G.R No. 187167               August 16, 2011
3046 (RA 3046)2 demarcating
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.
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

Extent of maritime
area using RA 3046, Extent of maritime
as amended, taking area using RA 9522,
  into account the taking into account
Treaty of Paris’ UNCLOS III (in
delimitation (in square nautical miles)
square nautical miles)
Internal or
archipelagic
waters 166,858 171,435
Territorial Sea 274,136 32,106
Exclusive
Economic Zone   382,669
TOTAL 440,994 586,210

Thus, as the map below shows, the reach of the exclusive economic zone
drawn under RA 9522 even extends way beyond the waters covered by the
rectangular demarcation under the Treaty of Paris. Of course, where there
are overlapping exclusive economic zones of opposite or adjacent States,
there will have to be a delineation of maritime boundaries in accordance with
UNCLOS III.30

Further, petitioners’ argument that the KIG now lies outside Philippine
territory because the baselines that RA 9522 draws do not enclose the KIG is
negated by RA 9522 itself. Section 2 of the law commits to text the
Philippines’ continued claim of sovereignty and jurisdiction over the KIG and
the Scarborough Shoal:
SEC. 2. The baselines in the following areas over which the Philippines
likewise exercises sovereignty and jurisdiction shall be determined as
"Regime of Islands" under the Republic of the Philippines consistent with
Article 121 of the United Nations Convention on the Law of the Sea
(UNCLOS):
a) The Kalayaan Island Group as constituted under Presidential
Decree No. 1596 and
b) Bajo de Masinloc, also known as Scarborough Shoal. (Emphasis
supplied)
Had Congress in RA 9522 enclosed the KIG and the Scarborough Shoal as
part of the Philippine archipelago, adverse legal effects would have ensued.
The Philippines would have committed a breach of two provisions of
UNCLOS III. First, Article 47 (3) of UNCLOS III requires that "[t]he drawing of
such baselines shall not depart to any appreciable extent from the general
configuration of the archipelago." Second, Article 47 (2) of UNCLOS III
requires that "the length of the baselines shall not exceed 100 nautical
miles," save for three per cent (3%) of the total number of baselines which
can reach up to 125 nautical miles.31
Although the Philippines has consistently claimed sovereignty over the
KIG32 and the Scarborough Shoal for several decades, these outlying areas
are located at an appreciable distance from the nearest shoreline of the
Philippine archipelago,33 such that any straight baseline loped around them
from the nearest basepoint will inevitably "depart to an appreciable extent
from the general configuration of the archipelago."
The principal sponsor of RA 9522 in the Senate, Senator Miriam Defensor-
Santiago, took pains to emphasize the foregoing during the Senate
deliberations:
What we call the Kalayaan Island Group or what the rest of the world call[]
the Spratlys and the Scarborough Shoal are outside our archipelagic
baseline because if we put them inside our baselines we might be accused
of violating the provision of international law which states: "The drawing of
such baseline shall not depart to any appreciable extent from the general
configuration of the archipelago." So sa loob ng ating baseline, dapat
magkalapit ang mga islands. Dahil malayo ang Scarborough Shoal, hindi
natin masasabing malapit sila sa atin although we are still allowed by
international law to claim them as our own.
This is called contested islands outside our configuration. We see that our
archipelago is defined by the orange line which [we] call[] archipelagic
baseline. Ngayon, tingnan ninyo ang maliit na circle doon sa itaas, that is
Scarborough Shoal, itong malaking circle sa ibaba, that is Kalayaan Group or
the Spratlys. Malayo na sila sa ating archipelago kaya kung ilihis pa natin
ang dating archipelagic baselines para lamang masama itong dalawang
circles, hindi na sila magkalapit at baka hindi na tatanggapin ng United
Nations because of the rule that it should follow the natural configuration of
the archipelago.34 (Emphasis supplied)
Similarly, the length of one baseline that RA 3046 drew exceeded UNCLOS
III’s limits.  The need to shorten this baseline, and in addition, to optimize the
1avvphi1
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. 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, v. 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, Respondent.
PUNO, C.J.:
It is the duty of the government to seek a just, comprehensive and
enduring peace with any rebel group but the search for peace must
always be in accord with the Constitution. Any search for peace
that undercuts the Constitution must be struck down. Peace in
breach of the Constitution is worse than worthless.
I. Historical Roots
A historical perspective of our Muslim problem is helpful.
From time immemorial, an enduring peace with our Muslim
brothers and sisters in Mindanao has eluded our grasp. Our Muslim
problem exploded in March of 1968 when Muslim trainees were
massacred by army officers at Corregidor. About 180 Muslim
trainees had been recruited in the previous year as a part of a
covert force named Jabidah,1 allegedly formed to wrest away
Sabah from Malaysia. The trainees were massacred when they
reportedly protested their unbearable training and demanded the
return to their home.2 The Jabidah Massacre fomented the
formation of Muslim groups clamoring for a separate Islamic state.
One of these groups was the Muslim Independence Movement
(MIM), founded by the then Governor of Cotabato, Datu Udtog
Matalam.3 Another was the Nurul Islam, led by Hashim Salamat.
On September 21, 1972 Martial Law was declared by President
Ferdinand E. Marcos. Among the reasons cited to justify martial law
were the armed conflict between Muslims and Christians and the
Muslim secessionist movement in the Southern Philippines.4 The
imposition of martial law drove some of the Muslim secessionist
movements to the underground. One of them was the Moro
National Liberation Front (MNLF) headed by Nur Misuari. In 1974,
the MNLF shot to prominence, when the Organization of Islamic
Conference (OIC) officially gave it recognition. During the 5th ICFM,
they strongly urged "the Philippines Government to find a political
and peaceful solution through negotiation with Muslim leaders,
particularly with representatives of the MNLF in order to arrive at a
just solution to the plight of the Filipino Muslims within the
framework of national sovereignty and territorial integrity of the
Philippines"; and recognized "the problem as an internal problem
with the Philippine Government to ensure the safety of the Filipino
Muslims and the preservation of their liberties in accordance with
the Universal Declaration of Human Rights."5
In December 1976, the Philippine government and the MNLF under
the auspices of the OIC started their peace negotiation in Tripoli,
Libya. It bore its first fruit when on January 20, 1977, the parties
signed the Tripoli Agreement in Zamboanga City in the presence of
the OIC Representative.
President Marcos immediately implemented the Tripoli Agreement.
He issued Presidential Proclamation No. 1628, "Declaring
Autonomy in Southern Philippines." A plebiscite was conducted in
the provinces covered under the Tripoli Agreement to determine
the will of the people thereat. Further, the legislature enacted
Batasang Pambansa Blg. 20, "Providing for the Organization of
Sangguniang Pampook (Regional Legislative Assembly) in Each of
Regions IX and XII." President Marcos then ordered the creation of
Autonomous Region IX and XII.
In the meanwhile, the MNLF continued enhancing its international
status. It was accorded the status of an observer in Tripoli, Libya
during the 8th ICFM. In the 15th ICFM at Sana'a, Yemen, in 1984,
the MNLF's status was further elevated from a mere 'legitimate
representative' to 'sole legitimate representative' of the
Bangsamoro people.6
In April 1977, the peace talks between the Government of the
Republic of the Philippines (GRP) and MNLF Talks collapsed. Schism
split the MNLF leadership. The irreconcilable differences
between Nur Misuari and Hashim Salamat led to the
formation of the Moro Islamic Liberation Front (MILF),
headed by Hashim Salamat. Thus, the Maguindanao-led MILF,
parted ways with the Tausug-led MNLF.
In 1986, the People Power Revolution catapulted Corazon C.
Aquino to the Presidency. Forthwith, she ordered the peace talks
with the MNLF to resume. The 1987 Constitution was ratified by
the people. It provided for the creation of the Autonomous Region
of Muslim Mindanao through an act of Congress. But again the
talks with the MNLF floundered in May 1987.7 Be that as it may, it
was during President Aquino's governance that a culture of peace
negotiations with the rebellious MNLF and MILF was
cultivated.8 Thus, the Autonomous Region of Muslim Mindanao
(ARMM) was created through Republic Act No. 6734. The law took
effect on August 1, 1989.
Then came the presidency of President Fidel V. Ramos. He issued
on September 15, 1993, Executive Order No., 125 (E.O. 125)
which provided for a comprehensive, integrated and holistic peace
process with the Muslim rebels. E.O. 125 created the Office of the
Presidential Adviser on the Peace Process to give momentum to the
peace talks with the MNLF.
In 1996, as the GRP-MNLF peace negotiations were successfully
winding down, the government prepared to deal with the MILF
problem. Formal peace talks started on January of 1997, towards
the end of the Ramos administration. The Buldon Ceasefire
Agreement was signed in July 19979 but time ran out for the
negotiations to be completed.
President Joseph Estrada continued the peace talks with the MILF.
The talks, however, were limited to cessation of hostilities and did
not gain any headway. President Estrada gave both sides until
December 1999 to finish the peace process.10 They did not meet
the deadline. The year 2000 saw the escalation of acts of violence
and the threats to the lives and security of civilians in Southern
Mindanao. President Estrada then declared an "all-out war" against
the MILF.11 He bowed out of office with the "war" unfinished.
Thereafter, President Gloria Macapagal Arroyo assumed office.
Peace negotiations with the MILF were immediately set for
resumption. Executive Order No. 3, was issued "Defining Policy and
Administrative Structure: For Government's Comprehensive Peace
Efforts." On March 24, 2001, a General Framework for the
Resumption of Peace Talks between the GRP and the MILF was
signed. Republic Act No. 905412 was also enacted on March 31,
2001 and took effect on August 14, 2001 to strengthen and expand
the Autonomous Region of Muslim Mindanao. Through the Organic
Act of 2001, six municipalities in Lanao del Norte voted for
inclusion in the ARMM.
On June 22, 2001, the ancestral domain aspect of the GRP-MILF
Tripoli Agreement was signed in Libya. Several rounds of
exploratory talks with the MILF followed. Unfortunately, on April 2,
2003, Davao was twice bombed. Again, the peace talks were
cancelled and fighting with the MILF resumed. On July 19, 2003
the GRP and the MILF agreed on "mutual cessation of hostilities"
and the parties returned to the bargaining table. The parties
discussed the problem of ancestral domain, divided into four
strands: concept, territory, resources, and governance.
On February 7, 2006, the 10th round of Exploratory Talks between
the GRP and the MILF ended. The parties issued a joint statement
of the consensus points of the Ancestral Domain aspect of GRP-
MILF Tripoli Agreement on Peace of June 22, 2001. The Joint
Statement provides that:
"Among the consensus points reached were:
'Joint determination of the scope of the Bangsamoro homeland
based on the technical maps and data submitted by both sides;
'Measures to address the legitimate grievances of the Bangsamoro
people arising from the unjust dispossession and/or
marginalization;
'Bangsamoro people's right to utilize and develop their ancestral
domain and ancestral lands;
'Economic cooperation arrangements for the benefit of the entire
Bangsamoro people."
On July 27, 2008, a Joint Statement on the Memorandum of
Agreement on Ancestral Domain (MOA-AD) was signed by
Chairperson Rodolfo C. Garcia on behalf of the GRP Peace Panel,
and Mohagher Iqbal on behalf of the MILF Panel. In the Joint
Statement, it was declared that the final draft of the MOA-AD has
already been initialed. It was announced that "both sides reached
a consensus to initial the final draft pending its official signing by
the Chairmen of the two peace panels in early August 2008, in
Putrajaya, Malaysia."13
The Joint Statement triggered the filing of the petitions at bar.
These Petitions, sought among others, to restrain the signing of the
MOA-AD. On August 4, 2008, a day before the intended signing of
the initialed MOA-AD, this Court issued a Temporary Restraining
Order stopping the signing of the MOA-AD. Several petitions-in-
intervention were also filed praying for the same relief. On August
8, 2008 and September 1, 2008, the respondents through the
Solicitor General, submitted official copies of the initialed MOA-AD
to the Court and furnished the petitioners and petitioners-in-
intervention with copies of the same.
All the petitions were heard by the Court in three separate days of
oral arguments. In the course of the arguments, the Solicitor
General informed the Court that the MOA-AD will not be signed "in
its present form or any other form."14 Thereafter, the government
Peace Panel was dismantled by the President.
II. Petitions should be Decided on the Merits
The first threshold issue is whether this Court should exercise its
power of judicial review and decide the petitions at bar on the
merits.
I respectfully submit that the Court should not avoid its
constitutional duty to decide the petitions at bar on their merit in
view of their transcendental importance. The subject of review in
the petitions at bar is the conduct of the peace process with
the MILF which culminated in the MOA-AD. The
constitutionality of the conduct of the entire peace process and
not just the MOA-AD should go under the scalpel of judicial
scrutiny. The review should not be limited to the initialed MOA-AD
for it is merely the product of a constitutionally flawed process of
negotiations with the MILF.
Let us revisit the steps that led to the contested and controversial
MOA-AD. Peace negotiations with the MILF commenced with the
execution of ceasefire agreements. The watershed event, however,
occurred in 2001, with the issuance of Executive Order No.
315 entitled "Defining Policy and Administrative Structure for
Government's Comprehensive Peace Efforts." Government Peace
Negotiating Panels were immediately constituted to negotiate
peace with rebel groups, which included the MILF. Significantly,
Executive Order No. 3 provides that in the pursuit of social,
economic and political reforms, administrative action, new
legislation or even constitutional amendments may be
required.16 Section 4 of Executive Order No. 3 states, viz:
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.
xxx
c. PEACEFUL, NEGOTIATED SETTLEMENT WITH THE DIFFERENT
REBEL GROUPS. This component involves the conduct of face-to-
face negotiations to reach peaceful settlement with the different
rebel groups. It also involves the effective implementation of peace
agreements. (Emphasis supplied) cralawlibrary
Executive Order No. 3, was later amended by E.O. No. 555,17 and
was followed by the Tripoli Peace Agreement of 2001. The Tripoli
Peace Agreement of 2001 became the basis for several rounds of
exploratory talks between the GRP Peace Panel and the MILF.
These exploratory talks resulted in the signing of the Joint
Statements of the GRP and MILF peace panels to affirm
commitments that implement the Tripoli Agreement of 2001,
including the ancestral domain aspect. The issuance of the Joint
Statements culminated in the initialing of the MOA-AD.18
It is crystal clear that the initialing of the MOA-AD is but the
evidence of the government peace negotiating panel's assent to
the terms contained therein. If the MOA-AD is constitutionally
infirm, it is because the conduct of the peace process itself
is flawed. It is the constitutional duty of the Court is to determine
whether there has been a grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of the government peace
negotiating panel in the conduct of the peace negotiations
with the MILF. The Court should not restrict its review on
the validity of the MOA-AD which is but the end product of
the flawed conduct of the peace negotiation with the MILF.
Requirements of Ripeness and
Mootness are not bars to review
In contending that this Court should refrain from resolving the
merits of the petitions at bar, two principal defenses were deployed
by the Solicitor General: the issues raised for resolution are not
ripe for adjudication and regardless of their ripeness, are moot.
With due respect, the defenses cannot be sustained. To contend
that an issue is not ripe for adjudication is to invoke
prematurity;19 that the issue has not reached a state where judicial
intervention is necessary, hence, there is in reality no actual
controversy. On the other hand, to urge that an issue has become
moot concedes that judicial intervention was once proper but
subsequent developments make further judicial action
unnecessary. Together, mootness and ripeness act as a two-
pronged pincer, squeezing the resolution of controversies within a
narrow timeframe.20
First, the issues at bar are ripe for resolution. In Ohio
Forestry Ass'n Inc. v. Sierra Club,21 the following factors were
identified as indicative of the ripeness of a controversy:
1. Whether delayed review would cause hardship to the plaintiffs;
2. Whether judicial intervention would inappropriately interfere
with further administrative action;
3. Whether the Court would benefit from further factual
development of the issues presented;
Underlying the use of the foregoing factors is first, the setting of a
threshold for review and second, judicial application of the
threshold to the facts extant in a controversy. I respectfully submit
that where a controversy concerns fundamental
constitutional questions, the threshold must be adjusted to
allow judicial scrutiny, in order that the issues may be resolved
at the earliest stage before anything irreversible is
undertaken under cover of an unconstitutional act. Schwartz
cites one vital consideration in determining ripeness, viz:
In dealing with ripeness, one must distinguish between statutes
and other acts that are self-executing and those that are not.
If a statute is self executing, it is ripe for challenge as soon
as it is enacted. For such a statute to be subject to judicial
review, it is not necessary that it be applied by an administrator, a
prosecutor, or some other enforcement officer in a concrete case.22
Although Schwartz employs the term "statute," he qualifies that
the principle enunciated applies to other governmental acts as
well.23
Prescinding from these parameters, it is evident that the Court
is confronted with a MOA-AD that is heavily laden with self-
executing components. Far from the representation of the
Solicitor General, the MOA-AD is not a mere collection of
consensus points,24 still bereft of any legal consequence. The
commitments made by the government panel under the MOA-AD
can be divided into (1) those which are self-executory or are
immediately effective by the terms of the MOA-AD alone, (2) those
with a period or which are to be effective within a stipulated time,
and (3) those that are conditional or whose effectivity depends on
the outcome of a plebiscite.
Let us cast an eye on the self executory provisions of the MOA-
AD which will demolish the argument of the respondents that the
issues in the petitions at bar are not ripe for adjudication.
The MOA-AD provides that "the Parties affirm that the core of the
BJE shall constitute the present geographic area of the ARMM,
including the municipalities of Baloi, Munai, Nunungan, Pantar,
Tagoloan and Tangkal in the province of Lanao del Norte that voted
for inclusion in the ARMM during the 2001 plebiscite."
The MOA-AD then proceeds to enumerate the powers that the BJE
possesses within its area. The BJE is granted powers of governance
which it can exercise without need of amendments to be made to
the Constitution or existing law or without imposing any condition
whatsoever.
The MOA-AD also gives the BJE the unconditional right to
participate in international meetings and events, e.g., ASEAN
meetings and other specialized agencies of the United Nations.25 It
grants BJE the right to participate in Philippine official missions and
delegations that are engaged in the negotiation of border
agreements or protocols for environmental protection, equitable
sharing of incomes and revenues, in addition to those of fishing
rights.26 Again, these rights are given to the BJE without imposing
prior conditions such as amendments to the Constitution, existing
law or the enactment of new legislation.
Next, let us go to provisions of the MOA-AD with a
period which will further demonstrate the lack of merit of
respondents' posture that the petitions at bar are not ripe for
adjudication. The MOA-AD provides that "without derogating from
the requirements of prior agreements27, the Government stipulates
to conduct and deliver, within twelve (12) months following the
signing of the Memorandum of Agreement on Ancestral Domain, a
plebiscite covering the areas as enumerated in the list and depicted
in the map as Category A x x x the Parties shall endeavor to
complete negotiations and resolve all outstanding issues on the
Comprehensive Compact within fifteen (15) months from signing of
the MOA-AD."28 Once more, it is evident that no conditions were
imposed with respect to the conduct of a plebiscite within twelve
months following the signing of the MOA-AD. The provision starkly
states that within twelve months, the government will conduct and
deliver a plebiscite covering areas under Category A of the MOA-
AD.
We now come to respondents' argument on mootness. In
determining whether a case has been rendered moot, courts look
at the development of events to ascertain whether the petitioner
making the constitutional challenge is confronted with
a continuing harm or a substantial potential of harm.
Mootness is sometimes viewed as "the doctrine of standing set in a
time frame: The requisite personal interest must exist at the
commencement of the litigation and must continue throughout its
existence."29 Stated otherwise, an actual controversy must be
extant at all stages of judicial review, not merely at the time the
complaint is filed.30
Respondents insist that the petitions at bar are moot for three
reasons: (1) the petitioners North Cotabato and Zamboanga have
already been furnished copies of the MOA-AD; (2) the Executive
Secretary has issued a Memorandum that the government will not
sign the MOA-AD and, (3) the GRP Peace Panel has been dissolved
by the President.
These grounds are barren grounds. For one, the press statements
of the Presidential Adviser on the Peace Process, Gen. Hermogenes
Esperon, Jr., are clear that the MOA-AD will still be used as
a major reference in future negotiations.31 For another, the MILF
considers the MOA-AD a "done deal," 32 hence, ready for
implementation. On the other hand, the peace panel may have
been temporarily dismantled but the structures set up by the
Executive and their guidelines which gave rise to the present
controversy remain intact. With all these realities, the petitions
at bar fall within that exceptional class of cases which ought
to be decided despite their mootness because the
complained unconstitutional acts are "capable of repetition
yet evading review."33
This well-accepted exception to the non-reviewability of
moot cases was first enunciated in the case of Southern Pacific
Terminal Co. v. ICC.34 The United States Supreme Court held that
a case is not moot where interests of a public character are
asserted under conditions that may be immediately repeated,
merely because the particular order involved has expired.
In the petitions at bar, one need not butt heads with the Solicitor
General to demonstrate the numerous constitutional infirmities of
the MOA-AD. There is no need to iterate and reiterate them.
Suffice to stress that it is because of these evident breaches, that
the MOA-AD requires the present Constitution to undergo radical
revisions. Yet, the unblushing threat is made that the MOA-AD
which shattered to smithereens all respect to the Constitution will
continue to be a reference point in future peace negotiations with
the MILF. In fine, the MOA-AD is a constitutional nightmare that
will come and torment us again in the near future. It must be slain
now. It is not moot.
Let us adhere to the orthodox thought that once a controversy as
to the application of a constitutional provision is raised before this
Court, it becomes a legal issue which the Court is hide-bound to
decide.35 Supervening events, whether contrived or accidental,
cannot prevent the Court from rendering a decision if there is a
grave violation of the Constitution has already been committed or
the threat of being committed again is not a hypothetical fear.36 It
is the function of judicial review to uphold the Constitution at all
cost or we forfeit the faith of the people.
III. The Deviation from the MNLF
Model of Pursuing Peace with
Rebels is Inexplicable
The MNLF model in dealing with rebels which culminated in the
Peace Agreement of 1996, was free from any infirmity because it
respected the metes and bounds of the Constitution. While the
MNLF model is ostensibly based on the Tripoli Agreement of 1976,
its implementation was in perfect accord with Philippine laws. The
implementation of the Tripoli Agreement of 1976 came in two
phases: the first, under the legislative power of then President
Marcos and the second, under the provisions of Article X of the
1987 Constitution and its implementing legislation, Republic Act
No. 6734.37
Under President Marcos, autonomy in the affected provinces was
recognized through Presidential Proclamation No.1628. It declared
autonomy in 13 provinces and constituted a provisional
government for the affected areas. The proclamation was followed
by a plebiscite and the final framework for the autonomous region
was embodied in Presidential Decree No.1618.
The establishment of the autonomous region under P.D. 1628
was constitutionalized by the commissioners in the 1987
Constitution as shown by the following exchange of views:
MR. ALONTO: Madam President, I have stated from the start of our
consideration of this Article on Local Governments that the
autonomous region exists now in this country. There is a de facto
existence of an autonomous government in what we call now
Regions IX and XII. Region IX is composed of the provinces of
Tawi-Tawi, Sulu, Basilan, Zamboanga City, Zamboanga del Sur and
Zamboanga del Norte, including all the component cities in the
provinces. Region XII is composed of the Provinces of Lanao del
Norte, Lanao del Sur, Maguindanao, Sultan Kudarat and North
Cotabato. This autonomous region has its central governmental
headquarters in Zamboanga City for Region IX and in Cotabato City
for Region XII. In fact, it is stated by Commissioner Ople that it has
an executive commission and a legislative assembly.
MR. DE CASTRO: Madam President.
MR. ALONTO: These two regions have been organized by virtue of
P.D. No. 1618 of President Marcos, as amended by P.D. No. 1843.
MR. DE CASTRO: Madam President.
MR. ALONTO: If the Gentleman will bear with me, I will explain to
him. That is why there is a de facto autonomous government
existing in Mindanao
MR. DE CASTRO: Madam President.
THE PRESIDENT: May we please allow Commissioner Alonto to
finish his remarks before any interruption?cralawred
MR. DE CASTRO: Yes Madam President.
MR. ALONTO: Madam President, this autonomous region is
recognized by the present regime for the very reason that the
present regime is now in the process of a negotiation with the Moro
National Liberation Front. In a way, what we are doing is to give
constitutional basis for the President of this country today to
proceed with the negotiation with the Moro National Liberation
Front.
THE PRESIDENT: Commissioner Uka is recognized.
MR. UKA: Madam President, not only that. President Corazon C.
Aquino has appointed Mr. Albert Tugum as the Chairman of Region
IX and Mr. Datu Zakaria Candau as chairman of Region XII. They
are doing their work well right now. So there are two recognized
autonomous regions. They have also a complete regional assembly
as the legislative body. So, it is only a matter of putting this in the
Constitution.
THE PRESIDENT: So, what is before the body is the proposed
amendment on Line 11 of Section 1.
Commissioner de Castro is recognized.
MR. DE CASTRO: Madam President, if there is now an autonomous
region in Mindanao and if, according to the Honorable Ople, this
has the recognition of the central government, what then is the use
of creating autonomous regions in Muslim Mindanao and going
through the process of a plebiscite and enacting an organic act? cralawred
My amendment is simply to clarify the term "Muslim Mindanao." I
really did not expect that this will go this far - - - that it is being
placed in the Constitution, that it is a fait accompli and that all we
have to do here is say "amen" to the whole thing and it we do not
say "amen," they will still continue to be autonomous regions. I
insist on my amendment, Madam President.
MR. OPLE: May I provide more information to Commissioner de
Castro on this matter.
First of all, we have to correct the misimpression that the
autonomous regions, such as they now exist in Mindanao, do not
enjoy the recognition of the central government. Secondly, may I
point out that the autonomy existing now in Regions IX and XII is a
very imperfect kind of autonomy. We are not satisfied with the
legal sufficiency of these regions as autonomous regions and that
is the reason the initiative has been taken in order to guarantee by
the Constitution the right to autonomy of the people embraced in
these regions and not merely on the sufferance of any existing or
future administration. It is a right, moreover, for which they have
waged heroic struggles, not only in this generation but in previous
eras and, therefore, what we seek is constitutional permanence for
this right.
May I also point out, Madam President, that the Tripoli Agreement
was negotiated under the aegis of foreign powers. No matter how
friendly and sympathetic they are to our country, this is under the
aegis of the 42-nation Islamic Conference. Should our brothers
look across the seas to a conclave of foreign governments so that
their rights may be recognized in the Constitution? Do they have to
depend upon foreign sympathy so that their right can be
recognized in final, constitutional and durable form.
THE PRESIDENT: Commissioner Ople, the consensus here is to
grant autonomy to the Muslim areas of Mindanao? cralawred
MR. OPLE: Yes.(Emphasis supplied)38
Clearly, the mandate for the creation of the ARMM is derived
principally from the 1987 Constitution. Thereafter, ARRM was
given life by Republic Act No. 6734,39 the Organic Act of the ARMM.
Our executive officials were guided by and did not stray away from
these legal mandates at the negotiation and execution of the Peace
Agreement with the MNLF in 1996. Without ifs and buts, its
Whereas Clauses affirmed our sovereignty and territorial integrity
and completely respected our Constitution.40
In stark contrast, the peace process with the MILF draws its
mandate principally from Executive Order No. 3. This
executive order provided the basis for the execution of the Tripoli
Agreement of 2001 and thereafter, the MOA-AD. During the
whole process, the government peace negotiators
conducted themselves free from the strictures of the
Constitution. They played fast and loose with the do's and dont's
of the Constitution. They acted as if the grant of executive power
to the President allows them as agents to make agreements with
the MILF in violation of the Constitution. They acted as if these
violations can anyway be cured by committing that the sovereign
people will change the Constitution to conform with the MOA-AD.
They forgot that the Constitution grants power but also sets some
impotence on power.
IV. The Exercise of Executive Power is
Subject to the Constitution
Clearly, the respondents grossly misunderstood and patently
misapplied the executive powers of the President.
The MILF problem is a problem of rebellion penalized under the
Revised Penal Code.41 The MILF is but a rebel group. It has not
acquired any belligerency status. The rebellion of the MILF is
recognized expressly by E.O. No. 342 as well as by E.O. No.
555.43 The President's powers in dealing with rebellion are spelled
out in Article VII, section 18 of the Constitution, viz:
The President shall be the Commander-in-Chief of all armed forces
of the Philippines and whenever it becomes necessary, he may call
out such armed forces to prevent or suppress lawless violence,
invasion or rebellion. In case of invasion or rebellion, when the
public safety requires it, he may, for a period not exceeding sixty
days, suspend the privilege of the writ of habeas corpus or place
the Philippines or any part thereof under martial law. Within forty-
eight hours from the proclamation of martial law or the suspension
of the privilege of the writ of habeas corpus, the President shall
submit a report in person or in writing to the Congress. The
Congress, voting jointly, by a vote of at least a majority of all its
Members in regular or special session, may revoke such
proclamation or suspension, which revocation shall not be set aside
by the President. Upon the initiative of the President, the Congress
may, in the same manner, extend such proclamation or suspension
for a period to be determined by the Congress, if the invasion or
rebellion shall persist and public safety requires it.
The Congress, if not in session, shall, within twenty-four hours
following such proclamation or suspension, convene in accordance
with its rules without need of a call.
The Supreme Court may review, in an appropriate proceeding filed
by any citizen, the sufficiency of the factual basis of the
proclamation of martial law or the suspension of the privilege of
the writ of habeas corpus or the extension thereof, and must
promulgate its decision thereon within thirty days from its filing.
A state of martial law does not suspend the operation of the
Constitution, nor supplant the functioning of the civil courts or
legislative assemblies, nor authorize the conferment of jurisdiction
on military courts and agencies over civilians where civil courts are
able to function, nor automatically suspend the privilege of the writ
of habeas corpus.
The suspension of the privilege of the writ of habeas corpus shall
apply only to persons judicially charged for rebellion or offenses
inherent in, or directly connected with, invasion.
During the suspension of the privilege of the writ of habeas corpus,
any person thus arrested or detained shall be judicially charged
within three days, otherwise he shall be released.
These are the well crafted commander-in-chief powers of the
President. They enumerate with exactitude the powers which the
President should use in dealing with rebellion. They are graduated
in degrees. The strongest of these powers is the power to declare
martial law and worthy to note, its exercise is subject to restraints.
But more important, all these commander-in-chief powers can only
be used to quell the rebellion. They cannot be utilized to
dismember the State or to create a state within our State and hand
it over to the MILF rebels.
In dealing with the MILF rebellion, the President may,
however, opt not to use force but negotiate peace with the
MILF. Undoubtedly, the President as Chief Executive can negotiate
peace with rebels, like the MILF. Article VII, section 1 of the
Constitution vests in the President the entire panoply of executive
power, to reach peace with rebels. But undoubtedly too, the
exercise of executive power to secure peace with rebels is
limited by the Constitution.
All these are due to the preeminent principle that our government
is fundamentally one of limited and enumerated powers. As well
stated in Angara v. Electoral Commission,44 viz:
But in the main, the Constitution has blocked out with deft strokes
and in bold lines, allotment of power to the executive, the
legislative and the judicial departments of the government. The
overlapping and interlacing of functions and duties between the
several departments, however, sometimes makes it hard to say
just where the one leaves off and the other begins. In times of
social disquietude or political excitement, the great landmarks of
the Constitution are apt to be forgotten or marred, if not entirely
obliterated. In cases of conflict, the judicial department is the only
constitutional organ which can be called upon to determine the
proper allocation of powers between the several departments and
among the integral or constituent units thereof.
In fine, there is no power in the Constitution that can run riot.
There is no power in the Constitution that is unbounded. There is
no power in the Constitution that can be exercised if it will destroy
the Constitution. For all powers in the Constitution are designed to
preserve the Constitution.
In other words, the President as Chief Executive can negotiate
peace with the MILF but it is peace that will insure that our laws
are faithfully executed. The President can seek peace with the MILF
but without crossing the parameters of powers marked in the
Constitution to separate the other branches of government to
preserve our democracy. For even in times of war, our system of
checks and balances cannot be infringed.45 More so in times where
the only danger that faces the State is the lesser danger of
rebellion.
Needless to stress, the power of the President to negotiate peace
with the MILF is not plenary. While a considerable degree of
flexibility and breadth is accorded to the peace negotiating panel,
the latitude has its limits - the Constitution. The Constitution was
ordained by the sovereign people and its postulates may not be
employed as bargaining chips without their prior consent.
V. The Constitution as Compact of the People
The question may be asked: In the process of negotiating peace
with the MILF, why cannot the Executive commit to do acts which
are prohibited by the Constitution and seek their ratification later
by its amendment or revision? cralawred
Many philosophical perspectives have been advanced in reply to
this question. Yet, no theory has been as influential, nor has been
as authoritative, as the social contract theory,46 articulated by John
Locke, viz:
For when any number of men have, by the consent of every
individual, made a community, they have thereby made that
community one body, with a power to act as one body, which is
only by the will and determination of the majority: for that which
acts any community, being only the consent of the individuals of it,
and it being necessary to that which is one body to move one way;
it is necessary the body should move that way whither the greater
force carries it, which is the consent of the majority: or else it is
impossible it should act or continue one body, one community,
which the consent of every individual that united into it, agreed
that it should; and so every one is bound by that consent to be
concluded by the majority. And therefore we see, that in
assemblies, empowered to act by positive laws, where no number
is set by that positive law which empowers them, the act of the
majority passes for the act of the whole, and of course determines,
as having, by the law of nature and reason, the power of the
whole.47
The French philosopher, Jean Jacques Rosseau stressed the non-
derogability of this social contract, viz:
But the body politic or sovereign, deriving its existence only from
the sanctity of the contract, can never bind itself, even to others,
in anything that derogates from the original act, such as
alienation of some portion of itself, or submission to another
sovereign. To violate the act by which it exists would be to
annihilate itself; and what is nothing produces nothing.48
Dean Vicente Sinco of the U.P. College of Law articulated these
precepts in his seminal work, Philippine Political Law, viz:
As adopted in our system of jurisprudence a constitution is a
written instrument which serves as the fundamental law of the
state. In theory, it is the creation of the will of the people, who are
deemed the source of all political powers. It provides for the
organization of the essential departments of government,
determines and limits their powers, and prescribes guarantees to
the basic rights of the individual.49
xxxx
Some authorities have also considered the constitution as a
compact, an "agreement of the people, in their individual
capacities, reduced to writing, establishing and fixing certain
principles for the government of themselves." This notion
expresses the old theory of the social contract obligatory on all
parties and revocable by no one individual or group less than
the majority of the people; otherwise it will not have the attribute
of law.50 (Emphasis supplied) cralawlibrary
In sum, there is no power nor is there any right to violate the
Constitution on the part of any official of government. No one can
claim he has a blank check to violate the Constitution in advance
and the privilege to cure the violation later through amendment of
its provisions. Respondents' thesis of violate now, validate later
makes a burlesque of the Constitution.
I vote to grant the petitions.
G.R. No. 167324               July 17, 2007
TONDO MEDICAL CENTER EMPLOYEES ASSOCIATION, RESEARCH
INSTITUTE FOR TROPICAL MEDICINE EMPLOYEES ASSOCIATION, NATIONAL
ORTHOPEDIC WORKERS UNION, DR. JOSE R. REYES MEMORIAL HOSPITAL
EMPLOYEES UNION, SAN LAZARO HOSPITAL EMPLOYEES ASSOCIATION,
ALLIANCE OF HEALTH WORKERS, INC., HEALTH ALLIANCE FOR
DEMOCRACY, COUNCIL FOR HEALTH DEVELOPMENT, NETWORK OPPOSED
TO PRIVATIZATION, COMMUNITY MEDICINE DEVELOPMENT FOUNDATION
INC., PHILIPPINE SOCIETY OF SANITARY ENGINEERS INC., KILUSANG MAYO
UNO, GABRIELA, KILUSANG MAGBUBUKID NG PILIPINAS, KALIPUNAN NG
DAMAYAN NG MGA MARALITA, ELSA O. GUEVARRA, ARCADIO B.
GONZALES, JOSE G. GALANG, DOMINGO P. MANAY, TITO P. ESTEVES,
EDUARDO P. GALOPE, REMEDIOS M. YSMAEL, ALFREDO BACUÑATA,
EDGARDO J. DAMICOG, REMEDIOS M. MALTU AND REMEGIO S.
MERCADO, Petitioners,
vs.
THE COURT OF APPEALS, EXECUTIVE SECRETARY ALBERTO G. ROMULO,
SECRETARY OF HEALTH MANUEL M. DAYRIT, SECRETARY OF BUDGET AND
MANAGEMENT EMILIA T. BONCODIN, Respondents.
DECISION
CHICO-NAZARIO, J.:
This is a Petition for Review on Certiorari, under Rule 45 of the Rules of Court,
assailing the Decision,1 promulgated by the Court of Appeals on 26 November 2004,
denying a petition for the nullification of the Health Sector Reform Agenda (HSRA)
Philippines 1999-2004 of the Department of Health (DOH); and Executive Order No.
102, "Redirecting the Functions and Operations of the Department of Health," which
was issued by then President Joseph Ejercito Estrada on 24 May 1999.
Prior hereto, petitioners originally filed a Petition for Certiorari, Prohibition and
Mandamus under Rule 65 of the 1997 Revised Rules of Civil Procedure before the
Supreme Court on 15 August 2001. However, the Supreme Court, in a Resolution
dated 29 August 2001, referred the petition to the Court of Appeals for appropriate
action.
HEALTH SECTOR REFORM AGENDA (HSRA)
In 1999, the DOH launched the HSRA, a reform agenda developed by the HSRA
Technical Working Group after a series of workshops and analyses with inputs from
several consultants, program managers and technical staff possessing the adequate
expertise and experience in the health sector. It provided for five general areas of
reform: (1) to provide fiscal autonomy to government hospitals; (2) secure funding for
priority public health programs; (3) promote the development of local health systems
and ensure its effective performance; (4) strengthen the capacities of health
regulatory agencies; and (5) expand the coverage of the National Health Insurance
Program (NHIP).2
Petitioners questioned the first reform agenda involving the fiscal autonomy of
government hospitals, particularly the collection of socialized user fees and the
corporate restructuring of government hospitals. The said provision under the HSRA
reads:
Provide fiscal autonomy to government hospitals. Government hospitals must be
allowed to collect socialized user fees so they can reduce the dependence on direct
subsidies from the government. Their critical capacities like diagnostic equipment,
laboratory facilities and medical staff capability must be upgraded to effectively
exercise fiscal autonomy. Such investment must be cognizant of complimentary
capacity provided by public-private networks. Moreover such capacities will allow
government hospitals to supplement priority public health programs. Appropriate
institutional arrangement must be introduced such as allowing them autonomy
towards converting them into government corporations without compromising their
social responsibilities. As a result, government hospitals are expected to be more
competitive and responsive to health needs.
Petitioners also assailed the issuance of a draft administrative order issued by the
DOH, dated 5 January 2001, entitled "Guidelines and Procedure in the
Implementation of the Corporate Restructuring of Selected DOH Hospitals to Achieve
Fiscal Autonomy, and Managerial Flexibility to Start by January 2001;"3 and
Administrative Order No. 172 of the DOH, entitled "Policies and Guidelines on the
Private Practice of Medical and Paramedical Professionals in Government Health
Facilities,"4 dated 9 January 2001, for imposing an added burden to indigent Filipinos,
who cannot afford to pay for medicine and medical services.5
Petitioners alleged that the implementation of the aforementioned reforms had
resulted in making free medicine and free medical services inaccessible to
economically disadvantaged Filipinos. Thus, they alleged that the HSRA is void for
being in violation of the following constitutional provisions:6
ART. III, SEC. 1. No person shall be deprived of life, liberty or property without due
process of law, nor shall any person be denied the equal protection of the law.
ART II, SEC. 5. The maintenance of peace and order, the protection of life, liberty,
and property, and the promotion of the general welfare are essential for the
enjoyment of all the people of the blessings of democracy.
ART II, SEC. 9. The State shall promote a just and dynamic social order that will
ensure the prosperity and independence of the nation and free the people from
poverty through policies that provide adequate social services, promote full
employment, a rising standard of living and an improved quality of life for all.
ART II, SEC. 10. The State shall promote social justice in all phases of national
development.
ART II, SEC. 11. The State values the dignity of every human person and guarantees
full respect for human rights.
ART II, SEC. 13. The State recognizes the vital role of the youth in nation-building
and shall promote and protect their physical, moral, spiritual, intellectual and social
well-being x x x.
ART II, SEC. 18. The State affirms labor as a primary social economic force. It shall
protect the rights of workers and promote their welfare.
ART XV, SEC. 1. The State recognizes the Filipino family as the foundation of the
nation. Accordingly, it shall strengthen its solidarity and actively promote its total
development.
ART XV, SEC. 3. The State shall defend:
xxxx
(2) the right of children to assistance, including proper care and nutrition, and special
protection from all forms of neglect, abuse, cruelty, exploitation and other conditions
prejudicial to their development.
xxxx
ART XIII, SEC. 14. The State shall protect working women by providing safe and
healthful working conditions, taking into account their maternal functions, and such
facilities and opportunities that will enhance their welfare and enable them to realize
their full potential in the service of the nation.
ART II, SEC. 15. The State shall protect and promote the right to health of the people
and instill health consciousness among them.
ART XIII, SEC. 11. The State shall adopt an integrated and comprehensive approach
to health development which shall endeavor to make essential goods, health and
other social services available to all people at affordable cost. There shall be priority
for the needs of the underprivileged sick, elderly, disabled, women, and children. The
State shall endeavor to provide free medical care to paupers.
EXECUTIVE ORDER NO. 102
On 24 May 1999, then President Joseph Ejercito Estrada issued Executive Order No.
102, entitled "Redirecting the Functions and Operations of the Department of Health,"
which provided for the changes in the roles, functions, and organizational processes
of the DOH. Under the assailed executive order, the DOH refocused its mandate from
being the sole provider of health services to being a provider of specific health
services and technical assistance, as a result of the devolution of basic services to
local government units. The provisions for the streamlining of the DOH and the
deployment of DOH personnel to regional offices and hospitals read:
Sec. 4. Preparation of a Rationalization and Streamlining Plan. In view of the
functional and operational redirection in the DOH, and to effect efficiency and
effectiveness in its activities, the Department shall prepare a Rationalization and
Streamlining Plan (RSP) which shall be the basis of the intended changes. The RSP
shall contain the following:
a) the specific shift in policy directions, functions, programs and
activities/strategies;
b) the structural and organizational shift, stating the specific functions and
activities by organizational unit and the relationship of each units;
c) the staffing shift, highlighting and itemizing the existing filled and unfilled
positions; and
d) the resource allocation shift, specifying the effects of the streamline set-up
on the agency budgetary allocation and indicating where possible, savings
have been generated.
The RSP shall [be] submitted to the Department of Budget and Management for
approval before the corresponding shifts shall be affected (sic) by the DOH Secretary.
Sec. 5. Redeployment of Personnel. The redeployment of officials and other
personnel on the basis of the approved RSP shall not result in diminution in rank and
compensation of existing personnel. It shall take into account all pertinent Civil
Service laws and rules.
Section 6. Funding. The financial resources needed to implement the Rationalization
and Streamlining Plan shall be taken from funds available in the DOH, provided that
the total requirements for the implementation of the revised staffing pattern shall not
exceed available funds for Personnel Services.
Section 7. Separation Benefits. Personnel who opt to be separated from the service
as a consequence of the implementation of this Executive Order shall be entitled to
the benefits under existing laws. In the case of those who are not covered by existing
laws, they shall be entitled to separation benefits equivalent to one month basic
salary for every year of service or proportionate share thereof in addition to the
terminal fee benefits to which he/she is entitled under existing laws.
Executive Order No. 102 was enacted pursuant to Section 17 of the Local
Government Code (Republic Act No. 7160), which provided for the devolution to the
local government units of basic services and facilities, as well as specific health-
related functions and responsibilities.7
Petitioners contended that a law, such as Executive Order No. 102, which effects the
reorganization of the DOH, should be enacted by Congress in the exercise of its
legislative function. They argued that Executive Order No. 102 is void, having been
issued in excess of the President’s authority.8
Moreover, petitioners averred that the implementation of the Rationalization and
Streamlining Plan (RSP) was not in accordance with law. The RSP was allegedly
implemented even before the Department of Budget and Management (DBM)
approved it. They also maintained that the Office of the President should have issued
an administrative order to carry out the streamlining, but that it failed to do so.9
Furthermore, petitioners Elsa O. Guevarra, Arcadio B. Gonzales, Jose G. Galang,
Domingo P. Manay, Eduardo P. Galope, Remedios M. Ysmael, Alfredo U. Bacuñata
and Edgardo J. Damicog, all DOH employees, assailed the validity of Executive Order
No. 102 on the ground that they were likely to lose their jobs, and that some of them
were suffering from the inconvenience of having to travel a longer distance to get to
their new place of work, while other DOH employees had to relocate to far-flung
areas.10
Petitioners also pointed out several errors in the implementation of the RSP. Certain
employees allegedly suffered diminution of compensation,11 while others were
supposedly assigned to positions for which they were neither qualified nor suited. 12 In
addition, new employees were purportedly hired by the DOH and appointed to
positions for which they were not qualified, despite the fact that the objective of the
ongoing streamlining was to cut back on costs.13 It was also averred that DOH
employees were deployed or transferred even during the three-month period before
the national and local elections in May 2001, 14 in violation of Section 2 of the Republic
Act No. 7305, also known as "Magna Carta for Public Health Workers."15 Petitioners,
however, failed to identify the DOH employees referred to above, much less include
them as parties to the petition.
The Court of Appeals denied the petition due to a number of procedural defects,
which proved fatal: 1) Petitioners failed to show capacity or authority to sign the
certification of non-forum shopping and the verification; 2) Petitioners failed to show
any particularized interest for bringing the suit, nor any direct or personal injury
sustained or were in the immediate danger of sustaining; 3) the Petition, brought
before the Supreme Court on 15 August 1999, was filed out of time, or beyond 60
days from the time the reorganization methods were implemented in 2000; and 4)
certiorari, Prohibition and Mandamus will not lie where the President, in issuing the
assailed Executive Order, was not acting as a tribunal, board or officer exercising
judicial or quasi-judicial functions.
In resolving the substantial issues of the case, the Court of Appeals ruled that the
HSRA cannot be declared void for violating Sections 5, 9, 10, 11, 13, 15, 18 of Article
II; Section 1 of Article III; Sections 11 and 14 of Article XIII; and Sections 1 and 3(2) of
Article XV, all of the 1987 Constitution, which directly or indirectly pertain to the duty
of the State to protect and promote the people’s right to health and well-being. It
reasoned that the aforementioned provisions of the Constitution are not self-
executing; they are not judicially enforceable constitutional rights and can only
provide guidelines for legislation.
Moreover, the Court of Appeals held that the petitioners’ assertion that Executive
Order No. 102 is detrimental to the health of the people cannot be made a justiciable
issue. The question of whether the HSRA will bring about the development or
disintegration of the health sector is within the realm of the political department.
Furthermore, the Court of Appeals decreed that the President was empowered to
issue Executive Order No. 102, in accordance with Section 17 Article VII of the 1987
Constitution. It also declared that the DOH did not implement Executive Order No.
102 in bad faith or with grave abuse of discretion, as alleged by the petitioners, as the
DOH issued Department Circular No. 275-C, Series of 2000, which created the
different committees tasked with the implementation of the RSP, only after both the
DBM and Presidential Committee on Effective Governance (PCEG) approved the
RSP on 8 July 2000 and 17 July 2000, respectively. 1avvphi1
Petitioners filed with the Court of Appeals a Motion for Reconsideration of the
Decision rendered on 26 November 2004, but the same was denied in a Resolution
dated 7 March 2005.
Hence, the present petition, where the following issues are raised:
I.
THE HONORABLE COURT OF APPEALS COMMITTED MANIFEST
ERROR IN RULING THAT ANY QUESTION ON THE WISDOM AND
EFFICACY OF THE HEALTH SECTOR REFORM AGENDA IS NOT A
JUSTICIABLE CONTROVERSY AND THAT THE CONSTITUTIONAL
PROVISIONS PROTECTING THE HEALTH OF THE FILIPINO PEOPLE
ARE NOT JUDICIALLY ENFORCEABLE;
II.
THE HONORABLE COURT OF APPEALS COMMITTED MANIFEST
ERROR IN RULING THAT PETITIONERS’ COMPLAINT THAT EXECUTIVE
ORDER NO. 102 IS DETRIMENTAL TO THE FILIPINO IS LIKEWISE NOT
A JUSTICIABLE CONTROVERSY AND THAT THE PRESIDENT HAS THE
AUTHORITY TO ISSUE SAID ORDER; AND
III.
THE HONORABLE COURT OF APPEALS COMMITTED MANIFEST
ERROR IN UPHOLDING TECHNICALITIES OVER AND ABOVE THE
ISSUES OF TRANSCENDENTAL IMPORTANCE RAISED IN THE
PETITION BELOW. 16
The Court finds the present petition to be without merit.
Petitioners allege that the HSRA should be declared void, since it runs counter to the
aspiration and ideals of the Filipino people as embodied in the Constitution. 17 They
claim that the HSRA’s policies of fiscal autonomy, income generation, and revenue
enhancement violate Sections 5, 9, 10, 11, 13, 15 and 18 of Article II, Section 1 of
Article III; Sections 11 and 14 of Article XIII; and Sections 1 and 3 of Article XV of the
1987 Constitution. Such policies allegedly resulted in making inaccessible free
medicine and free medical services. This contention is unfounded.
As a general rule, the provisions of the Constitution are considered self-executing,
and do not require future legislation for their enforcement. For if they are not treated
as self-executing, the mandate of the fundamental law can be easily nullified by the
inaction of Congress.18 However, some provisions have already been categorically
declared by this Court as non self-executing.
In Tanada v. Angara,19 the Court specifically set apart the sections found under Article
II of the 1987 Constitution as non self-executing and ruled that such broad principles
need legislative enactments before they can be implemented:
By its very title, Article II of the Constitution is a "declaration of principles and state
policies." x x x. These principles in Article II are not intended to be self-executing
principles ready for enforcement through the courts. They are used by the judiciary as
aids or as guides in the exercise of its power of judicial review, and by the legislature
in its enactment of laws.
In Basco v. Philippine Amusement and Gaming Corporation,20 this Court declared that
Sections 11, 12, and 13 of Article II; Section 13 of Article XIII; and Section 2 of Article
XIV of the 1987 Constitution are not self-executing provisions. In Tolentino v.
Secretary of Finance,21 the Court referred to Section 1 of Article XIII and Section 2 of
Article XIV of the Constitution as moral incentives to legislation, not as judicially
enforceable rights. These provisions, which merely lay down a general principle, are
distinguished from other constitutional provisions as non self-executing and,
therefore, cannot give rise to a cause of action in the courts; they do not embody
judicially enforceable constitutional rights.22
Some of the constitutional provisions invoked in the present case were taken from
Article II of the Constitution -- specifically, Sections 5, 9, 10, 11, 13, 15 and 18 -- the
provisions of which the Court categorically ruled to be non self-executing in the
aforecited case of Tañada v. Angara.23
Moreover, the records are devoid of any explanation of how the HSRA supposedly
violated the equal protection and due process clauses that are embodied in Section 1
of Article III of the Constitution. There were no allegations of discrimination or of the
lack of due process in connection with the HSRA. Since they failed to substantiate
how these constitutional guarantees were breached, petitioners are unsuccessful in
establishing the relevance of this provision to the petition, and consequently, in
annulling the HSRA.
In the remaining provisions, Sections 11 and 14 of Article XIII and Sections 1 and 3 of
Article XV, the State accords recognition to the protection of working women and the
provision for safe and healthful working conditions; to the adoption of an integrated
and comprehensive approach to health; to the Filipino family; and to the right of
children to assistance and special protection, including proper care and nutrition. Like
the provisions that were declared as non self-executory in the cases of Basco v.
Philippine Amusement and Gaming Corporation24 and Tolentino v. Secretary of
Finance,25 they are mere statements of principles and policies. As such, they are mere
directives addressed to the executive and the legislative departments. If unheeded,
the remedy will not lie with the courts; but rather, the electorate’s displeasure may be
manifested in their votes.
The rationale for this is given by Justice Dante Tinga in his Separate Opinion in the
case of Agabon v. National Labor Relations Commission26 :
x x x However, to declare that the constitutional provisions are enough to guarantee
the full exercise of the rights embodied therein, and the realization of the ideals
therein expressed, would be impractical, if not unrealistic. The espousal of such view
presents the dangerous tendency of being overbroad and exaggerated. x x x
Subsequent legislation is still needed to define the parameters of these guaranteed
rights. x x x Without specific and pertinent legislation, judicial bodies will be at a loss,
formulating their own conclusion to approximate at least the aims of the Constitution.
The HSRA cannot be nullified based solely on petitioners’ bare allegations that it
violates the general principles expressed in the non self-executing provisions they cite
herein. There are two reasons for denying a cause of action to an alleged
infringement of broad constitutional principles: basic considerations of due process
and the limitations of judicial power.27
Petitioners also claim that Executive Order No. 102 is void on the ground that it was
issued by the President in excess of his authority. They maintain that the structural
and functional reorganization of the DOH is an exercise of legislative functions, which
the President usurped when he issued Executive Order No. 102.28 This line of
argument is without basis.
This Court has already ruled in a number of cases that the President may, by
executive or administrative order, direct the reorganization of government entities
under the Executive Department.29 This is also sanctioned under the Constitution, as
well as other statutes.
Section 17, Article VII of the 1987 Constitution, clearly states: "[T]he president shall
have control of all executive departments, bureaus and offices." Section 31, Book III,
Chapter 10 of Executive Order No. 292, also known as the Administrative Code of
1987 reads:
SEC. 31. Continuing Authority of the President to Reorganize his Office - The
President, subject to the policy in the Executive Office and in order to achieve
simplicity, economy and efficiency, shall have continuing authority to reorganize the
administrative structure of the Office of the President. For this purpose, he may take
any of the following actions:
(1) Restructure the internal organization of the Office of the President
Proper, including the immediate offices, the Presidential Special
Assistants/Advisers System and the Common Staff Support System, by
abolishing consolidating or merging units thereof or transferring functions
from one unit to another;
(2) Transfer any function under the Office of the President to any other
Department or Agency as well as transfer functions to the Office of the
President from other Departments or Agencies; and
(3) Transfer any agency under the Office of the President to any other
department or agency as well as transfer agencies to the Office of the
President from other Departments or agencies.
In Domingo v. Zamora,30 this Court explained the rationale behind the President’s
continuing authority under the Administrative Code to reorganize the administrative
structure of the Office of the President. The law grants the President the power to
reorganize the Office of the President in recognition of the recurring need of every
President to reorganize his or her office "to achieve simplicity, economy and
efficiency." To remain effective and efficient, it must be capable of being shaped and
reshaped by the President in the manner the Chief Executive deems fit to carry out
presidential directives and policies.
The Administrative Code provides that the Office of the President consists of the
Office of the President Proper and the agencies under it.31 The agencies under the
Office of the President are identified in Section 23, Chapter 8, Title II of the
Administrative Code:
Sec. 23. The Agencies under the Office of the President.—The agencies under the
Office of the President refer to those offices placed under the chairmanship of the
President, those under the supervision and control of the President, those under the
administrative supervision of the Office of the President, those attached to it for policy
and program coordination, and those that are not placed by law or order creating
them under any specific department. (Emphasis provided.)
Section 2(4) of the Introductory Provisions of the Administrative Code defines the
term "agency of the government" as follows:
Agency of the Government refers to any of the various units of the Government,
including a department, bureau, office, instrumentality, or government-owned or
controlled corporation, or a local government or a distinct unit therein.
Furthermore, the DOH is among the cabinet-level departments enumerated under
Book IV of the Administrative Code, mainly tasked with the functional distribution of
the work of the President.32 Indubitably, the DOH is an agency which is under the
supervision and control of the President and, thus, part of the Office of the President.
Consequently, Section 31, Book III, Chapter 10 of the Administrative Code, granting
the President the continued authority to reorganize the Office of the President,
extends to the DOH.
The power of the President to reorganize the executive department is likewise
recognized in general appropriations laws. As early as 1993, Sections 48 and 62 of
Republic Act No. 7645, the "General Appropriations Act for Fiscal Year 1993," already
contained a provision stating that:
Sec. 48. Scaling Down and Phase Out of Activities Within the Executive Branch.—
The heads of departments, bureaus and offices and agencies are hereby directed to
identify their respective activities which are no longer essential in the delivery of
public services and which may be scaled down, phased out, or abolished, subject to
civil service rules and regulations. x x x. Actual scaling down, phasing out, or abolition
of activities shall be effected pursuant to Circulars or Orders issued for the purpose
by the Office of the President. (Emphasis provided.)
Sec. 62. Unauthorized Organizational Changes. Unless otherwise created by law or
directed by the President of the Philippines, no organizational unit or changes in key
positions in any department or agency shall be authorized in their respective
organizational structures and be funded form appropriations by this Act.
Again, in the year when Executive Order No. 102 was issued, "The General
Appropriations Act of Fiscal Year 1999" (Republic Act No. 8745) conceded to the
President the power to make any changes in any of the key positions and
organizational units in the executive department thus:
Sec. 77. Organized Changes. Unless otherwise provided by law or directed by the
President of the Philippines, no changes in key positions or organizational units in any
department or agency shall be authorized in their respective organizational structures
and funded from appropriations provided by this Act.
Clearly, Executive Order No. 102 is well within the constitutional power of the
President to issue. The President did not usurp any legislative prerogative in issuing
Executive Order No. 102. It is an exercise of the President’s constitutional power of
control over the executive department, supported by the provisions of the
Administrative Code, recognized by other statutes, and consistently affirmed by this
Court.
Petitioners also pointed out several flaws in the implementation of Executive Order
No. 102, particularly the RSP. However, these contentions are without merit and are
insufficient to invalidate the executive order.
The RSP was allegedly implemented even before the DBM approved it. The facts
show otherwise. It was only after the DBM approved the Notice of Organization,
Staffing and Compensation Action on 8 July 2000,33 and after the Presidential
Committee on Effective Governance (PCEG) issued on 17 July 2000 Memorandum
Circular No. 62,34 approving the RSP, that then DOH Secretary Alberto G. Romualdez
issued on 28 July 2000 Department Circular No. 275-C, Series of 2000,35 creating the
different committees to implement the RSP.
Petitioners also maintain that the Office of the President should have issued an
administrative order to carry out the streamlining, but that it failed to do so. Such
objection cannot be given any weight considering that the acts of the DOH Secretary,
as an alter ego of the President, are presumed to be the acts of the President. The
members of the Cabinet are subject at all times to the disposition of the President
since they are merely his alter egos.36 Thus, their acts, performed and promulgated in
the regular course of business, are, unless disapproved by the President,
presumptively acts of the President.37 Significantly, the acts of the DOH Secretary
were clearly authorized by the President, who, thru the PCEG, issued the
aforementioned Memorandum Circular No. 62, sanctioning the implementation of the
RSP.
Petitioners Elsa Odonzo Guevarra, Arcadio B. Gonzales, Jose G. Galang, Domingo
P. Manay, Eduardo P. Galope, Remedios M. Ysmael, Alfredo U. Bacuñata, and
Edgardo Damicog, all DOH employees, assailed the validity of Executive Order No.
102 on the ground that they were likely to lose their jobs, and that some of them were
suffering from the inconvenience of having to travel a longer distance to get to their
new place of work, while other DOH employees had to relocate to far-flung areas.
In several cases, this Court regarded reorganizations of government units or
departments as valid, for so long as they are pursued in good faith—that is, for the
purpose of economy or to make bureaucracy more efficient.38 On the other hand, if the
reorganization is done for the purpose of defeating security of tenure or for ill-
motivated political purposes, any abolition of position would be invalid. None of these
circumstances are applicable since none of the petitioners were removed from public
service, nor did they identify any action taken by the DOH that would unquestionably
result in their dismissal. The reorganization that was pursued in the present case was
made in good faith. The RSP was clearly designed to improve the efficiency of the
department and to implement the provisions of the Local Government Code on the
devolution of health services to local governments. While this Court recognizes the
inconvenience suffered by public servants in their deployment to distant areas, the
executive department’s finding of a need to make health services available to these
areas and to make delivery of health services more efficient and more compelling is
far from being unreasonable or arbitrary, a determination which is well within its
authority. In all, this Court finds petitioners’ contentions to be insufficient to invalidate
Executive Order No. 102.
Without identifying the DOH employees concerned, much less including them as
parties to the petition, petitioners went on identifying several errors in the
implementation of Executive Order No. 102. First, they alleged that unidentified DOH
employees suffered from a diminution of compensation by virtue of the provision on
Salaries and Benefits found in Department Circular No. 312, Series of 2000, issued
on 23 October 2000, which reads:
2. Any employee who was matched to a position with lower salary grade (SG) shall
not suffer a reduction in salary except where his/her current salary is higher than the
maximum step of the SG of the new position, in which case he/she shall be paid the
salary corresponding to the maximum step of the SG of the new position. RATA shall
no longer be received, if employee was matched to a Non-Division Chief Position.
Incidentally, the petition shows that none of the petitioners, who are working in the
DOH, were entitled to receive RATA at the time the petition was filed. Nor was it
alleged that they suffered any diminution of compensation. Secondly, it was claimed
that certain unnamed DOH employees were matched with unidentified positions for
which they were supposedly neither qualified nor suited. New employees, again
unnamed and not included as parties, were hired by the DOH and appointed to
unidentified positions for which they were purportedly not qualified, despite the fact
that the objective of the ongoing streamlining was to cut back on costs. Lastly,
unspecified DOH employees were deployed or transferred during the three-month
period before the national and local elections in May 2001, in violation of Section 2 of
the Republic Act No. 7305, also known as "Magna Carta for Public Health Workers."
Petitioners’ allegations are too general and unsubstantiated by the records for the
Court to pass upon. The persons involved are not identified, details of their
appointments and transfers – such as position, salary grade, and the date they were
appointed - are not given; and the circumstances which attended the alleged
violations are not specified.
Even granting that these alleged errors were adequately proven by the petitioners,
they would still not invalidate Executive Order No. 102. Any serious legal errors in
laying down the compensation of the DOH employees concerned can only invalidate
the pertinent provisions of Department Circular No. 312, Series of 2000. Likewise,
any questionable appointments or transfers are properly addressed by an appeal
process provided under Administrative Order No. 94, series of 2000; 39 and if the
appeal is meritorious, such appointment or transfer may be invalidated. The validity of
Executive Order No. 102 would, nevertheless, remain unaffected. Settled is the rule
that courts are not at liberty to declare statutes invalid, although they may be abused
or misabused, and may afford an opportunity for abuse in the manner of application.
The validity of a statute or ordinance is to be determined from its general purpose and
its efficiency to accomplish the end desired, not from its effects in a particular case.40
In a number of cases,41 the Court upheld the standing of citizens who filed suits,
wherein the "transcendental importance" of the constitutional question justified the
granting of relief. In spite of these rulings, the Court, in Domingo v.
Carague,42 dismissed the petition when petitioners therein failed to show any present
substantial interest. It demonstrated how even in the cases in which the Court
declared that the matter of the case was of transcendental importance, the petitioners
must be able to assert substantial interest. Present substantial interest, which will
enable a party to question the validity of the law, requires that a party sustained or will
sustain direct injury as a result of its enforcement. 43 It is distinguished from a mere
expectancy or future, contingent, subordinate, or inconsequential interest.44
In the same way, the Court, in Telecommunications & Broadcast Attorneys of the
Philippines, Inc. v. Comelec,45 ruled that a citizen is allowed to raise a constitutional
question only when he can show that he has personally suffered some actual or
threatened injury as a result of the allegedly illegal conduct of the government; the
injury is fairly traceable to the challenged action; and the injury is likely to be
redressed by a favorable action. This case likewise stressed that the rule on
constitutional questions which are of transcendental importance cannot be invoked
where a party’s substantive claim is without merit. Thus, a party’s standing is
determined by the substantive merit of his case or a preliminary estimate thereof.
After a careful scrutiny of the petitioners’ substantive claims, this Court finds that the
petitioners miserably failed to show any merit to their claims.
IN VIEW OF THE FOREGOING, the instant Petition is DENIED. This Court AFFIRMS
the assailed Decision of the Court of Appeals, promulgated on 26 November 2004,
declaring both the HSRA and Executive Order No. 102 as valid. No costs.
G.R. No. 178160               February 26, 2009
BASES CONVERSION AND DEVELOPMENT AUTHORITY, Petitioner,
vs.
COMMISSION ON AUDIT, Respondent.
DECISION
CARPIO, J.:
The Case
This is a petition for certiorari1 with prayer for the issuance of a temporary
restraining order and a writ of preliminary injunction. The petition seeks to
nullify Decision No. 2007-0202 dated 12 April 2007 of the Commission on
Audit (COA).
The Facts
On 13 March 1992, Congress approved Republic Act (RA) No.
72273 creating the Bases Conversion and Development Authority (BCDA).
Section 9 of RA No. 7227 states that the BCDA Board of Directors (Board)
shall exercise the powers and functions of the BCDA. Under Section 10, the
functions of the Board include the determination of the organizational
structure and the adoption of a compensation and benefit scheme at least
equivalent to that of the Bangko Sentral ng Pilipinas (BSP). Accordingly, the
Board determined the organizational structure of the BCDA and adopted a
compensation and benefit scheme for its officials and employees.
On 20 December 1996, the Board adopted a new compensation and benefit
scheme which included a ₱10,000 year-end benefit granted to each
contractual employee, regular permanent employee, and Board member. In a
memorandum4 dated 25 August 1997, Board Chairman Victoriano A. Basco
(Chairman Basco) recommended to President Fidel V. Ramos (President
Ramos) the approval of the new compensation and benefit scheme. In a
memorandum5 dated 9 October 1997, President Ramos approved the new
compensation and benefit scheme.
In 1999, the BSP gave a ₱30,000 year-end benefit to its officials and
employees. In 2000, the BSP increased the year-end benefit from ₱30,000 to
₱35,000. Pursuant to Section 10 of RA No. 7227 which states that the
compensation and benefit scheme of the BCDA shall be at least equivalent
to that of the BSP, the Board increased the year-end benefit of BCDA
officials and employees from ₱10,000 to ₱30,000. Thus in 2000 and 2001,
BCDA officials and employees received a ₱30,000 year-end benefit, and, on
1 October 2002, the Board passed Resolution No. 2002-10-1936 approving
the release of a ₱30,000 year-end benefit for 2002.
Aside from the contractual employees, regular permanent employees, and
Board members, the full-time consultants of the BCDA also received the
year-end benefit.
On 20 February 2003, State Auditor IV Corazon V. Españo of the COA
issued Audit Observation Memorandum (AOM) No. 2003-0047 stating that
the grant of year-end benefit to Board members was contrary to Department
of Budget and Management (DBM) Circular Letter No. 2002-2 dated 2
January 2002. In Notice of Disallowance (ND) No. 03-001-BCDA-(02)8 dated
8 January 2004, Director IV Rogelio D. Tablang (Director Tablang), COA,
Legal and Adjudication Office-Corporate, disallowed the grant of year-end
benefit to the Board members and full-time consultants. In Decision No.
2004-0139 dated 13 January 2004, Director Tablang "concurred" with AOM
No. 2003-004 and ND No. 03-001-BCDA-(02).
In a letter10 dated 20 February 2004, BCDA President and Chief Executive
Officer Rufo Colayco requested the reconsideration of Decision No. 2004-
013. In a Resolution11 dated 22 June 2004, Director Tablang denied the
request. The BCDA filed a notice of appeal12 dated 8 September 2004 and an
appeal memorandum13 dated 23 December 2004 with the COA.
The COA’s Ruling
In Decision No. 2007-020,14 the COA affirmed the disallowance of the year-
end benefit granted to the Board members and full-time consultants and held
that the presumption of good faith did not apply to them. The COA stated
that:
The granting of YEB x x x is not without x x x limitation. DBM Circular Letter
No. 2002-02 dated January 2, 2002 stating, viz:
"2.0 To clarify and address issues/requests concerning the same, the
following compensation policies are hereby reiterated:
2.1 PERA, ADCOM, YEB and retirement benefits, are personnel
benefits granted in addition to salaries. As fringe benefits, these shall
be paid only when the basic salary is also paid.
2.2 Members of the Board of Directors of agencies are not salaried
officials of the government. As non-salaried officials they are not
entitled to PERA, ADCOM, YEB and retirement benefits unless
expressly provided by law.
2.3 Department Secretaries, Undersecretaries and Assistant
Secretaries who serve as Ex-officio Members of the Board of
Directors are not entitled to any remuneration in line with the
Supreme Court ruling that their services in the Board are already
paid for and covered by the remuneration attached to their office."
(underscoring ours)
Clearly, as stated above, the members and ex-officio members of the
Board of Directors are not entitled to YEB, they being not salaried
officials of the government. The same goes with full time
consultants wherein no employer-employee relationships exist between
them and the BCDA. Thus, the whole amount paid to them totaling ₱342,000
is properly disallowed in audit.
Moreover, the presumption of good faith may not apply to the members and
ex-officio members of the Board of Directors because despite the earlier
clarification on the matter by the DBM thru the issuance on January 2, 2002
of DBM Circular Letter No. 2002-02, still, the BCDA Board of Directors
enacted Resolution No. 2002-10-93 on October 1, 2002 granting YEB to the
BCDA personnel including themselves. Full time consultants, being non-
salaried personnel, are also not entitled to such presumption since they knew
from the very beginning that they are only entitled to the amount stipulated in
their contracts as compensation for their services. Hence, they should be
made to refund the disallowed YEB.15 (Boldfacing in the original)
Hence, this petition.
The Court’s Ruling
The Board members and full-time consultants of the BCDA are not entitled to
the year-end benefit.
First, the BCDA claims that the Board can grant the year-end benefit to its
members and full-time consultants because, under Section 10 of RA No.
7227, the functions of the Board include the adoption of a compensation and
benefit scheme.
The Court is not impressed. The Board’s power to adopt a compensation and
benefit scheme is not unlimited. Section 9 of RA No. 7227 states that Board
members are entitled to a per diem:
Members of the Board shall receive a per diem of not more than Five
thousand pesos (₱5,000) for every board meeting: Provided, however,
That the per diem collected per month does not exceed the equivalent
of four (4) meetings: Provided, further, That the amount of per diem for
every board meeting may be increased by the President but such amount
shall not be increased within two (2) years after its last increase. (Emphasis
supplied)1awphi1
Section 9 specifies that Board members shall receive a per diem for every
board meeting; limits the amount of per diem to not more than ₱5,000; and
limits the total amount of per diem for one month to not more than four
meetings. In Magno v. Commission on Audit,16 Cabili v. Civil Service
Commission,17 De Jesus v. Civil Service Commission,18 Molen, Jr. v.
Commission on Audit,19 and Baybay Water District v. Commission on
Audit,20 the Court held that the specification of compensation and
limitation of the amount of compensation in a statute indicate that
Board members are entitled only to the per diem authorized by law and
no other. In Baybay Water District, the Court held that:
By specifying the compensation which a director is entitled to receive and by
limiting the amount he/she is allowed to receive in a month, x x x the law
quite clearly indicates that directors x x x are authorized to receive only the
per diem authorized by law and no other compensation or allowance in
whatever form.21
Also, DBM Circular Letter No. 2002-2 states that, "Members of the Board of
Directors of agencies are not salaried officials of the government. As
non-salaried officials they are not entitled to PERA, ADCOM, YEB and
retirement benefits unless expressly provided by law." RA No. 7227 does
not state that the Board members are entitled to a year-end benefit.
With regard to the full-time consultants, DBM Circular Letter No. 2002-2
states that, "YEB and retirement benefits, are personnel benefits granted
in addition to salaries. As fringe benefits, these shall be paid only when
the basic salary is also paid." The full-time consultants are not part of the
BCDA personnel and are not paid the basic salary. The full-time consultants’
consultancy contracts expressly state that there is no employer-employee
relationship between the BCDA and the consultants, and that the BCDA shall
pay the consultants a contract price. For example, the consultancy
contract22 of a certain Dr. Faith M. Reyes states:
SECTION 2. Contract Price. For and in consideration of the services to be
performed by the CONSULTANT (16 hours/week), BCDA shall pay her the
amount of TWENTY THOUSAND PESOS and 00/100 (₱20,000.00),
Philippine currency, per month.
xxxx
SECTION 4. Employee-Employer Relationship. It is understood that no
employee-employer relationship shall exist between BCDA and the
CONSULTANT.
SECTION 5. Period of Effectivity. This CONTRACT shall have an effectivity
period of one (1) year, from January 01, 2002 to December 31, 2002, unless
sooner terminated by BCDA in accordance with Section 6 below.
SECTION 6. Termination of Services. BCDA, in its sole discretion may opt
to terminate this CONTRACT when it sees that there is no more need for the
services contracted for. (Boldfacing in the original)
Since full-time consultants are not salaried employees of BCDA, they are not
entitled to the year-end benefit which is a "personnel benefit granted in
addition to salaries" and which is "paid only when the basic salary is also
paid."
Second, the BCDA claims that the Board members and full-time consultants
should be granted the year-end benefit because the granting of year-end
benefit is consistent with Sections 5 and 18, Article II of the Constitution.
Sections 5 and 18 state:
Section 5. The maintenance of peace and order, the protection of life, liberty,
and property, and the promotion of the general welfare are essential for the
enjoyment by all people of the blessings of democracy.
Section 18. The State affirms labor as a primary social economic force. It
shall protect the rights of workers and promote their welfare.
The Court is not impressed. Article II of the Constitution is entitled
Declaration of Principles and State Policies. By its very title, Article II is a
statement of general ideological principles and policies. It is not a source of
enforceable rights.23 In Tondo Medical Center Employees Association v.
Court of Appeals,24 the Court held that Sections 5 and 18, Article II of the
Constitution are not self-executing provisions. In that case, the Court
held that "Some of the constitutional provisions invoked in the present case
were taken from Article II of the Constitution — specifically, Sections 5 x x x
and 18 — the provisions of which the Court categorically ruled to be non self-
executing."
Third, the BCDA claims that the denial of year-end benefit to the Board
members and full-time consultants violates Section 1, Article III of the
Constitution.25 More specifically, the BCDA claims that there is no substantial
distinction between regular officials and employees on one hand, and Board
members and full-time consultants on the other. The BCDA states that "there
is here only a distinction, but no difference" because both "have undeniably
one common goal as humans, that is x x x ‘to keep body and soul together’"
or, "[d]ifferently put, both have mouths to feed and stomachs to fill."
The Court is not impressed. Every presumption should be indulged in
favor of the constitutionality of RA No. 7227 and the burden of proof is
on the BCDA to show that there is a clear and unequivocal breach of
the Constitution.26 In Abakada Guro Party List v. Purisima,27 the Court held
that:
A law enacted by Congress enjoys the strong presumption of
constitutionality. To justify its nullification, there must be a clear and
unequivocal breach of the Constitution, not a doubtful and unequivocal one.
To invalidate [a law] based on x x x baseless supposition is an affront to the
wisdom not only of the legislature that passed it but also of the executive
which approved it.
The BCDA failed to show that RA No. 7227 unreasonably singled out Board
members and full-time consultants in the grant of the year-end benefit. It did
not show any clear and unequivocal breach of the Constitution. The claim
that there is no difference between regular officials and employees, and
Board members and full-time consultants because both groups "have mouths
to feed and stomachs to fill" is fatuous. Surely, persons are not automatically
similarly situated — thus, automatically deserving of equal protection of the
laws — just because they both "have mouths to feed and stomachs to fill."
Otherwise, the existence of a substantial distinction would become forever
highly improbable.
Fourth, the BCDA claims that the Board can grant the year-end benefit to its
members and the full-time consultants because RA No. 7227 does not
expressly prohibit it from doing so.
The Court is not impressed. A careful reading of Section 9 of RA No. 7227
reveals that the Board is prohibited from granting its members other benefits.
Section 9 states:
Members of the Board shall receive a per diem of not more than Five
thousand pesos (₱5,000) for every board meeting: Provided, however,
That the per diem collected per month does not exceed the equivalent
of four (4) meetings: Provided, further, That the amount of per diem for
every board meeting may be increased by the President but such amount
shall not be increased within two (2) years after its last increase. (Emphasis
supplied)
Section 9 specifies that Board members shall receive a per diem for every
board meeting; limits the amount of per diem to not more than ₱5,000; limits
the total amount of per diem for one month to not more than four meetings;
and does not state that Board members may receive other benefits.
In Magno,28 Cabili,29 De Jesus,30 Molen, Jr.,31 and Baybay Water District,32 the
Court held that the specification of compensation and limitation of the
amount of compensation in a statute indicate that Board members are
entitled only to the per diem authorized by law and no other.
The specification that Board members shall receive a per diem of not more
than ₱5,000 for every meeting and the omission of a provision allowing
Board members to receive other benefits lead the Court to the inference that
Congress intended to limit the compensation of Board members to the per
diem authorized by law and no other. Expressio unius est exclusio alterius.
Had Congress intended to allow the Board members to receive other
benefits, it would have expressly stated so.33 For example, Congress’
intention to allow Board members to receive other benefits besides the per
diem authorized by law is expressly stated in Section 1 of RA No. 9286:34
SECTION 1. Section 13 of Presidential Decree No. 198, as amended, is
hereby amended to read as follows:
"SEC. 13. Compensation. — Each director shall receive per diem to be
determined by the Board, for each meeting of the Board actually attended by
him, but no director shall receive per diems in any given month in excess of
the equivalent of the total per diem of four meetings in any given month.
Any per diem in excess of One hundred fifty pesos (₱150.00) shall be subject
to the approval of the Administration. In addition thereto, each director
shall receive allowances and benefits as the Board may prescribe
subject to the approval of the Administration." (Emphasis supplied)
The Court cannot, in the guise of interpretation, enlarge the scope of a
statute or insert into a statute what Congress omitted, whether intentionally
or unintentionally.35
When a statute is susceptible of two interpretations, the Court must "adopt
the one in consonance with the presumed intention of the legislature to give
its enactments the most reasonable and beneficial construction, the one that
will render them operative and effective."36 The Court always presumes that
Congress intended to enact sensible statutes.37 If the Court were to rule that
the Board could grant the year-end benefit to its members, Section 9 of RA
No. 7227 would become inoperative and ineffective — the specification that
Board members shall receive a per diem of not more than ₱5,000 for every
meeting; the specification that the per diem received per month shall not
exceed the equivalent of four meetings; the vesting of the power to increase
the amount of per diem in the President; and the limitation that the amount
of per diem shall not be increased within two years from its last increase
would all become useless because the Board could always grant its
members other benefits.
The Court, however, notes that the Board members and full-time consultants
received the year-end benefit in good faith. The Board members relied on (1)
Section 10 of RA No. 7227 which authorized the Board to adopt a
compensation and benefit scheme; (2) the fact that RA No. 7227 does not
expressly prohibit Board members from receiving benefits other than the per
diem authorized by law; and (3) President Ramos’ approval of the new
compensation and benefit scheme which included the granting of a year-end
benefit to each contractual employee, regular permanent employee, and
Board member. The full-time consultants relied on Section 10 of RA No.
7227 which authorized the Board to adopt a compensation and benefit
scheme. There is no proof that the Board members and full-time consultants
knew that their receipt of the year-end benefit was unlawful. In keeping
with Magno,39 De Jesus,40 Molen, Jr.,41 and Kapisanan ng mga Manggagawa
sa Government Service Insurance System (KMG) v. Commission on
Audit,42 the Board members and full-time consultants are not required to
refund the year-end benefits they have already received.
WHEREFORE, the petition is PARTIALLY GRANTED. Commission on Audit
Decision No. 2007-020 dated 12 April 2007 is AFFIRMED with
the MODIFICATION that the Board members and full-time consultants of the
Bases Conversion and Development Authority are not required to refund the
year-end benefits they have already received.

With regard to the full-time consultants, DBM Circular Letter No. 2002-2
states that, "YEB and retirement benefits, are personnel benefits granted
in addition to salaries. As fringe benefits, these shall be paid only when
the basic salary is also paid." The full-time consultants are not part of the
BCDA personnel and are not paid the basic salary. The full-time consultants’
consultancy contracts expressly state that there is no employer-employee
relationship between BCDA and the consultants and that BCDA shall pay the
consultants a contract price. Since full-time consultants are not salaried
employees of the BCDA, they are not entitled to the year-end benefit which is
a "personnel benefit granted in addition to salaries" and which is
"paid only when the basic salary is also paid."

Fifth, the BCDA claims that the Board members and full-time consultants are
entitled to the year-end benefit because (1) President Ramos approved the
granting of the benefit to the Board members, and (2) they have been
receiving it since 1997.

The Court is not impressed. The State is not estopped from correcting a
public officer’s erroneous application of a statute, and an unlawful practice,
no matter how long, cannot give rise to any vested right.38