G.R. No.

L-18463 October 4, 1922

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
GREGORIO PERFECTOR, defendant-appellant.
Alfonso E. Mendoza and the appellant in behalf of the latter.
Attorney-General Villa-Real for appellee.

MALCOLM, J.:
The important question is here squarely presented of whether article 256 of the Spanish Penal Code,
punishing "Any person who, by . . . writing, shall defame, abuse, or insult any Minister of the Crown or
other person in authority . . .," is still in force.
About August 20, 1920, the Secretary of the Philippine Senate, Fernando M. Guerrero, discovered that
certain documents which constituted the records of testimony given by witnesses in the investigation of oil
companies, had disappeared from his office. Shortly thereafter, the Philippine Senate, having been called
into special session by the Governor-General, the Secretary for the Senate informed that body of the loss
of the documents and of the steps taken by him to discover the guilty party. The day following the
convening of the Senate, September 7, 1920, the newspaper La Nacion, edited by Mr. Gregorio Perfecto,
published an article reading as follows:
Half a month has elapsed since the discovery, for the first time, of the scandalous robbery of records
which were kept and preserved in the iron safe of the Senate, yet up to this time there is not the slightest
indication that the author or authors of the crime will ever be discovered.
To find them, it would not, perhaps, be necessary to go out of the Sente itself, and the persons in charge
of the investigation of the case would not have to display great skill in order to succeed in their
undertaking, unless they should encounter the insuperable obstacle of offical concealment.
In that case, every investigation to be made would be but a mere comedy and nothing more.
After all, the perpetration of the robbery, especially under the circumstances that have surrounded it, does
not surprise us at all.
The execution of the crime was but the natural effect of the environment of the place in which it was
committed.
How many of the present Senators can say without remorse in their conscience and with serenity of mind,
that they do not owe their victory to electoral robbery? How may?
The author or authors of the robbery of the records from the said iron safe of the Senate have, perhaps,
but followed the example of certain Senators who secured their election through fraud and robbery.
The Philippine Senate, in its session of September 9, 1920, adopted a resolution authorizing its
committee on elections and privileges to report as to the action which should be taken with reference to
the article published in La Nacion. On September 15, 1920, the Senate adopted a resolution authorizing
the President of the Senate to indorse to the Attorney-General, for his study and corresponding action, all
the papers referring to the case of the newspaper La Nacion and its editor, Mr. Gregorio Perfecto. As a
result, an information was filed in the municipal court of the City of Manila by an assistant city fiscal, in
which the editorial in question was set out and in which it was alleged that the same constituted a
violation of article 256 of the Penal Code. The defendant Gregorio Perfecto was found guilty in the
municipal court and again in the Court of First Instance of Manila.
During the course of the trial in the Court of First Instance, after the prosecution had rested, the defense
moved for the dismissal of the case. On the subject of whether or not article 256 of the Penal Code, under
which the information was presented, is in force, the trial judge, the Honorable George R. Harvey, said:
This antiquated provision was doubtless incorporated into the Penal Code of Spain for the protection of
the Ministers of the Crown and other representatives of the King against free speech and action by
Spanish subjects. A severe punishment was prescribed because it was doubtless considered a much
more serious offense to insult the King's representative than to insult an ordinary individual. This
provision, with almost all the other articles of that Code, was extended to the Philippine Islands when
under the dominion of Spain because the King's subject in the Philippines might defame, abuse or insult
the Ministers of the Crown or other representatives of His Majesty. We now have no Ministers of the
Crown or other persons in authority in the Philippines representing the King of Spain, and said provision,
with other articles of the Penal Code, had apparently passed into "innocuous desuetude," but the
Supreme Corut of the Philippine Islands has, by a majority decision, held that said article 256 is the law of
the land to-day. . . .
The Helbig case is a precedent which, by the rule of stare decisis, is binding upon this court until
otherwise determined by proper authority.
In the decision rendered by the same judge, he concluded with the following language:
In the United States such publications are usually not punishable as criminal offense, and little importance
is attached to them, because they are generally the result of political controversy and are usually
regarded as more or less colored or exaggerated. Attacks of this character upon a legislative body are not
punishable, under the Libel Law. Although such publications are reprehensible, yet this court feels some
aversion to the application of the provision of law under which this case was filed. Our Penal Code has
come to us from the Spanish regime. Article 256 of that Code prescribes punishment for persons who use
insulting language about Ministers of the Crown or other "authority." The King of Spain doubtless left the
need of such protection to his ministers and others in authority in the Philippines as well as in Spain.
Hence, the article referred to was made applicable here. Notwithstanding the change of sovereignty, our
Supreme Court, in a majority decision, has held that this provision is still in force, and that one who made
an insulting remark about the President of the United States was punishable under it. (U.S. vs. Helbig,
supra.) If it applicable in that case, it would appear to be applicable in this case. Hence, said article 256
must be enforced, without fear or favor, until it shall be repealed or superseded by other legislation, or
until the Supreme Court shall otherwise determine.
In view of the foregoing considerations, the court finds the defendant guilty as charged in the information
and under article 256 of their Penal Code sentences him to suffer two months and one day of arresto
mayor and the accessory penalties prescribed by law, and to pay the costs of both instances.
The fifteen errors assigned by the defendant and appellant, reenforced by an extensive brief, and
eloquent oral argument made in his own behalf and by his learned counsel, all reduce themselves to the
pertinent and decisive question which was announced in the beginning of this decision.
It will be noted in the first place that the trial judge considered himself bound to follow the rule announced
in the case of United States vs. Helbig (R. G. No. 14705, 1 not published). In that case, the accused was
charged with having said, "To hell with the President and his proclamations, or words to that effect," in
violation of article 256 of the Penal Code. He was found guilty in a judgment rendered by the Court of
First Instance of Manila and again on appeal to the Supreme Court, with the writer of the instant decision
dissenting on two principal grounds: (1) That the accused was deprived of the constitutional right of cross-
examination, and (2) that article 256 of the Spanish Penal Code is no longer in force. Subsequently, on a
motion of reconsideration, the court, being of the opinion that the Court of First Instance had committed a
prejudicial error in depriving the accused of his right to cross-examine a principal witness, set aside the
judgment affirming the judgment appealed from and ordered the return of the record to the court of origin
for the celebration of a new trial. Whether such a trial was actually had, is not known, but at least, the
record in the Helbig case has never again been elevated to this court.
There may perchance exist some doubt as to the authority of the decision in the Helbig case, in view of
the circumstances above described. This much, however, is certain: The facts of the Helbig case and the
case before us, which we may term the Perfecto case, are different, for in the first case there was an oral
defamation, while in the second there is a written defamation. Not only this, but a new point which, under
the facts, could not have been considered in the Helbig case, is, in the Perfecto case, urged upon the
court. And, finally, as is apparent to all, the appellate court is not restrained, as was the trial court, by
strict adherence to a former decision. We much prefer to resolve the question before us unhindered by
references to the Helbig decision.
This is one of those cases on which a variety of opinions all leading to the same result can be had. A
majority of the court are of the opinion that the Philippine Libel Law, Act No. 277, has had the effect of
repealing so much of article 256 of the Penal Code as relates to written defamation, abuse, or insult, and
that under the information and the facts, the defendant is neither guilty of a violation of article 256 of the
Penal Code, nor of the Libel Law. The view of the Chief Justice is that the accused should be acquitted
for the reason that the facts alleged in the information do not constitute a violation of article 156 of the
Penal Code. Three members of the court believe that article 256 was abrogated completely by the
change from Spanish to American sovereignty over the Philippines and is inconsistent with democratic
principles of government.
Without prejudice to the right of any member of the court to explain his position, we will discuss the two
main points just mentioned.
1. Effect of the Philippine Libel Law, Act No. 277, on article 256 of the Spanish Penal Code. — The Libel
Law, Act No. 277, was enacted by the Philippine Commission shortly after organization of this legislative
body. Section 1 defines libel as a "malicious defamation, expressed either in writing, printing, or by signs
or pictures, or the like, or public theatrical exhibitions, tending to blacken the memory of one who is dead
or to impeach the honesty, virtue, or reputation, or publish the alleged or natural deffects of one who is
alive, and thereby expose him to public hatred, contempt or ridicule." Section 13 provides that "All laws
and parts of laws now in force, so far as the same may be in conflict herewith, are hereby repealed. . . ."
That parts of laws in force in 1901 when the Libel Law took effect, were in conflict therewith, and that the
Libel Law abrogated certain portion of the Spanish Penal Code, cannot be gainsaid. Title X of Book II of
the Penal Code, covering the subjects of calumny and insults, must have been particularly affected by the
Libel Law. Indeed, in the early case of Pardo de Tavera vs. Garcia Valdez ([1902], 1. Phil., 468), the
Supreme Court spoke of the Libel Law as "reforming the preexisting Spanish law on the subject of
calumnia and injuria." Recently, specific attention was given to the effect of the Libel Law on the
provisions of the Penal Code, dealing with calumny and insults, and it was found that those provisions of
the Penal Code on the subject of calumny and insults in which the elements of writing an publicity
entered, were abrogated by the Libel Law. (People vs. Castro [1922], p. 842, ante.)
The Libel Law must have had the same result on other provisions of the Penal Code, as for instance
article 256.
The facts here are that the editor of a newspaper published an article, naturally in writing, which may
have had the tendency to impeach the honesty, virtue, or reputation of members of the Philippine Senate,
thereby possibly exposing them to public hatred, contempt, or ridicule, which is exactly libel, as defined by
the Libel Law. Sir J. F. Stephen is authority for the statement that a libel is indictable when defaming a
"body of persons definite and small enough for individual members to be recognized as such, in or by
means of anything capable of being a libel." (Digest of Criminal Law, art. 267.) But in the United States,
while it may be proper to prosecute criminally the author of a libel charging a legislator with corruption,
criticisms, no matter how severe, on a legislature, are within the range of the liberty of the press, unless
the intention and effect be seditious. (3 Wharton's Criminal Law, p. 2131.) With these facts and legal
principles in mind, recall that article 256 begins: Any person who, by . . . writing, shall defame, abuse, or
insult any Minister of the Crown or other person in authority," etc.
The Libel Law is a complete and comprehensive law on the subject of libel. The well-known rule of
statutory construction is, that where the later statute clearly covers the old subject-matter of antecedent
acts, and it plainly appears to have been the purpose of the legislature to give expression in it to the
whole law on the subject, previous laws are held to be repealed by necessary implication. (1 Lewis'
Sutherland Statutory Construction, p. 465.) For identical reasons, it is evident that Act No. 277 had the
effect so much of this article as punishes defamation, abuse, or insults by writing.
Act No. 292 of the Philippine Commission, the Treason and Sedition Law, may also have affected article
256, but as to this point, it is not necessary to make a pronouncement.
2. Effect of the change from Spanish to Amercian sevoreignty over the Philippine son article 256 of the
Spanish Penal Code. — Appellant's main proposition in the lower court and again energetically pressed in
the appellate court was that article 256 of the Spanish Penal Code is not now in force because abrogated
by the change from Spanish to American sovereignty over the Philippines and because inconsistent with
democratic principles of government. This view was indirectly favored by the trial judge, and, as before
stated, is the opinion of three members of this court.
Article 256 is found in Chapter V of title III of Book II of the Spanish Penal Code. Title I of Book II
punishes the crimes of treason, crimes that endanger the peace or independence of the state, crimes
against international law, and the crime of piracy. Title II of the same book punishes the crimes of lese
majeste, crimes against the Cortes and its members and against the council of ministers, crimes against
the form of government, and crimes committed on the occasion of the exercise of rights guaranteed by
the fundamental laws of the state, including crime against religion and worship. Title III of the same Book,
in which article 256 is found, punishes the crimes of rebellion, sedition, assaults upon persons in
authority, and their agents, and contempts, insults, injurias, and threats against persons in authority, and
insults, injurias, and threats against their agents and other public officers, the last being the title to
Chapter V. The first two articles in Chapter V define and punish the offense of contempt committed by
any one who shall be word or deed defame, abuse, insult, or threathen a minister of the crown, or any
person in authority. The with an article condemning challenges to fight duels intervening, comes article
256, now being weighed in the balance. It reads as follows: "Any person who, by word, deed, or writing,
shall defame, abuse, or insult any Minister of the Crown or other person in authority, while engaged in the
performance of official duties, or by reason of such performance, provided that the offensive minister or
person, or the offensive writing be not addressed to him, shall suffer the penalty of arresto mayor," — that
is, the defamation, abuse, or insult of any Minister of the Crown of the Monarchy of Spain (for there could
not be a Minister of the Crown in the United States of America), or other person in authority in the
Monarchy of Spain.
It cannot admit of doubt that all those provisions of the Spanish Penal Code having to do with such
subjects as treason, lese majeste, religion and worship, rebellion, sedition, and contempts of ministers of
the crown, are not longer in force. Our present task, therefore, is a determination of whether article 256
has met the same fate, or, more specifically stated, whether it is in the nature of a municipal law or
political law, and is consistent with the Constitution and laws of the United States and the characteristics
and institutions of the American Government.
It is a general principle of the public law that on acquisition of territory the previous political relations of the
ceded region are totally abrogated. "Political" is here used to denominate the laws regulating the relations
sustained by the inhabitants to the sovereign. (American Insurance Co. vs. Canter [1828], 1 Pet., 511;
Chicago, Rock Island and Pacific Railway Co. vs. McGlinn [1885], 114 U.S., 542; Roa vs. Collector of
Customs [1912], 23 Phil., 315.) Mr. Justice Field of the United States Supreme Court stated the obvious
when in the course of his opinion in the case of Chicago, Rock Island and Pacific Railway Co. vs.
McGlinn, supra, he said: "As a matter of course, all laws, ordinances and regulations in conflict with the
political character, institutions and Constitution of the new government are at once displaced. Thus, upon
a cession of political jurisdiction and legislative power — and the latter is involved in the former — to the
United States, the laws of the country in support of an established religion or abridging the freedom of the
press, or authorizing cruel and unusual punishments, and he like, would at once cease to be of obligatory
force without any declaration to that effect." To quote again from the United States Supreme Court: "It
cannot be admitted that the King of Spain could, by treaty or otherwise, impart to the United States any of
his royal prerogatives; and much less can it be admitted that they have capacity to receive or power to
exercise them. Every nation acquiring territory, by treaty or otherwise, must hold it subject to the
Constitution and laws of its own government, and not according to those of the government ceding it."
(Pollard vs. Hagan [1845], 3 Hos., 210.)
On American occupation of the Philippines, by instructions of the President to the Military Commander
dated May 28, 1898, and by proclamation of the latter, the municipal laws of the conquered territory
affecting private rights of person and property and providing for the punishment of crime were nominally
continued in force in so far as they were compatible with the new order of things. But President McKinley,
in his instructions to General Merritt, was careful to say: "The first effect of the military occupation of the
enemy's territory is the severance of the former political relation of the inhabitants and the establishment
of a new political power." From that day to this, the ordinarily it has been taken for granted that the
provisions under consideration were still effective. To paraphrase the language of the United States
Supreme Court in Weems vs. United States ([1910], 217 U. S., 349), there was not and could not be,
except as precise questions were presented, a careful consideration of the codal provisions and a
determination of the extent to which they accorded with or were repugnant to the "'great principles of
liberty and law' which had been 'made the basis of our governmental system.' " But when the question
has been squarely raised, the appellate court has been forced on occasion to hold certain portions of the
Spanish codes repugnant t democratic institutions and American constitutional principles. (U.S. vs. Sweet
[1901], 1 Phil., 18; U.S. vs. Balcorta [1913], 25 Phil., 273; U.S. vs. Balcorta [1913], 25 Phil., 533; Weems
vs. U.S., supra.)
The nature of the government which has been set up in the Philippines under American sovereignty was
outlined by President McKinley in that Magna Charta of Philippine liberty, his instructions to the
Commission, of April 7, 1900. In part, the President said:
In all the forms of government and administrative provisions which they are authorized to prescribe, the
Commission should bear in mind that he government which they are establishing is designed not for our
satisfaction or for the expression of our theoretical views, but for the happiness, peace, and prosperity of
the people of the Philippine Islands, and the measures adopted should be made to conform to their
customs, their habits, and even their prejudices, to the fullest extent consistent with the accomplishment
of the indispensable requisites of just and effective government. At the same time the Commission should
bear in mind, and the people of the Islands should be made plainly to understand, that there are certain
great principles of government which have been made the basis of our governmental system, which we
deem essential to the rule of law and the maintenance of individual freedom, and of which they have,
unfortunately, been denied the experience possessed by us; that there are also certain practical rules of
government which we have found to be essential to the preservation of these great principles of liberty
and law, and that these principles and these rules of government must be established and maintained in
their islands for the sake of their liberty and happiness, however much they may conflict with the customs
or laws of procedure with which they are familiar. It is evident that the most enligthened thought of the
Philippine Islands fully appreciates the importance of these principles and rules, and they will inevitably
within a short time command universal assent.
The courts have naturally taken the same view. Mr. Justice Elliott, speaking for our Supreme Court, in the
case of United States vs. Bull ([1910], 15 Phil., 7), said: "The President and Congress framed the
government on the model with which American are familiar, and which has proven best adapted for the
advancement of the public interests and the protection of individual rights and privileges."
Therefore, it has come with somewhat of a shock to hear the statement made that the happiness, peace,
and prosperity of the people of the Philippine Islands and their customs, habits, and prejudices, to follow
the language of President McKinley, demand obeisance to authority, and royal protection for that
authority.
According to our view, article 256 of the Spanish Penal Code was enacted by the Government of Spain to
protect Spanish officials who were the representatives of the King. With the change of sovereignty, a new
government, and a new theory of government, as set up in the Philippines. It was in no sense a
continuation of the old, although merely for convenience certain of the existing institutions and laws were
continued. The demands which the new government made, and makes, on the individual citizen are
likewise different. No longer is there a Minister of the Crown or a person in authority of such exalted
position that the citizen must speak of him only with bated breath. "In the eye of our Constitution and
laws, every man is a sovereign, a ruler and a freeman, and has equal rights with every other man. We
have no rank or station, except that of respectability and intelligence as opposed to indecency and
ignorance, and the door to this rank stands open to every man to freely enter and abide therein, if he is
qualified, and whether he is qualified or not depends upon the life and character and attainments and
conduct of each person for himself. Every man may lawfully do what he will, so long as it is not malum in
se or malum prohibitum or does not infringe upon the qually sacred rights of others." (State vs. Shepherd
[1903], 177 Mo., 205; 99 A. S. R., 624.)
It is true that in England, from which so many of the laws and institutions of the United States are derived,
there were once statutes of scandalum magnatum, under which words which would not be actionable if
spoken of an ordinary subject were made actionable if spoken of a peer of the realm or of any of the great
officers of the Crown, without proof of any special damage. The Crown of England, unfortunately, took a
view less tolerant that that of other sovereigns, as for instance, the Emperors Augustus, Caesar, and
Tiberius. These English statutes have, however, long since, become obsolete, while in the United States,
the offense of scandalum magnatum is not known. In the early days of the American Republic, a sedition
law was enacted, making it an offense to libel the Government, the Congress, or the President of the
United States, but the law met with so much popular disapproval, that it was soon repealed. "In this
country no distinction as to persons is recognized, and in practice a person holding a high office is
regarded as a target at whom any person may let fly his poisonous words. High official position, instead of
affording immunity from slanderous and libelous charges, seems rather to be regarded as making his
character free plunder for any one who desires to create a senation by attacking it." (Newell, Slander and
Libel, 3d ed., p. 245; Sillars vs. Collier [1890], 151 Mass., 50; 6 L.R.A., 680.)
Article 256 of the Penal Code is contrary to the genius and fundamental principles of the American
character and system of government. The gulf which separates this article from the spirit which inspires
all penal legislation of American origin, is as wide as that which separates a monarchy from a democratic
Republic like that of the United States. This article was crowded out by implication as soon as the United
States established its authority in the Philippine Islands. Penalties out of all proportion to the gravity of the
offense, grounded in a distorted monarchical conception of the nature of political authority, as opposed to
the American conception of the protection of the interests of the public, have been obliterated by the
present system of government in the Islands. 1awph!l.net
From an entirely different point of view, it must be noted that this article punishes contempts against
executive officials, although its terms are broad enough to cover the entire official class. Punishment for
contempt of non-judicial officers has no place in a government based upon American principles. Our
official class is not, as in monarchies, an agent of some authority greater than the people but it is an
agent and servant of the people themselves. These officials are only entitled to respect and obedience
when they are acting within the scope of their authority and jurisdiction. The American system of
government is calculated to enforce respect and obedience where such respect and obedience is due,
but never does it place around the individual who happens to occupy an official position by mandate of
the people any official halo, which calls for drastic punishment for contemptuous remarks.
The crime of lese majeste disappeared in the Philippines with the ratification of the Treaty of Paris.
Ministers of the Crown have no place under the American flag.
To summarize, the result is, that all the members of the court are of the opinion, although for different
reasons, that the judgment should be reversed and the defendant and appellant acquitted, with costs de
officio. So ordered.
Ostrand and Johns, JJ., concur.
Separate Opinions
ARAULLO, C.J., concurring:
I concur with the dispositive part of the foregoing decision, that is, with the acquittal of the accused, for the
sole reason that the facts alleged in the information do not constitute a violation of article 256 of the Penal
Code; for although that article is in force with respect to calumny, injuria, or insult, by deed or word, against
an authority in the performance of his duties or by reason thereof, outside of his presence, it is repealed by
the Libel Law in so far as it refers to calumny, injuria, or insult committed against an authority by writing or
printing, as was that inserted in the said information.
ROMUALDEZ, J., concurring:
I concur with the result. I believe that the responsibility of the accused has not been shown either under
article 256 of the Penal Code or under the Libel Law.
I am of the opinion that article 256 of the Penal Code is still in force, except as it refers to "Ministers of the
Crown," whom we do not have in our Government, and to calumny, injuria, or insult, by writing or printing,
committed against an authority in the performance of his duties or by reason thereof, which portion was
repealed by the Libel Law.

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.1
The signing of the MOA-AD between the GRP and the MILF was not to materialize, however, for upon
motion of petitioners, specifically those who filed their cases before the scheduled signing of the MOA-
AD, this Court issued a Temporary Restraining Order enjoining the GRP from signing the same.
The MOA-AD was preceded by a long process of negotiation and the concluding of several prior
agreements between the two parties beginning in 1996, when the GRP-MILF peace negotiations began.
On July 18, 1997, the GRP and MILF Peace Panels signed the Agreement on General Cessation of
Hostilities. The following year, they signed the General Framework of Agreement of Intent on August 27,
1998.
The Solicitor General, who represents respondents, summarizes the MOA-AD by stating that the same
contained, among others, the commitment of the parties to pursue peace negotiations, protect and
respect human rights, negotiate with sincerity in the resolution and pacific settlement of the conflict, and
refrain from the use of threat or force to attain undue advantage while the peace negotiations on the
substantive agenda are on-going.2
Early on, however, it was evident that there was not going to be any smooth sailing in the GRP-MILF
peace process. Towards the end of 1999 up to early 2000, the MILF attacked a number of municipalities
in Central Mindanao and, in March 2000, it took control of the town hall of Kauswagan, Lanao del Norte.3
In response, then President Joseph Estrada declared and carried out an "all-out-war" against the MILF.
When President Gloria Macapagal-Arroyo assumed office, the military offensive against the MILF was
suspended and the government sought a resumption of the peace talks. The MILF, according to a leading
MILF member, initially responded with deep reservation, but when President Arroyo asked the
Government of Malaysia through Prime Minister Mahathir Mohammad to help convince the MILF to return
to the negotiating table, the MILF convened its Central Committee to seriously discuss the matter and,
eventually, decided to meet with the GRP.4
The parties met in Kuala Lumpur on March 24, 2001, with the talks being facilitated by the Malaysian
government, the parties signing on the same date the Agreement on the General Framework for the
Resumption of Peace Talks Between the GRP and the MILF. The MILF thereafter suspended all its
military actions.5
Formal peace talks between the parties were held in Tripoli, Libya from June 20-22, 2001, the outcome of
which was the GRP-MILF Tripoli Agreement on Peace (Tripoli Agreement 2001) containing the basic
principles and agenda on the following aspects of the negotiation: Security Aspect, Rehabilitation
Aspect, and Ancestral Domain Aspect. With regard to the Ancestral Domain Aspect, the parties in Tripoli
Agreement 2001 simply agreed "that the same be discussed further by the Parties in their next meeting."
A second round of peace talks was held in Cyberjaya, Malaysia on August 5-7, 2001 which ended with
the signing of the Implementing Guidelines on the Security Aspect of the Tripoli Agreement 2001 leading
to a ceasefire status between the parties. This was followed by the Implementing Guidelines on the
Humanitarian Rehabilitation and Development Aspects of the Tripoli Agreement 2001, which was signed
on May 7, 2002 at Putrajaya, Malaysia. Nonetheless, there were many incidence of violence between
government forces and the MILF from 2002 to 2003.
Meanwhile, then MILF Chairman Salamat Hashim passed away on July 13, 2003 and he was replaced by
Al Haj Murad, who was then the chief peace negotiator of the MILF. Murad's position as chief peace
negotiator was taken over by Mohagher Iqbal.6
In 2005, several exploratory talks were held between the parties in Kuala Lumpur, eventually leading to
the crafting of the draft MOA-AD in its final form, which, as mentioned, was set to be signed last August 5,
2008.
II. STATEMENT OF THE PROCEEDINGS
Before the Court is what is perhaps the most contentious "consensus" ever embodied in an instrument -
the MOA-AD which is assailed principally by the present petitions bearing docket numbers 183591,
183752, 183893, 183951 and 183962.
Commonly impleaded as respondents are the GRP Peace Panel on Ancestral Domain7 and the
Presidential Adviser on the Peace Process (PAPP) Hermogenes Esperon, Jr.
On July 23, 2008, the Province of North Cotabato8 and Vice-Governor Emmanuel 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.9 Invoking the right to information on matters of
public concern, petitioners seek to compel respondents to disclose and furnish them the complete and
official copies of the MOA-AD including its attachments, and to prohibit the slated signing of the MOA-AD,
pending the disclosure of the contents of the MOA-AD and the holding of a public consultation thereon.
Supplementarily, petitioners pray that the MOA-AD be declared unconstitutional.10
This initial petition was followed by another one, docketed as G.R. No. 183752, also for Mandamus and
Prohibition11 filed by the City of Zamboanga,12 Mayor Celso Lobregat, Rep. Ma. Isabelle Climaco and
Rep. Erico Basilio Fabian who likewise pray for similar injunctive reliefs. Petitioners herein moreover pray
that the City of Zamboanga be excluded from the Bangsamoro Homeland and/or Bangsamoro Juridical
Entity and, in the alternative, that the MOA-AD be declared null and void.
By Resolution of August 4, 2008, the Court issued a Temporary Restraining Order commanding and
directing public respondents and their agents to cease and desist from formally signing the MOA-AD.13
The Court also required the Solicitor General to submit to the Court and petitioners the official copy of the
final draft of the MOA-AD,14 to which she complied.15
Meanwhile, the City of Iligan16 filed a petition for Injunction and/or Declaratory Relief, docketed as G.R.
No. 183893, praying that respondents be enjoined from signing the MOA-AD or, if the same had already
been signed, from implementing the same, and that the MOA-AD be declared unconstitutional. Petitioners
herein additionally implead Executive Secretary Eduardo Ermita as respondent.
The Province of Zamboanga del Norte,17 Governor Rolando Yebes, Vice-Governor Francis Olvis, Rep.
Cecilia Jalosjos-Carreon, Rep. Cesar Jalosjos, and the members18 of the Sangguniang Panlalawigan of
Zamboanga del Norte filed on August 15, 2008 a petition for Certiorari, Mandamus and Prohibition,19
docketed as G.R. No. 183951. They pray, inter alia, that the MOA-AD be declared null and void and
without operative effect, and that respondents be enjoined from executing the MOA-AD.
On August 19, 2008, Ernesto Maceda, Jejomar Binay, and Aquilino Pimentel III filed a petition for
Prohibition,20 docketed as G.R. No. 183962, praying for a judgment prohibiting and permanently
enjoining respondents from formally signing and executing the MOA-AD and or any other agreement
derived therefrom or similar thereto, and nullifying the MOA-AD for being unconstitutional and illegal.
Petitioners herein additionally implead as respondent the MILF Peace Negotiating Panel represented by
its Chairman Mohagher Iqbal.
Various parties moved to intervene and were granted leave of court to file their petitions-/comments-in-
intervention. Petitioners-in-Intervention include Senator Manuel A. Roxas, former Senate President
Franklin Drilon and Atty. Adel Tamano, the City of Isabela21 and Mayor Cherrylyn Santos-Akbar, the
Province of Sultan Kudarat22 and Gov. Suharto Mangudadatu, the Municipality of Linamon in Lanao del
Norte,23 Ruy Elias Lopez of Davao City and of the Bagobo tribe, Sangguniang Panlungsod member
Marino Ridao and businessman Kisin Buxani, both of Cotabato City; and lawyers Carlo Gomez, Gerardo
Dilig, Nesario Awat, Joselito Alisuag, Richalex Jagmis, all of Palawan City. The Muslim Legal Assistance
Foundation, Inc. (Muslaf) and the Muslim Multi-Sectoral Movement for Peace and Development
(MMMPD) filed their respective Comments-in-Intervention.
By subsequent Resolutions, the Court ordered the consolidation of the petitions. Respondents filed
Comments on the petitions, while some of petitioners submitted their respective Replies.
Respondents, by Manifestation and Motion of August 19, 2008, stated that the Executive Department
shall thoroughly review the MOA-AD and pursue further negotiations to address the issues hurled against
it, and thus moved to dismiss the cases. In the succeeding exchange of pleadings, respondents' motion
was met with vigorous opposition from petitioners.
The cases were heard on oral argument on August 15, 22 and 29, 2008 that tackled the following
principal issues:
1. Whether the petitions have become moot and academic
(i) insofar as the mandamus aspect is concerned, in view of the disclosure of official copies of the final
draft of the Memorandum of Agreement (MOA); and
(ii) insofar as the prohibition aspect involving the Local Government Units is concerned, if it is considered
that consultation has become fait accompli with the finalization of the draft;
2. Whether the constitutionality and the legality of the MOA is ripe for adjudication;
3. Whether respondent Government of the Republic of the Philippines Peace Panel committed grave
abuse of discretion amounting to lack or excess of jurisdiction when it negotiated and initiated the MOA
vis-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.24
The Court, thereafter, ordered the parties to submit their respective Memoranda. Most of the parties
submitted their memoranda on time.
III. OVERVIEW OF THE MOA-AD
As a necessary backdrop to the consideration of the objections raised in the subject five petitions and six
petitions-in-intervention against the MOA-AD, as well as the two comments-in-intervention in favor of the
MOA-AD, the Court takes an overview of the MOA.
The MOA-AD identifies the Parties to it as the GRP and the MILF.
Under the heading "Terms of Reference" (TOR), the MOA-AD includes not only four earlier agreements
between the GRP and MILF, but also two agreements between the GRP and the MNLF: the 1976 Tripoli
Agreement, and the Final Peace Agreement on the Implementation of the 1976 Tripoli Agreement, signed
on September 2, 1996 during the administration of President Fidel Ramos.
The MOA-AD also identifies as TOR two local statutes - the organic act for the Autonomous Region in
Muslim Mindanao (ARMM)25 and the Indigenous Peoples Rights Act (IPRA),26 and several international
law instruments - the ILO Convention No. 169 Concerning Indigenous and Tribal Peoples in Independent
Countries in relation to the UN Declaration on the Rights of the Indigenous Peoples, and the UN Charter,
among others.
The MOA-AD includes as a final TOR the generic category of "compact rights entrenchment emanating
from the regime of dar-ul-mua'hada (or territory under compact) and dar-ul-sulh (or territory under peace
agreement) that partakes the nature of a treaty device."
During the height of the Muslim Empire, early Muslim jurists tended to see the world through a simple
dichotomy: there was the dar-ul-Islam (the Abode of Islam) and dar-ul-harb (the Abode of War). The first
referred to those lands where Islamic laws held sway, while the second denoted those lands where
Muslims were persecuted or where Muslim laws were outlawed or ineffective.27 This way of viewing the
world, however, became more complex through the centuries as the Islamic world became part of the
international community of nations.
As Muslim States entered into treaties with their neighbors, even with distant States and inter-
governmental organizations, the classical division of the world into dar-ul-Islam and dar-ul-harb eventually
lost its meaning. New terms were drawn up to describe novel ways of perceiving non-Muslim territories.
For instance, areas like dar-ul-mua'hada (land of compact) and dar-ul-sulh (land of treaty) referred to
countries which, though under a secular regime, maintained peaceful and cooperative relations with
Muslim States, having been bound to each other by treaty or agreement. Dar-ul-aman (land of order), on
the other hand, referred to countries which, though not bound by treaty with Muslim States, maintained
freedom of religion for Muslims.28
It thus appears that the "compact rights entrenchment" emanating from the regime of dar-ul-mua'hada
and dar-ul-sulh simply refers to all other agreements between the MILF and the Philippine government -
the Philippines being the land of compact and peace agreement - that partake of the nature of a treaty
device, "treaty" being broadly defined as "any solemn agreement in writing that sets out understandings,
obligations, and benefits for both parties which provides for a framework that elaborates the principles
declared in the [MOA-AD]."29
The MOA-AD states that the Parties "HAVE AGREED AND ACKNOWLEDGED AS FOLLOWS," and
starts with its main body.
The main body of the MOA-AD is divided into four strands, namely, Concepts and Principles,
Territory, Resources, and Governance.
A. CONCEPTS AND PRINCIPLES
This strand begins with the statement that it is "the birthright of all Moros and all Indigenous peoples of
Mindanao to identify themselves and be accepted as ‘Bangsamoros.'" It defines "Bangsamoro people"
as the natives or original inhabitants of Mindanao and its adjacent islands including Palawan and the Sulu
archipelago at the time of conquest or colonization, and their descendants whether mixed or of full blood,
including their spouses.30
Thus, the concept of "Bangsamoro," as defined in this strand of the MOA-AD, includes not only "Moros"
as traditionally understood even by Muslims,31 but all indigenous peoples of Mindanao and its adjacent
islands. The MOA-AD adds that the freedom of choice of indigenous peoples shall be respected. What
this freedom of choice consists in has not been specifically defined.
The MOA-AD proceeds to refer to the "Bangsamoro homeland," the ownership of which is vested
exclusively in the Bangsamoro people by virtue of their prior rights of occupation.32 Both parties to the
MOA-AD acknowledge that ancestral domain does not form part of the public domain.33
The Bangsamoro people are acknowledged as having the right to self-governance, which right is said to
be rooted on ancestral territoriality exercised originally under the suzerain authority of their sultanates and
the Pat a Pangampong ku Ranaw. The sultanates were described as states or "karajaan/kadatuan"
resembling a body politic endowed with all the elements of a nation-state in the modern sense.34
The MOA-AD thus grounds the right to self-governance of the Bangsamoro people on the past suzerain
authority of the sultanates. As gathered, the territory defined as the Bangsamoro homeland was ruled by
several sultanates and, specifically in the case of the Maranao, by the Pat a Pangampong ku Ranaw, a
confederation of independent principalities (pangampong) each ruled by datus and sultans, none of whom
was supreme over the others.35
The MOA-AD goes on to describe the Bangsamoro people as "the ‘First Nation' with defined territory and
with a system of government having entered into treaties of amity and commerce with foreign nations."
The term "First Nation" is of Canadian origin referring to the indigenous peoples of that territory,
particularly those known as Indians. In Canada, each of these indigenous peoples is equally entitled to be
called "First Nation," hence, all of them are usually described collectively by the plural "First Nations."36
To that extent, the MOA-AD, by identifying the Bangsamoro people as "the First Nation" - suggesting its
exclusive entitlement to that designation - departs from the Canadian usage of the term.
The MOA-AD then mentions for the first time the "Bangsamoro Juridical Entity" (BJE) to which it grants
the authority and jurisdiction over the Ancestral Domain and Ancestral Lands of the Bangsamoro.37
B. TERRITORY
The territory of the Bangsamoro homeland is described as the land mass as well as the maritime,
terrestrial, fluvial and alluvial domains, including the aerial domain and the atmospheric space above it,
embracing the Mindanao-Sulu-Palawan geographic region.38
More specifically, the core of the BJE is defined as the present geographic area of the ARMM - thus
constituting the following areas: Lanao del Sur, Maguindanao, Sulu, Tawi-Tawi, Basilan, and Marawi City.
Significantly, this core also includes certain municipalities of Lanao del Norte that voted for inclusion in
the ARMM in the 2001 plebiscite.39
Outside of this core, the BJE is to cover other provinces, cities, municipalities and barangays, which are
grouped into two categories, Category A and Category B. Each of these areas is to be subjected to a
plebiscite to be held on different dates, years apart from each other. Thus, Category A areas are to be
subjected to a plebiscite not later than twelve (12) months following the signing of the MOA-AD.40 Category
B areas, also called "Special Intervention Areas," on the other hand, are to be subjected to a plebiscite
twenty-five (25) years from the signing of a separate agreement - the Comprehensive Compact.41
The Parties to the MOA-AD stipulate that the BJE shall have jurisdiction over all natural resources within
its "internal waters," defined as extending fifteen (15) kilometers from the coastline of the BJE area;42 that
the BJE shall also have "territorial waters," which shall stretch beyond the BJE internal waters up to the
baselines of the Republic of the Philippines (RP) south east and south west of mainland Mindanao; and
that within these territorial waters, the BJE and the "Central Government" (used interchangeably with RP)
shall exercise joint jurisdiction, authority and management over all natural resources.43 Notably, the
jurisdiction over the internal waters is not similarly described as "joint."
The MOA-AD further provides for the sharing of minerals on the territorial waters between the Central
Government and the BJE, in favor of the latter, through production sharing and economic cooperation
agreement.44 The activities which the Parties are allowed to conduct on the territorial waters are
enumerated, among which are the exploration and utilization of natural resources, regulation of shipping
and fishing activities, and the enforcement of police and safety measures.45 There is no similar provision
on the sharing of minerals and allowed activities with respect to the internal waters of the BJE.
C. RESOURCES
The MOA-AD states that the BJE is free to enter into any economic cooperation and trade relations with
foreign countries and shall have the option to establish trade missions in those countries. Such
relationships and understandings, however, are not to include aggression against the GRP. The BJE may
also enter into environmental cooperation agreements.46
The external defense of the BJE is to remain the duty and obligation of the Central Government. The
Central Government is also bound to "take necessary steps to ensure the BJE's participation in
international meetings and events" like those of the ASEAN and the specialized agencies of the UN. The
BJE is to be entitled to participate in Philippine official missions and delegations for the negotiation of
border agreements or protocols for environmental protection and equitable sharing of incomes and
revenues involving the bodies of water adjacent to or between the islands forming part of the ancestral
domain.47
With regard to the right of exploring for, producing, and obtaining all potential sources of energy,
petroleum, fossil fuel, mineral oil and natural gas, the jurisdiction and control thereon is to be vested in the
BJE "as the party having control within its territorial jurisdiction." This right carries the proviso that, "in
times of national emergency, when public interest so requires," the Central Government may, for a fixed
period and under reasonable terms as may be agreed upon by both Parties, assume or direct the
operation of such resources.48
The sharing between the Central Government and the BJE of total production pertaining to natural
resources is to be 75:25 in favor of the BJE.49
The MOA-AD provides that legitimate grievances of the Bangsamoro people arising from any unjust
dispossession of their territorial and proprietary rights, customary land tenures, or their marginalization shall
be acknowledged. Whenever restoration is no longer possible, reparation is to be in such form as mutually
determined by the Parties.50
The BJE may modify or cancel the forest concessions, timber licenses, contracts or agreements, mining
concessions, Mineral Production and Sharing Agreements (MPSA), Industrial Forest Management
Agreements (IFMA), and other land tenure instruments granted by the Philippine Government, including
those issued by the present ARMM.51
D. GOVERNANCE
The MOA-AD binds the Parties to invite a multinational third-party to observe and monitor the
implementation of the Comprehensive Compact. This compact is to embody the "details for the effective
enforcement" and "the mechanisms and modalities for the actual implementation" of the MOA-AD. The
MOA-AD explicitly provides that the participation of the third party shall not in any way affect the status of
the relationship between the Central Government and the BJE.52
The "associative" relationship
between the Central Government
and the BJE
The MOA-AD describes the relationship of the Central Government and the BJE as "associative,"
characterized by shared authority and responsibility. And it states that the structure of governance is to be
based on executive, legislative, judicial, and administrative institutions with defined powers and functions
in the Comprehensive Compact.
The MOA-AD provides that its provisions requiring "amendments to the existing legal framework" shall
take effect upon signing of the Comprehensive Compact and upon effecting the aforesaid amendments,
with due regard to the non-derogation of prior agreements and within the stipulated timeframe to be
contained in the Comprehensive Compact. As will be discussed later, much of the present
controversy hangs on the legality of this provision.
The BJE is granted the power to build, develop and maintain its own institutions inclusive of civil service,
electoral, financial and banking, education, legislation, legal, economic, police and internal security force,
judicial system and correctional institutions, the details of which shall be discussed in the negotiation of
the comprehensive compact.
As stated early on, the MOA-AD was set to be signed on August 5, 2008 by Rodolfo Garcia and
Mohagher Iqbal, Chairpersons of the Peace Negotiating Panels of the GRP and the MILF, respectively.
Notably, the penultimate paragraph of the MOA-AD identifies the signatories as "the representatives of
the Parties," meaning the GRP and MILF themselves, and not merely of the negotiating panels.53 In
addition, the signature page of the MOA-AD states that it is "WITNESSED BY" Datuk Othman Bin Abd
Razak, Special Adviser to the Prime Minister of Malaysia, "ENDORSED BY" Ambassador Sayed Elmasry,
Adviser to Organization of the Islamic Conference (OIC) Secretary General and Special Envoy for Peace
Process in Southern Philippines, and SIGNED "IN THE PRESENCE OF" Dr. Albert G. Romulo, Secretary
of Foreign Affairs of RP and Dato' Seri Utama Dr. Rais Bin Yatim, Minister of Foreign Affairs, Malaysia, all
of whom were scheduled to sign the Agreement last August 5, 2008.
Annexed to the MOA-AD are two documents containing the respective lists cum maps of the provinces,
municipalities, and barangays under Categories A and B earlier mentioned in the discussion on the strand
on TERRITORY.
IV. PROCEDURAL ISSUES
A. RIPENESS
The power of judicial review is limited to actual cases or controversies.54 Courts decline to issue advisory
opinions or to resolve hypothetical or feigned problems, or mere academic questions.55 The limitation of
the power of judicial review to actual cases and controversies defines the role assigned to the judiciary in
a tripartite allocation of power, to assure that the courts will not intrude into areas committed to the other
branches of government.56
An actual case or controversy involves a conflict of legal rights, an assertion of opposite legal claims,
susceptible of judicial resolution as distinguished from a hypothetical or abstract difference or dispute.
There must be a contrariety of legal rights that can be interpreted and enforced on the basis of existing
law and jurisprudence.57 The Court can decide the constitutionality of an act or treaty only when a proper
case between opposing parties is submitted for judicial determination.58
Related to the requirement of an actual case or controversy is the requirement of ripeness. A question is
ripe for adjudication when the act being challenged has had a direct adverse effect on the individual
challenging it.59 For a case to be considered ripe for adjudication, it is a prerequisite that something had
then been accomplished or performed by either branch before a court may come into the picture,60 and
the petitioner must allege the existence of an immediate or threatened injury to itself as a result of the
challenged action.61 He must show that he has sustained or is immediately in danger of sustaining some
direct injury as a result of the act complained of.62
The Solicitor General argues that there is no justiciable controversy that is ripe for judicial review in the
present petitions, reasoning that
The unsigned MOA-AD is simply a list of consensus points subject to further negotiations and legislative
enactments as well as constitutional processes aimed at attaining a final peaceful agreement. Simply put,
the MOA-AD remains to be a proposal that does not automatically create legally demandable rights and
obligations until the list of operative acts required have been duly complied with. x x x
xxxx
In the cases at bar, it is respectfully submitted that this Honorable Court has no authority to pass upon
issues based on hypothetical or feigned constitutional problems or interests with no concrete bases.
Considering the preliminary character of the MOA-AD, there are no concrete acts that could possibly
violate petitioners' and intervenors' rights since the acts complained of are mere contemplated steps
toward the formulation of a final peace agreement. Plainly, petitioners and intervenors' perceived injury, if
at all, is merely imaginary and illusory apart from being unfounded and based on mere conjectures.
(Underscoring supplied)
The Solicitor General cites63 the following provisions of the MOA-AD:
TERRITORY
xxxx
2. Toward this end, the Parties enter into the following stipulations:
xxxx
d. Without derogating from the requirements of prior agreements, the Government stipulates to conduct
and deliver, using all possible legal measures, within twelve (12) months following the signing of the
MOA-AD, a plebiscite covering the areas as enumerated in the list and depicted in the map as Category
A attached herein (the "Annex"). The Annex constitutes an integral part of this framework agreement.
Toward this end, the Parties shall endeavor to complete the negotiations and resolve all outstanding
issues on the Comprehensive Compact within fifteen (15) months from the signing of the MOA-AD.
xxxx
GOVERNANCE
xxxx
7. The Parties agree that mechanisms and modalities for the actual implementation of this MOA-AD shall
be spelt out in the Comprehensive Compact to mutually take such steps to enable it to occur effectively.
Any provisions of the MOA-AD requiring amendments to the existing legal framework shall come into
force upon the signing of a Comprehensive Compact and upon effecting the necessary changes to the
legal framework with due regard to non-derogation of prior agreements and within the stipulated
timeframe to be contained in the Comprehensive Compact.64 (Underscoring supplied)
The Solicitor General's arguments fail to persuade.
Concrete acts under the MOA-AD are not necessary to render the present controversy ripe. In Pimentel,
Jr. v. Aguirre,65 this Court held:
x x x [B]y the mere enactment of the questioned law or the approval of the challenged action, the dispute
is said to have ripened into a judicial controversy even without any other overt act. Indeed, even a
singular violation of the Constitution and/or the law is enough to awaken judicial duty.
xxxx
By the same token, when an act of the President, who in our constitutional scheme is a coequal of
Congress, is seriously alleged to have infringed the Constitution and the laws x x x settling the dispute
becomes the duty and the responsibility of the courts.66
In Santa Fe Independent School District v. Doe,67 the United States Supreme Court held that the
challenge to the constitutionality of the school's policy allowing student-led prayers and speeches before
games was ripe for adjudication, even if no public prayer had yet been led under the policy, because the
policy was being challenged as unconstitutional on its face.68
That the law or act in question is not yet effective does not negate ripeness. For example, in New York v.
United States,69 decided in 1992, the United States Supreme Court held that the action by the State of
New York challenging the provisions of the Low-Level Radioactive Waste Policy Act was ripe for
adjudication even if the questioned provision was not to take effect until January 1, 1996, because the
parties agreed that New York had to take immediate action to avoid the provision's consequences.70
The present petitions pray for Certiorari,71 Prohibition, and Mandamus. Certiorari and Prohibition are
remedies granted by law when any tribunal, board or officer has acted, in the case of certiorari, or is
proceeding, in the case of prohibition, without or in excess of its jurisdiction or with grave abuse of
discretion amounting to lack or excess of jurisdiction.72 Mandamus is a remedy granted by law when any
tribunal, corporation, board, officer or person unlawfully neglects the performance of an act which the law
specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes another from
the use or enjoyment of a right or office to which such other is entitled.73 Certiorari, Mandamus and
Prohibition are appropriate remedies to raise constitutional issues and to review and/or prohibit/nullify,
when proper, acts of legislative and executive officials.74
The authority of the GRP Negotiating Panel is defined by Executive Order No. 3 (E.O. No. 3), issued on
February 28, 2001.75 The said executive order requires that "[t]he government's policy framework for
peace, including the systematic approach and the administrative structure for carrying out the
comprehensive peace process x x x be governed by this Executive Order."76
The present petitions allege that respondents GRP Panel and PAPP Esperon drafted the terms of the MOA-
AD without consulting the local government units or communities affected, nor informing them of the
proceedings. As will be discussed in greater detail later, such omission, by itself, constitutes a departure by
respondents from their mandate under E.O. No. 3.
Furthermore, the petitions allege that the provisions of the MOA-AD violate the Constitution. The MOA-AD
provides that "any provisions of the MOA-AD requiring amendments to the existing legal framework shall
come into force upon the signing of a Comprehensive Compact and upon effecting the necessary changes
to the legal framework," implying an amendment of the Constitution to accommodate the MOA-AD. This
stipulation, in effect, guaranteed to the MILF the amendment of the Constitution. Such act constitutes
another violation of its authority. Again, these points will be discussed in more detail later.
As the petitions allege acts or omissions on the part of respondent that exceed their authority, by violating
their duties under E.O. No. 3 and the provisions of the Constitution and statutes, the petitions make a prima
facie case for Certiorari, Prohibition, and Mandamus, and an actual case or controversy ripe for adjudication
exists. When an act of a branch of government is seriously alleged to have infringed the
Constitution, it becomes not only the right but in fact the duty of the judiciary to settle the dispute.77
B. LOCUS STANDI
For a party to have locus standi, one must allege "such a personal stake in the outcome of the
controversy as to assure that concrete adverseness which sharpens the presentation of issues upon
which the court so largely depends for illumination of difficult constitutional questions."78
Because constitutional cases are often public actions in which the relief sought is likely to affect other
persons, a preliminary question frequently arises as to this interest in the constitutional question raised.79
When suing as a citizen, the person complaining must allege that he has been or is about to be denied
some right or privilege to which he is lawfully entitled or that he is about to be subjected to some burdens
or penalties by reason of the statute or act complained of.80 When the issue concerns a public right, it is
sufficient that the petitioner is a citizen and has an interest in the execution of the laws.81
For a taxpayer, one is allowed to sue where there is an assertion that public funds are illegally disbursed
or deflected to an illegal purpose, or that there is a wastage of public funds through the enforcement of an
invalid or unconstitutional law.82 The Court retains discretion whether or not to allow a taxpayer's suit.83
In the case of a legislator or member of Congress, an act of the Executive that injures the institution of
Congress causes a derivative but nonetheless substantial injury that can be questioned by legislators. A
member of the House of Representatives has standing to maintain inviolate the prerogatives, powers and
privileges vested by the Constitution in his office.84
An organization may be granted standing to assert the rights of its members,85 but the mere invocation
by the Integrated Bar of the Philippines or any member of the legal profession of the duty to preserve the
rule of law does not suffice to clothe it with standing.86
As regards a local government unit (LGU), it can seek relief in order to protect or vindicate an interest of
its own, and of the other LGUs.87
Intervenors, meanwhile, may be given legal standing upon showing of facts that satisfy the requirements
of the law authorizing intervention,88 such as a legal interest in the matter in litigation, or in the success
of either of the parties.
In any case, the Court has discretion to relax the procedural technicality on locus standi, given the liberal
attitude it has exercised, highlighted in the case of David v. Macapagal-Arroyo,89 where technicalities of
procedure were brushed aside, the constitutional issues raised being of paramount public interest or of
transcendental importance deserving the attention of the Court in view of their seriousness, novelty and
weight as precedents.90 The Court's forbearing stance on locus standi on issues involving constitutional
issues has for its purpose the protection of fundamental rights.
In not a few cases, the Court, in keeping with its duty under the Constitution to determine whether the
other branches of government have kept themselves within the limits of the Constitution and the laws and
have not abused the discretion given them, has brushed aside technical rules of procedure.91
In the petitions at bar, petitioners Province of North Cotabato (G.R. No. 183591) Province of
Zamboanga del Norte (G.R. No. 183951), City of Iligan (G.R. No. 183893) and City of Zamboanga
(G.R. No. 183752) and petitioners-in-intervention Province of Sultan Kudarat, City of Isabela and
Municipality of Linamon have locus standi in view of the direct and substantial injury that they, as LGUs,
would suffer as their territories, whether in whole or in part, are to be included in the intended domain of
the BJE. These petitioners allege that they did not vote for their inclusion in the ARMM which would be
expanded to form the BJE territory. Petitioners' legal standing is thus beyond doubt.
In G.R. No. 183962, petitioners Ernesto Maceda, Jejomar Binay and Aquilino Pimentel III would have
no standing as citizens and taxpayers for their failure to specify that they would be denied some right or
privilege or there would be wastage of public funds. The fact that they are a former Senator, an
incumbent mayor of Makati City, and a resident of Cagayan de Oro, respectively, is of no consequence.
Considering their invocation of the transcendental importance of the issues at hand, however, the Court
grants them standing.
Intervenors Franklin Drilon and Adel Tamano, in alleging their standing as taxpayers, assert that
government funds would be expended for the conduct of an illegal and unconstitutional plebiscite to
delineate the BJE territory. On that score alone, they can be given legal standing. Their allegation that the
issues involved in these petitions are of "undeniable transcendental importance" clothes them with added
basis for their personality to intervene in these petitions.
With regard to Senator Manuel Roxas, his standing is premised on his being a member of the Senate
and a citizen to enforce compliance by respondents of the public's constitutional right to be informed of
the MOA-AD, as well as on a genuine legal interest in the matter in litigation, or in the success or failure
of either of the parties. He thus possesses the requisite standing as an intervenor.
With respect to Intervenors Ruy Elias Lopez, as a former congressman of the 3rd district of Davao City,
a taxpayer and a member of the Bagobo tribe; Carlo B. Gomez, et al., as members of the IBP Palawan
chapter, citizens and taxpayers; Marino Ridao, as taxpayer, resident and member of the Sangguniang
Panlungsod of Cotabato City; and Kisin Buxani, as taxpayer, they failed to allege any proper legal
interest in the present petitions. Just the same, the Court exercises its discretion to relax the procedural
technicality on locus standi given the paramount public interest in the issues at hand.
Intervening respondents Muslim Multi-Sectoral Movement for Peace and Development, an advocacy
group for justice and the attainment of peace and prosperity in Muslim Mindanao; and Muslim Legal
Assistance Foundation Inc., a non-government organization of Muslim lawyers, allege that they stand to
be benefited or prejudiced, as the case may be, in the resolution of the petitions concerning the MOA-AD,
and prays for the denial of the petitions on the grounds therein stated. Such legal interest suffices to
clothe them with standing.
B. MOOTNESS
Respondents insist that the present petitions have been rendered moot with the satisfaction of all the
reliefs prayed for by petitioners and the subsequent pronouncement of the Executive Secretary that "[n]o
matter what the Supreme Court ultimately decides[,] the government will not sign the MOA."92
In lending credence to this policy decision, the Solicitor General points out that the President had already
disbanded the GRP Peace Panel.93
In David v. Macapagal-Arroyo,94 this Court held that the "moot and academic" principle not being a
magical formula that automatically dissuades courts in resolving a case, it will decide cases, otherwise
moot and academic, if it finds that (a) there is a grave violation of the Constitution;95 (b) the situation is of
exceptional character and paramount public interest is involved;96 (c) the constitutional issue raised
requires formulation of controlling principles to guide the bench, the bar, and the public;97 and (d) the
case is capable of repetition yet evading review.98
Another exclusionary circumstance that may be considered is where there is a voluntary cessation of the
activity complained of by the defendant or doer. Thus, once a suit is filed and the doer voluntarily ceases
the challenged conduct, it does not automatically deprive the tribunal of power to hear and determine the
case and does not render the case moot especially when the plaintiff seeks damages or prays for
injunctive relief against the possible recurrence of the violation.99
The present petitions fall squarely into these exceptions to thus thrust them into the domain of judicial
review. The grounds cited above in David are just as applicable in the present cases as they were, not
only in David, but also in Province of Batangas v. Romulo100 and Manalo v. Calderon101 where the
Court similarly decided them on the merits, supervening events that would ordinarily have rendered the
same moot notwithstanding.
Petitions not mooted
Contrary then to the asseverations of respondents, the non-signing of the MOA-AD and the eventual
dissolution of the GRP Peace Panel did not moot the present petitions. It bears emphasis that the signing
of the MOA-AD did not push through due to the Court's issuance of a Temporary Restraining Order.
Contrary too to respondents' position, the MOA-AD cannot be considered a mere "list of consensus
points," especially given its nomenclature, the need to have it signed or initialed by all the parties
concerned on August 5, 2008, and the far-reaching Constitutional implications of these "consensus
points," foremost of which is the creation of the BJE.
In fact, as what will, in the main, be discussed, there is a commitment on the part of respondents to
amend and effect necessary changes to the existing legal framework for certain provisions of the
MOA-AD to take effect. Consequently, the present petitions are not confined to the terms and provisions
of the MOA-AD, but to other on-going and future negotiations and agreements necessary for its
realization. The petitions have not, therefore, been rendered moot and academic simply by the public
disclosure of the MOA-AD,102 the manifestation that it will not be signed as well as the disbanding of the
GRP Panel not withstanding.
Petitions are imbued with paramount public interest
There is no gainsaying that the petitions are imbued with paramount public interest, involving a significant
part of the country's territory and the wide-ranging political modifications of affected LGUs. The assertion
that the MOA-AD is subject to further legal enactments including possible Constitutional
amendments more than ever provides impetus for the Court to formulate controlling principles to
guide the bench, the bar, the public and, in this case, the government and its negotiating entity.
Respondents cite Suplico v. NEDA, et al.103 where the Court did not "pontificat[e] on issues which no
longer legitimately constitute an actual case or controversy [as this] will do more harm than good to the
nation as a whole."
The present petitions must be differentiated from Suplico. Primarily, in Suplico, what was assailed and
eventually cancelled was a stand-alone government procurement contract for a national broadband
network involving a one-time contractual relation between two parties-the government and a private
foreign corporation. As the issues therein involved specific government procurement policies and
standard principles on contracts, the majority opinion in Suplico found nothing exceptional therein, the
factual circumstances being peculiar only to the transactions and parties involved in the controversy.
The MOA-AD is part of a series of agreements
In the present controversy, the MOA-AD is a significant part of a series of agreements necessary to
carry out the Tripoli Agreement 2001. The MOA-AD which dwells on the Ancestral Domain Aspect of said
Tripoli Agreement is the third such component to be undertaken following the implementation of the
Security Aspect in August 2001 and the Humanitarian, Rehabilitation and Development Aspect in May
2002.
Accordingly, even if the Executive Secretary, in his Memorandum of August 28, 2008 to the Solicitor
General, has stated that "no matter what the Supreme Court ultimately decides[,] the government will not
sign the MOA[-AD]," mootness will not set in in light of the terms of the Tripoli Agreement 2001.
Need to formulate principles-guidelines
Surely, the present MOA-AD can be renegotiated or another one will be drawn up to carry out the
Ancestral Domain Aspect of the Tripoli Agreement 2001, in another or in any form, which could
contain similar or significantly drastic provisions. While the Court notes the word of the Executive
Secretary that the government "is committed to securing an agreement that is both constitutional and
equitable because that is the only way that long-lasting peace can be assured," it is minded to render a
decision on the merits in the present petitions to formulate controlling principles to guide the bench,
the bar, the public and, most especially, the government in negotiating with the MILF regarding
Ancestral Domain.
Respondents invite the Court's attention to the separate opinion of then Chief Justice Artemio
Panganiban in Sanlakas v. Reyes104 in which he stated that the doctrine of "capable of repetition yet
evading review" can override mootness, "provided the party raising it in a proper case has been and/or
continue to be prejudiced or damaged as a direct result of their issuance." They contend that the Court
must have jurisdiction over the subject matter for the doctrine to be invoked.
The present petitions all contain prayers for Prohibition over which this Court exercises original
jurisdiction. While G.R. No. 183893 (City of Iligan v. GRP) is a petition for Injunction and Declaratory
Relief, the Court will treat it as one for Prohibition as it has far reaching implications and raises questions
that need to be resolved.105 At all events, the Court has jurisdiction over most if not the rest of the
petitions.
Indeed, the present petitions afford a proper venue for the Court to again apply the doctrine immediately
referred to as what it had done in a number of landmark cases.106 There is a reasonable expectation that
petitioners, particularly the Provinces of North Cotabato, Zamboanga del Norte and Sultan Kudarat, the
Cities of Zamboanga, Iligan and Isabela, and the Municipality of Linamon, will again be subjected to the
same problem in the future as respondents' actions are capable of repetition, in another or any form.
It is with respect to the prayers for Mandamus that the petitions have become moot, respondents having,
by Compliance of August 7, 2008, provided this Court and petitioners with official copies of the final draft
of the MOA-AD and its annexes. Too, intervenors have been furnished, or have procured for themselves,
copies of the MOA-AD.
V. SUBSTANTIVE ISSUES
As culled from the Petitions and Petitions-in-Intervention, there are basically two SUBSTANTIVE issues to
be resolved, one relating to the manner in which the MOA-AD was negotiated and finalized, the other
relating to its provisions, viz:
1. Did respondents violate constitutional and statutory provisions on public consultation and the right to
information when they negotiated and later initialed the MOA-AD?
2. Do the contents of the MOA-AD violate the Constitution and the laws?
ON THE FIRST SUBSTANTIVE ISSUE
Petitioners invoke their constitutional right to information on matters of public concern, as provided in
Section 7, Article III on the Bill of Rights:
Sec. 7. The right of the people to information on matters of public concern shall be recognized. Access to
official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as
well as to government research data used as basis for policy development, shall be afforded the citizen,
subject to such limitations as may be provided by law.107
As early as 1948, in Subido v. Ozaeta,108 the Court has recognized the statutory right to examine and
inspect public records, a right which was eventually accorded constitutional status.
The right of access to public documents, as enshrined in both the 1973 Constitution and the 1987
Constitution, has been recognized as a self-executory constitutional right.109
In the 1976 case of Baldoza v. Hon. Judge Dimaano,110 the Court ruled that access to public records is
predicated on the right of the people to acquire information on matters of public concern since,
undoubtedly, in a democracy, the pubic has a legitimate interest in matters of social and political
significance.
x x x The incorporation of this right in the Constitution is a recognition of the fundamental role of free
exchange of information in a democracy. There can be no realistic perception by the public of the nation's
problems, nor a meaningful democratic decision-making if they are denied access to information of
general interest. Information is needed to enable the members of society to cope with the exigencies of
the times. As has been aptly observed: "Maintaining the flow of such information depends on protection
for both its acquisition and its dissemination since, if either process is interrupted, the flow inevitably
ceases." x x x111
In the same way that free discussion enables members of society to cope with the exigencies of their time,
access to information of general interest aids the people in democratic decision-making by giving them a
better perspective of the vital issues confronting the nation112 so that they may be able to criticize and
participate in the affairs of the government in a responsible, reasonable and effective manner. It is by
ensuring an unfettered and uninhibited exchange of ideas among a well-informed public that a government
remains responsive to the changes desired by the people.113
The MOA-AD is a matter of public concern
That the subject of the information sought in the present cases is a matter of public concern114 faces no
serious challenge. In fact, respondents admit that the MOA-AD is indeed of public concern.115 In
previous cases, the Court found that the regularity of real estate transactions entered in the Register of
Deeds,116 the need for adequate notice to the public of the various laws,117 the civil service eligibility of
a public employee,118 the proper management of GSIS funds allegedly used to grant loans to public
officials,119 the recovery of the Marcoses' alleged ill-gotten wealth,120 and the identity of party-list
nominees,121 among others, are matters of public concern. Undoubtedly, the MOA-AD subject of the
present cases is of public concern, involving as it does the sovereignty and territorial integrity of
the State, which directly affects the lives of the public at large.
Matters of public concern covered by the right to information include steps and negotiations leading to the
consummation of the contract. In not distinguishing as to the executory nature or commercial character of
agreements, the Court has categorically ruled:
x x x [T]he right to information "contemplates inclusion of negotiations leading to the consummation
of the transaction." Certainly, a consummated contract is not a requirement for the exercise of the right
to information. Otherwise, the people can never exercise the right if no contract is consummated, and if
one is consummated, it may be too late for the public to expose its defects.
Requiring a consummated contract will keep the public in the dark until the contract, which may be
grossly disadvantageous to the government or even illegal, becomes fait accompli. This negates the
State policy of full transparency on matters of public concern, a situation which the framers of the
Constitution could not have intended. Such a requirement will prevent the citizenry from participating in
the public discussion of any proposed contract, effectively truncating a basic right enshrined in the Bill of
Rights. We can allow neither an emasculation of a constitutional right, nor a retreat by the State of its
avowed "policy of full disclosure of all its transactions involving public interest."122 (Emphasis and italics
in the original)
Intended as a "splendid symmetry"123 to the right to information under the Bill of Rights is the policy of
public disclosure under Section 28, Article II of the Constitution reading:
Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of
full public disclosure of all its transactions involving public interest.124
The policy of full public disclosure enunciated in above-quoted Section 28 complements the right of
access to information on matters of public concern found in the Bill of Rights. The right to information
guarantees the right of the people to demand information, while Section 28 recognizes the duty of
officialdom to give information even if nobody demands.125
The policy of public disclosure establishes a concrete ethical principle for the conduct of public affairs in a
genuinely open democracy, with the people's right to know as the centerpiece. It is a mandate of the
State to be accountable by following such policy.126 These provisions are vital to the exercise of the
freedom of expression and essential to hold public officials at all times accountable to the people.127
Whether Section 28 is self-executory, the records of the deliberations of the Constitutional Commission
so disclose:
MR. SUAREZ. And since this is not self-executory, this policy will not be enunciated or will not be in force
and effect until after Congress shall have provided it.
MR. OPLE. I expect it to influence the climate of public ethics immediately but, of course, the
implementing law will have to be enacted by Congress, Mr. Presiding Officer.128
The following discourse, after Commissioner Hilario Davide, Jr., sought clarification on the issue, is
enlightening.
MR. DAVIDE. I would like to get some clarifications on this. Mr. Presiding Officer, did I get the Gentleman
correctly as having said that this is not a self-executing provision? It would require a legislation by
Congress to implement?
MR. OPLE. Yes. Originally, it was going to be self-executing, but I accepted an amendment from
Commissioner Regalado, so that the safeguards on national interest are modified by the clause "as may
be provided by law"
MR. DAVIDE. But as worded, does it not mean that this will immediately take effect and Congress
may provide for reasonable safeguards on the sole ground national interest?
MR. OPLE. Yes. I think so, Mr. Presiding Officer, I said earlier that it should immediately influence
the climate of the conduct of public affairs but, of course, Congress here may no longer pass a law
revoking it, or if this is approved, revoking this principle, which is inconsistent with this policy.129
(Emphasis supplied)
Indubitably, the effectivity of the policy of public disclosure need not await the passing of a statute.
As Congress cannot revoke this principle, it is merely directed to provide for "reasonable safeguards."
The complete and effective exercise of the right to information necessitates that its complementary
provision on public disclosure derive the same self-executory nature. Since both provisions go hand-in-
hand, it is absurd to say that the broader130 right to information on matters of public concern is already
enforceable while the correlative duty of the State to disclose its transactions involving public interest is
not enforceable until there is an enabling law. Respondents cannot thus point to the absence of an
implementing legislation as an excuse in not effecting such policy.
An essential element of these freedoms is to keep open a continuing dialogue or process of
communication between the government and the people. It is in the interest of the State that the channels
for free political discussion be maintained to the end that the government may perceive and be
responsive to the people's will.131 Envisioned to be corollary to the twin rights to information and
disclosure is the design for feedback mechanisms.
MS. ROSARIO BRAID. Yes. And lastly, Mr. Presiding Officer, will the people be able to participate?
Will the government provide feedback mechanisms so that the people can participate and can
react where the existing media facilities are not able to provide full feedback mechanisms to the
government? I suppose this will be part of the government implementing operational
mechanisms.
MR. OPLE. Yes. I think through their elected representatives and that is how these courses take place.
There is a message and a feedback, both ways.
xxxx
MS. ROSARIO BRAID. Mr. Presiding Officer, may I just make one last sentence?
I think when we talk about the feedback network, we are not talking about public officials but also
network of private business o[r] community-based organizations that will be reacting. As a matter of
fact, we will put more credence or credibility on the private network of volunteers and voluntary community-
based organizations. So I do not think we are afraid that there will be another OMA in the making.132
(Emphasis supplied)
The imperative of a public consultation, as a species of the right to information, is evident in the "marching
orders" to respondents. The mechanics for the duty to disclose information and to conduct public
consultation regarding the peace agenda and process is manifestly provided by E.O. No. 3.133 The
preambulatory clause of E.O. No. 3 declares that there is a need to further enhance the contribution of civil
society to the comprehensive peace process by institutionalizing the people's participation.
One of the three underlying principles of the comprehensive peace process is that it "should be community-
based, reflecting the sentiments, values and principles important to all Filipinos" and "shall be defined not
by the government alone, nor by the different contending groups only, but by all Filipinos as one
community."134 Included as a component of the comprehensive peace process is consensus-building and
empowerment for peace, which includes "continuing consultations on both national and local levels to build
consensus for a peace agenda and process, and the mobilization and facilitation of people's participation
in the peace process."135
Clearly, E.O. No. 3 contemplates not just the conduct of a plebiscite to effectuate "continuing"
consultations, contrary to respondents' position that plebiscite is "more than sufficient
consultation."136
Further, E.O. No. 3 enumerates the functions and responsibilities of the PAPP, one of which is to "[c]onduct
regular dialogues with the National Peace Forum (NPF) and other peace partners to seek relevant
information, comments, recommendations as well as to render appropriate and timely reports on the
progress of the comprehensive peace process."137 E.O. No. 3 mandates the establishment of the NPF to
be "the principal forum for the PAPP to consult with and seek advi[c]e from the peace advocates, peace
partners and concerned sectors of society on both national and local levels, on the implementation of the
comprehensive peace process, as well as for government[-]civil society dialogue and consensus-building
on peace agenda and initiatives."138
In fine, E.O. No. 3 establishes petitioners' right to be consulted on the peace agenda, as a corollary
to the constitutional right to information and disclosure.
PAPP Esperon committed grave abuse of discretion
The PAPP committed grave abuse of discretion when he failed to carry out the pertinent consultation.
The furtive process by which the MOA-AD was designed and crafted runs contrary to and in excess of
the legal authority, and amounts to a whimsical, capricious, oppressive, arbitrary and despotic exercise
thereof.
The Court may not, of course, require the PAPP to conduct the consultation in a particular way or
manner. It may, however, require him to comply with the law and discharge the functions within the
authority granted by the President.139
Petitioners are not claiming a seat at the negotiating table, contrary to respondents' retort in justifying the
denial of petitioners' right to be consulted. Respondents' stance manifests the manner by which they treat
the salient provisions of E.O. No. 3 on people's participation. Such disregard of the express mandate of
the President is not much different from superficial conduct toward token provisos that border on classic
lip service.140 It illustrates a gross evasion of positive duty and a virtual refusal to perform the duty
enjoined.
As for respondents' invocation of the doctrine of executive privilege, it is not tenable under the premises.
The argument defies sound reason when contrasted with E.O. No. 3's explicit provisions on continuing
consultation and dialogue on both national and local levels. The executive order even recognizes the
exercise of the public's right even before the GRP makes its official recommendations or before the
government proffers its definite propositions.141 It bear emphasis that E.O. No. 3 seeks to elicit relevant
advice, information, comments and recommendations from the people through dialogue.
AT ALL EVENTS, respondents effectively waived the defense of executive privilege in view of their
unqualified disclosure of the official copies of the final draft of the MOA-AD. By unconditionally complying
with the Court's August 4, 2008 Resolution, without a prayer for the document's disclosure in camera, or
without a manifestation that it was complying therewith ex abundante ad cautelam.
Petitioners' assertion that the Local Government Code (LGC) of 1991 declares it a State policy to "require
all national agencies and offices to conduct periodic consultations with appropriate local government
units, non-governmental and people's organizations, and other concerned sectors of the community
before any project or program is implemented in their respective jurisdictions"142 is well-taken. The LGC
chapter on intergovernmental relations puts flesh into this avowed policy:
Prior Consultations Required. - No project or program shall be implemented by government authorities
unless the consultations mentioned in Sections 2 (c) and 26 hereof are complied with, and prior approval
of the sanggunian concerned is obtained: Provided, That occupants in areas where such projects are to be
implemented shall not be evicted unless appropriate relocation sites have been provided, in accordance
with the provisions of the Constitution.143 (Italics and underscoring supplied)
In Lina, Jr. v. Hon. 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,146 which could
pervasively and drastically result to the diaspora or displacement of a great number of inhabitants
from their total environment.
With respect to the indigenous cultural communities/indigenous peoples (ICCs/IPs), whose interests are
represented herein by petitioner Lopez and are adversely affected by the MOA-AD, the ICCs/IPs have,
under the IPRA, the right to participate fully at all levels of decision-making in matters which may affect their
rights, lives and destinies.147 The MOA-AD, an instrument recognizing ancestral domain, failed to justify
its non-compliance with the clear-cut mechanisms ordained in said Act,148 which entails, among other
things, the observance of the free and prior informed consent of the ICCs/IPs.
Notably, the IPRA does not grant the Executive Department or any government agency the power to
delineate and recognize an ancestral domain claim by mere agreement or compromise. The recognition of
the ancestral domain is the raison d'etre of the MOA-AD, without which all other stipulations or "consensus
points" necessarily must fail. In proceeding to make a sweeping declaration on ancestral domain, without
complying with the IPRA, which is cited as one of the TOR of the MOA-AD, respondents clearly
transcended the boundaries of their authority. As it seems, even the heart of the MOA-AD is still subject
to necessary changes to the legal framework. While paragraph 7 on Governance suspends the effectivity
of all provisions requiring changes to the legal framework, such clause is itself invalid, as will be discussed
in the following section.
Indeed, ours is an open society, with all the acts of the government subject to public scrutiny and available
always to public cognizance. This has to be so if the country is to remain democratic, with sovereignty
residing in the people and all government authority emanating from them.149
ON THE SECOND SUBSTANTIVE ISSUE
With regard to the provisions of the MOA-AD, there can be no question that they cannot all be
accommodated under the present Constitution and laws. Respondents have admitted as much in the oral
arguments before this Court, and the MOA-AD itself recognizes the need to amend the existing legal
framework to render effective at least some of its provisions. Respondents, nonetheless, counter that the
MOA-AD is free of any legal infirmity because any provisions therein which are inconsistent with the
present legal framework will not be effective until the necessary changes to that framework are made.
The validity of this argument will be considered later. For now, the Court shall pass upon how
The MOA-AD is inconsistent with the Constitution and laws as presently worded.
In general, the objections against the MOA-AD center on the extent of the powers conceded therein to the
BJE. Petitioners assert that the powers granted to the BJE exceed those granted to any local government
under present laws, and even go beyond those of the present ARMM. Before assessing some of the
specific powers that would have been vested in the BJE, however, it would be useful to turn first to a
general idea that serves as a unifying link to the different provisions of the MOA-AD, namely, the
international law concept of association. Significantly, the MOA-AD explicitly alludes to this concept,
indicating that the Parties actually framed its provisions with it in mind.
Association is referred to in paragraph 3 on TERRITORY, paragraph 11 on RESOURCES, and
paragraph 4 on GOVERNANCE. It is in the last mentioned provision, however, that the MOA-AD most
clearly uses it to describe the envisioned relationship between the BJE and the Central Government.
4. The relationship between the Central Government and the Bangsamoro juridical entity shall be
associative characterized by shared authority and responsibility with a structure of governance
based on executive, legislative, judicial and administrative institutions with defined powers and functions
in the comprehensive compact. A period of transition shall be established in a comprehensive peace
compact specifying the relationship between the Central Government and the BJE. (Emphasis and
underscoring supplied)
The nature of the "associative" relationship may have been intended to be defined more precisely in the
still to be forged Comprehensive Compact. Nonetheless, given that there is a concept of "association" in
international law, and the MOA-AD - by its inclusion of international law instruments in its TOR- placed
itself in an international legal context, that concept of association may be brought to bear in
understanding the use of the term "associative" in the MOA-AD.
Keitner and Reisman state that
[a]n association is formed when two states of unequal power voluntarily establish durable links. In the
basic model, one state, the associate, delegates certain responsibilities to the other, the principal,
while maintaining its international status as a state. Free associations represent a middle ground
between integration and independence. x x x150 (Emphasis and underscoring supplied)
For purposes of illustration, the Republic of the Marshall Islands and the Federated States of Micronesia
(FSM), formerly part of the U.S.-administered Trust Territory of the Pacific Islands,151 are associated
states of the U.S. pursuant to a Compact of Free Association. The currency in these countries is the U.S.
dollar, indicating their very close ties with the U.S., yet they issue their own travel documents, which is a
mark of their statehood. Their international legal status as states was confirmed by the UN Security
Council and by their admission to UN membership.
According to their compacts of free association, the Marshall Islands and the FSM generally have the
capacity to conduct foreign affairs in their own name and right, such capacity extending to matters such
as the law of the sea, marine resources, trade, banking, postal, civil aviation, and cultural relations. The
U.S. government, when conducting its foreign affairs, is obligated to consult with the governments of the
Marshall Islands or the FSM on matters which it (U.S. government) regards as relating to or affecting
either government.
In the event of attacks or threats against the Marshall Islands or the FSM, the U.S. government has the
authority and obligation to defend them as if they were part of U.S. territory. The U.S. government,
moreover, has the option of establishing and using military areas and facilities within these associated
states and has the right to bar the military personnel of any third country from having access to these
territories for military purposes.
It bears noting that in U.S. constitutional and international practice, free association is understood as an
international association between sovereigns. The Compact of Free Association is a treaty which is
subordinate to the associated nation's national constitution, and each party may terminate the association
consistent with the right of independence. It has been said that, with the admission of the U.S.-associated
states to the UN in 1990, the UN recognized that the American model of free association is actually based
on an underlying status of independence.152
In international practice, the "associated state" arrangement has usually been used as a transitional
device of former colonies on their way to full independence. Examples of states that have passed
through the status of associated states as a transitional phase are Antigua, St. Kitts-Nevis-Anguilla,
Dominica, St. Lucia, St. Vincent and Grenada. All have since become independent states.153
Back to the MOA-AD, it contains many provisions which are consistent with the international legal
concept of association, specifically the following: the BJE's capacity to enter into economic and trade
relations with foreign countries, the commitment of the Central Government to ensure the BJE's
participation in meetings and events in the ASEAN and the specialized UN agencies, and the continuing
responsibility of the Central Government over external defense. Moreover, the BJE's right to participate in
Philippine official missions bearing on negotiation of border agreements, environmental protection, and
sharing of revenues pertaining to the bodies of water adjacent to or between the islands forming part of
the ancestral domain, resembles the right of the governments of FSM and the Marshall Islands to be
consulted by the U.S. government on any foreign affairs matter affecting them.
These provisions of the MOA indicate, among other things, that the Parties aimed to vest in the BJE the
status of an associated state or, at any rate, a status closely approximating it.
The concept of association is not recognized under the present Constitution
No province, city, or municipality, not even the ARMM, is recognized under our laws as having an
"associative" relationship with the national government. Indeed, the concept implies powers that go
beyond anything ever granted by the Constitution to any local or regional government. It also implies the
recognition of the associated entity as a state. The Constitution, however, does not contemplate any state
in this jurisdiction other than the Philippine State, much less does it provide for a transitory status that
aims to prepare any part of Philippine territory for independence.
Even the mere concept animating many of the MOA-AD's provisions, therefore, already requires for its
validity the amendment of constitutional provisions, specifically the following provisions of Article X:
SECTION 1. The territorial and political subdivisions of the Republic of the Philippines are the provinces,
cities, municipalities, and barangays. There shall be autonomous regions in Muslim Mindanao and
the Cordilleras as hereinafter provided.
SECTION 15. There shall be created autonomous regions in Muslim Mindanao and in the Cordilleras
consisting of provinces, cities, municipalities, and geographical areas sharing common and distinctive
historical and cultural heritage, economic and social structures, and other relevant characteristics within
the framework of this Constitution and the national sovereignty as well as territorial integrity of
the Republic of the Philippines.
The BJE is a far more powerful
entity than the autonomous region
recognized in the Constitution
It is not merely an expanded version of the ARMM, the status of its relationship with the national
government being fundamentally different from that of the ARMM. Indeed, BJE is a state in all but name
as it meets the criteria of a state laid down in the Montevideo Convention,154 namely, a permanent
population, a defined territory, a government, and a capacity to enter into relations with other states.
Even assuming arguendo that the MOA-AD would not necessarily sever any portion of Philippine territory,
the spirit animating it - which has betrayed itself by its use of the concept of association - runs counter
to the national sovereignty and territorial integrity of the Republic.
The defining concept underlying the relationship between the national government and the BJE
being itself contrary to the present Constitution, it is not surprising that many of the specific
provisions of the MOA-AD on the formation and powers of the BJE are in conflict with the
Constitution and the laws.
Article X, Section 18 of the Constitution provides that "[t]he creation of the autonomous region shall be
effective when approved by a majority of the votes cast by the constituent units in a plebiscite called for the
purpose, provided that only provinces, cities, and geographic areas voting favorably in such
plebiscite shall be included in the autonomous region." (Emphasis supplied)
As reflected above, the BJE is more of a state than an autonomous region. But even assuming that it is
covered by the term "autonomous region" in the constitutional provision just quoted, the MOA-AD would
still be in conflict with it. Under paragraph 2(c) on TERRITORY in relation to 2(d) and 2(e), the present
geographic area of the ARMM and, in addition, the municipalities of Lanao del Norte which voted for
inclusion in the ARMM during the 2001 plebiscite - Baloi, Munai, Nunungan, Pantar, Tagoloan and Tangkal
- are automatically part of the BJE without need of another plebiscite, in contrast to the areas under
Categories A and B mentioned earlier in the overview. That the present components of the ARMM and the
above-mentioned municipalities voted for inclusion therein in 2001, however, does not render another
plebiscite unnecessary under the Constitution, precisely because what these areas voted for then was their
inclusion in the ARMM, not the BJE.
The MOA-AD, moreover, would not
comply with Article X, Section 20 of
the Constitution
since that provision defines the powers of autonomous regions as follows:
SECTION 20. Within its territorial jurisdiction and subject to the provisions of this Constitution and national
laws, the organic act of autonomous regions shall provide for legislative powers over:
(1) Administrative organization;
(2) Creation of sources of revenues;
(3) Ancestral domain and natural resources;
(4) Personal, family, and property relations;
(5) Regional urban and rural planning development;
(6) Economic, social, and tourism development;
(7) Educational policies;
(8) Preservation and development of the cultural heritage; and
(9) Such other matters as may be authorized by law for the promotion of the general welfare of the people
of the region. (Underscoring supplied)
Again on the premise that the BJE may be regarded as an autonomous region, the MOA-AD would
require an amendment that would expand the above-quoted provision. The mere passage of new
legislation pursuant to sub-paragraph No. 9 of said constitutional provision would not suffice, since any
new law that might vest in the BJE the powers found in the MOA-AD must, itself, comply with other
provisions of the Constitution. It would not do, for instance, to merely pass legislation vesting the BJE with
treaty-making power in order to accommodate paragraph 4 of the strand on RESOURCES which states:
"The BJE is free to enter into any economic cooperation and trade relations with foreign countries:
provided, however, that such relationships and understandings do not include aggression against the
Government of the Republic of the Philippines x x x." Under our constitutional system, it is only the
President who has that power. Pimentel v. Executive Secretary155 instructs:
In our system of government, the President, being the head of state, is regarded as the sole organ and
authority in external relations and is the country's sole representative with foreign nations. As the
chief architect of foreign policy, the President acts as the country's mouthpiece with respect to
international affairs. Hence, the President is vested with the authority to deal with foreign states and
governments, extend or withhold recognition, maintain diplomatic relations, enter into treaties, and
otherwise transact the business of foreign relations. In the realm of treaty-making, the President
has the sole authority to negotiate with other states. (Emphasis and underscoring supplied)
Article II, Section 22 of the Constitution must also be amended if the scheme envisioned in the MOA-
AD is to be effected. That constitutional provision states: "The State recognizes and promotes the rights
of indigenous cultural communities within the framework of national unity and development." (Underscoring
supplied) An associative arrangement does not uphold national unity. While there may be a semblance of
unity because of the associative ties between the BJE and the national government, the act of placing a
portion of Philippine territory in a status which, in international practice, has generally been a preparation
for independence, is certainly not conducive to national unity.
Besides being irreconcilable with the Constitution, the MOA-AD is also inconsistent with prevailing
statutory law, among which are R.A. No. 9054156 or the Organic Act of the ARMM, and the IPRA.157
Article X, Section 3 of the Organic Act of the ARMM is a bar to the adoption of the definition of
"Bangsamoro people" used in the MOA-AD. Paragraph 1 on Concepts and Principles states:
1. It is the birthright of all Moros and all Indigenous peoples of Mindanao to identify themselves and
be accepted as "Bangsamoros". The Bangsamoro people refers to those who are natives or original
inhabitants of Mindanao and its adjacent islands including Palawan and the Sulu archipelago at the
time of conquest or colonization of its descendants whether mixed or of full blood. Spouses and their
descendants are classified as Bangsamoro. The freedom of choice of the Indigenous people shall be
respected. (Emphasis and underscoring supplied)
This use of the term Bangsamoro sharply contrasts with that found in the Article X, Section 3 of the Organic
Act, which, rather than lumping together the identities of the Bangsamoro and other indigenous peoples
living in Mindanao, clearly distinguishes between Bangsamoro people and Tribal peoples, as follows:
"As used in this Organic Act, the phrase "indigenous cultural community" refers to Filipino citizens
residing in the autonomous region who are:
(a) Tribal peoples. These are citizens whose social, cultural and economic conditions distinguish them
from other sectors of the national community; and
(b) Bangsa Moro people. These are citizens who are believers in Islam and who have retained some
or all of their own social, economic, cultural, and political institutions."
Respecting the IPRA, it lays down the prevailing procedure for the delineation and recognition of ancestral
domains. The MOA-AD's manner of delineating the ancestral domain of the Bangsamoro people is a clear
departure from that procedure. By paragraph 1 of Territory, the Parties simply agree that, subject to the
delimitations in the agreed Schedules, "[t]he Bangsamoro homeland and historic territory refer to the land
mass as well as the maritime, terrestrial, fluvial and alluvial domains, and the aerial domain, the atmospheric
space above it, embracing the Mindanao-Sulu-Palawan geographic region."
Chapter VIII of the IPRA, on the other hand, lays down a detailed procedure, as illustrated in the following
provisions thereof:
SECTION 52. Delineation Process. - The identification and delineation of ancestral domains shall be done
in accordance with the following procedures:
xxxx
b) Petition for Delineation. - The process of delineating a specific perimeter may be initiated by the NCIP
with the consent of the ICC/IP concerned, or through a Petition for Delineation filed with the NCIP, by a
majority of the members of the ICCs/IPs;
c) Delineation Proper. - The official delineation of ancestral domain boundaries including census of all
community members therein, shall be immediately undertaken by the Ancestral Domains Office upon filing
of the application by the ICCs/IPs concerned. Delineation will be done in coordination with the community
concerned and shall at all times include genuine involvement and participation by the members of the
communities concerned;
d) Proof Required. - Proof of Ancestral Domain Claims shall include the testimony of elders or community
under oath, and other documents directly or indirectly attesting to the possession or occupation of the area
since time immemorial by such ICCs/IPs in the concept of owners which shall be any one (1) of the following
authentic documents:
1) Written accounts of the ICCs/IPs customs and traditions;
2) Written accounts of the ICCs/IPs political structure and institution;
3) Pictures showing long term occupation such as those of old improvements, burial grounds, sacred places
and old villages;
4) Historical accounts, including pacts and agreements concerning boundaries entered into by the ICCs/IPs
concerned with other ICCs/IPs;
5) Survey plans and sketch maps;
6) Anthropological data;
7) Genealogical surveys;
8) Pictures and descriptive histories of traditional communal forests and hunting grounds;
9) Pictures and descriptive histories of traditional landmarks such as mountains, rivers, creeks, ridges, hills,
terraces and the like; and
10) Write-ups of names and places derived from the native dialect of the community.
e) Preparation of Maps. - On the basis of such investigation and the findings of fact based thereon, the
Ancestral Domains Office of the NCIP shall prepare a perimeter map, complete with technical descriptions,
and a description of the natural features and landmarks embraced therein;
f) Report of Investigation and Other Documents. - A complete copy of the preliminary census and a report
of investigation, shall be prepared by the Ancestral Domains Office of the NCIP;
g) Notice and Publication. - A copy of each document, including a translation in the native language of the
ICCs/IPs concerned shall be posted in a prominent place therein for at least fifteen (15) days. A copy of the
document shall also be posted at the local, provincial and regional offices of the NCIP, and shall be
published in a newspaper of general circulation once a week for two (2) consecutive weeks to allow other
claimants to file opposition thereto within fifteen (15) days from date of such publication: Provided, That in
areas where no such newspaper exists, broadcasting in a radio station will be a valid substitute: Provided,
further, That mere posting shall be deemed sufficient if both newspaper and radio station are not available;
h) Endorsement to NCIP. - Within fifteen (15) days from publication, and of the inspection process, the
Ancestral Domains Office shall prepare a report to the NCIP endorsing a favorable action upon a claim that
is deemed to have sufficient proof. However, if the proof is deemed insufficient, the Ancestral Domains
Office shall require the submission of additional evidence: Provided, That the Ancestral Domains Office
shall reject any claim that is deemed patently false or fraudulent after inspection and verification: Provided,
further, That in case of rejection, the Ancestral Domains Office shall give the applicant due notice, copy
furnished all concerned, containing the grounds for denial. The denial shall be appealable to the NCIP:
Provided, furthermore, That in cases where there are conflicting claims among ICCs/IPs on the boundaries
of ancestral domain claims, the Ancestral Domains Office shall cause the contending parties to meet and
assist them in coming up with a preliminary resolution of the conflict, without prejudice to its full adjudication
according to the section below.
To remove all doubts about the irreconcilability of the MOA-AD with the present legal system, a
discussion of not only the Constitution and domestic statutes, but also of international law is in order, for
Article II, Section 2 of the Constitution states that the Philippines "adopts the generally accepted
principles of international law as part of the law of the land."
Applying this provision of the Constitution, the Court, in Mejoff v. Director of Prisons,158 held that the
Universal Declaration of Human Rights is part of the law of the land on account of which it ordered the
release on bail of a detained alien of Russian descent whose deportation order had not been executed
even after two years. Similarly, the Court in Agustin v. Edu159 applied the aforesaid constitutional
provision to the 1968 Vienna Convention on Road Signs and Signals.
International law has long recognized the right to self-determination of "peoples," understood not merely
as the entire population of a State but also a portion thereof. In considering the question of whether the
people of Quebec had a right to unilaterally secede from Canada, the Canadian Supreme Court in
REFERENCE RE SECESSION OF QUEBEC160 had occasion to acknowledge that "the right of a people
to self-determination is now so widely recognized in international conventions that the principle has
acquired a status beyond ‘convention' and is considered a general principle of international law."
Among the conventions referred to are the International Covenant on Civil and Political Rights161 and the
International Covenant on Economic, Social and Cultural Rights162 which state, in Article 1 of both
covenants, that all peoples, by virtue of the right of self-determination, "freely determine their political
status and freely pursue their economic, social, and cultural development."
The people's right to self-determination should not, however, be understood as extending to a unilateral
right of secession. A distinction should be made between the right of internal and external self-
determination. REFERENCE RE SECESSION OF QUEBEC is again instructive:
"(ii) Scope of the Right to Self-determination
126. The recognized sources of international law establish that the right to self-determination of a
people is normally fulfilled through internal self-determination - a people's pursuit of its political,
economic, social and cultural development within the framework of an existing state. A right to
external self-determination (which in this case potentially takes the form of the assertion of a right
to unilateral secession) arises in only the most extreme of cases and, even then, under carefully
defined circumstances. x x x
External self-determination can be defined as in the following statement from the Declaration on
Friendly Relations, supra, as
The establishment of a sovereign and independent State, the free association or integration with an
independent State or the emergence into any other political status freely determined by a people
constitute modes of implementing the right of self-determination by that people. (Emphasis added)
127. The international law principle of self-determination has evolved within a framework of respect
for the territorial integrity of existing states. The various international documents that support the
existence of a people's right to self-determination also contain parallel statements supportive of the
conclusion that the exercise of such a right must be sufficiently limited to prevent threats to an existing
state's territorial integrity or the stability of relations between sovereign states.
x x x x (Emphasis, italics and underscoring supplied)
The Canadian Court went on to discuss the exceptional cases in which the right to external self-
determination can arise, namely, where a people is under colonial rule, is subject to foreign domination or
exploitation outside a colonial context, and - less definitely but asserted by a number of commentators - is
blocked from the meaningful exercise of its right to internal self-determination. The Court ultimately held
that the population of Quebec had no right to secession, as the same is not under colonial rule or foreign
domination, nor is it being deprived of the freedom to make political choices and pursue economic, social
and cultural development, citing that Quebec is equitably represented in legislative, executive and judicial
institutions within Canada, even occupying prominent positions therein.
The exceptional nature of the right of secession is further exemplified in the REPORT OF THE
INTERNATIONAL COMMITTEE OF JURISTS ON THE LEGAL ASPECTS OF THE AALAND ISLANDS
QUESTION.163 There, Sweden presented to the Council of the League of Nations the question of whether
the inhabitants of the Aaland Islands should be authorized to determine by plebiscite if the archipelago
should remain under Finnish sovereignty or be incorporated in the kingdom of Sweden. The Council, before
resolving the question, appointed an International Committee composed of three jurists to submit an opinion
on the preliminary issue of whether the dispute should, based on international law, be entirely left to the
domestic jurisdiction of Finland. The Committee stated the rule as follows:
x x x [I]n the absence of express provisions in international treaties, the right of disposing of national
territory is essentially an attribute of the sovereignty of every State. Positive International Law does
not recognize the right of national groups, as such, to separate themselves from the State of which
they form part by the simple expression of a wish, any more than it recognizes the right of other States
to claim such a separation. Generally speaking, the grant or refusal of the right to a portion of its
population of determining its own political fate by plebiscite or by some other method, is,
exclusively, an attribute of the sovereignty of every State which is definitively constituted. A dispute
between two States concerning such a question, under normal conditions therefore, bears upon a question
which International Law leaves entirely to the domestic jurisdiction of one of the States concerned. Any
other solution would amount to an infringement of sovereign rights of a State and would involve the risk of
creating difficulties and a lack of stability which would not only be contrary to the very idea embodied in
term "State," but would also endanger the interests of the international community. If this right is not
possessed by a large or small section of a nation, neither can it be held by the State to which the national
group wishes to be attached, nor by any other State. (Emphasis and underscoring supplied)
The Committee held that the dispute concerning the Aaland Islands did not refer to a question which is left
by international law to the domestic jurisdiction of Finland, thereby applying the exception rather than the
rule elucidated above. Its ground for departing from the general rule, however, was a very narrow one,
namely, the Aaland Islands agitation originated at a time when Finland was undergoing drastic political
transformation. The internal situation of Finland was, according to the Committee, so abnormal that, for a
considerable time, the conditions required for the formation of a sovereign State did not exist. In the midst
of revolution, anarchy, and civil war, the legitimacy of the Finnish national government was disputed by a
large section of the people, and it had, in fact, been chased from the capital and forcibly prevented from
carrying out its duties. The armed camps and the police were divided into two opposing forces. In light of
these circumstances, Finland was not, during the relevant time period, a "definitively constituted" sovereign
state. The Committee, therefore, found that Finland did not possess the right to withhold from a portion of
its population the option to separate itself - a right which sovereign nations generally have with respect to
their own populations.
Turning now to the more specific category of indigenous peoples, this term has been used, in scholarship
as well as international, regional, and state practices, to refer to groups with distinct cultures, histories, and
connections to land (spiritual and otherwise) that have been forcibly incorporated into a larger governing
society. These groups are regarded as "indigenous" since they are the living descendants of pre-invasion
inhabitants of lands now dominated by others. Otherwise stated, indigenous peoples, nations, or
communities are culturally distinctive groups that find themselves engulfed by settler societies born of the
forces of empire and conquest.164 Examples of groups who have been regarded as indigenous peoples
are the Maori of New Zealand and the aboriginal peoples of Canada.
As with the broader category of "peoples," indigenous peoples situated within states do not have a general
right to independence or secession from those states under international law,165 but they do have rights
amounting to what was discussed above as the right to internal self-determination.
In a historic development last September 13, 2007, the UN General Assembly adopted the United Nations
Declaration on the Rights of Indigenous Peoples (UN DRIP) through General Assembly Resolution
61/295. The vote was 143 to 4, the Philippines being included among those in favor, and the four voting
against being Australia, Canada, New Zealand, and the U.S. The Declaration clearly recognized the right
of indigenous peoples to self-determination, encompassing the right to autonomy or self-
government, to wit:
Article 3
Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their
political status and freely pursue their economic, social and cultural development.
Article 4
Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-
government in matters relating to their internal and local affairs, as well as ways and means for
financing their autonomous functions.
Article 5
Indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic,
social and cultural institutions, while retaining their right to participate fully, if they so choose, in the
political, economic, social and cultural life of the State.
Self-government, as used in international legal discourse pertaining to indigenous peoples, has been
understood as equivalent to "internal self-determination."166 The extent of self-determination provided for
in the UN DRIP is more particularly defined in its subsequent articles, some of which are quoted
hereunder:
Article 8
1. Indigenous peoples and individuals have the right not to be subjected to forced assimilation or
destruction of their culture.
2. States shall provide effective mechanisms for prevention of, and redress for:
(a) Any action which has the aim or effect of depriving them of their integrity as distinct peoples,
or of their cultural values or ethnic identities;
(b) Any action which has the aim or effect of dispossessing them of their lands, territories or
resources;
(c) Any form of forced population transfer which has the aim or effect of violating or undermining
any of their rights;
(d) Any form of forced assimilation or integration;
(e) Any form of propaganda designed to promote or incite racial or ethnic discrimination directed
against them.
Article 21
1. Indigenous peoples have the right, without discrimination, to the improvement of their economic and
social conditions, including, inter alia, in the areas of education, employment, vocational training and
retraining, housing, sanitation, health and social security.
2. States shall take effective measures and, where appropriate, special measures to ensure continuing
improvement of their economic and social conditions. Particular attention shall be paid to the rights and
special needs of indigenous elders, women, youth, children and persons with disabilities.
Article 26
1. Indigenous peoples have the right to the lands, territories and resources which they have
traditionally owned, occupied or otherwise used or acquired.
2. Indigenous peoples have the right to own, use, develop and control the lands, territories and resources
that they possess by reason of traditional ownership or other traditional occupation or use, as well as
those which they have otherwise acquired.
3. States shall give legal recognition and protection to these lands, territories and resources. Such
recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the
indigenous peoples concerned.
Article 30
1. Military activities shall not take place in the lands or territories of indigenous peoples, unless justified by
a relevant public interest or otherwise freely agreed with or requested by the indigenous peoples
concerned.
2. States shall undertake effective consultations with the indigenous peoples concerned, through
appropriate procedures and in particular through their representative institutions, prior to using their lands
or territories for military activities.
Article 32
1. Indigenous peoples have the right to determine and develop priorities and strategies for the
development or use of their lands or territories and other resources.
2. States shall consult and cooperate in good faith with the indigenous peoples concerned through their
own representative institutions in order to obtain their free and informed consent prior to the approval of
any project affecting their lands or territories and other resources, particularly in connection with the
development, utilization or exploitation of mineral, water or other resources.
3. States shall provide effective mechanisms for just and fair redress for any such activities, and
appropriate measures shall be taken to mitigate adverse environmental, economic, social, cultural or
spiritual impact.
Article 37
1. Indigenous peoples have the right to the recognition, observance and enforcement of treaties,
agreements and other constructive arrangements concluded with States or their successors and to have
States honour and respect such treaties, agreements and other constructive arrangements.
2. Nothing in this Declaration may be interpreted as diminishing or eliminating the rights of indigenous
peoples contained in treaties, agreements and other constructive arrangements.
Article 38
States in consultation and cooperation with indigenous peoples, shall take the appropriate measures,
including legislative measures, to achieve the ends of this Declaration.
Assuming that the UN DRIP, like the Universal Declaration on Human Rights, must now be regarded as
embodying customary international law - a question which the Court need not definitively resolve here -
the obligations enumerated therein do not strictly require the Republic to grant the Bangsamoro people,
through the instrumentality of the BJE, the particular rights and powers provided for in the MOA-AD. Even
the more specific provisions of the UN DRIP are general in scope, allowing for flexibility in its application
by the different States.
There is, for instance, no requirement in the UN DRIP that States now guarantee indigenous peoples
their own police and internal security force. Indeed, Article 8 presupposes that it is the State which will
provide protection for indigenous peoples against acts like the forced dispossession of their lands - a
function that is normally performed by police officers. If the protection of a right so essential to indigenous
people's identity is acknowledged to be the responsibility of the State, then surely the protection of rights
less significant to them as such peoples would also be the duty of States. Nor is there in the UN DRIP an
acknowledgement of the right of indigenous peoples to the aerial domain and atmospheric space. What it
upholds, in Article 26 thereof, is the right of indigenous peoples to the lands, territories and resources
which they have traditionally owned, occupied or otherwise used or acquired.
Moreover, the UN DRIP, while upholding the right of indigenous peoples to autonomy, does not obligate
States to grant indigenous peoples the near-independent status of an associated state. All the rights
recognized in that document are qualified in Article 46 as follows:
1. Nothing in this Declaration may be interpreted as implying for any State, people, group or person
any right to engage in any activity or to perform any act contrary to the Charter of the United Nations or
construed as authorizing or encouraging any action which would dismember or impair, totally or
in part, the territorial integrity or political unity of sovereign and independent States.
Even if the UN DRIP were considered as part of the law of the land pursuant to Article II, Section 2 of the
Constitution, it would not suffice to uphold the validity of the MOA-AD so as to render its compliance with
other laws unnecessary.
It is, therefore, clear that the MOA-AD contains numerous provisions that cannot be reconciled with
the Constitution and the laws as presently worded. Respondents proffer, however, that the signing of
the MOA-AD alone would not have entailed any violation of law or grave abuse of discretion on their part,
precisely because it stipulates that the provisions thereof inconsistent with the laws shall not take effect
until these laws are amended. They cite paragraph 7 of the MOA-AD strand on GOVERNANCE quoted
earlier, but which is reproduced below for convenience:
7. The Parties agree that the mechanisms and modalities for the actual implementation of this MOA-AD
shall be spelt out in the Comprehensive Compact to mutually take such steps to enable it to occur
effectively.
Any provisions of the MOA-AD requiring amendments to the existing legal framework shall come into force
upon signing of a Comprehensive Compact and upon effecting the necessary changes to the legal
framework with due regard to non derogation of prior agreements and within the stipulated timeframe to be
contained in the Comprehensive Compact.
Indeed, the foregoing stipulation keeps many controversial provisions of the MOA-AD from coming into
force until the necessary changes to the legal framework are effected. While the word "Constitution" is
not mentioned in the provision now under consideration or anywhere else in the MOA-AD, the term
"legal framework" is certainly broad enough to include the Constitution.
Notwithstanding the suspensive clause, however, respondents, by their mere act of incorporating in the
MOA-AD the provisions thereof regarding the associative relationship between the BJE and the Central
Government, have already violated the Memorandum of Instructions From The President dated March 1,
2001, which states that the "negotiations shall be conducted in accordance with x x x the principles of the
sovereignty and territorial integrity of the Republic of the Philippines." (Emphasis supplied) Establishing
an associative relationship between the BJE and the Central Government is, for the reasons already
discussed, a preparation for independence, or worse, an implicit acknowledgment of an independent status
already prevailing.
Even apart from the above-mentioned Memorandum, however, the MOA-AD is defective because the
suspensive clause is invalid, as discussed below.
The authority of the GRP Peace Negotiating Panel to negotiate with the MILF is founded on E.O. No. 3,
Section 5(c), which states that there shall be established Government Peace Negotiating Panels for
negotiations with different rebel groups to be "appointed by the President as her official emissaries to
conduct negotiations, dialogues, and face-to-face discussions with rebel groups." These negotiating panels
are to report to the President, through the PAPP on the conduct and progress of the negotiations.
It bears noting that the GRP Peace Panel, in exploring lasting solutions to the Moro Problem through its
negotiations with the MILF, was not restricted by E.O. No. 3 only to those options available under the laws
as they presently stand. One of the components of a comprehensive peace process, which E.O. No. 3
collectively refers to as the "Paths to Peace," is the pursuit of social, economic, and political reforms which
may require new legislation or even constitutional amendments. Sec. 4(a) of E.O. No. 3, which reiterates
Section 3(a), of E.O. No. 125,167 states:
SECTION 4. The Six Paths to Peace. - The components of the comprehensive peace process comprise
the processes known as the "Paths to Peace". These component processes are interrelated and not
mutually exclusive, and must therefore be pursued simultaneously in a coordinated and integrated fashion.
They shall include, but may not be limited to, the following:
a. PURSUIT OF SOCIAL, ECONOMIC AND POLITICAL REFORMS. This component involves the
vigorous implementation of various policies, reforms, programs and projects aimed at addressing
the root causes of internal armed conflicts and social unrest. This may require administrative
action, new legislation or even constitutional amendments.
x x x x (Emphasis supplied)
The MOA-AD, therefore, may reasonably be perceived as an attempt of respondents to address, pursuant
to this provision of E.O. No. 3, the root causes of the armed conflict in Mindanao. The E.O. authorized them
to "think outside the box," so to speak. Hence, they negotiated and were set on signing the MOA-AD that
included various social, economic, and political reforms which cannot, however, all be accommodated
within the present legal framework, and which thus would require new legislation and constitutional
amendments.
The inquiry on the legality of the "suspensive clause," however, cannot stop here, because it must be asked
whether the President herself may exercise the power delegated to the GRP Peace Panel under E.O.
No. 3, Sec. 4(a).
The President cannot delegate a power that she herself does not possess. May the President, in the course
of peace negotiations, agree to pursue reforms that would require new legislation and constitutional
amendments, or should the reforms be restricted only to those solutions which the present laws allow? The
answer to this question requires a discussion of the extent of the President's power to conduct peace
negotiations.
That the authority of the President to conduct peace negotiations with rebel groups is not explicitly
mentioned in the Constitution does not mean that she has no such authority. In Sanlakas v. Executive
Secretary,168 in issue was the authority of the President to declare a state of rebellion - an authority which
is not expressly provided for in the Constitution. The Court held thus:
"In her ponencia in Marcos v. Manglapus, Justice Cortes put her thesis into jurisprudence. There, the Court,
by a slim 8-7 margin, upheld the President's power to forbid the return of her exiled predecessor. The
rationale for the majority's ruling rested on the President's
. . . unstated residual powers which are implied from the grant of executive power and which are
necessary for her to comply with her duties under the Constitution. The powers of the President are
not limited to what are expressly enumerated in the article on the Executive Department and in
scattered provisions of the Constitution. This is so, notwithstanding the avowed intent of the members
of the Constitutional Commission of 1986 to limit the powers of the President as a reaction to the abuses
under the regime of Mr. Marcos, for the result was a limitation of specific powers of the President,
particularly those relating to the commander-in-chief clause, but not a diminution of the general grant of
executive power.
Thus, the President's authority to declare a state of rebellion springs in the main from her powers
as chief executive and, at the same time, draws strength from her Commander-in-Chief powers. x x
x (Emphasis and underscoring supplied)
Similarly, the President's power to conduct peace negotiations is implicitly included in her powers as Chief
Executive and Commander-in-Chief. As Chief Executive, the President has the general responsibility to
promote public peace, and as Commander-in-Chief, she has the more specific duty to prevent and suppress
rebellion and lawless violence.169
As the experience of nations which have similarly gone through internal armed conflict will show, however,
peace is rarely attained by simply pursuing a military solution. Oftentimes, changes as far-reaching as a
fundamental reconfiguration of the nation's constitutional structure is required. The observations of Dr. Kirsti
Samuels are enlightening, to wit:
x x x [T]he fact remains that a successful political and governance transition must form the core of any post-
conflict peace-building mission. As we have observed in Liberia and Haiti over the last ten years, conflict
cessation without modification of the political environment, even where state-building is undertaken through
technical electoral assistance and institution- or capacity-building, is unlikely to succeed. On average, more
than 50 percent of states emerging from conflict return to conflict. Moreover, a substantial proportion of
transitions have resulted in weak or limited democracies.
The design of a constitution and its constitution-making process can play an important role in the political
and governance transition. Constitution-making after conflict is an opportunity to create a common vision
of the future of a state and a road map on how to get there. The constitution can be partly a peace
agreement and partly a framework setting up the rules by which the new democracy will operate.170
In the same vein, Professor Christine Bell, in her article on the nature and legal status of peace agreements,
observed that the typical way that peace agreements establish or confirm mechanisms for demilitarization
and demobilization is by linking them to new constitutional structures addressing governance, elections,
and legal and human rights institutions.171
In the Philippine experience, the link between peace agreements and constitution-making has been
recognized by no less than the framers of the Constitution. Behind the provisions of the Constitution on
autonomous regions172 is the framers' intention to implement a particular peace agreement, namely, the
Tripoli Agreement of 1976 between the GRP and the MNLF, signed by then Undersecretary of National
Defense Carmelo Z. Barbero and then MNLF Chairman Nur Misuari.
MR. ROMULO. There are other speakers; so, although I have some more questions, I will reserve my right
to ask them if they are not covered by the other speakers. I have only two questions.
I heard one of the Commissioners say that local autonomy already exists in the Muslim region; it is
working very well; it has, in fact, diminished a great deal of the problems. So, my question is: since that
already exists, why do we have to go into something new?
MR. OPLE. May I answer that on behalf of Chairman Nolledo. Commissioner Yusup Abubakar is right that
certain definite steps have been taken to implement the provisions of the Tripoli Agreement with
respect to an autonomous region in Mindanao. This is a good first step, but there is no question
that this is merely a partial response to the Tripoli Agreement itself and to the fuller standard of
regional autonomy contemplated in that agreement, and now by state policy.173(Emphasis supplied)
The constitutional provisions on autonomy and the statutes enacted pursuant to them have, to the credit of
their drafters, been partly successful. Nonetheless, the Filipino people are still faced with the reality of an
on-going conflict between the Government and the MILF. If the President is to be expected to find means
for bringing this conflict to an end and to achieve lasting peace in Mindanao, then she must be given the
leeway to explore, in the course of peace negotiations, solutions that may require changes to the
Constitution for their implementation. Being uniquely vested with the power to conduct peace negotiations
with rebel groups, the President is in a singular position to know the precise nature of their grievances
which, if resolved, may bring an end to hostilities.
The President may not, of course, unilaterally implement the solutions that she considers viable, but she
may not be prevented from submitting them as recommendations to Congress, which could then, if it is
minded, act upon them pursuant to the legal procedures for constitutional amendment and revision. In
particular, Congress would have the option, pursuant to Article XVII, Sections 1 and 3 of the Constitution,
to propose the recommended amendments or revision to the people, call a constitutional convention, or
submit to the electorate the question of calling such a convention.
While the President does not possess constituent powers - as those powers may be exercised only by
Congress, a Constitutional Convention, or the people through initiative and referendum - she may submit
proposals for constitutional change to Congress in a manner that does not involve the arrogation of
constituent powers.
In Sanidad v. COMELEC,174 in issue was the legality of then President Marcos' act of directly submitting
proposals for constitutional amendments to a referendum, bypassing the interim National Assembly which
was the body vested by the 1973 Constitution with the power to propose such amendments. President
Marcos, it will be recalled, never convened the interim National Assembly. The majority upheld the
President's act, holding that "the urges of absolute necessity" compelled the President as the agent of the
people to act as he did, there being no interim National Assembly to propose constitutional amendments.
Against this ruling, Justices Teehankee and 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,175 in particular, bears noting. While he disagreed that the President may
directly submit proposed constitutional amendments to a referendum, implicit in his opinion is a recognition
that he would have upheld the President's action along with the majority had the President convened the
interim National Assembly and coursed his proposals through it. Thus Justice Teehankee opined:
"Since the Constitution provides for the organization of the essential departments of government, defines
and delimits the powers of each and prescribes the manner of the exercise of such powers, and the
constituent power has not been granted to but has been withheld from the President or Prime Minister, it
follows that the President's questioned decrees proposing and submitting constitutional amendments
directly to the people (without the intervention of the interim National Assembly in whom the power
is expressly vested) are devoid of constitutional and legal basis."176 (Emphasis supplied)
From the foregoing discussion, the principle may be inferred that the President - in the course of conducting
peace negotiations - may validly consider implementing even those policies that require changes to the
Constitution, but she may not unilaterally implement them without the intervention of Congress, or act
in any way as if the assent of that body were assumed as a certainty.
Since, under the present Constitution, the people also have the power to directly propose amendments
through initiative and referendum, the President may also submit her recommendations to the people, not
as a formal proposal to be voted on in a plebiscite similar to what President Marcos did in Sanidad, but for
their independent consideration of whether these recommendations merit being formally proposed through
initiative.
These recommendations, however, may amount to nothing more than the President's suggestions to the
people, for any further involvement in the process of initiative by the Chief Executive may vitiate its character
as a genuine "people's initiative." The only initiative recognized by the Constitution is that which truly
proceeds from the people. As the Court stated in Lambino v. COMELEC:177
"The Lambino Group claims that their initiative is the ‘people's voice.' However, the Lambino Group
unabashedly states in ULAP Resolution No. 2006-02, in the verification of their petition with the COMELEC,
that ‘ULAP maintains its unqualified support to the agenda of Her Excellency President Gloria Macapagal-
Arroyo for constitutional reforms.' The Lambino Group thus admits that their ‘people's' initiative is an
‘unqualified support to the agenda' of the incumbent President to change the Constitution. This forewarns
the Court to be wary of incantations of ‘people's voice' or ‘sovereign will' in the present initiative."
It will be observed that the President has authority, as stated in her oath of office,178 only to preserve and
defend the Constitution. Such presidential power does not, however, extend to allowing her to change the
Constitution, but simply to recommend proposed amendments or revision. As long as she limits herself to
recommending these changes and submits to the proper procedure for constitutional amendments and
revision, her mere recommendation need not be construed as an unconstitutional act.
The foregoing discussion focused on the President's authority to propose constitutional amendments,
since her authority to propose new legislation is not in controversy. It has been an accepted practice for
Presidents in this jurisdiction to propose new legislation. One of the more prominent instances the practice
is usually done is in the yearly State of the Nation Address of the President to Congress. Moreover, the
annual general appropriations bill has always been based on the budget prepared by the President, which
- for all intents and purposes - is a proposal for new legislation coming from the President.179
The "suspensive clause" in the MOA-AD viewed in light of the above-discussed standards
Given the limited nature of the President's authority to propose constitutional amendments, she cannot
guarantee to any third party that the required amendments will eventually be put in place, nor even be
submitted to a plebiscite. The most she could do is submit these proposals as recommendations either to
Congress or the people, in whom constituent powers are vested.
Paragraph 7 on Governance of the MOA-AD states, however, that all provisions thereof which cannot be
reconciled with the present Constitution and laws "shall come into force upon signing of a Comprehensive
Compact and upon effecting the necessary changes to the legal framework." This stipulation does not
bear the marks of a suspensive condition - defined in civil law as a future and uncertain event - but of a
term. It is not a question of whether the necessary changes to the legal framework will be effected, but
when. That there is no uncertainty being contemplated is plain from what follows, for the paragraph goes
on to state that the contemplated changes shall be "with due regard to non derogation of prior
agreements and within the stipulated timeframe to be contained in the Comprehensive Compact."
Pursuant to this stipulation, therefore, it is mandatory for the GRP to effect the changes to the legal
framework contemplated in the MOA-AD - which changes would include constitutional amendments, as
discussed earlier. It bears noting that,
By the time these changes are put in place, the MOA-AD itself would be counted among the "prior
agreements" from which there could be no derogation.
What remains for discussion in the Comprehensive Compact would merely be the implementing details
for these "consensus points" and, notably, the deadline for effecting the contemplated changes to the
legal framework.
Plainly, stipulation-paragraph 7 on GOVERNANCE is inconsistent with the limits of the President's
authority to propose constitutional amendments, it being a virtual guarantee that the Constitution and
the laws of the Republic of the Philippines will certainly be adjusted to conform to all the "consensus
points" found in the MOA-AD. Hence, it must be struck down as unconstitutional.
A comparison between the "suspensive clause" of the MOA-AD with a similar provision appearing in the
1996 final peace agreement between the MNLF and the GRP is most instructive.
As a backdrop, the parties to the 1996 Agreement stipulated that it would be implemented in two phases.
Phase I covered a three-year transitional period involving the putting up of new administrative structures
through Executive Order, such as the Special Zone of Peace and Development (SZOPAD) and the
Southern Philippines Council for Peace and Development (SPCPD), while Phase II covered the
establishment of the new regional autonomous government through amendment or repeal of R.A. No.
6734, which was then the Organic Act of the ARMM.
The stipulations on Phase II consisted of specific agreements on the structure of the expanded
autonomous region envisioned by the parties. To that extent, they are similar to the provisions of the
MOA-AD. There is, however, a crucial difference between the two agreements. While the MOA-AD
virtually guarantees that the "necessary changes to the legal framework" will be put in place, the
GRP-MNLF final peace agreement states thus: "Accordingly, these provisions [on Phase II] shall be
recommended by the GRP to Congress for incorporation in the amendatory or repealing law."
Concerns have been raised that the MOA-AD would have given rise to a binding international law
obligation on the part of the Philippines to change its Constitution in conformity thereto, on the ground that
it may be considered either as a binding agreement under international law, or a unilateral declaration of
the Philippine government to the international community that it would grant to the Bangsamoro people all
the concessions therein stated. Neither ground finds sufficient support in international law, however.
The MOA-AD, as earlier mentioned in the overview thereof, would have included foreign dignitaries as
signatories. In addition, representatives of other nations were invited to witness its signing in Kuala
Lumpur. These circumstances readily lead one to surmise that the MOA-AD would have had the status of
a binding international agreement had it been signed. An examination of the prevailing principles in
international law, however, leads to the contrary conclusion.
The Decision on Challenge to Jurisdiction: 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.
xxxx
40. Almost every conflict resolution will involve the parties to the conflict and the mediator or facilitator of
the settlement, or persons or bodies under whose auspices the settlement took place but who are not at
all parties to the conflict, are not contracting parties and who do not claim any obligation from the
contracting parties or incur any obligation from the settlement.
41. In this case, the parties to the conflict are the lawful authority of the State and the RUF which
has no status of statehood and is to all intents and purposes a faction within the state. The non-
contracting signatories of the 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,183 also known as the Case Concerning the Frontier Dispute. The
public declaration subject of that case was a statement made by the President of Mali, in an interview by
a foreign press agency, that Mali would abide by the decision to be issued by a commission of the
Organization of African Unity on a frontier dispute then pending between Mali and Burkina Faso.
Unlike in the Nuclear Tests Case, the ICJ held that the statement of Mali's President was not a unilateral
act with legal implications. It clarified that its ruling in the Nuclear Tests case rested on the peculiar
circumstances surrounding the French declaration subject thereof, to wit:
40. In order to assess the intentions of the author of a unilateral act, account must be taken of all the
factual circumstances in which the act occurred. For example, in the Nuclear Tests cases, the Court
took the view that since the applicant States were not the only ones concerned at the possible
continuance of atmospheric testing by the French Government, that Government's unilateral
declarations had ‘conveyed to the world at large, including the Applicant, its intention effectively
to terminate these tests‘ (I.C.J. Reports 1974, p. 269, para. 51; p. 474, para. 53). In the particular
circumstances of those cases, the French Government could not express an intention to be
bound otherwise than by unilateral declarations. It is difficult to see how it could have accepted
the terms of a negotiated solution with each of the applicants without thereby jeopardizing its
contention that its conduct was lawful. The circumstances of the present case are radically
different. Here, there was nothing to hinder the Parties from manifesting an intention to accept the
binding character of the conclusions of the Organization of African Unity Mediation Commission
by the normal method: a formal agreement on the basis of reciprocity. Since no agreement of this
kind was concluded between the Parties, the Chamber finds that there are no grounds to interpret the
declaration made by Mali's head of State on 11 April 1975 as a unilateral act with legal implications in
regard to the present case. (Emphasis and underscoring supplied)
Assessing the MOA-AD in light of the above criteria, it would not have amounted to a unilateral declaration
on the part of the Philippine State to the international community. The Philippine panel did not draft the
same with the clear intention of being bound thereby to the international community as a whole or to any
State, but only to the MILF. While there were States and international organizations involved, one way or
another, in the negotiation and projected signing of the MOA-AD, they participated merely as witnesses or,
in the case of Malaysia, as facilitator. As held in the 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.

G.R No. 187167 August 16, 2011

PROF. MERLIN M. MAGALLONA, AKBAYAN PARTY-LIST REP. RISA HONTIVEROS, PROF. HARRY
C. ROQUE, JR., AND UNIVERSITY OF THE PHILIPPINES COLLEGE OF LAW STUDENTS, ALITHEA
BARBARA ACAS, VOLTAIRE ALFERES, CZARINA MAY ALTEZ, FRANCIS ALVIN ASILO, SHERYL
BALOT, RUBY AMOR BARRACA, JOSE JAVIER BAUTISTA, ROMINA BERNARDO, VALERIE
PAGASA BUENAVENTURA, EDAN MARRI CAÑETE, VANN ALLEN DELA CRUZ, RENE DELORINO,
PAULYN MAY DUMAN, SHARON ESCOTO, RODRIGO FAJARDO III, GIRLIE FERRER, RAOULLE
OSEN FERRER, CARLA REGINA GREPO, ANNA MARIE CECILIA GO, IRISH KAY KALAW, MARY
ANN JOY LEE, MARIA LUISA MANALAYSAY, MIGUEL RAFAEL MUSNGI, MICHAEL OCAMPO,
JAKLYN HANNA PINEDA, WILLIAM RAGAMAT, MARICAR RAMOS, ENRIK FORT REVILLAS, JAMES
MARK TERRY RIDON, JOHANN FRANTZ RIVERA IV, CHRISTIAN RIVERO, DIANNE MARIE ROA,
NICHOLAS SANTIZO, MELISSA CHRISTINA SANTOS, CRISTINE MAE TABING, VANESSA ANNE
TORNO, MARIA ESTER VANGUARDIA, and MARCELINO VELOSO III, Petitioners,
vs.
HON. EDUARDO ERMITA, IN HIS CAPACITY AS EXECUTIVE SECRETARY, HON. ALBERTO
ROMULO, IN HIS CAPACITY AS SECRETARY OF THE DEPARTMENT OF FOREIGN AFFAIRS, HON.
ROLANDO ANDAYA, IN HIS CAPACITY AS SECRETARY OF THE DEPARTMENT OF BUDGET AND
MANAGEMENT, HON. DIONY VENTURA, IN HIS CAPACITY AS ADMINISTRATOR OF THE NATIONAL
MAPPING & RESOURCE INFORMATION AUTHORITY, and HON. HILARIO DAVIDE, JR., IN HIS
CAPACITY AS REPRESENTATIVE OF THE PERMANENT MISSION OF THE REPUBLIC OF THE
PHILIPPINES TO THE UNITED NATIONS, Respondents.
DECISION
CARPIO, J.:
The Case
This original action for the writs of certiorari and prohibition assails the constitutionality of Republic Act
No. 95221 (RA 9522) adjusting the country’s archipelagic baselines and classifying the baseline regime of
nearby territories.
The Antecedents
In 1961, Congress passed Republic Act No. 3046 (RA 3046)2 demarcating the maritime baselines of the
Philippines as an archipelagic State.3 This law followed the framing of the Convention on the Territorial
Sea and the Contiguous Zone in 1958 (UNCLOS I),4 codifying, among others, the sovereign right of
States parties over their "territorial sea," the breadth of which, however, was left undetermined. Attempts
to fill this void during the second round of negotiations in Geneva in 1960 (UNCLOS II) proved futile.
Thus, domestically, RA 3046 remained unchanged for nearly five decades, save for legislation passed in
1968 (Republic Act No. 5446 [RA 5446]) correcting typographical errors and reserving the drawing of
baselines around Sabah in North Borneo.
In March 2009, Congress amended RA 3046 by enacting RA 9522, the statute now under scrutiny. The
change was prompted by the need to make RA 3046 compliant with the terms of the United Nations
Convention on the Law of the Sea (UNCLOS III),5 which the Philippines ratified on 27 February 1984.6
Among others, UNCLOS III prescribes the water-land ratio, length, and contour of baselines of
archipelagic States like the Philippines7 and sets the deadline for the filing of application for the extended
continental shelf.8 Complying with these requirements, RA 9522 shortened one baseline, optimized the
location of some basepoints around the Philippine archipelago and classified adjacent territories, namely,
the Kalayaan Island Group (KIG) and the Scarborough Shoal, as "regimes of islands" whose islands
generate their own applicable maritime zones.
Petitioners, professors of law, law students and a legislator, in their respective capacities as "citizens,
taxpayers or x x x legislators,"9 as the case may be, assail the constitutionality of RA 9522 on two
principal grounds, namely: (1) RA 9522 reduces Philippine maritime territory, and logically, the reach of
the Philippine state’s sovereign power, in violation of Article 1 of the 1987 Constitution,10 embodying the
terms of the Treaty of Paris11 and ancillary treaties,12 and (2) RA 9522 opens the 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.13
In addition, petitioners contend that RA 9522’s treatment of the KIG as "regime of islands" not only results
in the loss of a large maritime area but also prejudices the livelihood of subsistence fishermen.14 To
buttress their argument of territorial diminution, petitioners facially attack RA 9522 for what it excluded
and included – its failure to reference either the Treaty of Paris or Sabah and its use of UNCLOS III’s
framework of regime of islands to determine the maritime zones of the KIG and the Scarborough Shoal.
Commenting on the petition, respondent officials raised threshold issues questioning (1) the petition’s
compliance with the case or controversy requirement for judicial review grounded on petitioners’ alleged
lack of locus standi and (2) the propriety of the writs of certiorari and prohibition to assail the
constitutionality of RA 9522. On the merits, respondents defended RA 9522 as the country’s compliance
with the terms of UNCLOS III, preserving Philippine territory over the KIG or Scarborough Shoal.
Respondents add that RA 9522 does not undermine the country’s security, environment and economic
interests or relinquish the Philippines’ claim over Sabah.
Respondents also question the normative force, under international law, of petitioners’ assertion that what
Spain ceded to the United States under the Treaty of Paris were the islands and all the waters found
within the boundaries of the rectangular area drawn under the Treaty of Paris.
We left unacted petitioners’ prayer for an injunctive writ.
The Issues
The petition raises the following issues:
1. Preliminarily –
1. Whether petitioners possess locus standi to bring this suit; and
2. Whether the writs of certiorari and prohibition are the proper remedies to assail the constitutionality of
RA 9522.
2. On the merits, whether RA 9522 is unconstitutional.
The Ruling of the Court
On the threshold issues, we hold that (1) petitioners possess locus standi to bring this suit as citizens and
(2) the writs of certiorari and prohibition are proper remedies to test the constitutionality of RA 9522. On
the merits, we find no basis to declare RA 9522 unconstitutional.
On the Threshold Issues
Petitioners Possess Locus
Standi as Citizens
Petitioners themselves undermine their assertion of locus standi as legislators and taxpayers because the
petition alleges neither infringement of legislative prerogative15 nor misuse of public funds,16 occasioned
by the passage and implementation of RA 9522. Nonetheless, we recognize petitioners’ locus standi as
citizens with constitutionally sufficient interest in the resolution of the merits of the case which
undoubtedly raises issues of national significance necessitating urgent resolution. Indeed, owing to the
peculiar nature of RA 9522, it is understandably difficult to find other litigants possessing "a more direct
and specific interest" to bring the suit, thus satisfying one of the requirements for granting citizenship
standing.17
The Writs of Certiorari and Prohibition
Are Proper Remedies to Test
the Constitutionality of Statutes
In praying for the dismissal of the petition on preliminary grounds, respondents seek a strict observance
of the offices of the writs of certiorari and prohibition, noting that the writs cannot issue absent any
showing of grave abuse of discretion in the exercise of judicial, quasi-judicial or ministerial powers on the
part of respondents and resulting prejudice on the part of petitioners.18
Respondents’ submission holds true in ordinary civil proceedings. When this Court exercises its
constitutional power of judicial review, however, we have, by tradition, viewed the writs of certiorari and
prohibition as proper remedial vehicles to test the constitutionality of statutes,19 and indeed, of acts of
other branches of government.20 Issues of constitutional import are sometimes crafted out of statutes
which, while having no bearing on the personal interests of the petitioners, carry such relevance in the life
of this nation that the Court inevitably finds itself constrained to take cognizance of the case and pass
upon the issues raised, non-compliance with the letter of procedural rules notwithstanding. The statute
sought to be reviewed here is one such law.
RA 9522 is Not Unconstitutional
RA 9522 is a Statutory Tool
to Demarcate the Country’s
Maritime Zones and Continental
Shelf Under UNCLOS III, not to
Delineate Philippine Territory
Petitioners submit that RA 9522 "dismembers a large portion of the national territory"21 because it
discards the pre-UNCLOS III demarcation of Philippine territory under the Treaty of Paris and related
treaties, successively encoded in the definition of national territory under the 1935, 1973 and 1987
Constitutions. Petitioners theorize that this constitutional definition trumps any treaty or statutory provision
denying the Philippines sovereign control over waters, beyond the territorial sea recognized at the time of
the Treaty of Paris, that Spain supposedly ceded to the United States. Petitioners argue that from the
Treaty of Paris’ technical description, Philippine sovereignty over territorial waters extends hundreds of
nautical miles around the Philippine archipelago, embracing the rectangular area delineated in the Treaty
of Paris.22
Petitioners’ theory fails to persuade us.
UNCLOS III has nothing to do with the acquisition (or loss) of territory. It is a multilateral treaty regulating,
among others, sea-use rights over maritime zones (i.e., the territorial waters [12 nautical miles from the
baselines], contiguous zone [24 nautical miles from the baselines], exclusive economic zone [200 nautical
miles from the baselines]), and continental shelves that UNCLOS III delimits.23 UNCLOS III was the
culmination of decades-long negotiations among United Nations members to codify norms regulating the
conduct of States in the world’s oceans and submarine areas, recognizing coastal and archipelagic
States’ graduated authority over a limited span of waters and submarine lands along their coasts.
On the other hand, baselines laws such as RA 9522 are enacted by UNCLOS III States parties to mark-
out specific basepoints along their coasts from which baselines are drawn, either straight or contoured, to
serve as geographic starting points to measure the breadth of the maritime zones and continental shelf.
Article 48 of UNCLOS III on archipelagic States like ours could not be any clearer:
Article 48. Measurement of the breadth of the territorial sea, the contiguous zone, the exclusive economic
zone and the continental shelf. – The breadth of the territorial sea, the contiguous zone, the exclusive
economic zone and the continental shelf shall be measured from archipelagic baselines drawn in
accordance with article 47. (Emphasis supplied)
Thus, baselines laws are nothing but statutory mechanisms for UNCLOS III States parties to delimit with
precision the extent of their maritime zones and continental shelves. In turn, this gives notice to the rest of
the international community of the scope of the maritime space and submarine areas within which States
parties exercise treaty-based rights, namely, the exercise of sovereignty over territorial waters (Article 2),
the jurisdiction to enforce customs, fiscal, immigration, and sanitation laws in the contiguous zone (Article
33), and the right to exploit the living and non-living resources in the exclusive economic zone (Article 56)
and continental shelf (Article 77).
Even under petitioners’ theory that the Philippine territory embraces the islands and all the waters within
the rectangular area delimited in the Treaty of Paris, the baselines of the Philippines would still have to be
drawn in accordance with RA 9522 because this is the only way to draw the baselines in conformity with
UNCLOS III. The baselines cannot be drawn from the boundaries or other portions of the rectangular
area delineated in the Treaty of Paris, but from the "outermost islands and drying reefs of the
archipelago."24
UNCLOS III and its ancillary baselines laws play no role in the acquisition, enlargement or, as petitioners
claim, diminution of territory. Under traditional international law typology, States acquire (or conversely,
lose) territory through occupation, accretion, cession and prescription,25 not by executing multilateral
treaties on the regulations of sea-use rights or enacting statutes to comply with the treaty’s terms to
delimit maritime zones and continental shelves. Territorial claims to land features are outside UNCLOS III,
and are instead governed by the rules on general international law.26
RA 9522’s Use of the Framework
of Regime of Islands to Determine the
Maritime Zones of the KIG and the
Scarborough Shoal, not Inconsistent
with the Philippines’ Claim of Sovereignty
Over these Areas
Petitioners next submit that RA 9522’s use of UNCLOS III’s regime of islands framework to draw the
baselines, and to measure the breadth of the applicable maritime zones of the KIG, "weakens our
territorial claim" over that area.27 Petitioners add that the KIG’s (and Scarborough Shoal’s) exclusion
from the Philippine archipelagic baselines results in the loss of "about 15,000 square nautical miles of
territorial waters," prejudicing the livelihood of subsistence fishermen.28 A comparison of the
configuration of the baselines drawn under RA 3046 and RA 9522 and the extent of maritime space
encompassed by each law, coupled with a reading of the text of RA 9522 and its congressional
deliberations, vis-à-vis the Philippines’ obligations under UNCLOS III, belie this view.1avvphi1
The configuration of the baselines drawn under RA 3046 and RA 9522 shows that RA 9522 merely
followed the basepoints mapped by RA 3046, save for at least nine basepoints that RA 9522 skipped to
optimize the location of basepoints and adjust the length of one baseline (and thus comply with UNCLOS
III’s limitation on the maximum length of baselines). Under RA 3046, as under RA 9522, the KIG and the
Scarborough Shoal lie outside of the baselines drawn around the Philippine archipelago. This undeniable
cartographic fact takes the wind out of petitioners’ argument branding RA 9522 as a statutory
renunciation of the Philippines’ claim over the KIG, assuming that baselines are relevant for this purpose.
Petitioners’ assertion of loss of "about 15,000 square nautical miles of territorial waters" under RA 9522 is
similarly unfounded both in fact and law. On the contrary, RA 9522, by optimizing the location of
basepoints, increased the Philippines’ total maritime space (covering its internal waters, territorial sea
and exclusive economic zone) by 145,216 square nautical miles, as shown in the table below:29
Thus, as the map below shows, the reach of the exclusive economic zone drawn under RA 9522 even
extends way beyond the waters covered by the rectangular demarcation under the Treaty of Paris. Of
course, where there are overlapping exclusive economic zones of opposite or adjacent States, there will
have to be a delineation of maritime boundaries in accordance with UNCLOS III.30
Further, petitioners’ argument that the KIG now lies outside Philippine territory because the baselines that
RA 9522 draws do not enclose the KIG is negated by RA 9522 itself. Section 2 of the law commits to text
the Philippines’ continued claim of sovereignty and jurisdiction over the KIG and the Scarborough Shoal:
SEC. 2. The baselines in the following areas over which the Philippines likewise exercises
sovereignty and jurisdiction shall be determined as "Regime of Islands" under the Republic of the
Philippines consistent with Article 121 of the United Nations Convention on the Law of the Sea
(UNCLOS):
a) The Kalayaan Island Group as constituted under Presidential Decree No. 1596 and
b) Bajo de Masinloc, also known as Scarborough Shoal. (Emphasis supplied)
Had Congress in RA 9522 enclosed the KIG and the Scarborough Shoal as part of the Philippine
archipelago, adverse legal effects would have ensued. The Philippines would have committed a breach of
two provisions of UNCLOS III. First, Article 47 (3) of UNCLOS III requires that "[t]he drawing of such
baselines shall not depart to any appreciable extent from the general configuration of the archipelago."
Second, Article 47 (2) of UNCLOS III requires that "the length of the baselines shall not exceed 100
nautical miles," save for three per cent (3%) of the total number of baselines which can reach up to 125
nautical miles.31
Although the Philippines has consistently claimed sovereignty over the KIG32 and the Scarborough Shoal
for several decades, these outlying areas are located at an appreciable distance from the nearest
shoreline of the Philippine archipelago,33 such that any straight baseline loped around them from the
nearest basepoint will inevitably "depart to an appreciable extent from the general configuration of the
archipelago."
The principal sponsor of RA 9522 in the Senate, Senator Miriam Defensor-Santiago, took pains to
emphasize the foregoing during the Senate deliberations:
What we call the Kalayaan Island Group or what the rest of the world call[] the Spratlys and the
Scarborough Shoal are outside our archipelagic baseline because if we put them inside our baselines we
might be accused of violating the provision of international law which states: "The drawing of such
baseline shall not depart to any appreciable extent from the general configuration of the archipelago." So
sa loob ng ating baseline, dapat magkalapit ang mga islands. Dahil malayo ang Scarborough Shoal, hindi
natin masasabing malapit sila sa atin although we are still allowed by international law to claim them as
our own.
This is called contested islands outside our configuration. We see that our archipelago is defined by the
orange line which [we] call[] archipelagic baseline. Ngayon, tingnan ninyo ang maliit na circle doon sa
itaas, that is Scarborough Shoal, itong malaking circle sa ibaba, that is Kalayaan Group or the Spratlys.
Malayo na sila sa ating archipelago kaya kung ilihis pa natin ang dating archipelagic baselines para
lamang masama itong dalawang circles, hindi na sila magkalapit at baka hindi na tatanggapin ng United
Nations because of the rule that it should follow the natural configuration of the archipelago.34 (Emphasis
supplied)
Similarly, the length of one baseline that RA 3046 drew exceeded UNCLOS III’s limits.1avvphi1 The need
to shorten this baseline, and in addition, to optimize the location of basepoints using current maps,
became imperative as discussed by respondents:
[T]he amendment of the baselines law was necessary to enable the Philippines to draw the outer limits of
its maritime zones including the extended continental shelf in the manner provided by Article 47 of
[UNCLOS III]. As defined by R.A. 3046, as amended by R.A. 5446, the baselines suffer from some
technical deficiencies, to wit:
1. The length of the baseline across Moro Gulf (from Middle of 3 Rock Awash to Tongquil Point) is 140.06
nautical miles x x x. This exceeds the maximum length allowed under Article 47(2) of the [UNCLOS III],
which states that "The length of such baselines shall not exceed 100 nautical miles, except that up to 3
per cent of the total number of baselines enclosing any archipelago may exceed that length, up to a
maximum length of 125 nautical miles."
2. The selection of basepoints is not optimal. At least 9 basepoints can be skipped or deleted from the
baselines system. This will enclose an additional 2,195 nautical miles of water.
3. Finally, the basepoints were drawn from maps existing in 1968, and not established by geodetic survey
methods. Accordingly, some of the points, particularly along the west coasts of Luzon down to Palawan
were later found to be located either inland or on water, not on low-water line and drying reefs as
prescribed by Article 47.35
Hence, far from surrendering the Philippines’ claim over the KIG and the Scarborough Shoal, Congress’
decision to classify the KIG and the Scarborough Shoal as "‘Regime[s] of Islands’ under the Republic of
the Philippines consistent with Article 121"36 of UNCLOS III manifests the Philippine State’s responsible
observance of its pacta sunt servanda obligation under UNCLOS III. Under Article 121 of UNCLOS III,
any "naturally formed area of land, surrounded by water, which is above water at high tide," such as
portions of the KIG, qualifies under the category of "regime of islands," whose islands generate their own
applicable maritime zones.37
Statutory Claim Over Sabah under
RA 5446 Retained
Petitioners’ argument for the invalidity of RA 9522 for its failure to textualize the Philippines’ claim over
Sabah in North Borneo is also untenable. Section 2 of RA 5446, which RA 9522 did not repeal, keeps
open the door for drawing the baselines of Sabah:
Section 2. The definition of the baselines of the territorial sea of the Philippine Archipelago as provided in
this Act is without prejudice to the delineation of the baselines of the territorial sea around the
territory of Sabah, situated in North Borneo, over which the Republic of the Philippines has
acquired dominion and sovereignty. (Emphasis supplied)
UNCLOS III and RA 9522 not
Incompatible with the Constitution’s
Delineation of Internal Waters
As their final argument against the validity of RA 9522, petitioners contend that the law unconstitutionally
"converts" internal waters into archipelagic waters, hence subjecting these waters to the right of innocent
and sea lanes passage under UNCLOS III, including overflight. Petitioners extrapolate that these passage
rights indubitably expose Philippine internal waters to nuclear and maritime pollution hazards, in violation
of the Constitution.38
Whether referred to as Philippine "internal waters" under Article I of the Constitution39 or as "archipelagic
waters" under UNCLOS III (Article 49 [1]), the Philippines exercises sovereignty over the body of water
lying landward of the baselines, including the air space over it and the submarine areas underneath.
UNCLOS III affirms this:
Article 49. Legal status of archipelagic waters, of the air space over archipelagic waters and of their bed
and subsoil. –
1. The sovereignty of an archipelagic State extends to the waters enclosed by the archipelagic
baselines drawn in accordance with article 47, described as archipelagic waters, regardless of their
depth or distance from the coast.
2. This sovereignty extends to the air space over the archipelagic waters, as well as to their bed
and subsoil, and the resources contained therein.
xxxx
4. The regime of archipelagic sea lanes passage established in this Part shall not in other respects
affect the status of the archipelagic waters, including the sea lanes, or the exercise by the
archipelagic State of its sovereignty over such waters and their air space, bed and subsoil, and
the resources contained therein. (Emphasis supplied)
The fact of sovereignty, however, does not preclude the operation of municipal and international law
norms subjecting the territorial sea or archipelagic waters to necessary, if not marginal, burdens in the
interest of maintaining unimpeded, expeditious international navigation, consistent with the international
law principle of freedom of navigation. Thus, domestically, the political branches of the Philippine
government, in the competent discharge of their constitutional powers, may pass legislation designating
routes within the archipelagic waters to regulate innocent and sea lanes passage.40 Indeed, bills drawing
nautical highways for sea lanes passage are now pending in Congress.41
In the absence of municipal legislation, international law norms, now codified in UNCLOS III, operate to
grant innocent passage rights over the territorial sea or archipelagic waters, subject to the treaty’s
limitations and conditions for their exercise.42 Significantly, the right of innocent passage is a customary
international law,43 thus automatically incorporated in the corpus of Philippine law.44 No modern State
can validly invoke its sovereignty to absolutely forbid innocent passage that is exercised in accordance
with customary international law without risking retaliatory measures from the international community.
The fact that for archipelagic States, their archipelagic waters are subject to both the right of innocent
passage and sea lanes passage45 does not place them in lesser footing vis-à-vis continental coastal
States which are subject, in their territorial sea, to the right of innocent passage and the right of transit
passage through international straits. The imposition of these passage rights through archipelagic waters
under UNCLOS III was a concession by archipelagic States, in exchange for their right to claim all the
waters landward of their baselines, regardless of their depth or distance from the coast, as archipelagic
waters subject to their territorial sovereignty. More importantly, the recognition of archipelagic States’
archipelago and the waters enclosed by their baselines as one cohesive entity prevents the treatment of
their islands as separate islands under UNCLOS III.46 Separate islands generate their own maritime
zones, placing the waters between islands separated by more than 24 nautical miles beyond the States’
territorial sovereignty, subjecting these waters to the rights of other States under UNCLOS III.47
Petitioners’ invocation of non-executory constitutional provisions in Article II (Declaration of Principles and
State Policies)48 must also fail. Our present state of jurisprudence considers the provisions in Article II as
mere legislative guides, which, absent enabling legislation, "do not embody judicially enforceable
constitutional rights x x x."49 Article II provisions serve as guides in formulating and interpreting
implementing legislation, as well as in interpreting executory provisions of the Constitution. Although
Oposa v. Factoran50 treated the right to a healthful and balanced ecology under Section 16 of Article II
as an exception, the present petition lacks factual basis to substantiate the claimed constitutional
violation. The other provisions petitioners cite, relating to the protection of marine wealth (Article XII,
Section 2, paragraph 251 ) and subsistence fishermen (Article XIII, Section 752 ), are not violated by RA
9522.
In fact, the demarcation of the baselines enables the Philippines to delimit its exclusive economic zone,
reserving solely to the Philippines the exploitation of all living and non-living resources within such zone.
Such a maritime delineation binds the international community since the delineation is in strict
observance of UNCLOS III. If the maritime delineation is contrary to UNCLOS III, the international
community will of course reject it and will refuse to be bound by it.
UNCLOS III favors States with a long coastline like the Philippines. UNCLOS III creates a sui generis
maritime space – the exclusive economic zone – in waters previously part of the high seas. UNCLOS III
grants new rights to coastal States to exclusively exploit the resources found within this zone up to 200
nautical miles.53 UNCLOS III, however, preserves the traditional freedom of navigation of other States
that attached to this zone beyond the territorial sea before UNCLOS III.
RA 9522 and the Philippines’ Maritime Zones
Petitioners hold the view that, based on the permissive text of UNCLOS III, Congress was not bound to
pass RA 9522.54 We have looked at the relevant provision of UNCLOS III55 and we find petitioners’
reading plausible. Nevertheless, the prerogative of choosing this option belongs to Congress, not to this
Court. Moreover, the luxury of choosing this option comes at a very steep price. Absent an UNCLOS III
compliant baselines law, an archipelagic State like the Philippines will find itself devoid of internationally
acceptable baselines from where the breadth of its maritime zones and continental shelf is measured.
This is recipe for a two-fronted disaster: first, it sends an open invitation to the seafaring powers to freely
enter and exploit the resources in the waters and submarine areas around our archipelago; and second, it
weakens the country’s case in any international dispute over Philippine maritime space. These are
consequences Congress wisely avoided.
The enactment of UNCLOS III compliant baselines law for the Philippine archipelago and adjacent areas,
as embodied in RA 9522, allows an internationally-recognized delimitation of the breadth of the
Philippines’ maritime zones and continental shelf. RA 9522 is therefore a most vital step on the part of the
Philippines in safeguarding its maritime zones, consistent with the Constitution and our national interest.
WHEREFORE, we DISMISS the petition.

G.R. No. L-409 January 30, 1947

ANASTACIO LAUREL, petitioner,
vs.
ERIBERTO MISA, respondent.
Claro M. Recto and Querube C. Makalintal for petitioner.
First Assistant Solicitor General Reyes and Solicitor Hernandez, Jr., for respondent.
RESOLUTION
In G.R. No. L-409, Anastacio Laurel vs. Eriberto Misa, etc., the Court, acting on the petition for habeas
corpus filed by Anastacio Laurel and based on a theory that a Filipino citizen who adhered to the enemy
giving the latter aid and comfort during the Japanese occupation cannot be prosecuted for the crime of
treason defined and penalized by article 114 of the Revised Penal Code, for the reason (1) that the
sovereignty of the legitimate government in the Philippines and, consequently, the correlative allegiance
of Filipino citizens thereto was then suspended; and (2) that there was a change of sovereignty over
these Islands upon the proclamation of the Philippine Republic:
(1) Considering that a citizen or subject owes, not a qualified and temporary, but an absolute and
permanent allegiance, which consists in the obligation of fidelity and obedience to his government or
sovereign; and that this absolute and permanent allegiance should not be confused with the qualified and
temporary allegiance which a foreigner owes to the government or sovereign of the territory wherein he
resides, so long as he remains there, in return for the protection he receives, and which consists in the
obedience to the laws of the government or sovereign. (Carlisle vs. Unite States, 21 Law. ed., 429;
Secretary of State Webster Report to the President of the United States in the case of Thraser, 6 Web.
Works, 526);
Considering that the absolute and permanent allegiance of the inhabitants of a territory occupied by the
enemy of their legitimate government or sovereign is not abrogated or severed by the enemy occupation,
because the sovereignty of the government or sovereign de jure is not transferred thereby to the
occupier, as we have held in the cases of Co Kim Cham vs. Valdez Tan Keh and Dizon (75 Phil., 113)
and of Peralta vs. Director of Prisons (75 Phil., 285), and if it is not transferred to the occupant it must
necessarily remain vested in the legitimate government; that the sovereignty vested in the titular
government (which is the supreme power which governs a body politic or society which constitute the
state) must be distinguished from the exercise of the rights inherent thereto, and may be destroyed, or
severed and transferred to another, but it cannot be suspended because the existence of sovereignty
cannot be suspended without putting it out of existence or divesting the possessor thereof at least during
the so-called period of suspension; that what may be suspended is the exercise of the rights of
sovereignty with the control and government of the territory occupied by the enemy passes temporarily to
the occupant; that the subsistence of the sovereignty of the legitimate government in a territory occupied
by the military forces of the enemy during the war, "although the former is in fact prevented from
exercising the supremacy over them" is one of the "rules of international law of our times"; (II Oppenheim,
6th Lauterpacht ed., 1944, p. 482), recognized, by necessary implication, in articles 23, 44, 45, and 52 of
Hague Regulation; and that, as a corollary of the conclusion that the sovereignty itself is not suspended
and subsists during the enemy occupation, the allegiance of the inhabitants to their legitimate government
or sovereign subsists, and therefore there is no such thing as suspended allegiance, the basic theory on
which the whole fabric of the petitioner's contention rests;
Considering that the conclusion that the sovereignty of the United State was suspended in Castine, set
forth in the decision in the case of United States vs. Rice, 4 Wheaton, 246, 253, decided in 1819, and
quoted in our decision in the cases of Co Kim Cham vs. Valdez Tan Keh and Dizon and Peralta vs.
Director of Prisons, supra, in connection with the question, not of sovereignty, but of the existence of a
government de facto therein and its power to promulgate rules and laws in the occupied territory, must
have been based, either on the theory adopted subsequently in the Hague Convention of 1907, that the
military occupation of an enemy territory does not transfer the sovereignty to the occupant; that, in the
first case, the word "sovereignty" used therein should be construed to mean the exercise of the rights of
sovereignty, because as this remains vested in the legitimate government and is not transferred to the
occupier, it cannot be suspended without putting it out of existence or divesting said government thereof;
and that in the second case, that is, if the said conclusion or doctrine refers to the suspension of the
sovereignty itself, it has become obsolete after the adoption of the Hague Regulations in 1907, and
therefore it can not be applied to the present case;
Considering that even adopting the words "temporarily allegiance," repudiated by Oppenheim and other
publicists, as descriptive of the relations borne by the inhabitants of the territory occupied by the enemy
toward the military government established over them, such allegiance may, at most, be considered
similar to the temporary allegiance which a foreigner owes to the government or sovereign of the territory
wherein he resides in return for the protection he receives as above described, and does not do away
with the absolute and permanent allegiance which the citizen residing in a foreign country owes to his
own government or sovereign; that just as a citizen or subject of a government or sovereign may be
prosecuted for and convicted of treason committed in a foreign country, in the same way an inhabitant of
a territory occupied by the military forces of the enemy may commit treason against his own legitimate
government or sovereign if he adheres to the enemies of the latter by giving them aid and comfort; and
that if the allegiance of a citizen or subject to his government or sovereign is nothing more than
obedience to its laws in return for the protection he receives, it would necessarily follow that a citizen who
resides in a foreign country or state would, on one hand, ipso facto acquire the citizenship thereof since
he has enforce public order and regulate the social and commercial life, in return for the protection he
receives, and would, on the other hand, lose his original citizenship, because he would not be bound to
obey most of the laws of his own government or sovereign, and would not receive, while in a foreign
country, the protection he is entitled to in his own;
Considering that, as a corollary of the suspension of the exercise of the rights of sovereignty by the
legitimate government in the territory occupied by the enemy military forces, because the authority of the
legitimate power to govern has passed into the hands of the occupant (Article 43, Hague Regulations),
the political laws which prescribe the reciprocal rights, duties and obligation of government and citizens,
are suspended or in abeyance during military occupation (Co Kim cham vs. Valdez Tan Keh and dizon,
supra), for the only reason that as they exclusively bear relation to the ousted legitimate government, they
are inoperative or not applicable to the government established by the occupant; that the crimes against
national security, such as treason and espionage; inciting to war, correspondence with hostile country,
flight to enemy's country, as well as those against public order, such as rebellion, sedition, and disloyalty,
illegal possession of firearms, which are of political complexion because they bear relation to, and are
penalized by our Revised Penal Code as crimes against the legitimate government, are also suspended
or become inapplicable as against the occupant, because they can not be committed against the latter
(Peralta vs. Director of Prisons, supra); and that, while the offenses against public order to be preserved
by the legitimate government were inapplicable as offenses against the invader for the reason above
stated, unless adopted by him, were also inoperative as against the ousted government for the latter was
not responsible for the preservation of the public order in the occupied territory, yet article 114 of the said
Revised Penal Code, was applicable to treason committed against the national security of the legitimate
government, because the inhabitants of the occupied territory were still bound by their allegiance to the
latter during the enemy occupation;
Considering that, although the military occupant is enjoined to respect or continue in force, unless
absolutely prevented by the circumstances, those laws that enforce public order and regulate the social
and commercial life of the country, he has, nevertheless, all the powers of de facto government and may,
at his pleasure, either change the existing laws or make new ones when the exigencies of the military
service demand such action, that is, when it is necessary for the occupier to do so for the control of the
country and the protection of his army, subject to the restrictions or limitations imposed by the Hague
Regulations, the usages established by civilized nations, the laws of humanity and the requirements of
public conscience (Peralta vs. Director of Prisons, supra; 1940 United States Rules of Land Warfare 76,
77); and that, consequently, all acts of the military occupant dictated within these limitations are obligatory
upon the inhabitants of the territory, who are bound to obey them, and the laws of the legitimate
government which have not been adopted, as well and those which, though continued in force, are in
conflict with such laws and orders of the occupier, shall be considered as suspended or not in force and
binding upon said inhabitants;
Considering that, since the preservation of the allegiance or the obligation of fidelity and obedience of a
citizen or subject to his government or sovereign does not demand from him a positive action, but only
passive attitude or forbearance from adhering to the enemy by giving the latter aid and comfort, the
occupant has no power, as a corollary of the preceding consideration, to repeal or suspend the operation
of the law of treason, essential for the preservation of the allegiance owed by the inhabitants to their
legitimate government, or compel them to adhere and give aid and comfort to him; because it is evident
that such action is not demanded by the exigencies of the military service or not necessary for the control
of the inhabitants and the safety and protection of his army, and because it is tantamount to practically
transfer temporarily to the occupant their allegiance to the titular government or sovereign; and that,
therefore, if an inhabitant of the occupied territory were compelled illegally by the military occupant,
through force, threat or intimidation, to give him aid and comfort, the former may lawfully resist and die if
necessary as a hero, or submit thereto without becoming a traitor;
Considering that adoption of the petitioner's theory of suspended allegiance would lead to disastrous
consequences for small and weak nations or states, and would be repugnant to the laws of humanity and
requirements of public conscience, for it would allow invaders to legally recruit or enlist the Quisling
inhabitants of the occupied territory to fight against their own government without the latter incurring the
risk of being prosecuted for treason, and even compel those who are not aid them in their military
operation against the resisting enemy forces in order to completely subdue and conquer the whole nation,
and thus deprive them all of their own independence or sovereignty — such theory would sanction the
action of invaders in forcing the people of a free and sovereign country to be a party in the nefarious task
of depriving themselves of their own freedom and independence and repressing the exercise by them of
their own sovereignty; in other words, to commit a political suicide;
(2) Considering that the crime of treason against the government of the Philippines defined and penalized
in article 114 of the Penal Code, though originally intended to be a crime against said government as then
organized by authority of the sovereign people of the United States, exercised through their authorized
representative, the Congress and the President of the United States, was made, upon the establishment
of the Commonwealth Government in 1935, a crime against the Government of the Philippines
established by authority of the people of the Philippines, in whom the sovereignty resides according to
section 1, Article II, of the Constitution of the Philippines, by virtue of the provision of section 2, Article XVI
thereof, which provides that "All laws of the Philippine Islands . . . shall remain operative, unless
inconsistent with this Constitution . . . and all references in such laws to the Government or officials of the
Philippine Islands, shall be construed, in so far as applicable, to refer to the Government and
corresponding officials under this constitution;
Considering that the Commonwealth of the Philippines was a sovereign government, though not absolute
but subject to certain limitations imposed in the Independence Act and incorporated as Ordinance
appended to our Constitution, was recognized not only by the Legislative Department or Congress of the
United States in approving the Independence Law above quoted and the Constitution of the Philippines,
which contains the declaration that "Sovereignty resides in the people and all government authority
emanates from them" (section 1, Article II), but also by the Executive Department of the United States;
that the late President Roosevelt in one of his messages to Congress said, among others, "As I stated on
August 12, 1943, the United States in practice regards the Philippines as having now the status as a
government of other independent nations — in fact all the attributes of complete and respected
nationhood" (Congressional Record, Vol. 29, part 6, page 8173); and that it is a principle upheld by the
Supreme Court of the United States in many cases, among them in the case of Jones vs. United States
(137 U.S., 202; 34 Law. ed., 691, 696) that the question of sovereignty is "a purely political question, the
determination of which by the legislative and executive departments of any government conclusively
binds the judges, as well as all other officers, citizens and subjects of the country.
Considering that section I (1) of the Ordinance appended to the Constitution which provides that pending
the final and complete withdrawal of the sovereignty of the United States "All citizens of the Philippines
shall owe allegiance to the United States", was one of the few limitations of the sovereignty of the Filipino
people retained by the United States, but these limitations do not away or are not inconsistent with said
sovereignty, in the same way that the people of each State of the Union preserves its own sovereignty
although limited by that of the United States conferred upon the latter by the States; that just as to reason
may be committed against the Federal as well as against the State Government, in the same way treason
may have been committed during the Japanese occupation against the sovereignty of the United States
as well as against the sovereignty of the Philippine Commonwealth; and that the change of our form of
government from Commonwealth to Republic does not affect the prosecution of those charged with the
crime of treason committed during the Commonwealth, because it is an offense against the same
government and the same sovereign people, for Article XVIII of our Constitution provides that "The
government established by this constitution shall be known as the Commonwealth of the Philippines.
Upon the final and complete withdrawal of the sovereignty of the United States and the proclamation of
Philippine independence, the Commonwealth of the Philippines shall thenceforth be known as the
Republic of the Philippines";
This Court resolves, without prejudice to write later on a more extended opinion, to deny the petitioner's
petition, as it is hereby denied, for the reasons above set forth and for others to be stated in the said
opinion, without prejudice to concurring opinion therein, if any. Messrs. Justices Paras and Hontiveros
dissent in a separate opinion. Mr. justice Perfecto concurs in a separate opinion.

Separate Opinions
PERFECTO, J., concurring:
Treason is a war crime. It is not an all-time offense. It cannot be committed in peace time. While there is
peace, there are no traitors. Treason may be incubated when peace reigns. Treasonable acts may actually
be perpetrated during peace, but there are no traitors until war has started.
As treason is basically a war crime, it is punished by the state as a measure of self-defense and self-
preservation. The law of treason is an emergency measure. It remains dormant until the emergency arises.
But as soon as war starts, it is relentlessly put into effect. Any lukewarm attitude in its enforcement will only
be consistent with national harakiri. All war efforts would be of no avail if they should be allowed to be
sabotaged by fifth columnists, by citizens who have sold their country out to the enemy, or any other kind
of traitors, and this would certainly be the case if he law cannot be enforced under the theory of suspension.
Petitioner's thesis that allegiance to our government was suspended during enemy occupation is advanced
in support of the proposition that, since allegiance is identical with obedience to law, during the enemy
occupation, the laws of the Commonwealth were suspended. Article 114 of the Revised Penal Code, the
law punishing treason, under the theory, was one of the laws obedience to which was also suspended.
Allegiance has been defined as the obligation for fidelity and obedience which the individual owes to his
government or his sovereign in return for the protection which he receives.
"Allegiance", as the return is generally used, means fealty or fidelity to the government of which the person
is either a citizen or subject. Murray vs. The Charming Betsy, 6 U.S. (2 Cranch), 64, 120; 2 Law. ed., 208.
"Allegiance" was said by Mr. Justice Story to be "nothing more than the tie or duty of obedience of a subject
to the sovereign, under whose protection he is." United States vs. Wong Kim Ark, 18 S. Ct., 461; 169 U.S.,
649; 42 Law. ed., 890.
Allegiance is that duty which is due from every citizen to the state, a political duty binding on him who enjoys
the protection of the Commonwealth, to render service and fealty to the federal government. It is that duty
which is reciprocal to the right of protection, arising from the political relations between the government and
the citizen. Wallace vs. Harmstad, 44 Pa. (8 Wright), 492, 501.
By "allegiance" is meant the obligation to fidelity and obedience which the individual owes to the government
under which he lives, or to his sovereign, in return for the protection which he receives. It may be an absolute
and permanent obligation, or it may be a qualified and temporary one. A citizen or subject owes an absolute
and permanent allegiance to his government or sovereign, or at least until, by some open and distinct act,
he renounces it and becomes a citizen or subject of another government or sovereign, and an alien while
domiciled in a country owes it a temporary allegiance, which is continuous during his residence. Carlisle
vs. United States, 83 U.S. (16 Wall.), 147, 154; 21 Law ed., 426.
"Allegiance," as defined by Blackstone, "is the tie or ligament which binds the subject to the King, in return
for that protection which the King affords the subject. Allegiance, both expressed and implied, is of two
sorts, the one natural, the other local, the former being perpetual, the latter temporary. Natural allegiance
is such as is due from all men born within the King's dominions immediately upon their birth, for immediately
upon their birth they are under the King's protection. Natural allegiance is perpetual, and for this reason,
evidently founded on the nature of government. Allegiance is a debt due from the subject upon an implied
contract with the prince that so long as the one affords protection the other will demean himself faithfully.
Natural-born subjects have a great variety of rights which they acquire by being born within the King's
liegance, which can never be forfeited but by their own misbehaviour; but the rights of aliens are much
more circumscribed, being acquired only by residence, and lost whenever they remove. If an alien could
acquire a permanent property in lands, he must owe an allegiance equally permanent to the King, which
would probably be inconsistent with that which he owes his natural liege lord; besides, that thereby the
nation might, in time, be subject to foreign influence and feel many other inconveniences." Indians within
the state are not aliens, but citizens owing allegiance to the government of a state, for they receive
protection from the government and are subject to its laws. They are born in allegiance to the government
of the state. Jackson vs. Goodell, 20 Johns., 188, 911. (3 Words and Phrases, Permanent ed., 226-227.)
Allegiance. — Fealty or fidelity to the government of which the person is either a citizen or subject; the duty
which is due from every citizen to the state; a political duty, binding on him who enjoys the protection of the
commonwealth, to render service and fealty to the federal government; the obligation of fidelity and
obedience which the individual owes to the government or to the sovereign under which he lives in return
for the protection he receives; that duty is reciprocal to the right of protection he receives; that duty which
is reciprocal to the right of protection, arising from the political relations between the government and the
citizen.
Classification. — Allegiance is of four kinds, namely: (1) Natural allegiance — that which arises by nature
and birth; (2) acquired allegiance — that arising through some circumstance or act other than birth, namely,
by denization or naturalization; (3) local allegiance-- that arising from residence simply within the country,
for however short a time; and (4) legal allegiance — that arising from oath, taken usually at the town or leet,
for, by the common law, the oath of allegiance might be tendered to every one upon attaining the age of
twelve years. (3 C.J.S., p.885.)
Allegiance. — the obligation of fidelity and obedience which the individual owes to the government under
which he lives, or to his sovereign in return for the protection he receives. 15 R.C.L., 140. (Ballentine Law
Dictionary, p. 68.).
"Allegiance," as its etymology indicates, is the name for the tie which binds the citizen to his state — the
obligation of obedience and support which he owes to it. The state is the political person to whom this liege
fealty is due. Its substance is the aggregate of persons owing this allegiance. The machinery through which
it operates is its government. The persons who operate this machinery constitute its magistracy. The rules
of conduct which the state utters or enforces are its law, and manifest its will. This will, viewed as legally
supreme, is its sovereignty. (W.W. Willoughby, Citizenship and Allegiance in Constitutional and
International Law, 1 American Journal of International Law, p. 915.).
The obligations flowing from the relation of a state and its nationals are reciprocal in character. This principle
had been aptly stated by the Supreme Court of the United States in its opinion in the case of Luria vs.
United States:
Citizenship is membership in a political society and implies a duty of allegiance on the part of the member
and a duty protection on the part of the society. These are reciprocal obligations, one being a compensation
for the other. (3 Hackworth, Digest of International Law, 1942 ed., p.6.)
Allegiance. — The tie which binds the citizen to the government, in return for the protection which the
government affords him. The duty which the subject owes to the sovereign, correlative with the protection
received.
It is a comparatively modern corruption of ligeance (ligeantia), which is derived from liege (ligius), meaning
absolute or unqualified. It signified originally liege fealty, i. e., absolute and qualified fealty. 18 L. Q. Rev.,
47.
Allegiance may be an absolute and permanent obligation, or it may be a qualified and temporary one; the
citizen or subject owes the former to his government or sovereign, until by some act he distinctly
renounces it, whilst the alien domiciled in the country owes a temporary and local allegiance continuing
during such residence. (Carlisle vs. United States, 16 Wall. [U.S.], 154; 21 Law. ed., 426. (1 Bouvier's
Law Dictionary, p. 179.).
The above quotations express ideas that do not fit exactly into the Philippine pattern in view of the
revolutionary insertion in our Constitution of the fundamental principle that "sovereignty resides in the
people and all government authority emanates from them." (Section 1, Article II.) The authorities above
quoted, judges and juridical publicists define allegiance with the idea that sovereignty resides somewhere
else, on symbols or subjects other than the people themselves. Although it is possible that they had
already discovered that the people and only the people are the true sovereign, their minds were not yet
free from the shackles of the tradition that the powers of sovereignty have been exercised by princes and
monarchs, by sultans and emperors, by absolute and tyrannical rules whose ideology was best
expressed in the famous words of one of the kings of France: "L'etat c'est moi," or such other persons or
group of persons posing as the government, as an entity different and in opposition to the people
themselves. Although democracy has been known ever since old Greece, and modern democracies in
the people, nowhere is such principle more imperative than in the pronouncement embodied in the
fundamental law of our people.
To those who think that sovereignty is an attribute of government, and not of the people, there may be
some plausibility in the proposition that sovereignty was suspended during the enemy occupation, with
the consequence that allegiance must also have been suspended, because our government stopped to
function in the country. But the idea cannot have any place under our Constitution. If sovereignty is an
essential attribute of our people, according to the basic philosophy of Philippine democracy, it could not
have been suspended during the enemy occupation. Sovereignty is the very life of our people, and there
is no such thing as "suspended life." There is no possible middle situation between life and death.
Sovereignty is the very essence of the personality and existence of our people. Can anyone imagine the
possibility of "suspended personality" or "suspended existence" of a people? In no time during enemy
occupation have the Filipino people ceased to be what they are.
The idea of suspended sovereignty or suspended allegiance is incompatible with our Constitution.
There is similarity in characteristics between allegiance to the sovereign and a wife's loyalty to her
husband. Because some external and insurmountable force precludes the husband from exercising his
marital powers, functions, and duties and the wife is thereby deprived of the benefits of his protection,
may the wife invoke the theory of suspended loyalty and may she freely share her bed with the assailant
of their home? After giving aid and comfort to the assailant and allowing him to enjoy her charms during
the former's stay in the invaded home, may the wife allege as defense for her adultery the principle of
suspended conjugal fidelity?
Petitioner's thesis on change of sovereignty at the advent of independence on July 4, 1946, is
unacceptable. We have already decided in Brodett vs. De la Rosa and Vda. de Escaler (p. 752, ante) that
the Constitution of the Republic is the same as that of the Commonwealth. The advent of independence
had the effect of changing the name of our Government and the withdrawal by the United States of her
power to exercise functions of sovereignty in the Philippines. Such facts did not change the sovereignty of
the Filipino people. That sovereignty, following our constitutional philosophy, has existed ever since our
people began to exist. It has been recognized by the United States of America, at least since 1935, when
President Roosevelt approved our Constitution. By such act, President Roosevelt, as spokesman of the
American people, accepted and recognized the principle that sovereignty resides in the people that is,
that Philippine sovereignty resides in the Filipino people.
The same sovereignty had been internationally recognized long before the proclamation of independence
on July 4, 1946. Since the early part of the Pacific war, President Quezon had been sitting as
representative of a sovereign people in the Allied War Council, and in June, 1945, the same Filipino
people took part — outstanding and brilliant, it may be added — in the drafting and adoption of the
charter of the United Nations, the unmistakable forerunner of the future democratic federal constitution of
the world government envisioned by all those who adhere to the principle of unity of all mankind, the early
realization of which is anxiously desired by all who want to be spared the sufferings, misery and disaster
of another war.
Under our Constitution, the power to suspend laws is of legislative nature and is lodged in Congress.
Sometimes it is delegated to the Chief Executive, such as the power granted by the Election Code to the
President to suspend the election in certain districts and areas for strong reasons, such as when there is
rebellion, or a public calamity, but it has never been exercised by tribunals. The Supreme Court has the
power to declare null and void all laws violative of the Constitution, but it has no power, authority, or
jurisdiction to suspend or declare suspended any valid law, such as the one on treason which petitioner
wants to be included among the laws of the Commonwealth which, by his theory of suspended allegiance
and suspended sovereignty, he claims have been suspended during the Japanese occupation.
Suppose President Quezon and his government, instead of going from Corregidor to Australia, and later
to Washington, had fled to the mountains of Luzon, and a group of Filipino renegades should have killed
them to serve the interests of the Japanese imperial forces. By petitioner's theory, those renegades
cannot be prosecuted for treason or for rebellion or sedition, as the laws punishing them were suspended.
Such absurd result betrays the untenability of the theory.
"The defense of the State is a prime duty of Government, and in the fulfillment of that duty all citizens may
be required by law to render personal, military or civil service." Thus, section 2 of Article II of the
Constitution provides: That duty of defense becomes more imperative in time of war and when the
country is invaded by an aggressor nation. How can it be fulfilled if the allegiance of the citizens to the
sovereign people is suspended during enemy occupation? The framers of the Constitution surely did not
entertain even for the moment the absurdity that when the allegiance of the citizens to the sovereign
people is more needed in the defense of the survival of the state, the same should be suspended, and
that upon such suspension those who may be required to render personal, military or civil service may
claim exemption from the indispensable duty of serving their country in distress.
Petitioner advances the theory that protection in the consideration of allegiance. He argues that the
Commonwealth Government having been incapacitated during enemy occupation to protect the citizens,
the latter were relieved of their allegiance to said government. The proposition is untenable. Allegiance to
the sovereign is an indispensable bond for the existence of society. If that bond is dissolved, society has
to disintegrate. Whether or not the existence of the latter is the result of the social compact mentioned by
Roseau, there can be no question that organized society would be dissolved if it is not united by the
cohesive power of the citizen's allegiance. Of course, the citizens are entitled to the protection of their
government, but whether or not that government fulfills that duty, is immaterial to the need of maintaning
the loyalty and fidelity of allegiance, in the same way that the physical forces of attraction should be kept
unhampered if the life of an individual should continue, irrespective of the ability or inability of his mind to
choose the most effective measures of personal protection.
After declaring that all legislative, executive, and judicial processes had during and under the Japanese
regime, whether executed by the Japanese themselves or by Filipino officers of the puppet government
they had set up, are null and void, as we have done in our opinions in Co Kim Cham vs. Valdez Tan Keh
and Dizon (75 Phil., 113), in Peralta vs. Director of Prison (75, Phil., 285), and in several other cases
where the same question has been mentioned, we cannot consistently accept petitioner's theory.
If all laws or legislative acts of the enemy during the occupation were null and void, and as we cannot
imagine the existence of organized society, such as the one constituted by the Filipino people, without
laws of the Commonwealth were the ones in effect during the occupation and the only ones that could
claim obedience from our citizens.
Petitioner would want us to accept the thesis that during the occupation we owed allegiance to the
enemy. To give way to that paradoxical and disconcerting allegiance, it is suggested that we accept that
our allegiance to our legitimate government was suspended. Petitioner's proposition has to fall by its own
weight, because of its glaring absurdities. Allegiance, like its synonyms, loyalty and fidelity, is based on
feelings of attraction, love, sympathy, admiration, respect, veneration, gratitude, amity, understanding,
friendliness. These are the feelings or some of the feelings that bind us to our own people, and are the
natural roots of the duty of allegiance we owe them. The enemy only provokes repelling and repulsive
feelings — hate, anger, vexation, chagrin, mortification, resentment, contempt, spitefulness. The natural
incompatibility of political, social and ethical ideologies between our people and the Japanese, making
impossible the existence of any feeling of attraction between them, aside from the initial fact that the
Japanese invaded our country as our enemy, was aggravated by the morbid complexities of haughtiness,
braggadocio and beastly brutality of the Nippon soldiers and officers in their dealings with even the most
inoffensive of our citizens.
Giving bread to our enemy, and, after slapping one side of our face, offer him the other to be further
slapped, may appear to be divinely charitable, but to make them a reality, it is necessary to change
human nature. Political actions, legal rules and judicial decisions deal with human relations, taking man
as he is, not as he should be. To love the enemy is not natural. As long as human pyschology remains as
it is, the enemy shall always be hated. Is it possible to conceive an allegiance based on hatred?
The Japanese, having waged against us an illegal war condemned by prevailing principles of international
law, could not have established in our country any government that can be legally recognized as de facto.
They came as bandits and ruffians, and it is inconceivable that banditry and ruffianism can claim any duty
of allegiance — even a temporary one — from a decent people.
One of the implications of petitioner's theory, as intimated somewhere, is that the citizens, in case of
invasion, are free to do anything not forbidden by the Hague Conventions. Anybody will notice
immediately that the result will be the doom of small nations and peoples, by whetting the covetousness
of strong powers prone on imperialistic practices. In the imminence of invasion, weak-hearted soldiers of
the smaller nations will readily throw away their arms to rally behind the paladium of the invaders.
Two of the three great departments of our Government have already rejected petitioner's theory since
September 25, 1945, the day when Commonwealth Act No. 682 took effect. By said act, creating the
People's Court to try and decide all cases of crime against national security "committed between
December 8, 1941 and September 2, 1945," (section 2), the legislative and executive departments have
jointly declared that during the period above mentioned, including the time of Japanese occupation, all
laws punishing crimes against national security, including article 114 of the Revised Penal Code,
punishing treason, had remained in full effect and should be enforced.
That no one raised a voice in protest against the enactment of said act and that no one, at the time the
act was being considered by the Senate and the House of Representatives, ever dared to expose the
uselessness of creating a People's Court to try crime which, as claimed by petitioner, could not have been
committed as the laws punishing them have been suspended, is a historical fact of which the Supreme
Court may take judicial notice. This fact shows universal and unanimous agreement of our people that the
laws of the Commonwealth were not suspended and that the theory of suspended allegiance is just an
afterthought provoked by a desperate effort to help quash the pending treason cases at any cost.
Among the arguments adduced in favor of petitioner's theory is that it is based on generally accepted
principles of international law, although this argument becomes futile by petitioner's admission that the
theory is advantageous to strong powers but harmful to small and weak nations, thus hinting that the
latter cannot accept it by heart. Suppose we accept at face value the premise that the theories, urged by
petitioner, of suspended allegiance and suspended sovereignty are based on generally accepted
principles of international law. As the latter forms part of our laws by virtue of the provisions of section 3 of
Article II of the Constitution, it seems that there is no alternative but to accept the theory. But the theory
has the effect of suspending the laws, especially those political in nature. There is no law more political in
nature than the Constitution of the Philippines. The result is an inverted reproduction of the Greek myth of
Saturn devouring his own children. Here, under petitioner's theory, the offspring devours its parent.
Can we conceive of an instance in which the Constitution was suspended even for a moment?
There is conclusive evidence that the legislature, as policy-determining agency of government, even
since the Pacific war started on December 7, 1941, intimated that it would not accept the idea that our
laws should be suspended during enemy occupation. It must be remembered that in the middle of
December, 1941, when Manila and other parts of the archipelago were under constant bombing by
Japanese aircraft and enemy forces had already set foot somewhere in the Philippines, the Second
National Assembly passed Commonwealth Act No. 671, which came into effect on December 16, 1941.
When we approved said act, we started from the premise that all our laws shall continue in effect during
the emergency, and in said act we even went to the extent of authorizing the President "to continue in
force laws and appropriations which would lapse or otherwise become inoperative," (section 2, [d]), and
also to "promulgate such rules and regulations as he may deem necessary to carry out the national
policy," (section 2), that "the existence of war between the United States and other countries of Europe
and Asia, which involves the Philippines, makes it necessary to invest the President with extraordinary
powers in order to meet the resulting emergency." (Section 1.) To give emphasis to the intimation, we
provided that the rules and regulations provided "shall be in force and effect until the Congress of the
Philippines shall otherwise provide," foreseeing the possibility that Congress may not meet as scheduled
as a result of the emergency, including invasion and occupation by the enemy. Everybody was then
convinced that we did not have available the necessary means of repelling effectivity the enemy invasion.
Maybe it is not out of place to consider that the acceptance of petitioner's theory of suspended allegiance
will cause a great injustice to those who, although innocent, are now under indictment for treason and
other crimes involving disloyalty to their country, because their cases will be dismissed without the
opportunity for them to revindicate themselves. Having been acquitted upon a mere legal technicality
which appears to us to be wrong, history will indiscriminality classify them with the other accused who
were really traitors to their country. Our conscience revolts against the idea of allowing the innocent ones
to go down in the memory of future generations with the infamous stigma of having betrayed their own
people. They should not be deprived of the opportunity to show through the due process of law that they
are free from all blame and that, if they were really patriots, they acted as such during the critical period of
test.

HILADO, J., concurring:

I concur in the result reached in the majority opinion to the effect that during the so-called Japanese
occupation of the Philippines (which was nothing more than the occupation of Manila and certain other
specific regions of the Islands which constituted the minor area of the Archipelago) the allegiance of the
citizens of this country to their legitimate government and to the United States was not suspended, as well
as the ruling that during the same period there was no change of sovereignty here; but my reasons are
different and I proceed to set them forth:
I. SUSPENDED ALLEGIANCE.
(a) Before the horror and atrocities of World War I, which were multiplied more than a hundred-fold in
World War II, the nations had evolved certain rules and principles which came to be known as
International Law, governing their conduct with each other and toward their respective citizens and
inhabitants, in the armed forces or civilian life, in time of peace or in time of war. During the ages which
preceded that first world conflict the civilized governments had no realization of the potential excesses of
which "men's inhumanity to man" could be capable. Up to that time war was, at least under certain
conditions, considered as sufficiently justified, and the nations had not on that account, proscribed nor
renounced it as an instrument of national policy, or as a means of settling international disputes. It is not
for us now to dwell upon the reasons accounting for this historical fact. Suffice it to recognize its existence
in history.
But when in World War I civilized humanity saw that war could be, as it actually was, employed for entirely
different reasons and from entirely different motives, compared to previous wars, and the instruments and
methods of warfare had been so materially changed as not only to involve the contending armed forces
on well defined battlefields or areas, on land, in the sea, and in the air, but to spread death and
destruction to the innocent civilian populations and to their properties, not only in the countries engaged in
the conflict but also in neutral ones, no less than 61 civilized nations and governments, among them
Japan, had to formulate and solemnly subscribe to the now famous Briand-Kellogg Pact in the year 1928.
As said by Justice Jackson of the United States Supreme Court, as chief counsel for the United States in
the prosecution of "Axis war criminals," in his report to President Truman of June 7, 1945:
International law is not capable of development by legislation, for there is no continuously sitting
international legislature. Innovations and revisions in international law are brought about by the action of
governments designed to meet a change circumstances. It grows, as did the common law, through
decisions reached from time to time in adopting settled principles to new situations.
xxx xxx xxx
After the shock to civilization of the war of 1914-1918, however, a marked reversion to the earlier and
sounder doctrines of international law took place. By the time the Nazis came to power it was thoroughly
established that launching an aggressive war or the institution of war by treachery was illegal and that the
defense of legitimate warfare was no longer available to those who engaged in such an enterprise. It is
high time that we act on the juridical principle that aggressive war-making is illegal and criminal.
The re-establishment of the principle of justifiable war is traceable in many steps. One of the most
significant is the Briand-Kellogg Pact of 1928 by which Germany, Italy, and Japan, in common with the
United States and practically all the nations of the world, renounced war as an instrument of national
policy, bound themselves to seek the settlement of disputes only by pacific means, and condemned
recourse to war for the solution of international controversies.
Unless this Pact altered the legal status of wars of aggression, it has no meaning at all and comes close
to being an act of deception. In 1932 Mr. Henry L. Stimson, as United States Secretary of State, gave
voice to the American concept of its effect. He said, "war between nations was renounced by the
signatories of the Briand-Kellogg Treaty. This means that it has become illegal throughout practically the
entire world. It is no longer to be the source and subject of rights. It is no longer to be the principle around
which the duties, the conduct, and the rights of nations revolve. It is an illegal thing. . . . By that very act
we have made obsolete many legal precedents and have given the legal profession the task of re-
examining many of its Codes and treaties.
This Pact constitutes only one reversal of the viewpoint that all war is legal and has brought international
law into harmony with the common sense of mankind — that unjustifiable war is a crime.
Without attempting an exhaustive catalogue, we may mention the Geneva Protocol of 1924 for the Pacific
Settlement of International Disputes, signed by the representatives of forty-eight governments, which
declared that "a war of aggression constitutes .. an International crime. . . .
The Eight Assembly of the League of Nations in 1927, on unanimous resolution of the representatives of
forty-eight member-nations, including Germany, declared that a war of aggression constitutes an
international crime. At the Sixth Pan-American Conference of 1928, the twenty-one American Republics
unanimously adopted a resolution stating that "war of aggression constitutes an international crime
against the human species."
xxx xxx xxx
We therefore propose to change that a war of aggression is a crime, and that modern international law
has abolished the defense that those who incite or wage it are engaged in legitimate business. Thus may
the forces of the law be mobilized on the side of peace. ("U.S.A. — An American Review," published by
the United States Office of War Information, Vol. 2, No. 10; emphasis supplied.).
When Justice Jackson speaks of "a marked reversion to the earlier and sounder doctrines of international
law" and "the re-establishment of the principle of justifiable war," he has in mind no other than "the
doctrine taught by Grotius, the father of international law, that there is a distinction between the just and
the unjust war — the war of defense and the war of aggression" to which he alludes in an earlier
paragraph of the same report.
In the paragraph of said report immediately preceding the one last above mentioned Justice Jackson
says that "international law as taught in the 19th and the early part of the 20th century generally declared
that war-making was not illegal and no crime at law." But, as he says in one of the paragraphs
hereinabove quoted from that report, the Briand-Kellogg Pact constitutes a reversal of the view-point that
all war is legal and has brought international law into harmony with the common sense of mankind — that
unjustifiable war is a crime. Then he mentions as other reversals of the same viewpoint, the Geneva
Protocol of 1924 for the Pacific Settlement of International Disputes, declaring that a war of aggression
constitutes an international crime; the 8th assembly of the League of Nations in 1927, declaring that a war
of aggression constitutes an international crime; and the 6th Pan-American conference of 1928, which
unanimously adopted a resolution stating that war of aggression constitutes an international crime against
the human species: which enumeration, he says, is not an attempt at an exhaustive catalogue.
It is not disputed that the war started by Japan in the Pacific, first, against the United States, and later, in
rapid succession, against other allied nations, was a war of aggression and utterly unjustifiable. More
aggressive still, and more unjustifiable, as admitted on all sides, was its attack against the Philippines and
its consequent invasion and occupation of certain areas thereof.
Some of the rules and principles of international law which have been cited for petitioner herein in support
of his theory of suspended allegiance, have been evolved and accepted during those periods of the
history of nations when all war was considered legal, as stated by Justice Jackson, and the others have
reference to military occupation in the course of really justifiable war.
Japan in subscribing the Briand-Kellogg Pact thirteen years before she started the aggressive war which
threw the entire Pacific area into a seething cauldron from the last month of 1941 of the first week of
September, 1945, expressly agreed to outlaw, proscribe and renounce war as an instrument of national
policy, and bound herself to seek the settlement of her disputes with other nations only by pacific means.
Thus she expressly gave her consent to that modification of the then existing rules and principles of
international law governing the matter. With the modification, all the signatories to the pact necessarily
accepted and bound themselves to abide by all its implications, among them the outlawing, prescription
and renunciation of military occupation of another nation's territory in the course of a war thus outlawed,
proscribed and renounced. This is only one way of saving that the rules and principles of international law
therefore existing on the subject of military occupation were automatically abrogated and rendered
ineffective in all future cases of war coming under the ban and condemnation of the pact.
If an unjustifiable war is a crime; if a war of aggression constitutes an international crime; if such a war is
an international crime against the human species: a nation which occupies a foreign territory in the course
of such a war cannot possibly, under any principle of natural or positive law, acquire or posses any
legitimate power or right growing out or incident to such occupation. Concretely, Japan in criminally
invading the Philippines and occupying certain portions of its territory during the Pacific war, could not
have nor exercise, in the legal sense — and only this sense should we speak here — with respect to this
country and its citizens, any more than could a burglar breaking through a man's house pretends to have
or to exercise any legal power or right within that house with respect either to the person of the owner or
to his property. To recognize in the first instance any legal power or right on the part of the invader, and in
the second any legal power or right on the part of the burglar, the same as in case of a military occupant
in the course of a justifiable war, would be nothing short of legalizing the crime itself. It would be the most
monstrous and unpardonable contradiction to prosecute, condemn and hang the appropriately called war
criminals of Germany, Italy, and Japan, and at the same time recognize any lawfulness in their
occupation invaded. And let it not be forgotten that the Philippines is a member of the United Nations who
have instituted and conducted the so-called war crimes trials. Neither should we lose sight of the further
fact that this government has a representative in the international commission currently trying the
Japanese war criminals in Tokyo. These facts leave no room for doubt that this government is in entire
accord with the other United Nations in considering the Pacific war started by Japan as a crime. Not only
this, but this country had six years before the outbreak of the Pacific war already renounced war as an
instrument of national policy (Constitution, Article II, section 2), thus in consequence adopting the doctrine
of the Briand-Kellogg Pact.
Consequently, it is submitted that it would be absolutely wrong and improper for this Court to apply to the
occupation by Japan of certain areas of the Philippines during that war the rules and principles of
international law which might be applicable to a military occupation occurring in the course of a justifiable
war. How can this Court recognize any lawfulness or validity in that occupation when our own government
has sent a representative to said international commission in Tokyo trying the Japanese "war criminals"
precisely for the "crimes against humanity and peace" committed by them during World War II of which
said occupation was but part and parcel? In such circumstances how could such occupation produce no
less an effect than the suspension of the allegiance of our people to their country and government?
(b) But even in the hypothesis — and not more than a mere hypothesis — that when Japan occupied the
City of Manila and certain other areas of the Philippines she was engaged in a justifiable war, still the
theory of suspended allegiance would not hold good. The continuance of the allegiance owed to a notion
by its citizens is one of those high privileges of citizenship which the law of nations denies to the occupant
the power to interfere with.
. . . His (of occupant) rights are not, however, commensurate with his power. He is thus forbidden to take
certain measures which he may be able to apply, and that irrespective of their efficacy. The restrictions
imposed upon him are in theory designed to protect the individual in the enjoyment of some highly
important privileges. These concern his allegiance to the de jure sovereign, his family honor and domestic
relations, religious convictions, personal service, and connection with or residence in the occupied
territory.
The Hague Regulations declare that the occupant is forbidden to compel the inhabitants to swear
allegiance to the hostile power. . . . (III Hyde, International Law, 2d revised ed., pp. 1898-1899.)
. . . Nor may he (occupant) compel them (inhabitants) to take an oath of allegiance. Since the authority of
the occupant is not sovereignty, the inhabitants owe no temporary allegiance to him. . . . (II Oppenheim,
International Law, pp. 341-344.)
The occupant's lack of the authority to exact an oath of allegiance from the inhabitants of the occupied
territory is but a corollary of the continuance of their allegiance to their own lawful sovereign. This
allegiance does not consist merely in obedience to the laws of the lawful sovereign, but more essentially
consists in loyalty or fealty to him. In the same volume and pages of Oppenheim's work above cited, after
the passage to the effect that the inhabitants of the occupied territory owe no temporary allegiance to the
occupant it is said that "On the other hand, he may compel them to take an oath — sometimes called an
'oath of neutrality' — . . . willingly to submit to his 'legitimate commands.' Since, naturally, such "legitimate
commands" include the occupant's laws, it follows that said occupant, where the rule is applicable, has
the right to compel the inhabitants to take an oath of obedience to his laws; and since according to the
same rule, he cannot exact from the inhabitants an oath of obedience to his laws; and since, according to
the same rule, he cannot exact from the inhabitants an oath of allegiance, it follows that obedience to his
laws, which he can exact from them, does not constitute allegiance.
(c) The theory of suspended allegiance is unpatriotic to the last degree. To say that when the one's
country is unable to afford him in its protection, he ceases to be bound to it by the sacred ties of
allegiance, is to advocate the doctrine that precisely when his country is in such distress, and therefore
most needs his loyalty, he is absolved from the loyalty. Love of country should be something permanent
and lasting, ending only in death; loyalty should be its worth offspring. The outward manifestation of one
or the other may for a time be prevented or thwarted by the irresistible action of the occupant; but this
should not in the least extinguish nor obliterate the invisible feelings, and promptings of the spirit. And
beyond the unavoidable consequences of the enemy's irresistible pressure, those invisible feelings and
promptings of the spirit of the people should never allow them to act, to speak, nor even to think a whit
contrary to their love and loyalty to the Fatherland. For them, indicted, to face their country and say to it
that, because when it was overrun and vanquished by the barbarous invader and, in consequence was
disabled from affording them protection, they were released from their sacred obligation of allegiance and
loyalty, and could therefore freely adhere to its enemy, giving him aid and comfort, incurring no criminal
responsibility therefor, would only tend to aggravate their crime.
II. CHANGE OF SOVEREIGNTY
Article II, section 1, of the Constitution provides that "Sovereignty resides in the people and all
government authority emanates from them." The Filipino people are the self-same people before and
after Philippine Independence, proclaimed on July 4, 1946. During the life of the Commonwealth
sovereignty resided in them under the Constitution; after the proclamation of independence that
sovereignty remained with them under the very same fundamental law. Article XVIII of the said
Constitution stipulates that the government established thereby shall be known as the Commonwealth of
the Philippines; and that upon the final and complete withdrawal of the sovereignty of the United States
and the proclamation of Philippine independence, "The Commonwealth of the Philippines shall
thenceforth be known as the Republic of the Philippines." Under this provision the Government of the
Philippines immediately prior to independence was essentially to be the identical government thereafter
— only the name of that government was to be changed.
Both before and after the adoption of the Philippine Constitution the people of the Philippines were and
are always the plaintiff in all criminal prosecutions, the case being entitled: "The People of the Philippines
vs. (the defendant or defendants)." This was already true in prosecutions under the Revised Penal Code
containing the law of treason. "The Government of the Philippines" spoken of in article 114 of said Code
merely represents the people of the Philippines. Said code was continued, along with the other laws, by
Article XVI, section 2, of the Constitution which constitutional provision further directs that "all references
in such laws to the Government or officials of the Philippine Islands shall be construed, in so far as
applicable, to refer to the Government and corresponding officials under this Constitution" — of course,
meaning the Commonwealth of the Philippines before, and the Republic of the Philippines after,
independence (Article XVIII). Under both governments sovereignty resided and resides in the people
(Article II, section 1). Said sovereignty was never transferred from that people — they are the same
people who preserve it to this day. There has never been any change in its respect.
If one committed treason againsts the People of the Philippines before July 4, 1946, he continues to be
criminally liable for the crime to the same people now. And if, following the literal wording of the Revised
Penal Code, as continued by the Constitution, that accused owed allegiance upon the commission of the
crime to the "Government of the Philippines," in the textual words of the Constitution (Article XVI, section
2, and XVIII) that was the same government which after independence became known as the "Republic
of the Philippines." The most that can be said is that the sovereignty of the people became complete and
absolute after independence — that they became, politically, fully of age, to use a metaphor. But if the
responsibility for a crime against a minor is not extinguished by the mere fact of his becoming of age, why
should the responsibility for the crime of treason committed against the Filipino people when they were
not fully politically independent be extinguished after they acquire this status? The offended party
continues to be the same — only his status has changed.

PARAS, J., dissenting:

During the long period of Japanese occupation, all the political laws of the Philippines were suspended.
This is full harmony with the generally accepted principles of the international law adopted by our
Constitution(Article II, section 3) as a part of the law of the Nation. Accordingly, we have on more than one
occasion already stated that "laws of a political nature or affecting political relations, . . . are considered as
suspended or in abeyance during the military occupation" (Co Kim Cham vs. Valdez Tan Keh and Dizon,
75 Phil., 113, 124), and that the rule "that laws of political nature or affecting political relations are
considered suspended or in abeyance during the military occupation, is intended for the governing of the
civil inhabitants of the occupied territory." (Ruffy vs. Chief of Staff, Philippine Army, 75, Phil., 875, 881.)
The principle is recognized by the United States of America, which admits that the occupant will naturally
suspends all laws of a political nature and all laws which affect the welfare and safety of his command,
such action to be made known to the inhabitants.(United States Rules of Land Welfare, 1940, Article 287.)
As allegiance to the United States is an essential element in the crime of treason under article 114 of the
Revised Penal Code, and in view of its position in our political structure prior to the independence of the
Philippines, the rule as interpreted and practiced in the United States necessarily has a binding force and
effect in the Philippines, to the exclusion of any other construction followed elsewhere, such as may be
inferred, rightly or wrongly, from the isolated cases 1 brought to our attention, which, moreover, have
entirely different factual bases.
Corresponding notice was given by the Japanese occupying army, first, in the proclamation of its
Commander in chief of January 2, 1942, to the effect that as a "result of the Japanese Military operations,
the sovereignty of the United States of America over the Philippines has completely disappeared and the
Army hereby proclaims the Military Administration under martial law over the district occupied by the Army;"
secondly, in Order No. 3 of the said Commander in Chief of February 20, 1942, providing that "activities of
the administrative organs and judicial courts in the Philippines shall be based upon the existing statutes,
orders, ordinances and customs until further orders provided that they are not inconsistent with the present
circumstances under the Japanese Military Administration;" and, thirdly, in the explanation to Order No. 3
reminding that "all laws and regulations of the Philippines has been suspended since Japanese
occupation," and excepting the application of "laws and regulations which are not proper act under the
present situation of the Japanese Military Administration," especially those "provided with some political
purposes."
The suspension of the political law during enemy occupation is logical, wise and humane. The latter phase
outweighs all other aspects of the principle aimed more or less at promoting the necessarily selfish motives
and purposes of a military occupant. It thus consoling to note that the powers instrumental in the
crystallization of the Hague Conventions of 1907 did not forget to declare that they were "animated by the
desire to serve . . . the interest of the humanity and the over progressive needs of civilization," and that "in
case not included in the Regulations adopted by them, the inhabitants and the belligerents remain under
the protection and the rule of the principles of international law, as they result from the usages established
among civilized peoples, from the laws of humanity, and the dictates of the public conscience." These
saving statements come to the aid of the inhabitants in the occupied territory in a situation wherein, even
before the belligerent occupant "takes a further step and by appropriate affirmative action undertakes to
acquire the right of sovereignty for himself, . . . the occupant is likely to regard to himself as clothed with
freedom to endeavor to impregnate the people who inhabit the area concerned with his own political
ideology, and to make that endeavor successful by various forms of pressure exerted upon enemy officials
who are permitted to retain the exercise of normal governmental functions." (Hyde, International Law, Vol.
III, Second Revised Edition, 1945, p. 1879.)
The inhabitants of the occupied territory should necessarily be bound to the sole authority of the invading
power, whose interest and requirements are naturally in conflict with those of the displaced government, if
it is legitimate for the military occupant to demand and enforce from the inhabitants such obedience as may
be necessary for the security of his forces, for the maintenance of law and order, and for the proper
administration of the country (United States Rules of Land Warfare, 1940, article 297), and to demand all
kinds of services "of such a nature as not to involve the population in the obligation of taking part in military
operations against their own country" (Hague Regulations, article 52);and if, as we have in effect said, by
the surrender the inhabitants pass under a temporary allegiance to the government of the occupant and
are bound by such laws, and such only, as it chooses to recognize and impose, and the belligerent occupant
`is totally independent of the constitution and the laws of the territory, since occupation is an aim of warfare,
and the maintenance and safety of his forces, and the purpose of war, stand in the foreground of his interest
and must be promoted under all circumstances or conditions." (Peralta vs. Director of Prisons, 75 Phil.,
285, 295), citing United States vs. Rice, 4 Wheaton, 246, and quoting Oppenheim, International Law, Vol.
II. Sixth Edition, Revised, 1944,p. 432.)
He would be a bigot who cannot or would refuse to see the cruel result if the people in an occupied territory
were required to obey two antagonistic and opposite powers. To emphasize our point, we would adopt the
argument, in a reverse order, of Mr. Justice Hilado in Peralta vs. Director of Prisons (75 Phil., 285, 358),
contained in the following passage:
To have bound those of our people who constituted the great majority who never submitted to the Japanese
oppressors, by the laws, regulations, processes and other acts of those two puppet governments, would
not only have been utterly unjust and downright illegal, but would have placed them in the absurd and
impossible condition of being simultaneously submitted to two mutually hostile governments, with their
respective constitutional and legislative enactments and institutions — on the one hand bound to continue
owing allegiance to the United States and the Commonwealth Government, and, on the other, to owe
allegiance, if only temporary, to Japan.
The only sensible purpose of the treason law — which is of political complexion and taken out of the
territorial law and penalized as a new offense committed against the belligerent occupant, incident to a
state of war and necessary for the control of the occupant (Alcantara vs. Director of Prisons, 75 Phil., 494),
— must be the preservation of the nation, certainly not its destruction or extermination. And yet the latter is
unwittingly wished by those who are fond of the theory that what is suspended is merely the exercise of
sovereignty by the de jure government or the latter's authority to impose penal sanctions or that, otherwise
stated, the suspension refers only to the military occupant. If this were to be the only effect, the rule would
be a meaningless and superfluous optical illusion, since it is obvious that the fleeing or displaced
government cannot, even if it should want, physically assert its authority in a territory actually beyond its
reach, and that the occupant, on the other hand, will not take the absurd step of prosecuting and punishing
the inhabitants for adhering to and aiding it. If we were to believe the opponents of the rule in question, we
have to accept the absurd proposition that the guerrillas can all be prosecuted with illegal possession of
firearms. It should be borne in the mind that "the possession by the belligerent occupant of the right to
control, maintain or modify the laws that are to obtain within the occupied area is an exclusive one. The
territorial sovereign driven therefrom, can not compete with it on an even plane. Thus, if the latter attempt
interference, its action is a mere manifestation of belligerent effort to weaken the enemy. It has no bearing
upon the legal quality of what the occupant exacts, while it retains control. Thus, if the absent territorial
sovereign, through some quasi-legislative decree, forbids its nationals to comply with what the occupant
has ordained obedience to such command within the occupied territory would not safeguard the individual
from the prosecution by the occupant." (Hyde, International Law, Vol. III, Second Revised Edition, 1945, p.
1886.)
As long as we have not outlawed the right of the belligerent occupant to prosecute and punish the
inhabitants for "war treason" or "war crimes," as an incident of the state of war and necessity for the control
of the occupied territory and the protection of the army of the occupant, against which prosecution and
punishment such inhabitants cannot obviously be protected by their native sovereign, it is hard to
understand how we can justly rule that they may at the same time be prosecuted and punished for an act
penalized by the Revised Penal Code, but already taken out of the territorial law and penalized as a new
offense committed against the belligerent occupant.
In Peralta vs. Director of Prisons, 75 Phil., 285, 296), we held that "the Constitution of the Commonwealth
Government was suspended during the occupation of the Philippines by the Japanese forces or the
belligerent occupant at regular war with the United States," and the meaning of the term "suspended" is
very plainly expressed in the following passage (page 298):
No objection can be set up to the legality of its provisions in the light of the precepts of our Commonwealth
Constitution relating to the rights of the accused under that Constitution, because the latter was not in force
during the period of the Japanese military occupation, as we have already stated. Nor may said Constitution
be applied upon its revival at the time of the re-occupation of the Philippines by the virtue of the priciple of
postliminium, because "a constitution should operate prospectively only, unless the words employed show
a clear intention that it should have a retrospective effect," (Cooley's Constitutional Limitations, seventh
edition, page 97, and a case quoted and cited in the foot-note), especially as regards laws of procedure
applied to cases already terminated completely.
In much the same way, we should hold that no treason could have been committed during the Japanese
military occupation against the United States or the Commonwealth Government, because article 114 of
the Revised Penal Code was not then in force. Nor may this penal provision be applied upon its revival at
the time of the reoccupation of the Philippines by virtue of the principle of postliminium, because of the
constitutional inhibition against any ex post facto law and because, under article 22 of the Revised Penal
Code, criminal laws shall have a retroactive effect only in so far as they favor the accused. Why did we
refuse to enforce the Constitution, more essential to sovereignty than article 114 of the Revised Penal Code
in the aforesaid of Peralta vs. Director of Prisons if, as alleged by the majority, the suspension was good
only as to the military occupant?
The decision in the United States vs. Rice (4 Wheaton, 246), conclusively supports our position. As
analyzed and described in United States vs. Reiter (27 Fed. Cas., 773), that case "was decided by the
Supreme Court of the United States — the court of highest human authority on that subject — and as the
decision was against the United States, and in favor of the authority of Great Britain, its enemy in the war,
and was made shortly after the occurrence of the war out of which it grew; and while no department of this
Government was inclined to magnify the rights of Great Britain or disparage those of its own government,
there can be no suspicion of bias in the mind of the court in favor of the conclusion at which it arrived, and
no doubt that the law seemed to the court to warrant and demand such a decision. That case grew out of
the war of 1812, between the United States and Great Britain. It appeared that in September, 1814, the
British forces had taken the port of Castine, in the State of Maine, and held it in military occupation; and
that while it was so held, foreign goods, by the laws of the United States subject to duty, had been
introduced into that port without paying duties to the United States. At the close of the war the place by
treaty restored to the United States, and after that was done Government of the United States sought to
recover from the persons so introducing the goods there while in possession of the British, the duties to
which by the laws of the United States, they would have been liable. The claim of the United States was
that its laws were properly in force there, although the place was at the time held by the British forces in
hostility to the United States, and the laws, therefore, could not at the time be enforced there; and that a
court of the United States (the power of that government there having since been restored) was bound so
to decide. But this illusion of the prosecuting officer there was dispelled by the court in the most summary
manner. Mr. Justice Story, that great luminary of the American bench, being the organ of the court in
delivering its opinion, said: 'The single question is whether goods imported into Castine during its
occupation by the enemy are liable to the duties imposed by the revenue laws upon goods imported into
the United States.. We are all of opinion that the claim for duties cannot be sustained. . . . The sovereignty
of the United States over the territory was, of course, suspended, and the laws of the United States could
no longer be rightfully enforced there, or be obligatory upon the inhabitants who remained and submitted
to the conquerors. By the surrender the inhabitants passed under a temporary allegiance of the British
Government, and were bound by such laws, and such only, as it chose to recognize and impose. From the
nature of the case no other laws could be obligatory upon them. . . . Castine was therefore, during this
period, as far as respected our revenue laws, to be deemed a foreign port, and goods imported into it by
the inhabitants were subjects to such duties only as the British Government chose to require. Such goods
were in no correct sense imported into the Unites States.' The court then proceeded to say, that the case
is the same as if the port of Castine had been foreign territory, ceded by treaty to the United States, and
the goods had been imported there previous to its cession. In this case they say there would be no pretense
to say that American duties could be demanded; and upon principles of public or municipal law, the cases
are not distinguishable. They add at the conclusion of the opinion: 'The authorities cited at the bar would, if
there were any doubt, be decisive of the question. But we think it too clear to require any aid from authority.'
Does this case leave room for a doubt whether a country held as this was in armed belligerents occupation,
is to be governed by him who holds it, and by him alone? Does it not so decide in terms as plain as can be
stated? It is asserted by the Supreme Court of the United States with entire unanimity, the great and
venerated Marshall presiding, and the erudite and accomplished Story delivering the opinion of the court,
that such is the law, and it is so adjudged in this case. Nay, more: it is even adjudged that no other laws
could be obligatory; that such country, so held, is for the purpose of the application of the law off its former
government to be deemed foreign territory, and that goods imported there (and by parity of reasoning other
acts done there) are in no correct sense done within the territory of its former sovereign, the United States."
But it is alleged by the majority that the sovereignty spoken of in the decision of the United States vs. Rice
should be construed to refer to the exercise of sovereignty, and that, if sovereignty itself was meant, the
doctrine has become obsolete after the adoption of the Hague Regulations in 1907. In answer, we may
state that sovereignty can have any important significance only when it may be exercised; and, to our way
of thinking, it is immaterial whether the thing held in abeyance is the sovereignty itself or its exercise,
because the point cannot nullify, vary, or otherwise vitiate the plain meaning of the doctrinal words "the
laws of the United States could no longer be rightfully enforced there, or be obligatory upon the inhabitants
who remained and submitted to the conquerors." We cannot accept the theory of the majority, without in
effect violating the rule of international law, hereinabove adverted to, that the possession by the belligerent
occupant of the right to control, maintain or modify the laws that are to obtain within the occupied area is
an exclusive one, and that the territorial sovereign driven therefrom cannot compete with it on an even
plane. Neither may the doctrine in the United States vs. Rice be said to have become obsolete, without
repudiating the actual rule prescribed and followed by the United States, allowing the military occupant to
suspend all laws of a political nature and even require public officials and inhabitants to take an oath of
fidelity (United States Rules of Land Warfare, 1940, article 309). In fact, it is a recognized doctrine of
American Constitutional Law that mere conquest or military occupation of a territory of another State does
not operate to annex such territory to occupying State, but that the inhabitants of the occupied district, no
longer receiving the protection of their native State, for the time being owe no allegiance to it, and, being
under the control and protection of the victorious power, owe to that power fealty and obedience.
(Willoughby, The Fundamental Concepts of Public Law [1931], p.364.)
The majority have resorted to distinctions, more apparent than real, if not immaterial, in trying to argue that
the law of treason was obligatory on the Filipinos during the Japanese occupation. Thus it is insisted that a
citizen or subject owes not a qualified and temporary, but an absolute and permanent allegiance, and that
"temporary allegiance" to the military occupant may be likened to the temporary allegiance which a foreigner
owes to the government or sovereign to the territory wherein he resides in return for the protection he
receives therefrom. The comparison is most unfortunate. Said foreigner is in the territory of a power not
hostile to or in actual war with his own government; he is in the territory of a power which has not suspended,
under the rules of international law, the laws of political nature of his own government; and the protections
received by him from that friendly or neutral power is real, not the kind of protection which the inhabitants
of an occupied territory can expect from a belligerent army. "It is but reasonable that States, when they
concede to other States the right to exercise jurisdiction over such of their own nationals as are within the
territorial limits of such other States, should insist that States should provide system of law and of courts,
and in actual practice, so administer them, as to furnish substantial legal justice to alien residents. This
does not mean that a State must or should extend to aliens within its borders all the civil, or much less, all
the political rights or privileges which it grants to its own citizens; but it does mean that aliens must or should
be given adequate opportunity to have such legal rights as are granted to them by the local law impartially
and judicially determined, and, when thus determined, protected." (Willoughby, The Fundamental Concepts
of Public Law [1931], p. 360.)
When it is therefore said that a citizen of a sovereign may be prosecuted for and convicted of treason
committed in a foreign country or, in the language of article 114 of the Revised Penal Code, "elsewhere," a
territory other than one under belligerent occupation must have been contemplated. This would make
sense, because treason is a crime "the direct or indirect purpose of which is the delivery, in whole or in part,
of the country to a foreign power, or to pave the way for the enemy to obtain dominion over the national
territory" (Albert, The Revised Penal Code, citing 3 Groizard, 14); and, very evidently, a territory already
under occupation can no longer be "delivered."
The majority likewise argue that the theory of suspended sovereignty or allegiance will enable the military
occupant to legally recruit the inhabitants to fight against their own government, without said inhabitants
being liable for treason. This argument is not correct, because the suspension does not exempt the
occupant from complying with the Hague Regulations (article 52) that allows it to demand all kinds of
services provided that they do not involve the population "in the obligation of taking part military operations
against their own country." Neither does the suspension prevent the inhabitants from assuming a passive
attitude, much less from dying and becoming heroes if compelled by the occupant to fight against their own
country. Any imperfection in the present state of international law should be corrected by such world agency
as the United Nations organizations.
It is of common knowledge that even with the alleged cooperation imputed to the collaborators, an alarming
number of Filipinos were killed or otherwise tortured by the ruthless, or we may say savage, Japanese
Army. Which leads to the conclusion that if the Filipinos did not obey the Japanese commands and feign
cooperation, there would not be any Filipino nation that could have been liberated. Assuming that the entire
population could go to and live in the mountains, or otherwise fight as guerrillas — after the formal surrender
of our and the American regular fighting forces, — they would have faced certain annihilation by the
Japanese, considering that the latter's military strength at the time and the long period during which they
were left military unmolested by America. In this connection, we hate to make reference to the atomic bomb
as a possible means of destruction.
If a substantial number of guerrillas were able to survive and ultimately help in the liberation of the
Philippines, it was because the feigned cooperation of their countrymen enabled them to get food and other
aid necessary in the resistance movement. If they were able to survive, it was because they could
camouflage themselves in the midst of the civilian population in cities and towns. It is easy to argue now
that the people could have merely followed their ordinary pursuits of life or otherwise be indifferent to the
occupant. The fundamental defect of this line of thought is that the Japanese assumed to be so stupid and
dumb as not to notice any such attitude. During belligerent occupation, "the outstanding fact to be reckoned
with is the sharp opposition between the inhabitants of the occupied areas and the hostile military force
exercising control over them. At heart they remain at war with each other. Fear for their own safety may not
serve to deter the inhabitants from taking advantage of opportunities to interfere with the safety and success
of the occupant, and in so doing they may arouse its passions and cause to take vengeance in cruel fashion.
Again, even when it is untainted by such conduct, the occupant as a means of attaining ultimate success
in its major conflict may, under plea of military necessity, and regardless of conventional or customary
prohibitions, proceed to utilize the inhabitants within its grip as a convenient means of military achievement."
(Hyde, International Law, Vol. III, Second Revised Edition [1945], p. 1912.) It should be stressed that the
Japanese occupation was not a matter of a few months; it extended over a little more than three years.
Said occupation was a fact, in spite of the "presence of guerrilla bands in barrios and mountains, and even
in towns of the Philippines whenever these towns were left by Japanese garrisons or by the detachments
of troops sent on patrol to those places." (Co Kim Cham vs. Valdez Tan Keh and Dizon, 75 Phil., 371, 373.)
The law of nations accepts belligerent occupation as a fact to be reckoned with, regardless of the merits of
the occupant's cause. (Hyde, International Law, Second Revised Edition [1945], Vol. III, p. 1879.)
Those who contend or fear that the doctrine herein adhere to will lead to an over-production of traitors, have
a wrong and low conception of the psychology and patriotism of their countrymen. Patriots are such after
their birth in the first place, and no amount of laws or judicial decisions can make or unmake them. On the
other hand, the Filipinos are not so base as to be insensitive to the thought that the real traitor is cursed
everywhere and in all ages. Our patriots who fought and died during the last war, and the brave guerrillas
who have survived, were undoubtedly motivated by their inborn love of country, and not by such a thing as
the treason law. The Filipino people as a whole, passively opposed the Japanese regime, not out of fear of
a treason statute but because they preferred and will prefer the democratic and civilized way of life and
American altruism to Japanese barbaric and totalitarian designs. Of course, there are those who might at
heart have been pro-Japanese; but they met and will unavoidably meet the necessary consequences. The
regular soldiers faced the risks of warfare; the spies and informers subjected themselves to the perils of
military operations, likely received summary liquidation or punishments from the guerrillas and the parties
injured by their acts, and may be prosecuted as war spies by the military authorities of the returning
sovereign; those who committed other common crimes, directly or through the Japanese army, may be
prosecuted under the municipal law, and under this group even the spies and informers, Makapili or
otherwise, are included, for they can be made answerable for any act offensive to person or property; the
buy-and-sell opportunists have the war profits tax to reckon with. We cannot close our eyes to the
conspicuous fact that, in the majority of cases, those responsible for the death of, or injury to, any Filipino
or American at the hands of the Japanese, were prompted more by personal motives than by a desire to
levy war against the United States or to adhere to the occupant. The alleged spies and informers found in
the Japanese occupation the royal road to vengeance against personal or political enemies. The recent
amnesty granted to the guerrillas for acts, otherwise criminal, committed in the furtherance of their
resistance movement has in a way legalized the penal sanctions imposed by them upon the real traitors.
It is only from a realistic, practical and common-sense point of view, and by remembering that the obedience
and cooperation of the Filipinos were effected while the Japanese were in complete control and occupation
of the Philippines, when their mere physical presence implied force and pressure — and not after the
American forces of liberation had restored the Philippine Government — that we will come to realize that,
apart from any rule of international law, it was necessary to release the Filipinos temporarily from the old
political tie in the sense indicated herein. Otherwise, one is prone to dismiss the reason for such cooperation
and obedience. If there were those who did not in any wise cooperate or obey, they can be counted by the
fingers, and let their names adorn the pages of Philippine history. Essentially, however, everybody who
took advantage, to any extent and degree, of the peace and order prevailing during the occupation, for the
safety and survival of himself and his family, gave aid and comfort to the enemy.
Our great liberator himself, General Douglas MacArthur, had considered the laws of the Philippines
ineffective during the occupation, and restored to their full vigor and force only after the liberation. Thus, in
his proclamation of October 23, 1944, he ordained that "the laws now existing on the statute books of the
Commonwealth of the Philippines . . . are in full force and effect and legally binding upon the people in
areas of the Philippines free of enemy occupation and control," and that "all laws . . . of any other
government in the Philippines than that of the said Commonwealth are null and void and without legal effect
in areas of the Philippines free of enemy occupation and control." Repeating what we have said in Co Kim
Cham vs. Valdez Tan Keh and Dizon (75 Phil., 113, 133), "it is to be presumed that General Douglas
MacArthur, who was acting as an agent or a representative of the Government and the President of the
United States, constitutional Commander-in-Chief of the United States Army, did not intend to act against
the principles of the law of nations asserted by the Supreme Court of the United States from the early period
of its existence, applied by the President of the United States, and later embodied in the Hague Conventions
of 1907."
The prohibition in the Hague Conventions (Article 45) against "any pressure on the population to take oath
to the hostile power," was inserted for the moral protection and benefit of the inhabitants, and does not
necessarily carry the implication that the latter continue to be bound to the political laws of the displaced
government. The United States, a signatory to the Hague Conventions, has made the point clear, by
admitting that the military occupant can suspend all the laws of a political nature and even require public
officials and the inhabitants to take an oath of fidelity (United States Rules of Land Warfare, 1940, article
309), and as already stated, it is a doctrine of American Constitutional Law that the inhabitants, no longer
receiving the protection of their native state, for the time being owe no allegiance to it, and, being under the
control and protection of the victorious power, owe to that power fealty and obedience. Indeed, what is
prohibited is the application of force by the occupant, from which it is fair to deduce that the Conventions
do not altogether outlaw voluntary submission by the population. The only strong reason for this is
undoubtedly the desire of the authors of the Conventions to give as much freedom and allowance to the
inhabitants as are necessary for their survival. This is wise and humane, because the people should be in
a better position to know what will save them during the military occupation than any exile government.
"Before he was appointed prosecutor, Justice Jackson made a speech in which he warned against the use
of judicial process for non judicial ends, and attacked cynics who "see no reason why courts, just like other
agencies, should not be policy weapons. If we want to shoot Germans as a matter of policy, let it be done
as such, said he, but don't hide the deed behind a court. If you are determined to execute a man in any
case there is no occasion for a trial; the word yields no respect for courts that are merely organized to
convict." Mussoloni may have got his just desserts, but nobody supposes he got a fair trial. . . . Let us bear
that in mind as we go about punishing criminals. There are enough laws on the books to convict guilty Nazis
without risking the prestige of our legal system. It is far, far better that some guilty men escape than that
the idea of law be endangered. In the long run the idea of law is our best defense against Nazism in all its
forms." These passages were taken from the editorial appearing in the Life, May 28, 1945, page 34, and
convey ideas worthy of some reflection.
If the Filipinos in fact committed any errors in feigning cooperation and obedience during the Japanese
military occupation, they were at most — borrowing the famous and significant words of President Roxas
— errors of the mind and not of the heart. We advisedly said "feigning" not as an admission of the fallacy
of the theory of suspended allegiance or sovereignty, but as an affirmation that the Filipinos, contrary to
their outward attitude, had always remained loyal by feeling and conscience to their country.
Assuming that article 114 of the Revised Penal Code was in force during the Japanese military occupation,
the present Republic of the Philippines has no right to prosecute treason committed against the former
sovereignty existing during the Commonwealth Government which was none other than the sovereignty of
the United States. This court has already held that, upon a change of sovereignty, the provisions of the
Penal Code having to do with such subjects as treason, rebellion and sedition are no longer in force (People
vs. Perfecto, 43 Phil., 887). It is true that, as contended by the majority, section 1 of Article II of the
Constitution of the Philippines provides that "sovereignty resides in the people," but this did not make the
Commonwealth Government or the Filipino people sovereign, because said declaration of principle, prior
to the independence of the Philippines, was subervient to and controlled by the Ordinance appended to the
Constitution under which, in addition to its many provisions essentially destructive of the concept of
sovereignty, it is expressly made clear that the sovereignty of the United States over the Philippines had
not then been withdrawn. The framers of the Constitution had to make said declaration of principle because
the document was ultimately intended for the independent Philippines. Otherwise, the Preamble should not
have announced that one of the purposes of the Constitution is to secure to the Filipino people and their
posterity the "blessings of independence." No one, we suppose, will dare allege that the Philippines was
an independent country under the Commonwealth Government.
The Commonwealth Government might have been more autonomous than that existing under the Jones
Law, but its non-sovereign status nevertheless remained unaltered; and what was enjoyed was the exercise
of sovereignty over the Philippines continued to be complete.
The exercise of Sovereignty May be Delegated. — It has already been seen that the exercise of sovereignty
is conceived of as delegated by a State to the various organs which, collectively, constitute the Government.
For practical political reasons which can be easily appreciated, it is desirable that the public policies of a
State should be formulated and executed by governmental agencies of its own creation and which are not
subject to the control of other States. There is, however, nothing in a nature of sovereignty or of State life
which prevents one State from entrusting the exercise of certain powers to the governmental agencies of
another State. Theoretically, indeed, a sovereign State may go to any extent in the delegation of the
exercise of its power to the governmental agencies of other States, those governmental agencies thus
becoming quoad hoc parts of the governmental machinery of the State whose sovereignty is exercised. At
the same time these agencies do not cease to be Instrumentalities for the expression of the will of the State
by which they were originally created.
By this allegation the agent State is authorized to express the will of the delegating State, and the legal
hypothesis is that this State possesses the legal competence again to draw to itself the exercise, through
organs of its own creation, of the powers it has granted. Thus, States may concede to colonies almost
complete autonomy of government and reserve to themselves a right of control of so slight and so negative
a character as to make its exercise a rare and improbable occurence; yet, so long as such right of control
is recognized to exist, and the autonomy of the colonies is conceded to be founded upon a grant and the
continuing consent of the mother countries the sovereignty of those mother countries over them is complete
and they are to be considered as possessing only administrative autonomy and not political independence.
Again, as will be more fully discussed in a later chapter, in the so-called Confederate or Composite State,
the cooperating States may yield to the central Government the exercise of almost all of their powers of
Government and yet retain their several sovereignties. Or, on the other hand, a State may, without parting
with its sovereignty of lessening its territorial application, yield to the governing organs of particular areas
such an amplitude of powers as to create of them bodies-politic endowed with almost all of the
characteristics of independent States. In all States, indeed, when of any considerable size, efficiency of
administration demands that certain autonomous powers of local self-government be granted to particular
districts. (Willoughby, The Fundamental Concepts of Public Law [1931], pp. 74, 75.).
The majority have drawn an analogy between the Commonwealth Government and the States of the
American Union which, it is alleged, preserve their own sovereignty although limited by the United States.
This is not true for it has been authoritatively stated that the Constituent States have no sovereignty of their
own, that such autonomous powers as they now possess are had and exercised by the express will or by
the constitutional forbearance of the national sovereignty, and that the sovereignty of the United States and
the non-sovereign status of the individual States is no longer contested.
It is therefore plain that the constituent States have no sovereignty of their own, and that such autonomous
powers as they now possess are had and exercised by the express will or by the constitutional forbearance
of the national sovereignty. The Supreme Court of the United States has held that, even when selecting
members for the national legislature, or electing the President, or ratifying proposed amendments to the
federal constitution, the States act, ad hoc, as agents of the National Government. (Willoughby, the
Fundamental Concepts of Public Law [1931], p.250.)
This is the situation at the present time. The sovereignty of the United States and the non-sovereign status
of the individual States is no longer contested. (Willoughby, The Fundamental Concepts of Public Law
[1931], pp. 251, 252.)
Article XVIII of the Constitution provides that "The government established by this Constitution shall be
known as the Commonwealth of the Philippines. Upon the final and complete withdrawal of the sovereignty
of the United States and the proclamation of Philippine independence, the Commonwealth of the Philippines
shall thenceforth be known as the Republic of the Philippines." From this, the deduction is made that the
Government under the Republic of the Philippines and under the Commonwealth is the same. We cannot
agree. While the Commonwealth Government possessed administrative autonomy and exercised the
sovereignty delegated by the United States and did not cease to be an instrumentality of the latter
(Willoughby, The Fundamental Concepts of Public Law [1931], pp. 74, 75), the Republic of the Philippines
is an independent State not receiving its power or sovereignty from the United States. Treason committed
against the United States or against its instrumentality, the Commonwealth Government, which exercised,
but did not possess, sovereignty (id., p. 49), is therefore not treason against the sovereign and independent
Republic of the Philippines. Article XVIII was inserted in order, merely, to make the Constitution applicable
to the Republic.
Reliance is also placed on section 2 of the Constitution which provides that all laws of the Philippines Islands
shall remain operative, unless inconsistent therewith, until amended, altered, modified or repealed by the
Congress of the Philippines, and on section 3 which is to the effect that all cases pending in courts shall be
heard, tried, and determined under the laws then in force, thereby insinuating that these constitutional
provisions authorize the Republic of the Philippines to enforce article 114 of the Revised Penal Code. The
error is obvious. The latter article can remain operative under the present regime if it is not inconsistent with
the Constitution. The fact remains, however, that said penal provision is fundamentally incompatible with
the Constitution, in that those liable for treason thereunder should owe allegiance to the United States or
the government of the Philippines, the latter being, as we have already pointed out, a mere instrumentality
of the former, whereas under the Constitution of the present Republic, the citizens of the Philippines do not
and are not required to owe allegiance to the United States. To contend that article 114 must be deemed
to have been modified in the sense that allegiance to the United States is deleted, and, as thus modified,
should be applied to prior acts, would be to sanction the enactment and application of an ex post facto law.
In reply to the contention of the respondent that the Supreme Court of the United States has held in the
case of Bradford vs. Chase National Bank (24 Fed. Supp., 38), that the Philippines had a sovereign status,
though with restrictions, it is sufficient to state that said case must be taken in the light of a subsequent
decision of the same court in Cincinnati Soap Co. vs. United States (301 U.S., 308), rendered in May, 1937,
wherein it was affirmed that the sovereignty of the United States over the Philippines had not been
withdrawn, with the result that the earlier case only be interpreted to refer to the exercise of sovereignty by
the Philippines as delegated by the mother country, the United States.
No conclusiveness may be conceded to the statement of President Roosevelt on August 12, 1943, that "the
United States in practice regards the Philippines as having now the status as a government of other
independent nations--in fact all the attributes of complete and respected nationhood," since said statement
was not meant as having accelerated the date, much less as a formal proclamation of, the Philippine
Independence as contemplated in the Tydings-McDuffie Law, it appearing that (1) no less also than the
President of the United States had to issue the proclamation of July 4, 1946, withdrawing the sovereignty
of the United States and recognizing Philippine Independence; (2) it was General MacArthur, and not
President Osmeña who was with him, that proclaimed on October 23, 1944, the restoration of the
Commonwealth Government; (3) the Philippines was not given official participation in the signing of the
Japanese surrender; (4) the United States Congress, and not the Commonwealth Government, extended
the tenure of office of the President and Vice-President of the Philippines.
The suggestion that as treason may be committed against the Federal as well as against the State
Government, in the same way treason may have been committed against the sovereignty of the United
States as well as against the sovereignty of the Philippine Commonwealth, is immaterial because, as we
have already explained, treason against either is not and cannot be treason against the new and different
sovereignty of the Republic of the Philippines.

LAWYERS LEAGUE FOR A BETTER PHILIPPINES vs. AQUINO

(G.R. No. 73748 - May 22, 1986)
------------------------
(There is no "Full-Text" of this case. This is a Minute Resolution made by the SC.)
Minute Resolutions

EN BANC

[G.R. No. 73748, May 22, 1986]

LAWYERS LEAGUE FOR A BETTER PHILIPPINES AND/OR OLIVER A. LOZANO VS. PRESIDENT
CORAZON C. AQUINO, ET AL.
SIRS/MESDAMES:

Quoted hereunder, for your information, is a resolution of this Court MAY 22, 1986.

In G.R. No. 73748, Lawyers League for a Better Philippines vs. President Corazon C. Aquino, et al.; G.R.
No. 73972, People's Crusade for Supremacy of the Constitution vs. Mrs. Cory Aquino, et al., and G.R.
No. 73990, Councilor Clifton U. Ganay vs. Corazon C. Aquino, et al., the legitimacy of the government of
President Aquino is questioned. It is claimed that her government is illegal because it was not established
pursuant to the 1973 Constitution.

As early as April 10, 1986, this Court* had already voted to dismiss the petitions for the reasons to
be stated below. On April 17, 1986, Atty. Lozano as counsel for the petitioners in G.R. Nos. 73748
and 73972 withdrew the petitions and manifested that they would pursue the question by extra-
judicial methods. The withdrawal is functus oficio.

The three petitions obviously are not impressed with merit. Petitioners have no personality to sue and
their petitions state no cause of action. For the legitimacy of the Aquino government is not a justiciable
matter. It belongs to the realm of politics where only the people of the Philippines are the judge. And the
people have made the judgment; they have accepted the government of President Corazon C. Aquino
which is in effective control of the entire country so that it is not merely a de factogovernment but is in fact
and law a de jure government. Moreover, the community of nations has recognized the legitimacy of the
present government. All the eleven members of this Court, as reorganized, have sworn to uphold the
fundamental law of the Republic under her government.

In view of the foregoing, the petitions are hereby dismissed.

Very truly yours,

(Sgd.) GLORIA C. PARAS

Clerk of Court

* The Court was then composed of Teehankee, C.J. and Abad Santos., Melencio-Herrera, Plana, Escolin,
Gutierrez, Jr., Cuevas, Alampay and Patajo, JJ.------------------------------------------On March 25, 1986,
proclamation No.3 was issued providing the basis of the Aquino government assumption of power by
stating that the "new government was installed through a direct exercise of the power of the Filipino
people assisted by units of the New Armed Forces of the Philippines."

ISSUE:
Whether or not the government of Corazon Aquino is legitimate.

HELD:
Yes. The legitimacy of the Aquino government is not a justiciable matter but belongs to the realm of
politics where only the people are the judge.

The Court further held that:

The people have accepted the Aquino government which is in effective control of the entire country;
It is not merely a de facto government but in fact and law a de jure government; and
The community of nations has recognized the legitimacy of the new government.

The People of the Philippine Islands v Gregorio Perfecto 43 Phil 887

Procedure and Facts:
On August 20, 1920, the Secretary of the Philippine Senate, Fernando M. Guerrero
discovered that some vital records which constituted testimonies of witnesses for the
investigation of oil companies were missing. On September 7, 1920, the newspaper, La
Nacion, edited by Mr. Gregorio Perfecto published an editorial accusing the Philippine
Senate for the loss of the said of records. On September 15, 1920, the Senate adopted
the resolution thereby authorizing the President of the Senate to indorse to the Attorney-
General, for his study and corresponding action, all the papers referring to the case of
the newspaper
La Nacion
and its editor, Mr. Gregorio Perfecto. An information was then
filed in the municipal court of the City of Manila by an assistant city fiscal, in which the
editorial in question was set out and in which it was alleged that the same constituted a
violation of article 256 of the Penal Code. The defendant Gregorio Perfecto was found
guilty in the municipal court and again in the Court of First Instance of Manila.
Legal Issues:
Is Article 256 of the Spanish Penal Code still enforceable?
Holding:
Article 256 of the Spanish Penal Code reads as follows, "Any person who, by word,
deed, or writing, shall defame, abuse, or insult
any Minister of the Crown or other
person in authority
, while engaged in the performance of official duties, or by reason of
such performance, provided that the offensive minister or person, or the offensive
writing be not addressed to him, shall suffer the penalty of
arresto mayor
’. This old
provision sought to protect the Ministers of the Crown and other representatives of the
King against free speech and action by Spanish subjects.
Section 1 of the Philippine Libel Law, Act No. 277 however, defines libel as a "malicious
defamation, expressed either in writing, printing, or by signs or pictures, or the like, or
public theatrical exhibitions, tending to blacken the memory of one who is dead or to
impeach the honesty, virtue, or reputation, or publish the alleged or natural deffects of
one who is alive, and thereby expose him to public hatred, contempt or ridicule." Upon
enactment of the said law,it has had an repealing effect on Article 256 of the Spanish
Penal Code. Thus, the defendant can no longer be convicted for violating the said
article.

Reasons for the Decision:

Three members of the court believe that Article 256 has been abrogated completely by
the change from Spanish to American sovereignty over the Philippines, rendering it
inconsistent with democratic principles of government. Article 256 of the Penal Code is
goes against fundamental principles of the American system of government. This article
was crowded out by implication as soon as the United States established its authority in
the Philippine Islands
Concurring and Dissenting Opinions:
Chief Justice Araullo concurs with the acquittal of the accused as he maintains that the
facts alleged in the information do not constitute a violation of Article 256 of the Spanish
Penal Code. Furthermore, he maintains that the said provision has been repealed by
the Libel Law.
Justice Romualdez concurs with the acquittal of the accused for the reason that the
information failed to reveal the accused’s liability either under Article 256 of the Penal
Code or the Libel Law. However, he is of the opinion that Article 256 of the Penal Code
is still in force, except as it refers to "Ministers of the Crown," which no longer applies in
our Government, and to calumny,
injuria
, or insult, by writing or printing, committed
against an authority in the performance of his duties or by reason thereof, which portion
was repealed by the Libel Law.
Significance of the Decision
“
It is a general principle of the public law that upon acquisition of territory, the previous
political relations of the ceded region are totally abrogated."Political" is here used to
denominate the laws regulating the relations sustained by the inhabitants to the
sovereign. Thus, upon a cession of political jurisdiction and legislative power
—

the laws
of the country
in support of an established religion or
abridging the freedom of the
press
, or authorizing cruel and unusual punishments,
and the like, would at once cease
to be of obligatory force
without any declaration to that effect.
”

G.R. No. 183591 October 14 2008

Province of North Cotabato vs Government of the Republic of the Philippines

FACTS:
On August 5, 2008, the Government of the Republic of the Philippines and the Moro Islamic Liberation
Front (MILF) were scheduled to sign a Memorandum of Agreement of the Ancestral Domain Aspect of
the GRP - MILF Tripoli Agreement on Peace of 2001 in Kuala Lumpur, Malaysia.
Invoking the right to information on matters of public concern, the petitioners seek to compel
respondents to disclose and furnish them the complete and official copies of the MA-AD and to prohibit
the slated signing of the MOA-AD and the holding of public consultation thereon. They also pray that
the MOA-AD be declared unconstitutional. The Court issued a TRO enjoining the GRP from signing the
same.

ISSUES:
1. Whether or not the constitutionality and the legality of the MOA is ripe for adjudication;
2. Whether or not there is a violation of the people's right to information on matters of public concern
(Art 3 Sec. 7) under a state policy of full disclosure of all its transactions involving public interest (Art
2, Sec 28) including public consultation under RA 7160 (Local Government Code of 1991)
3. Whether or not the signing of 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)

RULINGS:
1. Yes, the petitions are ripe for adjudication. The failure of the respondents to consult the local
government units or communities affected constitutes a departure by respondents from their mandate
under EO No. 3. Moreover, the 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.
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
xxx
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.
That the law or act in question is not yet effective does not negate ripeness.

2. Yes. The Court finds that there is a grave violation of the Constitution involved in the matters of
public concern (Sec 7 Art III) under a state policy of full disclosure of all its transactions involving
public interest (Art 2, Sec 28) including public consultation under RA 7160 (Local Government Code of
1991).
(Sec 7 ArtIII) The right to information guarantees the right of the people to demand information, while
Sec 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.
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.

3.
a) to create and recognize the Bangsamoro Juridical Entity (BJE) as a separate state, or a juridical,
territorial or political subdivision not recognized by law;
Yes. The provisions of the MOA indicate, among other things, that the Parties aimed to vest in the
BJE the status of an associated state or, at any rate, a status closely approximating it.
The concept of association is not recognized under the present Constitution.

No province, city, or municipality, not even the ARMM, is recognized under our laws as having an
“associative” relationship with the national 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.

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.
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.

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

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 .

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

The “suspensive clause” in the MOA-AD viewed in light of the 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.

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)
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.

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.

Two, Republic Act No. 7160 or the Local Government Code of 1991 requires all national offices to
conduct consultations beforeany project or program critical to the environment and human ecology
including those that may call for the eviction of a particular group of people residing in such locality, is
implemented therein. The MOA-AD is one peculiar 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.

CONCLUSION:
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.

MAGALLONA v. ERMITA, G.R. 187167, August 16, 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 2009, it was again amended by R.A. 9522, to be compliant with the UNCLOS III of 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’.
Petitioner now assails the constitutionality of the law for three main reasons:
1. it reduces the Philippine maritime territory under Article 1;
2. it opens the country’s waters to innocent and sea lanes passages hence undermining our sovereignty
and security; and
3. treating KIG and Scarborough as ‘regime of islands’ would weaken our claim over those territories.
Issue: Whether R.A. 9522 is constitutional?
Ruling:
1. UNCLOS III has nothing to do with acquisition or loss of territory. it is just a codified norm that regulates
conduct of States. On the other hand, RA 9522 is a baseline law to mark out basepoints along coasts,
serving as geographic starting points to measure. it merely notices the international community of the
scope of our maritime space.
2. 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.
3. On the KIG issue, RA 9522 merely followed the basepoints mapped by RA 3046 and in fact, it
increased the Phils.’ total maritime space. Moreover, the itself commits the Phils.’ 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.

Laurel vs. Misa Digested

Laurel vs. Misa

77 Phil. 856

FACTS:

The accused was charged with treason. During the Japanese occupation, theaccusedadhered to the enemy
by giving the latter aid and comfort. He claims that hecannot be tried fortreason since his allegiance to the
Philippines was suspended at that time. Also, he claims that he cannot be tried under a change of
sovereignty over the country since his acts were against the Commonwealth which was replaced already
by the Republic.

Issue: whether the petitioner is subject to article 114 of the RPC

HELD/RATIO: The accused was found guilty. A citizen owes absolute and permanentallegiance tohis
government or sovereign. No transfer of sovereignty was made; hence, it ispresumed that thePhilippine
government still had the power. Moreover, sovereignty cannot besuspended; it is eithersubsisting or
eliminated and replaced. Sovereignty per se wasn’t suspended; rather,it was theexercise of sovereignty
that was suspended. Thus, there is no suspendedallegiance. Regarding thechange of government, there is
no such change since the sovereign – the Filipinopeople – is still thesame. What happened was a mere
change of name of government, fromCommonwealth to theRepublic of the Philippines.DISSENT: During
the long period of Japanese occupation, all the political laws of thePhilippineswere suspended. Thus,
treason under the Revised Penal Code cannot be punishablewhere the lawsof the land are momentarily
halted. Regarding the change of sovereignty, it is true that the Philippines wasn’t sovereign at the time of
the Commonwealth since it was underthe United States. Hence, the acts of treason done cannot carry over
to the new Republicwhere thePhilippines is now indeed sovereign.