1

EN BANC Respondents.
x--------------------------------------------x
THE PROVINCE OF NORTH COTABATO, duly G.R. No. 183591 THE CITY OF ILIGAN, duly represented by
represented by GOVERNOR JESUS Present: CITY MAYOR LAWRENCE LLUCH CRUZ,
SACDALAN and/or VICE-GOVERNOR Petitioner,
EMMANUEL PIOL, for and in his own behalf, PUNO, C.J.,
Petitioners, QUISUMBING,
YNARES-SANTIAGO, - versus
- versus - CARPIO,
AUSTRIA-MARTINEZ,
CORONA, THE GOVERNMENT OF THE REPUBLIC OF
THE GOVERNMENT OF THE REPUBLIC OF CARPIO MORALES, THE PHILIPPINES PEACE PANEL ON
THE PHILIPPINES PEACE PANEL ON AZCUNA, ANCESTRAL DOMAIN (GRP), represented by
ANCESTRAL DOMAIN (GRP), represented by TINGA, SEC. RODOLFO GARCIA, ATTY. LEAH
SEC. RODOLFO GARCIA, ATTY. LEAH CHICO-NAZARIO, ARMAMENTO, ATTY. SEDFREY
ARMAMENTO, ATTY. SEDFREY VELASCO, JR., CANDELARIA, MARK RYAN SULLIVAN; GEN. G.R. No. 183893
CANDELARIA, MARK RYAN SULLIVAN and/or NACHURA, HERMOGENES ESPERON, JR., in his capacity
GEN. HERMOGENES ESPERON, JR., the latter REYES, as the present and duly appointed Presidential
in his capacity as the present and duly- LEONARDO-DE CASTRO, &Adviser on the Peace Process; and/or SEC.
appointed Presidential Adviser on the Peace BRION, JJ. EDUARDO ERMITA, in his capacity as
Process (OPAPP) or the so-called Office of the Promulgated: Executive Secretary.
Presidential Adviser on the Peace Process, Respondents.
Respondents. October 14, 2008 x--------------------------------------------x
x--------------------------------------------x THE PROVINCIAL GOVERNMENT OF
CITY GOVERNMENT OF ZAMBOANGA, as ZAMBOANGA DEL NORTE, as represented by
represented by HON. CELSO L. LOBREGAT, HON. ROLANDO E. YEBES, in his capacity as
City Mayor of Zamboanga, and in his personal Provincial Governor, HON. FRANCIS H. OLVIS,
capacity as resident of the City of Zamboanga, in his capacity as Vice-Governor and Presiding
Rep. MA. ISABELLE G. CLIMACO, District 1, Officer of the Sangguniang
and Rep. ERICO BASILIO A. FABIAN, District Panlalawigan, HON. CECILIA JALOSJOS
2, City of Zamboanga, G.R. No. 183752 CARREON, Congresswoman,
Petitioners, 1st Congressional District, HON. CESAR G.
JALOSJOS, Congressman, 3rdCongressional
District, and Members of the Sangguniang
- versus - Panlalawigan of the Province of Zamboanga
del Norte, namely, HON. SETH FREDERICK P.
JALOSJOS, HON. FERNANDO R. CABIGON,
THE GOVERNMENT OF THE REPUBLIC OF JR., HON. ULDARICO M. MEJORADA II, HON.
THE PHILIPPINES PEACE NEGOTIATING EDIONAR M. ZAMORAS, HON. EDGAR J.
PANEL (GRP), as represented by RODOLFO C. BAGUIO, HON. CEDRIC L. ADRIATICO,
GARCIA, LEAH ARMAMENTO, SEDFREY HON. FELIXBERTO C. BOLANDO, HON.
CANDELARIA, MARK RYAN SULLIVAN and JOSEPH BRENDO C. AJERO, HON. G.R. No. 183951
HERMOGENES ESPERON, in his capacity as NORBIDEIRI B. EDDING, HON. ANECITO S.
the Presidential Adviser on Peace Process,

DARUNDAY, HON. ANGELICA J. CARREON
and HON. LUZVIMINDA E. TORRINO,
Petitioners,
- versus -
THE GOVERNMENT OF THE REPUBLIC OF
THE PHILIPPINES PEACE NEGOTIATING
PANEL [GRP], as represented by HON.
RODOLFO C. GARCIA
HERMOGENES ESPERON, in his capacity as
the Presidential Adviser of Peace Process,
x--------------------------------------------x
ERNESTO M. MACEDA, JEJOMAR C. BINAY,
and AQUILINO L. PIMENTEL III,
- versus -
THE GOVERNMENT OF THE REPUBLIC OF
THE PHILIPPINES PEACE NEGOTIATING
PANEL, represented by its Chairman
RODOLFO C. GARCIA, and the MORO
ISLAMIC LIBERATION FRONT
NEGOTIATING PANEL, represented by its
Chairman MOHAGHER IQBAL,
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
2
THE CITY OF ISABELA, BASILANPROVINCE,
represented by MAYOR CHERRYLYN P. G.R. No. 183962
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
and HON.
RUY ELIAS LOPEZ, for and in his own behalf
and on behalf of Indigenous Peoples in
Respondents. Mindanao Not Belonging to the MILF,
Petitioner-in-Intervention.
x--------------------------------------------x
CARLO B. GOMEZ, GERARDO S. DILIG,
Petitioners, 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,
PEACE INC (MUSLAF),
Respondent-in-Intervention.
x--------------------------------------------x
Respondents. MUSLIM MULTI-SECTORAL MOVEMENT FOR
PEACE & DEVELOPMENT (MMMPD),
Respondent-in-Intervention.
x--------------------------------------------x
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
DECISION
CARPIO MORALES, J.:

Subject of these consolidated cases is the extent of the powers of the
President in pursuing the peace process. While the facts surrounding this
controversy center on the armed conflict in Mindanao between the
government and the Moro Islamic Liberation Front (MILF), the legal issue
involved has a bearing on all areas in the country where there has been a long-
standing armed conflict. Yet again, the Court is tasked to perform a delicate
balancing act. It must uncompromisingly delineate the bounds within which the
President may lawfully exercise her discretion, but it must do so in strict
adherence to the Constitution, lest its ruling unduly restricts the freedom of
action vested by that same Constitution in the Chief Executive precisely to
enable her to pursue the peace process effectively.
I. FACTUAL ANTECEDENTS OF THE PETITIONS
On August 5, 2008, the Government of the Republic of the Philippines (GRP)
and the MILF, through the Chairpersons of their respective peace negotiating
panels, were scheduled to sign a Memorandum of Agreement on the Ancestral
Domain (MOA-AD) Aspect of the GRP-MILF Tripoli Agreement on Peace of
2001 in Kuala Lumpur, Malaysia.
The MILF is a rebel group which was established in March 1984 when, under
the leadership of the late Salamat Hashim, it splintered from the Moro National
Liberation Front (MNLF) then headed by Nur Misuari, on the ground, among
others, of what Salamat perceived to be the manipulation of the MNLF away
from an Islamic basis towards Marxist-Maoist orientations.[1]
The signing of the MOA-AD between the GRP and the MILF was not to
materialize, however, for upon motion of petitioners, specifically those who
filed their cases before the scheduled signing of the MOA-AD, this Court
3
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
DomainAspect. With regard to the Ancestral Domain Aspect, the parties in
Tripoli Agreement 2001 simply agreed that the same be discussed further by
the Parties in their next meeting.
A second round of peace talks was held in Cyberjaya, Malaysia on August 5-
7, 2001 which ended with the signing of the Implementing Guidelines on the
Security Aspect of the Tripoli Agreement 2001 leading to a ceasefire status
between the parties. This was followed by the Implementing Guidelines on the
Humanitarian Rehabilitation and Development Aspects of the Tripoli
Agreement 2001, which was signed on May 7,
2002 at Putrajaya, Malaysia. Nonetheless, there were many incidence of
violence between government forces and the MILF from 2002 to 2003.
4
Meanwhile, then MILF Chairman Salamat Hashim passed away on July 13,
2003 and he was replaced by Al Haj Murad, who was then the chief peace
negotiator of the MILF.Murads position as chief peace negotiator was taken
over by Mohagher Iqbal.[6]
In 2005, several exploratory talks were held between the parties in Kuala
Lumpur, eventually leading to the crafting of the draft MOA-AD in its final form,
which, as mentioned, was set to be signed last August 5, 2008.
II. STATEMENT OF THE PROCEEDINGS
Before the Court is what is perhaps the most contentious consensus ever
embodied in an instrument the MOA-AD which is assailed principally by the
present petitions bearing docket numbers 183591, 183752, 183893, 183951
and 183962.
Commonly impleaded as respondents are the GRP Peace Panel on Ancestral
Domain[7] and the Presidential Adviser on the Peace Process (PAPP)
Hermogenes Esperon, Jr.
On July 23, 2008, the Province of North Cotabato[8] and Vice-
Governor Emmanuel Piol filed a petition, docketed as G.R. No. 183591, for
Mandamus and Prohibition with Prayer for the Issuance of Writ of Preliminary
Injunction and Temporary Restraining Order.[9] Invoking the right to information
on matters of public concern, petitioners seek to compel respondents to
disclose and furnish them the complete and official copies of the MOA-AD
including its attachments, and to prohibit the slated signing of the MOA-AD,
 5

pending the disclosure of the contents of the MOA-AD and the holding of a Zamboanga del Norte filed on August 15, 2008 a petition for Certiorari,
public consultation thereon. Supplementarily, petitioners pray that the MOA- Mandamus and Prohibition,[19] docketed as G.R. No. 183951. They pray, inter
AD be declared unconstitutional.[10] alia, that the MOA-AD be declared null and void and without operative effect,
and that respondents be enjoined from executing the MOA-AD.
This initial petition was followed by another one, docketed as G.R. No.
183752, also for Mandamus and Prohibition[11] filed by the City On August 19, 2008, Ernesto Maceda, Jejomar Binay, and Aquilino
of Zamboanga,[12] Mayor Celso Lobregat, Rep. Ma. Isabelle Climaco and Rep. Pimentel III filed a petition for Prohibition,[20] docketed as G.R. No.
Erico Basilio Fabian who likewise pray for similar injunctive reliefs. Petitioners 183962, praying for a judgment prohibiting and permanently enjoining
herein moreover pray that the City of Zamboangabe excluded from the respondents from formally signing and executing the MOA-AD and or any
Bangsamoro Homeland and/or Bangsamoro Juridical Entity and, in the other agreement derived therefrom or similar thereto, and nullifying the MOA-
alternative, that the MOA-AD be declared null and void. AD for being unconstitutional and illegal. Petitioners herein additionally
implead as respondent the MILF Peace Negotiating Panel represented by its
By Resolution of August 4, 2008, the Court issued a Temporary Chairman Mohagher Iqbal.
Restraining Order commanding and directing public respondents and their Various parties moved to intervene and were granted leave of court to
agents to cease and desist from formally signing the MOA-AD.[13] The Court file their petitions-/comments-in-intervention. Petitioners-in-Intervention
also required the Solicitor General to submit to the Court and petitioners the include Senator Manuel A. Roxas, former Senate President Franklin Drilon
official copy of the final draft of the MOA-AD,[14] to which she complied.[15] and Atty. Adel Tamano, the City of Isabela[21] and Mayor Cherrylyn Santos-
Akbar, the Province of Sultan Kudarat[22] and Gov. Suharto Mangudadatu, the
Meanwhile, the City of Iligan[16] filed a petition for Injunction and/or Municipality of Linamon in Lanao del Norte,[23] Ruy Elias Lopez of Davao City
Declaratory Relief, docketed as G.R. No. 183893, praying that respondents be and of the Bagobo tribe, Sangguniang Panlungsod member Marino Ridao and
enjoined from signing the MOA-AD or, if the same had already been signed, businessman Kisin Buxani, both of Cotabato City; and lawyers Carlo Gomez,
from implementing the same, and that the MOA-AD be declared Gerardo Dilig, Nesario Awat, Joselito Alisuag, Richalex Jagmis, all of Palawan
unconstitutional. Petitioners herein additionally implead Executive Secretary City. The Muslim Legal Assistance Foundation, Inc. (Muslaf) and the Muslim
Eduardo Ermita as respondent. Multi-Sectoral Movement for Peace and Development (MMMPD) filed their
respective Comments-in-Intervention.
The Province of Zamboanga del Norte,[17] Governor Rolando Yebes,
Vice-Governor Francis Olvis, Rep. Cecilia Jalosjos-Carreon, Rep. Cesar
Jalosjos, and the members[18] of the Sangguniang Panlalawigan of

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 peoples 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
6
(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-muahada (or
7
territory under compact) and dar-ul-sulh (or territory under peace agreement)
that partakes the nature of a treaty device.
During the height of the Muslim Empire, early Muslim jurists tended to see the
world through a simple dichotomy: there was the dar-ul-Islam (the Abode
of Islam) and dar-ul-harb (the Abode of War). The first referred to those lands
where Islamic laws held sway, while the second denoted those lands where
Muslims were persecuted or where Muslim laws were outlawed or
ineffective.[27] This way of viewing the world, however, became more complex
through the centuries as the Islamic world became part of the international
community of nations.
As Muslim States entered into treaties with their neighbors, even with distant
States and inter-governmental organizations, the classical division of the world
into dar-ul-Islamand dar-ul-harb eventually lost its meaning. New terms were
drawn up to describe novel ways of perceiving non-Muslim territories. For
instance, areas like dar-ul-muahada(land of compact) and dar-ul-sulh (land
of treaty) referred to countries which, though under a secular regime,
maintained peaceful and cooperative relations with Muslim States, having
been bound to each other by treaty or agreement. Dar-ul-aman (land of order),
on the other hand, referred to countries which, though not bound by treaty with
Muslim States, maintained freedom of religion for Muslims.[28]
It thus appears that the compact rights entrenchment emanating from the
regime of dar-ul-muahada and dar-ul-sulh simply refers to all other
agreements between the MILF and the Philippine government the Philippines
being the land of compact and peace agreement that partake of the nature of
a treaty device, treaty being broadly defined as any solemn agreement in
 8

writing that sets out understandings, obligations, and benefits for both parties The MOA-AD proceeds to refer to the Bangsamoro homeland, the ownership
which provides for a framework that elaborates the principles declared in the of which is vested exclusively in the Bangsamoro people by virtue of
[MOA-AD].[29] 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 MOA-AD states that the Parties HAVE AGREED AND ACKNOWLEDGED
AS FOLLOWS, and starts with its main body. The Bangsamoro people are acknowledged as having the right to self-
governance, which right is said to be rooted on ancestral territoriality exercised
The main body of the
MOA-AD is divided into originally under the suzerain authority of their sultanates and the Pat a
four strands, namely, Pangampong ku Ranaw. The sultanates were described as states
Concepts and Principles,
Territory, Resources, and or karajaan/kadatuan resembling a body politic endowed with all the elements
Governance. of a nation-state in the modern sense.[34]

A. CONCEPTS AND PRINCIPLES 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
This strand begins with the statement that it is the birthright of all Moros and
territory defined as the Bangsamoro homeland was ruled by several sultanates
all Indigenous peoples of Mindanao to identify themselves and be accepted as
and, specifically in the case of the Maranao, by the Pat a Pangampong ku
Bangsamoros. It defines Bangsamoro people as the natives or original
Ranaw, a confederation of independent principalities (pangampong) each
inhabitants of Mindanao and its adjacent islands including Palawan and the
ruled by datus and sultans, none of whom was supreme over the others. [35]
Sulu archipelago at the time of conquest or colonization, and their
descendants whether mixed or of full blood, including their spouses.[30]
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
Thus, the concept of Bangsamoro, as defined in this strand of the MOA-AD,
into treaties of amity and commerce with foreign nations.
includes not only Moros as traditionally understood even by Muslims,[31] but
The term First Nation is of Canadian origin referring to the indigenous peoples
all indigenous peoplesof Mindanao and its adjacent islands. The MOA-AD
of that territory, particularly those known as Indians. In Canada, each of these
adds that the freedom of choice of indigenous peoples shall be
indigenous peoples is equally entitled to be called First Nation, hence, all of
respected. What this freedom of choice consists in has not been specifically
them are usually described collectively by the plural First Nations. [36] To that
defined.
extent, the MOA-AD, by identifying the Bangsamoro people as the First Nation
 9

suggesting its exclusive entitlement to that designation departs from the plebiscite twenty-five (25) years from the signing of a separate agreement the
Canadian usage of the term. Comprehensive Compact.[41]

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 AncestralLands 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]
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

More specifically, the core of the BJE is defined as the present geographic
the territorial waters between the Central Government and the BJE, in favor of
area of the ARMM thus constituting the following areas: Lanao del Sur,
the latter, through production sharing and economic cooperation
Maguindanao, Sulu, Tawi-Tawi, Basilan, and Marawi City. Significantly, this
agreement.[44] The activities which the Parties are allowed to conduct on
core also includes certain municipalities of Lanao del Norte that voted for
the territorial waters are enumerated, among which are the exploration and
inclusion in the ARMM in the 2001 plebiscite.[39]
utilization of natural resources, regulation of shipping and fishing activities, and
the enforcement of police and safety measures.[45] There is no similar provision
Outside of this core, the BJE is to cover other provinces, cities,
on the sharing of minerals and allowed activities with respect to
municipalities and barangays, which are grouped into two categories,
the internal waters of the BJE.
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, C. RESOURCES
Category A areas are to be subjected to a plebiscite not later than twelve (12)
The MOA-AD states that the BJE is free to enter into any economic
months following the signing of the MOA-AD.[40] Category B areas, also called
cooperation and trade relations with foreign countries and shall have the option
Special Intervention Areas, on the other hand, are to be subjected to a
to establish trade missions in those countries. Such relationships and

understandings, however, are not to include aggression against the GRP. The
BJE may also enter into environmental cooperation agreements.[46]
The external defense of the BJE is to remain the duty and obligation of the
Central Government. The Central Government is also bound to take
necessary steps to ensure the BJEs participation in international meetings and
events like those of the ASEAN and the specialized agencies of the UN. The
BJE is to be entitled to participate in Philippine official missions and
delegations for the negotiation of border agreements or protocols for
environmental protection and equitable sharing of incomes and revenues
involving the bodies of water adjacent to or between the islands forming part
of the ancestral domain.[47]
With regard to the right of exploring for, producing, and obtaining all potential
sources of energy, petroleum, fossil fuel, mineral oil and natural gas, the
jurisdiction and control thereon is to be vested in the BJE as the party having
control within its territorial jurisdiction. This right carries the proviso that, in
times of national emergency, when public interest so requires, the Central
Government may, for a fixed period and under reasonable terms as may be
agreed upon by both Parties, assume or direct the operation of such
resources.[48]
The sharing between the Central Government and the BJE of total production
pertaining to natural resources is to be 75:25 in favor of the BJE.[49]
The MOA-AD provides that legitimate grievances of the Bangsamoro people
arising from any unjust dispossession of their territorial and proprietary rights,
customary land tenures, or their marginalization shall
10
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.
be
 11

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.
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

The BJE is granted the power to build, develop and maintain its own A. RIPENESS
institutions inclusive of civil service, electoral, financial and banking, education,
legislation, legal, economic, police and internal security force, judicial system The power of judicial review is limited to actual cases or
and correctional institutions, the details of which shall be discussed in the controversies.[54] Courts decline to issue advisory opinions or to resolve
negotiation of the comprehensive compact. hypothetical or feigned problems, or mere academic questions.[55] The
limitation of the power of judicial review to actual cases and
As stated early on, the MOA-AD was set to be signed on August 5, 2008 by
controversies defines the role assigned to the judiciary in a tripartite allocation
Rodolfo Garcia and Mohagher Iqbal, Chairpersons of the Peace Negotiating
of power, to assure that the courts will not intrude into areas committed to the
Panels of the GRP and the MILF, respectively. Notably, the penultimate
other branches of government.[56]
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
An actual case or controversy involves a conflict of legal rights, an
negotiating panels.[53] In addition, the signature page of the MOA-AD states
assertion of opposite legal claims, susceptible of judicial resolution as
that it is WITNESSED BY Datuk Othman Bin Abd Razak, Special Adviser to
distinguished from a hypothetical or abstract difference or dispute. There must
the Prime Minister of Malaysia, ENDORSED BY Ambassador Sayed Elmasry,
be a contrariety of legal rights that can be interpreted and enforced on the
Adviser to Organization of the Islamic Conference (OIC) Secretary General
basis of existing law and jurisprudence.[57] The Court can decide the
and Special Envoy for Peace Process in Southern Philippines, and SIGNED
constitutionality of an act or treaty only when a proper case between opposing
IN THE PRESENCE OF Dr. Albert G. Romulo, Secretary of Foreign Affairs of
parties is submitted for judicial determination.[58]
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,
Related to the requirement of an actual case or controversy is the
2008.
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
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 cites[63] the following provisions of the MOA-AD:
TERRITORY
12
xxxx
2. Toward this end, the Parties enter into the following
stipulations:
xxxx
d. Without derogating from the requirements
of. [62] 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
 13

Comprehensive Compact.[64] (Underscoring

supplied) January 1, 1996, because the parties agreed that New York had to take
immediate action to avoid the provision's consequences.[70]

The Solicitor Generals arguments fail to persuade. The present petitions pray for Certiorari,[71] Prohibition, and
Mandamus. Certiorari and Prohibition are remedies granted by law when any
Concrete acts under the MOA-AD are not necessary to render the tribunal, board or officer has acted, in the case of certiorari, or is proceeding,
present controversy ripe. In Pimentel, Jr. v. Aguirre,[65] this Court held: 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
x x x [B]y the mere enactment of the questioned law
or the approval of the challenged action, the dispute is said to is a remedy granted by law when any tribunal, corporation, board, officer or
have ripened into a judicial controversy even without any person unlawfully neglects the performance of an act which the law specifically
other overt act. Indeed, even a singular violation of the
Constitution and/or the law is enough to awaken judicial duty. 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
xxxx
other is entitled.[73] Certiorari, Mandamus and Prohibition are appropriate
By the same token, when an act of the President, who
remedies to raise constitutional issues and to review and/or prohibit/nullify,
in our constitutional scheme is a coequal of Congress, is
seriously alleged to have infringed the Constitution and the when proper, acts of legislative and executive officials.[74]
laws x x x settling the dispute becomes the duty and the
responsibility of the courts.[66]
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
In Santa Fe Independent School District v. Doe,[67] the United States
order requires that [t]he government's policy framework for peace, including
Supreme Court held that the challenge to the constitutionality of the schools
the systematic approach and the administrative structure for carrying out the
policy allowing student-led prayers and speeches before games was ripe for
comprehensive peace process x x x be governed by this Executive Order. [76]
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]
The present petitions allege that respondents GRP Panel and PAPP
Esperon drafted the terms of the MOA-AD without consulting the local
That the law or act in question is not yet effective does not negate
government units or communities affected, nor informing them of the
ripeness. For example, in New York v. United States,[69] decided in 1992, the
proceedings. As will be discussed in greater detail later, such omission, by
United States Supreme Court held that the action by the State of New York
itself, constitutes a departure by respondents from their mandate under E.O.
challenging the provisions of the Low-Level Radioactive Waste Policy Act was
No. 3.
ripe for adjudication even if the questioned provision was not to take effect until

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,
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]
14
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
in or that he is about to be subjected to some burdens or penalties by reason of
the statute or act complained of.[80] When the issue concerns a public right, it
is sufficient that the petitioner is a citizen and has an interest in the execution
of the laws.[81]
For a taxpayer, one is allowed to sue where there is an assertion that public
funds are illegally disbursed or deflected to an illegal purpose, or that there is
a wastage of public funds through the enforcement of an invalid or
unconstitutional law.[82] The Court retains discretion whether or not to allow a
taxpayers suit.[83]
In the case of a legislator or member of Congress, an act of the Executive that
injures the institution of Congress causes a derivative but nonetheless
substantial injury that can be questioned by legislators. A member of the
House of Representatives has standing to maintain inviolate the prerogatives,
powers and privileges vested by the Constitution in his office.[84]
An organization may be granted standing to assert the rights of its
members,[85] but the mere invocation by the Integrated Bar of
the Philippines or any member of the legal profession of the duty to preserve
the rule of law does not suffice to clothe it with standing.[86]

As regards a local government unit (LGU), it can seek relief in order to protect
or vindicate an interest of its own, and of the other LGUs.[87]
Intervenors, meanwhile, may be given legal standing upon showing of facts
that satisfy the requirements of the law authorizing intervention,[88] such as a
legal interest in the matter in litigation, or in the success of either of the parties.
In any case, the Court has discretion to relax the procedural technicality
on locus standi, given the liberal attitude it has exercised, highlighted in the
case of David v. Macapagal-Arroyo,[89] where technicalities of procedure were
brushed aside, the constitutional issues raised being of paramount public
interest or of transcendental importance deserving the attention of the Court
in view of their seriousness, novelty and weight as precedents.[90] The Courts
forbearing stance on locus standi on issues involving constitutional issues has
for its purpose the protection of fundamental rights.
In not a few cases, the Court, in keeping with its duty under the Constitution to
determine whether the other branches of government have kept themselves
within the limits of the Constitution and the laws and have not abused the
discretion given them, has brushed aside technical rules of procedure. [91]
In the petitions at bar, petitioners Province of North Cotabato (G.R. No.
183591) Province of Zamboanga del Norte (G.R. No. 183951), City of
Iligan (G.R. No. 183893) 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
15
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 publics 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]
16
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. Romulo[100] and Manalo v. Calderon[101] 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 Courts 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-goingand 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 countrys territory and the wide-
ranging political modifications of affected LGUs. The assertion that the MOA-
17
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 partiesthe 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
the Tripoli Agreement 2001, in another or in any form, which could contain
similar or significantly drastic provisions. While the Court notes the word of the
Executive Secretary that the government is committed to securing an
agreement that is both constitutional and equitable because that is the only
way that long-lasting peace can be assured, it is minded to render a decision
on the merits in the present petitions to formulate controlling principles to
guide the bench, the bar, the public and, most especially, the government
in negotiating with the MILF regarding Ancestral Domain.
Respondents invite the Courts attention to the separate opinion of then Chief
Justice Artemio Panganiban in Sanlakas v. Reyes[104] in which he stated
that the doctrine of capable of repetition yet evading review can override
mootness, provided the party raising it in a proper case has been and/or
continue to be prejudiced or damaged as a direct result of their issuance. They
contend that the Court must have jurisdiction over the subject matter for the
doctrine to be invoked.
18
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
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
19
information on matters of public concern since, undoubtedly, in a democracy,
the pubic has a legitimate interest in matters of social and political significance.
x x x The incorporation of this right in the Constitution is a
recognition of the fundamental role of free exchange of
information in a democracy. There can be no realistic
perception by the public of the nations problems, nor a
meaningful democratic decision-making if they are denied
access to information of general interest. Information is
needed to enable the members of society to cope with the
exigencies of the times. As has been aptly observed:
Maintaining the flow of such information depends on
protection for both its acquisition and its dissemination since,
if either process is interrupted, the flow inevitably ceases. x x
x[111]
In the same way that free discussion enables members of society to cope with
the exigencies of their time, access to information of general interest aids the
people in democratic decision-making by giving them a better perspective of
the vital issues confronting the nation[112] so that they may be able to criticize
and participate in the affairs of the government in a responsible, reasonable
and effective manner. It is by ensuring an unfettered and uninhibited exchange
of ideas among a well-informed public that a government remains responsive
to the changes desired by the people.[113]
The MOA-AD is a matter of
public concern
That the subject of the information sought in the present cases is a
matter of public concern[114] faces no serious challenge. In fact, respondents
admit that the MOA-AD is indeed of public concern.[115] In previous cases, the
Court found that the regularity of real estate transactions entered in the
Register of Deeds,[116] the need for adequate notice to the public of the various

laws,[117] the civil service eligibility of a public employee,[118] the proper
management of GSIS funds allegedly used to grant loans to public
officials,[119] the recovery of the Marcoses alleged ill-gotten wealth,[120]
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)
20
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
and 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 peoples 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
broader[130] right to information on matters of public concern is already
enforceable while the correlative duty of the State to disclose its transactions
involving public interest is not enforceable until there is an enabling
21
law. Respondents cannot thus point to the absence of an implementing
legislation as an excuse in not effecting such policy.
An essential element of these freedoms is to keep open a continuing dialogue
or process of communication between the government and the people. It is in
the interest of the State that the channels for free political discussion be
maintained to the end that the government may perceive and be responsive to
the peoples will.[131] Envisioned to 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)
 22

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 peoples 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 peoples participation in the peace process.[135]
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.

Clearly, E.O. No. 3 contemplates not just the conduct of

The Court may not, of course, require the PAPP to conduct the consultation in
a plebiscite to effectuate continuing consultations, contrary to
a particular way or manner. It may, however, require him to comply with the
respondents position that plebiscite is more than sufficient
law and discharge the functions within the authority granted by the
consultation.[136]
President.[139]

Further, E.O. No. 3 enumerates the functions and responsibilities of the PAPP,
Petitioners are not claiming a seat at the negotiating table, contrary to
one of which is to [c]onduct regular dialogues with the National Peace Forum
respondents retort in justifying the denial of petitioners right to be
(NPF) and other peace partners to seek relevant information, comments,
consulted. Respondents stance manifests the manner by which they treat the
recommendations as well as to render appropriate and timely reports on the
salient provisions of E.O. No. 3 on peoples participation. Such disregard of the
progress of the comprehensive peace process.[137] E.O. No. 3 mandates the
express mandate of the President is not much different from superficial
establishment of the NPF to be the principal forum for the PAPP to consult with

conduct toward token provisos that border on classic lip service.[140] It
illustrates a gross evasion of positive duty and a virtual refusal to perform the
duty enjoined.
As for respondents invocation of the doctrine of executive privilege, it is not
tenable under the premises. The argument defies sound reason when
contrasted with E.O. No. 3s explicit provisions on continuing consultation and
dialogue on both national and local levels. The executive order even
recognizes the exercise of the publics right even before the GRP makes
its official recommendations or before the government proffers its definite
propositions.[141] It bear emphasis that 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 Courts August 4,
2008 Resolution, without a prayer for the documents 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]
well-taken. The LGC chapter on intergovernmental relations puts flesh into this
avowed policy:
23
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
is
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.
 24

Notably, the IPRA does not grant the Executive Department or any made. The validity of this argument will be considered later. For now, the Court
government agency the power to delineate and recognize an ancestral domain shall pass upon how
claim by mere agreement or compromise. The recognition of the ancestral
The MOA-AD is
domain is the raison detre of the MOA-AD, without which all other stipulations inconsistent with the
or consensus points necessarily must fail. In proceeding to make a sweeping Constitution and laws as
presently worded.
declaration on ancestral domain, without complying with the IPRA, which is
cited as one of the TOR of the MOA-AD, respondents clearly transcended
In general, the objections against the MOA-AD center on the extent of the
the boundaries of their authority. As it seems, even the heart of the MOA-
powers conceded therein to the BJE. Petitioners assert that the powers
AD is still subject to necessary changes to the legal framework. While
granted to the BJE exceed those granted to any local government under
paragraph 7 on Governance suspends the effectivity of all provisions requiring
present laws, and even go beyond those of the present ARMM. Before
changes to the legal framework, such clause is itself invalid, as will be
assessing some of the specific powers that would have been vested in the
discussed in the following section.
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
Indeed, ours is an open society, with all the acts of the government subject to
international law concept of association. Significantly, the MOA-AD explicitly
public scrutiny and available always to public cognizance. This has to be so if
alludes to this concept, indicating that the Parties actually framed its provisions
the country is to remain democratic, with sovereignty residing in the people
with it in mind.
and all government authority emanating from them.[149]

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

ON THE SECOND SUBSTANTIVE ISSUE
RESOURCES, and paragraph 4 on GOVERNANCE. It is in the last mentioned
provision, however, that the MOA-AD most clearly uses it to describe
With regard to the provisions of the MOA-AD, there can be no question that
the envisioned relationship between the BJE and the Central Government.
they cannot all be accommodated under the present Constitution and
laws. Respondents have admitted as much in the oral arguments before this 4. The relationship between the Central Government and
Court, and the MOA-AD itself recognizes the need to amend the existing legal the Bangsamoro juridical entity shall be associative
characterized by shared authority and responsibility with
framework to render effective at least some of its provisions. Respondents, a structure of governance based on executive, legislative,
nonetheless, counter that the MOA-AD is free of any legal infirmity because judicial and administrative institutions with defined powers
and functions in the comprehensive compact. A period of
any provisions therein which are inconsistent with the present legal framework transition shall be established in a comprehensive peace
will not be effective until the necessary changes to that framework are 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
x[150] (Emphasis and underscoring supplied)
For purposes of illustration, the Republic of the Marshall Islands and the
Federated States of Micronesia (FSM), formerly part of the U.S.-administered
Trust Territory of the Pacific Islands,[151] are associated states of the U.S.
pursuant to a Compact of Free Association. The currency in these countries is
the U.S. dollar, indicating their very close ties with the U.S., yet they issue their
own travel documents, which is a mark of their statehood. Their international
legal status as states was confirmed by the UN Security Council and by their
admission to UN membership.
25
According to their compacts of free association, the Marshall Islands and
the FSM generally have the capacity to conduct foreign affairs in their own
name and right, such capacity extending to matters such as the law of the sea,
marine resources, trade, banking, postal, civil aviation, and cultural
relations. The U.S. government, when conducting its foreign affairs, is
obligated to consult with the governments of the Marshall Islands or the FSM
on matters which it (U.S. government) regards as relating to or affecting either
government.
In the event of attacks or threats against the Marshall Islands or the FSM, the
U.S. government has the authority and obligation to defend them as if they
were part of U.S. territory. The U.S. government, moreover, has the option of
establishing and using military areas and facilities within these associated
states and has the right to bar the military personnel of any third country from
having access to these territories for military purposes.
It bears noting that in U.S. constitutional and international practice, free
association is understood as an international association between
sovereigns. The Compact of Free Association is a treaty which is subordinate
to the associated nations national constitution, and each party may terminate
the association consistent with the right of independence.It has been said
that, with the admission of the U.S.-associated states to the UN in 1990, the
UN recognized that the 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
BJEs capacity to enter into economic and trade relations with foreign countries,
the commitment of the Central Government to ensure the BJEs 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 BJEs 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 reco
gnized 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
26
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-ADs provisions, therefore,
already requires for its validity the amendment of constitutional provisions,
specifically the following provisions of Article X:
SECTION 1. The territorial and political subdivisions of the
Republic of the Philippines are the provinces, cities,
municipalities, and barangays. There shall
be autonomous regions in Muslim Mindanao and
the Cordilleras as hereinafter provided.
SECTION 15. There shall be created autonomous regions in
Muslim Mindanao and in the Cordilleras consisting of
provinces, cities, municipalities, and geographical areas
sharing common and distinctive historical and cultural
heritage, economic and social structures, and other relevant
characteristics within the framework of this Constitution
and the national sovereignty as well as territorial integrity
of the Republic of the Philippines.
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
27
overview. That the present components of the ARMM and the above-
mentioned municipalities voted for inclusion therein in 2001, however,
does not render another plebiscite unnecessary under the Constitution,
precisely because what these areas voted for then was their inclusion in the
ARMM, not the BJE.
The MOA-AD, moreover, would not
comply with Article X, Section 20 of
the Constitution
since that provision defines the powers of autonomous regions as follows:
SECTION 20. Within its territorial jurisdiction and subject to
the provisions of this Constitution and national laws, the
organic act of autonomous regions shall provide for legislative
powers over:
(1) Administrative organization;
(2) Creation of sources of revenues;
(3) Ancestral domain and natural resources;
(4) Personal, family, and property relations;
(5) Regional urban and rural planning development;
(6) Economic, social, and tourism development;
(7) Educational policies;
(8) Preservation and development of the cultural heritage; and
(9) Such other matters as may be authorized by law for the
promotion of the general welfare of the people of the
region. (Underscoring supplied)
Again on the premise that the BJE may be regarded as an autonomous region,
the MOA-AD would require an amendment that would expand the above-
quoted provision. The mere passage of new legislation pursuant to sub-
paragraph No. 9 of said constitutional provision would not suffice, since any
new law that might vest in the BJE the powers found in the MOA-AD must,

itself, comply with other provisions of the Constitution. It would not do, for
instance, to merely pass legislation vesting the BJE with treaty-making power
in order to accommodate paragraph 4 of the strand on RESOURCES which
states: The BJE is free to enter into any economic cooperation and trade
relations with foreign countries: provided, however, that such relationships and
understandings do not include aggression against the Government of the
Republic of the Philippines x x x. Under our constitutional system, it is only the
President who has that power. Pimentel v. Executive Secretary[155] instructs:
In our system of government, the President, being the head
of state, is regarded as the sole organ and authority in
external relations and is the country's sole representative
with foreign nations. As the chief architect of foreign policy,
the President acts as the country's mouthpiece with respect
to international affairs. Hence, the President is vested with
the authority to deal with foreign states and governments,
extend or withhold recognition, maintain diplomatic
relations, enter into treaties, and otherwise transact the
business of foreign relations. In the realm of treaty-
making, the President has the sole authority to negotiate
with other states. (Emphasis and underscoring supplied)
Article II, Section 22 of the Constitution must also be amended if the
scheme envisioned in the MOA-AD is to be effected. That constitutional
provision states: The State recognizes and promotes the rights of indigenous
cultural communities within the framework of national unity and
development. (Underscoring supplied) An associativearrangement does not
uphold national unity. While there may be a semblance of unity because of the
associative ties between the BJE and the national government, the act of
placing a portion of Philippine territory in a status which, in international
practice, has generally been a preparation for independence, is certainly not
conducive to nationalunity.
28
Besides being irreconcilable
with the Constitution, the
MOA-AD is
also inconsistent with
prevailing statutory law,
among which are R.A. No.
9054[156] or the Organic Act
of the ARMM, and
the IPRA.[157]
Article X, Section 3 of the Organic Act of the ARMM is a bar to the
adoption of the definition of Bangsamoro people used in the MOA-
AD. Paragraph 1 on CONCEPTS AND PRINCIPLES states:
1. It is the birthright of all Moros and all Indigenous peoples
of Mindanao to identify themselves and be accepted as
Bangsamoros. The Bangsamoro people refers to those who
are natives or original inhabitants of Mindanao and its
adjacent islands including Palawan and the Sulu
archipelago at the time of conquest or colonization of its
descendants whether mixed or of full blood. Spouses and
their descendants are classified as Bangsamoro. The
freedom of choice of the Indigenous people shall be
respected. (Emphasis and underscoring supplied)
This use of the term Bangsamoro sharply contrasts with that found in
the Article X, Section 3 of the Organic Act, which, rather than lumping together
the identities of the Bangsamoro and other indigenous peoples living in
Mindanao, clearly distinguishes between Bangsamoro people and Tribal
peoples, as follows:
As used in this Organic Act, the phrase indigenous cultural
community refers to Filipino citizens residing in the
autonomous region who are:

(a) Tribal peoples. These are citizens whose social, cultural
and economic conditions distinguish them from other sectors
of the national community; and
(b) Bangsa Moro people. These are citizens who
are believers in Islam and who have retained some or all
of their own social, economic, cultural, and political
institutions.
Respecting the IPRA, it lays down the prevailing procedure for the delineation
and recognition of ancestral domains. The MOA-ADs manner of delineating
the ancestral domain of the Bangsamoro people is a clear departure from that
procedure. By paragraph 1 of TERRITORY, the Parties simply agree that,
subject to the delimitations in the agreed Schedules, [t]he Bangsamoro
homeland and historic territory refer to the land mass as well as the maritime,
terrestrial, fluvial and alluvial domains, and the aerial domain, the atmospheric
space above it, embracing the Mindanao-Sulu-Palawan geographic region.
Chapter VIII of the IPRA, on the other hand, lays down a detailed procedure,
as illustrated in the following provisions thereof:
SECTION 52. Delineation Process. The identification and
delineation of ancestral domains shall be done in accordance
with the following procedures:
xxxx
b) Petition for Delineation. The process of delineating a
specific perimeter may be initiated by the NCIP with the
consent of the ICC/IP concerned, or through a Petition for
Delineation filed with the NCIP, by a majority of the members
of the ICCs/IPs;
c) Delineation Proper. The official delineation of ancestral
domain boundaries including census of all community
29
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.
 30

e) Preparation of Maps. On the basis of such investigation

and the findings of fact based thereon, the Ancestral Domains xxxx
Office of the NCIP shall prepare a perimeter map, complete
with technical descriptions, and a description of the natural To remove all doubts about the irreconcilability of the MOA-AD with
features and landmarks embraced therein; the present legal system, a discussion of not only the Constitution and

f) Report of Investigation and Other Documents. A complete domestic statutes, but also of international law is in order, for
copy of the preliminary census and a report of investigation,
shall be prepared by the Ancestral Domains Office of the Article II, Section 2 of the
NCIP; Constitution states that
the Philippines adopts the
g) Notice and Publication. A copy of each document, including generally accepted
a translation in the native language of the ICCs/IPs concerned principles of international
shall be posted in a prominent place therein for at least fifteen law as part of the law of the
(15) days. A copy of the document shall also be posted at the land.
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 Applying this provision of the Constitution, the Court, in Mejoff v. Director of
publication: Provided, That in areas where no such
newspaper exists, broadcasting in a radio station will be a Prisons,[158] held that the Universal Declaration of Human Rights is part of the
valid substitute: Provided, further, That mere posting shall be
law of the land on account of which it ordered the release on bail of a detained
deemed sufficient if both newspaper and radio station are not
available; alien of Russian descent whose deportation order had not been executed even

h) Endorsement to NCIP. Within fifteen (15) days from after two years. Similarly, the Court in Agustin v. Edu[159] applied the aforesaid
publication, and of the inspection process, the Ancestral constitutional provision to the 1968 Vienna Convention on Road Signs and
Domains Office shall prepare a report to the NCIP endorsing
a favorable action upon a claim that is deemed to have Signals.
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 International law has long recognized the right to self-determination of
Office shall reject any claim that is deemed patently false or
peoples, understood not merely as the entire population of a State but also a
fraudulent after inspection and verification: Provided, further,
That in case of rejection, the Ancestral Domains Office shall portion thereof. In considering the question of whether the people of Quebec
give the applicant due notice, copy furnished all concerned,
containing the grounds for denial. The denial shall be had a right to unilaterally secede from Canada, the Canadian Supreme Court
appealable to the NCIP: Provided, furthermore, That in cases in REFERENCE RE SECESSION OF QUEBEC[160]had occasion to
where there are conflicting claims among ICCs/IPs on the
boundaries of ancestral domain claims, the Ancestral acknowledge that the right of a people to self-determination is now so widely
Domains Office shall cause the contending parties to meet recognized in international conventions that the principle has acquired a status
and assist them in coming up with a preliminary resolution of
the conflict, without prejudice to its full adjudication according beyond convention and is considered a general principle of international law.
to the section below.

Among the conventions referred to are the International Covenant on
Civil and Political Rights[161] and the International Covenant on Economic,
Social and Cultural Rights[162] 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 peoples 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 peoples
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)
31
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
peoples 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 states 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 Islandsshould
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
32
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) throughGeneral 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-
33
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.
34
3. States shall provide effective mechanisms for just and fair
redress for any such activities, and appropriate
measures shall be taken to mitigate adverse
environmental, economic, social, cultural or spiritual
impact.
Article 37
1. Indigenous peoples have the right to the recognition,
observance and enforcement of treaties, agreements
and other constructive arrangements concluded with
States or their successors and to have States honour
and respect such treaties, agreements and other
constructive arrangements.
2. Nothing in this Declaration may be interpreted as
diminishing or eliminating the rights of indigenous
peoples contained in treaties, agreements and other
constructive arrangements.
Article 38
States in consultation and cooperation with indigenous
peoples, shall take the appropriate measures, including
legislative measures, to achieve the ends of this Declaration.
Assuming that the UN DRIP, like the Universal Declaration on Human Rights,
must now be regarded as embodying customary international law a question
which the Court need not definitively resolve here the obligations enumerated
therein do not strictly require the Republic to grant the Bangsamoro people,
through the instrumentality of the BJE, the particular rights and powers
provided for in the MOA-AD. Even the more specific provisions of the UN DRIP
are general in scope, allowing for flexibility in its application by the different
States.

There is, for instance, no requirement in the UN DRIP that States now
guarantee indigenous peoples their own police and internal security
force. Indeed, Article 8 presupposes that it is the State which will provide
protection for indigenous peoples against acts like the forced dispossession of
their lands a function that is normally performed by police officers. If the
protection of a right so essential to indigenous peoples identity is
acknowledged to be the responsibility of the State, then surely the protection
of rights less significant to them as such peoples would also be the duty of
States. Nor is there in the UN DRIP an acknowledgement of the right of
indigenous peoples to the aerial domain and atmospheric space. What it
upholds, in Article 26 thereof, is the right of indigenous peoples to the lands,
territories and resources which they have traditionally owned, occupied or
otherwise used or acquired.
Moreover, the UN DRIP, while upholding the right of indigenous peoples to
autonomy, does not obligate States to grant indigenous peoples the 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
35
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:
36
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
Presidents 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
37
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 Presidents 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 nations constitutional structure is required. The
observations of Dr. Kirsti Samuels are enlightening, to wit:
x x x [T]he fact remains that a successful political and
governance transition must form the core of any post-conflict
peace-building mission. As we have observed
in Liberia and Haiti over the last ten years, conflict cessation
without modification of the political environment, even where
state-building is undertaken through technical electoral
assistance and institution- or capacity-building, is unlikely to
succeed. On average, more than 50 percent of states
emerging from conflict return to conflict. Moreover, a
substantial proportion of transitions have resulted in weak or
limited democracies.

The design of a constitution and its constitution-making
process can play an important role in the political and
governance transition. Constitution-making after conflict is an
opportunity to create a common vision of the future of a state
and a road map on how to get there. The constitution can be
partly a peace agreement and partly a framework setting up
the rules by which the new democracy will operate.[170]
In the same vein, Professor Christine Bell, in her article on the nature and legal
status of peace agreements, observed that the typical way that peace
agreements establish or confirm mechanisms for demilitarization and
demobilization is by linking them to new constitutional
structures addressing governance, elections, and legal and human rights
institutions.[171]
In the Philippine experience, the link between peace agreements and
constitution-making has been recognized by no less than the framers of the
Constitution. Behind the provisions of the Constitution on autonomous
regions[172] is the framers intention to implement a particular peace agreement,
namely, the Tripoli Agreement of 1976 between the GRP and the MNLF,
signed by then Undersecretary of National Defense Carmelo Z. Barbero and
then MNLF Chairman Nur Misuari.
MR. ROMULO. There are other speakers; so,
although I have some more questions, I will reserve my right to
ask them if they are not covered by the other speakers. I have
only two questions.
I heard one of the Commissioners say that local
autonomy already exists in the Muslim region; it is working
very well; it has, in fact, diminished a great deal of the
problems. So, my question is: since that already exists, why
do we have to go into something new?
MR. OPLE. May I answer that on behalf of Chairman
Nolledo. Commissioner Yusup Abubakar is right that certain
definite steps have been taken to implement the
provisions of the Tripoli Agreement with respect to an
38
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 Presidents act, holding that the
urges of absolute necessity compelled the President as the agent of the people
to act as he did, there being no interim National Assembly to propose
constitutional amendments. Against this ruling, Justices Teehankee and Muoz
Palma vigorously dissented. The Courts concern at present, however, is not
with regard to the point on which it was then divided in that controversial case,
but on that which was not disputed by either side.
Justice Teehankees dissent,[175] in particular, bears noting. While he
disagreed that the President may directly submit proposed constitutional
amendments to a referendum, implicit in his opinion is a recognition that he
would have upheld the Presidents action along with the majority had the
President convened the interim National Assembly and coursed his proposals
through it. Thus Justice Teehankee opined:
Since the Constitution provides for the organization of the
essential departments of government, defines and delimits
the powers of each and prescribes the manner of the exercise
of such powers, and the constituent power has not been
granted to but has been withheld from the President or Prime
Minister, it follows that the Presidents questioned decrees
proposing and submitting constitutional amendments directly
39
to the people (without the intervention of the interim
National Assembly in whom the power is expressly
vested) are devoid of constitutional and legal
basis.[176] (Emphasis supplied)
From the foregoing discussion, the principle may be inferred that the President
in the course of conducting peace negotiations may validly consider
implementing even those policies that require changes to the Constitution, but
she may not unilaterally implement them without the intervention of
Congress, or act in any way as if the assent of that body were assumed
as a certainty.
Since, under the present Constitution, the people also have the power to
directly propose amendments through initiative and referendum, the President
may also submit her recommendations to the people, not as a formal proposal
to be voted on in a plebiscite similar to what President Marcos did in Sanidad,
but for their independent consideration of whether these recommendations
merit being formally proposed through initiative.
These recommendations, however, may amount to nothing more than the
Presidents suggestions to the people, for any further involvement in the
process of initiative by the Chief Executive may vitiate its character as a
genuine peoples initiative. The only initiative recognized by the Constitution is
that which truly proceeds from the people. As the Court stated in Lambino v.
COMELEC:[177]
The Lambino Group claims that their initiative is the
people's voice. However, the Lambino Group unabashedly
states in ULAP Resolution No. 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 Presidents 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 Presidents authority to propose
constitutional amendments, she cannot guarantee to any third party that the
40
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 Presidents authority to propose constitutional
amendments, it being a virtual guarantee that the Constitution and the laws
of the Republic of the Philippines will certainly be adjusted to conform to all the
consensus points found in the MOA-AD. Hence, it must be struck down
as unconstitutional.
A comparison between the suspensive clause of the MOA-AD with a
similar provision appearing in the 1996 final peace agreement between the
MNLF and the GRP is most instructive.
As a backdrop, the parties to the 1996 Agreement stipulated that it
would be implemented in two phases. Phase I covered a three-year
transitional period involving the putting up of new administrative
structures through Executive Order, such as the Special Zone of Peace and
Development (SZOPAD) and the Southern Philippines Council for Peace and
Development (SPCPD), while Phase II covered the establishment of the new
regional autonomous government through amendment or repeal of R.A. No.
6734, which was then the Organic Act of the ARMM.
The stipulations on Phase II consisted of specific agreements on the
structure of the expanded autonomous region envisioned by the parties. To
that extent, they are similar to the provisions of the MOA-AD. There is,
however, a crucial difference between the two agreements. While the MOA-
41
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
AMNESTY[180] (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
42
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).
43
In the Nuclear Tests Case, Australia challenged before the ICJ the
legality of Frances nuclear tests in the South Pacific. France refused to appear
in the case, but public statements from its President, and similar statements
from other French officials including its Minister of Defence, that its 1974 series
of atmospheric tests would be its last, persuaded the ICJ to dismiss the
case.[182] Those statements, the ICJ held, amounted to a legal undertaking
addressed to the international community, which required no acceptance from
other States for it to become effective.
Essential to the ICJ ruling is its finding that the French
government intended to be bound to the international community in issuing its
public statements, viz:
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 boundthe 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
44
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 Maliwould 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
Malis 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
45
Presidents statement was not held to be a binding unilateral declaration by the
ICJ. As in that case, there was also nothing to hinder the Philippine panel, had
it really been its intention to be bound to other States, to manifest that intention
by formal agreement. Here, that formal agreement would have come about by
the inclusion in the MOA-AD of a clear commitment to be legally bound to the
international community, not just the MILF, and by an equally clear indication
that the signatures of the participating states-representatives would constitute
an acceptance of that commitment. Entering into such a formal agreement
would not have resulted in a loss of face for the Philippine government before
the international community, which was one of the difficulties that prevented
the French Government from entering into a formal agreement with other
countries. That the Philippine panel did not enter into such a formal agreement
suggests that it had no intention to be bound to the international
community. On that ground, the MOA-AD may not be considered a unilateral
declaration under international law.
The MOA-AD not being a document that can bind the Philippines under
international law notwithstanding, respondents almost consummated act
of guaranteeing amendmentsto the legal framework is, by itself,
sufficient to constitute grave abuse of discretion. The grave abuse lies not
in the fact that they considered, as a solution to the Moro Problem, the creation
of a state within a state, but in their brazen willingness to guarantee that
Congress and the sovereign Filipino people would give their imprimatur
to their solution. Upholding such an act would amount to authorizing a
usurpation of the constituent powers vested only in Congress, a Constitutional
Convention, or the people themselves through the process of initiative, for the
only way that the Executive can ensure the outcome of the amendment
process is through an undue influence or interference with that process.
 46

guide the bench, the bar, and the public; and (d) the fact that the case is
The sovereign people may, if it so desired, go to the extent of giving capable of repetition yet evading review.
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 The MOA-AD is a significant part of a series of agreements necessary to carry
inconsistent with what, in international law, is known as Jus out the GRP-MILF Tripoli Agreement on Peace signed by the government and
Cogens.[184] Respondents, however, may not preempt it in that decision. 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.
SUMMARY
The Court, however, finds that the prayers for mandamus have been rendered

The petitions are ripe for adjudication. The failure of respondents to moot in view of the respondents action in providing the Court and the

consult the local government units or communities affected constitutes a petitioners with the official copy of the final draft of the MOA-AD and its

departure by respondents from their mandate under E.O. No. 3. Moreover, annexes.

respondents exceeded their authority by the mere act of guaranteeing

amendments to the Constitution. Any alleged violation of the Constitution by The peoples right to information on matters of public concern under Sec. 7,
Article III of the Constitution is in splendid symmetry with the state policy of full
any branch of government is a proper matter for judicial review.
public disclosure of all its transactions involving public interest under Sec. 28,

As the petitions involve constitutional issues which are of paramount public Article II of the Constitution. The right to information guarantees the right of the

interest or of transcendental importance, the Court grants the petitioners, people to demand information, while Section 28 recognizes the duty of

petitioners-in-intervention and intervening respondents the requisite locus officialdom to give information even if nobody demands. The complete and

standi in keeping with the liberal stance adopted in David v. Macapagal- effective exercise of the right to information necessitates that its

Arroyo. complementary provision on public disclosure derive the same self-executory

nature, subject only to reasonable safeguards or limitations as may be

Contrary to the assertion of respondents that the non-signing of the MOA-AD provided by law.

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 The contents of the MOA-AD is a matter of paramount public concern involving

moot and academic principle in view of (a) the grave violation of the public interest in the highest order. In declaring that the right to information

Constitution involved; (b) the exceptional character of the situation and contemplates steps and negotiations leading to the consummation of the

paramount public interest; (c) the need to formulate controlling principles to


contract, jurisprudence finds no distinction as to the executory nature or
commercial character of the agreement.
An essential element of these twin freedoms is to keep a continuing
dialogue or process of communication between the government and the
people. Corollary to these twin rights is the design for feedback
mechanisms. The right to public consultation was envisioned to be a species
of these public rights.
At least three pertinent laws animate these constitutional imperatives and
justify the exercise of the peoples right to be consulted on relevant matters
relating to the peace agenda.
One, E.O. No. 3 itself is replete with mechanics for continuing consultations on
both national and local levels and for a principal forum for consensus-
building. In fact, it is the duty of the Presidential Adviser on the Peace Process
to conduct regular dialogues to seek relevant information, comments, advice,
and recommendations from peace partners and concerned sectors of society.
Two, Republic Act No. 7160 or the Local Government Code of 1991 requires
all national offices to conduct consultations before any project or program
critical to the environment and human ecology including those that may call for
the eviction of a particular group of people residing in such locality, is
implemented therein. The MOA-AD is one peculiar program that unequivocally
and unilaterally vests ownership of a vast territory to the Bangsamoro people,
which could pervasively and drastically result to the diaspora or displacement
of a great number of inhabitants from their total environment.
47
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
 48

BJE, are unconstitutional, for the concept presupposes that the associated The Memorandum of Agreement on the Ancestral Domain Aspect of
entity is a state and implies that the same is on its way to independence. the GRP-MILF Tripoli Agreement on Peace of 2001 is declared CONTRARY
TO LAW AND THE CONSTITUTION.
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
SO ORDERED.
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.
 49

MARIA LUISA MANALAYSAY,

EN BANC MIGUEL RAFAEL MUSNGI,

MICHAEL OCAMPO, JAKLYN HANNA

PINEDA, WILLIAM RAGAMAT,

PROF. MERLIN M. MAGALLONA, G.R No. 187167 MARICAR RAMOS, ENRIK FORT

AKBAYAN PARTY-LIST REP. RISA REVILLAS, JAMES MARK TERRY

HONTIVEROS, PROF. HARRY C. Present: RIDON, JOHANN FRANTZ RIVERA IV,

ROQUE, JR., AND UNIVERSITY OF CHRISTIAN RIVERO, DIANNE MARIE

THE PHILIPPINES COLLEGE OF CORONA, C.J., ROA, NICHOLAS SANTIZO, MELISSA

LAW STUDENTS, ALITHEA CARPIO, CHRISTINA SANTOS, CRISTINE MAE

BARBARA ACAS, VOLTAIRE VELASCO, JR., TABING, VANESSA ANNE TORNO,

ALFERES, CZARINA MAY LEONARDO-DE CASTRO, MARIA ESTER VANGUARDIA, and

ALTEZ, FRANCIS ALVIN ASILO, BRION, MARCELINO VELOSO III,

SHERYL BALOT, RUBY AMOR PERALTA, Petitioners,

BARRACA, JOSE JAVIER BAUTISTA, BERSAMIN,

ROMINA BERNARDO, VALERIE DEL CASTILLO, - versus -

PAGASA BUENAVENTURA, EDAN ABAD, HON. EDUARDO ERMITA, IN HIS

MARRI CAETE, VANN ALLEN VILLARAMA, JR., CAPACITY AS EXECUTIVE

DELA CRUZ, RENE DELORINO, PEREZ, SECRETARY, HON. ALBERTO

PAULYN MAY DUMAN, SHARON MENDOZA, and ROMULO, IN HIS CAPACITY AS

ESCOTO, RODRIGO FAJARDO III, SERENO, JJ. SECRETARY OF THE DEPARTMENT

GIRLIE FERRER, RAOULLE OSEN OF FOREIGN AFFAIRS, HON.

FERRER, CARLA REGINA GREPO, ROLANDO ANDAYA, IN HIS CAPACITY

ANNA MARIE CECILIA GO, IRISH AS SECRETARY OF THE DEPARTMENT

KAY KALAW, MARY ANN JOY LEE, OF BUDGET AND MANAGEMENT,

 50

HON. DIONY VENTURA, IN HIS

CAPACITY AS ADMINISTRATOR OF

THE NATIONAL MAPPING & The Antecedents

RESOURCE INFORMATION

AUTHORITY, and HON. HILARIO 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
DAVIDE, JR., IN HIS CAPACITY AS followed the framing of the Convention on the Territorial Sea and the
REPRESENTATIVE OF THE Contiguous Zone in 1958 (UNCLOS I),4 codifying, among others, the
sovereign right of States parties over their territorial sea, the breadth of
PERMANENT MISSION OF THE which, however, was left undetermined. Attempts to fill this void during the
second round of negotiations in Geneva in 1960 (UNCLOS II) proved futile.
REPUBLIC OF THE PHILIPPINES Promulgated:
Thus, domestically, RA 3046 remained unchanged for nearly five decades,
TO THE UNITED NATIONS, save for legislation passed in 1968 (Republic Act No. 5446 [RA 5446])
correcting typographical errors and reserving the drawing of baselines
Respondents. July 16, 2011 around Sabah in North Borneo.
x ----------------------------------------------------------------------------------------- x

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
DECISION 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 Philippines 7 and sets
the deadline for the filing of application for the extended continental
shelf.8 Complying with these requirements, RA 9522 shortened one baseline,
CARPIO, J.: 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.

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.
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
 51

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 1. Preliminarily
constitutional provisions.13

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

In addition, petitioners contend that RA 9522s treatment of the KIG as regime 2. Whether the writs of certiorari and prohibition are the proper remedies to
of islands not only results in the loss of a large maritime area but also assail the constitutionality of RA 9522.
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
2. On the merits, whether RA 9522 is unconstitutional.
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.
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

Respondents also question the normative force, under international law, of Petitioners Possess Locus
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 Standi as Citizens
boundaries of the rectangular area drawn under the Treaty of Paris.

Petitioners themselves undermine their assertion of locus standi as

We left unacted petitioners prayer for an injunctive writ. 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 Issues
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
The petition raises the following issues:

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
52
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
territory21 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
53
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.
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.
 54

there will have to be a delineation of maritime boundaries in accordance with

UNCLOS III.30
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 Extent of maritime

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

Internal or
archipelagic
waters 166,858 171,435

Territorial 274,136 32,106

Sea

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,

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.
55
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. 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:
 56

RA 5446 Retained

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, Petitioners argument for the invalidity of RA 9522 for its failure to textualize
except that up to 3 per cent of the total number of baselines enclosing any the Philippines claim over Sabah in North Borneo is also untenable. Section
archipelago may exceed that length, up to a maximum length of 125 nautical 2 of RA 5446, which RA 9522 did not repeal, keeps open the door for
miles. drawing the baselines of Sabah:
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. 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
3. Finally, the basepoints were drawn from maps existing in 1968, and not delineation of the baselines of the territorial sea around the territory of
established by geodetic survey methods. Accordingly, some of the points, Sabah, situated in North Borneo, over which the Republic of the
particularly along the west coasts of Luzon down to Palawan were later found Philippines has acquired dominion and sovereignty. (Emphasis supplied)
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 UNCLOS III and RA 9522 not
Scarborough Shoal, Congress decision to classify the KIG and the
Incompatible with the Constitutions
Scarborough Shoal as Regime[s] of Islands under the Republic of the
Philippines consistent with Article 12136 of UNCLOS III manifests the Delineation of Internal Waters
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
As their final argument against the validity of RA 9522, petitioners contend
high tide, such as portions of the KIG, qualifies under the category of regime
that the law unconstitutionally converts internal waters into archipelagic
of islands, whose islands generate their own applicable maritime zones. 37
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
Statutory Claim Over Sabah under

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
57
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.
Factoran50treated 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
 58

2, paragraph 251) and subsistence fishermen (Article XIII, Section 752), are Philippine maritime space. These are consequences Congress wisely
not violated by RA 9522. avoided.

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.
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.

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 SO ORDERED.
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

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 206510 September 16, 2014
MOST REV. PEDRO D. ARIGO, Vicar Apostolic of Puerto Princesa D.D.;
MOST REV. DEOGRACIAS S. INIGUEZ, JR., Bishop-Emeritus of
Caloocan, FRANCES Q. QUIMPO, CLEMENTE G. BAUTISTA, JR.,
Kalikasan-PNE, MARIA CAROLINA P. ARAULLO, RENATO M. REYES,
JR., Bagong Alyansang Makabayan, HON. NERI JAVIER COLMENARES,
Bayan Muna Partylist, ROLAND G. SIMBULAN, PH.D., Junk VF A
Movement, TERESITA R. PEREZ, PH.D., HON. RAYMOND V. PALATINO,
Kabataan Party-list, PETER SJ. GONZALES, Pamalakaya, GIOVANNI A.
TAPANG, PH. D., Agham, ELMER C. LABOG, Kilusang Mayo Uno, JOAN
MAY E. SALVADOR, Gabriela, JOSE ENRIQUE A. AFRICA, THERESA A.
CONCEPCION, MARY JOAN A. GUAN, NESTOR T. BAGUINON, PH.D.,
A. EDSEL F. TUPAZ, Petitioners,
vs.
SCOTT H. SWIFT in his capacity as Commander of the US. 7th Fleet,
MARK A. RICE in his capacity as Commanding Officer of the USS
Guardian, PRESIDENT BENIGNO S. AQUINO III in his capacity as
Commander-in-Chief of the Armed Forces of the Philippines, HON.
ALBERT F. DEL ROSARIO, Secretary, pepartment of Foreign Affair.s,
HON. PAQUITO OCHOA, JR., Executiv~.:Secretary, Office of the
President, . HON. VOLTAIRE T. GAZMIN, Secretary, Department of
National Defense, HON. RAMON JESUS P. P AJE, Secretary,
Department of Environment and Natural Resoz!rces, VICE ADMIRAL
JOSE LUIS M. ALANO, Philippine Navy Flag Officer in Command,
Armed Forces of the Philippines, ADMIRAL RODOLFO D. ISO RENA,
Commandant, Philippine Coast Guard, COMMODORE ENRICO EFREN
EVANGELISTA, Philippine Coast Guard Palawan, MAJOR GEN.
VIRGILIO 0. DOMINGO, Commandant of Armed Forces of the
Philippines Command and LT. GEN. TERRY G. ROBLING, US Marine
Corps Forces. Pacific and Balikatan 2013 Exercise Co-
Director, Respondents.
DECISION
VILLARAMA, JR, J.:
59
Before us is a petition for the issuance of a Writ of Kalikasan with prayer for
the issuance of a Temporary Environmental Protection Order (TEPO) under
Rule 7 of A.M. No. 09-6-8-SC, otherwise known as the Rules of Procedure
for Environmental Cases (Rules), involving violations of environmental laws
and regulations in relation to the grounding of the US military ship USS
Guardian over the Tubbataha Reefs.
Factual Background
The name "Tubbataha" came from the Samal (seafaring people of southern
Philippines) language which means "long reef exposed at low tide."
Tubbataha is composed of two huge coral atolls - the north atoll and the
south atoll - and the Jessie Beazley Reef, a smaller coral structure about 20
kilometers north of the atolls. The reefs of Tubbataha and Jessie Beazley are
considered part of Cagayancillo, a remote island municipality of Palawan.1
In 1988, Tubbataha was declared a National Marine Park by virtue of
Proclamation No. 306 issued by President Corazon C. Aquino on August 11,
1988. Located in the middle of Central Sulu Sea, 150 kilometers southeast of
Puerto Princesa City, Tubbataha lies at the heart of the Coral Triangle, the
global center of marine biodiversity.
In 1993, Tubbataha was inscribed by the United Nations Educational
Scientific and Cultural Organization (UNESCO) as a World Heritage Site. It
was recognized as one of the Philippines' oldest ecosystems, containing
excellent examples of pristine reefs and a high diversity of marine life. The
97,030-hectare protected marine park is also an important habitat for
internationally threatened and endangered marine species. UNESCO cited
Tubbataha's outstanding universal value as an important and significant
natural habitat for in situ conservation of biological diversity; an example
representing significant on-going ecological and biological processes; and an
area of exceptional natural beauty and aesthetic importance.2
On April 6, 2010, Congress passed Republic Act (R.A.) No.
10067,3 otherwise known as the "Tubbataha Reefs Natural Park (TRNP) Act
of 2009" "to ensure the protection and conservation of the globally significant
economic, biological, sociocultural, educational and scientific values of the
Tubbataha Reefs into perpetuity for the enjoyment of present and future
generations." Under the "no-take" policy, entry into the waters of TRNP is
strictly regulated and many human activities are prohibited and penalized or
fined, including fishing, gathering, destroying and disturbing the resources
within the TRNP. The law likewise created the Tubbataha Protected Area

Management Board (TPAMB) which shall be the sole policy-making and
permit-granting body of the TRNP.
The USS Guardian is an Avenger-class mine countermeasures ship of the
US Navy. In December 2012, the US Embassy in the Philippines requested
diplomatic clearance for the said vessel "to enter and exit the territorial
waters of the Philippines and to arrive at the port of Subic Bay for the
purpose of routine ship replenishment, maintenance, and crew liberty."4 On
January 6, 2013, the ship left Sasebo, Japan for Subic Bay, arriving on
January 13, 2013 after a brief stop for fuel in Okinawa, Japan.1âwphi1
On January 15, 2013, the USS Guardian departed Subic Bay for its next port
of call in Makassar, Indonesia. On January 17, 2013 at 2:20 a.m. while
transiting the Sulu Sea, the ship ran aground on the northwest side of South
Shoal of the Tubbataha Reefs, about 80 miles east-southeast of Palawan.
No cine was injured in the incident, and there have been no reports of
leaking fuel or oil.
On January 20, 2013, U.S. 7th Fleet Commander, Vice Admiral Scott Swift,
expressed regret for the incident in a press statement.5 Likewise, US
Ambassador to the Philippines Harry K. Thomas, Jr., in a meeting at the
Department of Foreign Affairs (DFA) on February 4, "reiterated his regrets
over the grounding incident and assured Foreign Affairs Secretazy Albert F.
del Rosario that the United States will provide appropriate compensation for
damage to the reef caused by the ship."6 By March 30, 2013, the US Navy-
led salvage team had finished removing the last piece of the grounded ship
from the coral reef.
On April 1 7, 2013, the above-named petitioners on their behalf and in
representation of their respective sector/organization and others, including
minors or generations yet unborn, filed the present petition agairtst Scott H.
Swift in his capacity as Commander of the US 7th Fleet, Mark A. Rice in his
capacity as Commanding Officer of the USS Guardian and Lt. Gen. Terry G.
Robling, US Marine Corps Forces, Pacific and Balikatan 2013 Exercises Co-
Director ("US respondents"); President Benigno S. Aquino III in his capacity
as Commander-in-Chief of the Armed Forces of the Philippines (AFP), DF A
Secretary Albert F. Del Rosario, Executive Secretary Paquito Ochoa, Jr.,
Secretary Voltaire T. Gazmin (Department of National Defense), Secretary
Jesus P. Paje (Department of Environment and Natural Resources), Vice-
Admiral Jose Luis M. Alano (Philippine Navy Flag Officer in Command, AFP),
Admiral Rodolfo D. Isorena (Philippine Coast Guard Commandant),
Commodore Enrico Efren Evangelista (Philippine Coast Guard-Palawan),
60
and Major General Virgilio 0. Domingo (AFP Commandant), collectively the
"Philippine respondents."
The Petition
Petitioners claim that the grounding, salvaging and post-salvaging operations
of the USS Guardian cause and continue to cause environmental damage of
such magnitude as to affect the provinces of Palawan, Antique, Aklan,
Guimaras, Iloilo, Negros Occidental, Negros Oriental, Zamboanga del Norte,
Basilan, Sulu, and Tawi-Tawi, which events violate their constitutional rights
to a balanced and healthful ecology. They also seek a directive from this
Court for the institution of civil, administrative and criminal suits for acts
committed in violation of environmental laws and regulations in connection
with the grounding incident.
Specifically, petitioners cite the following violations committed by US
respondents under R.A. No. 10067: unauthorized entry (Section 19); non-
payment of conservation fees (Section 21 ); obstruction of law enforcement
officer (Section 30); damages to the reef (Section 20); and destroying and
disturbing resources (Section 26[g]). Furthermore, petitioners assail certain
provisions of the Visiting Forces Agreement (VFA) which they want this Court
to nullify for being unconstitutional.
The numerous reliefs sought in this case are set forth in the final prayer of
the petition, to wit: WHEREFORE, in view of the foregoing, Petitioners
respectfully pray that the Honorable Court: 1. Immediately issue upon the
filing of this petition a Temporary Environmental Protection Order (TEPO)
and/or a Writ of Kalikasan, which shall, in particular,
a. Order Respondents and any person acting on their behalf, to
cease and desist all operations over the Guardian grounding
incident;
b. Initially demarcating the metes and bounds of the damaged area
as well as an additional buffer zone;
c. Order Respondents to stop all port calls and war games under
'Balikatan' because of the absence of clear guidelines, duties, and
liability schemes for breaches of those duties, and require
Respondents to assume responsibility for prior and future
environmental damage in general, and environmental damage under
the Visiting Forces Agreement in particular.

d. Temporarily define and describe allowable activities of ecotourism,
diving, recreation, and limited commercial activities by fisherfolk and
indigenous communities near or around the TRNP but away from the
damaged site and an additional buffer zone;
2. After summary hearing, issue a Resolution extending the TEPO
until further orders of the Court;
3. After due proceedings, render a Decision which shall include,
without limitation:
a. Order Respondents Secretary of Foreign Affairs, following the
dispositive portion of Nicolas v. Romulo, "to forthwith negotiate with
the United States representatives for the appropriate agreement on
[environmental guidelines and environmental accountability] under
Philippine authorities as provided in Art. V[] of the VFA ... "
b. Direct Respondents and appropriate agencies to commence
administrative, civil, and criminal proceedings against erring officers
and individuals to the full extent of the law, and to make such
proceedings public;
c. Declare that Philippine authorities may exercise primary and
exclusive criminal jurisdiction over erring U.S. personnel under the
circumstances of this case;
d. Require Respondents to pay just and reasonable compensation in
the settlement of all meritorious claims for damages caused to the
Tubbataha Reef on terms and conditions no less severe than those
applicable to other States, and damages for personal injury or death,
if such had been the case;
e. Direct Respondents to cooperate in providing for the attendance of
witnesses and in the collection and production of evidence, including
seizure and delivery of objects connected with the offenses related to
the grounding of the Guardian;
f. Require the authorities of the Philippines and the United States to
notify each other of the disposition of all cases, wherever heard,
related to the grounding of the Guardian;
61
g. Restrain Respondents from proceeding with any purported
restoration, repair, salvage or post salvage plan or plans, including
cleanup plans covering the damaged area of the Tubbataha Reef
absent a just settlement approved by the Honorable Court;
h. Require Respondents to engage in stakeholder and LOU
consultations in accordance with the Local Government Code and
R.A. 10067;
i. Require Respondent US officials and their representatives to place
a deposit to the TRNP Trust Fund defined under Section 17 of RA
10067 as a bona .fide gesture towards full reparations;
j. Direct Respondents to undertake measures to rehabilitate the
areas affected by the grounding of the Guardian in light of
Respondents' experience in the Port Royale grounding in 2009,
among other similar grounding incidents;
k. Require Respondents to regularly publish on a quarterly basis and
in the name of transparency and accountability such environmental
damage assessment, valuation, and valuation methods, in all stages
of negotiation;
l. Convene a multisectoral technical working group to provide
scientific and technical support to the TPAMB;
m. Order the Department of Foreign Affairs, Department of National
Defense, and the Department of Environment and Natural
Resources to review the Visiting Forces Agreement and the Mutual
Defense Treaty to consider whether their provisions allow for the
exercise of erga omnes rights to a balanced and healthful ecology
and for damages which follow from any violation of those rights;
n. Narrowly tailor the provisions of the Visiting Forces Agreement for
purposes of protecting the damaged areas of TRNP;
o. Declare the grant of immunity found in Article V ("Criminal
Jurisdiction") and Article VI of the Visiting Forces Agreement
unconstitutional for violating equal protection and/or for violating the
preemptory norm of nondiscrimination incorporated as part of the law
of the land under Section 2, Article II, of the Philippine Constitution;

p. Allow for continuing discovery measures;
q. Supervise marine wildlife rehabilitation in the Tubbataha Reefs in
all other respects; and
4. Provide just and equitable environmental rehabilitation measures
and such other reliefs as are just and equitable under the
premises.7 (Underscoring supplied.)
Since only the Philippine respondents filed their comment8 to the petition,
petitioners also filed a motion for early resolution and motion to proceed ex
parte against the US respondents.9
Respondents' Consolidated Comment
In their consolidated comment with opposition to the application for a TEPO
and ocular inspection and production orders, respondents assert that: ( 1) the
grounds relied upon for the issuance of a TEPO or writ of Kalikasan have
become fait accompli as the salvage operations on the USS Guardian were
already completed; (2) the petition is defective in form and substance; (3) the
petition improperly raises issues involving the VFA between the Republic of
the Philippines and the United States of America; and ( 4) the determination
of the extent of responsibility of the US Government as regards the damage
to the Tubbataha Reefs rests exdusively with the executive branch.
The Court's Ruling
As a preliminary matter, there is no dispute on the legal standing of
petitioners to file the present petition.
Locus standi is "a right of appearance in a court of justice on a given
question."10 Specifically, it is "a party's personal and substantial interest in a
case where he has sustained or will sustain direct injury as a result" of the
act being challenged, and "calls for more than just a generalized
grievance."11 However, the rule on standing is a procedural matter which this
Court has relaxed for non-traditional plaintiffs like ordinary citizens, taxpayers
and legislators when the public interest so requires, such as when the
subject matter of the controversy is of transcendental importance, of
overreaching significance to society, or of paramount public interest. 12
In the landmark case of Oposa v. Factoran, Jr.,13 we recognized the "public
right" of citizens to "a balanced and healthful ecology which, for the first time
62
in our constitutional history, is solemnly incorporated in the fundamental law."
We declared that the right to a balanced and healthful ecology need not be
written in the Constitution for it is assumed, like other civil and polittcal rights
guaranteed in the Bill of Rights, to exist from the inception of mankind and it
is an issue of transcendental importance with intergenerational
implications.1âwphi1 Such right carries with it the correlative duty to refrain
from impairing the environment.14
On the novel element in the class suit filed by the petitioners minors in
Oposa, this Court ruled that not only do ordinary citizens have legal standing
to sue for the enforcement of environmental rights, they can do so in
representation of their own and future generations. Thus:
Petitioners minors assert that they represent their generation as well as
generations yet unborn. We find no difficulty in ruling that they can, for
themselves, for others of their generation and for the succeeding
generations, file a class suit. Their personality to sue in behalf of the
succeeding generations can only be based on the concept of
intergenerational responsibility insofar as the right to a balanced and
healthful ecology is concerned. Such a right, as hereinafter expounded,
considers the "rhythm and harmony of nature." Nature means the created
world in its entirety. Such rhythm and harmony indispensably include, inter
alia, the judicious disposition, utilization, management, renewal and
conservation of the country's forest, mineral, land, waters, fisheries, wildlife,
off-shore areas and other natural resources to the end that their exploration,
development and utilization be equitably accessible to the present a:: well as
future generations. Needless to say, every generation has a responsibility to
the next to preserve that rhythm and harmony for the full 1:njoyment of a
balanced and healthful ecology. Put a little differently, the minors' assertion
of their right to a sound environment constitutes, at the same time, the
performance of their obligation to ensure the protection of that right for the
generations to come.15 (Emphasis supplied.)
The liberalization of standing first enunciated in Oposa, insofar as it refers to
minors and generations yet unborn, is now enshrined in the Rules which
allows the filing of a citizen suit in environmental cases. The provision on
citizen suits in the Rules "collapses the traditional rule on personal and direct
interest, on the principle that humans are stewards of nature."16
Having settled the issue of locus standi, we shall address the more
fundamental question of whether this Court has jurisdiction over the US
respondents who did not submit any pleading or manifestation in this case.

The immunity of the State from suit, known also as the doctrine of sovereign
immunity or non-suability of the State,17is expressly provided in Article XVI of
the 1987 Constitution which states:
Section 3. The State may not be sued without its consent.
In United States of America v. Judge Guinto,18 we discussed the principle of
state immunity from suit, as follows:
The rule that a state may not be sued without its consent, now · expressed in
Article XVI, Section 3, of the 1987 Constitution, is one of the generally
accepted principles of international law that we have adopted as part of the
law of our land under Article II, Section 2. x x x.
Even without such affirmation, we would still be bound by the generally
accepted principles of international law under the doctrine of incorporation.
Under this doctrine, as accepted by the majority of states, such principles are
deemed incorporated in the law of every civilized state as a condition and
consequence of its membership in the society of nations. Upon its admission
to such society, the state is automatically obligated to comply with these
principles in its relations with other states.
As applied to the local state, the doctrine of state immunity is based on the
justification given by Justice Holmes that ''there can be no legal right against
the authority which makes the law on which the right depends." [Kawanakoa
v. Polybank, 205 U.S. 349] There are other practical reasons for the
enforcement of the doctrine. In the case of the foreign state sought to be
impleaded in the local jurisdiction, the added inhibition is expressed in the
maxim par in parem, non habet imperium. All states are sovereign equals
and cannot assert jurisdiction over one another. A contrary disposition would,
in the language of a celebrated case, "unduly vex the peace of nations." [De
Haber v. Queen of Portugal, 17 Q. B. 171]
While the doctrine appears to prohibit only suits against the state without its
consent, it is also applicable to complaints filed against officials of the state
for acts allegedly performed by them in the discharge of their duties. The rule
is that if the judgment against such officials will require the state itself to
perform an affirmative act to satisfy the same,. such as the appropriation of
the amount needed to pay the damages awarded against them, the suit must
be regarded as against the state itself although it has not been formally
impleaded. [Garcia v. Chief of Staff, 16 SCRA 120] In such a situation, the
state may move to dismiss the comp.taint on the ground that it has been filed
without its consent.19 (Emphasis supplied.)
63
Under the American Constitution, the doctrine is expressed in the Eleventh
Amendment which reads:
The Judicial power of the United States shall not be construed to extend to
any suit in law or equity, commenced or prosecuted against one of the United
States by Citizens of another State, or by Citizens or Subjects of any Foreign
State.
In the case of Minucher v. Court of Appeals,20 we further expounded on the
immunity of foreign states from the jurisdiction of local courts, as follows:
The precept that a State cannot be sued in the courts of a foreign state is a
long-standing rule of customary international law then closely identified with
the personal immunity of a foreign sovereign from suit and, with the
emergence of democratic states, made to attach not just to the person of the
head of state, or his representative, but also distinctly to the state itself in its
sovereign capacity. If the acts giving rise to a suit arc those of a foreign
government done by its foreign agent, although not necessarily a diplomatic
personage, but acting in his official capacity, the complaint could be barred
by the immunity of the foreign sovereign from suit without its consent. Suing
a representative of a state is believed to be, in effect, suing the state itself.
The proscription is not accorded for the benefit of an individual but for the
State, in whose service he is, under the maxim -par in parem, non habet
imperium -that all states are soverr~ign equals and cannot assert jurisdiction
over one another. The implication, in broad terms, is that if the judgment
against an official would rec 1uire the state itself to perform an affirmative act
to satisfy the award, such as the appropriation of the amount needed to pay
the damages decreed against him, the suit must be regarded as being
against the state itself, although it has not been formally
impleaded.21 (Emphasis supplied.)
In the same case we also mentioned that in the case of diplomatic immunity,
the privilege is not an immunity from the observance of the law of the
territorial sovereign or from ensuing legal liability; it is, rather, an immunity
from the exercise of territorial jurisdiction.22
In United States of America v. Judge Guinto,23 one of the consolidated cases
therein involved a Filipino employed at Clark Air Base who was arrested
following a buy-bust operation conducted by two officers of the US Air Force,
and was eventually dismissed from his employment when he was charged in
court for violation of R.A. No. 6425. In a complaint for damages filed by the
said employee against the military officers, the latter moved to dismiss the
case on the ground that the suit was against the US Government which had

not given its consent. The RTC denied the motion but on a petition for
certiorari and prohibition filed before this Court, we reversed the RTC and
dismissed the complaint. We held that petitioners US military officers were
acting in the exercise of their official functions when they conducted the buy-
bust operation against the complainant and thereafter testified against him at
his trial. It follows that for discharging their duties as agents of the United
States, they cannot be directly impleaded for acts imputable to their principal,
which has not given its consent to be sued.
This traditional rule of State immunity which exempts a State from being
sued in the courts of another State without the former's consent or waiver
has evolved into a restrictive doctrine which distinguishes sovereign and
governmental acts (Jure imperil") from private, commercial and proprietary
acts (Jure gestionis). Under the restrictive rule of State immunity, State
immunity extends only to acts Jure imperii. The restrictive application of State
immunity is proper only when the proceedings arise out of commercial
transactions of the foreign sovereign, its commercial activities or economic
affairs.24
In Shauf v. Court of Appeals,25 we discussed the limitations of the State
immunity principle, thus:
It is a different matter where the public official is made to account in his
capacity as such for acts contrary to law and injurious to the rights of plaintiff.
As was clearly set forth by JustiGe Zaldivar in Director of the Bureau of
Telecommunications, et al. vs. Aligaen, etc., et al. : "Inasmuch as the State
authorizes only legal acts by its officers, unauthorized acts of government
officials or officers are not acts of the State, and an action against the
officials or officers by one whose rights have been invaded or violated by
such acts, for the protection of his rights, is not a suit against the State within
the rule of immunity of the State from suit. In the same tenor, it has been said
that an action at law or suit in equity against a State officer or the director of
a State department on the ground that, while claiming to act for the State, he
violates or invades the personal and property rights of the plaintiff, under an
unconstitutional act or under an assumption of authority which he does not
have, is not a suit against the State within the constitutional provision that the
State may not be sued without its consent." The rationale for this ruling is
that the doctrine of state immunity cannot be used as an instrument for
perpetrating an injustice.
xxxx
64
The aforecited authorities are clear on the matter. They state that the
doctrine of immunity from suit will not apply and may not be invoked where
the public official is being sued in his private and personal capacity as an
ordinary citizen. The cloak of protection afforded the officers and agents of
the government is removed the moment they are sued in their individual
capacity. This situation usually arises where the public official acts without
authority or in excess of the powers vested in him. It is a well-settled principle
of law that a public official may be liable in his personal private capacity for
whatever damage he may have caused by his act done with malice and in
bad faith, or beyond the scope of his authority or jurisdiction.26 (Emphasis
supplied.) In this case, the US respondents were sued in their official
capacity as commanding officers of the US Navy who had control and
supervision over the USS Guardian and its crew. The alleged act or omission
resulting in the unfortunate grounding of the USS Guardian on the TRNP was
committed while they we:re performing official military duties. Considering
that the satisfaction of a judgment against said officials will require remedial
actions and appropriation of funds by the US government, the suit is deemed
to be one against the US itself. The principle of State immunity therefore bars
the exercise of jurisdiction by this Court over the persons of respondents
Swift, Rice and Robling.
During the deliberations, Senior Associate Justice Antonio T. Carpio took the
position that the conduct of the US in this case, when its warship entered a
restricted area in violation of R.A. No. 10067 and caused damage to the
TRNP reef system, brings the matter within the ambit of Article 31 of the
United Nations Convention on the Law of the Sea (UNCLOS). He explained
that while historically, warships enjoy sovereign immunity from suit as
extensions of their flag State, Art. 31 of the UNCLOS creates an exception to
this rule in cases where they fail to comply with the rules and regulations of
the coastal State regarding passage through the latter's internal waters and
the territorial sea.
According to Justice Carpio, although the US to date has not ratified the
UNCLOS, as a matter of long-standing policy the US considers itself bound
by customary international rules on the "traditional uses of the oceans" as
codified in UNCLOS, as can be gleaned from previous declarations by former
Presidents Reagan and Clinton, and the US judiciary in the case of United
States v. Royal Caribbean Cruise Lines, Ltd.27
The international law of the sea is generally defined as "a body of treaty rules
arid customary norms governing the uses of the sea, the exploitation of its
resources, and the exercise of jurisdiction over maritime regimes. It is a
branch of public international law, regulating the relations of states with

respect to the uses of the oceans."28 The UNCLOS is a multilateral treaty
which was opened for signature on December 10, 1982 at Montego Bay,
Jamaica. It was ratified by the Philippines in 1984 but came into force on
November 16, 1994 upon the submission of the 60th ratification.
The UNCLOS is a product of international negotiation that seeks to balance
State sovereignty (mare clausum) and the principle of freedom of the high
seas (mare liberum).29 The freedom to use the world's marine waters is one
of the oldest customary principles of international law. 30 The UNCLOS gives
to the coastal State sovereign rights in varying degrees over the different
zones of the sea which are: 1) internal waters, 2) territorial sea, 3) contiguous
zone, 4) exclusive economic zone, and 5) the high seas. It also gives coastal
States more or less jurisdiction over foreign vessels depending on where the
vessel is located.31
Insofar as the internal waters and territorial sea is concerned, the Coastal
State exercises sovereignty, subject to the UNCLOS and other rules of
international law. Such sovereignty extends to the air space over the
territorial sea as well as to its bed and subsoil.32
In the case of warships,33 as pointed out by Justice Carpio, they continue to
enjoy sovereign immunity subject to the following exceptions:
Article 30
Non-compliance by warships with the laws and regulations of the coastal
State
If any warship does not comply with the laws and regulations of the coastal
State concerning passage through the territorial sea and disregards any
request for compliance therewith which is made to it, the coastal State may
require it to leave the territorial sea immediately.
Article 31
Responsibility of the flag State for damage caused by a warship
or other government ship operated for non-commercial purposes
The flag State shall bear international responsibility for any loss or damage to
the coastal State resulting from the non-compliance by a warship or other
government ship operated for non-commercial purposes with the laws and
regulations of the coastal State concerning passage through the territorial
65
sea or with the provisions of this Convention or other rules of international
law.
Article 32
Immunities of warships and other government ships operated for non-
commercial purposes
With such exceptions as are contained in subsection A and in articles 30 and
31, nothing in this Convention affects the immunities of warships and other
government ships operated for non-commercial purposes. (Emphasis
supplied.) A foreign warship's unauthorized entry into our internal waters with
resulting damage to marine resources is one situation in which the above
provisions may apply. But what if the offending warship is a non-party to the
UNCLOS, as in this case, the US?
An overwhelming majority - over 80% -- of nation states are now members of
UNCLOS, but despite this the US, the world's leading maritime power, has
not ratified it.
While the Reagan administration was instrumental in UNCLOS' negotiation
and drafting, the U.S. delegation ultimately voted against and refrained from
signing it due to concerns over deep seabed mining technology transfer
provisions contained in Part XI. In a remarkable, multilateral effort to induce
U.S. membership, the bulk of UNCLOS member states cooperated over the
succeeding decade to revise the objection.able provisions. The revisions
satisfied the Clinton administration, which signed the revised Part XI
implementing agreement in 1994. In the fall of 1994, President Clinton
transmitted UNCLOS and the Part XI implementing agreement to the Senate
requesting its advice and consent. Despite consistent support from President
Clinton, each of his successors, and an ideologically diverse array of
stakeholders, the Senate has since withheld the consent required for the
President to internationally bind the United States to UNCLOS.
While UNCLOS cleared the Senate Foreign Relations Committee (SFRC)
during the 108th and 110th Congresses, its progress continues to be
hamstrung by significant pockets of political ambivalence over U.S.
participation in international institutions. Most recently, 111 th Congress
SFRC Chairman Senator John Kerry included "voting out" UNCLOS for full
Senate consideration among his highest priorities. This did not occur, and no
Senate action has been taken on UNCLOS by the 112th Congress.34
Justice Carpio invited our attention to the policy statement given by President
Reagan on March 10, 1983 that the US will "recognize the rights of the other

, states in the waters off their coasts, as reflected in the convention
[UNCLOS], so long as the rights and freedom of the United States and others
under international law are recognized by such coastal states", and President
Clinton's reiteration of the US policy "to act in a manner consistent with its
[UNCLOS] provisions relating to traditional uses of the oceans and to
encourage other countries to do likewise." Since Article 31 relates to the
"traditional uses of the oceans," and "if under its policy, the US 'recognize[s]
the rights of the other states in the waters off their coasts,"' Justice Carpio
postulates that "there is more reason to expect it to recognize the rights of
other states in their internal waters, such as the Sulu Sea in this case."
As to the non-ratification by the US, Justice Carpio emphasizes that "the US'
refusal to join the UN CLOS was centered on its disagreement with UN
CLOS' regime of deep seabed mining (Part XI) which considers the oceans
and deep seabed commonly owned by mankind," pointing out that such "has
nothing to do with its [the US'] acceptance of customary international rules on
navigation."
It may be mentioned that even the US Navy Judge Advocate General's
Corps publicly endorses the ratification of the UNCLOS, as shown by the
following statement posted on its official website:
The Convention is in the national interest of the United States because it
establishes stable maritime zones, including a maximum outer limit for
territorial seas; codifies innocent passage, transit passage, and archipelagic
sea lanes passage rights; works against "jurisdictiomtl creep" by preventing
coastal nations from expanding their own maritime zones; and reaffirms
sovereign immunity of warships, auxiliaries anJ government aircraft.
xxxx
Economically, accession to the Convention would support our national
interests by enhancing the ability of the US to assert its sovereign rights over
the resources of one of the largest continental shelves in the world. Further, it
is the Law of the Sea Convention that first established the concept of a
maritime Exclusive Economic Zone out to 200 nautical miles, and recognized
the rights of coastal states to conserve and manage the natural resources in
this Zone.35
We fully concur with Justice Carpio's view that non-membership in the
UNCLOS does not mean that the US will disregard the rights of the
Philippines as a Coastal State over its internal waters and territorial sea. We
thus expect the US to bear "international responsibility" under Art. 31 in
66
connection with the USS Guardian grounding which adversely affected the
Tubbataha reefs. Indeed, it is difficult to imagine that our long-time ally and
trading partner, which has been actively supporting the country's efforts to
preserve our vital marine resources, would shirk from its obligation to
compensate the damage caused by its warship while transiting our internal
waters. Much less can we comprehend a Government exercising leadership
in international affairs, unwilling to comply with the UNCLOS directive for all
nations to cooperate in the global task to protect and preserve the marine
environment as provided in Article 197, viz:
Article 197
Cooperation on a global or regional basis
States shall cooperate on a global basis and, as appropriate, on a regional
basis, directly or through competent international organizations, in
formulating and elaborating international rules, standards and recommended
practices and procedures consistent with this Convention, for the protection
and preservation of the marine environment, taking into account
characteristic regional features.
In fine, the relevance of UNCLOS provisions to the present controversy is
beyond dispute. Although the said treaty upholds the immunity of warships
from the jurisdiction of Coastal States while navigating the.latter's territorial
sea, the flag States shall be required to leave the territorial '::;ea immediately
if they flout the laws and regulations of the Coastal State, and they will be
liable for damages caused by their warships or any other government vessel
operated for non-commercial purposes under Article 31.
Petitioners argue that there is a waiver of immunity from suit found in the
VFA. Likewise, they invoke federal statutes in the US under which agencies
of the US have statutorily waived their immunity to any action. Even under
the common law tort claims, petitioners asseverate that the US respondents
are liable for negligence, trespass and nuisance.
We are not persuaded.
The VFA is an agreement which defines the treatment of United States
troops and personnel visiting the Philippines to promote "common security
interests" between the US and the Philippines in the region. It provides for
the guidelines to govern such visits of military personnel, and further defines
the rights of the United States and the Philippine government in the matter of
criminal jurisdiction, movement of vessel and aircraft, importation and
exportation of equipment, materials and supplies.36 The invocation of US

federal tort laws and even common law is thus improper considering that it is
the VF A which governs disputes involving US military ships and crew
navigating Philippine waters in pursuance of the objectives of the agreement.
As it is, the waiver of State immunity under the VF A pertains only to criminal
jurisdiction and not to special civil actions such as the present petition for
issuance of a writ of Kalikasan. In fact, it can be inferred from Section 17,
Rule 7 of the Rules that a criminal case against a person charged with a
violation of an environmental law is to be filed separately:
SEC. 17. Institution of separate actions.-The filing of a petition for the
issuance of the writ of kalikasan shall not preclude the filing of separate civil,
criminal or administrative actions.
In any case, it is our considered view that a ruling on the application or non-
application of criminal jurisdiction provisions of the VF A to US personnel
who may be found responsible for the grounding of the USS Guardian, would
be premature and beyond the province of a petition for a writ of Kalikasan.
We also find it unnecessary at this point to determine whether such waiver of
State immunity is indeed absolute. In the same vein, we cannot grant
damages which have resulted from the violation of environmental laws. The
Rules allows the recovery of damages, including the collection of
administrative fines under R.A. No. 10067, in a separate civil suit or that
deemed instituted with the criminal action charging the same violation of an
environmental law.37
Section 15, Rule 7 enumerates the reliefs which may be granted in a petition
for issuance of a writ of Kalikasan, to wit:
SEC. 15. Judgment.-Within sixty (60) days from the time the petition is
submitted for decision, the court shall render judgment granting or denying
the privilege of the writ of kalikasan.
The reliefs that may be granted under the writ are the following:
(a) Directing respondent to permanently cease and desist from
committing acts or neglecting the performance of a duty in violation
of environmental laws resulting in environmental destruction or
damage;
67
(b) Directing the respondent public official, govemment agency,
private person or entity to protect, preserve, rehabilitate or restore
the environment;
(c) Directing the respondent public official, government agency,
private person or entity to monitor strict compliance with the decision
and orders of the court;
(d) Directing the respondent public official, government agency, or
private person or entity to make periodic reports on the execution of
the final judgment; and
(e) Such other reliefs which relate to the right of the people to a
balanced and healthful ecology or to the protection, preservation,
rehabilitation or restoration of the environment, except the award of
damages to individual petitioners. (Emphasis supplied.)
We agree with respondents (Philippine officials) in asserting that this petition
has become moot in the sense that the salvage operation sought to be
enjoined or restrained had already been accomplished when petitioners
sought recourse from this Court. But insofar as the directives to Philippine
respondents to protect and rehabilitate the coral reef stn icture and marine
habitat adversely affected by the grounding incident are concerned,
petitioners are entitled to these reliefs notwithstanding the completion of the
removal of the USS Guardian from the coral reef. However, we are mindful of
the fact that the US and Philippine governments both expressed readiness to
negotiate and discuss the matter of compensation for the damage caused by
the USS Guardian. The US Embassy has also declared it is closely
coordinating with local scientists and experts in assessing the extent of the
damage and appropriate methods of rehabilitation.
Exploring avenues for settlement of environmental cases is not proscribed by
the Rules. As can be gleaned from the following provisions, mediation and
settlement are available for the consideration of the parties, and which
dispute resolution methods are encouraged by the court, to wit:
RULE3
xxxx
SEC. 3. Referral to mediation.-At the start of the pre-trial conference, the
court shall inquire from the parties if they have settled the dispute; otherwise,

the court shall immediately refer the parties or their counsel, if authorized by
their clients, to the Philippine Mediation Center (PMC) unit for purposes of
mediation. If not available, the court shall refer the case to the clerk of court
or legal researcher for mediation.
Mediation must be conducted within a non-extendible period of thirty (30)
days from receipt of notice of referral to mediation.
The mediation report must be submitted within ten (10) days from the
expiration of the 30-day period.
SEC. 4. Preliminary conference.-If mediation fails, the court will schedule the
continuance of the pre-trial. Before the scheduled date of continuance, the
court may refer the case to the branch clerk of court for a preliminary
conference for the following purposes:
(a) To assist the parties in reaching a settlement;
xxxx
SEC. 5. Pre-trial conference; consent decree.-The judge shall put the parties
and their counsels under oath, and they shall remain under oath in all pre-
trial conferences.
The judge shall exert best efforts to persuade the parties to arrive at a
settlement of the dispute. The judge may issue a consent decree approving
the agreement between the parties in accordance with law, morals, public
order and public policy to protect the right of the people to a balanced and
healthful ecology.
xxxx
SEC. 10. Efforts to settle.- The court shall endeavor to make the parties to
agree to compromise or settle in accordance with law at any stage of the
proceedings before rendition of judgment. (Underscoring supplied.)
The Court takes judicial notice of a similar incident in 2009 when a guided-
missile cruiser, the USS Port Royal, ran aground about half a mile off the
Honolulu Airport Reef Runway and remained stuck for four days. After
spending $6.5 million restoring the coral reef, the US government was
reported to have paid the State of Hawaii $8.5 million in settlement over coral
reef damage caused by the grounding.38
68
To underscore that the US government is prepared to pay appropriate
compensation for the damage caused by the USS Guardian grounding, the
US Embassy in the Philippines has announced the formation of a US
interdisciplinary scientific team which will "initiate discussions with the
Government of the Philippines to review coral reef rehabilitation options in
Tubbataha, based on assessments by Philippine-based marine scientists."
The US team intends to "help assess damage and remediation options, in
coordination with the Tubbataha Management Office, appropriate Philippine
government entities, non-governmental organizations, and scientific experts
from Philippine universities."39
A rehabilitation or restoration program to be implemented at the cost of the
violator is also a major relief that may be obtained under a judgment
rendered in a citizens' suit under the Rules, viz:
RULES
SECTION 1. Reliefs in a citizen suit.-If warranted, the court may grant to the
plaintiff proper reliefs which shall include the protection, preservation or
rehabilitation of the environment and the payment of attorney's fees, costs of
suit and other litigation expenses. It may also require the violator to submit a
program of rehabilitation or restoration of the environment, the costs of which
shall be borne by the violator, or to contribute to a special trust fund for that
purpose subject to the control of the court.1âwphi1
In the light of the foregoing, the Court defers to the Executive Branch on the
matter of compensation and rehabilitation measures through diplomatic
channels. Resolution of these issues impinges on our relations with another
State in the context of common security interests under the VFA. It is settled
that "[t]he conduct of the foreign relations of our government is committed by
the Constitution to the executive and legislative-"the political" --departments
of the government, and the propriety of what may be done in the exercise of
this political power is not subject to judicial inquiry or decision."40
On the other hand, we cannot grant the additional reliefs prayed for in the
petition to order a review of the VFA and to nullify certain immunity provisions
thereof.
As held in BAYAN (Bagong Alyansang Makabayan) v. Exec. Sec.
Zamora,41 the VFA was duly concurred in by the Philippine Senate and has
been recognized as a treaty by the United States as attested and certified by
the duly authorized representative of the United States government. The VF
A being a valid and binding agreement, the parties are required as a matter
 69

of international law to abide by its terms and provisions.42 The present

petition under the Rules is not the proper remedy to assail the
constitutionality of its provisions. WHEREFORE, the petition for the issuance
of the privilege of the Writ of Kalikasan is hereby DENIED.

No pronouncement as to costs.

SO ORDERED.
 70

Republic of the Philippines SANCHEZ, FREDDIE SANCHEZ AKA FREDDIE RIVERA, EDWIN
SUPREME COURT MARIANO, AKA JESSIE DOLORES SANGALANG, ET AL., respondents.
Manila
Luna, Sison & Manas Law Office for petitioners.
EN BANC

G.R. No. 76607 February 26, 1990

UNITED STATES OF AMERICA, FREDERICK M. SMOUSE AND YVONNE
REEVES, petitioners,
vs.
HON. ELIODORO B. GUINTO, Presiding Judge, Branch LVII, Regional
Trial Court, Angeles City, ROBERTO T. VALENCIA, EMERENCIANA C.
TANGLAO, AND PABLO C. DEL PILAR, respondents.
G.R. No. 79470 February 26, 1990
UNITED STATES OF AMERICA, ANTHONY LAMACHIA, T/SGT. USAF,
WILFREDO BELSA, PETER ORASCION AND ROSE
CARTALLA, petitioners,
vs.
HON. RODOLFO D. RODRIGO, as Presiding Judge of Branch 7,
Regional Trial Court (BAGUIO CITY), La Trinidad, Benguet and FABIAN
GENOVE, respondents.
G.R. No. 80018 February 26, 1990
UNITED STATES OF AMERICA, TOMI J. KINGI, DARREL D. DYE and
STEVEN F. BOSTICK, petitioners,
vs.
HON. JOSEFINA D. CEBALLOS, As Presiding Judge, Regional Trial
Court, Branch 66, Capas, Tarlac, and LUIS BAUTISTA, respondents.
G.R. No. 80258 February 26, 1990
UNITED STATES OF AMERICA, MAJOR GENERAL MICHAEL P. C.
CARNS, AIC ERNEST E. RIVENBURGH, AIC ROBIN BLEVINS, SGT.
NOEL A. GONZALES, SGT. THOMAS MITCHELL, SGT. WAYNE L.
BENJAMIN, ET AL., petitioners,
vs.
HON. CONCEPCION S. ALARCON VERGARA, as Presiding Judge,
Branch 62 REGIONAL TRIAL COURT, Angeles City, and RICKY
CRUZ, J.:
These cases have been consolidated because they all involve the
doctrine of state immunity. The United States of America was not
impleaded in the complaints below but has moved to dismiss on the
ground that they are in effect suits against it to which it has not
consented. It is now contesting the denial of its motions by the
respondent judges.
In G.R. No. 76607, the private respondents are suing several officers of
the U.S. Air Force stationed in Clark Air Base in connection with the
bidding conducted by them for contracts for barber services in the said
base.
On February 24, 1986, the Western Pacific Contracting Office, Okinawa
Area Exchange, U.S. Air Force, solicited bids for such contracts
through its contracting officer, James F. Shaw. Among those who
submitted their bids were private respondents Roberto T. Valencia,
Emerenciana C. Tanglao, and Pablo C. del Pilar. Valencia had been a
concessionaire inside Clark for 34 years; del Pilar for 12 years; and
Tanglao for 50 years.
The bidding was won by Ramon Dizon, over the objection of the private
respondents, who claimed that he had made a bid for four facilities,
including the Civil Engineering Area, which was not included in the
invitation to bid.
The private respondents complained to the Philippine Area Exchange
(PHAX). The latter, through its representatives, petitioners Yvonne
Reeves and Frederic M. Smouse explained that the Civil Engineering
concession had not been awarded to Dizon as a result of the February
24, 1986 solicitation. Dizon was already operating this concession, then
known as the NCO club concession, and the expiration of the contract
had been extended from June 30, 1986 to August 31, 1986. They further

explained that the solicitation of the CE barbershop would be available
only by the end of June and the private respondents would be notified.
On June 30, 1986, the private respondents filed a complaint in the court
below to compel PHAX and the individual petitioners to cancel the
award to defendant Dizon, to conduct a rebidding for the barbershop
concessions and to allow the private respondents by a writ of
preliminary injunction to continue operating the concessions pending
litigation. 1
Upon the filing of the complaint, the respondent court issued an ex
parte order directing the individual petitioners to maintain the status
quo.
On July 22, 1986, the petitioners filed a motion to dismiss and
opposition to the petition for preliminary injunction on the ground that
the action was in effect a suit against the United States of America,
which had not waived its non-suability. The individual defendants, as
official employees of the U.S. Air Force, were also immune from suit.
On the same date, July 22, 1986, the trial court denied the application
for a writ of preliminary injunction.
On October 10, 1988, the trial court denied the petitioners' motion to
dismiss, holding in part as follows:
From the pleadings thus far presented to this Court by
the parties, the Court's attention is called by the
relationship between the plaintiffs as well as the
defendants, including the US Government, in that prior
to the bidding or solicitation in question, there was a
binding contract between the plaintiffs as well as the
defendants, including the US Government. By virtue of
said contract of concession it is the Court's
understanding that neither the US Government nor the
herein principal defendants would become the
employer/s of the plaintiffs but that the latter are the
employers themselves of the barbers, etc. with the
employer, the plaintiffs herein, remitting the stipulated
percentage of commissions to the Philippine Area
Exchange. The same circumstance would become in
effect when the Philippine Area Exchange opened for
bidding or solicitation the questioned barber shop
71
concessions. To this extent, therefore, indeed a
commercial transaction has been entered, and for
purposes of the said solicitation, would necessarily be
entered between the plaintiffs as well as the defendants.
The Court, further, is of the view that Article XVIII of the
RP-US Bases Agreement does not cover such kind of
services falling under the concessionaireship, such as a
barber shop concession. 2
On December 11, 1986, following the filing of the herein petition
for certiorari and prohibition with preliminary injunction, we issued a
temporary restraining order against further proceedings in the court below. 3
In G.R. No. 79470, Fabian Genove filed a complaint for damages against
petitioners Anthony Lamachia, Wilfredo Belsa, Rose Cartalla and Peter
Orascion for his dismissal as cook in the U.S. Air Force Recreation Center at
the John Hay Air Station in Baguio City. It had been ascertained after
investigation, from the testimony of Belsa Cartalla and Orascion, that Genove
had poured urine into the soup stock used in cooking the vegetables served
to the club customers. Lamachia, as club manager, suspended him and
thereafter referred the case to a board of arbitrators conformably to the
collective bargaining agreement between the Center and its employees. The
board unanimously found him guilty and recommended his dismissal. This
was effected on March 5, 1986, by Col. David C. Kimball, Commander of the
3rd Combat Support Group, PACAF Clark Air Force Base. Genove's reaction
was to file Ms complaint in the Regional Trial Court of Baguio City against the
individual petitioners. 4
On March 13, 1987, the defendants, joined by the United States of America,
moved to dismiss the complaint, alleging that Lamachia, as an officer of the
U.S. Air Force stationed at John Hay Air Station, was immune from suit for
the acts done by him in his official capacity. They argued that the suit was in
effect against the United States, which had not given its consent to be sued.
This motion was denied by the respondent judge on June 4, 1987, in an
order which read in part:
It is the understanding of the Court, based on the allegations
of the complaint — which have been hypothetically admitted
by defendants upon the filing of their motion to dismiss —
that although defendants acted initially in their official
capacities, their going beyond what their functions called for

brought them out of the protective mantle of whatever
immunities they may have had in the beginning. Thus, the
allegation that the acts complained of were illegal, done. with
extreme bad faith and with pre-conceived sinister plan to
harass and finally dismiss the plaintiff, gains significance. 5
The petitioners then came to this Court seeking certiorari and prohibition with
preliminary injunction.
In G.R. No. 80018, Luis Bautista, who was employed as a barracks boy in
Camp O' Donnell, an extension of Clark Air Base, was arrested following a
buy-bust operation conducted by the individual petitioners herein, namely,
Tomi J. King, Darrel D. Dye and Stephen F. Bostick, officers of the U.S. Air
Force and special agents of the Air Force Office of Special Investigators
(AFOSI). On the basis of the sworn statements made by them, an
information for violation of R.A. 6425, otherwise known as the Dangerous
Drugs Act, was filed against Bautista in the Regional Trial Court of Tarlac.
The above-named officers testified against him at his trial. As a result of the
filing of the charge, Bautista was dismissed from his employment. He then
filed a complaint for damages against the individual petitioners herein
claiming that it was because of their acts that he was removed. 6
During the period for filing of the answer, Mariano Y. Navarro a special
counsel assigned to the International Law Division, Office of the Staff Judge
Advocate of Clark Air Base, entered a special appearance for the defendants
and moved for an extension within which to file an "answer and/or other
pleadings." His reason was that the Attorney General of the United States
had not yet designated counsel to represent the defendants, who were being
sued for their official acts. Within the extended period, the defendants,
without the assistance of counsel or authority from the U.S. Department of
Justice, filed their answer. They alleged therein as affirmative defenses that
they had only done their duty in the enforcement of the laws of the
Philippines inside the American bases pursuant to the RP-US Military Bases
Agreement.
On May 7, 1987, the law firm of Luna, Sison and Manas, having been
retained to represent the defendants, filed with leave of court a motion to
withdraw the answer and dismiss the complaint. The ground invoked was
that the defendants were acting in their official capacity when they did the
acts complained of and that the complaint against them was in effect a suit
against the United States without its consent.
72
The motion was denied by the respondent judge in his order dated
September 11, 1987, which held that the claimed immunity under the Military
Bases Agreement covered only criminal and not civil cases. Moreover, the
defendants had come under the jurisdiction of the court when they submitted
their answer.7
Following the filing of the herein petition for certiorari and prohibition with
preliminary injunction, we issued on October 14, 1987, a temporary
restraining order. 8
In G.R. No. 80258, a complaint for damages was filed by the private
respondents against the herein petitioners (except the United States of
America), for injuries allegedly sustained by the plaintiffs as a result of the
acts of the defendants. 9 There is a conflict of factual allegations here.
According to the plaintiffs, the defendants beat them up, handcuffed them
and unleashed dogs on them which bit them in several parts of their bodies
and caused extensive injuries to them. The defendants deny this and claim
the plaintiffs were arrested for theft and were bitten by the dogs because they
were struggling and resisting arrest, The defendants stress that the dogs
were called off and the plaintiffs were immediately taken to the medical
center for treatment of their wounds.
In a motion to dismiss the complaint, the United States of America and the
individually named defendants argued that the suit was in effect a suit
against the United States, which had not given its consent to be sued. The
defendants were also immune from suit under the RP-US Bases Treaty for
acts done by them in the performance of their official functions.
The motion to dismiss was denied by the trial court in its order dated August
10, 1987, reading in part as follows:
The defendants certainly cannot correctly argue that they are
immune from suit. The allegations, of the complaint which is
sought to be dismissed, had to be hypothetically admitted
and whatever ground the defendants may have, had to be
ventilated during the trial of the case on the merits. The
complaint alleged criminal acts against the individually-
named defendants and from the nature of said acts it could
not be said that they are Acts of State, for which immunity
should be invoked. If the Filipinos themselves are duty
bound to respect, obey and submit themselves to the laws of
the country, with more reason, the members of the United
States Armed Forces who are being treated as guests of this

country should respect, obey and submit themselves to its
laws. 10
and so was the motion for reconsideration. The defendants submitted their
answer as required but subsequently filed their petition for certiorari and
prohibition with preliminary injunction with this Court. We issued a temporary
restraining order on October 27, 1987. 11
II
The rule that a state may not be sued without its consent, now expressed in
Article XVI, Section 3, of the 1987 Constitution, is one of the generally
accepted principles of international law that we have adopted as part of the
law of our land under Article II, Section 2. This latter provision merely
reiterates a policy earlier embodied in the 1935 and 1973 Constitutions and
also intended to manifest our resolve to abide by the rules of the international
community.
Even without such affirmation, we would still be bound by the generally
accepted principles of international law under the doctrine of incorporation.
Under this doctrine, as accepted by the majority of states, such principles are
deemed incorporated in the law of every civilized state as a condition and
consequence of its membership in the society of nations. Upon its admission
to such society, the state is automatically obligated to comply with these
principles in its relations with other states.
As applied to the local state, the doctrine of state immunity is based on the
justification given by Justice Holmes that "there can be no legal right against
the authority which makes the law on which the right depends." 12 There are
other practical reasons for the enforcement of the doctrine. In the case of the
foreign state sought to be impleaded in the local jurisdiction, the added
inhibition is expressed in the maxim par in parem, non habet imperium. All
states are sovereign equals and cannot assert jurisdiction over one another.
A contrary disposition would, in the language of a celebrated case, "unduly
vex the peace of nations." 13
While the doctrine appears to prohibit only suits against the state without its
consent, it is also applicable to complaints filed against officials of the state
for acts allegedly performed by them in the discharge of their duties. The rule
is that if the judgment against such officials will require the state itself to
perform an affirmative act to satisfy the same, such as the appropriation of
the amount needed to pay the damages awarded against them, the suit must
be regarded as against the state itself although it has not been formally
73
impleaded. 14 In such a situation, the state may move to dismiss the
complaint on the ground that it has been filed without its consent.
The doctrine is sometimes derisively called "the royal prerogative of
dishonesty" because of the privilege it grants the state to defeat any
legitimate claim against it by simply invoking its non-suability. That is hardly
fair, at least in democratic societies, for the state is not an unfeeling tyrant
unmoved by the valid claims of its citizens. In fact, the doctrine is not
absolute and does not say the state may not be sued under any
circumstance. On the contrary, the rule says that the state may not be sued
without its consent, which clearly imports that it may be sued if it consents.
The consent of the state to be sued may be manifested expressly or
impliedly. Express consent may be embodied in a general law or a special
law. Consent is implied when the state enters into a contract or it itself
commences litigation.
The general law waiving the immunity of the state from suit is found in Act
No. 3083, under which the Philippine government "consents and submits to
be sued upon any moneyed claim involving liability arising from contract,
express or implied, which could serve as a basis of civil action between
private parties." In Merritt v. Government of the Philippine Islands, 15 a
special law was passed to enable a person to sue the government for an
alleged tort. When the government enters into a contract, it is deemed to
have descended to the level of the other contracting party and divested of its
sovereign immunity from suit with its implied consent. 16 Waiver is also
implied when the government files a complaint, thus opening itself to a
counterclaim. 17
The above rules are subject to qualification. Express consent is effected only
by the will of the legislature through the medium of a duly enacted
statute. 18 We have held that not all contracts entered into by the government
will operate as a waiver of its non-suability; distinction must be made
between its sovereign and proprietary acts. 19 As for the filing of a complaint
by the government, suability will result only where the government is claiming
affirmative relief from the defendant. 20
In the case of the United States of America, the customary rule of
international law on state immunity is expressed with more specificity in the
RP-US Bases Treaty. Article III thereof provides as follows:
It is mutually agreed that the United States shall have the
rights, power and authority within the bases which are

necessary for the establishment, use, operation and defense
thereof or appropriate for the control thereof and all the
rights, power and authority within the limits of the territorial
waters and air space adjacent to, or in the vicinity of, the
bases which are necessary to provide access to them or
appropriate for their control.
The petitioners also rely heavily on Baer v. Tizon, 21 along with several other
decisions, to support their position that they are not suable in the cases
below, the United States not having waived its sovereign immunity from suit.
It is emphasized that in Baer, the Court held:
The invocation of the doctrine of immunity from suit of a
foreign state without its consent is appropriate. More
specifically, insofar as alien armed forces is concerned, the
starting point is Raquiza v. Bradford, a 1945 decision. In
dismissing a habeas corpus petition for the release of
petitioners confined by American army authorities, Justice
Hilado speaking for the Court, cited Coleman v. Tennessee,
where it was explicitly declared: 'It is well settled that a
foreign army, permitted to march through a friendly country
or to be stationed in it, by permission of its government or
sovereign, is exempt from the civil and criminal jurisdiction of
the place.' Two years later, in Tubb and Tedrow v. Griess,
this Court relied on the ruling in Raquiza v. Bradford and
cited in support thereof excerpts from the works of the
following authoritative writers: Vattel, Wheaton, Hall,
Lawrence, Oppenheim, Westlake, Hyde, and McNair and
Lauterpacht. Accuracy demands the clarification that after
the conclusion of the Philippine-American Military Bases
Agreement, the treaty provisions should control on such
matter, the assumption being that there was a manifestation
of the submission to jurisdiction on the part of the foreign
power whenever appropriate. More to the point is Syquia v.
Almeda Lopez, where plaintiffs as lessors sued the
Commanding General of the United States Army in the
Philippines, seeking the restoration to them of the apartment
buildings they owned leased to the United States armed
forces stationed in the Manila area. A motion to dismiss on
the ground of non-suability was filed and upheld by
respondent Judge. The matter was taken to this Court in a
mandamus proceeding. It failed. It was the ruling that
respondent Judge acted correctly considering that the 4
action must be considered as one against the U.S.
74
Government. The opinion of Justice Montemayor continued:
'It is clear that the courts of the Philippines including the
Municipal Court of Manila have no jurisdiction over the
present case for unlawful detainer. The question of lack of
jurisdiction was raised and interposed at the very beginning
of the action. The U.S. Government has not given its
consent to the filing of this suit which is essentially against
her, though not in name. Moreover, this is not only a case of
a citizen filing a suit against his own Government without the
latter's consent but it is of a citizen firing an action against a
foreign government without said government's consent,
which renders more obvious the lack of jurisdiction of the
courts of his country. The principles of law behind this rule
are so elementary and of such general acceptance that we
deem it unnecessary to cite authorities in support thereof
then came Marvel Building Corporation v. Philippine War
Damage Commission, where respondent, a United States
Agency established to compensate damages suffered by the
Philippines during World War II was held as falling within the
above doctrine as the suit against it would eventually be a
charge against or financial liability of the United States
Government because ... , the Commission has no funds of
its own for the purpose of paying money judgments.' The
Syquia ruling was again explicitly relied upon in Marquez Lim
v. Nelson, involving a complaint for the recovery of a motor
launch, plus damages, the special defense interposed being
'that the vessel belonged to the United States Government,
that the defendants merely acted as agents of said
Government, and that the United States Government is
therefore the real party in interest.' So it was
in Philippine Alien Property Administration v. Castelo, where
it was held that a suit against Alien Property Custodian and
the Attorney General of the United States involving vested
property under the Trading with the Enemy Act is in
substance a suit against the United States. To the same
effect is Parreno v. McGranery, as the following excerpt from
the opinion of justice Tuazon clearly shows: 'It is a widely
accepted principle of international law, which is made a part
of the law of the land (Article II, Section 3 of the
Constitution), that a foreign state may not be brought to suit
before the courts of another state or its own courts without
its consent.' Finally, there is Johnson v. Turner, an appeal by
the defendant, then Commanding General, Philippine
Command (Air Force, with office at Clark Field) from a

decision ordering the return to plaintiff of the confiscated
military payment certificates known as scrip money. In
reversing the lower court decision, this Tribunal, through
Justice Montemayor, relied on Syquia v. Almeda Lopez,
explaining why it could not be sustained.
It bears stressing at this point that the above observations do not confer on
the United States of America a blanket immunity for all acts done by it or its
agents in the Philippines. Neither may the other petitioners claim that they
are also insulated from suit in this country merely because they have acted
as agents of the United States in the discharge of their official functions.
There is no question that the United States of America, like any other state,
will be deemed to have impliedly waived its non-suability if it has entered into
a contract in its proprietary or private capacity. It is only when the contract
involves its sovereign or governmental capacity that no such waiver may be
implied. This was our ruling in UnitedStates of America v. Ruiz, 22 where the
transaction in question dealt with the improvement of the wharves in the
naval installation at Subic Bay. As this was a clearly governmental function,
we held that the contract did not operate to divest the United States of its
sovereign immunity from suit. In the words of Justice Vicente Abad Santos:
The traditional rule of immunity exempts a State from being
sued in the courts of another State without its consent or
waiver. This rule is a necessary consequence of the
principles of independence and equality of States. However,
the rules of International Law are not petrified; they are
constantly developing and evolving. And because the
activities of states have multiplied, it has been necessary to
distinguish them — between sovereign and governmental
acts (jure imperii) and private, commercial and proprietary
acts (jure gestionis). The result is that State immunity now
extends only to acts jure imperii The restrictive application of
State immunity is now the rule in the United States, the
United kingdom and other states in Western Europe.
xxx xxx xxx
The restrictive application of State immunity is proper only
when the proceedings arise out of commercial transactions
of the foreign sovereign, its commercial activities or
economic affairs. Stated differently, a State may be said to
have descended to the level of an individual and can thus be
75
deemed to have tacitly given its consent to be sued only
when it enters into business contracts. It does not apply
where the contract relates to the exercise of its sovereign
functions. In this case the projects are an integral part of the
naval base which is devoted to the defense of both the
United States and the Philippines, indisputably a function of
the government of the highest order; they are not utilized for
nor dedicated to commercial or business purposes.
The other petitioners in the cases before us all aver they have acted in the
discharge of their official functions as officers or agents of the United States.
However, this is a matter of evidence. The charges against them may not be
summarily dismissed on their mere assertion that their acts are imputable to
the United States of America, which has not given its consent to be sued. In
fact, the defendants are sought to be held answerable for personal torts in
which the United States itself is not involved. If found liable, they and they
alone must satisfy the judgment.
In Festejo v. Fernando, 23 a bureau director, acting without any authority
whatsoever, appropriated private land and converted it into public irrigation
ditches. Sued for the value of the lots invalidly taken by him, he moved to
dismiss the complaint on the ground that the suit was in effect against the
Philippine government, which had not given its consent to be sued. This
Court sustained the denial of the motion and held that the doctrine of state
immunity was not applicable. The director was being sued in his private
capacity for a personal tort.
With these considerations in mind, we now proceed to resolve the cases at
hand.
III
It is clear from a study of the records of G.R. No. 80018 that the individually-
named petitioners therein were acting in the exercise of their official functions
when they conducted the buy-bust operation against the complainant and
thereafter testified against him at his trial. The said petitioners were in fact
connected with the Air Force Office of Special Investigators and were
charged precisely with the function of preventing the distribution, possession
and use of prohibited drugs and prosecuting those guilty of such acts. It
cannot for a moment be imagined that they were acting in their private or
unofficial capacity when they apprehended and later testified against the
complainant. It follows that for discharging their duties as agents of the
United States, they cannot be directly impleaded for acts imputable to their

principal, which has not given its consent to be sued. As we observed
in Sanders v. Veridiano: 24
Given the official character of the above-described letters,
we have to conclude that the petitioners were, legally
speaking, being sued as officers of the United States
government. As they have acted on behalf of that
government, and within the scope of their authority, it is that
government, and not the petitioners personally, that is
responsible for their acts.
The private respondent invokes Article 2180 of the Civil Code which holds
the government liable if it acts through a special agent. The argument, it
would seem, is premised on the ground that since the officers are designated
"special agents," the United States government should be liable for their
torts.
There seems to be a failure to distinguish between suability and liability and
a misconception that the two terms are synonymous. Suability depends on
the consent of the state to be sued, liability on the applicable law and the
established facts. The circumstance that a state is suable does not
necessarily mean that it is liable; on the other hand, it can never be held
liable if it does not first consent to be sued. Liability is not conceded by the
mere fact that the state has allowed itself to be sued. When the state does
waive its sovereign immunity, it is only giving the plaintiff the chance to
prove, if it can, that the defendant is liable.
The said article establishes a rule of liability, not suability. The government
may be held liable under this rule only if it first allows itself to be sued
through any of the accepted forms of consent.
Moreover, the agent performing his regular functions is not a special agent
even if he is so denominated, as in the case at bar. No less important, the
said provision appears to regulate only the relations of the local state with its
inhabitants and, hence, applies only to the Philippine government and not to
foreign governments impleaded in our courts.
We reject the conclusion of the trial court that the answer filed by the special
counsel of the Office of the Sheriff Judge Advocate of Clark Air Base was a
submission by the United States government to its jurisdiction. As we noted
in Republic v. Purisima, 25 express waiver of immunity cannot be made by a
mere counsel of the government but must be effected through a duly-enacted
76
statute. Neither does such answer come under the implied forms of consent
as earlier discussed.
But even as we are certain that the individual petitioners in G.R. No. 80018
were acting in the discharge of their official functions, we hesitate to make
the same conclusion in G.R. No. 80258. The contradictory factual allegations
in this case deserve in our view a closer study of what actually happened to
the plaintiffs. The record is too meager to indicate if the defendants were
really discharging their official duties or had actually exceeded their authority
when the incident in question occurred. Lacking this information, this Court
cannot directly decide this case. The needed inquiry must first be made by
the lower court so it may assess and resolve the conflicting claims of the
parties on the basis of the evidence that has yet to be presented at the trial.
Only after it shall have determined in what capacity the petitioners were
acting at the time of the incident in question will this Court determine, if still
necessary, if the doctrine of state immunity is applicable.
In G.R. No. 79470, private respondent Genove was employed as a cook in
the Main Club located at the U.S. Air Force Recreation Center, also known
as the Open Mess Complex, at John Hay Air Station. As manager of this
complex, petitioner Lamachia is responsible for eleven diversified activities
generating an annual income of $2 million. Under his executive management
are three service restaurants, a cafeteria, a bakery, a Class VI store, a coffee
and pantry shop, a main cashier cage, an administrative office, and a
decentralized warehouse which maintains a stock level of $200,000.00 per
month in resale items. He supervises 167 employees, one of whom was
Genove, with whom the United States government has concluded a
collective bargaining agreement.
From these circumstances, the Court can assume that the restaurant
services offered at the John Hay Air Station partake of the nature of a
business enterprise undertaken by the United States government in its
proprietary capacity. Such services are not extended to the American
servicemen for free as a perquisite of membership in the Armed Forces of
the United States. Neither does it appear that they are exclusively offered to
these servicemen; on the contrary, it is well known that they are available to
the general public as well, including the tourists in Baguio City, many of
whom make it a point to visit John Hay for this reason. All persons availing
themselves of this facility pay for the privilege like all other customers as in
ordinary restaurants. Although the prices are concededly reasonable and
relatively low, such services are undoubtedly operated for profit, as a
commercial and not a governmental activity.

The consequence of this finding is that the petitioners cannot invoke the
doctrine of state immunity to justify the dismissal of the damage suit against
them by Genove. Such defense will not prosper even if it be established that
they were acting as agents of the United States when they investigated and
later dismissed Genove. For that matter, not even the United States
government itself can claim such immunity. The reason is that by entering
into the employment contract with Genove in the discharge of its proprietary
functions, it impliedly divested itself of its sovereign immunity from suit.
But these considerations notwithstanding, we hold that the complaint against
the petitioners in the court below must still be dismissed. While suable, the
petitioners are nevertheless not liable. It is obvious that the claim for
damages cannot be allowed on the strength of the evidence before us, which
we have carefully examined.
The dismissal of the private respondent was decided upon only after a
thorough investigation where it was established beyond doubt that he had
polluted the soup stock with urine. The investigation, in fact, did not stop
there. Despite the definitive finding of Genove's guilt, the case was still
referred to the board of arbitrators provided for in the collective bargaining
agreement. This board unanimously affirmed the findings of the investigators
and recommended Genove's dismissal. There was nothing arbitrary about
the proceedings. The petitioners acted quite properly in terminating the
private respondent's employment for his unbelievably nauseating act. It is
surprising that he should still have the temerity to file his complaint for
damages after committing his utterly disgusting offense.
Concerning G.R. No. 76607, we also find that the barbershops subject of the
concessions granted by the United States government are commercial
enterprises operated by private person's. They are not agencies of the
United States Armed Forces nor are their facilities demandable as a matter
of right by the American servicemen. These establishments provide for the
grooming needs of their customers and offer not only the basic haircut and
shave (as required in most military organizations) but such other amenities
as shampoo, massage, manicure and other similar indulgences. And all for a
fee. Interestingly, one of the concessionaires, private respondent Valencia,
was even sent abroad to improve his tonsorial business, presumably for the
benefit of his customers. No less significantly, if not more so, all the
barbershop concessionaires are under the terms of their contracts, required
to remit to the United States government fixed commissions in consideration
of the exclusive concessions granted to them in their respective areas.
77
This being the case, the petitioners cannot plead any immunity from the
complaint filed by the private respondents in the court below. The contracts
in question being decidedly commercial, the conclusion reached in the United
States of America v. Ruiz case cannot be applied here.
The Court would have directly resolved the claims against the defendants as
we have done in G.R. No. 79470, except for the paucity of the record in the
case at hand. The evidence of the alleged irregularity in the grant of the
barbershop concessions is not before us. This means that, as in G.R. No.
80258, the respondent court will have to receive that evidence first, so it can
later determine on the basis thereof if the plaintiffs are entitled to the relief
they seek. Accordingly, this case must also be remanded to the court below
for further proceedings.
IV
There are a number of other cases now pending before us which also involve
the question of the immunity of the United States from the jurisdiction of the
Philippines. This is cause for regret, indeed, as they mar the traditional
friendship between two countries long allied in the cause of democracy. It is
hoped that the so-called "irritants" in their relations will be resolved in a spirit
of mutual accommodation and respect, without the inconvenience and
asperity of litigation and always with justice to both parties.
WHEREFORE, after considering all the above premises, the Court hereby
renders judgment as follows:
1. In G.R. No. 76607, the petition is DISMISSED and the
respondent judge is directed to proceed with the hearing and
decision of Civil Case No. 4772. The temporary restraining
order dated December 11, 1986, is LIFTED.
2. In G.R. No. 79470, the petition is GRANTED and Civil
Case No. 829-R(298) is DISMISSED.
3. In G.R. No. 80018, the petition is GRANTED and Civil
Case No. 115-C-87 is DISMISSED. The temporary
restraining order dated October 14, 1987, is made
permanent.
4. In G.R. No. 80258, the petition is DISMISSED and the
respondent court is directed to proceed with the hearing and
 78

decision of Civil Case No. 4996. The temporary restraining

order dated October 27, 1987, is LIFTED.

All without any pronouncement as to costs.

SO ORDERED.

SECOND DIVISION
G.R. No. 206484, June 29, 2016
DEPARTMENT OF TRANSPORTATION AND COMMUNICATIONS
(DOTC), Petitioner, v. SPOUSES VICENTE ABECINA AND MARIA
CLEOFE ABECINA, Respondents.
DECISION
BRION, J.:
This petition for review on certiorari seeks to reverse and set aside
the March 20, 2013 decision of the Court of Appeals (CA) in CA-G.R. CV
No. 937951 affirming the decision of the Regional Trial Court (RTC) of Daet,
Camarines Norte, Branch 39, in Civil Case No. 7355.2 The RTC ordered the
Department of Transportation and Communications (DOTC) to vacate the
respondents' properties and to pay them actual and moral damages.
ANTECEDENTS
Respondent spouses Vicente and Maria Cleofe Abecina
(respondents/spouses Abecina) are the registered owners of five parcels of
land in Sitio Paltik, Barrio Sta. Rosa, Jose Panganiban, Camarines Norte.
The properties are covered by Transfer Certificates of Title (TCT) Nos. T-
25094, T-25095, T-25096, T-25097, and T-25098.3chanrobleslaw
In February 1993, the DOTC awarded Digitel Telecommunications
Philippines, Inc. (Digitel) a contract for the management, operation,
maintenance, and development of a Regional Telecommunications
Development Project (RTDP) under the National Telephone Program, Phase
I, Tranche 1 (NTPI-1)4chanrobleslaw
The DOTC and Digitel subsequently entered into several Facilities
Management Agreements (FMA) for Digitel to manage, operate, maintain,
and develop the RTDP and NTPI-1 facilities comprising local telephone
exchange lines in various municipalities in Luzon. The FMAs were later
79
converted into Financial Lease Agreements (FLA) in 1995.
Later on, the municipality of Jose Panganiban, Camarines Norte, donated a
one thousand two hundred (1,200) square-meter parcel of land to the DOTC
for the implementation of the RDTP in the municipality. However, the
municipality erroneously included portions of the respondents' property in the
donation. Pursuant to the FLAs, Digitel constructed a telephone exchange on
the property which encroached on the properties of the respondent
spouses.5chanrobleslaw
Sometime in the mid-1990s, the spouses Abecina discovered Digitel's
occupation over portions of their properties. They required Digitel to vacate
their properties and pay damages, but the latter refused, insisting that it was
occupying the property of the DOTC pursuant to their FLA.
On April 29, 2003, the respondent spouses sent a final demand letter to both
the DOTC and Digitel to vacate the premises and to pay unpaid
rent/damages in the amount of one million two hundred thousand pesos
(P1,200,000.00). Neither the DOTC nor Digitel complied with the demand.
On September 3, 2003, the respondent spouses filed an accion
publiciana complaint6 against the DOTC and Digitel for recovery of
possession and damages. The complaint was docketed as Civil Case No.
7355.
In its answer, the DOTC claimed immunity from suit and ownership over the
subject properties.7Nevertheless, during the pre-trial conference, the DOTC
admitted that the Abecinas were the rightful owners of the properties and
opted to rely instead on state immunity from suit.8chanrobleslaw
On March 12, 2007, the respondent spouses and Digitel executed a
Compromise Agreement and entered into a Contract of Lease. The RTC
rendered a partial decision and approved the Compromise Agreement on
March 22, 2007.9chanrobleslaw
On May 20, 2009, the RTC rendered its decision against the DOTC.10 It
brushed aside the defense of state immunity. Citing Ministerio v. Court of
First Instance11 and Amigable v. Cuenca,12 it held that government immunity
from suit could not be used as an instrument to perpetuate an injustice on a
citizen.13chanrobleslaw

The RTC held that as the lawful owners of the properties, the respondent
spouses enjoyed the right to use and to possess them - rights that were
violated by the DOTC's unauthorized entry, construction, and refusal to
vacate. The RTC (1) ordered the Department - as a builder in bad faith -to
forfeit the improvements and vacate the properties; and (2) awarded the
spouses with P1,200,000.00 as actual damages, P200,000.00 as moral
damages, and P200,000.00 as exemplary damages plus attorney's fees and
costs of suit.
The DOTC elevated the case to the CA arguing: (1) that the RTC never
acquired jurisdiction over it due to state immunity from suit; (2) that the suit
against it should have been dismissed after the spouses Abecina and Digitel
executed a compromise agreement; and (3) that the RTC erred in awarding
actual, moral, and exemplary damages against it.14 The appeal was docketed
as CA-G.R. CV No. 93795.
On March 20, 2013, the CA affirmed the RTC's decision but deleted the
award of exemplary damages. The CA upheld the RTC's jurisdiction over
cases for accion publiciana where the assessed value exceeds
P20,000.00.15 It likewise denied the DOTC's claim of state immunity from
suit, reasoning that the DOTC removed its cloak of immunity after entering
into a proprietary contract - the Financial Lease Agreement with Digitel.16 It
also adopted the RTC's position that state immunity cannot be used to defeat
a valid claim for compensation arising from an unlawful taking without the
proper expropriation proceedings.17The CA affirmed the award of actual and
moral damages due to the DOTC's neglect to verify the perimeter of the
telephone exchange construction but found no valid justification for the award
of exemplary damages.18chanrobleslaw
On April 16, 2013, the DOTC filed the present petition for review on certiorari.
THE PARTIES' ARGUMENTS
The DOTC asserts that its Financial Lease Agreement with Digitel was
entered into in pursuit of its governmental functions to promote and develop
networks of communication systems.19 Therefore, it cannot be interpreted as
a waiver of state immunity.
The DOTC also maintains that while it was regrettable that the construction
of the telephone exchange erroneously encroached on portions of the
respondent's properties, the RTC erred in ordering the return of the
80
property.20 It argues that while the DOTC, in good faith and in the
performance of its mandate, took private property without formal
expropriation proceedings, the taking was nevertheless an exercise of
eminent domain.21chanrobleslaw
Citing the 2007 case of Heirs of Mateo Pidacan v. Air Transportation Office
(ATO),22 the Department prays that instead of allowing recovery of the
property, the case should be remanded to the RTC for determination of just
compensation.
On the other hand, the respondents counter that the state immunity cannot
be invoked to perpetrate an injustice against its citizens.23 They also maintain
that because the subject properties are titled, the DOTC is a builder in bad
faith who is deemed to have lost the improvements it introduced.24 Finally,
they differentiate their case from Heirs of Mateo Pidacan v.
ATO because Pidacan originated from a complaint for payment of the value
of the property and rentals while their case originated from a complaint for
recovery of possession and damages.25cralawredchanrobleslaw
OUR RULING
We find no merit in the petition.
The State may not be sued without its consent.26 This fundamental doctrine
stems from the principle that there can be no legal right against the authority
which makes the law on which the right depends.27This generally accepted
principle of law has been explicitly expressed in both the 197328 and the
present Constitutions.
But as the principle itself implies, the doctrine of state immunity is not
absolute. The State may waive its cloak of immunity and the waiver may be
made expressly or by implication.
Over the years, the State's participation in economic and commercial
activities gradually expanded beyond its sovereign function as regulator and
governor. The evolution of the State's activities and degree of participation in
commerce demanded a parallel evolution in the traditional rule of state
immunity. Thus, it became necessary to distinguish between the State's
sovereign and governmental acts (jure imperii) and its private, commercial,
and proprietary acts (jure gestionis). Presently, state immunity restrictively
extends only to acts jure imperii while acts jure gestionis are considered as a

waiver of immunity.29chanrobleslaw
The Philippines recognizes the vital role of information and communication in
nation building.30 As a consequence, we have adopted a policy environment
that aspires for the full development of communications infrastructure to
facilitate the flow of information into, out of, and across the country. 31To this
end, the DOTC has been mandated with the promotion, development, and
regulation of dependable and coordinated networks of
communication.32chanrobleslaw
The DOTC encroached on the respondents' properties when it constructed
the local telephone exchange in Daet, Camarines Norte. The exchange was
part of the RTDP pursuant to the National Telephone Program. We have no
doubt that when the DOTC constructed the encroaching structures and
subsequently entered into the FLA with Digitel for their maintenance, it was
carrying out a sovereign function. Therefore, we agree with the DOTC's
contention that these are acts jure imperii that fall within the cloak of state
immunity.
However, as the respondents repeatedly pointed out, this Court has long
established in Ministerio v CFI,33Amigable v. Cuenca,34 the 2010 case Heirs
of Pidacan v. ATO,35 and more recently in Vigilar v. Aquino36 that the doctrine
of state immunity cannot serve as an instrument for perpetrating an injustice
to a citizen.
The Constitution identifies the limitations to the awesome and near-limitless
powers of the State. Chief among these limitations are the principles that no
person shall be deprived of life, liberty, or property without due process of
law and that private property shall not be taken for public use without just
compensation.37 These limitations are enshrined in no less than the Bill of
Rights that guarantees the citizen protection from abuse by the State.
Consequently, our laws38 require that the State's power of eminent domain
shall be exercised through expropriation proceedings in court. Whenever
private property is taken for public use, it becomes the ministerial duty of the
concerned office or agency to initiate expropriation proceedings. By
necessary implication, the filing of a complaint for expropriation is a waiver of
State immunity.
If the DOTC had correctly followed the regular procedure upon discovering
that it had encroached on the respondents' property, it would have initiated
81
expropriation proceedings instead of insisting on its immunity from suit. The
petitioners would not have had to resort to filing its complaint for
reconveyance. As this Court said in Ministerio:ChanRoblesVirtualawlibrary
It is unthinkable then that precisely because there was a failure to abide by
what the law requires, the government would stand to benefit. It is just as
important, if not more so, that there be fidelity to legal norms on the part of
officialdom if the rule of law were to be maintained. It is not too much to say
that when the government takes any property for public use, which is
conditioned upon the payment of just compensation, to be judicially
ascertained, it makes manifest that it submits to the jurisdiction of a
court. There is no thought then that the doctrine of immunity from suit could
still be appropriately invoked.39 [Emphasis supplied]
We hold, therefore, that the Department's entry into and taking of possession
of the respondents' property amounted to an implied waiver of its
governmental immunity from suit.
We also find no merit in the DOTC's contention that the RTC should not have
ordered the reconveyance of the respondent spouses' property because the
property is being used for a vital governmental function, that is, the operation
and maintenance of a safe and efficient communication
system.40chanrobleslaw
The exercise of eminent domain requires a genuine necessity to take the
property for public use and the consequent payment of just compensation.
The property is evidently being used for a public purpose. However, we also
note that the respondent spouses willingly entered into a lease agreement
with Digitel for the use of the subject properties.
If in the future the factual circumstances should change and the respondents
refuse to continue the lease, then the DOTC may initiate expropriation
proceedings. But as matters now stand, the respondents are clearly willing to
lease the property. Therefore, we find no genuine necessity for the DOTC to
actually take the property at this point.
Lastly, we find that the CA erred when it affirmed the RTC's decision without
deleting the forfeiture of the improvements made by the DOTC through
Digitel. Contrary to the RTC's findings, the DOTC was not a builder in bad
faith when the improvements were constructed. The CA itself found that the
Department's encroachment over the respondents' properties was a result of
a mistaken implementation of the donation from the municipality of Jose
 82

Panganiban.41chanrobleslaw

Good faith consists in the belief of the builder that the land he is building on
is his and [of] his ignorance of any defect or flaw in his title.42 While the
DOTC later realized its error and admitted its encroachment over the
respondents' property, there is no evidence that it acted maliciously or in bad
faith when the construction was done.

Article 52743 of the Civil Code presumes good faith. Without proof that the
Department's mistake was made in bad faith, its construction is presumed to
have been made in good faith. Therefore, the forfeiture of the improvements
in favor of the respondent spouses is unwarranted.

WHEREFORE, we hereby DENY the petition for lack of merit. The May 20,
2009 decision of the Regional Trial Court in Civil Case No. 7355, as
modified by the March 20, 2013 decision of the Court of Appeals in CA-G.R.
CV No. 93795, is AFFIRMED with further MODIFICATION that the forfeiture
of the improvements made by the DOTC in favor of the respondents
is DELETED. No costs.

SO ORDERED.chanRoblesvirtualLawlibrary
 83

Republic of the Philippines NARRA and its successor agency, the Land Authority, started sub-dividing
SUPREME COURT and distributing the land to the settlers; that the property in question, while
Manila located within the reservation established under Proclamation No. 90, was
the private property of plaintiff and should therefore be excluded therefrom.
FIRST DIVISION Plaintiff prayed that he be declared the rightful and true owner of the property
G.R. No. 70853 March 12, 1987 in question consisting of 1,364.4177 hectares; that his title of ownership
based on informacion posesoria of his predecessor-in-interest be declared
REPUBLIC OF THE PHILIPPINES, petitioner-appellee, legal valid and subsisting and that defendant be ordered to cancel and nullify
vs. all awards to the settlers.
PABLO FELICIANO and INTERMEDIATE APPELLATE
COURT, respondents-appellants. The defendant, represented by the Land Authority, filed an answer, raising by
way of affirmative defenses lack of sufficient cause of action and prescription.

On August 29, 1970, the trial court, through Judge Rafael S. Sison, rendered
YAP, J.: a decision declaring Lot No. 1, with an area of 701.9064 hectares, to be the
private property of the plaintiff, "being covered by a possessory information
Petitioner seeks the review of the decision of the Intermediate Appellate
title in the name of his predecessor-in-interest" and declaring said lot
Court dated April 30, 1985 reversing the order of the Court of First Instance
excluded from the NARRA settlement reservation. The court declared the
of Camarines Sur, Branch VI, dated August 21, 1980, which dismissed the
rest of the property claimed by plaintiff, i.e. Lots 2, 3 and 4, reverted to the
complaint of respondent Pablo Feliciano for recovery of ownership and
public domain.
possession of a parcel of land on the ground of non-suability of the State.
A motion to intervene and to set aside the decision of August 29, 1970 was
The background of the present controversy may be briefly summarized as
filed by eighty-six (86) settlers, together with the barrio council of Pag-asay,
follows:
alleging among other things that intervenors had been in possession of the
On January 22, 1970, respondent Feliciano filed a complaint with the then land in question for more than twenty (20) years under claim of ownership.
Court of First Instance of Camarines Sur against the Republic of the
On January 25, 1971, the court a quo reconsidered its decision, reopened
Philippines, represented by the Land Authority, for the recovery of ownership
the case and directed the intervenors to file their corresponding pleadings
and possession of a parcel of land, consisting of four (4) lots with an
and present their evidence; all evidence already presented were to remain
aggregate area of 1,364.4177 hectares, situated in the Barrio of Salvacion,
but plaintiff, as well as the Republic of the Philippines, could present
Municipality of Tinambac, Camarines Sur. Plaintiff alleged that he bought the
additional evidence if they so desire. The plaintiff presented additional
property in question from Victor Gardiola by virtue of a Contract of Sale dated
evidence on July 30, 1971, and the case was set for hearing for the reception
May 31, 1952, followed by a Deed of Absolute Sale on October 30, 1954;
of intervenors' evidence on August 30 and August 31, 1971.
that Gardiola had acquired the property by purchase from the heirs of
Francisco Abrazado whose title to the said property was evidenced by On August 30, 1971, the date set for the presentation of the evidence for
an informacion posesoria that upon plaintiff's purchase of the property, he intervenors, the latter did not appear but submitted a motion for
took actual possession of the same, introduced various improvements postponement and resetting of the hearing on the next day, August 31, 1971.
therein and caused it to be surveyed in July 1952, which survey was The trial court denied the motion for postponement and allowed plaintiff to
approved by the Director of Lands on October 24, 1954; that on November 1, offer his evidence "en ausencia," after which the case would be deemed
1954, President Ramon Magsaysay issued Proclamation No. 90 reserving for submitted for decision. On the following day, August 31, 1971, Judge Sison
settlement purposes, under the administration of the National Resettlement rendered a decision reiterating his decision of August 29, 1970.
and Rehabilitation Administration (NARRA), a tract of land situated in the
Municipalities of Tinambac and Siruma, Camarines Sur, after which the

A motion for reconsideration was immediately filed by the intervenors. But
before this motion was acted upon, plaintiff filed a motion for execution,
dated November 18, 1971. On December 10, 1971, the lower court, this time
through Judge Miguel Navarro, issued an order denying the motion for
execution and setting aside the order denying intervenors' motion for
postponement. The case was reopened to allow intervenors to present their
evidence. Unable to secure a reconsideration of Judge Navarro's order, the
plaintiff went to the Intermediate Appellate Court on a petition for certiorari.
Said petition was, however, denied by the Intermediate Appellate Court, and
petitioners brought the matter to this Court in G.R. No. 36163, which was
denied on May 3, 1973 Consequently, the case was remanded to the court a
quo for further proceedings.
On August 31, 1970, intervenors filed a motion to dismiss, principally on the
ground that the Republic of the Philippines cannot be sued without its
consent and hence the action cannot prosper. The motion was opposed by
the plaintiff.
On August 21, 1980, the trial court, through Judge Esteban Lising, issued the
questioned order dismissing the case for lack of jurisdiction. Respondent
moved for reconsideration, while the Solicitor General, on behalf of the
Republic of the Philippines filed its opposition thereto, maintaining that the
dismissal was proper on the ground of non-suability of the State and also on
the ground that the existence and/or authenticity of the purported possessory
information title of the respondents' predecessor-in-interest had not been
demonstrated and that at any rate, the same is not evidence of title, or if it is,
its efficacy has been lost by prescription and laches.
Upon denial of the motion for reconsideration, plaintiff again went to the
Intermediate Appellate Court on petition for certiorari. On April 30, 1985, the
respondent appellate court rendered its decision reversing the order of Judge
Lising and remanding the case to the court a quo for further proceedings.
Hence this petition.
We find the petition meritorious. The doctrine of non-suability of the State has
proper application in this case. The plaintiff has impleaded the Republic of
the Philippines as defendant in an action for recovery of ownership and
possession of a parcel of land, bringing the State to court just like any private
person who is claimed to be usurping a piece of property. A suit for the
recovery of property is not an action in rem, but an action in personam. 1 It is
an action directed against a specific party or parties, and any judgment
therein binds only such party or parties. The complaint filed by plaintiff, the
84
private respondent herein, is directed against the Republic of the Philippines,
represented by the Land Authority, a governmental agency created by
Republic Act No. 3844.
By its caption and its allegation and prayer, the complaint is clearly a suit
against the State, which under settled jurisprudence is not permitted, except
upon a showing that the State has consented to be sued, either expressly or
by implication through the use of statutory language too plain to be
misinterpreted.2 There is no such showing in the instant case. Worse, the
complaint itself fails to allege the existence of such consent. This is a fatal
defect, 3 and on this basis alone, the complaint should have been dismissed.
The failure of the petitioner to assert the defense of immunity from suit when
the case was tried before the court a quo, as alleged by private respondent,
is not fatal. It is now settled that such defense "may be invoked by the
courts sua sponte at any stage of the proceedings." 4
Private respondent contends that the consent of petitioner may be read from
the Proclamation itself, when it established the reservation " subject to
private rights, if any there be. " We do not agree. No such consent can be
drawn from the language of the Proclamation. The exclusion of existing
private rights from the reservation established by Proclamation No. 90 can
not be construed as a waiver of the immunity of the State from suit. Waiver of
immunity, being a derogation of sovereignty, will not be inferred lightly. but
must be construed in strictissimi juris. 5Moreover, the Proclamation is not a
legislative act. The consent of the State to be sued must emanate from
statutory authority. Waiver of State immunity can only be made by an act of
the legislative body.
Neither is there merit in respondent's submission, which the respondent
appellate court sustained, on the basis of our decision in
the Begosa case, 6 that the present action is not a suit against the State
within the rule of State immunity from suit, because plaintiff does not seek to
divest the Government of any of its lands or its funds. It is contended that the
complaint involves land not owned by the State, but private land belonging to
the plaintiff, hence the Government is not being divested of any of its
properties. There is some sophistry involved in this argument, since the
character of the land sought to be recovered still remains to be established,
and the plaintiff's action is directed against the State precisely to compel the
latter to litigate the ownership and possession of the property. In other words,
the plaintiff is out to establish that he is the owner of the land in question
based, incidentally, on an informacion posesoria of dubious value, and he
 85

seeks to establish his claim of ownership by suing the Republic of the "possessory information documents, as well as other purportedly old Spanish
Philippines in an action in personam. titles, as proof of alleged ownership of lands.

The inscription in the property registry of an informacion posesoria under the WHEREFORE, judgment is hereby rendered reversing and setting aside the
Spanish Mortgage Law was a means provided by the law then in force in the appealed decision of the Intermediate Appellate Court, dated April 30, 1985,
Philippines prior to the transfer of sovereignty from Spain to the United and affirming the order of the court a quo, dated August 21, 1980, dismissing
States of America, to record a claimant's actual possession of a piece of the complaint filed by respondent Pablo Feliciano against the Republic of the
land, established through an ex parte proceeding conducted in accordance Philippines. No costs.
with prescribed rules. 7 Such inscription merely furnishes, at best, prima
facieevidence of the fact that at the time the proceeding was held, the SO ORDERED.
claimant was in possession of the land under a claim of right as set forth in
his application. 8 The possessory information could ripen into a record of
ownership after the lapse of 20 years (later reduced to 10 years), upon the
fulfillment of the requisites prescribed in Article 393 of the Spanish Mortgage
Law.

There is no showing in the case at bar that the informacion posesoria held by
the respondent had been converted into a record of ownership. Such
possessory information, therefore, remained at best mere prima
facie evidence of possession. Using this possessory information, the
respondent could have applied for judicial confirmation of imperfect title
under the Public Land Act, which is an action in rem. However, having failed
to do so, it is rather late for him to pursue this avenue at this time.
Respondent must also contend, as the records disclose, with the fact
admitted by him and stated in the decision of the Court a quo that settlers
have been occupying and cultivating the land in question since even before
the outbreak of the war, which puts in grave doubt his own claim of
possession.

Worthy of note is the fact, as pointed out by the Solicitor General, that
the informacion posesoria registered in the Office of the Register of Deed of
Camarines Sur on September 23, 1952 was a "reconstituted" possessory
information; it was "reconstituted from the duplicate presented to this office
(Register of Deeds) by Dr. Pablo Feliciano," without the submission of proof
that the alleged duplicate was authentic or that the original thereof was lost.
Reconstitution can be validly made only in case of loss of the
original. 10 These circumstances raise grave doubts as to the authenticity
and validity of the "informacion posesoria" relied upon by respondent
Feliciano. Adding to the dubiousness of said document is the fact that
"possessory information calls for an area of only 100 hectares," 11 whereas
the land claimed by respondent Feliciano comprises 1,364.4177 hectares,
later reduced to 701-9064 hectares. Courts should be wary in accepting
 86

Republic of the Philippines x------------------------------------------------------------------------------------x

Supreme Court

Manila RESOLUTION

SECOND DIVISION

BRION, J.:

PHILIPPINE TOURISM G.R. No. 176628 Before this Court is a petition for certiorari, under Rule 65 of the 1997 Rules
of Civil Procedure, to annul the decision[1] dated December 13, 2006 of the
AUTHORITY, Court of Appeals (CA) in CA G.R. SP No. 90402. This CA decision dismissed
Petitioner, the petition for annulment of judgment which sought to set aside the
decision[2] of the Regional Trial Court (RTC)of Muntinlupa City, Branch 203,
Present: in Civil Case No. 03-212. The RTC held the Philippine Tourism
Authority (PTA) liable for its unpaid obligation to Philippine Golf Development
& Equipment, Inc. (PHILGOLF).
CARPIO, J., Chairperson,

BRION,
FACTUAL BACKGROUND
- versus - PEREZ,
On April 3, 1996, PTA, an agency of the Department of Tourism, whose main
SERENO, and function is to bolster and promote tourism, entered into a contract with
Atlantic Erectors, Inc. (AEI) for the construction of the Intramuros Golf
REYES, JJ. Course Expansion Projects (PAR 60-66) for a contract price of Fifty-Seven
Million Nine Hundred Fifty-Four Thousand Six Hundred Forty-Seven and
94/100 Pesos (P57,954,647.94).

Promulgated:
PHILIPPINE GOLF DEVELOPMENT
& EQUIPMENT, INC., March 19, 2012
Respondent.
The civil works of the project commenced. Since AEI was incapable of
constructing the golf course aspect of the project, it entered into a sub-
contract agreement with PHILGOLF, a duly organized domestic corporation,
to build the golf course amounting to Twenty-Seven Million Pesos
(P27,000,000.00). The sub-contract agreement also provides that PHILGOLF
shall submit its progress billings directly to PTA and, in turn, PTA shall
directly pay PHILGOLF.[3]

On October 2, 2003, PHILGOLF filed a collection suit against PTA amounting
to Eleven Million Eight Hundred Twenty Thousand Five Hundred Fifty and
53/100 Pesos (P11,820,550.53), plus interest, for the construction of the golf
course. Within the period to file a responsive pleading, PTA filed a motion for
extension of time to file an answer.
On October 30, 2003, the RTC granted the motion for extension of time. PTA
filed another motion for extension of time to file an answer. The RTC again
granted the motion.
Despite the RTCs liberality of granting two successive motions for extension
of time, PTA failed to answer the complaint. Hence, on April 6, 2004, the
RTC rendered a judgment of default, ruling as follows:
WHEREFORE, judgment is hereby rendered, ordering the defendant to pay
plaintiff:
1. The amount of Eleven Million, Eight Hundred Twenty Thousand,
Five Hundred Fifty Pesos and Fifty Three Centavos (P11,820,550.53),
representing defendants outstanding obligation, plus interest thereon of
twelve percent (12%) per annum from the time the unpaid billings of plaintiff
were due for payment by the defendant, until they are fully paid.
2. The amount of Two Hundred Thousand Pesos (P200,000.00),
as attorneys fees.
87
3. The amount of One Hundred Twenty Eight Thousand, Five
Hundred Twenty Nine Pesos and Fourteen Centavos (P128,529.14), as filing
fees and other costs of litigation.
4. The amount of Three Hundred Thousand Pesos (P300,000.00),
as moral damages.
5. The amount of One Hundred Fifty Thousand (Pesos
(P150,000.00), as nominal damages, and
6. The amount of Two Hundred Fifty Thousand Pesos
(P250,000.00), as exemplary damages.
SO ORDERED.[4]
On July 11, 2005, PTA seasonably appealed the case to the CA. But before
the appeal of PTA could be perfected, PHILGOLF already filed a motion for
execution pending appeal with the RTC. The RTC, in an Order dated June 2,
2004, granted the motion and a writ of execution pending appeal was issued
against PTA. On June 3, 2004, a notice of garnishment was issued against
PTAs bank account at the Land Bank of the Philippines, NAIA-BOC Branch
to fully satisfy the judgment.
PTA filed a petition for certiorari with the CA, imputing grave abuse of
discretion on the part of the RTC for granting the motion for execution
pending appeal. The CA ruled in favor of PTA and set aside the order
granting the motion for execution pending appeal.

On July 11, 2005, PTA withdrew its appeal of the RTC decision and, instead,
filed a petition[5] for annulment of judgment under Rule 47 of the Rules of
Court. The petition for annulment of judgment was premised on the argument
that the gross negligence of PTAs counsel prevented the presentation of
evidence before the RTC.
On December 13, 2006, the CA dismissed the petition for annulment of
judgment for lack of merit. PTA questions this CA action in the present
petition for certiorari.
THE PETITION
The petition cites three arguments: first, that the negligence of PTAs counsel
amounted to an extrinsic fraud warranting an annulment of
judgment; second, that since PTA is a government entity, it should not be
bound by the inactions or negligence of its counsel; and third, that there were
no other available remedies left for PTA but a petition for annulment of
judgment.
OUR RULING
We find the petition unmeritorious.
The Rules of Court specifically provides for deadlines in actions before the
court to ensure an orderly disposition of cases. PTA cannot escape these
legal technicalities by simply invoking the negligence of its counsel. This
practice, if allowed, would defeat the purpose of the Rules on periods since
every party would merely lay the blame on its counsel to avoid any liability.
The rule is that a client is bound by the acts, even mistakes, of his counsel in
the realm of procedural technique[,]and unless such acts involve gross
negligence that the claiming party can prove, the acts of a counsel bind the
client as if it had been the latters acts.[6]
88
In LBC Express - Metro Manila, Inc. v. Mateo,[7] the Court held that [g]ross
negligence is characterized by want of even slight care, acting or omitting to
act in a situation where there is a duty to act, not inadvertently but willfully
and intentionally with a conscious indifference to consequences insofar as
other persons may be affected. This cannot be invoked in cases where the
counsel is merely negligent in submitting his required pleadings within the
period that the rules mandate.
It is not disputed that the summons together with a copy of the complaint was
personally served upon, and received by PTA through its Corporate Legal
Services Department, on October 10, 2003.[8] Thus, in failing to submit a
responsive pleading within the required time despite sufficient notice, the
RTC was correct in declaring PTA in default.
There was no extrinsic fraud
Extrinsic fraud refers to any fraudulent act of the prevailing party in the
litigation which is committed outside of the trial of the case, whereby the
unsuccessful party has been prevented from exhibiting fully his case, by
fraud or deception practiced on him by his opponent.[9] Under the doctrine of
this cited case, we do not see the acts of PTAs counsel to be constitutive of
extrinsic fraud.
The records reveal that the judgment of default[10] was sent via registered
mail to PTAs counsel. However, PTA never availed of the remedy of a
motion to lift the order of default.[11] Since the failure of PTA to present its
evidence was not a product of any fraudulent acts committed outside trial,
the RTC did not err in declaring PTA in default.
Annulment of judgment is not
the proper remedy

PTAs appropriate remedy was only to appeal the RTC decision. Annulment
of Judgment under Rule 47 of the Rules of Court is a recourse equitable in
character and allowed only in exceptional cases where the ordinary remedies
of new trial, appeal, petition for relief or other appropriate remedies are no
longer available through no fault of petitioner.[12]
In this case, appeal was an available remedy. There was also no
extraordinary reason for a petition for annulment of judgment, nor was there
any adequate explanation on why the remedy for new trial or petition for relief
could not be used. The Court is actually at a loss why PTA had withdrawn a
properly filed appeal and substituted it with another petition, when PTA could
have merely raised the same issues through an ordinary appeal.
PTA was acting in a proprietary
character
PTA also erred in invoking state immunity simply because it is a government
entity. The application of state immunity is proper only when the proceedings
arise out of sovereign transactions and not in cases of commercial activities
or economic affairs. The State, in entering into a business contract, descends
to the level of an individual and is deemed to have tacitly given its consent to
be sued.[13]
Since the Intramuros Golf Course Expansion Projects partakes of a
proprietary character entered into between PTA and PHILGOLF, PTA cannot
avoid its financial liability by merely invoking immunity from suit.
A special civil action for certiorari
under Rule 65 is proper only when
there is no other plain, speedy, and
adequate remedy
Lastly, a special civil action under Rule 65 of the Rules of Court is only
available in cases when a tribunal, board or officer exercising judicial or
89
quasi-judicial functions has acted without or in excess of its or his jurisdiction,
or with grave abuse of discretion amounting to lack or excess of jurisdiction,
and there is no appeal, or any plain, speedy, and adequate remedy in the
ordinary course of law. It is not a mode of appeal, and cannot also be made
as a substitute for appeal. It will not lie in cases where other remedies are
available under the law.
In Land Bank of the Philippines v. Court of Appeals,[14] the Court had the
occasion to state:
The general rule is that a [certiorari] will not issue where the remedy of
appeal is available to the aggrieved party. The remedies of appeal in the
ordinary course of law and that of certiorari under Rule 65 of the Revised
Rules of Court are mutually exclusive and not alternative or cumulative.
Hence, the special civil action for certiorari under Rule 65 is not and cannot
be a substitute for an appeal, where the latter remedy is available. xxx
xxxx
The proper recourse of the aggrieved party from a decision of the CA is a
petition for review on certiorari under Rule 45 of the Revised Rules of Court.
On the other hand, if the error subject of the recourse is one of jurisdiction, or
the act complained of was perpetrated by a quasi-judicial officer or agency
with grave abuse of discretion amounting to lack or excess of jurisdiction, the
proper remedy available to the aggrieved party is a petition
for certiorari under Rule 65 of the said Rules. [emphases supplied; citations
omitted]
In sum, PTA had the remedy of appealing the RTC decision to the CA and,
thereafter, to us. Under the circumstances, we find no adequate reason to
 90

justify the elevation of this case to the CA and then to us, under Rule 65 of
the Rules of Court.

WHEREFORE, premises considered, we hereby DISMISS the petition

for certiorari. No costs.

SO ORDERED.
91