act of the
government such as a presidential proclamation or an executive
order; an administrative action; investigation reports of Bureau of
Lands investigators; and a legislative act or a statute. The applicant
may also secure a certification from the government that the land
claimed to have been possessed for the required number of years
is alienable and disposable.
In the case at bar, no such proclamation, executive order,
administrative action, report, statute, or certification was presented
to the Court. The records are bereft of evidence showing that, prior to
2006, the portions of Boracay occupied by private claimants were
subject of a government proclamation that the land is alienable and
disposable. Absent such well-nigh incontrovertible evidence, the
Court cannot accept the submission that lands occupied by private
claimants were already open to disposition before 2006. Matters of
land classification or reclassification cannot be assumed. They call
for proof." (Emphasis supplied)
In Menguito v. Republic, 35 which we reiterated in Republic v. Sarmiento, 36 we
specifically resolved the issue of whether the notation on the survey plan was
sufficient evidence to establish the alienability and disposability of public land, to
wit:
To prove that the land in question formed part of the alienable and
disposable lands of the public domain, petitioners relied on the
printed words which read: "This survey plan is inside Alienable and
Disposable Land Area, Project No. 27-B as per L.C. Map No.
2623, certified by the Bureau of Forestry on January 3, 1968,"
appearing on Exhibit "E" (Survey Plan No. Swo-13-000227).
This proof is not sufficient. Section 2, Article XII of the 1987
Constitution, provides: "All lands of the public domain, waters, minerals,
coal, petroleum, and other mineral oils, all forces of potential energy,
fisheries, forests or timber, wildlife, flora and fauna, and other natural
resources are owned by the State. . . . ."
For the original registration of title, the applicant (petitioners in this
case) must overcome the presumption that the land sought to be
registered forms part of the public domain. Unless public land is
shown to have been reclassified or alienated to a private person by the
State, it remains part of the inalienable public domain. Indeed,
"occupation thereof in the concept of owner, no matter how long, cannot
ripen into ownership and be registered as a title." To overcome such
presumption, incontrovertible evidence must be shown by the applicant.
Absent such evidence, the land sought to be registered remains
inalienable. HISAET
In the present case, petitioners cite a surveyor-geodetic engineer's
notation in Exhibit "E" indicating that the survey was inside alienable and
disposable land. Such notation does not constitute a positive
government act validly changing the classification of the land in
question. Verily, a mere surveyor has no authority to reclassify
lands of the public domain. By relying solely on the said surveyor's
assertion, petitioners have not sufficiently proven that the land in
question has been declared alienable. (Emphasis supplied)
In Republic v. T.A.N. Properties, Inc., 37 we dealt with the sufficiency of the
certification by the Provincial Environmental Officer (PENRO) or Community
Environmental Officer (CENRO) to the effect that a piece of public land was
alienable and disposable in the following manner, viz.:
. . . it is not enough for the PENRO or CENRO to certify that a land
is alienable and disposable. The applicant for land registration
must prove that the DENR Secretary had approved the land
classification and released the land of the public domain as
alienable and disposable, and that the land subject of the
application for registration falls within the approved area per
verification through survey by the PENRO or CENRO. In addition,
the applicant for land registration must present a copy of the original
classification approved by the DENR Secretary and certified as a true
copy by the legal custodian of the official records. These facts must be
established to prove that the land is alienable and disposable.
Respondent failed to do so because the certifications presented by
respondent do not, by themselves, prove that the land is alienable
and disposable.
Only Torres, respondent's Operations Manager, identified the
certifications submitted by respondent. The government officials who
issued the certifications were not presented before the trial court to
testify on their contents. The trial court should not have accepted the
contents of the certifications as proof of the facts stated therein. Even if
the certifications are presumed duly issued and admissible in evidence,
they have no probative value in establishing that the land is alienable
and disposable.
xxx xxx xxx
The CENRO and Regional Technical Director, FMS-DENR, certifications
do not prove that Lot 10705-B falls within the alienable and disposable
land as proclaimed by the DENR Secretary. Such government
certifications do not, by their mere issuance, prove the facts stated
therein. Such government certifications may fall under the class of
documents contemplated in the second sentence of Section 23 of Rule
132. As such, the certifications are prima facie evidence of their due
execution and date of issuance but they do not constitute prima
facie evidence of the facts stated therein. (Emphasis supplied) ECSaAc
These rulings of the Court indicate that the notation on the survey plan of Lot
4998-B, Cad-00-000343 to the effect that the "survey is inside a map classified
as alienable/disposable by the Bureau of Forest Dev't" did not prove that Lot
4998-B was already classified as alienable and disposable. Accordingly,
respondents could not validly assert acquisitive prescription of Lot 4988-B.
WHEREFORE, the Court REVERSES and SETS ASIDE the decision of the
Court of Appeals promulgated on May 27, 2003; DISMISSES the application for
registration of Arcadio C. Santos, Jr. and Arcadio Ivan S. Santos III respecting
Lot 4998-B with a total area of 1,045 square meters, more or less, situated in
Barangay San Dionisio, Paraaque City, Metro Manila; and DECLARES Lot
4998-B as exclusively belonging to the State for being part of the dried-up bed of
the Paraaque River.
Respondents shall pay the costs of suit.
SO ORDERED.
Sereno, C.J., Leonardo-de Castro, Villarama, Jr. and Reyes, JJ., concur.
||| (Republic v. Santos III, G.R. No. 160453, November 12, 2012)

EN BANC
[G.R. No. L-13250. May 30, 1962.]
THE COLLECTOR OF INTERNAL REVENUE, petitioner, vs. ANT
ONIO CAMPOS RUEDA, respondent.
Solicitor General for petitioner.
Ramirez & Ortigas for respondent.
R E S O L U T I O N
PAREDES, J p:
Doa Maria de la Estrella Soriano Vda. de Cerdeira, (Maria Cerdeira, for short),
died in Tangier, (North Africa), on January 2, 1955. At the time of her demise,
she was married to a Spanish Citizen and a permanent resident of Tangier from
1931 up to her death, on January 2, 1955. She left properties in Tangier as well
as in the Philippines. Among the properties in the Philippines are several
parcels of land and many shares of stock, accounts receivable and other
intangible personal properties. The real estate situated in the Philippines had a
market value of P1,109,483.50 and her personal properties also in the
Philippines had a value of P396,308.90. On the real estate the respondent
AntonioCampos Rueda, as administrator of her estate, paid the
sum of P111,582.00 as estate tax and the sum of P151,791.48 as inheritance
tax, on the transfer of her real properties in the Philippines, but refused to pay the
corresponding deficiency estate and inheritance taxes due on the transfer of her
intangible personal properties, claiming that the estate is exempt from the
payment of said taxes pursuant to Section 122 of the Tax Code.
The Collector of Internal Revenue in a decision assessed the estate of the
deceased, as deficiency estate and inheritance taxes, the sum of P161,874.95
including interest and penalties, on the transfer of intangible personal
properties of Maria Cerdeira. On appeal the Court of Tax Appeals reversed the
decision of the Collector, without costs, who elevated the case to Us for review,
alleging that the Court of Tax Appeals erred in holding that
(1)The testate estate of Maria Cerdeira is not liable for the
payment of deficiency estate and inheritance taxes in the
sum of P161,874.95;
(2)The international zone of Tangier, even if it is not recognized by
the Philippine Government as a state, could avail of the
reciprocal provisions of our Tax Code;
(3)The term "foreign country" in Section 122 of the Tax Code,
refers to a foreign government competent to levy taxes
without any consideration for theinternational status of said
government;
(4)There exists reciprocity between Tangier and Philippine Laws
on the matter of death taxes on intangible personal property;
(5)The certification Exhibits, D-1, G-1, Q-1, and T, considered
together, are sufficient proof on the non-liability of movable
property located in Tangier for inheritance tax properties.
The pertinent portion of Section 122, of the Tax Code, as amended by Section 6,
Rep. Act. No. 83, recites as follows:
"SEC. 122.Definitions. . . . Provided, however, That in the case of a
resident, the transmission or transfer of any intangible personal property,
regardless of its location, is subject to the taxes prescribed in this Title;
And provided, further, That no tax shall be collected under This Title in
respect of intangible personal property (a) if the decedent at the
time of his death was a resident of a foreign country which at the
time of his death did not impose a transfer tax or death tax of any
character in respect of intangible personal property of citizens of the
Philippines not residing in the foreign country, or (b) if the laws of the
foreign country of which the decedent was a resident at the time of his
death allow a similar exemption from transfer taxes or death
taxes of every character in respect of intangible personal property owned
by citizens of the Philippines not residing in that foreign country.
xxx xxx xxx"
In order to show the status of the law on the subject, in force or existing in
Tangier at the time of Maria Cerdeira's death in 1955, the respondent submitted
certificates, the contents of which are quoted hereunder
"Que las transmissiones hereditarias de bienes muebles situados en
Tanger, no estan sujetas a ningun impuesto sucesorio conforme al Dahir
del 15 de Mayo de 1925 y Ley del 30 de Enero de 1932, vigentes en la
Zona Internacional de Tanger, sea cualquiera la nacionalidad de los
intersesados en la sucesion (Exh. 'd-1')".
"Que conforme la ley del 30 de Enero de 1932, en relacion con el Dahir
de 15 de Mayo de 1925, al preceptuarse, que 'quedan sujetos al pago
del impuesto de derechos reales, establecido para las donaciones entre
vivos, las transmisiones de inmuebles por causa de muerte acontecida a
partir del 10 de Enero de 1932' deja como actos no sujetos a ningun
impuesto sucesorio, las transmisiones hereditarias de bienes muebles
radicantes en Tanger, sea cualquiera la nacionalidad de los interesados
en la sucesion (Exh. 'G-1')".
"Praise be to God, The undersigned do hereby certify that neither
Moroccan nor foreign legatees at Tangier and its province, in the
Sherifian State, are subject to any tax on movables, with
exception of real estate which is liable to inheritance tax by virtue of the
law of January 10, 1932, published in Official Bulletin No. 72 (Exh. 'Q-
1')".
"The law of January 30, 1932 modifying the Dahir of May 15, 1925
subjecting the transfer of real estate through deaths to the
payment of registration taxes, as ofJanuary 1, 1932, subjects to no
inheritance tax the successional transfers of movable property, whatever
may be the nationality of those interested in the succession (Exh. 'I')".
Exhibit D-1 is certified by the Register of Properties and Chief of the
Bureau of Taxes at Tangier; Exh. Q-1 by the Acting Administrator and Lands
Registrar at Tangier; Exhibit Q-1 by the Judge of the International Court at
Tangier and Exhibit T, by the Governor at the Province of Tangier.
While Section 122 of the Philippine Tax Code aforequoted speaks of "intangible
personal property" in both subdivisions (a) and (b); the alleged laws of Tangier
refer to "bienes muebles situados en Tanger", "bienes muebles radicantes en
Tanger" "movables" and "movable property". In order that this court may be able
to determine whether the alleged laws of Tangier grant the reciprocal tax
exemptions required by Section 122 of the Tax Code, and without, for the time
being, going into the merits of the issues raised by the petitioner-appellant, the
case is REMANDED to the Court of Tax Appeals for the reception of evidence or
proofs on whether or not the words "bienes muebles", "movables" and "movable
property" as used in the Tangier laws, include or embrace "intangible personal
property", as used in the Tax Code. No costs.
Padilla, Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L.,
Barrera and Dizon, JJ ., concur.
Bengzon, C . J ., on leave, took no part.
||| (Collector of Internal Revenue v. Rueda, G.R. No. L-13250, May 30, 1962)

THIRD DIVISION
[G.R. No. 143377. February 20, 2001.]
SHIPSIDE INCORPORATED, petitioner, vs. THE
HON. COURT OF APPEALS [Special Former Twelfth Division],
HON. REGIONAL TRIAL COURT, BRANCH 26 (San Fernando
City, La Union) & The REPUBLIC OF THE
PHILIPPINES, respondents.
Laogan Baeza & Llantino Law Offices for petitioner.
Solicitor General for respondents.
SYNOPSIS
Lots No. 1 and 4, covered by Original Certificate of Title No. 0-381 in the
name of Rafael Galvez, were sold by the latter to Filipina Mamaril, Cleopatra
Llana, Regina Bustos, and Erlinda Balatbat. On August 16, 1960, Mamaril, et al.
sold the same lots to Lepanto Consolidated Mining Company and the latter in
turn conveyed the property to ShipsideIncorporated, herein petitioner, on October
28, 1963, resulting in the issuance of new Transfer Certificate of Title No. T-57
10. Unknown to Lepanto Consolidated Mining Company, OCT No. 0-381 was
already declared null and void and was ordered cancelled by the
then Court of First Instance of La Union, in its order dated February 1, 1963. The
decision of the CFI became final and executory on October 23, 1973. On April
21, 1999, the Office of the Solicitor General, after being notified that the aforesaid
order remained unexecuted despite the writ of execution issued by the trial court,
filed a complaint for revival of judgment and cancellation of titles before the
Regional Trial Courtof San Fernando, La Union. Petitioner Shipside, Inc. moved
to dismiss the complaint, alleging, among others that the respondent Republic
was not the real party-in-interest and that the cause of action was already barred
by prescription. The trial court denied petitioner's motion to dismiss and its
motion for reconsideration was likewise turned down. Petitioner elevated the
matter to the Court of Appeals through petition for certiorari and prohibition.
The appeal court denied the petition as well as the motion for reconsideration.
Hence, the instant petition.
The Supreme Court granted the petition.
An action for revival of judgment must be brought within ten years from the time
said judgment becomes final. In the present case, the action for
revival of judgment was instituted only in 1999, or more than twenty-five (25)
years after the judgment had become final. Hence, the action is barred by
extinctive prescription.
While it is true that prescription does not run against the State, the same may not
be invoked by the government in this case since it was no longer interested in the
subject matter. While Camp Wallace may have belonged to the government at
the time Rafael Galvez's title was ordered cancelled in Land Registration Case
No. N-361, the same no longer holds true today. Section 2 of Proclamation No.
216, issued on July 27, 1993 provided for the transfer of all areas covered by
Wallace Air Station to the BCDA. With the transfer of Camp Wallace to the
BCDA, the government no longer has a right or interest to protect. Consequently,
the Republic was not a real party in interest and it may not institute the instant
action. Nor may it raise the defense of imprescriptibility, the same being
applicable only in cases where the government is a party in interest. Being the
owner of the areas covered by Camp Wallace, it was the BCDA, not the
Government, which stood to be benefited if the land covered by TCT No. T-5710
issued in the name ofpetitioner was cancelled.
SYLLABUS
1.COMMERCIAL LAW; CORPORATION CODE; CORPORATE POWERS;
POWER TO SUE AND BE SUED IS LODGED WITH THE
BOARD OF DIRECTORS; PHYSICAL ACT OFCORPORATION MAY BE
PERFORMED BY DULY AUTHORIZED NATURAL PERSONS. A corporation,
such as petitioner, has no power except those expressly conferred on it by the
Corporation Code and those that are implied or incidental to its existence. In turn,
a corporation exercises said powers through its board of directors and /or its duly
authorized officers and agents. Thus, it has been observed that the power of a
corporation to sue and be sued in any court is lodged with the board of directors
that exercises its corporate powers (Premium Marble Resources, Inc. v. CA, 264
SCRA 11 [1996]). In turn, physical acts of the corporation, like the
signing of documents, can be performed only by natural persons duly authorized
for the purpose by corporate by-laws or by a specific act of the board of directors.
2.REMEDIAL LAW; CIVIL PROCEDURE; VERIFICATION REQUIREMENT
DOES NOT RENDER PLEADING FATALLY DEFECTIVE. The Court has
consistently held that the requirement regarding verification of a pleading is
formal, not jurisdictional (Uy v. Land Bank, G.R. No. 136100, July 24, 2000).
Such requirement is simply a condition affecting the form of the pleading,
noncompliance with which does not necessarily render the pleading fatally
defective. Verification is simply intended to secure an assurance that the
allegations in the pleading are true and correct and not the product of the
imagination or a matter of speculation, and that the pleading is filed in good faith.
The court may order the correction of the pleading if verification is lacking or act
on the pleading although it is not verified, if the attending circumstances are such
that strict compliance with the rules may be dispensed with in order that the
ends of justice may thereby be served.
3.ID.; ID.; ID.; LACK OF CERTIFICATION AGAINST NON-FORUM SHOPPING
NOT CURABLE BY SUBMISSION THEREOF AFTER FILING OF PETITION; A
CERTIFICATION AGAINST FORUM SHOPPING SIGNED BY A PERSON ON
BEHALF OF THE CORPORATION MUST BE ACCOMPANIED BY PROOF
THAT THE SIGNATORY IS AUTHORIZED TO FILE THE PETITION. The
lack of certification against forum shopping is generally not curable by the
submission thereof after the filing of the petition. Section 5, Rule 45 of the 1997
Rules of Civil Procedure provides that the failure of the petitioner to submit the
required documents that should accompany the petition, including the
certification against forum shopping, shall be sufficient ground for the dismissal
thereof. The same rule applies to certifications against forum shopping signed by
a person on behalf of a corporation which are unaccompanied by proof that said
signatory is authorized to file a petition on behalf of the corporation.
4.ID.; ID.; ID.; CERTIFICATION AGAINST NON-FORUM SHOPPING; NON-
COMPLIANCE WITH THE REQUIREMENT, WHEN MAY BE EXCUSED; CASE
AT BAR. In certain exceptional circumstances, however, the Court has
allowed the belated filing of the certification. In Loyola v. Court of Appeals, et.
al. (245 SCRA 477 [1995]), the Courtconsidered the filing of the certification one
day after the filing of an election protest as substantial compliance with the
requirement. In Roadway Express, Inc. v. Court ofAppeals, et. al. (264 SCRA
696 [1996]), the Court allowed the filing of the certification 14 days before the
dismissal of the petition. In Uy v. Land Bank, supra, the Court had dismissed Uy's
petition for lack of verification and certification against non-forum shopping.
However, it subsequently reinstated the petition after Uy submitted a motion to
admit certification and non-forum shopping certification. In all these cases, there
were special circumstances or compelling reasons that justified the
relaxation of the rule requiring verification and certification on non-forum
shopping. In the instant case, the merits of petitioner's case should be
considered special circumstances or compelling reasons that justify tempering
the requirement in regard to the certificate of nonforum shopping. Moreover,
in Loyola, Roadway, and Uy, the Court excused non-compliance with the
requirement as to the certificate of non-forum shopping. With more reason should
we allow the instant petition since petitioner herein did submit a certification on
non forum shopping, failing only to show proof that the signatory was authorized
to do so. That petitioner subsequently submitted a secretary's certificate attesting
that Balbin was authorized to file an action on behalf of petitioner likewise
mitigates this oversight.
5.ID.; ID.; ID.; REQUIREMENT IS MANDATORY BUT MUST NOT BE USED TO
DEFEAT ITS PURPOSE; TECHNICAL RULES SHOULD BE USED TO
PROMOTE JUSTICE. It must also be kept in mind that while the
requirement of the certificate of non-forum shopping is mandatory, nonetheless
the requirements must not be interpreted too literally and thus defeat the
objective of preventing the undesirable practice of forum shopping (Bernardo v.
NLRC, 255 SCRA 108 [19961). Lastly, technical rules of procedure should be
used to promote, not frustrate justice. While the swift unclogging of court dockets
is a laudable objective, the granting of substantial justice is an even more urgent
ideal.
6.ID.; ID.; JUDGMENT; ACTION FOR REVIVAL OF JUDGMENT;
PERSPECTIVE PERIOD. The action instituted by the Solicitor General in the
trial court is one for revival ofjudgment which is governed by Article
11.44(3) of the Civil Code and Section 6, Rule 39 of the 1997 Rules on Civil
Procedure. Article 1144(3) provides that an action upon a judgment "must be
brought within 10 years from the time the right of action accrues." On the other
hand, Section 6, Rule 39 provides that a final and executory judgment or order
may be executed on motion within five (5) years from the date of its entry, but
that after the lapse of such time, and before it is barred by the
statute of limitations, a judgment may be enforced by action. Taking these two
provisions into consideration, it is plain that an action for revival of judgment must
be brought within ten years from the time said judgment becomes final.
7.ID.; ID.; ID.; ID.; ALREADY BARRED BY EXTINCTIVE PRESCRIPTION IN
CASE AT BAR. From the records of this case, it is clear that the judgment
sought to be revived became final on October 23, 1973. On the other hand, the
action for revival of judgment was instituted only in 1999, or more than twenty-
five (25) years after the judgment had become final. Hence, the action is barred
by extinctive prescription considering that such an action can be instituted only
within ten (10) years from the time the cause ofaction accrues.

8.ID.; ID.; ACTIONS; PRESCRIPTION DOES NOT RUN AGAINST THE STATE;
RULE MAY NOT BE INVOKED WHERE GOVERNMENT IS NO LONGER
INTERESTED IN SUBJECT MATTER OF THE CASE. While it is true that
prescription does not run against the State, the same may not be invoked by the
government in this case since it is no longer interested in the subject matter.
While Camp Wallace may have belonged to the government at the time Rafael
Galvez's title was ordered cancelled in Land Registration Case No. N-361, the
same no longer holds true today.
9.ID.; ID.; ID.; ID.; RULE DOES NOT APPLY TO ARTIFICIAL BODIES
CREATED BY THE STATE FOR SPECIAL PURPOSE;
CLAIM OF IMPRESCRIPTIBILITY CANNOT BE RAISED BY BCDA IN CASE AT
BAR. The rule that prescription does not run against the State does not apply
to corporations or artificial bodies created by the State for special purposes, it
being said that when the title of the Republic has been divested, its grantees,
although artificial bodies of its own creation, are in the same category as ordinary
persons (Kingston v. LeHigh Valley Coal Co., 241 Pa 469). By raising the
claim of imprescriptibility, a claim which cannot be raised by the BCDA, the
Government not only assists the BCDA, as it did in E. B. Marcha, it even
supplants the latter, a course of action proscribed by said case. Moreover, to
recognize the Government as a proper party to sue in this case would set a bad
precedent as it would allow the Republic to prosecute, on behalf of government-
owned or controlled corporations, causes of action which have already
prescribed, on the pretext that the Government is the real party in interest against
whom prescription does not run, said corporations having been created merely
as agents for the realization of government programs.
10.ID.; ID.; ID.; ID.; DEFENSE OF IMPRESCRIPTIBILITY MAY BE RAISED BY
THE GOVERNMENT ONLY IN CASES WHERE IT IS A REAL PARTY IN
INTEREST; REAL PARTY IN INTEREST, EXPLAINED. With the
transfer of Camp Wallace to the BCDA, the government no longer has a right or
interest to protect. Consequently, the Republic is not a real party in interest and it
may not institute the instant action. Nor may it raise the
defense of imprescriptibility, the same being applicable only in cases where the
government is a party in interest. Under Section 2 of Rule 3 of the 1997
Rules of Civil Procedure, "every action must be prosecuted or defended in the
name of the real party in interest. "To qualify a person to be a real party in
interest in whose name an action must be prosecuted, he must appear to be the
present real owner of the right sought to enforced (Pioneer Insurance v. CA, 175
SCRA 668 [1989]). A real party in interest is the party who stands to be benefited
or injured by the judgment in the suit, or the party entitled to the avails of the suit.
And by real interest is meant a present substantial interest, as distinguished from
a mere expectancy, or a future, contingent, subordinate or consequential interest
(Ibonilla v. Province of Cebu, 210 SCRA 526 [1992]). Being the owner of the
areas covered by Camp Wallace, it is the Bases Conversion and Development
Authority, not the Government, which stands to be benefited if the land covered
by TCT No. T-5710 issued in the name of petitioner is cancelled.
11.ID.; ID.; ID.; PARTIES; REAL PARTY IN INTEREST;
JURISDICTION OF THE COURT MAY NOT BE INVOKED BY A PARTY WHO
HAS NO INTEREST TO PROTECT; BASES CONVERSION AND
DEVELOPMENT AUTHORITY IS THE REAL PARTY IN INTEREST IN CASE AT
BAR. Having the capacity to sue or be sued, it should thus be the BCDA
which may file an action to cancel petitioner's title, not the Republic, the former
being the real party in interest. One having no right or interest to protect cannot
invoke the jurisdiction of the court as a party plaintiff in an action (Ralla v.
Ralla, 199 SCRA 495 [1991]). A suit may be dismissed if the plaintiff or the
defendant is not a real party in interest. If the suit is not brought in the
name of the real party in interest, a motion to dismiss may be filed, as was done
by petitioner in this case, on the ground that the complaint states no
cause of action (Tanpingco v. IAC, 207 SCRA 652 [1992]).
12.ADMINISTRATIVE LAW; ADMINISTRATIVE AGENCIES; BASES
CONVERSION AND DEVELOPMENT AUTHORITY; NOT A MERE
AGENCY OF THE GOVERNMENT. We, however, must not lose sight of the
fact that the BCDA is an entity invested with a personality separate and distinct
from the government. It may not be amiss to state at this point that the
functions of government have been classified into governmental or constituent
and proprietary or ministrant. While public benefit and public welfare, particularly,
the promotion of the economic and social development of Central Luzon, may be
attributable to the operation of the BCDA, yet it is certain that the functions
performed by the BCDA are basically proprietary in nature. The
promotion of economic and social development of Central Luzon, in particular,
and the country's goal for enhancement, in general, do not make the BCDA
equivalent to the Government. Other corporations have been created by
government to act as its agents for the realizationof its programs, the SSS, GSIS,
NAWASA and the NIA, to count a few, and yet, the Court has ruled that these
entities, although performing functions aimed at promoting public interest and
public welfare, are not government-function corporations invested with
governmental attributes. It may thus be said that the BCDA is not a mere
agency of the Government but a corporate body performing proprietary functions.
D E C I S I O N
MELO, J p:
Before the Court is a petition for certiorari filed by Shipside Incorporated under
Rule 65 of the 1997 Rules on Civil Procedure against the
resolutions of the Court of Appealspromulgated on November 4, 1999 and May
23, 2000, which respectively, dismissed a petition for certiorari and prohibition
and thereafter denied a motion for reconsideration.
The antecedent facts are undisputed:
On October 29, 1958, Original Certificate of Title No. 0-381 was issued in
favor of Rafael Galvez, over four parcels of land Lot 1 with 6, 571 square
meters; Lot 2, with 16,777 square meters; Lot 3 with 1,583 square meters; and
Lot 4, with 508 square meters.
On April 11, 1960, Lots No. 1 and 4 were conveyed by Rafael Galvez in
favor of Filipina Mamaril, Cleopatra Llana, Regina Bustos, and Erlinda Balatbat in
a deed of sale which was inscribed as Entry No. 9115 OCT No. 0-381 on August
10, 1960. Consequently, Transfer Certificate No. T-4304 was issued in
favor of the buyers covering Lots No. 1 and 4.
Lot No. 1 is described as: SCETHa
A parcel of land (Lot 1, Plan PSU-159621, L.R. Case No. N-361; L.R.C.
Record No. N-14012, situated in the Barrio of Poro, Municipality of San
Fernando, Province of La Union, bounded on the NE, by the Foreshore;
on the SE, by Public Land and property of the Benguet Consolidated
Mining Company; on the SW, by properties ofRafael Galvez (US Military
Reservation Camp Wallace) and Policarpio Munar; and on the NW, by
an old Barrio Road. Beginning at a point marked "1" on plan, being S. 74
deg. 11'W., 2670.36 from B.L.L.M. 1, San Fernando, thence
S. 66 deg. 19'E., 134.95 m. to point 2; S. 14 deg. 57'W., 11.79 m. to
point 3;
S. 12 deg. 45'W., 27.00 m. to point 4; S. 12 deg. 45'W, 6.90 m. to point
5;
N. 69 deg., 32'W., 106.00 m. to point 6; N. 52 deg., 21'W., 36.85 m. to
point 7;
N. 21 deg. 31'E., 42.01 m. to the point of beginning; containing an
area of SIX THOUSAND FIVE HUNDRED AND SEVENTY-ONE (6,571)
SQUARE METERS, more or less. All points referred to are indicated on
the plan; and marked on the ground; bearings true, date of survey,
February 4-21, 1957.
Lot No. 4 has the following technical description:
A parcel of land (Lot 4, Plan PSU-159621, L.R. Case No. N-361 L.R.C.
Record No. N-14012), situated in the Barrio of Poro, Municipality of San
Fernando, La Union. Bounded on the SE by the property of the Benguet
Consolidated Mining Company; on the S. by property of Pelagia Carino;
and on the NW by the property of Rafael Galvez (US Military
Reservation, Camp Wallace). Beginning at a point marked "1" on plan,
being S. deg. 24'W. 2591.69 m. from B.L.L.M. 1, San Fernando, thence
S. 12 deg. 45'W., 73.03 m. to point 2; N. 79 deg. 59'W., 13.92 m. to point
3; N. 23 deg. 26'E., 75.00 m. to the point of beginning; containing an
area of FIVE HUNDRED AND EIGHT (508) SQUARE METERS, more or
less. All points referred to are indicated in the plan and marked on the
ground; bearings true, date of survey, February 4-21, 1957.
On August 16, 1960, Mamaril, et al. sold Lots No. 1 and 4 to Lepanto
Consolidated Mining Company. The deed of sale covering the aforesaid property
was inscribed as Entry No. 9173 on TCT No. T-4304. Subsequently, Transfer
Certificate No. T-4314 was issued in the name of Lepanto Consolidated Mining
Company as owner of Lots No. 1 and 4.
On February 1, 1963, unknown to Lepanto Consolidated Mining Company,
the Court of First Instance of La Union, Second Judicial District, issued an Order
in Land Registration Case No. N-361 (LRC Record No. N-14012) entitled "Rafael
Galvez, Applicant, Eliza Bustos, et al., Parties-In-Interest; Republic of the
Philippines, Movant" declaring OCT No. 0-381 of the Registry of Deeds for the
Province of La Union issued in the name of Rafael Galvez, null and void, and
ordered the cancellation thereof.
The Order pertinently provided:
Accordingly, with the foregoing, and without prejudice on the
rights of incidental parties concerned herein to institute their respective
appropriate actions compatible with whatever cause they may have, it is
hereby declared and this court so holds that both proceedings in Land
Registration Case No. N-361 and Original Certificate No. 0-381 of the
Registry of Deeds for the province of La Union issued in virtue thereof
and registered in the name of Rafael Galvez, are null and void; the
Register of Deeds for the Province of La Union is hereby ordered to
cancel the said original certificate and/or such other certificates of title
issued subsequent thereto having reference to the same parcels of land;
without pronouncement as to costs.

On October 28, 1963, Lepanto Consolidated Mining Company sold to herein
petitioner Lots No. 1 and 4, with the deed being entered in TCT NO. 4314 as
entry No. 12381. Transfer Certificate of Title No. T-5710 was thus issued in
favor of the petitioner which starting since then exercised proprietary rights over
Lots No. 1 and 4.
In the meantime, Rafael Galvez filed his motion for reconsideration against the
order issued by the trial court declaring OCT No. 0-381 null and void. The motion
was denied on January 25, 1965. On appeal, the Court of Appeals ruled in
favor of the Republic of the Philippines in a Resolution promulgated on August
14, 1973 in CA-G.R. No. 36061-R.
Thereafter, the Court of Appeals issued an Entry of Judgment, certifying that its
decision dated August 14, 1973 became final and executory on October 23,
1973.
On April 22, 1974, the trial court in L.R.C. Case No. N-361 issued a
writ of execution of the judgment which was served on the Register of Deeds,
San Fernando, La Union on April 29, 1974.
Twenty four long years thereafter, on January 14, 1999, the Office of the Solicitor
General received a letter dated January 11, 1999 from Mr. Victor G. Floresca,
Vice-President, John Hay Poro Point Development Corporation, stating that the
aforementioned orders and decision of the trial court in L.R.C. No. N-361 have
not been executed by the Register of Deeds, San Fernando, La Union despite
receipt of the writ of execution.
On April 21, 1999, the Office of the Solicitor General filed a complaint for
revival of judgment and cancellation of titles before the Regional
Trial Court of the First Judicial Region (Branch 26, San Fernando, La Union)
docketed therein as Civil Case No. 6346 entitled, "Republic of the Philippines,
Plaintiff, versus Heirs of Rafael Galvez, represented by Teresita Tan, Reynaldo
Mamaril, Elisa Bustos, Erlinda Balatbat, Regina Bustos, Shipside Incorporated
and the Register of Deeds of La Union, Defendants."
The evidence shows that the impleaded defendants (except the
Register of Deeds of the province of La Union) are the successors-in-
interest of Rafael Galvez (not Reynaldo Galvez as alleged by the Solicitor
General) over the property covered by OCT No. 0-381, namely: (a) Shipside Inc.
which is presently the registered owner in fee simple of Lots No. 1 and 4 covered
by TCT No. T-5710, with a total area of 7,079 square meters; (b) Elisa Bustos,
Jesusito Galvez, and Teresita Tan who are the registered owners of Lot No.
2of OCT No. 0-381; and (c) Elisa Bustos, Filipina Mamaril, Regina Bustos and
Erlinda Balatbat who are the registered owners of Lot No. 3 of OCT No. 0-381,
now covered by TCT No. T-4916, with an area of 1,583 square meters.
In its complaint in Civil Case No. 6346, the Solicitor General argued that since
the trial court in LRC Case No. 361 had ruled and declared OCT No. 0-381 to be
null and void, which ruling was subsequently affirmed by the Court of Appeals,
the defendants-successors-in-interest of Rafael Galvez have no valid title over
the property covered by OCT No. 0-381, and the subsequent Torrens titles
issued in their names should be consequently cancelled.
On July 22, 1999, petitioner Shipside, Inc. filed its Motion to Dismiss, based on
the following grounds: (1) the complaint stated no cause of action because only
final and executory judgments may be subject of an action for
revival of judgment; (2) the plaintiff is not the real party-in-interest because the
real property covered by the Torrens titles sought to be cancelled, allegedly
part of Camp Wallace (Wallace Air Station), were under the ownership and
administration of the Bases Conversion Development Authority (BCDA)
under Republic Act No. 7227; (3) plaintiff's cause of action is barred by
prescription; (4) twenty-five years having lapsed since the issuance of the
writ ofexecution, no action for revival of judgment may be instituted because
under Paragraph 3 of Article 1144 of the Civil Code, such action may be brought
only within ten (10) years from the time the judgment had been rendered.
An opposition to the motion to dismiss was filed by the Solicitor General on
August 23, 1999, alleging among others, that: (1) the real party-in-interest is the
Republic of the Philippines; and (2) prescription does not run against the State.
On August 31, 1999, the trial court denied petitioner's motion to dismiss and on
October 14, 1999, its motion for reconsideration was likewise turned down.
On October 21, 1999, petitioner instituted a petition for certiorari and prohibition
with the Court of Appeals, docketed therein as CA-G.R. SP No. 55535, on the
ground that the orders of the trial court denying its motion to dismiss and its
subsequent motion for reconsideration were issued in excess of jurisdiction.
On November 4, 1999, the Court of Appeals dismissed the petition in CA-G.R.
SP No. 55535 on the ground that the verification and certification in the petition,
under the signature of Lorenzo Balbin, Jr., was made without authority, there
being no proof therein that Balbin was authorized to institute the petition for and
in behalf and of petitioner.cATDIH
On May 23, 2000, the Court of Appeals denied petitioner's motion for
reconsideration on the grounds that: (1) a complaint filed on behalf of a
corporation can be made only if authorized by its Board of Directors, and in the
absence thereof, the petition cannot prosper and be granted due course; and (2)
petitioner was unable to show that it had substantially complied with the rule
requiring proof of authority to institute an action or proceeding.
Hence, the instant petition.
In support of its petition, Shipside, Inc. asseverates that:
1.The Honorable Court of Appeals gravely abused its discretion in
dismissing the petition when it made a conclusive legal
presumption that Mr. Balbin had no authority to sign the petition
despite the clarity of laws, jurisprudence and Secretary's
certificate to the contrary;
2.The Honorable Court of Appeals abused its discretion when it
dismissed the petition, in effect affirming the grave
abuse of discretion committed by the lowercourt when it refused
to dismiss the 1999 Complaint for Revival of a 1973 judgment, in
violation of clear laws and jurisprudence.
Petitioner likewise adopted the arguments it raised in the petition and
comment/reply it filed with the Court of Appeals, attached to its petition as Exhibit
"L" and "N", respectively.
In his Comment, the Solicitor General moved for the dismissal of the instant
petition based on the following considerations: (1) Lorenzo Balbin, who signed for
and in behalf ofpetitioner in the verification and certification of non-forum
shopping portion of the petition, failed to show proof of his authorization to
institute the petition for certiorari and prohibition with the Court of Appeals, thus
the latter court acted correctly in dismissing the same; (2) the real party-in-
interest in the case at bar being the Republic of the Philippines, its claims are
imprescriptible.
In order to preserve the rights of herein parties, the Court issued a temporary
restraining order on June 26, 2000 enjoining the trial court from conducting
further proceedings in Civil Case No. 6346.
The issues posited in this case are: (1) whether or not an authorization from
petitioner's Board of Directors is still required in order for its resident manager to
institute or commence a legal action for and in behalf of the corporation; and (2)
whether or not the Republic of the Philippines can maintain the action for
revival of judgment herein.
We find for petitioner.
Anent the first issue:
The Court of Appeals dismissed the petition for certiorari on the ground that
Lorenzo Balbin, the resident manager for petitioner, who was the signatory in the
verification and certification on non-forum shopping, failed to show proof that he
was authorized by petitioner's board of directors to file such a petition.
A corporation, such as petitioner, has no power except those expressly conferred
on it by the Corporation Code and those that are implied or incidental to its
existence. In turn, a corporation exercises said powers through its
board of directors and/or its duly authorized officers and agents. Thus, it has
been observed that the power of a corporation to sue and be sued in any court is
lodged with the board of directors that exercises its corporate powers (Premium
Marble Resources, Inc. v. CA, 264 SCRA 11 [1996]). In turn, physical acts of the
corporation, like the signing of documents, can be performed only by natural
persons duly authorized for the purpose by corporate by-laws or by a specific
act of the board of directors.
It is undisputed that on October 21, 1999, the time petitioner's Resident Manager
Balbin filed the petition, there was no proof attached thereto that Balbin was
authorized to sign the verification and non-forum shopping certification therein,
as a consequence of which the petition was dismissed by the Court of Appeals.
However, subsequent to such dismissal, petitioner filed a motion for
reconsideration, attaching to said motion a certificate issued by its board
secretary stating that on October 11, 1999, or ten days prior to the filing of the
petition, Balbin had been authorized by petitioner's board of directors to file said
petition.
The Court has consistently held that the requirement regarding verification of a
pleading is formal, not jurisdictional (Uy v. LandBank, G.R. No. 136100, July 24,
2000). Such requirement is simply a condition affecting the form of the pleading,
non-compliance with which does not necessarily render the pleading fatally
defective. Verification is simply intended to secure an assurance that the
allegations in the pleading are true and correct and not the product of the
imagination or a matter of speculation, and that the pleading is filed in good faith.
The court may order the correction of the pleading if verification is lacking or act
on the pleading although it is not verified, if the attending circumstances are such
that strict compliance with the rules may be dispensed with in order that the
ends of justice may thereby be served.

On the other hand, the lack of certification against forum shopping is generally
not curable by the submission thereof after the filing of the petition. Section 5,
Rule 45 of the 1997 Rules of Civil Procedure provides that the failure of the
petitioner to submit the required documents that should accompany the petition,
including the certification against forum shopping, shall be sufficient ground for
the dismissal thereof. The same rule applies to certifications against forum
shopping signed by a person on behalf of a corporation which are
unaccompanied by proof that said signatory is authorized to file a petition on
behalf of the corporation.
In certain exceptional circumstances, however, the Court has allowed the belated
filing of the certification. In Loyola v. Court of Appeals, et. al. (245 SCRA 477
[1995]), theCourt considered the filing of the certification one day after the
filing of an election protest as substantial compliance with the requirement.
In Roadway Express, Inc. v. Courtof Appeals, et. al. (264 SCRA 696 [1996]),
the Court allowed the filing of the certification 14 days before the dismissal of the
petition. In Uy v. Landbank, supra, the Court had dismissed Uy's petition for
lack of verification and certification against non-forum shopping. However, it
subsequently reinstated the petition after Uy submitted a motion to admit
certification and non-forum shopping certification. In all these cases, there were
special circumstances or compelling reasons that justified the relaxation of the
rule requiring verification and certification on non-forum shopping.
In the instant case, the merits of petitioner's case should be considered special
circumstances or compelling reasons that justify tempering the requirement in
regard to the certificate of non-forum shopping. Moreover, in Loyola,
Roadway, and Uy, the Court excused non-compliance with the requirement as to
the certificate of non-forum shopping. With more reason should we allow the
instant petition since petitioner herein did submit a certification on non-forum
shopping, failing only to show proof that the signatory was authorized to do so.
That petitioner subsequently submitted a secretary's certificate attesting that
Balbin was authorized to file an action on behalf of petitioner likewise mitigates
this oversight.
It must also be kept in mind that while the requirement of the certificate of non-
forum shopping is mandatory, nonetheless the requirements must not be
interpreted too literally and thus defeat the objective of preventing the
undesirable practice of forum-shopping (Bernardo v. NLRC, 255 SCRA 108
[1996]). Lastly, technical rules of procedure should be used to promote, not
frustrate justice. While the swift unclogging of court dockets is a laudable
objective, the granting of substantial justice is an even more urgent ideal.
Now to the second issue:
The action instituted by the Solicitor General in the trial court is one for
revival of judgment which is governed by Article 1144(3) of the Civil Code and
Section 6, Rule 39 of the 1997 Rules on Civil Procedure. Article 1144(3) provides
that an action upon a judgment "must be brought within 10 years from the time
the right of action accrues." On the other hand, Section 6, Rule 39 provides that a
final and executory judgment or order may be executed on motion within five (5)
years from the date of its entry, but that after the lapse of such time, and before it
is barred by the statute of limitations, a judgment may be enforced by action.
Taking these two provisions into consideration, it is plain that an action for
revival of judgment must be brought within ten years from the time said judgment
becomes final.
From the records of this case, it is clear that the judgment sought to be revived
became final on October 23, 1973. On the other hand, the action for
revival of judgment was instituted only in 1999, or more than twenty-five (25)
years after the judgment had become final. Hence, the action is barred by
extinctive prescription considering that such an action can be instituted only
within ten (10) years from the time the cause of action accrues.
The Solicitor General, nonetheless, argues that the State's cause of action in the
cancellation of the land title issued to petitioner's predecessor-in-interest is
imprescriptible because it is included in Camp Wallace, which belongs to the
government.
The argument is misleading.
While it is true that prescription does not run against the State, the same may not
be invoked by the government in this case since it is no longer interested in the
subject matter. While Camp Wallace may have belonged to the government at
the time Rafael Galvez's title was ordered cancelled in Land Registration Case
No. N-361, the same no longer holds true today.
Republic Act No. 7227, otherwise known as the Bases Conversion and
Development Act of 1992, created the Bases Conversion and Development
Authority. Section 4 pertinently provides:
SECTION 4. Purposes of the Conversion Authority. The Conversion
Authority shall have the following purposes:
(a)To own, hold and/or administer the military reservations of John Hay
Air Station, Wallace Air Station, O'Donnell Transmitter Station,
San Miguel Naval Communications Station, Mt. Sta. Rita Station
(Hermosa, Bataan) and those portions of Metro Manila military
camps which may be transferred to it by the President;
Section 2 of Proclamation No. 216, issued on July 27, 1993, also provides:
SECTION 2. Transfer of Wallace Air Station Areas to the Bases
Conversion and Development Authority. All areas covered by the
Wallace Air Station as embraced and defined by the 1947 Military Bases
Agreement between the Philippines and the United States of America,
as amended, excluding those covered by Presidential Proclamations and
some 25-hectare area for the radar and communication station of the
Philippine Air Force, are hereby transferred to the Bases Conversion
Development Authority . . .
With the transfer of Camp Wallace to the BCDA, the government no longer has a
right or interest to protect. Consequently, the Republic is not a real party in
interest and it may not institute the instant action. Nor may it raise the
defense of imprescriptibility, the same being applicable only in cases where the
government is a party in interest.Under Section 2 of Rule 3 of the 1997
Rules of Civil Procedure, "every action must be prosecuted or defended in the
name of the real party in interest." To qualify a person to be a real party in
interest in whose name an action must be prosecuted, he must appear to be the
present real owner of the right sought to enforced (Pioneer Insurance v. CA, 175
SCRA 668 [1989]). A real party in interest is the party who stands to be benefited
or injured by the judgment in the suit, or the party entitled to the avails of the suit.
And by real interest is meant a present substantial interest, as distinguished from
a mere expectancy, or a future, contingent, subordinate or consequential interest
(Ibonilla v.Province of Cebu, 210 SCRA 526 [1992]). Being the owner of the
areas covered by Camp Wallace, it is the Bases Conversion and Development
Authority, not the Government, which stands to be benefited if the land covered
by TCT No. T-5710 issued in the name of petitioner is cancelled.
Nonetheless, it has been posited that the transfer of military
reservations and their extensions to the BCDA is basically for the
purpose of accelerating the sound and balanced conversion of these military
reservations into alternative productive uses and to enhance the benefits to
be derived from such property as a measure ofpromoting the economic and
social development, particularly of Central Luzon and, in general, the
country's goal for enhancement (Section 2, Republic Act No. 7227). It is
contended that the transfer of these military reservations to the Conversion
Authority does not amount to an abdication on the part of the Republic of its
interests, but simply a recognition of the need to create a body corporate
which will act as its agent for the realization of its program. It is consequently
asserted that the Republic remains to be the real party in interest and the
Conversion Authority merely its agent.
We, however, must not lose sight of the fact that the BCDA is an entity invested
with a personality separate and distinct from the government. Section
3 of Republic Act No. 7227 reads:
SECTION 3. Creation of the Bases Conversion and Development
Authority. There is hereby created a body corporate to be known as
the Conversion Authority which shall have the attribute of perpetual
succession and shall be vested with the powers of a corporation.
It may not be amiss to state at this point that the functions of government have
been classified into governmental or constituent and proprietary or ministrant.
While public benefit and public welfare, particularly, the promotion of the
economic and social development of Central Luzon, may be attributable to the
operation of the BCDA, yet it is certain that the functions performed by the BCDA
are basically proprietary in nature. The promotion of economic and social
development of Central Luzon, in particular, and the country's goal for
enhancement, in general, do not make the BCDA equivalent to the Government.
Other corporations have been created by government to act as its agents for the
realization of its programs, the SSS, GSIS, NAWASA and the NIA, to count a
few, and yet, the Court has ruled that these entities, although performing
functions aimed at promoting public interest and public welfare, are not
government-function corporations invested with governmental attributes. It may
thus be said that the BCDA is not a mere agency of the Government but a
corporate body performing proprietary functions.
Moreover, Section 5 of Republic Act No. 7227 provides:
SECTION 5. Powers of the Conversion Authority. To carry out its
objectives under this Act, the Conversion Authority is hereby vested with
the following powers:

(a)To succeed in its corporate name, to sue and be sued in such
corporate name and to adopt, alter and use a corporate seal
which shall be judicially noticed; EASCDH
Having the capacity to sue or be sued, it should thus be the BCDA which may file
an action to cancel petitioner's title, not the Republic, the former being the real
party in interest. One having no right or interest to protect cannot invoke the
jurisdiction of the court as a party plaintiff in an action (Ralla v. Ralla, 199 SCRA
495 [1991]). A suit may be dismissed if the plaintiff or the defendant is not a real
party in interest. If the suit is not brought in the name of the real party in interest,
a motion to dismiss may be filed, as was done by petitioner in this case, on the
ground that the complaint states no cause of action (Tanpingco v. IAC, 207
SCRA 652 [1992]).
However, E.B. Marcha Transport Co., Inc. v. IAC (147 SCRA 276 [1987]) is cited
as authority that the Republic is the proper party to sue for the
recovery of possession ofproperty which at the time of the institution of the suit
was no longer held by the national government but by the Philippine Ports
Authority. In E.B. Marcha, the Court ruled:
It can be said that in suing for the recovery of the rentals, the
Republic of the Philippines, acted as principal of the Philippine Ports
Authority, directly exercising the commission it had earlier conferred on
the latter as its agent. We may presume that, by doing so, the
Republic of the Philippines did not intend to retain the said rentals for its
own use, considering that by its voluntary act it had transferred the land
in question to the Philippine Ports Authority effective July 11, 1974. The
Republic of the Philippines had simply sought to assist, not supplant, the
Philippine Ports Authority, whose title to the disputed property it
continues to recognize. We may expect then that the said rentals, once
collected by the Republic of the Philippines, shall be turned over by it to
the Philippine Ports Authority conformably to the purposes of P.D. No.
857.
E.B. Marcha is, however, not on all fours with the case at bar. In the former,
the Court considered the Republic a proper party to sue since the claims of the
Republic and the Philippine Ports Authority against the petitioner therein were the
same. To dismiss the complaint in E.B. Marcha would have brought needless
delay in the settlement of the matter since the PPA would have to refile the case
on the same claim already litigated upon. Such is not the case here since to
allow the government to sue herein enables it to raise the
issue of imprescriptibility, a claim which is not available to the BCDA. The rule
that prescription does not run against the State does not apply to corporations or
artificial bodies created by the State for special purposes, it being said that when
the title of the Republic has been divested, its grantees, although artificial
bodies of its own creation, are in the same category as ordinary persons
(Kingston v. LeHigh Valley Coal Co., 241 Pa 469). By raising the
claim of imprescriptibility, a claim which cannot be raised by the BCDA, the
Government not only assists the BCDA, as it did in E.B. Marcha, it even
supplants the latter, a course of action proscribed by said case.
Moreover, to recognize the Government as a proper party to sue in this case
would set a bad precedent as it would allow the Republic to prosecute, on
behalf of government-owned or controlled corporations, causes of action which
have already prescribed, on the pretext that the Government is the real party in
interest against whom prescription does not run, said corporations having been
created merely as agents for the realization of government programs.
Parenthetically, petitioner was not a party to the original suit for
cancellation of title commenced by the Republic twenty-seven years for which it
is now being made to answer, nay, being made to suffer financial losses.
It should also be noted that petitioner is unquestionably a buyer in good faith and
for value, having acquired the property in 1963, or 5 years after the
issuance of the original certificate of title, as a third transferee. If only not to do
violence and to give some measure of respect to the Torrens System, petitioner
must be afforded some measure ofprotection.
One more point.
Since the portion in dispute now forms part of the property owned and
administered by the Bases Conversion and Development Authority, it is alienable
and registerable real property.
We find it unnecessary to rule on the other matters raised by the herein parties.
WHEREFORE, the petition is hereby granted and the orders dated August 31,
1999 and October 4, 1999 of the Regional Trial Court of the First National
Judicial Region (Branch 26, San Fernando, La Union) in Civil Case No. 6346
entitled "Republic of the Philippines, Plaintiff, versus Heirs of Rafael Galvez, et.
al., Defendants" as well as the resolutions promulgated on November 4, 1999
and May 23, 2000 by the Court of Appeals (Twelfth Division) in CA-G.R. SP No.
55535 entitled "Shipside, Inc., Petitioner versus Hon. Alfredo Cajigal, as Judge,
RTC, San Fernando, La Union, Branch 26, and the Republic of the Philippines,
Respondents" are hereby reversed and set aside. The complaint in Civil Case
No. 6346, Regional Trial Court, Branch 26, San Fernando City, La Union entitled
"Republic of the Philippines, Plaintiff, versus Heirs of Rafael Galvez, et al." is
ordered dismissed, without prejudice to the filing of an appropriate action by the
Bases Development and Conversion Authority.
SO ORDERED. cHECAS
Panganiban, Gonzaga-Reyes and Sandoval-Gutierrez, JJ., concur.
Separate Opinions
VITUG, J .:
I find no doctrinal difficulty in adhering to the draft ponencia written by our
esteemed Chairman, Mr. Justice JARM, insofar as it declares that an action for
revival of judgment is barred by extinctive prescription, if not brought within ten
(10) years from the time the right of action accrues, pursuant to Article
1144(3) of the New Civil Code. It appears that the judgment in the instant case
has become final on 23 October 1973 or well more than two decades prior to the
action for its revival instituted only in 1999.
With due respect, however, I still am unable to subscribe to the idea that
prescription may not be invoked by the government in this case upon the thesis
that the transfer ofCamp Wallace to the Bases Conversion Development
Authority renders the Republic with no right or interest to protect and thus
unqualified under the rules of procedure to be the real party-in-interest. While it is
true that Republic Act 7227, otherwise known as the Bases Conversion and
Development Act of 1992, authorizes the transfer of the military reservations and
their extensions to the Conversion Authority, the same, however, is basically for
the purpose of accelerating the sound and balanced conversion ofthese military
reservations into alternative productive uses and to enhance the benefits to be
derived from such property as a measure of promoting the economic and social
development, particularly, of Central Luzon and, in general, the country's goal for
enhancement. 1 The transfer of these military reservations to the Conversion
Authority does not amount to an abdication on the part of the Republic of its
interests but simply a recognition of the need to create a body corporate which
will act as its agent for the realization of its program specified in the Act. It ought
to follow that the Republic remains to be the real party-in-interest and the
Conversion Authority being merely its agent.
In E.B. Marcha Transport Co., Inc. vs. Intermediate
Appellate Court, 2 the Court succinctly resolved the issue of whether or not the
Republic of the Philippines would be a proper party to sue for the
recovery of possession of property which at the time of the institution of the suit
was no longer being held by the national government but by the Philippine Ports
Authority. The Court ruled:
"More importantly, as we see it, dismissing the complaint on the ground
that the Republic of the Philippines is not the proper party would result in
needless delay in the settlement of this matter and also in
derogation of the policy against multiplicity of suits. Such a decision
would require the Philippine Ports Authority to refile the very same
complaint already proved by the Republic of the Philippines and bring
back the parties as it were to square one.
"It can be said that in suing for the recovery of the rentals, the
Republic of the Philippines, acted as principal of the Philippine Ports
Authority, directly exercising the commission it had earlier conferred on
the latter as its agent. We may presume that, by doing so, the
Republic of the Philippines did not intend to retain the said rentals for its
own use, considering that by its voluntary act it had transferred the land
in question to the Philippine Ports Authority effective July 11, 1974. The
Republic of the Philippines had simply sought to assist, not supplant, the
Philippine Ports Authority, whose title to the disputed property it
continues to recognize. We may expect then that the said rentals, once
collected by the Republic of the Philippines, shall be turned over by it to
the Philippine Ports Authority conformably to the purposes of P.D. No.
857."
There would seem to be no cogent reason for ignoring that rationale specially
when taken in light of the fact that the original suit for
cancellation of title of petitioner's predecessor-in-interest was commenced by
the Republic itself, and it was only in 1992 that the subject military camp was
transferred to the Conversion Authority. TSIEAD
||| (Shipside Inc. v. Court of Appeals, G.R. No. 143377, February 20, 2001)

SECOND DIVISION
[G.R. No. L-25843. July 25, 1974.]
MELCHORA CABANAS, plaintiff-appellee, vs.
FRANCISCO PILAPIL, defendant-appellant.
Seno, Mendoza & Associates for plaintiff-appellee.
Emilio Benitez, Jr. for defendant-appellant.
D E C I S I O N
FERNANDO, J p:
The disputants in this appeal from a question of law from a lower court decision
are the mother and the uncle of a minor beneficiary of the proceeds of an
insurance policy issued on the life of her deceased father. The dispute centers as
to who of them should be entitled to act as trustee thereof. The lower court
applying the appropriate Civil Code provisions decided in favor of the mother, the
plaintiff in this case. Defendant uncle appealed. As noted, the lower court acted
the way it did following the specific mandate of the law. In addition, it must have
taken into account the principle that in cages of this nature the welfare of the
child is the paramount consideration. It is not an unreasonable assumption that
between a mother and an uncle, the former is likely to lavish more care on and
pay greater attention to her. This is all the more likely considering that the child is
with the mother. There are no circumstances then that did militate against what
conforms to the natural order of things, even if the language of the law were not
as clear. It is not to be lost sight of either that the judiciary pursuant to its role as
an agency of the State as parens patriae, with an even greater stress on family
unity under the present Constitution, did weigh in the balance the opposing
claims and did come to the conclusion that the welfare of the child called for the
mother to be entrusted with such responsibility. We have to affirm.
The appealed decision made clear: "There is no controversy as to the
facts." 1 The insured, Florentino Pilapil had a child, Millian Pilapil, with a married
woman, the plaintiff, Melchora Cabanas. She was ten years old at the time the
complaint was filed on October 10, 1964. The defendant, Francisco Pilapil, is the
brother of the deceased. The deceased insured himself and instituted as
beneficiary, his child, with his brother to act as trustee during her minority. Upon
his death, the proceeds were paid to him. Hence this complaint by the mother,
with whom the child is living, seeking the delivery of such sum. She filed the bond
required by the Civil Code. Defendant would justify his claim to the retention of
the amount in question by invoking the terms of the insurance policy. 2
After trial duly had, the lower court in a decision of May 10, 1965, rendered
judgment ordering the defendant to deliver the proceeds of the policy in question
to plaintiff. Its main reliance was on Articles 320 and 321 of the Civil Code. The
former provides: "The father, or in his absence the mother, is the legal
administrator of the property pertaining to the child under parental authority. If the
property is worth more than two thousand pesos, the father or mother shall give a
bond subject to the approval of the Court of First Instance." 3 The latter states:
"The property which the unemancipated child has acquired or may acquire with
his work or industry, or by any lucrative title, belongs to the child in ownership,
and in usufruct to the father or mother under whom he is under parental authority
and whose company he lives; . . ." 4
Conformity to such explicit codal norm is apparent in this portion of the appealed
decision: "The insurance proceeds belong to the beneficiary. The beneficiary is a
minor under the custody and parental authority of the plaintiff, her mother. The
said minor lives with plaintiff or lives in the company of the plaintiff. The said
minor acquired this property by lucrative title. Said property, therefore, belongs to
the minor child in ownership, and in usufruct to the plaintiff, her mother. Since
under our law the usufructuary is entitled to possession, the plaintiff is entitled to
possession of the insurance proceeds. The trust, insofar as it is in conflict with
the above quoted provision of law, is pro tanto null and void. In order, however,
to protect the rights of the minor, Millian Pilapil, the plaintiff should file an
additional bond in the guardianship proceedings, Sp. Proc. No. 2418-R of this
Court to raise her bond therein to the total amount of P5,000.00." 5
It is very clear, therefore, considering the above, that unless the applicability of
the two cited Civil Code provisions can be disputed, the decision must stand.
There is no ambiguity in the language employed. The words are rather clear.
Their meaning is unequivocal. Time and time again, this Court has left no doubt
that where codal or statutory norms are cast in categorical language, the task
before it is not one of interpretation but of application. 6 So it must be in this case.
So it was in the appealed decision.
1.It would take more than just two paragraphs as found in the brief for the
defendant-appellant 7 to blunt the force of legal commands that speak so plainly
and so unqualifiedly. Even if it were a question of policy, the conclusion will
remain unaltered. What is paramount, as mentioned at the outset, is the welfare
of the child. It is in consonance with such primordial end that Articles 320 and
321 have been worded. There is recognition in the law of the deep ties that bind
parent and child. In the event that there is less than full measure of concern for
the offspring, the protection is supplied by the bond required. With the added
circumstance that the child stays with the mother, not the uncle, without any
evidence of lack of maternal care, the decision arrived at can stand the test of the
strictest scrutiny. It is further fortified by the assumption, both logical and natural,
that infidelity to the trust imposed by the deceased is much less in the case of a
mother than in the case of an uncle. Manresa, commenting on Article 159 of the
Civil Code of Spain, the source of Article 320 of the Civil Code, was of that view:
Thus "El derecho y la obligacion de administrar el patrimonio de los hijos es una
consecuencia natural y logica de la patria potestad y de la presuncion de que
nadie cuidar de los bienes de acqullos con mas cario y solicitud que los padres.
En nuestro Derecho antiguo puede decirse que se hallaba reconocida de una
manera indirecta aquella doctrina, y as! se desprende de la sentencia cia del
Tribunal Supremeo de 30 de diciembre de 1864, que se refiere a la ley 24, tit.
XIII de la Partida 5. De la propia suerte aceptan en general dicho principio los
Codigos extranjeros, con las limitaciones y requisitos de que trataremos m s
adelante." 8
2.The appealed decision is supported by another cogent consideration. It is
buttressed by its adherence to the concept that the judiciary, as an agency of the
State acting asparens patriae, is called upon whenever a pending suit of litigation
affects one who is a minor to accord priority to his best interest. It may happen,
as it did occur here, that family relations may press their respective claims. It
would be more in consonance not only with the natural order of things but the
tradition of the country for a parent to be preferred. It could have been different if
the conflict were between father and mother. Such is not the case at all. It is a
mother asserting priority. Certainly the judiciary as the instrumentality of the State
in its role of parens patriae cannot remain insensible to the validity of her plea. In
a recent case, 9 there is this quotation from an opinion of the United States
Supreme Court: "This prerogative of parens patriae is inherent in the supreme
power of every State, whether that power is lodged in a royal person or in the
legislature, and has no affinity to those arbitrary powers which are sometimes
exerted by irresponsible monarchs to the great detriment of the people and the
destruction of their liberties." What is more, there is this constitutional provision
vitalizing this concept. It reads: "The State shall strengthen the family as a basic
social institution." 10 If, as the Constitution so wisely dictates, it is the family as a
unit that has to be strengthened, it does not admit of doubt that even if a stronger
case were presented for the uncle, still deference to a constitutional mandate
would have led the lower court to decide as it did.
WHEREFORE, the decision of May 10, 1965 is affirmed. Costs against
defendant-appellant.
Zaldivar (Chairman), Antonio, Fernandez and Aquino, JJ., concur.
Barredo, J., did not take part.
||| (Cabanas v. Pilapil, G.R. No. L-25843, July 25, 1974)

EN BANC
[G.R. No. L-409. January 30, 1947.]
ANASTACIO LAUREL, petitioner, vs.
ERIBERTO MISA, respondent.
Pedro M. Recto and Que Tube C. Makalintal, for petitioner.
First Assistant Solicitor General Reyes and Solicitor Hernandez, Jr., for
respondent.
SYLLABUS
1.INTERNATIONAL AND CONSTITUTIONAL LAW; ALLEGIANCE OF
CITIZEN OR SUBJECT TO SOVEREIGN; NATURE OF. A citizen or
subject owes, not a qualified and temporary, but an absolute and permanent
allegiance, which consists in the obligation of fidelity and obedience to his
government or sovereign.
2.ID.; ID.; ID.; EFFECT OF ENEMY OCCUPATION. The absolute
and permanent allegiance of the inhabitants of a territory occupied by the
enemy to their legitimate government or sovereign is not abrogated or
severed by the enemy occupation, because the sovereignty of the
government or sovereign de jure is not transferred thereby to the occupier.
3.ID.; ID.; ID.; SOVEREIGNTY, EFFECT ON, OF ENEMY
OCCUPATION. The subsistence of the sovereignty of the legitimate
government in a territory occupied by the military forces of the enemy during a
war, "although the former is in fact prevented from exercising the supremacy
over them" is one of the "rules of international law of our times."
4.ID.; ID.; ID.; "TEMPORARY ALLEGIANCE" SIMILAR TO
ALLEGIANCE OF FOREIGNER TO GOVERNMENT OF HIS RESIDENCE.
The words "temporary allegiance," repudiated by Oppenheim and other
publicists, as descriptive of the relations borne by the inhabitants of the
territory occupied by the enemy toward the military government established
over them, may, at most, be considered similar to the temporary allegiance
which a foreigner owes to the government or sovereign of the territory wherein
he resides in return for the protection he receives and does not do away with
the absolute and permanent allegiance which the citizen residing in a foreign
country owes to his own government or sovereign.
5.ID.; ID.; ID.; ID.; TREASON IN FOREIGN COUNTRY AND IN
TERRITORY UNDER MILITARY OCCUPATION. Just as a citizen or
subject of a government or sovereign may be prosecuted for and convicted of
treason committed in a foreign country, in the same way an inhabitant of a
territory occupied by the military forces of the enemy may commit treason
against his own legitimate government or sovereign if he adheres to the
enemies of the latter by giving them aid and comfort.
6.ID.; ID.; ID.; ID.; ID.; ARTICLE 114 OF REVISED PENAL CODE,
APPLICABILITY OF. Article 114 of the Revised Penal Code, was
applicable to treason committed against the national security of the legitimate
government, because the inhabitants of the occupied territory were still bound
by their allegiance to the latter during the enemy occupation.
7.ID.; ID.; ID.; ID.; POWER OF MILITARY OCCUPANT TO CHANGE
LAWS OR MAKE NEW ONES. Although the military occupant is enjoined
to respect or continue in force, unless absolutely prevented by the
circumstances, those laws that enforce public order and regulate the social
and commercial life of the country, he has, nevertheless, all the powers of a
de facto government and may, at his pleasure, either change the existing laws
or make new ones when the exigencies of the military service demand such
action, that is, when it is necessary for the occupier to do so for the control of
the country and the protection of his army, subject to the restrictions or
limitations imposed by the Hague Regulations, the usages established by
civilized nations, the laws of humanity and the requirements of public
conscience.
8.ID.; ID.; ID.; ID.; MILITARY OCCUPANT CANNOT REPEAL OR
SUSPEND OPERATION OF LAW OF TREASON. Since the preservation
of the allegiance or the obligation of fidelity and obedience of a citizen or
subject to his government or sovereign does not demand from him a positive
action, but only passive attitude or forbearance from adhering to the enemy by
giving the latter aid and comfort, the occupant has no power, as a corollary of
the preceding consideration, to repeal or suspend the operation of the law of
treason.
9.ID.; ID.; ID.; ID.; SUSPENDED ALLEGIANCE, EFFECT OF THEORY
OF, ADOPTED. Adoption of the petitioner's theory of suspended allegiance
would lead to disastrous consequences for small and weak nations or states,
and would be repugnant to the laws of humanity and requirements of public
conscience, for it would allow invaders to legally recruit or enlist the Quisling
inhabitants of the occupied territory to fight against their own government
without the latter incurring the risk of being prosecuted for treason, and even
compel those who are not to aid them in their military operation against the
resisting enemy forces in order to completely subdue and conquer the whole
nation, and thus deprive them all of their own independence or sovereignty
such theory would sanction the action of invaders in forcing the people of a
free and sovereign country to be a party in the nefarious task of depriving
themselves of their own freedom and independence and repressing the
exercise by them of their own sovereignty; in other words, to commit a political
suicide.
10.ID., SOVEREIGNTY, IN WHOM DOES IT RESIDE. Sovereignty
resides in the people of the Philippines.
11.ID.; ID.; COMMONWEALTH OF THE PHILIPPINES A SOVEREIGN
GOVERNMENT. The Commonwealth of the Philippines was a sovereign
government, though not absolute but subject to certain limitations imposed in
the Independence Act and incorporated as Ordinance appended to our
Constitution.
12.ID.; ID.; ID.; QUESTIONS OF SOVEREIGNTY, POLITICAL. The
question of sovereignty is "a purely political question, the determination of
which by the legislative and executive departments of any government
conclusively binds the judges, as well as all other officer, citizens and subjects
of the country."
13.ID.; ID.; ID.; PHILIPPINE REPUBLIC, RIGHT OF, TO PROSECUTE
TREASON COMMITTED DURING JAPANESE OCCUPATION. Just as
treason may be committed against the Federal as well as against the State
Government, in the same way treason may have been committed during the
Japanese occupation against the sovereignty of the United States as well as
against the sovereignty of the Philippine Commonwealth; and that the change
of our form of government from Commonwealth to Republic does not affect
the prosecution of those charged with the crime of treason committed during
the Commonwealth, because it is an offense against the same government
and the same sovereign people, for Article XVIII of our Constitution provides
that: "The government established by this Constitution shall be known as the
Commonwealth of the Philippines. Upon the final and complete withdrawal of
the sovereignty of the United States and the proclamation of Philippine
Independence, the Commonwealth of the Philippines shall thenceforth be
known as the Republic of the Philippines."
R E S O L U T I O N
"In G. R. No. L-409, Anastacio Laurel vs. Eriberto Misa, etc., the
Court, acting on the petition for habeas corpus filed by
Anastacio Laurel and based on the theory that a Filipino citizen who
adhered to the enemy giving the latter aid and comfort during the
Japanese occupation cannot be prosecuted for the crime of treason
defined and penalized by article 114 of the Revised Penal Code, for the
reason (1) that the sovereignty of the legitimate government in the
Philippines and, consequently, the correlative allegiance of Filipino
citizens thereto was then suspended; and (2) that there was a change of
sovereignty over these Islands upon the proclamation of the Philippine
Republic:
"(1)Considering that a citizen or subject owes, not a qualified and
temporary, but an absolute and permanent allegiance, which consists in
the obligation of fidelity and obedience to his government or sovereign;
and that this absolute and permanent allegiance should not be confused
with the qualified and temporary allegiance which of foreigner owes to
the government or sovereign of the territory wherein he resides, so long
as he remains there, in return for the protection he receives, and which
consists in the obedience to the laws of the government or sovereign.
(Carlisle vs. United States, 21 Law. ed., 42g; Secretary of State Webster
Report to the President of the United States in the case of Thraser, 6
Web. Works, 526);
"Considering that the absolute and permanent allegiance of the
inhabitants of a territory occupied by the enemy to their legitimate
government or sovereign is not abrogated or severed by the enemy
occupation, because the sovereignty of the government or sovereign de
jure is not transferred thereby to the occupier, as we have held in the
cases of Co Kim Cham v~. Valdez Tan Keh and Dizon (75 Phil., 113)
and of Peralta vs. Director of Prisons (75 Phil., 285), and if it is not
transferred to the occupant it must necessarily remain vested in the
legitimate government; that the sovereignty vested in the titular
government (which is the supreme power which governs a body politic or
society which constitute the state) must be distinguished from the
exercise of the rights inherent thereto, and may be destroyed, or severed
and transferred to another, but it cannot be suspended because the
existence of sovereignty cannot be suspended without putting it out of
existence or divesting the possessor thereof at least during the so-called
period of suspension; that what may be suspended is the exercise of the
rights of sovereignty with the control and government of the territory
occupied by the enemy passes temporarily to the occupant; that the
subsistence of the sovereignty of the legitimate government in a territory
occupied by the military forces of the enemy during the war, 'although
the former is in fact prevented from exercising the supremacy over them'
is one of the 'rules of international law of our times'; (II Oppenheim, 6th
Lauterpach ed., 1944, p. 482), recognized, by necessary implication, in
articles 23, 44, 45, and 52 of Hague Regulation; and that, as a corollary
of the conclusion that the sovereignty itself is not suspended and
subsists during the enemy occupation, the allegiance of the inhabitants
to their legitimate government or sovereign subsists, and therefore there
is no such thing as suspended allegiance, the basic theory on which the
whole fabric of the petitioner's contention rests;

"Considering that the conclusion that the sovereignty of the
United States was suspended in Castine, set forth in the decision in the
case of United States vs. Rice, 4 Wheaton, 246, 253, decided in 1819,
and quoted in our decision in the cases of Co Kim Cham vs. Valdez Tan
Keh and Dizon and Peralta vs. Director of Prisons,supra, in connection
with the question, not of sovereignty, but of the existence of a
government de facto therein and its power to promulgate rules and laws
in the occupied territory, must have been based, either on the theory
adopted subsequently in the Hague Convention of 1907, that the military
occupation of an enemy territory does not transfer the sovereignty, or on
the old theory that such occupation transfers the sovereignty to the
occupant; that, in the first case, the word 'sovereignty' used therein
should be construed to mean the exercise of the rights of sovereignty,
because as this remains vested in the legitimate government and is not
transferred to the occupier, it cannot be suspended without putting it out
of existence or divesting said government thereof; and that in the second
case, that is, if the said conclusion or doctrine refers to the suspension of
the sovereignty itself, it has become obsolete after the adoption of the
Hague Regulations in 1907, and therefore it can not be applied to the
present case;
"Considering that even adopting the words 'temporary allegiance,'
repudiated by Oppenheim and other publicists, as descriptive of the
relations borne by the inhabitants of the territory occupied by the enemy
toward the military government established over them, such allegiance
may, at most, be considered similar to the temporary allegiance which a
foreigner owes to the government or sovereign of the territory wherein
he resides in return for the protection he receives as above described,
and does not do away with the absolute and permanent allegiance which
the citizen residing in a foreign country owes to his own government or
sovereign; that just as a citizen or subject of a government or sovereign
may be prosecuted for and convicted of treason committed in a foreign
country, in the same way an inhabitant of a territory occupied by the
military forces of the enemy may commit treason against his own
legitimate government or sovereign if he adheres to the enemies of the
latter by giving them aid comfort; and that if the allegiance of a citizen or
subject to his government or sovereign is nothing more than obedience
to its laws in return for the protection he receives, it would necessarily
follow that a citizen who resides in a foreign country or state would, on
one hand,ipso facto acquire the citizenship thereof since he has to obey,
with certain exceptions, the laws of that country which enforce public
order and regulate the social and commercial life, in return for the
protection he receives, and would, on the other hand, lose his original
citizenship, because he would not be bound to obey most of the laws of
his own government or sovereign, and would not receive, while in a
foreign country, the protection he is entitled to in his own;
"Considering that, as a corollary of the suspension of the exercise
of rights of sovereignty by the legitimate government in the territory
occupied by the enemy military forces, because the authority of the
legitimate power to govern has passed into the hands of the occupant
(Article 43, Hague Regulations), the political laws which prescribe the
reciprocal rights, duties and obligation of government and citizens, are
suspended or in abeyance during military occupation (Co Kim Cham vs.
Valdez Tan Keh and Dizon, supra), for the only reason that as they
exclusively bear relation to the ousted legitimate government, they are
inoperative or not applicable to the government established by the
occupant; that the crimes against national security, such as treason and
espionage, inciting to war, correspondence with hostile country, flight to
enemy's country, as well as those against public order, such as
rebellion, sedition, and disloyalty, illegal possession of firearms, which
are of political complexion because they bear relation to, and are
penalized by our Revised Penal Code as crimes against the legitimate
government, are also suspended or become inapplicable as against the
occupant, because they can not be committed against the latter (Peralta
1.S. Director of Prisons, supra); and that, while the offenses against
public order to be preserved by the legitimate government were
inapplicable as offenses against the invader for the reason above stated,
unless adopted by him, were also ill operative as against the ousted
government for the latter was not responsible for the preservation of the
public order in the occupied territory, yet article 114 of the said Revised
Penal Code, was applicable to treason committed against the national
security of the legitimate government, because the inhabitants of the
occupied territory were still bound by their allegiance to the latter during
the enemy occupation;
"Considering that, although the military occupant is enjoined to
respect or continue in force, unless absolutely prevented by the
circumstances, those laws that enforce public order and regulate the
social and commercial life of the country, he has, nevertheless, all the
powers of a de facto government and may, at his pleasure, either
change the existing laws or make new ones when the exigencies of the
military service demand such action, that is, when it is necessary for the
occupier to do so for the control of the country and the protection of his
army, subject to the restrictions or limitations imposed by the Hague
Regulations, the usages established by civilized nations, the laws of
humanity and the requirements of public conscience ( Peralta vs.
Director of Prisons, supra; 1940 United States Rules of Land Warfare
76, 77); and that, consequently, all acts of the military occupant dictated
within these limitations are obligatory upon the inhabitants of the
territory, who are bound to obey them, and the laws of the legitimate
government which have not been adopted, as well and those which,
though continued in force, are in conflict with such laws and orders of the
occupier, shall be considered as suspended or not in force and binding
upon said inhabitants;
"Considering that, since the preservation of the allegiance or the
obligation of fidelity and obedience of a citizen or subject to his
government or sovereign does not demand from him a positive action,
but only passive attitude or forbearance from adhering to the enemy by
giving the latter aid and comfort, the occupant has no power, as a
corollary of the preceding consideration, to repeal or suspend the
operation of the law of treason, essential for the preservation of the
allegiance owed by the inhabitants to their legitimate government, or
compel them to adhere and give aid and comfort to him; because it is
evident that such action is not demanded by the exigencies of the
military service or not necessary for the control of the inhabitants and the
safety and protection of his army, and because it is tantamount to
practically transfer temporarily to the occupant their allegiance to the
titular government or sovereign; and that, therefore, if an inhabitant of
the occupied territory were compelled illegally by the military occupant,
through force, threat or intimidation, to give him aid and comfort, the
former may lawfully resist and die if necessary as a hero, or submit
thereto without becoming a traitor;
"Considering that adoption of the petitioner's theory of suspended
allegiance would lead to disastrous consequences for small and weak
nations or states, and would be repugnant to the laws of humanity and
requirements of public conscience, for it would allow invaders to legally
recruit or enlist the Quisling inhabitants of the occupied territory to fight
against their own government without the latter incurring the risk of being
prosecuted for treason, and even compel those who are not to aid them
in their military operation against the resisting enemy forces in order to
completely subdue and conquer the whole nation, and thus deprive them
all of their own independence or sovereignty such theory would
sanction the action of invaders in forcing the people of a free and
sovereign country to be a party i n the nefarious task of depriving
themselves of their own freedom and independence and repressing the
exercise by them of their own sovereignty; in other words, to commit a
political suicide;
"(2)Considering that the crime of treason against the government
of the Philippines defined and penalized in article 114 of the Penal Code,
though originally intended to be a crime against said government as then
organized by authority of the sovereign people of the United States,
exercised through their authorized representative, the Congress and the
President of the United States, was made, upon the establishment of the
Commonwealth Government in 1935 , a crime against the Government
of the Philippines established by authority of the people of the
Philippines, in whom the sovereignty resides according to section 1,
Article II, of the Constitution of the Philippines, by virtue of the provision
of section 2, Article XVI thereof, which provides that all laws of the
Philippine Islands . . . shall remain operative, unless inconsistent with
this Constitution . . . and all references in such laws to the Government
or officials of the Philippine Islands, shall be construed, in so far as
applicable, to refer to the Government and corresponding officials under
this Constitution;'
Considering that the Commonwealth of the Philippines was a
sovereign government, though not absolute but subject to certain
limitations imposed in the Independence Act and incorporated as
Ordinance appended to our Constitution, was recognized not only by the
Legislative Department or Congress of the United States in approving
the Independence Law above quoted and the Constitution of the
Philippines, which contains the declaration that 'Sovereignty resides in
the people and all government authority emanates from them' (section 1,
Article II), but also by the Executive Department of the United States;
that the late President Roosevelt in one of his messages to Congress
said, among others, 'As I stated on August 12, 1943, the United States in
practice regards the Philippines as having now the status as a
government of other independent nations in fact all the attributes of
complete and respected nationhood' (Congressional Record, Vol. 29,
part 6, page 8173); and that it is a principle upheld by the Supreme
Court of the United States in many cases, among them in the case of
Jones vs. United States (137 U. S., 202; 34 Law. ed., 691, 696) that the
question of sovereignty is 'a purely political question, the determination
of which by the legislative and executive departments of any government
conclusively binds the judges, as well as all other officers, citizens and
subjects of the country.'

"Considering that section I (1) of the Ordinance appended to the
Constitution which provides that pending the final and complete
withdrawal of the sovereignty of the United States 'All citizens of the
Philippines shall owe allegiance to the United States', was one of the few
limitations of the sovereignty of the Filipino people retained by the United
States, but these limitations do not do away or are not inconsistent with
said sovereignty, in the same way that the people of each State of the
Union preserves its own sovereignty although limited by that of the
United States conferred upon the latter by the States; that just as to
reason may be committed against the Federal as well as against the
State Government, in the same way treason may have been committed
during the Japanese occupation against the sovereignty of the United
States as well as against the sovereignty of the Philippine
Commonwealth; and that the change of our form of government from
Commonwealth to Republic does not affect the prosecution of those
charged with the crime of treason committed during the Commonwealth,
because it is an offense against the same government and the same
sovereign people, for Article XVIII of our Constitution provides that 'The
government established by this Constitution shall be known as the
Commonwealth of the Philippines. Upon the final and complete
withdrawal of the sovereignty of the United States and the proclamation
of Philippine independence, the Commonwealth of the Philippines shall
thenceforth be known as the Republic of the Philippines';
"This Court resolves, without prejudice to write later on a more
extended opinion, to deny the petitioner's petition, as it is hereby denied,
for the reasons above set forth and for others to be stated in the said
opinion, without prejudice to concurring opinion therein, if any. Messrs.
Justices Paras and Hontiveros dissent in a separate opinion. Mr. Justice
Perfecto concurs in a separate opinion."
Separate Opinions
PERFECTO, J ., concurring:
Treason is a war crime. It is not an all-time offense. It cannot be
committed in peace time. While there is peace, there are no traitors. Treason
may be incubated when peace reigns. Treasonable acts may actually be
perpetrated during peace, but there are no traitors until war has started.
As treason is basically a war crime, it is punished by the state as a
measure of self-defense and self-preservation. The law of treason is an
emergency measure. It remains dormant until the emergency arises. But as
soon as war starts, it is relentlessly put into effect. Any lukewarm attitude in its
enforcement will only be consistent with national harakiri. All war efforts would
be of no avail if they should be allowed to be sabotaged by fifth columnists, by
citizens who have sold their country out to the enemy, or any other kind of
traitors, and this would certainly be the case if the law cannot be enforced
under the theory of suspension.
Petitioner's thesis that allegiance to our government was suspended
during enemy occupation is advanced in support of the proposition that, since
allegiance is identical with obedience to law, during the enemy occupation,
the laws of the Commonwealth were suspended. Article 114 of the Revised
Penal Code, the law punishing treason, under the theory, was one of the laws
obedience to which was also suspended.
Allegiance has been defined as the obligation for fidelity and obedience
which the individual owes to his government or his sovereign in return for the
protection which he receives.
"'Allegiance,' as the term is generally used, means fealty or fidelity
to the government of which the person is either a citizen or subject.
Murray vs. The Charming Betsy, 6 U. S. (2 Cranch), 64, 120; 2 Law. ed.,
208.
"'Allegiance' was said by Mr. Justice Story to be 'nothing more
than the tie or duty of obedience of a subject to the sovereign, under
whose protection he is.' United States vs. Wong Kim Ark, 18 S. Ct., 456,
461; 169 U. S., 649; 42 Law. ed., 890.
"Allegiance is that duty which is due from every citizen to the
state, a political duty binding on him who enjoys the protection of the
Commonwealth, to render service and fealty to the federal government.
It is that duty which is reciprocal to the right of protection, arising from
the political relations between the government and the citizen.
Wallace vs. Harmstad, 44 Pa. (8 Wright), 492, 501.
"By 'allegiance' is meant the obligation to fidelity and obedience
which the individual owes to the government under which he lives, or to
his sovereign, in return for the protection which he receives. It may be an
absolute and permanent obligation, or it may be a qualified and
temporary one. A citizen or subject owes an absolute and permanent
allegiance to his government or sovereign, or at least until, by some
open and distinct act, he renounces it and becomes a citizen or subject
of another government or sovereign, and an alien while domiciled in a
country owes it a temporary allegiance, which is continuous during his
residence. Carlisle vs. United States, 83 U. S.(16 Wall.), 147, 154; 21
Law ed., 426.
"'Allegiance,' as defined by Blackstone, 'is the tie or ligament
which binds the subject to the King, in return for that protection which the
King affords the subject. Allegiance, both expressed and implied, is of
two sorts, the one natural, the other local, the former being per actual,
the latter temporary. Natural allegiance is such as is due from all men
born within the King's dominions immediately upon their birth, for
immediately upon their birth they are under the King's protection. Natural
allegiance is perpetual, and for this reason, evidently founded on the
nature of government. Allegiance is a debt due from the subject upon an
implied contract with the prince that so long as the one affords protection
the other will demean himself faithfully. Natural-born subjects have a
great variety of rights which they acquire by being born within the King's
allegiance, which can never be forfeited but by their own misbehavior;
but the rights of aliens are much more circumscribed, being acquired
only by residence, and lost whenever they remove. If an alien could
acquire a permanent property in lands, he must owe an allegiance
equally permanent to the King, which would probably be inconsistent
with that which he owes his natural liege lord; besides, that thereby the
nation might, in time, be subject to foreign influence and feel many other
inconveniences.' Indians w ithin the state are not aliens, but citizens
owing allegiance to the government of a state, for they receive protection
from the government and are subject to its laws. They are born in
allegiance to the government of the state. Jackson vs. Goodell, 20
Johns., 188, 911." (3 Words and Phrases, Permanent ed., pp. 226-227.)
"Allegiance. Fealty or fidelity to the government of which the
person is either a citizen or subject; the duty which is due from every
citizen to the state; a political duty, binding on him who enjoys the
protection of the commonwealth, to render service and fealty to the
federal government; the obligation of fidelity and obedience which the
individual owes to the government or to the sovereign under which he
lives in return for the protection he receives; that duty which is reciprocal
to the right of protection, arising from the political relations between the
government and the citizen.
"Classification. Allegiance is of four kinds, namely: (1) Natural
allegiance that which arises by nature and birth; (2) acquired
allegiance that arising through some circumstance or act other than
birth, namely, by denotation or naturalization; (3) local allegiance the
arising from residence simply within the country, for however short a
time; and (4) legal allegiance that arising from oath, taken usually at
the town or reed, for, by the common law, the oath of allegiance might
be tendered to every one upon attaining the age of twelve years." (3 C.
J. S., 'p. 885.)
"Allegiance. The obligation of fidelity and obedience which the
individual owes to the government under which he lives, or to his
sovereign in return for the protection he receives. 15 R. C. L., 140."
(Ballentine, Law Dictionary, p. 68.)
"'Allegiance,' as its etymology indicates, is the name for the
tie which binds the citizen to his state the obligation of
obedience and support which he owes to it. The state is the
political person to whom this liege fealty is due. Its substance is
the aggregate of persons owing this allegiance. The machinery
through which it operates is its government. The persons who
operate this machinery constitute its magistency. The rules of
conduct which the state utters or enforces are its law, and
manifest its will. This will, viewed as legally supreme, is its
sovereignty." (W. W. Willoughby, Citizenship and Allegiance in
Constitutional and International Law, 1 American Journal of
International Law, p. 915.)
"The obligations flowing from the relation of a state and its
nationals are reciprocal in character. This principle had been aptly stated
by the Supreme Court of the United States in its opinion in the case of
Luria vs. United States:
"Citizenship is membership in a political society and implies a
duty of allegiance on the part of the member and a duty of protection on
the part of the society. These are reciprocal obligations, one being a
compensation for the other." (3 Hackworth, Digest of International Law,
1942 ed., p. 6.)
"Allegiance. The tie which binds the citizen to the government,
in return for the protection which the government affords him. The duty
which the subject owes to the sovereign, correlative with the protection
received.
"It is a comparatively modern corruption of allegiance (ligeantia),
which is derived from liege (ligius), meaning absolute or unqualified. It
signified originally liege fealty, i. e., absolute and unqualified fealty. 18 L.
Q. Rev., 47.
xxx xxx xxx

"Allegiance may be an absolute and permanent obligation, or it
may be a qualified and temporary one; the citizen or subject owes the
former to his government or sovereign, until by some act he distinctly
renounces it, whilst the alien domiciled in the country owes a temporary
and local allegiance continuing during such residence. (Carlisle vs.
United States, 16 Wall. [U. S.], 154; 21 Law. ed., 42G." (1
Rouvier's Law Dictionary, p. 179.)
The above quotations express ideas that do not fit exactly into the
Philippine pattern in view of the revolutionary insertion in our Constitution of
the fundamental principle that "sovereignty resides in the people and all
government authority emanates from them.' (Section 1, Article II.) The
authorities above quoted, judges and juridical publicists define allegiance with
the idea that sovereignty resides somewhere else, on symbols or subjects
other than the people themselves. Although it is possible that they had
already discovered that the people and only the people are the true sovereign,
their minds were not yet free from the shackles of the tradition that the powers
of sovereignty have been exercised by princes and monarchs, by sultans and
emperors, by absolute and tyrannical rules whose ideology was best
expressed in the famous words of one of the kings of France: "L'etat c'est
moi," or such other persons or group of persons posing as the government, as
an entity different and in opposition to the people themselves. Although
democracy has been known ever since old Greece, and modern democracies
function on the assumption that sovereignty resides in the people, nowhere is
such principle more imperative than in the pronouncement embodied in the
fundamental law of our people.
To those who think that sovereignty is an attribute of government, and
not of the people, there may be some plausibility in the proposition that
sovereignty was suspended during the enemy occupation, with the
consequence that allegiance must also have been suspended, because our
government stopped to function in the country. But the idea cannot have any
place under our Constitution. If sovereignty is an essential attribute of our
people, according to the basic philosophy of Philippine democracy, it could
not have been suspended during the enemy occupation. Sovereignty is the
very life of our people, and there is no such thing as "suspended life." There is
no possible middle situation between life and death. Sovereignty is the very
essence of the personality and existence of our people. Can anyone imagine
the possibility of "suspended personality" or "suspended existence" of a
people? In no time during enemy occupation have the Filipino people ceased
to be what they are.
The idea of suspended sovereignty or suspended allegiance is
incompatible with our Constitution.
There is similarity in characteristics between allegiance to the sovereign
and a wife's loyalty to her husband. Because some external and
insurmountable force precludes the husband from exercising his marital
powers, functions, and duties, and the wife is thereby deprived of the benefits
of his protection, may the wife invoke the theory of suspended loyalty and
may she freely share her bed with the assailant of their home? After giving aid
and comfort to the assailant and allowing him to enjoy her charms during the
former's stay in the invaded home, may the wife allege as defense for her
adultery the principle of suspended conjugal fidelity?
Petitioner's thesis on change of sovereignty at the advent of
independence on July 4, 1946, is unacceptable. We have already decided in
Brodett vs. De la Rosa and Vda. de Escaler (p. 752, ante) that the
Constitution of the Republic is the same as that of the Commonwealth. The
advent of independence had the effect of changing the name of our
Government and the withdrawal by the United States of her power to exercise
functions of sovereignty in the Philippines. Such facts did not change the
sovereignty of the Filipino people. That sovereignty, following our
constitutional philosophy, has existed ever since our people began to exist. It
has been recognized by the United States of America, at least since 1935,
when President Roosevelt approved our Constitution. By such act, President
Roosevetl, as spokeman of the American people, accepted and recognized
the principle that sovereignty resides in the people that is, that Philippine
sovereignty resides in the Filipino people.
The same sovereignty had been internationally recognized long before
the proclamation f independence on July 4, 1946. Since the early part of the
Pacific war, President Quezon had been sitting as representative of a
sovereign people in the Allied War Council, and in June, 1945, the same
Filipino people took part outstanding and brilliant, it may be added in the
drafting and adoption of the charter of the United Nations, the unmistakable
forunner of the future democratic constitution of the would government
envisioned by all those who adhere to the principle of unity of all mankind, the
early realization of which is anxiously desired all who want to be spared the
sufferings, misery and disaster of another war.
Under our Constitution, the power to suspend laws is of legislative
nature and is lodged in Congress. Sometimes it is delegated to the Chief
Executive, such as the power granted by the Election to the President to
suspend the election in certain districts and areas for strong reasons, such as
when there is rebellion, or a public calamity, but it has never been exercised
by tribunals. The Supreme Court has the power to declare null and void all
laws violative of the Constitution, but it has no power, authority, or jurisdiction
to suspend or declare suspended any valid law, such as the one on treason
which petitioner wants to be included among the laws of ther Commonwealth
which, by, his theory of suspended allegiance and suspended sovereignty, he
claims have been suspended during the Japanese occupation.
Suppose President Quezon and his government, instead going from
Corregidor to Australia, and later to Washington, had fled to the mountains of
Luzon, and a group of Filipino renegades should have killed them to serve the
interests of the Japanese imperial forces. By petitioner's theory, those
renegades cannot be prosecuted for treason or for rebellion or sedition, as the
laws punishing them were suspended. Such absurd result betrays the
untenability of the theory.
"The defense of the State is a prime duty of Government, and in the
fulfillment of that duty all citizens may be required by law to render personal,
military or civil service." Thus, section 2 of Article II of the Constitution
provides: That duty of defense becomes more imperative in time of war and
when the country is invaded by an aggressor nation. How can it be fulfilled if
the allegiance of the citizens to the sovereign people is suspended during
enemy occupation? The framers of the Constitution surely did not entertain
even for a moment the absurdity that when the allegiance of the citizens to the
sovereign people is more needed in the defense of the survival of the state,
the same should be suspended, and that upon such suspension those who
may be required to render personal, military or civil service may claim
exemption from the indispensable duty of serving their country in distress.
Petitioner advances the theory that protection is the consideration of
allegiance. He argues that the Commonwealth Government having been
incapacitated during enemy occupation to protect the citizens, the latter were
relieved of their allegiance to said government. The proposition is untenable.
Allegiance to the sovereign is an indispensable bond for the existence of
society. If that bond is dissolved, society has to disintegrate. Whether or not
the existence of the latter is the result of the social compact mentioned by
Roseau, there can be no question that organized society would be dissolved if
it is not united by the cohesive power of the citizen's allegiance. Of course, the
citizens are entitled to the protection of their government, but whether or not
that government fulfills that duty, is immaterial to the need of maintaining the
loyalty and fidelity of allegiance, in the same way that the physical forces of
attraction should be kept unhampered if the life of an individual should
continue, irrespective of the ability or inability of his mind to choose the most
effective measures of personal protection.
After declaring that all legislative, executive, and judicial processes lad
during and under the Japanese regime, whether executed by the Japanese
themselves or by Filipino officers of the puppet government they had set up,
are null and void, as we have done in our opinions in Co Kim Cham vs.
Valdez Tan Keh and Dizon (75 Phil., 113), in Peralta vs. Director of Prison
(75, Phil., 285), and in several other cases where the same question has been
mentioned, we cannot consistently accept petitioner's theory.
If all laws or legislative acts of the enemy during the occupation were
null and void, and as we cannot imagine the existence of organized society,
such as the one constituted by the Filipino people, without laws governing, it,
necessarily we have to conclude that the laws of the Commonwealth were the
ones in effect during the occupation and the only ones that could claim
obedience from our citizens.
Petitioner would want us to accept the thesis that during the occupation
we owed allegiance to the enemy. To give way to that paradoxical and
disconcerting allegiance, it is suggested that we accept that our allegiance to
our legitimate government was suspended. Petitioner's proposition has to fall
by its own weight, because of its glaring absurdities. Allegiance, like its
synonyms, loyalty and fidelity, is based on feelings of attraction, love,
sympathy, admiration, respect, veneration, gratitude, amity, understanding,
friendliness. These are the feelings or some foe feelings that bind us to our
own people, and are the natural roots of the duty of allegiance we owe them.
The enemy only provokes repelling and repulsive feelings hate, anger,
vexation, chagrin, mortification, resentment, contempt, spitefulness. The
natural incompatibility of political social and ethical ideologies, between our
people and the Japanese, making impossible the existence of any feeling of
attraction between them, aside from the initial fact that the Japanese invaded
our country as our enemy, was aggravated by the morbid complexities of
haughtiness, braggadocio and beastly brutality of the Nippon soldiers and
officers in their dealings with even the most inoffensive of our citizens.

Giving bread to our enemy, and, after slapping one side of our face,
offer him the other to be further slapped, may appear to be divinely charitable,
but to make them a reality, it is necessary to change human nature. Political
actions, legal rules, and judicial decisions deal with human relations, taking
man as he is, not as he should be. To love the enemy is not natural. As long
as human psychology remains as it is, the enemy shall always be hated. Is it
possible to conceive an allegiance based on hatred?
The Japanese, having waged against us an illegal war condemned by
prevailing principles of international law, could not have established in our
country any government that can be legally recognized as de facto. They
came as bandits and ruffians, and it is inconceivable that banditry and
ruffianism can claim any duty of allegiance even a temporary one from a
decent people.
One of the implications of petitioner's theory, as intimated somewhere,
is that the citizens, in case of invasion, are free to do anything not forbidden
by the Hague Conventions. Anybody will notice immediately that the result will
be the doom of small nations and peoples, by whetting the covetousness of
strong powers prone on imperialistic practices. In the imminence of invasion,
weak-hearted soldiers of the smaller will readily throw away their arms to rally
behind palladium of the invaders.
Two foot he three great departments of our Government have already
rejected petitioner's theory since September 25, 1945, the day when
Commonwealth Act No. 682 took effect. By said act, creating the People's
Court to try and decide all cases of crime against national security "committed
between December 8, 1941 and September 2, 1945," (section 2), the
legislative and executive have jointly declared that during the period above
mentioned, including the time of Japanese occupation, all laws punishing
crimes against national security, including article 114 of the Revised Penal
Code, punishing treason, had reminded in full effect an should be enforced.
That no one raised a voice in protest against the enactment of said and
that no one, at the time the act was being considered by the Senate and the
House of Representatives, ever dared to expose the useless of creating a
People's Court to try crimes which, as claimed by petitioner, could not have
been committed as the laws punishing them have been suspended, is a
historical fact of which the Supreme Court may the take judicial notice. This
fact shows universal and unanimous agreement of our people that the laws of
the Commonwealth were not suspended and that the theory of suspended
allegiance is just an afterthought provoked by a desperate effort to help quash
the pending treason cases at any cost.
Among the arguments adduced in favor of petitioner's theory is that it is
based n generally accepted principles of international law, although this
argument becomes futile by petitioner's admission that the theory is
advantageous to strong powers but harmful to small and weak nations, thus
hinting that the latter cannot accept it by heart. Suppose we accept at face
value the premise that the theories, urged by petitioner, of suspended
allegiance and suspended sovereignty are based on generally accepted
principles of international law. As the latter forms part of our laws by virtue of
the provisions of section 3 of Article II of the Constitution, it seems that there
is no alternative but to accept the theory. But the theory has the effect of
suspending the laws, especially those political in nature. There is no law more
political in nature than the Constitution of the Philippines. The result is an
inverted reproduction of the Greek myth of Saturn devouring his own children.
Here, under petitioner's theory, the offspring devours its parent.
Can we conceive of an instance in which the Constitution was
suspended even for a moment?
There is conclusive evidence that the legislature, as policy determining
agency of government, even since the Pacific war started on December 7,
1941, intimated that it would not accept the idea that our laws should be
suspended during enemy occupation. It must be remembered that in the
middle of December, 1941, when Manila and other parts of the archipelago
were under constant bombing by Japanese aircraft and enemy forces had
already set foot somewhere in the Philippines, the Second National Assembly
passed Commonwealth Act No. 671, which came into effect on December 16,
1941. When we approved said act, we started from the premise that all our
laws shall continue in effect during the emergency, and in said act we even
went to the extent of authorizing the President "to continue in fore laws and
appropriations which would lapse or otherwise become inoperative," (section
2, [d]), and also to "promulgate such rules and regulations as he may deem
necessary to carry out the national policy," (section 2 ), that "the existence of
war between the United States and other countries of Europe and Asia, which
involves the Philippines, makes it necessary to invest the President with
extraordinary powers in order to meet the resulting emergency." (Section 1.)
To give more emphasis to the intimation, we provided that the rules and
regulations provided "shall be in force and effect until the Congress of the
Philippines small otherwise provide," foreseeing the possibility that Congress
may not meet as scheduled as a result of the emergency, including invasion
and occupation by the enemy. Everybody was then convinced that we did not
have available the necessary means of repelling effectively the enemy
invasion.
Maybe it is not out of place to consider that the acceptance of
petitioner's theory of suspended allegiance will cause a great injustice to
those who, although innocent, are now under indictment for treason and other
crimes involving disloyalty to their country, because their cases will be
dismissed without the opportunity for them to re vindicate themselves. Having
been acquitted upon a mere legal technicality which appears to us to be
wrong, history will indiscriminately classify them with the other accused who
were really traitors to their country. Our conscience revolts against the idea of
allowing the innocent ones to go down in the memory of future generations
with the infamous stigma of having betrayed their own people. They should
not be deprived of the opportunity to show through the due process of law that
they are free from all blame and that, if they were really patriots, they acted as
such during the critical period of test.
HILADO, J ., concurring:
I concur in the result reached in the majority opinion to the effect that
during the so-called Japanese occupation of the Philippines (which was
nothing more than the occupation of Manila and certain other specific regions
of the Islands which constituted the minor area of the Archipelago) the
allegiance of the citizens of this country to their legitimate government and to
the United States was not suspended, as well as the ruling that during the
same period there was no change of sovereignty here; but my reasons are
different and I proceed, to set them forth:
I.SUSPENDED ALLEGIANCE
(a)Before the horror and atrocities of World War I, which were multiplied
more than a hundred-fold in World War II, the nations had evolved certain
rules and principles which came to be known as International Law, governing
their conduct with each other and toward their respective citizens and
inhabitants, in the armed forces or in civilian life, in time of peace or in time of
war. During the ages which preceded that first world conflict the civilized
governments had no realization of the potential excesses of which "men's
inhumanity to man" could be capable. Up to that time war was, at least under
certain conditions, considered as sufficiently justified, and the nations had not
on that account, proscribed nor renounced it as an instrument of national
policy, or as a means of settling international disputes. It is not for us now to
dwell upon the reasons accounting for this historical fact. Suffice it to
recognize its existence in history.
But when in World War I civilized humanity saw that war could be, as it
actually was, employed for entirely different reasons and from entirely
different motives, compared to previous wars, and the instruments and
methods of warfare had been so materially changed as not only to involve the
contending armed forces on well defined battlefields or areas, on land, in the
sea, and in the air, but to spread death and destruction to the innocent civilian
populations and to their properties, not only in the countries engaged in the
conflict but also in neutral ones, no less than 61 civilized nations and
governments, among them Japan, had to formulate and solemnly subscribe to
the now famous Briand-Kellogg Pact in the year 1928. As said by Justice
Jackson of the United States Supreme Court, as chief counsel for the United
States in the prosecution of "Axis war criminals," in his report to President
Truman of June 7, 1945:
"International law is not capable of development by legislation, for
there is no continuously sitting international legislature. Innovations and
revisions in international law are brought about by the action of
governments designed to meet a change in circumstances. It grows, as
did the common law, through decisions reached from time to time in
adopting settled principles to new situations.
xxx xxx xxx
"After the shock to civilization of the war of 1914-1918, however,
a marked reversion to the earlier and sounder doctrines of international
law took place. By the time the Nazis came to power it was thoroughly
established that launching an aggressive war or the institution of war by
treachery was illegal and that the defense of legitimate warfare was no
longer available to those who engaged in such an enterprise. It is high
time that we act on the juridical principle that aggressive war-making is
illegal and criminal.

"The re-establishment of the principle of justifiable war is
traceable in many steps. One of the most significant is the Briand-
Kellogg Pact of 1928 by which Germany, Italy, and Japan, in common
with the United States and practically all the nations of the world,
renounced war as an instrument of national policy, bound themselves to
seek the settlement of disputes only by pacific means, and condemned
recourse to war for the solution of international controversies.
"Unless this Pact altered the legal status of wars of aggression, it
has no meaning at all and comes close to being an act of deception. In
1932 Mr. Henry I,. Stimson, as United States Secretary of State, gave
voice to the American concept of its effect. He said, 'war between
nations was renounced by the signatories of the Briand-Kellogg Treaty.
This means that it has become illegal throughout practically the entire
world It is no longer to be the source and subject of rights. It is no longer
to the principle around which the duties, the conduct, and the rights of
nations revolve. It is an illegal thing . . .. By that very act we have made
obsolete many legal precedents and have given the legal profession the
task of re-examining many of its Codes and treaties.'
"This Pact constitutes only one reversal of the viewpoint that all
war is legal and has brought international law into harmony with the
common sense of mankind that justifiable war is a crime.
"Without attempting an exhaustive catalogue, we may mention
the Geneva Protocol of 1924 for the Pacific Settlement of International
Disputes, signed by the representatives of forty-eight governments,
which declared that 'a war of aggression constitutes . . . an international
crime.'
"The Eighth Assembly of the league of Nations in 1927, on
unanimous resolution of the representatives of forty-eight member-
nations, including Germany, declared that a war of aggression
constitutes an international crime. At the Sixth Pan-American
Conference of 1928, the twenty-one American Republics unanimously
adopted a resolution stating that 'war of aggression constitutes
an international crime against the human species.'
xxx xxx xxx
"We therefore propose to charge that a war of aggression is
a crime, and that modern international law has abolished the defense
that those who incite or wage it are engaged in legitimate business. Thus
may the forces of the law be mobilized on the side of Peace." (U. S. A.
An American Review," published by the United States Office of War
Information, Vol. 2, No. 10; emphasis supplied.)
When Justice Jackson speaks of "a marked reversion to the earlier and
sounder doctrines of international law" and "the re-establishment of the
principle of justifiable war," he has in mind no other than "the doctrine taught
by Grotius, the father of international law, that there is a distinction between
the just and the unjust war the war of defense and the war of aggression"
to which he alludes in an earlier paragraph of the same report.
In the paragraph of said report immediately preceding the one last
above mentioned Justice Jackson says that "international law as taught in the
19th and the early part of the 20th century generally declared that war-making
was not illegal and no crime at law." But, as he says in one of the paragraphs
hereinabove quoted from that report, the Briand-Kellogg Pact constitutes a
reversal of the viewpoint that all war is legal and has brought international law
into harmony with the common sense of mankind that unjustifiable war is a
crime. Then he mentions as other reversals of the same viewpoint, the
Geneva Protocol of 1924 for the Pacific Settlement of International Disputes,
declaring that a war of aggression constitutes an international crime; the 8th
assembly of the League of Nations in 1927, declaring that a war of aggression
constitutes an international crime; and the 6th Pan-American Conference of
1928, which unanimously adopted a resolution stating that war of aggression
constitutes an international crime against the human species: which
enumeration, he says, is not an attempt at an exhaustive catalogue.
It is not disputed that the war started by Japan in the Pacific, first,
against the United States, and later, in rapid succession, against other allied
nations, was a war of aggression and utterly unjustifiable. More aggressive
still, and more unjustifiable, as admitted on all sides, was its attack; against
the Philippines and its consequent invasion and occupation of certain areas
thereof.
Some of the rules and principles of international law which have been
cited for petitioner herein in support of his theory of suspended allegiance,
have been evolved and accepted during those periods of the history of
nations when all war was considered legal, as stated by Justice Jackson, and
the others have reference to military occupation in the course of really
justifiable war.
Japan in subscribing the Briand-Kellogg Pact thirteen years before she
started the aggressive war which threw the entire Pacific area into a seething
cauldron from the last month of 1941 to the first week of September, 1945,
expressly agreed to outlaw, proscribe and renounce war as an instrument of
national policy, and bound herself to seek the settlement of her disputes with
other nations only by pacific means. Thus she expressly gave her consent to
that modification of the then existing rules and principles of international law
governing the matter. With that modification, all the signatories to the pact
necessarily accepted and bound themselves to abide by all its implications,
among them the outlawing, proscription and renunciation of military
occupation of another nation's territory in the course of a war thus outlawed,
proscribed and renounced. This is only one way of saying that the rules and
principles of international law therefore existing on the subject of military
occupation were automatically abrogated and rendered ineffective in all future
cases of war coming under the ban and condemnation of the pact.
If an unjustifiable war is a crime; if a war of aggression constitutes an
international crime; if such a war is an international crime against the human
species: a nation which occupies a foreign territory in the course of such a
war cannot possibly, under any principle of natural or positive law, acquire or
possess any legitimate power or right growing out or incident to such
occupation. Concretely, Japan in criminally invading the Philippines and
occupying certain portions of its territory during the Pacific war, could not have
nor exercise, in the legal sense and only in this sense should we speak
here with respect this country and its citizens, any more than could a burglar
breaking through a man's house pretends to have or to exercise any legal
power or right within that house with respect either to the person of the owner
or to his property. To recognize in the first instance any legal power or right on
the part of the invader, and in the second any legal power or right on the part
of the burglar, the same as in case of a military occupant in the course of a
justifiable war, would be nothing short of legalizing the crime itself. It would be
the most monstrous and unpardonable contradiction to prosecute, condemn
and hang the appropriately called war criminals of Germany, Italy, and Japan,
and at the same time recognize any lawfulness in their occupation of
territories they have so barbarously and feloniously invaded. And let it not be
forgotten that the Philippines is a member of the United Nations who have
instituted and conducted the so-called war crimes trials. Neither should we
lose sight of the further fact that this government has a representative in the
international commission currently trying the Japanese war criminals in Tokyo.
These facts leave no room for doubt that this government is in entire accord
with the other United Nations in considering the Pacific war started by Japan
as a crime. Not only this, but this country had six years before the outbreak of
the Pacific war already renounced war as an instrument of national policy (
Constitution, Article II, section 2), thus in consequence adopting the doctrine
of the Briand-Kellogg Pact.
Consequently, it is submitted that it would be absolutely wrong and
improper for this Court to apply to the occupation by Japan of certain areas of
the Philippines during that war the rules and principles of international law
which might be applicable to a military occupation occurring in the course of a
justifiable war. How can this Court recognize any lawfulness or validity in that
occupation when our own government has sent a representative to said
international commission in Tokyo trying the Japanese "war criminals"
precisely for the "crimes against humanity and peace" committed by them
during World War II of which said occupation was but part and parcel? In such
circumstances how could such occupation produce no less an effect than the
suspension of the allegiance of our people to their country and government?
(b)But even in the hypothesis and not more than a mere hypothesis
that when Japan occupied the City of Manila and certain other areas of the
Philippines she was engaged in a justifiable war, still the theory of suspended
allegiance would not hold good. The continuance of the allegiance owed to a
nation by its citizens is one of those high privileges of citizenship which the
law of nations denies to the occupant the power to interfere with.
" . . . His (of occupant) rights are not, however, commensurate
with his power. He is thus forbidden to take certain measures which he
may be able to apply, and that irrespective of their efficacy. The
restrictions imposed upon him are in theory designed to protect the
individual in the enjoyment of some highly important privileges. These
concern his allegiance to the de jure sovereign, his family honor and
domestic relations, religious convictions, personal service, and
connection with or residence in the occupied territory.

"The Hague Regulations declare that the occupant is forbidden to
compel the inhabitants to swear allegiance to the hostile power. . . ." (III
Hyde, International Law, 2d revised ed., pp 1898-1899.)
". . .Nor may he (occupant) compel them (inhabitants) to take an
oath of allegiance. Since the authority of the occupant is not sovereignty,
the inhabitants owe no temporary allegiance to him. . . ." (II Oppenheim,
International Law, pp. 341-344)
The occupant's lack of authority to exact an oath of allegiance from the
inhabitants of the occupied territory is but a corollary of the continuance of
their allegiance to their own lawful sovereign. This allegiance does not consist
merely in obedience to the laws of the lawful sovereign, but more essentially
consists in loyalty or fealty to him. In the same volume and pages of
Oppenheim's work above cited, after the passage to the effect that the
inhabitants of the occupied territory owe no temporary allegiance to the
occupant it is said that "On the other hand, he may compel them to take an
oath sometimes called an 'oath of neutrality' willingly to submit to his
'legitimate commands.' Since, naturally, such "legitimate commands" include
the occupant's laws, it follows that said occupant, where the rule is applicable,
has the right to compel the inhabitants to take an oath of obedience to his
laws; and since, according to the same rule, he cannot exact from the
inhabitants an oath of allegiance, it follows that obedience to his laws, which
he can exact from them, does not constitute allegiance.
(c)The theory of suspended allegiance is unpatriotic to the last degree.
To say that when one's country is unable to afford him its protection, he
ceases to be bound to it by the sacred ties of allegiance, is to advocate the
doctrine that precisely when his country is in such distress, and therefore
most needs his loyalty, he is absolved from that loyalty. Love of country
should be something permanent and lasting, ending only in death; loyalty
should be its worthy offspring. The outward manifestation of one or the other
may for a time be prevented or thwarted by the irresistible action of the
occupant; but this should not in the least extinguish nor obliterate the invisible
feelings, and prompting of the spirit. And beyond the unavoidable
consequences of the enemy's irresistible pressure, those invisible feelings
and prompting of the spirit of the people should never allow them to act, to
speak, nor even to think a whit contrary to their Love and loyalty to the
Fatherland. For them, indicted, to face their country and say to it that,
because when it was overrun and vanquished by the barbarous invader and,
in consequence, was disabled from affording them protection, they were
released from their sacred obligation of allegiance and loyalty, and could
therefore freely adhere to its enemy, giving him aid and comfort, incurring no
criminal responsibility therefor, would only tend to aggravate their crime.
II.CHANGE OF SOVEREIGNTY
Article II, section 1, of the Constitution provides that "Sovereignty
resides in the people and all government authority emanates from them." The
Filipino people are the self-same people before and after Philippine
Independence, proclaimed on July 4, 1946. During the life of the
Commonwealth sovereignty resided in them under the Constitution; after the
proclamation of independence that sovereignty remained with them under the
very same fundamental law. Article XVIII of the said Constitution stipulates
that the government established thereby shall be known as the
Commonwealth of the Philippines; and that upon the final and complete
withdrawal of the sovereignty of the United States and the proclamation of
Philippine independence, "The Commonwealth of the Philippines shall
thenceforth be known as the Republic of the Philippines.' Under this provision
the Government of the Philippines immediately prior to independence was
essentially to be the identical government thereafter only the name of that
government was to be changed.
Both before and after the adoption of the Philippine Constitution the
people of the Philippines were and are always the plaintiff in all criminal
prosecutions, the case being entitled: "The People of the Philippines vs. (the
defendant or defendants)." This was already true in prosecutions under the
Revised Penal Code containing the law of treason. "The Government of the
Philippines" spoke of in article 114 of said Code merely represents the people
of the Philippines. Said code was continued, along with the other laws, by
Article XVI, section 2, of the Constitution, which constitutional provision further
directs that "all references in such laws to the Government or officials of the
Philippine Islands shall be construed, in so far as applicable, to refer to the
Government and corresponding officials under this Constitution" of course,
meaning the Commonwealth of the Philippines before, and the Republic of the
Philippines after, independence (Article XVIII). Under both governments
sovereignty resided and resides in the people (Article II, section 1). Said
sovereignty was never transferred from that people they are the same
people who preserve it to this day. There has never been any change in this
respect.
If one committed treason against the people of the Philippines before
July 4, 1946, he continues to be criminally liable for the crime to the same
people now. And if, following the literal wording of the Revised Penal Code, as
continued by the Constitution, that accused owed allegiance upon the
commission of the crime to the "Government of the Philippines," in the textual
words of the Constitution (Articles XVI, section 2, and XVIII) that was the
same government which after independence became known as the "Republic
of the Philippines." The most that can be said is that the sovereignty of the
people became complete and absolute after independence that they
became, politically, fully of age, to use a metaphor. But if the responsibility for
a crime against a minor is not extinguished by the mere fact of his becoming
of age, why should the responsibility for the crime of treason committed
against the Filipino people when they were not fully politically independent be
extinguished after they acquire this status? The offended party continues to
be the same only his status has changed.
PARAS, J ., dissenting:
During the long period of Japanese occupation, all the political laws of
the Philippines were suspended. This is in full harmony with the generally
accepted principles of international law adopted by our Constitution (Article II,
section 3) as a part of the law of the Nation. Accordingly, we have on more
than one occasion already stated that "laws of a political nature or affecting
political relations, . . . are considered as suspended or in abeyance during the
military occupation" (Co Kim Cham vs. Valdez Tan Keh and Dizon, 75 Phil.,
113, 124), and that the rule "that laws of political nature or affecting political
relations are considered suspended or in abeyance during the military
occupation, is intended for the governing of the civil inhabitants of the
occupied territory." (Ruffy vs. Chief of Staff, Philippine Army, 75, Phil.,
876,881.)
The principle is recognized by the United States of America, which
admits that the occupant will naturally suspend all laws of a political nature
and all laws which affect the welfare and safety of his command, such action
to be made known to the inhabitants. (United States Rules of Land Warfare,
1940, Article 287.) As allegiance to the United States is an essential element
in the crime of treason under article 114 of the Revised Penal Code, and in
view of its position in our political structure prior to the independence of the
Philippines, the rule as interpreted and practiced in the United States
necessarily has a binding force and effect in the Philippines, to the exclusion
of any other construction followed elsewhere, such as may be inferred, rightly
or wrongly, from the isolated cases 1 brought to our attention, which,
moreover, have entirely different factual bases.
Corresponding notice was given by the Japanese occupying army, first,
in the proclamation of its Commander in chief of January 2, 1942, to the effect
that as a "result of the Japanese Military operations, the sovereignty of the
United States of America over the Philippines has completely disappeared
and the Army hereby proclaims the Military Administration under martial law
over the districts occupied by the Army;" secondly, in Order No. 3 of the said
Commander in Chief of February 20, 1942, providing that "activities of the
administrative organs and judicial courts in the Philippines shall be based
upon the existing statutes, orders, ordinances and customs until further orders
provided that they are not inconsistent with the present circumstances under
the Japanese Military Administration;" and, thirdly, in the explanations to
Order No. 3 reminding that "all laws and regulations of the Philippines have
been suspended since Japanese occupation," and excepting the application
of "laws and regulations which are not proper to act under the present
situation the Japanese Military Administration," especially those "provided
with some political purposes."
The suspension of political laws during enemy occupation is logical,
wise and humane. The latter phase outweighs all other aspects of the
principle aimed more or less at promoting the necessarily selfish motives and
purposes of a military occupant. It is tuns consoling to note that the powers
instrumental in the crystallization of the Hague Conventions of 1907 did not
forget to declare that they were "animated by the desire to serve . . . the
interests of humanity and the over progressive needs of civilization," and that
"in cases not included in the Regulations adopted by them, the inhabitants
and the belligerents remain under the protection and the rule of the principles
of international law, as they result from the usage's established among
civilized peoples, from the laws of humanity, and the dictates of the public
conscience." These saving statements come to the aid of the inhabitants in
the occupied territory in a situation wherein, even before the belligerent
occupant "takes a further step and by appropriate affirmative action
undertakes to acquire the right of sovereignty for himself, . . . the occupant is
likely to regard himself as clothed with freedom to endeavor to impregnate the
people who inhabit the area concerned with his own political ideology, and to
make that endeavor successful by various forms of pressure exerted upon
enemy officials who are permitted to retain the exercise of normal
governmental functions." (Hyde, International Law, Vol. III, Second Revised
Edition, 1945, p. 1879.)

The inhabitants of the occupied territory should necessarily be bound to
the sole authority of the invading power, whose interests and requirements
are naturally in conflict with those of the displaced government, if it is
legitimate for the military occupant to demand and enforce from the
inhabitants such obedience as may be necessary for the security of his
forces, for the maintenance of law and order, and for the proper administration
of the country (United States Rules of Land Warfare, 1940, article 297), and to
demand all kinds of services "of such a nature as not to involve the population
in the obligation of taking part in military operations against their own country"
(Hague Regulations, article 52); and if, as we have in effect said, by the
surrender the inhabitants pass under a temporary allegiance to the
government of the occupant and are bound by such laws, and such only, as it
chooses to recognize and impose, and the belligerent occupant 'is totally
independent of the constitution and the laws of the territory, since occupation
is an aim of warfare, and the maintenance and safety of his forces, and the
purpose of war, stand in the foreground of his interest and must be promoted
under all circumstances or conditions." (Peralta vs. Director of Prisons, 75
Phil., 285, 29a), citing United States vs. Rice, 4 Wheaton, 246, and quoting
Oppenheim, International Law, Vol. II, Sixth Edition, Revised, 1944, p. 432.)
He would be a bigot who cannot or would refuse to see the cruel result
if the people in an occupied territory were required to obey two antagonistic
and opposite powers. To emphasize our point, we would adopt the argument,
in a reverse order, of Mr. Justice Hilado in Peralta vs. Director of Prisons (75
Phil., 285, 358), contained in the following passage:
"To have bound those of our people who constituted the great
majority who never submitted to the Japanese oppressors, by the laws,
regulations, processes and other acts of those two puppet governments,
would not only have been utterly unjust and downright illegal, but would
have placed them in the absurd and impossible condition of being
simultaneously submitted to two mutually hostile governments, with their
respective constitutional and legislative enactments and institutions
on the one hand bound to continue owing allegiance to the United States
and the Commonwealth Government, and, on the other, to owe
allegiance, if only temporary, to Japan."
The only sensible purpose of the treason law which is of political
complexion and taken out of the territorial law and penalized as a new offense
committed against the belligerent occupant, incident to a state of war and
necessary for the control of the occupant (Alcantara vs. Director of Prisons,
75 Phil., 494), must be the preservation of the nation, certainly not its
destruction or extermination. And yet the latter is unwittingly wished by those
who are fond of the theory that what is suspended is merely the exercise of
sovereignty by the de jure government or the latter's authority to impose penal
sanctions or that, otherwise stated, the suspension refers only to the military
occupant. If this were to be the only effect, the rule would be a meaningless
and superfluous optical illusion, since it is obvious that the fleeing or displaced
government cannot, even if it should want, physically assert its authority in a
territory actually beyond its reach, and that the occupant, on the other hand,
will not take the absurd step of prosecuting and punishing the inhabitants for
adhering to and aiding it. If we were to believe the opponents of the rule in
question, we have to accept the absurd proposition that the guerrillas can all
be prosecuted with illegal possession of firearms. It should be borne in mind
that "the possession by the belligerent occupant of the right to control,
maintain or modify the laws that are to obtain within the occupied area is an
exclusive one. The territorial sovereign driven therefrom, can not compete
with it on an even plane. Thus, if the latter attempts interference, its action is a
mere manifestation of belligerent effort to weaken the enemy. It has no
bearing upon the legal quality of what the occupant exacts, while it retains
control. Thus if the absent territorial sovereign, through some quasi-legislative
decree, forbids its nationals to comply with what the occupant has ordained
obedience to such command within the occupied territory would not safeguard
the individual from prosecution by the occupant." (Hyde, International Law,
Vol. III, Second Revised Edition, 1945, p. 1886.)
As long as we have not outlawed the right of the belligerent occupant to
prosecute and punish the inhabitants for "war treason" or "war crimes," as an
incident of the state of war and necessity for the control of the occupied
territory and the protection of the army of the occupant, against which
prosecution and punishment such inhabitants cannot obviously be protected
by their native sovereign, it is hard to understand how we can justly rule that
they may at the same time be prosecuted and punished for an act penalized
by the Revised Penal Code, but already taken out of the territorial law and
penalized as a new offense committed against the belligerent occupant.
In Peralta is. Director of Prisons. 75 Phil., 286, 296), we held that "the
Constitution of the Commonwealth Government was suspended during the
occupation of the Philippines by the Japanese forces or the belligerent
occupant at regular war with the United States," and the meaning of the term
"suspended" is very plainly expressed in the following passage (page 298):
"No objection can be set up to the legality of its provisions in the
light of the precepts of our Commonwealth Constitution relating to the
rights of accused under that Constitution, because the latter was not in
force during the period of the Japanese military occupation, as we have
already stated. Nor may said Constitution be applied upon its revival at
the time of the re-occupation of the Philippines by virtue of the principle
of postliminium, because 'a constitution should operate prospectively
only, unless the words employed show a clear intention that it should
have a retrospective effect,' (Cooley's Constitutional Limitations, seventh
edition, page 97, and a case quoted and cited in the foot-note),
especially as regards laws of procedure applied to cases already
terminated completely."
In much the same way, we should hold that no treason could have been
committed during the Japanese military occupation against the United States
or the Commonwealth Government, because article 114 of the Revised Penal
Code was not then in force. Nor may this penal provision be applied upon its
revival at the time of the reoccupation of the Philippines by virtue of the
principle of postliminium, because of the constitutional inhibition against
any ex post facto law and because, under article 22 of the Revised Penal
Code, criminal laws shall have a retroactive effect only in so far as they favor
the accused. Why did we refuse to enforce the Constitution, more essential to
sovereignty than article 114 of the Revised Penal Code ni the aforesaid case
of Peralta vs. Director of Prisons if , as alleged by the majority, the suspension
was good only as to the military occupant?
The decision in United States vs. Rice (4 Wheaton, 246), conclusively
supports our position. As analyzed and described in United States vs. Reiter
(27 Fed. Cas., 773), that case "was decided by the Supreme Court of the
United States the court of highest human authority on that subject and
as the decision was against the United States, and in favor of the authority of
Great Britain, its enemy in the war, and was made shortly after the occurrence
the war out of which it grew; and while no department of this Government was
inclined to magnify the rights of Great Britain or disparage those of its own
government, there can be no suspicion of bias in the mind of the court in favor
of the conclusion at which it arrived, and no doubt that the law seemed to the
court to warrant and demand such a decision. That case grew out of the war
of 1812, between the United States and Great Britain. It appeared that in
September, 1814, the British forces had taken the port of Castine, in the State
of Maine, and held it in military occupation; and that while it was so held,
foreign goods, by the laws of the United States subject to duty, had been
introduced into that port without paying duties to the United States. At the
close of the war the place was by treaty restored to the United States, and
after that was done the Government of the United States sought to recover
from the persons so introducing the goods there while in possession of the
British, the duties to which by the laws of the United States, they would have
been liable. The claim of the United States was that its laws were properly in
force there, although the place was at the time held by the British forces in
hostility to the United States, and the laws, therefore, could not at the time be
enforced there; and that a court of the United States (the power of that
government there having since been restored) was bound so to decide. But
this illusion of the prosecuting officer there was dispelled by the court in the
most summary manner. Mr. Justice Story, that great luminary of the American
bench, being the organ of the court in delivering its opinion, said: 'The single
question is whether goods imported into Castine during its occupation by the
enemy are liable to the duties imposed by the revenue laws upon goods
imported into the United States. . . . We are all of opinion that the claim for
duties cannot be sustained. . . .. The sovereignty of the United States over the
territory was, of course, suspended, and the laws of the United States could
no longer be rightfully enforced there, or be obligatory upon the inhabitants
who remained and submitted to the conquerors. By the surrender the
inhabitants passed under a temporary allegiance of the British Government,
and were bound by such laws, and such only, as it chose to recognize and
impose. From the nature of the case no other laws could be obligatory upon
them. . . . Castine was therefore, during this period, as far as respected our
revenue laws, to be deemed a foreign port, and goods imported into it by the
inhabitants were subjects to such duties only as the British Government chose
to require. Such goods were in no correct sense imported into the United
States.' The court then proceeded to say, that the case is the same as if the
port of Castine had been foreign territory, ceded by treaty to the United
States, and the goods had been imported there previous to its cession. In this
case they say there would be no pretense to say that American duties could
be demanded; and upon principles of public or municipal law, the cases are
not distinguishable. They add at the conclusion of the opinion: 'The authorities
cited at the bar would, if there were any doubt, be decisive of the question.
But we think it too clear to require any aid from authority.' Does this case
leave room for a doubt whether a country held as this was in armed
belligerent occupation, is to be governed by him who holds it, and by him
alone? Does it not so decide in terms as plain as can be stated? It is asserted
by the Supreme Court of the United States with entire unanimity, the great
and venerated Marshall presiding, and the erudite and accomplished Story
delivering the opinion of the court, that such is the law, and it is so adjudged in
this case. Nay, more: it is even adjudged that no other laws could be
obligatory; that such country, so held, is for the purpose of the application of
the law off its former government to be deemed foreign territory, and that
goods imported there (and by parity of reasoning other acts done there) are in
no correct sense done within the territory of its former sovereign, the United
States."

But it is alleged by the majority that the sovereignty spoken of in the
decision of the United States vs. Rice should be construed to refer to the
exercise of sovereignty, and that, if sovereignty itself was meant, the doctrine
has become obsolete after the adoption of the Hague Regulations in 1907. In
answer, we may state that sovereignty can have any important significance
only when it may be exercised; and, to our way of thinking, it is immaterial
whether the thing held in abeyance is the sovereignty itself or its exercise,
because the point cannot nullify, vary, or otherwise vitiate the plain meaning
of the doctrinal words "the laws of the United States could no longer be
rightfully enforced there, or be obligatory upon the inhabitant who remained
and submitted to the conquerors." We cannot accept the theory of the
majority, without in effect violating the rule of international law, hereinabove
adverted to, that the possession by the belligerent occupant of the right to
control, maintain or modify the laws that are to obtain within the occupied area
is an exclusive one, and that the territorial sovereign driven therefrom cannot
compete with it on an even plane. Neither may the doctrine in United
States vs. Rice be said to have become obsolete, without repudiating the
actual rule prescribed and followed by the United States, allowing the military
occupant to suspend all laws of a political nature and even require public
officials and the inhabitants to take an oath of fidelity (United States Rules of
Land Warfare, 1940, article 309). In fact, it is a recognized doctrine of
American Constitutional Law that mere conquest or military occupation of a
territory of another State does not operate to annex such territory to the
occupying State, but that the inhabitants of the occupied district, no longer
receiving the protection of their native State, for the time being owe no
allegiance to it, and, being under the control and protection of the victorious
power, owe to that power fealty and obedience. ( Willoughby, The
Fundamental Concepts of Public Law [1931], p. 364.)
The majority have resorted to distinctions, more apparent than real, if
not immaterial, in trying to argue that the law of treason was obligatory on the
Filipinos during the Japanese occupation. Thus it is insisted that a citizen or
subject owes not a qualified and temporary, but an absolute and permanent
allegiance, and that "temporary allegiance" to the military occupant may be
likened to the temporary allegiance which a foreigner owes to the government
or sovereign of the territory wherein he resides in return for the protection he
receives therefrom. The comparison is most unfortunate. Said foreigner is in
the territory of a power not hostile to or in actual war with his own government;
he is in the territory of a power which has not suspended, under the rules of
international law, the laws of political nature of his own government; and the
protections received by him from that friendly or neutral power is real, not the
kind of protection which the inhabitants of an occupied territory can expect
from a belligerent army. "It is but reasonable that States, when they concede
to other States the right to exercise jurisdiction over such of their own
nationals as are within the territorial limits of such other States, should insist
that those States should provide system of la-v and of courts, and in actual
practice, so administer them, as to furnish substantial legal justice to alien
residents. This does not mean that a State must or should extend to aliens
within its borders all the civil, or much less, all the political rights or privileges
which it grants to its own citizens; but it does mean that aliens must or should
be given adequate opportunity to have such legal rights as are granted to
them by the local law impartially and judicially determined, and, when thus
determined, protected." (Willoughby, The Fundamental Concepts of Public
Law [1931], p. 360.)
When it is therefore said that a citizen of a sovereign may be
prosecuted for and convicted of treason committed in foreign country or, in the
language of article 114 of the Revised Penal Code, "elsewhere," a territory
other than one under belligerent occupation must have been contemplated.
This would make sense, because treason is a crime "the direct or indirect
purpose of which is the delivery, in whole or in part, of the country to a foreign
power, or to pave the way for the enemy to obtain dominion over the national
territory" (Albert, The Revised Penal Code, citing 3 Groizard, 14); and, very
evidently, a territory already under occupation can no longer be "delivered."
The majority likewise argue that the theory of suspended sovereignty or
allegiance will enable the military occupant to legally recruit the inhabitants to
fight against their own government, without said inhabitants being liable for
treason. This argument is not correct, because the suspension does not
exempt the occupant from complying with the Hague Regulation (article 52)
that allows it to demand all kinds of services provided that they do not involve
the population "in the obligation of taking part in military operations against
their own country." Neither does the suspension prevent the inhabitants from
assuming a passive attitude, much less from dying and becoming heroes if
compelled by the occupant to fight against their own country. Any imperfection
in the present state of international law should be corrected by such world
agency as the United Nations organization.
It is of common knowledge that even with the alleged cooperation
imputed to the collaborators, an alarming number of Filipinos were killed or
otherwise tortured by the ruthless, or we may say savage, Japanese Army.
Which leads to the conclusion that if the Filipinos did not obey the Japanese
commands and feign cooperation, there would not be any Filipino nation that
could have been liberated. Assuming that the entire population could go to
and live in the mountains, or otherwise fight as guerrillas after the formal
surrender of our and the American regular fighting forces, they would have
faced certain annihilation by the Japanese, considering the latter's military
strength at the time and the long period during which they were left militarily
unmolested by America. In this connection, we hate to make reference to the
atomic bomb as a possible means of destruction.
If a substantial number of guerrillas were able to survive and ultimately
help in the liberation of the Philippines, it was because the feigned
cooperation of their countrymen enabled them to get food and other aid
necessary in the resistance movement. If they were able to survive, it was
because they could camouflage themselves in the midst of the civilian
population in cities and towns. It is easy to argue now that the people could
have merely followed their ordinary pursuits of life or otherwise be indifferent
to the occupant. The fundamental defect of this line of thought is that the
Japanese are assumed to be so stupid and dumb as not to notice any such
attitude. During belligerent occupation, "the outstanding fact to be reckoned
with is the sharp opposition between the inhabitants of the occupied areas
and the hostile military force exercising control over them. At heart they
remain at war with each other. Fear for their own safety may not serve to
deter the inhabitants from taking advantage of opportunities to interfere with
the safety and success of the occupant, and in so doing they may arouse its
passions and cause it to take vengeance in cruel fashion. Again, even when it
is untainted by such conduct, the occupant as a means of attaining ultimate
success in its major conflict may, under plea of military necessity, and
regardless of conventional or customary prohibitions, proceed to utilize the
inhabitants within its grip as a convenient means of military achievement."
(Hyde, International Law, Vol. III, Second Revised Edition [1945], p. 1912.) It
should be stressed that the Japanese occupation was not a matter of a few
months; it extended over a little more than three years. Said occupation was a
fact, in spite of the "presence of guerrilla bands in barrios and mountains, and
even in towns of the Philippines whenever these towns were left by Japanese
garrisons or by the detachments of troops sent on patrol to those places." (Co
Kim Clam vs. Valdez Tan Keh and Dizon) 75 Phil., 371, 373. ) The law of
nations accepts belligerent occupation as a fact to be reckoned with,
regardless of the merits of the occupant's cause. (Hyde, International Law,
Second Revised Edition [1945], Vol. III, p. 1879.)
Those who contend or fear that the doctrine herein adhered to will lead
to an over-production of traitors, have a wrong and low conception of the
psychology and patriotism of their countrymen. Patriots are such after their
birth in the first place, and no amount of laws or judicial decisions can make or
unmake them. On the other hand, the Filipinos are not so base as to be
insensitive to the thought that the real traitor is cursed everywhere and in all
ages. Our patriots who fought and died during the last war, and the brave
guerrillas who have survived, were undoubtedly motivated by their inborn love
of country, and not by such a thing as the treason law. The Filipino people, as
a whole, passively opposed the Japanese regime, not out of fear of the
treason statute but because they preferred and will prefer the democratic and
civilized way of life and American altruism to Japanese barbaric and
totalitarian designs. Of course, there are those who might at heart have been
pro-Japanese; but they met and will unavoidably meet the necessary
consequences. The regular soldiers faced the risks of warfare; the spies and
informers subjected themselves to the perils of military operations, likely
received summary liquidation or punishments from the guerrillas and the
parties injured by their acts, and may be prosecuted as war spies by the
military authorities of the returning sovereign; those who committed other
common crimes, directly or through the Japanese army, may be prosecuted
under the municipal law, and under this group, even the spies and informers,
Makapili or otherwise, are included, for they can be made answerable for any
act offensive to person or property; the buy-and-sell opportunists have the war
profits tax to reckon with. We cannot close our eyes to the conspicuous fact
that, in the majority of cases, those responsible for the death of, or injury to,
any Filipino or American at the hands of the Japanese, were prompted more
by personal motives than by a desire to levy war against the United States or
to adhere to the occupant. The alleged spies and informers found in the
Japanese occupation the royal road to vengeance against personal or political
enemies. The recent amnesty granted to the guerrillas for acts, otherwise
criminal, committed in the furtherance of their resistance movement has in a
way legalized the penal sanctions imposed by them upon the real traitors.

It is only from a realistic, practical and common-sense point of view,
and by remembering that the obedience and cooperation of the Filipinos were
effected while the Japanese were in complete control and occupation of the
Philippines, when the r mere physical presence implied force and pressure
and not after the American forces of liberation had restored the Philippine
Government that we will come to realize that, apart from any rule of
international law, it was necessary to release the Filipinos temporarily from
the old political tie in the sense indicated herein. Otherwise, one is prone to
dismiss the reason for such cooperation and obedience. If there were those
who did not in any wise cooperate or obey, they can be counted by the
fingers, and let their names adorn the pages of Philippine history. Essentially,
however, everybody who took advantage, to any extent and degree, of the
peace and order prevailing during the occupation, for the safety and survival
of himself and his family, gave aid and comfort to the enemy.
Our great liberator himself, General Douglas MacArthur, had
considered the laws of the Philippines ineffective during the occupation, and
restored to their full vigor and force only after the liberation. Thus, in his
proclamation of October 23, 1944, he ordained that "the laws now existing on
the statute bolls of the Commonwealth of the Philippines . . . are in full force
and effect and legally binding upon the people in areas of the Philippines free
of enemy occupation and control," and that "all laws . . . of any other
government in the Philippines than that of the said Commonwealth are null
and void and without legal effect in areas of the Philippines free of enemy
occupation and control." Repeating what we have said in Co Kim Cham vs.
Valdez Tan Keh and Dizon (76 Phil., 113, 133), "it is to be presumed that
General Douglas MacArthur, who was acting as an agent or a representative
of the Government and the President of the United States, constitutional
Commander-in-Chief of the United States Army, did not intend to act against
the principles of the law of nations asserted by the Supreme Court of the
United States from the early period of its existence, applied by the President
of the United States, and later embodied in the Hague Conventions of 1907."
The prohibition in the Hague Conventions (Article 45) against "any
pressure on the population to take oath to the hostile power," was inserted for
the moral protection and benefit of the inhabitants, and does not necessarily
carry the implication that the latter continue to be bound to the political laws of
the displaced government. The United States, a signatory to the Hague
Conventions, has made the point clear, by admitting that the military occupant
can suspend all laws of a political nature and even require public officials and
the inhabitants to take an oath of fidelity (United States Rules of Land
Warfare, 1940, article 309), and as already stated, it is a doctrine of American
Constitutional Law that the inhabitants, no longer receiving the protection of
their native state, for the time being owe no allegiance to it, and, being under
the control and protection of the victorious power, owe to that power fealty
and obedience. Indeed, what is prohibited is the application of force by the
occupant, from which it is fair to deduce that the Conventions do not
altogether outlaw voluntary submission by the population. The only strong
reason for this is undoubtedly the desire of this authors of the Conventions to
give as much freedom and allowance to the inhabitants as are necessary for
their survival. This is wise and humane, because the people should be in a
better position to know what will save them during the military occupation than
any exile government.
"Before he was appointed prosecutor, Justice Jackson made a speech
in which he warned against the use of the judicial process for non judicial
ends, and attached cynics who 'see no reason why courts, just like other
agencies, should not be policy weapons. If we want to shoot Germans as a
matter of policy, let it be done as such, said he but don't hide the deed behind
a court. If you are determined to execute a man in any case there is no
occasion for a trial; the world yields no respect for courts that are merely
organized to convict.' Mussolini may have got his just desserts, but nobody
supposes he got a fair trial. . . . Let us bear that in mind as we go about
punishing criminals. There are enough laws on the books to convict guilty
Nazis without risking the prestige of our legal system. It is far, far better that
some guilty men escape than that the idea of law be endangered. In the long
run the idea of law is our best defense against Nazism in all its forms." These
passages were taken from the editorial appearing in the Life, May 28, 1945,
page 34, and convey ideas worthy of some reflection.
If the Filipinos in fact committed any errors in feigning cooperation and
obedience during the Japanese military occupation, they were at most
borrowing the famous and significant words of President Roxas errors of
the mind and not of the heart. We advisedly said "feigning" not as an
admission of the fallacy of the theory of suspended allegiance or sovereignty,
but as an affirmation that the Filipinos, contrary to their outward attitude, had
always remained loyal by feeling and conscience to their country.
Assuming that article 114 of the Revised Penal Code was in force
during the Japanese military occupation, the present Republic of the
Philippines has no right to prosecute reason committed against the former
sovereignty existing during the Commonwealth Government which was none
other than the sovereignty of the United States. This court has already held
that, upon a change of sovereignty, the provisions of the Penal Code having
to do with such subjects as treason, rebellion and sedition are no longer in
force (People vs. Perfecto, 43 Phil., 887). It is true that, as contended by the
majority, section 1 of Article II of the Constitution of the Philippines provides
that "sovereignty resides in the people," but this did not make the
Commonwealth Government or the Filipino people sovereign, because said
declaration of principle, prior to the independence of the Philippines, was
subservient to and controlled by the Ordinance appended to the Constitution
under which, in addition to its manly provisions essentially destructive of the
concept of sovereignty, it is expressly made clear that the sovereignty of the
United States over the Philippines had not then been withdrawn. The framers
of the Constitution had to mail said declaration of principle because the
document was ultimately intended for the independent Philippines. Otherwise,
the Preamble should not have announced that one of the purposes of the
Constitution is to secure to the Filipino people and their posterity the
"blessings of independence." No one, we suppose, will dare allege that the
Philippines was an independent county under the Commonwealth
Government.
The Commonwealth Government might have been more autonomous
than that existing under the Jones Law, but its non-sovereign status
nevertheless remained unaltered; and what was enjoyed was the exercise of
sovereignty delegated by the United States whose sovereignty over the
Philippines continued to be complete.
"The exercise of Sovereignty May be Delegated. It has already
been seen that the exercise of sovereignty is conceived of as delegated
by a State to the various organs which, collectively, constitute the
Government. For practical political reasons which can be casually
appreciated, it is desirable that the public policies of a State should be
formulated and executed by governmental agencies of its own creation
and which are not subject to the control of other States. There is,
however, nothing in a nature of sovereignty or of State life which
prevents one State from entrusting the exercise of certain powers to the
governmental agencies of another State. Theoretically, indeed, a
sovereign State may go to any extent in the delegation of the exercise of
its power to the governmental agencies of other States, those
governmental agencies thus becoming quad hoc parts of the
governmental machinery of the State whose sovereignty is exercised. At
the same time these agencies do not cease to be instrumentalities for
the expression of the will of the State by which they were originally
created.
"By this delegation the agent State is authorized to express the
will of the delegating State, and the legal hypothesis is that this State
possesses the legal competence again to draw to itself the exercise,
through organs of its own creation, of the powers it has granted. Thus,
States may concede to colonies almost complete autonomy of
government and reserve to themselves a right of control of so slight and
so negative a character as to make its exercise a rare and improbable
occurrence; yet, so long as such right of control is recognized to exist,
and the autonomy of the colonies is conceded to be founded upon a
grant and the continuing consent of the mother countries the sovereignty
of those mother countries over them is complete and they are to be
considered as possessing only administrative autonomy and not political
independence. Again, as will be more fully discussed in a later chapter,
in the so-called Confederate or Composite State, the cooperating States
may yield to the central Government the exercise of almost all of their
powers of Government and yet retain their several sovereignties. Or, on
the other hand, a State may, without parting with its sovereignty of
lessening its territorial application, yield to the governing organs of
particular areas such an amplitude of powers as to create of them
bodies-politic endowed with almost all of the characteristics of
independent States. In all States, indeed, when of any considerable size,
efficiency of administration demands that certain autonomous powers of
local self-government be granted to particular districts." (Willoughby, The
Fundamental Concepts of Public Law [1931], pp. 74, 15.)

The majority have drawn an analogy between the Commonwealth
Government and the States of the American Union which, it is alleged,
preserve their own sovereignty although limited by the United States. This is
not true for it has been authoritatively stated that the Constituent States have
no sovereignty of their own, that such autonomous powers as they now
possess are had and exercised by the express will or by the constitutional
forbearance of the national sovereignty, and that the sovereignty of the United
States and the non-sovereign status of the individual States is no longer
contested.
"It is therefore plain that the constituent States have no
sovereignty of their own, and that such autonomous powers as they now
possess are had and exercised by the express will or by the
constitutional forbearance of the national sovereignty. The Supreme
Court of the United States has held that, even when selecting members
for the national legislature, or electing the President, or ratifying
proposed amendments to the federal Constitution, the States act, ad
hoc, as agents of the National Government." (Willoughby, The
Fundamental Concepts of Public Law [1931], p. 250.)
"This is the situation at the present time. The sovereignty of the
United States and the non-sovereign status of the individual States is no
longer contested." (Willoughby, The Fundamental Concepts of Public
Law [1931], pp. 251, 252.)
Article XVIII of the Constitution provides that "The government
established by this Constitution shall be known as the Commonwealth of the
Philippines. Upon the final and complete withdrawal of the sovereignty of the
United States and the proclamation of Philippine independence, the
Commonwealth of the Philippines shall thenceforth be known as the Republic
of the Philippines." From this, the deduction is made that the Government
under the Republic of the Philippines and under the Commonwealth is the
same. We cannot agree. While the Commonwealth Government possessed
administrative autonomy and exercised the sovereignty delegated by the
United States and did not cease to be an instrumentality of the latter
(Willoughby, The Fundamental Concepts of Public Law [1931], pp. 74, 75),
the Republic of the Philippines is an independent State not receiving its power
or sovereignty from the United States. Treason committed against the United
States or against its instrumentality, the Commonwealth Government, which
exercised, but did not possess, sovereignty (id., p. 49), is therefore not
treason against the sovereign and independent Republic of the Philippines.
Article XVIII was inserted in order, merely, to make the Constitution applicable
to the Republic.
Reliance is also placed on section 2 of the Constitution which provides
that all laws of the Philippine Islands shall remain operative, unless
inconsistent therewith, until amended, altered, modified or repealed by the
Congress of the Philippines, and on section 3 which is to the effect that all
cases pending in courts shall be heard, tried, and determined under the laws
then in force, thereby insinuating that these constitutional provisions authorize
the Republic of the Philippines to enforce article 114 of the Revised Penal
Code. The error is obvious. The latter article can remain operative under the
present regime if it is not inconsistent with the Constitution. The fact remains,
however, that said penal provision is fundamentally incompatible with the
Constitution, in that those liable for treason thereunder should owe allegiance
to the United States or the Government of the Philippines, the latter being, as
we have already pointed out, a mere instrumentality of the former, whereas
under the Constitution of the present Republic, the citizens of the Philippines
do not and are not required to owe allegiance to the United States. To
contend that article 114 must be deemed to have been modified in the sense
that allegiance to the United States is deleted, and, as thus modified, should
be applied to prior acts, would be to sanction the enactment and application of
an ex post facto law.
In reply to the contention of the respondent that the Supreme Court of
the United States has held in the case of Bradford vs. Chase National Bank
(24 Fed. Supp., 38), that the Philippines had a sovereign status, though with
restrictions, it is sufficient to state that said case must be taken in the light of a
subsequent decision of the same court in Cincinnati Soap Co. vs. United
States (301 U. S., 308), rendered in May, 1937, wherein it was affirmed that
the sovereignty of the United States over the Philippines had not been
withdrawn, with the result that the earlier case can only be interpreted to refer
to the exercise of sovereignty by the Philippines as delegated by the mother
country, the United States.
No conclusiveness may be conceded to the statement of President
Roosevelt on August 12, 1943, that "the United States in practice regards the
Philippines as having now the status as a government of other independent
nations in act all the attributes of complete and respected nationhood,"
since said statement was not meant as having accelerated the date, much
less as a formal proclamation of the Philippine Independence as
contemplated in the Tydings McDuffie Law, it appearing that (1) no less also
than the President of the United States had to issue the proclamation of July
4, 1946, withdrawing the sovereignty of the United States and recognizing
Philippine Independence; (2) it was General MacArthur, and not President
Osmena who was with him, that proclaimed on October 23, 1944, the
restoration of the Commonwealth Government; (3) the Philippines was not
given official participation in the signing of the Japanese surrender; (4) the
United States Congress, and not the Commonwealth Government, extended
the tenure of office of the President and Vice President of the Philippines.
The suggestion that as treason may be committed against the Federal
as well as against the State Government, in the same way treason may have
been committed against the sovereignty of the United States as well as
against the sovereignty of the Philippine Commonwealth, is immaterial
because, as we have already explained, treason against either is not and
cannot be treason against the new and different sovereignty of the Republic of
the Philippines.
||| (Laurel v. Misa, G.R. No. L-409, January 30, 1947)

EN BANC
[G.R. No. L-49. November 12, 1945.]
WILLIAM F. PERALTA, petitioner, vs.
THE DIRECTOR OF PRISONS, respondent.
William F. Peralta, in his own behalf.
Solicitor General Taada, for respondent.
City Fiscal Mabanag, as amicus curiae.
SYLLABUS
1. CONSTITUTION OF THE PHILIPPINE COMMONWEALTH AND
CONSTITUTION OF THE SO-CALLED REPUBLIC OF THE PHILIPPINES,
NOT APPLICABLE TO CASE AT BAR. As the so-called Republic of the
Philippines was a de facto government of the second kind (of paramount
force), the questions involved in the present case cannot be decided in the
light of the Constitution of the Commonwealth Government, because the
belligerent occupant was totally independent of the constitution of the
occupied territory in carrying out the administration over said territory
(Oppenheim's International Law, Vol. II, Sixth Edition, Revised, 1944, p. 342);
and the doctrine laid down by the Supreme Court of the United States in the
cases involving the validity of judicial and legislative acts of the Confederate
States, considered as de facto governments of the third kind, does not apply
to the acts of the so-called Republic of the Philippines which is a de
facto government of paramount force. The Constitution of the so-called
Republic of the Philippines can neither be applied, since the validity of an
act of a belligerent occupant cannot be tested in the light of another act of the
same occupant, whose criminal jurisdiction is drawn entirely from the law
martial as defined in the usages of nations.
2. VALIDITY OF THE CREATION OF THE COURT OF SPECIAL AND
EXCLUSIVE CRIMINAL JURISDICTION The so called Republic of the
Philippines, being a governmental instrumentality of the belligerent occupant,
had the power or was competent to create the Court of Special and Exclusive
Criminal Jurisdiction. No question may arise as to whether or not a court
is of a political complexion, for it is a mere governmental agency charged with
the duty of applying the law to cases falling within its jurisdiction. Its
judgments and sentences may be of political complexion or not depending
upon the nature or character of the law so applied. There is no room for
doubt, therefore, as to the validity of the creation of the court in question.
3. VALIDITY OF THE SUMMARY PROCEDURE ADOPTED FOR SAID
COURT. With respect to the summary procedure adopted by Ordinance No.
7, and followed in the trial of the case which resulted in the conviction of the
herein petitioner, there is also no question as to the power or
competence of the belligerent occupant to promulgate the law providing for
such procedure. The only restrictions or limitations imposed upon the
power of a belligerent occupant to alter the laws or promulgate new ones,
especially the criminal law as well as the laws regarding procedure, so far as
it is necessary for military purposes, that is, for his control of the territory and
the safety and protection of his army, are those imposed by the Hague
Regulations, the usages established by civilized nations, the laws of humanity
and the requirements of public conscience. It is obvious that the summary
procedure under consideration does not violate these precepts. It cannot be
considered as violating the laws of humanity and public conscience, for it is
less objectionable, even from the point of view of those who are used to the
accusatory system of criminal procedure, than the procedural laws based on
the semi-inquisitorial or mixed system prevailing in France and other countries
in continental Europe.
4. VALIDITY OF ACT NO. 65 OF THE NATIONAL ASSEMBLY OF THE
SO-CALLED REPUBLIC OF THE PHILIPPINES. It was within the power
and competence of the belligerent occupant to promulgate, through the
National Assembly of the so-called Republic of the Philippines, Act No.
65 of the said Assembly, which penalizes the crimesof robbery and other
offenses as new crimes and offenses demanded by military necessity,
incident to a state of war, and necessary for the control of the country by the
belligerent occupant, the protection and safety of the army of occupation, its
support and efficiency, and the success of its operations. They are not the
same ordinary offenses penalized by the Revised Penal Code. The criminal
acts penalized by said Act No. 65 are those committed by persons charged or
connected with the supervision and control of the production, procurement
and distribution of foods and other necessaries; and the penalties imposed
upon the violators are different from and much heavier than those provided by
the Revised Penal Code for the same ordinary crimes. The acts penalized by
said Act were taken out of the territorial law or Revised Penal Code, and
referred to what is called martial law by international jurists, defined above by
Hyde, in order, not only to prevent food and other necessaries from reaching
the "guerrillas" which were harassing the belligerent occupant from every
nook and corner of the country, but also to preserve the food supply and other
necessaries in order that in case of necessity, the Imperial Japanese forces
could easily requisition them, as they did, and as they had the right to do in
accordance with the law of nations for their maintenance and subsistence (Art
LII, sec. III, Hague Conventions of 1907). Especially taking into consideration
the fact, of which this court may take judicial notice, that the Imperial
Japanese Army had depended mostly for their supply upon the
produce of this country.
5. POLITICAL COMPLEXION OF THE CRIMES PENALIZED BY SAID
ACT NO. 65 AND ORDINANCE NO. 7 OF THE PRESIDENT OF THE SO-
CALLED REPUBLIC OF THE PHILIPPINES. The crimes penalized by Act
No. 65 as well as the crimes against national security and the
law of nations, and the crimes against public order, penalized by Ordinance
No. 7 and placed under the jurisdiction of the Court of Special and Exclusive
Criminal Jurisdiction are all of a political complexion, because the acts
constituting those offenses were punished, as are all political offenses, for
public rather than private reasons, and were acts in aid or favor of the enemy
and directed against the welfare, safety and security of the belligerent
occupant.
6. VALIDITY OF SENTENCES DURING OCCUPATION FOR
CRIMES OF POLITICAL COMPLEXION, AFTER REOCCUPATION OR
LIBERATION. The punitive sentence under consideration, although good
and valid during the military occupation of the Philippines by the Japanese
forces, ceased to be good and valid ipso facto upon the reoccupation of these
Islands and the restoration therein of the Commonwealth Government. (Hall's
International Law, seventh edition, p. 518; Westlake, International Law, Part Ii,
War, pp. 97, 98; Wheaton's International Law, War, seventh edition, 1944, p.
245.)
Per PERFECTO, J., concurring:
7. ORDINANCE NO. 7 NULLIFIED BY OCTOBER PROCLAMATION.
Ordinance No. 7 issued by President Laurel, of the "Republic of the
Philippines" under the Japanese regime, was nullified by the proclamation
issued by General Douglas MacArthur on October 23, 1944.
8. THE OCTOBER PROCLAMATION. The October Proclamation was
issued by General MacArthur in keeping with the official statement issued by
the President of the United States of October 23, 1943, denying recognition or
sympathy to the collaborationist "Philippine Executive Commission" and the
Laurel "Philippine Republic."
9. FUNDAMENTAL PRINCIPLES IN CRIMINAL PROCEDURE.
Ordinance No. 7 is incompatible with the fundamental principles and essential
safeguards in criminal procedure, universally recognized in civilized modern
nations, and can only be justified by a retrogressive and reactionary mentality
developed under the social, cultural, and political atmosphere of the
era of darkness.
10. WARRANTS OF SEARCH AND SEIZURE. The
provisions of Ordinance no. 7 as to issuance of search warrants are
repugnant to the Filipino sense of right in the matter of warrants of search and
seizure, sense of right which has been clearly and definitely stereotyped in
Art. III, Sec. 1 (3), of the Constitution of the Philippines. Under the
Constitution of the Philippines, search warrants should be issued only by a
judge.
11. HABEAS CORPUS Section 7 of Ordinance No. 7, suspending the
privileges of the writ of habeas corpus, is violative of one of the fundamental
guarantees in the Constitution of the Philippines.
12. SELF-INCRIMINATION The criminal procedure authorized by
Ordinance No. 7, in relation with Executive Order No. 157, is violative of the
constitutional guarantee against self-incrimination.
13. REVOLTING PROCEDURE. The procedure provided under
Ordinance No. 7 is so revolting, so nauseating, and so opposed to human
nature, that it takes real courage to keep one's equanimity when analyzing it.
It is beyond comprehension how a man, endowed with reason, could devise
such an execrable system of judicial procedure, which is but a shameless
mockery of the administration of justice.
14. THE GUARANTEE AGAINST SELF-INCRIMINATION SHOULD BE
RETAINED JEALOUSY It is necessary to be careful to retain jealously the
constitutional guarantee against self-incrimination. It was acquired as a
result of protests against all inquisitorial and third degree procedure.
15. THIRD DEGREE PROCEDURES. We must not forget that even
during normal times, under the twentieth century lights, just before the last
global war started, in America and in the Philippines, it was heard not rarely
denunciations of third degree procedures employed by agents of the law. This
very Supreme Court, not only once, had to deal with cases where such tactics
were conclusively proved. Even today, among criminal cases we have under
consideration, there is evidence of confessions exacted through cruel and
brutal means.
16. EVERYBODY'S SECURITY JEOPARDIZED. Even with the
existence of the constitutional guarantee against self-incrimination, there are
officers of the law who cannot resist the temptation of using their power to
compel, through third degree methods, innocent of guilty persons to admit
involuntarily real or imaginary offenses. Let us allow changes tending to nullify
the protection against self- incrimination, and no man, however innocent be
may be, shall be secure in his person, in his liberty, in his honor, in his life.

17. APPEAL IS A FUNDAMENTAL RIGHTS OF ALL ACCUSED.
Under the provisions of the Constitution of the Philippines (Art. VIII, sec. 2),
the right of appeal has been recognized as one of the fundamental rights of all
accused in the Philippines.
18. ID., REASONS OF THE DRAFTERS OF THE CONSTITUTION.
The drafters of our Constitution, taught by the unerring lessons of human
experience, came to the conclusion that mistake is one of the most
irretrievable human weaknesses. To reduce to the minimum the
effects of such innate human weakness, they provided n our fundamental law
that appeal to the highest tribunal of the land may be enjoyed by any accused.
19. INSTRUMENTALITY IN THE SERVICE OF THE PEOPLE. The
Supreme Court is just one of the instrumentalities created by the Constitution
in the service of the people. It is one of the means considered necessary to
better serve the supreme interest of the people.
20. EQUAL PROTECTION OF THE LAWS ABRIDGED. The
summary procedure in criminal cases under Ordinance No. 7 abridged the
constitutional guarantee of equal protection of the laws.
21. PRESUMPTION OF INNOCENCE VIOLATED. The summary
procedure established by Ordinance No. 7 violates the constitutional principle
that all accused shall be presumed innocent until the contrary is proved
beyond all reasonable doubt.
22. THE HAGUE CONVENTION. The Hague Convention of 1899 is
flagrantly violated by the enactment of Ordinance No. 7.
23. INTERNATIONAL LAW. Under international law, under the most
elemental principles of law, the legitimate government, once restored to his
own territory, after expelling the invader, enjoys the absolute freedom of not
recognizing or by nullifying any and all acts of the invader.
24. DECISION RENDERED UNDER FOREIGN AUTHORITY
UNENFORCEABLE. The decision is by which petitioner was convicted and
is being held for life, having been rendered by a tribunal created, functioning,
and acting under the authority of a foreign state, the Emperor or the Imperial
Government of Japan, is unenforceable.
25. VESTIGES OF A PEOPLE SPIRITUALLY PERVERTED AND
DEBASED. The process and judgment under which petitioner has been
convicted is one of the hateful vestiges left in our country by the moral
savagery of a people spiritually perverted and debased. We must erase those
vestiges if we want to keep immune from all germsof decay the democratic
institutions which are the pride of our people and country.
26. PERFECTION OF ELEMENTAL HUMAN CONCEPTS. The
procedure here in question exhibits either inversion, retroversion, subversion,
or perversion of elemental human concepts. It ignores completely the high
purposes of a judicial procedure.
D E C I S I O N
FERIA, J p:
Petitioner-defendant, a member of the Metropolitan
Constabulary of Manila charged with the supervision and control of the
production, procurement and distribution of goods and other necessaries as
defined in section 1 of Act No. 9 of the National Assembly of the so-called
Republic of the Philippines, was prosecuted for the crime of robbery as
defined and penalized by section 2 (a) of Act No. 65 of the same Assembly.
He was found guilty and sentenced to life imprisonment, which he
commenced to serve on August 21, 1944, by the Court of Special and
Exclusive Criminal Jurisdiction, created in section 1 of Ordinance No. 7
promulgated by the Presidentof the so-called Republic of the Philippines,
pursuant to the authority conferred upon him by the Constitution and
laws of the said Republic. And the procedure followed in the trial was the
summary one established in Chapter II of Executive Commission, made
applicable to the trial for violations of said Act No. 65 by section 9 thereof and
section 5 of said Ordinance No. 7.
The petition for habeas corpus is based on the ground that the
Court of Special and Exclusive Criminal Jurisdiction created by Ordinance No.
7 "was a political instrumentality of the military forces of the Japanese Imperial
Army, the aims and political purposes of the Commonwealth of the
Philippines, as well as those of the United States of America, and therefore,
null and void ab initio," that the provisions of said Ordinance No. 7 are
violative of the fundamental laws of the Commonwealth of the Philippines and
"the petitioner has been deprived of his constitutional rights"; that the
petitioner herein is being punished by a law created to serve the political
purpose ofthe Japanese Imperial Army in the Philippines, and "that the
penalties provided for are much (more) severe than the penalties provided for
in the Revised Penal Code."
The Solicitor General, in his answer in behalf of the respondent, states
that, in his own opinion, for the reasons expressed in his brief in the
case of People of the Philippines, plaintiff- appellant, vs. Benedicto Jose y
Santos, defendant-appellee, G.R. No. L- 22 (p. 612, post), the acts and
proceedings taken and had before the said Courtof Special and Exclusive
Criminal Jurisdiction which resulted in the conviction and imprisonment of the
herein petitioner, should now be denied force and efficacy, and therefore the
petition for habeas corpus should be granted. The reasons advanced by the
Solicitor General in said brief and in his reply memorandum in support of his
contention are, that the Court of Special and Exclusive Criminal Jurisdiction
created, and the summary procedure prescribed therefor, by said Ordinance
No. 7 in connection with Executive Order No. 157 of the Chairman of the
Executive Commission, are tinged with political complexion; that the
procedure prescribed in Ordinance No. 7 does not afford a fair trial, violates
the Constitution of the Commonwealth, and impairs the constitutional
rights of accused persons under their legitimate Constitution. And he cites, in
support of this last proposition, the decisions of the Supreme Court of the
United States in the cases of Texas vs. White (7 Wall., 700, 743);
Horn vs. Lockhart (17 Wall., 570, 581); United States vs. Home Insurance Co.
(22 Wall., 99, 104); Sprott vs. United States (20 Wall., 459).
The City Fiscal of Manila appeared before this Court as amicus curi.
In his memorandum he submits that the petition for habeas corpus be denied
on the following grounds: That the Court of Special and Exclusive Criminal
Jurisdiction and the Acts, Ordinances and Executive Orders creating it are
not of a political complexion, for said Court was created, and the crimes and
offenses placed under its jurisdiction were penalized heavily, in response to
an urgent necessity, according to the preamble ofOrdinance No. 7; that the
right to appeal in a criminal case is not a constitutional right; and that the
summary procedure established in said Ordinance No. 7 is not violativeof the
provision of Article III, section 1 (18) of the Constitution of the Commonwealth,
to the effect that no person shall be compelled to be a witness against
himself, nor ofthe provision of section 1 (1) of the same Article that no person
shall be deprived of life, liberty, or property without due process of law.
The features of the summary procedure adopted by Ordinance No. 7,
assailed by the petitioner and the Solicitor General as impairing the
constitutional rights of an accused are; that the court may interrogate the
accused and witnesses before trial in order to clarify the points in dispute; that
the refusal of the accused to answer the questions may be considered
unfavorable to him; that if from the facts admitted at the preliminary
interrogatory it appears that the defendant is guilty, he may be immediately
convicted; and that the sentence of the court is not appealable, except in
case of the death penalty which cannot be executed unless and until reviewed
and affirmed by a special division of the Supreme Court composed of three
Justices.
Before proceeding further, and in order to determine the law applicable
to the questions involved in the present case, it is necessary to bear in mind
the nature and status of the government established in these Islands by the
Japanese forces of occupation under the designation of Republic of the
Philippines.
In the case of Co Kim Cham vs. Valdez Tan Keh and Dizon (G. R. No.
L-5, pp. 113, 127, ante), recently decided, this Court, speaking through the
Justice who pens this decision, held:
"In view of the foregoing, it is evident that the Philippine Executive
Commission, which was organized by Order No. 1, issued on January 23,
1942, by the Commanderof the Japanese forces, was a civil government
established by the military forces of occupation and therefore a de
facto government of the second kind. It was not different from the government
established by the British in Castine, Maine, or by the United States in
Tampico, Mexico. As Halleck says, 'the government established over an
enemy's territory during the military occupation may exercise all the powers
given by the laws of war to the conqueror over the conquered, and is subject
to all restrictions which that code imposes. It is of little consequence whether
such government be called a military or civil government. Its character is the
same and the source of its authority the same. In either case it is a
government imposed by the laws of war, and so far as it concerns the
inhabitants of such territory or the rest of the world, those laws alone
determine the legality or illegality of its acts.' (Vol. 2, p. 466.) The fact that the
Philippine Executive Commission was a civil and not a military government
and was run by Filipinos and not by Japanese nationals, is of no
consequence."
And speaking of the so-called Republic of the Philippines in the same
decision, this Court said:
"The so-called Republic of the Philippines, apparently established and
organized as a sovereign state independent from any other government by
the Filipino people, was in truth and reality, a government established by the
belligerent occupant or the Japanese forces of occupation. It was of the same
character as the Philippine Executive Commission, and the ultimate
source of its authority was the same the Japanese military authority and
government. As general MacArthur stated in his proclamation ofOctober 23,
1944, a portion of which has been already quoted, 'under enemy duress, a so-
called government styled as the "Republic of the Philippines" was established
on October 14, 1943, based upon neither the free expression of the peoples'
will nor the sanction of the Government of the United States.' Japan had no
legal power to grant independence to the Philippines or transfer the
sovereignty of the United States to, or recognize the latent sovereignty of, the
Filipino people, before its military occupation and possession of the Islands
had matured into an absolute and permanent dominion or sovereignty by a
treaty of peace or other means recognized in the law of nations."

As the so-called Republic of the Philippines was a de
facto government of the second kind (of paramount force), as the government
established in Castine, Maine, during its occupation by the British forces, and
as that of Tampico, Mexico, occupied during the war with that country by the
United States Army, the questions involved in the present case cannot be
decided in the light of the Constitution of the Commonwealth Government;
because the belligerent occupant was totally independent of the
constitution of the occupied territory in carrying out the administration over
said territory; and the doctrine laid down by the Supreme Court of the United
States in the cases involving the validity of judicial and legislative acts of the
Confederate States, considered as de facto governments of the third kind,
does not apply to the acts of the so-called Republic of the Philippines which is
a de facto government of paramount force. The Constitution of the so-called
Republic of the Philippines can neither be applied, since the validity of an
act of a belligerent occupant cannot be tested in the light of another act of the
same occupant, whose criminal jurisdiction is drawn entirely from the law
martial as defined in the usages of nations.
In the case of United States vs. Rice (4 Wheaton, 246), the Supreme
Court of the United States held that, by the military occupation of Castine,
Maine, the sovereigntyof the United States in the territory was, of course,
suspended, and the laws of the United States could no longer be rightfully
enforced there or be obligatory upon the inhabitants who remained and
submitted to the belligerent occupant. By the surrender the inhabitants passed
under a temporary allegiance to the British government, and were bound by
such laws, and such only, as it chose to recognize and impose. And
Oppenheim, in his Treatise on International Law, says that, in carrying out the
administration over the occupied territory and its inhabitants, "the (belligerent)
occupant is totally independent of the constitution and the laws of the
territory, since occupation is an aim of warfare, and the maintenance and
safety of his forces, and the purpose of war, stand in the foreground of his
interest and must be promoted under all circumstances or conditions." (Vol. II,
Sixth Edition, Revised, 1944, p. 342.)
The doctrine laid down in the decisions of the Supreme Court of the
United States (in the cases of Texas vs. White, 7 Wall., 700; Horn vs.
Lockhart, 17 Wall., 570; Williams vs. Bruffy, 96 U.S., 176; United
States vs. Home Insurance Co., 20 Wall., 249; Sprott vs. United States, 20
Wall., 459, and others) that the judicial and legislative actsof the Confederate
States which impaired the rights of the citizens under the Constitution of the
United States or of the States, or were inconflict with those constitutions, were
null and void, is not applicable to the present case. Because that doctrine
rests on the propositions that "the concession (of belligerency) made to the
Confederate Government . . . sanctioned no hostile legislation . . . and it
impaired in no respect the rights of loyal citizens as they had existed at the
commencement of hostilities" (Williams vs. Bruffy, supra); that the Union is
perpetual and indissoluble, and the obligation of allegiance to the state and
obedience to her laws and state constitution, subject to the Constitution of the
United States, remained unimpaired during the War of Secession
(Texas vs. White, supra) and that the Confederate States "in most, if not in all
instances, merely transferred the existing state organizations to the
support of a new and different national head. The same constitutions, the
same laws for the protection of property and personal rights remained and
were administered by the same officers." (Sprott vs. United States, supra). In
fine, because in the case of the Confederate States, the constitution of each
state and that of the United States or the Union continued in force in those
states during the War of Secession; while the Constitution of the
Commonwealth Government was suspended during the occupation of the
Philippines by the Japanese forces or the belligerent occupant at regular war
with the United States.
The questions which we have to resolve in the present case in the
light of the law of nations are, first, the validity of the creation of the
Court of Special and Exclusive Criminal Jurisdiction, and of the summary
procedure adopted for that court; secondly, the validity of the sentence which
imposes upon the petitioner the penalty of life imprisonment during the
Japanese military occupation; and thirdly, if they were then valid, the effect on
said punitive sentence of the re- occupation of the Philippines and the
restoration therein of the Commonwealth Government.
(1) As to the validity of the creation of the Court of Special and
Exclusive Criminal Jurisdiction by Ordinance No. 7, the only factor to be
considered is the authority ofthe legislative power which promulgated said law
or ordinance. It is well established in International Law that "The criminal
jurisdiction established by the invader in the occupied territory finds its source
neither in the laws of the conquering or conquered state, it is drawn entirely
from the law martial as defined in the usages of nations. The authority thus
derived can be asserted either through special tribunals, whose authority and
procedure is defined in the military code of the conquering state, or through
the ordinary courts and authorities of the occupied district." (Taylor,
International Public Law, p. 598.) The so-called Republic of the Philippines,
being a governmental instrumentality of the belligerent occupant, had
therefore the power or was competent to create the Court of Special and
Exclusive Criminal Jurisdiction. No question may arise as to whether or not a
court is of a political complexion, for it is mere governmental agency charged
with the duty of applying the law to cases falling within its jurisdiction. Its
judgments and sentences may be of a political complexion or not depending
upon the nature or character of the law so applied. There is no room for
doubt, therefore, as to the validity of the creation of the court in question.
With respect to the summary procedure adopted by Ordinance No. 7,
and followed in the trial of the case which resulted in the conviction of the
herein petitioner, there is also no question as to the power or
competence of the belligerent occupant to promulgate the law providing for
such procedure. For "the invader deals freely with the relations of the
inhabitants of the occupied territory towards himself . . . for his security also,
he declares certain acts, not forbidden by the ordinary laws of the country, to
be punishable; and he so far suspends the laws which guard personal liberty
as is required for the summary punishment of any one doing such acts."
(Hall's International Law, seventh ed., p. 500.) A belligerent "occupant may
where necessary, set up military courts instead of the ordinary courts; and in
case, and in so far as, he admits the administration of justice by the ordinary
courts, he may nevertheless, so far as is necessary for military purposes, or
for the maintenance of public order and safety,temporarily alter the laws,
especially the Criminal Law, on the basis of which justice is administered as
well as the laws regarding procedure." (Oppenheim's International Law, Vol.
II, sixth edition, 1944, p. 349.)
No objection can be set up to the legality of its provisions in the
light of the precepts of our Commonwealth Constitution relating to the
rights of accused under that Constitution, because the latter was not in force
during the period of the Japanese military occupation, as we have already
stated. Nor may said Constitution be applied upon its revival at the time of the
re-occupation of the Philippines by virtue of the principle of postliminium,
because "a constitution should operate prospectively only, unless the words
employed show a clear intention that it should have a retrospective effect"
(Cooley's Constitutional Limitations, seventh edition, page 97, and cases
quoted and cited in the footnote), especially as regards laws of procedure
applied to cases already terminated completely.
The only restrictions or limitations imposed upon the power of a
belligerent occupant to alter the laws or promulgate new ones, especially the
criminal law as well as the laws regarding procedure, so far as it is necessary
for military purposes, that is, for his control of the territory and the safety and
protection of his army, are those imposed by the Hague Regulations, the
usages established by civilized nations, the laws of humanity and the
requirements of public conscience. It is obvious that the summary procedure
under consideration does not violate those precepts. It cannot be considered
as violating the laws of humanity and public conscience, for it is less
objectionable, even from the point of view of those who are used to the
accusatory system of criminal procedure, than the procedural laws based on
the semi-inquisitorial or mixed system prevailing in France and other countries
in continental Europe.
(2) The validity of the sentence rendered by the Court of Special and
Exclusive Criminal Jurisdiction which imposes life imprisonment upon the
herein petitioner, depends upon the competence or power of the belligerent
occupant to promulgate Act No. 65 which punishes the crime of which said
petitioner was convicted.
Westlake says that Article XLIII, Section III, of the Hague
Conventions of 1907 "indicates that the laws to be enforced by the occupant
consist of, first, the territorial law in general, as that which stands to the public
order and social and commercial life of the district in a relation of mutual
adaptation, so that any needless displacement ofit would defeat the object
which the invader is enjoined to have in view, and secondly, such
variations of the territorial law as may be required by real necessity and are
not expressly prohibited by any of the rules which will come before us. Such
variations will naturally be greatest in what concerns the relation of the
communities and individuals within the district to the invading army and its
followers, it being necessary for the protection of the latter, and for the
unhindered prosecution of the war by them, that acts committed to their
detriment shall not only lose what jurisdiction the territorial law might give
them as committed against enemies, but shall be repressed more severely
than the territorial law would repress acts committed against fellow subjects.
Indeed the entire relation between the invaders and the invaded, so far as it
may fall within the criminal department whether by the intrinsic nature of the
acts done or in consequence of the regulations made by the invaders, may be
considered as taken out of the territorial law and referred to what is called
martial law." (Westlake, International Law, Part II, War, p. 96.)

According to Hyde (International Law, Vol. II, p. 386), the term "martial
law," in so far as it is used to describe any fact in relation to belligerent
occupation, does not refer to a particular code or system of law, or to a
special agency entrusted with its administration. The term merely signifies that
the body of law actually applied, having the sanction of military authority, is
essentially martial. All law, by whomsoever administered, in an occupied
district is martial law; and it is none the less so when applied by the civil
courts in matters devoid of special interest to the occupant. The words
"martial law" are doubtless suggestive of the power of the occupant to share
the law as he sees fit; that is, to determine what shall be deemed lawful or
unlawful acts, to establish tests for ascertaining the guilt of offenders, to fix
penalties, and generally to administer justice through such agencies as are
found expedient.
And the United States Rules of Land Warfare provide that the
belligerent occupant may promulgate such new laws and regulations as
military necessity demands, and in this class will be included those laws which
come into being as a result of military rule; that is, those which establish new
crimes and offenses incident to a state of war and are necessary for the
control of the country and the protection of the army, for the principal
object of the occupant is to provide for the security of the invading army and
to contribute to its support and efficiency and the success of its operations.
(Pub. 1940, pp. 76,77.)
From the above it appears clear that it was within the power and
competence of the belligerent occupant to promulgate, through the National
Assembly of the so-called Republic of the Philippines, Act No. 65 of the said
Assembly, which penalizes the crimes of robbery and other offenses by
imprisonment ranging from the maximum period of the imprisonment
prescribed by the laws and ordinances promulgated by the President of the
so-called Republic as minimum, to life imprisonment or death as maximum.
Although these crimes are defined in the Revised Penal Code, they were
altered and penalized by said Act No. 65 with different and heavier penalties,
as new crimes and offenses demanded by military necessity, incident to a
state of war, and necessary for the control of the country by the belligerent
occupant, the protection and safety of the army of occupation, its support and
efficiency, and the success of its operations.
They are not the same ordinary offenses penalized by the Revised
Penal Code. The criminal acts penalized by said Act No. 65 are those
committed by persons charged or connected with the supervision and
control of the production, procurement and distribution of foods and other
necessaries; and the penalties imposed upon the violators are different from
and much heavier than those provided by the Revised Penal Code for the
same ordinary crimes. The acts penalized by said Act were taken out of the
territorial law or Revised Penal Code, and referred to what is called martial
law by international jurists, defined above by Hyde, in order, not only to
prevent food and other necessaries from reaching the "guerrillas" which were
harassing the belligerent occupant from every nook and corner of the country,
but also to preserve the food supply and other necessaries in order that, in
case of necessity, the Imperial Japanese forces could easily requisition them,
as they did, and as they had the right to do in accordance with the
law of nations for their maintenance and subsistence (Art. LII, Sec. III, Hague
Conventions of 1907). Especially taking into consideration the fact, ofwhich
this court may take judicial notice, that the Imperial Japanese Army had
depended mostly for their supply upon the produce of this country.
The crime penalized by Act No. 65 as well as the crimes against
national security and the law of nations, to wit: treason, espionage, inciting to
war, violation ofneutrality, correspondence with hostile country, flight to
enemy's country, piracy; and the crimes against public order, such as
rebellion, sedition, and disloyalty, illegal possession of firearms and other,
penalized by Ordinance No. 7 and placed under the jurisdiction of the
Court of Special and Exclusive Criminal Jurisdiction are all of a political
complexion, because the acts constituting those offenses were punished, as
are all political offenses, for public rather than private reasons, and were acts
in aid or favor of the enemy and directed against the welfare, safety and
security of the belligerent occupant. While it is true that these offenses, when
committed against the Commonwealth or United States Government, are
defined and also penalized by the territorial law or Revised Penal Code, they
became inapplicable as crimes against the occupier upon the
occupation of the Islands by the Japanese forces. And they had to be taken
out of the territorial law and made punishable by said Ordinance No. 7, for
they were not penalized before under the Revised Penal Code when
committed against the belligerent occupant or the government established by
him in these Islands. They are also considered by some writers as war crimes
in a broad sense. In this connection Wheaton observes the following:
"Of 'war crimes' the number is naturally indefinite, depending as they do
on the acts from time to time ordered to be done or forbidden to be done in
the martial law proclamation or regulations of the invading or occupying
commander. Thus, in the Anglo-Boer war, the British military authorities
proclaimed the following to be offenses against their martial law; Being in
possession of arms, ammunition, etc.; traveling without a permit; sending
prohibited goods; holding meetings other than those allowed; using seditious
language; spreading alarmist reports; overcharging for goods; wearing
uniforms without due authority; going out of doors between certain hours;
injuring military animals or stores; being in possession, without a
permit, of horses, vehicles, cycles, etc.; hindering those in
execution of military orders; trespassing on defense works. Such offenses,
together with several others, were specified in the Japanese regulations made
in the Russo-Japanese war." (Wheaton's International Law, War. seven
edition, 1944, p. 242.)
It is therefore, evident that the sentence rendered by the
Court of Special and Exclusive Criminal Jurisdiction against the petitioner,
imposing upon him the penalty oflife imprisonment, was good and valid, since
it was within the admitted power or competence of the belligerent occupant to
promulgate the law penalizing the crime ofwhich petitioner was convicted.
(3) The last question is the legal effect of the reoccupation of the
Philippines and restoration of the Commonwealth Government; that is,
whether or not, by the principle of postliminy, the punitive sentence which
petitioner is now serving fell through or ceased to be valid from that time.
In order to resolve this last question, it is not necessary to enter into an
elaborate discussion on the matter. It is sufficient to quote the opinion on the
subject ofseveral international jurist and our recent decision in the case of Co
Kim Cham vs. Valdez Tan Keh and Dizon, supra.
Hall, commenting on the effect of the principle of postliminy upon
sentences of the tribunals continued or created by the belligerent occupant,
opines "that judicial acts done under his control, when they are not of a
political complexion, administrative acts so done, to the extent that they take
effect during the continuance of his control, and the various acts done during
the same time by private persons under the sanction of municipal law, remain
good. . . . Political acts on the other hand fall through as of course, whether
they introduce any positive change into the organization of the country, or
whether they only suspend the working of that already in existence. The
execution also of punitive sentences ceases as of course when they have had
reference to acts not criminal by the municipal law of the state, such for
example as acts directed against the security or control of the invader." (Hall's
International Law, seventh edition, p. 518.)
Westlake, speaking of the duration of the validity of punitive sentences
for offenses such as the one in question, which is within the admitted power or
competenceof the belligerent occupant to punish, says that: "To the extent to
which the legal power of the occupant is admitted he can make law for the
duration of his occupation. Like any other legislator he is morally subject to
the duty of giving sufficient notice of his enactments or regulations, not indeed
so as to be debarred from carrying out his will without notice, when required
by military necessity and so far as practically carrying out his will can be
distinguished from punishment, but always remembering that to punish for
breach of a regulation a person who was justifiably ignorant of it would be
outrageous. But the law made by the occupant within his admitted power,
whether morally justifiable or not, will bind any member of the occupied
population as against any other member of it, and will bind as between them
all and their national government, so far as it produces an effect during the
occupation. When the occupation comes to an end and the authority of the
national government is restored, either by the progress of operations during
the war or by the conclusion of a peace, no redress can be had for what has
been actually carried out but nothing further can follow from the occupant's
legislation. A prisoner detained under it must be released, and no civil right
conferred by it can be further enforced. The enemy's law depends on him for
enforcement as well as for enactment. The invaded state is not subject to the
indignity of being obliged to execute his commands." (Westlake, International
Law, Part II, War, pp. 97, 98.)
And Wheaton, who, as above stated, considers as war crimes such
offenses as those penalized in Ordinance No. 7 and Act No. 65, says: "In
general, the acts of the occupant possess legal validity, and under
international law should not be abrogated by the subsequent government. But
this rule does not necessarily apply to acts that exceed the occupant's power
(e. g., alienation of the domains of the State or the sovereign), to sentences
for 'war treason' and 'war crimes,' to acts of a political character,and to those
that operate beyond the period of occupation. When occupation ceases, no
reparation is legally due for what has already been carried out." (Wheaton's
International Law, supra, p. 245.)

We have already held in our recent decision in the case of Co Kim
Cham vs. Valdez Tan Keh and Dizon, supra, that all judgment of political
complexion of the courts during the Japanese regime, ceased to be valid
upon reoccupation of the islands by virtue of the principle or
right of postliminium. Applying that doctrine to the present case, the sentence
which convicted the petitioner of a crime of a political complexion must be
considered as having ceased to be valid ipso facto upon the reoccupation or
liberation of the Philippines by General Douglas MacArthur.
It may not be amiss to say in this connection that it is not necessary and
proper to invoke the proclamation of General Douglas MacArthur declaring
null and void all, laws, among them Act No. 65, of the so-called
Republic of the Philippines under which petitioner was convicted, in order to
give retroactive effect to the nullification of said penal act and invalidate the
punitive sentence rendered against petitioner under said law, a sentence
which, before the proclamation, had already become null and of no effect.
We therefore hold that the punitive sentence under consideration,
although good and valid during the military occupation of the of the Philippines
by the Japanese forces, ceased to be good and valid ipso facto upon the
reoccupation of these Islands and the restoration therein of the
Commonwealth Government.
In view of all the foregoing, the writ of habeas corpus prayed for is
hereby granted and it is ordered that the petitioner be released forthwith,
without pronouncement as to costs. So ordered.
Jaranilla, Pablo and Bengzon, JJ., concur.
Moran, C.J., concur in the result.
Separate Opinions
OZAETA, J., concurring:
Amidst the forest of opinions that have cropped up in this case it would
seem unnecessary to plant an additional tree. To justify our effort lest we
seem intent to bring coal to Newcastle we ought to state that the following
opinion had been prepared before the others were tendered. It has been
impossible for the Court to reconcile and consolidate the divergent views of its
members although they arrive at practically the same result.
Accused of robbery in the Court of Special and Exclusive Criminal
Jurisdiction of Manila, the petitioner was found guilty and sentenced to life
imprisonment. He commenced to serve the sentence on August 21, 1944. He
now petitions this Court for the writ of habeas corpus, alleging that Ordinance
No. 7, by which the Court ofSpecial and Exclusive Criminal Jurisdiction was
created and which was promulgated on March 8, 1944, by the
President of the "Republic of the Philippines," was null and void ab initio. The
Solicitor General, answering the petition on behalf of the
respondent Director of Prisons, expressed the opinion that "the acts and
proceedings taken and had before the said Court of Special and Exclusive
Criminal Jurisdiction which resulted in the conviction and imprisonment of the
herein petitioner should now be denied force and efficacy," and recommended
"that the writ of habeas corpus prayed for be granted and that the City Fiscal
be instructed to prepare and file the corresponding information for robbery
against the petitioner herein in the Court of First Instance of Manila."
The case was argued before us on September 21 and 22, 1945, by the
First Assistant Solicitor General on behalf of the respondent and the City
Fiscal as amicus curi-the former impugning and the latter sustaining the
validity of said Ordinance No. 7.
Section 1 of the ordinance in question reads as follows:
"Section 1. There is hereby created in every province and city
throughout the Philippines one or more courts of special criminal
jurisdiction as the President ofthe Republic of the Philippines may
determine upon recommendation of the Minister of Justice, which courts
shall have exclusive jurisdiction to try and determine crimes and
offenses penalized by Act No. 65 entitled 'An Act imposing heavier
penalties for crimes involving robbery, bribery, falsification, frauds, illegal
exactions and transactions, malversation of public funds and infidelity as
defined in the Revised Penal Code and violations of food control laws,
when committed by public officers and employees, and for similar
offenses when committed by private individuals or entities, and providing
for a summary procedure for the trial of such offenders.,"
Section 2 confers upon the court mentioned in section 1 exclusive
jurisdiction also to try the following crimes as defined in the Revised Penal
Code; crimes against national security and the law of nations, crimes against
public order, brigandage, arson and other crimes involving destruction, illegal
detention committed by private individuals and kidnapping of minors; and
illegal possession of firearms, as defined in an executive order. Section 3
provides for the appointment of one judge of first instance to preside over the
court above mentioned and of a special prosecutor in each special court.
Section 4 authorizes the court to impose a longer term ofimprisonment that
fixed by law, or imprisonment for life or death where not already fixed by law,
for crimes and offenses mentioned in section 2. The remaining sections read
as follows:
"Sec. 5. The trial of the cases arising under section 1 and 2
hereof shall be started within two days after the filing of the
corresponding information, shall be summary in procedure, and shall aim
at their expeditious and prompt disposition. Technicalities shall be
avoided and all measures calculated to serve this end shall be taken by
the trial judge. Said cases shall be decided within four days after the
same are submitted for decision. The summary procedure provided
in Act No. 65insofar as not inconsistent with the provisions of this
Ordinance, shall govern the trial of the cases enumerated in said
sections 1 and 2 hereof.
"Sec. 6. The decisions of the special courts herein created shall
be final except where the penalty imposed is death, in which case the
records of the particular case shall be elevated en consulta to a special
division of the Supreme Court composed of three members to be
designated by the President of the Republic of the Philippines. The
clerk of each special court, upon the promulgation of a decision imposing
the death penalty, shall immediately forward the records of the case to
the special division of the Supreme Court herein created, which shall
decide the case within fifteen days from the receipt of the records
thereof.
"Sec. 7. The interest of public safety so requiring it, the
privileges of the writ of habeas corpus are hereby suspended with
respect to persons accused of, or under investigation for, any of the
crimes and offenses enumerated in sections 1 and 2 hereof.
"Sec. 8. All laws, rules or orders, or part thereof, inconsistent with
the provisions hereof, are hereby repealed or modified accordingly.
"Sec. 9. This ordinance shall take effect immediately upon its
promulgation."
The summary procedure provided in Act No. 65 of the "Republic," as
referred to in section 5 above quoted, is in turn that established by Chapter
II of Executive Order No. 157 of the Chairman of the Philippine Executive
Commission, dated May 18, 1943. Under said procedure (section 17) "search
warrants may be issued by the court or by any prosecuting officer, authorizing
peace officers to search for and seize any articles or objects described in the
warrant, including those which may be regarded as evidence of an offense
under this Order even if such articles or objects are not included among those
described in section 2, Rule 122, of the Rules of Court." Section 18 reads as
follows:
"Sec. 18. The accused or his representative may be examined by
the court, and with the permission of the court, by the fiscal or other
prosecuting officer as to any matters favorable or unfavorable to him or
his principal; and either may apply to the judge for the examination of the
co-accused or the representative of the latter in matters related to the
defense of the accused. Statements made by the accused, his co-
accused, or the representative of the accused or person acting in a
similar capacity, irrespective of the circumstances under which they were
made, shall be admissible in evidence if material to the issue."
Section 21 provides for the summary trial in the following manner:
"Such trials shall be conducted according to the following rules:
"(a) After arraignment and plea, the court shall immediately cause
to explained to the accused the facts constituting the offenses with which
he is charged, and the judge shall interrogate the accused and the
witnesses as to the facts and circumstances of the case in order to
clarify the points in dispute and those which are admitted.
"(b) Refusal of the accused to answer any questions made or
allowed by the court may be considered unfavorable to him.
"(c) Except for justifiable reasons, the accused shall not be
allowed to plead and assert defenses that are inconsistent with each
other.
"(d) If from the facts admitted at the preliminary interrogation, it
should appear that the accused is guilty of the crime charged in the
information, or in any other information subsequently filed by the
prosecuting officer, a sentence of conviction may be immediately
rendered against the accused. Otherwise, the judge shall dictate an
order distinctly specifying the facts admitted by the accused and those
which are in dispute, and the trial shall be limited to the latter, unless the
judge, for special reasons, otherwise directs.
"(e) Unjustified absence of an accused who has been released on
bail, or his representative shall not be ground for interrupting the
proceedings or attacking the validity of the judgment.
"The provisions of Rules 115 to 117 of the Rules of Court shall be
suppletory to the foregoing insofar as they are not in conflict therewith."
The record shows that during their existence the courts of special and
exclusive criminal jurisdiction created by the ordinance in question convicted
and sentenced a total of 94 individuals, 55 of whom had been prosecuted for
illegal possession of firearms and 15 for robbery; and that of the 94 convicts
only 3, including the herein petitioner, remain in confinement, 21 having
escaped, 37 having been released, and 33 having died.

In synthesis, the argument of the Solicitor General is as follows:
Acts of the military occupant which exceed his power tested by the criterion
set forth in article 43 ofthe Hague Regulations, are null and without effect as
against the legitimate government. (Wheaton's International Law, 7th ed., p.
245.) Acts in furtherance or support ofrebellion against the United States, or
intended to defeat the just rights of citizens, and other Acts of like nature,
must, in general, be regarded as invalid and void. (Texas vs.White, 74 U. S. ,
733; 19 Law. ed., 240.) Judicial or legislative acts in the insurrectionary states
were valid where they were not hostile in their purpose or
mode ofenforcement to the authority of the national government, and did not
impair the rights of citizens under the Constitution. (Horn vs. Lockhart, 17
Wall., 570-581; 21 Law. ed., 660.) All the enactments of the de
facto legislatures in the insurrectionary states during the war, which were not
hostile to the Union or to the authority of the General Government and which
were not in conflict with the Constitution of the United States, or of the states,
have the same validity as if they had been enactments of legitimate
legislatures. (United States vs. The Home Insurance Co., 22 Wall., 99-104; 22
Law. ed., 818.) Tested by these principles of international law, Ordinance No.
7 must be declared void (1) because it favored the forces of occupation and
the civilian Japanese inasmuch as it provided an excessively heavy penalty
for and the summary trial ofpossession of firearms and violations of food
control regulations and (2) because it impaired the rights of citizens under the
Constitution inasmuch as the procedure therein prescribed withdrew the
privilege of the accused against self-incrimination and his right to appeal to
the Supreme Court even where the penalty imposed was life imprisonment or
death.
In substance, the City Fiscal argues that the heavier penalty for the
illegal possession of firearms than that fixed by the Administrative Code was
not directed toward the suppression of underground activities against the
Japanese army, and the rigid enforcement of the food control measures was
not intended to insure the procurementof supplies by said army, because in
any event the Japanese military occupant freely exercised the power recurring
to the agencies of the "Republic," for there were even cases where the
offenders were already in the hands of the police or courts of the "Republic"
but they were unceremoniously taken from said agencies by the Japanese
military police and punished or liquidated by it at Fort Santiago or elsewhere;
and as regards food control, the Japanese forces did not have any
need of the measures or agencies established by the "Republic" because the
Japanese forces themselves commandeered what they needed or sent out
their own agents to purchase it for them at prices even much higher than
those fixed by the "Republic"; that the procedure prescribed afforded a fair
trial and did not violate any fundamental rights; that the military occupant was
not in duty bound to respect the constitution and the laws of the occupied
territory; that he could abrogate all of them and promulgate new ones if he so
chose; that the cases cited by the Solicitor General are not applicable
because they deal with the validity of acts and processes of the
governments of the rebel states during the Civil War and are based upon the
indissolubility of the Union; that the validity or nullity of the ordinance in
question should be judged in the light of the provisionsof the Constitution and
the laws of the "Republic" and of generally accepted principles of international
law; that even assuming that it should be judged by the standard ofthe
Constitution of the Commonwealth, the ordinance satisfies all the
requirements of said Constitution; that the right to appeal in a criminal case is
not a constitutional but purely statutory right which may be granted or withheld
at the pleasure of the state; and finally, that the supposed invalidity of the
sentence imposed against the petitioner cannot be raised by habeas corpus.
There is no question that in virtue of the proclamation of General
Douglas MacArthur of October 23, 1944 (41 Off. Gaz., 147, 148), Ordinance
No. 7 is no longer of any force and effect since the restoration of the
Government of the Commonwealth of the Philippines. The question before us
is whether said ordinance ever acquired any force and effect or was null and
void ab initio.
Invoking decisions of the Supreme Court of the United States in cases
involving the validity of Acts of the Confederacy and of a rebel state as
a de facto government during the Civil War, the Solicitor General maintains
that the ordinance in question was null and void because it impaired the
rights of citizens under the Constitution and because it was hostile in its
purpose to the United States and the Commonwealth of the Philippines.
The decisions invoked would be applicable if the so-called
Republic of the Philippines should be considered as a government
established by the Filipino people in rebellion against the Commonwealth and
the sovereignty of the United States. The decisions of the Supreme
Court of the United States declaring invalid Acts of a rebel state or of the
Confederacy which were in furtherance or support of rebellion against the
United States or which impaired the rights of citizens under the Constitution,
rest on the proposition that the Union is perpetual and indissoluble and that
the obligations of allegiance to the state, and obedience to her laws, subject
to the Constitution ofthe United States, remained unimpaired during the
War of Secession. (See Texas vs. White, 74 U. S., 700; 19 Law., 227, 237;
Williams vs. Bruffy, 96 U. S., 176; 24 Law. ed., 716.) Obviously, that
proposition does not hold true with respect to a de facto government
established by the enemy in an invaded and occupied territory in the
course of a war between two independent nations. Such territory is possessed
temporarily by a lawful government at war with the country of which the
territory so possessed is a part, and during that possession the
obligation of the inhabitants to their country are suspended, although not
abrogated. (United States vs. Rice, 4 Wheat., 253; Fleming vs.Page, 9 How.,
614; Badly vs. Hunter, 171 U. S., 388; 43 Law. ed., 208, 210.) In the
case of Williams vs. Bruffy, supra, the court, speaking through Mr. Justice
Field, observed: "The rule stated by Vattel, that the justice of the cause
between two enemies being by the law of nations reputed to be equal,
whatsoever is permitted to the one in virtueof war is also permitted to the
other, applies only to cases of regular war between independent nations. It
has no application to the case of a war between an established government
and insurgents seeking to withdraw themselves from its jurisdiction or to
overthrow its authority. The court further stated that the
concession of belligerent rights made to the Confederate Government
sanctioned no hostile legislation and impaired in no respect the rights of loyal
citizens as they had existed at the commencement of hostilities.
On the other hand, in war between independent nations "the
rights of the occupant as a law-giver have broad scope." He may "suspended
the existing laws and promulgate new ones when the exigencies of the
military service demand such action. According to the Rules of Land Warfare
he will naturally alter or suspend all laws of a political nature as well as
political privileges, and all laws which affect the welfare and safety of his
command." (Hyde on International Law, vol. 2, p. 367.) It will be seen then
that in a war between independent nations the army of occupation has the
right to enact laws and take measures hostile to its enemy, for its purpose
was to harass and subdue the latter; and it is not bound to respect or preserve
the rights of the citizens of the occupied territory under their Constitution.
Let us now look into the nature and status of the government styled
"Republic of the Philippines" in order to determine the criterion by which the
validity of its enactments should be tested. In the recent case of Co Kim
Cham vs. Valdez Tan Keh and Dizon (G. R. No. L-5, p. 113, ante), this Court,
speaking through Justice Feria, had occasion to comment upon the
nature of said government in the following words:
"The so-called Republic of the Philippines, apparently established
and organized as a sovereign state independent from any other
government by the Filipino people, was, in truth and reality, a
government established by the belligerent occupant or the Japanese
forces of occupation. It was of the same character as the Philippine
Executive Commission, and the ultimate source of its authority was the
same the Japanese military authority and government. As General
Douglas MacArthur stated in his proclamation of October 23, 1944, a
portion of which had been already quoted, 'under enemy duress a so-
called government styled as the Republic of the Philippines" was
established on October 14, 1943, based upon either the free
expression of the peoples' will nor the sanction of the Government ofthe
United States.' Japan had no legal power to grant independence to the
Philippines or transfer the sovereignty of the United States to, or
recognize the latent sovereignty of, the Filipino people, before its military
occupation and possession of the Islands had matured into an absolute
and permanent dominion or sovereignty by a treaty of peace or other
means recognized in the law of nations. For it is a well- established
doctrine in international law, recognized in Article 45 ofthe Hague
Convention of 1907 (which prohibits compulsion of the population of the
occupied territory to swear allegiance to the hostile power), that
belligerent occupation, being essentially provisional, does not serve to
transfer sovereignty over the territory controlled although the de
jure government is during the period ofoccupancy deprived of the power
to exercise its rights as such. (Thirty Hoghead of Sugar vs. Boyle, 9
Cranch, 191; United States vs. Rice, 4 Wheat., 246; Fleming vs.Page, 9
Howard, 603; Downes vs. Bidwell, 182 U.S., 345.) The formation of the
Republic of the Philippines was a scheme contrived by Japan to delude
the Filipino people into believing in the apparent magnanimity of the
Japanese gesture of transferring or turning over the rights of government
into the hands of Filipinos. It was established under the mistaken belief
that, by doing so, Japan would secure the cooperation or at least the
neutrality of the Filipino people in her war against the United States and
other allied nations."

We reaffirmed those statements. To show further the fictitious
character of the much-propagandized "independence" which Japan purported
to grant to the Philippines through the establishment of the "Republic," we
may add that, as a matter of contemporary history and of common knowledge,
in practice the Japanese military authorities in the Philippines never treated
the "Republic of the Philippines" as an independent government after its
inauguration. They continued to impose their will on its executive officials
when their interest so required. The Japanese military police arrested and
punished various high officials of said government, including the First
Assistant Solicitor General, and paid no attention to the protest and
representations made on their behalf by the President of the "Republic." As a
climax of their continual impositions, in December 1944 the Japanese military
authorities placed the President and the members of his Cabinet under the
"protective" custody of the military police, and on the 22d of that month forced
them to leave the seat of government in Manila and hide with them in the
mountains. The only measure they did not succeed in imposing upon the
"Republic" was the conscription of the Filipino youth into an army to fight with
the Japanese against the United States. So, while in theory and for the
purpose of propaganda Japan professed to be a benefactor and
liberator of the Filipinos, hoping thereby to secure their willing cooperation in
her war efforts, in practice she continued to enslave and oppress the Filipinos,
as she saw that the latter remained loyal to the United States. She found that
the Filipinos merely feigned cooperation as their only means of self-
preservation and that those who could stay beyond the reach of her
army of occupation manifested their hostility by harassing and attacking that
army. Thus Japan continued to oppress and tyrannize the Filipinos
notwithstanding the former's grant of "independence" to the latter. It would
therefore be preposterous to declare that the "Republic of the Philippines"
was a government established by the Filipino people in rebellion against the
Commonwealth and the sovereignty of the United States.
The said government being a mere instrumentality of the Commander
in Chief of the Japanese army as military occupant, the ordinance in question
promulgated by the President of the "Republic" must be deemed as an act
emanating from the power or authority of said occupant. The question,
therefore, is whether or not it was within the competence of the military
occupant to pass such a law.
Article 43 of the Hague Regulations provides as follows:
"Art. 43. The authority of the legitimate power having actually
passed into the hands of the occupant, the latter shall take all steps in
his power to reestablish and insure, as far as possible, public order and
safety, while respecting, unless absolutely prevented, the laws in force in
the country."
Commenting upon this article, Hyde in his work on International Law,
volume 2, pages 366, 367, 368, says:
"In consequence of his acquisition of the power to control the
territory concerned, the occupant enjoys the right and is burdened with
the duty to take all the measures within his power to restore and insure
public order and safety. In so doing he is given great latitude with
respect to choice of means and mode ofprocedure. This freedom may be
partly due to the circumstance that the occupant is obliged to consider
as a principal object the security, support, efficiency and success of his
own force in a hostile land inhabited by nationals of the enemy. . . .
xxx xxx xxx
"The right to legislate is not deemed to be unlimited. According to
the Hague Regulations of 1907, the occupant is called upon to respect,
'unless absolutely prevented, the laws in force in the country.' Thus in
restoring public order and safety he appears to be bound to make
serious endeavor to continue in force the ordinary civil and criminal laws
which do not conflict with the security of his army or its support, efficacy,
and success."
In the exercise of his powers the commander must be guided by his
judgment and his experience and a high sense of justice. (President
McKinley, Order to the Secretary of War, July 18, 1898, on
occupation of Santiago de Cuba by the American forces, Moore, Dig. VII, P.
261.)
Acts of the military occupant which exceed his power tested by the
criterion set forth in article 43 of the Hague Regulations, are null and without
effect as against the legitimate government. (Wheaton's International Law, 7th
ed. [1944], p. 245.)
Hall in his treatise on International Law (7th edition), discussing the
extent of the right of a military occupant, states:
"If occupation is merely a phase in military operations, and implies
no change in the legal position of the invader with respect to the
occupied territory and its inhabitants, the rights which he possesses over
them are those which is special circumstances represent his general
right to do whatever acts are necessary for the prosecution of his war; in
other words he has the right of exercising such control, and such control
only, within the occupied territory as is required for his safety and the
success of his operations. . . . On occupying a country an invader at
once invest himself with absolute authority; and the fact of occupation
draws with it as ofcourse the substitution of his will for previously existing
law whenever such substitution is reasonably needed, and also the
replacement of the actual civil and judicial administration by military
jurisdiction. In its exercise however this ultimate authority is governed by
the condition that the invader, having only a right to such control as is
necessary for his safety and the success of his operations, must use his
power within the limits defined by the fundamental notion of occupation,
and with due reference to its transient character. He is therefore
forbidden as a general rule to vary or suspend laws affecting property
and private personal relations, or which regulate the moral order of the
community. . . ." (pages 498, 499.)
We deduce from the authorities that the power of the occupant is broad
and absolute in matters affecting his safety. But in affairs which do not affect
the security, efficacy, and success of his military operations, his power is
qualified by the transient character of his administration. He is forbidden "to
vary or suspend laws affecting property and private personal relations, or
which regulate the moral order of the community." Unless absolutely
prevented, he is bound to respect the laws, civil and criminal, in force in the
country.
Tested by this criterion, was it within the power or competence of the
Commander in Chief of the Japanese army of occupation of the Philippines to
promulgate Ordinance No. 7? In so far as said ordinance created new
court of special criminal jurisdiction we think his power and enforce it during
the occupation cannot be seriously disputed; but in so far as that ordinance
varied radically our law of criminal procedure and deprived the
accused of certain rights which our people have always treasured and
considered inviolate, we are of the opinion that it transcended his power or
competence. We base this opinion upon the following considerations:
1. The occupant was not absolutely prevented from respecting our
law of criminal procedure and applying it in the Court of Special and Exclusive
Jurisdiction. The application or nonapplication of said law did not affect the
security, efficacy, and success of his military operations. The crimes over
which the said court was vested with jurisdiction were mostly crimes against
property penalized in our Revised Penal Code, which crimes did not affect the
army of occupation. As to the illegal possession offirearms the City Fiscal
himself, who sustains the validity of the ordinance, informs us that did not
avail himself of said court but punished his enemies direct without recurring to
the agencies of the "Republic"; and he further informs us that "as regards food
control, the Japanese forces did not have any need of the measures or
agencies established by the 'Republic', nor did they make use of them.
2. The summary procedure prescribed in Ordinance No. 7 was
inquisitorial, repugnant to the humanitarian method of administering criminal
justice by all progressive, democratic, and freedom-loving countries of the
world, and, therefore, devoid of that high sense of justice by which the military
occupant must be guided in the exercise of his powers. This concept is, we
think, borne out by an examination of the following features of said procedure:
(a) Under the rule of procedure embodied in said ordinance any
prosecuting officer may, on his own volition and even without probable cause,
issue a search warrant for the seizure of documents and articles which may
be regarded as evidence of an offense in violation of section 2, Rule
122 of the Rules of Court and of the Bill of Rights contained in the
Constitution of the Commonwealth, which guarantees "the right of the people
to be secure in their persons, houses, papers, and effect against
unreasonable searches and seizures," and prohibits the issuance of warrants
except after upon probable cause to be determine by the judge after
examination under oath or affirmation of the complainant and the witnesses
he may produce.
(b) The trial must be commenced within two days after the filing of the
information in violation of section 7, Rule 114, which gives the accused at
least two days after the plea of not guilty within which to prepare for trial.
(c) The presumption of innocence in favor of the accused, in all criminal
prosecutions until the contrary is proved, which is likewise guaranteed by the
Bill of Rights, is violated in that, after the arraignment and before the
presentation of any proof for the prosecution, the accused is interrogated by
the judge as to the facts obtained by such interrogation it should appear (to
the judge) that the accused is guilty a sentence of conviction may be
immediately rendered against him, thereby also depriving himof his right to
meet the witnesses face to face and of his privilege against self- incrimination.

The City Fiscal justifies this feature of the procedure by giving the
following hypothetical case: "In the house of Juan and under his bed a
policeman finds a revolver. Juan is arrested and an information for illegal
possession of firearms is filed against him by the fiscal. He is brought before
the judge of the corresponding special court for the preliminary interrogatory.
He is asked whether or not he admits that the revolver was found in his
house. He answers in the affirmative but says that he is not the owner of the
revolver and he does not know how it was placed there. Asked whether he
knows of anybody who could have placed the revolver under his bed, he
answers that it might have been placed there by a guest who slept on his bed
the night previous to its discovery by the police. He is asked to give the
name of the guest referred to and his address, but he refuses to answer.
Asked if he has other witnesses to support his claim, he answer that he has
none. As may be seen, the evidence of guilt is complete, and there being no
further evidence to be presented that may change the result the accused may
be then and there sentenced by the court. In this case, the conviction of the
accused is reasonable and fair, for his refusal to reveal the identity of his
alleged guest may be due, either to the fact that there was no such guest, or
that the cause for concealing his identity is worth suffering for. Volenti non fit
injuria."
But to us that hypothetical case is a good illustration of the
injustice of such procedure. There the accused was convicted not because
the prosecution had proved his guilt but because he was unable to prove his
innocence. His inability to prove who the owner of the revolver was, did not to
our mind prove him guilty beyond reasonable doubt, under the circumstances.
He was accused of illegal possession of firearm, an offense punishable under
the ordinance in question with imprisonment for six to twelve years. He
pleaded not guilty, for according to him the revolver was not his and he did not
know how it got into his house. He had no time harm had planted it before, for
no sooner was the revolver seized than he was brought before the court and
interrogated about it when he was naturally dazed and in a state of alarm. If
the law ofcriminal procedure had been followed, he would had ample time to
reflect and endeavor to unravel the mystery. He could have consulted a
lawyer, and he would have been entitled to at least two days after the
information was read to him to investigate the facts and prepare for the trial.
At the trial he would not have been required to answer any question or
present any proof in his defense until the prosecution had presented its
witnesses, principally the policeman. His lawyer could have cross-examined
the policeman and found out from him whether he had any grudge against the
accused and how he happened to search the latter's house. From the
testimony of the policeman the accused might have been enlightened as to
how and by whom the revolver was placed in his house. Suppose that the
policeman should say that his informant as to the presence of the revolver
under the bed of the accused was a houseboy of the latter, and suppose that
houseboy was really the one who planted the revolver because of some
grievance he had against his master but that the latter had not suspected
before that his houseboy had any revolver. In view of the revelation ofthe
policeman he would have been able to investigate and ascertain that fact. In
that way he could have satisfactorily explained how and by whom the revolver
was placed under his bed. But under the procedure in question as outlined by
the City Fiscal, the accused was of course utterly unable to do that and was
consequently doomed to at least six years' imprisonment for a crime he had
not committed. (d) Section 6 of the Ordinance in question provided: "The
decisions of the special courts herein created shall be final except where the
penalty imposed is death, in which case the records of the particular case
shall be elevated en consulta to a special division of the Supreme Court
composed of three members to be designated by the President of the
Republic of the Philippines." Under our law of criminal procedure, which the
military occupant was bound to respect unless absolutely prevented, all
persons accused of any offense have the right to appeal to the
Court of Appeals or to the Supreme Court. It is true that as a rule that right is
statutory and may be withdrawn by the legislature except in certain cases
where the right to appeal is provided in the Constitution itself, as in the cases
involving life imprisonment and death penalty; but the question here is not
whether the legislative department of the legitimate government has the
power to abrogate that right but whether it was within the competence of the
military occupant to do so.
(e) In the instant case the penalty imposed upon the accused by the
special court, after a summary trial, was life imprisonment, and he was denied
the right to have that sentence reviewed by the Supreme Court, altho under
subsection 4, section 2, Article VIII of the Constitution of the Commonwealth,
he could not have been deprived by law of that right.
( f ) Section 7 of the Ordinance suspended the privilege of the
writ of habeas corpus with respect to persons accused of or under
investigation for any of the crimes and offenses enumerated in sections 1 and
2. The Constitution of the Commonwealth prohibits the suspension of that
privilege except in cases of invasion, insurrection, or rebellion when the public
safety requires it. The suspension by the ordinance was not motivated by any
one of these cases but by the necessity for waging a campaign against
certain classes of crimes; martial law was not declared; and the
suspension of habeas corpus did not apply to all persons living in a specified
territory (as should have been done if the public safety required such
suspension) but only in those accused of or investigated for certain specified
crimes or offenses. The result of such partial suspension was that persons
accused of or under investigation for any of the offenses specified in sections
1 and 2 could be held in detention indefinitely, whereas persons accused of or
under investigation for crimes other than those specified, such for example as
theft, physical injuries, homicide, murder, and parricide, had the right to
demand their release by habeas corpus after the lapse of six hours. The same
discrimination holds true with reference to the other features already noted
above, namely, unreasonable searches and seizures, summary trial,
denial of the presumption of innocence, self-incrimination, and denial of the
right to appeal. Such discrimination was unwarranted and unjust and was
contrary to the concept of justice prevailing in all democratic countries, where
every person is entitled to the equal protection of the laws.
3. It is apparent from the foregoing examination of the main
features of the ordinance that while the methods thus adopted may not be
unusual under totalitarian governments like those of the aggressor nations in
the recent global war, they are strange and repugnant to the people of the
democratic countries which united together to defeat said aggressors and "to
reaffirm faith in fundamental human rights, in the dignity and worth of the
human person, in the equal rights of men and women and ofnations large and
small, . . .and to promote social progress and better standards of life in larger
freedom." (Preamble Charter for Peace adopted by the United Nations at San
Francisco, California, June 26, 1945.) The recent global war was a clash
between two antagonistic ways of life, between facism and democracy. It
would be strange indeed if this Court, which functions under a democratic
government that fought with the other democratic nations in that war, should
sanction or approve the way of life, against which that war was fought and
won at the cost of millions of lives and untold sacrifices.
4. The case involves the interpretation not of constitutional
but of international law, which "is based on usage and opinion"; and "he who
in such a case bases his reasoning on high considerations of morality may
succeed in resolving the doubt in accordance with humanity and justice."
(Principles of International Law, Lawrence, 7th ed., pp. 12, 13.) We think the
contentions for the petitioner against the validity of the ordinance in question
are in accord with humanity and justice.
Before concluding this opinion we deem it pertinent to comment on the
remark of the City Fiscal that, as stated in its preamble, the ordinance in
question was promulgated in response to "an urgent necessity for waging an
immediate and relentless campaign against certain classes of crimes and
offenses and expediting the trial and determination thereof in order to hasten
the re-establishment of peace and order throughout the country and promote
a feeling of security among the people conducive to the earlier
return of normalcy in our national life." We concede that the objective of the
author of the ordinance was commendable, but we think and in this we are
supported by the actual result it was unattainable thru the means and
methods prescribed in said ordinance. Peace and order and normalcy could
not be restored unless the root cause of their disturbance were eliminated
first. That cause was the presence in the country of the Japanese army, which
wrecked our political, social, and economic structures, destroyed our
means of communication, robbed the people of their food, clothing, and
medicine and other necessities of life, ejected them from their own homes,
punished and tortured innocent men and women, and otherwise made life
unbearable. The relative rampancy of the crimes mentioned in said ordinance
was but the effect of that cause. The cornering and hoarding of foodstuffs
would not have occurred were it not for the scarcity produced by the seizures
and requisitions made by the Japanese army and the disruption of our
commerce and industries on account of the invasion. The
possession of firearms was rendered desirable to many persons to defend
themselves against or attack the invader. Robberies and other crimes against
property increased as a result of hunger and privation to which the people
were subjected by the rapacity of the Japanese. It was a delusion to expect
peace and normalcy to return without eliminating the cause of their
disturbance; and the eliminationof that cause meant the expulsion or
destruction of the Japanese army in the Philippines an objective to which
the ordinance was not addressed. So, even from the pointof view of the
Filipino people and not of the Japanese army of occupation, the ordinance in
question results untenable.

Having reached the conclusion that the enactment of the procedure
embodied in said ordinance for the special court therein created was beyond
the competence ofthe occupant, inasmuch as that procedure was inseparable
from the first part of the ordinance which creates the special court and
prescribes the jurisdiction thereof, we are constrained to declare the whole
ordinance null and void ab initio. Consequently the proceedings in said court
which resulted in the conviction and sentence of the petitioner are also void.
PARAS, J., concurring:
Charged with robbery, the petitioner herein was found guilty and
sentenced to suffer life imprisonment. He commenced to serve the term on
August 21, 1944. Inasmuch as he was a member of the Metropolitan
Constabulary, the basis of the information was Act No. 65, passed during the
Japanese-sponsored Republic of the Philippines and amending certain
articles of the Revised Penal Code. The trial was held by the existing
Court of Special and Exclusive Criminal Jurisdiction which was authorized to
conduct proceedings in a special manner. (Ordinance No. 7 of the
"Republic.")
After General of the Army Douglas MacArthur had issued the
Proclamation dated October 23, 1944, the Act under which the petitioner was
charged and convicted stands nullified, and the original provisions of the
Revised Penal Code restored. By virtue of article 22 of the said Code, "Penal
laws shall have a retroactive effect in so far as they favor the person
guilty of a felony, who is not a habitual criminal, as this term is defined in rule
5 of article 62 of this Code, although at the time of the publication ofsuch laws
a final sentence has been pronounced and the convict is serving the same."
In the absence of other details, it may here be assumed that the offense
committed is that defined in article 294, paragraph 5, which provides as
follows:
"Any person guilty of robbery with the use of violence against or
intimidation of any person shall suffer:
"The penalty of prision correccional to prision mayor in its medium
period in other cases."
In accordance with the provisions of the Indeterminate Sentence Law
(Acts Nos. 4103 and 4225), the maximum of the minimum penalty that can be
imposed is six months of arresto mayor.
This Court has already dismissed cases wherein the defendants were
charged with the violation of laws in force at the time of the commission and
trial of the crime, after said laws had been repealed by subsequent legislation,
People vs. Moran (44 Phil., 287); People vs. Tamayo (61 Phil., 226), and also
repeatedly released on writs ofhabeas corpus prisoners who, although
sentenced to suffer long terms of imprisonment, were given the
benefit of subsequent legislation either repealing the statute under which they
had been convicted or modifying the same by imposing lesser penalties,
Escalante vs. Santos (56 Phil., 483); Directo vs. Director of Prisons (56 Phil.,
692).
Prisoners who behave well are almost always liberated upon the
expiration of the minimum penalty fixed in the judgments of conviction or
within a reasonable time thereafter. In the present case, there being no
information that the petitioner has acted otherwise, and having served more
than double the period of the minimum penalty that could be imposed upon
him, he should be released. As this is the effect of the decision of the majority,
I concur in the result.
DE JOYA, J., concurring:
The principal question involved in this case is the validity of the judicial
proceedings held in criminal case No. 66 of the Court of Special and
Exclusive Criminal Jurisdiction, established in the City of Manila, during
Japanese occupation, under the authority of Ordinance No. 7, issued by the
President of the so-called Philippine Republic, and the effect on said
proceedings of the proclamation of General Douglas MacArthur, dated
October 23, 1944.
In said criminal case, herein petitioner was accused of the
crime of robbery and sentenced to life imprisonment, on August 21, 1944.
There can be no doubt that the government established in this country
by the Commander in Chief of Japanese Imperial forces, under the
name of the Philippine Executive Commission, was a de facto government, as
already held by this Court in civil case G.R. No. L-5, entitled Co Kim
Cham vs. Valdez Tan Keh and Dizon, decided on September 17, 1945 (p.
113, ante). Said government possessed all the characteristics of a de
facto government, as defined by the Supreme Court of the United States, in
the following language:
"But there is another description of government, called also by
publicists a government de facto, but which might, perhaps, be more
aptly denominated agovernment of paramount force. Its distinguishing
characteristics are (1), that its existence is maintained by active military
power within the territories, and against the rightful authority of an
established and lawful government; and (2), that while it exists it must
necessarily be obeyed in civil matters by private citizens who, by
acts of obedience rendered in submission to such force, do not become
responsible, as wrongdoers, for those acts, though not warranted by the
laws of the rightful government. Actual governments of this sort are
established over districts differing greatly in extent and conditions. They
are usually administered directly by military authority, but they may be
administered, also, by civil authority, supported more or less directly by
military force." (MacLeod vs. United States [1913], 229 U. S., 416.)
Under a de facto government, the courts of the country, under military
occupation, should be kept open, and wherever practicable, the subordinate
officers of the local administration should be allowed to continue in their
functions, supported by the military force of the invader, because the
responsibility of maintaining peace and public order, and of punishing crime,
falls directly upon the commander in chief of the occupying forces. And in the
performance of this duty, he may make use of the local courts, wholly or in
part; or he may proclaim martial law (Davis, Elements of International Law [3d
ed.], pp. 330-332).
In occupied territory, the conquering power has a right to displace the
pre-existing authority, and to assume to such extent as it may deem proper
the exercise by itself of all the powers and functions of government. It may
appoint all the necessary officers and clothe them with designated powers,
according to its pleasure. It may prescribe the revenues to be paid, and apply
them to its own use or otherwise. It may do anything necessary to strengthen
itself and weaken the enemy. There is no limit to the powers that may be
exerted in such cases, save those which are found in the laws and customs
and usages of war (Cross vs. Harrison, 16 How., 164; Leitensdorfervs. Webb,
20 Id., 176; The Grapeshot, 9 Wall. [U.S.], 129; New Orleans vs. Steamship
Co. [1874], 20 Wall. [U.S.], 287).
It is generally the better course for the inhabitants of the territory, under
military occupation, that they should continue to carry on the ordinary
administration under the invader; but the latter has no right to force them to do
so. If they decline, his only rights, and it is also his duty, is to replace them by
appointees of his own, so far as necessary for maintaining order and the
continuance of the daily life of the territory: other purposes, as those of the
superior judicial offices, can bide their time (Westlake, International Law, Parr
II, 2d ed., pp. 121-123).
Though the fact of occupation imposes no duties upon the
inhabitants of the occupied territory, the invader himself is not left equally free.
As it is a consequence ofhis acts that the regular government of the country is
suspended, he is bound to take whatever means are required for the
security of public order; and as his presence, so long as it is based upon
occupation, is confessedly temporary, and his rights of control spring only
from the necessity of he case, he is also bound to alter or override the existing
laws as little as possible (Hall, International Law, 6th ed., p. 476).
The government established here under the Philippine Executive
Commission was more in consonance with the general practice among
civilized nations, in establishing governments for the maintenance of peace
and order and the administration of justice, in territories of the enemy under
military occupation; because said government was of a temporary character.
The government subsequently established under the so-called
Philippine Republic, with a new constitution, was also of the nature of a de
facto government, in accordance with International Law, as it was established
under the authority of the military occupant and supported by the armed
forces of the latter. But it was somewhat different from that established under
the Philippine Executive Commission, because the former apparently, at least,
had the semblance of permanency, which, however, is unusual in the
practices among civilized nations, under similar circumstances.
Under military occupation, the original national character of the soil
and of the inhabitants of the territory remains unaltered; and although the
invader is invested with quasi-sovereignty, which gives him a claim as of right
to the obedience of the conquered population, nevertheless, its exercise is
limited by the qualification which has gradually become established, that he
must not, as a general rule, modify the permanent institutions of the country
(Hall, International Law, 6th ed., p. 460).
The Convention Concerning the Laws and Customs of War on Land,
adopted at the The Hague in 1899, lays down (Arts. 42, 43) definite rules
concerning military authority over the territory of a hostile state. In addition to
codifying the accepted law, it provides that the occupant must respect, unless
absolutely prevented, the laws in force in the country.
It will thus be readily seen that the municipal law of the invaded state
continues in force, in so far as it does not affect the hostile occupant
infavorably. The regular courts of the occupied territory continue to act in
cases not affecting the military occupation; and it is not customary for the
invader to take the whole administration into his own hands, as it is easier to
preserve order through the agency of the native officials, and also because
the latter are more competent to administer the laws of the territory; and the
military occupant, therefore, generally keeps in their posts such of the judicial
officers as are willing to serve under him, subjecting them only to supervision
by the military authorities, or by superior civil authorities appointed by him
(Young vs. United States, 97 U.S., 39; 24 Law. ed., 992;
Coleman vs. Tennessee, 97 U.S., 509; 24 Law. ed., 1118; Macleod vs. United
States, 229 U.S., 416; 33 Sup. Ct., 955; 57 Law. ed., 1260; Taylor,
International Law, secs. 576, 578; Wilson, International Law, pp. 331-337;
Hall, International Law, 6th ed. (1909), pp. 464, 465, 475, 476; Lawrence,
International Law, 7th ed., pp. 412- 413; Davis, Elements of International Law,
3rd ed., pp. 330-332, 335; Holland, International Law, pp. 356-57, 359;
Westlake, International Law, Prt II, War, 2d ed., pp. 121-123).

The judicial proceedings conducted, under the municipal law of the
territory, before the court established by the military occupant, are generally
considered legal and valid, even after the government established by the
invader had been displaced by the legitimate government of said territory.
Thus the judgment rendered by the Confederate courts, during the Civil
War, merely settling the rights of private parties actually within their
jurisdiction, not tending to defeat the legal rights of citizens of the United
States, nor in furtherance of laws passed in aid of the rebellion, had been
declared legal, valid and binding (Coleman vs.Tennessee, 97 U.S., 509; 24
Law. ed., 1118; Williams vs. Bruffy, 96 U.S., 176; Horn vs.Lockhart, 17 Wall.,
570; 21 Law. ed., 660; Sprott vs. United States, 20 Wall., 249; 22 law. ed.,
371).
When the military forces of the Confederate states were destroyed,
their government perished, and with it all its enactments. But the legislative
acts of the several States forming the Confederacy stood on a different
ground, and so far as they did not impair or tend to impair the
supremacy of the national authority, or the just rights ofcitizens, under the
Federal constitution, they were considered as legal, valid and binding
(Williams vs. Bruffy, 96 U.S., 177; 24 Law. ed., 716; Ford vs. Surget, 97 U.S.,
594; 24 Law. ed., 1018; United States vs. Ins. Co., 22 Wall. [U.S.], 99; 22
Law. ed., 816; Ketchum vs. Buckley [1878], 99 U.S., 188; Johnson vs. Atlantic
G & W. I. Transit Co., 156 U.S., 618; 15 Sup. Ct., 520).
In a later case, the Supreme Court of the United States reaffirmed that
the judicial and legislative acts of the rebellious States, as de
facto governments, should be respected by the courts, if they were not hostile
in their purpose or mode of enforcement to the authority of the national
government, and did not impair the rights ofcitizens under the Federal
Constitution. (Baldy vs. Hunter, 171 U.S., 388; 18 Sup. Ct., 890; 43 Law. ed.,
208.)
Under the proclamation of General Douglas MacArthur, dated October
23, 1944, declaring null and void all laws, regulations and processes issued
and promulgated by the Philippine Executive Commission and the Philippine
Republic, during Japanese occupation, said Ordinance No. 7 promulgated on
March 8, 1944, creating the Court ofSpecial and Exclusive Criminal
Jurisdiction, ostensibly for the speedy reestablishment of peace and order,
and Executive Order No. 157 of the Chairman of the Executive Commission,
prescribing summary rules of procedure, and other allied laws, such as Act
No. 65 of the puppet republic, prescribing heavier penalties, became null and
void, once the Japanese armies in the Philippines had been defeated, as with
them the de facto governments, successively established under them,
perished, and with them all their enactments and processes of a hostile
character.
But there are other considerations equally important why judicial
proceedings held and conducted before the courts established by said de
facto governments, under laws promulgated by them, should be declared null
and void, without violating, in the least, settled principles, judicial precedents
or public policy.
Said ordinance No. 7 adopted as integral parts thereof said Executive
Order No. 157, as well as said Act. No. 65 of the National Assembly of the
puppet republic, prescribing exceptionally heavy penalties for the crimes
enumerated therein.
The principal crimes mentioned in said Ordinance No. 7 and Act No.
65 of the puppet republic and other allied laws are illegal
possession of firearms, robbery, violations of food-control laws, falsification,
malversation and bribery; and it was under said laws that herein petitioner
was prosecuted and sentenced to life imprisonment for the crime of robbery.
The penalty of life imprisonment or death for robbery was aimed
principally at the underground forces resolute and determined to seize and
remove stores of food provisions, whenever possible, to prevent them from
falling into the hands of the enemy.
The penalty of twelve years' imprisonment for illegal
possession of firearms was directed mainly against those underground forces,
that had been receiving arms from the forces of liberation across the seas.
Violations of food-control laws were included and used as a pretext and
justification for the seizure and confiscation of food provisions so badly
needed by the invader.
And the inclusion under said Ordinance No. 7 of the crime of bribery
and others was used as a cloak to conceal its venom and make said law look
innocent.
By the imposition of excessive penalties, by the denial of the
remedy of habeas corpus, by compelling the accused to testify against
themselves, and by denying them the right of appeal to the highest
court of the land, except where the death penalty was imposed, and by its
summary procedure, said Ordinance No. 7 and the other allied laws impaired
and defeated the just and legal rights of Filipino citizens under the
Commonwealth Constitution, and the supremacy of the authority of the
legitimate Government. Under said laws, the persons accused were
deprived of liberty without due process of law.
In the language of this Court, "the phrase 'due process of law' used in
the Philippine Bill should receive a comprehensive interpretation, and no
procedure should be treated as unconstitutional which makes due provision
for the trial of alleged criminal before a court of competent jurisdiction, for
bringing the accused into court and notifying him of the cause he is required
to meet, for giving him an opportunity to be heard, for the deliberation and
judgment of the court, and for an appeal from such judgment to the highest
tribunal" (United States vs. Kennedy, 18 Phil., 122).
In their conception, in their purpose and mode of enforcement and
execution said laws were hostile to the authority of the Commonwealth
Government and that ofthe United States of America; as they had been
promulgated in furtherance of the war aims of the enemy, and they are,
therefore, of a political character and complexion.
Those repressive laws were aimed at the men and women who had
kept the faith, and whose heroes and martyrs now lie in graves still unknown
and whose names remain unsung; but whose heroic efforts and sacrifices
have made immortal the legends of Filipino resistance, and made possible our
participation in the councils of free and liberty-loving peoples and nations.
Said laws are contrary to the principles of Democracy, championed by
North America, whose gigantic efforts and heroic sacrifices have vindicated
human rights, human dignity and human freedom, and consecrated them
anew all over the earth with the generous blood of her children. They violate
the fundamental principles ofJustice for which civilized Mankind stands, under
the benign leadership of America, which has saved the World from the
claws of Totalitarianism and given all the nations ofthe earth a new birth as
well as a new charter of freedom, to enable each and everyone to live a
nobler and more worthy life and realize the justice and prosperity of the future.
For the foregoing reasons, I concur in the dispositive part of the opinion
prepared by Mr. Justice Feria.
PERFECTO, J., concurring:
On October 21, 1944, petitioner William F. Peralta began to serve, in
the Muntinlupa Prison Camp, a sentence of life imprisonment imposed by the
Court of Special and Exclusive Criminal Jurisdiction, created by Ordinance
No. 7 issued by President Laurel of the Republic of the Philippines under the
Japanese regime, and now seeks a writ of habeas corpus in order that his
liberty may be restored to him, contending that said Ordinance No. 7 was null
and void ab initio because it was of a political complexion and its provisions
are violative of the fundamental laws of the Commonwealth of the Philippines.
Petitioner alleges that sometime in the month of September, 1943, he
joined the Constabulary forces as a private, against his will, and, before
joining it, he was for several times arrested and maltreated as
a guerilla member, he being then a minor only 17 years old, and that he was
prosecuted, not because he committed any crime, but because he joined
the guerilla organization, deserted the Constabulary forces, and followed
political and military activities in open allegiance to the Commonwealth
Government and the United States of America.
The Solicitor General, appearing in
behalf of respondent Director of Prisons, answered the petition agreeing that
the acts and proceedings taken and had before said Court of Special and
Exclusive Criminal Jurisdiction should be denied force and efficacy, and
therefore, recommended that the writ prayed for be granted.
At the hearing held on September 21 and 22, 1945, there appeared to
argue the First Assistant Solicitor General, impugning the validity of said
Ordinance No. 7, and the City Fiscal of Manila, as amicus curi, who
sustained the validity of the said Ordinance and the proceeding by
virtue of which petitioner was sentenced to life imprisonment.
I. ORDINANCE NO. 7 AND PROCESSES UNDER IT NULLIFIED BY THE
OCTOBER PROCLAMATION OF GENERAL MACARTHUR
On October 23, 1944, General of the Army Douglas MacArthur,
Commander in Chief of the Philippine-American Forces, which fought in
Bataan and later liberated the whole Philippines, as an aftermath of the
liberation, issued a proclamation declaring:
"1. That the Government of the Commonwealth of the Philippines
is, subject to the supreme authority of the Government of the United
States, the sole and only government having legal and valid jurisdiction
over the people in areas of the Philippines free of enemy occupation and
control;
"2. That the laws now existing on the statute books of the
Commonwealth of the Philippines and the regulations promulgated
pursuant thereto are in full force and effect and legally binding upon the
people in areas of the Philippines free of enemy occupation and control;
and
"3. That all laws, regulations and processes of any other
government of the Philippines than that of the said Commonwealth are
null and void and without legal effect in areas of the Philippines
free of enemy occupation and control."

It appears that Ordinance No. 7 in question has been issued under the
Japanese regime and that the judicial process under which petitioner has
been sentenced to life imprisonment, having been held in a court not
belonging to the Commonwealth of the Philippines but organized and
established under the authority of the enemy, became null and void and
without effect since October 23, 1944, by virtue of the above-quoted October
Proclamation of General MacArthur.
We have explained at length our position as to the effects of said
October Proclamation in our dissenting opinion in the case of Co Kim
Cham vs. Valdez Tan Keh and Dizon (G. R. No. L-5, p. 153, ante), and we
deem it unnecessary to repeat what we stated in said opinion.
It is fortunate that all the members of the Supreme Court arrived at a
unanimous conclusion as to the absolute nullity of the process under which
petitioner is now being held in prison.
The shocking character of the provisions of Ordinance No. 7 and the
processes held under it show once more how General MacArthur was
absolutely right and justified in issuing the October Proclamation.
There are indications that more processes held under the Japanese
regime will come to our knowledge, revealing strong grounds for their
annulment, justifying, like the process here in question, the wisdom of the
decision of General MacArthur in nullifying in a sweeping manner all judicial
processes held during enemy occupation.
The October Proclamation is, besides, in keeping with the following
official statement of the President of the United States:
"On the fourteenth of this month, a puppet government was set up
in the Philippine Islands with Jose P. Laurel, formerly a justice of the
Philippine Supreme Court, as 'president.' Jorge Vargas, formerly a
member of the Philippine commonwealth Cabinet and Benigno Aquino,
also formerly a member of that cabinet, were closely associated with
Laurel in this movement. The first act of the new puppet regime was to
sign a military alliance with Japan. The second act was a hypocritical
appeal for American sympathy which was made in fraud and deceit, and
was designed to confuse and mislead the Filipino people.
"I wish to make it clear that neither the former collaborationist
'Philippine Executive Commission' nor the present 'Philippine Republic'
has the recognition or sympathy of the Government of the United States.
. . .
"Our sympathy goes out to those who remain loyal to the United
States and the Commonwealth that great majority of the Filipino
people who have not been deceived by the promises of the enemy. . . .
"October 23, 1943.
"FRANKLIN DELANO ROOSEVELT
"President of the United States"

(From U.S. Naval War College, International Law Documents,
1943, pp. 93, 94.).
Putting aside the October Proclamation, by a mere perusal of the
ordinance in question, we will see immediately how such law and the
processes held under it are incompatible with the fundamental principles and
essential safeguards in criminal procedure, universally recognized in civilized
modern nations and how such ordinance and processes can only be justified
by a retrogressive and reactionary mentality developed under the social,
cultural, and political atmosphere of the era of darkness.
II. VIOLATION OF THE CONSTITUTIONAL GUARANTEE AGAINST
UNREASONABLE SEARCHES AND SEIZURES
Section 5 of Ordinance No. 7 provides that cases arising under it shall
follow the summary procedure provided in Act No. 65 of the Laurel Philippine
Republic, which, in turn, is the same as that established by Chapter
II of Executive Order NO. 157 of the Chairman of the Vargas Philippine
Executive Commission, dated May 18, 1943.
Under said procedure, "search warrants may be issued by the court or
by any prosecuting officer, authorizing peace officers to search for and seize
any articles or objects described in the warrant, including those which may be
regarded as evidence of an offense under this order even if such articles or
objects are not included among those described in section 2, Rule 122, of the
Rules of Court." This provision is repugnant to the Filipino sense of right in the
matter of warrants of search and seizure, senseof right which has been clearly
and definitely stereotyped in the following words of our fundamental law:
"The right of the people to be secure in their persons, houses,
papers, and effects against unreasonable searches and seizures shall
not be violated, and no warrants shall issue but upon probable cause, to
be determined by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched, and the persons or
things to be seized." (Art. III, sec. 1, No. 3, Constitution of the
Philippines.)
This constitutional provision is violated by the summary, unreasonable,
and arbitrary procedure provided under the authority of the ordinance in
question:.
(1) By authorizing "any prosecuting officer" to issue search warrants,
when under our Constitution such search warrants should be issued only by a
judge;
(2) By trespassing the limits established by section 2, Rule 122, of the
Rules of Court, considered as a necessary element to make the warrant
reasonable;
(3) By authorizing the search and seizure of articles or objects not
described in the warrant, which is the real meaning of the words "including
those which may be regarded as evidence of an offense under this
Ordinance."
III. DISCRIMINATORY AND INIQUITOUS SUSPENSION OF THE
WRIT OF HABEAS CORPUS
Section 7 of Ordinance No. 7 in question provides that "the
privileges of the writ of habeas corpus are hereby suspended with respect to
persons accused of, or under investigation for, any of the crimes and offenses
enumerated in sections 1 and 2 hereof."
This provision is also violative of one of the fundamental guarantees
established in the Constitution of the Philippines, which provides that the
writ of habeas corpus may be suspended only in case of "invasion,
insurrection, or rebellion" and only "when the public safety requires it."
"The privilege of the writ of habeas corpus shall not be suspended
except in cases of invasion, insurrection, or rebellion, when the public
safety requires it, in any of which events the same may be suspended
wherever during such period the necessity for such suspension shall
exist." (Art. III, sec. 1 No. 14, Constitution of the Philippines.)
Again, it is evident that the ordinance in question is repugnant to the
deep sense of right of our people. It is so, not only because it suspends the
privilege of the writof habeas corpus, without the circumstances which can
only justify said suspension, but because it flagrantly violates the fundamental
principle of equality before the law, by depriving the accused, in cases falling
under the ordinance in question, of the privilege of the writ of habeas corpus,
which is not denied to the accused in all other cases:
"No person shall be deprived of life, liberty, or property without
due process of law, nor shall any person be denied the equal
protection of the laws." (Art. III, sec. 1, No. 1, Constitution of the
Philippines.)
IV. VIOLATION OF THE CONSTITUTIONAL GUARANTEE AGAINST SELF-
INCRIMINATION
Under section 18 of Executive Order No. 157, above mentioned, "the
accused or his representative may be examined by the court, and with the
permission of the court, by the fiscal or other prosecuting officer as to any
matters favorable or unfavorable to him or his principal." (Italics ours.)
It is also provided that "statements made by the accused, his co-
accused, or the representative of the accused or a person acting in a similar
capacity, irrespective ofthe circumstances under which they were made, shall
be admissible in evidence if material to the issue." (Italics ours.)
Under section 21 of Executive Order No. 157, after arraignment and
plea, "the judge shall interrogate the accused . . . as to facts and
circumstances of the case in order to clarify the points in dispute and those
which are admitted."
In the same section it is also provided that "refusal of the accused to
answer any questions made or allowed by the court may be considered
unfavorable to him." (Italics ours.)
Under the same section the absence of an accused or of his
representative "shall not be a ground for interrupting the proceedings or
attacking the validity of the judgment."
From the foregoing, it appears:
(1) That the accused may be examined by the court or any prosecuting
officer as to any matters favorable or unfavorable to him;
(2) That the refusal of the accused to answer may be considered
unfavorable to him;
(3) That statements made by the accused, "irrespective of the
circumstances under which they were made" (that is , even third degree
procedure, or exacted through brutal kempei tortures), shall be admissible in
evidence;
(4) That not only the accused, but "his representative" (his lawyer,
whose personal security was jeopardized under the Japanese regime), may
be examined by the court or by the fiscal or other prosecuting officer, as if
said representative or attorney is facing the same criminal prosecution
instituted against his client;
(5) That the statement made by said representative or attorney,
although exacted under duress, intimidation, or torture, shall be admissible in
evidence;
(6) That statements made by any person acting in a similar capacity as
a representative of the accused which may be a relative or a friend or,
perhaps, just a mere acquaintance, or even an impostor who might pose as a
representative to assure the doom of the accused, "irrespective of the
circumstances under which they were made (that is, even if made in the
absence of the accused, or in the same circumstances under which masked
spies decreed the death of innocent citizens pointed by them during zoning
concentrations), shall be admissible in evidence;
(7) That trial shall proceed in the absence of the accused;
(8) That trial shall proceed in the absence of his attorney or other
representative.

It is evident that the procedure established violates the following
provisions of our fundamental code:
"In all criminal prosecutions the accused shall be presumed to be
innocent until the contrary is proved, and shall enjoy the right to be heard
by himself and counsel, to be informed of the nature and cause of the
accusation against him, to have a speedy and public trial, to meet the
witnesses face to face, and to have compulsory process to secure the
attendance of witnesses in his behalf." (Art. III, sec. 1, No. 17,
Constitution of the Philippines.)
"No person shall be compelled to be a witness against himself."
(Art. III, sec. 1, No. 18, Idem.)
The procedure is so revolting, so nauseating, and so opposed to human
nature, that it takes a real courage to keep our equanimity while we are
compelled to analyze it.
It is beyond our comprehension how a man, endowed with reason,
could devise such an execrable system of judicial procedure, which is but a
shameless mockery ofthe administration of justice.
We must be very careful to retain zealously the constitutional guarantee
against self-incrimination. We must not forge that constitutional guarantee
was acquired as a result of protest against all inquisitorial and third degree
procedures. We must not forge how, not very long ago, in the thirteen
colonies of America, alleged witches were burned at the stake, as a
means of compelling them to confess their fantastic compacts with the devil.
We must not forget now an institution created in the twelfth century was the
cause of so much tortures and sufferings, and that the terroristic menace of its
rakes was abolished in Spain, and therefore in the Philippines, only in 1834.
We must not forget that during normal times, under the twentieth
century lights, just before the last global war started, in the United
States of America and in the Philippines, denunciations of third degree
procedures employed by agents of the law was often heard. This very
Supreme Court, not only once, had to deal with cases where such tactics
were conclusively proved. Even today, among criminal cases we have under
consideration, there is evidence of confessions exacted through cruel and
brutal means.
No matter what merits can be found, from the theoretical point of view,
in the arguments of those who are championing the suppression of the
constitutional guarantee against self-incrimination, the undeniable
reality of human experience shows conclusively the absolute need of such
guarantee if justice must be served. Even with the existence of such
guarantee, there are officers of the law who cannot resist temptation of using
their power to compel, through third degree methods, innocent or guilty
persons to admit involuntarily real or imaginary offenses. Let us allow
changes tending to nullify the protection against self-incrimination, and no
man, however innocent he may be, shall be secure in his person, in his
liberty, in his honor, in his life.
V. THE FUNDAMENTAL RIGHT OF APPEAL TRAMPLED UPON
In section 6 of Ordinance No. 7, it is provided that "the decision of the
special courts herein created shall be final except where the penalty imposed
is death, in which case the records of the particular case shall be elevated en
consulta to a special division of the Supreme Court composed of three
members to be designated by the President of the Republic of the
Philippines."
This provision is a clear violation of the fundamental right of appeal,
constitutionally guaranteed to all accused in the Philippines.
Under the Constitution of the Philippines, all accused are entitled to
appeal to the Supreme Court:
(1) In all cases in which the constitutionality or validity of any treaty, law,
ordinance, or executive order or regulations is in question. (Art. VIII, sec. 2,
No. 1, Constitutionof the Philippines.)
(2) In all cases involving the legality of any tax, impost, assessment, or
toll, or any penalty imposed in relation thereto. (Art. VIII, sec. 2, No. 2, Idem.)
(3) In all cases in which the jurisdiction of any trial courts is in issue.
(Art. VIII, sec. 2, No. 3, Idem.)
(4) In all criminal cases in which the penalty imposed is death or life
imprisonment. (Art. VIII, sec. 2, No. 4, Idem.)
(5) In all cases in which an error or question of law is involved. (Art. VIII,
sec. 2, No. 5, Idem.)
Before the adoption of the Constitution of the Philippines, it was the
prevailing theory in judicial decisions that the right of appeal is not a
fundamental one, but it is a mere privilege or mere statutory grant.
The drafters of our Constitution, taught by the unerring
lessons of human experience, came to the conclusion that mistake is
one of the most irretrievable human weaknesses.
The drafters of our Constitution, therefore, considered it necessary to
establish constitutional guarantees to reduce to its minimum the
effects of such innate human weakness by providing that appeal to the
highest tribunal of the land may be enjoyed by any accused who, under the
specific provisions of the Constitution, believed himself to be the victim of a
wrong in any inferior court.
The fact that the provisions of section 2, of Article VIII, of the
Constitution, instead of stating that the accused shall not be denied of the
right of appeal in the cases mentioned therein, provides that the Supreme
Court may not be deprived of its jurisdiction to review, revise, reverse, modify,
or affirm on appeal, certiorari, or writ oferror as the law or the rules of court
may provide, final judgments and decrees of inferior courts, in the specified
cases, does not impair nor diminish the fundamental character of the
right of appeal of the accused to the Supreme Court.
The provisions of section 2, of Article VIII, of the Constitution, have
been enacted by our Constitutional Convention, not for the benefit of the
Supreme Court, but for the benefit and well- being of the people.
In fact, the Supreme Court is just one of the instrumentalities created by
the Constitution in the service of the people. The Supreme Court is not an
entity or institution whose rights and privileges must be constitutionally
guaranteed. It is only a means. It is one of the means considered necessary
by our Constitution to better serve the supreme interest of the people.
As a matter of fact, the Supreme Court of the United States itself
declared that the elimination of said tribunal is not incompatible with the
existence of a governmentof laws. In a case of denaturalization wherein the
Government of the United States sought to deprive a person of his American
citizenship, on the ground that the 1928 platform of the Communist
Party of the United States, to which the respondent belonged, advocated the
abolition of the Supreme Court, of the Senate and of the veto power of the
President, and replacement of congressional districts with
"councils of workers" in which legislative and executive powers would be
united, the Federal Supreme Court declared:
"These would indeed be significant changes in our governmental
structure changes which it is safe to say are not desired by the
majority of the people in this country but whatever our personal views,
as judges we cannot say that a person who advocates their adoption
through peaceful and constitutional means is not in fact attached to the
Constitution those institutions are not enumerated as necessary in the
government's test of 'general political philosophy' and it is conceivable
that 'orderly liberty' could be maintained without them. The Senate has
not gone free of criticism and one object of the Seventeenth Amendment
was to make it more responsive to the popular will. The unicameral
legislature is not unknown in the country. It is true that this Court has
played a large part in the unfolding of the constitutional plan (sometimes
too much so in the opinion of some observers), but we would be
arrogant indeed if we presume that a government of laws, with protection
for minority groups, would be impossible without it. Like other
agencies of government, this Court at various times in its existence has
not escaped the shafts of critics whose sincerity and attachment to the
Constitution is beyond question critics who have accused
it of assuming functions of judicial review not intended to be conferred
upon it, or of abusing those functions to thwart the popular will, and who
have advocated various remedies taking a wide range."
(Schneiderman vs. United States of America, June 21, 1943.
VI. ABRIDGMENT OF THE CONSTITUTIONAL GUARANTEE OF EQUAL
PROTECTION OF THE LAWS
The constitutional guarantee of equal protection of the laws is evidently
abridged in the summary procedure in criminal cases under Ordinance No. 7:
(1) By the fact that the accused therein are victims of search warrants
specially provided for them, where the guarantees against unreasonableness
in search warrants issued against other accused are specially eliminated.
(2) By depriving the accused, under Ordinance No. 7, the
privilege of the writ of habeas corpus enjoyed by the accused in other cases.
(3) By depriving the accused, under Ordinance No. 7, of the
fundamental right of appeal in all cases, except when sentence of death is
imposed.
(4) By discriminating against the accused, under Ordinance No. 7,
where the right of appeal is retained for them, that is, in cases where the
sentence imposed is death, by entrusting the power to revise said sentence to
a small minority of the Supreme Court, under the Japanese regime, and a
minority of three justices to be specially called out by the President of the
Laurel Philippine Republic, undoubtedly with the evident purpose of assuring
the confirmation of the conviction of the accused, and to make the
appeal en consulta just an empty gesture to make the situation of the accused
more pitiful by lengthening his days of agony.
(5) By placing the accused, in the cases in question, under the
sword of Damocles of an unfavorable presumption, should he refuse to
answer any question that the court or any prosecuting officer might propound
to him.

Under our constitution, no one shall be deprived of the "equal
protection of the laws." (Art. III, sec. 1, No. 1, Constitution of the Philippines.)
VII. THE PRESUMPTION OF INNOCENCE OF THE ACCUSED IN ALL
CRIMINAL PROSECUTION VIOLATED
Since the American flag began to fly over our soil, the fundamental
guarantee that in all criminal prosecution the accused shall be presumed
innocent until the contrary is proved beyond reasonable doubt, has been
implanted in our country to remain forever.
That guarantee was consecrated in our Constitution:
"In all criminal prosecutions the accused shall be presumed to be
innocent until the contrary is proved, and shall enjoy the right to be heard
by himself and counsel, to be informed of the nature and cause of the
accusation against him, to have a speedy and public trial, to meet the
witnesses face to face, and to have compulsory process to secure the
attendance of witnesses in his behalf." (Art. III, sec. 1, No. 17,
Constitution of the Philippines.)
This guarantee is undoubtedly violated when, in the summary
procedure established by Ordinance No. 7, it is provided that the refusal of the
accused to answer any question, propounded by the court or any prosecuting
officer, " may raise unfavorable presumption against him."
If we have to keep democracy in our country, we must be vigilant in
upholding the constitutional principle that all persons shall be presumed to be
innocent until the contrary is proved beyond all reasonable doubt.
This principle is the opposite of that prevailing under autocracies, or
under facist or totalitarian regimes. During the Japanese occupation, all
persons who might fall under the suspicion of any Japanese of their spies and
lackeys, were presumed to be guilty of any imaginary crime until they were
able to convince their victimizers of the contrary, beyond any reasonable
doubt. Even then, they were submitted to preventive tortures and long
months of imprisonment, just in case they might think later ofcommitting any
offense against the Japanese or their collaborators.
VIII. ORDINANCE NO. 7 VIOLATED THE HAGUE CONVENTION OF 1899
In the convention concerning the laws and customs of war on land,
adopted by the Hague in 1899, it is provided that the military occupant must
respect the laws in force in the occupied country, unless absolutely prevented.
(Arts. 42 and 43.)
This provision of the Convention has been flagrantly violated when,
under the enemy occupation, the Laurel Philippine Republic enacted
Ordinance No. 7 which suspended our laws, including the fundamental one,
by substantially subverting the judicial procedures in the special criminal
cases instituted under said ordinance.
For this reason, said ordinance, being violative of international law, was
null and void ab initio.
Under international law, under the most elemental principles of law, the
legitimate government, once restored to its own territory, after expelling the
enemy invader, enjoys the absolute freedom of not recognizing or of nullifying
any and all acts of the invader, including those internationally legal ones. The
situation is exactly the same as that of the owner of a house who can do
anything in it that pleases him, after expelling the bandit who was able to
usurp its possession for a while.
General MacArthur exercised correctly that power by the sweeping
nullification decreed in his October Proclamation.
But even without the October Proclamation, the judicial process
maybe it is better to say injudicial process which resulted in the
imprisonment of petitioner, must be shorn of all effects because it had taken
place under the authority of an ordinance which was null and void ab initio.
IX. THE DECISION CONVICTING THE PETITIONER HAVING BEEN
RENDERED UNDER FOREIGN AUTHORITY IS UNENFORCEABLE
The decision by which petitioner William F. Peralta was convicted and is
being confined for life having been rendered by a tribunal created, functioning,
and acting under the authority of a foreign State, the Emperor of the Imperial
Government of Japan, is unenforceable.
It has, therefore, the nature of a foreign decision or judgment. For that
reason, it is unenforceable within the Philippines or under the Commonwealth,
as we have shown in our opinion in the case of Co Kim Cham vs. Valdez Tan
Keh and Dizon (G.R. No. L-5, p. 153, ante).
Said decision, having been rendered under Ordinance No. 7, which was
null and void ab initio, carries the same vice as the ordinance under which it
was rendered.
But even admitting arguendo that said decision is valid, because it is so
under international law, and is not included in the nullification decreed by
General Douglas MacArthur, still it cannot be enforced, being a foreign
decision. A foreign decision can only be enforced through the institution of an
action before our tribunals. Even decisions of a court of the United States
or of any of its States territories can be enforced in the Philippines only by the
institution of an action or special proceeding before our own courts. This
theory is confirmed by sections 47 and 48, Rule 39, of the Rules of Court,
which read:
"SEC. 47. Effect of record of a court of the United States. The
effect of a judicial record of a court of the United States or of a
court of one of the States or territories of the United States, is the same
in the Philippines as in the United States, or in the State or territory
where it was made, except that it can only be enforced here by an action
or special proceeding, and except, also, that the authority of a guardian,
or executor, or administrator does not extend beyond the
jurisdiction of the Government under which he was invested with his
authority.
SEC. 48. Effect of foreign judgments. The effect of a
judgment of a tribunal of a foreign country, having jurisdiction to
pronounce the judgment, is as follows:
"(a) In case of a judgment against a specific thing, the judgment is
conclusive upon the title to the thing;
"(b) In case of a judgment against a person, the judgment is
presumptive evidence of a right as between the parties and their
successors in interest by a subsequent title; but the judgment may be
repelled by evidence of a want of jurisdiction, want of notice to the party,
collusion, fraud, or clear mistake of law or fact."
X. THE STUNNING FACTS REVEALED IN THE
REPORT OF THE DIRECTOR OF PRISONS
At the hearing of this case, respondent Director of Prisons was required
to submit statistical data concerning the number of prisoners and the various
crimes for which they were convicted by the Court of Special and Exclusive
Criminal Jurisdiction.
In submitting said statistical data, the Solicitor General, as counsel for
respondent, calls our attention to the fact that, out of the
92 prisoners committed by said courts to the Bureau of Prisons for
confinement, fifty-five (55), that is more than one-half, were convicted of illegal
possession of firearms, and that only 3 are now actually in confinement
serving sentences, among them the petitioner in this proceeding, thus
dissipating the unfounded fear entertained by the City Fiscal of Manila, to the
effect that a pronouncement by this Supreme Tribunal that the
sentences of the courts in question are null and void, will signify the
release of hundreds of criminals, whose liberty and mixing with society will
endanger public peace and order.
Of the other two remaining prisoners serving sentence, one has been
committed for evasion of service of sentence, and the other for illegal
possession of firearms.
Of the 55 prisoners convicted for illegal possession of firearms, 25 died,
23 were released, and 6 escaped, and this is the reason why only one
remains in confinement.
It is striking that so many prisoners died, 25 of those convicted for
illegal possession of firearms, that is, almost 50% of them, and 33 of the
total of 94 prisonerscommitted, or more than one-third of them. This unusual
and shocking percentage of mortality is worth inquiring into and, certainly,
cannot be counted very favorably to judicial proceedings which eventually
lead to such wholesale death, if not outright massacre.
The fact that a big number of the prisoners, 21 of them, were able to
escape, was not explained to us. Is it reasonable to surmise, from the ruthless
cruelty of the proceedings and of the penalties imposed, which exacted from
the mouth of the First Assistant Solicitor General, who appeared to argue the
case in behalf of the respondent, the adjective "ferocious"' that the wardens
themselves, moved by pity, directly or indirectly helped the escape?
More than one-third of the prisoners committed by the said courts in
confinement to the Bureau of Prisons, that is, 33 of them died. May we ask if
they died because they were executed? Of those who died, one was
convicted of profiteering in rice, one of robbery, one of kidnapping of minor,
one of violation of certain sections of Act No. 66, four of crimes against public
order, and 25 of possession of firearms. If all of them were executed by
virtue of sentences rendered by the courts in question, that fact does not
speak very highly of their proceedings. If the accused died by natural death,
there must be something physically or morally fatal in said proceedings.
If a tree must be judged by the fruits it bears, how shall we judge
proceedings so deadly, so fatal, so wantonly inhuman as the proceedings had
in the special courts in question?
The City Fiscal of Manila exerted great efforts to show that the fact that
in the proceedings in question "the refusal of the accused to answer any
question made or allowed by the court may be considered unfavorable to
him," does not violate the constitutional guarantee against self-incrimination.
He even goes to the extent ofmaintaining the theory that such constitutional
guarantee is not essential for the protection of the substantial rights of an
accused.
His argument centered on the alleged freedom of the accused to refuse
or not to refuse to answer any question made or allowed by the court, alleging
that, if the accused chooses to refuse to answer, the court cannot compel him
to answer under menace of punishment for contempt or through any other
coercive or minatory measures.

The City Fiscal seems to labor under the belief that the fact the
silence of the accused "may be considered unfavorable to him," is of no
consequence at all.
Such belief can logically be entertained alone by ignoring completely
the lessons of experience in human conduct.
If the refusal to answer can be considered unfavorably to the accused,
is not that the same as placing him on the hard predicament of choosing
between testifying self-incriminatingly and risking the fatal effects of a legal
presumption of guilt? Is not that the same as placing him between the two
steel cages of a dilemma: self- incrimination or presumption of guilt? Is not
that the same as placing him between Scylla and Charybdis, between a
dagger and a wall? Either way, he will always find himself under the
inexorable sword of Damocles of sure punishment, whether he testifies or
refuses to testify.
It is not impossible to open a debate upon the abstract question
whether the constitutional guarantee against self-incrimination should or
should not remain. But the value of such a moot question, for purposes of this
case, is nil.
The constitutional guarantee had to be adopted as a protest against
inquisitorial method of the past, when accused and suspects were submitted
to the most brutal torture to compel them to confess real or imaginary crimes.
That past is not far away. It seems that we are still smelling the
stench of human flesh burned in the stakes, where suspected witches
suffered iniquitous death.
There is no doubt that the procedure in question shows the
purpose of pandering to the most flagitious doctrines in criminal proceedings.
The transgressions of the bill of rights in all its phases cannot be hidden even
to a chela in constitutional law. It is the very negation of the
administration of justice. Such procedure has absolutely no place in the
framework of our judicial system. We will feel mere whifflers in our professed
convictions, principles, and creed, if we should permit ourselves to fall into the
weakness of abetting it even for a moment, which could only happen once the
flambeau of reason has ceased completely to burn. No one but the truckling
lackeys of the arrogant enemy could have the servility of applauding the
implantation of the criminal procedure in question.
All arguments and dissertations are useless to conceal the real fact.
Behind and under said criminal process stealthily crawls and trundles the
Nippon psychosis, like a cobra with fangs overflowing with venom. To ferret it
out from the hole where it lurks, waiting for its victims, and crush its head with
one hammer blow, is an imperative measure of national defense.
XI. THE PETITIONER IS ENTITLED ,AS A MATTER OF ABSOLUTE RIGHT,
TO IMMEDIATE RELEASE.
After showing the absolute nullity of the judicial process under which
petitioner has been convicted to suffer the penalty of life imprisonment, the
inevitable consequence is that he is entitled, as a matter of absolute right, to
be immediately released, so that he can once again enjoy a life of freedom,
which is the natural boon to law- abiding residents of our country,
and of which he was unjustly deprived through means most abhorrent to
human conscience.
We must not hesitate for one moment to do our duty in this case. The
sooner we comply with it, the better. The process and judgment under which
petitioner has been convicted and is now undergoing an unjust imprisonment,
is one of the hateful vestiges left in our country by the moral savagery of a
people spiritually perverted and debased. The seriousness of this matter
cannot be viewed with insouciance.
We must not lose time to wipe out such vestiges if we must protect
ourselves against their poisonous effects in our political, social and cultural
patrimony. We must erase those vestiges if we want to keep immune from all
germs of decay the democratic institutions which are the pride of our people
and country, under which we are enjoying the blessings of freedom and with
which we hope to assure the well-being and happiness of the unending
generations who will succeed us in the enjoyment of the treasures
accumulated by a bountiful nature in this Pearl of the Orient.
If we allow such vestiges to remain we are afraid that some historian
may write about Philippine democracy, Philippine race, and Philippine culture,
what, on ancient art, Hegel said in the "Phenomenology of the Spirit",
according to Kohler, the greatest work of genius that the nineteenth century
has produced:
The statutes set up are corpses in stone, whence the animating
soul has flown; while the hymns of praise are words from which all belief
has gone. The tablesof the gods are bereft of spiritual food and drink,
and from his game sand festivals, man no more receives the joyful
sense of his unity with the Divine Being. The works of the muse lack the
force and energy of the Spirit which derived the certainty and
assurance of itself just from the crushing ruin of gods and men. They are
themselves now just what they are for us beautiful fruit broken off the
tree, a kindly fate has passed on those works to us, as a maiden might
offer such fruit off a tree. It is not their actual life as they exist, that is
given us, not the tree that bore them, not the earth and the elements,
which constituted their substance, nor the climate that determined their
constitutive character, nor the change of seasons which controlled the
process of their growth. So, too, it is not their living world that fate
preserves and gives us with those works of ancient art, not the spring
and summer of that ethical life in which they bloomed and ripened, but
the veiled remembrance alone of this reality."
Our sense of national self-preservation compels us, as an imperative
duty, not only to restore immediately the petitioner to his personal liberty, but,
by all possible means, to obliterate even the memory of the inquisitorial
summary procedure depicted in the present case.
Such procedure exhibits either inversion, retroversion, subversion, or
perversion of elemental human concepts. It ignores completely and debases
the high purposesof a judicial procedure. It represents a hylistic ideology
which proclaims the supremacy of the state force over fundamental human
rights. We must never allow the neck ofour people to be haltered by the lethal
string of that ideology. It is a virus that must be eliminated before it produces
the logical disaster. Such ideology is a cancerous excrescence that must be
sheared, completely extirpated, from the live tissues of our body politic, if the
same must be saved.
We cannot understand how any one can justify the summary process in
question under the principles embodied in our Constitution. To profess
attachment to those principles and, at the same time, to accept and justify
such kind of criminal miscarriage of justice, is just sheer hypocrisy. It is a
repetition of what Seneca did when, after preaching moral virtues, justified
without any compunction the act of Nero, the sanguinary Roman
Emperor, of murdering in cold blood his own mother. It is reproducing the
crooked mentality of Torquemada, who, upon the pretext of combating and
persecuting heresy to save souls from hell, conceived the diabolical
idea of condemning their victims to an advanced version of hell in this life, and
among those who suffered under the same spirit of intolerance and bigotry
which was its very essence are counted some of the greatest human
characters, such as Galileo, Giordano Bruno, and Girolamo Savonarola. That
procedure might find justification in the thick heads of the Avars. Huns,
Vandals, and Teutons, or in the stratified mentality of Japanese cullions, but
not in a healthy mind of a cultured person of modern times. To allow any
vestige ofsuch procedure to remain is tantamount to reviving the situation
during which our citizens endured sleepless nights in constant fear of the
hobnail terror stalking in the darkness, when their personal security and their
life were hanging by the thin fibre of chance.
We wish a way could be found to free completely our people of the
sense of shame, which they cannot help feeling, engendered by
members of our race who justified such abhorrent summary procedure and
allowed themselves to become a party to the execution of a scheme only
acceptable to the undeveloped mentalities ofthe dark ages. It is a shame that
makes our blood boil when we think that countrymen of Father
Gomez, of Rizal, of Mabini, could accept procedures representing the brutal
ideology which is the very opposite of the humane, lofty, and dignified
ideology that placed said heroes and martyrs among the purest and noblest
specimens that humanity produced in all countries, in all time, and for all eons
and light years to come.
It is with joy and pride that we agree with all our brethren in
unanimously granting petitioner the redress he seeks in his petition.
HILADO, J., concurring:
I concur in the result, as well as in the reasons stated in the majority
opinion not inconsistent with the views expressed in my dissenting opinion in
G.R. No. L-5, Co Kim Cham vs. Valdez Tan Keh and Dizon (p. 99, ante).
However, I would additionally base my conclusion upon broader
grounds.
Firstly, I reiterate here by reference the arguments advanced in said
dissenting opinion in additional support of the conclusion that the
writ of mandamus herein sought should be granted. Secondly, the importance
and transcendence of the legal principles involved justify further elaboration.
From the allegations of the petition herein, it can be deduced that the
petitioner William F. Peralta was a "guerrillero" when he was arrested, tried
and convicted; and that he had never voluntarily submitted to the Japanese
forces in his civil capacity.
No attempt is made in the Solicitor General's answer to controvert the
facts alleged in the petition from which the foregoing deduction flows, and
from the record nothing appears which may tend to gainsay them. Even when
he was forced temporarily to join the Constabulary, which had been organized
under orders of the Japanese Army in the Philippines, he did so against his
will.

Even granting for the sake of argument, and laying aside for the
moment the reasons to the contrary set forth in my aforesaid dissenting
opinion, that the rules ofInternational Law regarding the power of a belligerent
army of occupation to establish a provisional government in an occupied
enemy territory, are still binding upon the United States and the
Commonwealth of the Philippines, yet such rules would not be of any avail to
bind the herein petitioner by the laws, regulations, processes and other
acts of the so-called "Republic of the Philippines", under and by
virtue of which said petitioner has been convicted to life imprisonment by the
Court of Special and Exclusive Criminal Jurisdiction of Manila in Criminal
Case No. 66 thereof.
If we analyze the different adjudications and treatises which have been
cited in support of the validity or binding force of the acts of such provisional
governments, which have been variously called de facto governments, or
governments of paramount force, with a view to finding the real ground and
philosophical justification for the doctrine therein announced, we will see that
reason and that justification are made to consist in the submission of the
inhabitants upon whom the said acts have been held to be of obligatory or
binding force, to the army of occupation. Thus, to cite just a few typical
examples, we quote the following excerpts from three leading cases decided
by the Supreme Court of the United States:
Excerpts from Thorington vs. Smith (8 Wall. [U.S.], 1; 19 Law. ed., 361):
"That while it (government of paramount force) exists, it must
necessarily be obeyed in civil matters by private citizens who, by
acts of obedience, rendered insubmission to such force, do not become
responsible, as wrongdoers, for those acts, though not warranted by the
laws of the rightful government" (p. 363; italics ours).
" 'The authority of the United States over the territory was
suspended, and the laws of the United States could no longer be
rightfully enforced there, or be obligatory upon the inhabitants
who remained and submitted to the conqueror.' " (P. 364; italics ours.)
Excerpts from Fleming vs. Page (9 Howard [U.S.], 603; 13 Law. ed.,
276):
"While it (Tampico) was occupied by our troops, they were in an
enemy's country, and not in their own; the inhabitants were still
foreigners and enemies, and owed to the United States nothing more
than the submission and obedience, sometimes called temporary
allegiance, which is due from a conquered enemy, when
he surrenders to a force which he is unable to resist." (P. 281; italics
ours.)
Excerpts from the United States vs. Rice (4 Wheat. [U.S.], 246; 4 Law.
ed., 562):
"The sovereignty of the United States over the territory
was, of course, suspended, and the laws of the United States could no
longer be rightfully enforced there, or be obligatory upon the inhabitants
who remained and submitted to the conquerors." (P. 564; italics ours.)
It results from the above quoted pronouncements of the Supreme
Court of the United States that the laws, regulations, processes and other
acts of the government that the occupying belligerent establishes are made
binding only and precisely upon those inhabitants from whom obedience
could be effectively exacted, namely, those who remain within the effective
reach of the occupying forces and submit to them. This is plain common
sense. Those who conceived and developed the doctrine could not logically
have thought of the army of occupation setting upon a civil government for
those who still continued resistance. As to them, further military operations
would be necessary to reduce to submission, before one could think of civilly
governing them.
In the Philippines, during the occupation by the Japanese of Manila and
certain other portions of the Archipelago, the overwhelming majority of the
people never submitted to the Japanese invaders, and never recognized any
legality in the invasion of their country, and to the very date of liberation
refused to accept the alleged protection or benefits of the puppet
governments of the "Philippine Executive Commission" and the
"Republic of the Philippines." This majority of our people lived in the
provinces, in the farms, hills and other places beyond the effective
reach of the Japanese military garrisons. Only a small minority submitted to
the invaders for various reasons, such as their having been caught in Manila
or other parts of the Islands occupying government positions, or residing
therein without adequate facilities for escaping from or evading said invaders,
reasons of ill health, disabling them from living the hard life of the mountains,
hills, or country places, and the like.
To have bound those of our people who constituted the great majority
who never submitted to the Japanese oppressors, by the laws, regulations,
processes and other acts of those two puppet governments, would not only
have been utterly unjust and downright illegal, but would have placed them in
the absurd and impossible condition of being simultaneously submitted to two
mutually hostile governments, with their respective constitutional and
legislative enactments and institutions on the one hand bound to continue
owing allegiance to the United States and the Commonwealth Government,
and, on the other, to owe allegiance, if only temporary, to Japan. Among them
we find the petitioner William F. Peralta. The surrender of the Fil-American
forces in Bataan and Corregidor did not matter so far as this was concerned.
Much less did that surrender obligate all the civil population to submit to the
Japanese, and obey all their future dictations. If it did, President Roosevelt
and President Osmea would not have so heartily commended the Philippine
resistance movement and so enthusiastically extolled the firm stand of those
who participated therein, in the former's message of October 23, 1943, and in
the latter's speech of February 27, 1945, cited in the writer's above mentioned
dissenting opinion. If these historic utterances should seem incompatible with
any provision of the Hague Convention, we should understand from them that
both Presidents must have considered such provision as no longer applicable
to, or binding upon, the United States and the Philippines. Who knows but that
their attitude was based upon the renunciation of war as an
instrument of national policy by their respective peoples, which renunciation
necessarily includes all the "rights" of "powers" which may be claimed to be
derived from war so employed? Or else, upon the ground that such provision
does not support the wrongful acts of Japan in the Philippines?
Another reason advanced to justify the creation of a provisional civil
government, with its courts and other departments, in occupied enemy
territory, is the alleged convenience of the civil population. It can immediately
be asserted in reply that the convenience of the abovementioned
overwhelming of our people, far from requiring the establishment of such a
government, was in the very nature of things positively opposed thereto. They
not only did not need the supposed benefits of such a government, but they
actually reputed them as inimical to the larger interest of the very ideology and
cause for which they were continuing their resistance to those who could
extend here the brutal power and pernicious influence of the now exploded
"Greater East Asia Co-Prosperity Sphere." They suffered, yes, and suffered
much but they placed that ideology and that cause high above their private
comfort. Let us not penalize them for it. If this government is democratic, and
when it comes to a questionof convenience, whose will and whose
convenience should prevail, that of the majority or that of the minority? Are we
going to force those free citizens of this free country to accept the alleged
benefits and assume the burdens of a government they have never consented
to own?
I am, furthermore, of opinion that there is another important
consideration which argues against the recognition of the said government as
a de facto government or government of paramount force during the
Japaneses occupation of the Philippine Islands. Japan, in starting and
prosecuting this war against the United States and her allies by breaking the
most vital rules of civilized warfare as prescribed by International Law, must
be deemed to have forfeited the right to invoke that law in so far as specific
provisions thereof would favor her or her acts. Japan in treacherously
attacking Pearl Harbor and the Philippines, successively on December 7 and
8, 1941, violated the rule providing for the necessity of declaring war as
established at the Hague Conference of 1907 (Lawrence,
Principles of International Law, 7th ed., pp. 321-322, 325); she has infringed
the rule requiring that war prisoners be cared for and treated with humanity
(Ibid, p. 377); the rule imposing the obligation to properly tend the sick and
wounded (Ibid, 384), the rule interdicting bombing of open and defenseless
cities (Ibid, 522, 523) when she bombed Manila after it had been declared an
open city and all its military defenses had been removed; the rule exempting
noncombatants from personal injury (Ibid, 397) her violations of one or the
other of which were matters of daily occurrence, one might say, during her
three and a half years of tyranny and oppression in this country, and were
climaxed by the ignominious and indescribable atrocitiesof the mass
massacre of innocent civilians during the battle for Manila. In the
interpretation of doubtful provisions of International Law, Doctor Lawrence, in
his work cited above, has the following to say:
". . . If a point of Municipal Law is doubtful, men resort to supreme
court for a decision, or to a supreme legislature for an interpreting
statute; but if a point ofInternational Law is doubtful, they can resort only
to general reasoning for a convincing argument, unless, indeed, they
settle the question by blows. And International Law in many of its details
is peculiarly liable to disputes and doubts, because it is based on usage
and opinion. He who in such a case bases his reasoning on high
considerations of morality may succeed in resolving the doubt in
accordance with humanity and justice." (Pp. 12, 13.)

It would seem that to deny Japan the benefits, because she has
refused to carry the burdens of the law, is to base our reasoning "on high
considerations of morality", and to resolve any doubt, if doubt there be, as to
the point in question, "in accordance with humanity and justice." In other
words (even if we applied said rules to the instant case), Japan, under the
circumstances of this case, could not be heard to say that the government
which she established here was a de facto government, or a
governmentof paramount force, as in the cases where such a government
was deemed to exist.
In addition to what has been said above, let us see if the Japanese-
sponsored "Republic of the Philippines" did not introduce such fundamental
and drastic changes in the political organization of this country, as it existed
upon the date of the Japanese invasion, as to vitiate with invalidity the
acts of all its departments, executive, judicial and legislative. To begin with,
the Commonwealth Constitution was completely overthrown. It was replaced
by the so-called constitution of the "Republic." A casual comparisonof these
two instruments cannot fail to reveal a most revolutionary
transformation of the political organization of the country. While under the
Commonwealth Constitution the retention of American sovereignty over the
Philippines is expressly recognized, for the purposes specified in the
ordinance appended thereto, in the very preamble ofthe constitution of the
"Republic" the "independence" of the Philippines is proclaimed. While under
the Commonwealth Constitution the President and Vice-President are elected
"by direct vote of the people" Art. VII, sec. 2), under the constitution of the
"Republic" the President (no Vice-President is provided for) was elected "by
majority ofall the members of the National Assembly" (Art. II, sec. 2). While
under the Commonwealth Constitution the legislative power is vested in a
bicameral Congress with a Senate and a House of Representatives (Art. VI,
sec. 1), under the constitution of the "Republic" that power was vested in a
unicameral National Assembly (Art. III, sec. 1). While under the
Commonwealth Constitution the Senators are chosen at large by the qualified
electors of the Philippines (Art. VI, sec. 2) and the Representatives by the
qualified electors in the respective districts (Art. VI, sec. 5), under the
constitution of the "Republic" the National Assembly was composed of the
provincial governors and city mayors as members ex-oficio, and of delegates
elected every three years, one from each and every province and chartered
city (Art. III, sec. 2). While under the Commonwealth Constitution, respecting
the Judicial Department, the members of the Supreme Court and all
judges of inferior courts are appointed by the President with the consent of the
Commission on Appointments of the Congress (Art. VIII, sec. 5), under the
constitution of the "Republic" the members of the Supreme Court were
appointed by the President with the advice of the Cabinet, and all
judges of inferior courts, by the President with the advice of the Supreme
Court (Art. IV, sec. 4).
These changes and innovations can be multiplied many times, but the
foregoing will suffice for our purpose.
It has been said constantly in this discussion that political acts, or
acts of a political complexion of a de facto government or a
government of paramount force, are the only ones vitiated with
nullity. Of course, I disagree with those who so hold. But even by this test the
"Republic" or, which is the same, the Imperial Japanese Forces which gave
it birth in thus introducing such positive changes in the organization of this
country or suspending the working of that already in existence, executed a
political act so fundamental and basic in nature and operation that all the
subsequent acts of the new government which of course had to be based
thereon, inevitably had to be contaminated by the same vitiating defect.
"Thus judicial acts done under his control, when they are not of a
political complexion, administrative acts so done, to the extent that they
take effect during the continuance of his control, and the various acts
done during the same time by private persons under the
sanction of municipal law, remain good. . . . Political acts on the other
hand fall through as of course, whether they introduce any positive
change into the organization of the country, or whether they
only suspend the working of that already in existence. . . ." (Hall,
International Law, 6th ed., p. 483; italics ours.)
Finally, upon close scrutiny, we will find that all of the de
facto governments or governments of paramount force which have been cited
in all this discussion were at the same time bona fide governments. The
British established such a government in Castine, and ran it as a purely British
organization. The Americans established another such government in
Tampico, and ran it as an American organization. The confederate States
established a like government in the seceding States, and ran it as the
Government of the Confederacy. They were all frank, sincere, and honest in
theirs deeds as well as in their words. But what happened in this country
during the Japanese occupation? When the "Republic of the Philippines" was
established on October 14, 1943, under duress exerted by the Japanese
Army, did the Japanese openly, frankly, and sincerely say that government
was being established under their orders and was to be run subject to their
direction and control? Far from it! They employed all the means they could
conceive to deceive the Filipino people and the outside world that they had
given the Filipinos their independence, and that the Filipino people had
drafted their own constitution and established that "Republic" thereunder. But
behind the curtain, from beginning to end, there was the Imperial Japanese
Army giving orders and instructions and otherwise directing and controlling
the activities of what really was their creature for the furtherance of their war
aims. I cannot believe that those who conceived and developed the
doctrine of de facto government of government of paramount force, ever
intended to include therein such a counterfeit organization as the Japanese
contrived here an organization which, like its counterparts in Manchukuo,
Nanking, Burma, and Vichy, has been appropriately called "puppet" by the
civilized governments of the world.
||| (Peralta v. Director of Prisons, G.R. No. L-49, November 12, 1945)

SECOND DIVISION
[G.R. No. 86773. February 14, 1992.]
SOUTHEAST ASIAN FISHERIES DEVELOPMENT CENTER-
AQUACULTURE DEPARTMENT (SEAFDEC-AQD), DR. FLOR
LACANILAO (CHIEF), RUFIL CUEVAS (HEAD,
ADMINISTRATIVE DIV.), BEN DELOS REYES (FINANCE
OFFICER), petitioners, vs. NATIONAL LABOR RELATIONS
COMMISSION AND JUVENAL LAZAGA, respondents.
Ramon Encarnacion for petitioners.
Caesar T. Corpus for private respondent.
SYLLABUS
1.LABOR AND SOCIAL LEGISLATION; NATIONAL LABOR RELATIONS
COMMISSION; WITHOUT JURISDICTION
OVER SOUTHEAST ASIAN FISHERIES DEVELOPMENT CENTER-
AQUACULTURE DEPARTMENT (SEAFDEC-AQD).
Petitioner Southeast Asian Fisheries Development Center-Aquaculture
Department (SEAFDEC-AQD) is an international agency beyond the jurisdiction
of public respondent NLRC.
2.PUBLIC INTERNATIONAL LAW; SEAFDEC-AQD; A PERMANENT
INTERNATIONAL ORGANIZATION, WITH A DISTINCT JURIDICAL
PERSONALITY. Being an intergovernmental organization, SEAFDEC
including its Departments (AQD), enjoys functional independence and freedom
from control of the state in whose territory its office is located. Permanent
international commissions and administrative bodies have been created by the
agreement of a considerable number of States for a variety of international
purposes, economic or social and mainly non-political. Among the notable
instances are the International Labor Organization, the International Institute of
Agriculture, the International Danube Commission. In so far as they are
autonomous and beyond the control of any one State, they have a distinct
juridical personality independent of the municipal law of the State where they are
situated. As such, according to one leading authority 'they must be deemed to
possess a species of international personality of their own.' (Salonga and Yap,
Public International Law, 83 [1956 ed.])
3.REMEDIAL LAW; ACTIONS; ESTOPPEL; DOES NOT CONFER
JURISDICTION. Respondent Lazaga's invocation of estoppel with respect to
the issue of jurisdiction is unavailing because estoppel does not apply to confer
jurisdiction to a tribunal that has none over a cause of action. Jurisdiction is
conferred by law. Where there is none, no agreement of the parties can provide
one.
4.ID.; ID.; DECISION OF A TRIBUNAL NOT VESTED WITH JURISDICTION,
NULL AND VOID; CASE AT BAR. Settled is the rule that the decision of a
tribunal not vested with appropriate jurisdiction is null and void. Finding
SEAFDEC-AQD to be an international agency beyond the jurisdiction of the
courts or local agency of the Philippine government, the questioned decision and
resolution of the NLRC dated July 26, 1988 and January 9, 1989, respectively,
are hereby REVERSED and SET ASIDE for having been rendered without
jurisdiction.
D E C I S I O N
NOCON, J p:
This is a petition for certiorari to annul and set aside the July 26, 1988 decision of
the National Labor Relations Commission sustaining the labor arbiter, in holding
herein petitioners Southeast Asian Fisheries Development Center-Aquaculture
Department (SEAFDEC-AQD), Dr. Flor Lacanilao, Rufil Cuevas and Ben de los
Reyes liable to pay private respondent Juvenal Lazaga the amount of
P126,458.89 plus interest thereon computed from May 16, 1986 until full
payment thereof is made, as separation pay and other post-employment benefits,
and the resolution denying the petitioners' motion for reconsideration of said
decision dated January 9, 1989.
The antecedent facts of the case are as follows:
SEAFDEC-AQD is a department of an international organization,
the Southeast Asian Fisheries Development Center, organized through an
agreement entered into in Bangkok, Thailand on December 28, 1967 by the
governments of Malaysia, Singapore, Thailand, Vietnam, Indonesia and the
Philippines with Japan as the sponsoring country (Article 1, Agreement
Establishing the SEAFDEC).
On April 20, 1975, private respondent Juvenal Lazaga was employed as a
Research Associate on a probationary basis by the SEAFDEC-AQD and was
appointed Senior External Affairs Officer on January 5, 1983 with a monthly basic
salary of P8,000.00 and a monthly allowance of P4,000.00. Thereafter, he was
appointed to the position of Professional III and designated as Head of External
Affairs Office with the same pay and benefits. LLjur
On May 8, 1986, petitioner Lacanilao in his capacity as Chief of SEAFDEC-AQD
sent a notice of termination to private respondent informing him that due to the
financial constraints being experienced by the department, his services shall be
terminated at the close of office hours on May 15, 1986 and that he is entitled to
separation benefits equivalent to one (1) month of his basic salary for every year
of service plus other benefits (Rollo, p. 153).
Upon petitioner SEAFDEC-AQD's failure to pay private respondent his
separation pay, the latter filed on March 18, 1987 a complaint against petitioners
for non-payment of separation benefits plus moral damages and attorney's fees
with the Arbitration Branch of the NLRC (Annex "C" of Petition for Certiorari).
Petitioners in their Answer with counterclaim alleged that the NLRC has no
jurisdiction over the case inasmuch as the SEAFDEC-AQD is an international
organization and that private respondent must first secure clearances from the
proper departments for property or money accountability before any claim for
separation pay will be paid, and which clearances had not yet been obtained by
the private respondent.
A formal hearing was conducted whereby private respondent alleged that the
non-issuance of the clearances by the petitioners was politically motivated and in
bad faith. On the other hand, petitioners alleged that private respondent has
property accountability and an outstanding obligation to SEAFDEC-AQD in the
amount of P27,532.11. Furthermore, private respondent is not entitled to accrued
sick leave benefits amounting to P44,000.00 due to his failure to avail of the
same during his employment with the SEAFDEC-AQD (Annex "D", Id.).
On January 12, 1988, the labor arbiter rendered a decision, the dispositive
portion of which reads:
"WHEREFORE, premises considered, judgment is hereby rendered
ordering respondents:
1.To pay complainant P126,458.89, plus legal interest thereon computed
from May 16, 1986 until full payment thereof is made, as separation pay
and other post-employment benefits;
2.To pay complainant actual damages in the amount of P50,000, plus
10% attorney's fees.
All other claims are hereby dismissed.
SO ORDERED." (Rollo, p. 51. Annex "E").
On July 26, 1988, said decision was affirmed by the Fifth Division of
the NLRC except as to the award of P50,000.00 as actual damages and
attorney's fees for being baseless. (Annex "A", p. 28, id.). LexLib
On September 3, 1988, petitioners filed a Motion for Reconsideration (Annex
"G". id.) which was denied on January 9, 1989. Thereafter, petitioners instituted
this petition forcertiorari alleging that the NLRC has no jurisdiction to hear and
decide respondent Lazaga's complaint since SEAFDEC-AQD is immune from
suit owing to its international character and the complaint is in effect a suit
against the State which cannot be maintained without its consent.
The petition is impressed with merit.
Petitioner Southeast Asian Fisheries Development Center-Aquaculture
Department (SEAFDEC-AQD) is an international agency beyond the jurisdiction
of public respondentNLRC.
It was established by the Governments of Burma, Kingdom of Cambodia,
Republic of Indonesia, Japan, Kingdom of Laos, Malaysia, Republic of the
Philippines, Republic of Singapore, Kingdom of Thailand and Republic of
Vietnam (Annex "H", Petition).
The Republic of the Philippines became a signatory to the Agreement
establishing SEAFDEC on January 16, 1968. Its purpose is as follows:
"The purpose of the Center is to contribute to the promotion of
the fisheries development in Southeast Asia by mutual cooperation
among the member governments of the Center, hereinafter called the
'Members', and through collaboration with international organizations
and governments external to the Center. (Agreement Establishing the
SEAFDEC, Art. 1; Annex "H", Petition)" (p. 310, Rollo).
SEAFDEC-AQD was organized during the Sixth Council Meeting of SEAFDEC
on July 3-7, 1973 in Kuala Lumpur, Malaysia as one of the principal departments
of SEAFDEC (Annex "I", id.) to be established in Iloilo for the promotion of
research in aquaculture. Paragraph 1, Article 6 of the Agreement establishing
SEAFDEC mandates:
"1.The Council shall be the supreme organ of the Center and all powers
of the Center shall be vested in the Council."
Being an intergovernmental organization, SEAFDEC including its Departments
(AQD), enjoys functional independence and freedom from control of the state in
whose territory its office is located.
As Senator Jovito R. Salonga and Former Chief Justice Pedro L. Yap stated in
their book, Public International Law (p, 83. 1956 ed.):
"Permanent international commissions and administrative bodies have
been created by the agreement of a considerable number of States for a
variety of international purposes, economic or social and mainly non-
political. Among the notable instances are the International Labor
Organization, the International Institute of Agriculture, the International
Danube Commission. In so far as they are autonomous and beyond the
control of any one State, they have a distinct juridical personality
independent of the municipal law of the State where they are situated.
As such, according to one leading authority they must be deemed to
possess a species of international personality of their own.' (Salonga
and Yap, Public International Law, 83 [1956 ed.])".
Pursuant to its being a signatory to the Agreement, the Republic of the
Philippines agreed to be represented by one Director in the governing SEAFDEC
Council (Agreement Establishing SEAFDEC, Art. 5, Par. 1, Annex "H", ibid) and
that its national laws and regulations shall apply only insofar as its contribution to
SEAFDEC of "an agreed amount of money, movable and immovable property
and services necessary for the establishment and operation of the Center" are
concerned (Art. 11, ibid). It expressly waived the application of the Philippine
laws on the disbursement of funds of petitioner SEAFDEC-AQD (Section 2, P.D.
No. 292).

The then Minister of Justice likewise opined that Philippine Courts have no
jurisdiction over SEAFDEC-AQD in Opinion No. 139, Series of 1984
"4.One of the basic immunities of an international organization is
immunity from local jurisdiction, i.e., that it is immune from the legal writs
and processes issued by the tribunals of the country where it is found.
(See Jenks, Id., pp. 37-44) The obvious reason for this is that the
subjection of such an organization to the authority of the local courts
would afford a convenient medium thru which the host government may
interfere in their operations or even influence or control its policies and
decisions of the organization: besides, such subjection to local
jurisdiction would impair the capacity of such body to discharge its
responsibilities impartially on behalf of its member-states. In the case at
bar, for instance, the entertainment by the National Labor Relations
Commission of Mr. Madamba's reinstatement cases would amount to
interference by the Philippine Government in the management decisions
of the SEARCA governing board; even worse, it could compromise the
desired impartiality of the organization since it will have to suit its
actuations to the requirements of Philippine law, which may not
necessarily coincide with the interests of the other member-states. It is
precisely to forestall these possibilities that in cases where the extent of
the immunity is specified in the enabling instruments of international
organizations, jurisdictional immunity is specified in the enabling
instruments of international organizations, jurisdictional immunity from
the host country is invariably among the first accorded. (See Jenks, Id.;
See also Bowett, The Law of International Institutions, pp. 284-1285)."
Respondent Lazaga's invocation of estoppel with respect to the issue of
jurisdiction is unavailing because estoppel does not apply to confer jurisdiction to
a tribunal that has none over a cause of action. Jurisdiction is conferred by law.
Where there is none, no agreement of the parties can provide one. Settled is the
rule that the decision of a tribunal not vested with appropriate jurisdiction is null
and void. Thus, in Calimlim vs. Ramirez, this Court held:
"A rule that had been settled by unquestioned acceptance and upheld in
decisions so numerous to cite is that the jurisdiction of a court over the
subject matter of the action is a matter of law and may not be conferred
by consent or agreement of the parties. The lack of jurisdiction of a court
may be raised at any stage of the proceedings, even on appeal. This
doctrine has been qualified by recent pronouncements which stemmed
principally from the ruling in the cited case of Sibonghanoy. It is to be
regretted, however, that the holding in said case had been applied to
situations which were obviously not contemplated therein. The
exceptional circumstances involved in Sibonghanoy which justified the
departure from the accepted concept of non-waivability of objection to
jurisdiction has been ignored and, instead a blanket doctrine had been
repeatedly upheld that rendered the supposed ruling in Sibonghanoy not
as the exception, but rather the general rule, virtually overthrowing
altogether the time-honored principle that the issue of jurisdiction is not
lost by waiver or by estoppel." (Calimlim vs. Ramirez, G.R. No. L-
34362, 118 SCRA 399 [1982]). LLjur
Respondent NLRC's citation of the ruling of this Court in Lacanilao v. De
Leon (147 SCRA 286 [1987]) to justify its assumption of jurisdiction over
SEAFDEC is misplaced. On the contrary, the court in said case explained why it
took cognizance of the case. Said the Court:
"We would note, finally, that the present petition relates to a
controversy between two claimants to the same position: this is not
a controversy between the SEAFDEC on the one hand, and an
officer or employee, or a person claiming to be an officer or
employee, of the SEAFDEC, on the other hand. There is before us
no question involving immunity from the jurisdiction of the Court,
there being no plea for such immunity whether by or on behalf of
SEAFDEC, or by an official of SEAFDEC with the consent of
SEAFDEC (Id., at 300; underscoring supplied)."
WHEREFORE, finding SEAFDEC-AQD to be an international agency beyond the
jurisdiction of the courts or local agency of the Philippine government, the
questioned decision and resolution of the NLRC dated July 26, 1988 and January
9, 1989, respectively, are hereby REVERSED and SET ASIDE for having been
rendered without jurisdiction. No costs.
SO ORDERED.
Melencio-Herrera, Paras, Padilla and Regalado, JJ., concur.
||| (Southeast Asian Fisheries Development Center-Aquaculture Department v.
NLRC, G.R. No. 86773, February 14, 1992)

FIRST DIVISION
[G.R. No. 142396. February 11, 2003.]
KHOSROW MINUCHER, petitioner, vs.
HON. COURT OF APPEALS and ARTHUR
SCALZO, respondents.
Vicente D. Millora for petitioner.
Abello Concepcion Regala and Cruz for private respondent.
SYNOPSIS
Petitioner Khosrow Minucher, an Iranian national, was charged for
violation of Section 4 of Republic Act No. 6425, otherwise known as the
"Dangerous Drugs Act of 1972." The narcotic agents who raided the
house of Minucher were accompanied by private respondent Arthur
Scalzo. Minucher was acquitted by the trial court of the charges. Minucherfiled a
civil case before the Regional Trial Court of Manila for damages on
account of what he claimed to have been trumped-up charges of drug trafficking
made by Arthur Scalzo. Scalzo filed a motion to dismiss the complaint on the
ground that, being a special agent of the United States Drug Enforcement
Administration, he was entitled to diplomatic immunity. The trial court denied the
motion to dismiss. Scalzo filed a petition for certiorari with injunction with
the Court, asking that the complaint be ordered dismissed. The case was
referred to the Court of Appeals. The appellate court promulgated its decision
sustaining the diplomatic immunity of Scalzo and ordering the dismissalof the
complaint against him. Minucher filed a petition for review with
the Court, appealing the judgment of the Court of Appeals. The
Supreme Court reversed the decision ofthe appellate court and remanded the
case to the lower court. The Manila RTC continued with its hearings on the case.
After trial, the court rendered a decision in favor ofpetitioner
Khosrow Minucher and adjudged private respondent Arthur Scalzo liable in
actual and compensatory damages of P520,000.00; moral damages in the
sum of P10 million; exemplary damages in the sum of P100,000.00; attorney's
fees in the sum of P200,000.00 plus costs. On appeal,
the Court of Appeals reversed the decision of the trial court and sustained the
defense of Scalzo that he was sufficiently clothed with diplomatic immunity during
his term of duty and thereby immune from the criminal and civil jurisdiction of the
"Receiving State" pursuant to the terms of the Vienna Convention. Hence, the
present petition for review. AScHCD
The Supreme Court denied the petition. According to the Court, a foreign agent,
operating within a territory, can be cloaked with immunity from suit but only as
long as it can be established that he is acting within the directives of the sending
state. The consent of the host state is an indispensable requirement of basic
courtesy between the two sovereigns. The official exchanges of communication
between agencies of the government of the two countries, certifications from
officials of both the Philippine Departmentof Foreign Affairs and the United States
Embassy, as well as the participation of members of the Philippine Narcotics
Command in the "buy-bust operation" conducted at the residence of Minucher at
the behest of Scalzo, may be inadequate to support the "diplomatic status" of the
latter, but they give enough indication that the Philippine government has given
its imprimatur, if not consent, to the activities within Philippine territory of agent
Scalzo of the United States Drug Enforcement Agency. The job
description of Scalzo has tasked him to conduct surveillance on suspected drug
suppliers and, after having ascertained the target, to inform local law enforcers
who would then be expected to make the arrest. In conducting surveillance
activities on Minucher, later acting as the poseur-buyer during the buy-bust
operation, and then becoming a principal witness in the criminal case
against Minucher, Scalzo hardly can be said to have acted beyond the
scope of his official function or duties. HTIEaS
SYLLABUS
1.POLITICAL LAW; INTERNATIONAL LAW; DOCTRINE OF STATE IMMUNITY
FROM SUIT; DIPLOMATIC IMMUNITY; A PREROGATIVE OF THE
EXECUTIVE BRANCH OF THE GOVERNMENT. Vesting a person with
diplomatic immunity is a prerogative of the executive branch of the government.
In World Health Organization vs. Aquino, the Courthas recognized that, in such
matters, the hands of the courts are virtually tied. Amidst
apprehensions of indiscriminate and incautious grant of immunity, designed to
gain exemption from the jurisdiction of courts, it should behoove the Philippine
government, specifically its Department of Foreign Affairs, to be most
circumspect, that should particularly be no less than compelling, in its post litem
motam issuances. It might be recalled that the privilege is not an immunity from
the observance of the law of the territorial sovereign or from ensuing legal
liability; it is, rather, an immunity from the exercise of territorial jurisdiction. The
government of the United States itself, which Scalzo claims to be acting for, has
formulated its standards for recognition of a diplomatic agent. The State
Department policy is to only concede diplomatic status to a person who
possesses an acknowledged diplomatic title and "performs duties of diplomatic
nature." Supplementary criteria for accreditation are the possession of a valid
diplomatic passport or, from States which do not issue such passports, a
diplomatic note formally representing the intention to assign the person to
diplomatic duties, the holding of a non-immigrant visa, being over twenty-one
years of age, and performing diplomatic functions on an essentially full-time
basis. Diplomatic missions are requested to provide the most accurate and
descriptive job title to that which currently applies to the duties performed. The
Office of the Protocol would then assign each individual to the appropriate
functional category.
2.ID.; ID.; ID.; ID.; IF THE ACTS GIVING RISE TO A SUIT ARE THOSE OF A
FOREIGN GOVERNMENT DONE BY ITS FOREIGN AGENT, ALTHOUGH NOT
NECESSARILY A DIPLOMATIC PERSONAGE, BUT ACTING IN HIS OFFICIAL
CAPACITY, THE COMPLAINT COULD BE BARRED BY THE
IMMUNITY OF THE FOREIGN SOVEREIGN FROM SUIT WITHOUT ITS
CONSENT. But while the diplomatic immunity of Scalzo might thus remain
contentious, it was sufficiently established that, indeed, he worked for the United
States Drug Enforcement Agency and was tasked to conduct
surveillance of suspected drug activities within the country on the dates pertinent
to this case. If it should be ascertained that Arthur Scalzo was acting well within
his assigned functions when he committed the acts alleged in the complaint, the
present controversy could then be resolved under the related doctrine of State
Immunity from Suit. The precept that a State cannot be sued in the courts of a
foreign state is a long-standing rule of customary international law then closely
identified with the personal immunity of a foreign sovereign from suit and, with
the emergence of democratic states, made to attach not just to the person of the
head of state, or his representative, but also distinctly to the state itself in its
sovereign capacity. If the acts giving rise to a suit are those of a foreign
government done by its foreign agent, although not necessarily a diplomatic
personage, but acting in his official capacity, the complaint could be barred by
the immunity of the foreign sovereign from suit without its consent. Suing a
representative of a state is believed to be, in effect, suing the state itself. The
proscription is not accorded for the benefit of an individual but for the State, in
whose service he is, under the maxim par in parem, non habet imperium
that all states are sovereign equals and cannot assert jurisdiction over one
another. The implication, in broad terms, is that if the judgment against an official
would require the state itself to perform an affirmative act to satisfy the award,
such as the appropriation of the amount needed to pay the damages decreed
against him, the suit must be regarded as being against the state itself, although
it has not been formally impleaded.
3.ID.; ID.; ID.; ID.; A FOREIGN AGENT, OPERATING WITHIN A TERRITORY,
CAN BE CLOAKED WITH IMMUNITY FROM SUIT AS LONG AS IT CAN BE
ESTABLISHED THAT HE IS ACTING WITHIN THE DIRECTIVES OF THE
SENDING STATE. A foreign agent, operating within a territory, can be
cloaked with immunity from suit but only as long as it can be established that he
is acting within the directives of the sending state. The consent of the host state
is an indispensable requirement of basic courtesy between the two sovereigns.
The official exchanges of communication between agencies of the
government of the two countries, certifications from officials of both the Philippine
Departmentof Foreign Affairs and the United States Embassy, as well as the
participation of members of the Philippine Narcotics Command in the "buy-bust
operation" conducted at the residence of Minucher at the behest of Scalzo, may
be inadequate to support the "diplomatic status" of the latter but they give
enough indication that the Philippine government has given its imprimatur, if not
consent, to the activities within Philippine territory of agent Scalzo of the United
States Drug Enforcement Agency. The job description of Scalzo has tasked him
to conduct surveillance on suspected drug suppliers and, after having
ascertained the target, to inform local law enforcers who would then be expected
to make the arrest. In conducting surveillance activities on Minucher, later acting
as the poseur-buyer during the buy-bust operation, and then becoming a
principal witness in the criminal case against Minucher, Scalzo hardly can be
said to have acted beyond the scope of his official function or duties. All told,
this Court is constrained to rule that respondent Arthur Scalzo, an agent of the
United States Drug Enforcement Agency allowed by the Philippine government to
conduct activities in the country to help contain the problem on the drug traffic, is
entitled to the defense of state immunity from suit. SHAcID
D E C I S I O N
VITUG, J p:
Sometime in May 1986, an Information for violation of Section 4 of Republic Act
No. 6425, otherwise also known as the "Dangerous Drugs Act of 1972," was filed
against petitioner Khosrow Minucher and one Abbas Torabian with the Regional
Trial Court, Branch 151, of Pasig City. The criminal charge followed a "buy-bust
operation" conducted by the Philippine police narcotic agents in the
house of Minucher, an Iranian national, where a quantity of heroin, a prohibited
drug, was said to have been seized. The narcotic agents were accompanied by
private respondent Arthur Scalzo who would, in due time, become one of the
principal witnesses for the prosecution. On 08 January 1988, Presiding Judge
Eutropio Migrino rendered a decision acquitting the two accused. ScHADI

On 03 August 1988, Minucher filed Civil Case No. 88-45691 before the Regional
Trial Court (RTC), Branch 19, of Manila for damages on account of what he
claimed to have been trumped-up charges of drug trafficking made by Arthur
Scalzo. The Manila RTC detailed what it had found to be the facts and
circumstances surrounding the case.
"The testimony of the plaintiff disclosed that he is an Iranian national. He
came to the Philippines to study in the University of the Philippines in
1974. In 1976, under the regime of the Shah of Iran, he was appointed
Labor Attach for the Iranian Embassies in Tokyo, Japan and Manila,
Philippines. When the Shah of Iran was deposed by Ayatollah Khomeini,
plaintiff became a refugee of the United Nations and continued to stay in
the Philippines. He headed the Iranian National Resistance Movement in
the Philippines.
"He came to know the defendant on May 13, 1986, when the latter was
brought to his house and introduced to him by a certain Jose Iigo, an
informer of the Intelligence Unit of the military. Jose Iigo, on the other
hand, was met by plaintiff at the office of Atty. Crisanto Saruca, a lawyer
for several Iranians whom plaintiff assisted as head of the anti-Khomeini
movement in the Philippines.
"During his first meeting with the defendant on May 13, 1986, upon the
introduction of Jose Iigo, the defendant expressed his interest in buying
caviar. As a matterof fact, he bought two kilos of caviar from plaintiff and
paid P10,000.00 for it. Selling caviar, aside from that of Persian carpets,
pistachio nuts and other Iranian products was his business after the
Khomeini government cut his pension of over $3,000.00 per month.
During their introduction in that meeting, the defendant gave the plaintiff
his calling card, which showed that he is working at the US Embassy in
the Philippines, as a special agent of the Drug Enforcement
Administration, Department of Justice, of the United States, and gave his
address as US Embassy, Manila. At the back of the card appears a
telephone number in defendant's own handwriting, the number of which
he can also be contacted.
"It was also during this first meeting that plaintiff expressed his desire to
obtain a US Visa for his wife and the wife of a countryman named Abbas
Torabian. The defendant told him that he [could] help plaintiff for a
fee of $2,000.00 per visa. Their conversation, however, was more
concentrated on politics, carpets and caviar. Thereafter, the defendant
promised to see plaintiff again.
"On May 19, 1986, the defendant called the plaintiff and invited the latter
for dinner at Mario's Restaurant at Makati. He wanted to buy 200
grams of caviar. Plaintiff brought the merchandise but for the reason that
the defendant was not yet there, he requested the restaurant people to .
. . place the same in the refrigerator. Defendant, however, came and
plaintiff gave him the caviar for which he was paid. Then their
conversation was again focused on politics and business.
"On May 26, 1986, defendant visited plaintiff again at the latter's
residence for 18 years at Kapitolyo, Pasig. The defendant wanted to buy
a pair of carpets which plaintiff valued at $27,900.00. After some
haggling, they agreed at $24,000.00. For the reason that defendant did
not yet have the money, they agreed that defendant would come back
the next day. The following day, at 1:00 p.m., he came back with his
$24,000.00, which he gave to the plaintiff, and the latter, in turn, gave
him the pair of carpets.
"At about 3:00 in the afternoon of May 27, 1986, the defendant came
back again to plaintiff's house and directly proceeded to the latter's
bedroom, where the latter and his countryman, Abbas Torabian, were
playing chess. Plaintiff opened his safe in the bedroom and obtained
$2,000.00 from it, gave it to the defendant for the latter's fee in obtaining
a visa for plaintiff's wife. The defendant told him that he would be leaving
the Philippines very soon and requested him to come out of the house
for a while so that he can introduce him to his cousin waiting in a cab.
Without much ado, and without putting on his shirt as he was only in his
pajama pants, he followed the defendant where he saw a parked cab
opposite the street. To his complete surprise, an American jumped
out of the cab with a drawn high-powered gun. He was in the
company of about 30 to 40 Filipino soldiers with 6 Americans, all armed.
He was handcuffed and after about 20 minutes in the street, he was
brought inside the house by the defendant. He was made to sit down
while in handcuffs while the defendant was inside his bedroom. The
defendant came out of the bedroom and out from defendant's attach
case, he took something and placed it on the table in front of the plaintiff.
They also took plaintiff's wife who was at that time at the boutique near
his house and likewise arrested Torabian, who was playing chess with
him in the bedroom and both were handcuffed together. Plaintiff was not
told why he was being handcuffed and why the privacy of his house,
especially his bedroom was invaded by defendant. He was not allowed
to use the telephone. In fact, his telephone was unplugged. He asked for
any warrant, but the defendant told him to 'shut up.' He was nevertheless
told that he would be able to call for his lawyer who can defend him. CTDAaE
"The plaintiff took note of the fact that when the defendant invited him to
come out to meet his cousin, his safe was opened where he kept the
$24,000.00 the defendant paid for the carpets and another $8,000.00
which he also placed in the safe together with a bracelet worth
$15,000.00 and a pair of earrings worth $10,000.00. He also discovered
missing upon his release his 8 pieces hand-made Persian carpets,
valued at $65,000.00, a painting he bought P30,000.00 together with his
TV and betamax sets. He claimed that when he was handcuffed, the
defendant took his keys from his wallet. There was, therefore, nothing
left in his house.
"That his arrest as a heroin trafficker . . . had been well publicized
throughout the world, in various newspapers, particularly in Australia,
America, Central Asia and in the Philippines. He was identified in the
papers as an international drug trafficker . . . .
In fact, the arrest of defendant and Torabian was likewise on television,
not only in the Philippines, but also in America and in Germany. His
friends in said places informed him that they saw him on TV with said
news.
"After the arrest made on plaintiff and Torabian, they were brought to
Camp Crame handcuffed together, where they were detained for three
days without food and water." 1
During the trial, the law firm of Luna, Sison and Manas, filed a special
appearance for Scalzo and moved for extension of time to file an answer pending
a supposed advice from the United States Department of State and
Department of Justice on the defenses to be raised. The trial court granted the
motion. On 27 October 1988, Scalzo filed another special appearance to quash
the summons on the ground that he, not being a resident of the Philippines and
the action being one in personam, was beyond the processes ofthe court. The
motion was denied by the court, in its order of 13 December 1988, holding that
the filing by Scalzo of a motion for extension of time to file an answer to the
complaint was a voluntary appearance equivalent to service of summons which
could likewise be construed a waiver of the requirement of formal notice. Scalzo
filed a motion for reconsideration of the court order, contending that a motion for
an extension of time to file an answer was not a voluntary appearance equivalent
to service of summons since it did not seek an affirmative relief. Scalzo argued
that in cases involving the United States government, as well as its agencies and
officials, a motion for extension was peculiarly unavoidable due to the need (1)
for both the Department of State and the Department of Justice to agree on the
defenses to be raised and (2) to refer the case to a Philippine lawyer who would
be expected to first review the case. The court a quo denied the motion for
reconsideration in its order of 15 October 1989.
Scalzo filed a petition for review with the Court of Appeals, there docketed CA-
G.R. No. 17023, assailing the denial. In a decision, dated 06 October 1989, the
appellate courtdenied the petition and affirmed the ruling of the trial court. Scalzo
then elevated the incident in a petition for review on certiorari, docketed G.R. No.
91173, to this Court. The petition, however, was denied for its failure to comply
with SC Circular No. 1-88; in any event, the Court added, Scalzo had failed to
show that the appellate court was in error in its questioned judgment.
Meanwhile, at the court a quo, an order, dated 09 February 1990, was issued (a)
declaring Scalzo in default for his failure to file a responsive pleading (answer)
and (b) setting the case for the reception of evidence. On 12 March 1990, Scalzo
filed a motion to set aside the order of default and to admit his answer to the
complaint. Granting the motion, the trial court set the case for pre-trial. In his
answer, Scalzo denied the material allegations of the complaint and raised the
affirmative defenses (a) of Minucher's failure to state a cause of action in his
complaint and (b) that Scalzo had acted in the discharge of his official duties as
being merely an agent of the Drug Enforcement Administration ofthe United
States Department of Justice. Scalzo interposed a counterclaim of P100,000.00
to answer for attorneys' fees and expenses of litigation.
Then, on 14 June 1990, after almost two years since the institution of the civil
case, Scalzo filed a motion to dismiss the complaint on the ground that, being a
special agent ofthe United States Drug Enforcement Administration, he was
entitled to diplomatic immunity. He attached to his motion Diplomatic Note No.
414 of the United States Embassy, dated 29 May 1990, addressed to the
Department of Foreign Affairs of the Philippines and a Certification, dated 11
June 1990, of Vice Consul Donna Woodward, certifying that the note is a true
and faithful copy of its original. In an order of 25 June 1990, the trial court denied
the motion to dismiss.

On 27 July 1990, Scalzo filed a petition for certiorari with injunction with
this Court, docketed G.R. No. 94257 and entitled "Arthur W. Scalzo, Jr., vs. Hon.
Wenceslao Polo, et al.," asking that the complaint in Civil Case No. 88-45691 be
ordered dismissed. The case was referred to the Court of Appeals, there
docketed CA-G.R. SP No. 22505, per thisCourt's resolution of 07 August 1990.
On 31 October 1990, the Court of Appeals promulgated its decision sustaining
the diplomatic immunity of Scalzo and ordering the dismissal of the complaint
against him. Minucher filed a petition for review with this Court, docketed G.R.
No. 97765 and entitled "Khosrow Minucher vs. the Honorable Courtof Appeals, et
al." (cited in 214 SCRA 242), appealing the judgment of the Court of Appeals. In
a decision, dated 24 September 1992, penned by Justice (now Chief Justice)
Hilario Davide, Jr., this Court reversed the decision of the appellate court and
remanded the case to the lower court for trial. The remand was ordered on the
theses (a) that the Court of Appeals erred in granting the motion to
dismiss of Scalzo for lack of jurisdiction over his person without even considering
the issue of the authenticity ofDiplomatic Note No. 414 and (b) that the complaint
contained sufficient allegations to the effect that Scalzo committed the imputed
acts in his personal capacity and outside the scope of his official duties and,
absent any evidence to the contrary, the issue on Scalzo's diplomatic immunity
could not be taken up. SCaTAc
The Manila RTC thus continued with its hearings on the case. On 17 November
1995, the trial court reached a decision; it adjudged:
"WHEREFORE, and in view of all the foregoing considerations,
judgment is hereby rendered for the plaintiff, who successfully
established his claim by sufficient evidence, against the defendant in the
manner following:
"'Adjudging defendant liable to plaintiff in actual and
compensatory damages of P520,000.00; moral damages in the
sum of P10 million; exemplary damages in the
sum of P100,000.00; attorney's fees in the sum of P200,000.00
plus costs.
'The Clerk of the Regional Trial Court, Manila, is ordered to take
note of the lien of the Court on this judgment to answer for the
unpaid docket fees considering that the plaintiff in this case
instituted this action as a pauper litigant."' 2
While the trial court gave credence to the claim of Scalzo and the evidence
presented by him that he was a diplomatic agent entitled to immunity as such, it
ruled that he, nevertheless, should be held accountable for the acts
complained of committed outside his official duties. On appeal,
the Court of Appeals reversed the decision of the trialcourt and sustained the
defense of Scalzo that he was sufficiently clothed with diplomatic immunity during
his term of duty and thereby immune from the criminal and civil jurisdiction of the
"Receiving State" pursuant to the terms of the Vienna Convention.
Hence, this recourse by Minucher. The instant petition for review raises a two-
fold issue: (1) whether or not the doctrine of conclusiveness of judgment,
following the decision rendered by this Court in G.R. No. 97765, should have
precluded the Court of Appeals from resolving the appeal to it in an entirely
different manner, and (2) whether or not Arthur Scalzo is indeed entitled to
diplomatic immunity.
The doctrine of conclusiveness of judgment, or its kindred rule of res judicata,
would require 1) the finality of the prior judgment, 2) a valid jurisdiction over the
subject matter and the parties on the part of the court that renders it, 3) a
judgment on the merits, and 4) an identity of the parties, subject matter and
causes of action. 3 Even while one ofthe issues submitted in G.R. No. 97765
"whether or not public respondent Court of Appeals erred in ruling that private
respondent Scalzo is a diplomat immune from civil suit conformably with the
Vienna Convention on Diplomatic Relations" is also a pivotal question raised
in the instant petition, the ruling in G.R. No. 97765, however, has not resolved
that point with finality. Indeed, the Court there has made this observation
"It may be mentioned in this regard that private respondent himself, in
his Pre-trial Brief filed on 13 June 1990, unequivocally states that he
would present documentary evidence consisting of DEA records on his
investigation and surveillance of plaintiff and on his position and duties
as DEA special agent in Manila. Having thus reserved his right to
present evidence in support of his position, which is the basis for the
alleged diplomatic immunity, the barren self-serving claim in the belated
motion to dismiss cannot be relied upon for a reasonable, intelligent and
fair resolution of the diplomatic immunity." 4
Scalzo contends that the Vienna Convention on Diplomatic Relations, to which
the Philippines is a signatory, grants him absolute immunity from suit, describing
his functions as an agent of the United States Drugs Enforcement Agency as
"conducting surveillance operations on suspected drug dealers in the Philippines
believed to be the source ofprohibited drugs being shipped to the U.S., (and)
having ascertained the target, (he then) would inform the Philippine narcotic
agents (to) make the actual arrest." Scalzo has submitted to the trial court a
number of documents
1.Exh. '2' Diplomatic Note No. 414 dated 29 May 1990;
2.Exh. '1' Certification of Vice Consul Donna K. Woodward
dated 11 June 1990;
3.Exh. '5' Diplomatic Note No. 757 dated 25 October 1991;
4.Exh. '6' Diplomatic Note No. 791 dated 17 November 1992;
and
5.Exh. '7' Diplomatic Note No. 833 dated 21 October 1988.
6.Exh. '3' 1st Indorsement of the Hon. Jorge R. Coquia, Legal
Adviser, Department of Foreign Affairs, dated 27 June 1990
forwarding Embassy Note No. 414 to the
Clerk of Court of RTC Manila, Branch 19 (the trial court);
7.Exh. '4' Diplomatic Note No. 414, appended to the 1st
Indorsement (Exh. '3'); and
8.Exh. '8' Letter dated 18 November 1992 from the Office of the
Protocol, Department of Foreign Affairs, through Asst. Sec.
Emmanuel Fernandez, addressed to the Chief
Justice of this Court. 5
The documents, according to Scalzo, would show that: (1) the United States
Embassy accordingly advised the Executive Department of the Philippine
Government that Scalzo was a member of the diplomatic staff of the United
States diplomatic mission from his arrival in the Philippines on 14 October 1985
until his departure on 10 August 1988; (2) that the United States Government
was firm from the very beginning in asserting the diplomatic immunity of Scalzo
with respect to the case pursuant to the provisions of the Vienna Convention on
Diplomatic Relations; and (3) that the United States Embassy repeatedly urged
the Department of Foreign Affairs to take appropriate action to inform the
trial court of Scalzo's diplomatic immunity. The other documentary exhibits were
presented to indicate that: (1) the Philippine government itself, through its
Executive Department, recognizing and respecting the diplomatic
status of Scalzo, formally advised the "Judicial Department" of his diplomatic
status and his entitlement to all diplomatic privileges and immunities under the
Vienna Convention; and (2) the Department of Foreign Affairs itself authenticated
Diplomatic Note No. 414. Scalzo additionally presented Exhibits "9" to "13"
consisting of his reports of investigation on the surveillance and subsequent
arrest of Minucher, the certification of the Drug Enforcement Administration ofthe
United States Department of Justice that Scalzo was a special agent assigned to
the Philippines at all times relevant to the complaint, and the special
power of attorney executed by him in favor of his previous counsel 6 to show (a)
that the United States Embassy, affirmed by its Vice Consul, acknowledged
Scalzo to be a member of the diplomatic staff of the United States diplomatic
mission from his arrival in the Philippines on 14 October 1985 until his departure
on 10 August 1988, (b) that, on May 1986, with the cooperation of the Philippine
law enforcement officials and in the exercise of his functions as member of the
mission, he investigated Minucher for alleged trafficking in a prohibited drug, and
(c) that the Philippine Department of Foreign Affairs itself recognized that Scalzo
during his tour of duty in the Philippines (14 October 1985 up to 10 August 1988)
was listed as being an Assistant Attach of the United States diplomatic mission
and accredited with diplomatic status by the Government of the Philippines. In his
Exhibit 12, Scalzo described the functions of the overseas office of the United
States Drugs Enforcement Agency, i.e., (1) to provide criminal investigative
expertise and assistance to foreign law enforcement agencies on narcotic and
drug control programs upon the request of the host country, 2) to establish and
maintain liaison with the host country and counterpart foreign law enforcement
officials, and 3) to conduct complex criminal investigations involving international
criminal conspiracies which affect the interests of the United States. DIEACH
The Vienna Convention on Diplomatic Relations was a codification of centuries-
old customary law and, by the time of its ratification on 18 April 1961, its
rules of law had long become stable. Among the city states of ancient Greece,
among the peoples of the Mediterranean before the establishment of the Roman
Empire, and among the states ofIndia, the person of the herald in time of war and
the person of the diplomatic envoy in time of peace were universally held
sacrosanct. 7 By the end of the 16th century, when the earliest treatises on
diplomatic law were published, the inviolability of ambassadors was firmly
established as a rule of customary international law. 8 Traditionally, the
exercise of diplomatic intercourse among states was undertaken by the
head of state himself, as being the preeminent embodiment of the state he
represented, and the foreign secretary, the official usually entrusted with the
external affairs of the state. Where a state would wish to have a more prominent
diplomatic presence in the receiving state, it would then send to the latter a
diplomatic mission. Conformably with the Vienna Convention, the functions of the
diplomatic mission involve, by and large, the representation of the interests of the
sending state and promoting friendly relations with the receiving state. 9

The Convention lists the classes of heads of diplomatic missions to include (a)
ambassadors or nuncios accredited to the heads of state, 10 (b)
envoys, 11 ministers orinternuncios accredited to the heads of states; and
(c) charges d' affairs 12 accredited to the ministers of foreign
affairs. 13 Comprising the "staff of the (diplomatic) mission" are the diplomatic
staff, the administrative staff and the technical and service staff. Only the
heads of missions, as well as members of the diplomatic staff, excluding the
membersof the administrative, technical and service staff of the mission, are
accorded diplomatic rank. Even while the Vienna Convention on Diplomatic
Relations provides for immunity to the members of diplomatic missions, it does
so, nevertheless, with an understanding that the same be restrictively applied.
Only "diplomatic agents," under the terms of the Convention, are vested with
blanket diplomatic immunity from civil and criminal suits. The Convention defines
"diplomatic agents" as the heads of missions or members of the diplomatic staff,
thus impliedly withholding the same privileges from all others. It might bear
stressing that even consuls, who represent their respective states in
concerns of commerce and navigation and perform certain administrative and
notarial duties, such as the issuance of passports and visas,
authentication ofdocuments, and administration of oaths, do not ordinarily enjoy
the traditional diplomatic immunities and privileges accorded diplomats, mainly
for the reason that they are not charged with the duty of representing their states
in political matters. Indeed, the main yardstick in ascertaining whether a person is
a diplomat entitled to immunity is the determination of whether or not he performs
duties of diplomatic nature.
Scalzo asserted, particularly in his Exhibits "9" to "13," that he was an Assistant
Attach of the United States diplomatic mission and was accredited as such by
the Philippine Government. An attach belongs to a category of officers in the
diplomatic establishment who may be in charge of its cultural, press,
administrative or financial affairs. There could also be a class of attaches
belonging to certain ministries or departments of the government, other than the
foreign ministry or department, who are detailed by their respective ministries or
departments with the embassies such as the military, naval, air, commercial,
agricultural, labor, science, and customs attaches, or the like. Attaches assist a
chief of mission in his duties and are administratively under him, but their main
function is to observe, analyze and interpret trends and developments in their
respective fields in the host country and submit reports to their own ministries or
departments in the home government. 14 These officials are not generally
regarded as members of the diplomatic mission, nor are they normally
designated as having diplomatic rank.
In an attempt to prove his diplomatic status, Scalzo presented Diplomatic Notes
Nos. 414, 757 and 791, all issued post litem motam, respectively, on 29 May
1990, 25 October 1991 and 17 November 1992. The presentation did nothing
much to alleviate the Court's initial reservations in G.R. No. 97765, viz:
"While the trial court denied the motion to dismiss, the public respondent
gravely abused its discretion in dismissing Civil Case No. 88-45691 on
the basis of an erroneous assumption that simply because of the
diplomatic note, the private respondent is clothed with diplomatic
immunity, thereby divesting the trial court ofjurisdiction over his person.
"xxx xxx xxx
"And now, to the core issue the alleged diplomatic immunity of the
private respondent. Setting aside for the moment the
issue of authenticity raised by the petitioner and the doubts that surround
such claim, in view of the fact that it took private respondent one (1)
year, eight (8) months and seventeen (17) days from the time his
counsel filed on 12 September 1988 a Special Appearance and Motion
asking for a first extension of time to file the Answer because the
Departments of State and Justice of the United States of America were
studying the case for the purpose of determining his defenses, before he
could secure the Diplomatic Note from the US Embassy in Manila, and
even granting for the sake of argument that such note is authentic, the
complaint for damages filed by petitioner cannot be peremptorily
dismissed.
"xxx xxx xxx
"There is of course the claim of private respondent that the acts imputed
to him were done in his official capacity. Nothing supports this self-
serving claim other than the so-called Diplomatic Note . . . . The public
respondent then should have sustained the trial court's denial of the
motion to dismiss. Verily, it should have been the most proper and
appropriate recourse. It should not have been overwhelmed by the self-
serving Diplomatic Note whose belated issuance is even suspect and
whose authenticity has not yet been proved. The undue haste with which
respondent Court yielded to the private respondent's claim is arbitrary."
A significant document would appear to be Exhibit No. 08, dated 08 November
1992, issued by the Office of Protocol of the Department of Foreign Affairs and
signed by Emmanuel C. Fernandez, Assistant Secretary, certifying that "the
records of the Department (would) show that Mr. Arthur W. Scalzo, Jr., during his
term of office in the Philippines (from 14 October 1985 up to 10 August 1988)
was listed as an Assistant Attach of the United States diplomatic mission and
was, therefore, accredited diplomatic status by the Government of the
Philippines." No certified true copy of such "records," the supposed bases for the
belated issuance, was presented in evidence. SEIDAC
Concededly, vesting a person with diplomatic immunity is a prerogative of the
executive branch of the government. In World Health
Organization vs. Aquino, 15 the Court has recognized that, in such matters, the
hands of the courts are virtually tied. Amidst apprehensions of indiscriminate and
incautious grant of immunity, designed to gain exemption from the
jurisdiction of courts, it should behoove the Philippine government, specifically its
Department of Foreign Affairs, to be most circumspect, that should particularly be
no less than compelling, in its post litem motam issuances. It might be recalled
that the privilege is not an immunity from the observance of the law of the
territorial sovereign or from ensuing legal liability; it is, rather, an immunity from
the exercise of territorial jurisdiction. 16 The government of the United States
itself, which Scalzo claims to be acting for, has formulated its standards for
recognition of a diplomatic agent. The State Department policy is to only
concede diplomatic status to a person who possesses an acknowledged
diplomatic title and "performs duties of diplomatic nature." 17 Supplementary
criteria for accreditation are the possession of a valid diplomatic passport or, from
States which do not issue such passports, a diplomatic note formally
representing the intention to assign the person to diplomatic duties, the
holding of a non-immigrant visa, being over twenty-one years of age, and
performing diplomatic functions on an essentially full-time basis. 18 Diplomatic
missions are requested to provide the most accurate and descriptive job title to
that which currently applies to the duties performed. The Office of the Protocol
would then assign each individual to the appropriate functional category. 19
But while the diplomatic immunity of Scalzo might thus remain contentious, it was
sufficiently established that, indeed, he worked for the United States Drug
Enforcement Agency and was tasked to conduct surveillance of suspected drug
activities within the country on the dates pertinent to this case. If it should be
ascertained that Arthur Scalzo was acting well within his assigned functions
when he committed the acts alleged in the complaint, the present controversy
could then be resolved under the related doctrineof State Immunity from Suit.
The precept that a State cannot be sued in the courts of a foreign state is a long-
standing rule of customary international law then closely identified with the
personal immunityof a foreign sovereign from suit 20 and, with the
emergence of democratic states, made to attach not just to the person of the
head of state, or his representative, but also distinctly to the state itself in its
sovereign capacity. 21 If the acts giving rise to a suit are those of a foreign
government done by its foreign agent, although not necessarily a diplomatic
personage, but acting in his official capacity, the complaint could be barred by
the immunity of the foreign sovereign from suit without its consent. Suing a
representative of a state is believed to be, in effect, suing the state itself. The
proscription is not accorded for the benefit of an individual but for the State, in
whose service he is, under the maxim par in parem, non habet imperium
that all states are sovereign equals and cannot assert jurisdiction over one
another. 22 The implication, in broad terms, is that if the judgment against an
official would require the state itself to perform an affirmative act to satisfy the
award, such as the appropriation of the amount needed to pay the damages
decreed against him, the suit must be regarded as being against the state itself,
although it has not been formally impleaded. 23
In United States of America vs. Guinto, 24 involving officers of the United States
Air Force and special officers of the Air Force Office of Special Investigators
charged with the duty of preventing the distribution, possession and
use of prohibited drugs, this Court has ruled
"While the doctrine (of state immunity) appears to prohibit only suits
against the state without its consent, it is also applicable to complaints
filed against officials ofthe state for acts allegedly performed by them in
the discharge of their duties. . . . It cannot for a moment be imagined that
they were acting in their private or unofficial capacity when they
apprehended and later testified against the complainant. It follows that
for discharging their duties as agents of the United States, they cannot
be directly impleaded for acts imputable to their principal, which has not
given its consent to be sued. . . . As they have acted on behalf of the
government, and within the scope of their authority, it is that government,
and not the petitioners personally, [who were] responsible for their
acts." 25

This immunity principle, however, has its limitations.
Thus, Shauf vs. Court of Appeals 26 elaborates:
"It is a different matter where the public official is made to account in his
capacity as such for acts contrary to law and injurious to the rights of the
plaintiff. As was clearly set forth by Justice Zaldivar in Director of the
Bureau of Telecommunications, et al., vs. Aligaen, et al. (33 SCRA 368):
'Inasmuch as the State authorizes only legal acts by its officers,
unauthorized acts of government officials or officers are not acts of the
State, and an action against the officials or officers by one whose rights
have been invaded or violated by such acts, for the protection of his
rights, is not a suit against the State within the rule of immunity of the
State from suit. In the same tenor, it has been said that an action at law
or suit in equity against a State officer or the director of a State
department on the ground that, while claiming to act for the State, he
violates or invades the personal and property rights of the plaintiff, under
an unconstitutional act or under an assumption of authority which he
does not have, is not a suit against the State within the constitutional
provision that the State may not be sued without its consent. The
rationale for this ruling is that the doctrine of state immunity cannot be
used as an instrument for perpetrating an injustice.
"xxx xxx xxx
"(T)he doctrine of immunity from suit will not apply and may not be
invoked where the public official is being sued in his private and personal
capacity as an ordinary citizen. The cloak of protection afforded the
officers and agents of the government is removed the moment they are
sued in their individual capacity. This situation usually arises where the
public official acts without authority or in excess of the powers vested in
him. It is a well-settled principle of law that a public official may be liable
in his personal private capacity for whatever damage he may have
caused by his act done with malice and in bad faith or beyond the
scope of his authority and jurisdiction." 27
A foreign agent, operating within a territory, can be cloaked with immunity from
suit but only as long as it can be established that he is acting within the
directives of the sending state. The consent of the host state is an indispensable
requirement of basic courtesy between the two
sovereigns. Guinto and Shauf both involve officers and personnel of the United
States, stationed within Philippine territory, under the RP-US Military Bases
Agreement. While evidence is wanting to show any similar agreement between
the governments of the Philippines and of the United States (for the latter to send
its agents and to conduct surveillance and related activities of suspected drug
dealers in the Philippines), the consent or imprimatur of the Philippine
government to the activities of the United States Drug Enforcement Agency,
however, can be gleaned from the facts heretofore elsewhere mentioned. The
official exchanges of communication between agencies of the government of the
two countries, certifications from officials of both the Philippine
Department of Foreign Affairs and the United States Embassy, as well as the
participation of members of the Philippine Narcotics Command in the "buy-bust
operation" conducted at the residence of Minucher at the behest of Scalzo, may
be inadequate to support the "diplomatic status" of the latter but they give
enough indication that the Philippine government has given its imprimatur, if not
consent, to the activities within Philippine territory of agent Scalzo of the United
States Drug Enforcement Agency. The job description of Scalzo has tasked him
to conduct surveillance on suspected drug suppliers and, after having
ascertained the target, to inform local law enforcers who would then be expected
to make the arrest. In conducting surveillance activities on Minucher, later acting
as the poseur-buyer during the buy-bust operation, and then becoming a
principal witness in the criminal case against Minucher, Scalzo hardly can be
said to have acted beyond the scope of his official function or duties. cATDIH
All told, this Court is constrained to rule that respondent Arthur Scalzo, an
agent of the United States Drug Enforcement Agency allowed by the Philippine
government to conduct activities in the country to help contain the problem on the
drug traffic, is entitled to the defense of state immunity from suit.
WHEREFORE, on the foregoing premises, the petition is DENIED. No costs.
SO ORDERED.
Davide, Jr., C.J., Ynares-Santiago, Carpio and Azcuna, JJ., concur.
||| (Khosrow Minucher v. Court of Appeals, G.R. No. 142396, February 11, 2003)

EN BANC
[G.R. No. L-41299. February 21, 1983.]
SOCIAL SECURITY
SYSTEM, petitioner, vs. COURT OF APPEALS, DAVID B. CRUZ,
SOCORRO CONCIO CRUZ, and LORNA C. CRUZ, respondents.
The Solicitor General for petitioner.
Eriberto D. Ignacio for respondents David Cruz, Socorro Concio Cruz
and Lorna Cruz.
SYLLABUS
1.REMEDIAL LAW; CIVIL PROCEDURE; APPEAL;
FINDINGS OF FACT OF COURT OF APPEALS GENERALLY NOT SUBJECT
TO REVIEW BY SUPREME COURT. The appraisal should be left undisputed
following the general rule that factual findings of the Court of Appeals are not
subject to review by this Court, the present case not being one of the recognized
exceptions to that rule.
2.POLITICAL LAW; STATE; IMMUNITY FROM SUIT; WAIVER THEREOF BY
THE GOVERNMENT IN RESPECT OF THE SSS; EFFECT OF WAIVER. We
come now to the amenability of the SSS to the judicial action and legal
responsibility for its acts. To our minds, there should be no question on this score
considering that the SSS is a judicial entity with a personality of its own. It has
corporate powers separate and distinct from the government. SSS' own organic
act specifically provides that it can sue and be sued inCourt. These words "sue
and be sued'' embrace all civil process incident to a legal action. So that, even
assuming that the SSS, as it claims, enjoys immunity from suit as an entity
performing governmental functions, by virtue of the explicit provision of the
aforecited enabling law, the Government must be deemed to have waived
immunity in respect of the SSS, although it does not thereby concede its liability.
That statutory law has given to the private citizen a remedy for the enforcement
and protection of his rights. The SSS has been required to submit to the
jurisdiction of the Courts, subject to its right to interpose any lawful defense.
Whether the SSS performs governmental or proprietary functions thus becomes
unnecessary to belabor. For by the waiver, a private citizen may bring a suit
against it for varied objectives, such as, in this case, to obtain compensation in
damages arising from contract, and even for tort.
3.LABOR LAW AND SOCIAL LEGISLATION; SOCIAL SECURITY SYSTEM;
CONTRACTUAL LOAN AGREEMENTS; ENTERED INTO BY SSS FOR
PROFIT. The proposition that theSSS is not profit-oriented was rejected in the
case of SSS Employees' Association vs. Hon. Soriano. But even conceding that
the SSS is not, in the main, operated for profit, it cannot be denied that, in so far
as contractual loan agreements with private parties are concerned,
the SSS enters into them for profit considering that the borrowers pay interest,
which is money paid for the use of money, plus other charges.
4.ID.; ID.; EXPENDITURES; NOT CONFINED TO PAYMENT OF SOCIAL
SECURITY BENEFITS. In so far as it is argued that to hold the SSS liable for
damages would be to deplete the benefit funds available for its covered
members, suffice it to say that expenditures of the System are not confined to the
payment of the social security benefits. For example, the system also has to pay
the salaries of its personnel. Moreover, drawing a parallel with the NASSCO and
the Virginia Tobacco Administration, whose funds are in the nature of public
funds, it has been held that those funds may even be made the object of a
notice of garnishment.
5.CIVIL LAW; DAMAGES; ACTION TO RECOVER; WHEN DAMAGE IS
CAUSED A CITIZEN, THE LATTER SHOULD HAVE A RIGHT OF REDRESS.
What is of paramount importance in this controversy is that an injustice is not
perpetrated and that when damage is caused a citizen, the latter should have a
right of redress particularly when it arises from a purely private and contractual
relationship between said individual and the System.
6.ID.; ID.; NO BASIS FOR AWARD OF ACTUAL DAMAGES. As basis for the
award of actual damages, the Trial Court relied on the alleged expenses incurred
by the private respondents for the wardrobe they were supposed to use during
their trip abroad which was allegedly aborted because of the filing of the
foreclosure application by the SSS. We find the foregoing too speculative. There
could have been other reasons why the trip did not materialize. Moreover, it
appears that private respondents' passports has already expired but that they
made no effort to secure new passports. Nor did they secure the necessary visas
from the local consulates of foreign countries they intended to visit for their trip
abroad.
7.ID.; ID.; SSS NOT LIABLE FOR MORAL AND TEMPERATE DAMAGES.
Nor can the SSS be held liable for moral and temperate damages. As concluded
by the Court ofAppeals "the negligence of the appellant is not so gross as to
warrant moral and temperate damages," except that, said Court reduced those
damages by only P5,000.00 instead of eliminating them. Neither can we agree
with the findings of both the Trial Court and respondent Court that the SSS had
acted maliciously or in bad faith. The SSS wasof the belief that it was acting in
the legitimate exercise of its right under the mortgage contract in the
face of irregular payments made by the private respondents, and placed reliance
on the automatic acceleration clause in the contract. The filing alone of the
foreclosure application should not be a ground for an award of moral damages in
the same way that a clearly unfounded civil action is not among the grounds for
moral damages.
8.ID.; ID.; GRANT OF EXEMPLARY DAMAGES SET ASIDE IN THE
ABSENCE OF PROOF THAT SSS ACTED IN A WANTON, RECKLESS AND
OPPRESSIVE MANNER. With the ruling out of the compensatory, moral and
temperate damages, the grant of exemplary or corrective damages should also
be set aside. Moreover, no proof has been submitted that the SSS had acted in a
wanton, reckless and oppressive manner.
9.ID.; ID.; SSS CAN BE HELD LIABLE FOR NOMINAL DAMAGES FOR THE
PURPOSE OF SUCH DAMAGES IS TO VINDICATE OR RECOGNIZE RIGHTS
WHICH HAVE BEEN VIOLATED. However, as found by both the Trial and
Appellate Courts, there was clear negligence on the part of SSS when they
mistook the loan account of Socorro J. Cruz for that of private respondent
Socorro C. Cruz. Its attention was called to the error, but it adamantly refused to
acknowledge its mistake. The SSS can be held liable for nominal damages. This
type of damages is not for the purpose of indemnifying private respondents for
any loss suffered by them but to vindicate or recognize their rights which have
been violated or invaded by petitioner SSS.
10.LEGAL ETHICS; ATTORNEY AND CLIENT; ATTORNEY'S FEES; AWARD
THEREOF JUSTIFIED AS RESPONDENTS WERE COMPELLED TO LITIGATE
TO PROTECT THEIR INTEREST. The circumstances of the case also justify
the award of attorney's fees, as granted by the Trial and Appellate Courts,
particularly considering that private respondents were compelled to litigate for the
protection of their interests.
MAKASIAR, J., dissenting:
1.CIVIL LAW; TORTS; NEGLIGENT ACTS; COMMITTED BY OFFICERS AND
EMPLOYEES OF PETITIONER SSS AMOUNTED TO NOT SIMPLY A
CONTRACTUAL BREACH BUT TORT. To begin with, the negligent acts
committed by the officers and employees of the petitioner, Social Security
System, amounted to not simply a contractual breach but tort. For the record is
clear that petitioner's officers and employees were grossly negligent bordering on
malice or bad faith in applying for the extrajudicial foreclosure of the mortgage
contract executed in its favor by the spouses David B. Cruz and Socorro Concio-
Cruz, and that even after private respondents had brought to the attention of the
petitioner's officers and employees their mistake, they insisted on their
course of action, instead of making the necessary rectifications, which grossly
negligent and oppressive acts caused damage to private respondents.
2.ID.; ID.; LIABILITY THEREOF EXISTS DESPITE
PRESENCE OF CONTRACTUAL RELATIONS BETWEEN PARTIES AS THE
ACT THAT BREAKS CONTRACT MAY ALSO BE A TORT. The circumstance
that there was a pre-existing contractual relationship between the herein
contending parties, does not bar the tort liability of the officers and
employees ofpetitioner; because tort liability may still exist despite
presence of contractual relations as the acts that breaks the contract may also be
a tort as in this case (Air France vs. Carrascoso, L-21438, Sept. 28, 1966,18
SCRA 155, 161-169; Singson and Castillo vs. Bank of the Philippine Islands, L-
24837, June 27, 1968, 23 SCRA 1117, 1119-20).
3.ID.; QUASI-DELICT; EXTRA-CONTRACTUAL OBLIGATIONS; STATE LIABLE
WHEN IT ACTS THROUGH A SPECIAL AGENT. Consequently, a tortious act
being involved, the applicable provision of law is Article 2180 in relation to Article
2176 of the New Civil Code. Under Article 2180, ". . . The State is responsible in
like manner when it acts through a special agent; but not when the damage has
been caused by the official to whom the task done properly pertains, in which
case what is provided in Article 2176 shall be applicable.''
4.ID.; ID.; ID.; SINCE SSS DID NOT ACT THROUGH A SPECIAL AGENT, THE
FORMER CANNOT BE HELD LIABLE FOR DAMAGES CAUSED BY
TORTIOUS ACTS OF ITS OFFICERS AND EMPLOYEES WHILE IN
PERFORMANCE OF THEIR REGULAR FUNCTIONS. In the case at bar, the
petitioner Social Security Systems as the instrumentality of the State to
implement the social justice guarantee enunciated in the Constitution, did not act
through a special agent. Hence, the Social Security System cannot be liable for
the damages caused by the tortious acts of its officers and employees while in
the performance of their regular functions. The remedy therefore of private
respondents is to proceed against the guilty officers and employees of petitioner
Social Security System as mandated by Article 2176 of the New Civil Code.
5.ID.; ID.; ID.; CONCEPT OF "SPECIAL AGENT" DOES NOT APPLY TO ANY
EXECUTIVE AGENT WHO IS AN EMPLOYEE OF THE ACTIVE
ADMINISTRATION AND WHO PERFORMS FUNCTIONS WHICH ARE
INHERENT IN AND NATURALLY PERTAIN TO HIS OFFICE AND WHICH ARE
REGULATED BY LAW AND REGULATIONS. "The responsibility of the State
is limited by Article 1903 to the case wherein it acts through a special agent, . . .
so that in representation of the state and being bound to act as an agent thereof,
he executes the trust confided to him. This concept does not apply to any
executive agent who is an employee of the active administration and who on his
own responsibility performs the functions which are inherent in and naturally
pertain to his office and which are regulated by law and the regulations."
(Merritt vs. Government of the Philippine Islands, 34 Phil. 311)

6.CONSTITUTIONAL LAW; JUDICIAL POWER; RULE-MAKING;
POWER OF SUPREME COURT TO SUSPEND ITS OWN RULES TO SERVE
ENDS OF JUSTICE. Further, We have, time and again, re-stated the rule that
the Supreme Court can suspend its own rules to serve the ends of justice.
(Jose vs. CA, et al., L-38581, March 31, 1976; Phil. Blooming Mills Employees
Organization, et al., vs. PBM Co., et al., L-31195, 51 SCRA 189, 215;
Ronquillo vs. Marasigan, May 31, 1962, 5 SCRA 304, 312-313; Ordoveza vs.
Raymundo, 63 Phil. 215)
7.REMEDIAL LAW; CIVIL PROCEDURE; APPEAL; ASSIGNMENT OF ERROR;
FAILURE TO DESIGN A DEFENSE AS AN ERROR ON APPEAL IS A PURE
TECHNICALITY THAT SHOULD NOT PREVAIL OVER SUBSTANTIAL ISSUES
IN A CONTROVERSY AS SAME WOULD NOT SERVE
INTEREST OF JUSTICE. While Article 2180 of the New Civil Code was not
invoked by the petitioner as a defense, this does not prevent this Tribunal from
taking cognizance of the same. For as stressed in Ortigas, Jr. vs. Lufthansa
German Airlines (June 30, 1975, 64 SCRA 610, 633), failure to assign a defense
as an error on appeal is a pure technicality that should not prevail over the
substantial issues in a controversy as the same would not serve the
interest of justice, and "this Court is clothed with ample authority to review
matters even if they are not assigned as errors to the appeal, if it finds that our
considerations is necessary in arriving at a just decision of the case" (citing
Saura and Export Co Inc., May 31, 1963, 8 SCRA 143).
8.ID.; ID.; ID.; ID.; PRINCIPLE THAT A DEFENSE NOT EXPRESSLY PLEADED
IS DEEMED WAIVED UNLESS SUCH FAILURE SATISFACTORILY
EXPLAINED IS MERELY A GENERAL RULE SUBJECT TO EXCEPTIONS.
The principle that a defense not expressly pleaded is deemed waived unless
such failure is satisfactorily explained, is merely a general rule which is subject to
exceptions, among which is when the Court can take judicial notice of the law,
like Article 2180 of the New Civil Code.
9.ADMINISTRATIVE LAW; REVISED ADMINISTRATIVE CODE; SECTION
TWO; SCOPE OF TERM "GOVERNMENT OF THE REPUBLIC OF THE
PHILIPPINES" REFERS TO THE CORPORATE GOVERNMENTAL ENTITY
THROUGH WHICH FUNCTIONS OF THE GOVERNMENT ARE EXERCISED
THROUGHOUT THE PHILIPPINE ISLANDS. Is cannot likewise be seriously
questioned that the Social Security System is comprehended in the definition in
Section 2 of the Revised Administrative Code of the term Government of the
Republic of the Philippines . . . which refers to the corporate governmental entity
through which the functions of government are exercised through out the
Philippine Islands, including, save as the contrary appears from the context, the
various arms through which political authority is made effective in the Philippines,
whether pertaining to the central Government or to the provincial or municipal
branches or other forms of local government" and the second paragraph of said
Section 2 provides that the term "national government" refers to the central
government as distinguished from the different forms of local government. There
is nothing therein nor in the Social Security Act, as, amended, intimating that the
national government does not include the Social Security System.
10.ID.; ID.; ID.; SOCIAL SECURITY SYSTEM ALTHOUGH HAVING A
CORPORATE OR JUDICIAL PERSONALITY, IS AN INTEGRAL PART OF THE
NATIONAL OR CENTRAL GOVERNMENT. It is true that the Social Security
System has a corporate or juridical personality of its own. But this does not
remove it as an integral part of the national or central government. For such
corporate or juridical personality invested in it is more for facility and convenience
in the attainment of the objectives for which it was created by the legislative.
11.POLITICAL LAW; STATE; IMMUNITY FROM SUIT; WAIVER THEREOF
BY SSS AS AN ENTITY PERFORMING GOVERNMENTAL FUNCTIONS AND
BY THE LAW CREATING IT. Such vesting of corporate or juridical personality
in the Social Security System was never intended to destroy the shield from
liability afforded it as an integral part of the State or Government by Article
2180 of the New Civil Code. Relatedly, such corporate or juridical
personality of the Social Security System and the express provision of the law
creating the same that it can sue and be sued, have the effect of merely waiving
its immunity from suit as an entity performing governmental functions.
12.ID.; ID.; ID.; WAIVER THEREOF NOT AN ADMISSION OF ITS LIABILITY.
SSS waiver of its immunity from suit is not an admission of its liability. Such
waiver merely allows a private citizen a remedy for the enforcement and
protection of his rights, but always subject to the lawful defenses of the Social
Security System one of which is Article 2180 of the New Civil Code as
aforestated. In other words, such waiver of immunity from suit is not equivalent to
instant liability. The Social Security System can only be held liable for damages
arising from the tortious acts of its officers and employees only if it acts through a
special agent, which is not true in the case at bar.
13.ID.; ID.; ID.; SSS NOT LIABLE FOR DAMAGES BECAUSE IT PERFORMS
GOVERNMENTAL FUNCTIONS. It must be finally stressed that the Social
Security System cannot be liable for damages because it is an entity or
government performing governmental functions; hence, not profit-oriented, The
1963 doctrine in SSSEA vs. Soriano (7 SCRA 1016 [1963]) that the system is
exercising proprietary functions, is no longer controlling. For in 1969, the
distinction between constituent and ministrant functions of the Government as
laid down in the case of Bacani vs. Nacoco (100) Phil. 468 [1956]) has been
obliterated. In the case of Agricultural Credit and Cooperative Financing
Administration (ACCFA) vs. Confederation of Unions in Government
Corporations and Offices (CUGGO) (30 SCRA 469 [1969]), this Court in re-
examining the aforesaid Bacani ruling observed that the trend has been to
abandon and reject the traditional "Constituent-Ministrant" criterion in
governmental functions in favor of the more responsive postulate that the
growing complexities of modern society have rendered the traditional
classification of government functions unrealistic and obsolete.
14.ID.; ID.; ID.; ID.; FUNCTION OF SSS IS THE ESTABLISHMENT AND
MAINTENANCE OF AN ADEQUATE SOCIAL SECURITY AND SOCIAL
SERVICES. Considering therefore that the establishment and
maintenance of an adequate social security and social services, which the Social
Security System seeks to perform and achieve are functions pursuant to the
basic constitutional mandate directing the State to promote "social justice to
insure the well-being and economic security of all the people'' as well as the
police power of the State, the inescapable conclusion is that the
function of the SSS is and has always been governmental.
D E C I S I O N
MELENCIO-HERRERA, J p:
This Petition for Review on Certiorari of the
Decision of the Court of Appeals 1 stems from the following facts, as narrated by
the Trial Court, adopted by the Court of Appeals, and quoted by both
petitioner 2 and private respondents 3 :
"Sometime in March, 1963 the spouses David B. Cruz and Socorro
Concio Cruz applied for and were granted a real estate loan by
the SSS with their residential lot located at Lozada Street, Sto. Rosario,
Pateros, Rizal covered by Transfer Certificate of Title No. 2000 of the
Register of Deeds of Rizal as collateral. Pursuant to this real estate ban
said spouses executed on March 26, 1963 the corresponding real estate
mortgage originally in the amount of P39,500.00 which was later
increased to P48,000.00 covering the aforementioned property as shown
in their mortgage contract, Exhibit A and I. From the proceeds of the real
estate loan the mortgagors constructed their residential house on the
mortgaged property and were furnished by the SSS with a passbook to
record the monthly payments of their amortizations (Exhibits B and B-1).
The mortgagors, plaintiffs herein, complied with their monthly payments
although there were times when delays were incurred in their monthly
payments which were due every first five (5) days of the month (Exhibits
3-A to 3-N). On July 9, 1968, defendant SSS filed an application with the
Provincial Sheriff of Rizal for the foreclosure of the real estate mortgage
executed by the plaintiffs on the ground, among others:
'That the conditions of the mortgage have been broken
since October, 1967 with the default on the part of the mortgagor
to pay in full the installments then due and payable on the
principal debt and the interest thereon, and, all of the monthly
installments due and payable thereafter up to the present date; . .
.
'That by the terms of the contract herein above referred to,
the indebtedness to the mortgagee as of June, 1968 amounts to
Ten Thousand Seven Hundred Two Pesos & 58/100
(P10,702.58), Philippine Currency, excluding interests thereon,
plus 20% of the total amount of the indebtedness as attorney's
fees, also secured by the said mortgage." (Exhibit "C")
"Pursuant to this application for foreclosure, the notice of the Sheriff's
Sale of the mortgaged property was initially published in the Sunday
Chronicle in its issue ofJuly 14, 1968 announcing the sale at public
auction of the said mortgaged property. After this first publication of the
notice, and before the second publication of the notice, plaintiff herein
thru counsel formally wrote defendant SSS, a letter dated July 19, 1968
and received on the same date by said entity demanding, among others,
for said defendant SSS to withdraw the foreclosure and discontinue the
publication of the notice of sale of their property claiming that plaintiffs
were up-to-date in the payment of their monthly amortizations (Exhibits
"E" and "E-1"). In answer to this letter defendant SSS sent a telegram to
Atty. Eriberto Ignacio requesting him to come to their office for a
conference. This telegram was received by said counsel on July 23,
1968 (Exhibit "G" and "G-1). To this telegraphic answer, Atty. Ignacio
sent a telegraphic reply suggesting instead that a
representative of the SSS be sent to him because his clients were the
aggrieved parties (Exhibit "G-2"). Nothing came outof the telegraphic
communications between the parties and the second and third
publications of the notice of foreclosure were published successively in
the Sunday Chronicle in its issues of July 21 and 28, 1968 (Exhibits "N-
1" and "0-1")." 4

On July 24, 1968, the Cruz spouses, together with their daughter Lorna C. Cruz,
instituted before the Court of First Instance of Rizal an action for damages and
attorney's fees against the Social Security System (SSS) and the Provincial
Sheriff of Rizal alleging, among other things, that they had fully and religiously
paid their monthly amortizations and had not defaulted in any payment. cdrep
In its Answer, with counterclaim, the SSS stressed its right to foreclose the
mortgage executed in its favor by private respondents by virtue of the automatic
acceleration clause provided in the mortgage contract, even after private
respondents had paid their amortization installments. In its counterclaim,
the SSS prayed for actual and other damages, as well as attorney's fees, for
malicious and baseless statements made by private respondents and published
in the Manila Chronicle.
On September 23, 1968, the Trial Court enjoined the SSS from holding the sale
at public auction of private respondent's property upon their posting of a
P2,000.00 bond executed in favor of the SSS.
The Trial Court rendered judgment on March 5, 1971, the dispositive
portion of which reads:
"WHEREFORE, judgment is rendered against defendant SSS, directing
it to pay plaintiffs the following amounts:
(a)P2,500.00 as actual damage;
(b)P35,000.00 as moral damage;
(c)P10,000.00 as exemplary or corrective damages; and
(d)P5,000.00 as attorney's fees.
Defendant SSS shall further pay the costs." 5
In respect of the moral and temperate damages awarded, the Trial Court stated:
"With respect to moral and temperate damages, the Court holds that the
first publication of the notice was made in good faith but committed by
defendant SSS in gross negligence considering the personnel at its
command and the ease with which verifications of the actual defaulting
mortgagors may be made. On this initial publication of the
notice of foreclosure (Exhibits "M" and "M-1"), the Court believes
plaintiffs are entitled to the amount of P5,000.00. The second
publication of the notice of foreclosure is another matter. There was
already notice by plaintiffs to defendant SSS that there was no reason
for the foreclosure of their mortgaged property as they were never in
default. Instead of taking any corrective measure to rectify its error,
defendant SSS adopted a position of righteousness and followed the
same course of action contending that no error has been committed.
This act of defendant indeed was deliberate, calculated to cow plaintiffs
into submission, and made obviously with malice. On this score,
the Court believes defendant SSS should pay and indemnify plaintiffs
jointly in the sum of P10,000.00. Lastly, on the third publication of the
notice of foreclosure, the Court finds this continued publication an
outright disregard for the reputation and standing of plaintiffs. The
publication having reached a bigger segment of society and also done
with malice and callous disregard for the rights of its clients,
defendant SSS should compensate plaintiffs jointly in the
sum of P20,000.00. All in all, plaintiffs are entitled to P35,000.00 by
way of moral damages." 6
On appeal, the Court of Appeals affirmed the lower Court judgment in a Decision
promulgated on March 14, 1975, but upon SSS's Motion for Reconsideration,
modified the judgment by the elimination of the P5,000.00 moral damages
awarded on account of the initial publication of the foreclosure notice. To
quote: LexLib
xxx xxx xxx
After a re-examination of the evidence, we find that the
negligence of the appellant is not so gross as to warrant moral and
temperate damages. The amount ofP5,000.00 should be deducted
from the total damages awarded to the plaintiffs.
"WHEREFORE, the decision promulgated on March 14, 1975 is hereby
maintained with the sole modification that the amount of P5,000.00
awarded on account of the initial publication is eliminated so that the
said amount should be deducted from the total damages awarded to the
plaintiffs.
SO ORDERED." 7
In so far as exemplary and corrective damages are concerned,
the Court of Appeals had this to say.
"The Court finds no extenuating circumstances to mitigate the
irresponsible action of defendant SSS and for this reason, said
defendant should pay exemplary and corrective damages in the
sum of P10,000.00 . . ."
Upon denial of its Motion for Reconsideration by respondent Court, the SSS filed
this Petition alleging:
"I.Respondent Court of Appeals erred in not finding that under Condition
No. 10 of the Mortgage contract, which is a self-executing, automatic
acceleration clause, all amortizations and obligations of the mortgagors
become ipso jure due and demandable if they at any time fail to pay
any of the amortizations or interest when due;
"II.Respondent Court of Appeals erred in holding that a previous notice
to the mortgagor was necessary before the mortgage could be
foreclosed;
"III.Respondent Court of Appeals erred in not holding that, assuming that
there was negligence committed by subordinate
employees of the SSS in mistaking 'Socorro C. Cruz' for 'Socorro J.
Cruz' as the defaulting borrower, the fault cannot be attributed to
the SSS, much less should the SSS be made liable for their acts done
without its knowledge and authority;
"IV.Respondent Court of Appeals erred in holding that there is no
extenuating circumstance to mitigate the liability of petitioner;
"V.Respondent Court of Appeals erred in not holding that petitioner is
not liable for damages not being a profit-oriented governmental
institution but one performing governmental functions." 8
For failure of the First Division to obtain concurrence of the five remaining
members (Justices Plana and Gutierrez, Jr. could take no part), the case was
referred to the Court en banc.
The pivotal issues raised are: (1) whether the Cruz spouses had, in fact, violated
their real estate mortgage contract with the SSS as would have warranted the
publications ofthe notices of foreclosure; and (2) whether or not the SSS can be
held liable for damages.
The first issue revolves around the question of appreciation of the evidence by
the lower Court as concurred in by the Court of Appeals. The appraisal should be
left undisturbed following the general rule that factual
findings of the Court of Appeals are not subject to review by this Court, the
present case not being one of the recognized exceptions to that
rule. 9 Accordingly, we are upholding the finding of the Court of Appeals that
the SSS application for foreclosure was not justified, particularly considering that
the real estate loan of P48,000.00 obtained by the Cruzes in March, 1963, was
payable in 15 years with a monthly amortization of P425.18, and that as of July
14, 1968, the date of the first notice of foreclosure and sale, the outstanding
obligation was still P38,875.06 and not P10,701.58, as published. cdrep
"The appellant was not justified in applying for the extra-judicial
foreclosure of the mortgage contract executed in its favor by the
spouses, David B. Cruz and Socorro Concio-Cruz. Exh. 'A'. While it is
true that the payments of the monthly installments were previously not
regular, it is a fact that as of June 30, 1968 the appellee, David B. Cruz
and Socorro Concio-Cruz were up-to-date and current in the
payment of their monthly installments. Having accepted the prior late
payments of the monthly installments, the appellant could no longer
suddenly and without prior notice to the mortgagors apply for the extra-
judicial foreclosure of the mortgage in July 1968."10
A similar conclusion was reached by the trial Court.
"Defendant's contention that there was clerical error in the amount of the
mortgage loan due as of June, 1968 as per their application for
foreclosure of real estate mortgage is a naive attempt to justify an
untenable position. As a matter of fact plaintiffs were able to establish
that the mortgagor who actually committed the violation of her mortgage
loan was a certain 'Socorro J. Cruz' who was in arrears in the
amount of P10,702.58 at the time the application for foreclosure of real
estate mortgage was filed (Exhibits "BB" and "EE"). Defendant
mortgagee must have committed an error in picking the record of plaintiff
'Socorro C. Cruz' instead of the record of 'Socorro J. Cruz'.
Defendant SSS, however, denied having committed any error and insists
that their motion for foreclosure covers the real estate
mortgageof spouses David E. Cruz and Socorro C. Cruz. This Court is
nonetheless convinced that the foreclosure proceedings should have
been on the real estate mortgage of'Socorro J. Cruz' who was in arrears
as of June, 1968 in the amount of P10,701.58, the exact amount
mentioned in the application for foreclosure of real estate mortgage by
defendant SSS." 11
We come now to the amendability of the SSS to judicial action and legal
responsibility for its acts. To our minds, there should be no question on this score
considering that theSSS is a juridical entity with a personality of its own. 12 It has
corporate powers separate and distinct from the Government. 13 SSS' own
organic act specifically provides that it can sue and be sued in Court. 14 These
words "sue and be sued" embrace all civil process incident to a legal
action. 15 So that, even assuming that the SSS, as it claims, enjoys immunity
from suit as an entity performing governmental functions, by virtue of the explicit
provision of the aforecited enabling law, the Government must be deemed to
have waived immunity in respect of the SSS, although it does not thereby
concede its liability. That statutory law has given to the private citizen a remedy
for the enforcement and protection of his rights. The SSS thereby has been
required to submit to the jurisdiction of the Courts, subject to its right to interpose
any lawful defense. Whether the SSSperforms governmental or proprietary
functions thus becomes unnecessary to belabor. For by that waiver, a private
citizen may bring a suit against it for varied objectives, such as, in this case, to
obtain compensation in damages arising from contract 16 , and even for tort.

A recent case squarely in point anent the principle, involving the National Power
Corporation, is that of Rayo vs. Court of First Instance of Bulacan, 110 SCRA
457 (1981), wherein this Court, speaking through Mr. Justice Vicente Abad
Santos, ruled:
"It is not necessary to write an extended dissertation on whether or not
the NPC performs a governmental function with respect to the
management and operationof the Angat Dam. It is sufficient to say that
the government has organized a private corporation, put money in it and
has allowed it to sue and be sued in any courtunder its charter. (R.A. No.
6395, Sec. 3[d]). As a government owned and controlled corporation, it
has a personality of its own, distinct and separate from that of the
Government. (See National Shipyards and Steel Corp. vs. CIR, et al., L-
17874, August 31, 1963, 8 SCRA 781). Moreover, the charter provision
that the NPC can 'sue and be sued in any court' is without qualification
on the cause of action and accordingly it can include a tort claim such as
the one instituted by the petitioners."
The proposition that the SSS is not profit-oriented was rejected in the
case of SSS Employees' Association vs. Hon. Soriano. 17 But even conceding
that the SSS is not, in the main, operated for profit, it cannot be denied that, in so
far as contractual loan agreements with private parties are concerned,
the SSS enters into them for profit considering that the borrowers pay interest,
which is money paid for the use of money, plus other charges. Cdpr
In so far as it is argued that to hold the SSS liable for damages would be to
deplete the benefit funds available for its covered members, suffice it to say, that
expenditures ofthe System are not confined to the payment of social security
benefits. For example, the System also has to pay the salaries of its personnel.
Moreover, drawing a parallel with the NASSCO and the Virginia Tobacco
Administration, whose funds are in the nature of public funds, it has been held
that those funds may even be made the object of a noticeof garnishment. 18
What is of paramount importance in this controversy is that an injustice is not
perpetrated and that when damage is caused a citizen, the latter should have a
right of redress particularly when it arises from a purely private and contractual
relationship between said individual and the System.
We find, however, that under the circumstances of the case, the SSS cannot be
held liable for the damages as awarded by the Trial Court and the Appellate
Tribunal.
As basis for the award of actual damages, the Trial Court relied on the alleged
expenses incurred by private respondents for the wardrobe they were supposed
to use during their trip abroad, which was allegedly aborted because of the
filing of the foreclosure application by the SSS. We find the foregoing too
speculative. There could have been other reasons why the trip did not
materialize. Moreover, it appears that private respondents' passports had already
expired but that they made no effort to secure new passports. 19 Nor did they
secure the necessary visas from the local consulates of foreign countries they
intended to visit for their trip abroad. 20
Nor can the SSS be held liable for moral and temperate damages. As concluded
by the Court of Appeals "the negligence of the appellant is not so gross as to
warrant moral and temperate damages", 21 except that, said Court reduced those
damages by only P5,000.00 instead of eliminating them. Neither can we agree
with the findings of both the TrialCourt and respondent Court that the SSS had
acted maliciously or in bad faith. The SSS was of the belief that it was acting in
the legitimate exercise of its right under the mortgage contract in the
face of irregular payments made by private respondents, and placed reliance on
the automatic acceleration clause in the contract. The filing alone ofthe
foreclosure application should not be a ground for an award of moral damages in
the same way that a clearly unfounded civil action is not among the grounds for
moral damages. 22
With the ruling out of compensatory, moral and temperate damages, the
grant of exemplary or corrective damages should also be set aside. 23 Moreover,
no proof has been submitted that the SSS had acted in a wanton, reckless and
oppressive manner. 24
However, as found by both the Trial and Appellate Courts, there was clear
negligence on the part of SSS when they mistook the loan
account of Socorro J. Cruz for that ofprivate respondent Socorro C. Cruz. Its
attention was called to the error, but it adamantly refused to acknowledge its
mistake. The SSS can be held liable for nominal damages. This type of damages
is not for the purpose of indemnifying private respondents for any loss suffered
by them but to vindicate or recognize their rights which have been violated or
invaded by petitioner SSS. 25
The circumstances of the case also justify the award of attorney's fees, as
granted by the Trial and Appellate Courts, particularly considering that private
respondents were compelled to litigate for the prosecution of their interests. 26
WHEREFORE, the judgment sought to be reviewed is hereby modified in that
petitioner SSS shall pay private respondents: P3,000.00 as nominal damages;
and P5,000.00 as attorney's fees. prcd
Costs against petitioner Social Security System.
SO ORDERED.
Teehankee, Concepcion, Jr., Guerrero, Abad Santos, De Castro,
Vasquez and Relova, JJ., concur.
Fernando, C.J., in the result.
Separate Opinions
AQUINO, J., concurring:
I concur. The award of moral damages is not justified under arts. 2219 and
2220 of the Civil Code. I vote to award the private respondents the additional
sum of P2,000 as litigation expenses.
Plana, Escolin * and Gutierrez, Jr.,
**
JJ., took no part.
MAKASIAR, J., dissenting:
I dissent.
I
To begin with, the negligent acts committed by the officers and employees of the
petitioner, Social Security System, amounted to not simply a contractual breach
but tort. For the record is clear that petitioner's officers and employees were
grossly negligent bordering on malice or bad faith in applying for the extrajudicial
foreclosure of the mortgage contract executed in its favor by the spouses David
B. Cruz and Socorro Concio-Cruz, and that even after private respondents had
brought to the attention of the petitioner's officers and employees their mistake,
they insisted on their course of action, instead of making the necessary
rectifications, which grossly negligent and oppressive acts caused damage to
private respondents. As found by the Court of Appeals:
"The appellant was not justified in applying for the extra-judicial
foreclosure of the mortgage contract executed in its favor by the spouses
David B. Cruz and Socorro Concio-Cruz, Exh. 'A'. While it is true that the
payments of the monthly installments were previously not regular, it is a
fact that as of June 30, 1968 the appellees, David B. Cruz and Socorro
Concio-Cruz were up-to-date and current in the payment of their monthly
installments. Having accepted the prior late payments of the monthly
installments, the appellant could no longer suddenly and without prior
notice to the mortgagors apply for the extra-judicial foreclosure of the
mortgage in July, 1968.
"It is obvious that the appellant applied for the extra-judicial
foreclosure of the mortgage in question because of the gross
negligence of its employees. This negligence was aggravated when the
appellant, after being informed of the error, insisted on proceeding with
the extra-judicial foreclosure by invoking alleged violations of the
mortgage contract. But these violations are either too minor to warrant
the drastic step of foreclosure or were deemed condoned when the
appellant accepted late payments prior to June 30, 1968. Hence the
trial court did not err in concluding that 'the act of defendant indeed was
deliberate, calculated to cow plaintiffs into submission and made
obviously with malice' " (p. 54, rec.; emphasis supplied).
The circumstance that there was a pre-existing contractual relationship between
the herein contending parties, does not bar the tort liability of the officers and
employees ofpetitioner; because tort liability may still exist despite
presence of contractual relations as the act that breaks the contract may also be
a tort, as in this case (Air France vs. Carrascoso, L-21438, Sept. 28, 1966, 18
SCRA 155, 168-169; Singson & Castillo vs. Bank of the Philippine Islands, L-
24837, June 27, 1968, 23 SCRA 1117, 1119-20).
Consequently, a tortious act being involved, the applicable provision of law is
Article 2180 in relation to Article 2176 of the New Civil Code. Under Article 2180,
". . . The State is responsible in like manner when it acts through a special agent;
but not when the damage has been caused by the official to whom the task done
properly pertains, in which case what is provided in Article 2176 shall be
applicable."
In the case at bar, the petitioner Social Security System as the
instrumentality of the State to implement the social justice guarantee enunciated
in the Constitution, did not act through a special agent. Hence, the Social
Security System cannot be liable for the damages caused by the tortious
acts of its officers and employees while in the performanceof their regular
functions. The remedy therefore of private respondents is to proceed against the
guilty officers and employees of petitioner Social Security System as mandated
by Article 2176 of the New Civil Code. cdll
For as held in the leading case of Merritt vs. Government of the Philippine
Islands (34 Phil. 311).
"The responsibility of the State is limited by Article 1903 to the case
wherein it acts through a special agent, . . . so that in
representation of the state and being bound to act as an agent thereof,
he executes the trust confided to him. This concept does not apply to
any executive agent who is an employee of the active administration and
who on his own responsibility performs the functions which are inherent
in and naturally pertain to his office and which are regulated by law and
the regulations."

While Article 2180 of the New Civil Code was not invoked by the petitioner as a
defense, this does not prevent this Tribunal from taking cognizance of the same.
For as stressed in Ortigas, Jr. vs. Lufthansa German Airlines (June 30, 1975, 64
SCRA 610, 633), failure to assign a defense as an error on appeal is a pure
technicality that should not prevail over the substantial issues in a controversy as
the same would not serve the interest of justice, and: "this Court is clothed with
ample authority to review matters even if they are not assigned as errors in
the appeal, if it finds that our consideration is necessary in arriving at a just
decision of the case" (citing Saura & Export Co., Inc., May 31, 1963, 8 SCRA
143). Further, We have, time and again, re-stated the rule that the
Supreme Court can suspend its own rules to serve the ends of justice (Jose vs.
C.A., et al., L-38581, March 31, 1976; Phil. Blooming Mills Employees
Organization, et al. vs. PBM Co., et al., L-31195, 51 SCRA 189, 215;
Ronquillo vs. Marasigan, May 31, 1962, 5 SCRA 304, 312-313; Ordoveza vs.
Raymundo, 63 Phil. 275).
The principle that a defense not expressly pleaded is deemed waived unless
such failure is satisfactorily explained, is merely a general rule which is subject to
exceptions, among which is when the Court can take judicial notice of such
defense. In this case, We can take judicial notice of the law, like Article
2180 of the New Civil Code. It must be emphasized that the courts have as much
duty as the Commission on August to protect the public treasury from being
mulcted or raided illegally. And this becomes more imperative considering that a
substantial portion of the funds of the petitioner comes from the
contributions of employees and workers in private firms and is therefore in the
nature of a trust fund to be expended only for their welfare and benefit, with the
government merely giving some subsidy. Any amount of damages illegally
assessed against the Social Security System will deplete the benefit funds
available to its covered members for the contingencies of sickness, disability,
retirement or death. LLpr
It cannot likewise be seriously questioned that the Social Security System is
comprehended in the definition in Section 2 of the Revised Administrative
Code of the term "Government of the Republic of the Philippines . . . which refers
to the corporate governmental entity through which the functions of government
are exercised throughout the Philippine Islands, including, save as the contrary
appears from the context, the various arms through which political authority is
made effective in the Philippines, whether pertaining to the central Government
or to the provincial or municipal branches or other forms of local government."
And the second paragraph of said Section 2 provides that the term "national
government" refers to the central government as distinguished from the different
forms of local government. There is nothing therein nor in the Social Security Act,
as amended, intimating that the national government does not include the Social
Security System.
It is true that the Social Security System has a corporate or juridical
personality of its own. But this does not remove it as an integral part of the
national or central government. For such corporate or juridical personality
invested in it is more for facility and convenience in the attainment of the
objectives for which it was created by the legislative. Such vesting of corporate or
juridical personality in the Social Security System was never intended to destroy
the shield from liability afforded it as an integral part of the State or Government
by Article 2180 of the New Civil Code. Relatedly, such corporate or juridical
personality of the Social Security System and the express provision of the law
creating the same that it can sue and be sued, have the effect of merely waiving
its immunity from suit as an entity performing governmental functions. Such
waiver of its immunity from suit is not an admission of its liability. Such waiver
merely allows a private citizen a remedy for the enforcement and protection of his
rights, but always subject to the lawful defenses of the Social Security System
one of which is Article 2180 of the New Civil Code as aforestated. In other words,
such waiver of immunity from suit is not equivalent to instant liability. The Social
Security System can only be held liable for damages arising from the tortious
acts of its officers and employees only if it acts through a special agent, which is
not true in the case at bar.
II
It must be finally stressed that the Social Security System cannot be liable for
damages because it is an entity of government performing governmental
functions; hence, not profit-oriented. The 1963 doctrine in SSSEA vs. Soriano (7
SCRA 1016 [1963]) that the system is exercising proprietary functions, is no
longer controlling.
For in 1969, the distinction between constituent and ministrant functions of the
Government as laid down in the case of Bacani vs. Nacoco (100 Phil. 468 [1956])
has been obliterated. In the case of Agricultural Credit and Cooperative
Financing Administration (ACCFA) vs. Confederation of Unions in Government
Corporations and Offices (CUGCO) [30 SCRA 649 (1969)], this Court in re-
examining the aforesaid Bacani ruling observed that the trend has been to
abandon and reject the traditional "Constituent-Ministrant" criterion in
governmental functions in favor of the more responsive postulate that the
growing complexities of modern society have rendered the traditional
classification ofgovernment functions unrealistic and obsolete.
WE held in the ACCFAcase, thus: LibLex
"The growing complexities of modern society, however, have rendered
this traditional classification of the functions of government quite
unrealistic, not to say obsolete. The areas which used to be left to
private enterprise and initiative and which the government was called
upon to enter optionally, and only 'because it was better equipped to
administer for the public welfare than is any private individual or
groups of individuals,' continue to lose their well-defined boundaries and
to be absorbed within activities that the government must have
undertaken in its sovereign capacity if it is to meet the increasing social
challenges of the times. Here as almost everywhere, else, the tendency
is undoubtedly towards a greater socialization of economic forces.
Here of course, this development was envisioned indeed adopted as a
national policy, by the Constitution itself in its declaration of principle
concerning the promotion of social justice."
Chief Justice Fernando, then Associate Justice, in his concurring opinion
stressed that:
"The decision reached by this Court so ably given expression in the
opinion of Justice Makalintal, characterized with vigor, clarity and
precision, represents what for me is a clear tendency not to be
necessarily bound by our previous pronouncements on what activities
partake of a nature that is governmental. Of even greater significance,
there is a definite rejection of the 'constituent-ministrant'
criterion of governmental functions, followed in Bacani vs. National
Coconut Corporation. That indeed is cause for gratification. For me at
least, there is again full adherence to the basic philosophy of the
Constitution as to the extensive and vast power lodged in our
government to cope with the social and economic problems that even
now sorely beset us. There is therefore full concurrence on my part to
the opinion of thecourt, distinguished by its high quality of juristic
craftsmanship' (pp. 666-667).
xxx xxx xxx
"4.With the decision reached by us today, the government is freed from
the compulsion exerted by the Bacani doctrine of the 'constituent-
ministrant' test as a criterion for the type of activity in which it may
engage. It constricting effect is consigned to oblivion. No doubts or
misgivings need assail us that government efforts to promote the public
weal, whether through regulatory legislation of vast scope and emplitude
or through the undertaking of business activities, would have to face a
searching and rigorous scrutiny. It is clear that their legitimacy cannot be
challenged on the ground alone of their being offensive to the
implications of the laissez-faire concept. Unless there be a repugnancy
then to the limitations expressly set forth in the Constitution to protect
individual rights, the government enjoys a much wider latitude of action
as to the means it chooses to cope with grave social and economic
problems that urgently press for solution. For me, at least, that is to
manifest deference to the philosophy of our fundamental law. Hence my
full concurrence, as announced at the outset" (pp. 682-683, emphasis
supplied).
The 1935 Constitution declared:
"Sec. 5.The promotion of social justice to insure the well-being and
economic security of all the people should be the concern of the State"
(Art. II, Declaration ofPrinciples).
The present 1973 Constitution provides under its Declaration of Principles and
State Policies (Article II), that
"The State shall promote social justice to ensure the dignity, welfare, and
security of all the people. Towards this end, the State shall regulate the
acquisition, ownership, use, enjoyment, and disposition of private
property, and equitably diffuse property ownership and profits" (Section
6);
and
"The State shall establish, maintain, and ensure adequate social
services in the field of education, health, housing, employment, welfare,
and social security to guarantee the enjoyment by the people of a decent
standard of living" (Section 7).
The strictly governmental function of the SSS is spelled out unmistakably in
Section 2 of R.A. No. 1161 entitled "The Social Security Act of 1954," thus:
"It is hereby declared to be the policy of the Republic of the Philippines
to develop, establish gradually and perfect a social security system
which shall be suitable to the needs of the people throughout the
Philippines, and shall provide protection against the hazards of disability,
sickness, old age and death."

As stated in the Explanatory Note to the Bill that became R.A. No. 1161, the
Social Security Act of 1954:
"It is a recognized principle in free societies that the State must help its
citizens to make provision for emergencies beyond their control, such as
unemployment, sickness requiring expensive medical treatment, and
similar emergencies to a greater or lesser degree by means of social
security legislation in a variety of forms."
And this Court, in Roman Catholic Archbishop of Manila vs. SSS (L-15045, 1
SCRA 10 [1961]), declared that "the Social Security Law was enacted pursuant
to the 'policy of the Republic to develop, establish gradually and perfect a social
security system which shall be suitable to the needs of the people throughout the
Philippines and provide protection to employees against the hazards of disability,
sickness, old age and death' (Sec. 2, Republic Act No. 1161, as amended). Such
enactment is a legitimate exercise ofthe police power. It affords protection to
labor, especially to working women and minors, and is in full accord with the
constitutional provisions on the 'promotion of social justice to insure the well
being and economic security of all the people."
It is interesting to note that aforesaid pronouncement of this Court was
incorporated in the Social Security Act (R.A. 1161) by Presidential Decree No.
24 issued on October 19, 1972. Thus, as amended by said Decree, its section 2
now reads: "It is the policy of the Republic of the Philippines to establish,
develop, promote and perfect a sound viable tax-exempt social security service
suitable to the needs of the people throughout the Philippines, which shall
provide to covered employees and their families protection against the
hazards of disability, sickness, old age, and death, with a view to promoting their
well-being in the spirit of social justice" (emphasis supplied). And one of its
whereases expressly states that "the measure is necessary to effect reforms
in SSS operations and to revitalize its structure as an important agency in the
promotion of the social and economic development programs of the
Government; . . ." (emphasis supplied).
Considering therefore that the establishment and maintenance of an adequate
social security and social services, which the Social Security System seeks to
perform and achieve are functions pursuant to the basic constitutional mandate
directing the State to promote "social justice to insure the well-being and
economic security of all the people" (1935 Constitution) or "to insure the dignity,
welfare and security of all the people" as well as the police power of the State,
the inescapable conclusion is that the function of the SSS is and has always
been governmental. LibLex
It thus becomes clear that petitioner Social Security System, under the obtaining
facts and applicable laws in the case, is not liable for the damages caused to
private respondents by the tortious acts of its officers and employees to whom
the task done properly pertained. prLL
A contrary rule as that enunciated in the majority opinion invites conspiracy
between officials and employees of the Social Security System and private
parties to create financial liabilities against the System. Its funds are public funds
and more importantly trust funds, which must be protected.
||| (SSS v. Court of Appeals, G.R. No. L-41299, February 21, 1983)

EN BANC
[G.R. No. L-15751. January 28, 1961.]
BUREAU OF PRINTING, SERAFIN SALVADOR and MARIANO
LEDESMA, petitioners, vs. THE BUREAU OF PRINTING
EMPLOYEES ASSOCIATION (NLU), PACIFICO ADVINCULA,
ROBERTO MENDOZA, PONCIANO ARGANDA and TEODULO
TOLERAN, respondents.
Solicitor General for petitioner.
Eulogio Lerum for respondents.
SYLLABUS
1.JURISDICTION; FUNCTIONS OF BUREAU OF PRINTING NOT
EXCLUSIVELY PROPRIETARY IN NATURE; COURT OF INDUSTRIAL
RELATIONS WITHOUT JURISDICTION OVER UNFAIR LABOR PRACTICE
BROUGHT AGAINST THE BUREAU. The Bureau of Printing is primarily a
service bureau and is not engaged in business or occupation for pecuniary
benefit. Although it receives outside jobs and many of its employees are paid for
overtime work on regular working days and on holidays, these facts do not justify
the conclusion that its functions are "exclusively proprietary in nature." Hence,
the Court of Industrial Relations is without jurisdiction to hear and determine
complaints for unfair labor practice filed against the Bureau of Printing.
2.ADMINISTRATIVE LAW; SUITS AGAINST THE STATE; BUREAU OF
PRINTING NOT SUBJECT TO SUIT WITHOUT ITS CONSENT. As an office
of the Government, without any corporate or juridical personality, the Bureau of
Printing cannot be sued without its consent, much less over its objection. (Angat
River Irrigation System, et. al. vs. Angat River Workers' Union, et. al., 102 Phil.,
789.)
D E C I S I O N
GUTIERREZ DAVID, J p:
This is a petition for certiorari and prohibition with preliminary injunction to annul
certain orders of the respondent Court of Industrial Relations and to restrain it
from further proceeding in the action for unfair labor practice pending before it on
the ground of lack of jurisdiction. Giving due course to the petition, this Court
ordered the issuance of the writ of preliminary injunction prayed for without bond.
The action in question was upon complaint of the respondent Bureau of
Printing Employees Association (NLU), Pacifico Advincula, Roberto Mendoza,
Ponciano Arganda and Teodulo Toleran filed by an acting prosecutor of the
Industrial Court against herein petitioners Bureau of Printing, Serafin Salvador,
the Acting Secretary of the Department of General Services, and Mariano
Ledesma, the Director of the Bureau of Printing. The complaint alleged that
Serafin Salvador and Mariano Ledesma have been engaging in unfair labor
practice by interfering with, or coercing the employees of the Bureau of Printing,
particularly the members of the complaining association, in the exercise of their
right to self-organization and discriminating in regard to hire and tenure of their
employment in order to discourage them from pursuing their union activities.
Answering the complaint, the petitioners Bureau of Printing, Serafin Salvador and
Mariano Ledesma denied the charges of unfair labor practices attributed to them
and, by way of affirmative defenses, alleged, among other things, that
respondents Pacifico Advincula, Roberto Mendoza, Ponciano Arganda and
Teodulo Toleran were suspended pending result of an administrative
investigation against them for breach of Civil Service rules and regulations; that
the Bureau of Printing has no juridical personality to sue and be sued; that said
Bureau of Printing is not an industrial concern engaged for the purpose of gain
but is an agency of the Republic performing governmental functions. For relief,
they prayed that the case be dismissed for lack of jurisdiction. Thereafter, before
the case could be heard, petitioners filed an "Omnibus Motion" asking for a
preliminary hearing on the question of jurisdiction raised by them in their answer
and for suspension of the trial of the case on the merits pending the
determination of such jurisdictional question. The motion was granted, but after
hearing, the trial judge of the Industrial Court in an order dated January 27, 1959
sustained the jurisdiction of the court on the theory that the functions of the
Bureau of Printing are "exclusively proprietary in nature," and, consequently,
denied the prayer for dismissal. Reconsideration of this order having been also
denied by the court en banc, the petitioners brought the case to this court
through the present petition for certiorari and prohibition.
We find the petition to be meritorious.
The Bureau of Printing is an office of the Government created by the
Administrative Code of 1916 (Act No. 2657). As such instrumentality of the
Government, it operates under the direct supervision of the Executive Secretary,
Office of the President, and is "charged with the execution of all printing and
binding, including work incidental to those processes, required by the National
Government and such other work of the same character as said Bureau may, by
law or by order of the (Secretary of Finance) Executive Secretary, be authorized
to undertake . . .." (Sec. 1644, Rev. Adm. Code.) It has no corporate existence,
and its appropriations are provided for in the General Appropriations Act.
Designed to meet the printing needs of the Government, it is primarily a service
bureau and is obviously, not engaged in business or occupation for pecuniary
profit.
It is true, as stated in the order complained of, that the Bureau of Printing
receives outside jobs and that many of its employees are paid for overtime work
on regular working days and on holidays, but these facts do not justify the
conclusion that its functions are "exclusively proprietary in nature." Overtime
work in the Bureau of Printing is done only when the interest of the service so
requires (sec. 566, Rev. Adm. Code). As a matter of administrative policy, the
overtime compensation may be paid, but such payment is discretionary with the
head of the Bureau depending upon its current appropriations, so that it cannot
be the basis for holding that the functions of said Bureau are wholly proprietary in
character. Anent the additional work it executes for private persons, we find that
such work is done upon request, as distinguished from those solicited, and only
"as the requirements of Government work will permit" (sec. 1654, Rev. Adm.
Code), and "upon terms fixed by the Director of Printing, with the approval of the
Department Head" (sec. 1665, id.). As shown by the uncontradicted evidence of
the petitioners, most of these works consist of orders for greeting cards during
Christmas from government officials, and for printing of checks of private banking
institutions. On those greeting cards, the Government seal, of which only the
Bureau of Printing is authorized to use, is embossed, and on the bank checks,
only the Bureau of Printing can print the reproduction of the official documentary
stamps appearing thereon. The volume of private jobs done, in comparison with
government jobs, is only one-half of 1 per cent, and in computing the costs for
work done for private parties, the Bureau does not include profit, because it is not
allowed to make any. Clearly, while the Bureau of Printing is allowed to
undertake private printing jobs, it cannot be pretended that it is thereby an
industrial or business concern. The additional work it executes for private parties
is merely incidental to its function, and although such work may be deemed
proprietary in character, there is no showing that the employees performing said
proprietary function are separate and distinct from those employed in its general
governmental functions.
From what has been stated, it is obvious that the Court of Industrial Relations did
not acquire jurisdiction over the respondent Bureau of Printing, and is thus
devoid of any authority to take cognizance of the case. This Court has already
held in a long line of decisions that the Industrial Court has no jurisdiction to hear
and determine the complaint for unfair labor practice filed against institutions or
corporations not organized for profit and, consequently, not an industrial or
business organization. This is so because the Industrial Peace Act was intended
to apply only to industrial employment, and to govern the relations between
employers engaged in industry and occupations for purposes of gain, and their
industrial employees. (University of the Philippines, et al. vs. CIR, et al., G.R No.
L-15416, April 28, 1960; University of Sto. Tomas vs. Villanueva, et al., G.R No.
L-13282, April 22, 1960; See also the cases cited therein.)
Indeed, as an office of the Government, without any corporate or juridical
personality, the Bureau of Printing cannot be sued. (Sec. 1, Rule 3, Rules of
Court.) Any suit, action or proceeding against it, if it were to produce any effect,
would actually be a suit, action or proceeding against the Government itself, and
the rule is settled that the Government cannot be sued without its consent, much
less over its objection. (See Metran vs. Paredes, 45 Off. Gaz., 2835; Angat River
Irrigation System, et al. vs. Angat River Workers' Union, et al., G.R. Nos. L-
10943-44, December 28, 1957).
The record also discloses that the instant case arose from the filing of
administrative charges against some officers of the respondent Bureau of
Printing Employees' Association by the Acting Secretary of General Services.
Said administrative charges are for insubordination, grave misconduct and acts
prejudicial to public service committed by inciting the employees of the Bureau of
Printing to walk out of their jobs against the order of the duly constituted officials.
Under the law, the Heads of Departments and Bureaus are authorized to institute
and investigate administrative charges against erring subordinates. For the
Industrial Court now to take cognizance of the case filed before it, which is in
effect a review of the acts of executive officials having to do with the discipline of
government employees under them, would be to interfere with the discharge of
such functions by said officials.
WHEREFORE, the petition for a writ of prohibition is granted. The orders
complained of are set aside and the complaint for unfair labor practice against
the petitioners is dismissed, with costs against respondents other than the
respondent court.

Bengzon, Bautista, Angelo, Labrador, Paredes and Dizon, JJ., concur.
Reyes, J.B.L., J., concurs in the result.
||| (Bureau of Printing v. Bureau of Printing Employees Ass'n, G.R. No. L-15751,
January 28, 1961)

THIRD DIVISION
[G.R. No. 104269. November 11, 1993.]
DEPARTMENT OF AGRICULTURE, petitioner, vs. THE
NATIONAL LABOR RELATIONS COMMISSION, ET
AL., respondents.
Roy Lago Salcedo for private respondents.
SYLLABUS
1.CONSTITUTIONAL LAW; STATE IMMUNITY FROM SUIT; CONSTRUED.
The basic postulate enshrined in the constitution that "(t)he State may not be
sued without its consent," reflects nothing less than a recognition of the
sovereign character of the State and an express affirmation of the unwritten rule
effectively insulating it from the jurisdiction of courts. It is based on the very
essence of sovereignty. As has been aptly observed, by Justice Holmes, a
sovereign is exempt from suit, not because of any formal conception or obsolete
theory, but on the logical and practical ground that there can be no legal right as
against the authority that makes the law on which the right depends. True, the
doctrine, not too infrequently, is derisively called "the royal prerogative of
dishonesty" because it grants the state the prerogative to defeat any legitimate
claim against it by simply invoking its non-suability. We have had occasion to
explain in its defense, however, that a continued adherence to the doctrine of
non-suability cannot be deplored, for the loss of governmental efficiency and the
obstacle to the performance of its multifarious functions would be far greater in
severity than the inconvenience that may be caused private parties, if such
fundamental principle is to be abandoned and the availability of judicial remedy is
not to be accordingly restricted.
2.ID.; ID.; EXCEPTION ON NON-SUABILITY OF THE STATE. The rule, in
any case, is not really absolute for it does not say that the state may not be sued
under any circumstance. On the contrary, as correctly phrased, the doctrine only
conveys, "the state may not be sued without its consent"; its clear import then is
that the State may at times be sued. The States' consent may be given either
expressly or impliedly. Express consent may be made through a general law or a
special law. In this jurisdiction, the general law waiving the immunity of the state
from suit is found in Act No. 3083, where the Philippine government "consents
and submits to be sued upon any money claim involving liability arising from
contract, express or implied, which could serve as a basis of civil action between
private parties." Implied consent, on the other hand, is conceded when the State
itself commences litigation, thus opening itself to a counterclaim or when it enters
into a contract. In this situation, the government is deemed to have descended to
the level of the other contracting party and to have divested itself of its sovereign
immunity.
3.ID.; ID.; ID.; IMPLIED CONSENT THROUGH CONTRACTS; QUALIFICATION.
Not all contracts entered into by the government operate as a waiver of its
non-suability; distinction must still be made between one which is executed in the
exercise of its sovereign function and another which is done in its proprietary
capacity. The restrictive application of State immunity is proper only when the
proceedings arise out of commercial transactions of the foreign sovereign, its
commercial activities or economic affairs. Stated differently, a State may be said
to have descended to the level of an individual and can thus be deemed to have
tacitly given its consent to be sued only when it enters into business contracts. It
does not apply where the contracts relates to the exercise of its sovereign
functions. In this case the projects are an integral part of the naval base which is
devoted to the defense of both the United States and the Philippines,
indisputably a function of the government of the highest order; they are not
utilized for nor dedicated to commercial or business purposes. (United States of
America vs. Ruiz, 136 SCRA 487)
4.ID.; ID.; ID.; ID.; CASE AT BAR. In the instant case, the Department of
Agriculture has not pretended to have assumed a capacity apart from its being a
governmental entity when it entered into the contract on security services; nor
that it could have, in fact, performed any act proprietary in character. But, be that
as it may, the claims of private respondents, i.e., for underpayment of wages,
holiday pay, overtime pay and similar other items, arising from the Contract for
Security Services, clearly constitute money claims. Act No. 3083, aforecited,
gives the consent of the State to be "sued upon any moneyed claim involving
liability arising from contract, express or implied, . . ."
5.ID.; ID.; ID.; ID.; MONEY CLAIMS AGAINST THE STATE; PROVISIONS OF
COMMONWEALTH ACT NO. 327 REQUIRING FILING OF CLAIMS WITH THE
COMMISSION ON AUDIT NOT INCONSISTENT WITH THE LABOR CODE.
Pursuant, however, to Commonwealth Act ("C.A.") No. 327, as amended by
Presidential Decree ("P.D.") No. 1445, the money claim should first be brought to
the Commission on Audit. (Carabao, Inc. vs. Agricultural Productivity
Commission) We fail to see any substantial conflict or inconsistency between the
provisions of C.A. No. 327 and the Labor Code with respect to money claims
against the State. The Labor Code, in relation to Act No. 3083, provides the legal
basis for the State liability but the prosecution, enforcement or satisfaction
thereof must still be pursued in accordance with the rules and procedures laid
down inC.A. No. 327, as amended by P.D. 1445.
6.ID.; ID.; CONSENT NOT SYNONYMOUS WITH LIABILITY; REQUISITE FOR
LIABILITY TO ATTACH. When the State gives its consent to be sued, it does
not thereby necessarily consent to an unrestrained execution against it. Tersely
put, when the State waives its immunity, all it does, in effect, is to give the other
party an opportunity to prove, if it can, that the State has a liability. In
Republic vs. Villasor this Court, in nullifying the issuance of an alias writ of
execution directed against the funds of the Armed Forces of the Philippines to
satisfy a final and executory judgment, has explained, thus The universal rule
that where the State gives its consent to be sued by private parties either by
general or special law, it may limit claimant's action "only up to the completion of
proceedings anterior to the stage of execution" and that the power of the Courts
ends when the judgment is rendered, since government funds and properties
may not be seized under writs of execution or garnishment to satisfy such
judgments, is based on obvious considerations of public policy. Disbursements of
public funds must be covered by the correspondent appropriation as required by
law. The functions and public services rendered by the State cannot be allowed
to be paralyzed or disrupted by the diversion of public funds from their legitimate
and specific objects, as appropriated by law.
D E C I S I O N
VITUG, J p:
For consideration are the incidents that flow from the familiar doctrine of non-
suability of the state. llcd
In this petition for certiorari, the Department of Agriculture seeks to nullify the
Resolution, 1 dated 27 November 1991, of the National Labor Relations
Commission (NLRC), Fifth Division, Cagayan de Oro City, denying the petition
for injunction, prohibition and mandamus that prays to enjoin permanently the
NLRC's Regional Arbitration Branch X and Cagayan de Oro City Sheriff from
enforcing the decision 2 of 31 May 1991 of the Executive Labor Arbiter and from
attaching and executing on petitioner's property.
The Department of Agriculture (herein petitioner) and Sultan Security Agency
entered into a contract 3 on 01 April 1989 for security services to be provided by
the latter to the said governmental entity. Save for the increase in the monthly
rate of the guards, the same terms and conditions were also made to apply to
another contract, dated 01 May 1990, between the same parties. Pursuant to
their arrangements, guards were deployed by Sultan Agency in the various
premises of the petitioner.
On 13 September 1990, several guards of the Sultan Security Agency filed a
complaint for underpayment of wages, non-payment of 13th month pay, uniform
allowances, night shift differential pay, holiday pay and overtime pay, as well as
for damages, 4 before the Regional Arbitration Branch X of Cagayan de Oro City,
docketed as NLRC Case No. 10-09-00455-90 (or 10-10-00519-90, its original
docket number), against the Department of Agriculture and Sultan Security
Agency. LLjur
The Executive Labor Arbiter rendered a decision on 31 May 1991, finding herein
petitioner jointly and severally liable with sultan Security Agency for the payment
of the money claims, aggregating P266,483.91, of the complainant security
guards. The petitioner and Sultan Security Agency did not appeal the decision of
the Labor Arbiter. Thus, the decision became final and executory. cdrep
On 18 July 1991, the Labor Arbiter issued a writ of execution, 5 commanding the
City Sheriff to enforce and execute the judgment against the property of the two
respondents. Forthwith, or on 19 July 1991, the City Sheriff levied on execution
the motor vehicles of the petitioner, i.e., one (1) unit Toyota Hi-Ace, one (1) unit
Toyota Mini Cruiser, and one (1) unit Toyota Crown. 6 These units were put
under the custody of Zacharias Roa, the property custodian of the petitioner,
pending their sale at public auction or the final settlement of the case, whichever
would come first.
A petition for injunction, prohibition and mandamus, with prayer for preliminary
writ of injunction, was filed by the petitioner with the National Labor Relations
Commission ("NLRC"), Cagayan de Oro, alleging, inter alia, that the writ issued
was effected without the Labor Arbiter having duly acquired jurisdiction over the
petitioner, and that, therefore, the decision of the Labor Arbiter was null and void
and all actions pursuant thereto should be deemed equally invalid and of no legal
effect. The petitioner also pointed out that the attachment or seizure of its
property would hamper and jeopardize petitioner's governmental functions to the
prejudice of the public good.

On 27 November 1991, the NLRC promulgated its assailed resolution; viz:
"WHEREFORE, premises considered, the following orders are issued:
1.The enforcement and execution of the judgments against petitioner in
NLRC RABX Cases Nos. 10-10-00455-90; 10-10-0481-90 and 10-10-
00519-90 are temporarily suspended for a period of two (2) months,
more or less, but not extending beyond the last quarter of calendar year
1991 to enable petitioner to source and raise funds to satisfy the
judgment awards against it;
2.Meantime, petitioner is ordered and directed to source for funds within
the period above-stated and to deposit the sums of money equivalent to
the aggregate amount it has been adjudged to pay jointly and severally
with respondent Sultan Security Agency with the Regional Arbitration
Branch X, Cagayan de Oro City within the same period for proper
disposition;
3.In order to ensure compliance with this order, petitioner is likewise
directed to put up and post sufficient surety and supersedeas
bond equivalent to at least to fifty (50%) percent of the total monetary
award issued by a reputable bonding company duly accredited by the
Supreme Court or by the Regional Trial court of Misamis Oriental to
answer for the satisfaction of the money claims in case of failure or
default on the part of petitioner to satisfy the money claims;
4.The City Sheriff is ordered to immediately release the properties of
petitioner levied on execution within ten (10) days from notice of the
posting of sufficient surety or supersedeas bond as specified above. In
the meanwhile, petitioner is assessed to pay the costs and/or expenses
incurred by the City Sheriff, if any, in connection with the execution of the
judgments in the above-stated cases upon presentation of the
appropriate claims or vouchers and receipts by the city Sheriff, subject to
the conditions specified in the NLRC Sheriff, subject to the conditions
specified in the NLRC Manual of Instructions for Sheriffs;
5.The right of any of the judgment debtors to claim reimbursement
against each other for any payments made in connection with the
satisfaction of the judgments herein is hereby recognized pursuant to the
ruling in the Eagle Security case, (supra). In case of dispute between the
judgment debtors, the Executive Labor Arbiter of the Branch of origin
may upon proper petition by any of the parties conduct arbitration
proceedings for the purpose and thereby render his decision after due
notice and hearings;
6.Finally, the petition for injunction is Dismissed for lack of basis. The
writ of preliminary injunction previously issued in Lifted and Set
Aside and in lieu thereof, aTemporary Stay of Execution is issued for a
period of two (2) months but not extending beyond the last quarter of
calendar year 1991, conditioned upon the posting of a surety or
supersedeas bond by petitioner with in ten (10) days from notice
pursuant to paragraph 3 of this disposition. The motion to admit the
complaint in intervention is Denied for lack of merit while the motion to
dismiss the petition filed by Duty Sheriff in Noted. LLpr
SO ORDERED."
In this petition for certiorari, the petitioner charges the NLRC with grave abuse of
discretion for refusing to quash the writ of execution. The petitioner faults the
NLRC for assuming jurisdiction over a money claim against the Department,
which, it claims, falls under the exclusive jurisdiction of the Commission on Audit.
More importantly, the petitioner asserts, the NLRC has disregarded the cardinal
rule on the non-suability of the State.
The private respondents, on the other hand, argue that the petitioner has
impliedly waived its immunity from suit by concluding a service contract with
Sultan Security Agency.
The basic postulate enshrined in the constitution that "(t)he State may not be
sued without its consent," 7 reflects nothing less than a recognition of the
sovereign character of the State and an express affirmation of the unwritten rule
effectively insulating it from the jurisdiction of courts. 8 It is based on the very
essence of sovereignty. As has been aptly observed, by Justice Holmes, a
sovereign is exempt from suit, not because of any formal conception or obsolete
theory, but on the logical and practical ground that there can be no legal right as
against the authority that makes the law on which the right depends. 9 True, the
doctrine, not too infrequently, is derisively called "the royal prerogative of
dishonesty" because it grants the state the prerogative to defeat any legitimate
claim against it by simply invoking its non-suability. 10 We have had occasion to
explain in its defense, however, that a continued adherence to the doctrine of
non-suability cannot be deplored, for the loss of governmental efficiency and the
obstacle to the performance of its multifarious functions would be far greater in
severity than the inconvenience that may be caused private parties, if such
fundamental principle is to be abandoned and the availability of judicial remedy is
not to be accordingly restricted. 11
The rule, in any case, is not really absolute for it does not say that the state may
not be sued under any circumstance. On the contrary, as correctly phrased, the
doctrine only conveys, "the state may not be sued without its consent;" its clear
import then is that the State may at times be sued. 12 The States' consent may be
given either expressly or impliedly. Express consent may be made through a
general law 13 or a special law. 14 In this jurisdiction, the general law waiving the
immunity of the state from suit is found inAct No. 3083, where the Philippine
government "consents and submits to be sued upon any money claim involving
liability arising from contract, express or implied, which could serve as a basis of
civil action between private parties." 15 Implied consent, on the other hand, is
conceded when the State itself commences litigation, thus opening itself to a
counterclaim 16 or when it enters into a contract. 17 In this situation, the
government is deemed to have descended to the level of the other contracting
party and to have divested itself of its sovereign immunity. This rule, relied upon
by the NLRC and the private respondents, is not, however, without qualification.
Not all contracts entered into by the government operate as a waiver of its non-
suability; distinction must still be made between one which is executed in the
exercise of its sovereign functions and another which is done in its proprietary
capacity. 18
In United States of America vs. Ruiz, 19 where the questioned transaction dealt
with the improvements on the wharves in the naval installation at Subic Bay, we
held:
"The traditional rule of immunity exempts a State from being sued in the
courts of another State without its consent or waiver. This rule is a
necessary consequence of the principles of independence and equality
of States. However, the rules of International Law are not petrified; they
are constantly developing and evolving. And because the activities of
states have multiplied, it has been necessary to distinguish them
between sovereign and governmental acts ( jure imperii) and private,
commercial and proprietary acts ( jure gestionis). The result is that State
immunity now extends only to acts jure imperii. The restrictive
application of State immunity is now the rule in the United States, the
United Kingdom and other states in Western Europe.
xxx xxx xxx
The restrictive application of State immunity is proper only when the
proceedings arise out of commercial transactions of the foreign
sovereign, its commercial activities or economic affairs. Stated
differently, a State may be said to have descended to the level of an
individual and can thus be deemed to have tacitly given its consent to be
sued only when it enters into business contracts. It does not apply where
the contracts relates to the exercise of its sovereign functions. In this
case the projects are an integral part of the naval base which is devoted
to the defense of both the United States and the Philippines, indisputably
a function of the government of the highest order; they are not utilized for
nor dedicated to commercial or business purposes."
In the instant case, the Department of Agriculture has not pretended to have
assumed a capacity apart from its being a governmental entity when it
entered into the questioned contract; nor that it could have, in fact, performed
any act proprietary in character.
But, be that as it may, the claims of private respondents, i.e., for underpayment
of wages, holiday pay, overtime pay and similar other items, arising from the
Contract for Security Services, clearly constitute money claims. Act No. 3083,
aforecited, gives the consent of the State to be "sued upon any moneyed claim
involving liability arising from contract, express or implied, . . ." Pursuant,
however, to Commonwealth Act ("C.A.") No. 327, as amended by Presidential
Decree ("P.D.") No. 1445, the money claim should first be brought to the
Commission on Audit. Thus, in Carabao, Inc., vs. Agricultural Productivity
Commission, 20 we ruled:
"(C)laimants have to prosecute their money claims against the
Government under Commonwealth Act 327, stating that Act 3083 stands
now merely as the general law waiving the State's immunity from suit,
subject to its general limitation expressed in Section 7 thereof that 'no
execution shall issue upon any judgment rendered by any Court against
the Government of the (Philippines), and that the conditions provided
in Commonwealth Act 327 for filing money claims against the
Government must be strictly observed.' "
We fail to see any substantial conflict or inconsistency between the provisions
of C.A. No. 327 and the Labor Code with respect to money claims against the
State. The Labor Code, in relation to Act No. 3083, provides the legal basis for
the State liability but the prosecution, enforcement or satisfaction thereof must
still be pursued in accordance with the rules and procedures laid down in C.A.
No. 327, as amended by P.D. 1445.

When the State gives its consent to be sued, it does not thereby necessarily
consent to an unrestrained execution against it. Tersely put, when the State
waives its immunity, all it does, in effect, is to give the other party an opportunity
to prove, if it can, that the State has a liability. 21 In Republic vs. Villasor 22 this
Court, in nullifying the issuance of analias writ of execution directed against the
funds of the Armed Forces of the Philippines to satisfy a final and executory
judgment, has explained, thus
The universal rule that where the State gives its consent to be sued by
private parties either by general or special law, it may limit claimant's
action "only up to the completion of proceedings anterior to the stage of
execution" and that the power of the Courts ends when the judgment is
rendered, since government funds and properties may not be seized
under writs of execution or garnishment to satisfy such judgments, is
based on obvious considerations of public policy. Disbursements of
public funds must be covered by the correspondent appropriation as
required by law. The functions and public services rendered by the State
cannot be allowed to be paralyzed or disrupted by the diversion of public
funds from their legitimate and specific objects, as appropriated by
law. 23
WHEREFORE, the petition is GRANTED. The resolution, dated 27 November
1991, is hereby REVERSED and SET ASIDE. The writ of execution directed
against the property of the Department of Agriculture is nullified, and the public
respondents are hereby enjoined permanently from doing, issuing and
implementing any and all writs of execution issued pursuant to the decision
rendered by the Labor Arbiter against said petitioner.
SO ORDERED.
Feliciano, Bidin, Romero and Melo, JJ ., concur.
||| (Department of Agriculture v. NLRC, G.R. No. 104269, November 11, 1993)

FIRST DIVISION
[G.R. No. L-46930. June 10, 1988.]
DALE SANDERS, and A.S. MOREAU, JR., petitioners, vs. HON.
REGINO T. VERIDIANO II, as Presiding Judge, Branch I, Court
of First Instance of Zambales, Olongapo City, ANTHONY M.
ROSSI and RALPH L. WYERS, respondents.
D E C I S I O N
CRUZ, J p:
The basic issue to be resolved in this case is whether or not the petitioners were
performing their official duties when they did the acts for which they have been
sued for damages by the private respondents. Once this question is decided, the
other answers will fall into place and this petition need not detain us any longer
than it already has.
Petitioner Sanders was, at the time the incident in question occurred, the special
services director of the U.S. Naval Station (NAVSTA) in Olongapo
City. 1 Petitioner Moreau was the commanding officer of the Subic Naval Base,
which includes the said station. 2 Private respondent Rossi is an American citizen
with permanent residence in the Philippines,3 as so was private respondent
Wyer, who died two years ago. 4 They were both employed as gameroom
attendants in the special services department of the NAVSTA, the former having
been hired in 1971 and the latter in 1969. 5
On October 3, 1975, the private respondents were advised that their employment
had been converted from permanent full-time to permanent part-time, effective
October 18, 1975. 6 Their reaction was to protest this conversion and to institute
grievance proceedings conformably to the pertinent rules and regulations of the
U.S. Department of Defense. The result was a recommendation from the hearing
officer who conducted the proceedings for the reinstatement of the private
respondents to permanent full-time status plus backwages. The report on the
hearing contained the observation that "Special Services management practices
an autocratic form of supervision." 7
In a letter addressed to petitioner Moreau on May 17, 1976 (Annex "A" of the
complaint), Sanders disagreed with the hearing officer's report and asked for the
rejection of the abovestated recommendation. The letter contained the
statements that: a) "Mr. Rossi tends to alienate most co-workers and
supervisors;" b) "Messrs. Rossi and Wyers have proven, according to their
immediate supervisors, to be difficult employees to supervise;" and c) "even
though the grievants were under oath not to discuss the case with anyone, (they)
placed the records in public places where others not involved in the case could
hear."
On November 7, 1975, before the start of the grievance hearings, a letter (Annex
"B" of the complaint) purportedly coming from petitioner Moreau as the
commanding general of the U.S. Naval Station in Subic Bay was sent to the
Chief of Naval Personnel explaining the change of the private respondent's
employment status and requesting concurrence therewith. The letter did not carry
his signature but was signed by W.B. Moore, Jr. "by direction," presumably of
Moreau.
On the basis of these antecedent facts, the private respondent filed in the Court
of First Instance of Olongapo City a complaint for damages against the herein
petitioners on November 8, 1976. 8 The plaintiffs claimed that the letters
contained libelous imputations that had exposed them to ridicule and caused
them mental anguish and that the prejudgment of the grievance proceedings was
an invasion of their personal and proprietary rights.
The private respondents made it clear that the petitioners were being sued in
their private or personal capacity. However, in a motion to dismiss filed under a
special appearance, the petitioners argued that the acts complained of were
performed by them in the discharge of their official duties and that, consequently,
the court had no jurisdiction over them under the doctrine of state immunity.
After extensive written arguments between the parties, the motion was denied in
an order dated March 8, 1977, 9 on the main ground that the petitioners had not
presented any evidence that their acts were official in nature and not personal
torts, moreover, the allegation in the complaint was that the defendants had
acted maliciously and in bad faith. The same order issued a writ of preliminary
attachment, conditioned upon the filing of a P10,000.00 bond by the plaintiffs,
against the properties of petitioner Moreau, who allegedly was then about to
leave the Philippines. Subsequently, to make matters worse for the defendants,
petitioner Moreau was declared in default by the trial court in its order dated
August 9, 1977. The motion to lift the default order on the ground that Moreau's
failure to appear at the pre-trial conference was the result of some
misunderstanding, and the motion for reconsideration of the denial of the motion
to dismiss, which was filed by the petitioner's new lawyers, were denied by the
respondent court on September 7, 1977.
This petition for certiorari, prohibition and preliminary injunction was thereafter
filed before this Court, on the contention that the above-narrated acts of the
respondent court are tainted with grave abuse of discretion amounting to lack of
jurisdiction.
We return now to the basic question of whether the petitioners were acting
officially or only in their private capacities when they did the acts for which the
private respondents have sued them for damages.
It is stressed at the outset that the mere allegation that a government functionary
is being sued in his personal capacity will not automatically remove him from the
protection of the law of public officers and, if appropriate, the doctrine of state
immunity. By the same token, the mere invocation of official character will not
suffice to insulate him from suability and liability for an act imputed to him as a
personal tort committed without or in excess of his authority. These well-settled
principles are applicable not only to the officers of the local state but also where
the person sued in its courts pertains to the government of a foreign state, as in
the present case.
The respondent judge, apparently finding that the complained acts were prima
facie personal and tortious, decided to proceed to trial to determine inter alia their
precise character on the strength of the evidence to be submitted by the parties.
The petitioners have objected, arguing that no such evidence was needed to
substantiate their claim of jurisdictional immunity. Pending resolution of this
question, we issued a temporary restraining order on September 26, 1977, that
has since then suspended the proceedings in this case in the court a quo. LLjur
In past cases, this Court has held that where the character of the act complained
of can be determined from the pleadings exchanged between the parties before
the trial, it is not necessary for the court to require them to belabor the point at a
trial still to be conducted. Such a proceeding would be superfluous, not to say
unfair to the defendant who is subjected to unnecessary and avoidable
inconvenience.
Thus, in Baer v. Tizon, 10 we held that a motion to dismiss a complaint against
the commanding general of the Olongapo Naval Base should not have been
denied because it had been sufficiently shown that the act for which he was
being sued was done in his official capacity on behalf of the American
government. The United States had not given its consent to be sued. It was the
reverse situation in Syquia v. Almeda Lopez, 11 where we sustained the order of
the lower court granting a motion to dismiss a complaint against certain officers
of the U.S. armed forces also shown to be acting officially in the name of the
American government. The United States had also not waived its immunity from
suit. Only three years ago, in United States of America v. Ruiz, 12 we set aside
the denial by the lower court of a motion to dismiss a complaint for damages filed
against the United States and several of its officials, it appearing that the act
complained of was governmental rather than proprietary, and certainly not
personal. In these and several other cases, 13 the Court found it redundant to
prolong the proceedings after it had become clear that the suit could not prosper
because the acts complained of were covered by the doctrine of state immunity.
It is abundantly clear in the present case that the acts for which the petitioners
are being called to account were performed by them in the discharge of their
official duties.Sanders, as director of the special services department of
NAVSTA, undoubtedly had supervision over its personnel, including the private
respondents, and had a hand in their employment, work assignments, discipline,
dismissal and other related matters. It is not disputed that the letter he had
written was in fact a reply to a request from his superior, the other petitioner, for
more information regarding the case of the private respondents. 14 Moreover,
even in the absence of such request, he still was within his rights in reacting to
the hearing officer's criticism in effect a direct attack against him that
Special Services was practicing "an autocratic form of supervision."
As for Moreau, what he is claimed to have done was write the Chief of Naval
Personnel for concurrence with the conversion of the private respondents' type of
employment even before the grievance proceedings had even commenced.
Disregarding for the nonce the question of its timeliness, this act is clearly official
in nature, performed by Moreau as the immediate superior of Sanders and
directly answerable to Naval Personnel in matters involving the special services
department of NAVSTA. In fact, the letter dealt with the financial and budgetary
problems of the department and contained recommendations for their solution,
including the re-designation of the private respondents. There was nothing
personal or private about it.
Given the official character of the above-described letters, we have to conclude
that the petitioners were, legally speaking, being sued as officers of the United
States government. As they have acted on behalf of that government, and within
the scope of their authority, it is that government, and not the petitioners
personally, that is responsible for their acts. Assuming that the trial can proceed
and it is proved that the claimants have a right to the payment of damages, such
award will have to be satisfied not by the petitioners in their personal capacities
but by the United States government as their principal. This will require that
government to perform an affirmative act to satisfy the judgment, viz., the
appropriation of the necessary amount to cover the damages awarded, thus
making the action a suit against that government without its consent. cdrep

There should be no question by now that such complaint cannot prosper unless
the government sought to be held ultimately liable has given its consent to be
sued. So we have ruled not only in Baer but in many other decisions where we
upheld the doctrine of state immumity as applicable not only to our own
government but also to foreign states sought to be subjected to the jurisdiction of
our courts. 15
The practical justification for the doctrine, as Holmes put it, is that "there can be
no legal right against the authority which makes the law on which the right
depends." 16 In the case of foreign states, the rule is derived from the principle of
the sovereign equality of states which wisely admonishes that par in parem non
habet imperium and that a contrary attitude would "unduly vex the peace of
nations." 17 Our adherence to this precept is formally expressed in Article II,
Section 2, of our Constitution, where we reiterate from our previous charters that
the Philippines "adopts the generally accepted principles of international law as
part of the law of the land."
All this is not to say that in no case may a public officer be sued as such without
the previous consent of the state. To be sure, there are a number of well-
recognized exceptions. It is clear that a public officer may be sued as such to
compel him to do an act required by law, as where, say, a register of deeds
refuses to record a deed of sale;18 or to restrain a Cabinet member, for example,
from enforcing a law claimed to be unconstitutional; 19 or to compel the national
treasurer to pay damages from an already appropriated assurance fund; 20 or the
commissioner of internal revenue to refund tax overpayments from a fund
already available for the purpose; 21 or, in general, to secure a judgment that the
officer impleaded may satisfy by himself without the government itself having to
do a positive act to assist him. We have also held that where the government
itself has violated its own laws, the aggrieved party may directly implead the
government even without first filing his claim with the Commission on Audit as
normally required, as the doctrine of state immunity "cannot be used as an
instrument for perpetrating an injustice." 22
This case must also be distinguished from such decisions as Festejo v.
Fernando, 23 where the Court held that a bureau director could be sued for
damages on a personal tort committed by him when he acted without or in
excess of authority in forcibly taking private property without paying just
compensation therefor although he did convert it into a public irrigation canal. It
was not necessary to secure the previous consent of the state, nor could it be
validly impleaded as a party defendant, as it was not responsible for the
defendant's unauthorized act.
The case at bar, to repeat, comes under the rule and not under any of the
recognized exceptions. The government of the United States has not given its
consent to be sued for the official acts of the petitioners, who cannot satisfy any
judgment that may be rendered against them. As it is the American government
itself that will have to perform the affirmative act of appropriating the amount that
may be adjudged for the private respondents, the complaint must be dismissed
for lack of jurisdiction.
The Court finds that, even under the law of public officers, the acts of the
petitioners are protected by the presumption of good faith, which has not been
overturned by the private respondents. Even mistakes concededly committed by
such public officers are not actionable as long as it is not shown that they were
motivated by malice or gross negligence amounting to bad faith. 24 This, too, is
well-settled. 25 Furthermore, applying now our own penal laws, the letters come
under the concept of privileged communications and are not punishable, 26 let
alone the fact that the resented remarks are not defamatory by our standards. It
seems the private respondents have overstated their case.
A final consideration is that since the questioned acts were done in the Olongapo
Naval Base by the petitioners in the performance of their official duties and the
private respondents are themselves American citizens, it would seem only proper
for the courts of this country to refrain from taking cognizance of this matter and
to treat it as coming under the internal administration of the said base.
The petitioners' counsel have submitted a memorandum replete with citations of
American cases, as if they were arguing before a court of the United States. The
Court is bemused by such attitude. While these decisions do have persuasive
effect upon us, they can at best be invoked only to support our own
jurisprudence, which we have developed and enriched on the basis of our own
persuasions as a people, particularly since we became independent in 1946. LLjur
We appreciate the assistance foreign decisions offer us, and not only from the
United States but also from Spain and other countries from which we have
derived some if not most of our own laws. But we should not place undue and
fawning reliance upon them and regard them as indispensable mental crutches
without which we cannot come to our own decisions through the employment of
our own endowments. We live in a different ambience and must decide our own
problems in the light of our own interests and needs, and of our qualities and
even idiosyncrasies as a people, and always with our own concept of law and
justice.
The private respondents must, if they are still so minded, pursue their claim
against the petitioners in accordance with the laws of the United States, of which
they are all citizens and under whose jurisdiction the alleged offenses were
committed. Even assuming that our own laws are applicable, the United States
government has not decided to give its consent to be sued in our courts, which
therefore has not acquired the competence to act on the said claim.
WHEREFORE, the petition is GRANTED. The challenged orders dated March 8,
1977, August 9, 1977, and September 7, 1977, are SET ASIDE. The respondent
court is directed to DISMISS Civil Case No. 2077-O. Our Temporary restraining
order of September 26, 1977, is made PERMANENT. No costs.
SO ORDERED.
Narvasa, Gancayco, Grio-Aquino and Medialdea, JJ., concur.
||| (Sanders v. Veridiano II, G.R. No. L-46930, June 10, 1988)

EN BANC
[G.R. No. 84607. March 19, 1993.]
REPUBLIC OF THE PHILIPPINES, GEN. RAMON MONTANO,
GEN. ALFREDO LIM, GEN. ALEXANDER AGUIRRE, COL.
EDGAR DULA TORRES, COL. CEZAR NAZARENO, MAJ.
FILEMON GASMEN, PAT. NICANOR ABANDO, PFC SERAPIN
CEBU, JR., GEN. BRIGIDO PAREDES, COL. ROGELIO
MONFORTE, PFC ANTONIO LUCERO, PAT. JOSE MENDIOLA,
PAT. NELSON TUAZON, POLICE CORPORAL PANFILO
ROGOS, POLICE LT. JUAN B. BELTRAN, PAT. NOEL
MANAGBAO, MARINE THIRD CLASS TRAINEE (3CT) NOLITO
NOGATO, 3CT ALEJANDRO B. NAGUIO, JR., EFREN
ARCILLAS, 3CT AGERICO LUNA, 3CT BASILIO BORJA, 3CT
MANOLITO LUSPO, 3CT CRISTITUTO GERVACIO, 3CT
MANUEL DELA CRUZ, JR., MARINE (CDC) BN., (CIVIL
DISTURBANCE CONTROL), MOBILE DISPERSAL TEAM
(MDT), LT. ROMEO PAQUINTO, LT. LAONGLAANG GOCE,
MAJ. DEMETRIO DE LA CRUZ, POLICE CAPTAIN RODOLFO
NAVAL, JOHN DOE, RICHARD DOE, ROBERTO DOE AND
OTHER DOES, petitioners, vs. HON. EDILBERTO
G. SANDOVAL, Regional Trial Court of Manila, Branch IX,
ERLINDA C. CAYLAO, ANATALIA ANGELES PEREZ, MYRNA
BAUTISTA, CIPRIANA EVANGELIO, ELMA GRAMPA, AMELIA
GUTIERREZ, NEMESIO LAKINDANUM, PURITA YUMUL,
MIGUEL ARABE, TERESITA ARJONA, RONALDO
CAMPOMANES AND CARMENCITA ARDONI VDA. DE
CAMPOMANES, ROGELIO DOMUNICO, in their capacity as
heirs of the deceased (ROBERTO C. CAYLAO, SONNY "BOY"
PEREZ, DIONESIO BAUTISTA, DANTE EVANGELIO, ADELFA
ARIBE, DANILO ARJONA, VICENTE CAMPOMANES, RONILO
DOMUNICO) respectively; and (names of sixty-two injured
victims) EDDIE AGUINALDO, FELICISIMO ALBASIA,
NAPOLEON BAUTISTA, DANILO CRUZ, EDDIE MENSOLA,
ALBERT PITALBO, VICENTE ROSEL, RUBEN CARRIEDO, JOY
CRUZ, HONORIO LABAMBA, JR., EFREN MACARAIG,
SOLOMON MANALOTO, ROMEO DURAN, NILO TAGUBAT,
JUN CARSELLAR, JOEY CLEMENTE, GERARDO COYOCA,
LUISITO DACO, BENJAMIN DELA CRUZ, ARTHUR
FONTANILLA, WILSON GARCIA, CARLOS SIRAY, JOSE
PERRAS, TOMAS VALLOS, ARNOLD ENAJE, MARIANITA
DIMAPILIS, FRANCISCO ANGELES, MARCELO ESGUERRA,
JOSE FERRER, RODEL DE GUIA, ELVIS MENDOZA,
VICTORINO QUIJANO, JOEY ADIME, RESIENO ADUL,
ALBERTO TARSONA, CARLOS ALCANTARA, MAMERTO
ALIAS, EMELITO ALMONTE, BENILDA ALONUEVO, EMMA
ABADILLO, REYNALDO CABALLES, JR., JAIME CALDETO,
FABIAN CANTELEJO, RODRIGO CARABARA, ENRIQUE
DELGADO, JUN DELOS SANTOS, MARIO DEMASACA,
FRANCISCO GONZALES, ERNESTO GONZALES, RAMIRO
JAMIL, JUAN LUCENA, PERLITO SALAYSAY, JOHNNY
SANTOS, MARCELO SANTOS, EMIL SAYAO, BAYANI UMALI,
REMIGIO MAHALIN, BONG MANLULO, ARMANDO MATIENZO,
CARLO MEDINA, LITO NOVENARIO, and ROSELLA
ROBALE, respondents.
[G.R. No. 84645. March 19, 1993.]
ERLINDA C. CAYLAO, ANATALIA ANGELES PEREZ, MYRNA
BAUTISTA, CIPRIANA EVANGELIO, ELMA GRAMPA, AMELIA
GUTIERREZ, NEMESIO LAKINDANUM, PURITA YUMUL,
MIGUEL ARABE, TERESITA ARJONA, RONALDO
CAMPOMANES AND CARMENCITA ARDONI VDA. DE
CAMPOMANES, ROGELIO DOMUNICO, in their capacity as
heirs of the deceased (ROBERTO C. CAYLAO, SONNY "BOY"
PEREZ, DIONESIO BAUTISTA, DANTE EVANGELIO, RODRIGO
GRAMPA, ANGELITO GUTIERREZ, BERNABE LAKINDANUM,
ROBERTO YUMUL, LEOPOLDO ALONZO, ADELFA ARIBE,
DANILO ARJONA, VICENTE CAMPOMANES, RONILO
DOMUNICO) respectively; and (names of sixty-two injured
victims) EDDIE AGUINALDO, FELICISIMO ALBASIA,
NAPOLEON BAUTISTA, DANILO CRUZ, EDDIE MENSOLA,
ALBERT PITALBO, VICENTE ROSEL, RUBEN CARRIEDO, JOY
CRUZ, HONORIO LABAMBA, JR. EFREN MACARAIG,
SOLOMON MANALOTO, ROMEO DURAN, NILO TAGUBAT,
JUN CARSELLAR, JOEY CLEMENTE, GERARDO COYOCA,
LUISITO DACO, BENJAMIN DELA CRUZ, ARTHUR
FONTANILLA, WILSON GARCIA, CARLOS SIRAY, JOSE
PERRAS, TOMAS VALLOS, ARNOLD ENAJE, MARIANITA
DIMAPILIS, FRANCISCO ANGELES, MARCELO ESGUERRA,
JOSE FERRER, RODEL DE GUIA, ELVIS MENDOZA,
VICTORINO QUIJANO, JOEY ADIME, RESIENO ADUL,
ALBERTO TARSONA, CARLOS ALCANTARA, MAMERTO
ALIAS, EMELITO ALMONTE, BENILDA ALONUEVO, EMMA
ABADILLO, REYNALDO CABALLES, JR., JAIME CALDETO,
FABIAN CANTELEJO, RODRIGO CARABARA, ENRIQUE
DELGADO, JUN DELOS SANTOS, MARIO DEMASACA,
FRANCISCO GONZALES, ERNESTO GONZALES, RAMIRO
JAMIL, JUAN LUCENA, PERLITO SALAYSAY, JOHNNY
SANTOS, MARCELO SANTOS, EMIL SAYAO, BAYANI UMALI,
REMIGIO MAHALIN, BONG MANLULO, ARMANDO MATIENZO,
CARLO MEDINA, LITO NOVENARIO, ROSELLA
ROBALE, petitioners, vs.REPUBLIC OF THE PHILIPPINES, and
HONORABLE EDILBERTO G. SANDOVAL, Regional Trial
Court of Manila, Branch 9, respondents.
SYLLABUS
1.POLITICAL LAW; PRINCIPLE OF STATE'S IMMUNITY FROM SUIT;
CONSTRUED. Under our Constitution the principle of immunity of the
government from suit is expressly provided in Article XVI, Section 3. The
principle is based on the very essence of sovereignty, and on the practical
ground that there can be no legal right as against the authority that makes the
law on which the right depends. It also rests on reasons of public policy that
public service would be hindered, and the public endangered, if the sovereign
authority could be subjected to law suits at the instance of every citizen and
consequently controlled in the uses and dispositions of the means required for
the proper administration of the government.
2.ID.; ID.; NOT DEEMED WAIVED WHEN THE GOVERNMENT AUTHORIZES
THE INDEMNIFICATION FOR THE VICTIM OR THROUGH PUBLIC
ADDRESSES MADE BY THE PRESIDENT. Petitioners (Caylao group)
advance the argument that the State has impliedly waived its sovereign immunity
from suit. It is their considered view that by the recommendation made by the
Commission for the government to indemnity the heirs and victims of the
Mendiola incident and by the public addresses made by then President Aquino in
the aftermath of the killings, the State has consented to be sued. This is not a
suit against the State with its consent. Firstly, the recommendation made by the
Commission regarding indemnification of the heirs of the deceased and the
victims of the incident by the government does not in any way mean that liability
automatically attaches to the State. It is important to note that A.O. 11 expressly
states that the purpose of creating the Commission was to have a body that will
conduct an "investigation of the disorder, deaths and casualties that took place."
In the exercise of its functions, A.O. 11 provides guidelines, and what is relevant
to Our discussion reads: "1. Its conclusions regarding the existence of probable
cause for the commission of any offense and of the persons probably guilty of the
same shall be sufficient compliance with the rules on preliminary investigation
and the charges arising therefrom may be filed directly with the proper court." In
effect, whatever may be the findings of the Commission, the same shall only
serve as the cause of action in the event that any party decides to litigate his/her
claim. Therefore, the Commission is merely a preliminary venue. The
Commission is not the end in itself. Whatever recommendation it makes cannot
in any way bind the State immediately, such recommendation not having become
final and executory. This is precisely the essence of it being a fact-finding
body. Secondly, whatever acts or utterances that then President Aquino may
have done or said, the same are not tantamount to the State having waived its
immunity from suit. The President's act of joining the marchers, days after the
incident, does not mean that there was an admission by the State of any liability.
In fact to borrow the words of petitioners (Caylao group), "it was an act of
solidarity by the government with the people." Moreover, petitioners rely on
President Aquino's speech promising that the government would address the
grievances of the rallyists. By this alone, it cannot be inferred that the State has
admitted any liability, much less can it be inferred that it has consented to the
suit.
3.ID.; ID.; WHEN AVAILABLE; RULE; CASE AT BAR. Some instances when
a suit against the State is proper are" (1) When the Republic is sued by name; (2)
When the suit is against an unincorporated government agency; (3) When the
suit is on its face against a government officer but the case is such that ultimate
liability will belong not to the officer but to the government. While the Republic in
this case is sued by name, the ultimate liability does not pertain to the
government. Although the military officers and personnel, then party defendants,
were discharging their official functions when the incident occurred, their
functions ceased to be official the moment they exceeded their authority. Based
on the Commission findings, there was lack of justification by the government
forces in the use of firearms. Moreover, the members of the police and military
crowd dispersal units committed a prohibited act under B.P. Blg. 880 as there
was unnecessary firing by them in dispersing the marchers.
4.ID.; ID.; CANNOT INSTITUTIONALIZE IRRESPONSIBILITY AND NON-
ACCOUNTABILITY NOR GRANT A PRIVILEGE STATUS NOT CLAIMED BY
ANY OTHER OFFICIAL OF THEREPUBLIC. As early as 1954, this Court has
pronounced that an officer cannot shelter himself by the plea that he is a public
agent acting under the color of his office when his acts are wholly without
authority. Until recently in 1991, this doctrine still found application, this Court
saying that immunity from suit cannot institutionalize irresponsibility and non-
accountability nor grant a privileged status not claimed by any other official of
the Republic. The military and police forces were deployed to ensure that the
rally would be peaceful and orderly as well as to guarantee the safety of the very
people that they are duty-bound to protect. However, the facts as found by the
trial court showed that they fired at the unruly crowd to disperse the latter.
5.ID.; ID.; DOES NOT APPLY WHEN THE RELIEF DEMANDED BY THE SUIT
REQUIRES NO AFFIRMATIVE OFFICIAL ACTION ON THE PART OF THE
STATE NOR THE AFFIRMATIVE DISCHARGE OF ANY OBLIGATION WHICH
BELONGS TO THE STATE IN ITS POLITICAL CAPACITY. While it is true
that nothing is better settled than the general rule that a sovereign state and its
political subdivisions cannot be sued in the courts except when it has given its
consent, it cannot be invoked by both the military officers to release them from
any liability, and by the heirs and victims to demand indemnification from the
government. The principle of state immunity from suit does not apply, as in this
case, when the relief demanded by the suit requires no affirmative official action
on the part of the State nor the affirmative discharge of any obligation which
belongs to the State in its political capacity, even though the officers or agents
who are made defendants claim to hold or act only by virtue of a title of the state
and as its agents and servants. This Court has made it quite clear that even a
"high position in the government does not confer a license to persecute or
recklessly injure another."

D E C I S I O N
CAMPOS, JR., J p:
People may have already forgotten the tragedy that transpired on January 22,
1987. It is quite ironic that then, some journalists called it a Black Thursday, as a
grim reminder to the nation of the misfortune that befell twelve (12) rallyists. But
for most Filipinos now, the Mendiola massacre may now just as well be a chapter
in our history books. For those however, who have become widows and orphans,
certainly they would not settle for just that. They seek retribution for the lives
taken that will never be brought back to life again. LLjur
Hence, the heirs of the deceased, together with those injured(Caylao group),
instituted this petition, docketed as G.R. No. 84645, under Section 1 of Rule 65
of the Rules of Court, seeking the reversal and setting aside of the Orders of
respondent Judge Sandoval, 1 dated May 31 and August 8, 1988, dismissing the
complaint for damages of herein petitioners against the Republic of the
Philippines in Civil Case. No. 88-43351.
Petitioner, the Republic of the Philippines, through a similar remedy, docketed as
G.R. No. 84607, seeks to set aside the Order of respondent Judge dated May
31, 1988, in Civil Case No. 88-43351 entitled "Erlinda Caylao, et
al. vs. Republic of the Philippines, et al."
The pertinent portion of the questioned Order 2 dated May 31, 1988, reads as
follows:
"With respect however to the other defendants, the impleaded Military
Officers, since they are being charged in their personal and official
capacity, and holding them liable, if at all, would not result in financial
responsibility of the government, the principle of immunity from suit can
not conveniently and correspondingly be applied to them.
WHEREFORE, the case as against the defendant Republic of the
Philippines is hereby dismissed. As against the rest of the defendants
the motion to dismiss is denied. They are given a period of ten (10) days
from receipt of this order within which to file their respective pleadings."
On the other hand, the Order 3 , dated August 8, 1988, denied the motions filed
by both parties, for a reconsideration of the abovecited Order, respondent Judge
finding no cogent reason to disturb the said order.
The massacre was the culmination of eight days and seven nights of
encampment by members of the militant Kilusang Magbubukid sa Pilipinas
(KMP) at the then Ministry (now Department) of Agrarian Reform (MAR) at the
Philippine Tobacco Administration Building along Elliptical Road in Diliman,
Quezon City.
The farmers and their sympathizers presented their demands for what they called
"genuine agrarian reform". The KMP, led by its national president, Jaime Tadeo,
presented their problems and demands, among which were: (a) giving lands for
free to farmers; (b) zero retention of lands by landlords; and (c) stop
amortizations of land payments.
The dialogue between the farmers and the MAR officials began on January 15,
1987. The two days that followed saw a marked increase in people at the
encampment. It was only on January 19, 1987 that Jaime Tadeo arrived to meet
with then Minister Heherson Alvarez, only to be informed that the Minister can
only meet with him the following day. On January 20, 1987, the meeting was held
at the MAR conference room. Tadeo demanded that the minimum
comprehensive land reform program be granted immediately. Minister Alvarez,
for his part, can only promise to do his best to bring the matter to the attention of
then President Aquino, during the cabinet meeting on January 21, 1987.
Tension mounted the following day. The farmers, now on their seventh day of
encampment, barricaded the MAR premises and prevented the employees from
going inside their offices. They hoisted the KMP flag together with the Philippine
flag.
At around 6:30 p.m. of the same day, Minister Alvarez, in a meeting with Tadeo
and his leaders, advised the latter to instead wait for the ratification of the 1987
Constitutionand just allow the government to implement its comprehensive land
reform program. Tadeo, however, countered by saying that he did not believe in
the Constitution and that a genuine land reform cannot be realized under a
landlord-controlled Congress. A heated discussion ensued between Tadeo and
Minister Alvarez. This notwithstanding, Minister Alvarez suggested a negotiating
panel from each side to meet again the following day.
On January 22, 1987, Tadeo's group instead decided to march to Malacaang to
air their demands. Before the march started, Tadeo talked to the press and TV
media. He uttered fiery words, the most telling of which were: ". . . inalis namin
ang barikada bilang kahilingan ng ating Presidente, pero kinakailangan alisin din
niya ang barikada sa Mendiola sapagkat bubutasin din namin iyon at dadanak
ang dugo . . ." 4
The farmers then proceeded to march to Malacaang, from Quezon Memorial
Circle, at 10:00 a.m. They were later joined by members of other sectoral
organizations such as the Kilusang Mayo Uno (KMU), Bagong Alyansang
Makabayan (BAYAN), League of Filipino Students (LFS) and Kongreso ng
Pagkakaisa ng Maralitang Lungsod (KPML).
At around 1:00 p.m., the marchers reached Liwasang Bonifacio where they held
a brief program. It was at this point that some of the marchers entered the
eastern side of the Post Office Building, and removed the steel bars surrounding
the garden. Thereafter, they joined the march to Malacaang. At about 4:30 p.m.,
they reached C.M. Recto Avenue.
In anticipation of a civil disturbance, and acting upon reports received by the
Capital Regional Command (CAPCOM) that the rallyists would proceed to
Mendiola to break through the police lines and rush towards Malacaang,
CAPCOM Commander General Ramon E. Montao inspected the preparations
and adequacy of the government forces to quell impending attacks.
OPLAN YELLOW (Revised) was put into effect. Task Force Nazareno under the
command of Col. Cesar Nazareno was deployed at the vicinity of Malacaang.
The civil disturbance control units of the Western Police District under Police
Brigadier General Alfredo S. Lim were also activated.
Intelligence reports were also received that the KMP was heavily infiltrated by
CPP/NPA elements and that an insurrection was impending. The threat seemed
grave as there were also reports that San Beda College and Centro Escolar
University would be forcibly occupied.
In its report, the Citizens' Mendiola Commission (a body specifically tasked to
investigate the facts surrounding the incident, Commission for short) stated that
the government anti-riot forces were assembled at Mendiola in a formation of
three phalanges, in the following manner:
"(1)The first line was composed of policemen from police stations Nos.
3, 4, 6, 7, 8, 9 and 10 and the Chinatown detachment of the Western
Police District. Police Colonel Edgar Dula Torres, Deputy Superintendent
of the Western Police District, was designated as ground commander of
the CDC first line of defense. The WPD CDC elements were positioned
at the intersection of Mendiola and Legarda Streets after they were
ordered to move forward from the top of Mendiola bridge. The WPD
forces were in khaki uniform and carried the standard CDC equipment
aluminum shields, truncheons and gas masks.
(2)At the second line of defense about ten (10) yards behind the WPD
policemen were the elements of the Integrated National Police (INP)
Field Force stationed at Fort Bonifacio from the 61st and 62nd INP Field
Force, who carried also the standard CDC equipment truncheons,
shields and gas masks. The INP Field Force wasunder the command of
Police Major Demetrio dela Cruz.
(3)Forming the third line was the Marine Civil Disturbance Control
Battalion composed of the first and second companies of the Philippine
Marines stationed at Fort Bonifacio. The marines were all equipped with
shields, truncheons and M-16 rifles (armalites) slung at their
backs, under the command of Major Felimon B. Gasmin. The Marine
CDC Battalion was positioned in line formation ten (10) yards farther
behind the INP Field Force.
At the back of the marines were four (4) 6 x 6 army trucks, occupying the
entire width of Mendiola street, followed immediately by two water
cannons, one on each side of the street and eight fire trucks, four trucks
on each side of the street. The eight fire trucks from Fire District I of
Manila under Fire Superintendent Mario C. Tanchanco, were to supply
water to the two water cannons.
Stationed farther behind the CDC forces were the two Mobile Dispersal
Teams (MDT) each composed of two tear gas grenadiers, two spotters,
an assistant grenadier, a driver and the team leader.
In front of the College of the Holy Spirit near Gate 4 of Malacaang
stood the VOLVO Mobile Communications Van of the Commanding
General of CAPCOM/INP, General Ramon E. Montao. At this
command post, after General Montao had conferred with TF Nazareno
Commander, Colonel Cezar Nazareno, about the adequacy and
readiness of his forces, it was agreed that Police General Alfredo S.
Lim would designate Police Colonel Edgar Dula Torres and Police Major
Conrado Francisco as negotiators with the marchers. Police General Lim
then proceeded to the WPD CDC elements already positioned at the foot
of Mendiola bridge to relay to Police Colonel Torres and Police Major
Francisco the instructions that the latter would negotiate with the
marchers." 5 (Emphasis supplied)
The marchers, at around 4:30 p.m., numbered about 10,000 to 15,000. From
C.M. Recto Avenue, they proceeded toward the police lines. No dialogue took
place between the marchers and the anti-riot squad. It was at this moment that a
clash occurred and, borrowing the words of the Commission "pandemonium
broke loose". The Commission stated in its findings, to wit:
". . . There was an explosion followed by throwing of pillboxes, stones
and bottles. Steel bars, wooden clubs and lead pipes were used against
the police. The police fought back with their shields and truncheons. The
police line was breached. Suddenly shots were heard. The
demonstrators disengaged from the government forces and retreated
towards C.M. Recto Avenue. But sporadic firing continued from the
government forces.

After the firing ceased, two MDTs headed by Lt. Romeo Paguinto and Lt.
Laonglaan Goce sped towards Legarda Street and lobbed tear gas at
the remaining rallyist still grouped in the vicinity of Mendiola. After
dispersing the crowd, the two MDTs, together with the two WPD MDTs,
proceeded to Liwasang Bonifacio upon order of General Montao to
disperse the rallyists assembled thereat. Assisting the MDTs were a
number of policemen from the WPD, attired in civilian clothes with white
head bands, who were armed with long firearms." 6 (Emphasis ours)
After the clash, twelve (12) marchers were officially confirmed dead, although
according to Tadeo, there were thirteen (13) dead, but he was not able to give
the name and address of said victim. Thirty-nine (39) were wounded by gunshots
and twelve (12) sustained minor injuries, all belonging to the group of the
marchers.
Of the police and military personnel, three (3) sustained gunshot wounds and
twenty (20) suffered minor physical injuries such as abrasions, contusions and
the like.
In the aftermath of the confrontation, then President Corazon C. Aquino issued
Administrative Order No. 11, 7 (A.O. 11, for brevity) dated January 22, 1987,
which created the Citizens' Mendiola Commission. The body was composed of
retired Supreme Court Justice Vicente Abad Santos as Chairman, retired
Supreme Court Justice Jose Y. Feria and Mr. Antonio U. Miranda, both as
members. A.O. 11 stated that the Commission was created precisely for the
"purpose of conducting an investigation of the disorder, deaths, and casualties
that took place in the vicinity of Mendiola Bridge and Mendiola Street and Claro
M. Recto Avenue, Manila, in the afternoon of January 22, 1987". The
Commission was expected to have submitted its findings not later than February
6, 1987. But it failed to do so. Consequently, the deadline was moved to
February 16, 1987 by Administrative Order No. 13. Again, the Commission was
unable to meet this deadline. Finally, on February 27, 1987, it submitted its
report, in accordance with Administrative Order No. 17, issued on February 11,
1987.
In its report, the Commission recapitulated its findings, to wit:
"(1)The march to Mendiola of the KMP led by Jaime Tadeo, together
with the other sectoral groups, was not covered by any permit as
required under Batas Pambansa Blg. 880, the Public Assembly Act of
1985, in violation of paragraph (a) Section 13, punishable under
paragraph (a), Section 14 of said law.
(2)The crowd dispersal control units of the police and the military were
armed with .38 and .45 caliber handguns, and M-16 armalites, which is a
prohibited act under paragraph 4(g), Section 13, and punishable under
paragraph (b), Section 14 of Batas Pambansa Blg. 880.
(3)The security men assigned to protect the WPD, INP Field Force, the
Marines and supporting military units, as well as the security officers of
the police and military commanders were in civilian attire in violation of
paragraph (a), Section 10, Batas Pambansa 880.
(4)There was unnecessary firing by the police and military crowd
dispersal control units in dispersing the marchers, a prohibited act under
paragraph (e), Section 13, and punishable under paragraph (b), Section
14, Batas Pambansa Blg. 880.
(5)The carrying and use of steel bars, pillboxes, darts, lead pipe, wooden
clubs with spikes, and guns by the marchers as offensive weapons are
prohibited acts punishable under paragraph (g), Section 13, and
punishable under paragraph (e), Section 14 of Batas Pambansa Blg.
880.
(6)The KMP farmers broke off further negotiations with the MAR officials
and were determined to march to Malacaang, emboldened as they are,
by the inflammatory and incendiary utterances of their leader, Jaime
Tadeo "bubutasin namin ang barikada. Dadanak and dugo . . . Ang
nagugutom na magsasaka ay gagawa ng sariling butas . . ."
(7)There was no dialogue between the rallyists and the government
forces. Upon approaching the intersections of Legarda and Mendiola,
the marchers began pushing the police lines and penetrated and broke
through the first line of the CDC contingent.
(8)The police fought back with their truncheons and shields. They stood
their ground but the CDC line was breached. There ensued gunfire from
both sides. It is not clear who started the firing.
(9)At the onset of the disturbance and violence, the water cannons and
tear gas were not put into effective use to disperse the rioting crowd.
(10)The water cannons and fire trucks were not put into operation
because (a) there was no order to use them; (b) they were incorrectly
prepositioned; and (c) they were out of range of the marchers.
(11)Tear gas was not used at the start of the disturbance to disperse the
rioters. After the crowd had dispersed and the wounded and dead were
being carried away, the MDTs of the police and the military with their
tear gas equipment and components conducted dispersal operations in
the Mendiola area and proceeded to Liwasang Bonifacio to disperse the
remnants of the marchers.
(12)No barbed wire barricade was used in Mendiola but no official
reason was given for its absence." 8
From the results of the probe, the Commission recommended 9 the criminal
prosecution of four unidentified, uniformed individuals, shown either on tape or in
pictures, firing at the direction of the marchers. In connection with this, it was the
Commission's recommendation that the National Bureau of Investigation (NBI) be
tasked to undertake investigations regarding the identities of those who actually
fired their guns that resulted in the death of or injury to the victims of the incident.
The Commission also suggested that all the commissioned officers of both the
Western Police District and the INP Field Force, who were armed during the
incident, be prosecuted for violation of paragraph 4(g) of Section 13, Batas
Pambansa Blg. 880, the Public Assembly Act of 1985. The Commission's
recommendation also included the prosecution of the marchers, for carrying
deadly or offensive weapons, but whose identities have yet to be established. As
for Jaime Tadeo, the Commission said that he should be prosecuted both for
violation of paragraph (a), Section 13, Batas Pambansa Blg. 880 for holding the
rally without a permit and for violation of Article 142, as amended, of the Revised
Penal Code for inciting to sedition. As for the following officers, namely: (1) Gen.
Ramon E. Montao; (2) Police Gen. Alfredo S. Lim; (3) Police Gen. Edgar Dula
Torres; (4) Police Maj. Demetrio dela Cruz; (5) Col. Cezar Nazareno; and (5)
Maj. Felimon Gasmin, for their failure to make effective use of their skill and
experience in directing the dispersal operations in Mendiola, administrative
sanctions were recommended to be imposed. LLpr
The last and the most significant recommendation of the Commission was for the
deceased and wounded victims of the Mendiola incident to be compensated by
the government. It was this portion that petitioners (Caylao group) invoke in their
claim for damages from the government.
Notwithstanding such recommendation, no concrete form of compensation was
received by the victims. Thus, on July 27, 1987, herein petitioners, (Caylao
group) filed a formal letter of demand for compensation from the
Government. 10 This formal demand was indorsed by the office of the Executive
Secretary to the Department of Budget and Management (DBM) on August 13,
1987. The House Committee on Human Rights, on February 10, 1988,
recommended the expeditious payment of compensation to the Mendiola
victims. 11
After almost a year, on January 20, 1988, petitioners (Caylao group) were
constrained to institute an action for damages against the Republic of the
Philippines, together with the military officers, and personnel involved in the
Mendiola incident, before the trial court. The complaint was docketed as Civil
Case No. 88-43351.
On February 23, 1988, the Solicitor General filed a Motion to Dismiss on the
ground that the State cannot be sued without its consent. Petitioners opposed
said motion on March 16, 1988, maintaining that the State has waived its
immunity from suit and that the dismissal of the instant action is contrary to both
the Constitution and the International Law on Human Rights.
Respondent Judge Sandoval, in his first questioned Order, dismissed the
complaint as against the Republic of the Philippines on the ground that there was
no waiver by the State. Petitioners (Caylao group) filed a Motion for
Reconsideration therefrom, but the same was denied by respondent judge in his
Order dated August 8, 1988. Consequently, Caylao and her co-petitioners filed
the instant petition.
On the other hand, the Republic of the Philippines, together with the military
officers and personnel impleaded as defendants in the court below, filed its
petition for certiorari.
Having arisen from the same factual beginnings and raising practically identical
issues, the two (2) petitions were consolidated and will therefore be jointly dealt
with and resolved in this Decision.
The resolution of both petitions revolves around the main issue of whether or not
the State has waived its immunity from suit.
Petitioners (Caylao group) advance the argument that the State has impliedly
waived its sovereign immunity from suit. It is their considered view that by the
recommendation made by the Commission for the government to indemnify the
heirs and victims of the Mendiola incident and by the public addresses made by
then President Aquino in the aftermath of the killings, the State has consented to
be sued.
Under our Constitution the principle of immunity of the government from suit is
expressly provided in Article XVI, Section 3. The principle is based on the very
essence of sovereignty, and on the practical ground that there can be no legal
right as against the authority that makes the law on which the right depends. 12 It
also rests on reasons of public policy that public service would be hindered,
and the public endangered, if the sovereign authority could be subjected to law
suits at the instance of every citizen and consequently controlled in the uses and
dispositions of the means required for the proper administration of the
government. 13

This is not a suit against the State with its consent.
Firstly, the recommendation made by the Commission regarding indemnification
of the heirs of the deceased and the victims of the incident by the government
does not in any way mean that liability automatically attaches to the State. It is
important to note that A.O. 11 expressly states that the purpose of creating the
Commission was to have a body that will conduct an "investigation of the
disorder, deaths and casualties that took place." 14 In the exercise of its
functions, A.O. 11 provides guidelines, and what is relevant to Our discussion
reads:
"1.Its conclusions regarding the existence of probable cause for the
commission of any offense and of the persons probably guilty of the
same shall be sufficient compliance with the rules on preliminary
investigation and the charges arising therefrom may be filed directly with
the proper court." 15
In effect, whatever may be the findings of the Commission, the same shall only
serve as the cause of action in the event that any party decides to litigate his/her
claim. Therefore, the Commission is merely a preliminary venue. The
Commission is not the end in itself. Whatever recommendation it makes cannot
in any way bind the State immediately, such recommendation not having become
final and executory. This is precisely the essence of it being a fact-finding body.
Secondly, whatever acts or utterances that then President Aquino may have
done or said, the same are not tantamount to the State having waived its
immunity from suit. The President's act of joining the marchers, days after the
incident, does not mean that there was an admission by the State of any liability.
In fact to borrow the words of petitioners (Caylao group), "it was an act of
solidarity by the government with the people". Moreover, petitioners rely on
President Aquino's speech promising that the government would address the
grievances of the rallyists. By this alone, it cannot be inferred that the State has
admitted any liability, much less can it be inferred that it has consented to the
suit.
Although consent to be sued may be given impliedly, still it cannot be maintained
that such consent was given considering the circumstances obtaining in the
instant case.
Thirdly, the case does not qualify as a suit against the State.
Some instances when a suit against the State is proper are: 16
(1)When the Republic is sued by name;
(2)When the suit is against an unincorporated government agency;
(3)When the suit is on its face against a government officer but the case
is such that ultimate liability will belong not to the officer but to the
government.
While the Republic in this case is sued by name, the ultimate liability does not
pertain to the government. Although the military officers and personnel, then
party defendants, were discharging their official functions when the incident
occurred, their functions ceased to be official the moment they exceeded their
authority. Based on the Commission findings, there was lack of justification by
the government forces in the use of firearms. 17 Moreover, the members of the
police and military crowd dispersal units committed a prohibited act under B.P.
Blg. 880 18 as there was unnecessary firing by them in dispersing the
marchers. 19
As early as 1954, this Court has pronounced that an officer cannot shelter
himself by the plea that he is a public agent acting under the color of his office
when his acts are wholly without authority. 20 Until recently in 1991, 21 this
doctrine still found application, this Court saying that immunity from suit cannot
institutionalize irresponsibility and non-accountability nor grant a privileged status
not claimed by any other official of the Republic. The military and police forces
were deployed to ensure that the rally would be peaceful and orderly as well as
to guarantee the safety of the very people that they are duty-bound to protect.
However, the facts as found by the trial court showed that they fired at the unruly
crowd to disperse the latter.
While it is true that nothing is better settled than the general rule that a sovereign
state and its political subdivisions cannot be sued in the courts except when it
has given its consent, it cannot be invoked by both the military officers to release
them from any liability, and by the heirs and victims to demand indemnification
from the government. The principle of state immunity from suit does not apply, as
in this case, when the relief demanded by the suit requires no affirmative official
action on the part of the State nor the affirmative discharge of any obligation
which belongs to the State in its political capacity, even though the officers or
agents who are made defendants claim to hold or act only by virtue of a title of
the state and as its agents and servants. 22 This Court has made it quite clear
that even a "high position in the government does not confer a license to
persecute or recklessly injure another." 23
The inescapable conclusion is that the State cannot be held civilly liable for the
deaths that followed the incident. Instead, the liability should fall on the named
defendants in the lower court. In line with the ruling of this court in Shauf vs.
Court of Appeals, 24 herein public officials, having been found to have acted
beyond the scope of their authority, may be held liable for damages.
WHEREFORE, finding no reversible error and no grave abuse of discretion
committed by respondent Judge in issuing the questioned orders, the instant
petitions are hereby DISMISSED.
SO ORDERED.
Narvasa, C . J ., Cruz, Feliciano, Padilla, Bidin, Grio-Aquino, Regalado, Davide,
Jr., Romero, Nocon, Bellosillo, Melo and Quiason, JJ., concur.
Gutierrez, Jr., J., on terminal leave.
||| (Republic v. Sandoval, G.R. No. 84607, 84645, March 19, 1993)

SECOND DIVISION
[G.R. No. 2947. October 19, 1906.]
THE UNITED STATES, complainant-appellee, vs.
VICENTE RUIZ, defendant-appellant.
Hartigan, Rohde, & Gutierrez, for appellant.
Solicitor-General Araneta, for appellee.
SYLLABUS
1.ESTAFA. To convict of estafa in this case it was not necessary to
prove that the defendant failed to deliver the same coins received. It is a legal
maxim that "one owes 'the same' as one receives, and that 'the same' is the
thing or amount itself or amount itself or its proper equivalent."
D E C I S I O N
ARELLANO, J p:
The defendant has been sentenced to five months' imprisonment
(arresto mayor) with the accessories of article 61 of the Penal Code, to pay to
the New York Life Insurance Co., of the city, the sum of $172.74, United
States currency, or its equivalent, P345.58, Philippine currency, or in case of
insolvency, to suffer subsidiary imprisonment to the extent of one-third of the
provincial penalty, and to pay the costs.
The defendant has appealed from the judgment, but has pointed out no
fundamental error. Article 535, paragraph 5, of the Penal Code, provides that
the crime ofestafa is committed by those who, to the prejudice of another,
convert or misappropriate money or any other chattel which they may have
received on deposit, on commission, or for administration. The accused
misappropriated money received in commission for that company for which he
was soliciting agent, to the amount expressed in the judgment. He has
consequently been guilty of the crime charged. One of the arguments
advanced by the defendant in this instance is that he who fails to deliver or
return the same thing which he was under obligation to return or deliver is
guilty of estafa, and that as the accused did not receive the money in question
in United States currency, he could not be guilty of misappropriating in United
States currency. The court did not convict him for having converted a chattel
received other than on commission - that is, received under any other title
than that included in the words "on deposit, on commission, or for
administration" - but convicted him for having misappropriated money
received on commission. To this end it was not necessary that he should have
failed to deliver the same coins received. It was sufficient if he failed to deliver
the money received under this circumstances. The code furthermore punish
as guilty of estafa he who converts to his own use any chattel received by
him, on deposit, commission, or for administration, or by virtue of any other
contract from which "arises the obligation of delivering it up, or returning," as
for example, comodato, pledge, and others. In this case the delinquent
converted specific thing which it was his duty to deliver or return.
Moreover, in the case of money, it is a legal maxim that "one owes 'the
same' as one receives, and that the same' is the thing or amount itself or its
proper equivalent." It is contended by the defense that no evidence has been
introduced in order to establish the equivalence between the two sums. This
is not correct inasmuch as the defendant himself, in his letters to the
complaining witness and in his testimony, indicates the rate of exchange upon
which be acted in collecting the insurance premiums, and issuing receipts
expressed in United States currency. It follows, therefore, that the judgment
appealed from is in accordance with law, with the exception that the words
"fifty-eight cents" should be amended to read "forty-eight cents." The
judgment is, therefore, affirmed in its entirely with the costs of this instance.
The amount of 345.58 pesos in the judgment is to be changed to 345.48
pesos, Philippine currency.
After the expiration of ten days from the entry of judgment the cause will
be remanded for execution. So ordered.
Torres, Mapa, Johnson, Carson, Willard, and Tracey, JJ., concur.
||| (US v. Ruiz, G.R. No. 2947, October 19, 1906)

THIRD DIVISION
[G.R. No. L-34548. November 29, 1988.]
RIZAL COMMERCIAL BANKING
CORPORATION, petitioner, vs. THE HONORABLE PACIFICO
P. DE CASTRO and PHILIPPINE VIRGINIA TOBACCO
ADMINISTRATION, respondents.
Meer, Meer & Meer for petitioner.
The Solicitor General for respondents.
SYLLABUS
1.REMEDIAL LAW; PROVISIONAL REMEDIES; ATTACHMENT;
GARNISHMENT; BANK NOT LIABLE FOR RELEASING DEPOSITOR'S FUND
SUBJECT OF GARNISHMENT. Petitioner bank cannot be held solidarily liable
with the judgment creditor for reimbursement of the garnished funds to the
depositor because it merely obeyed a mandatory court directive to deliver the
amount by check to the sheriff.
2.ID.; ID.; ID.; ID.; ID.; GARNISHED FUNDS ARE IN CUSTODY LEGIS. Upon
the order of garnishment, the funds are in custodia legis. Subsequent
encashment by the sheriff is in exercise of the court's power of control over the
funds, and is not the bank's concern.
3.ID.; ID.; ID.; ID.; ID.; SUBSEQUENT DECLARATION OF NULLITY OF COURT
ORDER DOES NOT PREJUDICE BANK. The bank's compliance with the court
order before the decree of nullity should not work to its prejudice, the
presumption being that judicial orders are valid and issued in the regular
performance of the duties of the court.
4.POLITICAL LAW; PUBLIC CORPORATIONS, PHILIPPINE VIRGINIA
TOBACCO ADMINISTRATION, AN ORDINARY CORPORATION. The
Philippine Virginia Tobacco Corporation is an ordinary corporation subject to the
Corporation Law, and has a personality separate and distinct from the
government which owns and controls it.
5.ID.; ID.; ID.; FUNDS CAN BE GARNISHED; RATIONALE. The funds of the
PVTA are not public funds therefore not exempt from garnishment. When the
government enters into commercial business, it abandons its sovereign capacity
and is to be treated like any other corporation.
D E C I S I O N
CORTES, J p:
The crux of the instant controversy dwells on the liability of a bank for releasing
its depositor's funds upon orders of the court, pursuant to a writ of garnishment. If
in compliance with the court order, the bank delivered the garnished amount to
the sheriff, who in turn delivered it to the judgment creditor, but subsequently, the
order of the court directing payment was set aside by the same judge, should the
bank be held solidarily liable with the judgment creditor to its depositor for
reimbursement of the garnished funds? The Court does not think so.
In Civil Case No. Q-12785 of the Court of First Instance of Rizal, Quezon City
Branch IX entitled "Badoc Planters, Inc. versus Philippine Virginia Tobacco
Administration, et al.," which was an action for recovery of unpaid tobacco
deliveries, an Order (Partial Judgment) was issued on January 15, 1970 by the
Hon. Lourdes P. San Diego, then Presiding Judge, ordering the defendants
therein to pay jointly and severally, the plaintiff Badoc Planters, Inc. (hereinafter
referred to as "BADOC") within 48 hours the aggregate amount of P206,916.76,
with legal interests thereon.
On January 26, 1970, BADOC filed an Urgent Ex-Parte Motion for a Writ of
Execution of the said Partial Judgment which was granted on the same day by
the herein respondent judge who acted in place of the Hon. Judge San Diego
who had just been elevated as a Justice of the Court of Appeals. Accordingly, the
Branch Clerk of Court on the very same day, issued a Writ of Execution
addressed to Special Sheriff Faustino Rigor, who then issued a Notice of
Garnishment addressed to the General Manager and/or Cashier of Rizal
Commercial Banking Corporation (hereinafter referred to as RCBC), the
petitioner in this case, requesting a reply within five (5) days to said garnishment
as to any property which the Philippine Virginia Tobacco Administration
(hereinafter referred to as "PVTA") might have in the possession or control of
petitioner or of any debts owing by the petitioner to said defendant. Upon receipt
of such Notice, RCBC notified PVTA thereof to enable the PVTA to take the
necessary steps for the protection of its own interest [Record on Appeal, p. 36]. cdll
Upon an Urgent Ex-Parte Motion dated January 27, 1970 filed by BADOC, the
respondent Judge issued an Order granting the Ex-Parte Motion and directing
the herein petitioner "to deliver in check the amount garnished to Sheriff Faustino
Rigor and Sheriff Rigor in turn is ordered to cash the check and deliver the
amount to the plaintiff's representative and/or counsel on record." [Record on
Appeal, p. 20; Rollo, p. 5.] In compliance with said Order, petitioner delivered to
Sheriff Rigor a certified check in the sum of P206,916.76.
Respondent PVTA filed a Motion for Reconsideration dated February 26, 1970
which was granted in an Order dated April 6, 1970, setting aside the Orders of
Execution and of Payment and the Writ of Execution and ordering petitioner and
BADOC "to restore, jointly and severally, the account of PVTA with the said bank
in the same condition and state it was before the issuance of the aforesaid
Orders by reimbursing the PVTA of the amount of P206, 916.76 with interests at
the legal rate from January 27, 1970 until fully paid to the account of the PVTA.
This is without prejudice to the right of plaintiff to move for the execution of the
partial judgment pending appeal in case the motion for reconsideration is denied
and appeal is taken from the said partial judgment." [Record on Appeal, p.58.].
The Motion for Reconsideration of the said Order of April 6, 1970 filed by herein
petitioner was denied in the Order of respondent judge dated June 10, 1970 and
on June 19, 1970, which was within the period for perfecting an appeal, the
herein petitioner filed a Notice of Appeal to the Court of Appeals from the said
Orders.
This case was then certified by the Court of Appeals to this Honorable Court,
involving as it does purely questions of law.
The petitioner raises two principal queries in the instant case: 1) Whether Or not
PVTA funds are public funds not subject to garnishment; and 2) Whether or not
the respondent Judge correctly ordered the herein petitioner to reimburse the
amount paid to the Special Sheriff by virtue of the execution issued pursuant to
the Order/Partial Judgment dated January 15, 1970.
The record reveals that on February 2, 1970, private respondent PVTA filed a
Motion for Reconsideration of the Order/Partial Judgment of January 15, 1970.
This was granted and the aforementioned Partial Judgment was set aside. The
case was set for hearings on November 4, 9 and 11, 1970 [Rollo, pp. 205-207.]
However, in view of the failure of plaintiff BADOC to appear on the said dates,
the lower court ordered the dismissal of the case against PVTA for failure to
prosecute [Rollo, p. 208.]. prLL
It must be noted that the Order of respondent Judge dated April 6, 1970 directing
the plaintiff to reimburse PVTA the amount of P206,916.76 with interests
became final as to said plaintiff who failed to even file a motion for
reconsideration, much less to appeal from the said Order. Consequently, the
order to restore the account of PVTA with RCBCin the same condition and state
it was before the issuance of the questioned orders must be upheld as to the
plaintiff, BADOC.
However, the questioned Order of April 6, 1970 must be set aside insofar as it
ordered the petitioner RCBC, jointly and severally with BADOC to reimburse
PVTA.
The petitioner merely obeyed a mandatory directive from the respondent Judge
dated January 27, 1970, ordering petitioner "to deliver in check the amount
garnished to Sheriff Faustino Rigor and Sheriff Rigor is in turn ordered to cash
the check and deliver the amount to the plaintiff's representative and/or counsel
on record." [Record on Appeal, p. 20.].
PVTA however claims that the manner in which the bank complied with the
Sheriff's Notice of Garnishment indicated breach of trust and dereliction of duty
on the part of the bank as custodian of government funds. It insistently urges that
the premature delivery of the garnished amount by RCBC to the special sheriff
even in the absence of a demand to deliver made by the latter, before the
expiration of the five-day period given to reply to the Notice of Garnishment,
without any reply having been given thereto nor any prior authorization from its
depositor, PVTA and even if the court's order of January 27, 1970 did not require
the bank to immediately deliver the garnished amount constitutes such lack of
prudence as to make it answerable jointly and severally with the plaintiff for the
wrongful release of the money from the deposit of the PVTA. The respondent
Judge in his controverted Order sustained such contention and blamed RCBC for
the supposed "hasty release of the amount from the deposit of the PVTA without
giving PVTA a chance to take proper steps by informing it of the action being
taken against its deposit, thereby observing with prudence the five-day period
given to it by the sheriff." [Rollo, p. 81.]
Such allegations must be rejected for lack of merit. In the first place, it should be
pointed out that RCBC did not deliver the amount on the strength solely of a
Notice of Garnishment; rather, the release of the funds was made pursuant to the
aforesaid Order of January 27, 1970. While the Notice of Garnishment dated
January 26, 1970 contained no demand of payment as it was a mere request for
petitioner to withhold any funds of the PVTA then in its possession, the Order of
January 27, 1970 categorically required the delivery in check of the amount
garnished to the special sheriff, Faustino Rigor.
In the second place, the bank had already filed a reply to the Notice of
Garnishment stating that it had in its custody funds belonging to the PVTA,
which, in fact was the basis of the plaintiff in filing a motion to secure delivery of
the garnished amount to the sheriff. [See Rollo, p. 93.].
Lastly, the bank, upon the receipt of the Notice of Garnishment, duly informed
PVTA thereof to enable the latter to take the necessary steps for the protection of
its own interest [Record on Appeal, p. 36]. cdll

It is important to stress, at this juncture, that there was nothing irregular in the
delivery of the funds of PVTA by check to the sheriff, whose custody is equivalent
to the custody of the court, he being a court officer. The order of the court dated
January 27, 1970 was composed of two parts, requiring: 1) RCBC to deliver
in check the amount garnished to the designated sheriff and 2) the sheriff in turn
to cash the check and deliver the amount to the plaintiff's representative and/or
counsel on record. It must be noted that in delivering the garnished amount in
check to the sheriff, the RCBC did not thereby make any payment, for the law
mandates that delivery of a check does not produce the effect of payment until it
has been cashed. [Article 1249, Civil Code.].
Moreover, by virtue of the order of garnishment, the same was placed in custodia
legis and therefore, from that time on, RCBC was holding the funds subject to the
orders of the court a quo. That the sheriff, upon delivery of the check to him
by RCBC encashed it and turned over the proceeds thereof to the plaintiff was no
longer the concern ofRCBC as the responsibility over the garnished funds
passed to the court. Thus, no breach of trust or dereliction of duty can be
attributed to RCBC in delivering its depositor's funds pursuant to a court order
which was merely in the exercise of its power of control over such funds.
. . . The garnishment of property to satisfy a writ of execution operates
as an attachment and fastens upon the property a lien by which the
property is brought under the jurisdiction of the court issuing the writ. It is
brought into custodia legis, under the sole control of such court . . .
[De Leon v. Salvador, G.R. Nos. L-30871 and L-31603, December 28,
1970, 36 SCRA 567, 574.].
The respondent judge however, censured the petitioner for having released the
funds "simply on the strength of the Order of the court which, far from ordering an
immediate release of the amount involved, merely serves as a standing authority
to make the release at the proper time as prescribed by the rules." [Rollo, p. 81.]
This argument deserves no serious consideration. As stated earlier, the order
directing the bank to deliver the amount to the sheriff was distinct and separate
from the order directing the sheriff to encash the said check. The bank had no
choice but to comply with the order demanding delivery of the garnished amount
in check. The very tenor of the order called for immediate compliance therewith.
On the other hand, the bank cannot be held liable for the subsequent
encashment of the check as this was upon order of the court in the exercise of its
power of control over the funds placed in custodia legis by virtue of the
garnishment.
In a recent decision [Engineering Construction Inc., v. National Power
Corporation, G.R. No. L-34589, June 29, 1988] penned by the now Chief Justice
Marcelo Fernan, this Court absolved a garnishee from any liability for prompt
compliance with its order for the delivery of the garnished funds. The rationale
behind such ruling deserves emphasis in the present case:
But while partial restitution is warranted in favor of NPC, we find that the
Appellate Court erred in not absolving MERALCO, the garnishee, from
its obligations to NPC with respect to the payment of ECI of
P1,114,543.23, thus in effect subjecting MERALCO to double liability.
MERALCO should not have been faulted for its prompt obedience to a
writ of garnishment. Unless there are compelling reasons such as: a
defect on the face of the Writ or actual knowledge on the part of the
garnishee of lack of entitlement on the part of the garnisher, it is not
incumbent upon the garnishee to inquire or to judge for itself whether or
not the order for the advance execution of a judgment is valid.
Section 8, Rule 57 of the Rules of Court provides:
Effect of attachment of debts and credits. All persons
having in their possession or under their control any credits or
other similar personal property belonging to the party against
whom attachment is issued, or owing any debts to the same, at
the time of service upon them of a copy of the order of attachment
and notice as provided in the last preceding section, shall be
liable to the applicant for the amount of such credits, debts or
other property, until the attachment be discharged, or any
judgment recovered by him be satisfied, unless such property be
delivered or transferred, or such debts be paid, to the clerk, sheriff
or other proper officer of the court issuing the attachment.
Garnishment is considered as a specie of attachment for reaching
credits belonging to the judgment debtor and owing to him from a
stranger to the litigation. Under the above-cited rule, the garnishee [the
third person] is obliged to deliver the credits, etc. to the proper officer
issuing the writ and "the law exempts from liability the person having in
his possession or under his control any credits or other personal
property belonging to the defendant, . . ., if such property be delivered or
transferred, . . ., to the clerk, sheriff, or other officer of the court in which
the action is pending. [3 Moran, Comments on the Rules of Court 34
(1970 ed.)].
Applying the foregoing to the case at bar, MERALCO, as garnishee,
after having been judicially compelled to pay the amount of the judgment
represented by funds in its possession belonging to the judgment debtor
or NPC, should be released from all responsibilities over such amount
after delivery thereof to the sheriff. The reason for the rule is self-evident.
To expose garnishees to risks for obeying court orders and processes
would only undermine the administration of justice. [Emphasis supplied.]
The aforequoted ruling thus bolsters RCBC's stand that its immediate compliance
with the lower court's order should not have been met with the harsh penalty of
joint and several liability. Nor can its liability to reimburse PVTA of the amount
delivered in check be premised upon the subsequent declaration of nullity of the
order of delivery. As correctly pointed out by the petitioner:
xxx xxx xxx
That the respondent Judge, after his Order was enforced, saw fit to
recall said Order and decree its nullity, should not prejudice one who
dutifully abided by it, the presumption being that judicial orders are valid
and issued in the regular performance of the duties of the Court"
[Section 5(m) Rule 131, Revised Rules of Court]. This should operate
with greater force in relation to the herein petitioner which, not being a
party in the case, was just called upon to perform an act in accordance
with a judicial fiat. A contrary view will invite disrespect for the majesty of
the law and induce reluctance in complying with judicial orders out of
fear that said orders might be subsequently invalidated and thereby
expose one to suffer some penalty or prejudice for obeying the same.
And this is what will happen were the controversial orders to be
sustained. We need not underscore the danger of this as a precedent.
xxx xxx xxx
[Brief for the Petitioner, Rollo, p. 212.]
From the foregoing, it may be concluded that the charge of breach of trust and/or
dereliction of duty as well as lack of prudence in effecting the immediate payment
of the garnished amount is totally unfounded. Upon receipt of the Notice of
Garnishment, RCBC duly informed PVTA thereof to enable the latter to take the
necessary steps for its protection. However, right on the very next day after its
receipt of such notice, RCBC was already served with the Order requiring
delivery of the garnished amount. Confronted as it was with a mandatory
directive, disobedience to which exposed it to a contempt order, it had no choice
but to comply.
The respondent Judge nevertheless held that the liability of RCBC for the
reimbursement of the garnished amount is predicated on the ruling of the
Supreme Court in the case of Commissioner of Public Highways v. Hon. San
Diego [G.R. No. L-30098, February 18, 1970, 31 SCRA 616] which he found
practically on all fours with the case at bar. Cdpr
The Court disagrees.
The said case which reiterated the rule in Republic v. Palacio [G.R. No. L-20322,
May 29, 1968, 23 SCRA 899] that government funds and properties may not be
seized under writs of execution or garnishment to satisfy such judgment is
definitely distinguishable from the case at bar.
In the Commissioner of Public Highways case [supra], the bank which
precipitately allowed the garnishment and delivery of the funds failed to inform its
depositor thereof, charged as it was with knowledge of the nullity of the writ of
execution and notice of garnishment against government funds. In the
aforementioned case, the funds involved belonged to the Bureau of Public
Highways, which being an arm of the executive branch of the government, has
no personality of its own separate from the National Government. The funds
involved were government funds covered by the rule on exemption from
execution.
This brings us to the first issue raised by the petitioner: Are the PVTA funds
public funds exempt from garnishment? The Court holds that they are not.
Republic Act No. 2265 created the PVTA as an ordinary corporation with all the
attributes of a corporate entity subject to the provisions of the Corporation Law.
Hence, it possesses the power "to sue and be sued" and "to acquire and hold
such assets and incur such liabilities resulting directly from operations authorized
by the provisions of this Act or as essential to the proper conduct of such
operations." [Section 3, Republic Act No. 2265.].
Among the specific powers vested in the PVTA are: 1) to buy Virginia tobacco
grown in the Philippines for resale to local bona fide tobacco manufacturers and
leaf tobacco dealers [Section 4(b), R.A. No. 2265]; 2) to enter into, make and
execute contracts of any kind as may be necessary or incidental to the
attainment of its purpose with any person, firm or corporation, with the
Government of the Philippines or with any foreign government, subject to existing
laws [Section 4(h), R.A. No. 2265]; and 3) generally, to exercise all the powers of
a corporation under the Corporation Law, insofar as they are not inconsistent
with the provisions of this Act [Section 4(k), R.A. No. 2265.].

From the foregoing, it is clear that PVTA has been endowed with a personality
distinct and separate from the government which owns and controls it.
Accordingly, this Court has heretofore declared that the funds of the PVTA can
be garnished since "funds of public corporation which can sue and be sued were
not exempt from garnishment" [Philippine National Bank v. Pabalan, G.R. No. L-
33112, June 15, 1978, 83 SCRA 595, 598.].
In National Shipyards and Steel Corp. v. CIR [G.R. No. L-17874, August 31,
1964, 8 SCRA 781], this Court held that the allegation to the effect that the funds
of the NASSCO are public funds of the government and that as such, the same
may not be garnished, attached or levied upon is untenable for, as a
government-owned or controlled corporation, it has a personality of its own,
distinct and separate from that of the government. This court has likewise ruled
that other government-owned and controlled corporations like National Coal
Company, the National Waterworks and Sewerage Authority (NAWASA), the
National Coconut Corporation (NACOCO), the National Rice and Corn
Corporation (NARIC) and the Price Stabilization Council (PRISCO), which
possess attributes similar to those of the PVTA are clothed with personalities of
their own, separate and distinct from that of the government [National Coal
Company v. Collector of Internal Revenue, 46 Phil. 583 (1924); Bacani and
Matoto v. National Coconut Corporation et al., 100 Phil. 471 (1956); Reotan v.
National Rice & Corn Corporation, G.R. No. L-16223, February 27, 1962, 4
SCRA 418.] The rationale in vesting it with a separate personality is not difficult
to find. It is well-settled that when the government enters into commercial
business, it abandons its sovereign capacity and is to be treated like any other
corporation [Manila Hotel Employees' Association v. Manila Hotel Co. and CIR,
73 Phil. 734 (1941).]
Accordingly, as emphatically expressed by this Court in a 1978 decision,
"garnishment was the appropriate remedy for the prevailing party which could
proceed against the funds of a corporate entity even if owned or controlled by the
government" inasmuch as "by engaging in a particular business thru the
instrumentality of a corporation, the government divests itself pro hac vice of its
sovereign character, so as to render the corporation subject to the rules of law
governing private corporations" [Philippine National Bank v. CIR, G.R No. L-
32667, January 31, 1978, 81 SCRA 314, 319.]
Furthermore, in the case of PVTA, the law has expressly allowed its funds to
answer for various obligations, including the one sought to be enforced by
plaintiff BADOC in this case (i.e. for unpaid deliveries of tobacco). Republic Act
No. 4155, which discounted the erstwhile support given by the Central Bank to
PVTA, established in lieu thereof a "Tobacco Fund" to be collected from the
proceeds of fifty per centum of the tariff or taxes of imported leaf tobacco and
also fifty per centum of the specific taxes on locally manufactured Virginia type
cigarettes. LLpr
Section 5 of Republic Act No. 4155 provides that this fund shall be expended for
the support or payment of:
1.Indebtedness of the Philippine Virginia Tobacco Administration and the
former Agricultural Credit and Cooperative Financing Administration to
FACOMAS and farmers and planters regarding Virginia tobacco
transactions in previous years;
2.Indebtedness of the Philippine Virginia Tobacco Administration and the
former Agricultural Credit and Cooperative Financing Administration to
the Central Bank in gradual amounts regarding Virginia tobacco
transactions in previous years;
3.Continuation of the Philippine Virginia Tobacco Administration support
and subsidy operations including the purchase of locally grown and
produced Virginia leaf tobacco, at the present support and subsidy
prices, its procurement, redrying, handling, warehousing and disposal
thereof, and the redrying plants trading within the purview of their
contracts;
4.Operational, office and field expenses, and the establishment of the
Tobacco Research and Grading Institute. [Emphasis supplied.].
Inasmuch as the Tobacco Fund, a special fund, was by law, earmarked
specifically to answer obligations incurred by PVTA in connection with its
proprietary and commercial operations authorized under the law, it follows that
said funds may be proceeded against by ordinary judicial processes such as
execution and garnishment. If such funds cannot be executed upon or garnished
pursuant to a judgment sustaining the liability of the PVTA to answer for its
obligations, then the purpose of the law in creating the PVTA would be defeated.
For it was declared to be a national policy, with respect to the local Virginia
tobacco industry, to encourage the production of local Virginia tobacco of the
qualities needed and in quantities marketable in both domestic and foreign
markets, to establish this industry on an efficient and economic basis, and to
create a climate conducive to local cigarette manufacture of the qualities desired
by the consuming public, blending imported and native Virginia leaf tobacco to
improve the quality of locally manufactured cigarettes [Section 1, Republic Act
No. 4155.].
The Commissioner of Public Highways case is thus distinguishable from the case
at bar. In said case, the Philippine National Bank (PNB) as custodian of funds
belonging to the Bureau of Public Highways, an agency of the government,
was chargeable with knowledge of the exemption of such government funds from
execution and garnishmentpursuant to the elementary precept that public funds
cannot be disbursed without the appropriation required by law. On the other
hand, the same cannot hold true for RCBCas the funds entrusted to its custody,
which belong to a public corporation, are in the nature of private funds insofar as
their susceptibility to garnishment is concerned. Hence,RCBC cannot be charged
with lack of prudence for immediately complying with the order to deliver the
garnished amount. Since the funds in its custody are precisely meant for the
payment of lawfully-incurred obligations, RCBC cannot rightfully resist a court
order to enforce payment of such obligations. That such court order subsequently
turned out to have been erroneously issued should not operate to the detriment
of one who complied with its clear order. LLphil
Finally, it is contended that RCBC was bound to inquire into the legality and
propriety of the Writ of Execution and Notice of Garnishment issued against the
funds of the PVTA deposited with said bank. But the bank was in no position to
question the legality of the garnishment since it was not even a party to the case.
As correctly pointed out by the petitioner, it had neither the personality nor the
interest to assail or controvert the orders of respondent Judge. It had no choice
but to obey the same inasmuch as it had no standing at all to impugn the validity
of the partial judgment rendered in favor of the plaintiff or of the processes issued
in execution of such judgment.
RCBC cannot therefore be compelled to make restitution solidarily with the
plaintiff BADOC. Plaintiff BADOC alone was responsible for the issuance of the
Writ of Execution and Order of Payment and so, the plaintiff alone should bear
the consequences of a subsequent annulment of such court orders; hence, only
the plaintiff can be ordered to restore the account of the PVTA.
WHEREFORE, the petition is hereby granted and the petitioner is ABSOLVED
from any liability to respondent PVTA for reimbursement of the funds garnished.
The questioned Order of the respondent Judge ordering the petitioner, jointly and
severally with BADOC, to restore the account of PVTA are modified accordingly.
SO ORDERED.
Fernan, C.J., Gutierrez, Jr., Feliciano and Bidin, JJ., concur.
||| (Rizal Commercial Banking Corp. v. De Castro, G.R. No. L-34548, November
29, 1988)

THIRD DIVISION
[G.R. Nos. 89898-99. October 1, 1990.]
MUNICIPALITY OF MAKATI, petitioner, vs. THE
HONORABLE COURT OF APPEALS, HON. SALVADOR P. DE
GUZMAN, JR., as Judge RTC of Makati, Branch CXLII,
ADMIRAL FINANCE CREDITORS CONSORTIUM, INC., and
SHERIFF SILVINO R. PASTRANA, respondents.
Defante & Elegado for petitioner.
Roberto B. Lugue for private respondent Admiral Finance Creditors' Consortium,
Inc.
R E S O L U T I O N
CORTES, J p:
The present petition for review is an off-shoot of expropriation proceedings
initiated by petitioner Municipality of Makati against private respondent Admiral
Finance Creditors Consortium, Inc., Home Building System & Realty Corporation
and one Arceli P. Jo, involving a parcel of land and improvements thereon
located at Mayapis St., San Antonio Village, Makati and registered in the
name of Arceli P. Jo under TCT No. S-5499. LLpr
It appears that the action for eminent domain was filed on May 20, 1986,
docketed as Civil Case No. 13699. Attached to petitioner's complaint was a
certification that a bank account (Account No. S/A 265-537154-3) had been
opened with the PNB Buendia Branch under petitioner's name containing the
sum of P417,510.00, made pursuant to the provisions of Pres. Decree No. 42.
After due hearing where the parties presented their respective appraisal reports
regarding the value of the property, respondent RTC judge rendered a decision
on June 4, 1987, fixing the appraised value of the property at P5,291,666.00, and
ordering petitioner to pay this amount minus the advanced
payment ofP338,160.00 which was earlier released to private respondent.
After this decision became final and executory, private respondent moved for the
issuance of a writ of execution. This motion was granted by respondent RTC
judge. After issuance of the writ of execution, a Notice of Garnishment dated
January 14, 1988 was served by respondent sheriff Silvino R. Pastrana upon the
manager of the PNB Buendia Branch. However, respondent sheriff was informed
that a "hold code" was placed on the account of petitioner. As a result of this,
private respondent filed a motion dated January 27, 1988 praying that an order
be issued directing the bank to deliver to respondent sheriff the amount
equivalent to the unpaid balance due under the RTC decision dated June 4,
1987.
Petitioner filed a motion to lift the garnishment, on the ground that the
manner of payment of the expropriation amount should be done in installments
which the respondent RTC judge failed to state in his decision. Private
respondent filed its opposition to the motion.
Pending resolution of the above motions, petitioner filed on July 20, 1988 a
"Manifestation" informing the court that private respondent was no longer the true
and lawful owner of the subject property because a new title over the property
had been registered in the name of Philippine Savings Bank, Inc. (PSB).
Respondent RTC judge issued an order requiring PSB to make available the
documents pertaining to its transactions over the subject property, and the PNB
Buendia Branch to reveal the amount in petitioner's account which was garnished
by respondent sheriff. In compliance with this order, PSB filed a manifestation
informing the court that it had consolidated its ownership over the property as
mortgagee/purchaser at an extrajudicial foreclosure sale held on April 20, 1987.
After several conferences, PSB and private respondent entered into a
compromise agreement whereby they agreed to divide between themselves the
compensation due from the expropriation proceedings.
Respondent trial judge subsequently issued an order dated September 8, 1988
which: (1) approved the compromise agreement; (2) ordered PNB Buendia
Branch to immediately release to PSB the sum of P4,953,506.45 which
corresponds to the balance of the appraised value of the subject property under
the RTC decision dated June 4, 1987, from the garnished account of petitioner;
and, (3) ordered PSB and private respondent to execute the necessary
deed of conveyance over the subject property in favorof petitioner. Petitioner's
motion to lift the garnishment was denied. LibLex
Petitioner filed a motion for reconsideration, which was duly opposed by private
respondent. On the other hand, for failure of the manager of the PNB Buendia
Branch to comply with the order dated September 8, 1988, private respondent
filed two succeeding motions to require the bank manager to show cause why he
should not be held in contempt of court. During the hearings conducted for the
above motions, the general manager of the PNB Buendia Branch, a Mr. Antonio
Bautista, informed the court that he was still waiting for proper authorization from
the PNB head office enabling him to make a disbursement for the amount so
ordered. For its part, petitioner contended that its funds at the PNB Buendia
Branch could neither be garnished nor levied upon execution, for to do so would
result in the disbursement of public funds without the proper appropriation
required under the law, citing the case of Republic of the Philippines
v. Palacio [G.R. No. L-20322, May 29, 1968, 23 SCRA 899].
Respondent trial judge issued an order dated December 21, 1988 denying
petitioner's motion for reconsideration on the ground that the doctrine enunciated
in Republic v.Palacio did not apply to the case because petitioner's PNB Account
No. S/A 265-537154-3 was an account specifically opened for the expropriation
proceedings of the subject property pursuant to Pres. Decree No. 42.
Respondent RTC judge likewise declared Mr. Antonio Bautista
guilty of contempt of court for his inexcusable refusal to obey the order dated
September 8, 1988, and thus ordered his arrest and detention until his
compliance with the said order.
Petitioner and the bank manager of PNB Buendia Branch then filed separate
petitions for certiorari with the Court of Appeals, which were eventually
consolidated. In a decision promulgated on June 28, 1989,
the Court of Appeals dismissed both petitions for lack of merit, sustained the
jurisdiction of respondent RTC judge over the funds contained in petitioner's PNB
Account No. 265-537154-3, and affirmed his authority to levy on such funds.
Its motion for reconsideration having been denied by the Court of Appeals,
petitioner now files the present petition for review with prayer for preliminary
injunction.
On November 20, 1989, the Court resolved to issue a temporary restraining
order enjoining respondent RTC judge, respondent sheriff, and their
representatives, from enforcing and/or carrying out the RTC order dated
December 21, 1988 and the writ of garnishment issued pursuant thereto. Private
respondent then filed its comment to the petition, while petitioner filed its reply.
Petitioner not only reiterates the arguments adduced in its petition before
the Court of Appeals, but also alleges for the first time that it has actually two
accounts with the PNB Buendia Branch, to wit:
xxx xxx xxx
(1)Account No. S/A 265-537154-3 exclusively for the
expropriation of the subject property, with an outstanding
balance of P99,743.94.
(2)Account No. S/A 263-530850-7 for statutory obligations and other
purposes of the municipal government, with a
balance of P170,098,421.72, as of July 12, 1989.
xxx xxx xxx
[Petition, pp. 6-7; Rollo, pp. 11-12.]
Because the petitioner has belatedly alleged only in this Court the
existence of two bank accounts, it may fairly be asked whether the second
account was opened only for the purpose of undermining the legal basis of the
assailed orders of respondent RTC judge and the
decision of the Court of Appeals, and strengthening its reliance on the doctrine
that public funds are exempted from garnishment or execution as enunciated
in Republic v. Palacio [supra.] At any rate, the Court will give petitioner the
benefit of the doubt, and proceed to resolve the principal issues presented based
on the factual circumstances thus alleged by petitioner.
Admitting that its PNB Account No. S/A 265-537154-3 was specifically opened
for expropriation proceedings it had initiated over the subject property, petitioner
poses no objection to the garnishment or the levy under execution of the funds
deposited therein amounting to P99,743.94. However, it is petitioner's main
contention that inasmuch as the assailed orders of respondent RTC judge
involved the net amount of P4,965,506.45, the funds garnished by respondent
sheriff in excess of P99,743.94, which are public funds earmarked for
the municipal government's other statutory obligations, are exempted from
execution without the proper appropriation required under the law.
There is merit in this contention. The funds deposited in the second PNB Account
No. S/A 263-530850-7 are public funds of the municipal government. In this
jurisdiction, well-settled is the rule that public funds are not subject to levy and
execution, unless otherwise provided for by statute [Republic v.
Palacio, supra.; The Commissioner of Public Highways v. San Diego, G.R. No. L-
30098, February 18, 1970, 31 SCRA 616]. More particularly, the
properties of a municipality, whether real or personal, which are necessary for
public use cannot be attached and sold at execution sale to satisfy a money
judgment against the municipality. Municipal revenues derived from taxes,
licenses and market fees, and which are intended primarily and exclusively for
the purpose of financing the governmental activities and
functions of the municipality, are exempt from execution [See Viuda De Tan Toco
v. The Municipal Council of Iloilo, 49 Phil. 52 (1926); The Municipality of Paoay,
Ilocos Norte v. Manaois, 86 Phil. 629 (1950); Municipality of San Miguel, Bulacan
v. Fernandez, G.R. No. 61744, June 25, 1984, 130 SCRA 56]. The foregoing rule
finds application in the case at bar. Absent a showing that
the municipal council ofMakati has passed an ordinance appropriating from its
public funds an amount corresponding to the balance due under the RTC
decision dated June 4, 1987, less the sum ofP99,743.94 deposited in Account
No. S/A 265-537154-3, no levy under execution may be validly effected on the
public funds of petitioner deposited in Account No. S/A 263-530850-7. llcd

Nevertheless, this is not to say that private respondent and PSB are left with no
legal recourse. Where a municipality fails or refuses, without justifiable reason, to
effect payment of a final money judgment rendered against it, the claimant may
avail of the remedy of mandamus in order to compel the enactment and
approval of the necessary appropriation ordinance, and the corresponding
disbursement of municipal funds therefor [See Viuda De Tan Toco v.
The Municipal Council of Iloilo, supra; Baldivia v. Lota, 107 Phil. 1099
(1960); Yuviengco v. Gonzales, 108 Phil. 247 (1960)].
In the case at bar, the validity of the RTC decision dated June 4, 1987 is not
disputed by petitioner. No appeal was taken therefrom. For three years now,
petitioner has enjoyed possession and use of the subject property
notwithstanding its inexcusable failure to comply with its legal obligation to pay
just compensation. Petitioner has benefited from its possession of the property
since the same has been the site of Makati West High School since the school
year 1986-1987. This Court will not condone petitioner's blatant refusal to settle
its legal obligation arising from expropriation proceedings it had in fact initiated. It
cannot be over-emphasized that, within the context of the State's inherent
power of eminent domain,
. . . [j]ust compensation means not only the correct determination of the
amount to be paid to the owner of the land but also the payment of the
land within a reasonable time from its taking. Without prompt payment,
compensation cannot be considered "just" for the property owner is
made to suffer the consequence ofbeing immediately deprived of his
land while being made to wait for a decade or more before actually
receiving the amount necessary to cope with his loss [Coscolluela v. The
Honorable Court of Appeals, G.R. No. 77765, August 15, 1988, 164
SCRA 393, 400. See also Provincial Government of Sorsogon v. Vda. de
Villaroya, G.R. No. 64037, August 27, 1987, 153 SCRA 291].
The State's power of eminent domain should be exercised within the
bounds of fair play and justice. In the case at bar, considering that valuable
property has been taken, the compensation to be paid fixed and
the municipality is in full possession and utilizing the property for public purpose,
for three (3) years, the Court finds that the municipalityhas had more than
reasonable time to pay full compensation.
WHEREFORE, the Court Resolved to ORDER petitioner Municipality of Makati to
immediately pay Philippine Savings Bank, Inc. and private respondent the
amount ofP4,953,506.45. Petitioner is hereby required to submit to this Court a
report of its compliance with the foregoing order within a non-extendible
period of SIXTY (60) DAYS from the date of receipt of this resolution. LLjur
The order of respondent RTC judge dated December 21, 1988, which was
rendered in Civil Case No. 13699, is SET ASIDE and the temporary restraining
order issued by theCourt on November 20, 1989 is MADE PERMANENT.
SO ORDERED.
Fernan, C.J., Gutierrez, Jr., Feliciano and Bidin, JJ., concur.
||| (Municipality of Makati v. Court of Appeals, G.R. Nos. 89898-99, October 01,
1990)

EN BANC
[G.R. Nos. 55963 & 61045. February 27, 1991.]
SPOUSES JOSE FONTANILLA and
VIRGINIA FONTANILLA, petitioners, vs. HONORABLE
INOCENCIO D. MALIAMAN and NATIONAL IRRIGATION
ADMINISTRATION, respondents.
NATIONAL IRRIGATION
ADMINISTRATION, petitioners, vs. SPOUSES
JOSE FONTANILLA and VIRGINIA FONTANILLA, respondents.
R E S O L U T I O N
PARAS, J p:
In its Motion for Reconsideration 1 of the Court's Second Division decision in
G.R. No. 55963 and G.R. No. 61045, the National Irrigation Administration (NIA,
for brevity), through the Solicitor General, maintains that, on the strength
of Presidential Decree No. 552 (which amended certain provisions of Republic
Act 3601, the law creating the NIA) and the case of Angat River Irrigation
System, et al. vs. Angat River Workers' Union, et al., 102 Phil. 790 "the NIA does
not perform solely and primarily proprietary functions but is an agency of the
government tasked with governmental functions, and is therefore not liable for
the tortious act of its driver Hugo Garcia, who was not its special agent."
Although the majority opinion in the cited case of Angat System declares that the
Angat System (like the NIA) exercised a governmental function because the
nature of the powers and functions of said agency does not show that it was
intended to "bring to the Government any special corporate benefit or pecuniary
profit," there is a strong dissenting opinion penned by then Associate Justice and
later Chief Justice Roberto Concepcion and concurred in by then Associate
Justice J.B.L. Reyes which held the contrary view that the Angat River System is
a government entity exercising proprietary functions. To buttress said stand, the
former Chief Justice cited some authorities which will be useful in the proper
resolution of this case.
Quoting from said dissenting opinion which cited McQuillin's The Law of
Municipal Corporations, 3rd ed., Vol. 18, pp. 423-424:
"In undertaking to supply water at price, municipality is not performing
governmental function but is engaged in trade, and is liable first as
private company would be for any negligence in laying out of its pipes, in
keeping them in repair, or in furnishing potable water through them.
Harvard Furniture Co., Inc. vs. City of Cambridge, 320 Mass. 227, 68
N.E. (2d) 684."
"Municipality in contracting to provide water supply acts under its
proprietary power and not under its legislative, public or governmental
powers. Farmers' State Bank vs. Conrad, 100 Mont. 415, 47 P. (2d)
853."
In this connection, the opinion is that irrigation districts in the United States are
basically identical to our irrigation systems under Act No. 2152. Because of such
similarity, it is found appropriate to consider certain doctrines from American
jurisprudence, which are as follows, to wit:
"An irrigation district is a public quasi corporation, organized, however, to
conduct a business for the private benefit of the owners of land within its
limits. They are members of the corporation, control its affairs, and alone
are benefited by its operations. It is, in the administration of its business,
the owner of its system in a proprietary rather than a public capacity, and
must assume and bear the burdens of proprietary ownership."
(Nampa vs. Nampa & M. Irrig. Dist. 19 Idaho, 779, 115 Pac. 979)
". . . the plaintiff sought damages for injuries to crops on his land during
1923, 1924, 1925, and 1926, caused by water seeping, percolating, and
escaping from the defendant's canal. The defendant contended that
irrigation districts were agencies of the state, and were, therefore, not
liable for the negligent construction or operation of their canals or
ditches. The court, after a careful review of the authorities defining an
irrigation district, conceded that such a quasi public corporation
possessed some governmental powers and exercised some
governmental functions, but held that the construction and operation of
its irrigation canals and ditches was a proprietary rather than a
governmental function, and hence the district was responsible in
damages for the negligent construction or operation of its canal system."
(69 A.L.R., p. 1233)
It may not be amiss to state at this point that the functions of government have
been classified into governmental or constituent and proprietary or ministrant.
The former involves the exercise of sovereignty and considered as compulsory;
the latter connotes merely the exercise of proprietary functions and thus
considered as optional. The Solicitor General argues that the reasons presented
by P.D. 552 for the existence of the NIA (the WHEREAS clauses of said decree)
indubitably reveal that the responsibility vested in said agency concerns public
welfare and public benefit, and is therefore an exercise of sovereignty. On the
contrary, We agree with the former Chief Justice Concepcion in saying that the
same purpose such as public benefit and public welfare may be found in the
operation of certain enterprises (those engaged in the supply of electric power, or
in supplying telegraphic, telephonic, and radio communication, or in the
production and distribution of prime necessities, etc.) yet it is certain that the
functions performed by such enterprises are basically proprietary in nature. Thus,
as held in Holderbaum vs. Hidalgo County Water Improvement District (297 S.W.
865, aff'd in 11 S.W. [2d] 506) cited in the dissenting opinion by Justice
Concepcion:
". . . Primarily, a water improvement district is in no better position than a
city is when exercising its purely local powers and duties. Its general
purposes are not essentially public in their nature, but are only
incidentally so; those purposes may be likened to those of a city which is
operating a waterworks system, or an irrigation system. . . . A water
improvement district can do nothing, it has and furnishes no facilities, for
the administration of the sovereign government. Its officers have no
power or authority to exercise any of the functions of the general
government, or to enforce any of the laws of the state or any of its other
subdivisions, or collect taxes other than those assessed by the district.
They have no more power or authority than that of the officers of a
private corporation organized for like purposes. As a practical matter, the
primary objects and purposes of such district are of a purely local nature,
for the district is created and operated for the sole benefit of its own
members, and an analysis of those objects and purposes discloses that
they directly benefit only the landowners who reside within and whose
lands form a part of the district, to the exclusion of all other residents
therein. It is true, of course, that the state and the general public are
greatly benefited by the proper operation of the district, and to that extent
its objects and accomplishments are public in their nature, but this
characteristic is only incidental to the primary and chief object of the
corporation, which is the irrigation of lands forming a part of the district. It
is obvious, then, that the purposes and duties of such districts do not
come within the definition of public rights, purposes, and duties which
would entitle the district to the exemption raised by the common law as a
protection to corporations having a purely public purpose and performing
essentially public duties."
Of equal importance is the case of National Waterworks and Sewerage Authority
(NAWASA) vs. NWSA Consolidated Unions, 11 SCRA 766, which propounds the
thesis that "the NAWASA is not an agency performing governmental functions;
rather it performs proprietary functions . . . ." The functions of providing water
supply and sewerage service are regarded as mere optional functions of
government even though the service rendered caters to the community as a
whole and the goal is for the general interest of society. The business of
furnishing water supply and sewerage service, as held in the case
of Metropolitan Water District vs. Court of Industrial Relations, et al., 91 Phil. 840,
"may for all practical purposes be likened to an industry engaged in by coal
companies, gas companies, power plants, ice plants, and the like." Withal, it has
been enunciated that "although the State may regulate the service and rates of
water plants owned and operated by municipalities, such property is not
employed for governmental purposes and in the ownership and operation thereof
the municipality acts in its proprietary capacity, free from legislative interference."
(1 McQuillin, p. 683) LLphil
Like the NAWASA, the National Irrigation Administration was not created for
purposes of local government. While it may be true that the NIA was essentially a
service agency of the government aimed at promoting public interest and public
welfare, such fact does not make the NIA essentially and purely a "government-
function" corporation. NIA was created for the purpose of "constructing,
improving, rehabilitating, and administering all national irrigation systems in the
Philippines, including all communal and pump irrigation projects." Certainly, the
state and the community as a whole are largely benefited by the services the
agency renders, but these functions are only incidental to the principal aim of the
agency, which is the irrigation of lands. Cdpr
We must not lose sight of the fact that the NIA is a government agency invested
with a corporate personality separate and distinct from the government, thus is
governed by the Corporation Law. Section 1 of Republic Act No. 3601 provides:
"Section 1.Name and Domicile A body corporate is hereby created
which shall be known as the National Irrigation Administration. . . . which
shall be organized immediately after the approval of this Act. It shall
have its principal seat of business in the City of Manila and shall have
representatives in all provinces, for the proper conduct of its business."
(Emphasis supplied).
Besides, Section 2, subsection b of P.D. 552 provides that:
"(b)To charge and collect from the beneficiaries of the water from all
irrigation systems constructed by or under its administration, such fees
or administration charges as may be necessary to cover the cost of
operation, maintenance and insurance, and to recover the cost of
construction within a reasonable period of time to the extent consistent
with government policy; to recover funds or portions thereof expended
for the construction and/or rehabilitation of communal irrigation systems
which funds shall accrue to a special fund for irrigation development
under section 2 hereof;

Unpaid irrigation fees or administration charges shall be preferred liens
first, upon the land benefited, and then on the crops raised thereon,
which liens shall have preference over all other liens except for taxes on
the land, and such preferred liens shall not be removed until all fees or
administration charges are paid or the property is levied upon and sold
by the National Irrigation Administration for the satisfaction thereof. . . ."
The same section also provides that NIA may sue and be sued in court. Thus,
"b). . . Judicial actions for the collection of unpaid irrigation fees or
charges, drainage fees or other charges which the National Irrigation
Administration is authorized to impose and collect, shall henceforth be
governed by the provisions of the Rules of Court of the Philippines for
similar actions, the provisions of other laws to the contrary
notwithstanding."
xxx xxx xxx
"(e). . .
xxx xxx xxx
xxx xxx xxx
All actions for the recovery of compensation and damages against the
National Irrigation Administration under paragraphs (1), (2), and (3)
hereof, shall be filed with a competent court within five (5) years from the
date of entry of the land or destruction of the improvements or crops,
after which period, the right of possession and/or ownership of the
National Irrigation Administration shall be considered vested and
absolute. All other actions for the recovery of compensation and
damages to private property and improvements occasioned by the
construction, operation and maintenance of irrigation facilities and other
hydraulic structures under the administration of the National Irrigation
Administration, which have accrued ten (10) or more years prior to the
approval of this decree are deemed to have prescribed and are barred
forever."
It has its own assets and liabilities. It also has corporate powers to be
exercised by a Board of Directors. To quote Section 2, subsection (f):
"(f). . . and to transact such business, as are directly or indirectly
necessary, incidental or conducive to the attainment of the above
powers and objectives, including the power to establish and maintain
subsidiaries, and in general, to exercise all the powers of a corporation
under the Corporation Law, insofar as they are not inconsistent with the
provisions of this Act." (Emphasis supplied).
On the basis of the foregoing considerations, We conclude that the National
Irrigation Administration is a government agency with a juridical personality
separate and distinct from the government. It is not a mere agency of the
government but a corporate body performing proprietary functions. Therefore, it
may be held liable for the damages caused by the negligent act of its driver who
was not its special agent.
ACCORDINGLY, the Motion for Reconsideration dated January 26, 1990 is
DENIED WITH FINALITY. The decision of this Court in G.R. No. 55963 and G.R.
No. 61045 dated December 1, 1989 is hereby AFFIRMED.
Gancayco, Bidin, Sarmiento, Grio-Aquino, Medialdea and Regalado, JJ.,
concur.
Fernan, C.J., Melencio-Herrera and Gutierrez, Jr., JJ., concur in the result.
Separate Opinions
FELICIANO, J ., concurring:
I agree with the result reached by my distinguished brother in the Court, Mr.
Justice Edgardo L. Paras, both in the Decision of the Court's Second Division
dated 1 December 1989 (179 SCRA 685 [1989]) and in the present Resolution
on the motion for reconsideration, which has been referred to the Court En
Banc. cdll
I agree, in other words, that the National Irrigation Administration (NIA) is liable
for the acts of its employee Hugo Garcia which resulted in injury to the spouses
Jose Fontanillaand Virginia Fontanilla. However, I reach this result through a
slightly different route which is traced below.
In the original decision of the Court's Second Division, it is stated that:
"Certain functions and activities, which can be performed only by the
Government, are more or less generally agreed to be 'governmental' in
character, and so the State is immune from tort liability. On the other
hand, a service which might as well be provided by a private corporation,
and particularly when it collects revenues from it, the function is
considered a 'proprietary' one, as to which there may be liability for the
torts of agents within the scope of their employment."
The original Decision and the Resolution on the motion for reconsideration
hold that the NIA is "an agency of the government exercising proprietary
functions."
I would respectfully submit that the liability of an agency or instrumentality of the
Government for torts of its employees under Article 2180, 6th paragraph, of the
Civil Code is not contingent upon the technical characterization of the functions
or activities carried out by that agency or instrumentality as "governmental," on
the one hand, or "proprietary," upon the other.
In the first place, it is merely commonplace to note that governments in our day
and age do not restrict themselves to the original basic and primitive functions of
repelling invasion by a foreign enemy, maintaining peace and order in society
and protecting the physical integrity or the food supplies of its citizens or
inhabitants, but instead assumed and carry out all kinds of activities which they
may determine to redound to the general interest and benefit of the population.
Thus, the classical laissez-faire concept of a state, which prevailed during the
19th century, has today been replaced by the concept of the welfare state.
Moreover, activities which in other states more economically advanced than our
own have been undertaken by private enterprise, are here still being carried out
by the Government or, more generally, the public sector in view of the
inadequacy of private capital and private entrepreneurial spirit. LLphil
Secondly, under Section 2(1) of Article IX of the Constitution, whether or not a
government owned or controlled corporation or entity forms part of the
Government and is embraced within the civil service depends, not upon the
"governmental," as distinguished from "proprietary," nature of the activities
performed by such entity or corporation, but rather upon whether or not the
corporation or entity is possessed of an "original charter." Thus, it appears to me
that the framers of the 1987 Constitution had given up the notion of trying to
distinguish between "governmental" and "proprietary" functions for purposes of
determining whether employees of a particular agency or instrumentality should
be governed by the Civil Service Law and Regulations or, alternatively, by the
Labor Code and its Implementing Regulations administered by the National
Labor Relations Commission and the Department of Labor and Employment. prcd
Article 2180 of the Civil Code provides in part as follows:
"xxx xxx xxx
Employers shall be liable for the damage caused by their employees and
household helpers acting within the scope of their assigned tasks, even
though the former are not engaged in any business or entity.
The State is responsible in like manner when it acts through a special
agent; but not when the damage has been caused by the official to
whom the task done properly pertains, in which case what is provided in
Article 2176 shall be applicable.
xxx xxx xxx"
(Emphases supplied)
My basic submission that the term "State" as used above properly refers to
the "Government of the Republic of the Philippines." This latter term is defined
in Section 2 of the Revised Administrative Code of 1987 in the following
manner:
"The Government of the Republic of the Philippines refers to
the corporate governmental entity through which the functions of
government are exercised throughout the Philippines, including save as
the contrary appears from the context, the various arms through
which political authority is made effective in the Philippines, whether
pertaining to the autonomous regions, the provincial, city, municipal or
barangay subdivisions or other forms of local government." (Emphases
supplied)
In other words, the term "State" as used in Article 2180 of the Civil Code
refers to that juridical person that is constituted by the Government of the
Republic of the Philippines and logically does not include agencies,
instrumentalities or other entities which their enabling laws have invested
with juridical personality separate and distinctfrom that of the Republic of the
Philippines.
It should be noted in this connection, that in Merritt v. Government of the
Philippine Islands (34 Phil. 311 [1960]), the Court said:
"It is therefore evident that the State (the Government of the Philippine
Islands) is only liable, according to the above quoted decisions of the
Supreme Court of Spain, for acts of its agents, officers and employees
when they act as special agents within the meaning of paragraph 5 of
Article 1903 [of the Civil Code of Spain of 1889] and that the chauffeur of
the ambulance of the General Hospital was not such an agent."
(Emphasis supplied; parentheses in the original; 34 Phil. at 323)
Clearly, Mr. Justice Trent considered "the State" and "the Government of the
Philippine Islands" as equivalent terms. The decision of the Supreme Court of
Spain dated 7 January 1898 which the Court in Merritt cited, read in part as
follows:
"That the obligation to indemnify for damages, which a third person
causes to another by his fault or negligence is based, as is evidenced by
the same Law 3, Title 15, Partida 7, on that the person obligated, by his
own fault or negligence, takes part in the act or omission of the third
party who caused the damage. It follows therefrom that the State, by
virtue of such provisions of law, is not responsible for the damages
suffered by private individual in consequence of acts performed by its
employees in the discharge of the functions pertaining to their office,
because neither fault nor even negligence can be presumed on the part
of the State in the organization of branches of the public service and in
the appointment of its agents; on the contrary, we must presuppose all
foresight humanly possible on its part in order that each branch of
service serves the general weal and that of private persons interested in
its operation. Between these latter and the State, therefore, no relations
of a private nature governed by the civil law can arise except in a case
where the state acts as a [juridical] person capable of acquiring rights
and contracting obligations." (Emphases supplied)

The term " juridical" person was translated (by Mr. Justice Trent?) as
" judicial" person. This appears plain error for the judgment of 7 January 1898
in fact read:
". . . entre los cuales y el Estado, por tanto, no pueden surgir relaciones
de orden privado regidas por el derecho civil, salvo el caso de que el
mismo Estado obre como persona juridica capaz de adquirir derechos y
contraer obligaciones:
xxx xxx xxx
(Emphasis supplied; 83 Jurisprudencia Civil 36 [1898])
Thus, the decision of the Supreme Court of Spain itself recognized that
between private persons and the State, relations of a private nature governed
by the Civil Code can arise where the State acts as or through the medium
of a separate juridical person that is capable of acquiring rights and entering
into obligations.
In the present case, there is no question that the NIA has juridical personality
separate and distinct from that of the Government of the Republic of the
Philippines which owns all NIA's capital and assets. In other words, the NIA is not
part of the "State" or of the "Government of the Republic of the Philippines"; it
follows, I respectfully submit, that the NIA should not be regarded as part of the
State for purposes of application of Article 2180 of the Civil Code.
What I have outlined above is in fact very close to the position taken by Mr.
Justice Paras in the Resolution on the motion for reconsideration. For he has
rightly stressed that the NIA has clearly been invested with a distinct legal
personality and thus with capacity to sue and be sued. Judicial actions may be
brought by the NIA for the collection of unpaid irrigation fees, drainage fees or
other charges which the NIA is authorized to impose and collect, under the
provisions of the Rules of Court. Correlatively, actions against the NIA for the
recovery of compensation and damages are expressly allowed and prescribed in
either five (5) or ten (10) years depending upon the subject matter thereof. The
State itself has determined, in other words, that the NIA shall not be covered by
the general immunity from suit without its consent pertaining to the State.
Finally, the Resolution underscores the fact that under Section 2(f) of the NIA
charter, the NIA is generally authorized "to exercise all the powers of a
corporation under the Corporation Law, insofar as they are not inconsistent with
the provisions of [the NIA charter]." Since the NIA has been vested with all the
powers of a corporate person, it seems only reasonable to believe that it is at the
same time subjected to all the ordinary liabilities of a corporate person: one of
those liabilities is the vicarious liability of an employer under Article 2180 of the
Civil Code, 6th paragraph, for injurious acts done by its employees within the
scope of their assigned tasks. prLL
I suggest then that the investing of an agency or instrumentality of the
Government with separate juridical personality is not a matter of "form" as
suggested by my equally distinguished brother in the Court, Mr. Justice Padilla,
in his dissenting opinion. The effect of the foregoing provisions of its charter may
be seen to be clearly a matter of "substance": to render the NIA both suable and
liable on the same causes of action which may be asserted against any
corporate entity that is a separate juridical person.
It seems also relevant to point out that the Philippine General Hospital (PGH), the
agency or instrumentality involved in the Merritt case, did not (in contrast with the
NIA) have legal personality separate and distinct from that of the Philippine
Government at the time that Merritt was decided. The PGH was established
under Act No. 1688 of the Philippine Commission as a division of the Bureau of
Health, a non-incorporated entity. Later, it was removed from the administrative
jurisdiction of the Bureau of Health and made into an independent bureau under
the supervision of the Department of the Interior. Still later, the PGH was placed
under the Department of Instruction and subsequently, under the Office of the
President. In 1947, by virtue of Executive Order No. 94, the PGH was made a
part of the University of the Philippines, itself a separate corporate entity. Clearly,
therefore, at the time Merritt was decided, the PGH was part and parcel of the
Government of the Republic of the Philippines as defined by the Revised
Administrative Code of 1917.
For all the foregoing, I vote to DENY the motion for reconsideration and to
AFFIRM the Decision dated 1 December 1989 in G.R. Nos 55963 and 61045.
Fernan, C.J., Melencio-Herrera, Narvasa and Cruz, JJ., concur.
PADILLA, J ., concurring and dissenting:
On 1 December 1989, this Court, through its Second Division, rendered a
decision declaring petitioner National Irrigation Administration (NIA, for brevity) a
government agency performing proprietary functions. Like an ordinary employer,
NIA was held liable for the injuries, resulting in death, of Francisco Fontanilla,
caused by the fault and/or negligence of NIA's driver-employee Hugo Garcia; and
NIA was ordered to pay petitioner-spouses Fontanilla, the victim's parents, the
amounts of P12,000.00 for the death of the victim; P3,389.00 for hospitalization
and burial expenses; P30,000.00 as moral damages; P8,000.00 as exemplary
damages, and attorney's fees of 20% of the total award.LexLib
Assailing the said decision of this Court, NIA filed the present Motion for
Reconsideration, alleging that NIA does not perform solely or primarily
proprietary functions but is an agency of the government tasked with
governmental functions; thus, it may not be held liable for damages for injuries
caused by its employee to a third person. Citing PD 552, NIA argues that its
functions and responsibilities directly concern public benefit and public welfare.
To start with, NIA is an agency of the government with an original charter. 1
Section 1 of Republic Act 3601 provides:
"SECTION 1.Name and domicile. A body corporate is hereby created
which shall be known as the National Irrigation Administration,
hereinafter called the NIA for short, which shall be organized
immediately after the approval of this Act. It shall have its principal seat
of business in the City of Manila and shall have representatives in all
provinces for the proper conduct of its business."
NIA's said charter confers upon it a separate juridical personality to exercise
all the powers of a corporation under the Corporation Law, insofar as they are
not inconsistent with said charter. 2
Under PD 552 amending NIA's original charter, it is made clear that said agency
was created primarily for the purpose of undertaking integrated irrigation projects,
by the construction of multiple-purpose water resource projects to increase
agricultural production for the financial upliftment of the people. In relation to its
purpose, NIA has the power and authority to undertake concomitant projects,
such as, flood control, drainage, land reclamation, hydraulic power development,
domestic water supply, road or highway construction, reforestation and projects
to maintain ecological balance, in coordination with other agencies concerned.
Thus
"WHEREAS, the enunciation policy is for a comprehensive development,
utilization and conservation of water resources of the Philippines, and in
pursuit of this policy, one of the primary objectives of the National
Irrigation Administration is to effectuate an economic means of achieving
the optimal and diversified utilization and control of water by undertaking
integrated irrigation projects.
"WHEREAS, the National Irrigation Administration assumes as its
primary responsibility, the implementation of the irrigation integrated
program of the government and the attainment of the 'Irrigation Age', as
envisioned under Republic Act No. 3601;
"WHEREAS, an effective means of implementing multiple-purpose
projects in line with program-oriented and comprehensive water
resources development necessitates broader powers and authority of
the NIA to undertake concomitant projects such as flood control,
drainage, land reclamation, hydraulic power development, domestic
water supply, road or highway construction, reforestation, and projects to
maintain ecological balance, in coordination with the agencies
concerned;
"WHEREAS, the construction of multiple-purpose water resources
projects involves substantial investment of government funds to increase
agricultural production for the financial upliftment of the People for them
to be able to assume and comply with their obligations and
responsibilities to the government."
NIA is thus maintained and operated by the government in the performance of its
governmental function of providing the Filipino people, particularly, the
farmers nationwide,improved irrigation systems to increase the country's
agricultural production. Only the government has the capacity and facilities to
successfully undertake a project or venture of such magnitude. That the NIA is
empowered to charge minimal fees from all the beneficiaries of the irrigation
systems that it establishes and operates, does not change the nature of the
function or purpose for which it was created. The fees that are collected by NIA
are used to cover the cost of operation, maintenance, insurance, cost of
construction, and the rehabilitation of irrigation systems. 3 Such monetary
charges do not constitute monetary gain or profit to NIA, but are merely
reimbursements of the operational cost of the agency's projects. LLpr
It cannot be denied that public service is the thrust in the creation of NIA in
contrast to a business venture or proprietary enterprise for monetary gain. That
the NIA is also empowered to enter into transactions in order to acquire real and
personal properties, appurtenant rights, easements, privileges in the
development of its projects 4 and enter into other business transactions, does not
mean that it performs proprietary functions, for it is expressly provided in its
charter that the business transactions it may enter into are only those which are
directly or indirectly necessary, incidental or conducive to the attainment of its
purposes and objectives. 5

Furthermore, the fact that its charter treats the NIA as incorporated under the
Corporation Law, and confers upon it a separate juridical personality, is not the
test in determining whether it is performing a governmental or proprietary
function. The spirit, intent or purpose behind its creation determines its true
character. It has been held that were the nature of the duties imposed on an
agency and performed by it does not reveal that it was intended to bring any
special corporate benefit or pecuniary profit to the government, said agency is
deemed to be exercising a governmental function. 6
After having established that the NIA is a government agency, with an original
charter, possessed of juridical personality under the Corporation Law, and
performing governmental functions, it is equally important to determine whether
(1) the sovereign immunity of the state from suit is enjoyed, or has been waived
by NIA and (2) the NIA is liable for damages arising from tort committed by its
employees. prLL
For incorporated agencies of the government, the test of its suability is found in
its charter. The simple rule is that it is suable if its charter says so, and this is true
regardless of the functions it is performing. 7 The charter of the NIA provides that
it may sue and be sued, thus, consent of the state for NIA to be sued has been
given,
8
so that the rule on immunity from suit normally extended to government
agencies performing governmental functions is no longer available to NIA. By
waiving that immunity from suit in its charter, it would appear that NIA has
opened itself to suits based on causes of action arising from law, contracts,
quasi-contracts, delicts, and even quasi-delicts.
But to say that NIA has opened itself to suit is one thing; to say that it is liable for
damages arising from tort committed by its employees, is still another thing.
As discussed in the now assailed decision, pursuant to the provisions of
substantive law on quasi-delict, whoever by his act or omission causes damage
to another, there being fault or negligence, is obliged to pay for the damage
caused. 9 The obligation imposed by the foregoing rule is demandable not only
for one's own acts or omissions, but also for those of persons for whom one is
responsible, such that an employer is held liable for damages caused by its
employees who were acting within the scope of their assigned tasks. 10
But the state or a government agency performing governmental functions may be
held liable for tort committed by its employees only when it acts through a special
agent. 11
This is not the first time this Court is confronted with a situation akin to the one at
bar. In Merritt vs. Government of the Phil. Islands, 12 the plaintiff was hit by an
ambulance of the Philippine General Hospital, while operated by its regular
driver. Since the Philippine government was immune from suit, Act No. 2457 was
approved by the Philippine legislature which authorized Merritt to sue the
Philippine government in the CFI in order to fix the responsibility for the collision
and to determine the amount or extent of the damages.
In due course, it was determined that the ambulance operated by the General
Hospital's regular driver was responsible for the mishap. The damages sustained
by Merritt as a result of the accident was likewise quantified by the trial court and
ultimately increased by the Supreme Court.
But then the crucial question remained thus
"Did the defendant, in enacting the above quoted Act, simply waive its
immunity from suit or did it also concede its liability to the plaintiff? If only
the former, then it cannot be held that no Act created any new cause of
action in favor of the plaintiff or extended the defendant's liability to any
case not previously recognized."
The Court answered its own query thus
"In the United States the rule that the state is not liable for the torts
committed by its officers or agents whom it employs, except when
expressly made so by legislative enactment, is well settled. 'The
Government,' says Justice Story, 'does not undertake to guarantee to
any person the fidelity of the officers or agents whom it employs, since
that would involve it in all its operations in endless embarrassments,
difficulties and losses, which would be subversive of the public interest.'"
(Claussen vs. City of Luverne, 103 Minn., 491 citing U.S. vs. Kirkpatrick,
9 Wheat, 720; 6 L.Ed., 199; and Beers vs. State, 20 How., 527; 15 L.Ed.,
991.)
xxx xxx xxx
". . . we will now examine the substantive law touching the defendant's
liability for the negligent acts of its officers, agents, and employees.
Paragraph 5 of article 1903 of the Civil Code reads:
"The state is liable in this sense when it acts through a special agent, but
not when the damage should have been caused by the official to whom
properly it pertained to do the act performed, in which case the
provisions of the preceding article shall be applicable.
"The Supreme Court of Spain in defining the scope of this paragraph
said:
"That the obligation to indemnify for damages which a third person
causes to another by his fault or negligence is based, as is evidenced by
the same Law 3, Title 15, Partida 7, on that the person obligated, by his
own fault or negligence, takes part in the act or omission of the third
party who caused the damage. It follows therefrom that the state, by
virtue of such provisions of law, is not responsible for the damages
suffered by private individuals in consequence of acts performed by its
employees in the discharge of the functions pertaining to their office,
because neither fault nor even negligence can be presumed on the part
of the state organization of branches of the public service and in the
appointment of its agents; on the contrary, we must presuppose all
foresight humanly possible on its part in order that each branch of
service serves the general weal and that of private persons interested in
its operation. Between these latter and the state, therefore, no relations
of a private nature governed by the civil law can arise except in a case
where the state acts as a judicial person capable of acquiring rights and
contracting obligations." (Supreme Court of Spain, January 7, 1988; 83
Jur. Civ., 24.)
The dispositive part of the Merritt decision states:
"For the foregoing reasons, the judgment appealed from must be
reversed, without costs in this instance. Whether the Government
intends to make itself legally liable for the amount of damages above set
forth, which the plaintiff has sustained by reason of the negligent acts of
one of its employees, by legislative enactment and by appropriating
sufficient funds therefor, we are not called upon to determine. This
matter rests solely with the Legislature and not with the courts."
This Court in the now assailed decision found that NIA was negligent in the
supervision of its driver Hugo Garcia who bumped petitioner-spouses' son,
causing the death of the latter
"It should be emphasized that the accident happened along the Marikina
National Road within the city limits of San Jose City, an urban area.
Considering the fact that the victim was thrown 50 meters away from the
point of impact, there is a strong indication that driver Garcia was driving
at a high speed. This is confirmed by the fact that the pick-up suffered
substantial and heavy damage as above-described and the fact that the
NIA group was then 'in a hurry to reach the campsite as early as
possible', as shown by their not stopping to find out what they bumped
as would have been their normal and initial reaction.
"Evidently, there was negligence in the supervision of the driver for the
reason that they were travelling at a high speed within the city limits and
yet the supervisor of the group, Ely Salonga, failed to caution and make
the driver observe the proper and allowed speed limit within the City.
Under the situation, such negligence is further aggravated by their desire
to reach their destination without even checking whether or not the
vehicle suffered damage from the object it bumped, thus showing
imprudence and recklessness on the part of both the driver and the
supervisor in the group." 13
There is thus no doubt that NIA should be held responsible for the negligent
acts of its regular driver, resulting in the death of petitioner-spouses' son,
except that under Article 2180, par. 6 in relation to Article 2176 of the Civil
Code, the state is not liable for tort save when it acts through a special agent,
and Hugo Garcia was not a special agent but NIA's regular driver.
Under the circumstances, and in order not to perpetuate a cruel injustice, I
believe that this Court, while granting the Solicitor General's motion for
reconsideration, should recommend to Congress the enactment of the
appropriate legislation to compensate the petitioner-spouses, parents of the
victim Francisco Fontanilla, and to appropriate the necessary funds therefor,
which could be equal to the amount of damages already determined by this
Court.
During the deliberations of this case, it was suggested that the term "State" as
used in Article 2180, par. 6 of the Civil Code 14 could be limited to the State
proper and not construed to include incorporated entities even if performing
governmental functions, such as the NIA. The intended effect of this suggestion
would be to render only the State, meaning, the government of the Republic of
the Philippines and its unincorporated agencies, such as government bureaus,
exempt from liability for tort committed by their officials and employees, except
their special agents, but incorporated governmental entities, even if performing
governmental (as distinguished from business functions) will be liable for the tort
committed by their officials and employees.
I am of the considered opinion that the aforestated suggestion is untenable
because it would lay stress on form rather than substance. To me, the test
should still be whether the governmental entity performs governmental and,
therefore, sovereign functions, regardless of whether it is incorporated or not. If
the government agency performs governmental and, therefore, sovereign
functions, such as the NIA, it is within the context of the term "State" as used in
Art. 2180, par. 6 of the Civil Code and may not, as a consequence, be held liable
for tort committed by its officials and employees, except when they are "special
agents."

From the ruling of this Court in Manila Hotel Employees Asso. vs. Manila Hotel,
15 which states that by "engaging in a particular business thru the instrumentality
of a corporation, the government divests itself pro hoc vice of its sovereign
character, so as to render the corporation subject to the rules governing private
corporations," it can be reasonably inferred that it is the business character of the
corporation and not its corporate form which divests it of the immunity (and,
similarly, exemption from liability for tort committed by its employees) which its
owner-sovereign enjoys. In the case of Prisco vs. CIR, 17
In an advisory opinion of the Supreme Court of the State of Michigan with respect
to the creation of the state housing authority, it was held that a state agency
intended to take measures to promote construction of housing, performs a proper
governmental function, and that the grant of corporate powers to such an agency
makes it a quasi-corporation only but it remains an instrumentality of the state.
Such quasi-corporations are described as bodies of citizens who have no
personal nor private interests to be subserved, but are simply required by the
state to do some public work. The state merely clothes one of its agencies or
instrumentalities with such corporate powers. It is neither a private corporation
but a class of artificial entity. 18 The NIA qualifies as a quasi-corporation,
retaining at all times the attributes and prerogatives of the sovereign State which
entirely owns and operates it.
FOR THE FOREGOING REASONS, I vote to GRANT the Motion for
Reconsideration and to SET ASIDE the decision of this Court dated 1 December
1989, subject to the recommendation to Congress as earlier stated.
||| (Spouses Fontanilla v. Maliaman, G.R. Nos. 55963 & 61045, February 27,
1991)

EN BANC
[G.R. No. 183591. October 14, 2008.]
THE PROVINCE OF NORTH COTABATO, duly represented by
GOVERNOR JESUS SACDALAN and/or VICE-GOVERNOR
EMMANUEL PIOL, for and in his own behalf, petitioners, vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES
PEACE PANEL ON ANCESTRAL DOMAIN (GRP), represented
by SEC. RODOLFO GARCIA, ATTY. LEAH ARMAMENTO,
ATTY. SEDFREY CANDELARIA, MARK RYAN SULLIVAN
and/or GEN. HERMOGENES ESPERON, JR., the latter in his
capacity as the present and duly-appointed Presidential
Adviser on the Peace Process (OPAPP) or the so-called
Office of the Presidential Adviser on the Peace
Process, respondents.
[G.R. No. 183752. October 14, 2008.]
CITY GOVERNMENT OF ZAMBOANGA, as represented by
HON. CELSO L. LOBREGAT, City Mayor of Zamboanga, and in
his personal capacity as resident of the City of Zamboanga,
Rep. MA. ISABELLE G. CLIMACO, District 1, and Rep. ERICO
BASILIO A. FABIAN, District 2,
City of Zamboanga,petitioners, vs. THE GOVERNMENT OF THE
REPUBLIC OF THE PHILIPPINES PEACE NEGOTIATING
PANEL (GRP), as represented by RODOLFO C. GARCIA, LEAH
ARMAMENTO, SEDFREY CANDELARIA, MARK RYAN
SULLIVAN and HERMOGENES ESPERON, in his capacity as
the Presidential Adviser on Peace Process, respondents.
[G.R. No. 183893. October 14, 2008.]
THE CITY OF ILIGAN, duly represented by CITY MAYOR
LAWRENCE LLUCH CRUZ, petitioner, vs. THE
GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES
PEACE PANEL ON ANCESTRAL DOMAIN (GRP), represented
by SEC. RODOLFO GARCIA, ATTY. LEAH ARMAMENTO,
ATTY. SEDFREY CANDELARIA, MARK RYAN SULLIVAN, GEN.
HERMOGENES ESPERON, JR., in his capacity as the present
and duly appointed Presidential Adviser on the Peace
Process; and/or SEC. EDUARDO ERMITA, in his capacity as
Executive Secretary, respondents.
[G.R. No. 183951. October 14, 2008.]
THE PROVINCIAL GOVERNMENT OF ZAMBOANGA DEL
NORTE, as represented by HON. ROLANDO E. YEBES, in his
capacity as Provincial Governor, HON. FRANCIS H. OLVIS, in
his capacity as Vice-Governor and Presiding Officer of the
Sangguniang Panlalawigan, HON. CECILIA JALOSJOS
CARREON, Congresswoman, 1st Congressional District, HON.
CESAR G. JALOSJOS, Congressman, 3rd Congressional
District, and Members of the Sangguniang
Panlalawigan of the Province of Zamboanga del Norte,
namely, HON. SETH FREDERICK P. JALOSJOS, HON.
FERNANDO R. CABIGON, JR., HON. ULDARICO M.
MEJORADA II, HON. EDIONAR M. ZAMORAS, HON. EDGAR J.
BAGUIO, HON. CEDRIC L. ADRIATICO, HON. FELIXBERTO C.
BOLANDO, HON. JOSEPH BRENDO C. AJERO, HON.
NORBIDEIRI B. EDDING, HON. ANECITO S. DARUNDAY, HON.
ANGELICA J. CARREON and HON. LUZVIMINDA E.
TORRINO, petitioners, vs. THE GOVERNMENT OF THE
REPUBLIC OF THE PHILIPPINES PEACE NEGOTIATING
PANEL [GRP], as represented by HON. RODOLFO C. GARCIA
and HON. HERMOGENES ESPERON, in his capacity as the
Presidential Adviser of Peace Process, respondents.
[G.R. No. 183962. October 14, 2008.]
ERNESTO M. MACEDA, JEJOMAR C. BINAY, and AQUILINO L.
PIMENTEL III, petitioners, vs. THE GOVERNMENT OF THE
REPUBLIC OF THE PHILIPPINES PEACE NEGOTIATING
PANEL, represented by its Chairman RODOLFO C. GARCIA,
and the MORO ISLAMIC LIBERATION FRONT PEACE
NEGOTIATING PANEL, represented by its Chairman
MOHAGHER IQBAL, respondents.
FRANKLIN M. DRILON and ADEL ABBAS TAMANO, petitioners-
in-intervention.
SEN. MANUEL A. ROXAS, petitioner-in-intervention.
MUNICIPALITY OF LINAMON duly represented by its
Municipal Mayor NOEL N. DEANO, petitioner-in-intervention.
THE CITY OF ISABELA, BASILAN PROVINCE, represented by
MAYOR CHERRYLYN P. SANTOS-AKBAR, petitioner-in-
intervention.
THE PROVINCE OF SULTAN KUDARAT, rep. by HON.
SUHARTO T. MANGUDADATU, in his capacity as Provincial
Governor and a resident of theProvince of Sultan
Kudarat, petitioner-in-intervention.
RUY ELIAS LOPEZ, for and in his own behalf and on
behalf of Indigenous Peoples in Mindanao Not Belonging to
the MILF, petitioner-in-intervention.
CARLO B. GOMEZ, GERARDO S. DILIG, NESARIO G. AWAT,
JOSELITO C. ALISUAG and RICHALEX G. JAGMIS, as citizens
and residents of Palawan,petitioners-in-intervention.
MARINO RIDAO and KISIN BUXANI, petitioners-in-intervention.
MUSLIM LEGAL ASSISTANCE FOUNDATION, INC.
(MUSLAF), respondent-in-intervention.
MUSLIM MULTI-SECTORAL MOVEMENT FOR PEACE &
DEVELOPMENT (MMMPD), respondent-in-intervention.
D E C I S I O N
CARPIO-MORALES, J p:
Subject of these consolidated cases is the extent of the powers of the President
in pursuing the peace process. While the facts surrounding this controversy
center on the armed conflict in Mindanao between the government and the Moro
Islamic Liberation Front (MILF), the legal issue involved has a bearing on all
areas in the country where there has been a long-standing armed conflict. Yet
again, the Court is tasked to perform a delicate balancing act. It must
uncompromisingly delineate the bounds within which the President may lawfully
exercise her discretion, but it must do so in strict adherence to the Constitution,
lest its ruling unduly restricts the freedom of action vested by that same
Constitution in the Chief Executive precisely to enable her to pursue the peace
process effectively.
I.FACTUAL ANTECEDENTS OF THE PETITIONS
On August 5, 2008, the Government of the Republic of the Philippines (GRP) and
the MILF, through the Chairpersons of their respective peace negotiating panels,
were scheduled to sign a Memorandum of Agreement on the Ancestral Domain
(MOA-AD) Aspect of the GRP-MILF Tripoli Agreement on Peace of 2001 in
Kuala Lumpur, Malaysia.
The MILF is a rebel group which was established in March 1984 when, under the
leadership of the late Salamat Hashim, it splintered from the Moro National
Liberation Front (MNLF) then headed by Nur Misuari, on the ground, among
others, of what Salamat perceived to be the manipulation of the MNLF away from
an Islamic basis towards Marxist-Maoist orientations. 1
The signing of the MOA-AD between the GRP and the MILF was not to
materialize, however, for upon motion of petitioners, specifically those who filed
their cases before the scheduled signing of the MOA-AD, this Court issued a
Temporary Restraining Order enjoining the GRP from signing the same. IECcaA
The MOA-AD was preceded by a long process of negotiation and the
concluding of several prior agreements between the two parties beginning in
1996, when the GRP-MILF peace negotiations began. On July 18, 1997,
the GRP and MILF Peace Panels signed the Agreement on General
Cessation of Hostilities. The following year, they signed the General
Framework of Agreement of Intent on August 27, 1998.
The Solicitor General, who represents respondents, summarizes the MOA-AD by
stating that the same contained, among others, the commitment of the parties to
pursue peace negotiations, protect and respect human rights, negotiate with
sincerity in the resolution and pacific settlement of the conflict, and refrain from
the use of threat or force to attain undue advantage while the peace negotiations
on the substantive agenda are on-going. 2
Early on, however, it was evident that there was not going to be any smooth
sailing in the GRP-MILF peace process. Towards the end of 1999 up to early
2000, the MILF attacked a number of municipalities in Central Mindanao and, in
March 2000, it took control of the town hall of Kauswagan, Lanao del Norte. 3 In
response, then President Joseph Estrada declared and carried out an "all-out-war"
against the MILF. cHDaEI
When President Gloria Macapagal-Arroyo assumed office, the military offensive
against the MILF was suspended and the government sought a resumption of the
peace talks. The MILF, according to a leading MILF member, initially responded
with deep reservation, but when President Arroyo asked the
Government of Malaysia through Prime Minister Mahathir Mohammad to help
convince the MILF to return to the negotiating table, the MILF convened its
Central Committee to seriously discuss the matter and, eventually, decided to
meet with the GRP. 4
The parties met in Kuala Lumpur on March 24, 2001, with the talks being
facilitated by the Malaysian government, the parties signing on the same date the
Agreement on the General Framework for the Resumption of Peace Talks
Between the GRP and the MILF. The MILF thereafter suspended all its military
actions. 5
Formal peace talks between the parties were held in Tripoli, Libya from June 20-
22, 2001, the outcome of which was the GRP-MILF Tripoli Agreement on Peace
(Tripoli Agreement 2001) containing the basic principles and agenda on the
following aspects of the negotiation: Security Aspect, Rehabilitation Aspect,
and Ancestral DomainAspect. With regard to the Ancestral Domain Aspect, the
parties in Tripoli Agreement 2001 simply agreed "that the same be discussed
further by the Parties in their next meeting".
A second round of peace talks was held in Cyberjaya, Malaysia on August 5-7,
2001 which ended with the signing of the Implementing Guidelines on the
Security Aspect of the Tripoli Agreement 2001 leading to a ceasefire status
between the parties. This was followed by the Implementing Guidelines on the
Humanitarian Rehabilitation and Development Aspects of the Tripoli Agreement
2001, which was signed on May 7, 2002 at Putrajaya, Malaysia. Nonetheless,
there were many incidence of violence between government forces and the MILF
from 2002 to 2003.
Meanwhile, then MILF Chairman Salamat Hashim passed away on July 13, 2003
and he was replaced by Al Haj Murad, who was then the chief peace
negotiator of the MILF. Murad's position as chief peace negotiator was taken
over by Mohagher Iqbal. 6 ISCHET
In 2005, several exploratory talks were held between the parties in Kuala
Lumpur, eventually leading to the crafting of the draft MOA-AD in its final form,
which, as mentioned, was set to be signed last August 5, 2008.
II.STATEMENT OF THE PROCEEDINGS
Before the Court is what is perhaps the most contentious "consensus" ever
embodied in an instrument the MOA-AD which is assailed principally by the
present petitions bearing docket numbers 183591, 183752, 183893, 183951 and
183962.

Commonly impleaded as respondents are the GRP Peace Panel on Ancestral
Domain. 7 and the Presidential Adviser on the Peace Process (PAPP) Hermogenes
Esperon, Jr.
On July 23, 2008, the Province of North Cotabato 8 and Vice-Governor Emmanuel
Piol filed a petition, docketed as G.R. No. 183591, for Mandamus and Prohibition with
Prayer for the Issuance of Writ of Preliminary Injunction and Temporary Restraining
Order. 9 Invoking the right to information on matters of public concern, petitioners seek
to compel respondents to disclose and furnish them the complete and official
copies of the MOA-AD including its attachments, and to prohibit the slated signing of the
MOA-AD, pending the disclosure of the contents of the MOA-AD and the holding of a
public consultation thereon. Supplementarily, petitioners pray that the MOA-AD be
declared unconstitutional. 10
This initial petition was followed by another one, docketed as G.R. No. 183752,
also for Mandamus and Prohibition. 11 filed by the City of Zamboanga, 12 Mayor
Celso Lobregat, Rep. Ma. Isabelle Climaco and Rep. Erico Basilio Fabian who likewise
pray for similar injunctive reliefs. Petitioners herein moreover pray that the
City of Zamboanga be excluded from the Bangsamoro Homeland and/or Bangsamoro
Juridical Entity and, in the alternative, that the MOA-AD be declared null and void.
By Resolution of August 4, 2008, the Court issued a Temporary Restraining
Order commanding and directing public respondents and their agents to cease
and desist from formally signing the MOA-AD. 13 The Court also required the
Solicitor General to submit to the Court and petitioners the official copy of the final
draft of the MOA-AD, 14 to which she complied. 15
Meanwhile, the City of Iligan 16 filed a petition for Injunction and/or Declaratory Relief,
docketed as G.R. No. 183893, praying that respondents be enjoined from signing the
MOA-AD or, if the same had already been signed, from implementing the same, and
that the MOA-AD be declared unconstitutional. Petitioners herein additionally implead
Executive Secretary Eduardo Ermita as respondent. HSDCTA
The Province of Zamboanga del Norte, 17 Governor Rolando Yebes, Vice-Governor
Francis Olvis, Rep. Cecilia Jalosjos-Carreon, Rep. Cesar Jalosjos, and the
members 18 of theSangguniang Panlalawigan of Zamboanga del Norte filed on August
15, 2008 a petition for Certiorari, Mandamus and Prohibition, 19 docketed as G.R. No.
183951. They pray, inter alia, that the MOA-AD be declared null and void and without
operative effect, and that respondents be enjoined from executing the MOA-AD.
On August 19, 2008, Ernesto Maceda, Jejomar Binay, and Aquilino Pimentel III
filed a petition for Prohibition, 20 docketed as G.R. No. 183962, praying for a
judgment prohibiting and permanently enjoining respondents from formally signing and
executing the MOA-AD and or any other agreement derived therefrom or similar thereto,
and nullifying the MOA-AD for being unconstitutional and illegal. Petitioners
herein additionally implead as respondent the MILF Peace Negotiating Panel
represented by its Chairman Mohagher Iqbal.
Various parties moved to intervene and were granted leave of court to file their
petitions-/comments-in-intervention. Petitioners-in-intervention include Senator
Manuel A. Roxas, former Senate President Franklin Drilon and Atty. Adel
Tamano, the City of Isabela 21 and Mayor Cherrylyn Santos-Akbar,
the Province of Sultan Kudarat 22 and Gov. Suharto Mangudadatu, the
Municipality of Linamon in Lanao del Norte, 23 Ruy Elias Lopez of Davao City and of the
Bagobo tribe, Sangguniang Panlungsod member Marino Ridao and businessman Kisin
Buxani, both of Cotabato City; and lawyers Carlo Gomez, Gerardo Dilig, Nesario Awat,
Joselito Alisuag, Richalex Jagmis, all of Palawan City. The Muslim Legal Assistance
Foundation, Inc. (Muslaf) and the Muslim Multi-Sectoral Movement for Peace and
Development (MMMPD) filed their respective Comments-in-Intervention. aIHSEc
By subsequent Resolutions, the Court ordered the consolidation of the petitions.
Respondents filed Comments on the petitions, while some of petitioners
submitted their respective Replies.
Respondents, by Manifestation and Motion of August 19, 2008, stated that the
Executive Department shall thoroughly review the MOA-AD and pursue further
negotiations to address the issues hurled against it, and thus moved to dismiss
the cases. In the succeeding exchange of pleadings, respondents' motion was
met with vigorous opposition from petitioners.
The cases were heard on oral argument on August 15, 22 and 29, 2008 that
tackled the following principal issues:
1.Whether the petitions have become moot and academic
(i)insofar as the mandamus aspect is concerned, in view of the
disclosure of official copies of the final draft of the
Memorandum of Agreement (MOA); and
(ii)insofar as the prohibition aspect involving the Local
Government Units is concerned, if it is considered that
consultation has become fait accompli with the
finalization of the draft;
2.Whether the constitutionality and the legality of the MOA is ripe for
adjudication;
3.Whether respondent Government of the Republic of the Philippines
Peace Panel committed grave abuse of discretion amounting to
lack or excess ofjurisdiction when it negotiated and initiated the
MOA vis- -vis ISSUES Nos. 4 and 5;
4.Whether there is a violation of the people's right to information on
matters of public concern (1987 Constitution, Article III, Sec. 7)
under a state policy of full disclosure of all its transactions
involving public interest (1987 Constitution, Article II, Sec. 28)
including public consultation under Republic Act No.
7160 (LOCAL GOVERNMENT CODE OF 1991)[;]
If it is in the affirmative, whether prohibition under Rule 65 of the 1997
Rules of Civil Procedure is an appropriate remedy;
5.Whether by signing the MOA, the Government of the Republic of the
Philippines would be BINDING itself ACcISa
a)to create and recognize the Bangsamoro Juridical Entity (BJE)
as a separate state, or a juridical, territorial or political
subdivision not recognized by law;
b)to revise or amend the Constitution and existing laws to
conform to the MOA;
c)to concede to or recognize the claim of the Moro Islamic
Liberation Front for ancestral domain in
violation of Republic Act No. 8371 (THE INDIGENOUS
PEOPLES RIGHTS ACT OF 1997), particularly Section
3(g) & Chapter VII (DELINEATION,
RECOGNITION OF ANCESTRAL DOMAINS)[;]
If in the affirmative, whether the Executive Branch has the authority to so
bind the Government of the Republic of the Philippines;
6.Whether the inclusion/exclusion of the Province of North Cotabato,
Cities of Zamboanga, Iligan and Isabela, and the
Municipality of Linamon, Lanao del Norte in/from the areas
covered by the projected Bangsamoro Homeland is a justiciable
question; and
7.Whether desistance from signing the MOA derogates any prior valid
commitments of the Government of the Republic of the
Philippines. 24
The Court, thereafter, ordered the parties to submit their respective Memoranda.
Most of the parties submitted their memoranda on time.
III.OVERVIEW OF THE MOA-AD
As a necessary backdrop to the consideration of the objections raised in the
subject five petitions and six petitions-in-intervention against the MOA-AD, as
well as the two comments-in-intervention in favor of the MOA-AD, the Court
takes an overview of the MOA.
The MOA-AD identifies the Parties to it as the GRP and the MILF.
Under the heading "Terms of Reference" (TOR), the MOA-AD includes not only
four earlier agreements between the GRP and MILF, but also two agreements
between the GRPand the MNLF: the 1976 Tripoli Agreement, and the Final
Peace Agreement on the Implementation of the 1976 Tripoli Agreement, signed
on September 2, 1996 during the administration of President Fidel Ramos. TICAcD
The MOA-AD also identifies as TOR two local statutes the organic act for the
Autonomous Region in Muslim Mindanao (ARMM) 25 and the Indigenous Peoples
Rights Act (IPRA),26 and several international law instruments the ILO Convention No.
169 Concerning Indigenous and Tribal Peoples in Independent Countries in relation to
the UN Declaration on the Rights of the Indigenous Peoples, and the UN Charter,
among others.
The MOA-AD includes as a final TOR the generic category of "compact rights
entrenchment emanating from the regime of dar-ul-mua'hada (or territory under
compact) anddar-ul-sulh (or territory under peace agreement) that partakes the
nature of a treaty device".
During the height of the Muslim Empire, early Muslim jurists tended to see the
world through a simple dichotomy: there was the dar-ul-Islam (the
Abode of Islam) and dar-ul-harb (the Abode of War). The first referred to those
lands where Islamic laws held sway, while the second denoted those lands
where Muslims were persecuted or where Muslim laws were outlawed or
ineffective. 27 This way of viewing the world, however, became more complex through
the centuries as the Islamic world became part of the international
community of nations.
As Muslim States entered into treaties with their neighbors, even with distant
States and inter-governmental organizations, the classical division of the world
into dar-ul-Islamand dar-ul-harb eventually lost its meaning. New terms were
drawn up to describe novel ways of perceiving non-Muslim territories. For
instance, areas like dar-ul-mua'hada(land of compact) and dar-ul-
sulh (land of treaty) referred to countries which, though under a secular regime,
maintained peaceful and cooperative relations with Muslim States, having been
bound to each other by treaty or agreement. Dar-ul-aman (land of order), on the
other hand, referred to countries which, though not bound by treaty with Muslim
States, maintained freedom of religion for Muslims. 28
It thus appears that the "compact rights entrenchment" emanating from the
regime of dar-ul-mua'hada and dar-ul-sulh simply refers to all other agreements
between the MILF and the Philippine government the Philippines being the
land of compact and peace agreement that partake of the nature of a treaty
device, "treaty" being broadly defined as "any solemn agreement in writing that
sets out understandings, obligations, and benefits for both parties which provides
for a framework that elaborates the principles declared in the [MOA-AD]". 29

The MOA-AD states that the Parties "HAVE AGREED AND ACKNOWLEDGED
AS FOLLOWS", and starts with its main body.
The main body of the MOA-AD is divided into four strands, namely,
Concepts and Principles, Territory, Resources, and Governance.
A.CONCEPTS AND PRINCIPLES
This strand begins with the statement that it is "the birthright of all Moros and all
Indigenous peoples of Mindanao to identify themselves and be accepted as
'Bangsamoros'". It defines "Bangsamoro people" as the natives or original
inhabitants of Mindanao and its adjacent islands including Palawan and the Sulu
archipelago at the time of conquest or colonization, and their
descendants whether mixed or of full blood, including their spouses. 30
Thus, the concept of "Bangsamoro", as defined in this strand of the MOA-AD,
includes not only "Moros" as traditionally understood even by Muslims, 31 but
all indigenous peoples of Mindanao and its adjacent islands. The MOA-AD adds that the
freedom of choice of indigenous peoples shall be respected. What this
freedom of choice consists in has not been specifically defined. ICTaEH
The MOA-AD proceeds to refer to the "Bangsamoro homeland", the
ownership of which is vested exclusively in the Bangsamoro people by
virtue of their prior rights ofoccupation. 32 Both parties to the MOA-AD acknowledge
that ancestral domain does not form part of the public domain. 33
The Bangsamoro people are acknowledged as having the right to self-
governance, which right is said to be rooted on ancestral territoriality exercised
originally under the suzerain authority of their sultanates and the Pat a
Pangampong ku Ranaw. The sultanates were described as states
or "karajaan/kadatuan" resembling a body politic endowed with all the
elements of a nation-state in the modern sense. 34
The MOA-AD thus grounds the right to self-governance of the Bangsamoro
people on the past suzerain authority of the sultanates. As gathered, the territory
defined as the Bangsamoro homeland was ruled by several sultanates and,
specifically in the case of the Maranao, by the Pat a Pangampong ku Ranaw, a
confederation of independent principalities (pangampong) each ruled by datus
and sultans, none of whom was supreme over the others. 35
The MOA-AD goes on to describe the Bangsamoro people as "the 'First
Nation' with defined territory and with a system of government having entered
into treaties of amity and commerce with foreign nations".
The term "First Nation" is of Canadian origin referring to the indigenous
peoples of that territory, particularly those known as Indians. In Canada,
each of these indigenous peoples is equally entitled to be called "First Nation",
hence, all of them are usually described collectively by the plural "First
Nations". 36 To that extent, the MOA-AD, by identifying the Bangsamoro people as
"the First Nation" suggesting its exclusive entitlement to that designation departs
from the Canadian usage of the term.
The MOA-AD then mentions for the first time the "Bangsamoro Juridical
Entity" (BJE) to which it grants the authority and jurisdiction over the Ancestral
Domain and Ancestral Lands of the Bangsamoro. 37 ADaECI
B.TERRITORY
The territory of the Bangsamoro homeland is described as the land mass as well
as the maritime, terrestrial, fluvial and alluvial domains, including the aerial
domain and the atmospheric space above it, embracing the Mindanao-Sulu-
Palawan geographic region. 38
More specifically, the core of the BJE is defined as the present geographic
area of the ARMM thus constituting the following areas: Lanao del Sur,
Maguindanao, Sulu, Tawi-Tawi, Basilan, and Marawi City. Significantly, this core
also includes certain municipalities of Lanao del Norte that voted for inclusion in
the ARMM in the 2001 plebiscite. 39
Outside of this core, the BJE is to cover other provinces, cities, municipalities and
barangays, which are grouped into two categories, Category A and Category B.
Each of these areas is to be subjected to a plebiscite to be held on different
dates, years apart from each other. Thus, Category A areas are to be subjected
to a plebiscite not later than twelve (12) months following the signing of the MOA-
AD. 40 Category B areas, also called "Special Intervention Areas", on the other hand,
are to be subjected to a plebiscite twenty-five (25) years from the signing of a separate
agreement the Comprehensive Compact. 41
The Parties to the MOA-AD stipulate that the BJE shall have jurisdiction over all
natural resources within its "internal waters", defined as extending fifteen (15)
kilometers from the coastline of the BJE area; 42 that the BJE shall also have
"territorial waters", which shall stretch beyond the BJE internal waters up to the
baselines of the Republic of the Philippines (RP) south east and south west of mainland
Mindanao; and that within these territorial waters, the BJE and the "Central
Government" (used interchangeably with RP) shall exercise joint jurisdiction, authority
and management over all natural resources. 43 Notably, the jurisdiction over
the internal waters is not similarly described as "joint".
The MOA-AD further provides for the sharing of minerals on the territorial waters
between the Central Government and the BJE, in favor of the latter, through
production sharing and economic cooperation agreement. 44 The activities which
the Parties are allowed to conduct on the territorial waters are enumerated, among
which are the exploration and utilization of natural resources, regulation of shipping and
fishing activities, and the enforcement of police and safety measures. 45 There is no
similar provision on the sharing of minerals and allowed activities with respect to
the internal waters of the BJE.
C.RESOURCES
The MOA-AD states that the BJE is free to enter into any economic cooperation
and trade relations with foreign countries and shall have the option to establish
trade missions in those countries. Such relationships and understandings,
however, are not to include aggression against the GRP. The BJE may also
enter into environmental cooperation agreements. 46 ACcaET
The external defense of the BJE is to remain the duty and obligation of the
Central Government. The Central Government is also bound to "take necessary
steps to ensure the BJE's participation in international meetings and events" like
those of the ASEAN and the specialized agencies of the UN. The BJE is to be
entitled to participate in Philippine official missions and delegations for the
negotiation of border agreements or protocols for environmental protection and
equitable sharing of incomes and revenues involving the bodies of water
adjacent to or between the islands forming part of the ancestral domain. 47
With regard to the right of exploring for, producing, and obtaining all potential
sources of energy, petroleum, fossil fuel, mineral oil and natural gas, the
jurisdiction and control thereon is to be vested in the BJE "as the party having
control within its territorial jurisdiction". This right carries the proviso that, "in
times of national emergency, when public interest so requires", the Central
Government may, for a fixed period and under reasonable terms as may be
agreed upon by both Parties, assume or direct the operation ofsuch resources. 48
The sharing between the Central Government and the BJE of total production
pertaining to natural resources is to be 75:25 in favor of the BJE. 49
The MOA-AD provides that legitimate grievances of the Bangsamoro people
arising from any unjust dispossession of their territorial and proprietary rights,
customary land tenures, or their marginalization shall be acknowledged.
Whenever restoration is no longer possible, reparation is to be in such form as
mutually determined by the Parties. 50STDEcA
The BJE may modify or cancel the forest concessions, timber licenses,
contracts or agreements, mining concessions, Mineral Production and Sharing
Agreements (MPSA), Industrial Forest Management Agreements (IFMA), and
other land tenure instruments granted by the Philippine Government, including
those issued by the present ARMM. 51
D.GOVERNANCE
The MOA-AD binds the Parties to invite a multinational third-party to observe and
monitor the implementation of the Comprehensive Compact. This compact is to
embody the "details for the effective enforcement" and "the mechanisms and
modalities for the actual implementation" of the MOA-AD. The MOA-AD explicitly
provides that the participation of the third party shall not in any way affect the
status of the relationship between the Central Government and the BJE. 52
The "associative" relationship
between the Central Government
and the BJE
The MOA-AD describes the relationship of the Central Government and the BJE
as "associative", characterized by shared authority and responsibility. And it
states that the structure of governance is to be based on executive, legislative,
judicial, and administrative institutions with defined powers and functions in the
Comprehensive Compact.
The MOA-AD provides that its provisions requiring "amendments to the existing
legal framework" shall take effect upon signing of the Comprehensive Compact
and upon effecting the aforesaid amendments, with due regard to the non-
derogation of prior agreements and within the stipulated timeframe to be
contained in the Comprehensive Compact. As will be discussed later,
much of the present controversy hangs on the legality of this provision.
The BJE is granted the power to build, develop and maintain its own institutions
inclusive of civil service, electoral, financial and banking, education, legislation,
legal, economic, police and internal security force, judicial system and
correctional institutions, the details of which shall be discussed in the
negotiation of the comprehensive compact. AIaDcH
As stated early on, the MOA-AD was set to be signed on August 5, 2008 by
Rodolfo Garcia and Mohagher Iqbal, Chairpersons of the Peace Negotiating
Panels of the GRP and the MILF, respectively. Notably, the penultimate
paragraph of the MOA-AD identifies the signatories as "the representatives of the
Parties", meaning the GRP and MILF themselves, and not merely of the
negotiating panels. 53 In addition, the signature page of the MOA-AD states that it is
"WITNESSED BY" Datuk Othman Bin Abd Razak, Special Adviser to the Prime
Minister of Malaysia, "ENDORSED BY" Ambassador Sayed Elmasry, Adviser to
Organization of the Islamic Conference (OIC) Secretary General and Special Envoy for
Peace Process in Southern Philippines, and SIGNED "IN THE PRESENCE OF" Dr.
Albert G. Romulo, Secretary of Foreign Affairs of RP and Dato' Seri Utama Dr. Rais Bin
Yatim, Minister of Foreign Affairs, Malaysia, all of whom were scheduled to sign the
Agreement last August 5, 2008.

Annexed to the MOA-AD are two documents containing the respective
lists cum maps of the provinces, municipalities, and barangays under Categories
A and B earlier mentioned in the discussion on the strand on TERRITORY.
IV.PROCEDURAL ISSUES
A.RIPENESS
The power of judicial review is limited to actual cases or controversies. 54 Courts
decline to issue advisory opinions or to resolve hypothetical or feigned problems, or
mere academic questions. 55 The limitation of the power of judicial review to actual
cases and controversies defines the role assigned to the judiciary in a tripartite
allocation of power, to assure that the courts will not intrude into areas committed to the
other branches of government. 56
An actual case or controversy involves a conflict of legal rights, an
assertion of opposite legal claims, susceptible of judicial resolution as
distinguished from a hypothetical or abstract difference or dispute. There must be
a contrariety of legal rights that can be interpreted and enforced on the
basis of existing law and jurisprudence. 57 The Court can decide the
constitutionality of an act or treaty only when a proper case between opposing parties is
submitted for judicial determination. 58 CEHcSI
Related to the requirement of an actual case or controversy is the
requirement of ripeness. A question is ripe for adjudication when the act being
challenged has had a direct adverse effect on the individual challenging it. 59 For
a case to be considered ripe for adjudication, it is a prerequisite that something had
then been accomplished or performed by either branch before a court may come into
the picture, 60 and the petitioner must allege the existence of an immediate or
threatened injury to itself as a result of the challenged action. 61 He must show that he
has sustained or is immediately in danger of sustaining some direct injury as a
result of the act complained of. 62
The Solicitor General argues that there is no justiciable controversy that is ripe
for judicial review in the present petitions, reasoning that:
The unsigned MOA-AD is simply a list of consensus points subject to
further negotiations and legislative enactments as well as constitutional
processes aimed at attaining a final peaceful agreement. Simply put, the
MOA-AD remains to be a proposal that does not automatically create
legally demandable rights and obligationsuntil the list of operative acts
required have been duly complied with. . . .
xxx xxx xxx
In the cases at bar, it is respectfully submitted that this Honorable Court
has no authority to pass upon issues based on hypothetical or feigned
constitutional problems or interests with no concrete bases. Considering
the preliminary character of the MOA-AD, there are no concrete acts that
could possibly violate petitioners' and intervenors' rights since the acts
complained of are mere contemplated steps toward the formulation of a
final peace agreement. Plainly, petitioners and intervenors' perceived
injury, if at all, is merely imaginary and illusory apart from being
unfounded and based on mere conjectures. (Underscoring supplied)
The Solicitor General cites 63 the following provisions of the MOA-AD:
TERRITORY
xxx xxx xxx
2.Toward this end, the Parties enter into the following stipulations:
xxx xxx xxx
d.Without derogating from the requirements of prior agreements,
the Government stipulates to conduct and deliver, using all
possible legal measures, within twelve (12) months
following the signing of the MOA-AD, a plebiscite covering
the areas as enumerated in the list and depicted in the
map as Category A attached herein (the "Annex"). The
Annex constitutes an integral part of this framework
agreement. Toward this end, the Parties shall endeavor to
complete the negotiations and resolve all outstanding
issues on the Comprehensive Compact within fifteen (15)
months from the signing ofthe MOA-AD. caTESD
xxx xxx xxx
GOVERNANCE
xxx xxx xxx
7.The Parties agree that mechanisms and modalities for the actual
implementation of this MOA-AD shall be spelt out in the
Comprehensive Compact to mutually take such steps to enable it
to occur effectively. CASTDI
Any provisions of the MOA-AD requiring amendments to the existing
legal framework shall come into force upon the signing of a
Comprehensive Compact andupon effecting the necessary
changes to the legal framework with due regard to non-
derogation of prior agreements and within the stipulated
timeframe to be contained in the Comprehensive
Compact. 64 (Underscoring supplied)
The Solicitor General's arguments fail to persuade.
Concrete acts under the MOA-AD are not necessary to render the present
controversy ripe. In Pimentel, Jr. v. Aguirre, 65 this Court held:
. . . [B]y the mere enactment of the questioned law or the approval of the
challenged action, the dispute is said to have ripened into a judicial
controversy even without any other overt act. Indeed, even a singular
violation of the Constitution and/or the law is enough to awaken judicial
duty. DEaCSA
xxx xxx xxx
By the same token, when an act of the President, who in our
constitutional scheme is a coequal of Congress, is seriously alleged to
have infringed the Constitution and the laws . . . settling the dispute
becomes the duty and the responsibility of the courts. 66
In Santa Fe Independent School District v. Doe, 67 the United States Supreme
Court held that the challenge to the constitutionality of the school's policy allowing
student-led prayers and speeches before games was ripe for adjudication, even if no
public prayer had yet been led under the policy, because the policy was being
challenged as unconstitutional on its face. 68
That the law or act in question is not yet effective does not negate ripeness. For
example, in New York v. United States, 69 decided in 1992, the United States
Supreme Court held that the action by the State of New York challenging the
provisions of the Low-Level Radioactive Waste Policy Act was ripe for adjudication even
if the questioned provision was not to take effect until January 1, 1996, because the
parties agreed that New York had to take immediate action to avoid the provision's
consequences. 70
The present petitions pray for Certiorari, 71 Prohibition,
and Mandamus. Certiorari and Prohibition are remedies granted by law when any
tribunal, board or officer has acted, in the case of certiorari, or is proceeding, in the
case of prohibition, without or in excess of its jurisdiction or with grave
abuse of discretion amounting to lack or excess of jurisdiction.72 Mandamus is a remedy
granted by law when any tribunal, corporation, board, officer or person unlawfully
neglects the performance of an act which the law specifically enjoins as a duty resulting
from an office, trust, or station, or unlawfully excludes another from the use or
enjoyment of a right or office to which such other is entitled. 73 Certiorari,
Mandamus and Prohibition are appropriate remedies to raise constitutional issues and
to review and/or prohibit/nullify, when proper, acts of legislative and executive
officials. 74
The authority of the GRP Negotiating Panel is defined by Executive Order No.
3 (E.O. No. 3), issued on February 28, 2001. 75 The said executive order requires
that "[t]he government's policy framework for peace, including the systematic approach
and the administrative structure for carrying out the comprehensive peace process . . .
be governed by this Executive Order". 76
The present petitions allege that respondents GRP Panel and PAPP Esperon
drafted the terms of the MOA-AD without consulting the local government units or
communities affected, nor informing them of the proceedings. As will be
discussed in greater detail later, such omission, by itself, constitutes a departure
by respondents from their mandate under E.O. No. 3.
Furthermore, the petitions allege that the provisions of the MOA-AD violate the
Constitution. The MOA-AD provides that "any provisions of the MOA-AD
requiring amendments to the existing legal framework shall come into force upon
the signing of a Comprehensive Compact and upon effecting the necessary
changes to the legal framework", implying an amendment of the Constitution to
accommodate the MOA-AD. This stipulation, in effect, guaranteed to the MILF
the amendment of the Constitution. Such act constitutes another violation of its
authority. Again, these points will be discussed in more detail later.
As the petitions allege acts or omissions on the part of respondent that exceed
their authority, by violating their duties under E.O. No. 3 and the
provisions of the Constitution and statutes, the petitions make a prima facie case
for Certiorari, Prohibition, and Mandamus, and an actual case or controversy ripe
for adjudication exists. When an act of a branch of government is seriously
alleged to have infringed the Constitution, it becomes not only the right but
in fact the duty of the judiciary to settle the dispute. 77 HSIDTE
B.LOCUS STANDI
For a party to have locus standi, one must allege "such a personal stake in the
outcome of the controversy as to assure that concrete adverseness which
sharpens the presentation of issues upon which the court so largely depends for
illumination of difficult constitutional questions". 78
Because constitutional cases are often public actions in which the relief sought is
likely to affect other persons, a preliminary question frequently arises as to this
interest in the constitutional question raised. 79
When suing as a citizen, the person complaining must allege that he has been or
is about to be denied some right or privilege to which he is lawfully entitled or that
he is about to be subjected to some burdens or penalties by reason of the statute
or act complained of. 80 When the issue concerns a public right, it is sufficient that the
petitioner is a citizen and has an interest in the execution of the laws. 81 EaHcDS

For a taxpayer, one is allowed to sue where there is an assertion that public
funds are illegally disbursed or deflected to an illegal purpose, or that there is a
wastage of public funds through the enforcement of an invalid or unconstitutional
law. 82 The Court retains discretion whether or not to allow a taxpayer's suit. 83
In the case of a legislator or member of Congress, an act of the Executive that
injures the institution of Congress causes a derivative but nonetheless
substantial injury that can be questioned by legislators. A member of the
House of Representatives has standing to maintain inviolate the prerogatives,
powers and privileges vested by the Constitution in his office. 84
An organization may be granted standing to assert the rights of its
members, 85 but the mere invocation by the Integrated Bar of the Philippines or any
member of the legal profession of the duty to preserve the rule of law does not suffice to
clothe it with standing. 86
As regards a local government unit (LGU), it can seek relief in order to protect or
vindicate an interest of its own, and of the other LGUs. 87
Intervenors, meanwhile, may be given legal standing upon showing of facts that
satisfy the requirements of the law authorizing intervention, . 88 such as a legal
interest in the matter in litigation, or in the success of either of the parties.
In any case, the Court has discretion to relax the procedural technicality on locus
standi, given the liberal attitude it has exercised, highlighted in the case of David
v. Macapagal-Arroyo, 89 where technicalities of procedure were brushed aside, the
constitutional issues raised being of paramount public interest or of transcendental
importance deserving the attention of the Court in view of their seriousness, novelty and
weight as precedents. 90 The Court's forbearing stance on locus standi on issues
involving constitutional issues has for its purpose the protection of fundamental rights.
In not a few cases, the Court, in keeping with its duty under the Constitution to
determine whether the other branches of government have kept themselves
within the limitsof the Constitution and the laws and have not abused the
discretion given them, has brushed aside technical rules of procedure. 91 ScHADI
In the petitions at bar, petitioners Province of North Cotabato (G.R. No.
183591) Province of Zamboanga del Norte (G.R. No.
183951), City of Iligan (G.R. No. 183893) and City of Zamboanga (G.R. No.
183752) and petitioners-in-intervention Province of Sultan Kudarat,
City of Isabela and Municipality of Linamon have locus standi in view of the
direct and substantial injury that they, as LGUs, would suffer as their territories,
whether in whole or in part, are to be included in the intended domain of the BJE.
These petitioners allege that they did not vote for their inclusion in the ARMM
which would be expanded to form the BJE territory. Petitioners' legal standing is
thus beyond doubt.
In G.R. No. 183962, petitioners Ernesto Maceda, Jejomar Binay and Aquilino
Pimentel III would have no standing as citizens and taxpayers for their failure to
specify that they would be denied some right or privilege or there would be
wastage of public funds. The fact that they are a former Senator, an incumbent
mayor of Makati City, and a resident of Cagayan de Oro, respectively, is of no
consequence. Considering their invocation of the transcendental
importance of the issues at hand, however, the Court grants them standing.
Intervenors Franklin Drilon and Adel Tamano, in alleging their standing as
taxpayers, assert that government funds would be expended for the
conduct of an illegal and unconstitutional plebiscite to delineate the BJE territory.
On that score alone, they can be given legal standing. Their allegation that the
issues involved in these petitions are of"undeniable transcendental importance"
clothes them with added basis for their personality to intervene in these petitions.
With regard to Senator Manuel Roxas, his standing is premised on his being a
member of the Senate and a citizen to enforce compliance by respondents of the
public's constitutional right to be informed of the MOA-AD, as well as on a
genuine legal interest in the matter in litigation, or in the success or
failure of either of the parties. He thus possesses the requisite standing as an
intervenor.
With respect to Intervenors Ruy Elias Lopez, as a former congressman of the
3rd district of Davao City, a taxpayer and a member of the Bagobo tribe; Carlo B.
Gomez, et al.,as members of the IBP Palawan chapter, citizens and
taxpayers; Marino Ridao, as taxpayer, resident and member of the Sangguniang
Panlungsod of Cotabato City; and Kisin Buxani, as taxpayer, they failed to
allege any proper legal interest in the present petitions. Just the same, the Court
exercises its discretion to relax the procedural technicality on locus standi given
the paramount public interest in the issues at hand. ECaAHS
Intervening respondents Muslim Multi-Sectoral Movement for Peace and
Development, an advocacy group for justice and the attainment of peace and
prosperity in Muslim Mindanao; and Muslim Legal Assistance Foundation,
Inc., a non-government organization of Muslim lawyers, allege that they stand to
be benefited or prejudiced, as the case may be, in the resolution of the petitions
concerning the MOA-AD, and prays for the denial of the petitions on the grounds
therein stated. Such legal interest suffices to clothe them with standing.
B.MOOTNESS
Respondents insist that the present petitions have been rendered moot with the
satisfaction of all the reliefs prayed for by petitioners and the subsequent
pronouncement ofthe Executive Secretary that "[n]o matter what the Supreme
Court ultimately decides[,] the government will not sign the MOA". 92
In lending credence to this policy decision, the Solicitor General points out that
the President had already disbanded the GRP Peace Panel. 93
In David v. Macapagal-Arroyo, 94 this Court held that the "moot and academic"
principle not being a magical formula that automatically dissuades courts in resolving a
case, it will decide cases, otherwise moot and academic, if it finds that (a) there is a
grave violation of the Constitution; 95 (b) the situation is of exceptional character and
paramount public interest is involved; 96 (c) the constitutional issue raised requires
formulation of controlling principles to guide the bench, the bar, and the public; 97 and
(d) the case is capable ofrepetition yet evading review. 98
Another exclusionary circumstance that may be considered is where there is
a voluntary cessation of the activity complained of by the defendant or doer.
Thus, once a suit is filed and the doer voluntarily ceases the challenged conduct,
it does not automatically deprive the tribunal of power to hear and determine the
case and does not render the case moot especially when the plaintiff seeks
damages or prays for injunctive relief against the possible recurrence of the
violation. 93 SICDAa
The present petitions fall squarely into these exceptions to thus thrust them into
the domain of judicial review. The grounds cited above in David are just as
applicable in the present cases as they were, not only in David, but also
in Province of Batangas v. Romulo 100 and Manalo v. Calderon 101 where the Court
similarly decided them on the merits, supervening events that would ordinarily have
rendered the same moot notwithstanding.
Petitions not mooted
Contrary then to the asseverations of respondents, the non-signing of the MOA-
AD and the eventual dissolution of the GRP Peace Panel did not moot the
present petitions. It bears emphasis that the signing of the MOA-AD did not push
through due to the Court's issuance of a Temporary Restraining Order.
Contrary too to respondents' position, the MOA-AD cannot be considered a mere
"list of consensus points", especially given its nomenclature, the need to have
it signed or initialed by all the parties concerned on August 5, 2008, and
the far-reaching Constitutional implications of these "consensus
points", foremost of which is the creation ofthe BJE.
In fact, as what will, in the main, be discussed, there is a commitment on the
part of respondents to amend and effect necessary changes to the existing
legal framework for certain provisions of the MOA-AD to take effect.
Consequently, the present petitions are not confined to the terms and
provisions of the MOA-AD, but to other on-going and future negotiations and
agreements necessary for its realization. The petitions have not, therefore, been
rendered moot and academic simply by the public disclosure of the MOA-
AD, 101 the manifestation that it will not be signed as well as the
disbanding of the GRP Panel notwithstanding.
Petitions are imbued with paramount public interest
There is no gainsaying that the petitions are imbued with paramount public
interest, involving a significant part of the country's territory and the wide-ranging
political modifications of affected LGUs. The assertion that the MOA-AD is
subject to further legal enactments including possible Constitutional
amendments more than ever provides impetus for the Court to formulate
controlling principles to guide the bench, the bar, the public and, in this
case, the government and its negotiating entity.
Respondents cite Suplico v. NEDA, et al. 103 where the Court did not "pontificat[e] on
issues which no longer legitimately constitute an actual case or controversy [as this] will
do more harm than good to the nation as a whole".
The present petitions must be differentiated from Suplico. Primarily,
in Suplico, what was assailed and eventually cancelled was a stand-alone
government procurement contract for a national broadband network involving a
one-time contractual relation between two parties the government and a private
foreign corporation. As the issues therein involved specific government
procurement policies and standard principles on contracts, the majority opinion
in Suplico found nothing exceptional therein, the factual circumstances being
peculiar only to the transactions and parties involved in the controversy. ATcaID

The MOA-AD is part of a series of agreements
In the present controversy, the MOA-AD is a significant part of a
series of agreements necessary to carry out the Tripoli Agreement 2001. The
MOA-AD which dwells on theAncestral Domain Aspect of said Tripoli Agreement
is the third such component to be undertaken following the
implementation of the Security Aspect in August 2001 and theHumanitarian,
Rehabilitation and Development Aspect in May 2002.
Accordingly, even if the Executive Secretary, in his Memorandum of August 28,
2008 to the Solicitor General, has stated that "no matter what the Supreme Court
ultimately decides[,] the government will not sign the MOA[-AD]", mootness will
not set in in light of the terms of the Tripoli Agreement 2001.
Need to formulate principles-guidelines
Surely, the present MOA-AD can be renegotiated or another one will be drawn
up to carry out the Ancestral Domain Aspect of the Tripoli Agreement 2001,
in another or in any form, which could contain similar or significantly drastic
provisions. While the Court notes the word of the Executive Secretary that the
government "is committed to securing an agreement that is both constitutional
and equitable because that is the only way that long-lasting peace can be
assured", it is minded to render a decision on the merits in the present petitions
to formulate controlling principles to guide the bench, the bar, the public
and, most especially, the government in negotiating with the MILF
regarding Ancestral Domain.
Respondents invite the Court's attention to the separate opinion of then Chief
Justice Artemio Panganiban in Sanlakas v. Reyes 104 in which he stated that the
doctrine of"capable of repetition yet evading review" can override mootness, "provided
the party raising it in a proper case has been and/or continue to be prejudiced or
damaged as a direct result of their issuance". They contend that the Court must have
jurisdiction over the subject matter for the doctrine to be invoked. DHSEcI
The present petitions all contain prayers for Prohibition over which this Court
exercises original jurisdiction. While G.R. No. 183893 (City of Iligan v. GRP) is a
petition for Injunction and Declaratory Relief, the Court will treat it as one for
Prohibition as it has far reaching implications and raises questions that need to
be resolved. 105 At all events, the Court has jurisdiction over most if not the rest of the
petitions.
Indeed, the present petitions afford a proper venue for the Court to again apply
the doctrine immediately referred to as what it had done in a number of landmark
cases. 106There is a reasonable expectation that petitioners, particularly
the Provinces of North Cotabato, Zamboanga del Norte and Sultan Kudarat, the
Cities of Zamboanga, Iligan and Isabela, and the Municipality of Linamon, will again be
subjected to the same problem in the future as respondents' actions are
capable of repetition, in another or any form.
It is with respect to the prayers for Mandamus that the petitions have become
moot, respondents having, by Compliance of August 7, 2008, provided this Court
and petitioners with official copies of the final draft of the MOA-AD and its
annexes. Too, intervenors have been furnished, or have procured for
themselves, copies of the MOA-AD.
V.SUBSTANTIVE ISSUES
As culled from the Petitions and Petitions-in-Intervention, there are basically two
SUBSTANTIVE issues to be resolved, one relating to the manner in which the
MOA-AD was negotiated and finalized, the other relating to its provisions, viz.:
1.Did respondents violate constitutional and statutory provisions on
public consultation and the right to information when they
negotiated and later initialed the MOA-AD?
2.Do the contents of the MOA-AD violate the Constitution and the
laws?
ON THE FIRST SUBSTANTIVE ISSUE
Petitioners invoke their constitutional right to information on matters of public
concern, as provided in Section 7, Article III on the Bill of Rights:
Sec. 7.The right of the people to information on matters of public
concern shall be recognized. Access to official records, and to
documents, and papers pertaining to official acts, transactions, or
decisions, as well as to government research data used as basis for
policy development, shall be afforded the citizen, subject to such
limitations as may be provided by law. 107
As early as 1948, in Subido v. Ozaeta, 108 Court has recognized the statutory right to
examine and inspect public records, a right which was eventually accorded
constitutional status. SaHTCE
The right of access to public documents, as enshrined in both the 1973
Constitution and the 1987 Constitution, has been recognized as a self-executory
constitutional right. 109
In the 1976 case of Baldoza v. Hon. Judge Dimaano, 110 the Court ruled that
access to public records is predicated on the right of the people to acquire information
on matters ofpublic concern since, undoubtedly, in a democracy, the public has a
legitimate interest in matters of social and political significance.
. . . The incorporation of this right in the Constitution is a
recognition of the fundamental role of free exchange of information in a
democracy. There can be no realistic perception by the public of the
nation's problems, nor a meaningful democratic decision-making if they
are denied access to information of general interest. Information is
needed to enable the members of society to cope with the
exigencies of the times. As has been aptly observed: "Maintaining the
flow of such information depends on protection for both its acquisition
and its dissemination since, if either process is interrupted, the flow
inevitably ceases." . . . 111
In the same way that free discussion enables members of society to cope with
the exigencies of their time, access to information of general interest aids the
people in democratic decision-making by giving them a better perspective of the
vital issues confronting the nation 112 so that they may be able to criticize and
participate in the affairs ofthe government in a responsible, reasonable and effective
manner. It is by ensuring an unfettered and uninhibited exchange of ideas among a
well-informed public that a government remains responsive to the changes desired by
the people. 113
The MOA-AD is a matter of public concern
That the subject of the information sought in the present cases is a
matter of public concern 114 faces no serious challenge. In fact, respondents admit
that the MOA-AD is indeedof public concern. 115 In previous cases, the Court found that
the regularity of real estate transactions entered in the Register of Deeds, 116 the need
for adequate notice to the public of the various laws, 117 the civil service eligibility of a
public employee, 118 the proper management of GSIS funds allegedly used to grant
loans to public officials, 119 the recovery of the Marcoses' alleged ill-gotten
wealth, 120 and the identity of party-list nominees, 121 among others, are
matters of public concern. Undoubtedly, the MOA-AD subjectof the present cases
is of public concern, involving as it does the sovereignty and territorial
integrity of the State, which directly affects the lives of the public at large. ACcHIa
Matters of public concern covered by the right to information include steps and
negotiations leading to the consummation of the contract. In not distinguishing as
to the executory nature or commercial character of agreements, the Court has
categorically ruled:
. . . [T]he right to information "contemplates inclusion of negotiations
leading to the consummation of the transaction". Certainly, a
consummated contract is not a requirement for the exercise of the right
to information. Otherwise, the people can never exercise the right if no
contract is consummated, and if one is consummated, it may be too late
for the public to expose its defects.
Requiring a consummated contract will keep the public in the dark until
the contract, which may be grossly disadvantageous to the government
or even illegal, becomes fait accompli. This negates the State
policy of full transparency on matters of public concern, a situation which
the framers of the Constitution could not have intended. Such a
requirement will prevent the citizenry from participating in the public
discussion of any proposed contract, effectively truncating a basic right
enshrined in the Bill of Rights. We can allow neither an
emasculation of a constitutional right, nor a retreat by the State of its
avowed "policy of full disclosure of all its transactions involving public
interest." 122 (Emphasis and italics in the original)
Intended as a "splendid symmetry" 123 to the right to information under the
Bill of Rights is the policy of public disclosure under Section 28, Article II of the
Constitution reading:
Sec. 28.Subject to reasonable conditions prescribed by law, the State
adopts and implements a policy of full public disclosure of all its
transactions involving public interest. 124
The policy of full public disclosure enunciated in above-quoted Section
28 complements the right of access to information on matters of public
concern found in the Bill ofRights. The right to information guarantees
the right of the people to demand information, while Section 28 recognizes
the duty of officialdom to give information even if nobody demands. 125
The policy of public disclosure establishes a concrete ethical principle for the
conduct of public affairs in a genuinely open democracy, with the people's right to
know as the centerpiece. It is a mandate of the State to be accountable by
following such policy. 126 These provisions are vital to the exercise of the
freedom of expression and essential to hold public officials at all times accountable to
the people. 127 DcaCSE
Whether Section 28 is self-executory, the records of the deliberations of the
Constitutional Commission so disclose:
MR. SUAREZ.
And since this is not self-executory, this policy will not be enunciated or
will not be in force and effect until after Congress shall have
provided it.

MR. OPLE.
I expect it to influence the climate of public ethics immediately
but, of course, the implementing law will have to be enacted by
Congress, Mr. Presiding Officer. 128
The following discourse, after Commissioner Hilario Davide, Jr., sought
clarification on the issue, is enlightening.
MR. DAVIDE.
I would like to get some clarifications on this. Mr. Presiding Officer, did I
get the Gentleman correctly as having said that this is not a self-
executing provision? It would require a legislation by Congress to
implement?
MR. OPLE.
Yes. Originally, it was going to be self-executing, but I accepted an
amendment from Commissioner Regalado, so that the safeguards
on national interest are modified by the clause "as may be
provided by law".
MR. DAVIDE.
But as worded, does it not mean that this will immediately take effect
and Congress may provide for reasonable safeguards on the
sole ground national interest?
MR. OPLE.
Yes. I think so, Mr. Presiding Officer, I said earlier that it should
immediately influence the climate of the conduct of public
affairs but, of course, Congress here may no longer pass a law
revoking it, or if this is approved, revoking this principle, which is
inconsistent with this policy. 129 (Emphasis supplied)
Indubitably, the effectivity of the policy of public disclosure need not await
the passing of a statute. As Congress cannot revoke this principle, it is merely
directed to provide for "reasonable safeguards". The complete and effective
exercise of the right to information necessitates that its complementary provision
on public disclosure derive the same self-executory nature. Since both provisions
go hand-in-hand, it is absurd to say that the broader 130 right to information on
matters of public concern is already enforceable while the correlative duty of the State
to disclose its transactions involving public interest is not enforceable until there is an
enabling law. Respondents cannot thus point to the absence of an implementing
legislation as an excuse in not effecting such policy. SDHAEC
An essential element of these freedoms is to keep open a continuing dialogue or
process of communication between the government and the people. It is in the
interest ofthe State that the channels for free political discussion be maintained to
the end that the government may perceive and be responsive to the people's
will. 131 Envisioned to becorollary to the twin rights to information and disclosure is the
design for feedback mechanisms.
MS. ROSARIO BRAID.
Yes. And lastly, Mr. Presiding Officer, will the people be able to
participate? Will the government provide feedback
mechanisms so that the people can participate and can react
where the existing media facilities are not able to provide full
feedback mechanisms to the government? I suppose this will
be part of the government implementing operational
mechanisms.
MR. OPLE.
Yes. I think through their elected representatives and that is how these
courses take place. There is a message and a feedback, both
ways.
xxx xxx xxx
MS. ROSARIO BRAID.
Mr. Presiding Officer, may I just make one last sentence?
I think when we talk about the feedback network, we are not talking
about public officials but also network of private business
o[r] community-based organizations that will be reacting. As
a matter of fact, we will put more credence or credibility on the
private network of volunteers and voluntary community-based
organizations. So I do not think we are afraid that there will be
another OMA in the making. 132 (Emphasis supplied) ScCEIA
The imperative of a public consultation, as a species of the right to information, is
evident in the "marching orders" to respondents. The mechanics for the duty to
disclose information and to conduct public consultation regarding the peace
agenda and process is manifestly provided by E.O. No. 3. 133 The preambulatory
clause of E.O. No. 3 declares that there is a need to further enhance the
contribution of civil society to the comprehensive peace process by institutionalizing the
people's participation.
One of the three underlying principles of the comprehensive peace process is
that it "should be community-based, reflecting the sentiments, values and
principles important to all Filipinos" and "shall be defined not by the government
alone, nor by the different contending groups only, but by all Filipinos as one
community". 134 Included as a component of the comprehensive peace process is
consensus-building and empowerment for peace, which includes "continuing
consultations on both national and local levels to build consensus for a peace agenda
and process, and the mobilization and facilitation of people's participation in the peace
process". 135
Clearly, E.O. No. 3 contemplates not just the conduct of a plebiscite to
effectuate "continuing" consultations, contrary to respondents' position
that plebiscite is "more than sufficient consultation". 136
Further, E.O. No. 3 enumerates the functions and responsibilities of the PAPP,
one of which is to "[c]onduct regular dialogues with the National Peace Forum
(NPF) and other peace partners to seek relevant information, comments,
recommendations as well as to render appropriate and timely reports on the
progress of the comprehensive peace process". 137 E.O. No. 3 mandates the
establishment of the NPF to be "the principal forum for the PAPP to consult with and
seek advi[c]e from the peace advocates, peace partners and concerned
sectors of society on both national and local levels, on the implementation of the
comprehensive peace process, as well as for government[-]civil society dialogue and
consensus-building on peace agenda and initiatives". 138 aTADcH
In fine, E.O. No. 3 establishes petitioners' right to be consulted on the
peace agenda, as a corollary to the constitutional right to information and
disclosure.
PAPP Esperon committed grave
abuse of discretion
The PAPP committed grave abuse of discretion when he failed to carry out
the pertinent consultation. The furtive process by which the MOA-AD was
designed and craftedruns contrary to and in excess of the legal authority,
and amounts to a whimsical, capricious, oppressive, arbitrary and despotic
exercise thereof.
The Court may not, of course, require the PAPP to conduct the consultation in a
particular way or manner. It may, however, require him to comply with the law
and discharge the functions within the authority granted by the President. 139
Petitioners are not claiming a seat at the negotiating table, contrary to
respondents' retort in justifying the denial of petitioners' right to be consulted.
Respondents' stance manifests the manner by which they treat the salient
provisions of E.O. No. 3 on people's participation. Such disregard of the express
mandate of the President is not much different from superficial conduct toward
token provisos that border on classic lip service. 140 It illustrates a gross
evasion of positive duty and a virtual refusal to perform the duty enjoined.
As for respondents' invocation of the doctrine of executive privilege, it is not
tenable under the premises. The argument defies sound reason when contrasted
with E.O. No. 3's explicit provisions on continuing consultation and dialogue on
both national and local levels. The executive order even recognizes the
exercise of the public's righteven before the GRP makes its official
recommendations or before the government proffers its definite
propositions. 141 It bears emphasis that E.O. No. 3 seeks to elicit relevant advice,
information, comments and recommendations from the people through dialogue.
AT ALL EVENTS, respondents effectively waived the defense of executive
privilege in view of their unqualified disclosure of the official copies of the final
draft of the MOA-AD. By unconditionally complying with the Court's August 4,
2008 Resolution, without a prayer for the document's disclosure in camera, or
without a manifestation that it was complying therewith ex abundante ad
cautelam. ESTDcC
Petitioners' assertion that the Local Government Code (LGC) of 1991 declares it
a State policy to "require all national agencies and offices to conduct periodic
consultations with appropriate local government units, non-governmental and
people's organizations, and other concerned sectors of the community before
any project or program is implemented in their respective jurisdictions" 142 is well-
taken. The LGC chapter on intergovernmental relations puts flesh into this avowed
policy:
Prior Consultations Required. No project or program shall be
implemented by government authorities unless the consultations
mentioned in Sections 2 (c) and 26 hereof are complied with, and prior
approval of the sanggunian concerned is obtained: Provided, That
occupants in areas where such projects are to be implemented shall not
be evicted unless appropriate relocation sites have been provided, in
accordance with the provisions of the Constitution. 143 (Italics and
underscoring supplied)
In Lina, Jr. v. Hon. Pao, 144 the Court held that the above-stated policy and above-
quoted provision of the LGU apply only to national programs or projects which are to be
implemented in a particular local community. Among the programs and projects covered
are those that are critical to the environment and human ecology including those that
may call for the eviction of a particular group of people residing in the locality where
these will be implemented. 145 The MOA-AD is one peculiar program that
unequivocally and unilaterally vests ownership of a vast territory to the
Bangsamoro people, 146 which could pervasively and drastically result to the
diaspora or displacement of a great number of inhabitants from their total
environment.
With respect to the indigenous cultural communities/indigenous peoples
(ICCs/IPs), whose interests are represented herein by petitioner Lopez and are
adversely affected by the MOA-AD, the ICCs/IPs have, under the IPRA, the right
to participate fully at all levels of decision-making in matters which may affect
their rights, lives and destinies. 147 The MOA-AD, an instrument recognizing ancestral
domain, failed to justify its non-compliance with the clear-cut mechanisms ordained in
said Act, 148 which entails, among other things, the observance of the free and prior
informed consent of the ICCs/IPs.

Notably, the IPRA does not grant the Executive Department or any government
agency the power to delineate and recognize an ancestral domain claim by mere
agreement or compromise. The recognition of the ancestral domain is the raison
d'etre of the MOA-AD, without which all other stipulations or "consensus points"
necessarily must fail. In proceeding to make a sweeping declaration on ancestral
domain, without complying with the IPRA, which is cited as one of the TOR of the
MOA-AD, respondents clearly transcended the boundaries of their
authority. As it seems, even the heart of the MOA-AD is still subject to
necessary changes to the legal framework. While paragraph 7 on Governance
suspends the effectivity of all provisions requiring changes to the legal
framework, such clause is itself invalid, as will be discussed in the following
section. TcSHaD
Indeed, ours is an open society, with all the acts of the government subject to
public scrutiny and available always to public cognizance. This has to be so if the
country is to remain democratic, with sovereignty residing in the people and all
government authority emanating from them. 149
ON THE SECOND SUBSTANTIVE ISSUE
With regard to the provisions of the MOA-AD, there can be no question
that they cannot all be accommodated under the present Constitution and
laws. Respondents have admitted as much in the oral arguments before this
Court, and the MOA-AD itself recognizes the need to amend the existing legal
framework to render effective at least some of its provisions. Respondents,
nonetheless, counter that the MOA-AD is free of any legal infirmity because
any provisions therein which are inconsistent with the present legal framework
will not be effective until the necessary changes to that framework are made.
The validity of this argument will be considered later. For now, the Court shall
pass upon how
The MOA-AD is inconsistent with
the Constitution and laws as
presently worded.
In general, the objections against the MOA-AD center on the extent of the
powers conceded therein to the BJE. Petitioners assert that the powers granted
to the BJE exceed those granted to any local government under present laws,
and even go beyond those of the present ARMM. Before assessing some of the
specific powers that would have been vested in the BJE, however, it would be
useful to turn first to a general idea that serves as a unifying link to the different
provisions of the MOA-AD, namely, the international law concept of association.
Significantly, the MOA-AD explicitly alludes to this concept, indicating that the
Parties actually framed its provisions with it in mind.
Association is referred to in paragraph 3 on TERRITORY, paragraph 11 on
RESOURCES, and paragraph 4 on GOVERNANCE. It is in the last mentioned
provision, however, that the MOA-AD most clearly uses it to describe
the envisioned relationship between the BJE and the Central Government. aTCAcI
4.The relationship between the Central Government and the
Bangsamoro juridical entity shall be associative
characterized by shared authority and responsibility with a
structure of governance based on executive, legislative, judicial
and administrative institutions with defined powers and functions
in the comprehensive compact. A period of transition shall be
established in a comprehensive peace compact specifying the
relationship between the Central Government and the BJE.
(Emphasis and underscoring supplied)
The nature of the "associative" relationship may have been intended to be
defined more precisely in the still to be forged Comprehensive Compact.
Nonetheless, given that there is a concept of "association" in international law,
and the MOA-AD by its inclusion of international law instruments in its TOR
placed itself in an international legal context, that concept of association may be
brought to bear in understanding the use of the term "associative" in the MOA-
AD. cdrep
Keitner and Reisman state that
[a]n association is formed when two states of unequal power voluntarily
establish durable links. In the basic model, one state, the associate,
delegates certain responsibilities to the other, the principal, while
maintaining its international status as a state. Free associations
represent a middle ground between integration and independence. .
. . 150 (Emphasis and underscoring supplied)
For purposes of illustration, the Republic of the Marshall Islands and the
Federated States of Micronesia (FSM), formerly part of the U.S.-administered
Trust Territory of the Pacific Islands, 151 are associated states of the U.S. pursuant to
a Compact of Free Association. The currency in these countries is the U.S. dollar,
indicating their very close ties with the U.S., yet they issue their own travel documents,
which is a mark of their statehood. Their international legal status as states was
confirmed by the UN Security Council and by their admission to UN membership.
According to their compacts of free association, the Marshall Islands and the
FSM generally have the capacity to conduct foreign affairs in their own name and
right, such capacity extending to matters such as the law of the sea, marine
resources, trade, banking, postal, civil aviation, and cultural relations. The U.S.
government, when conducting its foreign affairs, is obligated to consult with the
governments of the Marshall Islands or the FSM on matters which it (U.S.
government) regards as relating to or affecting either government.
In the event of attacks or threats against the Marshall Islands or the FSM, the
U.S. government has the authority and obligation to defend them as if they were
part of U.S. territory. The U.S. government, moreover, has the
option of establishing and using military areas and facilities within these
associated states and has the right to bar the military personnel of any third
country from having access to these territories for military purposes.
It bears noting that in U.S. constitutional and international practice, free
association is understood as an international association between sovereigns.
The Compact of Free Association is a treaty which is subordinate to the
associated nation's national constitution, and each party may terminate the
association consistent with the right ofindependence. It has been said that, with
the admission of the U.S.-associated states to the UN in 1990, the UN
recognized that the American model of free association is actually based on an
underlying status of independence. 152 ACTISE
In international practice, the "associated state" arrangement has usually been
used as a transitional device of former colonies on their way to full
independence. Examples ofstates that have passed through the
status of associated states as a transitional phase are Antigua, St. Kitts-Nevis-
Anguilla, Dominica, St. Lucia, St. Vincent and Grenada. All have since become
independent states. 153
Back to the MOA-AD, it contains many provisions which are consistent with the
international legal concept of association, specifically the following: the BJE's
capacity to enter into economic and trade relations with foreign countries, the
commitment of the Central Government to ensure the BJE's participation in
meetings and events in the ASEAN and the specialized UN agencies, and the
continuing responsibility of the Central Government over external defense.
Moreover, the BJE's right to participate in Philippine official missions bearing on
negotiation of border agreements, environmental protection, and
sharing of revenues pertaining to the bodies of water adjacent to or between the
islands forming part of the ancestral domain, resembles the right of the
governments of FSM and the Marshall Islands to be consulted by the U.S.
government on any foreign affairs matter affecting them.
These provisions of the MOA indicate, among other things, that the
Parties aimed to vest in the BJE the status of an associated state or, at any
rate, a status closely approximating it.
The concept of association is not
recognized under the present
Constitution
No province, city, or municipality, not even the ARMM, is recognized under our
laws as having an "associative" relationship with the national government.
Indeed, the concept implies powers that go beyond anything ever granted by the
Constitution to any local or regional government. It also implies the
recognition of the associated entity as a state. The Constitution, however, does
not contemplate any state in this jurisdiction other than the Philippine State,
much less does it provide for a transitory status that aims to prepare any
part of Philippine territory for independence. caTIDE
Even the mere concept animating many of the MOA-AD's provisions, therefore,
already requires for its validity the amendment of constitutional provisions,
specifically the following provisions of Article X:
SEC. 1.The territorial and political subdivisions of the Republic of the
Philippines are the provinces, cities, municipalities, and barangays.
There shall beautonomous regions in Muslim Mindanao and the
Cordilleras as hereinafter provided.
SEC. 15.There shall be created autonomous regions in Muslim
Mindanao and in the Cordilleras consisting of provinces, cities,
municipalities, and geographical areas sharing common and distinctive
historical and cultural heritage, economic and social structures, and
other relevant characteristics within the framework ofthis Constitution
and the national sovereignty as well as territorial integrity of the
Republic of the Philippines.
The BJE is a far more powerful
entity than the autonomous region
recognized in the Constitution
It is not merely an expanded version of the ARMM, the status of its relationship
with the national government being fundamentally different from that of the
ARMM. Indeed,BJE is a state in all but name as it meets the criteria of a
state laid down in the Montevideo Convention, 154 namely, a permanent
population, a defined territory, agovernment, and a capacity to enter into relations with
other states. AEITDH

Even assuming arguendo that the MOA-AD would not necessarily sever any
portion of Philippine territory, the spirit animating it which has betrayed itself
by its use of the concept of association runs counter to the national
sovereignty and territorial integrity of the Republic.
The defining concept underlying the relationship between the national
government and the BJE being itself contrary to the present Constitution, it
is not surprising that many of the specific provisions of the MOA-AD on the
formation and powers of the BJE are in conflict with the Constitution and
the laws.
Article X, Section 18 of the Constitution provides that "[t]he creation of the
autonomous region shall be effective when approved by a majority of the votes
cast by the constituent units in a plebiscite called for the purpose, provided
that only provinces, cities, and geographic areas voting favorably in such
plebiscite shall be included in the autonomous region". (Emphasis supplied)
As reflected above, the BJE is more of a state than an autonomous region. But
even assuming that it is covered by the term "autonomous region" in the
constitutional provision just quoted, the MOA-AD would still be in conflict with it.
Under paragraph 2 (c) on TERRITORY in relation to 2 (d) and 2 (e), the present
geographic area of the ARMM and, in addition, the municipalities of Lanao del
Norte which voted for inclusion in the ARMM during the 2001 plebiscite Baloi,
Munai, Nunungan, Pantar, Tagoloan and Tangkal are automatically part of the
BJE without need of another plebiscite, in contrast to the areas under Categories
A and B mentioned earlier in the overview. That the present components of the
ARMM and the above-mentioned municipalities voted for inclusion therein in
2001, however, does not render another plebiscite unnecessary under the
Constitution, precisely because what these areas voted for then was their
inclusion in the ARMM, not the BJE. ScCIaA
The MOA-AD, moreover, would
not comply with Article X, Section
20 of the Constitution
since that provision defines the powers of autonomous regions as follows:
SEC. 20.Within its territorial jurisdiction and subject to the
provisions of this Constitution and national laws, the organic
act of autonomous regions shall provide for legislative powers over:
(1)Administrative organization;
(2)Creation of sources of revenues;
(3)Ancestral domain and natural resources;
(4)Personal, family, and property relations;
(5)Regional urban and rural planning development;
(6)Economic, social, and tourism development;
(7)Educational policies;
(8)Preservation and development of the cultural heritage; and
(9)Such other matters as may be authorized by law for the
promotion of the general welfare of the people of the
region. (Underscoring supplied)
Again on the premise that the BJE may be regarded as an autonomous region,
the MOA-AD would require an amendment that would expand the above-quoted
provision. The mere passage of new legislation pursuant to sub-paragraph No.
9 of said constitutional provision would not suffice, since any new law that might
vest in the BJE the powers found in the MOA-AD must, itself, comply with other
provisions of the Constitution. It would not do, for instance, to merely pass
legislation vesting the BJE with treaty-making power in order to accommodate
paragraph 4 of the strand on RESOURCES which states: "The BJE is free to
enter into any economic cooperation and trade relations with foreign countries:
provided, however, that such relationships and understandings do not include
aggression against the Government of the Republic of the Philippines . . . ."
Under our constitutional system, it is only the President who has that
power. Pimentel v. Executive Secretary 155 instructs:
In our system of government, the President, being the head of state, is
regarded as the sole organ and authority in external relations and is
the country's sole representative with foreign nations. As the chief
architect of foreign policy, the President acts as the country's
mouthpiece with respect to international affairs. Hence, the President is
vested with the authority to deal with foreign states and governments,
extend or withhold recognition, maintain diplomatic relations, enter
into treaties, and otherwise transact the business of foreign
relations. In the realm of treaty-making, the President has the sole
authority to negotiate with other states. (Emphasis and underscoring
supplied) CIHAED
Article II, Section 22 of the Constitution must also be amended if the
scheme envisioned in the MOA-AD is to be effected. That constitutional
provision states: "The State recognizes and promotes the rights of indigenous
cultural communities within the framework of national unity and development."
(Underscoring supplied) An associativearrangement does not uphold national
unity. While there may be a semblance of unity because of the associative ties
between the BJE and the national government, the act ofplacing a
portion of Philippine territory in a status which, in international practice, has
generally been a preparation for independence, is certainly not conducive
to nationalunity.
Besides being irreconcilable with the
Constitution, the MOA-AD is also
inconsistent with prevailing
statutory law, among which are
R.A. No. 9054 156 or the Organic
|Act of the ARMM, and the IPRA. 157
Article X, Section 3 of the Organic Act of the ARMM is a bar to the
adoption of the definition of "Bangsamoro people" used in the MOA-AD.
Paragraph 1 on CONCEPTS AND PRINCIPLES states:
1.It is the birthright of all Moros and all Indigenous
peoples of Mindanao to identify themselves and be accepted as
"Bangsamoros". The Bangsamoro people refers to those who
are natives or original inhabitants of Mindanao and its adjacent
islands including Palawan and the Sulu archipelago at the
time ofconquest or colonization of its descendants whether mixed
or of full blood. Spouses and their descendants are classified as
Bangsamoro. The freedom of choice ofthe Indigenous people shall be
respected. (Emphasis and underscoring supplied) cHAaCE
This use of the term Bangsamoro sharply contrasts with that found in the Article
X, Section 3 of the Organic Act, which, rather than lumping together the
identities of the Bangsamoro and other indigenous peoples living in Mindanao,
clearly distinguishes between Bangsamoro people and Tribal peoples, as
follows:
"As used in this Organic Act, the phrase "indigenous cultural community"
refers to Filipino citizens residing in the autonomous region who
are:
(a)Tribal peoples. These are citizens whose social, cultural and
economic conditions distinguish them from other sectors of the national
community; and
(b)Bangsa Moro people. These are citizens who are believers in
Islam and who have retained some or all of their own social,
economic, cultural, and political institutions."
Respecting the IPRA, it lays down the prevailing procedure for the delineation
and recognition of ancestral domains. The MOA-AD's manner of delineating the
ancestral domainof the Bangsamoro people is a clear departure from that
procedure. By paragraph 1 of TERRITORY, the Parties simply agree that,
subject to the delimitations in the agreed Schedules, "[t]he Bangsamoro
homeland and historic territory refer to the land mass as well as the maritime,
terrestrial, fluvial and alluvial domains, and the aerial domain, the atmospheric
space above it, embracing the Mindanao-Sulu-Palawan geographic region".
Chapter VIII of the IPRA, on the other hand, lays down a detailed procedure, as
illustrated in the following provisions thereof:
SEC. 52.Delineation Process. The identification and
delineation of ancestral domains shall be done in accordance with the
following procedures:
xxx xxx xxx
b)Petition for Delineation. The process of delineating a specific
perimeter may be initiated by the NCIP with the consent of the
ICC/IP concerned, or through a Petition for Delineation filed with
the NCIP, by a majority of the members of the ICCs/IPs; CSaIAc
c)Delineation Proper. The official delineation of ancestral domain
boundaries including census of all community members therein,
shall be immediately undertaken by the Ancestral Domains Office
upon filing of the application by the ICCs/IPs concerned.
Delineation will be done in coordination with the community
concerned and shall at all times include genuine involvement and
participation by the members of the communities concerned;
d)Proof Required. Proof of Ancestral Domain Claims shall include the
testimony of elders or community under oath, and other
documents directly or indirectly attesting to the possession or
occupation of the area since time immemorial by such ICCs/IPs in
the concept of owners which shall be any one (1) of the following
authentic documents:
1)Written accounts of the ICCs/IPs customs and traditions;
2)Written accounts of the ICCs/IPs political structure and
institution; ISaCTE
3)Pictures showing long term occupation such as those of old
improvements, burial grounds, sacred places and old
villages;
4)Historical accounts, including pacts and agreements concerning
boundaries entered into by the ICCs/IPs concerned with
other ICCs/IPs;
5)Survey plans and sketch maps;
6)Anthropological data;
7)Genealogical surveys;
8)Pictures and descriptive histories of traditional communal
forests and hunting grounds;
9)Pictures and descriptive histories of traditional landmarks such
as mountains, rivers, creeks, ridges, hills, terraces and the
like; and
10)Write-ups of names and places derived from the native
dialect of the community.
e)Preparation of Maps. On the basis of such investigation and the
findings of fact based thereon, the Ancestral Domains
Office of the NCIP shall prepare a perimeter map, complete with
technical descriptions, and a description of the natural features
and landmarks embraced therein;
f)Report of Investigation and Other Documents. A complete copy of the
preliminary census and a report of investigation, shall be prepared
by the Ancestral Domains Office of the NCIP;

g)Notice and Publication. A copy of each document, including a
translation in the native language of the ICCs/IPs concerned shall
be posted in a prominent place therein for at least fifteen (15)
days. A copy of the document shall also be posted at the local,
provincial and regional offices of the NCIP, and shall be published
in a newspaper of general circulation once a week for two (2)
consecutive weeks to allow other claimants to file opposition
thereto within fifteen (15) days from date of such publication:
Provided, That in areas where no such newspaper exists,
broadcasting in a radio station will be a valid substitute: Provided,
further, That mere posting shall be deemed sufficient if both
newspaper and radio station are not available; aCTADI
h)Endorsement to NCIP. Within fifteen (15) days from publication,
and of the inspection process, the Ancestral Domains Office shall
prepare a report to the NCIP endorsing a favorable action upon a
claim that is deemed to have sufficient proof. However, if the
proof is deemed insufficient, the Ancestral Domains Office shall
require the submission of additional evidence: Provided, That the
Ancestral Domains Office shall reject any claim that is deemed
patently false or fraudulent after inspection and verification:
Provided, further, That in case of rejection, the Ancestral Domains
Office shall give the applicant due notice, copy furnished all
concerned, containing the grounds for denial. The denial shall be
appealable to the NCIP: Provided, furthermore, That in cases
where there are conflicting claims among ICCs/IPs on the
boundaries of ancestral domain claims, the Ancestral Domains
Office shall cause the contending parties to meet and assist them
in coming up with a preliminary resolution of the conflict, without
prejudice to its full adjudication according to the section below.
xxx xxx xxx
To remove all doubts about the irreconcilability of the MOA-AD with the
present legal system, a discussion of not only the Constitution and domestic
statutes, but alsoof international law is in order, for
Article II, Section 2 of the
Constitution states that the
Philippines "adopts the generally
accepted principles of international
law as part of the law of the land".
Applying this provision of the Constitution, the Court, in Mejoff v.
Director of Prisons, 158 held that the Universal Declaration of Human Rights is
part of the law of the land on account of which it ordered the release on bail of a
detained alien of Russian descent whose deportation order had not been executed
even after two years. Similarly, the Court in Agustin v. Edu 159 applied the aforesaid
constitutional provision to the 1968 Vienna Convention on Road Signs and Signals.
International law has long recognized the right to self-determination of "peoples",
understood not merely as the entire population of a State but also a portion
thereof. In considering the question of whether the people of Quebec had a right
to unilaterally secede from Canada, the Canadian Supreme Court in
REFERENCE RE SECESSION OFQUEBEC 160 had occasion to acknowledge that
"the right of a people to self-determination is now so widely recognized in international
conventions that the principle has acquired a status beyond 'convention' and is
considered a general principle of international law".
Among the conventions referred to are the International Covenant on Civil and
Political Rights 161 and the International Covenant on Economic, Social and Cultural
Rights 162which state, in Article 1 of both covenants, that all peoples, by virtue of the
right of self-determination, "freely determine their political status and freely pursue their
economic, social, and cultural development". DICSaH
The people's right to self-determination should not, however, be understood as
extending to a unilateral right of secession. A distinction should be made
between the right ofinternal and external self-determination. REFERENCE RE
SECESSION OF QUEBEC is again instructive:
"(ii)Scope of the Right to Self-determination
126.The recognized sources of international law establish that the right
to self-determination of a people is normally fulfilled
through internal self-determination a people's pursuit of its
political, economic, social and cultural development within the
framework of an existing state. A right to externalself-determination
(which in this case potentially takes the form of the assertion of a
right to unilateral secession) arises in only the most
extreme of cases and, even then, under carefully defined
circumstances. . . .
External self-determination can be defined as in the following
statement from the Declaration on Friendly Relations, supra, as
The establishment of a sovereign and independent State, the free
association or integration with an independent State or the
emergence into any other political status freely determined by
a people constitute modes of implementing the right of self-
determination by that people. (Emphasis added) HDAaIS
127.The international law principle of self-determination has
evolved within a framework of respect for the territorial
integrity of existing states. The various international documents that
support the existence of a people's right to self-determination also
contain parallel statements supportive of the conclusion that the
exercise of such a right must be sufficiently limited to prevent threats to
an existing state's territorial integrity or the stability of relations between
sovereign states.
xxx xxx xxx (Emphasis, italics and underscoring supplied)
The Canadian Court went on to discuss the exceptional cases in which the right
to external self-determination can arise, namely, where a people is under colonial
rule, is subject to foreign domination or exploitation outside a colonial context,
and less definitely but asserted by a number of commentators is blocked from
the meaningful exercise of its right to internal self-determination. The Court
ultimately held that the population of Quebec had no right to secession, as the
same is not under colonial rule or foreign domination, nor is it being
deprived of the freedom to make political choices and pursue economic, social
and cultural development, citing that Quebec is equitably represented in
legislative, executive and judicial institutions within Canada, even occupying
prominent positions therein.
The exceptional nature of the right of secession is further exemplified in the
REPORT OF THE INTERNATIONAL COMMITTEE OF JURISTS ON THE
LEGAL ASPECTS OF THE AALAND ISLANDS QUESTION. 163 There, Sweden
presented to the Council of the League of Nations the question of whether the
inhabitants of the Aaland Islands should be authorized to determine by plebiscite if the
archipelago should remain under Finnish sovereignty or be incorporated in the
kingdom of Sweden. The Council, before resolving the question, appointed an
International Committee composed of three jurists to submit an opinion on the
preliminary issue of whether the dispute should, based on international law, be entirely
left to the domestic jurisdiction of Finland. The Committee stated the rule as follows:
. . . [I]n the absence of express provisions in international treaties, the
right of disposing of national territory is essentially an
attribute of the sovereignty ofevery State. Positive International
Law does not recognize the right of national groups, as such, to
separate themselves from the State of which they form part by the
simple expression of a wish, any more than it recognizes the
right of other States to claim such a separation. Generally speaking,
the grant or refusalof the right to a portion of its
population of determining its own political fate by plebiscite or by
some other method, is, exclusively, an attribute of the
sovereignty of every State which is definitively constituted. A
dispute between two States concerning such a question, under normal
conditions therefore, bears upon a question which International Law
leaves entirely to the domestic jurisdiction of one of the States
concerned. Any other solution would amount to an
infringement of sovereign rights of a State and would involve the
risk of creating difficulties and a lack of stability which would not only be
contrary to the very idea embodied in term "State", but would also
endanger the interests of the international community. If this right is not
possessed by a large or small section of a nation, neither can it be held
by the State to which the national group wishes to be attached, nor by
any other State. (Emphasis and underscoring supplied) DHTCaI
The Committee held that the dispute concerning the Aaland Islands did not
refer to a question which is left by international law to the domestic
jurisdiction of Finland, thereby applying the exception rather than the rule
elucidated above. Its ground for departing from the general rule, however,
was a very narrow one, namely, the Aaland Islands agitation originated at a
time when Finland was undergoing drastic political transformation. The
internal situation of Finland was, according to the Committee, so abnormal
that, for a considerable time, the conditions required for the formation of a
sovereign State did not exist. In the midst of revolution, anarchy, and civil war,
the legitimacy of the Finnish national government was disputed by a large
section of the people, and it had, in fact, been chased from the capital and
forcibly prevented from carrying out its duties. The armed camps and the
police were divided into two opposing forces. In light of these circumstances,
Finland was not, during the relevant time period, a "definitively constituted"
sovereign state. The Committee, therefore, found that Finland did not possess
the right to withhold from a portion of its population the option to separate
itself a right which sovereign nations generally have with respect to their
own populations.

Turning now to the more specific category of indigenous peoples, this term has
been used, in scholarship as well as international, regional, and state practices,
to refer to groups with distinct cultures, histories, and connections to land
(spiritual and otherwise) that have been forcibly incorporated into a larger
governing society. These groups are regarded as "indigenous" since they are the
living descendants of pre-invasion inhabitants of lands now dominated by others.
Otherwise stated, indigenous peoples, nations, or communities are culturally
distinctive groups that find themselves engulfed by settler societies born of the
forces of empire and conquest. 164 Examples of groups who have been regarded as
indigenous peoples are the Maori of New Zealand and the aboriginal
peoples of Canada.
As with the broader category of "peoples", indigenous peoples situated within
states do not have a general right to independence or secession from those
states under international law, 165 but they do have rights amounting to what was
discussed above as the right to internal self-determination.
In a historic development last September 13, 2007, the UN General Assembly
adopted the United Nations Declaration on the Rights of Indigenous Peoples (UN
DRIP) through General Assembly Resolution 61/295. The vote was 143 to 4, the
Philippines being included among those in favor, and the four voting against
being Australia, Canada, New Zealand, and the U.S. The Declaration clearly
recognized the right of indigenous peoples to self-determination, encompassing
the right to autonomy or self-government, to wit:
Article 3
Indigenous peoples have the right to self-determination. By
virtue of that right they freely determine their political status and freely
pursue their economic, social and cultural development. TAHCEc
Article 4
Indigenous peoples, in exercising their right to self-determination,
have the right to autonomy or self-government in matters relating to
their internal and local affairs, as well as ways and means for
financing their autonomous functions.
Article 5
Indigenous peoples have the right to maintain and strengthen their
distinct political, legal, economic, social and cultural institutions, while
retaining their right to participate fully, if they so choose, in the political,
economic, social and cultural life of the State.
Self-government, as used in international legal discourse pertaining to
indigenous peoples, has been understood as equivalent to "internal self-
determination". 166 The extentof self-determination provided for in the UN DRIP is
more particularly defined in its subsequent articles, some of which are quoted
hereunder:
Article 8
1.Indigenous peoples and individuals have the right not to be subjected
to forced assimilation or destruction of their culture.
2.States shall provide effective mechanisms for prevention of, and
redress for:
(a)Any action which has the aim or effect of depriving
them of their integrity as distinct peoples, or of their
cultural values or ethnic identities;
(b)Any action which has the aim or effect of dispossessing
them of their lands, territories or resources;
(c)Any form of forced population transfer which has the aim
or effect of violating or undermining any of their rights;
(d)Any form of forced assimilation or integration;
(e)Any form of propaganda designed to promote or incite
racial or ethnic discrimination directed against them.
Article 21
1.Indigenous peoples have the right, without discrimination, to the
improvement of their economic and social conditions, including,
inter alia, in the areas ofeducation, employment, vocational
training and retraining, housing, sanitation, health and social
security. SHCaDA
2.States shall take effective measures and, where appropriate, special
measures to ensure continuing improvement of their economic
and social conditions. Particular attention shall be paid to the
rights and special needs of indigenous elders, women, youth,
children and persons with disabilities.
Article 26
1.Indigenous peoples have the right to the lands, territories and
resources which they have traditionally owned, occupied or
otherwise used or acquired.
2.Indigenous peoples have the right to own, use, develop and control the
lands, territories and resources that they possess by
reason of traditional ownership or other traditional occupation or
use, as well as those which they have otherwise acquired.
3.States shall give legal recognition and protection to these lands,
territories and resources. Such recognition shall be conducted
with due respect to the customs, traditions and land tenure
systems of the indigenous peoples concerned. ScCIaA
Article 30
1.Military activities shall not take place in the lands or
territories of indigenous peoples, unless justified by a relevant
public interest or otherwise freely agreed with or requested by the
indigenous peoples concerned.
2.States shall undertake effective consultations with the indigenous
peoples concerned, through appropriate procedures and in
particular through their representative institutions, prior to using
their lands or territories for military activities.
Article 32
1.Indigenous peoples have the right to determine and develop priorities
and strategies for the development or use of their lands or
territories and other resources.
2.States shall consult and cooperate in good faith with the indigenous
peoples concerned through their own representative institutions in
order to obtain their free and informed consent prior to the
approval of any project affecting their lands or territories and other
resources, particularly in connection with the development,
utilization or exploitation of mineral, water or other resources. CEHcSI
3.States shall provide effective mechanisms for just and fair redress for
any such activities, and appropriate measures shall be taken to
mitigate adverse environmental, economic, social, cultural or
spiritual impact.
Article 37
1.Indigenous peoples have the right to the recognition, observance and
enforcement of treaties, agreements and other constructive
arrangements concluded with States or their successors and to
have States honour and respect such treaties, agreements and
other constructive arrangements.
2.Nothing in this Declaration may be interpreted as diminishing or
eliminating the rights of indigenous peoples contained in treaties,
agreements and other constructive arrangements.
Article 38
States in consultation and cooperation with indigenous peoples, shall
take the appropriate measures, including legislative measures, to
achieve the ends of this Declaration. EScIAa
Assuming that the UN DRIP, like the Universal Declaration on Human Rights,
must now be regarded as embodying customary international law a question
which the Court need not definitively resolve here the obligations enumerated
therein do not strictly require the Republic to grant the Bangsamoro people,
through the instrumentality ofthe BJE, the particular rights and powers provided
for in the MOA-AD. Even the more specific provisions of the UN DRIP are
general in scope, allowing for flexibility in its application by the different States.
There is, for instance, no requirement in the UN DRIP that States now guarantee
indigenous peoples their own police and internal security force. Indeed, Article 8
presupposes that it is the State which will provide protection for indigenous
peoples against acts like the forced dispossession of their lands a function that
is normally performed by police officers. If the protection of a right so essential to
indigenous people's identity is acknowledged to be the responsibility of the State,
then surely the protection of rights less significant to them as such peoples would
also be the duty of States. Nor is there in the UN DRIP an
acknowledgement of the right of indigenous peoples to the aerial domain and
atmospheric space. What it upholds, in Article 26 thereof, is the
right of indigenous peoples to the lands, territories and resources which they
have traditionally owned, occupied or otherwise used or acquired. IDTSEH
Moreover, the UN DRIP, while upholding the right of indigenous peoples to
autonomy, does not obligate States to grant indigenous peoples the near-
independent status of an associated state. All the rights recognized in that
document are qualified in Article 46 as follows:
1.Nothing in this Declaration may be interpreted as implying for any
State, people, group or person any right to engage in any activity
or to perform any act contrary to the Charter of the United Nations
or construed as authorizing or encouraging any action which
would dismember or impair, totally or in part, the territorial
integrity or political unity of sovereign and independent
States.
Even if the UN DRIP were considered as part of the law of the land pursuant to
Article II, Section 2 of the Constitution, it would not suffice to uphold the
validity of the MOA-AD so as to render its compliance with other laws
unnecessary.
It is, therefore, clear that the MOA-AD contains numerous provisions that
cannot be reconciled with the Constitution and the laws as presently
worded.Respondents proffer, however, that the signing of the MOA-AD alone
would not have entailed any violation of law or grave abuse of discretion on their
part, precisely because it stipulates that the provisions thereof inconsistent with
the laws shall not take effect until these laws are amended. They cite paragraph
7 of the MOA-AD strand on GOVERNANCE quoted earlier, but which is
reproduced below for convenience: AcSIDE
7.The Parties agree that the mechanisms and modalities for the actual
implementation of this MOA-AD shall be spelt out in the Comprehensive
Compact to mutually take such steps to enable it to occur effectively.
Any provisions of the MOA-AD requiring amendments to the existing
legal framework shall come into force upon signing of a Comprehensive
Compact and upon effecting the necessary changes to the legal
framework with due regard to non derogation of prior agreements and
within the stipulated timeframe to be contained in the Comprehensive
Compact.

Indeed, the foregoing stipulation keeps many controversial provisions of the
MOA-AD from coming into force until the necessary changes to the legal
framework are effected.While the word "Constitution" is not mentioned in the
provision now under consideration or anywhere else in the MOA-AD, the
term "legal framework" is certainly broad enough to include the
Constitution.
Notwithstanding the suspensive clause, however, respondents, by their mere
act of incorporating in the MOA-AD the provisions thereof regarding the
associative relationship between the BJE and the Central Government, have
already violated the Memorandum of Instructions From The President dated
March 1, 2001, which states that the "negotiations shall be conducted in
accordance with . . . the principles of the sovereignty and territorial
integrity of the Republic of the Philippines". (Emphasis supplied) Establishing an
associative relationship between the BJE and the Central Government is, for the
reasons already discussed, a preparation for independence, or worse, an implicit
acknowledgment of an independent status already prevailing. HDAaIS
Even apart from the above-mentioned Memorandum, however, the MOA-AD is
defective because the suspensive clause is invalid, as discussed below.
The authority of the GRP Peace Negotiating Panel to negotiate with the MILF is
founded on E.O. No. 3, Section 5 (c), which states that there shall be established
Government Peace Negotiating Panels for negotiations with different rebel
groups to be "appointed by the President as her official emissaries to conduct
negotiations, dialogues, and face-to-face discussions with rebel groups". These
negotiating panels are to report to the President, through the PAPP on the
conduct and progress of the negotiations.
It bears noting that the GRP Peace Panel, in exploring lasting solutions to the
Moro Problem through its negotiations with the MILF, was not restricted by E.O.
No. 3 only to those options available under the laws as they presently stand.
One of the components of a comprehensive peace process, which E.O. No.
3 collectively refers to as the "Paths to Peace", is the pursuit of social, economic,
and political reforms which may require new legislation or even constitutional
amendments. Sec. 4 (a) of E.O. No. 3, which reiterates Section 3 (a), of E.O. No.
125, 167 states: HSEcTC
SEC. 4.The Six Paths to Peace. The components of the
comprehensive peace process comprise the processes known as the
"Paths to Peace". These component processes are interrelated and not
mutually exclusive, and must therefore be pursued simultaneously in a
coordinated and integrated fashion. They shall include, but may not be
limited to, the following:
a.PURSUIT OF SOCIAL, ECONOMIC AND POLITICAL
REFORMS. This component involves the vigorous
implementation of various policies, reforms, programs
and projects aimed at addressing the root
causes of internal armed conflicts and social unrest.
This may require administrative action, new legislation
or even constitutional amendments.
xxx xxx xxx (Emphasis supplied)
The MOA-AD, therefore, may reasonably be perceived as an
attempt of respondents to address, pursuant to this provision of E.O. No. 3, the
root causes of the armed conflict in Mindanao. The E.O. authorized them to
"think outside the box", so to speak. Hence, they negotiated and were set on
signing the MOA-AD that included various social, economic, and political reforms
which cannot, however, all be accommodated within the present legal framework,
and which thus would require new legislation and constitutional amendments.
The inquiry on the legality of the "suspensive clause", however, cannot stop here,
because it must be asked AIcaDC
whether the President herself may
exercise the power delegated to the
GRP Peace Panel under E.O. No. 3,
Sec. 4 (a).
The President cannot delegate a power that she herself does not possess. May
the President, in the course of peace negotiations, agree to pursue reforms that
would require new legislation and constitutional amendments, or should the
reforms be restricted only to those solutions which the present laws allow? The
answer to this question requires a discussion of HIEAcC
the extent of the President's power
to conduct peace negotiations.
That the authority of the President to conduct peace negotiations with rebel
groups is not explicitly mentioned in the Constitution does not mean that she has
no such authority. In Sanlakas v. Executive Secretary, 168 in issue was the
authority of the President to declare a state of rebellion an authority which is not
expressly provided for in the Constitution. The Court held thus:
"In her ponencia in Marcos v. Manglapus, Justice Cortes put her thesis
into jurisprudence. There, the Court, by a slim 8-7 margin, upheld the
President's power to forbid the return of her exiled predecessor. The
rationale for the majority's ruling rested on the President's
. . . unstated residual powers which are implied from the
grant of executive power and which are necessary for her to
comply with her duties under the Constitution. The
powers of the President are not limited to what are expressly
enumerated in the article on the Executive Department and in
scattered provisions of the Constitution. This is so,
notwithstanding the avowed intent of the members of the
Constitutional Commission of 1986 to limit the powers of the
President as a reaction to the abuses under the regime of Mr.
Marcos, for the result was a limitation of specific powers of the
President, particularly those relating to the commander-in-chief
clause, but not a diminution of the general grant of executive
power. cEITCA
Thus, the President's authority to declare a state of rebellion
springs in the main from her powers as chief executive and, at the
same time, draws strength from her Commander-in-Chief powers. .
. . (Emphasis and underscoring supplied)
Similarly, the President's power to conduct peace negotiations is implicitly
included in her powers as Chief Executive and Commander-in-Chief. As Chief
Executive, the President has the general responsibility to promote public peace,
and as Commander-in-Chief, she has the more specific duty to prevent and
suppress rebellion and lawless violence. 169
As the experience of nations which have similarly gone through internal armed
conflict will show, however, peace is rarely attained by simply pursuing a military
solution. Oftentimes, changes as far-reaching as a fundamental
reconfiguration of the nation's constitutional structure is required. The
observations of Dr. Kirsti Samuels are enlightening, to wit:
. . . [T]he fact remains that a successful political and governance
transition must form the core of any post-conflict peace-building mission.
As we have observed in Liberia and Haiti over the last ten years, conflict
cessation without modification of the political environment, even where
state-building is undertaken through technical electoral assistance and
institution- or capacity-building, is unlikely to succeed. On average, more
than 50 percent of states emerging from conflict return to conflict.
Moreover, a substantial proportion of transitions have resulted in weak or
limited democracies.
The design of a constitution and its constitution-making process can play
an important role in the political and governance transition. Constitution-
making after conflict is an opportunity to create a common vision of the
future of a state and a road map on how to get there. The constitution
can be partly a peace agreement and partly a framework setting up the
rules by which the new democracy will operate. 170
In the same vein, Professor Christine Bell, in her article on the nature and legal
status of peace agreements, observed that the typical way that peace
agreements establish or confirm mechanisms for demilitarization and
demobilization is by linking them to new constitutional structures addressing
governance, elections, and legal and human rights institutions. 171
In the Philippine experience, the link between peace agreements and
constitution-making has been recognized by no less than the framers of the
Constitution. Behind the provisions of the Constitution on autonomous
regions 172 is the framers' intention to implement a particular peace agreement,
namely, the Tripoli Agreement of 1976 between theGRP and the MNLF, signed by then
Undersecretary of National Defense Carmelo Z. Barbero and then MNLF Chairman Nur
Misuari. aTIEcA
MR. ROMULO.
There are other speakers; so, although I have some more questions, I
will reserve my right to ask them if they are not covered by the
other speakers. I have only two questions.
I heard one of the Commissioners say that local autonomy already
exists in the Muslim region; it is working very well; it has, in fact,
diminished a great dealof the problems. So, my question is: since
that already exists, why do we have to go into something
new?
MR. OPLE.
May I answer that on behalf of Chairman Nolledo. Commissioner Yusup
Abubakar is right that certain definite steps have been taken to
implement the provisions of the Tripoli Agreement with
respect to an autonomous region in Mindanao. This is a good
first step, but there is no question that this is merely a partial
response to the Tripoli Agreement itself and to the fuller
standard of regional autonomy contemplated in that
agreement, and now by state policy. 173 (Emphasis supplied)
The constitutional provisions on autonomy and the statutes enacted pursuant to
them have, to the credit of their drafters, been partly successful. Nonetheless, the
Filipino people are still faced with the reality of an on-going conflict between the
Government and the MILF. If the President is to be expected to find means for
bringing this conflict to an end and to achieve lasting peace in Mindanao, then
she must be given the leeway to explore, in the course of peace negotiations,
solutions that may require changes to the Constitution for their implementation.
Being uniquely vested with the power to conduct peace negotiations with rebel
groups, the President is in a singular position to know the precise nature of their
grievances which, if resolved, may bring an end to hostilities. DAaIEc

The President may not, of course, unilaterally implement the solutions that she
considers viable, but she may not be prevented from submitting them as
recommendations to Congress, which could then, if it is minded, act upon them
pursuant to the legal procedures for constitutional amendment and revision. In
particular, Congress would have the option, pursuant to Article XVII, Sections 1
and 3 of the Constitution, to propose the recommended amendments or revision
to the people, call a constitutional convention, or submit to the electorate the
question of calling such a convention.
While the President does not possess constituent powers as those powers may
be exercised only by Congress, a Constitutional Convention, or the people
through initiative and referendum she may submit proposals for constitutional
change to Congress in a manner that does not involve the
arrogation of constituent powers.
In Sanidad v. COMELEC, 174 in issue was the legality of then President Marcos'
act of directly submitting proposals for constitutional amendments to a referendum,
bypassing the interim National Assembly which was the body vested by the 1973
Constitution with the power to propose such amendments. President Marcos, it will be
recalled, never convened the interim National Assembly. The majority upheld the
President's act, holding that "the urges of absolute necessity" compelled the President
as the agent of the people to act as he did, there being no interim National Assembly to
propose constitutional amendments. Against this ruling, Justices Teehankee and Muoz
Palma vigorously dissented. The Court's concern at present, however, is not with regard
to the point on which it was then divided in that controversial case, but on that which
was not disputed by either side.
Justice Teehankee's dissent, 175 in particular, bears noting. While he disagreed that
the President may directly submit proposed constitutional amendments to a referendum,
implicit in his opinion is a recognition that he would have upheld the President's action
along with the majority had the President convened the interim National Assembly and
coursed his proposals through it. Thus Justice Teehankee opined:
"Since the Constitution provides for the organization of the essential
departments of government, defines and delimits the powers of each
and prescribes the manner of the exercise of such powers, and the
constituent power has not been granted to but has been withheld from
the President or Prime Minister, it follows that the President's questioned
decrees proposing and submitting constitutional amendments directly to
the people (without the intervention of the interim National
Assembly in whom the power is expressly vested) are
devoid of constitutional and legal basis." 176 (Emphasis supplied)
From the foregoing discussion, the principle may be inferred that the President
in the course of conducting peace negotiations may validly consider
implementing even those policies that require changes to the Constitution, but
she may not unilaterally implement them without the
intervention of Congress, or act in any way as if the assent of that body
were assumed as a certainty. TEAaDC
Since, under the present Constitution, the people also have the power to directly
propose amendments through initiative and referendum, the President may also
submit her recommendations to the people, not as a formal proposal to be voted
on in a plebiscite similar to what President Marcos did in Sanidad, but for their
independent consideration of whether these recommendations merit being
formally proposed through initiative.
These recommendations, however, may amount to nothing more than the
President's suggestions to the people, for any further involvement in the
process of initiative by the Chief Executive may vitiate its character as a genuine
"people's initiative". The only initiative recognized by the Constitution is that
which truly proceeds from the people. As the Court stated in Lambino v.
COMELEC: 177
"The Lambino Group claims that their initiative is the 'people's voice'.
However, the Lambino Group unabashedly states in ULAP Resolution
No. 2006-02, in the verification of their petition with the COMELEC, that
'ULAP maintains its unqualified support to the agenda of Her Excellency
President Gloria Macapagal-Arroyo for constitutional reforms'. The
Lambino Group thus admits that their 'people's' initiative is
an 'unqualified support to the agenda' of the incumbent President to
change the Constitution. This forewarns the Court to be
wary of incantations of 'people's voice' or 'sovereign will' in the present
initiative." SEcITC
It will be observed that the President has authority, as stated in her
oath of office, 178 only to preserve and defend the Constitution. Such presidential
power does not, however, extend to allowing her to change the Constitution, but simply
to recommend proposed amendments or revision. As long as she limits herself to
recommending these changes and submits to the proper procedure for constitutional
amendments and revision, her mere recommendation need not be construed as an
unconstitutional act.
The foregoing discussion focused on the President's authority to
propose constitutional amendments, since her authority to propose
new legislation is not in controversy. It has been an accepted practice for
Presidents in this jurisdiction to propose new legislation. One of the more
prominent instances the practice is usually done is in the yearly State of the
Nation Address of the President to Congress. Moreover, the annual general
appropriations bill has always been based on the budget prepared by the
President, which for all intents and purposes is a proposal for new legislation
coming from the President. 179
The "suspensive clause" in the
MOA-AD viewed in light of the
above-discussed standards
Given the limited nature of the President's authority to propose constitutional
amendments, she cannot guarantee to any third party that the required
amendments will eventually be put in place, nor even be submitted to a
plebiscite. The most she could do is submit these proposals as recommendations
either to Congress or the people, in whom constituent powers are vested.
Paragraph 7 on Governance of the MOA-AD states, however, that all provisions
thereof which cannot be reconciled with the present Constitution and laws "shall
come into force upon signing of a Comprehensive Compact and upon effecting
the necessary changes to the legal framework". This stipulation does not bear
the marks of a suspensive condition defined in civil law as a future
and uncertain event but of a term. It is not a question of whether the necessary
changes to the legal framework will be effected, but when. That there is no
uncertainty being contemplated is plain from what follows, for the paragraph goes
on to state that the contemplated changes shall be "with due regard to non
derogation of prior agreements and within the stipulated timeframe to be
contained in the Comprehensive Compact".
Pursuant to this stipulation, therefore, it is mandatory for the GRP to effect the
changes to the legal framework contemplated in the MOA-AD which changes
would include constitutional amendments, as discussed earlier. It bears noting
that, TSHcIa
By the time these changes are put in
place, the MOA-AD itself would be
counted among the "prior
agreements" from which there
could be no derogation.
What remains for discussion in the Comprehensive Compact would merely be
the implementing details for these "consensus points" and, notably,
the deadline for effecting the contemplated changes to the legal framework.
Plainly, stipulation-paragraph 7 on GOVERNANCE is inconsistent with the
limits of the President's authority to propose constitutional amendments, it
being a virtual guarantee that the Constitution and the laws of the Republic of the
Philippines will certainly be adjusted to conform to all the "consensus points"
found in the MOA-AD. Hence, it must be struck down as unconstitutional.
A comparison between the "suspensive clause" of the MOA-AD with a similar
provision appearing in the 1996 final peace agreement between the MNLF and
the GRP is most instructive.
As a backdrop, the parties to the 1996 Agreement stipulated that it would be
implemented in two phases. Phase I covered a three-year transitional period
involving the putting up of new administrative structures through Executive Order,
such as the Special Zone of Peace and Development (SZOPAD) and the
Southern Philippines Council for Peace and Development (SPCPD), while Phase
II covered the establishment of the new regional autonomous
government through amendment or repeal of R.A. No. 6734, which was then the
Organic Act of the ARMM.
The stipulations on Phase II consisted of specific agreements on the
structure of the expanded autonomous region envisioned by the parties. To that
extent, they are similar to the provisions of the MOA-AD. There is, however, a
crucial difference between the two agreements. While the MOA-AD virtually
guarantees that the "necessary changes to the legal framework" will be put
in place, the GRP-MNLF final peace agreement states thus: "Accordingly, these
provisions [on Phase II] shall be recommended by theGRP to Congress for
incorporation in the amendatory or repealing law". cHECAS
Concerns have been raised that the MOA-AD would have given rise to a binding
international law obligation on the part of the Philippines to change its
Constitution in conformity thereto, on the ground that it may be considered either
as a binding agreement under international law, or a unilateral declaration of the
Philippine government to the international community that it would grant to the
Bangsamoro people all the concessions therein stated. Neither ground finds
sufficient support in international law, however.
The MOA-AD, as earlier mentioned in the overview thereof, would have included
foreign dignitaries as signatories. In addition, representatives of other nations
were invited to witness its signing in Kuala Lumpur. These circumstances readily
lead one to surmise that the MOA-AD would have had the status of a binding
international agreement had it been signed. An examination of the prevailing
principles in international law, however, leads to the contrary conclusion.

The Decision on CHALLENGE TO JURISDICTION: LOM ACCORD
AMNESTY 180 (the Lom Accord case) of the Special Court of Sierra Leone is
enlightening. The Lom Accord was a peace agreement signed on July 7, 1999
between the Government of Sierra Leone and the Revolutionary United Front (RUF), a
rebel group with which the Sierra Leone Government had been in armed conflict for
around eight years at the time of signing. There were non-contracting signatories to the
agreement, among which were the Government of the Togolese Republic, the
Economic Community of West African States, and the UN.
On January 16, 2002, after a successful negotiation between the UN Secretary-
General and the Sierra Leone Government, another agreement was entered into
by the UN and that Government whereby the Special Court of Sierra Leone was
established. The sole purpose of the Special Court, an international court, was to
try persons who bore the greatest responsibility for serious
violations of international humanitarian law and Sierra Leonean law committed in
the territory of Sierra Leone since November 30, 1996. AETcSa
Among the stipulations of the Lom Accord was a provision for the full
pardon of the members of the RUF with respect to anything done by them in
pursuit of their objectives as members of that organization since the conflict
began.
In the Lom Accord case, the Defence argued that the Accord created
an internationally binding obligation not to prosecute the beneficiaries of the
amnesty provided therein, citing, among other things, the participation of foreign
dignitaries and international organizations in the finalization of that agreement.
The Special Court, however, rejected this argument, ruling that the Lome Accord
is not a treaty and that it can only create binding obligations and rights between
the parties in municipal law, not in international law. Hence, the Special Court
held, it is ineffective in depriving an international court like it of jurisdiction.
"37.In regard to the nature of a negotiated
settlement of an internal armed conflict it is easy to assume and
to argue with some degree of plausibility, as Defence
counsel for the defendants seem to have done, that the mere
fact that in addition to the parties to the conflict, the
document formalizing the settlement is signed by foreign
heads of state or their representatives and
representatives of international organizations, means the
agreement ofthe parties is internationalized so as to create
obligations in international law. cHITCS
xxx xxx xxx
40.Almost every conflict resolution will involve the parties to the conflict
and the mediator or facilitator of the settlement, or persons or
bodies under whose auspices the settlement took place but who
are not at all parties to the conflict, are not contracting parties and
who do not claim any obligation from the contracting parties or
incur any obligation from the settlement.
41.In this case, the parties to the conflict are the lawful
authority of the State and the RUF which has no
status of statehood and is to all intents and purposes a
faction within the state. The non-contracting
signatories of the Lom Agreement were moral
guarantors of the principle that, in the termsof Article
XXXIV of the Agreement, "this peace agreement is
implemented with integrity and in good faith by both parties".
The moral guarantors assumed no legal obligation. It is
recalled that the UN by its representative appended, presumably
for avoidance of doubt, an understanding of the extent ofthe
agreement to be implemented as not including certain
international crimes.
42.An international agreement in the nature of a treaty must create rights
and obligations regulated by international law so that a
breach of its terms will be a breach determined under
international law which will also provide principle
means of enforcement. The Lom Agreement created neither
rights nor obligations capable of being regulated by
international law. An agreement such as the Lom
Agreement which brings to an end an internal armed conflict
no doubt creates a factual situation of restoration of peace
that the international community acting through the Security
Council may take note of. That, however, will not convert it to
an international agreement which creates an obligation
enforceable in international, as distinguished from municipal,
law.A breach of the terms of such a peace agreement resulting in
resumption of internal armed conflict or creating a threat to peace
in the determination of the Security Council may indicate a
reversal of the factual situation of peace to be visited with
possible legal consequences arising from the new
situation of conflict created. Such consequences such as action
by the Security Council pursuant to Chapter VII arise from the
situation and not from the agreement, nor from the obligation
imposed by it. Such action cannot be regarded as a remedy for
the breach. A peace agreement which settles
an internalarmed conflict cannot be ascribed the same status
as one which settles an international armed conflict which,
essentially, must be between two or more warring States.
The Lom Agreement cannot be characterised as an
international instrument. . . ." (Emphasis, italics and
underscoring supplied) AHSaTI
Similarly, that the MOA-AD would have been signed by representatives of States
and international organizations not parties to the Agreement would not have
sufficed to vest in it a binding character under international law.
In another vein, concern has been raised that the MOA-AD would amount to a
unilateral declaration of the Philippine State, binding under international law, that
it would comply with all the stipulations stated therein, with the result that it would
have to amend its Constitution accordingly regardless of the true will of the
people. Cited as authority for this view is Australia v. France, 181 also known as
the Nuclear Tests Case, decided by the International Court of Justice (ICJ). EcIaTA
In the Nuclear Tests Case, Australia challenged before the ICJ the
legality of France's nuclear tests in the South Pacific. France refused to appear in
the case, but public statements from its President, and similar statements from
other French officials including its Minister of Defence, that its 1974
series of atmospheric tests would be its last, persuaded the ICJ to dismiss the
case. 182 Those statements, the ICJ held, amounted to a legal undertaking addressed
to the international community, which required no acceptance from other States for it to
become effective.
Essential to the ICJ ruling is its finding that the French government intended to
be bound to the international community in issuing its public statements, viz.:
43.It is well recognized that declarations made by way of unilateral acts,
concerning legal or factual situations, may have the
effect of creating legal obligations. Declarations of this kind may
be, and often are, very specific. When it is the intention of the
State making the declaration that it should become bound
according to its terms, that intention confers on the
declaration the character of a legal undertaking, the State
being thenceforth legally required to follow a
course of conduct consistent with the declaration. An
undertaking of this kind, if given publicly, and with an intent to be
bound, even though not made within the context of international
negotiations, is binding. In these circumstances, nothing in the
nature of a quid pro quo nor any subsequent acceptance of the
declaration, nor even any reply or reaction from other States, is
required for the declaration to take effect, since such a
requirement would be inconsistent with the strictly unilateral
nature of the juridical act by which the pronouncement by the
State was made.
44.Of course, not all unilateral acts imply obligation; but a State may
choose to take up a certain position in relation to a particular
matter with the intention of being bound the intention is to
be ascertained by interpretation of the act. When States make
statements by which their freedom of action is to be limited, a
restrictive interpretation is called for. cCSTHA
xxx xxx xxx
51.In announcing that the 1974 series of atmospheric tests would
be the last, the French Government conveyed to the world at
large, including the Applicant, its intention effectively to
terminate these tests. It was bound to assume that other
States might take note of these statements and rely on their
being effective. The validity of these statements and their
legal consequences must be considered within the general
framework of the security of international intercourse, and
the confidence and trust which are so essential in the relations
among States. It is from the actual substance ofthese
statements, and from the circumstances attending their
making, that the legal implications of the unilateral act must
be deduced. The objectsof these statements are clear and
they were addressed to the international community as a
whole, and the Court holds that they constitute an
undertaking possessing legal effect. The Court considers *270
that the President of the Republic, in deciding upon the effective
cessation of atmospheric tests, gave an undertaking to the
international community to which his words were addressed. . . .
(Emphasis and underscoring supplied)
As gathered from the above-quoted ruling of the ICJ, public statements of a state
representative may be construed as a unilateral declaration only when the
following conditions are present: the statements were clearly addressed to the
international community, the state intended to be bound to that community by its
statements, and that not to give legal effect to those statements would be
detrimental to the security of international intercourse. Plainly, unilateral
declarations arise only in peculiar circumstances.
The limited applicability of the Nuclear Tests Case ruling was recognized in a
later case decided by the ICJ entitled Burkina Faso v. Mali, 183 also known as
the Case Concerning the Frontier Dispute. The public declaration subject of that case
was a statement made by the President of Mali, in an interview by a foreign press
agency, that Mali would abide by the decision to be issued by a commission of the
Organization of African Unity on a frontier dispute then pending between Mali and
Burkina Faso. CaASIc

Unlike in the Nuclear Tests Case, the ICJ held that the statement of Mali's
President was not a unilateral act with legal implications. It clarified that its ruling
in the Nuclear Tests case rested on the peculiar circumstances surrounding the
French declaration subject thereof, to wit:
40.In order to assess the intentions of the author of a unilateral act,
account must be taken of all the factual circumstances in which
the act occurred. For example, in the Nuclear Tests cases, the
Court took the view that since the applicant States were not
the only ones concerned at the possible
continuance of atmospheric testing by the French
Government, that Government's unilateral declarations had
'conveyed to the world at large, including the Applicant, its
intention effectively to terminate these tests' (I.C.J. Reports
1974, p. 269, para. 51; p. 474, para. 53). In the particular
circumstances of those cases, the French Government could
not express an intention to be bound otherwise than by
unilateral declarations. It is difficult to see how it could have
accepted the terms of a negotiated solution with each of the
applicants without thereby jeopardizing its contention that its
conduct was lawful. The circumstances of the present case
are radically different. Here, there was nothing to hinder the
Parties from manifesting an intention to accept the binding
character of the conclusions of the Organization of African
Unity Mediation Commission by the normal method: a formal
agreement on the basis of reciprocity. Since no
agreement of this kind was concluded between the Parties, the
Chamber finds that there are no grounds to interpret the
declaration made by Mali's head of State on 11 April 1975 as a
unilateral act with legal implications in regard to the present case.
(Emphasis and underscoring supplied)
Assessing the MOA-AD in light of the above criteria, it would not have amounted
to a unilateral declaration on the part of the Philippine State to the international
community. The Philippine panel did not draft the same with the clear
intention of being bound thereby to the international community as a whole or to
any State, but only to the MILF. While there were States and international
organizations involved, one way or another, in the negotiation and projected
signing of the MOA-AD, they participated merely as witnesses or, in the
case of Malaysia, as facilitator. As held in the Lom Accord case, the mere fact
that in addition to the parties to the conflict, the peace settlement is signed by
representatives of states and international organizations does not mean that the
agreement is internationalized so as to create obligations in international law. HaAIES
Since the commitments in the MOA-AD were not addressed to States, not to give
legal effect to such commitments would not be detrimental to the
security of international intercourse to the trust and confidence essential in the
relations among States.
In one important respect, the circumstances surrounding the MOA-AD are closer
to that of Burkina Faso wherein, as already discussed, the Mali President's
statement was not held to be a binding unilateral declaration by the ICJ. As in
that case, there was also nothing to hinder the Philippine panel, had it really been
its intention to be bound to other States, to manifest that intention by formal
agreement. Here, that formal agreement would have come about by the inclusion
in the MOA-AD of a clear commitment to be legally bound to the international
community, not just the MILF, and by an equally clear indication that the
signatures of the participating states-representatives would constitute an
acceptance of that commitment. Entering into such a formal agreement would not
have resulted in a loss of face for the Philippine government before the
international community, which was one of the difficulties that prevented the
French Government from entering into a formal agreement with other countries.
That the Philippine panel did not enter into such a formal agreement suggests
that it had no intention to be bound to the international community. On that
ground, the MOA-AD maynot be considered a unilateral declaration under
international law.
The MOA-AD not being a document that can bind the Philippines under
international law notwithstanding, respondents' almost consummated
act of guaranteeing amendments to the legal framework is, by itself,
sufficient to constitute grave abuse of discretion. The grave abuse lies not in
the fact that they considered, as a solution to the Moro Problem, the creation of a
state within a state, but in their brazen willingness to guarantee that Congress
and the sovereign Filipino people would give their imprimatur to their
solution. Upholding such an act would amount to authorizing a usurpation of the
constituent powers vested only in Congress, a Constitutional Convention, or the
people themselves through the process of initiative, for the only way that the
Executive can ensure the outcome of the amendment process is through an
undue influence or interference with that process. aTIAES
The sovereign people may, if it so desired, go to the extent of giving up a
portion of its own territory to the Moros for the sake of peace, for it can change
the Constitution in any it wants, so long as the change is not inconsistent with
what, in international law, is known as Jus Cogens. 184 Respondents, however, may
not preempt it in that decision.
SUMMARY
The petitions are ripe for adjudication. The failure of respondents to consult the
local government units or communities affected constitutes a departure by
respondents from their mandate under E.O. No. 3. Moreover, respondents
exceeded their authority by the mere act of guaranteeing amendments to the
Constitution. Any alleged violation ofthe Constitution by any
branch of government is a proper matter for judicial review.
As the petitions involve constitutional issues which are of paramount public
interest or of transcendental importance, the Court grants the petitioners,
petitioners-in-intervention and intervening respondents the requisite locus
standi in keeping with the liberal stance adopted in David v. Macapagal-Arroyo.
Contrary to the assertion of respondents that the non-signing of the MOA-AD and
the eventual dissolution of the GRP Peace Panel mooted the present petitions,
the Court finds that the present petitions provide an exception to the "moot and
academic" principle in view of (a) the grave violation of the Constitution involved;
(b) the exceptional character of the situation and paramount public interest; (c)
the need to formulate controlling principles to guide the bench, the bar, and the
public; and (d) the fact that the case is capable of repetition yet evading
review. EDcICT
The MOA-AD is a significant part of a series of agreements necessary to carry
out the GRP-MILF Tripoli Agreement on Peace signed by the government and
the MILF back in June 2001. Hence, the present MOA-AD can be renegotiated or
another one drawn up that could contain similar or significantly dissimilar
provisions compared to the original.
The Court, however, finds that the prayers for mandamus have been rendered
moot in view of the respondents' action in providing the Court and the petitioners
with the official copy of the final draft of the MOA-AD and its annexes.
The people's right to information on matters of public concern under Sec. 7,
Article III of the Constitution is in splendid symmetry with the state policy of full
public disclosureof all its transactions involving public interest under Sec. 28,
Article II of the Constitution. The right to information guarantees the right of the
people to demand information, while Section 28 recognizes the
duty of officialdom to give information even if nobody demands. The complete
and effective exercise of the right to information necessitates that its
complementary provision on public disclosure derive the same self-executory
nature, subject only to reasonable safeguards or limitations as may be provided
by law.HcaATE
The contents of the MOA-AD is a matter of paramount public concern involving
public interest in the highest order. In declaring that the right to information
contemplates steps and negotiations leading to the consummation of the
contract, jurisprudence finds no distinction as to the executory nature or
commercial character of the agreement.
An essential element of these twin freedoms is to keep a continuing dialogue or
process of communication between the government and the people. Corollary to
these twin rights is the design for feedback mechanisms. The right to public
consultation was envisioned to be a species of these public rights.
At least three pertinent laws animate these constitutional imperatives and justify
the exercise of the people's right to be consulted on relevant matters relating to
the peace agenda.
One, E.O. No. 3 itself is replete with mechanics for continuing consultations on
both national and local levels and for a principal forum for consensus-building. In
fact, it is the duty of the Presidential Adviser on the Peace Process to conduct
regular dialogues to seek relevant information, comments, advice, and
recommendations from peace partners and concerned sectors of society. AIHECa
Two, Republic Act No. 7160 or the Local Government Code of 1991 requires all
national offices to conduct consultations before any project or program critical to
the environment and human ecology including those that may call for the
eviction of a particular group of people residing in such locality, is implemented
therein. The MOA-AD is one peculiar program that unequivocally and unilaterally
vests ownership of a vast territory to the Bangsamoro people, which could
pervasively and drastically result to the diaspora or displacement of a great
number of inhabitants from their total environment.
Three, Republic Act No. 8371 or the Indigenous Peoples Rights Act of 1997
provides for clear-cut procedure for the recognition and delineation of ancestral
domain, which entails, among other things, the observance of the free and prior
informed consent of the Indigenous Cultural Communities/Indigenous
Peoples. Notably, the statute does not grant the Executive Department or any
government agency the power to delineate and recognize an ancestral domain
claim by mere agreement or compromise.

The invocation of the doctrine of executive privilege as a defense to the general
right to information or the specific right to consultation is untenable. The various
explicit legal provisions fly in the face of executive secrecy. In any event,
respondents effectively waived such defense after it unconditionally disclosed the
official copies of the final draftof the MOA-AD, for judicial compliance and public
scrutiny. ISCDEA
IN SUM, the Presidential Adviser on the Peace Process committed grave
abuse of discretion when he failed to carry out the pertinent consultation process,
as mandated byE.O. No. 3, Republic Act No. 7160, and Republic Act No. 8371.
The furtive process by which the MOA-AD was designed and crafted runs
contrary to and in excess of the legal authority, and amounts to a whimsical,
capricious, oppressive, arbitrary and despotic exercise thereof. It illustrates a
gross evasion of positive duty and a virtual refusal to perform the duty enjoined.
The MOA-AD cannot be reconciled with the present Constitution and laws. Not
only its specific provisions but the very concept underlying them, namely, the
associative relationship envisioned between the GRP and the
BJE, are unconstitutional, for the concept presupposes that the associated
entity is a state and implies that the same is on its way to independence.
While there is a clause in the MOA-AD stating that the provisions thereof
inconsistent with the present legal framework will not be effective until that
framework is amended, the same does not cure its defect. The
inclusion of provisions in the MOA-AD establishing an associative relationship
between the BJE and the Central Government is, itself, a violation of the
Memorandum of Instructions From The President dated March 1, 2001,
addressed to the government peace panel. Moreover, as the clause is worded, it
virtually guarantees that the necessary amendments to the Constitution and the
laws will eventually be put in place. Neither the GRP Peace Panel nor the
President herself is authorized to make such a guarantee. Upholding such an act
would amount to authorizing a usurpation of the constituent powers vested only
in Congress, a Constitutional Convention, or the people themselves through the
process of initiative, for the only way that the Executive can ensure the
outcome of the amendment process is through an undue influence or
interference with that process. ScaEIT
While the MOA-AD would not amount to an international agreement or unilateral
declaration binding on the Philippines under international law, respondents'
act ofguaranteeing amendments is, by itself, already a constitutional violation that
renders the MOA-AD fatally defective.
WHEREFORE, respondents' motion to dismiss is DENIED. The main and
intervening petitions are GIVEN DUE COURSE and hereby GRANTED.
The Memorandum of Agreement on the Ancestral Domain Aspect of the GRP-
MILF Tripoli Agreement on Peace of 2001 is declared CONTRARY TO LAW
AND THE CONSTITUTION. DTcASE
SO ORDERED.
Quisumbing, J., concurs.
Puno, C.J., please see separate concurring opinion.
Ynares-Santiago, J., see separate concurring opinion; I concur with separate
opinion of C.J. Puno.
Carpio, J., see concurring opinion.
Austria-Martinez, J., also concurs with C.J.'s separate opinion.
Corona, J., shares the dissent of Mr. Justice Tinga.
Azcuna, J., concurs in a separate opinion.
Tinga, J., dissents from the result. See separate opinion.
Chico-Nazario, Velasco, Jr., Nachura and Brion, JJ., please see dissenting
opinion.
Reyes, J., certifies that J. Reyes filed a Separate Opinion concurring with the
majority. C.J., Puno (RSP).
Leonardo-de Castro, J., please see concurring and dissenting opinion.
Separate Opinions
PUNO, C.J., concurring:
It is the duty of the government to seek a just, comprehensive and enduring
peace with any rebel group but the search for peace must always be in accord
with the Constitution. Any search for peace that undercuts the Constitution must
be struck down. Peace in breach of the Constitution is worse than worthless.
I.Historical Roots
A historical perspective of our Muslim problem is helpful.
From time immemorial, an enduring peace with our Muslim brothers and sisters
in Mindanao has eluded our grasp. Our Muslim problem exploded in
March of 1968 when Muslim trainees were massacred by army officers at
Corregidor. About 180 Muslim trainees had been recruited in the previous year
as a part of a covert force named Jabidah,1 allegedly formed to wrest away Sabah
from Malaysia. The trainees were massacred when they reportedly protested their
unbearable training and demanded the return to their home. 2 The Jabidah Massacre
fomented the formation of Muslim groups clamoring for a separate Islamic state.
One of these groups was the Muslim Independence Movement (MIM), founded by the
then Governor of Cotabato, Datu Udtog Matalam. 3 Another was the Nurul Islam, led by
Hashim Salamat.
On September 21, 1972 Martial Law was declared by President Ferdinand E.
Marcos. Among the reasons cited to justify martial law were the armed conflict
between Muslims and Christians and the Muslim secessionist movement in the
Southern Philippines. 4 The imposition of martial law drove some of the Muslim
secessionist movements to the underground. One of them was the Moro National
Liberation Front (MNLF) headed by Nur Misuari. In 1974, the MNLF shot to prominence,
when the Organization of Islamic Conference (OIC) officially gave it recognition. During
the 5th ICFM, they strongly urged "the Philippines Government to find a political and
peaceful solution through negotiation with Muslim leaders, particularly with
representatives of the MNLF in order to arrive at a just solution to the plight of the
Filipino Muslims within the framework of national sovereignty and territorial
integrity of the Philippines"; and recognized "the problem as an internal problem with the
Philippine Government to ensure the safety of the Filipino Muslims and the
preservation of their liberties in accordance with the Universal Declaration of Human
Rights". 5 ECTAHc
In December 1976, the Philippine government and the MNLF under the
auspices of the OIC started their peace negotiation in Tripoli, Libya. It bore its
first fruit when on January 20, 1977, the parties signed the Tripoli Agreement in
Zamboanga City in the presence of the OIC Representative.
President Marcos immediately implemented the Tripoli Agreement. He issued
Presidential Proclamation No. 1628, "Declaring Autonomy in Southern
Philippines". A plebiscite was conducted in the provinces covered under the
Tripoli Agreement to determine the will of the people thereat. Further, the
legislature enacted Batasang Pambansa Blg. 20, "Providing for the
Organization of Sangguniang Pampook (Regional Legislative Assembly) in
Each of Regions IX and XII". President Marcos then ordered the
creation ofAutonomous Region IX and XII.
In the meanwhile, the MNLF continued enhancing its international status. It was
accorded the status of an observer in Tripoli, Libya during the 8th ICFM. In the
15th ICFM at Sana'a, Yemen, in 1984, the MNLF's status was further elevated
from a mere 'legitimate representative' to 'sole legitimate representative' of the
Bangsamoro people. 6
In April 1977, the peace talks between the Government of the Republic of the
Philippines (GRP) and MNLF Talks collapsed. Schism split the MNLF
leadership. The irreconcilable differences between Nur Misuari and Hashim
Salamat led to the formation of the Moro Islamic Liberation Front (MILF),
headed by Hashim Salamat. Thus, the Maguindanao-led MILF, parted ways
with the Tausug-led MNLF. HCSEcI
In 1986, the People Power Revolution catapulted Corazon C. Aquino to the
Presidency. Forthwith, she ordered the peace talks with the MNLF to resume.
The 1987 Constitution was ratified by the people. It provided for the
creation of the Autonomous Region of Muslim Mindanao through an
act of Congress. But again the talks with the MNLF floundered in May 1987. 7 Be
that as it may, it was during President Aquino's governance that a culture of peace
negotiations with the rebellious MNLF and MILF was cultivated. 8 Thus, the
Autonomous Region of Muslim Mindanao (ARMM) was created through Republic Act
No. 6734. The law took effect on August 1, 1989.
Then came the presidency of President Fidel V. Ramos. He issued on
September 15, 1993, Executive Order No. 125 (E.O. 125) which provided for a
comprehensive, integrated and holistic peace process with the Muslim rebels.
E.O. 125 created the Office of the Presidential Adviser on the Peace Process to
give momentum to the peace talks with the MNLF.
In 1996, as the GRP-MNLF peace negotiations were successfully winding down,
the government prepared to deal with the MILF problem. Formal peace talks
started on Januaryof 1997, towards the end of the Ramos administration. The
Buldon Ceasefire Agreement was signed in July 1997 9 but time ran out for the
negotiations to be completed.
President Joseph Estrada continued the peace talks with the MILF. The talks,
however, were limited to cessation of hostilities and did not gain any headway.
President Estrada gave both sides until December 1999 to finish the peace
process. 10 They did not meet the deadline. The year 2000 saw the
escalation of acts of violence and the threats to the lives and security of civilians in
Southern Mindanao. President Estrada then declared an "all-out war" against the
MILF. 11 He bowed out of office with the "war" unfinished.
Thereafter, President Gloria Macapagal Arroyo assumed office. Peace
negotiations with the MILF were immediately set for resumption. Executive Order
No. 3 was issued "Defining Policy and Administrative Structure: For
Government's Comprehensive Peace Efforts". On March 24, 2001, a General
Framework for the Resumption of Peace Talks between the GRP and the MILF
was signed. Republic Act No. 9054 12 was also enacted on March 31, 2001 and took
effect on August 14, 2001 to strengthen and expand the Autonomous Region of Muslim
Mindanao. Through the Organic Act of 2001, six municipalities in Lanao del Norte voted
for inclusion in the ARMM.

On June 22, 2001, the ancestral domain aspect of the GRP-MILF Tripoli
Agreement was signed in Libya. Several rounds of exploratory talks with the
MILF followed. Unfortunately, on April 2, 2003, Davao was twice bombed. Again,
the peace talks were cancelled and fighting with the MILF resumed. On July 19,
2003 the GRP and the MILF agreed on "mutual cessation of hostilities" and the
parties returned to the bargaining table. The parties discussed the
problem of ancestral domain, divided into four strands: concept, territory,
resources, and governance. cASIED
On February 7, 2006, the 10th round of Exploratory Talks between the GRP and
the MILF ended. The parties issued a joint statement of the consensus
points of the Ancestral Domain aspect of GRP-MILF Tripoli Agreement on
Peace of June 22, 2001. The Joint Statement provides that:
"Among the consensus points reached were:
Joint determination of the scope of the Bangsamoro homeland
based on the technical maps and data submitted by both
sides; EDSHcT
Measures to address the legitimate grievances of the
Bangsamoro people arising from the unjust dispossession
and/or marginalization;
Bangsamoro people's right to utilize and develop their
ancestral domain and ancestral lands;
Economic cooperation arrangements for the benefit of the
entire Bangsamoro people."
On July 27, 2008, a Joint Statement on the Memorandum of Agreement on
Ancestral Domain (MOA-AD) was signed by Chairperson Rodolfo C. Garcia on
behalf of theGRP Peace Panel, and Mohagher Iqbal on behalf of the MILF Panel.
In the Joint Statement, it was declared that the final draft of the MOA-AD has
already been initialed. It was announced that "both sides reached a consensus
to initial the final draft pending its official signing by the Chairmen of the two
peace panels in early August 2008, in Putrajaya, Malaysia." 13
The Joint Statement triggered the filing of the petitions at bar. These Petitions,
sought among others, to restrain the signing of the MOA-AD. On August 4, 2008,
a day before the intended signing of the initialed MOA-AD, this Court issued a
Temporary Restraining Order stopping the signing of the MOA-AD. Several
petitions-in-intervention were also filed praying for the same relief. On August 8,
2008 and September 1, 2008, the respondents through the Solicitor General,
submitted official copies of the initialed MOA-AD to the Court and furnished the
petitioners and petitioners-in-intervention with copies of the same.
All the petitions were heard by the Court in three separate days of oral
arguments. In the course of the arguments, the Solicitor General informed the
Court that the MOA-AD will not be signed "in its present form or any other
form". 14 Thereafter, the government Peace Panel was dismantled by the President.
II.Petitions should be Decided on the Merits
The first threshold issue is whether this Court should exercise its power of judicial
review and decide the petitions at bar on the merits.
I respectfully submit that the Court should not avoid its constitutional duty to
decide the petitions at bar on their merit in view of their transcendental
importance. The subjectof review in the petitions at bar is the conduct of the
peace process with the MILF which culminated in the MOA-AD. The
constitutionality of the conduct of the entirepeace process and not just the MOA-
AD should go under the scalpel of judicial scrutiny. The review should not be
limited to the initialed MOA-AD for it is merely the productof a constitutionally
flawed process of negotiations with the MILF. HEDSCc
Let us revisit the steps that led to the contested and controversial MOA-AD.
Peace negotiations with the MILF commenced with the execution of ceasefire
agreements. The watershed event, however, occurred in 2001, with the
issuance of Executive Order No. 3 15 entitled "Defining Policy and Administrative
Structure for Government's Comprehensive Peace Efforts". Government Peace
Negotiating Panels were immediately constituted to negotiate peace with rebel groups,
which included the MILF. Significantly,Executive Order No. 3 provides that in the
pursuit of social, economic and political reforms, administrative action, new
legislation or even constitutional amendments may be required. 16 Section
4 of Executive Order No. 3 states, viz.:
SEC. 4.The Six Paths to Peace. The components of the
comprehensive peace process comprise the processes known as the
"Paths to Peace". These component processes are interrelated and not
mutually exclusive, and must therefore be pursued simultaneously in a
coordinated and integrated fashion. They shall include, but may not be
limited to, the following:
a.PURSUIT OF SOCIAL, ECONOMIC AND POLITICAL
REFORMS. This component involves the vigorous
implementation of various policies, reforms, programs and
projects aimed at addressing the root causes of internal armed
conflicts and social unrest. This may require administrative
action, new legislation or even constitutional amendments.
xxx xxx xxx
c.PEACEFUL, NEGOTIATED SETTLEMENT WITH THE
DIFFERENT REBEL GROUPS. This component involves the
conduct of face-to-face negotiations to reach peaceful settlement
with the different rebel groups. It also involves the effective
implementation of peace agreements. (Emphasis supplied) HSAcaE
Executive Order No. 3 was later amended by E.O. No. 555, 17 and was followed by
the Tripoli Peace Agreement of 2001. The Tripoli Peace Agreement of 2001 became the
basis for several rounds of exploratory talks between the GRP Peace Panel and the
MILF. These exploratory talks resulted in the signing of the Joint
Statements of the GRP and MILF peace panels to affirm commitments that implement
the Tripoli Agreement of 2001, including the ancestral domain aspect. The
issuance of the Joint Statements culminated in the initialing of the MOA-AD. 18
It is crystal clear that the initialing of the MOA-AD is but the evidence of the
government peace negotiating panel's assent to the terms contained therein. If
the MOA-AD is constitutionally infirm, it is because the conduct of the
peace process itself is flawed. It is the constitutional duty of the Court is to
determine whether there has been a grave abuse of discretion amounting to lack
or excess of jurisdiction on the part of the government peace negotiating panel in
the conduct of the peace negotiations with the MILF. The Court should not
restrict its review on the validity of the MOA-AD which is but the end
product of the flawed conduct of the peace negotiation with the MILF.
Requirements of Ripeness and
Mootness are not bars to review
In contending that this Court should refrain from resolving the merits of the
petitions at bar, two principal defenses were deployed by the Solicitor General:
the issues raised for resolution are not ripe for adjudication and
regardless of their ripeness, are moot.
With due respect, the defenses cannot be sustained. To contend that an issue is
not ripe for adjudication is to invoke prematurity; 19 that the issue has not reached a
state where judicial intervention is necessary, hence, there is in reality no actual
controversy. On the other hand, to urge that an issue has become moot concedes that
judicial intervention was once proper but subsequent developments make further
judicial action unnecessary. Together, mootness and ripeness act as a two-pronged
pincer, squeezing the resolution of controversies within a narrow timeframe. 20
First, the issues at bar are ripe for resolution. In Ohio Forestry Ass'n., Inc.
v. Sierra Club, 21 the following factors were identified as indicative of the ripeness of a
controversy: IASEca
1.Whether delayed review would cause hardship to the plaintiffs;
2.Whether judicial intervention would inappropriately interfere with
further administrative action;
3.Whether the Court would benefit from further factual
development of the issues presented;
Underlying the use of the foregoing factors is first, the setting of a threshold for
review and second, judicial application of the threshold to the facts extant in a
controversy. I respectfully submit that where a controversy concerns
fundamental constitutional questions, the threshold must be adjusted to
allow judicial scrutiny, in order that the issues may be resolved at the earliest
stage before anything irreversible is undertaken under cover of an
unconstitutional act. Schwartz cites one vital consideration in determining
ripeness, viz.:
In dealing with ripeness, one must distinguish between statutes and
other acts that are self-executing and those that are not. If a statute
is self executing, it is ripe for challenge as soon as it is enacted. For
such a statute to be subject to judicial review, it is not necessary that it
be applied by an administrator, a prosecutor, or some other enforcement
officer in a concrete case. 22
Although Schwartz employs the term "statute", he qualifies that the principle
enunciated applies to other governmental acts as well. 23
Prescinding from these parameters, it is evident that the Court is confronted
with a MOA-AD that is heavily laden with self-executing components. Far
from the representation of the Solicitor General, the MOA-AD is not a mere
collection of consensus points, 24 still bereft of any legal consequence. The
commitments made by the government panel under the MOA-AD can be divided into (1)
those which are self-executory or are immediately effective by the terms of the MOA-
AD alone, (2) those with a period or which are to be effective within a stipulated time,
and (3) those that are conditional or whose effectivity depends on the outcome of a
plebiscite.
Let us cast an eye on the self executory provisions of the MOA-AD which will
demolish the argument of the respondents that the issues in the petitions at bar
are not ripe for adjudication. CaDEAT
The MOA-AD provides that "the Parties affirm that the core of the BJE shall
constitute the present geographic area of the ARMM, including the
municipalities of Baloi, Munai, Nunungan, Pantar, Tagoloan and Tangkal in
the province of Lanao del Norte that voted for inclusion in the ARMM during the
2001 plebiscite".

The MOA-AD then proceeds to enumerate the powers that the BJE possesses
within its area. The BJE is granted powers of governance which it can exercise
without need ofamendments to be made to the Constitution or existing law or
without imposing any condition whatsoever.
The MOA-AD also gives the BJE the unconditional right to participate in
international meetings and events, e.g., ASEAN meetings and other specialized
agencies of the United Nations. 26 It grants BJE the right to participate in Philippine
official missions and delegations that are engaged in the negotiation of border
agreements or protocols for environmental protection, equitable sharing of incomes and
revenues, in addition to those of fishing rights. 26 Again, these rights are given to the
BJE without imposing prior conditions such as amendments to the Constitution, existing
law or the enactment of new legislation.
Next, let us go to provisions of the MOA-AD with a period which will further
demonstrate the lack of merit of respondents' posture that the petitions at bar are
not ripe for adjudication. The MOA-AD provides that "without derogating from the
requirements of prior agreements, 27 the Government stipulates to conduct and
deliver, within twelve (12) months following the signing of the
Memorandum of Agreement on Ancestral Domain, a plebiscite covering the areas as
enumerated in the list and depicted in the map as Category A . . . the Parties shall
endeavor to complete negotiations and resolve all outstanding issues on the
Comprehensive Compact within fifteen (15) months from signing of the MOA-
AD". 28 Once more, it is evident that no conditions were imposed with respect to the
conduct of a plebiscite within twelve months following the signing of the MOA-AD. The
provision starkly states that within twelve months, the government will conduct and
deliver a plebiscite covering areas under Category A of the MOA-AD.
We now come to respondents' argument on mootness. In determining whether a
case has been rendered moot, courts look at the development of events to
ascertain whether the petitioner making the constitutional challenge is confronted
with a continuing harm or a substantial potential of harm. Mootness is
sometimes viewed as "the doctrine of standing set in a time frame: The requisite
personal interest must exist at the commencement of the litigation and must
continue throughout its existence". 29Stated otherwise, an actual controversy must
be extant at all stages of judicial review, not merely at the time the complaint is
filed. 30 cDTaSH
Respondents insist that the petitions at bar are moot for three reasons: (1) the
petitioners North Cotabato and Zamboanga have already been furnished
copies of the MOA-AD; (2) the Executive Secretary has issued a Memorandum
that the government will not sign the MOA-AD and, (3) the GRP Peace Panel has
been dissolved by the President.
These grounds are barren grounds. For one, the press statements of the
Presidential Adviser on the Peace Process, Gen. Hermogenes Esperon, Jr., are
clear that the MOA-AD will still be used as a major reference in future
negotiations. 31 For another, the MILF considers the MOA-AD a "done deal", 32 hence,
ready for implementation. On the other hand, the peace panel may have been
temporarily dismantled but the structures set up by the Executive and their guidelines
which gave rise to the present controversy remain intact. With all these realities, the
petitions at bar fall within that exceptional class of cases which ought to be
decided despite their mootness because the complained unconstitutional acts
are "capable of repetition yet evading review". 33
This well-accepted exception to the non-reviewability of moot cases was
first enunciated in the case of Southern Pacific Terminal Co. v. ICC. 34 The
United States Supreme Court held that a case is not moot where interests of a public
character are asserted under conditions that may be immediately repeated, merely
because the particular order involved has expired.
In the petitions at bar, one need not butt heads with the Solicitor General to
demonstrate the numerous constitutional infirmities of the MOA-AD. There is no
need to iterate and reiterate them. Suffice to stress that it is because of these
evident breaches, that the MOA-AD requires the present Constitution to undergo
radical revisions. Yet, the unblushing threat is made that the MOA-AD which
shattered to smithereens all respect to the Constitution will continue to be a
reference point in future peace negotiations with the MILF. In fine, the MOA-AD
is a constitutional nightmare that will come and torment us again in the near
future. It must be slain now. It is not moot.
Let us adhere to the orthodox thought that once a controversy as to the
application of a constitutional provision is raised before this Court, it becomes a
legal issue which the Court is hide-bound to decide. 35 Supervening events,
whether contrived or accidental, cannot prevent the Court from rendering a decision if
there is a grave violation of the Constitution has already been committed or the
threat of being committed again is not a hypothetical fear. 36 It is the function of judicial
review to uphold the Constitution at all cost or we forfeit the faith of the people.
III.The Deviation from the MNLF Model of Pursuing Peace with Rebels is
Inexplicable
The MNLF model in dealing with rebels which culminated in the Peace
Agreement of 1996, was free from any infirmity because it respected the metes
and bounds of the Constitution. While the MNLF model is ostensibly based on
the Tripoli Agreement of 1976, its implementation was in perfect accord with
Philippine laws. The implementationof the Tripoli Agreement of 1976 came in two
phases: the first, under the legislative power of then President Marcos and the
second, under the provisions of Article X of the1987 Constitution and its
implementing legislation, Republic Act No. 6734. 37 aACHDS
Under President Marcos, autonomy in the affected provinces was recognized
through Presidential Proclamation No. 1628. It declared autonomy in
13 provinces and constituted a provisional government for the affected areas.
The proclamation was followed by a plebiscite and the final framework for the
autonomous region was embodied in Presidential Decree No. 1618.
The establishment of the autonomous region under P.D.
1628 was constitutionalized by the commissioners in the 1987
Constitution as shown by the following exchangeof views:
MR. ALONTO:
Madam President, I have stated from the start of our
consideration of this Article on Local Governments that the
autonomous region exists now in this country. There is a de facto
existence of an autonomous government in what we call now
Regions IX and XII. Region IX is
composed of the provinces of Tawi-Tawi, Sulu, Basilan,
Zamboanga City, Zamboanga del Sur and Zamboanga del Norte,
including all the component cities in the provinces. Region XII is
composed of theProvinces of Lanao del Norte, Lanao del Sur,
Maguindanao, Sultan Kudarat and North Cotabato. This
autonomous region has its central governmental headquarters in
Zamboanga City for Region IX and in Cotabato City for Region
XII. In fact, it is stated by Commissioner Ople that it has an
executive commission and a legislative assembly.
MR. DE CASTRO:
Madam President.
MR. ALONTO:
These two regions have been organized by virtue of P.D. No.
1618 of President Marcos, as amended by P.D. No. 1843.
MR. DE CASTRO:
Madam President.
MR. ALONTO:
If the Gentleman will bear with me, I will explain to him. That is why there
is a de facto autonomous government existing in Mindanao DHaEAS
MR. DE CASTRO:
Madam President.
THE PRESIDENT:
May we please allow Commissioner Alonto to finish his remarks before
any interruption?
MR. DE CASTRO:
Yes Madam President.
MR. ALONTO:
Madam President, this autonomous region is recognized by the present
regime for the very reason that the present regime is now in the
process of a negotiation with the Moro National Liberation Front.
In a way, what we are doing is to give constitutional basis for the
President of this country today to proceed with the negotiation
with the Moro National Liberation Front.
THE PRESIDENT:
Commissioner Uka is recognized.
MR. UKA:
Madam President, not only that. President Corazon C. Aquino has
appointed Mr. Albert Tugum as the Chairman of Region IX and
Mr. Datu Zakaria Candau as chairman of Region XII. They are
doing their work well right now. So there are two recognized
autonomous regions. They have also a complete regional
assembly as the legislative body. So, it is only a matter of putting
this in the Constitution.
THE PRESIDENT:
So, what is before the body is the proposed amendment on Line
11 of Section 1. DcSEHT
Commissioner de Castro is recognized.
MR. DE CASTRO:
Madam President, if there is now an autonomous region in Mindanao
and if, according to the Honorable Ople, this has the
recognition of the central government, what then is the
use of creating autonomous regions in Muslim Mindanao and
going through the process of a plebiscite and enacting an organic
act?
My amendment is simply to clarify the term "Muslim Mindanao". I really
did not expect that this will go this far that it is being placed in
the Constitution, that it is a fait accompli and that all we have to
do here is say "amen" to the whole thing and it we do not say
"amen", they will still continue to be autonomous regions. I insist
on my amendment, Madam President.
MR. OPLE:
May I provide more information to Commissioner de Castro on this
matter.
First of all, we have to correct the misimpression that the autonomous
regions, such as they now exist in Mindanao, do not enjoy the
recognition of the central government. Secondly, may I point out
that the autonomy existing now in Regions IX and XII is a very
imperfect kind of autonomy. We are not satisfied with the legal
sufficiency of these regions as autonomous regions and that is
the reason the initiative has been taken in order to guarantee by
the Constitution the right to autonomy of the people embraced in
these regions and not merely on the sufferance of any existing or
future administration. It is a right, moreover, for which they have
waged heroic struggles, not only in this generation but in previous
eras and, therefore, what we seek is constitutional
permanence for this right. cHCIDE

May I also point out, Madam President, that the Tripoli Agreement was
negotiated under the aegis of foreign powers. No matter how
friendly and sympathetic they are to our country, this is under the
aegis of the 42-nation Islamic Conference. Should our brothers
look across the seas to a conclave of foreign governments so that
their rights may be recognized in the Constitution? Do they have
to depend upon foreign sympathy so that their right can be
recognized in final, constitutional and durable form.
THE PRESIDENT:
Commissioner Ople, the consensus here is to grant autonomy to the
Muslim areas of Mindanao?
MR. OPLE:
Yes. (Emphasis supplied) 38
Clearly, the mandate for the creation of the ARMM is derived principally
from the 1987 Constitution. Thereafter, ARMM was given life by Republic Act
No. 6734, 39 the Organic Act of the ARMM. Our executive officials were guided by and
did not stray away from these legal mandates at the negotiation and execution of the
Peace Agreement with the MNLF in 1996. Without ifs and buts, its Whereas Clauses
affirmed our sovereignty and territorial integrity and completely respected our
Constitution. 40
In stark contrast, the peace process with the MILF draws its mandate
principally from Executive Order No. 3. This executive order provided the
basis for the execution of the Tripoli Agreement of 2001 and thereafter, the MOA-
AD. During the whole process, the government peace negotiators
conducted themselves free from the strictures of the Constitution. They
played fast and loose with the do's and dont's of the Constitution. They acted as
if the grant of executive power to the President allows them as agents to make
agreements with the MILF in violation of the Constitution. They acted as if these
violations can anyway be cured by committing that the sovereign people will
change the Constitution to conform with the MOA-AD. They forgot that the
Constitution grants power but also sets some impotence on power.
IV.The Exercise of Executive Power is Subject to the Constitution
Clearly, the respondents grossly misunderstood and patently misapplied the
executive powers of the President.
The MILF problem is a problem of rebellion penalized under the Revised Penal
Code. 41 The MILF is but a rebel group. It has not acquired any belligerency status. The
rebellion ofthe MILF is recognized expressly by E.O. No. 3 42 as well as by E.O. No.
555. 43 The President's powers in dealing with rebellion are spelled out in Article VII,
section 18 of the Constitution, viz.:
The President shall be the Commander-in-Chief of all armed
forces of the Philippines and whenever it becomes necessary, he may
call out such armed forces to prevent or suppress lawless violence,
invasion or rebellion. In case of invasion or rebellion, when the public
safety requires it, he may, for a period not exceeding sixty days,
suspend the privilege of the writ of habeas corpus or place the
Philippines or any part thereof under martial law. Within forty-eight hours
from the proclamation of martial law or the suspension of the
privilege of the writ of habeas corpus, the President shall submit a report
in person or in writing to the Congress. The Congress, voting jointly, by a
vote of at least a majority of all its Members in regular or special session,
may revoke such proclamation or suspension, which revocation shall not
be set aside by the President. Upon the initiative of the President, the
Congress may, in the same manner, extend such proclamation or
suspension for a period to be determined by the Congress, if the
invasion or rebellion shall persist and public safety requires it. ACIDTE
The Congress, if not in session, shall, within twenty-four hours following
such proclamation or suspension, convene in accordance with its rules
without need of a call.
The Supreme Court may review, in an appropriate proceeding filed by
any citizen, the sufficiency of the factual basis of the
proclamation of martial law or the suspension of the privilege of the
writ of habeas corpus or the extension thereof, and must promulgate its
decision thereon within thirty days from its filing.
A state of martial law does not suspend the operation of the Constitution,
nor supplant the functioning of the civil courts or legislative assemblies,
nor authorize the conferment of jurisdiction on military courts and
agencies over civilians where civil courts are able to function, nor
automatically suspend the privilege of the writ ofhabeas corpus.
The suspension of the privilege of the writ of habeas corpus shall apply
only to persons judicially charged for rebellion or offenses inherent in, or
directly connected with, invasion.
During the suspension of the privilege of the writ of habeas corpus, any
person thus arrested or detained shall be judicially charged within three
days, otherwise he shall be released. TcSICH
These are the well crafted commander-in-chief powers of the President. They
enumerate with exactitude the powers which the President should use in
dealing with rebellion. They are graduated in degrees. The strongest of these
powers is the power to declare martial law and worthy to note, its exercise is
subject to restraints. But more important, all these commander-in-chief
powers can only be used to quell the rebellion. They cannot be utilized to
dismember the State or to create a state within our State and hand it over to
the MILF rebels.
In dealing with the MILF rebellion, the President may, however, opt not to
use force but negotiate peace with the MILF. Undoubtedly, the President as
Chief Executive can negotiate peace with rebels, like the MILF. Article VII,
section 1 of the Constitution vests in the President the entire
panoply of executive power, to reach peace with rebels. But undoubtedly too,
the exercise of executive power to secure peace with rebels is limited by
the Constitution. aTICAc
All these are due to the preeminent principle that our government is
fundamentally one of limited and enumerated powers. As well stated in Angara
v. Electoral Commission, 44 viz.:
But in the main, the Constitution has blocked out with deft strokes and in
bold lines, allotment of power to the executive, the legislative and the
judicial departmentsof the government. The overlapping and
interlacing of functions and duties between the several departments,
however, sometimes makes it hard to say just where the one leaves off
and the other begins. In times of social disquietude or political
excitement, the great landmarks of the Constitution are apt to be
forgotten or marred, if not entirely obliterated. In cases of conflict, the
judicial department is the only constitutional organ which can be called
upon to determine the proper allocation of powers between the several
departments and among the integral or constituent units thereof.
In fine, there is no power in the Constitution that can run riot. There is no power
in the Constitution that is unbounded. There is no power in the Constitution that
can be exercised if it will destroy the Constitution. For all powers in the
Constitution are designed to preserve the Constitution.
In other words, the President as Chief Executive can negotiate peace with the
MILF but it is peace that will insure that our laws are faithfully executed. The
President can seek peace with the MILF but without crossing the
parameters of powers marked in the Constitution to separate the other
branches of government to preserve our democracy. For even in times of war,
our system of checks and balances cannot be infringed. 45 More so in times where
the only danger that faces the State is the lesser danger of rebellion.
Needless to stress, the power of the President to negotiate peace with the MILF
is not plenary. While a considerable degree of flexibility and breadth is accorded
to the peace negotiating panel, the latitude has its limits the Constitution. The
Constitution was ordained by the sovereign people and its postulates may not be
employed as bargaining chips without their prior consent.
V.The Constitution as Compact of the People
The question may be asked: In the process of negotiating peace with the MILF,
why cannot the Executive commit to do acts which are prohibited by the
Constitution and seek their ratification later by its amendment or revision?
Many philosophical perspectives have been advanced in reply to this question.
Yet, no theory has been as influential, nor has been as authoritative, as the
social contract theory, 46 articulated by John Locke, viz.:
For when any number of men have, by the consent of every individual,
made a community, they have thereby made that community one body,
with a power to act as one body, which is only by the will and
determination of the majority: for that which acts any community, being
only the consent of the individuals of it, and it being necessary to that
which is one body to move one way; it is necessary the body should
move that way whither the greater force carries it, which is the
consent of the majority: or else it is impossible it should act or continue
one body, one community, which the consent of every individual that
united into it, agreed that it should; and so every one is bound by that
consent to be concluded by the majority. And therefore we see, that in
assemblies, empowered to act by positive laws, where no number is set
by that positive law which empowers them, the act of the majority passes
for the act of the whole, and of course determines, as having, by the
law ofnature and reason, the power of the whole. 47 AcSHCD
The French philosopher, Jean Jacques Rosseau stressed the non-
derogability of this social contract, viz.:
But the body politic or sovereign, deriving its existence only from the
sanctity of the contract, can never bind itself, even to others, in anything
that derogates from the original act, such as alienation of some
portion of itself, or submission to another sovereign. To violate the act by
which it exists would be to annihilate itself; and what is nothing produces
nothing. 48

Dean Vicente Sinco of the U.P. College of Law articulated these precepts in
his seminal work, Philippine Political Law, viz.:
As adopted in our system of jurisprudence a constitution is a written
instrument which serves as the fundamental law of the state. In theory, it
is the creation of the will of the people, who are deemed the source of all
political powers. It provides for the organization of the essential
departments of government, determines and limits their powers, and
prescribes guarantees to the basic rights of the individual. 49
xxx xxx xxx
Some authorities have also considered the constitution as a compact, an
"agreement of the people, in their individual capacities, reduced to
writing, establishing and fixing certain principles for the
government of themselves". This notion expresses the old theory of the
social contract obligatory on all parties and revocable by no one
individual or group less than the majority of the people; otherwise it will
not have the attribute of law. 50 (Emphasis supplied) aETASc
In sum, there is no power nor is there any right to violate the Constitution
on the part of any official of government. No one can claim he has a blank
check to violate the Constitution in advance and the privilege to cure the
violation later through amendment of its provisions. Respondents'
thesis of violate now, validate later makes a burlesque of the Constitution.
I vote to grant the petitions.
YNARES-SANTIAGO, J ., concurring:
I join the majority opinion and concur in the views expressed in the ponencia.
More particularly, I register my agreement in prohibiting respondents and their
agents from signing and executing the Memorandum of Agreement on Ancestral
Domain (MOA-AD), or any similar instruments. The said MOA-AD contains
provisions which are repugnant to the Constitution and which will result in the
virtual surrender of part of the Philippines' territorial sovereignty, which our
people has spent decades fighting for and which scores of men in uniform have
valiantly defended.
While the ponencia exhaustively discusses the grounds upon which the Court
must invalidate and strike down the many questionable provisions of the MOA-
AD, I wish to add some important points which, I hope, will serve to further
highlight and underscore the serious constitutional flaws in the MOA-AD.
Only after certain quarters took notice and raised a clamor, and only after this
Court has issued a temporary restraining order enjoining the signing of the MOA-
AD, did respondents, through the Office of the Solicitor General and the
Executive Secretary, openly declare that the MOA-AD or any similar instrument
will not be signed by the GRP. On this basis, respondents assert that the
petitions have become moot and academic. This, to my mind, was a mere
afterthought. For were it not for the timely exposure ofthe MOA-AD in the public
light, the signing thereof would have gone ahead as planned. aHDTAI
Furthermore, respondents' protestations that the petitions have become moot
and academic in view of the disclosure and non-signing of the MOA-AD is
unavailing, as it is well-recognized that mootness, as a ground for dismissal of a
case, is subject to certain exceptions. In David v. Pres. Arroyo, 1 we held that the
Court will decide cases, otherwise moot and academic, if: (1) there is a grave
violation of the Constitution; (2) the situation is exceptional in character and paramount
public interest is involved; (3) the constitutional issues raised requires
formulation of controlling principles to guide the bench, the bar and the public; and (4)
the case is capable of repetition yet evading review. To my mind, all ofthese
circumstances are present in the cases at bar.
It is beyond cavil that these petitions involve matters that are of paramount public
interest and concern. As shown by recent events, the MOA-AD has spawned
violent conflicts in Mindanao and has polarized our nation over its real import and
effects. The controversy over the agreement has resulted in unnecessary
loss of lives, destruction ofproperty and general discord in that part of our
country. Strong reasons of public policy and the importance of these cases to the
public demands that we settle the issues promptly and definitely, brushing aside,
if we must, technicalities of procedure.
The petitions also allege that the GRP panel committed grave violations of the
Constitution when it negotiated and agreed to terms that directly contravene the
fundamental law. The basic issue which emerged from all the assertions of the
parties is not only whether the MOA-AD should be disclosed or signed at all but,
more significantly, whether the GRP panel exceeded its powers in negotiating an
agreement that contains unconstitutional stipulations. Considering that it has
been widely announced that the peace process will continue, and that a new
panel may be constituted to enter into similar negotiations with the MILF, it is
necessary to resolve the issue on the GRP panel's authority in order to establish
guiding and controlling principles on its extent and limits. By doing so, a
repetition of the unfortunate events which transpired in the wake of the MOA-AD
can hopefully be avoided.
There is also the possibility that an agreement with terms similar to the MOA-AD
may again be drafted in the future. Indeed, respondents cannot prevent this
Court from determining the extent of the GRP panel's authority by the simple
expedient of claiming that such an agreement will not be signed or that the peace
panel will be dissolved. There will be no opportunity to finally the settle the
question of whether a negotiating panel can freely stipulate on terms that
transgress our laws and our Constitution. It can thus be said that respondents'
act of negotiating a peace agreement similar to the MOA-AD is
capable of repetition yet evading review. 2 DAEIHT
The ultimate issue in these cases is whether the GRP panel went beyond its
powers when it negotiated terms that contravene the Constitution. It is claimed
that the panel stipulated on matters that were outside of its authority and under
the exclusive prerogative of Congress. In other words, the constitutional as well
as legal limits of executive authority in the drafting of a peace agreement have
been squarely put in issue. This involves a genuine constitutional question that
the Court has the right and duty to resolve.
Respondents insist that it is not necessary to discuss the constitutionality of each
provision of the MOA-AD, because the latter is but a codification of consensus
points which creates no rights and obligations between the parties. The MOA-AD
allegedly has no legal effects, even if it is signed, because it is merely a
preliminary agreement whose effectivity depends on subsequent legal processes
such as the formulation of a Comprehensive Compact, the holding of a plebiscite,
the amendment of laws by Congress as well as constitutional amendments.
Consequently, it would be premature for the Court to pass upon the constitutional
validity of the MOA-AD since it is neither self-executory nor is it the final peace
agreement between the GRP and MILF.
A reading of the MOA-AD shows that its pertinent provisions on the basic
concepts, territory, resources and governance of the Bangsamoro Juridical Entity
(BJE) have been made to depend for its effectivity on "changes to the legal
framework". Paragraph 7 on the provisions on Governance states:
7.The parties agree that the mechanisms and modalities for the actual
implementation of this MOA-AD shall be spelt out in the Comprehensive
Compact to mutually take such steps to enable it to occur effectively. EADSIa
Any provisions of the MOA-AD requiring amendments to the existing
legal framework shall come into force upon signing of a Comprehensive
Compact and upon effecting the necessary changes to the legal
framework with due regard to non-derogation of prior
agreements and within the stipulated timeframe to be contained in the
Comprehensive Compact.
The provisions of the MOA-AD which require "amendments to the existing legal
framework" include practically all the substantive terms of the document. It is not
difficult to foresee that the material provisions of the MOA-AD will require either
an amendment to the Constitution or to existing laws to become legally effective.
Some of the required constitutional or statutory amendments are the following:
a)Article I, Section 1 3 of the Constitution has to be amended to
segregate the BJE territory from the rest of the Republic of the
Philippines, as the MOA-AD delineates the Bangsamoro homeland
under its paragraph 1 4 on Territory;
b)Section 1, Article X 5 of the Constitution will have to include the BJE as
among the five kinds of political subdivisions recognized under the
fundamental law. The provision of an Autonomous Region for Muslim
Mindanao (ARMM) will also have to be removed as the same is
incorporated in the BJE per paragraph 2.c 6 of the MOA-AD provisions
on Territory;
c)The provision in Section 15, Article X 7 of the Constitution which
declares the creation of the ARMM "within the framework of this
Constitution and the national sovereignty as well as territorial
integrity of the Republic of the Philippines" must also be changed since
there is no provision in the MOA-AD that subjects the BJE to the
authority, territory and sovereignty of the Republic of the Philippines; aTICAc
d)Section 16, Article X 8 of the Constitution which gives the President
power to supervise autonomous regions will have to be amended since
the MOA-AD does not provide for such supervision over the BJE;
e)Section 18, Article X 9 of the Constitution which requires personal,
family and property laws of autonomous regions to comply with the
Constitution and laws will have to be changed as the MOA-AD grants the
BJE the power to make its own laws;
f)An overhaul of the various constitutional provisions relating to the
Executive, Judicial and Legislative Departments as well as the
independent constitutional commissions must be undertaken to
accommodate paragraph 8 10 of the MOA-AD provision on Governance
which grants the BJE the power to create its own civil institutions;

g)Section 3, Article II of the Constitution which declares the Armed
Forces of the Philippines as protector of the people and the State will
have to be changed because the MOA-AD provides that the BJE shall
have its own internal security force 11 and the AFP will only defend the
Bangsamoro homeland against external aggression; 12 aIcHSC
h)Section 2, Article XII 13 of the Constitution must be changed to allow
the BJE to manage, explore, develop, and utilize the natural resources
within the Bangsamoro territory, pursuant to paragraphs 2.f, 14 g
(1) 15 and h 16 on Territory and paragraphs 1 17 and 2 18 on
Resources of the MOA-AD;
i)Section 21, Article VII 19 of the Constitution has to be amended to
exempt the BJE from the ratification requirements of treaties and
international agreements since it is given the power to enter into its own
economic and trade agreements with other countries;
j)The Bangsamoro homeland will have to be exempted from the
power of the President to exercise general supervision of all local
governments under Section 4, Article X 20 of the Constitution because
the MOA-AD does not provide for any such stipulation;
k)Since the BJE will have its own laws, it is not subject to limitations
imposed by Congress on its taxing powers under Section 5, Article
X 21 of the Constitution;
l)R.A. No. 6734 and R.A. No. 9054, or the ARMM Organic Acts, have to
be amended to allow for the existing ARMM to be included within the
Bangsamoro homeland to be governed by the BJE;
m)The Bangsamoro people will have to be exempted from the
application of R.A. No. 8371 or the Indigenous Peoples Rights Act
(IPRA) insofar as the MOA-AD declares the Bangsamoro territory as
ancestral domain and recognizes in the Bangsamoro people rights
pertaining to indigenous peoples under the IPRA;
n)Existing laws which regulate mining rights and the
exploitation of natural resources will also have to exempt the BJE from
its coverage, as the MOA-AD grants the BJE the power to utilize,
develop and exploit natural resources within its territory as well as the
authority to revoke or grant forest concessions, timber licenses and
mining agreements; and
o)The BJE will also have to be exempted from existing agrarian statutes
as the BJE is empowered to enact its own agrarian laws and program
under paragraph 2.e22 on Resources. CSEHcT
From the foregoing, it is clear that the substantive provisions of the MOA-AD
directly contravene the fundamental law and existing statutes. Otherwise, it
would not be necessary to effect either statutory or constitutional amendments to
make it effective. Moreover, as correctly pointed out by petitioners,
the GRP panel exceeded its authority when it categorically undertook to make
these statutory and constitutional changes in order to fully implement the MOA-
AD.
Paragraph 7 of the MOA-AD on Governance states that provisions therein which
require amendments to the existing legal framework shall come into force upon
signing of the Comprehensive Compact and upon effecting the necessary
changes to the legal framework. These "necessary changes" shall be undertaken
"with due regard to non-derogation of prior agreements and within
the stipulated timeframe to be contained in the Comprehensive Compact".
The language of the aforesaid paragraph 7 on Governance, in relation to
paragraph 2 (d) on Territory, indicates that the GRP panel committed itself to
cause the necessary changes to the legal framework within a stipulated
timeframe for the MOA-AD to become effective. Paragraph 2 (d) on Territory
reads: caTIDE
2.Toward this end, the Parties enter into the following stipulations:
xxx xxx xxx
d.Without derogating from the requirements of prior agreements, the
Government stipulates to conduct and deliver, using all possible legal
measures, within twelve (12) months following the signing of the MOA-
AD, a plebiscite covering the areas as enumerated in the list and
depicted in the map as Category A attached herein (the Annex). The
Annex constitutes an integral part of this framework agreement. Toward
this end, the Parties shall endeavor to complete the negotiations and
resolve all outstanding issues on the Comprehensive Compact within
fifteen (15) months from the signing of the MOA-AD.
Pursuant to the above, the GRP panel bound itself to "complete the negotiations
and resolve all outstanding issues on the Comprehensive Compact within fifteen
(15) months from the signing of the MOA-AD". On the other hand, it is explicitly
provided in paragraph 7 on Governance that the Comprehensive Compact shall
contain a stipulated timeframe within which to effect the necessary changes to
the legal framework. In other words, the GRP panel undertook to change the
legal framework within a contemplated period to be agreed upon within fifteen
(15) months from the signing of the MOA-AD. SEcITC
It should also be noted that, in accordance with paragraph 2 (a) 23 on Territory,
the GRP panel committed itself "to the full and mutual implementation of this
framework agreement on territory". To fully realize the MOA-AD stipulations on territory,
it would be necessary to effect both statutory and constitutional amendments as well as
complete negotiations on the Comprehensive Compact. The plebiscite envisioned under
paragraph 2 (c) on Territory, for instance, would require not only an amendment of the
ARMM Organic Acts, but also a constitutional amendment that would allow for the very
creation of the BJE. Thus, the full implementation of the territory provisions of the MOA-
AD presupposes changes in the legal framework, which the GRP panel guaranteed
under paragraph 7 on Governance.
Additionally, paragraph 7 on Governance provides that necessary changes to the
legal framework shall likewise be effected "with due regard to non-
derogation of prior agreements". This can only mean that any change to the legal
framework should not diminish or detract from agreements previously entered
into by the parties. It also implies that provisions of prior agreements are already
final and binding, as these serve as take-off points for the necessary changes
that will be effected to fully implement the MOA-AD.
In my opinion, the MOA-AD is intended to be included among the prior
agreements whose terms cannot be decreased by any of the changes that are
necessary for it to come into force. More specifically, by the time the
Comprehensive Compact shall have prescribed the timeframe for effecting these
changes, the MOA-AD shall have become a prior agreement that is subject to the
non-derogation clause found in paragraph 7 on Governance. This signifies that
any change in the legal framework should adapt to the terms ofthe MOA-AD. The
latter becomes the parameter of any statutory or constitutional amendments
which are necessary to make the MOA-AD effective.
As such, it cannot be denied that the GRP panel committed itself to the full
implementation of the MOA-AD by effecting changes to the legal framework.
Respondents cannot deny this by saying that the parties further undertook to
negotiate a Comprehensive Compact or a final peace agreement. Although it
may be conceded that the parties have yet to enter into a Comprehensive
Compact subsequent to the signing of the MOA-AD, the nature of this compact
shows that the MOA-AD was intended as the controlling document for the
essential terms of the Comprehensive Compact. Paragraphs 3 and 7 of the
MOA-AD provisions on Governance invariably describe the Comprehensive
Compact as merely embodying details for the effective
enforcement and actual implementation of the MOA-AD. Thus, the
Comprehensive Compact will simply lay down the particulars of the parties' final
commitments, as expressed in the assailed agreement. cSATEH
Consequently, paragraph 7 on Governance in relation to paragraph 2 (a) on
Territory contradict respondents' assertion that the MOA-AD is merely a
preparatory agreement devoid of any real effects. The language employed in
these provisions do not support respondents' contention that the MOA-AD is just
a reference for future negotiations or consists of mere proposals that are subject
to renegotiation. The words used in these provisions are categorical in stating
that the GRP panel committed itself to the full implementation of the MOA-AD by
effecting changes to the legal framework within a stipulated timeframe. In other
words, these are definite propositions that would have to be undertaken under
the agreement of the parties.
The foregoing discussion demonstrates that the MOA-AD is not merely a
draft of consensus points that is subject to further negotiations between
the GRP panel and the MILF. The language of the MOA-AD shows that
the GRP panel made a real and actual commitment to fully implement the MOA-
AD by effecting the necessary amendments to existing laws and the Constitution.
The GRP panel's obligation to fully implement the provisions on Territory and to
effect these "necessary changes" is in itself not dependent on any statutory or
constitutional amendment. It is only subject to a timeframe that will be specified
in the Comprehensive Compact, per stipulation of the parties.
At this point, it is worth noting that the MOA-AD cannot even be subjected to
subsequent legal processes, such as a plebiscite or statutory and constitutional
amendments. The MOA-AD cannot be validated by any of these means
considering that the GRP panel does not even have the power to make these
legal processes occur. This is because the panel is not authorized to commit to
statutory and constitutional changes to fully implement the MOA-AD. Thus, it is
not legally possible to undertake these legal processes under the circumstances
provided in the agreement. AcEIHC
To emphasize, the GRP panel had neither power nor authority to commit the
government to statutory and constitutional changes. The power to amend laws
and to cause amendments or revisions to the Constitution belongs to Congress
and, to a certain extent, the people under a system of initiative and referendum.
Only Congress and the people have the competence to effect statutory and
constitutional changes in the appropriate manner provided by law.
The GRP panel, as a mere organ of the Executive branch, does not possess any
such prerogative.

In the matter of legislation, it is settled that the power of Congress under Article
VI, Section 1 24 of the Constitution is plenary and all-encompassing. The legislature
alone determines when to propose or amend laws, what laws to propose or amend, and
the proper circumstances under which laws are proposed or amended. As held in Ople
v. Torres:25
. . . Legislative power is "the authority, under the Constitution, to make
laws, and to alter and repeal them". The Constitution, as the will of the
people in their original, sovereign and unlimited capacity, has vested this
power in the Congress of the Philippines. The grant of legislative power
to Congress is broad, general and comprehensive. The legislative body
possesses plenary power for all purposes of civil government.
Similarly, the power to amend or revise the Constitution also pertains to
Congress in the exercise of its constituent functions. The same power is also
reserved to the people under a system of initiative, pursuant to Article
XVII 26 of the Constitution. In Lambino v. COMELEC, 27 the Court stated that there are
three modes of amending the Constitution under Article XVII. The first mode is through
Congress, acting as a constituent assembly, upon three-fourth's vote of all its Members;
the second mode is through a constitutional convention created under a law passed by
Congress; and the third mode is through a people's initiative. Nowhere in the
Constitution does it state that the Executive or any of its organs can effect constitutional
changes, as assumed by the GRP panel under the MOA-AD.
Notwithstanding the apparent lack of power or authority, the GRP panel
undertook to effect changes to the Constitution and to statutes in order to fully
implement the MOA-AD. In doing so, the GRP panel pre-empted Congress by
determining, firsthand, the wisdom of effecting these changes as well as the
nature of the required amendments to laws and the Constitution. It encroached
upon the exclusive prerogative of Congress by assuming to exercise a discretion
that it did not possess. It thus exceeded its authority and acted without
jurisdiction. HcDSaT
It should have been evident to the GRP panel that it could not bargain away laws
enacted by Congress or the people's sovereign will as expressed in the
Constitution. Apart from the fact that it had no power to do so, its acts were in
clear disregard of the instructions of the President as stated in
the Memorandum of Instructions From the President dated March 1, 2001. The
President clearly directed therein that "(t)he negotiations shall be conducted in
accordance with the mandates of the Philippine Constitution, the Ruleof Law, and
the principles of sovereignty and territorial integrity of the Republic of the
Philippines". The GRP panel did otherwise and failed to act in accordance with
this directive.
The GRP panel derives its authority from the Chief Executive, whose sworn duty
is to faithfully execute the laws and uphold the Constitution. In negotiating the
terms of the MOA-AD, however, the GRP panel violated our Constitution and our
laws by subscribing to stipulations that could very well lead to their emasculation.
The GRP panel agreed to illegal and unconstitutional concessions and
guaranteed the performance of a prestation that it could not deliver. This
constitutes manifest grave abuse of discretion amounting to lack or
excess of jurisdiction.
It is beyond question that the MOA-AD is patently unconstitutional. Had it been
signed by the parties, it would have bound the government to the creation of a
separate Bangsamoro state having its own territory, government, civil institutions
and armed forces. The concessions that respondents made to the MILF would
have given the latter leverage to demand that the Bangsamoro homeland be
recognized as a state before international bodies. It could insist that the MOA-AD
is in fact a treaty and justify compliance with its provisions, under the
international law principle of pacta sunt servanda. The sovereignty and territorial
integrity of the Philippines would have been compromised.
For these reasons, I vote to grant the petitions. Respondents must be prohibited
and permanently enjoined from negotiating, executing and entering into a peace
agreement with terms similar to the MOA-AD. Although respondents have
manifested that the MOA-AD will not be signed "in its present form or in any other
form", the agreement must nonetheless be declared unconstitutional and,
therefore, void ab initio, to remove any doubts regarding its binding effect on the
Republic. Under no circumstance could the MOA-AD acquire legitimacy and
force against the entire nation, and no less than a categorical declaration to this
effect should put the issue to rest. aEHADT
I so vote.
CARPIO, J., concurring:
If this Court did not stop the signing of the Memorandum of Agreement on
Ancestral Domain (MOA-AD), this country would have been dismembered
because the Executive branch would have committed to amend the Constitution
to conform to the MOA-AD. The MOA-AD gives to the Bangsamoro Juridical
Entity (BJE) the attributes of a state, with its own people, territory, government,
armed forces, foreign trade missions, and all other institutions of a state, 1 under
the BJE's own basic law or constitution. 2
Usurpation of the Powers of Congress and the People
The initialed MOA-AD between the Government of the Republic of the
Philippines (GRP) and the Moro Islamic Liberation Front (MILF) is patently
unconstitutional. The Executive branch's commitment under the MOA-AD to
amend the Constitution to conform to the MOA-AD violates Sections 1 and 4,
Article XVII of the Constitution. The Executive branch usurps the sole
discretionary power of Congress to propose amendments to the Constitution as
well as the exclusive power of the sovereign people to approve or disapprove
such proposed amendments. Sections 1 and 4, Article XVII of the Constitution
provide:
Section 1.Any amendment to, or revision of, this Constitution may be
proposed by:
(1)The Congress, upon a vote of three-fourths of all its Members;
or
(2)A constitutional convention.
Section 4.Any amendment to, or revision of, this Constitution under
Section 1 hereof shall be valid when ratified by a majority of the votes
cast in a plebiscite which shall be held not earlier than sixty days nor
later than ninety days after the approval of such amendment or
revision. aEcTDI
Indisputably, the Executive branch has no power to commit to the MILF that the
Constitution shall be amended to conform to the MOA-AD. Such commitment is a
grave abuseof discretion amounting to lack or excess of jurisdiction. 3
The MOA-AD states, in paragraph 2 (a) on Territory, that "the Parties to this
Agreement commit themselves to the full and mutual
implementation of this framework agreement". The MOA-AD further states, in
paragraph 7 on Governance, that:
Any provisions of the MOA on Ancestral Domain requiring amendments
to the existing legal framework shall come into force upon signing of a
comprehensive compact and upon effecting the necessary changes to
the legal framework with due regard to non derogation of prior
agreements and within the stipulated timeframe to be contained in the
Comprehensive Compact. (Emphasis supplied)
The Executive branch commits to implement fully the MOA-AD by amending
the "existing legal framework", impliedly referring to the Constitution. The
Executive branch further commits that such constitutional amendments
shall not derogate from prior GRP-MILF agreements. At the time of the
constitutional amendments, the MOA-AD will be a prior agreement, along with
several other GRP-MILF agreements. 4 THcEaS
The phrase "due regard to non-derogation of prior agreements" means there
shall be no deviation from previous GRP-MILF agreements. The word "due"
means a right to something, as in something that is "due" a person. This is the
same usage of the word "due" in the phrase "due process of law", which means
one's right to legal process. The word "regard" means attention or observance.
"Non-derogation" means no deviation. Thus, "due regard to non-
derogation of prior agreements" simply means observance ofwhat the MILF is
entitled under previous GRP-MILF agreements, to which there shall be no
deviation.
The phrase "due regard" means mandatory observance and not discretionary
observance. When one speaks of "due regard for the law", one intends
mandatory observanceof the law. The same is true for "due regard to non-
derogation of prior agreements", which means mandatory observance of non-
derogation of previous agreements. The following pronouncements of the Court
reveal the mandatory nature of the phrase "due regard":
The least this Court can do under the circumstances is to make clear to
all and sundry, especially to members of police forces, that the authority
conferred on them to maintain peace and order should be exercised
with due regard to the constitutional rights, most especially so of those
who belong to the lower-income groups. If in a case like the present, the
full force of the penal statute is not felt by the perpetrator of the misdeed,
then the law itself stands condemned. This we should not allow to
happen. 5 (Emphasis supplied)
Entrapment is allowed when it is undertaken with due regard to
constitutional and legal safeguards. It has repeatedly been accepted as
a valid means of arresting violators of the Dangerous Drugs
Law. 6 (Emphasis supplied)
The phrase "due regard" is commonly found in international treaties and
conventions, like the United Nations Convention on the Law of the
Sea (UNCLOS) where the phrase appears at least 16 times. The phrase "due
regard" as used in UNCLOS is explained as follows:
[T]he requirement of "due regard" is a qualification of the
rights of States in exercising the freedoms of the high seas. The
standard of "due regard" requires all States, in exercising their high
seas freedoms, to be aware of and consider the interests of other States
in using the high seas, and to refrain from activities that interfere with
the exercise by other States of the freedom of the high seas. As the
ILC [which prepared drafts of the 1958 LOS Conventions], stated in its
Commentary in 1956, "States are bound to refrain from any acts that
might adversely affect the use of the high seas by
nationals of other States". The construction in paragraph 2 recognizes
that all States have the right to exercise high seas freedoms, and
balances consideration for the rights and interests of all states in this
regard. 8 (Emphasis supplied) IDAEHT

The phrase "due regard", as used in the Convention on International Civil
Aviation, is understood as giving rise to "a duty of 'due regard' upon
operators of state aircraft, and thus, upon military aircraft, for the safety of the
navigation of civil aircraft". 8 Thus, "the 'due regard' rule remains the principal
treaty obligation imposed upon States for the regulation of the flight of military
aircraft applicable during times of peace and armed conflict". 9
The Chairman of the MILF and its highest-ranking official, Al Haj Murad Ebrahim,
candidly admitted that the MILF's understanding is that the Constitution shall be
amended to conform to the MOA-AD. In an ABS-CBN television interview aired
nationwide on 20 August 2008, and widely reported in the newspapers, MILF
Chairman Murad stated: TIHCcA
It may be beyond the Constitution but the Constitution can be amended
and revised to accommodate the agreement. What is important is
during the amendment, it will not derogate or water down the
agreement because we have worked this out for more than 10 years
now. 10 (Emphasis supplied)
During the oral arguments, Atty. Sedfrey Candelaria, principal counsel to
the GRP Panel, when asked about this statement, did not dispute that MILF
Chairman Murad made the statement. Atty. Candelaria simply told the Court
that MILF Chairman Murad "did not sit in the negotiating table". 11
Clearly, under the MOA-AD, the Executive branch assumes the mandatory
obligation to amend the Constitution to conform to the MOA-AD. During the oral
arguments, Atty. Sedfrey Candelaria admitted that the implementation of the
MOA-AD requires "drastic changes" to the Constitution. 12 As directed by Justice
Antonio T. Carpio, Atty. Candelaria undertook to submit to the Court a listing of all
provisions in the Constitution that needed amendment to conform to the MOA-AD. 13 In
their Memorandum dated 24 September 2008, respondents stated: "In compliance with
the said directive, the constitutional provisions that may be affected, as relayed by Atty.
Sedfrey Candelaria, are the following Sections 1, 5, 18, 20 and 21 of Article X under
Local Autonomy". 14 This listing is grossly incomplete. A more thorough scrutiny
shows that the "drastic changes" are amendments to the following provisions of the
Constitution:
1.Article 1 on the National Territory. 15 During the oral arguments, Atty.
Sedfrey Candelaria stated that this provision would have to be
amended to conform to the MOA-AD. 16
2.Section 3, Article II on the role of the Armed Forces of the Philippines
as "protector of the people and the State". 17 Under the MOA-AD,
the AFP's role is only to defend the BJE against external
aggression. 18
3.Article III on the Bill of Rights. The MOA-AD does not state that the
Bill of Rights will apply to the BJE. The MOA-AD refers only to
"internationally recognized human rights instruments" 19 such as
the United Nations Universal Declaration on Human Rights,
International Humanitarian Law, and the United Nations
Declaration on the Rights of Indigenous Peoples. No reference is
made to the Bill of Rights or even to the Constitution. HSDaTC
4.Section 1, Article VI on the Legislative Department. 20 Legislative
power shall no longer be vested solely in the Congress of the
Philippines. Under the MOA-AD, the BJE shall "build, develop
and maintain its own institutions" 21 like a legislature whose
laws are not subordinate to laws passed by Congress. 22
5.Section 1, Article VII on executive power. 23 Executive power shall no
longer be vested exclusively in the President of the Philippines.
The BJE shall have its own Chief Executive who will not be under
the supervision of the President. 24
6.Section 16, Article VII on the President's power to appoint certain
officials, including military officers from the rank of colonel or
naval captain, with the consentof the Commission on
Appointments. 25 All public officials in the BJE, including military
officers of any rank in the BJE internal security force, will be
appointed in accordance with the BJE's own basic law or
constitution. HcACTE
7.Section 17, Article VII on the President's control over all executive
departments. 26 The President will not control executive bureaus
or offices in the BJE, like foreign trade missions of the BJE.
8.Section 18, Article VII on the President as "Commander-in-
Chief of all armed forces of the Philippines". 27 Under the MOA-
AD, the President will not be the Commander-in-Chief of the
BJE's internal security force. The BJE's internal security force will
not be part of the AFP chain of command.
9.Section 21, Article VII on the ratification of treaties and international
agreements by the Senate. 28 This will not apply to the BJE
which, under the MOA-AD, has the power to enter into economic
and trade treaties with other countries. 29
10.Section 1, Article VIII on judicial power being vested in one Supreme
Court. 30 Since the BJE will have "its own . . . judicial
system", 31 the BJE will also have its own Supreme Court.
11.Section 2, Article VIII on the power of Congress to define and
apportion the jurisdiction of lower courts. 32 Under the MOA-AD,
Congress cannot prescribe the jurisdiction of BJE courts.
12.Section 5(2), Article VIII on the power of the Supreme Court to review
decisions of lower courts and to promulgate rules of pleadings
and practice in all courts.33 Under the MOA-AD, the BJE will have
its own judicial system. Decisions of BJE courts are not
reviewable by the Supreme Court.
13.Section 5(6), Article VII on the power of the Supreme Court to
appoint all officials and employees in the Judiciary. 34 This power
will not apply to courts in the BJE. ASIDTa
14.Section 6, Article VIII on the Supreme Court's administrative
supervision over all courts and their personnel. 35 Under the
MOA-AD, the Supreme Court will not exercise administrative
supervision over BJE courts and their personnel.
15.Section 9, Article VIII on the appointment by the
President of all judges in the Judiciary from nominees
recommended by the Judicial and Bar Council. 36 This provision
will not apply to courts in the BJE.
16.Section 11, Article VIII on the power of the Supreme Court to
discipline judges of all lower courts. 37 This power will not apply to
judges in the BJE.
17.Section 1(1), Article IX-B on the power of the Civil Service
Commission to administer the civil service. 38 Under the MOA-AD,
the BJE will have "its own . . . civil service". 39 The Civil Service
Commission will have no jurisdiction over the BJE's civil service.
18.Section 2(1), Article IX-C on the power of the Commission on
Elections to enforce and administer all election laws. 40 Under the
MOA-AD, the BJE will have "its own . . . electoral
system". 41 The Commission on Elections will have no
jurisdiction over the BJE's electoral system. IDScTE
19.Section 2(1), Article IX-D on the power of the Commission on Audit to
examine and audit all subdivisions, agencies and
instrumentalities of the Government. 42Under the MOA-AD, the
BJE can "build, develop and maintain its own
institutions" 43 without limit. The BJE can create its own audit
authority. The Commission on Audit will have no jurisdiction over
the BJE or its subdivisions, agencies or instrumentalities.
20.Section 1, Article X on the political subdivisions of the
Philippines. 44 A new political subdivision for the BJE will have to
be created.
21.Section 4, Article X on the power of the President to exercise general
supervision over all local governments. 45 Under the MOA-AD,
this provision will not apply to the BJE.
22.Section 5, Article X subjecting the taxing power of local governments
to limitations prescribed by Congress. 46 Under the MOA-AD, the
BJE shall have "its own . . . legislation". 47 The BJE's taxing
power will not be subject to limitations imposed by national law.
23.Section 6, Article X on the "just share" of local government units in
national taxes. 48 Since the BJE is in reality independent from the
national government, this provision will have to be revised to
reflect the independent status of the BJE and its component
cities, municipalities and barangays vis- -vis other local
government units. AEcIaH
24.Section 10, Article X on the alteration of boundaries of local
government units, which requires a plebiscite "in the political units
affected". 49 Under paragraph 2(d) on Territory of the MOA-
AD, 50 the plebiscite is only in the barangays and municipalities
identified as expansion areas of the BJE. There will be no
plebiscite "in the political units affected", which should include all
the barangays within a city, and all municipalities within
a province.
25.Section 15, Article X on the creation of autonomous regions within the
framework of the Constitution, national sovereignty and territorial
integrity of the Philippines. 51 This will have to be revised since
under the MOA-AD the BJE has all the attributes of a state.
26.Section 16, Article X on the President's power to exercise general
supervision over autonomous regions. 52 This provision will not
apply to the BJE, which is totally independent from the President's
supervision.
27.Section 17, Article X which vests in the National Government residual
powers, or those powers which are not granted by the
Constitution or laws to autonomous regions. 53 This will not apply
to the BJE.
28.Section 18, Article X which requires that personal, family and property
laws of autonomous regions shall be consistent with the
Constitution and national laws.54 This will not apply to the BJE
which will have its own basic law or constitution. 55
29.Section 20, Article X on the legislative powers of autonomous
regional assemblies whose laws are subject to the Constitution
and national laws. 56 This provision will not apply to the BJE. EHcaDT
30.Section 21, Article X on the preservation of peace and order within
autonomous regions by the local police as provided in national
laws. 57 Under the MOA-AD, the BJE shall have "its own . . .
police" 58 to preserve peace and order within the BJE.

31.Section 2, Article XII on State ownership of all lands of the public
domain and of all natural resources in the Philippines. 59 Under
paragraph 3 on Concepts and Principles of the MOA-
AD, 60 ancestral domain, which consists of ancestral lands
and the natural resources in such lands, does not form
part of the public domain. The ancestral domain of the
Bangsamoro refers to land they or their ancestors continuously
possessed since time immemorial, excluding the period that their
possession was disrupted by conquest, war, civil
disturbance, force majeure, other forms of usurpation or
displacement by force, deceit or stealth, or as a
consequence of government project, or any voluntary dealings by
the government and private parties. Under paragraph 1 on
Concepts and Principles of the MOA-AD, . 61 the Bangsamoro
people are the Moros and all indigenous peoples of Mindanao,
Sulu and Palawan. Thus, the ancestral domain ofthe Bangsamoro
refers to the lands that all the peoples in Mindanao, Sulu and
Palawan possessed before the arrival of the Spaniards in 1521. In
short, the ancestral domain of the Bangsamoro refers to the
entire Mindanao, Sulu and Palawan. This negates the Regalian
doctrine in the 1935, 1973 and 1987 Constitutions.
32.Section 9, Article XII on the establishment of an independent
economic and planning agency headed by the President. 62 This
agency is the National Economic and Development Authority.
Under the MOA-AD, the BJE will have its own economic planning
agency.
33.Section 20, Article XII on the establishment of an independent
monetary authority, now the Bangko Sentral ng
Pilipinas. 63 Under the MOA-AD, the BJE will have its own
financial and banking authority. 64
34.Section 4, Article XVI on the maintenance of "a regular
force necessary for the security of the State". 65 This provision
means there shall only be one "Armed Forces of the Philippines"
under the command and control of the President. This provision
will not apply to the BJE since under the MOA-AD, the BJE shall
have"its own . . . internal security force" . 66 which will not be
under the command and control of the President. ECSHAD
35.Section 5(6), Article XVI on the composition of the armed forces,
whose officers and men must be recruited proportionately from
all provinces and cities as far as practicable. 67 This will not apply
to the BJE's internal security force whose personnel will come
only from BJE areas.
36.Section 6, Article XVI on the establishment of one police force which
shall be national in scope under the administration and
control of a national police commission. 68 The BJE will have "its
own . . . police" 69 which is a regional police force not
administered or controlled by the National Police Commission.
The Executive branch thus guarantees to the MILF that the Constitution
shall be drastically overhauled to conform to the MOA-AD. The Executive
branch completely disregards that under the Constitution the sole discretionary
power to propose amendments to the Constitution lies with Congress, and the
power to approve or disapprove such proposed amendments belongs exclusively
to the people. SaIEcA
The claim of respondents that the phrase "prior agreements" does not refer to the
MOA-AD but to GRP-MILF agreements prior to the MOA-AD is immaterial.
Whether the prior agreement is the MOA-AD or any other GRP-MILF agreement
prior to the constitutional amendments, any commitment by the Executive branch
to amend the Constitution without derogating from such prior GRP-MILF
agreement would still be unconstitutional for the same reason usurpation by the
Executive branch of the exclusive discretionary powers of Congress and the
Filipino people to amend the Constitution.
Violation of Constitutional Rights of Lumads
Under the MOA-AD, the Executive branch also commits to incorporate all the
Lumads in Mindanao, who are non-Muslims, into the Bangsamoro people who
are Muslims. There are 18 distinct Lumad groups in Mindanao with their own
ancestral domains and their own indigenous customs, traditions and beliefs. The
Lumads have lived in Mindanao long before the arrival of Islam and Christianity.
For centuries, the Lumads have resisted Islam, a foreign religion like Christianity.
To this day, the Lumads proudly continue to practice their own indigenous
customs, traditions and beliefs.
Suddenly, without the knowledge and consent of the Lumads, the Executive
branch has erased their identity as separate and distinct indigenous peoples.
The MOA-AD, in paragraph 1 on Concepts and Principles, provides:
It is the birthright of all Moros and all Indigenous
peoples of Mindanao to identify themselves and be accepted as
"Bangsamoros". The Bangsamoro people refers to those who are
natives or original inhabitants of Mindanao and its adjacent islands
including Palawan and the Sulu archipelago at the time of conquest or
colonization and their descendants whether mixed or of full native blood.
Spouses and their descendants are classified as Bangsamoro. The
freedom of choice of the indigenous people shall be respected.
(Emphasis supplied) AcICHD
The declaration that it is the "birthright of . . . all Indigenous
peoples of Mindanao to identify themselves and be accepted as
'Bangsamoros'" is cultural genocide. It erases by a mere declaration the
identities, culture, customs, traditions and beliefs of 18 separate and distinct
indigenous groups in Mindanao. The "freedom of choice" given to the Lumads is
an empty formality because officially from birth they are already identified as
Bangsamoros. The Lumads may freely practice their indigenous customs,
traditions and beliefs, but they are still identified and known as Bangsamoros
under the authority of the BJE.
The MOA-AD divests the Lumads of their ancestral domains and hands over
possession, ownership and jurisdiction of their ancestral domains to the BJE. In
paragraphs 2, 3 and 6 on Concepts and Principles, the MOA-AD gives ownership
over the Bangsamoros' ancestral domain to the Bangsamoro people, defines the
ancestral domain of the Bangsamoros, and vests jurisdiction and authority over
such ancestral domain in the BJE, thus:
2.It is essential to lay the foundation of the Bangsamoro homeland in
order to address the Bangsamoro people's humanitarian and
economic needs as well as their political aspirations. Such
territorial jurisdictions and geographic areas being the natural
wealth and patrimony represent the social, cultural and political
identity and pride of all the Bangsamoro people.
Ownership of the homeland is vested exclusively in them by
virtue of their prior rights of occupation that had inhered in them
as sizeable bodies of people, delimited by their ancestors since
time immemorial, and being the first politically organized dominant
occupants.
3.. . . Ancestral domain and ancestral land refer to those held under
claim of ownership, occupied or possessed, by themselves
or through the ancestors ofthe Bangsamoro people,
communally or individually . . . . DHcSIT
xxx xxx xxx
6.Both Parties agree that the Bangsamoro Juridical Entity (BJE) shall
have the authority and jurisdiction over the Ancestral
Domain and Ancestral lands, including both alienable and non-
alienable lands encompassed within their homeland and ancestral
territory, as well as the delineation of ancestral
domains/lands of the Bangsamoro people located therein.
(Emphasis supplied)
After defining the Bangsamoro people to include all the Lumads, the MOA-AD
then defines the ancestral domain of the Bangsamoro people as the ancestral
domain of all the Bangsamoros, which now includes the ancestral domains of all
the Lumads. The MOA-AD declares that exclusive ownership over the
Bangsamoro ancestral domain belongs to the Bangsamoro people. The MOA-AD
vests jurisdiction and authority over the Bangsamoros' ancestral domain in the
BJE. Thus, the Lumads lost not only their separate identities but also their
ancestral domains to the Bangsamoros and the BJE.
The incorporation of the Lumads as Bangsamoros, and the transfer of their
ancestral domains to the BJE, without the Lumads' knowledge and
consent, 70 violate the Constitutional guarantee that the "State recognizes and
promotes the rights of indigenous cultural communities within the
framework of national unity and development". 71The incorporation also violates the
Constitutional guarantee that the "State, subject to the provisions of this Constitution
and national development policies and programs, shallprotect the
rights of indigenous cultural minorities to their ancestral lands to ensure their
economic, social, and cultural well-being." . 72
These Constitutional guarantees, as implemented in the Indigenous Peoples'
Rights Act of 1997, grant the Lumads "the right to participate fully, if they so
chose, at all levelsof decision-making in matters which may affect their
rights, lives and destinies." 73 Since the Executive branch kept the MOA-AD
confidential until its publication in thePhilippine Daily Inquirer on 4 August 2008, the day
before its scheduled signing in Kuala Lumpur, Malaysia, there could have been no
participation by the 18 Lumad groups ofMindanao in their incorporation into the
Bangsamoro. This alone shows that the Executive branch did not consult, much less
secure the consent, of the Lumads on their rights, lives and destinies under the MOA-
AD. In fact, representatives of the 18 Lumad groups met in Cagayan de Oro City and
announced on 27 August 2008, through their convenor Timuay Nanding Mudai, that "we
cannot accept that we are part of the Bangsamoro". 74
The incorporation of the Lumads, and their ancestral domains, into the
Bangsamoro violates the Constitutional and legislative guarantees recognizing
and protecting the Lumads' distinct cultural identities as well as their ancestral
domains. The violation of these guarantees makes the MOA-AD patently
unconstitutional. HcTDSA
The incorporation of the Lumads, and their ancestral domains, into the
Bangsamoro without the Lumads' knowledge and consent also violates Article
8 of the United Nations Declaration on the Rights of Indigenous
Peoples. 75 Section 8 of the Declaration states:

Article 8.
1.Indigenous peoples and individuals have the right not to be subjected
to forced assimilation or destruction of their culture.
2.States shall provide effective mechanisms for prevention of, and
redress for:
(a)Any action which has the aim or effect of depriving
them of their integrity as distinct peoples, or of their
cultural values or ethnic identities;
(b)Any action which has the aim or effect of dispossessing
them of their lands, territories or resources;
(c)Any form of forced population transfer which has the aim or
effect of violating or undermining any of their rights;
(d)Any form of forced assimilation or integration;
(e)Any form of propaganda designed to promote or incite racial or
ethnic discrimination directed against them. (Emphasis
supplied) SECIcT
The provisions of Article 8 were designed to prevent cultural
genocide of indigenous peoples. This will happen if the Lumads are identified
from birth as Bangsamoros and their ancestral domains are absorbed into the
ancestral domain of the Bangsamoros.
There is another provision in the MOA-AD that could prove oppressive to the
Lumads, and even invite conflicts with Christians. The MOA-AD, in paragraph 4
on Territory,empowers the BJE to establish political subdivisions within the
Bangsamoro ancestral domain, as follows:
All territorial and geographic areas in Mindanao and its adjacent islands
including Palawan and the Sulu archipelago that have been declared
recognized, and/or delineated as ancestral domain and ancestral
land of the Bangsamoro people as their geographical areas,
inclusive of settlements and reservations, may be formed or
constituted into political subdivisions of the Bangsamoro territorial
jurisdictions subject to the principles of equality of peoples and mutual
respect and to the protection of civil, political, economic, and cultural
rights in their respective jurisdictions.
Thus, the BJE can create political subdivisions barangays and municipalities
within the Bangsamoro ancestral domain. Under the MOA-AD, the Bangsamoro
ancestral domain includes the ancestral domains of the Lumads. The BJE can
create barangays and municipalities in areas that are presently the ancestral
domains of the Lumads. The BJE can station its police and internal security
force in these areas. Many of these areas the present ancestral
domains of the Lumads are located withinprovinces, cities and
municipalities where Christians are the majority. IaCHTS
There are obvious possible adverse ramifications of this power of the BJE to
create political subdivisions within provinces, cities and
municipalities outside of the BJE territory. The creation by the BJE of such
political subdivisions will alter the boundaries of the affected provinces, cities and
municipalities, an alteration that, under the Constitution, requires an
act of Congress and a plebiscite in the affected political units. 76 The Executive
branch must conduct widespread consultations not only with the Lumads, but also with
the Christians who, under the MOA-AD, will be affected by the creation of such BJE
political subdivisions within their provinces, cities and municipalities.
Petitions Present Justiciable Controversy
The claim of respondents that the MOA-AD, not having been signed but merely
initialed, does not give rise to an actual controversy cognizable by the Court, is
gravely erroneous. The MOA-AD has two features: (1) as an
instrument of cession of territory and sovereignty to a new state, the BJE;
and (2) as a treaty with the resulting BJE, governing the associative
relationship with the mother state, 77 the Philippines, whose only important
role in the relationship is "to take charge of external defense". 78 Justice Vicente V.
Mendoza, a former member of this Court and a recognized authority on constitutional
law, states:
It is indeed true that the BJE is not fully independent or sovereign and
indeed it is dependent on the Philippine government for its external
defense and only lacks foreign recognition, at least at the present
time. Nonetheless it is a state as the Philippines was a state during
the Commonwealth period, which was not a part of the
territory of the United States although subject to its sovereignty. As
a state, it was a signatory to several treaties and international
agreements, such as the Charter of the United Nations of January
1, 1942, and a participant in several conferences such as that held
in Bretton Woods, New Hampshire, on July 1-22, 1944, on the
GATT. As the U.S. Supreme Court noted in Hooven & Allison Co. v.
Evatt, the adoption of the 1935 Constitution prepared the way for the
complete independence of the Philippines and the government
organized under it had been given, in many aspects, by the United
States "the status of an independent government which has been
reflected in its relation as such with the outside world". Similarly, the
Supreme Court of the Philippines held in Laurel v. Misa that "the
Commonwealth of the Philippines was a sovereign government although
not absolute". 79 (Emphasis supplied) cTaDHS
Thus, once the MOA-AD is signed, the MILF, as the acknowledged
representative of the BJE, can exercise the rights of the BJE as a state.
The MILF, on behalf of the BJE, can then demand that the Philippines comply,
under the principle of pacta sunt servanda, with the express terms of the MOA-
AD requiring the Philippines to amend its Constitution to conform to the MOA-AD.
Under the 1969 Vienna Convention on the Law of Treaties, the Philippines
cannot invoke its internal law, including its Constitution, as justification for non-
compliance with the MOA-AD, which operates as a treaty between the GRP and
the BJE. 80 Thus, under international law, the Philippines is obligated to amend its
Constitution to conform to the MOA-AD, whether Congress or the Filipino people
agree or not.
If this Court wants to prevent the dismemberment of the Philippines, a
dismemberment that violates the Constitution, the Court should not wait for
the GRP Panel to sign the MOA-AD. Once the MOA-AD is signed, international
law steps in resulting in irreversible consequences extremely damaging to the
sovereignty and territorial integrity of the Philippines. No subsequent ruling or
order of this Court can undo this terrible damage, or put back a
dismembered Philippines. The initialed MOA-AD already contains definitive
and settled propositions between the GRP and the MILF, and all that is lacking
are the signatures of the GRP and MILF representatives to make the MOA-AD a
binding international agreement. 81 Under these circumstances, the petitions certainly
present an actual justiciable controversy of transcendental importance to the nation. IEHScT
The forum for the resolution of any dispute between the GRP and the MILF under
a signed MOA-AD will not be this Court but the International Court of Justice
(ICJ), which is not bound to respect the Philippine Constitution. The MILF, under
the sponsorship of any member of the Organization of Islamic Conference
(OIC) 82 that recognizes the compulsory jurisdiction of the ICJ, 83 can bring the dispute
to the ICJ. The OIC Special Envoy for the Peace Process in Southern Philippines,
Ambassador Sayed Elmasry, who is also the Secretary-General of the OIC, is a
signatory to the MOA-AD. Above the space reserved for his signature are the words
"ENDORSED BY".
A party to the Statute of the ICJ, like the Philippines, is bound by the ICJ's
determination whether the ICJ has jurisdiction over a dispute. 84 In deciding the
issue of jurisdiction, the ICJ may or may not follow past precedents in the light of special
circumstances of the case before it. The Philippines will be risking
dismemberment of the Republic in the hands ofan international tribunal that is not
bound by the Philippine Constitution.
More importantly, the BJE, represented by the MILF and endorsed by the OIC,
may apply to be a party to the Statute of the ICJ and accept the compulsory
jurisdiction of the ICJ. 85 A State that recognizes the compulsory jurisdiction of the ICJ
has the right to sue before the ICJ any State that has accepted the same compulsory
jurisdiction of the ICJ. 86 The fact that the BJE has all the attributes of a state, with the
acknowledged power to enter into international treaties with foreign countries, gives the
BJE the status and legal personality to be a party to a case before the ICJ. 87 In fact, by
agreeing in the MOA-AD that the BJE, on its own, can enter into international
treaties, 88 the Philippines admits and recognizes the international legal
personality of the BJE, with the capacity to sue and be sued in international
tribunals. CIETDc
In short, for this Court to wait for the signing of the MOA-AD before assuming
jurisdiction will allow an international tribunal to assume jurisdiction over the
present petitions, risking the dismemberment of the Republic.
It is providential for the Filipino people that this Court issued the Temporary
Restraining Order enjoining the signing of the MOA-AD in the nick of time on 4
August 2008. When the Court issued the TRO, the members of the GRP Panel
were already on their way to Malaysia to sign the MOA-AD the following day, 5
August 2008, before representativesof numerous states from the OIC,
Europe, North America, ASEAN and other parts of Asia. Indeed, public
respondents should be thankful to this Court for saving them from inflicting an
ignominious and irreversible catastrophe to the nation.
Petitions Not Mooted
The claim of respondents that the present petitions are moot because during the
pendency of this case the President decided not to sign the MOA-AD, "in its
present form or in any other form", 89 is erroneous. Once the Court acquires
jurisdiction over a case, its jurisdiction continues until final termination of the
case. 90 The claim of respondents that the President never authorized the GRP Panel to
sign the MOA-AD 91 is immaterial. If the GRP Panel had no such authority, then their
acts in initialing and in intending to sign the MOA-AD were in grave abuse of discretion
amounting to lack or excess of jurisdiction, vesting this Court jurisdiction over the
present petitions to declare unconstitutional such actsof the GRP Panel.

Needless to say, the claim that the GRP Panel had no authority to sign the MOA-
AD is a grave indictment of the members of the GRP Panel. At the very least this
shows that the members of the GRP Panel were acting on their own, without
following the instructions from the President as clearly laid down in
the Memorandum of Instructions From The President dated 1 March 2001, which
states in part:
This Memorandum prescribes the guidelines for the Government
Negotiating Panel (GPNP) for the peace negotiation process with the
Moro Islamic Liberation Front (MILF):
1.The negotiations shall be conducted in accordance with the
mandates of the Philippine Constitution, the Rule of Law, and
the principles of the sovereignty and territorial
integrity of the Republic of the Philippines. TEIHDa
2.The negotiation process shall be pursued in line with the national
Comprehensive Peace Process, and shall seek a principled and
peaceful resolution of the armed conflict, with neither blame nor
surrender, but with dignity for all concerned.
3.The objective of the GPNP is to attain a peace settlement that shall:
a.Contribute to the resolution of the root cause of the armed
conflict, and to societal reform, particularly in Southern
Philippines;
b.Help attain a lasting peace and comprehensive stability in
Southern Philippines under a meaningful
program of autonomy for Filipino Muslims, consistent with
the Peace Agreement entered into by the GRP and the
MNLF on 02 September 1996; and
c.Contribute to reconciliation and reconstruction in Southern
Philippines.
4.The general approach to the negotiations shall include the following:
a.Seeking a middle ground between the aspirations of the MILF
and the political, social and economic objectives of the
Philippine Government;
b.Coordinated Third Party facilitation, where needed;
c.Consultation with affected communities and
sectors. (Emphasis supplied)
Indisputably, the members of the GRP Panel had clear and precise instructions
from the President to follow Philippine constitutional processes and to preserve
the national sovereignty and territorial integrity of the Philippines. 92 The
members of the GRP Panel failed to follow their basic instructions from the President,
and in the process, they recklessly risked the near dismemberment of the Republic.
Glaring Historical Inaccuracy in the MOA-AD
The MOA-AD likewise contains a glaring historical inaccuracy. The MOA-AD
declares the Bangsamoro as the single "First Nation". 93 The term "First Nations"
originated in Canada. 94 The term refers to indigenous peoples of a territory, with the
assumption that there are one or more subsequent nations or ethnic groups, different
from the indigenous peoples, that settled on the same territory. Thus, in Canada, the
United States, Australia and New Zealand, the white Europeans settlers are the
subsequent nations belonging to a different ethnic group that conquered the indigenous
peoples. In Canada, there is not a single First Nation but more than 600 recognized
First Nations, reflecting the fact that the indigenous peoples belong to various "nation"
tribes.
In Mindanao, the Lumads who kept their indigenous beliefs, as well as those who
centuries later converted to either Islam or Christianity, belong to the same ethnic
Malay race. Even the settlers from Luzon and Visayas belong to the same ethnic
Malay race. Declaring the Bangsamoros alone as the single "First Nation" is a
historical anomaly. If ethnicity alone is the criterion in declaring a First Nation,
then all peoples of Mindanao belonging to the Malay race are the First Nations. If
resistance to foreign beliefs is the criterion in declaring a First Nation, then the 18
Lumad groups in Mindanao are the First Nations. cSTHAC
When asked during the oral arguments why the MOA-AD declares the
Bangsamoros as the single "First Nation", the Solicitor General answered that
"the MILF requested that they be considered a First Nation". 95 The GRP Panel
should not readily agree to include in the text of the agreement, an official document,
anything that the MILF Panel wants. Claims to historicity must be verified because
historical inaccuracies have no place in a peace agreement that resolves a dispute
rooted to a large extent in historical events.
The Cost of Reparation Could Bankrupt the National Government
The MOA-AD recognizes that the Bangsamoro's ancestral domain, homeland
and historic territory cover the entire Mindanao, Sulu and Palawan areas. 96 While
the MOA-AD recognizes "vested property rights", 97 other than licenses or contracts to
exploit natural resources which are revocable at will by the BJE, the MOA-AD requires
the Government to provide "adequate reparation" to the Bangsamoro for the "unjust
dispossession of their territorial and proprietary rights, customary land tenures, or their
marginalization". 98Such unjust dispossession includes not only the lands taken from
the Bangsamoro since the arrival of the Spaniards in 1521, but also all the natural
resources removed from such lands since 1521. In short, the Government must pay
compensation to the BJE for all titled private lands, as well as all natural resources
taken or extracted, in Mindanao, Sulu and Palawan. STaCIA
If the lands are still State owned like public forests, military and civil
reservations, public school sites, public parks or sites for government buildings
the Government must return the lands to the BJE. The MOA-AD further states,
"Whenever restoration is no longer possible, the GRP shall take effective
measures or adequate reparation collectively beneficial to the Bangsamoro
people, in such quality, quantity and status to be determined mutually by both
Parties".
The cost of reparation could bankrupt the Government. The Executive branch
never consulted Congress, which exercises exclusively the power of the purse,
about this commitment to pay "adequate reparation" to the BJE, a reparation that
obviously has a gargantuan cost. Of course, under Philippine law Congress is not
bound by this commitment of the Executive branch. Under international law,
however, the Philippines is bound by such commitment of the Executive branch.
There is no Disarmament under the MOA-AD
Respondents have repeatedly claimed during the oral arguments that the final
comprehensive peace agreement will lead to the disarmament of the
MILF. 99 However, paragraph 8 on Governance of the MOA-AD allows the BJE "to
build, develop and maintain its own . . . police and internal security force". Clearly,
the BJE's internal security force is separate from its police. The obvious intention is to
constitute the present MILF armed fighters into the BJE's internal security force. In
effect, there will be no disarmament of the MILF even after the signing of the
comprehensive peace agreement.
The BJE can deploy its internal security force not only within the "core" 100 BJE
territory, but also outside of the core BJE territory, that is, in ancestral lands of the
Lumads that are located in Christian provinces, cities and municipalities. Under
paragraphs 1 and 3 on Concepts and Principles of the MOA-AD, the Lumads and all
their ancestral lands in Mindanao, Sulu and Palawan are made part of the BJE. Thus,
the MOA-AD even allows the MILF to station permanently its MILF armed fighters
within Christian provinces, cities and municipalities outside of the core BJE
territory.
Duty to Preserve Territorial Integrity and National Sovereignty
Under the United Nations Declaration on the Rights of Indigenous
Peoples, which is one of the documents referred to in the
Terms of Reference of the MOA-AD, the right to self-determination of indigenous
peoples does not mean a right to dismember or impair the territorial integrity or
political unity of a sovereign and independent State like the Philippines. Article
46 of the Declaration states: cHAaEC
Article 46
1.Nothing in this Declaration may be interpreted as implying for any
State, people, group or person any right to engage in any activity
or to perform any act contrary to the Charter of the United Nations
or construed as authorizing or encouraging any action which
would dismember or impair, totally or in part, the territorial
integrity or political unity of sovereign and independent
States. (Emphasis supplied)
Under international law, every sovereign and independent State has the inherent
right to protect from dismemberment its territorial integrity, political unity and
national sovereignty. The duty to protect the territorial integrity, political unity and
national sovereignty of the nation in accordance with the Constitution is not the
duty alone of the Executive branch. Where the Executive branch is remiss in
exercising this solemn duty in violation of the Constitution, this Court, in the
appropriate case as in the present petitions, must step in because every
member of this Court has taken a sworn duty to defend and uphold the
Constitution.
A Final Word
No one will dispute that the nation urgently needs peace in Mindanao. The entire
nation will truly rejoice if peace finally comes to Mindanao. The Executive branch
must therefore continue to pursue vigorously a peaceful settlement of the Moro
insurgency in Mindanao. No nation can progress and develop successfully while
facing an internal armed conflict. 101
However, any peace agreement that calls for amendments to the Constitution,
whatever the amendments may be, including the creation of the BJE
must be subject to the constitutional and legal processes of the Philippines. The
constitutional power of Congress to propose amendments to the Constitution,
and the constitutional power ofthe people to approve or disapprove such
amendments, can never be disregarded. The Executive branch cannot usurp
such discretionary sovereign powers of Congress and the people, as the
Executive branch did when it committed to amend the Constitution to conform to
the MOA-AD.
There must also be proper consultations with all affected stakeholders, where the
Constitution or existing laws require such consultations. The law requires
consultations for a practical purpose to build consensus and popular support
for an initiative, in this case the peace agreement. Consultations assume greater
importance if the peace agreement calls for constitutional amendments, which
require ratification by the people. A peace agreement negotiated in secret,
affecting the people's rights, lives and destinies, that is suddenly sprung on the
people as a fait accompli, will face probable rejection in a plebiscite.

In short, a peace agreement that amends the Constitution can be lasting only if
accepted by the people in accordance with constitutional and legal processes. ATCaDE
Accordingly, I vote to GRANT the petitions and declare the MOA-AD
UNCONSTITUTIONAL.
AZCUNA, J.:
I agree with the ponencia but I hold the view that, had the MOA-AD been signed
as planned, it would have provided a basis for a claim in an international court
that the Philippines was bound by its terms at the very least as a unilateral
declaration made before representatives of the international community with vital
interests in the region.
Whether the case of Australia v. France 1 or that of Burkina Faso v. Mali, 2 is the one
applicable, is not solely for this Court to decide but also for the international court where
the Philippines could be sued. While we may agree that the Philippines should not be
considered bound, the international court may rule otherwise. There is need to consult
the people before risking that kind of outcome. caHCSD
On this point, Martin Dixon and Robert McCorquodale, in their CASES AND
MATERIALS ON INTERNATIONAL LAW, observe:
B.Unilateral statements
Nuclear Test Cases (Australia v. France and New Zealand v. France)
Merits
ICJ Rep. 1974 253, International Court of Justice
Australia and New Zealand brought proceedings against France arising
from nuclear tests conducted by France in the South Pacific. Before the
Court had an opportunity to hear in full the merits of the case,
statements were made by French authorities indicating that France
would no longer conduct atmospheric nuclear tests. The court held by
nine votes to six that, due to these statements by France, the
claim of Australia and New Zealand no longer had any object and so the
Court did not have to decide the issues in the case.
It is well recognized that declarations made by way of unilateral acts,
concerning legal or factual situations, may have the effect of creating
legal obligations. Declarations of this kind may be, and often are, very
specific. When it is the intention of the State making the declaration that
it should become bound according to its terms, that intention confers on
the declaration the character of a legal undertaking, the State being
thenceforth legally required to follow a course of conduct consistent with
the declaration. An undertaking of this kind, if given publicly, and with an
intent to be bound, even though not made within the
context ofinternational negotiations, is binding. In these circumstances,
nothing in the nature of a quid pro quo nor any subsequent
acceptance of the declaration, not even any reply or reaction from other
States, is required for the declaration to take effect, since such a
requirement would be inconsistent with the strictly unilateral nature of the
juridical act by which the pronouncement by the State was made. . . .
xxx xxx xxx
NOTES:
1.It is very rare that a Court will find that a unilateral statement will bind a
State. In Frontier Dispute Case (Burkina Faso v. Mali) 1986 ICJ Rep
554, a Chamber of the International Court of Justice held that a
statement by the President of Mali at a press conference did not create
legal obligations on Mali, especially as 'The Chamber considers that it
has a duty to show even greater caution when it is a question of a
unilateral declaration not directed to any particular recipient.' (para.
39). 3 SDHAcI
Finally, precedents are not strictly followed in international law, so that an
international court may end up formulating a new rule out of the factual
situation of our MOA-AD, making a unilateral declaration binding under a new
type of situation, where, for instance, the other party is not able to sign a treaty
as it is not yet a State, but the declaration is made to a "particular recipient" and
"witnessed" by a host of sovereign States.
As to the rest, I concur.
TINGA, J.:
As a matter of law, the petitions were mooted by the unequivocal decision of the
Government of the Philippines, through the President, not to sign the challenged
Memorandum of Agreement on Ancestral Domain (MOA-AD). The correct
course of action for the Court is to dismiss the petitions. The essential relief
sought by the petitioners a writ of prohibition under Rule 65 has already
materialized with the Philippine government's voluntary yet unequivocal
desistance from signing the MOA-AD, thereby depriving the Court of a live case
or controversy to exercise jurisdiction upon.
At the same time, I deem it impolitic to simply vote for the dismissal the cases at
bar without further discourse in view of their uniqueness in two aspects. At the
center is an agreement and yet a party to it was not impleaded before it was
forsaken. And while the unimpleaded party is neither a state nor an international
legal person, the cases are laden with international law underpinnings or
analogies which it may capitalize on to stir adverse epiphenomenal
consequences.
According to news reports, the Moro Islamic Liberation Front (MILF) has adopted
the posture that as far as it is concerned, the MOA-AD is already effective, and
there may be indeed a tenuous linkage between that stance and the apparent
fact that the MOA-AD, though unsigned, bears the initials of members of the
Philippine negotiating panel, the MILF negotiating panel and the peace
negotiator of the Malaysian government. These concerns warrant an extended
discussion on the MOA-AD, even if the present petitions are moot and
academic. aSIAHC
I.
It is a bulwark principle in constitutional law that an essential requisite for a valid
judicial inquiry is the existence of an actual case or controversy. A justiciable
controversy must be definite and concrete, touching the legal relations of parties
having adverse legal interests. It must be a real and substantial controversy
admitting of specific relief through a decree that is conclusive in character, as
distinguished from an opinion advising what the law would be upon a
hypothetical state of facts. 1 The exercise of the power of judicial review depends
upon the existence of a case or controversy. Consequently, if a case ceases to be a
lively controversy, there is no justification for the exercise of the power, otherwise, the
court would be rendering an advisory opinion should it do so. 2
We held in Gancho-on v. Secretary of Labor: 3
It is a rule of universal application, almost, that courts of justice
constituted to pass upon substantial rights will not consider questions in
which no actual interests are involved; they decline jurisdiction of moot
cases. And where the issue has become moot and academic, there is no
justiciable controversy, so that a declaration thereon would be of no
practical use or value. There is no actual substantial relief to which
petitioners would be entitled and which would be negated by the
dismissal of the petition. acAIES
In the recent ruling in Suplico v. NEDA, 4 the President officially desisted from
pursuing a national government project which was challenged before this Court. The
Court was impelled to take mandatory judicial notice 5 of the President's act, and
consequently declare the pending petitions as moot and academic. The Court, through
Justice Reyes, held:
Concomitant to its fundamental task as the ultimate citadel of justice and
legitimacy is the judiciary's role of strengthening political stability
indispensable to progress and national development. Pontificating on
issues which no longer legitimately constitute an actual case or
controversy will do more harm than good to the nation as a whole. Wise
exercise of judicial discretion militates against resolving the academic
issues, as petitioners want this Court to do. This is especially true where,
as will be further discussed, the legal issues raised cannot be resolved
without previously establishing the factual basis or antecedents.
Judicial power presupposes actual controversies, the very
antithesis of mootness. In the absence of actual justiciable controversies
or disputes, the Court generally opts to refrain from deciding moot
issues. Where there is no more live subject of controversy, the Court
ceases to have a reason to render any ruling or make any
pronouncement.
Kapag wala nang buhay na kaso, wala nang dahilan para
magdesisyon ang Husgado. 6
The live controversy relied upon by the petitions was the looming accession by
the Philippine government to the MOA-AD, through a formal signing ceremony
that was to be held at Kuala Lumpur, Malaysia, on 5 August 2008. This
ceremony was prevented when the Court issued a Temporary Restraining Order
on 4 August 2008, yet even after the TRO, it appeared that the Government then
was still inclined to sign the MOA-AD after the legal obstacles had been cleared.
However, on 1 September 2008, the Government through the Office of the
Solicitor General, filed a Compliance, manifesting the
pronouncement of Executive Secretary Ermita that "[n]o matter what the
Supreme Court ultimately decides[,] the government will not sign the MOA". This
declared intent was repeated in a Manifestation dated 4 September 2008, and
verbally reiterated during the oral arguments before this Court. HSTaEC
In addition, the President herself publicly declared, as recently as on 2 October
2008, that regardless of the ruling of the Supreme Court on these petitions, her
government will not sign the MOA-AD, "in the light of the recent violent incidents
committed by MILF lawless groups". 7 Clearly following Suplico the Court has no
choice but to take mandatory judicial notice of the fact that the Government will not sign
or accede to the MOA-AD and on this basis dismiss the petitions herein.
Thus, the Court is left with petitions that seek to enjoin the Government from
performing an act which the latter had already avowed not to do. There is no
longer a live case or controversy over which this Court has jurisdiction. Whatever
live case there may have been at the time the petitions were filed have since
become extinct.

Admittedly, there are exceptions to the moot and academic principle. The fact
that these exceptions are oft-discussed and applied in our body of jurisprudence
reflects an unbalanced impression, for most petitions which are rendered moot
and academic are usually dismissed by way of unsigned or minute resolutions
which are not published in the Philippine Reports or the Supreme Court Reports
Annotated. Still, the moot and academic principle remains a highly useful and
often applied tool for the Court to weed out cases barren of any current dispute.
Indeed, even with those exceptions in place, there is no mandatory rule that
would compel this Court to exercise jurisdiction over cases which have become
academic. For the exceptions to apply, it would be necessary, at bare minimum,
to exhibit some practical utilitarian value in granting the writs ofprohibition sought.
Otherwise, the words of the Court would be an empty exercise of rhetoric that
may please some ears, but would not have any meaningful legal value.
A usual exception to the moot and academic principle is where the case is
capable of repetition yet evading review. A recent example where the Court
applied that exception was in Sanlakas v. Executive Secretary, 8 which involved
the power of the President to declare a state of rebellion. Therein, the Court decided to
exercise jurisdiction "[t]o prevent similar questions from re-emerging." 9 It was clear
in Sanlakas that the challenged act, the declaration by the President of a
state of rebellion was a unilateral act that was clearly capable of repetition, it having
actually been accomplished twice before.
Contrast that situation to this case, where the challenged act is not a unilateral
act that can be reproduced with ease by one person or interest group alone. To
repeat the challenged act herein, there would have to be a prolonged and
delicate negotiation process between the Government and the MILF, both sides
being influenced by a myriad ofunknown and inconstant factors such as the
current headlines of the day. Considering the diplomatic niceties involved in the
adoption of the MOA-AD, it is well-worth considering the following discussion on
the complexity in arriving at such an agreement:
The making of an international agreement is not a simple single act. It is
rather a complex process, requiring performance of a variety of different
functions or tasks by the officials of a participating state.
Among the functions which must be distinguished for even minimal
clarity are the following: (1) the formulation of rational policies to guide
the conduct ofnegotiations with other states; (2) the
conduct of negotiations with the representatives of other states; (3) the
approval of an agreement for internal application within the state, when
such internal application is contemplated; (4) the approval of an
agreement for the external commitment of the state; (5) the final
utterance ofthe agreement as the external commitment of the state to
other states. 10 aASDTE
Assuming that the act can be repeated at all, it cannot be repeated with any
ease, there being too many cooks stirring the broth. And further assuming that
the two sides are able to negotiate a new MOA-AD, it is highly improbable that it
would contain exactly the same provisions or legal framework as the discarded
MOA-AD.
II.
Even though the dismissal of these moot and academic petitions is in order in my
view, there are nonetheless special considerations that warrant further comment
on the MOA-AD on my part.
As intimated earlier, the MILF has adopted the public position that as far as it is
concerned, the MOA-AD has already been signed and is binding on the
Government. To quote from one news report:
"The MILF leadership, which is the Central Committee of the MILF, has
an official position, that the memorandum of agreement on the
Bangsamoro Ancestral Domain has been signed", said Ghadzali Jaafar,
MILF vice chairman for political affairs. cHSTEA
xxx xxx xxx
Jaafar said the MILF considers the MOA binding because its draft
agreement was "initialed" last July 27 in Kuala Lumpur by Rodolfo
Garcia, government chief negotiator; Mohagher Iqbal, MILF chief
negotiator; Hermogenes Esperon, presidential adviser on the peace
process, and Datuk Othman bin Abdulrazak, chief peace facilitator for
the Malaysian government.
"Our position is that after initialing, both parties initialed the MOA, that is
a signing", Jaafar said.
Jaafar said the scheduled signing yesterday in Kuala Lumpur was
merely "ceremonial and a formality, in a way to announce to all
throughout the world that a memorandum of agreement has been signed
but actually the signing, actual signing was done".
"So it's a done deal as far as the MILF is concerned", he said.
Jaafar said the MILF and the government set a ceremonial signing of the
MOA "because this is a very important document".
"We want to be proud of it we want to announce it throughout the world
that there is a memorandum of agreement between the Moro Islamic
Liberation Front and the government of the Republic of the Philippines."
He said the MILF expects the government to abide by the MOA
"because this agreement is binding on both parties". 11
It appears that the persons who initialed the MOA-AD were Philippine
Presidential Peace Adviser Hermogenes Esperon, Jr., Philippine government
peace negotiator Rodolfo Garcia, MILF chief negotiator Mohagher Iqbal, and
Datuk Othman bin Abdulrazak, chief peace facilitator of the Malaysian
government. 12
The MILF is not a party to these petitions, and thus its position that the MOA-AD
was in fact already signed through the initials affixed by representatives of the
Philippine and Malaysian governments and the MILF has not been formally
presented for the Court for adjudication. In an earlier submission to the Court, I
discussed the position of the MILF from the following perspective: CcHDSA
There is the danger that if the petitions were dismissed for mootness
without additional comment, it will be advocated by persons so
interested as to make the argument that the intrinsic validity of the MOA-
AD provisions has been tacitly affirmed by the Court. Moreover, the
unqualified dismissal of the petitions for mootness will not preclude the
MILF from presenting the claim that the MOA-AD has indeed already
been signed and is therefore binding on the Philippine government.
These concerns would especially be critical if either argument is later
presented before an international tribunal, that would look to the present
rulingof this Court as the main authority on the status of the MOA-AD
under Philippine internal law.
The use of municipal law rules for international judicial and arbitral procedure has
been more common and more specific than any other type of application. 13 The
International Court of Justice has accepted res judicata as applicable to international
litigation. 14 The following observations by leading commentators on international law
should give pause for thought:
It is clear that, in general, judicial decisions (of national tribunals) in
cases involving international law, domestic as well as international, can
and will be cited for their persuasiveness by parties to an international
legal dispute, the decisions of courts and other tribunals often being
seen to affirm or announce a treaty-based rule or interpretation, a
tenet of customary international law, or a general principle of law,
international or domestic. Judicial decisions are seen as trustworthy
evidenceof what the law really is on a given subject; and this point is
verified by most of the leading international adjudicative and arbitral
decisions that have helped to lay the foundations of, and otherwise
articulate, the substance of international law. 15 (Words in parenthesis
and emphasis supplied) TCDHIc
Thus, in my earlier submission, I stated that should this matter ever be referred to
an international tribunal for adjudication, it is highly probable that a ruling based
on mootness alone without more would be taken as an indicative
endorsement of the validity of the MOA under Philippine law. That misimpression
should be rectified for purposes that transcend the ordinary adjudicative exercise,
I stressed.
Firstly, is the MILF correct when it asserted that the MOA-AD may already be
considered as binding on the Philippine government?
Reference to the initialed but unsigned copy of the MOA-AD is useful. 16 There
are three distinct initials that appear at the bottom of each and every page of the 11-
page MOA-AD: that of Garcia and Esperon for the Philippine negotiating panel, and
that of Iqbal for the MILF. Page 11, the signature page, appears as follows:
IN WITNESS WHEREOF, the undersigned being the
representatives of the Parties hereby affix their signatures.
Done this 5th day of August, 2008 in Kuala Lumpur, Malaysia.
FOR THE GRP:FOR THE MILF
(unsigned)(unsigned)
RODOLFO C. GARCIAMOHAGHER IQBAL
ChairmanChairman
GRP Peace Negotiating PanelMILF Peace Negotiating Panel
WITNESSED BY:
(unsigned)
DATUK OTHMAN BIN ABD RAZAK
Special Adviser to the Prime Minister
ENDORSED BY:
(unsigned)
AMBASSADOR SAYED ELMASRY
Adviser to Organization of the Islamic Conference (OIC)
Secretary General and Special Envoy for Peace Process in
Southern Philippines aEIADT
IN THE PRESENCE OF:
(unsigned)(unsigned)
DR. ALBERTO G. ROMULODATO' SERI UTAMA DR. RAIS
Secretary of Foreign AffairsBIN YATIM
Republic of the PhilippinesMinister of Foreign Affairs
Malaysia
Initialed by:
Sec. Rodolfo Garcia (initialed)Mohagher Iqbal (initialed)
Sec. Hermogenes Esperon (initialed)
Witnessed by:
Datuk Othman bin Abd Razak (initialed)
Dated 27 July 2008
Two points are evident from the above-quoted portion of the MOA-AD. First, the
affixation of signatures to the MOA-AD was a distinct procedure from the
affixation of initials to the pages of the document. Initialization was accomplished
on 27 July 2008, while signature was to have been performed on 5 August 2008.
The initialing was witnessed by only one person, Razak, while the signing of the
MOA-AD was to have been witnessed by the respective heads of the Foreign
Affairs departments of the Philippines and Malaysia. Clearly, signing and initialing
was not intended to be one and the same.

Second, it is unequivocal from the document that the MOA-AD was to take effect
upon the affixation of signatures on 5 August 2008 in Kuala Lumpur, Malaysia,
and not through the preliminary initialing of the document on 27 July 2008.
Under our domestic law, consent of the parties is an indispensable element to
any valid contract or agreement. 17 The three stages of a contract include its
negotiation or preparation, its birth or perfection, and its fulfillment or consummation.
The perfection of the contract takes place only upon the concurrence of its three
essential requisites consent of the contracting parties, object certain which is the
subject matter of the contract, and cause of the obligation which is established. 18 Until
a contract is perfected, there can be no binding commitments arising from it, and at any
time prior to the perfection of the contract, either negotiating party may stop the
negotiation. 19
Consent is indubitably manifested through the signature of the parties. That the
Philippine government has not yet consented to be bound by the MOA-AD is
indubitable. The parties had agreed to a formal signature ceremony in the
presence of the Secretary of Foreign Affairs, the alter ego of the President of the
Philippines. The ceremony never took place. The MOA-AD itself expresses that
consent was to be manifested by the affixation of signatures, not the
affixation of initials. In addition, the subsequent announcement by the President
that the Philippine Government will not sign the MOA-AD further establishes the
absence of consent on the part of the Philippines to the MOA-AD. Under
domestic law, the MOA-AD cannot receive recognition as a legally binding
agreement due to the absence of the indispensable requisite of consent to be
bound. HDTISa
Nonetheless, it is unlikely that the MILF or any other interested party will seek
enforcement of the MOA with the Philippine courts. A more probable recourse on
their part is to seek enforcement of the MOA before an international tribunal.
Could the Philippines be considered as being bound by the MOA under
international law?
Preliminarily, it bears attention that Justice Morales has exhaustively and
correctly debunked the proposition that the MOA-AD can be deemed a binding
agreement under international law, or that it evinces a unilateral
declaration of the Philippine government to the international community that it will
grant to the Bangsamoro people all the concessions stated in the MOA-AD. It
would thus be improper to analyze whether the MOA-AD had created binding
obligations through the lens of international law or through an instrument as the
Vienna Convention on the Law of Treaties, as it should be domestic law alone
that governs the interpretation of the MOA-AD.
Nonetheless, even assuming that international law principles can be utilized to
examine that question, it is clear that the MILF's claim that the MOA-AD is
already binding on the Philippine government will not prevail.
The successful outcome of negotiation of international agreements is the
adoption and authentication of the agreed text. 20 Once a written text is agreed upon
and adopted, it is either signed, or initialed and subsequently signed by the diplomats
and then submitted to the respective national authorities for ratification. 21 Once a treaty
has been adopted, the manner in which a state consents to be bound to it is usually
indicated in the treaty itself. 22 Signature only expresses consent to be bound when it
constitutes the final stage ofa treaty-making process. 23
Reisman, Arsanjani, Wiessner & Westerman explain the procedure in the
formation of international agreements, including the distinction between initialing
and signing:
Treaties are negotiated by agents of states involved. Usually, once the
agents agree on a text, the authenticity of this agreed-upon mutual
commitment is confirmed by the agents placing their initials on the draft
agreement ("initialing"). Their principals, usually the heads of state or
their representatives, then sign the treaty within a time period specified
in the treaty, and submit it to internal processes, usually legislative
authorities, for approval. Once this approval is secured, the
heads of state express the consent of their state to be bound by
depositing an instrument of ratification with the depositary power (in the
case of a multilateral treaty) or with the other state party (in the case of a
bilateral treaty). In the case of a multilateral treaty not signed in time, a
state can still validly declare its consent to be bound by submitting an
instrument of accession. 24 DaAIHC
This discussion is confirmatory that initialing is generally not the act by which an
international agreement is signed, but a preliminary step that confirms the
authenticity of the agreed-upon text of the agreement. The initialing of the
agreement reflects only the affirmation by the negotiating agents that the
text of the prospective agreement is authentic. It is plausible for the negotiating
agents to have initialed the agreement but for the principal to later repudiate the
same before signing the agreement.
Article 12 (2) (a) of the Vienna Convention on the Law of Treaties does provide
that "the initialing of a text constitutes a signature of the treaty when it is
established that the negotiating States so agreed". At bar, it is evident that there
had been no agreement that the mere initialing of the MOA-AD would constitute
the signing of the agreement. In fact, it was explicitly provided in the MOA-AD
that the signing of the agreement would take place on a date different from that
when the document was initialed. Further, a formal signing ceremony
independent of the initialing procedure was scheduled by the parties.
The fact that the MOA-AD reflects an initialing process which is
independent of the affixation of signatures, which was to be accomplished on a
specific date which was days after the MOA-AD was initialed, plainly indicates
that the parties did not intend to legally bind the parties to the MOA through
initialing. There is no cause under international law to assume that the MOA-AD,
because it had been initialed, was already signed by the Philippine Government
or the MILF even. HSaIET
III.
The position of the MILF that the MOA-AD already creates binding obligations
imposable on the Government cannot ultimately be sustained, even assuming
that the initialingof the document had such binding effect. That position of the
MILF supposes that the provisions of the MOA-AD are intrinsically valid under
Philippine law. It takes no inquiry at great depth to be enlightened that the
MOA-AD is incongruous with the Philippine Constitution.
The Constitution establishes a framework for the administration of government
through political subdivisions. The territorial and political subdivisions of the
Republic of the Philippines are the provinces, cities, municipalities, and
barangays. 25 In addition, there shall be autonomous regions in Muslim Mindanao and
the Cordilleras, in accordance with respective organic acts enacted by Congress. 26 The
Constitution has adopted decentralization as a governing principle with respect to local
government rule, and this especially holds true with respect to the autonomous regions.
As we explained in Disomangcop v. DPWH: 27
Regional autonomy is the degree of self-determination exercised by the
local government unit vis- -vis the central government.
In international law, the right to self-determination need not be
understood as a right to political separation, but rather as a complex
net of legal-political relations between a certain people and the state
authorities. It ensures the right of peoples to the necessary
level of autonomy that would guarantee the support of their own cultural
identity, the establishment of priorities by the community's internal
decision-making processes and the management of collective matters by
themselves. aACHDS
If self-determination is viewed as an end in itself reflecting a preference
for homogeneous, independent nation-states, it is incapable of universal
application without massive disruption. However, if self-determination is
viewed as a means to an end that end being a democratic,
participatory political and economic system in which the
rights of individuals and the identity of minority communities are
protected its continuing validity is more easily perceived.
Regional autonomy refers to the granting of basic internal government
powers to the people of a particular area or region with least control and
supervision from the central government.
The objective of the autonomy system is to permit determined groups,
with a common tradition and shared social-cultural characteristics, to
develop freely their ways of life and heritage, exercise their rights, and
be in charge of their own business. This is achieved through the
establishment of a special governance regime for certain member
communities who choose their own authorities from within the
community and exercise the jurisdictional authority legally accorded to
them to decide internal community affairs.
In the Philippine setting, regional autonomy implies the
cultivation of more positive means for national integration. It would
remove the wariness among the Muslims, increase their trust in the
government and pave the way for the unhampered implementation of the
development programs in the region. . . . 28 CIDcHA
At the same time, the creation of autonomous regions does not signify the
establishment of a sovereignty distinct from that of the Republic, as it can be
installed only "within the framework of this Constitution and the national
sovereignty as well as territorial integrity of the Republic of the Philippines". 29
At present, the constitutional mandate of local autonomy for Muslim Mindanao
has already been implemented. Republic Act No. 6734 (R.A. 6734), entitled "An
Act Providing for An Organic Act for the Autonomous Region in Muslim
Mindanao", was enacted and signed into law on 1 August 1989. The law contains
elaborate provisions on the powersof the Regional Government and the
areas of jurisdiction which are reserved for the National Government. The year
2001 saw the passage of Republic Act No. 9054, entitled "An Act to Strengthen
and Expand the Organic Act for the Autonomous Region in Muslim Mindanao,
Amending for the Purpose Republic Act No. 6734, entitled An Act Providing for
the Autonomous Region in Muslim Mindanao, as Amended". Rep. Act No.
9054 contains detailed provisions on the powers of the Regional Government
and the retained areas of governance of the National Government.

Nothing prevents Congress from amending or reenacting an Organic Act
providing for an autonomous region for Muslim Mindanao, even one that may
seek to accommodate the terms of the MOA-AD. Nonetheless, the paramount
requirement remains that any organic act providing for autonomy in Mindanao
must be in alignment with the Constitution and its parameters for regional
autonomy.
The following provisions from Article X of the Constitution spell out the scope and
limitations for the autonomous regions in Mindanao and the Cordilleras:
Sec. 18.The Congress shall enact an organic act for each autonomous
region with the assistance and participation of the regional consultative
commission composed of representatives appointed by the President
from a list of nominees from multisectoral bodies. The organic act shall
define the basic structure ofgovernment for the region consisting of the
executive department and legislative assembly, both of which shall be
elective and representative of the constituent political units. The organic
acts shall likewise provide for special courts with personal, family, and
property law jurisdiction consistent with the provisions of this Constitution
and national laws. ISHCcT
The creation of the autonomous region shall be effective when approved
by majority of the votes cast by the constituent units in a plebiscite called
for the purpose, provided that only provinces, cities, and geographic
areas voting favorably in such plebiscite shall be included in the
autonomous region.
Sec. 20.Within its territorial and subject to the provisions of this
Constitution and national laws, the organic act of autonomous regions
shall provide for legislative powers over:
(1)Administrative organization;
(2)Creation of sources of revenues;
(3)Ancestral domain and natural resources;
(4)Personal, family, and property relations;
(5)Regional urban and rural planning development;
(6)Economic, social, and tourism development;
(7)Educational policies;
(8)Preservation and development of the cultural heritage; and
(9)Such other matters as may be authorized by law for the
promotion of the general welfare of the people of the
region.
Sec. 21.The preservation of peace and order within the regions shall be
the responsibility of the local police agencies which shall be organized,
maintained, supervised, and utilized in accordance with applicable laws.
The defense and security of the regions shall be the responsibility of the
National Government. 2005jurcd
The autonomous regional government to be established through the organic act
consists of the executive and legislative branches of government, both of which
are elective. With respect to the judicial branch, the Constitution authorizes the
organic acts to provide for special courts with jurisdiction limited over personal,
family and property law. The scope of legislative powers to be exercised by the
autonomous legislative assembly is limited to the express grants under Section
20, Article X. The national government retains responsibility over the defense
and security of the autonomous regions. In addition, under Section 17, Article X,
"[a]ll powers, functions, and responsibilities not granted by this Constitution or by
law to the autonomous regions shall be vested in the National Government".
The MOA-AD acknowledges that the Bangsamoro Juridical Entity (BJE) shall
have authority and jurisdiction over the territory defined in the agreement as the
ancestral domainof the Bangsamoro people. For the BJE to gain legal
recognition under the Constitution, it must be identifiable as one of the
recognized political subdivisions ordained in the Constitution. That is not the
case. In fact, it is apparent that the BJE would have far superior powers than
any of the political subdivisions under the Constitution, including the autonomous
regional government for Muslim Mindanao.
The powers of government extended to the BJE are well in excess than that
which the Constitution allocates to the autonomous regional government for
Muslim Mindanao. For example, it was agreed upon in the MOA that:
[T]he BJE shall be empowered to build, develop and maintain its own
institutions, inclusive of, civil service, electoral, financial and banking,
education, legislation, legal, economic, and police and internal security
force, judicial system and correctional institutions, necessary for
developing a progressive Bangsamoro society. . . 31
Under the Constitution, the extent through which the autonomous regional
government could establish a judicial system was confined to the extent of courts
with jurisdiction over personal, property and family law. 31 Obviously, the MOA-AD
intends to empower the BJE to create a broader-based judicial system with jurisdiction
over matters such as criminal law or even political law. This provision also derogates
from the authority of the constitutional commissions, most explicitly the Civil Service
Commission (CSC) and the Commission on Elections (COMELEC). The CSC
administers the civil service, which embraces all branches, subdivisions,
instrumentalities, and agencies of the Government. 32 Yet the MOA-AD would empower
the BJE to build, develop and maintain its own civil service. The BJE is likewise
authorized to establish its own electoral institutions. Yet under the Constitution, it is the
COMELEC which has the exclusive power to enforce and administer election
laws. 33 ACIESH
Much of the MOA-AD centers on agreements relating to the exploitation of the
economic resources over the proposed Bangsamoro homeland. The BJE is
vested with jurisdiction, power and authority over land use, development,
utilization, disposition and exploitation of natural resources within that territory.
To that end, the BJE is empowered "to revoke or grant forest concessions, timber
license, contracts or agreements in the utilization and exploitation of natural
resources". 34 One provision of the MOA-AD makes it certain that it is the BJE which
has exclusive jurisdiction in the exploitation of natural resources, particularly those
utilized in the production of energy:
Jurisdiction and control over, and the right of exploring for, exploiting,
producing and obtaining all potential sources of energy, petroleum, in
situ, fossil fuel, mineral oil and natural gas, whether onshore or offshore,
is vested in the Bangsamoro juridical entity as the party having control
within its territorial jurisdiction, provided that in times of national
emergency, when public interest so requires, the Central Government
may, during the emergency, for a fixed period and under reasonable
terms as may be agreed by both Parties, temporarily assume or direct
the operations of such strategic resources. 35 caTESD
These powers, which are unavailable to any of the political subdivisions, are
reserved under the Constitution to the Republic as the owner of all lands of the
public domain, waters, minerals, coal, petroleum, and other mineral oils, all
forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna,
and other natural resources. 36
As a corollary to the BJE's power over the exploitation of natural resources, the
MOA-AD accords it freedom "to enter into any economic cooperation and trade
relations with foreign countries", including "the option to establish and open
Bangsamoro trade mission in foreign countries with which it has economic
cooperation agreements". 37 Such a "freedom" is contrary to the long-established
principle that "[i]n our system of government, the President, being the head of state, is
regarded as the sole organ and authority in external relations and is the country's sole
representative with foreign nations". 38
The MOA-AD even assures that "the Central Government shall take necessary
steps to ensure the Bangsamoro juridical entity's participation in international
meetings and events, e.g., ASEAN meetings and other specialized
agencies of the United Nations". 39 These terms effectively denote a concession on
the part of the Republic of the Philippinesof a segregate legal personality to the BJE
before international fora.
It bears reminder that regional autonomy under Article X of the Constitution
remains "within the framework of this Constitution and the national sovereignty as
well as territorial integrity of the Republic of the Philippines". These
provisions of the MOA-AD are extra-constitutional and diminish national
sovereignty as they allocate to the BJE powers and prerogatives reserved under
the Constitution to the State. Clearly, the framework of regional government that
premises the MOA-AD is unworkable within the context of the Constitution.
IV.
A member of the GRP Peace Panel, Atty. Sedfrey Candelaria, had admitted to
the Court during the oral arguments held on 29 August 2008 that the
implementation of the MOA-AD would require amendments to the Constitution.
That admission effectively concedes that the MOA-AD is inconsistent with the
Constitution, and thus cannot acquire valid status under Philippine law.
It was evident thought on the part at least of the Philippine negotiating panel, that
the price for peace in Mindanao involved in part, the amendment of the Philippine
Constitution. There is nothing theoretically wrong with that notion, but because
that choice is the most fundamental one the sovereign people can adopt, any
binding commitment to enact charter change undertaken by an
agent of government must be intensely scrutinized.
Any legally binding commitment to amend the Constitution can only come from
the political institutions and the sovereign people who are empowered by the
charter to amend the Constitution. The President nor any other member or
office of the executive branch does not have the power to effect changes to the
Constitution even if he wanted to in the paramount interest of the country
and of the people. Any commitment to any entity on the part of the President or
his political appointees to amend the Constitution is inherently ultra
vires, because the Executive Branch does not have the innate power to
effectuate such changes on its own. Neither does the President have the power
to bind to positive action those whom the Constitution entrusts the power to
amend the charter, namely; the Congress, the delegates to a constitutional
convention, and the electorate. CDaTAI

Constitutional order cannot be sacrificed for expediency, even if in the
name of peace in Mindanao. Assuming that the executive branch has in good
faith become intractably convinced that it is necessary to amend the Constitution
in order to obtain lasting peace in Mindanao, the consequent step should not be
to make promises it has no power alone to keep, hoping against hope that the
Congress and the voters would ultimately redeem the promises. Since
constitutional amendments are involved, the ability of the executive branch to
undertake any legally binding commitment to amend the Constitution can only be
recognized, if at all, with the prior appropriate authorization of Congress, acting
with the specified majorities provided in Section 1 (1), Article XVII of the
Constitution. 40 Under such a mechanism, any constitutionally-oriented concessions
offered by the Philippine government would contemporaneously bear the preliminary
seal of approval by the people or institutions authorized to propose amendments to the
Constitution, subject to final ratification by the people through a plebiscite.
The Government would have been spared of the embarrassment and outcry had
it acted with more prudence by first securing the necessary political mandate to
undertake charter change for the benefit of Mindanao, instead of acting brashly
and rashly by acceding at the outset to the undertaking without consulting the
Congress or the people. In the end, the issuance of the TRO by this Court proved
highly providential, as even the Government wound up seeing the proverbial light
before it was too late.
With the foregoing qualifications, I vote to dismiss the petitions and register my
dissent from the result reached by the majority.
CHICO-NAZARIO, J.:
The piece of writing being assailed in these consolidated Petitions is a peace
negotiation document, namely the Memorandum of Agreement on the
Ancestral Domain Aspect of the GRP-MILF Tripoli
Agreement of Peace of 2001 (MOA). The Solicitor General explained that this
document, prepared by the joint efforts of the Government ofthe Republic of the
Philippines (GRP) Peace Panel and the Moro Islamic Liberation Front (MILF)
Peace Panel, was merely a codification of consensus points reached between
both parties and the aspirations of the MILF to have a Bangsamoro
homeland. 1 Subsequently, the Solicitor General moved for the dismissal of the
consolidated cases at bar based on changed circumstances as well as developments
which have rendered them moot, particularly the Executive Department's statement that
it would no longer sign the questioned peace negotiation document. 2 Nonetheless,
several parties to the case, as well as other sectors, continue to push for what they call
a "complete determination" of the constitutional issues raised in the present
Petitions. IEAaST
I believe that in light of the pronouncement of the Executive Department to
already abandon the MOA, the issue of its constitutionality has obviously become
moot.
The rule is settled that no question involving the constitutionality or validity of a
law or governmental act may be heard and decided by the court unless there is
compliance with the legal requisites for judicial inquiry, namely: that the question
must be raised by the proper party; that there must be an actual case or
controversy; that the question must be raised at the earliest possible opportunity;
and, that the decision on the constitutional or legal question must be necessary
to the determination of the case itself. But the most important are the first two
requisites. 3
For a court to exercise its power of adjudication, there must be an actual case or
controversy one which involves a conflict of legal rights, an
assertion of opposite legal claims susceptible of judicial resolution; the case
must not be moot or academic or based on extra-legal or other similar
considerations not cognizable by a court of justice. A case becomes moot and
academic when its purpose has become stale. 4 An action is considered "moot"
when it no longer presents a justiciable controversy because theissues involved have
become academic or dead or when the matter in dispute has already been resolved
and hence, one is not entitled to judicial intervention unless the issue is likely to be
raised again between the parties. Simply stated, there is nothing for the court to resolve
as the determination thereof has been overtaken by subsequent events. 5
Such is the case here.
The MOA has not even been signed, and will never be. Its provisions will not at
all come into effect. The MOA will forever remain a draft that has never been
finalized. It is now nothing more than a piece of paper, with no legal force or
binding effect. It cannot be the source of, nor be capable of violating, any right.
The instant Petitions, therefore, and all other oppositions to the MOA, have no
more leg to stand on. They no longer present an actual case or a justiciable
controversy for resolution by this Court. ADHCSE
An actual case or controversy exists when there is a conflict of legal rights or an
assertion of opposite legal claims, which can be resolved on the basis of existing
law and jurisprudence. A justiciable controversy is distinguished from a
hypothetical or abstract difference or dispute, in that the former involves a
definite and concrete dispute touching on the legal relations of parties having
adverse legal interests. A justiciable controversy admits of specific relief through
a decree that is conclusive in character, whereas an opinion only advises what
the law would be upon a hypothetical state of facts. 6
For the Court to still rule upon the supposed unconstitutionality of the MOA will
merely be an academic exercise. It would, in effect, only be delivering an opinion
or advice on what are now hypothetical or abstract violations of constitutional
rights.
In Abbas v. Commission on Elections, 7 the 1976 Tripoli Agreement and Republic
Act No. 6734 (the Organic Act for the Autonomous Region in Muslim Mindanao) were
challenged for purported violations of the provisions of the Constitution on
freedom of religion. The Court held therein that it should not inquire into the
constitutionality of a peace agreement which was already consummated (the 1976
Tripoli Agreement) and an Organic Act which was already passed into law (R.A. No.
6734) just because of potential conflicts with the Constitution. Then, with more reason
should this Court desist from ruling on the constitutionality of the MOA which is
unsigned, and now entirely abandoned, and as such, cannot even have any potential
conflict with the Constitution.
The Court should not feel constrained to rule on the Petitions at bar just
because of the great public interest these cases have generated. We are, after
all, a court of law, and not of public opinion. The power of judicial review of this
Court is for settling real and existent dispute, it is not for allaying fears or
addressing public clamor. In acting on supposed abuses by other
branches of government, the Court must be careful that it is not committing
abuse itself by ignoring the fundamental principles of constitutional law. ACIEaH
The Executive Department has already manifested to this Court, through the
Solicitor General, that it will not sign the MOA in its present form or in any
other form. It has declared the same intent to the public. For this Court to insist
that the issues raised in the instant Petitions cannot be moot for they are still
capable of repetition is to totally ignore the assurance given by the Executive
Department that it will not enter into any other form of the MOA in the future. The
Court cannot doubt the sincerity of the Executive Department on this matter. The
Court must accord a co-equal branch of the government nothing less than trust
and the presumption of good faith.
Moreover, I deem it beyond the power of this Court to enjoin the Executive
Department from entering into agreements similar to the MOA in the future, as
what petitioners and other opponents of the MOA pray for. Such prayer once
again requires this Court to make a definitive ruling on what are mere
hypothetical facts. A decree granting the same, without the Court having seen or
considered the actual agreement and its terms, would not only be premature, but
also too general to make at this point. It will perilously tie the hands of the
Executive Department and limit its options in negotiating peace for Mindanao.
Upon the Executive Department falls the indisputably difficult
responsibility of diffusing the highly volatile situation in Mindanao resulting from
the continued clashes between the Philippine military and Muslim rebel groups.
In negotiating for peace, the Executive Department should be given enough
leeway and should not be prevented from offering solutions which may be
beyond what the present Constitution allows, as long as such solutions are
agreed upon subject to the amendment of the Constitution by completely legal
means.
Peace negotiations are never simple. If neither party in such negotiations thinks
outside the box, all they would arrive at is a constant impasse. Thus, a counsel
for one of the intervenors who assert the unconstitutionality of the MOA 8 had no
choice but to agree as follows: EHIcaT
ASSOCIATE JUSTICE QUISUMBING:
Well, we realize the constitutional constraints of sovereignty, integrity
and the like, but isn't there a time that surely will come and the
life of our people when they have to transcend even these
limitations? IcESDA
DEAN AGABIN:
Yes, we have seen it happen in several instances, Your Honor.
xxx xxx xxx
ASSOCIATE JUSTICE QUISUMBING:
And in pursuit of that purpose, the Supreme Court cannot look beyond
the horizon and look for more satisfying result?
DEAN AGABIN:
Well, if you mean by looking beyond the horizon, it would mean a
violation of the provisions of the Constitution, then it should not
be, Your Honor.

ASSOCIATE JUSTICE QUISUMBING:
In some part, we have gone to Malaysia. We have gone to the OIC, and
we have even gone to Libya.
DEAN AGABIN:
Yes, Your Honor. But in all these, we have always insisted on preserving
the territorial integrity of the country.
ASSOCIATE JUSTICE QUISUMBING:
And this dicta or [dogma] is unassailable forever. There cannot be an
exception.
DEAN AGABIN:
It is unassailable under the present Constitution, Your Honor.
ASSOCIATE JUSTICE QUISUMBING:
But, at least, you can also agree that the Constitution ought to be
changed in order for a country to fulfill its internal obligation as a
matter of necessity. CcHDaA
DEAN AGABIN:
Yes, if the people so will it, your Honor.
ASSOCIATE JUSTICE QUISUMBING:
You remember how the emperor of Japan lost his divinity? They just
changed their Constitution, isn't it?
DEAN AGABIN:
Yes, it was enforced upon him by Mr. McArthur, and they have no
choice.
ASSOCIATE JUSTICE QUISUMBING:
Isn't that a very good example of thinking outside the box? That
one day even those who are underground may have to think.
But frankly now Dean, before I end, may I ask, is it possible
to meld or modify our Constitutional Order in order to have
some room for the newly developing international notions on
Associative Governance Regulation Movement and Human
Rights?
DEAN AGABIN:
Yes. It is possible, Your Honor, with the consent of the people.
ASSOCIATE JUSTICE QUISUMBING:
And, therefore, we vote it to a referendum or any consultation
beforehand? AIcaDC
DEAN AGABIN:
If there is such a proposal for or amendment or revision of the
Constitution, yes, Your Honor.
ASSOCIATE JUSTICE QUISUMBING:
So, either initiative or CHA-CHA or CON-AS?
DEAN AGABIN:
Yes, Your Honor. 9
It must be noted that the Constitution has been in force for three decades now,
yet, peace in Mindanao still remained to be elusive under its present terms.
There is the possibility that the solution to the peace problem in the Southern
Philippines lies beyond the present Constitution. Exploring this possibility and
considering the necessary amendment of the Constitution are not per
se unconstitutional. The Constitution itself implicitly allows for its own amendment
by describing, under Article XVII, the means and requirements therefor. In Tan v.
Macapagal, 10 where petitioners claim that the Constitutional Convention was without
power to consider, discuss, or adopt proposals which seek to revise the Constitution
through the adoption of a form of government other than the form outlined in the then
governing Constitution, the Court ruled that:
[A]s long as any proposed amendment is still unacted on by [the
Convention], there is no room for the interposition of judicial oversight.
Only after it has made concrete what it intends to submit for ratification
may the appropriate case be instituted. Until then, the Courts are
devoid of jurisdiction. . . . .
At this point, there is far from a concrete proposed amendment to the
Constitution which the Court can take cognizance of, much less render a
pronouncement upon. CaAcSE
At most, the Court can only exhort the Executive Department to keep in mind that
it must negotiate and secure peace in Mindanao under terms which are most
beneficial for the country as a whole, and not just one group of Muslim
insurgents. Transparency and consultation with all major players, which
necessarily include affected local government units and their constituents, are
essential to arrive at a more viable and acceptable peace plan. The nature and
extent of any future written agreements should be clearly established from the
very beginning, and the terms thereof carefully drafted and clearly worded, to
avoid misunderstandings or misconstructions by the parties and the public. If a
document is meant to be a list of consensus points still subject to further
negotiations, then it should just simply state so.
As a final note, I find it necessary to stress that the Court must not allow itself to
be mired in controversies affecting each step of the peace process in Mindanao.
It is not within the province or even the competence of the Judiciary to tell the
Executive Department exactly what and what not, how and how not, to negotiate
for peace with insurgents. Given this kind of situation where war and peace hang
in the balance, where people's lives are at stake, and the Executive Department,
under its residual powers, is tasked to make political decisions in order to find
solutions to the insurgency problem, the Court should respect the political
nature of the issues at bar and exercise judicial restraint until an actual
controversy is brought before it. CSDAIa
In view of the foregoing, I vote for the GRANT of the Motion to Dismiss filed by
the Solicitor General and, accordingly, for the DISMISSAL of the Petitions at bar
for being MOOT and ACADEMIC.
VELASCO, JR., J., dissenting:
It is a well-settled canon of adjudication that an issue assailing the
constitutionality of a government act should be avoided whenever possible. 1 Put
a bit differently, courts will not touch the issue of constitutionality save when the
decision upon the constitutional question is absolutely necessary to the final
determination of the case, i.e., the constitutionality issue must be the very lis mota of the
controversy. 2 It is along the line set out above that I express my dissent and vote to
dismiss the consolidated petitions and petitions-in-intervention principally seeking to
nullify the Memorandum of Agreement on Ancestral Domain (MOA-AD) proposed to be
entered into by and between the Government of the Republic of the Philippines (GRP)
and the Moro Islamic Liberation Front (MILF).
Non-Joinder of MILF: Fatal
The Rules of Court requires all actions to be brought by or against the real party
in interest. The requirement becomes all the more necessary with respect to
indispensable parties. For:
Indispensable parties are those with such interest in the controversy that
a final decree would necessarily affect their rights so that courts cannot
proceed without their presence. All of them must be included in a suit for
an action to prosper or for a final determination to be had. 3
As it were, the MILF was not impleaded in this case except in G.R. No. 183962.
But it would appear that MILF, doubtless a real party in interest in this
proceedings, was not served a copy of and asked to comment on the petition in
G.R. No. 183962. Significantly, when queried during the oral arguments on the
non-inclusion of the MILF, the petitioners feebly explained that first, they could
not implead the MILF because they did not know where it could be served with
summons; and second, they feared that impleading the MILF would be futile as
the group does not acknowledge the Court's jurisdiction over it. ASDCaI
The importance of joining the MILF in this case cannot be over-emphasized.
While the non-joinder of an indispensable party will generally not deprive the
court of jurisdiction over the subject matter, the only prejudice to the winning
party being the non-binding effect of the judgment on the unimpleaded party, the
situation at bar is different. Here, the unimpleaded party is a party to the
proposed MOA-AD no less and the prospective agreement sought to be annulled
involves ONLY two parties the impleaded respondent GRP and the MILF. The
obvious result is that the Court would not be able to fully adjudicate and legally
decide the case without the joinder of the MILF the other indispensable party to
the agreement. The reason is simple. The Court cannot nullify a prospective
agreement which will affect and legally bind one party without making said
decision binding on the other contracting party. Such exercise is not a valid, or at
least an effective, exercise of judicial power for it will not peremptorily settle the
controversy. It will not, in the normal course of things, write finis to a
dispute. 4 Such consequent legal aberration would be the natural result of the non-
joinder of MILF. A court should always refrain from rendering a decision that will bring
about absurdities or will infringe Section 1, Article 8 of the Constitution which
circumscribes the exercise of judicial power.
Prematurity and Mootness
The MOA-AD is but a proposal on defined consensus points. The agreement has
remained and will remain a mere proposal as the GRP has put off its signing
permanently. 5The parties to the MOA do not have, in short, the equivalent of, or what
passes as, a perfected and enforceable contract. As things stand, the line dividing the
negotiation stage and the execution stage which would have otherwise conferred the
character of obligatoriness on the agreement is yet to be crossed. In a very real sense,
the MOA-AD is not a document, as the term is juridically understood, but literally a
piece of paper which the parties cannot look up to as an independent
source of obligation, the binding prestation to do or give and the corollary right to exact
compliance. Yet, the petitioners would have the Court nullify and strike down as
unconstitutional what, for all intents and purposes, is a non-existent agreement. Like a
bill after it passes third reading or even awaiting the approval signature of the President,
the unsigned draft MOA-AD cannot plausibly be the subjectof judicial review, the
exercise of which presupposes that there is before the court an actual case or, in fine, a
justiciable controversy ripe for adjudication. A justiciable controversy involves a definite
and concrete dispute touching on the legal relations of parties who are pitted against
each other due to their demanding and conflicting legal interests. 6 And a dispute is ripe
for adjudication when the act being challenged has had direct adverse effect on the
person challenging it and admits of specific relief through a decree that is conclusive in
character. As aptly observed in Tan v. Macapagal, 7 for a case to be considered ripe for
adjudication, it is a prerequisite that something had been accomplished by either
branch of government before a court may step in. In the concrete, the Court could have
entered the picture if the MOA-AD were signed. For then, and only then, can we say
there is a consummated executive act to speak of. DAHaTc

As opposed to justiciable controversy, academic issues or abstract or feigned
problems only call for advices on what the law would be upon a hypothetical
state of facts. 8Were the Court to continue entertain and resolve on the merits these
consolidated petitions, the most that it can legally do is to render an advisory
opinion, 9 veritably binding no one, 10 but virtually breaching the rule against advisory
opinion set out, if not implied in Section 1, Article VIII charging "courts of justice [the
duty] to settle actual controversiesinvolving rights which are legally demandable and
enforceable". AIDSTE
Prescinding from and anent the foregoing considerations, it can categorically be
stated that what the petitions are pressing on the Court are moot and academic
questions. An issue or a case becomes moot and academic when it ceases to
present a justiciable controversy so that a determination thereof would be without
practical use and value. 11 In such cases, there is no actual substantial relief to which
the petitioner would be entitled to and which would be negated by the dismissal of the
petition. 12 To be sure, the mootness of a case would not, in all instances, prevent the
Court from rendering a decision thereon. 13 So it was that in a host of cases, we
proceeded to render a decision on an issue otherwise moot and academic. Dela
Camara v. Enage, 14 Gonzales v. Marcos, 15 Lacson v. Perez, 16 Albania v.
COMELEC, 17 Acop v. Guingona II 18 and David v. Macapagal-Arroyo, 19 among other
cases, come to mind. David lists the exceptions to the rule on mootness, thus:
The "moot and academic" principle is not a magical formula that can
automatically dissuade the courts in resolving a case. Courts will decide
cases, otherwise moot and academic, if: first, there is a grave
violation of the Constitution; second, the exceptional character of the
situation and the paramount public interest is involved; third, when
constitutional issue raised requires formulation of controlling principles to
guide the bench, the bar, and the public; and fourth, the case is
capable ofrepetition yet evading review.
A perusal of the cases cited, however, readily reveals that the subject matters
thereof involved justiciable controversies. In Dela Camara, for example, there
was the challenged order approving an application for bail bond but at an
excessive amount. The case was rendered moot by the issuance of a
subsequent order reducing the amount. In Gonzales, the petition questioning the
validity of the creation of the CCP Complex by then President Marcos via an
executive order which was viewed as a usurpation oflegislative power was
mooted by the issuance of a presidential decree upon the declaration of martial
law. In Lacson, assailed was the issuance of Proclamation No. 36 declaring a
state of rebellion; in Albania, the petition to nullify the decision of the COMELEC
annulling the proclamation of petitioner as municipal mayor was rendered moot
by the election and proclamation of a new set of municipal officers; in Acop, the
petition to exclude two police officers from the Witness Protection Program was
rendered moot by the fact that the coverage of the two officers under the
program was terminated; and in David, the petition challenging the
validity of Presidential Proclamation (PP) 1017 declaring a state of emergency
was rendered moot by the issuance of PP 1021 declaring that the
state of national emergency has ceased.
The element of justiciable controversy is palpably absent in the petitions at bar.
For, as earlier explained, there is really no MOA-AD to speak of since its
perfection or effectivity was aborted by supervening events, to wit: the TRO the
Court issued enjoining the Kuala Lumpur signing of the MOA and the subsequent
change of mind of the President not to sign and pursue the covenant. To repeat,
there is, from the start, or from the moment the first petition was interposed, no
actual justiciable controversy to be resolved or dismissed, the MOA-AD having
been unsigned. Be that as it may, there can hardly be any constitutional issue
based on actual facts to be resolved with finality, let alone a grave violation of the
Constitution to be addressed. Surely the Court cannot reasonably formulate
guiding and controlling constitutional principles, precepts, doctrines or rules for
future guidance of both bench and bar based on a non-existing ancestral domain
agreement or by anticipating what the executive department will likely do or
agree on in the future in the peace negotiating table. AIaDcH
Some of my esteemed colleagues in the majority have expressed deep concern
with the ramifications of a signed MOA-AD. Needless to stress, their
apprehension as to such ramifications is highly speculative. Thus, judicial inquiry,
assuming for the nonce its propriety, has to come later, again assuming that the
peace instrument is eventually executed and challenged. At its present unsigned
shape, the MOA-AD can hardly be the subject of a judicial review.
The allegations of unconstitutionality are, for now, purely conjectural. The MOA-
AD is only a part of a lengthy peace process that would eventually have
culminated in the signing of a Comprehensive Compact. Per my count, the MOA-
AD makes reference to a Comprehensive Compact a total of eight times. The last
paragraph of the MOA-AD even acknowledges that, before its key provisions
come into force, there would still be more consultations and deliberations needed
by the parties, viz.: AaCcST
Matters concerning the details of the agreed consensus [point] on
Governance not covered under this Agreement shall be deferred to, and
discussed during, the negotiations of the Comprehensive Compact.
Separation of Powers to be Guarded
Over and above the foregoing considerations, however, is the
matter of separation of powers which would likely be disturbed should the Court
meander into alien territory ofthe executive and dictate how the final shape of the
peace agreement with the MILF should look like. The
system of separation of powers contemplates the division of the
functions of government into its three (3) branches: the legislative which is
empowered to make laws; the executive which is required to carry out the law;
and the judiciary which is charged with interpreting the law. 20 Consequent to the
actual delineation of power, each branch of government is entitled to be left alone to
discharge its duties as it sees fit. 21 Being one such branch, the judiciary, as Justice
Laurel asserted in Planas v. Gil,22 22 "will neither direct nor restrain executive [or
legislative action]". Expressed in another perspective, the system of separated powers
is designed to restrain one branch from inappropriate interference in the business, 23 or
intruding upon the central prerogatives, 24 ofanother branch; it is a blend of courtesy
and caution, "a self-executing safeguard against the encroachment or
aggrandizement of one branch at the expense of the other." 25 But this is what the
petitioners basically seek: through the overruling writs of the Court, to enjoin the
Philippine Peace Negotiating Panel, or its equivalent, and necessarily the President,
from signing the proposed MOA-AD and from negotiating and executing in the future
similar agreements. The sheer absurdity of the situation where the hands ofexecutive
officials, in their quest for a lasting and honorable peace, are sought to be tied lest they
agree to something irreconcilable with the Constitution, should not be lost on the Court.
Under our constitutional set up, there cannot be any serious dispute that the
maintenance of the peace, insuring domestic tranquility 26 and the
suppression of violence are the domain and responsibility of the executive. 27 Now then,
if it be important to restrict the great departments of government to the exercise of their
appointed powers, it follows, as a logical corollary, equally important, that one branch
should be left completely independent of the others, independent not in the sense that
the three shall not cooperate in the common end of carrying into effect the
purposes of the constitution, but in the sense that the acts of each shall never be
controlled by or subjected to the influence of either of the branches. 28
Favorably accommodating the petitioners under the premises cannot but be
viewed as an indirect attempt on the part of the Court to control and dictate on
the peace prerogatives of the executive branch, and in the process unduly
impairing that branch in the performance of its constitutional duties. It will distort
the delicate balance ofgovernance which the separation of powers seeks to
safeguard. AaSIET
One Last Word
The Executive Secretary has categorically declared that the government will not
sign the MOA-A, 29 which, as couched, may indeed be constitutionally frail or legally
infirm. But the more important point is that the challenged agreement is an unsigned
document without effect and force whatsoever. It conveys no right to and imposes no
correlative obligation on either negotiating party. As an unsigned writing, it cannot be
declared unconstitutional, as some of my colleagues are wont to do. SEIcHa
Accordingly, I vote to DENY the petitions. The factual and legal situations call for
this disposition.
NACHURA, J., dissenting:
I respectfully dissent from the ponencia of Justice Carpio-Morales, even as I
agree with its holding that the MOA-AD is not an international agreement or
unilateral declaration binding on the Philippines under international law.
Statement of the Case
We are confronted with various petitions assailing the constitutionality of the
Memorandum of Agreement on Ancestral Domain (MOA-AD) between the
respondent Government of the Republic of the Philippines Peace Panel
(GRP), 1 and the Moro Islamic Liberation Front (MILF), 2 to wit:
1.a petition for Prohibition and Mandamus with prayer for the issuance of a
Writ of Preliminary Injunction and Temporary Restraining Order (TRO) docketed
as G.R. No. 183591, filed by the province of North Cotabato 3 against
respondents GRP, Gen. Hermogenes Esperon, Jr., 4 and Secretary Eduardo
Ermita, 5 enjoining this Court to: (a) compel respondents to disclose the contents of the
MOA-AD, (b) prohibit respondents from formally signing the MOA-AD, or, in the
alternative, (c) declare the initialed MOA-AD as unconstitutional; TIcEDC

2.a petition for Prohibition and Mandamus with urgent prayer for the
issuance of a Writ of Preliminary Injunction and/or Temporary Restraining Order
docketed as G.R. No. 183752 filed by the City Government of Zamboanga, et
al., 6 against respondents (except Sec. Ermita), enjoining this Court to: (a) compel
respondents to disclose the contents of the MOA-AD, (b) prohibit respondents from
signing the MOA-AD, (c) exclude the City of Zamboanga from being part of the
Bangsamoro Juridical Entity (BJE), subject-matter of the MOA-AD, or, should the MOA-
AD be signed, (d) declare it as null and void.
3.a petition for Injunction and/or Declaratory Relief with prayer for the
issuance of a Writ of Preliminary Injunction and/or Temporary Restraining Order
docketed as G.R. No. 183893 filed by the City of Iligan 7 against respondents,
enjoining this Court to: (a) enjoin respondents from signing the MOA-AD, or, in the
alternative, from implementing the same, and (b) declare the MOA-AD as
unconstitutional;
4.a petition for Certiorari, Mandamus and Prohibition with prayer for
issuance of Writ of Injunction and/or Temporary Restraining Order docketed as
G.R. No. 183951 filed by provincial government of Zamboanga Del Norte, 8 Rep.
Cecilia Jalosjos Carreon, 9 Rep. Cesar G. Jalosjos, 10 and Seth Frederick Jalosjos,
Fernando R. Cabigon, Jr., Uldarico Mejorada II, Edionar Zamoras, Edgar J. Baguio,
Cedric Adriatico, Felixberto Bolando, Joseph Brendo Ajero, Norbideiri Edding, Anecito
Darunday, Angelica Carreon, and Luzviminda Torrino 11 against respondents (except
Sec. Ermita), enjoining this Court to: (a) declare the MOA-AD as null and void and
without operative effect, and (b) restrain respondents from executing the MOA-AD.
5.a petition for Prohibition filed by Ernesto Maceda, Jejomar Binay, and Aquilino
L. Pimentel III against respondents (except Gen. Esperon and Sec. Ermita) and
the MILF Peace Negotiating Panel, 12 enjoining this Court to: (a) prohibit and
permanently enjoin respondents from formally signing the MOA-AD or any other
agreement derive therefrom or with terms similar thereto as well as from executing
any of its provisions, and (b) nullify the MOA-AD for being contrary to the Constitution
and the laws;
6.a petition-in-intervention for Prohibition filed by Hon. Marino Ridao and Kisin
Buxani, residents of Cotabato City, lodged with the
petitions of the Province of Cotabato and the City of Zamboanga in G.R. Nos.
183591 and 183752, enjoining this Court to: (a) prohibit respondents from signing
the MOA-AD, (b) declare the MOA-AD as null and void, or, in the alternative, (c)
exclude all the thirty-seven (37) barangays of Cotabato City from the
coverage of the BJE territory; ATcEDS
7.a petition-in-intervention for Prohibition, Mandamus and Injunction filed by the
Municipality of Linamon, 13 enjoining this Court to: (a) permanently restrain
respondents from signing the MOA-AD, or (b) permanently restrain respondents from
implementing the initialed MOA-AD, if and when the MILF insists on its enforcement,
and (c) declare the MOA-AD as unconstitutional.
8.a petition-in-intervention for Prohibition filed by the City Government of Isabela,
Basilan Province, 14 enjoining this Court to: (a) prohibit respondents from signing the
MOA-AD, in the alternative, (b) declare the MOA-AD as null and void, and (c) exclude
all the forty-five (45) barangays of the City of Isabela from the BJE territory;
9.a petition-in-intervention for Prohibition filed by the province of Sultan
Kudarat, 15 enjoining this Court to: (a) prohibit respondents from signing the MOA-AD,
(b) declare the MOA-AD as null and void, and (c) exclude the two hundred fourteen
(214) barangays of Sultan Kudarat Province from the BJE territory; aAHSEC
10.a petition-in-intervention for Prohibition filed by members of the bar Carlos
Gomez, Gerardo Dilig, Nesario Awat, Joselito Alisuag, and Richalez Jagmis, all
from Puerto Princesa City, Palawan, enjoining this Court to: (a) prohibit
respondents from implementing the MOA-AD which they had signed with the
MILF Peace Negotiating Panel, in the alternative, (b) declare the MOA-AD as null
and void, and (c) exclude the Province of Palawan and the
Municipalities of Bataraza and Balabac from the BJE territory;
11.a petition-in-intervention for Prohibition filed by Ruy Elias Lopez as a
member of the Bagobo tribe of indigenous people living in Mindanao, enjoining
this Court to: (a) permanently enjoin respondents from signing the MOA-AD, and,
in the alternative, (b) declare the MOA-AD as unenforceable against other
indigenous peoples;
12.a petition-in-intervention for Mandamus and Prohibition filed by Senator
Manuel Roxas, enjoining this Court to: (a) direct respondents to publicly reveal or
disclose the contents of the MOA-AD, including all documents pertinent, related,
attached thereto, and order respondents to furnish petitioner-in-intervention Sen.
Roxas with the draft and/or final, complete, official, and initialed copies of said
MOA-AD, and (b) command respondents from acting on and signing and
implementing the MOA-AD; and
13.a petition-in-intervention for Prohibition filed by former Senator Franklin Drilon
and Atty. Adel Tamano, enjoining this Court to prohibit and permanently enjoin
respondents from further signing, executing, and entering into the MOA-AD or
any other agreement with terms similar to the MOA and/or from proceeding or
implementing the MOA-AD.
These cases have been consolidated and jointly heard on oral argument by the
Court.
In all, the main petitions and the petitions-in-intervention bewail the lack of public
consultation and invoke violation of the people's right to information 16 in the
drafting of the MOA-AD. The numerous petitions pray for the following reliefs: SDAaTC
1.To prevent the signing of, and, in the alternative,
implementation of the initialed, MOA-AD;
2.To be furnished copies of the MOA-AD grounded on their right to
information on matters of public concern;
3.To exclude certain cities and barangays from the BJE territory;
4.To declare the MOA-AD as unconstitutional riddled as it is with
constitutional infirmities; and
5.As regards Intervenor Lopez, to declare the MOA-AD
unenforceable against indigenous peoples. AcaEDC
The Facts
Before anything else, however, the difficult facts leading to this cause celebre.
The advent of the 1987 Constitution captured and reflected our nation's quest for
true and lasting peace in Muslim Mindanao. The new constitution included
authority for the creation of an Autonomous Region of Muslim Mindanao
(ARMM). 17 This trailblazing legal framework was actually catalyzed, as early as 1976,
with the signing of the Tripoli Agreement in Libya between the GRP and the MNLF.
On August 1, 1989, Congress passed and approved Republic Act 6734 entitled
"An Act Providing for an Organic Act for the Autonomous Region in Muslim
Mindanao". Out ofthe thirteen (13) provinces and nine (9) cities subjected to a
plebiscite conducted on November 19, 1989, only four (4) provinces voted for
their inclusion in the ARMM, namely:Provinces of Maguindanao, Lanao Del Sur,
Sulu and Tawi-Tawi.
Then, on September 2, 1996, the almost elusive pursuit of peace appeared to be
within reach the GRP and the MNLF entered into and signed a total and final
peace agreement implementing the 1976 Tripoli Agreement entitled "The Final
Agreement on the Implementation of the 1976 Tripoli Agreement between the
Government of the Republic of the Philippines and the Moro National Liberation
Front". Consistent thereto, on March 31, 2001, Congress amended the first
Organic Act (R.A. 6734) and enactedR.A. 9054 for the expansion of the ARMM.
The plebiscite for the ratification of the amended Organic Act conducted on
August 14, 2001 resulted in the addition of BasilanProvince and Marawi City to
the original four (4) provinces comprising the ARMM. AHcCDI
Peace was almost at hand, but not quite. The MILF, a break-away faction of the
MNLF, wanted a separate peace. It rejected the final peace agreement between
the GRP and the MNLF, and continued their armed hostilities. Once again, in the
quest for lasting peace, the GRP initiated peace talks with the MILF. On July 18,
1997, the Agreement on the General Cessation of Hostilities was signed between
the GRP and the MILF Peace Panels. Next, on August 27, 1998, the General
Framework of Agreement of Intent was signed by both parties at the Dawah
Center, Crossing Simuay, Sultan Kudarat, Maguindanao.
All these agreements, notwithstanding, at the end of 1999 to 2000, the MILF
fortified its stronghold in forty-six (46) camps, attacked a number of municipalities
in Central Mindanao, and took control of the town hall of Kauswagan, Lanao Del
Norte. Government responded by twice declaring an "all-out war" against the
MILF. On April 30, 2000, the MILF unilaterally suspended the GRP-MILF Peace
Talks and, likewise, declared an all-out war against the GRP and ordered an all-
out offensive on Armed Forces of the Philippines (AFP) camps all over
Mindanao. Various attempts at a peace settlement were unsuccessful. TAIDHa
On February 28, 2001, President Arroyo issued Executive Order No. 3 defining
the policy and administrative structure for the government's comprehensive
peace effort, in relevant part:
Section 3.The Three Principles of the Comprehensive Peace
Process. The comprehensive peace process shall continue to be
governed by the following underlying principles:
a.A comprehensive peace process should be community-based,
reflecting the sentiments, values and principles important to all
Filipinos. Thus, it shall be defined not by the government alone,
nor by the different contending groups only, but by all Filipinos as
one community.
b.A comprehensive peace process aims to forge a new social
compact for a just, equitable, humane and pluralistic society. It
seeks to establish a genuinely pluralistic society, where all
individuals and groups are free to engage in peaceful competition
for predominance of their political programs without fear, through
the exercise of rights and liberties guaranteed by the Constitution,
and where they may compete for political power through an
electoral system that is free, fair and honest. CAaDSI

c.A comprehensive peace process seeks a principled and
peaceful resolution to the internal armed conflicts, with neither
blame nor surrender, but with dignity for all concerned.
Section 4.The Six Paths to Peace. The components of the
comprehensive peace process comprise the processes known as the
"Paths to Peace". These components processes are interrelated and not
mutually exclusive, and must therefore be pursued simultaneously in a
coordinated and integrated fashion. They shall include, but may not be
limited to, the following:
a.PURSUIT OF SOCIAL, ECONOMIC AND POLITICAL
REFORMS. This component involves the vigorous
implementation of various policies, reforms, programs and
projects aimed at addressing the root causes of internal armed
conflicts and social unrest. This may require administrative action,
new legislation, or even constitutional amendments.
b.CONSENSUS-BUILDING AND EMPOWERMENT FOR
PEACE. This component includes continuing consultations on
both national and local levels to build consensus for a peace
agenda and process, and the mobilization and
facilitation of people's participation in the peace process.
c.PEACEFUL, NEGOTIATED SETTLEMENT WITH THE
DIFFERENT REBEL GROUPS. This component involves the
conduct of face-to-face negotiations to reach peaceful settlement
with the different rebel groups. It also involves the effective
implementation of peace agreements.
d.PROGRAMS FOR RECONCILIATION, REINTEGRATION
INTO MAINSTREAM SOCIETY AND REHABILITATION. This
component includes programs to address the legal status and
security of former rebels, as well as community-based assistance
programs to address the economic, social and psychological
rehabilitation needs of former rebels, demobilized combatants and
civilian victims of the internal armed conflicts.
e.ADDRESSING CONCERNS ARISING FROM CONTINUING
ARMED HOSTILITIES. This component involves the strict
implementation of laws and policy guidelines, and the
institution of programs to ensure the protection of non-combatants
and reduce the impact of the armed conflict on communities found
in conflict areas.
f.BUILDING AND NURTURING A CLIMATE CONDUCIVE TO
PEACE. This component includes peace advocacy and peace
education programs, and the implementation of various
confidence-building measures.
In addition thereto, President Arroyo issued Memorandum of Instructions to
the GRP Peace Panel providing the General Guidelines on the Peace Talks
with the MILF. TSDHCc
On April 3, 2001, as a consequence of the signing of the Agreement on the
General Framework for the Resumption of Peace Talks between the GRP and
the MILF on March 24, 2001, in Kuala Lumpur, Malaysia, the MILF suspended all
military actions in their areas of operation.
Subsequently, two (2) rounds of Formal Peace Talks occurred in June 20-22,
2001 and August 5-7, 2001, respectively, with the latter resulting in the
signing of the Implementing Guidelines on the Security Aspect of the GRP-MILF
Tripoli Agreement on Peace of 2001 and effectively placing the parties on a
cease-fire status. This agreement contained three (3) strands, specifically: (1) the
Security Aspect; (2) Humanitarian, Rehabilitation and Development Aspects; and
(c) the Ancestral Domain Aspect. And as previously stated, R.A. 9054 amending
the Organic Act was ratified with the inclusion of Basilan Province and Marawi
City in the ARMM.
Yet, incidences of violence and violation of the cease-fire pact by the MILF
continued to occur. On July 19, 2003, the GRP and the MILF once again agreed
to a cessation ofhostilities and resume peace talks. In connection therewith, on
September 2, 2003, President Arroyo issued Memorandum of Instructions to
the GRP Peace Panel, i.e., Revised General Guidelines on the Peace Talks with
the Moro Islamic Liberation Front. ECSHAD
Therefrom, the continuation of several rounds of previously held exploratory talks
was held on June 20-21, 2005 at Kuala Lumpur, Malaysia and resulted in the
forging of clear parameters and principles to be pursued on the Governance
Strand (Aspect) of the Ancestral Domain. This was followed by another
round of Exploratory Talks on September 15-16, 2005 also in Kuala Lumpur,
Malaysia, where both panels adopted the points on the same
strand/aspect of Ancestral Domain provided in the Peace Agreement of 2001
between the GRP and the MILF.
The peace process finally culminated in the drafting of the subject MOA-AD
intended to be signed in Kuala Lumpur, Malaysia on August 5, 2008.
News report began to appear on the contents of the MOA-AD and its scheduled
signing on August 5, 2008. Main petitioners, except petitioners in G.R. No.
183962, all scrambled to procure a copy of the draft of this MOA-AD. Inability to
secure copies thereof and a categorical response from respondent GRP,
prompted the filing of these petitions. On the eve of the scheduled signing, by
Resolution dated August 4, 2008, we issued a Temporary Restraining Order
commanding and directing respondents and their agents to cease and desist
from formally signing the MOA-AD. We likewise required the Office of the
Solicitor General (OSG) to submit to the Court and petitioners the official
copy of the final draft of the MOA-AD. On August 8, 2008, the OSG filed its
Compliance with our Resolution. ASICDH
Meanwhile, outbreak of violence occurred in some of the herein petitioner local
government units. Oral arguments were held on August 15, 22, & 29, 2008. On
August 19, 2008, the OSG filed a Manifestation and Motion to Dismiss the
petitions on the ground that the Executive Department has declared it will
thoroughly review MOA-AD and pursue further negotiations addressing all
objections hurled against said document. The OSG's motion was greatly
opposed by the petitioners.
On August 28, 2008, the Executive Department pronounced that it would no
longer sign the MOA-AD. On the last day of the oral arguments, Madame
Solicitor General, on interpellation, declared that the Executive Department,
specifically, respondent Sec. Ermita has declared that the MOA-AD "will not be
signed in this form, or in any other form". Moreover, on September 3, 2008,
President Arroyo dissolved the GRP Peace Panel. Finally, in compliance to the
Court's directive upon termination of the oral arguments, the parties submitted
their respective Memoranda.
Petitioners and petitioners-in-intervention maintain that despite the supervening
events and foregoing declarations and acts of the Executive Department, there
remains a justiciable controversy, a conflict of legal rights by the parties that
ought to be adjudicated by this Court. They asseverate that, supervening events
notwithstanding, the cases at bench have not been mooted, or, even if so, the
issues they raised fall within the exceptions to the moot and academic principle.
Consequently, even with the dissolution ofthe GRP Peace Panel and the positive
and unequivocal declaration by the Executive Department that the MOA-AD will
not be signed in this form or in any other form, the constitutionality of the MOA-
AD may still be ruled upon.
At the other end of the spectrum, however, the OSG is adamant that this
contentious MOA-AD is, in fact, only a codification of "consensus points" and
does not, in any way, create rights and obligations that must be declared infirm,
and thus, is not ripe for adjudication by this Court. Furthermore, the OSG insists
that the petitions and petitions-in-intervention must be dismissed on the
ground of mootness, supervening events having rendered the assailed MOA-AD
inexistent and all the reliefs prayed for satisfied and fulfilled. In addition, the OSG
argues that a ruling by this Court on the constitutionality of the MOA-AD violates
the doctrine of separation of powers as the negotiation of the MOA-AD is
embraced in the President's powers and in the nature of a political question,
outside the pale of judicial review. cESDCa
The Issues
From the pleadings and as delineated on oral arguments, the issues raised are
both procedural and substantive, namely:
1.Procedural
(i)Whether petitioners and petitioners-in-intervention have locus
standi;
(ii)Whether the petitions and petitions-in-intervention continue to
present a justiciable controversy still ripe for adjudication;
and TIaCcD
(iii)Whether the petitions and petitions-in-intervention have
become moot and academic.
2.Substantive
(i)Whether the MOA-AD is unconstitutional;
(ii)Whether the GRP Peace Panel (respondents) committed grave
abuse of discretion amounting to lack or
excess of jurisdiction when it negotiated and initialed the
MOA-AD.
I submit that because of supervening events, the petitions and petitions-in-
intervention are no longer ripe for adjudication and that these cases have been
rendered moot and academic. Accordingly, the petitions should be dismissed.
I.PROCEDURAL
i.Locus Standi
Our pronouncements in David v. Macapagal-Arroyo 18 are instructive:
The difficulty of determining locus standi arises in public suits. Here,
the plaintiff who asserts a public right in assailing an allegedly illegal
official action, does so as a representative of the general public. He may
be a person who is affected no differently from any other person. He
could be suing as a stranger, or in the category of a citizen, or taxpayer.
In either case, he has to adequately show that he is entitled to seek
judicial protection. In other words, he has to make out a sufficient
interest in the vindication of the public order and the securing of relief as
a citizen or taxpayer. HITEaS
xxx xxx xxx
However, to prevent just about any person from seeking judicial
interference in any official policy or act with which he disagreed with, and
thus hinders the activitiesof governmental agencies engaged in public
service, the United States Supreme Court laid down the more
stringent direct injury test in Ex Parte Levitt, later reaffirmed in Tileston
v. Ullman. The same Court ruled that for a private individual to invoke
the judicial power to determine the validity of an executive or legislative
action, he must show that he has sustained a direct injury as a
result of that action, and it is not sufficient that he has a general
interest common to all members of the public.

This Court adopted the direct injury test in our jurisdiction. In People v.
Vera, it held that the person who impugns the validity of a statute must
have a personal and substantial interest in the case such that he
has sustained, or will sustain direct injury as a result.
The Vera doctrine was upheld in a litany of cases, such as,Custodio v.
President of the Senate, Manila Race Horse Trainers Association v. De
la Fuente, Pascual v. Secretary of Public Works and Anti-Chinese
League of the Philippines v. Felix.
However, being a mere procedural technicality, the requirement of locus
standi may be waived by the Court in the exercise of its discretion. This
was done in the 1949 Emergency Powers Cases, Araneta v.
Dinglasan, where the transcendental importance of the cases
prompted the Court to act liberally. Such liberality was neither a rarity nor
accidental. In Aquino v. Comelec, this Court resolved to pass upon the
issues raised due to the far-reaching implications of the petition
notwithstanding its categorical statement that petitioner therein had no
personality to file the suit. Indeed, there is a chain of cases where this
liberal policy has been observed, allowing ordinary citizens,
members of Congress, and civic organizations to prosecute actions
involving the constitutionality or validity of laws, regulations and rulings.
xxx xxx xxx
By way of summary, the following rules may be culled from the cases
decided by this Court. Taxpayers, voters, concerned citizens, and
legislators may be accorded standing to sue, provided that the following
requirements are met:
(1)the cases involve constitutional issues;
(2)for taxpayers, there must be a claim of illegal
disbursement of public funds or that the tax measure is
unconstitutional;
(3)for voters, there must be a showing of obvious interest in the
validity of the election law in question;
(4)for concerned citizens, there must be a showing that the
issues raised are of transcendental importance which must
be settled early; and aATHES
(5)for legislators, there must be a claim that the official action
complained of infringes upon their prerogatives as
legislators.
The test we have laid down is whether the party has alleged such a personal
stake in the outcome of the controversy as to assure that concrete adverseness
which sharpens the presentation of issues upon which the court so largely
depends for illumination of difficult questions. 19 When an individual sues as a
citizen, he must allege that he has been or is about to be subjected to some burdens or
penalties by reason of the statute or act complained of. 20 When the issue concerns a
public right, it is sufficient that the petitioner is a citizen and has an interest in the
execution of the laws. 21 ISAcHD
The petitioners and petitioners-in-intervention claim locus standi with their
invocation of the transcendental importance of the issues involved and their
assertion of public rights to information and to consultation.
Considering that the Court has discretion to relax this procedural technicality, and
given the liberal attitude it has adopted in a number of earlier cases, we
acknowledge the legal standing of the petitioners herein.
ii.Ripeness for Adjudication
A mandatory requirement for the Court's exercise of the power of judicial review
is the existence of an actual case or controversy. An actual case or controversy
is a conflict oflegal rights, an assertion of opposite legal claims which can be
resolved on the basis of existing law and jurisprudence. 22 The controversy must
be definite and concrete, bearing upon the legal relations of parties who are pitted
against each other due to their adverse legal interests. 23
But it is not enough that the controversy exists at the outset. To qualify for
adjudication, it is necessary that the actual controversy be extant at all
stages of review, not merely at the time the complaint is filed. 24 This is to say that
the case is ripe for judicial determination.
In Guingona v. Court of Appeals, 25 we had occasion to declare:
Closely related to the requirement of "actual case", Bernas continues, is
the second requirement that the question is "ripe" for adjudication. A
question is ripe for adjudication when the act being challenged has had a
direct adverse effect on the individual challenging it. Thus, in PACU v.
Secretary of Education, the Court declined to pass judgment on the
question of the validity of Section 3 of Act No. 2706, which provided that
before a private school may be opened to the public, it must first obtain a
permit from the secretary of education, because all the petitioning
schools had permits to operate and were actually operating, and
none of them claimed that the secretary had threatened to revoke their
permit. EcICDT
In Tan v. Macapagal, the Court said that Petitioner Gonzales "had the
good sense to wait" until after the enactment of the statute [Rep. Act No.
4913 (1967)] requiring the submission to the electorate of certain
proposed amendments to the Constitution [Resolution Nos. 1 and
3 of Congress as a constituent body (1967)] before he could file his suit.
It was only when this condition was met that the matter became ripe for
adjudication; prior to that stage, the judiciary had to keep its hands off.
The doctrine of separation of powers calls for each
branch of government to be left alone to discharge its duties as it sees
fit. Being one such branch, the judiciary, Justice Laurel asserted, "will
neither direct nor restrain executive [or legislative action] . . . ." The
legislative and the executive branches are not allowed to seek advice on
what to do or not to do; thus, judicial inquiry has to be postponed in the
meantime. Before a court may enter the picture, a prerequisite is that
something has been accomplished or performed by either branch.
Then may it pass on the validity of what has been done but, then again,
only "when . . . properly challenged in an appropriate legal
proceeding". DcIHSa
In the case at bench, there is no gainsaying that at the time of the filing of the
initial petitions up to the issuance by this Court of the Temporary Restraining
Order, there was an actual extant controversy. The signing of the MOA-AD in
Malaysia had been scheduled; several foreign dignitaries were invited to grace
the ceremony. The timeliness of the exercise of power by the Court may have
prevented a possible constitutional transgression. It was so timely an
exercise of judicial review over an actual controversy by the Court such that it
may have provided the impetus sufficient for the Executive Department to
"review" its own acts, and to decide, subsequently, to abort the entire MOA-AD.
However, supervening events effectively eliminated the conflict of rights and
opposite legal claims. There is no longer an actual case or controversy between
the parties. TheGRP Peace Panel, respondents in these consolidated cases, has
been disbanded by the President, along with the resounding declaration that "the
MOA-AD will not be signed in its present form, or in any other form". The
Memorandum issued by Executive Secretary Ermita to the Solicitor General is
unequivocal: "No matter what the Supreme Court ultimately decides, the
government will not sign the MOA".
The subsequent events were sufficient to alter the course of these judicial
proceedings. The President's decision not to sign the MOA-AD may even be
interpreted as a rectification of flawed peace negotiations by the panel. But to this
Court, it is clearly a supervening event that affects the ripeness of the case for
adjudication. With an abandoned and unsigned MOA-AD and a dissolved peace
Panel, any purported controversy has virtually disappeared. Judicial review
cannot be exercised where the incipient actual controversy does not remain
extant until the termination of the case; this Court cannot provide reliefs for
controversies that are no longer there.
After the mandamus aspect of the initial petitions had been satisfied, what
remains are basically the petitions for certiorari and prohibition. 26 The reliefs
prayed for include the declaration of nullity of the MOA-AD and the prohibition on the
members of the Peace Panel from signing the MOA-AD.
These reliefs are unavailing, because the peace Panel has been dissolved and,
by the nature of things, rendered permanently unable to sign any agreement. On
the other hand, the MOA-AD sought to be nullified does not confer any rights nor
impose any duties. It is, as of today, non-existent.
In Montesclaros v. COMELEC, 27 we held that a proposed bill is not subject to
judicial review, because it is not a law. A proposed bill creates no right and imposes no
duty legally enforceable by the Court. A proposed bill having no legal effect violates no
constitutional right or duty. The Court has no power to declare a proposed bill
constitutional or unconstitutional because that would be in the nature of rendering an
advisory opinion on a proposed act of Congress. This ruling finds a parallel in a
proposed agreement to be entered into by the Executive Department which has been
aborted, unsigned, and "will not be signed in its present form or in any other form". TEHIaA
iii.Mootness
A moot and academic case is one that ceases to present a justiciable
controversy by virtue of supervening events, so that a declaration thereon would
be of no practical value. Generally, courts decline jurisdiction over such case, or
dismiss it on ground of mootness. 28
Thus, in Gonzales v. Narvasa, 29 where the constitutionality of the creation of the
Preparatory Commission on Constitutional Reform (PCCR) was questioned, the Court
dismissed the petition because by then, the PCCR had ceased to exist, having finished
its work and having submitted its recommendations to then President Estrada. In Abbas
v. COMELEC, 30 we refused to rule on a perceived potential conflict between
provisions of the Muslim Code and those of the national law.

However, it is axiomatic that courts will decide cases, otherwise moot and
academic, if: first, there is a grave violation of the Constitution; second, the
exceptional character ofthe situation and the paramount public interest
involved; third, when the constitutional issue raised requires
formulation of controlling principles to guide the bench, the bar and the public;
or fourth, when the case is capable of repetition yet evasive of review. 31
As to the first exception, there is no violation of the Constitution that will justify
judicial review despite mootness, because the MOA-AD has not been signed
and will not be signed. The eminent Justice Antonio T. Carpio, in his separate
opinion, even as he expressed fears of numerous "drastic changes" in the
Constitution, acknowledges that these will take place only IF the MOA-AD will be
signed. The scholarly ponencia concludes with the finding that the MOA-AD is
unconstitutional, obviously referring to its provisions. So does the separate
opinion of Justice Ruben T. Reyes. But, to repeat, the MOA-AD is, as of today,
non-existent. Thus, as it is, these dreaded constitutional infractions are, at best,
anticipatory, hypothetical or conjectural.
Neither will the second exception apply. The issue of paramount public interest
will arise only IF the MOA-AD is signed. With the Peace Panel dissolved, and
with the unequivocal pronouncement of the President that the MOA-AD will not
be signed, there is no occasion to speak of the exceptional or extraordinary
character of the controversy as would render the case ripe for resolution and
susceptible of judicial determination. aDcTHE
Given the events that led to the issuance by the Court of a TRO in order to stop
the signing of the MOA-AD in Malaysia on August 5, 2008, it would appear that
there is a need for the Court to formulate controlling principles, precepts and
rules to guide the bench, the bar and the public particularly a peace negotiating
panel in future peace talks. However, a scrutiny of the factual
antecedents of this case reveals that no such imperative exists.
It is well to note that Executive Order No. 3, which created the GRP Peace
Panel, explicitly identifies the Constitution as the basic legal framework for the
peace negotiations. It states that the GRP Peace Panel was created with the
primary objective to attain "a just, comprehensive and enduring peace under a
rule of law and in accordance with constitutional processes", 32 with "a need to
further enhance the contribution of civil society to the comprehensive peace process by
institutionalizing the people's participation".33 The same Executive Order provides
sufficient standards to guide the GRP Peace Panel in the performance of its avowed
work.
Then, there is the March 1, 2001 Memorandum of Instructions from the
President, followed by the Memorandum of Instructions dated September 8,
2003. Common to the instructions is the provision that the negotiation shall be
conducted "in accordance with the mandate of the Constitution, the Rule of Law,
and the Principles of Sovereignty and Territorial Integrity of the Republic of the
Philippines". These are adequate guidelines for the GRP Peace panel; it would
be superfluous for the Court to issue guidelines which, presumably, will be similar
to the ones already in existence, aside from possibly trenching on the
constitutional principle of separation of powers. ScaHDT
If the respondents-members of the GRP Peace Panel, in the conduct of the
negotiation, breached these standards or failed to heed the instructions, it was
not for lack ofguidelines. In any event, the GRP Peace Panel is now disbanded,
and the MOA-AD unsigned and "not to be signed". There is no necessity for this
Court to issue its own guidelines as these would be, in all probability,
repetitive of the executive issuances.
The fourth exception, that the issue is "capable of repetition yet
evasive of review", is likewise inapplicable in this case. In this connection, we
recall Sanlakas v. Reyes, 34 where the Court dismissed the petitions which assailed
as unconstitutional Proclamation No. 427, declaring a state of rebellion, and General
Order No. 4, after the President had issued Proclamation No. 435 declaring that the
state of rebellion had ceased to exist.
Apart from the brilliant ponencia of Justice Dante O. Tinga, particularly
illuminating is the separate opinion of Chief Justice Artemio V. Panganiban when
he wrote:
While the Petitions herein have previously embodied a live case or
controversy, they now have been rendered extinct by the lifting of the
questioned issuances. Thus,nothing is gained by breathing life into a
dead issue.
Moreover, without a justiciable controversy, the Petitions have become
pleas for declaratory relief, over which the Supreme Court has
no original jurisdiction. Be it remembered that they were filed directly
with this Court and thus invoked its original jurisdiction.
On the theory that the "state of rebellion" issue is "capable of repetition
yet evading review", I respectfully submit that the question may indeed
still be resolved even after the lifting of the Proclamation and
Order, provided the party raising it in a proper case has been and/or
continue to be prejudiced or damaged as a direct result of their
issuance. ESDHCa
In the present case, petitioners have not shown that they have been or
continue to be directly and pecuniarily prejudiced or damaged by the
Proclamation and Order. Neither have they shown that this Court has
original jurisdiction over petitions for declaratory relief. I would venture to
say that, perhaps, if this controversy had emanated from
an appealed judgment from a lower tribunal, then this Court may still
pass upon the issue on the theory that it is "capable of repetition yet
evading review", and the case would not be an original action for
declaratory relief.
In short, the theory of "capable of repetition yet evading review"
may be invoked only when this Court has jurisdiction over the
subject matter. It cannot be used in the present controversy for
declaratory relief, over which the Court has no original jurisdiction.
Given the similar factual milieu in the case at bench, I submit that judicial
review of the instant controversy cannot be justified on the principle that the issue
is "capable ofrepetition yet evasive of review". IDCHTE
II.SUBSTANTIVE
I respectfully submit that the Court should view this case from the
perspective of executive power, and how it was actually exercised in the
formulation of the GRP Peace Panel until the challenged MOA-AD was crafted in
its present abandoned form.
The President is the Chief Executive of the Republic and the Commander-in-
Chief of the armed forces of the Philippines.
Section 1, Article VII of the Philippine Constitution provides: "The executive
power shall be vested in the President of the Philippines". Additionally, Section
18, Article VII, states:
Sec. 18.The President shall be the Commander-in-Chief of all armed
forces of the Philippines and whenever it becomes necessary, he may
call out such armed forces to prevent or suppress lawless violence,
invasion or rebellion. In case of invasion or rebellion, when the public
safety requires it, he may, for a period not exceeding sixty days,
suspend the privilege of the writ of habeas corpus or place the
Philippines or any part thereof under martial law. Within forty-eight hours
from the proclamation of martial law or the suspension of the
privilege of the writ of habeas corpus, the President shall submit a report
in person or in writing to the Congress. The Congress, voting jointly, by a
vote of at least a majority of all its Members in regular or special session,
may revoke such proclamation or suspension which revocation shall not
be set aside by the President. Upon the initiative of the President, the
Congress may, in the same manner, extend such proclamation or
suspension for a period to be determined by the Congress, if the
invasion or rebellion shall persist and public safety requires it. HIETAc
In Sanlakas v. Reyes, 35 we held that the above provision grants the President, as
Commander-in-Chief, a sequence of graduated powers, to wit: (1) the calling out power,
(2) the power to suspend the privilege of the writ of habeas corpus, and (3) the power to
declare martial law. Thus:
In the exercise of the latter two powers, the Constitution requires the
concurrence of two conditions, namely, an actual invasion or rebellion,
and that public safety requires the exercise of such power. However, as
we observed in Integrated Bar of the Philippines v. Zamora, "[t]hese
conditions are not required in the exercise ofthe calling out power. The
only criterion is that 'whenever it becomes necessary', the President may
call the armed forces 'to prevent or suppress lawless violence, invasion
or rebellion.'"
Implicit in these is the President's power to maintain peace and order. In fact, in
the seminal case of Marcos v. Manglapus, 36 we ruled:
[T]his case calls for the exercise of the President's powers as
protector of the peace. The power of the President to keep the peace is
not limited merely to exercising the commander-in-chief powers in
times of emergency or to leading the State against external and internal
threats to its existence. The President is not only clothed with
extraordinary powers in times of emergency, but is also tasked with
extraordinary powers in times of emergency, but is also tasked with
attending to the day-to-day problems of maintaining peace and order
and ensuring domestic tranquility in times when no foreign foe appears
on the horizon. Wide discretion, within the bounds of law, in fulfilling
presidential duties in times of peace is not in any way diminished by the
relative want of an emergency specified in the commander-in-chief
provision. For in making the President commander-in-chief the
enumeration of powers that follow cannot be said to exclude the
President's exercising as Commander-in-Chief powers short of the
calling of the armed forces, or suspending the privilege of the
writ of habeas corpus or declaring martial law, in order to keep the
peace, and maintain public order and security.

Undoubtedly, then, the President has power to negotiate peace with the MILF,
and to determine in what form and manner the peace process should be
conducted. IcTCHD
In the exercise of this power, the President issued Executive Order No. 3, where
she mapped out the principles to be followed in the comprehensive peace
process: (a) community-based and defined by all Filipinos as one community, (b)
a new social compact establishing a genuinely pluralistic society, and (c) a
principled and peaceful resolution to the internal armed conflicts. 37 In Section 4
thereof, the president identified the 6 paths to peace, with processes being interrelated
and not mutually exclusive, and must be pursued simultaneously in a coordinated and
integrated fashion: (a) pursuit of social, economic and political reforms, (b) consensus-
building and empowerment for peace, (c) peaceful, negotiated settlement with the
different rebel groups, (d) programs for the reconciliation, reintegration into mainstream
society and rehabilitation, (e) addressing concerns arising from continuing armed
hostilities, and (f) building and nurturing a climate conducive to peace.
Executive Order No. 3, together with the Memorandum of Instructions of March
1, 2001 and the Memorandum of Instructions of September 8, 2003, constitutes
the mandateof the GRP Peace panel. It was within the parameters of this
mandate that the GRP Peace panel was to negotiate with the MILF and arrive at
a Comprehensive Peace Agreement. It was pursuant to these strictures that the
MOA-AD was crafted, initialed and scheduled for signing.
Even as the petitioners and petitioners-in-intervention roundly condemn the
MOA-AD, as currently worded, to have violated constitutional and statutory
principles and assail the GRP Peace Panel for having acted with grave
abuse of discretion because of its failure to abide by its mandate it is
noteworthy they do not raise any question about the validity of Executive Order
No. 3 and the Instructions issued by the President.
Considering the events that have supervened since the filing of the initial petition
and the issuance by this Court of a TRO, it is suggested that the angle of vision
for the discussion of the substantive issues in this case should be from the
perspective of the relief/s that this Court can grant the parties, taking into account
their respective prayers. These are: TECIaH
1.Mandamus.
a)Three petitions and two petitions-in-intervention praying for a
writ of mandamus, to compel the production of the official copy of the
MOA-AD, the petitioners invoking their right to information. These
petitions are now mooted, because the requested documents have
already been produced.
b)Two respondents-intervenors who pray that the Executive Department
be directed to sign the MOA-AD and to continue with the peace
negotiations. With the definite pronouncement of the President that the
MOA-AD will not be signed in its present form or in any other form, this
prayer cannot be granted, because the Court cannot compel a party to
enter into an agreement.
2.Declaratory Relief. One petition for declaratory relief which may not
be granted because the Court has no original jurisdiction over petitions
for declaratory relief. 38
3.Certiorari and Prohibition. One petition for certiorari and twelve
petitions for prohibition, including the petitions-in-intervention, seek a
declaration of nullityof the MOA-AD (for being unconstitutional), a
writ of certiorari against the members of the GRP Peace Panel for
having acted with grave abuse of discretion, and a writ of prohibition to
prevent the signing of the MOA-AD. TaCDAH
There's the rub. Because the MOA-AD will not be signed "in its present form, or
in any other form", certiorari will not lie. The Court cannot review an inexistent
agreement, an unborn contract that does not purport to create rights or impose
duties that are legally demandable. Neither will the remedy of prohibition lie
against a GRP Peace Panel that no longer exists. To do so would be to flog a
dead horse.
The ponencia would wish to get around this inescapable truth by saying: "The
MOA-AD not being a document that can bind the Philippines under international
law notwithstanding, respondents' almost consummated act of guaranteeing
amendments to the legal framework is, by itself, sufficient to constitute grave
abuse of discretion".
With due respect, I beg to disagree. Grave abuse of discretion can characterize
only consummated acts (or omissions), not an "almost (but not quite)
consummated act". CDHSac
Chief Justice Panganiban, in his separate opinion in Sanlakas, writes: "The first
requirement, the existence of a live case or controversy, means that the existing
litigation is ripe for resolution and susceptible of judicial determination, as
opposed to one that is conjectural or anticipatory, hypothetical or feigned".
It is not the province of this Court to assume facts that do not exist.
It is for the foregoing reasons that I respectfully register my dissent. I vote to
DENY the petitions.
LEONARDO-DE CASTRO, J., concurring and dissenting:
I vote to consider the cases moot and academic considering the manifestation in
the Memorandum, dated September 24, 2008, filed by the Office of the Solicitor
General (OSG) that:
". . . The Executive Department has repeatedly and categorically stated
that the MOA-AD will not be signed in its present form or in any
other form. The Chief Executive has in fact gone to the
extent of dissolving the Government of the Republic of the Philippines
(GRP) Panel and has decided to take on a different tack and launch
talks, no longer with rebels or rebel groups, but with more peace-loving
community-based groups. . . ." 1 DAaIEc
This development renders unnecessary a detailed analysis of each of the
stipulations contained in the said MOA-AD, which have grave constitutional
implications on the sovereignty, territorial integrity and constitutional
processes of the Republic of the Philippines, all of which are non-negotiable
when viewed in the context of the nature of the internal conflict it seeks to
address and the state of our nation today.
I believe this is a prudent move on the part of the Executive Department. By the
very essence of our republican and democratic form of government, the
outcome of our constitutional processes, particularly the legislative process and
the constituent process of amending the constitution, cannot be predetermined or
predicted with certainty as it is made to appear by the consensus points of the
MOA-AD. Consequently, it is beyond the authority of any negotiating panel to
commit the implementation of any consensus point or a legal framework which is
inconsistent with the present Constitution or existing statutes.
Moreover, our constitutional processes are well-defined by various
provisions of the Constitution. The establishment of a political and territorial
"space" under a so-called Bangsamoro Juridical Entity (BJE) is nowhere to be
found in the 1987 Constitution, which provides for the country's territorial and
political subdivisions as follows:
"The territorial and political subdivisions of the Republic of the
Philippines are the provinces, cities, municipalities, and barangays.
There shall be autonomous regions in Muslim Mindanao and the
Cordilleras as hereinafter provided." 2
In the case of the autonomous regions, their creation is the shared
responsibility of the political branches of the government and the constituent
units affected. The Constitution is explicit in this regard, to wit:
"The Congress shall enact an organic act for each autonomous
region with the assistance and participation of the regional
consultative commission composedof representatives appointed
by the President from a list of nominees from multisectoral bodies. The
organic act shall define the basic structure of government for the region
consisting of the executive department and legislative assembly,
both of which shall be elective and representative of the constituent
political units. The organic acts shall likewise provide for special courts
with personal, family, and property law jurisdiction consistent with the
provisions of this constitution and national law. cIECaS
The creation of the autonomous region shall be effective when approved
by majority of the votes cast by the constituent units in a plebiscite called
for the purpose, provided that only provinces, cities, and geographic
areas voting favorably in such plebiscite shall be included in the
autonomous region." 3 (Emphasis supplied)
If the establishment of autonomy requires the joint participation of Congress, the
President, and of the people in the area affected, from the inception of the
process ofcreation of an autonomous region, with more reason, the
creation of the BJE an entity intended to have its own basic law to be adopted
in accordance with an "associative arrangement" which would imply, in legal
terms, semi-independence if not outright independence cannot be negotiated
without the participation of Congress and consultations with the people, residing
not only in the area to be placed under the BJE but also in the rest of our country.
Even with the participation of Congress and the consultation with stakeholders,
the process at the onset must conform and explicitly be subject to our
Constitution. This is specially important as the unsigned MOA-AD stipulates a
definite framework that threatens to erase, through the "policies, rules and
regulations" and basic law of the BJE, the objective existence of over four
hundred (400) years of development and progress of our people by unsettling
private voluntary agreements and undoing the official acts of our government
institutions performed pursuant to the Constitution and the laws in force during
the said long period in our history, within the identified areas, to be carved
out of a substantial portion of the national territory, and with only the "details", the
"mechanisms and modalities for actual implementation" to be negotiated and
embodied in a Comprehensive Compact. To my mind, this alarming possibility
contemplated in the MOA-AD may be the cause of chaos and even greater strife
for our brothers in the south, rather than bring about the intended peace.

BRION, J., concurring and dissenting:
The Petitions for Mandamus
I concur with the ponencia's conclusion that the mandamus aspect of the present
petitions has been rendered moot when the respondents provided this Court and
the petitioners with the official copy of the final draft of the
Memorandum of Agreement on Ancestral Domain (MOA-AD). 1
The Petitions for Prohibition
I likewise concur with the implied conclusion that the "non-signing of the MOA-AD
and the eventual dissolution of the Government of the Republic of the Philippines
(GRP) panel mooted the prohibition aspect of the petitions", but disagree that the
exception to the "moot and academic" principle should apply.
The ponencia alternatively claims that the petitions have not been mooted. I
likewise dissent from this conclusion.
a.The Ponencia and the Moot and Academic Principle.
As basis for its conclusion, the ponencia cites David v. Macapagal-Arroyo 2 for its
holding that "'the moot and academic' principle not being a magical formula that
automatically dissuades courts in resolving a case, it [the Court] will decide cases,
otherwise moot and academic, if it feels that (a) there is a grave violation of the
Constitution; 3 (b) the situation is of exceptional character and paramount public interest
is involved; 4 (c) the constitutional issue raised requires formulation of controlling
principles to guide the bench, the bar and the public; 5 and (d) the case is
capable of repetition yet evading review." 6 cCaATD
In further support of its position on the mootness issue, the ponencia additionally
cites the American ruling that "once a suit is filed and the doer voluntarily ceases
the challenged conduct, it does not automatically deprive the tribunal of power to
hear and determine the case and does not render the case moot especially when
the plaintiff seeks damages or prays for injunctive relief against the possible
recurrence of the violation". 7
b.The Context of the "Moot and Academic" Principle.
The cited David v. Macapagal-Arroyo defines a "moot and academic" case to
be "one that ceases to present a justiciable controversy by virtue of supervening
events, so that a declaration thereon would be of no practical use or value." It
goes on to state that "generally, courts decline jurisdiction over such cases and
dismiss it on the ground ofmootness". 8 This pronouncement traces its current roots
from the express constitutional rule under the second paragraph of Section 1, Article
VIII of the 1987 Constitution that "[j]udicial power includes the duty of the
courts of justice to settle actual controversies involving rights which are legally
demandable and enforceable. . ." This rule, which can conveniently be called the
traditional concept of judicial power, has been expanded under the 1987 Constitution to
include the power "to determine whether or not there has been grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch
or instrumentality of the Government".
Whether under the traditional or the expanded concept, judicial power must be
based on an actual justiciable controversy at whose core is the existence of a
case involving rights which are legally demandable and enforceable. Without this
feature, courts have no jurisdiction to act. Even a petition for declaratory relief 9
a petition outside the original jurisdiction of this Court to entertain must involve an
actual controversy that is ripe for adjudication. 10 In light of these requirements, any
exception that this Court has recognized to the rule on mootness (as expressed, for
example, in the cited David v. Macapagal-Arroyo) is justified only by the implied
recognition that a continuing controversy exists.
Specifically involved in the exercise of judicial power in the present petitions is
the Court's power of judicial review, i.e., the power to declare the substance,
application or operation of a treaty, international agreement, law, presidential
decree, proclamation, order, instruction, ordinance, or regulation
unconstitutional. 11 A first requisite for judicial review is that there be an "actual case"
calling for the exercise of judicial power. Fr. Joaquin Bernas, S.J., an eminent
constitutional law expert, comments in this regard that
This is a manifestation of the commitment to the adversarial system.
Hence, the Court has no authority to pass upon
issues of constitutionality through advisory opinions and it has no
authority to resolve hypothetical or feigned constitutional problems or
friendly suits collusively arranged between parties without real adverse
interests. Nor will the Court normally entertain a petition touching on an
issue that has become moot because then there would no longer be a
'flesh and blood' case for the Court to resolve." [Citations deleted,
emphasis supplied.] 12 cCSDTI
Other than the rule on actual case and standing (which aspect this separate
opinion does not cover), jurisprudence holds that this Court will not touch upon
the issue ofconstitutionality unless it is unavoidable or is the very lis mota. 13 As
will be discussed in refuting the ponencia's various positions, this rule finds special
application in the present case in light of the political sensitivity of the peace talks with
the MILF and the issues it has placed on the agenda, namely, peace and order in
Mindanao and the MILF's aspirations for freedom.
My disagreement with the ponencia on the application of the exceptions to the
mootness principle of David v. Macapagal-Arroyo is essentially based on how the
mootness principle and its exceptions should be applied. While the mootness
principle is "not a magical formula that automatically dissuades courts in
resolving cases", so also should the exceptions not be considered magical
formulas that should apply when the Court is minded to conduct a review despite
the mootness of a petition. In other words, where an issue is moot on its face, the
application of any of the exceptions should be subjected to a strict test because it
is a deviation from the general rule. The Court should carefully test the
exceptions to be applied from the perspectives both of legality and practical
effects, and show by these standards that the issue absolutely requires to be
resolved.
I do not believe that the exceptions were so tested and considered under
the ponencia.
c.The Ponencia's Positions Refuted
i.Mootness and this Court's TRO
A first point the ponencia stresses with preeminence in its discussion of the
mootness issue is the observation that "the signing of the MOA-AD did not push
through due to the court's issuance of a Temporary Restraining Order". The
implication, it seems, is that the intervening events subsequent to the filing of the
petition and the issuance of the temporary restraining order (TRO) specifically,
the respondents' commitment that the MOA-AD shall not be signed in its present
form or in any other form, 14 and the President's act of dissolving
the GRP negotiating panel 15 had no effect on the petitions because the
signing of the MOA-AD had by then been stopped by our TRO. I find this a disturbing
implication as the petitions for prohibition presented live controversies up to and beyond
the issuance of this Court's TRO; they were rendered moot only by the above
mentioned intervening events. By these intervening and unequivocal acts, the
respondents effectively acknowledged that the MOA-AD should indeed not be signed as
demanded by the petition. Thus, the TRO from this Court only immediately ensured that
the MOA-AD would not be signed until this Court had spoken on the constitutional and
statutory grounds cited by the petitions, but it was the respondents' acts that removed
from controversy the issue of whether the MOA-AD should be signed or not. In simpler
terms, after the respondents declared that the MOA-AD would not be signed, there was
nothing left to prohibit and no rights on the part the petitioners continued to be at
risk of violation by the MOA-AD. Thus, further discussion of the constitutionality of the
MOA-AD now serves no useful purpose; as the discussion below will show, there may
even be a considerable downside for our national interests if we inject another factor
and another actor in the Mindanao conflict by ruling on the unconstitutionality of the
MOA-AD. DICSaH
ii.Mootness and Constitutional Implications
The ponencia posits as well that the MOA-AD has not been mooted because it
has far-reaching constitutional implications and contains a commitment to amend
and effect necessary changes to the existing legal framework. The same reason
presented above suffices to defuse the ponencia's fear about the adverse
constitutional effects the MOA-AD may bring or might have brought: without a
signed MOA-AD none of these feared constitutional consequences can arise.
From another perspective, what the ponencia appears to fear are the
constitutional violations and adverse consequences of a signed and
effective MOA-AD. These fears, however, are relegated to the
realm of speculation with the cancellation of the signing of the MOA-AD and the
commitment that it shall not be signed in its present or any other form. Coupled
with the subsequent dissolution of the GRP negotiating panel, the government
could not have communicated and conveyed any stronger
message, short of totally scuttling the whole peace process, that it was not
accepting the points covered by the aborted MOA-AD. Government
motivation for disavowing the aborted agreement is patently evident
from Executive Order No. 3 that outlines the government's visions and intentions
in the conduct of peace negotiations. That the GRP negotiating panel came up
with a different result is a matter between the Executive and the negotiating
panel and may be the immediate reason why the Executive's response was to
forthwith dissolve the negotiating panel.
iii.GRP Obligation to Discuss Ancestral Domain
A consistent concern that runs through the ponencia is that the Philippines is
bound under the GRP-MILF Tripoli Agreement on Peace signed by the
government and the MILF in June 2001 to have an agreement on the
Bangsamoro ancestral domain. This concern led the ponencia to conclude that
the government decision not to sign the MOA-AD will not render the present
petitions moot. In other words, the MOA-AD will recur and hence should be
reviewed now. DHTCaI

A basic flaw in this conclusion is its unstated premise that the Philippines
is bound to come to an agreement on ancestral domain, thereby equating
the commitment to discussthis issue with the obligation to have an agreement.
To quote the ponencia's cited Tripoli Agreement of June 2001, 16 the provision on
Ancestral Domain Aspect reads:
On the aspect of ancestral domain, the Parties, in order to address the
humanitarian and economic needs of the Bangsamoro people and
preserve their social and cultural heritage and inherent rights over their
ancestral domain, agree that the same be discussed further by the
Parties in their next meeting." [Emphasis supplied.]
Under these terms, it is plain that the GRP's commitment extends only to the
discussion of the ancestral domain issue. The agreement to discuss,
however, does not bind the GRP to come to an agreement; the GRP is merely
bound to try to reach an agreement or compromise. Implicit in this
commitment is that the Philippines can always say "no" to unacceptable
proposals or walk away from the discussion if it finds the proposed terms
unacceptable. This option has not been removed from the Philippines under
any of the duly signed agreements on the Mindanao peace process. I believe
that this is the message that should come out in bold relief, not
the ponencia'smisreading of the June 2001 agreement. cDIHES
With the present MOA-AD effectively scuttled, the parties are back to the above
quoted agreement under which the GRP bound itself to discuss ancestral domain
with the MILF as part of the overall peace process. If the ponencia's fear relates
to the substance of these future talks, these matters are not for this Court to rule
upon as they belong to the realm of policy a matter for other
branches of government other than the Judiciary to determine. This Court can
only speak with full force and authority on ripe, live, and actual controversies
involving violations of constitutional or statutory rights. 17 As a rule, courts look back
to past actions, using the Constitution, laws, rules and regulations as standards, to
determine disputes and violations of constitutional, and statutory rights; the legislature
and the executive, on the other hand, look forward to address present and future
situations and developments, with their actions limited by existing constitutional,
statutory and regulatory parameters that the courts are duty-bound to safeguard. Thus,
if this Court can speak at all on the substance of future talks, this can only be by
way of a reminder that the government's positions can only be within constitutional and
statutory parameters and subject to the strict observance of required constitutional and
statutory procedures if future changes to the constitution and to current statutes are
contemplated.
iv.Mootness and Paramount Public Interest
In justifying the application of the exception on the basis of paramount public
interest, the ponencia noted that the MOA-AD involved a significant part of the
country's territory and wide-ranging political modifications for affected local
government units. It also claimed that the need for further legal enactments
provides impetus for the Court to provide controlling principles to guide the
bench, the bar, the public and the government and its negotiating entity. 18
Unfortunately, the ponencia's justifications on these points practically stopped at
these statements. Surprisingly, it did not even have an analysis of what the
paramount public interest is and what would best serve the common good under
the failed signing of the MOA-AD. We note, as a matter of judicial experience,
that almost all cases involving constitutional issues filed with this Court are
claimed to be impressed with public interest. It is one thing, however, to make a
claim and another thing to prove that indeed an interest is sufficiently public, ripe,
and justiciable to claim the attention and action of this Court. It must be
considered, too, that while issues affecting the national territory and sovereignty
are sufficiently weighty to command immediate attention, answers and solutions
to these types of problems are not all lodged in the Judiciary; more than not,
these answers and solutions involve matters of policy that essentially rest with
the two other branches of government under our constitutional system, 19 with the
Judiciary being called upon only where disputes and grave abuse of discretion arise in
the course applying the terms of the Constitution and in implementing our
laws. 20 Where policy is involved, we are bound by our constitutional duties to leave the
question for determination by those duly designated by the Constitution the Executive,
Congress, or the people in their sovereign capacity. HAaDTI
In the present case, the peace and order problems of Mindanao are essentially
matters for the Executive to address, 21 with possible participation from Congress
and the sovereign people as higher levels of policy action arise. Its search for solutions,
in the course of several presidencies, has led the Executive to the peace settlement
process. As has been pointed out repetitively in the pleadings and the oral arguments,
the latest move in the Executive's quest for peace the MOA-AD would have not
been a good deal for the country if it had materialized. This Court, however, seasonably
intervened and aborted the planned signing of the agreement. The Executive, for its
part, found it wise and appropriate to fully heed the signals from our initial action and
from the public outcry the MOA-AD generated; it backtracked at the earliest opportunity
in a manner consistent with its efforts to avoid or minimize bloodshed while preserving
the peace process. At the moment, the peace and order problem is still with the
Executive where the matter should be; the initiative still lies with that
branch of government. The Court's role, under the constitutional scheme that we are
sworn to uphold, is to allow the initiative to be where the Constitution says it should
be. 22 We cannot and should not interfere unless our action is unavoidably
necessary because the Executive is acting beyond what is allowable, or because it has
failed to act in the way it should act, under the Constitution and our laws. aSTcCE
My conclusion is in no small measure influenced by two basic considerations.
First, the failure to conclude the MOA-AD as originally arranged by the parties
has already resulted in bloodshed in Mindanao, with blood being spilled on all
sides, third party civilians included. Some of the spilled blood was not in actual
combat but in terror bombings that have been inflicted on the urban areas. To
date, the bloodletting has showed no signs of abating.
Lest we become confused in our own understanding of the issues, the problems
confronting us may involve the socio-economic and cultural plight of our Muslim
and our indigenous brothers, but at core, they are peace and order problems.
Though others may disagree, I believe that socio-economic and cultural
problems cannot fully be addressed while peace and order are elusive. Nor can
we introduce purely pacific solutions to these problems simply because we are
threatened with violence as an alternative. History teaches us that those who
choose peace and who are willing to sacrifice everything else for the
sake of peace ultimately pay a very high price; they also learn that there are
times when violence has to be embraced and frontally met as the price for a
lasting peace. This was the lesson of Munich in 1938 and one that we should not
forget because we are still enjoying the peace dividends the world earned when it
stood up to Hitler. 23 In Mindanao, at the very least, the various solutions to our multi-
faceted problems should come in tandem with one another and never
out of fear of threatened violence.
Rather than complicate the issues further with judicial pronouncements that may
have unforeseen or unforeseeable effects on the present fighting and on the
solutions already being applied, this Court should exercise restraint as the fears
immediately generated by a signed and concluded MOA-AD have been
addressed and essentially laid to rest. Thus, rather than pro-actively act on areas
that now are more executive than judicial, we should act with calibrated restraint
along the lines dictated by the constitutional delineation of powers. Doing so
cannot be equated to the failure of this Court to act as its judicial duty requires;
as I mentioned earlier, we have judicially addressed the concerns posed with
positive effects and we shall not hesitate to judicially act in the future, as may be
necessary, to ensure that the integrity of our constitutional and statutory rules
and standards are not compromised. If we exercise restraint at all, it is because
the best interests of the nation and our need to show national solidarity at this
point so require, in order that the branch of government in the best position to act
can proceed to act.
Second, what remains to be done is to support the government as it pursues and
nurses the peace process back to its feet after the failed MOA-AD. This will again
entail negotiation, not along the MOA-AD lines as this recourse has been tried
and has failed, but along other approaches that will fully respect our Constitution
and existing laws, as had been done in the 1996 MNLF agreement. In this
negotiation, the Executive should be given the widest latitude in exploring options
and initiatives in dealing with the MILF, the Mindanao peace and order problem,
and the plight of our Muslim brothers in the long term. It should enjoy the full
range of these options from changes in our constitutional and statutory
framework to full support in waging war, if and when necessary subject only to
the observance of constitutional and statutory limits. In a negotiation situation,
the worse situation we can saddle the Executive with is to wittingly or unwittingly
telegraph the Executive's moves and our own weaknesses to the MILF through
our eagerness to forestall constitutional violations. We can effectively move as
we have shown in this MOA-AD affair, but let this move be at the proper time and
while we ourselves observe the limitations the Constitution commonly impose on
all branches of government in delineating their respective roles. TaEIAS

v.The Need for Guidelines from this Court
The cases of David v. Macapagal-Arroyo, Sanlakas v. Executive
Secretary, and Lacson v. Perez presented a novel issue that uncovered a gray
area in our Constitution: in the absence of a specific constitutional provision,
does the President have the power to declare a state of rebellion/national
emergency? If the answer is in the affirmative, what are the consequences of this
declaration?
David v. Macapagal-Arroyo answered these questions and went on to further
clarify that a declaration of a state of national emergency did not necessarily
authorize the President to exercise emergency powers such as the power to take
over private enterprises under Section 17, Article XII of the Constitution. Prior to
this case, the correlation between Section 17, Article XII and the emergency
powers of the President under Section 23 (2), Article VI has never been
considered. HAECID
In contrast, the present petitions and the intervening developments do not now
present similar questions that necessitate clarification. Since the MOA-AD does
not exist as a legal, effective, and enforceable instrument, it can neither be illegal
nor unconstitutional. For this reason, I have not bothered to refute the statements
and arguments about its unconstitutionality. I likewise see no reason to wade into
the realm of international law regarding the concerns of some of my colleagues in
this area of law.
Unless signed and duly executed, the MOA-AD can only serve as unilateral
notes or a "wish list" as some have taken to calling it. If it will serve any purpose
at all, it can at most serve as an indicator of how the internal processes involving
the peace negotiations are managed at the Office of the President. But these are
matters internal to that Office so that this Court cannot interfere, not even to
make suggestions on how procedural mistakes made in arriving at the aborted
MOA-AD should be corrected.
To be sure, for this Court to issue guidelines relating to unapplied constitutional
provisions would be a useless exercise worse than the "defanging of paper
tigers" that Mr. Justice Dante O. Tinga abhorred in David v. Macapagal-
Arroyo. 24 In terms of the results of this exercise, the words of former Chief Justice
Artemio Panganiban in Sanlakas v. Executive Secretary are most apt "nothing is
gained by breathing life into a dead issue". 25
vi.The "Capable of Repetition but Evading Review" Exception
The best example of the "capable of repetition yet evading review" exception to
mootness is in its application in Roe v. Wade, 26 the U.S. case where the American
Supreme Court categorically ruled on the legal limits of abortion. Given that a fetus has
a gestation period of only nine months, the case could not have worked its way through
the judicial channels all the way up to the US Supreme Court without the disputed
pregnancy being ended by the baby's birth. Despite the birth and the patent
mootness of the case, the U.S. Supreme Court opted to fully confront the abortion issue
because it was a situation clearly capable of repetition but evading review the issue
would recur and would never stand effective review if the nine-month gestation period
would be the Court's only window for action. EHTSCD
In the Philippines, we have applied the "capable of repetition but evading review"
exception to at least two recent cases where the Executive similarly backtracked
on the course of action it had initially taken.
The earlier of these two cases Sanlakas v. Executive Secretary 27 involved the
failed Oakwood mutiny of July 27, 2003. The President issued Proclamation No. 427
and General Order No. 4 declaring a "state of rebellion" and calling out the armed
forces to suppress the rebellion. The President lifted the declaration on August 1, 2003
through Proclamation No. 435. Despite the lifting, the Court took cognizance of the
petitions filed based on the experience of May 1, 2001 when a similar "state of rebellion"
had been imposed and lifted and where the Court dismissed the petitions filed for their
mootness. 28 The Court used the "capable of repetition but evading review" exception
"to prevent similar questions from re-emerging . . . and to lay to rest the validity of the
declaration of a state of rebellion in the exercise of the President's calling out power, the
mootness of the petitions notwithstanding."
The second case (preeminently cited in the present ponencia) is David v.
Macapagal-Arroyo. The root of this case was Proclamation No. 1017
and General Order No. 5 that the President issued in response to the conspiracy
among military officers, leftist insurgents of the New People's Army, and
members of the political opposition to oust or assassinate her on or about
February 24, 2006. On March 3, 2006, exactly one week after the
declaration of a state of emergency, the President lifted the declaration. In taking
cognizance of the petitions, the Court justified its move by simply stating that "the
respondents' contested actions are capable of repetition". SIcEHC
Despite the lack of extended explanation in David v. Macapagal-Arroyo, the
Court's actions in both cases are essentially correct because of the
history of "emergencies" that had attended the administration of President
Macapagal-Arroyo since she assumed office. Thus, by the time of David v.
Macapagal-Arroyo, the Court's basis and course ofaction in these types of cases
had already been clearly laid.
This kind of history or track record is, unfortunately, not present in the petitions at
bar and no effort was ever exerted by the ponencia to explain why the exception
should apply. Effectively, the ponencia simply textually lifted the exception from
past authorities and superimposed it on the present case without looking at the
factual milieu and surrounding circumstances. Thus, it simply assumed that the
Executive and the next negotiating panel, or any panel that may be convened
later, will merely duplicate the workof the respondent peace panel.
This assumption is, in my view, purely hypothetical and has no basis in fact in the
way David v. Macapagal-Arroyo had, or in the way the exception to mootness
was justified inRoe v. Wade. As I have earlier discussed, 29 the ponencia's
conclusion made on the basis of the GRP-MILF Peace Agreement of June 2001 is
mistaken for having been based on the wrong premises. Additionally, the
pronouncements of the Executive on the conduct of the GRP negotiating panel and the
parameters of its actions are completely contrary to what the ponencia assumed.
Executive Order No. 3 (entitled Defining Policy and Administrative Structure for
Government's Comprehensive Peace Efforts) sets out the government's visions
and the structure by which peace shall be pursued. Thus, its Section 2 states
The Systematic Approach to peace; Section 3, The Three Principles of the
Comprehensive Peace Process; Section 4, The Six Paths to Peace; and Section
5 (c) the Government Peace Negotiating Panels. 30 The
Memorandum of Instructions from the President dated March 2001 to the Government
Negotiating Panel, states among others that:
1.The negotiations shall be conducted in accordance with the
mandates of the Philippine Constitution, the Rule of Law, and the
principles of the sovereignty and territorial integrity of the
Republic of the Philippines. aDHCEA
2.The negotiation process shall be pursued in line with the national
Comprehensive Peace Process, and shall seek a principled and
peaceful resolution of the armed conflict, with neither blame nor
surrender, but with dignity for all concerned.
xxx xxx xxx
4.The general approach to the negotiations shall include the following:
a.Seeking a middle ground between the aspirations of the MILF
and the political, social and economic objectives of the
Philippine Government;
b.Coordinated Third Party Facilitation, where needed;
c.Consultations with affected communities and sectors. 31
Under these clear terms showing the Executive's vision on how the peace
process and the negotiations shall proceed, I believe that it is fallacious to
assume that any renewed negotiation with the MILF will entail a
repetition of the discarded MOA-AD. Understandably, it may be asked why
the MOA-AD turned out the way it did despite the negotiating panel's clear
marching orders. The exact answer was never clarified during the oral
arguments and I can only speculate that at some point, the negotiating panel
lost its bearings and deviated from the clear orders that are still in force up to
the present time. As I mentioned earlier, 32 this may be the reason why the
negotiating panel was immediately dissolved. What is important though, for
purposes of this case and of the peace and order situation in Mindanao, is that the
same marching orders from the Executive are in place so that there is no
misunderstanding as to what that branch of government seeks to accomplish and
how it intends this to be done.
The fact that an issue may arise in the future a distinct possibility for
the ponencia unfortunately does not authorize this Court to render a purely
advisory opinion, i.e., one where a determination by this Court will not have any
effect in the "real world". A court's decision should not be any broader than is
required by the precise facts. Anything remotely resembling an advisory opinion
or a gratuitous judicial utterance respecting the meaning of the Constitution must
altogether be avoided. 33 At best, the present petitions may be considered to be for
declaratory relief, but that remedy regrettably is not within this Court's original
jurisdiction, as I have pointed out earlier. 34
Finally, let me clarify that the likelihood that a matter will be repeated does not
mean that there will be no meaningful opportunity for judicial review 35 so that an
exception to mootness should be recognized. For a case to dodge dismissal for
mootness under the "capable of repetition yet evading review" exception, two requisites
must be satisfied: (1) the duration of the challenged action must be too short to be fully
litigated prior to its cessation or expiration; and (2) there must be reasonable
expectation that the same complaining party will be subjected to the same action
again. 36 cTECIA

The time constraint that justified Roe v. Wade, to be sure, does not inherently
exist under the circumstances of the present petition so that judicial review will be
evaded in a future litigation. As this Court has shown in this case, we can
respond as fast as the circumstances require. I see nothing that would bar us
from making a concrete ruling in the future should the exercise of our judicial
power, particularly the exercise of the power of judicial review, be justified.
vii.The Right to Information
The petitions for mandamus essentially involved the demand for a copy of the
MOA-AD based on the petitioners' right to information under Section 7, Article
III of the 1987 Constitution. In light of the commonly-held view that
the mandamus aspect of the petitions is now moot, focus now shifts to the right
to consultation (an aspect of the constitutional right to information and as
guaranteed under the Indigenous People's Rights Act 37 and the Local Government
Code) 38 that the petitioners now capitalize on to secure the declaration of the
nullity of the MOA-AD.
I note in this regard though that it is not so much the lack of consultations that the
petitioners are rallying against, but the possibility under the MOA-AD's terms that
they may be deprived of their lands and properties without due process of law
(i.e., that the lumads' ancestral domains will be included in and covered by the
Bangsamoro Juridical Entity[BJE] without the benefit of prior
consultations). 39 Thus, the equation they present to this Court is: lack of consultations
= deprivation of property without due process of law.
The short and quick answer to this proprietary concern is that the petitioners'
claim is premature. With the MOA-AD unsigned, their fears need not materialize.
But even with a signed MOA-AD, I do not believe that the immediate deprivation
they fear and their due process concerns are valid based alone on the
terms of this aborted agreement. Under these terms, the MOA-AD's execution
and signing are but parts of a series of acts and agreements; its signing was not
to be the final act that would render its provisions operative. The MOA-AD itself
expressly provides that the mechanisms and modalities for its implementation will
still have to be spelled out in a Comprehensive Compact and will require
amendments to the existing legal framework. This amendatory process, under
the Constitution, requires that both Congress and the people in their sovereign
capacity be heard. Thus, the petitioners could still fully ventilate their views and
be heard even if the MOA-AD had been signed. STcaDI
It is in the above sense that I doubt if the ponencia's cited case Chavez v.
PEA 40 can serve as an effective authority for the ponencia's thesis: that the
process of negotiations as well as the terms of the MOA-AD should have been fully
disclosed pursuant to the people's right to information under Section 7, Article III and the
government's duty to disclose under Section 28, Article II of the Constitution.
The Chavez case dealt with a commercial contract that was perfected upon its signing;
disclosure of information pertaining to the negotiations was therefore necessary as an
objection after the signing would have been too late. As outlined above, this feature of a
commercial contract does not obtain in the MOA-AD because subsequent acts have to
take place before the points it covers can take effect. But more than this, the contract
involved in Chavez and the purely commercial and proprietary interests it represents
cannot simply be compared with the MOA-AD and the concerns it touched upon
recognition of a new juridical entity heretofore unknown in Philippine law, its impact on
national sovereignty, and its effects on national territory and resources. If only for these
reasons, I have to reject the ponencia's conclusions touching on the right to information
and consultations. HETDAa
My more basic disagreement with the ponencia's treatment of the right to
information and the duty of disclosure is its seeming readiness to treat these
rights as stand-alone rights that are fully executory subject only to the safeguards
that Congress may by law interpose.
In the first place, it was not clear at all from the ponencia's cited constitutional
deliberations that the framers intended the duty of disclosure to be immediately
executory. The cited deliberation recites:
MR. DAVIDE:
I would to get some clarifications on this. Mr. Presiding Officer, did I get
the Gentleman correctly as having said that this is not a self-
executory provision? It would require a legislation by Congress to
implement?
MR. OPLE:
Yes. Originally, it was going to be self-executing, but I accepted an
amendment from Commissioner Regalado, so that the safeguards
on national interests are modified by the clause "as may be
provided by law".
MR. DAVIDE:
But as worded, does it not mean that this will immediately take effect and
Congress may provide for reasonable safeguards on the sole
ground of national interest?
MR. OPLE:
Yes. I think so. Mr. Presiding Officer, I said earlier that it should
immediately influence the climate of the conduct of public affairs
but, of course, Congress here may no longer pass a law revoking
it, or if this is approved, revoking this principle, which is
inconsistent with this policy. 41 TIcAaH
In my reading, while Mr. Davide was sure of the thrust of his question, Mr. Ople
was equivocal about his answer. In fact, what he actually said was that his
original intention was for the provision to be self-executing, but Mr. Regalado
introduced an amendment. His retort to Mr. Davide's direct question was a cryptic
one and far from the usual Ople reply that the right should immediately
influence the climate of public affairs, and that Congress can no longer revoke it.
Mr. Ople's thinking may perhaps be better understood if the exchanges in
another deliberation on the issue of whether disclosure should extend to the
negotiations leading to the consummation of a state transaction is considered.
The following exchanges took place:
MR. SUAREZ:
And when we say 'transactions' which should be distinguished from
contracts, agreements, or treaties or whatever, does the
Gentleman refer to the steps leading to the consummation of the
contract, or does he refer to the contract itself?
MR. OPLE:
The 'transactions' used here, I suppose is generic and therefore, it can
cover both steps leading to a contract and already a
consummated contract, Mr. Presiding Officer.
MR. SUAREZ:
This contemplates inclusion of negotiations leading to the
consummation of the transaction.
MR. OPLE:
Yes, subject only to reasonable safeguards on the national
interest. 42
Thus, even if Mr. Ople did indeed mean that the constitutional provisions on
the right to information and the duty of disclosure may immediately be
effective, these provisions have to recognize, other than those expressly
provided by Congress, "reasonable safeguards on the national interest". In
constitutional law, this can only refer to safeguards inherent from the
nature of the state transaction, the state interests involved, and the power that
the state may bring to bear, specifically, its police power. Viewed in this light,
the duty to disclose the various aspects of the MOA-AD should not be as
simplistic as the ponencia claims it to be as this subject again opens up
issues this Court has only began to deal with in the Neri petition 43 and the
JPEPA controversy. 44 Of course, this is not the time nor the case for a full
examination of the constitutional right to information and the government's duty to
disclose since the constitutionality of the MOA-AD is a dead issue. cdtai
As my last point on a dead issue, I believe that the ponencia did not distinguish in
its discussion between the disclosure of information with respect to the peace
process in general and the MOA-AD negotiation in particular. I do not believe that
these two matters can be interchanged and discussed from the
prisms of information and disclosure as if they were one and the same. The
peace process as embodied in E.O. No. 3 relates to the wider government effort
to secure peace in Mindanao through various offices and initiatives under the
Office of the President interacting with various public and private entities at
different levels in Mindanao. The peace negotiation itself is only a part of the
overall peace process with specifically named officials undertaking this activity.
Thus, the consultations for this general peace process are necessarily wider than
the consultations attendant to the negotiations proper that has been delegated to
the GRP Negotiating Panel. The dynamics and depth of consultations and
disclosure with respect to these processes should, of course, also be different
considering their inherently varied natures. This confusion, I believe, renders the
validity of the ponencia's discussions about the violation of the right to
information and the government's duty of disclosure highly doubtful.
Conclusion
The foregoing reasons negate the existence of grave abuse of discretion that
justifies the grant of a writ of prohibition. I therefore vote to DISMISS the
consolidated petitions.
REYES, R.T., J.:
Nemo dat quod non habet. You cannot give what you do not have. Hindi mo
maibibigay ang hindi sa iyo. CacTSI
This maxim forcefully applies in these consolidated petitions and petitions-in-
intervention for mandamus and prohibition which in the main seek the
nullification of the Memorandum of Agreement on Ancestral Domain (MOA-AD)
entered into between the Government of the Republic of the Philippines
(GRP Panel) and the Moro Islamic Liberation Front (MILF).
The issues may be compressed as follows: (1) whether the petitions and
petitions-in-intervention have become moot due to supervening events; and (2)
whether the MOA-AD is constitutional.
I.The petitions and petitions-in-intervention have become moot due to
supervening events. However, they should be decided given the
exceptional circumstances, following well known precedents.

During the August 29, 2008 oral arguments before the Court, the Solicitor
General manifested that the MOA-AD will not be signed "in its present form or in
any other form." 1The August 28, 2008 memorandum of the Executive Secretary also
says that "the government will not sign" the MOA-AD. 2 Due to these statements, the
petitions and petitions-in-intervention have clearly become moot.
Be that as it may, the Court is not precluded from passing judgment on them. It is
hornbook doctrine that courts will decide cases, otherwise moot, when (1) there
is a grave violation of the Constitution; (2) the exceptional character of the
situation and the paramount public interest involved demand; (3) the
constitutional issue raised requires formulation of controlling principles to guide
the bench, the bar, and the public; and (4) the case is capable of repetition yet
evading review. 3
Let me cite a few examples.
In Javier v. Commission on Elections, 4 petitioner Evelio B. Javier was assassinated
on February 11, 1986 before his petition to the Court could be decided. In his petition,
Javier argued that the proclamation of his rival, Arturo F. Pacificador, was void because
it was made only by a division and not by the Commission on Elections en banc as
required by the1973 Constitution. The new Solicitor General moved for the
dismissal of the petition on the ground of mootness in view of supervening events. The
Court refused, saying:
The abolition of the Batasang Pambansa and the disappearance of the
office in dispute between the petitioner and the private respondent
both of whom have gone their separate ways could be a convenient
justification for dismissing this case. But there are larger issues involved
that must be resolved now, once and for all, not only to dispel the legal
ambiguities here raised. The more important purpose is to manifest in
the clearest possible terms that this Court will not disregard and in
effect condone wrong on the simplistic and tolerant pretext that the
case has become moot and academic.
The Supreme Court is not only the highest arbiter of legal questions but
also the conscience of the government. The citizen comes to us in the
quest of law but we must also give him justice. The two are not always
the same. There are times we cannot grant the latter because the issue
has been settled and decision is no longer possible according to the law.
But there are also times when although the dispute has
disappeared, as in this case, it nevertheless cries out to be
resolved. Justice demands that we act then, not only for the
vindication of the outraged right, though gone, but also for the
guidance of and as a restraint on the future. 5 (Emphasis supplied)
In Salonga v. Cruz-Pao, 6 the Court had already deliberated on the case, a
consensus on the judgment of the Court had been reached, and a draft ponencia was
circulating for concurrences and if any. However, on January 18, 1985, respondent
Judge Rodolfo Ortiz granted the motion of respondent City Fiscal Sergio Apostol to drop
the subversion case against petitioner. In accordance with the instructions of the
Minister of Justice, the prosecution reevaluated its evidence and decided the
exclusion of petitioner as one of the accused in the information filed under the
questioned resolution. aSTAHD
However, this did not prevent the Court from deciding the merits of the petition. In
doing so, the Court reasoned that "[t]he setting aside or declaring void, in proper
cases, ofintrusions of State authority into areas reserved by the Bill of Rights for
the individual as constitutionally protected spheres where even the awesome
powers of Government may not enter at will is not the totality of the Court's
function." It "also has the duty to formulate guiding and controlling
constitutional principles, precepts, doctrines, or rules. It has the symbolic
function of educating bench and bar on the extent of protection given by
constitutional guarantees." 7 Similarly, Dela Camara v. Enage, 8Gonzales v.
Marcos, 9 and Aquino, Jr., v. Enrile 10 were decided under the same aegis.
In David v. Macapagal-Arroyo, 11 the Solicitor General moved for the dismissal of the
consolidated petitions on the ground of mootness. It was argued that because the
President had already lifted her declaration of state of national emergency, there was no
longer an actual case or controversy. The Court was not convinced, saying that "[t]he
"moot and academic" principle is not a magical formula that can automatically
dissuade the courts in resolving a case." 12 It then proceeded to declare
unconstitutional major parts ofthe declaration of state of national emergency by the
President.
Just recently, in Manalo v. Calderon, 13 "[n]otwithstanding the mootness of the issues
on restrictive custody and monitoring of movements of petitioners", the Court opted to
resolve the petition for habeas corpus, due to "(a) the paramount public interest
involved, (b) their susceptibility of recurring yet evading review, and (c) the
imperative need to educate the police community on the matter."
The petitions and petitions-in-intervention call for a similar or analogous
treatment by the court, due to their transcendental importance and in the national
interest. IcESaA
II.The MOA-AD is unconstitutional.
The GRP Panel went beyond their marching orders from the President.
The March 1, 2001 Memorandum of Instructions from the President, 14 which
prescribes the guidelines for the GRP Panel in negotiating with the MILF, partly states:
1.The negotiations shall be conducted in accordance with the
Mandates of the Philippine Constitution, the Rule of Law, and the
principles of the sovereignty and territorial integrity of the Republic of the
Philippines.
2.The negotiation process shall be pursued in line with the national
Comprehensive Peace Process, and shall seek the principled and peace
resolution of the armed conflict, with neither blame nor surrender, but
with dignity for all concerned.
3.The objective of the GPNP is to attain a peace settlement that shall:
a.Contribute to the resolution of the root cause of the armed
conflict, and to societal reform, particularly in Southern
Philippines;
b.Help attain a lasting peace and comprehensive stability in
Southern Philippines under a meaningful program of autonomy for
Filipino Muslims, consistent with the Peace Agreement entered
into by the GRP and the MNLF on 02 September 1996; and
c.Contribute to reconciliation and reconstruction in Southern
Philippines.
4.The general approach to the negotiations shall include the following:
a.Seeking a middle ground between the aspirations of the MILF
and the political, social and economic objectives of the Philippine
Government;
b.Coordinated Third Party facilitation, where needed;
c.Consultation with affected communities and sectors. (Emphasis
supplied) cISAHT
In an apparent compliance with the Directive of the President, the MOA-AD
mentions the following documents as terms of reference, to wit:
1.The Agreement for General Cessation of Hostilities dated July 18,
1997 Between the GRP and the MILF, and its Implementing
Administrative and Operational Guidelines;
2.The General Framework of Agreement of Intent Between the GRP and
the MILF dated August 27, 1998;
3.The Agreement on the General Framework for the
Resumption of Peace Talks Between the GRP and the MILF dated
March 24, 2001;
4.The Tripoli Agreement on Peace Between the GRP and the MILF
dated June 22, 2001;
5.The Tripoli Agreement Between the GRP and the Moro National
Liberation Front (MNLF) dated December 23, 1976 and the Final
Agreement on the Implementation of the 1976 Tripoli Agreement
Between the GRP and the MNLF dated September 2, 1996;
6.Republic Act No. 6734, as amended by R.A. 9054, otherwise known as
"An Act to Strengthen and Expand the Autonomous Region in Muslim
Mindanao (ARMM)";
7.ILO Convention No. 169, in correlation to the UN Declaration on the
Rights of the Indigenous Peoples, and Republic Act No. 8371 otherwise
known as the Indigenous Peoples Rights Act of 1997, the UN Charter,
the UN Universal Declaration on Human Rights, International
Humanitarian Law (IHL), and internationally recognized human rights
instruments; and
8.Compact rights entrenchment emanating from the regime of dar-ul-
mua'hada (or territory under compact) and dar-ul-sulh (or territory under
peace agreement) that partakes the nature of a treaty device. For the
purpose of this Agreement, a "treaty" is defined as any solemn
agreement in writing that sets out understandings, obligations, and
benefits for both parties which provides for a framework that elaborates
the principles declared in the Agreement. ADTCaI
Curiously missing in the enumeration, however, is the Constitution. The omission
could only mean that the parties intended the MOA-AD not to be bound by
the fundamental law. The Constitution is supposed to be the one to
conform to the MOA-AD, and not the other way around. 15
There can be no doubt as to the marching orders by the President. In negotiating
with the MILF, the GRP Panel should use the Constitution as the parameter. Too,
the preservation of the territorial integrity of the Republic of the Philippines should
be maintained at all times. The GRP Panel, however, appears to have failed to
follow those instructions.
The commitment of the GRP Panel to the MILF to change the Constitution
to conform to the MOA-AD violates the doctrine of separation of powers.
Under the present constitutional scheme, the President is a mere bystander as
far as the process of constitutional amendment or revision is concerned. The
President is deprived of any participation because the Constitution 16 only allows
three political agents, namely: (1) the Congress, upon a vote of three-fourths of all its
members; (2) a constitutional convention; 17 and (3) the people through initiative upon a
petition of at least twelve (12) per centum of the total number of registered
voters, of which every legislative district must be represented by at least three per
centum of its registered voters.

Thus, since the President is bereft of any power in effecting constitutional
change, the GRP Panel, who acts under the imprimatur of the President, cannot
commit to the MILF that the Constitution will be amended or revised in order to
suit the MOA-AD. That would be a violation of the
doctrine of separation of powers. Nemo potest facere per alium quod non potest
facere per directum. No one is allowed to do indirectly what he is prohibited to do
directly. Sinuman ay hindi pinapayagan na gawin nang di tuwiran ang
ipinagbabawal na gawin nang tuwiran. DAcSIC
The MOA-AD contains numerous provisions that appear unconstitutional.
Respondents claim that the contents of the MOA-AD are mere concession points
for further negotiations. The MILF, however, publicly announced that the MOA-
AD is already a "done deal" and its signing a mere formality. 18
I find both claims of respondents and the MILF difficult to swallow. Neither
position is acceptable. The GRP Panel has not presented any proof to buttress
its point that, indeed, the parties intended the MOA-AD to be mere concession
points for further negotiations. The MILF have not also shown proof to support its
claim. In this regard, the MOA-AD should be interpreted according to its face
value.
Having said that, let me point out the defects of the MOA-AD.
First. The MOA-AD creates a new political subdivision, the so-called
Bangsamoro Juridical Entity (BJE). This is not permitted by the Constitution,
which limits the political subdivisions of the Republic of the Philippines
into provinces, cities, municipalities, barangays and autonomous regions. 19
Worse, the BJE also trenches on the national sovereignty and territorial
integrity of the Republic of the Philippines. 20 This is so because pursuant to the
MOA-AD: (1) The Bangsamoro homeland and historic territory is clearly
demarcated; 21 (2) The BJE is given the authority and jurisdiction over the Ancestral
Domain and Ancestral lands. This includes both alienable and non-alienable lands
encompassed within their homeland and ancestral territory, 22 specified "internal
waters" 23 as well as "territorial waters"; 24 (3) The declared ultimate
objective of entrenching the Bangsamoro homeland as a territorial space is "to secure
their identity and posterity, to protect their property rights and resources as well as to
establish a system of governance suitable and acceptable to them as a distinct
dominant people. The Parties respect the freedom of choice of the indigenous
peoples;" 25 and (4) The BJE is empowered "to build, develop and maintain its own
institutions, inclusive of, civil service, electoral, financial and banking, education,
legislation, legal, economic, and police and internal security force, judicial system and
correctional institutions, necessary for developing a progressive Bangsamoro society, . .
. ." 26Otherwise stated, respondents agreed to create a BJE out of the national
territory of the Republic, with a distinct and separate system of government from the
Republic of the Philippines. 27 SEIcHa
Notably, the United Nations Declaration on the Rights of Indigenous Peoples,
while recognizing the rights of indigenous peoples to self-determination, does not
give them the right to undermine the territorial integrity of a State. 28
Second. The creation of the BJE is prohibited even assuming that the MOA-AD
only attempts to create the BJE as an autonomous region. Only Congress is
empowered to create an autonomous region. 29
In fact, RA Nos. 6734 30 and 9054, 31 the laws creating and expanding the ARMM,
have already been passed by Congress. As a result of these Organic Acts,
the provinces of Lanao del Sur, Maguindanao, Sulu and Tawi-Tawi and the
City of Marawi voted to comprise the ARMM territory under the control of the Regional
Government of the ARMM. In the case ofthe MOA-AD, no implementing law is provided
to implement its terms. What it purports to do, instead, is to provide for
structures of government within the MOA-AD itself. It also obligates the GRP Panel to
"conduct and deliver" a plebiscite "within twelve (12) months following the signing of the
MOA-AD." 32
Third. The MOA-AD creates the Bangsamoro Homeland as an ancestral domain.
However, there is non-compliance with the procedure laid down under RA No.
8371, otherwise known as the Indigenous Peoples Rights Act (IPRA). True,
Article II, Section 22 of the 1987 Constitution recognizes the rights of all
indigenous peoples. 33 This, however, cannot be used in the MOA-AD as a blanket
authority to claim, without sufficient proof, a territory spanning an entire geographical
region, the entire Mindanao-Sulu-Palawan geographic region. 34
Indeed, Chapter VIII of the IPRA provides for stringent requirements and strict
process of delineation for recognition of ancestral domains, thus:
SEC. 51.Delineation and Recognition of Ancestral Domains. Self-
delineation shall be the guiding principle in the identification and
delineation of ancestral domains. As such, the ICCs/IPs concerned shall
have a decisive role in all the activities pertinent thereto. The Sworn
Statement of the Elders as to the scope of the territories and
agreements/pacts made with neighboring ICCs/IPs, if any, will be
essential to the determination of these traditional territories. The
Government shall take the necessary steps to identify lands which the
ICCs/IPs concerned traditionally occupy and guarantee effective
protection of their rights of ownership and possession thereto. Measures
shall be taken in appropriate cases to safeguard the right of the ICCs/IPs
concerned to land which they may no longer be exclusively occupied by
them, but to which they have traditionally had access for their
subsistence and traditional activities, particularly of ICCs/IPs who are still
nomadic and/or shifting cultivators. DAEICc
SEC. 52.Delineation Process. The identification and
delineation of ancestral domains shall be done in accordance with the
following procedures: EScAHT
xxx xxx xxx
(b)Petition for Delineation. The process of delineating a specific
perimeter may be initiated by the NCIP with the consent of the ICC/IP
concerned, or though a Petition for Delineation filed with the NCIP, by a
majority of the members of the ICCs/IPs.
(c)Delineation Proper. The official delineation of ancestral domain
boundaries including census of all community members therein, shall be
immediately undertaken by the Ancestral Domains Office upon
filing of the application by the ICCs/IPs concerned. Delineation will be
done in coordination with the community concerned and shall at all times
include genuine involvement and participation by the members of the
communities concerned.
(d)Proof Required. Proof of Ancestral Domain Claims shall include the
testimony of elders or community under oath, and other documents
directly or indirectly attesting to the possession or occupation of the area
since time immemorial by such ICCs/IPs in the concept of owners which
shall be any one (1) of the following authentic documents:
1)Written accounts of the ICCs/IPs customs and traditions;
2)Written accounts of the ICCs/IPs political structure and
institution;
3)Pictures showing long term occupation such as those of old
improvements, burial grounds, sacred places and old villages;
4)Historical accounts, including pacts and agreements concerning
boundaries entered into by the ICCs/IPs concerned with other
ICCs/IPs;
5)Survey plans and sketch maps;
6)Anthropological data;
7)Genealogical surveys;
8)Pictures and descriptive histories of traditional communal
forests and hunting grounds; HTcADC
9)Pictures and descriptive histories of traditional landmarks such
as mountains, rivers, creeks, ridges, hills, terraces and the like;
and
10)Write-ups of names and places derived from the native
dialect of the community.
(e)Preparation of Maps. On the basis of such investigation and the
findings of fact based thereon, the Ancestral Domains Office of the NCIP
shall prepare a perimeter map, complete with technical descriptions, and
a description of the natural features and landmarks embraced therein.
(f)Report of Investigation and Other Documents. A complete
copy of the preliminary census and a report of investigation, shall be
prepared by the Ancestral Domains Office of the NCIP.
(g)Notice and Publication. A copy of each document, including a
translation in the native language of the ICCs/IPs concerned shall be
posted in a prominent place therein for at least fifteen (15) days. A
copy of the document shall also be posted at the local, provincial and
regional offices of the NCIP, and shall be published in a
newspaper of general circulation once a week for two (2) consecutive
weeks to allow other claimants to file opposition thereto within fifteen
days (15) from dateof such publication: Provided, That in areas where no
such newspaper exists, broadcasting in a radio station will be a valid
substitute; Provided, further, That mere posting shall be deemed
sufficient if both newspaper and radio station are not available.
(h)Endorsement to NCIP. Within fifteen (15) days from publication,
and of the inspection process, the Ancestral Domains Office shall
prepare a report to the NCIP endorsing a favorable action upon a claim
that is deemed to have sufficient proof. However, if the proof is deemed
insufficient, the Ancestral Domains Office shall require the
submission of additional evidence; Provided, That the Ancestral
Domains Office shall reject any claim that is deemed patently false or
fraudulent after inspection and verification: Provided, further, That in
case of rejection, the Ancestral Domains Office shall give the applicant
due notice, copy furnished all concerned, containing the grounds for
denial. The denial shall be appealable to the NCIP. Provided,
furthermore, That in cases where there are conflicting claims among
ICCs/IPs on the boundaries of ancestral domain claims, the Ancestral
Domains Office shall cause the contending parties to meet and assist
them in coming up with a preliminary resolution of the conflict, without
prejudice to its full adjudication according to the Section below. aATESD

The MOA-AD is problematic when read in conjunction with the IPRA because it
does not present any proof or specific reference that all the territories it
enumerates accurately represent the "ancestral domains" of the Bangsamoro
Homeland. The MOA-AD assumes that these territories are included in the
Bangsamoro Homeland as ancestral domains, without proof or
identification of native title or other claim of ownership to all the affected areas.
Section 3 (g) of the IPRA 35 also requires that there be a "free and informed prior
consent" by the indigenous peoples concerned to be exercised through consultations
before any decision relating to their ancestral domain is made. This rule not only
guarantees the right to information 36 of the people in these areas, but also the
right of the indigenous peoples to "free and informed prior consent" as an
element of due process. 37 Obviously, respondents did not conduct the required
consultation before negotiating the terms ofthe MOA-AD. Otherwise, no petitions and
petitions-in-intervention would have been filed in the first place.
Fourth. Under the MOA-AD, the BJE is vested with jurisdiction, powers and
authority over land use, development, utilization, disposition and
exploitation of natural resources within the Bangsamoro Homeland. 38 In doing so,
respondents in effect surrendered to the BJE ownership and gave it full control and
supervision over the exploration, development, utilization over the natural resources
which belong to the State. This is in clear contravention of the Regalian Doctrine now
expressed under Article XII, Section 2 ofthe 1987 Constitution, thus:
All lands of the public domain, waters, minerals, coal, petroleum, and
other mineral oils, all forces of potential energy, fisheries, forests or
timber, wildlife, flora and fauna, and other natural resources are owned
by the State. With the exception of agricultural lands, all other natural
resources shall not be alienated. The exploration, development, and
utilization of natural resources shall be under the full control and
supervision of the State. The State may directly undertake such
activities, or it may enter into co-production, joint venture, or production-
sharing agreements with Filipino citizens, or corporations or associations
at least sixty per centum of whose capital is owned by such citizens.
Such agreements may be for a period not exceeding twenty-five years,
renewable for not more than twenty-five years, and under such terms
and conditions as may be provided by law. In cases of water rights for
irrigation, water supply fisheries, or industrial uses other than the
development of water power, beneficial use may be the measure and
limit of the grant. IAEcCT
The State shall protect the nation's marine wealth in its archipelagic
waters, territorial sea, and exclusive economic zone, and reserve its use
and enjoyment exclusively to Filipino citizens.
The Congress may, by law, allow small-scale utilization of natural
resources by Filipino citizens, as well as cooperative fish farming, with
priority to subsistence fishermen and fish-workers in rivers, lakes, bays,
and lagoons.
The President may enter into agreements with foreign-owned
corporations involving either technical or financial assistance for large-
scale exploration, development, and utilization of minerals, petroleum,
and other mineral oils according to the general terms and conditions
provided by law, based on real contributions to the economic growth and
general welfare of the country. In such agreements, the State shall
promote the development and use of local scientific and technical
resources. ETDHSa
The President shall notify the Congress of every contract entered into in
accordance with this provision, within thirty days from its execution.
Fifth. The MOA-AD also grants to the BJE powers to enter into any economic
cooperation and trade relations with foreign countries. It compels the
Republic of the Philippines to ensure the BJE's participation in international
meetings and events, participation in Philippine official missions and delegations
engaged in the negotiation of, among others, border agreements,
sharing of incomes and revenues. 39 Thus, by assenting to install an intra sovereign
political subdivision independent of the single sovereign state that is the Republic of the
Philippines, respondents violated not only the Constitution, Article V, Section 2 of RA
No. 6734, 40 but also the unitary system of government of the Republic of the
Philippines.
Sixth. Article 1, Section 1 of the 1987 Constitution provides:
The national territory comprises the Philippine archipelago, with all the
islands and waters embraced therein, and all other territories over which
the Philippines has sovereignty or jurisdiction, consisting of its terrestrial,
fluvial and aerial domains, including its territorial sea, the seabed, the
subsoil, the insular shelves, and other submarine areas. The waters
around, between, and connecting the islands of the archipelago,
regardless of their breadth and dimensions, form part of the internal
waters of the Philippines.
Without the benefit of any factual determination, the MOA-AD dismembers
parts of Mindanao, turning it into a geographical dalmatian. It creates a
Bangsamoro Homeland with a specified land mass, maritime, terrestrial, fluvial
and alluvial dominions, (with definite internal 41 and territorial 42 waters), aerial
domain, atmospheric space, 43 and even distinct "territorial waters" within the RP
baselines. 44
Seventh. The MOA-AD grants to the BJE plenary power to undo executive acts
and delegate to the BJE the authority to revoke existing proclamations,
issuances, policies, rules and guidelines, forest concessions, timber licenses,
contracts or agreements in the utilization of natural resources, mining
concessions, land tenure instruments. 45 This constitutes an undue
delegation of executive power. The President may delegate its executive power only
to local government units or an administrative body attached to the executive
department. 46 The delegation of power to the BJE, on the other hand, is
delegation of executive power to an entirely different juridical entity that is not
under its supervision or control. That is impermissible.
Eighth. The MOA-AD empowers the BJE to build, develop, and maintain its own
institutions. This includes civil service, electoral, financial and banking
institutions, education, legislation, legal, economic, police, internal security force,
and judicial system. 47 This is anathema to several provisions of the Constitution,
namely: (1) the authority of the Commission on Elections to administer all election laws
in the Philippines; 48 (2) that there shall only be one police force, national in scope to be
administered and controlled by the National Police Commission; 49 (3) that the
defense of the Republic shall belong exclusively to the Armed Forces of the
Philippines; 50 (4) that judicial power shall be vested in one Supreme Court and in such
other inferior courts as may be established by law; 51 (5) that there shall only be one
independent central monetary authority, the Bangko Sentral ng Pilipinas; 52 and (6) that
there shall be one independent economic planning agency. 53
All told, respondents appear to have committed grave abuse abuse of discretion
in negotiating and initialing the MOA-AD. Grave abuse of discretion has been
traditionally understood as implying such capricious and whimsical
exercise of judgment as is equivalent to lack of jurisdiction, or, in other words
where the power is exercised in an arbitrary or despotic manner. 54 The definition
has been expanded because now, grave abuse of discretion exists when there is a
contravention of the Constitution, the law and jurisprudence. 55 DSAacC
Negotiate within the Constitutional bounds
During the American Civil War, the Union had to win the Confederates and bring
them back to the fold. It was the bloodiest war the United States ever had. But
what made the war most pathetic is that it was fought by countrymen, people
who called themselves brothers. With the recent hostilities in the South, I hope
the day will not come for a full-scale civil war in this land we all proudly call
Home. It is our solemn duty to avert that war.
The aborted MOA-AD is a setback to the government. But the setback is only
temporary, not a permanent one. The path to peace is long. But it can be
travelled. On one hand, the government should be commended in its effort to
bring lasting peace to the South. On the other hand, it needs to be reminded that
any negotiation it enters into, even in the name of peace, should be within the
parameters of the Constitution.
WHEREFORE, I vote to GRANT the petitions and petitions-in-intervention and to
strike down the MOA-AD as UNCONSTITUTIONAL.
||| (Province of North Cotabato v. Republic, G.R. No. 183591, 183752, 183893,
183951, 183962, October 14, 2008)