G.R. No.

118295 May 2, 1997

WIGBERTO E. TAÑADA and ANNA DOMINIQUE COSETENG, as members of the Philippine Senate and as taxpayers; GREGORIO
ANDOLANA and JOKER ARROYO as members of the House of Representatives and as taxpayers; NICANOR P. PERLAS and
HORACIO R. MORALES, both as taxpayers; CIVIL LIBERTIES UNION, NATIONAL ECONOMIC PROTECTIONISM ASSOCIATION, CENTER
FOR ALTERNATIVE DEVELOPMENT INITIATIVES, LIKAS-KAYANG KAUNLARAN FOUNDATION, INC., PHILIPPINE RURAL
RECONSTRUCTION MOVEMENT, DEMOKRATIKONG KILUSAN NG MAGBUBUKID NG PILIPINAS, INC., and PHILIPPINE PEASANT
INSTITUTE, in representation of various taxpayers and as non-governmental organizations, petitioners,
vs.
EDGARDO ANGARA, ALBERTO ROMULO, LETICIA RAMOS-SHAHANI, HEHERSON ALVAREZ, AGAPITO AQUINO, RODOLFO BIAZON,
NEPTALI GONZALES, ERNESTO HERRERA, JOSE LINA, GLORIA. MACAPAGAL-ARROYO, ORLANDO MERCADO, BLAS OPLE, JOHN
OSMEÑA, SANTANINA RASUL, RAMON REVILLA, RAUL ROCO, FRANCISCO TATAD and FREDDIE WEBB, in their respective capacities
as members of the Philippine Senate who concurred in the ratification by the President of the Philippines of the Agreement
Establishing the World Trade Organization; SALVADOR ENRIQUEZ, in his capacity as Secretary of Budget and Management;
CARIDAD VALDEHUESA, in her capacity as National Treasurer; RIZALINO NAVARRO, in his capacity as Secretary of Trade and
Industry; ROBERTO SEBASTIAN, in his capacity as Secretary of Agriculture; ROBERTO DE OCAMPO, in his capacity as Secretary of
Finance; ROBERTO ROMULO, in his capacity as Secretary of Foreign Affairs; and TEOFISTO T. GUINGONA, in his capacity as
Executive Secretary, respondents.
PANGANIBAN, J.:
The emergence on January 1, 1995 of the World Trade Organization, abetted by the membership thereto of the vast majority of
countries has revolutionized international business and economic relations amongst states. It has irreversibly propelled the world
towards trade liberalization and economic globalization. Liberalization, globalization, deregulation and privatization, the third-
millennium buzz words, are ushering in a new borderless world of business by sweeping away as mere historical relics the
heretofore traditional modes of promoting and protecting national economies like tariffs, export subsidies, import quotas,
quantitative restrictions, tax exemptions and currency controls. Finding market niches and becoming the best in specific industries in
a market-driven and export-oriented global scenario are replacing age-old "beggar-thy-neighbor" policies that unilaterally protect
weak and inefficient domestic producers of goods and services. In the words of Peter Drucker, the well-known management guru,
"Increased participation in the world economy has become the key to domestic economic growth and prosperity."
Brief Historical Background
To hasten worldwide recovery from the devastation wrought by the Second World War, plans for the establishment of three
multilateral institutions — inspired by that grand political body, the United Nations — were discussed at Dumbarton Oaks and
Bretton Woods. The first was the World Bank (WB) which was to address the rehabilitation and reconstruction of war-ravaged and
later developing countries; the second, the International Monetary Fund (IMF) which was to deal with currency problems; and
the third, the International Trade Organization (ITO), which was to foster order and predictability in world trade and to minimize
unilateral protectionist policies that invite challenge, even retaliation, from other states. However, for a variety of reasons, including
its non-ratification by the United States, the ITO, unlike the IMF and WB, never took off. What remained was only GATT — the
General Agreement on Tariffs and Trade. GATT was a collection of treaties governing access to the economies of treaty adherents
with no institutionalized body administering the agreements or dependable system of dispute settlement.
After half a century and several dizzying rounds of negotiations, principally the Kennedy Round, the Tokyo Round and the Uruguay
Round, the world finally gave birth to that administering body — the World Trade Organization — with the signing of the "Final Act"
in Marrakesh, Morocco and the ratification of the WTO Agreement by its members. 1
Like many other developing countries, the Philippines joined WTO as a founding member with the goal, as articulated by President
Fidel V. Ramos in two letters to the Senate (infra), of improving "Philippine access to foreign markets, especially its major trading
partners, through the reduction of tariffs on its exports, particularly agricultural and industrial products." The President also saw in
the WTO the opening of "new opportunities for the services sector . . . , (the reduction of) costs and uncertainty associated with
exporting . . . , and (the attraction of) more investments into the country." Although the Chief Executive did not expressly mention it
in his letter, the Philippines — and this is of special interest to the legal profession — will benefit from the WTO system of dispute
settlement by judicial adjudication through the independent WTO settlement bodies called (1) Dispute Settlement Panels and (2)
Appellate Tribunal. Heretofore, trade disputes were settled mainly through negotiations where solutions were arrived at frequently
on the basis of relative bargaining strengths, and where naturally, weak and underdeveloped countries were at a disadvantage.
The Petition in Brief
Arguing mainly (1) that the WTO requires the Philippines "to place nationals and products of member-countries on the same footing
as Filipinos and local products" and (2) that the WTO "intrudes, limits and/or impairs" the constitutional powers of both Congress
and the Supreme Court, the instant petition before this Court assails the WTO Agreement for violating the mandate of the 1987
Constitution to "develop a self-reliant and independent national economy effectively controlled by Filipinos . . . (to) give preference
to qualified Filipinos (and to) promote the preferential use of Filipino labor, domestic materials and locally produced goods."
Simply stated, does the Philippine Constitution prohibit Philippine participation in worldwide trade liberalization and economic
globalization? Does it proscribe Philippine integration into a global economy that is liberalized, deregulated and privatized? These
are the main questions raised in this petition for certiorari, prohibition and mandamus under Rule 65 of the Rules of Court praying
(1) for the nullification, on constitutional grounds, of the concurrence of the Philippine Senate in the ratification by the President of
the Philippines of the Agreement Establishing the World Trade Organization (WTO Agreement, for brevity) and (2) for the
prohibition of its implementation and enforcement through the release and utilization of public funds, the assignment of public
officials and employees, as well as the use of government properties and resources by respondent-heads of various executive offices
concerned therewith. This concurrence is embodied in Senate Resolution No. 97, dated December 14, 1994.
The Facts
On April 15, 1994, Respondent Rizalino Navarro, then Secretary of The Department of Trade and Industry (Secretary Navarro, for
brevity), representing the Government of the Republic of the Philippines, signed in Marrakesh, Morocco, the Final Act Embodying
the Results of the Uruguay Round of Multilateral Negotiations (Final Act, for brevity).
By signing the Final Act,2 Secretary Navarro on behalf of the Republic of the Philippines, agreed:
(a) to submit, as appropriate, the WTO Agreement for the consideration of their respective competent authorities,
with a view to seeking approval of the Agreement in accordance with their procedures; and
(b) to adopt the Ministerial Declarations and Decisions.
On August 12, 1994, the members of the Philippine Senate received a letter dated August 11, 1994 from the President of the
Philippines,3 stating among others that "the Uruguay Round Final Act is hereby submitted to the Senate for its concurrence pursuant
to Section 21, Article VII of the Constitution."
On August 13, 1994, the members of the Philippine Senate received another letter from the President of the Philippines 4 likewise
dated August 11, 1994, which stated among others that "the Uruguay Round Final Act, the Agreement Establishing the World Trade
Organization, the Ministerial Declarations and Decisions, and the Understanding on Commitments in Financial Services are hereby
submitted to the Senate for its concurrence pursuant to Section 21, Article VII of the Constitution."
On December 9, 1994, the President of the Philippines certified the necessity of the immediate adoption of P.S. 1083, a resolution
entitled "Concurring in the Ratification of the Agreement Establishing the World Trade Organization."5
On December 14, 1994, the Philippine Senate adopted Resolution No. 97 which "Resolved, as it is hereby resolved, that the Senate
concur, as it hereby concurs, in the ratification by the President of the Philippines of the Agreement Establishing the World Trade
Organization."6 The text of the WTO Agreement is written on pages 137 et seq. of Volume I of the 36-volume Uruguay Round of
Multilateral Trade Negotiations and includes various agreements and associated legal instruments (identified in the said Agreement
as Annexes 1, 2 and 3 thereto and collectively referred to as Multilateral Trade Agreements, for brevity) as follows:
ANNEX 1
Annex 1A: Multilateral Agreement on Trade in Goods
General Agreement on Tariffs and Trade 1994
Agreement on Agriculture
Agreement on the Application of Sanitary and
Phytosanitary Measures
Agreement on Textiles and Clothing
Agreement on Technical Barriers to Trade
Agreement on Trade-Related Investment Measures
Agreement on Implementation of Article VI of he
General Agreement on Tariffs and Trade
1994
Agreement on Implementation of Article VII of the
General on Tariffs and Trade 1994
Agreement on Pre-Shipment Inspection
Agreement on Rules of Origin
Agreement on Imports Licensing Procedures
Agreement on Subsidies and Coordinating
Measures
Agreement on Safeguards
Annex 1B: General Agreement on Trade in Services and Annexes
Annex 1C: Agreement on Trade-Related Aspects of Intellectual
Property Rights
ANNEX 2
Understanding on Rules and Procedures Governing
the Settlement of Disputes
ANNEX 3
Trade Policy Review Mechanism
On December 16, 1994, the President of the Philippines signed 7 the Instrument of Ratification, declaring:
NOW THEREFORE, be it known that I, FIDEL V. RAMOS, President of the Republic of the Philippines, after having seen and
considered the aforementioned Agreement Establishing the World Trade Organization and the agreements and associated
legal instruments included in Annexes one (1), two (2) and three (3) of that Agreement which are integral parts thereof,
signed at Marrakesh, Morocco on 15 April 1994, do hereby ratify and confirm the same and every Article and Clause
thereof.
To emphasize, the WTO Agreement ratified by the President of the Philippines is composed of the Agreement Proper and "the
associated legal instruments included in Annexes one (1), two (2) and three (3) of that Agreement which are integral parts thereof."
On the other hand, the Final Act signed by Secretary Navarro embodies not only the WTO Agreement (and its integral annexes
aforementioned) but also (1) the Ministerial Declarations and Decisions and (2) the Understanding on Commitments in Financial
Services. In his Memorandum dated May 13, 1996,8 the Solicitor General describes these two latter documents as follows:
The Ministerial Decisions and Declarations are twenty-five declarations and decisions on a wide range of matters, such as
measures in favor of least developed countries, notification procedures, relationship of WTO with the International
Monetary Fund (IMF), and agreements on technical barriers to trade and on dispute settlement.
The Understanding on Commitments in Financial Services dwell on, among other things, standstill or limitations and
qualifications of commitments to existing non-conforming measures, market access, national treatment, and definitions of
non-resident supplier of financial services, commercial presence and new financial service.
On December 29, 1994, the present petition was filed. After careful deliberation on respondents' comment and petitioners' reply
thereto, the Court resolved on December 12, 1995, to give due course to the petition, and the parties thereafter filed their
respective memoranda. The court also requested the Honorable Lilia R. Bautista, the Philippine Ambassador to the United Nations
stationed in Geneva, Switzerland, to submit a paper, hereafter referred to as "Bautista Paper," 9 for brevity, (1) providing a historical
background of and (2) summarizing the said agreements.
During the Oral Argument held on August 27, 1996, the Court directed:
(a) the petitioners to submit the (1) Senate Committee Report on the matter in controversy and (2) the transcript of
proceedings/hearings in the Senate; and
(b) the Solicitor General, as counsel for respondents, to file (1) a list of Philippine treaties signed prior to the Philippine
adherence to the WTO Agreement, which derogate from Philippine sovereignty and (2) copies of the multi-volume WTO
Agreement and other documents mentioned in the Final Act, as soon as possible.
After receipt of the foregoing documents, the Court said it would consider the case submitted for resolution. In a Compliance dated
September 16, 1996, the Solicitor General submitted a printed copy of the 36-volume Uruguay Round of Multilateral Trade
Negotiations, and in another Compliance dated October 24, 1996, he listed the various "bilateral or multilateral treaties or
international instruments involving derogation of Philippine sovereignty." Petitioners, on the other hand, submitted their
Compliance dated January 28, 1997, on January 30, 1997.
The Issues
In their Memorandum dated March 11, 1996, petitioners summarized the issues as follows:
A. Whether the petition presents a political question or is otherwise not justiciable.
B. Whether the petitioner members of the Senate who participated in the deliberations and voting leading to the
concurrence are estopped from impugning the validity of the Agreement Establishing the World Trade Organization or of
the validity of the concurrence.
 C. Whether the provisions of the Agreement Establishing the World Trade Organization contravene the provisions of Sec.
19, Article II, and Secs. 10 and 12, Article XII, all of the 1987 Philippine Constitution.
D. Whether provisions of the Agreement Establishing the World Trade Organization unduly limit, restrict and impair
Philippine sovereignty specifically the legislative power which, under Sec. 2, Article VI, 1987 Philippine Constitution is
"vested in the Congress of the Philippines";
E. Whether provisions of the Agreement Establishing the World Trade Organization interfere with the exercise of judicial
power.
F. Whether the respondent members of the Senate acted in grave abuse of discretion amounting to lack or excess of
jurisdiction when they voted for concurrence in the ratification of the constitutionally-infirm Agreement Establishing the
World Trade Organization.
G. Whether the respondent members of the Senate acted in grave abuse of discretion amounting to lack or excess of
jurisdiction when they concurred only in the ratification of the Agreement Establishing the World Trade Organization, and
not with the Presidential submission which included the Final Act, Ministerial Declaration and Decisions, and the
Understanding on Commitments in Financial Services.
On the other hand, the Solicitor General as counsel for respondents "synthesized the several issues raised by petitioners into the
following":
1. Whether or not the provisions of the "Agreement Establishing the World Trade Organization and the Agreements and
Associated Legal Instruments included in Annexes one (1), two (2) and three (3) of that agreement" cited by petitioners
directly contravene or undermine the letter, spirit and intent of Section 19, Article II and Sections 10 and 12, Article XII of
the 1987 Constitution.
2. Whether or not certain provisions of the Agreement unduly limit, restrict or impair the exercise of legislative power by
Congress.
3. Whether or not certain provisions of the Agreement impair the exercise of judicial power by this Honorable Court in
promulgating the rules of evidence.
4. Whether or not the concurrence of the Senate "in the ratification by the President of the Philippines of the Agreement
establishing the World Trade Organization" implied rejection of the treaty embodied in the Final Act.
By raising and arguing only four issues against the seven presented by petitioners, the Solicitor General has effectively ignored three,
namely: (1) whether the petition presents a political question or is otherwise not justiciable; (2) whether petitioner-members of the
Senate (Wigberto E. Tañada and Anna Dominique Coseteng) are estopped from joining this suit; and (3) whether the respondent-
members of the Senate acted in grave abuse of discretion when they voted for concurrence in the ratification of the WTO
Agreement. The foregoing notwithstanding, this Court resolved to deal with these three issues thus:
(1) The "political question" issue — being very fundamental and vital, and being a matter that probes into the very jurisdiction of this
Court to hear and decide this case — was deliberated upon by the Court and will thus be ruled upon as the first issue;
(2) The matter of estoppel will not be taken up because this defense is waivable and the respondents have effectively waived it by
not pursuing it in any of their pleadings; in any event, this issue, even if ruled in respondents' favor, will not cause the petition's
dismissal as there are petitioners other than the two senators, who are not vulnerable to the defense of estoppel; and
(3) The issue of alleged grave abuse of discretion on the part of the respondent senators will be taken up as an integral part of the
disposition of the four issues raised by the Solicitor General.
During its deliberations on the case, the Court noted that the respondents did not question the locus standi of petitioners. Hence,
they are also deemed to have waived the benefit of such issue. They probably realized that grave constitutional issues, expenditures
of public funds and serious international commitments of the nation are involved here, and that transcendental public interest
requires that the substantive issues be met head on and decided on the merits, rather than skirted or deflected by procedural
matters.
To recapitulate, the issues that will be ruled upon shortly are:
(1) DOES THE PETITION PRESENT A JUSTICIABLE CONTROVERSY? OTHERWISE STATED, DOES THE PETITION INVOLVE A
POLITICAL QUESTION OVER WHICH THIS COURT HAS NO JURISDICTION?
(2) DO THE PROVISIONS OF THE WTO AGREEMENT AND ITS THREE ANNEXES CONTRAVENE SEC. 19, ARTICLE II, AND SECS.
10 AND 12, ARTICLE XII, OF THE PHILIPPINE CONSTITUTION?
(3) DO THE PROVISIONS OF SAID AGREEMENT AND ITS ANNEXES LIMIT, RESTRICT, OR IMPAIR THE EXERCISE OF LEGISLATIVE
POWER BY CONGRESS?
(4) DO SAID PROVISIONS UNDULY IMPAIR OR INTERFERE WITH THE EXERCISE OF JUDICIAL POWER BY THIS COURT IN
PROMULGATING RULES ON EVIDENCE?
(5) WAS THE CONCURRENCE OF THE SENATE IN THE WTO AGREEMENT AND ITS ANNEXES SUFFICIENT AND/OR VALID,
CONSIDERING THAT IT DID NOT INCLUDE THE FINAL ACT, MINISTERIAL DECLARATIONS AND DECISIONS, AND THE
UNDERSTANDING ON COMMITMENTS IN FINANCIAL SERVICES?
The First Issue: Does the Court Have Jurisdiction Over the Controversy?
In seeking to nullify an act of the Philippine Senate on the ground that it contravenes the Constitution, the petition no doubt raises a
justiciable controversy. Where an action of the legislative branch is seriously alleged to have infringed the Constitution, it becomes
not only the right but in fact the duty of the judiciary to settle the dispute. "The question thus posed is judicial rather than political.
The duty (to adjudicate) remains to assure that the supremacy of the Constitution is upheld." 12 Once a "controversy as to the
application or interpretation of a constitutional provision is raised before this Court (as in the instant case), it becomes a legal issue
which the Court is bound by constitutional mandate to decide." 13
The jurisdiction of this Court to adjudicate the matters 14 raised in the petition is clearly set out in the 1987 Constitution, 15 as
follows:
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of any branch or instrumentality of the government.
The foregoing text emphasizes the judicial department's duty and power to strike down grave abuse of discretion on the part of any
branch or instrumentality of government including Congress. It is an innovation in our political law. 16As explained by former Chief
Justice Roberto Concepcion, 17 "the judiciary is the final arbiter on the question of whether or not a branch of government or any of
its officials has acted without jurisdiction or in excess of jurisdiction or so capriciously as to constitute an abuse of discretion
amounting to excess of jurisdiction. This is not only a judicial power but a duty to pass judgment on matters of this nature."
As this Court has repeatedly and firmly emphasized in many cases, 18 it will not shirk, digress from or abandon its sacred duty and
authority to uphold the Constitution in matters that involve grave abuse of discretion brought before it in appropriate cases,
committed by any officer, agency, instrumentality or department of the government.
As the petition alleges grave abuse of discretion and as there is no other plain, speedy or adequate remedy in the ordinary course of
law, we have no hesitation at all in holding that this petition should be given due course and the vital questions raised therein ruled
upon under Rule 65 of the Rules of Court. Indeed, certiorari, prohibition and mandamus are appropriate remedies to raise
constitutional issues and to review and/or prohibit/nullify, when proper, acts of legislative and executive officials. On this, we have
no equivocation.
We should stress that, in deciding to take jurisdiction over this petition, this Court will not review the wisdom of the decision of the
President and the Senate in enlisting the country into the WTO, or pass upon the merits of trade liberalization as a policy espoused
by said international body. Neither will it rule on the propriety of the government's economic policy of reducing/removing tariffs,
taxes, subsidies, quantitative restrictions, and other import/trade barriers. Rather, it will only exercise its constitutional duty "to
determine whether or not there had been a grave abuse of discretion amounting to lack or excess of jurisdiction" on the part of the
Senate in ratifying the WTO Agreement and its three annexes.
Second Issue: The WTO Agreement and Economic Nationalism
This is the lis mota, the main issue, raised by the petition.
Petitioners vigorously argue that the "letter, spirit and intent" of the Constitution mandating "economic nationalism" are violated by
the so-called "parity provisions" and "national treatment" clauses scattered in various parts not only of the WTO Agreement and its
annexes but also in the Ministerial Decisions and Declarations and in the Understanding on Commitments in Financial Services.
Specifically, the "flagship" constitutional provisions referred to are Sec 19, Article II, and Secs. 10 and 12, Article XII, of the
Constitution, which are worded as follows:
Article II
DECLARATION OF PRINCIPLES AND STATE POLICIES
Sec. 19. The State shall develop a self-reliant and independent national economy effectively controlled by Filipinos.
Article XII
NATIONAL ECONOMY AND PATRIMONY
Sec. 10. . . . The Congress shall enact measures that will encourage the formation and operation of enterprises whose capital is
wholly owned by Filipinos.
In the grant of rights, privileges, and concessions covering the national economy and patrimony, the State shall give preference to
qualified Filipinos.
Sec. 12. The State shall promote the preferential use of Filipino labor, domestic materials and locally produced goods, and adopt
measures that help make them competitive.
Petitioners aver that these sacred constitutional principles are desecrated by the following WTO provisions quoted in their
memorandum:
a) In the area of investment measures related to trade in goods (TRIMS, for brevity):
Article 2
National Treatment and Quantitative Restrictions.
1. Without prejudice to other rights and obligations under GATT 1994, no Member shall apply any TRIM that is inconsistent with the
provisions of Article II or Article XI of GATT 1994.
2. An illustrative list of TRIMS that are inconsistent with the obligations of general elimination of quantitative restrictions provided
for in paragraph I of Article XI of GATT 1994 is contained in the Annex to this Agreement." (Agreement on Trade-Related Investment
Measures, Vol. 27, Uruguay Round, Legal Instruments, p. 22121, emphasis supplied).
The Annex referred to reads as follows:
ANNEX
Illustrative List
1. TRIMS that are inconsistent with the obligation of national treatment provided for in paragraph 4 of Article III of GATT 1994
include those which are mandatory or enforceable under domestic law or under administrative rulings, or compliance with which is
necessary to obtain an advantage, and which require:
(a) the purchase or use by an enterprise of products of domestic origin or from any domestic source, whether specified in terms of
particular products, in terms of volume or value of products, or in terms of proportion of volume or value of its local production; or
(b) that an enterprise's purchases or use of imported products be limited to an amount related to the volume or value of local
products that it exports.
2. TRIMS that are inconsistent with the obligations of general elimination of quantitative restrictions provided for in paragraph 1 of
Article XI of GATT 1994 include those which are mandatory or enforceable under domestic laws or under administrative rulings, or
compliance with which is necessary to obtain an advantage, and which restrict:
(a) the importation by an enterprise of products used in or related to the local production that it exports;
(b) the importation by an enterprise of products used in or related to its local production by restricting its access to foreign exchange
inflows attributable to the enterprise; or
(c) the exportation or sale for export specified in terms of particular products, in terms of volume or value of products, or in terms of
a preparation of volume or value of its local production. (Annex to the Agreement on Trade-Related Investment Measures, Vol. 27,
Uruguay Round Legal Documents, p. 22125, emphasis supplied).
The paragraph 4 of Article III of GATT 1994 referred to is quoted as follows:
The products of the territory of any contracting party imported into the territory of any other contracting party shall be accorded
treatment no less favorable than that accorded to like products of national origin in respect of laws, regulations and requirements
affecting their internal sale, offering for sale, purchase, transportation, distribution or use, the provisions of this paragraph shall not
prevent the application of differential internal transportation charges which are based exclusively on the economic operation of the
means of transport and not on the nationality of the product." (Article III, GATT 1947, as amended by the Protocol Modifying Part II,
and Article XXVI of GATT, 14 September 1948, 62 UMTS 82-84 in relation to paragraph 1(a) of the General Agreement on Tariffs and
Trade 1994, Vol. 1, Uruguay Round, Legal Instruments p. 177, emphasis supplied).
(b) In the area of trade related aspects of intellectual property rights (TRIPS, for brevity):
Each Member shall accord to the nationals of other Members treatment no less favourable than that it accords to its own
nationals with regard to the protection of intellectual property. . . (par. 1 Article 3, Agreement on Trade-Related Aspect of
Intellectual Property rights, Vol. 31, Uruguay Round, Legal Instruments, p. 25432 (emphasis supplied)
(c) In the area of the General Agreement on Trade in Services:
National Treatment
1. In the sectors inscribed in its schedule, and subject to any conditions and qualifications set out therein, each Member shall accord
to services and service suppliers of any other Member, in respect of all measures affecting the supply of services, treatment no less
favourable than it accords to its own like services and service suppliers.
2. A Member may meet the requirement of paragraph I by according to services and service suppliers of any other Member, either
formally suppliers of any other Member, either formally identical treatment or formally different treatment to that it accords to its
own like services and service suppliers.
3. Formally identical or formally different treatment shall be considered to be less favourable if it modifies the conditions of
completion in favour of services or service suppliers of the Member compared to like services or service suppliers of any other
Member. (Article XVII, General Agreement on Trade in Services, Vol. 28, Uruguay Round Legal Instruments, p. 22610 emphasis
supplied).
It is petitioners' position that the foregoing "national treatment" and "parity provisions" of the WTO Agreement "place nationals and
products of member countries on the same footing as Filipinos and local products," in contravention of the "Filipino First" policy of
the Constitution. They allegedly render meaningless the phrase "effectively controlled by Filipinos." The constitutional conflict
becomes more manifest when viewed in the context of the clear duty imposed on the Philippines as a WTO member to ensure the
conformity of its laws, regulations and administrative procedures with its obligations as provided in the annexed
agreements. 20 Petitioners further argue that these provisions contravene constitutional limitations on the role exports play in
national development and negate the preferential treatment accorded to Filipino labor, domestic materials and locally produced
goods.
On the other hand, respondents through the Solicitor General counter (1) that such Charter provisions are not self-executing and
merely set out general policies; (2) that these nationalistic portions of the Constitution invoked by petitioners should not be read in
isolation but should be related to other relevant provisions of Art. XII, particularly Secs. 1 and 13 thereof; (3) that read properly, the
cited WTO clauses do not conflict with Constitution; and (4) that the WTO Agreement contains sufficient provisions to protect
developing countries like the Philippines from the harshness of sudden trade liberalization.
We shall now discuss and rule on these arguments.
Declaration of Principles Not Self-Executing
By its very title, Article II of the Constitution is a "declaration of principles and state policies." The counterpart of this article in the
1935 Constitution 21 is called the "basic political creed of the nation" by Dean Vicente Sinco. 22 These principles in Article II are not
intended to be self-executing principles ready for enforcement through the courts. 23They are used by the judiciary as aids or as
guides in the exercise of its power of judicial review, and by the legislature in its enactment of laws. As held in the leading case
of Kilosbayan, Incorporated vs. Morato, 24 the principles and state policies enumerated in Article II and some sections of Article XII
are not "self-executing provisions, the disregard of which can give rise to a cause of action in the courts. They do not embody
judicially enforceable constitutional rights but guidelines for legislation."
In the same light, we held in Basco vs. Pagcor 25 that broad constitutional principles need legislative enactments to implement the,
thus:
On petitioners' allegation that P.D. 1869 violates Sections 11 (Personal Dignity) 12 (Family) and 13 (Role of Youth) of Article II;
Section 13 (Social Justice) of Article XIII and Section 2 (Educational Values) of Article XIV of the 1987 Constitution, suffice it to state
also that these are merely statements of principles and policies. As such, they are basically not self-executing, meaning a law should
be passed by Congress to clearly define and effectuate such principles.
In general, therefore, the 1935 provisions were not intended to be self-executing principles ready for enforcement through the
courts. They were rather directives addressed to the executive and to the legislature. If the executive and the legislature failed to
heed the directives of the article, the available remedy was not judicial but political. The electorate could express their displeasure
with the failure of the executive and the legislature through the language of the ballot. (Bernas, Vol. II, p. 2).
The reasons for denying a cause of action to an alleged infringement of board constitutional principles are sourced from basic
considerations of due process and the lack of judicial authority to wade "into the uncharted ocean of social and economic policy
making." Mr. Justice Florentino P. Feliciano in his concurring opinion in Oposa vs. Factoran, Jr., explained these reasons as follows:
My suggestion is simply that petitioners must, before the trial court, show a more specific legal right — a right cast in language of a
significantly lower order of generality than Article II (15) of the Constitution — that is or may be violated by the actions, or failures to
act, imputed to the public respondent by petitioners so that the trial court can validly render judgment grating all or part of the relief
prayed for. To my mind, the court should be understood as simply saying that such a more specific legal right or rights may well exist
in our corpus of law, considering the general policy principles found in the Constitution and the existence of the Philippine
Environment Code, and that the trial court should have given petitioners an effective opportunity so to demonstrate, instead of
aborting the proceedings on a motion to dismiss.
It seems to me important that the legal right which is an essential component of a cause of action be a specific, operable legal right,
rather than a constitutional or statutory policy, for at least two (2) reasons. One is that unless the legal right claimed to have been
violated or disregarded is given specification in operational terms, defendants may well be unable to defend themselves intelligently
and effectively; in other words, there are due process dimensions to this matter.
The second is a broader-gauge consideration — where a specific violation of law or applicable regulation is not alleged or proved,
petitioners can be expected to fall back on the expanded conception of judicial power in the second paragraph of Section 1 of Article
VIII of the Constitution which reads:
Sec. 1. . . .
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable
and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the Government. (Emphasis supplied)
When substantive standards as general as "the right to a balanced and healthy ecology" and "the right to health" are combined with
remedial standards as broad ranging as "a grave abuse of discretion amounting to lack or excess of jurisdiction," the result will be, it
is respectfully submitted, to propel courts into the uncharted ocean of social and economic policy making. At least in respect of the
vast area of environmental protection and management, our courts have no claim to special technical competence and experience
and professional qualification. Where no specific, operable norms and standards are shown to exist, then the policy making
departments — the legislative and executive departments — must be given a real and effective opportunity to fashion and
promulgate those norms and standards, and to implement them before the courts should intervene.
Economic Nationalism Should Be Read with Other Constitutional Mandates to Attain Balanced Development of Economy
On the other hand, Secs. 10 and 12 of Article XII, apart from merely laying down general principles relating to the national economy
and patrimony, should be read and understood in relation to the other sections in said article, especially Secs. 1 and 13 thereof
which read:
Sec. 1. The goals of the national economy are a more equitable distribution of opportunities, income, and wealth; a sustained
increase in the amount of goods and services produced by the nation for the benefit of the people; and an expanding productivity as
the key to raising the quality of life for all especially the underprivileged.
The State shall promote industrialization and full employment based on sound agricultural development and agrarian reform,
through industries that make full and efficient use of human and natural resources, and which are competitive in both domestic and
foreign markets. However, the State shall protect Filipino enterprises against unfair foreign competition and trade practices.
In the pursuit of these goals, all sectors of the economy and all regions of the country shall be given optimum opportunity to
develop. . . .
Sec. 13. The State shall pursue a trade policy that serves the general welfare and utilizes all forms and arrangements of exchange on
the basis of equality and reciprocity.
As pointed out by the Solicitor General, Sec. 1 lays down the basic goals of national economic development, as follows:
1. A more equitable distribution of opportunities, income and wealth;
2. A sustained increase in the amount of goods and services provided by the nation for the benefit of the people; and
3. An expanding productivity as the key to raising the quality of life for all especially the underprivileged.
With these goals in context, the Constitution then ordains the ideals of economic nationalism (1) by expressing preference in favor
of qualified Filipinos "in the grant of rights, privileges and concessions covering the national economy and patrimony" 27 and in the
use of "Filipino labor, domestic materials and locally-produced goods"; (2) by mandating the State to "adopt measures that help
make them competitive; 28 and (3) by requiring the State to "develop a self-reliant and independent national economy effectively
controlled by Filipinos." 29 In similar language, the Constitution takes into account the realities of the outside world as it requires the
pursuit of "a trade policy that serves the general welfare and utilizes all forms and arrangements of exchange on the basis of equality
ad reciprocity"; 30 and speaks of industries "which are competitive in both domestic and foreign markets" as well as of the protection
of "Filipino enterprises against unfair foreign competition and trade practices."
It is true that in the recent case of Manila Prince Hotel vs. Government Service Insurance System, et al., 31 this Court held that "Sec.
10, second par., Art. XII of the 1987 Constitution is a mandatory, positive command which is complete in itself and which needs no
further guidelines or implementing laws or rule for its enforcement. From its very words the provision does not require any
legislation to put it in operation. It is per se judicially enforceable." However, as the constitutional provision itself states, it is
enforceable only in regard to "the grants of rights, privileges and concessions covering national economy and patrimony" and not to
every aspect of trade and commerce. It refers to exceptions rather than the rule. The issue here is not whether this paragraph of
Sec. 10 of Art. XII is self-executing or not. Rather, the issue is whether, as a rule, there are enough balancing provisions in the
Constitution to allow the Senate to ratify the Philippine concurrence in the WTO Agreement. And we hold that there are.
All told, while the Constitution indeed mandates a bias in favor of Filipino goods, services, labor and enterprises, at the same time, it
recognizes the need for business exchange with the rest of the world on the bases of equality and reciprocity and limits protection of
Filipino enterprises only against foreign competition and trade practices that are unfair. In other words, the Constitution did not
intend to pursue an isolationist policy. It did not shut out foreign investments, goods and services in the development of the
Philippine economy. While the Constitution does not encourage the unlimited entry of foreign goods, services and investments into
the country, it does not prohibit them either. In fact, it allows an exchange on the basis of equality and reciprocity, frowning only on
foreign competition that is unfair.
WTO Recognizes Need to Protect Weak Economies
Upon the other hand, respondents maintain that the WTO itself has some built-in advantages to protect weak and developing
economies, which comprise the vast majority of its members. Unlike in the UN where major states have permanent seats and veto
powers in the Security Council, in the WTO, decisions are made on the basis of sovereign equality, with each member's vote equal in
weight to that of any other. There is no WTO equivalent of the UN Security Council.
WTO decides by consensus whenever possible, otherwise, decisions of the Ministerial Conference and the General Council shall be
taken by the majority of the votes cast, except in cases of interpretation of the Agreement or waiver of the obligation of a member
which would require three fourths vote. Amendments would require two thirds vote in general. Amendments to MFN provisions and
the Amendments provision will require assent of all members. Any member may withdraw from the Agreement upon the expiration
of six months from the date of notice of withdrawals.
Hence, poor countries can protect their common interests more effectively through the WTO than through one-on-one negotiations
with developed countries. Within the WTO, developing countries can form powerful blocs to push their economic agenda more
decisively than outside the Organization. This is not merely a matter of practical alliances but a negotiating strategy rooted in law.
Thus, the basic principles underlying the WTO Agreement recognize the need of developing countries like the Philippines to "share in
the growth in international trade commensurate with the needs of their economic development." These basic principles are found in
the preamble of the WTO Agreement as follows:
The Parties to this Agreement,
Recognizing that their relations in the field of trade and economic endeavour should be conducted with a view to raising standards
of living, ensuring full employment and a large and steadily growing volume of real income and effective demand, and expanding the
production of and trade in goods and services, while allowing for the optimal use of the world's resources in accordance with the
objective of sustainable development, seeking both to protect and preserve the environment and to enhance the means for doing
so in a manner consistent with their respective needs and concerns at different levels of economic development,
Recognizing further that there is need for positive efforts designed to ensure that developing countries, and especially the least
developed among them, secure a share in the growth in international trade commensurate with the needs of their economic
development,
Being desirous of contributing to these objectives by entering into reciprocal and mutually advantageous arrangements directed to
the substantial reduction of tariffs and other barriers to trade and to the elimination of discriminatory treatment in international
trade relations,
Resolved, therefore, to develop an integrated, more viable and durable multilateral trading system encompassing the General
Agreement on Tariffs and Trade, the results of past trade liberalization efforts, and all of the results of the Uruguay Round of
Multilateral Trade Negotiations,
Determined to preserve the basic principles and to further the objectives underlying this multilateral trading system, . . . (emphasis
supplied.)
Specific WTO Provisos Protect Developing Countries
So too, the Solicitor General points out that pursuant to and consistent with the foregoing basic principles, the WTO Agreement
grants developing countries a more lenient treatment, giving their domestic industries some protection from the rush of foreign
competition. Thus, with respect to tariffs in general, preferential treatment is given to developing countries in terms of the amount
of tariff reduction and the period within which the reduction is to be spread out. Specifically, GATT requires an average
tariff reduction rate of 36% for developed countries to be effected within a period of six (6) years while developing countries —
including the Philippines — are required to effect an average tariff reduction of only 24% within ten (10) years.
In respect to domestic subsidy, GATT requires developed countries to reduce domestic support to agricultural products by 20% over
six (6) years, as compared to only 13% for developing countries to be effected within ten (10) years.
In regard to export subsidy for agricultural products, GATT requires developed countries to reduce their budgetary outlays for export
subsidy by 36% and export volumes receiving export subsidy by 21% within a period of six (6) years. For developing countries,
however, the reduction rate is only two-thirds of that prescribed for developed countries and a longer period of ten (10) years within
which to effect such reduction.
Moreover, GATT itself has provided built-in protection from unfair foreign competition and trade practices including anti-dumping
measures, countervailing measures and safeguards against import surges. Where local businesses are jeopardized by unfair foreign
competition, the Philippines can avail of these measures. There is hardly therefore any basis for the statement that under the WTO,
local industries and enterprises will all be wiped out and that Filipinos will be deprived of control of the economy. Quite the
contrary, the weaker situations of developing nations like the Philippines have been taken into account; thus, there would be no
basis to say that in joining the WTO, the respondents have gravely abused their discretion. True, they have made a bold decision to
steer the ship of state into the yet uncharted sea of economic liberalization. But such decision cannot be set aside on the ground of
grave abuse of discretion, simply because we disagree with it or simply because we believe only in other economic policies. As
earlier stated, the Court in taking jurisdiction of this case will not pass upon the advantages and disadvantages of trade liberalization
as an economic policy. It will only perform its constitutional duty of determining whether the Senate committed grave abuse of
discretion.
Constitution Does Not Rule Out Foreign Competition
Furthermore, the constitutional policy of a "self-reliant and independent national economy" does not necessarily rule out the entry
of foreign investments, goods and services. It contemplates neither "economic seclusion" nor "mendicancy in the international
community." As explained by Constitutional Commissioner Bernardo Villegas, sponsor of this constitutional policy:
Economic self-reliance is a primary objective of a developing country that is keenly aware of overdependence on external assistance
for even its most basic needs. It does not mean autarky or economic seclusion; rather, it means avoiding mendicancy in the
international community. Independence refers to the freedom from undue foreign control of the national economy, especially in
such strategic industries as in the development of natural resources and public utilities.
The WTO reliance on "most favored nation," "national treatment," and "trade without discrimination" cannot be struck down as
unconstitutional as in fact they are rules of equality and reciprocity that apply to all WTO members. Aside from envisioning a trade
policy based on "equality and reciprocity," 37 the fundamental law encourages industries that are "competitive in both domestic and
foreign markets," thereby demonstrating a clear policy against a sheltered domestic trade environment, but one in favor of the
gradual development of robust industries that can compete with the best in the foreign markets. Indeed, Filipino managers and
Filipino enterprises have shown capability and tenacity to compete internationally. And given a free trade environment, Filipino
entrepreneurs and managers in Hongkong have demonstrated the Filipino capacity to grow and to prosper against the best offered
under a policy of laissez faire.
Constitution Favors Consumers, Not Industries or Enterprises
The Constitution has not really shown any unbalanced bias in favor of any business or enterprise, nor does it contain any specific
pronouncement that Filipino companies should be pampered with a total proscription of foreign competition. On the other hand,
respondents claim that WTO/GATT aims to make available to the Filipino consumer the best goods and services obtainable
anywhere in the world at the most reasonable prices. Consequently, the question boils down to whether WTO/GATT will favor the
general welfare of the public at large.
Will adherence to the WTO treaty bring this ideal (of favoring the general welfare) to reality?
Will WTO/GATT succeed in promoting the Filipinos' general welfare because it will — as promised by its promoters — expand the
country's exports and generate more employment?
Will it bring more prosperity, employment, purchasing power and quality products at the most reasonable rates to the Filipino
public?
The responses to these questions involve "judgment calls" by our policy makers, for which they are answerable to our people during
appropriate electoral exercises. Such questions and the answers thereto are not subject to judicial pronouncements based on grave
abuse of discretion.
Constitution Designed to Meet Future Events and Contingencies
No doubt, the WTO Agreement was not yet in existence when the Constitution was drafted and ratified in 1987. That does not mean
however that the Charter is necessarily flawed in the sense that its framers might not have anticipated the advent of a borderless
world of business. By the same token, the United Nations was not yet in existence when the 1935 Constitution became effective. Did
that necessarily mean that the then Constitution might not have contemplated a diminution of the absoluteness of sovereignty
when the Philippines signed the UN Charter, thereby effectively surrendering part of its control over its foreign relations to the
decisions of various UN organs like the Security Council?
It is not difficult to answer this question. Constitutions are designed to meet not only the vagaries of contemporary events. They
should be interpreted to cover even future and unknown circumstances. It is to the credit of its drafters that a Constitution can
withstand the assaults of bigots and infidels but at the same time bend with the refreshing winds of change necessitated by
unfolding events. As one eminent political law writer and respected jurist 38explains:
The Constitution must be quintessential rather than superficial, the root and not the blossom, the base and frame-work only of the
edifice that is yet to rise. It is but the core of the dream that must take shape, not in a twinkling by mandate of our delegates, but
slowly "in the crucible of Filipino minds and hearts," where it will in time develop its sinews and gradually gather its strength and
finally achieve its substance. In fine, the Constitution cannot, like the goddess Athena, rise full-grown from the brow of the
Constitutional Convention, nor can it conjure by mere fiat an instant Utopia. It must grow with the society it seeks to re-structure and
march apace with the progress of the race, drawing from the vicissitudes of history the dynamism and vitality that will keep it, far
from becoming a petrified rule, a pulsing, living law attuned to the heartbeat of the nation.
Third Issue: The WTO Agreement and Legislative Power
The WTO Agreement provides that "(e)ach Member shall ensure the conformity of its laws, regulations and administrative
procedures with its obligations as provided in the annexed Agreements." 39 Petitioners maintain that this undertaking "unduly limits,
restricts and impairs Philippine sovereignty, specifically the legislative power which under Sec. 2, Article VI of the 1987 Philippine
Constitution is vested in the Congress of the Philippines. It is an assault on the sovereign powers of the Philippines because this
means that Congress could not pass legislation that will be good for our national interest and general welfare if such legislation will
not conform with the WTO Agreement, which not only relates to the trade in goods . . . but also to the flow of investments and
money . . . as well as to a whole slew of agreements on socio-cultural matters . . .
More specifically, petitioners claim that said WTO proviso derogates from the power to tax, which is lodged in the Congress. 41 And
while the Constitution allows Congress to authorize the President to fix tariff rates, import and export quotas, tonnage and wharfage
dues, and other duties or imposts, such authority is subject to "specified limits and . . . such limitations and restrictions" as Congress
may provide, 42 as in fact it did under Sec. 401 of the Tariff and Customs Code.
Sovereignty Limited by International Law and Treaties
This Court notes and appreciates the ferocity and passion by which petitioners stressed their arguments on this issue. However,
while sovereignty has traditionally been deemed absolute and all-encompassing on the domestic level, it is however subject to
restrictions and limitations voluntarily agreed to by the Philippines, expressly or impliedly, as a member of the family of nations.
Unquestionably, the Constitution did not envision a hermit-type isolation of the country from the rest of the world. In its Declaration
of Principles and State Policies, the Constitution "adopts the generally accepted principles of international law as part of the law of
the land, and adheres to the policy of peace, equality, justice, freedom, cooperation and amity, with all nations." 43 By the doctrine
of incorporation, the country is bound by generally accepted principles of international law, which are considered to be
automatically part of our own laws. 44 One of the oldest and most fundamental rules in international law is pacta sunt servanda —
international agreements must be performed in good faith. "A treaty engagement is not a mere moral obligation but creates a
legally binding obligation on the parties . . . A state which has contracted valid international obligations is bound to make in its
legislations such modifications as may be necessary to ensure the fulfillment of the obligations undertaken." 45
By their inherent nature, treaties really limit or restrict the absoluteness of sovereignty. By their voluntary act, nations may
surrender some aspects of their state power in exchange for greater benefits granted by or derived from a convention or pact. After
all, states, like individuals, live with coequals, and in pursuit of mutually covenanted objectives and benefits, they also commonly
agree to limit the exercise of their otherwise absolute rights. Thus, treaties have been used to record agreements between States
concerning such widely diverse matters as, for example, the lease of naval bases, the sale or cession of territory, the termination of
war, the regulation of conduct of hostilities, the formation of alliances, the regulation of commercial relations, the settling of claims,
the laying down of rules governing conduct in peace and the establishment of international organizations. 46 The sovereignty of a
state therefore cannot in fact and in reality be considered absolute. Certain restrictions enter into the picture: (1) limitations
imposed by the very nature of membership in the family of nations and (2) limitations imposed by treaty stipulations. As aptly put by
John F. Kennedy, "Today, no nation can build its destiny alone. The age of self-sufficient nationalism is over. The age of
interdependence is here."
UN Charter and Other Treaties Limit Sovereignty
Thus, when the Philippines joined the United Nations as one of its 51 charter members, it consented to restrict its sovereign rights
under the "concept of sovereignty as auto-limitation."47-A Under Article 2 of the UN Charter, "(a)ll members shall give the United
Nations every assistance in any action it takes in accordance with the present Charter, and shall refrain from giving assistance to any
state against which the United Nations is taking preventive or enforcement action." Such assistance includes payment of its
corresponding share not merely in administrative expenses but also in expenditures for the peace-keeping operations of the
organization. In its advisory opinion of July 20, 1961, the International Court of Justice held that money used by the United Nations
Emergency Force in the Middle East and in the Congo were "expenses of the United Nations" under Article 17, paragraph 2, of the
UN Charter. Hence, all its members must bear their corresponding share in such expenses. In this sense, the Philippine Congress is
restricted in its power to appropriate. It is compelled to appropriate funds whether it agrees with such peace-keeping expenses or
not. So too, under Article 105 of the said Charter, the UN and its representatives enjoy diplomatic privileges and immunities, thereby
limiting again the exercise of sovereignty of members within their own territory. Another example: although "sovereign equality"
and "domestic jurisdiction" of all members are set forth as underlying principles in the UN Charter, such provisos are however
subject to enforcement measures decided by the Security Council for the maintenance of international peace and security under
Chapter VII of the Charter. A final example: under Article 103, "(i)n the event of a conflict between the obligations of the Members
of the United Nations under the present Charter and their obligations under any other international agreement, their obligation
under the present charter shall prevail," thus unquestionably denying the Philippines — as a member — the sovereign power to
make a choice as to which of conflicting obligations, if any, to honor.
Apart from the UN Treaty, the Philippines has entered into many other international pacts — both bilateral and multilateral — that
involve limitations on Philippine sovereignty. These are enumerated by the Solicitor General in his Compliance dated October 24,
1996, as follows:
(a) Bilateral convention with the United States regarding taxes on income, where the Philippines agreed, among others, to exempt
from tax, income received in the Philippines by, among others, the Federal Reserve Bank of the United States, the Export/Import
Bank of the United States, the Overseas Private Investment Corporation of the United States. Likewise, in said convention, wages,
salaries and similar remunerations paid by the United States to its citizens for labor and personal services performed by them as
employees or officials of the United States are exempt from income tax by the Philippines.
(b) Bilateral agreement with Belgium, providing, among others, for the avoidance of double taxation with respect to taxes on
income.
(c) Bilateral convention with the Kingdom of Sweden for the avoidance of double taxation.
(d) Bilateral convention with the French Republic for the avoidance of double taxation.
(e) Bilateral air transport agreement with Korea where the Philippines agreed to exempt from all customs duties, inspection fees and
other duties or taxes aircrafts of South Korea and the regular equipment, spare parts and supplies arriving with said aircrafts.
(f) Bilateral air service agreement with Japan, where the Philippines agreed to exempt from customs duties, excise taxes, inspection
fees and other similar duties, taxes or charges fuel, lubricating oils, spare parts, regular equipment, stores on board Japanese
aircrafts while on Philippine soil.
(g) Bilateral air service agreement with Belgium where the Philippines granted Belgian air carriers the same privileges as those
granted to Japanese and Korean air carriers under separate air service agreements.
(h) Bilateral notes with Israel for the abolition of transit and visitor visas where the Philippines exempted Israeli nationals from the
requirement of obtaining transit or visitor visas for a sojourn in the Philippines not exceeding 59 days.
(i) Bilateral agreement with France exempting French nationals from the requirement of obtaining transit and visitor visa for a
sojourn not exceeding 59 days.
(j) Multilateral Convention on Special Missions, where the Philippines agreed that premises of Special Missions in the Philippines are
inviolable and its agents cannot enter said premises without consent of the Head of Mission concerned. Special Missions are also
exempted from customs duties, taxes and related charges.
(k) Multilateral convention on the Law of Treaties. In this convention, the Philippines agreed to be governed by the Vienna
Convention on the Law of Treaties.
(l) Declaration of the President of the Philippines accepting compulsory jurisdiction of the International Court of Justice. The
International Court of Justice has jurisdiction in all legal disputes concerning the interpretation of a treaty, any question of
international law, the existence of any fact which, if established, would constitute a breach "of international obligation."
In the foregoing treaties, the Philippines has effectively agreed to limit the exercise of its sovereign powers of taxation, eminent
domain and police power. The underlying consideration in this partial surrender of sovereignty is the reciprocal commitment of the
other contracting states in granting the same privilege and immunities to the Philippines, its officials and its citizens. The same
reciprocity characterizes the Philippine commitments under WTO-GATT.
International treaties, whether relating to nuclear disarmament, human rights, the environment, the law of the sea, or trade,
constrain domestic political sovereignty through the assumption of external obligations. But unless anarchy in international relations
is preferred as an alternative, in most cases we accept that the benefits of the reciprocal obligations involved outweigh the costs
associated with any loss of political sovereignty. (T)rade treaties that structure relations by reference to durable, well-defined
substantive norms and objective dispute resolution procedures reduce the risks of larger countries exploiting raw economic power
to bully smaller countries, by subjecting power relations to some form of legal ordering. In addition, smaller countries typically stand
to gain disproportionately from trade liberalization. This is due to the simple fact that liberalization will provide access to a larger set
of potential new trading relationship than in case of the larger country gaining enhanced success to the smaller country's market. 48
The point is that, as shown by the foregoing treaties, a portion of sovereignty may be waived without violating the Constitution,
based on the rationale that the Philippines "adopts the generally accepted principles of international law as part of the law of the
land and adheres to the policy of . . . cooperation and amity with all nations."
Fourth Issue: The WTO Agreement and Judicial Power
Petitioners aver that paragraph 1, Article 34 of the General Provisions and Basic Principles of the Agreement on Trade-Related
Aspects of Intellectual Property Rights (TRIPS) intrudes on the power of the Supreme Court to promulgate rules concerning pleading,
practice and procedures.
To understand the scope and meaning of Article 34, TRIPS, it will be fruitful to restate its full text as follows:
Article 34
Process Patents: Burden of Proof
1. For the purposes of civil proceedings in respect of the infringement of the rights of the owner referred to in paragraph 1 (b) of
Article 28, if the subject matter of a patent is a process for obtaining a product, the judicial authorities shall have the authority to
order the defendant to prove that the process to obtain an identical product is different from the patented process. Therefore,
Members shall provide, in at least one of the following circumstances, that any identical product when produced without the
consent of the patent owner shall, in the absence of proof to the contrary, be deemed to have been obtained by the patented
process:
(a) if the product obtained by the patented process is new;
(b) if there is a substantial likelihood that the identical product was made by the process and the owner of the patent has been
unable through reasonable efforts to determine the process actually used.
2. Any Member shall be free to provide that the burden of proof indicated in paragraph 1 shall be on the alleged infringer only if the
condition referred to in subparagraph (a) is fulfilled or only if the condition referred to in subparagraph (b) is fulfilled.
3. In the adduction of proof to the contrary, the legitimate interests of defendants in protecting their manufacturing and business
secrets shall be taken into account.
From the above, a WTO Member is required to provide a rule of disputable (not the words "in the absence of proof to the contrary")
presumption that a product shown to be identical to one produced with the use of a patented process shall be deemed to have been
obtained by the (illegal) use of the said patented process, (1) where such product obtained by the patented product is new, or (2)
where there is "substantial likelihood" that the identical product was made with the use of the said patented process but the owner
of the patent could not determine the exact process used in obtaining such identical product. Hence, the "burden of proof"
contemplated by Article 34 should actually be understood as the duty of the alleged patent infringer to overthrow such
presumption. Such burden, properly understood, actually refers to the "burden of evidence" (burden of going forward) placed on
the producer of the identical (or fake) product to show that his product was produced without the use of the patented process.
The foregoing notwithstanding, the patent owner still has the "burden of proof" since, regardless of the presumption provided
under paragraph 1 of Article 34, such owner still has to introduce evidence of the existence of the alleged identical product, the fact
that it is "identical" to the genuine one produced by the patented process and the fact of "newness" of the genuine product or the
fact of "substantial likelihood" that the identical product was made by the patented process.
The foregoing should really present no problem in changing the rules of evidence as the present law on the subject, Republic Act No.
165, as amended, otherwise known as the Patent Law, provides a similar presumption in cases of infringement of patented design or
utility model, thus:
Sec. 60. Infringement. — Infringement of a design patent or of a patent for utility model shall consist in unauthorized copying of the
patented design or utility model for the purpose of trade or industry in the article or product and in the making, using or selling of
the article or product copying the patented design or utility model. Identity or substantial identity with the patented design or utility
model shall constitute evidence of copying. (emphasis supplied)
Moreover, it should be noted that the requirement of Article 34 to provide a disputable presumption applies only if (1) the product
obtained by the patented process in NEW or (2) there is a substantial likelihood that the identical product was made by the process
and the process owner has not been able through reasonable effort to determine the process used. Where either of these two
provisos does not obtain, members shall be free to determine the appropriate method of implementing the provisions of TRIPS
within their own internal systems and processes.
By and large, the arguments adduced in connection with our disposition of the third issue — derogation of legislative power — will
apply to this fourth issue also. Suffice it to say that the reciprocity clause more than justifies such intrusion, if any actually exists.
Besides, Article 34 does not contain an unreasonable burden, consistent as it is with due process and the concept of adversarial
dispute settlement inherent in our judicial system.
So too, since the Philippine is a signatory to most international conventions on patents, trademarks and copyrights, the adjustment
in legislation and rules of procedure will not be substantial.
Fifth Issue: Concurrence Only in the WTO Agreement and Not in Other Documents Contained in the Final Act
Petitioners allege that the Senate concurrence in the WTO Agreement and its annexes — but not in the other documents referred to
in the Final Act, namely the Ministerial Declaration and Decisions and the Understanding on Commitments in Financial Services — is
defective and insufficient and thus constitutes abuse of discretion. They submit that such concurrence in the WTO
Agreement alone is flawed because it is in effect a rejection of the Final Act, which in turn was the document signed by Secretary
Navarro, in representation of the Republic upon authority of the President. They contend that the second letter of the President to
the Senate which enumerated what constitutes the Final Act should have been the subject of concurrence of the Senate.
"A final act, sometimes called protocol de cloture, is an instrument which records the winding up of the proceedings of a diplomatic
conference and usually includes a reproduction of the texts of treaties, conventions, recommendations and other acts agreed upon
and signed by the plenipotentiaries attending the conference." It is not the treaty itself. It is rather a summary of the proceedings of
a protracted conference which may have taken place over several years. The text of the "Final Act Embodying the Results of the
Uruguay Round of Multilateral Trade Negotiations" is contained in just one page in Vol. I of the 36-volume Uruguay Round of
Multilateral Trade Negotiations. By signing said Final Act, Secretary Navarro as representative of the Republic of the Philippines
undertook:
(a) to submit, as appropriate, the WTO Agreement for the consideration of their respective competent authorities with a view to
seeking approval of the Agreement in accordance with their procedures; and
(b) to adopt the Ministerial Declarations and Decisions.
The assailed Senate Resolution No. 97 expressed concurrence in exactly what the Final Act required from its signatories, namely,
concurrence of the Senate in the WTO Agreement.
The Ministerial Declarations and Decisions were deemed adopted without need for ratification. They were approved by the
ministers by virtue of Article XXV: 1 of GATT which provides that representatives of the members can meet "to give effect to those
provisions of this Agreement which invoke joint action, and generally with a view to facilitating the operation and furthering the
objectives of this Agreement."
The Understanding on Commitments in Financial Services also approved in Marrakesh does not apply to the Philippines. It applies
only to those 27 Members which "have indicated in their respective schedules of commitments on standstill, elimination of
monopoly, expansion of operation of existing financial service suppliers, temporary entry of personnel, free transfer and processing
of information, and national treatment with respect to access to payment, clearing systems and refinancing available in the normal
course of business."
On the other hand, the WTO Agreement itself expresses what multilateral agreements are deemed included as its integral
parts, 58 as follows:
Article II
Scope of the WTO
1. The WTO shall provide the common institutional frame-work for the conduct of trade relations among its Members in matters to
the agreements and associated legal instruments included in the Annexes to this Agreement.
2. The Agreements and associated legal instruments included in Annexes 1, 2, and 3, (hereinafter referred to as "Multilateral
Agreements") are integral parts of this Agreement, binding on all Members.
3. The Agreements and associated legal instruments included in Annex 4 (hereinafter referred to as "Plurilateral Trade Agreements")
are also part of this Agreement for those Members that have accepted them, and are binding on those Members. The Plurilateral
Trade Agreements do not create either obligation or rights for Members that have not accepted them.
4. The General Agreement on Tariffs and Trade 1994 as specified in annex 1A (hereinafter referred to as "GATT 1994") is legally
distinct from the General Agreement on Tariffs and Trade, dated 30 October 1947, annexed to the Final Act adopted at the
conclusion of the Second Session of the Preparatory Committee of the United Nations Conference on Trade and Employment, as
subsequently rectified, amended or modified (hereinafter referred to as "GATT 1947").
It should be added that the Senate was well-aware of what it was concurring in as shown by the members' deliberation on August
25, 1994. After reading the letter of President Ramos dated August 11, 1994, 59 the senators
of the Republic minutely dissected what the Senate was concurring in, as follows: 60
THE CHAIRMAN: Yes. Now, the question of the validity of the submission came up in the first day hearing of this Committee
yesterday. Was the observation made by Senator Tañada that what was submitted to the Senate was not the agreement on
establishing the World Trade Organization by the final act of the Uruguay Round which is not the same as the agreement
establishing the World Trade Organization? And on that basis, Senator Tolentino raised a point of order which, however, he agreed
to withdraw upon understanding that his suggestion for an alternative solution at that time was acceptable. That suggestion was to
treat the proceedings of the Committee as being in the nature of briefings for Senators until the question of the submission could be
clarified.
And so, Secretary Romulo, in effect, is the President submitting a new . . . is he making a new submission which improves on the
clarity of the first submission?
MR. ROMULO: Mr. Chairman, to make sure that it is clear cut and there should be no misunderstanding, it was his intention to clarify
all matters by giving this letter.
THE CHAIRMAN: Thank you.
Can this Committee hear from Senator Tañada and later on Senator Tolentino since they were the ones that raised this question
yesterday?
Senator Tañada, please.
SEN. TAÑADA: Thank you, Mr. Chairman.
Based on what Secretary Romulo has read, it would now clearly appear that what is being submitted to the Senate for ratification is
not the Final Act of the Uruguay Round, but rather the Agreement on the World Trade Organization as well as the Ministerial
Declarations and Decisions, and the Understanding and Commitments in Financial Services.
I am now satisfied with the wording of the new submission of President Ramos.
SEN. TAÑADA. . . . of President Ramos, Mr. Chairman.
THE CHAIRMAN. Thank you, Senator Tañada. Can we hear from Senator Tolentino? And after him Senator Neptali Gonzales and
Senator Lina.
SEN. TOLENTINO, Mr. Chairman, I have not seen the new submission actually transmitted to us but I saw the draft of his earlier, and I
think it now complies with the provisions of the Constitution, and with the Final Act itself . The Constitution does not require us to
ratify the Final Act. It requires us to ratify the Agreement which is now being submitted. The Final Act itself specifies what is going to
be submitted to with the governments of the participants.
In paragraph 2 of the Final Act, we read and I quote:
By signing the present Final Act, the representatives agree: (a) to submit as appropriate the WTO Agreement for the consideration of
the respective competent authorities with a view to seeking approval of the Agreement in accordance with their procedures.
In other words, it is not the Final Act that was agreed to be submitted to the governments for ratification or acceptance as whatever
their constitutional procedures may provide but it is the World Trade Organization Agreement. And if that is the one that is being
submitted now, I think it satisfies both the Constitution and the Final Act itself .
Thank you, Mr. Chairman.
THE CHAIRMAN. Thank you, Senator Tolentino, May I call on Senator Gonzales.
SEN. GONZALES. Mr. Chairman, my views on this matter are already a matter of record. And they had been adequately reflected in
the journal of yesterday's session and I don't see any need for repeating the same.
Now, I would consider the new submission as an act ex abudante cautela.
THE CHAIRMAN. Thank you, Senator Gonzales. Senator Lina, do you want to make any comment on this?
SEN. LINA. Mr. President, I agree with the observation just made by Senator Gonzales out of the abundance of question. Then the
new submission is, I believe, stating the obvious and therefore I have no further comment to make.
Epilogue
In praying for the nullification of the Philippine ratification of the WTO Agreement, petitioners are invoking this Court's
constitutionally imposed duty "to determine whether or not there has been grave abuse of discretion amounting to lack or excess of
jurisdiction" on the part of the Senate in giving its concurrence therein via Senate Resolution No. 97. Procedurally, a writ
of certiorari grounded on grave abuse of discretion may be issued by the Court under Rule 65 of the Rules of Court when it is amply
shown that petitioners have no other plain, speedy and adequate remedy in the ordinary course of law.
By grave abuse of discretion is meant such capricious and whimsical exercise of judgment as is equivalent to lack of
jurisdiction. 61 Mere abuse of discretion is not enough. It must be grave abuse of discretion as when the power is exercised in an
arbitrary or despotic manner by reason of passion or personal hostility, and must be so patent and so gross as to amount to an
evasion of a positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law. Failure on the
part of the petitioner to show grave abuse of discretion will result in the dismissal of the petition.
In rendering this Decision, this Court never forgets that the Senate, whose act is under review, is one of two sovereign houses of
Congress and is thus entitled to great respect in its actions. It is itself a constitutional body independent and coordinate, and thus its
actions are presumed regular and done in good faith. Unless convincing proof and persuasive arguments are presented to overthrow
such presumptions, this Court will resolve every doubt in its favor. Using the foregoing well-accepted definition of grave abuse of
discretion and the presumption of regularity in the Senate's processes, this Court cannot find any cogent reason to impute grave
abuse of discretion to the Senate's exercise of its power of concurrence in the WTO Agreement granted it by Sec. 21 of Article VII of
the Constitution.
It is true, as alleged by petitioners, that broad constitutional principles require the State to develop an independent national
economy effectively controlled by Filipinos; and to protect and/or prefer Filipino labor, products, domestic materials and locally
produced goods. But it is equally true that such principles — while serving as judicial and legislative guides — are not in themselves
sources of causes of action. Moreover, there are other equally fundamental constitutional principles relied upon by the Senate
which mandate the pursuit of a "trade policy that serves the general welfare and utilizes all forms and arrangements of exchange on
the basis of equality and reciprocity" and the promotion of industries "which are competitive in both domestic and foreign markets,"
thereby justifying its acceptance of said treaty. So too, the alleged impairment of sovereignty in the exercise of legislative and
judicial powers is balanced by the adoption of the generally accepted principles of international law as part of the law of the land
and the adherence of the Constitution to the policy of cooperation and amity with all nations.
That the Senate, after deliberation and voting, voluntarily and overwhelmingly gave its consent to the WTO Agreement thereby
making it "a part of the law of the land" is a legitimate exercise of its sovereign duty and power. We find no "patent and gross"
arbitrariness or despotism "by reason of passion or personal hostility" in such exercise. It is not impossible to surmise that this Court,
or at least some of its members, may even agree with petitioners that it is more advantageous to the national interest to strike
down Senate Resolution No. 97. But that is not a legal reason to attribute grave abuse of discretion to the Senate and to nullify its
decision. To do so would constitute grave abuse in the exercise of our own judicial power and duty. Ineludably, what the Senate did
was a valid exercise of its authority. As to whether such exercise was wise, beneficial or viable is outside the realm of judicial inquiry
and review. That is a matter between the elected policy makers and the people. As to whether the nation should join the worldwide
march toward trade liberalization and economic globalization is a matter that our people should determine in electing their policy
makers. After all, the WTO Agreement allows withdrawal of membership, should this be the political desire of a member.
The eminent futurist John Naisbitt, author of the best seller Megatrends, predicts an Asian Renaissance 65 where "the East will
become the dominant region of the world economically, politically and culturally in the next century." He refers to the "free market"
espoused by WTO as the "catalyst" in this coming Asian ascendancy. There are at present about 31 countries including China, Russia
and Saudi Arabia negotiating for membership in the WTO. Notwithstanding objections against possible limitations on national
sovereignty, the WTO remains as the only viable structure for multilateral trading and the veritable forum for the development of
international trade law. The alternative to WTO is isolation, stagnation, if not economic self-destruction. Duly enriched with original
membership, keenly aware of the advantages and disadvantages of globalization with its on-line experience, and endowed with a
vision of the future, the Philippines now straddles the crossroads of an international strategy for economic prosperity and stability in
the new millennium. Let the people, through their duly authorized elected officers, make their free choice.
WHEREFORE, the petition is DISMISSED for lack of merit.
SO ORDERED.
x--------------------------------------------------------------------------------------------------------------------------------------------------------------------------x
G.R. No. L-533 August 20, 1946
RAMON RUFFY, ET AL., petitioners, vs. THE CHIEF OF STAFF, PHILIPPINE ARMY, ET AL., respondents.
Placido C. Ramos for petitioners.
Lt. Col. Fred Ruiz Castro and Capt. Ramon V. Diaz, JAGS, PA., for respondents.
TUASON, J.:
This was a petition for prohibition, praying that the respondents, the Chief of Staff and the General Court Martial of the Philippine
Army, be commanded to desist from further proceedings in the trial of petitioners before that body. Preliminary injunction having
been denied by us and the General Court Martial having gone ahead with the trial, which eventually resulted in the acquittal of one
of the defendants, Ramon Ruffy, the dismissal of the case as to another, Victoriano Dinglasan, and the conviction of Jose L. Garcia,
Prudente M. Francisco, Dominador Adeva and Andres Fortus, the last-named four petitioners now seek in their memorandum to
convert the petition into one for certiorari, with the prayer that the records of the proceedings before the General Court Martial be
ordered certified to this court for review.
The ground of the petition was that the petitioners were not subject to military law at the time the offense for which they had been
placed on trial was committed. In their memorandum they have raised an additional question of law — that the 93d Article of War is
unconstitutional.
An outline of the petitioner's previous connection with the Philippine Army, the Philippine Constabulary, and/or with guerrilla
organizations will presently be made. This outline is based on allegations in the petition and the answer, and on exhibits attached
thereto and to the parties' memoranda, exhibits which were offered in the course of the oral argument and admitted without
objection. The said exhibits are public documents certified by the officials who had them in custody in their official capacity. They
are presumed to be authentic, as we have no doubt they are.
It appears that at the outbreak of war on December 8, 1941, Ramon Ruffy was the Provincial Commander, Prudente M. Francisco, a
junior officer, and Andres Fortus, a corporal, all of the Philippine Constabulary garrison stationed in Mindoro. When, on February 27,
1942, the Japanese forces landed in Mindoro, Major Ruffy retreated to the mountains instead of surrendering to the enemy,
disbanded his company, and organized and led a guerrilla outfit known as Bolo Combat team of Bolo Area. Lieutenant Francisco,
Corporal Fortus and Jose L. Garcia, the last then a civilian joined Major Ruffy's organization towards the latter part of 1942, while
Dominador Adeva and Victoriano Dinglasan, then likewise civilians, became its members some time in 1943..
Meanwhile, Brigadier General Macario Peralta, Jr., then a lieutenant colonel of the Philippine Army, also took to the hills of Panay
and led the operation of the 6th Military District, one of the districts into which the Philippine Army had been divided before the
war. About November, 1942, Colonel Peralta succeeded in contacting the General Headquarters of General MacArthur in Australia
as the result of which on February 13, 1943, the 6th Military District was recognized by the Headquarters of the Southwest Pacific
Area as a military unit and part of its command.
Even before General MacArthur's recognition of the 6th Military District Colonel Peralta had extended its sphere of operation to
comprise Mindoro and Marinduque, and had, on January 2, 1943, named Major Ruffy as Acting Commander for those two provinces
and Commanding Officer of the 3rd Battalion, 66 Infantry 61st Division, Philippine Corps. After the recognition, 2d Lieut. Prudente
M. Francisco, by virtue of Special Orders No. 99, dated November 2, 1943, and signed by Enrique L. Jurado, Major, OSE,
Commanding, was assigned as S-3 in the Bolo Area. Major, later Lieut. Col., Jurado, it should be noted, had been dispatched by the
6th Military District to Mindoro to assume operational control supervision over the Bolo Area unit and to make and direct the
necessary report to the Headquarters, 6th Military District, in Panay. On April 26, 1944, by General Orders No. 40 of the 6th Military
District, 2d Lieutenant Francisco was promoted to the rank of 1st Lieutenant (Brevet), effective April 15, 1944, subject to approval by
the President of the Philippines, and was re-assigned to the Bolo Area. As to Andres Fortus he was assigned to the same Bolo Area as
probationary 3d lieutenant for two-month probationary training, by the Headquarters of the 6th Military District, as per Special
Orders No. 70, dated May 15, 1944.
According to a memorandum of the Chief of Staff, 6th Military District, dated January 1943, and signed by L.R. Relunia, Lieut. Col.,
CE, Chief of Staff, Jose L. Garcia and Dominador Adeva were appointed 3d lieutenants, infantry as of December 31, 1942. Garcia later
was promoted to the rank of captain, effective March 15, 1943, as per Special Orders No. 82, issued in the field, 6th Military District,
and dated August 28, 1943. On May 24, 1943, Jose L. Garcia took his oath before Captain Esteban P. Beloncio, then Acting
Commanding Officer, 3d Battalion, 66th Infantry Regiment, 61st Division, 6th Military District.
As has been said, the 6th Military District sent Lieut. Col. Enrique L. Jurado to be Commanding Officer of the Bolo Combat Team in
Mindoro and to undertake other missions of Military character. Pursuant to instructions, Colonel Jurado on November 2, 1943,
assigned Major Ruffy as Commanding Officer of the Bolo Area with 3d Lieut. Dominador Adeva and 2d Lieut. Prudente M. Francisco
as members of his staff and Victoriano Dinglasan as Finance Officer, as per Special Orders No. 99 dated November 2, 1943. In a
memorandum of Colonel Jurado for Major Ruffy bearing date 25 June, 1944, it was stated that Captain Garcia had been given P5,000
for palay and Lieut. Francisco P9,000, P5,000 for palay and P4,000 for salary of the personnel B. Company.
A change in the command of the Bolo Area was effected by Colonel Jurado on June 8, 1944: Major Ruffy was relieved of his
assignment as Commanding Officer, Bolo Battalion, and Capt. Esteban P. Beloncio was put in Ruffy's place. On October 19, 1944,
Lieut. Col. Jurado was slain allegedly by the petitioners. After the commission of this crime, the petitioners, it is alleged, seceded
from the 6th Military District. It was this murder which gave rise to petitioner's trial, the legality of which is now being contested.
On July 26, 1941, the President of the Untied States issued a military order the pertinent paragraph of which stated: ". . . as
Commander in Chief of the Army and Navy of the United States, I hereby call and order into the service of the armed forces of the
United States Army, for the period of the existing emergency, and place under the command of the general officer, United States
Army, to be designated by the Secretary of War, from time to time, all of the organized military forces of the Government of the
Commonwealth." Following the issuance of President Roosevelt's order General Douglas MacArthur was appointed Commanding
General of the United States Armed Forces in the Far East.
It is contended, in behalf of Captain Francisco and Lieutenant Fortus, that "by the enemy occupation of the Philippines, the National
Defense Act and all laws and regulations creating and governing the existence of the Philippine Army including the Articles of War,
were suspended and in abeyance during such belligerent occupation."
The paragraph quoted in the petitioner's memorandum from Winthrop's Military Law and Precedents and the subsequent
paragraph which has been omitted furnish a complete answer to petitioner's contention of the Philippines by Japanese forces, the
officers and men of the Philippine Army did not cease to be fully in the service, though in a measure,' only in a measure, they were
not subject to the military jurisdiction, if they were not active duty. In the latter case, like officers and soldiers on leave of absence or
held as prisoners of war, they could not be held guilty of a breach of the discipline of the command or of a neglect of duty, or
disobedience of orders, or mutiny, or subject to a military trial therefor; but for an act unbecoming an officer and a gentleman, or an
act which constitutes an offense of the class specified in the 95th Article of War, they may in general be legally held subject to
military jurisdiction and trial. "So a prisoner of war, though not subject, while held by the enemy, to the discipline of his own army,
would, when exchanged of paroled, be not exempt from liability for such offenses as criminal acts or injuriuos conduct committed
during his captivity against other officers or soldiers in the same status." (Winthrop's Military Law and Precedents, 2d Edition, pp. 91,
92.)
The rule invoked by counsel, namely, that laws of political nature or affecting political relations are considered superseded or in
abeyance during the military occupation, is intended for the governing of the civil inhabitants of the occupied territory. It is not
intended for and does not bind the enemies in arms. This is self-evident from the very nature of things. The paradox of a contrary
ruling should readily manifest itself. Under the petitioner's theory the forces of resistance operating in an occupied territory would
have to abide by the outlawing of their own existence. They would be stripped of the very life-blood of an army, the right and the
ability to maintain order and discipline within the organization and to try the men guilty of breach thereof.
The surrender by General Wainright of the Fil-American Forces does not profit the petitioner's who were former members of the
Philippine Constabulary any more than does the rule of war or international law they cite. The fall of Bataan and Corregidor did not
end the war. It did not, legally or otherwise, keep the United States and the Commonwealth of the Philippines from organizing a new
army, regular or irregular, out of new men and men in the old service who had refused to surrender or who having surrendered, had
decided to carry on the fight through other diverse means and methods. The fall of Corregidor and Bataan just marked the beginning
of the gigantic preparation for the gigantic drive that was to fight its way to and beyond the Philippines in fulfillment of General
MacArthur's classic promise, "I shall return." The heroic role which the guerrillas played in that preparation and in the subsequent
liberation of the Philippines is now history.
Independently of their previous connection with the Philippine Army and the Philippine Constabulary, Captain Francisco and
Lieutenant Fortus as well as Major Garcia and Lieutenant Adeva were subject to military jurisdiction.
The 2d Article of War defines and enumerates the persons subject to military law as follows:
Art. 2. Persons Subject to Military Law. — The following persons are subject to these articles and shall be understood as included in
the term "any person subject to military law" or "persons subject to military law," whenever used in these articles:
(a) All officers, members of the Nurse Corps and soldiers belonging to the Regular Force of the Philippine Army; all reservists, from
the dates of their call to active duty and while on such active duty; all trainees undergoing military instructions; and all other persons
lawfully called, drafted, or order to obey the same;
(b) Cadets, flying cadets, and probationary third lieutenants;
(c) All retainers to the camp and all persons accompanying or serving with the Army of the Philippines in the field in time of war or
when martial law is declared though not otherwise subject to these articles;
(d) All persons under sentences adjudged by courts-martial.
It is our opinion that the petitioners come within the general application of the clause in sub-paragraph (a); "and all other persons
lawfully called, drafted, or ordered into, or to duty for training in, the said service, from the dates they are required by the terms of
the call, draft, or order to obey the same." By their acceptance of appointments as officers in the Bolo Area from the General
Headquarters of the 6th Military District, they became members of the Philippine Army amendable to the Articles of War. The Bolo
Area, as has been seen, was a contigent of the 6th Military District which, as has also been pointed out, had been recognized by and
placed under the operational control of the United States Army in the Southwest Pacific. The Bolo Area received supplies and funds
for the salaries of its officers and men from the Southwest Pacific Command. As officers in the Bolo Area and the 6th Military
District, the petitioners operated under the orders of duly established and duly appointed commanders of the United States Army.
The attitude of the enemy toward underground movements did not affect the military status of guerrillas who had been called into
the service of the Philippine Army. If the invaders refused to look upon guerrillas, without distinctions, as legitimate troops, that did
not stop the guerillas who had been inducted into the service of the Philippine Army from being component parts thereof, bound to
obey military status of guerrillas was to be judged not by the concept of the army of the country for which they fought.
The constitutionality of the 93d Article of War is assailed. This article ordains "that any person subject to military law who commits
murder in time of was shall suffer death or imprisonment for life, as the court martial may direct." It is argued that since "no review
is provided by that law to be made by the Supreme Court, irrespective of whether the punishment is for life imprisonment or death",
it violates Article VIII, section 2, paragraph 4, of the Constitution of the Philippines which provides that "the National Assembly may
not deprive the Supreme Court of its original jurisdiction over all criminal cases in which the penalty imposed is death or life
imprisonment."
We think the petitioners are in error. This error arose from failure to perceive the nature of courts martial and the sources of the
authority for their creation.
Courts martial are agencies of executive character, and one of the authorities "for the ordering of courts martial has been held to be
attached to the constitutional functions of the President as Commander in Chief, independently of legislation." (Winthrop's Military
Law and Precedents, 2d Edition, p. 49.) Unlike courts of law, they are not a portion of the judiciary. "The Supreme Court of the
United States referring to the provisions of the Constitution authorizing Congress to provide for the government of the army,
excepting military offenses from the civil jurisdiction, and making the President Commander in Chief, observes as follows: "These
provisions show that Congress has the power to provide for the trial and punishment of military and naval offenses in the manner
then and now practiced by civilized nations, and that the power to do so is given without any connection between it and the 3d
Article of the United States; indeed that the two powers are entirely independent of each other."
"Not belonging to the judicial branch of the government, it follows that courts-martial must pertain to the executive department;
and they are in fact simply instrumentalities of the executive power, provided by Congress for the President as Commander in Chief,
to aid him in properly commanding the army and navy and enforcing discipline therein, and utilized under his orders or those of his
authorized military representatives." (Winthrop's Military Law and Precedents, 2d Edition, p. 49.) Of equal interest Clode, 2 M. F.,
361, says of these courts in the British law: "It must never be lost sight of that the only legitimate object of military tribunals is to aid
the Crown to maintain the discipline and government of the Army." (Footnote No. 24, p. 49, Winthrop's Military Law and
Precedents, 2d Edition.)
Our conclusion, therefore, is that the petition has no merit and that it should be dismissed with costs. It is so ordered.
Moran, C.J., Paras, Feria, Pablo, Hilado, Bengzon, Briones and Padilla, JJ., concur.
Separate Opinions
PERFECTO, J., dissenting:
We agree with the rule that laws of political nature or affecting political relations are considered in abeyance during enemy military
occupation, although we maintain that the rule must be restricted to laws which are exclusively political in nature. We agree with
the theory that the rule is not intended for and does not bind the enemies in arms, but we do not agree with the theory that the rule
is intended for the civil inhabitants of the occupied territory without exception. We are of opinion that the rule does not apply to
civil government of the occupied territory. Enemy occupation does not relieve them from their sworn official duties. Government
officers wield powers and enjoy privileges denied to private citizens. The wielding of powers and enjoyment of privileges impose
corresponding responsibilities, and even dangers that must be faced during emergency.
The petitioners assailed the constitutionally of the 93rd Article of War, providing that "any person subject to military law who
commits murder in time of war shall suffer death or imprisonment for life, as the court-martial may direct," because no review is
provided by said law to be made by the Supreme Court, irrespective of whether the punishment is for life imprisonment or death,
such omission being a violation of section 2 (4) , Article VIII, of the Constitution of the Philippines.
Petitioners are mistaken. The silence of the law as to the power of the Supreme Court to review the decisions and proceedings of
courts-martial, especially when the penalty imposed is death or life imprisonment, should not be understood as negating such
power, much more when it is recognized and guaranteed by specific provisions of the fundamental law. At any rate, any doubt in
interpreting the silence of the law must be resolved in favor of a construction that will make the law constitutional.
Furthermore, it may not be amiss to recall the fact that the National Assembly, in approving the Articles of War (Commonwealth Act
No. 408), had never intended to deny or diminish the power of the Supreme Court to review, revise, reverse or modify final
judgments and decrees of courts martial created and organized under the Articles of War. On the contrary, it was clearly understood
that the decrees and the decisions of said courts-martial are subject to review by the Supreme Court. The last Committee report on
the Articles of War was rendered to the National Assembly by its Committee on Third Reading, commonly known as the "Little
Senate," which submitted the bill printed in final form. As chairman of the committee and in behalf of the same, we submitted the
report recommending the approval of the bill on third reading with the express statement and understanding that it would not
deprive the Supreme Court of its constitutional revisionary power on final judgments and decrees of courts-martial proposed to be
created, which were and are to be considered as part of the judicial system, being included in the denomination of inferior courts
mentioned in section 1, Article VIII, of the constitution. With the said statement and understanding, the National Assembly, without
any dissenting vote, approved the Articles of War as recommended by the Committee on third Reading.
Consequently, petitioners' contention is untenable, the premise upon which they assailed the constitutionality of the 93rd Article of
War being groundless in view of the actuation of the national Assembly.
The majority appear to concur in petitioners' premise that, by the silence of the Articles of War, the Supreme Court is deprived of its
constitutional power to review final decisions of courts-martial. The majority even go as far as to justify the constitutionality of such
deprivation on the theory that courts martial belong, not to the judicial branch of the government, but to the executive department,
citing as authority therefor Winthrop's Military Law and Precedents. The majority are in error.
In our opinion in Yamashita vs. Styer (L-129, 42 Off. Gaz., 664) and in Homma vs. Styer (L-244), we have shown that this Supreme
Court enjoys the power to revise the actuations and decisions of military commissions, especially if they act without jurisdiction or
violate the law, military commissions being included within the denomination of inferior courts under the provisions of our
Constitution. Courts-martial are, likely military commissions, inferior courts. The fact that they are military tribunals does not change
their essence as veritable tribunals or courts of justice, as agencies of the government in the administration of justice. Their
functions are essentially judicial. Except in cases where judicial functions are specifically entrusted by the Constitution to other
agencies — such as impeachment to Congress, legislative electoral contests to the Electoral Tribunals — all judicial functions are
vested in the Supreme Court and in such inferior courts as may be established by law. Courts-martial are inferior courts established
by law.
The majority's theory is based on an authority which has no bearing or application under the Constitution of the Philippines.
Winthrop's Military Law and Precedents has in mind the Constitution of the United States of America, the provisions of which
regarding the judicial department are essentially different from those contained in our own Constitution.
Article III of the Constitution of the United States of America is as follows:
SECTION 1. The Judicial Power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress
may from time to time ordain and establish. The Judges, both of the Supreme Court and Inferior Courts, shall hold their offices
during good behavior, and shall at stated times, received for their services, a compensation, which shall not be diminished during
their continuance in office.
SEC. 2. The Judicial Power shall extend to all cases, in Law and Equity, arising under this Constitution, the Laws of the United States,
and Treaties made, or which shall be made, under their authority; — to all cases affecting Ambassadors, other public Ministers and
Consuls; — to all cases of admirality and maritime jurisdiction; — to controversies to which the United States shall be a party; — to
controversies between two or more States; — between a States and citizens of another State; — between citizens of another State;
— between citizens of different States, — between citizens of the same State claiming lands under grants of different States, and
between a State, or the citizens thereof, and foreign States, citizens or subjects.
In all cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a party, the Supreme
Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction,
both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.
The trial of all crimes, except in cases of impeachment, shall be jury; and such trial shall be held in the State where the said crimes
shall have been committed; but when not committed within any State, the trial shall be at such place or places as the Congress may
by law have directed.
SEC. 3. Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them
aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on
confession in open court.
The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or
forfeiture except during the life of the person attached.
A comparison of the above provision with that of the Constitution of the Philippines will readily show that the former does not have
the negative provision contained in the latter to the effect that our Supreme Court may not be deprived of certain specific judicial
functions.
Section 2 of Articles VIII of our Constitution is as follows:
SEC. 2. The Congress shall have the power to define, prescribe, and apportion the jurisdiction of the various courts, but may not
deprive the Supreme Court of its original jurisdiction over cases affecting ambassadors, other public ministers, and consuls, nor of its
jurisdiction to review, revise, reverse, modify of affirm on appeal, certiorari, or writ of error, as the law or the rules of court may
provide, final judgments and decrees of inferior courts in —
(1) All cases in which the constitutionality or validity of any treaty, law, ordinance, or executive order or regulations is in question.
(2) All cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed in relation thereto.
(3) All cases in which the jurisdiction of any trial courts is in issue.
(4) All criminal cases in which the penalty imposed is death or life imprisonment.
(5) All cases in which an error or question of law is involved.
It is our considered opinion that the theory maintained in Winthrop's Military Law and Precedents and in the decisions of the
Supreme Court of the United States cited therein to the effect that the trial and punishment of military and naval offenses by courts-
martial are executive functions because the only legitimate object of military tribunals "is to aid the Crown to maintain the discipline
and government of the Army," as applied in the Philippine, is basically wrong, being rooted in the English monarchial ideology.
Military tribunals are tribunals whose functions are judicial in character and in nature. No amount of logodaedaly may change the
nature of such functions. The trial and punishment of offenses, whether civil or military naval or aerial, since time immemorial, have
always been considered as judicial functions. The fact that such trial and punishment are entrusted to "tribunals or courts-martial"
shows the nuclear idea of the nature of the function. Tribunals and courts are the agencies employed by government to administer
justice.
The very fact that in this case the Supreme Court has given due course to the petition, required respondents to answer, set the case
for hearing and, in fact, heard it, instead of ordering the outright dismissal of the petition as soon as it was filed, thus following the
same procedure in Reyes vs. Crisologo, (L-54, 41 Off. Gaz., 1096) and in Yamashita vs. Styer (supra), is a conclusive evidence of the
fact of that this Supreme Court has the jurisdiction and power to review the proceedings and decision of military tribunals, such as
courts-martials, military commissions, and other similar bodies exercising judicial functions limited to military personnel.
It appearing that petitioners impugning the jurisdiction of the court-martial which has tried and convicted them, we are of opinion
that the petition must be granted in the sense that the records of the court-martial in question should, be elevated to the Supreme
Court for revision, so that we may decide the question on the court-martial's jurisdiction and give petitioners the justice they are
claiming for.
X---------------------------------------------------------------------------------------------------------------------------------------------------------------------------x
G.R. No. 138570 October 10, 2000
BAYAN (Bagong Alyansang Makabayan), a JUNK VFA MOVEMENT, BISHOP TOMAS MILLAMENA (Iglesia Filipina Independiente),
BISHOP ELMER BOLOCAN (United Church of Christ of the Phil.), DR. REYNALDO LEGASCA, MD, KILUSANG MAMBUBUKID NG
PILIPINAS, KILUSANG MAYO UNO, GABRIELA, PROLABOR, and the PUBLIC INTEREST LAW CENTER, petitioners,
vs.
EXECUTIVE SECRETARY RONALDO ZAMORA, FOREIGN AFFAIRS SECRETARY DOMINGO SIAZON, DEFENSE SECRETARY ORLANDO
MERCADO, BRIG. GEN. ALEXANDER AGUIRRE, SENATE PRESIDENT MARCELO FERNAN, SENATOR FRANKLIN DRILON, SENATOR
BLAS OPLE, SENATOR RODOLFO BIAZON, and SENATOR FRANCISCO TATAD, respondents.
x-----------------------x
G.R. No. 138572 October 10, 2000
PHILIPPINE CONSTITUTION ASSOCIATION, INC.(PHILCONSA), EXEQUIEL B. GARCIA, AMADOGAT INCIONG, CAMILO L. SABIO, AND
RAMON A. GONZALES, petitioners, vs.
HON. RONALDO B. ZAMORA, as Executive Secretary, HON. ORLANDO MERCADO, as Secretary of National Defense, and HON.
DOMINGO L. SIAZON, JR., as Secretary of Foreign Affairs, respondents.
x-----------------------x
G.R. No. 138587 October 10, 2000
TEOFISTO T. GUINGONA, JR., RAUL S. ROCO, and SERGIO R. OSMEÑA III, petitioners, vs.
JOSEPH E. ESTRADA, RONALDO B. ZAMORA, DOMINGO L. SIAZON, JR., ORLANDO B. MERCADO, MARCELO B. FERNAN, FRANKLIN
M. DRILON, BLAS F. OPLE and RODOLFO G. BIAZON, respondents.
x-----------------------x
G.R. No. 138680 October 10, 2000
INTEGRATED BAR OF THE PHILIPPINES, Represented by its National President, Jose Aguila Grapilon, petitioners, vs.
JOSEPH EJERCITO ESTRADA, in his capacity as President, Republic of the Philippines, and HON. DOMINGO SIAZON, in his capacity
as Secretary of Foreign Affairs, respondents.
x-----------------------x
G.R. No. 138698 October 10, 2000
JOVITO R. SALONGA, WIGBERTO TAÑADA, ZENAIDA QUEZON-AVENCEÑA, ROLANDO SIMBULAN, PABLITO V. SANIDAD, MA.
SOCORRO I. DIOKNO, AGAPITO A. AQUINO, JOKER P. ARROYO, FRANCISCO C. RIVERA JR., RENE A.V. SAGUISAG, KILOSBAYAN,
MOVEMENT OF ATTORNEYS FOR BROTHERHOOD, INTEGRITY AND NATIONALISM, INC. (MABINI), petitioners, vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF FOREIGN AFFAIRS, THE SECRETARY OF NATIONAL DEFENSE, SENATE PRESIDENT
MARCELO B. FERNAN, SENATOR BLAS F. OPLE, SENATOR RODOLFO G. BIAZON, AND ALL OTHER PERSONS ACTING THEIR
CONTROL, SUPERVISION, DIRECTION, AND INSTRUCTION IN RELATION TO THE VISITING FORCES AGREEMENT (VFA), respondents.
DECISION
BUENA, J.:
Confronting the Court for resolution in the instant consolidated petitions for certiorari and prohibition are issues relating to, and
borne by, an agreement forged in the turn of the last century between the Republic of the Philippines and the United States of
America -the Visiting Forces Agreement.
The antecedents unfold.
On March 14, 1947, the Philippines and the United States of America forged a Military Bases Agreement which formalized, among
others, the use of installations in the Philippine territory by United States military personnel. To further strengthen their defense and
security relationship, the Philippines and the United States entered into a Mutual Defense Treaty on August 30, 1951. Under the
treaty, the parties agreed to respond to any external armed attack on their territory, armed forces, public vessels, and aircraft.
In view of the impending expiration of the RP-US Military Bases Agreement in 1991, the Philippines and the United States negotiated
for a possible extension of the military bases agreement. On September 16, 1991, the Philippine Senate rejected the proposed RP-US
Treaty of Friendship, Cooperation and Security which, in effect, would have extended the presence of US military bases in the
Philippines.2 With the expiration of the RP-US Military Bases Agreement, the periodic military exercises conducted between the two
countries were held in abeyance. Notwithstanding, the defense and security relationship between the Philippines and the United
States of America continued pursuant to the Mutual Defense Treaty.
On July 18, 1997, the United States panel, headed by US Defense Deputy Assistant Secretary for Asia Pacific Kurt Campbell, met with
the Philippine panel, headed by Foreign Affairs Undersecretary Rodolfo Severino Jr., to exchange notes on "the complementing
strategic interests of the United States and the Philippines in the Asia-Pacific region." Both sides discussed, among other things, the
possible elements of the Visiting Forces Agreement (VFA for brevity). Negotiations by both panels on the VFA led to a consolidated
draft text, which in turn resulted to a final series of conferences and negotiations3 that culminated in Manila on January 12 and 13,
1998. Thereafter, then President Fidel V. Ramos approved the VFA, which was respectively signed by public respondent Secretary
Siazon and Unites States Ambassador Thomas Hubbard on February 10, 1998.
On October 5, 1998, President Joseph E. Estrada, through respondent Secretary of Foreign Affairs, ratified the VFA.
On October 6, 1998, the President, acting through respondent Executive Secretary Ronaldo Zamora, officially transmitted to the
Senate of the Philippines, the Instrument of Ratification, the letter of the President6 and the VFA, for concurrence pursuant to
Section 21, Article VII of the 1987 Constitution. The Senate, in turn, referred the VFA to its Committee on Foreign Relations, chaired
by Senator Blas F. Ople, and its Committee on National Defense and Security, chaired by Senator Rodolfo G. Biazon, for their joint
consideration and recommendation. Thereafter, joint public hearings were held by the two Committees.
On May 3, 1999, the Committees submitted Proposed Senate Resolution No. 443 recommending the concurrence of the Senate to
the VFA and the creation of a Legislative Oversight Committee to oversee its implementation. Debates then ensued.
On May 27, 1999, Proposed Senate Resolution No. 443 was approved by the Senate, by a two-thirds (2/3) vote of its members.
Senate Resolution No. 443 was then re-numbered as Senate Resolution No. 18.
On June 1, 1999, the VFA officially entered into force after an Exchange of Notes between respondent Secretary Siazon and United
States Ambassador Hubbard.
The VFA, which consists of a Preamble and nine (9) Articles, provides for the mechanism for regulating the circumstances and
conditions under which US Armed Forces and defense personnel may be present in the Philippines, and is quoted in its full text,
hereunder:
"Article I
Definitions
"As used in this Agreement, ‘United States personnel’ means United States military and civilian personnel temporarily in the
Philippines in connection with activities approved by the Philippine Government.
"Within this definition:
"1. The term ‘military personnel’ refers to military members of the United States Army, Navy, Marine Corps, Air Force, and Coast
Guard.
"2. The term ‘civilian personnel’ refers to individuals who are neither nationals of, nor ordinary residents in the Philippines and who
are employed by the United States armed forces or who are accompanying the United States armed forces, such as employees of
the American Red Cross and the United Services Organization.
"Article II
Respect for Law
"It is the duty of the United States personnel to respect the laws of the Republic of the Philippines and to abstain from any activity
inconsistent with the spirit of this agreement, and, in particular, from any political activity in the Philippines. The Government of the
United States shall take all measures within its authority to ensure that this is done.
"Article III
Entry and Departure
"1. The Government of the Philippines shall facilitate the admission of United States personnel and their departure from the
Philippines in connection with activities covered by this agreement.
"2. United States military personnel shall be exempt from passport and visa regulations upon entering and departing the Philippines.
"3. The following documents only, which shall be presented on demand, shall be required in respect of United States military
personnel who enter the Philippines:
"(a) personal identity card issued by the appropriate United States authority showing full name, date of birth, rank or grade and
service number (if any), branch of service and photograph;
"(b) individual or collective document issued by the appropriate United States authority, authorizing the travel or visit and
identifying the individual or group as United States military personnel; and
"(c) the commanding officer of a military aircraft or vessel shall present a declaration of health, and when required by the cognizant
representative of the Government of the Philippines, shall conduct a quarantine inspection and will certify that the aircraft or vessel
is free from quarantinable diseases. Any quarantine inspection of United States aircraft or United States vessels or cargoes thereon
shall be conducted by the United States commanding officer in accordance with the international health regulations as promulgated
by the World Health Organization, and mutually agreed procedures.
"4. United States civilian personnel shall be exempt from visa requirements but shall present, upon demand, valid passports upon
entry and departure of the Philippines.
"5. If the Government of the Philippines has requested the removal of any United States personnel from its territory, the United
States authorities shall be responsible for receiving the person concerned within its own territory or otherwise disposing of said
person outside of the Philippines.
"Article IV
Driving and Vehicle Registration
"1. Philippine authorities shall accept as valid, without test or fee, a driving permit or license issued by the appropriate United States
authority to United States personnel for the operation of military or official vehicles.
"2. Vehicles owned by the Government of the United States need not be registered, but shall have appropriate markings.
"Article V
Criminal Jurisdiction
"1. Subject to the provisions of this article:
(a) Philippine authorities shall have jurisdiction over United States personnel with respect to offenses committed within the
Philippines and punishable under the law of the Philippines.
(b) United States military authorities shall have the right to exercise within the Philippines all criminal and disciplinary jurisdiction
conferred on them by the military law of the United States over United States personnel in the Philippines.
"2. (a) Philippine authorities exercise exclusive jurisdiction over United States personnel with respect to offenses, including offenses
relating to the security of the Philippines, punishable under the laws of the Philippines, but not under the laws of the United States.
(b) United States authorities exercise exclusive jurisdiction over United States personnel with respect to offenses, including offenses
relating to the security of the United States, punishable under the laws of the United States, but not under the laws of the
Philippines.
(c) For the purposes of this paragraph and paragraph 3 of this article, an offense relating to security means:
(1) treason;
(2) sabotage, espionage or violation of any law relating to national defense.
"3. In cases where the right to exercise jurisdiction is concurrent, the following rules shall apply:
(a) Philippine authorities shall have the primary right to exercise jurisdiction over all offenses committed by United States personnel,
except in cases provided for in paragraphs 1(b), 2 (b), and 3 (b) of this Article.
(b) United States military authorities shall have the primary right to exercise jurisdiction over United States personnel subject to the
military law of the United States in relation to.
(1) offenses solely against the property or security of the United States or offenses solely against the property or person of United
States personnel; and
(2) offenses arising out of any act or omission done in performance of official duty.
(c) The authorities of either government may request the authorities of the other government to waive their primary right to
exercise jurisdiction in a particular case.
(d) Recognizing the responsibility of the United States military authorities to maintain good order and discipline among their forces,
Philippine authorities will, upon request by the United States, waive their primary right to exercise jurisdiction except in cases of
particular importance to the Philippines. If the Government of the Philippines determines that the case is of particular importance, it
shall communicate such determination to the United States authorities within twenty (20) days after the Philippine authorities
receive the United States request.
(e) When the United States military commander determines that an offense charged by authorities of the Philippines against United
states personnel arises out of an act or omission done in the performance of official duty, the commander will issue a certificate
setting forth such determination. This certificate will be transmitted to the appropriate authorities of the Philippines and will
constitute sufficient proof of performance of official duty for the purposes of paragraph 3(b)(2) of this Article. In those cases where
the Government of the Philippines believes the circumstances of the case require a review of the duty certificate, United States
military authorities and Philippine authorities shall consult immediately. Philippine authorities at the highest levels may also present
any information bearing on its validity. United States military authorities shall take full account of the Philippine position. Where
appropriate, United States military authorities will take disciplinary or other action against offenders in official duty cases, and notify
the Government of the Philippines of the actions taken.
(f) If the government having the primary right does not exercise jurisdiction, it shall notify the authorities of the other government as
soon as possible.
(g) The authorities of the Philippines and the United States shall notify each other of the disposition of all cases in which both the
authorities of the Philippines and the United States have the right to exercise jurisdiction.
"4. Within the scope of their legal competence, the authorities of the Philippines and United States shall assist each other in the
arrest of United States personnel in the Philippines and in handling them over to authorities who are to exercise jurisdiction in
accordance with the provisions of this article.
"5. United States military authorities shall promptly notify Philippine authorities of the arrest or detention of United States
personnel who are subject of Philippine primary or exclusive jurisdiction. Philippine authorities shall promptly notify United States
military authorities of the arrest or detention of any United States personnel.
"6. The custody of any United States personnel over whom the Philippines is to exercise jurisdiction shall immediately reside with
United States military authorities, if they so request, from the commission of the offense until completion of all judicial proceedings.
United States military authorities shall, upon formal notification by the Philippine authorities and without delay, make such
personnel available to those authorities in time for any investigative or judicial proceedings relating to the offense with which the
person has been charged in extraordinary cases, the Philippine Government shall present its position to the United States
Government regarding custody, which the United States Government shall take into full account. In the event Philippine judicial
proceedings are not completed within one year, the United States shall be relieved of any obligations under this paragraph. The one-
year period will not include the time necessary to appeal. Also, the one-year period will not include any time during which scheduled
trial procedures are delayed because United States authorities, after timely notification by Philippine authorities to arrange for the
presence of the accused, fail to do so.
"7. Within the scope of their legal authority, United States and Philippine authorities shall assist each other in the carrying out of all
necessary investigation into offenses and shall cooperate in providing for the attendance of witnesses and in the collection and
production of evidence, including seizure and, in proper cases, the delivery of objects connected with an offense.
"8. When United States personnel have been tried in accordance with the provisions of this Article and have been acquitted or have
been convicted and are serving, or have served their sentence, or have had their sentence remitted or suspended, or have been
pardoned, they may not be tried again for the same offense in the Philippines. Nothing in this paragraph, however, shall prevent
United States military authorities from trying United States personnel for any violation of rules of discipline arising from the act or
omission which constituted an offense for which they were tried by Philippine authorities.
"9. When United States personnel are detained, taken into custody, or prosecuted by Philippine authorities, they shall be accorded
all procedural safeguards established by the law of the Philippines. At the minimum, United States personnel shall be entitled:
(a) To a prompt and speedy trial;
(b) To be informed in advance of trial of the specific charge or charges made against them and to have reasonable time to prepare a
defense;
(c) To be confronted with witnesses against them and to cross examine such witnesses;
(d) To present evidence in their defense and to have compulsory process for obtaining witnesses;
(e) To have free and assisted legal representation of their own choice on the same basis as nationals of the Philippines;
(f) To have the service of a competent interpreter; and
(g) To communicate promptly with and to be visited regularly by United States authorities, and to have such authorities present at
all judicial proceedings. These proceedings shall be public unless the court, in accordance with Philippine laws, excludes persons who
have no role in the proceedings.
"10. The confinement or detention by Philippine authorities of United States personnel shall be carried out in facilities agreed on by
appropriate Philippine and United States authorities. United States Personnel serving sentences in the Philippines shall have the
right to visits and material assistance.
"11. United States personnel shall be subject to trial only in Philippine courts of ordinary jurisdiction, and shall not be subject to the
jurisdiction of Philippine military or religious courts.
"Article VI
Claims
"1. Except for contractual arrangements, including United States foreign military sales letters of offer and acceptance and leases of
military equipment, both governments waive any and all claims against each other for damage, loss or destruction to property of
each other’s armed forces or for death or injury to their military and civilian personnel arising from activities to which this
agreement applies.
"2. For claims against the United States, other than contractual claims and those to which paragraph 1 applies, the United States
Government, in accordance with United States law regarding foreign claims, will pay just and reasonable compensation in
settlement of meritorious claims for damage, loss, personal injury or death, caused by acts or omissions of United States personnel,
or otherwise incident to the non-combat activities of the United States forces.
"Article VII
Importation and Exportation
"1. United States Government equipment, materials, supplies, and other property imported into or acquired in the Philippines by or
on behalf of the United States armed forces in connection with activities to which this agreement applies, shall be free of all
Philippine duties, taxes and other similar charges. Title to such property shall remain with the United States, which may remove such
property from the Philippines at any time, free from export duties, taxes, and other similar charges. The exemptions provided in this
paragraph shall also extend to any duty, tax, or other similar charges which would otherwise be assessed upon such property after
importation into, or acquisition within, the Philippines. Such property may be removed from the Philippines, or disposed of therein,
provided that disposition of such property in the Philippines to persons or entities not entitled to exemption from applicable taxes
and duties shall be subject to payment of such taxes, and duties and prior approval of the Philippine Government.
"2. Reasonable quantities of personal baggage, personal effects, and other property for the personal use of United States personnel
may be imported into and used in the Philippines free of all duties, taxes and other similar charges during the period of their
temporary stay in the Philippines. Transfers to persons or entities in the Philippines not entitled to import privileges may only be
made upon prior approval of the appropriate Philippine authorities including payment by the recipient of applicable duties and taxes
imposed in accordance with the laws of the Philippines. The exportation of such property and of property acquired in the Philippines
by United States personnel shall be free of all Philippine duties, taxes, and other similar charges.
"Article VIII
Movement of Vessels and Aircraft
"1. Aircraft operated by or for the United States armed forces may enter the Philippines upon approval of the Government of the
Philippines in accordance with procedures stipulated in implementing arrangements.
"2. Vessels operated by or for the United States armed forces may enter the Philippines upon approval of the Government of the
Philippines. The movement of vessels shall be in accordance with international custom and practice governing such vessels, and such
agreed implementing arrangements as necessary.
"3. Vehicles, vessels, and aircraft operated by or for the United States armed forces shall not be subject to the payment of landing or
port fees, navigation or over flight charges, or tolls or other use charges, including light and harbor dues, while in the Philippines.
Aircraft operated by or for the United States armed forces shall observe local air traffic control regulations while in the Philippines.
Vessels owned or operated by the United States solely on United States Government non-commercial service shall not be subject to
compulsory pilotage at Philippine ports.
"Article IX
Duration and Termination
"This agreement shall enter into force on the date on which the parties have notified each other in writing through the diplomatic
channel that they have completed their constitutional requirements for entry into force. This agreement shall remain in force until
the expiration of 180 days from the date on which either party gives the other party notice in writing that it desires to terminate the
agreement."
Via these consolidated petitions for certiorari and prohibition, petitioners - as legislators, non-governmental organizations, citizens
and taxpayers - assail the constitutionality of the VFA and impute to herein respondents grave abuse of discretion in ratifying the
agreement.
We have simplified the issues raised by the petitioners into the following:
I
Do petitioners have legal standing as concerned citizens, taxpayers, or legislators to question the constitutionality of the VFA?
II
Is the VFA governed by the provisions of Section 21, Article VII or of Section 25, Article XVIII of the Constitution?
III
Does the VFA constitute an abdication of Philippine sovereignty?
a. Are Philippine courts deprived of their jurisdiction to hear and try offenses committed by US military personnel?
b. Is the Supreme Court deprived of its jurisdiction over offenses punishable by reclusion perpetua or higher?
IV
Does the VFA violate:
a. the equal protection clause under Section 1, Article III of the Constitution?
b. the Prohibition against nuclear weapons under Article II, Section 8?
c. Section 28 (4), Article VI of the Constitution granting the exemption from taxes and duties for the equipment, materials supplies
and other properties imported into or acquired in the Philippines by, or on behalf, of the US Armed Forces?
LOCUS STANDI
At the outset, respondents challenge petitioner’s standing to sue, on the ground that the latter have not shown any interest in the
case, and that petitioners failed to substantiate that they have sustained, or will sustain direct injury as a result of the operation of
the VFA.12 Petitioners, on the other hand, counter that the validity or invalidity of the VFA is a matter of transcendental importance
which justifies their standing.
A party bringing a suit challenging the constitutionality of a law, act, or statute must show "not only that the law is invalid, but also
that he has sustained or in is in immediate, or imminent danger of sustaining some direct injury as a result of its enforcement, and
not merely that he suffers thereby in some indefinite way." He must show that he has been, or is about to be, denied some right or
privilege to which he is lawfully entitled, or that he is about to be subjected to some burdens or penalties by reason of the statute
complained of.
In the case before us, petitioners failed to show, to the satisfaction of this Court, that they have sustained, or are in danger of
sustaining any direct injury as a result of the enforcement of the VFA. As taxpayers, petitioners have not established that the VFA
involves the exercise by Congress of its taxing or spending powers. On this point, it bears stressing that a taxpayer’s suit refers to a
case where the act complained of directly involves the illegal disbursement of public funds derived from taxation. Thus, in Bugnay
Const. & Development Corp. vs. Laron , we held:
"x x x it is exigent that the taxpayer-plaintiff sufficiently show that he would be benefited or injured by the judgment or entitled to
the avails of the suit as a real party in interest. Before he can invoke the power of judicial review, he must specifically prove that he
has sufficient interest in preventing the illegal expenditure of money raised by taxation and that he will sustain a direct injury as a
result of the enforcement of the questioned statute or contract. It is not sufficient that he has merely a general interest common to
all members of the public."
Clearly, inasmuch as no public funds raised by taxation are involved in this case, and in the absence of any allegation by petitioners
that public funds are being misspent or illegally expended, petitioners, as taxpayers, have no legal standing to assail the legality of
the VFA.
Similarly, Representatives Wigberto Tañada, Agapito Aquino and Joker Arroyo, as petitioners-legislators, do not possess the requisite
locus standi to maintain the present suit. While this Court, in Phil. Constitution Association vs. Hon. Salvador Enriquez,18 sustained
the legal standing of a member of the Senate and the House of Representatives to question the validity of a presidential veto or a
condition imposed on an item in an appropriation bull, we cannot, at this instance, similarly uphold petitioners’ standing as
members of Congress, in the absence of a clear showing of any direct injury to their person or to the institution to which they
belong.
Beyond this, the allegations of impairment of legislative power, such as the delegation of the power of Congress to grant tax
exemptions, are more apparent than real. While it may be true that petitioners pointed to provisions of the VFA which allegedly
impair their legislative powers, petitioners failed however to sufficiently show that they have in fact suffered direct injury.
In the same vein, petitioner Integrated Bar of the Philippines (IBP) is stripped of standing in these cases. As aptly observed by the
Solicitor General, the IBP lacks the legal capacity to bring this suit in the absence of a board resolution from its Board of Governors
authorizing its National President to commence the present action.
Notwithstanding, in view of the paramount importance and the constitutional significance of the issues raised in the petitions, this
Court, in the exercise of its sound discretion, brushes aside the procedural barrier and takes cognizance of the petitions, as we have
done in the early Emergency Powers Cases, where we had occasion to rule:
"x x x ordinary citizens and taxpayers were allowed to question the constitutionality of several executive orders issued by President
Quirino although they were involving only an indirect and general interest shared in common with the public. The Court dismissed
the objection that they were not proper parties and ruled that ‘transcendental importance to the public of these cases demands that
they be settled promptly and definitely, brushing aside, if we must, technicalities of procedure.’ We have since then applied the
exception in many other cases. (Association of Small Landowners in the Philippines, Inc. v. Sec. of Agrarian Reform, 175 SCRA 343)."
(Underscoring Supplied)
This principle was reiterated in the subsequent cases of Gonzales vs. COMELEC,21 Daza vs. Singson,22 and Basco vs. Phil.
Amusement and Gaming Corporation, where we emphatically held:
"Considering however the importance to the public of the case at bar, and in keeping with the Court’s duty, under the 1987
Constitution, to determine whether or not the other branches of the government have kept themselves within the limits of the
Constitution and the laws and that they have not abused the discretion given to them, the Court has brushed aside technicalities of
procedure and has taken cognizance of this petition. x x x"
Again, in the more recent case of Kilosbayan vs. Guingona, Jr.,24 thisCourt ruled that in cases of transcendental importance, the
Court may relax the standing requirements and allow a suit to prosper even where there is no direct injury to the party claiming the
right of judicial review.
Although courts generally avoid having to decide a constitutional question based on the doctrine of separation of powers, which
enjoins upon the departments of the government a becoming respect for each others’ acts, this Court nevertheless resolves to take
cognizance of the instant petitions.
APPLICABLE CONSTITUTIONAL PROVISION
One focal point of inquiry in this controversy is the determination of which provision of the Constitution applies, with regard to the
exercise by the senate of its constitutional power to concur with the VFA. Petitioners argue that Section 25, Article XVIII is applicable
considering that the VFA has for its subject the presence of foreign military troops in the Philippines. Respondents, on the contrary,
maintain that Section 21, Article VII should apply inasmuch as the VFA is not a basing arrangement but an agreement which involves
merely the temporary visits of United States personnel engaged in joint military exercises.
The 1987 Philippine Constitution contains two provisions requiring the concurrence of the Senate on treaties or international
agreements. Section 21, Article VII, which herein respondents invoke, reads:
"No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of
the Senate."
Section 25, Article XVIII, provides:
"After the expiration in 1991 of the Agreement between the Republic of the Philippines and the United States of America concerning
Military Bases, foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred
in by the senate and, when the Congress so requires, ratified by a majority of the votes cast by the people in a national referendum
held for that purpose, and recognized as a treaty by the other contracting State."
Section 21, Article VII deals with treatise or international agreements in general, in which case, the concurrence of at least two-
thirds (2/3) of all the Members of the Senate is required to make the subject treaty, or international agreement, valid and binding on
the part of the Philippines. This provision lays down the general rule on treatise or international agreements and applies to any form
of treaty with a wide variety of subject matter, such as, but not limited to, extradition or tax treatise or those economic in nature. All
treaties or international agreements entered into by the Philippines, regardless of subject matter, coverage, or particular
designation or appellation, requires the concurrence of the Senate to be valid and effective.
In contrast, Section 25, Article XVIII is a special provision that applies to treaties which involve the presence of foreign military bases,
troops or facilities in the Philippines. Under this provision, the concurrence of the Senate is only one of the requisites to render
compliance with the constitutional requirements and to consider the agreement binding on the Philippines. Section 25, Article XVIII
further requires that "foreign military bases, troops, or facilities" may be allowed in the Philippines only by virtue of a treaty duly
concurred in by the Senate, ratified by a majority of the votes cast in a national referendum held for that purpose if so required by
Congress, and recognized as such by the other contracting state.
It is our considered view that both constitutional provisions, far from contradicting each other, actually share some common ground.
These constitutional provisions both embody phrases in the negative and thus, are deemed prohibitory in mandate and character. In
particular, Section 21 opens with the clause "No treaty x x x," and Section 25 contains the phrase "shall not be allowed."
Additionally, in both instances, the concurrence of the Senate is indispensable to render the treaty or international agreement valid
and effective.
To our mind, the fact that the President referred the VFA to the Senate under Section 21, Article VII, and that the Senate extended
its concurrence under the same provision, is immaterial. For in either case, whether under Section 21, Article VII or Section 25,
Article XVIII, the fundamental law is crystalline that the concurrence of the Senate is mandatory to comply with the strict
constitutional requirements.
On the whole, the VFA is an agreement which defines the treatment of United States troops and personnel visiting the Philippines. It
provides for the guidelines to govern such visits of military personnel, and further defines the rights of the United States and the
Philippine government in the matter of criminal jurisdiction, movement of vessel and aircraft, importation and exportation of
equipment, materials and supplies.
Undoubtedly, Section 25, Article XVIII, which specifically deals with treaties involving foreign military bases, troops, or facilities,
should apply in the instant case. To a certain extent and in a limited sense, however, the provisions of section 21, Article VII will find
applicability with regard to the issue and for the sole purpose of determining the number of votes required to obtain the valid
concurrence of the Senate, as will be further discussed hereunder.
It is a finely-imbedded principle in statutory construction that a special provision or law prevails over a general one. Lex specialis
derogat generali. Thus, where there is in the same statute a particular enactment and also a general one which, in its most
comprehensive sense, would include what is embraced in the former, the particular enactment must be operative, and the general
enactment must be taken to affect only such cases within its general language which are not within the provision of the particular
enactment.
In Leveriza vs. Intermediate Appellate Court, we enunciated:
"x x x that another basic principle of statutory construction mandates that general legislation must give way to a special legislation
on the same subject, and generally be so interpreted as to embrace only cases in which the special provisions are not applicable
(Sto. Domingo vs. de los Angeles, 96 SCRA 139), that a specific statute prevails over a general statute (De Jesus vs. People, 120 SCRA
760) and that where two statutes are of equal theoretical application to a particular case, the one designed therefor specially should
prevail (Wil Wilhensen Inc. vs. Baluyot, 83 SCRA 38)."
Moreover, it is specious to argue that Section 25, Article XVIII is inapplicable to mere transient agreements for the reason that there
is no permanent placing of structure for the establishment of a military base. On this score, the Constitution makes no distinction
between "transient’ and "permanent". Certainly, we find nothing in Section 25, Article XVIII that requires foreign troops or facilities
to be stationed or placed permanently in the Philippines.
It is a rudiment in legal hermenuetics that when no distinction is made by law, the Court should not distinguish- Ubi lex non
distinguit nec nos distinguire debemos.
In like manner, we do not subscribe to the argument that Section 25, Article XVIII is not controlling since no foreign military bases,
but merely foreign troops and facilities, are involved in the VFA. Notably, a perusal of said constitutional provision reveals that the
proscription covers "foreign military bases, troops, or facilities." Stated differently, this prohibition is not limited to the entry of
troops and facilities without any foreign bases being established. The clause does not refer to "foreign military bases, troops, or
facilities" collectively but treats them as separate and independent subjects. The use of comma and the disjunctive word "or" clearly
signifies disassociation and independence of one thing from the others included in the enumeration,28 such that, the provision
contemplates three different situations - a military treaty the subject of which could be either (a) foreign bases, (b) foreign troops, or
(c) foreign facilities - any of the three standing alone places it under the coverage of Section 25, Article XVIII.
To this end, the intention of the framers of the Charter, as manifested during the deliberations of the 1986 Constitutional
Commission, is consistent with this interpretation:
"MR. MAAMBONG. I just want to address a question or two to Commissioner Bernas.
This formulation speaks of three things: foreign military bases, troops or facilities. My first question is: If the country does enter into
such kind of a treaty, must it cover the three-bases, troops or facilities-or could the treaty entered into cover only one or two?
FR. BERNAS. Definitely, it can cover only one. Whether it covers only one or it covers three, the requirement will be the same.
MR. MAAMBONG. In other words, the Philippine government can enter into a treaty covering not bases but merely troops?
FR. BERNAS. Yes.
MR. MAAMBONG. I cannot find any reason why the government can enter into a treaty covering only troops.
FR. BERNAS. Why not? Probably if we stretch our imagination a little bit more, we will find some. We just want to cover everything."
(Underscoring Supplied)
Moreover, military bases established within the territory of another state is no longer viable because of the alternatives offered by
new means and weapons of warfare such as nuclear weapons, guided missiles as well as huge sea vessels that can stay afloat in the
sea even for months and years without returning to their home country. These military warships are actually used as substitutes for
a land-home base not only of military aircraft but also of military personnel and facilities. Besides, vessels are mobile as compared to
a land-based military headquarters.
At this juncture, we shall then resolve the issue of whether or not the requirements of Section 25 were complied with when the
Senate gave its concurrence to the VFA.
Section 25, Article XVIII disallows foreign military bases, troops, or facilities in the country, unless the following conditions are
sufficiently met, viz: (a) it must be under a treaty; (b) the treaty must be duly concurred in by the Senate and, when so required by
congress, ratified by a majority of the votes cast by the people in a national referendum; and (c) recognized as a treaty by the other
contracting state.
There is no dispute as to the presence of the first two requisites in the case of the VFA. The concurrence handed by the Senate
through Resolution No. 18 is in accordance with the provisions of the Constitution, whether under the general requirement in
Section 21, Article VII, or the specific mandate mentioned in Section 25, Article XVIII, the provision in the latter article requiring
ratification by a majority of the votes cast in a national referendum being unnecessary since Congress has not required it.
As to the matter of voting, Section 21, Article VII particularly requires that a treaty or international agreement, to be valid and
effective, must be concurred in by at least two-thirds of all the members of the Senate. On the other hand, Section 25, Article XVIII
simply provides that the treaty be "duly concurred in by the Senate."
Applying the foregoing constitutional provisions, a two-thirds vote of all the members of the Senate is clearly required so that the
concurrence contemplated by law may be validly obtained and deemed present. While it is true that Section 25, Article XVIII
requires, among other things, that the treaty-the VFA, in the instant case-be "duly concurred in by the Senate," it is very true
however that said provision must be related and viewed in light of the clear mandate embodied in Section 21, Article VII, which in
more specific terms, requires that the concurrence of a treaty, or international agreement, be made by a two -thirds vote of all the
members of the Senate. Indeed, Section 25, Article XVIII must not be treated in isolation to section 21, Article, VII.
As noted, the "concurrence requirement" under Section 25, Article XVIII must be construed in relation to the provisions of Section
21, Article VII. In a more particular language, the concurrence of the Senate contemplated under Section 25, Article XVIII means that
at least two-thirds of all the members of the Senate favorably vote to concur with the treaty-the VFA in the instant case.
Under these circumstances, the charter provides that the Senate shall be composed of twenty-four (24) Senators.30 Without a tinge
of doubt, two-thirds (2/3) of this figure, or not less than sixteen (16) members, favorably acting on the proposal is an unquestionable
compliance with the requisite number of votes mentioned in Section 21 of Article VII. The fact that there were actually twenty-three
(23) incumbent Senators at the time the voting was made, will not alter in any significant way the circumstance that more than two-
thirds of the members of the Senate concurred with the proposed VFA, even if the two-thirds vote requirement is based on this
figure of actual members (23). In this regard, the fundamental law is clear that two-thirds of the 24 Senators, or at least 16 favorable
votes, suffice so as to render compliance with the strict constitutional mandate of giving concurrence to the subject treaty.
Having resolved that the first two requisites prescribed in Section 25, Article XVIII are present, we shall now pass upon and delve on
the requirement that the VFA should be recognized as a treaty by the United States of America.
Petitioners content that the phrase "recognized as a treaty," embodied in section 25, Article XVIII, means that the VFA should have
the advice and consent of the United States Senate pursuant to its own constitutional process, and that it should not be considered
merely an executive agreement by the United States.
In opposition, respondents argue that the letter of United States Ambassador Hubbard stating that the VFA is binding on the United
States Government is conclusive, on the point that the VFA is recognized as a treaty by the United States of America. According to
respondents, the VFA, to be binding, must only be accepted as a treaty by the United States.
This Court is of the firm view that the phrase "recognized as a treaty" means that the other contracting party accepts or
acknowledges the agreement as a treaty.32 To require the other contracting state, the United States of America in this case, to
submit the VFA to the United States Senate for concurrence pursuant to its Constitution, is to accord strict meaning to the phrase.
Well-entrenched is the principle that the words used in the Constitution are to be given their ordinary meaning except where
technical terms are employed, in which case the significance thus attached to them prevails. Its language should be understood in
the sense they have in common use.
Moreover, it is inconsequential whether the United States treats the VFA only as an executive agreement because, under
international law, an executive agreement is as binding as a treaty.35 To be sure, as long as the VFA possesses the elements of an
agreement under international law, the said agreement is to be taken equally as a treaty.
A treaty, as defined by the Vienna Convention on the Law of Treaties, is "an international instrument concluded between States in
written form and governed by international law, whether embodied in a single instrument or in two or more related instruments,
and whatever its particular designation."36 There are many other terms used for a treaty or international agreement, some of which
are: act, protocol, agreement, compromis d’ arbitrage, concordat, convention, declaration, exchange of notes, pact, statute, charter
and modus vivendi. All writers, from Hugo Grotius onward, have pointed out that the names or titles of international agreements
included under the general term treaty have little or no legal significance. Certain terms are useful, but they furnish little more than
mere description.
Article 2(2) of the Vienna Convention provides that "the provisions of paragraph 1 regarding the use of terms in the present
Convention are without prejudice to the use of those terms, or to the meanings which may be given to them in the internal law of
the State."
Thus, in international law, there is no difference between treaties and executive agreements in their binding effect upon states
concerned, as long as the negotiating functionaries have remained within their powers. International law continues to make no
distinction between treaties and executive agreements: they are equally binding obligations upon nations.
In our jurisdiction, we have recognized the binding effect of executive agreements even without the concurrence of the Senate or
Congress. In Commissioner of Customs vs. Eastern Sea Trading, we had occasion to pronounce:
"x x x the right of the Executive to enter into binding agreements without the necessity of subsequent congressional approval has
been confirmed by long usage. From the earliest days of our history we have entered into executive agreements covering such
subjects as commercial and consular relations, most-favored-nation rights, patent rights, trademark and copyright protection, postal
and navigation arrangements and the settlement of claims. The validity of these has never been seriously questioned by our courts.
"x x x x x x x x x
"Furthermore, the United States Supreme Court has expressly recognized the validity and constitutionality of executive agreements
entered into without Senate approval. (39 Columbia Law Review, pp. 753-754) (See, also, U.S. vs. Curtis Wright Export Corporation,
299 U.S. 304, 81 L. ed. 255; U.S. vs. Belmont, 301 U.S. 324, 81 L. ed. 1134; U.S. vs. Pink, 315 U.S. 203, 86 L. ed. 796; Ozanic vs. U.S.
188 F. 2d. 288; Yale Law Journal, Vol. 15 pp. 1905-1906; California Law Review, Vol. 25, pp. 670-675; Hyde on International Law
[revised Edition], Vol. 2, pp. 1405, 1416-1418; willoughby on the U.S. Constitution Law, Vol. I [2d ed.], pp. 537-540; Moore,
International Law Digest, Vol. V, pp. 210-218; Hackworth, International Law Digest, Vol. V, pp. 390-407). (Italics Supplied)" (Emphasis
Ours)
The deliberations of the Constitutional Commission which drafted the 1987 Constitution is enlightening and highly-instructive:
"MR. MAAMBONG. Of course it goes without saying that as far as ratification of the other state is concerned, that is entirely their
concern under their own laws.
FR. BERNAS. Yes, but we will accept whatever they say. If they say that we have done everything to make it a treaty, then as far as
we are concerned, we will accept it as a treaty."
The records reveal that the United States Government, through Ambassador Thomas C. Hubbard, has stated that the United States
government has fully committed to living up to the terms of the VFA.42 For as long as the united States of America accepts or
acknowledges the VFA as a treaty, and binds itself further to comply with its obligations under the treaty, there is indeed marked
compliance with the mandate of the Constitution.
Worth stressing too, is that the ratification, by the President, of the VFA and the concurrence of the Senate should be taken as a
clear an unequivocal expression of our nation’s consent to be bound by said treaty, with the concomitant duty to uphold the
obligations and responsibilities embodied thereunder.
Ratification is generally held to be an executive act, undertaken by the head of the state or of the government, as the case may be,
through which the formal acceptance of the treaty is proclaimed.43 A State may provide in its domestic legislation the process of
ratification of a treaty. The consent of the State to be bound by a treaty is expressed by ratification when: (a) the treaty provides for
such ratification, (b) it is otherwise established that the negotiating States agreed that ratification should be required, (c) the
representative of the State has signed the treaty subject to ratification, or (d) the intention of the State to sign the treaty subject to
ratification appears from the full powers of its representative, or was expressed during the negotiation.
In our jurisdiction, the power to ratify is vested in the President and not, as commonly believed, in the legislature. The role of the
Senate is limited only to giving or withholding its consent, or concurrence, to the ratification.
With the ratification of the VFA, which is equivalent to final acceptance, and with the exchange of notes between the Philippines and
the United States of America, it now becomes obligatory and incumbent on our part, under the principles of international law, to be
bound by the terms of the agreement. Thus, no less than Section 2, Article II of the Constitution,46 declares that the Philippines
adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace,
equality, justice, freedom, cooperation and amity with all nations.
As a member of the family of nations, the Philippines agrees to be bound by generally accepted rules for the conduct of its
international relations. While the international obligation devolves upon the state and not upon any particular branch, institution, or
individual member of its government, the Philippines is nonetheless responsible for violations committed by any branch or
subdivision of its government or any official thereof. As an integral part of the community of nations, we are responsible to assure
that our government, Constitution and laws will carry out our international obligation.47 Hence, we cannot readily plead the
Constitution as a convenient excuse for non-compliance with our obligations, duties and responsibilities under international law.
Beyond this, Article 13 of the Declaration of Rights and Duties of States adopted by the International Law Commission in 1949
provides: "Every State has the duty to carry out in good faith its obligations arising from treaties and other sources of international
law, and it may not invoke provisions in its constitution or its laws as an excuse for failure to perform this duty."
Equally important is Article 26 of the convention which provides that "Every treaty in force is binding upon the parties to it and must
be performed by them in good faith." This is known as the principle of pacta sunt servanda which preserves the sanctity of treaties
and have been one of the most fundamental principles of positive international law, supported by the jurisprudence of international
tribunals.
NO GRAVE ABUSE OF DISCRETION
In the instant controversy, the President, in effect, is heavily faulted for exercising a power and performing a task conferred upon
him by the Constitution-the power to enter into and ratify treaties. Through the expediency of Rule 65 of the Rules of Court,
petitioners in these consolidated cases impute grave abuse of discretion on the part of the chief Executive in ratifying the VFA, and
referring the same to the Senate pursuant to the provisions of Section 21, Article VII of the Constitution.
On this particular matter, grave abuse of discretion implies such capricious and whimsical exercise of judgment as is equivalent to
lack of jurisdiction, or, when the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility, and
it must be so patent and gross as to amount to an evasion of positive duty enjoined or to act at all in contemplation of law.
By constitutional fiat and by the intrinsic nature of his office, the President, as head of State, is the sole organ and authority in the
external affairs of the country. In many ways, the President is the chief architect of the nation’s foreign policy; his "dominance in the
field of foreign relations is (then) conceded." Wielding vast powers an influence, his conduct in the external affairs of the nation, as
Jefferson describes, is "executive altogether."
As regards the power to enter into treaties or international agreements, the Constitution vests the same in the President, subject
only to the concurrence of at least two-thirds vote of all the members of the Senate. In this light, the negotiation of the VFA and the
subsequent ratification of the agreement are exclusive acts which pertain solely to the President, in the lawful exercise of his vast
executive and diplomatic powers granted him no less than by the fundamental law itself. Into the field of negotiation the Senate
cannot intrude, and Congress itself is powerless to invade it.53 Consequently, the acts or judgment calls of the President involving
the VFA-specifically the acts of ratification and entering into a treaty and those necessary or incidental to the exercise of such
principal acts - squarely fall within the sphere of his constitutional powers and thus, may not be validly struck down, much less
calibrated by this Court, in the absence of clear showing of grave abuse of power or discretion.
It is the Court’s considered view that the President, in ratifying the VFA and in submitting the same to the Senate for concurrence,
acted within the confines and limits of the powers vested in him by the Constitution. It is of no moment that the President, in the
exercise of his wide latitude of discretion and in the honest belief that the VFA falls within the ambit of Section 21, Article VII of the
Constitution, referred the VFA to the Senate for concurrence under the aforementioned provision. Certainly, no abuse of discretion,
much less a grave, patent and whimsical abuse of judgment, may be imputed to the President in his act of ratifying the VFA and
referring the same to the Senate for the purpose of complying with the concurrence requirement embodied in the fundamental law.
In doing so, the President merely performed a constitutional task and exercised a prerogative that chiefly pertains to the functions of
his office. Even if he erred in submitting the VFA to the Senate for concurrence under the provisions of Section 21 of Article VII,
instead of Section 25 of Article XVIII of the Constitution, still, the President may not be faulted or scarred, much less be adjudged
guilty of committing an abuse of discretion in some patent, gross, and capricious manner.
For while it is conceded that Article VIII, Section 1, of the Constitution has broadened the scope of judicial inquiry into areas
normally left to the political departments to decide, such as those relating to national security, it has not altogether done away with
political questions such as those which arise in the field of foreign relations.54 The High Tribunal’s function, as sanctioned by Article
VIII, Section 1, "is merely (to) check whether or not the governmental branch or agency has gone beyond the constitutional limits of
its jurisdiction, not that it erred or has a different view. In the absence of a showing… (of) grave abuse of discretion amounting to
lack of jurisdiction, there is no occasion for the Court to exercise its corrective power…It has no power to look into what it thinks is
apparent error."
As to the power to concur with treaties, the constitution lodges the same with the Senate alone.1âwphi1 Thus, once the Senate56
performs that power, or exercises its prerogative within the boundaries prescribed by the Constitution, the concurrence cannot, in
like manner, be viewed to constitute an abuse of power, much less grave abuse thereof. Corollarily, the Senate, in the exercise of its
discretion and acting within the limits of such power, may not be similarly faulted for having simply performed a task conferred and
sanctioned by no less than the fundamental law.
For the role of the Senate in relation to treaties is essentially legislative in character;57 the Senate, as an independent body
possessed of its own erudite mind, has the prerogative to either accept or reject the proposed agreement, and whatever action it
takes in the exercise of its wide latitude of discretion, pertains to the wisdom rather than the legality of the act. In this sense, the
Senate partakes a principal, yet delicate, role in keeping the principles of separation of powers and of checks and balances alive and
vigilantly ensures that these cherished rudiments remain true to their form in a democratic government such as ours. The
Constitution thus animates, through this treaty-concurring power of the Senate, a healthy system of checks and balances
indispensable toward our nation’s pursuit of political maturity and growth. True enough, rudimentary is the principle that matters
pertaining to the wisdom of a legislative act are beyond the ambit and province of the courts to inquire.
In fine, absent any clear showing of grave abuse of discretion on the part of respondents, this Court- as the final arbiter of legal
controversies and staunch sentinel of the rights of the people - is then without power to conduct an incursion and meddle with such
affairs purely executive and legislative in character and nature. For the Constitution no less, maps out the distinct boundaries and
limits the metes and bounds within which each of the three political branches of government may exercise the powers exclusively
and essentially conferred to it by law.
WHEREFORE, in light of the foregoing disquisitions, the instant petitions are hereby DISMISSED.
SO ORDERED.
DISSENTING OPINION
PUNO, J.:
The cases at bar offer a smorgasbord of issues. As summed up by the Solicitor General, they are:
"I
DO PETITIONERS HAVE STANDING AS CONCERNED CITIZENS, TAXPAYERS, OR LEGISLATORS?
II
IS THE VFA CONSISTENT WITH THE GENERAL WELFARE CLAUSE OF THE CONSTITUTION?
III
IS THE VFA GOVERNED BY THE PROVISIONS OF SECTION 21, ARTICLE VII OR SECTION 25, ARTICLE XVIII OF THE CONSTITUTION?
IV
DOES THE VFA CONSTITUTE AN ABDICATION OF PHILIPPINE SOVEREIGNTY?
(a) DOES THE VFA DEPRIVE PHILIPPINE COURTS OF THEIR JURISDICTION TO HEAR AND TRY OFFENSES COMMITTED BY U.S. MILITARY
PERSONNEL?
(b) IS THIS COURT DEPRIVED OF ITS JURISDICTION OVER OFFENSES PUNISHABLE BY RECLUSION PERPETUA OR HIGHER?
(c) IS THE GRANT OF TAX EXEMPTIONS UNDER THE VFA UNCONSTITUTIONAL?
V
DOES THE VFA VIOLATE THE EQUAL PROTECTION CLAUSE UNDER SECTION 1, ARTICLE III OF THE CONSTITUTION?
VI
IS THE NUCLEAR BAN UNDER SECTION 8, ARTICLE II OF THE CONSITUTION VIOLATED BY THE VFA?
VII
ARE FILIPINOS DENIED THEIR PERSONAL AND PROPERTY RIGHT TO SUE FOR TORTS AND DAMAGES?
VIII
WAS THERE UNDUE DELEGATION OF LEGISLATIVE POWER IN THE APPROVAL OF THE VFA?
IX
DOES THE VFA CONTRAVENE THE POLICY OF NEUTRALITY UNDER SECTION 7, ARTICLE II OF THE CONSTITUTION?
X
IS THE TERM "ACTIVITIES" UNDER THE COVERAGE OF THE VFA VAGUE, UNQUALIFIED OR UNCERTAIN?"
I like to think that the most significant issue is whether the Visiting Forces Agreement (VFA) violates Sec. 25, Art. XVIII of the
Constitution. I shall therefore limit my opinion on this jugular issue.
The 1987 Constitution provides in Sec. 25, Art. XVIII, viz:
"After the expiration in 1991 of the Agreement between the Republic of the Philippines and the United States of America concerning
Military Bases, foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred
in by the Senate and, when the Congress so requires, ratified by a majority of the votes cast by the people in a national referendum
held for that purpose, and recognized as a treaty by the other contracting State."
This provision lays down three constitutional requisites that must be complied with before foreign military bases, troops, or facilities
can be allowed in Philippine territory, namely: (1) their presence should be allowed by a treaty duly concurred in by the Philippine
Senate; (2) when Congress so requires, such treaty should be ratified by a majority of the votes cast by the Filipino people in a
national referendum held for that purpose; and (3) such treaty should be recognized as a treaty by the other contracting party.
To start with, respondents, with unrelenting resolve, claim that these constitutional requirements are not applicable to the VFA.
They contend that the VFA, as its title implies, contemplates merely temporary visits of U.S. military troops in Philippine territory,
and thus does not come within the purview of Sec. 25, Art. XVIII of the Constitution. They assert that this constitutional provision
applies only to the stationing or permanent presence of foreign military troops on Philippine soil since the word "troops" is
mentioned along with "bases" and "facilities" which are permanent in nature.1 This assertion would deserve serious attention if the
temporary nature of these visits were indeed borne out by the provisions of the VFA. If we turn, however, a heedful eye on the
provisions of the VFA as well as the interpretation accorded to it by the government officials charged with its negotiation and
implementation, the temporary nature of the visits would turn out to be a mirage in a desert of vague provisions of the VFA. Neither
the VFA nor the Mutual Defense Treaty between the Republic of the Philippines and the United States of America2 to which the VFA
refers in its preamble,3 provides the slightest suggestion on the duration of visits of U.S. forces in Philippine territory. The joint
public hearings on the VFA conducted by the Senate Committee on Foreign Relations and the Senate Committee on National
Defense and Security give us a keyhole to the time frame involved in these visits.
Secretary of Foreign Affairs Domingo L. Siazon, the Philippine’s signatory to the VFA, testified before the said committees that even
before the signing of the VFA, Philippine and U.S. troops conducted joint military exercises in Philippine territory for two days to four
weeks at the frequency of ten to twelve exercises a year. The "Balikatan", the largest combined military exercise involving about
3,000 troops, lasted at an average of three to four weeks and occurred once every year or one and a half years.4 He further declared
that the VFA contemplates the same time line for visits of U.S. troops, but argued that even if these troops conduct ten to twelve
exercises a year with each exercise lasting for two to three weeks, their stay will not be uninterrupted, hence, not permanent.5
Secretary of National Defense Orlando S. Mercado further testified that the VFA will allow joint military exercises between the
Philippine and U.S. troops on a larger scale than those we had been undertaking since 1994.6 As the joint military exercises will be
conducted on a larger scale, it would be reasonable to project an escalation of the duration as well as frequency of past joint military
exercises between Philippine and U.S. troops.
These views on the temporary nature of visits of U.S. troops cannot stand for, clearly, the VFA does not provide for a specific and
limited period of effectivity. It instead provides an open-ended term in Art. IX, viz: ". . . (t)his agreement shall remain in force until
the expiration of 180 days from the date on which either party gives the other party notice in writing that it desires to terminate the
agreement." No magic of semantics will blur the truth that the VFA could be in force indefinitely. The following exchange between
Senator Aquilino Q. Pimentel, Jr. and Secretary Siazon in the public hearings on the VFA is apropos to the issue:
"SEN. PIMENTEL. . . . In other words, this kind of activities are not designed to last only within one year, for example, the various
visits, but can cover eternity until the treaty is abrogated?
MR. SIAZON. Well, Your Honor, this is an exercise for the protection of our national security, and until conditions are such that there
is no longer a possible threat to our national security, then you will have to continue exercising, Your Honor, because we cannot take
a chance on it.
SEN. PIMENTEL. So, this will be temporarily permanent, or permanently temporary?
MR. SIAZON. Permanently temporary, Your Honor."
The worthiest of wordsmiths cannot always manipulate the meaning of words. Black’s Law Dictionary defines "temporary" as "that
which is to last for a limited time only, as distinguished from that which is perpetual or indefinite in its duration"8 and states that
"permanent" is "generally opposed to ‘temporary’ but not always meaning perpetual." The definitions of "temporary" and
"permanent" in Bouvier’s Law Dictionary are of similar import: temporary is "that which is to last for a limited time" while
permanent "does not always embrace the idea of absolute perpetuity." By these definitions, even the contingency that the
Philippines may abrogate the VFA when there is no longer any threat to our national security does not make the visits of U.S. troops
temporary, nor do short interruptions in or gaps between joint military exercises carve them out from the definition of "permanent"
as permanence does not necessarily contemplate absolute perpetuity.
It is against this tapestry woven from the realities of the past and a vision of the future joint military exercises that the Court must
draw a line between temporary visits and permanent stay of U.S. troops. The absence in the VFA of the slightest suggestion as to the
duration of visits of U.S. troops in Philippine territory, coupled with the lack of a limited term of effectivity of the VFA itself justify the
interpretation that the VFA allows permanent, not merely temporary, presence of U.S. troops on Philippine soil. Following Secretary
Siazon’s testimony, if the visits of U.S. troops could last for four weeks at the most and at the maximum of twelve times a year for an
indefinite number of years, then by no stretch of logic can these visits be characterized as temporary because in fact, the U.S. troops
could be in Philippine territory 365 days a year for 50 years -- longer than the duration of the 1947 RP-US Military Bases
Agreement12 which expired in 1991 and which, without question, contemplated permanent presence of U.S. bases, facilities, and
troops.
To be sure, even former Secretary of Justice, Serafin Cuevas, admitted in the same public hearings that the subject matter of the
VFA, i.e., the visits and activities of U.S. troops in Philippine territory, partakes of a permanent character. He declared with clarity:
"MR. CUEVAS. . . . Why we considered this as a treaty is because the subject therein treated had some character of permanence; and
secondly, there is a change insofar as some of our laws are concerned."
Thus, regardless of whether Sec. 25, Art. XVIII of the Constitution contemplates permanent presence of foreign military troops alone,
or temporary presence as well, the VFA comes within its purview as it allows the permanent presence of U.S. troops on Philippine
soil. Contrary to respondents’ allegation, the determination of the permanent nature of visits of U.S. troops under the VFA is an
issue ripe for adjudication since Sec. 25 of Art. XVIII speaks of the manner by which U.S. troops may be allowed to enter Philippine
territory. We need not wait and see, therefore, whether the U.S. troops will actually conduct military exercises on Philippine soil on
a permanent basis before adjudicating this issue. What is at issue is whether the VFA allows such permanent presence of U.S. troops
in Philippine territory.
To determine compliance of the VFA with the requirements of Sec. 25, Art. XVIII of the Constitution, it is necessary to ascertain the
intent of the framers of the Constitution as well as the will of the Filipino people who ratified the fundamental law. This exercise
would inevitably take us back to the period in our history when U.S. military presence was entrenched in Philippine territory with the
establishment and operation of U.S. Military Bases in several parts of the archipelago under the 1947 R.P.-U.S. Military Bases
Agreement. As articulated by Constitutional Commissioner Blas F. Ople in the 1986 Constitutional Commission deliberations on this
provision, the 1947 RP-US Military Bases Agreement was ratified by the Philippine Senate, but not by the United States Senate. In
the eyes of Philippine law, therefore, the Military Bases Agreement was a treaty, but by the laws of the United States, it was a mere
executive agreement.14 This asymmetry in the legal treatment of the Military Bases Agreement by the two countries was believed
to be a slur to our sovereignty. Thus, in the debate among the Constitutional Commissioners, the unmistakable intention of the
commission emerged that this anomalous asymmetry must never be repeated.15 To correct this historical aberration, Sec. 25, Art.
XVIII of the Constitution requires that the treaty allowing the presence of foreign military bases, troops, and facilities should also be
"recognized as a treaty by the other contracting party." In plain language, recognition of the United States as the other contracting
party of the VFA should be by the U.S. President with the advice and consent of the U.S. Senate. The following exchanges manifest
this intention:
"MR. OPLE. Will either of the two gentlemen yield to just one question for clarification? Is there anything in this formulation,
whether that of Commissioner Bernas or of Commissioner Romulo, that will prevent the Philippine government from abrogating the
existing bases agreement?
FR. BERNAS. To my understanding, none.
MR. ROMULO. I concur with Commissioner Bernas.
MR. OPLE. I was very keen to put this question because I had taken the position from the beginning - and this is embodied in a
resolution filed by Commissioners Natividad, Maambong and Regalado - that it is very important that the government of the
Republic of the Philippines be in a position to terminate or abrogate the bases agreement as one of the options. . . . we have
acknowledged starting at the committee level that the bases agreement was ratified by our Senate; it is a treaty under Philippine
law. But as far as the Americans are concerned, the Senate never took cognizance of this and therefore, it is an executive agreement.
That creates a wholly unacceptable asymmetry between the two countries. Therefore, in my opinion, the right step to take, if the
government of our country will deem it in the national interest to terminate this agreement or even to renegotiate it, is that we
must begin with a clean slate; we should not be burdened by the flaws of the 1947 Military Bases Agreement. . .
MR. ROMULO. Madam President, I think the two phrases in the Bernas formulation take care of Commissioner Ople’s concerns.
The first says "EXCEPT UNDER THE TERMS OF A TREATY." That means that if it is to be renegotiated, it must be under the terms of a
new treaty. The second is the concluding phrase which says: "AND RECOGNIZED AS A TREATY BY THE OTHER CONTRACTING STATE."
xxx
MR. SUAREZ. Is the proposal prospective and not retroactive in character?
FR. BERNAS. Yes, it is prospective because it does not touch the validity of the present agreement. However, if a decision should be
arrived at that the present agreement is invalid, then even prior to 1991, this becomes operative right away.
MR. SUAREZ. In other words, we do not impress the previous agreements with a valid character, neither do we say that they are null
and void ab initio as claimed by many of us here.
FR. BERNAS. The position I hold is that it is not the function of this Commission to pass judgment on the validity or invalidity of the
subsisting agreement.
MR. SUAREZ. . . . the proposal requires recognition of this treaty by the other contracting nation. How would that recognition be
expressed by that other contracting nation? That is in accordance with their constitutional or legislative process, I assume.
FR. BERNAS. As Commissioner Romulo indicated, since this certainly would refer only to the United States, because it is only the
United States that would have the possibility of being allowed to have treaties here, then we would have to require that the Senate
of the United States concur in the treaty because under American constitutional law, there must be concurrence on the part of the
Senate of the United States to conclude treaties.
xxx
FR. BERNAS. When I say that the other contracting state must recognize it as a treaty, by that I mean it must perform all the acts
required for the agreement to reach the status of a treaty under their jurisdiction." (emphasis supplied)17
In ascertaining the VFA’s compliance with the constitutional requirement that it be "recognized as a treaty by the other contracting
state," it is crystal clear from the above exchanges of the Constitutional Commissioners that the yardstick should be U.S.
constitutional law. It is therefore apropos to make a more in depth study of the U.S. President’s power to enter into executive
agreements under U.S. constitutional law.
Sec. 2, Art. II, Clause 2 of the U.S. Constitution provides that the President "shall have Power, by and with the Advice and Consent of
the Senate, to make Treaties, provided two thirds of the Senators present concur." The U.S. Constitution does not define "treaties".
Nevertheless, the accepted definition of a "treaty" is that of "an agreement between two or more states or international
organizations that is intended to be legally binding and is governed by international law."18 Although the United States did not
formally ratify the Vienna Convention on the Law of Treaties, its definition of a treaty has been applied by U.S. courts and the State
Department has stated that the Vienna Convention represents customary international law.19 The Vienna Convention defines a
treaty as "an international agreement concluded between States in written form and governed by international law."20 It has been
observed that this definition is broader than the sense in which "treaty" is used in the U.S. Constitution. In U.S. practice, a "treaty" is
only one of four types of international agreements, namely: Article II treaties, executive agreements pursuant to a treaty,
congressional-executive agreements, and sole executive agreements.
The term "executive agreement" is used both colloquially and in scholarly and governmental writings as a convenient catch-all to
subsume all international agreements intended to bind the United States and another government, other than those which receive
consent of two-thirds of the U.S. Senate.22 The U.S. Constitution does not expressly confer authority to make these executive
agreements, hence the authority to make them, their scope, and legal force have been the subject of a long-ongoing debate.23 This,
notwithstanding, executive agreements have grown to be a primary instrument of foreign policy in the United States. In 1789-1839,
the United States concluded 60 treaties and only 27 executive agreements. In 1930-1939, the United States entered into 142 treaties
and 144 executive agreements. In 1940-1949, 116 treaties and 919 executive agreements were concluded by the United States.
From 1980-1988, the United States entered into 136 treaties and 3,094 executive agreements. In sum, by 1988, there were 12,778
executive agreements as opposed to 1,476 treaties, accounting for about 90% of the international agreements concluded by the
United States.
The upsurge in the use of executive agreements in the post World War II period may be attributed to several factors. President
Franklin Roosevelt set a precedent for the more recent presidents by, for instance, completing the Destroyer-for-Bases deal of 1940
with an executive agreement. President Harry S. Truman likewise concluded the Potsdam Agreement by executive agreement. The
U.S. Presidents also committed military missions in Honduras and El Salvador in the 1950’s; pledged security to Turkey, Iran, and
Pakistan; acquired permission from the British to use the island of Diego Garcia for military purposes in the 1960’s; and established a
military mission in Iran in 1974, all by way of executive agreements.25 U.S. Supreme Court decisions affirming the validity of
executive agreements have also contributed to the explosive growth in their usage.26 Another factor that accelerated its use was
the foreign policy cooperation between Congress and the executive as expressed in the postwar refrain that "politics must end at
the water’s edge."27 The fourth factor is the expansion of executive institutions including foreign policy machinery and
information.28 The fifth factor is the Cold War which put the United States in a "constant state of emergency" which required
expediency in decisions and actions regarding the use of force or diplomacy. Last but not the least, the nuclear weapons race and
instantaneous global communication made centralized foreign policy machinery under the U.S. President necessary.
These executive agreements which have grown to be the primary instrument of U.S. foreign policy may be classified into three
types, namely:
(1) Treaty-authorized executive agreements, i.e., agreements made by the President pursuant to authority conferred in a prior
treaty;
(2) Congressional-executive agreements, i.e., agreements either (a) negotiated by the President with prior Congressional
authorization or enactment or (b) confirmed by both Houses of Congress after the fact of negotiation; and
(3) Presidential or sole executive agreements, i.e., agreements made by the President based on his exclusive presidential powers,
such as the power as commander-in-chief of the armed forces pursuant to which he conducts military operations with U.S. allies, or
his power to receive ambassadors and recognize foreign governments.
This classification is important as the different types of executive agreements bear distinctions in terms of constitutional basis,
subject matter, and legal effects in the domestic arena. For instance, treaty-authorized executive agreements do not pose
constitutional problems as they are generally accepted to have been pre-approved by the Senate when the Senate consented to the
treaty which authorized the executive to enter into executive agreements; another view supporting its acceptance is that the Senate
delegated to the President the authority to make the executive agreement.33 In comparison, the constitutionality of congressional-
executive agreements has provoked debate among legal scholars. One view, espoused by interpretivists such as Edwin Borchard,
holds that all international agreements must be strictly in accordance with Sec. 2, Art. II of the U.S. Constitution, and thus
congressional-executive agreements are constitutionally invalid. According to them, allowing congressional-executive agreements
would enhance the power of the President as well as of the House of Representatives, in utter violation of the intent of the framers
of the U.S. Constitution.34 The opposite school of thought, led by Myer S. McDougal and Asher Lans, holds that congressional-
executive agreements and treaties are interchangeable, thus, such agreements are constitutional. These non-interpretivists buttress
their stance by leaning on the constitutional clause that prohibits States, without consent of Congress, from "enter(ing) into any
Agreement or Compact with another State, or with a Foreign Power." By making reference to international agreements other than
treaties, these scholars argue that the framers of the Constitution intended international agreements, other than treaties, to exist.
This school of thought generally opposes the "mechanical, filiopietistic theory, (which) purports to regard the words of the
Constitution as timeless absolutes"35 and gives emphasis to the necessity and expediency of congressional-executive agreements in
modern foreign affairs.36 Finally, sole executive agreements which account for a relatively small percentage of executive
agreements are the most constitutionally problematic since the system of checks and balances is inoperative when the President
enters into an executive agreement with neither the Senate’s or Congress’ consent. This last type of executive agreement draws
authority upon the President’s enumerated powers under Article II of the U.S. Constitution, such as the President’s power as
Commander-in-Chief of the U.S. army and navy.
I respectfully submit that, using these three types of executive agreements as bases for classification, the VFA would not fall under
the category of an executive agreement made by the president pursuant to authority conferred in a prior treaty because although
the VFA makes reference to the Mutual Defense Treaty in its Preamble, the Mutual Defense Treaty itself does not confer authority
upon the U.S. President to enter into executive agreements in implementation of the Treaty. Issues have occasionally arisen about
whether an executive agreement was entered into pursuant to a treaty. These issues, however, involved mere treaty interpretation.
In Wilson v. Girard, 354 US 524 (1957), the U.S. Supreme Court had occasion to interpret Art. III of the Security Treaty Between the
United States of America and Japan which stated that, "(t)he conditions which shall govern the disposition of armed forces of the
United States of America in and about Japan shall be determined by administrative agreements between the two Governments."
Pursuant to this provision in the treaty, the executive entered into an administrative agreement covering, among other matters,
jurisdiction of the United States over offenses committed in Japan by members of the U.S. armed forces. The U.S. Supreme Court
recognized the validity of the Administrative Agreement as it was concluded by the President pursuant to the authority conferred
upon him by Art. III of the Security Treaty between Japan and the United States to make administrative agreements between the
two governments concerning "(t)he conditions which shall govern the disposition of armed forces of the United States of America in
and about Japan."
Respondents boldly claim that the VFA is authorized by Art. II of the RP-US Mutual Defense Treaty which provides that, "(i)n order
more effectively to achieve the objective of this Treaty, the Parties separately and jointly by self-help and mutual aid will maintain
and develop their individual and collective capacity to resist armed attack."41 The alleged authorization is not as direct and
unequivocal as Art. III of the Security Treaty Between the U.S. and Japan, hence it would be precarious to assume that the VFA
derives authorization from the Mutual Defense Treaty. The precariousness is heightened by the fact that when the U.S. Senate
ratified the Agreement Between the Parties to the North Atlantic Treaty Regarding the Status of Their Forces42 which was
concluded pursuant to the North Atlantic Treaty (NATO),43 the Senate included in its instrument of ratification statements on
matters of jurisdiction over U.S. forces stationed abroad, among which was an admonition that the Agreement’s provisions on
criminal jurisdiction which have similar features as the VFA, do not constitute a precedent for future agreements. We can reasonably
gather from the U.S. Senate’s statements that criminal jurisdiction over U.S. forces stationed abroad is a matter of Senate concern,
and thus Senate authorization for the President to enter into agreements touching upon such jurisdictional matters cannot so easily
be assumed.
Neither does the VFA fall under the category of a Congressional-Executive Agreement as it was not concluded by the U.S. President
pursuant to Congressional authorization or enactment nor has it been confirmed by the U.S. Congress.
At best, the VFA would be more akin to a sole or presidential executive agreement which would be valid if concluded on the basis of
the U.S. President’s exclusive power under the U.S. Constitution. Respondents argue that except for the Status of Forces Agreement
(SOFA) entered into pursuant to the NATO, the United States, by way of executive agreements, has entered into 78 Status of Forces
Agreements (SOFA) which extend privileges and immunities to U.S. forces stationed abroad,44 similar to the provisions of the VFA.
Respondents have failed, however, to qualify whether these executive agreements are sole executive agreements or were
concluded pursuant to Congressional authorization or were authorized by treaty. This detail is important in view of the above
discussion on the sense of the Senate on criminal jurisdiction over U.S. forces stationed abroad.
It will contribute to the elucidation of the legal status of the VFA under U.S. law if we compare the legal force of sole executive
agreements and of treaties. Under international law, treaties and executive agreements equally bind the United States.45 If there is
any distinction between treaties and executive agreements, it must be found in U.S. constitutional law.46 The distinctions, if any,
between the legal force of treaties and executive agreements on the domestic plane may be treated on three levels, namely, vis-a-
vis: (1) state law; (2) acts of Congress and treaties; and (3) the U.S. Constitution. The Supremacy Clause of the U.S. Constitution
provides: "This Constitution, and the Law of the United States which shall be made in pursuance thereof; and all Treaties made, or
which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State
shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."
It is well-settled that this clause provides the constitutional basis for the superiority of a treaty over state law. Thus, the Warsaw
Convention to which the United States is a signatory preempts the California law on airline liability.48 The U.S. Supreme Court has
ruled in unmistakable terms that a treaty enjoys supremacy over state law, viz:
"Plainly, the external powers of the United States are to be exercised without regard to state laws or policies. The supremacy of a
treaty in this respect has been recognized from the beginning. Mr. Madison, in the Virginia Convention, said that if a treaty does not
supersede existing state laws, as far as they contravene its operation, the treaty would be ineffective. "To counter-act it by the
supremacy of the state laws, would bring on the Union the just charge of national perfidy, and involve us in war." 3 Elliot, Debates,
515. . . . this rule in respect of treaties is established by the express language of cl. 2, Art. 6, of the Constitution. . . ."(emphasis
supplied)
It is also generally conceded that sole executive agreements are supreme over state law and policy. Two cases decided by the U.S.
Supreme Court support this view.
The first of these two cases, United States v. Belmont,50 involved the Litvinov Assignment, a sole executive agreement executed
between the United States and the Soviet Government. In 1918, the Soviet government, by laws and decrees, nationalized, among
others, a Russian corporation, and appropriated its assets including a sum of money deposited with Belmont, a private banker doing
business in New York. The sum of money remained Russian property until 1933, at which time the Soviet government released and
assigned to the United States all amounts due the Soviet government from American nationals, including the deposit account of the
Russian corporation with Belmont. The assignment, better known as the Litvinov Assignment, was effected by an exchange of
diplomatic correspondence between the Soviet government and the United States to bring about a final settlement of the claims
and counter-claims between the Soviet government and the United States. Coincident with the assignment, the U.S. President
recognized the Soviet Government and normal diplomatic relations were established between the two governments.
Upon demand duly made by the United States, the executors of Belmont’s will failed and refused to pay the sum of money
deposited by the Russian corporation with Belmont. The United States thus filed a suit in a federal district court to recover the sum
of money. The court below held that the situs of the bank deposit was within the State of New York and not within Soviet territory.
Thus, the nationalization decree, if enforced, would amount to an act of confiscation which was contrary to the controlling public
policy of New York. The U.S. Supreme Court, however, held that no state policy could prevail against the Litvinov Assignment.52 It
ruled as follows:
"The assignment and the agreements in connection therewith did not, as in the case of treaties, as that term is used in the treaty
making clause of the Constitution (Sec. 2, Art. 2), require the advice and consent of the Senate.
A treaty signifies "a compact made between two or more independent nations with a view to the public welfare." B. Altman & Co. v.
United States, 224 U.S. 583, 600, 56 L. ed. 894, 910, 32 S. Ct. 593. But an international compact, as this was, is not always a treaty
which requires the participation of the Senate. There are many such compacts, of which a protocol, a modus vivendi, a postal
convention, and agreements like that now under consideration are illustrations." (emphasis supplied)
On the supremacy of executive agreements over state law, it ruled as follows:
"Plainly, the external powers of the United States are to be exercised without regard to state laws or policies. The supremacy of a
treaty in this respect has been recognized from the beginning. Mr. Madison, in the Virginia Convention, said that if a treaty does not
supersede existing state laws, as far as they contravene its operation, the treaty would be ineffective. "To counter-act it by the
supremacy of the state laws, would bring on the Union the just charge of national perfidy, and involve us in war." 3 Elliot, Debates,
515. . . And while this rule in respect of treaties is established by the express language of cl. 2, Art. 6, of the Constitution, the same
rule would result in the case of all international compacts and agreements from the very fact that complete power over
international affairs is in the national government and is not and cannot be subjected to any curtailment or interference on the part
of the several states." (emphasis supplied)
The other case, United States v. Pink,55 likewise involved the Litvinov Assignment. The U.S. Supreme Court here reiterated its ruling
in the Belmont case and held that the Litvinov Assignment was an international compact or agreement having similar dignity as a
treaty under the supremacy clause of the U.S. Constitution.
While adherents of sole executive agreements usually point to these two cases as bearing judicial imprimatur of sole executive
agreements, the validity of sole executive agreements seems to have been initially dealt with by the U.S. Supreme Court in 1933 in
Monaco v. Mississippi wherein Chief Justice Hughes stated that, "(t)he National Government, by virtue of its control of our foreign
relations is entitled to employ the resources of diplomatic negotiations and to effect such an international settlement as may be
found to be appropriate, through treaty, agreement of arbitration, or otherwise."
Subsequent to the Belmont and Pink cases, the U.S. Supreme Court once again upheld the validity of a sole executive agreement in
Dames & Moore v. Regan.58 This case involved the Algiers Accord, an executive agreement negotiated and concluded by President
Carter and confirmed by President Reagan to resolve the Iran Hostage Crisis in 1981. That agreement provided, among others, that
the United States and Iran agreed to cancel certain claims between them and to establish a special tribunal to resolve other claims,
including those by U.S. nationals against Iran. The United States also agreed to close its courts to those claims, as well as to suits by
U.S. citizens against the government of Iran for recovery of damages arising from the Hostage Crisis. Although the agreement was
entered into by the President pursuant to Congressional authorization, the Court found that the President’s action with regard to
claims was not so authorized. Nevertheless, the U.S. Supreme Court, noting the power of presidents in foreign affairs which includes
the power to settle claims, as well as Congressional acquiescence to such practice, upheld the validity of the Algiers Accord.
Upon the other hand, those opposed to sole executive agreements argue that the pronouncements of the Court in the Belmont and
Pink cases mean that sole executive agreements override state legislation only when founded upon the President’s constitutional
power to recognize foreign governments.
While treaties and sole executive agreements have the same legal effect on state law, sole executive agreements pale in comparison
to treaties when pitted against prior inconsistent acts of Congress. The U.S. Supreme Court has long ago declared that the
Constitution mandates that a treaty and an act of legislation are both "supreme law of the land." As such, no supreme efficacy is
given to one over the other. If the two relate to the same subject matter and are inconsistent, the one later in date will prevail,
provided the treaty is self-executing,60 i.e., "whenever it operates of itself without aid of legislation." In The Cherokee Tobacco
(Boudinot v. United States), the U.S. Supreme Court also held that where there is repugnance between a treaty and an Act of
Congress, "(a) treaty may supersede a prior Act of Congress . . . and an Act of Congress may supersede a prior treaty. . . ."63 Settled
is the rule, therefore, that a treaty supersedes an earlier repugnant Act of Congress, and an Act of Congress supersedes an earlier
contradictory treaty. As a corollary, a treaty, being placed on the same footing as an act of legislation, can repeal or modify a prior
inconsistent treaty.
In the case of sole executive agreements, commentators have been in general agreement that unlike treaties, sole executive
agreements cannot prevail over prior inconsistent federal legislation. Even proponents of sole executive agreements admit that
while a self-executing treaty can supersede a prior inconsistent statute, it is very doubtful whether a sole executive agreement, in
the absence of appropriate legislation, will be given similar effect.66 Wallace McClure, a leading proponent of the interchangeability
of treaties and executive agreements, opined that it would be contrary to "the entire tenor of the Constitution" for sole executive
agreements to supersede federal law.67 The Restatement (Third) of the Foreign Relations Law of the United States postulates that a
sole executive agreement could prevail at least over state law, and (only) possibly federal law without implementing legislation.68
Myer S. McDougal and Asher Lans who are staunch advocates of executive agreements also concede that sole executive agreements
will not ordinarily be valid if repugnant to existing legislation.
In United States v. Guy W. Capps, Inc.,70 a leading lower court decision discussing the issue of supremacy of executive agreements
over federal legislation, the Fourth Circuit held that, "the executive agreement was void because it was not authorized by Congress
and contravened provisions of a statute dealing with the very matter to which it related..." The U.S. Supreme Court itself has
"intimated that the President might act in external affairs without congressional authority, but not that he might act contrary to an
Act of Congress." The reason for this is that the U.S. President’s power to enter into international agreements derives from his
position as Chief Executive. By Sec. 7, Art. 1 of the U.S. Constitution, the president does not have power to repeal existing federal
laws. Consequently, he cannot make an indirect repeal by means of a sole executive agreement.
On the other side of the coin, it is argued, that when the U.S. President enters into a sole executive agreement pursuant to his
exclusive presidential authority in the field of foreign relations, such agreement may prevail over prior inconsistent federal
legislation. In this situation, the doctrine of separation of powers may permit the U.S. President to disregard the prior inconsistent
Act of Congress as an "unconstitutional invasion of his power." However, aside from lacking firm legal support, this view has to
contend with the problem of determining which powers are exclusively executive and which powers overlap with the powers of
Congress.
Again, although it is doubtful whether sole executive agreements can supersede prior inconsistent federal legislation, proponents of
sole executive agreements interpret the Pink case to mean that sole executive agreements are on equal footing with a treaty, having
been accorded the status of "law of the land" under the supremacy clause and the Litvinov Assignment having been recognized to
have similar dignity as a treaty. As such, it is opined that a sole executive agreement may supersede a prior inconsistent treaty.
Treaties of the United States have in fact been terminated on several occasions by the President on his own authority. President
Roosevelt terminated at least two treaties under his independent constitutional powers: the extradition treaty with Greece, in 1933,
and the Treaty of Commerce and Navigation with Japan, in 1939. That sole executive agreements may repeal or terminate a treaty is
impliedly recognized in Charlton v. Kelly80 as follows: "The executive department having thus elected to waive any right to free itself
from the obligation [of the treaty], it is the plain duty of the court to recognize the obligation.
As against the U.S. Constitution, treaties and sole executive agreements are in equal footing as they are subject to the same
limitations. As early as 1870, the U.S. Supreme Court declared that, "a treaty cannot change the Constitution or be held valid if it be
in violation of that instrument." In Missouri v. Holland, it was held that treaties must not violate the Constitution. The U.S. Supreme
Court also discussed the constitutionally implied limitations on the treaty making power in Reid v. Covert, where Justice Black stated
that "(n)o agreement with a foreign nation can confer power on the Congress, or any other branch of Government, which is free
from the restraints of the Constitution." He concluded that the U.S. Constitution provides limits to the acts of the president, the joint
action of the president and the Senate, and consequently limits the treaty making power.
There is no dispute that the constitutional limitations relating to treaties also apply to sole executive agreements. It is well-settled
that the due process clause of the Fifth Amendment and other substantive provisions of the U.S. Constitution constitute limitations
on both treaties and executive agreements.88 Numerous decisions have also held that both treaties and sole executive agreements
cannot contravene private rights protected by the U.S. Constitution.
In conclusion, after a macro view of the landscape of U.S. foreign relations vis-a-vis U.S. constitutional law, with special attention on
the legal status of sole executive agreements, I respectfully submit that the Court will be standing on unstable ground if it places a
sole executive agreement like the VFA on the same constitutional plateau as a treaty. Questions remain and the debate continues on
the constitutional basis as well as the legal effects of sole executive agreements under U.S. law. The observation of Louis Henkin, a
noted international and U.S. constitutional law scholar, captures the sentiments of the framers of the Philippine Constitution and of
the Filipinos in crafting Sec. 25, Art. XVIII of the 1987 Constitution -- "(o)ften the treaty process will be used at the insistence of other
parties to an agreement because they believe that a treaty has greater ‘dignity’ than an executive agreement, because its
constitutional effectiveness is beyond doubt, because a treaty will ‘commit’ the Senate and the people of the United States and
make its subsequent abrogation or violation less likely."
With the cloud of uncertainty still hanging on the exact legal force of sole executive agreements under U.S. constitutional law, this
Court must strike a blow for the sovereignty of our country by drawing a bright line between the dignity and status of a treaty in
contrast with a sole executive agreement. However we may wish it, the VFA, as a sole executive agreement, cannot climb to the
same lofty height that the dignity of a treaty can reach. Consequently, it falls short of the requirement set by Sec. 25, Art. XVIII of the
1987 Constitution that the agreement allowing the presence of foreign military troops on Philippine soil must be "recognized as a
treaty by the other contracting state."
I vote to grant the petitions.
x----------------------------------------------------------------------------------------------------------------------------------------------------------------------------x
G.R. No. 183591 October 14, 2008
THE PROVINCE OF NORTH COTABATO, duly represented by GOVERNOR JESUS SACDALAN and/or VICE-GOVERNOR EMMANUEL
PIÑOL, for and in his own behalf, petitioners, vs. THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON
ANCESTRAL DOMAIN (GRP), represented by SEC. RODOLFO GARCIA, ATTY. LEAH ARMAMENTO, ATTY. SEDFREY CANDELARIA,
MARK RYAN SULLIVAN and/or GEN. HERMOGENES ESPERON, JR., the latter in his capacity as the present and duly-appointed
Presidential Adviser on the Peace Process (OPAPP) or the so-called Office of the Presidential Adviser on the Peace Process,
respondents.
x--------------------------------------------x
G.R. No. 183752 October 14, 2008
CITY GOVERNMENT OF ZAMBOANGA, as represented by HON. CELSO L. LOBREGAT, City Mayor of Zamboanga, and in his personal
capacity as resident of the City of Zamboanga, Rep. MA. ISABELLE G. CLIMACO, District 1, and Rep. ERICO BASILIO A. FABIAN,
District 2, City of Zamboanga, petitioners, vs. THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE NEGOTIATING
PANEL (GRP), as represented by RODOLFO C. GARCIA, LEAH ARMAMENTO, SEDFREY CANDELARIA, MARK RYAN SULLIVAN and
HERMOGENES ESPERON, in his capacity as the Presidential Adviser on Peace Process, respondents.
x--------------------------------------------x
G.R. No. 183893 October 14, 2008
THE CITY OF ILIGAN, duly represented by CITY MAYOR LAWRENCE LLUCH CRUZ, petitioner, vs. THE GOVERNMENT OF THE
REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP), represented by SEC. RODOLFO GARCIA, ATTY. LEAH
ARMAMENTO, ATTY. SEDFREY CANDELARIA, MARK RYAN SULLIVAN; GEN. HERMOGENES ESPERON, JR., in his capacity as the
present and duly appointed Presidential Adviser on the Peace Process; and/or SEC. EDUARDO ERMITA, in his capacity as Executive
Secretary. respondents.
x--------------------------------------------x
G.R. No. 183951 October 14, 2008
THE PROVINCIAL GOVERNMENT OF ZAMBOANGA DEL NORTE, as represented by HON. ROLANDO E. YEBES, in his capacity as
Provincial Governor, HON. FRANCIS H. OLVIS, in his capacity as Vice-Governor and Presiding Officer of the Sangguniang
Panlalawigan, HON. CECILIA JALOSJOS CARREON, Congresswoman, 1st Congressional District, HON. CESAR G. JALOSJOS,
Congressman, 3rd Congressional District, and Members of the Sangguniang Panlalawigan of the Province of Zamboanga del Norte,
namely, HON. SETH FREDERICK P. JALOSJOS, HON. FERNANDO R. CABIGON, JR., HON. ULDARICO M. MEJORADA II, HON. EDIONAR
M. ZAMORAS, HON. EDGAR J. BAGUIO, HON. CEDRIC L. ADRIATICO, HON. FELIXBERTO C. BOLANDO, HON. JOSEPH BRENDO C.
AJERO, HON. NORBIDEIRI B. EDDING, HON. ANECITO S. DARUNDAY, HON. ANGELICA J. CARREON and HON. LUZVIMINDA E.
TORRINO, petitioners, vs. THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE NEGOTIATING PANEL [GRP], as
represented by HON. RODOLFO C. GARCIA and HON. HERMOGENES ESPERON, in his capacity as the Presidential Adviser of Peace
Process, respondents.
x--------------------------------------------x
G.R. No. 183962 October 14, 2008
ERNESTO M. MACEDA, JEJOMAR C. BINAY, and AQUILINO L. PIMENTEL III, petitioners, vs. THE GOVERNMENT OF THE REPUBLIC OF
THE PHILIPPINES PEACE NEGOTIATING PANEL, represented by its Chairman RODOLFO C. GARCIA, and the MORO ISLAMIC
LIBERATION FRONT PEACE NEGOTIATING PANEL, represented by its Chairman MOHAGHER IQBAL, respondents.
x--------------------------------------------x
FRANKLIN M. DRILON and ADEL ABBAS TAMANO, petitioners-in-intervention.
x--------------------------------------------x
SEN. MANUEL A. ROXAS, petitioners-in-intervention.
x--------------------------------------------x
MUNICIPALITY OF LINAMON duly represented by its Municipal Mayor NOEL N. DEANO, petitioners-in-intervention,
x--------------------------------------------x
THE CITY OF ISABELA, BASILAN PROVINCE, represented by MAYOR CHERRYLYN P. SANTOS-AKBAR, petitioners-in-intervention.
x--------------------------------------------x
THE PROVINCE OF SULTAN KUDARAT, rep. by HON. SUHARTO T. MANGUDADATU, in his capacity as Provincial Governor and a
resident of the Province of Sultan Kudarat, petitioner-in-intervention.
x-------------------------------------------x
RUY ELIAS LOPEZ, for and in his own behalf and on behalf of Indigenous Peoples in Mindanao Not Belonging to the MILF, petitioner-
in-intervention.
x--------------------------------------------x
CARLO B. GOMEZ, GERARDO S. DILIG, NESARIO G. AWAT, JOSELITO C. ALISUAG and RICHALEX G. JAGMIS, as citizens and residents of
Palawan, petitioners-in-intervention.
x--------------------------------------------x
MARINO RIDAO and KISIN BUXANI, petitioners-in-intervention.
x--------------------------------------------x
MUSLIM LEGAL ASSISTANCE FOUNDATION, INC (MUSLAF), respondent-in-intervention.
x--------------------------------------------x
MUSLIM MULTI-SECTORAL MOVEMENT FOR PEACE & DEVELOPMENT (MMMPD), respondent-in-intervention.
x--------------------------------------------x
DECISION
CARPIO MORALES, J.:
Subject of these consolidated cases is the extent of the powers of the President in pursuing the peace process. While the facts
surrounding this controversy center on the armed conflict in Mindanao between the government and the Moro Islamic Liberation
Front (MILF), the legal issue involved has a bearing on all areas in the country where there has been a long-standing armed conflict.
Yet again, the Court is tasked to perform a delicate balancing act. It must uncompromisingly delineate the bounds within which the
President may lawfully exercise her discretion, but it must do so in strict adherence to the Constitution, lest its ruling unduly restricts
the freedom of action vested by that same Constitution in the Chief Executive precisely to enable her to pursue the peace process
effectively.
I. FACTUAL ANTECEDENTS OF THE PETITIONS
On August 5, 2008, the Government of the Republic of the Philippines (GRP) and the MILF, through the Chairpersons of their
respective peace negotiating panels, were scheduled to sign a Memorandum of Agreement on the Ancestral Domain (MOA-AD)
Aspect of the GRP-MILF Tripoli Agreement on Peace of 2001 in Kuala Lumpur, Malaysia.
The MILF is a rebel group which was established in March 1984 when, under the leadership of the late Salamat Hashim, it splintered
from the Moro National Liberation Front (MNLF) then headed by Nur Misuari, on the ground, among others, of what Salamat
perceived to be the manipulation of the MNLF away from an Islamic basis towards Marxist-Maoist orientations.
The signing of the MOA-AD between the GRP and the MILF was not to materialize, however, for upon motion of petitioners,
specifically those who filed their cases before the scheduled signing of the MOA-AD, this Court issued a Temporary Restraining Order
enjoining the GRP from signing the same.
The MOA-AD was preceded by a long process of negotiation and the concluding of several prior agreements between the two
parties beginning in 1996, when the GRP-MILF peace negotiations began. On July 18, 1997, the GRP and MILF Peace Panels signed
the Agreement on General Cessation of Hostilities. The following year, they signed the General Framework of Agreement of Intent
on August 27, 1998.
The Solicitor General, who represents respondents, summarizes the MOA-AD by stating that the same contained, among others, the
commitment of the parties to pursue peace negotiations, protect and respect human rights, negotiate with sincerity in the
resolution and pacific settlement of the conflict, and refrain from the use of threat or force to attain undue advantage while the
peace negotiations on the substantive agenda are on-going.
Early on, however, it was evident that there was not going to be any smooth sailing in the GRP-MILF peace process. Towards the end
of 1999 up to early 2000, the MILF attacked a number of municipalities in Central Mindanao and, in March 2000, it took control of
the town hall of Kauswagan, Lanao del Norte. In response, then President Joseph Estrada declared and carried out an "all-out-war"
against the MILF
When President Gloria Macapagal-Arroyo assumed office, the military offensive against the MILF was suspended and the
government sought a resumption of the peace talks. The MILF, according to a leading MILF member, initially responded with deep
reservation, but when President Arroyo asked the Government of Malaysia through Prime Minister Mahathir Mohammad to help
convince the MILF to return to the negotiating table, the MILF convened its Central Committee to seriously discuss the matter and,
eventually, decided to meet with the GRP.
The parties met in Kuala Lumpur on March 24, 2001, with the talks being facilitated by the Malaysian government, the parties
signing on the same date the Agreement on the General Framework for the Resumption of Peace Talks Between the GRP and the
MILF. The MILF thereafter suspended all its military actions.
Formal peace talks between the parties were held in Tripoli, Libya from June 20-22, 2001, the outcome of which was the GRP-MILF
Tripoli Agreement on Peace (Tripoli Agreement 2001) containing the basic principles and agenda on the following aspects of the
negotiation: Security Aspect, Rehabilitation Aspect, and Ancestral Domain Aspect. With regard to the Ancestral Domain Aspect, the
parties in Tripoli Agreement 2001 simply agreed "that the same be discussed further by the Parties in their next meeting."
A second round of peace talks was held in Cyberjaya, Malaysia on August 5-7, 2001 which ended with the signing of the
Implementing Guidelines on the Security Aspect of the Tripoli Agreement 2001 leading to a ceasefire status between the parties.
This was followed by the Implementing Guidelines on the Humanitarian Rehabilitation and Development Aspects of the Tripoli
Agreement 2001, which was signed on May 7, 2002 at Putrajaya, Malaysia. Nonetheless, there were many incidence of violence
between government forces and the MILF from 2002 to 2003.
Meanwhile, then MILF Chairman Salamat Hashim passed away on July 13, 2003 and he was replaced by Al Haj Murad, who was then
the chief peace negotiator of the MILF. Murad's position as chief peace negotiator was taken over by Mohagher Iqbal.
In 2005, several exploratory talks were held between the parties in Kuala Lumpur, eventually leading to the crafting of the draft
MOA-AD in its final form, which, as mentioned, was set to be signed last August 5, 2008.
II. STATEMENT OF THE PROCEEDINGS
Before the Court is what is perhaps the most contentious "consensus" ever embodied in an instrument - the MOA-AD which is
assailed principally by the present petitions bearing docket numbers 183591, 183752, 183893, 183951 and 183962.
Commonly impleaded as respondents are the GRP Peace Panel on Ancestral Domain7 and the Presidential Adviser on the Peace
Process (PAPP) Hermogenes Esperon, Jr.
On July 23, 2008, the Province of North Cotabato8 and Vice-Governor Emmanuel Piñol filed a petition, docketed as G.R. No. 183591,
for Mandamus and Prohibition with Prayer for the Issuance of Writ of Preliminary Injunction and Temporary Restraining Order.
Invoking the right to information on matters of public concern, petitioners seek to compel respondents to disclose and furnish them
the complete and official copies of the MOA-AD including its attachments, and to prohibit the slated signing of the MOA-AD, pending
the disclosure of the contents of the MOA-AD and the holding of a public consultation thereon. Supplementarily, petitioners pray
that the MOA-AD be declared unconstitutional.
This initial petition was followed by another one, docketed as G.R. No. 183752, also for Mandamus and Prohibition11 filed by the
City of Zamboanga, Mayor Celso Lobregat, Rep. Ma. Isabelle Climaco and Rep. Erico Basilio Fabian who likewise pray for similar
injunctive reliefs. Petitioners herein moreover pray that the City of Zamboanga be excluded from the Bangsamoro Homeland and/or
Bangsamoro Juridical Entity and, in the alternative, that the MOA-AD be declared null and void.
By Resolution of August 4, 2008, the Court issued a Temporary Restraining Order commanding and directing public respondents and
their agents to cease and desist from formally signing the MOA-AD. The Court also required the Solicitor General to submit to the
Court and petitioners the official copy of the final draft of the MOA-AD, to which she complied.
Meanwhile, the City of Iligan16 filed a petition for Injunction and/or Declaratory Relief, docketed as G.R. No. 183893, praying that
respondents be enjoined from signing the MOA-AD or, if the same had already been signed, from implementing the same, and that
the MOA-AD be declared unconstitutional. Petitioners herein additionally implead Executive Secretary Eduardo Ermita as
respondent.
The Province of Zamboanga del Norte,17 Governor Rolando Yebes, Vice-Governor Francis Olvis, Rep. Cecilia Jalosjos-Carreon, Rep.
Cesar Jalosjos, and the members18 of the Sangguniang Panlalawigan of Zamboanga del Norte filed on August 15, 2008 a petition for
Certiorari, Mandamus and Prohibition,19 docketed as G.R. No. 183951. They pray, inter alia, that the MOA-AD be declared null and
void and without operative effect, and that respondents be enjoined from executing the MOA-AD.
On August 19, 2008, Ernesto Maceda, Jejomar Binay, and Aquilino Pimentel III filed a petition for Prohibition,20 docketed as G.R. No.
183962, praying for a judgment prohibiting and permanently enjoining respondents from formally signing and executing the MOA-
AD and or any other agreement derived therefrom or similar thereto, and nullifying the MOA-AD for being unconstitutional and
illegal. Petitioners herein additionally implead as respondent the MILF Peace Negotiating Panel represented by its Chairman
Mohagher Iqbal.
Various parties moved to intervene and were granted leave of court to file their petitions-/comments-in-intervention. Petitioners-in-
Intervention include Senator Manuel A. Roxas, former Senate President Franklin Drilon and Atty. Adel Tamano, the City of Isabela21
and Mayor Cherrylyn Santos-Akbar, the Province of Sultan Kudarat22 and Gov. Suharto Mangudadatu, the Municipality of Linamon
in Lanao del Norte,23 Ruy Elias Lopez of Davao City and of the Bagobo tribe, Sangguniang Panlungsod member Marino Ridao and
businessman Kisin Buxani, both of Cotabato City; and lawyers Carlo Gomez, Gerardo Dilig, Nesario Awat, Joselito Alisuag, Richalex
Jagmis, all of Palawan City. The Muslim Legal Assistance Foundation, Inc. (Muslaf) and the Muslim Multi-Sectoral Movement for
Peace and Development (MMMPD) filed their respective Comments-in-Intervention.
By subsequent Resolutions, the Court ordered the consolidation of the petitions. Respondents filed Comments on the petitions,
while some of petitioners submitted their respective Replies.
Respondents, by Manifestation and Motion of August 19, 2008, stated that the Executive Department shall thoroughly review the
MOA-AD and pursue further negotiations to address the issues hurled against it, and thus moved to dismiss the cases. In the
succeeding exchange of pleadings, respondents' motion was met with vigorous opposition from petitioners.
The cases were heard on oral argument on August 15, 22 and 29, 2008 that tackled the following principal issues:
1. Whether the petitions have become moot and academic
(i) insofar as the mandamus aspect is concerned, in view of the disclosure of official copies of the final draft of the Memorandum of
Agreement (MOA); and
(ii) insofar as the prohibition aspect involving the Local Government Units is concerned, if it is considered that consultation has
become fait accompli with the finalization of the draft;
2. Whether the constitutionality and the legality of the MOA is ripe for adjudication;
3. Whether respondent Government of the Republic of the Philippines Peace Panel committed grave abuse of discretion amounting
to lack or excess of jurisdiction when it negotiated and initiated the MOA vis-à-vis ISSUES Nos. 4 and 5;
4. Whether there is a violation of the people's right to information on matters of public concern (1987 Constitution, Article III, Sec. 7)
under a state policy of full disclosure of all its transactions involving public interest (1987 Constitution, Article II, Sec. 28) including
public consultation under Republic Act No. 7160 (LOCAL GOVERNMENT CODE OF 1991)[;]
If it is in the affirmative, whether prohibition under Rule 65 of the 1997 Rules of Civil Procedure is an appropriate remedy;
5. Whether by signing the MOA, the Government of the Republic of the Philippines would be BINDING itself
a) to create and recognize the Bangsamoro Juridical Entity (BJE) as a separate state, or a juridical, territorial or political subdivision
not recognized by law;
b) to revise or amend the Constitution and existing laws to conform to the MOA;
c) to concede to or recognize the claim of the Moro Islamic Liberation Front for ancestral domain in violation of Republic Act No.
8371 (THE INDIGENOUS PEOPLES RIGHTS ACT OF 1997), particularly Section 3(g) & Chapter VII (DELINEATION, RECOGNITION OF
ANCESTRAL DOMAINS)[;]
If in the affirmative, whether the Executive Branch has the authority to so bind the Government of the Republic of the Philippines;
6. Whether the inclusion/exclusion of the Province of North Cotabato, Cities of Zamboanga, Iligan and Isabela, and the Municipality
of Linamon, Lanao del Norte in/from the areas covered by the projected Bangsamoro Homeland is a justiciable question; and
7. Whether desistance from signing the MOA derogates any prior valid commitments of the Government of the Republic of the
Philippines.
The Court, thereafter, ordered the parties to submit their respective Memoranda. Most of the parties submitted their memoranda
on time.
III. OVERVIEW OF THE MOA-AD
As a necessary backdrop to the consideration of the objections raised in the subject five petitions and six petitions-in-intervention
against the MOA-AD, as well as the two comments-in-intervention in favor of the MOA-AD, the Court takes an overview of the MOA.
The MOA-AD identifies the Parties to it as the GRP and the MILF.
Under the heading "Terms of Reference" (TOR), the MOA-AD includes not only four earlier agreements between the GRP and MILF,
but also two agreements between the GRP and the MNLF: the 1976 Tripoli Agreement, and the Final Peace Agreement on the
Implementation of the 1976 Tripoli Agreement, signed on September 2, 1996 during the administration of President Fidel Ramos.
The MOA-AD also identifies as TOR two local statutes - the organic act for the Autonomous Region in Muslim Mindanao (ARMM)25
and the Indigenous Peoples Rights Act (IPRA),26 and several international law instruments - the ILO Convention No. 169 Concerning
Indigenous and Tribal Peoples in Independent Countries in relation to the UN Declaration on the Rights of the Indigenous Peoples,
and the UN Charter, among others.
The MOA-AD includes as a final TOR the generic category of "compact rights entrenchment emanating from the regime of dar-ul-
mua'hada (or territory under compact) and dar-ul-sulh (or territory under peace agreement) that partakes the nature of a treaty
device."
During the height of the Muslim Empire, early Muslim jurists tended to see the world through a simple dichotomy: there was the
dar-ul-Islam (the Abode of Islam) and dar-ul-harb (the Abode of War). The first referred to those lands where Islamic laws held sway,
while the second denoted those lands where Muslims were persecuted or where Muslim laws were outlawed or ineffective.27 This
way of viewing the world, however, became more complex through the centuries as the Islamic world became part of the
international community of nations.
As Muslim States entered into treaties with their neighbors, even with distant States and inter-governmental organizations, the
classical division of the world into dar-ul-Islam and dar-ul-harb eventually lost its meaning. New terms were drawn up to describe
novel ways of perceiving non-Muslim territories. For instance, areas like dar-ul-mua'hada (land of compact) and dar-ul-sulh (land of
treaty) referred to countries which, though under a secular regime, maintained peaceful and cooperative relations with Muslim
States, having been bound to each other by treaty or agreement. Dar-ul-aman (land of order), on the other hand, referred to
countries which, though not bound by treaty with Muslim States, maintained freedom of religion for Muslims.
It thus appears that the "compact rights entrenchment" emanating from the regime of dar-ul-mua'hada and dar-ul-sulh simply refers
to all other agreements between the MILF and the Philippine government - the Philippines being the land of compact and peace
agreement - that partake of the nature of a treaty device, "treaty" being broadly defined as "any solemn agreement in writing that
sets out understandings, obligations, and benefits for both parties which provides for a framework that elaborates the principles
declared in the [MOA-AD]."
The MOA-AD states that the Parties "HAVE AGREED AND ACKNOWLEDGED AS FOLLOWS," and starts with its main body.
The main body of the MOA-AD is divided into four strands, namely, Concepts and Principles, Territory, Resources, and Governance.
A. CONCEPTS AND PRINCIPLES
This strand begins with the statement that it is "the birthright of all Moros and all Indigenous peoples of Mindanao to identify
themselves and be accepted as ‘Bangsamoros.'" It defines "Bangsamoro people" as the natives or original inhabitants of Mindanao
and its adjacent islands including Palawan and the Sulu archipelago at the time of conquest or colonization, and their descendants
whether mixed or of full blood, including their spouses.
Thus, the concept of "Bangsamoro," as defined in this strand of the MOA-AD, includes not only "Moros" as traditionally understood
even by Muslims, but all indigenous peoples of Mindanao and its adjacent islands. The MOA-AD adds that the freedom of choice of
indigenous peoples shall be respected. What this freedom of choice consists in has not been specifically defined.
The MOA-AD proceeds to refer to the "Bangsamoro homeland," the ownership of which is vested exclusively in the Bangsamoro
people by virtue of their prior rights of occupation. Both parties to the MOA-AD acknowledge that ancestral domain does not form
part of the public domain.
The Bangsamoro people are acknowledged as having the right to self-governance, which right is said to be rooted on ancestral
territoriality exercised originally under the suzerain authority of their sultanates and the Pat a Pangampong ku Ranaw. The
sultanates were described as states or "karajaan/kadatuan" resembling a body politic endowed with all the elements of a nation-
state in the modern sense.
The MOA-AD thus grounds the right to self-governance of the Bangsamoro people on the past suzerain authority of the sultanates.
As gathered, the territory defined as the Bangsamoro homeland was ruled by several sultanates and, specifically in the case of the
Maranao, by the Pat a Pangampong ku Ranaw, a confederation of independent principalities (pangampong) each ruled by datus and
sultans, none of whom was supreme over the others.
The MOA-AD goes on to describe the Bangsamoro people as "the ‘First Nation' with defined territory and with a system of
government having entered into treaties of amity and commerce with foreign nations."
The term "First Nation" is of Canadian origin referring to the indigenous peoples of that territory, particularly those known as
Indians. In Canada, each of these indigenous peoples is equally entitled to be called "First Nation," hence, all of them are usually
described collectively by the plural "First Nations." To that extent, the MOA-AD, by identifying the Bangsamoro people as "the First
Nation" - suggesting its exclusive entitlement to that designation - departs from the Canadian usage of the term.
The MOA-AD then mentions for the first time the "Bangsamoro Juridical Entity" (BJE) to which it grants the authority and jurisdiction
over the Ancestral Domain and Ancestral Lands of the Bangsamoro.
B. TERRITORY
The territory of the Bangsamoro homeland is described as the land mass as well as the maritime, terrestrial, fluvial and alluvial
domains, including the aerial domain and the atmospheric space above it, embracing the Mindanao-Sulu-Palawan geographic
region.
More specifically, the core of the BJE is defined as the present geographic area of the ARMM - thus constituting the following areas:
Lanao del Sur, Maguindanao, Sulu, Tawi-Tawi, Basilan, and Marawi City. Significantly, this core also includes certain municipalities of
Lanao del Norte that voted for inclusion in the ARMM in the 2001 plebiscite.
Outside of this core, the BJE is to cover other provinces, cities, municipalities and barangays, which are grouped into two categories,
Category A and Category B. Each of these areas is to be subjected to a plebiscite to be held on different dates, years apart from each
other. Thus, Category A areas are to be subjected to a plebiscite not later than twelve (12) months following the signing of the MOA-
AD.40 Category B areas, also called "Special Intervention Areas," on the other hand, are to be subjected to a plebiscite twenty-five
(25) years from the signing of a separate agreement - the Comprehensive Compact.
The Parties to the MOA-AD stipulate that the BJE shall have jurisdiction over all natural resources within its "internal waters,"
defined as extending fifteen (15) kilometers from the coastline of the BJE area;42 that the BJE shall also have "territorial waters,"
which shall stretch beyond the BJE internal waters up to the baselines of the Republic of the Philippines (RP) south east and south
west of mainland Mindanao; and that within these territorial waters, the BJE and the "Central Government" (used interchangeably
with RP) shall exercise joint jurisdiction, authority and management over all natural resources.43 Notably, the jurisdiction over the
internal waters is not similarly described as "joint."
The MOA-AD further provides for the sharing of minerals on the territorial waters between the Central Government and the BJE, in
favor of the latter, through production sharing and economic cooperation agreement.44 The activities which the Parties are allowed
to conduct on the territorial waters are enumerated, among which are the exploration and utilization of natural resources,
regulation of shipping and fishing activities, and the enforcement of police and safety measures.45 There is no similar provision on
the sharing of minerals and allowed activities with respect to the internal waters of the BJE.
C. RESOURCES
The MOA-AD states that the BJE is free to enter into any economic cooperation and trade relations with foreign countries and shall
have the option to establish trade missions in those countries. Such relationships and understandings, however, are not to include
aggression against the GRP. The BJE may also enter into environmental cooperation agreements.
The external defense of the BJE is to remain the duty and obligation of the Central Government. The Central Government is also
bound to "take necessary steps to ensure the BJE's participation in international meetings and events" like those of the ASEAN and
the specialized agencies of the UN. The BJE is to be entitled to participate in Philippine official missions and delegations for the
negotiation of border agreements or protocols for environmental protection and equitable sharing of incomes and revenues
involving the bodies of water adjacent to or between the islands forming part of the ancestral domain.
With regard to the right of exploring for, producing, and obtaining all potential sources of energy, petroleum, fossil fuel, mineral oil
and natural gas, the jurisdiction and control thereon is to be vested in the BJE "as the party having control within its territorial
jurisdiction." This right carries the proviso that, "in times of national emergency, when public interest so requires," the Central
Government may, for a fixed period and under reasonable terms as may be agreed upon by both Parties, assume or direct the
operation of such resources.
The sharing between the Central Government and the BJE of total production pertaining to natural resources is to be 75:25 in favor
of the BJE.
The MOA-AD provides that legitimate grievances of the Bangsamoro people arising from any unjust dispossession of their territorial
and proprietary rights, customary land tenures, or their marginalization shall be acknowledged. Whenever restoration is no longer
possible, reparation is to be in such form as mutually determined by the Parties.
The BJE may modify or cancel the forest concessions, timber licenses, contracts or agreements, mining concessions, Mineral
Production and Sharing Agreements (MPSA), Industrial Forest Management Agreements (IFMA), and other land tenure instruments
granted by the Philippine Government, including those issued by the present ARMM.
D. GOVERNANCE
The MOA-AD binds the Parties to invite a multinational third-party to observe and monitor the implementation of the
Comprehensive Compact. This compact is to embody the "details for the effective enforcement" and "the mechanisms and
modalities for the actual implementation" of the MOA-AD. The MOA-AD explicitly provides that the participation of the third party
shall not in any way affect the status of the relationship between the Central Government and the BJE.
The "associative" relationship between the Central Government and the BJE
The MOA-AD describes the relationship of the Central Government and the BJE as "associative," characterized by shared authority
and responsibility. And it states that the structure of governance is to be based on executive, legislative, judicial, and administrative
institutions with defined powers and functions in the Comprehensive Compact.
The MOA-AD provides that its provisions requiring "amendments to the existing legal framework" shall take effect upon signing of
the Comprehensive Compact and upon effecting the aforesaid amendments, with due regard to the non-derogation of prior
agreements and within the stipulated timeframe to be contained in the Comprehensive Compact. As will be discussed later, much of
the present controversy hangs on the legality of this provision.
The BJE is granted the power to build, develop and maintain its own institutions inclusive of civil service, electoral, financial and
banking, education, legislation, legal, economic, police and internal security force, judicial system and correctional institutions, the
details of which shall be discussed in the negotiation of the comprehensive compact.
As stated early on, the MOA-AD was set to be signed on August 5, 2008 by Rodolfo Garcia and Mohagher Iqbal, Chairpersons of the
Peace Negotiating Panels of the GRP and the MILF, respectively. Notably, the penultimate paragraph of the MOA-AD identifies the
signatories as "the representatives of the Parties," meaning the GRP and MILF themselves, and not merely of the negotiating
panels.53 In addition, the signature page of the MOA-AD states that it is "WITNESSED BY" Datuk Othman Bin Abd Razak, Special
Adviser to the Prime Minister of Malaysia, "ENDORSED BY" Ambassador Sayed Elmasry, Adviser to Organization of the Islamic
Conference (OIC) Secretary General and Special Envoy for Peace Process in Southern Philippines, and SIGNED "IN THE PRESENCE OF"
Dr. Albert G. Romulo, Secretary of Foreign Affairs of RP and Dato' Seri Utama Dr. Rais Bin Yatim, Minister of Foreign Affairs, Malaysia,
all of whom were scheduled to sign the Agreement last August 5, 2008.
Annexed to the MOA-AD are two documents containing the respective lists cum maps of the provinces, municipalities, and
barangays under Categories A and B earlier mentioned in the discussion on the strand on TERRITORY.
IV. PROCEDURAL ISSUES
A. RIPENESS
The power of judicial review is limited to actual cases or controversies. Courts decline to issue advisory opinions or to resolve
hypothetical or feigned problems, or mere academic questions. The limitation of the power of judicial review to actual cases and
controversies defines the role assigned to the judiciary in a tripartite allocation of power, to assure that the courts will not intrude
into areas committed to the other branches of government.
An actual case or controversy involves a conflict of legal rights, an assertion of opposite legal claims, susceptible of judicial resolution
as distinguished from a hypothetical or abstract difference or dispute. There must be a contrariety of legal rights that can be
interpreted and enforced on the basis of existing law and jurisprudence. The Court can decide the constitutionality of an act or
treaty only when a proper case between opposing parties is submitted for judicial determination.
Related to the requirement of an actual case or controversy is the requirement of ripeness. A question is ripe for adjudication when
the act being challenged has had a direct adverse effect on the individual challenging it. For a case to be considered ripe for
adjudication, it is a prerequisite that something had then been accomplished or performed by either branch before a court may
come into the picture, and the petitioner must allege the existence of an immediate or threatened injury to itself as a result of the
challenged action. He must show that he has sustained or is immediately in danger of sustaining some direct injury as a result of the
act complained of.
The Solicitor General argues that there is no justiciable controversy that is ripe for judicial review in the present petitions, reasoning
that
The unsigned MOA-AD is simply a list of consensus points subject to further negotiations and legislative enactments as well as
constitutional processes aimed at attaining a final peaceful agreement. Simply put, the MOA-AD remains to be a proposal that does
not automatically create legally demandable rights and obligations until the list of operative acts required have been duly complied
with. x x x
In the cases at bar, it is respectfully submitted that this Honorable Court has no authority to pass upon issues based on hypothetical
or feigned constitutional problems or interests with no concrete bases. Considering the preliminary character of the MOA-AD, there
are no concrete acts that could possibly violate petitioners' and intervenors' rights since the acts complained of are mere
contemplated steps toward the formulation of a final peace agreement. Plainly, petitioners and intervenors' perceived injury, if at
all, is merely imaginary and illusory apart from being unfounded and based on mere conjectures. (Underscoring supplied)
The Solicitor General cites the following provisions of the MOA-AD:
TERRITORYx x x x
2. Toward this end, the Parties enter into the following stipulations:x x x x
d. Without derogating from the requirements of prior agreements, the Government stipulates to conduct and deliver, using all
possible legal measures, within twelve (12) months following the signing of the MOA-AD, a plebiscite covering the areas as
enumerated in the list and depicted in the map as Category A attached herein (the "Annex"). The Annex constitutes an integral part
of this framework agreement. Toward this end, the Parties shall endeavor to complete the negotiations and resolve all outstanding
issues on the Comprehensive Compact within fifteen (15) months from the signing of the MOA-AD.
x x x xGOVERNANCE x x x x
7. The Parties agree that mechanisms and modalities for the actual implementation of this MOA-AD shall be spelt out in the
Comprehensive Compact to mutually take such steps to enable it to occur effectively.
Any provisions of the MOA-AD requiring amendments to the existing legal framework shall come into force upon the signing of a
Comprehensive Compact and upon effecting the necessary changes to the legal framework with due regard to non-derogation of
prior agreements and within the stipulated timeframe to be contained in the Comprehensive Compact. (Underscoring supplied)
The Solicitor General's arguments fail to persuade.
Concrete acts under the MOA-AD are not necessary to render the present controversy ripe. In Pimentel, Jr. v. Aguirre, this Court
held:
x x x [B]y the mere enactment of the questioned law or the approval of the challenged action, the dispute is said to have ripened
into a judicial controversy even without any other overt act. Indeed, even a singular violation of the Constitution and/or the law is
enough to awaken judicial duty.x x x x
By the same token, when an act of the President, who in our constitutional scheme is a coequal of Congress, is seriously alleged to
have infringed the Constitution and the laws x x x settling the dispute becomes the duty and the responsibility of the courts.
In Santa Fe Independent School District v. Doe,67 the United States Supreme Court held that the challenge to the constitutionality of
the school's policy allowing student-led prayers and speeches before games was ripe for adjudication, even if no public prayer had
yet been led under the policy, because the policy was being challenged as unconstitutional on its face.
That the law or act in question is not yet effective does not negate ripeness. For example, in New York v. United States,69 decided in
1992, the United States Supreme Court held that the action by the State of New York challenging the provisions of the Low-Level
Radioactive Waste Policy Act was ripe for adjudication even if the questioned provision was not to take effect until January 1, 1996,
because the parties agreed that New York had to take immediate action to avoid the provision's consequences.
The present petitions pray for Certiorari, Prohibition, and Mandamus. Certiorari and Prohibition are remedies granted by law when
any tribunal, board or officer has acted, in the case of certiorari, or is proceeding, in the case of prohibition, without or in excess of
its jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction. Mandamus is a remedy granted by law
when any tribunal, corporation, board, officer or person unlawfully neglects the performance of an act which the law specifically
enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes another from the use or enjoyment of a right or
office to which such other is entitled. Certiorari, Mandamus and Prohibition are appropriate remedies to raise constitutional issues
and to review and/or prohibit/nullify, when proper, acts of legislative and executive officials.
The authority of the GRP Negotiating Panel is defined by Executive Order No. 3 (E.O. No. 3), issued on February 28, 2001.75 The said
executive order requires that "[t]he government's policy framework for peace, including the systematic approach and the
administrative structure for carrying out the comprehensive peace process x x x be governed by this Executive Order."
The present petitions allege that respondents GRP Panel and PAPP Esperon drafted the terms of the MOA-AD without consulting the
local government units or communities affected, nor informing them of the proceedings. As will be discussed in greater detail later,
such omission, by itself, constitutes a departure by respondents from their mandate under E.O. No. 3.
Furthermore, the petitions allege that the provisions of the MOA-AD violate the Constitution. The MOA-AD provides that "any
provisions of the MOA-AD requiring amendments to the existing legal framework shall come into force upon the signing of a
Comprehensive Compact and upon effecting the necessary changes to the legal framework," implying an amendment of the
Constitution to accommodate the MOA-AD. This stipulation, in effect, guaranteed to the MILF the amendment of the Constitution.
Such act constitutes another violation of its authority. Again, these points will be discussed in more detail later.
As the petitions allege acts or omissions on the part of respondent that exceed their authority, by violating their duties under E.O.
No. 3 and the provisions of the Constitution and statutes, the petitions make a prima facie case for Certiorari, Prohibition, and
Mandamus, and an actual case or controversy ripe for adjudication exists. When an act of a branch of government is seriously
alleged to have infringed the Constitution, it becomes not only the right but in fact the duty of the judiciary to settle the dispute.
B. LOCUS STANDI
For a party to have locus standi, one must allege "such a personal stake in the outcome of the controversy as to assure that concrete
adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult
constitutional questions."
Because constitutional cases are often public actions in which the relief sought is likely to affect other persons, a preliminary
question frequently arises as to this interest in the constitutional question raised.
When suing as a citizen, the person complaining must allege that he has been or is about to be denied some right or privilege to
which he is lawfully entitled or that he is about to be subjected to some burdens or penalties by reason of the statute or act
complained of. When the issue concerns a public right, it is sufficient that the petitioner is a citizen and has an interest in the
execution of the laws.
For a taxpayer, one is allowed to sue where there is an assertion that public funds are illegally disbursed or deflected to an illegal
purpose, or that there is a wastage of public funds through the enforcement of an invalid or unconstitutional law.82 The Court
retains discretion whether or not to allow a taxpayer's suit.
In the case of a legislator or member of Congress, an act of the Executive that injures the institution of Congress causes a derivative
but nonetheless substantial injury that can be questioned by legislators. A member of the House of Representatives has standing to
maintain inviolate the prerogatives, powers and privileges vested by the Constitution in his office.
An organization may be granted standing to assert the rights of its members, but the mere invocation by the Integrated Bar of the
Philippines or any member of the legal profession of the duty to preserve the rule of law does not suffice to clothe it with standing.
As regards a local government unit (LGU), it can seek relief in order to protect or vindicate an interest of its own, and of the other
LGUs.
Intervenors, meanwhile, may be given legal standing upon showing of facts that satisfy the requirements of the law authorizing
intervention,88 such as a legal interest in the matter in litigation, or in the success of either of the parties.
In any case, the Court has discretion to relax the procedural technicality on locus standi, given the liberal attitude it has exercised,
highlighted in the case of David v. Macapagal-Arroyo,89 where technicalities of procedure were brushed aside, the constitutional
issues raised being of paramount public interest or of transcendental importance deserving the attention of the Court in view of
their seriousness, novelty and weight as precedents.90 The Court's forbearing stance on locus standi on issues involving
constitutional issues has for its purpose the protection of fundamental rights.
In not a few cases, the Court, in keeping with its duty under the Constitution to determine whether the other branches of
government have kept themselves within the limits of the Constitution and the laws and have not abused the discretion given them,
has brushed aside technical rules of procedure.
In the petitions at bar, petitioners Province of North Cotabato (G.R. No. 183591) Province of Zamboanga del Norte (G.R. No.
183951), City of Iligan (G.R. No. 183893) and City of Zamboanga (G.R. No. 183752) and petitioners-in-intervention Province of Sultan
Kudarat, City of Isabela and Municipality of Linamon have locus standi in view of the direct and substantial injury that they, as LGUs,
would suffer as their territories, whether in whole or in part, are to be included in the intended domain of the BJE. These petitioners
allege that they did not vote for their inclusion in the ARMM which would be expanded to form the BJE territory. Petitioners' legal
standing is thus beyond doubt.
In G.R. No. 183962, petitioners Ernesto Maceda, Jejomar Binay and Aquilino Pimentel III would have no standing as citizens and
taxpayers for their failure to specify that they would be denied some right or privilege or there would be wastage of public funds.
The fact that they are a former Senator, an incumbent mayor of Makati City, and a resident of Cagayan de Oro, respectively, is of no
consequence. Considering their invocation of the transcendental importance of the issues at hand, however, the Court grants them
standing.
Intervenors Franklin Drilon and Adel Tamano, in alleging their standing as taxpayers, assert that government funds would be
expended for the conduct of an illegal and unconstitutional plebiscite to delineate the BJE territory. On that score alone, they can be
given legal standing. Their allegation that the issues involved in these petitions are of "undeniable transcendental importance"
clothes them with added basis for their personality to intervene in these petitions.
With regard to Senator Manuel Roxas, his standing is premised on his being a member of the Senate and a citizen to enforce
compliance by respondents of the public's constitutional right to be informed of the MOA-AD, as well as on a genuine legal interest
in the matter in litigation, or in the success or failure of either of the parties. He thus possesses the requisite standing as an
intervenor.
With respect to Intervenors Ruy Elias Lopez, as a former congressman of the 3rd district of Davao City, a taxpayer and a member of
the Bagobo tribe; Carlo B. Gomez, et al., as members of the IBP Palawan chapter, citizens and taxpayers; Marino Ridao, as taxpayer,
resident and member of the Sangguniang Panlungsod of Cotabato City; and Kisin Buxani, as taxpayer, they failed to allege any proper
legal interest in the present petitions. Just the same, the Court exercises its discretion to relax the procedural technicality on locus
standi given the paramount public interest in the issues at hand.
Intervening respondents Muslim Multi-Sectoral Movement for Peace and Development, an advocacy group for justice and the
attainment of peace and prosperity in Muslim Mindanao; and Muslim Legal Assistance Foundation Inc., a non-government
organization of Muslim lawyers, allege that they stand to be benefited or prejudiced, as the case may be, in the resolution of the
petitions concerning the MOA-AD, and prays for the denial of the petitions on the grounds therein stated. Such legal interest suffices
to clothe them with standing.
B. MOOTNESS
Respondents insist that the present petitions have been rendered moot with the satisfaction of all the reliefs prayed for by
petitioners and the subsequent pronouncement of the Executive Secretary that "[n]o matter what the Supreme Court ultimately
decides[,] the government will not sign the MOA."
In lending credence to this policy decision, the Solicitor General points out that the President had already disbanded the GRP Peace
Panel.
In David v. Macapagal-Arroyo, this Court held that the "moot and academic" principle not being a magical formula that automatically
dissuades courts in resolving a case, it will decide cases, otherwise moot and academic, if it finds that (a) there is a grave violation of
the Constitution; (b) the situation is of exceptional character and paramount public interest is involved; (c) the constitutional issue
raised requires formulation of controlling principles to guide the bench, the bar, and the public; and (d) the case is capable of
repetition yet evading review.
Another exclusionary circumstance that may be considered is where there is a voluntary cessation of the activity complained of by
the defendant or doer. Thus, once a suit is filed and the doer voluntarily ceases the challenged conduct, it does not automatically
deprive the tribunal of power to hear and determine the case and does not render the case moot especially when the plaintiff seeks
damages or prays for injunctive relief against the possible recurrence of the violation.
The present petitions fall squarely into these exceptions to thus thrust them into the domain of judicial review. The grounds cited
above in David are just as applicable in the present cases as they were, not only in David, but also in Province of Batangas v. Romulo
and Manalo v. Calderon where the Court similarly decided them on the merits, supervening events that would ordinarily have
rendered the same moot notwithstanding.
Petitions not mooted
Contrary then to the asseverations of respondents, the non-signing of the MOA-AD and the eventual dissolution of the GRP Peace
Panel did not moot the present petitions. It bears emphasis that the signing of the MOA-AD did not push through due to the Court's
issuance of a Temporary Restraining Order.
Contrary too to respondents' position, the MOA-AD cannot be considered a mere "list of consensus points," especially given its
nomenclature, the need to have it signed or initialed by all the parties concerned on August 5, 2008, and the far-reaching
Constitutional implications of these "consensus points," foremost of which is the creation of the BJE.
In fact, as what will, in the main, be discussed, there is a commitment on the part of respondents to amend and effect necessary
changes to the existing legal framework for certain provisions of the MOA-AD to take effect. Consequently, the present petitions are
not confined to the terms and provisions of the MOA-AD, but to other on-going and future negotiations and agreements necessary
for its realization. The petitions have not, therefore, been rendered moot and academic simply by the public disclosure of the MOA-
AD,102 the manifestation that it will not be signed as well as the disbanding of the GRP Panel not withstanding.
Petitions are imbued with paramount public interest
There is no gainsaying that the petitions are imbued with paramount public interest, involving a significant part of the country's
territory and the wide-ranging political modifications of affected LGUs. The assertion that the MOA-AD is subject to further legal
enactments including possible Constitutional amendments more than ever provides impetus for the Court to formulate controlling
principles to guide the bench, the bar, the public and, in this case, the government and its negotiating entity.
Respondents cite Suplico v. NEDA, et al.103 where the Court did not "pontificat[e] on issues which no longer legitimately constitute
an actual case or controversy [as this] will do more harm than good to the nation as a whole."
The present petitions must be differentiated from Suplico. Primarily, in Suplico, what was assailed and eventually cancelled was a
stand-alone government procurement contract for a national broadband network involving a one-time contractual relation between
two parties-the government and a private foreign corporation. As the issues therein involved specific government procurement
policies and standard principles on contracts, the majority opinion in Suplico found nothing exceptional therein, the factual
circumstances being peculiar only to the transactions and parties involved in the controversy.
The MOA-AD is part of a series of agreements
In the present controversy, the MOA-AD is a significant part of a series of agreements necessary to carry out the Tripoli Agreement
2001. The MOA-AD which dwells on the Ancestral Domain Aspect of said Tripoli Agreement is the third such component to be
undertaken following the implementation of the Security Aspect in August 2001 and the Humanitarian, Rehabilitation and
Development Aspect in May 2002.
Accordingly, even if the Executive Secretary, in his Memorandum of August 28, 2008 to the Solicitor General, has stated that "no
matter what the Supreme Court ultimately decides[,] the government will not sign the MOA[-AD]," mootness will not set in in light
of the terms of the Tripoli Agreement 2001.
Need to formulate principles-guidelines
Surely, the present MOA-AD can be renegotiated or another one will be drawn up to carry out the Ancestral Domain Aspect of the
Tripoli Agreement 2001, in another or in any form, which could contain similar or significantly drastic provisions. While the Court
notes the word of the Executive Secretary that the government "is committed to securing an agreement that is both constitutional
and equitable because that is the only way that long-lasting peace can be assured," it is minded to render a decision on the merits in
the present petitions to formulate controlling principles to guide the bench, the bar, the public and, most especially, the government
in negotiating with the MILF regarding Ancestral Domain.
Respondents invite the Court's attention to the separate opinion of then Chief Justice Artemio Panganiban in Sanlakas v. Reyes104 in
which he stated that the doctrine of "capable of repetition yet evading review" can override mootness, "provided the party raising it
in a proper case has been and/or continue to be prejudiced or damaged as a direct result of their issuance." They contend that the
Court must have jurisdiction over the subject matter for the doctrine to be invoked.
The present petitions all contain prayers for Prohibition over which this Court exercises original jurisdiction. While G.R. No. 183893
(City of Iligan v. GRP) is a petition for Injunction and Declaratory Relief, the Court will treat it as one for Prohibition as it has far
reaching implications and raises questions that need to be resolved.105 At all events, the Court has jurisdiction over most if not the
rest of the petitions.
Indeed, the present petitions afford a proper venue for the Court to again apply the doctrine immediately referred to as what it had
done in a number of landmark cases.106 There is a reasonable expectation that petitioners, particularly the Provinces of North
Cotabato, Zamboanga del Norte and Sultan Kudarat, the Cities of Zamboanga, Iligan and Isabela, and the Municipality of Linamon,
will again be subjected to the same problem in the future as respondents' actions are capable of repetition, in another or any form.
It is with respect to the prayers for Mandamus that the petitions have become moot, respondents having, by Compliance of August
7, 2008, provided this Court and petitioners with official copies of the final draft of the MOA-AD and its annexes. Too, intervenors
have been furnished, or have procured for themselves, copies of the MOA-AD.
V. SUBSTANTIVE ISSUES
As culled from the Petitions and Petitions-in-Intervention, there are basically two SUBSTANTIVE issues to be resolved, one relating to
the manner in which the MOA-AD was negotiated and finalized, the other relating to its provisions, viz:
1. Did respondents violate constitutional and statutory provisions on public consultation and the right to information when they
negotiated and later initialed the MOA-AD?
2. Do the contents of the MOA-AD violate the Constitution and the laws?
ON THE FIRST SUBSTANTIVE ISSUE
Petitioners invoke their constitutional right to information on matters of public concern, as provided in Section 7, Article III on the
Bill of Rights:
Sec. 7. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to
documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for
policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.
As early as 1948, in Subido v. Ozaeta, the Court has recognized the statutory right to examine and inspect public records, a right
which was eventually accorded constitutional status.
The right of access to public documents, as enshrined in both the 1973 Constitution and the 1987 Constitution, has been recognized
as a self-executory constitutional right.
In the 1976 case of Baldoza v. Hon. Judge Dimaano, the Court ruled that access to public records is predicated on the right of the
people to acquire information on matters of public concern since, undoubtedly, in a democracy, the pubic has a legitimate interest
in matters of social and political significance.
x x x The incorporation of this right in the Constitution is a recognition of the fundamental role of free exchange of information in a
democracy. There can be no realistic perception by the public of the nation's problems, nor a meaningful democratic decision-
making if they are denied access to information of general interest. Information is needed to enable the members of society to cope
with the exigencies of the times. As has been aptly observed: "Maintaining the flow of such information depends on protection for
both its acquisition and its dissemination since, if either process is interrupted, the flow inevitably ceases." x x x
In the same way that free discussion enables members of society to cope with the exigencies of their time, access to information of
general interest aids the people in democratic decision-making by giving them a better perspective of the vital issues confronting the
nation so that they may be able to criticize and participate in the affairs of the government in a responsible, reasonable and effective
manner. It is by ensuring an unfettered and uninhibited exchange of ideas among a well-informed public that a government remains
responsive to the changes desired by the people.
The MOA-AD is a matter of public concern
That the subject of the information sought in the present cases is a matter of public concern faces no serious challenge. In fact,
respondents admit that the MOA-AD is indeed of public concern. In previous cases, the Court found that the regularity of real estate
transactions entered in the Register of Deeds, the need for adequate notice to the public of the various laws, the civil service
eligibility of a public employee, the proper management of GSIS funds allegedly used to grant loans to public officials, the recovery
of the Marcoses' alleged ill-gotten wealth, and the identity of party-list nominees, among others, are matters of public concern.
Undoubtedly, the MOA-AD subject of the present cases is of public concern, involving as it does the sovereignty and territorial
integrity of the State, which directly affects the lives of the public at large.
Matters of public concern covered by the right to information include steps and negotiations leading to the consummation of the
contract. In not distinguishing as to the executory nature or commercial character of agreements, the Court has categorically ruled:
x x x [T]he right to information "contemplates inclusion of negotiations leading to the consummation of the transaction." Certainly, a
consummated contract is not a requirement for the exercise of the right to information. Otherwise, the people can never exercise
the right if no contract is consummated, and if one is consummated, it may be too late for the public to expose its defects.
Requiring a consummated contract will keep the public in the dark until the contract, which may be grossly disadvantageous to the
government or even illegal, becomes fait accompli. This negates the State policy of full transparency on matters of public concern, a
situation which the framers of the Constitution could not have intended. Such a requirement will prevent the citizenry from
participating in the public discussion of any proposed contract, effectively truncating a basic right enshrined in the Bill of Rights. We
can allow neither an emasculation of a constitutional right, nor a retreat by the State of its avowed "policy of full disclosure of all its
transactions involving public interest." (Emphasis and italics in the original)
Intended as a "splendid symmetry" to the right to information under the Bill of Rights is the policy of public disclosure under Section
28, Article II of the Constitution reading:
Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all
its transactions involving public interest.
The policy of full public disclosure enunciated in above-quoted Section 28 complements the right of access to information on
matters of public concern found in the Bill of Rights. The right to information guarantees the right of the people to demand
information, while Section 28 recognizes the duty of officialdom to give information even if nobody demands.
The policy of public disclosure establishes a concrete ethical principle for the conduct of public affairs in a genuinely open
democracy, with the people's right to know as the centerpiece. It is a mandate of the State to be accountable by following such
policy. These provisions are vital to the exercise of the freedom of expression and essential to hold public officials at all times
accountable to the people.
Whether Section 28 is self-executory, the records of the deliberations of the Constitutional Commission so disclose:
MR. SUAREZ. And since this is not self-executory, this policy will not be enunciated or will not be in force and effect until after
Congress shall have provided it.
MR. OPLE. I expect it to influence the climate of public ethics immediately but, of course, the implementing law will have to be
enacted by Congress, Mr. Presiding Officer.
The following discourse, after Commissioner Hilario Davide, Jr., sought clarification on the issue, is enlightening.
MR. DAVIDE. I would like to get some clarifications on this. Mr. Presiding Officer, did I get the Gentleman correctly as having said
that this is not a self-executing provision? It would require a legislation by Congress to implement?
MR. OPLE. Yes. Originally, it was going to be self-executing, but I accepted an amendment from Commissioner Regalado, so that the
safeguards on national interest are modified by the clause "as may be provided by law"
MR. DAVIDE. But as worded, does it not mean that this will immediately take effect and Congress may provide for reasonable
safeguards on the sole ground national interest?
MR. OPLE. Yes. I think so, Mr. Presiding Officer, I said earlier that it should immediately influence the climate of the conduct of public
affairs but, of course, Congress here may no longer pass a law revoking it, or if this is approved, revoking this principle, which is
inconsistent with this policy. (Emphasis supplied)
Indubitably, the effectivity of the policy of public disclosure need not await the passing of a statute. As Congress cannot revoke this
principle, it is merely directed to provide for "reasonable safeguards." The complete and effective exercise of the right to
information necessitates that its complementary provision on public disclosure derive the same self-executory nature. Since both
provisions go hand-in-hand, it is absurd to say that the broader130 right to information on matters of public concern is already
enforceable while the correlative duty of the State to disclose its transactions involving public interest is not enforceable until there
is an enabling law. Respondents cannot thus point to the absence of an implementing legislation as an excuse in not effecting such
policy.
An essential element of these freedoms is to keep open a continuing dialogue or process of communication between the
government and the people. It is in the interest of the State that the channels for free political discussion be maintained to the end
that the government may perceive and be responsive to the people's will. Envisioned to be corollary to the twin rights to
information and disclosure is the design for feedback mechanisms.
MS. ROSARIO BRAID. Yes. And lastly, Mr. Presiding Officer, will the people be able to participate? Will the government provide
feedback mechanisms so that the people can participate and can react where the existing media facilities are not able to provide full
feedback mechanisms to the government? I suppose this will be part of the government implementing operational mechanisms.
MR. OPLE. Yes. I think through their elected representatives and that is how these courses take place. There is a message and a
feedback, both ways.
xxxx
MS. ROSARIO BRAID. Mr. Presiding Officer, may I just make one last sentence?
I think when we talk about the feedback network, we are not talking about public officials but also network of private business o[r]
community-based organizations that will be reacting. As a matter of fact, we will put more credence or credibility on the private
network of volunteers and voluntary community-based organizations. So I do not think we are afraid that there will be another OMA
in the making. (Emphasis supplied)
The imperative of a public consultation, as a species of the right to information, is evident in the "marching orders" to respondents.
The mechanics for the duty to disclose information and to conduct public consultation regarding the peace agenda and process is
manifestly provided by E.O. No. 3. The preambulatory clause of E.O. No. 3 declares that there is a need to further enhance the
contribution of civil society to the comprehensive peace process by institutionalizing the people's participation.
One of the three underlying principles of the comprehensive peace process is that it "should be community-based, reflecting the
sentiments, values and principles important to all Filipinos" and "shall be defined not by the government alone, nor by the different
contending groups only, but by all Filipinos as one community."134 Included as a component of the comprehensive peace process is
consensus-building and empowerment for peace, which includes "continuing consultations on both national and local levels to build
consensus for a peace agenda and process, and the mobilization and facilitation of people's participation in the peace process."
Clearly, E.O. No. 3 contemplates not just the conduct of a plebiscite to effectuate "continuing" consultations, contrary to
respondents' position that plebiscite is "more than sufficient consultation."
Further, E.O. No. 3 enumerates the functions and responsibilities of the PAPP, one of which is to "[c]onduct regular dialogues with
the National Peace Forum (NPF) and other peace partners to seek relevant information, comments, recommendations as well as to
render appropriate and timely reports on the progress of the comprehensive peace process." E.O. No. 3 mandates the establishment
of the NPF to be "the principal forum for the PAPP to consult with and seek advi[c]e from the peace advocates, peace partners and
concerned sectors of society on both national and local levels, on the implementation of the comprehensive peace process, as well
as for government[-]civil society dialogue and consensus-building on peace agenda and initiatives."
In fine, E.O. No. 3 establishes petitioners' right to be consulted on the peace agenda, as a corollary to the constitutional right to
information and disclosure.
PAPP Esperon committed grave abuse of discretion
The PAPP committed grave abuse of discretion when he failed to carry out the pertinent consultation. The furtive process by which
the MOA-AD was designed and crafted runs contrary to and in excess of the legal authority, and amounts to a whimsical, capricious,
oppressive, arbitrary and despotic exercise thereof.
The Court may not, of course, require the PAPP to conduct the consultation in a particular way or manner. It may, however, require
him to comply with the law and discharge the functions within the authority granted by the President.
Petitioners are not claiming a seat at the negotiating table, contrary to respondents' retort in justifying the denial of petitioners'
right to be consulted. Respondents' stance manifests the manner by which they treat the salient provisions of E.O. No. 3 on people's
participation. Such disregard of the express mandate of the President is not much different from superficial conduct toward token
provisos that border on classic lip service. It illustrates a gross evasion of positive duty and a virtual refusal to perform the duty
enjoined.
As for respondents' invocation of the doctrine of executive privilege, it is not tenable under the premises. The argument defies
sound reason when contrasted with E.O. No. 3's explicit provisions on continuing consultation and dialogue on both national and
local levels. The executive order even recognizes the exercise of the public's right even before the GRP makes its official
recommendations or before the government proffers its definite propositions. It bear emphasis that E.O. No. 3 seeks to elicit
relevant advice, information, comments and recommendations from the people through dialogue.
AT ALL EVENTS, respondents effectively waived the defense of executive privilege in view of their unqualified disclosure of the
official copies of the final draft of the MOA-AD. By unconditionally complying with the Court's August 4, 2008 Resolution, without a
prayer for the document's disclosure in camera, or without a manifestation that it was complying therewith ex abundante ad
cautelam.
Petitioners' assertion that the Local Government Code (LGC) of 1991 declares it a State policy to "require all national agencies and
offices to conduct periodic consultations with appropriate local government units, non-governmental and people's organizations,
and other concerned sectors of the community before any project or program is implemented in their respective jurisdictions" is
well-taken. The LGC chapter on intergovernmental relations puts flesh into this avowed policy:
Prior Consultations Required. - No project or program shall be implemented by government authorities unless the consultations
mentioned in Sections 2 (c) and 26 hereof are complied with, and prior approval of the sanggunian concerned is obtained: Provided,
That occupants in areas where such projects are to be implemented shall not be evicted unless appropriate relocation sites have
been provided, in accordance with the provisions of the Constitution. (Italics and underscoring supplied)
In Lina, Jr. v. Hon. Paño,144 the Court held that the above-stated policy and above-quoted provision of the LGU apply only to
national programs or projects which are to be implemented in a particular local community. Among the programs and projects
covered are those that are critical to the environment and human ecology including those that may call for the eviction of a
particular group of people residing in the locality where these will be implemented.145 The MOA-AD is one peculiar program that
unequivocally and unilaterally vests ownership of a vast territory to the Bangsamoro people, which could pervasively and drastically
result to the diaspora or displacement of a great number of inhabitants from their total environment.
With respect to the indigenous cultural communities/indigenous peoples (ICCs/IPs), whose interests are represented herein by
petitioner Lopez and are adversely affected by the MOA-AD, the ICCs/IPs have, under the IPRA, the right to participate fully at all
levels of decision-making in matters which may affect their rights, lives and destinies.147 The MOA-AD, an instrument recognizing
ancestral domain, failed to justify its non-compliance with the clear-cut mechanisms ordained in said Act,148 which entails, among
other things, the observance of the free and prior informed consent of the ICCs/IPs.
Notably, the IPRA does not grant the Executive Department or any government agency the power to delineate and recognize an
ancestral domain claim by mere agreement or compromise. The recognition of the ancestral domain is the raison d'etre of the MOA-
AD, without which all other stipulations or "consensus points" necessarily must fail. In proceeding to make a sweeping declaration
on ancestral domain, without complying with the IPRA, which is cited as one of the TOR of the MOA-AD, respondents clearly
transcended the boundaries of their authority. As it seems, even the heart of the MOA-AD is still subject to necessary changes to the
legal framework. While paragraph 7 on Governance suspends the effectivity of all provisions requiring changes to the legal
framework, such clause is itself invalid, as will be discussed in the following section.
Indeed, ours is an open society, with all the acts of the government subject to public scrutiny and available always to public
cognizance. This has to be so if the country is to remain democratic, with sovereignty residing in the people and all government
authority emanating from them.
ON THE SECOND SUBSTANTIVE ISSUE
With regard to the provisions of the MOA-AD, there can be no question that they cannot all be accommodated under the present
Constitution and laws. Respondents have admitted as much in the oral arguments before this Court, and the MOA-AD itself
recognizes the need to amend the existing legal framework to render effective at least some of its provisions. Respondents,
nonetheless, counter that the MOA-AD is free of any legal infirmity because any provisions therein which are inconsistent with the
present legal framework will not be effective until the necessary changes to that framework are made. The validity of this argument
will be considered later. For now, the Court shall pass upon how the MOA-AD is inconsistent with the Constitution and laws as
presently worded.
In general, the objections against the MOA-AD center on the extent of the powers conceded therein to the BJE. Petitioners assert
that the powers granted to the BJE exceed those granted to any local government under present laws, and even go beyond those of
the present ARMM. Before assessing some of the specific powers that would have been vested in the BJE, however, it would be
useful to turn first to a general idea that serves as a unifying link to the different provisions of the MOA-AD, namely, the
international law concept of association. Significantly, the MOA-AD explicitly alludes to this concept, indicating that the Parties
actually framed its provisions with it in mind.
Association is referred to in paragraph 3 on TERRITORY, paragraph 11 on RESOURCES, and paragraph 4 on GOVERNANCE. It is in the
last mentioned provision, however, that the MOA-AD most clearly uses it to describe the envisioned relationship between the BJE
and the Central Government.
4. The relationship between the Central Government and the Bangsamoro juridical entity shall be associative characterized by
shared authority and responsibility with a structure of governance based on executive, legislative, judicial and administrative
institutions with defined powers and functions in the comprehensive compact. A period of transition shall be established in a
comprehensive peace compact specifying the relationship between the Central Government and the BJE. (Emphasis and
underscoring supplied)
The nature of the "associative" relationship may have been intended to be defined more precisely in the still to be forged
Comprehensive Compact. Nonetheless, given that there is a concept of "association" in international law, and the MOA-AD - by its
inclusion of international law instruments in its TOR- placed itself in an international legal context, that concept of association may
be brought to bear in understanding the use of the term "associative" in the MOA-AD.
Keitner and Reisman state that
[a]n association is formed when two states of unequal power voluntarily establish durable links. In the basic model, one state, the
associate, delegates certain responsibilities to the other, the principal, while maintaining its international status as a state. Free
associations represent a middle ground between integration and independence. x x x150 (Emphasis and underscoring supplied)
For purposes of illustration, the Republic of the Marshall Islands and the Federated States of Micronesia (FSM), formerly part of the
U.S.-administered Trust Territory of the Pacific Islands, are associated states of the U.S. pursuant to a Compact of Free Association.
The currency in these countries is the U.S. dollar, indicating their very close ties with the U.S., yet they issue their own travel
documents, which is a mark of their statehood. Their international legal status as states was confirmed by the UN Security Council
and by their admission to UN membership.
According to their compacts of free association, the Marshall Islands and the FSM generally have the capacity to conduct foreign
affairs in their own name and right, such capacity extending to matters such as the law of the sea, marine resources, trade, banking,
postal, civil aviation, and cultural relations. The U.S. government, when conducting its foreign affairs, is obligated to consult with the
governments of the Marshall Islands or the FSM on matters which it (U.S. government) regards as relating to or affecting either
government.
In the event of attacks or threats against the Marshall Islands or the FSM, the U.S. government has the authority and obligation to
defend them as if they were part of U.S. territory. The U.S. government, moreover, has the option of establishing and using military
areas and facilities within these associated states and has the right to bar the military personnel of any third country from having
access to these territories for military purposes.
It bears noting that in U.S. constitutional and international practice, free association is understood as an international association
between sovereigns. The Compact of Free Association is a treaty which is subordinate to the associated nation's national
constitution, and each party may terminate the association consistent with the right of independence. It has been said that, with the
admission of the U.S.-associated states to the UN in 1990, the UN recognized that the American model of free association is actually
based on an underlying status of independence.
In international practice, the "associated state" arrangement has usually been used as a transitional device of former colonies on
their way to full independence. Examples of states that have passed through the status of associated states as a transitional phase
are Antigua, St. Kitts-Nevis-Anguilla, Dominica, St. Lucia, St. Vincent and Grenada. All have since become independent states.
Back to the MOA-AD, it contains many provisions which are consistent with the international legal concept of association, specifically
the following: the BJE's capacity to enter into economic and trade relations with foreign countries, the commitment of the Central
Government to ensure the BJE's participation in meetings and events in the ASEAN and the specialized UN agencies, and the
continuing responsibility of the Central Government over external defense. Moreover, the BJE's right to participate in Philippine
official missions bearing on negotiation of border agreements, environmental protection, and sharing of revenues pertaining to the
bodies of water adjacent to or between the islands forming part of the ancestral domain, resembles the right of the governments of
FSM and the Marshall Islands to be consulted by the U.S. government on any foreign affairs matter affecting them.
These provisions of the MOA indicate, among other things, that the Parties aimed to vest in the BJE the status of an associated state
or, at any rate, a status closely approximating it.
The concept of association is not recognized under the present Constitution
No province, city, or municipality, not even the ARMM, is recognized under our laws as having an "associative" relationship with the
national government. Indeed, the concept implies powers that go beyond anything ever granted by the Constitution to any local or
regional government. It also implies the recognition of the associated entity as a state. The Constitution, however, does not
contemplate any state in this jurisdiction other than the Philippine State, much less does it provide for a transitory status that aims
to prepare any part of Philippine territory for independence.
Even the mere concept animating many of the MOA-AD's provisions, therefore, already requires for its validity the amendment of
constitutional provisions, specifically the following provisions of Article X:
SECTION 1. The territorial and political subdivisions of the Republic of the Philippines are the provinces, cities, municipalities, and
barangays. There shall be autonomous regions in Muslim Mindanao and the Cordilleras as hereinafter provided.
SECTION 15. There shall be created autonomous regions in Muslim Mindanao and in the Cordilleras consisting of provinces, cities,
municipalities, and geographical areas sharing common and distinctive historical and cultural heritage, economic and social
structures, and other relevant characteristics within the framework of this Constitution and the national sovereignty as well as
territorial integrity of the Republic of the Philippines.
The BJE is a far more powerful entity than the autonomous region recognized in the Constitution
It is not merely an expanded version of the ARMM, the status of its relationship with the national government being fundamentally
different from that of the ARMM. Indeed, BJE is a state in all but name as it meets the criteria of a state laid down in the Montevideo
Convention, namely, a permanent population, a defined territory, a government, and a capacity to enter into relations with other
states.
Even assuming arguendo that the MOA-AD would not necessarily sever any portion of Philippine territory, the spirit animating it -
which has betrayed itself by its use of the concept of association - runs counter to the national sovereignty and territorial integrity of
the Republic.
The defining concept underlying the relationship between the national government and the BJE being itself contrary to the present
Constitution, it is not surprising that many of the specific provisions of the MOA-AD on the formation and powers of the BJE are in
conflict with the Constitution and the laws.
Article X, Section 18 of the Constitution provides that "[t]he creation of the autonomous region shall be effective when approved by
a majority of the votes cast by the constituent units in a plebiscite called for the purpose, provided that only provinces, cities, and
geographic areas voting favorably in such plebiscite shall be included in the autonomous region." (Emphasis supplied)
As reflected above, the BJE is more of a state than an autonomous region. But even assuming that it is covered by the term
"autonomous region" in the constitutional provision just quoted, the MOA-AD would still be in conflict with it. Under paragraph 2(c)
on TERRITORY in relation to 2(d) and 2(e), the present geographic area of the ARMM and, in addition, the municipalities of Lanao del
Norte which voted for inclusion in the ARMM during the 2001 plebiscite - Baloi, Munai, Nunungan, Pantar, Tagoloan and Tangkal -
are automatically part of the BJE without need of another plebiscite, in contrast to the areas under Categories A and B mentioned
earlier in the overview. That the present components of the ARMM and the above-mentioned municipalities voted for inclusion
therein in 2001, however, does not render another plebiscite unnecessary under the Constitution, precisely because what these
areas voted for then was their inclusion in the ARMM, not the BJE.
The MOA-AD, moreover, would not comply with Article X, Section 20 of the Constitution since that provision defines the powers of
autonomous regions as follows:
SECTION 20. Within its territorial jurisdiction and subject to the provisions of this Constitution and national laws, the organic act of
autonomous regions shall provide for legislative powers over:
(1) Administrative organization;
(2) Creation of sources of revenues;
(3) Ancestral domain and natural resources;
(4) Personal, family, and property relations;
(5) Regional urban and rural planning development;
(6) Economic, social, and tourism development;
(7) Educational policies;
(8) Preservation and development of the cultural heritage; and
(9) Such other matters as may be authorized by law for the promotion of the general welfare of the people of the region.
(Underscoring supplied)
Again on the premise that the BJE may be regarded as an autonomous region, the MOA-AD would require an amendment that
would expand the above-quoted provision. The mere passage of new legislation pursuant to sub-paragraph No. 9 of said
constitutional provision would not suffice, since any new law that might vest in the BJE the powers found in the MOA-AD must,
itself, comply with other provisions of the Constitution. It would not do, for instance, to merely pass legislation vesting the BJE with
treaty-making power in order to accommodate paragraph 4 of the strand on RESOURCES which states: "The BJE is free to enter into
any economic cooperation and trade relations with foreign countries: provided, however, that such relationships and
understandings do not include aggression against the Government of the Republic of the Philippines x x x." Under our constitutional
system, it is only the President who has that power. Pimentel v. Executive Secretary instructs:
In our system of government, the President, being the head of state, is regarded as the sole organ and authority in external relations
and is the country's sole representative with foreign nations. As the chief architect of foreign policy, the President acts as the
country's mouthpiece with respect to international affairs. Hence, the President is vested with the authority to deal with foreign
states and governments, extend or withhold recognition, maintain diplomatic relations, enter into treaties, and otherwise transact
the business of foreign relations. In the realm of treaty-making, the President has the sole authority to negotiate with other states.
(Emphasis and underscoring supplied)
Article II, Section 22 of the Constitution must also be amended if the scheme envisioned in the MOA-AD is to be effected. That
constitutional provision states: "The State recognizes and promotes the rights of indigenous cultural communities within the
framework of national unity and development." (Underscoring supplied) An associative arrangement does not uphold national unity.
While there may be a semblance of unity because of the associative ties between the BJE and the national government, the act of
placing a portion of Philippine territory in a status which, in international practice, has generally been a preparation for
independence, is certainly not conducive to national unity.
Besides being irreconcilable with the Constitution, the MOA-AD is also inconsistent with prevailing statutory law, among which are
R.A. No. 9054156 or the Organic Act of the ARMM, and the IPRA.
Article X, Section 3 of the Organic Act of the ARMM is a bar to the adoption of the definition of "Bangsamoro people" used in the
MOA-AD. Paragraph 1 on Concepts and Principles states:
1. It is the birthright of all Moros and all Indigenous peoples of Mindanao to identify themselves and be accepted as "Bangsamoros".
The Bangsamoro people refers to those who are natives or original inhabitants of Mindanao and its adjacent islands including
Palawan and the Sulu archipelago at the time of conquest or colonization of its descendants whether mixed or of full blood. Spouses
and their descendants are classified as Bangsamoro. The freedom of choice of the Indigenous people shall be respected. (Emphasis
and underscoring supplied)
This use of the term Bangsamoro sharply contrasts with that found in the Article X, Section 3 of the Organic Act, which, rather than
lumping together the identities of the Bangsamoro and other indigenous peoples living in Mindanao, clearly distinguishes between
Bangsamoro people and Tribal peoples, as follows:
"As used in this Organic Act, the phrase "indigenous cultural community" refers to Filipino citizens residing in the autonomous region
who are:
(a) Tribal peoples. These are citizens whose social, cultural and economic conditions distinguish them from other sectors of the
national community; and
(b) Bangsa Moro people. These are citizens who are believers in Islam and who have retained some or all of their own social,
economic, cultural, and political institutions."
Respecting the IPRA, it lays down the prevailing procedure for the delineation and recognition of ancestral domains. The MOA-AD's
manner of delineating the ancestral domain of the Bangsamoro people is a clear departure from that procedure. By paragraph 1 of
Territory, the Parties simply agree that, subject to the delimitations in the agreed Schedules, "[t]he Bangsamoro homeland and
historic territory refer to the land mass as well as the maritime, terrestrial, fluvial and alluvial domains, and the aerial domain, the
atmospheric space above it, embracing the Mindanao-Sulu-Palawan geographic region."
Chapter VIII of the IPRA, on the other hand, lays down a detailed procedure, as illustrated in the following provisions thereof:
SECTION 52. Delineation Process. - The identification and delineation of ancestral domains shall be done in accordance with the
following procedures:x x x x
b) Petition for Delineation. - The process of delineating a specific perimeter may be initiated by the NCIP with the consent of the
ICC/IP concerned, or through a Petition for Delineation filed with the NCIP, by a majority of the members of the ICCs/IPs;
c) Delineation Proper. - The official delineation of ancestral domain boundaries including census of all community members therein,
shall be immediately undertaken by the Ancestral Domains Office upon filing of the application by the ICCs/IPs concerned.
Delineation will be done in coordination with the community concerned and shall at all times include genuine involvement and
participation by the members of the communities concerned;
d) Proof Required. - Proof of Ancestral Domain Claims shall include the testimony of elders or community under oath, and other
documents directly or indirectly attesting to the possession or occupation of the area since time immemorial by such ICCs/IPs in the
concept of owners which shall be any one (1) of the following authentic documents:
1) Written accounts of the ICCs/IPs customs an traditions;
2) Written accounts of the ICCs/IPs political structure and institution;
3) Pictures showing long term occupation such as those of old improvements, burial grounds, sacred places and old villages;
4) Historical accounts, including pacts and agreements concerning boundaries entered into by the ICCs/IPs concerned with other
ICCs/IPs;
5) Survey plans and sketch maps;
6) Anthropological data;
7) Genealogical surveys;
8) Pictures and descriptive histories of traditional communal forests and hunting grounds;
9) Pictures and descriptive histories of traditional landmarks such as mountains, rivers, creeks, ridges, hills, terraces and the like; and
10) Write-ups of names and places derived from the native dialect of the community.
e) Preparation of Maps. - On the basis of such investigation and the findings of fact based thereon, the Ancestral Domains Office of
the NCIP shall prepare a perimeter map, complete with technical descriptions, and a description of the natural features and
landmarks embraced therein;
f) Report of Investigation and Other Documents. - A complete copy of the preliminary census and a report of investigation, shall be
prepared by the Ancestral Domains Office of the NCIP;
g) Notice and Publication. - A copy of each document, including a translation in the native language of the ICCs/IPs concerned shall
be posted in a prominent place therein for at least fifteen (15) days. A copy of the document shall also be posted at the local,
provincial and regional offices of the NCIP, and shall be published in a newspaper of general circulation once a week for two (2)
consecutive weeks to allow other claimants to file opposition thereto within fifteen (15) days from date of such publication:
Provided, That in areas where no such newspaper exists, broadcasting in a radio station will be a valid substitute: Provided, further,
That mere posting shall be deemed sufficient if both newspaper and radio station are not available;
h) Endorsement to NCIP. - Within fifteen (15) days from publication, and of the inspection process, the Ancestral Domains Office
shall prepare a report to the NCIP endorsing a favorable action upon a claim that is deemed to have sufficient proof. However, if the
proof is deemed insufficient, the Ancestral Domains Office shall require the submission of additional evidence: Provided, That the
Ancestral Domains Office shall reject any claim that is deemed patently false or fraudulent after inspection and verification:
Provided, further, That in case of rejection, the Ancestral Domains Office shall give the applicant due notice, copy furnished all
concerned, containing the grounds for denial. The denial shall be appealable to the NCIP: Provided, furthermore, That in cases
where there are conflicting claims among ICCs/IPs on the boundaries of ancestral domain claims, the Ancestral Domains Office shall
cause the contending parties to meet and assist them in coming up with a preliminary resolution of the conflict, without prejudice to
its full adjudication according to the section below.x x x x
To remove all doubts about the irreconcilability of the MOA-AD with the present legal system, a discussion of not only the
Constitution and domestic statutes, but also of international law is in order, for
Article II, Section 2 of the Constitution states that the Philippines "adopts the generally accepted principles of international law as
part of the law of the land."
Applying this provision of the Constitution, the Court, in Mejoff v. Director of Prisons,158 held that the Universal Declaration of
Human Rights is part of the law of the land on account of which it ordered the release on bail of a detained alien of Russian descent
whose deportation order had not been executed even after two years. Similarly, the Court in Agustin v. Edu159 applied the aforesaid
constitutional provision to the 1968 Vienna Convention on Road Signs and Signals.
International law has long recognized the right to self-determination of "peoples," understood not merely as the entire population
of a State but also a portion thereof. In considering the question of whether the people of Quebec had a right to unilaterally secede
from Canada, the Canadian Supreme Court in REFERENCE RE SECESSION OF QUEBEC160 had occasion to acknowledge that "the right
of a people to self-determination is now so widely recognized in international conventions that the principle has acquired a status
beyond ‘convention' and is considered a general principle of international law."
Among the conventions referred to are the International Covenant on Civil and Political Rights161 and the International Covenant on
Economic, Social and Cultural Rights162 which state, in Article 1 of both covenants, that all peoples, by virtue of the right of self-
determination, "freely determine their political status and freely pursue their economic, social, and cultural development."
The people's right to self-determination should not, however, be understood as extending to a unilateral right of secession. A
distinction should be made between the right of internal and external self-determination. REFERENCE RE SECESSION OF QUEBEC is
again instructive:
"(ii) Scope of the Right to Self-determination
126. The recognized sources of international law establish that the right to self-determination of a people is normally fulfilled
through internal self-determination - a people's pursuit of its political, economic, social and cultural development within the
framework of an existing state. A right to external self-determination (which in this case potentially takes the form of the assertion
of a right to unilateral secession) arises in only the most extreme of cases and, even then, under carefully defined circumstances. x x
x
External self-determination can be defined as in the following statement from the Declaration on Friendly Relations, supra, as
The establishment of a sovereign and independent State, the free association or integration with an independent State or the
emergence into any other political status freely determined by a people constitute modes of implementing the right of self-
determination by that people. (Emphasis added)
127. The international law principle of self-determination has evolved within a framework of respect for the territorial integrity of
existing states. The various international documents that support the existence of a people's right to self-determination also contain
parallel statements supportive of the conclusion that the exercise of such a right must be sufficiently limited to prevent threats to an
existing state's territorial integrity or the stability of relations between sovereign states.
x x x x (Emphasis, italics and underscoring supplied)
The Canadian Court went on to discuss the exceptional cases in which the right to external self-determination can arise, namely,
where a people is under colonial rule, is subject to foreign domination or exploitation outside a colonial context, and - less definitely
but asserted by a number of commentators - is blocked from the meaningful exercise of its right to internal self-determination. The
Court ultimately held that the population of Quebec had no right to secession, as the same is not under colonial rule or foreign
domination, nor is it being deprived of the freedom to make political choices and pursue economic, social and cultural development,
citing that Quebec is equitably represented in legislative, executive and judicial institutions within Canada, even occupying
prominent positions therein.
The exceptional nature of the right of secession is further exemplified in the REPORT OF THE INTERNATIONAL COMMITTEE OF
JURISTS ON THE LEGAL ASPECTS OF THE AALAND ISLANDS QUESTION.163 There, Sweden presented to the Council of the League of
Nations the question of whether the inhabitants of the Aaland Islands should be authorized to determine by plebiscite if the
archipelago should remain under Finnish sovereignty or be incorporated in the kingdom of Sweden. The Council, before resolving
the question, appointed an International Committee composed of three jurists to submit an opinion on the preliminary issue of
whether the dispute should, based on international law, be entirely left to the domestic jurisdiction of Finland. The Committee
stated the rule as follows:
x x x [I]n the absence of express provisions in international treaties, the right of disposing of national territory is essentially an
attribute of the sovereignty of every State. Positive International Law does not recognize the right of national groups, as such, to
separate themselves from the State of which they form part by the simple expression of a wish, any more than it recognizes the right
of other States to claim such a separation. Generally speaking, the grant or refusal of the right to a portion of its population of
determining its own political fate by plebiscite or by some other method, is, exclusively, an attribute of the sovereignty of every
State which is definitively constituted. A dispute between two States concerning such a question, under normal conditions
therefore, bears upon a question which International Law leaves entirely to the domestic jurisdiction of one of the States concerned.
Any other solution would amount to an infringement of sovereign rights of a State and would involve the risk of creating difficulties
and a lack of stability which would not only be contrary to the very idea embodied in term "State," but would also endanger the
interests of the international community. If this right is not possessed by a large or small section of a nation, neither can it be held by
the State to which the national group wishes to be attached, nor by any other State. (Emphasis and underscoring supplied)
The Committee held that the dispute concerning the Aaland Islands did not refer to a question which is left by international law to
the domestic jurisdiction of Finland, thereby applying the exception rather than the rule elucidated above. Its ground for departing
from the general rule, however, was a very narrow one, namely, the Aaland Islands agitation originated at a time when Finland was
undergoing drastic political transformation. The internal situation of Finland was, according to the Committee, so abnormal that, for
a considerable time, the conditions required for the formation of a sovereign State did not exist. In the midst of revolution, anarchy,
and civil war, the legitimacy of the Finnish national government was disputed by a large section of the people, and it had, in fact,
been chased from the capital and forcibly prevented from carrying out its duties. The armed camps and the police were divided into
two opposing forces. In light of these circumstances, Finland was not, during the relevant time period, a "definitively constituted"
sovereign state. The Committee, therefore, found that Finland did not possess the right to withhold from a portion of its population
the option to separate itself - a right which sovereign nations generally have with respect to their own populations.
Turning now to the more specific category of indigenous peoples, this term has been used, in scholarship as well as international,
regional, and state practices, to refer to groups with distinct cultures, histories, and connections to land (spiritual and otherwise)
that have been forcibly incorporated into a larger governing society. These groups are regarded as "indigenous" since they are the
living descendants of pre-invasion inhabitants of lands now dominated by others. Otherwise stated, indigenous peoples, nations, or
communities are culturally distinctive groups that find themselves engulfed by settler societies born of the forces of empire and
conquest.164 Examples of groups who have been regarded as indigenous peoples are the Maori of New Zealand and the aboriginal
peoples of Canada.
As with the broader category of "peoples," indigenous peoples situated within states do not have a general right to independence or
secession from those states under international law,165 but they do have rights amounting to what was discussed above as the right
to internal self-determination.
In a historic development last September 13, 2007, the UN General Assembly adopted the United Nations Declaration on the Rights
of Indigenous Peoples (UN DRIP) through General Assembly Resolution 61/295. The vote was 143 to 4, the Philippines being included
among those in favor, and the four voting against being Australia, Canada, New Zealand, and the U.S. The Declaration clearly
recognized the right of indigenous peoples to self-determination, encompassing the right to autonomy or self-government, to wit:
Article 3
Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely
pursue their economic, social and cultural development.
Article 4
Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating
to their internal and local affairs, as well as ways and means for financing their autonomous functions.
Article 5
Indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions,
while retaining their right to participate fully, if they so choose, in the political, economic, social and cultural life of the State.
Self-government, as used in international legal discourse pertaining to indigenous peoples, has been understood as equivalent to
"internal self-determination." The extent of self-determination provided for in the UN DRIP is more particularly defined in its
subsequent articles, some of which are quoted hereunder:
Article 8
1. Indigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their culture.
2. States shall provide effective mechanisms for prevention of, and redress for:
(a) Any action which has the aim or effect of depriving them of their integrity as distinct peoples, or of their cultural values or ethnic
identities;
(b) Any action which has the aim or effect of dispossessing them of their lands, territories or resources;
(c) Any form of forced population transfer which has the aim or effect of violating or undermining any of their rights;
(d) Any form of forced assimilation or integration;
(e) Any form of propaganda designed to promote or incite racial or ethnic discrimination directed against them.
Article 21
1. Indigenous peoples have the right, without discrimination, to the improvement of their economic and social conditions, including,
inter alia, in the areas of education, employment, vocational training and retraining, housing, sanitation, health and social security.
2. States shall take effective measures and, where appropriate, special measures to ensure continuing improvement of their
economic and social conditions. Particular attention shall be paid to the rights and special needs of indigenous elders, women,
youth, children and persons with disabilities.
Article 26
1. Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or
otherwise used or acquired.
2. Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by
reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired.
3. States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted
with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.
Article 30
1. Military activities shall not take place in the lands or territories of indigenous peoples, unless justified by a relevant public interest
or otherwise freely agreed with or requested by the indigenous peoples concerned.
2. States shall undertake effective consultations with the indigenous peoples concerned, through appropriate procedures and in
particular through their representative institutions, prior to using their lands or territories for military activities.
Article 32
1. Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or
territories and other resources.
2. States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative
institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories
and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other
resources.
3. States shall provide effective mechanisms for just and fair redress for any such activities, and appropriate measures shall be taken
to mitigate adverse environmental, economic, social, cultural or spiritual impact.
Article 3
1. Indigenous peoples have the right to the recognition, observance and enforcement of treaties, agreements and other constructive
arrangements concluded with States or their successors and to have States honour and respect such treaties, agreements and other
constructive arrangements.
2. Nothing in this Declaration may be interpreted as diminishing or eliminating the rights of indigenous peoples contained in treaties,
agreements and other constructive arrangements.
Article 38
States in consultation and cooperation with indigenous peoples, shall take the appropriate measures, including legislative measures,
to achieve the ends of this Declaration.
Assuming that the UN DRIP, like the Universal Declaration on Human Rights, must now be regarded as embodying customary
international law - a question which the Court need not definitively resolve here - the obligations enumerated therein do not strictly
require the Republic to grant the Bangsamoro people, through the instrumentality of the BJE, the particular rights and powers
provided for in the MOA-AD. Even the more specific provisions of the UN DRIP are general in scope, allowing for flexibility in its
application by the different States.
There is, for instance, no requirement in the UN DRIP that States now guarantee indigenous peoples their own police and internal
security force. Indeed, Article 8 presupposes that it is the State which will provide protection for indigenous peoples against acts like
the forced dispossession of their lands - a function that is normally performed by police officers. If the protection of a right so
essential to indigenous people's identity is acknowledged to be the responsibility of the State, then surely the protection of rights
less significant to them as such peoples would also be the duty of States. Nor is there in the UN DRIP an acknowledgement of the
right of indigenous peoples to the aerial domain and atmospheric space. What it upholds, in Article 26 thereof, is the right of
indigenous peoples to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or
acquired.
Moreover, the UN DRIP, while upholding the right of indigenous peoples to autonomy, does not obligate States to grant indigenous
peoples the near-independent status of an associated state. All the rights recognized in that document are qualified in Article 46 as
follows:
1. Nothing in this Declaration may be interpreted as implying for any State, people, group or person any right to engage in any
activity or to perform any act contrary to the Charter of the United Nations or construed as authorizing or encouraging any action
which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States.
Even if the UN DRIP were considered as part of the law of the land pursuant to Article II, Section 2 of the Constitution, it would not
suffice to uphold the validity of the MOA-AD so as to render its compliance with other laws unnecessary.
It is, therefore, clear that the MOA-AD contains numerous provisions that cannot be reconciled with the Constitution and the laws as
presently worded. Respondents proffer, however, that the signing of the MOA-AD alone would not have entailed any violation of
law or grave abuse of discretion on their part, precisely because it stipulates that the provisions thereof inconsistent with the laws
shall not take effect until these laws are amended. They cite paragraph 7 of the MOA-AD strand on GOVERNANCE quoted earlier,
but which is reproduced below for convenience:
7. The Parties agree that the mechanisms and modalities for the actual implementation of this MOA-AD shall be spelt out in the
Comprehensive Compact to mutually take such steps to enable it to occur effectively.
Any provisions of the MOA-AD requiring amendments to the existing legal framework shall come into force upon signing of a
Comprehensive Compact and upon effecting the necessary changes to the legal framework with due regard to non derogation of
prior agreements and within the stipulated timeframe to be contained in the Comprehensive Compact.
Indeed, the foregoing stipulation keeps many controversial provisions of the MOA-AD from coming into force until the necessary
changes to the legal framework are effected. While the word "Constitution" is not mentioned in the provision now under
consideration or anywhere else in the MOA-AD, the term "legal framework" is certainly broad enough to include the Constitution.
Notwithstanding the suspensive clause, however, respondents, by their mere act of incorporating in the MOA-AD the provisions
thereof regarding the associative relationship between the BJE and the Central Government, have already violated the
Memorandum of Instructions From The President dated March 1, 2001, which states that the "negotiations shall be conducted in
accordance with x x x the principles of the sovereignty and territorial integrity of the Republic of the Philippines." (Emphasis
supplied) Establishing an associative relationship between the BJE and the Central Government is, for the reasons already discussed,
a preparation for independence, or worse, an implicit acknowledgment of an independent status already prevailing.
Even apart from the above-mentioned Memorandum, however, the MOA-AD is defective because the suspensive clause is invalid, as
discussed below.
The authority of the GRP Peace Negotiating Panel to negotiate with the MILF is founded on E.O. No. 3, Section 5(c), which states that
there shall be established Government Peace Negotiating Panels for negotiations with different rebel groups to be "appointed by
the President as her official emissaries to conduct negotiations, dialogues, and face-to-face discussions with rebel groups." These
negotiating panels are to report to the President, through the PAPP on the conduct and progress of the negotiations.
It bears noting that the GRP Peace Panel, in exploring lasting solutions to the Moro Problem through its negotiations with the MILF,
was not restricted by E.O. No. 3 only to those options available under the laws as they presently stand. One of the components of a
comprehensive peace process, which E.O. No. 3 collectively refers to as the "Paths to Peace," is the pursuit of social, economic, and
political reforms which may require new legislation or even constitutional amendments. Sec. 4(a) of E.O. No. 3, which reiterates
Section 3(a), of E.O. No. 125,167 states:
SECTION 4. The Six Paths to Peace. - The components of the comprehensive peace process comprise the processes known as the
"Paths to Peace". These component processes are interrelated and not mutually exclusive, and must therefore be pursued
simultaneously in a coordinated and integrated fashion. They shall include, but may not be limited to, the following:
a. PURSUIT OF SOCIAL, ECONOMIC AND POLITICAL REFORMS. This component involves the vigorous implementation of various
policies, reforms, programs and projects aimed at addressing the root causes of internal armed conflicts and social unrest. This may
require administrative action, new legislation or even constitutional amendments.x x x x (Emphasis supplied)
The MOA-AD, therefore, may reasonably be perceived as an attempt of respondents to address, pursuant to this provision of E.O.
No. 3, the root causes of the armed conflict in Mindanao. The E.O. authorized them to "think outside the box," so to speak. Hence,
they negotiated and were set on signing the MOA-AD that included various social, economic, and political reforms which cannot,
however, all be accommodated within the present legal framework, and which thus would require new legislation and constitutional
amendments.
The inquiry on the legality of the "suspensive clause," however, cannot stop here, because it must be asked whether the President
herself may exercise the power delegated to the GRP Peace Panel under E.O. No. 3, Sec. 4(a).
The President cannot delegate a power that she herself does not possess. May the President, in the course of peace negotiations,
agree to pursue reforms that would require new legislation and constitutional amendments, or should the reforms be restricted only
to those solutions which the present laws allow? The answer to this question requires a discussion of the extent of the President's
power to conduct peace negotiations.
That the authority of the President to conduct peace negotiations with rebel groups is not explicitly mentioned in the Constitution
does not mean that she has no such authority. In Sanlakas v. Executive Secretary, in issue was the authority of the President to
declare a state of rebellion - an authority which is not expressly provided for in the Constitution. The Court held thus:
"In her ponencia in Marcos v. Manglapus, Justice Cortes put her thesis into jurisprudence. There, the Court, by a slim 8-7 margin,
upheld the President's power to forbid the return of her exiled predecessor. The rationale for the majority's ruling rested on the
President's
. . . unstated residual powers which are implied from the grant of executive power and which are necessary for her to comply with
her duties under the Constitution. The powers of the President are not limited to what are expressly enumerated in the article on
the Executive Department and in scattered provisions of the Constitution. This is so, notwithstanding the avowed intent of the
members of the Constitutional Commission of 1986 to limit the powers of the President as a reaction to the abuses under the
regime of Mr. Marcos, for the result was a limitation of specific powers of the President, particularly those relating to the
commander-in-chief clause, but not a diminution of the general grant of executive power.
Thus, the President's authority to declare a state of rebellion springs in the main from her powers as chief executive and, at the
same time, draws strength from her Commander-in-Chief powers. x x x (Emphasis and underscoring supplied)
Similarly, the President's power to conduct peace negotiations is implicitly included in her powers as Chief Executive and
Commander-in-Chief. As Chief Executive, the President has the general responsibility to promote public peace, and as Commander-
in-Chief, she has the more specific duty to prevent and suppress rebellion and lawless violence.
As the experience of nations which have similarly gone through internal armed conflict will show, however, peace is rarely attained
by simply pursuing a military solution. Oftentimes, changes as far-reaching as a fundamental reconfiguration of the nation's
constitutional structure is required. The observations of Dr. Kirsti Samuels are enlightening, to wit:
x x x [T]he fact remains that a successful political and governance transition must form the core of any post-conflict peace-building
mission. As we have observed in Liberia and Haiti over the last ten years, conflict cessation without modification of the political
environment, even where state-building is undertaken through technical electoral assistance and institution- or capacity-building, is
unlikely to succeed. On average, more than 50 percent of states emerging from conflict return to conflict. Moreover, a substantial
proportion of transitions have resulted in weak or limited democracies.
The design of a constitution and its constitution-making process can play an important role in the political and governance
transition. Constitution-making after conflict is an opportunity to create a common vision of the future of a state and a road map on
how to get there. The constitution can be partly a peace agreement and partly a framework setting up the rules by which the new
democracy will operate.
In the same vein, Professor Christine Bell, in her article on the nature and legal status of peace agreements, observed that the typical
way that peace agreements establish or confirm mechanisms for demilitarization and demobilization is by linking them to new
constitutional structures addressing governance, elections, and legal and human rights institutions.
In the Philippine experience, the link between peace agreements and constitution-making has been recognized by no less than the
framers of the Constitution. Behind the provisions of the Constitution on autonomous regions172 is the framers' intention to
implement a particular peace agreement, namely, the Tripoli Agreement of 1976 between the GRP and the MNLF, signed by then
Undersecretary of National Defense Carmelo Z. Barbero and then MNLF Chairman Nur Misuari.
MR. ROMULO. There are other speakers; so, although I have some more questions, I will reserve my right to ask them if they are not
covered by the other speakers. I have only two questions.
I heard one of the Commissioners say that local autonomy already exists in the Muslim region; it is working very well; it has, in fact,
diminished a great deal of the problems. So, my question is: since that already exists, why do we have to go into something new?
MR. OPLE. May I answer that on behalf of Chairman Nolledo. Commissioner Yusup Abubakar is right that certain definite steps have
been taken to implement the provisions of the Tripoli Agreement with respect to an autonomous region in Mindanao. This is a good
first step, but there is no question that this is merely a partial response to the Tripoli Agreement itself and to the fuller standard of
regional autonomy contemplated in that agreement, and now by state policy.(Emphasis supplied)
The constitutional provisions on autonomy and the statutes enacted pursuant to them have, to the credit of their drafters, been
partly successful. Nonetheless, the Filipino people are still faced with the reality of an on-going conflict between the Government
and the MILF. If the President is to be expected to find means for bringing this conflict to an end and to achieve lasting peace in
Mindanao, then she must be given the leeway to explore, in the course of peace negotiations, solutions that may require changes to
the Constitution for their implementation. Being uniquely vested with the power to conduct peace negotiations with rebel groups,
the President is in a singular position to know the precise nature of their grievances which, if resolved, may bring an end to
hostilities.
The President may not, of course, unilaterally implement the solutions that she considers viable, but she may not be prevented from
submitting them as recommendations to Congress, which could then, if it is minded, act upon them pursuant to the legal procedures
for constitutional amendment and revision. In particular, Congress would have the option, pursuant to Article XVII, Sections 1 and 3
of the Constitution, to propose the recommended amendments or revision to the people, call a constitutional convention, or submit
to the electorate the question of calling such a convention.
While the President does not possess constituent powers - as those powers may be exercised only by Congress, a Constitutional
Convention, or the people through initiative and referendum - she may submit proposals for constitutional change to Congress in a
manner that does not involve the arrogation of constituent powers.
In Sanidad v. COMELEC, in issue was the legality of then President Marcos' act of directly submitting proposals for constitutional
amendments to a referendum, bypassing the interim National Assembly which was the body vested by the 1973 Constitution with
the power to propose such amendments. President Marcos, it will be recalled, never convened the interim National Assembly. The
majority upheld the President's act, holding that "the urges of absolute necessity" compelled the President as the agent of the
people to act as he did, there being no interim National Assembly to propose constitutional amendments. Against this ruling,
Justices Teehankee and Muñoz Palma vigorously dissented. The Court's concern at present, however, is not with regard to the point
on which it was then divided in that controversial case, but on that which was not disputed by either side.
Justice Teehankee's dissent, in particular, bears noting. While he disagreed that the President may directly submit proposed
constitutional amendments to a referendum, implicit in his opinion is a recognition that he would have upheld the President's action
along with the majority had the President convened the interim National Assembly and coursed his proposals through it. Thus
Justice Teehankee opined:
"Since the Constitution provides for the organization of the essential departments of government, defines and delimits the powers
of each and prescribes the manner of the exercise of such powers, and the constituent power has not been granted to but has been
withheld from the President or Prime Minister, it follows that the President's questioned decrees proposing and submitting
constitutional amendments directly to the people (without the intervention of the interim National Assembly in whom the power is
expressly vested) are devoid of constitutional and legal basis." (Emphasis supplied)
From the foregoing discussion, the principle may be inferred that the President - in the course of conducting peace negotiations -
may validly consider implementing even those policies that require changes to the Constitution, but she may not unilaterally
implement them without the intervention of Congress, or act in any way as if the assent of that body were assumed as a certainty.
Since, under the present Constitution, the people also have the power to directly propose amendments through initiative and
referendum, the President may also submit her recommendations to the people, not as a formal proposal to be voted on in a
plebiscite similar to what President Marcos did in Sanidad, but for their independent consideration of whether these
recommendations merit being formally proposed through initiative.
These recommendations, however, may amount to nothing more than the President's suggestions to the people, for any further
involvement in the process of initiative by the Chief Executive may vitiate its character as a genuine "people's initiative." The only
initiative recognized by the Constitution is that which truly proceeds from the people. As the Court stated in Lambino v. COMELEC:
"The Lambino Group claims that their initiative is the ‘people's voice.' However, the Lambino Group unabashedly states in ULAP
Resolution No. 2006-02, in the verification of their petition with the COMELEC, that ‘ULAP maintains its unqualified support to the
agenda of Her Excellency President Gloria Macapagal-Arroyo for constitutional reforms.' The Lambino Group thus admits that their
‘people's' initiative is an ‘unqualified support to the agenda' of the incumbent President to change the Constitution. This forewarns
the Court to be wary of incantations of ‘people's voice' or ‘sovereign will' in the present initiative."
It will be observed that the President has authority, as stated in her oath of office, only to preserve and defend the Constitution.
Such presidential power does not, however, extend to allowing her to change the Constitution, but simply to recommend proposed
amendments or revision. As long as she limits herself to recommending these changes and submits to the proper procedure for
constitutional amendments and revision, her mere recommendation need not be construed as an unconstitutional act.
The foregoing discussion focused on the President's authority to propose constitutional amendments, since her authority to propose
new legislation is not in controversy. It has been an accepted practice for Presidents in this jurisdiction to propose new legislation.
One of the more prominent instances the practice is usually done is in the yearly State of the Nation Address of the President to
Congress. Moreover, the annual general appropriations bill has always been based on the budget prepared by the President, which -
for all intents and purposes - is a proposal for new legislation coming from the President.
The "suspensive clause" in the MOA-AD viewed in light of the above-discussed standards
Given the limited nature of the President's authority to propose constitutional amendments, she cannot guarantee to any third
party that the required amendments will eventually be put in place, nor even be submitted to a plebiscite. The most she could do is
submit these proposals as recommendations either to Congress or the people, in whom constituent powers are vested.
Paragraph 7 on Governance of the MOA-AD states, however, that all provisions thereof which cannot be reconciled with the present
Constitution and laws "shall come into force upon signing of a Comprehensive Compact and upon effecting the necessary changes to
the legal framework." This stipulation does not bear the marks of a suspensive condition - defined in civil law as a future and
uncertain event - but of a term. It is not a question of whether the necessary changes to the legal framework will be effected, but
when. That there is no uncertainty being contemplated is plain from what follows, for the paragraph goes on to state that the
contemplated changes shall be "with due regard to non derogation of prior agreements and within the stipulated timeframe to be
contained in the Comprehensive Compact."
Pursuant to this stipulation, therefore, it is mandatory for the GRP to effect the changes to the legal framework contemplated in the
MOA-AD - which changes would include constitutional amendments, as discussed earlier. It bears noting that,
By the time these changes are put in place, the MOA-AD itself would be counted among the "prior agreements" from which there
could be no derogation.
What remains for discussion in the Comprehensive Compact would merely be the implementing details for these "consensus points"
and, notably, the deadline for effecting the contemplated changes to the legal framework.
Plainly, stipulation-paragraph 7 on GOVERNANCE is inconsistent with the limits of the President's authority to propose constitutional
amendments, it being a virtual guarantee that the Constitution and the laws of the Republic of the Philippines will certainly be
adjusted to conform to all the "consensus points" found in the MOA-AD. Hence, it must be struck down as unconstitutional.
A comparison between the "suspensive clause" of the MOA-AD with a similar provision appearing in the 1996 final peace agreement
between the MNLF and the GRP is most instructive.
As a backdrop, the parties to the 1996 Agreement stipulated that it would be implemented in two phases. Phase I covered a three-
year transitional period involving the putting up of new administrative structures through Executive Order, such as the Special Zone
of Peace and Development (SZOPAD) and the Southern Philippines Council for Peace and Development (SPCPD), while Phase II
covered the establishment of the new regional autonomous government through amendment or repeal of R.A. No. 6734, which was
then the Organic Act of the ARMM.
The stipulations on Phase II consisted of specific agreements on the structure of the expanded autonomous region envisioned by the
parties. To that extent, they are similar to the provisions of the MOA-AD. There is, however, a crucial difference between the two
agreements. While the MOA-AD virtually guarantees that the "necessary changes to the legal framework" will be put in place, the
GRP-MNLF final peace agreement states thus: "Accordingly, these provisions [on Phase II] shall be recommended by the GRP to
Congress for incorporation in the amendatory or repealing law."
Concerns have been raised that the MOA-AD would have given rise to a binding international law obligation on the part of the
Philippines to change its Constitution in conformity thereto, on the ground that it may be considered either as a binding agreement
under international law, or a unilateral declaration of the Philippine government to the international community that it would grant
to the Bangsamoro people all the concessions therein stated. Neither ground finds sufficient support in international law, however.
The MOA-AD, as earlier mentioned in the overview thereof, would have included foreign dignitaries as signatories. In addition,
representatives of other nations were invited to witness its signing in Kuala Lumpur. These circumstances readily lead one to surmise
that the MOA-AD would have had the status of a binding international agreement had it been signed. An examination of the
prevailing principles in international law, however, leads to the contrary conclusion.
The Decision on Challenge to Jurisdiction: Lomé Accord Amnesty180 (the Lomé Accord case) of the Special Court of Sierra Leone is
enlightening. The Lomé Accord was a peace agreement signed on July 7, 1999 between the Government of Sierra Leone and the
Revolutionary United Front (RUF), a rebel group with which the Sierra Leone Government had been in armed conflict for around
eight years at the time of signing. There were non-contracting signatories to the agreement, among which were the Government of
the Togolese Republic, the Economic Community of West African States, and the UN.
On January 16, 2002, after a successful negotiation between the UN Secretary-General and the Sierra Leone Government, another
agreement was entered into by the UN and that Government whereby the Special Court of Sierra Leone was established. The sole
purpose of the Special Court, an international court, was to try persons who bore the greatest responsibility for serious violations of
international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since November 30, 1996.
Among the stipulations of the Lomé Accord was a provision for the full pardon of the members of the RUF with respect to anything
done by them in pursuit of their objectives as members of that organization since the conflict began.
In the Lomé Accord case, the Defence argued that the Accord created an internationally binding obligation not to prosecute the
beneficiaries of the amnesty provided therein, citing, among other things, the participation of foreign dignitaries and international
organizations in the finalization of that agreement. The Special Court, however, rejected this argument, ruling that the Lome Accord
is not a treaty and that it can only create binding obligations and rights between the parties in municipal law, not in international
law. Hence, the Special Court held, it is ineffective in depriving an international court like it of jurisdiction.
"37. In regard to the nature of a negotiated settlement of an internal armed conflict it is easy to assume and to argue with some
degree of plausibility, as Defence counsel for the defendants seem to have done, that the mere fact that in addition to the parties to
the conflict, the document formalizing the settlement is signed by foreign heads of state or their representatives and
representatives of international organizations, means the agreement of the parties is internationalized so as to create obligations in
international law. x x x x
40. Almost every conflict resolution will involve the parties to the conflict and the mediator or facilitator of the settlement, or
persons or bodies under whose auspices the settlement took place but who are not at all parties to the conflict, are not contracting
parties and who do not claim any obligation from the contracting parties or incur any obligation from the settlement.
41. In this case, the parties to the conflict are the lawful authority of the State and the RUF which has no status of statehood and is
to all intents and purposes a faction within the state. The non-contracting signatories of the Lomé Agreement were moral
guarantors of the principle that, in the terms of Article XXXIV of the Agreement, "this peace agreement is implemented with integrity
and in good faith by both parties". The moral guarantors assumed no legal obligation. It is recalled that the UN by its representative
appended, presumably for avoidance of doubt, an understanding of the extent of the agreement to be implemented as not including
certain international crimes.
42. An international agreement in the nature of a treaty must create rights and obligations regulated by international law so that a
breach of its terms will be a breach determined under international law which will also provide principle means of enforcement. The
Lomé Agreement created neither rights nor obligations capable of being regulated by international law. An agreement such as the
Lomé Agreement which brings to an end an internal armed conflict no doubt creates a factual situation of restoration of peace that
the international community acting through the Security Council may take note of. That, however, will not convert it to an
international agreement which creates an obligation enforceable in international, as distinguished from municipal, law. A breach of
the terms of such a peace agreement resulting in resumption of internal armed conflict or creating a threat to peace in the
determination of the Security Council may indicate a reversal of the factual situation of peace to be visited with possible legal
consequences arising from the new situation of conflict created. Such consequences such as action by the Security Council pursuant
to Chapter VII arise from the situation and not from the agreement, nor from the obligation imposed by it. Such action cannot be
regarded as a remedy for the breach. A peace agreement which settles an internal armed conflict cannot be ascribed the same
status as one which settles an international armed conflict which, essentially, must be between two or more warring States. The
Lomé Agreement cannot be characterised as an international instrument. x x x" (Emphasis, italics and underscoring supplied)
Similarly, that the MOA-AD would have been signed by representatives of States and international organizations not parties to the
Agreement would not have sufficed to vest in it a binding character under international law.
In another vein, concern has been raised that the MOA-AD would amount to a unilateral declaration of the Philippine State, binding
under international law, that it would comply with all the stipulations stated therein, with the result that it would have to amend its
Constitution accordingly regardless of the true will of the people. Cited as authority for this view is Australia v. France,181 also
known as the Nuclear Tests Case, decided by the International Court of Justice (ICJ).
In the Nuclear Tests Case, Australia challenged before the ICJ the legality of France's nuclear tests in the South Pacific. France
refused to appear in the case, but public statements from its President, and similar statements from other French officials including
its Minister of Defence, that its 1974 series of atmospheric tests would be its last, persuaded the ICJ to dismiss the case.182 Those
statements, the ICJ held, amounted to a legal undertaking addressed to the international community, which required no acceptance
from other States for it to become effective.
Essential to the ICJ ruling is its finding that the French government intended to be bound to the international community in issuing
its public statements, viz:
43. It is well recognized that declarations made by way of unilateral acts, concerning legal or factual situations, may have the effect
of creating legal obligations. Declarations of this kind may be, and often are, very specific. When it is the intention of the State
making the declaration that it should become bound according to its terms, that intention confers on the declaration the character
of a legal undertaking, the State being thenceforth legally required to follow a course of conduct consistent with the declaration. An
undertaking of this kind, if given publicly, and with an intent to be bound, even though not made within the context of international
negotiations, is binding. In these circumstances, nothing in the nature of a quid pro quo nor any subsequent acceptance of the
declaration, nor even any reply or reaction from other States, is required for the declaration to take effect, since such a requirement
would be inconsistent with the strictly unilateral nature of the juridical act by which the pronouncement by the State was made.
44. Of course, not all unilateral acts imply obligation; but a State may choose to take up a certain position in relation to a particular
matter with the intention of being bound-the intention is to be ascertained by interpretation of the act. When States make
statements by which their freedom of action is to be limited, a restrictive interpretation is called for.
xxxx
51. In announcing that the 1974 series of atmospheric tests would be the last, the French Government conveyed to the world at
large, including the Applicant, its intention effectively to terminate these tests. It was bound to assume that other States might take
note of these statements and rely on their being effective. The validity of these statements and their legal consequences must be
considered within the general framework of the security of international intercourse, and the confidence and trust which are so
essential in the relations among States. It is from the actual substance of these statements, and from the circumstances attending
their making, that the legal implications of the unilateral act must be deduced. The objects of these statements are clear and they
were addressed to the international community as a whole, and the Court holds that they constitute an undertaking possessing legal
effect. The Court considers *270 that the President of the Republic, in deciding upon the effective cessation of atmospheric tests,
gave an undertaking to the international community to which his words were addressed. x x x (Emphasis and underscoring supplied)
As gathered from the above-quoted ruling of the ICJ, public statements of a state representative may be construed as a unilateral
declaration only when the following conditions are present: the statements were clearly addressed to the international community,
the state intended to be bound to that community by its statements, and that not to give legal effect to those statements would be
detrimental to the security of international intercourse. Plainly, unilateral declarations arise only in peculiar circumstances.
The limited applicability of the Nuclear Tests Case ruling was recognized in a later case decided by the ICJ entitled Burkina Faso v.
Mali, also known as the Case Concerning the Frontier Dispute. The public declaration subject of that case was a statement made by
the President of Mali, in an interview by a foreign press agency, that Mali would abide by the decision to be issued by a commission
of the Organization of African Unity on a frontier dispute then pending between Mali and Burkina Faso.
Unlike in the Nuclear Tests Case, the ICJ held that the statement of Mali's President was not a unilateral act with legal implications. It
clarified that its ruling in the Nuclear Tests case rested on the peculiar circumstances surrounding the French declaration subject
thereof, to wit:
40. In order to assess the intentions of the author of a unilateral act, account must be taken of all the factual circumstances in which
the act occurred. For example, in the Nuclear Tests cases, the Court took the view that since the applicant States were not the only
ones concerned at the possible continuance of atmospheric testing by the French Government, that Government's unilateral
declarations had ‘conveyed to the world at large, including the Applicant, its intention effectively to terminate these tests‘ (I.C.J.
Reports 1974, p. 269, para. 51; p. 474, para. 53). In the particular circumstances of those cases, the French Government could not
express an intention to be bound otherwise than by unilateral declarations. It is difficult to see how it could have accepted the terms
of a negotiated solution with each of the applicants without thereby jeopardizing its contention that its conduct was lawful. The
circumstances of the present case are radically different. Here, there was nothing to hinder the Parties from manifesting an
intention to accept the binding character of the conclusions of the Organization of African Unity Mediation Commission by the
normal method: a formal agreement on the basis of reciprocity. Since no agreement of this kind was concluded between the Parties,
the Chamber finds that there are no grounds to interpret the declaration made by Mali's head of State on 11 April 1975 as a
unilateral act with legal implications in regard to the present case. (Emphasis and underscoring supplied)
Assessing the MOA-AD in light of the above criteria, it would not have amounted to a unilateral declaration on the part of the
Philippine State to the international community. The Philippine panel did not draft the same with the clear intention of being bound
thereby to the international community as a whole or to any State, but only to the MILF. While there were States and international
organizations involved, one way or another, in the negotiation and projected signing of the MOA-AD, they participated merely as
witnesses or, in the case of Malaysia, as facilitator. As held in the Lomé Accord case, the mere fact that in addition to the parties to
the conflict, the peace settlement is signed by representatives of states and international organizations does not mean that the
agreement is internationalized so as to create obligations in international law.
Since the commitments in the MOA-AD were not addressed to States, not to give legal effect to such commitments would not be
detrimental to the security of international intercourse - to the trust and confidence essential in the relations among States.
In one important respect, the circumstances surrounding the MOA-AD are closer to that of Burkina Faso wherein, as already
discussed, the Mali President's statement was not held to be a binding unilateral declaration by the ICJ. As in that case, there was
also nothing to hinder the Philippine panel, had it really been its intention to be bound to other States, to manifest that intention by
formal agreement. Here, that formal agreement would have come about by the inclusion in the MOA-AD of a clear commitment to
be legally bound to the international community, not just the MILF, and by an equally clear indication that the signatures of the
participating states-representatives would constitute an acceptance of that commitment. Entering into such a formal agreement
would not have resulted in a loss of face for the Philippine government before the international community, which was one of the
difficulties that prevented the French Government from entering into a formal agreement with other countries. That the Philippine
panel did not enter into such a formal agreement suggests that it had no intention to be bound to the international community. On
that ground, the MOA-AD may not be considered a unilateral declaration under international law.
The MOA-AD not being a document that can bind the Philippines under international law notwithstanding, respondents' almost
consummated act of guaranteeing amendments to the legal framework is, by itself, sufficient to constitute grave abuse of discretion.
The grave abuse lies not in the fact that they considered, as a solution to the Moro Problem, the creation of a state within a state,
but in their brazen willingness to guarantee that Congress and the sovereign Filipino people would give their imprimatur to their
solution. Upholding such an act would amount to authorizing a usurpation of the constituent powers vested only in Congress, a
Constitutional Convention, or the people themselves through the process of initiative, for the only way that the Executive can ensure
the outcome of the amendment process is through an undue influence or interference with that process.
The sovereign people may, if it so desired, go to the extent of giving up a portion of its own territory to the Moros for the sake of
peace, for it can change the Constitution in any it wants, so long as the change is not inconsistent with what, in international law, is
known as Jus Cogens.184 Respondents, however, may not preempt it in that decision.
SUMMARY
The petitions are ripe for adjudication. The failure of respondents to consult the local government units or communities affected
constitutes a departure by respondents from their mandate under E.O. No. 3. Moreover, respondents exceeded their authority by
the mere act of guaranteeing amendments to the Constitution. Any alleged violation of the Constitution by any branch of
government is a proper matter for judicial review.
As the petitions involve constitutional issues which are of paramount public interest or of transcendental importance, the Court
grants the petitioners, petitioners-in-intervention and intervening respondents the requisite locus standi in keeping with the liberal
stance adopted in David v. Macapagal-Arroyo.
Contrary to the assertion of respondents that the non-signing of the MOA-AD and the eventual dissolution of the GRP Peace Panel
mooted the present petitions, the Court finds that the present petitions provide an exception to the "moot and academic" principle
in view of (a) the grave violation of the Constitution involved; (b) the exceptional character of the situation and paramount public
interest; (c) the need to formulate controlling principles to guide the bench, the bar, and the public; and (d) the fact that the case is
capable of repetition yet evading review.
The MOA-AD is a significant part of a series of agreements necessary to carry out the GRP-MILF Tripoli Agreement on Peace signed
by the government and the MILF back in June 2001. Hence, the present MOA-AD can be renegotiated or another one drawn up that
could contain similar or significantly dissimilar provisions compared to the original.
The Court, however, finds that the prayers for mandamus have been rendered moot in view of the respondents' action in providing
the Court and the petitioners with the official copy of the final draft of the MOA-AD and its annexes.
The people's right to information on matters of public concern under Sec. 7, Article III of the Constitution is in splendid symmetry
with the state policy of full public disclosure of all its transactions involving public interest under Sec. 28, Article II of the
Constitution. The right to information guarantees the right of the people to demand information, while Section 28 recognizes the
duty of officialdom to give information even if nobody demands. The complete and effective exercise of the right to information
necessitates that its complementary provision on public disclosure derive the same self-executory nature, subject only to reasonable
safeguards or limitations as may be provided by law.
The contents of the MOA-AD is a matter of paramount public concern involving public interest in the highest order. In declaring that
the right to information contemplates steps and negotiations leading to the consummation of the contract, jurisprudence finds no
distinction as to the executory nature or commercial character of the agreement.
An essential element of these twin freedoms is to keep a continuing dialogue or process of communication between the government
and the people. Corollary to these twin rights is the design for feedback mechanisms. The right to public consultation was envisioned
to be a species of these public rights.
At least three pertinent laws animate these constitutional imperatives and justify the exercise of the people's right to be consulted
on relevant matters relating to the peace agenda.
One, E.O. No. 3 itself is replete with mechanics for continuing consultations on both national and local levels and for a principal
forum for consensus-building. In fact, it is the duty of the Presidential Adviser on the Peace Process to conduct regular dialogues to
seek relevant information, comments, advice, and recommendations from peace partners and concerned sectors of society.
Two, Republic Act No. 7160 or the Local Government Code of 1991 requires all national offices to conduct consultations before any
project or program critical to the environment and human ecology including those that may call for the eviction of a particular group
of people residing in such locality, is implemented therein. The MOA-AD is one peculiar program that unequivocally and unilaterally
vests ownership of a vast territory to the Bangsamoro people, which could pervasively and drastically result to the diaspora or
displacement of a great number of inhabitants from their total environment.
Three, Republic Act No. 8371 or the Indigenous Peoples Rights Act of 1997 provides for clear-cut procedure for the recognition and
delineation of ancestral domain, which entails, among other things, the observance of the free and prior informed consent of the
Indigenous Cultural Communities/Indigenous Peoples. Notably, the statute does not grant the Executive Department or any
government agency the power to delineate and recognize an ancestral domain claim by mere agreement or compromise.
The invocation of the doctrine of executive privilege as a defense to the general right to information or the specific right to
consultation is untenable. The various explicit legal provisions fly in the face of executive secrecy. In any event, respondents
effectively waived such defense after it unconditionally disclosed the official copies of the final draft of the MOA-AD, for judicial
compliance and public scrutiny.
In sum, the Presidential Adviser on the Peace Process committed grave abuse of discretion when he failed to carry out the pertinent
consultation process, as mandated by E.O. No. 3, Republic Act No. 7160, and Republic Act No. 8371. The furtive process by which the
MOA-AD was designed and crafted runs contrary to and in excess of the legal authority, and amounts to a whimsical, capricious,
oppressive, arbitrary and despotic exercise thereof. It illustrates a gross evasion of positive duty and a virtual refusal to perform the
duty enjoined.
The MOA-AD cannot be reconciled with the present Constitution and laws. Not only its specific provisions but the very concept
underlying them, namely, the associative relationship envisioned between the GRP and the BJE, are unconstitutional, for the
concept presupposes that the associated entity is a state and implies that the same is on its way to independence.
While there is a clause in the MOA-AD stating that the provisions thereof inconsistent with the present legal framework will not be
effective until that framework is amended, the same does not cure its defect. The inclusion of provisions in the MOA-AD establishing
an associative relationship between the BJE and the Central Government is, itself, a violation of the Memorandum of Instructions
From The President dated March 1, 2001, addressed to the government peace panel. Moreover, as the clause is worded, it virtually
guarantees that the necessary amendments to the Constitution and the laws will eventually be put in place. Neither the GRP Peace
Panel nor the President herself is authorized to make such a guarantee. Upholding such an act would amount to authorizing a
usurpation of the constituent powers vested only in Congress, a Constitutional Convention, or the people themselves through the
process of initiative, for the only way that the Executive can ensure the outcome of the amendment process is through an undue
influence or interference with that process.
While the MOA-AD would not amount to an international agreement or unilateral declaration binding on the Philippines under
international law, respondents' act of guaranteeing amendments is, by itself, already a constitutional violation that renders the
MOA-AD fatally defective.
WHEREFORE, respondents' motion to dismiss is DENIED. The main and intervening petitions are GIVEN DUE COURSE and hereby
GRANTED.
The Memorandum of Agreement on the Ancestral Domain Aspect of the GRP-MILF Tripoli Agreement on Peace of 2001 is declared
contrary to law and the Constitution.
SO ORDERED.