G.R. No.

118295 May 2, 1997

WIGBERTO E. TAÑADA and ANNA DOMINIQUE COSETENG, as members of the
Philippine Senate and as taxpayers; GREGORIO ANDOLANA and JOKER ARROYO
as members of the House of Representatives and as taxpayers; NICANOR P.
PERLAS and HORACIO R. MORALES, both as taxpayers; CIVIL LIBERTIES
UNION, NATIONAL ECONOMIC PROTECTIONISM ASSOCIATION, CENTER FOR
ALTERNATIVE DEVELOPMENT INITIATIVES, LIKAS-KAYANG KAUNLARAN
FOUNDATION, INC., PHILIPPINE RURAL RECONSTRUCTION MOVEMENT,
DEMOKRATIKONG KILUSAN NG MAGBUBUKID NG PILIPINAS, INC., and
PHILIPPINE PEASANT INSTITUTE, in representation of various taxpayers and
as non-governmental organizations, petitioners,
vs.
EDGARDO ANGARA, ALBERTO ROMULO, LETICIA RAMOS-SHAHANI, HEHERSON
ALVAREZ, AGAPITO AQUINO, RODOLFO BIAZON, NEPTALI GONZALES, ERNESTO
HERRERA, JOSE LINA, GLORIA. MACAPAGAL-ARROYO, ORLANDO MERCADO,
BLAS OPLE, JOHN OSMEÑA, SANTANINA RASUL, RAMON REVILLA, RAUL ROCO,
FRANCISCO TATAD and FREDDIE WEBB, in their respective capacities as
members of the Philippine Senate who concurred in the ratification by the
President of the Philippines of the Agreement Establishing the World Trade
Organization; SALVADOR ENRIQUEZ, in his capacity as Secretary of Budget and
Management; CARIDAD VALDEHUESA, in her capacity as National Treasurer;
RIZALINO NAVARRO, in his capacity as Secretary of Trade and Industry;
ROBERTO SEBASTIAN, in his capacity as Secretary of Agriculture; ROBERTO DE
OCAMPO, in his capacity as Secretary of Finance; ROBERTO ROMULO, in his
capacity as Secretary of Foreign Affairs; and TEOFISTO T. GUINGONA, in his
capacity as Executive Secretary, respondents.
PANGANIBAN, J.:
The emergence on January 1, 1995 of the World Trade Organization, abetted by the
membership thereto of the vast majority of countries has revolutionized international
business and economic relations amongst states. It has irreversibly propelled the world
towards trade liberalization and economic globalization. Liberalization, globalization,
deregulation and privatization, the third-millennium buzz words, are ushering in a new
borderless world of business by sweeping away as mere historical relics the heretofore
traditional modes of promoting and protecting national economies like tariffs, export
subsidies, import quotas, quantitative restrictions, tax exemptions and currency
controls. Finding market niches and becoming the best in specific industries in a market-
driven and export-oriented global scenario are replacing age-old "beggar-thy-neighbor"
policies that unilaterally protect weak and inefficient domestic producers of goods and
services. In the words of Peter Drucker, the well-known management guru, "Increased
participation in the world economy has become the key to domestic economic growth
and prosperity."
Brief Historical Background
To hasten worldwide recovery from the devastation wrought by the Second World War,
plans for the establishment of three multilateral institutions — inspired by that grand
political body, the United Nations — were discussed at Dumbarton Oaks and Bretton
Woods. The first was the World Bank (WB) which was to address the rehabilitation and
reconstruction of war-ravaged and later developing countries; the second, the
International Monetary Fund (IMF) which was to deal with currency problems; and
the third, the International Trade Organization (ITO), which was to foster order and
predictability in world trade and to minimize unilateral protectionist policies that invite
challenge, even retaliation, from other states. However, for a variety of reasons,
including its non-ratification by the United States, the ITO, unlike the IMF and WB, never
took off. What remained was only GATT — the General Agreement on Tariffs and Trade.
GATT was a collection of treaties governing access to the economies of treaty adherents
with no institutionalized body administering the agreements or dependable system of
dispute settlement.
After half a century and several dizzying rounds of negotiations, principally the Kennedy
Round, the Tokyo Round and the Uruguay Round, the world finally gave birth to that
administering body — the World Trade Organization — with the signing of the "Final Act"
in Marrakesh, Morocco and the ratification of the WTO Agreement by its members.1
Like many other developing countries, the Philippines joined WTO as a founding member
with the goal, as articulated by President Fidel V. Ramos in two letters to the Senate
(infra), of improving "Philippine access to foreign markets, especially its major trading
partners, through the reduction of tariffs on its exports, particularly agricultural and
industrial products." The President also saw in the WTO the opening of "new
opportunities for the services sector . . . , (the reduction of) costs and uncertainty
associated with exporting . . . , and (the attraction of) more investments into the
country." Although the Chief Executive did not expressly mention it in his letter, the
Philippines — and this is of special interest to the legal profession — will benefit from the
WTO system of dispute settlement by judicial adjudication through the independent WTO
settlement bodies called (1) Dispute Settlement Panels and (2) Appellate Tribunal.
Heretofore, trade disputes were settled mainly through negotiations where solutions
were arrived at frequently on the basis of relative bargaining strengths, and where
naturally, weak and underdeveloped countries were at a disadvantage.
The Petition in Brief
Arguing mainly (1) that the WTO requires the Philippines "to place nationals and
products of member-countries on the same footing as Filipinos and local products" and
(2) that the WTO "intrudes, limits and/or impairs" the constitutional powers of both
Congress and the Supreme Court, the instant petition before this Court assails the WTO
Agreement for violating the mandate of the 1987 Constitution to "develop a self-reliant
and independent national economy effectively controlled by Filipinos . . . (to) give
preference to qualified Filipinos (and to) promote the preferential use of Filipino labor,
domestic materials and locally produced goods."
Simply stated, does the Philippine Constitution prohibit Philippine participation in
worldwide trade liberalization and economic globalization? Does it proscribe Philippine
integration into a global economy that is liberalized, deregulated and privatized? These
are the main questions raised in this petition for certiorari, prohibition
and mandamus under Rule 65 of the Rules of Court praying (1) for the nullification, on
constitutional grounds, of the concurrence of the Philippine Senate in the ratification by
the President of the Philippines of the Agreement Establishing the World Trade
Organization (WTO Agreement, for brevity) and (2) for the prohibition of its
implementation and enforcement through the release and utilization of public funds, the
assignment of public officials and employees, as well as the use of government
properties and resources by respondent-heads of various executive offices concerned
therewith. This concurrence is embodied in Senate Resolution No. 97, dated December
14, 1994.
The Facts
On April 15, 1994, Respondent Rizalino Navarro, then Secretary of The Department of
Trade and Industry (Secretary Navarro, for brevity), representing the Government of the
Republic of the Philippines, signed in Marrakesh, Morocco, the Final Act Embodying the
Results of the Uruguay Round of Multilateral Negotiations (Final Act, for brevity).
By signing the Final Act,2 Secretary Navarro on behalf of the Republic of the Philippines,
agreed:
(a) to submit, as appropriate, the WTO Agreement for the consideration of
their respective competent authorities, with a view to seeking approval of
the Agreement in accordance with their procedures; and
(b) to adopt the Ministerial Declarations and Decisions.
On August 12, 1994, the members of the Philippine Senate received a letter dated
August 11, 1994 from the President of the Philippines,3 stating among others that "the
Uruguay Round Final Act is hereby submitted to the Senate for its concurrence pursuant
to Section 21, Article VII of the Constitution."
On August 13, 1994, the members of the Philippine Senate received another letter from
the President of the Philippines4 likewise dated August 11, 1994, which stated among
others that "the Uruguay Round Final Act, the Agreement Establishing the World Trade
Organization, the Ministerial Declarations and Decisions, and the Understanding on
Commitments in Financial Services are hereby submitted to the Senate for its
concurrence pursuant to Section 21, Article VII of the Constitution."
On December 9, 1994, the President of the Philippines certified the necessity of the
immediate adoption of P.S. 1083, a resolution entitled "Concurring in the Ratification of
the Agreement Establishing the World Trade Organization."5
On December 14, 1994, the Philippine Senate adopted Resolution No. 97 which
"Resolved, as it is hereby resolved, that the Senate concur, as it hereby concurs, in the
ratification by the President of the Philippines of the Agreement Establishing the World
Trade Organization."6 The text of the WTO Agreement is written on pages 137 et seq. of
Volume I of the 36-volume Uruguay Round of Multilateral Trade Negotiations and
includes various agreements and associated legal instruments (identified in the said
Agreement as Annexes 1, 2 and 3 thereto and collectively referred to as Multilateral
Trade Agreements, for brevity) as follows:
 ANNEX 1
Annex 1A: Multilateral Agreement on Trade in Goods
General Agreement on Tariffs and Trade 1994
Agreement on Agriculture
Agreement on the Application of Sanitary and
Phytosanitary Measures
Agreement on Textiles and Clothing
Agreement on Technical Barriers to Trade
Agreement on Trade-Related Investment Measures
Agreement on Implementation of Article VI of he
General Agreement on Tariffs and Trade
1994
Agreement on Implementation of Article VII of the
General on Tariffs and Trade 1994
Agreement on Pre-Shipment Inspection
Agreement on Rules of Origin
Agreement on Imports Licensing Procedures
Agreement on Subsidies and Coordinating
Measures
Agreement on Safeguards
Annex 1B: General Agreement on Trade in Services and Annexes
Annex 1C: Agreement on Trade-Related Aspects of Intellectual
Property Rights
ANNEX 2
Understanding on Rules and Procedures Governing
the Settlement of Disputes
ANNEX 3
Trade Policy Review Mechanism
On December 16, 1994, the President of the Philippines signed 7 the Instrument of
Ratification, declaring:
NOW THEREFORE, be it known that I, FIDEL V. RAMOS, President of the Republic
of the Philippines, after having seen and considered the aforementioned
Agreement Establishing the World Trade Organization and the agreements and
associated legal instruments included in Annexes one (1), two (2) and three (3) of
that Agreement which are integral parts thereof, signed at Marrakesh, Morocco on
15 April 1994, do hereby ratify and confirm the same and every Article and Clause
thereof.
To emphasize, the WTO Agreement ratified by the President of the Philippines is
composed of the Agreement Proper and "the associated legal instruments included in
Annexes one (1), two (2) and three (3) of that Agreement which are integral parts
thereof."
On the other hand, the Final Act signed by Secretary Navarro embodies not only the
WTO Agreement (and its integral annexes aforementioned) but also (1) the Ministerial
Declarations and Decisions and (2) the Understanding on Commitments in Financial
Services. In his Memorandum dated May 13, 1996,8 the Solicitor General describes
these two latter documents as follows:
The Ministerial Decisions and Declarations are twenty-five declarations and
decisions on a wide range of matters, such as measures in favor of least developed
countries, notification procedures, relationship of WTO with the International
Monetary Fund (IMF), and agreements on technical barriers to trade and on
dispute settlement.
The Understanding on Commitments in Financial Services dwell on, among other
things, standstill or limitations and qualifications of commitments to existing non-
conforming measures, market access, national treatment, and definitions of non-
resident supplier of financial services, commercial presence and new financial
service.
On December 29, 1994, the present petition was filed. After careful deliberation on
respondents' comment and petitioners' reply thereto, the Court resolved on December
12, 1995, to give due course to the petition, and the parties thereafter filed their
respective memoranda. The court also requested the Honorable Lilia R. Bautista, the
Philippine Ambassador to the United Nations stationed in Geneva, Switzerland, to submit
a paper, hereafter referred to as "Bautista Paper,"9 for brevity, (1) providing a historical
background of and (2) summarizing the said agreements.
During the Oral Argument held on August 27, 1996, the Court directed:
 (a) the petitioners to submit the (1) Senate Committee Report on the matter in
controversy and (2) the transcript of proceedings/hearings in the Senate; and
(b) the Solicitor General, as counsel for respondents, to file (1) a list of Philippine
treaties signed prior to the Philippine adherence to the WTO Agreement, which
derogate from Philippine sovereignty and (2) copies of the multi-volume WTO
Agreement and other documents mentioned in the Final Act, as soon as possible.
After receipt of the foregoing documents, the Court said it would consider the case
submitted for resolution. In a Compliance dated September 16, 1996, the Solicitor
General submitted a printed copy of the 36-volume Uruguay Round of Multilateral Trade
Negotiations, and in another Compliance dated October 24, 1996, he listed the various
"bilateral or multilateral treaties or international instruments involving derogation of
Philippine sovereignty." Petitioners, on the other hand, submitted their Compliance
dated January 28, 1997, on January 30, 1997.
The Issues
In their Memorandum dated March 11, 1996, petitioners summarized the issues as
follows:
A. Whether the petition presents a political question or is otherwise not justiciable.
B. Whether the petitioner members of the Senate who participated in the
deliberations and voting leading to the concurrence are estopped from impugning
the validity of the Agreement Establishing the World Trade Organization or of the
validity of the concurrence.
C. Whether the provisions of the Agreement Establishing the World Trade
Organization contravene the provisions of Sec. 19, Article II, and Secs. 10 and 12,
Article XII, all of the 1987 Philippine Constitution.
D. Whether provisions of the Agreement Establishing the World Trade Organization
unduly limit, restrict and impair Philippine sovereignty specifically the legislative
power which, under Sec. 2, Article VI, 1987 Philippine Constitution is "vested in
the Congress of the Philippines";
E. Whether provisions of the Agreement Establishing the World Trade Organization
interfere with the exercise of judicial power.
F. Whether the respondent members of the Senate acted in grave abuse of
discretion amounting to lack or excess of jurisdiction when they voted for
concurrence in the ratification of the constitutionally-infirm Agreement Establishing
the World Trade Organization.
G. Whether the respondent members of the Senate acted in grave abuse of
discretion amounting to lack or excess of jurisdiction when they concurred only in
the ratification of the Agreement Establishing the World Trade Organization, and
not with the Presidential submission which included the Final Act, Ministerial
Declaration and Decisions, and the Understanding on Commitments in Financial
Services.
On the other hand, the Solicitor General as counsel for respondents "synthesized the
several issues raised by petitioners into the following":
1. Whether or not the provisions of the "Agreement Establishing the World Trade
Organization and the Agreements and Associated Legal Instruments included in
Annexes one (1), two (2) and three (3) of that agreement" cited by petitioners
directly contravene or undermine the letter, spirit and intent of Section 19, Article
II and Sections 10 and 12, Article XII of the 1987 Constitution.
2. Whether or not certain provisions of the Agreement unduly limit, restrict or
impair the exercise of legislative power by Congress.
3. Whether or not certain provisions of the Agreement impair the exercise of
judicial power by this Honorable Court in promulgating the rules of evidence.
4. Whether or not the concurrence of the Senate "in the ratification by the
President of the Philippines of the Agreement establishing the World Trade
Organization" implied rejection of the treaty embodied in the Final Act.
By raising and arguing only four issues against the seven presented by petitioners, the
Solicitor General has effectively ignored three, namely: (1) whether the petition
presents a political question or is otherwise not justiciable; (2) whether petitioner-
members of the Senate (Wigberto E. Tañada and Anna Dominique Coseteng) are
estopped from joining this suit; and (3) whether the respondent-members of the Senate
acted in grave abuse of discretion when they voted for concurrence in the ratification of
the WTO Agreement. The foregoing notwithstanding, this Court resolved to deal with
these three issues thus:
(1) The "political question" issue — being very fundamental and vital, and being a
matter that probes into the very jurisdiction of this Court to hear and decide this case —
was deliberated upon by the Court and will thus be ruled upon as the first issue;
(2) The matter of estoppel will not be taken up because this defense is waivable and the
respondents have effectively waived it by not pursuing it in any of their pleadings; in
any event, this issue, even if ruled in respondents' favor, will not cause the petition's
dismissal as there are petitioners other than the two senators, who are not vulnerable to
the defense of estoppel; and
(3) The issue of alleged grave abuse of discretion on the part of the respondent senators
will be taken up as an integral part of the disposition of the four issues raised by the
Solicitor General.
During its deliberations on the case, the Court noted that the respondents did not
question the locus standi of petitioners. Hence, they are also deemed to have waived the
benefit of such issue. They probably realized that grave constitutional issues,
expenditures of public funds and serious international commitments of the nation are
involved here, and that transcendental public interest requires that the substantive
issues be met head on and decided on the merits, rather than skirted or deflected by
procedural matters.
To recapitulate, the issues that will be ruled upon shortly are:
(1) DOES THE PETITION PRESENT A JUSTICIABLE CONTROVERSY? OTHERWISE
STATED, DOES THE PETITION INVOLVE A POLITICAL QUESTION OVER WHICH
THIS COURT HAS NO JURISDICTION?
(2) DO THE PROVISIONS OF THE WTO AGREEMENT AND ITS THREE ANNEXES
CONTRAVENE SEC. 19, ARTICLE II, AND SECS. 10 AND 12, ARTICLE XII, OF THE
PHILIPPINE CONSTITUTION?
(3) DO THE PROVISIONS OF SAID AGREEMENT AND ITS ANNEXES LIMIT,
RESTRICT, OR IMPAIR THE EXERCISE OF LEGISLATIVE POWER BY CONGRESS?
(4) DO SAID PROVISIONS UNDULY IMPAIR OR INTERFERE WITH THE EXERCISE
OF JUDICIAL POWER BY THIS COURT IN PROMULGATING RULES ON EVIDENCE?
(5) WAS THE CONCURRENCE OF THE SENATE IN THE WTO AGREEMENT AND ITS
ANNEXES SUFFICIENT AND/OR VALID, CONSIDERING THAT IT DID NOT INCLUDE
THE FINAL ACT, MINISTERIAL DECLARATIONS AND DECISIONS, AND THE
UNDERSTANDING ON COMMITMENTS IN FINANCIAL SERVICES?
The First Issue: Does the Court Have Jurisdiction Over the Controversy?
In seeking to nullify an act of the Philippine Senate on the ground that it contravenes
the Constitution, the petition no doubt raises a justiciable controversy. Where an action
of the legislative branch is seriously alleged to have infringed the Constitution, it
becomes not only the right but in fact the duty of the judiciary to settle the dispute.
"The question thus posed is judicial rather than political. The duty (to adjudicate)
remains to assure that the supremacy of the Constitution is upheld." 12 Once a
"controversy as to the application or interpretation of a constitutional provision is raised
before this Court (as in the instant case), it becomes a legal issue which the Court is
bound by constitutional mandate to decide." 13
The jurisdiction of this Court to adjudicate the matters 14 raised in the petition is clearly
set out in the 1987 Constitution, 15 as follows:
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable, and
to determine whether or not there has been a grave abuse of discretion amounting
to lack or excess of jurisdiction on the part of any branch or instrumentality of the
government.
The foregoing text emphasizes the judicial department's duty and power to strike down
grave abuse of discretion on the part of any branch or instrumentality of government
including Congress. It is an innovation in our political law. 16As explained by former Chief
Justice Roberto Concepcion, 17 "the judiciary is the final arbiter on the question of
whether or not a branch of government or any of its officials has acted without
jurisdiction or in excess of jurisdiction or so capriciously as to constitute an abuse of
discretion amounting to excess of jurisdiction. This is not only a judicial power but a duty
to pass judgment on matters of this nature."
As this Court has repeatedly and firmly emphasized in many cases, 18 it will not shirk,
digress from or abandon its sacred duty and authority to uphold the Constitution in
matters that involve grave abuse of discretion brought before it in appropriate cases,
committed by any officer, agency, instrumentality or department of the government.
As the petition alleges grave abuse of discretion and as there is no other plain, speedy
or adequate remedy in the ordinary course of law, we have no hesitation at all in holding
that this petition should be given due course and the vital questions raised therein ruled
upon under Rule 65 of the Rules of Court. Indeed, certiorari, prohibition
and mandamus are appropriate remedies to raise constitutional issues and to review
and/or prohibit/nullify, when proper, acts of legislative and executive officials. On this,
we have no equivocation.
We should stress that, in deciding to take jurisdiction over this petition, this Court will
not review the wisdom of the decision of the President and the Senate in enlisting the
country into the WTO, or pass upon the merits of trade liberalization as a policy
espoused by said international body. Neither will it rule on the propriety of the
government's economic policy of reducing/removing tariffs, taxes, subsidies,
quantitative restrictions, and other import/trade barriers. Rather, it will only exercise its
constitutional duty "to determine whether or not there had been a grave abuse of
discretion amounting to lack or excess of jurisdiction" on the part of the Senate in
ratifying the WTO Agreement and its three annexes.
Second Issue: The WTO Agreement and Economic Nationalism
This is the lis mota, the main issue, raised by the petition.
Petitioners vigorously argue that the "letter, spirit and intent" of the Constitution
mandating "economic nationalism" are violated by the so-called "parity provisions" and
"national treatment" clauses scattered in various parts not only of the WTO Agreement
and its annexes but also in the Ministerial Decisions and Declarations and in the
Understanding on Commitments in Financial Services.
Specifically, the "flagship" constitutional provisions referred to are Sec 19, Article II, and
Secs. 10 and 12, Article XII, of the Constitution, which are worded as follows:
Article II
DECLARATION OF PRINCIPLES AND STATE POLICIES
Sec. 19. The State shall develop a self-reliant and independent national economy
effectively controlled by Filipinos.
Article XII
NATIONAL ECONOMY AND PATRIMONY
Sec. 10. . . . The Congress shall enact measures that will encourage the formation and
operation of enterprises whose capital is wholly owned by Filipinos.
In the grant of rights, privileges, and concessions covering the national economy and
patrimony, the State shall give preference to qualified Filipinos.
Sec. 12. The State shall promote the preferential use of Filipino labor, domestic
materials and locally produced goods, and adopt measures that help make them
competitive.
Petitioners aver that these sacred constitutional principles are desecrated by the
following WTO provisions quoted in their memorandum:
a) In the area of investment measures related to trade in goods (TRIMS, for brevity):
Article 2
National Treatment and Quantitative Restrictions.
1. Without prejudice to other rights and obligations under GATT 1994, no Member shall
apply any TRIM that is inconsistent with the provisions of Article II or Article XI of GATT
1994.
2. An illustrative list of TRIMS that are inconsistent with the obligations of general
elimination of quantitative restrictions provided for in paragraph I of Article XI of GATT
1994 is contained in the Annex to this Agreement." (Agreement on Trade-Related
Investment Measures, Vol. 27, Uruguay Round, Legal Instruments, p. 22121, emphasis
supplied).
The Annex referred to reads as follows:
ANNEX
Illustrative List
1. TRIMS that are inconsistent with the obligation of national treatment provided for in
paragraph 4 of Article III of GATT 1994 include those which are mandatory or
enforceable under domestic law or under administrative rulings, or compliance with
which is necessary to obtain an advantage, and which require:
(a) the purchase or use by an enterprise of products of domestic origin or from any
domestic source, whether specified in terms of particular products, in terms of volume or
value of products, or in terms of proportion of volume or value of its local production; or
(b) that an enterprise's purchases or use of imported products be limited to an amount
related to the volume or value of local products that it exports.
2. TRIMS that are inconsistent with the obligations of general elimination of quantitative
restrictions provided for in paragraph 1 of Article XI of GATT 1994 include those which
are mandatory or enforceable under domestic laws or under administrative rulings, or
compliance with which is necessary to obtain an advantage, and which restrict:
(a) the importation by an enterprise of products used in or related to the local
production that it exports;
(b) the importation by an enterprise of products used in or related to its local production
by restricting its access to foreign exchange inflows attributable to the enterprise; or
(c) the exportation or sale for export specified in terms of particular products, in terms
of volume or value of products, or in terms of a preparation of volume or value of its
local production. (Annex to the Agreement on Trade-Related Investment Measures, Vol.
27, Uruguay Round Legal Documents, p. 22125, emphasis supplied).
The paragraph 4 of Article III of GATT 1994 referred to is quoted as follows:
The products of the territory of any contracting party imported into the territory of any
other contracting party shall be accorded treatment no less favorable than that accorded
to like products of national origin in respect of laws, regulations and requirements
affecting their internal sale, offering for sale, purchase, transportation, distribution or
use, the provisions of this paragraph shall not prevent the application of differential
internal transportation charges which are based exclusively on the economic operation of
the means of transport and not on the nationality of the product." (Article III, GATT
1947, as amended by the Protocol Modifying Part II, and Article XXVI of GATT, 14
September 1948, 62 UMTS 82-84 in relation to paragraph 1(a) of the General
Agreement on Tariffs and Trade 1994, Vol. 1, Uruguay Round, Legal Instruments p. 177,
emphasis supplied).
(b) In the area of trade related aspects of intellectual property rights (TRIPS, for
brevity):
Each Member shall accord to the nationals of other Members treatment no less
favourable than that it accords to its own nationals with regard to the protection of
intellectual property. . . (par. 1 Article 3, Agreement on Trade-Related Aspect of
Intellectual Property rights, Vol. 31, Uruguay Round, Legal Instruments, p. 25432
(emphasis supplied)
(c) In the area of the General Agreement on Trade in Services:
National Treatment
1. In the sectors inscribed in its schedule, and subject to any conditions and
qualifications set out therein, each Member shall accord to services and service suppliers
of any other Member, in respect of all measures affecting the supply of
services, treatment no less favourable than it accords to its own like services and service
suppliers.
2. A Member may meet the requirement of paragraph I by according to services and
service suppliers of any other Member, either formally suppliers of any other Member,
either formally identical treatment or formally different treatment to that it accords to its
own like services and service suppliers.
3. Formally identical or formally different treatment shall be considered to be less
favourable if it modifies the conditions of completion in favour of services or service
suppliers of the Member compared to like services or service suppliers of any other
Member. (Article XVII, General Agreement on Trade in Services, Vol. 28, Uruguay Round
Legal Instruments, p. 22610 emphasis supplied).
It is petitioners' position that the foregoing "national treatment" and "parity provisions"
of the WTO Agreement "place nationals and products of member countries on the same
footing as Filipinos and local products," in contravention of the "Filipino First" policy of
the Constitution. They allegedly render meaningless the phrase "effectively controlled by
Filipinos." The constitutional conflict becomes more manifest when viewed in the context
of the clear duty imposed on the Philippines as a WTO member to ensure the conformity
of its laws, regulations and administrative procedures with its obligations as provided in
the annexed agreements. 20 Petitioners further argue that these provisions contravene
constitutional limitations on the role exports play in national development and negate
the preferential treatment accorded to Filipino labor, domestic materials and locally
produced goods.
On the other hand, respondents through the Solicitor General counter (1) that such
Charter provisions are not self-executing and merely set out general policies; (2) that
these nationalistic portions of the Constitution invoked by petitioners should not be read
in isolation but should be related to other relevant provisions of Art. XII, particularly
Secs. 1 and 13 thereof; (3) that read properly, the cited WTO clauses do not conflict
with Constitution; and (4) that the WTO Agreement contains sufficient provisions to
protect developing countries like the Philippines from the harshness of sudden trade
liberalization.
We shall now discuss and rule on these arguments.
Declaration of Principles Not Self-Executing
By its very title, Article II of the Constitution is a "declaration of principles and state
policies." The counterpart of this article in the 1935 Constitution 21 is called the "basic
political creed of the nation" by Dean Vicente Sinco. 22 These principles in Article II are
not intended to be self-executing principles ready for enforcement through the
courts. 23They are used by the judiciary as aids or as guides in the exercise of its power
of judicial review, and by the legislature in its enactment of laws. As held in the leading
case of Kilosbayan, Incorporated vs. Morato, 24 the principles and state policies
enumerated in Article II and some sections of Article XII are not "self-executing
provisions, the disregard of which can give rise to a cause of action in the courts. They
do not embody judicially enforceable constitutional rights but guidelines for legislation."
In the same light, we held in Basco vs. Pagcor 25 that broad constitutional principles
need legislative enactments to implement the, thus:
On petitioners' allegation that P.D. 1869 violates Sections 11 (Personal Dignity) 12
(Family) and 13 (Role of Youth) of Article II; Section 13 (Social Justice) of Article XIII
and Section 2 (Educational Values) of Article XIV of the 1987 Constitution, suffice it to
state also that these are merely statements of principles and policies. As such, they are
basically not self-executing, meaning a law should be passed by Congress to clearly
define and effectuate such principles.
In general, therefore, the 1935 provisions were not intended to be self-executing
principles ready for enforcement through the courts. They were rather directives
addressed to the executive and to the legislature. If the executive and the legislature
failed to heed the directives of the article, the available remedy was not judicial but
political. The electorate could express their displeasure with the failure of the executive
and the legislature through the language of the ballot. (Bernas, Vol. II, p. 2).
The reasons for denying a cause of action to an alleged infringement of board
constitutional principles are sourced from basic considerations of due process and the
lack of judicial authority to wade "into the uncharted ocean of social and economic policy
making." Mr. Justice Florentino P. Feliciano in his concurring opinion in Oposa
vs. Factoran, Jr., explained these reasons as follows:
My suggestion is simply that petitioners must, before the trial court, show a more
specific legal right — a right cast in language of a significantly lower order of generality
than Article II (15) of the Constitution — that is or may be violated by the actions, or
failures to act, imputed to the public respondent by petitioners so that the trial court can
validly render judgment grating all or part of the relief prayed for. To my mind, the court
should be understood as simply saying that such a more specific legal right or rights
may well exist in our corpus of law, considering the general policy principles found in the
Constitution and the existence of the Philippine Environment Code, and that the trial
court should have given petitioners an effective opportunity so to demonstrate, instead
of aborting the proceedings on a motion to dismiss.
It seems to me important that the legal right which is an essential component of a cause
of action be a specific, operable legal right, rather than a constitutional or statutory
policy, for at least two (2) reasons. One is that unless the legal right claimed to have
been violated or disregarded is given specification in operational terms, defendants may
well be unable to defend themselves intelligently and effectively; in other words, there
are due process dimensions to this matter.
The second is a broader-gauge consideration — where a specific violation of law or
applicable regulation is not alleged or proved, petitioners can be expected to fall back on
the expanded conception of judicial power in the second paragraph of Section 1 of
Article VIII of the Constitution which reads:
Sec. 1. . . .
Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion amounting to lack or excess
of jurisdiction on the part of any branch or instrumentality of the Government.
(Emphasis supplied)
When substantive standards as general as "the right to a balanced and healthy ecology"
and "the right to health" are combined with remedial standards as broad ranging as "a
grave abuse of discretion amounting to lack or excess of jurisdiction," the result will be,
it is respectfully submitted, to propel courts into the uncharted ocean of social and
economic policy making. At least in respect of the vast area of environmental protection
and management, our courts have no claim to special technical competence and
experience and professional qualification. Where no specific, operable norms and
standards are shown to exist, then the policy making departments — the legislative and
executive departments — must be given a real and effective opportunity to fashion and
promulgate those norms and standards, and to implement them before the courts
should intervene.
Economic Nationalism Should Be Read with Other Constitutional Mandates to Attain
Balanced Development of Economy
On the other hand, Secs. 10 and 12 of Article XII, apart from merely laying down
general principles relating to the national economy and patrimony, should be read and
understood in relation to the other sections in said article, especially Secs. 1 and 13
thereof which read:
Sec. 1. The goals of the national economy are a more equitable distribution of
opportunities, income, and wealth; a sustained increase in the amount of goods and
services produced by the nation for the benefit of the people; and an expanding
productivity as the key to raising the quality of life for all especially the underprivileged.
The State shall promote industrialization and full employment based on sound
agricultural development and agrarian reform, through industries that make full and
efficient use of human and natural resources, and which are competitive in both
domestic and foreign markets. However, the State shall protect Filipino enterprises
against unfair foreign competition and trade practices.
In the pursuit of these goals, all sectors of the economy and all regions of the country
shall be given optimum opportunity to develop. . . .
Sec. 13. The State shall pursue a trade policy that serves the general welfare and
utilizes all forms and arrangements of exchange on the basis of equality and reciprocity.
As pointed out by the Solicitor General, Sec. 1 lays down the basic goals of national
economic development, as follows:
1. A more equitable distribution of opportunities, income and wealth;
2. A sustained increase in the amount of goods and services provided by the nation for
the benefit of the people; and
3. An expanding productivity as the key to raising the quality of life for all especially the
underprivileged.
With these goals in context, the Constitution then ordains the ideals of economic
nationalism (1) by expressing preference in favor of qualified Filipinos "in the grant of
rights, privileges and concessions covering the national economy and patrimony" 27 and
in the use of "Filipino labor, domestic materials and locally-produced goods"; (2) by
mandating the State to "adopt measures that help make them competitive; 28 and (3)
by requiring the State to "develop a self-reliant and independent national economy
effectively controlled by Filipinos." 29 In similar language, the Constitution takes into
account the realities of the outside world as it requires the pursuit of "a trade policy that
serves the general welfare and utilizes all forms and arrangements of exchange on the
basis of equality ad reciprocity"; 30 and speaks of industries "which are competitive in
both domestic and foreign markets" as well as of the protection of "Filipino enterprises
against unfair foreign competition and trade practices."
It is true that in the recent case of Manila Prince Hotel vs. Government Service
Insurance System, et al., 31 this Court held that "Sec. 10, second par., Art. XII of the
1987 Constitution is a mandatory, positive command which is complete in itself and
which needs no further guidelines or implementing laws or rule for its enforcement.
From its very words the provision does not require any legislation to put it in operation.
It is per se judicially enforceable." However, as the constitutional provision itself states,
it is enforceable only in regard to "the grants of rights, privileges and concessions
covering national economy and patrimony" and not to every aspect of trade and
commerce. It refers to exceptions rather than the rule. The issue here is not whether
this paragraph of Sec. 10 of Art. XII is self-executing or not. Rather, the issue is
whether, as a rule, there are enough balancing provisions in the Constitution to allow
the Senate to ratify the Philippine concurrence in the WTO Agreement. And we hold that
there are.
All told, while the Constitution indeed mandates a bias in favor of Filipino goods,
services, labor and enterprises, at the same time, it recognizes the need for business
exchange with the rest of the world on the bases of equality and reciprocity and limits
protection of Filipino enterprises only against foreign competition and trade practices
that are unfair. In other words, the Constitution did not intend to pursue an isolationist
policy. It did not shut out foreign investments, goods and services in the development of
the Philippine economy. While the Constitution does not encourage the unlimited entry
of foreign goods, services and investments into the country, it does not prohibit them
either. In fact, it allows an exchange on the basis of equality and reciprocity, frowning
only on foreign competition that is unfair.
WTO Recognizes Need to Protect Weak Economies
Upon the other hand, respondents maintain that the WTO itself has some built-in
advantages to protect weak and developing economies, which comprise the vast
majority of its members. Unlike in the UN where major states have permanent seats and
veto powers in the Security Council, in the WTO, decisions are made on the basis of
sovereign equality, with each member's vote equal in weight to that of any other. There
is no WTO equivalent of the UN Security Council.
WTO decides by consensus whenever possible, otherwise, decisions of the Ministerial
Conference and the General Council shall be taken by the majority of the votes cast,
except in cases of interpretation of the Agreement or waiver of the obligation of a
member which would require three fourths vote. Amendments would require two thirds
vote in general. Amendments to MFN provisions and the Amendments provision will
require assent of all members. Any member may withdraw from the Agreement upon
the expiration of six months from the date of notice of withdrawals.
Hence, poor countries can protect their common interests more effectively through the
WTO than through one-on-one negotiations with developed countries. Within the WTO,
developing countries can form powerful blocs to push their economic agenda more
decisively than outside the Organization. This is not merely a matter of practical
alliances but a negotiating strategy rooted in law. Thus, the basic principles underlying
the WTO Agreement recognize the need of developing countries like the Philippines to
"share in the growth in international trade commensurate with the needs of their
economic development." These basic principles are found in the preamble of the WTO
Agreement as follows:
The Parties to this Agreement,
Recognizing that their relations in the field of trade and economic endeavour should be
conducted with a view to raising standards of living, ensuring full employment and a
large and steadily growing volume of real income and effective demand, and expanding
the production of and trade in goods and services, while allowing for the optimal use of
the world's resources in accordance with the objective of sustainable development,
seeking both to protect and preserve the environment and to enhance the means for
doing so in a manner consistent with their respective needs and concerns at different
levels of economic development,
Recognizing further that there is need for positive efforts designed to ensure that
developing countries, and especially the least developed among them, secure a share in
the growth in international trade commensurate with the needs of their economic
development,
Being desirous of contributing to these objectives by entering into reciprocal and
mutually advantageous arrangements directed to the substantial reduction of tariffs and
other barriers to trade and to the elimination of discriminatory treatment in international
trade relations,
Resolved, therefore, to develop an integrated, more viable and durable multilateral
trading system encompassing the General Agreement on Tariffs and Trade, the results of
past trade liberalization efforts, and all of the results of the Uruguay Round of
Multilateral Trade Negotiations,
Determined to preserve the basic principles and to further the objectives underlying this
multilateral trading system, . . . (emphasis supplied.)
Specific WTO Provisos Protect Developing Countries
So too, the Solicitor General points out that pursuant to and consistent with the
foregoing basic principles, the WTO Agreement grants developing countries a more
lenient treatment, giving their domestic industries some protection from the rush of
foreign competition. Thus, with respect to tariffs in general, preferential treatment is
given to developing countries in terms of the amount of tariff reduction and the period
within which the reduction is to be spread out. Specifically, GATT requires an average
tariff reduction rate of 36% for developed countries to be effected within a period of six
(6) years while developing countries — including the Philippines — are required to effect
an average tariff reduction of only 24% within ten (10) years.
In respect to domestic subsidy, GATT requires developed countries to reduce domestic
support to agricultural products by 20% over six (6) years, as compared to only 13% for
developing countries to be effected within ten (10) years.
In regard to export subsidy for agricultural products, GATT requires developed countries
to reduce their budgetary outlays for export subsidy by 36% and export volumes
receiving export subsidy by 21% within a period of six (6) years. For developing
countries, however, the reduction rate is only two-thirds of that prescribed for developed
countries and a longer period of ten (10) years within which to effect such reduction.
Moreover, GATT itself has provided built-in protection from unfair foreign competition
and trade practices including anti-dumping measures, countervailing measures and
safeguards against import surges. Where local businesses are jeopardized by unfair
foreign competition, the Philippines can avail of these measures. There is hardly
therefore any basis for the statement that under the WTO, local industries and
enterprises will all be wiped out and that Filipinos will be deprived of control of the
economy. Quite the contrary, the weaker situations of developing nations like the
Philippines have been taken into account; thus, there would be no basis to say that in
joining the WTO, the respondents have gravely abused their discretion. True, they have
made a bold decision to steer the ship of state into the yet uncharted sea of economic
liberalization. But such decision cannot be set aside on the ground of grave abuse of
discretion, simply because we disagree with it or simply because we believe only in other
economic policies. As earlier stated, the Court in taking jurisdiction of this case will not
pass upon the advantages and disadvantages of trade liberalization as an economic
policy. It will only perform its constitutional duty of determining whether the Senate
committed grave abuse of discretion.
Constitution Does Not Rule Out Foreign Competition
Furthermore, the constitutional policy of a "self-reliant and independent national
economy" does not necessarily rule out the entry of foreign investments, goods and
services. It contemplates neither "economic seclusion" nor "mendicancy in the
international community." As explained by Constitutional Commissioner Bernardo
Villegas, sponsor of this constitutional policy:
Economic self-reliance is a primary objective of a developing country that is keenly
aware of overdependence on external assistance for even its most basic needs. It does
not mean autarky or economic seclusion; rather, it means avoiding mendicancy in the
international community. Independence refers to the freedom from undue foreign
control of the national economy, especially in such strategic industries as in the
development of natural resources and public utilities.
The WTO reliance on "most favored nation," "national treatment," and "trade without
discrimination" cannot be struck down as unconstitutional as in fact they are rules of
equality and reciprocity that apply to all WTO members. Aside from envisioning a trade
policy based on "equality and reciprocity," 37 the fundamental law encourages industries
that are "competitive in both domestic and foreign markets," thereby demonstrating a
clear policy against a sheltered domestic trade environment, but one in favor of the
gradual development of robust industries that can compete with the best in the foreign
markets. Indeed, Filipino managers and Filipino enterprises have shown capability and
tenacity to compete internationally. And given a free trade environment, Filipino
entrepreneurs and managers in Hongkong have demonstrated the Filipino capacity to
grow and to prosper against the best offered under a policy of laissez faire.
Constitution Favors Consumers, Not Industries or Enterprises
The Constitution has not really shown any unbalanced bias in favor of any business or
enterprise, nor does it contain any specific pronouncement that Filipino companies
should be pampered with a total proscription of foreign competition. On the other hand,
respondents claim that WTO/GATT aims to make available to the Filipino consumer the
best goods and services obtainable anywhere in the world at the most reasonable prices.
Consequently, the question boils down to whether WTO/GATT will favor the general
welfare of the public at large.
Will adherence to the WTO treaty bring this ideal (of favoring the general welfare) to
reality?
Will WTO/GATT succeed in promoting the Filipinos' general welfare because it will — as
promised by its promoters — expand the country's exports and generate more
employment?
Will it bring more prosperity, employment, purchasing power and quality products at the
most reasonable rates to the Filipino public?
The responses to these questions involve "judgment calls" by our policy makers, for
which they are answerable to our people during appropriate electoral exercises. Such
questions and the answers thereto are not subject to judicial pronouncements based on
grave abuse of discretion.
Constitution Designed to Meet Future Events and Contingencies
No doubt, the WTO Agreement was not yet in existence when the Constitution was
drafted and ratified in 1987. That does not mean however that the Charter is necessarily
flawed in the sense that its framers might not have anticipated the advent of a
borderless world of business. By the same token, the United Nations was not yet in
existence when the 1935 Constitution became effective. Did that necessarily mean that
the then Constitution might not have contemplated a diminution of the absoluteness of
sovereignty when the Philippines signed the UN Charter, thereby effectively surrendering
part of its control over its foreign relations to the decisions of various UN organs like the
Security Council?
It is not difficult to answer this question. Constitutions are designed to meet not only the
vagaries of contemporary events. They should be interpreted to cover even future and
unknown circumstances. It is to the credit of its drafters that a Constitution can
withstand the assaults of bigots and infidels but at the same time bend with the
refreshing winds of change necessitated by unfolding events. As one eminent political
law writer and respected jurist 38explains:
The Constitution must be quintessential rather than superficial, the root and not the
blossom, the base and frame-work only of the edifice that is yet to rise. It is but the
core of the dream that must take shape, not in a twinkling by mandate of our delegates,
but slowly "in the crucible of Filipino minds and hearts," where it will in time develop its
sinews and gradually gather its strength and finally achieve its substance. In fine, the
Constitution cannot, like the goddess Athena, rise full-grown from the brow of the
Constitutional Convention, nor can it conjure by mere fiat an instant Utopia. It must
grow with the society it seeks to re-structure and march apace with the progress of the
race, drawing from the vicissitudes of history the dynamism and vitality that will keep it,
far from becoming a petrified rule, a pulsing, living law attuned to the heartbeat of the
nation.
Third Issue: The WTO Agreement and Legislative Power
The WTO Agreement provides that "(e)ach Member shall ensure the conformity of its
laws, regulations and administrative procedures with its obligations as provided in the
annexed Agreements." 39 Petitioners maintain that this undertaking "unduly limits,
restricts and impairs Philippine sovereignty, specifically the legislative power which
under Sec. 2, Article VI of the 1987 Philippine Constitution is vested in the Congress of
the Philippines. It is an assault on the sovereign powers of the Philippines because this
means that Congress could not pass legislation that will be good for our national interest
and general welfare if such legislation will not conform with the WTO Agreement, which
not only relates to the trade in goods . . . but also to the flow of investments and money
. . . as well as to a whole slew of agreements on socio-cultural matters . . .
More specifically, petitioners claim that said WTO proviso derogates from the power to
tax, which is lodged in the Congress. 41 And while the Constitution allows Congress to
authorize the President to fix tariff rates, import and export quotas, tonnage and
wharfage dues, and other duties or imposts, such authority is subject to "specified limits
and . . . such limitations and restrictions" as Congress may provide, 42 as in fact it did
under Sec. 401 of the Tariff and Customs Code.
Sovereignty Limited by International Law and Treaties
This Court notes and appreciates the ferocity and passion by which petitioners stressed
their arguments on this issue. However, while sovereignty has traditionally been deemed
absolute and all-encompassing on the domestic level, it is however subject to
restrictions and limitations voluntarily agreed to by the Philippines, expressly or
impliedly, as a member of the family of nations. Unquestionably, the Constitution did not
envision a hermit-type isolation of the country from the rest of the world. In its
Declaration of Principles and State Policies, the Constitution "adopts the generally
accepted principles of international law as part of the law of the land, and adheres to the
policy of peace, equality, justice, freedom, cooperation and amity, with all
nations." 43 By the doctrine of incorporation, the country is bound by generally accepted
principles of international law, which are considered to be automatically part of our own
laws. 44 One of the oldest and most fundamental rules in international law is pacta sunt
servanda — international agreements must be performed in good faith. "A treaty
engagement is not a mere moral obligation but creates a legally binding obligation on
the parties . . . A state which has contracted valid international obligations is bound to
make in its legislations such modifications as may be necessary to ensure the fulfillment
of the obligations undertaken." 45
By their inherent nature, treaties really limit or restrict the absoluteness of sovereignty.
By their voluntary act, nations may surrender some aspects of their state power in
exchange for greater benefits granted by or derived from a convention or pact. After all,
states, like individuals, live with coequals, and in pursuit of mutually covenanted
objectives and benefits, they also commonly agree to limit the exercise of their
otherwise absolute rights. Thus, treaties have been used to record agreements between
States concerning such widely diverse matters as, for example, the lease of naval bases,
the sale or cession of territory, the termination of war, the regulation of conduct of
hostilities, the formation of alliances, the regulation of commercial relations, the settling
of claims, the laying down of rules governing conduct in peace and the establishment of
international organizations. 46 The sovereignty of a state therefore cannot in fact and in
reality be considered absolute. Certain restrictions enter into the picture: (1) limitations
imposed by the very nature of membership in the family of nations and (2) limitations
imposed by treaty stipulations. As aptly put by John F. Kennedy, "Today, no nation can
build its destiny alone. The age of self-sufficient nationalism is over. The age of
interdependence is here."
UN Charter and Other Treaties Limit Sovereignty
Thus, when the Philippines joined the United Nations as one of its 51 charter members,
it consented to restrict its sovereign rights under the "concept of sovereignty as auto-
limitation."47-A Under Article 2 of the UN Charter, "(a)ll members shall give the United
Nations every assistance in any action it takes in accordance with the present Charter,
and shall refrain from giving assistance to any state against which the United Nations is
taking preventive or enforcement action." Such assistance includes payment of its
corresponding share not merely in administrative expenses but also in expenditures for
the peace-keeping operations of the organization. In its advisory opinion of July 20,
1961, the International Court of Justice held that money used by the United Nations
Emergency Force in the Middle East and in the Congo were "expenses of the United
Nations" under Article 17, paragraph 2, of the UN Charter. Hence, all its members must
bear their corresponding share in such expenses. In this sense, the Philippine Congress
is restricted in its power to appropriate. It is compelled to appropriate funds whether it
agrees with such peace-keeping expenses or not. So too, under Article 105 of the said
Charter, the UN and its representatives enjoy diplomatic privileges and immunities,
thereby limiting again the exercise of sovereignty of members within their own territory.
Another example: although "sovereign equality" and "domestic jurisdiction" of all
members are set forth as underlying principles in the UN Charter, such provisos are
however subject to enforcement measures decided by the Security Council for the
maintenance of international peace and security under Chapter VII of the Charter. A
final example: under Article 103, "(i)n the event of a conflict between the obligations of
the Members of the United Nations under the present Charter and their obligations
under any other international agreement, their obligation under the present charter shall
prevail," thus unquestionably denying the Philippines — as a member — the sovereign
power to make a choice as to which of conflicting obligations, if any, to honor.
Apart from the UN Treaty, the Philippines has entered into many other international
pacts — both bilateral and multilateral — that involve limitations on Philippine
sovereignty. These are enumerated by the Solicitor General in his Compliance dated
October 24, 1996, as follows:
(a) Bilateral convention with the United States regarding taxes on income, where the
Philippines agreed, among others, to exempt from tax, income received in the
Philippines by, among others, the Federal Reserve Bank of the United States, the
Export/Import Bank of the United States, the Overseas Private Investment Corporation
of the United States. Likewise, in said convention, wages, salaries and similar
remunerations paid by the United States to its citizens for labor and personal services
performed by them as employees or officials of the United States are exempt from
income tax by the Philippines.
(b) Bilateral agreement with Belgium, providing, among others, for the avoidance of
double taxation with respect to taxes on income.
(c) Bilateral convention with the Kingdom of Sweden for the avoidance of double
taxation.
(d) Bilateral convention with the French Republic for the avoidance of double taxation.
(e) Bilateral air transport agreement with Korea where the Philippines agreed to exempt
from all customs duties, inspection fees and other duties or taxes aircrafts of South
Korea and the regular equipment, spare parts and supplies arriving with said aircrafts.
(f) Bilateral air service agreement with Japan, where the Philippines agreed to exempt
from customs duties, excise taxes, inspection fees and other similar duties, taxes or
charges fuel, lubricating oils, spare parts, regular equipment, stores on board Japanese
aircrafts while on Philippine soil.
(g) Bilateral air service agreement with Belgium where the Philippines granted Belgian
air carriers the same privileges as those granted to Japanese and Korean air carriers
under separate air service agreements.
(h) Bilateral notes with Israel for the abolition of transit and visitor visas where the
Philippines exempted Israeli nationals from the requirement of obtaining transit or visitor
visas for a sojourn in the Philippines not exceeding 59 days.
(i) Bilateral agreement with France exempting French nationals from the requirement of
obtaining transit and visitor visa for a sojourn not exceeding 59 days.
(j) Multilateral Convention on Special Missions, where the Philippines agreed that
premises of Special Missions in the Philippines are inviolable and its agents cannot enter
said premises without consent of the Head of Mission concerned. Special Missions are
also exempted from customs duties, taxes and related charges.
(k) Multilateral convention on the Law of Treaties. In this convention, the Philippines
agreed to be governed by the Vienna Convention on the Law of Treaties.
(l) Declaration of the President of the Philippines accepting compulsory jurisdiction of the
International Court of Justice. The International Court of Justice has jurisdiction in all
legal disputes concerning the interpretation of a treaty, any question of international
law, the existence of any fact which, if established, would constitute a breach "of
international obligation."
In the foregoing treaties, the Philippines has effectively agreed to limit the exercise of its
sovereign powers of taxation, eminent domain and police power. The underlying
consideration in this partial surrender of sovereignty is the reciprocal commitment of the
other contracting states in granting the same privilege and immunities to the Philippines,
its officials and its citizens. The same reciprocity characterizes the Philippine
commitments under WTO-GATT.
International treaties, whether relating to nuclear disarmament, human rights, the
environment, the law of the sea, or trade, constrain domestic political sovereignty
through the assumption of external obligations. But unless anarchy in international
relations is preferred as an alternative, in most cases we accept that the benefits of the
reciprocal obligations involved outweigh the costs associated with any loss of political
sovereignty. (T)rade treaties that structure relations by reference to durable, well-
defined substantive norms and objective dispute resolution procedures reduce the risks
of larger countries exploiting raw economic power to bully smaller countries, by
subjecting power relations to some form of legal ordering. In addition, smaller countries
typically stand to gain disproportionately from trade liberalization. This is due to the
simple fact that liberalization will provide access to a larger set of potential new trading
relationship than in case of the larger country gaining enhanced success to the smaller
country's market. 48
The point is that, as shown by the foregoing treaties, a portion of sovereignty may be
waived without violating the Constitution, based on the rationale that the Philippines
"adopts the generally accepted principles of international law as part of the law of the
land and adheres to the policy of . . . cooperation and amity with all nations."
Fourth Issue: The WTO Agreement and Judicial Power
Petitioners aver that paragraph 1, Article 34 of the General Provisions and Basic
Principles of the Agreement on Trade-Related Aspects of Intellectual Property Rights
(TRIPS) intrudes on the power of the Supreme Court to promulgate rules concerning
pleading, practice and procedures.
To understand the scope and meaning of Article 34, TRIPS, it will be fruitful to restate its
full text as follows:
Article 34
Process Patents: Burden of Proof
1. For the purposes of civil proceedings in respect of the infringement of the rights of the
owner referred to in paragraph 1 (b) of Article 28, if the subject matter of a patent is a
process for obtaining a product, the judicial authorities shall have the authority to order
the defendant to prove that the process to obtain an identical product is different from
the patented process. Therefore, Members shall provide, in at least one of the following
circumstances, that any identical product when produced without the consent of the
patent owner shall, in the absence of proof to the contrary, be deemed to have been
obtained by the patented process:
(a) if the product obtained by the patented process is new;
(b) if there is a substantial likelihood that the identical product was made by the process
and the owner of the patent has been unable through reasonable efforts to determine
the process actually used.
2. Any Member shall be free to provide that the burden of proof indicated in paragraph 1
shall be on the alleged infringer only if the condition referred to in subparagraph (a) is
fulfilled or only if the condition referred to in subparagraph (b) is fulfilled.
3. In the adduction of proof to the contrary, the legitimate interests of defendants in
protecting their manufacturing and business secrets shall be taken into account.
From the above, a WTO Member is required to provide a rule of disputable (not the
words "in the absence of proof to the contrary") presumption that a product shown to be
identical to one produced with the use of a patented process shall be deemed to have
been obtained by the (illegal) use of the said patented process, (1) where such product
obtained by the patented product is new, or (2) where there is "substantial likelihood"
that the identical product was made with the use of the said patented process but the
owner of the patent could not determine the exact process used in obtaining such
identical product. Hence, the "burden of proof" contemplated by Article 34 should
actually be understood as the duty of the alleged patent infringer to overthrow such
presumption. Such burden, properly understood, actually refers to the "burden of
evidence" (burden of going forward) placed on the producer of the identical (or fake)
product to show that his product was produced without the use of the patented process.
The foregoing notwithstanding, the patent owner still has the "burden of proof" since,
regardless of the presumption provided under paragraph 1 of Article 34, such owner still
has to introduce evidence of the existence of the alleged identical product, the fact that
it is "identical" to the genuine one produced by the patented process and the fact of
"newness" of the genuine product or the fact of "substantial likelihood" that the identical
product was made by the patented process.
The foregoing should really present no problem in changing the rules of evidence as the
present law on the subject, Republic Act No. 165, as amended, otherwise known as the
Patent Law, provides a similar presumption in cases of infringement of patented design
or utility model, thus:
Sec. 60. Infringement. — Infringement of a design patent or of a patent for utility model
shall consist in unauthorized copying of the patented design or utility model for the
purpose of trade or industry in the article or product and in the making, using or selling
of the article or product copying the patented design or utility model. Identity or
substantial identity with the patented design or utility model shall constitute evidence of
copying. (emphasis supplied)
Moreover, it should be noted that the requirement of Article 34 to provide a disputable
presumption applies only if (1) the product obtained by the patented process in NEW or
(2) there is a substantial likelihood that the identical product was made by the process
and the process owner has not been able through reasonable effort to determine the
process used. Where either of these two provisos does not obtain, members shall be free
to determine the appropriate method of implementing the provisions of TRIPS within
their own internal systems and processes.
By and large, the arguments adduced in connection with our disposition of the third
issue — derogation of legislative power — will apply to this fourth issue also. Suffice it to
say that the reciprocity clause more than justifies such intrusion, if any actually exists.
Besides, Article 34 does not contain an unreasonable burden, consistent as it is with due
process and the concept of adversarial dispute settlement inherent in our judicial
system.
So too, since the Philippine is a signatory to most international conventions on patents,
trademarks and copyrights, the adjustment in legislation and rules of procedure will not
be substantial.
Fifth Issue: Concurrence Only in the WTO Agreement and Not in Other Documents
Contained in the Final Act
Petitioners allege that the Senate concurrence in the WTO Agreement and its annexes —
but not in the other documents referred to in the Final Act, namely the Ministerial
Declaration and Decisions and the Understanding on Commitments in Financial Services
— is defective and insufficient and thus constitutes abuse of discretion. They submit that
such concurrence in the WTO Agreement alone is flawed because it is in effect a
rejection of the Final Act, which in turn was the document signed by Secretary Navarro,
in representation of the Republic upon authority of the President. They contend that the
second letter of the President to the Senate which enumerated what constitutes the
Final Act should have been the subject of concurrence of the Senate.
"A final act, sometimes called protocol de cloture, is an instrument which records the
winding up of the proceedings of a diplomatic conference and usually includes a
reproduction of the texts of treaties, conventions, recommendations and other acts
agreed upon and signed by the plenipotentiaries attending the conference." It is not the
treaty itself. It is rather a summary of the proceedings of a protracted conference which
may have taken place over several years. The text of the "Final Act Embodying the
Results of the Uruguay Round of Multilateral Trade Negotiations" is contained in just one
page in Vol. I of the 36-volume Uruguay Round of Multilateral Trade Negotiations. By
signing said Final Act, Secretary Navarro as representative of the Republic of the
Philippines undertook:
(a) to submit, as appropriate, the WTO Agreement for the consideration of their
respective competent authorities with a view to seeking approval of the Agreement in
accordance with their procedures; and
(b) to adopt the Ministerial Declarations and Decisions.
The assailed Senate Resolution No. 97 expressed concurrence in exactly what the Final
Act required from its signatories, namely, concurrence of the Senate in the WTO
Agreement.
The Ministerial Declarations and Decisions were deemed adopted without need for
ratification. They were approved by the ministers by virtue of Article XXV: 1 of GATT
which provides that representatives of the members can meet "to give effect to those
provisions of this Agreement which invoke joint action, and generally with a view to
facilitating the operation and furthering the objectives of this Agreement."
The Understanding on Commitments in Financial Services also approved in Marrakesh
does not apply to the Philippines. It applies only to those 27 Members which "have
indicated in their respective schedules of commitments on standstill, elimination of
monopoly, expansion of operation of existing financial service suppliers, temporary entry
of personnel, free transfer and processing of information, and national treatment with
respect to access to payment, clearing systems and refinancing available in the normal
course of business."
On the other hand, the WTO Agreement itself expresses what multilateral agreements
are deemed included as its integral parts, 58 as follows:
Article II
Scope of the WTO
1. The WTO shall provide the common institutional frame-work for the conduct of trade
relations among its Members in matters to the agreements and associated legal
instruments included in the Annexes to this Agreement.
2. The Agreements and associated legal instruments included in Annexes 1, 2, and 3,
(hereinafter referred to as "Multilateral Agreements") are integral parts of this
Agreement, binding on all Members.
3. The Agreements and associated legal instruments included in Annex 4 (hereinafter
referred to as "Plurilateral Trade Agreements") are also part of this Agreement for those
Members that have accepted them, and are binding on those Members. The Plurilateral
Trade Agreements do not create either obligation or rights for Members that have not
accepted them.
4. The General Agreement on Tariffs and Trade 1994 as specified in annex 1A
(hereinafter referred to as "GATT 1994") is legally distinct from the General Agreement
on Tariffs and Trade, dated 30 October 1947, annexed to the Final Act adopted at the
conclusion of the Second Session of the Preparatory Committee of the United Nations
Conference on Trade and Employment, as subsequently rectified, amended or modified
(hereinafter referred to as "GATT 1947").
It should be added that the Senate was well-aware of what it was concurring in as
shown by the members' deliberation on August 25, 1994. After reading the letter of
President Ramos dated August 11, 1994, 59 the senators
of the Republic minutely dissected what the Senate was concurring in, as follows: 60
THE CHAIRMAN: Yes. Now, the question of the validity of the submission came up in the
first day hearing of this Committee yesterday. Was the observation made by Senator
Tañada that what was submitted to the Senate was not the agreement on establishing
the World Trade Organization by the final act of the Uruguay Round which is not the
same as the agreement establishing the World Trade Organization? And on that basis,
Senator Tolentino raised a point of order which, however, he agreed to withdraw upon
understanding that his suggestion for an alternative solution at that time was
acceptable. That suggestion was to treat the proceedings of the Committee as being in
the nature of briefings for Senators until the question of the submission could be
clarified.
And so, Secretary Romulo, in effect, is the President submitting a new . . . is he making
a new submission which improves on the clarity of the first submission?
MR. ROMULO: Mr. Chairman, to make sure that it is clear cut and there should be no
misunderstanding, it was his intention to clarify all matters by giving this letter.
THE CHAIRMAN: Thank you.
Can this Committee hear from Senator Tañada and later on Senator Tolentino since they
were the ones that raised this question yesterday?
Senator Tañada, please.
SEN. TAÑADA: Thank you, Mr. Chairman.
Based on what Secretary Romulo has read, it would now clearly appear that what is
being submitted to the Senate for ratification is not the Final Act of the Uruguay Round,
but rather the Agreement on the World Trade Organization as well as the Ministerial
Declarations and Decisions, and the Understanding and Commitments in Financial
Services.
I am now satisfied with the wording of the new submission of President Ramos.
SEN. TAÑADA. . . . of President Ramos, Mr. Chairman.
THE CHAIRMAN. Thank you, Senator Tañada. Can we hear from Senator Tolentino? And
after him Senator Neptali Gonzales and Senator Lina.
SEN. TOLENTINO, Mr. Chairman, I have not seen the new submission actually
transmitted to us but I saw the draft of his earlier, and I think it now complies with the
provisions of the Constitution, and with the Final Act itself . The Constitution does not
require us to ratify the Final Act. It requires us to ratify the Agreement which is now
being submitted. The Final Act itself specifies what is going to be submitted to with the
governments of the participants.
In paragraph 2 of the Final Act, we read and I quote:
By signing the present Final Act, the representatives agree: (a) to submit as appropriate
the WTO Agreement for the consideration of the respective competent authorities with a
view to seeking approval of the Agreement in accordance with their procedures.
In other words, it is not the Final Act that was agreed to be submitted to the
governments for ratification or acceptance as whatever their constitutional procedures
may provide but it is the World Trade Organization Agreement. And if that is the one
that is being submitted now, I think it satisfies both the Constitution and the Final Act
itself .
Thank you, Mr. Chairman.
THE CHAIRMAN. Thank you, Senator Tolentino, May I call on Senator Gonzales.
SEN. GONZALES. Mr. Chairman, my views on this matter are already a matter of
record. And they had been adequately reflected in the journal of yesterday's session and
I don't see any need for repeating the same.
Now, I would consider the new submission as an act ex abudante cautela.
THE CHAIRMAN. Thank you, Senator Gonzales. Senator Lina, do you want to make any
comment on this?
SEN. LINA. Mr. President, I agree with the observation just made by Senator Gonzales
out of the abundance of question. Then the new submission is, I believe, stating the
obvious and therefore I have no further comment to make.
Epilogue
In praying for the nullification of the Philippine ratification of the WTO Agreement,
petitioners are invoking this Court's constitutionally imposed duty "to determine whether
or not there has been grave abuse of discretion amounting to lack or excess of
jurisdiction" on the part of the Senate in giving its concurrence therein via Senate
Resolution No. 97. Procedurally, a writ of certiorari grounded on grave abuse of
discretion may be issued by the Court under Rule 65 of the Rules of Court when it is
amply shown that petitioners have no other plain, speedy and adequate remedy in the
ordinary course of law.
By grave abuse of discretion is meant such capricious and whimsical exercise of
judgment as is equivalent to lack of jurisdiction. 61 Mere abuse of discretion is not
enough. It must be grave abuse of discretion as when the power is exercised in an
arbitrary or despotic manner by reason of passion or personal hostility, and must be so
patent and so gross as to amount to an evasion of a positive duty or to a virtual refusal
to perform the duty enjoined or to act at all in contemplation of law. Failure on the part
of the petitioner to show grave abuse of discretion will result in the dismissal of the
petition.
In rendering this Decision, this Court never forgets that the Senate, whose act is under
review, is one of two sovereign houses of Congress and is thus entitled to great respect
in its actions. It is itself a constitutional body independent and coordinate, and thus its
actions are presumed regular and done in good faith. Unless convincing proof and
persuasive arguments are presented to overthrow such presumptions, this Court will
resolve every doubt in its favor. Using the foregoing well-accepted definition of grave
abuse of discretion and the presumption of regularity in the Senate's processes, this
Court cannot find any cogent reason to impute grave abuse of discretion to the Senate's
exercise of its power of concurrence in the WTO Agreement granted it by Sec. 21 of
Article VII of the Constitution.
It is true, as alleged by petitioners, that broad constitutional principles require the State
to develop an independent national economy effectively controlled by Filipinos; and to
protect and/or prefer Filipino labor, products, domestic materials and locally produced
goods. But it is equally true that such principles — while serving as judicial and
legislative guides — are not in themselves sources of causes of action. Moreover, there
are other equally fundamental constitutional principles relied upon by the Senate which
mandate the pursuit of a "trade policy that serves the general welfare and utilizes all
forms and arrangements of exchange on the basis of equality and reciprocity" and the
promotion of industries "which are competitive in both domestic and foreign markets,"
thereby justifying its acceptance of said treaty. So too, the alleged impairment of
sovereignty in the exercise of legislative and judicial powers is balanced by the adoption
of the generally accepted principles of international law as part of the law of the land
and the adherence of the Constitution to the policy of cooperation and amity with all
nations.
That the Senate, after deliberation and voting, voluntarily and overwhelmingly gave its
consent to the WTO Agreement thereby making it "a part of the law of the land" is a
legitimate exercise of its sovereign duty and power. We find no "patent and gross"
arbitrariness or despotism "by reason of passion or personal hostility" in such exercise.
It is not impossible to surmise that this Court, or at least some of its members, may
even agree with petitioners that it is more advantageous to the national interest to
strike down Senate Resolution No. 97. But that is not a legal reason to attribute grave
abuse of discretion to the Senate and to nullify its decision. To do so would constitute
grave abuse in the exercise of our own judicial power and duty. Ineludably, what the
Senate did was a valid exercise of its authority. As to whether such exercise was wise,
beneficial or viable is outside the realm of judicial inquiry and review. That is a matter
between the elected policy makers and the people. As to whether the nation should join
the worldwide march toward trade liberalization and economic globalization is a matter
that our people should determine in electing their policy makers. After all, the WTO
Agreement allows withdrawal of membership, should this be the political desire of a
member.
The eminent futurist John Naisbitt, author of the best seller Megatrends, predicts an
Asian Renaissance 65 where "the East will become the dominant region of the world
economically, politically and culturally in the next century." He refers to the "free
market" espoused by WTO as the "catalyst" in this coming Asian ascendancy. There are
at present about 31 countries including China, Russia and Saudi Arabia negotiating for
membership in the WTO. Notwithstanding objections against possible limitations on
national sovereignty, the WTO remains as the only viable structure for multilateral
trading and the veritable forum for the development of international trade law. The
alternative to WTO is isolation, stagnation, if not economic self-destruction. Duly
enriched with original membership, keenly aware of the advantages and disadvantages
of globalization with its on-line experience, and endowed with a vision of the future, the
Philippines now straddles the crossroads of an international strategy for economic
prosperity and stability in the new millennium. Let the people, through their duly
authorized elected officers, make their free choice.
WHEREFORE, the petition is DISMISSED for lack of merit.
SO ORDERED.
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G.R. No. L-533 August 20, 1946
RAMON RUFFY, ET AL., petitioners, vs. THE CHIEF OF STAFF, PHILIPPINE ARMY,
ET AL., respondents.
Placido C. Ramos for petitioners.
Lt. Col. Fred Ruiz Castro and Capt. Ramon V. Diaz, JAGS, PA., for respondents.
TUASON, J.:
This was a petition for prohibition, praying that the respondents, the Chief of Staff and
the General Court Martial of the Philippine Army, be commanded to desist from further
proceedings in the trial of petitioners before that body. Preliminary injunction having
been denied by us and the General Court Martial having gone ahead with the trial, which
eventually resulted in the acquittal of one of the defendants, Ramon Ruffy, the dismissal
of the case as to another, Victoriano Dinglasan, and the conviction of Jose L. Garcia,
Prudente M. Francisco, Dominador Adeva and Andres Fortus, the last-named four
petitioners now seek in their memorandum to convert the petition into one for certiorari,
with the prayer that the records of the proceedings before the General Court Martial be
ordered certified to this court for review.
The ground of the petition was that the petitioners were not subject to military law at
the time the offense for which they had been placed on trial was committed. In their
memorandum they have raised an additional question of law — that the 93d Article of
War is unconstitutional.
An outline of the petitioner's previous connection with the Philippine Army, the Philippine
Constabulary, and/or with guerrilla organizations will presently be made. This outline is
based on allegations in the petition and the answer, and on exhibits attached thereto
and to the parties' memoranda, exhibits which were offered in the course of the oral
argument and admitted without objection. The said exhibits are public documents
certified by the officials who had them in custody in their official capacity. They are
presumed to be authentic, as we have no doubt they are.
It appears that at the outbreak of war on December 8, 1941, Ramon Ruffy was the
Provincial Commander, Prudente M. Francisco, a junior officer, and Andres Fortus, a
corporal, all of the Philippine Constabulary garrison stationed in Mindoro. When, on
February 27, 1942, the Japanese forces landed in Mindoro, Major Ruffy retreated to the
mountains instead of surrendering to the enemy, disbanded his company, and organized
and led a guerrilla outfit known as Bolo Combat team of Bolo Area. Lieutenant Francisco,
Corporal Fortus and Jose L. Garcia, the last then a civilian joined Major Ruffy's
organization towards the latter part of 1942, while Dominador Adeva and Victoriano
Dinglasan, then likewise civilians, became its members some time in 1943..

Meanwhile, Brigadier General Macario Peralta, Jr., then a lieutenant colonel of the
Philippine Army, also took to the hills of Panay and led the operation of the 6th Military
District, one of the districts into which the Philippine Army had been divided before the
war. About November, 1942, Colonel Peralta succeeded in contacting the General
Headquarters of General MacArthur in Australia as the result of which on February 13,
1943, the 6th Military District was recognized by the Headquarters of the Southwest
Pacific Area as a military unit and part of its command.
Even before General MacArthur's recognition of the 6th Military District Colonel Peralta
had extended its sphere of operation to comprise Mindoro and Marinduque, and had, on
January 2, 1943, named Major Ruffy as Acting Commander for those two provinces and
Commanding Officer of the 3rd Battalion, 66 Infantry 61st Division, Philippine Corps.
After the recognition, 2d Lieut. Prudente M. Francisco, by virtue of Special Orders No.
99, dated November 2, 1943, and signed by Enrique L. Jurado, Major, OSE,
Commanding, was assigned as S-3 in the Bolo Area. Major, later Lieut. Col., Jurado, it
should be noted, had been dispatched by the 6th Military District to Mindoro to assume
operational control supervision over the Bolo Area unit and to make and direct the
necessary report to the Headquarters, 6th Military District, in Panay. On April 26, 1944,
by General Orders No. 40 of the 6th Military District, 2d Lieutenant Francisco was
promoted to the rank of 1st Lieutenant (Brevet), effective April 15, 1944, subject to
approval by the President of the Philippines, and was re-assigned to the Bolo Area. As to
Andres Fortus he was assigned to the same Bolo Area as probationary 3d lieutenant for
two-month probationary training, by the Headquarters of the 6th Military District, as per
Special Orders No. 70, dated May 15, 1944.
According to a memorandum of the Chief of Staff, 6th Military District, dated January
1943, and signed by L.R. Relunia, Lieut. Col., CE, Chief of Staff, Jose L. Garcia and
Dominador Adeva were appointed 3d lieutenants, infantry as of December 31, 1942.
Garcia later was promoted to the rank of captain, effective March 15, 1943, as per
Special Orders No. 82, issued in the field, 6th Military District, and dated August 28,
1943. On May 24, 1943, Jose L. Garcia took his oath before Captain Esteban P. Beloncio,
then Acting Commanding Officer, 3d Battalion, 66th Infantry Regiment, 61st Division,
6th Military District.
As has been said, the 6th Military District sent Lieut. Col. Enrique L. Jurado to be
Commanding Officer of the Bolo Combat Team in Mindoro and to undertake other
missions of Military character. Pursuant to instructions, Colonel Jurado on November 2,
1943, assigned Major Ruffy as Commanding Officer of the Bolo Area with 3d Lieut.
Dominador Adeva and 2d Lieut. Prudente M. Francisco as members of his staff and
Victoriano Dinglasan as Finance Officer, as per Special Orders No. 99 dated November 2,
1943. In a memorandum of Colonel Jurado for Major Ruffy bearing date 25 June, 1944,
it was stated that Captain Garcia had been given P5,000 for palay and Lieut. Francisco
P9,000, P5,000 for palay and P4,000 for salary of the personnel B. Company.
A change in the command of the Bolo Area was effected by Colonel Jurado on June 8,
1944: Major Ruffy was relieved of his assignment as Commanding Officer, Bolo
Battalion, and Capt. Esteban P. Beloncio was put in Ruffy's place. On October 19, 1944,
Lieut. Col. Jurado was slain allegedly by the petitioners. After the commission of this
crime, the petitioners, it is alleged, seceded from the 6th Military District. It was this
murder which gave rise to petitioner's trial, the legality of which is now being contested.
On July 26, 1941, the President of the Untied States issued a military order the pertinent
paragraph of which stated: ". . . as Commander in Chief of the Army and Navy of the
United States, I hereby call and order into the service of the armed forces of the United
States Army, for the period of the existing emergency, and place under the command of
the general officer, United States Army, to be designated by the Secretary of War, from
time to time, all of the organized military forces of the Government of the
Commonwealth." Following the issuance of President Roosevelt's order General Douglas
MacArthur was appointed Commanding General of the United States Armed Forces in the
Far East.
It is contended, in behalf of Captain Francisco and Lieutenant Fortus, that "by the enemy
occupation of the Philippines, the National Defense Act and all laws and regulations
creating and governing the existence of the Philippine Army including the Articles of
War, were suspended and in abeyance during such belligerent occupation."
The paragraph quoted in the petitioner's memorandum from Winthrop's Military Law and
Precedents and the subsequent paragraph which has been omitted furnish a complete
answer to petitioner's contention of the Philippines by Japanese forces, the officers and
men of the Philippine Army did not cease to be fully in the service, though in a
measure,' only in a measure, they were not subject to the military jurisdiction, if they
were not active duty. In the latter case, like officers and soldiers on leave of absence or
held as prisoners of war, they could not be held guilty of a breach of the discipline of the
command or of a neglect of duty, or disobedience of orders, or mutiny, or subject to a
military trial therefor; but for an act unbecoming an officer and a gentleman, or an act
which constitutes an offense of the class specified in the 95th Article of War, they may in
general be legally held subject to military jurisdiction and trial. "So a prisoner of war,
though not subject, while held by the enemy, to the discipline of his own army, would,
when exchanged of paroled, be not exempt from liability for such offenses as criminal
acts or injuriuos conduct committed during his captivity against other officers or soldiers
in the same status." (Winthrop's Military Law and Precedents, 2d Edition, pp. 91, 92.)
The rule invoked by counsel, namely, that laws of political nature or affecting political
relations are considered superseded or in abeyance during the military occupation, is
intended for the governing of the civil inhabitants of the occupied territory. It is not
intended for and does not bind the enemies in arms. This is self-evident from the very
nature of things. The paradox of a contrary ruling should readily manifest itself. Under
the petitioner's theory the forces of resistance operating in an occupied territory would
have to abide by the outlawing of their own existence. They would be stripped of the
very life-blood of an army, the right and the ability to maintain order and discipline
within the organization and to try the men guilty of breach thereof.
The surrender by General Wainright of the Fil-American Forces does not profit the
petitioner's who were former members of the Philippine Constabulary any more than
does the rule of war or international law they cite. The fall of Bataan and Corregidor did
not end the war. It did not, legally or otherwise, keep the United States and the
Commonwealth of the Philippines from organizing a new army, regular or irregular, out
of new men and men in the old service who had refused to surrender or who having
surrendered, had decided to carry on the fight through other diverse means and
methods. The fall of Corregidor and Bataan just marked the beginning of the gigantic
preparation for the gigantic drive that was to fight its way to and beyond the Philippines
in fulfillment of General MacArthur's classic promise, "I shall return." The heroic role
which the guerrillas played in that preparation and in the subsequent liberation of the
Philippines is now history.

Independently of their previous connection with the Philippine Army and the Philippine
Constabulary, Captain Francisco and Lieutenant Fortus as well as Major Garcia and
Lieutenant Adeva were subject to military jurisdiction.
The 2d Article of War defines and enumerates the persons subject to military law as
follows:
Art. 2. Persons Subject to Military Law. — The following persons are subject to these
articles and shall be understood as included in the term "any person subject to military
law" or "persons subject to military law," whenever used in these articles:
(a) All officers, members of the Nurse Corps and soldiers belonging to the Regular Force
of the Philippine Army; all reservists, from the dates of their call to active duty and while
on such active duty; all trainees undergoing military instructions; and all other persons
lawfully called, drafted, or order to obey the same;
(b) Cadets, flying cadets, and probationary third lieutenants;
(c) All retainers to the camp and all persons accompanying or serving with the Army of
the Philippines in the field in time of war or when martial law is declared though not
otherwise subject to these articles;
(d) All persons under sentences adjudged by courts-martial.
It is our opinion that the petitioners come within the general application of the clause in
sub-paragraph (a); "and all other persons lawfully called, drafted, or ordered into, or to
duty for training in, the said service, from the dates they are required by the terms of
the call, draft, or order to obey the same." By their acceptance of appointments as
officers in the Bolo Area from the General Headquarters of the 6th Military District, they
became members of the Philippine Army amendable to the Articles of War. The Bolo
Area, as has been seen, was a contigent of the 6th Military District which, as has also
been pointed out, had been recognized by and placed under the operational control of
the United States Army in the Southwest Pacific. The Bolo Area received supplies and
funds for the salaries of its officers and men from the Southwest Pacific Command. As
officers in the Bolo Area and the 6th Military District, the petitioners operated under the
orders of duly established and duly appointed commanders of the United States Army.
The attitude of the enemy toward underground movements did not affect the military
status of guerrillas who had been called into the service of the Philippine Army. If the
invaders refused to look upon guerrillas, without distinctions, as legitimate troops, that
did not stop the guerillas who had been inducted into the service of the Philippine Army
from being component parts thereof, bound to obey military status of guerrillas was to
be judged not by the concept of the army of the country for which they fought.
The constitutionality of the 93d Article of War is assailed. This article ordains "that any
person subject to military law who commits murder in time of was shall suffer death or
imprisonment for life, as the court martial may direct." It is argued that since "no review
is provided by that law to be made by the Supreme Court, irrespective of whether the
punishment is for life imprisonment or death", it violates Article VIII, section 2,
paragraph 4, of the Constitution of the Philippines which provides that "the National
Assembly may not deprive the Supreme Court of its original jurisdiction over all criminal
cases in which the penalty imposed is death or life imprisonment."
We think the petitioners are in error. This error arose from failure to perceive the nature
of courts martial and the sources of the authority for their creation.
Courts martial are agencies of executive character, and one of the authorities "for the
ordering of courts martial has been held to be attached to the constitutional functions of
the President as Commander in Chief, independently of legislation." (Winthrop's Military
Law and Precedents, 2d Edition, p. 49.) Unlike courts of law, they are not a portion of
the judiciary. "The Supreme Court of the United States referring to the provisions of the
Constitution authorizing Congress to provide for the government of the army, excepting
military offenses from the civil jurisdiction, and making the President Commander in
Chief, observes as follows: "These provisions show that Congress has the power to
provide for the trial and punishment of military and naval offenses in the manner then
and now practiced by civilized nations, and that the power to do so is given without any
connection between it and the 3d Article of the United States; indeed that the two
powers are entirely independent of each other."
"Not belonging to the judicial branch of the government, it follows that courts-martial
must pertain to the executive department; and they are in fact simply instrumentalities
of the executive power, provided by Congress for the President as Commander in Chief,
to aid him in properly commanding the army and navy and enforcing discipline therein,
and utilized under his orders or those of his authorized military representatives."
(Winthrop's Military Law and Precedents, 2d Edition, p. 49.) Of equal interest Clode, 2 M.
F., 361, says of these courts in the British law: "It must never be lost sight of that the
only legitimate object of military tribunals is to aid the Crown to maintain the discipline
and government of the Army." (Footnote No. 24, p. 49, Winthrop's Military Law and
Precedents, 2d Edition.)
Our conclusion, therefore, is that the petition has no merit and that it should be
dismissed with costs. It is so ordered.
Moran, C.J., Paras, Feria, Pablo, Hilado, Bengzon, Briones and Padilla, JJ., concur.
Separate Opinions
PERFECTO, J., dissenting:
We agree with the rule that laws of political nature or affecting political relations are
considered in abeyance during enemy military occupation, although we maintain that the
rule must be restricted to laws which are exclusively political in nature. We agree with
the theory that the rule is not intended for and does not bind the enemies in arms, but
we do not agree with the theory that the rule is intended for the civil inhabitants of the
occupied territory without exception. We are of opinion that the rule does not apply to
civil government of the occupied territory. Enemy occupation does not relieve them from
their sworn official duties. Government officers wield powers and enjoy privileges denied
to private citizens. The wielding of powers and enjoyment of privileges impose
corresponding responsibilities, and even dangers that must be faced during emergency.
The petitioners assailed the constitutionally of the 93rd Article of War, providing that
"any person subject to military law who commits murder in time of war shall suffer
death or imprisonment for life, as the court-martial may direct," because no review is
provided by said law to be made by the Supreme Court, irrespective of whether the
punishment is for life imprisonment or death, such omission being a violation of section
2 (4) , Article VIII, of the Constitution of the Philippines.
Petitioners are mistaken. The silence of the law as to the power of the Supreme Court to
review the decisions and proceedings of courts-martial, especially when the penalty
imposed is death or life imprisonment, should not be understood as negating such
power, much more when it is recognized and guaranteed by specific provisions of the
fundamental law. At any rate, any doubt in interpreting the silence of the law must be
resolved in favor of a construction that will make the law constitutional.
Furthermore, it may not be amiss to recall the fact that the National Assembly, in
approving the Articles of War (Commonwealth Act No. 408), had never intended to deny
or diminish the power of the Supreme Court to review, revise, reverse or modify final
judgments and decrees of courts martial created and organized under the Articles of
War. On the contrary, it was clearly understood that the decrees and the decisions of
said courts-martial are subject to review by the Supreme Court. The last Committee
report on the Articles of War was rendered to the National Assembly by its Committee
on Third Reading, commonly known as the "Little Senate," which submitted the bill
printed in final form. As chairman of the committee and in behalf of the same, we
submitted the report recommending the approval of the bill on third reading with the
express statement and understanding that it would not deprive the Supreme Court of its
constitutional revisionary power on final judgments and decrees of courts-martial
proposed to be created, which were and are to be considered as part of the judicial
system, being included in the denomination of inferior courts mentioned in section 1,
Article VIII, of the constitution. With the said statement and understanding, the National
Assembly, without any dissenting vote, approved the Articles of War as recommended
by the Committee on third Reading.
Consequently, petitioners' contention is untenable, the premise upon which they assailed
the constitutionality of the 93rd Article of War being groundless in view of the actuation
of the national Assembly.
The majority appear to concur in petitioners' premise that, by the silence of the Articles
of War, the Supreme Court is deprived of its constitutional power to review final
decisions of courts-martial. The majority even go as far as to justify the constitutionality
of such deprivation on the theory that courts martial belong, not to the judicial branch of
the government, but to the executive department, citing as authority therefor
Winthrop's Military Law and Precedents. The majority are in error.
In our opinion in Yamashita vs. Styer (L-129, 42 Off. Gaz., 664) and in Homma vs. Styer
(L-244), we have shown that this Supreme Court enjoys the power to revise the
actuations and decisions of military commissions, especially if they act without
jurisdiction or violate the law, military commissions being included within the
denomination of inferior courts under the provisions of our Constitution. Courts-martial
are, likely military commissions, inferior courts. The fact that they are military tribunals
does not change their essence as veritable tribunals or courts of justice, as agencies of
the government in the administration of justice. Their functions are essentially judicial.
Except in cases where judicial functions are specifically entrusted by the Constitution to
other agencies — such as impeachment to Congress, legislative electoral contests to the
Electoral Tribunals — all judicial functions are vested in the Supreme Court and in such
inferior courts as may be established by law. Courts-martial are inferior courts
established by law.
The majority's theory is based on an authority which has no bearing or application under
the Constitution of the Philippines. Winthrop's Military Law and Precedents has in mind
the Constitution of the United States of America, the provisions of which regarding the
judicial department are essentially different from those contained in our own
Constitution.
Article III of the Constitution of the United States of America is as follows:
SECTION 1. The Judicial Power of the United States, shall be vested in one Supreme
Court, and in such inferior courts as the Congress may from time to time ordain and
establish. The Judges, both of the Supreme Court and Inferior Courts, shall hold their
offices during good behavior, and shall at stated times, received for their services, a
compensation, which shall not be diminished during their continuance in office.
SEC. 2. The Judicial Power shall extend to all cases, in Law and Equity, arising under this
Constitution, the Laws of the United States, and Treaties made, or which shall be made,
under their authority; — to all cases affecting Ambassadors, other public Ministers and
Consuls; — to all cases of admirality and maritime jurisdiction; — to controversies to
which the United States shall be a party; — to controversies between two or more
States; — between a States and citizens of another State; — between citizens of
another State; — between citizens of different States, — between citizens of the same
State claiming lands under grants of different States, and between a State, or the
citizens thereof, and foreign States, citizens or subjects.
In all cases affecting Ambassadors, other public Ministers and Consuls, and those in
which a State shall be a party, the Supreme Court shall have original jurisdiction. In all
the other cases before mentioned, the Supreme Court shall have appellate jurisdiction,
both as to law and fact, with such exceptions, and under such regulations as the
Congress shall make.
The trial of all crimes, except in cases of impeachment, shall be jury; and such trial shall
be held in the State where the said crimes shall have been committed; but when not
committed within any State, the trial shall be at such place or places as the Congress
may by law have directed.
SEC. 3. Treason against the United States, shall consist only in levying war against
them, or in adhering to their enemies, giving them aid and comfort. No person shall be
convicted of treason unless on the testimony of two witnesses to the same overt act, or
on confession in open court.
The Congress shall have power to declare the punishment of treason, but no attainder of
treason shall work corruption of blood, or forfeiture except during the life of the person
attached.
A comparison of the above provision with that of the Constitution of the Philippines will
readily show that the former does not have the negative provision contained in the latter
to the effect that our Supreme Court may not be deprived of certain specific judicial
functions.
Section 2 of Articles VIII of our Constitution is as follows:
SEC. 2. The Congress shall have the power to define, prescribe, and apportion the
jurisdiction of the various courts, but may not deprive the Supreme Court of its original
jurisdiction over cases affecting ambassadors, other public ministers, and consuls, nor of
its jurisdiction to review, revise, reverse, modify of affirm on appeal, certiorari, or writ of
error, as the law or the rules of court may provide, final judgments and decrees of
inferior courts in —
(1) All cases in which the constitutionality or validity of any treaty, law, ordinance, or
executive order or regulations is in question.
(2) All cases involving the legality of any tax, impost, assessment, or toll, or any penalty
imposed in relation thereto.
(3) All cases in which the jurisdiction of any trial courts is in issue.
(4) All criminal cases in which the penalty imposed is death or life imprisonment.
(5) All cases in which an error or question of law is involved.

It is our considered opinion that the theory maintained in Winthrop's Military Law and
Precedents and in the decisions of the Supreme Court of the United States cited therein
to the effect that the trial and punishment of military and naval offenses by courts-
martial are executive functions because the only legitimate object of military tribunals
"is to aid the Crown to maintain the discipline and government of the Army," as applied
in the Philippine, is basically wrong, being rooted in the English monarchial ideology.
Military tribunals are tribunals whose functions are judicial in character and in nature. No
amount of logodaedaly may change the nature of such functions. The trial and
punishment of offenses, whether civil or military naval or aerial, since time immemorial,
have always been considered as judicial functions. The fact that such trial and
punishment are entrusted to "tribunals or courts-martial" shows the nuclear idea of the
nature of the function. Tribunals and courts are the agencies employed by government
to administer justice.
The very fact that in this case the Supreme Court has given due course to the petition,
required respondents to answer, set the case for hearing and, in fact, heard it, instead
of ordering the outright dismissal of the petition as soon as it was filed, thus following
the same procedure in Reyes vs. Crisologo, (L-54, 41 Off. Gaz., 1096) and in Yamashita
vs. Styer (supra), is a conclusive evidence of the fact of that this Supreme Court has the
jurisdiction and power to review the proceedings and decision of military tribunals, such
as courts-martials, military commissions, and other similar bodies exercising judicial
functions limited to military personnel.
It appearing that petitioners impugning the jurisdiction of the court-martial which has
tried and convicted them, we are of opinion that the petition must be granted in the
sense that the records of the court-martial in question should, be elevated to the
Supreme Court for revision, so that we may decide the question on the court-martial's
jurisdiction and give petitioners the justice they are claiming for.
X-------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------x
G.R. No. 138570 October 10, 2000
BAYAN (Bagong Alyansang Makabayan), a JUNK VFA MOVEMENT, BISHOP
TOMAS MILLAMENA (Iglesia Filipina Independiente), BISHOP ELMER BOLOCAN
(United Church of Christ of the Phil.), DR. REYNALDO LEGASCA, MD, KILUSANG
MAMBUBUKID NG PILIPINAS, KILUSANG MAYO UNO, GABRIELA, PROLABOR,
and the PUBLIC INTEREST LAW CENTER, petitioners,
vs.
EXECUTIVE SECRETARY RONALDO ZAMORA, FOREIGN AFFAIRS SECRETARY
DOMINGO SIAZON, DEFENSE SECRETARY ORLANDO MERCADO, BRIG. GEN.
ALEXANDER AGUIRRE, SENATE PRESIDENT MARCELO FERNAN, SENATOR
FRANKLIN DRILON, SENATOR BLAS OPLE, SENATOR RODOLFO BIAZON, and
SENATOR FRANCISCO TATAD, respondents.
x-----------------------x
G.R. No. 138572 October 10, 2000
PHILIPPINE CONSTITUTION ASSOCIATION, INC.(PHILCONSA), EXEQUIEL B.
GARCIA, AMADOGAT INCIONG, CAMILO L. SABIO, AND RAMON A. GONZALES,
petitioners, vs.
HON. RONALDO B. ZAMORA, as Executive Secretary, HON. ORLANDO MERCADO,
as Secretary of National Defense, and HON. DOMINGO L. SIAZON, JR., as
Secretary of Foreign Affairs, respondents.
x-----------------------x
G.R. No. 138587 October 10, 2000
TEOFISTO T. GUINGONA, JR., RAUL S. ROCO, and SERGIO R. OSMEÑA III,
petitioners, vs.
JOSEPH E. ESTRADA, RONALDO B. ZAMORA, DOMINGO L. SIAZON, JR.,
ORLANDO B. MERCADO, MARCELO B. FERNAN, FRANKLIN M. DRILON, BLAS F.
OPLE and RODOLFO G. BIAZON, respondents.
x-----------------------x
G.R. No. 138680 October 10, 2000
INTEGRATED BAR OF THE PHILIPPINES, Represented by its National President,
Jose Aguila Grapilon, petitioners, vs.
JOSEPH EJERCITO ESTRADA, in his capacity as President, Republic of the
Philippines, and HON. DOMINGO SIAZON, in his capacity as Secretary of
Foreign Affairs, respondents.
x-----------------------x
G.R. No. 138698 October 10, 2000
JOVITO R. SALONGA, WIGBERTO TAÑADA, ZENAIDA QUEZON-AVENCEÑA,
ROLANDO SIMBULAN, PABLITO V. SANIDAD, MA. SOCORRO I. DIOKNO,
AGAPITO A. AQUINO, JOKER P. ARROYO, FRANCISCO C. RIVERA JR., RENE A.V.
SAGUISAG, KILOSBAYAN, MOVEMENT OF ATTORNEYS FOR BROTHERHOOD,
INTEGRITY AND NATIONALISM, INC. (MABINI), petitioners, vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF FOREIGN AFFAIRS, THE
SECRETARY OF NATIONAL DEFENSE, SENATE PRESIDENT MARCELO B. FERNAN,
SENATOR BLAS F. OPLE, SENATOR RODOLFO G. BIAZON, AND ALL OTHER
PERSONS ACTING THEIR CONTROL, SUPERVISION, DIRECTION, AND
INSTRUCTION IN RELATION TO THE VISITING FORCES AGREEMENT (VFA),
respondents.
DECISION
BUENA, J.:
Confronting the Court for resolution in the instant consolidated petitions for certiorari
and prohibition are issues relating to, and borne by, an agreement forged in the turn of
the last century between the Republic of the Philippines and the United States of
America -the Visiting Forces Agreement.
The antecedents unfold.
On March 14, 1947, the Philippines and the United States of America forged a Military
Bases Agreement which formalized, among others, the use of installations in the
Philippine territory by United States military personnel. To further strengthen their
defense and security relationship, the Philippines and the United States entered into a
Mutual Defense Treaty on August 30, 1951. Under the treaty, the parties agreed to
respond to any external armed attack on their territory, armed forces, public vessels,
and aircraft.
In view of the impending expiration of the RP-US Military Bases Agreement in 1991, the
Philippines and the United States negotiated for a possible extension of the military
bases agreement. On September 16, 1991, the Philippine Senate rejected the proposed
RP-US Treaty of Friendship, Cooperation and Security which, in effect, would have
extended the presence of US military bases in the Philippines.2 With the expiration of
the RP-US Military Bases Agreement, the periodic military exercises conducted between
the two countries were held in abeyance. Notwithstanding, the defense and security
relationship between the Philippines and the United States of America continued
pursuant to the Mutual Defense Treaty.
On July 18, 1997, the United States panel, headed by US Defense Deputy Assistant
Secretary for Asia Pacific Kurt Campbell, met with the Philippine panel, headed by
Foreign Affairs Undersecretary Rodolfo Severino Jr., to exchange notes on "the
complementing strategic interests of the United States and the Philippines in the Asia-
Pacific region." Both sides discussed, among other things, the possible elements of the
Visiting Forces Agreement (VFA for brevity). Negotiations by both panels on the VFA led
to a consolidated draft text, which in turn resulted to a final series of conferences and
negotiations3 that culminated in Manila on January 12 and 13, 1998. Thereafter, then
President Fidel V. Ramos approved the VFA, which was respectively signed by public
respondent Secretary Siazon and Unites States Ambassador Thomas Hubbard on
February 10, 1998.
On October 5, 1998, President Joseph E. Estrada, through respondent Secretary of
Foreign Affairs, ratified the VFA.
On October 6, 1998, the President, acting through respondent Executive Secretary
Ronaldo Zamora, officially transmitted to the Senate of the Philippines, the Instrument
of Ratification, the letter of the President6 and the VFA, for concurrence pursuant to
Section 21, Article VII of the 1987 Constitution. The Senate, in turn, referred the VFA to
its Committee on Foreign Relations, chaired by Senator Blas F. Ople, and its Committee
on National Defense and Security, chaired by Senator Rodolfo G. Biazon, for their joint
consideration and recommendation. Thereafter, joint public hearings were held by the
two Committees.
On May 3, 1999, the Committees submitted Proposed Senate Resolution No. 443
recommending the concurrence of the Senate to the VFA and the creation of a
Legislative Oversight Committee to oversee its implementation. Debates then ensued.
On May 27, 1999, Proposed Senate Resolution No. 443 was approved by the Senate, by
a two-thirds (2/3) vote of its members. Senate Resolution No. 443 was then re-
numbered as Senate Resolution No. 18.
On June 1, 1999, the VFA officially entered into force after an Exchange of Notes
between respondent Secretary Siazon and United States Ambassador Hubbard.
The VFA, which consists of a Preamble and nine (9) Articles, provides for the mechanism
for regulating the circumstances and conditions under which US Armed Forces and
defense personnel may be present in the Philippines, and is quoted in its full text,
hereunder:
"Article I
Definitions
"As used in this Agreement, ‘United States personnel’ means United States military and
civilian personnel temporarily in the Philippines in connection with activities approved by
the Philippine Government.
"Within this definition:
"1. The term ‘military personnel’ refers to military members of the United States Army,
Navy, Marine Corps, Air Force, and Coast Guard.
"2. The term ‘civilian personnel’ refers to individuals who are neither nationals of, nor
ordinary residents in the Philippines and who are employed by the United States armed
forces or who are accompanying the United States armed forces, such as employees of
the American Red Cross and the United Services Organization.
"Article II
Respect for Law
"It is the duty of the United States personnel to respect the laws of the Republic of the
Philippines and to abstain from any activity inconsistent with the spirit of this
agreement, and, in particular, from any political activity in the Philippines. The
Government of the United States shall take all measures within its authority to ensure
that this is done.
"Article III
Entry and Departure
"1. The Government of the Philippines shall facilitate the admission of United States
personnel and their departure from the Philippines in connection with activities covered
by this agreement.
"2. United States military personnel shall be exempt from passport and visa regulations
upon entering and departing the Philippines.
"3. The following documents only, which shall be presented on demand, shall be
required in respect of United States military personnel who enter the Philippines:
"(a) personal identity card issued by the appropriate United States authority showing full
name, date of birth, rank or grade and service number (if any), branch of service and
photograph;
"(b) individual or collective document issued by the appropriate United States authority,
authorizing the travel or visit and identifying the individual or group as United States
military personnel; and
"(c) the commanding officer of a military aircraft or vessel shall present a declaration of
health, and when required by the cognizant representative of the Government of the
Philippines, shall conduct a quarantine inspection and will certify that the aircraft or
vessel is free from quarantinable diseases. Any quarantine inspection of United States
aircraft or United States vessels or cargoes thereon shall be conducted by the United
States commanding officer in accordance with the international health regulations as
promulgated by the World Health Organization, and mutually agreed procedures.
"4. United States civilian personnel shall be exempt from visa requirements but shall
present, upon demand, valid passports upon entry and departure of the Philippines.
"5. If the Government of the Philippines has requested the removal of any United States
personnel from its territory, the United States authorities shall be responsible for
receiving the person concerned within its own territory or otherwise disposing of said
person outside of the Philippines.
"Article IV
Driving and Vehicle Registration
"1. Philippine authorities shall accept as valid, without test or fee, a driving permit or
license issued by the appropriate United States authority to United States personnel for
the operation of military or official vehicles.
"2. Vehicles owned by the Government of the United States need not be registered, but
shall have appropriate markings.
"Article V
Criminal Jurisdiction
"1. Subject to the provisions of this article:
(a) Philippine authorities shall have jurisdiction over United States personnel with
respect to offenses committed within the Philippines and punishable under the law of the
Philippines.
(b) United States military authorities shall have the right to exercise within the
Philippines all criminal and disciplinary jurisdiction conferred on them by the military law
of the United States over United States personnel in the Philippines.
"2. (a) Philippine authorities exercise exclusive jurisdiction over United States personnel
with respect to offenses, including offenses relating to the security of the Philippines,
punishable under the laws of the Philippines, but not under the laws of the United
States.
(b) United States authorities exercise exclusive jurisdiction over United States personnel
with respect to offenses, including offenses relating to the security of the United States,
punishable under the laws of the United States, but not under the laws of the
Philippines.
(c) For the purposes of this paragraph and paragraph 3 of this article, an offense
relating to security means:
(1) treason;
(2) sabotage, espionage or violation of any law relating to national defense.
"3. In cases where the right to exercise jurisdiction is concurrent, the following rules
shall apply:
(a) Philippine authorities shall have the primary right to exercise jurisdiction over all
offenses committed by United States personnel, except in cases provided for in
paragraphs 1(b), 2 (b), and 3 (b) of this Article.
(b) United States military authorities shall have the primary right to exercise jurisdiction
over United States personnel subject to the military law of the United States in relation
to.
(1) offenses solely against the property or security of the United States or offenses
solely against the property or person of United States personnel; and
(2) offenses arising out of any act or omission done in performance of official duty.
(c) The authorities of either government may request the authorities of the other
government to waive their primary right to exercise jurisdiction in a particular case.
(d) Recognizing the responsibility of the United States military authorities to maintain
good order and discipline among their forces, Philippine authorities will, upon request by
the United States, waive their primary right to exercise jurisdiction except in cases of
particular importance to the Philippines. If the Government of the Philippines determines
that the case is of particular importance, it shall communicate such determination to the
United States authorities within twenty (20) days after the Philippine authorities receive
the United States request.
(e) When the United States military commander determines that an offense charged by
authorities of the Philippines against United states personnel arises out of an act or
omission done in the performance of official duty, the commander will issue a certificate
setting forth such determination. This certificate will be transmitted to the appropriate
authorities of the Philippines and will constitute sufficient proof of performance of official
duty for the purposes of paragraph 3(b)(2) of this Article. In those cases where the
Government of the Philippines believes the circumstances of the case require a review of
the duty certificate, United States military authorities and Philippine authorities shall
consult immediately. Philippine authorities at the highest levels may also present any
information bearing on its validity. United States military authorities shall take full
account of the Philippine position. Where appropriate, United States military authorities
will take disciplinary or other action against offenders in official duty cases, and notify
the Government of the Philippines of the actions taken.
(f) If the government having the primary right does not exercise jurisdiction, it shall
notify the authorities of the other government as soon as possible.
(g) The authorities of the Philippines and the United States shall notify each other of the
disposition of all cases in which both the authorities of the Philippines and the United
States have the right to exercise jurisdiction.
"4. Within the scope of their legal competence, the authorities of the Philippines and
United States shall assist each other in the arrest of United States personnel in the
Philippines and in handling them over to authorities who are to exercise jurisdiction in
accordance with the provisions of this article.
"5. United States military authorities shall promptly notify Philippine authorities of the
arrest or detention of United States personnel who are subject of Philippine primary or
exclusive jurisdiction. Philippine authorities shall promptly notify United States military
authorities of the arrest or detention of any United States personnel.
"6. The custody of any United States personnel over whom the Philippines is to exercise
jurisdiction shall immediately reside with United States military authorities, if they so
request, from the commission of the offense until completion of all judicial proceedings.
United States military authorities shall, upon formal notification by the Philippine
authorities and without delay, make such personnel available to those authorities in time
for any investigative or judicial proceedings relating to the offense with which the person
has been charged in extraordinary cases, the Philippine Government shall present its
position to the United States Government regarding custody, which the United States
Government shall take into full account. In the event Philippine judicial proceedings are
not completed within one year, the United States shall be relieved of any obligations
under this paragraph. The one-year period will not include the time necessary to appeal.
Also, the one-year period will not include any time during which scheduled trial
procedures are delayed because United States authorities, after timely notification by
Philippine authorities to arrange for the presence of the accused, fail to do so.
"7. Within the scope of their legal authority, United States and Philippine authorities
shall assist each other in the carrying out of all necessary investigation into offenses and
shall cooperate in providing for the attendance of witnesses and in the collection and
production of evidence, including seizure and, in proper cases, the delivery of objects
connected with an offense.
"8. When United States personnel have been tried in accordance with the provisions of
this Article and have been acquitted or have been convicted and are serving, or have
served their sentence, or have had their sentence remitted or suspended, or have been
pardoned, they may not be tried again for the same offense in the Philippines. Nothing
in this paragraph, however, shall prevent United States military authorities from trying
United States personnel for any violation of rules of discipline arising from the act or
omission which constituted an offense for which they were tried by Philippine authorities.
"9. When United States personnel are detained, taken into custody, or prosecuted by
Philippine authorities, they shall be accorded all procedural safeguards established by
the law of the Philippines. At the minimum, United States personnel shall be entitled:
(a) To a prompt and speedy trial;
(b) To be informed in advance of trial of the specific charge or charges made against
them and to have reasonable time to prepare a defense;
(c) To be confronted with witnesses against them and to cross examine such witnesses;
(d) To present evidence in their defense and to have compulsory process for obtaining
witnesses;
(e) To have free and assisted legal representation of their own choice on the same basis
as nationals of the Philippines;
(f) To have the service of a competent interpreter; and
(g) To communicate promptly with and to be visited regularly by United States
authorities, and to have such authorities present at all judicial proceedings. These
proceedings shall be public unless the court, in accordance with Philippine laws, excludes
persons who have no role in the proceedings.
"10. The confinement or detention by Philippine authorities of United States personnel
shall be carried out in facilities agreed on by appropriate Philippine and United States
authorities. United States Personnel serving sentences in the Philippines shall have the
right to visits and material assistance.
"11. United States personnel shall be subject to trial only in Philippine courts of ordinary
jurisdiction, and shall not be subject to the jurisdiction of Philippine military or religious
courts.
"Article VI
Claims
"1. Except for contractual arrangements, including United States foreign military sales
letters of offer and acceptance and leases of military equipment, both governments
waive any and all claims against each other for damage, loss or destruction to property
of each other’s armed forces or for death or injury to their military and civilian personnel
arising from activities to which this agreement applies.
"2. For claims against the United States, other than contractual claims and those to
which paragraph 1 applies, the United States Government, in accordance with United
States law regarding foreign claims, will pay just and reasonable compensation in
settlement of meritorious claims for damage, loss, personal injury or death, caused by
acts or omissions of United States personnel, or otherwise incident to the non-combat
activities of the United States forces.
"Article VII
Importation and Exportation
"1. United States Government equipment, materials, supplies, and other property
imported into or acquired in the Philippines by or on behalf of the United States armed
forces in connection with activities to which this agreement applies, shall be free of all
Philippine duties, taxes and other similar charges. Title to such property shall remain
with the United States, which may remove such property from the Philippines at any
time, free from export duties, taxes, and other similar charges. The exemptions
provided in this paragraph shall also extend to any duty, tax, or other similar charges
which would otherwise be assessed upon such property after importation into, or
acquisition within, the Philippines. Such property may be removed from the Philippines,
or disposed of therein, provided that disposition of such property in the Philippines to
persons or entities not entitled to exemption from applicable taxes and duties shall be
subject to payment of such taxes, and duties and prior approval of the Philippine
Government.
"2. Reasonable quantities of personal baggage, personal effects, and other property for
the personal use of United States personnel may be imported into and used in the
Philippines free of all duties, taxes and other similar charges during the period of their
temporary stay in the Philippines. Transfers to persons or entities in the Philippines not
entitled to import privileges may only be made upon prior approval of the appropriate
Philippine authorities including payment by the recipient of applicable duties and taxes
imposed in accordance with the laws of the Philippines. The exportation of such property
and of property acquired in the Philippines by United States personnel shall be free of all
Philippine duties, taxes, and other similar charges.
"Article VIII
Movement of Vessels and Aircraft
"1. Aircraft operated by or for the United States armed forces may enter the Philippines
upon approval of the Government of the Philippines in accordance with procedures
stipulated in implementing arrangements.
"2. Vessels operated by or for the United States armed forces may enter the Philippines
upon approval of the Government of the Philippines. The movement of vessels shall be
in accordance with international custom and practice governing such vessels, and such
agreed implementing arrangements as necessary.
"3. Vehicles, vessels, and aircraft operated by or for the United States armed forces shall
not be subject to the payment of landing or port fees, navigation or over flight charges,
or tolls or other use charges, including light and harbor dues, while in the Philippines.
Aircraft operated by or for the United States armed forces shall observe local air traffic
control regulations while in the Philippines. Vessels owned or operated by the United
States solely on United States Government non-commercial service shall not be subject
to compulsory pilotage at Philippine ports.
"Article IX
Duration and Termination
"This agreement shall enter into force on the date on which the parties have notified
each other in writing through the diplomatic channel that they have completed their
constitutional requirements for entry into force. This agreement shall remain in force
until the expiration of 180 days from the date on which either party gives the other
party notice in writing that it desires to terminate the agreement."

Via these consolidated petitions for certiorari and prohibition, petitioners - as legislators,
non-governmental organizations, citizens and taxpayers - assail the constitutionality of
the VFA and impute to herein respondents grave abuse of discretion in ratifying the
agreement.
We have simplified the issues raised by the petitioners into the following:
I
Do petitioners have legal standing as concerned citizens, taxpayers, or legislators to
question the constitutionality of the VFA?
II
Is the VFA governed by the provisions of Section 21, Article VII or of Section 25, Article
XVIII of the Constitution?
III
Does the VFA constitute an abdication of Philippine sovereignty?
a. Are Philippine courts deprived of their jurisdiction to hear and try offenses committed
by US military personnel?
b. Is the Supreme Court deprived of its jurisdiction over offenses punishable by reclusion
perpetua or higher?
IV
Does the VFA violate:
a. the equal protection clause under Section 1, Article III of the Constitution?
b. the Prohibition against nuclear weapons under Article II, Section 8?
c. Section 28 (4), Article VI of the Constitution granting the exemption from taxes and
duties for the equipment, materials supplies and other properties imported into or
acquired in the Philippines by, or on behalf, of the US Armed Forces?
LOCUS STANDI
At the outset, respondents challenge petitioner’s standing to sue, on the ground that the
latter have not shown any interest in the case, and that petitioners failed to substantiate
that they have sustained, or will sustain direct injury as a result of the operation of the
VFA.12 Petitioners, on the other hand, counter that the validity or invalidity of the VFA is
a matter of transcendental importance which justifies their standing.
A party bringing a suit challenging the constitutionality of a law, act, or statute must
show "not only that the law is invalid, but also that he has sustained or in is in
immediate, or imminent danger of sustaining some direct injury as a result of its
enforcement, and not merely that he suffers thereby in some indefinite way." He must
show that he has been, or is about to be, denied some right or privilege to which he is
lawfully entitled, or that he is about to be subjected to some burdens or penalties by
reason of the statute complained of.
In the case before us, petitioners failed to show, to the satisfaction of this Court, that
they have sustained, or are in danger of sustaining any direct injury as a result of the
enforcement of the VFA. As taxpayers, petitioners have not established that the VFA
involves the exercise by Congress of its taxing or spending powers. On this point, it
bears stressing that a taxpayer’s suit refers to a case where the act complained of
directly involves the illegal disbursement of public funds derived from taxation. Thus, in
Bugnay Const. & Development Corp. vs. Laron , we held:
"x x x it is exigent that the taxpayer-plaintiff sufficiently show that he would be
benefited or injured by the judgment or entitled to the avails of the suit as a real party
in interest. Before he can invoke the power of judicial review, he must specifically prove
that he has sufficient interest in preventing the illegal expenditure of money raised by
taxation and that he will sustain a direct injury as a result of the enforcement of the
questioned statute or contract. It is not sufficient that he has merely a general interest
common to all members of the public."
Clearly, inasmuch as no public funds raised by taxation are involved in this case, and in
the absence of any allegation by petitioners that public funds are being misspent or
illegally expended, petitioners, as taxpayers, have no legal standing to assail the legality
of the VFA.
Similarly, Representatives Wigberto Tañada, Agapito Aquino and Joker Arroyo, as
petitioners-legislators, do not possess the requisite locus standi to maintain the present
suit. While this Court, in Phil. Constitution Association vs. Hon. Salvador Enriquez,18
sustained the legal standing of a member of the Senate and the House of
Representatives to question the validity of a presidential veto or a condition imposed on
an item in an appropriation bull, we cannot, at this instance, similarly uphold petitioners’
standing as members of Congress, in the absence of a clear showing of any direct injury
to their person or to the institution to which they belong.
Beyond this, the allegations of impairment of legislative power, such as the delegation of
the power of Congress to grant tax exemptions, are more apparent than real. While it
may be true that petitioners pointed to provisions of the VFA which allegedly impair their
legislative powers, petitioners failed however to sufficiently show that they have in fact
suffered direct injury.
In the same vein, petitioner Integrated Bar of the Philippines (IBP) is stripped of
standing in these cases. As aptly observed by the Solicitor General, the IBP lacks the
legal capacity to bring this suit in the absence of a board resolution from its Board of
Governors authorizing its National President to commence the present action.
Notwithstanding, in view of the paramount importance and the constitutional
significance of the issues raised in the petitions, this Court, in the exercise of its sound
discretion, brushes aside the procedural barrier and takes cognizance of the petitions, as
we have done in the early Emergency Powers Cases, where we had occasion to rule:
"x x x ordinary citizens and taxpayers were allowed to question the constitutionality of
several executive orders issued by President Quirino although they were involving only
an indirect and general interest shared in common with the public. The Court dismissed
the objection that they were not proper parties and ruled that ‘transcendental
importance to the public of these cases demands that they be settled promptly and
definitely, brushing aside, if we must, technicalities of procedure.’ We have since then
applied the exception in many other cases. (Association of Small Landowners in the
Philippines, Inc. v. Sec. of Agrarian Reform, 175 SCRA 343)." (Underscoring Supplied)
This principle was reiterated in the subsequent cases of Gonzales vs. COMELEC,21 Daza
vs. Singson,22 and Basco vs. Phil. Amusement and Gaming Corporation, where we
emphatically held:

"Considering however the importance to the public of the case at bar, and in keeping
with the Court’s duty, under the 1987 Constitution, to determine whether or not the
other branches of the government have kept themselves within the limits of the
Constitution and the laws and that they have not abused the discretion given to them,
the Court has brushed aside technicalities of procedure and has taken cognizance of this
petition. x x x"
Again, in the more recent case of Kilosbayan vs. Guingona, Jr.,24 thisCourt ruled that in
cases of transcendental importance, the Court may relax the standing requirements and
allow a suit to prosper even where there is no direct injury to the party claiming the
right of judicial review.
Although courts generally avoid having to decide a constitutional question based on the
doctrine of separation of powers, which enjoins upon the departments of the
government a becoming respect for each others’ acts, this Court nevertheless resolves
to take cognizance of the instant petitions.
APPLICABLE CONSTITUTIONAL PROVISION
One focal point of inquiry in this controversy is the determination of which provision of
the Constitution applies, with regard to the exercise by the senate of its constitutional
power to concur with the VFA. Petitioners argue that Section 25, Article XVIII is
applicable considering that the VFA has for its subject the presence of foreign military
troops in the Philippines. Respondents, on the contrary, maintain that Section 21, Article
VII should apply inasmuch as the VFA is not a basing arrangement but an agreement
which involves merely the temporary visits of United States personnel engaged in joint
military exercises.
The 1987 Philippine Constitution contains two provisions requiring the concurrence of
the Senate on treaties or international agreements. Section 21, Article VII, which herein
respondents invoke, reads:
"No treaty or international agreement shall be valid and effective unless concurred in by
at least two-thirds of all the Members of the Senate."
Section 25, Article XVIII, provides:
"After the expiration in 1991 of the Agreement between the Republic of the Philippines
and the United States of America concerning Military Bases, foreign military bases,
troops, or facilities shall not be allowed in the Philippines except under a treaty duly
concurred in by the senate and, when the Congress so requires, ratified by a majority of
the votes cast by the people in a national referendum held for that purpose, and
recognized as a treaty by the other contracting State."
Section 21, Article VII deals with treatise or international agreements in general, in
which case, the concurrence of at least two-thirds (2/3) of all the Members of the
Senate is required to make the subject treaty, or international agreement, valid and
binding on the part of the Philippines. This provision lays down the general rule on
treatise or international agreements and applies to any form of treaty with a wide
variety of subject matter, such as, but not limited to, extradition or tax treatise or those
economic in nature. All treaties or international agreements entered into by the
Philippines, regardless of subject matter, coverage, or particular designation or
appellation, requires the concurrence of the Senate to be valid and effective.
In contrast, Section 25, Article XVIII is a special provision that applies to treaties which
involve the presence of foreign military bases, troops or facilities in the Philippines.
Under this provision, the concurrence of the Senate is only one of the requisites to
render compliance with the constitutional requirements and to consider the agreement
binding on the Philippines. Section 25, Article XVIII further requires that "foreign military
bases, troops, or facilities" may be allowed in the Philippines only by virtue of a treaty
duly concurred in by the Senate, ratified by a majority of the votes cast in a national
referendum held for that purpose if so required by Congress, and recognized as such by
the other contracting state.
It is our considered view that both constitutional provisions, far from contradicting each
other, actually share some common ground. These constitutional provisions both
embody phrases in the negative and thus, are deemed prohibitory in mandate and
character. In particular, Section 21 opens with the clause "No treaty x x x," and Section
25 contains the phrase "shall not be allowed." Additionally, in both instances, the
concurrence of the Senate is indispensable to render the treaty or international
agreement valid and effective.
To our mind, the fact that the President referred the VFA to the Senate under Section
21, Article VII, and that the Senate extended its concurrence under the same provision,
is immaterial. For in either case, whether under Section 21, Article VII or Section 25,
Article XVIII, the fundamental law is crystalline that the concurrence of the Senate is
mandatory to comply with the strict constitutional requirements.
On the whole, the VFA is an agreement which defines the treatment of United States
troops and personnel visiting the Philippines. It provides for the guidelines to govern
such visits of military personnel, and further defines the rights of the United States and
the Philippine government in the matter of criminal jurisdiction, movement of vessel and
aircraft, importation and exportation of equipment, materials and supplies.
Undoubtedly, Section 25, Article XVIII, which specifically deals with treaties involving
foreign military bases, troops, or facilities, should apply in the instant case. To a certain
extent and in a limited sense, however, the provisions of section 21, Article VII will find
applicability with regard to the issue and for the sole purpose of determining the number
of votes required to obtain the valid concurrence of the Senate, as will be further
discussed hereunder.
It is a finely-imbedded principle in statutory construction that a special provision or law
prevails over a general one. Lex specialis derogat generali. Thus, where there is in the
same statute a particular enactment and also a general one which, in its most
comprehensive sense, would include what is embraced in the former, the particular
enactment must be operative, and the general enactment must be taken to affect only
such cases within its general language which are not within the provision of the
particular enactment.
In Leveriza vs. Intermediate Appellate Court, we enunciated:
"x x x that another basic principle of statutory construction mandates that general
legislation must give way to a special legislation on the same subject, and generally be
so interpreted as to embrace only cases in which the special provisions are not
applicable (Sto. Domingo vs. de los Angeles, 96 SCRA 139), that a specific statute
prevails over a general statute (De Jesus vs. People, 120 SCRA 760) and that where two
statutes are of equal theoretical application to a particular case, the one designed
therefor specially should prevail (Wil Wilhensen Inc. vs. Baluyot, 83 SCRA 38)."

Moreover, it is specious to argue that Section 25, Article XVIII is inapplicable to mere
transient agreements for the reason that there is no permanent placing of structure for
the establishment of a military base. On this score, the Constitution makes no distinction
between "transient’ and "permanent". Certainly, we find nothing in Section 25, Article
XVIII that requires foreign troops or facilities to be stationed or placed permanently in
the Philippines.
It is a rudiment in legal hermenuetics that when no distinction is made by law, the Court
should not distinguish- Ubi lex non distinguit nec nos distinguire debemos.
In like manner, we do not subscribe to the argument that Section 25, Article XVIII is not
controlling since no foreign military bases, but merely foreign troops and facilities, are
involved in the VFA. Notably, a perusal of said constitutional provision reveals that the
proscription covers "foreign military bases, troops, or facilities." Stated differently, this
prohibition is not limited to the entry of troops and facilities without any foreign bases
being established. The clause does not refer to "foreign military bases, troops, or
facilities" collectively but treats them as separate and independent subjects. The use of
comma and the disjunctive word "or" clearly signifies disassociation and independence of
one thing from the others included in the enumeration,28 such that, the provision
contemplates three different situations - a military treaty the subject of which could be
either (a) foreign bases, (b) foreign troops, or (c) foreign facilities - any of the three
standing alone places it under the coverage of Section 25, Article XVIII.
To this end, the intention of the framers of the Charter, as manifested during the
deliberations of the 1986 Constitutional Commission, is consistent with this
interpretation:
"MR. MAAMBONG. I just want to address a question or two to Commissioner Bernas.
This formulation speaks of three things: foreign military bases, troops or facilities. My
first question is: If the country does enter into such kind of a treaty, must it cover the
three-bases, troops or facilities-or could the treaty entered into cover only one or two?
FR. BERNAS. Definitely, it can cover only one. Whether it covers only one or it covers
three, the requirement will be the same.
MR. MAAMBONG. In other words, the Philippine government can enter into a treaty
covering not bases but merely troops?
FR. BERNAS. Yes.
MR. MAAMBONG. I cannot find any reason why the government can enter into a treaty
covering only troops.
FR. BERNAS. Why not? Probably if we stretch our imagination a little bit more, we will
find some. We just want to cover everything." (Underscoring Supplied)
Moreover, military bases established within the territory of another state is no longer
viable because of the alternatives offered by new means and weapons of warfare such
as nuclear weapons, guided missiles as well as huge sea vessels that can stay afloat in
the sea even for months and years without returning to their home country. These
military warships are actually used as substitutes for a land-home base not only of
military aircraft but also of military personnel and facilities. Besides, vessels are mobile
as compared to a land-based military headquarters.
At this juncture, we shall then resolve the issue of whether or not the requirements of
Section 25 were complied with when the Senate gave its concurrence to the VFA.
Section 25, Article XVIII disallows foreign military bases, troops, or facilities in the
country, unless the following conditions are sufficiently met, viz: (a) it must be under a
treaty; (b) the treaty must be duly concurred in by the Senate and, when so required by
congress, ratified by a majority of the votes cast by the people in a national referendum;
and (c) recognized as a treaty by the other contracting state.
There is no dispute as to the presence of the first two requisites in the case of the VFA.
The concurrence handed by the Senate through Resolution No. 18 is in accordance with
the provisions of the Constitution, whether under the general requirement in Section 21,
Article VII, or the specific mandate mentioned in Section 25, Article XVIII, the provision
in the latter article requiring ratification by a majority of the votes cast in a national
referendum being unnecessary since Congress has not required it.
As to the matter of voting, Section 21, Article VII particularly requires that a treaty or
international agreement, to be valid and effective, must be concurred in by at least two-
thirds of all the members of the Senate. On the other hand, Section 25, Article XVIII
simply provides that the treaty be "duly concurred in by the Senate."
Applying the foregoing constitutional provisions, a two-thirds vote of all the members of
the Senate is clearly required so that the concurrence contemplated by law may be
validly obtained and deemed present. While it is true that Section 25, Article XVIII
requires, among other things, that the treaty-the VFA, in the instant case-be "duly
concurred in by the Senate," it is very true however that said provision must be related
and viewed in light of the clear mandate embodied in Section 21, Article VII, which in
more specific terms, requires that the concurrence of a treaty, or international
agreement, be made by a two -thirds vote of all the members of the Senate. Indeed,
Section 25, Article XVIII must not be treated in isolation to section 21, Article, VII.
As noted, the "concurrence requirement" under Section 25, Article XVIII must be
construed in relation to the provisions of Section 21, Article VII. In a more particular
language, the concurrence of the Senate contemplated under Section 25, Article XVIII
means that at least two-thirds of all the members of the Senate favorably vote to concur
with the treaty-the VFA in the instant case.
Under these circumstances, the charter provides that the Senate shall be composed of
twenty-four (24) Senators.30 Without a tinge of doubt, two-thirds (2/3) of this figure, or
not less than sixteen (16) members, favorably acting on the proposal is an
unquestionable compliance with the requisite number of votes mentioned in Section 21
of Article VII. The fact that there were actually twenty-three (23) incumbent Senators at
the time the voting was made, will not alter in any significant way the circumstance that
more than two-thirds of the members of the Senate concurred with the proposed VFA,
even if the two-thirds vote requirement is based on this figure of actual members (23).
In this regard, the fundamental law is clear that two-thirds of the 24 Senators, or at
least 16 favorable votes, suffice so as to render compliance with the strict constitutional
mandate of giving concurrence to the subject treaty.
Having resolved that the first two requisites prescribed in Section 25, Article XVIII are
present, we shall now pass upon and delve on the requirement that the VFA should be
recognized as a treaty by the United States of America.
Petitioners content that the phrase "recognized as a treaty," embodied in section 25,
Article XVIII, means that the VFA should have the advice and consent of the United
States Senate pursuant to its own constitutional process, and that it should not be
considered merely an executive agreement by the United States.

In opposition, respondents argue that the letter of United States Ambassador Hubbard
stating that the VFA is binding on the United States Government is conclusive, on the
point that the VFA is recognized as a treaty by the United States of America. According
to respondents, the VFA, to be binding, must only be accepted as a treaty by the United
States.
This Court is of the firm view that the phrase "recognized as a treaty" means that the
other contracting party accepts or acknowledges the agreement as a treaty.32 To
require the other contracting state, the United States of America in this case, to submit
the VFA to the United States Senate for concurrence pursuant to its Constitution, is to
accord strict meaning to the phrase.
Well-entrenched is the principle that the words used in the Constitution are to be given
their ordinary meaning except where technical terms are employed, in which case the
significance thus attached to them prevails. Its language should be understood in the
sense they have in common use.
Moreover, it is inconsequential whether the United States treats the VFA only as an
executive agreement because, under international law, an executive agreement is as
binding as a treaty.35 To be sure, as long as the VFA possesses the elements of an
agreement under international law, the said agreement is to be taken equally as a
treaty.
A treaty, as defined by the Vienna Convention on the Law of Treaties, is "an
international instrument concluded between States in written form and governed by
international law, whether embodied in a single instrument or in two or more related
instruments, and whatever its particular designation."36 There are many other terms
used for a treaty or international agreement, some of which are: act, protocol,
agreement, compromis d’ arbitrage, concordat, convention, declaration, exchange of
notes, pact, statute, charter and modus vivendi. All writers, from Hugo Grotius onward,
have pointed out that the names or titles of international agreements included under the
general term treaty have little or no legal significance. Certain terms are useful, but they
furnish little more than mere description.
Article 2(2) of the Vienna Convention provides that "the provisions of paragraph 1
regarding the use of terms in the present Convention are without prejudice to the use of
those terms, or to the meanings which may be given to them in the internal law of the
State."
Thus, in international law, there is no difference between treaties and executive
agreements in their binding effect upon states concerned, as long as the negotiating
functionaries have remained within their powers. International law continues to make no
distinction between treaties and executive agreements: they are equally binding
obligations upon nations.
In our jurisdiction, we have recognized the binding effect of executive agreements even
without the concurrence of the Senate or Congress. In Commissioner of Customs vs.
Eastern Sea Trading, we had occasion to pronounce:
"x x x the right of the Executive to enter into binding agreements without the necessity
of subsequent congressional approval has been confirmed by long usage. From the
earliest days of our history we have entered into executive agreements covering such
subjects as commercial and consular relations, most-favored-nation rights, patent
rights, trademark and copyright protection, postal and navigation arrangements and the
settlement of claims. The validity of these has never been seriously questioned by our
courts.
"x x x x x x x x x
"Furthermore, the United States Supreme Court has expressly recognized the validity
and constitutionality of executive agreements entered into without Senate approval. (39
Columbia Law Review, pp. 753-754) (See, also, U.S. vs. Curtis Wright Export
Corporation, 299 U.S. 304, 81 L. ed. 255; U.S. vs. Belmont, 301 U.S. 324, 81 L. ed.
1134; U.S. vs. Pink, 315 U.S. 203, 86 L. ed. 796; Ozanic vs. U.S. 188 F. 2d. 288; Yale
Law Journal, Vol. 15 pp. 1905-1906; California Law Review, Vol. 25, pp. 670-675; Hyde
on International Law [revised Edition], Vol. 2, pp. 1405, 1416-1418; willoughby on the
U.S. Constitution Law, Vol. I [2d ed.], pp. 537-540; Moore, International Law Digest,
Vol. V, pp. 210-218; Hackworth, International Law Digest, Vol. V, pp. 390-407). (Italics
Supplied)" (Emphasis Ours)
The deliberations of the Constitutional Commission which drafted the 1987 Constitution
is enlightening and highly-instructive:
"MR. MAAMBONG. Of course it goes without saying that as far as ratification of the other
state is concerned, that is entirely their concern under their own laws.
FR. BERNAS. Yes, but we will accept whatever they say. If they say that we have done
everything to make it a treaty, then as far as we are concerned, we will accept it as a
treaty."
The records reveal that the United States Government, through Ambassador Thomas C.
Hubbard, has stated that the United States government has fully committed to living up
to the terms of the VFA.42 For as long as the united States of America accepts or
acknowledges the VFA as a treaty, and binds itself further to comply with its obligations
under the treaty, there is indeed marked compliance with the mandate of the
Constitution.
Worth stressing too, is that the ratification, by the President, of the VFA and the
concurrence of the Senate should be taken as a clear an unequivocal expression of our
nation’s consent to be bound by said treaty, with the concomitant duty to uphold the
obligations and responsibilities embodied thereunder.
Ratification is generally held to be an executive act, undertaken by the head of the state
or of the government, as the case may be, through which the formal acceptance of the
treaty is proclaimed.43 A State may provide in its domestic legislation the process of
ratification of a treaty. The consent of the State to be bound by a treaty is expressed by
ratification when: (a) the treaty provides for such ratification, (b) it is otherwise
established that the negotiating States agreed that ratification should be required, (c)
the representative of the State has signed the treaty subject to ratification, or (d) the
intention of the State to sign the treaty subject to ratification appears from the full
powers of its representative, or was expressed during the negotiation.
In our jurisdiction, the power to ratify is vested in the President and not, as commonly
believed, in the legislature. The role of the Senate is limited only to giving or withholding
its consent, or concurrence, to the ratification.
With the ratification of the VFA, which is equivalent to final acceptance, and with the
exchange of notes between the Philippines and the United States of America, it now
becomes obligatory and incumbent on our part, under the principles of international law,
to be bound by the terms of the agreement. Thus, no less than Section 2, Article II of
the Constitution,46 declares that the Philippines adopts the generally accepted principles
of international law as part of the law of the land and adheres to the policy of peace,
equality, justice, freedom, cooperation and amity with all nations.
As a member of the family of nations, the Philippines agrees to be bound by generally
accepted rules for the conduct of its international relations. While the international
obligation devolves upon the state and not upon any particular branch, institution, or
individual member of its government, the Philippines is nonetheless responsible for
violations committed by any branch or subdivision of its government or any official
thereof. As an integral part of the community of nations, we are responsible to assure
that our government, Constitution and laws will carry out our international obligation.47
Hence, we cannot readily plead the Constitution as a convenient excuse for non-
compliance with our obligations, duties and responsibilities under international law.
Beyond this, Article 13 of the Declaration of Rights and Duties of States adopted by the
International Law Commission in 1949 provides: "Every State has the duty to carry out
in good faith its obligations arising from treaties and other sources of international law,
and it may not invoke provisions in its constitution or its laws as an excuse for failure to
perform this duty."
Equally important is Article 26 of the convention which provides that "Every treaty in
force is binding upon the parties to it and must be performed by them in good faith."
This is known as the principle of pacta sunt servanda which preserves the sanctity of
treaties and have been one of the most fundamental principles of positive international
law, supported by the jurisprudence of international tribunals.
NO GRAVE ABUSE OF DISCRETION
In the instant controversy, the President, in effect, is heavily faulted for exercising a
power and performing a task conferred upon him by the Constitution-the power to enter
into and ratify treaties. Through the expediency of Rule 65 of the Rules of Court,
petitioners in these consolidated cases impute grave abuse of discretion on the part of
the chief Executive in ratifying the VFA, and referring the same to the Senate pursuant
to the provisions of Section 21, Article VII of the Constitution.
On this particular matter, grave abuse of discretion implies such capricious and
whimsical exercise of judgment as is equivalent to lack of jurisdiction, or, when the
power is exercised in an arbitrary or despotic manner by reason of passion or personal
hostility, and it must be so patent and gross as to amount to an evasion of positive duty
enjoined or to act at all in contemplation of law.
By constitutional fiat and by the intrinsic nature of his office, the President, as head of
State, is the sole organ and authority in the external affairs of the country. In many
ways, the President is the chief architect of the nation’s foreign policy; his "dominance in
the field of foreign relations is (then) conceded." Wielding vast powers an influence, his
conduct in the external affairs of the nation, as Jefferson describes, is "executive
altogether."
As regards the power to enter into treaties or international agreements, the Constitution
vests the same in the President, subject only to the concurrence of at least two-thirds
vote of all the members of the Senate. In this light, the negotiation of the VFA and the
subsequent ratification of the agreement are exclusive acts which pertain solely to the
President, in the lawful exercise of his vast executive and diplomatic powers granted him
no less than by the fundamental law itself. Into the field of negotiation the Senate
cannot intrude, and Congress itself is powerless to invade it.53 Consequently, the acts
or judgment calls of the President involving the VFA-specifically the acts of ratification
and entering into a treaty and those necessary or incidental to the exercise of such
principal acts - squarely fall within the sphere of his constitutional powers and thus, may
not be validly struck down, much less calibrated by this Court, in the absence of clear
showing of grave abuse of power or discretion.
It is the Court’s considered view that the President, in ratifying the VFA and in
submitting the same to the Senate for concurrence, acted within the confines and limits
of the powers vested in him by the Constitution. It is of no moment that the President,
in the exercise of his wide latitude of discretion and in the honest belief that the VFA
falls within the ambit of Section 21, Article VII of the Constitution, referred the VFA to
the Senate for concurrence under the aforementioned provision. Certainly, no abuse of
discretion, much less a grave, patent and whimsical abuse of judgment, may be imputed
to the President in his act of ratifying the VFA and referring the same to the Senate for
the purpose of complying with the concurrence requirement embodied in the
fundamental law. In doing so, the President merely performed a constitutional task and
exercised a prerogative that chiefly pertains to the functions of his office. Even if he
erred in submitting the VFA to the Senate for concurrence under the provisions of
Section 21 of Article VII, instead of Section 25 of Article XVIII of the Constitution, still,
the President may not be faulted or scarred, much less be adjudged guilty of committing
an abuse of discretion in some patent, gross, and capricious manner.
For while it is conceded that Article VIII, Section 1, of the Constitution has broadened
the scope of judicial inquiry into areas normally left to the political departments to
decide, such as those relating to national security, it has not altogether done away with
political questions such as those which arise in the field of foreign relations.54 The High
Tribunal’s function, as sanctioned by Article VIII, Section 1, "is merely (to) check
whether or not the governmental branch or agency has gone beyond the constitutional
limits of its jurisdiction, not that it erred or has a different view. In the absence of a
showing… (of) grave abuse of discretion amounting to lack of jurisdiction, there is no
occasion for the Court to exercise its corrective power…It has no power to look into what
it thinks is apparent error."
As to the power to concur with treaties, the constitution lodges the same with the
Senate alone.1âwphi1 Thus, once the Senate56 performs that power, or exercises its
prerogative within the boundaries prescribed by the Constitution, the concurrence
cannot, in like manner, be viewed to constitute an abuse of power, much less grave
abuse thereof. Corollarily, the Senate, in the exercise of its discretion and acting within
the limits of such power, may not be similarly faulted for having simply performed a task
conferred and sanctioned by no less than the fundamental law.
For the role of the Senate in relation to treaties is essentially legislative in character;57
the Senate, as an independent body possessed of its own erudite mind, has the
prerogative to either accept or reject the proposed agreement, and whatever action it
takes in the exercise of its wide latitude of discretion, pertains to the wisdom rather than
the legality of the act. In this sense, the Senate partakes a principal, yet delicate, role in
keeping the principles of separation of powers and of checks and balances alive and
vigilantly ensures that these cherished rudiments remain true to their form in a
democratic government such as ours. The Constitution thus animates, through this
treaty-concurring power of the Senate, a healthy system of checks and balances
indispensable toward our nation’s pursuit of political maturity and growth. True enough,
rudimentary is the principle that matters pertaining to the wisdom of a legislative act are
beyond the ambit and province of the courts to inquire.
In fine, absent any clear showing of grave abuse of discretion on the part of
respondents, this Court- as the final arbiter of legal controversies and staunch sentinel
of the rights of the people - is then without power to conduct an incursion and meddle
with such affairs purely executive and legislative in character and nature. For the
Constitution no less, maps out the distinct boundaries and limits the metes and bounds
within which each of the three political branches of government may exercise the powers
exclusively and essentially conferred to it by law.
WHEREFORE, in light of the foregoing disquisitions, the instant petitions are hereby
DISMISSED.
SO ORDERED.
DISSENTING OPINION
PUNO, J.:
The cases at bar offer a smorgasbord of issues. As summed up by the Solicitor General,
they are:
"I
DO PETITIONERS HAVE STANDING AS CONCERNED CITIZENS, TAXPAYERS, OR
LEGISLATORS?
II
IS THE VFA CONSISTENT WITH THE GENERAL WELFARE CLAUSE OF THE
CONSTITUTION?
III
IS THE VFA GOVERNED BY THE PROVISIONS OF SECTION 21, ARTICLE VII OR SECTION
25, ARTICLE XVIII OF THE CONSTITUTION?
IV
DOES THE VFA CONSTITUTE AN ABDICATION OF PHILIPPINE SOVEREIGNTY?
(a) DOES THE VFA DEPRIVE PHILIPPINE COURTS OF THEIR JURISDICTION TO HEAR
AND TRY OFFENSES COMMITTED BY U.S. MILITARY PERSONNEL?
(b) IS THIS COURT DEPRIVED OF ITS JURISDICTION OVER OFFENSES PUNISHABLE BY
RECLUSION PERPETUA OR HIGHER?
(c) IS THE GRANT OF TAX EXEMPTIONS UNDER THE VFA UNCONSTITUTIONAL?
V
DOES THE VFA VIOLATE THE EQUAL PROTECTION CLAUSE UNDER SECTION 1, ARTICLE
III OF THE CONSTITUTION?
VI
IS THE NUCLEAR BAN UNDER SECTION 8, ARTICLE II OF THE CONSITUTION VIOLATED
BY THE VFA?
VII
ARE FILIPINOS DENIED THEIR PERSONAL AND PROPERTY RIGHT TO SUE FOR TORTS
AND DAMAGES?
VIII
WAS THERE UNDUE DELEGATION OF LEGISLATIVE POWER IN THE APPROVAL OF THE
VFA?
IX
DOES THE VFA CONTRAVENE THE POLICY OF NEUTRALITY UNDER SECTION 7, ARTICLE
II OF THE CONSTITUTION?
X
IS THE TERM "ACTIVITIES" UNDER THE COVERAGE OF THE VFA VAGUE, UNQUALIFIED
OR UNCERTAIN?"
I like to think that the most significant issue is whether the Visiting Forces Agreement
(VFA) violates Sec. 25, Art. XVIII of the Constitution. I shall therefore limit my opinion
on this jugular issue.
The 1987 Constitution provides in Sec. 25, Art. XVIII, viz:
"After the expiration in 1991 of the Agreement between the Republic of the Philippines
and the United States of America concerning Military Bases, foreign military bases,
troops, or facilities shall not be allowed in the Philippines except under a treaty duly
concurred in by the Senate and, when the Congress so requires, ratified by a majority of
the votes cast by the people in a national referendum held for that purpose, and
recognized as a treaty by the other contracting State."
This provision lays down three constitutional requisites that must be complied with
before foreign military bases, troops, or facilities can be allowed in Philippine territory,
namely: (1) their presence should be allowed by a treaty duly concurred in by the
Philippine Senate; (2) when Congress so requires, such treaty should be ratified by a
majority of the votes cast by the Filipino people in a national referendum held for that
purpose; and (3) such treaty should be recognized as a treaty by the other contracting
party.
To start with, respondents, with unrelenting resolve, claim that these constitutional
requirements are not applicable to the VFA. They contend that the VFA, as its title
implies, contemplates merely temporary visits of U.S. military troops in Philippine
territory, and thus does not come within the purview of Sec. 25, Art. XVIII of the
Constitution. They assert that this constitutional provision applies only to the stationing
or permanent presence of foreign military troops on Philippine soil since the word
"troops" is mentioned along with "bases" and "facilities" which are permanent in
nature.1 This assertion would deserve serious attention if the temporary nature of these
visits were indeed borne out by the provisions of the VFA. If we turn, however, a heedful
eye on the provisions of the VFA as well as the interpretation accorded to it by the
government officials charged with its negotiation and implementation, the temporary
nature of the visits would turn out to be a mirage in a desert of vague provisions of the
VFA. Neither the VFA nor the Mutual Defense Treaty between the Republic of the
Philippines and the United States of America2 to which the VFA refers in its preamble,3
provides the slightest suggestion on the duration of visits of U.S. forces in Philippine
territory. The joint public hearings on the VFA conducted by the Senate Committee on
Foreign Relations and the Senate Committee on National Defense and Security give us a
keyhole to the time frame involved in these visits.
Secretary of Foreign Affairs Domingo L. Siazon, the Philippine’s signatory to the VFA,
testified before the said committees that even before the signing of the VFA, Philippine
and U.S. troops conducted joint military exercises in Philippine territory for two days to
four weeks at the frequency of ten to twelve exercises a year. The "Balikatan", the
largest combined military exercise involving about 3,000 troops, lasted at an average of
three to four weeks and occurred once every year or one and a half years.4 He further
declared that the VFA contemplates the same time line for visits of U.S. troops, but
argued that even if these troops conduct ten to twelve exercises a year with each
exercise lasting for two to three weeks, their stay will not be uninterrupted, hence, not
permanent.5 Secretary of National Defense Orlando S. Mercado further testified that the
VFA will allow joint military exercises between the Philippine and U.S. troops on a larger
scale than those we had been undertaking since 1994.6 As the joint military exercises
will be conducted on a larger scale, it would be reasonable to project an escalation of the
duration as well as frequency of past joint military exercises between Philippine and U.S.
troops.

These views on the temporary nature of visits of U.S. troops cannot stand for, clearly,
the VFA does not provide for a specific and limited period of effectivity. It instead
provides an open-ended term in Art. IX, viz: ". . . (t)his agreement shall remain in force
until the expiration of 180 days from the date on which either party gives the other
party notice in writing that it desires to terminate the agreement." No magic of
semantics will blur the truth that the VFA could be in force indefinitely. The following
exchange between Senator Aquilino Q. Pimentel, Jr. and Secretary Siazon in the public
hearings on the VFA is apropos to the issue:
"SEN. PIMENTEL. . . . In other words, this kind of activities are not designed to last only
within one year, for example, the various visits, but can cover eternity until the treaty is
abrogated?
MR. SIAZON. Well, Your Honor, this is an exercise for the protection of our national
security, and until conditions are such that there is no longer a possible threat to our
national security, then you will have to continue exercising, Your Honor, because we
cannot take a chance on it.
SEN. PIMENTEL. So, this will be temporarily permanent, or permanently temporary?
MR. SIAZON. Permanently temporary, Your Honor."
The worthiest of wordsmiths cannot always manipulate the meaning of words. Black’s
Law Dictionary defines "temporary" as "that which is to last for a limited time only, as
distinguished from that which is perpetual or indefinite in its duration"8 and states that
"permanent" is "generally opposed to ‘temporary’ but not always meaning perpetual."
The definitions of "temporary" and "permanent" in Bouvier’s Law Dictionary are of
similar import: temporary is "that which is to last for a limited time" while permanent
"does not always embrace the idea of absolute perpetuity." By these definitions, even
the contingency that the Philippines may abrogate the VFA when there is no longer any
threat to our national security does not make the visits of U.S. troops temporary, nor do
short interruptions in or gaps between joint military exercises carve them out from the
definition of "permanent" as permanence does not necessarily contemplate absolute
perpetuity.
It is against this tapestry woven from the realities of the past and a vision of the future
joint military exercises that the Court must draw a line between temporary visits and
permanent stay of U.S. troops. The absence in the VFA of the slightest suggestion as to
the duration of visits of U.S. troops in Philippine territory, coupled with the lack of a
limited term of effectivity of the VFA itself justify the interpretation that the VFA allows
permanent, not merely temporary, presence of U.S. troops on Philippine soil. Following
Secretary Siazon’s testimony, if the visits of U.S. troops could last for four weeks at the
most and at the maximum of twelve times a year for an indefinite number of years, then
by no stretch of logic can these visits be characterized as temporary because in fact, the
U.S. troops could be in Philippine territory 365 days a year for 50 years -- longer than
the duration of the 1947 RP-US Military Bases Agreement12 which expired in 1991 and
which, without question, contemplated permanent presence of U.S. bases, facilities, and
troops.
To be sure, even former Secretary of Justice, Serafin Cuevas, admitted in the same
public hearings that the subject matter of the VFA, i.e., the visits and activities of U.S.
troops in Philippine territory, partakes of a permanent character. He declared with
clarity:
"MR. CUEVAS. . . . Why we considered this as a treaty is because the subject therein
treated had some character of permanence; and secondly, there is a change insofar as
some of our laws are concerned."
Thus, regardless of whether Sec. 25, Art. XVIII of the Constitution contemplates
permanent presence of foreign military troops alone, or temporary presence as well, the
VFA comes within its purview as it allows the permanent presence of U.S. troops on
Philippine soil. Contrary to respondents’ allegation, the determination of the permanent
nature of visits of U.S. troops under the VFA is an issue ripe for adjudication since Sec.
25 of Art. XVIII speaks of the manner by which U.S. troops may be allowed to enter
Philippine territory. We need not wait and see, therefore, whether the U.S. troops will
actually conduct military exercises on Philippine soil on a permanent basis before
adjudicating this issue. What is at issue is whether the VFA allows such permanent
presence of U.S. troops in Philippine territory.
To determine compliance of the VFA with the requirements of Sec. 25, Art. XVIII of the
Constitution, it is necessary to ascertain the intent of the framers of the Constitution as
well as the will of the Filipino people who ratified the fundamental law. This exercise
would inevitably take us back to the period in our history when U.S. military presence
was entrenched in Philippine territory with the establishment and operation of U.S.
Military Bases in several parts of the archipelago under the 1947 R.P.-U.S. Military Bases
Agreement. As articulated by Constitutional Commissioner Blas F. Ople in the 1986
Constitutional Commission deliberations on this provision, the 1947 RP-US Military Bases
Agreement was ratified by the Philippine Senate, but not by the United States Senate. In
the eyes of Philippine law, therefore, the Military Bases Agreement was a treaty, but by
the laws of the United States, it was a mere executive agreement.14 This asymmetry in
the legal treatment of the Military Bases Agreement by the two countries was believed to
be a slur to our sovereignty. Thus, in the debate among the Constitutional
Commissioners, the unmistakable intention of the commission emerged that this
anomalous asymmetry must never be repeated.15 To correct this historical aberration,
Sec. 25, Art. XVIII of the Constitution requires that the treaty allowing the presence of
foreign military bases, troops, and facilities should also be "recognized as a treaty by the
other contracting party." In plain language, recognition of the United States as the other
contracting party of the VFA should be by the U.S. President with the advice and consent
of the U.S. Senate. The following exchanges manifest this intention:
"MR. OPLE. Will either of the two gentlemen yield to just one question for clarification?
Is there anything in this formulation, whether that of Commissioner Bernas or of
Commissioner Romulo, that will prevent the Philippine government from abrogating the
existing bases agreement?
FR. BERNAS. To my understanding, none.
MR. ROMULO. I concur with Commissioner Bernas.
MR. OPLE. I was very keen to put this question because I had taken the position from
the beginning - and this is embodied in a resolution filed by Commissioners Natividad,
Maambong and Regalado - that it is very important that the government of the Republic
of the Philippines be in a position to terminate or abrogate the bases agreement as one
of the options. . . . we have acknowledged starting at the committee level that the bases
agreement was ratified by our Senate; it is a treaty under Philippine law. But as far as
the Americans are concerned, the Senate never took cognizance of this and therefore, it
is an executive agreement. That creates a wholly unacceptable asymmetry between the
two countries. Therefore, in my opinion, the right step to take, if the government of our
country will deem it in the national interest to terminate this agreement or even to
renegotiate it, is that we must begin with a clean slate; we should not be burdened by
the flaws of the 1947 Military Bases Agreement. . .
MR. ROMULO. Madam President, I think the two phrases in the Bernas formulation take
care of Commissioner Ople’s concerns.
The first says "EXCEPT UNDER THE TERMS OF A TREATY." That means that if it is to be
renegotiated, it must be under the terms of a new treaty. The second is the concluding
phrase which says: "AND RECOGNIZED AS A TREATY BY THE OTHER CONTRACTING
STATE."
xxx
MR. SUAREZ. Is the proposal prospective and not retroactive in character?
FR. BERNAS. Yes, it is prospective because it does not touch the validity of the present
agreement. However, if a decision should be arrived at that the present agreement is
invalid, then even prior to 1991, this becomes operative right away.
MR. SUAREZ. In other words, we do not impress the previous agreements with a valid
character, neither do we say that they are null and void ab initio as claimed by many of
us here.
FR. BERNAS. The position I hold is that it is not the function of this Commission to pass
judgment on the validity or invalidity of the subsisting agreement.
MR. SUAREZ. . . . the proposal requires recognition of this treaty by the other
contracting nation. How would that recognition be expressed by that other contracting
nation? That is in accordance with their constitutional or legislative process, I assume.
FR. BERNAS. As Commissioner Romulo indicated, since this certainly would refer only to
the United States, because it is only the United States that would have the possibility of
being allowed to have treaties here, then we would have to require that the Senate of
the United States concur in the treaty because under American constitutional law, there
must be concurrence on the part of the Senate of the United States to conclude treaties.
xxx
FR. BERNAS. When I say that the other contracting state must recognize it as a treaty,
by that I mean it must perform all the acts required for the agreement to reach the
status of a treaty under their jurisdiction." (emphasis supplied)17
In ascertaining the VFA’s compliance with the constitutional requirement that it be
"recognized as a treaty by the other contracting state," it is crystal clear from the above
exchanges of the Constitutional Commissioners that the yardstick should be U.S.
constitutional law. It is therefore apropos to make a more in depth study of the U.S.
President’s power to enter into executive agreements under U.S. constitutional law.
Sec. 2, Art. II, Clause 2 of the U.S. Constitution provides that the President "shall have
Power, by and with the Advice and Consent of the Senate, to make Treaties, provided
two thirds of the Senators present concur." The U.S. Constitution does not define
"treaties". Nevertheless, the accepted definition of a "treaty" is that of "an agreement
between two or more states or international organizations that is intended to be legally
binding and is governed by international law."18 Although the United States did not
formally ratify the Vienna Convention on the Law of Treaties, its definition of a treaty
has been applied by U.S. courts and the State Department has stated that the Vienna
Convention represents customary international law.19 The Vienna Convention defines a
treaty as "an international agreement concluded between States in written form and
governed by international law."20 It has been observed that this definition is broader
than the sense in which "treaty" is used in the U.S. Constitution. In U.S. practice, a
"treaty" is only one of four types of international agreements, namely: Article II treaties,
executive agreements pursuant to a treaty, congressional-executive agreements, and
sole executive agreements.
The term "executive agreement" is used both colloquially and in scholarly and
governmental writings as a convenient catch-all to subsume all international agreements
intended to bind the United States and another government, other than those which
receive consent of two-thirds of the U.S. Senate.22 The U.S. Constitution does not
expressly confer authority to make these executive agreements, hence the authority to
make them, their scope, and legal force have been the subject of a long-ongoing
debate.23 This, notwithstanding, executive agreements have grown to be a primary
instrument of foreign policy in the United States. In 1789-1839, the United States
concluded 60 treaties and only 27 executive agreements. In 1930-1939, the United
States entered into 142 treaties and 144 executive agreements. In 1940-1949, 116
treaties and 919 executive agreements were concluded by the United States. From
1980-1988, the United States entered into 136 treaties and 3,094 executive
agreements. In sum, by 1988, there were 12,778 executive agreements as opposed to
1,476 treaties, accounting for about 90% of the international agreements concluded by
the United States.
The upsurge in the use of executive agreements in the post World War II period may be
attributed to several factors. President Franklin Roosevelt set a precedent for the more
recent presidents by, for instance, completing the Destroyer-for-Bases deal of 1940 with
an executive agreement. President Harry S. Truman likewise concluded the Potsdam
Agreement by executive agreement. The U.S. Presidents also committed military
missions in Honduras and El Salvador in the 1950’s; pledged security to Turkey, Iran,
and Pakistan; acquired permission from the British to use the island of Diego Garcia for
military purposes in the 1960’s; and established a military mission in Iran in 1974, all by
way of executive agreements.25 U.S. Supreme Court decisions affirming the validity of
executive agreements have also contributed to the explosive growth in their usage.26
Another factor that accelerated its use was the foreign policy cooperation between
Congress and the executive as expressed in the postwar refrain that "politics must end
at the water’s edge."27 The fourth factor is the expansion of executive institutions
including foreign policy machinery and information.28 The fifth factor is the Cold War
which put the United States in a "constant state of emergency" which required
expediency in decisions and actions regarding the use of force or diplomacy. Last but not
the least, the nuclear weapons race and instantaneous global communication made
centralized foreign policy machinery under the U.S. President necessary.
These executive agreements which have grown to be the primary instrument of U.S.
foreign policy may be classified into three types, namely:
(1) Treaty-authorized executive agreements, i.e., agreements made by the President
pursuant to authority conferred in a prior treaty;
(2) Congressional-executive agreements, i.e., agreements either (a) negotiated by the
President with prior Congressional authorization or enactment or (b) confirmed by both
Houses of Congress after the fact of negotiation; and
(3) Presidential or sole executive agreements, i.e., agreements made by the President
based on his exclusive presidential powers, such as the power as commander-in-chief of
the armed forces pursuant to which he conducts military operations with U.S. allies, or
his power to receive ambassadors and recognize foreign governments.
This classification is important as the different types of executive agreements bear
distinctions in terms of constitutional basis, subject matter, and legal effects in the
domestic arena. For instance, treaty-authorized executive agreements do not pose
constitutional problems as they are generally accepted to have been pre-approved by
the Senate when the Senate consented to the treaty which authorized the executive to
enter into executive agreements; another view supporting its acceptance is that the
Senate delegated to the President the authority to make the executive agreement.33 In
comparison, the constitutionality of congressional-executive agreements has provoked
debate among legal scholars. One view, espoused by interpretivists such as Edwin
Borchard, holds that all international agreements must be strictly in accordance with
Sec. 2, Art. II of the U.S. Constitution, and thus congressional-executive agreements are
constitutionally invalid. According to them, allowing congressional-executive agreements
would enhance the power of the President as well as of the House of Representatives, in
utter violation of the intent of the framers of the U.S. Constitution.34 The opposite
school of thought, led by Myer S. McDougal and Asher Lans, holds that congressional-
executive agreements and treaties are interchangeable, thus, such agreements are
constitutional. These non-interpretivists buttress their stance by leaning on the
constitutional clause that prohibits States, without consent of Congress, from "enter(ing)
into any Agreement or Compact with another State, or with a Foreign Power." By
making reference to international agreements other than treaties, these scholars argue
that the framers of the Constitution intended international agreements, other than
treaties, to exist. This school of thought generally opposes the "mechanical, filiopietistic
theory, (which) purports to regard the words of the Constitution as timeless
absolutes"35 and gives emphasis to the necessity and expediency of congressional-
executive agreements in modern foreign affairs.36 Finally, sole executive agreements
which account for a relatively small percentage of executive agreements are the most
constitutionally problematic since the system of checks and balances is inoperative when
the President enters into an executive agreement with neither the Senate’s or Congress’
consent. This last type of executive agreement draws authority upon the President’s
enumerated powers under Article II of the U.S. Constitution, such as the President’s
power as Commander-in-Chief of the U.S. army and navy.
I respectfully submit that, using these three types of executive agreements as bases for
classification, the VFA would not fall under the category of an executive agreement
made by the president pursuant to authority conferred in a prior treaty because
although the VFA makes reference to the Mutual Defense Treaty in its Preamble, the
Mutual Defense Treaty itself does not confer authority upon the U.S. President to enter
into executive agreements in implementation of the Treaty. Issues have occasionally
arisen about whether an executive agreement was entered into pursuant to a treaty.
These issues, however, involved mere treaty interpretation. In Wilson v. Girard, 354 US
524 (1957), the U.S. Supreme Court had occasion to interpret Art. III of the Security
Treaty Between the United States of America and Japan which stated that, "(t)he
conditions which shall govern the disposition of armed forces of the United States of
America in and about Japan shall be determined by administrative agreements between
the two Governments." Pursuant to this provision in the treaty, the executive entered
into an administrative agreement covering, among other matters, jurisdiction of the
United States over offenses committed in Japan by members of the U.S. armed forces.
The U.S. Supreme Court recognized the validity of the Administrative Agreement as it
was concluded by the President pursuant to the authority conferred upon him by Art. III
of the Security Treaty between Japan and the United States to make administrative
agreements between the two governments concerning "(t)he conditions which shall
govern the disposition of armed forces of the United States of America in and about
Japan."
Respondents boldly claim that the VFA is authorized by Art. II of the RP-US Mutual
Defense Treaty which provides that, "(i)n order more effectively to achieve the objective
of this Treaty, the Parties separately and jointly by self-help and mutual aid will maintain
and develop their individual and collective capacity to resist armed attack."41 The
alleged authorization is not as direct and unequivocal as Art. III of the Security Treaty
Between the U.S. and Japan, hence it would be precarious to assume that the VFA
derives authorization from the Mutual Defense Treaty. The precariousness is heightened
by the fact that when the U.S. Senate ratified the Agreement Between the Parties to the
North Atlantic Treaty Regarding the Status of Their Forces42 which was concluded
pursuant to the North Atlantic Treaty (NATO),43 the Senate included in its instrument of
ratification statements on matters of jurisdiction over U.S. forces stationed abroad,
among which was an admonition that the Agreement’s provisions on criminal jurisdiction
which have similar features as the VFA, do not constitute a precedent for future
agreements. We can reasonably gather from the U.S. Senate’s statements that criminal
jurisdiction over U.S. forces stationed abroad is a matter of Senate concern, and thus
Senate authorization for the President to enter into agreements touching upon such
jurisdictional matters cannot so easily be assumed.
Neither does the VFA fall under the category of a Congressional-Executive Agreement as
it was not concluded by the U.S. President pursuant to Congressional authorization or
enactment nor has it been confirmed by the U.S. Congress.
At best, the VFA would be more akin to a sole or presidential executive agreement which
would be valid if concluded on the basis of the U.S. President’s exclusive power under
the U.S. Constitution. Respondents argue that except for the Status of Forces
Agreement (SOFA) entered into pursuant to the NATO, the United States, by way of
executive agreements, has entered into 78 Status of Forces Agreements (SOFA) which
extend privileges and immunities to U.S. forces stationed abroad,44 similar to the
provisions of the VFA. Respondents have failed, however, to qualify whether these
executive agreements are sole executive agreements or were concluded pursuant to
Congressional authorization or were authorized by treaty. This detail is important in view
of the above discussion on the sense of the Senate on criminal jurisdiction over U.S.
forces stationed abroad.
It will contribute to the elucidation of the legal status of the VFA under U.S. law if we
compare the legal force of sole executive agreements and of treaties. Under
international law, treaties and executive agreements equally bind the United States.45 If
there is any distinction between treaties and executive agreements, it must be found in
U.S. constitutional law.46 The distinctions, if any, between the legal force of treaties and
executive agreements on the domestic plane may be treated on three levels, namely,
vis-a-vis: (1) state law; (2) acts of Congress and treaties; and (3) the U.S. Constitution.
The Supremacy Clause of the U.S. Constitution provides: "This Constitution, and the Law
of the United States which shall be made in pursuance thereof; and all Treaties made, or
which shall be made, under the Authority of the United States, shall be the supreme Law
of the Land; and the Judges in every State shall be bound thereby, any Thing in the
Constitution or Laws of any State to the Contrary notwithstanding."
It is well-settled that this clause provides the constitutional basis for the superiority of a
treaty over state law. Thus, the Warsaw Convention to which the United States is a
signatory preempts the California law on airline liability.48 The U.S. Supreme Court has
ruled in unmistakable terms that a treaty enjoys supremacy over state law, viz:
"Plainly, the external powers of the United States are to be exercised without regard to
state laws or policies. The supremacy of a treaty in this respect has been recognized
from the beginning. Mr. Madison, in the Virginia Convention, said that if a treaty does
not supersede existing state laws, as far as they contravene its operation, the treaty
would be ineffective. "To counter-act it by the supremacy of the state laws, would bring
on the Union the just charge of national perfidy, and involve us in war." 3 Elliot,
Debates, 515. . . . this rule in respect of treaties is established by the express language
of cl. 2, Art. 6, of the Constitution. . . ."(emphasis supplied)
It is also generally conceded that sole executive agreements are supreme over state law
and policy. Two cases decided by the U.S. Supreme Court support this view.
The first of these two cases, United States v. Belmont,50 involved the Litvinov
Assignment, a sole executive agreement executed between the United States and the
Soviet Government. In 1918, the Soviet government, by laws and decrees, nationalized,
among others, a Russian corporation, and appropriated its assets including a sum of
money deposited with Belmont, a private banker doing business in New York. The sum
of money remained Russian property until 1933, at which time the Soviet government
released and assigned to the United States all amounts due the Soviet government from
American nationals, including the deposit account of the Russian corporation with
Belmont. The assignment, better known as the Litvinov Assignment, was effected by an
exchange of diplomatic correspondence between the Soviet government and the United
States to bring about a final settlement of the claims and counter-claims between the
Soviet government and the United States. Coincident with the assignment, the U.S.
President recognized the Soviet Government and normal diplomatic relations were
established between the two governments.
Upon demand duly made by the United States, the executors of Belmont’s will failed and
refused to pay the sum of money deposited by the Russian corporation with Belmont.
The United States thus filed a suit in a federal district court to recover the sum of
money. The court below held that the situs of the bank deposit was within the State of
New York and not within Soviet territory. Thus, the nationalization decree, if enforced,
would amount to an act of confiscation which was contrary to the controlling public
policy of New York. The U.S. Supreme Court, however, held that no state policy could
prevail against the Litvinov Assignment.52 It ruled as follows:
"The assignment and the agreements in connection therewith did not, as in the case of
treaties, as that term is used in the treaty making clause of the Constitution (Sec. 2, Art.
2), require the advice and consent of the Senate.
A treaty signifies "a compact made between two or more independent nations with a
view to the public welfare." B. Altman & Co. v. United States, 224 U.S. 583, 600, 56 L.
ed. 894, 910, 32 S. Ct. 593. But an international compact, as this was, is not always a
treaty which requires the participation of the Senate. There are many such compacts, of
which a protocol, a modus vivendi, a postal convention, and agreements like that now
under consideration are illustrations." (emphasis supplied)
On the supremacy of executive agreements over state law, it ruled as follows:
"Plainly, the external powers of the United States are to be exercised without regard to
state laws or policies. The supremacy of a treaty in this respect has been recognized
from the beginning. Mr. Madison, in the Virginia Convention, said that if a treaty does
not supersede existing state laws, as far as they contravene its operation, the treaty
would be ineffective. "To counter-act it by the supremacy of the state laws, would bring
on the Union the just charge of national perfidy, and involve us in war." 3 Elliot,
Debates, 515. . . And while this rule in respect of treaties is established by the express
language of cl. 2, Art. 6, of the Constitution, the same rule would result in the case of all
international compacts and agreements from the very fact that complete power over
international affairs is in the national government and is not and cannot be subjected to
any curtailment or interference on the part of the several states." (emphasis supplied)
The other case, United States v. Pink,55 likewise involved the Litvinov Assignment. The
U.S. Supreme Court here reiterated its ruling in the Belmont case and held that the
Litvinov Assignment was an international compact or agreement having similar dignity
as a treaty under the supremacy clause of the U.S. Constitution.
While adherents of sole executive agreements usually point to these two cases as
bearing judicial imprimatur of sole executive agreements, the validity of sole executive
agreements seems to have been initially dealt with by the U.S. Supreme Court in 1933
in Monaco v. Mississippi wherein Chief Justice Hughes stated that, "(t)he National
Government, by virtue of its control of our foreign relations is entitled to employ the
resources of diplomatic negotiations and to effect such an international settlement as
may be found to be appropriate, through treaty, agreement of arbitration, or otherwise."
Subsequent to the Belmont and Pink cases, the U.S. Supreme Court once again upheld
the validity of a sole executive agreement in Dames & Moore v. Regan.58 This case
involved the Algiers Accord, an executive agreement negotiated and concluded by
President Carter and confirmed by President Reagan to resolve the Iran Hostage Crisis in
1981. That agreement provided, among others, that the United States and Iran agreed
to cancel certain claims between them and to establish a special tribunal to resolve other
claims, including those by U.S. nationals against Iran. The United States also agreed to
close its courts to those claims, as well as to suits by U.S. citizens against the
government of Iran for recovery of damages arising from the Hostage Crisis. Although
the agreement was entered into by the President pursuant to Congressional
authorization, the Court found that the President’s action with regard to claims was not
so authorized. Nevertheless, the U.S. Supreme Court, noting the power of presidents in
foreign affairs which includes the power to settle claims, as well as Congressional
acquiescence to such practice, upheld the validity of the Algiers Accord.
Upon the other hand, those opposed to sole executive agreements argue that the
pronouncements of the Court in the Belmont and Pink cases mean that sole executive
agreements override state legislation only when founded upon the President’s
constitutional power to recognize foreign governments.
While treaties and sole executive agreements have the same legal effect on state law,
sole executive agreements pale in comparison to treaties when pitted against prior
inconsistent acts of Congress. The U.S. Supreme Court has long ago declared that the
Constitution mandates that a treaty and an act of legislation are both "supreme law of
the land." As such, no supreme efficacy is given to one over the other. If the two relate
to the same subject matter and are inconsistent, the one later in date will prevail,
provided the treaty is self-executing,60 i.e., "whenever it operates of itself without aid of
legislation." In The Cherokee Tobacco (Boudinot v. United States), the U.S. Supreme
Court also held that where there is repugnance between a treaty and an Act of
Congress, "(a) treaty may supersede a prior Act of Congress . . . and an Act of Congress
may supersede a prior treaty. . . ."63 Settled is the rule, therefore, that a treaty
supersedes an earlier repugnant Act of Congress, and an Act of Congress supersedes an
earlier contradictory treaty. As a corollary, a treaty, being placed on the same footing as
an act of legislation, can repeal or modify a prior inconsistent treaty.
In the case of sole executive agreements, commentators have been in general
agreement that unlike treaties, sole executive agreements cannot prevail over prior
inconsistent federal legislation. Even proponents of sole executive agreements admit
that while a self-executing treaty can supersede a prior inconsistent statute, it is very
doubtful whether a sole executive agreement, in the absence of appropriate legislation,
will be given similar effect.66 Wallace McClure, a leading proponent of the
interchangeability of treaties and executive agreements, opined that it would be contrary
to "the entire tenor of the Constitution" for sole executive agreements to supersede
federal law.67 The Restatement (Third) of the Foreign Relations Law of the United States
postulates that a sole executive agreement could prevail at least over state law, and
(only) possibly federal law without implementing legislation.68 Myer S. McDougal and
Asher Lans who are staunch advocates of executive agreements also concede that sole
executive agreements will not ordinarily be valid if repugnant to existing legislation.
In United States v. Guy W. Capps, Inc.,70 a leading lower court decision discussing the
issue of supremacy of executive agreements over federal legislation, the Fourth Circuit
held that, "the executive agreement was void because it was not authorized by Congress
and contravened provisions of a statute dealing with the very matter to which it
related..." The U.S. Supreme Court itself has "intimated that the President might act in
external affairs without congressional authority, but not that he might act contrary to an
Act of Congress." The reason for this is that the U.S. President’s power to enter into
international agreements derives from his position as Chief Executive. By Sec. 7, Art. 1
of the U.S. Constitution, the president does not have power to repeal existing federal
laws. Consequently, he cannot make an indirect repeal by means of a sole executive
agreement.
On the other side of the coin, it is argued, that when the U.S. President enters into a
sole executive agreement pursuant to his exclusive presidential authority in the field of
foreign relations, such agreement may prevail over prior inconsistent federal legislation.
In this situation, the doctrine of separation of powers may permit the U.S. President to
disregard the prior inconsistent Act of Congress as an "unconstitutional invasion of his
power." However, aside from lacking firm legal support, this view has to contend with
the problem of determining which powers are exclusively executive and which powers
overlap with the powers of Congress.
Again, although it is doubtful whether sole executive agreements can supersede prior
inconsistent federal legislation, proponents of sole executive agreements interpret the
Pink case to mean that sole executive agreements are on equal footing with a treaty,
having been accorded the status of "law of the land" under the supremacy clause and
the Litvinov Assignment having been recognized to have similar dignity as a treaty. As
such, it is opined that a sole executive agreement may supersede a prior inconsistent
treaty. Treaties of the United States have in fact been terminated on several occasions
by the President on his own authority. President Roosevelt terminated at least two
treaties under his independent constitutional powers: the extradition treaty with Greece,
in 1933, and the Treaty of Commerce and Navigation with Japan, in 1939. That sole
executive agreements may repeal or terminate a treaty is impliedly recognized in
Charlton v. Kelly80 as follows: "The executive department having thus elected to waive
any right to free itself from the obligation [of the treaty], it is the plain duty of the court
to recognize the obligation.
As against the U.S. Constitution, treaties and sole executive agreements are in equal
footing as they are subject to the same limitations. As early as 1870, the U.S. Supreme
Court declared that, "a treaty cannot change the Constitution or be held valid if it be in
violation of that instrument." In Missouri v. Holland, it was held that treaties must not
violate the Constitution. The U.S. Supreme Court also discussed the constitutionally
implied limitations on the treaty making power in Reid v. Covert, where Justice Black
stated that "(n)o agreement with a foreign nation can confer power on the Congress, or
any other branch of Government, which is free from the restraints of the Constitution."
He concluded that the U.S. Constitution provides limits to the acts of the president, the
joint action of the president and the Senate, and consequently limits the treaty making
power.
There is no dispute that the constitutional limitations relating to treaties also apply to
sole executive agreements. It is well-settled that the due process clause of the Fifth
Amendment and other substantive provisions of the U.S. Constitution constitute
limitations on both treaties and executive agreements.88 Numerous decisions have also
held that both treaties and sole executive agreements cannot contravene private rights
protected by the U.S. Constitution.
In conclusion, after a macro view of the landscape of U.S. foreign relations vis-a-vis U.S.
constitutional law, with special attention on the legal status of sole executive
agreements, I respectfully submit that the Court will be standing on unstable ground if it
places a sole executive agreement like the VFA on the same constitutional plateau as a
treaty. Questions remain and the debate continues on the constitutional basis as well as
the legal effects of sole executive agreements under U.S. law. The observation of Louis
Henkin, a noted international and U.S. constitutional law scholar, captures the
sentiments of the framers of the Philippine Constitution and of the Filipinos in crafting
Sec. 25, Art. XVIII of the 1987 Constitution -- "(o)ften the treaty process will be used at
the insistence of other parties to an agreement because they believe that a treaty has
greater ‘dignity’ than an executive agreement, because its constitutional effectiveness is
beyond doubt, because a treaty will ‘commit’ the Senate and the people of the United
States and make its subsequent abrogation or violation less likely."
With the cloud of uncertainty still hanging on the exact legal force of sole executive
agreements under U.S. constitutional law, this Court must strike a blow for the
sovereignty of our country by drawing a bright line between the dignity and status of a
treaty in contrast with a sole executive agreement. However we may wish it, the VFA, as
a sole executive agreement, cannot climb to the same lofty height that the dignity of a
treaty can reach. Consequently, it falls short of the requirement set by Sec. 25, Art.
XVIII of the 1987 Constitution that the agreement allowing the presence of foreign
military troops on Philippine soil must be "recognized as a treaty by the other
contracting state."
I vote to grant the petitions.
x-------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------x
G.R. No. 183591 October 14, 2008
THE PROVINCE OF NORTH COTABATO, duly represented by GOVERNOR JESUS
SACDALAN and/or VICE-GOVERNOR EMMANUEL PIÑOL, for and in his own
behalf, petitioners, vs. THE GOVERNMENT OF THE REPUBLIC OF THE
PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP), represented by
SEC. RODOLFO GARCIA, ATTY. LEAH ARMAMENTO, ATTY. SEDFREY
CANDELARIA, MARK RYAN SULLIVAN and/or GEN. HERMOGENES ESPERON, JR.,
the latter in his capacity as the present and duly-appointed Presidential Adviser
on the Peace Process (OPAPP) or the so-called Office of the Presidential
Adviser on the Peace Process, respondents.
x--------------------------------------------x
G.R. No. 183752 October 14, 2008
CITY GOVERNMENT OF ZAMBOANGA, as represented by HON. CELSO L.
LOBREGAT, City Mayor of Zamboanga, and in his personal capacity as resident
of the City of Zamboanga, Rep. MA. ISABELLE G. CLIMACO, District 1, and Rep.
ERICO BASILIO A. FABIAN, District 2, City of Zamboanga, petitioners, vs. THE
GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE NEGOTIATING
PANEL (GRP), as represented by RODOLFO C. GARCIA, LEAH ARMAMENTO,
SEDFREY CANDELARIA, MARK RYAN SULLIVAN and HERMOGENES ESPERON, in
his capacity as the Presidential Adviser on Peace Process, respondents.
x--------------------------------------------x
G.R. No. 183893 October 14, 2008
THE CITY OF ILIGAN, duly represented by CITY MAYOR LAWRENCE LLUCH
CRUZ, petitioner, vs. THE GOVERNMENT OF THE REPUBLIC OF THE
PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP), represented by
SEC. RODOLFO GARCIA, ATTY. LEAH ARMAMENTO, ATTY. SEDFREY
CANDELARIA, MARK RYAN SULLIVAN; GEN. HERMOGENES ESPERON, JR., in his
capacity as the present and duly appointed Presidential Adviser on the Peace
Process; and/or SEC. EDUARDO ERMITA, in his capacity as Executive Secretary.
respondents.
x--------------------------------------------x
G.R. No. 183951 October 14, 2008
THE PROVINCIAL GOVERNMENT OF ZAMBOANGA DEL NORTE, as represented by
HON. ROLANDO E. YEBES, in his capacity as Provincial Governor, HON. FRANCIS
H. OLVIS, in his capacity as Vice-Governor and Presiding Officer of the
Sangguniang Panlalawigan, HON. CECILIA JALOSJOS CARREON,
Congresswoman, 1st Congressional District, HON. CESAR G. JALOSJOS,
Congressman, 3rd Congressional District, and Members of the Sangguniang
Panlalawigan of the Province of Zamboanga del Norte, namely, HON. SETH
FREDERICK P. JALOSJOS, HON. FERNANDO R. CABIGON, JR., HON. ULDARICO
M. MEJORADA II, HON. EDIONAR M. ZAMORAS, HON. EDGAR J. BAGUIO, HON.
CEDRIC L. ADRIATICO, HON. FELIXBERTO C. BOLANDO, HON. JOSEPH BRENDO
C. AJERO, HON. NORBIDEIRI B. EDDING, HON. ANECITO S. DARUNDAY, HON.
ANGELICA J. CARREON and HON. LUZVIMINDA E. TORRINO, petitioners, vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE
NEGOTIATING PANEL [GRP], as represented by HON. RODOLFO C. GARCIA and
HON. HERMOGENES ESPERON, in his capacity as the Presidential Adviser of
Peace Process, respondents.
x--------------------------------------------x
G.R. No. 183962 October 14, 2008
ERNESTO M. MACEDA, JEJOMAR C. BINAY, and AQUILINO L. PIMENTEL III,
petitioners, vs. THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES
PEACE NEGOTIATING PANEL, represented by its Chairman RODOLFO C.
GARCIA, and the MORO ISLAMIC LIBERATION FRONT PEACE NEGOTIATING
PANEL, represented by its Chairman MOHAGHER IQBAL, respondents.
x--------------------------------------------x
FRANKLIN M. DRILON and ADEL ABBAS TAMANO, petitioners-in-intervention.
x--------------------------------------------x
SEN. MANUEL A. ROXAS, petitioners-in-intervention.
x--------------------------------------------x
MUNICIPALITY OF LINAMON duly represented by its Municipal Mayor NOEL N. DEANO,
petitioners-in-intervention,
x--------------------------------------------x
THE CITY OF ISABELA, BASILAN PROVINCE, represented by MAYOR CHERRYLYN P.
SANTOS-AKBAR, petitioners-in-intervention.
x--------------------------------------------x
THE PROVINCE OF SULTAN KUDARAT, rep. by HON. SUHARTO T. MANGUDADATU, in his
capacity as Provincial Governor and a resident of the Province of Sultan Kudarat,
petitioner-in-intervention.
x-------------------------------------------x
RUY ELIAS LOPEZ, for and in his own behalf and on behalf of Indigenous Peoples in
Mindanao Not Belonging to the MILF, petitioner-in-intervention.
x--------------------------------------------x
CARLO B. GOMEZ, GERARDO S. DILIG, NESARIO G. AWAT, JOSELITO C. ALISUAG and
RICHALEX G. JAGMIS, as citizens and residents of Palawan, petitioners-in-intervention.
x--------------------------------------------x
MARINO RIDAO and KISIN BUXANI, petitioners-in-intervention.
x--------------------------------------------x
MUSLIM LEGAL ASSISTANCE FOUNDATION, INC (MUSLAF), respondent-in-intervention.
x--------------------------------------------x
MUSLIM MULTI-SECTORAL MOVEMENT FOR PEACE & DEVELOPMENT (MMMPD),
respondent-in-intervention.
x--------------------------------------------x
DECISION
CARPIO MORALES, J.:

Subject of these consolidated cases is the extent of the powers of the President in
pursuing the peace process. While the facts surrounding this controversy center on the
armed conflict in Mindanao between the government and the Moro Islamic Liberation
Front (MILF), the legal issue involved has a bearing on all areas in the country where
there has been a long-standing armed conflict. Yet again, the Court is tasked to perform
a delicate balancing act. It must uncompromisingly delineate the bounds within which
the President may lawfully exercise her discretion, but it must do so in strict adherence
to the Constitution, lest its ruling unduly restricts the freedom of action vested by that
same Constitution in the Chief Executive precisely to enable her to pursue the peace
process effectively.
I. FACTUAL ANTECEDENTS OF THE PETITIONS
On August 5, 2008, the Government of the Republic of the Philippines (GRP) and the
MILF, through the Chairpersons of their respective peace negotiating panels, were
scheduled to sign a Memorandum of Agreement on the Ancestral Domain (MOA-AD)
Aspect of the GRP-MILF Tripoli Agreement on Peace of 2001 in Kuala Lumpur, Malaysia.
The MILF is a rebel group which was established in March 1984 when, under the
leadership of the late Salamat Hashim, it splintered from the Moro National Liberation
Front (MNLF) then headed by Nur Misuari, on the ground, among others, of what
Salamat perceived to be the manipulation of the MNLF away from an Islamic basis
towards Marxist-Maoist orientations.
The signing of the MOA-AD between the GRP and the MILF was not to materialize,
however, for upon motion of petitioners, specifically those who filed their cases before
the scheduled signing of the MOA-AD, this Court issued a Temporary Restraining Order
enjoining the GRP from signing the same.
The MOA-AD was preceded by a long process of negotiation and the concluding of
several prior agreements between the two parties beginning in 1996, when the GRP-
MILF peace negotiations began. On July 18, 1997, the GRP and MILF Peace Panels
signed the Agreement on General Cessation of Hostilities. The following year, they
signed the General Framework of Agreement of Intent on August 27, 1998.
The Solicitor General, who represents respondents, summarizes the MOA-AD by stating
that the same contained, among others, the commitment of the parties to pursue peace
negotiations, protect and respect human rights, negotiate with sincerity in the resolution
and pacific settlement of the conflict, and refrain from the use of threat or force to attain
undue advantage while the peace negotiations on the substantive agenda are on-going.
Early on, however, it was evident that there was not going to be any smooth sailing in
the GRP-MILF peace process. Towards the end of 1999 up to early 2000, the MILF
attacked a number of municipalities in Central Mindanao and, in March 2000, it took
control of the town hall of Kauswagan, Lanao del Norte. In response, then President
Joseph Estrada declared and carried out an "all-out-war" against the MILF
When President Gloria Macapagal-Arroyo assumed office, the military offensive against
the MILF was suspended and the government sought a resumption of the peace talks.
The MILF, according to a leading MILF member, initially responded with deep
reservation, but when President Arroyo asked the Government of Malaysia through
Prime Minister Mahathir Mohammad to help convince the MILF to return to the
negotiating table, the MILF convened its Central Committee to seriously discuss the
matter and, eventually, decided to meet with the GRP.
The parties met in Kuala Lumpur on March 24, 2001, with the talks being facilitated by
the Malaysian government, the parties signing on the same date the Agreement on the
General Framework for the Resumption of Peace Talks Between the GRP and the MILF.
The MILF thereafter suspended all its military actions.
Formal peace talks between the parties were held in Tripoli, Libya from June 20-22,
2001, the outcome of which was the GRP-MILF Tripoli Agreement on Peace (Tripoli
Agreement 2001) containing the basic principles and agenda on the following aspects of
the negotiation: Security Aspect, Rehabilitation Aspect, and Ancestral Domain Aspect.
With regard to the Ancestral Domain Aspect, the parties in Tripoli Agreement 2001
simply agreed "that the same be discussed further by the Parties in their next meeting."
A second round of peace talks was held in Cyberjaya, Malaysia on August 5-7, 2001
which ended with the signing of the Implementing Guidelines on the Security Aspect of
the Tripoli Agreement 2001 leading to a ceasefire status between the parties. This was
followed by the Implementing Guidelines on the Humanitarian Rehabilitation and
Development Aspects of the Tripoli Agreement 2001, which was signed on May 7, 2002
at Putrajaya, Malaysia. Nonetheless, there were many incidence of violence between
government forces and the MILF from 2002 to 2003.
Meanwhile, then MILF Chairman Salamat Hashim passed away on July 13, 2003 and he
was replaced by Al Haj Murad, who was then the chief peace negotiator of the MILF.
Murad's position as chief peace negotiator was taken over by Mohagher Iqbal.
In 2005, several exploratory talks were held between the parties in Kuala Lumpur,
eventually leading to the crafting of the draft MOA-AD in its final form, which, as
mentioned, was set to be signed last August 5, 2008.
II. STATEMENT OF THE PROCEEDINGS
Before the Court is what is perhaps the most contentious "consensus" ever embodied in
an instrument - the MOA-AD which is assailed principally by the present petitions
bearing docket numbers 183591, 183752, 183893, 183951 and 183962.
Commonly impleaded as respondents are the GRP Peace Panel on Ancestral Domain7
and the Presidential Adviser on the Peace Process (PAPP) Hermogenes Esperon, Jr.
On July 23, 2008, the Province of North Cotabato8 and Vice-Governor Emmanuel Piñol
filed a petition, docketed as G.R. No. 183591, for Mandamus and Prohibition with Prayer
for the Issuance of Writ of Preliminary Injunction and Temporary Restraining Order.
Invoking the right to information on matters of public concern, petitioners seek to
compel respondents to disclose and furnish them the complete and official copies of the
MOA-AD including its attachments, and to prohibit the slated signing of the MOA-AD,
pending the disclosure of the contents of the MOA-AD and the holding of a public
consultation thereon. Supplementarily, petitioners pray that the MOA-AD be declared
unconstitutional.
This initial petition was followed by another one, docketed as G.R. No. 183752, also for
Mandamus and Prohibition11 filed by the City of Zamboanga, Mayor Celso Lobregat,
Rep. Ma. Isabelle Climaco and Rep. Erico Basilio Fabian who likewise pray for similar
injunctive reliefs. Petitioners herein moreover pray that the City of Zamboanga be
excluded from the Bangsamoro Homeland and/or Bangsamoro Juridical Entity and, in
the alternative, that the MOA-AD be declared null and void.

By Resolution of August 4, 2008, the Court issued a Temporary Restraining Order

commanding and directing public respondents and their agents to cease and desist from
formally signing the MOA-AD. The Court also required the Solicitor General to submit to
the Court and petitioners the official copy of the final draft of the MOA-AD, to which she
complied.
Meanwhile, the City of Iligan16 filed a petition for Injunction and/or Declaratory Relief,
docketed as G.R. No. 183893, praying that respondents be enjoined from signing the
MOA-AD or, if the same had already been signed, from implementing the same, and that
the MOA-AD be declared unconstitutional. Petitioners herein additionally implead
Executive Secretary Eduardo Ermita as respondent.
The Province of Zamboanga del Norte,17 Governor Rolando Yebes, Vice-Governor
Francis Olvis, Rep. Cecilia Jalosjos-Carreon, Rep. Cesar Jalosjos, and the members18 of
the Sangguniang Panlalawigan of Zamboanga del Norte filed on August 15, 2008 a
petition for Certiorari, Mandamus and Prohibition,19 docketed as G.R. No. 183951. They
pray, inter alia, that the MOA-AD be declared null and void and without operative effect,
and that respondents be enjoined from executing the MOA-AD.
On August 19, 2008, Ernesto Maceda, Jejomar Binay, and Aquilino Pimentel III filed a
petition for Prohibition,20 docketed as G.R. No. 183962, praying for a judgment
prohibiting and permanently enjoining respondents from formally signing and executing
the MOA-AD and or any other agreement derived therefrom or similar thereto, and
nullifying the MOA-AD for being unconstitutional and illegal. Petitioners herein
additionally implead as respondent the MILF Peace Negotiating Panel represented by its
Chairman Mohagher Iqbal.
Various parties moved to intervene and were granted leave of court to file their
petitions-/comments-in-intervention. Petitioners-in-Intervention include Senator Manuel
A. Roxas, former Senate President Franklin Drilon and Atty. Adel Tamano, the City of
Isabela21 and Mayor Cherrylyn Santos-Akbar, the Province of Sultan Kudarat22 and
Gov. Suharto Mangudadatu, the Municipality of Linamon in Lanao del Norte,23 Ruy Elias
Lopez of Davao City and of the Bagobo tribe, Sangguniang Panlungsod member Marino
Ridao and businessman Kisin Buxani, both of Cotabato City; and lawyers Carlo Gomez,
Gerardo Dilig, Nesario Awat, Joselito Alisuag, Richalex Jagmis, all of Palawan City. The
Muslim Legal Assistance Foundation, Inc. (Muslaf) and the Muslim Multi-Sectoral
Movement for Peace and Development (MMMPD) filed their respective Comments-in-
Intervention.
By subsequent Resolutions, the Court ordered the consolidation of the petitions.
Respondents filed Comments on the petitions, while some of petitioners submitted their
respective Replies.
Respondents, by Manifestation and Motion of August 19, 2008, stated that the Executive
Department shall thoroughly review the MOA-AD and pursue further negotiations to
address the issues hurled against it, and thus moved to dismiss the cases. In the
succeeding exchange of pleadings, respondents' motion was met with vigorous
opposition from petitioners.
The cases were heard on oral argument on August 15, 22 and 29, 2008 that tackled the
following principal issues:
1. Whether the petitions have become moot and academic
(i) insofar as the mandamus aspect is concerned, in view of the disclosure of official
copies of the final draft of the Memorandum of Agreement (MOA); and
(ii) insofar as the prohibition aspect involving the Local Government Units is concerned,
if it is considered that consultation has become fait accompli with the finalization of the
draft;
2. Whether the constitutionality and the legality of the MOA is ripe for adjudication;
3. Whether respondent Government of the Republic of the Philippines Peace Panel
committed grave abuse of discretion amounting to lack or excess of jurisdiction when it
negotiated and initiated the MOA vis-à-vis ISSUES Nos. 4 and 5;
4. Whether there is a violation of the people's right to information on matters of public
concern (1987 Constitution, Article III, Sec. 7) under a state policy of full disclosure of
all its transactions involving public interest (1987 Constitution, Article II, Sec. 28)
including public consultation under Republic Act No. 7160 (LOCAL GOVERNMENT CODE
OF 1991)[;]
If it is in the affirmative, whether prohibition under Rule 65 of the 1997 Rules of Civil
Procedure is an appropriate remedy;
5. Whether by signing the MOA, the Government of the Republic of the Philippines would
be BINDING itself
a) to create and recognize the Bangsamoro Juridical Entity (BJE) as a separate state, or
a juridical, territorial or political subdivision not recognized by law;
b) to revise or amend the Constitution and existing laws to conform to the MOA;
c) to concede to or recognize the claim of the Moro Islamic Liberation Front for ancestral
domain in violation of Republic Act No. 8371 (THE INDIGENOUS PEOPLES RIGHTS ACT
OF 1997), particularly Section 3(g) & Chapter VII (DELINEATION, RECOGNITION OF
ANCESTRAL DOMAINS)[;]
If in the affirmative, whether the Executive Branch has the authority to so bind the
Government of the Republic of the Philippines;
6. Whether the inclusion/exclusion of the Province of North Cotabato, Cities of
Zamboanga, Iligan and Isabela, and the Municipality of Linamon, Lanao del Norte
in/from the areas covered by the projected Bangsamoro Homeland is a justiciable
question; and
7. Whether desistance from signing the MOA derogates any prior valid commitments of
the Government of the Republic of the Philippines.
The Court, thereafter, ordered the parties to submit their respective Memoranda. Most of
the parties submitted their memoranda on time.
III. OVERVIEW OF THE MOA-AD
As a necessary backdrop to the consideration of the objections raised in the subject five
petitions and six petitions-in-intervention against the MOA-AD, as well as the two
comments-in-intervention in favor of the MOA-AD, the Court takes an overview of the
MOA.
The MOA-AD identifies the Parties to it as the GRP and the MILF.
Under the heading "Terms of Reference" (TOR), the MOA-AD includes not only four
earlier agreements between the GRP and MILF, but also two agreements between the
GRP and the MNLF: the 1976 Tripoli Agreement, and the Final Peace Agreement on the
Implementation of the 1976 Tripoli Agreement, signed on September 2, 1996 during the
administration of President Fidel Ramos.
The MOA-AD also identifies as TOR two local statutes - the organic act for the
Autonomous Region in Muslim Mindanao (ARMM)25 and the Indigenous Peoples Rights
Act (IPRA),26 and several international law instruments - the ILO Convention No. 169
Concerning Indigenous and Tribal Peoples in Independent Countries in relation to the UN
Declaration on the Rights of the Indigenous Peoples, and the UN Charter, among others.

The MOA-AD includes as a final TOR the generic category of "compact rights
entrenchment emanating from the regime of dar-ul-mua'hada (or territory under
compact) and dar-ul-sulh (or territory under peace agreement) that partakes the nature
of a treaty device."
During the height of the Muslim Empire, early Muslim jurists tended to see the world
through a simple dichotomy: there was the dar-ul-Islam (the Abode of Islam) and dar-
ul-harb (the Abode of War). The first referred to those lands where Islamic laws held
sway, while the second denoted those lands where Muslims were persecuted or where
Muslim laws were outlawed or ineffective.27 This way of viewing the world, however,
became more complex through the centuries as the Islamic world became part of the
international community of nations.
As Muslim States entered into treaties with their neighbors, even with distant States and
inter-governmental organizations, the classical division of the world into dar-ul-Islam
and dar-ul-harb eventually lost its meaning. New terms were drawn up to describe novel
ways of perceiving non-Muslim territories. For instance, areas like dar-ul-mua'hada (land
of compact) and dar-ul-sulh (land of treaty) referred to countries which, though under a
secular regime, maintained peaceful and cooperative relations with Muslim States,
having been bound to each other by treaty or agreement. Dar-ul-aman (land of order),
on the other hand, referred to countries which, though not bound by treaty with Muslim
States, maintained freedom of religion for Muslims.
It thus appears that the "compact rights entrenchment" emanating from the regime of
dar-ul-mua'hada and dar-ul-sulh simply refers to all other agreements between the MILF
and the Philippine government - the Philippines being the land of compact and peace
agreement - that partake of the nature of a treaty device, "treaty" being broadly defined
as "any solemn agreement in writing that sets out understandings, obligations, and
benefits for both parties which provides for a framework that elaborates the principles
declared in the [MOA-AD]."
The MOA-AD states that the Parties "HAVE AGREED AND ACKNOWLEDGED AS
FOLLOWS," and starts with its main body.
The main body of the MOA-AD is divided into four strands, namely, Concepts and
Principles, Territory, Resources, and Governance.
A. CONCEPTS AND PRINCIPLES
This strand begins with the statement that it is "the birthright of all Moros and all
Indigenous peoples of Mindanao to identify themselves and be accepted as
‘Bangsamoros.'" It defines "Bangsamoro people" as the natives or original inhabitants of
Mindanao and its adjacent islands including Palawan and the Sulu archipelago at the
time of conquest or colonization, and their descendants whether mixed or of full blood,
including their spouses.
Thus, the concept of "Bangsamoro," as defined in this strand of the MOA-AD, includes
not only "Moros" as traditionally understood even by Muslims, but all indigenous peoples
of Mindanao and its adjacent islands. The MOA-AD adds that the freedom of choice of
indigenous peoples shall be respected. What this freedom of choice consists in has not
been specifically defined.
The MOA-AD proceeds to refer to the "Bangsamoro homeland," the ownership of which
is vested exclusively in the Bangsamoro people by virtue of their prior rights of
occupation. Both parties to the MOA-AD acknowledge that ancestral domain does not
form part of the public domain.
The Bangsamoro people are acknowledged as having the right to self-governance, which
right is said to be rooted on ancestral territoriality exercised originally under the
suzerain authority of their sultanates and the Pat a Pangampong ku Ranaw. The
sultanates were described as states or "karajaan/kadatuan" resembling a body politic
endowed with all the elements of a nation-state in the modern sense.
The MOA-AD thus grounds the right to self-governance of the Bangsamoro people on the
past suzerain authority of the sultanates. As gathered, the territory defined as the
Bangsamoro homeland was ruled by several sultanates and, specifically in the case of
the Maranao, by the Pat a Pangampong ku Ranaw, a confederation of independent
principalities (pangampong) each ruled by datus and sultans, none of whom was
supreme over the others.
The MOA-AD goes on to describe the Bangsamoro people as "the ‘First Nation' with
defined territory and with a system of government having entered into treaties of amity
and commerce with foreign nations."
The term "First Nation" is of Canadian origin referring to the indigenous peoples of that
territory, particularly those known as Indians. In Canada, each of these indigenous
peoples is equally entitled to be called "First Nation," hence, all of them are usually
described collectively by the plural "First Nations." To that extent, the MOA-AD, by
identifying the Bangsamoro people as "the First Nation" - suggesting its exclusive
entitlement to that designation - departs from the Canadian usage of the term.
The MOA-AD then mentions for the first time the "Bangsamoro Juridical Entity" (BJE) to
which it grants the authority and jurisdiction over the Ancestral Domain and Ancestral
Lands of the Bangsamoro.
B. TERRITORY
The territory of the Bangsamoro homeland is described as the land mass as well as the
maritime, terrestrial, fluvial and alluvial domains, including the aerial domain and the
atmospheric space above it, embracing the Mindanao-Sulu-Palawan geographic region.
More specifically, the core of the BJE is defined as the present geographic area of the
ARMM - thus constituting the following areas: Lanao del Sur, Maguindanao, Sulu, Tawi-
Tawi, Basilan, and Marawi City. Significantly, this core also includes certain
municipalities of Lanao del Norte that voted for inclusion in the ARMM in the 2001
plebiscite.
Outside of this core, the BJE is to cover other provinces, cities, municipalities and
barangays, which are grouped into two categories, Category A and Category B. Each of
these areas is to be subjected to a plebiscite to be held on different dates, years apart
from each other. Thus, Category A areas are to be subjected to a plebiscite not later
than twelve (12) months following the signing of the MOA-AD.40 Category B areas, also
called "Special Intervention Areas," on the other hand, are to be subjected to a
plebiscite twenty-five (25) years from the signing of a separate agreement - the
Comprehensive Compact.
The Parties to the MOA-AD stipulate that the BJE shall have jurisdiction over all natural
resources within its "internal waters," defined as extending fifteen (15) kilometers from
the coastline of the BJE area;42 that the BJE shall also have "territorial waters," which
shall stretch beyond the BJE internal waters up to the baselines of the Republic of the
Philippines (RP) south east and south west of mainland Mindanao; and that within these
territorial waters, the BJE and the "Central Government" (used interchangeably with RP)
shall exercise joint jurisdiction, authority and management over all natural resources.43
Notably, the jurisdiction over the internal waters is not similarly described as "joint."
The MOA-AD further provides for the sharing of minerals on the territorial waters
between the Central Government and the BJE, in favor of the latter, through production
sharing and economic cooperation agreement.44 The activities which the Parties are
allowed to conduct on the territorial waters are enumerated, among which are the
exploration and utilization of natural resources, regulation of shipping and fishing
activities, and the enforcement of police and safety measures.45 There is no similar
provision on the sharing of minerals and allowed activities with respect to the internal
waters of the BJE.
C. RESOURCES
The MOA-AD states that the BJE is free to enter into any economic cooperation and
trade relations with foreign countries and shall have the option to establish trade
missions in those countries. Such relationships and understandings, however, are not to
include aggression against the GRP. The BJE may also enter into environmental
cooperation agreements.
The external defense of the BJE is to remain the duty and obligation of the Central
Government. The Central Government is also bound to "take necessary steps to ensure
the BJE's participation in international meetings and events" like those of the ASEAN and
the specialized agencies of the UN. The BJE is to be entitled to participate in Philippine
official missions and delegations for the negotiation of border agreements or protocols
for environmental protection and equitable sharing of incomes and revenues involving
the bodies of water adjacent to or between the islands forming part of the ancestral
domain.
With regard to the right of exploring for, producing, and obtaining all potential sources
of energy, petroleum, fossil fuel, mineral oil and natural gas, the jurisdiction and control
thereon is to be vested in the BJE "as the party having control within its territorial
jurisdiction." This right carries the proviso that, "in times of national emergency, when
public interest so requires," the Central Government may, for a fixed period and under
reasonable terms as may be agreed upon by both Parties, assume or direct the
operation of such resources.
The sharing between the Central Government and the BJE of total production pertaining
to natural resources is to be 75:25 in favor of the BJE.
The MOA-AD provides that legitimate grievances of the Bangsamoro people arising from
any unjust dispossession of their territorial and proprietary rights, customary land
tenures, or their marginalization shall be acknowledged. Whenever restoration is no
longer possible, reparation is to be in such form as mutually determined by the Parties.
The BJE may modify or cancel the forest concessions, timber licenses, contracts or
agreements, mining concessions, Mineral Production and Sharing Agreements (MPSA),
Industrial Forest Management Agreements (IFMA), and other land tenure instruments
granted by the Philippine Government, including those issued by the present ARMM.
D. GOVERNANCE
The MOA-AD binds the Parties to invite a multinational third-party to observe and
monitor the implementation of the Comprehensive Compact. This compact is to embody
the "details for the effective enforcement" and "the mechanisms and modalities for the
actual implementation" of the MOA-AD. The MOA-AD explicitly provides that the
participation of the third party shall not in any way affect the status of the relationship
between the Central Government and the BJE.
The "associative" relationship between the Central Government and the BJE
The MOA-AD describes the relationship of the Central Government and the BJE as
"associative," characterized by shared authority and responsibility. And it states that the
structure of governance is to be based on executive, legislative, judicial, and
administrative institutions with defined powers and functions in the Comprehensive
Compact.
The MOA-AD provides that its provisions requiring "amendments to the existing legal
framework" shall take effect upon signing of the Comprehensive Compact and upon
effecting the aforesaid amendments, with due regard to the non-derogation of prior
agreements and within the stipulated timeframe to be contained in the Comprehensive
Compact. As will be discussed later, much of the present controversy hangs on the
legality of this provision.
The BJE is granted the power to build, develop and maintain its own institutions inclusive
of civil service, electoral, financial and banking, education, legislation, legal, economic,
police and internal security force, judicial system and correctional institutions, the details
of which shall be discussed in the negotiation of the comprehensive compact.
As stated early on, the MOA-AD was set to be signed on August 5, 2008 by Rodolfo
Garcia and Mohagher Iqbal, Chairpersons of the Peace Negotiating Panels of the GRP
and the MILF, respectively. Notably, the penultimate paragraph of the MOA-AD identifies
the signatories as "the representatives of the Parties," meaning the GRP and MILF
themselves, and not merely of the negotiating panels.53 In addition, the signature page
of the MOA-AD states that it is "WITNESSED BY" Datuk Othman Bin Abd Razak, Special
Adviser to the Prime Minister of Malaysia, "ENDORSED BY" Ambassador Sayed Elmasry,
Adviser to Organization of the Islamic Conference (OIC) Secretary General and Special
Envoy for Peace Process in Southern Philippines, and SIGNED "IN THE PRESENCE OF"
Dr. Albert G. Romulo, Secretary of Foreign Affairs of RP and Dato' Seri Utama Dr. Rais
Bin Yatim, Minister of Foreign Affairs, Malaysia, all of whom were scheduled to sign the
Agreement last August 5, 2008.
Annexed to the MOA-AD are two documents containing the respective lists cum maps of
the provinces, municipalities, and barangays under Categories A and B earlier mentioned
in the discussion on the strand on TERRITORY.
IV. PROCEDURAL ISSUES
A. RIPENESS
The power of judicial review is limited to actual cases or controversies. Courts decline to
issue advisory opinions or to resolve hypothetical or feigned problems, or mere
academic questions. The limitation of the power of judicial review to actual cases and
controversies defines the role assigned to the judiciary in a tripartite allocation of power,
to assure that the courts will not intrude into areas committed to the other branches of
government.
An actual case or controversy involves a conflict of legal rights, an assertion of opposite
legal claims, susceptible of judicial resolution as distinguished from a hypothetical or
abstract difference or dispute. There must be a contrariety of legal rights that can be
interpreted and enforced on the basis of existing law and jurisprudence. The Court can
decide the constitutionality of an act or treaty only when a proper case between
opposing parties is submitted for judicial determination.

Related to the requirement of an actual case or controversy is the requirement of

ripeness. A question is ripe for adjudication when the act being challenged has had a
direct adverse effect on the individual challenging it. For a case to be considered ripe for
adjudication, it is a prerequisite that something had then been accomplished or
performed by either branch before a court may come into the picture, and the petitioner
must allege the existence of an immediate or threatened injury to itself as a result of the
challenged action. He must show that he has sustained or is immediately in danger of
sustaining some direct injury as a result of the act complained of.
The Solicitor General argues that there is no justiciable controversy that is ripe for
judicial review in the present petitions, reasoning that
The unsigned MOA-AD is simply a list of consensus points subject to further negotiations
and legislative enactments as well as constitutional processes aimed at attaining a final
peaceful agreement. Simply put, the MOA-AD remains to be a proposal that does not
automatically create legally demandable rights and obligations until the list of operative
acts required have been duly complied with. x x x
In the cases at bar, it is respectfully submitted that this Honorable Court has no
authority to pass upon issues based on hypothetical or feigned constitutional problems
or interests with no concrete bases. Considering the preliminary character of the MOA-
AD, there are no concrete acts that could possibly violate petitioners' and intervenors'
rights since the acts complained of are mere contemplated steps toward the formulation
of a final peace agreement. Plainly, petitioners and intervenors' perceived injury, if at
all, is merely imaginary and illusory apart from being unfounded and based on mere
conjectures. (Underscoring supplied)
The Solicitor General cites the following provisions of the MOA-AD:
TERRITORYx x x x
2. Toward this end, the Parties enter into the following stipulations:x x x x
d. Without derogating from the requirements of prior agreements, the Government
stipulates to conduct and deliver, using all possible legal measures, within twelve (12)
months following the signing of the MOA-AD, a plebiscite covering the areas as
enumerated in the list and depicted in the map as Category A attached herein (the
"Annex"). The Annex constitutes an integral part of this framework agreement. Toward
this end, the Parties shall endeavor to complete the negotiations and resolve all
outstanding issues on the Comprehensive Compact within fifteen (15) months from the
signing of the MOA-AD.
x x x xGOVERNANCE x x x x
7. The Parties agree that mechanisms and modalities for the actual implementation of
this MOA-AD shall be spelt out in the Comprehensive Compact to mutually take such
steps to enable it to occur effectively.
Any provisions of the MOA-AD requiring amendments to the existing legal framework
shall come into force upon the signing of a Comprehensive Compact and upon effecting
the necessary changes to the legal framework with due regard to non-derogation of
prior agreements and within the stipulated timeframe to be contained in the
Comprehensive Compact. (Underscoring supplied)
The Solicitor General's arguments fail to persuade.
Concrete acts under the MOA-AD are not necessary to render the present controversy
ripe. In Pimentel, Jr. v. Aguirre, this Court held:
x x x [B]y the mere enactment of the questioned law or the approval of the challenged
action, the dispute is said to have ripened into a judicial controversy even without any
other overt act. Indeed, even a singular violation of the Constitution and/or the law is
enough to awaken judicial duty.x x x x
By the same token, when an act of the President, who in our constitutional scheme is a
coequal of Congress, is seriously alleged to have infringed the Constitution and the laws
x x x settling the dispute becomes the duty and the responsibility of the courts.
In Santa Fe Independent School District v. Doe,67 the United States Supreme Court
held that the challenge to the constitutionality of the school's policy allowing student-led
prayers and speeches before games was ripe for adjudication, even if no public prayer
had yet been led under the policy, because the policy was being challenged as
unconstitutional on its face.
That the law or act in question is not yet effective does not negate ripeness. For
example, in New York v. United States,69 decided in 1992, the United States Supreme
Court held that the action by the State of New York challenging the provisions of the
Low-Level Radioactive Waste Policy Act was ripe for adjudication even if the questioned
provision was not to take effect until January 1, 1996, because the parties agreed that
New York had to take immediate action to avoid the provision's consequences.
The present petitions pray for Certiorari, Prohibition, and Mandamus. Certiorari and
Prohibition are remedies granted by law when any tribunal, board or officer has acted, in
the case of certiorari, or is proceeding, in the case of prohibition, without or in excess of
its jurisdiction or with grave abuse of discretion amounting to lack or excess of
jurisdiction. Mandamus is a remedy granted by law when any tribunal, corporation,
board, officer or person unlawfully neglects the performance of an act which the law
specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully
excludes another from the use or enjoyment of a right or office to which such other is
entitled. Certiorari, Mandamus and Prohibition are appropriate remedies to raise
constitutional issues and to review and/or prohibit/nullify, when proper, acts of
legislative and executive officials.
The authority of the GRP Negotiating Panel is defined by Executive Order No. 3 (E.O. No.
3), issued on February 28, 2001.75 The said executive order requires that "[t]he
government's policy framework for peace, including the systematic approach and the
administrative structure for carrying out the comprehensive peace process x x x be
governed by this Executive Order."
The present petitions allege that respondents GRP Panel and PAPP Esperon drafted the
terms of the MOA-AD without consulting the local government units or communities
affected, nor informing them of the proceedings. As will be discussed in greater detail
later, such omission, by itself, constitutes a departure by respondents from their
mandate under E.O. No. 3.
Furthermore, the petitions allege that the provisions of the MOA-AD violate the
Constitution. The MOA-AD provides that "any provisions of the MOA-AD requiring
amendments to the existing legal framework shall come into force upon the signing of a
Comprehensive Compact and upon effecting the necessary changes to the legal
framework," implying an amendment of the Constitution to accommodate the MOA-AD.
This stipulation, in effect, guaranteed to the MILF the amendment of the Constitution.
Such act constitutes another violation of its authority. Again, these points will be
discussed in more detail later.

As the petitions allege acts or omissions on the part of respondent that exceed their
authority, by violating their duties under E.O. No. 3 and the provisions of the
Constitution and statutes, the petitions make a prima facie case for Certiorari,
Prohibition, and Mandamus, and an actual case or controversy ripe for adjudication
exists. When an act of a branch of government is seriously alleged to have infringed the
Constitution, it becomes not only the right but in fact the duty of the judiciary to settle
the dispute.
B. LOCUS STANDI
For a party to have locus standi, one must allege "such a personal stake in the outcome
of the controversy as to assure that concrete adverseness which sharpens the
presentation of issues upon which the court so largely depends for illumination of
difficult constitutional questions."
Because constitutional cases are often public actions in which the relief sought is likely
to affect other persons, a preliminary question frequently arises as to this interest in the
constitutional question raised.
When suing as a citizen, the person complaining must allege that he has been or is
about to be denied some right or privilege to which he is lawfully entitled or that he is
about to be subjected to some burdens or penalties by reason of the statute or act
complained of. When the issue concerns a public right, it is sufficient that the petitioner
is a citizen and has an interest in the execution of the laws.
For a taxpayer, one is allowed to sue where there is an assertion that public funds are
illegally disbursed or deflected to an illegal purpose, or that there is a wastage of public
funds through the enforcement of an invalid or unconstitutional law.82 The Court retains
discretion whether or not to allow a taxpayer's suit.
In the case of a legislator or member of Congress, an act of the Executive that injures
the institution of Congress causes a derivative but nonetheless substantial injury that
can be questioned by legislators. A member of the House of Representatives has
standing to maintain inviolate the prerogatives, powers and privileges vested by the
Constitution in his office.
An organization may be granted standing to assert the rights of its members, but the
mere invocation by the Integrated Bar of the Philippines or any member of the legal
profession of the duty to preserve the rule of law does not suffice to clothe it with
standing.
As regards a local government unit (LGU), it can seek relief in order to protect or
vindicate an interest of its own, and of the other LGUs.
Intervenors, meanwhile, may be given legal standing upon showing of facts that satisfy
the requirements of the law authorizing intervention,88 such as a legal interest in the
matter in litigation, or in the success of either of the parties.
In any case, the Court has discretion to relax the procedural technicality on locus standi,
given the liberal attitude it has exercised, highlighted in the case of David v. Macapagal-
Arroyo,89 where technicalities of procedure were brushed aside, the constitutional issues
raised being of paramount public interest or of transcendental importance deserving the
attention of the Court in view of their seriousness, novelty and weight as precedents.90
The Court's forbearing stance on locus standi on issues involving constitutional issues
has for its purpose the protection of fundamental rights.
In not a few cases, the Court, in keeping with its duty under the Constitution to
determine whether the other branches of government have kept themselves within the
limits of the Constitution and the laws and have not abused the discretion given them,
has brushed aside technical rules of procedure.
In the petitions at bar, petitioners Province of North Cotabato (G.R. No. 183591)
Province of Zamboanga del Norte (G.R. No. 183951), City of Iligan (G.R. No. 183893)
and City of Zamboanga (G.R. No. 183752) and petitioners-in-intervention Province of
Sultan Kudarat, City of Isabela and Municipality of Linamon have locus standi in view of
the direct and substantial injury that they, as LGUs, would suffer as their territories,
whether in whole or in part, are to be included in the intended domain of the BJE. These
petitioners allege that they did not vote for their inclusion in the ARMM which would be
expanded to form the BJE territory. Petitioners' legal standing is thus beyond doubt.
In G.R. No. 183962, petitioners Ernesto Maceda, Jejomar Binay and Aquilino Pimentel III
would have no standing as citizens and taxpayers for their failure to specify that they
would be denied some right or privilege or there would be wastage of public funds. The
fact that they are a former Senator, an incumbent mayor of Makati City, and a resident
of Cagayan de Oro, respectively, is of no consequence. Considering their invocation of
the transcendental importance of the issues at hand, however, the Court grants them
standing.
Intervenors Franklin Drilon and Adel Tamano, in alleging their standing as taxpayers,
assert that government funds would be expended for the conduct of an illegal and
unconstitutional plebiscite to delineate the BJE territory. On that score alone, they can
be given legal standing. Their allegation that the issues involved in these petitions are of
"undeniable transcendental importance" clothes them with added basis for their
personality to intervene in these petitions.
With regard to Senator Manuel Roxas, his standing is premised on his being a member
of the Senate and a citizen to enforce compliance by respondents of the public's
constitutional right to be informed of the MOA-AD, as well as on a genuine legal interest
in the matter in litigation, or in the success or failure of either of the parties. He thus
possesses the requisite standing as an intervenor.
With respect to Intervenors Ruy Elias Lopez, as a former congressman of the 3rd district
of Davao City, a taxpayer and a member of the Bagobo tribe; Carlo B. Gomez, et al., as
members of the IBP Palawan chapter, citizens and taxpayers; Marino Ridao, as taxpayer,
resident and member of the Sangguniang Panlungsod of Cotabato City; and Kisin
Buxani, as taxpayer, they failed to allege any proper legal interest in the present
petitions. Just the same, the Court exercises its discretion to relax the procedural
technicality on locus standi given the paramount public interest in the issues at hand.
Intervening respondents Muslim Multi-Sectoral Movement for Peace and Development,
an advocacy group for justice and the attainment of peace and prosperity in Muslim
Mindanao; and Muslim Legal Assistance Foundation Inc., a non-government organization
of Muslim lawyers, allege that they stand to be benefited or prejudiced, as the case may
be, in the resolution of the petitions concerning the MOA-AD, and prays for the denial of
the petitions on the grounds therein stated. Such legal interest suffices to clothe them
with standing.
B. MOOTNESS

Respondents insist that the present petitions have been rendered moot with the
satisfaction of all the reliefs prayed for by petitioners and the subsequent
pronouncement of the Executive Secretary that "[n]o matter what the Supreme Court
ultimately decides[,] the government will not sign the MOA."
In lending credence to this policy decision, the Solicitor General points out that the
President had already disbanded the GRP Peace Panel.
In David v. Macapagal-Arroyo, this Court held that the "moot and academic" principle
not being a magical formula that automatically dissuades courts in resolving a case, it
will decide cases, otherwise moot and academic, if it finds that (a) there is a grave
violation of the Constitution; (b) the situation is of exceptional character and paramount
public interest is involved; (c) the constitutional issue raised requires formulation of
controlling principles to guide the bench, the bar, and the public; and (d) the case is
capable of repetition yet evading review.
Another exclusionary circumstance that may be considered is where there is a voluntary
cessation of the activity complained of by the defendant or doer. Thus, once a suit is
filed and the doer voluntarily ceases the challenged conduct, it does not automatically
deprive the tribunal of power to hear and determine the case and does not render the
case moot especially when the plaintiff seeks damages or prays for injunctive relief
against the possible recurrence of the violation.
The present petitions fall squarely into these exceptions to thus thrust them into the
domain of judicial review. The grounds cited above in David are just as applicable in the
present cases as they were, not only in David, but also in Province of Batangas v.
Romulo and Manalo v. Calderon where the Court similarly decided them on the merits,
supervening events that would ordinarily have rendered the same moot notwithstanding.
Petitions not mooted
Contrary then to the asseverations of respondents, the non-signing of the MOA-AD and
the eventual dissolution of the GRP Peace Panel did not moot the present petitions. It
bears emphasis that the signing of the MOA-AD did not push through due to the Court's
issuance of a Temporary Restraining Order.
Contrary too to respondents' position, the MOA-AD cannot be considered a mere "list of
consensus points," especially given its nomenclature, the need to have it signed or
initialed by all the parties concerned on August 5, 2008, and the far-reaching
Constitutional implications of these "consensus points," foremost of which is the creation
of the BJE.
In fact, as what will, in the main, be discussed, there is a commitment on the part of
respondents to amend and effect necessary changes to the existing legal framework for
certain provisions of the MOA-AD to take effect. Consequently, the present petitions are
not confined to the terms and provisions of the MOA-AD, but to other on-going and
future negotiations and agreements necessary for its realization. The petitions have not,
therefore, been rendered moot and academic simply by the public disclosure of the
MOA-AD,102 the manifestation that it will not be signed as well as the disbanding of the
GRP Panel not withstanding.
Petitions are imbued with paramount public interest
There is no gainsaying that the petitions are imbued with paramount public interest,
involving a significant part of the country's territory and the wide-ranging political
modifications of affected LGUs. The assertion that the MOA-AD is subject to further legal
enactments including possible Constitutional amendments more than ever provides
impetus for the Court to formulate controlling principles to guide the bench, the bar, the
public and, in this case, the government and its negotiating entity.
Respondents cite Suplico v. NEDA, et al.103 where the Court did not "pontificat[e] on
issues which no longer legitimately constitute an actual case or controversy [as this] will
do more harm than good to the nation as a whole."
The present petitions must be differentiated from Suplico. Primarily, in Suplico, what
was assailed and eventually cancelled was a stand-alone government procurement
contract for a national broadband network involving a one-time contractual relation
between two parties-the government and a private foreign corporation. As the issues
therein involved specific government procurement policies and standard principles on
contracts, the majority opinion in Suplico found nothing exceptional therein, the factual
circumstances being peculiar only to the transactions and parties involved in the
controversy.
The MOA-AD is part of a series of agreements
In the present controversy, the MOA-AD is a significant part of a series of agreements
necessary to carry out the Tripoli Agreement 2001. The MOA-AD which dwells on the
Ancestral Domain Aspect of said Tripoli Agreement is the third such component to be
undertaken following the implementation of the Security Aspect in August 2001 and the
Humanitarian, Rehabilitation and Development Aspect in May 2002.
Accordingly, even if the Executive Secretary, in his Memorandum of August 28, 2008 to
the Solicitor General, has stated that "no matter what the Supreme Court ultimately
decides[,] the government will not sign the MOA[-AD]," mootness will not set in in light
of the terms of the Tripoli Agreement 2001.
Need to formulate principles-guidelines
Surely, the present MOA-AD can be renegotiated or another one will be drawn up to
carry out the Ancestral Domain Aspect of the Tripoli Agreement 2001, in another or in
any form, which could contain similar or significantly drastic provisions. While the Court
notes the word of the Executive Secretary that the government "is committed to
securing an agreement that is both constitutional and equitable because that is the only
way that long-lasting peace can be assured," it is minded to render a decision on the
merits in the present petitions to formulate controlling principles to guide the bench, the
bar, the public and, most especially, the government in negotiating with the MILF
regarding Ancestral Domain.
Respondents invite the Court's attention to the separate opinion of then Chief Justice
Artemio Panganiban in Sanlakas v. Reyes104 in which he stated that the doctrine of
"capable of repetition yet evading review" can override mootness, "provided the party
raising it in a proper case has been and/or continue to be prejudiced or damaged as a
direct result of their issuance." They contend that the Court must have jurisdiction over
the subject matter for the doctrine to be invoked.
The present petitions all contain prayers for Prohibition over which this Court exercises
original jurisdiction. While G.R. No. 183893 (City of Iligan v. GRP) is a petition for
Injunction and Declaratory Relief, the Court will treat it as one for Prohibition as it has
far reaching implications and raises questions that need to be resolved.105 At all events,
the Court has jurisdiction over most if not the rest of the petitions.

Indeed, the present petitions afford a proper venue for the Court to again apply the
doctrine immediately referred to as what it had done in a number of landmark cases.106
There is a reasonable expectation that petitioners, particularly the Provinces of North
Cotabato, Zamboanga del Norte and Sultan Kudarat, the Cities of Zamboanga, Iligan
and Isabela, and the Municipality of Linamon, will again be subjected to the same
problem in the future as respondents' actions are capable of repetition, in another or any
form.
It is with respect to the prayers for Mandamus that the petitions have become moot,
respondents having, by Compliance of August 7, 2008, provided this Court and
petitioners with official copies of the final draft of the MOA-AD and its annexes. Too,
intervenors have been furnished, or have procured for themselves, copies of the MOA-
AD.
V. SUBSTANTIVE ISSUES
As culled from the Petitions and Petitions-in-Intervention, there are basically two
SUBSTANTIVE issues to be resolved, one relating to the manner in which the MOA-AD
was negotiated and finalized, the other relating to its provisions, viz:
1. Did respondents violate constitutional and statutory provisions on public consultation
and the right to information when they negotiated and later initialed the MOA-AD?
2. Do the contents of the MOA-AD violate the Constitution and the laws?
ON THE FIRST SUBSTANTIVE ISSUE
Petitioners invoke their constitutional right to information on matters of public concern,
as provided in Section 7, Article III on the Bill of Rights:
Sec. 7. The right of the people to information on matters of public concern shall be
recognized. Access to official records, and to documents, and papers pertaining to
official acts, transactions, or decisions, as well as to government research data used as
basis for policy development, shall be afforded the citizen, subject to such limitations as
may be provided by law.
As early as 1948, in Subido v. Ozaeta, the Court has recognized the statutory right to
examine and inspect public records, a right which was eventually accorded constitutional
status.
The right of access to public documents, as enshrined in both the 1973 Constitution and
the 1987 Constitution, has been recognized as a self-executory constitutional right.
In the 1976 case of Baldoza v. Hon. Judge Dimaano, the Court ruled that access to
public records is predicated on the right of the people to acquire information on matters
of public concern since, undoubtedly, in a democracy, the pubic has a legitimate interest
in matters of social and political significance.
x x x The incorporation of this right in the Constitution is a recognition of the
fundamental role of free exchange of information in a democracy. There can be no
realistic perception by the public of the nation's problems, nor a meaningful democratic
decision-making if they are denied access to information of general interest. Information
is needed to enable the members of society to cope with the exigencies of the times. As
has been aptly observed: "Maintaining the flow of such information depends on
protection for both its acquisition and its dissemination since, if either process is
interrupted, the flow inevitably ceases." x x x
In the same way that free discussion enables members of society to cope with the
exigencies of their time, access to information of general interest aids the people in
democratic decision-making by giving them a better perspective of the vital issues
confronting the nation so that they may be able to criticize and participate in the affairs
of the government in a responsible, reasonable and effective manner. It is by ensuring
an unfettered and uninhibited exchange of ideas among a well-informed public that a
government remains responsive to the changes desired by the people.
The MOA-AD is a matter of public concern
That the subject of the information sought in the present cases is a matter of public
concern faces no serious challenge. In fact, respondents admit that the MOA-AD is
indeed of public concern. In previous cases, the Court found that the regularity of real
estate transactions entered in the Register of Deeds, the need for adequate notice to the
public of the various laws, the civil service eligibility of a public employee, the proper
management of GSIS funds allegedly used to grant loans to public officials, the recovery
of the Marcoses' alleged ill-gotten wealth, and the identity of party-list nominees, among
others, are matters of public concern. Undoubtedly, the MOA-AD subject of the present
cases is of public concern, involving as it does the sovereignty and territorial integrity of
the State, which directly affects the lives of the public at large.
Matters of public concern covered by the right to information include steps and
negotiations leading to the consummation of the contract. In not distinguishing as to the
executory nature or commercial character of agreements, the Court has categorically
ruled:
x x x [T]he right to information "contemplates inclusion of negotiations leading to the
consummation of the transaction." Certainly, a consummated contract is not a
requirement for the exercise of the right to information. Otherwise, the people can never
exercise the right if no contract is consummated, and if one is consummated, it may be
too late for the public to expose its defects.
Requiring a consummated contract will keep the public in the dark until the contract,
which may be grossly disadvantageous to the government or even illegal, becomes fait
accompli. This negates the State policy of full transparency on matters of public concern,
a situation which the framers of the Constitution could not have intended. Such a
requirement will prevent the citizenry from participating in the public discussion of any
proposed contract, effectively truncating a basic right enshrined in the Bill of Rights. We
can allow neither an emasculation of a constitutional right, nor a retreat by the State of
its avowed "policy of full disclosure of all its transactions involving public interest."
(Emphasis and italics in the original)
Intended as a "splendid symmetry" to the right to information under the Bill of Rights is
the policy of public disclosure under Section 28, Article II of the Constitution reading:
Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and
implements a policy of full public disclosure of all its transactions involving public
interest.
The policy of full public disclosure enunciated in above-quoted Section 28 complements
the right of access to information on matters of public concern found in the Bill of Rights.
The right to information guarantees the right of the people to demand information, while
Section 28 recognizes the duty of officialdom to give information even if nobody
demands.
The policy of public disclosure establishes a concrete ethical principle for the conduct of
public affairs in a genuinely open democracy, with the people's right to know as the
centerpiece. It is a mandate of the State to be accountable by following such policy.
These provisions are vital to the exercise of the freedom of expression and essential to
hold public officials at all times accountable to the people.

Whether Section 28 is self-executory, the records of the deliberations of the

Constitutional Commission so disclose:
MR. SUAREZ. And since this is not self-executory, this policy will not be enunciated or
will not be in force and effect until after Congress shall have provided it.
MR. OPLE. I expect it to influence the climate of public ethics immediately but, of course,
the implementing law will have to be enacted by Congress, Mr. Presiding Officer.
The following discourse, after Commissioner Hilario Davide, Jr., sought clarification on
the issue, is enlightening.
MR. DAVIDE. I would like to get some clarifications on this. Mr. Presiding Officer, did I
get the Gentleman correctly as having said that this is not a self-executing provision? It
would require a legislation by Congress to implement?
MR. OPLE. Yes. Originally, it was going to be self-executing, but I accepted an
amendment from Commissioner Regalado, so that the safeguards on national interest
are modified by the clause "as may be provided by law"
MR. DAVIDE. But as worded, does it not mean that this will immediately take effect and
Congress may provide for reasonable safeguards on the sole ground national interest?
MR. OPLE. Yes. I think so, Mr. Presiding Officer, I said earlier that it should immediately
influence the climate of the conduct of public affairs but, of course, Congress here may
no longer pass a law revoking it, or if this is approved, revoking this principle, which is
inconsistent with this policy. (Emphasis supplied)
Indubitably, the effectivity of the policy of public disclosure need not await the passing
of a statute. As Congress cannot revoke this principle, it is merely directed to provide for
"reasonable safeguards." The complete and effective exercise of the right to information
necessitates that its complementary provision on public disclosure derive the same self-
executory nature. Since both provisions go hand-in-hand, it is absurd to say that the
broader130 right to information on matters of public concern is already enforceable
while the correlative duty of the State to disclose its transactions involving public
interest is not enforceable until there is an enabling law. Respondents cannot thus point
to the absence of an implementing legislation as an excuse in not effecting such policy.
An essential element of these freedoms is to keep open a continuing dialogue or process
of communication between the government and the people. It is in the interest of the
State that the channels for free political discussion be maintained to the end that the
government may perceive and be responsive to the people's will. Envisioned to be
corollary to the twin rights to information and disclosure is the design for feedback
mechanisms.
MS. ROSARIO BRAID. Yes. And lastly, Mr. Presiding Officer, will the people be able to
participate? Will the government provide feedback mechanisms so that the people can
participate and can react where the existing media facilities are not able to provide full
feedback mechanisms to the government? I suppose this will be part of the government
implementing operational mechanisms.
MR. OPLE. Yes. I think through their elected representatives and that is how these
courses take place. There is a message and a feedback, both ways.
xxxx
MS. ROSARIO BRAID. Mr. Presiding Officer, may I just make one last sentence?
I think when we talk about the feedback network, we are not talking about public
officials but also network of private business o[r] community-based organizations that
will be reacting. As a matter of fact, we will put more credence or credibility on the
private network of volunteers and voluntary community-based organizations. So I do not
think we are afraid that there will be another OMA in the making. (Emphasis supplied)
The imperative of a public consultation, as a species of the right to information, is
evident in the "marching orders" to respondents. The mechanics for the duty to disclose
information and to conduct public consultation regarding the peace agenda and process
is manifestly provided by E.O. No. 3. The preambulatory clause of E.O. No. 3 declares
that there is a need to further enhance the contribution of civil society to the
comprehensive peace process by institutionalizing the people's participation.
One of the three underlying principles of the comprehensive peace process is that it
"should be community-based, reflecting the sentiments, values and principles important
to all Filipinos" and "shall be defined not by the government alone, nor by the different
contending groups only, but by all Filipinos as one community."134 Included as a
component of the comprehensive peace process is consensus-building and
empowerment for peace, which includes "continuing consultations on both national and
local levels to build consensus for a peace agenda and process, and the mobilization and
facilitation of people's participation in the peace process."
Clearly, E.O. No. 3 contemplates not just the conduct of a plebiscite to effectuate
"continuing" consultations, contrary to respondents' position that plebiscite is "more
than sufficient consultation."
Further, E.O. No. 3 enumerates the functions and responsibilities of the PAPP, one of
which is to "[c]onduct regular dialogues with the National Peace Forum (NPF) and other
peace partners to seek relevant information, comments, recommendations as well as to
render appropriate and timely reports on the progress of the comprehensive peace
process." E.O. No. 3 mandates the establishment of the NPF to be "the principal forum
for the PAPP to consult with and seek advi[c]e from the peace advocates, peace partners
and concerned sectors of society on both national and local levels, on the
implementation of the comprehensive peace process, as well as for government[-]civil
society dialogue and consensus-building on peace agenda and initiatives."
In fine, E.O. No. 3 establishes petitioners' right to be consulted on the peace agenda, as
a corollary to the constitutional right to information and disclosure.
PAPP Esperon committed grave abuse of discretion
The PAPP committed grave abuse of discretion when he failed to carry out the pertinent
consultation. The furtive process by which the MOA-AD was designed and crafted runs
contrary to and in excess of the legal authority, and amounts to a whimsical, capricious,
oppressive, arbitrary and despotic exercise thereof.
The Court may not, of course, require the PAPP to conduct the consultation in a
particular way or manner. It may, however, require him to comply with the law and
discharge the functions within the authority granted by the President.
Petitioners are not claiming a seat at the negotiating table, contrary to respondents'
retort in justifying the denial of petitioners' right to be consulted. Respondents' stance
manifests the manner by which they treat the salient provisions of E.O. No. 3 on
people's participation. Such disregard of the express mandate of the President is not
much different from superficial conduct toward token provisos that border on classic lip
service. It illustrates a gross evasion of positive duty and a virtual refusal to perform the
duty enjoined.
As for respondents' invocation of the doctrine of executive privilege, it is not tenable
under the premises. The argument defies sound reason when contrasted with E.O. No.
3's explicit provisions on continuing consultation and dialogue on both national and local
levels. The executive order even recognizes the exercise of the public's right even before
the GRP makes its official recommendations or before the government proffers its
definite propositions. It bear emphasis that E.O. No. 3 seeks to elicit relevant advice,
information, comments and recommendations from the people through dialogue.
AT ALL EVENTS, respondents effectively waived the defense of executive privilege in
view of their unqualified disclosure of the official copies of the final draft of the MOA-AD.
By unconditionally complying with the Court's August 4, 2008 Resolution, without a
prayer for the document's disclosure in camera, or without a manifestation that it was
complying therewith ex abundante ad cautelam.
Petitioners' assertion that the Local Government Code (LGC) of 1991 declares it a State
policy to "require all national agencies and offices to conduct periodic consultations with
appropriate local government units, non-governmental and people's organizations, and
other concerned sectors of the community before any project or program is implemented
in their respective jurisdictions" is well-taken. The LGC chapter on intergovernmental
relations puts flesh into this avowed policy:
Prior Consultations Required. - No project or program shall be implemented by
government authorities unless the consultations mentioned in Sections 2 (c) and 26
hereof are complied with, and prior approval of the sanggunian concerned is obtained:
Provided, That occupants in areas where such projects are to be implemented shall not
be evicted unless appropriate relocation sites have been provided, in accordance with
the provisions of the Constitution. (Italics and underscoring supplied)
In Lina, Jr. v. Hon. Paño,144 the Court held that the above-stated policy and above-
quoted provision of the LGU apply only to national programs or projects which are to be
implemented in a particular local community. Among the programs and projects covered
are those that are critical to the environment and human ecology including those that
may call for the eviction of a particular group of people residing in the locality where
these will be implemented.145 The MOA-AD is one peculiar program that unequivocally
and unilaterally vests ownership of a vast territory to the Bangsamoro people, which
could pervasively and drastically result to the diaspora or displacement of a great
number of inhabitants from their total environment.
With respect to the indigenous cultural communities/indigenous peoples (ICCs/IPs),
whose interests are represented herein by petitioner Lopez and are adversely affected
by the MOA-AD, the ICCs/IPs have, under the IPRA, the right to participate fully at all
levels of decision-making in matters which may affect their rights, lives and
destinies.147 The MOA-AD, an instrument recognizing ancestral domain, failed to justify
its non-compliance with the clear-cut mechanisms ordained in said Act,148 which
entails, among other things, the observance of the free and prior informed consent of
the ICCs/IPs.
Notably, the IPRA does not grant the Executive Department or any government agency
the power to delineate and recognize an ancestral domain claim by mere agreement or
compromise. The recognition of the ancestral domain is the raison d'etre of the MOA-AD,
without which all other stipulations or "consensus points" necessarily must fail. In
proceeding to make a sweeping declaration on ancestral domain, without complying with
the IPRA, which is cited as one of the TOR of the MOA-AD, respondents clearly
transcended the boundaries of their authority. As it seems, even the heart of the MOA-
AD is still subject to necessary changes to the legal framework. While paragraph 7 on
Governance suspends the effectivity of all provisions requiring changes to the legal
framework, such clause is itself invalid, as will be discussed in the following section.
Indeed, ours is an open society, with all the acts of the government subject to public
scrutiny and available always to public cognizance. This has to be so if the country is to
remain democratic, with sovereignty residing in the people and all government authority
emanating from them.
ON THE SECOND SUBSTANTIVE ISSUE
With regard to the provisions of the MOA-AD, there can be no question that they cannot
all be accommodated under the present Constitution and laws. Respondents have
admitted as much in the oral arguments before this Court, and the MOA-AD itself
recognizes the need to amend the existing legal framework to render effective at least
some of its provisions. Respondents, nonetheless, counter that the MOA-AD is free of
any legal infirmity because any provisions therein which are inconsistent with the
present legal framework will not be effective until the necessary changes to that
framework are made. The validity of this argument will be considered later. For now, the
Court shall pass upon how the MOA-AD is inconsistent with the Constitution and laws as
presently worded.
In general, the objections against the MOA-AD center on the extent of the powers
conceded therein to the BJE. Petitioners assert that the powers granted to the BJE
exceed those granted to any local government under present laws, and even go beyond
those of the present ARMM. Before assessing some of the specific powers that would
have been vested in the BJE, however, it would be useful to turn first to a general idea
that serves as a unifying link to the different provisions of the MOA-AD, namely, the
international law concept of association. Significantly, the MOA-AD explicitly alludes to
this concept, indicating that the Parties actually framed its provisions with it in mind.
Association is referred to in paragraph 3 on TERRITORY, paragraph 11 on RESOURCES,
and paragraph 4 on GOVERNANCE. It is in the last mentioned provision, however, that
the MOA-AD most clearly uses it to describe the envisioned relationship between the BJE
and the Central Government.
4. The relationship between the Central Government and the Bangsamoro juridical entity
shall be associative characterized by shared authority and responsibility with a structure
of governance based on executive, legislative, judicial and administrative institutions
with defined powers and functions in the comprehensive compact. A period of transition
shall be established in a comprehensive peace compact specifying the relationship
between the Central Government and the BJE. (Emphasis and underscoring supplied)
The nature of the "associative" relationship may have been intended to be defined more
precisely in the still to be forged Comprehensive Compact. Nonetheless, given that there
is a concept of "association" in international law, and the MOA-AD - by its inclusion of
international law instruments in its TOR- placed itself in an international legal context,
that concept of association may be brought to bear in understanding the use of the term
"associative" in the MOA-AD.

Keitner and Reisman state that

[a]n association is formed when two states of unequal power voluntarily establish
durable links. In the basic model, one state, the associate, delegates certain
responsibilities to the other, the principal, while maintaining its international status as a
state. Free associations represent a middle ground between integration and
independence. x x x150 (Emphasis and underscoring supplied)
For purposes of illustration, the Republic of the Marshall Islands and the Federated
States of Micronesia (FSM), formerly part of the U.S.-administered Trust Territory of the
Pacific Islands, are associated states of the U.S. pursuant to a Compact of Free
Association. The currency in these countries is the U.S. dollar, indicating their very close
ties with the U.S., yet they issue their own travel documents, which is a mark of their
statehood. Their international legal status as states was confirmed by the UN Security
Council and by their admission to UN membership.
According to their compacts of free association, the Marshall Islands and the FSM
generally have the capacity to conduct foreign affairs in their own name and right, such
capacity extending to matters such as the law of the sea, marine resources, trade,
banking, postal, civil aviation, and cultural relations. The U.S. government, when
conducting its foreign affairs, is obligated to consult with the governments of the
Marshall Islands or the FSM on matters which it (U.S. government) regards as relating
to or affecting either government.
In the event of attacks or threats against the Marshall Islands or the FSM, the U.S.
government has the authority and obligation to defend them as if they were part of U.S.
territory. The U.S. government, moreover, has the option of establishing and using
military areas and facilities within these associated states and has the right to bar the
military personnel of any third country from having access to these territories for
military purposes.
It bears noting that in U.S. constitutional and international practice, free association is
understood as an international association between sovereigns. The Compact of Free
Association is a treaty which is subordinate to the associated nation's national
constitution, and each party may terminate the association consistent with the right of
independence. It has been said that, with the admission of the U.S.-associated states to
the UN in 1990, the UN recognized that the American model of free association is
actually based on an underlying status of independence.
In international practice, the "associated state" arrangement has usually been used as a
transitional device of former colonies on their way to full independence. Examples of
states that have passed through the status of associated states as a transitional phase
are Antigua, St. Kitts-Nevis-Anguilla, Dominica, St. Lucia, St. Vincent and Grenada. All
have since become independent states.
Back to the MOA-AD, it contains many provisions which are consistent with the
international legal concept of association, specifically the following: the BJE's capacity to
enter into economic and trade relations with foreign countries, the commitment of the
Central Government to ensure the BJE's participation in meetings and events in the
ASEAN and the specialized UN agencies, and the continuing responsibility of the Central
Government over external defense. Moreover, the BJE's right to participate in Philippine
official missions bearing on negotiation of border agreements, environmental protection,
and sharing of revenues pertaining to the bodies of water adjacent to or between the
islands forming part of the ancestral domain, resembles the right of the governments of
FSM and the Marshall Islands to be consulted by the U.S. government on any foreign
affairs matter affecting them.
These provisions of the MOA indicate, among other things, that the Parties aimed to vest
in the BJE the status of an associated state or, at any rate, a status closely
approximating it.
The concept of association is not recognized under the present Constitution
No province, city, or municipality, not even the ARMM, is recognized under our laws as
having an "associative" relationship with the national government. Indeed, the concept
implies powers that go beyond anything ever granted by the Constitution to any local or
regional government. It also implies the recognition of the associated entity as a state.
The Constitution, however, does not contemplate any state in this jurisdiction other than
the Philippine State, much less does it provide for a transitory status that aims to
prepare any part of Philippine territory for independence.
Even the mere concept animating many of the MOA-AD's provisions, therefore, already
requires for its validity the amendment of constitutional provisions, specifically the
following provisions of Article X:
SECTION 1. The territorial and political subdivisions of the Republic of the Philippines are
the provinces, cities, municipalities, and barangays. There shall be autonomous regions
in Muslim Mindanao and the Cordilleras as hereinafter provided.
SECTION 15. There shall be created autonomous regions in Muslim Mindanao and in the
Cordilleras consisting of provinces, cities, municipalities, and geographical areas sharing
common and distinctive historical and cultural heritage, economic and social structures,
and other relevant characteristics within the framework of this Constitution and the
national sovereignty as well as territorial integrity of the Republic of the Philippines.
The BJE is a far more powerful entity than the autonomous region recognized in the
Constitution
It is not merely an expanded version of the ARMM, the status of its relationship with the
national government being fundamentally different from that of the ARMM. Indeed, BJE
is a state in all but name as it meets the criteria of a state laid down in the Montevideo
Convention, namely, a permanent population, a defined territory, a government, and a
capacity to enter into relations with other states.
Even assuming arguendo that the MOA-AD would not necessarily sever any portion of
Philippine territory, the spirit animating it - which has betrayed itself by its use of the
concept of association - runs counter to the national sovereignty and territorial integrity
of the Republic.
The defining concept underlying the relationship between the national government and
the BJE being itself contrary to the present Constitution, it is not surprising that many of
the specific provisions of the MOA-AD on the formation and powers of the BJE are in
conflict with the Constitution and the laws.
Article X, Section 18 of the Constitution provides that "[t]he creation of the autonomous
region shall be effective when approved by a majority of the votes cast by the
constituent units in a plebiscite called for the purpose, provided that only provinces,
cities, and geographic areas voting favorably in such plebiscite shall be included in the
autonomous region." (Emphasis supplied)

As reflected above, the BJE is more of a state than an autonomous region. But even
assuming that it is covered by the term "autonomous region" in the constitutional
provision just quoted, the MOA-AD would still be in conflict with it. Under paragraph 2(c)
on TERRITORY in relation to 2(d) and 2(e), the present geographic area of the ARMM
and, in addition, the municipalities of Lanao del Norte which voted for inclusion in the
ARMM during the 2001 plebiscite - Baloi, Munai, Nunungan, Pantar, Tagoloan and
Tangkal - are automatically part of the BJE without need of another plebiscite, in
contrast to the areas under Categories A and B mentioned earlier in the overview. That
the present components of the ARMM and the above-mentioned municipalities voted for
inclusion therein in 2001, however, does not render another plebiscite unnecessary
under the Constitution, precisely because what these areas voted for then was their
inclusion in the ARMM, not the BJE.
The MOA-AD, moreover, would not comply with Article X, Section 20 of the Constitution
since that provision defines the powers of autonomous regions as follows:
SECTION 20. Within its territorial jurisdiction and subject to the provisions of this
Constitution and national laws, the organic act of autonomous regions shall provide for
legislative powers over:
(1) Administrative organization;
(2) Creation of sources of revenues;
(3) Ancestral domain and natural resources;
(4) Personal, family, and property relations;
(5) Regional urban and rural planning development;
(6) Economic, social, and tourism development;
(7) Educational policies;
(8) Preservation and development of the cultural heritage; and
(9) Such other matters as may be authorized by law for the promotion of the general
welfare of the people of the region. (Underscoring supplied)
Again on the premise that the BJE may be regarded as an autonomous region, the MOA-
AD would require an amendment that would expand the above-quoted provision. The
mere passage of new legislation pursuant to sub-paragraph No. 9 of said constitutional
provision would not suffice, since any new law that might vest in the BJE the powers
found in the MOA-AD must, itself, comply with other provisions of the Constitution. It
would not do, for instance, to merely pass legislation vesting the BJE with treaty-making
power in order to accommodate paragraph 4 of the strand on RESOURCES which states:
"The BJE is free to enter into any economic cooperation and trade relations with foreign
countries: provided, however, that such relationships and understandings do not include
aggression against the Government of the Republic of the Philippines x x x." Under our
constitutional system, it is only the President who has that power. Pimentel v. Executive
Secretary instructs:
In our system of government, the President, being the head of state, is regarded as the
sole organ and authority in external relations and is the country's sole representative
with foreign nations. As the chief architect of foreign policy, the President acts as the
country's mouthpiece with respect to international affairs. Hence, the President is vested
with the authority to deal with foreign states and governments, extend or withhold
recognition, maintain diplomatic relations, enter into treaties, and otherwise transact the
business of foreign relations. In the realm of treaty-making, the President has the sole
authority to negotiate with other states. (Emphasis and underscoring supplied)
Article II, Section 22 of the Constitution must also be amended if the scheme envisioned
in the MOA-AD is to be effected. That constitutional provision states: "The State
recognizes and promotes the rights of indigenous cultural communities within the
framework of national unity and development." (Underscoring supplied) An associative
arrangement does not uphold national unity. While there may be a semblance of unity
because of the associative ties between the BJE and the national government, the act of
placing a portion of Philippine territory in a status which, in international practice, has
generally been a preparation for independence, is certainly not conducive to national
unity.
Besides being irreconcilable with the Constitution, the MOA-AD is also inconsistent with
prevailing statutory law, among which are R.A. No. 9054156 or the Organic Act of the
ARMM, and the IPRA.
Article X, Section 3 of the Organic Act of the ARMM is a bar to the adoption of the
definition of "Bangsamoro people" used in the MOA-AD. Paragraph 1 on Concepts and
Principles states:
1. It is the birthright of all Moros and all Indigenous peoples of Mindanao to identify
themselves and be accepted as "Bangsamoros". The Bangsamoro people refers to those
who are natives or original inhabitants of Mindanao and its adjacent islands including
Palawan and the Sulu archipelago at the time of conquest or colonization of its
descendants whether mixed or of full blood. Spouses and their descendants are
classified as Bangsamoro. The freedom of choice of the Indigenous people shall be
respected. (Emphasis and underscoring supplied)
This use of the term Bangsamoro sharply contrasts with that found in the Article X,
Section 3 of the Organic Act, which, rather than lumping together the identities of the
Bangsamoro and other indigenous peoples living in Mindanao, clearly distinguishes
between Bangsamoro people and Tribal peoples, as follows:
"As used in this Organic Act, the phrase "indigenous cultural community" refers to
Filipino citizens residing in the autonomous region who are:
(a) Tribal peoples. These are citizens whose social, cultural and economic conditions
distinguish them from other sectors of the national community; and
(b) Bangsa Moro people. These are citizens who are believers in Islam and who have
retained some or all of their own social, economic, cultural, and political institutions."
Respecting the IPRA, it lays down the prevailing procedure for the delineation and
recognition of ancestral domains. The MOA-AD's manner of delineating the ancestral
domain of the Bangsamoro people is a clear departure from that procedure. By
paragraph 1 of Territory, the Parties simply agree that, subject to the delimitations in
the agreed Schedules, "[t]he Bangsamoro homeland and historic territory refer to the
land mass as well as the maritime, terrestrial, fluvial and alluvial domains, and the aerial
domain, the atmospheric space above it, embracing the Mindanao-Sulu-Palawan
geographic region."
Chapter VIII of the IPRA, on the other hand, lays down a detailed procedure, as
illustrated in the following provisions thereof:
SECTION 52. Delineation Process. - The identification and delineation of ancestral
domains shall be done in accordance with the following procedures:x x x x
b) Petition for Delineation. - The process of delineating a specific perimeter may be
initiated by the NCIP with the consent of the ICC/IP concerned, or through a Petition for
Delineation filed with the NCIP, by a majority of the members of the ICCs/IPs;
c) Delineation Proper. - The official delineation of ancestral domain boundaries including
census of all community members therein, shall be immediately undertaken by the
Ancestral Domains Office upon filing of the application by the ICCs/IPs concerned.
Delineation will be done in coordination with the community concerned and shall at all
times include genuine involvement and participation by the members of the communities
concerned;
d) Proof Required. - Proof of Ancestral Domain Claims shall include the testimony of
elders or community under oath, and other documents directly or indirectly attesting to
the possession or occupation of the area since time immemorial by such ICCs/IPs in the
concept of owners which shall be any one (1) of the following authentic documents:
1) Written accounts of the ICCs/IPs customs an traditions;
2) Written accounts of the ICCs/IPs political structure and institution;
3) Pictures showing long term occupation such as those of old improvements, burial
grounds, sacred places and old villages;
4) Historical accounts, including pacts and agreements concerning boundaries entered
into by the ICCs/IPs concerned with other ICCs/IPs;
5) Survey plans and sketch maps;
6) Anthropological data;
7) Genealogical surveys;
8) Pictures and descriptive histories of traditional communal forests and hunting
grounds;
9) Pictures and descriptive histories of traditional landmarks such as mountains, rivers,
creeks, ridges, hills, terraces and the like; and
10) Write-ups of names and places derived from the native dialect of the community.
e) Preparation of Maps. - On the basis of such investigation and the findings of fact
based thereon, the Ancestral Domains Office of the NCIP shall prepare a perimeter map,
complete with technical descriptions, and a description of the natural features and
landmarks embraced therein;
f) Report of Investigation and Other Documents. - A complete copy of the preliminary
census and a report of investigation, shall be prepared by the Ancestral Domains Office
of the NCIP;
g) Notice and Publication. - A copy of each document, including a translation in the
native language of the ICCs/IPs concerned shall be posted in a prominent place therein
for at least fifteen (15) days. A copy of the document shall also be posted at the local,
provincial and regional offices of the NCIP, and shall be published in a newspaper of
general circulation once a week for two (2) consecutive weeks to allow other claimants
to file opposition thereto within fifteen (15) days from date of such publication:
Provided, That in areas where no such newspaper exists, broadcasting in a radio station
will be a valid substitute: Provided, further, That mere posting shall be deemed sufficient
if both newspaper and radio station are not available;
h) Endorsement to NCIP. - Within fifteen (15) days from publication, and of the
inspection process, the Ancestral Domains Office shall prepare a report to the NCIP
endorsing a favorable action upon a claim that is deemed to have sufficient proof.
However, if the proof is deemed insufficient, the Ancestral Domains Office shall require
the submission of additional evidence: Provided, That the Ancestral Domains Office shall
reject any claim that is deemed patently false or fraudulent after inspection and
verification: Provided, further, That in case of rejection, the Ancestral Domains Office
shall give the applicant due notice, copy furnished all concerned, containing the grounds
for denial. The denial shall be appealable to the NCIP: Provided, furthermore, That in
cases where there are conflicting claims among ICCs/IPs on the boundaries of ancestral
domain claims, the Ancestral Domains Office shall cause the contending parties to meet
and assist them in coming up with a preliminary resolution of the conflict, without
prejudice to its full adjudication according to the section below.x x x x
To remove all doubts about the irreconcilability of the MOA-AD with the present legal
system, a discussion of not only the Constitution and domestic statutes, but also of
international law is in order, for
Article II, Section 2 of the Constitution states that the Philippines "adopts the generally
accepted principles of international law as part of the law of the land."
Applying this provision of the Constitution, the Court, in Mejoff v. Director of Prisons,158
held that the Universal Declaration of Human Rights is part of the law of the land on
account of which it ordered the release on bail of a detained alien of Russian descent
whose deportation order had not been executed even after two years. Similarly, the
Court in Agustin v. Edu159 applied the aforesaid constitutional provision to the 1968
Vienna Convention on Road Signs and Signals.
International law has long recognized the right to self-determination of "peoples,"
understood not merely as the entire population of a State but also a portion thereof. In
considering the question of whether the people of Quebec had a right to unilaterally
secede from Canada, the Canadian Supreme Court in REFERENCE RE SECESSION OF
QUEBEC160 had occasion to acknowledge that "the right of a people to self-
determination is now so widely recognized in international conventions that the principle
has acquired a status beyond ‘convention' and is considered a general principle of
international law."
Among the conventions referred to are the International Covenant on Civil and Political
Rights161 and the International Covenant on Economic, Social and Cultural Rights162
which state, in Article 1 of both covenants, that all peoples, by virtue of the right of self-
determination, "freely determine their political status and freely pursue their economic,
social, and cultural development."
The people's right to self-determination should not, however, be understood as
extending to a unilateral right of secession. A distinction should be made between the
right of internal and external self-determination. REFERENCE RE SECESSION OF QUEBEC
is again instructive:
"(ii) Scope of the Right to Self-determination
126. The recognized sources of international law establish that the right to self-
determination of a people is normally fulfilled through internal self-determination - a
people's pursuit of its political, economic, social and cultural development within the
framework of an existing state. A right to external self-determination (which in this case
potentially takes the form of the assertion of a right to unilateral secession) arises in
only the most extreme of cases and, even then, under carefully defined circumstances. x
xx
External self-determination can be defined as in the following statement from the
Declaration on Friendly Relations, supra, as
The establishment of a sovereign and independent State, the free association or
integration with an independent State or the emergence into any other political status
freely determined by a people constitute modes of implementing the right of self-
determination by that people. (Emphasis added)
127. The international law principle of self-determination has evolved within a
framework of respect for the territorial integrity of existing states. The various
international documents that support the existence of a people's right to self-
determination also contain parallel statements supportive of the conclusion that the
exercise of such a right must be sufficiently limited to prevent threats to an existing
state's territorial integrity or the stability of relations between sovereign states.
x x x x (Emphasis, italics and underscoring supplied)
The Canadian Court went on to discuss the exceptional cases in which the right to
external self-determination can arise, namely, where a people is under colonial rule, is
subject to foreign domination or exploitation outside a colonial context, and - less
definitely but asserted by a number of commentators - is blocked from the meaningful
exercise of its right to internal self-determination. The Court ultimately held that the
population of Quebec had no right to secession, as the same is not under colonial rule or
foreign domination, nor is it being deprived of the freedom to make political choices and
pursue economic, social and cultural development, citing that Quebec is equitably
represented in legislative, executive and judicial institutions within Canada, even
occupying prominent positions therein.
The exceptional nature of the right of secession is further exemplified in the REPORT OF
THE INTERNATIONAL COMMITTEE OF JURISTS ON THE LEGAL ASPECTS OF THE AALAND
ISLANDS QUESTION.163 There, Sweden presented to the Council of the League of
Nations the question of whether the inhabitants of the Aaland Islands should be
authorized to determine by plebiscite if the archipelago should remain under Finnish
sovereignty or be incorporated in the kingdom of Sweden. The Council, before resolving
the question, appointed an International Committee composed of three jurists to submit
an opinion on the preliminary issue of whether the dispute should, based on
international law, be entirely left to the domestic jurisdiction of Finland. The Committee
stated the rule as follows:
x x x [I]n the absence of express provisions in international treaties, the right of
disposing of national territory is essentially an attribute of the sovereignty of every
State. Positive International Law does not recognize the right of national groups, as
such, to separate themselves from the State of which they form part by the simple
expression of a wish, any more than it recognizes the right of other States to claim such
a separation. Generally speaking, the grant or refusal of the right to a portion of its
population of determining its own political fate by plebiscite or by some other method,
is, exclusively, an attribute of the sovereignty of every State which is definitively
constituted. A dispute between two States concerning such a question, under normal
conditions therefore, bears upon a question which International Law leaves entirely to
the domestic jurisdiction of one of the States concerned. Any other solution would
amount to an infringement of sovereign rights of a State and would involve the risk of
creating difficulties and a lack of stability which would not only be contrary to the very
idea embodied in term "State," but would also endanger the interests of the
international community. If this right is not possessed by a large or small section of a
nation, neither can it be held by the State to which the national group wishes to be
attached, nor by any other State. (Emphasis and underscoring supplied)
The Committee held that the dispute concerning the Aaland Islands did not refer to a
question which is left by international law to the domestic jurisdiction of Finland, thereby
applying the exception rather than the rule elucidated above. Its ground for departing
from the general rule, however, was a very narrow one, namely, the Aaland Islands
agitation originated at a time when Finland was undergoing drastic political
transformation. The internal situation of Finland was, according to the Committee, so
abnormal that, for a considerable time, the conditions required for the formation of a
sovereign State did not exist. In the midst of revolution, anarchy, and civil war, the
legitimacy of the Finnish national government was disputed by a large section of the
people, and it had, in fact, been chased from the capital and forcibly prevented from
carrying out its duties. The armed camps and the police were divided into two opposing
forces. In light of these circumstances, Finland was not, during the relevant time period,
a "definitively constituted" sovereign state. The Committee, therefore, found that
Finland did not possess the right to withhold from a portion of its population the option
to separate itself - a right which sovereign nations generally have with respect to their
own populations.
Turning now to the more specific category of indigenous peoples, this term has been
used, in scholarship as well as international, regional, and state practices, to refer to
groups with distinct cultures, histories, and connections to land (spiritual and otherwise)
that have been forcibly incorporated into a larger governing society. These groups are
regarded as "indigenous" since they are the living descendants of pre-invasion
inhabitants of lands now dominated by others. Otherwise stated, indigenous peoples,
nations, or communities are culturally distinctive groups that find themselves engulfed
by settler societies born of the forces of empire and conquest.164 Examples of groups
who have been regarded as indigenous peoples are the Maori of New Zealand and the
aboriginal peoples of Canada.
As with the broader category of "peoples," indigenous peoples situated within states do
not have a general right to independence or secession from those states under
international law,165 but they do have rights amounting to what was discussed above as
the right to internal self-determination.
In a historic development last September 13, 2007, the UN General Assembly adopted
the United Nations Declaration on the Rights of Indigenous Peoples (UN DRIP) through
General Assembly Resolution 61/295. The vote was 143 to 4, the Philippines being
included among those in favor, and the four voting against being Australia, Canada, New
Zealand, and the U.S. The Declaration clearly recognized the right of indigenous peoples
to self-determination, encompassing the right to autonomy or self-government, to wit:
Article 3
Indigenous peoples have the right to self-determination. By virtue of that right they
freely determine their political status and freely pursue their economic, social and
cultural development.
Article 4
Indigenous peoples, in exercising their right to self-determination, have the right to
autonomy or self-government in matters relating to their internal and local affairs, as
well as ways and means for financing their autonomous functions.
Article 5
Indigenous peoples have the right to maintain and strengthen their distinct political,
legal, economic, social and cultural institutions, while retaining their right to participate
fully, if they so choose, in the political, economic, social and cultural life of the State.
Self-government, as used in international legal discourse pertaining to indigenous
peoples, has been understood as equivalent to "internal self-determination." The extent
of self-determination provided for in the UN DRIP is more particularly defined in its
subsequent articles, some of which are quoted hereunder:
Article 8
1. Indigenous peoples and individuals have the right not to be subjected to forced
assimilation or destruction of their culture.
2. States shall provide effective mechanisms for prevention of, and redress for:
(a) Any action which has the aim or effect of depriving them of their integrity as distinct
peoples, or of their cultural values or ethnic identities;
(b) Any action which has the aim or effect of dispossessing them of their lands,
territories or resources;
(c) Any form of forced population transfer which has the aim or effect of violating or
undermining any of their rights;
(d) Any form of forced assimilation or integration;
(e) Any form of propaganda designed to promote or incite racial or ethnic discrimination
directed against them.
Article 21
1. Indigenous peoples have the right, without discrimination, to the improvement of
their economic and social conditions, including, inter alia, in the areas of education,
employment, vocational training and retraining, housing, sanitation, health and social
security.
2. States shall take effective measures and, where appropriate, special measures to
ensure continuing improvement of their economic and social conditions. Particular
attention shall be paid to the rights and special needs of indigenous elders, women,
youth, children and persons with disabilities.
Article 26
1. Indigenous peoples have the right to the lands, territories and resources which they
have traditionally owned, occupied or otherwise used or acquired.
2. Indigenous peoples have the right to own, use, develop and control the lands,
territories and resources that they possess by reason of traditional ownership or other
traditional occupation or use, as well as those which they have otherwise acquired.
3. States shall give legal recognition and protection to these lands, territories and
resources. Such recognition shall be conducted with due respect to the customs,
traditions and land tenure systems of the indigenous peoples concerned.
Article 30
1. Military activities shall not take place in the lands or territories of indigenous peoples,
unless justified by a relevant public interest or otherwise freely agreed with or requested
by the indigenous peoples concerned.
2. States shall undertake effective consultations with the indigenous peoples concerned,
through appropriate procedures and in particular through their representative
institutions, prior to using their lands or territories for military activities.
Article 32
1. Indigenous peoples have the right to determine and develop priorities and strategies
for the development or use of their lands or territories and other resources.
2. States shall consult and cooperate in good faith with the indigenous peoples
concerned through their own representative institutions in order to obtain their free and
informed consent prior to the approval of any project affecting their lands or territories
and other resources, particularly in connection with the development, utilization or
exploitation of mineral, water or other resources.
3. States shall provide effective mechanisms for just and fair redress for any such
activities, and appropriate measures shall be taken to mitigate adverse environmental,
economic, social, cultural or spiritual impact.
Article 3
1. Indigenous peoples have the right to the recognition, observance and enforcement of
treaties, agreements and other constructive arrangements concluded with States or their
successors and to have States honour and respect such treaties, agreements and other
constructive arrangements.
2. Nothing in this Declaration may be interpreted as diminishing or eliminating the rights
of indigenous peoples contained in treaties, agreements and other constructive
arrangements.
Article 38
States in consultation and cooperation with indigenous peoples, shall take the
appropriate measures, including legislative measures, to achieve the ends of this
Declaration.
Assuming that the UN DRIP, like the Universal Declaration on Human Rights, must now
be regarded as embodying customary international law - a question which the Court
need not definitively resolve here - the obligations enumerated therein do not strictly
require the Republic to grant the Bangsamoro people, through the instrumentality of the
BJE, the particular rights and powers provided for in the MOA-AD. Even the more specific
provisions of the UN DRIP are general in scope, allowing for flexibility in its application
by the different States.
There is, for instance, no requirement in the UN DRIP that States now guarantee
indigenous peoples their own police and internal security force. Indeed, Article 8
presupposes that it is the State which will provide protection for indigenous peoples
against acts like the forced dispossession of their lands - a function that is normally
performed by police officers. If the protection of a right so essential to indigenous
people's identity is acknowledged to be the responsibility of the State, then surely the
protection of rights less significant to them as such peoples would also be the duty of
States. Nor is there in the UN DRIP an acknowledgement of the right of indigenous
peoples to the aerial domain and atmospheric space. What it upholds, in Article 26
thereof, is the right of indigenous peoples to the lands, territories and resources which
they have traditionally owned, occupied or otherwise used or acquired.

Moreover, the UN DRIP, while upholding the right of indigenous peoples to autonomy,
does not obligate States to grant indigenous peoples the near-independent status of an
associated state. All the rights recognized in that document are qualified in Article 46 as
follows:
1. Nothing in this Declaration may be interpreted as implying for any State, people,
group or person any right to engage in any activity or to perform any act contrary to the
Charter of the United Nations or construed as authorizing or encouraging any action
which would dismember or impair, totally or in part, the territorial integrity or political
unity of sovereign and independent States.
Even if the UN DRIP were considered as part of the law of the land pursuant to Article II,
Section 2 of the Constitution, it would not suffice to uphold the validity of the MOA-AD
so as to render its compliance with other laws unnecessary.
It is, therefore, clear that the MOA-AD contains numerous provisions that cannot be
reconciled with the Constitution and the laws as presently worded. Respondents proffer,
however, that the signing of the MOA-AD alone would not have entailed any violation of
law or grave abuse of discretion on their part, precisely because it stipulates that the
provisions thereof inconsistent with the laws shall not take effect until these laws are
amended. They cite paragraph 7 of the MOA-AD strand on GOVERNANCE quoted earlier,
but which is reproduced below for convenience:
7. The Parties agree that the mechanisms and modalities for the actual implementation
of this MOA-AD shall be spelt out in the Comprehensive Compact to mutually take such
steps to enable it to occur effectively.
Any provisions of the MOA-AD requiring amendments to the existing legal framework
shall come into force upon signing of a Comprehensive Compact and upon effecting the
necessary changes to the legal framework with due regard to non derogation of prior
agreements and within the stipulated timeframe to be contained in the Comprehensive
Compact.
Indeed, the foregoing stipulation keeps many controversial provisions of the MOA-AD
from coming into force until the necessary changes to the legal framework are effected.
While the word "Constitution" is not mentioned in the provision now under consideration
or anywhere else in the MOA-AD, the term "legal framework" is certainly broad enough
to include the Constitution.
Notwithstanding the suspensive clause, however, respondents, by their mere act of
incorporating in the MOA-AD the provisions thereof regarding the associative
relationship between the BJE and the Central Government, have already violated the
Memorandum of Instructions From The President dated March 1, 2001, which states that
the "negotiations shall be conducted in accordance with x x x the principles of the
sovereignty and territorial integrity of the Republic of the Philippines." (Emphasis
supplied) Establishing an associative relationship between the BJE and the Central
Government is, for the reasons already discussed, a preparation for independence, or
worse, an implicit acknowledgment of an independent status already prevailing.
Even apart from the above-mentioned Memorandum, however, the MOA-AD is defective
because the suspensive clause is invalid, as discussed below.
The authority of the GRP Peace Negotiating Panel to negotiate with the MILF is founded
on E.O. No. 3, Section 5(c), which states that there shall be established Government
Peace Negotiating Panels for negotiations with different rebel groups to be "appointed by
the President as her official emissaries to conduct negotiations, dialogues, and face-to-
face discussions with rebel groups." These negotiating panels are to report to the
President, through the PAPP on the conduct and progress of the negotiations.
It bears noting that the GRP Peace Panel, in exploring lasting solutions to the Moro
Problem through its negotiations with the MILF, was not restricted by E.O. No. 3 only to
those options available under the laws as they presently stand. One of the components
of a comprehensive peace process, which E.O. No. 3 collectively refers to as the "Paths
to Peace," is the pursuit of social, economic, and political reforms which may require
new legislation or even constitutional amendments. Sec. 4(a) of E.O. No. 3, which
reiterates Section 3(a), of E.O. No. 125,167 states:
SECTION 4. The Six Paths to Peace. - The components of the comprehensive peace
process comprise the processes known as the "Paths to Peace". These component
processes are interrelated and not mutually exclusive, and must therefore be pursued
simultaneously in a coordinated and integrated fashion. They shall include, but may not
be limited to, the following:
a. PURSUIT OF SOCIAL, ECONOMIC AND POLITICAL REFORMS. This component involves
the vigorous implementation of various policies, reforms, programs and projects aimed
at addressing the root causes of internal armed conflicts and social unrest. This may
require administrative action, new legislation or even constitutional amendments.x x x x
(Emphasis supplied)
The MOA-AD, therefore, may reasonably be perceived as an attempt of respondents to
address, pursuant to this provision of E.O. No. 3, the root causes of the armed conflict in
Mindanao. The E.O. authorized them to "think outside the box," so to speak. Hence, they
negotiated and were set on signing the MOA-AD that included various social, economic,
and political reforms which cannot, however, all be accommodated within the present
legal framework, and which thus would require new legislation and constitutional
amendments.
The inquiry on the legality of the "suspensive clause," however, cannot stop here,
because it must be asked whether the President herself may exercise the power
delegated to the GRP Peace Panel under E.O. No. 3, Sec. 4(a).
The President cannot delegate a power that she herself does not possess. May the
President, in the course of peace negotiations, agree to pursue reforms that would
require new legislation and constitutional amendments, or should the reforms be
restricted only to those solutions which the present laws allow? The answer to this
question requires a discussion of the extent of the President's power to conduct peace
negotiations.
That the authority of the President to conduct peace negotiations with rebel groups is
not explicitly mentioned in the Constitution does not mean that she has no such
authority. In Sanlakas v. Executive Secretary, in issue was the authority of the President
to declare a state of rebellion - an authority which is not expressly provided for in the
Constitution. The Court held thus:
"In her ponencia in Marcos v. Manglapus, Justice Cortes put her thesis into
jurisprudence. There, the Court, by a slim 8-7 margin, upheld the President's power to
forbid the return of her exiled predecessor. The rationale for the majority's ruling rested
on the President's
. . . unstated residual powers which are implied from the grant of executive power and
which are necessary for her to comply with her duties under the Constitution. The
powers of the President are not limited to what are expressly enumerated in the article
on the Executive Department and in scattered provisions of the Constitution. This is so,
notwithstanding the avowed intent of the members of the Constitutional Commission of
1986 to limit the powers of the President as a reaction to the abuses under the regime
of Mr. Marcos, for the result was a limitation of specific powers of the President,
particularly those relating to the commander-in-chief clause, but not a diminution of the
general grant of executive power.
Thus, the President's authority to declare a state of rebellion springs in the main from
her powers as chief executive and, at the same time, draws strength from her
Commander-in-Chief powers. x x x (Emphasis and underscoring supplied)
Similarly, the President's power to conduct peace negotiations is implicitly included in
her powers as Chief Executive and Commander-in-Chief. As Chief Executive, the
President has the general responsibility to promote public peace, and as Commander-in-
Chief, she has the more specific duty to prevent and suppress rebellion and lawless
violence.
As the experience of nations which have similarly gone through internal armed conflict
will show, however, peace is rarely attained by simply pursuing a military solution.
Oftentimes, changes as far-reaching as a fundamental reconfiguration of the nation's
constitutional structure is required. The observations of Dr. Kirsti Samuels are
enlightening, to wit:
x x x [T]he fact remains that a successful political and governance transition must form
the core of any post-conflict peace-building mission. As we have observed in Liberia and
Haiti over the last ten years, conflict cessation without modification of the political
environment, even where state-building is undertaken through technical electoral
assistance and institution- or capacity-building, is unlikely to succeed. On average, more
than 50 percent of states emerging from conflict return to conflict. Moreover, a
substantial proportion of transitions have resulted in weak or limited democracies.
The design of a constitution and its constitution-making process can play an important
role in the political and governance transition. Constitution-making after conflict is an
opportunity to create a common vision of the future of a state and a road map on how to
get there. The constitution can be partly a peace agreement and partly a framework
setting up the rules by which the new democracy will operate.
In the same vein, Professor Christine Bell, in her article on the nature and legal status of
peace agreements, observed that the typical way that peace agreements establish or
confirm mechanisms for demilitarization and demobilization is by linking them to new
constitutional structures addressing governance, elections, and legal and human rights
institutions.
In the Philippine experience, the link between peace agreements and constitution-
making has been recognized by no less than the framers of the Constitution. Behind the
provisions of the Constitution on autonomous regions172 is the framers' intention to
implement a particular peace agreement, namely, the Tripoli Agreement of 1976
between the GRP and the MNLF, signed by then Undersecretary of National Defense
Carmelo Z. Barbero and then MNLF Chairman Nur Misuari.
MR. ROMULO. There are other speakers; so, although I have some more questions, I will
reserve my right to ask them if they are not covered by the other speakers. I have only
two questions.
I heard one of the Commissioners say that local autonomy already exists in the Muslim
region; it is working very well; it has, in fact, diminished a great deal of the problems.
So, my question is: since that already exists, why do we have to go into something
new?
MR. OPLE. May I answer that on behalf of Chairman Nolledo. Commissioner Yusup
Abubakar is right that certain definite steps have been taken to implement the
provisions of the Tripoli Agreement with respect to an autonomous region in Mindanao.
This is a good first step, but there is no question that this is merely a partial response to
the Tripoli Agreement itself and to the fuller standard of regional autonomy
contemplated in that agreement, and now by state policy.(Emphasis supplied)
The constitutional provisions on autonomy and the statutes enacted pursuant to them
have, to the credit of their drafters, been partly successful. Nonetheless, the Filipino
people are still faced with the reality of an on-going conflict between the Government
and the MILF. If the President is to be expected to find means for bringing this conflict to
an end and to achieve lasting peace in Mindanao, then she must be given the leeway to
explore, in the course of peace negotiations, solutions that may require changes to the
Constitution for their implementation. Being uniquely vested with the power to conduct
peace negotiations with rebel groups, the President is in a singular position to know the
precise nature of their grievances which, if resolved, may bring an end to hostilities.
The President may not, of course, unilaterally implement the solutions that she
considers viable, but she may not be prevented from submitting them as
recommendations to Congress, which could then, if it is minded, act upon them pursuant
to the legal procedures for constitutional amendment and revision. In particular,
Congress would have the option, pursuant to Article XVII, Sections 1 and 3 of the
Constitution, to propose the recommended amendments or revision to the people, call a
constitutional convention, or submit to the electorate the question of calling such a
convention.
While the President does not possess constituent powers - as those powers may be
exercised only by Congress, a Constitutional Convention, or the people through initiative
and referendum - she may submit proposals for constitutional change to Congress in a
manner that does not involve the arrogation of constituent powers.
In Sanidad v. COMELEC, in issue was the legality of then President Marcos' act of
directly submitting proposals for constitutional amendments to a referendum, bypassing
the interim National Assembly which was the body vested by the 1973 Constitution with
the power to propose such amendments. President Marcos, it will be recalled, never
convened the interim National Assembly. The majority upheld the President's act,
holding that "the urges of absolute necessity" compelled the President as the agent of
the people to act as he did, there being no interim National Assembly to propose
constitutional amendments. Against this ruling, Justices Teehankee and Muñoz Palma
vigorously dissented. The Court's concern at present, however, is not with regard to the
point on which it was then divided in that controversial case, but on that which was not
disputed by either side.
Justice Teehankee's dissent, in particular, bears noting. While he disagreed that the
President may directly submit proposed constitutional amendments to a referendum,
implicit in his opinion is a recognition that he would have upheld the President's action
along with the majority had the President convened the interim National Assembly and
coursed his proposals through it. Thus Justice Teehankee opined:
"Since the Constitution provides for the organization of the essential departments of
government, defines and delimits the powers of each and prescribes the manner of the
exercise of such powers, and the constituent power has not been granted to but has
been withheld from the President or Prime Minister, it follows that the President's
questioned decrees proposing and submitting constitutional amendments directly to the
people (without the intervention of the interim National Assembly in whom the power is
expressly vested) are devoid of constitutional and legal basis." (Emphasis supplied)

From the foregoing discussion, the principle may be inferred that the President - in the
course of conducting peace negotiations - may validly consider implementing even those
policies that require changes to the Constitution, but she may not unilaterally implement
them without the intervention of Congress, or act in any way as if the assent of that
body were assumed as a certainty.
Since, under the present Constitution, the people also have the power to directly
propose amendments through initiative and referendum, the President may also submit
her recommendations to the people, not as a formal proposal to be voted on in a
plebiscite similar to what President Marcos did in Sanidad, but for their independent
consideration of whether these recommendations merit being formally proposed through
initiative.
These recommendations, however, may amount to nothing more than the President's
suggestions to the people, for any further involvement in the process of initiative by the
Chief Executive may vitiate its character as a genuine "people's initiative." The only
initiative recognized by the Constitution is that which truly proceeds from the people. As
the Court stated in Lambino v. COMELEC:
"The Lambino Group claims that their initiative is the ‘people's voice.' However, the
Lambino Group unabashedly states in ULAP Resolution No. 2006-02, in the verification
of their petition with the COMELEC, that ‘ULAP maintains its unqualified support to the
agenda of Her Excellency President Gloria Macapagal-Arroyo for constitutional reforms.'
The Lambino Group thus admits that their ‘people's' initiative is an ‘unqualified support
to the agenda' of the incumbent President to change the Constitution. This forewarns the
Court to be wary of incantations of ‘people's voice' or ‘sovereign will' in the present
initiative."
It will be observed that the President has authority, as stated in her oath of office, only
to preserve and defend the Constitution. Such presidential power does not, however,
extend to allowing her to change the Constitution, but simply to recommend proposed
amendments or revision. As long as she limits herself to recommending these changes
and submits to the proper procedure for constitutional amendments and revision, her
mere recommendation need not be construed as an unconstitutional act.
The foregoing discussion focused on the President's authority to propose constitutional
amendments, since her authority to propose new legislation is not in controversy. It has
been an accepted practice for Presidents in this jurisdiction to propose new legislation.
One of the more prominent instances the practice is usually done is in the yearly State
of the Nation Address of the President to Congress. Moreover, the annual general
appropriations bill has always been based on the budget prepared by the President,
which - for all intents and purposes - is a proposal for new legislation coming from the
President.
The "suspensive clause" in the MOA-AD viewed in light of the above-discussed standards
Given the limited nature of the President's authority to propose constitutional
amendments, she cannot guarantee to any third party that the required amendments
will eventually be put in place, nor even be submitted to a plebiscite. The most she could
do is submit these proposals as recommendations either to Congress or the people, in
whom constituent powers are vested.
Paragraph 7 on Governance of the MOA-AD states, however, that all provisions thereof
which cannot be reconciled with the present Constitution and laws "shall come into force
upon signing of a Comprehensive Compact and upon effecting the necessary changes to
the legal framework." This stipulation does not bear the marks of a suspensive condition
- defined in civil law as a future and uncertain event - but of a term. It is not a question
of whether the necessary changes to the legal framework will be effected, but when.
That there is no uncertainty being contemplated is plain from what follows, for the
paragraph goes on to state that the contemplated changes shall be "with due regard to
non derogation of prior agreements and within the stipulated timeframe to be contained
in the Comprehensive Compact."
Pursuant to this stipulation, therefore, it is mandatory for the GRP to effect the changes
to the legal framework contemplated in the MOA-AD - which changes would include
constitutional amendments, as discussed earlier. It bears noting that,
By the time these changes are put in place, the MOA-AD itself would be counted among
the "prior agreements" from which there could be no derogation.
What remains for discussion in the Comprehensive Compact would merely be the
implementing details for these "consensus points" and, notably, the deadline for
effecting the contemplated changes to the legal framework.
Plainly, stipulation-paragraph 7 on GOVERNANCE is inconsistent with the limits of the
President's authority to propose constitutional amendments, it being a virtual guarantee
that the Constitution and the laws of the Republic of the Philippines will certainly be
adjusted to conform to all the "consensus points" found in the MOA-AD. Hence, it must
be struck down as unconstitutional.
A comparison between the "suspensive clause" of the MOA-AD with a similar provision
appearing in the 1996 final peace agreement between the MNLF and the GRP is most
instructive.
As a backdrop, the parties to the 1996 Agreement stipulated that it would be
implemented in two phases. Phase I covered a three-year transitional period involving
the putting up of new administrative structures through Executive Order, such as the
Special Zone of Peace and Development (SZOPAD) and the Southern Philippines Council
for Peace and Development (SPCPD), while Phase II covered the establishment of the
new regional autonomous government through amendment or repeal of R.A. No. 6734,
which was then the Organic Act of the ARMM.
The stipulations on Phase II consisted of specific agreements on the structure of the
expanded autonomous region envisioned by the parties. To that extent, they are similar
to the provisions of the MOA-AD. There is, however, a crucial difference between the two
agreements. While the MOA-AD virtually guarantees that the "necessary changes to the
legal framework" will be put in place, the GRP-MNLF final peace agreement states thus:
"Accordingly, these provisions [on Phase II] shall be recommended by the GRP to
Congress for incorporation in the amendatory or repealing law."
Concerns have been raised that the MOA-AD would have given rise to a binding
international law obligation on the part of the Philippines to change its Constitution in
conformity thereto, on the ground that it may be considered either as a binding
agreement under international law, or a unilateral declaration of the Philippine
government to the international community that it would grant to the Bangsamoro
people all the concessions therein stated. Neither ground finds sufficient support in
international law, however.
The MOA-AD, as earlier mentioned in the overview thereof, would have included foreign
dignitaries as signatories. In addition, representatives of other nations were invited to
witness its signing in Kuala Lumpur. These circumstances readily lead one to surmise
that the MOA-AD would have had the status of a binding international agreement had it
been signed. An examination of the prevailing principles in international law, however,
leads to the contrary conclusion.

The Decision on Challenge to Jurisdiction: Lomé Accord Amnesty180 (the Lomé Accord
case) of the Special Court of Sierra Leone is enlightening. The Lomé Accord was a peace
agreement signed on July 7, 1999 between the Government of Sierra Leone and the
Revolutionary United Front (RUF), a rebel group with which the Sierra Leone
Government had been in armed conflict for around eight years at the time of signing.
There were non-contracting signatories to the agreement, among which were the
Government of the Togolese Republic, the Economic Community of West African States,
and the UN.
On January 16, 2002, after a successful negotiation between the UN Secretary-General
and the Sierra Leone Government, another agreement was entered into by the UN and
that Government whereby the Special Court of Sierra Leone was established. The sole
purpose of the Special Court, an international court, was to try persons who bore the
greatest responsibility for serious violations of international humanitarian law and Sierra
Leonean law committed in the territory of Sierra Leone since November 30, 1996.
Among the stipulations of the Lomé Accord was a provision for the full pardon of the
members of the RUF with respect to anything done by them in pursuit of their objectives
as members of that organization since the conflict began.
In the Lomé Accord case, the Defence argued that the Accord created an internationally
binding obligation not to prosecute the beneficiaries of the amnesty provided therein,
citing, among other things, the participation of foreign dignitaries and international
organizations in the finalization of that agreement. The Special Court, however, rejected
this argument, ruling that the Lome Accord is not a treaty and that it can only create
binding obligations and rights between the parties in municipal law, not in international
law. Hence, the Special Court held, it is ineffective in depriving an international court like
it of jurisdiction.
"37. In regard to the nature of a negotiated settlement of an internal armed conflict it is
easy to assume and to argue with some degree of plausibility, as Defence counsel for
the defendants seem to have done, that the mere fact that in addition to the parties to
the conflict, the document formalizing the settlement is signed by foreign heads of state
or their representatives and representatives of international organizations, means the
agreement of the parties is internationalized so as to create obligations in international
law. x x x x
40. Almost every conflict resolution will involve the parties to the conflict and the
mediator or facilitator of the settlement, or persons or bodies under whose auspices the
settlement took place but who are not at all parties to the conflict, are not contracting
parties and who do not claim any obligation from the contracting parties or incur any
obligation from the settlement.
41. In this case, the parties to the conflict are the lawful authority of the State and the
RUF which has no status of statehood and is to all intents and purposes a faction within
the state. The non-contracting signatories of the Lomé Agreement were moral
guarantors of the principle that, in the terms of Article XXXIV of the Agreement, "this
peace agreement is implemented with integrity and in good faith by both parties". The
moral guarantors assumed no legal obligation. It is recalled that the UN by its
representative appended, presumably for avoidance of doubt, an understanding of the
extent of the agreement to be implemented as not including certain international crimes.
42. An international agreement in the nature of a treaty must create rights and
obligations regulated by international law so that a breach of its terms will be a breach
determined under international law which will also provide principle means of
enforcement. The Lomé Agreement created neither rights nor obligations capable of
being regulated by international law. An agreement such as the Lomé Agreement which
brings to an end an internal armed conflict no doubt creates a factual situation of
restoration of peace that the international community acting through the Security
Council may take note of. That, however, will not convert it to an international
agreement which creates an obligation enforceable in international, as distinguished
from municipal, law. A breach of the terms of such a peace agreement resulting in
resumption of internal armed conflict or creating a threat to peace in the determination
of the Security Council may indicate a reversal of the factual situation of peace to be
visited with possible legal consequences arising from the new situation of conflict
created. Such consequences such as action by the Security Council pursuant to Chapter
VII arise from the situation and not from the agreement, nor from the obligation
imposed by it. Such action cannot be regarded as a remedy for the breach. A peace
agreement which settles an internal armed conflict cannot be ascribed the same status
as one which settles an international armed conflict which, essentially, must be between
two or more warring States. The Lomé Agreement cannot be characterised as an
international instrument. x x x" (Emphasis, italics and underscoring supplied)
Similarly, that the MOA-AD would have been signed by representatives of States and
international organizations not parties to the Agreement would not have sufficed to vest
in it a binding character under international law.
In another vein, concern has been raised that the MOA-AD would amount to a unilateral
declaration of the Philippine State, binding under international law, that it would comply
with all the stipulations stated therein, with the result that it would have to amend its
Constitution accordingly regardless of the true will of the people. Cited as authority for
this view is Australia v. France,181 also known as the Nuclear Tests Case, decided by
the International Court of Justice (ICJ).
In the Nuclear Tests Case, Australia challenged before the ICJ the legality of France's
nuclear tests in the South Pacific. France refused to appear in the case, but public
statements from its President, and similar statements from other French officials
including its Minister of Defence, that its 1974 series of atmospheric tests would be its
last, persuaded the ICJ to dismiss the case.182 Those statements, the ICJ held,
amounted to a legal undertaking addressed to the international community, which
required no acceptance from other States for it to become effective.
Essential to the ICJ ruling is its finding that the French government intended to be bound
to the international community in issuing its public statements, viz:
43. It is well recognized that declarations made by way of unilateral acts, concerning
legal or factual situations, may have the effect of creating legal obligations. Declarations
of this kind may be, and often are, very specific. When it is the intention of the State
making the declaration that it should become bound according to its terms, that
intention confers on the declaration the character of a legal undertaking, the State being
thenceforth legally required to follow a course of conduct consistent with the declaration.
An undertaking of this kind, if given publicly, and with an intent to be bound, even
though not made within the context of international negotiations, is binding. In these
circumstances, nothing in the nature of a quid pro quo nor any subsequent acceptance
of the declaration, nor even any reply or reaction from other States, is required for the
declaration to take effect, since such a requirement would be inconsistent with the
strictly unilateral nature of the juridical act by which the pronouncement by the State
was made.

44. Of course, not all unilateral acts imply obligation; but a State may choose to take up
a certain position in relation to a particular matter with the intention of being bound-the
intention is to be ascertained by interpretation of the act. When States make statements
by which their freedom of action is to be limited, a restrictive interpretation is called for.
xxxx
51. In announcing that the 1974 series of atmospheric tests would be the last, the
French Government conveyed to the world at large, including the Applicant, its intention
effectively to terminate these tests. It was bound to assume that other States might
take note of these statements and rely on their being effective. The validity of these
statements and their legal consequences must be considered within the general
framework of the security of international intercourse, and the confidence and trust
which are so essential in the relations among States. It is from the actual substance of
these statements, and from the circumstances attending their making, that the legal
implications of the unilateral act must be deduced. The objects of these statements are
clear and they were addressed to the international community as a whole, and the Court
holds that they constitute an undertaking possessing legal effect. The Court considers
*270 that the President of the Republic, in deciding upon the effective cessation of
atmospheric tests, gave an undertaking to the international community to which his
words were addressed. x x x (Emphasis and underscoring supplied)
As gathered from the above-quoted ruling of the ICJ, public statements of a state
representative may be construed as a unilateral declaration only when the following
conditions are present: the statements were clearly addressed to the international
community, the state intended to be bound to that community by its statements, and
that not to give legal effect to those statements would be detrimental to the security of
international intercourse. Plainly, unilateral declarations arise only in peculiar
circumstances.
The limited applicability of the Nuclear Tests Case ruling was recognized in a later case
decided by the ICJ entitled Burkina Faso v. Mali, also known as the Case Concerning the
Frontier Dispute. The public declaration subject of that case was a statement made by
the President of Mali, in an interview by a foreign press agency, that Mali would abide by
the decision to be issued by a commission of the Organization of African Unity on a
frontier dispute then pending between Mali and Burkina Faso.
Unlike in the Nuclear Tests Case, the ICJ held that the statement of Mali's President was
not a unilateral act with legal implications. It clarified that its ruling in the Nuclear Tests
case rested on the peculiar circumstances surrounding the French declaration subject
thereof, to wit:
40. In order to assess the intentions of the author of a unilateral act, account must be
taken of all the factual circumstances in which the act occurred. For example, in the
Nuclear Tests cases, the Court took the view that since the applicant States were not the
only ones concerned at the possible continuance of atmospheric testing by the French
Government, that Government's unilateral declarations had ‘conveyed to the world at
large, including the Applicant, its intention effectively to terminate these tests‘ (I.C.J.
Reports 1974, p. 269, para. 51; p. 474, para. 53). In the particular circumstances of
those cases, the French Government could not express an intention to be bound
otherwise than by unilateral declarations. It is difficult to see how it could have accepted
the terms of a negotiated solution with each of the applicants without thereby
jeopardizing its contention that its conduct was lawful. The circumstances of the present
case are radically different. Here, there was nothing to hinder the Parties from
manifesting an intention to accept the binding character of the conclusions of the
Organization of African Unity Mediation Commission by the normal method: a formal
agreement on the basis of reciprocity. Since no agreement of this kind was concluded
between the Parties, the Chamber finds that there are no grounds to interpret the
declaration made by Mali's head of State on 11 April 1975 as a unilateral act with legal
implications in regard to the present case. (Emphasis and underscoring supplied)
Assessing the MOA-AD in light of the above criteria, it would not have amounted to a
unilateral declaration on the part of the Philippine State to the international community.
The Philippine panel did not draft the same with the clear intention of being bound
thereby to the international community as a whole or to any State, but only to the MILF.
While there were States and international organizations involved, one way or another, in
the negotiation and projected signing of the MOA-AD, they participated merely as
witnesses or, in the case of Malaysia, as facilitator. As held in the Lomé Accord case, the
mere fact that in addition to the parties to the conflict, the peace settlement is signed by
representatives of states and international organizations does not mean that the
agreement is internationalized so as to create obligations in international law.
Since the commitments in the MOA-AD were not addressed to States, not to give legal
effect to such commitments would not be detrimental to the security of international
intercourse - to the trust and confidence essential in the relations among States.
In one important respect, the circumstances surrounding the MOA-AD are closer to that
of Burkina Faso wherein, as already discussed, the Mali President's statement was not
held to be a binding unilateral declaration by the ICJ. As in that case, there was also
nothing to hinder the Philippine panel, had it really been its intention to be bound to
other States, to manifest that intention by formal agreement. Here, that formal
agreement would have come about by the inclusion in the MOA-AD of a clear
commitment to be legally bound to the international community, not just the MILF, and
by an equally clear indication that the signatures of the participating states-
representatives would constitute an acceptance of that commitment. Entering into such
a formal agreement would not have resulted in a loss of face for the Philippine
government before the international community, which was one of the difficulties that
prevented the French Government from entering into a formal agreement with other
countries. That the Philippine panel did not enter into such a formal agreement suggests
that it had no intention to be bound to the international community. On that ground, the
MOA-AD may not be considered a unilateral declaration under international law.
The MOA-AD not being a document that can bind the Philippines under international law
notwithstanding, respondents' almost consummated act of guaranteeing amendments to
the legal framework is, by itself, sufficient to constitute grave abuse of discretion. The
grave abuse lies not in the fact that they considered, as a solution to the Moro Problem,
the creation of a state within a state, but in their brazen willingness to guarantee that
Congress and the sovereign Filipino people would give their imprimatur to their solution.
Upholding such an act would amount to authorizing a usurpation of the constituent
powers vested only in Congress, a Constitutional Convention, or the people themselves
through the process of initiative, for the only way that the Executive can ensure the
outcome of the amendment process is through an undue influence or interference with
that process.
The sovereign people may, if it so desired, go to the extent of giving up a portion of its
own territory to the Moros for the sake of peace, for it can change the Constitution in
any it wants, so long as the change is not inconsistent with what, in international law, is
known as Jus Cogens.184 Respondents, however, may not preempt it in that decision.
SUMMARY
The petitions are ripe for adjudication. The failure of respondents to consult the local
government units or communities affected constitutes a departure by respondents from
their mandate under E.O. No. 3. Moreover, respondents exceeded their authority by the
mere act of guaranteeing amendments to the Constitution. Any alleged violation of the
Constitution by any branch of government is a proper matter for judicial review.
As the petitions involve constitutional issues which are of paramount public interest or of
transcendental importance, the Court grants the petitioners, petitioners-in-intervention
and intervening respondents the requisite locus standi in keeping with the liberal stance
adopted in David v. Macapagal-Arroyo.
Contrary to the assertion of respondents that the non-signing of the MOA-AD and the
eventual dissolution of the GRP Peace Panel mooted the present petitions, the Court
finds that the present petitions provide an exception to the "moot and academic"
principle in view of (a) the grave violation of the Constitution involved; (b) the
exceptional character of the situation and paramount public interest; (c) the need to
formulate controlling principles to guide the bench, the bar, and the public; and (d) the
fact that the case is capable of repetition yet evading review.
The MOA-AD is a significant part of a series of agreements necessary to carry out the
GRP-MILF Tripoli Agreement on Peace signed by the government and the MILF back in
June 2001. Hence, the present MOA-AD can be renegotiated or another one drawn up
that could contain similar or significantly dissimilar provisions compared to the original.
The Court, however, finds that the prayers for mandamus have been rendered moot in
view of the respondents' action in providing the Court and the petitioners with the
official copy of the final draft of the MOA-AD and its annexes.
The people's right to information on matters of public concern under Sec. 7, Article III of
the Constitution is in splendid symmetry with the state policy of full public disclosure of
all its transactions involving public interest under Sec. 28, Article II of the Constitution.
The right to information guarantees the right of the people to demand information, while
Section 28 recognizes the duty of officialdom to give information even if nobody
demands. The complete and effective exercise of the right to information necessitates
that its complementary provision on public disclosure derive the same self-executory
nature, subject only to reasonable safeguards or limitations as may be provided by law.
The contents of the MOA-AD is a matter of paramount public concern involving public
interest in the highest order. In declaring that the right to information contemplates
steps and negotiations leading to the consummation of the contract, jurisprudence finds
no distinction as to the executory nature or commercial character of the agreement.
An essential element of these twin freedoms is to keep a continuing dialogue or process
of communication between the government and the people. Corollary to these twin
rights is the design for feedback mechanisms. The right to public consultation was
envisioned to be a species of these public rights.
At least three pertinent laws animate these constitutional imperatives and justify the
exercise of the people's right to be consulted on relevant matters relating to the peace
agenda.
One, E.O. No. 3 itself is replete with mechanics for continuing consultations on both
national and local levels and for a principal forum for consensus-building. In fact, it is
the duty of the Presidential Adviser on the Peace Process to conduct regular dialogues to
seek relevant information, comments, advice, and recommendations from peace
partners and concerned sectors of society.
Two, Republic Act No. 7160 or the Local Government Code of 1991 requires all national
offices to conduct consultations before any project or program critical to the
environment and human ecology including those that may call for the eviction of a
particular group of people residing in such locality, is implemented therein. The MOA-AD
is one peculiar program that unequivocally and unilaterally vests ownership of a vast
territory to the Bangsamoro people, which could pervasively and drastically result to the
diaspora or displacement of a great number of inhabitants from their total environment.
Three, Republic Act No. 8371 or the Indigenous Peoples Rights Act of 1997 provides for
clear-cut procedure for the recognition and delineation of ancestral domain, which
entails, among other things, the observance of the free and prior informed consent of
the Indigenous Cultural Communities/Indigenous Peoples. Notably, the statute does not
grant the Executive Department or any government agency the power to delineate and
recognize an ancestral domain claim by mere agreement or compromise.
The invocation of the doctrine of executive privilege as a defense to the general right to
information or the specific right to consultation is untenable. The various explicit legal
provisions fly in the face of executive secrecy. In any event, respondents effectively
waived such defense after it unconditionally disclosed the official copies of the final draft
of the MOA-AD, for judicial compliance and public scrutiny.
In sum, the Presidential Adviser on the Peace Process committed grave abuse of
discretion when he failed to carry out the pertinent consultation process, as mandated
by E.O. No. 3, Republic Act No. 7160, and Republic Act No. 8371. The furtive process by
which the MOA-AD was designed and crafted runs contrary to and in excess of the legal
authority, and amounts to a whimsical, capricious, oppressive, arbitrary and despotic
exercise thereof. It illustrates a gross evasion of positive duty and a virtual refusal to
perform the duty enjoined.
The MOA-AD cannot be reconciled with the present Constitution and laws. Not only its
specific provisions but the very concept underlying them, namely, the associative
relationship envisioned between the GRP and the BJE, are unconstitutional, for the
concept presupposes that the associated entity is a state and implies that the same is on
its way to independence.
While there is a clause in the MOA-AD stating that the provisions thereof inconsistent
with the present legal framework will not be effective until that framework is amended,
the same does not cure its defect. The inclusion of provisions in the MOA-AD establishing
an associative relationship between the BJE and the Central Government is, itself, a
violation of the Memorandum of Instructions From The President dated March 1, 2001,
addressed to the government peace panel. Moreover, as the clause is worded, it virtually
guarantees that the necessary amendments to the Constitution and the laws will
eventually be put in place. Neither the GRP Peace Panel nor the President herself is
authorized to make such a guarantee. Upholding such an act would amount to
authorizing a usurpation of the constituent powers vested only in Congress, a
Constitutional Convention, or the people themselves through the process of initiative, for
the only way that the Executive can ensure the outcome of the amendment process is
through an undue influence or interference with that process.

While the MOA-AD would not amount to an international agreement or unilateral

declaration binding on the Philippines under international law, respondents' act of
guaranteeing amendments is, by itself, already a constitutional violation that renders the
MOA-AD fatally defective.
WHEREFORE, respondents' motion to dismiss is DENIED. The main and intervening
petitions are GIVEN DUE COURSE and hereby GRANTED.
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.