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G. R. No.

175352 January 18, 2011 NEUTRAL ENTITY SEPARATE AND INDEPENDENT OF


DANTE V. LIBAN, REYNALDO M. BERNARDO and GOVERNMENT CONTROL, YET IT DOES NOT QUALIFY AS
SALVADOR M. VIARI, Petitioners, STRICTLY PRIVATE IN CHARACTER.
vs. In his Comment and Manifestation10 filed on November 9, 2009,
RICHARD J. GORDON, Respondent. respondent manifests: (1) that he agrees with the position taken by the
PHILIPPINE NATIONAL RED CROSS, Intervenor. PNRC in its Motion for Partial Reconsideration dated August 27,
RESOLUTION 2009; and (2) as of the writing of said Comment and Manifestation,
LEONARDO-DE CASTRO, J.: there was pending before the Congress of the Philippines a proposed
This resolves the Motion for Clarification and/or for bill entitled "An Act Recognizing the PNRC as an Independent,
Reconsideration1 filed on August 10, 2009 by respondent Richard J. Autonomous, Non-Governmental Organization Auxiliary to the
Gordon (respondent) of the Decision promulgated by this Court on Authorities of the Republic of the Philippines in the Humanitarian
July 15, 2009 (the Decision), the Motion for Partial Field, to be Known as The Philippine Red Cross."11
Reconsideration2 filed on August 27, 2009 by movant-intervenor After a thorough study of the arguments and points raised by the
Philippine National Red Cross (PNRC), and the latter’s respondent as well as those of movant-intervenor in their respective
Manifestation and Motion to Admit Attached Position Paper3 filed motions, we have reconsidered our pronouncements in our Decision
on December 23, 2009. dated July 15, 2009 with regard to the nature of the PNRC and the
In the Decision,4 the Court held that respondent did not forfeit his constitutionality of some provisions of the PNRC Charter, R.A. No.
seat in the Senate when he accepted the chairmanship of the PNRC 95, as amended.
Board of Governors, as "the office of the PNRC Chairman is not a As correctly pointed out in respondent’s Motion, the issue of
government office or an office in a government-owned or controlled constitutionality of R.A. No. 95 was not raised by the parties, and was
corporation for purposes of the prohibition in Section 13, Article VI not among the issues defined in the body of the Decision; thus, it was
of the 1987 Constitution."5 The Decision, however, further declared not the very lis mota of the case. We have reiterated the rule as to
void the PNRC Charter "insofar as it creates the PNRC as a private when the Court will consider the issue of constitutionality in Alvarez
corporation" and consequently ruled that "the PNRC should v. PICOP Resources, Inc.,12 thus:
incorporate under the Corporation Code and register with the This Court will not touch the issue of unconstitutionality unless it is
Securities and Exchange Commission if it wants to be a private the very lis mota. It is a well-established rule that a court should not
corporation."6 The dispositive portion of the Decision reads as pass upon a constitutional question and decide a law to be
follows: unconstitutional or invalid, unless such question is raised by the
WHEREFORE, we declare that the office of the Chairman of the parties and that when it is raised, if the record also presents some other
Philippine National Red Cross is not a government office or an office ground upon which the court may [rest] its judgment, that course will
in a government-owned or controlled corporation for purposes of the be adopted and the constitutional question will be left for
prohibition in Section 13, Article VI of the 1987 Constitution. We consideration until such question will be unavoidable.13
also declare that Sections 1, 2, 3, 4(a), 5, 6, 7, 8, 9, 10, 11, 12, and 13 Under the rule quoted above, therefore, this Court should not have
of the Charter of the Philippine National Red Cross, or Republic Act declared void certain sections of R.A. No. 95, as amended by
No. 95, as amended by Presidential Decree Nos. 1264 and 1643, are Presidential Decree (P.D.) Nos. 1264 and 1643, the PNRC Charter.
VOID because they create the PNRC as a private corporation or grant Instead, the Court should have exercised judicial restraint on this
it corporate powers.7 matter, especially since there was some other ground upon which the
In his Motion for Clarification and/or for Reconsideration, respondent Court could have based its judgment. Furthermore, the PNRC, the
raises the following grounds: (1) as the issue of constitutionality of entity most adversely affected by this declaration of
Republic Act (R.A.) No. 95 was not raised by the parties, the Court unconstitutionality, which was not even originally a party to this case,
went beyond the case in deciding such issue; and (2) as the Court was being compelled, as a consequence of the Decision, to suddenly
decided that Petitioners did not have standing to file the instant reorganize and incorporate under the Corporation Code, after more
Petition, the pronouncement of the Court on the validity of R.A. No. than sixty (60) years of existence in this country.
95 should be considered obiter.8 Its existence as a chartered corporation remained unchallenged on
Respondent argues that the validity of R.A. No. 95 was a non-issue; ground of unconstitutionality notwithstanding that R.A. No. 95 was
therefore, it was unnecessary for the Court to decide on that question. enacted on March 22, 1947 during the effectivity of the 1935
Respondent cites Laurel v. Garcia,9 wherein the Court said that it Constitution, which provided for a proscription against the creation
"will not pass upon a constitutional question although properly of private corporations by special law, to wit:
presented by the record if the case can be disposed of on some other SEC. 7. The Congress shall not, except by general law, provide for
ground" and goes on to claim that since this Court, in the Decision, the formation, organization, or regulation of private corporations,
disposed of the petition on some other ground, i.e., lack of standing unless such corporations are owned and controlled by the
of petitioners, there was no need for it to delve into the validity of Government or any subdivision or instrumentality thereof. (Art. XIV,
R.A. No. 95, and the rest of the judgment should be deemed obiter. 1935 Constitution.)
In its Motion for Partial Reconsideration, PNRC prays that the Court Similar provisions are found in Article XIV, Section 4 of the 1973
sustain the constitutionality of its Charter on the following grounds: Constitution and Article XII, Section 16 of the 1987 Constitution. The
A. THE ASSAILED DECISION DECLARING latter reads:
UNCONSTITUTIONAL REPUBLIC ACT NO. 95 AS AMENDED SECTION 16. The Congress shall not, except by general law, provide
DEPRIVED INTERVENOR PNRC OF ITS CONSTITUTIONAL for the formation, organization, or regulation of private corporations.
RIGHT TO DUE PROCESS. Government-owned or controlled corporations may be created or
1. INTERVENOR PNRC WAS NEVER A PARTY TO THE established by special charters in the interest of the common good and
INSTANT CONTROVERSY. subject to the test of economic viability.
2. THE CONSTITUTIONALITY OF REPUBLIC ACT NO. 95, AS Since its enactment, the PNRC Charter was amended several times,
AMENDED WAS NEVER AN ISSUE IN THIS CASE. particularly on June 11, 1953, August 16, 1971, December 15, 1977,
B. THE CURRENT CHARTER OF PNRC IS PRESIDENTIAL and October 1, 1979, by virtue of R.A. No. 855, R.A. No. 6373, P.D.
DECREE NO. 1264 AND NOT REPUBLIC ACT NO. 95. No. 1264, and P.D. No. 1643, respectively. The passage of several
PRESIDENTIAL DECREE NO. 1264 WAS NOT A CREATION OF laws relating to the PNRC’s corporate existence notwithstanding the
CONGRESS. effectivity of the constitutional proscription on the creation of private
C. PNRC’S STRUCTURE IS SUI GENERIS; IT IS A CLASS OF corporations by law, is a recognition that the PNRC is not strictly in
ITS OWN. WHILE IT IS PERFORMING HUMANITARIAN the nature of a private corporation contemplated by the aforesaid
FUNCTIONS AS AN AUXILIARY TO GOVERNMENT, IT IS A constitutional ban.
A closer look at the nature of the PNRC would show that there is none (b) For the purposes mentioned in the preceding sub-section, to
like it not just in terms of structure, but also in terms of history, public perform all duties devolving upon the Corporation as a result of the
service and official status accorded to it by the State and the adherence of the Republic of the Philippines to the said Convention;
international community. There is merit in PNRC’s contention that (c) To act in matters of voluntary relief and in accordance with the
its structure is sui generis. authorities of the armed forces as a medium of communication
The PNRC succeeded the chapter of the American Red Cross which between people of the Republic of the Philippines and their Armed
was in existence in the Philippines since 1917. It was created by an Forces, in time of peace and in time of war, and to act in such matters
Act of Congress after the Republic of the Philippines became an between similar national societies of other governments and the
independent nation on July 6, 1946 and proclaimed on February 14, Governments and people and the Armed Forces of the Republic of
1947 its adherence to the Convention of Geneva of July 29, 1929 for the Philippines;
the Amelioration of the Condition of the Wounded and Sick of (d) To establish and maintain a system of national and international
Armies in the Field (the "Geneva Red Cross Convention"). By that relief in time of peace and in time of war and apply the same in
action the Philippines indicated its desire to participate with the meeting and emergency needs caused by typhoons, flood, fires,
nations of the world in mitigating the suffering caused by war and to earthquakes, and other natural disasters and to devise and carry on
establish in the Philippines a voluntary organization for that purpose measures for minimizing the suffering caused by such disasters;
and like other volunteer organizations established in other countries (e) To devise and promote such other services in time of peace and in
which have ratified the Geneva Conventions, to promote the health time of war as may be found desirable in improving the health, safety
and welfare of the people in peace and in war.14 and welfare of the Filipino people;
The provisions of R.A. No. 95, as amended by R.A. Nos. 855 and (f) To devise such means as to make every citizen and/or resident of
6373, and further amended by P.D. Nos. 1264 and 1643, show the the Philippines a member of the Red Cross.
historical background and legal basis of the creation of the PNRC by The PNRC is one of the National Red Cross and Red Crescent
legislative fiat, as a voluntary organization impressed with public Societies, which, together with the International Committee of the
interest. Pertinently R.A. No. 95, as amended by P.D. 1264, provides: Red Cross (ICRC) and the IFRC and RCS, make up the International
WHEREAS, during the meeting in Geneva, Switzerland, on 22 Red Cross and Red Crescent Movement (the Movement). They
August 1894, the nations of the world unanimously agreed to constitute a worldwide humanitarian movement, whose mission is:
diminish within their power the evils inherent in war; [T]o prevent and alleviate human suffering wherever it may be found,
WHEREAS, more than one hundred forty nations of the world have to protect life and health and ensure respect for the human being, in
ratified or adhered to the Geneva Conventions of August 12, 1949 for particular in times of armed conflict and other emergencies, to work
the Amelioration of the Condition of the Wounded and Sick of Armed for the prevention of disease and for the promotion of health and
Forces in the Field and at Sea, The Prisoners of War, and The Civilian social welfare, to encourage voluntary service and a constant
Population in Time of War referred to in this Charter as the Geneva readiness to give help by the members of the Movement, and a
Conventions; universal sense of solidarity towards all those in need of its protection
WHEREAS, the Republic of the Philippines became an independent and assistance.15
nation on July 4, 1946, and proclaimed on February 14, 1947 its The PNRC works closely with the ICRC and has been involved in
adherence to the Geneva Conventions of 1929, and by the action, humanitarian activities in the Philippines since 1982. Among others,
indicated its desire to participate with the nations of the world in these activities in the country include:
mitigating the suffering caused by war and to establish in the 1. Giving protection and assistance to civilians displaced or otherwise
Philippines a voluntary organization for that purpose as contemplated affected by armed clashes between the government and armed
by the Geneva Conventions; opposition groups, primarily in Mindanao;
WHEREAS, there existed in the Philippines since 1917 a chapter of 2. Working to minimize the effects of armed hostilities and violence
the American National Red Cross which was terminated in view of on the population;
the independence of the Philippines; and 3. Visiting detainees; and
WHEREAS, the volunteer organizations established in other 4. Promoting awareness of international humanitarian law in the
countries which have ratified or adhered to the Geneva Conventions public and private sectors.16
assist in promoting the health and welfare of their people in peace and National Societies such as the PNRC act as auxiliaries to the public
in war, and through their mutual assistance and cooperation directly authorities of their own countries in the humanitarian field and
and through their international organizations promote better provide a range of services including disaster relief and health and
understanding and sympathy among the people of the world; social programmes.
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of The International Federation of Red Cross (IFRC) and Red Crescent
the Philippines, by virtue of the powers vested in me by the Societies (RCS) Position Paper,17 submitted by the PNRC, is
Constitution as Commander-in-Chief of all the Armed Forces of the instructive with regard to the elements of the specific nature of the
Philippines and pursuant to Proclamation No. 1081 dated September National Societies such as the PNRC, to wit:
21, 1972, and General Order No. 1 dated September 22, 1972, do National Societies, such as the Philippine National Red Cross and its
hereby decree and order that Republic Act No. 95, Charter of the sister Red Cross and Red Crescent Societies, have certain specificities
Philippine National Red Cross (PNRC) as amended by Republic Acts deriving from the 1949 Geneva Convention and the Statutes of the
No. 855 and 6373, be further amended as follows: International Red Cross and Red Crescent Movement (the
Section 1. There is hereby created in the Republic of the Philippines Movement). They are also guided by the seven Fundamental
a body corporate and politic to be the voluntary organization officially Principles of the Red Cross and Red Crescent Movement: Humanity,
designated to assist the Republic of the Philippines in discharging the Impartiality, Neutrality, Independence, Voluntary Service, Unity and
obligations set forth in the Geneva Conventions and to perform such Universality.
other duties as are inherent upon a national Red Cross Society. The A National Society partakes of a sui generis character. It is a protected
national headquarters of this Corporation shall be located in component of the Red Cross movement under Articles 24 and 26 of
Metropolitan Manila. (Emphasis supplied.) the First Geneva Convention, especially in times of armed conflict.
The significant public service rendered by the PNRC can be gleaned These provisions require that the staff of a National Society shall be
from Section 3 of its Charter, which provides: respected and protected in all circumstances. Such protection is not
Section 3. That the purposes of this Corporation shall be as follows: ordinarily afforded by an international treaty to ordinary private
(a) To provide volunteer aid to the sick and wounded of armed forces entities or even non-governmental organisations (NGOs). This sui
in time of war, in accordance with the spirit of and under the generis character is also emphasized by the Fourth Geneva
conditions prescribed by the Geneva Conventions to which the Convention which holds that an Occupying Power cannot require any
Republic of the Philippines proclaimed its adherence; change in the personnel or structure of a National Society. National
societies are therefore organizations that are directly regulated reconciled and harmonized with Article XII, Section 16 of the
by international humanitarian law, in contrast to other ordinary Constitution, instead of using the latter to negate the former.
private entities, including NGOs. By requiring the PNRC to organize under the Corporation Code just
xxxx like any other private corporation, the Decision of July 15, 2009 lost
In addition, National Societies are not only officially recognized by sight of the PNRC’s special status under international humanitarian
their public authorities as voluntary aid societies, auxiliary to the law and as an auxiliary of the State, designated to assist it in
public authorities in the humanitarian field, but also benefit from discharging its obligations under the Geneva Conventions. Although
recognition at the International level. This is considered to be an the PNRC is called to be independent under its Fundamental
element distinguishing National Societies from other organisations Principles, it interprets such independence as inclusive of its duty to
(mainly NGOs) and other forms of humanitarian response. be the government’s humanitarian partner. To be recognized in the
x x x. No other organisation belongs to a world-wide Movement in International Committee, the PNRC must have an autonomous status,
which all Societies have equal status and share equal responsibilities and carry out its humanitarian mission in a neutral and impartial
and duties in helping each other. This is considered to be the essence manner.
of the Fundamental Principle of Universality. However, in accordance with the Fundamental Principle of Voluntary
Furthermore, the National Societies are considered to be auxiliaries Service of National Societies of the Movement, the PNRC must be
to the public authorities in the humanitarian field. x x x. distinguished from private and profit-making entities. It is the main
The auxiliary status of [a] Red Cross Society means that it is at one characteristic of National Societies that they "are not inspired by the
and the same time a private institution and a public service desire for financial gain but by individual commitment and devotion
organization because the very nature of its work implies to a humanitarian purpose freely chosen or accepted as part of the
cooperation with the authorities, a link with the State. In carrying service that National Societies through its volunteers and/or members
out their major functions, Red Cross Societies give their humanitarian render to the Community."23
support to official bodies, in general having larger resources than the The PNRC, as a National Society of the International Red Cross and
Societies, working towards comparable ends in a given sector. Red Crescent Movement, can neither "be classified as an
x x x No other organization has a duty to be its government’s instrumentality of the State, so as not to lose its character of
humanitarian partner while remaining independent.18 (Emphases neutrality" as well as its independence, nor strictly as a private
ours.) corporation since it is regulated by international humanitarian law and
It is in recognition of this sui generis character of the PNRC that R.A. is treated as an auxiliary of the State.24
No. 95 has remained valid and effective from the time of its enactment Based on the above, the sui generis status of the PNRC is now
in March 22, 1947 under the 1935 Constitution and during the sufficiently established.1âwphi1 Although it is neither a subdivision,
effectivity of the 1973 Constitution and the 1987 Constitution. agency, or instrumentality of the government, nor a government-
The PNRC Charter and its amendatory laws have not been questioned owned or -controlled corporation or a subsidiary thereof, as succinctly
or challenged on constitutional grounds, not even in this case before explained in the Decision of July 15, 2009, so much so that
the Court now. respondent, under the Decision, was correctly allowed to hold his
In the Decision, the Court, citing Feliciano v. Commission on Audit,19 position as Chairman thereof concurrently while he served as a
explained that the purpose of the constitutional provision prohibiting Senator, such a conclusion does not ipso facto imply that the PNRC
Congress from creating private corporations was to prevent the is a "private corporation" within the contemplation of the provision
granting of special privileges to certain individuals, families, or of the Constitution, that must be organized under the Corporation
groups, which were denied to other groups. Based on the above Code. As correctly mentioned by Justice Roberto A. Abad, the sui
discussion, it can be seen that the PNRC Charter does not come within generis character of PNRC requires us to approach controversies
the spirit of this constitutional provision, as it does not grant special involving the PNRC on a case-to-case basis.
privileges to a particular individual, family, or group, but creates an In sum, the PNRC enjoys a special status as an important ally and
entity that strives to serve the common good. auxiliary of the government in the humanitarian field in accordance
Furthermore, a strict and mechanical interpretation of Article XII, with its commitments under international law. This Court cannot all
Section 16 of the 1987 Constitution will hinder the State in adopting of a sudden refuse to recognize its existence, especially since the issue
measures that will serve the public good or national interest. It should of the constitutionality of the PNRC Charter was never raised by the
be noted that a special law, R.A. No. 9520, the Philippine Cooperative parties. It bears emphasizing that the PNRC has responded to almost
Code of 2008, and not the general corporation code, vests corporate all national disasters since 1947, and is widely known to provide a
power and capacities upon cooperatives which are private substantial portion of the country’s blood requirements. Its
corporations, in order to implement the State’s avowed policy. humanitarian work is unparalleled. The Court should not shake its
In the Decision of July 15, 2009, the Court recognized the public existence to the core in an untimely and drastic manner that would
service rendered by the PNRC as the government’s partner in the not only have negative consequences to those who depend on it in
observance of its international commitments, to wit: times of disaster and armed hostilities but also have adverse effects
The PNRC is a non-profit, donor-funded, voluntary, humanitarian on the image of the Philippines in the international community. The
organization, whose mission is to bring timely, effective, and sections of the PNRC Charter that were declared void must therefore
compassionate humanitarian assistance for the most vulnerable stay.
without consideration of nationality, race, religion, gender, social WHEREFORE, premises considered, respondent Richard J.
status, or political affiliation. The PNRC provides six major services: Gordon’s Motion for Clarification and/or for Reconsideration and
Blood Services, Disaster Management, Safety Services, Community movant-intervenor PNRC’s Motion for Partial Reconsideration of the
Health and Nursing, Social Services and Voluntary Service. Decision in G.R. No. 175352 dated July 15, 2009 are GRANTED.
The Republic of the Philippines, adhering to the Geneva Conventions, The constitutionality of R.A. No. 95, as amended, the charter of the
established the PNRC as a voluntary organization for the purpose Philippine National Red Cross, was not raised by the parties as an
contemplated in the Geneva Convention of 27 July 1929. x x x.20 issue and should not have been passed upon by this Court. The
(Citations omitted.) structure of the PNRC is sui generis¸ being neither strictly private nor
So must this Court recognize too the country’s adherence to the public in nature. R.A. No. 95 remains valid and constitutional in its
Geneva Convention and respect the unique status of the PNRC in entirety. The dispositive portion of the Decision should therefore be
consonance with its treaty obligations. The Geneva Convention has MODIFIED by deleting the second sentence, to now read as follows:
the force and effect of law.21 Under the Constitution, the Philippines WHEREFORE, we declare that the office of the Chairman of the
adopts the generally accepted principles of international law as part Philippine National Red Cross is not a government office or an office
of the law of the land.22 This constitutional provision must be in a government-owned or controlled corporation for purposes of the
prohibition in Section 13, Article VI of the 1987 Constitution.
SO ORDERED. (ii) the appointment and confirmation power of the President of the
Philippines, as Chief Scout, over the members of the said Board.
G.R. No. 177131 June 7, 2011 The BSP believes that the cited case has been superseded by RA
BOY SCOUTS OF THE PHILIPPINES, Petitioner, 7278. Thereby weakening the case’s conclusion that the BSP is a
vs. government-controlled corporation (sic). The 1987 Administrative
COMMISSION ON AUDIT, Respondent. Code itself, of which the BSP vs. NLRC relied on for some terms,
DECISION defines government-owned and controlled corporations as agencies
LEONARDO-DE CASTRO, J.: organized as stock or non-stock corporations which the BSP, under
The jurisdiction of the Commission on Audit (COA) over the Boy its present charter, is not.
Scouts of the Philippines (BSP) is the subject matter of this Also, the Government, like in other GOCCs, does not have funds
controversy that reached us via petition for prohibition1 filed by the invested in the BSP. What RA 7278 only provides is that the
BSP under Rule 65 of the 1997 Rules of Court. In this petition, the Government or any of its subdivisions, branches, offices, agencies
BSP seeks that the COA be prohibited from implementing its June and instrumentalities can from time to time donate and contribute
18, 2002 Decision,2 its February 21, 2007 Resolution,3 as well as all funds to the BSP.
other issuances arising therefrom, and that all of the foregoing be xxxx
rendered null and void. 4 Also the BSP respectfully believes that the BSP is not
Antecedent Facts and Background of the Case "appropriately regarded as a government instrumentality under the
This case arose when the COA issued Resolution No. 99-0115 on 1987 Administrative Code" as stated in the COA resolution. As
August 19, 1999 ("the COA Resolution"), with the subject defined by Section 2(10) of the said code, instrumentality refers to
"Defining the Commission’s policy with respect to the audit of the "any agency of the National Government, not integrated within the
Boy Scouts of the Philippines." In its whereas clauses, the COA department framework, vested with special functions or jurisdiction
Resolution stated that the BSP was created as a public corporation by law, endowed with some if not all corporate powers,
under Commonwealth Act No. 111, as amended by Presidential administering special funds, and enjoying operational autonomy,
Decree No. 460 and Republic Act No. 7278; that in Boy Scouts of usually through a charter."
the Philippines v. National Labor Relations Commission,6 the The BSP is not an entity administering special funds. It is not even
Supreme Court ruled that the BSP, as constituted under its charter, included in the DECS National Budget. x x x
was a "government-controlled corporation within the meaning of It may be argued also that the BSP is not an "agency" of the
Article IX(B)(2)(1) of the Constitution"; and that "the BSP is Government. The 1987 Administrative Code, merely referred the
appropriately regarded as a government instrumentality under the BSP as an "attached agency" of the DECS as distinguished from an
1987 Administrative Code."7 The COA Resolution also cited its actual line agency of departments that are included in the National
constitutional mandate under Section 2(1), Article IX (D). Finally, Budget. The BSP believes that an "attached agency" is different
the COA Resolution reads: from an "agency." Agency, as defined in Section 2(4) of the
NOW THEREFORE, in consideration of the foregoing premises, the Administrative Code, is defined as any of the various units of the
COMMISSION PROPER HAS RESOLVED, AS IT DOES Government including a department, bureau, office, instrumentality,
HEREBY RESOLVE, to conduct an annual financial audit of the government-owned or controlled corporation or local government or
Boy Scouts of the Philippines in accordance with generally accepted distinct unit therein.
auditing standards, and express an opinion on whether the financial Under the above definition, the BSP is neither a unit of the
statements which include the Balance Sheet, the Income Statement Government; a department which refers to an executive department
and the Statement of Cash Flows present fairly its financial position as created by law (Section 2[7] of the Administrative Code); nor a
and results of operations. bureau which refers to any principal subdivision or unit of any
xxxx department (Section 2[8], Administrative Code).10
BE IT RESOLVED FURTHERMORE, that for purposes of audit Subsequently, requests for reconsideration of the COA Resolution
supervision, the Boy Scouts of the Philippines shall be classified were also made separately by Robert P. Valdellon, Regional Scout
among the government corporations belonging to the Educational, Director, Western Visayas Region, Iloilo City and Eugenio F.
Social, Scientific, Civic and Research Sector under the Corporate Capreso, Council Scout Executive of Calbayog City.11
Audit Office I, to be audited, similar to the subsidiary corporations, In a letter12 dated July 3, 2000, Director Crescencio S. Sunico,
by employing the team audit approach.8 (Emphases supplied.) Corporate Audit Officer (CAO) I of the COA, furnished the BSP
The BSP sought reconsideration of the COA Resolution in a letter9 with a copy of the Memorandum13 dated June 20, 2000 of Atty.
dated November 26, 1999 signed by the BSP National President Santos M. Alquizalas, the COA General Counsel. In said
Jejomar C. Binay, who is now the Vice President of the Republic, Memorandum, the COA General Counsel opined that Republic Act
wherein he wrote: No. 7278 did not supersede the Court’s ruling in Boy Scouts of the
It is the position of the BSP, with all due respect, that it is not Philippines v. National Labor Relations Commission, even though
subject to the Commission’s jurisdiction on the following grounds: said law eliminated the substantial government participation in the
1. We reckon that the ruling in the case of Boy Scouts of the selection of members of the National Executive Board of the BSP.
Philippines vs. National Labor Relations Commission, et al. (G.R. The Memorandum further provides:
No. 80767) classifying the BSP as a government-controlled Analysis of the said case disclosed that the substantial government
corporation is anchored on the "substantial Government participation is only one (1) of the three (3) grounds relied upon by
participation" in the National Executive Board of the BSP. It is to be the Court in the resolution of the case. Other considerations include
noted that the case was decided when the BSP Charter is defined by the character of the BSP’s purposes and functions which has a
Commonwealth Act No. 111 as amended by Presidential Decree public aspect and the statutory designation of the BSP as a "public
460. corporation". These grounds have not been deleted by R.A. No.
However, may we humbly refer you to Republic Act No. 7278 7278. On the contrary, these were strengthened as evidenced by the
which amended the BSP’s charter after the cited case was decided. amendment made relative to BSP’s purposes stated in Section 3 of
The most salient of all amendments in RA No. 7278 is the alteration R.A. No. 7278.
of the composition of the National Executive Board of the BSP. On the argument that BSP is not appropriately regarded as "a
The said RA virtually eliminated the "substantial government government instrumentality" and "agency" of the government, such
participation" in the National Executive Board by removing: (i) the has already been answered and clarified. The Supreme Court has
President of the Philippines and executive secretaries, with the elucidated this matter in the BSP case when it declared that BSP is
exception of the Secretary of Education, as members thereof; and regarded as, both a "government-controlled corporation with an
original charter" and as an "instrumentality" of the Government.
Likewise, it is not disputed that the Administrative Code of 1987 Court declared that, "PAL, having ceased to be a government-owned
designated the BSP as one of the attached agencies of DECS. Being or controlled corporation is no longer under the audit jurisdiction of
an attached agency, however, it does not change its nature as a the COA."23 Claiming that the amendments introduced by Republic
government-controlled corporation with original charter and, Act No. 7278 constituted a supervening event that changed the
necessarily, subject to COA audit jurisdiction. Besides, Section 2(1), BSP’s corporate identity in the same way that the government’s
Article IX-D of the Constitution provides that COA shall have the privatization program changed PAL’s, the BSP makes the case that
power, authority, and duty to examine, audit and settle all accounts the government no longer has control over it; thus, the COA cannot
pertaining to the revenue and receipts of, and expenditures or uses of use the Boy Scouts of the Philippines v. National Labor Relations
funds and property, owned or held in trust by, or pertaining to, the Commission as its basis for the exercise of its jurisdiction and the
Government, or any of its subdivisions, agencies or issuance of COA Resolution No. 99-011.24 The BSP further claims
instrumentalities, including government-owned or controlled as follows:
corporations with original charters.14 It is not far-fetched, in fact, to concede that BSP’s funds and assets
Based on the Memorandum of the COA General Counsel, Director are private in character. Unlike ordinary public corporations, such as
Sunico wrote: provinces, cities, and municipalities, or government-owned and
In view of the points clarified by said Memorandum upholding controlled corporations, such as Land Bank of the Philippines and
COA Resolution No. 99-011, we have to comply with the provisions the Development Bank of the Philippines, the assets and funds of
of the latter, among which is to conduct an annual financial audit of BSP are not derived from any government grant. For its operations,
the Boy Scouts of the Philippines.15 BSP is not dependent in any way on any government appropriation;
In a letter dated November 20, 2000 signed by Director Amorsonia as a matter of fact, it has not even been included in any
B. Escarda, CAO I, the COA informed the BSP that a preliminary appropriations for the government. To be sure, COA has not alleged,
survey of its organizational structure, operations and accounting in its Resolution No. 99-011 or in the Memorandum of its General
system/records shall be conducted on November 21 to 22, 2000.16 Counsel, that BSP received, receives or continues to receive assets
Upon the BSP’s request, the audit was deferred for thirty (30) days. and funds from any agency of the government. The foregoing
The BSP then filed a Petition for Review with Prayer for simply point to the private nature of the funds and assets of
Preliminary Injunction and/or Temporary Restraining Order before petitioner BSP.
the COA. This was denied by the COA in its questioned Decision, xxxx
which held that the BSP is under its audit jurisdiction. The BSP As stated in petitioner’s third argument, BSP’s assets and funds
moved for reconsideration but this was likewise denied under its were never acquired from the government. Its operations are not in
questioned Resolution.17 any way financed by the government, as BSP has never been
This led to the filing by the BSP of this petition for prohibition with included in any appropriations act for the government. Neither has
preliminary injunction and temporary restraining order against the the government invested funds with BSP. BSP, has not been, at any
COA. time, a user of government property or funds; nor have properties of
The Issue the government been held in trust by BSP. This is precisely the
As stated earlier, the sole issue to be resolved in this case is whether reason why, until this time, the COA has not attempted to subject
the BSP falls under the COA’s audit jurisdiction. BSP to its audit jurisdiction. x x x.25
The Parties’ Respective Arguments To summarize its other arguments, the BSP contends that it is not a
The BSP contends that Boy Scouts of the Philippines v. National government-owned or controlled corporation; neither is it an
Labor Relations Commission is inapplicable for purposes of instrumentality, agency, or subdivision of the government.
determining the audit jurisdiction of the COA as the issue therein In its Comment,26 the COA argues as follows:
was the jurisdiction of the National Labor Relations Commission 1. The BSP is a public corporation created under Commonwealth
over a case for illegal dismissal and unfair labor practice filed by Act No. 111 dated October 31, 1936, and whose functions relate to
certain BSP employees.18 the fostering of public virtues of citizenship and patriotism and the
While the BSP concedes that its functions do relate to those that the general improvement of the moral spirit and fiber of the youth. The
government might otherwise completely assume on its own, it avers manner of creation and the purpose for which the BSP was created
that this alone was not determinative of the COA’s audit jurisdiction indubitably prove that it is a government agency.
over it. The BSP further avers that the Court in Boy Scouts of the 2. Being a government agency, the funds and property owned or
Philippines v. National Labor Relations Commission "simply stated held in trust by the BSP are subject to the audit authority of
x x x that in respect of functions, the BSP is akin to a public respondent Commission on Audit pursuant to Section 2 (1), Article
corporation" but this was not synonymous to holding that the BSP is IX-D of the 1987 Constitution.
a government corporation or entity subject to audit by the COA. 19 3. Republic Act No. 7278 did not change the character of the BSP as
The BSP contends that Republic Act No. 7278 introduced crucial a government-owned or controlled corporation and government
amendments to its charter; hence, the findings of the Court in Boy instrumentality.27
Scouts of the Philippines v. National Labor Relations Commission The COA maintains that the functions of the BSP that include,
are no longer valid as the government has ceased to play a among others, the teaching to the youth of patriotism, courage, self-
controlling influence in it. The BSP claims that the pronouncements reliance, and kindred virtues, are undeniably sovereign functions
of the Court therein must be taken only within the context of that enshrined under the Constitution and discussed by the Court in Boy
case; that the Court had categorically found that its assets were Scouts of the Philippines v. National Labor Relations Commission.
acquired from the Boy Scouts of America and not from the The COA contends that any attempt to classify the BSP as a private
Philippine government, and that its operations are financed chiefly corporation would be incomprehensible since no less than the law
from membership dues of the Boy Scouts themselves as well as which created it had designated it as a public corporation and its
from property rentals; and that "the BSP may correctly be statutory mandate embraces performance of sovereign functions.28
characterized as non-governmental, and hence, beyond the audit The COA claims that the only reason why the BSP employees fell
jurisdiction of the COA." It further claims that the designation by within the scope of the Civil Service Commission even before the
the Court of the BSP as a government agency or instrumentality is 1987 Constitution was the fact that it was a government-owned or
mere obiter dictum.20 controlled corporation; that as an attached agency of the Department
The BSP maintains that the provisions of Republic Act No. 7278 of Education, Culture and Sports (DECS), the BSP is an agency of
suggest that "governance of BSP has come to be overwhelmingly a the government; and that the BSP is a chartered institution under
private affair or nature, with government participation restricted to Section 1(12) of the Revised Administrative Code of 1987,
the seat of the Secretary of Education, Culture and Sports."21 It cites embraced under the term government instrumentality.29
Philippine Airlines Inc. v. Commission on Audit22 wherein the
The COA concludes that being a government agency, the funds and declaration of the BSP as a government corporation. Citing
property owned or held by the BSP are subject to the audit authority Philippine Society for the Prevention of Cruelty to Animals v.
of the COA pursuant to Section 2(1), Article IX (D) of the 1987 Commission on Audit,40 the COA further alleges:
Constitution. The true criterion, therefore, to determine whether a corporation is
In support of its arguments, the COA cites The Veterans Federation public or private is found in the totality of the relation of the
of the Philippines (VFP) v. Reyes,30 wherein the Court held that corporation to the State. If the corporation is created by the State as
among the reasons why the VFP is a public corporation is that its the latter’s own agency or instrumentality to help it in carrying out
charter, Republic Act No. 2640, designates it as one. Furthermore, its governmental functions, then that corporation is considered
the COA quotes the Court as saying in that case: public; otherwise, it is private. x x x.41
In several cases, we have dealt with the issue of whether certain For its part, in its Comment42 filed on December 3, 2010, the BSP
specific activities can be classified as sovereign functions. These submits that its charter, Commonwealth Act No. 111, as amended
cases, which deal with activities not immediately apparent to be by Republic Act No. 7278, is constitutional as it does not violate
sovereign functions, upheld the public sovereign nature of Section 16, Article XII of the Constitution. The BSP alleges that
operations needed either to promote social justice or to stimulate "while [it] is not a public corporation within the purview of COA’s
patriotic sentiments and love of country. audit jurisdiction, neither is it a private corporation created by
xxxx special law falling within the ambit of the constitutional prohibition
Petitioner claims that its funds are not public funds because no x x x."43 The BSP further alleges:
budgetary appropriations or government funds have been released to Petitioner’s purpose is embodied in Section 3 of C.A. No. 111, as
the VFP directly or indirectly from the DBM, and because VFP amended by Section 1 of R.A. No. 7278, thus:
funds come from membership dues and lease rentals earned from xxxx
administering government lands reserved for the VFP. A reading of the foregoing provision shows that petitioner was
The fact that no budgetary appropriations have been released to the created to advance the interest of the youth, specifically of young
VFP does not prove that it is a private corporation. The DBM indeed boys, and to mold them into becoming good citizens. Ultimately, the
did not see it fit to propose budgetary appropriations to the VFP, creation of petitioner redounds to the benefit, not only of those boys,
having itself believed that the VFP is a private corporation. If the but of the public good or welfare. Hence, it can be said that
DBM, however, is mistaken as to its conclusion regarding the nature petitioner’s purpose and functions are more of a public rather than a
of VFP's incorporation, its previous assertions will not prevent private character. Petitioner caters to all boys who wish to join the
future budgetary appropriations to the VFP. The erroneous organization without any distinction. It does not limit its
application of the law by public officers does not bar a subsequent membership to a particular class of boys. Petitioner’s members are
correct application of the law.31 (Citations omitted.) trained in scoutcraft and taught patriotism, civic consciousness and
The COA points out that the government is not precluded by law responsibility, courage, self-reliance, discipline and kindred virtues,
from extending financial support to the BSP and adding to its funds, and moral values, preparing them to become model citizens and
and that "as a government instrumentality which continues to outstanding leaders of the country.44
perform a vital function imbued with public interest and reflective of The BSP reiterates its stand that the public character of its purpose
the government’s policy to stimulate patriotic sentiments and love of and functions do not place it within the ambit of the audit
country, the BSP’s funds from whatever source are public funds, jurisdiction of the COA as it lacks the government ownership or
and can be used solely for public purpose in pursuance of the control that the Constitution requires before an entity may be subject
provisions of Republic Act No. [7278]."32 of said jurisdiction.45 It avers that it merely stated in its Reply that
The COA claims that the fact that it has not yet audited the BSP’s the withdrawal of government control is akin to privatization, but it
funds may not bar the subsequent exercise of its audit jurisdiction. does not necessarily mean that petitioner is a private corporation.46
The BSP filed its Reply33 on August 29, 2007 maintaining that its The BSP claims that it has a unique characteristic which "neither
statutory designation as a "public corporation" and the public classifies it as a purely public nor a purely private corporation";47
character of its purpose and functions are not determinative of the that it is not a quasi-public corporation; and that it may belong to a
COA’s audit jurisdiction; reiterating its stand that Boy Scouts of the different class altogether.48
Philippines v. National Labor Relations Commission is not The BSP claims that assuming arguendo that it is a private
applicable anymore because the aspect of government ownership corporation, its creation is not contrary to the purpose of Section 16,
and control has been removed by Republic Act No. 7278; and Article XII of the Constitution; and that the evil sought to be
concluding that the funds and property that it either owned or held in avoided by said provision is inexistent in the enactment of the BSP’s
trust are not public funds and are not subject to the COA’s audit charter,49 as, (i) it was not created for any pecuniary purpose; (ii)
jurisdiction. those who will primarily benefit from its creation are not its officers
Thereafter, considering the BSP’s claim that it is a private but its entire membership consisting of boys being trained in
corporation, this Court, in a Resolution34 dated July 20, 2010, scoutcraft all over the country; (iii) it caters to all boys who wish to
required the parties to file, within a period of twenty (20) days from join the organization without any distinction; and (iv) it does not
receipt of said Resolution, their respective comments on the issue of limit its membership to a particular class or group of boys. Thus, the
whether Commonwealth Act No. 111, as amended by Republic Act enactment of its charter confers no special privilege to particular
No. 7278, is constitutional. individuals, families, or groups; nor does it bring about the danger
In compliance with the Court’s resolution, the parties filed their of granting undue favors to certain groups to the prejudice of others
respective Comments. or of the interest of the country, which are the evils sought to be
In its Comment35 dated October 22, 2010, the COA argues that the prevented by the constitutional provision involved.50
constitutionality of Commonwealth Act No. 111, as amended, is not Finally, the BSP states that the presumption of constitutionality of a
determinative of the resolution of the present controversy on the legislative enactment prevails absent any clear showing of its
COA’s audit jurisdiction over petitioner, and in fact, the controversy repugnancy to the Constitution.51
may be resolved on other grounds; thus, the requisites before a The Ruling of the Court
judicial inquiry may be made, as set forth in Commissioner of After looking at the legislative history of its amended charter and
Internal Revenue v. Court of Tax Appeals,36 have not been fully carefully studying the applicable laws and the arguments of both
met.37 Moreover, the COA maintains that behind every law lies the parties, we find that the BSP is a public corporation and its funds are
presumption of constitutionality.38 The COA likewise argues that subject to the COA’s audit jurisdiction.
contrary to the BSP’s position, repeal of a law by implication is not The BSP Charter (Commonwealth Act No. 111, approved on
favored.39 Lastly, the COA claims that there was no violation of October 31, 1936), entitled "An Act to Create a Public Corporation
Section 16, Article XII of the 1987 Constitution with the creation or to be Known as the Boy Scouts of the Philippines, and to Define its
Powers and Purposes" created the BSP as a "public corporation" to "Sec. 3. The purpose of this corporation shall be to promote through
serve the following public interest or purpose: organization and cooperation with other agencies, the ability of boys
Sec. 3. The purpose of this corporation shall be to promote through to do useful things for themselves and others, to train them in
organization and cooperation with other agencies, the ability of boys scoutcraft, and to inculcate in them patriotism, civic consciousness
to do useful things for themselves and others, to train them in and responsibility, courage, self-reliance, discipline and kindred
scoutcraft, and to inculcate in them patriotism, civic consciousness virtues, and moral values, using the method which are in common
and responsibility, courage, self-reliance, discipline and kindred use by boy scouts."
virtues, and moral values, using the method which are in common Sec. 2. Section 4 of Commonwealth Act No. 111, as amended, is
use by boy scouts. hereby repealed and in lieu thereof, Section 4 shall read as follows:
Presidential Decree No. 460, approved on May 17, 1974, amended "Sec. 4. The President of the Philippines shall be the Chief Scout of
Commonwealth Act No. 111 and provided substantial changes in the Boy Scouts of the Philippines."
the BSP organizational structure. Pertinent provisions are quoted Sec. 3. Sections 5, 6, 7 and 8 of Commonwealth Act No. 111, as
below: amended, are hereby amended to read as follows:
Section II. Section 5 of the said Act is also amended to read as "Sec. 5. The governing body of the said corporation shall consist of
follows: a National Executive Board, the members of which shall be Filipino
The governing body of the said corporation shall consist of a citizens of good moral character. The Board shall be composed of
National Executive Board composed of (a) the President of the the following:
Philippines or his representative; (b) the charter and life members of "(a) One (1) charter member of the Boy Scouts of the Philippines
the Boy Scouts of the Philippines; (c) the Chairman of the Board of who shall be elected by the members of the National Council at its
Trustees of the Philippine Scouting Foundation; (d) the Regional meeting called for this purpose;
Chairman of the Scout Regions of the Philippines; (e) the Secretary "(b) The regional chairmen of the scout regions who shall be elected
of Education and Culture, the Secretary of Social Welfare, the by the representatives of all the local scout councils of the region
Secretary of National Defense, the Secretary of Labor, the Secretary during its meeting called for this purpose: Provided, That a
of Finance, the Secretary of Youth and Sports, and the Secretary of candidate for regional chairman need not be the chairman of a local
Local Government and Community Development; (f) an equal scout council;
number of individuals from the private sector; (g) the National "(c) The Secretary of Education, Culture and Sports;
President of the Girl Scouts of the Philippines; (h) one Scout of "(d) The National President of the Girl Scouts of the Philippines;
Senior age from each Scout Region to represent the boy "(e) One (1) senior scout, each from Luzon, Visayas and Mindanao
membership; and (i) three representatives of the cultural minorities. areas, to be elected by the senior scout delegates of the local scout
Except for the Regional Chairman who shall be elected by the councils to the scout youth forums in their respective areas, in its
Regional Scout Councils during their annual meetings, and the meeting called for this purpose, to represent the boy scout
Scouts of their respective regions, all members of the National membership;
Executive Board shall be either by appointment or cooption, subject "(f) Twelve (12) regular members to be elected by the members of
to ratification and confirmation by the Chief Scout, who shall be the the National Council in its meeting called for this purpose;
Head of State. Vacancies in the Executive Board shall be filled by a "(g) At least ten (10) but not more than fifteen (15) additional
majority vote of the remaining members, subject to ratification and members from the private sector who shall be elected by the
confirmation by the Chief Scout. The by-laws may prescribe the members of the National Executive Board referred to in the
number of members of the National Executive Board necessary to immediately preceding paragraphs (a), (b), (c), (d), (e) and (f) at the
constitute a quorum of the board, which number may be less than a organizational meeting of the newly reconstituted National
majority of the whole number of the board. The National Executive Executive Board which shall be held immediately after the meeting
Board shall have power to make and to amend the by-laws, and, by of the National Council wherein the twelve (12) regular members
a two-thirds vote of the whole board at a meeting called for this and the one (1) charter member were elected.
purpose, may authorize and cause to be executed mortgages and xxxx
liens upon the property of the corporation. "Sec. 8. Any donation or contribution which from time to time may
Subsequently, on March 24, 1992, Republic Act No. 7278 further be made to the Boy Scouts of the Philippines by the Government or
amended Commonwealth Act No. 111 "by strengthening the any of its subdivisions, branches, offices, agencies or
volunteer and democratic character" of the BSP and reducing instrumentalities or by a foreign government or by private, entities
government representation in its governing body, as follows: and individuals shall be expended by the National Executive Board
Section 1. Sections 2 and 3 of Commonwealth Act. No. 111, as in pursuance of this Act.
amended, is hereby amended to read as follows: The BSP as a Public Corporation under Par. 2, Art. 2 of the Civil
"Sec. 2. The said corporation shall have the powers of perpetual Code
succession, to sue and be sued; to enter into contracts; to acquire, There are three classes of juridical persons under Article 44 of the
own, lease, convey and dispose of such real and personal estate, land Civil Code and the BSP, as presently constituted under Republic Act
grants, rights and choses in action as shall be necessary for corporate No. 7278, falls under the second classification. Article 44 reads:
purposes, and to accept and receive funds, real and personal Art. 44. The following are juridical persons:
property by gift, devise, bequest or other means, to conduct fund- (1) The State and its political subdivisions;
raising activities; to adopt and use a seal, and the same to alter and (2) Other corporations, institutions and entities for public
destroy; to have offices and conduct its business and affairs in interest or purpose created by law; their personality begins as
Metropolitan Manila and in the regions, provinces, cities, soon as they have been constituted according to law;
municipalities, and barangays of the Philippines, to make and adopt (3) Corporations, partnerships and associations for private interest
by-laws, rules and regulations not inconsistent with this Act and the or purpose to which the law grants a juridical personality, separate
laws of the Philippines, and generally to do all such acts and things, and distinct from that of each shareholder, partner or member.
including the establishment of regulations for the election of (Emphases supplied.)
associates and successors, as may be necessary to carry into effect The BSP, which is a corporation created for a public interest or
the provisions of this Act and promote the purposes of said purpose, is subject to the law creating it under Article 45 of the Civil
corporation: Provided, That said corporation shall have no power to Code, which provides:
issue certificates of stock or to declare or pay dividends, its Art. 45. Juridical persons mentioned in Nos. 1 and 2 of the
objectives and purposes being solely of benevolent character and not preceding article are governed by the laws creating or
for pecuniary profit of its members. recognizing them.
Private corporations are regulated by laws of general application on Economy and Patrimony." Section 1 of Article XII is quoted as
the subject. follows:
Partnerships and associations for private interest or purpose are SECTION 1. The goals of the national economy are a more
governed by the provisions of this Code concerning partnerships. equitable distribution of opportunities, income, and wealth; a
(Emphasis and underscoring supplied.) sustained increase in the amount of goods and services produced by
The purpose of the BSP as stated in its amended charter shows that it the nation for the benefit of the people; and an expanding
was created in order to implement a State policy declared in Article productivity as the key to raising the quality of life for all, especially
II, Section 13 of the Constitution, which reads: the underprivileged.
ARTICLE II - DECLARATION OF PRINCIPLES AND STATE The State shall promote industrialization and full employment based
POLICIES on sound agricultural development and agrarian reform, through
Section 13. The State recognizes the vital role of the youth in nation- industries that make full and efficient use of human and natural
building and shall promote and protect their physical, moral, spiritual, resources, and which are competitive in both domestic and foreign
intellectual, and social well-being. It shall inculcate in the youth markets. However, the State shall protect Filipino enterprises against
patriotism and nationalism, and encourage their involvement in unfair foreign competition and trade practices.
public and civic affairs. In the pursuit of these goals, all sectors of the economy and all
Evidently, the BSP, which was created by a special law to serve a regions of the country shall be given optimum opportunity to
public purpose in pursuit of a constitutional mandate, comes within develop. Private enterprises, including corporations, cooperatives,
the class of "public corporations" defined by paragraph 2, Article 44 and similar collective organizations, shall be encouraged to broaden
of the Civil Code and governed by the law which creates it, pursuant the base of their ownership.
to Article 45 of the same Code. The scope and coverage of Section 16, Article XII of the
The BSP’s Classification Under the Administrative Code of 1987 Constitution can be seen from the aforementioned declaration of
The public, rather than private, character of the BSP is recognized state policies and goals which pertains to national economy and
by the fact that, along with the Girl Scouts of the Philippines, it is patrimony and the interests of the people in economic development.
classified as an attached agency of the DECS under Executive Order Section 16, Article XII deals with "the formation, organization, or
No. 292, or the Administrative Code of 1987, which states: regulation of private corporations,"52 which should be done through
TITLE VI – EDUCATION, CULTURE AND SPORTS a general law enacted by Congress, provides for an exception, that
Chapter 8 – Attached Agencies is: if the corporation is government owned or controlled; its creation
SEC. 20. Attached Agencies. – The following agencies are hereby is in the interest of the common good; and it meets the test of
attached to the Department: economic viability. The rationale behind Article XII, Section 16 of
xxxx the 1987 Constitution was explained in Feliciano v. Commission on
(12) Boy Scouts of the Philippines; Audit,53 in the following manner:
(13) Girl Scouts of the Philippines. The Constitution emphatically prohibits the creation of private
The administrative relationship of an attached agency to the corporations except by a general law applicable to all citizens. The
department is defined in the Administrative Code of 1987 as purpose of this constitutional provision is to ban private
follows: corporations created by special charters, which historically gave
BOOK IV certain individuals, families or groups special privileges denied to
THE EXECUTIVE BRANCH other citizens.54 (Emphasis added.)
Chapter 7 – ADMINISTRATIVE RELATIONSHIP It may be gleaned from the above discussion that Article XII,
SEC. 38. Definition of Administrative Relationship. – Unless Section 16 bans the creation of "private corporations" by special
otherwise expressly stated in the Code or in other laws defining the law. The said constitutional provision should not be construed so as
special relationships of particular agencies, administrative to prohibit the creation of public corporations or a corporate
relationships shall be categorized and defined as follows: agency or instrumentality of the government intended to serve a
xxxx public interest or purpose, which should not be measured on the
(3) Attachment. – (a) This refers to the lateral relationship between basis of economic viability, but according to the public interest or
the department or its equivalent and the attached agency or purpose it serves as envisioned by paragraph (2), of Article 44 of the
corporation for purposes of policy and program coordination. The Civil Code and the pertinent provisions of the Administrative Code
coordination may be accomplished by having the department of 1987.
represented in the governing board of the attached agency or The BSP is a Public Corporation Not Subject to the Test of
corporation, either as chairman or as a member, with or without Government Ownership or Control and Economic Viability
voting rights, if this is permitted by the charter; having the attached The BSP is a public corporation or a government agency or
corporation or agency comply with a system of periodic reporting instrumentality with juridical personality, which does not fall within
which shall reflect the progress of programs and projects; and the constitutional prohibition in Article XII, Section 16,
having the department or its equivalent provide general policies notwithstanding the amendments to its charter. Not all corporations,
through its representative in the board, which shall serve as the which are not government owned or controlled, are ipso facto to be
framework for the internal policies of the attached corporation or considered private corporations as there exists another distinct class
agency. (Emphasis ours.) of corporations or chartered institutions which are otherwise known
As an attached agency, the BSP enjoys operational autonomy, as as "public corporations." These corporations are treated by law as
long as policy and program coordination is achieved by having at agencies or instrumentalities of the government which are not subject
least one representative of government in its governing board, which to the tests of ownership or control and economic viability but to
in the case of the BSP is the DECS Secretary. In this sense, the BSP different criteria relating to their public purposes/interests or
is not under government control or "supervision and control." Still constitutional policies and objectives and their administrative
this characteristic does not make the attached chartered agency a relationship to the government or any of its Departments or Offices.
private corporation covered by the constitutional proscription in Classification of Corporations Under Section 16, Article XII of the
question. Constitution on National Economy and Patrimony
Art. XII, Sec. 16 of the Constitution refers to "private The dissenting opinion of Associate Justice Antonio T. Carpio,
corporations" created by government for proprietary or citing a line of cases, insists that the Constitution recognizes only
economic/business purposes two classes of corporations: private corporations under a general
At the outset, it should be noted that the provision of Section 16 in law, and government-owned or controlled corporations created by
issue is found in Article XII of the Constitution, entitled "National special charters.
We strongly disagree. Section 16, Article XII should not be operational autonomy, usually through a charter. This term includes
construed so as to prohibit Congress from creating public regulatory agencies, chartered institutions and government-owned or
corporations. In fact, Congress has enacted numerous laws creating controlled corporations.
public corporations or government agencies or instrumentalities
vested with corporate powers. Moreover, Section 16, Article XII, xxxx
which relates to National Economy and Patrimony, could not have (12) "Chartered institution" refers to any agency organized or
tied the hands of Congress in creating public corporations to serve operating under a special charter, and vested by law with functions
any of the constitutional policies or objectives. relating to specific constitutional policies or objectives. This term
In his dissent, Justice Carpio contends that this ponente introduces includes the state universities and colleges and the monetary authority
"a totally different species of corporation, which is neither a private of the State.
corporation nor a government owned or controlled corporation" and, (13) "Government-owned or controlled corporation" refers to any
in so doing, is missing the fact that the BSP, "which was created as a agency organized as a stock or non-stock corporation, vested with
non-stock, non-profit corporation, can only be either a private functions relating to public needs whether governmental or
corporation or a government owned or controlled corporation." proprietary in nature, and owned by the Government directly or
Note that in Boy Scouts of the Philippines v. National Labor through its instrumentalities either wholly, or, where applicable as in
Relations Commission, the BSP, under its former charter, was the case of stock corporations, to the extent of at least fifty-one (51)
regarded as both a government owned or controlled corporation with per cent of its capital stock: Provided, That government-owned or
original charter and a "public corporation." The said case controlled corporations may be further categorized by the Department
pertinently stated: of the Budget, the Civil Service Commission, and the Commission on
While the BSP may be seen to be a mixed type of entity, combining Audit for purposes of the exercise and discharge of their respective
aspects of both public and private entities, we believe that powers, functions and responsibilities with respect to such
considering the character of its purposes and its functions, the corporations.
statutory designation of the BSP as "a public corporation" and the Assuming for the sake of argument that the BSP ceases to be owned
substantial participation of the Government in the selection of or controlled by the government because of reduction of the number
members of the National Executive Board of the BSP, the BSP, as of representatives of the government in the BSP Board, it does not
presently constituted under its charter, is a government-controlled follow that it also ceases to be a government instrumentality as it still
corporation within the meaning of Article IX (B) (2) (1) of the retains all the characteristics of the latter as an attached agency of the
Constitution. DECS under the Administrative Code. Vesting corporate powers to
We are fortified in this conclusion when we note that the an attached agency or instrumentality of the government is not
Administrative Code of 1987 designates the BSP as one of the constitutionally prohibited and is allowed by the above-mentioned
attached agencies of the Department of Education, Culture and provisions of the Civil Code and the 1987 Administrative Code.
Sports ("DECS"). An "agency of the Government" is defined as Economic Viability and Ownership and Control Tests Inapplicable
referring to any of the various units of the Government including a to Public Corporations
department, bureau, office, instrumentality, government-owned or - As presently constituted, the BSP still remains an instrumentality of
controlled corporation, or local government or distinct unit therein. the national government. It is a public corporation created by law for
"Government instrumentality" is in turn defined in the 1987 a public purpose, attached to the DECS pursuant to its Charter and
Administrative Code in the following manner: the Administrative Code of 1987. It is not a private corporation
Instrumentality - refers to any agency of the National Government, which is required to be owned or controlled by the government and
not integrated within the department framework, vested with special be economically viable to justify its existence under a special law.
functions or jurisdiction by law, endowed with some if not all The dissent of Justice Carpio also submits that by recognizing "a
corporate powers, administering special funds, and enjoying new class of public corporation(s)" created by special charter that
operational autonomy usually through a charter. This term includes will not be subject to the test of economic viability, the
regulatory agencies, chartered institutions and government-owned or constitutional provision will be circumvented.
controlled corporations. However, a review of the Record of the 1986 Constitutional
The same Code describes a "chartered institution" in the following Convention reveals the intent of the framers of the highest law of
terms: our land to distinguish between government corporations
Chartered institution - refers to any agency organized or operating performing governmental functions and corporations involved in
under a special charter, and vested by law with functions relating to business or proprietary functions:
specific constitutional policies or objectives. This term includes the THE PRESIDENT. Commissioner Foz is recognized.
state universities and colleges, and the monetary authority of the MR. FOZ. Madam President, I support the proposal to insert
State. "ECONOMIC VIABILITY" as one of the grounds for organizing
We believe that the BSP is appropriately regarded as "a government government corporations. x x x.
instrumentality" under the 1987 Administrative Code. MR. OPLE. Madam President, the reason for this concern is really
It thus appears that the BSP may be regarded as both a "government that when the government creates a corporation, there is a sense in
controlled corporation with an original charter" and as an which this corporation becomes exempt from the test of economic
"instrumentality" of the Government within the meaning of Article performance. We know what happened in the past. If a government
IX (B) (2) (1) of the Constitution. x x x.55 (Emphases supplied.) corporation loses, then it makes its claim upon the taxpayers’ money
The existence of public or government corporate or juridical entities through new equity infusions from the government and what is
or chartered institutions by legislative fiat distinct from private always invoked is the common good. x x x
corporations and government owned or controlled corporation is best Therefore, when we insert the phrase "ECONOMIC VIABILITY"
exemplified by the 1987 Administrative Code cited above, which we together with the "common good," this becomes a restraint on future
quote in part: enthusiasts for state capitalism to excuse themselves from the
Sec. 2. General Terms Defined. – Unless the specific words of the responsibility of meeting the market test so that they become viable.
text, or the context as a whole, or a particular statute, shall require a x x x.
different meaning: xxxx
xxxx THE PRESIDENT. Commissioner Quesada is recognized.
(10) "Instrumentality" refers to any agency of the National MS. QUESADA. Madam President, may we be clarified by the
Government, not integrated within the department framework, vested committee on what is meant by economic viability?
with special functions or jurisdiction by law, endowed with some if THE PRESIDENT. Please proceed.
not all corporate powers, administering special funds, and enjoying
MR. MONSOD. Economic viability normally is determined by cost- even efficient in their proper functions. Secondly, they should not go
benefit ratio that takes into consideration all benefits, including into activities that the private sector can do better.
economic external as well as internal benefits. These are what they MR. PADILLA. There is no question about corporations performing
call externalities in economics, so that these are not strictly financial governmental functions or functions that are impressed with public
criteria. Economic viability involves what we call economic returns interest. But the question is with regard to matters that are covered,
or benefits of the country that are not quantifiable in financial terms. perhaps not exhaustively, by private enterprise. It seems that under
x x x. this provision the only qualification is economic viability and
xxxx common good, but shall government, through government-
MS. QUESADA. So, would this particular formulation now really controlled corporations, compete with private enterprise?
limit the entry of government corporations into activities engaged in MR. MONSOD. No, Madam President. As we said, the government
by corporations? should not engage in activities that private enterprise is engaged in
MR. MONSOD. Yes, because it is also consistent with the and can do better. x x x.56 (Emphases supplied.)
economic philosophy that this Commission approved – that there Thus, the test of economic viability clearly does not apply to public
should be minimum government participation and intervention in corporations dealing with governmental functions, to which
the economy. category the BSP belongs. The discussion above conveys the
MS. QUESDA. Sometimes this Commission would just refer to constitutional intent not to apply this constitutional ban on the
Congress to provide the particular requirements when the creation of public corporations where the economic viability test
government would get into corporations. But this time around, we would be irrelevant. The said test would only apply if the
specifically mentioned economic viability. x x x. corporation is engaged in some economic activity or business
MR. VILLEGAS. Commissioner Ople will restate the reason for his function for the government.
introducing that amendment. It is undisputed that the BSP performs functions that are impressed
MR. OPLE. I am obliged to repeat what I said earlier in moving for with public interest. In fact, during the consideration of the Senate
this particular amendment jointly with Commissioner Foz. During Bill that eventually became Republic Act No. 7278, which amended
the past three decades, there had been a proliferation of government the BSP Charter, one of the bill’s sponsors, Senator Joey Lina,
corporations, very few of which have succeeded, and many of which described the BSP as follows:
are now earmarked by the Presidential Reorganization Commission Senator Lina. Yes, I can only think of two organizations involving
for liquidation because they failed the economic test. x x x. the masses of our youth, Mr. President, that should be given this
xxxx kind of a privilege – the Boy Scouts of the Philippines and the Girl
MS. QUESADA. But would not the Commissioner say that the Scouts of the Philippines. Outside of these two groups, I do not
reason why many of the government-owned or controlled think there are other groups similarly situated.
corporations failed to come up with the economic test is due to the The Boy Scouts of the Philippines has a long history of providing
management of these corporations, and not the idea itself of value formation to our young, and considering how huge the
government corporations? It is a problem of efficiency and population of the young people is, at this point in time, and also
effectiveness of management of these corporations which could be considering the importance of having an organization such as this
remedied, not by eliminating government corporations or the idea of that will inculcate moral uprightness among the young people, and
getting into state-owned corporations, but improving management further considering that the development of these young people at
which our technocrats should be able to do, given the training and that tender age of seven to sixteen is vital in the development of the
the experience. country producing good citizens, I believe that we can make an
MR. OPLE. That is part of the economic viability, Madam exception of the Boy Scouting movement of the Philippines from
President. this general prohibition against providing tax exemption and
MS. QUESADA. So, is the Commissioner saying then that the privileges.57
Filipinos will benefit more if these government-controlled Furthermore, this Court cannot agree with the dissenting opinion
corporations were given to private hands, and that there will be more which equates the changes introduced by Republic Act No. 7278 to
goods and services that will be affordable and within the reach of the BSP Charter as clear manifestation of the intent of Congress "to
the ordinary citizens? return the BSP to the private sector." It was not the intent of
MR. OPLE. Yes. There is nothing here, Madam President, that will Congress in enacting Republic Act No. 7278 to give up all interests
prevent the formation of a government corporation in accordance in this basic youth organization, which has been its partner in
with a special charter given by Congress. However, we are raising forming responsible citizens for decades.
the standard a little bit so that, in the future, corporations established In fact, as may be seen in the deliberation of the House Bills that
by the government will meet the test of the common good but within eventually resulted to Republic Act No. 7278, Congress worked
that framework we should also build a certain standard of economic closely with the BSP to rejuvenate the organization, to bring it back
viability. to its former glory reached under its original charter,
xxxx Commonwealth Act No. 111, and to correct the perceived ills
THE PRESIDENT. Commissioner Padilla is recognized. introduced by the amendments to its Charter under Presidential
MR. PADILLA. This is an inquiry to the committee. With regard to Decree No. 460. The BSP suffered from low morale and decrease in
corporations created by a special charter for government-owned or number because the Secretaries of the different departments in
controlled corporations, will these be in the pioneer fields or in government who were too busy to attend the meetings of the BSP’s
places where the private enterprise does not or cannot enter? Or is National Executive Board ("the Board") sent representatives who, as
this so general that these government corporations can compete with it turned out, changed from meeting to meeting. Thus, the Scouting
private corporations organized under a general law? Councils established in the provinces and cities were not in touch
MR. MONSOD. Madam President, x x x. There are two types of with what was happening on the national level, but they were left to
government corporations – those that are involved in performing implement what was decided by the Board.58
governmental functions, like garbage disposal, Manila waterworks, A portion of the legislators’ discussion is quoted below to clearly
and so on; and those government corporations that are involved in show their intent:
business functions. As we said earlier, there are two criteria that HON. DEL MAR. x x x I need not mention to you the value and the
should be followed for corporations that want to go into business. tremendous good that the Boy Scout Movement has done not only
First is for government corporations to first prove that they can be for the youth in particular but for the country in general. And that is
efficient in the areas of their proper functions. This is one of the why, if we look around, our past and present national leaders,
problems now because they go into all kinds of activities but are not prominent men in the various fields of endeavor, public servants in
government offices, and civic leaders in the communities all over
the land, and not only in our country but all over the world many if anybody filing a complaint against the organization in the SEC and
not most of them have at one time or another been beneficiaries of the SEC might suspend the registration permit of the organization
the Scouting Movement. And so, it is along this line, Mr. Chairman, and we will not be able to operate.
that we would like to have the early approval of this measure if only HON. AQUINO: Well, that I think would be a problem that will not
to pay back what we owe much to the Scouting Movement. Now, be exclusive to corporations registered with the SEC because even if
going to the meat of the matter, Mr. Chairman, if I may just – the you are government corporation, court action may be taken against
Scouting Movement was enacted into law in October 31, 1936 under you in other judicial bodies because the SEC is simply another
Commonwealth Act No. 111. x x x [W]e were acknowledged as the quasi-judicial body. But, I think, the first point would be very
third biggest scouting organization in the world x x x. And to our interesting, the first point that you raised. In effect, what you are
mind, Mr. Chairman, this erratic growth and this decrease in saying is that with the legislative mandate creating your charter, in
membership [number] is because of the bad policy measures that effect, you have been given some sort of a franchise with this
were enunciated with the enactment or promulgation by the movement.
President before of Presidential Decree No. 460 which we feel is the MR. ESCUDERO: Yes.
culprit of the ills that is flagging the Boy Scout Movement today. HON. AQUINO: Exclusive franchise of that movement?
And so, this is specifically what we are attacking, Mr. Chairman, the MR. ESCUDERO: Yes.
disenfranchisement of the National Council in the election of the HON. AQUINO: Well, that’s very well taken so I will proceed with
national board. x x x. And so, this is what we would like to be other issues, Mr. Chairman. x x x.60 (Emphases added.)
appraised of by the officers of the Boy [Scouts] of the Philippines Therefore, even though the amended BSP charter did away with
whom we are also confident, have the best interest of the Boy Scout most of the governmental presence in the BSP Board, this was done
Movement at heart and it is in this spirit, Mr. Chairman, that we see to more strongly promote the BSP’s objectives, which were not
no impediment towards working together, the Boy Scout of the supported under Presidential Decree No. 460. The BSP objectives,
Philippines officers working together with the House of as pointed out earlier, are consistent with the public purpose of the
Representatives in coming out with a measure that will put back the promotion of the well-being of the youth, the future leaders of the
vigor and enthusiasm of the Boy Scout Movement. x x x.59 country. The amendments were not done with the view of changing
(Emphasis ours.) the character of the BSP into a privatized corporation. The BSP
The following is another excerpt from the discussion on the House remains an agency attached to a department of the government, the
version of the bill, in the Committee on Government Enterprises: DECS, and it was not at all stripped of its public character.
HON. AQUINO: x x x Well, obviously, the two bills as well as the The ownership and control test is likewise irrelevant for a public
previous laws that have created the Boy Scouts of the Philippines corporation like the BSP. To reiterate, the relationship of the BSP,
did not provide for any direct government support by way of an attached agency, to the government, through the DECS, is
appropriation from the national budget to support the activities of defined in the Revised Administrative Code of 1987. The BSP
this organization. The point here is, and at the same time they have meets the minimum statutory requirement of an attached
been subjected to a governmental intervention, which to their mind government agency as the DECS Secretary sits at the BSP Board ex
has been inimical to the objectives and to the institution per se, that officio, thus facilitating the policy and program coordination
is why they are seeking legislative fiat to restore back the original between the BSP and the DECS.
mandate that they had under Commonwealth Act 111. Such having Requisites for Declaration of Unconstitutionality Not Met in this
been the experience in the hands of government, meaning, there has Case
been negative interference on their part and inasmuch as their The dissenting opinion of Justice Carpio improperly raised the issue
mandate is coming from a legislative fiat, then shouldn’t it be, this of unconstitutionality of certain provisions of the BSP Charter. Even
rhetorical question, shouldn’t it be better for this organization to if the parties were asked to Comment on the validity of the BSP
seek a mandate from, let’s say, the government the Corporation charter by the Court, this alone does not comply with the requisites
Code of the Philippines and register with the SEC as non-profit non- for judicial review, which were clearly set forth in a recent case:
stock corporation so that government intervention could be very When questions of constitutional significance are raised, the Court
very minimal. Maybe that’s a rhetorical question, they may or they can exercise its power of judicial review only if the following
may not answer, ano. I don’t know what would be the benefit of a requisites are present: (1) the existence of an actual and appropriate
charter or a mandate being provided for by way of legislation versus case; (2) the existence of personal and substantial interest on the part
a registration with the SEC under the Corporation Code of the of the party raising the constitutional question; (3) recourse to
Philippines inasmuch as they don’t get anything from the judicial review is made at the earliest opportunity; and (4) the
government anyway insofar as direct funding. In fact, the only thing constitutional question is the lis mota of the case.61 (Emphasis
that they got from government was intervention in their affairs. added.)
Maybe we can solicit some commentary comments from the Thus, when it comes to the exercise of the power of judicial review,
resource persons. Incidentally, don’t take that as an objection, I’m the constitutional issue should be the very lis mota, or threshold
not objecting. I’m all for the objectives of these two bills. It just issue, of the case, and that it should be raised by either of the parties.
occurred to me that since you have had very bad experience in the These requirements would be ignored under the dissent’s rather
hands of government and you will always be open to such possible overreaching view of how this case should have been decided. True,
intervention even in the future as long as you have a legislative it was the Court that asked the parties to comment, but the Court
mandate or your mandate or your charter coming from legislative cannot be the one to raise a constitutional issue. Thus, the Court
action. chooses to once more exhibit restraint in the exercise of its power to
xxxx pass upon the validity of a law.
MR. ESCUDERO: Mr. Chairman, there may be a disadvantage if Re: the COA’s Jurisdiction
the Boy Scouts of the Philippines will be required to register with Regarding the COA’s jurisdiction over the BSP, Section 8 of its
the SEC. If we are registered with the SEC, there could be a danger amended charter allows the BSP to receive contributions or
of proliferation of scout organization. Anybody can organize and donations from the government. Section 8 reads:
then register with the SEC. If there will be a proliferation of this, Section 8. Any donation or contribution which from time to time
then the organization will lose control of the entire organization. may be made to the Boy Scouts of the Philippines by the
Another disadvantage, Mr. Chairman, anybody can file a complaint Government or any of its subdivisions, branches, offices, agencies
in the SEC against the Boy Scouts of the Philippines and the SEC or instrumentalities shall be expended by the Executive Board in
may suspend the operation or freeze the assets of the organization pursuance of this Act.lawph!1
and hamper the operation of the organization. I don’t know, Mr. The sources of funds to maintain the BSP were identified before the
Chairman, how you look at it but there could be a danger for House Committee on Government Enterprises while the bill was
being deliberated, and the pertinent portion of the discussion is instrumentalities, including government-owned and controlled
quoted below: corporations with original charters, and on a post-audit basis: (a)
MR. ESCUDERO. Yes, Mr. Chairman. The question is the sources constitutional bodies, commissions and offices that have been
of funds of the organization. First, Mr. Chairman, the Boy Scouts of granted fiscal autonomy under this Constitution; (b) autonomous
the Philippines do not receive annual allotment from the state colleges and universities; (c) other government-owned or
government. The organization has to raise its own funds through controlled corporations with original charters and their subsidiaries;
fund drives and fund campaigns or fund raising activities. Aside and (d) such non-governmental entities receiving subsidy or equity,
from this, we have some revenue producing projects in the directly or indirectly, from or through the Government, which are
organization that gives us funds to support the operation. x x x From required by law of the granting institution to submit to such audit as
time to time, Mr. Chairman, when we have special activities we a condition of subsidy or equity. x x x. 64
request for assistance or financial assistance from government Since the BSP, under its amended charter, continues to be a public
agencies, from private business and corporations, but this is only corporation or a government instrumentality, we come to the
during special activities that the Boy Scouts of the Philippines inevitable conclusion that it is subject to the exercise by the COA of
would conduct during the year. Otherwise, we have to raise our own its audit jurisdiction in the manner consistent with the provisions of
funds to support the organization.62 the BSP Charter.
The nature of the funds of the BSP and the COA’s audit jurisdiction WHEREFORE, premises considered, the instant petition for
were likewise brought up in said congressional deliberations, to wit: prohibition is DISMISSED.
HON. AQUINO: x x x Insofar as this organization being a SO ORDERED.
government created organization, in fact, a government corporation
classified as such, are your funds or your finances subjected to the G.R. No. 169752 September 25, 2007
COA audit? PHILIPPINE SOCIETY FOR THE PREVENTION OF
MR. ESCUDERO: Mr. Chairman, we are not. Our funds is not CRUELTY TO ANIMALS, Petitioners,
subjected. We don’t fall under the jurisdiction of the COA. vs.
HON. AQUINO: All right, but before were you? COMMISSION ON AUDIT, DIR. RODULFO J. ARIESGA (in
MR. ESCUDERO: No, Mr. Chairman. his official capacity as Director of the Commission on Audit),
MR. JESUS: May I? As historical backgrounder, Commonwealth MS. MERLE M. VALENTIN and MS. SUSAN GUARDIAN (in
Act 111 was written by then Secretary Jorge Vargas and before and their official capacities as Team Leader and Team Member,
up to the middle of the Martial Law years, the BSP was receiving a respectively, of the audit Team of the Commission on Audit),
subsidy in the form of an annual… a one draw from the Respondents.
Sweepstakes. And, this was the case also with the Girl Scouts at the DECISION
Anti-TB, but then this was… and the Boy Scouts then because of AUSTRIA-MARTINEZ, J.:
this funding partly from government was being subjected to audit in Before the Court is a special civil action for Certiorari and
the contributions being made in the part of the Sweepstakes. But this Prohibition under Rule 65 of the Rules of Court, in relation to
was removed later during the Martial Law years with the creation of Section 2 of Rule 64, filed by the petitioner assailing Office Order
the Human Settlements Commission. So the situation right now is No. 2005-0211 dated September 14, 2005 issued by the respondents
that the Boy Scouts does not receive any funding from government, which constituted the audit team, as well as its September 23, 2005
but then in the case of the local councils and this legislative charter, Letter2 informing the petitioner that respondents’ audit team shall
so to speak, enables the local councils even the national conduct an audit survey on the petitioner for a detailed audit of its
headquarters in view of the provisions in the existing law to receive accounts, operations, and financial transactions. No temporary
donations from the government or any of its instrumentalities, which restraining order was issued.
would be difficult if the Boy Scouts is registered as a private The petitioner was incorporated as a juridical entity over one
corporation with the Securities and Exchange Commission. hundred years ago by virtue of Act No. 1285, enacted on January
Government bodies would be estopped from making donations to 19, 1905, by the Philippine Commission. The petitioner, at the time
the Boy Scouts, which at present is not the case because there is the it was created, was composed of animal aficionados and animal
Boy Scouts charter, this Commonwealth Act 111 as amended by PD propagandists. The objects of the petitioner, as stated in Section 2 of
463. its charter, shall be to enforce laws relating to cruelty inflicted upon
xxxx animals or the protection of animals in the Philippine Islands, and
HON. AMATONG: Mr. Chairman, in connection with that. generally, to do and perform all things which may tend in any way
THE CHAIRMAN: Yeah, Gentleman from Zamboanga. to alleviate the suffering of animals and promote their welfare.3
HON. AMATONG: There is no auditing being made because At the time of the enactment of Act No. 1285, the original
there’s no money put in the organization, but how about donated Corporation Law, Act No. 1459, was not yet in existence. Act No.
funds to this organization? What are the remedies of the donors of 1285 antedated both the Corporation Law and the constitution of the
how will they know how their money are being spent? Securities and Exchange Commission. Important to note is that the
MR. ESCUDERO: May I answer, Mr. Chairman? nature of the petitioner as a corporate entity is distinguished from
THE CHAIRMAN: Yes, gentleman. the sociedad anonimas under the Spanish Code of Commerce.
MR. ESCUDERO: The Boy Scouts of the Philippines has an For the purpose of enhancing its powers in promoting animal
external auditor and by the charter we are required to submit a welfare and enforcing laws for the protection of animals, the
financial report at the end of each year to the National Executive petitioner was initially imbued under its charter with the power to
Board. So all the funds donated or otherwise is accounted for at the apprehend violators of animal welfare laws. In addition, the
end of the year by our external auditor. In this case the SGV.63 petitioner was to share one-half (1/2) of the fines imposed and
Historically, therefore, the BSP had been subjected to government collected through its efforts for violations of the laws related thereto.
audit in so far as public funds had been infused thereto. However, As originally worded, Sections 4 and 5 of Act No. 1285 provide:
this practice should not preclude the exercise of the audit SEC. 4. The said society is authorized to appoint not to exceed five
jurisdiction of COA, clearly set forth under the Constitution, which agents in the City of Manila, and not to exceed two in each of the
pertinently provides: provinces of the Philippine Islands who shall have all the power and
Section 2. (1) The Commission on Audit shall have the power, authority of a police officer to make arrests for violation of the laws
authority, and duty to examine, audit, and settle all accounts enacted for the prevention of cruelty to animals and the protection of
pertaining to the revenue and receipts of, and expenditures or uses of animals, and to serve any process in connection with the execution
funds and property, owned or held in trust by, or pertaining to, the of such laws; and in addition thereto, all the police force of the
Government, or any of its subdivisions, agencies, or Philippine Islands, wherever organized, shall, as occasion requires,
assist said society, its members or agents, in the enforcement of all governmental entities receiving subsidy or equity, directly or
such laws. indirectly, from or through the government, which are required by
SEC. 5. One-half of all the fines imposed and collected through the law or the granting institution to submit to such audit as a condition
efforts of said society, its members or its agents, for violations of the of subsidy or equity. However, where the internal control system of
laws enacted for the prevention of cruelty to animals and for their the audited agencies is inadequate, the Commission may adopt such
protection, shall belong to said society and shall be used to promote measures, including temporary or special pre-audit, as are necessary
its objects. and appropriate to correct the deficiencies. It shall keep the general
(emphasis supplied) accounts of the Government, and for such period as may be
Subsequently, however, the power to make arrests as well as the provided by law, preserve the vouchers and other supporting papers
privilege to retain a portion of the fines collected for violation of pertaining thereto. (Emphasis supplied)
animal-related laws were recalled by virtue of Commonwealth Act Petitioner explained thus:
(C.A.) No. 148,4 which reads, in its entirety, thus: a. Although the petitioner was created by special legislation, this
Be it enacted by the National Assembly of the Philippines: necessarily came about because in January 1905 there was as yet
Section 1. Section four of Act Numbered Twelve hundred and neither a Corporation Law or any other general law under which it
eighty-five as amended by Act Numbered Thirty five hundred and may be organized and incorporated, nor a Securities and Exchange
forty-eight, is hereby further amended so as to read as follows: Commission which would have passed upon its organization and
Sec. 4. The said society is authorized to appoint not to exceed ten incorporation.
agents in the City of Manila, and not to exceed one in each b. That Executive Order No. 63, issued during the Commonwealth
municipality of the Philippines who shall have the authority to period, effectively deprived the petitioner of its power to make
denounce to regular peace officers any violation of the laws enacted arrests, and that the petitioner lost its operational funding,
for the prevention of cruelty to animals and the protection of underscore the fact that it exercises no governmental function. In
animals and to cooperate with said peace officers in the prosecution fine, the government itself, by its overt acts, confirmed petitioner’s
of transgressors of such laws. status as a private juridical entity.
Sec. 2. The full amount of the fines collected for violation of the The COA General Counsel issued a Memorandum6 dated May 6,
laws against cruelty to animals and for the protection of animals, 2004, asserting that the petitioner was subject to its audit authority.
shall accrue to the general fund of the Municipality where the In a letter dated May 17, 2004,7 respondent COA informed the
offense was committed. petitioner of the result of the evaluation, furnishing it with a copy of
Sec. 3. This Act shall take effect upon its approval. said Memorandum dated May 6, 2004 of the General Counsel.
Approved, November 8, 1936. (Emphasis supplied) Petitioner thereafter filed with the respondent COA a Request for
Immediately thereafter, then President Manuel L. Quezon issued Re-evaluation dated May 19, 2004,8 insisting that it was a private
Executive Order (E.O.) No. 63 dated November 12, 1936, portions domestic corporation.
of which provide: Acting on the said request, the General Counsel of respondent COA,
Whereas, during the first regular session of the National Assembly, in a Memorandum dated July 13, 2004,9 affirmed her earlier opinion
Commonwealth Act Numbered One Hundred Forty Eight was that the petitioner was a government entity that was subject to the
enacted depriving the agents of the Society for the Prevention of audit jurisdiction of respondent COA. In a letter dated September
Cruelty to Animals of their power to arrest persons who have 14, 2004, the respondent COA informed the petitioner of the result
violated the laws prohibiting cruelty to animals thereby correcting a of the re-evaluation, maintaining its position that the petitioner was
serious defect in one of the laws existing in our statute books. subject to its audit jurisdiction, and requested an initial conference
xxxx with the respondents.
Whereas, the cruel treatment of animals is an offense against the In a Memorandum dated September 16, 2004, Director Delfin
State, penalized under our statutes, which the Government is duty Aguilar reported to COA Assistant Commissioner Juanito Espino,
bound to enforce; Corporate Government Sector, that the audit survey was not
Now, therefore, I, Manuel L. Quezon, President of the Philippines, conducted due to the refusal of the petitioner because the latter
pursuant to the authority conferred upon me by the Constitution, maintained that it was a private corporation.
hereby decree, order, and direct the Commissioner of Public Safety, Petitioner received on September 27, 2005 the subject COA Office
the Provost Marshal General as head of the Constabulary Division Order 2005-021 dated September 14, 2005 and the COA Letter
of the Philippine Army, every Mayor of a chartered city, and every dated September 23, 2005.
municipal president to detail and organize special members of the Hence, herein Petition on the following grounds:
police force, local, national, and the Constabulary to watch, A.
capture, and prosecute offenders against the laws enacted to prevent RESPONDENT COMMISSION ON AUDIT COMMITTED
cruelty to animals. (Emphasis supplied) GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR
On December 1, 2003, an audit team from respondent Commission EXCESS OF JURISDICTION WHEN IT RULED THAT
on Audit (COA) visited the office of the petitioner to conduct an PETITIONER IS SUBJECT TO ITS AUDIT AUTHORITY.
audit survey pursuant to COA Office Order No. 2003-051 dated B.
November 18, 20035 addressed to the petitioner. The petitioner PETITIONER IS ENTITLED TO THE RELIEF SOUGHT, THERE
demurred on the ground that it was a private entity not under the BEING NO APPEAL, NOR ANY PLAIN, SPEEDY AND
jurisdiction of COA, citing Section 2(1) of Article IX of the ADEQUATE REMEDY IN THE ORDINARY COURSE OF LAW
Constitution which specifies the general jurisdiction of the COA, AVAILABLE TO IT.10
viz: The essential question before this Court is whether the petitioner
Section 1. General Jurisdiction. The Commission on Audit shall qualifies as a government agency that may be subject to audit by
have the power, authority, and duty to examine, audit, and settle all respondent COA.
accounts pertaining to the revenue and receipts of, and expenditures Petitioner argues: first, even though it was created by special
or uses of funds and property, owned or held in trust by, or legislation in 1905 as there was no general law then existing under
pertaining to the Government, or any of its subdivisions, agencies, which it may be organized or incorporated, it exercises no
or instrumentalities, including government-owned and controlled governmental functions because these have been revoked by C.A.
corporations with original charters, and on a post-audit basis: (a) No. 148 and E.O. No. 63; second, nowhere in its charter is it
constitutional bodies, commissions and officers that have been indicated that it is a public corporation, unlike, for instance, C.A.
granted fiscal autonomy under the Constitution; (b) autonomous No. 111 which created the Boy Scouts of the Philippines, defined its
state colleges and universities; (c) other government-owned or powers and purposes, and specifically stated that it was "An Act to
controlled corporations and their subsidiaries; and (d) such non- Create a Public Corporation" in which, even as amended by
Presidential Decree No. 460, the law still adverted to the Boy Scouts represented by the OSG which filed its Comment, they opted to
of the Philippines as a "public corporation," all of which are not dispense with the filing of a separate one and adopt for the purpose
obtaining in the charter of the petitioner; third, if it were a that of the OSG.
government body, there would have been no need for the State to The petitioner avers that it does not have the authority to impose
grant it tax exemptions under Republic Act No. 1178, and the fact fines for violation of animal welfare laws; it only enjoyed the
that it was so exempted strengthens its position that it is a private privilege of sharing in the fines imposed and collected from its
institution; fourth, the employees of the petitioner are registered and efforts in the enforcement of animal welfare laws; such privilege,
covered by the Social Security System at the latter’s initiative and however, was subsequently abolished by C.A. No. 148; that it
not through the Government Service Insurance System, which continues to exist as a private corporation since it was created by the
should have been the case had the employees been considered Philippine Commission before the effectivity of the Corporation
government employees; fifth, the petitioner does not receive any law, Act No. 1459; and the 1935 and 1987 Constitutions.
form of financial assistance from the government, since C.A. No. The OSG submits that Act No. 1285 and its amendatory laws did
148, amending Section 5 of Act No. 1285, states that the "full not give petitioner the authority to impose fines for violation of
amount of the fines, collected for violation of the laws against laws12 relating to the prevention of cruelty to animals and the
cruelty to animals and for the protection of animals, shall accrue to protection of animals; that even prior to the amendment of Act No.
the general fund of the Municipality where the offense was 1285, petitioner was only entitled to share in the fines imposed;
committed"; sixth, C.A. No. 148 effectively deprived the petitioner C.A. No. 148 abolished that privilege to share in the fines collected;
of its powers to make arrests and serve processes as these functions that petitioner is a public corporation and has continued to exist
were placed in the hands of the police force; seventh, no government since Act No. 1285; petitioner was not repealed by the 1935 and
appointee or representative sits on the board of trustees of the 1987 Constitutions which contain transitory provisions maintaining
petitioner; eighth, a reading of the provisions of its charter (Act No. all laws issued not inconsistent therewith until amended, modified
1285) fails to show that any act or decision of the petitioner is or repealed.
subject to the approval of or control by any government agency, The petition is impressed with merit.
except to the extent that it is governed by the law on private The arguments of the parties, interlaced as they are, can be disposed
corporations in general; and finally, ninth, the Committee on Animal of in five points.
Welfare, under the Animal Welfare Act of 1998, includes members First, the Court agrees with the petitioner that the "charter test"
from both the private and the public sectors. cannot be applied.
The respondents contend that since the petitioner is a "body politic" Essentially, the "charter test" as it stands today provides:
created by virtue of a special legislation and endowed with a [T]he test to determine whether a corporation is government owned
governmental purpose, then, indubitably, the COA may audit the or controlled, or private in nature is simple. Is it created by its own
financial activities of the latter. Respondents in effect divide their charter for the exercise of a public function, or by incorporation
contentions into six strains: first, the test to determine whether an under the general corporation law? Those with special charters are
entity is a government corporation lies in the manner of its creation, government corporations subject to its provisions, and its employees
and, since the petitioner was created by virtue of a special charter, it are under the jurisdiction of the Civil Service Commission, and are
is thus a government corporation subject to respondents’ auditing compulsory members of the Government Service Insurance System.
power; second, the petitioner exercises "sovereign powers," that is, xxx (Emphasis supplied)13
it is tasked to enforce the laws for the protection and welfare of The petitioner is correct in stating that the charter test is predicated,
animals which "ultimately redound to the public good and welfare," at best, on the legal regime established by the 1935 Constitution,
and, therefore, it is deemed to be a government "instrumentality" as Section 7, Article XIII, which states:
defined under the Administrative Code of 1987, the purpose of Sec. 7. The National Assembly shall not, except by general law,
which is connected with the administration of government, as provide for the formation, organization, or regulation of private
purportedly affirmed by American jurisprudence; third, by virtue of corporations, unless such corporations are owned or controlled by
Section 23,11 Title II, Book III of the same Code, the Office of the the Government or any subdivision or instrumentality thereof.14
President exercises supervision or control over the petitioner; fourth, The foregoing proscription has been carried over to the 1973 and the
under the same Code, the requirement under its special charter for 1987 Constitutions. Section 16 of Article XII of the present
the petitioner to render a report to the Civil Governor, whose Constitution provides:
functions have been inherited by the Office of the President, clearly Sec. 16. The Congress shall not, except by general law, provide for
reflects the nature of the petitioner as a government instrumentality; the formation, organization, or regulation of private corporations.
fifth, despite the passage of the Corporation Code, the law creating Government-owned or controlled corporations may be created or
the petitioner had not been abolished, nor had it been re- established by special charters in the interest of the common good
incorporated under any general corporation law; and finally, sixth, and subject to the test of economic viability.
Republic Act No. 8485, otherwise known as the "Animal Welfare Section 16 is essentially a re-enactment of Section 7 of Article XVI
Act of 1998," designates the petitioner as a member of its of the 1935 Constitution and Section 4 of Article XIV of the 1973
Committee on Animal Welfare which is attached to the Department Constitution.
of Agriculture. During the formulation of the 1935 Constitution, the Committee on
In view of the phrase "One-half of all the fines imposed and Franchises recommended the foregoing proscription to prevent the
collected through the efforts of said society," the Court, in a pressure of special interests upon the lawmaking body in the
Resolution dated January 30, 2007, required the Office of the creation of corporations or in the regulation of the same. To permit
Solicitor General (OSG) and the parties to comment on: a) the lawmaking body by special law to provide for the organization,
petitioner's authority to impose fines and the validity of the formation, or regulation of private corporations would be in effect to
provisions of Act No. 1285 and Commonwealth Act No. 148 offer to it the temptation in many cases to favor certain groups, to
considering that there are no standard measures provided for in the the prejudice of others or to the prejudice of the interests of the
aforecited laws as to the manner of implementation, the specific country.15
violations of the law, the person/s authorized to impose fine and in And since the underpinnings of the charter test had been introduced
what amount; and, b) the effect of the 1935 and 1987 Constitutions by the 1935 Constitution and not earlier, it follows that the test
on whether petitioner continues to exist or should organize as a cannot apply to the petitioner, which was incorporated by virtue of
private corporation under the Corporation Code, B.P. Blg. 68 as Act No. 1285, enacted on January 19, 1905. Settled is the rule that
amended. laws in general have no retroactive effect, unless the contrary is
Petitioner and the OSG filed their respective Comments. provided.16 All statutes are to be construed as having only a
Respondents filed a Manifestation stating that since they were being prospective operation, unless the purpose and intention of the
legislature to give them a retrospective effect is expressly declared laws, and may exercise those powers generally accorded to private
or is necessarily implied from the language used. In case of doubt, corporations, such as the powers to hold property, to sue and be sued,
the doubt must be resolved against the retrospective effect.17 to use a common seal, and so forth. It may adopt by-laws for its
There are a few exceptions. Statutes can be given retroactive effect internal operations: the petitioner shall be managed or operated by its
in the following cases: (1) when the law itself so expressly provides; officers "in accordance with its by-laws in force." The pertinent
(2) in case of remedial statutes; (3) in case of curative statutes; (4) in provisions of the charter provide:
case of laws interpreting others; and (5) in case of laws creating new Section 1. Anna L. Ide, Kate S. Wright, John L. Chamberlain,
rights.18 None of the exceptions is present in the instant case. William F. Tucker, Mary S. Fergusson, Amasa S. Crossfield, Spencer
The general principle of prospectivity of the law likewise applies to Cosby, Sealy B. Rossiter, Richard P. Strong, Jose Robles Lahesa,
Act No. 1459, otherwise known as the Corporation Law, which had Josefina R. de Luzuriaga, and such other persons as may be associated
been enacted by virtue of the plenary powers of the Philippine with them in conformity with this act, and their successors, are hereby
Commission on March 1, 1906, a little over a year after January 19, constituted and created a body politic and corporate at law, under the
1905, the time the petitioner emerged as a juridical entity. Even the name and style of "The Philippines Society for the Prevention of
Corporation Law respects the rights and powers of juridical entities Cruelty to Animals."
organized beforehand, viz: As incorporated by this Act, said society shall have the power to add
SEC. 75. Any corporation or sociedad anonima formed, organized, to its organization such and as many members as it desires, to provide
and existing under the laws of the Philippine Islands and lawfully for and choose such officers as it may deem advisable, and in such
transacting business in the Philippine Islands on the date of the manner as it may wish, and to remove members as it shall provide.
passage of this Act, shall be subject to the provisions hereof so far as It shall have the right to sue and be sued, to use a common seal, to
such provisions may be applicable and shall be entitled at its option receive legacies and donations, to conduct social enterprises for the
either to continue business as such corporation or to reform and purpose of obtaining funds, to levy dues upon its members and
organize under and by virtue of the provisions of this Act, provide for their collection to hold real and personal estate such as
transferring all corporate interests to the new corporation which, if a may be necessary for the accomplishment of the purposes of the
stock corporation, is authorized to issue its shares of stock at par to society, and to adopt such by-laws for its government as may not be
the stockholders or members of the old corporation according to inconsistent with law or this charter.
their interests. (Emphasis supplied). xxxx
As pointed out by the OSG, both the 1935 and 1987 Constitutions Sec. 3. The said society shall be operated under the direction of its
contain transitory provisions maintaining all laws issued not officers, in accordance with its by-laws in force, and this charter.
inconsistent therewith until amended, modified or repealed.19 xxxx
In a legal regime where the charter test doctrine cannot be applied, Sec. 6. The principal office of the society shall be kept in the city of
the mere fact that a corporation has been created by virtue of a Manila, and the society shall have full power to locate and establish
special law does not necessarily qualify it as a public corporation. branch offices of the society wherever it may deem advisable in the
What then is the nature of the petitioner as a corporate entity? What Philippine Islands, such branch offices to be under the supervision
legal regime governs its rights, powers, and duties? and control of the principal office.
As stated, at the time the petitioner was formed, the applicable law Third. The employees of the petitioner are registered and covered by
was the Philippine Bill of 1902, and, emphatically, as also stated the Social Security System at the latter’s initiative, and not through
above, no proscription similar to the charter test can be found the Government Service Insurance System, which should be the case
therein. if the employees are considered government employees. This is
The textual foundation of the charter test, which placed a limitation another indication of petitioner’s nature as a private entity. Section 1
on the power of the legislature, first appeared in the 1935 of Republic Act No. 1161, as amended by Republic Act No. 8282,
Constitution. However, the petitioner was incorporated in 1905 by otherwise known as the Social Security Act of 1997, defines the
virtue of Act No. 1258, a law antedating the Corporation Law (Act employer:
No. 1459) by a year, and the 1935 Constitution, by thirty years. Employer – Any person, natural or juridical, domestic or foreign, who
There being neither a general law on the formation and organization carries on in the Philippines any trade, business, industry, undertaking
of private corporations nor a restriction on the legislature to create or activity of any kind and uses the services of another person who is
private corporations by direct legislation, the Philippine under his orders as regards the employment, except the Government
Commission at that moment in history was well within its powers in and any of its political subdivisions, branches or instrumentalities,
1905 to constitute the petitioner as a private juridical entity.1âwphi1 including corporations owned or controlled by the Government:
Time and again the Court must caution even the most brilliant Provided, That a self-employed person shall be both employee and
scholars of the law and all constitutional historians on the danger of employer at the same time. (Emphasis supplied)
imposing legal concepts of a later date on facts of an earlier date.20 Fourth. The respondents contend that the petitioner is a "body politic"
The amendments introduced by C.A. No. 148 made it clear that the because its primary purpose is to secure the protection and welfare of
petitioner was a private corporation and not an agency of the animals which, in turn, redounds to the public good.
government. This was evident in Executive Order No. 63, issued by This argument, is, at best, specious. The fact that a certain juridical
then President of the Philippines Manuel L. Quezon, declaring that entity is impressed with public interest does not, by that circumstance
the revocation of the powers of the petitioner to appoint agents with alone, make the entity a public corporation, inasmuch as a corporation
powers of arrest "corrected a serious defect" in one of the laws may be private although its charter contains provisions of a public
existing in the statute books. character, incorporated solely for the public good. This class of
As a curative statute, and based on the doctrines so far discussed, corporations may be considered quasi-public corporations, which are
C.A. No. 148 has to be given retroactive effect, thereby freeing all private corporations that render public service, supply public wants,21
doubt as to which class of corporations the petitioner belongs, that or pursue other eleemosynary objectives. While purposely organized
is, it is a quasi-public corporation, a kind of private domestic for the gain or benefit of its members, they are required by law to
corporation, which the Court will further elaborate on under the discharge functions for the public benefit. Examples of these
fourth point. corporations are utility,22 railroad, warehouse, telegraph, telephone,
Second, a reading of petitioner’s charter shows that it is not subject to water supply corporations and transportation companies.23 It must be
control or supervision by any agency of the State, unlike government- stressed that a quasi-public corporation is a species of private
owned and -controlled corporations. No government representative corporations, but the qualifying factor is the type of service the
sits on the board of trustees of the petitioner. Like all private former renders to the public: if it performs a public service, then it
corporations, the successors of its members are determined becomes a quasi-public corporation.241âwphi1
voluntarily and solely by the petitioner in accordance with its by-
Authorities are of the view that the purpose alone of the corporation
cannot be taken as a safe guide, for the fact is that almost all G.R. No. 183591 October 14, 2008
corporations are nowadays created to promote the interest, good, or THE PROVINCE OF NORTH COTABATO, duly represented
convenience of the public. A bank, for example, is a private by GOVERNOR JESUS SACDALAN and/or VICE-
corporation; yet, it is created for a public benefit. Private schools and GOVERNOR EMMANUEL PIÑOL, for and in his own behalf,
universities are likewise private corporations; and yet, they are petitioners,
rendering public service. Private hospitals and wards are charged with vs.
heavy social responsibilities. More so with all common carriers. On THE GOVERNMENT OF THE REPUBLIC OF THE
the other hand, there may exist a public corporation even if it is PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN
endowed with gifts or donations from private individuals. (GRP), represented by SEC. RODOLFO GARCIA, ATTY.
The true criterion, therefore, to determine whether a corporation is LEAH ARMAMENTO, ATTY. SEDFREY CANDELARIA,
public or private is found in the totality of the relation of the MARK RYAN SULLIVAN and/or GEN. HERMOGENES
corporation to the State. If the corporation is created by the State as ESPERON, JR., the latter in his capacity as the present and
the latter’s own agency or instrumentality to help it in carrying out its duly-appointed Presidential Adviser on the Peace Process
governmental functions, then that corporation is considered public; (OPAPP) or the so-called Office of the Presidential Adviser on
otherwise, it is private. Applying the above test, provinces, chartered the Peace Process, respondents.
cities, and barangays can best exemplify public corporations. They x--------------------------------------------x
are created by the State as its own device and agency for the G.R. No. 183752 October 14, 2008
accomplishment of parts of its own public works.25 CITY GOVERNMENT OF ZAMBOANGA, as represented by
It is clear that the amendments introduced by C.A. No. 148 revoked HON. CELSO L. LOBREGAT, City Mayor of Zamboanga, and
the powers of the petitioner to arrest offenders of animal welfare laws in his personal capacity as resident of the City of Zamboanga,
and the power to serve processes in connection therewith. Rep. MA. ISABELLE G. CLIMACO, District 1, and Rep.
Fifth. The respondents argue that since the charter of the petitioner ERICO BASILIO A. FABIAN, District 2, City of Zamboanga,
requires the latter to render periodic reports to the Civil Governor, petitioners,
whose functions have been inherited by the President, the petitioner vs.
is, therefore, a government instrumentality. THE GOVERNMENT OF THE REPUBLIC OF THE
This contention is inconclusive. By virtue of the fiction that all PHILIPPINES PEACE NEGOTIATING PANEL (GRP), as
corporations owe their very existence and powers to the State, the represented by RODOLFO C. GARCIA, LEAH
reportorial requirement is applicable to all corporations of whatever ARMAMENTO, SEDFREY CANDELARIA, MARK RYAN
nature, whether they are public, quasi-public, or private SULLIVAN and HERMOGENES ESPERON, in his capacity as
corporations—as creatures of the State, there is a reserved right in the the Presidential Adviser on Peace Process, respondents.
legislature to investigate the activities of a corporation to determine x--------------------------------------------x
whether it acted within its powers. In other words, the reportorial G.R. No. 183893 October 14, 2008
requirement is the principal means by which the State may see to it THE CITY OF ILIGAN, duly represented by CITY MAYOR
that its creature acted according to the powers and functions conferred LAWRENCE LLUCH CRUZ, petitioner,
upon it. These principles were extensively discussed in Bataan vs.
Shipyard & Engineering Co., Inc. v. Presidential Commission on THE GOVERNMENT OF THE REPUBLIC OF THE
Good Government.26 Here, the Court, in holding that the subject PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN
corporation could not invoke the right against self-incrimination (GRP), represented by SEC. RODOLFO GARCIA, ATTY.
whenever the State demanded the production of its corporate books LEAH ARMAMENTO, ATTY. SEDFREY CANDELARIA,
and papers, extensively discussed the purpose of reportorial MARK RYAN SULLIVAN; GEN. HERMOGENES ESPERON,
requirements, viz: JR., in his capacity as the present and duly appointed
x x x The corporation is a creature of the state. It is presumed to be Presidential Adviser on the Peace Process; and/or SEC.
incorporated for the benefit of the public. It received certain special EDUARDO ERMITA, in his capacity as Executive Secretary.
privileges and franchises, and holds them subject to the laws of the respondents.
state and the limitations of its charter. Its powers are limited by law. x--------------------------------------------x
It can make no contract not authorized by its charter. Its rights to act G.R. No. 183951 October 14, 2008
as a corporation are only preserved to it so long as it obeys the laws THE PROVINCIAL GOVERNMENT OF ZAMBOANGA DEL
of its creation. There is a reserve[d] right in the legislature to NORTE, as represented by HON. ROLANDO E. YEBES, in his
investigate its contracts and find out whether it has exceeded its capacity as Provincial Governor, HON. FRANCIS H. OLVIS, in
powers. It would be a strange anomaly to hold that a state, having his capacity as Vice-Governor and Presiding Officer of the
chartered a corporation to make use of certain franchises, could not, Sangguniang Panlalawigan, HON. CECILIA JALOSJOS
in the exercise of sovereignty, inquire how these franchises had been CARREON, Congresswoman, 1st Congressional District, HON.
employed, and whether they had been abused, and demand the CESAR G. JALOSJOS, Congressman, 3rd Congressional
production of the corporate books and papers for that purpose. The District, and Members of the Sangguniang Panlalawigan of the
defense amounts to this, that an officer of the corporation which is Province of Zamboanga del Norte, namely, HON. SETH
charged with a criminal violation of the statute may plead the FREDERICK P. JALOSJOS, HON. FERNANDO R.
criminality of such corporation as a refusal to produce its books. To CABIGON, JR., HON. ULDARICO M. MEJORADA II, HON.
state this proposition is to answer it. While an individual may lawfully EDIONAR M. ZAMORAS, HON. EDGAR J. BAGUIO, HON.
refuse to answer incriminating questions unless protected by an CEDRIC L. ADRIATICO, HON. FELIXBERTO C.
immunity statute, it does not follow that a corporation vested with BOLANDO, HON. JOSEPH BRENDO C. AJERO, HON.
special privileges and franchises may refuse to show its hand when NORBIDEIRI B. EDDING, HON. ANECITO S. DARUNDAY,
charged with an abuse of such privileges. (Wilson v. United States, HON. ANGELICA J. CARREON and HON. LUZVIMINDA E.
55 Law Ed., 771, 780.)27 TORRINO, petitioners,
WHEREFORE, the petition is GRANTED. Petitioner is vs.
DECLARED a private domestic corporation subject to the THE GOVERNMENT OF THE REPUBLIC OF THE
jurisdiction of the Securities and Exchange Commission. The PHILIPPINES PEACE NEGOTIATING PANEL [GRP], as
respondents are ENJOINED from investigating, examining and represented by HON. RODOLFO C. GARCIA and HON.
auditing the petitioner's fiscal and financial affairs. HERMOGENES ESPERON, in his capacity as the Presidential
SO ORDERED. Adviser of Peace Process, respondents.
x--------------------------------------------x The MILF is a rebel group which was established in March 1984
G.R. No. 183962 October 14, 2008 when, under the leadership of the late Salamat Hashim, it splintered
ERNESTO M. MACEDA, JEJOMAR C. BINAY, and from the Moro National Liberation Front (MNLF) then headed by
AQUILINO L. PIMENTEL III, petitioners, Nur Misuari, on the ground, among others, of what Salamat perceived
vs. to be the manipulation of the MNLF away from an Islamic basis
THE GOVERNMENT OF THE REPUBLIC OF THE towards Marxist-Maoist orientations.1
PHILIPPINES PEACE NEGOTIATING PANEL, represented The signing of the MOA-AD between the GRP and the MILF was not
by its Chairman RODOLFO C. GARCIA, and the MORO to materialize, however, for upon motion of petitioners, specifically
ISLAMIC LIBERATION FRONT PEACE NEGOTIATING those who filed their cases before the scheduled signing of the MOA-
PANEL, represented by its Chairman MOHAGHER IQBAL, AD, this Court issued a Temporary Restraining Order enjoining the
respondents. GRP from signing the same.
x--------------------------------------------x The MOA-AD was preceded by a long process of negotiation and the
FRANKLIN M. DRILON and ADEL ABBAS TAMANO, concluding of several prior agreements between the two parties
petitioners-in-intervention. beginning in 1996, when the GRP-MILF peace negotiations began.
x--------------------------------------------x On July 18, 1997, the GRP and MILF Peace Panels signed the
SEN. MANUEL A. ROXAS, petitioners-in-intervention. Agreement on General Cessation of Hostilities. The following year,
x--------------------------------------------x they signed the General Framework of Agreement of Intent on August
MUNICIPALITY OF LINAMON duly represented by its 27, 1998.
Municipal Mayor NOEL N. DEANO, petitioners-in-intervention, The Solicitor General, who represents respondents, summarizes the
x--------------------------------------------x MOA-AD by stating that the same contained, among others, the
THE CITY OF ISABELA, BASILAN PROVINCE, represented commitment of the parties to pursue peace negotiations, protect and
by MAYOR CHERRYLYN P. SANTOS-AKBAR, petitioners-in- respect human rights, negotiate with sincerity in the resolution and
intervention. pacific settlement of the conflict, and refrain from the use of threat or
x--------------------------------------------x force to attain undue advantage while the peace negotiations on the
THE PROVINCE OF SULTAN KUDARAT, rep. by HON. substantive agenda are on-going.2
SUHARTO T. MANGUDADATU, in his capacity as Provincial Early on, however, it was evident that there was not going to be any
Governor and a resident of the Province of Sultan Kudarat, smooth sailing in the GRP-MILF peace process. Towards the end of
petitioner-in-intervention. 1999 up to early 2000, the MILF attacked a number of municipalities
x-------------------------------------------x in Central Mindanao and, in March 2000, it took control of the town
RUY ELIAS LOPEZ, for and in his own behalf and on behalf of hall of Kauswagan, Lanao del Norte.3 In response, then President
Indigenous Peoples in Mindanao Not Belonging to the MILF, Joseph Estrada declared and carried out an "all-out-war" against the
petitioner-in-intervention. MILF.
x--------------------------------------------x When President Gloria Macapagal-Arroyo assumed office, the
CARLO B. GOMEZ, GERARDO S. DILIG, NESARIO G. military offensive against the MILF was suspended and the
AWAT, JOSELITO C. ALISUAG and RICHALEX G. government sought a resumption of the peace talks. The MILF,
JAGMIS, as citizens and residents of Palawan, petitioners-in- according to a leading MILF member, initially responded with deep
intervention. reservation, but when President Arroyo asked the Government of
x--------------------------------------------x Malaysia through Prime Minister Mahathir Mohammad to help
MARINO RIDAO and KISIN BUXANI, petitioners-in- convince the MILF to return to the negotiating table, the MILF
intervention. convened its Central Committee to seriously discuss the matter and,
x--------------------------------------------x eventually, decided to meet with the GRP.4
MUSLIM LEGAL ASSISTANCE FOUNDATION, INC The parties met in Kuala Lumpur on March 24, 2001, with the talks
(MUSLAF), respondent-in-intervention. being facilitated by the Malaysian government, the parties signing on
x--------------------------------------------x the same date the Agreement on the General Framework for the
MUSLIM MULTI-SECTORAL MOVEMENT FOR PEACE & Resumption of Peace Talks Between the GRP and the MILF. The
DEVELOPMENT (MMMPD), respondent-in-intervention. MILF thereafter suspended all its military actions.5
x--------------------------------------------x Formal peace talks between the parties were held in Tripoli, Libya
DECISION from June 20-22, 2001, the outcome of which was the GRP-MILF
CARPIO MORALES, J.: Tripoli Agreement on Peace (Tripoli Agreement 2001) containing the
Subject of these consolidated cases is the extent of the powers of basic principles and agenda on the following aspects of the
the President in pursuing the peace process. While the facts negotiation: Security Aspect, Rehabilitation Aspect, and Ancestral
surrounding this controversy center on the armed conflict in Domain Aspect. With regard to the Ancestral Domain Aspect, the
Mindanao between the government and the Moro Islamic Liberation parties in Tripoli Agreement 2001 simply agreed "that the same be
Front (MILF), the legal issue involved has a bearing on all areas in discussed further by the Parties in their next meeting."
the country where there has been a long-standing armed conflict. A second round of peace talks was held in Cyberjaya, Malaysia on
Yet again, the Court is tasked to perform a delicate balancing act. It August 5-7, 2001 which ended with the signing of the Implementing
must uncompromisingly delineate the bounds within which the Guidelines on the Security Aspect of the Tripoli Agreement 2001
President may lawfully exercise her discretion, but it must do so in leading to a ceasefire status between the parties. This was followed
strict adherence to the Constitution, lest its ruling unduly restricts by the Implementing Guidelines on the Humanitarian Rehabilitation
the freedom of action vested by that same Constitution in the Chief and Development Aspects of the Tripoli Agreement 2001, which was
Executive precisely to enable her to pursue the peace process signed on May 7, 2002 at Putrajaya, Malaysia. Nonetheless, there
effectively. were many incidence of violence between government forces and the
I. FACTUAL ANTECEDENTS OF THE PETITIONS MILF from 2002 to 2003.
On August 5, 2008, the Government of the Republic of the Meanwhile, then MILF Chairman Salamat Hashim passed away on
Philippines (GRP) and the MILF, through the Chairpersons of their July 13, 2003 and he was replaced by Al Haj Murad, who was then
respective peace negotiating panels, were scheduled to sign a the chief peace negotiator of the MILF. Murad's position as chief
Memorandum of Agreement on the Ancestral Domain (MOA-AD) peace negotiator was taken over by Mohagher Iqbal.6
Aspect of the GRP-MILF Tripoli Agreement on Peace of 2001 in In 2005, several exploratory talks were held between the parties in
Kuala Lumpur, Malaysia. 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 Foundation, Inc. (Muslaf) and the Muslim Multi-Sectoral Movement
August 5, 2008. for Peace and Development (MMMPD) filed their respective
II. STATEMENT OF THE PROCEEDINGS Comments-in-Intervention.
Before the Court is what is perhaps the most contentious "consensus" By subsequent Resolutions, the Court ordered the consolidation of the
ever embodied in an instrument - the MOA-AD which is assailed petitions. Respondents filed Comments on the petitions, while some
principally by the present petitions bearing docket numbers 183591, of petitioners submitted their respective Replies.
183752, 183893, 183951 and 183962. Respondents, by Manifestation and Motion of August 19, 2008, stated
Commonly impleaded as respondents are the GRP Peace Panel on that the Executive Department shall thoroughly review the MOA-AD
Ancestral Domain7 and the Presidential Adviser on the Peace Process and pursue further negotiations to address the issues hurled against it,
(PAPP) Hermogenes Esperon, Jr. and thus moved to dismiss the cases. In the succeeding exchange of
On July 23, 2008, the Province of North Cotabato8 and Vice- pleadings, respondents' motion was met with vigorous opposition
Governor Emmanuel Piñol filed a petition, docketed as G.R. No. from petitioners.
183591, for Mandamus and Prohibition with Prayer for the Issuance The cases were heard on oral argument on August 15, 22 and 29, 2008
of Writ of Preliminary Injunction and Temporary Restraining Order.9 that tackled the following principal issues:
Invoking the right to information on matters of public concern, 1. Whether the petitions have become moot and academic
petitioners seek to compel respondents to disclose and furnish them (i) insofar as the mandamus aspect is concerned, in view of the
the complete and official copies of the MOA-AD including its disclosure of official copies of the final draft of the Memorandum of
attachments, and to prohibit the slated signing of the MOA-AD, Agreement (MOA); and
pending the disclosure of the contents of the MOA-AD and the (ii) insofar as the prohibition aspect involving the Local Government
holding of a public consultation thereon. Supplementarily, petitioners Units is concerned, if it is considered that consultation has become
pray that the MOA-AD be declared unconstitutional.10 fait accompli with the finalization of the draft;
This initial petition was followed by another one, docketed as G.R. 2. Whether the constitutionality and the legality of the MOA is ripe
No. 183752, also for Mandamus and Prohibition11 filed by the City of for adjudication;
Zamboanga,12 Mayor Celso Lobregat, Rep. Ma. Isabelle Climaco and 3. Whether respondent Government of the Republic of the Philippines
Rep. Erico Basilio Fabian who likewise pray for similar injunctive Peace Panel committed grave abuse of discretion amounting to lack
reliefs. Petitioners herein moreover pray that the City of Zamboanga or excess of jurisdiction when it negotiated and initiated the MOA
be excluded from the Bangsamoro Homeland and/or Bangsamoro vis-à-vis ISSUES Nos. 4 and 5;
Juridical Entity and, in the alternative, that the MOA-AD be declared 4. Whether there is a violation of the people's right to information on
null and void. matters of public concern (1987 Constitution, Article III, Sec. 7)
By Resolution of August 4, 2008, the Court issued a Temporary under a state policy of full disclosure of all its transactions involving
Restraining Order commanding and directing public respondents and public interest (1987 Constitution, Article II, Sec. 28) including
their agents to cease and desist from formally signing the MOA-AD.13 public consultation under Republic Act No. 7160 (LOCAL
The Court also required the Solicitor General to submit to the Court GOVERNMENT CODE OF 1991)[;]
and petitioners the official copy of the final draft of the MOA-AD,14 If it is in the affirmative, whether prohibition under Rule 65 of the
to which she complied.15 1997 Rules of Civil Procedure is an appropriate remedy;
Meanwhile, the City of Iligan16 filed a petition for Injunction and/or 5. Whether by signing the MOA, the Government of the Republic of
Declaratory Relief, docketed as G.R. No. 183893, praying that the Philippines would be BINDING itself
respondents be enjoined from signing the MOA-AD or, if the same a) to create and recognize the Bangsamoro Juridical Entity (BJE) as a
had already been signed, from implementing the same, and that the separate state, or a juridical, territorial or political subdivision not
MOA-AD be declared unconstitutional. Petitioners herein recognized by law;
additionally implead Executive Secretary Eduardo Ermita as b) to revise or amend the Constitution and existing laws to conform
respondent. to the MOA;
The Province of Zamboanga del Norte,17 Governor Rolando Yebes, c) to concede to or recognize the claim of the Moro Islamic Liberation
Vice-Governor Francis Olvis, Rep. Cecilia Jalosjos-Carreon, Rep. Front for ancestral domain in violation of Republic Act No. 8371
Cesar Jalosjos, and the members18 of the Sangguniang Panlalawigan (THE INDIGENOUS PEOPLES RIGHTS ACT OF 1997),
of Zamboanga del Norte filed on August 15, 2008 a petition for particularly Section 3(g) & Chapter VII (DELINEATION,
Certiorari, Mandamus and Prohibition,19 docketed as G.R. No. RECOGNITION OF ANCESTRAL DOMAINS)[;]
183951. They pray, inter alia, that the MOA-AD be declared null and If in the affirmative, whether the Executive Branch has the authority
void and without operative effect, and that respondents be enjoined to so bind the Government of the Republic of the Philippines;
from executing the MOA-AD. 6. Whether the inclusion/exclusion of the Province of North Cotabato,
On August 19, 2008, Ernesto Maceda, Jejomar Binay, and Aquilino Cities of Zamboanga, Iligan and Isabela, and the Municipality of
Pimentel III filed a petition for Prohibition,20 docketed as G.R. No. Linamon, Lanao del Norte in/from the areas covered by the projected
183962, praying for a judgment prohibiting and permanently Bangsamoro Homeland is a justiciable question; and
enjoining respondents from formally signing and executing the 7. Whether desistance from signing the MOA derogates any prior
MOA-AD and or any other agreement derived therefrom or similar valid commitments of the Government of the Republic of the
thereto, and nullifying the MOA-AD for being unconstitutional and Philippines.24
illegal. Petitioners herein additionally implead as respondent the The Court, thereafter, ordered the parties to submit their respective
MILF Peace Negotiating Panel represented by its Chairman Memoranda. Most of the parties submitted their memoranda on time.
Mohagher Iqbal. III. OVERVIEW OF THE MOA-AD
Various parties moved to intervene and were granted leave of court As a necessary backdrop to the consideration of the objections raised
to file their petitions-/comments-in-intervention. Petitioners-in- in the subject five petitions and six petitions-in-intervention against
Intervention include Senator Manuel A. Roxas, former Senate the MOA-AD, as well as the two comments-in-intervention in favor
President Franklin Drilon and Atty. Adel Tamano, the City of of the MOA-AD, the Court takes an overview of the MOA.
Isabela21 and Mayor Cherrylyn Santos-Akbar, the Province of Sultan The MOA-AD identifies the Parties to it as the GRP and the MILF.
Kudarat22 and Gov. Suharto Mangudadatu, the Municipality of Under the heading "Terms of Reference" (TOR), the MOA-AD
Linamon in Lanao del Norte,23 Ruy Elias Lopez of Davao City and of includes not only four earlier agreements between the GRP and
the Bagobo tribe, Sangguniang Panlungsod member Marino Ridao MILF, but also two agreements between the GRP and the MNLF: the
and businessman Kisin Buxani, both of Cotabato City; and lawyers 1976 Tripoli Agreement, and the Final Peace Agreement on the
Carlo Gomez, Gerardo Dilig, Nesario Awat, Joselito Alisuag, Implementation of the 1976 Tripoli Agreement, signed on September
Richalex Jagmis, all of Palawan City. The Muslim Legal Assistance 2, 1996 during the administration of President Fidel Ramos.
The MOA-AD also identifies as TOR two local statutes - the organic The MOA-AD thus grounds the right to self-governance of the
act for the Autonomous Region in Muslim Mindanao (ARMM)25 and Bangsamoro people on the past suzerain authority of the sultanates.
the Indigenous Peoples Rights Act (IPRA),26 and several international As gathered, the territory defined as the Bangsamoro homeland was
law instruments - the ILO Convention No. 169 Concerning ruled by several sultanates and, specifically in the case of the
Indigenous and Tribal Peoples in Independent Countries in relation to Maranao, by the Pat a Pangampong ku Ranaw, a confederation of
the UN Declaration on the Rights of the Indigenous Peoples, and the independent principalities (pangampong) each ruled by datus and
UN Charter, among others. sultans, none of whom was supreme over the others.35
The MOA-AD includes as a final TOR the generic category of The MOA-AD goes on to describe the Bangsamoro people as "the
"compact rights entrenchment emanating from the regime of dar-ul- ‘First Nation' with defined territory and with a system of government
mua'hada (or territory under compact) and dar-ul-sulh (or territory having entered into treaties of amity and commerce with foreign
under peace agreement) that partakes the nature of a treaty device." nations."
During the height of the Muslim Empire, early Muslim jurists tended The term "First Nation" is of Canadian origin referring to the
to see the world through a simple dichotomy: there was the dar-ul- indigenous peoples of that territory, particularly those known as
Islam (the Abode of Islam) and dar-ul-harb (the Abode of War). The Indians. In Canada, each of these indigenous peoples is equally
first referred to those lands where Islamic laws held sway, while the entitled to be called "First Nation," hence, all of them are usually
second denoted those lands where Muslims were persecuted or where described collectively by the plural "First Nations."36 To that extent,
Muslim laws were outlawed or ineffective.27 This way of viewing the the MOA-AD, by identifying the Bangsamoro people as "the First
world, however, became more complex through the centuries as the Nation" - suggesting its exclusive entitlement to that designation -
Islamic world became part of the international community of nations. departs from the Canadian usage of the term.
As Muslim States entered into treaties with their neighbors, even with The MOA-AD then mentions for the first time the "Bangsamoro
distant States and inter-governmental organizations, the classical Juridical Entity" (BJE) to which it grants the authority and
division of the world into dar-ul-Islam and dar-ul-harb eventually jurisdiction over the Ancestral Domain and Ancestral Lands of the
lost its meaning. New terms were drawn up to describe novel ways of Bangsamoro.37
perceiving non-Muslim territories. For instance, areas like dar-ul- B. TERRITORY
mua'hada (land of compact) and dar-ul-sulh (land of treaty) referred The territory of the Bangsamoro homeland is described as the land
to countries which, though under a secular regime, maintained mass as well as the maritime, terrestrial, fluvial and alluvial domains,
peaceful and cooperative relations with Muslim States, having been including the aerial domain and the atmospheric space above it,
bound to each other by treaty or agreement. Dar-ul-aman (land of embracing the Mindanao-Sulu-Palawan geographic region.38
order), on the other hand, referred to countries which, though not More specifically, the core of the BJE is defined as the present
bound by treaty with Muslim States, maintained freedom of religion geographic area of the ARMM - thus constituting the following areas:
for Muslims.28 Lanao del Sur, Maguindanao, Sulu, Tawi-Tawi, Basilan, and Marawi
It thus appears that the "compact rights entrenchment" emanating City. Significantly, this core also includes certain municipalities of
from the regime of dar-ul-mua'hada and dar-ul-sulh simply refers to Lanao del Norte that voted for inclusion in the ARMM in the 2001
all other agreements between the MILF and the Philippine plebiscite.39
government - the Philippines being the land of compact and peace Outside of this core, the BJE is to cover other provinces, cities,
agreement - that partake of the nature of a treaty device, "treaty" being municipalities and barangays, which are grouped into two categories,
broadly defined as "any solemn agreement in writing that sets out Category A and Category B. Each of these areas is to be subjected to
understandings, obligations, and benefits for both parties which a plebiscite to be held on different dates, years apart from each other.
provides for a framework that elaborates the principles declared in the Thus, Category A areas are to be subjected to a plebiscite not later
[MOA-AD]."29 than twelve (12) months following the signing of the MOA-AD.40
The MOA-AD states that the Parties "HAVE AGREED AND Category B areas, also called "Special Intervention Areas," on the
ACKNOWLEDGED AS FOLLOWS," and starts with its main body. other hand, are to be subjected to a plebiscite twenty-five (25) years
The main body of the MOA-AD is divided into four strands, from the signing of a separate agreement - the Comprehensive
namely, Concepts and Principles, Territory, Resources, and Compact.41
Governance. The Parties to the MOA-AD stipulate that the BJE shall have
A. CONCEPTS AND PRINCIPLES jurisdiction over all natural resources within its "internal waters,"
This strand begins with the statement that it is "the birthright of all defined as extending fifteen (15) kilometers from the coastline of the
Moros and all Indigenous peoples of Mindanao to identify themselves BJE area;42 that the BJE shall also have "territorial waters," which
and be accepted as ‘Bangsamoros.'" It defines "Bangsamoro people" shall stretch beyond the BJE internal waters up to the baselines of the
as the natives or original inhabitants of Mindanao and its adjacent Republic of the Philippines (RP) south east and south west of
islands including Palawan and the Sulu archipelago at the time of mainland Mindanao; and that within these territorial waters, the BJE
conquest or colonization, and their descendants whether mixed or of and the "Central Government" (used interchangeably with RP) shall
full blood, including their spouses.30 exercise joint jurisdiction, authority and management over all natural
Thus, the concept of "Bangsamoro," as defined in this strand of the resources.43 Notably, the jurisdiction over the internal waters is not
MOA-AD, includes not only "Moros" as traditionally understood similarly described as "joint."
even by Muslims,31 but all indigenous peoples of Mindanao and its The MOA-AD further provides for the sharing of minerals on the
adjacent islands. The MOA-AD adds that the freedom of choice of territorial waters between the Central Government and the BJE, in
indigenous peoples shall be respected. What this freedom of choice favor of the latter, through production sharing and economic
consists in has not been specifically defined. cooperation agreement.44 The activities which the Parties are allowed
The MOA-AD proceeds to refer to the "Bangsamoro homeland," the to conduct on the territorial waters are enumerated, among which are
ownership of which is vested exclusively in the Bangsamoro people the exploration and utilization of natural resources, regulation of
by virtue of their prior rights of occupation.32 Both parties to the shipping and fishing activities, and the enforcement of police and
MOA-AD acknowledge that ancestral domain does not form part of safety measures.45 There is no similar provision on the sharing of
the public domain.33 minerals and allowed activities with respect to the internal waters of
The Bangsamoro people are acknowledged as having the right to self- the BJE.
governance, which right is said to be rooted on ancestral territoriality C. RESOURCES
exercised originally under the suzerain authority of their sultanates The MOA-AD states that the BJE is free to enter into any economic
and the Pat a Pangampong ku Ranaw. The sultanates were described cooperation and trade relations with foreign countries and shall have
as states or "karajaan/kadatuan" resembling a body politic endowed the option to establish trade missions in those countries. Such
with all the elements of a nation-state in the modern sense.34 relationships and understandings, however, are not to include
aggression against the GRP. The BJE may also enter into signatories as "the representatives of the Parties," meaning the GRP
environmental cooperation agreements.46 and MILF themselves, and not merely of the negotiating panels.53 In
The external defense of the BJE is to remain the duty and obligation addition, the signature page of the MOA-AD states that it is
of the Central Government. The Central Government is also bound to "WITNESSED BY" Datuk Othman Bin Abd Razak, Special Adviser
"take necessary steps to ensure the BJE's participation in international to the Prime Minister of Malaysia, "ENDORSED BY" Ambassador
meetings and events" like those of the ASEAN and the specialized Sayed Elmasry, Adviser to Organization of the Islamic Conference
agencies of the UN. The BJE is to be entitled to participate in (OIC) Secretary General and Special Envoy for Peace Process in
Philippine official missions and delegations for the negotiation of Southern Philippines, and SIGNED "IN THE PRESENCE OF" Dr.
border agreements or protocols for environmental protection and Albert G. Romulo, Secretary of Foreign Affairs of RP and Dato' Seri
equitable sharing of incomes and revenues involving the bodies of Utama Dr. Rais Bin Yatim, Minister of Foreign Affairs, Malaysia, all
water adjacent to or between the islands forming part of the ancestral of whom were scheduled to sign the Agreement last August 5, 2008.
domain.47 Annexed to the MOA-AD are two documents containing the
With regard to the right of exploring for, producing, and obtaining all respective lists cum maps of the provinces, municipalities, and
potential sources of energy, petroleum, fossil fuel, mineral oil and barangays under Categories A and B earlier mentioned in the
natural gas, the jurisdiction and control thereon is to be vested in the discussion on the strand on TERRITORY.
BJE "as the party having control within its territorial jurisdiction." IV. PROCEDURAL ISSUES
This right carries the proviso that, "in times of national emergency, A. RIPENESS
when public interest so requires," the Central Government may, for a The power of judicial review is limited to actual cases or
fixed period and under reasonable terms as may be agreed upon by controversies.54 Courts decline to issue advisory opinions or to
both Parties, assume or direct the operation of such resources.48 resolve hypothetical or feigned problems, or mere academic
The sharing between the Central Government and the BJE of total questions.55 The limitation of the power of judicial review to actual
production pertaining to natural resources is to be 75:25 in favor of cases and controversies defines the role assigned to the judiciary in a
the BJE.49 tripartite allocation of power, to assure that the courts will not intrude
The MOA-AD provides that legitimate grievances of the Bangsamoro into areas committed to the other branches of government.56
people arising from any unjust dispossession of their territorial and An actual case or controversy involves a conflict of legal rights, an
proprietary rights, customary land tenures, or their marginalization assertion of opposite legal claims, susceptible of judicial resolution as
shall be acknowledged. Whenever restoration is no longer possible, distinguished from a hypothetical or abstract difference or dispute.
reparation is to be in such form as mutually determined by the There must be a contrariety of legal rights that can be interpreted and
Parties.50 enforced on the basis of existing law and jurisprudence.57 The Court
The BJE may modify or cancel the forest concessions, timber can decide the constitutionality of an act or treaty only when a proper
licenses, contracts or agreements, mining concessions, Mineral case between opposing parties is submitted for judicial
Production and Sharing Agreements (MPSA), Industrial Forest determination.58
Management Agreements (IFMA), and other land tenure instruments Related to the requirement of an actual case or controversy is the
granted by the Philippine Government, including those issued by the requirement of ripeness. A question is ripe for adjudication when the
present ARMM.51 act being challenged has had a direct adverse effect on the individual
D. GOVERNANCE challenging it.59 For a case to be considered ripe for adjudication, it
The MOA-AD binds the Parties to invite a multinational third-party is a prerequisite that something had then been accomplished or
to observe and monitor the implementation of the Comprehensive performed by either branch before a court may come into the
Compact. This compact is to embody the "details for the effective picture,60 and the petitioner must allege the existence of an immediate
enforcement" and "the mechanisms and modalities for the actual or threatened injury to itself as a result of the challenged action.61 He
implementation" of the MOA-AD. The MOA-AD explicitly provides must show that he has sustained or is immediately in danger of
that the participation of the third party shall not in any way affect the sustaining some direct injury as a result of the act complained of.62
status of the relationship between the Central Government and the The Solicitor General argues that there is no justiciable controversy
BJE.52 that is ripe for judicial review in the present petitions, reasoning that
The "associative" relationship The unsigned MOA-AD is simply a list of consensus points subject
between the Central Government to further negotiations and legislative enactments as well as
and the BJE constitutional processes aimed at attaining a final peaceful agreement.
The MOA-AD describes the relationship of the Central Government Simply put, the MOA-AD remains to be a proposal that does not
and the BJE as "associative," characterized by shared authority and automatically create legally demandable rights and obligations until
responsibility. And it states that the structure of governance is to be the list of operative acts required have been duly complied with. x x
based on executive, legislative, judicial, and administrative x
institutions with defined powers and functions in the Comprehensive xxxx
Compact. In the cases at bar, it is respectfully submitted that this Honorable
The MOA-AD provides that its provisions requiring "amendments to Court has no authority to pass upon issues based on hypothetical or
the existing legal framework" shall take effect upon signing of the feigned constitutional problems or interests with no concrete bases.
Comprehensive Compact and upon effecting the aforesaid Considering the preliminary character of the MOA-AD, there are no
amendments, with due regard to the non-derogation of prior concrete acts that could possibly violate petitioners' and intervenors'
agreements and within the stipulated timeframe to be contained in rights since the acts complained of are mere contemplated steps
the Comprehensive Compact. As will be discussed later, much of the toward the formulation of a final peace agreement. Plainly, petitioners
present controversy hangs on the legality of this provision. and intervenors' perceived injury, if at all, is merely imaginary and
The BJE is granted the power to build, develop and maintain its own illusory apart from being unfounded and based on mere conjectures.
institutions inclusive of civil service, electoral, financial and banking, (Underscoring supplied)
education, legislation, legal, economic, police and internal security The Solicitor General cites63 the following provisions of the MOA-
force, judicial system and correctional institutions, the details of AD:
which shall be discussed in the negotiation of the comprehensive TERRITORY
compact. xxxx
As stated early on, the MOA-AD was set to be signed on August 5, 2. Toward this end, the Parties enter into the following stipulations:
2008 by Rodolfo Garcia and Mohagher Iqbal, Chairpersons of the xxxx
Peace Negotiating Panels of the GRP and the MILF, respectively. d. Without derogating from the requirements of prior agreements,
Notably, the penultimate paragraph of the MOA-AD identifies the the Government stipulates to conduct and deliver, using all possible
legal measures, within twelve (12) months following the signing of The present petitions allege that respondents GRP Panel and PAPP
the MOA-AD, a plebiscite covering the areas as enumerated in the Esperon drafted the terms of the MOA-AD without consulting the
list and depicted in the map as Category A attached herein (the local government units or communities affected, nor informing them
"Annex"). The Annex constitutes an integral part of this framework of the proceedings. As will be discussed in greater detail later, such
agreement. Toward this end, the Parties shall endeavor to complete omission, by itself, constitutes a departure by respondents from their
the negotiations and resolve all outstanding issues on the mandate under E.O. No. 3.
Comprehensive Compact within fifteen (15) months from the Furthermore, the petitions allege that the provisions of the MOA-AD
signing of the MOA-AD. violate the Constitution. The MOA-AD provides that "any provisions
xxxx of the MOA-AD requiring amendments to the existing legal
GOVERNANCE framework shall come into force upon the signing of a
xxxx Comprehensive Compact and upon effecting the necessary changes
7. The Parties agree that mechanisms and modalities for the actual to the legal framework," implying an amendment of the Constitution
implementation of this MOA-AD shall be spelt out in the to accommodate the MOA-AD. This stipulation, in effect,
Comprehensive Compact to mutually take such steps to enable it to guaranteed to the MILF the amendment of the Constitution. Such act
occur effectively. constitutes another violation of its authority. Again, these points will
Any provisions of the MOA-AD requiring amendments to the be discussed in more detail later.
existing legal framework shall come into force upon the signing of a As the petitions allege acts or omissions on the part of respondent that
Comprehensive Compact and upon effecting the necessary changes exceed their authority, by violating their duties under E.O. No. 3
to the legal framework with due regard to non-derogation of prior and the provisions of the Constitution and statutes, the petitions make
agreements and within the stipulated timeframe to be contained in a prima facie case for Certiorari, Prohibition, and Mandamus, and an
the Comprehensive Compact.64 (Underscoring supplied) actual case or controversy ripe for adjudication exists. When an act
The Solicitor General's arguments fail to persuade. of a branch of government is seriously alleged to have infringed
Concrete acts under the MOA-AD are not necessary to render the the Constitution, it becomes not only the right but in fact the duty
present controversy ripe. In Pimentel, Jr. v. Aguirre,65 this Court of the judiciary to settle the dispute.77
held: B. LOCUS STANDI
x x x [B]y the mere enactment of the questioned law or the approval For a party to have locus standi, one must allege "such a personal
of the challenged action, the dispute is said to have ripened into a stake in the outcome of the controversy as to assure that concrete
judicial controversy even without any other overt act. Indeed, even a adverseness which sharpens the presentation of issues upon which the
singular violation of the Constitution and/or the law is enough to court so largely depends for illumination of difficult constitutional
awaken judicial duty. questions."78
xxxx Because constitutional cases are often public actions in which the
By the same token, when an act of the President, who in our relief sought is likely to affect other persons, a preliminary question
constitutional scheme is a coequal of Congress, is seriously alleged frequently arises as to this interest in the constitutional question
to have infringed the Constitution and the laws x x x settling the raised.79
dispute becomes the duty and the responsibility of the courts.66 When suing as a citizen, the person complaining must allege that he
In Santa Fe Independent School District v. Doe,67 the United States has been or is about to be denied some right or privilege to which he
Supreme Court held that the challenge to the constitutionality of the is lawfully entitled or that he is about to be subjected to some burdens
school's policy allowing student-led prayers and speeches before or penalties by reason of the statute or act complained of.80 When the
games was ripe for adjudication, even if no public prayer had yet issue concerns a public right, it is sufficient that the petitioner is a
been led under the policy, because the policy was being challenged citizen and has an interest in the execution of the laws.81
as unconstitutional on its face.68 For a taxpayer, one is allowed to sue where there is an assertion that
That the law or act in question is not yet effective does not negate public funds are illegally disbursed or deflected to an illegal purpose,
ripeness. For example, in New York v. United States,69 decided in or that there is a wastage of public funds through the enforcement of
1992, the United States Supreme Court held that the action by the an invalid or unconstitutional law.82 The Court retains discretion
State of New York challenging the provisions of the Low-Level whether or not to allow a taxpayer's suit.83
Radioactive Waste Policy Act was ripe for adjudication even if the In the case of a legislator or member of Congress, an act of the
questioned provision was not to take effect until January 1, 1996, Executive that injures the institution of Congress causes a derivative
because the parties agreed that New York had to take immediate but nonetheless substantial injury that can be questioned by
action to avoid the provision's consequences.70 legislators. A member of the House of Representatives has standing
The present petitions pray for Certiorari,71 Prohibition, and to maintain inviolate the prerogatives, powers and privileges vested
Mandamus. Certiorari and Prohibition are remedies granted by law by the Constitution in his office.84
when any tribunal, board or officer has acted, in the case of An organization may be granted standing to assert the rights of its
certiorari, or is proceeding, in the case of prohibition, without or in members,85 but the mere invocation by the Integrated Bar of the
excess of its jurisdiction or with grave abuse of discretion Philippines or any member of the legal profession of the duty to
amounting to lack or excess of jurisdiction.72 Mandamus is a remedy preserve the rule of law does not suffice to clothe it with standing.86
granted by law when any tribunal, corporation, board, officer or As regards a local government unit (LGU), it can seek relief in order
person unlawfully neglects the performance of an act which the law to protect or vindicate an interest of its own, and of the other LGUs.87
specifically enjoins as a duty resulting from an office, trust, or Intervenors, meanwhile, may be given legal standing upon showing
station, or unlawfully excludes another from the use or enjoyment of of facts that satisfy the requirements of the law authorizing
a right or office to which such other is entitled.73 Certiorari, intervention,88 such as a legal interest in the matter in litigation, or in
Mandamus and Prohibition are appropriate remedies to raise the success of either of the parties.
constitutional issues and to review and/or prohibit/nullify, when In any case, the Court has discretion to relax the procedural
proper, acts of legislative and executive officials.74 technicality on locus standi, given the liberal attitude it has exercised,
The authority of the GRP Negotiating Panel is defined by Executive highlighted in the case of David v. Macapagal-Arroyo,89 where
Order No. 3 (E.O. No. 3), issued on February 28, 2001.75 The said technicalities of procedure were brushed aside, the constitutional
executive order requires that "[t]he government's policy framework issues raised being of paramount public interest or of transcendental
for peace, including the systematic approach and the administrative importance deserving the attention of the Court in view of their
structure for carrying out the comprehensive peace process x x x be seriousness, novelty and weight as precedents.90 The Court's
governed by this Executive Order."76 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 raised requires formulation of controlling principles to guide the
Constitution to determine whether the other branches of government bench, the bar, and the public;97 and (d) the case is capable of
have kept themselves within the limits of the Constitution and the repetition yet evading review.98
laws and have not abused the discretion given them, has brushed aside Another exclusionary circumstance that may be considered is where
technical rules of procedure.91 there is a voluntary cessation of the activity complained of by the
In the petitions at bar, petitioners Province of North Cotabato (G.R. defendant or doer. Thus, once a suit is filed and the doer voluntarily
No. 183591) Province of Zamboanga del Norte (G.R. No. 183951), ceases the challenged conduct, it does not automatically deprive the
City of Iligan (G.R. No. 183893) and City of Zamboanga (G.R. No. tribunal of power to hear and determine the case and does not render
183752) and petitioners-in-intervention Province of Sultan the case moot especially when the plaintiff seeks damages or prays
Kudarat, City of Isabela and Municipality of Linamon have locus for injunctive relief against the possible recurrence of the violation.99
standi in view of the direct and substantial injury that they, as LGUs, The present petitions fall squarely into these exceptions to thus thrust
would suffer as their territories, whether in whole or in part, are to be them into the domain of judicial review. The grounds cited above in
included in the intended domain of the BJE. These petitioners allege David are just as applicable in the present cases as they were, not only
that they did not vote for their inclusion in the ARMM which would in David, but also in Province of Batangas v. Romulo100 and Manalo
be expanded to form the BJE territory. Petitioners' legal standing is v. Calderon101 where the Court similarly decided them on the merits,
thus beyond doubt. supervening events that would ordinarily have rendered the same
In G.R. No. 183962, petitioners Ernesto Maceda, Jejomar Binay moot notwithstanding.
and Aquilino Pimentel III would have no standing as citizens and Petitions not mooted
taxpayers for their failure to specify that they would be denied some Contrary then to the asseverations of respondents, the non-signing of
right or privilege or there would be wastage of public funds. The fact the MOA-AD and the eventual dissolution of the GRP Peace Panel
that they are a former Senator, an incumbent mayor of Makati City, did not moot the present petitions. It bears emphasis that the signing
and a resident of Cagayan de Oro, respectively, is of no consequence. of the MOA-AD did not push through due to the Court's issuance of a
Considering their invocation of the transcendental importance of the Temporary Restraining Order.
issues at hand, however, the Court grants them standing. Contrary too to respondents' position, the MOA-AD cannot be
Intervenors Franklin Drilon and Adel Tamano, in alleging their considered a mere "list of consensus points," especially given its
standing as taxpayers, assert that government funds would be nomenclature, the need to have it signed or initialed by all the
expended for the conduct of an illegal and unconstitutional plebiscite parties concerned on August 5, 2008, and the far-reaching
to delineate the BJE territory. On that score alone, they can be given Constitutional implications of these "consensus points," foremost of
legal standing. Their allegation that the issues involved in these which is the creation of the BJE.
petitions are of "undeniable transcendental importance" clothes them In fact, as what will, in the main, be discussed, there is a
with added basis for their personality to intervene in these petitions. commitment on the part of respondents to amend and effect
With regard to Senator Manuel Roxas, his standing is premised on necessary changes to the existing legal framework for certain
his being a member of the Senate and a citizen to enforce compliance provisions of the MOA-AD to take effect. Consequently, the
by respondents of the public's constitutional right to be informed of present petitions are not confined to the terms and provisions of the
the MOA-AD, as well as on a genuine legal interest in the matter in MOA-AD, but to other on-going and future negotiations and
litigation, or in the success or failure of either of the parties. He thus agreements necessary for its realization. The petitions have not,
possesses the requisite standing as an intervenor. therefore, been rendered moot and academic simply by the public
With respect to Intervenors Ruy Elias Lopez, as a former disclosure of the MOA-AD,102 the manifestation that it will not be
congressman of the 3rd district of Davao City, a taxpayer and a signed as well as the disbanding of the GRP Panel not withstanding.
member of the Bagobo tribe; Carlo B. Gomez, et al., as members of Petitions are imbued with paramount public interest
the IBP Palawan chapter, citizens and taxpayers; Marino Ridao, as There is no gainsaying that the petitions are imbued with paramount
taxpayer, resident and member of the Sangguniang Panlungsod of public interest, involving a significant part of the country's territory
Cotabato City; and Kisin Buxani, as taxpayer, they failed to allege and the wide-ranging political modifications of affected LGUs. The
any proper legal interest in the present petitions. Just the same, the assertion that the MOA-AD is subject to further legal enactments
Court exercises its discretion to relax the procedural technicality on including possible Constitutional amendments more than ever
locus standi given the paramount public interest in the issues at hand. provides impetus for the Court to formulate controlling
Intervening respondents Muslim Multi-Sectoral Movement for principles to guide the bench, the bar, the public and, in this case,
Peace and Development, an advocacy group for justice and the the government and its negotiating entity.
attainment of peace and prosperity in Muslim Mindanao; and Muslim Respondents cite Suplico v. NEDA, et al.103 where the Court did not
Legal Assistance Foundation Inc., a non-government organization "pontificat[e] on issues which no longer legitimately constitute an
of Muslim lawyers, allege that they stand to be benefited or actual case or controversy [as this] will do more harm than good to
prejudiced, as the case may be, in the resolution of the petitions the nation as a whole."
concerning the MOA-AD, and prays for the denial of the petitions on The present petitions must be differentiated from Suplico. Primarily,
the grounds therein stated. Such legal interest suffices to clothe them in Suplico, what was assailed and eventually cancelled was a stand-
with standing. alone government procurement contract for a national broadband
B. MOOTNESS network involving a one-time contractual relation between two
Respondents insist that the present petitions have been rendered moot parties-the government and a private foreign corporation. As the
with the satisfaction of all the reliefs prayed for by petitioners and the issues therein involved specific government procurement policies and
subsequent pronouncement of the Executive Secretary that "[n]o standard principles on contracts, the majority opinion in Suplico
matter what the Supreme Court ultimately decides[,] the government found nothing exceptional therein, the factual circumstances being
will not sign the MOA."92 peculiar only to the transactions and parties involved in the
In lending credence to this policy decision, the Solicitor General controversy.
points out that the President had already disbanded the GRP Peace The MOA-AD is part of a series of agreements
Panel.93 In the present controversy, the MOA-AD is a significant part of a
In David v. Macapagal-Arroyo,94 this Court held that the "moot and series of agreements necessary to carry out the Tripoli Agreement
academic" principle not being a magical formula that automatically 2001. The MOA-AD which dwells on the Ancestral Domain Aspect
dissuades courts in resolving a case, it will decide cases, otherwise of said Tripoli Agreement is the third such component to be
moot and academic, if it finds that (a) there is a grave violation of the undertaken following the implementation of the Security Aspect in
Constitution;95 (b) the situation is of exceptional character and August 2001 and the Humanitarian, Rehabilitation and Development
paramount public interest is involved;96 (c) the constitutional issue Aspect in May 2002.
Accordingly, even if the Executive Secretary, in his Memorandum of The right of access to public documents, as enshrined in both the
August 28, 2008 to the Solicitor General, has stated that "no matter 1973 Constitution and the 1987 Constitution, has been recognized as
what the Supreme Court ultimately decides[,] the government will not a self-executory constitutional right.109
sign the MOA[-AD]," mootness will not set in in light of the terms of In the 1976 case of Baldoza v. Hon. Judge Dimaano,110 the Court
the Tripoli Agreement 2001. ruled that access to public records is predicated on the right of the
Need to formulate principles-guidelines people to acquire information on matters of public concern since,
Surely, the present MOA-AD can be renegotiated or another one will undoubtedly, in a democracy, the pubic has a legitimate interest in
be drawn up to carry out the Ancestral Domain Aspect of the matters of social and political significance.
Tripoli Agreement 2001, in another or in any form, which could x x x The incorporation of this right in the Constitution is a
contain similar or significantly drastic provisions. While the Court recognition of the fundamental role of free exchange of information
notes the word of the Executive Secretary that the government "is in a democracy. There can be no realistic perception by the public of
committed to securing an agreement that is both constitutional and the nation's problems, nor a meaningful democratic decision-making
equitable because that is the only way that long-lasting peace can be if they are denied access to information of general interest.
assured," it is minded to render a decision on the merits in the present Information is needed to enable the members of society to cope with
petitions to formulate controlling principles to guide the bench, the exigencies of the times. As has been aptly observed:
the bar, the public and, most especially, the government in "Maintaining the flow of such information depends on protection for
negotiating with the MILF regarding Ancestral Domain. both its acquisition and its dissemination since, if either process is
Respondents invite the Court's attention to the separate opinion of interrupted, the flow inevitably ceases." x x x111
then Chief Justice Artemio Panganiban in Sanlakas v. Reyes104 in In the same way that free discussion enables members of society to
which he stated that the doctrine of "capable of repetition yet evading cope with the exigencies of their time, access to information of
review" can override mootness, "provided the party raising it in a general interest aids the people in democratic decision-making by
proper case has been and/or continue to be prejudiced or damaged as giving them a better perspective of the vital issues confronting the
a direct result of their issuance." They contend that the Court must nation112 so that they may be able to criticize and participate in the
have jurisdiction over the subject matter for the doctrine to be affairs of the government in a responsible, reasonable and effective
invoked. manner. It is by ensuring an unfettered and uninhibited exchange of
The present petitions all contain prayers for Prohibition over which ideas among a well-informed public that a government remains
this Court exercises original jurisdiction. While G.R. No. 183893 responsive to the changes desired by the people.113
(City of Iligan v. GRP) is a petition for Injunction and Declaratory The MOA-AD is a matter of public concern
Relief, the Court will treat it as one for Prohibition as it has far That the subject of the information sought in the present cases is a
reaching implications and raises questions that need to be resolved.105 matter of public concern114 faces no serious challenge. In fact,
At all events, the Court has jurisdiction over most if not the rest of the respondents admit that the MOA-AD is indeed of public concern.115
petitions. In previous cases, the Court found that the regularity of real estate
Indeed, the present petitions afford a proper venue for the Court to transactions entered in the Register of Deeds,116 the need for adequate
again apply the doctrine immediately referred to as what it had done notice to the public of the various laws,117 the civil service eligibility
in a number of landmark cases.106 There is a reasonable expectation of a public employee,118 the proper management of GSIS funds
that petitioners, particularly the Provinces of North Cotabato, allegedly used to grant loans to public officials,119 the recovery of the
Zamboanga del Norte and Sultan Kudarat, the Cities of Zamboanga, Marcoses' alleged ill-gotten wealth,120 and the identity of party-list
Iligan and Isabela, and the Municipality of Linamon, will again be nominees,121 among others, are matters of public concern.
subjected to the same problem in the future as respondents' actions Undoubtedly, the MOA-AD subject of the present cases is of public
are capable of repetition, in another or any form. concern, involving as it does the sovereignty and territorial integrity
It is with respect to the prayers for Mandamus that the petitions have of the State, which directly affects the lives of the public at large.
become moot, respondents having, by Compliance of August 7, 2008, Matters of public concern covered by the right to information include
provided this Court and petitioners with official copies of the final steps and negotiations leading to the consummation of the contract.
draft of the MOA-AD and its annexes. Too, intervenors have been In not distinguishing as to the executory nature or commercial
furnished, or have procured for themselves, copies of the MOA-AD. character of agreements, the Court has categorically ruled:
V. SUBSTANTIVE ISSUES x x x [T]he right to information "contemplates inclusion of
As culled from the Petitions and Petitions-in-Intervention, there are negotiations leading to the consummation of the transaction."
basically two SUBSTANTIVE issues to be resolved, one relating to Certainly, a consummated contract is not a requirement for the
the manner in which the MOA-AD was negotiated and finalized, the exercise of the right to information. Otherwise, the people can never
other relating to its provisions, viz: exercise the right if no contract is consummated, and if one is
1. Did respondents violate constitutional and statutory provisions on consummated, it may be too late for the public to expose its defects.
public consultation and the right to information when they negotiated Requiring a consummated contract will keep the public in the dark
and later initialed the MOA-AD? until the contract, which may be grossly disadvantageous to the
2. Do the contents of the MOA-AD violate the Constitution and the government or even illegal, becomes fait accompli. This negates the
laws? State policy of full transparency on matters of public concern, a
ON THE FIRST SUBSTANTIVE ISSUE situation which the framers of the Constitution could not have
Petitioners invoke their constitutional right to information on intended. Such a requirement will prevent the citizenry from
matters of public concern, as provided in Section 7, Article III on participating in the public discussion of any proposed contract,
the Bill of Rights: effectively truncating a basic right enshrined in the Bill of Rights. We
Sec. 7. The right of the people to information on matters of public can allow neither an emasculation of a constitutional right, nor a
concern shall be recognized. Access to official records, and to retreat by the State of its avowed "policy of full disclosure of all its
documents, and papers pertaining to official acts, transactions, or transactions involving public interest."122 (Emphasis and italics in the
decisions, as well as to government research data used as basis for original)
policy development, shall be afforded the citizen, subject to such Intended as a "splendid symmetry"123 to the right to information under
limitations as may be provided by law.107 the Bill of Rights is the policy of public disclosure under Section 28,
As early as 1948, in Subido v. Ozaeta,108 the Court has recognized Article II of the Constitution reading:
the statutory right to examine and inspect public records, a right Sec. 28. Subject to reasonable conditions prescribed by law, the State
which was eventually accorded constitutional status. adopts and implements a policy of full public disclosure of all its
transactions involving public interest.124
The policy of full public disclosure enunciated in above-quoted I think when we talk about the feedback network, we are not
Section 28 complements the right of access to information on matters talking about public officials but also network of private business
of public concern found in the Bill of Rights. The right to information o[r] community-based organizations that will be reacting. As a
guarantees the right of the people to demand information, while matter of fact, we will put more credence or credibility on the private
Section 28 recognizes the duty of officialdom to give information network of volunteers and voluntary community-based organizations.
even if nobody demands.125 So I do not think we are afraid that there will be another OMA in the
The policy of public disclosure establishes a concrete ethical principle making.132 (Emphasis supplied)
for the conduct of public affairs in a genuinely open democracy, with The imperative of a public consultation, as a species of the right to
the people's right to know as the centerpiece. It is a mandate of the information, is evident in the "marching orders" to respondents. The
State to be accountable by following such policy.126 These provisions mechanics for the duty to disclose information and to conduct public
are vital to the exercise of the freedom of expression and essential to consultation regarding the peace agenda and process is manifestly
hold public officials at all times accountable to the people.127 provided by E.O. No. 3.133 The preambulatory clause of E.O. No. 3
Whether Section 28 is self-executory, the records of the deliberations declares that there is a need to further enhance the contribution of
of the Constitutional Commission so disclose: civil society to the comprehensive peace process by institutionalizing
MR. SUAREZ. And since this is not self-executory, this policy will the people's participation.
not be enunciated or will not be in force and effect until after Congress One of the three underlying principles of the comprehensive peace
shall have provided it. process is that it "should be community-based, reflecting the
MR. OPLE. I expect it to influence the climate of public ethics sentiments, values and principles important to all Filipinos" and "shall
immediately but, of course, the implementing law will have to be be defined not by the government alone, nor by the different
enacted by Congress, Mr. Presiding Officer.128 contending groups only, but by all Filipinos as one community."134
The following discourse, after Commissioner Hilario Davide, Jr., Included as a component of the comprehensive peace process is
sought clarification on the issue, is enlightening. consensus-building and empowerment for peace, which includes
MR. DAVIDE. I would like to get some clarifications on this. Mr. "continuing consultations on both national and local levels to build
Presiding Officer, did I get the Gentleman correctly as having said consensus for a peace agenda and process, and the mobilization and
that this is not a self-executing provision? It would require a facilitation of people's participation in the peace process."135
legislation by Congress to implement? Clearly, E.O. No. 3 contemplates not just the conduct of a
MR. OPLE. Yes. Originally, it was going to be self-executing, but I plebiscite to effectuate "continuing" consultations, contrary to
accepted an amendment from Commissioner Regalado, so that the respondents' position that plebiscite is "more than sufficient
safeguards on national interest are modified by the clause "as may be consultation."136
provided by law" Further, E.O. No. 3 enumerates the functions and responsibilities of
MR. DAVIDE. But as worded, does it not mean that this will the PAPP, one of which is to "[c]onduct regular dialogues with the
immediately take effect and Congress may provide for reasonable National Peace Forum (NPF) and other peace partners to seek
safeguards on the sole ground national interest? relevant information, comments, recommendations as well as to
MR. OPLE. Yes. I think so, Mr. Presiding Officer, I said earlier render appropriate and timely reports on the progress of the
that it should immediately influence the climate of the conduct of comprehensive peace process."137 E.O. No. 3 mandates the
public affairs but, of course, Congress here may no longer pass a law establishment of the NPF to be "the principal forum for the PAPP to
revoking it, or if this is approved, revoking this principle, which is consult with and seek advi[c]e from the peace advocates, peace
inconsistent with this policy.129 (Emphasis supplied) partners and concerned sectors of society on both national and local
Indubitably, the effectivity of the policy of public disclosure need levels, on the implementation of the comprehensive peace process, as
not await the passing of a statute. As Congress cannot revoke this well as for government[-]civil society dialogue and consensus-
principle, it is merely directed to provide for "reasonable safeguards." building on peace agenda and initiatives."138
The complete and effective exercise of the right to information In fine, E.O. No. 3 establishes petitioners' right to be consulted on
necessitates that its complementary provision on public disclosure the peace agenda, as a corollary to the constitutional right to
derive the same self-executory nature. Since both provisions go hand- information and disclosure.
in-hand, it is absurd to say that the broader130 right to information on PAPP Esperon committed grave abuse of discretion
matters of public concern is already enforceable while the correlative The PAPP committed grave abuse of discretion when he failed to
duty of the State to disclose its transactions involving public interest carry out the pertinent consultation. The furtive process by which the
is not enforceable until there is an enabling law. Respondents cannot MOA-AD was designed and crafted runs contrary to and in excess
thus point to the absence of an implementing legislation as an excuse of the legal authority, and amounts to a whimsical, capricious,
in not effecting such policy. oppressive, arbitrary and despotic exercise thereof.
An essential element of these freedoms is to keep open a continuing The Court may not, of course, require the PAPP to conduct the
dialogue or process of communication between the government and consultation in a particular way or manner. It may, however, require
the people. It is in the interest of the State that the channels for free him to comply with the law and discharge the functions within the
political discussion be maintained to the end that the government may authority granted by the President.139
perceive and be responsive to the people's will.131 Envisioned to be Petitioners are not claiming a seat at the negotiating table, contrary to
corollary to the twin rights to information and disclosure is the design respondents' retort in justifying the denial of petitioners' right to be
for feedback mechanisms. consulted. Respondents' stance manifests the manner by which they
MS. ROSARIO BRAID. Yes. And lastly, Mr. Presiding Officer, will treat the salient provisions of E.O. No. 3 on people's participation.
the people be able to participate? Will the government provide Such disregard of the express mandate of the President is not much
feedback mechanisms so that the people can participate and can different from superficial conduct toward token provisos that border
react where the existing media facilities are not able to provide on classic lip service.140 It illustrates a gross evasion of positive duty
full feedback mechanisms to the government? I suppose this will and a virtual refusal to perform the duty enjoined.
be part of the government implementing operational As for respondents' invocation of the doctrine of executive privilege,
mechanisms. it is not tenable under the premises. The argument defies sound reason
MR. OPLE. Yes. I think through their elected representatives and that when contrasted with E.O. No. 3's explicit provisions on continuing
is how these courses take place. There is a message and a feedback, consultation and dialogue on both national and local levels. The
both ways. executive order even recognizes the exercise of the public's right
xxxx even before the GRP makes its official recommendations or before
MS. ROSARIO BRAID. Mr. Presiding Officer, may I just make one the government proffers its definite propositions.141 It bear emphasis
last sentence?
that E.O. No. 3 seeks to elicit relevant advice, information, comments the need to amend the existing legal framework to render effective
and recommendations from the people through dialogue. at least some of its provisions. Respondents, nonetheless, counter
AT ALL EVENTS, respondents effectively waived the defense of that the MOA-AD is free of any legal infirmity because any
executive privilege in view of their unqualified disclosure of the provisions therein which are inconsistent with the present legal
official copies of the final draft of the MOA-AD. By unconditionally framework will not be effective until the necessary changes to that
complying with the Court's August 4, 2008 Resolution, without a framework are made. The validity of this argument will be
prayer for the document's disclosure in camera, or without a considered later. For now, the Court shall pass upon how
manifestation that it was complying therewith ex abundante ad The MOA-AD is inconsistent with the Constitution and laws as
cautelam. presently worded.
Petitioners' assertion that the Local Government Code (LGC) of 1991 In general, the objections against the MOA-AD center on the extent
declares it a State policy to "require all national agencies and offices of the powers conceded therein to the BJE. Petitioners assert that the
to conduct periodic consultations with appropriate local government powers granted to the BJE exceed those granted to any local
units, non-governmental and people's organizations, and other government under present laws, and even go beyond those of the
concerned sectors of the community before any project or program is present ARMM. Before assessing some of the specific powers that
implemented in their respective jurisdictions"142 is well-taken. The would have been vested in the BJE, however, it would be useful to
LGC chapter on intergovernmental relations puts flesh into this turn first to a general idea that serves as a unifying link to the different
avowed policy: provisions of the MOA-AD, namely, the international law concept of
Prior Consultations Required. - No project or program shall be association. Significantly, the MOA-AD explicitly alludes to this
implemented by government authorities unless the consultations concept, indicating that the Parties actually framed its provisions with
mentioned in Sections 2 (c) and 26 hereof are complied with, and it in mind.
prior approval of the sanggunian concerned is obtained: Provided, Association is referred to in paragraph 3 on TERRITORY,
That occupants in areas where such projects are to be implemented paragraph 11 on RESOURCES, and paragraph 4 on
shall not be evicted unless appropriate relocation sites have been GOVERNANCE. It is in the last mentioned provision, however, that
provided, in accordance with the provisions of the Constitution.143 the MOA-AD most clearly uses it to describe the envisioned
(Italics and underscoring supplied) relationship between the BJE and the Central Government.
In Lina, Jr. v. Hon. Paño,144 the Court held that the above-stated 4. The relationship between the Central Government and the
policy and above-quoted provision of the LGU apply only to national Bangsamoro juridical entity shall be associative characterized
programs or projects which are to be implemented in a particular local by shared authority and responsibility with a structure of
community. Among the programs and projects covered are those that governance based on executive, legislative, judicial and
are critical to the environment and human ecology including those administrative institutions with defined powers and functions in the
that may call for the eviction of a particular group of people residing comprehensive compact. A period of transition shall be established
in the locality where these will be implemented.145 The MOA-AD is in a comprehensive peace compact specifying the relationship
one peculiar program that unequivocally and unilaterally vests between the Central Government and the BJE. (Emphasis and
ownership of a vast territory to the Bangsamoro people,146 which underscoring supplied)
could pervasively and drastically result to the diaspora or The nature of the "associative" relationship may have been intended
displacement of a great number of inhabitants from their total to be defined more precisely in the still to be forged Comprehensive
environment. Compact. Nonetheless, given that there is a concept of "association"
With respect to the indigenous cultural communities/indigenous in international law, and the MOA-AD - by its inclusion of
peoples (ICCs/IPs), whose interests are represented herein by international law instruments in its TOR- placed itself in an
petitioner Lopez and are adversely affected by the MOA-AD, the international legal context, that concept of association may be
ICCs/IPs have, under the IPRA, the right to participate fully at all brought to bear in understanding the use of the term "associative" in
levels of decision-making in matters which may affect their rights, the MOA-AD.
lives and destinies.147 The MOA-AD, an instrument recognizing Keitner and Reisman state that
ancestral domain, failed to justify its non-compliance with the clear- [a]n association is formed when two states of unequal power
cut mechanisms ordained in said Act,148 which entails, among other voluntarily establish durable links. In the basic model, one state, the
things, the observance of the free and prior informed consent of the associate, delegates certain responsibilities to the other, the
ICCs/IPs. principal, while maintaining its international status as a state.
Notably, the IPRA does not grant the Executive Department or any Free associations represent a middle ground between
government agency the power to delineate and recognize an ancestral integration and independence. x x x150 (Emphasis and
domain claim by mere agreement or compromise. The recognition of underscoring supplied)
the ancestral domain is the raison d'etre of the MOA-AD, without For purposes of illustration, the Republic of the Marshall Islands
which all other stipulations or "consensus points" necessarily must and the Federated States of Micronesia (FSM), formerly part of the
fail. In proceeding to make a sweeping declaration on ancestral U.S.-administered Trust Territory of the Pacific Islands,151 are
domain, without complying with the IPRA, which is cited as one of associated states of the U.S. pursuant to a Compact of Free
the TOR of the MOA-AD, respondents clearly transcended the Association. The currency in these countries is the U.S. dollar,
boundaries of their authority. As it seems, even the heart of the indicating their very close ties with the U.S., yet they issue their
MOA-AD is still subject to necessary changes to the legal framework. own travel documents, which is a mark of their statehood. Their
While paragraph 7 on Governance suspends the effectivity of all international legal status as states was confirmed by the UN Security
provisions requiring changes to the legal framework, such clause is Council and by their admission to UN membership.
itself invalid, as will be discussed in the following section. According to their compacts of free association, the Marshall Islands
Indeed, ours is an open society, with all the acts of the government and the FSM generally have the capacity to conduct foreign affairs
subject to public scrutiny and available always to public cognizance. in their own name and right, such capacity extending to matters such
This has to be so if the country is to remain democratic, with as the law of the sea, marine resources, trade, banking, postal, civil
sovereignty residing in the people and all government authority aviation, and cultural relations. The U.S. government, when
emanating from them.149 conducting its foreign affairs, is obligated to consult with the
ON THE SECOND SUBSTANTIVE ISSUE governments of the Marshall Islands or the FSM on matters which it
With regard to the provisions of the MOA-AD, there can be no (U.S. government) regards as relating to or affecting either
question that they cannot all be accommodated under the present government.
Constitution and laws. Respondents have admitted as much in the In the event of attacks or threats against the Marshall Islands or the
oral arguments before this Court, and the MOA-AD itself recognizes 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. Montevideo Convention,154 namely, a permanent population, a
government, moreover, has the option of establishing and using defined territory, a government, and a capacity to enter into relations
military areas and facilities within these associated states and has the with other states.
right to bar the military personnel of any third country from having Even assuming arguendo that the MOA-AD would not necessarily
access to these territories for military purposes. sever any portion of Philippine territory, the spirit animating it -
It bears noting that in U.S. constitutional and international practice, which has betrayed itself by its use of the concept of association -
free association is understood as an international association runs counter to the national sovereignty and territorial integrity
between sovereigns. The Compact of Free Association is a treaty of the Republic.
which is subordinate to the associated nation's national constitution, The defining concept underlying the relationship between the
and each party may terminate the association consistent with the national government and the BJE being itself contrary to the
right of independence. It has been said that, with the admission of present Constitution, it is not surprising that many of the specific
the U.S.-associated states to the UN in 1990, the UN recognized that provisions of the MOA-AD on the formation and powers of the
the American model of free association is actually based on an BJE are in conflict with the Constitution and the laws.
underlying status of independence.152 Article X, Section 18 of the Constitution provides that "[t]he creation
In international practice, the "associated state" arrangement has of the autonomous region shall be effective when approved by a
usually been used as a transitional device of former colonies on majority of the votes cast by the constituent units in a plebiscite called
their way to full independence. Examples of states that have passed for the purpose, provided that only provinces, cities, and geographic
through the status of associated states as a transitional phase are areas voting favorably in such plebiscite shall be included in the
Antigua, St. Kitts-Nevis-Anguilla, Dominica, St. Lucia, St. Vincent autonomous region." (Emphasis supplied)
and Grenada. All have since become independent states.153 As reflected above, the BJE is more of a state than an autonomous
Back to the MOA-AD, it contains many provisions which are region. But even assuming that it is covered by the term "autonomous
consistent with the international legal concept of association, region" in the constitutional provision just quoted, the MOA-AD
specifically the following: the BJE's capacity to enter into economic would still be in conflict with it. Under paragraph 2(c) on
and trade relations with foreign countries, the commitment of the TERRITORY in relation to 2(d) and 2(e), the present geographic area
Central Government to ensure the BJE's participation in meetings of the ARMM and, in addition, the municipalities of Lanao del Norte
and events in the ASEAN and the specialized UN agencies, and the which voted for inclusion in the ARMM during the 2001 plebiscite -
continuing responsibility of the Central Government over external Baloi, Munai, Nunungan, Pantar, Tagoloan and Tangkal - are
defense. Moreover, the BJE's right to participate in Philippine automatically part of the BJE without need of another plebiscite, in
official missions bearing on negotiation of border agreements, contrast to the areas under Categories A and B mentioned earlier in
environmental protection, and sharing of revenues pertaining to the the overview. That the present components of the ARMM and the
bodies of water adjacent to or between the islands forming part of above-mentioned municipalities voted for inclusion therein in 2001,
the ancestral domain, resembles the right of the governments of however, does not render another plebiscite unnecessary under the
FSM and the Marshall Islands to be consulted by the U.S. Constitution, precisely because what these areas voted for then was
government on any foreign affairs matter affecting them. their inclusion in the ARMM, not the BJE.
These provisions of the MOA indicate, among other things, that the The MOA-AD, moreover, would not
Parties aimed to vest in the BJE the status of an associated state comply with Article X, Section 20 of
or, at any rate, a status closely approximating it. the Constitution
The concept of association is not recognized under the present since that provision defines the powers of autonomous regions as
Constitution follows:
No province, city, or municipality, not even the ARMM, is SECTION 20. Within its territorial jurisdiction and subject to the
recognized under our laws as having an "associative" relationship provisions of this Constitution and national laws, the organic act of
with the national government. Indeed, the concept implies powers autonomous regions shall provide for legislative powers over:
that go beyond anything ever granted by the Constitution to any local (1) Administrative organization;
or regional government. It also implies the recognition of the (2) Creation of sources of revenues;
associated entity as a state. The Constitution, however, does not (3) Ancestral domain and natural resources;
contemplate any state in this jurisdiction other than the Philippine (4) Personal, family, and property relations;
State, much less does it provide for a transitory status that aims to (5) Regional urban and rural planning development;
prepare any part of Philippine territory for independence. (6) Economic, social, and tourism development;
Even the mere concept animating many of the MOA-AD's provisions, (7) Educational policies;
therefore, already requires for its validity the amendment of (8) Preservation and development of the cultural heritage; and
constitutional provisions, specifically the following provisions of (9) Such other matters as may be authorized by law for the promotion
Article X: of the general welfare of the people of the region. (Underscoring
SECTION 1. The territorial and political subdivisions of the Republic supplied)
of the Philippines are the provinces, cities, municipalities, and Again on the premise that the BJE may be regarded as an autonomous
barangays. There shall be autonomous regions in Muslim region, the MOA-AD would require an amendment that would
Mindanao and the Cordilleras as hereinafter provided. expand the above-quoted provision. The mere passage of new
SECTION 15. There shall be created autonomous regions in Muslim legislation pursuant to sub-paragraph No. 9 of said constitutional
Mindanao and in the Cordilleras consisting of provinces, cities, provision would not suffice, since any new law that might vest in the
municipalities, and geographical areas sharing common and BJE the powers found in the MOA-AD must, itself, comply with
distinctive historical and cultural heritage, economic and social other provisions of the Constitution. It would not do, for instance, to
structures, and other relevant characteristics within the framework merely pass legislation vesting the BJE with treaty-making power in
of this Constitution and the national sovereignty as well as order to accommodate paragraph 4 of the strand on RESOURCES
territorial integrity of the Republic of the Philippines. which states: "The BJE is free to enter into any economic cooperation
The BJE is a far more powerful and trade relations with foreign countries: provided, however, that
entity than the autonomous region such relationships and understandings do not include aggression
recognized in the Constitution against the Government of the Republic of the Philippines x x x."
It is not merely an expanded version of the ARMM, the status of its Under our constitutional system, it is only the President who has that
relationship with the national government being fundamentally power. Pimentel v. Executive Secretary155 instructs:
different from that of the ARMM. Indeed, BJE is a state in all but In our system of government, the President, being the head of state,
name as it meets the criteria of a state laid down in the is regarded as the sole organ and authority in external relations
and is the country's sole representative with foreign nations. As be immediately undertaken by the Ancestral Domains Office upon
the chief architect of foreign policy, the President acts as the country's filing of the application by the ICCs/IPs concerned. Delineation will
mouthpiece with respect to international affairs. Hence, the be done in coordination with the community concerned and shall at
President is vested with the authority to deal with foreign states all times include genuine involvement and participation by the
and governments, extend or withhold recognition, maintain members of the communities concerned;
diplomatic relations, enter into treaties, and otherwise transact d) Proof Required. - Proof of Ancestral Domain Claims shall include
the business of foreign relations. In the realm of treaty-making, the testimony of elders or community under oath, and other
the President has the sole authority to negotiate with other states. documents directly or indirectly attesting to the possession or
(Emphasis and underscoring supplied) occupation of the area since time immemorial by such ICCs/IPs in the
Article II, Section 22 of the Constitution must also be amended if concept of owners which shall be any one (1) of the following
the scheme envisioned in the MOA-AD is to be effected. That authentic documents:
constitutional provision states: "The State recognizes and promotes 1) Written accounts of the ICCs/IPs customs and traditions;
the rights of indigenous cultural communities within the framework 2) Written accounts of the ICCs/IPs political structure and institution;
of national unity and development." (Underscoring supplied) An 3) Pictures showing long term occupation such as those of old
associative arrangement does not uphold national unity. While there improvements, burial grounds, sacred places and old villages;
may be a semblance of unity because of the associative ties between 4) Historical accounts, including pacts and agreements concerning
the BJE and the national government, the act of placing a portion of boundaries entered into by the ICCs/IPs concerned with other
Philippine territory in a status which, in international practice, has ICCs/IPs;
generally been a preparation for independence, is certainly not 5) Survey plans and sketch maps;
conducive to national unity. 6) Anthropological data;
Besides being irreconcilable with the Constitution, the MOA-AD is 7) Genealogical surveys;
also inconsistent with prevailing statutory law, among which are 8) Pictures and descriptive histories of traditional communal forests
R.A. No. 9054156 or the Organic Act of the ARMM, and the IPRA.157 and hunting grounds;
Article X, Section 3 of the Organic Act of the ARMM is a bar to 9) Pictures and descriptive histories of traditional landmarks such as
the adoption of the definition of "Bangsamoro people" used in the mountains, rivers, creeks, ridges, hills, terraces and the like; and
MOA-AD. Paragraph 1 on Concepts and Principles states: 10) Write-ups of names and places derived from the native dialect of
1. It is the birthright of all Moros and all Indigenous peoples of the community.
Mindanao to identify themselves and be accepted as e) Preparation of Maps. - On the basis of such investigation and the
"Bangsamoros". The Bangsamoro people refers to those who are findings of fact based thereon, the Ancestral Domains Office of the
natives or original inhabitants of Mindanao and its adjacent NCIP shall prepare a perimeter map, complete with technical
islands including Palawan and the Sulu archipelago at the time of descriptions, and a description of the natural features and landmarks
conquest or colonization of its descendants whether mixed or of full embraced therein;
blood. Spouses and their descendants are classified as Bangsamoro. f) Report of Investigation and Other Documents. - A complete copy
The freedom of choice of the Indigenous people shall be respected. of the preliminary census and a report of investigation, shall be
(Emphasis and underscoring supplied) prepared by the Ancestral Domains Office of the NCIP;
This use of the term Bangsamoro sharply contrasts with that found in g) Notice and Publication. - A copy of each document, including a
the Article X, Section 3 of the Organic Act, which, rather than translation in the native language of the ICCs/IPs concerned shall be
lumping together the identities of the Bangsamoro and other posted in a prominent place therein for at least fifteen (15) days. A
indigenous peoples living in Mindanao, clearly distinguishes copy of the document shall also be posted at the local, provincial and
between Bangsamoro people and Tribal peoples, as follows: regional offices of the NCIP, and shall be published in a newspaper
"As used in this Organic Act, the phrase "indigenous cultural of general circulation once a week for two (2) consecutive weeks to
community" refers to Filipino citizens residing in the autonomous allow other claimants to file opposition thereto within fifteen (15)
region who are: days from date of such publication: Provided, That in areas where no
(a) Tribal peoples. These are citizens whose social, cultural and such newspaper exists, broadcasting in a radio station will be a valid
economic conditions distinguish them from other sectors of the substitute: Provided, further, That mere posting shall be deemed
national community; and sufficient if both newspaper and radio station are not available;
(b) Bangsa Moro people. These are citizens who are believers in h) Endorsement to NCIP. - Within fifteen (15) days from publication,
Islam and who have retained some or all of their own social, and of the inspection process, the Ancestral Domains Office shall
economic, cultural, and political institutions." prepare a report to the NCIP endorsing a favorable action upon a
Respecting the IPRA, it lays down the prevailing procedure for the claim that is deemed to have sufficient proof. However, if the proof
delineation and recognition of ancestral domains. The MOA-AD's is deemed insufficient, the Ancestral Domains Office shall require the
manner of delineating the ancestral domain of the Bangsamoro people submission of additional evidence: Provided, That the Ancestral
is a clear departure from that procedure. By paragraph 1 of Territory, Domains Office shall reject any claim that is deemed patently false or
the Parties simply agree that, subject to the delimitations in the agreed fraudulent after inspection and verification: Provided, further, That in
Schedules, "[t]he Bangsamoro homeland and historic territory refer case of rejection, the Ancestral Domains Office shall give the
to the land mass as well as the maritime, terrestrial, fluvial and applicant due notice, copy furnished all concerned, containing the
alluvial domains, and the aerial domain, the atmospheric space above grounds for denial. The denial shall be appealable to the NCIP:
it, embracing the Mindanao-Sulu-Palawan geographic region." Provided, furthermore, That in cases where there are conflicting
Chapter VIII of the IPRA, on the other hand, lays down a detailed claims among ICCs/IPs on the boundaries of ancestral domain claims,
procedure, as illustrated in the following provisions thereof: the Ancestral Domains Office shall cause the contending parties to
SECTION 52. Delineation Process. - The identification and meet and assist them in coming up with a preliminary resolution of
delineation of ancestral domains shall be done in accordance with the the conflict, without prejudice to its full adjudication according to the
following procedures: section below.
xxxx xxxx
b) Petition for Delineation. - The process of delineating a specific To remove all doubts about the irreconcilability of the MOA-AD with
perimeter may be initiated by the NCIP with the consent of the ICC/IP the present legal system, a discussion of not only the Constitution and
concerned, or through a Petition for Delineation filed with the NCIP, domestic statutes, but also of international law is in order, for
by a majority of the members of the ICCs/IPs; Article II, Section 2 of the Constitution states that the Philippines
c) Delineation Proper. - The official delineation of ancestral domain "adopts the generally accepted principles of international law as
boundaries including census of all community members therein, shall part of the law of the land."
Applying this provision of the Constitution, the Court, in Mejoff v. JURISTS ON THE LEGAL ASPECTS OF THE AALAND
Director of Prisons,158 held that the Universal Declaration of Human ISLANDS QUESTION.163 There, Sweden presented to the Council
Rights is part of the law of the land on account of which it ordered of the League of Nations the question of whether the inhabitants of
the release on bail of a detained alien of Russian descent whose the Aaland Islands should be authorized to determine by plebiscite if
deportation order had not been executed even after two years. the archipelago should remain under Finnish sovereignty or be
Similarly, the Court in Agustin v. Edu159 applied the aforesaid incorporated in the kingdom of Sweden. The Council, before
constitutional provision to the 1968 Vienna Convention on Road resolving the question, appointed an International Committee
Signs and Signals. composed of three jurists to submit an opinion on the preliminary
International law has long recognized the right to self-determination issue of whether the dispute should, based on international law, be
of "peoples," understood not merely as the entire population of a State entirely left to the domestic jurisdiction of Finland. The Committee
but also a portion thereof. In considering the question of whether the stated the rule as follows:
people of Quebec had a right to unilaterally secede from Canada, the x x x [I]n the absence of express provisions in international treaties,
Canadian Supreme Court in REFERENCE RE SECESSION OF the right of disposing of national territory is essentially an
QUEBEC160 had occasion to acknowledge that "the right of a people attribute of the sovereignty of every State. Positive International
to self-determination is now so widely recognized in international Law does not recognize the right of national groups, as such, to
conventions that the principle has acquired a status beyond separate themselves from the State of which they form part by
‘convention' and is considered a general principle of international the simple expression of a wish, any more than it recognizes the
law." right of other States to claim such a separation. Generally speaking,
Among the conventions referred to are the International Covenant on the grant or refusal of the right to a portion of its population of
Civil and Political Rights161 and the International Covenant on determining its own political fate by plebiscite or by some other
Economic, Social and Cultural Rights162 which state, in Article 1 of method, is, exclusively, an attribute of the sovereignty of every
both covenants, that all peoples, by virtue of the right of self- State which is definitively constituted. A dispute between two
determination, "freely determine their political status and freely States concerning such a question, under normal conditions therefore,
pursue their economic, social, and cultural development." bears upon a question which International Law leaves entirely to the
The people's right to self-determination should not, however, be domestic jurisdiction of one of the States concerned. Any other
understood as extending to a unilateral right of secession. A solution would amount to an infringement of sovereign rights of a
distinction should be made between the right of internal and external State and would involve the risk of creating difficulties and a lack of
self-determination. REFERENCE RE SECESSION OF QUEBEC is stability which would not only be contrary to the very idea embodied
again instructive: in term "State," but would also endanger the interests of the
"(ii) Scope of the Right to Self-determination international community. If this right is not possessed by a large or
126. The recognized sources of international law establish that the small section of a nation, neither can it be held by the State to which
right to self-determination of a people is normally fulfilled the national group wishes to be attached, nor by any other State.
through internal self-determination - a people's pursuit of its (Emphasis and underscoring supplied)
political, economic, social and cultural development within the The Committee held that the dispute concerning the Aaland Islands
framework of an existing state. A right to external self- did not refer to a question which is left by international law to the
determination (which in this case potentially takes the form of the domestic jurisdiction of Finland, thereby applying the exception
assertion of a right to unilateral secession) arises in only the most rather than the rule elucidated above. Its ground for departing from
extreme of cases and, even then, under carefully defined the general rule, however, was a very narrow one, namely, the Aaland
circumstances. x x x Islands agitation originated at a time when Finland was undergoing
External self-determination can be defined as in the following drastic political transformation. The internal situation of Finland was,
statement from the Declaration on Friendly Relations, supra, as according to the Committee, so abnormal that, for a considerable
The establishment of a sovereign and independent State, the free time, the conditions required for the formation of a sovereign State
association or integration with an independent State or the did not exist. In the midst of revolution, anarchy, and civil war, the
emergence into any other political status freely determined by a legitimacy of the Finnish national government was disputed by a large
people constitute modes of implementing the right of self- section of the people, and it had, in fact, been chased from the capital
determination by that people. (Emphasis added) and forcibly prevented from carrying out its duties. The armed camps
127. The international law principle of self-determination has and the police were divided into two opposing forces. In light of these
evolved within a framework of respect for the territorial integrity circumstances, Finland was not, during the relevant time period, a
of existing states. The various international documents that support "definitively constituted" sovereign state. The Committee, therefore,
the existence of a people's right to self-determination also contain found that Finland did not possess the right to withhold from a portion
parallel statements supportive of the conclusion that the exercise of of its population the option to separate itself - a right which sovereign
such a right must be sufficiently limited to prevent threats to an nations generally have with respect to their own populations.
existing state's territorial integrity or the stability of relations between Turning now to the more specific category of indigenous peoples, this
sovereign states. term has been used, in scholarship as well as international, regional,
x x x x (Emphasis, italics and underscoring supplied) and state practices, to refer to groups with distinct cultures, histories,
The Canadian Court went on to discuss the exceptional cases in which and connections to land (spiritual and otherwise) that have been
the right to external self-determination can arise, namely, where a forcibly incorporated into a larger governing society. These groups
people is under colonial rule, is subject to foreign domination or are regarded as "indigenous" since they are the living descendants of
exploitation outside a colonial context, and - less definitely but pre-invasion inhabitants of lands now dominated by others.
asserted by a number of commentators - is blocked from the Otherwise stated, indigenous peoples, nations, or communities are
meaningful exercise of its right to internal self-determination. The culturally distinctive groups that find themselves engulfed by settler
Court ultimately held that the population of Quebec had no right to societies born of the forces of empire and conquest.164 Examples of
secession, as the same is not under colonial rule or foreign groups who have been regarded as indigenous peoples are the Maori
domination, nor is it being deprived of the freedom to make political of New Zealand and the aboriginal peoples of Canada.
choices and pursue economic, social and cultural development, citing As with the broader category of "peoples," indigenous peoples
that Quebec is equitably represented in legislative, executive and situated within states do not have a general right to independence or
judicial institutions within Canada, even occupying prominent secession from those states under international law,165 but they do
positions therein. have rights amounting to what was discussed above as the right to
The exceptional nature of the right of secession is further exemplified internal self-determination.
in the REPORT OF THE INTERNATIONAL COMMITTEE OF
In a historic development last September 13, 2007, the UN General 2. States shall undertake effective consultations with the indigenous
Assembly adopted the United Nations Declaration on the Rights of peoples concerned, through appropriate procedures and in particular
Indigenous Peoples (UN DRIP) through General Assembly through their representative institutions, prior to using their lands or
Resolution 61/295. The vote was 143 to 4, the Philippines being territories for military activities.
included among those in favor, and the four voting against being Article 32
Australia, Canada, New Zealand, and the U.S. The Declaration 1. Indigenous peoples have the right to determine and develop
clearly recognized the right of indigenous peoples to self- priorities and strategies for the development or use of their lands or
determination, encompassing the right to autonomy or self- territories and other resources.
government, to wit: 2. States shall consult and cooperate in good faith with the indigenous
Article 3 peoples concerned through their own representative institutions in
Indigenous peoples have the right to self-determination. By virtue of order to obtain their free and informed consent prior to the approval
that right they freely determine their political status and freely pursue of any project affecting their lands or territories and other resources,
their economic, social and cultural development. particularly in connection with the development, utilization or
Article 4 exploitation of mineral, water or other resources.
Indigenous peoples, in exercising their right to self-determination, 3. States shall provide effective mechanisms for just and fair redress
have the right to autonomy or self-government in matters relating for any such activities, and appropriate measures shall be taken to
to their internal and local affairs, as well as ways and means for mitigate adverse environmental, economic, social, cultural or
financing their autonomous functions. spiritual impact.
Article 5 Article 37
Indigenous peoples have the right to maintain and strengthen their 1. Indigenous peoples have the right to the recognition, observance
distinct political, legal, economic, social and cultural institutions, and enforcement of treaties, agreements and other constructive
while retaining their right to participate fully, if they so choose, in the arrangements concluded with States or their successors and to have
political, economic, social and cultural life of the State. States honour and respect such treaties, agreements and other
Self-government, as used in international legal discourse pertaining constructive arrangements.
to indigenous peoples, has been understood as equivalent to "internal 2. Nothing in this Declaration may be interpreted as diminishing or
self-determination."166 The extent of self-determination provided for eliminating the rights of indigenous peoples contained in treaties,
in the UN DRIP is more particularly defined in its subsequent articles, agreements and other constructive arrangements.
some of which are quoted hereunder: Article 38
Article 8 States in consultation and cooperation with indigenous peoples, shall
1. Indigenous peoples and individuals have the right not to be take the appropriate measures, including legislative measures, to
subjected to forced assimilation or destruction of their culture. achieve the ends of this Declaration.
2. States shall provide effective mechanisms for prevention of, Assuming that the UN DRIP, like the Universal Declaration on
and redress for: Human Rights, must now be regarded as embodying customary
(a) Any action which has the aim or effect of depriving them of international law - a question which the Court need not definitively
their integrity as distinct peoples, or of their cultural values or resolve here - the obligations enumerated therein do not strictly
ethnic identities; require the Republic to grant the Bangsamoro people, through the
(b) Any action which has the aim or effect of dispossessing them instrumentality of the BJE, the particular rights and powers provided
of their lands, territories or resources; for in the MOA-AD. Even the more specific provisions of the UN
(c) Any form of forced population transfer which has the aim or DRIP are general in scope, allowing for flexibility in its application
effect of violating or undermining any of their rights; by the different States.
(d) Any form of forced assimilation or integration; There is, for instance, no requirement in the UN DRIP that States now
(e) Any form of propaganda designed to promote or incite racial guarantee indigenous peoples their own police and internal security
or ethnic discrimination directed against them. force. Indeed, Article 8 presupposes that it is the State which will
Article 21 provide protection for indigenous peoples against acts like the forced
1. Indigenous peoples have the right, without discrimination, to the dispossession of their lands - a function that is normally performed
improvement of their economic and social conditions, including, inter by police officers. If the protection of a right so essential to
alia, in the areas of education, employment, vocational training and indigenous people's identity is acknowledged to be the responsibility
retraining, housing, sanitation, health and social security. of the State, then surely the protection of rights less significant to
2. States shall take effective measures and, where appropriate, special them as such peoples would also be the duty of States. Nor is there in
measures to ensure continuing improvement of their economic and the UN DRIP an acknowledgement of the right of indigenous peoples
social conditions. Particular attention shall be paid to the rights and to the aerial domain and atmospheric space. What it upholds, in
special needs of indigenous elders, women, youth, children and Article 26 thereof, is the right of indigenous peoples to the lands,
persons with disabilities. territories and resources which they have traditionally owned,
Article 26 occupied or otherwise used or acquired.
1. Indigenous peoples have the right to the lands, territories and Moreover, the UN DRIP, while upholding the right of indigenous
resources which they have traditionally owned, occupied or peoples to autonomy, does not obligate States to grant indigenous
otherwise used or acquired. peoples the near-independent status of an associated state. All the
2. Indigenous peoples have the right to own, use, develop and control rights recognized in that document are qualified in Article 46 as
the lands, territories and resources that they possess by reason of follows:
traditional ownership or other traditional occupation or use, as well 1. Nothing in this Declaration may be interpreted as implying for
as those which they have otherwise acquired. any State, people, group or person any right to engage in any activity
3. States shall give legal recognition and protection to these lands, or to perform any act contrary to the Charter of the United Nations or
territories and resources. Such recognition shall be conducted with construed as authorizing or encouraging any action which would
due respect to the customs, traditions and land tenure systems of the dismember or impair, totally or in part, the territorial integrity
indigenous peoples concerned. or political unity of sovereign and independent States.
Article 30 Even if the UN DRIP were considered as part of the law of the land
1. Military activities shall not take place in the lands or territories of pursuant to Article II, Section 2 of the Constitution, it would not
indigenous peoples, unless justified by a relevant public interest or suffice to uphold the validity of the MOA-AD so as to render its
otherwise freely agreed with or requested by the indigenous peoples compliance with other laws unnecessary.
concerned.
It is, therefore, clear that the MOA-AD contains numerous The MOA-AD, therefore, may reasonably be perceived as an attempt
provisions that cannot be reconciled with the Constitution and of respondents to address, pursuant to this provision of E.O. No. 3,
the laws as presently worded. Respondents proffer, however, that the root causes of the armed conflict in Mindanao. The E.O.
the signing of the MOA-AD alone would not have entailed any authorized them to "think outside the box," so to speak. Hence, they
violation of law or grave abuse of discretion on their part, precisely negotiated and were set on signing the MOA-AD that included
because it stipulates that the provisions thereof inconsistent with the various social, economic, and political reforms which cannot,
laws shall not take effect until these laws are amended. They cite however, all be accommodated within the present legal framework,
paragraph 7 of the MOA-AD strand on GOVERNANCE quoted and which thus would require new legislation and constitutional
earlier, but which is reproduced below for convenience: amendments.
7. The Parties agree that the mechanisms and modalities for the actual The inquiry on the legality of the "suspensive clause," however,
implementation of this MOA-AD shall be spelt out in the cannot stop here, because it must be asked whether the President
Comprehensive Compact to mutually take such steps to enable it to herself may exercise the power delegated to the GRP Peace Panel
occur effectively. under E.O. No. 3, Sec. 4(a).
Any provisions of the MOA-AD requiring amendments to the The President cannot delegate a power that she herself does not
existing legal framework shall come into force upon signing of a possess. May the President, in the course of peace negotiations, agree
Comprehensive Compact and upon effecting the necessary changes to pursue reforms that would require new legislation and
to the legal framework with due regard to non derogation of prior constitutional amendments, or should the reforms be restricted only
agreements and within the stipulated timeframe to be contained in the to those solutions which the present laws allow? The answer to this
Comprehensive Compact. question requires a discussion of the extent of the President's power
Indeed, the foregoing stipulation keeps many controversial provisions to conduct peace negotiations.
of the MOA-AD from coming into force until the necessary changes That the authority of the President to conduct peace negotiations with
to the legal framework are effected. While the word "Constitution" rebel groups is not explicitly mentioned in the Constitution does not
is not mentioned in the provision now under consideration or mean that she has no such authority. In Sanlakas v. Executive
anywhere else in the MOA-AD, the term "legal framework" is Secretary,168 in issue was the authority of the President to declare a
certainly broad enough to include the Constitution. state of rebellion - an authority which is not expressly provided for in
Notwithstanding the suspensive clause, however, respondents, by the Constitution. The Court held thus:
their mere act of incorporating in the MOA-AD the provisions thereof "In her ponencia in Marcos v. Manglapus, Justice Cortes put her
regarding the associative relationship between the BJE and the thesis into jurisprudence. There, the Court, by a slim 8-7 margin,
Central Government, have already violated the Memorandum of upheld the President's power to forbid the return of her exiled
Instructions From The President dated March 1, 2001, which states predecessor. The rationale for the majority's ruling rested on the
that the "negotiations shall be conducted in accordance with x x x the President's
principles of the sovereignty and territorial integrity of the Republic . . . unstated residual powers which are implied from the grant of
of the Philippines." (Emphasis supplied) Establishing an associative executive power and which are necessary for her to comply with
relationship between the BJE and the Central Government is, for the her duties under the Constitution. The powers of the President
reasons already discussed, a preparation for independence, or worse, are not limited to what are expressly enumerated in the article on
an implicit acknowledgment of an independent status already the Executive Department and in scattered provisions of the
prevailing. Constitution. This is so, notwithstanding the avowed intent of the
Even apart from the above-mentioned Memorandum, however, the members of the Constitutional Commission of 1986 to limit the
MOA-AD is defective because the suspensive clause is invalid, as powers of the President as a reaction to the abuses under the regime
discussed below. of Mr. Marcos, for the result was a limitation of specific powers of
The authority of the GRP Peace Negotiating Panel to negotiate with the President, particularly those relating to the commander-in-chief
the MILF is founded on E.O. No. 3, Section 5(c), which states that clause, but not a diminution of the general grant of executive power.
there shall be established Government Peace Negotiating Panels for Thus, the President's authority to declare a state of rebellion
negotiations with different rebel groups to be "appointed by the springs in the main from her powers as chief executive and, at the
President as her official emissaries to conduct negotiations, dialogues, same time, draws strength from her Commander-in-Chief
and face-to-face discussions with rebel groups." These negotiating powers. x x x (Emphasis and underscoring supplied)
panels are to report to the President, through the PAPP on the conduct Similarly, the President's power to conduct peace negotiations is
and progress of the negotiations. implicitly included in her powers as Chief Executive and
It bears noting that the GRP Peace Panel, in exploring lasting Commander-in-Chief. As Chief Executive, the President has the
solutions to the Moro Problem through its negotiations with the general responsibility to promote public peace, and as Commander-
MILF, was not restricted by E.O. No. 3 only to those options available in-Chief, she has the more specific duty to prevent and suppress
under the laws as they presently stand. One of the components of a rebellion and lawless violence.169
comprehensive peace process, which E.O. No. 3 collectively refers to As the experience of nations which have similarly gone through
as the "Paths to Peace," is the pursuit of social, economic, and internal armed conflict will show, however, peace is rarely attained
political reforms which may require new legislation or even by simply pursuing a military solution. Oftentimes, changes as far-
constitutional amendments. Sec. 4(a) of E.O. No. 3, which reiterates reaching as a fundamental reconfiguration of the nation's
Section 3(a), of E.O. No. 125,167 states: constitutional structure is required. The observations of Dr. Kirsti
SECTION 4. The Six Paths to Peace. - The components of the Samuels are enlightening, to wit:
comprehensive peace process comprise the processes known as the x x x [T]he fact remains that a successful political and governance
"Paths to Peace". These component processes are interrelated and not transition must form the core of any post-conflict peace-building
mutually exclusive, and must therefore be pursued simultaneously in mission. As we have observed in Liberia and Haiti over the last ten
a coordinated and integrated fashion. They shall include, but may not years, conflict cessation without modification of the political
be limited to, the following: environment, even where state-building is undertaken through
a. PURSUIT OF SOCIAL, ECONOMIC AND POLITICAL technical electoral assistance and institution- or capacity-building, is
REFORMS. This component involves the vigorous implementation unlikely to succeed. On average, more than 50 percent of states
of various policies, reforms, programs and projects aimed at emerging from conflict return to conflict. Moreover, a substantial
addressing the root causes of internal armed conflicts and social proportion of transitions have resulted in weak or limited
unrest. This may require administrative action, new legislation or democracies.
even constitutional amendments. The design of a constitution and its constitution-making process can
x x x x (Emphasis supplied) play an important role in the political and governance transition.
Constitution-making after conflict is an opportunity to create a to propose constitutional amendments. Against this ruling, Justices
common vision of the future of a state and a road map on how to get Teehankee and Muñoz Palma vigorously dissented. The Court's
there. The constitution can be partly a peace agreement and partly a concern at present, however, is not with regard to the point on which
framework setting up the rules by which the new democracy will it was then divided in that controversial case, but on that which was
operate.170 not disputed by either side.
In the same vein, Professor Christine Bell, in her article on the nature Justice Teehankee's dissent,175 in particular, bears noting. While he
and legal status of peace agreements, observed that the typical way disagreed that the President may directly submit proposed
that peace agreements establish or confirm mechanisms for constitutional amendments to a referendum, implicit in his opinion is
demilitarization and demobilization is by linking them to new a recognition that he would have upheld the President's action along
constitutional structures addressing governance, elections, and with the majority had the President convened the interim National
legal and human rights institutions.171 Assembly and coursed his proposals through it. Thus Justice
In the Philippine experience, the link between peace agreements and Teehankee opined:
constitution-making has been recognized by no less than the framers "Since the Constitution provides for the organization of the essential
of the Constitution. Behind the provisions of the Constitution on departments of government, defines and delimits the powers of each
autonomous regions172 is the framers' intention to implement a and prescribes the manner of the exercise of such powers, and the
particular peace agreement, namely, the Tripoli Agreement of 1976 constituent power has not been granted to but has been withheld from
between the GRP and the MNLF, signed by then Undersecretary of the President or Prime Minister, it follows that the President's
National Defense Carmelo Z. Barbero and then MNLF Chairman Nur questioned decrees proposing and submitting constitutional
Misuari. amendments directly to the people (without the intervention of the
MR. ROMULO. There are other speakers; so, although I have some interim National Assembly in whom the power is expressly
more questions, I will reserve my right to ask them if they are not vested) are devoid of constitutional and legal basis."176 (Emphasis
covered by the other speakers. I have only two questions. supplied)
I heard one of the Commissioners say that local autonomy From the foregoing discussion, the principle may be inferred that the
already exists in the Muslim region; it is working very well; it has, President - in the course of conducting peace negotiations - may
in fact, diminished a great deal of the problems. So, my question is: validly consider implementing even those policies that require
since that already exists, why do we have to go into something changes to the Constitution, but she may not unilaterally implement
new? them without the intervention of Congress, or act in any way as if
MR. OPLE. May I answer that on behalf of Chairman Nolledo. the assent of that body were assumed as a certainty.
Commissioner Yusup Abubakar is right that certain definite steps Since, under the present Constitution, the people also have the power
have been taken to implement the provisions of the Tripoli to directly propose amendments through initiative and referendum,
Agreement with respect to an autonomous region in Mindanao. the President may also submit her recommendations to the people, not
This is a good first step, but there is no question that this is merely as a formal proposal to be voted on in a plebiscite similar to what
a partial response to the Tripoli Agreement itself and to the fuller President Marcos did in Sanidad, but for their independent
standard of regional autonomy contemplated in that agreement, consideration of whether these recommendations merit being
and now by state policy.173(Emphasis supplied) formally proposed through initiative.
The constitutional provisions on autonomy and the statutes enacted These recommendations, however, may amount to nothing more than
pursuant to them have, to the credit of their drafters, been partly the President's suggestions to the people, for any further involvement
successful. Nonetheless, the Filipino people are still faced with the in the process of initiative by the Chief Executive may vitiate its
reality of an on-going conflict between the Government and the character as a genuine "people's initiative." The only initiative
MILF. If the President is to be expected to find means for bringing recognized by the Constitution is that which truly proceeds from the
this conflict to an end and to achieve lasting peace in Mindanao, then people. As the Court stated in Lambino v. COMELEC:177
she must be given the leeway to explore, in the course of peace "The Lambino Group claims that their initiative is the ‘people's
negotiations, solutions that may require changes to the Constitution voice.' However, the Lambino Group unabashedly states in ULAP
for their implementation. Being uniquely vested with the power to Resolution No. 2006-02, in the verification of their petition with the
conduct peace negotiations with rebel groups, the President is in a COMELEC, that ‘ULAP maintains its unqualified support to the
singular position to know the precise nature of their grievances which, agenda of Her Excellency President Gloria Macapagal-Arroyo for
if resolved, may bring an end to hostilities. constitutional reforms.' The Lambino Group thus admits that their
The President may not, of course, unilaterally implement the ‘people's' initiative is an ‘unqualified support to the agenda' of the
solutions that she considers viable, but she may not be prevented from incumbent President to change the Constitution. This forewarns the
submitting them as recommendations to Congress, which could then, Court to be wary of incantations of ‘people's voice' or ‘sovereign will'
if it is minded, act upon them pursuant to the legal procedures for in the present initiative."
constitutional amendment and revision. In particular, Congress would It will be observed that the President has authority, as stated in her
have the option, pursuant to Article XVII, Sections 1 and 3 of the oath of office,178 only to preserve and defend the Constitution. Such
Constitution, to propose the recommended amendments or revision to presidential power does not, however, extend to allowing her to
the people, call a constitutional convention, or submit to the electorate change the Constitution, but simply to recommend proposed
the question of calling such a convention. amendments or revision. As long as she limits herself to
While the President does not possess constituent powers - as those recommending these changes and submits to the proper procedure for
powers may be exercised only by Congress, a Constitutional constitutional amendments and revision, her mere recommendation
Convention, or the people through initiative and referendum - she need not be construed as an unconstitutional act.
may submit proposals for constitutional change to Congress in a The foregoing discussion focused on the President's authority to
manner that does not involve the arrogation of constituent powers. propose constitutional amendments, since her authority to propose
In Sanidad v. COMELEC,174 in issue was the legality of then new legislation is not in controversy. It has been an accepted practice
President Marcos' act of directly submitting proposals for for Presidents in this jurisdiction to propose new legislation. One of
constitutional amendments to a referendum, bypassing the interim the more prominent instances the practice is usually done is in the
National Assembly which was the body vested by the 1973 yearly State of the Nation Address of the President to Congress.
Constitution with the power to propose such amendments. President Moreover, the annual general appropriations bill has always been
Marcos, it will be recalled, never convened the interim National based on the budget prepared by the President, which - for all intents
Assembly. The majority upheld the President's act, holding that "the and purposes - is a proposal for new legislation coming from the
urges of absolute necessity" compelled the President as the agent of President.179
the people to act as he did, there being no interim National Assembly
The "suspensive clause" in the MOA-AD viewed in light of the Kuala Lumpur. These circumstances readily lead one to surmise that
above-discussed standards the MOA-AD would have had the status of a binding international
Given the limited nature of the President's authority to propose agreement had it been signed. An examination of the prevailing
constitutional amendments, she cannot guarantee to any third party principles in international law, however, leads to the contrary
that the required amendments will eventually be put in place, nor even conclusion.
be submitted to a plebiscite. The most she could do is submit these The Decision on Challenge to Jurisdiction: Lomé Accord Amnesty180
proposals as recommendations either to Congress or the people, in (the Lomé Accord case) of the Special Court of Sierra Leone is
whom constituent powers are vested. enlightening. The Lomé Accord was a peace agreement signed on
Paragraph 7 on Governance of the MOA-AD states, however, that all July 7, 1999 between the Government of Sierra Leone and the
provisions thereof which cannot be reconciled with the present Revolutionary United Front (RUF), a rebel group with which the
Constitution and laws "shall come into force upon signing of a Sierra Leone Government had been in armed conflict for around eight
Comprehensive Compact and upon effecting the necessary changes years at the time of signing. There were non-contracting signatories
to the legal framework." This stipulation does not bear the marks of a to the agreement, among which were the Government of the Togolese
suspensive condition - defined in civil law as a future and uncertain Republic, the Economic Community of West African States, and the
event - but of a term. It is not a question of whether the necessary UN.
changes to the legal framework will be effected, but when. That there On January 16, 2002, after a successful negotiation between the UN
is no uncertainty being contemplated is plain from what follows, for Secretary-General and the Sierra Leone Government, another
the paragraph goes on to state that the contemplated changes shall be agreement was entered into by the UN and that Government whereby
"with due regard to non derogation of prior agreements and within the the Special Court of Sierra Leone was established. The sole purpose
stipulated timeframe to be contained in the Comprehensive of the Special Court, an international court, was to try persons who
Compact." bore the greatest responsibility for serious violations of international
Pursuant to this stipulation, therefore, it is mandatory for the GRP to humanitarian law and Sierra Leonean law committed in the territory
effect the changes to the legal framework contemplated in the MOA- of Sierra Leone since November 30, 1996.
AD - which changes would include constitutional amendments, as Among the stipulations of the Lomé Accord was a provision for the
discussed earlier. It bears noting that, full pardon of the members of the RUF with respect to anything done
By the time these changes are put in place, the MOA-AD itself by them in pursuit of their objectives as members of that organization
would be counted among the "prior agreements" from which since the conflict began.
there could be no derogation. In the Lomé Accord case, the Defence argued that the Accord created
What remains for discussion in the Comprehensive Compact would an internationally binding obligation not to prosecute the
merely be the implementing details for these "consensus points" and, beneficiaries of the amnesty provided therein, citing, among other
notably, the deadline for effecting the contemplated changes to the things, the participation of foreign dignitaries and international
legal framework. organizations in the finalization of that agreement. The Special Court,
Plainly, stipulation-paragraph 7 on GOVERNANCE is inconsistent however, rejected this argument, ruling that the Lome Accord is not
with the limits of the President's authority to propose a treaty and that it can only create binding obligations and rights
constitutional amendments, it being a virtual guarantee that the between the parties in municipal law, not in international law. Hence,
Constitution and the laws of the Republic of the Philippines will the Special Court held, it is ineffective in depriving an international
certainly be adjusted to conform to all the "consensus points" found court like it of jurisdiction.
in the MOA-AD. Hence, it must be struck down as unconstitutional. "37. In regard to the nature of a negotiated settlement of an internal
A comparison between the "suspensive clause" of the MOA-AD with armed conflict it is easy to assume and to argue with some degree
a similar provision appearing in the 1996 final peace agreement of plausibility, as Defence counsel for the defendants seem to have
between the MNLF and the GRP is most instructive. done, that the mere fact that in addition to the parties to the
As a backdrop, the parties to the 1996 Agreement stipulated that it conflict, the document formalizing the settlement is signed by
would be implemented in two phases. Phase I covered a three-year foreign heads of state or their representatives and representatives
transitional period involving the putting up of new administrative of international organizations, means the agreement of the
structures through Executive Order, such as the Special Zone of Peace parties is internationalized so as to create obligations in
and Development (SZOPAD) and the Southern Philippines Council international law.
for Peace and Development (SPCPD), while Phase II covered the xxxx
establishment of the new regional autonomous government through 40. Almost every conflict resolution will involve the parties to the
amendment or repeal of R.A. No. 6734, which was then the Organic conflict and the mediator or facilitator of the settlement, or persons or
Act of the ARMM. bodies under whose auspices the settlement took place but who are
The stipulations on Phase II consisted of specific agreements on the not at all parties to the conflict, are not contracting parties and who
structure of the expanded autonomous region envisioned by the do not claim any obligation from the contracting parties or incur any
parties. To that extent, they are similar to the provisions of the MOA- obligation from the settlement.
AD. There is, however, a crucial difference between the two 41. In this case, the parties to the conflict are the lawful authority
agreements. While the MOA-AD virtually guarantees that the of the State and the RUF which has no status of statehood and is
"necessary changes to the legal framework" will be put in place, to all intents and purposes a faction within the state. The non-
the GRP-MNLF final peace agreement states thus: "Accordingly, contracting signatories of the Lomé Agreement were moral
these provisions [on Phase II] shall be recommended by the GRP to guarantors of the principle that, in the terms of Article XXXIV
Congress for incorporation in the amendatory or repealing law." of the Agreement, "this peace agreement is implemented with
Concerns have been raised that the MOA-AD would have given rise integrity and in good faith by both parties". The moral
to a binding international law obligation on the part of the Philippines guarantors assumed no legal obligation. It is recalled that the UN
to change its Constitution in conformity thereto, on the ground that it by its representative appended, presumably for avoidance of doubt,
may be considered either as a binding agreement under international an understanding of the extent of the agreement to be implemented as
law, or a unilateral declaration of the Philippine government to the not including certain international crimes.
international community that it would grant to the Bangsamoro 42. An international agreement in the nature of a treaty must create
people all the concessions therein stated. Neither ground finds rights and obligations regulated by international law so that a breach
sufficient support in international law, however. of its terms will be a breach determined under international law which
The MOA-AD, as earlier mentioned in the overview thereof, would will also provide principle means of enforcement. The Lomé
have included foreign dignitaries as signatories. In addition, Agreement created neither rights nor obligations capable of
representatives of other nations were invited to witness its signing in being regulated by international law. An agreement such as the
Lomé Agreement which brings to an end an internal armed terminate these tests. It was bound to assume that other States
conflict no doubt creates a factual situation of restoration of peace might take note of these statements and rely on their being
that the international community acting through the Security effective. The validity of these statements and their legal
Council may take note of. That, however, will not convert it to an consequences must be considered within the general framework
international agreement which creates an obligation enforceable of the security of international intercourse, and the confidence and
in international, as distinguished from municipal, law. A breach trust which are so essential in the relations among States. It is from
of the terms of such a peace agreement resulting in resumption of the actual substance of these statements, and from the
internal armed conflict or creating a threat to peace in the circumstances attending their making, that the legal implications
determination of the Security Council may indicate a reversal of the of the unilateral act must be deduced. The objects of these
factual situation of peace to be visited with possible legal statements are clear and they were addressed to the international
consequences arising from the new situation of conflict created. Such community as a whole, and the Court holds that they constitute
consequences such as action by the Security Council pursuant to an undertaking possessing legal effect. The Court considers *270
Chapter VII arise from the situation and not from the agreement, nor that the President of the Republic, in deciding upon the effective
from the obligation imposed by it. Such action cannot be regarded as cessation of atmospheric tests, gave an undertaking to the
a remedy for the breach. A peace agreement which settles an international community to which his words were addressed. x x x
internal armed conflict cannot be ascribed the same status as one (Emphasis and underscoring supplied)
which settles an international armed conflict which, essentially, As gathered from the above-quoted ruling of the ICJ, public
must be between two or more warring States. The Lomé statements of a state representative may be construed as a unilateral
Agreement cannot be characterised as an international declaration only when the following conditions are present: the
instrument. x x x" (Emphasis, italics and underscoring supplied) statements were clearly addressed to the international community, the
Similarly, that the MOA-AD would have been signed by state intended to be bound to that community by its statements, and
representatives of States and international organizations not parties to that not to give legal effect to those statements would be detrimental
the Agreement would not have sufficed to vest in it a binding to the security of international intercourse. Plainly, unilateral
character under international law. declarations arise only in peculiar circumstances.
In another vein, concern has been raised that the MOA-AD would The limited applicability of the Nuclear Tests Case ruling was
amount to a unilateral declaration of the Philippine State, binding recognized in a later case decided by the ICJ entitled Burkina Faso v.
under international law, that it would comply with all the stipulations Mali,183 also known as the Case Concerning the Frontier Dispute. The
stated therein, with the result that it would have to amend its public declaration subject of that case was a statement made by the
Constitution accordingly regardless of the true will of the people. President of Mali, in an interview by a foreign press agency, that Mali
Cited as authority for this view is Australia v. France,181 also known would abide by the decision to be issued by a commission of the
as the Nuclear Tests Case, decided by the International Court of Organization of African Unity on a frontier dispute then pending
Justice (ICJ). between Mali and Burkina Faso.
In the Nuclear Tests Case, Australia challenged before the ICJ the Unlike in the Nuclear Tests Case, the ICJ held that the statement of
legality of France's nuclear tests in the South Pacific. France refused Mali's President was not a unilateral act with legal implications. It
to appear in the case, but public statements from its President, and clarified that its ruling in the Nuclear Tests case rested on the peculiar
similar statements from other French officials including its Minister circumstances surrounding the French declaration subject thereof, to
of Defence, that its 1974 series of atmospheric tests would be its last, wit:
persuaded the ICJ to dismiss the case.182 Those statements, the ICJ 40. In order to assess the intentions of the author of a unilateral act,
held, amounted to a legal undertaking addressed to the international account must be taken of all the factual circumstances in which the
community, which required no acceptance from other States for it to act occurred. For example, in the Nuclear Tests cases, the Court
become effective. took the view that since the applicant States were not the only
Essential to the ICJ ruling is its finding that the French government ones concerned at the possible continuance of atmospheric testing
intended to be bound to the international community in issuing its by the French Government, that Government's unilateral
public statements, viz: declarations had ‘conveyed to the world at large, including the
43. It is well recognized that declarations made by way of unilateral Applicant, its intention effectively to terminate these tests‘ (I.C.J.
acts, concerning legal or factual situations, may have the effect of Reports 1974, p. 269, para. 51; p. 474, para. 53). In the particular
creating legal obligations. Declarations of this kind may be, and often circumstances of those cases, the French Government could not
are, very specific. When it is the intention of the State making the express an intention to be bound otherwise than by unilateral
declaration that it should become bound according to its terms, declarations. It is difficult to see how it could have accepted the
that intention confers on the declaration the character of a legal terms of a negotiated solution with each of the applicants without
undertaking, the State being thenceforth legally required to thereby jeopardizing its contention that its conduct was lawful.
follow a course of conduct consistent with the declaration. An The circumstances of the present case are radically different.
undertaking of this kind, if given publicly, and with an intent to be Here, there was nothing to hinder the Parties from manifesting
bound, even though not made within the context of international an intention to accept the binding character of the conclusions of
negotiations, is binding. In these circumstances, nothing in the nature the Organization of African Unity Mediation Commission by the
of a quid pro quo nor any subsequent acceptance of the declaration, normal method: a formal agreement on the basis of reciprocity.
nor even any reply or reaction from other States, is required for the Since no agreement of this kind was concluded between the Parties,
declaration to take effect, since such a requirement would be the Chamber finds that there are no grounds to interpret the
inconsistent with the strictly unilateral nature of the juridical act by declaration made by Mali's head of State on 11 April 1975 as a
which the pronouncement by the State was made. unilateral act with legal implications in regard to the present case.
44. Of course, not all unilateral acts imply obligation; but a State (Emphasis and underscoring supplied)
may choose to take up a certain position in relation to a particular Assessing the MOA-AD in light of the above criteria, it would not
matter with the intention of being bound-the intention is to be have amounted to a unilateral declaration on the part of the Philippine
ascertained by interpretation of the act. When States make State to the international community. The Philippine panel did not
statements by which their freedom of action is to be limited, a draft the same with the clear intention of being bound thereby to the
restrictive interpretation is called for. international community as a whole or to any State, but only to the
xxxx MILF. While there were States and international organizations
51. In announcing that the 1974 series of atmospheric tests would involved, one way or another, in the negotiation and projected signing
be the last, the French Government conveyed to the world at of the MOA-AD, they participated merely as witnesses or, in the case
large, including the Applicant, its intention effectively to of Malaysia, as facilitator. As held in the Lomé Accord case, the mere
fact that in addition to the parties to the conflict, the peace settlement The MOA-AD is a significant part of a series of agreements necessary
is signed by representatives of states and international organizations to carry out the GRP-MILF Tripoli Agreement on Peace signed by
does not mean that the agreement is internationalized so as to create the government and the MILF back in June 2001. Hence, the present
obligations in international law. MOA-AD can be renegotiated or another one drawn up that could
Since the commitments in the MOA-AD were not addressed to States, contain similar or significantly dissimilar provisions compared to the
not to give legal effect to such commitments would not be detrimental original.
to the security of international intercourse - to the trust and confidence The Court, however, finds that the prayers for mandamus have been
essential in the relations among States. rendered moot in view of the respondents' action in providing the
In one important respect, the circumstances surrounding the MOA- Court and the petitioners with the official copy of the final draft of
AD are closer to that of Burkina Faso wherein, as already discussed, the MOA-AD and its annexes.
the Mali President's statement was not held to be a binding unilateral The people's right to information on matters of public concern under
declaration by the ICJ. As in that case, there was also nothing to Sec. 7, Article III of the Constitution is in splendid symmetry with the
hinder the Philippine panel, had it really been its intention to be bound state policy of full public disclosure of all its transactions involving
to other States, to manifest that intention by formal agreement. Here, public interest under Sec. 28, Article II of the Constitution. The right
that formal agreement would have come about by the inclusion in the to information guarantees the right of the people to demand
MOA-AD of a clear commitment to be legally bound to the information, while Section 28 recognizes the duty of officialdom to
international community, not just the MILF, and by an equally clear give information even if nobody demands. The complete and
indication that the signatures of the participating states- effective exercise of the right to information necessitates that its
representatives would constitute an acceptance of that commitment. complementary provision on public disclosure derive the same self-
Entering into such a formal agreement would not have resulted in a executory nature, subject only to reasonable safeguards or limitations
loss of face for the Philippine government before the international as may be provided by law.
community, which was one of the difficulties that prevented the The contents of the MOA-AD is a matter of paramount public
French Government from entering into a formal agreement with other concern involving public interest in the highest order. In declaring
countries. That the Philippine panel did not enter into such a formal that the right to information contemplates steps and negotiations
agreement suggests that it had no intention to be bound to the leading to the consummation of the contract, jurisprudence finds no
international community. On that ground, the MOA-AD may not be distinction as to the executory nature or commercial character of the
considered a unilateral declaration under international law. agreement.
The MOA-AD not being a document that can bind the Philippines An essential element of these twin freedoms is to keep a continuing
under international law notwithstanding, respondents' almost dialogue or process of communication between the government and
consummated act of guaranteeing amendments to the legal the people. Corollary to these twin rights is the design for feedback
framework is, by itself, sufficient to constitute grave abuse of mechanisms. The right to public consultation was envisioned to be a
discretion. The grave abuse lies not in the fact that they considered, species of these public rights.
as a solution to the Moro Problem, the creation of a state within a At least three pertinent laws animate these constitutional imperatives
state, but in their brazen willingness to guarantee that Congress and justify the exercise of the people's right to be consulted on
and the sovereign Filipino people would give their imprimatur to relevant matters relating to the peace agenda.
their solution. Upholding such an act would amount to authorizing a One, E.O. No. 3 itself is replete with mechanics for continuing
usurpation of the constituent powers vested only in Congress, a consultations on both national and local levels and for a principal
Constitutional Convention, or the people themselves through the forum for consensus-building. In fact, it is the duty of the Presidential
process of initiative, for the only way that the Executive can ensure Adviser on the Peace Process to conduct regular dialogues to seek
the outcome of the amendment process is through an undue influence relevant information, comments, advice, and recommendations from
or interference with that process. peace partners and concerned sectors of society.
The sovereign people may, if it so desired, go to the extent of giving Two, Republic Act No. 7160 or the Local Government Code of 1991
up a portion of its own territory to the Moros for the sake of peace, requires all national offices to conduct consultations before any
for it can change the Constitution in any it wants, so long as the project or program critical to the environment and human ecology
change is not inconsistent with what, in international law, is known including those that may call for the eviction of a particular group of
as Jus Cogens.184 Respondents, however, may not preempt it in that people residing in such locality, is implemented therein. The MOA-
decision. AD is one peculiar program that unequivocally and unilaterally vests
SUMMARY ownership of a vast territory to the Bangsamoro people, which could
The petitions are ripe for adjudication. The failure of respondents to pervasively and drastically result to the diaspora or displacement of a
consult the local government units or communities affected great number of inhabitants from their total environment.
constitutes a departure by respondents from their mandate under E.O. Three, Republic Act No. 8371 or the Indigenous Peoples Rights Act
No. 3. Moreover, respondents exceeded their authority by the mere of 1997 provides for clear-cut procedure for the recognition and
act of guaranteeing amendments to the Constitution. Any alleged delineation of ancestral domain, which entails, among other things,
violation of the Constitution by any branch of government is a proper the observance of the free and prior informed consent of the
matter for judicial review. Indigenous Cultural Communities/Indigenous Peoples. Notably, the
As the petitions involve constitutional issues which are of paramount statute does not grant the Executive Department or any government
public interest or of transcendental importance, the Court grants the agency the power to delineate and recognize an ancestral domain
petitioners, petitioners-in-intervention and intervening respondents claim by mere agreement or compromise.
the requisite locus standi in keeping with the liberal stance adopted in The invocation of the doctrine of executive privilege as a defense to
David v. Macapagal-Arroyo. the general right to information or the specific right to consultation is
Contrary to the assertion of respondents that the non-signing of the untenable. The various explicit legal provisions fly in the face of
MOA-AD and the eventual dissolution of the GRP Peace Panel executive secrecy. In any event, respondents effectively waived such
mooted the present petitions, the Court finds that the present petitions defense after it unconditionally disclosed the official copies of the
provide an exception to the "moot and academic" principle in view of final draft of the MOA-AD, for judicial compliance and public
(a) the grave violation of the Constitution involved; (b) the scrutiny.
exceptional character of the situation and paramount public interest; In sum, the Presidential Adviser on the Peace Process committed
(c) the need to formulate controlling principles to guide the bench, the grave abuse of discretion when he failed to carry out the pertinent
bar, and the public; and (d) the fact that the case is capable of consultation process, as mandated by E.O. No. 3, Republic Act No.
repetition yet evading review. 7160, and Republic Act No. 8371. The furtive process by which the
MOA-AD was designed and crafted runs contrary to and in excess of
the legal authority, and amounts to a whimsical, capricious,
oppressive, arbitrary and despotic exercise thereof. It illustrates a
gross evasion of positive duty and a virtual refusal to perform the duty
enjoined.
The MOA-AD cannot be reconciled with the present Constitution and
laws. Not only its specific provisions but the very concept underlying
them, namely, the associative relationship envisioned between the
GRP and the BJE, are unconstitutional, for the concept presupposes
that the associated entity is a state and implies that the same is on its
way to independence.
While there is a clause in the MOA-AD stating that the provisions
thereof inconsistent with the present legal framework will not be
effective until that framework is amended, the same does not cure its
defect. The inclusion of provisions in the MOA-AD establishing an
associative relationship between the BJE and the Central Government
is, itself, a violation of the Memorandum of Instructions From The
President dated March 1, 2001, addressed to the government peace
panel. Moreover, as the clause is worded, it virtually guarantees that
the necessary amendments to the Constitution and the laws will
eventually be put in place. Neither the GRP Peace Panel nor the
President herself is authorized to make such a guarantee. Upholding
such an act would amount to authorizing a usurpation of the
constituent powers vested only in Congress, a Constitutional
Convention, or the people themselves through the process of
initiative, for the only way that the Executive can ensure the outcome
of the amendment process is through an undue influence or
interference with that process.
While the MOA-AD would not amount to an international agreement
or unilateral declaration binding on the Philippines under
international law, respondents' act of guaranteeing amendments is, by
itself, already a constitutional violation that renders the MOA-AD
fatally defective.
WHEREFORE, respondents' motion to dismiss is DENIED. The
main and intervening petitions are GIVEN DUE COURSE and
hereby GRANTED.
The Memorandum of Agreement on the Ancestral Domain Aspect of
the GRP-MILF Tripoli Agreement on Peace of 2001 is declared
contrary to law and the Constitution.
SO ORDERED.