DELA CRUZ, EILEEN EIKA M.

ELEMENTS OF STATE

ISSUE: Whether or not the contentions of Magallona et al are

tenable.
HELD:
No. The Supreme Court emphasized that RA 9522, or
UNCLOS, itself is not a means to acquire, or lose, territory. The
treaty and the baseline law has nothing to do with the
acquisition, enlargement, or diminution of the Philippine
territory. What controls when it comes to acquisition or loss of
territory is the international law principle on occupation,
accretion, cession and prescription and NOT the execution
of multilateral treaties on the regulations of sea-use rights or
enacting statutes to comply with the treatys terms to delimit
maritime zones and continental shelves.
The law did not decrease the demarcation of our territory. In
fact it increased it. Under the old law amended by RA 9522 (RA
3046), we adhered with the rectangular lines enclosing the
Philippines. The area that it covered was 440,994 square
nautical miles (sq. na. mi.). But under 9522, and with the
inclusion of the exclusive economic zone, the extent of our
maritime was increased to 586,210 sq. na. mi. (See image
below for comparison)
If any, the baselines law is a notice to the international
community of the scope of the maritime space and submarine
areas within which States parties exercise treaty-based rights.
Anent their particular contentions:
a. The law did not abandon the Sabah claim. This is evident on
the provision of Section 2 of RA 9522:
Section 2. The definition of the baselines of the territorial sea of the
Philippine Archipelago as provided in this Act is without prejudice to the
delineation of the baselines of the territorial sea around the territory of
Sabah, situated in North Borneo, over which the Republic of the
Philippines has acquired dominion and sovereignty.
b. UNCLOS may term our waters as archipelagic waters and
that we may term it as our internal waters, but the bottom
line is that our country exercises sovereignty over these waters

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TERRITORY

1. Merlin Magallona vs Secretary Eduardo

Ermita
655 SCRA 476 Political Law National Territory RA 9522 is
Constitutional
FACTS:
In March 2009, Republic Act 9522, an act defining the
archipelagic baselines of the Philippines was enacted the law
is also known as the Baselines Law. This law was meant to
comply with the terms of the third United Nations Convention
on the Law of the Sea (UNCLOS III), ratified by the Philippines in
February 1984.
Professor Merlin Magallona et al questioned the validity of RA
9522 as they contend, among others, that the law decreased
the national territory of the Philippines hence the law is
unconstitutional. Some of their particular arguments are as
follows:
a. the law abandoned the demarcation set by the Treaty of Paris
and other ancillary treaties this also resulted to the exclusion
of our claim over Sabah;
b. the law, as well as UNCLOS itself, describes the Philippine
waters as archipelagic waters which, in international law,
opens our waters landward of the baselines to maritime
passage by all vessels (innocent passage) and aircrafts
(overflight), undermining Philippine sovereignty and national
security, contravening the countrys nuclear-free policy, and
damaging marine resources, in violation of relevant
constitutional provisions;
c. the classification of the Kalayaan Island Group (KIG), as well
as the Scarborough Shoal (bajo de masinloc), as a regime of
islands pursuant to UNCLOS results in the loss of a large
maritime area but also prejudices the livelihood of subsistence
fishermen.

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and UNCLOS itself recognizes that. However, due to our

observance of international law, we allow the exercise of others
of their right of innocent passage. No modern State can validly
invoke its sovereignty to absolutely forbid innocent passage
that is exercised in accordance with customary international
law without risking retaliatory measures from the international
community.
c. The classification of the KIG (or the Spratlys), as well as the
Scarborough Shoal, as a regime of islands did not diminish our
maritime area. Under UNCLOS and under the baselines law,
since they are regimes of islands, they generate their own
maritime zones in short, they are not to be enclosed within
the baselines of the main archipelago (which is the Philippine
Island group). This is because if we do that, then we will be
enclosing a larger area which would already depart from the
provisions of UNCLOS that the demarcation should follow the
natural contour of the archipelago.
Nevertheless, we still continue to lay claim over the KIG and the
Scarborough Shoal through effective occupation.
NOTES:
Under UNCLOS and the baselines law, we have three levels of
maritime zones where we exercisetreaty-based rights:
a. territorial waters 12 nautical miles from the baselines;
where we exercise sovereignty
b. contiguous zone 24 nautical miles from the baselines;
jurisdiction where we can enforcecustoms, fiscal, immigration,
and sanitation laws (CFIS).
c. exclusive economic zone 200 nautical miles from the
baselines; where we have the right to exploit the living and
non-living resources in the exclusive economic zone
Note: a fourth zone may be added which is the continental
shelf this is covered by Article 77 of the UNCLOS.

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2. Province of North Cotabato vs Government of the

Republic of the Philippines
SELF
FACTS:
On August 5, 2008, the Government of the Republic of the Philippines
and the Moro Islamic Liberation Front (MILF) were scheduled to sign a
Memorandum of Agreement of the Ancestral Domain Aspect of the GRP
- MILF Tripoli Agreement on Peace of 2001 in Kuala Lumpur, Malaysia.
Invoking the right to information on matters of public concern, the
petitioners seek to compel respondents to disclose and furnish them the
complete and official copies of the MA-AD and to prohibit the slated
signing of the MOA-AD and the holding of public consultation thereon.
They also pray that the MOA-AD be declared unconstitutional. The Court
issued a TRO enjoining the GRP from signing the same.
ISSUES:
1. Whether or not the constitutionality and the legality of the MOA is ripe
for adjudication;
2. Whether or not there is a violation of the people's right to information
on matters of public concern (Art 3 Sec. 7) under a state policy of full
disclosure of all its transactions involving public interest (Art 2, Sec 28)
including public consultation under RA 7160 (Local Government Code of

DETERMINATION

1991)
G.R. No. 183591

October 14 2008

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In Pimentel, Jr. v. Aguirre, this Court held:

3. Whether or not the signing of the MOA, the Government of the

x x x [B]y the mere enactment of the questioned law or the approval

have infringed the Constitution and the laws x x x settling the dispute

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,

becomes the duty and the responsibility of the courts.

RECOGNITION OF ANCESTRAL DOMAINS)

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

That the law or act in question is not yet effective does not negate
ripeness.

RULINGS:
1. Yes, the petitions are ripe for adjudication. The failure of the

2. Yes. The Court finds that there is a grave violation of the Constitution

respondents to consult the local government units or communities

involved in the matters of public concern (Sec 7 Art III) under a state

affected constitutes a departure by respondents from their mandate

policy of full disclosure of all its transactions involving public interest (Art

under EO No. 3. Moreover, the respondents exceeded their authority by

2, Sec 28) including public consultation under RA 7160 (Local

the mere act of guaranteeing amendments to the Constitution. Any

Government Code of 1991).

alleged violation of the Constitution by any branch of government is a

(Sec 7 ArtIII) The right to information guarantees the right of the people

proper matter for judicial review.

to demand information, while Sec 28 recognizes the duty of officialdom

As the petitions involve constitutional issues which are of paramount

to give information even if nobody demands. The complete and effective

public interest or of transcendental importance, the Court grants the

exercise of the right to information necessitates that its complementary

petitioners, petitioners-in-intervention and intervening respondents the

provision on public disclosure derive the same self-executory nature,

requisite locus standi in keeping with the liberal stance adopted in David
v. Macapagal- Arroyo.

DELA CRUZ, EILEEN EIKA M.

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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

subject only to reasonable safeguards or limitations as may be provided

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.

involving public interest in the highest order. In declaring that the right to

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 executory nature or commercial character of the agreement.

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. 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.

by law.
The contents of the MOA-AD is a matter of paramount public concern
information contemplates steps and negotiations leading to the
consummation of the contract, jurisprudence finds no distinction as to
E.O. No. 3 itself is replete with mechanics for continuing consultations on
both national and local levels and for a principal forum for consensusbuilding. 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.
3.
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;
Yes. The 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

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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,

b) to revise or amend the Constitution and existing laws to conform to the

MOA:

RECOGNITION OF ANCESTRAL DOMAINS)

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.

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

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.
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

The MOA-AD provides that any provisions of the MOA-AD requiring

.
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 suspensive clause in the MOA-AD viewed in light of the abovediscussed standards.
Given the limited nature of the Presidents 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.

ELEMENTS OF STATE

DELA CRUZ, EILEEN EIKA M.

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them, namely, the associative relationship envisioned between the GRP

delineate and recognize an ancestral domain claim by mere agreement

and the BJE, are unconstitutional, for the concept presupposes that the

or compromise.

associated entity is a state and implies that the same is on its way to
Two, Republic Act No. 7160 or the Local Government Code of 1991

independence.

requires all national offices to conduct consultations beforeany 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

SOVEREIGNTY
3. Taada, et al., v. Angara, et al., G.R. No. 118295,
May 2, 1997

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.

DECISION
(En Banc)

CONCLUSION:
In sum, the Presidential Adviser on the Peace Process committed grave

PANGANIBAN, J.:
I.

THE FACTS

Petitioners Senators Taada, et al. questioned the constitutionality of

the concurrence by the Philippine Senate of the Presidents ratification of
the international Agreement establishing the World Trade Organization
(WTO). They argued that the WTO Agreement violates 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. Further, they
contended that the national treatment and parity provisions of the
WTO Agreement place nationals and products of member countries on

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

ELEMENTS OF STATE

DELA CRUZ, EILEEN EIKA M.

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.
xxx

xxx

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the same footing as Filipinos and local products, in contravention of the

Filipino First policy of our Constitution, and render meaningless the
phrase effectively controlled by Filipinos.

xxx
II.

[T]he 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, 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.

THE ISSUE

Does the 1987 Constitution prohibit our country from participating in

worldwide trade liberalization and economic globalization and from
integrating into a global economy that is liberalized, deregulated and
privatized?
III. THE RULING
[The Court DISMISSED the petition. It sustained the concurrence of the
Philippine Senate of the Presidents ratification of the Agreement
establishing the WTO.]
NO, the 1987 Constitution DOES NOT prohibit our country from
participating in worldwide trade liberalization and economic
globalization and from integrating into a global economy that is
liberalized, deregulated and privatized.
There are enough balancing provisions in the Constitution to allow the
Senate to ratify the Philippine concurrence in the WTO Agreement.
[W]hile 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

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ELEMENTS OF STATE

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. Ineludibly, 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.

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xxx

xxx

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