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The heart of this controversy brought to us by way of a petition for prohibition under
Rule 65 of the Rules of Court is the right of the people to directly propose amendments
to the Constitution through the system of initiative under Section 2 of Article XVII of the
1987 Constitution. Undoubtedly, this demands special attention, as this system of
initiative was unknown to the people of this country, except perhaps to a few scholars,
before the drafting of the 1987 Constitution. The 1986 Constitutional Commission itself,
through the original proponent and the main sponsor of the proposed Article on
Amendments or Revision of the Constitution, characterized this system as innovative.
Indeed it is, for both under the 1935 and 1973 Constitutions, only two methods of
proposing amendments to, or revision of, the Constitution were recognized, viz., (1) by
Congress upon a vote of three-fourths of all its members and (2) by a constitutional
convention. For this and the other reasons hereafter discussed, we resolved to give
due course to this petition.
[1]
[2]
[3]
[4]
On 6 December 1996, private respondent Atty. Jesus S. Delfin filed with public
respondent Commission on Elections (hereafter, COMELEC) a Petition to Amend the
Constitution, to Lift Term Limits of Elective Officials, by Peoples Initiative (hereafter,
Delfin Petition) wherein Delfin asked the COMELEC for an order
[5]
1. Fixing the time and dates for signature gathering all over the country;
2. Causing the necessary publications of said Order and the attached Petition for
Initiative on the 1987 Constitution, in newspapers of general and local circulation;
3. Instructing Municipal Election Registrars in all Regions of the Philippines, to assist
Petitioners and volunteers, in establishing signing stations at the time and on the
dates designated for the purpose.
Delfin alleged in his petition that he is a founding member of the Movement for
Peoples Initiative, a group of citizens desirous to avail of the system intended to
institutionalize people power; that he and the members of the Movement and other
volunteers intend to exercise the power to directly propose amendments to the
Constitution granted under Section 2, Article XVII of the Constitution; that the exercise
of that power shall be conducted in proceedings under the control and supervision of
the COMELEC; that, as required in COMELEC Resolution No. 2300, signature stations
shall be established all over the country, with the assistance of municipal election
registrars, who shall verify the signatures affixed by individual signatories; that before
the Movement and other volunteers can gather signatures, it is necessary that the time
and dates to be designated for the purpose be first fixed in an order to be issued by the
COMELEC; and that to adequately inform the people of the electoral process involved,
it is likewise necessary that the said order, as well as the Petition on which the
signatures shall be affixed, be published in newspapers of general and local circulation,
under the control and supervision of the COMELEC.
[6]
The Delfin Petition further alleged that the provisions sought to be amended are
Sections 4 and 7 of Article VI, Section 4 of Article VII, and Section 8 of Article X of the
Constitution.Attached to the petition is a copy of a Petition for Initiative on the 1987
Constitution embodying the proposed amendments which consist in the deletion from
the aforecited sections of the provisions concerning term limits, and with the following
proposition:
[7]
[8]
[9]
[10]
At the hearing of the Delfin Petition on 12 December 1996, the following appeared:
Delfin and Atty. Pete Q. Quadra; representatives of the Peoples Initiative for Reforms,
After hearing their arguments, the COMELEC directed Delfin and the oppositors to
file their memoranda and/or oppositions/memoranda within five days.
[13]
(1) The constitutional provision on peoples initiative to amend the Constitution can
only be implemented by law to be passed by Congress. No such law has been passed;
in fact, Senate Bill No. 1290 entitledAn Act Prescribing and Regulating
Constitutional Amendments by Peoples Initiative, which petitioner Senator Santiago
filed on 24 November 1995, is still pending before the Senate Committee on
Constitutional Amendments.
(2) It is true that R.A. No. 6735 provides for three systems of initiative, namely,
initiative on the Constitution, on statutes, and on local legislation. However, it failed
to provide any subtitle on initiative on the Constitution, unlike in the other modes of
initiative, which are specifically provided for in Subtitle II and Subtitle III. This
deliberate omission indicates that the matter of peoples initiative to amend the
Constitution was left to some future law. Former Senator Arturo Tolentino stressed
this deficiency in the law in his privilege speech delivered before the Senate in 1994:
There is not a single word in that law which can be considered as implementing [the
provision on constitutional initiative]. Such implementing provisions have been
obviously left to a separate law.
(3) Republic Act No. 6735 provides for the effectivity of the law after publication in
print media. This indicates that the Act covers only laws and not constitutional
amendments because the latter take effect only upon ratification and not after
publication.
(4) COMELEC Resolution No. 2300, adopted on 16 January 1991 to govern the
conduct of initiative on the Constitution and initiative and referendum on national and
local laws, is ultra vires insofar asinitiative on amendments to the Constitution is
concerned, since the COMELEC has no power to provide rules and regulations for the
exercise of the right of initiative to amend the Constitution. Only Congress is
authorized by the Constitution to pass the implementing law.
On 19 December 1996, this Court (a) required the respondents to comment on the
petition within a non-extendible period of ten days from notice; and (b) issued a
temporary restraining order, effective immediately and continuing until further orders,
enjoining public respondent COMELEC from proceeding with the Delfin Petition, and
private respondents Alberto and Carmen Pedrosa from conducting a signature drive for
peoples initiative to amend the Constitution.
On 2 January 1997, private respondents, through Atty Quadra, filed their
Comment on the petition. They argue therein that:
[15]
Petition, which was legally necessary to start the signature campaign to amend the
Constitution or to put the movement to gather signatures under COMELEC power and
function. On the substantive allegations of the petitioners, Delfin maintains as follows:
(1) Contrary to the claim of the petitioners, there is a law, R.A. No. 6735, which
governs the conduct of initiative to amend the Constitution. The absence therein of a
subtitle for such initiative is not fatal, since subtitles are not requirements for the
validity or sufficiency of laws.
(2) Section 9(b) of R.A. No. 6735 specifically provides that the proposition in
an initiative to amend the Constitution approved by the majority of the votes cast in
the plebiscite shall become effective as of the day of the plebiscite.
(3) The claim that COMELEC Resolution No. 2300 is ultra vires is contradicted by
(a) Section 2, Article IX-C of the Constitution, which grants the COMELEC the
power to enforce and administer all laws and regulations relative to the conduct of an
election, plebiscite, initiative, referendum, and recall; and (b) Section 20 of R.A.
6735, which empowers the COMELEC to promulgate such rules and regulations as
may be necessary to carry out the purposes of the Act.
(4) The proposed initiative does not involve a revision of, but mere amendment to, the
Constitution because it seeks to alter only a few specific provisions of the
Constitution, or more specifically, only those which lay term limits. It does not seek to
reexamine or overhaul the entire document.
As to the public expenditures for registration of voters, Delfin considers petitioners
estimate of P180 million as unreliable, for only the COMELEC can give the exact
figure. Besides, if there will be a plebiscite it will be simultaneous with the 1997
Barangay Elections. In any event, fund requirements for initiative will be a priority
government expense because it will be for the exercise of the sovereign power of the
people.
In the Comment for the public respondent COMELEC, filed also on 2 January
1997, the Office of the Solicitor General contends that:
[17]
(1) R.A. No. 6735 deals with, inter alia, peoples initiative to amend the
Constitution. Its Section 2 on Statement of Policy explicitly affirms, recognizes, and
guarantees that power; and its Section 3, which enumerates the three systems
of initiative, includes initiative on the Constitution and defines the same as the power
to propose amendments to the Constitution. Likewise, its Section 5 repeatedly
mentionsinitiative on the Constitution.
(2) A separate subtitle on initiative on the Constitution is not necessary in R.A. No.
6735 because, being national in scope, that system of initiative is deemed included in
the subtitle on National Initiative and Referendum; and Senator Tolentino simply
overlooked pertinent provisions of the law when he claimed that nothing therein was
provided for initiative on the Constitution.
(3) Senate Bill No. 1290 is neither a competent nor a material proof that R.A. No.
6735 does not deal with initiative on the Constitution.
(4) Extension of term limits of elected officials constitutes a mere amendment to the
Constitution, not a revision thereof.
(5) COMELEC Resolution No. 2300 was validly issued under Section 20 of R.A. No.
6735 and under the Omnibus Election Code. The rule-making power of the
COMELEC to implement the provisions of R.A. No. 6735 was in fact upheld by this
Court in Subic Bay Metropolitan Authority vs. COMELEC .
On 14 January 1997, this Court (a) confirmed nunc pro tunc the temporary
restraining order; (b) noted the aforementioned Comments and the Motion to Lift
Temporary Restraining Order filed by private respondents through Atty. Quadra, as well
as the latters Manifestation stating that he is the counsel for private respondents Alberto
and Carmen Pedrosa only and the Comment he filed was for the Pedrosas; and (c)
granted the Motion for Intervention filed on 6 January 1997 by Senator Raul Roco and
allowed him to file his Petition in Intervention not later than 20 January 1997; and (d) set
the case for hearing on 23 January 1997 at 9:30 a.m.
On 17 January 1997, the Demokrasya-Ipagtanggol ang Konstitusyon (DIK) and the
Movement of Attorneys for Brotherhood Integrity and Nationalism, Inc. (MABINI), filed a
Motion for Intervention. Attached to the motion was their Petition in Intervention, which
was later replaced by an Amended Petition in Intervention wherein they contend that:
(1) The Delfin proposal does not involve a mere amendment to, but a revision of, the
Constitution because, in the words of Fr. Joaquin Bernas, S.J., it would involve a
change from a political philosophy that rejects unlimited tenure to one that accepts
unlimited tenure; and although the change might appear to be an isolated one, it can
affect other provisions, such as, on synchronization of elections and on the State
policy of guaranteeing equal access to opportunities for public service and prohibiting
political dynasties. A revision cannot be done by initiative which, by express
provision of Section 2 of Article XVII of the Constitution, is limited to amendments.
[18]
[19]
(2) The prohibition against reelection of the President and the limits provided for all
other national and local elective officials are based on the philosophy of governance,
to open up the political arena to as many as there are Filipinos qualified to handle the
demands of leadership, to break the concentration of political and economic powers in
the hands of a few, and to promote effective proper empowerment for participation in
policy and decision-making for the common good; hence, to remove the term limits is
to negate and nullify the noble vision of the 1987 Constitution.
(3) The Delfin proposal runs counter to the purpose of initiative, particularly in a
conflict-of-interest situation. Initiative is intended as a fallback position that may be
availed of by the people only if they are dissatisfied with the performance of their
elective officials, but not as a premium for good performance.
[20]
(4) R.A. No. 6735 is deficient and inadequate in itself to be called the enabling law
that implements the peoples initiative on amendments to the Constitution. It fails to
state (a) the proper parties who may file the petition, (b) the appropriate agency before
whom the petition is to be filed, (c) the contents of the petition, (d) the publication of
the same, (e) the ways and means of gathering the signatures of the voters nationwide
and 3% per legislative district, (f) the proper parties who may oppose or question the
veracity of the signatures, (g) the role of the COMELEC in the verification of the
signatures and the sufficiency of the petition, (h) the appeal from any decision of the
COMELEC, (I) the holding of a plebiscite, and (g) the appropriation of funds for such
peoples initiative. Accordingly, there being no enabling law, the COMELEC has no
jurisdiction to hear Delfins petition.
(5) The deficiency of R.A. No. 6735 cannot be rectified or remedied by COMELEC
Resolution No. 2300, since the COMELEC is without authority to legislate the
procedure for a peoples initiative under Section 2 of Article XVII of the
Constitution. That function exclusively pertains to Congress. Section 20 of R.A. No.
6735 does not constitute a legal basis for the Resolution, as the former does not set a
sufficient standard for a valid delegation of power.
On 20 January 1997, Senator Raul Roco filed his Petition in Intervention. He avers
that R.A. No. 6735 is the enabling law that implements the peoples right to initiate
constitutional amendments. This law is a consolidation of Senate Bill No. 17 and House
Bill No. 21505; he co-authored the House Bill and even delivered a sponsorship speech
thereon. He likewise submits that the COMELEC was empowered under Section 20 of
that law to promulgate COMELEC Resolution No. 2300. Nevertheless, he contends that
the respondent Commission is without jurisdiction to take cognizance of the Delfin
Petition and to order its publication because the said petition is not the initiatory
pleading contemplated under the Constitution, Republic Act No. 6735, and COMELEC
Resolution No. 2300. What vests jurisdiction upon the COMELEC in an initiative on the
Constitution is the filing of a petition for initiative which is signed by the required number
of registered voters. He also submits that the proponents of a constitutional amendment
cannot avail of the authority and resources of the COMELEC to assist them is securing
the required number of signatures, as the COMELECs role in an initiative on the
Constitution is limited to the determination of the sufficiency of the initiative petition and
the call and supervision of a plebiscite, if warranted.
[21]
(1) Congress has failed to enact an enabling law mandated under Section 2, Article
XVII of the 1987 Constitution.
(2) COMELEC Resolution No. 2300 cannot substitute for the required implementing
law on the initiative to amend the Constitution.
(3) The Petition for Initiative suffers from a fatal defect in that it does not have the
required number of signatures.
(4) The petition seeks, in effect a revision of the Constitution, which can be proposed
only by Congress or a constitutional convention.
[22]
1. Whether R.A. No. 6735, entitled An Act Providing for a System of Initiative and
Referendum and Appropriating Funds Therefor, was intended to include or
cover initiative on amendments to the Constitution; and if so, whether the Act, as
worded, adequately covers such initiative.
2. Whether that portion of COMELEC Resolution No. 2300 (In re: Rules and
Regulations Governing the Conduct of Initiative on the Constitution, and Initiative
and Referendum on National and Local Laws) regarding the conduct of initiative on
amendments to the Constitution is valid, considering the absence in the law of specific
provisions on the conduct of such initiative.
3. Whether the lifting of term limits of elective national and local officials, as
proposed in the draft Petition for Initiative on the 1987 Constitution, would constitute
a revision of, or an amendment to, the Constitution.
4. Whether the COMELEC can take cognizance of, or has jurisdiction over, a petition
solely intended to obtain an order (a) fixing the time and dates for signature gathering;
(b) instructing municipal election officers to assist Delfin's movement and volunteers
in establishing signature stations; and (c) directing or causing the publication of, inter
alia, the unsigned proposed Petition for Initiative on the 1987 Constitution.
5. Whether it is proper for the Supreme Court to take cognizance of the petition when
there is a pending case before the COMELEC.
After hearing them on the issues, we required the parties to submit simultaneously
their respective memoranda within twenty days and requested intervenor Senator Roco
to submit copies of the deliberations on House Bill No. 21505.
On 27 January 1997, LABAN filed its Petition in Intervention wherein it adopts the
allegations and arguments in the main Petition. It further submits that the COMELEC
should have dismissed the Delfin Petition for failure to state a sufficient cause of action
and that the Commissions failure or refusal to do so constituted grave abuse of
discretion amounting to lack of jurisdiction.
On 28 January 1997, Senator Roco submitted copies of portions of both the Journal
and the Record of the House of Representatives relating to the deliberations of House
Bill No. 21505, as well as the transcripts of stenographic notes on the proceedings of
the Bicameral Conference Committee, Committee on Suffrage and Electoral Reforms,
of 6 June 1989 on House Bill No. 21505 and Senate Bill No. 17.
Private respondents Alberto and Carmen Pedrosa filed their Consolidated
Comments on the Petitions in Intervention of Senator Roco, DIK and MABINI, and IBP.
The parties thereafter filed, in due time, their separate memoranda.
[23]
[24]
As we stated in the beginning, we resolved to give due course to this special civil
action.
For a more logical discussion of the formulated issues, we shall first take up the fifth
issue which appears to pose a prejudicial procedural question.
I
28. The Comelec has no jurisdiction to take cognizance of the petition filed by private
respondent Delfin. This being so, it becomes imperative to stop the Comelec from
proceeding any further, and under the Rules of Court, Rule 65, Section 2, a petition
for prohibition is the proper remedy.
29. The writ of prohibition is an extraordinary judicial writ issuing out of a court of
superior jurisdiction and directed to an inferior court, for the purpose of preventing the
inferior tribunal from usurping a jurisdiction with which it is not legally vested.
(People v. Vera, supra., p. 84). In this case the writ is an urgent necessity, in view of
the highly divisive and adverse environmental consequences on the body politic of the
questioned Comelec order. The consequent climate of legal confusion and political
instability begs for judicial statesmanship.
30. In the final analysis, when the system of constitutional law is threatened by the
political ambitions of man, only the Supreme Court can save a nation in peril and
uphold the paramount majesty of the Constitution.
[25]
It must be recalled that intervenor Roco filed with the COMELEC a motion to
dismiss the Delfin Petition on the ground that the COMELEC has no jurisdiction or
authority to entertain the petition. The COMELEC made no ruling thereon evidently
because after having heard the arguments of Delfin and the oppositors at the hearing
on 12 December 1996, it required them to submit within five days their memoranda or
oppositions/memoranda. Earlier, or specifically on 6 December 1996, it practically
gave due course to the Delfin Petition by ordering Delfin to cause the publication of the
petition, together with the attached Petition for Initiative, the signature form, and the
notice of hearing; and by setting the case for hearing. The COMELECs failure to act on
Rocos motion to dismiss and its insistence to hold on to the petition rendered ripe and
viable the instant petition under Section 2 of Rule 65 of the Rules of Court, which
provides:
[26]
[27]
instant case may likewise be treated as a special civil action for certiorari under Section
I of Rule 65 of the Rules of Court.
In any event, as correctly pointed out by intervenor Roco in his Memorandum, this
Court may brush aside technicalities of procedure in cases of transcendental
importance. As we stated in Kilosbayan, Inc. v. Guingona, Jr.:
[28]
A partys standing before this Court is a procedural technicality which it may, in the
exercise of its discretion, set aside in view of the importance of issues raised. In the
landmark Emergency Powers Cases, this Court brushed aside this technicality because
the transcendental importance to the public of these cases demands that they be settled
promptly and definitely, brushing aside, if we must, technicalities of procedure.
II
Without implementing legislation Section 2 cannot operate. Thus, although this mode
of amending the Constitution is a mode of amendment which bypasses congressional
action, in the last analysis it still is dependent on congressional action.
Bluntly stated, the right of the people to directly propose amendments to the
Constitution through the system of initiative would remain entombed in the cold niche of
the Constitution until Congress provides for its implementation. Stated otherwise, while
the Constitution has recognized or granted that right, the people cannot exercise it if
Congress, for whatever reason, does not provide for its implementation.
This system of initiative was originally included in Section 1 of the draft Article on
Amendment or Revision proposed by the Committee on Amendments and Transitory
Provisions of the 1986 Constitutional Commission in its Committee Report No. 7
(Proposed Resolution No. 332). That section reads as follows:
[30]
SECTION 1. Any amendment to, or revision of, this Constitution may be proposed:
(a) by the National Assembly upon a vote of three-fourths of all its members; or
(b) by a constitutional convention; or
(c) directly by the people themselves thru initiative as provided for in Article ____
Section ____ of the Constitution.
[31]
After several interpellations, but before the period of amendments, the Committee
submitted a new formulation of the concept of initiative which it denominated as Section
2; thus:
MR. SUAREZ. Thank you, Madam President. May we respectfully call attention of
the Members of the Commission that pursuant to the mandate given to us last night,
we submitted this afternoon a complete Committee Report No. 7 which embodies the
proposed provision governing the matter of initiative. This is now covered by Section
2 of the complete committee report. With the permission of the Members, may I quote
Section 2:
The people may, after five years from the date of the last plebiscite held, directly
propose amendments to this Constitution thru initiative upon petition of at least ten
percent of the registered voters.
This completes the blanks appearing in the original Committee Report No. 7.
[32]
The interpellations on Section 2 showed that the details for carrying out Section
2 are left to the legislature. Thus:
MR. SUAREZ. That matter was also taken up during the committee hearing,
especially with respect to the budget appropriations which would have to be legislated
so that the plebiscite could be called. We deemed it best that this matter be left to the
legislature. The Gentleman is right. In any event, as envisioned, no amendment
through the power of initiative can be called until after five years from the date of the
ratification of this Constitution. Therefore, the first amendment that could be proposed
through the exercise of this initiative power would be after five years. It is reasonably
expected that within that five-year period, the National Assembly can come up with
the appropriate rules governing the exercise of this power.
FR. BERNAS. Since the matter is left to the legislature - the details on how this is to
be carried out - is it possible that, in effect, what will be presented to the people for
ratification is the work of the legislature rather than of the people? Does this provision
exclude that possibility?
MR. SUAREZ. No, it does not exclude that possibility because even the legislature
itself as a body could propose that amendment, maybe individually or collectively, if
it fails to muster the three-fourths vote in order to constitute itself as a constituent
assembly and submit that proposal to the people for ratification through the process of
an initiative.
xxx
MS. AQUINO. Do I understand from the sponsor that the intention in the proposal is
to vest constituent power in the people to amend the Constitution?
MR. SUAREZ. That is absolutely correct, Madam President.
MS. AQUINO. I fully concur with the underlying precept of the proposal in terms of
institutionalizing popular participation in the drafting of the Constitution or in the
amendment thereof, but I would have a lot of difficulties in terms of accepting the
draft of Section 2, as written. Would the sponsor agree with me that in the hierarchy of
legal mandate, constituent power has primacy over all other legal mandates?
MR. SUAREZ. The Commissioner is right, Madam President.
MS. AQUINO. And would the sponsor agree with me that in the hierarchy of legal
values, the Constitution is source of all legal mandates and that therefore we require a
great deal of circumspection in the drafting and in the amendments of the
Constitution?
MR. SUAREZ. That proposition is nondebatable.
MS. AQUINO. Such that in order to underscore the primacy of constituent power we
have a separate article in the constitution that would specifically cover the process and
the modes of amending the Constitution?
MR. SUAREZ. That is right, Madam President.
MS. AQUINO. Therefore, is the sponsor inclined, as the provisions are drafted
now, to again concede to the legislature the process or the requirement of determining
the mechanics of amending the Constitution by people's initiative?
MR. SUAREZ. The matter of implementing this could very well be placed in the
hands of the National Assembly, not unless we can incorporate into this provision the
mechanics that would adequately cover all the conceivable situations.
[33]
It was made clear during the interpellations that the aforementioned Section 2 is
limited to proposals to AMEND -- not to REVISE -- the Constitution; thus:
MR. SUAREZ. ... This proposal was suggested on the theory that this matter of
initiative, which came about because of the extraordinary developments this year, has
to be separated from the traditional modes of amending the Constitution as embodied
in Section 1. The committee members felt that this system of initiative should not
extend to the revision of the entire Constitution, so we removed it from the operation
of Section 1 of the proposed Article on Amendment or Revision.
[34]
xxx
MS. AQUINO. In which case, I am seriously bothered by providing this process of
initiative as a separate section in the Article on Amendment. Would the sponsor be
amenable to accepting an amendment in terms of realigning Section 2 as another
subparagraph (c) of Section 1, instead of setting it up as another separate section as if
it were a self-executing provision?
MR. SUAREZ. We would be amenable except that, as we clarified a while ago, this
process of initiative is limited to the matter of amendment and should not expand into
a revision which contemplates a total overhaul of the Constitution. That was the sense
that was conveyed by the Committee.
MS. AQUINO. In other words, the Committee was attempting to distinguish the
coverage of modes (a) and (b) in Section 1 to include the process of revision; whereas
the process of initiation to amend, which is given to the public, would only apply to
amendments?
MR. SUAREZ.That is right. Those were the terms envisioned in the Committee.
[35]
MR. DAVIDE. Thank you Madam President. I propose to substitute the entire Section
2 with the following:
xxx
MR. DAVIDE. Madam President, I have modified the proposed amendment after
taking into account the modifications submitted by the sponsor himself and the
honorable Commissioners Guingona, Monsod, Rama, Ople, de los Reyes and
Romulo. The modified amendment in substitution of the proposed Section 2 will now
read as follows: "SECTION 2. -- AMENDMENTS TO THIS CONSTITUTION MAY
LIKEWISE BE DIRECTLY PROPOSED BY THE PEOPLE THROUGH
INITIATIVE UPON A PETITION OF AT LEAST TWELVE PERCENT OF THE
TOTAL NUMBER OF REGISTERED VOTERS, OF WHICH EVERY
LEGISLATIVE DISTRICT MUST BE REPRESENTED BY AT LEAST THREE
PERCENT OF THE REGISTERED VOTERS THEREOF. NO AMENDMENT
UNDER THIS SECTION SHALL BE AUTHORIZED WITHIN FIVE YEARS
FOLLOWING THE RATIFICATION OF THIS CONSTITUTION NOR OFTENER
THAN ONCE EVERY FIVE YEARS THEREAFTER.
THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE FOR THE
IMPLEMENTATION OF THE EXERCISE OF THIS RIGHT.
MR. SUAREZ. Madam President, considering that the proposed amendment is
reflective of the sense contained in Section 2 of our completed Committee Report No.
7, we accept the proposed amendment.
[36]
MR. ROMULO. But the Commissioners amendment does not prevent the legislature
from asking another body to set the proposition in proper form.
MR. DAVIDE. The Commissioner is correct. In other words, the implementation of
this particular right would be subject to legislation, provided the legislature
cannot determine anymore the percentage of the requirement.
MR. ROMULO. But the procedures, including the determination of the proper form
for submission to the people, may be subject to legislation.
MR. DAVIDE. As long as it will not destroy the substantive right to initiate. In other
words, none of the procedures to be proposed by the legislative body must diminish or
impair the right conceded here.
MR. ROMULO. In that provision of the Constitution can the procedures which I have
discussed be legislated?
MR. DAVIDE. Yes.
[37]
MR. DAVIDE. A distinction has to be made that under this proposal, what is involved
is an amendment to the Constitution. To amend a Constitution would ordinarily
require a proposal by the National Assembly by a vote of three-fourths; and to call a
constitutional convention would require a higher number. Moreover, just to submit the
issue of calling a constitutional convention, a majority of the National Assembly is
required, the import being that the process of amendment must be made more rigorous
and difficult than probably initiating an ordinary legislation or putting an end to a law
proposed by the National Assembly by way of a referendum. I cannot agree to
reducing the requirement approved by the Committee on the Legislative because it
would require another voting by the Committee, and the voting as precisely based on
a requirement of 10 percent. Perhaps, I might present such a proposal, by way of an
amendment, when the Commission shall take up the Article on the Legislative or on
the National Assembly on plenary sessions.
[39]
[42]
[44]
The conclusion then is inevitable that, indeed, the system of initiative on the
Constitution under Section 2 of Article XVII of the Constitution is not self-executory.
Has Congress provided for the implementation of the exercise of this right? Those
who answer the question in the affirmative, like the private respondents and intervenor
Senator Roco, point to us R.A. No. 6735.
There is, of course, no other better way for Congress to implement the exercise of
the right than through the passage of a statute or legislative act. This is the essence or
rationale of the last minute amendment by the Constitutional Commission to substitute
the last paragraph of Section 2 of Article XVII then reading:
The Congress shall by law provide for the implementation of the exercise of this right.
[45]
with
The Congress shall provide for the implementation of the exercise of this right.
This substitute amendment was an investiture on Congress of a power to provide
for the rules implementing the exercise of the right. The rules means the details on how
[the right] is to be carried out.
[46]
We agree that R.A. No. 6735 was, as its history reveals, intended to
cover initiative to propose amendments to the Constitution. The Act is a consolidation of
House Bill No. 21505 and Senate Bill No. 17. The former was prepared by the
Committee on Suffrage and Electoral Reforms of the House of Representatives on the
basis of two House Bills referred to it, viz., (a) House Bill No. 497, which dealt with the
initiative and referendum mentioned in Sections 1 and 32 of Article VI of the
Constitution; and (b) House Bill No. 988, which dealt with the subject matter of House
Bill No. 497, as well as with initiative and referendum under Section 3 of Article X (Local
Government) and initiative provided for in Section 2 of Article XVII of the
Constitution. Senate Bill No. 17 solely dealt with initiative and referendum concerning
ordinances or resolutions of local government units. The Bicameral Conference
Committee consolidated Senate Bill No. 17 and House Bill No. 21505 into a draft bill,
which was subsequently approved on 8 June 1989 by the Senate and by the House of
Representatives. This approved bill is now R.A. No. 6735.
[47]
[48]
[49]
[50]
[51]
But is R.A. No. 6735 a full compliance with the power and duty of Congress to
provide for the implementation of the exercise of the right?
A careful scrutiny of the Act yields a negative answer.
First. Contrary to the assertion of public respondent COMELEC, Section 2 of the Act
does not suggest an initiative on amendments to the Constitution. The said section
reads:
SECTION 2. Statement and Policy. -- The power of the people under a system of
initiative and referendum to directly propose, enact, approve or reject, in whole or in
part, the Constitution, laws, ordinances, or resolutions passed by any legislative
body upon compliance with the requirements of this Act is hereby affirmed,
recognized and guaranteed. (Underscoring supplied).
The inclusion of the word Constitution therein was a delayed afterthought. That word is
neither germane nor relevant to said section, which exclusively relates to initiative and
referendum on national laws and local laws, ordinances, and resolutions. That section is
Second. It is true that Section 3 (Definition of Terms) of the Act defines initiative on
amendments to the Constitution and mentions it as one of the three systems
of initiative, and that Section 5 (Requirements) restates the constitutional requirements
as to the percentage of the registered voters who must submit the proposal. But unlike
in the case of the other systems ofinitiative, the Act does not provide for the contents of
a petition for initiative on the Constitution. Section 5, paragraph (c) requires, among
other things, statement of the proposed law sought to be enacted, approved or rejected,
amended or repealed, as the case may be. It does not include, as among the contents
of the petition, the provisions of the Constitution sought to be amended, in the case of
initiative on the Constitution. Said paragraph (c) reads in full as follows:
Congress intended R.A. No. 6735 to fully provide for the implementation of
the initiative on amendments to the Constitution, it could have provided for a subtitle
therefor, considering that in the order of things, the primacy of interest, or hierarchy of
values, the right of the people to directly propose amendments to the Constitution is far
more important than the initiative on national and local laws.
We cannot accept the argument that the initiative on amendments to the
Constitution is subsumed under the subtitle on National Initiative and Referendum
because it is national in scope. Our reading of Subtitle II (National Initiative and
Referendum) and Subtitle III (Local Initiative and Referendum) leaves no room for doubt
that the classification is not based on thescope of the initiative involved, but on
its nature and character. It is national initiative, if what is proposed to be adopted or
enacted is a national law, or a law which only Congress can pass.It is local initiative if
what is proposed to be adopted or enacted is a law, ordinance, or resolution which only
the legislative bodies of the governments of the autonomous regions, provinces, cities,
municipalities, and barangays can pass. This classification of initiative
into national and local is actually based on Section 3 of the Act, which we quote for
emphasis and clearer understanding:
(b) The proposition in an initiative on the Constitution approved by the majority of the
votes cast in the plebiscite shall become effective as to the day of the plebiscite.
(c) A national or local initiative proposition approved by majority of the votes cast in
an election called for the purpose shall become effective fifteen (15) days after
certification and proclamation of the Commission. (Underscoring supplied).
(2) that portion of Section 11 (Indirect Initiative) referring to indirect initiative with the
legislative bodies of local governments; thus:
SEC. 11. Indirect Initiative. -- Any duly accredited peoples organization, as defined
by law, may file a petition for indirect initiative with the House of Representatives,
and other legislative bodies....
and (3) Section 12 on Appeal, since it applies to decisions of the COMELEC on the
findings of sufficiency or insufficiency of the petition for initiative or referendum, which
could be petitions for both national and local initiative and referendum.
Upon the other hand, Section 18 on Authority of Courts under subtitle III on Local
Initiative and Referendum is misplaced, since the provision therein applies to both
national and local initiative and referendum. It reads:
[54]
SEC. 18. Authority of Courts. -- Nothing in this Act shall prevent or preclude the
proper courts from declaring null and void any proposition approved pursuant to this
Act for violation of the Constitution or want of capacity of the local legislative body
to enact the said measure.
Curiously, too, while R.A. No. 6735 exerted utmost diligence and care in providing
for the details in the implementation of initiative and referendum on national and local
legislation thereby giving them special attention, it failed, rather intentionally, to do so on
the system of initiative on amendments to the Constitution. Anent the initiative on
national legislation, the Act provides for the following:
(a) The required percentage of registered voters to sign the petition and the contents of
the petition;
(b) The conduct and date of the initiative;
(c) The submission to the electorate of the proposition and the required number of
votes for its approval;
(d) The certification by the COMELEC of the approval of the proposition;
(e) The publication of the approved proposition in the Official Gazette or in a
newspaper of general circulation in the Philippines; and
(f) The effects of the approval or rejection of the proposition.
[55]
(a) The preliminary requirement as to the number of signatures of registered voters for
the petition;
(b) The submission of the petition to the local legislative body concerned;
(c) The effect of the legislative bodys failure to favorably act thereon, and the
invocation of the power of initiative as a consequence thereof;
(d) The formulation of the proposition;
(e) The period within which to gather the signatures;
(f) The persons before whom the petition shall be signed;
(g) The issuance of a certification by the COMELEC through its official in the local
government unit concerned as to whether the required number of signatures have been
obtained;
(h) The setting of a date by the COMELEC for the submission of the proposition to
the registered voters for their approval, which must be within the period specified
therein;
(i) The issuance of a certification of the result;
(j) The date of effectivity of the approved proposition;
(k) The limitations on local initiative; and
(l) The limitations upon local legislative bodies.
[56]
Upon the other hand, as to initiative on amendments to the Constitution, R.A. No.
6735, in all of its twenty-three sections, merely (a) mentions, the word Constitution in
Section 2; (b) defines initiative on the Constitution and includes it in the enumeration of
the three systems of initiative in Section 3; (c) speaks of plebiscite as the process by
which the proposition in an initiative on the Constitution may be approved or rejected by
the people; (d) reiterates the constitutional requirements as to the number of voters who
should sign the petition; and (e) provides for the date of effectivity of the approved
proposition.
There was, therefore, an obvious downgrading of the more important or the
paramount system of initiative. R.A. No. 6735 thus delivered a humiliating blow to the
system of initiative on amendments to the Constitution by merely paying it a reluctant lip
service.
[57]
The foregoing brings us to the conclusion that R.A. No. 6735 is incomplete,
inadequate, or wanting in essential terms and conditions insofar as initiative on
amendments to the Constitution is concerned. Its lacunae on this substantive matter are
fatal and cannot be cured by empowering the COMELEC to promulgate such rules and
regulations as may be necessary to carry out the purposes of [the] Act.
[58]
The rule is that what has been delegated, cannot be delegated or as expressed in a
Latin maxim: potestas delegata non delegari potest. The recognized exceptions to the
rule are as follows:
[59]
(1) Delegation of tariff powers to the President under Section 28(2) of Article VI of
the Constitution;
(2) Delegation of emergency powers to the President under Section 23(2) of Article VI
of the Constitution;
(3) Delegation to the people at large;
(4) Delegation to local governments; and
(5) Delegation to administrative bodies.
[60]
[62]
It logically follows that the COMELEC cannot validly promulgate rules and
regulations to implement the exercise of the right of the people to directly propose
amendments to the Constitution through the system of initiative. It does not have that
power under R.A. No. 6735. Reliance on the COMELECs power under Section 2(1) of
Article IX-C of the Constitution is misplaced, for the laws and regulations referred to
therein are those promulgated by the COMELEC under (a) Section 3 of Article IX-C of
the Constitution, or (b) a law where subordinate legislation is authorized and which
satisfies the completeness and the sufficient standard tests.
IV
COMELEC ACTED WITHOUT JURISDICTION OR WITH GRAVE ABUSE OF
DISCRETION IN ENTERTAINING THE DELFIN PETITION.
Even if it be conceded ex gratia that R.A. No. 6735 is a full compliance with the
power of Congress to implement the right to initiate constitutional amendments, or that it
has validly vested upon the COMELEC the power of subordinate legislation and that
COMELEC Resolution No. 2300 is valid, the COMELEC acted without jurisdiction or
with grave abuse of discretion in entertaining the Delfin Petition.
Under Section 2 of Article XVII of the Constitution and Section 5(b) of R.A. No.
6735, a petition for initiative on the Constitution must be signed by at least 12% of the
total number of registered voters of which every legislative district is represented by at
least 3% of the registered voters therein. The Delfin Petition does not contain signatures
of the required number of voters. Delfin himself admits that he has not yet gathered
signatures and that the purpose of his petition is primarily to obtain assistance in his
drive to gather signatures. Without the required signatures, the petition cannot be
deemed validly initiated.
The COMELEC acquires jurisdiction over a petition for initiative only after its
filing. The petition then is the initiatory pleading. Nothing before its filing is cognizable by
the COMELEC, sitting en banc. The only participation of the COMELEC or its personnel
before the filing of such petition are (1) to prescribe the form of the petition; (2) to issue
through its Election Records and Statistics Office a certificate on the total number of
registered voters in each legislative district; (3) to assist, through its election registrars,
in the establishment of signature stations; and (4) to verify, through its election
registrars, the signatures on the basis of the registry list of voters, voters affidavits, and
voters identification cards used in the immediately preceding election.
[63]
[64]
[65]
[66]
Since the Delfin Petition is not the initiatory petition under R.A. No. 6735 and
COMELEC Resolution No. 2300, it cannot be entertained or given cognizance of by the
COMELEC. The latter knew that the petition does not fall under any of the actions or
proceedings under the COMELEC Rules of Procedure or under Resolution No. 2300,
for which reason it did not assign to the petition a docket number. Hence, the said
petition was merely entered as UND, meaning, undocketed. That petition was nothing
more than a mere scrap of paper, which should not have been dignified by the Order of
6 December 1996, the hearing on 12 December 1996, and the order directing Delfin
and the oppositors to file their memoranda or oppositions. In so dignifying it, the
COMELEC acted without jurisdiction or with grave abuse of discretion and merely
wasted its time, energy, and resources.
The foregoing considered, further discussion on the issue of whether the proposal
to lift the term limits of the elective national and local officials is an amendment to, and
not a revisionof, the Constitution is rendered unnecessary, if not academic.
CONCLUSION
This petition must then be granted, and the COMELEC should be permanently
enjoined from entertaining or taking cognizance of any petition for initiative on
amendments on the Constitution until a sufficient law shall have been validly enacted to
provide for the implementation of the system.
We feel, however, that the system of initiative to propose amendments to the
Constitution should no longer be kept in the cold; it should be given flesh and blood,
energy and strength.Congress should not tarry any longer in complying with the
constitutional mandate to provide for the implementation of the right of the people under
that system.
WHEREFORE, judgment is hreby rendered
a) GRANTING the instant petition;
b) DECLARING R.A. No. 6735 inadequate to cover the system of initiative on
amendments to the Constitution, and to have failed to provide sufficient standard for
subordinate legislation;
c) DECLARING void those parts of Resolutions No. 2300 of the Commission on
Elections prescribing rules and regulations on the conduct of initiative or amendments to
the Constitution; and
d) ORDERING the Commission on Elections to forthwith DISMISS the DELFIN
petition (UND-96-037).
The Temporary Restraining Order issued on 18 December 1996 is made permanent
as against the Commission on Elections, but is LIFTED against private respondents.
Resolution on the matter of contempt is hereby reserved.
SO ORDERED.
Narvasa, C.J., Regalado, Romero, Bellosillo,Kapunan, Hermosisima, Jr. and Torres
Jr., JJ., concur.
Padilla, J., took no part; related to a co-petitioner and co-counsel of the petitioners.
Melo and Mendoza, JJ., joins the separate, concurring opinions of Justices Puno,
Francisco and Panganiban.
Puno, Vitug, , Francisco and Panganiban, JJ., has separate opinions.
[1]
[2]
[3]
[4]
Section 1, Article XV of the 1935 Constitution and Section 1(1), Article XVI of the 1973 Constitution.
[5]
[6]
Later identified as the Peoples Initiative for Reforms, Modernization and Action, or PIRMA for brevity.
[7]
SEC. 4. The term of office of the Senators shall be six years and shall commence, unless otherwise
provided by law, at noon on the thirtieth day of June next following their election.
No Senator shall serve for more than two consecutive terms. Voluntary renunciation of the office for any
length of time shall not be considered as an interruption in the continuity of his service for the full
term for which he was elected.
xxx
SEC. 7. The Members of the House of Representatives shall be elected for a term of three years which
shall begin, unless otherwise provided by law, at noon on the thirtieth day of June next following
their election.
No Member of the House of Representatives shall serve for more than three consecutive terms. Voluntary
renunciation of the office for any length of time shall not be considered as an interruption in the
continuity of his service for the full term for which he was elected.
[8]
SEC. 4. The President and the Vice-President shall be elected by direct vote of the people for a term of
six years which shall begin at noon on the thirtieth day of June next following the day of the
election and shall end at noon of the same date six years thereafter. The President shall not be
eligible for any reelection. No person who has succeeded as President and has served as such
for more than four years shall be qualified for election to the same office at any time.
No Vice-President shall serve for more than two successive terms. Voluntary renunciation of the office for
any length of time shall not be considered as an interruption in the continuity of the service for the
full term for which he was elected.
[9]
SEC. 8. The term of office of elective local officials, except barangay officials, which shall be determined
by law, shall be three years and no such official shall serve for more than three consecutive
terms. Voluntary renunciation of the office for any length of time shall not be considered as an
interruption in the continuity of his service for the full term for which he was elected.
[10]
Rollo, 19.
[11]
[12]
[13]
Id.
[14]
Citing Araneta v. Dinglasan, 84 Phil. 368 [1949]; Sanidad v. COMELEC, 73 SCRA 333 [1976].
[15]
Rollo, 68.
[16]
Rollo, 100.
[17]
Rollo, 130.
[18]
[19]
[20]
[21]
Rollo, 239.
[22]
Rollo, 304.
[23]
Rollo, 568.
[24]
Rollo, 594.
[26]
[27]
Rollo, 28.
[28]
[29]
[30]
[31]
Id., 371.
[32]
Id., 386.
[33]
[34]
Id., 386.
[35]
Id., 392.
[36]
Id., 398-399.
[37]
[38]
Id., 402-403.
[39]
Id., 401-402.
[40]
Id., 410.
[41]
Id., 412.
[42]
[43]
The Congress originally appeared as The National Assembly. The change came about as a logical
consequence of the amended Committee Report No. 22 of the Committee on Legislative which
changed The National Assembly to "The Congress of the Philippines" in view of the approval of
the amendment to adopt the bicameral system (II Record of the Constitutional Commission 102105). The proposed new Article on the Legislative Department was, after various amendments
approved on Second and Third Readings on 9 October 1986 (Id., 702-703).
[44]
[45]
[46]
[47]
Entitled "Initiative and Referendum Act of 1987, introduced by then Congressmen Raul Roco, Raul del
Mar and Narciso Monfort.
[48]
Entitled An Act Implementing the Constitutional Provisions on Initiative and Referendum and for Other
Purposes, introduced by Congressmen Salvador Escudero.
[49]
Entitled An Act Providing for a System of Initiative and Referendum, and the Exceptions Therefrom,
Whereby People in Local Government Units Can Directly Propose and Enact Resolutions and
Ordinances or Approve or Reject Any Ordinance or Resolution Passed By the Local Legislative
Body, introduced by Senators Gonzales, Romulo, Pimentel, Jr., and Lina, Jr.
[50]
[51]
[52]
Section 1. Statement of Policy. The power of the people under a system of initiative and referendum to
directly propose and enact resolutions and ordinances or approve or reject, in whole or in part,
any ordinance or resolution passed by any local legislative body upon compliance with the
requirements of this Act is hereby affirmed, recognized and guaranteed.
[53]
It must be pointed out that Senate Bill No. 17 and House Bill No. 21505, as approved on Third Reading,
did not contain any subtitles.
If some confusion attended the preparation of the subtitles resulting in the leaving out of the more
important and paramount system of initiative on amendments to the Constitution, it was because there
was in the Bicameral Conference Committee an initial agreement for the Senate panel to draft that portion
on local initiative and for the House of Representatives panel to draft that portion covering national
initiative and initiative on the Constitution; eventually, however, the Members thereof agreed to leave the
drafting of the consolidated bill to their staff. Thus:
[54]
CHAIRMAN GONZALES.
... All right, and we can agree, we can agree. So ang mangyayari dito, ang magiging basic nito, let us not
discuss anymore kung alin ang magiging basic bill, ano, whether it is the Senate Bill or whether it
is the House Bill.Logically it should be ours sapagkat una iyong sa amin, eh. It is one of the first
bills approved by the Senate kaya ang number niyan, makikita mo, 17, eh. Huwag na nating pagusapan. Now, if you insist, really iyong features ng national at saka constitutional, okay. Pero
gagawin na nating consolidation of both bills. (TSN, proceedings of the Bicameral Conference
Committee on 6 June 1989 submitted by Nora, R, pp. I-4 - I-5).
xxx
HON. ROCO. So how do we proceed from this? The staff will consolidate.
HON. GONZALES. Gumawa lang ng isang draft. Submit it to the Chairman, kami na ang bahalang
magconsult sa aming mga members na kung okay,
HON. ROCO. Within today?
HON. GONZALES. Within today and early tomorrow. Hanggang Huwebes lang tayo, eh.
HON. AQUINO. Kinakailangang palusutin natin ito. Kung mabigyan tayo ng kopya bukas and you are not
objecting naman kayo naman ganoon din.
HON. ROCO. Editing na lang because on a physical consolidation nga ito, eh. Yung mga provisions
naman namin wala sa inyo. (TSN, proceedings of Bicameral Conference Committee of 6 June
1989, submitted by E.S. Bongon, pp. III-4 - III-5).
[55]
[56]
It would thus appear that the Senates cautious approach in the implementation of the system of
initiative as a mode of proposing amendments to the Constitution, as expressed by Senator Gonzales in
the course of his sponsorship of Senate Bill No. 17 in the Bicameral Conference Committee meeting and
in his sponsorship of the Committees Report, might have insidiously haunted the preparation of the
consolidated version of Senate Bill No. 17 and House Bill No. 21505. In the first he said:
[57]
Senate Bill No. 17 recognizes the initiatives and referendum are recent innovations in our political
system. And recognizing that, it has adopted a cautious approach by: first, allowing them only
when the local legislative body had refused to act; second, not more frequently than once a year;
and, third, limiting them to the national level. (I Record of the Senate, No. 33, p. 871).
xxx
First, as I have said Mr. President, and I am saying for the nth time, that we are introducing a novel and
new system in politics. We have to adopt first a cautious approach. We feel it is prudent and wise
at this point in time, to limit those powers that may be the subject of initiatives and referendum to
those exercisable or within the authority of the local government units. (Id., p. 880).
In the second he stated:
But at any rate, as I have said, because this is new in our political system, the Senate decided on a more
cautious approach and limiting it only to the local general units. (TSN of the proceedings of the
Bicameral Conference Committee on 6 June 1989, submitted by stenographer Nora R., pp. I-2 to
I-3).
In the last he declared:
The initiatives and referendum are new tools of democracy; therefore, we have decided to be cautious in
our approach. Hence, 1) we limited initiative and referendum to the local government units; 2) that
initiative can only be exercised if the local legislative cannot be exercised more frequently that
once every year. (IV Records of the Senate, No. 143, pp. 15-9-1510).
[58]
[59]
People v. Rosenthal, 68 Phil. 328 [1939]; ISAGANI A. CRUZ, Philippine Political Law 86
[1996] (hereafter CRUZ).
[60]
[61]
[62]
[63]
[64]
[65]
[66]
Case 2
EN BANC
RAUL L. LAMBINO and ERICO B. G.R. No. 174153
AUMENTADO, TOGETHER WITH
6,327,952 REGISTERED VOTERS,
Petitioners,
- versus THE COMMISSION ON ELECTIONS,
Respondent.
x--------------------------------------------------------x
ALTERNATIVE LAW GROUPS, INC.,
Intervenor.
x ------------------------------------------------------ x
ONEVOICE INC., CHRISTIAN S.
MONSOD, RENE B. AZURIN,
MANUEL L. QUEZON III, BENJAMIN
T. TOLOSA, JR., SUSAN V. OPLE, and
CARLOS P. MEDINA, JR.,
Intervenors.
x------------------------------------------------------ x
ATTY. PETE QUIRINO QUADRA,
Intervenor.
x--------------------------------------------------------x
BAYAN represented by its Chairperson
Dr. Carolina Pagaduan-Araullo, BAYAN MUNA
represented by its Chairperson Dr. Reynaldo
Lesaca, KILUSANG MAYO UNO represented
by its Secretary General Joel Maglunsod, HEAD
represented by its Secretary General Dr. Gene
Alzona Nisperos, ECUMENICAL BISHOPS
FORUM represented by Fr. Dionito Cabillas,
x ------------------------------------------------------- x
RONALD L. ADAMAT, ROLANDO
MANUEL RIVERA, and RUELO BAYA,
Intervenors.
x -------------------------------------------------------- x
PHILIPPINE TRANSPORT AND GENERAL
WORKERS ORGANIZATION (PTGWO)
and MR. VICTORINO F. BALAIS,
Intervenors.
x -------------------------------------------------------- x
SENATE OF THE PHILIPPINES, represented
by its President, MANUEL VILLAR, JR.,
Intervenor.
x ------------------------------------------------------- x
SULONG BAYAN MOVEMENT
FOUNDATION, INC.,
Intervenor.
x ------------------------------------------------------- x
JOSE ANSELMO I. CADIZ, BYRON D.
BOCAR, MA. TANYA KARINA A. LAT,
ANTONIO L. SALVADOR, and
RANDALL TABAYOYONG,
Intervenors.
x -------------------------------------------------------- x
INTEGRATED BAR OF THE PHILIPPINES,
CEBU CITY AND CEBU PROVINCE
CHAPTERS,
Intervenors.
x --------------------------------------------------------x
SENATE MINORITY LEADER AQUILINO
Q. PIMENTEL, JR. and SENATORS
SERGIO R. OSMEA III, JAMBY
MADRIGAL, JINGGOY ESTRADA,
ALFREDO S. LIM and
PANFILO LACSON,
Intervenors.
x -----------------------------------------------------x
DECISION
CARPIO, J.:
The Case
These are consolidated petitions on the Resolution dated 31 August 2006 of the
Commission on Elections (COMELEC) denying due course to an
initiative petition to amend the 1987 Constitution.
Antecedent Facts
On 15 February 2006, petitioners in G.R. No. 174153, namely Raul L. Lambino
and Erico B. Aumentado (Lambino Group), with other groups[1] and individuals,
commencedgathering signatures for an initiative petition to change the 1987
Constitution. On 25 August 2006, the Lambino Group filed a petition with the
COMELEC to hold a plebiscitethat will ratify their initiative petition under Section
5(b) and (c)[2] and Section 7[3] of Republic Act No. 6735 or the
Initiative and Referendum Act (RA 6735).
The
Lambino
Group
alleged
that
their
petition had
the support of 6,327,952 individuals constituting at least twelve per centum (12%)
of all registered voters, with each legislative district represented by at least
three per centum (3%) of its registered voters. The Lambino Group also claimed
that COMELEC election registrars had verified the signatures of the 6.3 million
individuals.
The Lambino Groups initiative petition changes the 1987 Constitution by
modifying Sections 1-7 of Article VI (Legislative Department)[4] and Sections 14 of Article VII (Executive Department)[5] and by adding Article XVIII entitled
Transitory Provisions.[6] These proposed changes will shift the present BicameralPresidential system to aUnicameral-Parliamentary form of government. The
Lambino Group prayed that after due publication of their petition, the
COMELEC should submit the following proposition in a plebiscite for the voters
ratification:
DO YOU APPROVE THE AMENDMENT OF ARTICLES VI AND VII OF
THE 1987 CONSTITUTION, CHANGING THE FORM OF GOVERNMENT
FROM
THE
PRESENT
BICAMERAL-PRESIDENTIAL
TO
A
UNICAMERAL-PARLIAMENTARY SYSTEM, AND PROVIDING ARTICLE
XVIII AS TRANSITORY PROVISIONS FOR THE ORDERLY SHIFT FROM
ONE SYSTEM TO THE OTHER?
On 30 August 2006, the Lambino Group filed an Amended Petition with the
COMELEC indicating modifications in the proposed Article XVIII (Transitory
Provisions) of theirinitiative.[7]
Various
groups
and
individuals sought intervention, filing
pleadings supporting or opposing the Lambino Groups petition. The supporting
intervenors[10] uniformly hold the view that the COMELEC committed grave abuse
of discretion in relying on Santiago. On the other hand, the opposing
intervenors[11] hold the contrary view and maintain that Santiago is a binding
precedent. The opposing intervenors also challenged (1) the Lambino Groups
standing to file the petition; (2) the validity of the signature gathering and
verification process; (3) the Lambino Groups compliance with the minimum
requirement for the percentage of voters supporting an initiative petition under
Section 2, Article XVII of the 1987 Constitution;[12] (4) the nature of the proposed
changes as revisions and not mere amendments as provided under Section 2,
Article XVII of the 1987 Constitution; and (5) the Lambino Groups
compliance with
the
requirement
in
Section
10(a)
of
RA
6735 limiting initiative petitions to only one subject.
The Court heard the parties and intervenors in oral arguments on 26 September
2006. After receiving the parties memoranda, the Court considered the case
submitted for resolution.
The Issues
MR. RODRIGO: Let us look at the mechanics. Let us say some voters want to
propose a constitutional amendment. Is the draft of the proposed constitutional
amendment ready to be shown to the people when they are asked to sign?
MR. SUAREZ: That can be reasonably assumed, Madam President.
MR. RODRIGO: What does the sponsor mean? The draft is ready and shown to
them before they sign. Now, who prepares the draft?
MR. SUAREZ: The people themselves, Madam President.
MR. RODRIGO: No, because before they sign there is already a draft shown
to them and they are asked whether or not they want to propose this
constitutional amendment.
MR. SUAREZ: As it is envisioned, any Filipino can prepare that proposal and
pass it around for signature.[13] (Emphasis supplied)
Clearly, the framers of the Constitution intended that the draft of the
proposed constitutional amendment should be ready and shown to the
people before they sign such proposal. The framers plainly stated that before they
sign there is already a draft shown to them. The framers also envisioned that the
people should sign on the proposal itself because the proponents must prepare
that proposal and pass it around for signature.
The essence of amendments directly proposed by the people through
initiative upon a petition is that the entire proposal on its face is a petition by
the people. This means two essential elements must be present. First, the people
must author and thus sign the entire proposal. No agent or representative can sign
on their behalf. Second, as an initiative upon a petition, the proposal must be
embodied in a petition.
These essential elements are present only if the full text of the proposed
amendments is first shown to the people who express their assent by signing such
complete proposal in a petition. Thus, an amendment is directly proposed by the
people through initiative upon a petition only if the people sign on a petition
that contains the full text of the proposed amendments.
The full text of the proposed amendments may be either written on the face
of the petition, or attached to it. If so attached, the petition must state the fact of
such attachment. This is an assurance that every one of the several millions of
signatories to the petition had seen the full text of the proposed amendments before
signing. Otherwise, it is physically impossible, given the time constraint, to prove
that every one of the millions of signatories had seen the full text of the proposed
amendments before signing.
The framers of the Constitution directly borrowed[14] the concept of peoples
initiative from the United States where various State constitutions incorporate an
initiative clause. In almost all States[15] which allow initiative petitions,
the unbending requirement is that the people must first see the full text of the
proposed amendments before they sign to signify their assent, and that the
people must sign on an initiative petition that contains the full text of the
proposed amendments.[16]
The rationale for this requirement has been repeatedly explained in several
decisions of various courts. Thus, in Capezzuto v. State Ballot Commission, the
Supreme Court of Massachusetts, affirmed by the First Circuit Court of Appeals,
declared:
[A] signature requirement would be meaningless if the person supplying the
signature has not first seen what it is that he or she is signing. Further, and
more importantly, loose interpretation of the subscription requirement can pose a
significant potential for fraud. A person permitted to describe orally the contents
of an initiative petition to a potential signer, without the signer having actually
examined the petition, could easily mislead the signer by, for example, omitting,
downplaying, or even flatly misrepresenting, portions of the petition that might
not be to the signer's liking. This danger seems particularly acute when, in
this case, the person giving the description is the drafter of the petition, who
obviously has a vested interest in seeing that it gets the requisite signatures
to qualify for the ballot.[17] (Boldfacing and underscoring supplied)
The Lambino Group did not attach to their present petition with this Court a
copy of the paper that the people signed as their initiative petition. The Lambino
Group submitted to this Court a copy of a signature sheet[20] after the oral
arguments of 26 September 2006 when they filed their Memorandum on 11
October 2006. The signature sheet with this Court during the oral arguments was
the signature sheet attached[21] to the opposition in intervention filed on 7
September 2006 by intervenor Atty. Pete Quirino-Quadra.
The signature sheet attached to Atty. Quadras opposition and the signature
sheet attached to the Lambino Groups Memorandum are the same. We reproduce
below the signature sheet in full:
Province:
City/Municipality:
Legislative District:
Barangay:
No. of
Verified
Signatures:
Precinct
Number
1
2
3
4
5
6
7
8
Name
Last Name, First Name, M.I.
Address
Birthdate
MM/DD/YY
Signature
9
10
_________________ _________________ __________________
Barangay Official Witness Witness
(Print Name and Sign) (Print Name and Sign) (Print Name and Sign)
The Lambino Group failed to attach a copy of ULAP Resolution No. 200602 to the present petition. However, the Official Website of the Union of Local
Authorities of the Philippines[22] has posted the full text of Resolution No. 2006-02,
which provides:
2006 amended petition with the COMELEC. However, ULAP Resolution No.
2006-02 does not establish that ULAP or the Lambino Group caused the
circulation of the draft petition, together with the signature sheets, six months
before the filing with the COMELEC. On the contrary, ULAP Resolution No.
2006-02 casts grave doubt on the Lambino Groups claim that they circulated the
draft petition together with the signature sheets. ULAP Resolution No. 2006-02
does not refer at all to the draft petition or to the Lambino Groups proposed
changes.
In their Manifestation explaining their amended petition before the
COMELEC, the Lambino Group declared:
After the Petition was filed, Petitioners belatedly realized that the
proposed amendments alleged in the Petition, more specifically, paragraph 3 of
Section 4 and paragraph 2 of Section 5 of the Transitory Provisions were
inaccurately stated and failed to correctly reflect their proposed amendments.
The Lambino Group did not allege that they were amending the petition because
the amended petition was what they had shown to the people during the February
to August 2006 signature-gathering. Instead, the Lambino Group alleged that the
petition of 25 August 2006 inaccurately stated and failed to correctly reflect their
proposed amendments.
The Lambino Group never alleged in the 25 August 2006 petition or the 30 August
2006 amended petition with the COMELEC that they circulated printed copies of
the draft petition together with the signature sheets. Likewise, the Lambino Group
did not allege in their present petition before this Court that they circulated printed
copies of the draft petition together with the signature sheets. The signature sheets
do not also contain any indication that the draft petition is attached to, or circulated
with, the signature sheets.
It is only in their Consolidated Reply to the Opposition-in-Interventions that
the Lambino Group first claimed that they circulated the petition for initiative filed
with the COMELEC, thus:
[T]here is persuasive authority to the effect that (w)here there is not (sic) fraud,
a signer who did not read the measure attached to a referendum petition
cannot question his signature on the ground that he did not understand the
nature of the act. [82 C.J.S. S128h. Mo. State v. Sullivan, 224, S.W. 327, 283
Mo. 546.] Thus, the registered voters who signed the signature sheets
circulated together with the petition for initiative filed with the COMELEC
below, are presumed to have understood the proposition contained in the
petition. (Emphasis supplied)
The Lambino Groups statement that they circulated to the people the
petition for initiative filed with the COMELEC appears an afterthought, made
after the intervenors Integrated Bar of the Philippines (Cebu City Chapter and
Cebu Province Chapters) and Atty. Quadra had pointed out that the signature sheets
did not contain the text of the proposed changes. In their Consolidated Reply, the
Lambino Group alleged that they circulated the petition for initiative but failed to
mention the amended petition. This contradicts what Atty. Lambino finally stated
during the oral arguments that what they circulated was the draft of the amended
petition of 30 August 2006.
The Lambino Group cites as authority Corpus Juris Secundum, stating that a
signer who did not read the measure attached to a referendum petition cannot
question his signature on the ground that he did not understand the nature of the
act. The Lambino Group quotes an authority that cites a proposed
change attached to the petition signed by the people. Even the authority the
Lambino Group quotes requires that the proposed change must be attached to the
petition. The same authority the Lambino Group quotes requires the people to sign
on the petition itself.
Indeed, it is basic in American jurisprudence that the proposed amendment
must be incorporated with, or attached to, the initiative petition signed by the
people. In the present initiative, the Lambino Groups proposed changes were not
incorporated with, or attached to, the signature sheets. The Lambino Groups
citation of Corpus Juris Secundumpulls the rug from under their feet.
It is extremely doubtful that the Lambino Group prepared,
printed, circulated, from February to August 2006 during the signature-gathering
period, the draft of the petition or amended petition they filed later with the
COMELEC. The Lambino Group are less than candid with this Court in their
belated claim that they printed and circulated, together with the signature sheets,
the petition or amended petition. Nevertheless, even assuming the Lambino
Group circulated the amended petition during the signature-gathering period,
the Lambino Group admitted circulating only very limited copies of the
petition.
During the oral arguments, Atty. Lambino expressly admitted that they
printed only 100,000 copies of the draft petition they filed more than six
months later with the COMELEC. Atty. Lambino added that he also asked other
supporters to print additional copies of the draft petition but he could not state with
certainty how many additional copies the other supporters printed. Atty. Lambino
could only assure this Court of the printing of 100,000 copies because he
himself caused the printing of these 100,000 copies.
Likewise, in the Lambino Groups Memorandum filed on 11 October
2006, the Lambino Group expressly admits that petitioner Lambino initiated
the printing and reproduction of 100,000 copies of the petition for initiative x
x x.[25] This admission binds the Lambino Group and establishes beyond any
doubt that the Lambino Group failed to show the full text of the proposed
changes to the great majority of the people who signed the signature sheets.
Thus, of the 6.3 million signatories, only 100,000 signatories could have
received with certainty one copy each of the petition, assuming a 100 percent
distribution with no wastage. If Atty. Lambino and company attached one copy of
the petition to each signature sheet, only 100,000 signature sheets could have
circulated with the petition. Each signature sheet contains space for ten
signatures. Assuming ten people signed each of these 100,000 signature sheets
with the attached petition, the maximum number of people who saw the petition
before they signed the signature sheets would not exceed 1,000,000.
With only 100,000 printed copies of the petition, it would be physically
impossible for all or a great majority of the 6.3 million signatories to have seen the
petition before they signed the signature sheets. The inescapable conclusion is
that the Lambino Group failed to show to the 6.3 million signatories the full
text of the proposed changes.If ever, not more than one million signatories saw
the petition before they signed the signature sheets.
In any event, the Lambino Groups signature sheets do not contain the full
text of the proposed changes, either on the face of the signature sheets, or as
attachment with an indication in the signature sheet of such attachment. Petitioner
Atty. Lambino admitted this during the oral arguments, and this admission
binds the Lambino Group. This fact is also obvious from a mere reading of the
signature sheet. This omission is fatal. The failure to so include the text of the
proposed changes in the signature sheets renders the initiative void for noncompliance with the constitutional requirement that the amendment must
be directly proposed by the people through initiative upon a petition. The
signature sheet is not the petition envisioned in the initiative clause of the
Constitution.
For sure, the great majority of the 6.3 million people who signed the
signature sheets did not see the full text of the proposed changes before
signing. They could not have known the nature and effect of the proposed changes,
among which are:
1.
2.
3.
These three specific amendments are not stated or even indicated in the
Lambino Groups signature sheets. The people who signed the signature sheets had
no idea that they were proposing these amendments. These three proposed changes
are highly controversial. The people could not have inferred or divined these
proposed changes merely from a reading or rereading of the contents of the
signature sheets.
During the oral arguments, petitioner Atty. Lambino stated that he and his
group assured the people during the signature-gathering that the elections for
the regular Parliament would be held during the 2007 local elections if the
proposed changes were ratified before the 2007 local elections. However, the text
of the proposed changesbelies this.
The proposed Section 5(2), Article XVIII on Transitory Provisions, as found
in the amended petition, states:
Section 5(2). The interim Parliament shall provide for the election of the
members of Parliament, which shall be synchronized and held simultaneously
with the election of all local government officials. x x x x (Emphasis supplied)
Section 5(2) does not state that the elections for the regular Parliament will be held
simultaneously with the 2007 local elections. This section merely requires that the
elections for the regular Parliament shall be held simultaneously with the local
elections without specifying the year.
Petitioner Atty. Lambino, who claims to be the principal drafter of the
proposed changes, could have easily written the word next before the phrase
election of all local government officials. This would have insured that the
elections for the regular Parliament would be held in the next local elections
following the ratification of the proposed changes. However, the absence of the
word next allows the interim Parliament to schedule the elections for the regular
Parliament simultaneously with any future local elections.
Thus, the members of the interim Parliament will decide the expiration of
their own term of office. This allows incumbent members of the House of
Representatives to hold office beyond their current three-year term of office, and
possibly even beyond the five-year term of office of regular members of the
Parliament. Certainly, this is contrary to the representations of Atty. Lambino
and his group to the 6.3 million people who signed the signature sheets. Atty.
Lambino and his group deceived the 6.3 million signatories, and even the
entire nation.
This lucidly shows the absolute need for the people to sign an initiative
petition that contains the full text of the proposed amendments to avoid fraud or
misrepresentation.In the present initiative, the 6.3 million signatories had to rely on
the verbal representations of Atty. Lambino and his group because the signature
sheets did not contain the full text of the proposed changes. The result is a grand
deception on the 6.3 million signatories who were led to believe that the proposed
changes would require the holding in 2007 of elections for the regular Parliament
simultaneously with the local elections.
The Lambino Groups initiative springs another surprise on the people who
signed the signature sheets. The proposed changes mandate the interim Parliament
to make further amendments or revisions to the Constitution. The proposed Section
4(4), Article XVIII on Transitory Provisions, provides:
Section 4(4). Within forty-five days from ratification of these
amendments, the interim Parliament shall convene to propose amendments to,
or revisions of, this Constitutionconsistent with the principles of local
autonomy, decentralization and a strong bureaucracy. (Emphasis supplied)
During the oral arguments, Atty. Lambino stated that this provision is a surplusage
and the Court and the people should simply ignore it. Far from being a surplusage,
this provision invalidates the Lambino Groups initiative.
Section 4(4) is a subject matter totally unrelated to the shift from the BicameralPresidential to the Unicameral-Parliamentary system. American jurisprudence on
initiatives outlaws this as logrolling - when the initiative petition incorporates an
unrelated subject matter in the same petition. This puts the people in a dilemma
since they can answer only either yes or no to the entire proposition, forcing them
to sign a petition that effectively contains two propositions, one of which they may
find unacceptable.
Logrolling confuses and even deceives the people. In Yute Air Alaska v.
McAlpine,[30] the Supreme Court of Alaska warned against inadvertence, stealth
and fraud in logrolling:
Whenever a bill becomes law through the initiative process, all of the
problems that the single-subject rule was enacted to prevent are
exacerbated. There is a greater danger oflogrolling, or the deliberate intermingling
of issues to increase the likelihood of an initiatives passage, and there is a
greater opportunity for inadvertence, stealth and fraud in the enactment-byinitiative process. The drafters of an initiative operate independently of any
structured or supervised process. They often emphasize particular provisions of
their proposition, while remaining silent on other (more complex or less
appealing) provisions, when communicating to the public. x x
x Indeed, initiative promoters typically use simplistic advertising to present
their initiative to potential petition-signers and eventual voters. Many voters
will never read the full text of the initiative before the election. More importantly,
there is no process for amending or splitting the several provisions in
an initiative proposal. These difficulties clearly distinguish the initiative from the
legislative process. (Emphasis supplied)
Thus, the present initiative appears merely a preliminary step for further
amendments or revisions to be undertaken by the interim Parliament as a
constituent assembly. The people who signed the signature sheets could not have
known that their signatures would be used to propose an
amendment mandating the interim Parliament to propose furtheramendments or
revisions to the Constitution.
After 30 June 2010, not one of the present Senators will remain as member of
Parliament if the interim Parliament does not schedule elections for the regular
Parliament by 30 June 2010. However, there is no counterpart provision for the
present members of the House of Representatives even if their term of office will
all end on 30 June 2007, three years earlier than that of half of the present
Senators. Thus, all the present members of the House will remain members of the
interim Parliament after 30 June 2010.
The term of the incumbent President ends on 30 June 2010. Thereafter, the
Prime Minister exercises all the powers of the President. If the interim Parliament
does not schedule elections for the regular Parliament by 30 June 2010, the Prime
Minister will come only from the present members of the House of
Representatives to the exclusion of the present Senators.
The signature sheets do not explain this discrimination against the
Senators. The 6.3 million people who signed the signature sheets could not
have known that their signatures would be used to discriminate against the
Senators. They could not have known that their signatures would be used to
limit, after 30 June 2010, the interim Parliaments choice of Prime Minister
only to members of the existing House of Representatives.
An initiative that gathers signatures from the people without first showing to the
people the full text of the proposed amendments is most likely a deception, and can
operate as agigantic fraud on the people. That is why the Constitution requires
that an initiative must be directly proposed by the people x x x in a
petition - meaning that the people must sign on a petition that contains the full text
of the proposed amendments. On so vital an issue as amending the nations
fundamental law, the writing of the text of the proposed amendments cannot
be hidden from the people under a general or special power of attorney to
unnamed, faceless, and unelected individuals.
The Constitution entrusts to the people the power to directly propose amendments
to the Constitution. This Court trusts the wisdom of the people even if the members
of this Court do not personally know the people who sign the petition. However,
this trust emanates from a fundamental assumption: the full text of the
proposed amendment is first shown to the people before they sign the petition,
not after they have signed the petition.
In short, the Lambino Groups initiative is void and unconstitutional because it
dismally fails to comply with the requirement of Section 2, Article XVII of the
Constitution that the initiative must be directly proposed by the people through
initiative upon a petition.
complete committee report. With the permission of the Members, may I quote
Section 2:
The people may, after five years from the date of the last plebiscite
held, directly propose amendments to this Constitution thru
initiative upon petition of at least ten percent of the registered
voters.
This completes the blanks appearing in the original Committee Report No.
7. This proposal was suggested on the theory that this matter of initiative, which
came about because of the extraordinary developments this year, has to be
separated from the traditional modes of amending the Constitution as embodied in
Section 1. The committee members felt that this system of initiative should be
limited to amendments to the Constitution and should not extend to the
revision of the entire Constitution, so we removed it from the operation of
Section 1 of the proposed Article on Amendment or Revision. x x x x
xxxx
MS. AQUINO: [I] am seriously bothered by providing this process of initiative as
a separate section in the Article on Amendment. Would the sponsor be amenable
to accepting an amendment in terms of realigning Section 2 as another
subparagraph (c) of Section 1, instead of setting it up as another separate section
as if it were a self-executing provision?
MR. SUAREZ: We would be amenable except that, as we clarified a while
ago, this process of initiative is limited to the matter of amendment and
should not expand into a revision which contemplates a total overhaul of the
Constitution. That was the sense that was conveyed by the Committee.
MS. AQUINO: In other words, the Committee was attempting to distinguish
the coverage of modes (a) and (b) in Section 1 to include the process of
revision; whereas, the process of initiation to amend, which is given to the
public, would only apply to amendments?
MR. SUAREZ: That is right. Those were the terms envisioned in the
Committee.
MS. AQUINO: I thank the sponsor; and thank you, Madam President.
xxxx
MR. MAAMBONG: My first question: Commissioner Davide's proposed
amendment on line 1 refers to "amendments." Does it not cover the word
"revision" as defined by Commissioner Padilla when he made the distinction
between the words "amendments" and "revision"?
MR. DAVIDE: No, it does not, because "amendments" and "revision" should
be covered by Section 1. So insofar as initiative is concerned, it can only
relate to "amendments" not "revision."
MR. MAAMBONG: Thank you.[31] (Emphasis supplied)
There can be no mistake about it. The framers of the Constitution intended, and
wrote, a clear distinction between amendment and revision of the Constitution.
The framersintended, and wrote, that only Congress or a constitutional
convention may propose revisions to the Constitution. The framers intended, and
wrote, that a peoples initiative may propose only amendments to the
Constitution. Where the intent and language of the Constitution clearly withhold
from the people the power to propose revisions to the Constitution, the people
cannot propose revisions even as they are empowered to propose amendments.
This has been the consistent ruling of state supreme courts in the United
States. Thus, in McFadden v. Jordan,[32] the Supreme Court of California ruled:
The initiative power reserved by the people by amendment to the
Constitution x x x applies only to the proposing and the adopting or rejecting
of laws and amendments to the Constitution and does not purport to extend
to a constitutional revision. x x x x It is thus clear that a revision of the
Constitution may be accomplished only through ratification by the people of a
revised constitution proposed by a convention called for that purpose as outlined
hereinabove. Consequently if the scope of the proposed initiative measure
(hereinafter termed the measure) now before us is so broad that if such measure
became law a substantial revision of our present state Constitution would be
effected, then the measure may not properly be submitted to the electorate until
and unless it is first agreed upon by a constitutional convention, and the writ
sought by petitioner should issue. x x x x (Emphasis supplied)
based in large part on the revision of the constitution drafted by the Commission
for Constitutional Revision authorized by the 1961 Legislative Assembly, x x x
and submitted to the 1963 Legislative Assembly. It failed to receive in the
Assembly the two-third's majority vote of both houses required by Article XVII,
Section 2, and hence failed of adoption, x x x.
While differing from that document in material respects, the measure
sponsored by the plaintiffs is, nevertheless, a thorough overhauling of the present
constitution x x x.
To call it an amendment is a misnomer.
Whether it be a revision or a new constitution, it is not such a measure as
can be submitted to the people through the initiative. If a revision, it is subject to
the requirements of Article XVII, Section 2(1); if a new constitution, it can only
be proposed at a convention called in the manner provided in Article XVII,
Section 1. x x x x
This Court, whose members are sworn to defend and protect the Constitution,
cannot shirk from its solemn oath and duty to insure compliance with the clear
command of the Constitution that a peoples initiative may only amend, never
revise, the Constitution.
The question is, does the Lambino Groups initiative constitute an
amendment or revision of the Constitution? If the Lambino Groups initiative
constitutes a revision, then the present petition should be dismissed for being
outside the scope of Section 2, Article XVII of the Constitution.
Courts have long recognized the distinction between an amendment and a revision
of a constitution. One of the earliest cases that recognized the distinction described
the fundamental difference in this manner:
[T]he very term constitution implies an instrument of a permanent and abiding
nature, and the provisions contained therein for its revision indicate the will of
the people that the underlying principles upon which it rests, as well as the
substantial entirety of the instrument, shall be of a like permanent and abiding
nature. On the other hand, the significance of the term amendment implies such
an addition or change within the lines of the original instrument as will effect an
improvement, or better carry out the purpose for which it was framed. [35]
(Emphasis supplied)
The abolition alone of the Office of the President as the locus of Executive
Power alters the separation of powers and thus constitutes a revision of the
Constitution.Likewise, the abolition alone of one chamber of Congress alters the
system of checks-and-balances within the legislature and constitutes a revision of
the Constitution.
By any legal test and under any jurisdiction, a shift from a BicameralPresidential to a Unicameral-Parliamentary system, involving the abolition of the
Office of the President and the abolition of one chamber of Congress, is beyond
doubt a revision, not a mere amendment. On the face alone of the Lambino Groups
proposed changes, it is readily apparent that the changes will radically alter the
framework of government as set forth in the Constitution. Father Joaquin
Bernas, S.J., a leading member of the Constitutional Commission, writes:
An amendment envisages an alteration of one or a few specific
and separable provisions. The guiding original intention of an amendment is to
improve specific parts or to add new provisions deemed necessary to meet new
conditions or to suppress specific portions that may have become obsolete or that
are judged to be dangerous. In revision, however, the guiding original intention and
plan contemplates a re-examination of the entire document, or of provisions of the
document which have over-all implications for the entire document, to determine
how and towhat extent they should be altered. Thus, for instance a switch from
the presidential system to a parliamentary system would be a revision
because of its over-all impact on the entire constitutional structure. So would
a switch from a bicameral system to a unicameral system be because of its
effect on other important provisions of the Constitution.[41] (Emphasis supplied)
The rationale of the Adams decision applies with greater force to the present
petition. The Lambino Groups initiative not only seeks a shift from a bicameral to
a unicameral legislature, it also seeks to merge the executive and legislative
departments. The initiative in Adams did not even touch the executive department.
In Adams, the Supreme Court of Florida enumerated 18 sections of the
Florida Constitution that would be affected by the shift from a bicameral to a
unicameral legislature.In the Lambino Groups present initiative, no less than 105
provisions of the Constitution would be affected based on the count of Associate
Justice Romeo J. Callejo, Sr.[44]There is no doubt that the Lambino Groups present
initiative seeks far more radical changes in the structure of government than the
initiative in Adams.
The Lambino Group theorizes that the difference between amendment and revision
is only one of procedure, not of substance. The Lambino Group posits that when
a deliberative body drafts and proposes changes to the Constitution, substantive
changes are called revisions because members of the deliberative body work
full-time on the changes. However, the same substantive changes, when proposed
through an initiative, are called amendments because the changes are made
by ordinary people who do not make an occupation, profession, or vocation
out of such endeavor.
Thus, the Lambino Group makes the following exposition of their theory in
their Memorandum:
99. With this distinction in mind, we note that the constitutional provisions
expressly provide for both amendment and revision when it speaks of legislators
and constitutional delegates, while the same provisions expressly provide only for
amendment when it speaks of the people. It would seem that the apparent
distinction is based on the actual experience of the people, that on one hand the
common people in general are not expected to work full-time on the matter of
correcting the constitution because that is not their occupation, profession or
vocation; while on the other hand, the legislators and constitutional convention
delegates are expected to work full-time on the same matter because that is their
occupation, profession or vocation. Thus, the difference between the words
revision and amendment pertain only to the process or procedure of coming
up with the corrections, for purposes of interpreting the constitutional
provisions.
100. Stated otherwise, the difference between amendment and revision
cannot reasonably be in the substance or extent of the correction. x x x
x (Underlining in the original; boldfacing supplied)
Similarly, this Court must reject the Lambino Groups theory which negates the
express intent of the framers and the plain language of the Constitution.
We can visualize amendments and revisions as a spectrum, at one end green
for amendments and at the other end red for revisions. Towards the middle of the
spectrum, colors fuse and difficulties arise in determining whether there is an
amendment or revision. The present initiative is indisputably located at the far end
of the red spectrum where revision begins. The present initiative seeks a radical
overhaul of the existing separation of powers among the three co-equal
departments of government, requiring far-reaching amendments in several sections
and articles of the Constitution.
Where the proposed change applies only to a specific provision of the Constitution
without affecting any other section or article, the change may generally be
considered an amendment and not a revision. For example, a change reducing the
voting age from 18 years to 15 years [47] is an amendment and not a
revision. Similarly, a change reducing Filipino ownership of mass media
companies from 100 percent to 60 percent is an amendment and not a revision.
[48]
Also, a change requiring a college degree as an additional qualification for
election to the Presidency is an amendment and not a revision.[49]
The changes in these examples do not entail any modification of sections or
articles of the Constitution other than the specific provision being amended. These
changes do not also affect the structure of government or the system of checksand-balances among or within the three branches. These three examples are located
at the far green end of the spectrum, opposite the far red end where the revision
sought by the present petition is located.
However, there can be no fixed rule on whether a change is an amendment or a
revision. A change in a single word of one sentence of the Constitution may be a
revision and not an amendment. For example, the substitution of the word
republican with monarchic or theocratic in Section 1, Article II[50] of the
Constitution radically overhauls the entire structure of government and the
fundamental ideological basis of the Constitution. Thus, each specific change will
have to be examined case-by-case, depending on how it affects other provisions, as
well as how it affects the structure of government, the carefully crafted system of
checks-and-balances, and the underlying ideological basis of the existing
Constitution.
Since a revision of a constitution affects basic principles, or several
provisions of a constitution, a deliberative body with recorded proceedings is
best suited to undertake a revision. A revision requires harmonizing not only
several provisions, but also the altered principles with those that remain
unaltered. Thus, constitutions normally authorize deliberative bodies like
constituent assemblies or constitutional conventions to undertake revisions. On the
other hand, constitutions allow peoples initiatives, which do not have fixed and
identifiable deliberative bodies or recorded proceedings, to undertake only
amendments and not revisions.
In the present initiative, the Lambino Groups proposed Section 2 of the
Transitory Provisions states:
Section 2. Upon the expiration of the term of the incumbent President and
Vice President, with the exception of Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI
of the 1987 Constitution which shall hereby be amended and Sections 18 and 24
which shall be deleted, all other Sections of Article VI are hereby retained and
renumbered sequentially as Section 2, ad seriatim up to 26, unless they are
inconsistent with the Parliamentary system of government, in which case,
they shall be amended to conform with a unicameral parliamentary form of
government; x x x x (Emphasis supplied)
Realizing the absurdity of the need for such an amendment, petitioner Atty.
Lambino readily conceded during the oral arguments that the requirement of a
future amendment is a surplusage. In short, Atty. Lambino wants to reinstate the
rule of statutory construction so that the later provision automatically prevails in
case of irreconcilable inconsistency.However, it is not as simple as that.
The irreconcilable inconsistency envisioned in the proposed Section 2 of the
Transitory Provisions is not between a provision in Article VI of the 1987
Constitution and a provision in the proposed changes. The inconsistency is
between a provision in Article VI of the 1987 Constitution and the Parliamentary
system of government, and the inconsistency shall be resolved in favor of
a unicameral parliamentary form of government.
Now, what unicameral parliamentary form of government do the Lambino
Groups proposed changes refer to the Bangladeshi, Singaporean, Israeli, or New
Zealandmodels,
which
are
among
the few countries
with unicameral parliaments? The proposed changes could not possibly refer to
the traditional and well-known parliamentary forms of government the British,
French, Spanish, German, Italian, Canadian, Australian, or Malaysian models,
which have all bicameral parliaments. Did the people who signed the signature
sheets realize that they were adopting the Bangladeshi, Singaporean, Israeli,
or New Zealand parliamentary form of government?
This drives home the point that the peoples initiative is not meant for
revisions of the Constitution but only for amendments. A shift from the present
Bicameral-Presidential to a Unicameral-Parliamentary system requires
harmonizing several provisions in many articles of the Constitution. Revision of
the Constitution through a peoples initiative will only result in gross absurdities in
the Constitution.
In sum, there is no doubt whatsoever that the Lambino Groups initiative is a
revision and not an amendment. Thus, the present initiative is void and
The 6.3 million signatories did not sign the petition of 25 August 2006 or the
amended petition of 30 August 2006 filed with the COMELEC. Only Atty.
Lambino, Atty. Demosthenes B. Donato, and Atty. Alberto C. Agra signed the
petition and amended petition as counsels for Raul L. Lambino and Erico B.
Aumentado, Petitioners. In the COMELEC, the Lambino Group, claiming to
act together with the 6.3 million signatories, merely attached the signature sheets
to the petition and amended petition. Thus, the petition and amended petition filed
with the COMELEC did not even comply with the basic requirement of RA 6735
that the Lambino Group claims as valid.
The Lambino Groups logrolling initiative also violates Section 10(a) of RA 6735
stating, No petition embracing more than one (1) subject shall be submitted to
the electorate; x x x. The proposed Section 4(4) of the Transitory Provisions,
mandating the interim Parliament to propose further amendments or revisions to
the Constitution, is a subject matter totally unrelated to the shift in the form of
government. Since the present initiative embraces more than one subject matter,
RA 6735 prohibits submission of the initiative petition to the electorate. Thus, even
if RA 6735 is valid, the Lambino Groups initiative will still fail.
5. Conclusion
The Constitution, as the fundamental law of the land, deserves the utmost
respect and obedience of all the citizens of this nation. No one can trivialize the
Constitution by cavalierly amending or revising it in blatant violation of the clearly
specified modes of amendment and revision laid down in the Constitution itself.
To allow such change in the fundamental law is to set adrift the Constitution
in unchartered waters, to be tossed and turned by every dominant political group of
the day. If this Court allows today a cavalier change in the Constitution outside the
constitutionally prescribed modes, tomorrow the new dominant political group that
comes will demand its own set of changes in the same cavalier and
unconstitutional fashion. A revolving-door constitution does not augur well for the
rule of law in this country.
An overwhelming majority 16,622,111 voters comprising 76.3 percent of
the total votes cast[53] approved our Constitution in a national plebiscite held
on 11 February 1987. That approval is the unmistakable voice of the people, the
full expression of the peoples sovereign will. That approval included the
prescribed modes for amending or revising the Constitution.
Incantations of peoples voice, peoples sovereign will, or let the people decide
cannot override the specific modes of changing the Constitution as prescribed in
the Constitution itself. Otherwise, the Constitution the peoples fundamental
covenant that provides enduring stability to our society becomes easily
susceptible to manipulative changes by political groups gathering signatures
through false promises. Then, the Constitution ceases to be the bedrock of the
nations stability.
The Lambino Group claims that their initiative is the peoples
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 peoples 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 peoples voice or sovereign will in the present
initiative.
This Court cannot betray its primordial duty to defend and protect the
Constitution. The Constitution, which embodies the peoples sovereign will, is the
bible of this Court.This Court exists to defend and protect the Constitution. To
allow this constitutionally infirm initiative, propelled by deceptively gathered
signatures, to alter basic principles in the Constitution is to allow a desecration of
the Constitution. To allow such alteration and desecration is to lose this
Courts raison d'etre.
WHEREFORE, we DISMISS the petition in G.R. No. 174153.
SO ORDERED.
ANTONIO T. CARPIO
Associate Justice
WE CONCUR:
ARTEMIO V. PANGANIBAN
Chief Justice
REYNATO S. PUNO
Associate Justice
LEONARDO A. QUISUMBING
Associate Justice
CONSUELO YNARESSANTIAGO
Associate Justice
ANGELINA SANDOVALGUTIERREZ
Associate Justice
RENATO C. CORONA
Associate Justice
ADOLFO S. AZCUNA
Associate Justice
DANTE O. TINGA
Associate Justice
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, I certify that the
conclusions in the above Decision were reached in consultation before the case
was assigned to the writer of the opinion of the Court.
ARTEMIO V. PANGANIBAN
Chief Justice
[1]
[2]
Including Sigaw ng Bayan and Union of Local Authorities of the Philippines (ULAP).
This provision states: Requirements. x x x x
(b) A petition for an initiative on the 1987 Constitution must have at least twelve per
centum (12%) of the total number of registered voters as signatories, of which every legislative
district must be represented by at least three per centum (3%) of the registered voters therein.
Initiative on the Constitution may be exercised only after five (5) years from the ratification of the
1987 Constitution and only once every five (5) years thereafter.
(c) The petition shall state the following:
c.1. contents or text of the proposed law sought to be enacted, approved or rejected,
amended or repealed, as the case may be;
c.2. the proposition;
of Parliament and any and all references to the President and or Acting President shall be changed
to read Prime Minister.
Section 4. (1) There shall exist, upon the ratification of these amendments, an interim
Parliament which shall continue until the Members of the regular Parliament shall have been
elected and shall have qualified. It shall be composed of the incumbent Members of the Senate and
the House of Representatives and the incumbent Members of the Cabinet who are heads of
executive departments.
(2) The incumbent Vice President shall automatically be a Member of Parliament
until noon of the thirtieth day of June 2010. He shall also be a member of the cabinet and shall
head a ministry. He shall initially convene the interim Parliament and shall preside over its
sessions for the election of the interim Prime Minister and until the Speaker shall have been
elected by a majority vote of all the members of the interim Parliament from among themselves.
(3) Within forty-five days from ratification of these amendments, the interim Parliament
shall convene to propose amendments to, or revisions of, this Constitution consistent with the
principles of local autonomy, decentralization and a strong bureaucracy.
Section 5. (1) The incumbent President, who is the Chief Executive, shall nominate, from
among the members of the interim Parliament, an interim Prime Minister, who shall be elected by
a majority vote of the members thereof. The interim Prime Minister shall oversee the various
ministries and shall perform such powers and responsibilities as may be delegated to him by the
incumbent President.
(2) The interim Parliament shall provide for the election of the members of Parliament,
which shall be synchronized and held simultaneously with the election of all local government
officials. Thereafter, the Vice President, as Member of Parliament, shall immediately convene the
Parliament and shall initially preside over its session for the purpose of electing the Prime
Minister, who shall be elected by a majority vote of all
its members, from among themselves. The duly elected Prime Minister shall continue to exercise
and perform the powers, duties and responsibilities of the interim Prime Minister until the
expiration of the term of incumbent President and Vice President.
[7]
As revised, Article XVIII contained a new paragraph in Section 4 (paragraph 3) and a modified paragraph 2,
Section 5, thus:
Section 4. x x x x
(3) Senators whose term of office ends in 2010 shall be Members of Parliament until noon of the
thirtieth day of June 2010.
xxxx
Section 5. x x x x
(2) The interim Parliament shall provide for the election of the members of Parliament, which
shall be synchronized and held simultaneously with the election of all local government
officials. The duly elected Prime Minister shall continue to exercise and perform the powers,
duties and responsibilities of the interim Prime Minister until the expiration of the term of the
incumbent President and Vice President.
[8]
336 Phil. 848 (1997); Resolution dated 10 June 1997.
[9]
The COMELEC held:
We agree with the Petitioners that this Commission has the solemn Constitutional duty to enforce
and administer all laws and regulations relative to the conduct of, as in this case, initiative.
This mandate, however, should be read in relation to the other provisions of the Constitution
particularly on initiative.
Section 2, Article XVII of the 1987 Constitution provides:
Sec. 2. Amendments to this Constitution may likewise be directly proposed by
the people through initiative, upon a petition of at least twelve per centum of
the total number of registered voters, of which every legislative district must be
represented by at least three per centum of the registered voters therein. x x x.
The Congress shall provide for the implementation of the exercise of this right.
The afore-quoted provision of the Constitution being a non self-executory provision needed an
enabling law for its implementation. Thus, in order to breathe life into the constitutional right of
the people under a system of initiative to directly propose, enact, approve or reject, in whole or in
part, the Constitution, laws, ordinances, or resolution, Congress enacted Republic Act No. 6735.
However, the Supreme Court, in the landmark case of Santiago vs. Commission on
Elections struck down the said law for being incomplete, inadequate, or wanting in essential
terms and conditions insofar as initiative on amendments to the Constitution is concerned.
The Supreme Court likewise declared that this Commission should be permanently enjoined from
entertaining or taking cognizance of any petition for initiative on amendments to the Constitution
until a sufficient law shall have been validly enacted to provide for the implementation of the
system.
Thus, even if the signatures in the instant Petition appear to meet the required minimum per
centum of the total number of registered voters, of which every legislative district is represented
by at least three per centum of the registered voters therein, still the Petition cannot be given due
course since the Supreme Court categorically declared R.A. No. 6735 as inadequate to cover the
system of initiative on amendments to the Constitution.
This Commission is not unmindful of the transcendental importance of the right of the people
under a system of initiative. However, neither can we turn a blind eye to the pronouncement of
the High Court that in the absence of a valid enabling law, this right of the people remains
nothing but an empty right, and that this Commission is permanently enjoined from entertaining
or taking cognizance of any petition for initiative on amendments to the Constitution.
Arturo M. De Castro; Ronald L. Adamat, Rolando Manuel Rivera, Ruelo Baya; Philippine Transport and General
Workers Organization (PTGWO); Trade Union Congress of the Philippines; Sulong Bayan Movement
Foundation, Inc.
[11]
Onevoice Inc., Christian S. Monsod, Rene B. Azurin, Manuel L. Quezon III, Benjamin T. Tolosa, Jr., Susan V.
Ople and Carlos P. Medina, Jr.; Alternative Law Groups, Inc.; Atty. Pete Quirino Quadra; Bayan, Bayan
Muna, Kilusang Mayo Uno,Head, Ecumenical Bishops Forum, Migrante, Gabriela, Gabriela Women's
Party, Anakbayan, League of Filipino Students, Jojo Pineda, Dr. Darby Santiago, Dr. Reginald
Pamugas; Loretta Ann P. Rosales, and Mario Joyo Aguja, Ana Theresa Hontiveros-Baraquel,
Luwalhati Ricasa Antonino; Philippine Constitution Association (PHILCONSA), Conrado F. Estrella,
Tomas C. Toledo, Mariano M. Tajon, Froilan M. Bacungan, Joaquin T. Venus, Jr., Fortunato P. Aguas, and
Amado Gat Inciong; Senate of the Philippines; Jose Anselmo I. Cadiz, Byron D. Bocar, Ma. Tanya Karina
A. Lat, Antonio L. Salvador and Randall C. Tabayoyong, Integrated Bar of
the Philippines, Cebu City and Cebu ProvinceChapters; Senate Minority Leader Aquilino Q. Pimentel, Jr.,
and Senators Sergio R. Osmea III, Jamby Madrigal, Jinggoy Estrada, Alfredo S. Lim and Panfilo Lacson;
Joseph Ejercito Estrada and Pwersa ng Masang Pilipino.
[12]
This provision states: Amendments to this Constitution may likewise be directly proposed by the people through
initiative upon a petition of at least twelve per centum of the total number of registered voters, of which
every legislative district must be represented by at least three per centum of the registered voters therein.
No amendment under this section shall be authorized within five years following the ratification of this
Constitution nor oftener than once every five years.
[13]
I RECORD, 387-388.
[14]
During the deliberations of the Constitutional Commission, Commissioner Rene V. Sarmiento made the
following report (I RECORD 389):
MR. SARMIENTO: Madam President, I am happy that the Committee on Amendments and
Transitory Provisions decided to retain the system of initiative as a mode of amending the
Constitution. I made a survey of American constitutions and I discovered that 13 States provide
for a system of initiative as a mode of amending the Constitution Arizona, Arkansas, California,
Colorado, Massachusetts, Michigan, Missouri, Nebraska, Nevada, North Dakota, Ohio, Oklahoma
and Oregon. The initiative for ordinary laws only is used in Idaho, Maine, Montana and South
Dakota. So, I am happy that this was accepted or retained by the Committee.
xxxx
The Americans in turn copied the concept of initiatives from the Swiss beginning in 1898 when South
Dakota adopted the initiative in its constitution. The Swiss cantons experimented with initiatives in the
1830s. In 1891, the Swiss incorporated the initiative as a mode of amending their national constitution.
Initiatives promote direct democracy by allowing the people to directly propose amendments to the
constitution. In contrast, the traditional mode of changing the constitution is known as indirect democracy
because the amendments are referred to the voters by the legislature or the constitutional convention.
[15]
Florida requires only that the title and summary of the proposed amendment are printed in clear and unambiguous
language. Advisory Opinion to the Attorney General RE Right of Citizens to Choose Health Care
Providers, No. 90160, 22January 1998, Supreme Court of Florida.
[16]
State ex. rel Patton v. Myers, 127 Ohio St. 95, 186 N.E. 872 (1933); Whitman v. Moore, 59 Ariz. 211, 125 P.2d
445 (1942); Heidtman v. City of Shaker Heights, 99 Ohio App. 415, 119 N.E. 2d 644 (1954); Christen v.
Baker, 138 Colo. 27, 328 P.2d 951 (1958); Stop the Pay Hike Committee v. Town Council of Town of
Irvington, 166 N.J. Super. 197, 399 A.2d 336 (1979); State ex rel Evans v. Blackwell, Slip copy, 2006 WL
1102804 (Ohio App. 10 Dist.), 2006-Ohio-2076.
[17]
407 Mass. 949, 955 (1990). Affirmed by the District Court of Massachusetts in Henry v. Conolly, 743 F. Supp.
922 (1990) and by the Court of Appeals, First Circuit, in Henry v. Conolly, 9109 F. 2d. 1000 (1990), and
cited in Marino v. Town Council of Southbridge, 13 Mass.L.Rptr. 14 (2001).
[18]
89 P.3d 1227, 1235 (2004).
[19]
Stumpf v. Law, 839 P. 2d 120, 124 (1992).
[20]
[24]
The full text of the proposals of the Consultative Commission on Charter Change can be downloaded at its
official website at www.concom.ph.
[25]
The Lambino Groups Memorandum, p. 5.
[26]
Under the proposed Section 1(2), Article VI of the Constitution, members of Parliament shall be elected for a
term of five years without limitation as to the number thereof.
[27]
Under the proposed Section 4(1), Article XVIII, Transitory Provisions of the Constitution, the interim Parliament
shall continue until the Members of the regular Parliament shall have been elected and shall have
qualified. Also, under the proposed Section 5(2), Article XVIII, of the same Transitory Provisions, the
interim Parliament shall provide for the election of the members of Parliament.
[28]
Under the proposed Section 4(3), Article XVIII, Transitory Provisions of the Constitution, the interim Parliament,
within 45 days from ratification of the proposed changes, shall convene to propose amendments to, or
revisions of, this Constitution.
[29]
448 So.2d 984, 994 (1984), internal citations omitted.
[30]
698 P.2d 1173, 1184 (1985).
[31]
[38]
[43]
Id. at 830-832.
As stated by Associate Justice Romeo J. Callejo, Sr. during the 26 September 2006 oral arguments.
[45]
Francisco, Jr. v. House of Representatives, G.R. No. 160261, 10 November 2003, 415 SCRA 44; J.M. Tuason &
Co., Inc. v. Land Tenure Administration, 142 Phil. 393 (1970); Gold Creek Mining Corporation v.
Rodriguez, 66 Phil. 259 (1938).
[46]
882 P.2d 91, 96-97 (1994). On the merits, the Court in Lowe v. Keisling found the amendment in question was not
a revision.
[47]
Section 1, Article V of the Constitution.
[48]
Section 11(1), Article XVI of the Constitution.
[49]
Section 2, Article VII of the Constitution.
[50]
This section provides: The Philippines is a democratic and republican State. Sovereignty resides in the people and
all government authority emanates from them.
[51]
Spouses Mirasol v. Court of Appeals, 403 Phil. 760 (2001); Intia Jr. v. COA, 366 Phil. 273 (1999).
[44]
[52]
[53]
Case 3
EN BANC
DECISION
CARPIO, J.:
The Case
This original action for the writs of certiorari and prohibition assails the
constitutionality of Republic Act No. 9522 (RA 9522) adjusting the countrys
archipelagic baselines and classifying the baseline regime of nearby territories.
1
The Antecedents
In 1961, Congress passed Republic Act No. 3046 (RA 3046) demarcating the
maritime baselines of the Philippines as an archipelagic State. This law followed the
framing of the Convention on the Territorial Sea and the Contiguous Zone in 1958
(UNCLOS I), codifying, among others, the sovereign right of States parties over their
territorial sea, the breadth of which, however, was left undetermined. Attempts to fill
this void during the second round of negotiations in Geneva in 1960 (UNCLOS II)
proved futile. Thus, domestically, RA 3046 remained unchanged for nearly five
decades, save for legislation passed in 1968 (Republic Act No. 5446 [RA 5446])
correcting typographical errors and reserving the drawing of baselines around Sabah
in North Borneo.
2
In March 2009, Congress amended RA 3046 by enacting RA 9522, the statute now
under scrutiny. The change was prompted by the need to make RA 3046 compliant
with the terms of the United Nations Convention on the Law of the Sea (UNCLOS
III), which the Philippines ratified on 27 February 1984. Among others, UNCLOS III
prescribes the water-land ratio, length, and contour of baselines of archipelagic States
like the Philippines and sets the deadline for the filing of application for the extended
continental shelf. Complying with these requirements, RA 9522 shortened one
baseline, optimized the location of some basepoints around the Philippine archipelago
and classified adjacent territories, namely, the Kalayaan Island Group (KIG) and the
5
Scarborough Shoal, as regimes of islands whose islands generate their own applicable
maritime zones.
10
11
12
13
The Issues
1. Preliminarily
On the threshold issues, we hold that (1) petitioners possess locus standi to bring this
suit as citizens and (2) the writs of certiorari and prohibition are proper remedies to
test the constitutionality of RA 9522. On the merits, we find no basis to declare RA
9522 unconstitutional.
16
17
In praying for the dismissal of the petition on preliminary grounds, respondents seek a
strict observance of the offices of the writs of certiorari and prohibition, noting that
the writs cannot issue absent any showing of grave abuse of discretion in the exercise
of judicial, quasi-judicial or ministerial powers on the part of respondents and
resulting prejudice on the part of petitioners.
18
Respondents submission holds true in ordinary civil proceedings. When this Court
exercises its constitutional power of judicial review, however, we have, by tradition,
viewed the writs of certiorari and prohibition as proper remedial vehicles to test the
constitutionality of statutes, and indeed, of acts of other branches of
government. Issues of constitutional import are sometimes crafted out of statutes
which, while having no bearing on the personal interests of the petitioners, carry such
relevance in the life of this nation that the Court inevitably finds itself constrained to
take cognizance of the case and pass upon the issues raised, non-compliance with the
letter of procedural rules notwithstanding. The statute sought to be reviewed here is
one such law.
19
20
22
UNCLOS III has nothing to do with the acquisition (or loss) of territory. It is a
multilateral treaty regulating, among others, sea-use rights over maritime zones (i.e.,
the territorial waters [12 nautical miles from the baselines], contiguous zone [24
nautical miles from the baselines], exclusive economic zone [200 nautical miles from
the baselines]), and continental shelves that UNCLOS III delimits. UNCLOS III was
the culmination of decades-long negotiations among United Nations members to
codify norms regulating the conduct of States in the worlds oceans and submarine
areas, recognizing coastal and archipelagic States graduated authority over a limited
span of waters and submarine lands along their coasts.
23
On the other hand, baselines laws such as RA 9522 are enacted by UNCLOS III
States parties to mark-out specific basepoints along their coasts from which baselines
are drawn, either straight or contoured, to serve as geographic starting points to
measure the breadth of the maritime zones and continental shelf. Article 48 of
UNCLOS III on archipelagic States like ours could not be any clearer:
Even under petitioners theory that the Philippine territory embraces the islands
and all the waters within the rectangular area delimited in the Treaty of Paris, the
baselines of the Philippines would still have to be drawn in accordance with RA 9522
because this is the only way to draw the baselines in conformity with UNCLOS III.
The baselines cannot be drawn from the boundaries or other portions of the
rectangular area delineated in the Treaty of Paris, but from the outermost islands and
drying reefs of the archipelago.
24
UNCLOS III and its ancillary baselines laws play no role in the acquisition,
enlargement or, as petitioners claim, diminution of territory. Under traditional
international law typology, States acquire (or conversely, lose) territory through
occupation, accretion, cession and prescription, not by executing multilateral treaties
on the regulations of sea-use rights or enacting statutes to comply with the treatys
terms to delimit maritime zones and continental shelves. Territorial claims to land
features are outside UNCLOS III, and are instead governed by the rules on general
international law.
25
26
Petitioners next submit that RA 9522s use of UNCLOS IIIs regime of islands
framework to draw the baselines, and to measure the breadth of the applicable
maritime zones of the KIG, weakens our territorial claim over that area. Petitioners
add that the KIGs (and Scarborough Shoals) exclusion from the Philippine
archipelagic baselines results in the loss of about 15,000 square nautical miles of
territorial waters, prejudicing the livelihood of subsistence fishermen. A comparison
of the configuration of the baselines drawn under RA 3046 and RA 9522 and the
extent of maritime space encompassed by each law, coupled with a reading of the text
of RA 9522 and its congressional deliberations, vis--vis the Philippines obligations
under UNCLOS III, belie this view.
27
28
The configuration of the baselines drawn under RA 3046 and RA 9522 shows that RA
9522 merely followed the basepoints mapped by RA 3046, save for at least nine
basepoints that RA 9522 skipped to optimize the location of basepoints and adjust the
length of one baseline (and thus comply with UNCLOS IIIs limitation on the
maximum length of baselines). Under RA 3046, as under RA 9522, the KIG and the
Scarborough Shoal lie outside of the baselines drawn around the Philippine
archipelago. This undeniable cartographic fact takes the wind out of petitioners
Petitioners assertion of loss of about 15,000 square nautical miles of territorial waters
under RA 9522 is similarly unfounded both in fact and law. On the contrary, RA 9522,
by optimizing the location of basepoints, increased the Philippines total maritime
space (covering its internal waters, territorial sea and exclusive economic zone) by
145,216 square nautical miles, as shown in the table below:
29
Extent of maritime
using RA 3046, as
square nautical
nautical miles)
miles)
166,858
171,435
274,136
32,106
Internal or
archipelagic
waters
Territorial
Sea
Exclusive
Economic
382,669
Zone
TOTAL
440,994
586,210
Thus, as the map below shows, the reach of the exclusive economic zone drawn under
RA 9522 even extends way beyond the waters covered by the rectangular demarcation
under the Treaty of Paris. Of course, where there are overlapping exclusive economic
zones of opposite or adjacent States, there will have to be a delineation of maritime
boundaries in accordance with UNCLOS III.
30
Further, petitioners argument that the KIG now lies outside Philippine territory
because the baselines that RA 9522 draws do not enclose the KIG is negated by RA
9522 itself. Section 2 of the law commits to text the Philippines continued claim of
sovereignty and jurisdiction over the KIG and the Scarborough Shoal:
Had Congress in RA 9522 enclosed the KIG and the Scarborough Shoal as part
of the Philippine archipelago, adverse legal effects would have ensued. The
Philippines would have committed a breach of two provisions of UNCLOS III. First,
Article 47 (3) of UNCLOS III requires that [t]he drawing of such baselines shall not
depart to any appreciable extent from the general configuration of the archipelago.
Second, Article 47 (2) of UNCLOS III requires that the length of the baselines shall
not exceed 100 nautical miles, save for three per cent (3%) of the total number of
baselines which can reach up to 125 nautical miles.
31
33
The principal sponsor of RA 9522 in the Senate, Senator Miriam DefensorSantiago, took pains to emphasize the foregoing during the Senate deliberations:
What we call the Kalayaan Island Group or what the rest of the
world call[] the Spratlys and the Scarborough Shoal are outside our
archipelagic baseline because if we put them inside our baselines we
might be accused of violating the provision of international law which
states: The drawing of such baseline shall not depart to any appreciable
extent from the general configuration of the archipelago. So sa loob ng
ating baseline, dapat magkalapit ang mga islands. Dahil malayo ang
Scarborough Shoal, hindi natin masasabing malapit sila sa atin
although we are still allowed by international law to claim them as our
own.
This is called contested islands outside our configuration. We see that
our archipelago is defined by the orange line which [we] call[]
archipelagic baseline. Ngayon, tingnan ninyo ang maliit na circle doon
sa itaas, that is Scarborough Shoal, itong malaking circle sa ibaba, that is
Kalayaan Group or the Spratlys. Malayo na sila sa ating archipelago
kaya kung ilihis pa natin ang dating archipelagic baselines para lamang
masama itong dalawang circles, hindi na sila magkalapit at baka hindi
na tatanggapin ng United Nations because of the rule that it should
follow the natural configuration of the archipelago. (Emphasis
supplied)
34
Similarly, the length of one baseline that RA 3046 drew exceeded UNCLOS
IIIs limits. The need to shorten this baseline, and in addition, to optimize the location
of basepoints using current maps, became imperative as discussed by respondents:
the maximum length allowed under Article 47(2) of the [UNCLOS III],
which states that The length of such baselines shall not exceed 100
nautical miles, except that up to 3 per cent of the total number of
baselines enclosing any archipelago may exceed that length, up to a
maximum length of 125 nautical miles.
2. The selection of basepoints is not optimal. At least 9 basepoints can be
skipped or deleted from the baselines system. This will enclose an
additional 2,195 nautical miles of water.
3. Finally, the basepoints were drawn from maps existing in 1968, and not
established by geodetic survey methods. Accordingly, some of the
points, particularly along the west coasts of Luzon down to Palawan
were later found to be located either inland or on water, not on low-water
line and drying reefs as prescribed by Article 47.
35
Hence, far from surrendering the Philippines claim over the KIG and the
Scarborough Shoal, Congress decision to classify the KIG and the Scarborough Shoal
as Regime[s] of Islands under the Republic of the Philippines consistent with Article
121 of UNCLOS III manifests the Philippine States responsible observance of
its pacta sunt servanda obligation under UNCLOS III. Under Article 121 of UNCLOS
III, any naturally formed area of land, surrounded by water, which is above water at
high tide, such as portions of the KIG, qualifies under the category of regime of
islands, whose islands generate their own applicable maritime zones.
36
37
Petitioners argument for the invalidity of RA 9522 for its failure to textualize the
Philippines claim over Sabah in North Borneo is also untenable. Section 2 of RA
5446, which RA 9522 did not repeal, keeps open the door for drawing the baselines of
Sabah:
As their final argument against the validity of RA 9522, petitioners contend that the
law unconstitutionally converts internal waters into archipelagic waters, hence
subjecting these waters to the right of innocent and sea lanes passage under UNCLOS
III, including overflight. Petitioners extrapolate that these passage rights indubitably
expose Philippine internal waters to nuclear and maritime pollution hazards, in
violation of the Constitution.
38
The fact of sovereignty, however, does not preclude the operation of municipal and
international law norms subjecting the territorial sea or archipelagic waters to
necessary, if not marginal, burdens in the interest of maintaining unimpeded,
expeditious international navigation, consistent with the international law principle of
freedom of navigation. Thus, domestically, the political branches of the Philippine
government, in the competent discharge of their constitutional powers, may pass
legislation designating routes within the archipelagic waters to regulate innocent and
sea lanes passage. Indeed, bills drawing nautical highways for sea lanes passage are
now pending in Congress.
40
41
43
44
The fact that for archipelagic States, their archipelagic waters are subject to
both the right of innocent passage and sea lanes passage does not place them in lesser
footing vis--vis continental coastal States which are subject, in their territorial sea, to
the right of innocent passage and the right of transit passage through international
straits. The imposition of these passage rights through archipelagic waters under
UNCLOS III was a concession by archipelagic States, in exchange for their right to
claim all the waters landward of their baselines, regardless of their depth or distance
from the coast, as archipelagic waters subject to their territorial sovereignty. More
importantly, the recognition of archipelagic States archipelago and the waters
enclosed by their baselines as one cohesive entity prevents the treatment of their
islands as separate islands under UNCLOS III. Separate islands generate their own
maritime zones, placing the waters between islands separated by more than 24
nautical miles beyond the States territorial sovereignty, subjecting these waters to the
rights of other States under UNCLOS III.
45
46
47
49
50
52
In fact, the demarcation of the baselines enables the Philippines to delimit its
exclusive economic zone, reserving solely to the Philippines the exploitation of all
living and non-living resources within such zone. Such a maritime delineation binds
the international community since the delineation is in strict observance of UNCLOS
III. If the maritime delineation is contrary to UNCLOS III, the international
community will of course reject it and will refuse to be bound by it.
UNCLOS III favors States with a long coastline like the Philippines. UNCLOS
III creates a sui generis maritime space the exclusive economic zone in waters
previously part of the high seas. UNCLOS III grants new rights to coastal States to
exclusively exploit the resources found within this zone up to 200 nautical
miles. UNCLOS III, however, preserves the traditional freedom of navigation of
other States that attached to this zone beyond the territorial sea before UNCLOS III.
53
Petitioners hold the view that, based on the permissive text of UNCLOS III,
Congress was not bound to pass RA 9522. We have looked at the relevant provision
of UNCLOS III and we find petitioners reading plausible. Nevertheless, the
prerogative of choosing this option belongs to Congress, not to this Court. Moreover,
the luxury of choosing this option comes at a very steep price. Absent an UNCLOS III
compliant baselines law, an archipelagic State like the Philippines will find itself
54
55
devoid of internationally acceptable baselines from where the breadth of its maritime
zones and continental shelf is measured. This is recipe for a two-fronted disaster: first,
it sends an open invitation to the seafaring powers to freely enter and exploit the
resources in the waters and submarine areas around our archipelago; and second, it
weakens the countrys case in any international dispute over Philippine maritime
space. These are consequences Congress wisely avoided.
The enactment of UNCLOS III compliant baselines law for the Philippine
archipelago and adjacent areas, as embodied in RA 9522, allows an internationallyrecognized delimitation of the breadth of the Philippines maritime zones and
continental shelf. RA 9522 is therefore a most vital step on the part of the Philippines
in safeguarding its maritime zones, consistent with the Constitution and our national
interest.
SO ORDERED.
ANTONIO T. CARPIO
Associate Justice
WE CONCUR:
RENATO C. CORONA
Chief Justice
ARTURO D. BRION
DIOSDADO M. PERALTA
Associate Justice
Associate Justice
Associate Justice
Associate Justice
(on leave)
JOSE PORTUGAL PEREZ
Associate Justice
JOSE C. MENDOZA
Associate Justice
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions
in the above Decision had been reached in consultation before the case was assigned
to the writer of the opinion of the Court.
RENATO C. CORONA
Chief Justice
1Entitled An Act to Amend Certain Provisions of Republic Act No. 3046, as Amended by Republic Act No. 5446, to
Define the Archipelagic Baselines of the Philippines, and for Other Purposes.
2 Entitled An Act to Define the Baselines of the Territorial Sea of the Philippines.
3 The third Whereas Clause of RA 3046 expresses the import of treating the Philippines as an archipelagic State:
WHEREAS, all the waters around, between, and connecting the various islands of the
Philippine archipelago, irrespective of their width or dimensions, have always been considered as
necessary appurtenances of the land territory, forming part of the inland waters of the Philippines.
4 One of the four conventions framed during the first United Nations Convention on the Law of the Sea in Geneva,
this treaty, excluding the Philippines, entered into force on 10 September 1964.
5 UNCLOS III entered into force on 16 November 1994.
6 The Philippines signed the treaty on 10 December 1982.
7 Article 47, paragraphs 1-3, provide:
1. An archipelagic State may draw straight archipelagic baselines joining the
outermost points of the outermost islands and drying reefs of the archipelago provided
that within such baselines are included the main islands and an area in which the ratio of
the area of the water to the area of the land, including atolls, is between 1 to 1 and 9 to 1.
2. The length of such baselines shall not exceed 100 nautical miles, except that
up to 3 per cent of the total number of baselines enclosing any archipelago may exceed
that length, up to a maximum length of 125 nautical miles.
3. The drawing of such baselines shall not depart to any appreciable extent from
the general configuration of the archipelago. (Emphasis supplied)
xxxx
8UNCLOS III entered into force on 16 November 1994. The deadline for the filing of application is mandated in
Article 4, Annex II: Where a coastal State intends to establish, in accordance with article 76, the outer
limits of its continental shelf beyond 200 nautical miles, it shall submit particulars of such limits to the
Commission along with supporting scientific and technical data as soon as possible but in any case within
10 years of the entry into force of this Convention for that State. The coastal State shall at the same time
give the names of any Commission members who have provided it with scientific and technical advice.
(Underscoring supplied)
In a subsequent meeting, the States parties agreed that for States which became bound by the treaty before 13 May
1999 (such as the Philippines) the ten-year period will be counted from that date. Thus, RA 9522, which
took effect on 27 March 2009, barely met the deadline.
9 Rollo, p. 34.
10Which provides: The national territory comprises the Philippine archipelago, with all the islands and waters
embraced therein, and all other territories over which the Philippines has sovereignty or jurisdiction,
consisting of its terrestrial, fluvial, and aerial domains, including its territorial sea, the seabed, the subsoil,
the insular shelves, and other submarine areas. The waters around, between, and connecting the islands of
the archipelago, regardless of their breadth and dimensions, form part of the internal waters of the
Philippines.
11Entered into between the Unites States and Spain on 10 December 1898 following the conclusion of the SpanishAmerican War. Under the terms of the treaty, Spain ceded to the United States the archipelago known as the
Philippine Islands lying within its technical description.
12 The Treaty of Washington, between Spain and the United States (7 November 1900), transferring to the US the
islands of Cagayan, Sulu, and Sibutu and the US-Great Britain Convention (2 January 1930) demarcating
boundary lines between the Philippines and North Borneo.
13 Article II, Section 7, Section 8, and Section 16.
14 Allegedly in violation of Article XII, Section 2, paragraph 2 and Article XIII, Section 7 of the Constitution.
15 Kilosbayan, Inc. v. Morato, 320 Phil. 171, 186 (1995).
16 Pascual v. Secretary of Public Works, 110 Phil. 331 (1960); Sanidad v. COMELEC, 165 Phil. 303 (1976).
17Francisco, Jr. v. House of Representatives, 460 Phil. 830, 899 (2003) citing Kilosbayan, Inc. v. Guingona, Jr.,
G.R. No. 113375, 5 May 1994, 232 SCRA 110, 155-156 (1995) (Feliciano, J., concurring). The two other
factors are: the character of funds or assets involved in the controversy and a clear disregard of
constitutional or statutory prohibition. Id.
18. Rollo, pp. 144-147.
19See e.g. Aquino III v. COMELEC, G.R. No. 189793, 7 April 2010, 617 SCRA 623 (dismissing a petition for
certiorari and prohibition assailing the constitutionality of Republic Act No. 9716, not for the impropriety
of remedy but for lack of merit); Aldaba v. COMELEC, G.R. No. 188078, 25 January 2010, 611 SCRA 137
(issuing the writ of prohibition to declare unconstitutional Republic Act No. 9591); Macalintal v.
COMELEC, 453 Phil. 586 (2003) (issuing the writs of certiorari and prohibition declaring unconstitutional
portions of Republic Act No. 9189).
20See e.g. Neri v. Senate Committee on Accountability of Public Officers and Investigations, G.R. No. 180643, 25
March 2008, 549 SCRA 77 (granting a writ of certiorari against the Philippine Senate and nullifying the
Senate contempt order issued against petitioner).
21 Rollo, p. 31.
22Respondents state in their Comment that petitioners theory has not been accepted or recognized by either the
United States or Spain, the parties to the Treaty of Paris. Respondents add that no State is known to have
supported this proposition.Rollo, p. 179.
23UNCLOS III belongs to that larger corpus of international law of the sea, which petitioner Magallona himself
defined as a body of treaty rules and customary norms governing the uses of the sea, the exploitation of its
resources, and the exercise of jurisdiction over maritime regimes. x x x x (Merlin M. Magallona, Primer on
the Law of the Sea 1 [1997]) (Italicization supplied).
24 Following Article 47 (1) of UNCLOS III which provides:
An archipelagic State may draw straight archipelagic baselines joining the
outermost points of the outermost islands and drying reefs of the archipelago provided
that within such baselines are included the main islands and an area in which the ratio of
the area of the water to the area of the land, including atolls, is between 1 to 1 and 9 to 1.
(Emphasis supplied)
25 Under the United Nations Charter, use of force is no longer a valid means of acquiring territory.
26 The last paragraph of the preamble of UNCLOS III states that matters not regulated by this Convention continue
to be governed by the rules and principles of general international law.
27 Rollo, p. 51.
28 Id. at 51-52, 64-66.
29 Based on figures respondents submitted in their Comment (id. at 182).
30 Under Article 74.
31 See note 7.
32 Presidential Decree No. 1596 classifies the KIG as a municipality of Palawan.
33 KIG lies around 80 nautical miles west of Palawan while Scarborough Shoal is around 123 nautical west of
Zambales.
34 Journal, Senate 14th Congress 44th Session 1416 (27 January 2009).
35 Rollo, p. 159.
36 Section 2, RA 9522.
37 Article 121 provides: Regime of islands.
1. An island is a naturally formed area of land, surrounded by water, which is above water at high tide.
2. Except as provided for in paragraph 3, the territorial sea, the contiguous zone, the exclusive economic
zone and the continental shelf of an island are determined in accordance with the provisions of this
Convention applicable to other land territory.
3. Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive
economic zone or continental shelf.
38 Rollo, pp. 56-57, 60-64.
39Paragraph 2, Section 2, Article XII of the Constitution uses the term archipelagic waters separately from territorial
sea. Under UNCLOS III, an archipelagic State may have internal waters such as those enclosed by closing
lines across bays and mouths of rivers. See Article 50, UNCLOS III. Moreover, Article 8 (2) of UNCLOS
III provides: Where the establishment of a straight baseline in accordance with the method set forth in
article 7 has the effect of enclosing as internal waters areas which had not previously been considered as
such, a right of innocent passage as provided in this Convention shall exist in those waters. (Emphasis
supplied)
40 Mandated under Articles 52 and 53 of UNCLOS III:
Article 52. Right of innocent passage.
1. Subject to article 53 and without prejudice to article 50, ships of all States enjoy the
right of innocent passage through archipelagic waters, in accordance with Part II,
section 3.
2. The archipelagic State may, without discrimination in form or in fact among foreign
ships, suspend temporarily in specified areas of its archipelagic waters the innocent
passage of foreign ships if such suspension is essential for the protection of its security.
Such suspension shall take effect only after having been duly published. (Emphasis
supplied)
Article 53. Right of archipelagic sea lanes passage.
1. An archipelagic State may designate sea lanes and air routes thereabove,
suitable for the continuous and expeditious passage of foreign ships and aircraft through
or over its archipelagic waters and the adjacent territorial sea.
2. All ships and aircraft enjoy the right of archipelagic sea lanes passage in
such sea lanes and air routes.
3. Archipelagic sea lanes passage means the exercise in accordance with this
Convention of the rights of navigation and overflight in the normal mode solely for the
purpose of continuous, expeditious and unobstructed transit between one part of the high
seas or an exclusive economic zone and another part of the high seas or an exclusive
economic zone.
4. Such sea lanes and air routes shall traverse the archipelagic waters and the
adjacent territorial sea and shall include all normal passage routes used as routes for
international navigation or overflight through or over archipelagic waters and, within
such routes, so far as ships are concerned, all normal navigational channels, provided that
duplication of routes of similar convenience between the same entry and exit points shall
not be necessary.
5. Such sea lanes and air routes shall be defined by a series of continuous axis
lines from the entry points of passage routes to the exit points. Ships and aircraft in
archipelagic sea lanes passage shall not deviate more than 25 nautical miles to either side
of such axis lines during passage, provided that such ships and aircraft shall not navigate
closer to the coasts than 10 per cent of the distance between the nearest points on islands
bordering the sea lane.
6. An archipelagic State which designates sea lanes under this article may also
prescribe traffic separation schemes for the safe passage of ships through narrow
channels in such sea lanes.
7. An archipelagic State may, when circumstances require, after giving due
publicity thereto, substitute other sea lanes or traffic separation schemes for any sea lanes
or traffic separation schemes previously designated or prescribed by it.
8. Such sea lanes and traffic separation schemes shall conform to generally
accepted international regulations.
(h) any act of willful and serious pollution contrary to this Convention;
(i) any fishing activities;
(j) the carrying out of research or survey activities;
(k) any act aimed at interfering with any systems of communication or any other
facilities or installations of the coastal State;
(l) any other activity not having a direct bearing on passage
Article 21. Laws and regulations of the coastal State relating to innocent passage.
1. The coastal State may adopt laws and regulations, in conformity with the
provisions of this Convention and other rules of international law, relating to innocent
passage through the territorial sea, in respect of all or any of the following:
(a) the safety of navigation and the regulation of maritime traffic;
(b) the protection of navigational aids and facilities and other facilities or
installations;
(c) the protection of cables and pipelines;
(d) the conservation of the living resources of the sea;
(e) the prevention of infringement of the fisheries laws and regulations of the
coastal State;
(f) the preservation of the environment of the coastal State and the prevention,
reduction and control of pollution thereof;
(g) marine scientific research and hydrographic surveys;
(h) the prevention of infringement of the customs, fiscal, immigration or sanitary
laws and regulations of the coastal State.
2. Such laws and regulations shall not apply to the design, construction, manning
or equipment of foreign ships unless they are giving effect to generally accepted
international rules or standards.
3. The coastal State shall give due publicity to all such laws and regulations.
4. Foreign ships exercising the right of innocent passage through the territorial
sea shall comply with all such laws and regulations and all generally accepted
international regulations relating to the prevention of collisions at sea.
43The right of innocent passage through the territorial sea applies only to ships and not to aircrafts (Article 17,
UNCLOS III). The right of innocent passage of aircrafts through the sovereign territory of a State arises
only under an international agreement. In contrast, the right of innocent passage through archipelagic
waters applies to both ships and aircrafts (Article 53 (12), UNCLOS III).
44Following Section 2, Article II of the Constitution: Section 2. The Philippines renounces war as an instrument of
national policy, adopts the generally accepted principles of international law as part of the law of the
land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations.
(Emphasis supplied)
45Archipelagic sea lanes passage is essentially the same as transit passage through straits to which the territorial sea
of continental coastal State is subject. R.R. Churabill and A.V. Lowe, The Law of the Sea 127 (1999).
46 Falling under Article 121 of UNCLOS III (see note 37).
47 Within the exclusive economic zone, other States enjoy the following rights under UNCLOS III:
Article 58. Rights and duties of other States in the exclusive economic zone.
1. In the exclusive economic zone, all States, whether coastal or land-locked, enjoy,
subject to the relevant provisions of this Convention, the freedoms referred to in article
87 of navigation and overflight and of the laying of submarine cables and pipelines, and
other internationally lawful uses of the sea related to these freedoms, such as those
associated with the operation of ships, aircraft and submarine cables and pipelines, and
compatible with the other provisions of this Convention.
2. Articles 88 to 115 and other pertinent rules of international law apply to the
exclusive economic zone in so far as they are not incompatible with this Part.
xxxx
Beyond the exclusive economic zone, other States enjoy the freedom of the high seas, defined under
UNCLOS III as follows:
53This can extend up to 350 nautical miles if the coastal State proves its right to claim an extended continental shelf
(see UNCLOS III, Article 76, paragraphs 4(a), 5 and 6, in relation to Article 77).
54 Rollo, pp. 67-69.
55Article 47 (1) provides: An archipelagic State may draw straight archipelagic baselines joining the outermost
points of the outermost islands and drying reefs of the archipelago provided that within such baselines are
included the main islands and an area in which the ratio of the area of the water to the area of the land,
including atolls, is between 1 to 1 and 9 to 1. (Emphasis supplied)
Case 4
EN BANC
THE PROVINCE OF NORTH COTABATO, duly G.R. No. 183591
represented by GOVERNOR JESUS SACDALAN Present:
and/or VICE-GOVERNOR EMMANUEL PIOL,
for and in his own behalf,
PUNO, C.J.,
Petitioners,
QUISUMBING,
YNARES- versus SANTIAGO,
CARPIO,
AUSTRIATHE GOVERNMENT OF THE REPUBLIC OF
MARTINEZ,
THE PHILIPPINES PEACE PANEL ON
CORONA,
ANCESTRAL DOMAIN (GRP), represented by
CARPIO
SEC. RODOLFO GARCIA, ATTY. LEAH
MORALES,
ARMAMENTO,
ATTY.
SEDFREY
AZCUNA,
CANDELARIA, MARK RYAN SULLIVAN
TINGA,
and/or GEN. HERMOGENES ESPERON, JR.,
CHICOthe latter in his capacity as the present and dulyNAZARIO,
appointed Presidential Adviser on the Peace
VELASCO, JR.,
Process (OPAPP) or the so-called Office of the
NACHURA,
Presidential Adviser on the Peace Process,
REYES,
Respondents.
LEONARDO-DE
x--------------------------------------------x
CASTRO, &
CITY GOVERNMENT OF ZAMBOANGA, as
BRION, JJ.
represented by HON. CELSO L. LOBREGAT, Promulgated:
City Mayor of Zamboanga, and in his personal
capacity as resident of the City of Zamboanga, October 14, 2008
Rep. MA. ISABELLE G. CLIMACO, District 1,
and Rep. ERICO BASILIO A. FABIAN, District
2, City ofZamboanga,
Petitioners,
- versus G.R. No. 183752
MOHAGHER IQBAL,
Respondents.
x--------------------------------------------x
FRANKLIN M. DRILON and ADEL ABBAS
TAMANO,
Petitioners-in-Intervention.
x--------------------------------------------x
SEN. MANUEL A. ROXAS,
Petitioners-in-Intervention.
x--------------------------------------------x
MUNICIPALITY
OF
LINAMON
duly
represented by its Municipal Mayor NOEL N.
DEANO,
Petitioners-in-Intervention,
x--------------------------------------------x
THE CITY OF ISABELA, BASILANPROVINCE
, represented by MAYOR CHERRYLYN P.
SANTOS-AKBAR,
Petitioners-in-Intervention.
x--------------------------------------------x
THE PROVINCE OF SULTAN KUDARAT, rep.
by HON. SUHARTO T. MANGUDADATU, in his
capacity as Provincial Governor and a resident of G.R. No. 183962
the Province of Sultan Kudarat,
Petitioner-in-Intervention.
x-------------------------------------------x
RUY ELIAS LOPEZ, for and in his own behalf
and on behalf of Indigenous Peoples in Mindanao
Not Belonging to the MILF,
Petitioner-in-Intervention.
x--------------------------------------------x
CARLO B. GOMEZ, GERARDO S. DILIG,
NESARIO G. AWAT, JOSELITO C. ALISUAG
and RICHALEX G. JAGMIS, as citizens and
residents of Palawan,
Petitioners-in-Intervention.
x--------------------------------------------x
MARINO RIDAO and KISIN BUXANI,
Petitioners-in-Intervention.
x--------------------------------------------x
MUSLIM LEGAL ASSISTANCE FOUNDATION,
INC (MUSLAF),
Respondent-in-Intervention.
x--------------------------------------------x
MUSLIM MULTI-SECTORAL MOVEMENT
FOR PEACE & DEVELOPMENT (MMMPD),
Respondent-in-Intervention.
x--------------------------------------------x
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
DECISION
CARPIO MORALES, J.:
Subject of these consolidated cases is the extent of the powers of the President in
pursuing the peace process. While the facts surrounding this controversy center on
the armed conflict in Mindanao between the government and the Moro Islamic
Liberation Front (MILF), the legal issue involved has a bearing on all areas in the
country where there has been a long-standing armed conflict. Yet again, the Court
is tasked to perform a delicate balancing act. It must uncompromisingly delineate
the bounds within which the President may lawfully exercise her discretion, but it
must do so in strict adherence to the Constitution, lest its ruling unduly restricts the
freedom of action vested by that same Constitution in the Chief Executive
precisely to enable her to pursue the peace process effectively.
I. FACTUAL ANTECEDENTS OF THE PETITIONS
On August 5, 2008, the Government of the Republic of the Philippines (GRP) and
the MILF, through the Chairpersons of their respective peace negotiating panels,
were scheduled to sign a Memorandum of Agreement on the Ancestral Domain
(MOA-AD) Aspect of the GRP-MILF Tripoli Agreement on Peace of 2001
in Kuala Lumpur,Malaysia.
The MILF is a rebel group which was established in March 1984 when, under the
leadership of the late Salamat Hashim, it splintered from the Moro National
Liberation Front (MNLF) then headed by Nur Misuari, on the ground, among
others, of what Salamat perceived to be the manipulation of the MNLF away from
an Islamic basis towards Marxist-Maoist orientations.[1]
The signing of the MOA-AD between the GRP and the MILF was not to
materialize, however, for upon motion of petitioners, specifically those who filed
their cases before the scheduled signing of the MOA-AD, this Court issued a
Temporary Restraining Order enjoining the GRP from signing the same.
The MOA-AD was preceded by a long process of negotiation and the concluding
of several prior agreements between the two parties beginning in 1996, when the
GRP-MILF peace negotiations began. On July 18, 1997, the GRP and MILF Peace
Panels signed the Agreement on General Cessation of Hostilities. The following
year, they signed the General Framework of Agreement of Intent on August 27,
1998.
The Solicitor General, who represents respondents, summarizes the MOA-AD by
stating that the same contained, among others, the commitment of the parties to
pursue peace negotiations, protect and respect human rights, negotiate with
sincerity in the resolution and pacific settlement of the conflict, and refrain from
the use of threat or force to attain undue advantage while the peace negotiations on
the substantive agenda are on-going.[2]
Early on, however, it was evident that there was not going to be any smooth sailing
in the GRP-MILF peace process. Towards the end of 1999 up to early 2000, the
MILF attacked a number of municipalities in Central Mindanao and, in March
2000, it took control of the town hall of Kauswagan, Lanao del Norte.[3] In
response, then President Joseph Estrada declared and carried out an all-out-war
against the MILF.
When President Gloria Macapagal-Arroyo assumed office, the military offensive
against the MILF was suspended and the government sought a resumption of the
peace talks.The MILF, according to a leading MILF member, initially responded
with deep reservation, but when President Arroyo asked the Government of
Malaysia through Prime Minister Mahathir Mohammad to help convince the MILF
to return to the negotiating table, the MILF convened its Central Committee to
seriously discuss the matter and, eventually, decided to meet with the GRP.[4]
The parties met in Kuala Lumpur on March 24, 2001, with the talks being
facilitated by the Malaysian government, the parties signing on the same date the
Agreement on the General Framework for the Resumption of Peace Talks Between
the GRP and the MILF. The MILF thereafter suspended all its military actions.[5]
Formal peace talks between the parties were held in Tripoli, Libya from June 2022, 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.Murads position as chief peace negotiator was taken over
by Mohagher Iqbal.[6]
In 2005, several exploratory talks were held between the parties in Kuala Lumpur,
eventually leading to the crafting of the draft MOA-AD in its final form, which, as
mentioned, was set to be signed last August 5, 2008.
II. STATEMENT OF THE PROCEEDINGS
Before the Court is what is perhaps the most contentious consensus ever embodied
in an instrument the MOA-AD which is assailed principally by the present
petitions bearing docket numbers 183591, 183752, 183893, 183951 and 183962.
Commonly impleaded as respondents are the GRP Peace Panel on Ancestral
Domain[7] and the Presidential Adviser on the Peace Process (PAPP) Hermogenes
Esperon, Jr.
On July 23, 2008, the Province of North Cotabato[8] and Vice-Governor
Emmanuel Piol filed a petition, docketed as G.R. No. 183591, for Mandamus and
Prohibition with Prayer for the Issuance of Writ of Preliminary Injunction and
Temporary Restraining Order.[9] Invoking the right to information on matters of
public concern, petitioners seek to compel respondents to disclose and furnish
them the complete and official copies of the MOA-AD including its attachments,
and to prohibit the slated signing of the MOA-AD, pending the disclosure of the
contents of the MOA-AD and the holding of a public consultation
thereon. Supplementarily, petitioners pray that the MOA-AD be declared
unconstitutional.[10]
This initial petition was followed by another one, docketed as G.R. No.
183752, also for Mandamus and Prohibition[11] filed by the City of Zamboanga,
[12]
Mayor Celso Lobregat, Rep. Ma. Isabelle Climaco and Rep. Erico Basilio
Fabian who likewise pray for similar injunctive reliefs. Petitioners herein moreover
pray that the City of Zamboangabe excluded from the Bangsamoro Homeland
and/or Bangsamoro Juridical Entity and, in the alternative, that the MOA-AD be
declared null and void.
By Resolution of August 4, 2008, the Court issued a Temporary Restraining
Order commanding and directing public respondents and their agents to cease and
desist from formally signing the MOA-AD.[13] The Court also required the Solicitor
General to submit to the Court and petitioners the official copy of the final draft of
the MOA-AD,[14] to which she complied.[15]
Meanwhile, the City of Iligan[16] filed a petition for Injunction and/or
Declaratory Relief, docketed as G.R. No. 183893, praying that respondents be
enjoined from signing the MOA-AD or, if the same had already been signed, from
implementing the same, and that the MOA-AD be declared
unconstitutional. Petitioners herein additionally implead Executive Secretary
Eduardo Ermita as respondent.
The Province of Zamboanga del Norte,[17] Governor Rolando Yebes, ViceGovernor Francis Olvis, Rep. Cecilia Jalosjos-Carreon, Rep. Cesar Jalosjos, and
the members[18] of the Sangguniang Panlalawigan of Zamboanga del Norte filed
on August 15, 2008 a petition for Certiorari, Mandamus and Prohibition,
[19]
docketed as G.R. No. 183951. They pray, inter alia, that the MOA-AD be
declared null and void and without operative effect, and that respondents be
enjoined from executing the MOA-AD.
On August 19, 2008, Ernesto Maceda, Jejomar Binay, and Aquilino Pimentel
III filed a petition for Prohibition, [20] docketed as G.R. No. 183962, praying for a
judgment prohibiting and permanently enjoining respondents from formally
signing and executing the MOA-AD and or any other agreement derived therefrom
or similar thereto, and nullifying the MOA-AD for being unconstitutional and
illegal. Petitioners herein additionally implead as respondent the MILF Peace
Negotiating Panel represented by its Chairman Mohagher Iqbal.
Various parties moved to intervene and were granted leave of court to file
their
petitions-/comments-in-intervention. Petitioners-in-Intervention
include
Senator Manuel A. Roxas, former Senate President Franklin Drilon and Atty. Adel
Tamano, the City of Isabela[21] and Mayor Cherrylyn Santos-Akbar, the Province of
Sultan Kudarat[22] and Gov. Suharto Mangudadatu, the Municipality of Linamon in
Lanao del Norte,[23] Ruy Elias Lopez of Davao City and of the Bagobo
tribe, Sangguniang Panlungsod member Marino Ridao and businessman Kisin
Buxani, both of Cotabato City; and lawyers Carlo Gomez, Gerardo Dilig, Nesario
Awat, Joselito Alisuag, Richalex Jagmis, all of Palawan City. The Muslim Legal
Assistance Foundation, Inc. (Muslaf) and the Muslim Multi-Sectoral Movement
for Peace and Development (MMMPD) filed their respective Comments-inIntervention.
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.
The MOA-AD also identifies as TOR two local statutes the organic act for the
Autonomous Region in Muslim Mindanao (ARMM)[25] and the Indigenous Peoples
Rights Act (IPRA),[26] and several international law instruments the ILO
Convention No. 169 Concerning Indigenous and Tribal Peoples in Independent
Countries in relation to the UN Declaration on the Rights of the Indigenous
Peoples, and the UN Charter, among others.
The MOA-AD includes as a final TOR the generic category of compact rights
entrenchment
emanating
from
the
regime
of dar-ul-muahada (or
territory under compact) and dar-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-muahada(land of compact) and dar-ul-sulh (land
of treaty) referred to countries which, though under a secular regime, maintained
peaceful and cooperative relations with Muslim States, having been bound to each
other by treaty or agreement. Dar-ul-aman (land of order), on the other hand,
referred to countries which, though not bound by treaty with Muslim States,
maintained freedom of religion for Muslims.[28]
It thus appears that the compact rights entrenchment emanating from the regime
of dar-ul-muahada and dar-ul-sulh simply refers to all other agreements between
the MILF and the Philippine government the Philippines being the land of compact
and peace agreement that partake of the nature of a treaty device, treaty being
broadly defined as any solemn agreement in writing that sets out understandings,
obligations, and benefits for both parties which provides for a framework that
elaborates the principles declared in the [MOA-AD].[29]
The MOA-AD states that the Parties HAVE AGREED AND ACKNOWLEDGED
AS FOLLOWS, and starts with its main body.
The main body of the MOA-AD is divided
into four strands, namely, Concepts and
Principles, Territory, Resources, and
Governance.
A. CONCEPTS AND PRINCIPLES
This strand begins with the statement that it is the birthright of all Moros and all
Indigenous peoples of Mindanao to identify themselves and be accepted as
Bangsamoros. It defines Bangsamoro people as the natives or original
inhabitants of Mindanao and its adjacent islands including Palawan and the Sulu
archipelago at the time of conquest or colonization, and their descendants whether
mixed or of full blood, including their spouses.[30]
Thus, the concept of Bangsamoro, as defined in this strand of the MOA-AD,
includes not only Moros as traditionally understood even by Muslims,[31] but
all indigenous peoplesof Mindanao and its adjacent islands. The MOA-AD adds
that the freedom of choice of indigenous peoples shall be respected. What this
freedom of choice consists in has not been specifically defined.
The MOA-AD proceeds to refer to the Bangsamoro homeland, the ownership of
which is vested exclusively in the Bangsamoro people by virtue of
their prior rights of occupation.[32] Both parties to the MOA-AD acknowledge
that ancestral domain does not form part of the public domain.[33]
The Bangsamoro people are acknowledged as having the right to self-governance,
which right is said to be rooted on ancestral territoriality exercised originally under
the suzerain authority of their sultanates and the Pat a Pangampong ku
B. TERRITORY
The territory of the Bangsamoro homeland is described as the land mass as well as
the maritime, terrestrial, fluvial and alluvial domains, including the aerial domain
and the atmospheric space above it, embracing the Mindanao-Sulu-Palawan
geographic region.[38]
More specifically, the core of the BJE is defined as the present geographic area of
the ARMM thus constituting the following areas: Lanao del Sur, Maguindanao,
Sulu, Tawi-Tawi, Basilan, and Marawi City. Significantly, this core also includes
certain municipalities of Lanao del Norte that voted for inclusion in the ARMM in
the 2001 plebiscite.[39]
Outside of this core, the BJE is to cover other provinces, cities,
municipalities and barangays, which are grouped into two categories, Category A
and Category B. Each of these areas is to be subjected to a plebiscite to be held on
different dates, years apart from each other. Thus, Category A areas are to be
subjected to a plebiscite not later than twelve (12) months following the signing of
the MOA-AD.[40] Category B areas, also called Special Intervention Areas, on the
other hand, are to be subjected to a plebiscite twenty-five (25) years from the
signing of a separate agreement the Comprehensive Compact.[41]
The Parties to the MOA-AD stipulate that the BJE shall have jurisdiction over all
natural resources within its internal waters, defined as extending fifteen (15)
kilometers from the coastline of the BJE area; [42] that the BJE shall also
have territorial waters, which shall stretch beyond the BJE internal waters up to
the baselines of the Republic of the Philippines (RP) south east and south west of
mainland Mindanao; and that within these territorial waters, the BJE and the
Central
Government (used
interchangeably
with
RP)
shall
exercise joint jurisdiction, authority and management over all natural resources.
[43]
Notably, the jurisdiction over the internal waters is not similarly described as
joint.
The
MOA-AD
further
provides
for
the sharing of minerals
on
the territorial waters between the Central Government and the BJE, in favor of the
latter, through production sharing and economic cooperation agreement. [44] The
activities which the Parties are allowed to conduct on the territorial waters are
enumerated, among which are the exploration and utilization of natural resources,
regulation of shipping and fishing activities, and the enforcement of police and
safety measures.[45] There is no similar provision on the sharing of minerals and
allowed activities with respect to the internal waters of the BJE.
C. RESOURCES
The MOA-AD states that the BJE is free to enter into any economic cooperation
and trade relations with foreign countries and shall have the option to establish
trade missions in those countries. Such relationships and understandings, however,
are not to include aggression against the GRP. The BJE may also enter into
environmental cooperation agreements.[46]
The external defense of the BJE is to remain the duty and obligation of the Central
Government. The Central Government is also bound to take necessary steps to
ensure the BJEs participation in international meetings and events like those of the
ASEAN and the specialized agencies of the UN. The BJE is to be entitled to
participate in Philippine official missions and delegations for the negotiation of
border agreements or protocols for environmental protection and equitable sharing
of incomes and revenues involving the bodies of water adjacent to or between the
islands forming part of the ancestral domain.[47]
With regard to the right of exploring for, producing, and obtaining all potential
sources of energy, petroleum, fossil fuel, mineral oil and natural gas, the
jurisdiction and control thereon is to be vested in the BJE as the party having
control within its territorial jurisdiction. This right carries the proviso that, in times
of national emergency, when public interest so requires, the Central Government
may, for a fixed period and under reasonable terms as may be agreed upon by both
Parties, assume or direct the operation of such resources.[48]
The sharing between the Central Government and the BJE of total production
pertaining to natural resources is to be 75:25 in favor of the BJE.[49]
The MOA-AD provides that legitimate grievances of the Bangsamoro people
arising from any unjust dispossession of their territorial and proprietary rights,
customary land tenures, or their marginalization shall be acknowledged. Whenever
restoration is no longer possible, reparation is to be in such form as mutually
determined by the Parties.[50]
The BJE may modify or cancel the forest concessions, timber licenses, contracts
or agreements, mining concessions, Mineral Production and Sharing Agreements
(MPSA), Industrial Forest Management Agreements (IFMA), and other land tenure
instruments granted by the Philippine Government, including those issued by the
present ARMM.[51]
D. GOVERNANCE
The MOA-AD binds the Parties to invite a multinational third-party to observe and
monitor the implementation of the Comprehensive Compact. This compact is to
embody the details for the effective enforcement and the mechanisms and
modalities for the actual implementation of the MOA-AD. The MOA-AD
explicitly provides that the participation of the third party shall not in any way
affect the status of the relationship between the Central Government and the BJE.
[52]
Constitution and the laws x x x settling the dispute becomes the duty and the
responsibility of the courts.[66]
The present petitions allege that respondents GRP Panel and PAPP Esperon
drafted the terms of the MOA-AD without consulting the local government units or
communities affected, nor informing them of the proceedings. As will be discussed
in greater detail later, such omission, by itself, constitutes a departure by
respondents from their mandate under E.O. No. 3.
Furthermore, the petitions allege that the provisions of the MOA-AD violate
the Constitution. The MOA-AD provides that any provisions of the MOA-AD
requiring amendments to the existing legal framework shall come into force upon
the signing of a Comprehensive Compact and upon effecting the necessary changes
to the legal framework, implying an amendment of the Constitution to
accommodate the MOA-AD. This stipulation, in effect, guaranteed to the MILF
the amendment of the Constitution.Such act constitutes another violation of its
authority. Again, these points will be discussed in more detail later.
As the petitions allege acts or omissions on the part of
respondent that exceed their authority, by violating their duties under E.O. No. 3
and the provisions of the Constitution and statutes, the petitions make a prima
facie case for Certiorari, Prohibition, and Mandamus, and an actual case or
controversy ripe for adjudication exists. When an act of a branch of government
is seriously alleged to have infringed the Constitution, it becomes not only the
right but in fact the duty of the judiciary to settle the dispute.[77]
B. LOCUS STANDI
For a party to have locus standi, one must allege such a personal stake in the
outcome of the controversy as to assure that concrete adverseness which sharpens
the presentation of issues upon which the court so largely depends for illumination
of difficult constitutional questions.[78]
Because constitutional cases are often public actions in which the relief sought is
likely to affect other persons, a preliminary question frequently arises as to this
interest in the constitutional question raised.[79]
When suing as a citizen, the person complaining must allege that he has been or is
about to be denied some right or privilege to which he is lawfully entitled or that
he is about to be subjected to some burdens or penalties by reason of the statute or
act complained of.[80] When the issue concerns a public right, it is sufficient that the
petitioner is a citizen and has an interest in the execution of the laws.[81]
For a taxpayer, one is allowed to sue where there is an assertion that public funds
are illegally disbursed or deflected to an illegal purpose, or that there is a wastage
of public funds through the enforcement of an invalid or unconstitutional law.
[82]
The Court retains discretion whether or not to allow a taxpayers suit.[83]
In the case of a legislator or member of Congress, an act of the Executive that
injures the institution of Congress causes a derivative but nonetheless substantial
injury that can be questioned by legislators. A member of the House of
Representatives has standing to maintain inviolate the prerogatives, powers and
privileges vested by the Constitution in his office.[84]
An organization may be granted standing to assert the rights of its members, [85] but
the mere invocation by the Integrated Bar of the Philippines or any member of the
legal profession of the duty to preserve the rule of law does not suffice to clothe it
with standing.[86]
As regards a local government unit (LGU), it can seek relief in order to protect or
vindicate an interest of its own, and of the other LGUs.[87]
Intervenors, meanwhile, may be given legal standing upon showing of facts that
satisfy the requirements of the law authorizing intervention,[88] such as a legal
interest in the matter in litigation, or in the success of either of the parties.
In any case, the Court has discretion to relax the procedural technicality on locus
standi, given the liberal attitude it has exercised, highlighted in the case of David v.
Macapagal-Arroyo,[89] where technicalities of procedure were brushed aside, the
constitutional issues raised being of paramount public interest or of transcendental
importance deserving the attention of the Court in view of their seriousness,
novelty and weight as precedents.[90] The Courts forbearing stance on locus
standi on issues involving constitutional issues has for its purpose the protection of
fundamental rights.
In not a few cases, the Court, in keeping with its duty under the Constitution to
determine whether the other branches of government have kept themselves within
the limits of the Constitution and the laws and have not abused the discretion given
them, has brushed aside technical rules of procedure.[91]
In the petitions at bar, petitioners Province of North Cotabato (G.R. No.
183591) Province of Zamboanga del Norte (G.R. No. 183951), City of
Iligan (G.R. No. 183893) andCity of Zamboanga (G.R. No. 183752) and
petitioners-in-intervention Province
of
Sultan
Kudarat,
City
of
Isabela and Municipality of Linamon have locus standi in view of the direct and
substantial injury that they, as LGUs, would suffer as their territories, whether in
whole or in part, are to be included in the intended domain of the BJE. These
petitioners allege that they did not vote for their inclusion in the ARMM which
would be expanded to form the BJE territory. Petitioners legal standing is thus
beyond doubt.
In G.R. No. 183962, petitioners Ernesto Maceda, Jejomar Binay and Aquilino
Pimentel III would have no standing as citizens and taxpayers for their failure to
specify that they would be denied some right or privilege or there would be
wastage of public funds. The fact that they are a former Senator, an incumbent
mayor of Makati City, and a resident of Cagayan de Oro, respectively, is of no
consequence. Considering their invocation of the transcendental importance of the
issues at hand, however, the Court grants them standing.
Intervenors Franklin Drilon and Adel Tamano, in alleging their standing as
taxpayers, assert that government funds would be expended for the conduct of an
illegal and unconstitutional plebiscite to delineate the BJE territory. On that score
alone, they can be given legal standing. Their allegation that the issues involved in
these petitions are of undeniable transcendental importance clothes them with
added basis for their personality to intervene in these petitions.
With regard to Senator Manuel Roxas, his standing is premised on his being a
member of the Senate and a citizen to enforce compliance by respondents of the
which dwells on theAncestral Domain Aspect of said Tripoli Agreement is the third
such component to be undertaken following the implementation of
the Security Aspect in August 2001 and theHumanitarian, Rehabilitation and
Development Aspect in May 2002.
Accordingly, even if the Executive Secretary, in his Memorandum of August 28,
2008 to the Solicitor General, has stated that no matter what the Supreme Court
ultimately decides[,] the government will not sign the MOA[-AD], mootness will
not set in in light of the terms of the Tripoli Agreement 2001.
Need to formulate principles-guidelines
Surely, the present MOA-AD can be renegotiated or another one will be
drawn up to carry out the Ancestral Domain Aspect of the Tripoli Agreement
2001, in another or in any form, which could contain similar or significantly drastic
provisions. While the Court notes the word of the Executive Secretary that the
government is committed to securing an agreement that is both constitutional and
equitable because that is the only way that long-lasting peace can be assured, it is
minded to render a decision on the merits in the present petitions to formulate
controlling principles to guide the bench, the bar, the public and, most
especially, the government in negotiating with the MILF regarding Ancestral
Domain.
Respondents invite the Courts attention to the separate opinion of then Chief
Justice Artemio Panganiban in Sanlakas v. Reyes[104] in which he stated that the
doctrine of capable of repetition yet evading review can override mootness,
provided the party raising it in a proper case has been and/or continue to be
prejudiced or damaged as a direct result of their issuance. They contend that the
Court must have jurisdiction over the subject matter for the doctrine to be invoked.
The present petitions all contain prayers for Prohibition over which this
Court exercises original jurisdiction. While G.R. No. 183893 (City of Iligan v.
GRP) is a petition for Injunction and Declaratory Relief, the Court will treat it as
one for Prohibition as it has far reaching implications and raises questions that
need to be resolved.[105] At all events, the Court has jurisdiction over most if not the
rest of the petitions.
Indeed, the present petitions afford a proper venue for the Court to again apply the
doctrine immediately referred to as what it had done in a number of landmark
cases.[106]There is a reasonable expectation that petitioners, particularly the
Provinces of North Cotabato, Zamboanga del Norte and Sultan Kudarat, the Cities
of Zamboanga, Iligan and Isabela, and the Municipality of Linamon, will again be
subjected to the same problem in the future as respondents actions are capable of
repetition, in another or any form.
It is with respect to the prayers for Mandamus that the petitions have become moot,
respondents having, by Compliance of August 7, 2008, provided this Court and
petitioners with official copies of the final draft of the MOA-AD and its
annexes. Too, intervenors have been furnished, or have procured for themselves,
copies of the MOA-AD.
V. SUBSTANTIVE ISSUES
As culled from the Petitions and Petitions-in-Intervention, there are basically two
SUBSTANTIVE issues to be resolved, one relating to the manner in which the
MOA-AD was negotiated and finalized, the other relating to its provisions, viz:
1. Did respondents violate constitutional and statutory provisions on public
consultation and the right to information when they negotiated and later initialed
the MOA-AD?
2. Do the contents of the MOA-AD violate the Constitution and the laws?
ON THE FIRST SUBSTANTIVE ISSUE
Petitioners invoke their constitutional right to information on matters of
public concern, as provided in Section 7, Article III on the Bill of Rights:
Sec. 7. The right of the people to information on matters of public concern
shall be recognized. Access to official records, and to documents, and papers
pertaining to official acts, transactions, or decisions, as well as to government
research data used as basis for policy development, shall be afforded the citizen,
subject to such limitations as may be provided by law.[107]
As early as 1948, in Subido v. Ozaeta,[108] the Court has recognized the statutory
right to examine and inspect public records, a right which was eventually accorded
constitutional status.
The right of access to public documents, as enshrined in both the 1973 Constitution
and the 1987 Constitution, has been recognized as a self-executory constitutional
right.[109]
In the 1976 case of Baldoza v. Hon. Judge Dimaano,[110] the Court ruled that access
to public records is predicated on the right of the people to acquire information on
matters of public concern since, undoubtedly, in a democracy, the pubic has a
legitimate interest in matters of social and political significance.
x x x The incorporation of this right in the Constitution is a recognition of the
fundamental role of free exchange of information in a democracy. There can be no
realistic perception by the public of the nations problems, nor a meaningful
democratic decision-making if they are denied access to information of general
interest. Information is needed to enable the members of society to cope with the
exigencies of the times. As has been aptly observed: Maintaining the flow of such
information depends on protection for both its acquisition and its dissemination
since, if either process is interrupted, the flow inevitably ceases. x x x[111]
In the same way that free discussion enables members of society to cope with the
exigencies of their time, access to information of general interest aids the people in
democratic decision-making by giving them a better perspective of the vital issues
confronting the nation[112] so that they may be able to criticize and participate in the
affairs of the government in a responsible, reasonable and effective manner. It is by
ensuring an unfettered and uninhibited exchange of ideas among a well-informed
public that a government remains responsive to the changes desired by the people.
[113]
That the subject of the information sought in the present cases is a matter of
public concern[114] faces no serious challenge. In fact, respondents admit that the
MOA-AD is indeed of public concern.[115] In previous cases, the Court found that
the regularity of real estate transactions entered in the Register of Deeds, [116] the
need for adequate notice to the public of the various laws, [117] the civil service
eligibility of a public employee,[118] the proper management of GSIS funds
allegedly used to grant loans to public officials, [119] the recovery of the Marcoses
alleged ill-gotten wealth,[120] and the identity of party-list nominees,[121] among
others, are matters of public concern.Undoubtedly, the MOA-AD subject of the
present cases is of public concern, involving as it does the sovereignty and
territorial integrity of the State, which directly affects the lives of the public at
large.
Matters of public concern covered by the right to information include steps and
negotiations leading to the consummation of the contract. In not distinguishing as
to the executory nature or commercial character of agreements, the Court has
categorically ruled:
x x x [T]he right to information contemplates inclusion of negotiations leading to
the consummation of the transaction. Certainly, a consummated contract is not a
requirement for the exercise of the right to information. Otherwise, the people can
never exercise the right if no contract is consummated, and if one is consummated,
it may be too late for the public to expose its defects.
Requiring a consummated contract will keep the public in the dark until the
contract, which may be grossly disadvantageous to the government or even illegal,
becomes fait accompli. This negates the State policy of full transparency on
matters of public concern, a situation which the framers of the Constitution could
not have intended. Such a requirement will prevent the citizenry from participating
in the public discussion of any proposed contract, effectively truncating a basic
right enshrined in the Bill of Rights. We 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)
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]
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-inhand, it is absurd to say that the broader [130] right to information on matters of
public concern is already enforceable while the correlative duty of the State to
disclose its transactions involving public interest is not enforceable until there is an
enabling law. Respondents cannot thus point to the absence of an implementing
legislation as an excuse in not effecting such policy.
An essential element of these freedoms is to keep open a continuing dialogue or
process of communication between the government and the people. It is in the
interest of the State that the channels for free political discussion be maintained to
the end that the government may perceive and be responsive to the peoples will.
[131]
Envisioned to becorollary to the twin rights to information and disclosure is the
design for feedback mechanisms.
MS. ROSARIO BRAID. Yes. And lastly, Mr. Presiding Officer, will the
people be able to participate? Will the government provide feedback
mechanisms so that the people can participate and can react where the
existing media facilities are not able to provide full feedback mechanisms to
the government? I suppose this will be part of the government implementing
operational mechanisms.
MR. OPLE. Yes. I think through their elected representatives and that is
how these courses take place. There is a message and a feedback, both ways.
xxxx
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] communitybased 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)
and seek advi[c]e from the peace advocates, peace partners and concerned sectors
of society on both national and local levels, on the implementation of the
comprehensive peace process, as well as for government[-]civil society dialogue
and consensus-building on peace agenda and initiatives.[138]
In fine, E.O. No. 3 establishes petitioners right to be consulted on the peace
agenda, as a corollary to the constitutional right to information and
disclosure.
PAPP Esperon committed grave abuse of
discretion
The PAPP committed grave abuse of discretion when he failed to carry out the
pertinent consultation. The furtive process by which the MOA-AD was designed
and craftedruns contrary to and in excess of the legal authority , and amounts to
a whimsical, capricious, oppressive, arbitrary and despotic exercise thereof.
The Court may not, of course, require the PAPP to conduct the consultation in a
particular way or manner. It may, however, require him to comply with the law
and discharge the functions within the authority granted by the President.[139]
Petitioners are not claiming a seat at the negotiating table, contrary to respondents
retort in justifying the denial of petitioners right to be consulted. Respondents
stance manifests the manner by which they treat the salient provisions of E.O. No.
3 on peoples participation. Such disregard of the express mandate of the President
is not much different from superficial conduct toward token provisos that border on
classic lip service.[140] It illustrates a gross evasion of positive duty and a virtual
refusal to perform the duty enjoined.
As for respondents invocation of the doctrine of executive privilege, it is not
tenable under the premises. The argument defies sound reason when contrasted
with E.O. No. 3s explicit provisions on continuing consultation and dialogue on
both national and local levels. The executive order even recognizes the exercise
of the publics right even before the GRP makes its official recommendations or
before the government proffers its definite propositions.[141] It bear emphasis that
In Lina, Jr. v. Hon. Pao,[144] the Court held that the above-stated policy and abovequoted 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.
necessary changes to that framework are made. The validity of this argument will
be considered later. For now, the Court shall pass uponhow
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 MOAAD, namely, the international lawconcept of association. Significantly, the MOAAD explicitly alludes to this concept, indicating that the Parties actually framed its
provisions with it in mind.
Association is referred to in paragraph 3 on TERRITORY, paragraph 11 on
RESOURCES, and paragraph 4 on GOVERNANCE. It is in the last mentioned
provision, however, that the MOA-AD most clearly uses it to describe
the envisioned relationship between the BJE and the Central Government.
4. The relationship between the Central Government and the Bangsamoro
juridical entity shall be associative characterized by shared authority and
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)
[a]n association is formed when two states of unequal power voluntarily establish
durable links. In the basic model, one state, the associate, delegates certain
responsibilities to the other, the principal, while maintaining its international
status as a state. Free associations represent a middle ground between
integration and independence. x x x[150] (Emphasis and underscoring supplied)
For purposes of illustration, the Republic of the Marshall Islands and the Federated
States of Micronesia (FSM), formerly part of the U.S.-administered Trust Territory
of the Pacific Islands,[151] are associated states of the U.S. pursuant to a Compact of
Free Association. The currency in these countries is the U.S. dollar, indicating their
very close ties with the U.S., yet they issue their own travel documents, which is a
mark of their statehood. Their international legal status as states was confirmed by
the UN Security Council and by their admission to UN membership.
According to their compacts of free association, the Marshall Islands and
the FSM generally have the capacity to conduct foreign affairs in their own name
and right, such capacity extending to matters such as the law of the sea, marine
resources, trade, banking, postal, civil aviation, and cultural relations. The U.S.
government, when conducting its foreign affairs, is obligated to consult with the
governments of the Marshall Islands or the FSM on matters which it (U.S.
government) regards as relating to or affecting either government.
In the event of attacks or threats against the Marshall Islands or the FSM, the U.S.
government has the authority and obligation to defend them as if they were part of
U.S. territory. The U.S. government, moreover, has the option of establishing and
using military areas and facilities within these associated states and has the right to
bar the military personnel of any third country from having access to these
territories for military purposes.
It bears noting that in U.S. constitutional and international practice, free
association is understood as an international association between sovereigns. The
Compact of Free Association is a treaty which is subordinate to the associated
nations national constitution, and each party may terminate the association
consistent with the right of independence.It has been said that, with the admission
of the U.S.-associated states to the UN in 1990, the UN recognized that the
does it provide for a transitory status that aims to prepare any part of Philippine
territory for independence.
Even the mere concept animating many of the MOA-ADs provisions, therefore,
already requires for its validity the amendment of constitutional provisions,
specifically the following provisions of Article X:
SECTION 1. The territorial and political subdivisions of the Republic of
the Philippines are the provinces, cities, municipalities, and barangays. There
shall be autonomous regions in Muslim Mindanao and the Cordilleras as
hereinafter provided.
SECTION 15. There shall be created autonomous regions in Muslim Mindanao
and in the Cordilleras consisting of provinces, cities, municipalities, and
geographical areas sharing common and distinctive historical and cultural
heritage, economic and social structures, and other relevant characteristics within
the framework of this Constitution and the national sovereignty as well as
territorial integrity of the Republic of the Philippines.
not surprising that many of the specific provisions of the MOA-AD on the
formation and powers of the BJE are in conflict with the Constitution and the
laws.
Article X, Section 18 of the Constitution provides that [t]he creation of the
autonomous region shall be effective when approved by a majority of the votes
cast by the constituent units in a plebiscite called for the purpose, provided
that only provinces, cities, and geographic areas voting favorably in such
plebiscite shall be included in the autonomous region. (Emphasis supplied)
As reflected above, the BJE is more of a state than an autonomous region. But even
assuming that it is covered by the term autonomous region in the constitutional
provision just quoted, the MOA-AD would still be in conflict with it. Under
paragraph 2(c) on TERRITORY in relation to 2(d) and 2(e), the present geographic
area of the ARMM and, in addition, the municipalities of Lanao del Norte which
voted for inclusion in the ARMM during the 2001 plebiscite Baloi, Munai,
Nunungan, Pantar, Tagoloan and Tangkal are automatically part of the BJE
without need of another plebiscite, in contrast to the areas under Categories A and
B mentioned earlier in the overview. That the present components of the ARMM
and the above-mentioned municipalities voted for inclusion therein in 2001,
however, does not render another plebiscite unnecessary under the Constitution,
precisely because what these areas voted for then was their inclusion in the
ARMM, not the BJE.
The MOA-AD, moreover, would not
comply with Article X, Section 20 of
the Constitution
since that provision defines the powers of autonomous regions as follows:
SECTION 20. Within its territorial jurisdiction and subject to the provisions of
this Constitution and national laws, the organic act of autonomous regions
shall provide for legislative powers over:
(1) Administrative organization;
(2) Creation of sources of revenues;
Again on the premise that the BJE may be regarded as an autonomous region, the
MOA-AD would require an amendment that would expand the above-quoted
provision. The mere passage of new legislation pursuant to sub-paragraph No. 9 of
said constitutional provision would not suffice, since any new law that might vest
in the BJE the powers found in the MOA-AD must, itself, comply with other
provisions of the Constitution. It would not do, for instance, to merely pass
legislation vesting the BJE with treaty-making power in order to accommodate
paragraph 4 of the strand on RESOURCES which states: The BJE is free to enter
into any economic cooperation and trade relations with foreign countries: provided,
however, that such relationships and understandings do not include aggression
against the Government of the Republic of the Philippines x x x. Under our
constitutional system, it is only the President who has that power. Pimentel v.
Executive Secretary[155] instructs:
In our system of government, the President, being the head of state, is regarded
as the sole organ and authority in external relations and is the country's sole
representative with foreign nations. As the chief architect of foreign policy, the
President acts as the country's mouthpiece with respect to international affairs.
Hence, the President is vested with the authority to deal with foreign states and
governments, extend or withhold recognition, maintain diplomatic relations,
enter into treaties, and otherwise transact the business of foreign relations. In
the realm of treaty-making, the President has the sole authority to negotiate
with other states. (Emphasis and underscoring supplied)
Article II, Section 22 of the Constitution must also be amended if the scheme
envisioned in the MOA-AD is to be effected. That constitutional provision states:
The State recognizes and promotes the rights of indigenous cultural
communities within
the
framework
of national
unity and
development. (Underscoring supplied) An associativearrangement does not uphold
national unity. While there may be a semblance of unity because of the associative
ties between the BJE and the national government, the act of placing a portion of
Philippine territory in a status which, in international practice, has generally been
a preparation for independence, is certainly not conducive to nationalunity.
Besides being irreconcilable with the
Constitution,
the
MOA-AD
is
also inconsistent with prevailing statutory
law, among which are R.A. No. 9054[156] or
the Organic Act of the ARMM, and
the IPRA.[157]
Article X, Section 3 of the Organic Act of the ARMM is a bar to the adoption
of the definition of Bangsamoro people used in the MOA-AD. Paragraph 1
on CONCEPTS AND PRINCIPLES states:
1. It is the birthright of all Moros and all Indigenous peoples of Mindanao to
identify themselves and be accepted as Bangsamoros. The Bangsamoro people
refers to those who are natives or original inhabitants of Mindanao and its
adjacent islands including Palawan and the Sulu archipelago at the time of
conquest or colonization of its descendants whether mixed or of full blood.
Spouses and their descendants are classified as Bangsamoro. The freedom of
choice of the Indigenous people shall be respected. (Emphasis and underscoring
supplied)
This use of the term Bangsamoro sharply contrasts with that found in the Article X,
Section 3 of the Organic Act, which, rather than lumping together the identities of
the Bangsamoro and other indigenous peoples living in Mindanao,
clearly distinguishes between Bangsamoro people and Tribal peoples, as
follows:
As used in this Organic Act, the phrase indigenous cultural community refers
to Filipino citizens residing in the autonomous region who are:
(a) Tribal peoples. These are citizens whose social, cultural and economic
conditions distinguish them from other sectors of the national community; and
(b) Bangsa Moro people. These are citizens who are believers in Islam and who
have retained some or all of their own social, economic, cultural, and political
institutions.
Respecting the IPRA, it lays down the prevailing procedure for the delineation and
recognition of ancestral domains. The MOA-ADs manner of delineating the
ancestral domain of the Bangsamoro people is a clear departure from that
procedure. By paragraph 1 of TERRITORY, the Parties simply agree that, subject
to the delimitations in the agreed Schedules, [t]he Bangsamoro homeland and
historic territory refer to the land mass as well as the maritime, terrestrial, fluvial
and alluvial domains, and the aerial domain, the atmospheric space above it,
embracing the Mindanao-Sulu-Palawan geographic region.
Chapter VIII of the IPRA, on the other hand, lays down a detailed procedure, as
illustrated in the following provisions thereof:
SECTION 52. Delineation Process. The identification and delineation of ancestral
domains shall be done in accordance with the following procedures:
xxxx
b) Petition for Delineation. The process of delineating a specific perimeter may be
initiated by the NCIP with the consent of the ICC/IP concerned, or through a
Petition for Delineation filed with the NCIP, by a majority of the members of the
ICCs/IPs;
c) Delineation Proper. The official delineation of ancestral domain boundaries
including census of all community members therein, shall be immediately
undertaken by the Ancestral Domains Office upon filing of the application by the
ICCs/IPs concerned. Delineation will be done in coordination with the community
concerned and shall at all times include genuine involvement and participation by
the members of the communities concerned;
d) Proof Required. Proof of Ancestral Domain Claims shall include the testimony
of elders or community under oath, and other documents directly or indirectly
attesting to the possession or occupation of the area since time immemorial by
such ICCs/IPs in the concept of owners which shall be any one (1) of the
following authentic documents:
1) Written accounts of the ICCs/IPs customs and traditions;
proof. However, if the proof is deemed insufficient, the Ancestral Domains Office
shall require the submission of additional evidence: Provided, That the Ancestral
Domains Office shall reject any claim that is deemed patently false or fraudulent
after inspection and verification: Provided, further, That in case of rejection, the
Ancestral Domains Office shall give the applicant due notice, copy furnished all
concerned, containing the grounds for denial. The denial shall be appealable to the
NCIP: Provided, furthermore, That in cases where there are conflicting claims
among ICCs/IPs on the boundaries of ancestral domain claims, the Ancestral
Domains Office shall cause the contending parties to meet and assist them in
coming up with a preliminary resolution of the conflict, without prejudice to its
full adjudication according to the section below.
xxxx
To remove all doubts about the irreconcilability of the MOA-AD with the
present legal system, a discussion of not only the Constitution and domestic
statutes, but also of international law is in order, for
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.
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
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.
(b) Any action which has the aim or effect of dispossessing them of their
lands, territories or resources;
(c) Any form of forced population transfer which has the aim or effect
of violating or undermining any of their rights;
(d) Any form of forced assimilation or integration;
(e) Any form of propaganda designed to promote or incite racial or
ethnic discrimination directed against them.
Article 21
1. Indigenous peoples have the right, without discrimination, to the improvement
of their economic and social conditions, including, inter alia, in the areas of
education, employment, vocational training and retraining, housing,
sanitation, health and social security.
2. States shall take effective measures and, where appropriate, special measures
to ensure continuing improvement of their economic and social conditions.
Particular attention shall be paid to the rights and special needs of
indigenous elders, women, youth, children and persons with disabilities.
Article 26
1. Indigenous peoples have the right to the lands, territories and resources
which they have traditionally owned, occupied or otherwise used or
acquired.
2. Indigenous peoples have the right to own, use, develop and control the lands,
territories and resources that they possess by reason of traditional ownership
or other traditional occupation or use, as well as those which they have
otherwise acquired.
3. States shall give legal recognition and protection to these lands, territories and
resources. Such recognition shall be conducted with due respect to the
customs, traditions and land tenure systems of the indigenous peoples
concerned.
Article 30
1. Military activities shall not take place in the lands or territories of indigenous
peoples, unless justified by a relevant public interest or otherwise freely
agreed with or requested by the indigenous peoples concerned.
2. States shall undertake effective consultations with the indigenous peoples
concerned, through appropriate procedures and in particular through their
representative institutions, prior to using their lands or territories for military
activities.
Article 32
1. Indigenous peoples have the right to determine and develop priorities and
strategies for the development or use of their lands or territories and other
resources.
2. States shall consult and cooperate in good faith with the indigenous peoples
concerned through their own representative institutions in order to obtain
their free and informed consent prior to the approval of any project affecting
their lands or territories and other resources, particularly in connection with
the development, utilization or exploitation of mineral, water or other
resources.
3. States shall provide effective mechanisms for just and fair redress for any such
activities, and appropriate measures shall be taken to mitigate adverse
environmental, economic, social, cultural or spiritual impact.
Article 37
1. Indigenous peoples have the right to the recognition, observance and
enforcement of treaties, agreements and other constructive arrangements
concluded with States or their successors and to have States honour and
respect such treaties, agreements and other constructive arrangements.
2. Nothing in this Declaration may be interpreted as diminishing or eliminating
the rights of indigenous peoples contained in treaties, agreements and other
constructive arrangements.
Article 38
States in consultation and cooperation with indigenous peoples, shall take the
appropriate measures, including legislative measures, to achieve the ends of this
Declaration.
Assuming that the UN DRIP, like the Universal Declaration on Human Rights,
must now be regarded as embodying customary international law a question which
the Court need not definitively resolve here the obligations enumerated therein do
not strictly require the Republic to grant the Bangsamoro people, through the
instrumentality of the BJE, the particular rights and powers provided for in the
MOA-AD. Even the more specific provisions of the UN DRIP are general in
scope, allowing for flexibility in its application by the different States.
There is, for instance, no requirement in the UN DRIP that States now
guarantee indigenous peoples their own police and internal security force. Indeed,
Article 8 presupposes that it is the State which will provide protection for
indigenous peoples against acts like the forced dispossession of their lands a
function that is normally performed by police officers. If the protection of a right
so essential to indigenous peoples identity is acknowledged to be the responsibility
of the State, then surely the protection of rights less significant to them as such
peoples would also be the duty of States. Nor is there in the UN DRIP an
acknowledgement of the right of indigenous peoples to the aerial domain and
atmospheric space. What it upholds, in Article 26 thereof, is the right of indigenous
peoples to the lands, territories and resources which they have traditionally owned,
occupied or otherwise used or acquired.
Moreover, the UN DRIP, while upholding the right of indigenous peoples to
autonomy, does not obligate States to grant indigenous peoples the nearindependent status of an associated state. All the rights recognized in that
document are qualified in Article 46 as follows:
1. Nothing in this Declaration may be interpreted as implying for any State,
people, group or person any right to engage in any activity or to perform any
act contrary to the Charter of the United Nations or construed as
authorizing or encouraging any action which would dismember or
impair, totally or in part, the territorial integrity or political unity of
sovereign and independent States.
Even if the UN DRIP were considered as part of the law of the land pursuant to
Article II, Section 2 of the Constitution, it would not suffice to uphold the validity
of the MOA-AD so as to render its compliance with other laws unnecessary.
It is, therefore, clear that the MOA-AD contains numerous provisions that
cannot be reconciled with the Constitution and the laws as presently
worded. Respondents proffer, however, that the signing of the MOA-AD alone
would not have entailed any violation of law or grave abuse of discretion on their
part, precisely because it stipulates that the provisions thereof inconsistent with the
laws shall not take effect until these laws are amended. They cite paragraph 7 of
the MOA-AD strand on GOVERNANCE quoted earlier, but which is reproduced
below for convenience:
7. The Parties agree that the mechanisms and modalities for the actual
implementation of this MOA-AD shall be spelt out in the Comprehensive
Compact to mutually take such steps to enable it to occur effectively.
Any provisions of the MOA-AD requiring amendments to the existing legal
framework shall come into force upon signing of a Comprehensive Compact and
upon effecting the necessary changes to the legal framework with due regard to
non derogation of prior agreements and within the stipulated timeframe to be
contained in the Comprehensive Compact.
It bears noting that the GRP Peace Panel, in exploring lasting solutions to
the Moro Problem through its negotiations with the MILF, was not restricted by
E.O. No. 3 only to those options available under the laws as they presently
stand. One of the components of a comprehensive peace process, which E.O. No. 3
collectively refers to as the Paths to Peace, is the pursuit of social, economic, and
political reforms which may require new legislation or even constitutional
amendments. Sec. 4(a) of E.O. No. 3, which reiterates Section 3(a), of E.O. No.
125,[167] states:
SECTION 4. The Six Paths to Peace. The components of the comprehensive
peace process comprise the processes known as the Paths to Peace. These
component processes are interrelated and not mutually exclusive, and must
therefore be pursued simultaneously in a coordinated and integrated fashion. They
shall include, but may not be limited to, the following:
a. PURSUIT OF SOCIAL, ECONOMIC AND POLITICAL REFORMS. This
component involves the vigorous implementation of various
policies, reforms, programs and projects aimed at addressing the root
causes of internal armed conflicts and social unrest. This may require
administrative action, new legislation or even constitutional
amendments.
x x x x (Emphasis supplied)
Executive, the President has the general responsibility to promote public peace,
and as Commander-in-Chief, she has the more specific duty to prevent and
suppress rebellion and lawless violence.[169]
As the experience of nations which have similarly gone through internal armed
conflict will show, however, peace is rarely attained by simply pursuing a military
solution.Oftentimes, changes as far-reaching as a fundamental reconfiguration of
the nations constitutional structure is required. The observations of Dr. Kirsti
Samuels are enlightening, to wit:
x x x [T]he fact remains that a successful political and governance transition
must form the core of any post-conflict peace-building mission. As we have
observed in Liberia and Haiti over the last ten years, conflict cessation without
modification of the political environment, even where state-building is undertaken
through technical electoral assistance and institution- or capacity-building, is
unlikely to succeed. On average, more than 50 percent of states emerging from
conflict return to conflict. Moreover, a substantial proportion of transitions have
resulted in weak or limited democracies.
The design of a constitution and its constitution-making process can play an
important role in the political and governance transition. Constitution-making
after conflict is an opportunity to create a common vision of the future of a state
and a road map on how to get there. The constitution can be partly a peace
agreement and partly a framework setting up the rules by which the new
democracy will operate.[170]
In the same vein, Professor Christine Bell, in her article on the nature and legal
status of peace agreements, observed that the typical way that peace agreements
establish or confirm mechanisms for demilitarization and demobilization is by
linking them to new constitutional structures addressing governance, elections,
and legal and human rights institutions.[171]
In the Philippine experience, the link between peace agreements and
constitution-making has been recognized by no less than the framers of the
Constitution. Behind the provisions of the Constitution on autonomous
regions[172] is the framers intention to implement a particular peace agreement,
namely, the Tripoli Agreement of 1976 between the GRP and the MNLF, signed by
then Undersecretary of National Defense Carmelo Z. Barbero and then MNLF
Chairman Nur Misuari.
MR. ROMULO. There are other speakers; so, although I have some more
questions, I will reserve my right to ask them if they are not covered by the other
speakers. I have only two questions.
I heard one of the Commissioners say that local autonomy already
exists in the Muslim region; it is working very well; it has, in fact, diminished a
great deal of the problems. So, my question is: since that already exists, why do
we have to go into something new?
MR. OPLE. May I answer that on behalf of Chairman
Nolledo. Commissioner Yusup Abubakar is right that certain definite steps have
been taken to implement the provisions of theTripoli Agreement with respect
to an autonomous region in Mindanao. This is a good first step, but there is no
question that this is merely a partial response to the Tripoli Agreement itself
and to the fuller standard of regional autonomy contemplated in that
agreement, and now by state policy.[173] (Emphasis supplied)
initiative and referendum she may submit proposals for constitutional change to
Congress in a manner that does not involve the arrogation of constituent powers.
In Sanidad v. COMELEC,[174] in issue was the legality of then President Marcos act
of directly submitting proposals for constitutional amendments to a referendum,
bypassing the interim National Assembly which was the body vested by the 1973
Constitution with the power to propose such amendments. President Marcos, it will
be recalled, never convened the interim National Assembly. The majority upheld
the Presidents act, holding that the urges of absolute necessity compelled the
President as the agent of the people to act as he did, there being no interim
National Assembly to propose constitutional amendments. Against this ruling,
Justices Teehankee and Muoz Palma vigorously dissented. The Courts concern at
present, however, is not with regard to the point on which it was then divided in
that controversial case, but on that which was not disputed by either side.
Justice Teehankees dissent,[175] in particular, bears noting. While he disagreed
that the President may directly submit proposed constitutional amendments to a
referendum, implicit in his opinion is a recognition that he would have upheld the
Presidents action along with the majority had the President convened the interim
National Assembly and coursed his proposals through it. Thus Justice Teehankee
opined:
Since the Constitution provides for the organization of the essential departments
of government, defines and delimits the powers of each and prescribes the manner
of the exercise of such powers, and the constituent power has not been granted to
but has been withheld from the President or Prime Minister, it follows that the
Presidents questioned decrees proposing and submitting constitutional
amendments directly to the people (without the intervention of the interim
National Assembly in whom the power is expressly vested) are devoid of
constitutional and legal basis.[176] (Emphasis supplied)
From the foregoing discussion, the principle may be inferred that the President in
the course of conducting peace negotiations may validly consider implementing
even those policies that require changes to the Constitution, but she
may not unilaterally implement them without the intervention of Congress, or
act in any way as if the assent of that body were assumed as a certainty.
Since, under the present Constitution, the people also have the power to directly
propose amendments through initiative and referendum, the President may also
submit her recommendations to the people, not as a formal proposal to be voted on
in a plebiscite similar to what President Marcos did in Sanidad, but for their
independent consideration of whether these recommendations merit being formally
proposed through initiative.
These recommendations, however, may amount to nothing more than the
Presidents suggestions to the people, for any further involvement in the process of
initiative by the Chief Executive may vitiate its character as a
genuine peoples initiative. The only initiative recognized by the Constitution is that
which truly proceeds from the people. As the Court stated in Lambino v.
COMELEC:[177]
The Lambino Group claims that their initiative is the people's voice.
However, the Lambino Group unabashedly states in ULAP Resolution No. 200602, in the verification of their petition with the COMELEC, that ULAP maintains
its unqualified support to the agenda of Her Excellency President Gloria
Macapagal-Arroyo for constitutional reforms. The Lambino Group
thus admits that their people's initiative is an unqualified support to the
agenda of the incumbent President to change the Constitution. This forewarns the
Court to be wary of incantations of people's voice or sovereign will in the present
initiative.
It will be observed that the President has authority, as stated in her oath of
office,
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.
[178]
intents and purposes is a proposal for new legislation coming from the President.
[179]
What remains for discussion in the Comprehensive Compact would merely be the
implementing details for these consensus points and, notably, the deadline for
effecting the contemplated changes to the legal framework.
Plainly, stipulation-paragraph 7 on GOVERNANCE is inconsistent with
the limits of the Presidents authority to propose constitutional amendments, it
being a virtual guarantee that the Constitution and the laws of the Republic of the
Philippines will certainly be adjusted to conform to all the consensus points found
in the MOA-AD. Hence, it must be struck down as unconstitutional.
A comparison between the suspensive clause of the MOA-AD with a similar
provision appearing in the 1996 final peace agreement between the MNLF and the
GRP is most instructive.
As a backdrop, the parties to the 1996 Agreement stipulated that it would be
implemented in two phases. Phase I covered a three-year transitional period
involving the putting up of new administrative structures through Executive Order,
such as the Special Zone of Peace and Development (SZOPAD) and the Southern
Philippines Council for Peace and Development (SPCPD), while Phase II covered
the establishment of the new regional autonomous government through amendment
or repeal of R.A. No. 6734, which was then the Organic Act of the ARMM.
The stipulations on Phase II consisted of specific agreements on the
structure of the expanded autonomous region envisioned by the parties. To that
extent, they are similar to the provisions of the MOA-AD. There is, however, a
crucial difference between the two agreements. While the MOA-AD virtually
guarantees that the necessary changes to the legal framework will be put in
place, the GRP-MNLF final peace agreement states thus: Accordingly, these
provisions [on Phase II] shall be recommended by the GRP to Congress for
incorporation in the amendatory or repealing law.
Concerns have been raised that the MOA-AD would have given rise to a binding
international law obligation on the part of the Philippines to change its Constitution
in conformity thereto, on the ground that it may be considered either as a binding
agreement under international law, or a unilateral declaration of the Philippine
amnesty provided therein, citing, among other things, the participation of foreign
dignitaries and international organizations in the finalization of that
agreement. The Special Court, however, rejected this argument, ruling that the
Lome Accord is not a treaty and that it can only create binding obligations and
rights between the parties in municipal law, not in international law. Hence, the
Special Court held, it is ineffective in depriving an international court like it of
jurisdiction.
37. In regard to the nature of a negotiated settlement of an internal armed
conflict it is easy to assume and to argue with some degree of
plausibility, as Defence counsel for the defendants seem to have done,
that the mere fact that in addition to the parties to the conflict, the
document formalizing the settlement is signed by foreign heads of state
or their representatives and representatives of international
organizations, means the agreement of the parties is internationalized
so as to create obligations in international law.
xxxx
40. Almost every conflict resolution will involve the parties to the conflict and the
mediator or facilitator of the settlement, or persons or bodies under whose
auspices the settlement took place but who are not at all parties to the
conflict, are not contracting parties and who do not claim any obligation
from the contracting parties or incur any obligation from the settlement.
41. In this case, the parties to the conflict are the lawful authority of the State
and the RUF which has no status of statehood and is to all intents and
purposes a faction within the state. The non-contracting signatories of
the Lom Agreement were moral guarantors of the principle that, in the
terms of Article XXXIV of the Agreement, this peace agreement is
implemented with integrity and in good faith by both parties. The
moral guarantors assumed no legal obligation. It is recalled that the UN
by its representative appended, presumably for avoidance of doubt, an
understanding of the extent of the agreement to be implemented as not
including certain international crimes.
42. An international agreement in the nature of a treaty must create rights and
obligations regulated by international law so that a breach of its terms will
be a breach determined under international law which will also provide
principle means of enforcement. The Lom Agreement created neither
rights nor obligations capable of being regulated by international
law. An agreement such as the Lom Agreement which brings to an end
an internal armed conflict no doubt creates a factual situation of
restoration of peace that the international community acting through
the Security Council may take note of. That, however, will not convert it
to an international agreement which creates an obligation enforceable in
international, as distinguished from municipal, law. A breach of the terms
of such a peace agreement resulting in resumption of internal armed conflict
or creating a threat to peace in the determination of the Security Council
may indicate a reversal of the factual situation of peace to be visited with
possible legal consequences arising from the new situation of conflict
created. Such consequences such as action by the Security Council pursuant
to Chapter VII arise from the situation and not from the agreement, nor from
the obligation imposed by it. Such action cannot be regarded as a remedy for
the breach. A peace agreement which settles an internal armed conflict
cannot be ascribed the same status as one which settles an international
armed conflict which, essentially, must be between two or more warring
States. The Lom Agreement cannot be characterised as an international
instrument. x x x (Emphasis, italics and underscoring supplied)
Similarly, that the MOA-AD would have been signed by representatives of States
and international organizations not parties to the Agreement would not have
sufficed to vest in it a binding character under international law.
In another vein, concern has been raised that the MOA-AD would amount to
a unilateral declaration of the Philippine State, binding under international law, that
it would comply with all the stipulations stated therein, with the result that it would
have to amend its Constitution accordingly regardless of the true will of the
people. Cited as authority for this view is Australia v. France,[181] also known as
the Nuclear Tests Case, decided by the International Court of Justice (ICJ).
In the Nuclear Tests Case, Australia challenged before the ICJ the legality of
Frances nuclear tests in the South Pacific. France refused to appear in the case, but
public statements from its President, and similar statements from other French
officials including its Minister of Defence, that its 1974 series of atmospheric tests
would be its last, persuaded the ICJ to dismiss the case. [182] Those statements, the
ICJ held, amounted to a legal undertaking addressed to the international
community, which required no acceptance from other States for it to become
effective.
Essential to the ICJ ruling is its finding that the French government intended
to be bound to the international community in issuing its public statements, viz:
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
Assessing the MOA-AD in light of the above criteria, it would not have
amounted to a unilateral declaration on the part of the Philippine State to the
international community. The Philippine panel did not draft the same with the clear
intention of being bound thereby to the international community as a whole or to
any State, but only to the MILF. While there were States and international
organizations involved, one way or another, in the negotiation and projected
signing of the MOA-AD, they participated merely as witnesses or, in the case
of Malaysia, as facilitator. As held in the Lom Accord case, the mere fact that in
addition to the parties to the conflict, the peace settlement is signed by
representatives of states and international organizations does not mean that the
agreement is internationalized so as to create obligations in international law.
Since the commitments in the MOA-AD were not addressed to States, not to
give legal effect to such commitments would not be detrimental to the security of
international intercourse to the trust and confidence essential in the relations
among States.
In one important respect, the circumstances surrounding the MOA-AD are
closer to that of Burkina Faso wherein, as already discussed, the Mali Presidents
statement was not held to be a binding unilateral declaration by the ICJ. As in that
case, there was also nothing to hinder the Philippine panel, had it really been its
intention to be bound to other States, to manifest that intention by formal
agreement. Here, that formal agreement would have come about by the inclusion in
the MOA-AD of a clear commitment to be legally bound to the international
community, not just the MILF, and by an equally clear indication that the
signatures of the participating states-representatives would constitute an
acceptance of that commitment. Entering into such a formal agreement would not
have resulted in a loss of face for the Philippine government before the
international community, which was one of the difficulties that prevented the
French Government from entering into a formal agreement with other
countries. That the Philippine panel did not enter into such a formal agreement
suggests that it had no intention to be bound to the international community. On
that ground, the MOA-AD may not be considered a unilateral declaration under
international law.
The MOA-AD not being a document that can bind the Philippines under
international law notwithstanding, respondents almost consummated act
of guaranteeing amendmentsto the legal framework is, by itself, sufficient to
constitute grave abuse of discretion. The grave abuse lies not in the fact that they
considered, as a solution to the Moro Problem, the creation of a state within a state,
but in their brazen willingness to guarantee that Congress and the sovereign
Filipino people would give their imprimatur to their solution. Upholding such
an act would amount to authorizing a usurpation of the constituent powers vested
only in Congress, a Constitutional Convention, or the people themselves through
the process of initiative, for the only way that the Executive can ensure the
outcome of the amendment process is through an undue influence or interference
with that process.
The sovereign people may, if it so desired, go to the extent of giving up a
portion of its own territory to the Moros for the sake of peace, for it can change the
Constitution in any it wants, so long as the change is not inconsistent with what, in
international law, is known as Jus Cogens.[184] Respondents, however, may not
preempt it in that decision.
SUMMARY
The petitions are ripe for adjudication. The failure of respondents to consult
the local government units or communities affected constitutes a departure by
respondents from their mandate under E.O. No. 3. Moreover, respondents exceeded
their authority by the mere act of guaranteeing amendments to the
Constitution. Any alleged violation of the Constitution by any branch of
government is a proper matter for judicial review.
As the petitions involve constitutional issues which are of paramount public
interest or of transcendental importance, the Court grants the petitioners,
petitioners-in-intervention and intervening respondents the requisite locus standi in
keeping with the liberal stance adopted in David v. Macapagal-Arroyo.
Contrary to the assertion of respondents that the non-signing of the MOA-AD and
the eventual dissolution of the GRP Peace Panel mooted the present petitions, the
Court finds that the present petitions provide an exception to the moot and
academic principle in view of (a) the grave violation of the Constitution involved;
(b) the exceptional character of the situation and paramount public interest; (c) the
need to formulate controlling principles to guide the bench, the bar, and the public;
and (d) the fact that the case is capable of repetition yet evading review.
The MOA-AD is a significant part of a series of agreements necessary to carry out
the GRP-MILF Tripoli Agreement on Peace signed by the government and the
MILF back in June 2001. Hence, the present MOA-AD can be renegotiated or
another one drawn up that could contain similar or significantly dissimilar
provisions compared to the original.
The Court, however, finds that the prayers for mandamus have been rendered moot
in view of the respondents action in providing the Court and the petitioners with
the official copy of the final draft of the MOA-AD and its annexes.
The peoples right to information on matters of public concern under Sec. 7, Article
III of the Constitution is in splendid symmetry with the state policy of full public
disclosure of all its transactions involving public interest under Sec. 28, Article II
of the Constitution. The right to information guarantees the right of the people to
demand information, while Section 28 recognizes the duty of officialdom to give
information even if nobody demands. The complete and effective exercise of the
right to information necessitates that its complementary provision on public
disclosure derive the same self-executory nature, subject only to reasonable
safeguards or limitations as may be provided by law.
The contents of the MOA-AD is a matter of paramount public concern involving
public interest in the highest order. In declaring that the right to information
contemplates steps and negotiations leading to the consummation of the contract,
jurisprudence finds no distinction as to the executory nature or commercial
character of the agreement.
An essential element of these twin freedoms is to keep a continuing dialogue
or process of communication between the government and the people. Corollary to
these twin rights is the design for feedback mechanisms. The right to public
consultation was envisioned to be a species of these public rights.
At least three pertinent laws animate these constitutional imperatives and justify
the exercise of the peoples right to be consulted on relevant matters relating to the
peace agenda.
One, E.O. No. 3 itself is replete with mechanics for continuing consultations on
both national and local levels and for a principal forum for consensus-building. In
fact, it is the duty of the Presidential Adviser on the Peace Process to conduct
regular dialogues to seek relevant information, comments, advice, and
recommendations from peace partners and concerned sectors of society.
Two, Republic Act No. 7160 or the Local Government Code of 1991 requires all
national offices to conduct consultations before any project or program critical to
the environment and human ecology including those that may call for the eviction
of a particular group of people residing in such locality, is implemented
therein. The MOA-AD is one peculiar program that unequivocally and unilaterally
vests ownership of a vast territory to the Bangsamoro people, which could
pervasively and drastically result to the diaspora or displacement of a great number
of inhabitants from their total environment.
Three, Republic Act No. 8371 or the Indigenous Peoples Rights Act of 1997
provides for clear-cut procedure for the recognition and delineation of ancestral
domain, which entails, among other things, the observance of the free and prior
informed consent of the Indigenous Cultural Communities/Indigenous
Peoples. Notably, the statute does not grant the Executive Department or any
government agency the power to delineate and recognize an ancestral domain
claim by mere agreement or compromise.
The invocation of the doctrine of executive privilege as a defense to the general
right to information or the specific right to consultation is untenable. The various
explicit legal provisions fly in the face of executive secrecy. In any event,
respondents effectively waived such defense after it unconditionally disclosed the
official copies of the final draft of the MOA-AD, for judicial compliance and
public scrutiny.
IN SUM, the Presidential Adviser on the Peace Process committed grave abuse of
discretion when he failed to carry out the pertinent consultation process, as
mandated by E.O. No. 3, Republic Act No. 7160, and Republic Act No. 8371. The
furtive process by which the MOA-AD was designed and crafted runs contrary to
and in excess of the legal authority, and amounts to a whimsical, capricious,
oppressive, arbitrary and despotic exercise thereof. It illustrates a gross evasion of
positive duty and a virtual refusal to perform the duty enjoined.
The MOA-AD cannot be reconciled with the present Constitution and laws. Not
only its specific provisions but the very concept underlying them, namely, the
associative
relationship
envisioned
between
the
GRP
and
the
BJE, are unconstitutional, for the concept presupposes that the associated entity is
a state and implies that the same is on its way to independence.
While there is a clause in the MOA-AD stating that the provisions thereof
inconsistent with the present legal framework will not be effective until that
framework is amended, the same does not cure its defect. The inclusion of
provisions in the MOA-AD establishing an associative relationship between the
BJE and the Central Government is, itself, a violation of the Memorandum of
Instructions From The President dated March 1, 2001, addressed to the government
peace panel. Moreover, as the clause is worded, it virtually guarantees that the
necessary amendments to the Constitution and the laws will eventually be put in
place. Neither the GRP Peace Panel nor the President herself is authorized to make
such a guarantee. Upholding such an act would amount to authorizing a usurpation
of the constituent powers vested only in Congress, a Constitutional Convention, or
the people themselves through the process of initiative, for the only way that the
Executive can ensure the outcome of the amendment process is through an undue
influence or interference with that process.
While the MOA-AD would not amount to an international agreement or
unilateral declaration binding on the Philippines under international law,
respondents act of guaranteeing amendments is, by itself, already a constitutional
violation that renders the MOA-AD fatally defective.
WHEREFORE, respondents motion to dismiss is DENIED. The main and
intervening petitions are GIVEN DUE COURSE and hereby GRANTED.
WE CONCUR:
REYNATO S. PUNO
Chief Justice
ANTONIO T. CARPIO
Associate Justice
RENATO C. CORONA
ADOLFO S. AZCUNA
Associate Justice
Associate Justice
DANTE O. TINGA
Associate Justice
MINITA V. CHICO-NAZARIO
Associate Justice
PRESBITERO J. VELASCO,
JR.
Associate Justice
ANTONIO EDUARDO B.
NACHURA
Associate Justice
RUBEN T. REYES
Associate Justice
TERESITA J. LEONARDO-DE
CASTRO
Associate Justice
ARTURO D. BRION
Associate Justice
CERTIFICATION
REYNATO S. PUNO
Chief Justice
[1]
Eric Gutierrez and Abdulwahab Guialal, THE UNFINISHED JIHAD: THE MORO ISLAMIC LIBERATION
FRONT AND PEACE IN MINDANAO IN REBELS, WARLORDS AND ULAMA: A READER ON
MUSLIM SEPARATISM AND THE WAR IN SOUTHERN PHILIPPINES 275 (1999).
[2]
Memorandum of Respondents dated September 24, 2008, p. 10.
[3]
Memorandum of Respondents dated September 24, 2008, pp. 10-11.
[4]
Vide Salah Jubair, THE LONG ROAD TO PEACE: INSIDE THE GRP-MILF PEACE PROCESS 35-36 (2007).
[5]
Memorandum of Respondents dated September 24, 2008, p. 12.
[6]
Vide Salah Jubair, THE LONG ROAD TO PEACE: INSIDE THE GRP-MILF PEACE PROCESS 40-41 (2007).
[7]
Composed of its Chairperson, Sec. Rodolfo Garcia, and members, Atty. Leah Armamento, Atty. Sedfrey
Candelaria, with Mark Ryan Sullivan as Secretariat head.
[8]
Represented by Governor Jesus Sacdalan and/or Vice-Governor Emmanuel Piol.
[9]
Rollo (G.R. No. 183591), pp. 3-33.
[10]
Supplement to Petition (with motion for leave) of August 11, 2008, rollo (G.R. No. 183591), pp. 143-162.
[11]
Rollo (G.R. No. 183752), pp. 3-28.
[12]
Represented by Mayor Celso L. Lobregat.
[13]
Rollo (G.R. No. 183591), pp. 132-135; rollo (G.R. No. 183752), pp. 68-71.
[14]
Rollo (G.R. No. 183591), pp. 130-131; rollo (G.R. No. 183752), pp. 66-67.
[15]
Rollo (G.R. No. 183752), pp. 173-246.
[16]
Represented by Mayor Lawrence Lluch Cruz.
[17]
Represented by Governor Rolando Yebes.
[18]
Namely, Seth Frederick Jaloslos, Fernando Cabigon, Jr., Uldarico Mejorada II, Edionar Zamoras, Edgar Baguio,
Cedric Adriatico, Felixberto Bolando, Joseph Brendo Ajero, Norbideiri Edding, Anecito Darunday, Angelica
Carreon, and Luzviminda Torrino.
[19]
Rollo (G.R. No. 183951), pp. 3-33.
[20]
Rollo (G.R. No. 183962), pp. 3- 20.
[21]
Represented by Mayor Cherrylyn Santos-Akbar.
[22]
Represented by Gov. Suharto Mangudadatu.
[23]
Represented by Mayor Noel Deano.
[24]
Rollo (G.R. No. 183591), pp. 451-453.
[25]
R.A. No. 6734, as amended by R.A. 9054 entitled AN ACT TO STRENGTHEN AND EXPAND
THE ORGANIC ACT FOR THE AUTONOMOUS REGION IN MUSLIM MINDANAO, AMENDING FOR
THE PURPOSE REPUBLIC ACT NO. 6734, ENTITLED AN ACT OF PROVIDING FOR THE
AUTONOMOUS REGION IN MUSLIM MINDANAO, AS AMENDED.
[26]
R.A. No. 8371, AN ACT TO RECOGNIZE, PROTECT AND PROMOTE THE RIGHTS OF INDIGENOUS
CULTURAL COMMUNITIES/INDIGENOUS PEOPLES, CREATING A NATIONAL COMMISSION ON
INDIGENOUS PEOPLES, ESTABLISHING IMPLEMENTING MECHANISMS, APPROPRIATING FUNDS
THEREFOR, AND FOR OTHER PURPOSES, October 29, 1997.
[27]
Cesar Adib Majul, THE GENERAL NATURE OF ISLAMIC LAW AND ITS APPLICATION IN THE
PHILIPPINES, lecture delivered as part of the Ricardo Paras Lectures, a series jointly sponsored by the
Commission on Bar Integration of the Supreme Court, the Integrated Bar of the Philippines and the U.P. Law
Center, September 24, 1977.
[28]
Ibid., vide M.A. Muqtedar Khan Ph.D., IMMIGRANT AMERICAN MUSLIMS AND THE MORAL
DILEMMAS OF CITIZENSHIP, http://www.islamfortoday.com/khan04.htm, visited on September 18, 2008,
and Syed Shahabuddin,MUSLIM WORLD AND THE CONTEMPORARY IJMA' ON RULES OF
GOVERNANCE - II, http://www.milligazette.com/Archives/2004/01-15May04-Print-Edition/0105200471.htm,
visited on September 18, 2008.
[29]
MOA-AD Terms of Reference.
[30]
MOA-AD, Concepts and Principles, par. 1.
[31]
A traditional Muslim historical account of the acts of Shariff Kabungsuwan is quoted by historian Cesar Adib
Majul in his book, MUSLIMS IN THE PHILIPPINES (1973):
After a time it came to pass that Mamalu, who was the chief man next to Kabungsuwan, journeyed
to Cotabato. He found there that many of the people had ceased to regard the teachings of the Koran
and had fallen into evil ways. Mamamlu sent to Kabungsuwan word of these things.
Kabungsuwan with a portion of his warriors went from Malabang to Cotabato and found that the
word sent to him by Mamamlu was true. Then he assembled together all the people. Those of them,
who had done evilly and disregarded the teachings of the Koran thenceforth, he drove out of the town
into the hills, with their wives and children.
Those wicked one who were thus cast out were the beginnings of the tribes of the Tirurais
and Manobos, who live to the east of Cotabato in the country into which their evil forefathers were
driven. And even to this day they worship not God; neither do they obey the teachings of the
Koran . . . But the people of Kabungsuwan, who regarded the teachings of the Koran and lived in
fear of God, prospered and increased, and we Moros of today are their descendants. (Citation
omitted, emphasis supplied).
[32]
Id., par. 2.
Id., par. 3.
[34]
Id., par. 4.
[35]
Francisco L. Gonzales, SULTANS OF A VIOLENT LAND, in Rebels, Warlords and Ulama: A Reader on Muslim
Separatism and the War in Southern Philippines 99, 103 (1999).
[36]
The Charter of the Assembly of First Nations, the leading advocacy group for the indigenous peoples of Canada,
adopted in 1985, begins thus:
WE THE CHIEFS OF THE INDIAN FIRST NATIONS IN CANADA HAVING DECLARED:
THAT our peoples are the original peoples of this land having been put here by the Creator; x x x.
[37]
Id., par. 6.
[38]
MOA-AD, Territory, par. 1.
[39]
Id., par. 2(c).
[40]
Id., par. 2(d).
[41]
Id., par. 2(e).
[42]
Id., par. 2(f).
[43]
Id., par, 2(g)(1).
[44]
Id., par. 2(h).
[45]
Id., par. 2(i).
[46]
MOA-AD, Resources, par. 4.
[47]
Ibid.
[48]
Id., par. 5.
[49]
Id., par. 6.
[50]
Id., par. 7.
[51]
Id., par. 9.
[52]
MOA-AD, Governance, par. 3.
[53]
IN WITNESS WHEREOF, the undersigned, being the representatives of the Parties[,] hereby affix their
signatures.
[54]
Vide 1987 CONSTITUTION, Article VIII, Section 1.
[55]
Vide Muskrat v. US, 219 US 346 (1911).
[56]
Flast v. Cohen, 88 S.Ct. 1942, 1950 (1968).
[57]
Didipio Earth Savers Multi-Purpose Association, Incorporated (DESAMA) v. Gozun, G.R. No. 157882, March
30, 2006, 485 SCRA 286.
[33]
[58]
[106]
Alunan III v. Mirasol, 342 Phil. 476 (1997); Viola v. Alunan III, 343 Phil. 184 (1997); Chief Superintendent Acop
v. Guingona, Jr., supra note 98; Roble Arrastre, Inc. v. Villaflor, G.R. No. 128509, August 22, 2006, 499 SCRA
434, 447.
[107]
CONSTITUTION, Article III, Sec. 7.
[108]
80 Phil. 383 (1948).
[109]
Legaspi v. Civil Service Commission, G.R. No. L-72119, May 29, 1987, 150 SCRA 530.
[110]
162 Phil. 868 (1976).
[111]
Baldoza v. Dimaano, supra at 876.
[112]
Legaspi v. Civil Service Commission, supra note 109.
[113]
Chavez v. PCGG, 360 Phil 133, 164 (1998).
[114]
In Legaspi v. Civil Service Commission, supra note 109 at 541, it was held that:
In determining whether or not a particular information is of public concern there is no rigid test which
can be applied. `Public concern' like `public interest' is a term that eludes exact definition. Both terms embrace a
broad spectrum of subjects which the public may want to know, either because these directly affect their lives,
or simply because such matters naturally arouse the interest of an ordinary citizen. In the final analysis, it is for
the courts to determine on a case by case basis whether the matter at issue is of interest or importance, as it
relates to or affects the public.
[115]
Respondents Comment of August 4, 2008, p. 9.
[116]
Subido v. Ozaeta, supra note 108.
[117]
Taada, et al. v. Hon. Tuvera, et al., 220 Phil. 422 (1985); Taada, v. Hon. Tuvera, 230 Phil. 528 (1986).
[118]
Legaspi v. Civil Service Commission, supra note 109.
[119]
Valmonte v. Belmonte, Jr., G.R. No. 74930, February 13, 1989, 170 SCRA 256.
[120]
Chavez v. PCGG, supra note 113; Chavez v. PCGG, supra note 102.
[121]
Bantay Republic Act or BA-RA 7941 v. Commission on Elections, G.R. 177271, May 4, 2007, 523 SCRA 1.
[122]
Chavez v. Public Estates Authority, 433 Phil. 506, 532-533 (2002).
[123]
Vide V RECORD, CONSTITUTIONAL COMMISSION 26-28 (September 24, 1986) which is replete with such
descriptive phrase used by Commissioner Blas Ople.
[124]
CONSTITUTION, Article II, Sec. 28.
[125]
Bernas, Joaquin, THE 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES: A
COMMENTARY 100 (2003).
[126]
Vide Bernas, Joaquin, THE INTENT OF THE 1986 CONSTITUTION WRITERS 155 (1995).
[127]
Vide Chavez v. Public Estates Authority, supra note 122.
[128]
V RECORD, CONSTITUTIONAL COMMISSION 25 (September 24, 1986).
[129]
V RECORD, CONSTITUTIONAL COMMISSION 28-29 (September 24, 1986). The phrase safeguards on
national interest that may be provided by law was subsequently replaced by reasonable conditions, as proposed
by Commissioner Davide [vide V RECORD, CONSTITUTIONAL COMMISSION 30 (September 24, 1986)].
[130]
In Chavez v. National Housing Authority, G.R. No. 164527, August 15, 2007, 530 SCRA 235, 331, the Court
stated:
x x x The duty to disclose covers only transactions involving public interest, while the duty to allow
access has a broader scope of information which embraces not only transactions involving public interest, but
any matter contained in official communications and public documents of the government
agency. (Underscoring supplied)
[131]
Valmonte v. Belmonte, Jr., supra note 119.
[132]
V RECORD, CONSTITUTIONAL COMMISSION 28, 30 (September 24, 1986).
[133]
Supra note 55.
[134]
EXECUTIVE ORDER No. 3 (2001), Sec. 3 (a).
[135]
EXECUTIVE ORDER No. 3 (2001), Sec. 4 (b).
[136]
Respondents Memorandum of September 24, 2008, p. 44.
[137]
EXECUTIVE ORDER No. 3 (2001), Sec. 5 (b), par. 6.
[138]
EXECUTIVE ORDER No. 3 (2001), Sec. 8, see also Sec. 10.
[139]
Cf. Garcia v. Board of Investments, G.R. No. 88637, September 7, 1989, 177 SCRA 374, 382-384 where it was
held that the Omnibus Investment Code of 1987 mandates the holding of consultations with affected
communities, whenever necessary, on the acceptability of locating the registered enterprise within the
community.
[140]
In their Memorandum, respondents made allegations purporting to show that consultations were conducted
on August 30, 2001 in Marawi City and Iligan City, on September 20, 2001 in Midsayap, Cotabato, and
on January 18-19, 2002 in Metro Manila. (Memorandum of September 24, 2008, p. 13)
[141]
Cf. Chavez v. Public Estates Authority, supra note 120.
[142]
REPUBLIC ACT No. 7160, Sec. 2(c).
[143]
REPUBLIC ACT No. 7160, Sec. 27.
[144]
416 Phil. 438 (2001).
[145]
Id.; vide Alvarez v. PICOP Resources, Inc., G.R. No. 162243, November 29, 2006, 508 SCRA 498; Cf. Bangus
Fry Fisherfolk v. Lanzanas, 453 Phil. 479 (2002).
[146]
Vide MOA-AD Concepts and Principles, pars. 2 & 7 in relation to Resources, par. 9 where vested property rights
are made subject to the cancellation, modification and review by the Bangsamoro Juridical Entity.
[147]
REPUBLIC ACT No. 8371 or THE INDIGENOUS PEOPLES RIGHTS ACT OF 1997, Sec. 16.
[148]
Id., Sec. 3 (g), Chapter VIII, inter alia.
[149]
Taada v. Tuvera, No. L-63915, December 29, 1986, 146 SCRA 446, 456.
[150]
C.I. Keitner and W.M. Reisman, FREE ASSOCIATION: THE UNITED STATES EXPERIENCE, 39 Tex. Int'l
L.J. 1 (2003).
[151]
The former Trust Territory of the Pacific Islands is made up of the Caroline Islands, the Marshall Islands, and
the Northern Mariana Islands, which extend east of the Philippines and northeast of Indonesia in the North
Pacific Ocean. (Ibid.)
[152]
H. Hills, FREE ASSOCIATION FOR MICRONESIA AND THE MARSHALL ISLANDS: A POLITICAL
STATUS MODEL, 27 U. Haw. L. Rev. 1 (2004).
[153]
Henkin, et al., INTERNATIONAL LAW: CASES AND MATERIALS, 2nd ed., 274 (1987).
[154]
Convention on Rights and Duties of States, Dec. 26, 1933, 49 Stat. 3097, 165 L.N.T.S. 19.
[155]
G.R. No. 158088, July 6, 2005, 462 SCRA 622, 632.
[156]
AN ACT TO STRENGTHEN AND EXPAND THE ORGANIC ACT FOR THE AUTONOMOUS REGION IN
MUSLIM MINDANAO, AMENDING FOR THE PURPOSE REPUBLIC ACT NO. 6734, ENTITLED AN
ACT PROVIDING FOR THE AUTONOMOUS REGION IN MUSLIM MINDANAO, AS AMENDED, March
31, 2001.
[157]
AN ACT TO RECOGNIZE, PROTECT AND PROMOTE THE RIGHTS OF INDIGENOUS CULTURAL
COMMUNITIES/INDIGENOUS PEOPLES, CREATING A NATIONAL COMMISSION ON INDIGENOUS
PEOPLES, ESTABLISHING IMPLEMENTING MECHANISMS, APPROPRIATING FUNDS THEREFOR,
AND FOR OTHER PURPOSES, October 29, 1997.
[158]
90 Phil. 70, 73-74 (1951).
[159]
177 Phil. 160, 178-179 (1979).
[160]
2 S.C.R. 217 (1998).
[161]
999 U.N.T.S. 171 (March 23, 1976).
[162]
993 U.N.T.S. 3 (January 3, 1976).
[163]
League of Nations Official Journal, Special Supp. No. 3 (October 1920).
[164]
Lorie M. Graham, RESOLVING INDIGENOUS CLAIMS TO SELF-DETERMINATION, 10 ILSA J. Int'l &
Comp. L. 385 (2004). Vide S. James Anaya, SUPERPOWER ATTITUDES TOWARD INDIGENOUS
PEOPLES AND GROUP RIGHTS, 93 Am. Soc'y Int'l L. Proc. 251 (1999): In general, the term indigenous is
used in association with groups that maintain a continuity of cultural identity with historical communities that
suffered some form of colonial invasion, and that by virtue of that continuity of cultural identity continue to
distinguish themselves from others.
[165]
Catherine J. Iorns, INDIGENOUS PEOPLES AND SELF DETERMINATION: CHALLENGING STATE
SOVEREIGNTY, 24 Case W. Res. J. Int'l L. 199 (1992).
[166]
Federico Lenzerini, SOVEREIGNTY REVISITED: INTERNATIONAL LAW AND PARALLEL
SOVEREIGNTY OF INDIGENOUS PEOPLES, 42 Tex. Int'l L.J. 155 (2006). Vide Christopher J.
Fromherz, INDIGENOUS PEOPLES' COURTS: EGALITARIAN JURIDICAL PLURALISM, SELFDETERMINATION,
AND
THE
UNITED
NATIONS DECLARATION ON
THE RIGHTS OF INDIGENOUS PEOPLES, 156 U. Pa. L. Rev. 1341 (2008): While Australia and the United
States made much of the distinction between self-government and self-determination on September 13, 2007,
the U.S. statement to the UN on May 17, 2004, seems to use these two concepts interchangeably. And, indeed,
under the DRIP [Declaration on the Rights of Indigenous Peoples], all three terms should be considered
virtually synonymous. Self-determination under the DRIP means internal self-determination when read in
conjunction with Article 46, and self-government, articulated in Article 4, is the core of the self-determination.
[167]
Case 5
EN BANC
The emergence on January 1, 1995 of the World Trade Organization, abetted by the
membership thereto of the vast majority of countries has revolutionized international
business and economic relations amongst states. It has irreversibly propelled the world
towards trade liberalization and economic globalization. Liberalization, globalization,
deregulation and privatization, the third-millennium buzz words, are ushering in a new
borderless world of business by sweeping away as mere historical relics the heretofore
traditional modes of promoting and protecting national economies like tariffs, export
subsidies, import quotas, quantitative restrictions, tax exemptions and currency
controls. Finding market niches and becoming the best in specific industries in a
market-driven and export-oriented global scenario are replacing age-old beggar-thyneighbor policies that unilaterally protect weak and inefficient domestic producers of
goods and services. In the words of Peter Drucker, the well-known management guru,
Increased participation in the world economy has become the key to domestic economic
growth and prosperity.
Brief Historical Background
To hasten worldwide recovery from the devastation wrought by the Second World
War, plans for the establishment of three multilateral institutions -- inspired by that grand
political body, the United Nations -- were discussed at Dumbarton Oaks and Bretton
Woods. The first was the World Bank (WB) which was to address the rehabilitation and
reconstruction of war-ravaged and later developing countries; the second, the
International Monetary Fund (IMF) which was to deal with currency problems; and the
third, the International Trade Organization (ITO), which was to foster order and
predictability in world trade and to minimize unilateral protectionist policies that invite
challenge, even retaliation, from other states. However, for a variety of reasons,
including its non-ratification by the United States, the ITO, unlike the IMF and WB, never
took off. What remained was only GATT -- the General Agreement on Tariffs and
Trade. GATT was a collection of treaties governing access to the economies of treaty
adherents with no institutionalized body administering the agreements or dependable
system of dispute settlement.
After half a century and several dizzying rounds of negotiations, principally the
Kennedy Round, the Tokyo Round and the Uruguay Round, the world finally gave birth
to that administering body -- the World Trade Organization -- with the signing of the
Final Act in Marrakesh, Morocco and the ratification of the WTO Agreement by its
members.
[1]
Like many other developing countries, the Philippines joined WTO as a founding
member with the goal, as articulated by President Fidel V. Ramos in two letters to the
Senate (infra), of improving Philippine access to foreign markets, especially its major
trading partners, through the reduction of tariffs on its exports, particularly agricultural
and industrial products. The President also saw in the WTO the opening of new
opportunities for the services sector x x x, (the reduction of) costs and uncertainty
associated with exporting x x x, and (the attraction of) more investments into the
country. Although the Chief Executive did not expressly mention it in his letter, the
Philippines - - and this is of special interest to the legal profession - - will benefit from
the WTO system of dispute settlement by judicial adjudication through the independent
WTO settlement bodies called (1) Dispute Settlement Panels and (2) Appellate
Tribunal.Heretofore, trade disputes were settled mainly through negotiations where
solutions were arrived at frequently on the basis of relative bargaining strengths, and
where naturally, weak and underdeveloped countries were at a disadvantage.
The Petition in Brief
Arguing mainly (1) that the WTO requires the Philippines to place nationals and
products of member-countries on the same footing as Filipinos and local products and
(2) that the WTO intrudes, limits and/or impairs the constitutional powers of both
Congress and the Supreme Court, the instant petition before this Court assails the WTO
Agreement for violating the mandate of the 1987 Constitution to develop a self-reliant
and independent national economy effectively controlled by Filipinos x x x (to) give
preference to qualified Filipinos (and to) promote the preferential use of Filipino labor,
domestic materials and locally produced goods.
Simply stated, does the Philippine Constitution prohibit Philippine participation in
worldwide trade liberalization and economic globalization? Does it prescribe Philippine
integration into a global economy that is liberalized, deregulated and privatized? These
are the main questions raised in this petition for certiorari, prohibition
and mandamus under Rule 65 of the Rules of Court praying (1) for the nullification, on
constitutional grounds, of the concurrence of the Philippine Senate in the ratification by
the President of the Philippines of the Agreement Establishing the World Trade
Organization (WTO Agreement, for brevity) and (2) for the prohibition of its
implementation and enforcement through the release and utilization of public funds, the
assignment of public officials and employees, as well as the use of government
properties and resources by respondent-heads of various executive offices concerned
therewith. This concurrence is embodied in Senate Resolution No. 97, dated December
14, 1994.
The Facts
On April 15, 1994, Respondent Rizalino Navarro, then Secretary of
the Department of Trade and Industry (Secretary Navarro, for brevity), representing the
Government of the Republic of the Philippines, signed in Marrakesh, Morocco, the Final
Act Embodying the Results of the Uruguay Round of Multilateral Negotiations (Final Act,
for brevity).
By signing the Final Act, Secretary Navarro on behalf of the Republic of the
Philippines, agreed:
[2]
(a) to submit, as appropriate, the WTO Agreement for the consideration of their
respective competent authorities, with a view to seeking approval of the Agreement in
accordance with their procedures; and
(b) to adopt the Ministerial Declarations and Decisions.
On August 12, 1994, the members of the Philippine Senate received a letter dated
August 11, 1994 from the President of the Philippines, stating among others that the
Uruguay Round Final Act is hereby submitted to the Senate for its concurrence pursuant
to Section 21, Article VII of the Constitution.
[3]
On August 13, 1994, the members of the Philippine Senate received another letter
from the President of the Philippines likewise dated August 11, 1994, which stated
among others that the Uruguay Round Final Act, the Agreement Establishing the World
Trade Organization, the Ministerial Declarations and Decisions, and the Understanding
on Commitments in Financial Services are hereby submitted to the Senate for its
concurrence pursuant to Section 21, Article VII of the Constitution.
[4]
On December 9, 1994, the President of the Philippines certified the necessity of the
immediate adoption of P.S. 1083, a resolution entitled Concurring in the Ratification of
the Agreement Establishing the World Trade Organization.
[5]
On December 14, 1994, the Philippine Senate adopted Resolution No. 97 which
Resolved, as it is hereby resolved, that the Senate concur, as it hereby concurs, in the
ratification by the President of the Philippines of the Agreement Establishing the World
Trade Organization. The text of the WTO Agreement is written on pages 137 et seq. of
Volume I of the 36-volumeUruguay Round of Multilateral Trade Negotiations and
includes various agreements and associated legal instruments (identified in the said
Agreement as Annexes 1, 2 and 3 thereto and collectively referred to as Multilateral
Trade Agreements, for brevity) as follows:
[6]
ANNEX 1
Annex 1A: Multilateral Agreement on Trade in Goods
General Agreement on Tariffs and Trade 1994
Agreement on Agriculture
Agreement on the Application of Sanitary and
Phytosanitary Measures
Agreement on Textiles and Clothing
Agreement on Technical Barriers to Trade
The Ministerial Decisions and Declarations are twenty-five declarations and decisions
on a wide range of matters, such as measures in favor of least developed countries,
notification procedures, relationship of WTO with the International Monetary Fund
(IMF), and agreements on technical barriers to trade and on dispute settlement.
The Understanding on Commitments in Financial Services dwell on, among other
things, standstill or limitations and qualifications of commitments to existing nonconforming measures, market access, national treatment, and definitions of nonresident supplier of financial services, commercial presence and new financial service.
On December 29, 1994, the present petition was filed. After careful deliberation on
respondents comment and petitioners reply thereto, the Court resolved on December
12, 1995, to give due course to the petition, and the parties thereafter filed their
respective memoranda. The Court also requested the Honorable Lilia R. Bautista, the
Philippine Ambassador to the United Nations stationed in Geneva, Switzerland, to
submit a paper, hereafter referred to as Bautista Paper, for brevity, (1) providing a
historical background of and (2) summarizing the said agreements.
[9]
During the Oral Argument held on August 27, 1996, the Court directed:
(a) the petitioners to submit the (1) Senate Committee Report on the matter in
controversy and (2) the transcript of proceedings/hearings in the Senate; and
(b) the Solicitor General, as counsel for respondents, to file (1) a list of Philippine
treaties signed prior to the Philippine adherence to the WTO Agreement, which
derogate from Philippine sovereignty and (2) copies of the multi-volume WTO
Agreement and other documents mentioned in the Final Act, as soon as possible.
After receipt of the foregoing documents, the Court said it would consider the case
submitted for resolution. In a Compliance dated September 16, 1996, the Solicitor
General submitted a printed copy of the 36-volume Uruguay Round of Multilateral Trade
Negotiations, and in another Compliance dated October 24, 1996, he listed the various
bilateral or multilateral treaties or international instruments involving derogation of
Philippine sovereignty. Petitioners, on the other hand, submitted their Compliance dated
January 28, 1997, on January 30, 1997.
The Issues
In their Memorandum dated March 11, 1996, petitioners summarized the issues as
follows:
1. Whether or not the provisions of the Agreement Establishing the World Trade
Organization and the Agreements and Associated Legal Instruments included in
Annexes one (1), two (2) and three (3) of that agreement cited by petitioners directly
contravene or undermine the letter, spirit and intent of Section 19, Article II and
Sections 10 and 12, Article XII of the 1987 Constitution.
2. Whether or not certain provisions of the Agreement unduly limit, restrict or impair
the exercise of legislative power by Congress.
3. Whether or not certain provisions of the Agreement impair the exercise of judicial
power by this Honorable Court in promulgating the rules of evidence.
4. Whether or not the concurrence of the Senate in the ratification by the President of
the Philippines of the Agreement establishing the World Trade Organization implied
rejection of the treaty embodied in the Final Act.
By raising and arguing only four issues against the seven presented by petitioners,
the Solicitor General has effectively ignored three, namely: (1) whether the petition
presents a political question or is otherwise not justiciable; (2) whether petitionermembers of the Senate (Wigberto E. Taada and Anna Dominique Coseteng) are
estopped from joining this suit; and (3) whether the respondent-members of the Senate
acted in grave abuse of discretion when they voted for concurrence in the ratification of
the WTO Agreement. The foregoing notwithstanding, this Court resolved to deal with
these three issues thus:
(1) The political question issue -- being very fundamental and vital, and being a
matter that probes into the very jurisdiction of this Court to hear and decide this case
-- was deliberated upon by the Court and will thus be ruled upon as the first issue;
(2) The matter of estoppel will not be taken up because this defense is waivable and
the respondents have effectively waived it by not pursuing it in any of their pleadings;
in any event, this issue, even if ruled in respondents favor, will not cause the petitions
dismissal as there are petitioners other than the two senators, who are not vulnerable
to the defense of estoppel; and
(3) The issue of alleged grave abuse of discretion on the part of the respondent
senators will be taken up as an integral part of the disposition of the four issues raised
by the Solicitor General.
During its deliberations on the case, the Court noted that the respondents did not
question the locus standi of petitioners. Hence, they are also deemed to have waived
the benefit of such issue. They probably realized that grave constitutional issues,
expenditures of public funds and serious international commitments of the nation are
involved here, and that transcendental public interest requires that the substantive
issues be met head on and decided on the merits, rather than skirted or deflected by
procedural matters.
[11]
DOES
THE
PETITION
PRESENT
A
JUSTICIABLE
CONTROVERSY? OTHERWISE STATED, DOES THE PETITION INVOLVE A
POLITICAL QUESTION OVER WHICH THIS COURT HAS NO JURISDICTION?
(2) DO THE PROVISIONS OF THE WTO AGREEMENT AND ITS THREE ANNEXES
CONTRAVENE SEC. 19, ARTICLE II, AND SECS. 10 AND 12, ARTICLE XII, OF
THE PHILIPPINE CONSTITUTION?
(3) DO THE PROVISIONS OF SAID AGREEMENT AND ITS ANNEXES LIMIT,
RESTRICT, OR IMPAIR THE EXERCISE OF LEGISLATIVE POWER BY
CONGRESS?
(4) DO SAID PROVISIONS UNDULY IMPAIR OR INTERFERE WITH THE EXERCISE
OF JUDICIAL POWER BY THIS COURT IN PROMULGATING RULES ON
EVIDENCE?
(5) WAS THE CONCURRENCE OF THE SENATE IN THE WTO AGREEMENT AND
ITS ANNEXES SUFFICIENT AND/OR VALID, CONSIDERING THAT IT DID NOT
INCLUDE THE FINAL ACT, MINISTERIAL DECLARATIONS AND DECISIONS,
AND THE UNDERSTANDING ON COMMITMENTS IN FINANCIAL SERVICES?
The First Issue: Does the Court Have Jurisdiction Over the Controversy?
In seeking to nullify an act of the Philippine Senate on the ground that it
contravenes the Constitution, the petition no doubt raises a justiciable
controversy. Where an action of the legislative branch is seriously alleged to have
infringed the Constitution, it becomes not only the right but in fact the duty of the
judiciary to settle the dispute. The question thus posed is judicial rather than
political. The duty (to adjudicate) remains to assure that the supremacy of the
Constitution is upheld. Once a controversy as to the application or interpretation of a
constitutional provision is raised before this Court (as in the instant case), it becomes a
legal issue which the Court is bound by constitutional mandate to decide.
[12]
[13]
The jurisdiction of this Court to adjudicate the matters raised in the petition is
clearly set out in the 1987 Constitution, as follows:
[14]
[15]
Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion amounting to lack or excess
of jurisdiction on the part of any branch or instrumentality of the government.
The foregoing text emphasizes the judicial departments duty and power to strike
down grave abuse of discretion on the part of any branch or instrumentality of
government including Congress. It is an innovation in our political law. As explained by
former Chief Justice Roberto Concepcion, the judiciary is the final arbiter on the
question of whether or not a branch of government or any of its officials has acted
[16]
[17]
As the petition alleges grave abuse of discretion and as there is no other plain,
speedy or adequate remedy in the ordinary course of law, we have no hesitation at all in
holding that this petition should be given due course and the vital questions raised
therein ruled upon under Rule 65 of the Rules of Court. Indeed, certiorari, prohibition
and mandamus are appropriate remedies to raise constitutional issues and to review
and/or prohibit/nullify, when proper, acts of legislative and executive officials. On this, we
have no equivocation.
We should stress that, in deciding to take jurisdiction over this petition, this Court
will not review the wisdom of the decision of the President and the Senate in enlisting
the country into the WTO, or pass upon the merits of trade liberalization as a policy
espoused by said international body. Neither will it rule on the propriety of the
governments economic policy of reducing/removing tariffs, taxes, subsidies, quantitative
restrictions, and other import/trade barriers. Rather, it will only exercise its constitutional
duty to determine whether or not there had been a grave abuse of discretion amounting
to lack or excess of jurisdiction on the part of the Senate in ratifying the WTO
Agreement and its three annexes.
Second Issue: The WTO Agreement and Economic Nationalism
This is the lis mota, the main issue, raised by the petition.
Petitioners vigorously argue that the letter, spirit and intent of the Constitution
mandating economic nationalism are violated by the so-called parity provisions and
national treatment clauses scattered in various parts not only of the WTO Agreement
and its annexes but also in the Ministerial Decisions and Declarations and in the
Understanding on Commitments in Financial Services.
Specifically, the flagship constitutional provisions referred to are Sec. 19, Article II,
and Secs. 10 and 12, Article XII, of the Constitution, which are worded as follows:
Article II
DECLARATION OF PRINCIPLES AND STATE POLICIES
xx xx xx xx
Sec. 19. The State shall develop a self-reliant and independent national economy
effectively controlled by Filipinos.
xx xx xx xx
Article XII
NATIONAL ECONOMY AND PATRIMONY
xx xx xx xx
Sec. 10. x x x. The Congress shall enact measures that will encourage the formation
and operation of enterprises whose capital is wholly owned by Filipinos.
In the grant of rights, privileges, and concessions covering the national economy and
patrimony, the State shall give preference to qualified Filipinos.
xx xx xx xx
Sec. 12. The State shall promote the preferential use of Filipino labor, domestic
materials and locally produced goods, and adopt measures that help make them
competitive.
Petitioners aver that these sacred constitutional principles are desecrated by the
following WTO provisions quoted in their memorandum:
[19]
ANNEX
Illustrative List
1. TRIMS that are inconsistent with the obligation of national treatment
provided for in paragraph 4 of Article III of GATT 1994 include those
which are mandatory or enforceable under domestic law or under
administrative rulings, or compliance with which is necessary to obtain an
advantage, and which require:
(a) the purchase or use by an enterprise of products of domestic origin or from
any domestic source, whether specified in terms of particular products, in
terms of volume or value of products, or in terms of proportion of volume
or value of its local production; or
(b) that an enterprises purchases or use of imported products be limited to an
amount related to the volume or value of local products that it exports.
2. TRIMS that are inconsistent with the obligations of general elimination of
quantitative restrictions provided for in paragraph 1 of Article XI of GATT
1994 include those which are mandatory or enforceable under domestic laws or
under administrative rulings, or compliance with which is necessary to obtain
an advantage, and which restrict:
(a) the importation by an enterprise of products used in or related to the local
production that it exports;
(b) the importation by an enterprise of products used in or related to its local
production by restricting its access to foreign exchange inflows attributable
to the enterprise; or
(c) the exportation or sale for export specified in terms of particular products,
in terms of volume or value of products, or in terms of a preparation of
volume or value of its local production. (Annex to the Agreement on TradeRelated Investment Measures, Vol. 27, Uruguay Round Legal Documents,
p.22125, emphasis supplied).
The paragraph 4 of Article III of GATT 1994 referred to is quoted as follows:
The products of the territory of any contracting party imported into the territory of any
other contracting party shall be accorded treatment no less favorable than that
accorded to like products of national origin in respect of laws, regulations and
requirements affecting their internal sale, offering for sale, purchase, transportation,
distribution or use. the provisions of this paragraph shall not prevent the application of
differential internal transportation charges which are based exclusively on the
economic operation of the means of transport and not on the nationality of the
product. (Article III, GATT 1947, as amended by the Protocol Modifying Part II, and
Article XXVI of GATT, 14 September 1948, 62 UMTS 82-84 in relation to paragraph
1(a) of the General Agreement on Tariffs and Trade 1994, Vol. 1, Uruguay Round,
Legal Instruments p.177, emphasis supplied).
b) In the area of trade related aspects of intellectual property rights (TRIPS, for
brevity):
Each Member shall accord to the nationals of other Members treatment no less
favourable than that it accords to its own nationals with regard to the protection of
intellectual property... (par. 1, Article 3, Agreement on Trade-Related Aspect of
Intellectual Property rights, Vol. 31, Uruguay Round, Legal Instruments, p.25432
(emphasis supplied)
(c) In the area of the General Agreement on Trade in Services:
National Treatment
1. In the sectors inscribed in its schedule, and subject to any conditions and
qualifications set out therein, each Member shall accord to services and
service suppliers of any other Member, in respect of all measures affecting
the supply of services, treatment no less favourable than it accords to its
own like services and service suppliers.
2. A Member may meet the requirement of paragraph I by according to
services and service suppliers of any other Member, either formally
identical treatment or formally different treatment to that it accords to its
own like services and service suppliers.
3. Formally identical or formally different treatment shall be considered to be
less favourable if it modifies the conditions of completion in favour of
services or service suppliers of the Member compared to like services or
service suppliers of any other Member. (Article XVII, General Agreement
on Trade in Services, Vol. 28, Uruguay Round Legal Instruments, p.22610
emphasis supplied).
It is petitioners position that the foregoing national treatment and parity provisions of
the WTO Agreement place nationals and products of member countries on the same
footing as Filipinos and local products, in contravention of the Filipino First policy of the
Constitution. They allegedly render meaningless the phrase effectively controlled by
Filipinos. The constitutional conflict becomes more manifest when viewed in the context
of the clear duty imposed on the Philippines as a WTO member to ensure the
conformity of its laws, regulations and administrative procedures with its obligations as
provided in the annexed agreements. Petitioners further argue that these provisions
contravene constitutional limitations on the role exports play in national development
and negate the preferential treatment accorded to Filipino labor, domestic materials and
locally produced goods.
[20]
On the other hand, respondents through the Solicitor General counter (1) that such
Charter provisions are not self-executing and merely set out general policies; (2) that
these nationalistic portions of the Constitution invoked by petitioners should not be read
in isolation but should be related to other relevant provisions of Art. XII, particularly
Secs. 1 and 13 thereof; (3) that read properly, the cited WTO clauses do not conflict with
the Constitution; and (4) that the WTO Agreement contains sufficient provisions to
protect developing countries like the Philippines from the harshness of sudden trade
liberalization.
We shall now discuss and rule on these arguments.
Declaration of Principles Not Self-Executing
By its very title, Article II of the Constitution is a declaration of principles and state
policies. The counterpart of this article in the 1935 Constitution is called the basic
political creed of the nation by Dean Vicente Sinco. These principles in Article II are
not intended to be self-executing principles ready for enforcement through the courts.
They are used by the judiciary as aids or as guides in the exercise of its power of
judicial review, and by the legislature in its enactment of laws. As held in the leading
case of Kilosbayan, Incorporated vs. Morato, the principles and state policies
enumerated in Article II and some sections of Article XII are not self-executing
provisions, the disregard of which can give rise to a cause of action in the courts.They
do not embody judicially enforceable constitutional rights but guidelines for legislation.
[21]
[22]
[23]
[24]
In the same light, we held in Basco vs. Pagcor that broad constitutional principles
need legislative enactments to implement them, thus:
[25]
My suggestion is simply that petitioners must, before the trial court, show a more
specific legal right -- a right cast in language of a significantly lower order of
generality than Article II (15) of the Constitution -- that is or may be violated by the
actions, or failures to act, imputed to the public respondent by petitioners so that the
trial court can validly render judgment granting all or part of the relief prayed for. To
my mind, the court should be understood as simply saying that such a more specific
legal right or rights may well exist in our corpus of law, considering the general policy
principles found in the Constitution and the existence of the Philippine Environment
Code, and that the trial court should have given petitioners an effective opportunity so
to demonstrate, instead of aborting the proceedings on a motion to dismiss.
It seems to me important that the legal right which is an essential component of a
cause of action be a specific, operable legal right, rather than a constitutional or
statutory policy, for at least two (2) reasons.One is that unless the legal right claimed
to have been violated or disregarded is given specification in operational terms,
defendants may well be unable to defend themselves intelligently and effectively; in
other words, there are due process dimensions to this matter.
The second is a broader-gauge consideration -- where a specific violation of law or
applicable regulation is not alleged or proved, petitioners can be expected to fall back
on the expanded conception of judicial power in the second paragraph of Section 1 of
Article VIII of the Constitution which reads:
Section 1. x x x
Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion amounting to lack or excess
Section 1. The goals of the national economy are a more equitable distribution of
opportunities, income, and wealth; a sustained increase in the amount of goods and
services produced by the nation for the benefit of the people; and an expanding
productivity as the key to raising the quality of life for all, especially the
underprivileged.
The State shall promote industrialization and full employment based on sound
agricultural development and agrarian reform, through industries that make full and
efficient use of human and natural resources, and which are competitive in both
domestic and foreign markets. However, the State shall protect Filipino enterprises
against unfair foreign competition and trade practices.
In the pursuit of these goals, all sectors of the economy and all regions of the country
shall be given optimum opportunity to develop. x x x
xxxxxxxxx
Sec. 13. The State shall pursue a trade policy that serves the general welfare and
utilizes all forms and arrangements of exchange on the basis of equality and
reciprocity.
As pointed out by the Solicitor General, Sec. 1 lays down the basic goals of national
economic development, as follows:
1. A more equitable distribution of opportunities, income and wealth;
2. A sustained increase in the amount of goods and services provided by the nation
for the benefit of the people; and
3. An expanding productivity as the key to raising the quality of life for all especially
the underprivileged.
With these goals in context, the Constitution then ordains the ideals of economic
nationalism (1) by expressing preference in favor of qualified Filipinos in the grant of
rights, privileges and concessions covering the national economy and patrimony and
in the use of Filipino labor, domestic materials and locally-produced goods; (2) by
mandating the State to adopt measures that help make them competitive; and (3) by
requiring the State to develop a self-reliant and independent national economy
effectively controlled by Filipinos. In similar language, the Constitution takes into
account the realities of the outside world as it requires the pursuit of a trade policy that
serves the general welfare and utilizes all forms and arrangements of exchange on the
basis of equality and reciprocity; and speaks of industries which are competitive in
both domestic and foreign markets as well as of the protection of Filipino enterprises
against unfair foreign competition and trade practices.
[27]
[28]
[29]
[30]
It is true that in the recent case of Manila Prince Hotel vs. Government Service
Insurance System, et al., this Court held that Sec. 10, second par., Art. XII of the 1987
Constitution is a mandatory, positive command which is complete in itself and which
needs no further guidelines or implementing laws or rules for its enforcement. From its
very words the provision does not require any legislation to put it in operation. It is per
se judicially enforceable. However, as the constitutional provision itself states, it is
enforceable only in regard to the grants of rights, privileges and concessions covering
national economy and patrimony and not to every aspect of trade and commerce. It
refers to exceptions rather than the rule. The issue here is not whether this paragraph of
Sec. 10 of Art. XII is self-executing or not. Rather, the issue is whether, as a rule, there
are enough balancing provisions in the Constitution to allow the Senate to ratify the
Philippine concurrence in the WTO Agreement. And we hold that there are.
[31]
All told, while the Constitution indeed mandates a bias in favor of Filipino goods,
services, labor and enterprises, at the same time, it recognizes the need for business
exchange with the rest of the world on the bases of equality and reciprocity and limits
protection of Filipino enterprises only against foreign competition and trade practices
that are unfair. In other words, the Constitution did not intend to pursue an isolationist
policy. It did not shut out foreign investments, goods and services in the development of
the Philippine economy. While the Constitution does not encourage the unlimited entry
of foreign goods, services and investments into the country, it does not prohibit them
[32]
either. In fact, it allows an exchange on the basis of equality and reciprocity, frowning
only on foreign competition that is unfair.
WTO Recognizes Need to Protect Weak Economies
Upon the other hand, respondents maintain that the WTO itself has some built-in
advantages to protect weak and developing economies, which comprise the vast
majority of its members. Unlike in the UN where major states have permanent seats and
veto powers in the Security Council, in the WTO, decisions are made on the basis of
sovereign equality, with each members vote equal in weight to that of any other. There
is no WTO equivalent of the UN Security Council.
[33]
Hence, poor countries can protect their common interests more effectively through
the WTO than through one-on-one negotiations with developed countries. Within the
WTO, developing countries can form powerful blocs to push their economic agenda
more decisively than outside the Organization. This is not merely a matter of practical
alliances but a negotiating strategy rooted in law. Thus, the basic principles underlying
the WTO Agreement recognize the need of developing countries like the Philippines to
share in the growth in international trade commensurate with the needs of their
economic development. These basic principles are found in the preamble of the WTO
Agreement as follows:
[34]
in the growth in international trade commensurate with the needs of their economic
development,
Being desirous of contributing to these objectives by entering into reciprocal and
mutually advantageous arrangements directed to the substantial reduction of tariffs
and other barriers to trade and to theelimination of discriminatory treatment in
international trade relations,
Resolved, therefore, to develop an integrated, more viable and durable multilateral
trading system encompassing the General Agreement on Tariffs and Trade, the results
of past trade liberalization efforts, and all of the results of the Uruguay Round of
Multilateral Trade Negotiations,
Determined to preserve the basic principles and to further the objectives underlying
this multilateral trading system, x x x. (underscoring supplied.)
Specific WTO Provisos Protect Developing Countries
So too, the Solicitor General points out that pursuant to and consistent with the
foregoing basic principles, the WTO Agreement grants developing countries a more
lenient treatment, giving their domestic industries some protection from the rush of
foreign competition. Thus, with respect to tariffs in general, preferential treatment is
given to developing countries in terms of the amount of tariff reduction and the period
within which the reduction is to be spread out. Specifically, GATT requires an average
tariff reduction rate of 36% for developed countries to be effected within a period of six
(6) years while developing countries -- including the Philippines -- are required to effect
an average tariff reduction of only 24% within ten (10) years.
In respect to domestic subsidy, GATT requires developed countries to reduce
domestic support to agricultural products by 20% over six (6) years, as compared
to only 13% for developing countries to be effected within ten (10) years.
In regard to export subsidy for agricultural products, GATT requires developed
countries to reduce their budgetary outlays for export subsidy by 36% and export
volumes receiving export subsidy by 21% within a period of six (6) years. For
developing countries, however, the reduction rate is only two-thirds of that prescribed for
developed countries and a longer period of ten (10) years within which to effect such
reduction.
Moreover, GATT itself has provided built-in protection from unfair foreign
competition and trade practices including anti-dumping measures, countervailing
measures and safeguards against import surges. Where local businesses are
jeopardized by unfair foreign competition, the Philippines can avail of these
measures. There is hardly therefore any basis for the statement that under the WTO,
local industries and enterprises will all be wiped out and that Filipinos will be deprived of
control of the economy. Quite the contrary, the weaker situations of developing nations
like the Philippines have been taken into account; thus, there would be no basis to say
that in joining the WTO, the respondents have gravely abused their discretion.True, they
have made a bold decision to steer the ship of state into the yet uncharted sea of
economic liberalization. But such decision cannot be set aside on the ground of grave
abuse of discretion, simply because we disagree with it or simply because we believe
only in other economic policies. As earlier stated, the Court in taking jurisdiction of this
case will not pass upon the advantages and disadvantages of trade liberalization as an
economic policy. It will only perform its constitutional duty of determining whether the
Senate committed grave abuse of discretion.
Constitution Does Not Rule Out Foreign Competition
Furthermore, the constitutional policy of a self-reliant and independent national
economy does not necessarily rule out the entry of foreign investments, goods and
services. It contemplates neither economic seclusion nor mendicancy in the
international community. As explained by Constitutional Commissioner Bernardo
Villegas, sponsor of this constitutional policy:
[35]
The WTO reliance on most favored nation, national treatment, and trade without
discrimination cannot be struck down as unconstitutional as in fact they are rules of
equality and reciprocity that apply to all WTO members. Aside from envisioning a trade
policy based on equality and reciprocity, the fundamental law encourages industries
that are competitive in both domestic and foreign markets, thereby demonstrating a
clear policy against a sheltered domestic trade environment, but one in favor of the
gradual development of robust industries that can compete with the best in the foreign
markets. Indeed, Filipino managers and Filipino enterprises have shown capability and
tenacity to compete internationally. And given a free trade environment, Filipino
entrepreneurs and managers in Hongkong have demonstrated the Filipino capacity to
grow and to prosper against the best offered under a policy of laissez faire.
[37]
should
be
pampered
with
a
total
proscription of foreign competition. On the other hand, respondents claim
that
WTO/GATT aims to make available to the Filipino consumer the best goods and
services obtainable anywhere in the world at the most reasonable prices. Consequently,
the question boils down to whether WTO/GATT will favor the general welfare of the
public at large.
Will adherence to the WTO treaty bring this ideal (of favoring the general welfare) to
reality?
Will WTO/GATT succeed in promoting the Filipinos general welfare because it will -as promised by its promoters -- expand the countrys exports and generate more
employment?
Will it bring more prosperity, employment, purchasing power and quality products at
the most reasonable rates to the Filipino public?
The responses to these questions involve judgment calls by our policy makers, for
which they are answerable to our people during appropriate electoral exercises. Such
questions and the answers thereto are not subject to judicial pronouncements based on
grave abuse of discretion.
Constitution Designed to Meet Future Events and Contingencies
No doubt, the WTO Agreement was not yet in existence when the Constitution was
drafted and ratified in 1987. That does not mean however that the Charter is necessarily
flawed in the sense that its framers might not have anticipated the advent of a
borderless world of business. By the same token, the United Nations was not yet in
existence when the 1935 Constitution became effective. Did that necessarily mean that
the then Constitution might not have contemplated a diminution of the absoluteness of
sovereignty when the Philippines signed the UN Charter, thereby effectively
surrendering part of its control over its foreign relations to the decisions of various UN
organs like the Security Council?
It is not difficult to answer this question. Constitutions are designed to meet not only
the vagaries of contemporary events. They should be interpreted to cover even future
and unknown circumstances. It is to the credit of its drafters that a Constitution can
withstand the assaults of bigots and infidels but at the same time bend with the
refreshing winds of change necessitated by unfolding events. As one eminent political
law writer and respected jurist explains:
[38]
The Constitution must be quintessential rather than superficial, the root and not the
blossom, the base and framework only of the edifice that is yet to rise. It is but the
core of the dream that must take shape, not in a twinkling by mandate of our
delegates, but slowly in the crucible of Filipino minds and hearts, where it will in time
develop its sinews and gradually gather its strength and finally achieve its
substance. In fine, the Constitution cannot, like the goddess Athena, rise full-grown
from the brow of the Constitutional Convention, nor can it conjure by mere fiat an
instant Utopia. It must grow with the society it seeks to re-structure and march apace
with the progress of the race, drawing from the vicissitudes of history the dynamism
and vitality that will keep it, far from becoming a petrified rule, a pulsing, living law
attuned to the heartbeat of the nation.
Third Issue: The WTO Agreement and Legislative Power
The WTO Agreement provides that (e)ach Member shall ensure the conformity of its
laws, regulations and administrative procedures with its obligations as provided in the
annexed Agreements. Petitioners maintain that this undertaking unduly limits, restricts
and impairs Philippine sovereignty, specifically the legislative power which under Sec. 2,
Article VI of the 1987 Philippine Constitution is vested in the Congress of the
Philippines. It is an assault on the sovereign powers of the Philippines because this
means that Congress could not pass legislation that will be good for our national interest
and general welfare if such legislation will not conform with the WTO Agreement, which
not only relates to the trade in goods x x x but also to the flow of investments and
money x x x as well as to a whole slew of agreements on socio-cultural matters x x x.
[39]
[40]
More specifically, petitioners claim that said WTO proviso derogates from the power
to tax, which is lodged in the Congress. And while the Constitution allows Congress to
authorize the President to fix tariff rates, import and export quotas, tonnage and
wharfage dues, and other duties or imposts, such authority is subject to specified limits
and x x x such limitations and restrictions as Congress may provide, as in fact it did
under Sec. 401 of the Tariff and Customs Code.
[41]
[42]
[44]
state which has contracted valid international obligations is bound to make in its
legislations such modifications as may be necessary to ensure the fulfillment of the
obligations undertaken.
[45]
[47]
obligations under any other international agreement, their obligation under the present
charter shall prevail, thus unquestionably denying the Philippines -- as a member -- the
sovereign power to make a choice as to which of conflicting obligations, if any, to honor.
Apart from the UN Treaty, the Philippines has entered into many other international
pacts -- both bilateral and multilateral -- that involve limitations on Philippine
sovereignty. These are enumerated by the Solicitor General in his Compliance dated
October 24, 1996, as follows:
(a) Bilateral convention with the United States regarding taxes on income, where
the Philippines agreed, among others, to exempt from tax, income received in
the Philippines by, among others, the Federal Reserve Bank of the United
States, the Export/Import Bank of the United States, the Overseas Private
Investment Corporation of the United States. Likewise, in said convention,
wages, salaries and similar remunerations paid by the United States to its
citizens for labor and personal services performed by them as employees or
officials of the United States are exempt from income tax by the Philippines.
(b) Bilateral agreement with Belgium, providing, among others, for the avoidance
of double taxation with respect to taxes on income.
(c) Bilateral convention with the Kingdom of Sweden for the avoidance of double
taxation.
(d) Bilateral convention with the French Republic for the avoidance of double
taxation.
(e) Bilateral air transport agreement with Korea where the Philippines agreed to
exempt from all customs duties, inspection fees and other duties or taxes
aircrafts of South Korea and the regular equipment, spare parts and supplies
arriving with said aircrafts.
(f) Bilateral air service agreement with Japan, where the Philippines agreed to
exempt from customs duties, excise taxes, inspection fees and other similar
duties, taxes or charges fuel, lubricating oils, spare parts, regular equipment,
stores on board Japanese aircrafts while on Philippine soil.
(g) Bilateral air service agreement with Belgium where the Philippines granted
Belgian air carriers the same privileges as those granted to Japanese and
Korean air carriers under separate air service agreements.
(h) Bilateral notes with Israel for the abolition of transit and visitor visas where
the Philippines exempted Israeli nationals from the requirement of obtaining
transit or visitor visas for a sojourn in the Philippines not exceeding 59 days.
(I) Bilateral agreement with France exempting French nationals from the
requirement of obtaining transit and visitor visa for a sojourn not exceeding 59
days.
(j) Multilateral Convention on Special Missions, where the Philippines agreed that
premises of Special Missions in the Philippines are inviolable and its agents
can not enter said premises without consent of the Head of Mission
concerned. Special Missions are also exempted from customs duties, taxes and
related charges.
(k) Multilateral Convention on the Law of Treaties. In this convention, the
Philippines agreed to be governed by the Vienna Convention on the Law of
Treaties.
(l) Declaration of the President of the Philippines accepting compulsory
jurisdiction of the International Court of Justice. The International Court of
Justice has jurisdiction in all legal disputes concerning the interpretation of a
treaty, any question of international law, the existence of any fact which, if
established, would constitute a breach of international obligation.
In the foregoing treaties, the Philippines has effectively agreed to limit the exercise
of its sovereign powers of taxation, eminent domain and police power. The underlying
consideration in this partial surrender of sovereignty is the reciprocal commitment of the
other contracting states in granting the same privilege and immunities to the Philippines,
its officials and its citizens. The same reciprocity characterizes the Philippine
commitments under WTO-GATT.
new trading relationship than in case of the larger country gaining enhanced success to
the smaller countrys market.
[48]
The point is that, as shown by the foregoing treaties, a portion of sovereignty may
be waived without violating the Constitution, based on the rationale that the Philippines
adopts the generally accepted principles of international law as part of the law of the
land and adheres to the policy of x x x cooperation and amity with all nations.
Fourth Issue: The WTO Agreement and Judicial Power
Petitioners aver that paragraph 1, Article 34 of the General Provisions and Basic
Principles of the Agreement on Trade-Related Aspects of Intellectual Property Rights
(TRIPS) intrudes on the power of the Supreme Court to promulgate rules concerning
pleading, practice and procedures.
[49]
[50]
To understand the scope and meaning of Article 34, TRIPS, it will be fruitful to
restate its full text as follows:
[51]
Article 34
Process Patents: Burden of Proof
1. For the purposes of civil proceedings in respect of the infringement of the rights
of the owner referred to in paragraph 1(b) of Article 28, if the subject matter of a
patent is a process for obtaining a product, the judicial authorities shall have the
authority to order the defendant to prove that the process to obtain an identical
product is different from the patented process. Therefore, Members shall provide,
in at least one of the following circumstances, that any identical product when
produced without the consent of the patent owner shall, in the absence of proof to
the contrary, be deemed to have been obtained by the patented process:
(a) if the product obtained by the patented process is new;
(b) if there is a substantial likelihood that the identical product was made by
the process and the owner of the patent has been unable through
reasonable efforts to determine the process actually used.
2. Any Member shall be free to provide that the burden of proof indicated in
paragraph 1 shall be on the alleged infringer only if the condition referred to in
subparagraph (a) is fulfilled or only if the condition referred to in subparagraph
(b) is fulfilled.
with due process and the concept of adversarial dispute settlement inherent in our
judicial system.
So too, since the Philippine is a signatory to most international conventions on
patents, trademarks and copyrights, the adjustment in legislation and rules of procedure
will not be substantial.
[52]
Fifth Issue: Concurrence Only in the WTO Agreement and Not in Other
Documents Contained in the Final Act
Petitioners allege that the Senate concurrence in the WTO Agreement and its
annexes -- but not in the other documents referred to in the Final Act, namely the
Ministerial Declaration and Decisions and the Understanding on Commitments in
Financial Services -- is defective and insufficient and thus constitutes abuse of
discretion. They submit that such concurrence in the WTO Agreement alone is flawed
because it is in effect a rejection of the Final Act, which in turn was the document signed
by Secretary Navarro, in representation of the Republic upon authority of the
President. They contend that the second letter of the President to the Senate which
enumerated what constitutes the Final Act should have been the subject of concurrence
of the Senate.
[53]
[55]
"(a) to submit, as appropriate, the WTO Agreement for the consideration of their
respective competent authorities with a view to seeking approval of the
Agreement in accordance with their procedures; and
(b) to adopt the Ministerial Declarations and Decisions."
The assailed Senate Resolution No. 97 expressed concurrence in exactly what the
Final Act required from its signatories, namely, concurrence of the Senate in the WTO
Agreement.
The Ministerial Declarations and Decisions were deemed adopted without need for
ratification. They were approved by the ministers by virtue of Article XXV: 1 of GATT
which provides that representatives of the members can meet to give effect to those
provisions of this Agreement which invoke joint action, and generally with a view to
facilitating the operation and furthering the objectives of this Agreement.
[56]
On the other hand, the WTO Agreement itself expresses what multilateral
agreements are deemed included as its integral parts, as follows:
[58]
Article II
Scope of the WTO
1. The WTO shall provide the common institutional framework for the conduct of
trade relations among its Members in matters to the agreements and associated
legal instruments included in the Annexes to this Agreement.
2. The Agreements and associated legal instruments included in Annexes 1, 2, and
3 (hereinafter referred to as Multilateral Agreements) are integral parts of this
Agreement, binding on all Members.
3. The Agreements and associated legal instruments included in Annex 4
(hereinafter referred to as Plurilateral Trade Agreements) are also part of this
Agreement for those Members that have accepted them, and are binding on those
Members. The Plurilateral Trade Agreements do not create either obligation or
rights for Members that have not accepted them.
4. The General Agreement on Tariffs and Trade 1994 as specified in annex 1A
(hereinafter referred to as GATT 1994) is legally distinct from the General
Agreement on Tariffs and Trade, dated 30 October 1947, annexed to the Final Act
adopted at the conclusion of the Second Session of the Preparatory Committee of
the United Nations Conference on Trade and Employment, as subsequently
rectified, amended or modified (hereinafter referred to as GATT 1947).
It should be added that the Senate was well-aware of what it was concurring in as
shown by the members deliberation on August 25, 1994. After reading the letter of
President Ramos dated August 11, 1994, the senators of the Republic minutely
dissected what the Senate was concurring in, as follows:
[59]
[60]
THE CHAIRMAN: Yes. Now, the question of the validity of the submission came up
in the first day hearing of this Committee yesterday. Was the observation made by
Senator Taada that what was submitted to the Senate was not the agreement on
establishing the World Trade Organization by the final act of the Uruguay Round
which is not the same as the agreement establishing the World Trade Organization?
And on that basis, Senator Tolentino raised a point of order which, however, he agreed
to withdraw upon understanding that his suggestion for an alternative solution at that
time was acceptable. That suggestion was to treat the proceedings of the Committee as
being in the nature of briefings for Senators until the question of the submission could
be clarified.
And so, Secretary Romulo, in effect, is the President submitting a new... is he making
a new submission which improves on the clarity of the first submission?
MR. ROMULO: Mr. Chairman, to make sure that it is clear cut and there should be no
misunderstanding, it was his intention to clarify all matters by giving this letter.
THE CHAIRMAN: Thank you.
Can this Committee hear from Senator Taada and later on Senator Tolentino since
they were the ones that raised this question yesterday?
Senator Taada, please.
SEN. TAADA: Thank you, Mr. Chairman.
Based on what Secretary Romulo has read, it would now clearly appear that what is
being submitted to the Senate for ratification is not the Final Act of the Uruguay
Round, but rather the Agreement on the World Trade Organization as well as the
Ministerial Declarations and Decisions, and the Understanding and Commitments in
Financial Services.
I am now satisfied with the wording of the new submission of President Ramos.
SEN. TAADA. . . . of President Ramos, Mr. Chairman.
THE CHAIRMAN. Thank you, Senator Taada. Can we hear from Senator
Tolentino? And after him Senator Neptali Gonzales and Senator Lina.
SEN TOLENTINO, Mr. Chairman, I have not seen the new submission actually
transmitted to us but I saw the draft of his earlier, and I think it now complies with the
provisions of the Constitution, and with the Final Act itself. The Constitution does not
require us to ratify the Final Act. It requires us to ratify the Agreement which is now
being submitted. The Final Act itself specifies what is going to be submitted to with
the governments of the participants.
In paragraph 2 of the Final Act, we read and I quote:
By signing the present Final Act, the representatives agree: (a) to submit as
appropriate the WTO Agreement for the consideration of the respective competent
authorities with a view to seeking approval of the Agreement in accordance with their
procedures.
In other words, it is not the Final Act that was agreed to be submitted to the
governments for ratification or acceptance as whatever their constitutional procedures
may provide but it is the World Trade Organization Agreement. And if that is the one
that is being submitted now, I think it satisfies both the Constitution and the Final Act
itself.
Thank you, Mr. Chairman.
THE CHAIRMAN. Thank you, Senator Tolentino, May I call on Senator Gonzales.
SEN. GONZALES. Mr. Chairman, my views on this matter are already a matter of
record. And they had been adequately reflected in the journal of yesterdays session
and I dont see any need for repeating the same.
Now, I would consider the new submission as an act ex abudante cautela.
THE CHAIRMAN. Thank you, Senator Gonzales. Senator Lina, do you want to make
any comment on this?
SEN. LINA. Mr. President, I agree with the observation just made by Senator
Gonzales out of the abundance of question. Then the new submission is, I believe,
stating the obvious and therefore I have no further comment to make.
Epilogue
In praying for the nullification of the Philippine ratification of the WTO Agreement,
petitioners are invoking this Courts constitutionally imposed duty to determine whether
or not there has been grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of the Senate in giving its concurrence therein via Senate
Resolution No. 97. Procedurally, a writ ofcertiorari grounded on grave abuse of
discretion may be issued by the Court under Rule 65 of the Rules of Court when it is
amply shown that petitioners have no other plain, speedy and adequate remedy in the
ordinary course of law.
By grave abuse of discretion is meant such capricious and whimsical exercise of
judgment as is equivalent to lack of jurisdiction. Mere abuse of discretion is not
enough. It must begrave abuse of discretion as when the power is exercised in an
arbitrary or despotic manner by reason of passion or personal hostility, and must be so
patent and so gross as to amount to an evasion of a positive duty or to a virtual refusal
to perform the duty enjoined or to act at all in contemplation of law. Failure on the part
of the petitioner to show grave abuse of discretion will result in the dismissal of the
petition.
[61]
[62]
[63]
In rendering this Decision, this Court never forgets that the Senate, whose act is
under review, is one of two sovereign houses of Congress and is thus entitled to great
respect in its actions. It is itself a constitutional body independent and coordinate, and
thus its actions are presumed regular and done in good faith. Unless convincing proof
and persuasive arguments are presented to overthrow such presumptions, this Court
will resolve every doubt in its favor. Using the foregoing well-accepted definition of grave
abuse of discretion and the presumption of regularity in the Senates processes, this
Court cannot find any cogent reason to impute grave abuse of discretion to the Senates
exercise of its power of concurrence in the WTO Agreement granted it by Sec. 21 of
Article VII of the Constitution.
[64]
viable is outside the realm of judicial inquiry and review. That is a matter between the
elected policy makers and the people. As to whether the nation should join the
worldwide march toward trade liberalization and economic globalization is a matter that
our people should determine in electing their policy makers. After all, the WTO
Agreement allows withdrawal of membership, should this be the political desire of a
member.
The eminent futurist John Naisbitt, author of the best seller Megatrends, predicts an
Asian Renaissance where the East will become the dominant region of the world
economically, politically and culturally in the next century. He refers to the free market
espoused by WTO as the catalyst in this coming Asian ascendancy. There are at
present about 31 countries including China, Russia and Saudi Arabia negotiating for
membership in the WTO. Notwithstanding objections against possible limitations on
national sovereignty, the WTO remains as the only viable structure for multilateral
trading and the veritable forum for the development of international trade law. The
alternative to WTO is isolation, stagnation, if not economic self-destruction. Duly
enriched with original membership, keenly aware of the advantages and disadvantages
of globalization with its on-line experience, and endowed with a vision of the future, the
Philippines now straddles the crossroads of an international strategy for economic
prosperity and stability in the new millennium. Let the people, through their duly
authorized elected officers, make their free choice.
[65]
In Annex A of her Memorandum, dated August 8, 1996, received by this Court on August 12, 1996,
Philippine Ambassador to the United Nations, World Trade Organization and other international
organizations Lilia R. Bautista (hereafter referred to as Bautista Paper) submitted a 46-year Chronology of
GATT as follows:
[1]
1947 The birth of GATT. On 30 October 1947, the General Agreement on Tariffs and
Trade (GATT) was signed by 23 nations at the Palais des Nations in
Geneva. The Agreement contained tariff concessions agreed to in the first
multilateral trade negotiations and a set of rules designed to prevent these
concessions from being frustrated by restrictive trade measures.
The 23 founding contracting parties were members of the Preparatory Committee
established by the United Nations Economic and Social Council in 1946 to draft
the charter of the International Trade Organization (ITO). The ITO was envisaged
as the final leg of a triad of post-War economic agencies (the other two were the
International Monetary Fund and the International Bank for Reconstruction - later
the World Bank).
In parallel with this task, the Committee members decided to negotiate tariff concessions
among themselves. From April to October 1947, the participants completed some
1961 The Short-Term Arrangement covering cotton textiles was agreed as an exception
to the GATT rules. The arrangement permitted the negotiation of quota
restrictions affecting the exports of cotton-producing countries. In 1962 the "Short
Term " Arrangement become the "Long term" Arrangement, lasting until 1974
when the Multifibre Arrangement entered into force.
1964 The Kennedy Round. Meeting at Ministerial Level, a Trade Negotiations
Committee formally opened the Kennedy Round in May. In June 1967, the
Round's Final Act was signed by some 50 participating countries which together
accounted for 75 per cent of world trade. For the first time, negotiation departed
from product-by-product approach used in the previous Rounds to an across-theboard or linear method of cutting tariffs for industrial goods. The working
hypothesis of a 50 per cent target cut in tariff levels was achieved in many
areas. Concessions covered an estimated total value of trade of about $40
billion. Separate agreements were reached on grains, chemical products and a
Code on Anti-Dumping.
1965 A New Chapter. The early 1960s marked the accession to the General Agreement
of many newly-independent developing countries. In February, the Contracting
Parties, meeting in a special session, adopted the text of Part IV on Trade and
Development. The additional chapter to the GATT required developed countries
to accord high priority to the reduction of trade barriers to products of developing
countries. A committee on Trade and Development was established to oversee
the functioning of the new GATT provisions. In the preceding year, GATT had
established the International Trade Center (ITC) to help developing countries in
trade promotion and identification of potential markets. Since 1968, the ITC had
been jointly operated by GATT and the UN Conference on Trade and
Development (UNCTAD).
1973 The Tokyo Round. The seventh Round was launched by Ministers in September at
the Japanese capital. Some 99 countries participated in negotiating a
comprehensive body of agreements covering both tariff and non-tariff matters. At
the end of the Round in November 1979, participants exchange tariff reduction
and bindings which covered more than $300 billion of trade. As a result of these
cuts, the weighted average tariff on manufactured goods in the world's nine major
Industrial Markets declined from 7.0 to 4.7 per cent. Agreements were reached in
the following areas; subsidies and countervailing measures, technical barriers to
trade, import licensing procedures, government procurement, customs valuation,
a revised anti-dumping code, trade in bovine meat, trade in daily products and
trade in civil aircraft. The first concrete result of the Round was the reduction of
import duties and other trade barriers by industrial countries on tropical products
exported by developing countries.
1974 On 1 January 1974, the Arrangement Regarding International Trade in textiles,
otherwise known as the Multifibre Arrangement (MFA), entered into force. Its
superseded the arrangement that had been governing trade in cotton textiles
since 1961. The MFA seeks to promote the expansion and progressive
liberalization of trade in textile product while at the same time avoiding disruptive
effects in individual markets in lines of production. The MFA was extended in
1978, 1982, 1986, 1991 and 1992. MFA members account for most of the world
exports of textiles and clothing which in 1986 amounted to US$128 billion.
1982 Ministerial Meeting. Meeting for the first time in nearly ten years, the GATT
Ministers in November at Geneva reaffirmed the validity of GATT rules for the
conduct of international trade and committed themselves to combating
protectionist pressures. They also established a wide-ranging work programme
for the GATT which was to laid down the ground work for a new Round.
1986 The Uruguay Round. The GATT Trade Ministers meeting at Punta del
The Final Act was signed by representatives of 125 entities, namely Algeria, Angola, Antigua and
Barbuda, Argentine Republic, Australia, Republic of Austria, State of Bahrain, Peoples Republic of
Bangladesh, Barbados, The Kingdom of Belgium, Belize, Republic of Benin, Bolivia, Botswana,
Brazil, Brunei Darussalam, Burkina Faso, Burundi, Cameroon, Canada, Central African Republic,
Chad, Chile, Peoples Republic of China, Colombia, Congo, Costa Rica, Republic of Cote dIvoire,
Cuba, Cyprus, Czech Republic, Kingdom of Denmark, Commonwealth of Dominica, Dominican
Republic, Arab Republic of Egypt, El Salvador, European Communities, Republic of Fiji, Finland,
French Republic, Gabonese Republic, Gambia, Federal Republic of Germany, Ghana, Hellenic
Republic, Grenada, Guatemala, Republic of Guinea-Bissau, Republic of Guyana, Haiti,
Honduras, Hong Kong, Hungary, Iceland, India, Indonesia, Ireland, State of Israel, Italian
Republic, Jamaica, Japan, Kenya, Korea, State of Kuwait, Kingdom of Lesotho, Principality of
Liechtenstein, Grand Duchy of Luxembourg, Macau, Republic of Madagascar, Republic of
Malawi, Malaysia, Republic of Maldives, Republic of Mali, Republic of Malta, Islamic Republic of
Mauritania, Republic of Mauritius, United Mexican States, Kingdom of Morocco, Republic of
Mozambique, Union of Myanmar, Republic of Namibia, Kingdom of the Netherlands, New
Zealand, Nicaragua, Republic of Niger, Federal Republic of Nigeria, Kingdom of Norway, Islamic
Republic of Pakistan, Paraguay, Peru, Philippines, Poland, Portuguese Republic, State of Qatar,
Romania, Rwandese Republic, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the
Grenadines, Senegal, Sierra Leone, Singapore, Slovak Republic, South Africa, Kingdom of Spain,
Democratic Socialist Republic of Sri Lanka, Republic of Surinam, Kingdom of Swaziland,
Kingdom of Sweden, Swiss Confederation, United Republic of Tanzania, Kingdom of Thailand,
Togolese Republic, Republic of Trinidad and Tobago, Tunisia, Turkey, Uganda, United Arab
Emirates, United Kingdom of Great Britain and Northern Ireland, United States of America,
Eastern Republic of Uruguay, Venezuela, Republic of Zaire, Republic of Zambia, Republic of
Zimbabwe; see pp. 6-25, Vol. 1, Uruguay Round of Multilateral Trade Negotiations.
[3]
11 August 1994
I have the honor to forward herewith an authenticated copy of the Uruguay Round Final Act signed by
Department of Trade and Industry Secretary Rizalino S. Navarro for the Philippines on 15 April
1994 in Marrakesh, Morocco.
The Uruguay Round Final Act aims to liberalize and expand world trade and strengthen the
interrelationship between trade and economic policies affecting growth and development.
The Final Act will improve Philippine access to foreign markets, especially its major trading partners
through the reduction of tariffs on its exports particularly agricultural and industrial
products. These concessions may be availed of by the Philippines, only if it is a member of the
World Trade Organization. By GATT estimates, the Philippines can acquire additional export
revenues from $2.2 to $2.7 Billion annually under Uruguay Round. This will be on top of the
normal increase in exports that the Philippines may experience.
The Final Act will also open up new opportunities for the services sector in such areas as the movement
of personnel, (e.g. professional services and construction services), cross-border supply (e.g.
computer-related services), consumption abroad (e.g. tourism, convention services, etc.) and
commercial presence.
The clarified and improved rules and disciplines on anti-dumping and countervailing measures will also
benefit Philippine exporters by reducing the costs and uncertainty associated with exporting while
at the same time providing a means for domestic industries to safeguard themselves against
unfair imports.
Likewise, the provision of adequate protection for intellectual property rights is expected to attract more
investments into the country and to make it less vulnerable to unilateral actions by its trading
partners (e.g. Sec. 301 of the United States Omnibus Trade Law).
In view of the foregoing, the Uruguay Round Final Act is hereby submitted to the Senate for its
concurrence pursuant to Section 21, Article VII of the Constitution.
A draft of a proposed Resolution giving its concurrence to the aforesaid Agreement is enclosed.
Very truly yours,
(SGD.) FIDEL V. RAMOS
[4]
11 August 1994
December 9, 1994
[6]
Attached as Annex A, Petition; rollo, p. 52. P.S. 1083 is the forerunner of assailed Senate Resolution
No. 97. It was prepared by the Committee of the Whole on the General Agreement on Tariffs and
Trade chaired by Sen. Blas F. Ople and co-chaired by Sen. Gloria Macapagal-Arroyo; see Annex
C, Compliance of petitioners dated January 28, 1997.
[7]
The Philippines is thus considered an original or founding member of WTO, which as of July 26, 1996
had 123 members as follows: Antigua and Barbuda, Argentina, Australia, Austria, Bahrain,
Bangladesh, Barbados, Belgium, Belize, Benin, Bolivia, Botswana, Brazil, Brunei Darussalam,
Burkina Faso, Burundi, Cameroon, Canada, Central African Republic, Chili, Colombia, Costa
Rica, Cote dIvoire, Cuba, Cyprus, Czech Republic, Denmark, Djibouti, Dominica, Dominican
Republic, Ecuador, Egypt, El Salvador, European Community, Fiji, Finland, France, Gabon,
Germany, Ghana, Greece, Grenada, Guatemala, Guinea, Guinea Bissau, Guyana, Haiti,
Honduras, Hongkong, Hungary, Iceland, India, Indonesia, Ireland, Israel, Italy, Jamaica, Japan,
Kenya, Korea, Kuwait, Lesotho, Liechtenstein, Luxembourg, Macau, Madagascar, Malawi,
Malaysia, Maldives, Mali, Malta, Mauritania, Mauritius, Mexico, Morocco, Mozambique, Myanmar,
Namibia, Netherlands -- for the Kingdom in Europe and for the Netherlands Antilles, New
Zealand, Nicaragua, Nigeria, Norway, Pakistan, Papua New Guinea, Paraguay, Peru, Philippines,
Poland, Portugal, Qatar, Romania, Rwanda, Saint Kitts and Nevis, Saint Lucia, Saint Vincent &
the Grenadines, Senegal, Sierra Leone, Singapore, Slovak Republic, Slovenia, Solomon Islands,
South Africa, Spain, Sri Lanka, Surinam, Swaziland, Sweden, Switzerland, Tanzania, Thailand,
Togo, Trinidad and Tobago, Tunisia, Turkey, Uganda, United Arab Emirates, United Kingdom,
United States, Uruguay, Venezuela, Zambia, and Zimbabwe. See Annex A, Bautista Paper, infra.
[8]
[9]
In compliance, Ambassador Bautista submitted to the Court on August 12, 1996, a Memorandum (the
Bautista Paper) consisting of 56 pages excluding annexes. This is the same document mentioned
in footnote no. 1.
[10]
[11]
Cf. Kilosbayan, Incorporated vs. Morato, 246 SCRA 540, July 17, 1995 for a discussion on locus
standi. See also the Concurring Opinion of Mr. Justice Vicente V. Mendoza in Tatad vs. Garcia,
Jr., 243 SCRA 473, April 6, 1995, as well as Kilusang Mayo Uno Labor Center vs. Garcia, Jr., 239
SCRA 386, 414, December 23, 1994.
[12]
Aquino, Jr. vs. Ponce Enrile, 59 SCRA 183, 196, September 17, 1974, cited in Bondoc vs. Pineda, 201
SCRA 792, 795, September 26, 1991.
[13]
Guingona, Jr. vs. Gonzales, 219 SCRA 326, 337, March 1, 1993.
[14]
See Tanada and Macapagal vs. Cuenco, et al., 103 Phil. 1051 for a discussion on the scope of political
question.
[15]
[16]
In a privilege speech on May 17, 1993, entitled Supreme Court -- Potential Tyrant? Senator Arturo
Tolentino concedes that this new provision gives the Supreme Court a duty to intrude into the
jurisdiction of the Congress or the President.
[17]
[18]
Cf. Daza vs. Singson, 180 SCRA 496, December 21, 1989.
[19]
[20]
Par. 4, Article XVI, WTO Agreement, Uruguay Round of Multilateral Trade Negotiations, Vol. 1, p. 146.
[21]
Also entitled Declaration of Principles. The nomenclature in the 1973 Charter is identical with that in the
1987s.
[22]
[23]
Bernas, The Constitution of the Philippines: A Commentary, Vol. II, 1988 Ed., p. 2. In the very recent
case of Manila Prince Hotel vs. GSIS, G.R. No. 122156, February 3, 1997, p. 8, it was held that A
provision which lays down a general principle, such as those found in Art. II of the 1987
Constitution, is usually not self-executing.
[24]
246 SCRA 540, 564, July 17, 1995. See also Tolentino vs. Secretary of Finance, G.R. No. 115455 and
consolidated cases, August 25, 1995.
[25]
[26]
[27]
[28]
[29]
[30]
[31]
[32]
[33]
[34]
[35]
[36]
[37]
[38]
Justice Isagani A. Cruz, Philippine Political Law, 1995 Ed., p. 13, quoting his own article entitled, A
Quintessential Constitution earlier published in the San Beda Law Journal, April 1972;
underscoring supplied.
[39]
Par. 4, Article XVI (Miscellaneous Provisions), WTO Agreement, p.146, Vol. 1, Uruguay Round of
Multilateral Trade Negotiations.
[40]
[41]
[42]
[43]
[44]
[45]
[46]
[47]
Quoted in Paras and Paras, Jr., International Law and World Politics, 1994 Ed., p. 178.
47-A
Vol.
1, Uruguay
Round
of
Multilateral
Trade
Reagan vs. Commission of Internal Revenue, 30 SCRA 968, 973, December 27, 1969.
[48]
Trebilcock and Howse. The Regulation of International Trade, p. 14, London, 1995, cited on p. 55-56,
Bautista Paper.
[49]
[50]
[51]
[52]
[53]
[54]
[55]
The full text, without the signatures, of the Final Act is as follows:
[57]
[58]
[59]
[60]
[61]
[62]
San Sebastian College vs. Court of Appeals, 197 SCRA 138, 144, May 15, 1991; Commissioner of
Internal Revenue vs. Court of Tax Appeals, 195 SCRA 444, 458 March 20, 1991; Simon vs. Civil
Service Commission, 215 SCRA 410, November 5, 1992; Bustamante vs. Commissioner on
Audit, 216 SCRA 134, 136, November 27, 1992.
[63]
Paredes vs. Civil Service Commission, 192 SCRA 84, 94, December 4, 1990.
[64]
Sec. 21. No treaty or international agreement shall be valid and effective unless concurred in by at least
two-thirds of all the Members of the Senate.
[65]
Case 6
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 206510
MOST REV. PEDRO D. ARIGO, Vicar Apostolic of Puerto Princesa D.D.; MOST REV.
DEOGRACIAS S. INIGUEZ, JR., Bishop-Emeritus of Caloocan, FRANCES Q. QUIMPO,
CLEMENTE G. BAUTISTA, JR., Kalikasan-PNE, MARIA CAROLINA P. ARAULLO, RENATO M.
REYES, JR., Bagong Alyansang Makabayan, HON. NERI JAVIER COLMENARES, Bayan Muna
Partylist, ROLAND G. SIMBULAN, PH.D., Junk VF A Movement, TERESITA R. PEREZ, PH.D.,
HON. RAYMOND V. PALATINO, Kabataan Party-list, PETER SJ. GONZALES, Pamalakaya,
GIOVANNI A. TAPANG, PH. D., Agham, ELMER C. LABOG, Kilusang Mayo Uno, JOAN MAY E.
SALVADOR, Gabriela, JOSE ENRIQUE A. AFRICA, THERESA A. CONCEPCION, MARY JOAN
A. GUAN, NESTOR T. BAGUINON, PH.D., A. EDSEL F. TUPAZ, Petitioners,
vs.
SCOTT H. SWIFT in his capacity as Commander of the US. 7th Fleet, MARK A. RICE in his
capacity as Commanding Officer of the USS Guardian, PRESIDENT BENIGNO S. AQUINO III in
his capacity as Commander-in-Chief of the Armed Forces of the Philippines, HON. ALBERT F.
DEL ROSARIO, Secretary, pepartment of Foreign Affair.s, HON. PAQUITO OCHOA, JR.,
Executiv~.:Secretary, Office of the President, . HON. VOLTAIRE T. GAZMIN, Secretary,
Department of National Defense, HON. RAMON JESUS P. P AJE, Secretary, Department of
Environment and Natural Resoz!rces, VICE ADMIRAL JOSE LUIS M. ALANO, Philippine Navy
Flag Officer in Command, Armed Forces of the Philippines, ADMIRAL RODOLFO D. ISO
RENA, Commandant, Philippine Coast Guard, COMMODORE ENRICO EFREN EVANGELISTA,
Philippine Coast Guard Palawan, MAJOR GEN. VIRGILIO 0. DOMINGO, Commandant of
Armed Forces of the Philippines Command and LT. GEN. TERRY G. ROBLING, US Marine
Corps Forces. Pacific and Balikatan 2013 Exercise Co-Director, Respondents.
DECISION
VILLARAMA, JR, J.:
Before us is a petition for the issuance of a Writ of Kalikasan with prayer for the issuance of a
Temporary Environmental Protection Order (TEPO) under Rule 7 of A.M. No. 09-6-8-SC, otherwise
known as the Rules of Procedure for Environmental Cases (Rules), involving violations of
environmental laws and regulations in relation to the grounding of the US military ship USS Guardian
over the Tubbataha Reefs.
Factual Background
The name "Tubbataha" came from the Samal (seafaring people of southern Philippines) language
which means "long reef exposed at low tide." Tubbataha is composed of two huge coral atolls - the
north atoll and the south atoll - and the Jessie Beazley Reef, a smaller coral structure about 20
kilometers north of the atolls. The reefs of Tubbataha and Jessie Beazley are considered part of
Cagayancillo, a remote island municipality of Palawan.
1
In 1988, Tubbataha was declared a National Marine Park by virtue of Proclamation No. 306 issued
by President Corazon C. Aquino on August 11, 1988. Located in the middle of Central Sulu Sea, 150
kilometers southeast of Puerto Princesa City, Tubbataha lies at the heart of the Coral Triangle, the
global center of marine biodiversity.
In 1993, Tubbataha was inscribed by the United Nations Educational Scientific and Cultural
Organization (UNESCO) as a World Heritage Site. It was recognized as one of the Philippines'
oldest ecosystems, containing excellent examples of pristine reefs and a high diversity of marine life.
The 97,030-hectare protected marine park is also an important habitat for internationally threatened
and endangered marine species. UNESCO cited Tubbataha's outstanding universal value as an
important and significant natural habitat for in situ conservation of biological diversity; an example
representing significant on-going ecological and biological processes; and an area of exceptional
natural beauty and aesthetic importance.
2
On April 6, 2010, Congress passed Republic Act (R.A.) No. 10067, otherwise known as the
"Tubbataha Reefs Natural Park (TRNP) Act of 2009" "to ensure the protection and conservation of
the globally significant economic, biological, sociocultural, educational and scientific values of the
Tubbataha Reefs into perpetuity for the enjoyment of present and future generations." Under the
"no-take" policy, entry into the waters of TRNP is strictly regulated and many human activities are
prohibited and penalized or fined, including fishing, gathering, destroying and disturbing the
resources within the TRNP. The law likewise created the Tubbataha Protected Area Management
Board (TPAMB) which shall be the sole policy-making and permit-granting body of the TRNP.
3
The USS Guardian is an Avenger-class mine countermeasures ship of the US Navy. In December
2012, the US Embassy in the Philippines requested diplomatic clearance for the said vessel "to enter
and exit the territorial waters of the Philippines and to arrive at the port of Subic Bay for the purpose
of routine ship replenishment, maintenance, and crew liberty." On January 6, 2013, the ship left
Sasebo, Japan for Subic Bay, arriving on January 13, 2013 after a brief stop for fuel in Okinawa,
Japan.
4
1wphi1
On January 15, 2013, the USS Guardian departed Subic Bay for its next port of call in Makassar,
Indonesia. On January 17, 2013 at 2:20 a.m. while transiting the Sulu Sea, the ship ran aground on
the northwest side of South Shoal of the Tubbataha Reefs, about 80 miles east-southeast of
Palawan. No cine was injured in the incident, and there have been no reports of leaking fuel or oil.
On January 20, 2013, U.S. 7th Fleet Commander, Vice Admiral Scott Swift, expressed regret for the
incident in a press statement. Likewise, US Ambassador to the Philippines Harry K. Thomas, Jr., in
a meeting at the Department of Foreign Affairs (DFA) on February 4, "reiterated his regrets over the
grounding incident and assured Foreign Affairs Secretazy Albert F. del Rosario that the United States
will provide appropriate compensation for damage to the reef caused by the ship." By March 30,
2013, the US Navy-led salvage team had finished removing the last piece of the grounded ship from
the coral reef.
5
On April 1 7, 2013, the above-named petitioners on their behalf and in representation of their
respective sector/organization and others, including minors or generations yet unborn, filed the
present petition agairtst Scott H. Swift in his capacity as Commander of the US 7th Fleet, Mark A.
Rice in his capacity as Commanding Officer of the USS Guardian and Lt. Gen. Terry G. Robling, US
Marine Corps Forces, Pacific and Balikatan 2013 Exercises Co-Director ("US respondents");
President Benigno S. Aquino III in his capacity as Commander-in-Chief of the Armed Forces of the
Philippines (AFP), DF A Secretary Albert F. Del Rosario, Executive Secretary Paquito Ochoa, Jr.,
Secretary Voltaire T. Gazmin (Department of National Defense), Secretary Jesus P. Paje
(Department of Environment and Natural Resources), Vice-Admiral Jose Luis M. Alano (Philippine
Navy Flag Officer in Command, AFP), Admiral Rodolfo D. Isorena (Philippine Coast Guard
Commandant), Commodore Enrico Efren Evangelista (Philippine Coast Guard-Palawan), and Major
General Virgilio 0. Domingo (AFP Commandant), collectively the "Philippine respondents."
The Petition
Petitioners claim that the grounding, salvaging and post-salvaging operations of the USS Guardian
cause and continue to cause environmental damage of such magnitude as to affect the provinces of
Palawan, Antique, Aklan, Guimaras, Iloilo, Negros Occidental, Negros Oriental, Zamboanga del
Norte, Basilan, Sulu, and Tawi-Tawi, which events violate their constitutional rights to a balanced and
healthful ecology. They also seek a directive from this Court for the institution of civil, administrative
and criminal suits for acts committed in violation of environmental laws and regulations in connection
with the grounding incident.
Specifically, petitioners cite the following violations committed by US respondents under R.A. No.
10067: unauthorized entry (Section 19); non-payment of conservation fees (Section 21 ); obstruction
of law enforcement officer (Section 30); damages to the reef (Section 20); and destroying and
disturbing resources (Section 26[g]). Furthermore, petitioners assail certain provisions of the Visiting
Forces Agreement (VFA) which they want this Court to nullify for being unconstitutional.
The numerous reliefs sought in this case are set forth in the final prayer of the petition, to wit:
WHEREFORE, in view of the foregoing, Petitioners respectfully pray that the Honorable Court: 1.
Immediately issue upon the filing of this petition a Temporary Environmental Protection Order
(TEPO) and/or a Writ of Kalikasan, which shall, in particular,
a. Order Respondents and any person acting on their behalf, to cease and desist all
operations over the Guardian grounding incident;
b. Initially demarcating the metes and bounds of the damaged area as well as an additional
buffer zone;
c. Order Respondents to stop all port calls and war games under 'Balikatan' because of the
absence of clear guidelines, duties, and liability schemes for breaches of those duties, and
require Respondents to assume responsibility for prior and future environmental damage in
general, and environmental damage under the Visiting Forces Agreement in particular.
d. Temporarily define and describe allowable activities of ecotourism, diving, recreation, and
limited commercial activities by fisherfolk and indigenous communities near or around the
TRNP but away from the damaged site and an additional buffer zone;
2. After summary hearing, issue a Resolution extending the TEPO until further orders of the
Court;
3. After due proceedings, render a Decision which shall include, without limitation:
a. Order Respondents Secretary of Foreign Affairs, following the dispositive portion of
Nicolas v. Romulo, "to forthwith negotiate with the United States representatives for the
appropriate agreement on [environmental guidelines and environmental accountability] under
Philippine authorities as provided in Art. V[] of the VFA ... "
o. Declare the grant of immunity found in Article V ("Criminal Jurisdiction") and Article VI of
the Visiting Forces Agreement unconstitutional for violating equal protection and/or for
violating the preemptory norm of nondiscrimination incorporated as part of the law of the land
under Section 2, Article II, of the Philippine Constitution;
p. Allow for continuing discovery measures;
q. Supervise marine wildlife rehabilitation in the Tubbataha Reefs in all other respects; and
4. Provide just and equitable environmental rehabilitation measures and such other reliefs as
are just and equitable under the premises. (Underscoring supplied.)
7
Since only the Philippine respondents filed their comment to the petition, petitioners also filed a
motion for early resolution and motion to proceed ex parte against the US respondents.
8
11
12
In the landmark case of Oposa v. Factoran, Jr., we recognized the "public right" of citizens to "a
balanced and healthful ecology which, for the first time in our constitutional history, is solemnly
incorporated in the fundamental law." We declared that the right to a balanced and healthful ecology
need not be written in the Constitution for it is assumed, like other civil and polittcal rights
guaranteed in the Bill of Rights, to exist from the inception of mankind and it is an issue of
transcendental importance with intergenerational implications. Such right carries with it the
correlative duty to refrain from impairing the environment.
13
1wphi1
14
On the novel element in the class suit filed by the petitioners minors in Oposa, this Court ruled that
not only do ordinary citizens have legal standing to sue for the enforcement of environmental rights,
they can do so in representation of their own and future generations. Thus:
Petitioners minors assert that they represent their generation as well as generations yet unborn. We
find no difficulty in ruling that they can, for themselves, for others of their generation and for the
succeeding generations, file a class suit. Their personality to sue in behalf of the succeeding
generations can only be based on the concept of intergenerational responsibility insofar as the right
to a balanced and healthful ecology is concerned. Such a right, as hereinafter expounded, considers
the "rhythm and harmony of nature." Nature means the created world in its entirety. Such rhythm and
harmony indispensably include, inter alia, the judicious disposition, utilization, management, renewal
and conservation of the country's forest, mineral, land, waters, fisheries, wildlife, off-shore areas and
other natural resources to the end that their exploration, development and utilization be equitably
accessible to the present a:: well as future generations. Needless to say, every generation has a
responsibility to the next to preserve that rhythm and harmony for the full 1:njoyment of a balanced
and healthful ecology. Put a little differently, the minors' assertion of their right to a sound
environment constitutes, at the same time, the performance of their obligation to ensure the
protection of that right for the generations to come. (Emphasis supplied.)
15
The liberalization of standing first enunciated in Oposa, insofar as it refers to minors and generations
yet unborn, is now enshrined in the Rules which allows the filing of a citizen suit in environmental
cases. The provision on citizen suits in the Rules "collapses the traditional rule on personal and
direct interest, on the principle that humans are stewards of nature."
16
Having settled the issue of locus standi, we shall address the more fundamental question of whether
this Court has jurisdiction over the US respondents who did not submit any pleading or manifestation
in this case.
The immunity of the State from suit, known also as the doctrine of sovereign immunity or nonsuability of the State, is expressly provided in Article XVI of the 1987 Constitution which states:
17
The rule that a state may not be sued without its consent, now expressed in Article XVI, Section 3,
of the 1987 Constitution, is one of the generally accepted principles of international law that we have
adopted as part of the law of our land under Article II, Section 2. x x x.
Even without such affirmation, we would still be bound by the generally accepted principles of
international law under the doctrine of incorporation. Under this doctrine, as accepted by the majority
of states, such principles are deemed incorporated in the law of every civilized state as a condition
and consequence of its membership in the society of nations. Upon its admission to such society,
the state is automatically obligated to comply with these principles in its relations with other states.
As applied to the local state, the doctrine of state immunity is based on the justification given by
Justice Holmes that ''there can be no legal right against the authority which makes the law on which
the right depends." [Kawanakoa v. Polybank, 205 U.S. 349] There are other practical reasons for the
enforcement of the doctrine. In the case of the foreign state sought to be impleaded in the local
jurisdiction, the added inhibition is expressed in the maxim par in parem, non habet imperium. All
states are sovereign equals and cannot assert jurisdiction over one another. A contrary disposition
would, in the language of a celebrated case, "unduly vex the peace of nations." [De Haber v. Queen
of Portugal, 17 Q. B. 171]
While the doctrine appears to prohibit only suits against the state without its consent, it is also
applicable to complaints filed against officials of the state for acts allegedly performed by them in the
discharge of their duties. The rule is that if the judgment against such officials will require the state
itself to perform an affirmative act to satisfy the same,. such as the appropriation of the amount
needed to pay the damages awarded against them, the suit must be regarded as against the state
itself although it has not been formally impleaded. [Garcia v. Chief of Staff, 16 SCRA 120] In such a
situation, the state may move to dismiss the comp.taint on the ground that it has been filed without
its consent. (Emphasis supplied.)
19
Under the American Constitution, the doctrine is expressed in the Eleventh Amendment which reads:
The Judicial power of the United States shall not be construed to extend to any suit in law or equity,
commenced or prosecuted against one of the United States by Citizens of another State, or by
Citizens or Subjects of any Foreign State.
In the case of Minucher v. Court of Appeals, we further expounded on the immunity of foreign states
from the jurisdiction of local courts, as follows:
20
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 arc 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 soverr~ign equals and cannot assert jurisdiction over one
another. The implication, in broad terms, is that if the judgment against an official would rec 1uire 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. (Emphasis supplied.)
21
In the same case we also mentioned that in the case of diplomatic immunity, 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.
22
In United States of America v. Judge Guinto, one of the consolidated cases therein involved a
Filipino employed at Clark Air Base who was arrested following a buy-bust operation conducted by
two officers of the US Air Force, and was eventually dismissed from his employment when he was
charged in court for violation of R.A. No. 6425. In a complaint for damages filed by the said
employee against the military officers, the latter moved to dismiss the case on the ground that the
suit was against the US Government which had not given its consent. The RTC denied the motion
but on a petition for certiorari and prohibition filed before this Court, we reversed the RTC and
dismissed the complaint. We held that petitioners US military officers were acting in the exercise of
their official functions when they conducted the buy-bust operation against the complainant and
thereafter testified against him at his trial. 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.
23
This traditional rule of State immunity which exempts a State from being sued in the courts of
another State without the former's consent or waiver has evolved into a restrictive doctrine which
distinguishes sovereign and governmental acts (Jure imperil") from private, commercial and
proprietary acts (Jure gestionis). Under the restrictive rule of State immunity, State immunity extends
only to acts Jure imperii. 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.
24
In Shauf v. Court of Appeals, we discussed the limitations of the State immunity principle, thus:
25
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 plaintiff. As was clearly set forth by JustiGe Zaldivar in
Director of the Bureau of Telecommunications, et al. vs. Aligaen, etc., et al. : "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.
xxxx
The aforecited authorities are clear on the matter. They state that the 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 or jurisdiction. (Emphasis supplied.) In this case, the US
respondents were sued in their official capacity as commanding officers of the US Navy who had
control and supervision over the USS Guardian and its crew. The alleged act or omission resulting in
the unfortunate grounding of the USS Guardian on the TRNP was committed while they we:re
performing official military duties. Considering that the satisfaction of a judgment against said
officials will require remedial actions and appropriation of funds by the US government, the suit is
deemed to be one against the US itself. The principle of State immunity therefore bars the exercise
of jurisdiction by this Court over the persons of respondents Swift, Rice and Robling.
26
During the deliberations, Senior Associate Justice Antonio T. Carpio took the position that the
conduct of the US in this case, when its warship entered a restricted area in violation of R.A. No.
10067 and caused damage to the TRNP reef system, brings the matter within the ambit of Article 31
of the United Nations Convention on the Law of the Sea (UNCLOS). He explained that while
historically, warships enjoy sovereign immunity from suit as extensions of their flag State, Art. 31 of
the UNCLOS creates an exception to this rule in cases where they fail to comply with the rules and
regulations of the coastal State regarding passage through the latter's internal waters and the
territorial sea.
According to Justice Carpio, although the US to date has not ratified the UNCLOS, as a matter of
long-standing policy the US considers itself bound by customary international rules on the "traditional
uses of the oceans" as codified in UNCLOS, as can be gleaned from previous declarations by former
Presidents Reagan and Clinton, and the US judiciary in the case of United States v. Royal
Caribbean Cruise Lines, Ltd.
27
The international law of the sea is generally defined as "a body of treaty rules arid customary norms
governing the uses of the sea, the exploitation of its resources, and the exercise of jurisdiction over
maritime regimes. It is a branch of public international law, regulating the relations of states with
respect to the uses of the oceans." The UNCLOS is a multilateral treaty which was opened for
signature on December 10, 1982 at Montego Bay, Jamaica. It was ratified by the Philippines in 1984
but came into force on November 16, 1994 upon the submission of the 60th ratification.
28
The UNCLOS is a product of international negotiation that seeks to balance State sovereignty (mare
clausum) and the principle of freedom of the high seas (mare liberum). The freedom to use the
world's marine waters is one of the oldest customary principles of international law. The UNCLOS
gives to the coastal State sovereign rights in varying degrees over the different zones of the sea
which are: 1) internal waters, 2) territorial sea, 3) contiguous zone, 4) exclusive economic zone, and
5) the high seas. It also gives coastal States more or less jurisdiction over foreign vessels depending
on where the vessel is located.
29
30
31
Insofar as the internal waters and territorial sea is concerned, the Coastal State exercises
sovereignty, subject to the UNCLOS and other rules of international law. Such sovereignty extends
to the air space over the territorial sea as well as to its bed and subsoil.
32
In the case of warships, as pointed out by Justice Carpio, they continue to enjoy sovereign
immunity subject to the following exceptions:
33
Article 30
Non-compliance by warships with the laws and regulations of the coastal State
If any warship does not comply with the laws and regulations of the coastal State concerning
passage through the territorial sea and disregards any request for compliance therewith which is
made to it, the coastal State may require it to leave the territorial sea immediately.
Article 31
Responsibility of the flag State for damage caused by a warship
or other government ship operated for non-commercial purposes
The flag State shall bear international responsibility for any loss or damage to the coastal State
resulting from the non-compliance by a warship or other government ship operated for noncommercial purposes with the laws and regulations of the coastal State concerning passage through
the territorial sea or with the provisions of this Convention or other rules of international law.
Article 32
Immunities of warships and other government ships operated for non-commercial purposes
With such exceptions as are contained in subsection A and in articles 30 and 31, nothing in this
Convention affects the immunities of warships and other government ships operated for noncommercial purposes. (Emphasis supplied.) A foreign warship's unauthorized entry into our internal
waters with resulting damage to marine resources is one situation in which the above provisions may
apply. But what if the offending warship is a non-party to the UNCLOS, as in this case, the US?
An overwhelming majority - over 80% -- of nation states are now members of UNCLOS, but despite
this the US, the world's leading maritime power, has not ratified it.
While the Reagan administration was instrumental in UNCLOS' negotiation and drafting, the U.S.
delegation ultimately voted against and refrained from signing it due to concerns over deep seabed
mining technology transfer provisions contained in Part XI. In a remarkable, multilateral effort to
induce U.S. membership, the bulk of UNCLOS member states cooperated over the succeeding
decade to revise the objection.able provisions. The revisions satisfied the Clinton administration,
which signed the revised Part XI implementing agreement in 1994. In the fall of 1994, President
Clinton transmitted UNCLOS and the Part XI implementing agreement to the Senate requesting its
advice and consent. Despite consistent support from President Clinton, each of his successors, and
an ideologically diverse array of stakeholders, the Senate has since withheld the consent required
for the President to internationally bind the United States to UNCLOS.
While UNCLOS cleared the Senate Foreign Relations Committee (SFRC) during the 108th and
110th Congresses, its progress continues to be hamstrung by significant pockets of political
ambivalence over U.S. participation in international institutions. Most recently, 111 th Congress
SFRC Chairman Senator John Kerry included "voting out" UNCLOS for full Senate consideration
among his highest priorities. This did not occur, and no Senate action has been taken on UNCLOS
by the 112th Congress.
34
Justice Carpio invited our attention to the policy statement given by President Reagan on March 10,
1983 that the US will "recognize the rights of the other , states in the waters off their coasts, as
reflected in the convention [UNCLOS], so long as the rights and freedom of the United States and
others under international law are recognized by such coastal states", and President Clinton's
reiteration of the US policy "to act in a manner consistent with its [UNCLOS] provisions relating to
traditional uses of the oceans and to encourage other countries to do likewise." Since Article 31
relates to the "traditional uses of the oceans," and "if under its policy, the US 'recognize[s] the rights
of the other states in the waters off their coasts,"' Justice Carpio postulates that "there is more
reason to expect it to recognize the rights of other states in their internal waters, such as the Sulu
Sea in this case."
As to the non-ratification by the US, Justice Carpio emphasizes that "the US' refusal to join the UN
CLOS was centered on its disagreement with UN CLOS' regime of deep seabed mining (Part XI)
which considers the oceans and deep seabed commonly owned by mankind," pointing out that such
"has nothing to do with its [the US'] acceptance of customary international rules on navigation."
It may be mentioned that even the US Navy Judge Advocate General's Corps publicly endorses the
ratification of the UNCLOS, as shown by the following statement posted on its official website:
The Convention is in the national interest of the United States because it establishes stable maritime
zones, including a maximum outer limit for territorial seas; codifies innocent passage, transit
passage, and archipelagic sea lanes passage rights; works against "jurisdictiomtl creep" by
preventing coastal nations from expanding their own maritime zones; and reaffirms sovereign
immunity of warships, auxiliaries anJ government aircraft.
xxxx
Economically, accession to the Convention would support our national interests by enhancing the
ability of the US to assert its sovereign rights over the resources of one of the largest continental
shelves in the world. Further, it is the Law of the Sea Convention that first established the concept of
a maritime Exclusive Economic Zone out to 200 nautical miles, and recognized the rights of coastal
states to conserve and manage the natural resources in this Zone.
35
We fully concur with Justice Carpio's view that non-membership in the UNCLOS does not mean that
the US will disregard the rights of the Philippines as a Coastal State over its internal waters and
territorial sea. We thus expect the US to bear "international responsibility" under Art. 31 in
connection with the USS Guardian grounding which adversely affected the Tubbataha reefs. Indeed,
it is difficult to imagine that our long-time ally and trading partner, which has been actively supporting
the country's efforts to preserve our vital marine resources, would shirk from its obligation to
compensate the damage caused by its warship while transiting our internal waters. Much less can
we comprehend a Government exercising leadership in international affairs, unwilling to comply with
the UNCLOS directive for all nations to cooperate in the global task to protect and preserve the
marine environment as provided in Article 197, viz:
Article 197
Cooperation on a global or regional basis
States shall cooperate on a global basis and, as appropriate, on a regional basis, directly or through
competent international organizations, in formulating and elaborating international rules, standards
and recommended practices and procedures consistent with this Convention, for the protection and
preservation of the marine environment, taking into account characteristic regional features.
In fine, the relevance of UNCLOS provisions to the present controversy is beyond dispute. Although
the said treaty upholds the immunity of warships from the jurisdiction of Coastal States while
navigating the.latter's territorial sea, the flag States shall be required to leave the territorial '::;ea
immediately if they flout the laws and regulations of the Coastal State, and they will be liable for
damages caused by their warships or any other government vessel operated for non-commercial
purposes under Article 31.
Petitioners argue that there is a waiver of immunity from suit found in the VFA. Likewise, they invoke
federal statutes in the US under which agencies of the US have statutorily waived their immunity to
any action. Even under the common law tort claims, petitioners asseverate that the US respondents
are liable for negligence, trespass and nuisance.
We are not persuaded.
The VFA is an agreement which defines the treatment of United States troops and personnel visiting
the Philippines to promote "common security interests" between the US and the Philippines in the
region. It provides for the guidelines to govern such visits of military personnel, and further defines
the rights of the United States and the Philippine government in the matter of criminal jurisdiction,
movement of vessel and aircraft, importation and exportation of equipment, materials and
supplies. The invocation of US federal tort laws and even common law is thus improper considering
that it is the VF A which governs disputes involving US military ships and crew navigating Philippine
waters in pursuance of the objectives of the agreement.
36
As it is, the waiver of State immunity under the VF A pertains only to criminal jurisdiction and not to
special civil actions such as the present petition for issuance of a writ of Kalikasan. In fact, it can be
inferred from Section 17, Rule 7 of the Rules that a criminal case against a person charged with a
violation of an environmental law is to be filed separately:
SEC. 17. Institution of separate actions.-The filing of a petition for the issuance of the writ of
kalikasan shall not preclude the filing of separate civil, criminal or administrative actions.
In any case, it is our considered view that a ruling on the application or non-application of criminal
jurisdiction provisions of the VF A to US personnel who may be found responsible for the grounding
of the USS Guardian, would be premature and beyond the province of a petition for a writ of
Kalikasan. We also find it unnecessary at this point to determine whether such waiver of State
immunity is indeed absolute. In the same vein, we cannot grant damages which have resulted from
the violation of environmental laws. The Rules allows the recovery of damages, including the
collection of administrative fines under R.A. No. 10067, in a separate civil suit or that deemed
instituted with the criminal action charging the same violation of an environmental law.
37
Section 15, Rule 7 enumerates the reliefs which may be granted in a petition for issuance of a writ of
Kalikasan, to wit:
SEC. 15. Judgment.-Within sixty (60) days from the time the petition is submitted for decision, the
court shall render judgment granting or denying the privilege of the writ of kalikasan.
The reliefs that may be granted under the writ are the following:
(a) Directing respondent to permanently cease and desist from committing acts or neglecting
the performance of a duty in violation of environmental laws resulting in environmental
destruction or damage;
(b) Directing the respondent public official, govemment agency, private person or entity to
protect, preserve, rehabilitate or restore the environment;
(c) Directing the respondent public official, government agency, private person or entity to
monitor strict compliance with the decision and orders of the court;
(d) Directing the respondent public official, government agency, or private person or entity to
make periodic reports on the execution of the final judgment; and
(e) Such other reliefs which relate to the right of the people to a balanced and healthful
ecology or to the protection, preservation, rehabilitation or restoration of the environment,
except the award of damages to individual petitioners. (Emphasis supplied.)
We agree with respondents (Philippine officials) in asserting that this petition has become moot in
the sense that the salvage operation sought to be enjoined or restrained had already been
accomplished when petitioners sought recourse from this Court. But insofar as the directives to
Philippine respondents to protect and rehabilitate the coral reef stn icture and marine habitat
adversely affected by the grounding incident are concerned, petitioners are entitled to these reliefs
notwithstanding the completion of the removal of the USS Guardian from the coral reef. However, we
are mindful of the fact that the US and Philippine governments both expressed readiness to
negotiate and discuss the matter of compensation for the damage caused by the USS Guardian.
The US Embassy has also declared it is closely coordinating with local scientists and experts in
assessing the extent of the damage and appropriate methods of rehabilitation.
Exploring avenues for settlement of environmental cases is not proscribed by the Rules. As can be
gleaned from the following provisions, mediation and settlement are available for the consideration
of the parties, and which dispute resolution methods are encouraged by the court, to wit:
RULE3
xxxx
SEC. 3. Referral to mediation.-At the start of the pre-trial conference, the court shall inquire from the
parties if they have settled the dispute; otherwise, the court shall immediately refer the parties or
their counsel, if authorized by their clients, to the Philippine Mediation Center (PMC) unit for
purposes of mediation. If not available, the court shall refer the case to the clerk of court or legal
researcher for mediation.
Mediation must be conducted within a non-extendible period of thirty (30) days from receipt of notice
of referral to mediation.
The mediation report must be submitted within ten (10) days from the expiration of the 30-day
period.
SEC. 4. Preliminary conference.-If mediation fails, the court will schedule the continuance of the pretrial. Before the scheduled date of continuance, the court may refer the case to the branch clerk of
court for a preliminary conference for the following purposes:
(a) To assist the parties in reaching a settlement;
xxxx
SEC. 5. Pre-trial conference; consent decree.-The judge shall put the parties and their counsels
under oath, and they shall remain under oath in all pre-trial conferences.
The judge shall exert best efforts to persuade the parties to arrive at a settlement of the dispute. The
judge may issue a consent decree approving the agreement between the parties in accordance with
law, morals, public order and public policy to protect the right of the people to a balanced and
healthful ecology.
xxxx
SEC. 10. Efforts to settle.- The court shall endeavor to make the parties to agree to compromise or
settle in accordance with law at any stage of the proceedings before rendition of judgment.
(Underscoring supplied.)
The Court takes judicial notice of a similar incident in 2009 when a guided-missile cruiser, the USS
Port Royal, ran aground about half a mile off the Honolulu Airport Reef Runway and remained stuck
for four days. After spending $6.5 million restoring the coral reef, the US government was reported to
have paid the State of Hawaii $8.5 million in settlement over coral reef damage caused by the
grounding.
38
To underscore that the US government is prepared to pay appropriate compensation for the damage
caused by the USS Guardian grounding, the US Embassy in the Philippines has announced the
formation of a US interdisciplinary scientific team which will "initiate discussions with the Government
of the Philippines to review coral reef rehabilitation options in Tubbataha, based on assessments by
Philippine-based marine scientists." The US team intends to "help assess damage and remediation
options, in coordination with the Tubbataha Management Office, appropriate Philippine government
entities, non-governmental organizations, and scientific experts from Philippine universities."
39
A rehabilitation or restoration program to be implemented at the cost of the violator is also a major
relief that may be obtained under a judgment rendered in a citizens' suit under the Rules, viz:
RULES
SECTION 1. Reliefs in a citizen suit.-If warranted, the court may grant to the plaintiff proper reliefs
which shall include the protection, preservation or rehabilitation of the environment and the payment
of attorney's fees, costs of suit and other litigation expenses. It may also require the violator to
submit a program of rehabilitation or restoration of the environment, the costs of which shall be
borne by the violator, or to contribute to a special trust fund for that purpose subject to the control of
the court.
1wphi1
In the light of the foregoing, the Court defers to the Executive Branch on the matter of compensation
and rehabilitation measures through diplomatic channels. Resolution of these issues impinges on
our relations with another State in the context of common security interests under the VFA. It is
settled that "[t]he conduct of the foreign relations of our government is committed by the Constitution
to the executive and legislative-"the political" --departments of the government, and the propriety of
what may be done in the exercise of this political power is not subject to judicial inquiry or decision."
40
On the other hand, we cannot grant the additional reliefs prayed for in the petition to order a review
of the VFA and to nullify certain immunity provisions thereof.
As held in BAYAN (Bagong Alyansang Makabayan) v. Exec. Sec. Zamora, the VFA was duly
concurred in by the Philippine Senate and has been recognized as a treaty by the United States as
attested and certified by the duly authorized representative of the United States government. The VF
A being a valid and binding agreement, the parties are required as a matter of international law to
abide by its terms and provisions. The present petition under the Rules is not the proper remedy to
assail the constitutionality of its provisions. WHEREFORE, the petition for the issuance of the
privilege of the Writ of Kalikasan is hereby DENIED.
41
42
No pronouncement as to costs.
SO ORDERED.
MARTIN S. VILLARAMA, JR.
Associate Justice
WE CONCUR:
See Concurring Opinion
MARIA LOURDES P. A. SERENO
Chief Justice
ANTONIO T. CARPIO
Associate Justice
ARTURO D. BRION
Associate Justice
DIOSDADO M. PERALTA
LUCAS P. BERSAMIN
Associate Justice
Associate Justice
BIENVENIDO L. REYES
Associate Justice
ESTELA M. PERLAS-BERNABE
Associate Justice
(No Part)
FRANCIS H. JARDELEZA**
Associate Justice
C E R TI F I C ATI O N
Pursuant to Section 13, Article VIII of the 1987 Constitution, it is hereby certified that the conclusions
in the above Decision had been reached in consultation before the case was assigned to the writer
of the opinion of the Court.
MARIA LOURDES P. A. SERENO
Chief Justice
Footnotes
* On official leave.
** No part.
1
Id.
"AN ACT ESTABLISHING THE TUBBATAHA REEFS NATURAL PARK IN THE PROVINCE
OF PALAWAN AS A PROTECTED AREA UNDER THE NIPAS ACT (R.A. 7586) AND THE
STRATEGIC ENVIRONMENTAL PLAN (SEP) FOR PALAWAN ACT (R.A. 7611),
PROVIDING FOR ITS MANAGEMENT AND FOR OTHER PURPOSES."
3
< http://manila.usembassy.gov/pressphotoreleases2013/navy-commander-expressesregret-concerning-uss-guardian-grounding.html>.
5
"Joint Statement Between The Philippines And The United States On The USS Guardian
Grounding On Tubbatata Reef," February 5, 2013. Accessed. at US Embassy website
-<http://manila.usembassy.gov/jointstatementguardiantubbataha.html>.
6
Id. at 156-191. In a letter dated 27 May 2013, the DFA's Office of Legal Affairs informed this
Court that it has received from the Embassy of the United States the Notice sent by this
Court, with a request to return the same. It said that the US Embassy "asserts that it is not
an agent for the service of process upon the individuals named in court documents, and that
the transmission of the Court documents should have been done through diplomatic
channels." (Id. at 255.)
8
Id. at 215-247.
Bayan Muna v. Romulo, G.R. No. 159618, February 1, 2011, 641 SCRA 244, 254, citing
David v. Macapagal-Arroyo, 522 Phil. 705, 755 (2006).
10
Id., citing Jumamil v. Cafe, 507 Phil. 455, 465 (2005), citing Integrated Bar of the
Philippines v. Zamora, 392 Phil. 6I8, 632-633 (2000).
11
Biraogo v. Philippine Truth Commission of2010, G.R. Nos. 192935 & 193036, December 7,
2010, 637 SCRA 78, 151, citing Social Justice Society (SJS) v. Dangerous Drugs Board, et
al., 591 Phil. 393, 404 (2008); Tatad v. Secretary of the Department of Energy, 346 Phil. 321
(1997) and De Guia v. COMELEC, G.R. No. 104712, May 6, 1992, 208 SCRA 420, 422.
12
13
14
Id. at 804-805.
15
Id. at 802-803.
16
Air Transportation Office v. Ramos, G.R. No. 159402, February 23, 2011, 644 SCRA 36,
41.
17
18
19
Id. at 790-792.
20
21
Id. at 268, citing J.L. Brierly, "The Law of Nations," Oxford University Press, 6th Edition,
1963, p. 244.
22
23
24
United States of America v. Ruiz, 221 Phil. 179, 182-183 & 184 (1985).
25
26
Id. at 727-728.
27
28
Anne Bardin, "Coastal State's Jurisdiction Over Foreign Vessels" 14 Pace Int'!. Rev. 27, 28
(2002).
30
31
Id. at 29.
32
Art. 2, UNCLOS.
Art. 29 of UNCLOS defines warship as "a ship belonging to the armed forces of a State
bearing the external marks distinguishing such ships of its nationality, under the command of
an officer duly commissioned by the government of the State and whose name appears in
the appropriate service list or its equivalent, and manned by a crew which is under regular
armed forces discipline."
33
Commander Robert C. "Rock" De Tolve, JAGC, USN, "At What Cost? Americas UNCLOS
Allergy in the Time of 'Lav.fare'", 61 Naval L. Rev. 1, 3 (2012).
34
35
<http://www.jag.navy.mil/organizationlcode10lawofthesea.htm>.
See BAYAN (Bagong Alyansang Makabayan) v. Exec. Sec. Zamora, 396 Phil. 623, 652
(2000).
36
37
39
<http://manila.usembassy.gov/usgtargetedassistancetubbataha. html>.
Vinuya v. Romulo, G.R. No. 162230, April 28, 2010, 619 SCRA 533, 559, citing Detjen v.
Central Leather Co., 246 U.S. 297, 302 (1918).
40
41
42
Nicolas v. Secretary Romulo, et al., 598 Phil. 262. 280 & 285.
Case 7
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 Constitution and 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 was under 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
Torresand 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 Paquinto and Lt.
Laonglaan Gocesped 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.
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.
16
Narvasa, C.J., Cruz, Feliciano, Padilla, Bidin, Grio-Aquino, Regalado, Davide, Jr., Romero,
Nocon, Bellosillo, Melo and Quiason, JJ., concur.
Gutierrez, Jr., J., is on leave.
# Footnotes
1 Judge Edilberto G. Sandoval was the presiding judge of Branch 9 of Regional
Trial Court, Manila.
2 Rollo of G.R. No. 84607, p. 65.
3 Ibid., pp. 73-76.
4 Ibid., p. 80.
5 Ibid., pp. 82-84.
6 Ibid., pp. 84-85.
7 Ibid., p. 158.
8 Ibid., pp. 102-103.
9 Ibid., pp. 107-109.
10 Rollo, G.R. No. 84645, pp. 36-38.
11 Ibid., pp. 125-126.
12 Kawananakoa vs. Polyblank, 205 U.S. 349-353, 51 L. Ed. 834 (1907).
13 The Siren vs. United States, 7 Wall. 152, 19 L. Ed. 129 (1869).
14 Supra, note 7.
15 Ibid.
16 J.G. BERNAS, CONSTITUTIONAL STRUCTURE AND POWERS OF
GOVERNMENT, NOTES AND CASES 414 (1st ed., 1991).
17 Rollo of G.R. No. 84607, pp. 196-197.
18 Sec. 13. Prohibited Acts. The following shall constitute violations of this
Act:
Case 8
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
THE HON. ERIBERTO U. ROSARIO, JR., as Presiding Judge of the Regional Trial Court of
Makati, Branch 61 and STARBRIGHT SALES ENTERPRISES, INC., respondents.
Padilla Law Office for petitioner.
Siguion Reyna, Montecillo & Ongsiako for private respondent.
QUIASON, J.:
This is a petition for certiorari under Rule 65 of the Revised Rules of Court to reverse and set aside
the Orders dated June 20, 1991 and September 19, 1991 of the Regional Trial Court, Branch 61,
Makati, Metro Manila in Civil Case No. 90-183.
The Order dated June 20, 1991 denied the motion of petitioner to dismiss the complaint in Civil Case
No. 90-183, while the Order dated September 19, 1991 denied the motion for reconsideration of the
June 20,1991 Order.
Petitioner is the Holy See who exercises sovereignty over the Vatican City in Rome, Italy, and is
represented in the Philippines by the Papal Nuncio.
Private respondent, Starbright Sales Enterprises, Inc., is a domestic corporation engaged in the real
estate business.
This petition arose from a controversy over a parcel of land consisting of 6,000 square meters (Lot 5A, Transfer Certificate of Title No. 390440) located in the Municipality of Paraaque, Metro Manila
and registered in the name of petitioner.
Said Lot 5-A is contiguous to Lots 5-B and 5-D which are covered by Transfer Certificates of Title
Nos. 271108 and 265388 respectively and registered in the name of the Philippine Realty
Corporation (PRC).
The three lots were sold to Ramon Licup, through Msgr. Domingo A. Cirilos, Jr., acting as agent to
the sellers. Later, Licup assigned his rights to the sale to private respondent.
In view of the refusal of the squatters to vacate the lots sold to private respondent, a dispute arose
as to who of the parties has the responsibility of evicting and clearing the land of squatters.
Complicating the relations of the parties was the sale by petitioner of Lot 5-A to Tropicana Properties
and Development Corporation (Tropicana).
I
On January 23, 1990, private respondent filed a complaint with the Regional Trial Court, Branch 61,
Makati, Metro Manila for annulment of the sale of the three parcels of land, and specific performance
and damages against petitioner, represented by the Papal Nuncio, and three other defendants:
namely, Msgr. Domingo A. Cirilos, Jr., the PRC and Tropicana (Civil Case No.
90-183).
The complaint alleged that: (1) on April 17, 1988, Msgr. Cirilos, Jr., on behalf of petitioner and the
PRC, agreed to sell to Ramon Licup Lots 5-A, 5-B and 5-D at the price of P1,240.00 per square
meters; (2) the agreement to sell was made on the condition that earnest money of P100,000.00 be
paid by Licup to the sellers, and that the sellers clear the said lots of squatters who were then
occupying the same; (3) Licup paid the earnest money to Msgr. Cirilos; (4) in the same month, Licup
assigned his rights over the property to private respondent and informed the sellers of the said
assignment; (5) thereafter, private respondent demanded from Msgr. Cirilos that the sellers fulfill
their undertaking and clear the property of squatters; however, Msgr. Cirilos informed private
respondent of the squatters' refusal to vacate the lots, proposing instead either that private
respondent undertake the eviction or that the earnest money be returned to the latter; (6) private
respondent counterproposed that if it would undertake the eviction of the squatters, the purchase
price of the lots should be reduced from P1,240.00 to P1,150.00 per square meter; (7) Msgr. Cirilos
returned the earnest money of P100,000.00 and wrote private respondent giving it seven days from
receipt of the letter to pay the original purchase price in cash; (8) private respondent sent the earnest
money back to the sellers, but later discovered that on March 30, 1989, petitioner and the PRC,
without notice to private respondent, sold the lots to Tropicana, as evidenced by two separate Deeds
of Sale, one over Lot 5-A, and another over Lots 5-B and 5-D; and that the sellers' transfer certificate
of title over the lots were cancelled, transferred and registered in the name of Tropicana; (9)
Tropicana induced petitioner and the PRC to sell the lots to it and thus enriched itself at the expense
of private respondent; (10) private respondent demanded the rescission of the sale to Tropicana and
the reconveyance of the lots, to no avail; and (11) private respondent is willing and able to comply
with the terms of the contract to sell and has actually made plans to develop the lots into a
townhouse project, but in view of the sellers' breach, it lost profits of not less than P30,000.000.00.
Private respondent thus prayed for: (1) the annulment of the Deeds of Sale between petitioner and
the PRC on the one hand, and Tropicana on the other; (2) the reconveyance of the lots in question;
(3) specific performance of the agreement to sell between it and the owners of the lots; and (4)
damages.
On June 8, 1990, petitioner and Msgr. Cirilos separately moved to dismiss the complaint
petitioner for lack of jurisdiction based on sovereign immunity from suit, and Msgr. Cirilos for being
an improper party. An opposition to the motion was filed by private respondent.
On June 20, 1991, the trial court issued an order denying, among others, petitioner's motion to
dismiss after finding that petitioner "shed off [its] sovereign immunity by entering into the business
contract in question" (Rollo, pp. 20-21).
On July 12, 1991, petitioner moved for reconsideration of the order. On August 30, 1991, petitioner
filed a "Motion for a Hearing for the Sole Purpose of Establishing Factual Allegation for claim of
Immunity as a Jurisdictional Defense." So as to facilitate the determination of its defense of
sovereign immunity, petitioner prayed that a hearing be conducted to allow it to establish certain
facts upon which the said defense is based. Private respondent opposed this motion as well as the
motion for reconsideration.
On October 1, 1991, the trial court issued an order deferring the resolution on the motion for
reconsideration until after trial on the merits and directing petitioner to file its answer (Rollo, p. 22).
Petitioner forthwith elevated the matter to us. In its petition, petitioner invokes the privilege of
sovereign immunity only on its own behalf and on behalf of its official representative, the Papal
Nuncio.
On December 9, 1991, a Motion for Intervention was filed before us by the Department of Foreign
Affairs, claiming that it has a legal interest in the outcome of the case as regards the diplomatic
immunity of petitioner, and that it "adopts by reference, the allegations contained in the petition of the
Holy See insofar as they refer to arguments relative to its claim of sovereign immunity from suit"
(Rollo, p. 87).
Private respondent opposed the intervention of the Department of Foreign Affairs. In compliance with
the resolution of this Court, both parties and the Department of Foreign Affairs submitted their
respective memoranda.
II
A preliminary matter to be threshed out is the procedural issue of whether the petition
for certiorari under Rule 65 of the Revised Rules of Court can be availed of to question the order
denying petitioner's motion to dismiss. The general rule is that an order denying a motion to dismiss
is not reviewable by the appellate courts, the remedy of the movant being to file his answer and to
proceed with the hearing before the trial court. But the general rule admits of exceptions, and one of
these is when it is very clear in the records that the trial court has no alternative but to dismiss the
complaint (Philippine National Bank v. Florendo, 206 SCRA 582 [1992]; Zagada v. Civil Service
Commission, 216 SCRA 114 [1992]. In such a case, it would be a sheer waste of time and energy to
require the parties to undergo the rigors of a trial.
The other procedural question raised by private respondent is the personality or legal interest of the
Department of Foreign Affairs to intervene in the case in behalf of the Holy See (Rollo, pp. 186-190).
In Public International Law, when a state or international agency wishes to plead sovereign or
diplomatic immunity in a foreign court, it requests the Foreign Office of the state where it is sued to
convey to the court that said defendant is entitled to immunity.
In the United States, the procedure followed is the process of "suggestion," where the foreign state
or the international organization sued in an American court requests the Secretary of State to make
a determination as to whether it is entitled to immunity. If the Secretary of State finds that the
defendant is immune from suit, he, in turn, asks the Attorney General to submit to the court a
"suggestion" that the defendant is entitled to immunity. In England, a similar procedure is followed,
only the Foreign Office issues a certification to that effect instead of submitting a "suggestion"
(O'Connell, I International Law 130 [1965]; Note: Immunity from Suit of Foreign Sovereign
Instrumentalities and Obligations, 50 Yale Law Journal 1088 [1941]).
In the Philippines, the practice is for the foreign government or the international organization to first
secure an executive endorsement of its claim of sovereign or diplomatic immunity. But how the
Philippine Foreign Office conveys its endorsement to the courts varies. In International Catholic
Migration Commission v. Calleja, 190 SCRA 130 (1990), the Secretary of Foreign Affairs just sent a
letter directly to the Secretary of Labor and Employment, informing the latter that the respondentemployer could not be sued because it enjoyed diplomatic immunity. In World Health Organization v.
Aquino, 48 SCRA 242 (1972), the Secretary of Foreign Affairs sent the trial court a telegram to that
effect. In Baer v. Tizon, 57 SCRA 1 (1974), the U.S. Embassy asked the Secretary of Foreign Affairs
to request the Solicitor General to make, in behalf of the Commander of the United States Naval
Base at Olongapo City, Zambales, a "suggestion" to respondent Judge. The Solicitor General
embodied the "suggestion" in a Manifestation and Memorandum as amicus curiae.
In the case at bench, the Department of Foreign Affairs, through the Office of Legal Affairs moved
with this Court to be allowed to intervene on the side of petitioner. The Court allowed the said
Department to file its memorandum in support of petitioner's claim of sovereign immunity.
In some cases, the defense of sovereign immunity was submitted directly to the local courts by the
respondents through their private counsels (Raquiza v. Bradford, 75 Phil. 50 [1945]; Miquiabas v.
Philippine-Ryukyus Command, 80 Phil. 262 [1948]; United States of America v. Guinto, 182 SCRA
644 [1990] and companion cases). In cases where the foreign states bypass the Foreign Office, the
courts can inquire into the facts and make their own determination as to the nature of the acts and
transactions involved.
III
The burden of the petition is that respondent trial court has no jurisdiction over petitioner, being a
foreign state enjoying sovereign immunity. On the other hand, private respondent insists that the
doctrine of non-suability is not anymore absolute and that petitioner has divested itself of such a
cloak when, of its own free will, it entered into a commercial transaction for the sale of a parcel of
land located in the Philippines.
A. The Holy See
Before we determine the issue of petitioner's non-suability, a brief look into its status as a sovereign
state is in order.
Before the annexation of the Papal States by Italy in 1870, the Pope was the monarch and he, as
the Holy See, was considered a subject of International Law. With the loss of the Papal States and
the limitation of the territory under the Holy See to an area of 108.7 acres, the position of the Holy
See in International Law became controversial (Salonga and Yap, Public International Law 36-37
[1992]).
In 1929, Italy and the Holy See entered into the Lateran Treaty, where Italy recognized the exclusive
dominion and sovereign jurisdiction of the Holy See over the Vatican City. It also recognized the right
of the Holy See to receive foreign diplomats, to send its own diplomats to foreign countries, and to
enter into treaties according to International Law (Garcia, Questions and Problems In International
Law, Public and Private 81 [1948]).
The Lateran Treaty established the statehood of the Vatican City "for the purpose of assuring to the
Holy See absolute and visible independence and of guaranteeing to it indisputable sovereignty also
in the field of international relations" (O'Connell, I International Law 311 [1965]).
In view of the wordings of the Lateran Treaty, it is difficult to determine whether the statehood is
vested in the Holy See or in the Vatican City. Some writers even suggested that the treaty created
two international persons the Holy See and Vatican City (Salonga and Yap, supra, 37).
The Vatican City fits into none of the established categories of states, and the attribution to it of
"sovereignty" must be made in a sense different from that in which it is applied to other states
(Fenwick, International Law 124-125 [1948]; Cruz, International Law 37 [1991]). In a community of
national states, the Vatican City represents an entity organized not for political but for ecclesiastical
purposes and international objects. Despite its size and object, the Vatican City has an independent
government of its own, with the Pope, who is also head of the Roman Catholic Church, as the Holy
See or Head of State, in conformity with its traditions, and the demands of its mission in the world.
Indeed, the world-wide interests and activities of the Vatican City are such as to make it in a sense
an "international state" (Fenwick, supra., 125; Kelsen, Principles of International Law 160 [1956]).
One authority wrote that the recognition of the Vatican City as a state has significant implication
that it is possible for any entity pursuing objects essentially different from those pursued by states to
be invested with international personality (Kunz, The Status of the Holy See in International Law, 46
The American Journal of International Law 308 [1952]).
Inasmuch as the Pope prefers to conduct foreign relations and enter into transactions as the Holy
See and not in the name of the Vatican City, one can conclude that in the Pope's own view, it is the
Holy See that is the international person.
The Republic of the Philippines has accorded the Holy See the status of a foreign sovereign. The
Holy See, through its Ambassador, the Papal Nuncio, has had diplomatic representations with the
Philippine government since 1957 (Rollo, p. 87). This appears to be the universal practice in
international relations.
B. Sovereign Immunity
As expressed in Section 2 of Article II of the 1987 Constitution, we have adopted the generally
accepted principles of International Law. Even without this affirmation, such principles of
International Law are deemed incorporated as part of the law of the land as a condition and
consequence of our admission in the society of nations (United States of America v. Guinto, 182
SCRA 644 [1990]).
There are two conflicting concepts of sovereign immunity, each widely held and firmly established.
According to the classical or absolute theory, a sovereign cannot, without its consent, be made a
respondent in the courts of another sovereign. According to the newer or restrictive theory, the
immunity of the sovereign is recognized only with regard to public acts or acts jure imperii of a state,
but not with regard to private acts or acts jure gestionis
(United States of America v. Ruiz, 136 SCRA 487 [1987]; Coquia and Defensor-Santiago, Public
International Law 194 [1984]).
Some states passed legislation to serve as guidelines for the executive or judicial determination
when an act may be considered as jure gestionis. The United States passed the Foreign Sovereign
Immunities Act of 1976, which defines a commercial activity as "either a regular course of
commercial conduct or a particular commercial transaction or act." Furthermore, the law declared
that the "commercial character of the activity shall be determined by reference to the nature of the
course of conduct or particular transaction or act, rather than by reference to its purpose." The
Canadian Parliament enacted in 1982 an Act to Provide For State Immunity in Canadian Courts. The
Act defines a "commercial activity" as any particular transaction, act or conduct or any regular
course of conduct that by reason of its nature, is of a "commercial character."
The restrictive theory, which is intended to be a solution to the host of problems involving the issue
of sovereign immunity, has created problems of its own. Legal treatises and the decisions in
countries which follow the restrictive theory have difficulty in characterizing whether a contract of a
sovereign state with a private party is an act jure gestionis or an act jure imperii.
The restrictive theory came about because of the entry of sovereign states into purely commercial
activities remotely connected with the discharge of governmental functions. This is particularly true
with respect to the Communist states which took control of nationalized business activities and
international trading.
This Court has considered the following transactions by a foreign state with private parties as
acts jure imperii: (1) the lease by a foreign government of apartment buildings for use of its military
officers (Syquia v. Lopez, 84 Phil. 312 [1949]; (2) the conduct of public bidding for the repair of a
wharf at a United States Naval Station (United States of America v. Ruiz, supra.); and (3) the change
of employment status of base employees (Sanders v. Veridiano, 162 SCRA 88 [1988]).
On the other hand, this Court has considered the following transactions by a foreign state with
private parties as acts jure gestionis: (1) the hiring of a cook in the recreation center, consisting of
three restaurants, a cafeteria, a bakery, a store, and a coffee and pastry shop at the John Hay Air
Station in Baguio City, to cater to American servicemen and the general public (United States of
America v. Rodrigo, 182 SCRA 644 [1990]); and (2) the bidding for the operation of barber shops in
Clark Air Base in Angeles City (United States of America v. Guinto, 182 SCRA 644 [1990]). The
operation of the restaurants and other facilities open to the general public is undoubtedly for profit as
a commercial and not a governmental activity. By entering into the employment contract with the
cook in the discharge of its proprietary function, the United States government impliedly divested
itself of its sovereign immunity from suit.
In the absence of legislation defining what activities and transactions shall be considered
"commercial" and as constituting acts jure gestionis, we have to come out with our own guidelines,
tentative they may be.
Certainly, the mere entering into a contract by a foreign state with a private party cannot be the
ultimate test. Such an act can only be the start of the inquiry. The logical question is whether the
foreign state is engaged in the activity in the regular course of business. If the foreign state is not
engaged regularly in a business or trade, the particular act or transaction must then be tested by its
nature. If the act is in pursuit of a sovereign activity, or an incident thereof, then it is an act jure
imperii, especially when it is not undertaken for gain or profit.
As held in United States of America v. Guinto, (supra):
There is no question that the United States of America, like any other state, will be
deemed to have impliedly waived its non-suability if it has entered into a contract in
its proprietary or private capacity. It is only when the contract involves its sovereign
or governmental capacity that no such waiver may be implied.
In the case at bench, if petitioner has bought and sold lands in the ordinary course of a real estate
business, surely the said transaction can be categorized as an act jure gestionis. However, petitioner
has denied that the acquisition and subsequent disposal of Lot 5-A were made for profit but claimed
that it acquired said property for the site of its mission or the Apostolic Nunciature in the Philippines.
Private respondent failed to dispute said claim.
Lot 5-A was acquired by petitioner as a donation from the Archdiocese of Manila. The donation was
made not for commercial purpose, but for the use of petitioner to construct thereon the official place
of residence of the Papal Nuncio. The right of a foreign sovereign to acquire property, real or
personal, in a receiving state, necessary for the creation and maintenance of its diplomatic mission,
is recognized in the 1961 Vienna Convention on Diplomatic Relations (Arts. 20-22). This treaty was
concurred in by the Philippine Senate and entered into force in the Philippines on November 15,
1965.
In Article 31(a) of the Convention, a diplomatic envoy is granted immunity from the civil and
administrative jurisdiction of the receiving state over any real action relating to private immovable
property situated in the territory of the receiving state which the envoy holds on behalf of the sending
state for the purposes of the mission. If this immunity is provided for a diplomatic envoy, with all the
more reason should immunity be recognized as regards the sovereign itself, which in this case is the
Holy See.
The decision to transfer the property and the subsequent disposal thereof are likewise clothed with a
governmental character. Petitioner did not sell Lot
5-A for profit or gain. It merely wanted to dispose off the same because the squatters living thereon
made it almost impossible for petitioner to use it for the purpose of the donation. The fact that
squatters have occupied and are still occupying the lot, and that they stubbornly refuse to leave the
premises, has been admitted by private respondent in its complaint (Rollo, pp. 26, 27).
The issue of petitioner's non-suability can be determined by the trial court without going to trial in the
light of the pleadings, particularly the admission of private respondent. Besides, the privilege of
sovereign immunity in this case was sufficiently established by the Memorandum and Certification of
the Department of Foreign Affairs. As the department tasked with the conduct of the Philippines'
foreign relations (Administrative Code of 1987, Book IV, Title I, Sec. 3), the Department of Foreign
Affairs has formally intervened in this case and officially certified that the Embassy of the Holy See is
a duly accredited diplomatic mission to the Republic of the Philippines exempt from local jurisdiction
and entitled to all the rights, privileges and immunities of a diplomatic mission or embassy in this
country (Rollo, pp. 156-157). The determination of the executive arm of government that a state or
instrumentality is entitled to sovereign or diplomatic immunity is a political question that is conclusive
upon the courts (International Catholic Migration Commission v. Calleja, 190 SCRA 130 [1990]).
Where the plea of immunity is recognized and affirmed by the executive branch, it is the duty of the
courts to accept this claim so as not to embarrass the executive arm of the government in
conducting the country's foreign relations (World Health Organization v. Aquino, 48 SCRA 242
[1972]). As in International Catholic Migration Commission and in World Health Organization, we
abide by the certification of the Department of Foreign Affairs.
Ordinarily, the procedure would be to remand the case and order the trial court to conduct a hearing
to establish the facts alleged by petitioner in its motion. In view of said certification, such procedure
would however be pointless and unduly circuitous (Ortigas & Co. Ltd. Partnership v. Judge Tirso
Velasco, G.R. No. 109645, July 25, 1994).
IV
Private respondent is not left without any legal remedy for the redress of its grievances. Under both
Public International Law and Transnational Law, a person who feels aggrieved by the acts of a
foreign sovereign can ask his own government to espouse his cause through diplomatic channels.
Private respondent can ask the Philippine government, through the Foreign Office, to espouse its
claims against the Holy See. Its first task is to persuade the Philippine government to take up with
the Holy See the validity of its claims. Of course, the Foreign Office shall first make a determination
of the impact of its espousal on the relations between the Philippine government and the Holy See
(Young, Remedies of Private Claimants Against Foreign States, Selected Readings on Protection by
Law of Private Foreign Investments 905, 919 [1964]). Once the Philippine government decides to
espouse the claim, the latter ceases to be a private cause.
According to the Permanent Court of International Justice, the forerunner of the International Court
of Justice:
By taking up the case of one of its subjects and by reporting to diplomatic action or
international judicial proceedings on his behalf, a State is in reality asserting its own
rights its right to ensure, in the person of its subjects, respect for the rules of
international law (The Mavrommatis Palestine Concessions, 1 Hudson, World Court
Reports 293, 302 [1924]).
WHEREFORE, the petition for certiorari is GRANTED and the complaint in Civil Case No. 90-183
against petitioner is DISMISSED.
SO ORDERED.
Narvasa, C.J., Bidin, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan and
Mendoza, JJ., concur.
Padilla, J., took no part.
Feliciano, J., is on leave.