1. Prof. Merlin Magalona, et al., Petitioners, vs Hon.

Eduardo Ermita in his capacity as Executive

Secretary, et al., Respondents.
G.R. No. 187167 16 August 2011

FACTS
In 1961, Congress passed R.A. 3046 demarcating the maritime baselines of the Philippines as an Archepelagic State
pursuant to UNCLOS I of 9158, codifying the sovereignty of State parties over their territorial sea. Then in 1968, it
was amended by R.A. 5446, correcting some errors in R.A. 3046 reserving the drawing of baselines around Sabah.

In March 2009, R.A. 9522, amending RA 5446, was enacted by the Congress to comply with the terms of the United
Nations Convention on the Law of the Sea (UNCLOS III), which the Philippines ratified on February 27, 1984. The
requirements complied with are: to shorten one baseline, to optimize the location of some basepoints and classify
KIG and Scarborough Shoal as ‘regime of islands’.

Professor Merlin Magallona et al, in their capacity as taxpayer, citizen and legislator, questioned the validity of RA
9522 as they contend, among others, that the law decreased the national territory of the Philippines. Some of their
particular arguments are as follows:

RA 9522 reduces Philippine maritime territory, and logically, the reach of the Philippine state’s sovereign power, in
violation of Article 1 of the 1987 Constitution, embodying the terms of the Treaty of Paris and ancillary treaties.

RA 9522 opens the country’s waters landward of the baselines to maritime passage by all vessels and aircrafts,
undermining Philippine sovereignty and national security, contravening the country’s nuclear-free policy, and
damaging marine resources, in violation of relevant constitutional provisions.

RA 9522’s treatmentof the KIG as “regime of islands” not only results in the loss of a large maritime area but also
prejudices the livelihood of subsistence fishermen.

Hence, petitioners files action for the writs of certiorari and prohibition assails the constitutionality of Republic Act No.
95221 (RA 9522) adjusting the country’s archipelagic baselines and classifying the baseline regime of nearby
territories.

ISSUE
1. WON the petitioners have locus standi to bring the suit
2. WON RA 9522, the amendatory Philippine Baseline Law is unconstitutional.

HELD
1. The SC ruled the suit is not a taxpayer or legislator, but as a citizen suit, since it is the citizens who will be directly
injured and benefitted in affording relief over the remedy sought.

2. The SC upHeld the constitutionality of RA 9522.

First, RA 9522 did not delineate the territory the Philippines but is merely a statutory tool to demarcate the country’s
maritime zone and continental shelf under UNCLOS III. SC emphasized that UNCLOS III is not a mode of acquiring or
losing a territory as provided under the laws of nations. UNCLOS III is a multi-lateral treaty that is a result of a long-
time negotiation to establish a uniform sea-use rights over maritime zones (i.e., the territorial waters [12 nautical
miles from the baselines], contiguous zone [24 nautical miles from the baselines], exclusive economic zone [200
nautical miles from the baselines]), and continental shelves. In order to measure said distances, it is a must for the
state parties to have their archipelagic doctrines measured in accordance to the treaty—the role played by RA 9522.
The contention of the petitioner that RA 9522 resulted to the loss of 15,000 square nautical miles is devoid of merit.
The truth is, RA 9522, by optimizing the location of base points, increased the Philippines total maritime space of
145,216 square nautical miles.

Additionally, The Court finds that the conversion of internal waters into archipelagic waters will not risk the
Philippines as affirmed in the Article 49 of the UNCLOS III, an archipelagic State has sovereign power that extends to
the waters enclosed by the archipelagic baselines, regardless of their depth or distance from the coast. It is further
stated that the regime of archipelagic sea lanes passage will not affect the status of its archipelagic waters or the
exercise of sovereignty over waters and air space, bed and subsoil and the resources therein.
If passages is the Issue, domestically, the legislature can enact legislation designating routes within the archipelagic
waters to regulate innocent and sea lanes passages. But in the absence of such, international law norms operate.

The fact that for archipelagic states, their waters are subject to both passages does not place them in lesser footing
vis a vis continental coastal states. Moreover, RIOP is a customary international law; no modern state can invoke its
sovereignty to forbid such passage.

Second, the classification of KGI and Scarborough Shoal as Regime of Islands is consistent with the Philippines’
sovereignty. Had RA 9522 enclosed the islands as part of the archipelago, the country will be violating UNCLOS III
since it categorically stated that the length of the baseline shall not exceed 125 nautical miles. So what the legislators
did is to carefully analyze the situation: the country, for decades, had been claiming sovereignty over KGI and
Scarborough Shoal on one hand and on the other hand they had to consider that these are located at non-
appreciable distance from the nearest shoreline of the Philippine archipelago. So, the classification is in accordance
with the Philippines sovereignty and State’s responsible observance of its pacta sunt servanda obligation under
UNCLOS III.

RA 9522 merely followed the basepoints mapped by RA 3046 and in fact, it increased the Phils.’ total maritime space.
Moreover, the law itself commits the Philippines.’ continues claim of sovereignty and jurisdiction over KIG.

If not, it would be a breach to 2 provisions of the UNCLOS III:

Art. 47 (3): ‘drawing of basepoints shall not depart to any appreciable extent from the general configuration
of the archipelago’.

Art 47 (2): the length of baselines shall not exceed 100 mm.

KIG and SS are far from our baselines, if we draw to include them, we’ll breach the rules: that it should follow the
natural configuration of the archipelago.

Third, the new base line introduced by RA 9522 is without prejudice with delineation of the baselines of the territorial
sea around the territory of Sabah, situated in North Borneo, over which the Republic of the Philippines has acquired
dominion and sovereignty.

And lastly, the UNCLOS III and RA 9522 are not incompatible with the Constitution’s delineation of internal waters.
Petitioners contend that RA 9522 transformed the internal waters of the Philippines to archipelagic waters hence
subjecting these waters to the right of innocent and sea lanes passages, exposing the Philippine internal waters to
nuclear and maritime pollution hazards. The Court emphasized that the Philippines exercises sovereignty over the
body of water lying landward of the baselines, including the air space over it and the submarine areas underneath,
regardless whether internal or archipelagic waters. However, sovereignty will not bar the Philippines to comply with
its obligation in maintaining freedom of navigation and the generally accepted principles of international law. It can
be either passed by legislator as a municipal law or in the absence thereof, it is deemed incorporated in the
Philippines law since the right of innocent passage is a customary international law, thus automatically incorporated
thereto.

This does not mean that the states are placed in a lesser footing; it just signifies concession of archipelagic states in
exchange for their right to claim all waters inside the baseline. In fact, the demarcation of the baselines enables the
Philippines to delimit its exclusive economic zone, reserving solely to the Philippines the exploitation of all living and
non-living resources within such zone. Such a maritime delineation binds the international community since the
delineation is in strict observance of UNCLOS III. If the maritime delineation is contrary to UNCLOS III, the
international community will of course reject it and will refuse to be bound by it.

The Court expressed that it is within the Congress who has the prerogative to determine the passing of a law and not
the Court. Moreover, such enactment was necessary in order to comply with the UNCLOS III; otherwise, it shall
backfire on the Philippines for its territory shall be open to seafaring powers to freely enter and exploit the resources
in the waters and submarine areas around our archipelago and it will weaken the country’s case in any international
dispute over Philippine maritime space.
The Court further stressed that the baseline laws are mere mechanisms for the UNCLOS III to precisely describe the
delimitations. It serves as a notice to the international family of states and it is in no way affecting or producing any
effect like enlargement or diminution of territories.

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

The provision of Art I of the 1987 Constitution clearly affirms the archipelagic doctrine, which we connect the
outermost points of our archipelago with straight baselines and consider all the waters enclosed thereby as internal
waters. RA 9522, as a Statutory Tool to Demarcate the Country’s Maritime Zones and Continental Shelf Under
UNCLOS III, gave nothing less than an explicit definition in congruent with the archipelagic doctrine.
2. ISABELITA C. VINUYA, et al. v. THE HONORABLE EXECUTIVE SECRETARY ALBERTO G. ROMULO, et al.

FACTS
This is an original Petition for Certiorari under Rule 65 of the Rules of Court with an application for the issuance of a
writ of preliminary mandatory injunction against the Office of the Executive Secretary, the Secretary of the DFA, the
Secretary of the DOJ, and the OSG.

Petitioners are all members of the MALAYA LOLAS, a non-stock, non-profit organization established for the purpose
of providing aid to the victims of rape by Japanese military forces in the Philippines during the Second World War.

Petitioners narrate that during the Second World War, the Japanese army attacked villages and systematically raped
the women as part of the destruction of the village. Their communities were bombed, houses were looted and
burned, and civilians were publicly tortured, mutilated, and slaughtered. Japanese soldiers forcibly seized the women
and Held them in houses or cells, where they were repeatedly raped, beaten, and abused by Japanese soldiers. As a
result of the actions of their Japanese tormentors, the petitioners have spent their lives in misery, having endured
physical injuries, pain and disability, and mental and emotional suffering.

Petitioners claim that since 1998, they have approached the Executive Department through the DOJ, DFA, and OSG,
requesting assistance in filing a claim against the Japanese officials and military officers who ordered the
establishment of the comfort women stations in the Philippines. However, officials of the Executive Department
declined to assist the petitioners, and took the position that the individual claims of the comfort women for
compensation had already been fully satisfied by Japans compliance with the Peace Treaty between the Philippines
and Japan.

Hence, this petition where petitioners pray for this court to (a) declare that respondents committed grave abuse of
discretion amounting to lack or excess of discretion in refusing to espouse their claims for the crimes against
humanity and war crimes committed against them; and (b) compel the respondents to espouse their claims for
official apology and other forms of reparations against Japan before the International Court of Justice (ICJ) and other
international tribunals.

Respondents maintain that all claims of the Philippines and its nationals relative to the war were dealt with in the San
Francisco Peace Treaty of 1951 and the bilateral Reparations Agreement of 1956..

On January 15, 1997, the Asian Women’s Fund and the Philippine government signed a Memorandum of
Understanding for medical and welfare support programs for former comfort women. Over the next five years, these
were implemented by the Department of Social Welfare and Development.

ISSUE
WON the respondents commit grave abuse of discretion amounting to lack or excess of discretion in refusing to
espouse their claims for the crimes against humanity and war crimes committed against them?

HELD
Petition lacks merit. From a Domestic Law Perspective, the Executive Department has the exclusive prerogative to
determine whether to espouse petitioners’ claims against Japan.

Political questions refer "to those questions which, under the Constitution, are to be decided by the people in their
sovereign capacity, or in regard to which full discretionary authority has been delegated to the legislative or
executive branch of the government. It is concerned with Issues dependent upon the wisdom, not legality of a
particular measure." Certain types of cases often have been found to present political questions. One such category
involves questions of foreign relations. It is well-established that "the conduct of the foreign relations of our
government is committed by the Constitution to the executive and legislative--'the political'--departments of the
government, and the propriety of what may be done in the exercise of this political power is not subject to judicial
inquiry or decision."

Not all cases implicating foreign relations present political questions, and courts certainly possess the authority to
construe or invalidate treaties and executive agreements. However, the question whether the Philippine government
should espouse claims of its nationals against a foreign government is a foreign relations matter, the authority for
which is demonstrably committed by our Constitution not to the courts but to the political branches. In this case, the
Executive Department has already decided that it is to the best interest of the country to waive all claims of its
nationals for reparations against Japan in the Treaty of Peace of 1951.The wisdom of such decision is not for the
courts to question. Neither could petitioners herein assail the said determination by the Executive Department via the
instant petition for certiorari.

The President, not Congress, has the better opportunity of knowing the conditions which prevail in foreign countries,
and especially is this true in time of war. He has his confidential sources of information. He has his agents in the form
of diplomatic, consular and other officials.

The Executive Department has determined that taking up petitioners’ cause would be inimical to our country’s foreign
policy interests, and could disrupt our relations with Japan, thereby creating serious implications for stability in this
region. For the to overturn the Executive Department’s determination would mean an assessment of the foreign
policy judgments by a coordinate political branch to which authority to make that judgment has been constitutionally
committed.

From a municipal law perspective, certiorari will not lie. As a general principle, where such an extraordinary length of
time has lapsed between the treaty’s conclusion and our consideration – the Executive must be given ample
discretion to assess the foreign policy considerations of espousing a claim against Japan, from the standpoint of both
the interests of the petitioners and those of the Republic, and decide on that basis if apologies are sufficient, and
whether further steps are appropriate or necessary.

In the international sphere, traditionally, the only means available for individuals to bring a claim within the
international legal system has been when the individual is able to persuade a government to bring a claim on the
individual’s behalf. By taking up the case of one of its subjects and by resorting to diplomatic action or international
judicial proceedings on his behalf, a State is in reality asserting its own right to ensure, in the person of its subjects,
respect for the rules of international law.

Within the limits prescribed by international law, a State may exercise diplomatic protection by whatever means and
to whatever extent it thinks fit, for it is its own right that the State is asserting. Should the natural or legal person on
whose behalf it is acting consider that their rights are not adequately protected, they have no remedy in international
law. All they can do is resort to national law, if means are available, with a view to furthering their cause or obtaining
redress. All these questions remain within the province of municipal law and do not affect the position internationally.

Even the invocation of jus cogens norms and erga omnes obligations will not alter this analysis. Petitioners have not
shown that the crimes committed by the Japanese army violated jus cogens prohibitions at the time the Treaty of
Peace was signed, or that the duty to prosecute perpetrators of international crimes is an erga omnes obligation or
has attained the status of jus cogens.

The term erga omnes (Latin: in relation to everyone) in international law has been used as a legal term describing
obligations owed by States towards the community of states as a whole. Essential distinction should be drawn
between the obligations of a State towards the international community as a whole, and those arising vis-à-vis
another State in the field of diplomatic protection. By their very nature, the former are the concern of all States. In
view of the importance of the rights involved, all States can be Held to have a legal interest in their protection; they
are obligations erga omnes.

The term “jus cogens” (literally, “compelling law”) refers to norms that command peremptory authority, superseding
conflicting treaties and custom. Jus cogens norms are considered peremptory in the sense that they are mandatory,
do not admit derogation, and can be modified only by general international norms of equivalent authority

WHEREFORE, the Petition is hereby DISMISSED.

3. SENATOR AQUILINO PIMENTEL, JR. et al, vs. OFFICE OF THE EXECUTIVE SECRETARY, HON.
ALBERTO ROMULO, and the DEPARTMENT OF FOREIGN AFFAIRS, represented by HON. BLAS OPLE
G.R. No. 158088 July 6, 2005

FACTS
This is a petition of Senator Aquilino Pimentel and the other parties to ask the Supreme Court to require the
Executive Department to transmit the Rome Statute which established the International Criminal Court for the
Senate’s concurrence in accordance with Sec 21, Art VII of the 1987 Constitution.

The Rome Statute established the International Criminal Court which “shall have the power to exercise its jurisdiction
over persons for the most serious crimes of international concern xxx and shall be complementary to the national
criminal jurisdictions.” Its jurisdiction covers the crime of genocide, crimes against humanity, war crimes and the
crime of aggression as defined in the Statute. The Philippines, through Charge d’ Affairs Enrique A. Manalo of the
Philippine Mission to the UN, signed the Rome Statute on Dec. 28, 2000. Its provisions, however, require that it be
subject to ratification, acceptance or approval of the signatory states.

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

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

ISSUE
Whether or not the executive department has a ministerial duty to transmit the Rome Statute (or any treaty) to the
Senate for concurrence.

HELD
The petition was dismissed. The Supreme Court ruled that the 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.

Nonetheless, while the President has the sole authority to negotiate and enter into treaties, the Constitution provides
a limitation to his power by requiring the concurrence of 2/3 of all the members of the Senate for the validity of the
treaty entered into by him. Section 21, Article VII of the 1987 Constitution provides that “no treaty or international
agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate.”

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

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

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

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

The last step in the treaty-making process is the exchange of the instruments of ratification, which usually also
signifies the effectivity of the treaty unless a different date has been agreed upon by the parties. Where ratification is
dispensed with and no effectivity clause is embodied in the treaty, the instrument is deemed effective upon its
signature.
Petitioners’ arguments equate the signing of the treaty by the Philippine representative with ratification. It should be
underscored that the signing of the treaty and the ratification are two separate and distinct steps in the treaty-
making process. As earlier discussed, the signature is primarily intended as a means of authenticating the instrument
and as a symbol of the good faith of the parties. It is usually performed by the state’s authorized representative in
the diplomatic mission. Ratification, on the other hand, is the formal act by which a state confirms and accepts the
provisions of a treaty concluded by its representative.

It should be emphasized that under our Constitution, the power to ratify is vested in the President, subject to the
concurrence of the Senate. The role of the Senate, however, is limited only to giving or withholding its consent, or
concurrence, to the ratification. Hence, it is within the authority of the President to refuse to submit a treaty to the
Senate or, having secured its consent for its ratification, refuse to ratify it. Although the refusal of a state to ratify a
treaty which has been signed in its behalf is a serious step that should not be taken lightly, such decision is within
the competence of the President alone, which cannot be encroached by this Court via a writ of mandamus. This
Court has no jurisdiction over actions seeking to enjoin the President in the performance of his official duties.
4. RENE A.V. SAGUISAG v. EXECUTIVE SECRETARY PAQUITO N. OCHOA
GR No. 212426, July 26, 2016

FACTS
This is a Resolution on the Motion for Reconsideration seeking to reverse the Decision of this Court in Saguisag et.
al., v. Executive Secretary dated 12 January 2016.

Petitioners respectfully pray that the Honorable Court RECONSIDER, REVERSE, AND SET - ASIDE its Decision dated
January 12, 2016, and Issue a new Decision GRANTING the instant consolidated petitions by declaring the Enhanced
Defense Cooperation Agreement (EDCA) entered into by the respondents for the Philippine government, with the
United States of America, UNCONSTITUTIONAL AND INVALID and to permanently enjoin its implementation.

Petitioners claim this Court erred when it ruled that EDCA was not a treaty. In connection to this, petitioners move
that EDCA must be in the form of a treaty in order to comply with the constitutional restriction under Section 25,
Article XVIII of the 1987 Constitution on foreign military bases, troops, and facilities. Additionally, they reiterate their
arguments on the Issues of telecommunications, taxation, and nuclear weapons.

The principal reason for the Motion for Reconsideration is evidently petitioners’ disagreement with the Decision that
EDCA implements the VFA and Mutual Defense Treaty (MDT).

Petitioners argue that EDCA’s provisions fall outside the allegedly limited scope of the VFA and MDT because it
provides a wider arrangement than the VFA for military bases, troops, and facilities, and it allows the establishment
of U.S. military bases.

Petitioners assert that this Court contradicted itself when it interpreted the word "allowed in" to refer to the initial
entry of foreign bases, troops, and facilities, based on the fact that the plain meaning of the provision in question
referred to prohibiting the return of foreign bases, troops, and facilities except under a treaty concurred in by the
Senate.

Secondly, by interpreting "allowed in" as referring to an initial entry, the Court has simply applied the plain meaning
of the words in the particular provision. Necessarily, once entry has been established by a subsisting treaty, latter
instances of entry need not be embodied by a separate treaty. After all, the Constitution did not state that foreign
military bases, troops, and facilities shall not subsist or exist in the Philippines.

ISSUES
1. Whether the President may enter into an executive agreement on foreign military bases, troops, or facilities.
2. Whether the provisions under EDCA are consistent with the Constitution, as well as with existing laws and treaties.

HELD
Petition is dismissed.
1. EDCA is constitutional in its arrangement as an executive agreement.
2. It remains consistent with existing laws and treaties that it purports to implement.

The manner of the President's execution of the law, even if not expressly granted by the law, is justified by necessity
and limited only by law, since the President must "take necessary and proper steps to carry into execution the law”.
It is the President's prerogative to do whatever is legal and necessary for Philippine defense interests (commander-
in-chief powers).

EDCA is considered an executive agreement, therefore may be bound through the President without the need of
senatorial votes for its execution.

The right of the Executive to enter into binding agreements without the necessity of subsequent Congressional
approval has been confirmed by long usage.

Petitioners detail their objections to EDCA in a similar way to their original petition, claiming that the VFA and MDT
did not allow EDCA to contain the following provisions:

1. Agreed Locations
2. Rotational presence of personnel
3. U.S. contractors
4. Activities of U.S. contractors

We ruled in Saguisag, et. al. that the EDCA is not a treaty despite the presence of these provisions. The very nature
of EDCA, its provisions and subject matter, indubitably categorize it as an executive agreement – a class of
agreement that is not covered by the Article XVIII Section 25 restriction – in painstaking detail. To partially quote the
Decision:

Executive agreements may dispense with the requirement of Senate concurrence because of the legal mandate with
which they are concluded.

As culled from the deliberations of the Constitutional Commission, past Supreme Court Decisions, and works of noted
scholars, executive agreements merely involve arrangements on the implementation of existing policies, rules, laws,
or agreements.

They are concluded

(1) to adjust the details of a treaty;
(2) pursuant to or upon confirmation by an act of the Legislature; or
(3) in the exercise of the President’s independent powers under the Constitution.

The raison d’etre of executive agreements hinges on prior constitutional or legislative authorizations.

The special nature of an executive agreement is not just a domestic variation in international agreements.

International practice has accepted the use of various forms and designations of international agreements, ranging
from the traditional notion of a treaty – which connotes a formal, solemn instrument – to engagements concluded in
modern, simplified forms that no longer necessitate ratification.

An international agreement may take different forms: treaty, act, protocol, agreement, concordat, compromis
d’arbitrage, convention, covenant, declaration, exchange of notes, statute, pact, charter, agreed minute,
memorandum of agreement, modus vivendi, or some other form.

Consequently, under international law, the distinction between a treaty and an international agreement or even an
executive agreement is irrelevant for purposes of determining international rights and obligations.

However, this principle does not mean that the domestic law distinguishing treaties, international agreements, and
executive agreements is relegated to a mere variation in form, or that the constitutional requirement of Senate
concurrence is demoted to an optional constitutional directive. There remain two very important features that
distinguish treaties from executive agreements and translate them into terms of art in the domestic setting.

First, executive agreements must remain traceable to an express or implied authorization under the Constitution,
statutes, or treaties. The absence of these precedents puts the validity and effectivity of executive agreements under
serious question for the main function of the Executive is to enforce the Constitution and the laws enacted by the
Legislature, not to defeat or interfere in the performance of these rules. In turn, executive agreements cannot create
new international obligations that are not expressly allowed or reasonably implied in the law they purport to
implement.

Second, treaties are, by their very nature, considered superior to executive agreements. Treaties are products of the
acts of the Executive and the Senate unlike executive agreements, which are solely executive actions. Because of
legislative participation through the Senate, a treaty is regarded as being on the same level as a statute. If there is
an irreconcilable conflict, a later law or treaty takes precedence over one that is prior. An executive agreement is
treated differently. Executive agreements that are inconsistent with either a law or a treaty are considered
ineffective. Both types of international agreement are nevertheless subject to the supremacy of the Constitution.

Subsequently, the Decision goes to great lengths to illustrate the source of EDCA’s validity, in that as an executive
agreement it fell within the parameters of the VFA and MDT, and seamlessly merged with the whole web of
Philippine law. We need not restate the arguments here. It suffices to state that this Court remains unconvinced that
EDCA deserves treaty status under the law.
We find no reason for EDCA to be declared unconstitutional. It fully conforms to the Philippines’ legal regime through
the MDT and VFA. It also fully conforms to the government’s continued policy to enhance our military capability in
the face of various military and humanitarian Issues that may arise.

(Semi) Concurring Opinion

Leonardo-De Castro: Agrees with the Issues raised. Believes that the EDCA is an international agreement that allows
the presence in the Philippines of foreign military bases, troops and facilities, and thus requires that the three
requisites under Section 25, Article XVIII be complied with. The EDCA must be submitted to the Senate for
concurrence. Furthermore, EDCA is without any clear limitation as to the duration of their stay.

Dissenting Opinions
Brion: EDCA is constitutionally deficient and, hence, cannot be enforced in our country. EDCA should be in the form
of a treaty. Believes that the ponencia's approach and interpretation are incorrect because they are overly simplistic.
EDCA reiterates the purposes of the 1951 MDT and the 1998 VFA but also contains an entirety new agreement
pertaining to Agreed Locations.

Leonen: EDCA needs to be submitted to the Senate for concurrence. It involves a key political Issue that substantially
alters or reshapes our national and foreign policy. He votes to PARTIALLY GRANT the Petitions and to DECLARE the
Enhanced Defense Cooperation Agreement (EDCA) between the Republic of the Philippines and the United States of
America as a formal and official memorial of the results of the negotiations concerning the allowance of United States
military bases, troops, or facilities in the Philippines, which is NOT EFFECTIVE until it complies with the requisites of
Article XVIII, Section 25 of the 1987 Philippine Constitution, namely: (1) that the agreement must be in the form of a
treaty; (2) that the treaty must be duly concurred in by the Philippine Senate and, when so required by Congress,
ratified by a majority of votes cast by the people in a national referendum; and (3) that the agreement is either (a)
recognized as a treaty or (b) accepted or acknowledged as a treaty by the United States before it becomes valid,
binding, and effective.

De Castro: The EDCA is entirely a new treaty, separate and distinct from the VFA and the MDT. Whether the stay of
the foreign troops in the country is permanent or temporary is immaterial because the Constitution does not
distinguish. The EDCA clearly involves the entry of foreign military bases, troops or facilities in the country. Hence,
the absence of Senate concurrence to the agreement makes it an invalid treaty.
5. Zivotofsky v. Kerry, 576
U.S. 1059 (2015)

The text and structure of the United States Constitution grant the President the power to recognize foreign nations
and governments. The question then becomes whether that power is exclusive. The various ways in which the
President may unilaterally effect recognition, and the lack of any similar power vested in Congress, suggest that it is.
So, too, do functional considerations. Put simply, the Nation must have a single policy regarding which governments
are legitimate in the eyes of the United States and which are not. Foreign countries need to know, before entering
into diplomatic relations or commerce with the United States, whether their ambassadors will be received; whether
their officials will be immune from suit in federal court; and whether they may initiate lawsuits here to vindicate their
rights. These assurances cannot be equivocal.

FACTS
Menachem Binyamin Zivotofsky was born in Jerusalem on October 17, 2002, shortly after the enactment of the
Foreign Relations Authorization Act. When both requests to list Israel as the birthplace on Menachem's passport were
denied (first as "Jerusalem, Israel," then as simply "Israel"), parents Ari and Naomi Zivotofsky filed suit against the
State Department (then headed by Hillary Clinton). The petitioners' case was ruled by the United States District Court
for the District of Columbia and the United States Court of Appeals for the District of Columbia Circuit to be
unqualified for judicial review as it seemingly posed a nonjusticiable "political question" and would "necessarily
require the Court to decide the political status of Jerusalem."

On May 2, 2011, the Supreme Court granted the case (Zivotofsky v. Clinton) certiorari. It was argued on November
11 of that year, with attorney Nathan Lewin representing the petitioner and Solicitor General Donald Verrilli Jr.
representing the respondent. On March 26, 2012, the Court reversed the lower court decisions in an 8-1 decision
(with Justices Alito and Sotomayor writing separate concurrences, and Justice Breyer writing the dissent). In writing
for the majority, Chief Justice Roberts stated:

The federal courts are not being asked to supplant a foreign policy decision of the political branches with the courts’
own unmoored determination of what United States policy toward Jerusalem should be. Instead, Zivotofsky requests
that the courts enforce a specific statutory right. To resolve his claim, the Judiciary must decide if Zivotofsky's
interpretation of the statute is correct, and whether the statute is constitutional. This is a familiar judicial exercise.

ISSUE
Does a federal statute that directs the Secretary of State to record the birthplace of an American citizen born in
Jerusalem as "Israel," if requested to do so, impermissibly infringe on the President's power to recognize foreign
states?

HELD
Yes. Justice Anthony M. Kennedy delivered the opinion for the 6-3 majority holding that the federal statute
unconstitutionally usurped the President’s power to recognize foreign nations as it relates to passports. The Court
Held that, although the Constitution does not explicitly address the Issue of recognition of foreign nations, the
Reception Clause in Article II of the Constitution—which states that the President will receive foreign ambassadors—
grants the President the power to recognize foreign states. The fact that Article II also vests the President with the
power to make treaties and appoint ambassadors gives the President further control over recognition decisions.
Although Congress has a role to play in other aspects of foreign policy, often by granting the President’s formal
recognition practical effect, Congress has no such power to initiate international diplomacy without involving the
President. Because the question of whether the American government recognizes a foreign nation must have only
one answer, the President’s power is assumed to be exclusive, and therefore Congress cannot act in a manner that
contradicts Executive branch policy regarding recognition. The Court also Held that precedent and history support the
view that the formal recognition power belongs exclusively to the President. Because the Executive branch has
maintained a neutral position by not recognizing any nation’s sovereignty over Jerusalem, the federal statute in
question unconstitutionally infringes on the President’s recognition power.

In his concurring opinion, Justice Stephen G. Breyer wrote that this case presented a political question beyond the
purview of the judiciary, but because precedent precluded political resolution, he joined in the majority opinion.

On a second Issue on whether the statute unconstitutionally usurped the President's power to recognize foreign
nations in relation to consular reports -- the Court answered 5-4 in the affirmative with Justice Clarence Thomas
joining the dissenters arguing that the federal statute in question was an unconstitutional usurpation of the
President’s recognition power with regard to passports but not consular reports of birth abroad. The historical record
indicates that any residual foreign affairs powers that were not explicitly allocated were assumed to be vested in the
President. While passport regulation has traditionally been an executive function and falls squarely within the residual
foreign affairs power reserved to the President, the consular reports are part of the naturalization powers that are
granted to Congress. Therefore, the enforcement of the statute in question as it relates to passports would violate
the separation of powers doctrine, but it may be constitutionally applied to consular reports of birth abroad.

Chief Justice John G. Roberts, Jr. wrote a dissent in which he argued that, in order for the President to
constitutionally ignore the express will of Congress, the President must be exercising a power that the Constitution
“conclusively and preclusively” granted to the Executive branch. Because the history and the precedent regarding the
power to recognize foreign states is at best conflicting, Chief Justice Roberts argued that the Constitution does not
conclusively and preclusively grant the President the power to recognize foreign states. Even if the President did have
that power, the statute in question would not be unconstitutional because an optional passport designation does not
amount to official recognition. Justice Samuel A. Alito, Jr. joined in the dissent. In his separate dissent, Justice
Antonin Scalia wrote that, to the extent that the Constitution grants the President the power to recognize foreign
states, the power is not exclusive. The Constitution grants Congress such a power in the form of its authority to
regulate commerce with foreign nations. Regardless, the statute in question does not implicate the recognition
power; it merely directs the State Department to make an accommodation regarding a geographic description that is
in line with similar accommodations the State Department already offers. Chief Justice Roberts and Justice Alito
joined in the dissent.
6. SECRETARY OF JUSTICE vs. HON. RALPH C. LANTION, Presiding Judge, Regional Trial Court of
Manila, Branch 25, and MARK B. JIMENEZ
G.R. No. 139465 January 18, 2000

FACTS:
On January 13, 1977 P.D. 1069 was Issued prescribing the Procedure of the Extradition of Persons who have
committed Crimes in a Foreign Country. The Decree is founded on The Doctrine of Incorporation under the
Constitution Art II, Sec 2 of the 1987 Philippine Constitution.

On November 13, 1994 Justice Secretary Franklin Drilon signed in Manila the Extradition Treaty Between the
Government of the Philippines and the Government of U.S.A. It was ratified by the Senate.

In accordance to "Extradition Treaty Between the Government of the Republic of the Philippines and the Government
of the United States of America" (RP-US Extradition Treaty), the Department of Justice received from the Department
of Foreign Affairs U.S. Note Verbale No. 0522 containing a request for the extradition of Mark Jimenez to the United
States attached with the Grand Jury Indictment, the warrant of arrest Issued by the U.S. District Court, Southern
District of Florida, and other supporting documents on June 18, 1999. Mr. Jimenez was charged with the following:

i. 18 USC 371 (Conspiracy to commit offense or to defraud the United States; 2 counts; Maximum Penalty: 5
years/count)
ii. 26 USC 7201 (Attempt to evade or defeat tax;4 counts; Maximum Penalty:5 years/count)
iii. 18 USC 1343 (Fraud by wire, radio, or television; 2 counts; Maximum Penalty: 5 years/count)
iv. 18 USC 1001 (False statement or entries; 6 counts; Maximum Penalty: 5 years/count)
v. 2 USC 441f (Election contributions in name of another; 33 counts; Maximum Penalty: less than 1 year)

The Department of Justice denied Mr. Jimenez request for extradition documents based on the following:

i. Article 7 of the Extradition Treaty between the Philippines and the United States enumerates the documentary
requirements and establishes the procedures under which the documents submitted shall be received and admitted
as evidence. Evidentiary requirements are under Section 4 of P.D. No. 1069. Evaluation by the Department of the
documents is not a preliminary investigation nor akin to preliminary investigation of criminal cases. Thus, the
constitutionally guaranteed rights of the accused in all criminal prosecutions are not available. It merely determines
the compliance of the Requesting Government with the procedures and requirements under the relevant law and
treaty. After the filing of the petition for extradition, the person sought to be extradited will be furnished by the court
with copies of the petition.

ii. The Department of Justice under P.D. No. 1069 is the counsel of the foreign governments in all extradition
requests. Furthermore, Article 7 of the RP-US Extradition Treaty provides that the Philippine Government must
represent the interests of the United States in any proceedings arising out of a request for extradition. Thus, it must
comply with the request of the United States Government to prevent unauthorized disclosure of the subject
information.

iii. Article 26 of the Vienna Convention on the Law of Treaties provides that "Every treaty in force is binding upon the
parties to it and must be performed by them in good faith". Extradition is a tool of criminal law enforcement and to
be effective, requests for extradition or surrender of accused or convicted persons must be processed expeditiously.

Pending evaluation of the extradition documents, Mark Jimenez, through a counsel, on July 1, 1999, requested
copies of the official extradition request from the U.S. Government as well as all documents and papers submitted
therewith, and that he be given ample time to comment on the request after he shall received copies of the
requested papers.

Mark Jimenez insisted the constitutional rights particularly the following:

1. the right to be furnished the request and supporting papers;
2. the right to be heard which consists in having a reasonable period of time to oppose the request, and to present
evidence is support of the opposition;

The Depart of Justice Denied the request.

On August 6, 1999, Mr. Jimenez filed with filed with the Regional Trial Court of the National Capital Judicial Region a
petition presided over by the Honorable Ralph C. Lantion (Presiding Judge of RTC Manila) against the Secretary of
Justice, the Secretary of Foreign Affairs, and the Director of the National Bureau of Investigation:
i. mandamus to compel the Department to furnish the extradition documents
ii. certiorari to set aside Department’s letter dated July 13, 1999 denying his request
iii. prohibition to restrain the Department from considering the extradition request and from filing an extradition
petition in court
iv. enjoin the Secretary of Foreign Affairs and the Director of the NBI from performing any act directed to the
extradition
v. application for the issuance of a temporary restraining order and a writ of preliminary injunction

On August 10, 1999, Honorable Ralph C. Lantion ordered the Secretary of Justice, the Secretary of Foreign Affairs
and the Director of the National Bureau of Investigation to maintain the status quo by refraining from committing the
acts complained of, from conducting further proceedings in connection with the request of the United States
Government, from filing the corresponding Petition with a Regional Trial court and from performing any act directed
to the extradition for a period of 20 days from service of the order.

Hon. Hilario G. Davide, Jr., Chief Justice of the Supreme Court of the Philippines ordered Hon. Lantion to cease and
desist from enforcing the order. Due to transcendental importance, the Court brushed aside peripheral procedural
matters which concern the proceedings in Civil Case No. 99-94684 and the TRO and proceded on the Issues.

Thus this petition, arguing that Honorable Lantion acted without or in excess of jurisdiction or with grave abuse of
discretion amounting to lack or abuse discretion amounting to lack or excess of jurisdiction in issuing the TRO:
1. by ordering the Secretary of Justice to refrain from committing the acts complained of (i.e to desist from refusing
Mark Jimenez access to the official extradition request and documents.)
2. Secretary of Justice was unqualifiedly prevented from performing legal duties under the extradition treaty and the
Philippine Extradition Law.

ISSUE
i. Whether or NOT the evaluation procedure is not a preliminary investigation nor akin to preliminary investigation of
criminal cases
ii. Whether or NOT the twin basic due process rights granted by Sec. 3, Rule 112 of the Rules of Court on the right to
be furnished a copy of the complaint, the affidavits, and other supporting documents and the right to submit
counter-affidavits and other supporting documents within 10 days from receipt is dispensable
iii. Whether or NOT the right of the people to information on matters of public concern granted under Sec. 7 of Art.
III of the 1987 Constitution is violated

HELD
DISMISSED for lack of merit. Petitioner is ordered to furnish private respondent copies of the extradition request and
its supporting papers, and to grant him a reasonable period within which to file his comment with supporting
evidence.

i. NO.

Extradition Request
The Extradition Request (Sec. 4. PD 1069) is made by the Foreign Diplomat of the
Requesting State, addressed to the Secretary of Foreign Affairs. The Secretary of Foreign Affairs has the executive
authority to conduct the evaluation process which, just like the extradition proceedings proper, belongs to a class by
itself or is sui generis. It is not a criminal investigation but it is also erroneous to say that it is purely an exercise of
ministerial functions. At such stage, the executive authority has the power:
1) to make a technical assessment of the completeness and sufficiency of the extradition papers in form and
substance
2) to outrightly deny the request if on its face and on the face of the supporting documents the crimes indicated are
not extraditable
3) to make a determination whether or not the request is politically motivated, or that the offense is a military one
which is not punishable under non-military penal legislation.

The process may be characterized as an investigative or inquisitorial process (NOT an exercise of an administrative
body's quasi-judicial power) (Sec. 5. PD 1069 and Pars. 2 and 3, Art. 7 of the RP-US Extradition Treaty) that is
indispensable to prosecution. The power of investigation consists in gathering, organizing and analyzing evidence,
which is a useful aid or tool in an administrative agency's performance of its rule-making or quasi-judicial functions.

In Ruperto v. Torres, the Court laid down the test of determining whether an administrative body is exercising
judicial functions or merely investigatory functions applies to an administrative body authorized to evaluate
extradition documents. If the only purpose for investigation is to evaluate evidence submitted before it based on the
Facts and circumstances presented to it, and if the agency is not authorized to make a final pronouncement affecting
the parties, then there is an absence of judicial discretion and judgment. Thus, the role of the administrative body is
limited to an initial finding of whether or not the extradition petition can be filed in court. The court has the power to
determine whether or not the extradition should be effected. The evaluation procedure (in contrast to ordinary
investigations) may result in the deprivation of liberty of the prospective extraditee or accused (Sec. 2[c] of PD 1069)
at 2 stages:
1) provisional arrest of the prospective extraditee pending the submission of the request
This is because the Treaty provides that in case of urgency, a contracting party may request the provisional arrest of
the person sought pending presentation of the request (Par. 1, Art. 9 of the RP-US Extradition Treaty) to prevent
flight but he shall be automatically discharged after 60 days (Par. 4 of the RP-US Extradition Treaty) or 20 days (Sec.
20[d] PD 1069) if no request is submitted. Otherwise, he can be continuously detained, or if not, subsequently
rearrested (Par. 5, Art 9, RP-US Extradition Treaty)
2) temporary arrest of the prospective extraditee during the pendency of the extradition petition in court (Sec. 6, PD
1069).
The peculiarity and deviant characteristic of the evaluation procedure is that:
1) there is yet no extradite; BUT
2) it results in an administrative if adverse to the person involved, may cause his immediate incarceration

The evaluation process partakes of the nature of a criminal investigation. Similar to the evaluation stage of
extradition proceedings, a preliminary investigation, which may result in the filing of an information against the
respondent, can possibly lead to his arrest, and to the deprivation of his liberty. The characterization of a treaty in
Wright was in reference to the applicability of the prohibition against an ex post facto law. It had nothing to do with
the denial of the right to notice, information, and hearing.

In this case, the extradition request was delivered to the Department of Foreign Affairs on June 17, 1999 (the
following day the Department of Justice received the request). Thus, the Department of Foreign Affairs failed to
discharge its duty of evaluating the same and its accompanying documents.

Extradition Petition
After delivery of the Extradition Request by the Secretary of Foreign Affairs to the Secretary of Justice, the latter shall
designate and authorize an attorney in his office to take charge of the case (Par. 1, Sec. 5, PD 1069). The attorney
shall file a written Extradition Petition with the proper regional trial court, with a prayer that the court take the
extradition request under consideration (Par. 2, Sec. 5, PD 1069). The presiding judge shall Issue an order
summoning the prospective extraditee to appear and to answer the petition. The judge may Issue a warrant of arrest
if it appears that the immediate arrest and temporary detention of the accused will best serve the ends of justice or
to prevent flight (Par. 1, Sec. 6, PD 1069).

Extradition Hearing
The provisions of the Rules of Court, insofar as practicable and not inconsistent with the summary nature of the
proceedings, shall apply during the Extradition Hearing (Par. 1, Sec. 9, PD 1069) The attorney may represent the
Requesting state. (Sec. 8, PD 1069). The Court’s decision on whether the petition is extraditable based on the
application of the dual criminality rule and other conditions mentioned in Article 2 of the RP-US Extradition Treaty or
whether or not the offense for which extradition is requested is a political one (Par. 3, Article 7 of the RP-US
Extradition Treaty) shall be final and immediately executory (Sec. 12, PD 1069) and appealable with the Court of
Appeals where the provisions of the Rules of Court governing appeal in criminal cases in the Court of Appeals shall
apply except for the required 15-day period to file brief (Sec. 13, PD 1069).

ii. YES.

Neither the Treaty nor the Extradition Law precludes the twin rights of notice and hearing from a prospective
extradite. In the absence of a law or principle of law, we must apply the rules of fair play. Petitioner contends that
United States requested the Philippine Government to prevent unauthorized disclosure of confidential information.
Such argument, however has been overturned by petitioner's revelation that everything it refuses to make available
at this stage would be obtainable during trial. If the information is truly confidential, the veil of secrecy cannot be
lifted at any stage of the extradition proceedings. The constitutional Issue in the case at bar does not even call for
"justice outside legality," since private respondent's due process rights, although not guaranteed by statute or by
treaty, are protected by constitutional guarantees.

However in this case, with the meticulous nature of the evaluation, which cannot just be completed in an abbreviated
period of time due to its intricacies and certain problems in the extradition papers (such as those that are in Spanish
and without the official English translation, and those that are not properly authenticated) it cannot to be said to be
urgent. Therefore, notice and hearing requirements of administrative due process cannot be dispensed with and
shelved aside.

iii. NO.
During the evaluation procedure, no official governmental action of our own government has as yet been done;
hence the invocation of the right is premature. Later, and in contrast, records of the extradition hearing would
already fall under matters of public concern, because our government by then shall have already made an official
decision to grant the extradition request.
7. Province of North Cotabato v. Government of the Republic of the Philippines
G.R. Nos. 183591, 183752, 183893, 183951, & 183962 14 October 2008

Facts
On 8 August 2008, the Government of the Republic of the Philippines (GRP), represented by the GRP Peace Panel
and the Presidential Adviser on the Peace Process (PAPP), and the Moro Islamic Liberation Front (MILF) were
scheduled to sign the Memorandum of Agreement on the Ancestral Domain (MOA-AD) Aspect of the previous GRP-
MILF Tripoli Agreement on Peace of 2001 in Kuala Lumpur, Malaysia.

Subject of this case is the Memorandum of Agreement on the Ancestral Domain (MOA-AD) which is scheduled to be
signed by the Government of the Republic of the Philippines and the MILF in August 05, 2008. Five cases bearing the
same subject matter were consolidated by this court namely:-

GR 183591 by the Province of Cotabato and Vice Governor Pinol on its prayer to declare unconstitutional and to have
the MOA-AD disclosed to the public and be open for public consultation.
GR 183752 by the City of Zamboanga et al on its prayer to declare null and void said MOA-AD and to exclude the city
to the BJE.
GR 183893 by the City of Iligan enjoining the respondents from signing the MOA-AD and additionally impleading
Exec. Sec. Ermita.
GR 183951 by the Province of Zamboanga del Norte et al, praying to declare null and void the MOA-AD and without
operative effect and those respondents enjoined from executing the MOA-AD.
GR 183692 by Maceda, Binay and Pimentel III, 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 and impleading Iqbal.

The MOA-AD is a result of various agreements entered into by and between the government and the MILF starting in
1996; then in 1997, they signed the Agreement on General Cessation of Hostilities; and the following year, they
signed the General Framework of Agreement of Intent on August 27, 1998. However, in 1999 and in the early of
2000, the MILF attacked a number of municipalities in Central Mindanao. In March 2000, they took the hall of
Kauswagan, Lanao del Norte; hence, then Pres. Estrada declared an all-out war-which tolled the peace negotiation. It
was when then Pres. Arroyo assumed office, when the negotiation regarding peace in Mindanao continued. MILF was
hesitant; however, this negotiation proceeded when the government of Malaysia interceded. Formal peace talks
resumed and MILF suspended all its military actions. The Tripoli Agreement in 2001 lead to the ceasefire between
the parties. After the death of MILF Chairman Hashim and Iqbal took over his position, the crafting of MOA-AD in its
final form was born.

MOA-AD Overview
This is an agreement to be signed by the GRP and the MILF. Used as reference in the birth of this MOA-AD are the
Tripoli Agreement, organic act of ARMM, IPRA Law, international laws such as ILO Convention 169, the UN Charter
etc., and the principle of Islam i.e compact right entrenchment (law of compact, treaty and order). The body is
divided into concepts and principles, territory, resources, and governance.

Embodied in concepts and principles, is the definition of Bangsamoro as all indigenous peoples of Mindanao and its
adjacent islands. These people have the right to self- governance of their Bangsamoro homeland to which they have
exclusive ownership by virtue of their prior rights of occupation in the land. 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." It 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.

As defined in the territory of the MOA-AD, the BJE shall embrace the Mindanao-Sulu-Palawan geographic region,
involving the present ARMM, parts of which are those which voted in the inclusion to ARMM in a plebiscite. The
territory is divided into two categories, “A” which will be subject to plebiscite not later than 12 mos. after the signing
and “B” which will be subject to plebiscite 25 years from the signing of another separate agreement. Embodied in the
MOA-AD that the BJE shall have jurisdiction over the internal waters-15kms from the coastline of the BJE territory;
they 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 government shall exercise joint jurisdiction, authority and management over all natural
resources. There will also be sharing of minerals in the territorial waters; but no provision on the internal waters.

Included in the resources is the stipulation 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, as well as
environmental cooperation agreements, but not to include aggression in the GRP. The external defense of the BJE is
to remain the duty and obligation of the government. The BJE shall have participation in international meetings and
events" like those of the ASEAN and the specialized agencies of the UN. They are 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. The BJE shall also have the right to explore its resources and that 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. And they shall have the right to cancel or modify concessions and TLAs.

And lastly in the governance, the MOA-AD claims that the relationship between the GRP and MILF is associative i.e.
characterized by shared authority and responsibility. This structure of governance shall be further discussed in the
Comprehensive Compact, a stipulation which was highly contested before the court. The BJE shall also be given the
right to build, develop and maintain its own institutions, the details of which shall be discussed in the comprehensive
compact as well.

Before the signing, however, the Province of North Cotabato sought to compel the respondents to disclose and
furnish it with complete and official copies of the MOA-AD, as well as to hold a public consultation thereon, invoking
its right to information on matters of public concern. A subsequent petition sought to have the City of Zamboanga
excluded from the BJE. The Court then Issued a Temporary Restraining Order (TRO) on 4 August 2008, directing the
public respondents and their agents to cease and desist from formally signing the MOA-AD.

Issue_1
WON the President has the power to pursue reforms that would require new legislation and constitutional
amendments.

Held_1
YES. However, the stipulation in the MOA-AD that virtually guarantees that necessary changes shall be effected upon
the legal framework of the GRP must be struck down as unconstitutional as it is inconsistent with the limits of the
President’s authority to propose constitutional amendments. Because although the President’s power to conduct
peace negotiations is implicitly included in her powers as Chief Executive and Commander-in-Chief, and, in the course
of conducting peace negotiations, may validly consider implementing even those policies that require changes to the
Constitution, 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.

Issue_2
WON there is a violation of the people’s right to information on matters of public concern (1987 Constitution, Art. III,
Sec. 7) under a state policy of full disclosure of all its transactions involving public interest (1987 Constitution, Art. II,
Sec. 28), including public consultation under RA No. 7160 (Local Government Code of 1991).

Held_2
YES. 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:
a. EO No. 3, which enumerates the functions and responsibilities of the PAPP, 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 PAPP to conduct regular dialogues to seek relevant information, comments,
advice, and recommendations from peace partners and concerned sectors of society;
b. RA No. 7160 (LGC) 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;
 c. RA No. 8371 (IPRA) 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 (ICC/IP).

Issue_3
WON the GRP Peace Panel and the PAPP committed grave abuse of discretion amounting to lack or excess of
jurisdiction.

Held_3
YES. The PAPP committed grave abuse of discretion when he failed to carry out the pertinent consultation process,
as mandated by EO No. 3, RA No. 7160, and RA 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.

Issue_4
WON the MOA-AD is constitutional.

Held_4
NO. It 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 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.

Issue_5
WON the GRP can invoke executive privilege.

Held_5
NO. 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.

Carpio-Morales, J.
The people’s right to information on matters of public concern under Sec. 7, Art. 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,
Art. II of the Constitution.

The right to information guarantees the right of the people to demand information, while the policy of public
disclosure recognizes the duty of officialdom to give information even if nobody demands.

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.

An 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.

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 only in the most extreme of cases
and, even then, under carefully defined circumstances.

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.

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.

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.
8. Wigberto Tanada, et al. v. Edgardo Angara, et al.
G.R. No. 118295 | May 2, 1997

Summary: Petitioners assail the constitutionality of the Philippines acceding to the World Trade Organization for
being violative of provisions which are supposed to give preference to Filipino workers and economy and on the
ground that it infringes legislative and judicial power. The WTO, through it provisions on “most favored nation” and
national treatment, require that nationals and other member countries are placed in the same footing in terms of
products and services. However, the Court brushed off these contentions and ruled that the WTO is constitutional.
Sections 10 and 12 of Article XII (National Economy and Patrimony) should be read in relation to Sections 1 and 13
(promoting the general welfare). Also, Section 10 is self-executing only to “rights, privileges, and concessions
covering national economy and patrimony” but not every aspect of trade and commerce. There are balancing
provisions in the Constitution allowing the Senate to ratify the WTO agreement. Also, the Constitution doesn’t rule
out foreign competition. States waive certain amount of sovereignty when entering into treaties.

Facts:
 This case questions the constitutionality of the Philippines being part of the World Trade Organization,
particularly when President Fidel Ramos signed the Instrument of Ratification and the Senate concurring in
the said treaty.
 Following World War 2, global financial leaders Held a conference in Bretton Woods to discuss global
economy. This led to the establishment of three great institutions: International Bank for Reconstruction and
Development (World Bank), International Monetary Fund and International Trade Organization.
 However, the ITO failed to materialized. Instead, there was the General Agreement on Trades and Tariffs. It
was on the Uruguay Round of the GATT that the WTO was then established.
 The WTO is an institution regulating trade among nations, including the reduction of tariff and barriers.
 Petitioners filed a case assailing 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.”
 It is petitioners’ position that the “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.”

Issue 1: Does the petition present a justiciable controversy? YES!

In seeking to nullify the Senate’s act as being unconstitutional, the petition no doubt raises a justiciable
controversy. It becomes not only the right but in fact the duty of the judiciary to settle the dispute

Issue 2: Do the provisions of the WTO Agreement contravene Section 19, Article II and Section 10 & 12, Artilce XII
of the 1987 Constitution? NO!

Petitioners’ Contentions:
 Petitioners 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 parts of WTO
Agreement
o This is in view of the most-favored nation clause (MFN) of the TRIMS (trade-related investment
measures), TRIPS (Trade Related aspects of intellectual property rights), Trade in Services, and
par. 4 of Article III of GATT 1994.
o “shall be accorded treatment no less favorable than that accorded to like products of national
origin”
 Sec. 19, Art II:The State shall develop a self-reliant and independent national economy effectively controlled
by Filipinos.
 Sec. 10, Art XII: 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, Art XII: The State shall promote the preferential use of Filipino labor, domestic materials and locally
produced goods, and adopt measures that help make them competitive.”

Ruling:
 These provisions are not self-executing
 o Merely guides in the exercise of judicial review and in making laws.
 Secs. 10 and 12 of Article XII should be read and understood in relation to the other sections in said article,
especially Sec. 1 and 13:
o A more equitable distribution of opportunities, income and wealth;
o A sustained increase in the amount of goods and services
o An expanding productivity as the key to raising the quality of life
 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 Constitutio n to allow the Senate to
ratify the Philippine concurrence in the WTO Agreement. And we hold that there are.
 WTO Recognizes Need to Protect Weak Economies
o 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.
 Specific WTO Provisos Protect Developing Countries
o Tariff reduction – developed countries must reduce at rate of 36% in 6 years, developing 24% in
10 years
o Domestic subsidy – developed countries must reduce 20% over six (6) years, developing countries
at 13% in 10 years
o Export subsidy – developed countries, 36% in 6 years; developing countries, 3/4ths of 36% in 10
years
 Constitution Does Not Rule Out Foreign Competition
o Encourages industries that are competitive in both domestic and foreign markets
 The Court 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

Issue 3: Does the text of the WTO and its Annexes limit, restrict or impair the exercise of legislative power by
Congress? NO!
 A portion of sovereignty may be waived without violating the Constitution.
 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.
The sovereignty of a state therefore cannot in fact and in reality be considered absolute. Certain restrictions enter
into the picture: limitations imposed by the nature of membership in the family of nations & limitations imposed by
treaty stipulations.