You are on page 1of 297

G.R. No.

158088 July 6, 2005

SENATOR AQUILINO PIMENTEL, JR., REP. ETTA ROSALES, PHILIPPINE


COALITION FOR THE ESTABLISHMENT OF THE INTERNATIONAL CRIMINAL
COURT, TASK FORCE DETAINEES OF THE PHILIPPINES, FAMILIES OF VICTIMS
OF INVOLUNTARY DISAPPEARANCES, BIANCA HACINTHA R. ROQUE,
HARRISON JACOB R. ROQUE, AHMED PAGLINAWAN, RON P. SALO,* LEAVIDES
G. DOMINGO, EDGARDO CARLO VISTAN, NOEL VILLAROMAN, CELESTE
CEMBRANO, LIZA ABIERA, JAIME ARROYO, MARWIL LLASOS, CRISTINA
ATENDIDO, ISRAFEL FAGELA, and ROMEL BAGARES, Petitioners,
vs.
OFFICE OF THE EXECUTIVE SECRETARY, HON. ALBERTO ROMULO, and the
DEPARTMENT OF FOREIGN AFFAIRS, represented by HON. BLAS OPLE,
Respondents.

DECISION

PUNO J.:

This is a petition for mandamus filed by petitioners to compel the


Office of the Executive Secretary and the Department of Foreign Affairs to transmit the signed
copy of the Rome Statute of the International Criminal Court to the Senate of the Philippines for
its concurrence in accordance with Section 21, Article VII of the 1987 Constitution.

The Rome Statute established the International Criminal Court which "shall have the power to
exercise its jurisdiction over persons for the most serious crimes of international concern xxx and
shall be complementary to the national criminal jurisdictions."1 Its jurisdiction covers the crime
of genocide, crimes against humanity, war crimes and the crime of aggression as defined in the
Statute.2 The Statute was opened for signature by all states in Rome on July 17, 1998 and had
remained open for signature until December 31, 2000 at the United Nations Headquarters in New
York. The Philippines signed the Statute on December 28, 2000 through Charge d Affairs
Enrique A. Manalo of the Philippine Mission to the United Nations.3 Its provisions, however,
require that it be subject to ratification, acceptance or approval of the signatory states.4

Petitioners filed the instant petition to compel the respondents the Office of the Executive
Secretary and the Department of Foreign Affairs to transmit the signed text of the treaty to the
Senate of the Philippines for ratification.

It is the theory of the petitioners that ratification of a treaty, under both domestic law and
international law, is a function of the Senate. Hence, it is the duty of the executive department to
transmit the signed copy of the Rome Statute to the Senate to allow it to exercise its discretion
with respect to ratification of treaties. Moreover, petitioners submit that the Philippines has a
ministerial duty to ratify the Rome Statute under treaty law and customary international law.
Petitioners invoke the Vienna Convention on the Law of Treaties enjoining the states to refrain
from acts which would defeat the object and purpose of a treaty when they have signed the treaty
prior to ratification unless they have made their intention clear not to become parties to the
treaty.5

The Office of the Solicitor General, commenting for the respondents, questioned the standing of
the petitioners to file the instant suit. It also contended that the petition at bar violates the rule on
hierarchy of courts. On the substantive issue raised by petitioners, respondents argue that the
executive department has no duty to transmit the Rome Statute to the Senate for concurrence.

A petition for mandamus may be filed 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.6 We have held that to be given due course, a petition for
mandamus must have been instituted by a party aggrieved by the alleged inaction of any tribunal,
corporation, board or person which unlawfully excludes said party from the enjoyment of a legal
right. The petitioner in every case must therefore be an aggrieved party in the sense that he
possesses a clear legal right to be enforced and a direct interest in the duty or act to be
performed.7 The Court will exercise its power of judicial review only if the case is brought
before it by a party who has the legal standing to raise the constitutional or legal question. "Legal
standing" means a personal and substantial interest in the case such that the party has sustained
or will sustain direct injury as a result of the government act that is being challenged. The term
"interest" is material interest, an interest in issue and to be affected by the decree, as
distinguished from mere interest in the question involved, or a mere incidental interest.8

The petition at bar was filed by Senator Aquilino Pimentel, Jr. who asserts his legal standing to
file the suit as member of the Senate; Congresswoman Loretta Ann Rosales, a member of the
House of Representatives and Chairperson of its Committee on Human Rights; the Philippine
Coalition for the Establishment of the International Criminal Court which is composed of
individuals and corporate entities dedicated to the Philippine ratification of the Rome Statute; the
Task Force Detainees of the Philippines, a juridical entity with the avowed purpose of promoting
the cause of human rights and human rights victims in the country; the Families of Victims of
Involuntary Disappearances, a juridical entity duly organized and existing pursuant to Philippine
Laws with the avowed purpose of promoting the cause of families and victims of human rights
violations in the country; Bianca Hacintha Roque and Harrison Jacob Roque, aged two (2) and
one (1), respectively, at the time of filing of the instant petition, and suing under the doctrine of
inter-generational rights enunciated in the case of Oposa vs. Factoran, Jr.;9 and a group of fifth
year working law students from the University of the Philippines College of Law who are suing
as taxpayers.
The question in standing is whether a party has alleged such a personal stake in the outcome of
the controversy as to assure that concrete adverseness which sharpens the presentation of issues
upon which the court so largely depends for illumination of difficult constitutional questions.10

We find that among the petitioners, only Senator Pimentel has the legal standing to file the
instant suit. The other petitioners maintain their standing as advocates and defenders of human
rights, and as citizens of the country. They have not shown, however, that they have sustained or
will sustain a direct injury from the non-transmittal of the signed text of the Rome Statute to the
Senate. Their contention that they will be deprived of their remedies for the protection and
enforcement of their rights does not persuade. The Rome Statute is intended to complement
national criminal laws and courts. Sufficient remedies are available under our national laws to
protect our citizens against human rights violations and petitioners can always seek redress for
any abuse in our domestic courts.

As regards Senator Pimentel, it has been held that "to the extent the powers of Congress are
impaired, so is the power of each member thereof, since his office confers a right to participate in
the exercise of the powers of that institution."11 Thus, legislators have the standing to maintain
inviolate the prerogatives, powers and privileges vested by the Constitution in their office and are
allowed to sue to question the validity of any official action which they claim infringes their
prerogatives as legislators. The petition at bar invokes the power of the Senate to grant or
withhold its concurrence to a treaty entered into by the executive branch, in this case, the Rome
Statute. The petition seeks to order the executive branch to transmit the copy of the treaty to the
Senate to allow it to exercise such authority. Senator Pimentel, as member of the institution,
certainly has the legal standing to assert such authority of the Senate.

We now go to the substantive issue.

The core issue in this petition for mandamus is whether the Executive Secretary and the
Department of Foreign Affairs have a ministerial duty to transmit to the Senate the copy of the
Rome Statute signed by a member of the Philippine Mission to the United Nations even without
the signature of the President.

We rule in the negative.

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 countrys sole representative with foreign nations.12
As the chief architect of foreign policy, the President acts as the countrys 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.13 In the realm of
treaty-making, the President has the sole authority to negotiate with other states.
Nonetheless, while the President has the sole authority to negotiate and enter into treaties, the
Constitution provides a limitation to his power by requiring the concurrence of 2/3 of all the
members of the Senate for the validity of the treaty entered into by him. Section 21, Article VII
of the 1987 Constitution provides that "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." The 1935
and the 1973 Constitution also required the concurrence by the legislature to the treaties entered
into by the executive. Section 10 (7), Article VII of the 1935 Constitution provided:

Sec. 10. (7) The President shall have the power, with the concurrence of two-thirds of all the
Members of the Senate, to make treaties xxx.

Section 14 (1) Article VIII of the 1973 Constitution stated:

Sec. 14. (1) Except as otherwise provided in this Constitution, no treaty shall be valid and
effective unless concurred in by a majority of all the Members of the Batasang Pambansa.

The participation of the legislative branch in the treaty-making process was deemed essential to
provide a check on the executive in the field of foreign relations.14 By requiring the concurrence
of the legislature in the treaties entered into by the President, the Constitution ensures a healthy
system of checks and balance necessary in the nations pursuit of political maturity and growth.15

In filing this petition, the petitioners interpret Section 21, Article VII of the 1987 Constitution to
mean that the power to ratify treaties belongs to the Senate.

We disagree.

Justice Isagani Cruz, in his book on International Law, describes the treaty-making process in
this wise:

The usual steps in the treaty-making process are: negotiation, signature, ratification, and
exchange of the instruments of ratification. The treaty may then be submitted for registration and
publication under the U.N. Charter, although this step is not essential to the validity of the
agreement as between the parties.

Negotiation may be undertaken directly by the head of state but he now usually assigns this task
to his authorized representatives. These representatives are provided with credentials known as
full powers, which they exhibit to the other negotiators at the start of the formal discussions. It is
standard practice for one of the parties to submit a draft of the proposed treaty which, together
with the counter-proposals, becomes the basis of the subsequent negotiations. The negotiations
may be brief or protracted, depending on the issues involved, and may even "collapse" in case
the parties are unable to come to an agreement on the points under consideration.
If and when the negotiators finally decide on the terms of the treaty, the same is opened for
signature. This step is primarily intended as a means of authenticating the instrument and for the
purpose of symbolizing the good faith of the parties; but, significantly, it does not indicate the
final consent of the state in cases where ratification of the treaty is required. The document
is ordinarily signed in accordance with the alternat, that is, each of the several negotiators is
allowed to sign first on the copy which he will bring home to his own state.

Ratification, which is the next step, is the formal act by which a state confirms and accepts the
provisions of a treaty concluded by its representatives. The purpose of ratification is to enable
the contracting states to examine the treaty more closely and to give them an opportunity to
refuse to be bound by it should they find it inimical to their interests. It is for this reason
that most treaties are made subject to the scrutiny and consent of a department of the
government other than that which negotiated them.

xxx

The last step in the treaty-making process is the exchange of the instruments of ratification,
which usually also signifies the effectivity of the treaty unless a different date has been agreed
upon by the parties. Where ratification is dispensed with and no effectivity clause is embodied in
the treaty, the instrument is deemed effective upon its signature.16 [emphasis supplied]

Petitioners arguments equate the signing of the treaty by the Philippine representative with
ratification. It should be underscored that the signing of the treaty and the ratification are two
separate and distinct steps in the treaty-making process. As earlier discussed, the signature is
primarily intended as a means of authenticating the instrument and as a symbol of the good faith
of the parties. It is usually performed by the states authorized representative in the diplomatic
mission. Ratification, on the other hand, is the formal act by which a state confirms and accepts
the provisions of a treaty concluded by its representative. It is generally held to be an executive
act, undertaken by the head of the state or of the government.17 Thus, Executive Order No. 459
issued by President Fidel V. Ramos on November 25, 1997 provides the guidelines in the
negotiation of international agreements and its ratification. It mandates that after the treaty has
been signed by the Philippine representative, the same shall be transmitted to the Department of
Foreign Affairs. The Department of Foreign Affairs shall then prepare the ratification papers and
forward the signed copy of the treaty to the President for ratification. After the President has
ratified the treaty, the Department of Foreign Affairs shall submit the same to the Senate for
concurrence. Upon receipt of the concurrence of the Senate, the Department of Foreign Affairs
shall comply with the provisions of the treaty to render it effective. Section 7 of Executive Order
No. 459 reads:
Sec. 7. Domestic Requirements for the Entry into Force of a Treaty or an Executive
Agreement. The domestic requirements for the entry into force of a treaty or an executive
agreement, or any amendment thereto, shall be as follows:

A. Executive Agreements.

i. All executive agreements shall be transmitted to the Department of Foreign Affairs after their
signing for the preparation of the ratification papers. The transmittal shall include the highlights
of the agreements and the benefits which will accrue to the Philippines arising from them.

ii. The Department of Foreign Affairs, pursuant to the endorsement by the concerned agency,
shall transmit the agreements to the President of the Philippines for his ratification. The original
signed instrument of ratification shall then be returned to the Department of Foreign Affairs for
appropriate action.

B. Treaties.

i. All treaties, regardless of their designation, shall comply with the requirements provided in
sub-paragraph[s] 1 and 2, item A (Executive Agreements) of this Section. In addition, the
Department of Foreign Affairs shall submit the treaties to the Senate of the Philippines for
concurrence in the ratification by the President. A certified true copy of the treaties, in such
numbers as may be required by the Senate, together with a certified true copy of the ratification
instrument, shall accompany the submission of the treaties to the Senate.

ii. Upon receipt of the concurrence by the Senate, the Department of Foreign Affairs shall
comply with the provision of the treaties in effecting their entry into force.

Petitioners submission that the Philippines is bound under treaty law and international law to
ratify the treaty which it has signed is without basis. The signature does not signify the final
consent of the state to the treaty. It is the ratification that binds the state to the provisions thereof.
In fact, the Rome Statute itself requires that the signature of the representatives of the states be
subject to ratification, acceptance or approval of the signatory states. Ratification is the act by
which the provisions of a treaty are formally confirmed and approved by a State. By ratifying a
treaty signed in its behalf, a state expresses its willingness to be bound by the provisions of such
treaty. After the treaty is signed by the states representative, the President, being accountable to
the people, is burdened with the responsibility and the duty to carefully study the contents of the
treaty and ensure that they are not inimical to the interest of the state and its people. Thus, the
President has the discretion even after the signing of the treaty by the Philippine representative
whether or not to ratify the same. The Vienna Convention on the Law of Treaties does not
contemplate to defeat or even restrain this power of the head of states. If that were so, the
requirement of ratification of treaties would be pointless and futile. It has been held that a state
has no legal or even moral duty to ratify a treaty which has been signed by its plenipotentiaries.18
There is no legal obligation to ratify a treaty, but it goes without saying that the refusal must be
based on substantial grounds and not on superficial or whimsical reasons. Otherwise, the other
state would be justified in taking offense.19

It should be emphasized that under our Constitution, the power to ratify is vested in the
President, subject to the concurrence of the Senate. The role of the Senate, however, is limited
only to giving or withholding its consent, or concurrence, to the ratification.20 Hence, it is within
the authority of the President to refuse to submit a treaty to the Senate or, having secured its
consent for its ratification, refuse to ratify it.21 Although the refusal of a state to ratify a treaty
which has been signed in its behalf is a serious step that should not be taken lightly,22 such
decision is within the competence of the President alone, which cannot be encroached by this
Court via a writ of mandamus. This Court has no jurisdiction over actions seeking to enjoin the
President in the performance of his official duties.23 The Court, therefore, cannot issue the writ of
mandamus prayed for by the petitioners as it is beyond its jurisdiction to compel the executive
branch of the government to transmit the signed text of Rome Statute to the Senate.

IN VIEW WHEREOF, the petition is DISMISSED.

SO ORDERED.

REYNATO S. PUNO

G.R. No. L-7995 May 31, 1957

LAO H. ICHONG, in his own behalf and in behalf of other alien residents, corporations
and partnerships adversely affected. by Republic Act No. 1180, petitioner,
vs.
JAIME HERNANDEZ, Secretary of Finance, and MARCELINO SARMIENTO, City
Treasurer of Manila, respondents.

Ozaeta, Lichauco and Picazo and Sycip, Quisumbing, Salazar and Associates for petitioner.
Office of the Solicitor General Ambrosio Padilla and Solicitor Pacifico P. de Castro for
respondent Secretary of Finance.
City Fiscal Eugenio Angeles and Assistant City Fiscal Eulogio S. Serrano for respondent City
Treasurer.
Dionisio Reyes as Amicus Curiae.
Marcial G. Mendiola as Amicus Curiae.
Emiliano R. Navarro as Amicus Curiae.

LABRADOR, J.:

I. The case and issue, in general


This Court has before it the delicate task of passing upon the validity and constitutionality of a
legislative enactment, fundamental and far-reaching in significance. The enactment poses
questions of due process, police power and equal protection of the laws. It also poses an
important issue of fact, that is whether the conditions which the disputed law purports to remedy
really or actually exist. Admittedly springing from a deep, militant, and positive nationalistic
impulse, the law purports to protect citizen and country from the alien retailer. Through it, and
within the field of economy it regulates, Congress attempts to translate national aspirations for
economic independence and national security, rooted in the drive and urge for national survival
and welfare, into a concrete and tangible measures designed to free the national retailer from the
competing dominance of the alien, so that the country and the nation may be free from a
supposed economic dependence and bondage. Do the facts and circumstances justify the
enactment?

II. Pertinent provisions of Republic Act No. 1180

Republic Act No. 1180 is entitled "An Act to Regulate the Retail Business." In effect it
nationalizes the retail trade business. The main provisions of the Act are: (1) a prohibition against
persons, not citizens of the Philippines, and against associations, partnerships, or corporations the
capital of which are not wholly owned by citizens of the Philippines, from engaging directly or
indirectly in the retail trade; (2) an exception from the above prohibition in favor of aliens
actually engaged in said business on May 15, 1954, who are allowed to continue to engaged
therein, unless their licenses are forfeited in accordance with the law, until their death or
voluntary retirement in case of natural persons, and for ten years after the approval of the Act or
until the expiration of term in case of juridical persons; (3) an exception therefrom in favor of
citizens and juridical entities of the United States; (4) a provision for the forfeiture of licenses (to
engage in the retail business) for violation of the laws on nationalization, control weights and
measures and labor and other laws relating to trade, commerce and industry; (5) a prohibition
against the establishment or opening by aliens actually engaged in the retail business of
additional stores or branches of retail business, (6) a provision requiring aliens actually engaged
in the retail business to present for registration with the proper authorities a verified statement
concerning their businesses, giving, among other matters, the nature of the business, their assets
and liabilities and their offices and principal offices of judicial entities; and (7) a provision
allowing the heirs of aliens now engaged in the retail business who die, to continue such business
for a period of six months for purposes of liquidation.

III. Grounds upon which petition is based-Answer thereto

Petitioner, for and in his own behalf and on behalf of other alien residents corporations and
partnerships adversely affected by the provisions of Republic Act. No. 1180, brought this action
to obtain a judicial declaration that said Act is unconstitutional, and to enjoin the Secretary of
Finance and all other persons acting under him, particularly city and municipal treasurers, from
enforcing its provisions. Petitioner attacks the constitutionality of the Act, contending that: (1) it
denies to alien residents the equal protection of the laws and deprives of their liberty and
property without due process of law ; (2) the subject of the Act is not expressed or comprehended
in the title thereof; (3) the Act violates international and treaty obligations of the Republic of the
Philippines; (4) the provisions of the Act against the transmission by aliens of their retail
business thru hereditary succession, and those requiring 100% Filipino capitalization for a
corporation or entity to entitle it to engage in the retail business, violate the spirit of Sections 1
and 5, Article XIII and Section 8 of Article XIV of the Constitution.

In answer, the Solicitor-General and the Fiscal of the City of Manila contend that: (1) the Act
was passed in the valid exercise of the police power of the State, which exercise is authorized in
the Constitution in the interest of national economic survival; (2) the Act has only one subject
embraced in the title; (3) no treaty or international obligations are infringed; (4) as regards
hereditary succession, only the form is affected but the value of the property is not impaired, and
the institution of inheritance is only of statutory origin.

IV. Preliminary consideration of legal principles involved

a. The police power.

There is no question that the Act was approved in the exercise of the police power, but petitioner
claims that its exercise in this instance is attended by a violation of the constitutional
requirements of due process and equal protection of the laws. But before proceeding to the
consideration and resolution of the ultimate issue involved, it would be well to bear in mind
certain basic and fundamental, albeit preliminary, considerations in the determination of the ever
recurrent conflict between police power and the guarantees of due process and equal protection
of the laws. What is the scope of police power, and how are the due process and equal protection
clauses related to it? What is the province and power of the legislature, and what is the function
and duty of the courts? These consideration must be clearly and correctly understood that their
application to the facts of the case may be brought forth with clarity and the issue accordingly
resolved.

It has been said the police power is so far - reaching in scope, that it has become almost
impossible to limit its sweep. As it derives its existence from the very existence of the State
itself, it does not need to be expressed or defined in its scope; it is said to be co-extensive with
self-protection and survival, and as such it is the most positive and active of all governmental
processes, the most essential, insistent and illimitable. Especially is it so under a modern
democratic framework where the demands of society and of nations have multiplied to almost
unimaginable proportions; the field and scope of police power has become almost boundless, just
as the fields of public interest and public welfare have become almost all-embracing and have
transcended human foresight. Otherwise stated, as we cannot foresee the needs and demands of
public interest and welfare in this constantly changing and progressive world, so we cannot
delimit beforehand the extent or scope of police power by which and through which the State
seeks to attain or achieve interest or welfare. So it is that Constitutions do not define the scope or
extent of the police power of the State; what they do is to set forth the limitations thereof. The
most important of these are the due process clause and the equal protection clause.

b. Limitations on police power.

The basic limitations of due process and equal protection are found in the following provisions
of our Constitution:
SECTION 1.(1) No person shall be deprived of life, liberty or property without due
process of law, nor any person be denied the equal protection of the laws. (Article III,
Phil. Constitution)

These constitutional guarantees which embody the essence of individual liberty and freedom in
democracies, are not limited to citizens alone but are admittedly universal in their application,
without regard to any differences of race, of color, or of nationality. (Yick Wo vs. Hopkins, 30, L.
ed. 220, 226.)

c. The, equal protection clause.

The equal protection of the law clause is against undue favor and individual or class privilege, as
well as hostile discrimination or the oppression of inequality. It is not intended to prohibit
legislation, which is limited either in the object to which it is directed or by territory within
which is to operate. It does not demand absolute equality among residents; it merely requires that
all persons shall be treated alike, under like circumstances and conditions both as to privileges
conferred and liabilities enforced. The equal protection clause is not infringed by legislation
which applies only to those persons falling within a specified class, if it applies alike to all
persons within such class, and reasonable grounds exists for making a distinction between those
who fall within such class and those who do not. (2 Cooley, Constitutional Limitations, 824-
825.)

d. The due process clause.

The due process clause has to do with the reasonableness of legislation enacted in pursuance of
the police power. Is there public interest, a public purpose; is public welfare involved? Is the Act
reasonably necessary for the accomplishment of the legislature's purpose; is it not unreasonable,
arbitrary or oppressive? Is there sufficient foundation or reason in connection with the matter
involved; or has there not been a capricious use of the legislative power? Can the aims conceived
be achieved by the means used, or is it not merely an unjustified interference with private
interest? These are the questions that we ask when the due process test is applied.

The conflict, therefore, between police power and the guarantees of due process and equal
protection of the laws is more apparent than real. Properly related, the power and the guarantees
are supposed to coexist. The balancing is the essence or, shall it be said, the indispensable means
for the attainment of legitimate aspirations of any democratic society. There can be no absolute
power, whoever exercise it, for that would be tyranny. Yet there can neither be absolute liberty,
for that would mean license and anarchy. So the State can deprive persons of life, liberty and
property, provided there is due process of law; and persons may be classified into classes and
groups, provided everyone is given the equal protection of the law. The test or standard, as
always, is reason. The police power legislation must be firmly grounded on public interest and
welfare, and a reasonable relation must exist between purposes and means. And if distinction and
classification has been made, there must be a reasonable basis for said distinction.

e. Legislative discretion not subject to judicial review.


Now, in this matter of equitable balancing, what is the proper place and role of the courts? It
must not be overlooked, in the first place, that the legislature, which is the constitutional
repository of police power and exercises the prerogative of determining the policy of the State, is
by force of circumstances primarily the judge of necessity, adequacy or reasonableness and
wisdom, of any law promulgated in the exercise of the police power, or of the measures adopted
to implement the public policy or to achieve public interest. On the other hand, courts, although
zealous guardians of individual liberty and right, have nevertheless evinced a reluctance to
interfere with the exercise of the legislative prerogative. They have done so early where there has
been a clear, patent or palpable arbitrary and unreasonable abuse of the legislative prerogative.
Moreover, courts are not supposed to override legitimate policy, and courts never inquire into the
wisdom of the law.

V. Economic problems sought to be remedied

With the above considerations in mind, we will now proceed to delve directly into the issue
involved. If the disputed legislation were merely a regulation, as its title indicates, there would be
no question that it falls within the legitimate scope of legislative power. But it goes further and
prohibits a group of residents, the aliens, from engaging therein. The problem becomes more
complex because its subject is a common, trade or occupation, as old as society itself, which
from the immemorial has always been open to residents, irrespective of race, color or citizenship.

a. Importance of retail trade in the economy of the nation.

In a primitive economy where families produce all that they consume and consume all that they
produce, the dealer, of course, is unknown. But as group life develops and families begin to live
in communities producing more than what they consume and needing an infinite number of
things they do not produce, the dealer comes into existence. As villages develop into big
communities and specialization in production begins, the dealer's importance is enhanced. Under
modern conditions and standards of living, in which man's needs have multiplied and diversified
to unlimited extents and proportions, the retailer comes as essential as the producer, because thru
him the infinite variety of articles, goods and needed for daily life are placed within the easy
reach of consumers. Retail dealers perform the functions of capillaries in the human body, thru
which all the needed food and supplies are ministered to members of the communities
comprising the nation.

There cannot be any question about the importance of the retailer in the life of the community.
He ministers to the resident's daily needs, food in all its increasing forms, and the various little
gadgets and things needed for home and daily life. He provides his customers around his store
with the rice or corn, the fish, the salt, the vinegar, the spices needed for the daily cooking. He
has cloths to sell, even the needle and the thread to sew them or darn the clothes that wear out.
The retailer, therefore, from the lowly peddler, the owner of a small sari-sari store, to the
operator of a department store or, a supermarket is so much a part of day-to-day existence.

b. The alien retailer's trait.


The alien retailer must have started plying his trades in this country in the bigger centers of
population (Time there was when he was unknown in provincial towns and villages). Slowly but
gradually be invaded towns and villages; now he predominates in the cities and big centers of
population. He even pioneers, in far away nooks where the beginnings of community life appear,
ministering to the daily needs of the residents and purchasing their agricultural produce for sale
in the towns. It is an undeniable fact that in many communities the alien has replaced the native
retailer. He has shown in this trade, industry without limit, and the patience and forbearance of a
slave.

Derogatory epithets are hurled at him, but he laughs these off without murmur; insults of ill-bred
and insolent neighbors and customers are made in his face, but he heeds them not, and he forgets
and forgives. The community takes note of him, as he appears to be harmless and extremely
useful.

c. Alleged alien control and dominance.

There is a general feeling on the part of the public, which appears to be true to fact, about the
controlling and dominant position that the alien retailer holds in the nation's economy. Food and
other essentials, clothing, almost all articles of daily life reach the residents mostly through him.
In big cities and centers of population he has acquired not only predominance, but apparent
control over distribution of almost all kinds of goods, such as lumber, hardware, textiles,
groceries, drugs, sugar, flour, garlic, and scores of other goods and articles. And were it not for
some national corporations like the Naric, the Namarco, the Facomas and the Acefa, his control
over principal foods and products would easily become full and complete.

Petitioner denies that there is alien predominance and control in the retail trade. In one breath it
is said that the fear is unfounded and the threat is imagined; in another, it is charged that the law
is merely the result of radicalism and pure and unabashed nationalism. Alienage, it is said, is not
an element of control; also so many unmanageable factors in the retail business make control
virtually impossible. The first argument which brings up an issue of fact merits serious
consideration. The others are matters of opinion within the exclusive competence of the
legislature and beyond our prerogative to pass upon and decide.

The best evidence are the statistics on the retail trade, which put down the figures in black and
white. Between the constitutional convention year (1935), when the fear of alien domination and
control of the retail trade already filled the minds of our leaders with fears and misgivings, and
the year of the enactment of the nationalization of the retail trade act (1954), official statistics
unmistakably point out to the ever-increasing dominance and control by the alien of the retail
trade, as witness the following tables:

Assets Gross Sales

Year and No.- Pesos Per cent Pesos Per cent


Retailers Establishme Distributi Distributi
Nationality nts on on

194
1:

Filipino 106,671 200,323,1 55.82 174,181,9 51.74


.......... 38 24

Chines 15,356 118,348,6 32.98 148,813,2 44.21


e ......... 92 39
..

Others 1,646 40,187,09 11.20 13,630,23 4.05


............ 0 9

194
7:

Filipino 111,107 208,658,9 65.05 279,583,3 57.03


.......... 46 33

Chines 13,774 106,156,2 33.56 205,701,1 41.96


e ......... 18 34
..

Others 354 8,761,260 .49 4,927,168 1.01


...........

194 (Censu
8: s)

Filipino 113,631 213,342,2 67.30 467,161,6 60.51


.......... 64 67

Chines 12,087 93,155,45 29.38 294,894,2 38.20


e ......... 9 27
.

Others 422 10,514,67 3.32 9,995,402 1.29


.......... 5

194
9:

Filipino 113,659 213,451,6 60.89 462,532,9 53.47


.......... 02 01

Chines 16,248 125,223,3 35.72 392,414,8 45.36


e ......... 36 75
.

Others 486 12,056,36 3.39 10,078,36 1.17


.......... 5 4

195
1:

Filipino 119,352 224,053,6 61.09 466,058,0 53.07


......... 20 52

Chines 17,429 134,325,3 36.60 404,481,3 46.06


e ......... 03 84
.
Others 347 8,614,025 2.31 7,645,327 87
..........

AVERAGE
ASSETS AND GROSS SALES PER ESTABLISHMENT

Item Gross
Year and Retailer's
Assets Sales
Nationality
(Pesos) (Pesos)

1941:

Filipino ...................................... 1,878 1,633


.......

Chinese ..................................... 7,707 9,691


.........

Others ....................................... 24,415 8,281


........

1947:

Filipino ...................................... 1,878 2,516


.......
Chinese ..................................... 7,707 14,934
......

Others ....................................... 24,749 13,919


.......

1948: (Census)

Filipino ...................................... 1,878 4,111


.......

Chinese ..................................... 7,707 24,398


........

Others ....................................... 24,916 23,686


.......

1949:

Filipino ...................................... 1,878 4,069


.......

Chinese ..................................... 7,707 24,152


.........

Others ....................................... 24,807 20,737


.......
1951:

Filipino ...................................... 1,877 3,905


.......

Chinese ..................................... 7,707 33,207


........

Others ....................................... 24,824 22,033


........

(Estimated Assets and Gross Sales of Retail Establishments, By Year and Nationality of
Owners, Benchmark: 1948 Census, issued by the Bureau of Census and Statistics,
Department of Commerce and Industry; pp. 18-19 of Answer.)

The above statistics do not include corporations and partnerships, while the figures on Filipino
establishments already include mere market vendors, whose capital is necessarily small..

The above figures reveal that in percentage distribution of assests and gross sales, alien
participation has steadily increased during the years. It is true, of course, that Filipinos have the
edge in the number of retailers, but aliens more than make up for the numerical gap through their
assests and gross sales which average between six and seven times those of the very many
Filipino retailers. Numbers in retailers, here, do not imply superiority; the alien invests more
capital, buys and sells six to seven times more, and gains much more. The same official report,
pointing out to the known predominance of foreign elements in the retail trade, remarks that the
Filipino retailers were largely engaged in minor retailer enterprises. As observed by respondents,
the native investment is thinly spread, and the Filipino retailer is practically helpless in matters of
capital, credit, price and supply.

d. Alien control and threat, subject of apprehension in Constitutional convention.

It is this domination and control, which we believe has been sufficiently shown to exist, that is
the legislature's target in the enactment of the disputed nationalization would never have been
adopted. The framers of our Constitution also believed in the existence of this alien dominance
and control when they approved a resolution categorically declaring among other things, that "it
is the sense of the Convention that the public interest requires the nationalization of the retail
trade; . . . ." (II Aruego, The Framing of the Philippine Constitution, 662-663, quoted on page 67
of Petitioner.) That was twenty-two years ago; and the events since then have not been either
pleasant or comforting. Dean Sinco of the University of the Philippines College of Law,
commenting on the patrimony clause of the Preamble opines that the fathers of our Constitution
were merely translating the general preoccupation of Filipinos "of the dangers from alien
interests that had already brought under their control the commercial and other economic
activities of the country" (Sinco, Phil. Political Law, 10th ed., p. 114); and analyzing the concern
of the members of the constitutional convention for the economic life of the citizens, in
connection with the nationalistic provisions of the Constitution, he says:

But there has been a general feeling that alien dominance over the economic life of the
country is not desirable and that if such a situation should remain, political independence
alone is no guarantee to national stability and strength. Filipino private capital is not big
enough to wrest from alien hands the control of the national economy. Moreover, it is but
of recent formation and hence, largely inexperienced, timid and hesitant. Under such
conditions, the government as the instrumentality of the national will, has to step in and
assume the initiative, if not the leadership, in the struggle for the economic freedom of
the nation in somewhat the same way that it did in the crusade for political freedom. Thus
. . . it (the Constitution) envisages an organized movement for the protection of the nation
not only against the possibilities of armed invasion but also against its economic
subjugation by alien interests in the economic field. (Phil. Political Law by Sinco, 10th
ed., p. 476.)

Belief in the existence of alien control and predominance is felt in other quarters. Filipino
businessmen, manufacturers and producers believe so; they fear the dangers coming from alien
control, and they express sentiments of economic independence. Witness thereto is Resolution
No. 1, approved on July 18, 1953, of the Fifth National convention of Filipino Businessmen, and
a similar resolution, approved on March 20, 1954, of the Second National Convention of
Manufacturers and Producers. The man in the street also believes, and fears, alien predominance
and control; so our newspapers, which have editorially pointed out not only to control but to
alien stranglehold. We, therefore, find alien domination and control to be a fact, a reality proved
by official statistics, and felt by all the sections and groups that compose the Filipino community.

e. Dangers of alien control and dominance in retail.

But the dangers arising from alien participation in the retail trade does not seem to lie in the
predominance alone; there is a prevailing feeling that such predominance may truly endanger the
national interest. With ample capital, unity of purpose and action and thorough organization,
alien retailers and merchants can act in such complete unison and concert on such vital matters as
the fixing of prices, the determination of the amount of goods or articles to be made available in
the market, and even the choice of the goods or articles they would or would not patronize or
distribute, that fears of dislocation of the national economy and of the complete subservience of
national economy and of the consuming public are not entirely unfounded. Nationals, producers
and consumers alike can be placed completely at their mercy. This is easily illustrated. Suppose
an article of daily use is desired to be prescribed by the aliens, because the producer or importer
does not offer them sufficient profits, or because a new competing article offers bigger profits for
its introduction. All that aliens would do is to agree to refuse to sell the first article, eliminating it
from their stocks, offering the new one as a substitute. Hence, the producers or importers of the
prescribed article, or its consumers, find the article suddenly out of the prescribed article, or its
consumers, find the article suddenly out of circulation. Freedom of trade is thus curtailed and
free enterprise correspondingly suppressed.

We can even go farther than theoretical illustrations to show the pernicious influences of alien
domination. Grave abuses have characterized the exercise of the retail trade by aliens. It is a fact
within judicial notice, which courts of justice may not properly overlook or ignore in the interests
of truth and justice, that there exists a general feeling on the part of the public that alien
participation in the retail trade has been attended by a pernicious and intolerable practices, the
mention of a few of which would suffice for our purposes; that at some time or other they have
cornered the market of essential commodities, like corn and rice, creating artificial scarcities to
justify and enhance profits to unreasonable proportions; that they have hoarded essential foods to
the inconvenience and prejudice of the consuming public, so much so that the Government has
had to establish the National Rice and Corn Corporation to save the public from their continuous
hoarding practices and tendencies; that they have violated price control laws, especially on foods
and essential commodities, such that the legislature had to enact a law (Sec. 9, Republic Act No.
1168), authorizing their immediate and automatic deportation for price control convictions; that
they have secret combinations among themselves to control prices, cheating the operation of the
law of supply and demand; that they have connived to boycott honest merchants and traders who
would not cater or yield to their demands, in unlawful restraint of freedom of trade and
enterprise. They are believed by the public to have evaded tax laws, smuggled goods and money
into and out of the land, violated import and export prohibitions, control laws and the like, in
derision and contempt of lawful authority. It is also believed that they have engaged in corrupting
public officials with fabulous bribes, indirectly causing the prevalence of graft and corruption in
the Government. As a matter of fact appeals to unscrupulous aliens have been made both by the
Government and by their own lawful diplomatic representatives, action which impliedly admits a
prevailing feeling about the existence of many of the above practices.

The circumstances above set forth create well founded fears that worse things may come in the
future. The present dominance of the alien retailer, especially in the big centers of population,
therefore, becomes a potential source of danger on occasions of war or other calamity. We do not
have here in this country isolated groups of harmless aliens retailing goods among nationals;
what we have are well organized and powerful groups that dominate the distribution of goods
and commodities in the communities and big centers of population. They owe no allegiance or
loyalty to the State, and the State cannot rely upon them in times of crisis or emergency. While
the national holds his life, his person and his property subject to the needs of his country, the
alien may even become the potential enemy of the State.

f. Law enacted in interest of national economic survival and security.

We are fully satisfied upon a consideration of all the facts and circumstances that the disputed
law is not the product of racial hostility, prejudice or discrimination, but the expression of the
legitimate desire and determination of the people, thru their authorized representatives, to free
the nation from the economic situation that has unfortunately been saddled upon it rightly or
wrongly, to its disadvantage. The law is clearly in the interest of the public, nay of the national
security itself, and indisputably falls within the scope of police power, thru which and by which
the State insures its existence and security and the supreme welfare of its citizens.

VI. The Equal Protection Limitation

a. Objections to alien participation in retail trade. The next question that now poses solution
is, Does the law deny the equal protection of the laws? As pointed out above, the mere fact of
alienage is the root and cause of the distinction between the alien and the national as a trader. The
alien resident owes allegiance to the country of his birth or his adopted country; his stay here is
for personal convenience; he is attracted by the lure of gain and profit. His aim or purpose of
stay, we admit, is neither illegitimate nor immoral, but he is naturally lacking in that spirit of
loyalty and enthusiasm for this country where he temporarily stays and makes his living, or of
that spirit of regard, sympathy and consideration for his Filipino customers as would prevent him
from taking advantage of their weakness and exploiting them. The faster he makes his pile, the
earlier can the alien go back to his beloved country and his beloved kin and countrymen. The
experience of the country is that the alien retailer has shown such utter disregard for his
customers and the people on whom he makes his profit, that it has been found necessary to adopt
the legislation, radical as it may seem.

Another objection to the alien retailer in this country is that he never really makes a genuine
contribution to national income and wealth. He undoubtedly contributes to general distribution,
but the gains and profits he makes are not invested in industries that would help the country's
economy and increase national wealth. The alien's interest in this country being merely transient
and temporary, it would indeed be ill-advised to continue entrusting the very important function
of retail distribution to his hands.

The practices resorted to by aliens in the control of distribution, as already pointed out above,
their secret manipulations of stocks of commodities and prices, their utter disregard of the
welfare of their customers and of the ultimate happiness of the people of the nation of which they
are mere guests, which practices, manipulations and disregard do not attend the exercise of the
trade by the nationals, show the existence of real and actual, positive and fundamental
differences between an alien and a national which fully justify the legislative classification
adopted in the retail trade measure. These differences are certainly a valid reason for the State to
prefer the national over the alien in the retail trade. We would be doing violence to fact and
reality were we to hold that no reason or ground for a legitimate distinction can be found
between one and the other.

b. Difference in alien aims and purposes sufficient basis for distinction.

The above objectionable characteristics of the exercise of the retail trade by the aliens, which are
actual and real, furnish sufficient grounds for legislative classification of retail traders into
nationals and aliens. Some may disagree with the wisdom of the legislature's classification. To
this we answer, that this is the prerogative of the law-making power. Since the Court finds that
the classification is actual, real and reasonable, and all persons of one class are treated alike, and
as it cannot be said that the classification is patently unreasonable and unfounded, it is in duty
bound to declare that the legislature acted within its legitimate prerogative and it can not declare
that the act transcends the limit of equal protection established by the Constitution.

Broadly speaking, the power of the legislature to make distinctions and classifications among
persons is not curtailed or denied by the equal protection of the laws clause. The legislative
power admits of a wide scope of discretion, and a law can be violative of the constitutional
limitation only when the classification is without reasonable basis. In addition to the authorities
we have earlier cited, we can also refer to the case of Linsey vs. Natural Carbonic Fas Co.
(1911), 55 L. ed., 369, which clearly and succinctly defined the application of equal protection
clause to a law sought to be voided as contrary thereto:

. . . . "1. The equal protection clause of the Fourteenth Amendment does not take from the
state the power to classify in the adoption of police laws, but admits of the exercise of the
wide scope of discretion in that regard, and avoids what is done only when it is without
any reasonable basis, and therefore is purely arbitrary. 2. A classification having some
reasonable basis does not offend against that clause merely because it is not made with
mathematical nicety, or because in practice it results in some inequality. 3. When the
classification in such a law is called in question, if any state of facts reasonably can be
conceived that would sustain it, the existence of that state of facts at the time the law was
enacted must be assumed. 4. One who assails the classification in such a law must carry
the burden of showing that it does not rest upon any reasonable basis but is essentially
arbitrary."

c. Authorities recognizing citizenship as basis for classification.

The question as to whether or not citizenship is a legal and valid ground for classification has
already been affirmatively decided in this jurisdiction as well as in various courts in the United
States. In the case of Smith Bell & Co. vs. Natividad, 40 Phil. 136, where the validity of Act No.
2761 of the Philippine Legislature was in issue, because of a condition therein limiting the
ownership of vessels engaged in coastwise trade to corporations formed by citizens of the
Philippine Islands or the United States, thus denying the right to aliens, it was held that the
Philippine Legislature did not violate the equal protection clause of the Philippine Bill of Rights.
The legislature in enacting the law had as ultimate purpose the encouragement of Philippine
shipbuilding and the safety for these Islands from foreign interlopers. We held that this was a
valid exercise of the police power, and all presumptions are in favor of its constitutionality. In
substance, we held that the limitation of domestic ownership of vessels engaged in coastwise
trade to citizens of the Philippines does not violate the equal protection of the law and due
process or law clauses of the Philippine Bill of Rights. In rendering said decision we quoted with
approval the concurring opinion of Justice Johnson in the case of Gibbons vs. Ogden, 9 Wheat.,
I, as follows:

"Licensing acts, in fact, in legislation, are universally restraining acts; as, for example,
acts licensing gaming houses, retailers of spirituous liquors, etc. The act, in this instance,
is distinctly of that character, and forms part of an extensive system, the object of which
is to encourage American shipping, and place them on an equal footing with the shipping
of other nations. Almost every commercial nation reserves to its own subjects a
monopoly of its coasting trade; and a countervailing privilege in favor of American
shipping is contemplated, in the whole legislation of the United States on this subject. It
is not to give the vessel an American character, that the license is granted; that effect has
been correctly attributed to the act of her enrollment. But it is to confer on her American
privileges, as contra distinguished from foreign; and to preserve the Government from
fraud by foreigners; in surreptitiously intruding themselves into the American commercial
marine, as well as frauds upon the revenue in the trade coastwise, that this whole system
is projected."

The rule in general is as follows:

Aliens are under no special constitutional protection which forbids a classification


otherwise justified simply because the limitation of the class falls along the lines of
nationality. That would be requiring a higher degree of protection for aliens as a class
than for similar classes than for similar classes of American citizens. Broadly speaking,
the difference in status between citizens and aliens constitutes a basis for reasonable
classification in the exercise of police power. (2 Am., Jur. 468-469.)

In Commonwealth vs. Hana, 81 N. E. 149 (Massachusetts, 1907), a statute on the licensing of


hawkers and peddlers, which provided that no one can obtain a license unless he is, or has
declared his intention, to become a citizen of the United States, was held valid, for the following
reason: It may seem wise to the legislature to limit the business of those who are supposed to
have regard for the welfare, good order and happiness of the community, and the court cannot
question this judgment and conclusion. In Bloomfield vs. State, 99 N. E. 309 (Ohio, 1912), a
statute which prevented certain persons, among them aliens, from engaging in the traffic of
liquors, was found not to be the result of race hatred, or in hospitality, or a deliberate purpose to
discriminate, but was based on the belief that an alien cannot be sufficiently acquainted with "our
institutions and our life as to enable him to appreciate the relation of this particular business to
our entire social fabric", and was not, therefore, invalid. In Ohio ex rel. Clarke vs. Deckebach,
274 U. S. 392, 71 L. ed. 115 (1926), the U.S. Supreme Court had under consideration an
ordinance of the city of Cincinnati prohibiting the issuance of licenses (pools and billiard rooms)
to aliens. It held that plainly irrational discrimination against aliens is prohibited, but it does not
follow that alien race and allegiance may not bear in some instances such a relation to a
legitimate object of legislation as to be made the basis of permitted classification, and that it
could not state that the legislation is clearly wrong; and that latitude must be allowed for the
legislative appraisement of local conditions and for the legislative choice of methods for
controlling an apprehended evil. The case of State vs. Carrol, 124 N. E. 129 (Ohio, 1919) is a
parallel case to the one at bar. In Asakura vs. City of Seattle, 210 P. 30 (Washington, 1922), the
business of pawn brooking was considered as having tendencies injuring public interest, and
limiting it to citizens is within the scope of police power. A similar statute denying aliens the
right to engage in auctioneering was also sustained in Wright vs. May, L.R.A., 1915 P. 151
(Minnesota, 1914). So also in Anton vs. Van Winkle, 297 F. 340 (Oregon, 1924), the court said
that aliens are judicially known to have different interests, knowledge, attitude, psychology and
loyalty, hence the prohibitions of issuance of licenses to them for the business of pawnbroker,
pool, billiard, card room, dance hall, is not an infringement of constitutional rights. In Templar
vs. Michigan State Board of Examiners, 90 N.W. 1058 (Michigan, 1902), a law prohibiting the
licensing of aliens as barbers was held void, but the reason for the decision was the court's
findings that the exercise of the business by the aliens does not in any way affect the morals, the
health, or even the convenience of the community. In Takahashi vs. Fish and Game Commission,
92 L. ed. 1479 (1947), a California statute banning the issuance of commercial fishing licenses to
person ineligible to citizenship was held void, because the law conflicts with Federal power over
immigration, and because there is no public interest in the mere claim of ownership of the waters
and the fish in them, so there was no adequate justification for the discrimination. It further
added that the law was the outgrowth of antagonism toward the persons of Japanese ancestry.
However, two Justices dissented on the theory that fishing rights have been treated traditionally
as natural resources. In Fraser vs. McConway & Tarley Co., 82 Fed. 257 (Pennsylvania, 1897), a
state law which imposed a tax on every employer of foreign-born unnaturalized male persons
over 21 years of age, was declared void because the court found that there was no reason for the
classification and the tax was an arbitrary deduction from the daily wage of an employee.

d. Authorities contra explained.

It is true that some decisions of the Federal court and of the State courts in the United States hold
that the distinction between aliens and citizens is not a valid ground for classification. But in this
decision the laws declared invalid were found to be either arbitrary, unreasonable or capricious,
or were the result or product of racial antagonism and hostility, and there was no question of
public interest involved or pursued. In Yu Cong Eng vs. Trinidad, 70 L. ed. 1059 (1925), the
United States Supreme Court declared invalid a Philippine law making unlawful the keeping of
books of account in any language other than English, Spanish or any other local dialect, but the
main reasons for the decisions are: (1) that if Chinese were driven out of business there would be
no other system of distribution, and (2) that the Chinese would fall prey to all kinds of fraud,
because they would be deprived of their right to be advised of their business and to direct its
conduct. The real reason for the decision, therefore, is the court's belief that no public benefit
would be derived from the operations of the law and on the other hand it would deprive Chinese
of something indispensable for carrying on their business. In Yick Wo vs. Hopkins, 30 L. ed 220
(1885) an ordinance conferring powers on officials to withhold consent in the operation of
laundries both as to persons and place, was declared invalid, but the court said that the power
granted was arbitrary, that there was no reason for the discrimination which attended the
administration and implementation of the law, and that the motive thereof was mere racial
hostility. In State vs. Montgomery, 47 A. 165 (Maine, 1900), a law prohibiting aliens to engage as
hawkers and peddlers was declared void, because the discrimination bore no reasonable and just
relation to the act in respect to which the classification was proposed.

The case at bar is radically different, and the facts make them so. As we already have said, aliens
do not naturally possess the sympathetic consideration and regard for the customers with whom
they come in daily contact, nor the patriotic desire to help bolster the nation's economy, except in
so far as it enhances their profit, nor the loyalty and allegiance which the national owes to the
land. These limitations on the qualifications of the aliens have been shown on many occasions
and instances, especially in times of crisis and emergency. We can do no better than borrow the
language of Anton vs. Van Winkle, 297 F. 340, 342, to drive home the reality and significance of
the distinction between the alien and the national, thus:
. . . . It may be judicially known, however, that alien coming into this country are without
the intimate knowledge of our laws, customs, and usages that our own people have. So it
is likewise known that certain classes of aliens are of different psychology from our
fellow countrymen. Furthermore, it is natural and reasonable to suppose that the foreign
born, whose allegiance is first to their own country, and whose ideals of governmental
environment and control have been engendered and formed under entirely different
regimes and political systems, have not the same inspiration for the public weal, nor are
they as well disposed toward the United States, as those who by citizenship, are a part of
the government itself. Further enlargement, is unnecessary. I have said enough so that
obviously it cannot be affirmed with absolute confidence that the Legislature was without
plausible reason for making the classification, and therefore appropriate discriminations
against aliens as it relates to the subject of legislation. . . . .

VII. The Due Process of Law Limitation.

a. Reasonability, the test of the limitation; determination by legislature decisive.

We now come to due process as a limitation on the exercise of the police power. It has been
stated by the highest authority in the United States that:

. . . . And the guaranty of due process, as has often been held, demands only that the law
shall not be unreasonable, arbitrary or capricious, and that the means selected shall have a
real and substantial relation to the subject sought to be attained. . . . .

xxx xxx xxx

So far as the requirement of due process is concerned and in the absence of other
constitutional restriction a state is free to adopt whatever economic policy may
reasonably be deemed to promote public welfare, and to enforce that policy by legislation
adapted to its purpose. The courts are without authority either to declare such policy, or,
when it is declared by the legislature, to override it. If the laws passed are seen to have a
reasonable relation to a proper legislative purpose, and are neither arbitrary nor
discriminatory, the requirements of due process are satisfied, and judicial determination
to that effect renders a court functus officio. . . . (Nebbia vs. New York, 78 L. ed. 940,
950, 957.)

Another authority states the principle thus:

. . . . Too much significance cannot be given to the word "reasonable" in considering the
scope of the police power in a constitutional sense, for the test used to determine the
constitutionality of the means employed by the legislature is to inquire whether the
restriction it imposes on rights secured to individuals by the Bill of Rights are
unreasonable, and not whether it imposes any restrictions on such rights. . . .

xxx xxx xxx


. . . . A statute to be within this power must also be reasonable in its operation upon the
persons whom it affects, must not be for the annoyance of a particular class, and must not
be unduly oppressive. (11 Am. Jur. Sec. 302., 1:1)- 1074-1075.)

In the case of Lawton vs. Steele, 38 L. ed. 385, 388. it was also held:

. . . . To justify the state in thus interposing its authority in behalf of the public, it must
appear, first, that the interests of the public generally, as distinguished from those of a
particular class, require such interference; and second, that the means are reasonably
necessary for the accomplishment of the purpose, and not unduly oppressive upon
individuals. . . .

Prata Undertaking Co. vs. State Board of Embalming, 104 ALR, 389, 395, fixes this test of
constitutionality:

In determining whether a given act of the Legislature, passed in the exercise of the police
power to regulate the operation of a business, is or is not constitutional, one of the first
questions to be considered by the court is whether the power as exercised has a sufficient
foundation in reason in connection with the matter involved, or is an arbitrary,
oppressive, and capricious use of that power, without substantial relation to the health,
safety, morals, comfort, and general welfare of the public.

b. Petitioner's argument considered.

Petitioner's main argument is that retail is a common, ordinary occupation, one of those
privileges long ago recognized as essential to the orderly pursuant of happiness by free men; that
it is a gainful and honest occupation and therefore beyond the power of the legislature to prohibit
and penalized. This arguments overlooks fact and reality and rests on an incorrect assumption
and premise, i.e., that in this country where the occupation is engaged in by petitioner, it has
been so engaged by him, by the alien in an honest creditable and unimpeachable manner, without
harm or injury to the citizens and without ultimate danger to their economic peace, tranquility
and welfare. But the Legislature has found, as we have also found and indicated, that the
privilege has been so grossly abused by the alien, thru the illegitimate use of pernicious designs
and practices, that he now enjoys a monopolistic control of the occupation and threatens a deadly
stranglehold on the nation's economy endangering the national security in times of crisis and
emergency.

The real question at issue, therefore, is not that posed by petitioner, which overlooks and ignores
the facts and circumstances, but this, Is the exclusion in the future of aliens from the retail trade
unreasonable. Arbitrary capricious, taking into account the illegitimate and pernicious form and
manner in which the aliens have heretofore engaged therein? As thus correctly stated the answer
is clear. The law in question is deemed absolutely necessary to bring about the desired legislative
objective, i.e., to free national economy from alien control and dominance. It is not necessarily
unreasonable because it affects private rights and privileges (11 Am. Jur. pp. 1080-1081.) The
test of reasonableness of a law is the appropriateness or adequacy under all circumstances of the
means adopted to carry out its purpose into effect (Id.) Judged by this test, disputed legislation,
which is not merely reasonable but actually necessary, must be considered not to have infringed
the constitutional limitation of reasonableness.

The necessity of the law in question is explained in the explanatory note that accompanied the
bill, which later was enacted into law:

This bill proposes to regulate the retail business. Its purpose is to prevent persons who are
not citizens of the Philippines from having a strangle hold upon our economic life. If the
persons who control this vital artery of our economic life are the ones who owe no
allegiance to this Republic, who have no profound devotion to our free institutions, and
who have no permanent stake in our people's welfare, we are not really the masters of our
destiny. All aspects of our life, even our national security, will be at the mercy of other
people.

In seeking to accomplish the foregoing purpose, we do not propose to deprive persons


who are not citizens of the Philippines of their means of livelihood. While this bill seeks
to take away from the hands of persons who are not citizens of the Philippines a power
that can be wielded to paralyze all aspects of our national life and endanger our national
security it respects existing rights.

The approval of this bill is necessary for our national survival.

If political independence is a legitimate aspiration of a people, then economic independence is


none the less legitimate. Freedom and liberty are not real and positive if the people are subject to
the economic control and domination of others, especially if not of their own race or country.
The removal and eradication of the shackles of foreign economic control and domination, is one
of the noblest motives that a national legislature may pursue. It is impossible to conceive that
legislation that seeks to bring it about can infringe the constitutional limitation of due process.
The attainment of a legitimate aspiration of a people can never be beyond the limits of legislative
authority.

c. Law expressly held by Constitutional Convention to be within the sphere of legislative action.

The framers of the Constitution could not have intended to impose the constitutional restrictions
of due process on the attainment of such a noble motive as freedom from economic control and
domination, thru the exercise of the police power. The fathers of the Constitution must have
given to the legislature full authority and power to enact legislation that would promote the
supreme happiness of the people, their freedom and liberty. On the precise issue now before us,
they expressly made their voice clear; they adopted a resolution expressing their belief that the
legislation in question is within the scope of the legislative power. Thus they declared the their
Resolution:

That it is the sense of the Convention that the public interest requires the nationalization
of retail trade; but it abstain from approving the amendment introduced by the Delegate
for Manila, Mr. Araneta, and others on this matter because it is convinced that the
National Assembly is authorized to promulgate a law which limits to Filipino and
American citizens the privilege to engage in the retail trade. (11 Aruego, The Framing of
the Philippine Constitution, quoted on pages 66 and 67 of the Memorandum for the
Petitioner.)

It would do well to refer to the nationalistic tendency manifested in various provisions of the
Constitution. Thus in the preamble, a principle objective is the conservation of the patrimony of
the nation and as corollary the provision limiting to citizens of the Philippines the exploitation,
development and utilization of its natural resources. And in Section 8 of Article XIV, it is
provided that "no franchise, certificate, or any other form of authorization for the operation of the
public utility shall be granted except to citizens of the Philippines." The nationalization of the
retail trade is only a continuance of the nationalistic protective policy laid down as a primary
objective of the Constitution. Can it be said that a law imbued with the same purpose and spirit
underlying many of the provisions of the Constitution is unreasonable, invalid and
unconstitutional?

The seriousness of the Legislature's concern for the plight of the nationals as manifested in the
approval of the radical measures is, therefore, fully justified. It would have been recreant to its
duties towards the country and its people would it view the sorry plight of the nationals with the
complacency and refuse or neglect to adopt a remedy commensurate with the demands of public
interest and national survival. As the repository of the sovereign power of legislation, the
Legislature was in duty bound to face the problem and meet, through adequate measures, the
danger and threat that alien domination of retail trade poses to national economy.

d. Provisions of law not unreasonable.

A cursory study of the provisions of the law immediately reveals how tolerant, how reasonable
the Legislature has been. The law is made prospective and recognizes the right and privilege of
those already engaged in the occupation to continue therein during the rest of their lives; and
similar recognition of the right to continue is accorded associations of aliens. The right or
privilege is denied to those only upon conviction of certain offenses. In the deliberations of the
Court on this case, attention was called to the fact that the privilege should not have been denied
to children and heirs of aliens now engaged in the retail trade. Such provision would defeat the
law itself, its aims and purposes. Beside, the exercise of legislative discretion is not subject to
judicial review. It is well settled that the Court will not inquire into the motives of the
Legislature, nor pass upon general matters of legislative judgment. The Legislature is primarily
the judge of the necessity of an enactment or of any of its provisions, and every presumption is in
favor of its validity, and though the Court may hold views inconsistent with the wisdom of the
law, it may not annul the legislation if not palpably in excess of the legislative power.
Furthermore, the test of the validity of a law attacked as a violation of due process, is not its
reasonableness, but its unreasonableness, and we find the provisions are not unreasonable. These
principles also answer various other arguments raised against the law, some of which are: that the
law does not promote general welfare; that thousands of aliens would be thrown out of
employment; that prices will increase because of the elimination of competition; that there is no
need for the legislation; that adequate replacement is problematical; that there may be general
breakdown; that there would be repercussions from foreigners; etc. Many of these arguments are
directed against the supposed wisdom of the law which lies solely within the legislative
prerogative; they do not import invalidity.

VIII. Alleged defect in the title of the law

A subordinate ground or reason for the alleged invalidity of the law is the claim that the title
thereof is misleading or deceptive, as it conceals the real purpose of the bill which is to
nationalize the retail business and prohibit aliens from engaging therein. The constitutional
provision which is claimed to be violated in Section 21 (1) of Article VI, which reads:

No bill which may be enacted in the law shall embrace more than one subject which shall
be expressed in the title of the bill.

What the above provision prohibits is duplicity, that is, if its title completely fails to appraise the
legislators or the public of the nature, scope and consequences of the law or its operation (I
Sutherland, Statutory Construction, Sec. 1707, p. 297.) A cursory consideration of the title and
the provisions of the bill fails to show the presence of duplicity. It is true that the term "regulate"
does not and may not readily and at first glance convey the idea of "nationalization" and
"prohibition", which terms express the two main purposes and objectives of the law. But
"regulate" is a broader term than either prohibition or nationalization. Both of these have always
been included within the term regulation.

Under the title of an act to "regulate", the sale of intoxicating liquors, the Legislature may
prohibit the sale of intoxicating liquors. (Sweet vs. City of Wabash, 41 Ind., 7; quoted in
page 41 of Answer.)

Within the meaning of the Constitution requiring that the subject of every act of the
Legislature shall be stated in the tale, the title to regulate the sale of intoxicating liquors,
etc." sufficiently expresses the subject of an act prohibiting the sale of such liquors to
minors and to persons in the habit of getting intoxicated; such matters being properly
included within the subject of regulating the sale. (Williams vs. State, 48 Ind. 306, 308,
quoted in p. 42 of Answer.)

The word "regulate" is of broad import, and necessarily implies some degree of restraint
and prohibition of acts usually done in connection with the thing to be regulated. While
word regulate does not ordinarily convey meaning of prohibit, there is no absolute reason
why it should not have such meaning when used in delegating police power in connection
with a thing the best or only efficacious regulation of which involves suppression. (State
vs. Morton, 162 So. 718, 182 La. 887, quoted in p. 42 of Answer.)

The general rule is for the use of general terms in the title of a bill; it has also been said that the
title need not be an index to the entire contents of the law (I Sutherland, Statutory Construction,
See. 4803, p. 345.) The above rule was followed the title of the Act in question adopted the more
general term "regulate" instead of "nationalize" or "prohibit". Furthermore, the law also contains
other rules for the regulation of the retail trade which may not be included in the terms
"nationalization" or "prohibition"; so were the title changed from "regulate" to "nationalize" or
"prohibit", there would have been many provisions not falling within the scope of the title which
would have made the Act invalid. The use of the term "regulate", therefore, is in accord with the
principle governing the drafting of statutes, under which a simple or general term should be
adopted in the title, which would include all other provisions found in the body of the Act.

One purpose of the constitutional directive that the subject of a bill should be embraced in its
title is to apprise the legislators of the purposes, the nature and scope of its provisions, and
prevent the enactment into law of matters which have received the notice, action and study of the
legislators or of the public. In the case at bar it cannot be claimed that the legislators have been
appraised of the nature of the law, especially the nationalization and the prohibition provisions.
The legislators took active interest in the discussion of the law, and a great many of the persons
affected by the prohibitions in the law conducted a campaign against its approval. It cannot be
claimed, therefore, that the reasons for declaring the law invalid ever existed. The objection must
therefore, be overruled.

IX. Alleged violation of international treaties and obligations

Another subordinate argument against the validity of the law is the supposed violation thereby of
the Charter of the United Nations and of the Declaration of the Human Rights adopted by the
United Nations General Assembly. We find no merit in the Nations Charter imposes no strict or
legal obligations regarding the rights and freedom of their subjects (Hans Kelsen, The Law of the
United Nations, 1951 ed. pp. 29-32), and the Declaration of Human Rights contains nothing
more than a mere recommendation or a common standard of achievement for all peoples and all
nations (Id. p. 39.) That such is the import of the United Nations Charter aid of the Declaration of
Human Rights can be inferred the fact that members of the United Nations Organizations, such
as Norway and Denmark, prohibit foreigners from engaging in retail trade, and in most nations
of the world laws against foreigners engaged in domestic trade are adopted.

The Treaty of Amity between the Republic of the Philippines and the Republic of China of April
18, 1947 is also claimed to be violated by the law in question. All that the treaty guarantees is
equality of treatment to the Chinese nationals "upon the same terms as the nationals of any other
country." But the nationals of China are not discriminating against because nationals of all other
countries, except those of the United States, who are granted special rights by the Constitution,
are all prohibited from engaging in the retail trade. But even supposing that the law infringes
upon the said treaty, the treaty is always subject to qualification or amendment by a subsequent
law (U. S. vs. Thompson, 258, Fed. 257, 260), and the same may never curtail or restrict the
scope of the police power of the State (plaston vs. Pennsylvania, 58 L. ed. 539.)

X. Conclusion

Resuming what we have set forth above we hold that the disputed law was enacted to remedy a
real actual threat and danger to national economy posed by alien dominance and control of the
retail business and free citizens and country from dominance and control; that the enactment
clearly falls within the scope of the police power of the State, thru which and by which it protects
its own personality and insures its security and future; that the law does not violate the equal
protection clause of the Constitution because sufficient grounds exist for the distinction between
alien and citizen in the exercise of the occupation regulated, nor the due process of law clause,
because the law is prospective in operation and recognizes the privilege of aliens already
engaged in the occupation and reasonably protects their privilege; that the wisdom and efficacy
of the law to carry out its objectives appear to us to be plainly evident as a matter of fact it
seems not only appropriate but actually necessary and that in any case such matter falls within
the prerogative of the Legislature, with whose power and discretion the Judicial department of
the Government may not interfere; that the provisions of the law are clearly embraced in the title,
and this suffers from no duplicity and has not misled the legislators or the segment of the
population affected; and that it cannot be said to be void for supposed conflict with treaty
obligations because no treaty has actually been entered into on the subject and the police power
may not be curtailed or surrendered by any treaty or any other conventional agreement.

Some members of the Court are of the opinion that the radical effects of the law could have been
made less harsh in its impact on the aliens. Thus it is stated that the more time should have been
given in the law for the liquidation of existing businesses when the time comes for them to close.
Our legal duty, however, is merely to determine if the law falls within the scope of legislative
authority and does not transcend the limitations of due process and equal protection guaranteed
in the Constitution. Remedies against the harshness of the law should be addressed to the
Legislature; they are beyond our power and jurisdiction.

The petition is hereby denied, with costs against petitioner.

Paras, C.J., Bengzon, Reyes, A., Bautista Angelo, Concepcion, Reyes, J.B.L., Endencia and
Felix, JJ., concur.

Separate Opinions

PADILLA, J., concurring and dissenting:

I agree to the proposition, principle or rule that courts may not inquire into the wisdom of an the
Act passed by the Congress and duly approved by the President of the Republic. But the rule
does not preclude courts from inquiring and determining whether the Act offends against a
provision or provisions of the Constitution. I am satisfied that the Act assailed as violative of the
due process of law and the equal protection of the laws clauses of the Constitution does not
infringe upon them, insofar as it affects associations, partnership or corporations, the capital of
which is not wholly owned by the citizens of the Philippines, and aliens, who are not and have
not been engaged in the retail business. I am, however, unable to persuade myself that it does not
violate said clauses insofar as the Act applies to associations and partnerships referred to in the
Act and to aliens, who are and have heretofore been engaged in said business. When they did
engage in the retail business there was no prohibition on or against them to engage in it. They
assumed and believed in good faith they were entitled to engaged in the business. The Act allows
aliens to continue in business until their death or voluntary retirement from the business or
forfeiture of their license; and corporations, associations or partnership, the capital of which is
not wholly owned by the citizens of the Philippines to continue in the business for a period of ten
years from the date of the approval of the Act (19 June 1954) or until the expiry of term of the
existence of the association or partnership or corporation, whichever event comes first. The
prohibition on corporations, the capital of which is not wholly owned by citizens of the
Philippines, to engage in the retail business for a period of more than ten years from the date of
the approval of the Act or beyond the term of their corporate existence, whichever event comes
first, is valid and lawful, because the continuance of the existence of such corporations is subject
to whatever the Congress may impose reasonably upon them by subsequent legislation.1 But the
prohibition to engage in the retail business by associations and partnerships, the capital of which
is not wholly owned by citizen of the Philippines, after ten years from the date of the approval of
the Act, even before the end of the term of their existence as agreed upon by the associates and
partners, and by alien heirs to whom the retail business is transmitted by the death of an alien
engaged in the business, or by his executor or administrator, amounts to a deprivation of their
property without due process of law. To my mind, the ten-year period from the date of the
approval of the Act or until the expiration of the term of the existence of the association and
partnership, whichever event comes first, and the six-month period granted to alien heirs of a
deceased alien, his executor or administrator, to liquidate the business, do not cure the defect of
the law, because the effect of the prohibition is to compel them to sell or dispose of their
business. The price obtainable at such forced sale of the business would be inadequate to
reimburse and compensate the associates or partners of the associations or partnership, and the
alien heirs of a deceased alien, engaged in the retail business for the capital invested in it. The
stock of merchandise bought and sold at retail does not alone constitute the business. The
goodwill that the association, partnership and the alien had built up during a long period of
effort, patience and perseverance forms part of such business. The constitutional provisions that
no person shall be deprived of his property without due process of law2 and that no person shall
be denied the equal protection of the laws3 would have no meaning as applied to associations or
partnership and alien heirs of an alien engaged in the retail business if they were to be compelled
to sell or dispose of their business within ten years from the date of the approval of the Act and
before the end of the term of the existence of the associations and partnership as agreed upon by
the associations and partners and within six months after the death of their predecessor-in-
interest.

The authors of the Constitution were vigilant, careful and zealous in the safeguard of the
ownership of private agricultural lands which together with the lands of the public domain
constitute the priceless patrimony and mainstay of the nation; yet, they did not deem it wise and
prudent to deprive aliens and their heirs of such lands.4

For these reasons, I am of the opinion that section 1 of the Act, insofar as it compels associations
and partnership referred to therein to wind up their retail business within ten years from the date
of the approval of the Act even before the expiry of the term of their existence as agreed upon by
the associates and partners and section 3 of the Act, insofar as it compels the aliens engaged in
the retail business in his lifetime his executor or administrator, to liquidate the business, are
invalid, for they violate the due process of law and the equal protection of the laws clauses of the
Constitution.

G.R. No. 89651 November 10, 1989


DATU FIRDAUSI I.Y. ABBAS, DATU BLO UMPAR ADIONG, DATU MACALIMPOWAC
DELANGALEN, CELSO PALMA, ALI MONTANA BABAO, JULMUNIR JANNARAL,
RASHID SABER, and DATU JAMAL ASHLEY ABBAS, representing the other
taxpayers of Mindanao, petitioners,
vs.
COMMISSION ON ELECTIONS, and HONORABLE GUILLERMO C. CARAGUE,
DEPARTMENT SECRETARY OF BUDGET AND MANAGEMENT, respondents.

G.R. No. 89965 November 10, 1989

ATTY. ABDULLAH D. MAMA-O, petitioner,


vs.
HON. GUILLERMO CARAGUE, in his capacity as the Secretary of the Budget, and
the COMMISSION ON ELECTIONS, respondents.

Abbas, Abbas, Amora, Alejandro-Abbas & Associates for petitioners in G.R. Nos. 89651
and 89965.

Abdullah D. Mama-o for and in his own behalf in 89965.

CORTES, J.:

The present controversy relates to the plebiscite in thirteen (13) provinces and nine (9)
cities in Mindanao and Palawan, 1 scheduled for November 19, 1989, in implementation of
Republic Act No. 6734, entitled "An Act Providing for an Organic Act for the Autonomous Region in
Muslim Mindanao."

These consolidated petitions pray that the Court: (1) enjoin the Commission on Elections (COMELEC)
from conducting the plebiscite and the Secretary of Budget and Management from releasing funds to the
COMELEC for that purpose; and (2) declare R.A. No. 6734, or parts thereof, unconstitutional .

After a consolidated comment was filed by Solicitor General for the respondents, which the Court
considered as the answer, the case was deemed submitted for decision, the issues having been joined.
Subsequently, petitioner Mama-o filed a "Manifestation with Motion for Leave to File Reply on
Respondents' Comment and to Open Oral Arguments," which the Court noted.

The arguments against R.A. 6734 raised by petitioners may generally be categorized into either of the
following:

(a) that R.A. 6734, or parts thereof, violates the Constitution, and

(b) that certain provisions of R.A. No. 6734 conflict with the Tripoli Agreement.
The Tripoli Agreement, more specifically, the Agreement Between the government of the Republic of the
Philippines of the Philippines and Moro National Liberation Front with the Participation of the Quadripartie
Ministerial Commission Members of the Islamic Conference and the Secretary General of the
Organization of Islamic Conference" took effect on December 23, 1976. It provided for "[t]he
establishment of Autonomy in the southern Philippines within the realm of the sovereignty and territorial
integrity of the Republic of the Philippines" and enumerated the thirteen (13) provinces comprising the
"areas of autonomy." 2

In 1987, a new Constitution was ratified, which the for the first time provided for regional autonomy, Article
X, section 15 of the charter provides that "[t]here 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."

To effectuate this mandate, the Constitution further provides:

Sec. 16. The President shall exercise general supervision over autonomous regions to
ensure that the laws are faithfully executed.

Sec. 17. All powers, functions, and responsibilities not granted by this Constitution or by
law to the autonomous regions shall be vested in the National Government.

Sec. 18. The Congress shall enact an organic act for each autonomous region with the
assistance and participation of the regional consultative commission composed of
representatives appointed by the President from a list of nominees from multisectoral
bodies. The organic act shall define the basic structure of government for the region
consisting of the executive and representative of the constituent political units. The
organic acts shall likewise provide for special courts with personal, family, and property
law jurisdiction consistent with the provisions of this Constitution and national laws.

The creation of the autonomous region shall be effective when approved by majority of
the votes cast by the constituent units in a plebiscite called for the purpose, provided that
only the provinces, cities, and geographic areas voting favorably in such plebiscite shall
be included in the autonomous region.

Sec. 19 The first Congress elected under this Constitution shall, within eighteen months
from the time of organization of both Houses, pass the organic acts for the autonomous
regions in Muslim Mindanao and the Cordilleras.

Sec. 20. Within its territorial jurisdiction and subject to the provisions of this Constitution
and national laws, the organic act of autonomous regions shall provide for legislative
powers over:

(1) Administrative organization;

(2) Creation of sources of revenues;


(3) Ancestral domain and natural resources;

(4) Personal, family, and property relations;

(5) Regional urban and rural planning development;

(6) Economic, social and tourism development;

(7) Educational policies;

(8) Preservation and development of the cultural heritage; and

(9) Such other matters as may be authorized by law for the promotion of
the general welfare of the people of the region.

Sec. 21. The preservation of peace and order within the regions shall be the responsibility
of the local police agencies which shall be organized, maintained, supervised, and
utilized in accordance with applicable laws. The defense and security of the region shall
be the responsibility of the National Government.

Pursuant to the constitutional mandate, R.A. No. 6734 was enacted and signed into law on August 1,
1989.

1. The Court shall dispose first of the second category of arguments raised by petitioners, i.e. that certain
provisions of R.A. No. 6734 conflict with the provisions of the Tripoli Agreement.

Petitioners premise their arguments on the assumption that the Tripoli Agreement is part of the law of the
land, being a binding international agreement . The Solicitor General asserts that the Tripoli Agreement is
neither a binding treaty, not having been entered into by the Republic of the Philippines with a sovereign
state and ratified according to the provisions of the 1973 or 1987 Constitutions, nor a binding international
agreement.

We find it neither necessary nor determinative of the case to rule on the nature of the Tripoli Agreement
and its binding effect on the Philippine Government whether under public international or internal
Philippine law. In the first place, it is now the Constitution itself that provides for the creation of an
autonomous region in Muslim Mindanao. The standard for any inquiry into the validity of R.A. No. 6734
would therefore be what is so provided in the Constitution. Thus, any conflict between the provisions of
R.A. No. 6734 and the provisions of the Tripoli Agreement will not have the effect of enjoining the
implementation of the Organic Act. Assuming for the sake of argument that the Tripoli Agreement is a
binding treaty or international agreement, it would then constitute part of the law of the land. But as
internal law it would not be superior to R.A. No. 6734, an enactment of the Congress of the Philippines,
rather it would be in the same class as the latter [SALONGA, PUBLIC INTERNATIONAL LAW 320 (4th
ed., 1974), citing Head Money Cases, 112 U.S. 580 (1884) and Foster v. Nelson, 2 Pet. 253 (1829)].
Thus, if at all, R.A. No. 6734 would be amendatory of the Tripoli Agreement, being a subsequent law. Only
a determination by this Court that R.A. No. 6734 contravened the Constitution would result in the granting
of the reliefs sought. 3
2. The Court shall therefore only pass upon the constitutional questions which have been raised by
petitioners.

Petitioner Abbas argues that R.A. No. 6734 unconditionally creates an autonomous region in Mindanao,
contrary to the aforequoted provisions of the Constitution on the autonomous region which make the
creation of such region dependent upon the outcome of the plebiscite.

In support of his argument, petitioner cites Article II, section 1(1) of R.A. No. 6734 which declares that
"[t]here is hereby created the Autonomous Region in Muslim Mindanao, to be composed of provinces and
cities voting favorably in the plebiscite called for the purpose, in accordance with Section 18, Article X of
the Constitution." Petitioner contends that the tenor of the above provision makes the creation of an
autonomous region absolute, such that even if only two provinces vote in favor of autonomy, an
autonomous region would still be created composed of the two provinces where the favorable votes were
obtained.

The matter of the creation of the autonomous region and its composition needs to be clarified.

Firs, the questioned provision itself in R.A. No. 6734 refers to Section 18, Article X of the Constitution
which sets forth the conditions necessary for the creation of the autonomous region. The reference to the
constitutional provision cannot be glossed over for it clearly indicates that the creation of the autonomous
region shall take place only in accord with the constitutional requirements. Second, there is a specific
provision in the Transitory Provisions (Article XIX) of the Organic Act, which incorporates substantially the
same requirements embodied in the Constitution and fills in the details, thus:

SEC. 13. The creation of the Autonomous Region in Muslim Mindanao shall take effect
when approved by a majority of the votes cast by the constituent units provided in
paragraph (2) of Sec. 1 of Article II of this Act in a plebiscite which shall be held not
earlier than ninety (90) days or later than one hundred twenty (120) days after the
approval of this Act: Provided, That only the provinces and cities voting favorably in such
plebiscite shall be included in the Autonomous Region in Muslim Mindanao. The
provinces and cities which in the plebiscite do not vote for inclusion in the Autonomous
Region shall remain the existing administrative determination, merge the existing regions.

Thus, under the Constitution and R.A. No 6734, the creation of the autonomous region shall take effect
only when approved by a majority of the votes cast by the constituent units in a plebiscite, and only those
provinces and cities where a majority vote in favor of the Organic Act shall be included in the autonomous
region. The provinces and cities wherein such a majority is not attained shall not be included in the
autonomous region. It may be that even if an autonomous region is created, not all of the thirteen (13)
provinces and nine (9) cities mentioned in Article II, section 1 (2) of R.A. No. 6734 shall be included
therein. The single plebiscite contemplated by the Constitution and R.A. No. 6734 will therefore be
determinative of (1) whether there shall be an autonomous region in Muslim Mindanao and (2) which
provinces and cities, among those enumerated in R.A. No. 6734, shall compromise it. [See III RECORD
OF THE CONSTITUTIONAL COMMISSION 482-492 (1986)].

As provided in the Constitution, the creation of the Autonomous region in Muslim Mindanao is made
effective upon the approval "by majority of the votes cast by the constituent units in a plebiscite called for
the purpose" [Art. X, sec. 18]. The question has been raised as to what this majority means. Does it refer
to a majority of the total votes cast in the plebiscite in all the constituent units, or a majority in each of the
constituent units, or both?

We need not go beyond the Constitution to resolve this question.

If the framers of the Constitution intended to require approval by a majority of all the votes cast in the
plebiscite they would have so indicated. Thus, in Article XVIII, section 27, it is provided that "[t]his
Constitution shall take effect immediately upon its ratification by a majority of the votes cast in a plebiscite
held for the purpose ... Comparing this with the provision on the creation of the autonomous region, which
reads:

The creation of the autonomous region shall be effective when approved by majority of
the votes cast by the constituent units in a plebiscite called for the purpose, provided that
only provinces, cities and geographic areas voting favorably in such plebiscite shall be
included in the autonomous region. [Art. X, sec, 18, para, 2].

it will readily be seen that the creation of the autonomous region is made to depend, not on the total
majority vote in the plebiscite, but on the will of the majority in each of the constituent units and the
proviso underscores this. for if the intention of the framers of the Constitution was to get the majority of
the totality of the votes cast, they could have simply adopted the same phraseology as that used for the
ratification of the Constitution, i.e. "the creation of the autonomous region shall be effective when
approved by a majority of the votes cast in a plebiscite called for the purpose."

It is thus clear that what is required by the Constitution is a simple majority of votes approving the organic
Act in individual constituent units and not a double majority of the votes in all constituent units put
together, as well as in the individual constituent units.

More importantly, because of its categorical language, this is also the sense in which the vote requirement
in the plebiscite provided under Article X, section 18 must have been understood by the people when they
ratified the Constitution.

Invoking the earlier cited constitutional provisions, petitioner Mama-o, on the other hand, maintains that
only those areas which, to his view, share common and distinctive historical and cultural heritage,
economic and social structures, and other relevant characteristics should be properly included within the
coverage of the autonomous region. He insists that R.A. No. 6734 is unconstitutional because only the
provinces of Basilan, Sulu, Tawi-Tawi, Lanao del Sur, Lanao del Norte and Maguindanao and the cities of
Marawi and Cotabato, and not all of the thirteen (13) provinces and nine (9) cities included in the Organic
Act, possess such concurrence in historical and cultural heritage and other relevant characteristics. By
including areas which do not strictly share the same characteristics. By including areas which do not
strictly share the same characteristic as the others, petitioner claims that Congress has expanded the
scope of the autonomous region which the constitution itself has prescribed to be limited.

Petitioner's argument is not tenable. The Constitution lays down the standards by which Congress shall
determine which areas should constitute the autonomous region. Guided by these constitutional criteria,
the ascertainment by Congress of the areas that share common attributes is within the exclusive realm of
the legislature's discretion. Any review of this ascertainment would have to go into the wisdom of the law.
This the Court cannot do without doing violence to the separation of governmental powers. [Angara v.
Electoral Commission, 63 Phil 139 (1936); Morfe v. Mutuc, G.R. No. L-20387, January 31, 1968, 22
SCRA 424].

After assailing the inclusion of non-Muslim areas in the Organic Act for lack of basis, petitioner Mama-o
would then adopt the extreme view that other non-Muslim areas in Mindanao should likewise be covered.
He argues that since the Organic Act covers several non-Muslim areas, its scope should be further
broadened to include the rest of the non-Muslim areas in Mindanao in order for the other non-Muslim
areas denies said areas equal protection of the law, and therefore is violative of the Constitution.

Petitioner's contention runs counter to the very same constitutional provision he had earlier invoked. Any
determination by Congress of what areas in Mindanao should compromise the autonomous region, taking
into account shared historical and cultural heritage, economic and social structures, and other relevant
characteristics, would necessarily carry with it the exclusion of other areas. As earlier stated, such
determination by Congress of which areas should be covered by the organic act for the autonomous
region constitutes a recognized legislative prerogative, whose wisdom may not be inquired into by this
Court.

Moreover, equal protection permits of reasonable classification [People v. Vera, 65 Phil. 56 (1963); Laurel
v. Misa, 76 Phil. 372 (1946); J.M. Tuason and Co. v. Land tenure Administration, G.R. No. L-21064,
February 18, 1970, 31 SCRA 413]. In Dumlao v. Commission on Elections G.R. No. 52245, January 22,
1980, 95 SCRA 392], the Court ruled that once class may be treated differently from another where the
groupings are based on reasonable and real distinctions. The guarantee of equal protection is thus not
infringed in this case, the classification having been made by Congress on the basis of substantial
distinctions as set forth by the Constitution itself.

Both petitions also question the validity of R.A. No. 6734 on the ground that it violates the constitutional
guarantee on free exercise of religion [Art. III, sec. 5]. The objection centers on a provision in the Organic
Act which mandates that should there be any conflict between the Muslim Code [P.D. No. 1083] and the
Tribal Code (still be enacted) on the one had, and the national law on the other hand, the Shari'ah courts
created under the same Act should apply national law. Petitioners maintain that the islamic law (Shari'ah)
is derived from the Koran, which makes it part of divine law. Thus it may not be subjected to any "man-
made" national law. Petitioner Abbas supports this objection by enumerating possible instances of conflict
between provisions of the Muslim Code and national law, wherein an application of national law might be
offensive to a Muslim's religious convictions.

As enshrined in the Constitution, judicial power includes the duty to settle actual controversies involving
rights which are legally demandable and enforceable. [Art. VIII, Sec. 11. As a condition precedent for the
power to be exercised, an actual controversy between litigants must first exist [Angara v. Electoral
Commission, supra; Tan v. Macapagal, G.R. No. L-34161, February 29, 1972, 43 SCRA 677]. In the
present case, no actual controversy between real litigants exists. There are no conflicting claims involving
the application of national law resulting in an alleged violation of religious freedom. This being so, the
Court in this case may not be called upon to resolve what is merely a perceived potential conflict between
the provisions the Muslim Code and national law.

Petitioners also impugn the constitutionality of Article XIX, section 13 of R.A. No. 6734 which, among
others, states:
. . . Provided, That only the provinces and cities voting favorably in such plebiscite shall
be included in the Autonomous Region in Muslim Mindanao. The provinces and cities
which in the plebiscite do not vote for inclusion in the Autonomous Region shall remain in
the existing administrative regions: Provided, however, that the President may, by
administrative determination, merge the existing regions.

According to petitioners, said provision grants the President the power to merge regions, a power which is
not conferred by the Constitution upon the President. That the President may choose to merge existing
regions pursuant to the Organic Act is challenged as being in conflict with Article X, Section 10 of the
Constitution which provides:

No province, city, municipality, or barangay may be created, divided, merged, abolished,


or its boundary substantially altered, except in accordance with the criteria established in
the local government code and subject to approval by a majority of the votes cast in a
plebiscite in the political units directly affected.

It must be pointed out that what is referred to in R.A. No. 6734 is the merger of administrative regions, i.e.
Regions I to XII and the National Capital Region, which are mere groupings of contiguous provinces for
administrative purposes [Integrated Reorganization Plan (1972), which was made as part of the law of the
land by Pres. dec. No. 1, Pres. Dec. No. 742]. Administrative regions are not territorial and political
subdivisions like provinces, cities, municipalities and barangays [see Art. X, sec. 1 of the Constitution].
While the power to merge administrative regions is not expressly provided for in the Constitution, it is a
power which has traditionally been lodged with the President to facilitate the exercise of the power of
general supervision over local governments [see Art. X, sec. 4 of the Constitution]. There is no conflict
between the power of the President to merge administrative regions with the constitutional provision
requiring a plebiscite in the merger of local government units because the requirement of a plebiscite in a
merger expressly applies only to provinces, cities, municipalities or barangays, not to administrative
regions.

Petitioners likewise question the validity of provisions in the Organic Act which create an Oversight
Committee to supervise the transfer to the autonomous region of the powers, appropriations, and
properties vested upon the regional government by the organic Act [Art. XIX, Secs. 3 and 4]. Said
provisions mandate that the transfer of certain national government offices and their properties to the
regional government shall be made pursuant to a schedule prescribed by the Oversight Committee, and
that such transfer should be accomplished within six (6) years from the organization of the regional
government.

It is asserted by petitioners that such provisions are unconstitutional because while the Constitution states
that the creation of the autonomous region shall take effect upon approval in a plebiscite, the requirement
of organizing an Oversight committee tasked with supervising the transfer of powers and properties to the
regional government would in effect delay the creation of the autonomous region.

Under the Constitution, the creation of the autonomous region hinges only on the result of the plebiscite. if
the Organic Act is approved by majority of the votes cast by constituent units in the scheduled plebiscite,
the creation of the autonomous region immediately takes effect delay the creation of the autonomous
region.
Under the constitution, the creation of the autonomous region hinges only on the result of the plebiscite. if
the Organic Act is approved by majority of the votes cast by constituent units in the scheduled plebiscite,
the creation of the autonomous region immediately takes effect. The questioned provisions in R.A. No.
6734 requiring an oversight Committee to supervise the transfer do not provide for a different date of
effectivity. Much less would the organization of the Oversight Committee cause an impediment to the
operation of the Organic Act, for such is evidently aimed at effecting a smooth transition period for the
regional government. The constitutional objection on this point thus cannot be sustained as there is no
bases therefor.

Every law has in its favor the presumption of constitutionality [Yu Cong Eng v. Trinidad, 47 Phil. 387
(1925); Salas v. Jarencio, G.R. No. L-29788, August 30, 1979, 46 SCRA 734; Morfe v. Mutuc, supra;
Peralta v. COMELEC, G.R. No. L-47771, March 11, 1978, 82 SCRA 30]. Those who petition this Court to
declare a law, or parts thereof, unconstitutional must clearly establish the basis for such a declaration.
otherwise, their petition must fail. Based on the grounds raised by petitioners to challenge the
constitutionality of R.A. No. 6734, the Court finds that petitioners have failed to overcome the
presumption. The dismissal of these two petitions is, therefore, inevitable.

WHEREFORE, the petitions are DISMISSED for lack of merit.

SO ORDERED.

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. OSMEA 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 TAADA, ZENAIDA QUEZON-AVENCEA,


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.1

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.4
On October 6, 1998, the President, acting through respondent Executive Secretary Ronaldo
Zamora, officially transmitted to the Senate of the Philippines,5 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.7

On May 3, 1999, the Committees submitted Proposed Senate Resolution No. 4438
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) vote9 of its members. Senate Resolution No. 443 was then re-numbered as Senate
Resolution No. 18.10

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
others 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 consolidated11 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:

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 petitioners 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.13

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.14

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.15 On this point, it bears stressing that a taxpayers suit
refers to a case where the act complained of directly involves the illegal disbursement of public
funds derived from taxation.16 Thus, in Bugnay Const. & Development Corp. vs. Laron17 , 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 Taada, 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.19

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,20 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,23 where we emphatically
held:

"Considering however the importance to the public of the case at bar, and in keeping with the
Courts 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,25 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.26

In Leveriza vs. Intermediate Appellate Court,27 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."29 (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,31 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,33 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.34

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.37

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.38 International law continues to make no distinction between treaties and
executive agreements: they are equally binding obligations upon nations.39

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,40 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."41

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 nations 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.44

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.45

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."48

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.49

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.50

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 nations foreign policy; his "dominance in the field of foreign relations
is (then) conceded."51 Wielding vast powers an influence, his conduct in the external affairs of
the nation, as Jefferson describes, is "executive altogether."52

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 Courts 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 Tribunals 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 powerIt has no power
to look into what it thinks is apparent error."55

As to the power to concur with treaties, the constitution lodges the same with the Senate
alone.1wphi1 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 nations 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.

G.R. No. 151445 April 11, 2002

ARTHUR D. LIM and PAULINO R. ERSANDO, petitioners,


vs.
HONORABLE EXECUTIVE SECRETARY as alter ego of HER EXCELLENCEY
GLORIA MACAPAGAL-ARROYO, and HONORABLE ANGELO REYES in his capacity
as Secretary of National Defense, respondents.

----------------------------------------

SANLAKAS and PARTIDO NG MANGGAGAWA, petitioners-intervenors,


vs.
GLORIA MACAPAGA-ARROYO, ALBERTO ROMULO, ANGELO REYES, respondents.

DISSENTING OPINION

SEPARATE OPINION
DE LEON, JR., J.:

This case involves a petition for certiorari and prohibition as well as a petition-in-intervention,
praying that respondents be restrained from proceeding with the so-called "Balikatan 02-1" and
that after due notice and hearing, that judgment be rendered issuing a permanent writ of
injunction and/or prohibition against the deployment of U.S. troops in Basilan and Mindanao for
being illegal and in violation of the Constitution.

The facts are as follows:

Beginning January of this year 2002, personnel from the armed forces of the United States of
America started arriving in Mindanao to take part, in conjunction with the Philippine military, in
"Balikatan 02-1." These so-called "Balikatan" exercises are the largest combined training
operations involving Filipino and American troops. In theory, they are a simulation of joint
military maneuvers pursuant to the Mutual Defense Treaty,1 a bilateral defense agreement
entered into by the Philippines and the United States in 1951.

Prior to the year 2002, the last "Balikatan" was held in 1995. This was due to the paucity of any
formal agreement relative to the treatment of United States personnel visiting the Philippines. In
the meantime, the respective governments of the two countries agreed to hold joint exercises on a
reduced scale. The lack of consensus was eventually cured when the two nations concluded the
Visiting Forces Agreement (V FA) in 1999.

The entry of American troops into Philippine soil is proximately rooted in the international anti-
terrorism campaign declared by President George W. Bush in reaction to the tragic events that
occurred on September 11, 2001. On that day, three (3) commercial aircrafts were hijacked,
flown and smashed into the twin towers of the World Trade Center in New York City and the
Pentagon building in Washington, D.C. by terrorists with alleged links to the al-Qaeda ("the
Base"), a Muslim extremist organization headed by the infamous Osama bin Laden. Of no
comparable historical parallels, these acts caused billions of dollars worth of destruction of
property and incalculable loss of hundreds of lives.

On February 1, 2002, petitioners Arthur D. Lim and Paulino P. Ersando filed this petition for
certiorari and prohibition, attacking the constitutionality of the joint exercise.2 They were joined
subsequently by SANLAKAS and PARTIDO NG MANGGAGAWA, both party-Iist
organizations, who filed a petition-in-intervention on February 11, 2002.

Lim and Ersando filed suit in their capacities as citizens, lawyers and taxpayers. SANLAKAS
and PARTIDO, on the other hand, aver that certain members of their organization are residents of
Zamboanga and Sulu, and hence will be directly affected by the operations being conducted in
Mindanao. They likewise pray for a relaxation on the rules relative to locus standi citing the
unprecedented importance of the issue involved.

On February 71 2002 the Senate conducted a hearing on the "Balikatan" exercise wherein Vice-
President Teofisto T. Guingona, Jr., who is concurrently Secretary of Foreign. Affairs, presented
the Draft Terms of Reference (TOR).3 Five days later, he approved the TOR, which we quote
hereunder:

I. POLICY LEVEL

1. The Exercise shall be consistent with the Philippine Constitution and all its activities
shall be in consonance with the laws of the land and the provisions of the RP-US Visiting
Forces Agreement (VFA).

2. The conduct of this training Exercise is in accordance with pertinent United Nations
resolutions against global terrorism as understood by the respective parties.

3. No permanent US basing and support facilities shall be established. Temporary


structures such as those for troop billeting, classroom instruction and messing may be set
up for use by RP and US Forces during the Exercise.

4. The Exercise shall be implemented jointly by RP and US Exercise Co-Directors under


the authority of the Chief of Staff, AFP. In no instance will US Forces operate
independently during field training exercises (FTX). AFP and US Unit Commanders will
retain command over their respective forces under the overall authority of the Exercise
Co-Directors. RP and US participants shall comply with operational instructions of the
AFP during the FTX.

5. The exercise shall be conducted and completed within a period of not more than six
months, with the projected participation of 660 US personnel and 3,800 RP Forces. The
Chief of Staff, AFP shall direct the Exercise Co-Directors to wind up and terminate the
Exercise and other activities within the six month Exercise period.

6. The Exercise is a mutual counter-terrorism advising, assisting and training Exercise


relative to Philippine efforts against the ASG, and will be conducted on the Island of
Basilan. Further advising, assisting and training exercises shall be conducted in
Malagutay and the Zamboanga area. Related activities in Cebu will be for support of the
Exercise.

7. Only 160 US Forces organized in 12-man Special Forces Teams shall be deployed with
AFP field, commanders. The US teams shall remain at the Battalion Headquarters and,
when approved, Company Tactical headquarters where they can observe and assess the
performance of the AFP Forces.

8. US exercise participants shall not engage in combat, without prejudice to their right of
self-defense.

9. These terms of Reference are for purposes of this Exercise only and do not create
additional legal obligations between the US Government and the Republic of the
Philippines.
II. EXERCISE LEVEL

1. TRAINING

a. The Exercise shall involve the conduct of mutual military assisting, advising
and training of RP and US Forces with the primary objective of enhancing the
operational capabilities of both forces to combat terrorism.

b. At no time shall US Forces operate independently within RP territory.

c. Flight plans of all aircraft involved in the exercise will comply with the local air
traffic regulations.

2. ADMINISTRATION & LOGISTICS

a. RP and US participants shall be given a country and area briefing at the start of
the Exercise. This briefing shall acquaint US Forces on the culture and
sensitivities of the Filipinos and the provisions of the VF A. The briefing shall
also promote the full cooperation on the part of the RP and US participants for the
successful conduct of the Exercise.

b. RP and US participating forces may share, in accordance with their respective


laws and regulations, in the use of their resources, equipment and other assets.
They will use their respective logistics channels.

c. Medical evaluation shall be jointly planned and executed utilizing RP and US


assets and resources.

d. Legal liaison officers from each respective party shall be appointed by the
Exercise Directors.

3. PUBLIC AFFAIRS

a. Combined RP-US Information Bureaus shall be established at the Exercise


Directorate in Zamboanga City and at GHQ, AFP in Camp Aguinaldo, Quezon
City.

b. Local media relations will be the concern of the AFP and all public affairs
guidelines shall be jointly developed by RP and US Forces.

c. Socio-Economic Assistance Projects shall be planned and executed jointly by


RP and US Forces in accordance with their respective laws and regulations, and in
consultation with community and local government officials.
Contemporaneously, Assistant Secretary for American Affairs Minerva Jean A. Falcon and
United States Charge d' Affaires Robert Fitts signed the Agreed Minutes of the discussion
between the Vice-President and Assistant Secretary Kelly.4

Petitioners Lim and Ersando present the following arguments:

THE PHILIPPINES AND THE UNITED STATES SIGNED THE MUTUAL DEFENSE
TREATY (MDT) in 1951 TO PROVIDE MUTUAL MILITARY ASSIST ANCE IN
ACCORDANCE WITH THE 'CONSTITUTIONAL PROCESSE-S' OF EACH
COUNTRY ONLY IN THE CASE OF AN ARMED ATTACK BY AN EXTERNAL
AGGRESSOR, MEANING A THIRD COUNTRY AGAINST ONE OF THEM.

BY NO STRETCH OF THE IMAGINA TION CAN IT BE SAID THAT THE ABU


SAYYAF BANDITS IN BASILAN CONSTITUTE AN EXTERNAL ARMED FORCE
THAT HAS SUBJECT THE PHILIPPINES TO AN ARMED EXTERNAL ATTACK TO
WARRANT U.S. MILITARY ASSISTANCE UNDER THE MDT OF 1951.

II

NEITHER DOES THE VFA OF 1999 AUTHORIZE AMERICAN SOLDIERS TO


ENGAGE IN COMBAT OPERATIONS IN PHILIPPINE TERRITORY, NOT EVEN TO
FIRE BACK "IF FIRED UPON".

Substantially the same points are advanced by petitioners SANLAKAS and PARTIDO.

In his Comment, the Solicitor General points to infirmities in the petitions regarding, inter alia,
Lim and Ersando's standing to file suit, the prematurity of the action, as well as the impropriety
of availing of certiorari to ascertain a question of fact. Anent their locus standi, the Solicitor
General argues that first, they may not file suit in their capacities as, taxpayers inasmuch as it has
not been shown that "Balikatan 02-1 " involves the exercise of Congress' taxing or spending
powers. Second, their being lawyers does not invest them with sufficient personality to initiate
the case, citing our ruling in Integrated Bar of the Philippines v. Zamora.5 Third, Lim and
Ersando have failed to demonstrate the requisite showing of direct personal injury. We agree.

It is also contended that the petitioners are indulging in speculation. The Solicitor General is of
the view that since the Terms of Reference are clear as to the extent and duration of "Balikatan
02-1," the issues raised by petitioners are premature, as they are based only on a fear of future
violation of the Terms of Reference. Even petitioners' resort to a special civil action for certiorari
is assailed on the ground that the writ may only issue on the basis of established facts.

Apart from these threshold issues, the Solicitor General claims that there is actually no question
of constitutionality involved. The true object of the instant suit, it is said, is to obtain an
interpretation of the V FA. The Solicitor General asks that we accord due deference to the
executive determination that "Balikatan 02-1" is covered by the VFA, considering the President's
monopoly in the field of foreign relations and her role as commander-in-chief of the Philippine
armed forces.

Given the primordial importance of the issue involved, it will suffice to reiterate our view on this
point in a related case:

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. [citation omitted]

This principle was reiterated in the subsequent cases of Gonzales vs. COMELEC, Daza
vs. Singson, 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 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. xxx'

Again, in the more recent case of Kilosbayan vs. Guingona, Jr., this Court 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 department of the government a
becoming respect for each other's act, this Court nevertheless resolves to take cognizance
of the instant petition.6

Hence, we treat with similar dispatch the general objection to the supposed prematurity of the
action. At any rate, petitioners' concerns on the lack of any specific regulation on the latitude of
activity US personnel may undertake and the duration of their stay has been addressed in the
Terms of Reference.
The holding of "Balikatan 02-1" must be studied in the framework of the treaty antecedents to
which the Philippines bound itself. The first of these is the Mutual Defense Treaty (MDT, for
brevity). The MDT has been described as the "core" of the defense relationship between the
Philippines and its traditional ally, the United States. Its aim is to enhance the strategic and
technological capabilities of our armed forces through joint training with its American
counterparts; the "Balikatan" is the largest such training exercise directly supporting the MDT's
objectives. It is this treaty to which the V FA adverts and the obligations thereunder which it
seeks to reaffirm.

The lapse of the US-Philippine Bases Agreement in 1992 and the decision not to renew it created
a vacuum in US-Philippine defense relations, that is, until it was replaced by the Visiting Forces
Agreement. It should be recalled that on October 10, 2000, by a vote of eleven to three, this
Court upheld the validity of the VFA.7 The V FA provides the "regulatory mechanism" by which
"United States military and civilian personnel [may visit] temporarily in the Philippines in
connection with activities approved by the Philippine Government." It contains provisions
relative to entry and departure of American personnel, driving and vehicle registration, criminal
jurisdiction, claims, importation and exportation, movement of vessels and aircraft, as well as the
duration of the agreement and its termination. It is the VFA which gives continued relevance to
the MDT despite the passage of years. Its primary goal is to facilitate the promotion of optimal
cooperation between American and Philippine military forces in the event of an attack by a
common foe.

The first question that should be addressed is whether "Balikatan 02-1" is covered by the Visiting
Forces Agreement. To resolve this, it is necessary to refer to the V FA itself: Not much help can
be had therefrom, unfortunately, since the terminology employed is itself the source of the
problem. The VFA permits United States personnel to engage, on an impermanent basis, in
"activities," the exact meaning of which was left undefined. The expression is ambiguous,
permitting a wide scope of undertakings subject only to the approval of the Philippine
government.8 The sole encumbrance placed on its definition is couched in the negative, in that
United States personnel must "abstain from any activity inconsistent with the spirit of this
agreement, and in particular, from any political activity."9 All other activities, in other words, are
fair game.

We are not left completely unaided, however. The Vienna Convention on the Law of Treaties,
which contains provisos governing interpretations of international agreements, state:

SECTION 3. INTERPRETATION OF TREATIES

Article 31

General rule of interpretation

1. A treaty shall be interpreted in good faith ill accordance with the ordinary meaning to
be given to the tenus of the treaty in their context and in the light of its object and
purpose.
2. The context for the purpose of the interpretation of a treaty shall comprise, in addition
to the text, including its preamble and annexes:

(a) any agreement relating to the treaty which was made between all the parties in
connexion with the conclusion of the treaty;

(b) any instrument which was made by one or more parties in connexion with the
conclusion of the treaty and accepted by the other parties as an instrument related
to the party .

3. There shall be taken into account, together with the context:

(a) any subsequent agreement between the parties regarding the interpretation of
the treaty or the application of its provisions;

(b) any subsequent practice in the application of the treaty which establishes the
agreement of the parties regarding its interpretation;

(c) any relevant rules of international law applicable in the relations between the
parties.

4. A special meaning shall be given to a term if it is established that the parties so


intended.

Article 32

Supplementary means of interpretation

Recourse may be had to supplementary means of interpretation, including the preparatory


work of the treaty and the circumstances of its conclusion, in order to confirm the
meaning resulting from the application of article 31, or to determine the meaning when
the interpretation according to article 31 :

(a) leaves the meaning ambiguous or obscure; or

(b) leads to a result which is manifestly absurd unreasonable.

It is clear from the foregoing that the cardinal rule of interpretation must involve an examination
of the text, which is presumed to verbalize the parties' intentions. The Convention likewise
dictates what may be used as aids to deduce the meaning of terms, which it refers to as the
context of the treaty, as well as other elements may be taken into account alongside the aforesaid
context. As explained by a writer on the Convention ,

[t]he Commission's proposals (which were adopted virtually without change by the
conference and are now reflected in Articles 31 and 32 of the Convention) were clearly
based on the view that the text of a treaty must be presumed to be the authentic
expression of the intentions of the parties; the Commission accordingly came down
firmly in favour of the view that 'the starting point of interpretation is the elucidation of
the meaning of the text, not an investigation ab initio into the intentions of the parties'.
This is not to say that the travauxpreparatoires of a treaty , or the circumstances of its
conclusion, are relegated to a subordinate, and wholly ineffective, role. As Professor
Briggs points out, no rigid temporal prohibition on resort to travaux preparatoires of a
treaty was intended by the use of the phrase 'supplementary means of interpretation' in
what is now Article 32 of the Vienna Convention. The distinction between the general
rule of interpretation and the supplementary means of interpretation is intended rather to
ensure that the supplementary means do not constitute an alternative, autonomous method
of interpretation divorced from the general rule.10

The Terms of Reference rightly fall within the context of the VFA.

After studied reflection, it appeared farfetched that the ambiguity surrounding the meaning of the
word .'activities" arose from accident. In our view, it was deliberately made that way to give both
parties a certain leeway in negotiation. In this manner, visiting US forces may sojourn in
Philippine territory for purposes other than military. As conceived, the joint exercises may
include training on new techniques of patrol and surveillance to protect the nation's marine
resources, sea search-and-rescue operations to assist vessels in distress, disaster relief operations,
civic action projects such as the building of school houses, medical and humanitarian missions,
and the like.

Under these auspices, the VFA gives legitimacy to the current Balikatan exercises. It is only
logical to assume that .'Balikatan 02-1," a "mutual anti- terrorism advising, assisting and training
exercise," falls under the umbrella of sanctioned or allowable activities in the context of the
agreement. Both the history and intent of the Mutual Defense Treaty and the V FA support the
conclusion that combat-related activities -as opposed to combat itself -such as the one subject of
the instant petition, are indeed authorized.

That is not the end of the matter, though. Granted that "Balikatan 02-1" is permitted under the
terms of the VFA, what may US forces legitimately do in furtherance of their aim to provide
advice, assistance and training in the global effort against terrorism? Differently phrased, may
American troops actually engage in combat in Philippine territory? The Terms of Reference are
explicit enough. Paragraph 8 of section I stipulates that US exercise participants may not engage
in combat "except in self-defense." We wryly note that this sentiment is admirable in the
abstract but difficult in implementation. The target of "Balikatan 02-1 I" the Abu Sayyaf, cannot
reasonably be expected to sit idly while the battle is brought to their very doorstep. They cannot
be expected to pick and choose their targets for they will not have the luxury of doing so. We
state this point if only to signify our awareness that the parties straddle a fine line, observing the
honored legal maxim "Nemo potest facere per alium quod non potest facere per directum."11 The
indirect violation is actually petitioners' worry, that in reality, "Balikatan 02-1 " is actually a war
principally conducted by the United States government, and that the provision on self-defense
serves only as camouflage to conceal the true nature of the exercise. A clear pronouncement on
this matter thereby becomes crucial.
In our considered opinion, neither the MDT nor the V FA allow foreign troops to engage in an
offensive war on Philippine territory. We bear in mind the salutary proscription stated in the
Charter of the United Nations, to wit:

Article 2

The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act
in accordance with the following Principles.

xxx xxx xxx xxx

4. All Members shall refrain in their international relations from the threat or use of force
against the territorial integrity or political independence of any state, or in any other
manner inconsistent with the Purposes of the United Nations.

xxx xxx xxx xxx

In the same manner, both the Mutual Defense Treaty and the Visiting Forces Agreement, as in all
other treaties and international agreements to which the Philippines is a party, must be read in the
context of the 1987 Constitution. In particular, the Mutual Defense Treaty was concluded way
before the present Charter, though it nevertheless remains in effect as a valid source of
international obligation. The present Constitution contains key provisions useful in determining
the extent to which foreign military troops are allowed in Philippine territory. Thus, in the
Declaration of Principles and State Policies, it is provided that:

xxx xxx xxx xxx

SEC. 2. The Philippines renounces war as an instrument of national policy, adopts the
generally accepted principles of international law as part of the law of the land and
adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all
nations.

xxx xxx xxx xxx

SEC. 7. The State shall pursue an independent foreign policy. In its relations with other
states the paramount consideration shall be national sovereignty, territorial integrity,
national interest, and the right to self- determination.

SEC. 8. The Philippines, consistent with the national interest, adopts and pursues a policy
of freedom from nuclear weapons in the country.

xxx xxx xxx xxx

The Constitution also regulates the foreign relations powers of the Chief Executive when it
provides that "[n]o treaty or international agreement shall be valid and effective unless concurred
in by at least two-thirds of all the members of the Senate."12 Even more pointedly, the Transitory
Provisions state:

Sec. 25. 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.

The aforequoted provisions betray a marked antipathy towards foreign military presence in the
country, or of foreign influence in general. Hence, foreign troops are allowed entry into the
Philippines only by way of direct exception. Conflict arises then between the fundamental law
and our obligations arising from international agreements.

A rather recent formulation of the relation of international law vis-a-vis municipal law was
expressed in Philip Morris, Inc. v. Court of Appeals,13 to wit:

xxx Withal, the fact that international law has been made part of the law of the land does
not by any means imply the primacy of international law over national law in the
municipal sphere. Under the doctrine of incorporation as applied in most countries, rules
of international law are given a standing equal, not superior, to national legislation.

This is not exactly helpful in solving the problem at hand since in trying to find a middle ground,
it favors neither one law nor the other, which only leaves the hapless seeker with an unsolved
dilemma. Other more traditional approaches may offer valuable insights.

From the perspective of public international law, a treaty is favored over municipal law pursuant
to the principle of pacta sunt servanda. Hence, "[e]very treaty in force is binding upon the
parties to it and must be performed by them in good faith."14 Further, a party to a treaty is not
allowed to "invoke the provisions of its internal law as justification for its failure to perform a
treaty."15

Our Constitution espouses the opposing view. Witness our jurisdiction as I stated in section 5 of
Article VIII:

The Supreme Court shall have the following powers:

xxx xxx xxx xxx

(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the
Rules of Court may provide, final judgments and order of lower courts in:

(A) All cases in which the constitutionality or validity of any treaty, international or
executive agreement, law, presidential decree, proclamation, order, instruction, ordinance,
or regulation is in question.
xxx xxx xxx xxx

In Ichong v. Hernandez,16 we ruled that the provisions of a treaty are always subject to
qualification or amendment by a subsequent law, or that it is subject to the police power of the
State. In Gonzales v. Hechanova,17

xxx As regards the question whether an international agreement may be invalidated by


our courts, suffice it to say that the Constitution of the Philippines has clearly settled it in
the affirmative, by providing, in Section 2 of Article VIII thereof, that the Supreme Court
may not be deprived "of its jurisdiction to review, revise, reverse, modify, or 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 -( I) All cases in which the constitutionality or
validity of any treaty, law, ordinance, or executive order or regulation is in question." In
other words, our Constitution authorizes the nullification of a treaty, not only when it
conflicts with the fundamental law, but, also, when it runs counter to an act of Congress.

The foregoing premises leave us no doubt that US forces are prohibited / from engaging in an
offensive war on Philippine territory.

Yet a nagging question remains: are American troops actively engaged in combat alongside
Filipino soldiers under the guise of an alleged training and assistance exercise? Contrary to what
petitioners would have us do, we cannot take judicial notice of the events transpiring down
south,18 as reported from the saturation coverage of the media. As a rule, we do not take
cognizance of newspaper or electronic reports per se, not because of any issue as to their truth,
accuracy, or impartiality, but for the simple reason that facts must be established in accordance
with the rules of evidence. As a result, we cannot accept, in the absence of concrete proof,
petitioners' allegation that the Arroyo government is engaged in "doublespeak" in trying to pass
off as a mere training exercise an offensive effort by foreign troops on native soil. The petitions
invite us to speculate on what is really happening in Mindanao, to issue I make factual findings
on matters well beyond our immediate perception, and this we are understandably loath to do.

It is all too apparent that the determination thereof involves basically a question of fact. On this
point, we must concur with the Solicitor General that the present subject matter is not a fit topic
for a special civil action for certiorari. We have held in too many instances that questions of fact
are not entertained in such a remedy. The sole object of the writ is to correct errors of jurisdiction
or grave abuse of discretion: The phrase "grave abuse of discretion" has a precise meaning in
law, denoting abuse of discretion "too patent and gross as to amount to an evasion of a positive
duty, or a virtual refusal to perform the duty enjoined or act in contemplation of law, or where the
power is exercised in an arbitrary and despotic manner by reason of passion and personal
hostility."19

In this connection, it will not be amiss to add that the Supreme Court is not a trier of facts.20

Under the expanded concept of judicial power under the Constitution, courts are charged with the
duty "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."21 From
the facts obtaining, we find that the holding of "Balikatan 02-1" joint military exercise has not
intruded into that penumbra of error that would otherwise call for correction on our part. In other
words, respondents in the case at bar have not committed grave abuse of discretion amounting to
lack or excess of jurisdiction.

WHEREFORE, the petition and the petition-in-intervention are hereby DISMISSED without
prejudice to the filing of a new petition sufficient in form and substance in the proper Regional
Trial Court.

SO ORDERED.

EN BANC

G.R. No. 151445 April 11, 2002

ARTHUR D. LIM and PAULINO R. ERSANDO, petitioners,


vs.
HONORABLE EXECUTIVE SECRETARY as alter ego of HER EXCELLENCY
PRESIDENT GLORIA MACAPAGAL-ARROYO and HONORABLE ANGELO REYES
in his official capacity as Secretary of National Defense, respondents.
SANLAKAS and PARTIDO NG MANGGAGAWA, intervenors.

DISSENTING OPINION

KAPUNAN, J.:

On September 11, 2001, terrorists, with the use of hijacked commercial airplanes, attacked the
World Trade Center Building in New York City and the Pentagon Building in Washington D.C.,
U.S.A., killing thousands of people.

Following the attacks, the United States declared a "global war" against terrorism and started to
bomb and attack Afghanistan to topple the Taliban regime and capture Osama bin Laden, the
suspected mastermind of the September 11, 2001 attacks. With the Northern Alliance mainly
providing the ground forces, the Taliban regime fell in a few months, without Osama bin Laden
having been captured. He is believed either to be still in Afghanistan or has crossed the border
into Pakistan.

In line with President Gloria Macapagal-Arroyo's pledge to render all-out aid to the US in its
campaign against "global terrorism," an arrangement for a. joint military exercises known as
"RP-US Balikatan 02-1 Exercises" was entered into between the US and Philippine authorities,
allegedly within the ambit of the Visiting Forces Agreement (V FA) with the main objective of
enhancing the operational capabilities of the countries in combating terrorism. The US
government has identified the Abu Sayyaf Group (ASG) in the Philippines as a terrorist group
forming part of a "terrorist underground" linked to the al-Qaeda network of Osama bin Laden.

Beginning January 21, 2002, American troops started arriving in Mindanao as part of the total
contingent force of 660 soldiers, 160 to be stationed in Basilan, 200 to 250 in Zamboanga, and
250 in the Air Force base in Mactan, Cebu.

The salient features of the joint military exercises as embodied in the Terms of Reference (TOR)
are summarized as follows:

(a) The exercise shall be consistent with the Constitution and other Philippine laws,
particularly the RP-US Visiting Forces Agreement;

(b) No permanent US bases and support facilities will be established;

(c) The exercise shall be implemented jointly by RP and US Exercise Co-Directors under
the direction of the Chief of Staff of the AFP and in no instance will US Forces operate
independently during field training exercises;

(d) It shall be conducted and completed within a period of not more than six months, with
the projected participation of 660 US personnel and 3,800 RP forces, and the Chief of
Staff of the AFP shall direct the Exercise Co-Directors to wind up the Exercise and other
activities and the withdrawal of US forces within the six-month period;

(e) The exercise "is a mutual counter-terrorism advising, assisting and training exercise"
relative to Philippine efforts against the Abu Sayyaf Group and will be conducted on the
Island of Basilan. Further advising, assisting and training exercises shall be conducted in
Malagutay and the Zamboanga area. Related activities in Cebu will also be conducted in
support of the Exercise;

(f) Only 160 US troops organized in 12-man Special Forces Teams shall be deployed in
Basilan, with the US Team remaining at the Company Tactical Headquarters where they
can observe and assess the performance of the troops; and

(g) US exercise participants shall not engage in combat, without prejudice to their right to
self-defense.

Petitioners now seek the issuance of a writ of prohibition/injunction to prevent US troops from
participating in areas of armed conflict on the ground that such is in gross violation of the
Constitution. They argue that:

THE PHILIPPINES AND THE UNITED STATES SIGNED THE MUTUAL DEFENSE
TREATY (MDT) IN 1951 TO PROVIDE MUTUAL MILITARY ASSISTANCE IN
ACCORDANCE WITH THE CONSTITUTIONAL PROCESSES" OF EACH
COUNTRY ONLY IN THE CASE OF AN ARMED ATTACK BY AN EXTERNAL
AGGRESSOR, MEANING A THIRD COUNTRY AGAINST ONE OF THEM.

BY NO STRETCH OF THE IMAGINATION CAN IT BE SAID THAT THE ABU


SAYYAF BANDITS IN BASILAN CONSTITUTE AN EXTERNAL ARMED FORCE
THAT HAS SUBJECTED THE PHILIPPINES TO AN ARMED EXTERNAL ATTACK
TO WARRANT US MILITARY ASSISTANCE UNDER THE MDT OF 1951.

II

NEITHER DOES THE VFA OF 1999 AUTHORIZED AMERICAN SOLDIERS TO


ENGAGE IN COMBAT OPERATIONS IN PHILIPPINE TERRITORY, NOT EVEN TO
FIRE BACK "IF FIRED UPON."

Sanlakas and Partido ng Manggagawa as intervenors seek the same relief as petitioners, stressing
that the Constitution prohibits the presence of foreign military troops or facilities in the country,
except under a treaty duly concurred in by the Senate and recognized as a treaty by the other
state.

The petition is impressed with merit.

There is no treaty allowing


US troops to engage in combat.

The Constitution prohibits foreign military bases, troops or facilities unless a treaty permits the
same. Section 25, Article XVIII of the Constitution 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.

There is no treaty allowing foreign military troops to engage in combat with internal elements.

The Mutual Defense Treaty (MDT) between the Republic of the Philippines and the United
States of America does not authorize US military troops to engage the ASG in combat. The MDT
contemplates only an "external armed attack." Article III of the treaty cannot be more explicit:

The Parties, through their Foreign Ministers or their deputies, will consult together from
time to time regarding the implementation of this treaty and whenever in the opinion of
either of them the territorial integrity, political independence or security of either of the
Parties is threatened by external armed attack in the Pacific. [Emphasis supplied.]
Supporting this conclusion is the third paragraph of the MDT preamble where the parties express
their desire

to declare publicly and formally their sense of unity and their common determination to
defend themselves against external armed attack, so that no potential aggressor could be
under the illusion that either of them stands alone in the Pacific area. [Emphasis
supplied.]

There is no evidence that


the ASG is connected with
"global terrorism."

There is no empirical basis for the allegation that the "terrorism" which the ASG is accused of
constitutes an "external armed attack." The ASG has committed mostly crimes of kidnapping for
ransom and murder - common crimes that are punishable under the penal code but which, by
themselves, hardly constitute "terrorism."

Parenthetically, there is lack of agreement as to the precise definition of terrorism. Indeed, one
man's terrorist may be another man's freedom fighter. The divergent interests of States have
caused contradicting definitions and conflicting perceptions of what constitutes "terrorist acts"
that make it difficult for the United Nations to reach a decision on the definition of terrorism.
Because of this "definitional predicament," the power of definition is easily exercised by a
superpower which, by reason of its unchallenged hegemony, could draw lists of what it considers
terrorist organizations or states sponsoring terrorism based on criteria determined by the
hegemon's own strategic interests.1

In any case, ties between the ASG and so-called international "terrorist" organizations have not
been established.2 Even assuming that such ties do exist, it does not necessarily make the
"attacks" by the ASG "external" as to fall within the ambit of the MDT.

Balikatan exercises are


not covered by VFA as
US troops are not
allowed to engage in combat.

Neither is the present situation covered by the so-called Visiting Forces Agreement (VFA). The V
FA was concluded after the removal of the US military bases, troops and facilities in the
aftermath of the termination of the treaty allowing the presence of American military bases in the
Philippines. The VF A is nothing more than what its formal name suggests: an "Agreement
between the Government of the Republic of the Philippines and the Government of the United
States of America regarding the Treatment of United States Armed Forces Visiting the
Philippines. "The last paragraph of the V FA preamble also "recogniz[es] the desirability of
defining the treatment of United States personnel visiting the Republic of the Philippines."

The VFA was entered into to enable American troops to enter the country again after the removal
of the American military bases so they can participate in military exercises under the auspices of
the Mutual Defense Treaty. It provided the legal framework under which American soldiers will
be treated while they remain in the country.

The military exercises contemplated in the VFA are those in accordance with the National
Defense Plan (NDP) of the Philippines. The NDP was previously approved and adopted by the
Mutual Defense Board, jointly chaired by the Chief of Staff of the Armed Forces of the
Philippines and the Commander in the Pacific of the United States Armed Forces.

The NDP is directed against potential foreign aggressors, not designed to deal with internal
disorders. This was what the Senate understood when it ratified the VFA in Senate Resolution
No. 18, which reads:

The VFA shall serve as the legal mechanism to promote defense cooperation between the
two countries, enhancing the preparedness of the Armed Forces of the Philippines against
external threats; and enabling the Philippines to bolster the stability of the Pacific Area in
a shared effort with its neighbor states.

The VFA's ambiguous reference to "activities"3 is not a loophole that legitimizes the presence of
US troops in Basilan. In the treaty's preamble, the parties "reaffirm their obligations under the
Mutual Defense Treaty of August 30, 1951." As the preamble comprises part of a treaty's context
for the purpose of interpretation, the VFA must be read in light of the provisions of the MDT. As
stated earlier, the MDT contemplates only an external armed attack; consequently, the
"activities" referred to in the V FA cannot thus be interpreted to include armed confrontation with
or suppression of the ASG members who appear to be mere local bandits, mainly engaged in
kidnapping for ransom and murder -even arson, extortion and illegal possession of firearms, all
of which are common offenses under our criminal laws. These activities involve purely police
matters and domestic law and order problems; they are hardly "external" attacks within the
contemplation of the MDT and the V FA. To construe the vagueness of the term "activities" in
the V FA as authorizing American troops to confront the ASG in armed conflict would, therefore,
contravene both spirit and letter of the MDT.

Respondents maintain that the American troops are not here to fight the ASG but merely to
engage in "training exercises." To allay fears that the American troops are here to engage the
ASG in combat, the TOR professes that the present exercise "is a mutual counter-terrorism
advising, assisting and training Exercise relative to Philippine efforts against the ASG, and will
be conducted on the Island of Basilan." The TOR further provides that the "exercise" shall
involve the conduct of "mutual military assisting, advising and training of RP and US Forces
with the primary objective of enhancing the operational capabilities of both forces to combat
terrorism."

These avowals of assistance, advice, and training, however, fly in the face of the presence of US
troops in the heart of the ASG's stronghold. Such presence is an act of provocation that makes an
armed confrontation between US soldiers and ASG members inevitable.

The US troops in Basilan have been described as being "on a slippery slope between training
and fighting." Their very presence makes them a target for terrorist and for the local Moslem
populace, which has been bitterly anti-American since colonial times. Though they are called
advisers, the Americans win be going on risky missions deep into the jungle. A former Green
Beret who is an analyst of Washington's Center for Strategies and Budgetary Assessments notes
that "when troops go out on patrol, they come as close as they can to direct combat."4

"Advising" or "training" Filipino soldiers hardly describes the involvement of US troops


(unaccompanied by Filipino counterparts) on board combat helicopters which land on the
battlegrounds to evacuate Filipino soldiers wounded while fighting the ASG. For example, on
April 5,2002, US troops on board a Pave Hawk helicopter flew to the scene of a night battle on
Basilan Island to evacuate a wounded Filipino soldier. This was reportedly the third time in
recent weeks that chopper-borne US forces had evacuated Filipino soldiers fighting the ASG.5

Whatever euphemisms may be conjured to characterize American involvement, the RP-US


Balikatan 02-1 Exercises are aimed at seeking out the ASG and exterminating it.

The prohibition contained in the TOR against US exercise participants from engaging in combat
but "without prejudice to their right to self- defense" provides little consolation. Combat muddles
the distinction between aggression and self-defense. US troops can always say they did not fire
first and no one would dare say otherwise. The ASG has been so demonized that no one cares
how it is exorcised. Significantly, the TOR does not define the parameters of "self-defense."
Militarily, a pre-emptive strike could be interpreted as an act of self -defense.

What I fear most is that the country would be dragged into a more devastating and protracted
conflict as a result of the continued presence of US military troops in Basilan. A single ASG
sniper's bullet felling an American soldier could be used as an excuse for massive retaliation by
US ground and air forces to attack and bomb out every suspected ASG lair, all in the name of
"self -defense.

Apprehensions over possible catastrophic consequence of US military involvement in our


country are not without historical basis.

The US experience in Vietnam, for example, began as an expression of support for the
establishment of South Vietnam under Bao Dai's leadership in 1949 to. counteract the support
given by communist China and the Soviet Union to North Vietnam. In 1950, the US began
providing military assistance in fighting North Vietnam by sending military advisors as well as
US tanks, planes, artillery and other supplies. The US became more involved in the Vietnam
conflict when in 1961, it sent the first 400 Green Beret "Special Advisors" to South Vietnam to
train the latter's soldiers in methods of counter-insurgency against the Viet Cong guerillas. It
clarified that the American soldiers were not in Vietnam to engage in combat.6

However, due to the increased success of the Viet Cong guerillas, assisted by the Northern
Vietnamese Army, the US eventually began to run covert operations using South Vietnamese
commandos in speed boats to harass radar sites along the coastline of North Vietnam. In 1964,
after an alleged torpedo attack by North Vietnam of the American destroyers USS. Maddox and
USS. C. Turner Joy in the Gulf of Tonkin, the US decided to retaliate by conducting bombing
raids in North Vietnam.7
The Vietnam War resulted in the death of two million Vietnamese and injuries to three million
others. Twelve million Vietnamese became refugees and thousands of children became
orphaned.8 Millions of acres of Vietnam's forests were defoliated by a herbicide called Agent
Orange, dropped from the air. Millions of mines and unexploded bombs and artillery shells are
still scattered in the countryside, posing constant danger to life and limb.

US militarv presence is
essentially indefinite
and open-ended.

Already, there are indications that the US intends to reestablish a more enduring presence
in the country. Defense Secretary Angelo Reyes was quoted to have declared on March 20,
2002 that 2,665 US soldiers will take part in the RP-US Balikatan 02-2 starting next month in
Central Luzon and that 10 more military exercises will be held this year.9 How many more war
exercises are needed for "training and advising" Filipino soldiers? What conditions must be
satisfied for the United States to consider the "war against terrorism" in Mindanao terminated?
The endless frequency and successive repetition of the war exercises covering the two largest
islands of the country amount, in a real sense, to the permanent presence of foreign military
troops here sans a treaty in blatant violation of the constitutional proscription.

US President George w. Bush in his January 30, 2002 speech declared:

The men and women of our armed-forces have delivered a message to every enemy of
the United States. You shall not escape the justice of this nation. x x x.

Should any country be timid in the face of terror, if they do not act, America will.

President Arroyo, in a speech at the Regis Hotel in New York City on February 1, 2002, pledged
her "full support" to US President George W. Bush in the fight against international terrorism.
She declared that "the Philippines will continue to be a partner of the United States in the war to
end terrorism" and that "(t)he anti-terrorism partnership will continue after the whole world is
secure against the terrorist."10

In his speech on the White House Laws on March 11, 2002, President Bush exhorted:

America encourages and expects governments everywhere to help remove the terrorist
parasites that threaten their own countries and the peace of the world. x x x. We are
helping right now in the Philippines, where terrorist with links to Al Qaeda are trying to
seize the southern part of the country to establish a military regime.

They are oppressing local peoples, and have kidnapped both American and Filipino
citizens."11

The Philippine Daily Inquirer in its March 17, 2002 issue carried the following report:
The United States wants to bring in more troops for the controversial Balikatan 02-1
training exercise aimed at wiping out the Abu Sayyaf bandits in Basilan.

The US military last week began calling the war-games "Operation Enduring Freedom-
Philippines," giving credence to claims that the country has become, after Afghanistan,
the second front of the US-led global war on terrorism.

Today's issue of April 1, 2002 reporting as its source New York News Service, quoted a senior
Bush administration official as saying:

We are looking at prolonged training. x x x. It takes more to build up capabilities than


saying here are some night vision goggles.

The declarations of the two Presidents on the war against terrorism and their avowal to secure the
world against the terrorists would ineluctably suggest a long-drawn conflict without a
foreseeable end. Worse, it is not unlikely that this war could expand and escalate to include
as protagonists the Moro Islamic Liberation Front and the Moro National Liberation Front
and -not improbably -the National People's Army, all lumped-up as "terrorists" in a
unilateral characterization.

No less than US Deputy Defense Secretary Paul Wolfowitz declared that the proposed $48-
billion increase to the US defense budget for 2003 is intended to sustain the war on terrorism,12
including that fought in this country, thus: .

Deputy Defense Secretary Paul Wolfowitz on Wednesday said the Pentagon needs a big
budget increase next year on terrorism, which has expanded from Afghanistan to the
Philippines and now appears to be moving to Georgia.13

The Court can take judicial notice of the foregoing pronouncements as they are of public
knowledge,14 having been widely circulated in all channels of the media. Neither have they been
denied.

US military intervention
is not the solution to the
Mindanao problem.

Assuming that the ASG is a terrorist organization, U.S. military intervention is not the solution to
achieve peace. The annihilation of the rebel bandits would be a futile quest so long at the root
causes of their criminality are not addressed. A study15 by the United Nations Secretariat,
however, acknowledges that international terrorism springs from "misery, frustration, grievance
and 'despair," elements which, many believe, are present in Basilan. Two veteran Philippine
journalists have described the province as Mindanao's "war laboratory," where lawlessness,
government neglect, religious strife, poverty, and power struggle are rampant.16

If indeed acts of terrorism are cries of desperation, if terrorism is but a symptom of the greater
maladies of "misery, frustration, grievance and despair," then it cannot be remedied alone by
ASG's physical extermination, which appears to be the object of President Bush and President
Macapagal- Arroyo's joint campaign against global terrorism." Admittedly, the State has the right
to use force as a means of self-preservation. But perhaps we should all consider that a military
solution is but a first-aid measure, not the prescription to these diseases. It has been opined that:

The issue of terrorism in the Philippines should be dealt with not from the perspective of
Manila-Washington ties but from a serious study of how terrorism figures in the minds of
leaders and armed men belonging to the large but deeply factionalized guerrilla
movements in the country. Terrorism can never be dissociated from guerrilla warfare and
the separatist movement in Mindanao. From these movements would arise religious
extremists or millennarian groups. With the right resources and the right agenda, these
movements will continue to attract men-skilled, intelligent, and experienced-who will
come to grasp the practical realities of waging a war with the minimum of resources but
maximum public impact.

The government does not have to look for foreign connections-and be motivated by the
desire to help foreign friends to address a problem that has been and will be the making
of its own home grown armies.17

The presence of US troops in Basilan, whether from the legal, philosophical-or even from the
practical perspective cannot be justified, On the contrary, it is counterproductive. It serves to fuel
an already volatile situation. US troops are likely less able, if not less willing, to distinguish
between the innocent and the enemy. The inevitable "collateral damage," the killing of women
and children, Muslims and Christians, the destruction of homes, schools and hospitals would fan
the flames of fanaticism and transform mere rogues into martyrs.

The Filipino soldier has proven himself brave, courageous, fearless and tenacious in the field of
battle as shown in Bataan and Corregidor, in the four long years of guerilla warfare thereafter
against the Japanese, and in the struggle for independence against Spain and the United States at
the turn of the last century. The local army and police have successfully battled in the past
against Communist and other insurgents which were more organized and numerous, operating in
larger parts of the country and fighting for their political beliefs. If our troops need training by us
advisers or have to conduct joint exercises with US troops to improve their fighting capability,
these could be more effectively achieved if done outside Basilan or away from the danger zones.
Instead of bringing troops to the combat zones, the US can do more by supplying our soldiers
with modern and high tech weaponry.

Prescinding from the foregoing disquisitions, it is totally erroneous to argue that petitioners do
not have legal standing or that the issues raised by them are premature and not based on
sufficient facts. The issues raised are of transcendental importance.18 The Balikatan exercises
pose direct injury to some of the petitioners (intervenors) who live in the affected areas. The
presence of us troops in the combat zones "assisting" and "advising" our troops in combat against
the ASG is a blatant violation of the Constitutional proscription against the stationing of foreign
troops to fight a local insurgency and puts the country in peril of becoming a veritable killing
field. If the time is not ripe to challenge the continuing affront against the Constitution and the
safety of the people, when is the right time? When the countryside has been devastated and
numerous lives lost?

I therefore vote to give due course to the petition.

sgd. SANTIAGO M. KAPUNAN


Associate Justice

EN BANC

G.R. No. 151445 APRIL 11, 2002

ARTHUR D. LIM, ET AL., petitioners,


vs.
HONORABLE EXECUTIVE SECRETARY, ETC., ET AL., respondents.
SANLAKAS, ET AL., intervenors.

SEPARATE OPINION*

PANGANIBAN, J:

Through their "Petition for Certiorari and, Prohibition," Arthur D. Lim and Paulino R. Ersanda --
joined by Intervenors Sanlakas and Partido ng Manggagawa -- plead for the issuance of an order
"restraining the respondents from proceeding or continuing and completing the so-called
'Balikatan 02-1'" on the ground that the exercise is not sanctioned by any treaty and is, therefore,
allegedly unconstitutional.

Agreeing with the Comment of the Office of the Solicitor General (OSG), the ponencia of Mr.
Justice Sabino R. de Leon Jr. dismisses the Petition essentially on these procedural grounds:

1. As taxpayers, petitioners do not have legal standing or locus standi, because Balikatan
02-1 "does not involve the exercise by Congress of its taxing or spending power."

2. Certiorari and prohibition are improper remedies, because petitioners have not alleged
sufficient facts upon which grave abuse of discretion or excess/lack of jurisdiction could
be argued from.

3. The Petition is premature because the alleged violation of the Constitution is merely
speculative, not actual or imminent.
4. Though entitled "Certiorari and Prohibition," the Petition is really one for declaratory
relief which merely seeks an advice or opinion, not a decision. The Supreme Court has no
jurisdiction to issue opinions or advices.

Ordinarily, the above reasons would indeed be sufficient to cause the dismissal of a petition.
However, because of the "transcendental importance" of the main question raised - the
constitutionality of the Balikatan exercise - the Court, I believe, could have exempted this case
from these procedural requirements and tackled the case on the merits, if only to put to rest the
legality of this major event of public interest ill our country and even ill the world. I, for one,
would have voted to set aside these legalistic obstacles, had the Petition presented enough
factual moorings upon which to base an intelligent discussion and disposition of the legal issues.

For instance, this Court cannot be called upon to decide the factual issues of whether the US
forces are actually engaging the Abu Sayyaf Group ill combat and whether they will stay ill our
country permanently. This Court has no authority to conduct a trial, which can establish these
factual antecedents. Knowing what these antecedents are is necessary to determine whether the
Balikatan violates the Constitution or the Mutual Defense Treaty (MDT) of 1951 or the Visiting
Forces Agreement (VFA) of 1999. Verily, the Petition has not even alleged that the American
troops have indeed been unconstitutionally engaged ill actual offensive combat. The contention
that they would necessarily and surely violate the Constitution by participating ill the joint
exercise in Basilan is merely speculative. Petitioners aver:

"American soldiers with high-tech weaponry, disguised as trainers or advisers to Filipino


troops, will go to the war zones of Basilan. Hence, while dubbed as a military exercise, it
is in reality a continuing combat operation by the AFP against the Abu Sayyaf to be
participated in this time by U.S. troops. It has been admitted that U.S. 'advisers' will
accompany Filipino soldiers on patrol in the combat zones.

Also, a base of operation will be in the Sampinit complex which is in the heartland of the
Abu Sayyaf's 'territorial domain' in Basilan island. A shooting war, not just an exercise, is
unavoidable."

That a "shooting war is unavoidable" is conjectural; at best, a conclusion that is not borne by
solid factual moorings. Cases cannot be decided on mere speculation or prophecy .The Petition
claims that while the us troops are "disguised" as "advisers" or "trainors" or "chaperons," they
are actually combatants engaged in an offensive war against local insurgents. Again, there is no
solid factual basis for this statement. It may or may not be true. The Petition also alleges, again
without firm factual support, that the American forces will stay here indefinitely "for a year or
even more depending on the need of the AFP for them."

On the other hand, the OSG assures that petitioners' "apprehensions are belied" by the Terms of
Reference (TOR) approved by both the Philippines and the United States, which "expressly limit.
the conduct and completion of the exercise within a period not exceeding six " (6) months and
prohibits the American participants from engaging in combat, without prejudice to their right to
self-defense."
I stress that cases cannot be decided by this Court on the basis of speculative or hypothetical
assumptions like "If the facts were these, then our decision would be this; on the other hand, if
the facts change, then our ruling would be modified as follows. " Decisions of this Court
especially in certiorari and prohibition cases are issued only if the facts are clear and definite. As
a rule, courts may not consider or judge facts or matters unless they are alleged in the pleadings
and proven by the parties. Our duty is to apply the law to facts that are not in dispute.

In the absence of firm factual findings that the Americans "will stay indefinitely" in our country
or "are engaged in actual offensive combat with local insurgents" as alleged by petitioners,
respondent Philippine officials who are hosting the Balikatan exercise cannot possibly be
imputed with grave abuse of discretion - an indispensable element of certiorari. 1wphi1.nt

True, there are some questions that may genuinely be raised in regard to the Balikatan 02-1 vis-a-
vis our Constitution, the MDT and the VFA, like the following:

(1) Is the Abu Sayyaf Group composed of "international terrorists" whose acts and
practices violate the United Nations Charter to such an extent as to pose a threat to
international peace and security?

(2) Is there an "external armed attack" against the Philippines sufficient in force and
magnitude as to justify an invocation of the MDT?

(3) Are the size, the kind, and the location of the Balikatan deployment justified by the
nature, the scope, the duration, and the kind of "activities" allowed under the VFA?

(4) Is it true that the real American objective is the rescue of ASG hostages Martin and
Gracia Burnham, who are both American citizens? If so, is such rescue legally justified?

(5) Does the Balikatan pose a "political question " which the Supreme Court has no
authority to rule upon, and which may only be decided by our people directly or through
their I elected representatives?

Unfortunately, the foregoing and other similar nagging questions cannot be judicially taken up
and answered until a petition, sufficient in form and substance, is properly presented to the
appropriate court.

FOR THE FOREGOING REASONS, I vote to DISMISS the present Petition.

sgd. ARTEMIO V. PANGANIBAN


Associate Justice

G.R No. 187167 August 16, 2011


PROF. MERLIN M. MAGALLONA, AKBAYAN PARTY-LIST REP. RISA
HONTIVEROS, PROF. HARRY C. ROQUE, JR., AND UNIVERSITY OF THE
PHILIPPINES COLLEGE OF LAW STUDENTS, ALITHEA BARBARA ACAS,
VOLTAIRE ALFERES, CZARINA MAY ALTEZ, FRANCIS ALVIN ASILO, SHERYL
BALOT, RUBY AMOR BARRACA, JOSE JAVIER BAUTISTA, ROMINA BERNARDO,
VALERIE PAGASA BUENAVENTURA, EDAN MARRI CAETE, VANN ALLEN DELA
CRUZ, RENE DELORINO, PAULYN MAY DUMAN, SHARON ESCOTO, RODRIGO
FAJARDO III, GIRLIE FERRER, RAOULLE OSEN FERRER, CARLA REGINA
GREPO, ANNA MARIE CECILIA GO, IRISH KAY KALAW, MARY ANN JOY LEE,
MARIA LUISA MANALAYSAY, MIGUEL RAFAEL MUSNGI, MICHAEL OCAMPO,
JAKLYN HANNA PINEDA, WILLIAM RAGAMAT, MARICAR RAMOS, ENRIK FORT
REVILLAS, JAMES MARK TERRY RIDON, JOHANN FRANTZ RIVERA IV,
CHRISTIAN RIVERO, DIANNE MARIE ROA, NICHOLAS SANTIZO, MELISSA
CHRISTINA SANTOS, CRISTINE MAE TABING, VANESSA ANNE TORNO, MARIA
ESTER VANGUARDIA, and MARCELINO VELOSO III, Petitioners,
vs.
HON. EDUARDO ERMITA, IN HIS CAPACITY AS EXECUTIVE SECRETARY, HON.
ALBERTO ROMULO, IN HIS CAPACITY AS SECRETARY OF THE DEPARTMENT
OF FOREIGN AFFAIRS, HON. ROLANDO ANDAYA, IN HIS CAPACITY AS
SECRETARY OF THE DEPARTMENT OF BUDGET AND MANAGEMENT, HON.
DIONY VENTURA, IN HIS CAPACITY AS ADMINISTRATOR OF THE NATIONAL
MAPPING & RESOURCE INFORMATION AUTHORITY, and HON. HILARIO
DAVIDE, JR., IN HIS CAPACITY AS REPRESENTATIVE OF THE PERMANENT
MISSION OF THE REPUBLIC OF THE PHILIPPINES TO THE UNITED NATIONS,
Respondents.

DECISION

CARPIO, J.:

The Case

This original action for the writs of certiorari and prohibition assails the constitutionality of
Republic Act No. 95221 (RA 9522) adjusting the countrys archipelagic baselines and classifying
the baseline regime of nearby territories.

The Antecedents

In 1961, Congress passed Republic Act No. 3046 (RA 3046)2 demarcating the maritime baselines
of the Philippines as an archipelagic State.3 This law followed the framing of the Convention on
the Territorial Sea and the Contiguous Zone in 1958 (UNCLOS I),4 codifying, among others, the
sovereign right of States parties over their "territorial sea," the breadth of which, however, was
left undetermined. Attempts to fill this void during the second round of negotiations in Geneva in
1960 (UNCLOS II) proved futile. Thus, domestically, RA 3046 remained unchanged for nearly
five decades, save for legislation passed in 1968 (Republic Act No. 5446 [RA 5446]) correcting
typographical errors and reserving the drawing of baselines around Sabah in North Borneo.
In March 2009, Congress amended RA 3046 by enacting RA 9522, the statute now under
scrutiny. The change was prompted by the need to make RA 3046 compliant with the terms of
the United Nations Convention on the Law of the Sea (UNCLOS III),5 which the Philippines
ratified on 27 February 1984.6 Among others, UNCLOS III prescribes the water-land ratio,
length, and contour of baselines of archipelagic States like the Philippines7 and sets the deadline
for the filing of application for the extended continental shelf.8 Complying with these
requirements, RA 9522 shortened one baseline, optimized the location of some basepoints
around the Philippine archipelago and classified adjacent territories, namely, the Kalayaan Island
Group (KIG) and the Scarborough Shoal, as "regimes of islands" whose islands generate their
own applicable maritime zones.

Petitioners, professors of law, law students and a legislator, in their respective capacities as
"citizens, taxpayers or x x x legislators,"9 as the case may be, assail the constitutionality of RA
9522 on two principal grounds, namely: (1) RA 9522 reduces Philippine maritime territory, and
logically, the reach of the Philippine states sovereign power, in violation of Article 1 of the 1987
Constitution,10 embodying the terms of the Treaty of Paris11 and ancillary treaties,12 and (2) RA
9522 opens the countrys waters landward of the baselines to maritime passage by all vessels and
aircrafts, undermining Philippine sovereignty and national security, contravening the countrys
nuclear-free policy, and damaging marine resources, in violation of relevant constitutional
provisions.13

In addition, petitioners contend that RA 9522s treatment of the KIG as "regime of islands" not
only results in the loss of a large maritime area but also prejudices the livelihood of subsistence
fishermen.14 To buttress their argument of territorial diminution, petitioners facially attack RA
9522 for what it excluded and included its failure to reference either the Treaty of Paris or
Sabah and its use of UNCLOS IIIs framework of regime of islands to determine the maritime
zones of the KIG and the Scarborough Shoal.

Commenting on the petition, respondent officials raised threshold issues questioning (1) the
petitions compliance with the case or controversy requirement for judicial review grounded on
petitioners alleged lack of locus standi and (2) the propriety of the writs of certiorari and
prohibition to assail the constitutionality of RA 9522. On the merits, respondents defended RA
9522 as the countrys compliance with the terms of UNCLOS III, preserving Philippine territory
over the KIG or Scarborough Shoal. Respondents add that RA 9522 does not undermine the
countrys security, environment and economic interests or relinquish the Philippines claim over
Sabah.

Respondents also question the normative force, under international law, of petitioners assertion
that what Spain ceded to the United States under the Treaty of Paris were the islands and all the
waters found within the boundaries of the rectangular area drawn under the Treaty of Paris.

We left unacted petitioners prayer for an injunctive writ.

The Issues

The petition raises the following issues:


1. Preliminarily

1. Whether petitioners possess locus standi to bring this suit; and

2. Whether the writs of certiorari and prohibition are the proper remedies to assail
the constitutionality of RA 9522.

2. On the merits, whether RA 9522 is unconstitutional.

The Ruling of the Court

On the threshold issues, we hold that (1) petitioners possess locus standi to bring this suit as
citizens and (2) the writs of certiorari and prohibition are proper remedies to test the
constitutionality of RA 9522. On the merits, we find no basis to declare RA 9522
unconstitutional.

On the Threshold Issues


Petitioners Possess Locus
Standi as Citizens

Petitioners themselves undermine their assertion of locus standi as legislators and taxpayers
because the petition alleges neither infringement of legislative prerogative15 nor misuse of public
funds,16 occasioned by the passage and implementation of RA 9522. Nonetheless, we recognize
petitioners locus standi as citizens with constitutionally sufficient interest in the resolution of the
merits of the case which undoubtedly raises issues of national significance necessitating urgent
resolution. Indeed, owing to the peculiar nature of RA 9522, it is understandably difficult to find
other litigants possessing "a more direct and specific interest" to bring the suit, thus satisfying
one of the requirements for granting citizenship standing.17

The Writs of Certiorari and Prohibition


Are Proper Remedies to Test
the Constitutionality of Statutes

In praying for the dismissal of the petition on preliminary grounds, respondents seek a strict
observance of the offices of the writs of certiorari and prohibition, noting that the writs cannot
issue absent any showing of grave abuse of discretion in the exercise of judicial, quasi-judicial or
ministerial powers on the part of respondents and resulting prejudice on the part of petitioners.18

Respondents submission holds true in ordinary civil proceedings. When this Court exercises its
constitutional power of judicial review, however, we have, by tradition, viewed the writs of
certiorari and prohibition as proper remedial vehicles to test the constitutionality of statutes,19
and indeed, of acts of other branches of government.20 Issues of constitutional import are
sometimes crafted out of statutes which, while having no bearing on the personal interests of the
petitioners, carry such relevance in the life of this nation that the Court inevitably finds itself
constrained to take cognizance of the case and pass upon the issues raised, non-compliance with
the letter of procedural rules notwithstanding. The statute sought to be reviewed here is one such
law.

RA 9522 is Not Unconstitutional


RA 9522 is a Statutory Tool
to Demarcate the Countrys
Maritime Zones and Continental
Shelf Under UNCLOS III, not to
Delineate Philippine Territory

Petitioners submit that RA 9522 "dismembers a large portion of the national territory"21 because
it discards the pre-UNCLOS III demarcation of Philippine territory under the Treaty of Paris and
related treaties, successively encoded in the definition of national territory under the 1935, 1973
and 1987 Constitutions. Petitioners theorize that this constitutional definition trumps any treaty
or statutory provision denying the Philippines sovereign control over waters, beyond the
territorial sea recognized at the time of the Treaty of Paris, that Spain supposedly ceded to the
United States. Petitioners argue that from the Treaty of Paris technical description, Philippine
sovereignty over territorial waters extends hundreds of nautical miles around the Philippine
archipelago, embracing the rectangular area delineated in the Treaty of Paris.22

Petitioners theory fails to persuade us.

UNCLOS III has nothing to do with the acquisition (or loss) of territory. It is a multilateral treaty
regulating, among others, sea-use rights over maritime zones (i.e., the territorial waters [12
nautical miles from the baselines], contiguous zone [24 nautical miles from the baselines],
exclusive economic zone [200 nautical miles from the baselines]), and continental shelves that
UNCLOS III delimits.23 UNCLOS III was the culmination of decades-long negotiations among
United Nations members to codify norms regulating the conduct of States in the worlds oceans
and submarine areas, recognizing coastal and archipelagic States graduated authority over a
limited span of waters and submarine lands along their coasts.

On the other hand, baselines laws such as RA 9522 are enacted by UNCLOS III States parties to
mark-out specific basepoints along their coasts from which baselines are drawn, either straight or
contoured, to serve as geographic starting points to measure the breadth of the maritime zones
and continental shelf. Article 48 of UNCLOS III on archipelagic States like ours could not be
any clearer:

Article 48. Measurement of the breadth of the territorial sea, the contiguous zone, the exclusive
economic zone and the continental shelf. The breadth of the territorial sea, the contiguous zone,
the exclusive economic zone and the continental shelf shall be measured from archipelagic
baselines drawn in accordance with article 47. (Emphasis supplied)

Thus, baselines laws are nothing but statutory mechanisms for UNCLOS III States parties to
delimit with precision the extent of their maritime zones and continental shelves. In turn, this
gives notice to the rest of the international community of the scope of the maritime space and
submarine areas within which States parties exercise treaty-based rights, namely, the exercise of
sovereignty over territorial waters (Article 2), the jurisdiction to enforce customs, fiscal,
immigration, and sanitation laws in the contiguous zone (Article 33), and the right to exploit the
living and non-living resources in the exclusive economic zone (Article 56) and continental shelf
(Article 77).

Even under petitioners theory that the Philippine territory embraces the islands and all the
waters within the rectangular area delimited in the Treaty of Paris, the baselines of the
Philippines would still have to be drawn in accordance with RA 9522 because this is the only
way to draw the baselines in conformity with UNCLOS III. The baselines cannot be drawn from
the boundaries or other portions of the rectangular area delineated in the Treaty of Paris, but from
the "outermost islands and drying reefs of the archipelago."24

UNCLOS III and its ancillary baselines laws play no role in the acquisition, enlargement or, as
petitioners claim, diminution of territory. Under traditional international law typology, States
acquire (or conversely, lose) territory through occupation, accretion, cession and prescription,25
not by executing multilateral treaties on the regulations of sea-use rights or enacting statutes to
comply with the treatys terms to delimit maritime zones and continental shelves. Territorial
claims to land features are outside UNCLOS III, and are instead governed by the rules on general
international law.26

RA 9522s Use of the Framework


of Regime of Islands to Determine the
Maritime Zones of the KIG and the
Scarborough Shoal, not Inconsistent
with the Philippines Claim of Sovereignty
Over these Areas

Petitioners next submit that RA 9522s use of UNCLOS IIIs regime of islands framework to
draw the baselines, and to measure the breadth of the applicable maritime zones of the KIG,
"weakens our territorial claim" over that area.27 Petitioners add that the KIGs (and Scarborough
Shoals) exclusion from the Philippine archipelagic baselines results in the loss of "about 15,000
square nautical miles of territorial waters," prejudicing the livelihood of subsistence fishermen.28
A comparison of the configuration of the baselines drawn under RA 3046 and RA 9522 and the
extent of maritime space encompassed by each law, coupled with a reading of the text of RA
9522 and its congressional deliberations, vis--vis the Philippines obligations under UNCLOS
III, belie this view.1avvphi1

The configuration of the baselines drawn under RA 3046 and RA 9522 shows that RA 9522
merely followed the basepoints mapped by RA 3046, save for at least nine basepoints that RA
9522 skipped to optimize the location of basepoints and adjust the length of one baseline (and
thus comply with UNCLOS IIIs limitation on the maximum length of baselines). Under RA
3046, as under RA 9522, the KIG and the Scarborough Shoal lie outside of the baselines drawn
around the Philippine archipelago. This undeniable cartographic fact takes the wind out of
petitioners argument branding RA 9522 as a statutory renunciation of the Philippines claim over
the KIG, assuming that baselines are relevant for this purpose.
Petitioners assertion of loss of "about 15,000 square nautical miles of territorial waters" under
RA 9522 is similarly unfounded both in fact and law. On the contrary, RA 9522, by optimizing
the location of basepoints, increased the Philippines total maritime space (covering its internal
waters, territorial sea and exclusive economic zone) by 145,216 square nautical miles, as shown
in the table below:29

Extent of maritime
area using RA Extent of maritime
3046, as amended, area using RA
taking into account 9522, taking into
the Treaty of Paris account UNCLOS
delimitation (in III (in square
square nautical nautical miles)
miles)

Internal or
archipelagic
waters 166,858 171,435
Territorial Sea 274,136 32,106
Exclusive
Economic Zone 382,669
TOTAL 440,994 586,210

Thus, as the map below shows, the reach of the exclusive economic zone drawn under RA 9522
even extends way beyond the waters covered by the rectangular demarcation under the Treaty of
Paris. Of course, where there are overlapping exclusive economic zones of opposite or adjacent
States, there will have to be a delineation of maritime boundaries in accordance with UNCLOS
III.30
Further, petitioners argument that the KIG now lies outside Philippine territory because the
baselines that RA 9522 draws do not enclose the KIG is negated by RA 9522 itself. Section 2 of
the law commits to text the Philippines continued claim of sovereignty and jurisdiction over the
KIG and the Scarborough Shoal:

SEC. 2. The baselines in the following areas over which the Philippines likewise exercises
sovereignty and jurisdiction shall be determined as "Regime of Islands" under the Republic of
the Philippines consistent with Article 121 of the United Nations Convention on the Law of the
Sea (UNCLOS):

a) The Kalayaan Island Group as constituted under Presidential Decree No. 1596 and

b) Bajo de Masinloc, also known as Scarborough Shoal. (Emphasis supplied)


Had Congress in RA 9522 enclosed the KIG and the Scarborough Shoal as part of the Philippine
archipelago, adverse legal effects would have ensued. The Philippines would have committed a
breach of two provisions of UNCLOS III. First, Article 47 (3) of UNCLOS III requires that
"[t]he drawing of such baselines shall not depart to any appreciable extent from the general
configuration of the archipelago." Second, Article 47 (2) of UNCLOS III requires that "the
length of the baselines shall not exceed 100 nautical miles," save for three per cent (3%) of the
total number of baselines which can reach up to 125 nautical miles.31

Although the Philippines has consistently claimed sovereignty over the KIG32 and the
Scarborough Shoal for several decades, these outlying areas are located at an appreciable
distance from the nearest shoreline of the Philippine archipelago,33 such that any straight baseline
loped around them from the nearest basepoint will inevitably "depart to an appreciable extent
from the general configuration of the archipelago."

The principal sponsor of RA 9522 in the Senate, Senator Miriam Defensor-Santiago, took pains
to emphasize the foregoing during the Senate deliberations:

What we call the Kalayaan Island Group or what the rest of the world call[] the Spratlys and the
Scarborough Shoal are outside our archipelagic baseline because if we put them inside our
baselines we might be accused of violating the provision of international law which states: "The
drawing of such baseline shall not depart to any appreciable extent from the general
configuration of the archipelago." So sa loob ng ating baseline, dapat magkalapit ang mga
islands. Dahil malayo ang Scarborough Shoal, hindi natin masasabing malapit sila sa atin
although we are still allowed by international law to claim them as our own.

This is called contested islands outside our configuration. We see that our archipelago is defined
by the orange line which [we] call[] archipelagic baseline. Ngayon, tingnan ninyo ang maliit na
circle doon sa itaas, that is Scarborough Shoal, itong malaking circle sa ibaba, that is Kalayaan
Group or the Spratlys. Malayo na sila sa ating archipelago kaya kung ilihis pa natin ang dating
archipelagic baselines para lamang masama itong dalawang circles, hindi na sila magkalapit at
baka hindi na tatanggapin ng United Nations because of the rule that it should follow the
natural configuration of the archipelago.34 (Emphasis supplied)

Similarly, the length of one baseline that RA 3046 drew exceeded UNCLOS IIIs limits.1avvphi1
The need to shorten this baseline, and in addition, to optimize the location of basepoints using
current maps, became imperative as discussed by respondents:

[T]he amendment of the baselines law was necessary to enable the Philippines to draw the outer
limits of its maritime zones including the extended continental shelf in the manner provided by
Article 47 of [UNCLOS III]. As defined by R.A. 3046, as amended by R.A. 5446, the baselines
suffer from some technical deficiencies, to wit:

1. The length of the baseline across Moro Gulf (from Middle of 3 Rock Awash to
Tongquil Point) is 140.06 nautical miles x x x. This exceeds the maximum length allowed
under Article 47(2) of the [UNCLOS III], which states that "The length of such baselines
shall not exceed 100 nautical miles, except that up to 3 per cent of the total number of
baselines enclosing any archipelago may exceed that length, up to a maximum length of
125 nautical miles."

2. The selection of basepoints is not optimal. At least 9 basepoints can be skipped or


deleted from the baselines system. This will enclose an additional 2,195 nautical miles of
water.

3. Finally, the basepoints were drawn from maps existing in 1968, and not established by
geodetic survey methods. Accordingly, some of the points, particularly along the west
coasts of Luzon down to Palawan were later found to be located either inland or on water,
not on low-water line and drying reefs as prescribed by Article 47.35

Hence, far from surrendering the Philippines claim over the KIG and the Scarborough Shoal,
Congress decision to classify the KIG and the Scarborough Shoal as "Regime[s] of Islands
under the Republic of the Philippines consistent with Article 121"36 of UNCLOS III manifests
the Philippine States responsible observance of its pacta sunt servanda obligation under
UNCLOS III. Under Article 121 of UNCLOS III, any "naturally formed area of land, surrounded
by water, which is above water at high tide," such as portions of the KIG, qualifies under the
category of "regime of islands," whose islands generate their own applicable maritime zones.37

Statutory Claim Over Sabah under


RA 5446 Retained

Petitioners argument for the invalidity of RA 9522 for its failure to textualize the Philippines
claim over Sabah in North Borneo is also untenable. Section 2 of RA 5446, which RA 9522 did
not repeal, keeps open the door for drawing the baselines of Sabah:

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. (Emphasis supplied)

UNCLOS III and RA 9522 not


Incompatible with the Constitutions
Delineation of Internal Waters

As their final argument against the validity of RA 9522, petitioners contend that the law
unconstitutionally "converts" internal waters into archipelagic waters, hence subjecting these
waters to the right of innocent and sea lanes passage under UNCLOS III, including overflight.
Petitioners extrapolate that these passage rights indubitably expose Philippine internal waters to
nuclear and maritime pollution hazards, in violation of the Constitution.38

Whether referred to as Philippine "internal waters" under Article I of the Constitution39 or as


"archipelagic waters" under UNCLOS III (Article 49 [1]), the Philippines exercises sovereignty
over the body of water lying landward of the baselines, including the air space over it and the
submarine areas underneath. UNCLOS III affirms this:
Article 49. Legal status of archipelagic waters, of the air space over archipelagic waters and of
their bed and subsoil.

1. The sovereignty of an archipelagic State extends to the waters enclosed by the


archipelagic baselines drawn in accordance with article 47, described as archipelagic
waters, regardless of their depth or distance from the coast.

2. This sovereignty extends to the air space over the archipelagic waters, as well as
to their bed and subsoil, and the resources contained therein.

xxxx

4. The regime of archipelagic sea lanes passage established in this Part shall not in other
respects affect the status of the archipelagic waters, including the sea lanes, or the
exercise by the archipelagic State of its sovereignty over such waters and their air
space, bed and subsoil, and the resources contained therein. (Emphasis supplied)

The fact of sovereignty, however, does not preclude the operation of municipal and international
law norms subjecting the territorial sea or archipelagic waters to necessary, if not marginal,
burdens in the interest of maintaining unimpeded, expeditious international navigation,
consistent with the international law principle of freedom of navigation. Thus, domestically, the
political branches of the Philippine government, in the competent discharge of their
constitutional powers, may pass legislation designating routes within the archipelagic waters to
regulate innocent and sea lanes passage.40 Indeed, bills drawing nautical highways for sea lanes
passage are now pending in Congress.41

In the absence of municipal legislation, international law norms, now codified in UNCLOS III,
operate to grant innocent passage rights over the territorial sea or archipelagic waters, subject to
the treatys limitations and conditions for their exercise.42 Significantly, the right of innocent
passage is a customary international law,43 thus automatically incorporated in the corpus of
Philippine law.44 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.

The fact that for archipelagic States, their archipelagic waters are subject to both the right of
innocent passage and sea lanes passage45 does not place them in lesser footing vis--vis
continental coastal States which are subject, in their territorial sea, to the right of innocent
passage and the right of transit passage through international straits. The imposition of these
passage rights through archipelagic waters under UNCLOS III was a concession by archipelagic
States, in exchange for their right to claim all the waters landward of their baselines, regardless
of their depth or distance from the coast, as archipelagic waters subject to their territorial
sovereignty. More importantly, the recognition of archipelagic States archipelago and the waters
enclosed by their baselines as one cohesive entity prevents the treatment of their islands as
separate islands under UNCLOS III.46 Separate islands generate their own maritime zones,
placing the waters between islands separated by more than 24 nautical miles beyond the States
territorial sovereignty, subjecting these waters to the rights of other States under UNCLOS III.47
Petitioners invocation of non-executory constitutional provisions in Article II (Declaration of
Principles and State Policies)48 must also fail. Our present state of jurisprudence considers the
provisions in Article II as mere legislative guides, which, absent enabling legislation, "do not
embody judicially enforceable constitutional rights x x x."49 Article II provisions serve as guides
in formulating and interpreting implementing legislation, as well as in interpreting executory
provisions of the Constitution. Although Oposa v. Factoran50 treated the right to a healthful and
balanced ecology under Section 16 of Article II as an exception, the present petition lacks factual
basis to substantiate the claimed constitutional violation. The other provisions petitioners cite,
relating to the protection of marine wealth (Article XII, Section 2, paragraph 251 ) and
subsistence fishermen (Article XIII, Section 752 ), are not violated by RA 9522.

In fact, the demarcation of the baselines enables the Philippines to delimit its exclusive economic
zone, reserving solely to the Philippines the exploitation of all living and non-living resources
within such zone. Such a maritime delineation binds the international community since the
delineation is in strict observance of UNCLOS III. If the maritime delineation is contrary to
UNCLOS III, the international community will of course reject it and will refuse to be bound by
it.

UNCLOS III favors States with a long coastline like the Philippines. UNCLOS III creates a sui
generis maritime space the exclusive economic zone in waters previously part of the high
seas. UNCLOS III grants new rights to coastal States to exclusively exploit the resources found
within this zone up to 200 nautical miles.53 UNCLOS III, however, preserves the traditional
freedom of navigation of other States that attached to this zone beyond the territorial sea before
UNCLOS III.

RA 9522 and the Philippines Maritime Zones

Petitioners hold the view that, based on the permissive text of UNCLOS III, Congress was not
bound to pass RA 9522.54 We have looked at the relevant provision of UNCLOS III55 and we find
petitioners reading plausible. Nevertheless, the prerogative of choosing this option belongs to
Congress, not to this Court. Moreover, the luxury of choosing this option comes at a very steep
price. Absent an UNCLOS III compliant baselines law, an archipelagic State like the Philippines
will find itself devoid of internationally acceptable baselines from where the breadth of its
maritime zones and continental shelf is measured. This is recipe for a two-fronted disaster: first,
it sends an open invitation to the seafaring powers to freely enter and exploit the resources in the
waters and submarine areas around our archipelago; and second, it weakens the countrys case in
any international dispute over Philippine maritime space. These are consequences Congress
wisely avoided.

The enactment of UNCLOS III compliant baselines law for the Philippine archipelago and
adjacent areas, as embodied in RA 9522, allows an internationally-recognized delimitation of the
breadth of the Philippines maritime zones and continental shelf. RA 9522 is therefore a most
vital step on the part of the Philippines in safeguarding its maritime zones, consistent with the
Constitution and our national interest.

WHEREFORE, we DISMISS the petition.


SO ORDERED.

CONCURRING OPINION

VELASCO, JR., J.:

I concur with the ponencia and add the following complementary arguments and observations:

A statute is a product of hard work and earnest studies of Congress to ensure that no
constitutional provision, prescription or concept is infringed. Withal, before a law, in an
appropriate proceeding, is nullified, an unequivocal breach of, or a clear conflict with, the
Constitution must be demonstrated in such a way as to leave no doubt in the mind of the Court.1
In the same token, if a law runs directly afoul of the Constitution, the Courts duty on the matter
should be clear and simple: Pursuant to its judicial power and as final arbiter of all legal
questions,2 it should strike such law down, however laudable its purpose/s might be and
regardless of the deleterious effect such action may carry in its wake.

Challenged in these proceedings is the constitutionality of Republic Act (RA 9522) entitled "An
Act to Amend Certain Provisions of [RA] 3046, as Amended by [RA] 5446 to Define the
Archipelagic Baselines Of The Philippines and for Other Purposes." For perspective, RA 3046,
"An Act to Define the Baselines of the Territorial Sea of the Philippines, was enacted in 1961 to
comply with the United Nations Convention on the Law of the Sea (UNCLOS) I. Eight years
later, RA 5446 was enacted to amend typographical errors relating to coordinates in RA 3046.
The latter law also added a provision asserting Philippine sovereignty over Sabah.

As its title suggests, RA 9522 delineates archipelagic baselines of the country, amending in the
process the old baselines law, RA 3046. Everybody is agreed that RA 9522 was enacted in
response to the countrys commitment to conform to some 1982 Law of the Sea Convention
(LOSC) or UNCLOS III provisions to define new archipelagic baselines through legislation, the
Philippines having signed3 and eventually ratified4 this multilateral treaty. The Court can take
judicial notice that RA 9522 was registered and deposited with the UN on April 4, 2009.

As indicated in its Preamble,5 1982 LOSC aims, among other things, to establish, with due
regard for the sovereignty of all States, "a legal order for the seas and oceans which will facilitate
international communication, and will promote the peaceful uses of the seas and oceans." One of
the measures to attain the order adverted to is to have a rule on baselines. Of particular relevance
to the Philippines, as an archipelagic state, is Article 47 of UNCLOS III which deals with
baselines:

1. An archipelagic State may draw straight archipelagic baselines joining the outermost
points of the outermost islands and drying reefs of the archipelago provided that within
such baselines are included the main islands and an area in which the ratio of the area of
the water to the area of the land, including atolls, is between 1 to 1 and 9 to 1.

2. The length of such baseline shall not exceed 100 nautical miles, except that up to 3 per
cent of the total number of baselines enclosing any archipelago may exceed that length,
up to a maximum length of 125 nautical miles.

3. The drawing of such baselines shall not depart to any appreciable extent from the
general configuration of the archipelago.

xxxx

9. The archipelagic State shall give due publicity to such charts or lists of geographical
co-ordinates and shall deposit a copy of each such chart or list with the Secretary-General
of the United Nations.6 (Emphasis added.)

To obviate, however, the possibility that certain UNCLOS III baseline provisions would, in their
implementation, undermine its sovereign and/or jurisdictional interests over what it considers its
territory,7 the Philippines, when it signed UNCLOS III on December 10, 1982, made the
following "Declaration" to said treaty:

The Government of the Republic of the Philippines [GRP] hereby manifests that in signing the
1982 United Nations Convention on the Law of the Sea, it does so with the understandings
embodied in this declaration, made under the provisions of Article 310 of the Convention, to wit:

The signing of the Convention by the [GRP] shall not in any manner impair or prejudice the
sovereign rights of the [RP] under and arising from the Constitution of the Philippines;

Such signing shall not in any manner affect the sovereign rights of the [RP] as successor of the
United States of America [USA], under and arising out of the Treaty of Paris between Spain and
the United States of America of December 10, 1898, and the Treaty of Washington between the
[USA] and Great Britain of January 2, 1930;

xxxx

Such signing shall not in any manner impair or prejudice the sovereignty of the [RP] over any
territory over which it exercises sovereign authority, such as the Kalayaan Islands, and the waters
appurtenant thereto;

The Convention shall not be construed as amending in any manner any pertinent laws and
Presidential Decrees or Proclamations of the Republic of the Philippines. The [GRP] maintains
and reserves the right and authority to make any amendments to such laws, decrees or
proclamations pursuant to the provisions of the Philippine Constitution;

The provisions of the Convention on archipelagic passage through sea lanes do not nullify or
impair the sovereignty of the Philippines as an archipelagic state over the sea lanes and do not
deprive it of authority to enact legislation to protect its sovereignty independence and security;

The concept of archipelagic waters is similar to the concept of internal waters under the
Constitution of the Philippines, and removes straits connecting these waters with the economic
zone or high sea from the rights of foreign vessels to transit passage for international navigation.8
(Emphasis added.)

Petitioners challenge the constitutionality of RA 9522 on the principal ground that the law
violates Section 1, Article I of the 1987 Constitution on national territory which states:

Section 1. The national territory comprises the Philippine archipelago, with all the islands and
waters embraced therein, and all other territories over which the Philippines has sovereignty or
jurisdiction, consisting of its terrestrial, fluvial and aerial domains, including its territorial sea,
the seabed, the subsoil, the insular shelves, and other submarine areas. The waters around,
between, and connecting the islands of the archipelago, regardless of their breadth and
dimensions, form part of the internal waters of the Philippines. (Emphasis supplied.)

According to Fr. Joaquin Bernas, S.J., himself a member of the 1986 Constitutional Commission
which drafted the 1987 Constitution, the aforequoted Section 1 on national territory was "in
substance a copy of its 1973 counterpart."9 Art. I of the 1973 Constitution reads:

Section 1. The national territory comprises the Philippine archipelago, with all the islands and
waters embraced therein, and all other territories belonging to the Philippines by historic right or
legal title, including the territorial sea, the air space, the subsoil, the insular shelves, and other
submarine areas over which the Philippines has sovereignty or jurisdiction. The waters around,
between, and connecting the islands of the archipelago, regardless of their breadth and
dimensions, form part of the internal waters of the Philippines. (Emphasis added.)

As may be noted both constitutions speak of the "Philippine archipelago," and, via the last
sentence of their respective provisions, assert the countrys adherence to the "archipelagic
principle." Both constitutions divide the national territory into two main groups: (1) the
Philippine archipelago and (2) other territories belonging to the Philippines. So what or where is
Philippine archipelago contemplated in the 1973 and 1987 Constitutions then? Fr. Bernas
answers the poser in the following wise:
Article I of the 1987 Constitution cannot be fully understood without reference to Article I of the
1973 Constitution. x x x

xxxx

x x x To understand [the meaning of national territory as comprising the Philippine archipelago],


one must look into the evolution of [Art. I of the 1973 Constitution] from its first draft to its final
form.

Section 1 of the first draft submitted by the Committee on National Territory almost literally
reproduced Article I of the 1935 Constitution x x x. Unlike the 1935 version, however, the draft
designated the Philippines not simply as the Philippines but as "the Philippine archipelago.10 In
response to the criticism that the definition was colonial in tone x x x, the second draft further
designated the Philippine archipelago, as the historic home of the Filipino people from its
beginning.11

After debates x x x, the Committee reported out a final draft, which became the initially
approved version: "The national territory consists of the Philippine archipelago which is the
ancestral home of the Filipino people and which is composed of all the islands and waters
embraced therein"

What was the intent behind the designation of the Philippines as an "archipelago"? x x x Asked
by Delegate Roselller Lim (Zamboanga) where this archipelago was, Committee Chairman
Quintero answered that it was the area delineated in the Treaty of Paris. He said that objections to
the colonial implication of mentioning the Treaty of Paris was responsible for the omission of the
express mention of the Treaty of Paris.

Report No. 01 of the Committee on National Territory had in fact been explicit in its delineation
of the expanse of this archipelago. It said:

Now if we plot on a map the boundaries of this archipelago as set forth in the Treaty of Paris, a
huge or giant rectangle will emerge, measuring about 600 miles in width and 1,200 miles in
length. Inside this giant rectangle are the 7,100 islands comprising the Philippine Islands. From
the east coast of Luzon to the eastern boundary of this huge rectangle in the Pacific Ocean, there
is a distance of over 300 miles. From the west coast of Luzon to the western boundary of this
giant rectangle in the China sea, there is a distance of over 150 miles.

When the [US] Government enacted the Jones Law, the Hare-Hawes Cutting Law and the
Tydings McDuffie Law, it in reality announced to the whole world that it was turning over to the
Government of the Philippine Islands an archipelago (that is a big body of water studded with
islands), the boundaries of which archipelago are set forth in Article III of the Treaty of Paris. It
also announced to the whole world that the waters inside the giant rectangle belong to the
Philippines that they are not part of the high seas.

When Spain signed the Treaty of Paris, in effect she announced to the whole world that she was
ceding to the [US] the Philippine archipelago x x x, that this archipelago was bounded by lines
specified in the treaty, and that the archipelago consisted of the huge body of water inside the
boundaries and the islands inside said boundaries.

The delineation of the extent of the Philippine archipelago must be understood in the context of
the modifications made both by the Treaty of Washington of November 7, 1900, and of the
Convention of January 12, 1930, in order to include the Islands of Sibutu and of Cagayan de
Sulu and the Turtle and Mangsee Islands. However, x x x the definition of the archipelago did
not include the Batanes group[, being] outside the boundaries of the Philippine archipelago as set
forth in the Treaty of Paris. In literal terms, therefore, the Batanes islands would come not under
the Philippine archipelago but under the phrase "all other territories belong to the Philippines."12
x x x (Emphasis added.)

From the foregoing discussions on the deliberations of the provisions on national territory, the
following conclusion is abundantly evident: the "Philippine archipelago" of the 1987
Constitution is the same "Philippine archipelago" referred to in Art. I of the 1973 Constitution
which in turn corresponds to the territory defined and described in Art. 1 of the 1935
Constitution,13 which pertinently reads:

Section 1. The Philippines comprises all the territory ceded to the [US] by the Treaty of Paris
concluded between the [US] and Spain on the tenth day of December, [1898], the limits of which
are set forth in Article III of said treaty, together with all the islands in the treaty concluded at
Washington, between the [US] and Spain on November [7, 1900] and the treaty concluded
between the [US] and Great Britain x x x.

While the Treaty of Paris is not mentioned in both the 1973 and 1987 Constitutions, its mention,
so the nationalistic arguments went, being "a repulsive reminder of the indignity of our colonial
past,"14 it is at once clear that the Treaty of Paris had been utilized as key reference point in the
definition of the national territory.

On the other hand, the phrase "all other territories over which the Philippines has sovereignty or
jurisdiction," found in the 1987 Constitution, which replaced the deleted phrase "all territories
belonging to the Philippines by historic right or legal title"15 found in the 1973 Constitution,
covers areas linked to the Philippines with varying degrees of certainty.16 Under this category
would fall: (a) Batanes, which then 1971 Convention Delegate Eduardo Quintero, Chairperson of
the Committee on National Territory, described as belonging to the Philippines in all its history; 17
(b) Sabah, over which a formal claim had been filed, the so-called Freedomland (a group of
islands known as Spratleys); and (c) any other territory, over which the Philippines had filed a
claim or might acquire in the future through recognized modes of acquiring territory.18 As an
author puts it, the deletion of the words "by historic right or legal title" is not to be interpreted as
precluding future claims to areas over which the Philippines does not actually exercise
sovereignty.19

Upon the foregoing perspective and going into specifics, petitioners would have RA 9522
stricken down as unconstitutional for the reasons that it deprives the Philippines of what has long
been established as part and parcel of its national territory under the Treaty of Paris, as
supplemented by the aforementioned 1900 Treaty of Washington or, to the same effect, revises
the definition on or dismembers the national territory. Pushing their case, petitioners argue that
the constitutional definition of the national territory cannot be remade by a mere statutory act.20
As another point, petitioners parlay the theory that the law in question virtually weakens the
countrys territorial claim over the Kalayaan Island Group (KIG) and Sabah, both of which come
under the category of "other territories" over the Philippines has sovereignty or jurisdiction.
Petitioners would also assail the law on grounds related to territorial sea lanes and internal waters
transit passage by foreign vessels.

It is remarkable that petitioners could seriously argue that RA 9522 revises the Philippine
territory as defined in the Constitution, or worse, constitutes an abdication of territory.

It cannot be over-emphasized enough that RA 9522 is a baseline law enacted to implement the
1982 LOSC, which in turn seeks to regulate and establish an orderly sea use rights over maritime
zones. Or as the ponencia aptly states, RA 9522 aims to mark-out specific base points along the
Philippine coast from which baselines are drawn to serve as starting points to measure the
breadth of the territorial sea and maritime zones.21 The baselines are set to define the sea limits of
a state, be it coastal or archipelagic, under the UNCLOS III regime. By setting the baselines to
conform to the prescriptions of UNCLOS III, RA 9522 did not surrender any territory, as
petitioners would insist at every turn, for UNCLOS III is concerned with setting order in the
exercise of sea-use rights, not the acquisition or cession of territory. And let it be noted that under
UNCLOS III, it is recognized that countries can have territories outside their baselines. Far from
having a dismembering effect, then, RA 9522 has in a limited but real sense increased the
countrys maritime boundaries. How this situation comes about was extensively explained by
then Minister of State and head of the Philippine delegation to UNCLOS III Arturo Tolentino in
his sponsorship speech22 on the concurrence of the Batasang Pambansa with the LOSC:

xxxx

Then, we should consider, Mr. Speaker, that under the archipelagic principle, the whole area
inside the archipelagic base lines become a unified whole and the waters between the islands
which formerly were regarded by international law as open or international seas now become
waters under the complete sovereignty of the Filipino people. In this light there would be an
additional area of 141,800 square nautical miles inside the base lines that will be recognized by
international law as Philippine waters, equivalent to 45,351,050 hectares. These gains in the
waters of the sea, 45,211,225 hectares outside the base lines and 141,531,000 hectares inside the
base lines, total 93,742,275 hectares as a total gain in the waters under Philippine jurisdiction.

From a pragmatic standpoint, therefore, the advantage to our country and people not only in
terms of the legal unification of land and waters of the archipelago in the light of international
law, but also in terms of the vast resources that will come under the dominion and jurisdiction of
the Republic of the Philippines, your Committee on Foreign Affairs does not hesitate to ask this
august Body to concur in the Convention by approving the resolution before us today.

May I say it was the unanimous view of delegations at the Conference on the Law of the Sea that
archipelagos are among the biggest gainers or beneficiaries under the Convention on the Law of
the Sea.

Lest it be overlooked, the constitutional provision on national territory, as couched, is broad


enough to encompass RA 9522s definition of the archipelagic baselines. To reiterate, the laying
down of baselines is not a mode of acquiring or asserting ownership a territory over which a state
exercises sovereignty. They are drawn for the purpose of defining or establishing the maritime
areas over which a state can exercise sovereign rights. Baselines are used for fixing starting point
from which the territorial belt is measured seawards or from which the adjacent maritime waters
are measured. Thus, the territorial sea, a marginal belt of maritime waters, is measured from the
baselines extending twelve (12) nautical miles outward.23 Similarly, Art. 57 of the 1982 LOSC
provides that the Exclusive Economic Zone (EEZ) "shall not extend beyond 200 nautical miles
from the baselines from which the breadth of the territorial sea is measured."24 Most important to
note is that the baselines indicated under RA 9522 are derived from Art. 47 of the 1982 LOSC
which was earlier quoted.

Since the 1987 Constitutions definition of national territory does not delimit where the
Philippines baselines are located, it is up to the political branches of the government to supply
the deficiency. Through Congress, the Philippines has taken an official position regarding its
baselines to the international community through RA 3046,25 as amended by RA 544626 and RA
9522. When the Philippines deposited a copy of RA 9522 with the UN Secretary General, we
effectively complied in good faith with our obligation under the 1982 LOSC. A declaration by
the Court of the constitutionality of the law will complete the bona fides of the Philippines vis-a-
vis the law of the sea treaty.

It may be that baseline provisions of UNCLOS III, if strictly implemented, may have an
imposing impact on the signatory states jurisdiction and even their sovereignty. But this
actuality, without more, can hardly provide a justifying dimension to nullify the complying RA
9522. As held by the Court in Bayan Muna v. Romulo,27 treaties and international agreements
have a limiting effect on the otherwise encompassing and absolute nature of sovereignty. By their
voluntary acts, states may decide to surrender or waive some aspects of their sovereignty. The
usual underlying consideration in this partial surrender may be the greater benefits derived from
a pact or reciprocal undertaking. On the premise that the Philippines has adopted the generally
accepted principles of international law as part of the law of the land, a portion of sovereignty
may be waived without violating the Constitution.

As a signatory of the 1982 LOSC, it behooves the Philippines to honor its obligations thereunder.
Pacta sunt servanda, a basic international law postulate that "every treaty in force is binding upon
the parties to it and must be performed by them in good faith."28 The exacting imperative of this
principle is such that a state may not invoke provisions in its constitution or its laws as an excuse
for failure to perform this duty."29

The allegation that Sabah has been surrendered by virtue of RA 9522, which supposedly repealed
the hereunder provision of RA 5446, is likewise unfounded.

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.

There is nothing in RA 9522 indicating a clear intention to supersede Sec. 2 of RA 5446.


Petitioners obviously have read too much into RA 9522s amendment on the baselines found in
an older law. Aside from setting the countrys baselines, RA 9522 is, in its Sec. 3, quite explicit
in its reiteration of the Philippines exercise of sovereignty, thus:

Section 3. This Act affirms that the Republic of the Philippines has dominion, sovereignty and
jurisdiction over all portions of the national territory as defined in the Constitution and by
provisions of applicable laws including, without limitation, Republic Act No. 7160, otherwise
known as the Local Government Code of 1991, as amended.

To emphasize, baselines are used to measure the breadth of the territorial sea, the contiguous
zone, the exclusive economic zone and the continental shelf. Having KIG and the Scarborough
Shoal outside Philippine baselines will not diminish our sovereignty over these areas. Art. 46 of
UNCLOS III in fact recognizes that an archipelagic state, such as the Philippines, is a state
"constituted wholly by one or more archipelagos and may include other islands." (emphasis
supplied) The "other islands" referred to in Art. 46 are doubtless islands not forming part of the
archipelago but are nevertheless part of the states territory.
The Philippines sovereignty over KIG and Scarborough Shoal are, thus, in no way diminished.
Consider: Other countries such as Malaysia and the United States have territories that are located
outside its baselines, yet there is no territorial question arising from this arrangement. 30

It may well be apropos to point out that the Senate version of the baseline bill that would become
RA 9522 contained the following explanatory note: The law "reiterates our sovereignty over the
Kalayaan Group of Islands declared as part of the Philippine territory under Presidential Decree
No. 1596. As part of the Philippine territory, they shall be considered as a regime of islands
under Article 121 of the Convention."31 Thus, instead of being in the nature of a "treasonous
surrender" that petitioners have described it to be, RA 9522 even harmonizes our baseline laws
with our international agreements, without limiting our territory to those confined within the
countrys baselines.

Contrary to petitioners contention, the classification of KIG and the Scarborough Shoal as
falling under the Philippines regime of islands is not constitutionally objectionable. Such a
classification serves as compliance with LOSC and the Philippines assertion of sovereignty over
KIG and Scarborough Shoal. In setting the baseline in KIG and Scarborough Shoal, RA 9522
states that these are areas "over which the Philippines likewise exercises sovereignty and
jurisdiction." It is, thus, not correct for petitioners to claim that the Philippines has lost 15,000
square nautical miles of territorial waters upon making this classification. Having 15,000 square
nautical miles of Philippine waters outside of our baselines, to reiterate, does not translate to a
surrender of these waters. The Philippines maintains its assertion of ownership over territories
outside of its baselines. Even China views RA 9522 as an assertion of ownership, as seen in its
Protest32 filed with the UN Secretary-General upon the deposit of RA 9522.

We take judicial notice of the effective occupation of KIG by the Philippines. Petitioners even
point out that national and local elections are regularly held there. The classification of KIG as
under a "regime of islands" does not in any manner affect the Philippines consistent position
with regard to sovereignty over KIG. It does not affect the Philippines other acts of ownership
such as occupation or amend Presidential Decree No. 1596, which declared KIG as a
municipality of Palawan.

The fact that the baselines of KIG and Scarborough Shoal have yet to be defined would not
detract to the constitutionality of the law in question. The resolution of the problem lies with the
political departments of the government.

All told, the concerns raised by the petitioners about the diminution or the virtual
dismemberment of the Philippine territory by the enactment of RA 9522 are, to me, not well
grounded. To repeat, UNCLOS III pertains to a law on the seas, not territory. As part of its
Preamble,33 LOSC recognizes "the desirability of establishing through this Convention, with due
regard for the sovereignty of all States, a legal order for the seas and oceans x x x."
This brings me to the matter of transit passage of foreign vessels through Philippine waters.

Apropos thereto, petitioners allege that RA 9522 violates the nuclear weapons-free policy under
Sec. 8, in relation to Sec. 16, Art. II of the Constitution, and exposes the Philippines to marine
pollution hazards, since under the LOSC the Philippines supposedly must give to ships of all
states the right of innocent passage and the right of archipelagic sea-lane passage.

The adverted Sec. 8, Art. II of the 1987 Constitution declares the adoption and pursuit by the
Philippines of "a policy of freedom from nuclear weapons in its territory." On the other hand, the
succeeding Sec. l6 underscores the States firm commitment "to protect and advance the right of
the people to a balanced and healthful ecology in accord with the rhythm and harmony of
nature." Following the allegations of petitioners, these twin provisions will supposedly be
violated inasmuch as RA 9522 accedes to the right of innocent passage and the right of
archipelagic sea-lane passage provided under the LOSC. Therefore, ships of all nationsbe they
nuclear-carrying warships or neutral commercial vessels transporting goodscan assert the right
to traverse the waters within our islands.

A cursory reading of RA 9522 would belie petitioners posture. In context, RA 9522 simply seeks
to conform to our international agreement on the setting of baselines and provides nothing about
the designation of archipelagic sea-lane passage or the regulation of innocent passage within our
waters. Again, petitioners have read into the amendatory RA 9522 something not intended.

Indeed, the 1982 LOSC enumerates the rights and obligations of archipelagic party-states in
terms of transit under Arts. 51 to 53, which are explained below:

To safeguard, in explicit terms, the general balance struck by [Articles 51 and 52] between the
need for passage through the area (other than straits used for international navigation) and the
archipelagic states need for security, Article 53 gave the archipelagic state the right to regulate
where and how ships and aircraft pass through its territory by designating specific sea lanes.
Rights of passage through these archipelagic sea lanes are regarded as those of transit passage:

(1) An archipelagic State may designate sea lanes and air routes thereabove, suitable for
safe, continuous and expeditious passage of foreign ships and aircraft through or over its
archipelagic waters and the adjacent territorial sea.

(2) All ships and aircraft enjoy the right of archipelagic sea lanes passage in such sea
lanes and air routes.

(3) Archipelagic sea lanes passage is the exercise in accordance with the present
Convention of the rights of navigation and overflight in the normal mode solely for the
purpose of continuous, expeditious and unobstructed transit between one part of the high
seas or an exclusive economic zone and another part of the high seas or an exclusive
economic zone.34

But owing to the geographic structure and physical features of the country, i.e., where it is
"essentially a body of water studded with islands, rather than islands with water around them,"35
the Philippines has consistently maintained the conceptual unity of land and water as a necessary
element for territorial integrity,36 national security (which may be compromised by the presence
of warships and surveillance ships on waters between the islands),37 and the preservation of its
maritime resources. As succinctly explained by Minister Arturo Tolentino, the essence of the
archipelagic concept is "the dominion and sovereignty of the archipelagic State within its
baselines, which were so drawn as to preserve the territorial integrity of the archipelago by the
inseparable unity of the land and water domain."38 Indonesia, like the Philippines, in terms of
geographic reality, has expressed agreement with this interpretation of the archipelagic concept.
So it was that in 1957, the Indonesian Government issued the Djuanda Declaration, therein
stating :

[H]istorically, the Indonesian archipelago has been an entity since time immemorial.1avvphi1 In
view of the territorial entirety and of preserving the wealth of the Indonesian state, it is deemed
necessary to consider all waters between the islands and entire entity.

x x x On the ground of the above considerations, the Government states that all waters
around, between and connecting, the islands or parts of islands belonging to the
Indonesian archipelago irrespective of their width or dimension are natural appurtenances
of its land territory and therefore an integral part of the inland or national waters subject
to the absolute sovereignty of Indonesia.39 (Emphasis supplied.)

Hence, the Philippines maintains the sui generis character of our archipelagic waters as
equivalent to the internal waters of continental coastal states. In other words, the
landward waters embraced within the baselines determined by RA 9522, i.e., all waters
around, between, and connecting the islands of the archipelago, regardless of their
breadth and dimensions, form part of the internal waters of the Philippines.40 Accordingly,
such waters are not covered by the jurisdiction of the LOSC and cannot be subjected to
the rights granted to foreign states in archipelagic waters, e.g., the right of innocent
passage,41 which is allowed only in the territorial seas, or that area of the ocean
comprising 12 miles from the baselines of our archipelago; archipelagic sea-lane
passage;42 over flight;43 and traditional fishing rights.44

Our position that all waters within our baselines are internal waters, which are outside the
jurisdiction of the 1982 LOSC,45 was abundantly made clear by the Philippine
Declaration at the time of the signing of the LOSC on December 10, 1982. To reiterate,
paragraphs 5, 6 and 7 of the Declaration state:
5. The Convention shall not be construed as amending in any manner any pertinent laws
and Presidential decrees of Proclamation of the republic of the Philippines; the
Government x x x maintains and reserves the right and authority to make any
amendments to such laws, decrees or proclamations pursuant to the provisions of the
Philippine Constitution;

6. The provisions of the Convention on archipelagic passage through sea lanes do not
nullify or impair the sovereignty of the Philippines as an archipelagic State over the sea
lanes and do not deprive it of authority to enact legislation to protect its sovereignty,
independence and security;

7. The concept of archipelagic waters is similar to the concept of internal waters under
the Constitution of the Philippines and removes straits connecting this water with the
economic zone or high seas from the rights of foreign vessels to transit passage for
international navigation. (Emphasis supplied.)46

More importantly, by the ratification of the 1987 Constitution on February 2, 1987, the integrity
of the Philippine state as comprising both water and land was strengthened by the proviso in its
first article, viz: "The waters around, between, and connecting the islands of the [Philippine]
archipelago, regardless of their breadth and dimensions, form part of the internal waters of the
Philippines. (emphasis supplied)

In effect, contrary to petitioners allegations, the Philippines ratification of the 1982 LOSC did
not matter-of-factly open our internal waters to passage by foreign ships, either in the concept of
innocent passage or archipelagic sea-lane passage, in exchange for the international communitys
recognition of the Philippines as an archipelagic state. The Filipino people, by ratifying the 1987
Constitution, veritably rejected the quid pro quo petitioners take as being subsumed in that treaty.

Harmonized with the Declaration and the Constitution, the designation of baselines made in RA
9522 likewise designates our internal waters, through which passage by foreign ships is not a
right, but may be granted by the Philippines to foreign states but only as a dissolvable privilege.

In view of the foregoing, I vote to DISMISS the Petition.

PRESBITERO J. VELASCO, JR.


Associate Justice

G.R. No. 183591 October 14, 2008

THE PROVINCE OF NORTH COTABATO, duly represented by GOVERNOR JESUS


SACDALAN and/or VICE-GOVERNOR EMMANUEL PIOL, for and in his own behalf,
petitioners,
vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON
ANCESTRAL DOMAIN (GRP), represented by SEC. RODOLFO GARCIA, ATTY. LEAH
ARMAMENTO, ATTY. SEDFREY CANDELARIA, MARK RYAN SULLIVAN and/or
GEN. HERMOGENES ESPERON, JR., the latter in his capacity as the present and duly-
appointed Presidential Adviser on the Peace Process (OPAPP) or the so-called Office of the
Presidential Adviser on the Peace Process, respondents.

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.1

The signing of the MOA-AD between the GRP and the MILF was not to materialize, however,
for upon motion of petitioners, specifically those who filed their cases before the scheduled
signing of the MOA-AD, this Court issued a Temporary Restraining Order enjoining the GRP
from signing the same.

The MOA-AD was preceded by a long process of negotiation and the concluding of several prior
agreements between the two parties beginning in 1996, when the GRP-MILF peace negotiations
began. On July 18, 1997, the GRP and MILF Peace Panels signed the Agreement on General
Cessation of Hostilities. The following year, they signed the General Framework of Agreement
of Intent on August 27, 1998.

The Solicitor General, who represents respondents, summarizes the MOA-AD by stating that the
same contained, among others, the commitment of the parties to pursue peace negotiations,
protect and respect human rights, negotiate with sincerity in the resolution and pacific settlement
of the conflict, and refrain from the use of threat or force to attain undue advantage while the
peace negotiations on the substantive agenda are on-going.2

Early on, however, it was evident that there was not going to be any smooth sailing in the GRP-
MILF peace process. Towards the end of 1999 up to early 2000, the MILF attacked a number of
municipalities in Central Mindanao and, in March 2000, it took control of the town hall of
Kauswagan, Lanao del Norte.3 In response, then President Joseph Estrada declared and carried
out an "all-out-war" against the MILF.

When President Gloria Macapagal-Arroyo assumed office, the military offensive against the
MILF was suspended and the government sought a resumption of the peace talks. The MILF,
according to a leading MILF member, initially responded with deep reservation, but when
President Arroyo asked the Government of Malaysia through Prime Minister Mahathir
Mohammad to help convince the MILF to return to the negotiating table, the MILF convened its
Central Committee to seriously discuss the matter and, eventually, decided to meet with the
GRP.4

The parties met in Kuala Lumpur on March 24, 2001, with the talks being facilitated by the
Malaysian government, the parties signing on the same date the Agreement on the General
Framework for the Resumption of Peace Talks Between the GRP and the MILF. The MILF
thereafter suspended all its military actions.5
Formal peace talks between the parties were held in Tripoli, Libya from June 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.6

In 2005, several exploratory talks were held between the parties in Kuala Lumpur, eventually
leading to the crafting of the draft MOA-AD in its final form, which, as mentioned, was set to be
signed last August 5, 2008.

II. STATEMENT OF THE PROCEEDINGS

Before the Court is what is perhaps the most contentious "consensus" ever embodied in an
instrument - the MOA-AD which is assailed principally by the present petitions bearing docket
numbers 183591, 183752, 183893, 183951 and 183962.

Commonly impleaded as respondents are the GRP Peace Panel on Ancestral 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 Piol filed a
petition, docketed as G.R. No. 183591, for Mandamus and Prohibition with Prayer for the
Issuance of Writ of Preliminary Injunction and Temporary Restraining Order.9 Invoking the right
to information on matters of public concern, petitioners seek to compel respondents to disclose
and furnish them the complete and official copies of the MOA-AD including its attachments, and
to prohibit the slated signing of the MOA-AD, pending the disclosure of the contents of the
MOA-AD and the holding of a public consultation thereon. Supplementarily, petitioners pray
that the MOA-AD be declared unconstitutional.10

This initial petition was followed by another one, docketed as G.R. No. 183752, also for
Mandamus and Prohibition11 filed by the City of Zamboanga,12 Mayor Celso Lobregat, Rep. Ma.
Isabelle Climaco and Rep. Erico Basilio Fabian who likewise pray for similar injunctive reliefs.
Petitioners herein moreover pray that the City of Zamboanga be excluded from the Bangsamoro
Homeland and/or Bangsamoro Juridical Entity and, in the alternative, that the MOA-AD be
declared null and void.

By Resolution of August 4, 2008, the Court issued a Temporary Restraining Order commanding
and directing public respondents and their agents to cease and desist from formally signing the
MOA-AD.13 The Court also required the Solicitor General to submit to the Court and petitioners
the official copy of the final draft of the MOA-AD,14 to which she complied.15

Meanwhile, the City of 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--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.24

The Court, thereafter, ordered the parties to submit their respective Memoranda. Most of the
parties submitted their memoranda on time.

III. OVERVIEW OF THE MOA-AD

As a necessary backdrop to the consideration of the objections raised in the subject five petitions
and six petitions-in-intervention against the MOA-AD, as well as the two comments-in-
intervention in favor of the MOA-AD, the Court takes an overview of the MOA.

The MOA-AD identifies the Parties to it as the GRP and the MILF.

Under the heading "Terms of Reference" (TOR), the MOA-AD includes not only four earlier
agreements between the GRP and MILF, but also two agreements between the 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.28

It thus appears that the "compact rights entrenchment" emanating from the regime of dar-ul-
mua'hada and dar-ul-sulh simply refers to all other agreements between the MILF and the
Philippine government - the Philippines being the land of compact and peace agreement - that
partake of the nature of a treaty device, "treaty" being broadly defined as "any solemn agreement
in writing that sets out understandings, obligations, and benefits for both parties which provides
for a framework that elaborates the principles declared in the [MOA-AD]."29

The MOA-AD states that the Parties "HAVE AGREED AND ACKNOWLEDGED AS
FOLLOWS," and starts with its main body.

The main body of the MOA-AD is divided into four strands, namely, Concepts and
Principles, Territory, Resources, and Governance.

A. CONCEPTS AND PRINCIPLES

This strand begins with the statement that it is "the birthright of all Moros and all Indigenous
peoples of Mindanao to identify themselves and be accepted as Bangsamoros.'" It defines
"Bangsamoro people" as the natives or original inhabitants of Mindanao and its adjacent islands
including Palawan and the Sulu archipelago at the time of conquest or colonization, and their
descendants whether mixed or of full blood, including their spouses.30

Thus, the concept of "Bangsamoro," as defined in this strand of the MOA-AD, includes not only
"Moros" as traditionally understood even by Muslims,31 but all indigenous peoples of Mindanao
and its adjacent islands. The MOA-AD adds that the freedom of choice of indigenous peoples
shall be respected. What this freedom of choice consists in has not been specifically defined.

The MOA-AD proceeds to refer to the "Bangsamoro homeland," the ownership of which is
vested exclusively in the Bangsamoro people by virtue of their prior rights of occupation.32 Both
parties to the MOA-AD acknowledge that ancestral domain does not form part of the public
domain.33

The Bangsamoro people are acknowledged as having the right to self-governance, which right is
said to be rooted on ancestral territoriality exercised originally under the suzerain authority of
their sultanates and the Pat a Pangampong ku Ranaw. The sultanates were described as states or
"karajaan/kadatuan" resembling a body politic endowed with all the elements of a nation-state in
the modern sense.34

The MOA-AD thus grounds the right to self-governance of the Bangsamoro people on the past
suzerain authority of the sultanates. As gathered, the territory defined as the Bangsamoro
homeland was ruled by several sultanates and, specifically in the case of the Maranao, by the Pat
a Pangampong ku Ranaw, a confederation of independent principalities (pangampong) each
ruled by datus and sultans, none of whom was supreme over the others.35
The MOA-AD goes on to describe the Bangsamoro people as "the First Nation' with defined
territory and with a system of government having entered into treaties of amity and commerce
with foreign nations."

The term "First Nation" is of Canadian origin referring to the indigenous peoples of that
territory, particularly those known as Indians. In Canada, each of these indigenous peoples is
equally entitled to be called "First Nation," hence, all of them are usually described collectively
by the plural "First Nations."36 To that extent, the MOA-AD, by identifying the Bangsamoro
people as "the First Nation" - suggesting its exclusive entitlement to that designation - departs
from the Canadian usage of the term.

The MOA-AD then mentions for the first time the "Bangsamoro Juridical Entity" (BJE) to
which it grants the authority and jurisdiction over the Ancestral Domain and Ancestral Lands of
the Bangsamoro.37

B. TERRITORY

The territory of the Bangsamoro homeland is described as the land mass as well as the maritime,
terrestrial, fluvial and alluvial domains, including the aerial domain and the atmospheric space
above it, embracing the Mindanao-Sulu-Palawan geographic region.38

More specifically, the core of the BJE is defined as the present geographic area of the ARMM -
thus constituting the following areas: Lanao del Sur, Maguindanao, Sulu, Tawi-Tawi, Basilan,
and Marawi City. Significantly, this core also includes certain municipalities of Lanao del Norte
that voted for inclusion in the ARMM in the 2001 plebiscite.39

Outside of this core, the BJE is to cover other provinces, cities, municipalities and barangays,
which are grouped into two categories, Category A and Category B. Each of these areas is to be
subjected to a plebiscite to be held on different dates, years apart from each other. Thus,
Category A areas are to be subjected to a plebiscite not later than twelve (12) months following
the signing of the MOA-AD.40 Category B areas, also called "Special Intervention Areas," on the
other hand, are to be subjected to a plebiscite twenty-five (25) years from the signing of a
separate agreement - the Comprehensive Compact.41

The Parties to the MOA-AD stipulate that the BJE shall have jurisdiction over all natural
resources within its "internal waters," defined as extending fifteen (15) kilometers from the
coastline of the BJE area;42 that the BJE shall also have "territorial waters," which shall stretch
beyond the BJE internal waters up to the baselines of the Republic of the Philippines (RP) south
east and south west of mainland Mindanao; and that within these territorial waters, the BJE and
the "Central Government" (used interchangeably with RP) shall exercise joint jurisdiction,
authority and management over all natural resources.43 Notably, the jurisdiction over the internal
waters is not similarly described as "joint."

The MOA-AD further provides for the sharing of minerals on the territorial waters between the
Central Government and the BJE, in favor of the latter, through production sharing and economic
cooperation agreement.44 The activities which the Parties are allowed to conduct on the
territorial waters are enumerated, among which are the exploration and utilization of natural
resources, regulation of shipping and fishing activities, and the enforcement of police and safety
measures.45 There is no similar provision on the sharing of minerals and allowed activities with
respect to the internal waters of the BJE.

C. RESOURCES

The MOA-AD states that the BJE is free to enter into any economic cooperation and trade
relations with foreign countries and shall have the option to establish trade missions in those
countries. Such relationships and understandings, however, are not to include aggression against
the GRP. The BJE may also enter into environmental cooperation agreements.46

The external defense of the BJE is to remain the duty and obligation of the Central Government.
The Central Government is also bound to "take necessary steps to ensure the BJE's participation
in international meetings and events" like those of the ASEAN and the specialized agencies of
the UN. The BJE is to be entitled to participate in Philippine official missions and delegations for
the negotiation of border agreements or protocols for environmental protection and equitable
sharing of incomes and revenues involving the bodies of water adjacent to or between the islands
forming part of the ancestral domain.47

With regard to the right of exploring for, producing, and obtaining all potential sources of energy,
petroleum, fossil fuel, mineral oil and natural gas, the jurisdiction and control thereon is to be
vested in the BJE "as the party having control within its territorial jurisdiction." This right carries
the proviso that, "in times of national emergency, when public interest so requires," the Central
Government may, for a fixed period and under reasonable terms as may be agreed upon by both
Parties, assume or direct the operation of such resources.48

The sharing between the Central Government and the BJE of total production pertaining to
natural resources is to be 75:25 in favor of the BJE.49

The MOA-AD provides that legitimate grievances of the Bangsamoro people arising from any
unjust dispossession of their territorial and proprietary rights, customary land tenures, or their
marginalization shall be acknowledged. Whenever restoration is no longer possible, reparation is
to be in such form as mutually determined by the Parties.50

The BJE may modify or cancel the forest concessions, timber licenses, contracts or agreements,
mining concessions, Mineral Production and Sharing Agreements (MPSA), Industrial Forest
Management Agreements (IFMA), and other land tenure instruments granted by the Philippine
Government, including those issued by the present ARMM.51

D. GOVERNANCE

The MOA-AD binds the Parties to invite a multinational third-party to observe and monitor the
implementation of the Comprehensive Compact. This compact is to embody the "details for the
effective enforcement" and "the mechanisms and modalities for the actual implementation" of
the MOA-AD. The MOA-AD explicitly provides that the participation of the third party shall not
in any way affect the status of the relationship between the Central Government and the BJE.52

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.54 Courts decline to issue
advisory opinions or to resolve hypothetical or feigned problems, or mere academic questions.55
The limitation of the power of judicial review to actual cases and controversies defines the role
assigned to the judiciary in a tripartite allocation of power, to assure that the courts will not
intrude into areas committed to the other branches of government.56

An actual case or controversy involves a conflict of legal rights, an assertion of opposite legal
claims, susceptible of judicial resolution as distinguished from a hypothetical or abstract
difference or dispute. There must be a contrariety of legal rights that can be interpreted and
enforced on the basis of existing law and jurisprudence.57 The Court can decide the
constitutionality of an act or treaty only when a proper case between opposing parties is
submitted for judicial determination.58

Related to the requirement of an actual case or controversy is the requirement of ripeness. A


question is ripe for adjudication when the act being challenged has had a direct adverse effect on
the individual challenging it.59 For a case to be considered ripe for adjudication, it is a
prerequisite that something had then been accomplished or performed by either branch before a
court may come into the picture,60 and the petitioner must allege the existence of an immediate or
threatened injury to itself as a result of the challenged action.61 He must show that he has
sustained or is immediately in danger of sustaining some direct injury as a result of the act
complained of.62

The Solicitor General argues that there is no justiciable controversy that is ripe for judicial
review in the present petitions, reasoning that

The unsigned MOA-AD is simply a list of consensus points subject to further


negotiations and legislative enactments as well as constitutional processes aimed at
attaining a final peaceful agreement. Simply put, the MOA-AD remains to be a proposal
that does not automatically create legally demandable rights and obligations until the list
of operative acts required have been duly complied with. x x x

xxxx

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 cites63 the following provisions of the MOA-AD:

TERRITORY

xxxx

2. Toward this end, the Parties enter into the following stipulations:
xxxx

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.

xxxx

GOVERNANCE

xxxx

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.64 (Underscoring supplied)

The Solicitor General's arguments fail to persuade.

Concrete acts under the MOA-AD are not necessary to render the present controversy ripe. In
Pimentel, Jr. v. Aguirre,65 this Court held:

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.

xxxx

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.66

In Santa Fe Independent School District v. Doe,67 the United States Supreme Court held that the
challenge to the constitutionality of the school's policy allowing student-led prayers and speeches
before games was ripe for adjudication, even if no public prayer had yet been led under the
policy, because the policy was being challenged as unconstitutional on its face.68

That the law or act in question is not yet effective does not negate ripeness. For example, in New
York v. United States,69 decided in 1992, the United States Supreme Court held that the action by
the State of New York challenging the provisions of the Low-Level Radioactive Waste Policy
Act was ripe for adjudication even if the questioned provision was not to take effect until January
1, 1996, because the parties agreed that New York had to take immediate action to avoid the
provision's consequences.70

The present petitions pray for Certiorari,71 Prohibition, and Mandamus. Certiorari and
Prohibition are remedies granted by law when any tribunal, board or officer has acted, in the case
of certiorari, or is proceeding, in the case of prohibition, without or in excess of its jurisdiction or
with grave abuse of discretion amounting to lack or excess of jurisdiction.72 Mandamus is a
remedy granted by law when any tribunal, corporation, board, officer or person unlawfully
neglects the performance of an act which the law specifically enjoins as a duty resulting from an
office, trust, or station, or unlawfully excludes another from the use or enjoyment of a right or
office to which such other is entitled.73 Certiorari, Mandamus and Prohibition are appropriate
remedies to raise constitutional issues and to review and/or prohibit/nullify, when proper, acts of
legislative and executive officials.74

The authority of the GRP Negotiating Panel is defined by Executive Order No. 3 (E.O. No. 3),
issued on February 28, 2001.75 The said executive order requires that "[t]he government's policy
framework for peace, including the systematic approach and the administrative structure for
carrying out the comprehensive peace process x x x be governed by this Executive Order."76

The present petitions allege that respondents GRP Panel and PAPP Esperon drafted the terms of
the MOA-AD without consulting the local government units or communities affected, nor
informing them of the proceedings. As will be discussed in greater detail later, such omission, by
itself, constitutes a departure by respondents from their mandate under E.O. No. 3.

Furthermore, the petitions allege that the provisions of the MOA-AD violate the Constitution.
The MOA-AD provides that "any provisions of the MOA-AD requiring amendments to the
existing legal framework shall come into force upon the signing of a Comprehensive Compact
and upon effecting the necessary changes to the legal framework," implying an amendment of
the Constitution to accommodate the MOA-AD. This stipulation, in effect, guaranteed to the
MILF the amendment of the Constitution. Such act constitutes another violation of its authority.
Again, these points will be discussed in more detail later.

As the petitions allege acts or omissions on the part of respondent that exceed their authority,
by violating their duties under E.O. No. 3 and the provisions of the Constitution and statutes, the
petitions make a prima facie case for Certiorari, Prohibition, and Mandamus, and an actual case
or controversy ripe for adjudication exists. When an act of a branch of government is
seriously alleged to have infringed the Constitution, it becomes not only the right but in
fact the duty of the judiciary to settle the dispute.77
B. LOCUS STANDI

For a party to have locus standi, one must allege "such a personal stake in the outcome of the
controversy as to assure that concrete adverseness which sharpens the presentation of issues
upon which the court so largely depends for illumination of difficult constitutional questions."78

Because constitutional cases are often public actions in which the relief sought is likely to affect
other persons, a preliminary question frequently arises as to this interest in the constitutional
question raised.79

When suing as a citizen, the person complaining must allege that he has been or is about to be
denied some right or privilege to which he is lawfully entitled or that he is about to be subjected
to some burdens or penalties by reason of the statute or act complained of.80 When the issue
concerns a public right, it is sufficient that the petitioner is a citizen and has an interest in the
execution of the laws.81

For a taxpayer, one is allowed to sue where there is an assertion that public funds are illegally
disbursed or deflected to an illegal purpose, or that there is a wastage of public funds through the
enforcement of an invalid or unconstitutional law.82 The Court retains discretion whether or not
to allow a taxpayer's suit.83

In the case of a legislator or member of Congress, an act of the Executive that injures the
institution of Congress causes a derivative but nonetheless substantial injury that can be
questioned by legislators. A member of the House of Representatives has standing to maintain
inviolate the prerogatives, powers and privileges vested by the Constitution in his office.84

An organization may be granted standing to assert the rights of its members,85 but the mere
invocation by the Integrated Bar of the Philippines or any member of the legal profession of the
duty to preserve the rule of law does not suffice to clothe it with standing.86

As regards a local government unit (LGU), it can seek relief in order to protect or vindicate an
interest of its own, and of the other LGUs.87

Intervenors, meanwhile, may be given legal standing upon showing of facts that satisfy the
requirements of the law authorizing intervention,88 such as a legal interest in the matter in
litigation, or in the success of either of the parties.

In any case, the Court has discretion to relax the procedural technicality on locus standi, given
the liberal attitude it has exercised, highlighted in the case of David v. Macapagal-Arroyo,89
where technicalities of procedure were brushed aside, the constitutional issues raised being of
paramount public interest or of transcendental importance deserving the attention of the Court in
view of their seriousness, novelty and weight as precedents.90 The Court's forbearing stance on
locus standi on issues involving constitutional issues has for its purpose the protection of
fundamental rights.
In not a few cases, the Court, in keeping with its duty under the Constitution to determine
whether the other branches of government have kept themselves within the limits of the
Constitution and the laws and have not abused the discretion given them, has brushed aside
technical rules of procedure.91

In the petitions at bar, petitioners Province of North Cotabato (G.R. No. 183591) Province of
Zamboanga del Norte (G.R. No. 183951), City of Iligan (G.R. No. 183893) 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."92

In lending credence to this policy decision, the Solicitor General points out that the President had
already disbanded the GRP Peace Panel.93

In David v. Macapagal-Arroyo,94 this Court held that the "moot and academic" principle not
being a magical formula that automatically dissuades courts in resolving a case, it will decide
cases, otherwise moot and academic, if it finds that (a) there is a grave violation of the
Constitution;95 (b) the situation is of exceptional character and paramount public interest is
involved;96 (c) the constitutional issue raised requires formulation of controlling principles to
guide the bench, the bar, and the public;97 and (d) the case is capable of repetition yet evading
review.98

Another exclusionary circumstance that may be considered is where there is a voluntary


cessation of the activity complained of by the defendant or doer. Thus, once a suit is filed and the
doer voluntarily ceases the challenged conduct, it does not automatically deprive the tribunal of
power to hear and determine the case and does not render the case moot especially when the
plaintiff seeks damages or prays for injunctive relief against the possible recurrence of the
violation.99

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. Romulo100 and Manalo v.
Calderon101 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.107

As early as 1948, in Subido v. Ozaeta,108 the Court has recognized the statutory right to examine
and inspect public records, a right which was eventually accorded constitutional status.

The right of access to public documents, as enshrined in both the 1973 Constitution and the 1987
Constitution, has been recognized as a self-executory constitutional right.109

In the 1976 case of Baldoza v. Hon. Judge Dimaano,110 the Court ruled that access to public
records is predicated on the right of the people to acquire information on matters of public
concern since, undoubtedly, in a democracy, the pubic has a legitimate interest in matters of
social and political significance.

x x x The incorporation of this right in the Constitution is a recognition of the fundamental role
of free exchange of information in a democracy. There can be no realistic perception by the
public of the 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 x111

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 nation112 so that
they may be able to criticize and participate in the affairs of the government in a responsible,
reasonable and effective manner. It is by ensuring an unfettered and uninhibited exchange of
ideas among a well-informed public that a government remains responsive to the changes
desired by the people.113

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 concern114
faces no serious challenge. In fact, respondents admit that the MOA-AD is indeed of public
concern.115 In previous cases, the Court found that the regularity of real estate transactions
entered in the Register of Deeds,116 the need for adequate notice to the public of the various
laws,117 the civil service eligibility of a public employee,118 the proper management of GSIS
funds allegedly used to grant loans to public officials,119 the recovery of the Marcoses' alleged ill-
gotten wealth,120 and the identity of party-list nominees,121 among others, are matters of public
concern. Undoubtedly, the MOA-AD subject of the present cases is of public concern, involving
as it does the sovereignty and territorial integrity of the State, which directly affects the lives of
the public at large.

Matters of public concern covered by the right to information include steps and negotiations
leading to the consummation of the contract. In not distinguishing as to the executory nature or
commercial character of agreements, the Court has categorically ruled:

x x x [T]he right to information "contemplates inclusion of negotiations leading to the


consummation of the transaction." Certainly, a consummated contract is not a
requirement for the exercise of the right to information. Otherwise, the people can never
exercise the right if no contract is consummated, and if one is consummated, it may be
too late for the public to expose its defects.

Requiring a consummated contract will keep the public in the dark until the contract,
which may be grossly disadvantageous to the government or even illegal, becomes fait
accompli. This negates the State policy of full transparency on matters of public concern,
a situation which the framers of the Constitution could not have intended. Such a
requirement will prevent the citizenry from participating in the public discussion of any
proposed contract, effectively truncating a basic right enshrined in the Bill of Rights. We
can allow neither an emasculation of a constitutional right, nor a retreat by the State of its
avowed "policy of full disclosure of all its transactions involving public interest."122
(Emphasis and italics in the original)

Intended as a "splendid symmetry"123 to the right to information under the Bill of Rights is the
policy of public disclosure under Section 28, Article II of the Constitution reading:

Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and
implements a policy of full public disclosure of all its transactions involving public
interest.124

The policy of full public disclosure enunciated in above-quoted Section 28 complements the right
of access to information on matters of public concern found in the Bill 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.125

The policy of public disclosure establishes a concrete ethical principle for the conduct of public
affairs in a genuinely open democracy, with the people's right to know as the centerpiece. It is a
mandate of the State to be accountable by following such policy.126 These provisions are vital to
the exercise of the freedom of expression and essential to hold public officials at all times
accountable to the people.127

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


Commission so disclose:

MR. SUAREZ. And since this is not self-executory, this policy will not be enunciated or
will not be in force and effect until after Congress shall have provided it.
MR. OPLE. I expect it to influence the climate of public ethics immediately but, of
course, the implementing law will have to be enacted by Congress, Mr. Presiding
Officer.128

The following discourse, after Commissioner Hilario Davide, Jr., sought clarification on the
issue, is enlightening.

MR. DAVIDE. I would like to get some clarifications on this. Mr. Presiding Officer, did I
get the Gentleman correctly as having said that this is not a self-executing provision? It
would require a legislation by Congress to implement?

MR. OPLE. Yes. Originally, it was going to be self-executing, but I accepted an


amendment from Commissioner Regalado, so that the safeguards on national interest are
modified by the clause "as may be provided by law"

MR. DAVIDE. But as worded, does it not mean that this will immediately take effect
and Congress may provide for reasonable safeguards on the sole ground national
interest?

MR. OPLE. Yes. I think so, Mr. Presiding Officer, I said earlier that it should
immediately influence the climate of the conduct of public affairs but, of course,
Congress here may no longer pass a law revoking it, or if this is approved, revoking this
principle, which is inconsistent with this policy.129 (Emphasis supplied)

Indubitably, the effectivity of the policy of public disclosure need not await the passing of a
statute. As Congress cannot revoke this principle, it is merely directed to provide for "reasonable
safeguards." The complete and effective exercise of the right to information necessitates that its
complementary provision on public disclosure derive the same self-executory nature. Since both
provisions go hand-in-hand, it is absurd to say that the 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.131 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.132 (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. 3.133 The preambulatory clause of E.O. No. 3 declares that there is a need to further
enhance the contribution of civil society to the comprehensive peace process by institutionalizing
the people's participation.

One of the three underlying principles of the comprehensive peace process is that it "should be
community-based, reflecting the sentiments, values and principles important to all Filipinos" and
"shall be defined not by the government alone, nor by the different contending groups only, but
by all Filipinos as one community."134 Included as a component of the comprehensive peace
process is consensus-building and empowerment for peace, which includes "continuing
consultations on both national and local levels to build consensus for a peace agenda and
process, and the mobilization and facilitation of people's participation in the peace process."135

Clearly, E.O. No. 3 contemplates not just the conduct of a plebiscite to effectuate
"continuing" consultations, contrary to respondents' position that plebiscite is "more than
sufficient consultation."136

Further, E.O. No. 3 enumerates the functions and responsibilities of the PAPP, one of which is to
"[c]onduct regular dialogues with the National Peace Forum (NPF) and other peace partners to
seek relevant information, comments, recommendations as well as to render appropriate and
timely reports on the progress of the comprehensive peace process."137 E.O. No. 3 mandates the
establishment of the NPF to be "the principal forum for the PAPP to consult with and seek
advi[c]e from the peace advocates, peace partners and concerned sectors of society on both
national and local levels, on the implementation of the comprehensive peace process, as well as
for government[-]civil society dialogue and consensus-building on peace agenda and
initiatives."138

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.139

Petitioners are not claiming a seat at the negotiating table, contrary to respondents' retort in
justifying the denial of petitioners' right to be consulted. Respondents' stance manifests the
manner by which they treat the salient provisions of E.O. No. 3 on people's participation. Such
disregard of the express mandate of the President is not much different from superficial conduct
toward token provisos that border on classic lip service.140 It illustrates a gross evasion of
positive duty and a virtual refusal to perform the duty enjoined.

As for respondents' invocation of the doctrine of executive privilege, it is not tenable under the
premises. The argument defies sound reason when contrasted with E.O. No. 3's explicit
provisions on continuing consultation and dialogue on both national and local levels. The
executive order even recognizes the exercise of the public's right even before the GRP makes
its official recommendations or before the government proffers its definite propositions.141 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"142
is well-taken. The LGC chapter on intergovernmental relations puts flesh into this avowed
policy:

Prior Consultations Required. - No project or program shall be implemented by


government authorities unless the consultations mentioned in Sections 2 (c) and 26 hereof
are complied with, and prior approval of the sanggunian concerned is obtained: Provided,
That occupants in areas where such projects are to be implemented shall not be evicted
unless appropriate relocation sites have been provided, in accordance with the provisions
of the Constitution.143 (Italics and underscoring supplied)

In Lina, Jr. v. Hon. Pao,144 the Court held that the above-stated policy and above-quoted
provision of the LGU apply only to national programs or projects which are to be implemented
in a particular local community. Among the programs and projects covered are those that are
critical to the environment and human ecology including those that may call for the eviction of a
particular group of people residing in the locality where these will be implemented.145 The
MOA-AD is one peculiar program that unequivocally and unilaterally vests ownership of a
vast territory to the Bangsamoro people,146 which could pervasively and drastically result to
the diaspora or displacement of a great number of inhabitants from their total
environment.

With respect to the indigenous cultural communities/indigenous peoples (ICCs/IPs), whose


interests are represented herein by petitioner Lopez and are adversely affected by the MOA-AD,
the ICCs/IPs have, under the IPRA, the right to participate fully at all levels of decision-making
in matters which may affect their rights, lives and destinies.147 The MOA-AD, an instrument
recognizing ancestral domain, failed to justify its non-compliance with the clear-cut mechanisms
ordained in said Act,148 which entails, among other things, the observance of the free and prior
informed consent of the ICCs/IPs.

Notably, the IPRA does not grant the Executive Department or any government agency the
power to delineate and recognize an ancestral domain claim by mere agreement or compromise.
The recognition of the ancestral domain is the raison d'etre of the MOA-AD, without which all
other stipulations or "consensus points" necessarily must fail. In proceeding to make a sweeping
declaration on ancestral domain, without complying with the IPRA, which is cited as one of the
TOR of the MOA-AD, respondents clearly transcended the boundaries of their authority. As
it seems, even the heart of the MOA-AD is still subject to necessary changes to the legal
framework. While paragraph 7 on Governance suspends the effectivity of all provisions requiring
changes to the legal framework, such clause is itself invalid, as will be discussed in the following
section.

Indeed, ours is an open society, with all the acts of the government subject to public scrutiny and
available always to public cognizance. This has to be so if the country is to remain democratic,
with sovereignty residing in the people and all government authority emanating from them.149

ON THE SECOND SUBSTANTIVE ISSUE

With regard to the provisions of the MOA-AD, there can be no question that they cannot all be
accommodated under the present Constitution and laws. Respondents have admitted as much in
the oral arguments before this Court, and the MOA-AD itself recognizes the need to amend the
existing legal framework to render effective at least some of its provisions. Respondents,
nonetheless, counter that the MOA-AD is free of any legal infirmity because any provisions
therein which are inconsistent with the present legal framework will not be effective until the
necessary changes to that framework are made. The validity of this argument will be considered
later. For now, the Court shall pass upon how

The MOA-AD is inconsistent with the Constitution and laws as presently worded.

In general, the objections against the MOA-AD center on the extent of the powers conceded
therein to the BJE. Petitioners assert that the powers granted to the BJE exceed those granted to
any local government under present laws, and even go beyond those of the present ARMM.
Before assessing some of the specific powers that would have been vested in the BJE, however,
it would be useful to turn first to a general idea that serves as a unifying link to the different
provisions of the MOA-AD, namely, the international law concept of association. Significantly,
the MOA-AD explicitly alludes to this concept, indicating that the Parties actually framed its
provisions with it in mind.

Association is referred to in paragraph 3 on TERRITORY, paragraph 11 on RESOURCES, and


paragraph 4 on GOVERNANCE. It is in the last mentioned provision, however, that the MOA-
AD most clearly uses it to describe the envisioned relationship between the BJE and the Central
Government.

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,151 are associated states of the U.S. pursuant to a Compact of Free Association. The
currency in these countries is the U.S. dollar, indicating their very close ties with the U.S., yet
they issue their own travel documents, which is a mark of their statehood. Their international
legal status as states was confirmed by the UN Security Council and by their admission to UN
membership.

According to their compacts of free association, the Marshall Islands and the FSM generally
have the capacity to conduct foreign affairs in their own name and right, such capacity extending
to matters such as the law of the sea, marine resources, trade, banking, postal, civil aviation, and
cultural relations. The U.S. government, when conducting its foreign affairs, is obligated to
consult with the governments of the Marshall Islands or the FSM on matters which it (U.S.
government) regards as relating to or affecting either government.

In the event of attacks or threats against the Marshall Islands or the FSM, the U.S. government
has the authority and obligation to defend them as if they were part of U.S. territory. The U.S.
government, moreover, has the option of establishing and using military areas and facilities
within these associated states and has the right to bar the military personnel of any third country
from having access to these territories for military purposes.

It bears noting that in U.S. constitutional and international practice, free association is
understood as an international association between sovereigns. The Compact of Free Association
is a treaty which is subordinate to the associated nation's national constitution, and each party
may terminate the association consistent with the right 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.152

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.153

Back to the MOA-AD, it contains many provisions which are consistent with the international
legal concept of association, specifically the following: the BJE's capacity to enter into economic
and trade relations with foreign countries, the commitment of the Central Government to ensure
the BJE's participation in meetings and events in the ASEAN and the specialized UN agencies,
and the continuing responsibility of the Central Government over external defense. Moreover,
the BJE's right to participate in Philippine official missions bearing on negotiation of border
agreements, environmental protection, and sharing of revenues pertaining to the bodies of water
adjacent to or between the islands forming part of the ancestral domain, resembles the right of
the governments of FSM and the Marshall Islands to be consulted by the U.S. government on
any foreign affairs matter affecting them.

These provisions of the MOA indicate, among other things, that the Parties aimed to vest in the
BJE the status of an associated state or, at any rate, a status closely approximating it.

The concept of association is not recognized under the present Constitution

No province, city, or municipality, not even the ARMM, is recognized under our laws as having
an "associative" relationship with the national government. Indeed, the concept implies powers
that go beyond anything ever granted by the Constitution to any local or regional government. It
also implies the recognition of the associated entity as a state. The Constitution, however, does
not contemplate any state in this jurisdiction other than the Philippine State, much less does it
provide for a transitory status that aims to prepare any part of Philippine territory for
independence.
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,154
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 Secretary155 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.157

Article X, Section 3 of the Organic Act of the ARMM is a bar to the adoption of the
definition of "Bangsamoro people" used in the MOA-AD. Paragraph 1 on Concepts and
Principles states:

1. It is the birthright of all Moros and all Indigenous peoples of Mindanao to identify
themselves and be accepted as "Bangsamoros". The Bangsamoro people refers to
those who are natives or original inhabitants of Mindanao and its adjacent islands
including Palawan and the Sulu archipelago at the time of conquest or colonization of its
descendants whether mixed or of full blood. Spouses and their descendants are classified
as Bangsamoro. The freedom of choice of the Indigenous people shall be respected.
(Emphasis and underscoring supplied)

This use of the term Bangsamoro sharply contrasts with that found in the Article X, Section 3 of
the Organic Act, which, rather than lumping together the identities of the Bangsamoro and other
indigenous peoples living in Mindanao, clearly distinguishes between Bangsamoro people and
Tribal peoples, as follows:

"As used in this Organic Act, the phrase "indigenous cultural community" refers to
Filipino citizens residing in the autonomous region who are:
(a) Tribal peoples. These are citizens whose social, cultural and economic conditions
distinguish them from other sectors of the national community; and

(b) Bangsa Moro people. These are citizens who are believers in Islam and who have
retained some or all of their own social, economic, cultural, and political
institutions."

Respecting the IPRA, it lays down the prevailing procedure for the delineation and recognition
of ancestral domains. The MOA-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:

xxxx

b) Petition for Delineation. - The process of delineating a specific perimeter may be


initiated by the NCIP with the consent of the ICC/IP concerned, or through a Petition for
Delineation filed with the NCIP, by a majority of the members of the ICCs/IPs;

c) Delineation Proper. - The official delineation of ancestral domain boundaries including


census of all community members therein, shall be immediately undertaken by the
Ancestral Domains Office upon filing of the application by the ICCs/IPs concerned.
Delineation will be done in coordination with the community concerned and shall at all
times include genuine involvement and participation by the members of the communities
concerned;

d) Proof Required. - Proof of Ancestral Domain Claims shall include the testimony of
elders or community under oath, and other documents directly or indirectly attesting to
the possession or occupation of the area since time immemorial by such ICCs/IPs in the
concept of owners which shall be any one (1) of the following authentic documents:

1) Written accounts of the ICCs/IPs customs and traditions;

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.

xxxx

To remove all doubts about the irreconcilability of the MOA-AD with the present legal system, a
discussion of not only the Constitution and domestic statutes, but also of international law is in
order, for

Article II, Section 2 of the Constitution states that the Philippines "adopts the generally
accepted principles of international law as part of the law of the land."

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 x x

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."166 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 37

1. Indigenous peoples have the right to the recognition, observance and enforcement of
treaties, agreements and other constructive arrangements concluded with States or their
successors and to have States honour and respect such treaties, agreements and other
constructive arrangements.

2. Nothing in this Declaration may be interpreted as diminishing or eliminating the rights


of indigenous peoples contained in treaties, agreements and other constructive
arrangements.

Article 38

States in consultation and cooperation with indigenous peoples, shall take the appropriate
measures, including legislative measures, to achieve the ends of this Declaration.

Assuming that the UN DRIP, like the Universal Declaration on Human Rights, must now be
regarded as embodying customary international law - a question which the Court need not
definitively resolve here - the obligations enumerated therein do not strictly require the Republic
to grant the Bangsamoro people, through the instrumentality of the BJE, the particular rights and
powers provided for in the MOA-AD. Even the more specific provisions of the UN DRIP are
general in scope, allowing for flexibility in its application by the different States.

There is, for instance, no requirement in the UN DRIP that States now guarantee indigenous
peoples their own police and internal security force. Indeed, Article 8 presupposes that it is the
State which will provide protection for indigenous peoples against acts like the forced
dispossession of their lands - a function that is normally performed by police officers. If the
protection of a right so essential to indigenous 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,168 in issue was the authority of the President to declare a state of
rebellion - an authority which is not expressly provided for in the Constitution. The Court held
thus:

"In her ponencia in Marcos v. Manglapus, Justice Cortes put her thesis into jurisprudence.
There, the Court, by a slim 8-7 margin, upheld the President's power to forbid the return
of her exiled predecessor. The rationale for the majority's ruling rested on the President's

. . . unstated residual powers which are implied from the grant of executive
power and which are necessary for her to comply with her duties under the
Constitution. The powers of the President are not limited to what are
expressly enumerated in the article on the Executive Department and in
scattered provisions of the Constitution. This is so, notwithstanding the avowed
intent of the members of the Constitutional Commission of 1986 to limit the
powers of the President as a reaction to the abuses under the regime of Mr.
Marcos, for the result was a limitation of specific powers of the President,
particularly those relating to the commander-in-chief clause, but not a diminution
of the general grant of executive power.

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.169

As the experience of nations which have similarly gone through internal armed conflict will
show, however, peace is rarely attained by simply pursuing a military solution. Oftentimes,
changes as far-reaching as a fundamental reconfiguration of the nation's constitutional structure
is required. The observations of Dr. Kirsti Samuels are enlightening, to wit:

x x x [T]he fact remains that a successful political and governance transition must form
the core of any post-conflict peace-building mission. As we have observed in Liberia and
Haiti over the last ten years, conflict cessation without modification of the political
environment, even where state-building is undertaken through technical electoral
assistance and institution- or capacity-building, is unlikely to succeed. On average, more
than 50 percent of states emerging from conflict return to conflict. Moreover, a
substantial proportion of transitions have resulted in weak or limited democracies.

The design of a constitution and its constitution-making process can play an important
role in the political and governance transition. Constitution-making after conflict is an
opportunity to create a common vision of the future of a state and a road map on how to
get there. The constitution can be partly a peace agreement and partly a framework
setting up the rules by which the new democracy will operate.170
In the same vein, Professor Christine Bell, in her article on the nature and legal status of peace
agreements, observed that the typical way that peace agreements establish or confirm
mechanisms for demilitarization and demobilization is by linking them to new constitutional
structures addressing governance, elections, and legal and human rights institutions.171

In the Philippine experience, the link between peace agreements and constitution-making has
been recognized by no less than the framers of the Constitution. Behind the provisions of the
Constitution on autonomous 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.173(Emphasis
supplied)

The constitutional provisions on autonomy and the statutes enacted pursuant to them have, to the
credit of their drafters, been partly successful. Nonetheless, the Filipino people are still faced
with the reality of an on-going conflict between the Government and the MILF. If the President
is to be expected to find means for bringing this conflict to an end and to achieve lasting peace in
Mindanao, then she must be given the leeway to explore, in the course of peace negotiations,
solutions that may require changes to the Constitution for their implementation. Being uniquely
vested with the power to conduct peace negotiations with rebel groups, the President is in a
singular position to know the precise nature of their grievances which, if resolved, may bring an
end to hostilities.

The President may not, of course, unilaterally implement the solutions that she considers viable,
but she may not be prevented from submitting them as recommendations to Congress, which
could then, if it is minded, act upon them pursuant to the legal procedures for constitutional
amendment and revision. In particular, Congress would have the option, pursuant to Article
XVII, Sections 1 and 3 of the Constitution, to propose the recommended amendments or revision
to the people, call a constitutional convention, or submit to the electorate the question of calling
such a convention.
While the President does not possess constituent powers - as those powers may be exercised only
by Congress, a Constitutional Convention, or the people through initiative and referendum - she
may submit proposals for constitutional change to Congress in a manner that does not involve
the arrogation of constituent powers.

In Sanidad v. COMELEC,174 in issue was the legality of then President Marcos' act of directly
submitting proposals for constitutional amendments to a referendum, bypassing the interim
National Assembly which was the body vested by the 1973 Constitution with the power to
propose such amendments. President Marcos, it will be recalled, never convened the interim
National Assembly. The majority upheld the President's act, holding that "the urges of absolute
necessity" compelled the President as the agent of the people to act as he did, there being no
interim National Assembly to propose constitutional amendments. Against this ruling, Justices
Teehankee and Muoz Palma vigorously dissented. The Court's concern at present, however, is
not with regard to the point on which it was then divided in that controversial case, but on that
which was not disputed by either side.

Justice Teehankee's dissent,175 in particular, bears noting. While he disagreed that the President
may directly submit proposed constitutional amendments to a referendum, implicit in his opinion
is a recognition that he would have upheld the President's action along with the majority had the
President convened the interim National Assembly and coursed his proposals through it. Thus
Justice Teehankee opined:

"Since the Constitution provides for the organization of the essential departments of
government, defines and delimits the powers of each and prescribes the manner of the
exercise of such powers, and the constituent power has not been granted to but has been
withheld from the President or Prime Minister, it follows that the President's questioned
decrees proposing and submitting constitutional amendments directly to the people
(without the intervention of the interim National Assembly in whom the power is
expressly vested) are devoid of constitutional and legal basis."176 (Emphasis supplied)

From the foregoing discussion, the principle may be inferred that the President - in the course of
conducting peace negotiations - may validly consider implementing even those policies that
require changes to the Constitution, but she may not unilaterally implement them without the
intervention of Congress, or act in any way as if the assent of that body were assumed as a
certainty.

Since, under the present Constitution, the people also have the power to directly propose
amendments through initiative and referendum, the President may also submit her
recommendations to the people, not as a formal proposal to be voted on in a plebiscite similar to
what President Marcos did in Sanidad, but for their independent consideration of whether these
recommendations merit being formally proposed through initiative.

These recommendations, however, may amount to nothing more than the President's suggestions
to the people, for any further involvement in the process of initiative by the Chief Executive may
vitiate its character as a genuine "people's initiative." The only initiative recognized by the
Constitution is that which truly proceeds from the people. As the Court stated in Lambino v.
COMELEC:177

"The Lambino Group claims that their initiative is the people's voice.' However, the
Lambino Group unabashedly states in ULAP Resolution No. 2006-02, in the verification
of their petition with the COMELEC, that ULAP maintains its unqualified support to the
agenda of Her Excellency President Gloria Macapagal-Arroyo for constitutional reforms.'
The Lambino Group thus admits that their people's' initiative is an unqualified
support to the agenda' of the incumbent President to change the Constitution. This
forewarns the Court to be wary of incantations of people's voice' or sovereign will' in
the present initiative."

It will be observed that the President has authority, as stated in her oath of office,178 only to
preserve and defend the Constitution. Such presidential power does not, however, extend to
allowing her to change the Constitution, but simply to recommend proposed amendments or
revision. As long as she limits herself to recommending these changes and submits to the proper
procedure for constitutional amendments and revision, her mere recommendation need not be
construed as an unconstitutional act.

The foregoing discussion focused on the President's authority to propose constitutional


amendments, since her authority to propose new legislation is not in controversy. It has been an
accepted practice for Presidents in this jurisdiction to propose new legislation. One of the more
prominent instances the practice is usually done is in the yearly State of the Nation Address of
the President to Congress. Moreover, the annual general appropriations bill has always been
based on the budget prepared by the President, which - for all intents and purposes - is a proposal
for new legislation coming from the President.179

The "suspensive clause" in the MOA-AD viewed in light of the above-discussed standards

Given the limited nature of the President's authority to propose constitutional amendments, she
cannot guarantee to any third party that the required amendments will eventually be put in
place, nor even be submitted to a plebiscite. The most she could do is submit these proposals as
recommendations either to Congress or the people, in whom constituent powers are vested.

Paragraph 7 on Governance of the MOA-AD states, however, that all provisions thereof which
cannot be reconciled with the present Constitution and laws "shall come into force upon signing
of a Comprehensive Compact and upon effecting the necessary changes to the legal framework."
This stipulation does not bear the marks of a suspensive condition - defined in civil law as a
future and uncertain event - but of a term. It is not a question of whether the necessary changes
to the legal framework will be effected, but when. That there is no uncertainty being
contemplated is plain from what follows, for the paragraph goes on to state that the contemplated
changes shall be "with due regard to non derogation of prior agreements and within the stipulated
timeframe to be contained in the Comprehensive Compact."
Pursuant to this stipulation, therefore, it is mandatory for the GRP to effect the changes to the
legal framework contemplated in the MOA-AD - which changes would include constitutional
amendments, as discussed earlier. It bears noting that,

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: Lom Accord Amnesty180 (the Lom Accord case) of
the Special Court of Sierra Leone is enlightening. The Lom Accord was a peace agreement
signed on July 7, 1999 between the Government of Sierra Leone and the Revolutionary United
Front (RUF), a rebel group with which the Sierra Leone Government had been in armed conflict
for around eight years at the time of signing. There were non-contracting signatories to the
agreement, among which were the Government of the Togolese Republic, the Economic
Community of West African States, and the UN.

On January 16, 2002, after a successful negotiation between the UN Secretary-General and the
Sierra Leone Government, another agreement was entered into by the UN and that Government
whereby the Special Court of Sierra Leone was established. The sole purpose of the Special
Court, an international court, was to try persons who bore the greatest responsibility for serious
violations of international humanitarian law and Sierra Leonean law committed in the territory of
Sierra Leone since November 30, 1996.

Among the stipulations of the Lom Accord was a provision for the full pardon of the members
of the RUF with respect to anything done by them in pursuit of their objectives as members of
that organization since the conflict began.

In the Lom Accord case, the Defence argued that the Accord created an internationally
binding obligation not to prosecute the beneficiaries of the amnesty provided therein, citing,
among other things, the participation of foreign dignitaries and international organizations in the
finalization of that agreement. The Special Court, however, rejected this argument, ruling that the
Lome Accord is not a treaty and that it can only create binding obligations and rights between the
parties in municipal law, not in international law. Hence, the Special Court held, it is ineffective
in depriving an international court like it of jurisdiction.

"37. In regard to the nature of a negotiated settlement of an internal armed conflict it is


easy to assume and to argue with some degree of plausibility, as Defence counsel for
the defendants seem to have done, that the mere fact that in addition to the parties
to the conflict, the document formalizing the settlement is signed by foreign heads of
state or their representatives and representatives of international organizations,
means the agreement of the parties is internationalized so as to create obligations in
international law.

xxxx

40. Almost every conflict resolution will involve the parties to the conflict and the
mediator or facilitator of the settlement, or persons or bodies under whose auspices the
settlement took place but who are not at all parties to the conflict, are not contracting
parties and who do not claim any obligation from the contracting parties or incur any
obligation from the settlement.
41. In this case, the parties to the conflict are the lawful authority of the State and
the RUF which has no status of statehood and is to all intents and purposes a faction
within the state. The non-contracting signatories of the Lom Agreement were moral
guarantors of the principle that, in the terms of Article XXXIV of the Agreement,
"this peace agreement is implemented with integrity and in good faith by both
parties". The moral guarantors assumed no legal obligation. It is recalled that the UN
by its representative appended, presumably for avoidance of doubt, an understanding of
the extent of the agreement to be implemented as not including certain international
crimes.

42. An international agreement in the nature of a treaty must create rights and obligations
regulated by international law so that a breach of its terms will be a breach determined
under international law which will also provide principle means of enforcement. The
Lom Agreement created neither rights nor obligations capable of being regulated
by international law. An agreement such as the Lom Agreement which brings to an
end an internal armed conflict no doubt creates a factual situation of restoration of
peace that the international community acting through the Security Council may
take note of. That, however, will not convert it to an international agreement which
creates an obligation enforceable in international, as distinguished from municipal,
law. A breach of the terms of such a peace agreement resulting in resumption of internal
armed conflict or creating a threat to peace in the determination of the Security Council
may indicate a reversal of the factual situation of peace to be visited with possible legal
consequences arising from the new situation of conflict created. Such consequences such
as action by the Security Council pursuant to Chapter VII arise from the situation and not
from the agreement, nor from the obligation imposed by it. Such action cannot be
regarded as a remedy for the breach. A peace agreement which settles an internal
armed conflict cannot be ascribed the same status as one which settles an
international armed conflict which, essentially, must be between two or more
warring States. The Lom Agreement cannot be characterised as an international
instrument. x x x" (Emphasis, italics and underscoring supplied)

Similarly, that the MOA-AD would have been signed by representatives of States and
international organizations not parties to the Agreement would not have sufficed to vest in it a
binding character under international law.

In another vein, concern has been raised that the MOA-AD would amount to a unilateral
declaration of the Philippine State, binding under international law, that it would comply with all
the stipulations stated therein, with the result that it would have to amend its Constitution
accordingly regardless of the true will of the people. Cited as authority for this view is Australia
v. France,181 also known as the Nuclear Tests Case, decided by the International Court of Justice
(ICJ).

In the Nuclear Tests Case, Australia challenged before the ICJ the legality of 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,183 also known as the Case Concerning the Frontier
Dispute. The public declaration subject of that case was a statement made by the President of
Mali, in an interview by a foreign press agency, that Mali would abide by the decision to be
issued by a commission of the Organization of African Unity on a frontier dispute then pending
between Mali and Burkina Faso.

Unlike in the Nuclear Tests Case, the ICJ held that the statement of Mali's President was not a
unilateral act with legal implications. It clarified that its ruling in the Nuclear Tests case rested on
the peculiar circumstances surrounding the French declaration subject thereof, to wit:

40. In order to assess the intentions of the author of a unilateral act, account must be
taken of all the factual circumstances in which the act occurred. For example, in the
Nuclear Tests cases, the Court took the view that since the applicant States were not
the only ones concerned at the possible continuance of atmospheric testing by the
French Government, that Government's unilateral declarations had conveyed to
the world at large, including the Applicant, its intention effectively to terminate
these tests (I.C.J. Reports 1974, p. 269, para. 51; p. 474, para. 53). In the particular
circumstances of those cases, the French Government could not express an intention
to be bound otherwise than by unilateral declarations. It is difficult to see how it
could have accepted the terms of a negotiated solution with each of the applicants
without thereby jeopardizing its contention that its conduct was lawful. The
circumstances of the present case are radically different. Here, there was nothing to
hinder the Parties from manifesting an intention to accept the binding character of
the conclusions of the Organization of African Unity Mediation Commission by the
normal method: a formal agreement on the basis of reciprocity. Since no agreement
of this kind was concluded between the Parties, the Chamber finds that there are no
grounds to interpret the declaration made by Mali's head of State on 11 April 1975 as a
unilateral act with legal implications in regard to the present case. (Emphasis and
underscoring supplied)

Assessing the MOA-AD in light of the above criteria, it would not have amounted to a unilateral
declaration on the part of the Philippine State to the international community. The Philippine
panel did not draft the same with the clear intention of being bound thereby to the international
community as a whole or to any State, but only to the MILF. While there were States and
international organizations involved, one way or another, in the negotiation and projected signing
of the MOA-AD, they participated merely as witnesses or, in the case of Malaysia, as facilitator.
As held in the Lom Accord case, the mere fact that in addition to the parties to the conflict, the
peace settlement is signed by representatives of states and international organizations does not
mean that the agreement is internationalized so as to create obligations in international law.
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.

G.R. No. 167919 February 14, 2007

PLARIDEL M. ABAYA, COMMODORE PLARIDEL C. GARCIA (retired) and PMA 59


FOUNDATION, INC., rep. by its President, COMMODORE CARLOS L. AGUSTIN
(retired), Petitioners,
vs.
HON. SECRETARY HERMOGENES E. EBDANE, JR., in his capacity as Secretary of the
DEPARTMENT OF PUBLIC WORKS and HIGHWAYS, HON. SECRETARY EMILIA T.
BONCODIN, in her capacity as Secretary of the DEPARTMENT OF BUDGET and
MANAGEMENT, HON. SECRETARY CESAR V. PURISIMA, in his capacity as Secretary
of the DEPARTMENT OF FINANCE, HON. TREASURER NORMA L. LASALA, in her
capacity as Treasurer of the Bureau of Treasury, and CHINA ROAD and BRIDGE
CORPORATION, Respondents.

DECISION

CALLEJO, SR., J.:

Before the Court is the petition for certiorari and prohibition under Rule 65 of the Rules of Court
seeking to set aside and nullify Resolution No. PJHL-A-04-012 dated May 7, 2004 issued by the
Bids and Awards Committee (BAC) of the Department of Public Works and Highways (DPWH)
and approved by then DPWH Acting Secretary Florante Soriquez. The assailed resolution
recommended the award to private respondent China Road & Bridge Corporation of the contract
for the implementation of civil works for Contract Package No. I (CP I), which consists of the
improvement/rehabilitation of the San Andres (Codon)-Virac-Jct. Bago-Viga road, with the
length of 79.818 kilometers, in the island province of Catanduanes.

The CP I project is one of the four packages comprising the project for the
improvement/rehabilitation of the Catanduanes Circumferential Road, covering a total length of
about 204.515 kilometers, which is the main highway in Catanduanes Province. The road section
(Catanduanes Circumferential Road) is part of the Arterial Road Links Development Project
(Phase IV) funded under Loan Agreement No. PH-P204 dated December 28, 1999 between the
Japan Bank for International Cooperation (JBIC) and the Government of the Republic of the
Philippines.
Background

Based on the Exchange of Notes dated December 27, 1999,1 the Government of Japan and the
Government of the Philippines, through their respective representatives, namely, Mr. Yoshihisa
Ara, Ambassador Extraordinary and Plenipotentiary of Japan to the Republic of the Philippines,
and then Secretary of Foreign Affairs Domingo L. Siazon, have reached an understanding
concerning Japanese loans to be extended to the Philippines. These loans were aimed at
promoting our countrys economic stabilization and development efforts.

The Exchange of Notes consisted of two documents: (1) a Letter from the Government of Japan,
signed by Ambassador Ara, addressed to then Secretary of Foreign Affairs Siazon, confirming
the understanding reached between the two governments concerning the loans to be extended by
the Government of Japan to the Philippines; and (2) a document denominated as Records of
Discussion where the salient terms of the loans as set forth by the Government of Japan, through
the Japanese delegation, were reiterated and the said terms were accepted by the Philippine
delegation. Both Ambassador Ara and then Secretary Siazon signed the Records of Discussion as
representatives of the Government of Japan and Philippine Government, respectively.

The Exchange of Notes provided that the loans to be extended by the Government of Japan to the
Philippines consisted of two loans: Loan I and Loan II. The Exchange of Notes stated in part:

1. A loan in Japanese yen up to the amount of seventy-nine billion eight hundred and
sixty-one million yen (Y79,861,000,000) (hereinafter referred to as "the Loan I") will be
extended, in accordance with the relevant laws and regulations of Japan, to the
Government of the Republic of the Philippines (hereinafter referred to as "the Borrower
I") by the Japan Bank for International Cooperation (hereinafter referred to as "the
Bank") to implement the projects enumerated in the List A attached hereto (hereinafter
referred to as "the List A") according to the allocation for each project as specified in the
List A.

2. (1) The Loan I will be made available by loan agreements to be concluded between the
Borrower I and the Bank. The terms and conditions of the Loan I as well as the procedure
for its utilization will be governed by said loan agreements which will contain, inter alia,
the following principles:

...

(2) Each of the loan agreements mentioned in sub-paragraph (1) above will be
concluded after the Bank is satisfied of the feasibility, including environmental
consideration, of the project to which such loan agreement relates.

3. (1) The Loan I will be made available to cover payments to be made by the Philippine
executing agencies to suppliers, contractors and/or consultants of eligible source
countries under such contracts as may be entered into between them for purchases of
products and/or services required for the implementation of the projects enumerated in
the List A, provided that such purchases are made in such eligible source countries for
products produced in and/or services supplied from those countries.

(2) The scope of eligible source countries mentioned in sub-paragraph (1) above
will be agreed upon between the authorities concerned of the two Governments.

(3) A part of the Loan I may be used to cover eligible local currency requirements
for the implementation of the projects enumerated in the List A.

4. With regard to the shipping and marine insurance of the products purchased under the
Loan I, the Government of the Republic of the Philippines will refrain from imposing any
restrictions that may hinder fair and free competition among the shipping and marine
insurance companies.

x x x x2 1awphi1.net

Pertinently, List A, which specified the projects to be financed under the Loan I, includes the
Arterial Road Links Development Project (Phase IV), to wit:

LIST A

Maximum amount in million yen)

1. Secondary Education Development and Improvement Project 7,210

2. Rural Water Supply Project (Phase V) 951

3. Bohol Irrigation Project (Phase II) 6,078

4. Agrarian Reform Infrastructure Support Project (Phase II) 16,990

5. Arterial Road Links Development Project (Phase IV) 15,384

6. Cordillera Road Improvement Project 5,852

7. Philippines-Japan Friendship Highway Mindanao Section Rehabilitation Project


(Phase II) 7,434

8. Rehabilitation and Maintenance of Bridges Along Arterial Roads Project (Phase IV)
5,068

9. Maritime Safety Improvement Project (Phase C) 4,714

10. Pinatubo Hazard Urgent Mitigation Project (Phase II) 9,013


11. Pasig-Marikina River Channel Improvement Project (Phase I) 1,167

Total 79,8613

The Exchange of Notes further provided that:

III

xxxx

3. The Government of the Republic of the Philippines will ensure that the products and/or
services mentioned in sub-paragraph (1) of paragraph 3 of Part I and sub-paragraph (1) of
paragraph 4 of Part II are procured in accordance with the guidelines for procurement of the
Bank, which set forth, inter alia, the procedures of international tendering to be followed except
where such procedures are inapplicable or inappropriate.

x x x x4

The Records of Discussion, which formed part of the Exchange of Notes, also stated in part,
thus:

xxxx

1. With reference to sub-paragraph (3) of paragraph 3 of Part I of the Exchange of Notes


concerning the financing of eligible local currency requirements for the implementation of the
projects mentioned in the said sub-paragraph, the representative of the Japanese delegation stated
that:

(1) such requirement of local currency as general administrative expenses, interest during
construction, taxes and duties, expenses concerning office, remuneration to employees of
the executing agencies and housing, not directly related to the implementation of the said
projects, as well as purchase of land properties, compensation and the like, however, will
not be considered as eligible for financing under the Loan I; and

(2) the procurement of products and/or services will be made in accordance with the
procedures of international competitive tendering except where such procedures are
inapplicable and inappropriate.

x x x x5

Thus, in accordance with the agreement reached by the Government of Japan and the Philippine
Government, as expressed in the Exchange of Notes between the representatives of the two
governments, the Philippines obtained from and was granted a loan by the JBIC. Loan
Agreement No. PH-P204 dated December 28, 1999, in particular, stated as follows:
Loan Agreement No. PH-P204, dated December 28, 1999, between JAPAN BANK FOR
INTERNATIONAL COOPERATION and the GOVERNMENT OF THE REPUBLIC OF THE
PHILIPPINES.

In the light of the contents of the Exchange of Notes between the Government of Japan and the
Government of the Republic of the Philippines dated December 27, 1999, concerning Japanese
loans to be extended with a view to promoting the economic stabilization and development
efforts of the Republic of the Philippines.

JAPAN BANK FOR INTERNATIONAL COOPERATION (hereinafter referred to as "the


BANK") and THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES (hereinafter
referred to as "the Borrower") herewith conclude the following Loan Agreement (hereinafter
referred to as "the Loan Agreement", which includes all agreements supplemental hereto).

x x x x6

Under the terms and conditions of Loan Agreement No. PH-P204, JBIC agreed to lend the
Philippine Government an amount not exceeding FIFTEEN BILLION THREE HUNDRED
EIGHTY-FOUR MILLION Japanese Yen (Y 15,384,000,000) as principal for the
implementation of the Arterial Road Links Development Project (Phase IV) on the terms and
conditions set forth in the Loan Agreement and in accordance with the relevant laws and
regulations of Japan.7 The said amount shall be used for the purchase of eligible goods and
services necessary for the implementation of the above-mentioned project from suppliers,
contractors or consultants.8

Further, it was provided under the said loan agreement that other terms and conditions generally
applicable thereto shall be set forth in the General Terms and Conditions, dated November 1987,
issued by the Overseas Economic Cooperation Fund (OECF) and for the purpose, reference to
"the OECF" and "Fund" therein (General Terms and Conditions) shall be substituted by "the
JBIC" and "Bank," respectively.9 Specifically, the guidelines for procurement of all goods and
services to be financed out of the proceeds of the said loan shall be as stipulated in the
Guidelines for Procurement under OECF Loans dated December 1997 (herein referred to as
JBIC Procurement Guidelines).10

As mentioned earlier, the proceeds of Loan Agreement No. PH-P204 was to be used to finance
the Arterial Road Links Development Project (Phase IV), of which the Catanduanes
Circumferential Road was a part. This road section, in turn, was divided into four contract
packages (CP):

CP I: San Andres (Codon)-Virac-Jct. Bato- Viga Road - 79.818 kms

CP II: Viga-Bagamanoc Road - 10.40 kms.

CP III: Bagamanoc-Pandan Road - 47.50 kms.

CP IV: Pandan-Caramoran-Codon Road - 66.40 kms.11


Subsequently, the DPWH, as the government agency tasked to implement the project, caused the
publication of the "Invitation to Prequalify and to Bid" for the implementation of the CP I project
in two leading national newspapers, namely, the Manila Times and Manila Standard on
November 22 and 29, and December 5, 2002.

A total of twenty-three (23) foreign and local contractors responded to the invitation by
submitting their accomplished prequalification documents on January 23, 2003. In accordance
with the established prequalification criteria, eight contractors were evaluated or considered
eligible to bid as concurred by the JBIC. One of them, however, withdrew; thus, only seven
contractors submitted their bid proposals.

The bid documents submitted by the prequalified contractors/bidders were examined to


determine their compliance with the requirements as
stipulated in Article 6 of the Instruction to Bidders.12 After the lapse of the deadline for the
submission of bid proposals, the opening of the bids commenced immediately. Prior to the
opening of the respective bid proposals, it was announced that the Approved Budget for the
Contract (ABC) was in the amount of P738,710,563.67.

The result of the bidding revealed the following three lowest bidders and their respective bids
vis--vis the ABC:13

Original Bid As Read As-Corrected Bid


Name of Bidder Variance
(Pesos) Amount (Pesos)

1) China Road And Bridge


P 993,183,904.98 P952,564,821.71 28.95%
Corporation

2) Cavite Ideal Intl Const.


P1,099,926,598.11 P1,099,926,598.11 48.90%
Devt. Corp.

3) Italian Thai Devt.


P1,125,022,075.34 P1,125,392,475.36 52.35%
Public Company, Ltd.

The bid of private respondent China Road & Bridge Corporation was corrected from the original
P993,183,904.98 (with variance of 34.45% from the ABC) to P952,564,821.71 (with variance of
28.95% from the ABC) based on their letter clarification dated April 21, 2004.14

After further evaluation of the bids, particularly those of the lowest three bidders, Mr. Hedifume
Ezawa, Project Manager of the Catanduanes Circumferential Road Improvement Project
(CCRIP), in his Contractors Bid Evaluation Report dated April 2004, recommended the award
of the contract to private respondent China Road & Bridge Corporation:

In accordance with the Guidelines for the Procurements under ODA [Official Development
Assistance] Loans, the Consultant hereby recommends the award of the contract for the
construction of CP I, San Andres (Codon) Virac Jct. Bato Viga Section under the Arterial
Road Links Development Projects, Phase IV, JBIC Loan No. PH-P204 to the Lowest Complying
Bidder, China Road and Bridge Corporation, at its total corrected bid amount of Nine Hundred
Fifty-Two Million Five Hundred Sixty-Four Thousand Eight Hundred Twenty-One & 71/100
Pesos.15

The BAC of the DPWH, with the approval of then Acting Secretary Soriquez, issued the assailed
Resolution No. PJHL-A-04-012 dated May 7, 2004 recommending the award in favor of private
respondent China Road & Bridge Corporation of the contract for the implementation of civil
works for CP I, San Andres (Codon) Virac Jct. Bato Viga Road (Catanduanes
Circumferential Road Improvement Project) of the Arterial Roads Links Development Project,
Phase IV, located in Catanduanes Province, under JBIC Loan Agreement No. PH-P204.16 On
September 29, 2004, a Contract of Agreement was entered into by and between the DPWH and
private respondent China Road & Bridge Corporation for the implementation of the CP I project.

The Parties

Petitioner Plaridel M. Abaya claims that he filed the instant petition as a taxpayer, former
lawmaker, and a Filipino citizen. Petitioner Plaridel C. Garcia likewise claims that he filed the
suit as a taxpayer, former military officer, and a Filipino citizen. Petitioner PMA 59 Foundation,
Inc., on the other hand, is a non-stock, non-profit corporation organized under the existing
Philippine laws. It claims that its members are all taxpayers and alumni of the Philippine Military
Academy. It is represented by its President, Carlos L. Agustin.

Named as public respondents are the DPWH, as the government agency tasked with the
implementation of government infrastructure projects; the Department of Budget and
Management (DBM) as the government agency that authorizes the release and disbursement of
public funds for the implementation of government infrastructure projects; and the Department
of Finance (DOF) as the government agency that acts as the custodian and manager of all
financial resources of the government. Also named as individual public respondents are
Hermogenes E. Ebdane, Jr., Emilia T. Boncodin and Cesar V. Purisima in their capacities as
former Secretaries of the DPWH, DBM and DOF, respectively. On the other hand, public
respondent Norma L. Lasala was impleaded in her capacity as Treasurer of the Bureau of
Treasury.

Private respondent China Road & Bridge Corporation is a duly organized corporation engaged in
the business of construction.

The Petitioners Case

The petitioners mainly seek to nullify DPWH Resolution No. PJHL-A-04-012 dated May 7,
2004, which recommended the award to private respondent China Road & Bridge Corporation of
the contract for the implementation of the civil works of CP I. They also seek to annul the
contract of agreement subsequently entered into by and between the DPWH and private
respondent China Road & Bridge Corporation pursuant to the said resolution.

They pose the following issues for the Courts resolution:


I. Whether or not Petitioners have standing to file the instant Petition.

II. Whether or not Petitioners are entitled to the issuance of a Writ of Certiorari reversing
and setting aside DPWH Resolution No. PJHL-A-04-012, recommending the award of
the Contract Agreement for the implementation of civil works for CPI, San Andres
(CODON)-VIRAC-JCT BATO-VIGA ROAD (CATANDUANES CIRCUMFERENTIAL
ROAD IMPROVEMENT PROJECT) of the Arterial Road Links Development Project,
Phase IV, located in Catanduanes Province, under JBIC L/A No. PH-P204, to China Road
& Bridge Corporation.

III. Whether or not the Contract Agreement executed by and between the Republic of the
Philippines, through the Department of Public Works and Highways, and the China Road
& Bridge Corporation, for the implementation of civil works for CPI, San Andres
(CODON)-VIRAC-JCT BATO-VIGA ROAD (CATANDUANES CIRCUMFERENTIAL
ROAD IMPROVEMENT PROJECT) of the Arterial Road Links Development Project,
Phase IV, located in Catanduanes Province, under JBIC L/A No. PH-P204, is void ab
initio.

IV. Whether or not Petitioners are entitled to the issuance of a Writ of Prohibition
permanently prohibiting the implementation of DPWH Resolution No. PJHL-A-04-012
and the Contract Agreement executed by and between the Republic of the Philippines
(through the Department of Public Works and Highways) and the China Road & Bridge
Corporation, and the disbursement of public funds by the [D]epartment of [B]udget and
[M]anagement for such purpose.

V. Whether or not Petitioners are entitled to a Preliminary Injunction and/or a Temporary


Restraining Order immediately enjoining the implementation of DPWH Resolution No.
PJHL-A-04-012 and the Contract Agreement executed by and between the Republic of
the Philippines (through the Department of Public Works and Highways) and the China
Road & Bridge Corporation, and the disbursement of public funds by the Department of
Budget and Management for such purpose, during the pendency of this case.17

Preliminarily, the petitioners assert that they have standing or locus standi to file the instant
petition. They claim that as taxpayers and concerned citizens, they have the right and duty to
question the expenditure of public funds on illegal acts. They point out that the Philippine
Government allocates a peso-counterpart for CP I, which amount is appropriated by Congress in
the General Appropriations Act; hence, funds that are being utilized in the implementation of the
questioned project also partake of taxpayers money. The present action, as a taxpayers suit, is
thus allegedly proper.

They likewise characterize the instant petition as one of transcendental importance that warrants
the Courts adoption of a liberal stance on the issue of standing. It cited several cases where the
Court brushed aside procedural technicalities in order to resolve issues involving paramount
public interest and transcendental importance.18 Further, petitioner Abaya asserts that he
possesses the requisite standing as a former member of the House of Representatives and one of
the principal authors of Republic Act No. 9184 (RA 9184)19 known as the Government
Procurement Reform Act, the law allegedly violated by the public respondents.

On the substantive issues, the petitioners anchor the instant petition on the contention that the
award of the contract to private respondent China Road & Bridge Corporation violates RA 9184,
particularly Section 31 thereof which reads:

SEC. 31. Ceiling for Bid Prices. The ABC shall be the upper limit or ceiling for the Bid prices.
Bid prices that exceed this ceiling shall be disqualified outright from further participating in the
bidding. There shall be no lower limit to the amount of the award.

In relation thereto, the petitioners cite the definition of the ABC, thus:

SEC. 5. Definition of Terms.

xxx

(a) Approved Budget for the Contract (ABC). refers to the budget for the contract duly
approved by the Head of the Procuring Entity, as provided for in the General Appropriations Act
and/or continuing appropriations, in the case of National Government Agencies; the Corporate
Budget for the contract approved by the governing Boards, pursuant to E.O. No. 518, series of
1979, in the case of Government-Owned and/or Controlled Corporations, Government Financial
Institutions and State Universities and Colleges; and the Budget for the contract approved by the
respective Sanggunian, in the case of Local Government Units.

xxx

The petitioners theorize that the foregoing provisions show the mandatory character of ceilings
or upper limits of every bid. Under the above-quoted provisions of RA 9184, all bids or awards
should not exceed the ceilings or upper limits; otherwise, the contract is deemed void and
inexistent.

Resolution No. PJHL-A-04-012 was allegedly issued with grave abuse of discretion because it
recommended the award of the contract to private respondent China Road & Bridge Corporation
whose bid was more than P200 million overpriced based on the ABC. As such, the award is
allegedly illegal and unconscionable.

In this connection, the petitioners opine that the contract subsequently entered into by and
between the DPWH and private respondent China Road & Bridge Corporation is void ab initio
for being prohibited by RA 9184. They stress that Section 31 thereof expressly provides that "bid
prices that exceed this ceiling shall be disqualified outright from participating in the bidding."
The upper limit or ceiling is called the ABC and since the bid of private respondent China Road
& Bridge Corporation exceeded the ABC for the CP I project, it should have been allegedly
disqualified from the bidding process and should not, by law, have been awarded the said
contract. They invoke Article 1409 of the Civil Code:
ART. 1409. The following contracts are inexistent and void from the beginning:

(1) Those whose cause, object or purpose is contrary to law, morals, good customs, public
order or public policy;

(2) Those which are absolutely simulated or fictitious;

(3) Those whose cause or object did not exist at the time of the transaction;

(4) Those whose object is outside the commerce of men;

(5) Those which contemplate an impossible service;

(6) Those where the intention of the parties relative to the principal object of the contract
cannot be ascertained;

(7) Those expressly prohibited or declared void by law.

For violating the above provision, the contract between the DPWH and private respondent China
Road & Bridge Corporation is allegedly inexistent and void ab initio and can produce no effects
whatsoever.

It is the contention of the petitioners that RA 9184 is applicable to both local- and foreign-funded
procurement contracts. They cite the following excerpt of the deliberations of the Bicameral
Conference Committee on the Disagreeing Provisions of Senate Bill No. 2248 and House Bill
No. 4809:20

REP. ABAYA. Mr. Chairman, can we just propose additional amendments? Can we go back to
Section 4, Mr. Chairman?

THE CHAIRMAN (SEN. ANGARA). Section? Section ano, Del, 4? Definition definition of
terms.

REP. ABAYA. Sa House bill, it is sa scope and application.

THE CHAIRMAN (SEN. ANGARA). Okay.

REP. ABAYA. It should read as follows: "This Act shall apply to the procurement of goods,
supplies and materials, infrastructure projects and consulting services regardless of funding
source whether local or foreign by the government."

THE CHAIRMAN (SEN. ANGARA). Okay, accepted. We accept. The Senate accepts it.21

xxx xxx xxx


THE CHAIRMAN (SEN ANGARA). Just take note of that ano. Medyo nga problematic yan eh.
Now, just for the record Del, can you repeat again the justification for including foreign funded
contracts within the scope para malinaw because the World Bank daw might raise some objection
to it.

REP. ABAYA. Well, Mr. Chairman, we should include foreign funded projects kasi these are the
big projects. To give an example, if you allow bids above government estimate, lets say take the
case of 500 million project, included in that 500 million is the 20 percent profit. If you allow
them to bid above government estimate, they will add another say 28 percent of (sic) 30 percent,
30 percent of 500 million is another 150 million. Ito, this is a rich source of graft money,
aregluhan na lang, 150 million, five contractors will gather, "O eto 20 million, 20 million, 20
million." So, it is rigged. Yun ang practice na nangyayari. If we eliminate that, if we have a
ceiling then, it will not be very tempting kasi walang extra money na pwedeng ibigay sa ibang
contractor. So this promote (sic) collusion among bidders, of course, with the cooperation of
irresponsible officials of some agencies. So we should have a ceiling to include foreign funded
projects.22

The petitioners insist that Loan Agreement No. PH-P204 between the JBIC and the Philippine
Government is neither a treaty, an international nor an executive agreement that would bar the
application of RA 9184. They point out that to be considered a treaty, an international or an
executive agreement, the parties must be two sovereigns or States whereas in the case of Loan
Agreement No. PH-P204, the parties are the Philippine Government and the JBIC, a banking
agency of Japan, which has a separate juridical personality from the Japanese Government.

They further insist on the applicability of RA 9184 contending that while it took effect on
January 26, 200323 and Loan Agreement No. PH-P204 was executed prior thereto or on
December 28, 1999, the actual procurement or award of the contract to private respondent China
Road & Bridge Corporation was done after the effectivity of RA 9184. The said law is allegedly
specific as to its application, which is on the actual procurement of infrastructure and other
projects only, and not on the loan agreements attached to such projects. Thus, the petition only
prays for the annulment of Resolution No. PJHL-A-04-012 as well as the contract between the
DPWH and private respondent China Road & Bridge Corporation. The petitioners clarify that
they do not pray for the annulment of Loan Agreement No. PH-P204. Since the subject
procurement and award of the contract were done after the effectivity of RA 9184, necessarily,
the procurement rules established by that law allegedly apply, and not Presidential Decree No.
1594 (PD 1594)24 and Executive Order No. 40 (EO 40), series of 2001, 25 as contended by the
respondents. The latter laws, including their implementing rules, have allegedly been repealed by
RA 9184. Even RA 4860, as amended, known as the Foreign Borrowings Act, the petitioners
posit, may have also been repealed or modified by RA 9184 insofar as its provisions are
inconsistent with the latter.

The petitioners also argue that the "Implementing Rules and Regulations (IRR) of RA 9184,
Otherwise Known as the Government Procurement Reform Act, Part A" (IRR-A) cited by the
respondents is not applicable as these rules only govern domestically-funded procurement
contracts. They aver that the implementing rules to govern foreign-funded procurement, as in the
present case, have yet to be drafted and in fact, there are concurrent resolutions drafted by both
houses of Congress for the Reconvening of the Joint Congressional Oversight Committee for the
formulation of the IRR for foreign-funded procurements under RA 9184.

The petitioners maintain that disbursement of public funds to implement a patently void and
illegal contract is itself illegal and must be enjoined. They bring to the Courts attention the fact
that the works on the CP I project have already commenced as early as October 2004. They thus
urge the Court to issue a writ of certiorari to set aside Resolution No. PJHL-A-04-012 as well as
to declare null and void the contract entered into between the DPWH and private respondent
China Road & Bridge Corporation. They also pray for the issuance of a temporary restraining
order and, eventually, a writ of prohibition to permanently enjoin the DPWH from implementing
Resolution No. PJHL-A-04-012 and its contract with private respondent China Road & Bridge
Corporation as well as the DBM from disbursing funds for the said purpose.

The Respondents Counter-Arguments

The public respondents, namely the DPWH, DBM and DOF, and their respective named
officials, through the Office of the Solicitor General, urge the Court to dismiss the petition on
grounds that the petitioners have no locus standi and, in any case, Resolution No. PJHL-A-04-
012 and the contract between the DPWH and private respondent China Road & Bridge
Corporation are valid.

According to the public respondents, a taxpayers locus standi was recognized in the following
cases: (a) where a tax measure is assailed as unconstitutional;26 (b) where there is a question of
validity of election laws;27 (c) where legislators questioned the validity of any official action
upon the claim that it infringes on their prerogatives as legislators;28 (d) where there is a claim of
illegal disbursement or wastage of public funds through the enforcement of an invalid or
unconstitutional law;29 (e) where it involves the right of members of the Senate or House of
Representatives to question the validity of a presidential veto or condition imposed on an item in
an appropriation bill;30 or (f) where it involves an invalid law, which when enforced will put the
petitioner in imminent danger of sustaining some direct injury as a result thereof, or 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.31 None
of the above considerations allegedly obtains in the present case.

It is also the view of the public respondents that the fact that petitioner Abaya was a former
lawmaker would not suffice to confer locus standi on himself. Members of Congress may
properly challenge the validity of an official act of any department of the government only upon
showing that the assailed official act affects or impairs their rights and prerogatives as legislators.

The public respondents further assail the standing of the petitioners to file the instant suit
claiming that they failed to allege any specific injury suffered nor an interest that is direct and
personal to them. If at all, the interest or injuries claimed by the petitioners are allegedly merely
of a general interest common to all members of the public. Their interest is allegedly too vague,
highly speculative and uncertain to satisfy the requirements of locus standi.
The public respondents find it noteworthy that the petitioners do not raise issues of
constitutionality but only of contract law, which the petitioners not being privies to the
agreement cannot raise. This is following the principle that a stranger to a contract cannot sue
either or both the contracting parties to annul and set aside the same except when he is
prejudiced on his rights and can show detriment which would positively result to him from the
implementation of the contract in which he has no intervention. There being no particularized
interest or elemental substantial injury necessary to confer locus standi, the public respondents
implore the Court to dismiss the petition.

On the merits, the public respondents maintain that the imposition of ceilings or upper limits on
bid prices in RA 9184 does not apply because the CP I project and the entire Catanduanes
Circumferential Road Improvement Project, financed by Loan Agreement No. PH-P204 executed
between the Philippine Government and the JBIC, is governed by the latters Procurement
Guidelines which precludes the imposition of ceilings on bid prices. Section 5.06 of the JBIC
Procurement Guidelines reads:

Section 5.06. Evaluation and Comparison of Bids.

xxx

(e) Any procedure under which bids above or below a predetermined bid value assessment are
automatically disqualified is not permitted.

It was explained that other foreign banks such as the Asian Development Bank (ADB) and the
World Bank (WB) similarly prohibit the bracketing or imposition of a ceiling on bid prices.

The public respondents stress that it was pursuant to Loan Agreement No. PH-P204 that the
assailed Resolution No. PJHL-A-04-012 and the subsequent contract between the DPWH and
private respondent China Road & Bridge Corporation materialized. They likewise aver that Loan
Agreement No. PH-P204 is governed by RA 4860, as amended, or the Foreign Borrowings Act.
Section 4 thereof states:

SEC. 4. In the contracting of any loan, credit or indebtedness under this Act, the President of the
Philippines may, when necessary, agree to waive or modify, the application of any law granting
preferences or imposing restrictions on international competitive bidding, including among
others [Act No. 4239, Commonwealth Act No. 138], the provisions of [CA 541], insofar as such
provisions do not pertain to constructions primarily for national defense or security purposes,
[RA 5183]; Provided, however, That as far as practicable, utilization of the services of qualified
domestic firms in the prosecution of projects financed under this Act shall be encouraged:
Provided, further, That in case where international competitive bidding shall be conducted
preference of at least fifteen per centum shall be granted in favor of articles, materials or supplies
of the growth, production or manufacture of the Philippines: Provided, finally, That the method
and procedure in comparison of bids shall be the subject of agreement between the Philippine
Government and the lending institution.
DOJ Opinion No. 46, Series of 1987, is relied upon by the public respondents as it opined that an
agreement for the exclusion of foreign assisted projects from the coverage of local bidding
regulations does not contravene existing legislations because the statutory basis for foreign loan
agreements is RA 4860, as amended, and under Section 4 thereof, the President is empowered to
waive the application of any law imposing restrictions on the procurement of goods and services
pursuant to such loans.

Memorandum Circular Nos. 104 and 108, issued by the President, to clarify RA 4860, as
amended, and PD 1594, relative to the award of foreign-assisted projects, are also invoked by the
public respondents, to wit:

Memorandum Circular No. 104:

In view of the provisions of Section 4 of Republic Act No. 4860, as amended, otherwise known
as the "Foreign Borrowings Act"

xxx

It is hereby clarified that foreign-assisted infrastructure projects may be exempted from the
application for the pertinent provisions of the Implementing Rules and Regulations (IRR) of
Presidential Decree (P.D.) No. 1594 relative to the method and procedure in the comparison of
bids, which matter may be the subject of agreement between the infrastructure agency concerned
and the lending institution. It should be made clear however that public bidding is still required
and can only be waived pursuant to existing laws.

Memorandum Circular No. 108:

In view of the provisions of Section 4 of Republic Act No. 4860, as amended, otherwise known
as the "Foreign Borrowings Act", it is hereby clarified that, for projects supported in whole or in
part by foreign assistance awarded through international or local competitive bidding, the
government agency concerned may award the contract to the lowest evaluated bidder at his bid
price consistent with the provisions of the applicable loan/grant agreement.

Specifically, when the loan/grant agreement so stipulates, the government agency concerned may
award the contract to the lowest bidder even if his/its bid exceeds the approved agency estimate.

It is understood that the concerned government agency shall, as far as practicable, adhere closely
to the implementing rules and regulations of Presidential Decree No. 1594 during loan/grant
negotiation and the implementation of the projects.32

The public respondents characterize foreign loan agreements, including Loan Agreement No.
PH-P204, as executive agreements and, as such, should be observed pursuant to the fundamental
principle in international law of pacta sunt servanda.33 They cite Section 20 of Article VII of the
Constitution as giving the President the authority to contract foreign loans:
SEC. 20. The President may contract or guarantee foreign loans on behalf of the Republic of the
Philippines with the prior concurrence of the Monetary Board, and subject to such limitations as
may be provided by law. The Monetary Board shall, within thirty days from the end of every
quarter of the calendar year, submit to the Congress a complete report of its decisions on
applications for loans to be contracted or guaranteed by the Government or Government-owned
and Controlled Corporations which would have the effect of increasing the foreign debt, and
containing other matters as may be provided by law.

The Constitution, the public respondents emphasize, recognizes the enforceability of executive
agreements in the same way that it recognizes generally accepted principles of international law
as forming part of the law of the land.34 This recognition allegedly buttresses the binding effect
of executive agreements to which the Philippine Government is a signatory. It is pointed out by
the public respondents that executive agreements are essentially contracts governing the rights
and obligations of the parties. A contract, being the law between the parties, must be faithfully
adhered to by them. Guided by the fundamental rule of pacta sunt servanda, the Philippine
Government bound itself to perform in good faith its duties and obligations under Loan
Agreement No. PH-P204.

The public respondents further argue against the applicability of RA 9184 stating that it was
signed into law on January 10, 2003.35 On the other hand, Loan Agreement No. PH-P204 was
executed on December 28, 1999, where the laws then in force on government procurements were
PD 1594 and EO 40. The latter law (EO 40), in particular, excluded from its application "any
existing and future government commitments with respect to the bidding and award of contracts
financed partly or wholly with funds from international financing institutions as well as from
bilateral and other similar foreign sources."

The applicability of EO 40, not RA 9184, is allegedly bolstered by the fact that the "Invitation to
Prequalify and to Bid" for the implementation of the CP I project was published in two leading
national newspapers, namely, the Manila Times and Manila Standard on November 22, 29 and
December 5, 2002, or before the signing into law of RA 9184 on January 10, 2003. In this
connection, the public respondents point to Section 77 of IRR-A, which reads:

SEC. 77. Transitory Clause.

In all procurement activities, if the advertisement or invitation for bids was issued prior to the
effectivity of the Act, the provisions of EO 40 and its IRR, PD 1594 and its IRR, RA 7160 and its
IRR, or other applicable laws as the case may be, shall govern.

In cases where the advertisements or invitations for bids were issued after the effectivity of the
Act but before the effectivity of this IRR-A, procuring entities may continue adopting the
procurement procedures, rules and regulations provided in EO 40 and its IRR, or other applicable
laws, as the case may be.

Section 4 of RA 9184 is also invoked by the public respondents as it provides:


SEC. 4. Scope and Applications. This Act shall apply to the Procurement of Infrastructure
Projects, Goods and Consulting Services, regardless of source of funds, whether local or foreign,
by all branches and instrumentalities of government, its departments, offices and agencies,
including government-owned and/or controlled corporations and local government units,
subject to the provisions of Commonwealth Act No. 138. Any treaty or international or executive
agreement affecting the subject matter of this Act to which the Philippine government is a
signatory shall be observed.

It is also the position of the public respondents that even granting arguendo that Loan Agreement
No. PH-P204 were an ordinary loan contract, still, RA 9184 is inapplicable under the non-
impairment clause36 of the Constitution. The said loan agreement expressly provided that the
procurement of goods and services for the project financed by the same shall be governed by the
Guidelines for Procurement under OECF Loans dated December 1997. Further, Section 5.06 of
the JBIC Procurement Guidelines categorically provides that "[a]ny procedure under which bids
above or below a predetermined bid value assessment are automatically disqualified is not
permitted."

The public respondents explain that since the contract is the law between the parties and Loan
Agreement No. PH-P204 states that the JBIC Procurement Guidelines shall govern the parties
relationship and further dictates that there be no ceiling price for the bidding, it naturally follows
that any subsequent law passed contrary to the letters of the said contract would have no effect
with respect to the parties rights and obligations arising therefrom.

To insist on the application of RA 9184 on the bidding for the CP I project would,
notwithstanding the terms and conditions of Loan Agreement No. PH-P204, allegedly violate the
constitutional provision on non-impairment of obligations and contracts, and destroy vested
rights duly acquired under the said loan agreement.

Lastly, the public respondents deny that there was illegal disbursement of public funds by the
DBM. They asseverate that all the releases made by the DBM for the implementation of the
entire Arterial Road Links Project Phase IV, which includes the Catanduanes Circumferential
Road Improvement Project, were covered by the necessary appropriations made by law,
specifically the General Appropriations Act (GAA). Further, the requirements and procedures
prescribed for the release of the said funds were duly complied with.

For its part, private respondent China Road & Bridge Corporation similarly assails the standing
of the petitioners, either as taxpayers or, in the case of petitioner Abaya, as a former lawmaker, to
file the present suit. In addition, it is also alleged that, by filing the petition directly to this Court,
the petitioners failed to observe the hierarchy of courts.

On the merits, private respondent China Road & Bridge Corporation asserts that the applicable
law to govern the bidding of the CP I project was EO 40, not RA 9184, because the former was
the law governing the procurement of government projects at the time that it was bidded out. EO
40 was issued by the Office of the President on October 8, 2001 and Section 1 thereof states that:
SEC. 1. Scope and Application. This Executive Order shall apply to the procurement of: (a)
goods, supplies, materials and related services; (b) civil works; and (c) consulting services, by all
National Government agencies, including State Universities and Colleges (SUCs), Government-
Owned or Controlled Corporations (GOCCs) and Government Financial Institutions (GFIs),
hereby referred to as the Agencies. This Executive Order shall cover the procurement process
from the pre-procurement conference up to the award of contract.

xxx

The Invitation to Prequalify and to Bid was first published on November 22, 2002. On the other
hand, RA 9184 was signed into law only on January 10, 2003. Since the law in effect at the time
the procurement process was initiated was EO 40, private respondent China Road & Bridge
Corporation submits that it should be the said law which should govern the entire procurement
process relative to the CP I project.

EO 40 expressly recognizes as an exception from the application of the provisions thereof on


approved budget ceilings, those projects financed by international financing institutions (IFIs)
and foreign bilateral sources. Section 1 thereof, quoted in part earlier, further states:

SEC. 1. Scope and Application. x x x

Nothing in this Order shall negate any existing and future government commitments with respect
to the bidding and award of contracts financed partly or wholly with funds from international
financing institutions as well as from bilateral and other similar foreign sources.

Section 1.2 of the Implementing Rules and Regulations of EO 40 is likewise invoked as it


provides:

For procurement financed wholly or partly from Official Development Assistance (ODA) funds
from International Financing Institutions (IFIs), as well as from bilateral and other similar
foreign sources, the corresponding loan/grant agreement governing said funds as negotiated and
agreed upon by and between the Government and the concerned IFI shall be observed.

Private respondent China Road & Bridge Corporation thus postulates that following EO 40, the
procurement of goods and services for the CP I project should be governed by the terms and
conditions of Loan Agreement No. PH-P204 entered into between the JBIC and the Philippine
Government. Pertinently, Section 5.06 of the JBIC Procurement Guidelines prohibits the setting
of ceilings on bid prices.

Private respondent China Road & Bridge Corporation claims that when it submitted its bid for
the CP I project, it relied in good faith on the provisions of EO 40. It was allegedly on the basis
of the said law that the DPWH awarded the project to private respondent China Road & Bridge
Coporation even if its bid was higher than the ABC. Under the circumstances, RA 9184 could not
be applied retroactively for to do so would allegedly impair the vested rights of private
respondent China Road & Bridge Corporation arising from its contract with the DPWH.
It is also contended by private respondent China Road & Bridge Corporation that even assuming
arguendo that RA 9184 could be applied retroactively, it is still the terms of Loan Agreement No.
PH-P204 which should govern the procurement of goods and services for the CP I project. It
supports its theory by characterizing the said loan agreement, executed pursuant to the Exchange
of Notes between the Government of Japan and the Philippine Government, as an executive
agreement.

Private respondent China Road & Bridge Corporation, like the public respondents, cites RA 4860
as the basis for the Exchange of Notes and Loan Agreement No. PH-P204. As an international or
executive agreement, the Exchange of Notes and Loan Agreement No. PH-P204 allegedly
created a legally binding obligation on the parties.

The following excerpt of the deliberations of the Bicameral Conference Committee on the
Disagreeing Provision of Senate Bill No. 2248 and House Bill No. 4809 is cited by private
respondent China Road & Bridge Corporation to support its contention that it is the intent of the
lawmakers to exclude from the application of RA 9184 those foreign-funded projects:

xxx

REP. MARCOS. Yes, Mr. Chairman, to respond and to put into the record, a justification for the
inclusion of foreign contracts, may we just state that foreign contracts have, of course, been
brought into the ambit of the law because of the Filipino counterpart for this foreign projects,
they are no longer strictly foreign in nature but fall under the laws of the Philippine government.

THE CHAIRMAN (SEN. ANGARA). Okay. I think thats pretty clear. I think the possible
concern is that some ODA are with strings attached especially the Japanese. The Japanese are
quite strict about that, that they are (sic) even provide the architect and the design, etcetera, plus,
of course, the goods that will be supplied.

Now, I think weve already provided that this is open to all and we will recognize our
international agreements so that this bill will not also restrict the flow of foreign funding,
because some countries now make it a condition that they supply both services and goods
especially the Japanese.

So I think we can put a sentence that we continue to honor our international obligations, di ba
Laura?

MR. ENCARNACION. Actually, subject to any treaty.

THE CHAIRMAN (SEN. ANGARA). Yun pala eh. That should allay their anxiety and concern.
Okay, buti na lang for the record para malaman nila na we are conscious sa ODA.37

Private respondent China Road & Bridge Corporation submits that based on the provisions of the
Exchange of Notes and Loan Agreement No. PH-P204, it was rightfully and legally awarded the
CP I project. It urges the Court to dismiss the petition for lack of merit.
The Courts Rulings

Petitioners, as taxpayers, possess locus standi to file the present suit

Briefly stated, locus standi is "a right of appearance in a court of justice on a given question."38
More particularly, it is a partys personal and substantial interest in a case such that he has
sustained or will sustain direct injury as a result of the governmental act being challenged. It
calls for more than just a generalized grievance. The term "interest" means a material interest, an
interest in issue affected by the decree, as distinguished from mere interest in the question
involved, or a mere incidental interest.39 Standing or locus standi is a peculiar concept in
constitutional law40 and the rationale for requiring a party who challenges the constitutionality of
a statute to allege such a personal stake in the outcome of the controversy is "to assure that
concrete adverseness which sharpens the presentation of issues upon which the court so largely
depends for illumination of difficult constitutional questions."41

Locus standi, however, is merely a matter of procedure42 and it has been recognized that in some
cases, suits are not brought by parties who have been personally injured by the operation of a law
or any other government act but by concerned citizens, taxpayers or voters who actually sue in
the public interest.43 Consequently, the Court, in a catena of cases,44 has invariably adopted a
liberal stance on locus standi, including those cases involving taxpayers.

The prevailing doctrine in taxpayers suits is to allow taxpayers to question contracts entered into
by the national government or government- owned or controlled corporations allegedly in
contravention of law.45 A taxpayer is allowed to sue where there is a claim that public funds are
illegally disbursed, or that public money is being deflected to any improper purpose, or that there
is a wastage of public funds through the enforcement of an invalid or unconstitutional law.46
Significantly, a taxpayer need not be a party to the contract to challenge its validity.47

In the present case, the petitioners are suing as taxpayers. They have sufficiently demonstrated
that, notwithstanding the fact that the CP I project is primarily financed from loans obtained by
the government from the JBIC, nonetheless, taxpayers money would be or is being spent on the
project considering that the Philippine Government is required to allocate a peso-counterpart
therefor. The public respondents themselves admit that appropriations for these foreign-assisted
projects in the GAA are composed of the loan proceeds and the peso-counterpart. The
counterpart funds, the Solicitor General explains, refer to the component of the project cost to be
financed from government-appropriated funds, as part of the governments commitment in the
implementation of the project.48 Hence, the petitioners correctly asserted their standing since a
part of the funds being utilized in the implementation of the CP I project partakes of taxpayers
money.

Further, the serious legal questions raised by the petitioners, e.g., whether RA 9184 applies to the
CP I project, in particular, and to foreign-funded government projects, in general, and the fact
that public interest is indubitably involved considering the public expenditure of millions of
pesos, warrant the Court to adopt in the present case its liberal policy on locus standi.
In any case, for reasons which will be discussed shortly, the substantive arguments raised by the
petitioners fail to persuade the Court as it holds that Resolution No. PJHL-A-04-012 is valid. As
a corollary, the subsequent contract entered into by and between the DPWH and private
respondent China Road & Bridge Corporation is likewise valid.

History of Philippine Procurement Laws

It is necessary, at this point, to give a brief history of Philippine laws pertaining to procurement
through public bidding. The United States Philippine Commission introduced the American
practice of public bidding through Act No. 22, enacted on October 15, 1900, by requiring the
Chief Engineer, United States Army for the Division of the Philippine Islands, acting as
purchasing agent under the control of the then Military Governor, to advertise and call for a
competitive bidding for the purchase of the necessary materials and lands to be used for the
construction of highways and bridges in the Philippine Islands.49 Act No. 74, enacted on January
21, 1901 by the Philippine Commission, required the General Superintendent of Public
Instruction to purchase office supplies through competitive public bidding.50 Act No. 82,
approved on January 31, 1901, and Act No. 83, approved on February 6, 1901, required the
municipal and provincial governments, respectively, to hold competitive public biddings in the
making of contracts for public works and the purchase of office supplies.51

On June 21, 1901, the Philippine Commission, through Act No. 146, created the Bureau of
Supply and with its creation, public bidding became a popular policy in the purchase of supplies,
materials and equipment for the use of the national government, its subdivisions and
instrumentalities.52 On February 3, 1936, then President Manuel L. Quezon issued Executive
Order No. 16 declaring as a matter of general policy that government contracts for public service
or for furnishing supplies, materials and equipment to the government should be subjected to
public bidding.53 The requirement of public bidding was likewise imposed for public works of
construction or repair pursuant to the Revised Administrative Code of 1917.

Then President Diosdado Macapagal, in Executive Order No. 40 dated June 1, 1963, reiterated
the directive that no government contract for public service or for furnishing supplies, materials
and equipment to the government or any of its branches, agencies or instrumentalities, should be
entered into without public bidding except for very extraordinary reasons to be determined by a
Committee constituted thereunder. Then President Ferdinand Marcos issued PD 1594 prescribing
guidelines for government infrastructure projects and Section 454 thereof stated that they should
generally be undertaken by contract after competitive public bidding.

Then President Corazon Aquino issued Executive Order No. 301 (1987) prescribing guidelines
for government negotiated contracts. Pertinently, Section 62 of the Administrative Code of 1987
reiterated the requirement of competitive public bidding in government projects. In 1990,
Congress passed RA 6957,55 which authorized the financing, construction, operation and
maintenance of infrastructure by the private sector. RA 7160 was likewise enacted by Congress
in 1991 and it contains provisions governing the procurement of goods and locally-funded civil
works by the local government units.
Then President Fidel Ramos issued Executive Order No. 302 (1996), providing guidelines for the
procurement of goods and supplies by the national government. Then President Joseph Ejercito
Estrada issued Executive Order No. 201 (2000), providing additional guidelines in the
procurement of goods and supplies by the national government. Thereafter, he issued Executive
Order No. 262 (2000) amending EO 302 (1996) and EO 201 (2000).

On October 8, 2001, President Gloria Macapagal-Arroyo issued EO 40, the law mainly relied
upon by the respondents, entitled Consolidating Procurement Rules and Procedures for All
National Government Agencies, Government-Owned or Controlled Corporations and
Government Financial Institutions, and Requiring the Use of the Government Procurement
System. It accordingly repealed, amended or modified all executive issuances, orders, rules and
regulations or parts thereof inconsistent therewith.56

On January 10, 2003, President Arroyo signed into law RA 9184. It took effect on January 26,
2004, or fifteen days after its publication in two newspapers of general circulation.57 It expressly
repealed, among others, EO 40, EO 262 (2000), EO 302(1996) and PD 1594, as amended:

SEC. 76. Repealing Clause. This law repeals Executive Order No. 40, series of 2001, entitled
"Consolidating Procurement Rules and Procedures for All National Government Agencies,
Government Owned or Controlled Corporations and/or Government Financial Institutions, and
Requiring the Use of the Government Electronic Procurement System"; Executive Order No.
262, series of 1996, entitled "Amending Executive Order No. 302, series of 1996, entitled
Providing Policies, Guidelines, Rules and Regulations for the Procurement of Goods/Supplies by
the National Government" and Section 3 of Executive Order No. 201, series of 2000, entitled
"Providing Additional Policies and Guidelines in the Procurement of Goods/Supplies by the
National Government"; Executive Order No. 302, series of 1996, entitled "Providing Policies,
Guidelines, Rules and Regulations for the Procurement of Goods/Supplies by the National
Government" and Presidential Decree No. 1594 dated June 11, 1978, entitled "Prescribing
Policies, Guidelines, Rules and Regulations for Government Infrastructure Contracts." This law
amends Title Six, Book Two of Republic Act No. 7160, otherwise known as the "Local
Government Code of 1991"; the relevant provisions of Executive Order No. 164, series of 1987,
entitled "Providing Additional Guidelines in the Processing and Approval of Contracts of the
National Government"; and the relevant provisions of Republic Act No. 7898 dated February 23,
1995, entitled "An Act Providing for the Modernization of the Armed Forces of the Philippines
and for Other Purposes." Any other law, presidential decree or issuance, executive order, letter of
instruction, administrative order, proclamation, charter, rule or regulation and/or parts thereof
contrary to or inconsistent with the provisions of this Act is hereby repealed, modified or
amended accordingly.

In addition to these laws, RA 4860, as amended, must be mentioned as Section 4 thereof


provides that "[i]n the contracting of any loan, credit or indebtedness under this Act, the
President of the Philippines may, when necessary, agree to waive or modify the application of
any law granting preferences or imposing restrictions on international competitive bidding x x x
Provided, finally, That the method and procedure in the comparison of bids shall be the subject
of agreement between the Philippine Government and the lending institution."
EO 40, not RA 9184, is applicable to the procurement

process undertaken for the CP I project. RA 9184

cannot be given retroactive application.

It is not disputed that with respect to the CP I project, the Invitation to Prequalify and to Bid for
its implementation was published in two leading national newspapers, namely, the Manila Times
and Manila Standard on November 22, 29 and December 5, 2002. At the time, the law in effect
was EO 40. On the other hand, RA 9184 took effect two months later or on January 26, 2003.
Further, its full implementation was even delayed as IRR-A was only approved by President
Arroyo on September 18, 2003 and subsequently published on September 23, 2003 in the Manila
Times and Malaya newspapers.58

The provisions of EO 40 apply to the procurement process pertaining to the CP I project as it is


explicitly provided in Section 1 thereof that:

SEC. 1. Scope and Application. This Executive Order shall apply to see procurement of (a)
goods, supplies, materials and related service; (b) civil works; and (c) consulting services, by all
National Government agencies, including State Universities and Colleges (SUCs), Government-
Owned or Controlled Corporations (GOCCs) and Government Financial Institutions (GFIs),
hereby referred to as "Agencies." This Executive Order shall cover the procurement process from
the pre-procurement conference up to the award of the contract.

Nothing in this Order shall negate any existing and future government commitments with respect
to the bidding and award of contracts financed partly or wholly with funds from international
financing institutions as well as from bilateral and similar foreign sources.

The procurement process basically involves the following steps: (1) pre-procurement conference;
(2) advertisement of the invitation to bid; (3) pre-bid conference; (4) eligibility check of
prospective bidders; (5) submission and receipt of bids; (6) modification and withdrawal of bids;
(7) bid opening and examination; (8) bid evaluation; (9) post qualification; (10) award of
contract and notice to proceed.59 Clearly then, when the Invitation to Prequalify and to Bid for
the implementation of the CP I project was published on November 22, 29 and December 5,
2002, the procurement process thereof had already commenced and the application of EO 40 to
the procurement process for the CP I project had already attached.

RA 9184 cannot be applied retroactively to govern the procurement process relative to the CP I
project because it is well settled that a law or regulation has no retroactive application unless it
expressly provides for retroactivity.60 Indeed, Article 4 of the Civil Code is clear on the matter:
"[l]aws shall have no retroactive effect, unless the contrary is provided." In the absence of such
categorical provision, RA 9184 will not be applied retroactively to the CP I project whose
procurement process commenced even before the said law took effect.

That the legislators did not intend RA 9184 to have retroactive effect could be gleaned from the
IRR-A formulated by the Joint Congressional Oversight Committee (composed of the Chairman
of the Senate Committee on Constitutional Amendments and Revision of Laws, and two
members thereof appointed by the Senate President and the Chairman of the House Committee
on Appropriations, and two members thereof appointed by the Speaker of the House of
Representatives) and the Government Procurement Policy Board (GPPB). Section 77 of the IRR-
A states, thus:

SEC. 77. Transitory Clause

In all procurement activities, if the advertisement or invitation for bids was issued prior to the
effectivity of the Act, the provisions of E.O. 40 and its IRR, P.D. 1594 and its IRR, R.A. 7160
and its IRR, or other applicable laws, as the case may be, shall govern.

In cases where the advertisements or invitations for bids were issued after the effectivity of the
Act but before the effectivity of this IRR-A, procuring entities may continue adopting the
procurement procedures, rules and regulations provided in E.O. 40 and its IRR, P.D. 1594 and its
IRR, R.A. 7160 and its IRR, or other applicable laws, as the case may be.

In other words, under IRR-A, if the advertisement of the invitation for bids was issued prior to
the effectivity of RA 9184, such as in the case of the CP I project, the provisions of EO 40 and its
IRR, and PD 1594 and its IRR in the case of national government agencies, and RA 7160 and its
IRR in the case of local government units, shall govern.

Admittedly, IRR-A covers only fully domestically-funded procurement activities from


procurement planning up to contract implementation and that it is expressly stated that IRR-B for
foreign-funded procurement activities shall be subject of a subsequent issuance.61 Nonetheless,
there is no reason why the policy behind Section 77 of IRR-A cannot be applied to foreign-
funded procurement projects like the CP I project. Stated differently, the policy on the
prospective or non-retroactive application of RA 9184 with respect to domestically-funded
procurement projects cannot be any different with respect to foreign-funded procurement
projects like the CP I project. It would be incongruous, even absurd, to provide for the
prospective application of RA 9184 with respect to domestically-funded procurement projects
and, on the other hand, as urged by the petitioners, apply RA 9184 retroactively with respect to
foreign- funded procurement projects. To be sure, the lawmakers could not have intended such
an absurdity.

Thus, in the light of Section 1 of EO 40, Section 77 of IRR-A, as well as the fundamental rule
embodied in Article 4 of the Civil Code on prospectivity of laws, the Court holds that the
procurement process for the implementation of the CP I project is governed by EO 40 and its
IRR, not RA 9184.

Under EO 40, the award of the contract to private

respondent China Road & Bridge Corporation is valid

Section 25 of EO 40 provides that "[t]he approved budget of the contract shall be the upper limit
or ceiling of the bid price. Bid prices which exceed this ceiling shall be disqualified outright
from further participating in the bidding. There shall be no lower limit to the amount of the
award. x x x" It should be observed that this text is almost similar to the wording of Section 31 of
RA 9184, relied upon by the petitioners in contending that since the bid price of private
respondent China Road & Bridge Corporation exceeded the ABC, then it should not have been
awarded the contract for the CP I project.

Nonetheless, EO 40 expressly recognizes as an exception to its scope and application those


government commitments with respect to bidding and award of contracts financed partly or
wholly with funds from international financing institutions as well as from bilateral and other
similar foreign sources. The pertinent portion of Section 1 of EO 40 is quoted anew:

SEC. 1. Scope and Application. x x x

Nothing in this Order shall negate any existing and future government commitments with respect
to the bidding and award of contracts financed partly or wholly with funds from international
financing institutions as well as from bilateral and similar foreign sources.

In relation thereto, Section 4 of RA 4860, as amended, was correctly cited by the respondents as
likewise authorizing the President, in the contracting of any loan, credit or indebtedness
thereunder, "when necessary, agree to waive or modify the application of any law granting
preferences or imposing restrictions on international competitive bidding x x x." The said
provision of law further provides that "the method and procedure in the comparison of bids shall
be the subject of agreement between the Philippine Government and the lending institution."

Consequently, in accordance with these applicable laws, the procurement of goods and services
for the CP I project is governed by the corresponding loan agreement entered into by the
government and the JBIC, i.e., Loan Agreement No. PH-P204. The said loan agreement
stipulated that the procurement of goods and services for the Arterial Road Links Development
Project (Phase IV), of which CP I is a component, is to be governed by the JBIC Procurement
Guidelines. Section 5.06, Part II (International Competitive Bidding) thereof quoted earlier
reads:

Section 5.06. Evaluation and Comparison of Bids

xxx

(e) Any procedure under which bids above or below a predetermined bid value assessment are
automatically disqualified is not permitted.62

It is clear that the JBIC Procurement Guidelines proscribe the imposition of ceilings on bid
prices. On the other hand, it enjoins the award of the contract to the bidder whose bid has been
determined to be the lowest evaluated bid. The pertinent provision, quoted earlier, is reiterated,
thus:

Section 5.09. Award of Contract


The contract is to be awarded to the bidder whose bid has been determined to be the lowest
evaluated bid and who meets the appropriate standards of capability and financial resources. A
bidder shall not be required as a condition of award to undertake responsibilities or work not
stipulated in the specifications or to modify the bid.63

Since these terms and conditions are made part of Loan Agreement No. PH-P204, the
government is obliged to observe and enforce the same in the procurement of goods and services
for the CP I project. As shown earlier, private respondent China Road & Bridge Corporations
bid was the lowest evaluated bid, albeit 28.95% higher than the ABC. In accordance with the
JBIC Procurement Guidelines, therefore, it was correctly awarded the contract for the CP I
project.

Even if RA 9184 were to be applied retroactively, the terms of the Exchange of Notes dated
December 27, 1999 and Loan Agreement No. PH-P204 would still govern the procurement for
the CP I project

For clarity, Section 4 of RA 9184 is quoted anew, thus:

SEC. 4. Scope and Applications. This Act shall apply to the Procurement of Infrastructure
Projects, Goods and Consulting Services, regardless of source of funds, whether local or foreign,
by all branches and instrumentalities of government, its departments, offices and agencies,
including government-owned and/or controlled corporations and local government units,
subject to the provisions of Commonwealth Act No. 138. Any treaty or international or executive
agreement affecting the subject matter of this Act to which the Philippine government is a
signatory shall be observed.

The petitioners, in order to place the procurement process undertaken for the CP I project within
the ambit of RA 9184, vigorously assert that Loan Agreement No. PH-P204 is neither a treaty, an
international agreement nor an executive agreement. They cite Executive Order No. 459 dated
November 25, 1997 where the three agreements are defined in this wise:

a) International agreement shall refer to a contract or understanding, regardless of


nomenclature, entered into between the Philippines and another government in written
form and governed by international law, whether embodied in a single instrument or in
two or more related instruments.

b) Treaties international agreements entered into by the Philippines which require


legislative concurrence after executive ratification. This term may include compacts like
conventions, declarations, covenants and acts.

c) Executive agreements similar to treaties except that they do not require legislative
concurrence.64

The petitioners mainly argue that Loan Agreement No. PH-P204 does not fall under any of the
three categories because to be any of the three, an agreement had to be one where the parties are
the Philippines as a State and another State. The JBIC, the petitioners maintain, is a Japanese
banking agency, which presumably has a separate juridical personality from the Japanese
Government.

The petitioners arguments fail to persuade. The Court holds that Loan Agreement No. PH-P204
taken in conjunction with the Exchange of Notes dated December 27, 1999 between the Japanese
Government and the Philippine Government is an executive agreement.

To recall, Loan Agreement No. PH-P204 was executed by and between the JBIC and the
Philippine Government pursuant to the Exchange of Notes executed by and between Mr.
Yoshihisa Ara, Ambassador Extraordinary and Plenipotentiary of Japan to the Philippines, and
then Foreign Affairs Secretary Siazon, in behalf of their respective governments. The Exchange
of Notes expressed that the two governments have reached an understanding concerning
Japanese loans to be extended to the Philippines and that these loans were aimed at promoting
our countrys economic stabilization and development efforts.

Loan Agreement No. PH-P204 was subsequently executed and it declared that it was so entered
by the parties "[i]n the light of the contents of the Exchange of Notes between the Government of
Japan and the Government of the Republic of the Philippines dated December 27, 1999,
concerning Japanese loans to be extended with a view to promoting the economic stabilization
and development efforts of the Republic of the Philippines."65 Under the circumstances, the JBIC
may well be considered an adjunct of the Japanese Government. Further, Loan Agreement No.
PH-P204 is indubitably an integral part of the Exchange of Notes. It forms part of the Exchange
of Notes such that it cannot be properly taken independent thereof.

In this connection, it is well to understand the definition of an "exchange of notes" under


international law. The term is defined in the United Nations Treaty Collection in this wise:

An "exchange of notes" is a record of a routine agreement that has many similarities with the
private law contract. The agreement consists of the exchange of two documents, each of the
parties being in the possession of the one signed by the representative of the other. Under the
usual procedure, the accepting State repeats the text of the offering State to record its assent. The
signatories of the letters may be government Ministers, diplomats or departmental heads. The
technique of exchange of notes is frequently resorted to, either because of its speedy procedure,
or, sometimes, to avoid the process of legislative approval.66

It is stated that "treaties, agreements, conventions, charters, protocols, declarations, memoranda


of understanding, modus vivendi and exchange of notes" all refer to "international instruments
binding at international law."67 It is further explained that-

Although these instruments differ from each other by title, they all have common features and
international law has applied basically the same rules to all these instruments. These rules are the
result of long practice among the States, which have accepted them as binding norms in their
mutual relations. Therefore, they are regarded as international customary law. Since there was a
general desire to codify these customary rules, two international conventions were negotiated.
The 1969 Vienna Convention on the Law of Treaties ("1969 Vienna Convention"), which entered
into force on 27 January 1980, contains rules for treaties concluded between States. The 1986
Vienna Convention on the Law of Treaties between States and International Organizations
("1986 Vienna Convention"), which has still not entered into force, added rules for treaties with
international organizations as parties. Both the 1969 Vienna Convention and the 1986 Vienna
Convention do not distinguish between the different designations of these instruments. Instead,
their rules apply to all of those instruments as long as they meet the common requirements.68

Significantly, an exchange of notes is considered a form of an executive agreement, which


becomes binding through executive action without the need of a vote by the Senate or Congress.
The following disquisition by Francis B. Sayre, former United States High Commissioner to the
Philippines, entitled "The Constitutionality of Trade Agreement Acts," quoted in Commissioner
of Customs v. Eastern Sea Trading,69 is apropos:

Agreements concluded by the President which fall short of treaties are commonly referred to as
executive agreements and are no less common in our scheme of government than are the more
formal instruments treaties and conventions. They sometimes take the form of exchange of
notes and at other times that of more formal documents denominated "agreements" or
"protocols". The point where ordinary correspondence between this and other governments ends
and agreements whether denominated executive agreements or exchange of notes or otherwise
begin, may sometimes be difficult of ready ascertainment. It would be useless to undertake to
discuss here the large variety of executive agreements as such, concluded from time to time.
Hundreds of executive agreements, other than those entered into under the trade-agreements act,
have been negotiated with foreign governments. x x x70

The Exchange of Notes dated December 27, 1999, stated, inter alia, that the Government of
Japan would extend loans to the Philippines with a view to promoting its economic stabilization
and development efforts; Loan I in the amount of Y79,8651,000,000 would be extended by the
JBIC to the Philippine Government to implement the projects in the List A (including the Arterial
Road Links Development Project - Phase IV); and that such loan (Loan I) would be used to
cover payments to be made by the Philippine executing agencies to suppliers, contractors and/or
consultants of eligible source countries under such contracts as may be entered into between
them for purchases of products and/or services required for the implementation of the projects
enumerated in the List A.71 With respect to the procurement of the goods and services for the
projects, it bears reiterating that as stipulated:

3. The Government of the Republic of the Philippines will ensure that the products and/or
services mentioned in sub-paragraph (1) of paragraph 3 of Part I and sub-paragraph (1) of
paragraph 4 of Part II are procured in accordance with the guidelines for procurement of the
Bank, which set forth, inter alia, the procedures of international tendering to be followed except
where such procedures are inapplicable or inappropriate.72

The JBIC Procurements Guidelines, as quoted earlier, forbids any procedure under which bids
above or below a predetermined bid value assessment are automatically disqualified. Succinctly
put, it absolutely prohibits the imposition of ceilings on bids.

Under the fundamental principle of international law of pacta sunt servanda,73 which is, in fact,
embodied in Section 4 of RA 9184 as it provides that "[a]ny treaty or international or executive
agreement affecting the subject matter of this Act to which the Philippine government is a
signatory shall be observed," the DPWH, as the executing agency of the projects financed by
Loan Agreement No. PH-P204, rightfully awarded the contract for the implementation of civil
works for the CP I project to private respondent China Road & Bridge Corporation.

WHEREFORE, premises considered, the petition is DISMISSED.

SO ORDERED.

ROMEO J. CALLEJO, SR.


Associate Justice

G.R. No. L-49112 February 2, 1979

LEOVILLO C. AGUSTIN, petitioner,


vs.
HON. ROMEO F. EDU, in his capacity as Land Transportation Commissioner;
HON. JUAN PONCE ENRILE, in his capacity as Minister of National Defense; HON.
ALFREDO L. JUINIO, in his capacity as Minister Of Public Works, Transportation
and Communications; and HON: BALTAZAR AQUINO, in his capacity as Minister
of Public Highways, respondents.

Leovillo C. Agustin Law Office for petitioner.

Solicitor General Estelito P. Mendoza, Assistant Solicitor General Ruben E. Agpalo and
Solicitor Amado D. Aquino for respondents.

FERNANDO, J.:

The validity of a letter of Instruction 1 providing for an early seaming device for motor vehicles is
assailed in this prohibition proceeding as being violative of the constitutional guarantee of due process
and, insofar as the rules and regulations for its implementation are concerned, for transgressing the
fundamental principle of non- delegation of legislative power. The Letter of Instruction is stigmatized by
petitioner who is possessed of the requisite standing, as being arbitrary and oppressive. A temporary
restraining order as issued and respondents Romeo F. Edu, Land Transportation Commissioner Juan
Ponce Enrile, Minister of National Defense; Alfredo L. Juinio, Minister of Public Works, Transportation and
Communications; and Baltazar Aquino, Minister of Public Highways; were to answer. That they did in a
pleading submitted by Solicitor General Estelito P. Mendoza. 2 Impressed with a highly persuasive quality,
it makes devoid clear that the imputation of a constitutional infirmity is devoid of justification The Letter of
Instruction on is a valid police power measure. Nor could the implementing rules and regulations issued
by respondent Edu be considered as amounting to an exercise of legislative power. Accordingly, the
petition must be dismissed.
The facts are undisputed. The assailed Letter of Instruction No. 229 of President Marcos, issued on
December 2, 1974, reads in full: "[Whereas], statistics show that one of the major causes of fatal or
serious accidents in land transportation is the presence of disabled, stalled or parked motor vehicles
along streets or highways without any appropriate early warning device to signal approaching motorists of
their presence; [Whereas], the hazards posed by such obstructions to traffic have been recognized by
international bodies concerned with traffic safety, the 1968 Vienna Convention on Road Signs and Signals
and the United Nations Organization (U.N.); [Whereas], the said Vienna Convention which was ratified by
the Philippine Government under P.D. No. 207, recommended the enactment of local legislation for the
installation of road safety signs and devices; [Now, therefore, I, Ferdinand E. Marcos], President of the
Philippines, in the interest of safety on all streets and highways, including expressways or limited access
roads, do hereby direct: 1. That all owners, users or drivers of motor vehicles shall have at all times in
their motor vehicles at least one (1) pair of early warning device consisting of triangular, collapsible
reflectorized plates in red and yellow colors at least 15 cms. at the base and 40 cms. at the sides. 2.
Whenever any motor vehicle is stalled or disabled or is parked for thirty (30) minutes or more on any
street or highway, including expressways or limited access roads, the owner, user or driver thereof shall
cause the warning device mentioned herein to be installed at least four meters away to the front and rear
of the motor vehicle staged, disabled or parked. 3. The Land Transportation Commissioner shall cause
Reflectorized Triangular Early Warning Devices, as herein described, to be prepared and issued to
registered owners of motor vehicles, except motorcycles and trailers, charging for each piece not more
than 15 % of the acquisition cost. He shall also promulgate such rules and regulations as are appropriate
to effectively implement this order. 4. All hereby concerned shall closely coordinate and take such
measures as are necessary or appropriate to carry into effect then instruction. 3 Thereafter, on November
15, 1976, it was amended by Letter of Instruction No. 479 in this wise. "Paragraph 3 of Letter of
Instruction No. 229 is hereby amended to read as follows: 3. The Land transportation Commissioner shall
require every motor vehicle owner to procure from any and present at the registration of his vehicle, one
pair of a reflectorized early warning device, as d bed of any brand or make chosen by mid motor vehicle .
The Land Transportation Commissioner shall also promulgate such rule and regulations as are
appropriate to effectively implement this order.'" 4 There was issued accordingly, by respondent Edu, the
implementing rules and regulations on December 10, 1976. 5 They were not enforced as President
Marcos on January 25, 1977, ordered a six-month period of suspension insofar as the installation of early
warning device as a pre-registration requirement for motor vehicle was concerned. 6 Then on June 30,
1978, another Letter of Instruction 7 the lifting of such suspension and directed the immediate
implementation of Letter of Instruction No. 229 as amended. 8 It was not until August 29, 1978 that
respondent Edu issued Memorandum Circular No. 32, worded thus: "In pursuance of Letter of Instruction
No. 716, dated June 30, 1978, the implementation of Letter of Instruction No. 229, as amended by Letter
of Instructions No. 479, requiring the use of Early Warning Devices (EWD) on motor vehicle, the following
rules and regulations are hereby issued: 1. LTC Administrative Order No. 1, dated December 10, 1976;
shall now be implemented provided that the device may come from whatever source and that it shall have
substantially complied with the EWD specifications contained in Section 2 of said administrative order; 2.
In order to insure that every motor vehicle , except motorcycles, is equipped with the device, a pair of
serially numbered stickers, to be issued free of charge by this Commission, shall be attached to each
EWD. The EWD. serial number shall be indicated on the registration certificate and official receipt of
payment of current registration fees of the motor vehicle concerned. All Orders, Circulars, and
Memoranda in conflict herewith are hereby superseded, This Order shall take effect immediately. 9 It was
for immediate implementation by respondent Alfredo L. Juinio, as Minister of Public Works, transportation,
and Communications. 10

Petitioner, after setting forth that he "is the owner of a Volkswagen Beetle Car, Model 13035, already
properly equipped when it came out from the assembly lines with blinking lights fore and aft, which could
very well serve as an early warning device in case of the emergencies mentioned in Letter of Instructions
No. 229, as amended, as well as the implementing rules and regulations in Administrative Order No. 1
issued by the land transportation Commission," 11 alleged that said Letter of Instruction No. 229, as
amended, "clearly violates the provisions and delegation of police power, [sic] * * *: " For him they are
"oppressive, unreasonable, arbitrary, confiscatory, nay unconstitutional and contrary to the precepts of our
compassionate New Society." 12 He contended that they are "infected with arbitrariness because it is
harsh, cruel and unconscionable to the motoring public;" 13 are "one-sided, onerous and patently illegal
and immoral because [they] will make manufacturers and dealers instant millionaires at the expense of
car owners who are compelled to buy a set of the so-called early warning device at the rate of P 56.00 to
P72.00 per set." 14 are unlawful and unconstitutional and contrary to the precepts of a compassionate
New Society [as being] compulsory and confiscatory on the part of the motorists who could very well
provide a practical alternative road safety device, or a better substitute to the specified set of EWD's." 15
He therefore prayed for a judgment both the assailed Letters of Instructions and Memorandum Circular
void and unconstitutional and for a restraining order in the meanwhile.

A resolution to this effect was handed down by this Court on October 19, 1978: "L-49112 (Leovillo C.
Agustin v. Hon. Romeo F. Edu, etc., et al.) Considering the allegations contained, the issues raised and
the arguments adduced in the petition for prohibition with writ of p prohibitory and/or mandatory injunction,
the Court Resolved to (require) the respondents to file an answer thereto within ton (10) days from notice
and not to move to dismiss the petition. The Court further Resolved to [issue] a [temporary restraining
order] effective as of this date and continuing until otherwise ordered by this Court. 16

Two motions for extension were filed by the Office of the Solicitor General and granted. Then on
November 15, 1978, he Answer for respondents was submitted. After admitting the factual allegations and
stating that they lacked knowledge or information sufficient to form a belief as to petitioner owning a
Volkswagen Beetle car," they "specifically deny the allegations and stating they lacked knowledge or
information sufficient to form a belief as to petitioner owning a Volkswagen Beetle Car, 17 they specifically
deny the allegations in paragraphs X and XI (including its subparagraphs 1, 2, 3, 4) of Petition to the
effect that Letter of Instruction No. 229 as amended by Letters of Instructions Nos. 479 and 716 as well as
Land transportation Commission Administrative Order No. 1 and its Memorandum Circular No. 32 violates
the constitutional provisions on due process of law, equal protection of law and undue delegation of police
power, and that the same are likewise oppressive, arbitrary, confiscatory, one-sided, onerous, immoral
unreasonable and illegal the truth being that said allegations are without legal and factual basis and for
the reasons alleged in the Special and Affirmative Defenses of this Answer." 18 Unlike petitioner who
contented himself with a rhetorical recital of his litany of grievances and merely invoked the sacramental
phrases of constitutional litigation, the Answer, in demonstrating that the assailed Letter of Instruction was
a valid exercise of the police power and implementing rules and regulations of respondent Edu not
susceptible to the charge that there was unlawful delegation of legislative power, there was in the portion
captioned Special and Affirmative Defenses, a citation of what respondents believed to be the
authoritative decisions of this Tribunal calling for application. They are Calalang v. Williams, 19 Morfe v.
Mutuc, 20 and Edu v. Ericta. 21 Reference was likewise made to the 1968 Vienna Conventions of the
United Nations on road traffic, road signs, and signals, of which the Philippines was a signatory and which
was duly ratified. 22 Solicitor General Mendoza took pains to refute in detail, in language calm and
dispassionate, the vigorous, at times intemperate, accusation of petitioner that the assailed Letter of
Instruction and the implementing rules and regulations cannot survive the test of rigorous scrutiny. To
repeat, its highly-persuasive quality cannot be denied.

This Court thus considered the petition submitted for decision, the issues being clearly joined. As noted at
the outset, it is far from meritorious and must be dismissed.
1. The Letter of Instruction in question was issued in the exercise of the police power. That is conceded by
petitioner and is the main reliance of respondents. It is the submission of the former, however, that while
embraced in such a category, it has offended against the due process and equal protection safeguards of
the Constitution, although the latter point was mentioned only in passing. The broad and expansive scope
of the police power which was originally Identified by Chief Justice Taney of the American Supreme Court
in an 1847 decision as "nothing more or less than the powers of government inherent in every
sovereignty" 23 was stressed in the aforementioned case of Edu v. Ericta thus: "Justice Laurel, in the first
leading decision after the Constitution came into force, Calalang v. Williams, Identified police power with
state authority to enact legislation that may interfere with personal liberty or property in order to promote
the general welfare. Persons and property could thus 'be subjected to all kinds of restraints and burdens
in order to we the general comfort, health and prosperity of the state.' Shortly after independence in 1948,
Primicias v. Fugoso reiterated the doctrine, such a competence being referred to as 'the power to
prescribe regulations to promote the health, morals, peace, education, good order or safety, and general
welfare of the people. The concept was set forth in negative terms by Justice Malcolm in a pre-
Commonwealth decision as 'that inherent and plenary power in the State which enables it to prohibit all
things hurtful to the comfort, safety and welfare of society. In that sense it could be hardly distinguishable
as noted by this Court in Morfe v. Mutuc with the totality of legislative power. It is in the above sense the
greatest and most powerful at. tribute of government. It is, to quote Justice Malcolm anew, 'the most
essential, insistent, and at least table powers, I extending as Justice Holmes aptly pointed out 'to all the
great public needs.' Its scope, ever-expanding to meet the exigencies of the times, even to anticipate the
future where it could be done, provides enough room for an efficient and flexible response to conditions
and circumstances thus assuring the greatest benefits. In the language of Justice Cardozo: 'Needs that
were narrow or parochial in the past may be interwoven in the present with the well-being of the nation.
What is critical or urgent changes with the time.' The police power is thus a dynamic agency, suitably
vague and far from precisely defined, rooted in the conception that men in organizing the state and
imposing upon its government limitations to safeguard constitutional rights did not intend thereby to
enable an individual citizen or a group of citizens to obstruct unreasonably the enactment of such salutary
measures calculated to communal peace, safety, good order, and welfare." 24

2. It was thus a heavy burden to be shouldered by petitioner, compounded by the fact that the particular
police power measure challenged was clearly intended to promote public safety. It would be a rare
occurrence indeed for this Court to invalidate a legislative or executive act of that character. None has
been called to our attention, an indication of its being non-existent. The latest decision in point, Edu v.
Ericta, sustained the validity of the Reflector Law, 25 an enactment conceived with the same end in view.
Calalang v. Williams found nothing objectionable in a statute, the purpose of which was: "To promote safe
transit upon, and. avoid obstruction on roads and streets designated as national roads * * *. 26 As a matter
of fact, the first law sought to be nullified after the effectivity of the 1935 Constitution, the National
Defense Act, 27 with petitioner failing in his quest, was likewise prompted by the imperative demands of
public safety.

3. The futility of petitioner's effort to nullify both the Letter of Instruction and the implementing rules and
regulations becomes even more apparent considering his failure to lay the necessary factual foundation
to rebut the presumption of validity. So it was held in Ermita-Malate Hotel and Motel Operators
Association, Inc. v. City Mayor of Manila. 28 The rationale was clearly set forth in an excerpt from a
decision of Justice Branders of the American Supreme Court, quoted in the opinion: "The statute here
questioned deals with a subject clearly within the scope of the police power. We are asked to declare it
void on the ground that the specific method of regulation prescribed is unreasonable and hence deprives
the plaintiff of due process of law. As underlying questions of fact may condition the constitutionality of
legislation of this character, the presumption of constitutionality must prevail in the absence of some
factual foundation of record in overthrowing the statute. 29

4. Nor did the Solicitor General as he very well could, rely solely on such rebutted presumption of validity.
As was pointed out in his Answer "The President certainly had in his possession the necessary statistical
information and data at the time he issued said letter of instructions, and such factual foundation cannot
be defeated by petitioner's naked assertion that early warning devices 'are not too vital to the prevention
of nighttime vehicular accidents' because allegedly only 390 or 1.5 per cent of the supposed 26,000 motor
vehicle accidents that in 1976 involved rear-end collisions (p. 12 of petition). Petitioner's statistics is not
backed up by demonstrable data on record. As aptly stated by this Honorable Court: Further: "It admits of
no doubt therefore that there being a presumption of validity, the necessity for evidence to rebut it is
unavoidable, unless the statute or ordinance is void on its face, which is not the case here"' * * *. But even
as g the verity of petitioner's statistics, is that not reason enough to require the installation of early
warning devices to prevent another 390 rear-end collisions that could mean the death of 390 or more
Filipinos and the deaths that could likewise result from head-on or frontal collisions with stalled vehicles?"
30
It is quite manifest then that the issuance of such Letter of Instruction is encased in the armor of prior,
careful study by the Executive Department. To set it aside for alleged repugnancy to the due process
clause is to give sanction to conjectural claims that exceeded even the broadest permissible limits of a
pleader's well known penchant for exaggeration.

5. The rather wild and fantastic nature of the charge of oppressiveness of this Letter of Instruction was
exposed in the Answer of the Solicitor General thus: "Such early warning device requirement is not an
expensive redundancy, nor oppressive, for car owners whose cars are already equipped with 1) blinking
lights in the fore and aft of said motor vehicles,' 2) "battery-powered blinking lights inside motor vehicles,"
3) "built-in reflectorized tapes on front and rear bumpers of motor vehicles," or 4) "well-lighted two (2)
petroleum lamps (the Kinke) * * * because: Being universal among the signatory countries to the said
1968 Vienna Conventions, and visible even under adverse conditions at a distance of at least 400 meters,
any motorist from this country or from any part of the world, who sees a reflectorized rectangular early
seaming device installed on the roads, highways or expressways, will conclude, without thinking, that
somewhere along the travelled portion of that road, highway, or expressway, there is a motor vehicle
which is stationary, stalled or disabled which obstructs or endangers passing traffic. On the other hand, a
motorist who sees any of the aforementioned other built in warning devices or the petroleum lamps will
not immediately get adequate advance warning because he will still think what that blinking light is all
about. Is it an emergency vehicle? Is it a law enforcement car? Is it an ambulance? Such confusion or
uncertainty in the mind of the motorist will thus increase, rather than decrease, the danger of collision. 31

6. Nor did the other extravagant assertions of constitutional deficiency go unrefuted in the Answer of the
Solicitor General "There is nothing in the questioned Letter of Instruction No. 229, as amended, or in
Administrative Order No. 1, which requires or compels motor vehicle owners to purchase the early
warning device prescribed thereby. All that is required is for motor vehicle owners concerned like
petitioner, to equip their motor vehicles with a pair of this early warning device in question, procuring or
obtaining the same from whatever source. In fact, with a little of industry and practical ingenuity, motor
vehicle owners can even personally make or produce this early warning device so long as the same
substantially conforms with the specifications laid down in said letter of instruction and administrative
order. Accordingly the early warning device requirement can neither be oppressive, onerous, immoral, nor
confiscatory, much less does it make manufacturers and dealers of said devices 'instant millionaires at the
expense of car owners' as petitioner so sweepingly concludes * * *. Petitioner's fear that with the early
warning device requirement 'a more subtle racket may be committed by those called upon to enforce it * *
* is an unfounded speculation. Besides, that unscrupulous officials may try to enforce said requirement in
an unreasonable manner or to an unreasonable degree, does not render the same illegal or immoral
where, as in the instant case, the challenged Letter of Instruction No. 229 and implementing order
disclose none of the constitutional defects alleged against it. 32

7 It does appear clearly that petitioner's objection to this Letter of Instruction is not premised on lack of
power, the justification for a finding of unconstitutionality, but on the pessimistic, not to say negative, view
he entertains as to its wisdom. That approach, it put it at its mildest, is distinguished, if that is the
appropriate word, by its unorthodoxy. It bears repeating "that this Court, in the language of Justice Laurel,
'does not pass upon questions of wisdom justice or expediency of legislation.' As expressed by Justice
Tuason: 'It is not the province of the courts to supervise legislation and keep it within the bounds of
propriety and common sense. That is primarily and exclusively a legislative concern.' There can be no
possible objection then to the observation of Justice Montemayor. 'As long as laws do not violate any
Constitutional provision, the Courts merely interpret and apply them regardless of whether or not they are
wise or salutary. For they, according to Justice Labrador, 'are not supposed to override legitimate policy
and * * * never inquire into the wisdom of the law.' It is thus settled, to paraphrase Chief Justice
Concepcion in Gonzales v. Commission on Elections, that only congressional power or competence, not
the wisdom of the action taken, may be the basis for declaring a statute invalid. This is as it ought to be.
The principle of separation of powers has in the main wisely allocated the respective authority of each
department and confined its jurisdiction to such a sphere. There would then be intrusion not allowable
under the Constitution if on a matter left to the discretion of a coordinate branch, the judiciary would
substitute its own. If there be adherence to the rule of law, as there ought to be, the last offender should
be courts of justice, to which rightly litigants submit their controversy precisely to maintain unimpaired the
supremacy of legal norms and prescriptions. The attack on the validity of the challenged provision
likewise insofar as there may be objections, even if valid and cogent on is wisdom cannot be sustained. 33

8. The alleged infringement of the fundamental principle of non-delegation of legislative power is equally
without any support well-settled legal doctrines. Had petitioner taken the trouble to acquaint himself with
authoritative pronouncements from this Tribunal, he would not have the temerity to make such an
assertion. An exempt from the aforecited decision of Edu v. Ericta sheds light on the matter: "To avoid the
taint of unlawful delegation, there must be a standard, which implies at the very least that the legislature
itself determines matters of principle and lays down fundamental policy. Otherwise, the charge of
complete abdication may be hard to repel A standard thus defines legislative policy, marks its maps out its
boundaries and specifies the public agency to apply it. It indicates the circumstances under which the
legislative command is to be effected. It is the criterion by which legislative purpose may be carried out.
Thereafter, the executive or administrative office designated may in pursuance of the above guidelines
promulgate supplemental rules and regulations. The standard may be either express or implied. If the
former, the non-delegation objection is easily met. The standard though does not have to be spelled out
specifically. It could be implied from the policy and purpose of the act considered as a whole. In the
Reflector Law clearly, the legislative objective is public safety. What is sought to be attained as in
Calalang v. Williams is "safe transit upon the roads.' This is to adhere to the recognition given expression
by Justice Laurel in a decision announced not too long after the Constitution came into force and effect
that the principle of non-delegation "has been made to adapt itself to the complexities of modern
governments, giving rise to the adoption, within certain limits, of the principle of "subordinate legislation"
not only in the United States and England but in practically all modern governments.' He continued:
'Accordingly, with the growing complexity of modern life, the multiplication of the subjects of governmental
regulation, and the increased difficulty of administering the laws, there is a constantly growing tendency
toward the delegation of greater powers by the legislature and toward the approval of the practice by the
courts.' Consistency with the conceptual approach requires the reminder that what is delegated is
authority non-legislative in character, the completeness of the statute when it leaves the hands of
Congress being assumed." 34

9. The conclusion reached by this Court that this petition must be dismissed is reinforced by this
consideration. The petition itself quoted these two whereas clauses of the assailed Letter of Instruction:
"[Whereas], the hazards posed by such obstructions to traffic have been recognized by international
bodies concerned with traffic safety, the 1968 Vienna Convention on Road Signs and Signals and the
United Nations Organization (U.N.); [Whereas], the said Vionna Convention, which was ratified by the
Philippine Government under P.D. No. 207, recommended the enactment of local legislation for the
installation of road safety signs and devices; * * * " 35 It cannot be disputed then that this Declaration of
Principle found in the Constitution possesses relevance: "The Philippines * * * adopts the generally
accepted principles of international law as part of the law of the land * * *." 36 The 1968 Vienna Convention
on Road Signs and Signals is impressed with such a character. It is not for this country to repudiate a
commitment to which it had pledged its word. The concept of Pacta sunt servanda stands in the way of
such an attitude, which is, moreover, at war with the principle of international morality.

10. That is about all that needs be said. The rather court reference to equal protection did not even elicit
any attempt on the Part of Petitioner to substantiate in a manner clear, positive, and categorical why such
a casual observation should be taken seriously. In no case is there a more appropriate occasion for
insistence on what was referred to as "the general rule" in Santiago v. Far Eastern Broadcasting Co., 37
namely, "that the constitutionality of a law wig not be considered unless the point is specially pleaded,
insisted upon, and adequately argued." 38 "Equal protection" is not a talismanic formula at the mere
invocation of which a party to a lawsuit can rightfully expect that success will crown his efforts. The law is
anything but that.

WHEREFORE, this petition is dismissed. The restraining order is lifted. This decision is immediately
executory. No costs.

Separate Opinions

TEEHANKEE, J., dissenting:

I dissent from the majority's peremptory dismissal of the petition and lifting of the
restraining order issued on October 19, 1978 against the blanket enforcement of the
requirement that all motor vehicles be equipped with the so-called early warning device,
without even hearing the parties in oral argument as generally required by the Court in
original cases of far-reaching consequence such as the case at bar.

Lack of time presents my filing an extended dissent. I only wish to state that the petition
advances grave and serious grounds of assailing "the rules and regulations issued by
the Land Transportation Commission under Administrative Order No. 1 and
Memorandum Circular No. 32 [which] do not reflect the real intent, noble objectives and
spirit of Letter of Instructions No. 229, as amended by Letter of Instructions Nos. 479
and 716, because it is oppressive, unreasonable, arbitrary, confiscatory, nay
unconstitutional and contrary to the precepts of our compassionate New Society,"
because of the following considerations, inter alia:

1. It is oppressive, arbitrary and discriminatory to require owners of motor vehicles with


built-in and more effective and efficient E.W.D.'S such as "a) blinking lights in the fore
and aft of said motor vehicles, 1)) battery-powered blinking lights inside motor vehicles,
c) built-in reflectorized tapes on front and rear bumpers of motor vehicles....... to
purchase the E.W.D. specified in the challenged administrative order, whose effectivity
and utility have yet to be demonstrated.

2. The public necessity for the challenged order has yet to be shown. No valid refutation
has been made of petitioner's assertion that the "E.W.D.'s are not too vital to the
prevention of nighttime vehicular accidents. Statistics shows that of the 26,000 motor
vehicle accidents that occurred in 1976, only 390 or 1.5 per cent involved rear-end
collisions," as to require the purchase and installation of the questioned E.W.D. for
almost 900,000 vehicles throughout the country;

3. The big financial burden to be imposed on all motorists is staggering, and petitioner's
assertion that "as of 1975, there were at least 865,037 motor vehicles all over the
country requiring E.W.D.'S and at the minimum price of 1156.00 per set, this would
mean a consumer outlay of P 48,451,872.00, or close to P 50 million for the questioned
E.W.D.'S "stands unchallenged;

4. No real effort has been made to show that there can be practical and less
burdensome alternative road safety devices for stalled vehicles than the prescribed
E.W.D., such as the common petroleum lamps "kinke" which can be placed just as
effectively in front of stalled vehicles on the highways; and

5. There is no imperative need for imposing such a bet requirement on all vehicles. The
respondents have not shown that they have availed of the powers and prerogatives
vested in their offices such as ridding the country of dilapidated trucks and vehicles
which are the main cause of the deplorable -highway accidents due to stoned vehicles,
establishing an honest and foolproof system of examination and licensing of motor
vehicle drivers so as to ban the reckless and irresponsible and a sustained education
campaign to instill safe driving habits and attitudes that can be carried out for much less
than the P 50 million burden that would be imposed by the challenged order.

I do feel that a greater "degree of receptivity and sympathy" could be extended to the
petitioner for his civic mindedness in having filed the present petition g as capricious
and unreasonable the "all pervading police power" of the State instead of throwing the
case out of court and leaving the wrong impression that the exercise of police power
insofar as it may affect the life, liberty and property of any person is no longer subject to
judicial inquiry.

# Separate Opinions

TEEHANKEE, J., dissenting:

I dissent from the majority's peremptory dismissal of the petition and lifting of the restraining order issued on October 19, 1978 against the
blanket enforcement of the requirement that all motor vehicles be equipped with the so-called early warning device, without even hearing the
parties in oral argument as generally required by the Court in original cases of far-reaching consequence such as the case at bar.

Lack of time presents my filing an extended dissent. I only wish to state that the petition advances grave and serious grounds of assailing
"the rules and regulations issued by the Land Transportation Commission under Administrative Order No. 1 and Memorandum Circular No.
32 [which] do not reflect the real intent, noble objectives and spirit of Letter of Instructions No. 229, as amended by Letter of Instructions Nos.
479 and 716, because it is oppressive, unreasonable, arbitrary, confiscatory, nay unconstitutional and contrary to the precepts of our
compassionate New Society," because of the following considerations, inter alia:

1. It is oppressive, arbitrary and discriminatory to require owners of motor vehicles with built-in and more effective and efficient E.W.D.'S such
as "a) blinking lights in the fore and aft of said motor vehicles, 1)) battery-powered blinking lights inside motor vehicles, c) built-in
reflectorized tapes on front and rear bumpers of motor vehicles....... to purchase the E.W.D. specified in the challenged administrative order,
whose effectivity and utility have yet to be demonstrated.

2. The public necessity for the challenged order has yet to be shown. No valid refutation has been made of petitioner's assertion that the
"E.W.D.'s are not too vital to the prevention of nighttime vehicular accidents. Statistics shows that of the 26,000 motor vehicle accidents that
occurred in 1976, only 390 or 1.5 per cent involved rear-end collisions," as to require the purchase and installation of the questioned E.W.D.
for almost 900,000 vehicles throughout the country;

3. The big financial burden to be imposed on all motorists is staggering, and petitioner's assertion that "as of 1975, there were at least
865,037 motor vehicles all over the country requiring E.W.D.'S and at the minimum price of 1156.00 per set, this would mean a consumer
outlay of P 48,451,872.00, or close to P 50 million for the questioned E.W.D.'S "stands unchallenged;

4. No real effort has been made to show that there can be practical and less burdensome alternative road safety devices for stalled vehicles
than the prescribed E.W.D., such as the common petroleum lamps "kinke" which can be placed just as effectively in front of stalled vehicles
on the highways; and

5. There is no imperative need for imposing such a bet requirement on all vehicles. The respondents have not shown that they have availed
of the powers and prerogatives vested in their offices such as ridding the country of dilapidated trucks and vehicles which are the main cause
of the deplorable -highway accidents due to stoned vehicles, establishing an honest and foolproof system of examination and licensing of
motor vehicle drivers so as to ban the reckless and irresponsible and a sustained education campaign to instill safe driving habits and
attitudes that can be carried out for much less than the P 50 million burden that would be imposed by the challenged order.

I do feel that a greater "degree of receptivity and sympathy" could be extended to the petitioner for his civic mindedness in having filed the
present petition g as capricious and unreasonable the "all pervading police power" of the State instead of throwing the case out of court and
leaving the wrong impression that the exercise of police power insofar as it may affect the life, liberty and property of any person is no longer
subject to judicial inquiry.

G.R. No. 139465 January 18, 2000

SECRETARY OF JUSTICE, petitioner,


vs.
HON. RALPH C. LANTION, Presiding Judge, Regional Trial Court of Manila, Branch 25,
and MARK B. JIMENEZ, respondents.

MELO, J.:

The individual citizen is but a speck of particle or molecule vis--vis the vast and overwhelming
powers of government. His only guarantee against oppression and tyranny are his fundamental
liberties under the Bill of Rights which shield him in times of need. The Court is now called to
decide whether to uphold a citizen's basic due process rights, or the government's ironclad duties
under a treaty. The bugle sounds and this Court must once again act as the faithful guardian of
the fundamental writ.

The petition at our doorstep is cast against the following factual backdrop:

On January 13, 1977, then President Ferdinand E. Marcos issued Presidential Decree No. 1069
"Prescribing the Procedure for the Extradition of Persons Who Have Committed Crimes in a
Foreign Country". The Decree is founded on: the doctrine of incorporation under the
Constitution; the mutual concern for the suppression of crime both in the state where it was
committed and the state where the criminal may have escaped; the extradition treaty with the
Republic of Indonesia and the intention of the Philippines to enter into similar treaties with other
interested countries; and the need for rules to guide the executive department and the courts in
the proper implementation of said treaties.

On November 13, 1994, then Secretary of Justice Franklin M. Drilon, representing the
Government of the Republic of the Philippines, signed in Manila the "Extradition Treaty
Between the Government of the Republic of the Philippines and the Government of the United
States of America" (hereinafter referred to as the RP-US Extradition Treaty). The Senate, by way
of Resolution No. 11, expressed its concurrence in the ratification of said treaty. It also expressed
its concurrence in the Diplomatic Notes correcting Paragraph (5)(a), Article 7 thereof (on the
admissibility of the documents accompanying an extradition request upon certification by the
principal diplomatic or consular officer of the requested state resident in the Requesting State).

On June 18, 1999, the Department of Justice received from the Department of Foreign Affairs
U.S. Note Verbale No. 0522 containing a request for the extradition of private respondent Mark
Jimenez to the United States. Attached to the Note Verbale were the Grand Jury Indictment, the
warrant of arrest issued by the U.S. District Court, Southern District of Florida, and other
supporting documents for said extradition. Based on the papers submitted, private respondent
appears to be charged in the United States with violation of the following provisions of the
United States Code (USC):

A) 18 USC 371 (Conspiracy to commit offense or to defraud the United States; two [2]
counts; Maximum Penalty 5 years on each count);

B) 26 USC 7201 (Attempt to evade or defeat tax; four [4] counts; Maximum Penalty 5
years on each count);
C) 18 USC 1343 (Fraud by wire, radio, or television; two [2] counts; Maximum Penalty
5 years on each count);

D) 18 USC 1001 (False statement or entries; six [6] counts; Maximum Penalty 5 years
on each count);

E) 2 USC 441f (Election contributions in name of another; thirty-three [33] counts;


Maximum Penalty less than one year).

(p. 14, Rollo.)

On the same day, petitioner issued Department Order No. 249 designating and authorizing a
panel of attorneys to take charge of and to handle the case pursuant to Section 5(1) of
Presidential Decree No. 1069. Accordingly, the panel began with the "technical evaluation and
assessment" of the extradition request and the documents in support thereof. The panel found
that the "official English translation of some documents in Spanish were not attached to the
request and that there are some other matters that needed to be addressed" (p. 15, Rollo).

Pending evaluation of the aforestated extradition documents, private respondent, through


counsel, wrote a letter dated July 1, 1999 addressed to petitioner requesting copies of the official
extradition request from the U.S. Government, as well as all documents and papers submitted
therewith; and that he be given ample time to comment on the request after he shall have
received copies of the requested papers. Private respondent also requested that the proceedings
on the matter be held in abeyance in the meantime.

Later, private respondent requested that preliminary, he be given at least a copy of, or access to,
the request of the United States Government, and after receiving a copy of the Diplomatic Note,
a period of time to amplify on his request.

In response to private respondent's July 1, 1999 letter, petitioner, in a reply-letter dated July 13,
1999 (but received by private respondent only on August 4, 1999), denied the foregoing requests
for the following reasons:

1. We find it premature to furnish you with copies of the extradition request and
supporting documents from the United States Government, pending evaluation by this
Department of the sufficiency of the extradition documents submitted in accordance with
the provisions of the extradition treaty and our extradition law. Article 7 of the
Extradition Treaty between the Philippines and the United States enumerates the
documentary requirements and establishes the procedures under which the documents
submitted shall be received and admitted as evidence. Evidentiary requirements under our
domestic law are also set forth in Section 4 of P.D. No. 1069.

Evaluation by this Department of the aforementioned documents is not a preliminary


investigation nor akin to preliminary investigation of criminal cases. We merely
determine whether the procedures and requirements under the relevant law and treaty
have been complied with by the Requesting Government. The constitutionally guaranteed
rights of the accused in all criminal prosecutions are therefore not available.

It is only after the filing of the petition for extradition when the person sought to be
extradited will be furnished by the court with copies of the petition, request and
extradition documents and this Department will not pose any objection to a request for
ample time to evaluate said documents.

2. The formal request for extradition of the United States contains grand jury information
and documents obtained through grand jury process covered by strict secrecy rules under
United States law. The United States had to secure orders from the concerned District
Courts authorizing the United States to disclose certain grand jury information to
Philippine government and law enforcement personnel for the purpose of extradition of
Mr. Jimenez. Any further disclosure of the said information is not authorized by the
United States District Courts. In this particular extradition request the United States
Government requested the Philippine Government to prevent unauthorized disclosure of
the subject information. This Department's denial of your request is consistent with
Article 7 of the RP-US Extradition Treaty which provides that the Philippine Government
must represent the interests of the United States in any proceedings arising out of a
request for extradition. The Department of Justice under P.D. No. 1069 is the counsel of
the foreign governments in all extradition requests.

3. This Department is not in a position to hold in abeyance proceedings in connection


with an extradition request. Article 26 of the Vienna Convention on the Law of Treaties,
to which we are a party provides that "[E]very treaty in force is binding upon the parties
to it and must be performed by them in good faith". Extradition is a tool of criminal law
enforcement and to be effective, requests for extradition or surrender of accused or
convicted persons must be processed expeditiously.

(pp. 77-78, Rollo.)

Such was the state of affairs when, on August 6, 1999, private respondent filed with the Regional
Trial Court of the National Capital Judicial Region a petition against the Secretary of Justice, the
Secretary of Foreign Affairs, and the Director of the National Bureau of Investigation, for
mandamus (to compel herein petitioner to furnish private respondent the extradition documents,
to give him access thereto, and to afford him an opportunity to comment on, or oppose, the
extradition request, and thereafter to evaluate the request impartially, fairly and objectively);
certiorari (to set aside herein petitioner's letter dated July 13, 1999); and prohibition (to restrain
petitioner from considering the extradition request and from filing an extradition petition in
court; and to enjoin the Secretary of Foreign Affairs and the Director of the NBI from performing
any act directed to the extradition of private respondent to the United States), with an application
for the issuance of a temporary restraining order and a writ of preliminary injunction (pp. 104-
105, Rollo).
The aforementioned petition was docketed as Civil Case No. 99-94684 and thereafter raffled to
Branch 25 of said regional trial court stationed in Manila which is presided over by the
Honorable Ralph C. Lantion.

After due notice to the parties, the case was heard on August 9, 1999. Petitioner, who appeared in
his own behalf, moved that he be given ample time to file a memorandum, but the same was
denied.

On August 10, 1999, respondent judge issued an order dated the previous day, disposing:

WHEREFORE, this Court hereby Orders the respondents, namely: the Secretary of
Justice, the Secretary of Foreign Affairs and the Director of the National Bureau of
Investigation, their agents and/or representatives to maintain the status quo by refraining
from committing the acts complained of; from conducting further proceedings in
connection with the request of the United States Government for the extradition of the
petitioner; from filing the corresponding Petition with a Regional Trial court; and from
performing any act directed to the extradition of the petitioner to the United States, for a
period of twenty (20) days from service on respondents of this Order, pursuant to Section
5, Rule 58 of the 1997 Rules of Court.

The hearing as to whether or not this Court shall issue the preliminary injunction, as
agreed upon by the counsels for the parties herein, is set on August 17, 1999 at 9:00
o'clock in the morning. The respondents are, likewise, ordered to file their written
comment and/or opposition to the issuance of a Preliminary Injunction on or before said
date.

SO ORDERED.

(pp. 110-111, Rollo.)

Forthwith, petitioner initiated the instant proceedings, arguing that:

PUBLIC RESPONDENT ACTED WITHOUT OR IN EXCESS OF JURISDICTION OR


WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN ISSUING THE TEMPORARY RESTRAINING ORDER
BECAUSE:

I.

BY ORDERING HEREIN PETITIONER TO REFRAIN FROM COMMITTING THE


ACTS COMPLAINED OF, I.E., TO DESIST FROM REFUSING PRIVATE
RESPONDENT ACCESS TO THE OFFICIAL EXTRADITION REQUEST AND
DOCUMENTS AND FROM DENYING PRIVATE RESPONDENT AN
OPPORTUNITY TO FILE A COMMENT ON, OR OPPOSITION TO, THE REQUEST,
THE MAIN PRAYER FOR A WRIT OF MANDAMUS IN THE PETITION FOR
MANDAMUS, CERTIORARI AND PROHIBITION WAS, IN EFFECT, GRANTED SO
AS TO CONSTITUTE AN ADJUDICATION ON THE MERITS OF THE MANDAMUS
ISSUES;

II.

PETITIONER WAS UNQUALIFIEDLY PREVENTED FROM PERFORMING LEGAL


DUTIES UNDER THE EXTRADITION TREATY AND THE PHILIPPINE
EXTRADITION LAW;

III.

THE PETITION FOR (MANDAMUS), CERTIORARI AND PROHIBITION IS, ON ITS


FACE, FORMALLY AND SUBSTANTIALLY DEFICIENT; AND

IV.

PRIVATE RESPONDENT HAS NO RIGHT IN ESSE THAT NEEDS PROTECTION


AND ENFORCEMENT, AND WILL NOT SUFFER ANY IRREPARABLE INJURY.

(pp. 19-20, Rollo.)

On August 17, 1999, the Court required private respondent to file his comment. Also issued, as
prayed for, was a temporary restraining order (TRO) providing:

NOW, THEREFORE, effective immediately and continuing until further orders from this
Court, You, Respondent Judge Ralph C. Lantion, your agents, representatives or any
person or persons acting in your place or stead are hereby ORDERED to CEASE and
DESIST from enforcing the assailed order dated August 9, 1999 issued by public
respondent in Civil Case No. 99-94684.

GIVEN by the Honorable HILARIO G. DAVIDE, JR., Chief Justice, Supreme Court of
the Philippines, this 17th day of August 1999.

(pp. 120-121, Rollo.)

The case was heard on oral argument on August 31, 1999, after which the parties, as directed,
filed their respective memoranda.

From the pleadings of the opposing parties, both procedural and substantive issues are patent.
However, a review of these issues as well as the extensive arguments of both parties, compel us
to delineate the focal point raised by the pleadings: During the evaluation stage of the extradition
proceedings, is private respondent entitled to the two basic due process rights of notice and
hearing? An affirmative answer would necessarily render the proceedings at the trial court, moot
and academic (the issues of which are substantially the same as those before us now), while a
negative resolution would call for the immediate lifting of the TRO issued by this Court dated
August 24, 1999, thus allowing petitioner to fast-track the process leading to the filing of the
extradition petition with the proper regional trial court. Corollarily, in the event that private
respondent is adjudged entitled to basic due process rights at the evaluation stage of the
extradition proceedings, would this entitlement constitute a breach of the legal commitments and
obligations of the Philippine Government under the RP-US Extradition Treaty? And assuming
that the result would indeed be a breach, is there any conflict between private respondent's basic
due process rights and the provisions of the RP-US Extradition Treaty?

The issues having transcendental importance, the Court has elected to go directly into the
substantive merits of the case, brushing aside peripheral procedural matters which concern the
proceedings in Civil Case No. 99-94684, particularly the propriety of the filing of the petition
therein, and of the issuance of the TRO of August 17, 1999 by the trial court.

To be sure, the issues call for a review of the extradition procedure. The RP-US Extradition
Treaty which was executed only on November 13, 1994, ushered into force the implementing
provisions of Presidential Decree No. 1069, also called as the Philippine Extradition Law.
Section 2(a) thereof defines extradition as "the removal of an accused from the Philippines with
the object of placing him at the disposal of foreign authorities to enable the requesting state or
government to hold him in connection with any criminal investigation directed against him or the
execution of a penalty imposed on him under the penal or criminal law of the requesting state or
government." The portions of the Decree relevant to the instant case which involves a charged
and not convicted individual, are abstracted as follows:

The Extradition Request

The request is made by the Foreign Diplomat of the Requesting State, addressed to the Secretary
of Foreign Affairs, and shall be accompanied by:

1. The original or an authentic copy of the criminal charge and the warrant of arrest
issued by the authority of the Requesting State having jurisdiction over the matter, or
some other instruments having equivalent legal force;

2. A recital of the acts for which extradition is requested, with the fullest particulars as to
the name and identity of the accused, his whereabouts in the Philippines, if known, the
acts or omissions complained of, and the time and place of the commission of these acts;

3. The text of the applicable law or a statement of the contents of said law, and the
designation or description of the offense by the law, sufficient for evaluation of the
request; and

4. Such other documents or information in support of the request.

(Sec. 4. Presidential Decree No. 1069.)

Sec. 5 of the Presidential Decree, which sets forth the duty of the Secretary of Foreign Affairs,
pertinently provides
. . . (1) Unless it appears to the Secretary of Foreign Affairs that the request fails to meet
the requirements of this law and the relevant treaty or convention, he shall forward the
request together with the related documents to the Secretary of Justice, who shall
immediately designate and authorize an attorney in his office to take charge of the case.

The above provision shows only too clearly that the executive authority given the task of
evaluating the sufficiency of the request and the supporting documents is the Secretary of
Foreign Affairs. What then is the coverage of this task?

In accordance with Paragraphs 2 and 3, Article 7 of the RP-US Extradition Treaty, the executive
authority must ascertain whether or not the request is supported by:

1. Documents, statements, or other types of information which describe the identity and
probable location of the person sought;

2. A statement of the facts of the offense and the procedural history of the case;

3. A statement of the provisions of the law describing the essential elements of the
offense for which extradition is requested;

4. A statement of the provisions of law describing the punishment for the offense;

5. A statement of the provisions of the law describing any time limit on the prosecution or
the execution of punishment for the offense;

6. Documents, statements, or other types of information specified in paragraph 3 or


paragraph 4 of said Article, as applicable.

(Paragraph 2, Article 7, Presidential Decree No. 1069.)

7. Such evidence as, according to the law of the Requested State, would provide probable
cause for his arrest and committal for trial if the offense had been committed there;

8. A copy of the warrant or order of arrest issued by a judge or other competent authority;
and

9. A copy of the charging document.

(Paragraph 3, ibid.)

The executive authority (Secretary of Foreign Affairs) must also see to it that the accompanying
documents received in support of the request had been certified by the principal diplomatic or
consular officer of the Requested State resident in the Requesting State (Embassy Note No. 052
from U. S. Embassy; Embassy Note No. 951309 from the Department of Foreign Affairs).
In this light, Paragraph 3, Article 3 of the Treaty provides that "[e]xtradition shall not be granted
if the executive authority of the Requested State determines that the request is politically
motivated, or that the offense is a military offense which is not punishable under non-military
penal legislation."

The Extradition Petition

Upon a finding made by the Secretary of Foreign Affairs that the extradition request and its
supporting documents are sufficient and complete in form and substance, he shall deliver the
same to the Secretary of Justice, who shall immediately designate and authorize an attorney in
his office to take charge of the case (Paragraph [1], Section 5, P.D. No. 1069). The lawyer
designated shall then file a written petition with the proper regional trial court of the province or
city, with a prayer that the court take the extradition request under consideration (Paragraph [2],
ibid.).

The presiding judge of the regional trial court, upon receipt of the petition for extradition, shall,
as soon as practicable, issue an order summoning the prospective extraditee to appear and to
answer the petition on the day and hour fixed in the order. The judge may issue a warrant of
arrest if it appears that the immediate arrest and temporary detention of the accused will best
serve the ends of justice (Paragraph [1], Section 6, ibid.), particularly to prevent the flight of the
prospective extraditee.

The Extradition Hearing

The Extradition Law does not specifically indicate whether the extradition proceeding is
criminal, civil, or a special proceeding. Nevertheless, Paragraph [1], Section 9 thereof provides
that in the hearing of the extradition petition, the provisions of the Rules of Court, insofar as
practicable and not inconsistent with the summary nature of the proceedings, shall apply. During
the hearing, Section 8 of the Decree provides that the attorney having charge of the case may,
upon application by the Requesting State, represent the latter throughout the proceedings.

Upon conclusion of the hearing, the court shall render a decision granting the extradition and
giving the reasons therefor upon a showing of the existence of a prima facie case, or dismiss the
petition (Section 10, ibid.). Said decision is appealable to the Court of Appeals, whose decision
shall be final and immediately executory (Section 12, ibid.). The provisions of the Rules of Court
governing appeal in criminal cases in the Court of Appeals shall apply in the aforementioned
appeal, except for the required 15-day period to file brief (Section 13, ibid.).

The trial court determines whether or not the offense mentioned in the petition is extraditable
based on the application of the dual criminality rule and other conditions mentioned in Article 2
of the RP-US Extradition Treaty. The trial court also determines whether or not the offense for
which extradition is requested is a political one (Paragraph [1], Article 3, RP-US Extradition
Treaty).1wphi1.nt
With the foregoing abstract of the extradition proceedings as backdrop, the following query
presents itself: What is the nature of the role of the Department of Justice at the evaluation stage
of the extradition proceedings?

A strict observance of the Extradition Law indicates that the only duty of the Secretary of Justice
is to file the extradition petition after the request and all the supporting papers are forwarded to
him by the Secretary of Foreign Affairs. It is the latter official who is authorized to evaluate the
extradition papers, to assure their sufficiency, and under Paragraph [3], Article 3 of the Treaty, to
determine whether or not the request is politically motivated, or that the offense is a military
offense which is not punishable under non-military penal legislation. Ipso facto, as expressly
provided in Paragraph [1], Section 5 of the Extradition Law, the Secretary of Justice has the
ministerial duty of filing the extradition papers.

However, looking at the factual milieu of the case before us, it would appear that there was
failure to abide by the provisions of Presidential Decree No. 1069. For while it is true that the
extradition request was delivered to the Department of Foreign Affairs on June 17, 1999, the
following day or less than 24 hours later, the Department of Justice received the request,
apparently without the Department of Foreign Affairs discharging its duty of thoroughly
evaluating the same and its accompanying documents. The statement of an assistant secretary at
the Department of Foreign Affairs that his Department, in this regard, is merely acting as a post
office, for which reason he simply forwarded the request to the Department of Justice, indicates
the magnitude of the error of the Department of Foreign Affairs in taking lightly its
responsibilities. Thereafter, the Department of Justice took it upon itself to determine the
completeness of the documents and to evaluate the same to find out whether they comply with
the requirements laid down in the Extradition Law and the RP-US Extradition Treaty. Petitioner
ratiocinates in this connection that although the Department of Justice had no obligation to
evaluate the extradition documents, the Department also had to go over them so as to be able to
prepare an extradition petition (tsn, August 31, 1999, pp. 24-25). Notably, it was also at this stage
where private respondent insisted on the following; (1) the right to be furnished the request and
the supporting papers; (2) the right to be heard which consists in having a reasonable period of
time to oppose the request, and to present evidence in support of the opposition; and (3) that the
evaluation proceedings be held in abeyance pending the filing of private respondent's opposition
to the request.

The two Departments seem to have misread the scope of their duties and authority, one
abdicating its powers and the other enlarging its commission. The Department of Foreign Affairs,
moreover, has, through the Solicitor General, filed a manifestation that it is adopting the instant
petition as its own, indirectly conveying the message that if it were to evaluate the extradition
request, it would not allow private respondent to participate in the process of evaluation.

Plainly then, the record cannot support the presumption of regularity that the Department of
Foreign Affairs thoroughly reviewed the extradition request and supporting documents and that it
arrived at a well-founded judgment that the request and its annexed documents satisfy the
requirements of law. The Secretary of Justice, eminent as he is in the field of law, could not
privately review the papers all by himself. He had to officially constitute a panel of attorneys.
How then could the DFA Secretary or his undersecretary, in less than one day, make the more
authoritative determination?

The evaluation process, just like the extradition proceedings proper, belongs to a class by itself.
It is sui generis. It is not a criminal investigation, but it is also erroneous to say that it is purely
an exercise of ministerial functions. At such stage, the executive authority has the power: (a) to
make a technical assessment of the completeness and sufficiency of the extradition papers; (b) to
outrightly deny the request if on its face and on the face of the supporting documents the crimes
indicated are not extraditable; and (c) to make a determination whether or not the request is
politically motivated, or that the offense is a military one which is not punishable under non-
military penal legislation (tsn, August 31, 1999, pp. 28-29; Article 2 & and Paragraph [3], Article
3, RP-US Extradition Treaty). Hence, said process may be characterized as an investigative or
inquisitorial process in contrast to a proceeding conducted in the exercise of an administrative
body's quasi-judicial power.

In administrative law, a quasi-judicial proceeding involves: (a) taking and evaluation of


evidence; (b) determining facts based upon the evidence presented; and (c) rendering an order or
decision supported by the facts proved (De Leon, Administrative Law: Text and Cases, 1993 ed.,
p. 198, citing Morgan vs. United States, 304 U.S. 1). Inquisitorial power, which is also known as
examining or investigatory power, is one or the determinative powers of an administrative body
which better enables it to exercise its quasi-judicial authority (Cruz, Phil. Administrative Law,
1996 ed., p. 26). This power allows the administrative body to inspect the records and premises,
and investigate the activities, of persons or entities coming under its jurisdiction (Ibid., p. 27), or
to require disclosure of information by means or accounts, records, reports, testimony of
witnesses, production of documents, or otherwise (De Leon, op. cit., p. 64).

The power of investigation consists in gathering, organizing, and analyzing evidence, which is a
useful aid or tool in an administrative agency's performance of its rule-making or quasi-judicial
functions. Notably, investigation is indispensable to prosecution.

In Ruperto v. Torres (100 Phil. 1098 [1957], unreported), the Court had occasion to rule on the
functions of an investigatory body with the sole power of investigation. It does not exercise
judicial functions and its power is limited to investigating the facts and making findings in
respect thereto. The Court laid down the test of determining whether an administrative body is
exercising judicial functions or merely investigatory functions: Adjudication signifies the
exercise of power and authority to adjudicate upon the rights and obligations of the parties before
it. Hence, if the only purpose for investigation is to evaluate evidence submitted before it based
on the facts and circumstances presented to it, and if the agency is not authorized to make a final
pronouncement affecting the parties, then there is an absence of judicial discretion and judgment.

The above description in Ruperto applies to an administrative body authorized to evaluate


extradition documents. The body has no power to adjudicate in regard to the rights and
obligations of both the Requesting State and the prospective extraditee. Its only power is to
determine whether the papers comply with the requirements of the law and the treaty and,
therefore, sufficient to be the basis of an extradition petition. Such finding is thus merely initial
and not final. The body has no power to determine whether or not the extradition should be
effected. That is the role of the court. The body's power is limited to an initial finding of whether
or not the extradition petition can be filed in court.

It is to be noted, however, that in contrast to ordinary investigations, the evaluation procedure is


characterized by certain peculiarities. Primarily, it sets into motion the wheels of the extradition
process. Ultimately, it may result in the deprivation of liberty of the prospective extraditee. This
deprivation can be effected at two stages: First, the provisional arrest of the prospective
extraditee pending the submission of the request. This is so because the Treaty provides that in
case of urgency, a contracting party may request the provisional arrest of the person sought
pending presentation of the request (Paragraph [1], Article 9, RP-US Extradition Treaty), but he
shall be automatically discharged after 60 days if no request is submitted (Paragraph 4).
Presidential Decree No. 1069 provides for a shorter period of 20 days after which the arrested
person could be discharged (Section 20[d]). Logically, although the Extradition Law is silent on
this respect, the provisions only mean that once a request is forwarded to the Requested State, the
prospective extraditee may be continuously detained, or if not, subsequently rearrested
(Paragraph [5], Article 9, RP-US Extradition Treaty), for he will only be discharged if no request
is submitted. Practically, the purpose of this detention is to prevent his possible flight from the
Requested State. Second, the temporary arrest of the prospective extraditee during the pendency
of the extradition petition in court (Section 6, Presidential Decree No. 1069).

Clearly, there is an impending threat to a prospective extraditee's liberty as early as during the
evaluation stage. It is not only an imagined threat to his liberty, but a very imminent one.

Because of these possible consequences, we conclude that the evaluation process is akin to an
administrative agency conducting an investigative proceeding, the consequences of which are
essentially criminal since such technical assessment sets off or commences the procedure for, and
ultimately, the deprivation of liberty of a prospective extraditee. As described by petitioner
himself, this is a "tool" for criminal law enforcement (p. 78, Rollo). In essence, therefore, the
evaluation process partakes of the nature of a criminal investigation. In a number of cases, we
had occasion to make available to a respondent in an administrative case or investigation certain
constitutional rights that are ordinarily available only in criminal prosecutions. Further, as
pointed out by Mr. Justice Mendoza during the oral arguments, there are rights formerly
available only at the trial stage that had been advanced to an earlier stage in the proceedings,
such as the right to counsel and the right against self-incrimination (tsn, August 31, 1999, p. 135;
Escobedo vs. Illinois, 378 U.S. 478; Gideon vs. Wainwright, 372 U.S. 335; Miranda vs. Arizona,
384 U.S. 436).

In Pascual v. Board of Medical Examiners (28 SCRA 344 [1969]), we held that the right against
self-incrimination under Section 17, Article III of the 1987 Constitution which is ordinarily
available only in criminal prosecutions, extends to administrative proceedings which possess a
criminal or penal aspect, such as an administrative investigation of a licensed physician who is
charged with immorality, which could result in his loss of the privilege to practice medicine if
found guilty. The Court, citing the earlier case of Cabal vs. Kapunan (6 SCRA 1059 [1962]),
pointed out that the revocation of one's license as a medical practitioner, is an even greater
deprivation than forfeiture of property.
Cabal vs. Kapunan (supra) involved an administrative charge of unexplained wealth against a
respondent which was filed under Republic Act No. 1379, or the Anti-Graft Law. Again, we
therein ruled that since the investigation may result in forfeiture of property, the administrative
proceedings are deemed criminal or penal, and such forfeiture partakes the nature of a penalty.
There is also the earlier case of Almeda, Sr. vs. Perez (5 SCRA 970 [1962]), where the Court,
citing American jurisprudence, laid down the test to determine whether a proceeding is civil or
criminal: If the proceeding is under a statute such that if an indictment is presented the forfeiture
can be included in the criminal case, such proceeding is criminal in nature, although it may be
civil in form; and where it must be gathered from the statute that the action is meant to be
criminal in its nature, it cannot be considered as civil. If, however, the proceeding does not
involve the conviction of the wrongdoer for the offense charged, the proceeding is civil in nature.

The cases mentioned above refer to an impending threat of deprivation of one's property or
property right. No less is this true, but even more so in the case before us, involving as it does the
possible deprivation of liberty, which, based on the hierarchy of constitutionally protected rights,
is placed second only to life itself and enjoys precedence over property, for while forfeited
property can be returned or replaced, the time spent in incarceration is irretrievable and beyond
recompense.

By comparison, a favorable action in an extradition request exposes a person to eventual


extradition to a foreign country, thus saliently exhibiting the criminal or penal aspect of the
process. In this sense, the evaluation procedure is akin to a preliminary investigation since both
procedures may have the same result the arrest and imprisonment of the respondent or the
person charged. Similar to the evaluation stage of extradition proceedings, a preliminary
investigation, which may result in the filing of an information against the respondent, can
possibly lead to his arrest, and to the deprivation of his liberty.

Petitioner's reliance on Wright vs. Court of Appeals (235 SCRA 241 [1992]) (p. 8, petitioner's
Memorandum) that the extradition treaty is neither a piece of criminal legislation nor a criminal
procedural statute is not well-taken. Wright is not authority for petitioner's conclusion that his
preliminary processing is not akin to a preliminary investigation. The characterization of a treaty
in Wright was in reference to the applicability of the prohibition against an ex post facto law. It
had nothing to do with the denial of the right to notice, information, and hearing.

As early as 1884, the United States Supreme Court ruled that "any legal proceeding enforced by
public authority, whether sanctioned by age or custom, or newly devised in the discretion of the
legislative power, in furtherance of the general public good, which regards and preserved these
principles of liberty and justice, must be held to be due process of law" (Hurtado vs. California,
110 U.S. 516). Compliance with due process requirements cannot be deemed non-compliance
with treaty commitments.

The United States and the Philippines share a mutual concern about the suppression and
punishment of crime in their respective jurisdictions. At the same time, both States accord
common due process protection to their respective citizens.
The due process clauses in the American and Philippine Constitutions are not only worded in
exactly identical language and terminology, but more importantly, they are alike in what their
respective Supreme Courts have expounded as the spirit with which the provisions are informed
and impressed, the elasticity in their interpretation, their dynamic and resilient character which
make them capable of meeting every modern problem, and their having been designed from
earliest time to the present to meet the exigencies of an undefined and expanding future. The
requirements of due process are interpreted in both the United States and the Philippines as not
denying to the law the capacity for progress and improvement. Toward this effect and in order to
avoid the confines of a legal straitjacket, the courts instead prefer to have the meaning of the due
process clause "gradually ascertained by the process of inclusion and exclusion in the course of
the decisions of cases as they arise" (Twining vs. New Jersey, 211 U.S. 78). Capsulized, it refers
to "the embodiment of the sporting idea of fair play" (Ermita-Malate Hotel and Motel Owner's
Association vs. City Mayor of Manila, 20 SCRA 849 [1967]). It relates to certain immutable
principles of justice which inhere in the very idea of free government (Holden vs. Hardy, 169
U.S. 366).

Due process is comprised of two components substantive due process which requires the
intrinsic validity of the law in interfering with the rights of the person to his life, liberty, or
property, and procedural due process which consists of the two basic rights of notice and hearing,
as well as the guarantee of being heard by an impartial and competent tribunal (Cruz,
Constitutional Law, 1993 Ed., pp. 102-106).

True to the mandate of the due process clause, the basic rights of notice and hearing pervade not
only in criminal and civil proceedings, but in administrative proceedings as well. Non-
observance of these rights will invalidate the proceedings. Individuals are entitled to be notified
of any pending case affecting their interests, and upon notice, they may claim the right to appear
therein and present their side and to refute the position of the opposing parties (Cruz, Phil.
Administrative Law, 1996 ed., p. 64).

In a preliminary investigation which is an administrative investigatory proceeding, Section 3,


Rule 112 of the Rules of Court guarantees the respondent's basic due process rights, granting him
the right to be furnished a copy of the complaint, the affidavits, and other supporting documents,
and the right to submit counter-affidavits and other supporting documents within ten days from
receipt thereof. Moreover, the respondent shall have the right to examine all other evidence
submitted by the complainant.

These twin rights may, however, be considered dispensable in certain instances, such as:

1. In proceeding where there is an urgent need for immediate action, like the summary
abatement of a nuisance per se (Article 704, Civil Code), the preventive suspension of a
public servant facing administrative charges (Section 63, Local Government Code, B.P.
Blg. 337), the padlocking of filthy restaurants or theaters showing obscene movies or like
establishments which are immediate threats to public health and decency, and the
cancellation of a passport of a person sought for criminal prosecution;
2. Where there is tentativeness of administrative action, that is, where the respondent is
not precluded from enjoying the right to notice and hearing at a later time without
prejudice to the person affected, such as the summary distraint and levy of the property of
a delinquent taxpayer, and the replacement of a temporary appointee; and

3. Where the twin rights have previously been offered but the right to exercise them had
not been claimed.

Applying the above principles to the case at bar, the query may be asked: Does the evaluation
stage of the extradition proceedings fall under any of the described situations mentioned above?

Let us take a brief look at the nature of American extradition proceedings which are quite
noteworthy considering that the subject treaty involves the U.S. Government.

American jurisprudence distinguishes between interstate rendition or extradition which is based


on the Extradition Clause in the U.S. Constitution (Art. IV, 2 cl 2), and international extradition
proceedings. In interstate rendition or extradition, the governor of the asylum state has the duty
to deliver the fugitive to the demanding state. The Extradition Clause and the implementing
statute are given a liberal construction to carry out their manifest purpose, which is to effect the
return as swiftly as possible of persons for trial to the state in which they have been charged with
crime (31A Am Jur 2d 754-755). In order to achieve extradition of an alleged fugitive, the
requisition papers or the demand must be in proper form, and all the elements or jurisdictional
facts essential to the extradition must appear on the face of the papers, such as the allegation that
the person demanded was in the demanding state at the time the offense charged was committed,
and that the person demanded is charged with the commission of the crime or that prosecution
has been begun in the demanding state before some court or magistrate (35 C.J.S. 406-407). The
extradition documents are then filed with the governor of the asylum state, and must contain such
papers and documents prescribed by statute, which essentially include a copy of the instrument
charging the person demanded with a crime, such as an indictment or an affidavit made before a
magistrate. Statutory requirements with respect to said charging instrument or papers are
mandatory since said papers are necessary in order to confer jurisdiction on the government of
the asylum state to effect extradition (35 C.J.S. 408-410). A statutory provision requiring
duplicate copies of the indictment, information, affidavit, or judgment of conviction or sentence
and other instruments accompanying the demand or requisitions be furnished and delivered to
the fugitive or his attorney is directory. However, the right being such a basic one has been held
to be a right mandatory on demand (Ibid., p. 410, citing Ex parte Moore, 256 S.W. 2d 103, 158
Tex. Cr. 407 and Ex parte Tucker, Cr., 324, S.W.2d 853).

In international proceedings, extradition treaties generally provide for the presentation to the
executive authority of the Requested State of a requisition or demand for the return of the alleged
offender, and the designation of the particular officer having authority to act in behalf of the
demanding nation (31A Am Jur 2d 815).

In petitioner's memorandum filed on September 15, 1999, he attached thereto a letter dated
September 13, 1999 from the Criminal Division of the U.S. Department of Justice, summarizing
the U.S. extradition procedures and principles, which are basically governed by a combination of
treaties (with special reference to the RP-US Extradition Treaty), federal statutes, and judicial
decisions, to wit:

1. All requests for extradition are transmitted through the diplomatic channel. In urgent
cases, requests for the provincial arrest of an individual may be made directly by the
Philippine Department of Justice to the U.S. Department of Justice, and vice-versa. In the
event of a provisional arrest, a formal request for extradition is transmitted subsequently
through the diplomatic channel.

2. The Department of State forwards the incoming Philippine extradition request to the
Department of Justice. Before doing so, the Department of State prepares a declaration
confirming that a formal request has been made, that the treaty is in full force and effect,
that under Article 17 thereof the parties provide reciprocal legal representation in
extradition proceedings, that the offenses are covered as extraditable offenses under
Article 2 thereof, and that the documents have been authenticated in accordance with the
federal statute that ensures admissibility at any subsequent extradition hearing.

3. A judge or magistrate judge is authorized to issue a warrant for the arrest of the
prospective extraditee (18 U.S.C. 3184). Said judge or magistrate is authorized to hold a
hearing to consider the evidence offered in support of the extradition request (Ibid.)

4. At the hearing, the court must determine whether the person arrested is extraditable to
the foreign country. The court must also determine that (a) it has jurisdiction over the
defendant and jurisdiction to conduct the hearing; (b) the defendant is being sought for
offenses for which the applicable treaty permits extradition; and (c) there is probable
cause to believe that the defendant is the person sought and that he committed the
offenses charged (Ibid.)

5. The judge or magistrate judge is vested with jurisdiction to certify extraditability after
having received a "complaint made under oath, charging any person found within his
jurisdiction" with having committed any of the crimes provided for by the governing
treaty in the country requesting extradition (Ibid.) [In this regard, it is noted that a long
line of American decisions pronounce that international extradition proceedings partake
of the character of a preliminary examination before a committing magistrate, rather than
a trial of the guilt or innocence of the alleged fugitive (31A Am Jur 2d 826).]

6. If the court decides that the elements necessary for extradition are present, it
incorporates its determinations in factual findings and conclusions of law and certifies the
person's extraditability. The court then forwards this certification of extraditability to the
Department of State for disposition by the Secretary of State. The ultimate decision
whether to surrender an individual rests with the Secretary of State (18 U.S.C. 3186).

7. The subject of an extradition request may not litigate questions concerning the motives
of the requesting government in seeking his extradition. However, a person facing
extradition may present whatever information he deems relevant to the Secretary of State,
who makes the final determination whether to surrender an individual to the foreign
government concerned.

From the foregoing, it may be observed that in the United States, extradition begins and ends
with one entity the Department of State which has the power to evaluate the request and
the extradition documents in the beginning, and, in the person of the Secretary of State, the
power to act or not to act on the court's determination of extraditability. In the Philippine setting,
it is the Department of Foreign Affairs which should make the initial evaluation of the request,
and having satisfied itself on the points earlier mentioned (see pp. 10-12), then forwards the
request to the Department of Justice for the preparation and filing of the petition for extradition.
Sadly, however, the Department of Foreign Affairs, in the instant case, perfunctorily turned over
the request to the Department of Justice which has taken over the task of evaluating the request
as well as thereafter, if so warranted, preparing, filing, and prosecuting the petition for
extradition.

Private respondent asks what prejudice will be caused to the U.S. Government should the person
sought to be extradited be given due process rights by the Philippines in the evaluation stage. He
emphasizes that petitioner's primary concern is the possible delay in the evaluation process.

We agree with private respondent's citation of an American Supreme Court ruling:

The establishment of prompt efficacious procedures to achieve legitimate state ends is a


proper state interest worthy of cognizance in constitutional adjudication. But the
Constitution recognizes higher values than speed and efficiency. Indeed, one might fairly
say of the Bill of Rights in general, and the Due Process Clause, in particular, that they
were designed to protect the fragile values of a vulnerable citizenry from the overbearing
concern for efficiency and efficacy that may characterize praiseworthy government
officials no less, and perhaps more, than mediocre ones.

(Stanley vs. Illinois, 404 U.S. 645, 656)

The United States, no doubt, shares the same interest as the Philippine Government that no right
that of liberty secured not only by the Bills of Rights of the Philippines Constitution but of
the United States as well, is sacrificed at the altar of expediency.

(pp. 40-41, Private Respondent's Memorandum.)

In the Philippine context, this Court's ruling is invoked:

One of the basic principles of the democratic system is that where the rights of the
individual are concerned, the end does not justify the means. It is not enough that there be
a valid objective; it is also necessary that the means employed to pursue it be in keeping
with the Constitution. Mere expediency will not excuse constitutional shortcuts. There is
no question that not even the strongest moral conviction or the most urgent public need,
subject only to a few notable exceptions, will excuse the bypassing of an individual's
rights. It is no exaggeration to say that a person invoking a right guaranteed under Article
III of the Constitution is a majority of one even as against the rest of the nation who
would deny him that right (Association of Small Landowners in the Philippines, Inc. vs.
Secretary of Agrarian Reform, 175 SCRA 343, 375-376 [1989]).

There can be no dispute over petitioner's argument that extradition is a tool of criminal law
enforcement. To be effective, requests for extradition or the surrender of accused or convicted
persons must be processed expeditiously. Nevertheless, accelerated or fast-tracked proceedings
and adherence to fair procedures are, however, not always incompatible. They do not always
clash in discord. Summary does not mean precipitous haste. It does not carry a disregard of the
basic principles inherent in "ordered liberty."

Is there really an urgent need for immediate action at the evaluation stage? At that point, there is
no extraditee yet in the strict sense of the word. Extradition may or may not occur. In interstate
extradition, the governor of the asylum state may not, in the absence of mandatory statute, be
compelled to act favorably (37 C.J.S. 387) since after a close evaluation of the extradition
papers, he may hold that federal and statutory requirements, which are significantly
jurisdictional, have not been met (31 Am Jur 2d 819). Similarly, under an extradition treaty, the
executive authority of the requested state has the power to deny the behest from the requesting
state. Accordingly, if after a careful examination of the extradition documents the Secretary of
Foreign Affairs finds that the request fails to meet the requirements of the law and the treaty, he
shall not forward the request to the Department of Justice for the filing of the extradition petition
since non-compliance with the aforesaid requirements will not vest our government with
jurisdiction to effect the extradition.

In this light, it should be observed that the Department of Justice exerted notable efforts in
assuring compliance with the requirements of the law and the treaty since it even informed the
U.S. Government of certain problems in the extradition papers (such as those that are in Spanish
and without the official English translation, and those that are not properly authenticated). In
fact, petitioner even admits that consultation meetings are still supposed to take place between
the lawyers in his Department and those from the U.S. Justice Department. With the meticulous
nature of the evaluation, which cannot just be completed in an abbreviated period of time due to
its intricacies, how then can we say that it is a proceeding that urgently necessitates immediate
and prompt action where notice and hearing can be dispensed with?

Worthy of inquiry is the issue of whether or not there is tentativeness of administrative action. Is
private respondent precluded from enjoying the right to notice and hearing at a later time without
prejudice to him? Here lies the peculiarity and deviant characteristic of the evaluation procedure.
On one hand there is yet no extraditee, but ironically on the other, it results in an administrative
if adverse to the person involved, may cause his immediate incarceration. The grant of the
request shall lead to the filing of the extradition petition in court. The "accused" (as Section 2[c]
of Presidential Decree No. 1069 calls him), faces the threat of arrest, not only after the
extradition petition is filed in court, but even during the evaluation proceeding itself by virtue of
the provisional arrest allowed under the treaty and the implementing law. The prejudice to the
"accused" is thus blatant and manifest.
Plainly, the notice and hearing requirements of administrative due process cannot be dispensed
with and shelved aside.

Apart from the due process clause of the Constitution, private respondent likewise invokes
Section 7 of Article III which reads:

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.

The above provision guarantees political rights which are available to citizens of the Philippines,
namely: (1) the right to information on matters of public concern, and (2) the corollary right of
access to official records documents. The general right guaranteed by said provision is the right
to information on matters of public concern. In its implementation, the right of access to official
records is likewise conferred. These cognate or related rights are "subject to limitations as may
be provided by law" (Bernas, The 1987 Phil. Constitution A Reviewer-Primer, 1997 ed., p. 104)
and rely on the premise that ultimately it is an informed and critical public opinion which alone
can protect the values of democratic government (Ibid.).

Petitioner argues that the matters covered by private respondent's letter-request dated July 1,
1999 do not fall under the guarantee of the foregoing provision since the matters contained in the
documents requested are not of public concern. On the other hand, private respondent argues that
the distinction between matters vested with public interest and matters which are of purely
private interest only becomes material when a third person, who is not directly affected by the
matters requested, invokes the right to information. However, if the person invoking the right is
the one directly affected thereby, his right to information becomes absolute.

The concept of matters of public concerns escapes exact definition. Strictly speaking, every act
of a public officer in the conduct of the governmental process is a matter of public concern
(Bernas, The 1987 Constitution of the Republic of the Philippines, 1996 ed., p. 336). This
concept embraces a broad spectrum of subjects which the public may want to know, either
because these directly affect their lives or simply because such matters arouse the interest of an
ordinary citizen (Legaspi v. Civil Service Commission, 150 SCRA 530 [1987]). Hence, the real
party in interest is the people and any citizen has "standing".

When the individual himself is involved in official government action because said action has a
direct bearing on his life, and may either cause him some kind of deprivation or injury, he
actually invokes the basic right to be notified under Section 1 of the Bill of Rights and not
exactly the right to information on matters of public concern. As to an accused in a criminal
proceeding, he invokes Section 14, particularly the right to be informed of the nature and cause
of the accusation against him.

The right to information is implemented by the right of access to information within the control
of the government (Bernas, The 1987 Constitution of the Republic of the Philippines, 1996 ed.,
p. 337). Such information may be contained in official records, and in documents and papers
pertaining to official acts, transactions, or decisions.

In the case at bar, the papers requested by private respondent pertain to official government
action from the U.S. Government. No official action from our country has yet been taken.
Moreover, the papers have some relation to matters of foreign relations with the U.S.
Government. Consequently, if a third party invokes this constitutional provision, stating that the
extradition papers are matters of public concern since they may result in the extradition of a
Filipino, we are afraid that the balance must be tilted, at such particular time, in favor of the
interests necessary for the proper functioning of the government. During the evaluation
procedure, no official governmental action of our own government has as yet been done; hence
the invocation of the right is premature. Later, and in contrast, records of the extradition hearing
would already fall under matters of public concern, because our government by then shall have
already made an official decision to grant the extradition request. The extradition of a fellow
Filipino would be forthcoming.

We now pass upon the final issue pertinent to the subject matter of the instant controversy:
Would private respondent's entitlement to notice and hearing during the evaluation stage of the
proceedings constitute a breach of the legal duties of the Philippine Government under the RP-
Extradition Treaty? Assuming the answer is in the affirmative, is there really a conflict between
the treaty and the due process clause in the Constitution?

First and foremost, let us categorically say that this is not the proper time to pass upon the
constitutionality of the provisions of the RP-US Extradition Treaty nor the Extradition Law
implementing the same. We limit ourselves only to the effect of the grant of the basic rights of
notice and hearing to private respondent on foreign relations.

The rule of pacta sunt servanda, one of the oldest and most fundamental maxims of international
law, requires the parties to a treaty to keep their agreement therein in good faith. The observance
of our country's legal duties under a treaty is also compelled by Section 2, Article II of the
Constitution which provides that "[t]he Philippines renounces war as an instrument of national
policy, adopts the generally accepted principles of international law as part of the law of the land,
and adheres to the policy of peace, equality, justice, freedom, cooperation and amity with
nations." Under the doctrine of incorporation, rules of international law form part of the law of
the and land no further legislative action is needed to make such rules applicable in the domestic
sphere (Salonga & Yap, Public International Law, 1992 ed., p. 12).

The doctrine of incorporation is applied whenever municipal tribunals (or local courts) are
confronted with situations in which there appears to be a conflict between a rule of international
law and the provisions of the constitution or statute of the local state. Efforts should first be
exerted to harmonize them, so as to give effect to both since it is to be presumed that municipal
law was enacted with proper regard for the generally accepted principles of international law in
observance of the observance of the Incorporation Clause in the above-cited constitutional
provision (Cruz, Philippine Political Law, 1996 ed., p. 55). In a situation, however, where the
conflict is irreconcilable and a choice has to be made between a rule of international law and
municipal law, jurisprudence dictates that municipal law should be upheld by the municipal
courts (Ichong vs. Hernandez, 101 Phil. 1155 [1957]; Gonzales vs. Hechanova, 9 SCRA 230
[1963]; In re: Garcia, 2 SCRA 984 [1961]) for the reason that such courts are organs of
municipal law and are accordingly bound by it in all circumstances (Salonga & Yap, op. cit., p.
13). The fact that international law has been made part of the law of the land does not pertain to
or imply the primacy of international law over national or municipal law in the municipal sphere.
The doctrine of incorporation, as applied in most countries, decrees that rules of international law
are given equal standing with, but are not superior to, national legislative enactments.
Accordingly, the principle lex posterior derogat priori takes effect a treaty may repeal a
statute and a statute may repeal a treaty. In states where the constitution is the highest law of the
land, such as the Republic of the Philippines, both statutes and treaties may be invalidated if they
are in conflict with the constitution (Ibid.).

In the case at bar, is there really a conflict between international law and municipal or national
law? En contrario, these two components of the law of the land are not pined against each other.
There is no occasion to choose which of the two should be upheld. Instead, we see a void in the
provisions of the RP-US Extradition Treaty, as implemented by Presidential Decree No. 1069, as
regards the basic due process rights of a prospective extraditee at the evaluation stage of
extradition proceedings. From the procedures earlier abstracted, after the filing of the extradition
petition and during the judicial determination of the propriety of extradition, the rights of notice
and hearing are clearly granted to the prospective extraditee. However, prior thereto, the law is
silent as to these rights. Reference to the U.S. extradition procedures also manifests this silence.

Petitioner interprets this silence as unavailability of these rights. Consequently, he describes the
evaluation procedure as an "ex parte technical assessment" of the sufficiency of the extradition
request and the supporting documents.

We disagree.

In the absence of a law or principle of law, we must apply the rules of fair play. An application of
the basic twin due process rights of notice and hearing will not go against the treaty or the
implementing law. Neither the Treaty nor the Extradition Law precludes these rights from a
prospective extraditee. Similarly, American jurisprudence and procedures on extradition pose no
proscription. In fact, in interstate extradition proceedings as explained above, the prospective
extraditee may even request for copies of the extradition documents from the governor of the
asylum state, and if he does, his right to be supplied the same becomes a demandable right (35
C.J.S. 410).

Petitioner contends that the United States requested the Philippine Government to prevent
unauthorized disclosure of confidential information. Hence, the secrecy surrounding the action of
the Department of Justice Panel of Attorneys. The confidentiality argument is, however,
overturned by petitioner's revelation that everything it refuses to make available at this stage
would be obtainable during trial. The Department of Justice states that the U.S. District Court
concerned has authorized the disclosure of certain grand jury information. If the information is
truly confidential, the veil of secrecy cannot be lifted at any stage of the extradition proceedings.
Not even during trial.
A libertarian approach is thus called for under the premises.

One will search in vain the RP-US Extradition Treaty, the Extradition Law, as well as American
jurisprudence and procedures on extradition, for any prohibition against the conferment of the
two basic due process rights of notice and hearing during the evaluation stage of the extradition
proceedings. We have to consider similar situations in jurisprudence for an application by
analogy.

Earlier, we stated that there are similarities between the evaluation process and a preliminary
investigation since both procedures may result in the arrest of the respondent or the prospective
extraditee. In the evaluation process, a provisional arrest is even allowed by the Treaty and the
Extradition Law (Article 9, RP-US Extradition Treaty; Sec. 20, Presidential Decree No. 1069).
Following petitioner's theory, because there is no provision of its availability, does this imply that
for a period of time, the privilege of the writ of habeas corpus is suspended, despite Section 15,
Article III of the Constitution which states that "[t]he privilege of the writ or habeas corpus shall
not be suspended except in cases of invasion or rebellion when the public safety requires it"?
Petitioner's theory would also infer that bail is not available during the arrest of the prospective
extraditee when the extradition petition has already been filed in court since Presidential Decree
No. 1069 does not provide therefor, notwithstanding Section 13, Article III of the Constitution
which provides that "[a]ll persons, except those charged with offenses punishable by reclusion
perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient
sureties, or be released on recognizance as may be provided by law. The right to bail shall not be
impaired even when the privilege of the writ of habeas corpus is suspended. . ." Can petitioner
validly argue that since these contraventions are by virtue of a treaty and hence affecting foreign
relations, the aforestated guarantees in the Bill of Rights could thus be subservient thereto?

The basic principles of administrative law instruct us that "the essence of due process in
administrative proceeding is an opportunity to explain one's side or an opportunity to seek
reconsideration of the actions or ruling complained of (Mirano vs. NLRC, 270 SCRA 96 [1997];
Padilla vs. NLRC, 273 SCRA 457 [1997]; PLDT vs. NLRC, 276 SCRA 1 [1997]; Helpmate, Inc.
vs. NLRC, 276 SCRA 315 [1997]; Aquinas School vs. Magnaye, 278 SCRA 602 [1997]; Jamer
vs. NLRC, 278 SCRA 632 [1997]). In essence, procedural due process refers to the method or
manner by which the law is enforced (Corona vs. United Harbor Pilots Association of the Phils.,
283 SCRA 31 [1997]). This Court will not tolerate the least disregard of constitutional guarantees
in the enforcement of a law or treaty. Petitioner's fears that the Requesting State may have valid
objections to the Requested State's non-performance of its commitments under the Extradition
Treaty are insubstantial and should not be given paramount consideration.

How then do we implement the RP-US Extradition Treaty? Do we limit ourselves to the four
corners of Presidential Decree No. 1069?

Of analogous application are the rulings in Government Service Insurance System vs. Court of
Appeals (201 SCRA 661 [1991]) and Go vs. National Police Commission (271 SCRA 447
[1997]) where we ruled that in summary proceedings under Presidential Decree No. 807
(Providing for the Organization of the Civil Service Commission in Accordance with Provisions
of the Constitution, Prescribing its Powers and Functions and for Other Purposes), and
Presidential Decree No. 971 (Providing Legal Assistance for Members of the Integrated National
Police who may be charged for Service-Connected Offenses and Improving the Disciplinary
System in the Integrated National Police, Appropriating Funds Therefor and for other purposes),
as amended by Presidential Decree No. 1707, although summary dismissals may be effected
without the necessity of a formal investigation, the minimum requirements of due process still
operate. As held in GSIS vs. Court of Appeals:

. . . [I]t is clear to us that what the opening sentence of Section 40 is saying is that an
employee may be removed or dismissed even without formal investigation, in certain
instances. It is equally clear to us that an employee must be informed of the charges
preferred against him, and that the normal way by which the employee is so informed is
by furnishing him with a copy of the charges against him. This is a basic procedural
requirement that a statute cannot dispense with and still remain consistent with the
constitutional provision on due process. The second minimum requirement is that the
employee charged with some misfeasance or malfeasance must have a reasonable
opportunity to present his side of the matter, that is to say, his defenses against the
charges levelled against him and to present evidence in support of his defenses. . . .

(at p. 671)

Said summary dismissal proceedings are also non-litigious in nature, yet we upheld the due
process rights of the respondent.

In the case at bar, private respondent does not only face a clear and present danger of loss of
property or employment, but of liberty itself, which may eventually lead to his forcible
banishment to a foreign land. The convergence of petitioner's favorable action on the extradition
request and the deprivation of private respondent's liberty is easily comprehensible.

We have ruled time and again that this Court's equity jurisdiction, which is aptly described as
"justice outside legality," may be availed of only in the absence of, and never against, statutory
law or judicial pronouncements (Smith Bell & Co., Inc. vs. Court of Appeals, 267 SCRA 530
[1997]; David-Chan vs. Court of Appeals, 268 SCRA 677 [1997]). The constitutional issue in the
case at bar does not even call for "justice outside legality," since private respondent's due process
rights, although not guaranteed by statute or by treaty, are protected by constitutional guarantees.
We would not be true to the organic law of the land if we choose strict construction over
guarantees against the deprivation of liberty. That would not be in keeping with the principles of
democracy on which our Constitution is premised.

Verily, as one traverses treacherous waters of conflicting and opposing currents of liberty and
government authority, he must ever hold the oar of freedom in the stronger arm, lest an errant
and wayward course be laid.

WHEREFORE, in view of the foregoing premises, the instant petition is hereby DISMISSED for
lack of merit. Petitioner is ordered to furnish private respondent copies of the extradition request
and its supporting papers, and to grant him a reasonable period within which to file his comment
with supporting evidence. The incidents in Civil Case No. 99-94684 having been rendered moot
and academic by this decision, the same is hereby ordered dismissed.

SO ORDERED.

Bellosillo, Purisima, Buena and De Leon, Jr., JJ., concur.


Davide, Jr., C.J., I join Mr. Justice Puno in his dissent.
Puno, J., please see dissent.
Vitug, J., see separate opinion.
Kapunan, J., see separate concurring opinion.
Panganiban, J., please see my dissenting opinion.
Mendoza, J., I join the dissents of Puno and Panganiban, JJ.
Quisumbing, J., with concurring opinion.
Pardo, J., I join J. Puno & J. Panganiban.
Gonzaga-Reyes, J., I join the dissent of Justices Puno & Panganiban.
Ynares-Santiago, J., please see separate concurring opinion.

Separate Opinions

VITUG, J., separate opinion;

The only real issue before the Court, I would take it, is whether or not private respondent can
validly ask for copies of pertinent documents while the application for extradition against him is
still undergoing process by the Executive Department.

There is, I agree with the majority, a right of access to such extradition documents conformably
with the provisions of Article III, Section 7, of the Philippine Constitution.1 The constitutional
right to free access to information of public concern is circumscribed only by the fact that the
desired information is not among the species exempted by law from the operation of the
constitutional guaranty and that the exercise of the right conforms with such reasonable
conditions as may be prescribed by law.

There is no hornbook rule to determine whether or not an information is of public concern. The
term "public concern" eludes exactitude, and it can easily embrace a broad spectrum of matters
which the public may want to know either because the subject thereof can affect their lives or
simply because it arouses concern.2

I am not convinced that there is something so viciously wrong with, as to deny, the request of
private respondent to be furnished with copies of the extradition documents.

I add. The constitutional right to due process secures to everyone an opportunity to be heard,
presupposing foreknowledge of what he may be up against, and to submit any evidence that he
may wish to proffer in an effort to clear himself. This right is two-pronged substantive and
procedural due process founded, in the first instance, on Constitutional or statutory
provisions, and in the second instance, on accepted rules of procedure.3 Substantive due process
looks into the extrinsic and intrinsic validity of the law that figures to interfere with the right of a
person to his life, liberty and property. Procedural due process the more litigated of the two
focuses on the rules that are established in order to ensure meaningful adjudication in the
enforcement and implementation of the law. Like "public concern," the term due process does
not admit of any restrictive definition. Justice Frankfurter has viewed this flexible concept, aptly
I believe, as being ". . . compounded by history, reason, the past course of decisions, and stout
confidence in the democratic faith."4 The framers of our own Constitution, it would seem, have
deliberately intended, to make it malleable to the ever-changing milieu of society. Hitherto, it is
dynamic and resilient, adaptable to every situation calling for its application that makes it
appropriate to accept an enlarged concept of the term as and when there is a possibility that the
right of an individual to life, liberty and property might be diffused.5 Verily, whenever there is an
imminent threat to the life, liberty or property of any person in any proceeding conducted by or
under the auspices of the State, his right to due process of law, when demanded, must not be
ignored.

A danger to the liberty of the extraditee, the private respondent, is real. Article 9 of the
Extradition Treaty between the Government of the Republic of the Philippines and the
Government of the United States of America provides that in case of urgency, a Contracting
Party may request the provisional arrest of the person prior to the presentation of the request for
extradition. I see implicit in this provision that even after the request for extradition is made and
before a petition for extradition is filed with the courts, the possibility of an arrest being made on
the basis of a mere evaluation by the Executive on the request for extradition by the foreign State
cannot totally be discounted.

The conclusion reached by the majority, I hasten to add, does not mean that the Executive
Department should be impeded in its evaluation of the extradition request. The right of the
extraditee to be furnished, upon request, with a copy of the relevant documents and to file his
comment thereon is not necessarily anathema to the proceedings duly mandated by the treaty to
be made.

I vote to deny the petition.

KAPUNAN, J., separate concurring opinion;

I vote to dismiss the petition, both on technical and substantial grounds.

The petition in the case at bar raises one and only issue, which is the validity of the Temporary
Restraining Order (TRO) issued by respondent Judge Ralph C. Lantion on August 9, 1999 in
Civil Case No. 99-94684. The TRO directed respondents in said case to:

. . . maintain the status quo by refraining from committing the acts complained of; from
conducting further proceedings in connection with the request of the United States
Government for the extradition of the petitioner; from filing the corresponding Petition
with the Regional Trial Court; and from performing any act directed to the extradition of
the petitioner to the United States, for a period of twenty days from the service on
respondents of this Order, pursuant to Section 5, Rule 58 of the 1997 Rules of Court.1
(Emphasis ours.)

The petition itself categorically states that "(t)he issue sought to be presented and litigated here is
solely-the validity of the TRO."2

Notably, there is no allegation in the petition that respondent Judge is without jurisdiction to hear
the case below or that he has exceeded his jurisdiction in hearing the same. Nor is there any other
act, ruling, order, or decision, apart from the TRO already mentioned, of respondent Judge that is
being challenged in the petition before us.

Since, as alleged in the petition, a copy of the TRO was served on respondents below on August
10, 1999, the TRO ceased to be effective on August 30, 1999; consequently, the instant petition
has become moot and academic. This Court does not exercise jurisdiction over cases which are
moot and academic or those not ripe for judicial consideration.3

Assuming that the present case has not become moot and academic, still, it should be dismissed
for lack of merit.

The substantive issues raised in this case are: (a) whether a person whose extradition is sought by
a foreign state has due process rights under Section 2, Article III of the 1997 Constitution before
the Department of Justice as the request for extradition is being evaluated, or whether due
process rights maybe invoked only upon the filing of a petition for extradition before a regional
trial court; and (b) whether or not private respondent has a right of access to extradition
documents under Section 7, Article III of the 1997 Constitution.

Petitioner contends that due process rights such as the right to be informed of the basis of the
request for extradition and to have an opportunity to controvert are not provided in the
extradition treaty or in P.D. 1069 and therefore does not exist in this stage of the proceedings.
Further, he argues that the documents sought to be furnished to private respondent only involve
private concerns, and not matters of public concern to which the people have a constitutional
right to access.

While the evaluation process conducted by the Department of Justice is not exactly a preliminary
investigation of criminal cases, it is akin to a preliminary investigation because it involves the
basic constitutional rights of the person sought to be extradited. A person ordered extradited is
arrested, forcibly taken from his house, separated from his family and delivered to a foreign
state. His rights of abode, to privacy, liberty and pursuit of happiness are taken away from him
a fate as harsh and cruel as a conviction of a criminal offense. For this reason, he is entitled to
have access to the evidence against him and the right to controvert them.

While the extradition treaty and P.D. 1069 do not provide for a preliminary investigation, neither
does either prohibit it. The right to due process is a universal basic right which is deemed written
into our laws and treaties with foreign countries.
Like a preliminary investigation, the evaluation by the Department of Justice of the extradition
request and its accompanying documents is to establish probable cause and to secure the
innocent against hasty, malicious and oppressive prosecution.

In this connection, it should be stressed that the evaluation procedure of the extradition request
and its accompanying documents by the Department of Justice cannot be characterized as a mere
"ex-parte technical assessment of the sufficiency" thereof. The function and responsibilities of
the Department of Justice in evaluating the extradition papers involve the exercise of judgment.
They involve a determination whether the request for extradition conforms fully to the
requirements of the extradition treaty and whether the offense is extraditable. These include,
among others, whether the offense for which extradition is requested is a political or military
offense (Article 3); whether the documents and other informations required under Article 7(2)
have been provided (Article 7); and whether the extraditable offense is punishable under the laws
of both contracting parties by deprivation of liberty for a period of more than one year (Article
2). Consequently, to arrive at a correct judgment, the parties involved are entitled to be heard if
the requirements of due process and equal protection are to be observed.

With respect to petitioner's claim that private respondent has no right to demand access to the
documents relating to the request for extradition, suffice it to say, that any document used in a
proceeding that would jeopardize a person's constitutional rights is matter of public concern. As
Martin Luther King said, "injustice anywhere is a threat to justice everywhere," so any violation
of one's rights guaranteed by the Bill of Rights is everybody's concern because they, one way or
another, directly or indirectly, affect the rights of life and liberty of all the citizens as a whole.

Due process rights in a preliminary investigation is now an established principle. The respondent
has a right of access to all of the evidence. He has the right to submit controverting evidence.
The prosecuting official who conducts the preliminary investigation is required to be neutral,
objective, and impartial in resolving the issue of probable cause. I see no reason why the same
rights may not be accorded a person sought to be extradited at the stage where the Department of
Justice evaluates whether a petition for extradition would be filed before a regional trial court. If
denied such rights, not only denial of due process rights but of equal protection may be raised.

It is suggested that after a petition for extradition is filed with a regional trial court, the person
sought to be extradited may exercise all due process rights. He may then have access to all the
records on the basis of which the request for extradition has been made. He may controvert that
evidence and raise all defenses he may consider appropriate. That, it is urged, meets the due
process requirement.

But why must he wait until the petition for extradition is filed? As succinctly expressed, if the
right to notice and hearing is to serve its full purpose, then, it is clear that it must be granted at a
time when the deprivation can still be prevented.4 Like the filing of an information in a criminal
case, the mere filing of a petition for extradition causes immediate impairment of the liberty of
the person sought to be extradited and a substantial curtailment of other rights. His arrest may be
immediately ordered by the regional trial court. He would be compelled to face an open and
public trial. He will be constrained to seek the assistance of counsel and incur other expenses of
litigation. The public eye would be directed at him with all the concomitant intrusions to his right
to privacy. Where the liberty of a person is at risk, and extradition strikes at the very core of
liberty, invocation of due process rights can never be too early.

QUISUMBING, J., concurring opinion;

As I concur in the result reached by the ponencia of Justice Melo, may I just add my modest
observations.

The human rights of person, whether citizen or alien, and the rights of the accused guaranteed in
our Constitution should take precedence over treaty rights claimed by a contracting state. Stated
otherwise, the constitutionally mandated duties of our government to the individual deserve
preferential consideration when they collide with its treaty obligations to the government of
another state. This is so although we recognize treaties as a source of binding obligations under
generally accepted principles of international law incorporated in our Constitution as part of the
law of the land.

For this primordial reason, I vote to DENY the petition.

Moreover, considering that the Extradition Treaty between the USA and Philippines appears
mute on the specific issue before us, the Court in the exercise of its judicial power to find and
state what the law is has this rare opportunity of setting a precedent that enhances respect for
human rights and strengthens due process of law.

As both majority and dissenting colleagues in the Court will recognize, American authorities
follow two tracks in extradition proceedings: (1) the interstate practice where, pursuant to statute,
the state Executive upon demand furnishes the would be extraditee or counsel copies of pertinent
documents as well as the request for extradition; and (2) the international practice where the
Executive department need not initially grant notice and hearing at all. Rules of reciprocity and
comity, however, should not bar us from applying internationally now what appears the more
reasonable and humane procedure, that is, the interstate practice among Americans themselves.
For in this case the American people should be among the most interested parties.

Truly, what private respondent is asking our Executive department (notice, copies of documents,
and the opportunity to protect himself at the earliest time against probable peril) does not, in my
view, violate our Extradition Treaty with the USA. His request if granted augurs well for
transparency in interstate or intergovernmental relations rather than secrecy which smacks of
medieval diplomacy and the inquisition discredited long ago.

That private respondent is a Filipino citizen is not decisive of the issue here, although it is
obviously pertinent. Even if he were a resident alien (other than American perhaps), he is, in my
view, entitled to our full protection against the hazards of extradition (or deportation, similarly)
from the very start. More so because, looking at the facts adduced at the hearing and on the
record of this case, the charges against him involve or are co-mingled with, if not rooted in,
certain offenses of a political nature or motivation such as the ones involving alleged financial
contributions to a major American political party. If so, long established is the principle that
extradition could not be utilized for political offenses or politically motivated charges.

There may, of course, be other charges against private respondent in the USA. But then they are,
in my view, already tainted there with political color due to the highly charged partisan campaign
atmosphere now prevailing. That private respondent's cases will be exploited as political fodder
there is not far-fetched, hence the need here for cautious but comprehensive deliberation on the
matter at bar. For, above all, it is not only a Treaty provision we are construing; it is about
constitutional and human rights we are most concerned.

YNARES-SANTIAGO, J., concurring opinion;

I concur in the ponencia of Mr. Justice Jose A.R. Melo with its conceptive analysis of a citizen's
right to be given what is due to him. I join in his exposition of this Court's constitutional duty to
strike the correct balance between overwhelming Government power and the protection of
individual rights where only one person is involved.

However, I am constrained to write this short concurrence if only to pose the question of why
there should be any debate at all on a plea for protection of one's liberty which, if granted, will
not result in any meaningful impediment of thwarting any state policy and objectives.

I see no reason why respondent Mark Jimenez, or other citizens not as controversial or talked
about, should first be exposed to the indignity, expense, and anxiety of a public denunciation in
court before he may be informed of what the contracting states in an extradition treaty have
against him. There is no question that everything which respondent Jimenez now requests will be
given to him during trial. Mr. Jimenez is only petitioning that, at this stage, he should be
informed why he may be deported from his own country.

I see no ill effects which would arise if the extradition request and supporting documents are
shown to him now, instead of later.

Petitioner Secretary of Justice states that his action on the extradition request and its supporting
documents will merely determine whether or not the Philippines is complying with its treaty
obligations. He adds that, therefore, the constitutional rights of an accused in all criminal
prosecutions are not available to the private respondent.

The July 13, 1999 reply-letter from petitioner states the reasons why he is denying respondent
Jimenez's requests. In short, the reasons are:

1. In evaluating the documents, the Department merely determines whether the


procedures and requirements under the relevant law and treaty have been complied with
by the Requesting Government. The constitutional rights of the accused in all criminal
prosecutions are, therefore, not available.
2. The United States Government has requested the Philippine Government to prevent
unauthorized disclosure of certain grand jury information.

3. The petitioner cannot hold in abeyance proceedings in connection with an extradition


request. For extradition to be an effective tool of criminal law enforcement, requests for
surrender of accused or convicted persons must be processed expeditiously.

I respectfully submit that any apprehensions in the Court arising from a denial of the petition
"breach of an international obligation, rupture of states relations, forfeiture of confidence,
national embarrassment, and a plethora of other equally undesirable consequences" are more
illusory than real. Our country is not denying the extradition of a person who must be extradited.
Not one provision of the extradition treaty is violated. I cannot imagine the United States taking
issue over what, to it, would be a minor concession, perhaps a slight delay, accorded in the name
of human rights. On the other hand, the issue is fundamental in the Philippines. A citizen is
invoking the protection, in the context of a treaty obligation, of rights expressly guaranteed by
the Philippine Constitution.

Until proved to be a valid subject for extradition, a person is presumed innocent or not covered
by the sanctions of either criminal law or international treaty. At any stage where a still
prospective extraditee only seeks to know so that he can prepare and prove that he should not be
extradited, there should be no conflict over the extension to him of constitutional protections
guaranteed to aliens and citizens alike.

Petitioner cites as a reason for the denial of respondent's requests, Article 7 of the Treaty. Article
7 enumerates the required documents and establishes the procedures under which the documents
shall be submitted and admitted as evidence. There is no specific provision on how that Secretary
of Foreign Affairs should conduct his evaluation. The Secretary of Justice is not even in the
picture at this stage. Under petitioner's theory, silence in the treaty over a citizen's rights during
the evaluation stage is interpreted as deliberate exclusion by the contracting states of the right to
know. Silence is interpreted as the exclusion of the right to a preliminary examination or
preliminary investigation provided by the laws of either one of the two states.

The right to be informed of charges which may lead to court proceedings and result in a
deprivation of liberty is ordinarily routine. It is readily available to one against whom the state's
coercive power has already been focused. I fail to see how silence can be interpreted as
exclusion. The treaty is silent because at this stage, the preliminary procedure is still an internal
matter. And when a law or treaty is silent, it means a right or privilege may be granted. It is not
the other way around.

The second reason alleging the need for secrecy and confidentiality is even less convincing. The
explanation of petitioner is self-contradictory. On one hand, petitioner asserts that the United
States Government requested the Philippine Government to prevent unauthorized disclosure of
certain information. On the other hand, petitioner declares that the United States has already
secured orders from concerned District Courts authorizing the disclosure of the same grand jury
information to the Philippine Government and its law enforcement personnel.
Official permission has been given. The United States has no cause to complain about the
disclosure of information furnished to the Philippines.

Moreover, how can grand jury information and documents be considered confidential if they are
going to be introduced as evidence in adversely proceedings before a trial court? The only issue
is whether or not Mr. Jimenez should be extradited. His innocence or guilt of any crime will be
determined in an American court. It is there where prosecution strategies will be essential. If the
Contracting States believed in a total non-divulging of information prior to court hearings, they
would have so provided in the extradition treaty. A positive provision making certain rights
unavailable cannot be implied from silence.

I cannot believe that the United States and the Philippines with identical constitutional provisions
on due process and basic rights should sustain such a myopic view in a situation where the grant
of a right would not result in any serious setbacks to criminal law enforcement.

It is obvious that any prospective extraditee wants to know if his identity as the person indicated
has been established. Considering the penchant of Asians to adopt American names when in
America, the issue of whether or not the prospective extraditee truly is the person charged in the
United States becomes a valid question. It is not only identity of the person which is involved.
The crimes must also be unmistakably identified and their essential elements clearly stated.

There are other preliminary matters in which respondent is interested. I see nothing in our laws
or in the Treaty which prohibits the prospective extraditee from knowing until after the start of
trial whether or not the extradition treaty applies to him.

Paraphrasing Hasmin vs. Boncan, 71 Phil. 216; Trocio vs. Manta, 118 SCRA 241 (1941); and
Salonga vs. Hon. Pao, 134 SCRA 438 (1985), the purpose of a preliminary evaluation is to
secure an innocent person against hasty, faulty and, therefore, oppressive proceedings; to protect
him from an open and extensively publicized accusation of crimes; to spare him the trouble,
expense, and anxiety of a public trial; and also to protect the state from useless and expensive
trails. Even if the purpose is only to determine whether or not the respondent is a proper subject
for extradition, he is nonetheless entitled to the guarantees of fairness and freedom accorded to
those charged with ordinary crimes in the Philippines.

The third reason given by petitioner is the avoidance of delay. Petitioner views the request to be
informed as part of undesirable delaying tactics. This is most unfortunate. Any request for
extradition must be viewed objectively and impartially without any predisposition to granting it
and, therefore, hastening the extradition process.

In the first place, any assistance which the evaluating official may get from the participation of
respondent may well point out deficiencies and insufficiencies in the extradition documents. It
would incur greater delays if these are discovered only during court trial. On the other hand, if,
from respondent's participation, the evaluating official discovers a case of mistaken identity,
insufficient pleadings, inadequate complaints, or any ruinous shortcoming, there would be no
delays during trial. An unnecessary trial with all its complications would be avoided.
The right to be informed is related to the constitutional right to a speedy trial. The constitutional
guarantee extends to the speedy disposition of cases before all quasi-judicial and administrative
bodies (Constitution, Art. III, Sec. 16). Speedy disposition, however, does not mean the
deliberate exclusion of the defendant or respondent from the proceedings. As this Court rules in
Acebedo vs. Sarmiento, 36 SCRA 247 (1970), "the right to a speedy trial, means one free from
vexatious, capricious and oppressive delays, its salutary objective being to assure that an
innocent person may be free from the anxiety and expense of a court litigation or, if otherwise, of
having his guilt (in this case, his being extradited) determined within the shortest possible time
compatible with the presentation and consideration of whatsoever legitimate defense he may
interpose."

The right to be informed and the right to a preliminary hearing are not merely for respondent.
They also serve the interests of the State.1wphi1.nt

In closing, I maintain that the paramount consideration of guaranteeing the constitutional rights
of individual respondent override the concerns of petitioner. There should be no hurried or
indifferent effort to routinely comply with all requests for extradition. I understand that this is
truer in the United States than in other countries. Proposed extraditees are given every legal
protection available from the American justice system before they are extradited. We serve under
a government of limited powers and inalienable rights. Hence, this concurrence.

PUNO, J., dissenting opinion;

If the case at bar was strictly a criminal case which involves alone the right of an accused to due
process, I would have co-signed the ponencia of our esteemed colleague, Mr. Justice Jose A.R.
Melo, without taking half a pause. But the case at bar does not involve the guilt or innocence of
an accused but the interpretation of an extradition treaty where at stake is our government's
international obligation to surrender to a foreign state a citizen of its own so he can be tried for
an alleged offense committed within that jurisdiction. The issues are of first impression and the
majority opinion dangerously takes us to unknown shoals in constitutional and international
laws, hence this dissenting opinion.

Extradition is a well-defined concept and is more a problem in international law. It is the


"process by which persons charged with or convicted of crime against the law of a State and
found in a foreign State are returned by the latter to the former for trial or punishment. It applies
to those who are merely charged with an offense but have not been brought to trial; to those who
have been tried and convicted and have subsequently escaped from custody; and those who have
been convicted in absentia. It does not apply to persons merely suspected of having committed
an offense but against who no charge has been laid or to a person whose presence is desired as a
witness or for obtaining or enforcing a civil judgment."1 The definition covers the private
respondent who is charged with two (2) counts of conspiracy to commit offense or to defraud the
United States, four (4) counts of attempt to evade or defeat tax, two (2) counts of fraud by wire,
radio or television, six (6) counts of false statements or entries and thirty-three (33) counts of
election contributions in the name of another. There is an outstanding warrant of arrest against
the private respondent issued by the US District Court, Southern District of Florida.

A brief review of the history of extradition law will illumine our labor. Possibly the most
authoritative commentator on extradition today, M. Cherif Bassiouni, divides the history of
extradition into four (4) periods: "(1) ancient times to seventeenth century a period revealing
almost exclusive concern for political and religious offenders; (2) the eighteenth century and half
of the nineteenth century a period of treaty-making chiefly concerned with military offenders
characterizing the condition of Europe during that period; (3) from 1833 to 1948 a period of
collective concern in suppressing common criminality; and (4) post-1948 developments which
ushered in a greater concern for protecting the human rights of persons and revealed an
awareness of the need to have international due process of law regulate international relations."2

It is also rewarding to have a good grip on the changing slopes in the landscape of extradition
during these different periods. Extradition was first practiced by the Egyptians, Chinese,
Chaldeans and Assyro-Babylonians but their basis for allowing extradition was unclear.
Sometimes, it was granted due to pacts; at other times, due to plain good will.3 The classical
commentators on international law thus focused their early views on the nature of the duty to
surrender an extraditee whether the duty is legal or moral in character. Grotius and de Vattel
led the school of thought that international law imposed a legal duty called civitas maxima to
extradite criminals.4 In sharp contrast, Puffendorf and Billot led the school of thought that the so-
called duty was but an "imperfect obligation which could become enforceable only by a contract
or agreement between states.5

Modern nations tilted towards the view of Puffendorf and Billot that under international law
there is no duty to extradite in the absence of treaty, whether bilateral or multilateral. Thus, the
US Supreme Court in US v. Rauscher,6 held: ". . . . it is only in modern times that the nations of
the earth have imposed upon themselves the obligation of delivering up these fugitives from
justice to the states where their crimes were committed, for trial and punishment. This has been
done generally by treaties . . . Prior to these treaties, and apart from them there was no well-
defined obligation on one country to deliver up such fugitives to another; and though such
delivery was often made it was upon the principle of comity . . ."

Then came the long and still ongoing debate on what should be the subject of international law.
The 20th century saw the dramatic rise and fall of different types and hues of authoritarianism
the fascism of Italy's Mussolini and Germany's Hitler, the militarism of Japan's Hirohito and the
communism of Russia's Stalin, etc. The sinking of these isms led to the elevation of the rights of
the individual against the state. Indeed, some species of human rights have already been
accorded universal recognition.7 Today, the drive to internationalize rights of women and
children is also on high gear.8 The higher rating given to human rights in the hierarchy of values
necessarily led to the re-examination of rightful place of the individual in international law.
Given the harshest eye is the moss-covered doctrine that international law deals only with States
and that individuals are not its subject. For its undesirable corrally is the sub-doctrine that an
individual's right in international law is a near cipher. Translated in extradition law, the view that
once commanded a consensus is that since a fugitive is a mere object and not a subject of
international law, he is bereft of rights. An extraditee, so it was held, is a mere "object
transported from one state to the other as an exercise of the sovereign will of the two states
involved."9 The re-examination consigned this pernicious doctrine to the museum of ideas.10 The
new thinkers of international law then gave a significant shape to the role and rights of the
individual in state-concluded treaties and other international agreements. So it was declared by
then US Ambassador Philip C. Jessup in audible italics: "A very large part of international affairs
and, thus, of the process of international accommodation, concerns the relations between legal
persons known as states. This is necessarily so. But it is no longer novel for the particular
interest of the human being to break through the mass of interstate relationship."11 The clarion
call to re-engineer a new world order whose dominant interest would transcend the parochial
confines of national states was not unheeded. Among the world class scholars who joined the
search for the elusive ideological underpinnings of a new world order were Yale Professor Myres
McDougal and Mr. Justice Florentino Feliciano. In their seminal work. Law and Minimum World
Public Order, they suggested that the object of the new world should be "to obtain in particular
situations and in the aggregate flow of situations the outcome of a higher degree of conformity
with the security goals of preservation, deterrence, restoration, rehabilitation and reconstruction
of all societies comprising the world community."12 Needless to stress, all these prescient theses
accelerated the move to recognize certain rights of the individual in international law.

We have yet to see the final and irrevocable place of individual rights, especially the rights of an
extraditee, in the realm of international law. In careful language, Bassiouni observes that today,
"institutionalized conflicts between states are still rationalized in terms of sovereignty, national
interest, and national security, while human interests continue to have limited, though growing
impact on the decision-making processes which translate national values and goals into specific
national and international policy."13

I belabor the international law aspect of extradition as the majority opinion hardly gives it a
sideglance. It is my humble submission that the first consideration that should guide us in the
case at bar is that a bilateral treaty the RP-US Extradition Treaty is the subject matter of
the litigation. In our constitutional scheme, the making of a treaty belongs to the executive and
legislative departments of our government. Between these two departments, the executive has a
greater say in the making of a treaty. Under Section 21, Article VII of our Constitution, the
President has the sole power to negotiate treaties and international agreements although to be
effective, they must be concurred in by at least two thirds of all the members of the Senate.
Section 20 of the same Article empowers the President to contract or guarantee foreign loans
with the prior concurrence of the Monetary Board. Section 16 of the same Article gives the
President the power to appoint ambassadors, other public ministers and consuls subject to
confirmation by the Commission on Appointments. In addition, the President has the power to
deport undesirable aliens. The concentration of these powers in the person of the President is not
without a compelling consideration. The conduct of foreign relations is full of complexities and
consequences, sometimes with life and death significance to the nation especially in times of
war. It can only be entrusted to that department of government which can act on the basis of the
best available information and can decide with decisiveness. Beyond debate, the President is the
single most powerful official in our land for Section 1 of Article VII provides that "the executive
power shall be vested in the President of the Philippines," whereas Section 1 of Article VI states
that "the legislative power shall be vested in the Congress of the Philippines which shall consist
of a Senate and a House of Representatives . . . except to the extent reserved to the people by the
provision on initiative and referendum," while Section 1 of Article VIII provides that "judicial
power shall be vested in one Supreme Court and in such lower courts as may be established by
law." Thus, we can see that executive power is vested in the President alone whereas legislative
and judicial powers are shared and scattered. It is also the President who possesses the most
comprehensive and the most confidential information about foreign countries for our diplomatic
and consular officials regularly brief him on meaningful events all over the world. He has also
unlimited access to ultra-sensitive military intelligence data.14 In fine, the presidential role in
foreign affairs is dominant and the President is traditionally accorded a wider degree of
discretion in the conduct of foreign affairs. The regularity, nay, validity of his actions are
adjudged under less stringent standards, lest their judicial repudiation lead to breach of an
international obligation, rupture of state relations, forfeiture of confidence, national
embarrassment and a plethora of other problems with equally undesirable consequences.

These are some of the dominant policy considerations in international law that the Court must
balance against the claim of the private respondent that he has a right to be given the extradition
documents against him and to comment thereon even while they are still at the evaluation stage
by the petitioner Secretary of Justice, an alter ego of the President. The delicate questions of
what constitutional rights and to what degree they can be claimed by an extraditee do not admit
of easy answers and have resulted in discrete approaches the world over.15 On one end of the
pole is the more liberal European approach. The European Court of Human Rights embraces the
view that an extraditee is entitled to the benefit of all relevant provisions of the European
Convention for the Protection of Human Rights and Fundamental Freedoms. It has held that ". . .
in so far as a measure of the extradition has consequences adversely affecting the enjoyment of a
convention right, it may, assuming that the consequences are not too remote, attract the
obligations of a Contracting State under the relevant convention guarantee."16 At the other end of
the pole is the more cautious approach of the various Courts of Appeal in the United States.
These courts have been more conservative in light of the principle of separation of powers and
their faith in the presumptive validity of executive decisions. By and large, they adhere to the
rule of non-inquiry under which the extraditing court refuses to examine the requesting country's
criminal justice system or consider allegations that the extraditee will be mistreated or denied a
fair trial in that country.17

The case at bar, I respectfully submit, does not involve an irreconcilable conflict between the RP-
US Extradition Treaty and our Constitution where we have to choose one over the other. Rather,
it calls for a harmonization between said treaty and our Constitution. To achieve this desirable
objective, the Court should consider whether the constitutional rights invoked by the private
respondent have truly been violated and even assuming so, whether he will be denied
fundamental fairness. It is only when their violation will destroy the respondent's right to
fundamental fairness that his constitutional claims should be given primacy.

Given this balancing approach, it is my humble submission that considering all the facts and
facets of the case, the private respondent has not proved entitlement to the right he is claiming.
The majority holds that the Constitution, the RP-US extradition and P.D. No. 1069 do not
prohibit respondent's claims, hence, it should be allowed. This is too simplistic an approach.
Rights do not necessarily arise from a vacuum. Silence of the law can even mean an implied
denial of a right. Also, constitutional litigations do not always involve a clear cut choice between
right and wrong. Sometimes, they involve a difficult choice between right against right. In these
situations, there is need to balance the contending rights and primacy is given to the right that
will serve the interest of the nation at that particular time. In such instances, the less compelling
right is subjected to soft restraint but without smothering its essence. Proceeding from this
premise of relativism of rights, I venture the view that even assuming arguendo respondent's
weak claim, still, the degree of denial of private respondent's rights to due process and to
information is too slight to warrant the interposition of judicial power. As admitted in the
ponencia itself, an extradition proceeding is sui generis. It is, thus, futile to determine what it is.
What is certain is that it is not a criminal proceeding where there is an accused who claim the
entire array of rights guaranteed by the Bill of Rights. Let it be stressed that in an extradition
proceeding, there is no accused and the guilt or innocence of the extraditee will not be passed
upon by our executive officials nor by the extradition judge. Hence, constitutional rights that are
only relevant do determine the guilt or innocence of an accused cannot be invoked by an
extraditee. Indeed, an extradition proceeding is summary in nature which is untrue of criminal
proceedings.18 Even the rules of evidence are different in an extradition proceeding. Admission of
evidence is less stringent, again because the guilt of the extraditee is not under litigation.19 It is
not only the quality but even the quantum of evidence in extradition proceeding is different. In a
criminal case, an accused can only be convicted by proof beyond reasonable doubt.20 In an
extradition proceeding, an extraditee can be ordered extradited "upon showing of the existed of a
prima facie case."21 If more need be said, the nature of an extradition decision is different from a
judicial decision whose finality cannot be changed by executive fiat. Our courts22 may hold an
individual extraditable but the ultimate decision to extradite the individual lies in the hands of the
Executive. Section 3, Article 3 of the RP-US Extradition Treaty specifically provides that
"extradition shall not be granted if the executive authority of the Requested State determined that
the request was politically motivated, or that the offense is a military offense which is not
punishable under non-military penal legislation." In the United States, the Secretary of State
exercises this ultimate power and is conceded considerable discretion. He balances the equities
of the case and the demands of the nation's foreign relations.23 In sum, he is not straitjacketed by
strict legal considerations like an ordinary court.

The type of issue litigated in extradition proceedings which does not touch on the guilt or
innocence of the extraditee, the limited nature of the extradition proceeding, the availability of
adequate remedies in favor of the extraditee, and the traditional leeway given to the Executive in
the conduct of foreign affairs have compelled courts to put a high threshold before considering
claims of individuals that enforcement of an extradition treaty will violate their constitutional
rights. Exemplifying such approach is the Supreme Court of Canada which has adopted a highly
deferential standard that emphasizes international comity and the executive's experience in
international matters.24 It continues to deny Canada's charter protection to extraditees unless the
violation can be considered shocking to the conscience.

In the case, at bar and with due respect, the ponencia inflates with too much significance the
threat to liberty of the private respondent to prop us its thesis that his constitutional rights to due
process and access to information must immediately be vindicated. Allegedly, respondent
Jimenez stands in danger of provisional arrest, hence, the need for him to be immediately
furnished copies of documents accompanying the request for his extradition. Respondent's fear
of provisional arrest is not real. It is a self-imagined fear for the realities on the ground show that
the United States authorities have not manifested any desire to request for his arrest. On the
contrary, they filed the extradition request through the regular channel and, even with the
pendency of the case at bar, they have not moved for respondent's arrest on the ground of
probable delay in the proceedings. To be sure, the issue of whether respondent Jimenez will be
provisionally arrested is now moot. Under Section 1 of Article 9 of the RP-US Extradition
Treaty, in relation to Section 20(a) of PD No. 1069, the general principle is enunciated that a
request for provisional arrest must be made pending receipt of the request for extradition. By
filing the request for extradition, the US authorities have implicitly decided not to move for
respondent's provisional arrest. But more important, a request for respondent's arrest does not
mean he will be the victim of an arbitrary arrest. He will be given due process before he can be
arrested. Article 9 of the treaty provides:

PROVISIONAL ARREST

1. In case of urgency, a Contracting Party may request the provisional arrest of the person
sought pending presentation of the request for extradition. A request for provisional arrest
may be transmitted through the diplomatic channel or directly between the Philippine
Department of Justice and the United States Department of Justice.

2. The application for provisional arrest shall contain:

a) a description of the person sought;

b) the location of the person sought, if known;

c) a brief statements of the facts of the case, including, if possible, the time and
location of the offense;

d) a description of the laws violated;

e) a statement of the existence of a warrant of a warrant of arrest or finding of


guilt or judgment of conviction against the person sought; and

f) a statement that a request for extradition for the person sought will follow.

3. The Requesting State shall be notified without delay of the disposition of its
application and the reasons for any denial.

4. A person who is provisionally arrested may be discharged from custody upon the
expiration of sixty (60) days from the date of arrest pursuant to this Treaty if the
executive authority of the Requested State has not received the formal request for
extradition and the supporting documents required in Article 7.

In relation to the above, Section 20 of P.D. No. 1069 provides:


Sec. 20. Provisional Arrest. (a) In case of urgency, the requesting state may, pursuant
to the relevant treaty or convention and while the same remains in force, request for the
provisional arrest of the accused, pending receipt of the request for extradition made in
accordance with Section 4 of this Decree.

(b) A request for provisional arrest shall be sent to the Director of the National Bureau of
Investigation, Manila, either through the diplomatic channels or direct by post or
telegraph.

(c) The Director of the National Bureau of Investigation or any official acting on his
behalf shall upon receipt of the request immediately secure a warrant for the provisional
arrest of the accused from the presiding judge of the Court of First Instance of the
province or city having jurisdiction of the place, who shall issue the warrant for the
provisional arrest of the accused. The Director of the National Bureau of Investigation
through the Secretary of Foreign Affairs shall inform the requesting state of the result of
its request.

(d) If within a period of 20 days after the provisional arrest, the Secretary of Foreign
Affairs has not received the request for extradition and the documents mentioned in
Section 4 of this Decree, the accused shall be released from custody.

The due process protection of the private-respondent against arbitrary arrest is written in
cyrillic letters in these two (2) related provisions. It is self-evident under these provisions that a
request for provisional arrest does not mean it will be granted ipso facto. The request must
comply with certain requirements. It must be based on an "urgent" factor. This is subject to
verification and evaluation by our executive authorities. The request can be denied if not based
on a real exigency of if the supporting documents are insufficient. The protection of the
respondent against arbitrary provisional arrest does not stop on the administrative level. For even
if the Director of the National Bureau of Investigation agrees with the request for the provisional
arrest of the respondent, still he has to apply for a judicial warrant from the "presiding judge of
the Court of First Instance (now RTC) of the province of city having jurisdiction of the place. . . .
." It is a judge who will issue a warrant for the provisional arrest of the respondent. The judge
has comply with Section 2, Article III of the Constitution which provides that "no . . . warrant of
arrest shall issue except upon probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he may produce, and
particularly describing the . . . persons or things to be seized." The message that leaps to the eye
is that compliance with this requirements precludes any arbitrary arrest.

In light of all these considerations, I respectfully submit that denying respondent's constitutional
claim to be furnished all documents relating to the request for his extradition by the US
authorities during their evaluation stage will not subvert his right to fundamental fairness. It
should be stressed that this is not a case where the respondent will not be given an opportunity to
know the basis of the request for his extradition. In truth, and contrary to the impression of the
majority, P.D. No. 1069 fixes the specific time when he will be given the papers constituting the
basis for his extradition. The time is when he is summoned by the extradition court and required
to answer the petition for extradition. Thus, Section 6 of P.D. No. 1069 provides:
Sec. 6. Issuance of Summons; Temporary Arrest; Hearing, Service of Notices. (1)
Immediately upon receipt of the petition, the presiding judge of the court shall, as soon as
practicable, summon the accused to appear and to answer the petition on the day and hour
fixed in the order. He may issue a warrant for the immediate arrest of the accused which
may be served anywhere within the Philippines if it appears to the presiding judge that
the immediate arrest and temporary detention of the accused will best serve the ends of
justice. Upon receipt of the answer within the time fixed, the presiding judge shall hear
the case or set another date for the hearing thereof.

(2) The order and notice as well as a copy of the warrant of arrest, if issued, shall be
promptly served each upon the accused and the attorney having charge of the case.

Upon receipt of the summons and the petition, respondent is free to foist all defense available to
him. Such an opportunity does not deny him fairness which is the essence of due process of law.

Thus, with due respect, I submit that the ponencia failed to accord due importance to the
international law aspect of an extradition treaty as it unduly stressed its constitutional law
dimension. This goes against the familiar learning that in balancing the clashing interests
involved in extradition treaty, national interest is more equal than the others. While lately,
humanitarian considerations are being factored in the equation, still the concept of extradition as
a national act is the guiding idea. Requesting and granting extradition remains a power and
prerogative of the national government of a State. The process still involves relations between
international personalities.25 Needless to state, a more deferential treatment should be given to
national interest than to individual interest. Our national interest in extraditing persons who have
committed crimes in a foreign country are succinctly expressed in the whereas clauses of P.D.
No. 1069, viz:

WHEREAS, the Constitution of the Philippines adopts the generally accepted principles
of international law as part of law of the land, and adheres to the policy of peace,
equality, justice, freedom, cooperation and amity with all nations;

WHEREAS, the suppression of crime is the concern not only of the state where it is
committed but also of any other state to which the criminal may have escaped, because it
saps the foundation of social life and is an outrage upon humanity at large, and it is in the
interest of civilized communities that crimes should not go unpunished. . . . .

The increasing incidence of international and transnational crimes, the development of new
technologies of death, and the speed and scale of improvement of communication are factors
which have virtually annihilated time and distance. They make more compelling the vindication
of national interest to insure that the punishment of criminals should not be frustrated by the
frontiers of territorial sovereignty. This overriding national interest must be upheld as against
respondent's weak constitutional claims which in no way amount to denial of fundamental
fairness.

At bottom, this case involves the respect that courts should accord to the Executive that
concluded the RP-US Extradition Treaty in the conduct of our foreign affairs. As early as 1800,
the legendary John Marshall, then a congressman, has opined that the power to extradite pursuant
to a treaty rests in the executive branch as part of its power to conduct foreign affairs.26 Courts
have validated this forward-looking opinion in a catena of unbroken cases. They defer to the
judgment of the Executive on the necessities of our foreign affairs and on its view of the
requirements of international comity. The deferential attitude is dictated by the robust reality that
of the three great branches of our government, it is the Executive that is most qualified to guide
the ship of the state on the known and unknown continents of foreign relations. It is also
compelled by considerations of the principle of separation of powers for the Constitution has
clearly allocated the power to conduct our foreign affairs to the Executive. I respectfully submit
that the majority decision has weakened the Executive by allowing nothing less than an
unconstitutional headbutt on the power of the Executive to conduct our foreign affairs. The
majority should be cautions in involving this Court in the conduct of the nation's foreign
relations where the inviolable rule dictated by necessity is that the nation should speak with one
voice. We should not overlook the reality that courts by their nature, are ill-equipped to fully
comprehend the foreign policy dimension of a treaty, some of which are hidden in shadows and
silhouettes.

I vote to grant the petition.

PANGANIBAN, J., dissenting opinion;

With due respect, I dissent.

The main issue before us is whether Private Respondent Mark B. Jimenez is entitled to the due
process rights of notice and hearing during the preliminary or evaluation stage of the extradition
proceeding against him.

Two Staged in Extradition

There are essentially two stages in extradition proceedings: (1) the preliminary or evaluation
stage, whereby the executive authority of the requested state ascertains whether the extradition
request is supported by the documents and information required under the Extradition Treaty;
and (2) the extradition hearing, whereby the petition for extradition is heard before a court of
justice, which determines whether the accused should be extradited.

The instant petition refers only to the first stage. Private respondent claims that he has a right to
be notified and to be heard at this early stage. However, even the ponencia admits that neither the
RP-US Extradition Treaty nor PD 1069 (the Philippine Extradition Law) expressly requires the
Philippine government, upon receipt of the request for extradition, to give copies thereof and its
supporting documents to the prospective extraditee, much less to give him an opportunity to be
heard prior to the filing of the petition in court.

Notably, international extradition proceedings in the United States do not include the grant by the
executive authority of notice and hearing to the prospective extraditee at this initial stage. It is
the judge or magistrate who is authorized to issue a warrant of arrest and to hold a hearing to
consider the evidence submitted in support of the extradition request. In contrast, in interstate
rendition, the governor must, upon demand, furnish the fugitive or his attorney copies of the
request and its accompanying documents, pursuant to statutory provisions.1 In the Philippines,
there is no similar statutory provision.

Evaluation Stage Essentially Ministerial

The evaluation stage simply involves the ascertainment by the foreign affairs secretary of
whether the extradition request is accompanied by the documents stated in paragraphs 2 and 3,
Article 7 of the Treaty, relating to the identity and the probable location of the fugitive; the facts
of the offense and the procedural history of the case; provisions of the law describing the
essential elements of the offense charged and the punishment therefor; its prescriptive period;
such evidence as would provide probable cause for the arrest and the committal for trial of the
fugitive; and copies of the warrant or order of arrest and charging document. The foreign affairs
secretary also sees to it that these accompanying documents have been certified by the principal
diplomatic or consular officer of the Philippines in the United States, and that they are in English
language or have English translations. Pursuant to Article 3 of the Treaty, he also determines
whether the request is politically motivated, and whether the offense charged is a military offense
not punishable under non-military penal legislation.2

Upon a finding of the secretary of foreign affairs that the extradition request and its supporting
documents are sufficient and complete in form and substance, he shall deliver the same to the
justice secretary, who shall immediately designate and authorize an attorney in his office to take
charge of the case. The lawyer designated shall then file a written petition with the proper
regional trial court, with a prayer that the court take the extradition request under consideration.3

When the Right to Notice and Hearing Becomes Available

According to private Respondent Jimenez, his right to due process during the preliminary stage
emanates from our Constitution, particularly Section 1, Article III thereof, which provides:

No person shall be deprived of life, liberty or property without due process of law.

He claims that this right arises immediately, because of the possibility that he may be
provisionally arrested pursuant to Article 9 of the RP-US Treaty, which reads:

In case of urgency, a Contracting Party may request the provisional arrest of the person
sought pending presentation of the request for extradition. A request for provisional arrest
may be transmitted through the diplomatic channel or directly between the Philippine
Department of Justice and the United States Department of Justice.

xxx xxx xxx

Justice Melo's ponencia supports private respondent's contention. It states that there are two
occasions wherein the prospective extraditee may be deprived of liberty: (1) in case of a
provisional arrest pending the submission of the extradition request and (2) his temporary arrest
during the pendency of the extradition petition in court.4 The second instance is not in issue here,
because no petition has yet been filed in court.

However, the above-quoted Article 9 on provisional arrest is not automatically operative at all
times, and in enforcement does not depend solely on the discretion of the requested state. From
the wordings of the provision itself, there are at least three requisites: (1) there must be an
urgency, and (2) there is a corresponding request (3) which must be made prior to the
presentation of the request for extradition.

In the instant case, there appears to be no urgency characterizing the nature of the extradition of
private respondent. Petitioner does not claim any such urgency. There is no request from the
United States for the provisional arrest of Mark Jimenez either. And the secretary of justice states
during the Oral Argument that he had no intention of applying for the provisional arrest of
private respondent.5 Finally, the formal request for extradition has already been made; therefore,
provisional arrest is not likely, as it should really come before the extradition request.6

Mark Jimenez Not in Jeopardy of Arrest

Under the outlined facts of this case, there is no open door for the application of Article 9,
contrary to the apprehension of private respondent. In other words, there is no actual danger that
Jimenez will be provisionally arrested or deprived of his liberty. There is as yet no threat that his
rights would be trampled upon, pending the filing in court of the petition for his extradition.
Hence, there is no substantial gain to be achieved in requiring the foreign affairs (or justice)
secretary to notify and hear him during the preliminary stage, which basically involves only the
exercise of the ministerial power of checking the sufficiency of the documents attached to the
extradition request.

It must be borne in mind that during the preliminary stage, the foreign affairs secretary's
determination of whether the offense charged is extraditable or politically motivated is merely
preliminary. The same issue will be resolved by the trial court.7 Moreover, it is also the power
and the duty of the court, not the executive authority, to determine whether there is sufficient
evidence to establish probable cause that the extraditee committed the crimes charged.8 The
sufficiency of the evidence of criminality is to be determined based on the laws of the requested
state.9 Private Respondent Jimenez will, therefore, definitely have his full opportunity before the
court, in case an extradition petition will indeed be filed, to be heard on all issues including the
sufficiency of the documents supporting the extradition request.10

Private respondent insists that the United States may still request his provisional arrest at any
time. That is purely speculative. It is elementary that this Court does not declare judgments or
grant reliefs based on speculations, surmises or conjectures.

In any event, even granting that the arrest of Jimenez is sought at any time despite the assurance
of the justice secretary that no such measure will be undertaken, our local laws and rules of
procedure respecting the issuance of a warrant of arrest will govern, there being no specific
provision under the Extradition Treaty by which such warrant should issue. Therefore, Jimenez
will be entitled to all the rights accorded by the Constitution and the laws to any person whose
arrest is being sought.1wphi1.nt

The right of one state to demand from another the return of an alleged fugitive from justice and
the correlative duty to surrender the fugitive to the demanding country exist only when created
by a treaty between the two countries. International law does not require the voluntary surrender
of a fugitive to a foreign government, absent any treaty stipulation requiring it.11 When such a
treaty does exist, as between the Philippines and the United States, it must be presumed that the
contracting states perform their obligations under it with uberrimae fidei, treaty obligations being
essentially characterized internationally by comity and mutual respect.

The Need for Respondent Jimenez to Face Charges in the US

One final point. Private respondent also claims that from the time the secretary of foreign affairs
gave due course to the request for his extradition, incalculable prejudice has been brought upon
him. And because of the moral injury caused, he should be given the opportunity at the earliest
possible time to stop his extradition. I believe that any moral injury suffered by private
respondent had not been caused by the mere processing of the extradition request. And it will not
cease merely by granting him the opportunity to be heard by the executive authority. The
concrete charges that he has allegedly committed certain offenses already exist. These charges
have been filed in the United States and are part of public and official records there. Assuming
the existence of moral injury, the only means by which he can restore his good reputation is to
prove before the proper judicial authorities in the US that the charges against him are unfounded.
Such restoration cannot be accomplished by simply contending that the documents supporting
the request for his extradition are insufficient.

Conclusion

In the context of the factual milieu of private respondent, there is really no threat of any
deprivation of his liberty at the present stage of the extradition process. Hence, the constitutional
right to due process particularly the right to be heard finds no application. To grant private
respondent's request for copies of the extradition documents and for an opportunity to comment
thereon will constitute "over-due process" and unnecessarily delay the proceedings.

WHEREFORE, I vote to grant the Petition.

G.R. No. L-21897 October 22, 1963

RAMON A. GONZALES, petitioner,


vs.
RUFINO G. HECHANOVA, as Executive Secretary, MACARIO PERALTA, JR., as
Secretary of Defense, PEDRO GIMENEZ, as Auditor General, CORNELIO
BALMACEDA, as Secretary of Commerce and Industry, and SALVADOR MARINO,
Secretary of Justice, respondents.
Ramon A. Gonzales in his own behalf as petitioner.
Office of the Solicitor General and Estanislao Fernandez for respondents.

CONCEPCION, J.:

This is an original action for prohibition with preliminary injunction.

It is not disputed that on September 22, 1963, respondent Executive Secretary authorized the
importation of 67,000 tons of foreign rice to be purchased from private sources, and created a
rice procurement committee composed of the other respondents herein1 for the implementation
of said proposed importation. Thereupon, or September 25, 1963, herein petitioner, Ramon A.
Gonzales a rice planter, and president of the Iloilo Palay and Corn Planters Association,
whose members are, likewise, engaged in the production of rice and corn filed the petition
herein, averring that, in making or attempting to make said importation of foreign rice, the
aforementioned respondents "are acting without jurisdiction or in excess of jurisdiction", because
Republic Act No. 3452 which allegedly repeals or amends Republic Act No. 220 explicitly
prohibits the importation of rice and corn "the Rice and Corn Administration or any other
government agency;" that petitioner has no other plain, speedy and adequate remedy in the
ordinary course of law; and that a preliminary injunction is necessary for the preservation of the
rights of the parties during the pendency this case and to prevent the judgment therein from
coming ineffectual. Petitioner prayed, therefore, that said petition be given due course; that a writ
of preliminary injunction be forthwith issued restraining respondent their agents or
representatives from implementing the decision of the Executive Secretary to import the
aforementioned foreign rice; and that, after due hearing, judgment be rendered making said
injunction permanent.

Forthwith, respondents were required to file their answer to the petition which they did, and
petitioner's pray for a writ of preliminary injunction was set for hearing at which both parties
appeared and argued orally. Moreover, a memorandum was filed, shortly thereafter, by the
respondents. Considering, later on, that the resolution said incident may require some
pronouncements that would be more appropriate in a decision on the merits of the case, the same
was set for hearing on the merits thereafter. The parties, however, waived the right to argue
orally, although counsel for respondents filed their memoranda.

I. Sufficiency of petitioner's interest.

Respondents maintain that the status of petitioner as a rice planter does not give him sufficient
interest to file the petition herein and secure the relief therein prayed for. We find no merit in this
pretense. Apart from prohibiting the importation of rice and corn "by the Rice and Corn
Administration or any other government agency". Republic Act No. 3452 declares, in Section 1
thereof, that "the policy of the Government" is to "engage in the purchase of these basic foods
directly from those tenants, farmers, growers, producers and landowners in the Philippines who
wish to dispose of their products at a price that will afford them a fair and just return for their
labor and capital investment. ... ." Pursuant to this provision, petitioner, as a planter with a rice
land of substantial proportion,2 is entitled to a chance to sell to the Government the rice it now
seeks to buy abroad. Moreover, since the purchase of said commodity will have to be effected
with public funds mainly raised by taxation, and as a rice producer and landowner petitioner
must necessarily be a taxpayer, it follows that he has sufficient personality and interest to seek
judicial assistance with a view to restraining what he believes to be an attempt to unlawfully
disburse said funds.

II. Exhaustion of administrative remedies.

Respondents assail petitioner's right to the reliefs prayed for because he "has not exhausted all
administrative remedies available to him before coming to court". We have already held,
however, that the principle requiring the previous exhaustion of administrative remedies is not
applicable where the question in dispute is purely a legal one",3 or where the controverted act is
"patently illegal" or was performed without jurisdiction or in excess of jurisdiction,4 or where the
respondent is a department secretary, whose acts as an alter-ego of the President bear the implied
or assumed approval of the latter,5 unless actually disapproved by him,6 or where there are
circumstances indicating the urgency of judicial intervention.7 The case at bar fails under each
one of the foregoing exceptions to the general rule. Respondents' contention is, therefore,
untenable.

III. Merits of petitioner's cause of action.

Respondents question the sufficiency of petitioner's cause of action upon the theory that the
proposed importation in question is not governed by Republic Acts Nos. 2207 and 3452, but was
authorized by the President as Commander-in-Chief "for military stock pile purposes" in the
exercise of his alleged authority under Section 2 of Commonwealth Act No. 1;8 that in cases of
necessity, the President "or his subordinates may take such preventive measure for the restoration
of good order and maintenance of peace"; and that, as Commander-in-Chief of our armed forces,
"the President ... is duty-bound to prepare for the challenge of threats of war or emergency
without waiting for any special authority".

Regardless of whether Republic Act No. 3452 repeals Republic Act No. 2207, as contended by
petitioner herein - on which our view need not be expressed we are unanimously of the
opinion - assuming that said Republic Act No. 2207 is still in force that the two Acts are
applicable to the proposed importation in question because the language of said laws is such as to
include within the purview thereof all importations of rice and corn into the Philippines".
Pursuant to Republic Act No. 2207, "it shall be unlawful for any person, association, corporation
or government agency to import rice and corn into any point in the Philippines", although, by
way of exception, it adds, that "the President of the Philippines may authorize the importation of
these commodities through any government agency that he may designate", is the conditions
prescribed in Section 2 of said Act are present. Similarly, Republic Act No. 3452 explicitly
enjoins "the Rice and Corn Administration or any government agency" from importing rice and
corn.

Respondents allege, however, that said provisions of Republic Act Nos. 2207 and 3452,
prohibiting the importation of rice and corn by any "government agency", do not apply to
importations "made by the Government itself", because the latter is not a "government agency".
This theory is devoid of merit. The Department of National Defense and the Armed Forces of the
Philippines, as well as respondents herein, and each and every officer and employee of our
Government, our government agencies and/or agents. The applicability of said laws even to
importations by the Government as such, becomes more apparent when we consider that:

1. The importation permitted in Republic Act No. 2207 is to be authorized by the "President of
the Philippines" and, hence, by or on behalf of the Government of the Philippines;

2. Immediately after enjoining the Rice and Corn administration and any other government
agency from importing rice and corn, Section 10 of Republic Act No. 3452 adds "that the
importation of rice and corn is left to private parties upon payment of the corresponding taxes",
thus indicating that only "private parties" may import rice under its provisions; and

3. Aside from prescribing a fine not exceeding P10,000.00 and imprisonment of not more than
five (5) years for those who shall violate any provision of Republic Act No. 3452 or any rule and
regulation promulgated pursuant thereto, Section 15 of said Act provides that "if the offender is a
public official and/or employees", he shall be subject to the additional penalty specified therein.
A public official is an officer of the Government itself, as distinguished from officers or
employees of instrumentalities of the Government. Hence, the duly authorized acts of the former
are those of the Government, unlike those of a government instrumentality which may have a
personality of its own, distinct and separate from that of the Government, as such. The provisions
of Republic Act No. 2207 are, in this respect, even more explicit. Section 3 thereof provides a
similar additional penalty for any "officer or employee of the Government" who "violates, abets
or tolerates the violation of any provision" of said Act. Hence, the intent to apply the same to
transactions made by the very government is patent.

Indeed, the restrictions imposed in said Republic Acts are merely additional to those prescribed
in Commonwealth Act No. 138, entitled "An Act to give native products and domestic entities
the preference in the purchase of articles for the Government." Pursuant to Section 1 thereof:

The Purchase and Equipment Division of the Government of the Philippines and other
officers and employees of the municipal and provincial governments and the Government
of the Philippines and of chartered cities, boards, commissions, bureaus, departments,
offices, agencies, branches, and bodies of any description, including government-owned
companies, authorized to requisition, purchase, or contract or make disbursements for
articles, materials, and supplies for public use, public buildings, or public works shall
give preference to materials ... produced ... in the Philippines or in the United States, and
to domestic entities, subject to the conditions hereinbelow specified. (Emphasis supplied.)

Under this provision, in all purchases by the Government, including those made by and/or for the
armed forces, preference shall be given to materials produced in the Philippines. The importation
involved in the case at bar violates this general policy of our Government, aside from the
provisions of Republic Acts Nos. 2207 and 3452.

The attempt to justify the proposed importation by invoking reasons of national security
predicated upon the "worsening situation in Laos and Vietnam", and "the recent tension created
by the Malaysia problem" - and the alleged powers of the President as Commander-in-Chief of
all armed forces in the Philippines, under Section 2 of the National Defense Act (Commonwealth
Act No. 1), overlooks the fact that the protection of local planters of rice and corn in a manner
that would foster and accelerate self-sufficiency in the local production of said commodities
constitutes a factor that is vital to our ability to meet possible national emergency. Even if the
intent in importing goods in anticipation of such emergency were to bolster up that ability, the
latter would, instead, be impaired if the importation were so made as to discourage our farmers
from engaging in the production of rice.

Besides, the stockpiling of rice and corn for purpose of national security and/or national
emergency is within the purview of Republic Act No. 3452. Section 3 thereof expressly
authorizes the Rice and Corn Administration "to accumulate stocks as a national reserve in such
quantities as it may deem proper and necessary to meet any contingencies". Moreover, it ordains
that "the buffer stocks held as a national reserve ... be deposited by the administration
throughout the country under the proper dispersal plans ... and may be released only upon the
occurrence of calamities or emergencies ...". (Emphasis applied.)

Again, the provisions of Section 2 of Commonwealth Act No. 1, upon which respondents rely so
much, are not self-executory. They merely outline the general objectives of said legislation. The
means for the attainment of those objectives are subject to congressional legislation. Thus, the
conditions under which the services of citizens, as indicated in said Section 2, may be availed of,
are provided for in Sections 3, 4 and 51 to 88 of said Commonwealth Act No. 1. Similarly,
Section 5 thereof specifies the manner in which resources necessary for our national defense may
be secured by the Government of the Philippines, but only "during a national mobilization",9
which does not exist. Inferentially, therefore, in the absence of a national mobilization, said
resources shall be produced in such manner as Congress may by other laws provide from time to
time. Insofar as rice and corn are concerned, Republic Acts Nos. 2207 and 3452, and
Commonwealth Act No. 138 are such laws.

Respondents cite Corwin in support of their pretense, but in vain. An examination of the work
cited10 shows that Corwin referred to the powers of the President during "war time"11 or when he
has placed the country or a part thereof under "martial law".12 Since neither condition obtains in
the case at bar, said work merely proves that respondents' theory, if accepted, would, in effect,
place the Philippines under martial law, without a declaration of the Executive to that effect.
What is worse, it would keep us perpetually under martial law.

It has been suggested that even if the proposed importation violated Republic Acts Nos. 2207 and
3452, it should, nevertheless, be permitted because "it redounds to the benefit of the people".
Salus populi est suprema lex, it is said.

If there were a local shortage of rice, the argument might have some value. But the respondents,
as officials of this Government, have expressly affirmed again and again that there is no rice
shortage. And the importation is avowedly for stockpile of the Army not the civilian
population.

But let us follow the respondents' trend of thought. It has a more serious implication that appears
on the surface. It implies that if an executive officer believes that compliance with a certain
statute will not benefit the people, he is at liberty to disregard it. That idea must be rejected - we
still live under a rule of law.

And then, "the people" are either producers or consumers. Now as respondents explicitly
admit Republic Acts Nos. 2207 and 3452 were approved by the Legislature for the benefit of
producers and consumers, i.e., the people, it must follow that the welfare of the people lies
precisely in the compliance with said Acts.

It is not for respondent executive officers now to set their own opinions against that of the
Legislature, and adopt means or ways to set those Acts at naught. Anyway, those laws permit
importation but under certain conditions, which have not been, and should be complied with.

IV. The contracts with Vietnam and Burma

It is lastly contended that the Government of the Philippines has already entered into two (2)
contracts for the Purchase of rice, one with the Republic of Vietnam, and another with the
Government of Burma; that these contracts constitute valid executive agreements under
international law; that such agreements became binding effective upon the signing thereof by
representatives the parties thereto; that in case of conflict between Republic Acts Nos. 2207 and
3452 on the one hand, and aforementioned contracts, on the other, the latter should prevail,
because, if a treaty and a statute are inconsistent with each other, the conflict must be resolved
under the American jurisprudence in favor of the one which is latest in point of time; that
petitioner herein assails the validity of acts of the Executive relative to foreign relations in the
conduct of which the Supreme Court cannot interfere; and the aforementioned contracts have
already been consummated, the Government of the Philippines having already paid the price of
the rice involved therein through irrevocable letters of credit in favor of the sell of the said
commodity. We find no merit in this pretense.

The Court is not satisfied that the status of said tracts as alleged executive agreements has been
sufficiently established. The parties to said contracts do not pear to have regarded the same as
executive agreements. But, even assuming that said contracts may properly considered as
executive agreements, the same are unlawful, as well as null and void, from a constitutional
viewpoint, said agreements being inconsistent with the provisions of Republic Acts Nos. 2207
and 3452. Although the President may, under the American constitutional system enter into
executive agreements without previous legislative authority, he may not, by executive agreement,
enter into a transaction which is prohibited by statutes enacted prior thereto. Under the
Constitution, the main function of the Executive is to enforce laws enacted by Congress. The
former may not interfere in the performance of the legislative powers of the latter, except in the
exercise of his veto power. He may not defeat legislative enactments that have acquired the status
of law, by indirectly repealing the same through an executive agreement providing for the
performance of the very act prohibited by said laws.

The American theory to the effect that, in the event of conflict between a treaty and a statute, the
one which is latest in point of time shall prevail, is not applicable to the case at bar, for
respondents not only admit, but, also insist that the contracts adverted to are not treaties. Said
theory may be justified upon the ground that treaties to which the United States is signatory
require the advice and consent of its Senate, and, hence, of a branch of the legislative
department. No such justification can be given as regards executive agreements not authorized
by previous legislation, without completely upsetting the principle of separation of powers and
the system of checks and balances which are fundamental in our constitutional set up and that of
the United States.

As regards the question whether an international agreement may be invalidated by our courts,
suffice it to say that the Constitution of the Philippines has clearly settled it in the affirmative, by
providing, in Section 2 of Article VIII thereof, that the Supreme Court may not be deprived "of
its jurisdiction to review, revise, reverse, modify, or 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 regulation is in question". In other words, our Constitution authorizes the nullification of
a treaty, not only when it conflicts with the fundamental law, but, also, when it runs counter to
an act of Congress.

The alleged consummation of the aforementioned contracts with Vietnam and Burma does not
render this case academic, Republic Act No. 2207 enjoins our Government not from entering
into contracts for the purchase of rice, but from importing rice, except under the conditions
Prescribed in said Act. Upon the other hand, Republic Act No. 3452 has two (2) main features,
namely: (a) it requires the Government to purchase rice and corn directly from our local planters,
growers or landowners; and (b) it prohibits importations of rice by the Government, and leaves
such importations to private parties. The pivotal issue in this case is whether the proposed
importation which has not been consummated as yet is legally feasible.

Lastly, a judicial declaration of illegality of the proposed importation would not compel our
Government to default in the performance of such obligations as it may have contracted with the
sellers of the rice in question, because, aside from the fact that said obligations may be complied
with without importing the commodity into the Philippines, the proposed importation may still be
legalized by complying with the provisions of the aforementioned laws.

V. The writ of preliminary injunction.

The members of the Court have divergent opinions on the question whether or not respondents
herein should be enjoined from implementing the aforementioned proposed importation.
However, the majority favors the negative view, for which reason the injunction prayed for
cannot be granted.

WHEREFORE, judgment is hereby rendered declaring that respondent Executive Secretary had
and has no power to authorize the importation in question; that he exceeded his jurisdiction in
granting said authority; said importation is not sanctioned by law and is contrary to its
provisions; and that, for lack of the requisite majority, the injunction prayed for must be and is,
accordingly denied. It is so ordered.

Bengzon, CJ, Padilla, Labrador, Reyes, J.B.L., Dizon and Makalintal, JJ., concur.
Paredes and Regala, JJ., concur in the result.
Separate Opinions

BAUTISTA ANGELO, J., concurring:

Under Republic Act No. 2207, which took effect on May 15, 1959, it is unlawful for any person,
association, corporation or government agency to import rice and corn into any point in the
Philippines. The exception is if there is an existing or imminent shortage of such commodity of
much gravity as to constitute national emergency in which case an importation may be
authorized by the President when so certified by the National Economic Council.

However, on June 14, 1962, Republic Act 3452 was enacted providing that the importation of
rice and corn can only be made by private parties thereby prohibiting from doing so the Rice and
Corn Administration or any other government agency. Republic Act 3452 does not expressly
repeal Republic Act 2207, but only repeals or modified those parts thereof that are inconsistent
with its provisions. The question that now arises is: Has the enactment of Republic Act 3452 the
effect of prohibiting completely the government from importing rice and corn into the
Philippines?

My answer is in the negative. Since this Act does not in any manner provide for the importation
of rice and corn in case of national emergency, the provision of the former law on that matter
should stand, for that is not inconsistent with any provision embodied in Republic Act 3452. The
Rice and Corn Administration, or any other government agency, may therefore still import rice
and corn into the Philippines as provided in Republic Act 2207 if there is a declared national
emergency.

The next question that arises is: Can the government authorize the importation of rice and corn
regardless of Republic Act 2207 if that is authorized by the President as Commander-in-Chief of
the Philippine Army as a military precautionary measure for military stockpile?

Respondents answer this question in the affirmative. They advance the argument that it is the
President's duty to see to it that the Armed Forces of the Philippines are geared to the defenses of
the country as well as to the fulfillment of our international commitments in Southeast Asia in
the event the peace and security of the area are in danger. The stockpiling of rice, they aver, is an
essential requirement of defense preparation in view of the limited local supply and the probable
disruption of trade and commerce with outside countries in the event of armed hostilities, and
this military precautionary measure is necessary because of the unsettled conditions in the
Southeast Asia bordering on actual threats of armed conflicts as evaluated by the Intelligence
Service of the Military Department of our Government. This advocacy, they contend, finds
support in the national defense policy embodied in Section 2 of our National Defense Act
(Commonwealth Act No. 1), which provides:

(a) The preservation of the State is the obligation of every citizen. The security of the
Philippines and the freedom, independence and perpetual neutrality of the Philippine
Republic shall be guaranteed by the employment of all citizens, without distinction of sex
or age, and all resources.

(b) The employment of the nation's citizens and resources for national defense shall be
effected by a national mobilization.

(c) The national mobilization shall include the execution of all measures necessary to
pass from a peace to a war footing.

(d) The civil authority shall always be supreme. The President of the Philippines as the
Commander-in-Chief of all military forces, shall be responsible that mobilization
measures are prepared at all times.(Emphasis supplied)

Indeed, I find in that declaration of policy that the security of the Philippines and its freedom
constitutes the core of the preservation of our State which is the basic duty of every citizen and
that to secure which it is enjoined that the President employ all the resources at his command.
But over and above all that power and duty, fundamental as they may seem, there is the
injunction that the civil authority shall always be supreme. This injunction can only mean that
while all precautions should be taken to insure the security and preservation of the State and to
this effect the employment of all resources may be resorted to, the action must always be taken
within the framework of the civil authority. Military authority should be harmonized and
coordinated with civil authority, the only exception being when the law clearly ordains
otherwise. Neither Republic Act 2207, nor Republic Act 3452, contains any exception in favor of
military action concerning importation of rice and corn. An exception must be strictly construed.

A distinction is made between the government and government agency in an attempt to take the
former out of the operation of Republic Act 2207. I disagree. The Government of the Republic of
the Philippines under the Revised Administrative Code refers to that entity through which the
functions of government are exercised, including the various arms through which political
authority is made effective whether they be provincial, municipal or other form of local
government, whereas a government instrumentality refers to corporations owned or controlled by
the government to promote certain aspects of the economic life of our people. A government
agency, therefore, must necessarily refer to the government itself of the Republic, as
distinguished from any government instrumentality which has a personality distinct and separate
from it (Section 2).

The important point to determine, however, is whether we should enjoin respondents from
carrying out the importation of the rice which according to the record has been authorized to be
imported on government to government level, it appearing that the arrangement to this effect has
already been concluded, the only thing lacking being its implementation. This is evident from the
manifestation submitted by the Solicitor General wherein it appears that the contract for the
purchase of 47,000 tons of rice from had been sign on October 5, 1963, and for the purchase of
20,000 tons from Burma on October 8, 1963, by the authorized representatives of both our
government and the governments of Vietnam and Burma, respectively. If it is true that, our
government has already made a formal commitment with the selling countries there arises the
question as to whether the act can still be impeded at this stage of the negotiations. Though on
this score there is a divergence of opinion, it is gratifying to note that the majority has expressed
itself against it. This is a plausible attitude for, had the writ been issued, our government would
have been placed in a predicament where, as a necessary consequence, it would have to repudiate
a duly formalized agreement to its great embarrassment and loss of face. This was avoided by the
judicial statesmanship evinced by the Court.

BARRERA, J., concurring:

Because of possible complications that might be aggravated by misrepresentation of the true


nature and scope of the case before this Court, it is well to restate as clearly as possible, the real
and only issue presented by the respondents representing the government.

From the answer filed by the Solicitor General, in behalf of respondents, we quote:

The importation of the rice in question by the Armed Forces of the Philippines is for
military stockpiling authorized by the President pursuant to his inherent power as
commander-in-chief and as a military precautionary measure in view the worsening
situation in Laos and Vietnam and, it may added, the recent, tension created by the
Malaysia problem (Answer, p. 2; emphasis supplied.)

During the oral argument, Senator Fernandez, appealing in behalf of the respondents, likewise
reiterated the imported rice was for military stockpiling, and which he admitted that some of it
went to the Rice and Corn Administration, he emphasized again and again that rice was not
intended for the RCA for distribution to people, as there was no shortage of rice for that purpose
but it was only exchanged for palay because this could better preserved.

From the memorandum filed thereafter by the Solicits General, again the claim was made:

We respectfully reiterate the arguments in our answer dated October 4, 1963 that the
importation of rice sought be enjoined in this petition is in the exercise of the authority
vested in the President of the Philippines as Commander-in-Chief of the Armed Forces,
as a measure of military preparedness demanded by a real and actual threat of
emergency in the South East Asian countries. (p. 1, Emphasis supplied.)

xxx xxx xxx

It (the stressing of the unsettled conditions in Southeast Asia) is merely our intention to
show the necessity for the stockpiling of rice for army purposes, which is the very reason
for the importation.

xxx xxx xxx


As it is, the importation in question is being made by the Republic of the Philippines for
its own use, and the rice is not supposed to be poured into the open market as to affect
the price to be paid by the public. (p. 4, Emphasis supplied.)

xxx xxx xxx

What we do contend is that the law, for want of express and clear provision to that effect,
does not include in its prohibition importation by the Government of rice for its own use
and not for the consuming public, regardless of whether there is or there is no emergency.
(p. 5, Emphasis supplied.)

From the above, it not only appears but is evident that the respondents were not concerned with
the present rice situation confronting the consuming public, but were solely and exclusively after
the stockpiling of rice for the future use of the army. The issue, therefore, in which the
Government was interested is not whether rice is imported to give the people a bigger or greater
supply to maintain the price at P.80 per ganta for, to quote again their contention: "the rice is
not supposed to be poured into the open market to affect the price to be paid by the public, as it is
not for the consuming public, regardless of whether there is or there is no emergency", but
whether rice can legally be imported by the Armed Forces of the Philippines avowedly for its
future use, notwithstanding the prohibitory provisions of Republic Acts Nos. 2207 and 3452. The
majority opinion ably sets forth the reasons why this Court can not accept the contention of the
respondents that this importation is beyond and outside the operation of these statutes. I can only
emphasize that I see in the theory advanced by the Solicitor General a dangerous trend that
because the policies enunciated in the cited laws are for the protection of the producers and the
consumers, the army is removed from their application. To adopt this theory is to proclaim the
existence in the Philippines of three economic groups or classes: the producers, the consumers,
and the Armed Forces of the Philippines. What is more portentous is the effect to equate the
army with the Government itself.

Then again, the importation of this rice for military stockpiling is sought to be justified by the
alleged threat of emergency in the Southeast Asian countries. But the existence of this supposed
threat was unilaterally determined by the Department of National Defense alone. We recall that
there exists a body called the National Security Council in which are represented the Executive
as well as the Legislative department. In it sit not only members of the party in power but of the
opposition as well. To our knowledge, this is the highest consultative body which deliberates
precisely in times of emergency threatening to affect the security of the state. The democratic
composition of this council is to guarantee that its deliberations would be non-partisan and only
the best interests of the nation will be considered. Being a deliberative body, it insures against
precipitate action. This is as it should be. Otherwise, in these days of ever present cold war, any
change or development in the political climate in any region of the world is apt to be taken as an
excuse for the military to conjure up a crisis or emergency and thereupon attempt to override our
laws and legal processes, and imperceptibly institute some kind of martial law on the pretext of
precautionary mobilization measure avowedly in the interest of the security of the state. One
need not, be too imaginative to perceive a hint of this in the present case.
The Supreme Court, in arriving at the conclusion unanimously reached, is fully aware of the
difficult and delicate task it had to discharge. Its position is liable to be exploited by some for
their own purposes by claiming and making it appear that the Court is unmindful of the plight of
our people during these days of hardship; that it preferred to give substance to the "niceties of the
law than heed the needs of the people. Our answer is that the Court was left no alternative. It had,
in compliance with its duty, to decide the case upon the facts presented to it. The respondents,
representing the administration, steadfastly maintained and insisted that there is no rice shortage;
that the imported rice is not for the consuming public and is not supposed to be placed in the
open market to affect the price to be paid by the public; that it is solely for stockpiling of the
army for future use as a measure of mobilization in the face of what the Department of National
Defense unilaterally deemed a threatened armed conflict in Southeast Asia. Confronted with
these facts upon, which the Government has built and rested its case, we have searched in vain
for legal authority or cogent reasons to justify this importation made admittedly contrary to the
provisions of Republic Acts Nos. 2207 and 3452. I say admittedly, because respondents never as
much as pretended that the importation fulfills the conditions specified in these laws, but limited
themselves to the contention, which is their sole defense that this importation does not fall within
the scope of said laws. In our view, however, the laws are clear. The laws are comprehensive and
their application does not admit of any exception. The laws are adequate. Compliance therewith
is not difficult, much less impossible. The avowed emergency, if at all, is not urgently immediate.

In this connection, it is pertinent to bear in mind that the Supreme Court has a duty to perform
under the Constitution. It has to decide, when called upon to do so in an appropriate proceeding,
all cases in which the constitutionality or validity of any treaty, law, ordinance, executive order
or regulation is in question. We can not elude this duty. To do so would be culpable dereliction
on our part. While we sympathize with the public that might be adversely affected as a result of
this decision yet our sympathy does not authorize us to sanction an act contrary to applicable
laws. The fault lies with those who stubbornly contended and represented before this Court that
there is no rice shortage, that the imported rice is not intended for the consuming public, but for
stockpiling of the army. And, if as now claimed before the public, contrary to the Government's
stand in this case, that there is need for imported rice to stave off hunger, our legislature has
provided for such a situation. As already stated, the laws are adequate. The importation of rice
under the conditions set forth in the laws may be authorized not only where there is an existing
shortage, but also when the shortage is imminent. In other words, lawful remedy to solve the
situation is available, if only those who have the duty to execute the laws perform their duty. If
there is really need for the importation of rice, who adopt some dubious means which
necessitates resort to doubtful exercise of the power of the President as Commander-in-Chief of
the Army? Why not comply with the mandate of the law? Ours is supposed to be a regime under
the rule of law. Adoption as a government policy of the theory of the end justifies the means
brushing aside constitutional and legal restraints, must be rejected, lest we end up with the end of
freedom.

For these reasons, I concur in the decision of the Court.

G.R. No. 175888 February 11, 2009


SUZETTE NICOLAS y SOMBILON, Petitioner,
vs.
ALBERTO ROMULO, in his capacity as Secretary of Foreign Affairs; RAUL
GONZALEZ, in his capacity as Secretary of Justice; EDUARDO ERMITA, in his capacity
as Executive Secretary; RONALDO PUNO, in his capacity as Secretary of the Interior and
Local Government; SERGIO APOSTOL, in his capacity as Presidential Legal Counsel;
and L/CPL. DANIEL SMITH, Respondents.

x - - - - - - - - - - - - - - - - - - - - - - -x

G.R. No. 176051 February 11, 2009

JOVITO R. SALONGA, WIGBERTO E. TAADA, JOSE DE LA RAMA, EMILIO C.


CAPULONG, H. HARRY L. ROQUE, JR., FLORIN HILBAY, and BENJAMIN POZON,
Petitioners,
vs.
DANIEL SMITH, SECRETARY RAUL GONZALEZ, PRESIDENTIAL LEGAL
COUNSEL SERGIO APOSTOL, SECRETARY RONALDO PUNO, SECRETARY
ALBERTO ROMULO, The Special 16th Division of the COURT OF APPEALS, and all
persons acting in their capacity, Respondents.

x - - - - - - - - - - - - - - - - - - - - - - -x

G.R. No. 176222 February 11, 2009

BAGONG ALYANSANG MAKABAYAN (BAYAN), represented by Dr. Carol Araullo;


GABRIELA, represented by Emerenciana de Jesus; BAYAN MUNA, represented by Rep.
Satur Ocampo; GABRIELA WOMEN'S PARTY, represented by Rep. Liza Maza;
KILUSANG MAYO UNO (KMU), represented by Elmer Labog; KILUSANG
MAGBUBUKID NG PILIPINAS (KMP), represented by Willy Marbella; LEAGUE OF
FILIPINO STUDENTS (LFS), represented by Vencer Crisostomo; and THE PUBLIC
INTEREST LAW CENTER, represented by Atty. Rachel Pastores, Petitioners,
vs.
PRESIDENT GLORIA MACAPAGAL-ARROYO, in her capacity as concurrent Defense
Secretary, EXECUTIVE SECRETARY EDUARDO ERMITA, FOREIGN AFFAIRS
SECRETARY ALBERTO ROMULO, JUSTICE SECRETARY RAUL GONZALEZ, AND
INTERIOR AND LOCAL GOVERNMENT SECRETARY RONALDO PUNO,
Respondents.

DECISION

AZCUNA, J.:

These are petitions for certiorari, etc. as special civil actions and/or for review of the Decision of
the Court of Appeals in Lance Corporal Daniel J. Smith v. Hon. Benjamin T. Pozon, et al., in
CA-G.R. SP No. 97212, dated January 2, 2007.
The facts are not disputed.

Respondent Lance Corporal (L/CPL) Daniel Smith is a member of the United States Armed
Forces. He was charged with the crime of rape committed against a Filipina, petitioner herein,
sometime on November 1, 2005, as follows:

The undersigned accused LCpl. Daniel Smith, Ssgt. Chad Brian Carpentier, Dominic Duplantis,
Keith Silkwood and Timoteo L. Soriano, Jr. of the crime of Rape under Article 266-A of the
Revised Penal Code, as amended by Republic Act 8353, upon a complaint under oath filed by
Suzette S. Nicolas, which is attached hereto and made an integral part hereof as Annex "A,"
committed as follows:

"That on or about the First (1st) day of November 2005, inside the Subic Bay Freeport Zone,
Olongapo City and within the jurisdiction of this Honorable Court, the above-named accuseds
(sic), being then members of the United States Marine Corps, except Timoteo L. Soriano, Jr.,
conspiring, confederating together and mutually helping one another, with lewd design and by
means of force, threat and intimidation, with abuse of superior strength and taking advantage of
the intoxication of the victim, did then and there willfully, unlawfully and feloniously sexually
abuse and have sexual intercourse with or carnal knowledge of one Suzette S. Nicolas, a 22-year
old unmarried woman inside a Starex Van with Plate No. WKF-162, owned by Starways Travel
and Tours, with Office address at 8900 P. Victor St., Guadalupe, Makati City, and driven by
accused Timoteo L. Soriano, Jr., against the will and consent of the said Suzette S. Nicolas, to
her damage and prejudice.

CONTRARY TO LAW."1

Pursuant to the Visiting Forces Agreement (VFA) between the Republic of the Philippines and
the United States, entered into on February 10, 1998, the United States, at its request, was
granted custody of defendant Smith pending the proceedings.

During the trial, which was transferred from the Regional Trial Court (RTC) of Zambales to the
RTC of Makati for security reasons, the United States Government faithfully complied with its
undertaking to bring defendant Smith to the trial court every time his presence was required.

On December 4, 2006, the RTC of Makati, following the end of the trial, rendered its Decision,
finding defendant Smith guilty, thus:

WHEREFORE, premises considered, for failure of the prosecution to adduce sufficient evidence
against accused S/SGT. CHAD BRIAN CARPENTER, L/CPL. KEITH SILKWOOD AND
L/CPL. DOMINIC DUPLANTIS, all of the US Marine Corps assigned at the USS Essex, are
hereby ACQUITTED to the crime charged.

The prosecution having presented sufficient evidence against accused L/CPL. DANIEL J.
SMITH, also of the US Marine Corps at the USS Essex, this Court hereby finds him GUILTY
BEYOND REASONABLE DOUBT of the crime of RAPE defined under Article 266-A,
paragraph 1 (a) of the Revised Penal Code, as amended by R.A. 8353, and, in accordance with
Article 266-B, first paragraph thereof, hereby sentences him to suffer the penalty of reclusion
perpetua together with the accessory penalties provided for under Article 41 of the same Code.

Pursuant to Article V, paragraph No. 10, of the Visiting Forces Agreement entered into by the
Philippines and the United States, accused L/CPL. DANIEL J. SMITH shall serve his sentence in
the facilities that shall, thereafter, be agreed upon by appropriate Philippine and United States
authorities. Pending agreement on such facilities, accused L/CPL. DANIEL J. SMITH is hereby
temporarily committed to the Makati City Jail.

Accused L/CPL. DANIEL J. SMITH is further sentenced to indemnify complainant SUZETTE


S. NICOLAS in the amount of P50,000.00 as compensatory damages plus P50,000.00 as moral
damages.

SO ORDERED.2

As a result, the Makati court ordered Smith detained at the Makati jail until further orders.

On December 29, 2006, however, defendant Smith was taken out of the Makati jail by a
contingent of Philippine law enforcement agents, purportedly acting under orders of the
Department of the Interior and Local Government, and brought to a facility for detention under
the control of the United States government, provided for under new agreements between the
Philippines and the United States, referred to as the Romulo-Kenney Agreement of December
19, 2006 which states:

The Government of the Republic of the Philippines and the Government of the United States of
America agree that, in accordance with the Visiting Forces Agreement signed between our two
nations, Lance Corporal Daniel J. Smith, United States Marine Corps, be returned to U.S.
military custody at the U.S. Embassy in Manila.

(Sgd.) Kristie A. Kenney (Sgd.) Alberto G. Romulo


Representative of the United States Representative of the Republic
of America of the Philippines

DATE: 12-19-06 DATE: December 19, 2006

and the Romulo-Kenney Agreement of December 22, 2006 which states:

The Department of Foreign Affairs of the Republic of the Philippines and the Embassy of the
United States of America agree that, in accordance with the Visiting Forces Agreement signed
between the two nations, upon transfer of Lance Corporal Daniel J. Smith, United States Marine
Corps, from the Makati City Jail, he will be detained at the first floor, Rowe (JUSMAG)
Building, U.S. Embassy Compound in a room of approximately 10 x 12 square feet. He will be
guarded round the clock by U.S. military personnel. The Philippine police and jail authorities,
under the direct supervision of the Philippine Department of Interior and Local Government
(DILG) will have access to the place of detention to ensure the United States is in compliance
with the terms of the VFA.
The matter was brought before the Court of Appeals which decided on January 2, 2007, as
follows:

WHEREFORE, all the foregoing considered, we resolved to DISMISS the petition for having
become moot.3

Hence, the present actions.

The petitions were heard on oral arguments on September 19, 2008, after which the parties
submitted their memoranda.

Petitioners contend that the Philippines should have custody of defendant L/CPL Smith because,
first of all, the VFA is void and unconstitutional.

This issue had been raised before, and this Court resolved in favor of the constitutionality of the
VFA. This was in Bayan v. Zamora,4 brought by Bayan, one of petitioners in the present cases.

Against the barriers of res judicata vis--vis Bayan, and stare decisis vis--vis all the parties, the
reversal of the previous ruling is sought on the ground that the issue is of primordial importance,
involving the sovereignty of the Republic, as well as a specific mandate of the Constitution.

The provision of the Constitution is Art. XVIII, Sec. 25 which states:

Sec. 25. After the expiration in 1991 of the Agreement between 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.

The reason for this provision lies in history and the Philippine experience in regard to the United
States military bases in the country.

It will be recalled that under the Philippine Bill of 1902, which laid the basis for the Philippine
Commonwealth and, eventually, for the recognition of independence, the United States agreed to
cede to the Philippines all the territory it acquired from Spain under the Treaty of Paris, plus a
few islands later added to its realm, except certain naval ports and/or military bases and facilities,
which the United States retained for itself.

This is noteworthy, because what this means is that Clark and Subic and the other places in the
Philippines covered by the RP-US Military Bases Agreement of 1947 were not Philippine
territory, as they were excluded from the cession and retained by the US.

Accordingly, the Philippines had no jurisdiction over these bases except to the extent allowed by
the United States. Furthermore, the RP-US Military Bases Agreement was never advised for
ratification by the United States Senate, a disparity in treatment, because the Philippines
regarded it as a treaty and had it concurred in by our Senate.
Subsequently, the United States agreed to turn over these bases to the Philippines; and with the
expiration of the RP-US Military Bases Agreement in 1991, the territory covered by these bases
were finally ceded to the Philippines.

To prevent a recurrence of this experience, the provision in question was adopted in the 1987
Constitution.

The provision is thus designed to ensure that any agreement allowing the presence of foreign
military bases, troops or facilities in Philippine territory shall be equally binding on the
Philippines and the foreign sovereign State involved. The idea is to prevent a recurrence of the
situation in which the terms and conditions governing the presence of foreign armed forces in
our territory were binding upon us but not upon the foreign State.

Applying the provision to the situation involved in these cases, the question is whether or not the
presence of US Armed Forces in Philippine territory pursuant to the VFA is allowed "under a
treaty duly concurred in by the Senate xxx and recognized as a treaty by the other contracting
State."

This Court finds that it is, for two reasons.

First, as held in Bayan v. Zamora,5 the VFA was duly concurred in by the Philippine Senate and
has been recognized as a treaty by the United States as attested and certified by the duly
authorized representative of the United States government.

The fact that the VFA was not submitted for advice and consent of the United States Senate does
not detract from its status as a binding international agreement or treaty recognized by the said
State. For this is a matter of internal United States law. Notice can be taken of the internationally
known practice by the United States of submitting to its Senate for advice and consent
agreements that are policymaking in nature, whereas those that carry out or further implement
these policymaking agreements are merely submitted to Congress, under the provisions of the so-
called CaseZablocki Act, within sixty days from ratification.6

The second reason has to do with the relation between the VFA and the RP-US Mutual Defense
Treaty of August 30, 1951. This earlier agreement was signed and duly ratified with the
concurrence of both the Philippine Senate and the United States Senate.

The RP-US Mutual Defense Treaty states:7

MUTUAL DEFENSE TREATY BETWEEN THE REPUBLIC OF THE PHILIPPINES AND


THE UNITED STATES OF AMERICA. Signed at Washington, August 30, 1951.

The Parties of this Treaty

Reaffirming their faith in the purposes and principles of the Charter of the United Nations and
their desire to live in peace with all peoples and all governments, and desiring to strengthen the
fabric of peace in the Pacific area.
Recalling with mutual pride the historic relationship which brought their two peoples together in
a common bond of sympathy and mutual ideals to fight side-by-side against imperialist
aggression during the last war.

Desiring to declare publicly and formally their sense of unity and their common determination to
defend themselves against external armed attack, so that no potential aggressor could be under
the illusion that either of them stands alone in the Pacific area.

Desiring further to strengthen their present efforts for collective defense for the preservation of
peace and security pending the development of a more comprehensive system of regional
security in the Pacific area.

Agreeing that nothing in this present instrument shall be considered or interpreted as in any way
or sense altering or diminishing any existing agreements or understandings between the Republic
of the Philippines and the United States of America.

Have agreed as follows:

Article I. The parties undertake, as set forth in the Charter of the United Nations, to settle any
international disputes in which they may be involved by peaceful means in such a manner that
international peace and security and justice are not endangered and to refrain in their
international relation from the threat or use of force in any manner inconsistent with the purposes
of the United Nations.

Article II. In 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.

Article III. The Parties, through their Foreign Ministers or their deputies, will consult together
from time to time regarding the implementation of this Treaty and whenever in the opinion of
either of them the territorial integrity, political independence or security of either of the Parties is
threatened by external armed attack in the Pacific.

Article IV. Each Party recognizes that an armed attack in the Pacific area on either of the parties
would be dangerous to its own peace and safety and declares that it would act to meet the
common dangers in accordance with its constitutional processes.

Any such armed attack and all measures taken as a result thereof shall be immediately reported
to the Security Council of the United Nations. Such measures shall be terminated when the
Security Council has taken the measures necessary to restore and maintain international peace
and security.

Article V. For the purpose of Article IV, an armed attack on either of the Parties is deemed to
include an armed attack on the metropolitan territory of either of the Parties, or on the island
territories under its jurisdiction in the Pacific Ocean, its armed forces, public vessels or aircraft in
the Pacific.
Article VI. This Treaty does not affect and shall not be interpreted as affecting in any way the
rights and obligations of the Parties under the Charter of the United Nations or the responsibility
of the United Nations for the maintenance of international peace and security.

Article VII. This Treaty shall be ratified by the Republic of the Philippines and the United
Nations of America in accordance with their respective constitutional processes and will come
into force when instruments of ratification thereof have been exchanged by them at Manila.

Article VIII. This Treaty shall remain in force indefinitely. Either Party may terminate it one year
after notice has been given to the other party.

In withness whereof the undersigned Plenipotentiaries have signed this Treaty.

Done in duplicate at Washington this thirtieth day of August, 1951.

For the Republic of the Philippines:

(Sgd.) Carlos P. Romulo

(Sgd.) Joaquin M. Elizalde

(Sgd.) Vicente J. Francisco

(Sgd.) Diosdado Macapagal

For the United States of America:

(Sgd.) Dean Acheson

(Sgd.) John Foster Dulles

(Sgd.) Tom Connally

(Sgd.) Alexander Wiley8

Clearly, therefore, joint RP-US military exercises for the purpose of developing the capability to
resist an armed attack fall squarely under the provisions of the RP-US Mutual Defense Treaty.
The VFA, which is the instrument agreed upon to provide for the joint RP-US military exercises,
is simply an implementing agreement to the main RP-US Military Defense Treaty. The Preamble
of the VFA states:

The Government of the United States of America and the Government of the Republic of the
Philippines,

Reaffirming their faith in the purposes and principles of the Charter of the United Nations and
their desire to strengthen international and regional security in the Pacific area;
Reaffirming their obligations under the Mutual Defense Treaty of August 30, 1951;

Noting that from time to time elements of the United States armed forces may visit the Republic
of the Philippines;

Considering that cooperation between the United States and the Republic of the Philippines
promotes their common security interests;

Recognizing the desirability of defining the treatment of United States personnel visiting the
Republic of the Philippines;

Have agreed as follows:9

Accordingly, as an implementing agreement of the RP-US Mutual Defense Treaty, it was not
necessary to submit the VFA to the US Senate for advice and consent, but merely to the US
Congress under the CaseZablocki Act within 60 days of its ratification. It is for this reason that
the US has certified that it recognizes the VFA as a binding international agreement, i.e., a treaty,
and this substantially complies with the requirements of Art. XVIII, Sec. 25 of our Constitution.10

The provision of Art. XVIII, Sec. 25 of the Constitution, is complied with by virtue of the fact
that the presence of the US Armed Forces through the VFA is a presence "allowed under" the
RP-US Mutual Defense Treaty. Since the RP-US Mutual Defense Treaty itself has been ratified
and concurred in by both the Philippine Senate and the US Senate, there is no violation of the
Constitutional provision resulting from such presence.

The VFA being a valid and binding agreement, the parties are required as a matter of
international law to abide by its terms and provisions.

The VFA provides that in cases of offenses committed by the members of the US Armed Forces
in the Philippines, the following rules apply:

Article V

Criminal Jurisdiction

xxx

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.

Petitioners contend that these undertakings violate another provision of the Constitution, namely,
that providing for the exclusive power of this Court to adopt rules of procedure for all courts in
the Philippines (Art. VIII, Sec. 5[5]). They argue that to allow the transfer of custody of an
accused to a foreign power is to provide for a different rule of procedure for that accused, which
also violates the equal protection clause of the Constitution (Art. III, Sec. 1.).

Again, this Court finds no violation of the Constitution.

The equal protection clause is not violated, because there is a substantial basis for a different
treatment of a member of a foreign military armed forces allowed to enter our territory and all
other accused.11

The rule in international law is that a foreign armed forces allowed to enter ones territory is
immune from local jurisdiction, except to the extent agreed upon. The Status of Forces
Agreements involving foreign military units around the world vary in terms and conditions,
according to the situation of the parties involved, and reflect their bargaining power. But the
principle remains, i.e., the receiving State can exercise jurisdiction over the forces of the sending
State only to the extent agreed upon by the parties.12

As a result, the situation involved is not one in which the power of this Court to adopt rules of
procedure is curtailed or violated, but rather one in which, as is normally encountered around the
world, the laws (including rules of procedure) of one State do not extend or apply except to the
extent agreed upon to subjects of another State due to the recognition of extraterritorial
immunity given to such bodies as visiting foreign armed forces.

Nothing in the Constitution prohibits such agreements recognizing immunity from jurisdiction or
some aspects of jurisdiction (such as custody), in relation to long-recognized subjects of such
immunity like Heads of State, diplomats and members of the armed forces contingents of a
foreign State allowed to enter another States territory. On the contrary, the Constitution states
that the Philippines adopts the generally accepted principles of international law as part of the
law of the land. (Art. II, Sec. 2).

Applying, however, the provisions of VFA, the Court finds that there is a different treatment
when it comes to detention as against custody. The moment the accused has to be detained, e.g.,
after conviction, the rule that governs is the following provision of the VFA:

Article V

Criminal Jurisdiction

xxx
Sec. 10. The confinement or detention by Philippine authorities of United States personnel shall
be carried out in facilities agreed on by appropriate Philippines and United States authorities.
United States personnel serving sentences in the Philippines shall have the right to visits and
material assistance.

It is clear that the parties to the VFA recognized the difference between custody during the trial
and detention after conviction, because they provided for a specific arrangement to cover
detention. And this specific arrangement clearly states not only that the detention shall be carried
out in facilities agreed on by authorities of both parties, but also that the detention shall be "by
Philippine authorities." Therefore, the Romulo-Kenney Agreements of December 19 and 22,
2006, which are agreements on the detention of the accused in the United States Embassy, are
not in accord with the VFA itself because such detention is not "by Philippine authorities."

Respondents should therefore comply with the VFA and negotiate with representatives of the
United States towards an agreement on detention facilities under Philippine authorities as
mandated by Art. V, Sec. 10 of the VFA.

Next, the Court addresses the recent decision of the United States Supreme Court in Medellin v.
Texas ( 552 US ___ No. 06-984, March 25, 2008), which held that treaties entered into by the
United States are not automatically part of their domestic law unless these treaties are self-
executing or there is an implementing legislation to make them enforceable.1avvphi1

On February 3, 2009, the Court issued a Resolution, thus:

"G.R. No. 175888 (Suzette Nicolas y Sombilon v. Alberto Romulo, et al.); G.R. No. 176051
(Jovito R. Salonga, et al. v. Daniel Smith, et al.); and G.R. No. 176222 (Bagong Alyansang
Makabayan [BAYAN], et al. v. President Gloria Macapagal-Arroyo, et al.).

The parties, including the Solicitor General, are required to submit within three (3) days a
Comment/Manifestation on the following points:

1. What is the implication on the RP-US Visiting Forces Agreement of the recent US
Supreme Court decision in Jose Ernesto Medellin v. Texas, dated March 25, 2008, to the
effect that treaty stipulations that are not self-executory can only be enforced pursuant to
legislation to carry them into effect; and that, while treaties may comprise international
commitments, they are not domestic law unless Congress has enacted implementing
statutes or the treaty itself conveys an intention that it be "self-executory" and is ratified
on these terms?

2. Whether the VFA is enforceable in the US as domestic law, either because it is self-
executory or because there exists legislation to implement it.

3. Whether the RP-US Mutual Defense Treaty of August 30, 1951 was concurred in by
the US Senate and, if so, is there proof of the US Senate advice and consent resolution?
Peralta, J., no part."
After deliberation, the Court holds, on these points, as follows:

First, the VFA is a self-executing Agreement, as that term is defined in Medellin itself, because
the parties intend its provisions to be enforceable, precisely because the Agreement is intended to
carry out obligations and undertakings under the RP-US Mutual Defense Treaty. As a matter of
fact, the VFA has been implemented and executed, with the US faithfully complying with its
obligation to produce L/CPL Smith before the court during the trial.

Secondly, the VFA is covered by implementing legislation, namely, the Case-Zablocki Act, USC
Sec. 112(b), inasmuch as it is the very purpose and intent of the US Congress that executive
agreements registered under this Act within 60 days from their ratification be immediately
implemented. The parties to these present cases do not question the fact that the VFA has been
registered under the Case-Zablocki Act.1avvphi1

In sum, therefore, the VFA differs from the Vienna Convention on Consular Relations and the
Avena decision of the International Court of Justice (ICJ), subject matter of the Medellin
decision. The Convention and the ICJ decision are not self-executing and are not registrable
under the Case-Zablocki Act, and thus lack legislative implementing authority.

Finally, the RP-US Mutual Defense Treaty was advised and consented to by the US Senate on
March 20, 1952, as reflected in the US Congressional Record, 82nd Congress, Second Session,
Vol. 98 Part 2, pp. 2594-2595.

The framers of the Constitution were aware that the application of international law in domestic
courts varies from country to country.

As Ward N. Ferdinandusse states in his Treatise, DIRECT APPLICATION OF


INTERNATIONAL CRIMINAL LAW IN NATIONAL COURTS, some countries require
legislation whereas others do not.

It was not the intention of the framers of the 1987 Constitution, in adopting Article XVIII, Sec.
25, to require the other contracting State to convert their system to achieve alignment and parity
with ours. It was simply required that the treaty be recognized as a treaty by the other contracting
State. With that, it becomes for both parties a binding international obligation and the
enforcement of that obligation is left to the normal recourse and processes under international
law.

Furthermore, as held by the US Supreme Court in Weinberger v. Rossi,13 an executive agreement


is a "treaty" within the meaning of that word in international law and constitutes enforceable
domestic law vis--vis the United States. Thus, the US Supreme Court in Weinberger enforced
the provisions of the executive agreement granting preferential employment to Filipinos in the
US Bases here.

Accordingly, there are three types of treaties in the American system:


1. Art. II, Sec. 2 treaties These are advised and consented to by the US Senate in
accordance with Art. II, Sec. 2 of the US Constitution.

2. ExecutiveCongressional Agreements: These are joint agreements of the President and


Congress and need not be submitted to the Senate.

3. Sole Executive Agreements. These are agreements entered into by the President.
They are to be submitted to Congress within sixty (60) days of ratification under the
provisions of the Case-Zablocki Act, after which they are recognized by the Congress and
may be implemented.

As regards the implementation of the RP-US Mutual Defense Treaty, military aid or assistance
has been given under it and this can only be done through implementing legislation. The VFA
itself is another form of implementation of its provisions.

WHEREFORE, the petitions are PARTLY GRANTED, and the Court of Appeals Decision in
CA-G.R. SP No. 97212 dated January 2, 2007 is MODIFIED. The Visiting Forces Agreement
(VFA) between the Republic of the Philippines and the United States, entered into on February
10, 1998, is UPHELD as constitutional, but the Romulo-Kenney Agreements of December 19
and 22, 2006 are DECLARED not in accordance with the VFA, and respondent Secretary of
Foreign Affairs is hereby ordered to forthwith negotiate with the United States representatives for
the appropriate agreement on detention facilities under Philippine authorities as provided in Art.
V, Sec. 10 of the VFA, pending which the status quo shall be maintained until further orders by
this Court.

The Court of Appeals is hereby directed to resolve without delay the related matters pending
therein, namely, the petition for contempt and the appeal of L/CPL Daniel Smith from the
judgment of conviction.

No costs.

SO ORDERED.

G.R. No. 173034 October 9, 2007

PHARMACEUTICAL AND HEALTH CARE ASSOCIATION OF THE PHILIPPINES,


petitioner,
vs.
HEALTH SECRETARY FRANCISCO T. DUQUE III; HEALTH UNDER SECRETARIES
DR. ETHELYN P. NIETO, DR. MARGARITA M. GALON, ATTY. ALEXANDER A.
PADILLA, & DR. JADE F. DEL MUNDO; and ASSISTANT SECRETARIES DR. MARIO
C. VILLAVERDE, DR. DAVID J. LOZADA, AND DR. NEMESIO T. GAKO, respondents.

DECISION

AUSTRIA-MARTINEZ, J.:
The Court and all parties involved are in agreement that the best nourishment for an infant is
mother's milk. There is nothing greater than for a mother to nurture her beloved child straight
from her bosom. The ideal is, of course, for each and every Filipino child to enjoy the unequaled
benefits of breastmilk. But how should this end be attained?

Before the Court is a petition for certiorari under Rule 65 of the Rules of Court, seeking to
nullify Administrative Order (A.O.) No. 2006-0012 entitled, Revised Implementing Rules and
Regulations of Executive Order No. 51, Otherwise Known as The "Milk Code," Relevant
International Agreements, Penalizing Violations Thereof, and for Other Purposes (RIRR).
Petitioner posits that the RIRR is not valid as it contains provisions that are not constitutional and
go beyond the law it is supposed to implement.

Named as respondents are the Health Secretary, Undersecretaries, and Assistant Secretaries of
the Department of Health (DOH). For purposes of herein petition, the DOH is deemed impleaded
as a co-respondent since respondents issued the questioned RIRR in their capacity as officials of
said executive agency.1

Executive Order No. 51 (Milk Code) was issued by President Corazon Aquino on October 28,
1986 by virtue of the legislative powers granted to the president under the Freedom Constitution.
One of the preambular clauses of the Milk Code states that the law seeks to give effect to Article
112 of the International Code of Marketing of Breastmilk Substitutes (ICMBS), a code adopted
by the World Health Assembly (WHA) in 1981. From 1982 to 2006, the WHA adopted several
Resolutions to the effect that breastfeeding should be supported, promoted and protected, hence,
it should be ensured that nutrition and health claims are not permitted for breastmilk substitutes.

In 1990, the Philippines ratified the International Convention on the Rights of the Child. Article
24 of said instrument provides that State Parties should take appropriate measures to diminish
infant and child mortality, and ensure that all segments of society, specially parents and children,
are informed of the advantages of breastfeeding.

On May 15, 2006, the DOH issued herein assailed RIRR which was to take effect on July 7,
2006.

However, on June 28, 2006, petitioner, representing its members that are manufacturers of
breastmilk substitutes, filed the present Petition for Certiorari and Prohibition with Prayer for the
Issuance of a Temporary Restraining Order (TRO) or Writ of Preliminary Injunction.

The main issue raised in the petition is whether respondents officers of the DOH acted without or
in excess of jurisdiction, or with grave abuse of discretion amounting to lack or excess of
jurisdiction, and in violation of the provisions of the Constitution in promulgating the RIRR.3

On August 15, 2006, the Court issued a Resolution granting a TRO enjoining respondents from
implementing the questioned RIRR.
After the Comment and Reply had been filed, the Court set the case for oral arguments on June
19, 2007. The Court issued an Advisory (Guidance for Oral Arguments) dated June 5, 2007, to
wit:

The Court hereby sets the following issues:

1. Whether or not petitioner is a real party-in-interest;

2. Whether Administrative Order No. 2006-0012 or the Revised Implementing Rules and
Regulations (RIRR) issued by the Department of Health (DOH) is not constitutional;

2.1 Whether the RIRR is in accord with the provisions of Executive Order No. 51 (Milk
Code);

2.2 Whether pertinent international agreements1 entered into by the Philippines are part of
the law of the land and may be implemented by the DOH through the RIRR; If in the
affirmative, whether the RIRR is in accord with the international agreements;

2.3 Whether Sections 4, 5(w), 22, 32, 47, and 52 of the RIRR violate the due process
clause and are in restraint of trade; and

2.4 Whether Section 13 of the RIRR on Total Effect provides sufficient standards.

_____________

1 (1) United Nations Convention on the Rights of the Child; (2) the WHO and Unicef
"2002 Global Strategy on Infant and Young Child Feeding;" and (3) various World Health
Assembly (WHA) Resolutions.

The parties filed their respective memoranda.

The petition is partly imbued with merit.

On the issue of petitioner's standing

With regard to the issue of whether petitioner may prosecute this case as the real party-in-
interest, the Court adopts the view enunciated in Executive Secretary v. Court of Appeals,4 to wit:

The modern view is that an association has standing to complain of injuries to its
members. This view fuses the legal identity of an association with that of its members.
An association has standing to file suit for its workers despite its lack of direct
interest if its members are affected by the action. An organization has standing to
assert the concerns of its constituents.

xxxx
x x x We note that, under its Articles of Incorporation, the respondent was organized x x x
to act as the representative of any individual, company, entity or association on matters
related to the manpower recruitment industry, and to perform other acts and activities
necessary to accomplish the purposes embodied therein. The respondent is, thus, the
appropriate party to assert the rights of its members, because it and its members are
in every practical sense identical. x x x The respondent [association] is but the
medium through which its individual members seek to make more effective the
expression of their voices and the redress of their grievances. 5 (Emphasis supplied)

which was reasserted in Purok Bagong Silang Association, Inc. v. Yuipco,6 where the Court ruled
that an association has the legal personality to represent its members because the results of the
case will affect their vital interests.7

Herein petitioner's Amended Articles of Incorporation contains a similar provision just like in
Executive Secretary, that the association is formed "to represent directly or through approved
representatives the pharmaceutical and health care industry before the Philippine Government
and any of its agencies, the medical professions and the general public."8 Thus, as an
organization, petitioner definitely has an interest in fulfilling its avowed purpose of representing
members who are part of the pharmaceutical and health care industry. Petitioner is duly
authorized9 to take the appropriate course of action to bring to the attention of government
agencies and the courts any grievance suffered by its members which are directly affected by the
RIRR. Petitioner, which is mandated by its Amended Articles of Incorporation to represent the
entire industry, would be remiss in its duties if it fails to act on governmental action that would
affect any of its industry members, no matter how few or numerous they are. Hence, petitioner,
whose legal identity is deemed fused with its members, should be considered as a real party-in-
interest which stands to be benefited or injured by any judgment in the present action.

On the constitutionality of the provisions of the RIRR

First, the Court will determine if pertinent international instruments adverted to by respondents
are part of the law of the land.

Petitioner assails the RIRR for allegedly going beyond the provisions of the Milk Code, thereby
amending and expanding the coverage of said law. The defense of the DOH is that the RIRR
implements not only the Milk Code but also various international instruments10 regarding infant
and young child nutrition. It is respondents' position that said international instruments are
deemed part of the law of the land and therefore the DOH may implement them through the
RIRR.

The Court notes that the following international instruments invoked by respondents, namely: (1)
The United Nations Convention on the Rights of the Child; (2) The International Covenant on
Economic, Social and Cultural Rights; and (3) the Convention on the Elimination of All Forms
of Discrimination Against Women, only provide in general terms that steps must be taken by
State Parties to diminish infant and child mortality and inform society of the advantages of
breastfeeding, ensure the health and well-being of families, and ensure that women are provided
with services and nutrition in connection with pregnancy and lactation. Said instruments do not
contain specific provisions regarding the use or marketing of breastmilk substitutes.

The international instruments that do have specific provisions regarding breastmilk substitutes
are the ICMBS and various WHA Resolutions.

Under the 1987 Constitution, international law can become part of the sphere of domestic law
either by transformation or incorporation.11 The transformation method requires that an
international law be transformed into a domestic law through a constitutional mechanism such as
local legislation. The incorporation method applies when, by mere constitutional declaration,
international law is deemed to have the force of domestic law.12

Treaties become part of the law of the land through transformation pursuant to Article VII,
Section 21 of the Constitution which provides that "[n]o treaty or international agreement shall
be valid and effective unless concurred in by at least two-thirds of all the members of the
Senate." Thus, treaties or conventional international law must go through a process prescribed by
the Constitution for it to be transformed into municipal law that can be applied to domestic
conflicts.13

The ICMBS and WHA Resolutions are not treaties as they have not been concurred in by at least
two-thirds of all members of the Senate as required under Section 21, Article VII of the 1987
Constitution.

However, the ICMBS which was adopted by the WHA in 1981 had been transformed into
domestic law through local legislation, the Milk Code. Consequently, it is the Milk Code that has
the force and effect of law in this jurisdiction and not the ICMBS per se.

The Milk Code is almost a verbatim reproduction of the ICMBS, but it is well to emphasize at
this point that the Code did not adopt the provision in the ICMBS absolutely prohibiting
advertising or other forms of promotion to the general public of products within the scope of the
ICMBS. Instead, the Milk Code expressly provides that advertising, promotion, or other
marketing materials may be allowed if such materials are duly authorized and approved by
the Inter-Agency Committee (IAC).

On the other hand, Section 2, Article II of the 1987 Constitution, to wit:

SECTION 2. The Philippines renounces war as an instrument of national policy, adopts


the generally accepted principles of international law as part of the law of the land and
adheres to the policy of peace, equality, justice, freedom, cooperation and amity with all
nations. (Emphasis supplied)

embodies the incorporation method.14

In Mijares v. Ranada,15 the Court held thus:


[G]enerally accepted principles of international law, by virtue of the incorporation clause
of the Constitution, form part of the laws of the land even if they do not derive from
treaty obligations. The classical formulation in international law sees those customary
rules accepted as binding result from the combination [of] two elements: the established,
widespread, and consistent practice on the part of States; and a psychological element
known as the opinion juris sive necessitates (opinion as to law or necessity). Implicit in
the latter element is a belief that the practice in question is rendered obligatory by the
existence of a rule of law requiring it.16 (Emphasis supplied)

"Generally accepted principles of international law" refers to norms of general or customary


international law which are binding on all states,17 i.e., renunciation of war as an instrument of
national policy, the principle of sovereign immunity,18 a person's right to life, liberty and due
process,19 and pacta sunt servanda,20 among others. The concept of "generally accepted
principles of law" has also been depicted in this wise:

Some legal scholars and judges look upon certain "general principles of law" as a primary source
of international law because they have the "character of jus rationale" and are "valid
through all kinds of human societies." (Judge Tanaka in his dissenting opinion in the 1966
South West Africa Case, 1966 I.C.J. 296). O'Connell holds that certain priniciples are part of
international law because they are "basic to legal systems generally" and hence part of the
jus gentium. These principles, he believes, are established by a process of reasoning based on
the common identity of all legal systems. If there should be doubt or disagreement, one must
look to state practice and determine whether the municipal law principle provides a just and
acceptable solution. x x x 21 (Emphasis supplied)

Fr. Joaquin G. Bernas defines customary international law as follows:

Custom or customary international law means "a general and consistent practice of states
followed by them from a sense of legal obligation [opinio juris]." (Restatement) This
statement contains the two basic elements of custom: the material factor, that is, how
states behave, and the psychological or subjective factor, that is, why they behave the
way they do.

xxxx

The initial factor for determining the existence of custom is the actual behavior of states.
This includes several elements: duration, consistency, and generality of the practice of
states.

The required duration can be either short or long. x x x

xxxx

Duration therefore is not the most important element. More important is the consistency
and the generality of the practice. x x x
xxxx

Once the existence of state practice has been established, it becomes necessary to
determine why states behave the way they do. Do states behave the way they do because
they consider it obligatory to behave thus or do they do it only as a matter of
courtesy? Opinio juris, or the belief that a certain form of behavior is obligatory, is
what makes practice an international rule. Without it, practice is not law.22
(Underscoring and Emphasis supplied)

Clearly, customary international law is deemed incorporated into our domestic system.23

WHA Resolutions have not been embodied in any local legislation. Have they attained the status
of customary law and should they then be deemed incorporated as part of the law of the land?

The World Health Organization (WHO) is one of the international specialized agencies allied
with the United Nations (UN) by virtue of Article 57,24 in relation to Article 6325 of the UN
Charter. Under the 1946 WHO Constitution, it is the WHA which determines the policies of the
WHO,26 and has the power to adopt regulations concerning "advertising and labeling of
biological, pharmaceutical and similar products moving in international commerce,"27 and to
"make recommendations to members with respect to any matter within the competence of the
Organization."28 The legal effect of its regulations, as opposed to recommendations, is quite
different.

Regulations, along with conventions and agreements, duly adopted by the WHA bind member
states thus:

Article 19. The Health Assembly shall have authority to adopt conventions or agreements
with respect to any matter within the competence of the Organization. A two-thirds vote
of the Health Assembly shall be required for the adoption of such conventions or
agreements, which shall come into force for each Member when accepted by it in
accordance with its constitutional processes.

Article 20. Each Member undertakes that it will, within eighteen months after the
adoption by the Health Assembly of a convention or agreement, take action relative to
the acceptance of such convention or agreement. Each Member shall notify the
Director-General of the action taken, and if it does not accept such convention or
agreement within the time limit, it will furnish a statement of the reasons for non-
acceptance. In case of acceptance, each Member agrees to make an annual report to the
Director-General in accordance with Chapter XIV.

Article 21. The Health Assembly shall have authority to adopt regulations concerning: (a)
sanitary and quarantine requirements and other procedures designed to prevent the
international spread of disease; (b) nomenclatures with respect to diseases, causes of
death and public health practices; (c) standards with respect to diagnostic procedures for
international use; (d) standards with respect to the safety, purity and potency of
biological, pharmaceutical and similar products moving in international commerce; (e)
advertising and labeling of biological, pharmaceutical and similar products moving in
international commerce.

Article 22. Regulations adopted pursuant to Article 21 shall come into force for all
Members after due notice has been given of their adoption by the Health Assembly except
for such Members as may notify the Director-General of rejection or reservations within
the period stated in the notice. (Emphasis supplied)

On the other hand, under Article 23, recommendations of the WHA do not come into force
for members, in the same way that conventions or agreements under Article 19 and regulations
under Article 21 come into force. Article 23 of the WHO Constitution reads:

Article 23. The Health Assembly shall have authority to make recommendations to
Members with respect to any matter within the competence of the Organization.
(Emphasis supplied)

The absence of a provision in Article 23 of any mechanism by which the recommendation would
come into force for member states is conspicuous.

The former Senior Legal Officer of WHO, Sami Shubber, stated that WHA recommendations are
generally not binding, but they "carry moral and political weight, as they constitute the judgment
on a health issue of the collective membership of the highest international body in the field of
health."29 Even the ICMBS itself was adopted as a mere recommendation, as WHA Resolution
No. 34.22 states:

"The Thirty-Fourth World Health Assembly x x x adopts, in the sense of Article 23 of


the Constitution, the International Code of Marketing of Breastmilk Substitutes annexed
to the present resolution." (Emphasis supplied)

The Introduction to the ICMBS also reads as follows:

In January 1981, the Executive Board of the World Health Organization at its sixty-
seventh session, considered the fourth draft of the code, endorsed it, and unanimously
recommended to the Thirty-fourth World Health Assembly the text of a resolution by
which it would adopt the code in the form of a recommendation rather than a
regulation. x x x (Emphasis supplied)

The legal value of WHA Resolutions as recommendations is summarized in Article 62 of the


WHO Constitution, to wit:

Art. 62. Each member shall report annually on the action taken with respect to
recommendations made to it by the Organization, and with respect to conventions,
agreements and regulations.

Apparently, the WHA Resolution adopting the ICMBS and subsequent WHA Resolutions urging
member states to implement the ICMBS are merely recommendatory and legally non-binding.
Thus, unlike what has been done with the ICMBS whereby the legislature enacted most of
the provisions into law which is the Milk Code, the subsequent WHA Resolutions,30
specifically providing for exclusive breastfeeding from 0-6 months, continued breastfeeding
up to 24 months, and absolutely prohibiting advertisements and promotions of breastmilk
substitutes, have not been adopted as a domestic law.

It is propounded that WHA Resolutions may constitute "soft law" or non-binding norms,
principles and practices that influence state behavior.31

"Soft law" does not fall into any of the categories of international law set forth in Article 38,
Chapter III of the 1946 Statute of the International Court of Justice.32 It is, however, an
expression of non-binding norms, principles, and practices that influence state behavior.33 Certain
declarations and resolutions of the UN General Assembly fall under this category.34 The most
notable is the UN Declaration of Human Rights, which this Court has enforced in various cases,
specifically, Government of Hongkong Special Administrative Region v. Olalia,35 Mejoff v.
Director of Prisons,36 Mijares v. Raada37 and Shangri-la International Hotel Management, Ltd.
v. Developers Group of Companies, Inc..38

The World Intellectual Property Organization (WIPO), a specialized agency attached to the UN
with the mandate to promote and protect intellectual property worldwide, has resorted to soft law
as a rapid means of norm creation, in order "to reflect and respond to the changing needs and
demands of its constituents."39 Other international organizations which have resorted to soft law
include the International Labor Organization and the Food and Agriculture Organization (in the
form of the Codex Alimentarius).40

WHO has resorted to soft law. This was most evident at the time of the Severe Acute Respiratory
Syndrome (SARS) and Avian flu outbreaks.

Although the IHR Resolution does not create new international law binding on WHO
member states, it provides an excellent example of the power of "soft law" in
international relations. International lawyers typically distinguish binding rules of
international law-"hard law"-from non-binding norms, principles, and practices that
influence state behavior-"soft law." WHO has during its existence generated many soft
law norms, creating a "soft law regime" in international governance for public health.

The "soft law" SARS and IHR Resolutions represent significant steps in laying the
political groundwork for improved international cooperation on infectious diseases.
These resolutions clearly define WHO member states' normative duty to cooperate fully
with other countries and with WHO in connection with infectious disease surveillance
and response to outbreaks.

This duty is neither binding nor enforceable, but, in the wake of the SARS epidemic,
the duty is powerful politically for two reasons. First, the SARS outbreak has taught the
lesson that participating in, and enhancing, international cooperation on infectious disease
controls is in a country's self-interest x x x if this warning is heeded, the "soft law" in the
SARS and IHR Resolution could inform the development of general and consistent state
practice on infectious disease surveillance and outbreak response, perhaps crystallizing
eventually into customary international law on infectious disease prevention and
control.41

In the Philippines, the executive department implemented certain measures recommended by


WHO to address the outbreaks of SARS and Avian flu by issuing Executive Order (E.O.) No.
201 on April 26, 2003 and E.O. No. 280 on February 2, 2004, delegating to various departments
broad powers to close down schools/establishments, conduct health surveillance and monitoring,
and ban importation of poultry and agricultural products.

It must be emphasized that even under such an international emergency, the duty of a state to
implement the IHR Resolution was still considered not binding or enforceable, although said
resolutions had great political influence.

As previously discussed, for an international rule to be considered as customary law, it must be


established that such rule is being followed by states because they consider it obligatory to
comply with such rules (opinio juris). Respondents have not presented any evidence to prove
that the WHA Resolutions, although signed by most of the member states, were in fact enforced
or practiced by at least a majority of the member states; neither have respondents proven that any
compliance by member states with said WHA Resolutions was obligatory in nature.

Respondents failed to establish that the provisions of pertinent WHA Resolutions are customary
international law that may be deemed part of the law of the land.

Consequently, legislation is necessary to transform the provisions of the WHA Resolutions into
domestic law. The provisions of the WHA Resolutions cannot be considered as part of the
law of the land that can be implemented by executive agencies without the need of a law
enacted by the legislature.

Second, the Court will determine whether the DOH may implement the provisions of the WHA
Resolutions by virtue of its powers and functions under the Revised Administrative Code even in
the absence of a domestic law.

Section 3, Chapter 1, Title IX of the Revised Administrative Code of 1987 provides that the
DOH shall define the national health policy and implement a national health plan within the
framework of the government's general policies and plans, and issue orders and regulations
concerning the implementation of established health policies.

It is crucial to ascertain whether the absolute prohibition on advertising and other forms of
promotion of breastmilk substitutes provided in some WHA Resolutions has been adopted as part
of the national health policy.

Respondents submit that the national policy on infant and young child feeding is embodied in
A.O. No. 2005-0014, dated May 23, 2005. Basically, the Administrative Order declared the
following policy guidelines: (1) ideal breastfeeding practices, such as early initiation of
breastfeeding, exclusive breastfeeding for the first six months, extended breastfeeding up to two
years and beyond; (2) appropriate complementary feeding, which is to start at age six months; (3)
micronutrient supplementation; (4) universal salt iodization; (5) the exercise of other feeding
options; and (6) feeding in exceptionally difficult circumstances. Indeed, the primacy of
breastfeeding for children is emphasized as a national health policy. However, nowhere in A.O.
No. 2005-0014 is it declared that as part of such health policy, the advertisement or
promotion of breastmilk substitutes should be absolutely prohibited.

The national policy of protection, promotion and support of breastfeeding cannot automatically
be equated with a total ban on advertising for breastmilk substitutes.

In view of the enactment of the Milk Code which does not contain a total ban on the advertising
and promotion of breastmilk substitutes, but instead, specifically creates an IAC which will
regulate said advertising and promotion, it follows that a total ban policy could be implemented
only pursuant to a law amending the Milk Code passed by the constitutionally authorized
branch of government, the legislature.

Thus, only the provisions of the Milk Code, but not those of subsequent WHA Resolutions,
can be validly implemented by the DOH through the subject RIRR.

Third, the Court will now determine whether the provisions of the RIRR are in accordance with
those of the Milk Code.

In support of its claim that the RIRR is inconsistent with the Milk Code, petitioner alleges the
following:

1. The Milk Code limits its coverage to children 0-12 months old, but the RIRR extended
its coverage to "young children" or those from ages two years old and beyond:

MILK CODE RIRR

WHEREAS, in order to ensure that safe and Section 2. Purpose These Revised Rules
adequate nutrition for infants is provided, and Regulations are hereby promulgated to
there is a need to protect and promote ensure the provision of safe and adequate
breastfeeding and to inform the public about nutrition for infants and young children by
the proper use of breastmilk substitutes and the promotion, protection and support of
supplements and related products through breastfeeding and by ensuring the proper use
adequate, consistent and objective of breastmilk substitutes, breastmilk
information and appropriate regulation of the supplements and related products when these
marketing and distribution of the said are medically indicated and only when
substitutes, supplements and related products; necessary, on the basis of adequate
information and through appropriate
SECTION 4(e). "Infant" means a person marketing and distribution.
falling within the age bracket of 0-12 months.
Section 5(ff). "Young Child" means a person
from the age of more than twelve (12)
months up to the age of three (3) years (36
months).

2. The Milk Code recognizes that infant formula may be a proper and possible substitute
for breastmilk in certain instances; but the RIRR provides "exclusive breastfeeding for
infants from 0-6 months" and declares that "there is no substitute nor replacement for
breastmilk":

MILK CODE RIRR

WHEREAS, in order to ensure that safe and Section 4. Declaration of Principles The
adequate nutrition for infants is provided, following are the underlying principles from
there is a need to protect and promote which the revised rules and regulations are
breastfeeding and to inform the public about premised upon:
the proper use of breastmilk substitutes and
supplements and related products through a. Exclusive breastfeeding is for infants from
adequate, consistent and objective 0 to six (6) months.
information and appropriate regulation of the
marketing and distribution of the said b. There is no substitute or replacement for
substitutes, supplements and related products; breastmilk.

3. The Milk Code only regulates and does not impose unreasonable requirements for
advertising and promotion; RIRR imposes an absolute ban on such activities for
breastmilk substitutes intended for infants from 0-24 months old or beyond, and forbids
the use of health and nutritional claims. Section 13 of the RIRR, which provides for a
"total effect" in the promotion of products within the scope of the Code, is vague:

MILK CODE RIRR

SECTION 6. The General Public and Section 4. Declaration of Principles The


Mothers. following are the underlying principles from
which the revised rules and regulations are
(a) No advertising, promotion or other premised upon:
marketing materials, whether written, audio
or visual, for products within the scope of xxxx
this Code shall be printed, published,
distributed, exhibited and broadcast unless f. Advertising, promotions, or sponsor-ships
such materials are duly authorized and of infant formula, breastmilk substitutes and
approved by an inter-agency committee other related products are prohibited.
created herein pursuant to the applicable
standards provided for in this Code. Section 11. Prohibition No advertising,
promotions, sponsorships, or marketing
materials and activities for breastmilk
substitutes intended for infants and young
children up to twenty-four (24) months, shall
be allowed, because they tend to convey or
give subliminal messages or impressions that
undermine breastmilk and breastfeeding or
otherwise exaggerate breastmilk substitutes
and/or replacements, as well as related
products covered within the scope of this
Code.

Section 13. "Total Effect" - Promotion of


products within the scope of this Code must
be objective and should not equate or make
the product appear to be as good or equal to
breastmilk or breastfeeding in the advertising
concept. It must not in any case undermine
breastmilk or breastfeeding. The "total effect"
should not directly or indirectly suggest that
buying their product would produce better
individuals, or resulting in greater love,
intelligence, ability, harmony or in any
manner bring better health to the baby or
other such exaggerated and unsubstantiated
claim.

Section 15. Content of Materials. - The


following shall not be included in
advertising, promotional and marketing
materials:

a. Texts, pictures, illustrations or information


which discourage or tend to undermine the
benefits or superiority of breastfeeding or
which idealize the use of breastmilk
substitutes and milk supplements. In this
connection, no pictures of babies and
children together with their mothers, fathers,
siblings, grandparents, other relatives or
caregivers (or yayas) shall be used in any
advertisements for infant formula and
breastmilk supplements;

b. The term "humanized," "maternalized,"


"close to mother's milk" or similar words in
describing breastmilk substitutes or milk
supplements;

c. Pictures or texts that idealize the use of


infant and milk formula.

Section 16. All health and nutrition claims


for products within the scope of the Code are
absolutely prohibited. For this purpose, any
phrase or words that connotes to increase
emotional, intellectual abilities of the infant
and young child and other like phrases shall
not be allowed.

4. The RIRR imposes additional labeling requirements not found in the Milk Code:

MILK CODE RIRR

SECTION 10. Containers/Label. Section 26. Content Each container/label


shall contain such message, in both Filipino
(a) Containers and/or labels shall be designed and English languages, and which message
to provide the necessary information about cannot be readily separated therefrom,
the appropriate use of the products, and in relative the following points:
such a way as not to discourage
breastfeeding. (a) The words or phrase "Important Notice"
or "Government Warning" or their equivalent;
(b) Each container shall have a clear,
conspicuous and easily readable and (b) A statement of the superiority of
understandable message in Pilipino or breastfeeding;
English printed on it, or on a label, which
message can not readily become separated (c) A statement that there is no substitute for
from it, and which shall include the following breastmilk;
points:
(d) A statement that the product shall be used
(i) the words "Important Notice" or their only on the advice of a health worker as to
equivalent; the need for its use and the proper methods of
(ii) a statement of the superiority of use;
breastfeeding;
(e) Instructions for appropriate prepara-tion,
(iii) a statement that the product shall be used and a warning against the health hazards of
only on the advice of a health worker as to inappropriate preparation; and
the need for its use and the proper methods of
use; and (f) The health hazards of unnecessary or
improper use of infant formula and other
(iv) instructions for appropriate preparation, related products including information that
and a warning against the health hazards of powdered infant formula may contain
inappropriate preparation. pathogenic microorganisms and must be
prepared and used appropriately.

5. The Milk Code allows dissemination of information on infant formula to health


professionals; the RIRR totally prohibits such activity:

MILK CODE RIRR

SECTION 7. Health Care System. Section 22. No manufacturer, distributor, or


representatives of products covered by the
(b) No facility of the health care system shall Code shall be allowed to conduct or be
be used for the purpose of promoting infant involved in any activity on breastfeeding
formula or other products within the scope of promotion, education and production of
this Code. This Code does not, however, Information, Education and Communication
preclude the dissemination of information to (IEC) materials on breastfeeding, holding of
health professionals as provided in Section or participating as speakers in classes or
8(b). seminars for women and children activities
and to avoid the use of these venues to
SECTION 8. Health Workers. - market their brands or company names.

(b) Information provided by manufacturers SECTION 16. All health and nutrition
and distributors to health professionals claims for products within the scope of the
regarding products within the scope of this Code are absolutely prohibited. For this
Code shall be restricted to scientific and purpose, any phrase or words that connotes to
factual matters and such information shall not increase emotional, intellectual abilities of
imply or create a belief that bottle-feeding is the infant and young child and other like
equivalent or superior to breastfeeding. It phrases shall not be allowed.
shall also include the information specified in
Section 5(b).
6. The Milk Code permits milk manufacturers and distributors to extend assistance in
research and continuing education of health professionals; RIRR absolutely forbids the
same.

MILK CODE RIRR

SECTION 8. Health Workers Section 4. Declaration of Principles

(e) Manufacturers and distributors of The following are the underlying principles
products within the scope of this Code may from which the revised rules and regulations
assist in the research, scholarships and are premised upon:
continuing education, of health professionals,
in accordance with the rules and regulations i. Milk companies, and their representatives,
promulgated by the Ministry of Health. should not form part of any policymaking
body or entity in relation to the advancement
of breasfeeding.

SECTION 22. No manufacturer, distributor,


or representatives of products covered by the
Code shall be allowed to conduct or be
involved in any activity on breastfeeding
promotion, education and production of
Information, Education and Communication
(IEC) materials on breastfeeding, holding of
or participating as speakers in classes or
seminars for women and children activities
and to avoid the use of these venues to
market their brands or company names.

SECTION 32. Primary Responsibility of


Health Workers - It is the primary
responsibility of the health workers to
promote, protect and support breastfeeding
and appropriate infant and young child
feeding. Part of this responsibility is to
continuously update their knowledge and
skills on breastfeeding. No assistance,
support, logistics or training from milk
companies shall be permitted.

7. The Milk Code regulates the giving of donations; RIRR absolutely prohibits it.
MILK CODE RIRR

SECTION 6. The General Public and Section 51. Donations Within the Scope of
Mothers. This Code - Donations of products,
materials, defined and covered under the
(f) Nothing herein contained shall prevent Milk Code and these implementing rules and
donations from manufacturers and regulations, shall be strictly prohibited.
distributors of products within the scope of
this Code upon request by or with the Section 52. Other Donations By Milk
approval of the Ministry of Health. Companies Not Covered by this Code. -
Donations of products, equipments, and the
like, not otherwise falling within the scope of
this Code or these Rules, given by milk
companies and their agents, representatives,
whether in kind or in cash, may only be
coursed through the Inter Agency Committee
(IAC), which shall determine whether such
donation be accepted or otherwise.

8. The RIRR provides for administrative sanctions not imposed by the Milk Code.

MILK CODE RIRR

Section 46. Administrative Sanctions.


The following administrative sanctions shall
be imposed upon any person, juridical or
natural, found to have violated the provisions
of the Code and its implementing Rules and
Regulations:

a) 1st violation Warning;

b) 2nd violation Administrative fine of a


minimum of Ten Thousand (P10,000.00) to
Fifty Thousand (P50,000.00) Pesos,
depending on the gravity and extent of the
violation, including the recall of the
offending product;

c) 3rd violation Administrative Fine of a


minimum of Sixty Thousand (P60,000.00) to
One Hundred Fifty Thousand (P150,000.00)
Pesos, depending on the gravity and extent of
the violation, and in addition thereto, the
recall of the offending product, and
suspension of the Certificate of Product
Registration (CPR);

d) 4th violation Administrative Fine of a


minimum of Two Hundred Thousand
(P200,000.00) to Five Hundred
(P500,000.00) Thousand Pesos, depending on
the gravity and extent of the violation; and in
addition thereto, the recall of the product,
revocation of the CPR, suspension of the
License to Operate (LTO) for one year;

e) 5th and succeeding repeated violations


Administrative Fine of One Million
(P1,000,000.00) Pesos, the recall of the
offending product, cancellation of the CPR,
revocation of the License to Operate (LTO)
of the company concerned, including the
blacklisting of the company to be furnished
the Department of Budget and Management
(DBM) and the Department of Trade and
Industry (DTI);

f) An additional penalty of Two Thou-sand


Five Hundred (P2,500.00) Pesos per day
shall be made for every day the violation
continues after having received the order
from the IAC or other such appropriate body,
notifying and penalizing the company for the
infraction.

For purposes of determining whether or not


there is "repeated" violation, each product
violation belonging or owned by a company,
including those of their subsidiaries, are
deemed to be violations of the concerned
milk company and shall not be based on the
specific violating product alone.

9. The RIRR provides for repeal of existing laws to the contrary.


The Court shall resolve the merits of the allegations of petitioner seriatim.

1. Petitioner is mistaken in its claim that the Milk Code's coverage is limited only to children 0-
12 months old. Section 3 of the Milk Code states:

SECTION 3. Scope of the Code The Code applies to the marketing, and practices
related thereto, of the following products: breastmilk substitutes, including infant
formula; other milk products, foods and beverages, including bottle-fed complementary
foods, when marketed or otherwise represented to be suitable, with or without
modification, for use as a partial or total replacement of breastmilk; feeding bottles and
teats. It also applies to their quality and availability, and to information concerning their
use.

Clearly, the coverage of the Milk Code is not dependent on the age of the child but on the kind
of product being marketed to the public. The law treats infant formula, bottle-fed
complementary food, and breastmilk substitute as separate and distinct product categories.

Section 4(h) of the Milk Code defines infant formula as "a breastmilk substitute x x x to satisfy
the normal nutritional requirements of infants up to between four to six months of age, and
adapted to their physiological characteristics"; while under Section 4(b), bottle-fed
complementary food refers to "any food, whether manufactured or locally prepared, suitable as a
complement to breastmilk or infant formula, when either becomes insufficient to satisfy the
nutritional requirements of the infant." An infant under Section 4(e) is a person falling within the
age bracket 0-12 months. It is the nourishment of this group of infants or children aged 0-12
months that is sought to be promoted and protected by the Milk Code.

But there is another target group. Breastmilk substitute is defined under Section 4(a) as "any food
being marketed or otherwise presented as a partial or total replacement for breastmilk, whether
or not suitable for that purpose." This section conspicuously lacks reference to any particular
age-group of children. Hence, the provision of the Milk Code cannot be considered
exclusive for children aged 0-12 months. In other words, breastmilk substitutes may also be
intended for young children more than 12 months of age. Therefore, by regulating breastmilk
substitutes, the Milk Code also intends to protect and promote the nourishment of children more
than 12 months old.

Evidently, as long as what is being marketed falls within the scope of the Milk Code as provided
in Section 3, then it can be subject to regulation pursuant to said law, even if the product is to be
used by children aged over 12 months.

There is, therefore, nothing objectionable with Sections 242 and 5(ff)43 of the RIRR.

2. It is also incorrect for petitioner to say that the RIRR, unlike the Milk Code, does not
recognize that breastmilk substitutes may be a proper and possible substitute for breastmilk.

The entirety of the RIRR, not merely truncated portions thereof, must be considered and
construed together. As held in De Luna v. Pascual,44 "[t]he particular words, clauses and phrases
in the Rule should not be studied as detached and isolated expressions, but the whole and every
part thereof must be considered in fixing the meaning of any of its parts and in order to produce a
harmonious whole."

Section 7 of the RIRR provides that "when medically indicated and only when necessary, the use
of breastmilk substitutes is proper if based on complete and updated information." Section 8 of
the RIRR also states that information and educational materials should include information on
the proper use of infant formula when the use thereof is needed.

Hence, the RIRR, just like the Milk Code, also recognizes that in certain cases, the use of
breastmilk substitutes may be proper.

3. The Court shall ascertain the merits of allegations 345 and 446 together as they are interlinked
with each other.

To resolve the question of whether the labeling requirements and advertising regulations under
the RIRR are valid, it is important to deal first with the nature, purpose, and depth of the
regulatory powers of the DOH, as defined in general under the 1987 Administrative Code,47 and
as delegated in particular under the Milk Code.

Health is a legitimate subject matter for regulation by the DOH (and certain other administrative
agencies) in exercise of police powers delegated to it. The sheer span of jurisprudence on that
matter precludes the need to further discuss it..48 However, health information, particularly
advertising materials on apparently non-toxic products like breastmilk substitutes and
supplements, is a relatively new area for regulation by the DOH.49

As early as the 1917 Revised Administrative Code of the Philippine Islands,50 health information
was already within the ambit of the regulatory powers of the predecessor of DOH.51 Section 938
thereof charged it with the duty to protect the health of the people, and vested it with such
powers as "(g) the dissemination of hygienic information among the people and especially the
inculcation of knowledge as to the proper care of infants and the methods of preventing and
combating dangerous communicable diseases."

Seventy years later, the 1987 Administrative Code tasked respondent DOH to carry out the state
policy pronounced under Section 15, Article II of the 1987 Constitution, which is "to protect and
promote the right to health of the people and instill health consciousness among them."52 To that
end, it was granted under Section 3 of the Administrative Code the power to "(6) propagate
health information and educate the population on important health, medical and environmental
matters which have health implications."53

When it comes to information regarding nutrition of infants and young children, however, the
Milk Code specifically delegated to the Ministry of Health (hereinafter referred to as DOH) the
power to ensure that there is adequate, consistent and objective information on breastfeeding and
use of breastmilk substitutes, supplements and related products; and the power to control such
information. These are expressly provided for in Sections 12 and 5(a), to wit:
SECTION 12. Implementation and Monitoring

xxxx

(b) The Ministry of Health shall be principally responsible for the implementation and
enforcement of the provisions of this Code. For this purpose, the Ministry of Health shall
have the following powers and functions:

(1) To promulgate such rules and regulations as are necessary or proper for the
implementation of this Code and the accomplishment of its purposes and
objectives.

xxxx

(4) To exercise such other powers and functions as may be necessary for or
incidental to the attainment of the purposes and objectives of this Code.

SECTION 5. Information and Education

(a) The government shall ensure that objective and consistent information is provided
on infant feeding, for use by families and those involved in the field of infant nutrition.
This responsibility shall cover the planning, provision, design and dissemination of
information, and the control thereof, on infant nutrition. (Emphasis supplied)

Further, DOH is authorized by the Milk Code to control the content of any information on
breastmilk vis--vis breastmilk substitutes, supplement and related products, in the following
manner:

SECTION 5. x x x

(b) Informational and educational materials, whether written, audio, or visual, dealing
with the feeding of infants and intended to reach pregnant women and mothers of infants,
shall include clear information on all the following points: (1) the benefits and superiority
of breastfeeding; (2) maternal nutrition, and the preparation for and maintenance of
breastfeeding; (3) the negative effect on breastfeeding of introducing partial
bottlefeeding; (4) the difficulty of reversing the decision not to breastfeed; and (5) where
needed, the proper use of infant formula, whether manufactured industrially or home-
prepared. When such materials contain information about the use of infant formula,
they shall include the social and financial implications of its use; the health hazards of
inappropriate foods or feeding methods; and, in particular, the health hazards of
unnecessary or improper use of infant formula and other breastmilk substitutes. Such
materials shall not use any picture or text which may idealize the use of breastmilk
substitutes.

SECTION 8. Health Workers


xxxx

(b) Information provided by manufacturers and distributors to health professionals


regarding products within the scope of this Code shall be restricted to scientific and
factual matters, and such information shall not imply or create a belief that
bottlefeeding is equivalent or superior to breastfeeding. It shall also include the
information specified in Section 5(b).

SECTION 10. Containers/Label

(a) Containers and/or labels shall be designed to provide the necessary information about
the appropriate use of the products, and in such a way as not to discourage
breastfeeding.

xxxx

(d) The term "humanized," "maternalized" or similar terms shall not be used. (Emphasis
supplied)

The DOH is also authorized to control the purpose of the information and to whom such
information may be disseminated under Sections 6 through 9 of the Milk Code54 to ensure that
the information that would reach pregnant women, mothers of infants, and health professionals
and workers in the health care system is restricted to scientific and factual matters and shall not
imply or create a belief that bottlefeeding is equivalent or superior to breastfeeding.

It bears emphasis, however, that the DOH's power under the Milk Code to control information
regarding breastmilk vis-a-vis breastmilk substitutes is not absolute as the power to control does
not encompass the power to absolutely prohibit the advertising, marketing, and promotion of
breastmilk substitutes.

The following are the provisions of the Milk Code that unequivocally indicate that the control
over information given to the DOH is not absolute and that absolute prohibition is not
contemplated by the Code:

a) Section 2 which requires adequate information and appropriate marketing and


distribution of breastmilk substitutes, to wit:

SECTION 2. Aim of the Code The aim of the Code is to contribute to the
provision of safe and adequate nutrition for infants by the protection and
promotion of breastfeeding and by ensuring the proper use of breastmilk
substitutes and breastmilk supplements when these are necessary, on the basis of
adequate information and through appropriate marketing and distribution.

b) Section 3 which specifically states that the Code applies to the marketing of and
practices related to breastmilk substitutes, including infant formula, and to information
concerning their use;
c) Section 5(a) which provides that the government shall ensure that objective and
consistent information is provided on infant feeding;

d) Section 5(b) which provides that written, audio or visual informational and educational
materials shall not use any picture or text which may idealize the use of breastmilk
substitutes and should include information on the health hazards of unnecessary or
improper use of said product;

e) Section 6(a) in relation to Section 12(a) which creates and empowers the IAC to
review and examine advertising, promotion, and other marketing materials;

f) Section 8(b) which states that milk companies may provide information to health
professionals but such information should be restricted to factual and scientific matters
and shall not imply or create a belief that bottlefeeding is equivalent or superior to
breastfeeding; and

g) Section 10 which provides that containers or labels should not contain information that
would discourage breastfeeding and idealize the use of infant formula.

It is in this context that the Court now examines the assailed provisions of the RIRR regarding
labeling and advertising.

Sections 1355 on "total effect" and 2656 of Rule VII of the RIRR contain some labeling
requirements, specifically: a) that there be a statement that there is no substitute to breastmilk;
and b) that there be a statement that powdered infant formula may contain pathogenic
microorganisms and must be prepared and used appropriately. Section 1657 of the RIRR prohibits
all health and nutrition claims for products within the scope of the Milk Code, such as claims of
increased emotional and intellectual abilities of the infant and young child.

These requirements and limitations are consistent with the provisions of Section 8 of the Milk
Code, to wit:

SECTION 8. Health workers -

xxxx

(b) Information provided by manufacturers and distributors to health professionals


regarding products within the scope of this Code shall be restricted to scientific and
factual matters, and such information shall not imply or create a belief that
bottlefeeding is equivalent or superior to breastfeeding. It shall also include the
information specified in Section 5.58 (Emphasis supplied)

and Section 10(d)59 which bars the use on containers and labels of the terms "humanized,"
"maternalized," or similar terms.
These provisions of the Milk Code expressly forbid information that would imply or create a
belief that there is any milk product equivalent to breastmilk or which is humanized or
maternalized, as such information would be inconsistent with the superiority of breastfeeding.

It may be argued that Section 8 of the Milk Code refers only to information given to health
workers regarding breastmilk substitutes, not to containers and labels thereof. However, such
restrictive application of Section 8(b) will result in the absurd situation in which milk companies
and distributors are forbidden to claim to health workers that their products are substitutes or
equivalents of breastmilk, and yet be allowed to display on the containers and labels of their
products the exact opposite message. That askewed interpretation of the Milk Code is precisely
what Section 5(a) thereof seeks to avoid by mandating that all information regarding breastmilk
vis-a-vis breastmilk substitutes be consistent, at the same time giving the government control
over planning, provision, design, and dissemination of information on infant feeding.

Thus, Section 26(c) of the RIRR which requires containers and labels