BAYAN (Bagong Alyansang Makabayan), a JUNK VFA MOVEMENT, BISHOP TOMAS MILLAMENA

(Iglesia Filipina Independiente), BISHOP ELMER BOLOCAN (United Church of Christ of the Phil.), DR.
REYNALDO LEGASCA, MD, KILUSANG MAMBUBUKID NG PILIPINAS, KILUSANG MAYO UNO, GABRIELA,
PROLABOR, and the PUBLIC INTEREST LAW CENTER, petitioners, vs. EXECUTIVE SECRETARY RONALDO
ZAMORA, FOREIGN AFFAIRS SECRETARY DOMINGO SIAZON, DEFENSE SECRETARY ORLANDO
MERCADO, BRIG. GEN. ALEXANDER AGUIRRE, SENATE PRESIDENT MARCELO FERNAN, SENATOR
FRANKLIN DRILON, SENATOR BLAS OPLE, SENATOR RODOLFO BIAZON, and SENATOR FRANCISCO
TATAD, respondents.

[G.R. No. 138572. October 10, 2000]

PHILIPPINE CONSTITUTION ASSOCIATION, INC.(PHILCONSA), EXEQUIEL B. GARCIA, AMADOGAT

INCIONG, CAMILO L. SABIO, AND RAMON A. GONZALES, petitioners, vs. HON. RONALDO B. ZAMORA,
as Executive Secretary, HON. ORLANDO MERCADO, as Secretary of National Defense, and HON.
DOMINGO L. SIAZON, JR., as Secretary of Foreign Affairs, respondents.

[G.R. No. 138587. October 10, 2000]

TEOFISTO T. GUINGONA, JR., RAUL S. ROCO, and SERGIO R. OSMEA III, petitioners, vs. JOSEPH E.
ESTRADA, RONALDO B. ZAMORA, DOMINGO L. SIAZON, JR., ORLANDO B. MERCADO, MARCELO B.
FERNAN, FRANKLIN M. DRILON, BLAS F. OPLE and RODOLFO G. BIAZON, respondents.

[G.R. No. 138680. October 10, 2000]

INTEGRATED BAR OF THE PHILIPPINES, Represented by its National President, Jose Aguila
Grapilon, petitioners, vs. JOSEPH EJERCITO ESTRADA, in his capacity as President, Republic of the
Philippines, and HON. DOMINGO SIAZON, in his capacity as Secretary of Foreign Affairs,respondents.

[G.R. No. 138698. October 10, 2000]

JOVITO R. SALONGA, WIGBERTO TAADA, ZENAIDA QUEZON-AVENCEA, ROLANDO SIMBULAN, PABLITO

V. SANIDAD, MA. SOCORRO I. DIOKNO, AGAPITO A. AQUINO, JOKER P. ARROYO, FRANCISCO C.
RIVERA JR., RENE A.V. SAGUISAG, KILOSBAYAN, MOVEMENT OF ATTORNEYS FOR BROTHERHOOD,
INTEGRITY AND NATIONALISM, INC. (MABINI), petitioners, vs. THE EXECUTIVE SECRETARY, THE
SECRETARY OF FOREIGN AFFAIRS, THE SECRETARY OF NATIONAL DEFENSE, SENATE PRESIDENT
MARCELO B. FERNAN, SENATOR BLAS F. OPLE, SENATOR RODOLFO G. BIAZON, AND ALL OTHER
PERSONS ACTING THEIR CONTROL, SUPERVISION, DIRECTION, AND INSTRUCTION IN RELATION TO THE
VISITING FORCES AGREEMENT (VFA), respondents.

DECISION

BUENA, J.:
Confronting the Court for resolution in the instant consolidated petitions for certiorari and prohibition
are issues relating to, and borne by, an agreement forged in the turn of the last century between the
Republic of the Philippines and the United States of America -the Visiting Forces Agreement.

The antecedents unfold.

On March 14, 1947, the Philippines and the United States of America forged a Military Bases Agreement
which formalized, among others, the use of installations in the Philippine territory by United States
military personnel. To further strengthen their defense and security relationship, the Philippines and the
United States entered into a Mutual Defense Treaty on August 30, 1951. Under the treaty, the parties
agreed to respond to any external armed attack on their territory, armed forces, public vessels, and
aircraft.[1]

In view of the impending expiration of the RP-US Military Bases Agreement in 1991, the Philippines and
the United States negotiated for a possible extension of the military bases agreement. On September
16, 1991, the Philippine Senate rejected the proposed RP-US Treaty of Friendship, Cooperation and
Security which, in effect, would have extended the presence of US military bases in the Philippines.
[2]
 With the expiration of the RP-US Military Bases Agreement, the periodic military exercises conducted
between the two countries were held in abeyance. Notwithstanding, the defense and security
relationship between the Philippines and the United States of America continued pursuant to the
Mutual Defense Treaty.

On July 18, 1997, the United States panel, headed by US Defense Deputy Assistant Secretary for Asia
Pacific Kurt Campbell, met with the Philippine panel, headed by Foreign Affairs Undersecretary Rodolfo
Severino Jr., to exchange notes on the complementing strategic interests of the United States and the
Philippines in the Asia-Pacific region. Both sides discussed, among other things, the possible elements of
the Visiting Forces Agreement (VFA for brevity). Negotiations by both panels on the VFA led to a
consolidated draft text, which in turn resulted to a final series of conferences and negotiations [3] that
culminated in Manila on January 12 and 13, 1998. Thereafter, then President Fidel V. Ramos approved
the VFA, which was respectively signed by public respondent Secretary Siazon and Unites States
Ambassador Thomas Hubbard on February 10, 1998.

On October 5, 1998, President Joseph E. Estrada, through respondent Secretary of Foreign Affairs,
ratified the VFA.[4]

On October 6, 1998, the President, acting through respondent Executive Secretary Ronaldo Zamora,
officially transmitted to the Senate of the Philippines, [5] the Instrument of Ratification, the letter of the
President[6] and the VFA, for concurrence pursuant to Section 21, Article VII of the 1987 Constitution.
The Senate, in turn, referred the VFA to its Committee on Foreign Relations, chaired by Senator Blas F.
Ople, and its Committee on National Defense and Security, chaired by Senator Rodolfo G. Biazon, for
their joint consideration and recommendation. Thereafter, joint public hearings were held by the two
Committees.[7]
On May 3, 1999, the Committees submitted Proposed Senate Resolution No. 443 [8] recommending the
concurrence of the Senate to the VFA and the creation of a Legislative Oversight Committee to oversee
its implementation. Debates then ensued.

On May 27, 1999, Proposed Senate Resolution No. 443 was approved by the Senate, by a two-thirds
(2/3) vote[9] of its members. Senate Resolution No. 443 was then re-numbered as Senate Resolution No.
18.[10]

On June 1, 1999, the VFA officially entered into force after an Exchange of Notes between respondent
Secretary Siazon and United States Ambassador Hubbard.

The VFA, which consists of a Preamble and nine (9) Articles, provides for the mechanism for regulating
the circumstances and conditions under which US Armed Forces and defense personnel may be present
in the Philippines, and is quoted in its full text, hereunder:

Article I

Definitions

As used in this Agreement, United States personnel means United States military and civilian personnel
temporarily in the Philippines in connection with activities approved by the Philippine Government.

Within this definition:

1. The term military personnel refers to military members of the United States Army, Navy, Marine
Corps, Air Force, and Coast Guard.

2. The term civilian personnel refers to individuals who are neither nationals of, nor ordinary residents in
the Philippines and who are employed by the United States armed forces or who are accompanying the
United States armed forces, such as employees of the American Red Cross and the United Services
Organization.

Article II

Respect for Law

It is the duty of the United States personnel to respect the laws of the Republic of the Philippines and to
abstain from any activity inconsistent with the spirit of this agreement, and, in particular, from any
political activity in the Philippines. The Government of the United States shall take all measures within
its authority to ensure that this is done.

Article III

Entry and Departure

1. The Government of the Philippines shall facilitate the admission of United States personnel and their
departure from the Philippines in connection with activities covered by this agreement.
2. United States military personnel shall be exempt from passport and visa regulations upon entering
and departing the Philippines.

3. The following documents only, which shall be presented on demand, shall be required in respect of
United States military personnel who enter the Philippines:

(a) personal identity card issued by the appropriate United States authority showing full name, date of
birth, rank or grade and service number (if any), branch of service and photograph;

(b) individual or collective document issued by the appropriate United States authority, authorizing the
travel or visit and identifying the individual or group as United States military personnel; and

(c) the commanding officer of a military aircraft or vessel shall present a declaration of health, and when
required by the cognizant representative of the Government of the Philippines, shall conduct a
quarantine inspection and will certify that the aircraft or vessel is free from quarantinable diseases. Any
quarantine inspection of United States aircraft or United States vessels or cargoes thereon shall be
conducted by the United States commanding officer in accordance with the international health
regulations as promulgated by the World Health Organization, and mutually agreed procedures.

4. United States civilian personnel shall be exempt from visa requirements but shall present, upon
demand, valid passports upon entry and departure of the Philippines.

5. If the Government of the Philippines has requested the removal of any United States personnel from
its territory, the United States authorities shall be responsible for receiving the person concerned within
its own territory or otherwise disposing of said person outside of the Philippines.

Article IV

Driving and Vehicle Registration

1. Philippine authorities shall accept as valid, without test or fee, a driving permit or license issued by
the appropriate United States authority to United States personnel for the operation of military or
official vehicles.

2. Vehicles owned by the Government of the United States need not be registered, but shall have
appropriate markings.

Article V

Criminal Jurisdiction

1. Subject to the provisions of this article:

(a) Philippine authorities shall have jurisdiction over United States personnel with respect to offenses
committed within the Philippines and punishable under the law of the Philippines.
(b) United States military authorities shall have the right to exercise within the Philippines all criminal
and disciplinary jurisdiction conferred on them by the military law of the United States over United
States personnel in the Philippines.

2. (a) Philippine authorities exercise exclusive jurisdiction over United States personnel with respect to
offenses, including offenses relating to the security of the Philippines, punishable under the laws of the
Philippines, but not under the laws of the United States.

(b) United States authorities exercise exclusive jurisdiction over United States personnel with respect to
offenses, including offenses relating to the security of the United States, punishable under the laws of
the United States, but not under the laws of the Philippines.

(c) For the purposes of this paragraph and paragraph 3 of this article, an offense relating to security
means:

(1) treason;

(2) sabotage, espionage or violation of any law relating to national defense.

3. In cases where the right to exercise jurisdiction is concurrent, the following rules shall apply:

(a) Philippine authorities shall have the primary right to exercise jurisdiction over all offenses committed
by United States personnel, except in cases provided for in paragraphs 1(b), 2 (b), and 3 (b) of this
Article.

(b) United States military authorities shall have the primary right to exercise jurisdiction over United
States personnel subject to the military law of the United States in relation to.

(1) offenses solely against the property or security of the United States or offenses solely against the
property or person of United States personnel; and

(2) offenses arising out of any act or omission done in performance of official duty.

(c) The authorities of either government may request the authorities of the other government to waive
their primary right to exercise jurisdiction in a particular case.

(d) Recognizing the responsibility of the United States military authorities to maintain good order and
discipline among their forces, Philippine authorities will, upon request by the United States, waive their
primary right to exercise jurisdiction except in cases of particular importance to the Philippines. If the
Government of the Philippines determines that the case is of particular importance, it shall
communicate such determination to the United States authorities within twenty (20) days after the
Philippine authorities receive the United States request.

(e) When the United States military commander determines that an offense charged by authorities of
the Philippines against United states personnel arises out of an act or omission done in the performance
of official duty, the commander will issue a certificate setting forth such determination. This certificate
will be transmitted to the appropriate authorities of the Philippines and will constitute sufficient proof of
performance of official duty for the purposes of paragraph 3(b)(2) of this Article. In those cases where
the Government of the Philippines believes the circumstances of the case require a review of the duty
certificate, United States military authorities and Philippine authorities shall consult immediately.
Philippine authorities at the highest levels may also present any information bearing on its validity.
United States military authorities shall take full account of the Philippine position. Where appropriate,
United States military authorities will take disciplinary or other action against offenders in official duty
cases, and notify the Government of the Philippines of the actions taken.

(f) If the government having the primary right does not exercise jurisdiction, it shall notify the authorities
of the other government as soon as possible.

(g) The authorities of the Philippines and the United States shall notify each other of the disposition of
all cases in which both the authorities of the Philippines and the United States have the right to exercise
jurisdiction.

4. Within the scope of their legal competence, the authorities of the Philippines and United States shall
assist each other in the arrest of United States personnel in the Philippines and in handling them over to
authorities who are to exercise jurisdiction in accordance with the provisions of this article.

5. United States military authorities shall promptly notify Philippine authorities of the arrest or
detention of United States personnel who are subject of Philippine primary or exclusive jurisdiction.
Philippine authorities shall promptly notify United States military authorities of the arrest or detention
of any United States personnel.

6. The custody of any United States personnel over whom the Philippines is to exercise jurisdiction shall
immediately reside with United States military authorities, if they so request, from the commission of
the offense until completion of all judicial proceedings. United States military authorities shall, upon
formal notification by the Philippine authorities and without delay, make such personnel available to
those authorities in time for any investigative or judicial proceedings relating to the offense with which
the person has been charged in extraordinary cases, the Philippine Government shall present its position
to the United States Government regarding custody, which the United States Government shall take into
full account. In the event Philippine judicial proceedings are not completed within one year, the United
States shall be relieved of any obligations under this paragraph. The one-year period will not include the
time necessary to appeal. Also, the one-year period will not include any time during which scheduled
trial procedures are delayed because United States authorities, after timely notification by Philippine
authorities to arrange for the presence of the accused, fail to do so.

7. Within the scope of their legal authority, United States and Philippine authorities shall assist each
other in the carrying out of all necessary investigation into offenses and shall cooperate in providing for
the attendance of witnesses and in the collection and production of evidence, including seizure and, in
proper cases, the delivery of objects connected with an offense.
8. When United States personnel have been tried in accordance with the provisions of this Article and
have been acquitted or have been convicted and are serving, or have served their sentence, or have had
their sentence remitted or suspended, or have been pardoned, they may not be tried again for the same
offense in the Philippines. Nothing in this paragraph, however, shall prevent United States military
authorities from trying United States personnel for any violation of rules of discipline arising from the
act or omission which constituted an offense for which they were tried by Philippine authorities.

9. When United States personnel are detained, taken into custody, or prosecuted by Philippine
authorities, they shall be accorded all procedural safeguards established by the law of the Philippines. At
the minimum, United States personnel shall be entitled:

(a) To a prompt and speedy trial;

(b) To be informed in advance of trial of the specific charge or charges made against them and to have
reasonable time to prepare a defense;

(c) To be confronted with witnesses against them and to cross examine such witnesses;

(d) To present evidence in their defense and to have compulsory process for obtaining witnesses;

(e) To have free and assisted legal representation of their own choice on the same basis as nationals of
the Philippines;

(f) To have the service of a competent interpreter; and

(g) To communicate promptly with and to be visited regularly by United States authorities, and to have
such authorities present at all judicial proceedings. These proceedings shall be public unless the court, in
accordance with Philippine laws, excludes persons who have no role in the proceedings.

10. The confinement or detention by Philippine authorities of United States personnel shall be carried
out in facilities agreed on by appropriate Philippine and United States authorities. United States
Personnel serving sentences in the Philippines shall have the right to visits and material assistance.

11. United States personnel shall be subject to trial only in Philippine courts of ordinary jurisdiction, and
shall not be subject to the jurisdiction of Philippine military or religious courts.

Article VI

Claims

1. Except for contractual arrangements, including United States foreign military sales letters of offer and
acceptance and leases of military equipment, both governments waive any and all claims against each
other for damage, loss or destruction to property of each others armed forces or for death or injury to
their military and civilian personnel arising from activities to which this agreement applies.

2. For claims against the United States, other than contractual claims and those to which paragraph 1
applies, the United States Government, in accordance with United States law regarding foreign claims,
will pay just and reasonable compensation in settlement of meritorious claims for damage, loss,
personal injury or death, caused by acts or omissions of United States personnel, or otherwise incident
to the non-combat activities of the United States forces.

Article VII

Importation and Exportation

1. United States Government equipment, materials, supplies, and other property imported into or
acquired in the Philippines by or on behalf of the United States armed forces in connection with
activities to which this agreement applies, shall be free of all Philippine duties, taxes and other similar
charges. Title to such property shall remain with the United States, which may remove such property
from the Philippines at any time, free from export duties, taxes, and other similar charges. The
exemptions provided in this paragraph shall also extend to any duty, tax, or other similar charges which
would otherwise be assessed upon such property after importation into, or acquisition within, the
Philippines. Such property may be removed from the Philippines, or disposed of therein, provided that
disposition of such property in the Philippines to persons or entities not entitled to exemption from
applicable taxes and duties shall be subject to payment of such taxes, and duties and prior approval of
the Philippine Government.

2. Reasonable quantities of personal baggage, personal effects, and other property for the personal use
of United States personnel may be imported into and used in the Philippines free of all duties, taxes and
other similar charges during the period of their temporary stay in the Philippines. Transfers to persons
or entities in the Philippines not entitled to import privileges may only be made upon prior approval of
the appropriate Philippine authorities including payment by the recipient of applicable duties and taxes
imposed in accordance with the laws of the Philippines. The exportation of such property and of
property acquired in the Philippines by United States personnel shall be free of all Philippine duties,
taxes, and other similar charges.

Article VIII

Movement of Vessels and Aircraft

1. Aircraft operated by or for the United States armed forces may enter the Philippines upon approval of
the Government of the Philippines in accordance with procedures stipulated in implementing
arrangements.

2. Vessels operated by or for the United States armed forces may enter the Philippines upon approval of
the Government of the Philippines. The movement of vessels shall be in accordance with international
custom and practice governing such vessels, and such agreed implementing arrangements as necessary.

3. Vehicles, vessels, and aircraft operated by or for the United States armed forces shall not be subject
to the payment of landing or port fees, navigation or over flight charges, or tolls or other use charges,
including light and harbor dues, while in the Philippines. Aircraft operated by or for the United States
armed forces shall observe local air traffic control regulations while in the Philippines. Vessels owned or
operated by the United States solely on United States Government non-commercial service shall not be
subject to compulsory pilotage at Philippine ports.

Article IX

Duration and Termination

This agreement shall enter into force on the date on which the parties have notified each other in
writing through the diplomatic channel that they have completed their constitutional requirements for
entry into force. This agreement shall remain in force until the expiration of 180 days from the date on
which either party gives the other party notice in writing that it desires to terminate the agreement.

Via these consolidated[11] petitions for certiorari and prohibition, petitioners - as legislators, non-

governmental organizations, citizens and taxpayers - assail the constitutionality of the VFA and impute
to herein respondents grave abuse of discretion in ratifying the agreement.

We have simplified the issues raised by the petitioners into the following:

Do petitioners have legal standing as concerned citizens, taxpayers, or legislators to question the
constitutionality of the VFA?

II

Is the VFA governed by the provisions of Section 21, Article VII or of Section 25, Article XVIII of the
Constitution?

III

Does the VFA constitute an abdication of Philippine sovereignty?

a. Are Philippine courts deprived of their jurisdiction to hear and try offenses committed by US military
personnel?

b. Is the Supreme Court deprived of its jurisdiction over offenses punishable by reclusion perpetua or
higher?

IV

Does the VFA violate:

a. the equal protection clause under Section 1, Article III of the Constitution?

b. the Prohibition against nuclear weapons under Article II, Section 8?

c. Section 28 (4), Article VI of the Constitution granting the exemption from taxes and duties for the
equipment, materials supplies and other properties imported into or acquired in the Philippines by, or
on behalf, of the US Armed Forces?
LOCUS STANDI

At the outset, respondents challenge petitioners standing to sue, on the ground that the latter have not
shown any interest in the case, and that petitioners failed to substantiate that they have sustained, or
will sustain direct injury as a result of the operation of the VFA. [12] Petitioners, on the other hand,
counter that the validity or invalidity of the VFA is a matter of transcendental importance which justifies
their standing.[13]

A party bringing a suit challenging the constitutionality of a law, act, or statute must show not only that
the law is invalid, but also that he has sustained or in is in immediate, or imminent danger of sustaining
some direct injury as a result of its enforcement, and not merely that he suffers thereby in some
indefinite way. He must show that he has been, or is about to be, denied some right or privilege to
which he is lawfully entitled, or that he is about to be subjected to some burdens or penalties by reason
of the statute complained of.[14]

In the case before us, petitioners failed to show, to the satisfaction of this Court, that they have
sustained, or are in danger of sustaining any direct injury as a result of the enforcement of the VFA. As
taxpayers, petitioners have not established that the VFA involves the exercise by Congress of its taxing
or spending powers.[15] On this point, it bears stressing that a taxpayers suit refers to a case where the
act complained of directly involves the illegal disbursement of public funds derived from taxation.
[16]
 Thus, in Bugnay Const. & Development Corp. vs. Laron[17], we held:

x x x it is exigent that the taxpayer-plaintiff sufficiently show that he would be benefited or injured by
the judgment or entitled to the avails of the suit as a real party in interest.  Before he can invoke the
power of judicial review, he must specifically prove that he has sufficient interest in preventing the
illegal expenditure of money raised by taxation and that he will sustain a direct injury as a result of the
enforcement of the questioned statute or contract. It is not sufficient that he has merely a general
interest common to all members of the public.

Clearly, inasmuch as no public funds raised by taxation are involved in this case, and in the absence of
any allegation by petitioners that public funds are being misspent or illegally expended, petitioners, as
taxpayers, have no legal standing to assail the legality of the VFA.

Similarly, Representatives Wigberto Taada, Agapito Aquino and Joker Arroyo, as petitioners-legislators,
do not possess the requisite locus standi to maintain the present suit. While this Court, in Phil.
Constitution Association vs. Hon. Salvador Enriquez,[18] sustained the legal standing of a member of the
Senate and the House of Representatives to question the validity of a presidential veto or a condition
imposed on an item in an appropriation bull, we cannot, at this instance, similarly uphold petitioners
standing as members of Congress, in the absence of a clear showing of any direct injury to their person
or to the institution to which they belong.
Beyond this, the allegations of impairment of legislative power, such as the delegation of the power of
Congress to grant tax exemptions, are more apparent than real. While it may be true that petitioners
pointed to provisions of the VFA which allegedly impair their legislative powers, petitioners failed
however to sufficiently show that they have in fact suffered direct injury.

In the same vein, petitioner Integrated Bar of the Philippines (IBP) is stripped of standing in these
cases. As aptly observed by the Solicitor General, the IBP lacks the legal capacity to bring this suit in the
absence of a board resolution from its Board of Governors authorizing its National President to
commence the present action.[19]

Notwithstanding, in view of the paramount importance and the constitutional significance of the issues
raised in the petitions, this Court, in the exercise of its sound discretion, brushes aside the procedural
barrier and takes cognizance of the petitions, as we have done in the early Emergency Powers Cases,
[20]
 where we had occasion to rule:

x x x ordinary citizens and taxpayers were allowed to question the constitutionality of several executive
orders issued by President Quirino although they were involving only an indirect and general interest
shared in common with the public. The Court dismissed the objection that they were not proper parties
and ruled that transcendental importance to the public of these cases demands that they be settled
promptly and definitely, brushing aside, if we must, technicalities of procedure. We have since then
applied the exception in many other cases. (Association of Small Landowners in the Philippines, Inc. v.
Sec. of Agrarian Reform, 175 SCRA 343). (Underscoring Supplied)

This principle was reiterated in the subsequent cases of Gonzales vs. COMELEC,[21] Daza vs. Singson,
[22]
 and Basco vs. Phil. Amusement and Gaming Corporation,[23] where we emphatically held:

Considering however the importance to the public of the case at bar, and in keeping with the Courts
duty, under the 1987 Constitution, to determine whether or not the other branches of the government
have kept themselves within the limits of the Constitution and the laws and that they have not abused
the discretion given to them, the Court has brushed aside technicalities of procedure and has taken
cognizance of this petition. x x x

Again, in the more recent case of Kilosbayan vs. Guingona, Jr.,[24] thisCourt ruled that in cases of
transcendental importance, the Court may relax the standing requirements and allow a suit to prosper
even where there is no direct injury to the party claiming the right of judicial review.

Although courts generally avoid having to decide a constitutional question based on the doctrine of
separation of powers, which enjoins upon the departments of the government a becoming respect for
each others acts,[25] this Court nevertheless resolves to take cognizance of the instant petitions.
APPLICABLE CONSTITUTIONAL PROVISION

One focal point of inquiry in this controversy is the determination of which provision of the Constitution
applies, with regard to the exercise by the senate of its constitutional power to concur with the
VFA. Petitioners argue that Section 25, Article XVIII is applicable considering that the VFA has for its
subject the presence of foreign military troops in the Philippines.Respondents, on the contrary, maintain
that Section 21, Article VII should apply inasmuch as the VFA is not a basing arrangement but an
agreement which involves merely the temporary visits of United States personnel engaged in joint
military exercises.

The 1987 Philippine Constitution contains two provisions requiring the concurrence of the Senate on
treaties or international agreements. Section 21, Article VII, which herein respondents invoke, reads:

No treaty or international agreement shall be valid and effective unless concurred in by at least two-
thirds of all the Members of the Senate.

Section 25, Article XVIII, provides:

After the expiration in 1991 of the Agreement between the Republic of the Philippines and the United
States of America concerning Military Bases, foreign military bases, troops, or facilities shall not be
allowed in the Philippines except under a treaty duly concurred in by the senate and, when the Congress
so requires, ratified by a majority of the votes cast by the people in a national referendum held for that
purpose, and recognized as a treaty by the other contracting State.

Section 21, Article VII deals with treatise or international agreements in general, in which case, the
concurrence of at least two-thirds (2/3) of all the Members of the Senate is required to make the subject
treaty, or international agreement, valid and binding on the part of the Philippines. This provision lays
down the general rule on treatise or international agreements and applies to any form of treaty with a
wide variety of subject matter, such as, but not limited to, extradition or tax treatise or those economic
in nature. All treaties or international agreements entered into by the Philippines, regardless of subject
matter, coverage, or particular designation or appellation, requires the concurrence of the Senate to be
valid and effective.

In contrast, Section 25, Article XVIII is a special provision that applies to treaties which involve the
presence of foreign military bases, troops or facilities in the Philippines. Under this provision, the
concurrence of the Senate is only one of the requisites to render compliance with the constitutional
requirements and to consider the agreement binding on the Philippines.Section 25, Article XVIII further
requires that foreign military bases, troops, or facilities may be allowed in the Philippines only by virtue
of a treaty duly concurred in by the Senate, ratified by a majority of the votes cast in a national
referendum held for that purpose if so required by Congress, and recognized as such by the other
contracting state.

It is our considered view that both constitutional provisions, far from contradicting each other, actually
share some common ground. These constitutional provisions both embody phrases in the negative and
thus, are deemed prohibitory in mandate and character. In particular, Section 21 opens with the clause
No treaty x x x, and Section 25 contains the phrase shall not be allowed.  Additionally, in both instances,
the concurrence of the Senate is indispensable to render the treaty or international agreement valid and
effective.
To our mind, the fact that the President referred the VFA to the Senate under Section 21, Article VII, and
that the Senate extended its concurrence under the same provision, is immaterial. For in either case,
whether under Section 21, Article VII or Section 25, Article XVIII, the fundamental law is crystalline that
the concurrence of the Senate is mandatory to comply with the strict constitutional requirements.

On the whole, the VFA is an agreement which defines the treatment of United States troops and
personnel visiting the Philippines. It provides for the guidelines to govern such visits of military
personnel, and further defines the rights of the United States and the Philippine government in the
matter of criminal jurisdiction, movement of vessel and aircraft, importation and exportation of
equipment, materials and supplies.

Undoubtedly, Section 25, Article XVIII, which specifically deals with treaties involving foreign military
bases, troops, or facilities, should apply in the instant case. To a certain extent and in a limited sense,
however, the provisions of section 21, Article VII will find applicability with regard to the issue and for
the sole purpose of determining the number of votes required to obtain the valid concurrence of the
Senate, as will be further discussed hereunder.

It is a finely-imbedded principle in statutory construction that a special provision or law prevails over a
general one. Lex specialis derogat generali. Thus, where there is in the same statute a particular
enactment and also a general one which, in its most comprehensive sense, would include what is
embraced in the former, the particular enactment must be operative, and the general enactment must
be taken to affect only such cases within its general language which are not within the provision of the
particular enactment.[26]

In Leveriza vs. Intermediate Appellate Court,[27] we enunciated:

x x x that another basic principle of statutory construction mandates that general legislation must give
way to a special legislation on the same subject, and generally be so interpreted as to embrace only
cases in which the special provisions are not applicable (Sto. Domingo vs. de los Angeles, 96 SCRA 139),
that a specific statute prevails over a general statute (De Jesus vs. People, 120 SCRA 760) and that where
two statutes are of equal theoretical application to a particular case, the one designed therefor specially
should prevail (Wil Wilhensen Inc. vs. Baluyot, 83 SCRA 38).

Moreover, it is specious to argue that Section 25, Article XVIII is inapplicable to mere transient
agreements for the reason that there is no permanent placing of structure for the establishment of a
military base. On this score, the Constitution makes no distinction between transient and
permanent. Certainly, we find nothing in Section 25, Article XVIII that requiresforeign troops or
facilities to be stationed or placed permanently in the Philippines.

It is a rudiment in legal hermenuetics that when no distinction is made by law, the Court should not
distinguish- Ubi lex non distinguit nec nos distinguire debemos.

In like manner, we do not subscribe to the argument that Section 25, Article XVIII is not controlling since
no foreign military bases, but merely foreign troops and facilities, are involved in the VFA. Notably, a
perusal of said constitutional provision reveals that the proscription covers foreign military bases,
troops, or facilities. Stated differently, this prohibition is not limited to the entry of troops and facilities
without any foreign bases being established. The clause does not refer to foreign military bases,
troops, or facilities collectively but treats them as separate and independent subjects. The use of comma
and the disjunctive word or clearly signifies disassociation and independence of one thing from the
others included in the enumeration,[28]such that, the provision contemplates three different situations -
a military treaty the subject of which could be either (a) foreign bases, (b) foreign troops, or (c) foreign
facilities - any of the three standing alone places it under the coverage of Section 25, Article XVIII.

To this end, the intention of the framers of the Charter, as manifested during the deliberations of the
1986 Constitutional Commission, is consistent with this interpretation:

MR. MAAMBONG. I just want to address a question or two to Commissioner Bernas.

This formulation speaks of three things: foreign military bases, troops or facilities. My first question is: If
the country does enter into such kind of a treaty, must it cover the three-bases, troops or facilities-or
could the treaty entered into cover only one or two?

FR. BERNAS. Definitely, it can cover only one. Whether it covers only one or it covers three, the
requirement will be the same.

MR. MAAMBONG. In other words, the Philippine government can enter into a treaty covering not
bases but merely troops?

FR. BERNAS. Yes.

MR. MAAMBONG. I cannot find any reason why the government can enter into a treaty covering only
troops.

FR. BERNAS. Why not? Probably if we stretch our imagination a little bit more, we will find some. We
just want to cover everything.[29] (Underscoring Supplied)

Moreover, military bases established within the territory of another state is no longer viable because of
the alternatives offered by new means and weapons of warfare such as nuclear weapons, guided
missiles as well as huge sea vessels that can stay afloat in the sea even for months and years without
returning to their home country. These military warships are actually used as substitutes for a land-
home base not only of military aircraft but also of military personnel and facilities.  Besides, vessels are
mobile as compared to a land-based military headquarters.

At this juncture, we shall then resolve the issue of whether or not the requirements of Section 25 were
complied with when the Senate gave its concurrence to the VFA.

Section 25, Article XVIII disallows foreign military bases, troops, or facilities in the country, unless the
following conditions are sufficiently met, viz: (a) it must be under a treaty; (b) the treaty must be duly
concurred in by the Senate and, when so required by congress, ratified by a majority of the votes cast
by the people in a national referendum; and (c) recognized as a treaty by the other contracting state.

There is no dispute as to the presence of the first two requisites in the case of the VFA.  The concurrence
handed by the Senate through Resolution No. 18 is in accordance with the provisions of the
Constitution, whether under the general requirement in Section 21, Article VII, or the specific mandate
mentioned in Section 25, Article XVIII, the provision in the latter article requiring ratification by a
majority of the votes cast in a national referendum being unnecessary since Congress has not required
it.

As to the matter of voting, Section 21, Article VII particularly requires that a treaty or international
agreement, to be valid and effective, must be concurred in by at least two-thirds of all the members of
the Senate. On the other hand, Section 25, Article XVIII simply provides that the treaty be  duly
concurred in by the Senate.

Applying the foregoing constitutional provisions, a two-thirds vote of all the members of the Senate is
clearly required so that the concurrence contemplated by law may be validly obtained and deemed
present. While it is true that Section 25, Article XVIII requires, among other things, that the treaty-the
VFA, in the instant case-be duly concurred in by the Senate, it is very true however that said provision
must be related and viewed in light of the clear mandate embodied in Section 21, Article VII, which in
more specific terms, requires that the concurrence of a treaty, or international agreement, be made by a
two -thirds vote of all the members of the Senate. Indeed, Section 25, Article XVIII must not be treated
in isolation to section 21, Article, VII.

As noted, the concurrence requirement under Section 25, Article XVIII must be construed in relation to
the provisions of Section 21, Article VII. In a more particular language, the concurrence of the Senate
contemplated under Section 25, Article XVIII means that at least two-thirds of all the members of the
Senate favorably vote to concur with the treaty-the VFA in the instant case.

Under these circumstances, the charter provides that the Senate shall be composed of twenty-four (24)
Senators.[30] Without a tinge of doubt, two-thirds (2/3) of this figure, or not less than sixteen (16)
members, favorably acting on the proposal is an unquestionable compliance with the requisite number
of votes mentioned in Section 21 of Article VII. The fact that there were actually twenty-three (23)
incumbent Senators at the time the voting was made, [31] will not alter in any significant way the
circumstance that more than two-thirds of the members of the Senate concurred with the proposed
VFA, even if the two-thirds vote requirement is based on this figure of actual members (23). In this
regard, the fundamental law is clear that two-thirds of the 24 Senators, or at least 16 favorable votes,
suffice so as to render compliance with the strict constitutional mandate of giving concurrence to the
subject treaty.

Having resolved that the first two requisites prescribed in Section 25, Article XVIII are present, we shall
now pass upon and delve on the requirement that the VFA should be recognized as a treaty by the
United States of America.
Petitioners content that the phrase recognized as a treaty, embodied in section 25, Article XVIII, means
that the VFA should have the advice and consent of the United States Senate pursuant to its own
constitutional process, and that it should not be considered merely an executive agreement by the
United States.

In opposition, respondents argue that the letter of United States Ambassador Hubbard stating that the
VFA is binding on the United States Government is conclusive, on the point that the VFA is recognized as
a treaty by the United States of America. According to respondents, the VFA, to be binding, must only be
accepted as a treaty by the United States.

This Court is of the firm view that the phrase recognized as a treaty means that the other contracting
party accepts or acknowledges the agreement as a treaty. [32] To require the other contracting state, the
United States of America in this case, to submit the VFA to the United States Senate for concurrence
pursuant to its Constitution,[33] is to accord strict meaning to the phrase.

Well-entrenched is the principle that the words used in the Constitution are to be given their ordinary
meaning except where technical terms are employed, in which case the significance thus attached to
them prevails. Its language should be understood in the sense they have in common use. [34]

Moreover, it is inconsequential whether the United States treats the VFA only as an executive
agreement because, under international law, an executive agreement is as binding as a treaty. [35] To be
sure, as long as the VFA possesses the elements of an agreement under international law, the said
agreement is to be taken equally as a treaty.

A treaty, as defined by the Vienna Convention on the Law of Treaties, is an international instrument
concluded between States in written form and governed by international law, whether embodied in a
single instrument or in two or more related instruments, and whatever its particular designation.
[36]
 There are many other terms used for a treaty or international agreement, some of which are: act,
protocol, agreement, compromis d arbitrage, concordat, convention, declaration, exchange of notes,
pact, statute, charter and modus vivendi. All writers, from Hugo Grotius onward, have pointed out that
the names or titles of international agreements included under the general term treaty have little or no
legal significance. Certain terms are useful, but they furnish little more than mere description. [37]

Article 2(2) of the Vienna Convention provides that the provisions of paragraph 1 regarding the use of
terms in the present Convention are without prejudice to the use of those terms, or to the meanings
which may be given to them in the internal law of the State.

Thus, in international law, there is no difference between treaties and executive agreements in their
binding effect upon states concerned, as long as the negotiating functionaries have remained within
their powers.[38] International law continues to make no distinction between treaties and executive
agreements: they are equally binding obligations upon nations. [39]
In our jurisdiction, we have recognized the binding effect of executive agreements even without the
concurrence of the Senate or Congress. In Commissioner of Customs vs. Eastern Sea Trading,[40] we had
occasion to pronounce:

x x x the right of the Executive to enter into binding agreements without the necessity of subsequent
congressional approval has been confirmed by long usage. From the earliest days of our history we have
entered into executive agreements covering such subjects as commercial and consular relations, most-
favored-nation rights, patent rights, trademark and copyright protection, postal and navigation
arrangements and the settlement of claims. The validity of these has never been seriously questioned by
our courts.

x x x x x x x x x

Furthermore, the United States Supreme Court has expressly recognized the validity and
constitutionality of executive agreements entered into without Senate approval. (39 Columbia Law
Review, pp. 753-754) (See, also, U.S. vs. Curtis Wright Export Corporation, 299 U.S. 304, 81 L. ed. 255;
U.S. vs. Belmont, 301 U.S. 324, 81 L. ed. 1134; U.S. vs. Pink, 315 U.S. 203, 86 L. ed. 796; Ozanic vs. U.S.
188 F. 2d. 288; Yale Law Journal, Vol. 15 pp. 1905-1906; California Law Review, Vol. 25, pp. 670-675;
Hyde on International Law [revised Edition], Vol. 2, pp. 1405, 1416-1418; willoughby on the U.S.
Constitution Law, Vol. I [2d ed.], pp. 537-540; Moore, International Law Digest, Vol. V, pp. 210-218;
Hackworth, International Law Digest, Vol. V, pp. 390-407). (Italics Supplied) (Emphasis Ours)

The deliberations of the Constitutional Commission which drafted the 1987 Constitution is enlightening
and highly-instructive:

MR. MAAMBONG. Of course it goes without saying that as far as ratification of the other state is
concerned, that is entirely their concern under their own laws.

FR. BERNAS. Yes, but we will accept whatever they say. If they say that we have done everything to
make it a treaty, then as far as we are concerned, we will accept it as a treaty. [41]

The records reveal that the United States Government, through Ambassador Thomas C. Hubbard, has
stated that the United States government has fully committed to living up to the terms of the VFA. [42] For
as long as the united States of America accepts or acknowledges the VFA as a treaty, and binds itself
further to comply with its obligations under the treaty, there is indeed marked compliance with the
mandate of the Constitution.

Worth stressing too, is that the ratification, by the President, of the VFA and the concurrence of the
Senate should be taken as a clear an unequivocal expression of our nations consent to be bound by said
treaty, with the concomitant duty to uphold the obligations and responsibilities embodied thereunder.

Ratification is generally held to be an executive act, undertaken by the head of the state or of the
government, as the case may be, through which the formal acceptance of the treaty is proclaimed. [43] A
State may provide in its domestic legislation the process of ratification of a treaty. The consent of the
State to be bound by a treaty is expressed by ratification when: (a) the treaty provides for such
ratification, (b) it is otherwise established that the negotiating States agreed that ratification should be
required, (c) the representative of the State has signed the treaty subject to ratification, or (d) the
intention of the State to sign the treaty subject to ratification appears from the full powers of its
representative, or was expressed during the negotiation. [44]

In our jurisdiction, the power to ratify is vested in the President and not, as commonly believed, in the
legislature. The role of the Senate is limited only to giving or withholding its consent, or concurrence, to
the ratification.[45]

With the ratification of the VFA, which is equivalent to final acceptance, and with the exchange of notes
between the Philippines and the United States of America, it now becomes obligatory and incumbent on
our part, under the principles of international law, to be bound by the terms of the agreement. Thus, no
less than Section 2, Article II of the Constitution, [46]declares that the Philippines adopts the generally
accepted principles of international law as part of the law of the land and adheres to the policy of peace,
equality, justice, freedom, cooperation and amity with all nations.

As a member of the family of nations, the Philippines agrees to be bound by generally accepted rules for
the conduct of its international relations. While the international obligation devolves upon the state and
not upon any particular branch, institution, or individual member of its government, the Philippines is
nonetheless responsible for violations committed by any branch or subdivision of its government or any
official thereof. As an integral part of the community of nations, we are responsible to assure that our
government, Constitution and laws will carry out our international obligation. [47] Hence, we cannot
readily plead the Constitution as a convenient excuse for non-compliance with our obligations, duties
and responsibilities under international law.

Beyond this, Article 13 of the Declaration of Rights and Duties of States adopted by the International
Law Commission in 1949 provides: Every State has the duty to carry out in good faith its obligations
arising from treaties and other sources of international law, and it may not invoke provisions in its
constitution or its laws as an excuse for failure to perform this duty. [48]

Equally important is Article 26 of the convention which provides that Every treaty in force is binding
upon the parties to it and must be performed by them in good faith. This is known as the principle
of pacta sunt servanda which preserves the sanctity of treaties and have been one of the most
fundamental principles of positive international law, supported by the jurisprudence of international
tribunals.[49]
NO GRAVE ABUSE OF DISCRETION

In the instant controversy, the President, in effect, is heavily faulted for exercising a power and
performing a task conferred upon him by the Constitution-the power to enter into and ratify
treaties. Through the expediency of Rule 65 of the Rules of Court, petitioners in these consolidated
cases impute grave abuse of discretion on the part of the chief Executive in ratifying the VFA, and
referring the same to the Senate pursuant to the provisions of Section 21, Article VII of the Constitution.
On this particular matter, grave abuse of discretion implies such capricious and whimsical exercise of
judgment as is equivalent to lack of jurisdiction, or, when the power is exercised in an arbitrary or
despotic manner by reason of passion or personal hostility, and it must be so patent and gross as to
amount to an evasion of positive duty enjoined or to act at all in contemplation of law. [50]

By constitutional fiat and by the intrinsic nature of his office, the President, as head of State, is the sole
organ and authority in the external affairs of the country. In many ways, the President is the chief
architect of the nations foreign policy; his dominance in the field of foreign relations is (then) conceded.
[51]
 Wielding vast powers an influence, his conduct in the external affairs of the nation, as Jefferson
describes, is executive altogether."[52]

As regards the power to enter into treaties or international agreements, the Constitution vests the same
in the President, subject only to the concurrence of at least two-thirds vote of all the members of the
Senate. In this light, the negotiation of the VFA and the subsequent ratification of the agreement are
exclusive acts which pertain solely to the President, in the lawful exercise of his vast executive and
diplomatic powers granted him no less than by the fundamental law itself. Into the field of negotiation
the Senate cannot intrude, and Congress itself is powerless to invade it.[53] Consequently, the acts or
judgment calls of the President involving the VFA-specifically the acts of ratification and entering into a
treaty and those necessary or incidental to the exercise of such principal acts - squarely fall within the
sphere of his constitutional powers and thus, may not be validly struck down, much less calibrated by
this Court, in the absence of clear showing of grave abuse of power or discretion.

It is the Courts considered view that the President, in ratifying the VFA and in submitting the same to the
Senate for concurrence, acted within the confines and limits of the powers vested in him by the
Constitution. It is of no moment that the President, in the exercise of his wide latitude of discretion and
in the honest belief that the VFA falls within the ambit of Section 21, Article VII of the Constitution,
referred the VFA to the Senate for concurrence under the aforementioned provision. Certainly, no abuse
of discretion, much less a grave, patent and whimsical abuse of judgment, may be imputed to the
President in his act of ratifying the VFA and referring the same to the Senate for the purpose of
complying with the concurrence requirement embodied in the fundamental law. In doing so, the
President merely performed a constitutional task and exercised a prerogative that chiefly pertains to the
functions of his office. Even if he erred in submitting the VFA to the Senate for concurrence under the
provisions of Section 21 of Article VII, instead of Section 25 of Article XVIII of the Constitution, still, the
President may not be faulted or scarred, much less be adjudged guilty of committing an abuse of
discretion in some patent, gross, and capricious manner.

For while it is conceded that Article VIII, Section 1, of the Constitution has broadened the scope of
judicial inquiry into areas normally left to the political departments to decide, such as those relating to
national security, it has not altogether done away with political questions such as those which arise in
the field of foreign relations.[54] The High Tribunals function, as sanctioned by Article VIII, Section 1, is
merely (to) check whether or not the governmental branch or agency has gone beyond the constitutional
limits of its jurisdiction, not that it erred or has a different view. In the absence of a showing (of) grave
abuse of discretion amounting to lack of jurisdiction, there is no occasion for the Court to exercise its
corrective powerIt has no power to look into what it thinks is apparent error. [55]

As to the power to concur with treaties, the constitution lodges the same with the Senate alone. Thus,
once the Senate[56] performs that power, or exercises its prerogative within the boundaries prescribed by
the Constitution, the concurrence cannot, in like manner, be viewed to constitute an abuse of power,
much less grave abuse thereof. Corollarily, the Senate, in the exercise of its discretion and acting within
the limits of such power, may not be similarly faulted for having simply performed a task conferred and
sanctioned by no less than the fundamental law.

For the role of the Senate in relation to treaties is essentially legislative in character; [57] the Senate, as an
independent body possessed of its own erudite mind, has the prerogative to either accept or reject the
proposed agreement, and whatever action it takes in the exercise of its wide latitude of discretion,
pertains to the wisdom rather than the legality of the act. In this sense, the Senate partakes a principal,
yet delicate, role in keeping the principles of separation of powers and of checks and balances alive and
vigilantly ensures that these cherished rudiments remain true to their form in a democratic government
such as ours. The Constitution thus animates, through this treaty-concurring power of the Senate, a
healthy system of checks and balances indispensable toward our nations pursuit of political maturity
and growth. True enough, rudimentary is the principle that matters pertaining to the wisdom of a
legislative act are beyond the ambit and province of the courts to inquire.

In fine, absent any clear showing of grave abuse of discretion on the part of respondents, this Court- as
the final arbiter of legal controversies and staunch sentinel of the rights of the people - is then without
power to conduct an incursion and meddle with such affairs purely executive and legislative in character
and nature. For the Constitution no less, maps out the distinct boundaries and limits the metes and
bounds within which each of the three political branches of government may exercise the powers
exclusively and essentially conferred to it by law.

WHEREFORE, in light of the foregoing disquisitions, the instant petitions are hereby DISMISSED.

SO ORDERED.
ARTHUR D. LIM and PAULINO R. ERSANDO, petitioners, vs. HONORABLE EXECUTIVE SECRETARY as
alter ego of HER EXCELLENCY GLORIA MACAPAGAL-ARROYO, and HONORABLE ANGELO REYES in his
capacity as Secretary of National Defense, respondents.

SANLAKAS and PARTIDO NG MANGGAGAWA, petitioners-intervenors, vs. GLORIA MACAPAGAL-

ARROYO, ALBERTO ROMULO, ANGELO REYES, respondents.

DECISION

DE LEON, JR., J.:

This case involves a petition for certiorari and prohibition as well as a petition-in-intervention, praying
that respondents be restrained from proceeding with the so-called Balikatan 02-1 and that after due
notice and hearing, that judgment be rendered issuing a permanent writ of injunction and/or
prohibition against the deployment of U.S. troops in Basilan and Mindanao for being illegal and in
violation of the Constitution.

The facts are as follows:

Beginning January of this year 2002, personnel from the armed forces of the United States of America
started arriving in Mindanao to take part, in conjunction with the Philippine military, in Balikatan 02-1.
These so-called Balikatan exercises are the largest combined training operations involving Filipino and
American troops. In theory, they are a simulation of joint military maneuvers pursuant to the Mutual
Defense Treaty,[1] a bilateral defense agreement entered into by the Philippines and the United States
in 1951.

Prior to the year 2002, the last Balikatan was held in 1995. This was due to the paucity of any formal
agreement relative to the treatment of United States personnel visiting the Philippines. In the
meantime, the respective governments of the two countries agreed to hold joint exercises on a reduced
scale. The lack of consensus was eventually cured when the two nations concluded the Visiting Forces
Agreement (VFA) in 1999.

The entry of American troops into Philippine soil is proximately rooted in the international anti-terrorism
campaign declared by President George W. Bush in reaction to the tragic events that occurred on
September 11, 2001. On that day, three (3) commercial aircrafts were hijacked, flown and smashed into
the twin towers of the World Trade Center in New York City and the Pentagon building in Washington,
D.C. by terrorists with alleged links to the al-Qaeda (the Base), a Muslim extremist organization headed
by the infamous Osama bin Laden. Of no comparable historical parallels, these acts caused billions of
dollars worth of destruction of property and incalculable loss of hundreds of lives.

On February 1, 2002, petitioners Arthur D. Lim and Paulino P. Ersando filed this petition for certiorari
and prohibition, attacking the constitutionality of the joint exercise.[2] They were joined subsequently
by SANLAKAS and PARTIDO NG MANGGAGAWA, both party-list organizations, who filed a petition-in-
intervention on February 11, 2002.
Lim and Ersando filed suit in their capacities as citizens, lawyers and taxpayers. SANLAKAS and PARTIDO,
on the other hand, aver that certain members of their organization are residents of Zamboanga and
Sulu, and hence will be directly affected by the operations being conducted in Mindanao. They likewise
pray for a relaxation on the rules relative to locus standi citing the unprecedented importance of the
issue involved.

On February 7, 2002 the Senate conducted a hearing on the Balikatan exercise wherein Vice-President
Teofisto T. Guingona, Jr., who is concurrently Secretary of Foreign Affairs, presented the Draft Terms of
Reference (TOR).[3] Five days later, he approved the TOR, which we quote hereunder:

I. POLICY LEVEL

1. The Exercise shall be Consistent with the Philippine Constitution and all its activities shall be in
consonance with the laws of the land and the provisions of the RP-US Visiting Forces Agreement (VFA).

2. The conduct of this training Exercise is in accordance with pertinent United Nations resolutions
against global terrorism as understood by the respective parties.

3. No permanent US basing and support facilities shall be established. Temporary structures such as
those for troop billeting, classroom instruction and messing may be set up for use by RP and US Forces
during the Exercise.

4. The Exercise shall be implemented jointly by RP and US Exercise Co-Directors under the authority of
the Chief of Staff, AFP. In no instance will US Forces operate independently during field training
exercises (FTX). AFP and US Unit Commanders will retain command over their respective forces under
the overall authority of the Exercise Co-Directors. RP and US participants shall comply with operational
instructions of the APP during the FTX.

5. The exercise shall be conducted and completed within a period of not more than six months, with the
projected participation of 660 US personnel and 3,800 RP Forces. The Chief of Staff, AFP shall direct the
Exercise Co-Directors to wind up and terminate the Exercise and other activities within the six month
Exercise period.

6. The Exercise is a mutual counter-terrorism advising, assisting and training Exercise relative to
Philippine efforts against the ASG, and will be conducted on the Island of Basilan. Further advising,
assisting and training exercises shall be conducted in Malagutay and the Zamboanga area. Related
activities in Cebu will be for support of the Exercise.

7. Only 160 US Forces organized in 12-man Special Forces Teams shall be deployed with AFP field
commanders. The US teams shall remain at the Battalion Headquarters and, when approved, Company
Tactical headquarters where they can observe and assess the performance of the APP Forces.
8. US exercise participants shall not engage in combat, without prejudice to their right of self-defense.

9. These terms of Reference are for purposes of this Exercise only and do not create additional legal
obligations between the US Government and the Republic of the Philippines.

II. EXERCISE LEVEL

1. TRAINING

a. The Exercise shall involve the conduct of mutual military assisting, advising and training of RP and US
Forces with the primary objective of enhancing the operational capabilities of both forces to combat
terrorism.

b. At no time shall US Forces operate independently within RP territory.

c. Flight plans of all aircraft involved in the exercise will comply with the local air traffic regulations.

2. ADMINISTRATION & LOGISTICS

a. RP and US participants shall be given a country and area briefing at the start of the Exercise. This
briefing shall acquaint US Forces on the culture and sensitivities of the Filipinos and the provisions of the
VFA. The briefing shall also promote the full cooperation on the part of the RP and US participants for
the successful conduct of the Exercise.

b. RP and US participating forces may share, in accordance with their respective laws and regulations, in
the use of their resources, equipment and other assets. They will use their respective logistics channels.

c. Medical evaluation shall be jointly planned and executed utilizing RP and US assets and resources.

d. Legal liaison officers from each respective party shall be appointed by the Exercise Directors.

3. PUBLIC AFFAIRS

a. Combined RP-US Information Bureaus shall be established at the Exercise Directorate in Zamboanga
City and at GHQ, AFP in Camp Aguinaldo, Quezon City.

b. Local media relations will be the concern of the AFP and all public affairs guidelines shall be jointly
developed by RP and US Forces.

c. Socio-Economic Assistance Projects shall be planned and executed jointly by RP and US Forces in
accordance with their respective laws and regulations, and in consultation with community and local
government officials.

Contemporaneously, Assistant Secretary for American Affairs Minerva Jean A. Falcon and United States
Charge d Affaires Robert Fitts signed the Agreed Minutes of the discussion between the Vice-President
and Assistant Secretary Kelly.[4]
Petitioners Lim and Ersando present the following arguments:

THE PHILIPPINES AND THE UNITED STATES SIGNED THE MUTUAL DEFENSE TREATY (MDT) in 1951 TO
PROVIDE MUTUAL MILITARY ASSISTANCE IN ACCORDANCE WITH THE CONSTITUTIONAL PROCESSES OF
EACH COUNTRY ONLY IN THE CASE OF AN ARMED ATTACK BY AN EXTERNAL AGGRESSOR, MEANING A
THIRD COUNTRY AGAINST ONE OF THEM.

BY NO STRETCH OF THE IMAGINATION CAN IT BE SAID THAT THE ABU SAYYAF BANDITS IN BASILAN
CONSTITUTE AN EXTERNAL ARMED FORCE THAT HAS SUBJECT THE PHILIPPINES TO AN ARMED
EXTERNAL ATTACK TO WARRANT U.S. MILITARY ASSISTANCE UNDER THE MDT OF 1951.

II

NEITHER DOES THE VFA OF 1999 AUTHORIZE AMERICAN SOLDIERS TO ENGAGE IN COMBAT
OPERATIONS IN PHILIPPINE TERRITORY, NOT EVEN TO FIRE BACK IF FIRED UPON.

Substantially the same points are advanced by petitioners SANLAKAS and PARTIDO.

In his Comment, the Solicitor General points to infirmities in the petitions regarding, inter alia, Lim and
Ersandos standing to file suit, the prematurity of the action, as well as the impropriety of availing of
certiorari to ascertain a question of fact. Anent their locus standi, the Solicitor General argues that first,
they may not file suit in their capacities as taxpayers inasmuch as it has not been shown that Balikatan
02-1 involves the exercise of Congress taxing or spending powers. Second, their being lawyers does not
invest them with sufficient personality to initiate the case, citing our ruling in Integrated Bar of the
Philippines v. Zamora.[5] Third, Lim and Ersando have failed to demonstrate the requisite showing of
direct personal injury. We agree.

It is also contended that the petitioners are indulging in speculation. The Solicitor General is of the view
that since the Terms of Reference are clear as to the extent and duration of Balikatan 02-1, the issues
raised by petitioners are premature, as they are based only on a fear of future violation of the Terms of
Reference. Even petitioners resort to a special civil action for certiorari is assailed on the ground that the
writ may only issue on the basis of established facts.

Apart from these threshold issues, the Solicitor General claims that there is actually no question of
constitutionality involved. The true object of the instant suit, it is said, is to obtain an interpretation of
the VFA. The Solicitor General asks that we accord due deference to the executive determination that
Balikatan 02-1 is covered by the VFA, considering the Presidents monopoly in the field of foreign
relations and her role as commander-in-chief of the Philippine armed forces.

Given the primordial importance of the issue involved, it will suffice to reiterate our view on this point in
a related case:
Notwithstanding, in view of the paramount importance and the constitutional significance of the issues
raised in the petitions, this Court, in the exercise of its sound discretion, brushes aside the procedural
barrier and takes cognizance of the petitions, as we have done in the early Emergency Powers Cases,
where we had occasion to rule:

x x x ordinary citizens and taxpayers were allowed to question the constitutionality of several executive
orders issued by President Quirino although they were involving only an indirect and general interest
shared in common with the public. The Court dismissed the objection that they were not proper parties
and ruled that transcendental importance to the public of these cases demands that they be settled
promptly and definitely, brushing aside, if we must, technicalities of procedure. We have since then
applied the exception in many other cases. [citation omitted]

This principle was reiterated in the subsequent cases of Gonzales vs. COMELEC, Daza vs. Singson, and
Basco vs. Phil. Amusement and Gaming Corporation, where we emphatically held:

Considering however the importance to the public of the case at bar, and in keeping with the Courts
duty, under the 1987 Constitution, to determine whether or not the other branches of the government
have kept themselves within the limits of the Constitution and the laws that they have not abused the
discretion given to them, the Court has brushed aside technicalities of procedure and has taken
cognizance of this petition. xxx

Again, in the more recent case of Kilosbayan vs. Guingona, Jr., this Court ruled that in cases of
transcendental importance, the court may relax the standing requirements and allow a suit to prosper
even where there is no direct injury to the party claiming the right of judicial review.

Although courts generally avoid having to decide a constitutional question based on the doctrine of
separation of powers, which enjoins upon the departments of the government a becoming respect for
each others acts, this Court nevertheless resolves to take cognizance of the instant petitions.[6]

Hence, we treat with similar dispatch the general objection to the supposed prematurity of the action.
At any rate, petitioners' concerns on the lack of any specific regulation on the latitude of activity US
personnel may undertake and the duration of their stay has been addressed in the Terms of Reference.

The holding of Balikatan 02-1 must be studied in the framework of the treaty antecedents to which the
Philippines bound itself. The first of these is the Mutual Defense Treaty (MDT, for brevity). The MDT has
been described as the core of the defense relationship between the Philippines and its traditional ally,
the United States. Its aim is to enhance the strategic and technological capabilities of our armed forces
through joint training with its American counterparts; the Balikatan is the largest such training exercise
directly supporting the MDTs objectives. It is this treaty to which the VFA adverts and the obligations
thereunder which it seeks to reaffirm.

The lapse of the US-Philippine Bases Agreement in 1992 and the decision not to renew it created a
vacuum in US-Philippine defense relations, that is, until it was replaced by the Visiting Forces
Agreement. It should be recalled that on October 10, 2000, by a vote of eleven to three, this court
upheld the validity of the VFA.[7] The VFA provides the regulatory mechanism by which United States
military and civilian personnel [may visit] temporarily in the Philippines in connection with activities
approved by the Philippine Government. It contains provisions relative to entry and departure of
American personnel, driving and vehicle registration, criminal jurisdiction, claims, importation and
exportation, movement of vessels and aircraft, as well as the duration of the agreement and its
termination. It is the VFA which gives continued relevance to the MDT despite the passage of years. Its
primary goal is to facilitate the promotion of optimal cooperation between American and Philippine
military forces in the event of an attack by a common foe.

The first question that should be addressed is whether Balikatan 02-1 is covered by the Visiting Forces
Agreement. To resolve this, it is necessary to refer to the VFA itself. Not much help can be had
therefrom, unfortunately, since the terminology employed is itself the source of the problem. The VFA
permits United States personnel to engage, on an impermanent basis, in activities, the exact meaning of
which was left undefined. The expression is ambiguous, permitting a wide scope of undertakings subject
only to the approval of the Philippine government.[8] The sole encumbrance placed on its definition is
couched in the negative, in that United States personnel must abstain from any activity inconsistent with
the spirit of this agreement, and in particular, from any political activity.[9] All other activities, in other
words, are fair game.

We are not left completely unaided, however. The Vienna Convention on the Law of Treaties, which
contains provisos governing interpretations of international agreements, state:

SECTION 3. INTERPRETATION OF TREATIES

Article 31

General rule of interpretation

1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the
terms of the treaty in their context and in the light of its object and purpose.

2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text,
including its preamble and annexes:

(a) any agreement relating to the treaty which was made between all the parties in connexion with the
conclusion of the treaty;

(b) any instrument which was made by one or more parties in connexion with the conclusion of the
treaty and accepted by the other parties as an instrument related to the party.

3. There shall be taken into account, together with the context:

(a) any subsequent agreement between the parties regarding the interpretation of the treaty or the
application of its provisions;
(b) any subsequent practice in the application of the treaty which establishes the agreement of the
parties regarding its interpretation;

(c) any relevant rules of international law applicable in the relations between the parties.

4. A special meaning shall be given to a term if it is established that the parties so intended.

Article 32

Supplementary means of interpretation

Recourse may be had to supplementary means of interpretation, including the preparatory work of the
treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the
application of article 31, or to determine the meaning when the interpretation according to article 31:

(a) leaves the meaning ambiguous or obscure; or

(b) leads to a result which is manifestly absurd or unreasonable.

It is clear from the foregoing that the cardinal rule of interpretation must involve an examination of the
text, which is presumed to verbalize the parties intentions. The Convention likewise dictates what may
be used as aids to deduce the meaning of terms, which it refers to as the context of the treaty, as well as
other elements may be taken into account alongside the aforesaid context. As explained by a writer on
the Convention,

[t]he Commissions proposals (which were adopted virtually without change by the conference and are
now reflected in Articles 31 and 32 of the Convention) were clearly based on the view that the text of a
treaty must be presumed to be the authentic expression of the intentions of the parties; the
Commission accordingly came down firmly in favour of the view that the starting point of interpretation
is the elucidation of the meaning of the text, not an investigation ab initio into the intentions of the
parties. This is not to say that the travaux prparatoires of a treaty, or the circumstances of its conclusion,
are relegated to a subordinate, and wholly ineffective, role. As Professor Briggs points out, no rigid
temporal prohibition on resort to travaux prparatoires of a treaty was intended by the use of the phrase
supplementary means of interpretation in what is now Article 32 of the Vienna Convention. The
distinction between the general rule of interpretation and the supplementary means of interpretation is
intended rather to ensure that the supplementary means do not constitute an alternative, autonomous
method of interpretation divorced from the general rule.[10]

The Terms of Reference rightly fall within the context of the VFA.

After studied reflection, it appeared farfetched that the ambiguity surrounding the meaning of the word
activities arose from accident. In our view, it was deliberately made that way to give both parties a
certain leeway in negotiation. In this manner, visiting US forces may sojourn in Philippine territory for
purposes other than military. As conceived, the joint exercises may include training on new techniques
of patrol and surveillance to protect the nations marine resources, sea search-and-rescue operations to
assist vessels in distress, disaster relief operations, civic action projects such as the building of school
houses, medical and humanitarian missions, and the like.

Under these auspices, the VFA gives legitimacy to the current Balikatan exercises. It is only logical to
assume that Balikatan 02-1, a mutual anti-terrorism advising, assisting and training exercise, falls under
the umbrella of sanctioned or allowable activities in the context of the agreement. Both the history and
intent of the Mutual Defense Treaty and the VFA support the conclusion that combat-related activities
as opposed to combat itself such as the one subject of the instant petition, are indeed authorized.

That is not the end of the matter, though. Granted that Balikatan 02-1 is permitted under the terms of
the VFA, what may US forces legitimately do in furtherance of their aim to provide advice, assistance
and training in the global effort against terrorism? Differently phrased, may American troops actually
engage in combat in Philippine territory? The Terms of Reference are explicit enough. Paragraph 8 of
section I stipulates that US exercise participants may not engage in combat except in self-defense. We
wryly note that this sentiment is admirable in the abstract but difficult in implementation. The target of
Balikatan 02-1, the Abu Sayyaf, cannot reasonably be expected to sit idly while the battle is brought to
their very doorstep. They cannot be expected to pick and choose their targets for they will not have the
luxury of doing so. We state this point if only to signify our awareness that the parties straddle a fine
line, observing the honored legal maxim Nemo potest facere per alium quod non potest facere per
directum.[11] The indirect violation is actually petitioners worry, that in reality, Balikatan 02-1 is actually
a war principally conducted by the United States government, and that the provision on self-defense
serves only as camouflage to conceal the true nature of the exercise. A clear pronouncement on this
matter thereby becomes crucial.

In our considered opinion, neither the MDT nor the VFA allow foreign troops to engage in an offensive
war on Philippine territory. We bear in mind the salutary proscription stated in the Charter of the United
Nations, to wit:

Article 2

The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance
with the following Principles.

xxx xxx xxx xxx

4. All Members shall refrain in their international relations from the threat or use of force against the
territorial integrity or political independence of any state, or in any other manner inconsistent with the
Purposes of the United Nations.

xxx xxx xxx xxx

In the same manner, both the Mutual Defense Treaty and the Visiting Forces Agreement, as in all other
treaties and international agreements to which the Philippines is a party, must be read in the context of
the 1987 Constitution. In particular, the Mutual Defense Treaty was concluded way before the present
Charter, though it nevertheless remains in effect as a valid source of international obligation. The
present Constitution contains key provisions useful in determining the extent to which foreign military
troops are allowed in Philippine territory. Thus, in the Declaration of Principles and State Policies, it is
provided that:

xxx xxx xxx xxx

SEC. 2. The Philippines renounces war as an instrument of national policy, adopts the generally accepted
principles of international law as part of the law of the land and adheres to the policy of peace, equality,
justice, freedom, cooperation, and amity with all nations.

xxx xxx xxx xxx

SEC. 7. The State shall pursue an independent foreign policy. In its relations with other states the
paramount consideration shall be national sovereignty, territorial integrity, national interest, and the
right to self-determination.

SEC. 8. The Philippines, consistent with the national interest, adopts and pursues a policy of freedom
from nuclear weapons in the country.

xxx xxx xxx xxx

The Constitution also regulates the foreign relations powers of the Chief Executive when it provides that
[n]o treaty or international agreement shall be valid and effective unless concurred in by at least two-
thirds of all the members of the Senate.[12] Even more pointedly, the Transitory Provisions state:

Sec. 25. After the expiration in 1991 of the Agreement between the Republic of the Philippines and the
United States of America concerning Military Bases, foreign military bases, troops or facilities shall not
be allowed in the Philippines except under a treaty duly concurred in by the Senate and, when the
Congress so requires, ratified by a majority of the votes cast by the people in a national referendum held
for that purpose, and recognized as a treaty by the other contracting state.

The aforequoted provisions betray a marked antipathy towards foreign military presence in the country,
or of foreign influence in general. Hence, foreign troops are allowed entry into the Philippines only by
way of direct exception. Conflict arises then between the fundamental law and our obligations arising
from international agreements.

A rather recent formulation of the relation of international law vis--vis municipal law was expressed in
Philip Morris, Inc. v. Court of Appeals,[13] to wit:

xxx Withal, the fact that international law has been made part of the law of the land does not by any
means imply the primacy of international law over national law in the municipal sphere. Under the
doctrine of incorporation as applied in most countries, rules of international law are given a standing
equal, not superior, to national legislation.
This is not exactly helpful in solving the problem at hand since in trying to find a middle ground, it favors
neither one law nor the other, which only leaves the hapless seeker with an unsolved dilemma. Other
more traditional approaches may offer valuable insights.

From the perspective of public international law, a treaty is favored over municipal law pursuant to the
principle of pacta sunt servanda. Hence, [e]very treaty in force is binding upon the parties to it and must
be performed by them in good faith.[14] Further, a party to a treaty is not allowed to invoke the
provisions of its internal law as justification for its failure to perform a treaty.[15]

Our Constitution espouses the opposing view. Witness our jurisdiction as stated in section 5 of Article
VIII:

The Supreme Court shall have the following powers:

xxx xxx xxx xxx

(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may
provide, final judgments and order of lower courts in:

(A) All cases in which the constitutionality or validity of any treaty, international or executive agreement,
law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question.

xxx xxx xxx xxx

In Ichong v. Hernandez,[16] we ruled that the provisions of a treaty are always subject to qualification or
amendment by a subsequent law, or that it is subject to the police power of the State. In Gonzales v.
Hechanova,[17]

xxx As regards the question whether an international agreement may be invalidated by our courts,
suffice it to say that the Constitution of the Philippines has clearly settled it in the affirmative, by
providing, in Section 2 of Article VIII thereof, that the Supreme Court may not be deprived of its
jurisdiction to review, revise, reverse, modify, or affirm on appeal, certiorari, or writ of error as the law
or the rules of court may provide, final judgments and decrees of inferior courts in (1) All cases in which
the constitutionality or validity of any treaty, law, ordinance, or executive order or regulation is in
question. In other words, our Constitution authorizes the nullification of a treaty, not only when it
conflicts with the fundamental law, but, also, when it runs counter to an act of Congress.

The foregoing premises leave us no doubt that US forces are prohibited from engaging in an offensive
war on Philippine territory.

Yet a nagging question remains: are American troops actively engaged in combat alongside Filipino
soldiers under the guise of an alleged training and assistance exercise? Contrary to what petitioners
would have us do, we cannot take judicial notice of the events transpiring down south,[18] as reported
from the saturation coverage of the media. As a rule, we do not take cognizance of newspaper or
electronic reports per se, not because of any issue as to their truth, accuracy, or impartiality, but for the
simple reason that facts must be established in accordance with the rules of evidence. As a result, we
cannot accept, in the absence of concrete proof, petitioners allegation that the Arroyo government is
engaged in doublespeak in trying to pass off as a mere training exercise an offensive effort by foreign
troops on native soil. The petitions invite us to speculate on what is really happening in Mindanao, to
issue, make factual findings on matters well beyond our immediate perception, and this we are
understandably loath to do.

It is all too apparent that the determination thereof involves basically a question of fact. On this point,
we must concur with the Solicitor General that the present subject matter is not a fit topic for a special
civil action for certiorari. We have held in too many instances that questions of fact are not entertained
in such a remedy. The sole object of the writ is to correct errors of jurisdiction or grave abuse of
discretion. The phrase grave abuse of discretion has a precise meaning in law, denoting abuse of
discretion too patent and gross as to amount to an evasion of a positive duty, or a virtual refusal to
perform the duty enjoined or act in contemplation of law, or where the power is exercised in an
arbitrary and despotic manner by reason of passion and personal hostility.[19]

In this connection, it will not be amiss to add that the Supreme Court is not a trier of facts.[20]

Under the expanded concept of judicial power under the Constitution, courts are charged with the duty
to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the government.[21] From the facts
obtaining, we find that the holding of Balikatan 02-1 joint military exercise has not intruded into that
penumbra of error that would otherwise call for correction on our part. In other words, respondents in
the case at bar have not committed grave abuse of discretion amounting to lack or excess of jurisdiction.

WHEREFORE, the petition and the petition-in-intervention are hereby DISMISSED without prejudice to
the filing of a new petition sufficient in form and substance in the proper Regional Trial Court.

SO ORDERED.
PIMENTEL v. EXEC. SEC.

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

PUNO J.:

This is a petition for mandamus filed by petitioners to compel the 

Office of the Executive Secretary and the Department of Foreign Affairs to transmit the signed copy of
the Rome Statute of the International Criminal Court to the Senate of the Philippines for its concurrence
in accordance with Section 21, Article VII of the 1987 Constitution.

The Rome Statute established the International Criminal Court which shall have the power to exercise its
jurisdiction over persons for the most serious crimes of international concern xxx and shall be
complementary to the national criminal jurisdictions. [1] Its jurisdiction covers the crime of genocide,
crimes against humanity, war crimes and the crime of aggression as defined in the Statute. [2] The Statute
was opened for signature by all states in Rome on July 17, 1998 and had remained open for signature
until December 31, 2000 at the United Nations Headquarters in New York. The Philippines signed the
Statute on December 28, 2000 through Charge d Affairs Enrique A. Manalo of the Philippine Mission to
the United Nations.[3] Its provisions, however, require that it be subject to ratification, acceptance or
approval of the signatory states.[4]

Petitioners filed the instant petition to compel the respondents the Office of the Executive Secretary and
the Department of Foreign Affairs to transmit the signed text of the treaty to the Senate of the
Philippines for ratification.

It is the theory of the petitioners that ratification of a treaty, under both domestic law and international
law, is a function of the Senate. Hence, it is the duty of the executive department to transmit the signed
copy of the Rome Statute to the Senate to allow it to exercise its discretion with respect to ratification of
treaties. Moreover, petitioners submit that the Philippines has a ministerial duty to ratify the Rome
Statute under treaty law and customary international law. Petitioners invoke the Vienna Convention on
the Law of Treaties enjoining the states to refrain from acts which would defeat the object and purpose
of a treaty when they have signed the treaty prior to ratification unless they have made their intention
clear not to become parties to the treaty. [5]

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

A petition for mandamus may be filed when any tribunal, corporation, board, officer or person
unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from
an office, trust, or station.[6] We have held that to be given due course, a petition for mandamus must
have been instituted by a party aggrieved by the alleged inaction of any tribunal, corporation, board or
person which unlawfully excludes said party from the enjoyment of a legal right. The petitioner in every
case must therefore be an aggrieved party in the sense that he possesses a clear legal right to be
enforced and a direct interest in the duty or act to be performed. [7] The Court will exercise its power of
judicial review only if the case is brought before it by a party who has the legal standing to raise the
constitutional or legal question. Legal standing means a personal and substantial interest in the case
such that the party has sustained or will sustain direct injury as a result of the government act that is
being challenged. The term interest is material interest, an interest in issue and to be affected by the
decree, as distinguished from mere interest in the question involved, or a mere incidental interest. [8]

The petition at bar was filed by Senator Aquilino Pimentel, Jr. who asserts his legal standing to file the
suit as member of the Senate; Congresswoman Loretta Ann Rosales, a member of the House of
Representatives and Chairperson of its Committee on Human Rights; the Philippine Coalition for the
Establishment of the International Criminal Court which is composed of individuals and corporate
entities dedicated to the Philippine ratification of the Rome Statute; the Task Force Detainees of the
Philippines, a juridical entity with the avowed purpose of promoting the cause of human rights and
human rights victims in the country; the Families of Victims of Involuntary Disappearances, a juridical
entity duly organized and existing pursuant to Philippine Laws with the avowed purpose of promoting
the cause of families and victims of human rights violations in the country; Bianca Hacintha Roque and
Harrison Jacob Roque, aged two (2) and one (1), respectively, at the time of filing of the instant petition,
and suing under the doctrine of inter-generational rights enunciated in the case of Oposa vs. Factoran,
Jr.;[9] and a group of fifth year working law students from the University of the Philippines College of Law
who are suing as taxpayers.

The question in standing is whether a party has alleged such a personal stake in the outcome of the
controversy as to assure that concrete adverseness which sharpens the presentation of issues upon
which the court so largely depends for illumination of difficult constitutional questions. [10]

We find that among the petitioners, only Senator Pimentel has the legal standing to file the instant suit.
The other petitioners maintain their standing as advocates and defenders of human rights, and as
citizens of the country. They have not shown, however, that they have sustained or will sustain a direct
injury from the non-transmittal of the signed text of the Rome Statute to the Senate. Their contention
that they will be deprived of their remedies for the protection and enforcement of their rights does not
persuade. The Rome Statute is intended to complement national criminal laws and courts. Sufficient
remedies are available under our national laws to protect our citizens against human rights violations
and petitioners can always seek redress for any abuse in our domestic courts.
As regards Senator Pimentel, it has been held that to the extent the powers of Congress are impaired, so
is the power of each member thereof, since his office confers a right to participate in the exercise of the
powers of that institution.[11] Thus, legislators have the standing to maintain inviolate the prerogatives,
powers and privileges vested by the Constitution in their office and are allowed to sue to question the
validity of any official action which they claim infringes their prerogatives as legislators. The petition at
bar invokes the power of the Senate to grant or withhold its concurrence to a treaty entered into by the
executive branch, in this case, the Rome Statute. The petition seeks to order the executive branch to
transmit the copy of the treaty to the Senate to allow it to exercise such authority. Senator Pimentel, as
member of the institution, certainly has the legal standing to assert such authority of the Senate.

We now go to the substantive issue.

The core issue in this petition for mandamus is whether the Executive Secretary and the Department of
Foreign Affairs have a ministerial duty to transmit to the Senate the copy of the Rome Statute signed by
a member of the Philippine Mission to the United Nations even without the signature of the President.

We rule in the negative.

In our system of government, the President, being the head of state, is regarded as the sole organ and
authority in external relations and is the countrys sole representative with foreign nations. [12] As the
chief architect of foreign policy, the President acts as the countrys mouthpiece with respect to
international affairs. Hence, the President is vested with the authority to deal with foreign states and
governments, extend or withhold recognition, maintain diplomatic relations, enter into treaties, and
otherwise transact the business of foreign relations. [13] In the realm of treaty-making, the President has
the sole authority to negotiate with other states.

Nonetheless, while the President has the sole authority to negotiate and enter into treaties, the
Constitution provides a limitation to his power by requiring the concurrence of 2/3 of all the members of
the Senate for the validity of the treaty entered into by him. Section 21, Article VII of the 1987
Constitution provides that no treaty or international agreement shall be valid and effective unless
concurred in by at least two-thirds of all the Members of the Senate. The 1935 and the 1973
Constitution also required the concurrence by the legislature to the treaties entered into by the
executive. Section 10 (7), Article VII of the 1935 Constitution provided:

Sec. 10. (7) The President shall have the power, with the concurrence of two-thirds of all the Members
of the Senate, to make treaties xxx.

Section 14 (1) Article VIII of the 1973 Constitution stated:

Sec. 14. (1) Except as otherwise provided in this Constitution, no treaty shall be valid and effective unless
concurred in by a majority of all the Members of the Batasang Pambansa.

 
The participation of the legislative branch in the treaty-making process was deemed essential to provide
a check on the executive in the field of foreign relations. [14] By requiring the concurrence of the
legislature in the treaties entered into by the President, the Constitution ensures a healthy system of
checks and balance necessary in the nations pursuit of political maturity and growth. [15]

In filing this petition, the petitioners interpret Section 21, Article VII of the 1987 Constitution to mean
that the power to ratify treaties belongs to the Senate.

We disagree.

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

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

Negotiation may be undertaken directly by the head of state but he now usually assigns this task to his
authorized representatives. These representatives are provided with credentials known as full powers,
which they exhibit to the other negotiators at the start of the formal discussions. It is standard practice
for one of the parties to submit a draft of the proposed treaty which, together with the counter-
proposals, becomes the basis of the subsequent negotiations. The negotiations may be brief or
protracted, depending on the issues involved, and may even collapse in case the parties are unable to
come to an agreement on the points under consideration.

If and when the negotiators finally decide on the terms of the treaty, the same is opened for signature.
This step is primarily intended as a means of authenticating the instrument and for the purpose of
symbolizing the good faith of the parties; but, significantly, it does not indicate the final consent of the
state in cases where ratification of the treaty is required. The document is ordinarily signed in
accordance with the alternat, that is, each of the several negotiators is allowed to sign first on the copy
which he will bring home to his own state.

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

xxx

The last step in the treaty-making process is the exchange of the instruments of ratification, which
usually also signifies the effectivity of the treaty unless a different date has been agreed upon by the
parties. Where ratification is dispensed with and no effectivity clause is embodied in the treaty, the
instrument is deemed effective upon its signature. [16] [emphasis supplied]

Petitioners arguments equate the signing of the treaty by the Philippine representative with ratification.
It should be underscored that the signing of the treaty and the ratification are two separate and distinct
steps in the treaty-making process. As earlier discussed, the signature is primarily intended as a means
of authenticating the instrument and as a symbol of the good faith of the parties. It is usually performed
by the states authorized representative in the diplomatic mission. Ratification, on the other hand, is the
formal act by which a state confirms and accepts the provisions of a treaty concluded by its
representative. It is generally held to be an executive act, undertaken by the head of the state or of the
government.[17] Thus, Executive Order No. 459 issued by President Fidel V. Ramos on November 25, 1997
provides the guidelines in the negotiation of international agreements and its ratification. It mandates
that after the treaty has been signed by the Philippine representative, the same shall be transmitted to
the Department of Foreign Affairs. The Department of Foreign Affairs shall then prepare the ratification
papers and forward the signed copy of the treaty to the President for ratification. After the President
has ratified the treaty, the Department of Foreign Affairs shall submit the same to the Senate for
concurrence. Upon receipt of the concurrence of the Senate, the Department of Foreign Affairs shall
comply with the provisions of the treaty to render it effective. Section 7 of Executive Order No. 459
reads:

Sec. 7. Domestic Requirements for the Entry into Force of a Treaty or an Executive Agreement.  The
domestic requirements for the entry into force of a treaty or an executive agreement, or any
amendment thereto, shall be as follows:

A. Executive Agreements.

i. All executive agreements shall be transmitted to the Department of Foreign Affairs after their signing
for the preparation of the ratification papers. The transmittal shall include the highlights of the
agreements and the benefits which will accrue to the Philippines arising from them.

 
ii. The Department of Foreign Affairs, pursuant to the endorsement by the concerned agency, shall
transmit the agreements to the President of the Philippines for his ratification. The original signed
instrument of ratification shall then be returned to the Department of Foreign Affairs for appropriate
action.

B. Treaties.

i. All treaties, regardless of their designation, shall comply with the requirements provided in sub-
paragraph[s] 1 and 2, item A (Executive Agreements) of this Section. In addition, the Department of
Foreign Affairs shall submit the treaties to the Senate of the Philippines for concurrence in the
ratification by the President. A certified true copy of the treaties, in such numbers as may be required by
the Senate, together with a certified true copy of the ratification instrument, shall accompany the
submission of the treaties to the Senate.

ii. Upon receipt of the concurrence by the Senate, the Department of Foreign Affairs shall comply with
the provision of the treaties in effecting their entry into force.

Petitioners submission that the Philippines is bound under treaty law and international law to ratify the
treaty which it has signed is without basis. The signature does not signify the final consent of the state to
the treaty. It is the ratification that binds the state to the provisions thereof. In fact, the Rome Statute
itself requires that the signature of the representatives of the states be subject to ratification,
acceptance or approval of the signatory states. Ratification is the act by which the provisions of a treaty
are formally confirmed and approved by a State. By ratifying a treaty signed in its behalf, a state
expresses its willingness to be bound by the provisions of such treaty. After the treaty is signed by the
states representative, the President, being accountable to the people, is burdened with the
responsibility and the duty to carefully study the contents of the treaty and ensure that they are not
inimical to the interest of the state and its people. Thus, the President has the discretion even after the
signing of the treaty by the Philippine representative whether or not to ratify the same. The Vienna
Convention on the Law of Treaties does not contemplate to defeat or even restrain this power of the
head of states. If that were so, the requirement of ratification of treaties would be pointless and futile. It
has been held that a state has no legal or even moral duty to ratify a treaty which has been signed by its
plenipotentiaries.[18] There is no legal obligation to ratify a treaty, but it goes without saying that the
refusal must be based on substantial grounds and not on superficial or whimsical reasons. Otherwise,
the other state would be justified in taking offense. [19]

It should be emphasized that under our Constitution, the power to ratify is vested in the President,
subject to the concurrence of the Senate. The role of the Senate, however, is limited only to giving or
withholding its consent, or concurrence, to the ratification. [20] Hence, it is within the authority of the
President to refuse to submit a treaty to the Senate or, having secured its consent for its ratification,
refuse to ratify it.[21] Although the refusal of a state to ratify a treaty which has been signed in its behalf
is a serious step that should not be taken lightly, [22] such decision is within the competence of the
President alone, which cannot be encroached by this Court via a writ of mandamus. This Court has no
jurisdiction over actions seeking to enjoin the President in the performance of his official duties. [23] The
Court, therefore, cannot issue the writ of mandamus prayed for by the petitioners as it is beyond its
jurisdiction to compel the executive branch of the government to transmit the signed text of Rome
Statute to the Senate.

IN VIEW WHEREOF, the petition is DISMISSED.

SO ORDERED.
BAYAN MUNA v. ROMULO

x-----------------------------------------------------------------------------------------x

 D E C I S I O N

VELASCO, JR., J.:

 The Case

 This petition[1] for certiorari, mandamus and prohibition under Rule 65 assails and seeks to nullify the
Non-Surrender Agreement concluded by and between the Republic of the Philippines (RP) and the
United States of America (USA).

 The Facts

 Petitioner Bayan Muna is a duly registered party-list group established to represent the marginalized
sectors of society. Respondent Blas F. Ople, now deceased, was the Secretary of Foreign Affairs during
the period material to this case. Respondent Alberto Romulo was impleaded in his capacity as then
Executive Secretary.[2]

 Rome Statute of the International Criminal Court

 Having a key determinative bearing on this case is the Rome Statute [3] establishing the International
Criminal Court (ICC) with the power to exercise its jurisdiction over persons for the most serious crimes of
international concern x x x and shall be complementary to the national criminal jurisdictions.[4] The
serious crimes adverted to coverthose considered grave under international law, such as genocide,
crimes against humanity, war crimes, and crimes of aggression. [5]

 On December 28, 2000, the RP, through Charge dAffaires Enrique A. Manalo, signed the Rome Statute
which, by its terms, is subject to ratification, acceptance or approval by the signatory states. [6] As of the
filing of the instant petition, only 92 out of the 139 signatory countries appear to have completed the
ratification, approval and concurrence process. The Philippines is not among the 92.

 RP-US Non-Surrender Agreement

 On May 9, 2003, then Ambassador Francis J. Ricciardone sent US Embassy Note No. 0470 to the
Department of Foreign Affairs (DFA) proposing the terms of the non-surrender bilateral agreement
(Agreement, hereinafter) between the USA and the RP.

 Via Exchange of Notes No. BFO-028-03 [7] dated May 13, 2003 (E/N BFO-028-03, hereinafter), the RP,
represented by then DFA Secretary Ople, agreed with and accepted the US proposals embodied under
the US Embassy Note adverted to and put in effect the Agreement with the US government. In esse,
the Agreement aims to protect what it refers to and defines as persons of the RP and US from frivolous
and harassment suits that might be brought against them in international tribunals. [8] It is reflective of
the increasing pace of the strategic security and defense partnership between the two countries. As of
May 2, 2003, similar bilateral agreements have been effected by and between the US and 33 other
countries.[9]

 The Agreement pertinently provides as follows:

 1. For purposes of this Agreement, persons are current or former Government officials, employees
(including contractors), or military personnel or nationals of one Party.

 2. Persons of one Party present in the territory of the other shall not,  absent the express consent of the
first Party,

 (a) be surrendered or transferred by any means to any international tribunal for any purpose, unless
such tribunal has been established by the UN Security Council, or

 (b) be surrendered or transferred by any means to any other entity or third country, or expelled to a
third country, for the purpose of surrender to or transfer to any international tribunal, unless such
tribunal has been established by the UN Security Council.

 3. When the [US] extradites, surrenders, or otherwise transfers a person of the Philippines to a third
country, the [US] will not agree to the surrender or transfer of that person by the third country to any
international tribunal, unless such tribunal has been established by the UN Security Council, absent the
express consent of the Government of the Republic of the Philippines [GRP].

 4. When the [GRP] extradites, surrenders, or otherwise transfers a person of the [USA] to a third
country, the [GRP] will not agree to the surrender or transfer of that person by the third country to any
international tribunal, unless such tribunal has been established by the UN Security Council, absent the
express consent of the Government of the [US].

 5. This Agreement shall remain in force until one year after the date on which one party notifies the
other of its intent to terminate the Agreement. The provisions of this Agreement shall continue to apply
with respect to any act occurring, or any allegation arising, before the effective date of termination.

 In response to a query of then Solicitor General Alfredo L. Benipayo on the status of the non-surrender
agreement, Ambassador Ricciardone replied in his letter of October 28, 2003 that the exchange of
diplomatic notes constituted a legally binding agreement under international law; and that, under US
law, the said agreement did not require the advice and consent of the US Senate. [10]

 In this proceeding, petitioner imputes grave abuse of discretion to respondents in concluding and
ratifying the Agreement and prays that it be struck down as unconstitutional, or at least declared as
without force and effect.

 For their part, respondents question petitioners standing to maintain a suit and counter that
the Agreement, being in the nature of an executive agreement, does not require Senate concurrence for
its efficacy. And for reasons detailed in their comment, respondents assert the constitutionality of
the Agreement.
The Issues

 I. WHETHER THE [RP] PRESIDENT AND THE [DFA] SECRETARY x x x GRAVELY ABUSED THEIR DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION FOR CONCLUDING THE RP-US NON SURRENDER
AGREEMENT BY MEANS OF [E/N] BFO-028-03 DATED 13 MAY 2003, WHEN THE PHILIPPINE
GOVERNMENT HAS ALREADY SIGNED THE ROME STATUTE OF THE [ICC] ALTHOUGH THIS IS PENDING
RATIFICATION BY THE PHILIPPINE SENATE.

A.    Whether by entering into the x x x Agreement Respondents gravely abused their discretion when
they capriciously abandoned, waived and relinquished our only legitimate recourse through the Rome
Statute of the [ICC] to prosecute and try persons as defined in the x x x Agreement, x x x or literally any
conduit of American interests, who have committed crimes of genocide, crimes against humanity, war
crimes and the crime of aggression, thereby abdicating Philippine Sovereignty.

 B.     Whether after the signing and pending ratification of the Rome Statute of the [ICC] the [RP]
President and the [DFA] Secretary x x x are obliged by the principle of good faith to refrain from doing all
acts which would substantially impair the value of the undertaking as signed.

 C.     Whether the x x x Agreement constitutes an act which defeats the object and purpose of the Rome
Statute of the International Criminal Court and contravenes the obligation of good faith inherent in the
signature of the President affixed on the Rome Statute of the International Criminal Court, and if so
whether the x x x Agreementis void and unenforceable on this ground.

 D.    Whether the RP-US Non-Surrender Agreement is void and unenforceable for grave abuse of
discretion amounting to lack or excess of jurisdiction in connection with its execution.

 II. WHETHER THE RP-US NON SURRENDER AGREEMENT IS VOID AB INITIO FOR CONTRACTING

OBLIGATIONS THAT ARE EITHER IMMORAL OR OTHERWISE AT VARIANCE WITH UNIVERSALLY
RECOGNIZED PRINCIPLES OF INTERNATIONAL LAW.

 III. WHETHER THE x x x AGREEMENT IS VALID, BINDING AND EFFECTIVE WITHOUT THE CONCURRENCE

BY AT LEAST TWO-THIRDS (2/3) OF ALL THE MEMBERS OF THE SENATE x x x.[11]

 The foregoing issues may be summarized into two: first, whether or not the Agreement was contracted
validly, which resolves itself into the question of whether or not respondents gravely abused their
discretion in concluding it; and second, whether or not the Agreement, which has not been submitted to
the Senate for concurrence, contravenes and undermines the Rome Statute and other treaties. But
because respondents expectedly raised it, we shall first tackle the issue of petitioners legal standing.

The Courts Ruling

 This petition is bereft of merit.

 Procedural Issue: Locus Standi of Petitioner

 
Petitioner, through its three party-list representatives, contends that the issue of the validity or
invalidity of the Agreement carries with it constitutional significance and is of paramount importance
that justifies its standing. Cited in this regard is what is usually referred to as the emergency powers
cases,[12] in which ordinary citizens and taxpayers were accorded the personality to question the
constitutionality of executive issuances.

Locus standi is a right of appearance in a court of justice on a given question. [13] Specifically, it is a partys
personal and substantial interest in a case where he has sustained or will sustain direct injury as a
result[14] of the act being challenged, and calls for more than just a generalized grievance. [15] The term
interest refers to material interest, as distinguished from one that is merely incidental. [16] The rationale
for requiring a party who challenges the validity of a law or international agreement to allege such a
personal stake in the outcome of the controversy is to assure the concrete adverseness which sharpens
the presentation of issues upon which the court so largely depends for illumination of difficult
constitutional questions.[17]

 Locus standi, however, is merely a matter of procedure and it has been recognized that, in some cases,
suits are not brought by parties who have been personally injured by the operation of a law or any other
government act, but by concerned citizens, taxpayers, or voters who actually sue in the public interest.
[18]
 Consequently, in a catena of cases,[19] this Court has invariably adopted a liberal stance on locus
standi.

 Going by the petition, petitioners representatives pursue the instant suit primarily as concerned citizens
raising issues of transcendental importance, both for the Republic and the citizenry as a whole.

 When suing as a citizen to question the validity of a law or other government action, a petitioner needs
to meet certain specific requirements before he can be clothed with standing. Francisco, Jr. v.
Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc. [20] expounded on this
requirement, thus:

 In a long line of cases, however, concerned citizens, taxpayers and legislators when specific
requirements have been met have been given standing by this Court.

When suing as a citizen, the interest of the petitioner assailing the constitutionality of a statute must be
direct and personal. He must be able to show, not only that the law or any government act is invalid, but
also that he sustained or is in imminent danger of sustaining some direct injury as a result of its
enforcement, and not merely that he suffers thereby in some indefinite way. It must appear that the
person complaining has been or is about to be denied some right or privilege to which he is lawfully
entitled or that he is about to be subjected to some burdens or penalties by reason of the statute or act
complained of. In fine, when the proceeding involves the assertion of a public right, the mere fact that
he is a citizen satisfies the requirement of personal interest. [21]

 
In the case at bar, petitioners representatives have complied with the qualifying conditions or specific
requirements exacted under the locus standi rule. As citizens, their interest in the subject matter of the
petition is direct and personal. At the very least, their assertions questioning the Agreement are made of
a public right, i.e., to ascertain that theAgreement did not go against established national policies,
practices, and obligations bearing on the States obligation to the community of nations.

 At any event, the primordial importance to Filipino citizens in general of the issue at hand impels the
Court to brush aside the procedural barrier posed by the traditional requirement of locus standi, as we
have done in a long line of earlier cases, notably in the old but oft-cited emergency powers
cases[22] and Kilosbayan v. Guingona, Jr.[23] In cases of transcendental importance, we wrote again
in Bayan v. Zamora,[24] The Court may relax the standing requirements and allow a suit to prosper even
where there is no direct injury to the party claiming the right of judicial review.

 Moreover, bearing in mind what the Court said in Taada v. Angara, that it will not shirk, digress from or
abandon its sacred duty and authority to uphold the Constitution in matters that involve grave abuse of
discretion brought before it in appropriate cases, committed by any officer, agency, instrumentality or
department of the government, [25] we cannot but resolve head on the issues raised before us. Indeed,
where an action of any branch of government is seriously alleged to have infringed the Constitution or is
done with grave abuse of discretion, it becomes not only the right but in fact the duty of the judiciary to
settle it. As in this petition, issues are precisely raised putting to the fore the propriety of
the Agreement pending the ratification of the Rome Statute.

 Validity of the RP-US Non-Surrender Agreement

 Petitioners initial challenge against the Agreement relates to form, its threshold posture being that E/N
BFO-028-03 cannot be a valid medium for concluding theAgreement.

Petitioners contentionperhaps taken unaware of certain well-recognized international doctrines,

practices, and jargonsis untenable. One of these is the doctrine of incorporation, as expressed in Section
2, Article II of the Constitution, wherein the Philippines adopts the generally accepted principles of
international law and international jurisprudence as part of the law of the land and adheres to the policy
of peace, cooperation, and amity with all nations. [26] An exchange of notes falls into the category of
inter-governmental agreements,[27] which is an internationally accepted form of international
agreement. The United Nations Treaty Collections (Treaty Reference Guide) defines the term as follows:

 An exchange of notes is a record of a routine agreement, that has many similarities with the private law
contract. The agreement consists of the exchange of two documents, each of the parties being in the
possession of the one signed by the representative of the other. Under the usual procedure, the
accepting State repeats the text of the offering State to record its assent. The signatories of the letters
may be government Ministers, diplomats or departmental heads. The technique of exchange of notes is
frequently resorted to, either because of its speedy procedure, or, sometimes, to avoid the process of
legislative approval.[28]

 
 In another perspective, the terms exchange of notes and executive agreements have been used
interchangeably, exchange of notes being considered a form of executive agreement that becomes
binding through executive action.[29] On the other hand, executive agreements concluded by the
President sometimes take the form of exchange of notes and at other times that of more formal
documents denominated agreements or protocols. [30] As former US High Commissioner to the
Philippines Francis B. Sayre observed in his work, The Constitutionality of Trade Agreement Acts:

The point where ordinary correspondence between this and other governments ends and agreements
whether denominated executive agreements or exchange of notes or otherwise begin, may sometimes
be difficult of ready ascertainment.[31] x x x

It is fairly clear from the foregoing disquisition that E/N BFO-028-03be it viewed as the Non-Surrender
Agreement itself, or as an integral instrument of acceptance thereof or as consent to be boundis a
recognized mode of concluding a legally binding international written contract among nations.

 Senate Concurrence Not Required

 Article 2 of the Vienna Convention on the Law of Treaties defines a treaty as an international agreement
concluded between states in written form and governed by international law, whether embodied in a
single instrument or in two or more related instruments and whatever its particular designation.
[32]
 International agreements may be in the form of (1) treaties that require legislative concurrence after
executive ratification; or (2) executive agreements that are similar to treaties, except that they do not
require legislative concurrence and are usually less formal and deal with a narrower range of subject
matters than treaties.[33]

 Under international law, there is no difference between treaties and executive agreements in terms of
their binding effects on the contracting states concerned, [34] as long as the negotiating functionaries have
remained within their powers. [35] Neither, on the domestic sphere, can one be held valid if it violates the
Constitution.[36] Authorities are, however, agreed that one is distinct from another for accepted reasons
apart from the concurrence-requirement aspect. [37] As has been observed by US constitutional scholars,
a treaty has greater dignity than an executive agreement, because its constitutional efficacy is beyond
doubt, a treaty having behind it the authority of the President, the Senate, and the people; [38] a ratified
treaty, unlike an executive agreement, takes precedence over any prior statutory enactment. [39]

 Petitioner parlays the notion that the Agreement is of dubious validity, partaking as it does of the
nature of a treaty; hence, it must be duly concurred in by the Senate.Petitioner takes a cue
from Commissioner of Customs v. Eastern Sea Trading, in which the Court reproduced the following
observations made by US legal scholars: [I]nternational agreements involving political issues or changes
of national policy and those involving international arrangements of a permanent character usually take
the form of treaties [while] those embodying adjustments of detail carrying out well established national
policies and traditions and those involving arrangements of a more or less temporary nature take the
form of executive agreements. [40]
Pressing its point, petitioner submits that the subject of the Agreement does not fall under any of the
subject-categories that are enumerated in the Eastern Sea Trading case, and that may be covered by an
executive agreement, such as commercial/consular relations, most-favored nation rights, patent rights,
trademark and copyright protection, postal and navigation arrangements and settlement of claims.

 In addition, petitioner foists the applicability to the instant case of Adolfo v. CFI of Zambales and
Merchant,[41] holding that an executive agreement through an exchange of notes cannot be used to
amend a treaty.

 We are not persuaded.

 The categorization of subject matters that may be covered by international agreements mentioned
in Eastern Sea Trading is not cast in stone. There are no hard and fast rules on the propriety of entering,
on a given subject, into a treaty or an executive agreement as an instrument of international
relations. The primary consideration in the choice of the form of agreement is the parties intent and
desire to craft an international agreement in the form they so wish to further their respective
interests. Verily, the matter of form takes a back seat when it comes to effectiveness and binding effect
of the enforcement of a treaty or an executive agreement, as the parties in either international
agreement each labor under the pacta sunt servanda[42] principle.

 As may be noted, almost half a century has elapsed since the Court rendered its decision in  Eastern Sea
Trading. Since then, the conduct of foreign affairs has become more complex and the domain of
international law wider, as to include such subjects as human rights, the environment, and the sea. In
fact, in the US alone, the executive agreements executed by its President from 1980 to 2000 covered
subjects such as defense, trade, scientific cooperation, aviation, atomic energy, environmental
cooperation, peace corps, arms limitation, and nuclear safety, among others. [43] Surely, the enumeration
in Eastern Sea Trading cannot circumscribe the option of each state on the matter of which the
international agreement format would be convenient to serve its best interest. As Francis Sayre said in
his work referred to earlier:

x x x It would be useless to undertake to discuss here the large variety of executive agreements as such
concluded from time to time. Hundreds of executive agreements, other than those entered into under
the trade-agreement act, have been negotiated with foreign governments. x x x They cover such
subjects as the inspection of vessels, navigation dues, income tax on shipping profits, the admission of
civil air craft, custom matters and commercial relations generally, international claims, postal matters,
the registration of trademarks and copyrights, etc. x x x

 And lest it be overlooked, one type of executive agreement is a treaty-authorized [44] or a treaty-
implementing executive agreement,[45] which necessarily would cover the same matters subject of the
underlying treaty.

 But over and above the foregoing considerations is the fact thatsave for the situation and matters
contemplated in Sec. 25, Art. XVIII of the Constitution [46]when a treaty is required, the Constitution does
not classify any subject, like that involving political issues, to be in the form of, and ratified as, a
treaty. What the Constitution merely prescribes is that treaties need the concurrence of the Senate by a
vote defined therein to complete the ratification process.

 Petitioners reliance on Adolfo[47] is misplaced, said case being inapplicable owing to different factual
milieus. There, the Court held that an executive agreement cannot be used to amend a duly ratified and
existing treaty, i.e., the Bases Treaty. Indeed, an executive agreement that does not require the
concurrence of the Senate for its ratification may not be used to amend a treaty that, under the
Constitution, is the product of the ratifying acts of the Executive and the Senate. The presence of a
treaty, purportedly being subject to amendment by an executive agreement, does not obtain under the
premises.

 Considering the above discussion, the Court need not belabor at length the third main issue raised,
referring to the validity and effectivity of the Agreement without the concurrence by at least two-thirds
of all the members of the Senate. The Court has, in Eastern Sea Trading,[48] as reiterated in Bayan,
[49]
 given recognition to the obligatory effect of executive agreements without the concurrence of the
Senate:

 x x x [T]he right of the Executive to enter into binding agreements without the necessity of subsequent
Congressional approval has been confirmed by long usage. From the earliest days of our history, we
have entered executive agreements covering such subjects as commercial and consular relations, most
favored-nation rights, patent rights, trademark and copyright protection, postal and navigation
arrangements and the settlement of claims. The validity of these has never been seriously questioned by
our courts.

 The Agreement Not in Contravention of the Rome Statute

 It is the petitioners next contention that the Agreement undermines the establishment of the ICC and is
null and void insofar as it unduly restricts the ICCs jurisdiction and infringes upon the effectivity of the
Rome Statute. Petitioner posits that the Agreement was constituted solely for the purpose of providing
individuals or groups of individuals with immunity from the jurisdiction of the ICC; and such grant of
immunity through non-surrender agreements allegedly does not legitimately fall within the scope of Art.
98 of the Rome Statute. It concludes that state parties with non-surrender agreements are prevented
from meeting their obligations under the Rome Statute, thereby constituting a breach of Arts. 27, [50] 86,
[51]
 89[52] and 90[53] thereof.

Petitioner stresses that the overall object and purpose of the Rome Statute is to ensure that those
responsible for the worst possible crimes are brought to justice in all cases, primarily by states, but as a
last resort, by the ICC; thus, any agreementlike the non-surrender agreementthat precludes the ICC from
exercising its complementary function of acting when a state is unable to or unwilling to do so, defeats
the object and purpose of the Rome Statute.

 
Petitioner would add that the President and the DFA Secretary, as representatives of a signatory of the
Rome Statute, are obliged by the imperatives of good faith to refrain from performing acts that
substantially devalue the purpose and object of the Statute, as signed. Adding a nullifying ingredient to
the Agreement, according to petitioner, is the fact that it has an immoral purpose or is otherwise at
variance with a priorly executed treaty.

 Contrary to petitioners pretense, the Agreement does not contravene or undermine, nor does it differ
from, the Rome Statute. Far from going against each other, one complements the other. As a matter of
fact, the principle of complementarity underpins the creation of the ICC. As aptly pointed out by
respondents and admitted by petitioners, the jurisdiction of the ICC is to be complementary to national
criminal jurisdictions [of the signatory states]. [54] Art. 1 of the Rome Statute pertinently provides:

 Article 1

 The Court

 An International Crimininal Court (the Court) is hereby established. It x x x shall have the power to
exercise its jurisdiction over persons for the most serious crimes of international concern, as referred to
in this Statute, and shall be complementary to national criminal jurisdictions. The jurisdiction and
functioning of the Court shall be governed by the provisions of this Statute. (Emphasis ours.)

 Significantly, the sixth preambular paragraph of the Rome Statute declares that it is the duty of every
State to exercise its criminal jurisdiction over those responsible for international crimes.  This provision
indicates that primary jurisdiction over the so-called international crimes rests, at the first instance, with
the state where the crime was committed; secondarily, with the ICC in appropriate situations
contemplated under Art. 17, par. 1[55] of the Rome Statute.

 Of particular note is the application of the principle of ne bis in idem[56] under par. 3 of Art. 20, Rome
Statute, which again underscores the primacy of the jurisdiction of a state vis-a-vis that of the ICC.  As far
as relevant, the provision states that no person who has been tried by another court for conduct x x x
[constituting crimes within its jurisdiction] shall be tried by the [International Criminal] Court with
respect to the same conduct x x x.

 The foregoing provisions of the Rome Statute, taken collectively, argue against the idea of jurisdictional
conflict between the Philippines, as party to the non-surrender agreement, and the ICC; or the idea of
the Agreement substantially impairing the value of the RPs undertaking under the Rome
Statute. Ignoring for a while the fact that the RP signed the Rome Statute ahead of the Agreement, it is
abundantly clear to us that the Rome Statute expressly recognizes the primary jurisdiction of states, like
the RP, over serious crimes committed within their respective borders, the complementary jurisdiction
of the ICC coming into play only when the signatory states are unwilling or unable to prosecute.

 Given the above consideration, petitioners suggestionthat the RP, by entering into the Agreement,
violated its duty required by the imperatives of good faith and breached its commitment under the
Vienna Convention[57] to refrain from performing any act tending to impair the value of a treaty, e.g., the
Rome Statutehas to be rejected outright. For nothing in the provisions of the Agreement, in relation to
the Rome Statute, tends to diminish the efficacy of the Statute, let alone defeats the purpose of the
ICC. Lest it be overlooked, the Rome Statute contains a proviso that enjoins the ICC from seeking the
surrender of an erring person, should the process require the requested state to perform an act that
would violate some international agreement it has entered into. We refer to Art. 98(2) of the Rome
Statute, which reads:

 Article 98

 Cooperation with respect to waiver of immunity

and consent to surrender

 x x x x

 2. The Court may not proceed with a request for surrender which would require the requested State to
act inconsistently with its obligations under international agreements pursuant to which the consent of
a sending State is required to surrender a person of that State to the Court, unless the Court can first
obtain the cooperation of the sending State for the giving of consent for the surrender.

 Moreover, under international law, there is a considerable difference between a State-Party and a
signatory to a treaty. Under the Vienna Convention on the Law of Treaties, a signatory state is only
obliged to refrain from acts which would defeat the object and purpose of a treaty; [58] whereas a State-
Party, on the other hand, is legally obliged to follow all the provisions of a treaty in good faith.

 In the instant case, it bears stressing that the Philippines is only a signatory to the Rome Statute and not
a State-Party for lack of ratification by the Senate. Thus, it is only obliged to refrain from acts which
would defeat the object and purpose of the Rome Statute. Any argument obliging the Philippines to
follow any provision in the treaty would be premature.

 As a result, petitioners argument that State-Parties with non-surrender agreements are prevented from
meeting their obligations under the Rome Statute, specifically Arts. 27, 86, 89 and 90, must fail. These
articles are only legally binding upon State-Parties, not signatories.

 Furthermore, a careful reading of said Art. 90 would show that the Agreement is not incompatible with
the Rome Statute. Specifically, Art. 90(4) provides that [i]f the requesting State is a State not Party to
this Statute the requested State, if it is not under an international obligation to extradite the person to
the requesting State, shall give priority to the request for surrender from the Court. x x x In applying the
provision, certain undisputed facts should be pointed out: first, the US is neither a State-Party nor a
signatory to the Rome Statute; and second, there is an international agreement between the US and
the Philippines regarding extradition or surrender of persons, i.e., the Agreement. Clearly, even
assuming that the Philippines is a State-Party, the Rome Statute still recognizes the primacy of
international agreements entered into between States, even when one of the States is not a State-Party
to the Rome Statute.
Sovereignty Limited by International Agreements

 Petitioner next argues that the RP has, through the Agreement, abdicated its sovereignty by bargaining
away the jurisdiction of the ICC to prosecute US nationals, government officials/employees or military
personnel who commit serious crimes of international concerns in the Philippines. Formulating
petitioners argument a bit differently, the RP, by entering into the Agreement, does thereby abdicate its
sovereignty, abdication being done by its waiving or abandoning its right to seek recourse through the
Rome Statute of the ICC for erring Americans committing international crimes in the country.

 We are not persuaded. As it were, the Agreement is but a form of affirmance and confirmance of
the Philippines national criminal jurisdiction. National criminal jurisdiction being primary, as explained
above, it is always the responsibility and within the prerogative of the RP either to prosecute criminal
offenses equally covered by the Rome Statute or to accede to the jurisdiction of the ICC. Thus,
the Philippines may decide to try persons of the US, as the term is understood in the Agreement, under
our national criminal justice system. Or it may opt not to exercise its criminal jurisdiction over its erring
citizens or over US persons committing high crimes in the country and defer to the secondary criminal
jurisdiction of the ICC over them. As to persons of the US whom the Philippines refuses to prosecute, the
country would, in effect, accord discretion to the US to exercise either its national criminal jurisdiction
over the person concerned or to give its consent to the referral of the matter to the ICC for trial.  In the
same breath, the US must extend the same privilege to the Philippines with respect to persons of the RP
committing high crimes within US territorial jurisdiction.

 In the context of the Constitution, there can be no serious objection to the Philippines agreeing to
undertake the things set forth in the Agreement. Surely, one State can agree to waive jurisdictionto the
extent agreed uponto subjects of another State due to the recognition of the principle of extraterritorial
immunity. What the Court wrote inNicolas v. Romulo[59]a case involving the implementation of the
criminal jurisdiction provisions of the RP-US Visiting Forces Agreementis apropos:

 Nothing in the Constitution prohibits such agreements recognizing immunity from jurisdiction or some
aspects of jurisdiction (such as custody), in relation to long-recognized subjects of such immunity like
Heads of State, diplomats and members of the armed forces contingents of a foreign State allowed to
enter another States territory. x x x

 To be sure, the nullity of the subject non-surrender agreement cannot be predicated on the postulate
that some of its provisions constitute a virtual abdication of its sovereignty. Almost every time a state
enters into an international agreement, it voluntarily sheds off part of its sovereignty. The Constitution,
as drafted, did not envision a reclusive Philippines isolated from the rest of the world. It even adheres,
as earlier stated, to the policy of cooperation and amity with all nations. [60]

 By their nature, treaties and international agreements actually have a limiting effect on the otherwise
encompassing and absolute nature of sovereignty. By their voluntary act, nations may decide to
surrender or waive some aspects of their state power or agree to limit the exercise of their otherwise
exclusive and absolute jurisdiction. The usual underlying consideration in this partial surrender may be
the greater benefits derived from a pact or a reciprocal undertaking of one contracting party to grant
the same privileges or immunities to the other. On the rationale that the Philippines has adopted the
generally accepted principles of international law as part of the law of the land, a portion of sovereignty
may be waived without violating the Constitution. [61] Such waiver does not amount to an
unconstitutional diminution or deprivation of jurisdiction of Philippine courts. [62]

 Agreement Not Immoral/Not at Variance

with Principles of International Law

 Petitioner urges that the Agreement be struck down as void ab initio for imposing immoral obligations
and/or being at variance with allegedly universally recognized principles of international law. The
immoral aspect proceeds from the fact that the Agreement, as petitioner would put it, leaves criminals
immune from responsibility for unimaginable atrocities that deeply shock the conscience of humanity; x
x x it precludes our country from delivering an American criminal to the [ICC] x x x. [63]

 The above argument is a kind of recycling of petitioners earlier position, which, as already discussed,
contends that the RP, by entering into the Agreement, virtually abdicated its sovereignty and in the
process undermined its treaty obligations under the Rome Statute, contrary to international law
principles.[64]

 The Court is not persuaded. Suffice it to state in this regard that the non-surrender agreement, as aptly
described by the Solicitor General, is an assertion by the Philippinesof its desire to try and punish crimes
under its national law. x x x The agreement is a recognition of the primacy and competence of the
countrys judiciary to try offenses under its national criminal laws and dispense justice fairly and
judiciously.

 Petitioner, we believe, labors under the erroneous impression that the Agreement would allow Filipinos
and Americans committing high crimes of international concern to escape criminal trial and
punishment. This is manifestly incorrect. Persons who may have committed acts penalized under the
Rome Statute can be prosecuted and punished in thePhilippines or in the US; or with the consent of the
RP or the US, before the ICC, assuming, for the nonce, that all the formalities necessary to bind both
countries to the Rome Statute have been met. For perspective, what the Agreement contextually
prohibits is the surrender by either party of individuals to international tribunals, like the ICC, without
the consent of the other party, which may desire to prosecute the crime under its existing laws. With
the view we take of things, there is nothing immoral or violative of international law concepts in the act
of the Philippines of assuming criminal jurisdiction pursuant to the non-surrender agreement over an
offense considered criminal by both Philippine laws and the Rome Statute.

No Grave Abuse of Discretion

 Petitioners final point revolves around the necessity of the Senates concurrence in the Agreement. And
without specifically saying so, petitioner would argue that the non-surrender agreement was executed
by the President, thru the DFA Secretary, in grave abuse of discretion.

 
The Court need not delve on and belabor the first portion of the above posture of petitioner, the same
having been discussed at length earlier on. As to the second portion, We wish to state that petitioner
virtually faults the President for performing, through respondents, a task conferred the President by the
Constitutionthe power to enter into international agreements.

 By constitutional fiat and by the nature of his or her office, the President, as head of state and
government, is the sole organ and authority in the external affairs of the country. [65] The Constitution
vests in the President the power to enter into international agreements, subject, in appropriate cases, to
the required concurrence votes of the Senate.But as earlier indicated, executive agreements may be
validly entered into without such concurrence. As the President wields vast powers and influence, her
conduct in the external affairs of the nation is, as Bayan would put it, executive altogether. The right of
the President to enter into or ratify binding executive agreements has been confirmed by long practice.
[66]

 In thus agreeing to conclude the Agreement thru E/N BFO-028-03, then President Gloria Macapagal-
Arroyo, represented by the Secretary of Foreign Affairs, acted within the scope of the authority and
discretion vested in her by the Constitution. At the end of the day, the Presidentby ratifying, thru her
deputies, the non-surrender agreementdid nothing more than discharge a constitutional duty and
exercise a prerogative that pertains to her office.

 While the issue of ratification of the Rome Statute is not determinative of the other issues raised
herein, it may perhaps be pertinent to remind all and sundry that about the time this petition was
interposed, such issue of ratification was laid to rest in Pimentel, Jr. v. Office of the Executive Secretary.
[67]
 As the Court emphasized in said case, the power to ratify a treaty, the Statute in that instance, rests
with the President, subject to the concurrence of the Senate, whose role relative to the ratification of a
treaty is limited merely to concurring in or withholding the ratification.  And concomitant with this
treaty-making power of the President is his or her prerogative to refuse to submit a treaty to the Senate;
or having secured the latters consent to the ratification of the treaty, refuse to ratify it. [68] This
prerogative, the Court hastened to add, is the Presidents alone and cannot be encroached upon via a
writ of mandamus. Barring intervening events, then, the Philippines remains to be just a signatory to the
Rome Statute. Under Art. 125[69] thereof, the final acts required to complete the treaty process and,
thus, bring it into force, insofar as the Philippines is concerned, have yet to be done.

 Agreement Need Not Be in the Form of a Treaty

 On December 11, 2009, then President Arroyo signed into law Republic Act No. (RA) 9851, otherwise
known as the Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other
Crimes Against Humanity. Sec. 17 of RA 9851, particularly the second paragraph thereof, provides:

 Section 17. Jurisdiction. x x x x

In the interest of justice, the relevant Philippine authorities may dispense with the investigation or
prosecution of a crime punishable under this Act if another court or international tribunal is already
conducting the investigation or undertaking the prosecution of such crime. Instead, the
authorities may surrender or extradite suspected or accused persons in thePhilippines to the
appropriate international court, if any, or to another State pursuant to the applicable extradition laws
and treaties. (Emphasis supplied.)

 A view is advanced that the Agreement amends existing municipal laws on the States obligation in
relation to grave crimes against the law of nations, i.e., genocide, crimes against humanity and war
crimes. Relying on the above-quoted statutory proviso, the view posits that the Philippine is required to
surrender to the proper international tribunal those persons accused of the grave crimes defined under
RA 9851, if it does not exercise its primary jurisdiction to prosecute them.

The basic premise rests on the interpretation that if it does not decide to prosecute a foreign national
for violations of RA 9851, the Philippines has only two options, to wit: (1) surrender the accused to the
proper international tribunal; or (2) surrender the accused to another State if such surrender is pursuant
to the applicable extradition laws and treaties. But the Philippines may exercise these options only in
cases where another court or international tribunal is already conducting the investigation or
undertaking the prosecution of such crime; otherwise, the Philippines must prosecute the crime before
its own courts pursuant to RA 9851.

 Posing the situation of a US national under prosecution by an international tribunal for any crime under
RA 9851, the Philippines has the option to surrender such USnational to the international tribunal if it
decides not to prosecute such US national here. The view asserts that this option of
the Philippines under Sec. 17 of RA 9851 is not subject to the consent of the US, and any derogation of
Sec. 17 of RA 9851, such as requiring the consent of the US before the Philippines can exercise such
option, requires an amendatory law. In line with this scenario, the view strongly argues that
the Agreement prevents the Philippineswithout the consent of the USfrom surrendering to any
international tribunal US nationals accused of crimes covered by RA 9851, and, thus, in effect amends
Sec. 17 of RA 9851. Consequently, the view is strongly impressed that theAgreement cannot be
embodied in a simple executive agreement in the form of an exchange of notes but must be
implemented through an extradition law or a treaty with the corresponding formalities.

 Moreover, consonant with the foregoing view, citing Sec. 2, Art. II of the Constitution, where
the Philippines adopts, as a national policy, the generally accepted principles of international law as
part of the law of the land, the Court is further impressed to perceive the Rome Statute as declaratory
of customary international law. In other words, the Statute embodies principles of law which constitute
customary international law or custom and for which reason it assumes the status of an enforceable
domestic law in the context of the aforecited constitutional provision. As a corollary, it is argued that
any derogation from the Rome Statute principles cannot be undertaken via a mere executive
agreement, which, as an exclusive act of the executive branch, can only implement, but cannot amend
or repeal, an existing law. The Agreement, so the argument goes, seeks to frustrate the objects of the
principles of law or alters customary rules embodied in the Rome Statute.

 
Prescinding from the foregoing premises, the view thus advanced considers the Agreement inefficacious,
unless it is embodied in a treaty duly ratified with the concurrence of the Senate, the theory being that a
Senate- ratified treaty partakes of the nature of a municipal law that can amend or supersede another
law, in this instance Sec. 17 of RA 9851 and the status of the Rome Statute as constitutive of enforceable
domestic law under Sec. 2, Art. II of the Constitution.

 We are unable to lend cogency to the view thus taken. For one, we find that the Agreement does not
amend or is repugnant to RA 9851. For another, the view does not clearly state what precise principles
of law, if any, the Agreement alters. And for a third, it does not demonstrate in the concrete how
the Agreement seeks to frustrate the objectives of the principles of law subsumed in the Rome Statute.

 Far from it, as earlier explained, the Agreement does not undermine the Rome Statute as the former
merely reinforces the primacy of the national jurisdiction of the US and the Philippines in prosecuting
criminal offenses committed by their respective citizens and military personnel, among others. The
jurisdiction of the ICC pursuant to the Rome Statute over high crimes indicated thereat is clearly and
unmistakably complementary to the national criminal jurisdiction of the signatory states.

 Moreover, RA 9851 clearly: (1) defines and establishes the crimes against international humanitarian
law, genocide and other crimes against humanity; [70] (2) provides penal sanctions and criminal liability
for their commission;[71] and (3) establishes special courts for the prosecution of these crimes and for the
State to exercise primary criminal jurisdiction. [72] Nowhere in RA 9851 is there a proviso that goes against
the tenor of the Agreement.

 The view makes much of the above quoted second par. of Sec. 17, RA 9851 as  requiring the Philippine
State to surrender to the proper international tribunal those persons accused of crimes sanctioned
under said law if it does not exercise its primary jurisdiction to prosecute such persons. This view is not
entirely correct, for the above quoted proviso clearly provides discretion to the Philippine State on
whether to surrender or not a person accused of the crimes under RA 9851. The statutory proviso uses
the wordmay. It is settled doctrine in statutory construction that the word may denotes discretion, and
cannot be construed as having mandatory effect. [73] Thus, the pertinent second pararagraph of Sec. 17,
RA 9851 is simply permissive on the part of the Philippine State.

 Besides, even granting that the surrender of a person is mandatorily required when the Philippines does
not exercise its primary jurisdiction in cases where another court or international tribunal is already
conducting the investigation or undertaking the prosecution of such crime, still, the tenor of
the Agreement is not repugnant to Sec. 17 of RA 9851. Said legal proviso aptly provides that the
surrender may be made to another State pursuant to the applicable extradition laws and
treaties. The Agreement can already be considered a treaty following this Courts decision in Nicolas v.
Romulo[74] which cited Weinberger v. Rossi.[75] In Nicolas, We held that an executive agreement is a treaty
within the meaning of that word in international law and constitutes enforceable domestic law  vis--
vis the United States.[76]

 Likewise, the Philippines and the US already have an existing extradition treaty, i.e., RP-US Extradition

Treaty, which was executed on November 13, 1994. The pertinent Philippine law, on the other hand, is
Presidential Decree No. 1069, issued on January 13, 1977. Thus, the Agreement, in conjunction with the
RP-US Extradition Treaty, would neither violate nor run counter to Sec. 17 of RA 9851.

 The views reliance on Suplico v. Neda[77] is similarly improper. In that case, several petitions were filed
questioning the power of the President to enter into foreign loan agreements. However, before the
petitions could be resolved by the Court, the Office of the Solicitor General filed a Manifestation and
Motion averring that the Philippine Government decided not to continue with the ZTE National
Broadband Network Project, thus rendering the petition moot. In resolving the case, the Court took
judicial notice of the act of the executive department of the Philippines (the President) and found the
petition to be indeed moot. Accordingly, it dismissed the petitions.

 In his dissent in the abovementioned case, Justice Carpio discussed the legal implications of an
executive agreement. He stated that an executive agreement has the force and effect of law x x x [it]
cannot amend or repeal prior laws.[78] Hence, this argument finds no application in this case seeing as RA
9851 is a subsequent law, not a prior one. Notably, this argument cannot be found in the  ratio
decidendi of the case, but only in the dissenting opinion.

 The view further contends that the RP-US Extradition Treaty is inapplicable to RA 9851 for the reason
that under par. 1, Art. 2 of the RP-US Extradition Treaty, [a]n offense shall be an extraditable offense if it
is punishable under the laws in both Contracting Parties x x x,[79] and thereby concluding that while the
Philippines has criminalized under RA 9851 the acts defined in the Rome Statute as war crimes, genocide
and other crimes against humanity, there is no similar legislation in the US. It is further argued that,
citing U.S. v. Coolidge, in the US, a person cannot be tried in the federal courts for an international crime
unless Congress adopts a law defining and punishing the offense.

 This view must fail.

 On the contrary, the US has already enacted legislation punishing the high crimes mentioned earlier. In
fact, as early as October 2006, the US enacted a law criminalizing war crimes. Section 2441, Chapter 118,
Part I, Title 18 of the United States Code Annotated (USCA) provides for the criminal offense of war
crimes which is similar to the war crimes found in both the Rome Statute and RA 9851, thus:

 (a)    Offense Whoever, whether inside or outside the United States, commits a war crime, in any of the
circumstances described in subsection (b), shall be fined under this title or imprisoned for life or any
term of years, or both, and if death results to the victim, shall also be subject to the penalty of death.

(b)   Circumstances The circumstances referred to in subsection (a) are that the person committing such
war crime or the victim of such war crime is a member of the Armed Forces of the United States or a
national of the United States (as defined in Section 101 of the Immigration and Nationality Act).

(c)    Definition As used in this Section the term war crime means any conduct

(1)   Defined as a grave breach in any of the international conventions signed at Geneva 12 August 1949,
or any protocol to such convention to which the United States is a party;
(2)   Prohibited by Article 23, 25, 27 or 28 of the Annex to the Hague Convention IV, Respecting the Laws
and Customs of War on Land, signed 18 October 1907;

(3)   Which constitutes a grave breach of common Article 3 (as defined in subsection [d]) when
committed in the context of and in association with an armed conflict not of an international character;
or

(4)   Of a person who, in relation to an armed conflict and contrary to the provisions of the Protocol on
Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended at Geneva
on 3 May 1996 (Protocol II as amended on 3 May 1996), when the United States is a party to such
Protocol, willfully kills or causes serious injury to civilians. [80]

 Similarly, in December 2009, the US adopted a law that criminalized genocide, to wit:

 1091. Genocide

 (a)                Basic Offense Whoever, whether in the time of peace or in time of war and with specific
intent to destroy, in whole or in substantial part, a national, ethnic, racial or religious group as such

(1)   kills members of that group;

(2)   causes serious bodily injury to members of that group;

(3)   causes the permanent impairment of the mental faculties of members of the group through drugs,
torture, or similar techniques;

(4)   subjects the group to conditions of life that are intended to cause the physical destruction of the
group in whole or in part;

(5)   imposes measures intended to prevent births within the group; or

(6)   transfers by force children of the group to another group;

shall be punished as provided in subsection (b). [81]

 Arguing further, another view has been advanced that the current US laws do not cover every crime
listed within the jurisdiction of the ICC and that there is a gap between the definitions of the different
crimes under the US laws versus the Rome Statute. The view used a report written by Victoria K. Holt
and Elisabeth W. Dallas, entitled On Trial: The US Military and the International Criminal Court, as its
basis.

At the outset, it should be pointed out that the report used may not have any weight or value under
international law. Article 38 of the Statute of the International Court of Justice (ICJ) lists the sources of
international law, as follows: (1) international conventions, whether general or particular, establishing
rules expressly recognized by the contesting states; (2) international custom, as evidence of a general
practice accepted as law; (3) the general principles of law recognized by civilized nations; and (4) subject
to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified
publicists of the various nations, as subsidiary means for the determination of rules of law. The report
does not fall under any of the foregoing enumerated sources. It cannot even be considered as the
teachings of highly qualified publicists. A highly qualified publicist is a scholar of public international law
and the term usually refers to legal scholars or academic writers. [82] It has not been shown that the
authors[83] of this report are highly qualified publicists.

 Assuming arguendo that the report has weight, still, the perceived gaps in the definitions of the crimes
are nonexistent. To highlight, the table below shows the definitions of genocide and war crimes under
the Rome Statute vis--vis the definitions under US laws:

Rome Statute US Law

Article 6 1091. Genocide

Genocide

For the purpose of this Statute, genocide
means any of the following acts committed
with intent to destroy, in whole or in part, a
national, ethnical, racial or religious group, as
such:
(a) Basic Offense Whoever, whether in the
time of peace or in time of war and with
specific intent to destroy, in whole or in
substantial part, a national, ethnic, racial or
religious group as such

(a) Killing members of the group; (1) kills members of that group;

(b) Causing serious bodily or mental harm to (2) causes serious bodily injury to members of
members of the group; that group;

(c) Deliberately inflicting on the group (3) causes the permanent impairment of the
conditions of life calculated to bring about its mental faculties of members of the group
physical destruction in whole or in part; through drugs, torture, or similar techniques;

(d) Imposing measures intended to prevent
births within the group;
(e) Forcibly transferring children of the group
to another group.
(4) subjects the group to conditions of life that
are intended to cause the physical destruction
of the group in whole or in part;
(5) imposes measures intended to prevent
births within the group; or

(6) transfers by force children of the group to

another group;

shall be punished as provided in subsection


Article 8
War Crimes
2. For the purpose of this Statute, war crimes
means:
(a) Grave breaches of the Geneva Conventions
of 12 August 1949, namely, any of the
following acts against persons or property
protected under the provisions of the relevant
Geneva Convention: x x x[84]
(b) Other serious violations of the laws and
customs applicable in international armed
conflict, within the established framework of
international law, namely, any of the following
acts:
xxxx
(c) In the case of an armed conflict not of an
international character, serious violations of
article 3 common to the four Geneva
Conventions of 12 August 1949, namely, any of
the following acts committed against persons
taking no active part in the hostilities,
including members of armed forces who have
laid down their arms and those placed hors de
combat by sickness, wounds, detention or any
other cause:
xxxx
(d) Paragraph 2 (c) applies to armed conflicts
not of an international character and thus
does not apply to situations of internal
disturbances and tensions, such as riots,
isolated and sporadic acts of violence or other
acts of a similar nature.
(e) Other serious violations of the laws and
customs applicable in armed conflicts not of an
(b).
(a)    Definition As used in this Section the term
war crime means any conduct
(1)   Defined as a grave breach in any of the
international conventions signed at Geneva12
August 1949, or any protocol to such
convention to which the United States is a
party;
(2)   Prohibited by Article 23, 25, 27 or 28 of
the Annex to the Hague Convention IV,
Respecting the Laws and Customs of War on
Land, signed 18 October 1907;
(3)   Which constitutes a grave breach of
common Article 3 (as defined in subsection [d]
[85]
) when committed in the context of and in
association with an armed conflict not of an
international character; or
(4)   Of a person who, in relation to an armed
conflict and contrary to the provisions of the
Protocol on Prohibitions or Restrictions on the
Use of Mines, Booby-Traps and Other Devices
as amended at Geneva on 3 May 1996
(Protocol II as amended on 3 May 1996), when
the United States is a party to such Protocol,
willfully kills or causes serious injury to
civilians.[86]
 international character, within the established
framework of international law, namely, any of
the following acts: x x x.

Evidently, the gaps pointed out as to the definition of the crimes are not present. In fact, the report itself
stated as much, to wit:

 Few believed there were wide differences between the crimes under the jurisdiction of the Court and
crimes within the Uniform Code of Military Justice that would expose US personnel to the Court.
Since US military lawyers were instrumental in drafting the elements of crimes outlined in the Rome
Statute, they ensured that most of the crimes were consistent with those outlined in the UCMJ and gave
strength to complementarity for the US. Small areas of potential gaps between the UCMJ and the Rome
Statute, military experts argued, could be addressed through existing military laws. [87] x x x

 The report went on further to say that [a]ccording to those involved, the elements of crimes laid out in
the Rome Statute have been part of US military doctrine for decades. [88] Thus, the argument proffered
cannot stand.

 Nonetheless, despite the lack of actual domestic legislation, the US notably follows the doctrine of
incorporation. As early as 1900, the esteemed Justice Gray in The Paquete Habana[89] case already held
international law as part of the law of the US, to wit:

 International law is part of our law, and must be ascertained and administered by the courts of justice
of appropriate jurisdiction as often as questions of right depending upon it are duly presented for their
determination. For this purpose, where there is no treaty and no controlling executive or legislative act
or judicial decision, resort must be had to the customs and usages of civilized nations, and, as evidence
of these, to the works of jurists and commentators who by years of labor, research, and experience have
made themselves peculiarly well acquainted with the subjects of which they treat. Such works are
resorted to by judicial tribunals, not for the speculations of their authors concerning what the law ought
to be, but for the trustworthy evidence of what the law really is. [90] (Emphasis supplied.)

 Thus, a person can be tried in the US for an international crime despite the lack of domestic
legislation. The cited ruling in U.S. v. Coolidge,[91] which in turn is based on the holding in U.S. v. Hudson,
[92]
 only applies to common law and not to the law of nations or international law. [93] Indeed, the Court
in U.S. v. Hudson only considered the question, whether the Circuit Courts of the United States can
exercise a common law jurisdiction in criminal cases. [94] Stated otherwise, there is no common law crime
in theUS but this is considerably different from international law.

 The US doubtless recognizes international law as part of the law of the land, necessarily including
international crimes, even without any local statute. [95] In fact, years later, US courts would apply
international law as a source of criminal liability despite the lack of a local statute criminalizing it as
such. So it was that in Ex Parte Quirin[96] the US Supreme Court noted that [f]rom the very beginning of
its history this Court has recognized and applied the law of war as including that part of the law of
nations which prescribes, for the conduct of war, the status, rights and duties of enemy nations as well
as of enemy individuals.[97] It went on further to explain that Congress had not undertaken the task of
codifying the specific offenses covered in the law of war, thus:

 It is no objection that Congress in providing for the trial of such offenses has not itself undertaken to
codify that branch of international law or to mark its precise boundaries, or to enumerate or define by
statute all the acts which that law condemns. An Act of Congress punishing the crime of piracy as
defined by the law of nations is an appropriate exercise of its constitutional authority, Art. I, s 8, cl. 10,
to define and punish the offense since it has adopted by reference the sufficiently precise definition of
international law. x x x Similarly by the reference in the 15th Article of War to offenders or offenses that
x x x by the law of war may be triable by such military commissions. Congress has incorporated by
reference, as within the jurisdiction of military commissions, all offenses which are defined as such by
the law of war x x x, and which may constitutionally be included within that jurisdiction. [98] x x x
(Emphasis supplied.)

 This rule finds an even stronger hold in the case of crimes against humanity. It has been held that
genocide, war crimes and crimes against humanity have attained the status of customary international
law. Some even go so far as to state that these crimes have attained the status of jus cogens.[99]

 Customary international law or international custom is a source of international law as stated in the
Statute of the ICJ.[100] It is defined as the general and consistent practice of states recognized and
followed by them from a sense of legal obligation. [101] In order to establish the customary status of a
particular norm, two elements must concur: State practice, the objective element; and opinio juris sive
necessitates, the subjective element.[102]

 State practice refers to the continuous repetition of the same or similar kind of acts or norms by States.
[103]
 It is demonstrated upon the existence of the following elements: (1) generality; (2) uniformity and
consistency; and (3) duration.[104] While, opinio juris, the psychological element, requires that the state
practice or norm be carried out in such a way, as to be evidence of a belief that this practice is rendered
obligatory by the existence of a rule of law requiring it. [105]

 The term jus cogens means the compelling law.[106] Corollary, a jus cogens norm holds the highest
hierarchical position among all other customary norms and principles. [107] As a result, jus cogens norms
are deemed peremptory and non-derogable. [108] When applied to international crimes, jus cogens crimes
have been deemed so fundamental to the existence of a just international legal order that states cannot
derogate from them, even by agreement. [109]

 These jus cogens crimes relate to the principle of universal jurisdiction, i.e., any state may exercise
jurisdiction over an individual who commits certain heinous and widely condemned offenses, even when
no other recognized basis for jurisdiction exists. [110] The rationale behind this principle is that the crime
committed is so egregious that it is considered to be committed against all members of the international
community[111] and thus granting every State jurisdiction over the crime. [112]
 

Therefore, even with the current lack of domestic legislation on the part of the US, it still has both the
doctrine of incorporation and universal jurisdiction to try these crimes.

 Consequently, no matter how hard one insists, the ICC, as an international tribunal, found in the Rome
Statute is not declaratory of customary international law.

 The first element of customary international law, i.e., established, widespread, and consistent practice
on the part of States,[113] does not, under the premises, appear to be obtaining as reflected in this simple
reality: As of October 12, 2010, only 114[114] States have ratified the Rome Statute, subsequent to its
coming into force eight (8) years earlier, or on July 1, 2002. The fact that 114 States out of a total of
194[115] countries in the world, or roughly 58.76%, have ratified the Rome Statute casts doubt on
whether or not the perceived principles contained in the Statute have attained the status of customary
law and should be deemed as obligatory international law. The numbers even tend to argue against the
urgency of establishing international criminal courts envisioned in the Rome Statute.  Lest it be
overlooked, the Philippines, judging by the action or inaction of its top officials, does not even feel
bound by the Rome Statute. Res ipsa loquitur. More than eight (8) years have elapsed since the
Philippine representative signed the Statute, but the treaty has not been transmitted to the Senate for
the ratification process.

 And this brings us to what Fr. Bernas, S.J. aptly said respecting the application of the concurring
elements, thus:

 Custom or customary international law means a general and consistent practice of states followed by
them from a sense of legal obligation [opinio juris] x x x. This statement contains the two basic elements
of custom: the material factor, that is how the states behave, and the psychological factor or subjective
factor, that is, why they behave the way they do.

 x x x x

 The initial factor for determining the existence of custom is the actual behavior of states. This includes
several elements: duration, consistency, and generality of the practice of states.

 The required duration can be either short or long. x x x

 x x x x

 Duration therefore is not the most important element. More important is the consistency and the
generality of the practice. x x x

xxxx

 
Once the existence of state practice has been established, it becomes necessary to determine why
states behave the way they do. Do states behave the way they do because they consider it obligatory to
behave thus or do they do it only as a matter of courtesy? Opinio juris, or the belief that a certain form
of behavior is obligatory, is what makes practice an international rule. Without it, practice is not law.
[116]
 (Emphasis added.)

Evidently, there is, as yet, no overwhelming consensus, let alone prevalent practice, among the different
countries in the world that the prosecution of internationally recognized crimes of genocide, etc. should
be handled by a particular international criminal court.

 Absent the widespread/consistent-practice-of-states factor, the second or the psychological element

must be deemed non-existent, for an inquiry on why states behave the way they do presupposes, in the
first place, that they are actually behaving, as a matter of settled and consistent practice, in a certain
manner. This implicitly requires belief that the practice in question is rendered obligatory by the
existence of a rule of law requiring it. [117] Like the first element, the second element has likewise not
been shown to be present.

 Further, the Rome Statute itself rejects the concept of universal jurisdiction over the crimes
enumerated therein as evidenced by it requiring State consent. [118] Even further, the Rome Statute
specifically and unequivocally requires that: This Statute is subject to ratification, acceptance or
approval by signatory States.[119] These clearly negate the argument that such has already attained
customary status.

 More importantly, an act of the executive branch with a foreign government must be afforded great
respect. The power to enter into executive agreements has long been recognized to be lodged with the
President. As We held in Neri v. Senate Committee on Accountability of Public Officers and
Investigations, [t]he power to enter into an executive agreement is in essence an executive power. This
authority of the President to enter into executive agreements without the concurrence of the
Legislature has traditionally been recognized in Philippine jurisprudence. [120] The rationale behind this
principle is the inviolable doctrine of separation of powers among the legislative, executive and judicial
branches of the government. Thus, absent any clear contravention of the law, courts should exercise
utmost caution in declaring any executive agreement invalid.

 In light of the above consideration, the position or view that the challenged RP-US Non-Surrender
Agreement ought to be in the form of a treaty, to be effective, has to be rejected.

 WHEREFORE, the petition for certiorari, mandamus and prohibition is hereby DISMISSED for lack of

merit. No costs.

 SO ORDERED.
AKBAYAN V. AQUINO

DECISION

 CARPIO MORALES, J.:

 Petitioners non-government organizations, Congresspersons, citizens and taxpayers seek via the
present petition for mandamus and prohibition to obtain from respondents the full text of the Japan-
Philippines Economic Partnership Agreement (JPEPA) including the Philippine and Japanese offers
submitted during the negotiation process and all pertinent attachments and annexes thereto.

 Petitioners Congressmen Lorenzo R. Taada III and Mario Joyo Aguja filed on January 25, 2005 House
Resolution No. 551 calling for an inquiry into the bilateral trade agreements then being negotiated by
the Philippine government, particularly the JPEPA. The Resolution became the basis of an inquiry
subsequently conducted by the House Special Committee on Globalization (the House Committee) into
the negotiations of the JPEPA.

 In the course of its inquiry, the House Committee requested herein respondent Undersecretary
Tomas Aquino (Usec. Aquino), Chairman of the Philippine Coordinating Committee created under
Executive Order No. 213 (CREATION OF A PHILIPPINE COORDINATING COMMITTEE TO STUDY THE
FEASIBILITY OF THE JAPAN-PHILIPPINES ECONOMIC PARTNERSHIP AGREEMENT) [1] to study and negotiate
the proposed JPEPA, and to furnish the Committee with a copy of the latest draft of the
JPEPA. Usec. Aquino did not heed the request, however.

 Congressman Aguja later requested for the same document, but Usec. Aquino, by letter of November 2,

2005, replied that the Congressman shall be provided with a copy thereof once the negotiations are
completed and as soon as a thorough legal review of the proposed agreement has been conducted.

 In a separate move, the House Committee, through Congressman Herminio G. Teves, requested

Executive Secretary Eduardo Ermita to furnish it with all documents on the subject including the latest
draft of the proposed agreement, the requests and offers etc. [2] Acting on the request, Secretary Ermita,
by letter of June 23, 2005, wrote CongressmanTeves as follows:

 In its letter dated 15 June 2005 (copy enclosed), [the] D[epartment of] F[oreign] A[ffairs] explains
that the Committees request to be furnished all documents on the JPEPA may be difficult to
accomplish at this time, since the proposed Agreement has been a work in progress for about three
years. A copy of the draft JPEPA will however be forwarded to the Committee as soon as the text
thereof is settled and complete. (Emphasis supplied)

 Congressman Aguja also requested NEDA Director-General Romulo Neri and Tariff Commission

Chairman Edgardo Abon, by letter of July 1, 2005, for copies of the latest text of the JPEPA.

 Chairman Abon replied, however, by letter of July 12, 2005 that the Tariff Commission does not have a
copy of the documents being requested, albeit he was certain thatUsec. Aquino would provide the
Congressman with a copy once the negotiation is completed. And by letter of July 18, 2005, NEDA
Assistant Director-General Margarita R.Songco informed the Congressman that his request addressed to
Director-General Neri had been forwarded to Usec. Aquino who would be in the best position to
respond to the request.

 In its third hearing conducted on August 31, 2005, the House Committee resolved to issue a subpoena
for the most recent draft of the JPEPA, but the same was not pursued because by Committee Chairman
Congressman Teves information, then House Speaker Jose de Venecia had requested him to hold in
abeyance the issuance of the subpoena until the President gives her consent to the disclosure of the
documents.[3]

 Amid speculations that the JPEPA might be signed by the Philippine government within December 2005,
the present petition was filed on December 9, 2005.[4] The agreement was to be later signed
on September 9, 2006 by President Gloria Macapagal-Arroyo and Japanese Prime
Minister Junichiro Koizumi in Helsinki, Finland, following which the President endorsed it to the Senate
for its concurrence pursuant to Article VII, Section 21 of the Constitution. To date, the JPEPA is still being
deliberated upon by the Senate.

 The JPEPA, which will be the first bilateral free trade agreement to be entered into by the Philippines
with another country in the event the Senate grants its consent to it, covers a broad range of topics
which respondents enumerate as follows: trade in goods, rules of origin, customs procedures, paperless
trading, trade in services, investment, intellectual property rights, government procurement, movement
of natural persons, cooperation, competition policy, mutual recognition, dispute avoidance and
settlement, improvement of the business environment, and general and final provisions. [5]

 While the final text of the JPEPA has now been made accessible to the public since  September 11, 2006,
[6] 
respondents do not dispute that, at the time the petition was filed up to the filing of petitioners Reply
when the JPEPA was still being negotiated the initial drafts thereof were kept from public view.

 Before delving on the substantive grounds relied upon by petitioners in support of the petition, the
Court finds it necessary to first resolve some material procedural issues.

 Standing

 For a petition for mandamus such as the one at bar to be given due course, it must be instituted by a
party aggrieved by the alleged inaction of any tribunal, corporation, board or person which unlawfully
excludes said party from the enjoyment of a legal right. [7] Respondents deny that petitioners have such
standing to sue. [I]n the interest of a speedy and definitive resolution of the substantive issues raised,
however, respondents consider it sufficient to cite a portion of the ruling in Pimentel v. Office of
Executive Secretary[8]which emphasizes the need for a personal stake in the outcome of the controversy
on questions of standing.

In a petition anchored upon the right of the people to information on matters of public concern, which is
a public right by its very nature, petitioners need not show that they have any legal or special interest in
the result, it being sufficient to show that they are citizens and, therefore, part of the general public
which possesses the right.[9] As the present petition is anchored on the right to information and
petitioners are all suing in their capacity as citizens and groups of citizens including petitioners-members
of the House of Representatives who additionally are suing in their capacity as such, the standing of
petitioners to file the present suit is grounded in jurisprudence.

 Mootness

 Considering, however, that [t]he principal relief petitioners are praying for is the disclosure of the
contents of the JPEPA prior to its finalization between the two States parties,[10] public disclosure of the
text of the JPEPA after its signing by the President, during the pendency of the present petition, has
been largely rendered moot and academic.

 With the Senate deliberations on the JPEPA still pending, the agreement as it now stands cannot yet be
considered as final and binding between the two States. Article 164 of the JPEPA itself provides that the
agreement does not take effect immediately upon the signing thereof. For it must still go through the
procedures required by the laws of each country for its entry into force, viz:

 Article 164

Entry into Force

 This Agreement shall enter into force on the thirtieth day after the date on which the Governments of
the Parties exchange diplomatic notes informing each other that their respective legal procedures
necessary for entry into force of this Agreement have been completed. It shall remain in force unless
terminated as provided for in Article 165. [11] (Emphasis supplied)

 President Arroyos endorsement of the JPEPA to the Senate for concurrence is part of the legal
procedures which must be met prior to the agreements entry into force.

 The text of the JPEPA having then been made accessible to the public, the petition has become moot
and academic to the extent that it seeks the disclosure of the full text thereof.

 The petition is not entirely moot, however, because petitioners seek to obtain, not merely the text of
the JPEPA, but also the Philippine and Japanese offers in the course of the negotiations.[12]

 A discussion of the substantive issues, insofar as they impinge on petitioners demand for access to the
Philippine and Japanese offers, is thus in order.

 Grounds relied upon by petitioners

 Petitioners assert, first, that the refusal of the government to disclose the documents bearing on the
JPEPA negotiations violates their right to information on matters of publicconcern[13] and contravenes
other constitutional provisions on transparency, such as that on the policy of full public disclosure of all
transactions involving public interest.[14]Second, they contend that non-disclosure of the same
documents undermines their right to effective and reasonable participation in all levels of social,
political, and economic decision-making. [15] Lastly, they proffer that divulging the contents of the JPEPA
only after the agreement has been concluded will effectively make the Senate into a mere rubber stamp
of the Executive, in violation of the principle of separation of powers.

 Significantly, the grounds relied upon by petitioners for the disclosure of the latest text of the JPEPA
are, except for the last, the same as those cited for the disclosure of the Philippine and Japanese offers.

 The first two grounds relied upon by petitioners which bear on the merits of respondents claim of
privilege shall be discussed. The last, being purely speculatory given that the Senate is still deliberating
on the JPEPA, shall not.

The JPEPA is a matter of public concern

 To be covered by the right to information, the information sought must meet the threshold
requirement that it be a matter of public concern. Apropos is the teaching of Legaspi v. Civil Service
Commission:

 In determining whether or not a particular information is of public concern there is no rigid test which
can be applied. Public concern like public interest is a term that eludes exact definition.Both terms
embrace a broad spectrum of subjects which the public may want to know, either because these directly
affect their lives, or simply because such matters naturally arouse the interest of an ordinary citizen. In
the final analysis, it is for the courts to determine on a case by case basis whether the matter at issue is
of interest or importance, as it relates to or affects the public.[16] (Underscoring supplied)

 From the nature of the JPEPA as an international trade agreement, it is evident that the Philippine and
Japanese offers submitted during the negotiations towards its execution are matters of public
concern. This, respondents do not dispute. They only claim that diplomatic negotiations are covered by
the doctrine of executive privilege, thus constituting an exception to the right to information and the
policy of full public disclosure.

 Respondents claim of privilege

 It is well-established in jurisprudence that neither the right to information nor the policy of full public
disclosure is absolute, there being matters which, albeit of public concern or public interest, are
recognized as privileged in nature. The types of information which may be considered privileged have
been elucidated in Almonte v. Vasquez,[17] Chavez v. PCGG,[18] Chavez v. Public Estates Authority, [19] and
most recently in Senate v. Ermita[20] where the Court reaffirmed the validity of the doctrine of executive
privilege in this jurisdiction and dwelt on its scope.

 Whether a claim of executive privilege is valid depends on the ground invoked to justify it and
the context in which it is made.[21] In the present case, the ground for respondents claim of privilege is
set forth in their Comment, viz:

 
x x x The categories of information that may be considered privileged includes matters of diplomatic
character and under negotiation and review. In this case, the privileged character of the diplomatic
negotiations has been categorically invoked and clearly explained by respondents  particularly
respondent DTI Senior Undersecretary.

 The documents on the proposed JPEPA as well as the text which is subject to negotiations and legal
review by the parties fall under the exceptions to the right of access to information on matters of public
concern and policy of public disclosure. They come within the coverage of executive privilege. At the
time when the Committee was requesting for copies of such documents, the negotiations were ongoing
as they are still now and the text of the proposed JPEPA is still uncertain and subject to
change. Considering the status and nature of such documents then and now, these are evidently
covered by executive privilege consistent with existing legal provisions and settled jurisprudence.

 Practical and strategic considerations likewise counsel against the disclosure of the rolling texts which
may undergo radical change or portions of which may be totally abandoned. Furthermore,
the negotiations of the representatives of the Philippines as well as of Japan must be allowed to
explore alternatives in the course of the negotiations in the same manner as judicial deliberations and
working drafts of opinions are accorded strict confidentiality.[22] (Emphasis and underscoring supplied)

 The ground relied upon by respondents is thus not simply that the information sought involves a
diplomatic matter, but that it pertains to diplomatic negotiations then in progress.

 Privileged character of diplomatic negotiations

 The privileged character of diplomatic negotiations has been recognized in this jurisdiction. In discussing
valid limitations on the right to information, the Court in Chavez v. PCGG held that information on inter-
government exchanges prior to the conclusion of treaties and executive agreements may be subject to
reasonable safeguards for the sake of national interest. [23] Even earlier, the same privilege was upheld
in Peoples Movement for Press Freedom (PMPF) v. Manglapus[24] wherein the Court discussed the
reasons for the privilege in more precise terms.

 In PMPF v. Manglapus, the therein petitioners were seeking information from the Presidents
representatives on the state of the then on-going negotiations of the RP-US Military Bases Agreement.
[25]
 The Court denied the petition, stressing that secrecy of negotiations with foreign countries is not
violative of the constitutional provisions of freedom of speech or of the press nor of the freedom of
access to information. The Resolution went on to state, thus:

 The nature of diplomacy requires centralization of authority and expedition of decision which are
inherent in executive action. Another essential characteristic of diplomacy is its confidential
nature. Although much has been said about open and secret diplomacy, with disparagement of the
latter, Secretaries of State Hughes and Stimson have clearly analyzed and justified the practice. In the
words of Mr. Stimson:

 
A complicated negotiation . . . cannot be carried through without many, many private talks and
discussion, man to man; many tentative suggestions and proposals.Delegates from other countries
come and tell you in confidence of their troubles at home and of their differences with other countries
and with other delegates;  they tell you of what they would do under certain circumstances and would
not do under other circumstances. . . If these reports . . . should become public . . . who would ever
trust American Delegations in another conference? (United States Department of State, Press Releases,
June 7, 1930, pp. 282-284.).

 x x x x

 There is frequent criticism of the secrecy in which negotiation with foreign powers on nearly all
subjects is concerned. This, it is claimed, is incompatible with the substance of democracy. As
expressed by one writer, It can be said that there is no more rigid system of silence anywhere in the
world. (E.J. Young, Looking Behind the Censorship, J. B. Lippincott Co., 1938) President Wilson in starting
his efforts for the conclusion of the World War declared that we must have open covenants, openly
arrived at. He quickly abandoned his thought.

 No one who has studied the question believes that such a method of publicity is possible. In the
moment that negotiations are started, pressure groups attempt to muscle in. An ill-timed speech by
one of the parties or a frank declaration of the concession which are exacted or offered on both sides
would quickly lead to widespread propaganda to block the negotiations. After a treaty has been
drafted and its terms are fully published, there is ample opportunity for discussion before it is
approved. (The New American Government and Its Works, James T. Young, 4 th Edition, p. 194) (Emphasis
and underscoring supplied)

 Still in PMPF v. Manglapus, the Court adopted the doctrine in U.S. v. Curtiss-Wright Export Corp.[26] that
the President is the sole organ of the nation in its negotiations with foreign countries, viz:

 x x x In this vast external realm, with its important, complicated, delicate and manifold problems, the
President alone has the power to speak or listen as a representative of the nation. He makestreaties
with the advice and consent of the Senate; but he alone negotiates. Into the field of negotiation the
Senate cannot intrude; and Congress itself is powerless to invade it. As Marshall said in his great
argument of March 7, 1800, in the House of Representatives, The President is the sole organ of the
nation in its external relations, and its sole representative with foreign nations. Annals, 6th Cong., col.
613. . . (Emphasis supplied; underscoring in the original)

 Applying the principles adopted in PMPF v. Manglapus, it is clear that while the final text of the JPEPA
may not be kept perpetually confidential since there should be ample opportunity for discussion before
[a treaty] is approved the offers exchanged by the parties during the negotiations continue to be
privileged even after the JPEPA is published. It is reasonable to conclude that the Japanese
representatives submitted their offers with the understanding that historic confidentiality[27] would
govern the same. Disclosing these offers could impair the ability of the Philippines to deal not only
with Japan but with other foreign governments in future negotiations.
 A ruling that Philippine offers in treaty negotiations should now be open to public scrutiny would
discourage future Philippine representatives from frankly expressing their views during
negotiations. While, on first impression, it appears wise to deter Philippine representatives from
entering into compromises, it bears noting that treaty negotiations, or any negotiation for that
matter, normally involve a process of quid pro quo, and oftentimes negotiators have to be willing to
grant concessions in an area of lesser importance in order to obtain more favorable terms in an area
of greater national interest. Apropos are the following observations of Benjamin S. Duval, Jr.:

 x x x [T]hose involved in the practice of negotiations appear to be in agreement that publicity leads to
grandstanding, tends to freeze negotiating positions, and inhibits the give-and-take essential to
successful negotiation. As Sissela Bok points out, if negotiators have more to gain from being approved
by their own sides than by making a reasoned agreement with competitors or adversaries, then they are
inclined to 'play to the gallery . . .'' In fact, the public reaction may leave them little option. It would be
a brave, or foolish, Arab leader who expressed publicly a willingness for peace with Israel that did not
involve the return of the entire West Bank, or Israeli leader who stated publicly a willingness to remove
Israel's existing settlements from Judea and Samaria in return for peace.[28] (Emphasis supplied)

 Indeed, by hampering the ability of our representatives to compromise, we may be jeopardizing higher
national goals for the sake of securing less critical ones.

Diplomatic negotiations, therefore, are recognized as privileged in this jurisdiction, the JPEPA
negotiations constituting no exception. It bears emphasis, however, that such privilege is
only presumptive. For as Senate v. Ermita holds, recognizing a type of information as privileged does not
mean that it will be considered privileged in all instances.Only after a consideration of the context in
which the claim is made may it be determined if there is a public interest that calls for the disclosure of
the desired information, strong enough to overcome its traditionally privileged status.

 Whether petitioners have established the presence of such a public interest shall be discussed later. For
now, the Court shall first pass upon the arguments raised by petitioners against the application of  PMPF
v. Manglapus to the present case.

 Arguments proffered by petitioners against the application of PMPF v. Manglapus

 Petitioners argue that PMPF v. Manglapus cannot be applied in toto to the present case, there

being substantial factual distinctions between the two.

 To petitioners, the first and most fundamental distinction lies in the nature of the treaty involved. They
stress that PMPF v. Manglapus involved the Military Bases Agreement which necessarily pertained to
matters affecting national security; whereas the present case involves an economic treaty that seeks to
regulate trade and commerce between the Philippines and Japan, matters which, unlike those covered
by the Military Bases Agreement, are not so vital to national security to disallow their disclosure.

 
Petitioners argument betrays a faulty assumption that information, to be considered privileged, must
involve national security. The recognition in Senate v. Ermita[29] that executive privilege has
encompassed claims of varying kinds, such that it may even be more accurate to speak of executive
privileges, cautions against such generalization.

 While there certainly are privileges grounded on the necessity of safeguarding national security such as
those involving military secrets, not all are founded thereon. One example is the informers privilege, or
the privilege of the Government not to disclose the identity of a person or persons who furnish
information of violations of law to officers charged with the enforcement of that law. [30] The suspect
involved need not be so notorious as to be a threat to national security for this privilege to apply in any
given instance.Otherwise, the privilege would be inapplicable in all but the most high-profile cases, in
which case not only would this be contrary to long-standing practice. It would also be highly prejudicial
to law enforcement efforts in general.

 Also illustrative is the privilege accorded to presidential communications, which are presumed

privileged without distinguishing between those which involve matters of national security and those
which do not, the rationale for the privilege being that

 x x x [a] frank exchange of exploratory ideas and assessments, free from the glare of publicity and
pressure by interested parties, is essential to protect the independence of decision-makingof those
tasked to exercise Presidential, Legislative and Judicial power. x x x[31] (Emphasis supplied)

 In the same way that the privilege for judicial deliberations does not depend on the nature of the case
deliberated upon, so presidential communications are privileged whether they involve matters of
national security.

It bears emphasis, however, that the privilege accorded to presidential communications is not absolute,
one significant qualification being that the Executive cannot, any more than the other branches of
government, invoke a general confidentiality privilege to shield its officials and employees from
investigations by the proper governmental institutions into possible criminal wrongdoing. [32] This
qualification applies whether the privilege is being invoked in the context of a judicial trial or a
congressional investigation conducted in aid of legislation. [33]

 Closely related to the presidential communications privilege is the deliberative process

privilege recognized in the United States. As discussed by the U.S. Supreme Court inNLRB v. Sears,
Roebuck & Co,[34] deliberative process covers documents reflecting advisory opinions, recommendations
and deliberations comprising part of a process by which governmental decisions and policies are
formulated. Notably, the privileged status of such documents rests, not on the need to protect national
security but, on the obvious realization that officials will not communicate candidly among themselves  if
each remark is a potential item of discovery and front page news, the objective of the privilege being to
enhance the quality of agency decisions.  [35]

 
The diplomatic negotiations privilege bears a close resemblance to the deliberative process and
presidential communications privilege. It may be readily perceived that the rationale for the confidential
character of diplomatic negotiations, deliberative process, and presidential communications is similar, if
not identical.

The earlier discussion on PMPF v. Manglapus[36] shows that the privilege for diplomatic negotiations is
meant to encourage a frank exchange of exploratory ideas between the negotiating parties by shielding
such negotiations from public view. Similar to the privilege for presidential communications, the
diplomatic negotiations privilege seeks, through the same means, to protect the independence in
decision-making of the President, particularly in its capacity as the sole organ of the nation in its external
relations, and its sole representative with foreign nations. And, as with the deliberative process
privilege, the privilege accorded to diplomatic negotiations arises, not on account of the content of the
information per se, but because the information is part of a process of deliberation which, in pursuit of
the public interest, must be presumed confidential.

 The decision of the U.S. District Court, District of Columbia in Fulbright & Jaworski v. Department of the
Treasury[37] enlightens on the close relation between diplomatic negotiations and deliberative process
privileges. The plaintiffs in that case sought access to notes taken by a member of the U.S. negotiating
team during the U.S.-French taxtreaty negotiations. Among the points noted therein were the issues to
be discussed, positions which the French and U.S. teams took on some points, the draft language agreed
on, and articles which needed to be amended. Upholding the confidentiality of those notes, Judge Green
ruled, thus:

 Negotiations between two countries to draft a treaty represent a true example of a deliberative
process. Much give-and-take must occur for the countries to reach an accord. A description of the
negotiations at any one point would not provide an onlooker a summary of the discussions which could
later be relied on as law. It would not be working law as the points discussed and positions agreed on
would be subject to change at any date until the treaty was signed by the President and ratified by the
Senate.

The policies behind the deliberative process privilege support non-disclosure. Much harm could

accrue to the negotiations process if these notes were revealed. Exposure of the pre-agreement
positions of the French negotiators might well offend foreign governments  and would lead to less
candor by the U. S. in recording the events of the negotiations process . As several months pass in
between negotiations, this lack of record could hinder readily the U. S. negotiating team. Further
disclosure would reveal prematurely adopted policies. If these policies should be changed, public
confusion would result easily.

Finally, releasing these snapshot views of the negotiations would be comparable to releasing drafts of
the treaty, particularly when the notes state the tentative provisions and language agreed on. As
drafts of regulations typically are protected by the deliberative process privilege, Arthur Andersen &
Co. v. Internal Revenue Service, C.A. No. 80-705 (D.C.Cir., May 21, 1982) , drafts of treaties should be
accorded the same protection. (Emphasis and underscoring supplied)
 

Clearly, the privilege accorded to diplomatic negotiations follows as a logical consequence from the
privileged character of the deliberative process.

 The Court is not unaware that in Center for International Environmental Law (CIEL), et al. v. Office of
U.S. Trade Representative[38] where the plaintiffs sought information relating to the just-completed
negotiation of a United States-Chile Free Trade Agreement the same district court, this time under Judge
Friedman, consciously refrained from applying the doctrine in Fulbright and ordered the disclosure of
the information being sought.

 Since the factual milieu in CIEL seemed to call for the straight application of the doctrine in Fulbright, a
discussion of why the district court did not apply the same would help illumine this Courts own reasons
for deciding the present case along the lines of Fulbright.

 In both Fulbright and CIEL, the U.S. government cited a statutory basis for withholding information,

namely, Exemption 5 of the Freedom of Information Act (FOIA). [39] In order to qualify for protection
under Exemption 5, a document must satisfy two conditions: (1) it must be either inter-agency or intra-
agency in nature, and (2) it must be bothpre-decisional and part of the agency's deliberative or
decision-making process.[40]

 Judge Friedman, in CIEL, himself cognizant of a superficial similarity of context between the two cases,
based his decision on what he perceived to be a significant distinction: he found the negotiators notes
that were sought in Fulbright to be clearly internal, whereas the documents being sought in CIEL were
those produced by or exchanged with an outside party, i.e. Chile. The documents subject
of Fulbright being clearly internal in character, the question of disclosure therein turned not on the
threshold requirement of Exemption 5 that the document be inter-agency, but on whether the
documents were part of the agency's pre-decisional deliberative process. On this basis, Judge Friedman
found that Judge Green's discussion [in Fulbright] of the harm that could result from disclosure
therefore is irrelevant, since the documents at issue [in CIEL] are not inter-agency, and the Court does
not reach the question of deliberative process. (Emphasis supplied)

 In fine, Fulbright was not overturned. The court in CIEL merely found the same to be irrelevant in light
of its distinct factual setting. Whether this conclusion was valid a question on which this Court would not
pass the ruling in Fulbright that [n]egotiations between two countries to draft a treaty represent a true
example of a deliberative process was left standing, since the CIEL court explicitly stated that it did not
reach the question of deliberative process.

 Going back to the present case, the Court recognizes that the information sought by petitioners
includes documents produced and communicated by a party external to the Philippine government,
namely, the Japanese representatives in the JPEPA negotiations, and to that extent this case is closer to
the factual circumstances of CIEL than those ofFulbright.

 
Nonetheless, for reasons which shall be discussed shortly, this Court echoes the principle articulated
in Fulbright that the public policy underlying the deliberative process privilege requires that diplomatic
negotiations should also be accorded privileged status, even if the documents subject of the present
case cannot be described as purely internal in character.

 It need not be stressed that in CIEL, the court ordered the disclosure of information based on its finding
that the first requirement of FOIA Exemption 5 that the documents be inter-agency was not met. In
determining whether the government may validly refuse disclosure of the exchanges between
the U.S. and Chile, it necessarily had to deal with this requirement, it being laid down by a statute
binding on them.

 In this jurisdiction, however, there is no counterpart of the FOIA, nor is there any statutory requirement
similar to FOIA Exemption 5 in particular. Hence, Philippine courts, when assessing a claim of privilege
for diplomatic negotiations, are more free to focus directly on the issue of whether the privilege being
claimed is indeed supported by public policy, without having to consider as the CIEL court did if these
negotiations fulfill a formal requirement of being inter-agency. Important though that requirement may
be in the context of domestic negotiations, it need not be accorded the same significance when dealing
with international negotiations.

 There being a public policy supporting a privilege for diplomatic negotiations for the reasons explained
above, the Court sees no reason to modify, much less abandon, the doctrine in PMPF v. Manglapus.

 A second point petitioners proffer in their attempt to differentiate PMPF v. Manglapus from the present

case is the fact that the petitioners therein consisted entirely of members of the mass media, while
petitioners in the present case include members of the House of Representatives who invoke their right
to information not just as citizens but as members of Congress.

Petitioners thus conclude that the present case involves the right of members of Congress to demand
information on negotiations of international trade agreements from the Executive branch, a matter
which was not raised in PMPF v. Manglapus.

 While indeed the petitioners in PMPF v. Manglapus consisted only of members of the mass media, it
would be incorrect to claim that the doctrine laid down therein has no bearing on a controversy such as
the present, where the demand for information has come from members of Congress, not only from
private citizens.

 The privileged character accorded to diplomatic negotiations does not ipso facto lose all force and
effect simply because the same privilege is now being claimed under different
circumstances. The probability of the claim succeeding in the new context might differ, but to say that
the privilege, as such, has no validity at all in that context is another matter altogether.

 The Courts statement in Senate v. Ermita that presidential refusals to furnish information may be
actuated by any of at least three distinct kinds of considerations [state secrets privilege, informers
privilege, and a generic privilege for internal deliberations], and may be asserted,  with differing degrees
of success, in the context of either judicial or legislative investigations, [41] implies that a privilege, once
recognized, may be invoked under different procedural settings. That this principle holds true
particularly with respect to diplomatic negotiations may be inferred from PMPF v. Manglapus itself,
where the Court held that it is the President alone who negotiates treaties, and not even the Senate or
the House of Representatives, unless asked, may intrude upon that process.

 Clearly, the privilege for diplomatic negotiations may be invoked not only against citizens demands for
information, but also in the context of legislative investigations.

 Hence, the recognition granted in PMPF v. Manglapus to the privileged character of diplomatic
negotiations cannot be considered irrelevant in resolving the present case, the contextual differences
between the two cases notwithstanding.

As third and last point raised against the application of  PMPF v. Manglapus in this case, petitioners
proffer that the socio-political and historical contexts of the two cases are worlds apart.  They claim that
the constitutional traditions and concepts prevailing at the time PMPF v. Manglapus came about,
particularly the school of thought that the requirements of foreign policy and the ideals of transparency
were incompatible with each other or the incompatibility hypothesis, while valid when international
relations were still governed by power, politics and wars, are no longer so in this age of international
cooperation.[42]

 Without delving into petitioners assertions respecting the incompatibility hypothesis, the Court notes
that the ruling in PMPF v. Manglapus is grounded more on the nature of treaty negotiations as such
than on a particular socio-political school of thought. If petitioners are suggesting that the nature of
treaty negotiations have so changed that [a]n ill-timed speech by one of the parties or a frank
declaration of the concession which are exacted or offered on both sides no longer lead[s] to
widespread propaganda to block the negotiations, or that parties in treaty negotiations  no longer expect
their communications to be governed by historic confidentiality, the burden is on them to substantiate
the same. This petitioners failed to discharge.

 Whether the privilege applies only at certain stages of the negotiation process

 Petitioners admit that diplomatic negotiations on the JPEPA are entitled to a reasonable amount of
confidentiality so as not to jeopardize the diplomatic process. They argue, however, that the same is
privileged only at certain stages of the negotiating process, after which such information must
necessarily be revealed to the public. [43] They add that the duty to disclose this information was vested in
the government when the negotiations moved from the formulation and exploratory stage to the
firming up of definite propositions or official recommendations, citing Chavez v. PCGG[44] and Chavez v.
PEA.[45]

 The following statement in Chavez v. PEA, however, suffices to show that the doctrine in both that case
and Chavez v. PCGG with regard to the duty to disclose definite propositions of the government does
not apply to diplomatic negotiations:
We rule, therefore, that the constitutional right to information includes official information on on-going
negotiations before a final contract. The information, however, must constitutedefinite
propositions by the government and should not cover recognized exceptions  like privileged
information, military and diplomatic secrets and similar matters affecting national security and public
order. x x x[46] (Emphasis and underscoring supplied)

 It follows from this ruling that even definite propositions of the government may not be disclosed if
they fall under recognized exceptions. The privilege for diplomatic negotiations is clearly among the
recognized exceptions, for the footnote to the immediately quoted ruling cites PMPF v. Manglapus itself
as an authority.

 Whether there is sufficient public interest to overcome the claim of privilege

 It being established that diplomatic negotiations enjoy a presumptive privilege against disclosure, even
against the demands of members of Congress for information, the Court shall now determine whether
petitioners have shown the existence of a public interest sufficient to overcome the privilege in this
instance.

 To clarify, there are at least two kinds of public interest that must be taken into account. One is the
presumed public interest in favor of keeping the subject information confidential, which is the reason
for the privilege in the first place, and the other is the public interest in favor of disclosure, the
existence of which must be shown by the party asking for information.  [47]

 The criteria to be employed in determining whether there is a sufficient public interest in favor of
disclosure may be gathered from cases such as U.S. v. Nixon,[48] Senate Select Committee on Presidential
Campaign Activities v. Nixon,[49] and In re Sealed Case.[50]

 U.S. v. Nixon, which involved a claim of the presidential communications privilege against the
subpoena duces tecum of a district court in a criminal case, emphasized the need to balance such claim
of privilege against the constitutional duty of courts to ensure a fair administration of  criminal justice.

 x x x the allowance of the privilege to withhold evidence that is demonstrably relevant in a criminal
trial would cut deeply into the guarantee of due process of law and gravely impair the basic function
of the courts. A Presidents acknowledged need for confidentiality in the communications of his office
is general in nature, whereas the constitutional need for production of relevant evidence in a criminal
proceeding is specific and central to the fair adjudication of a particular criminal case in the
administration of justice. Without access to specific facts a criminal prosecution may be totally
frustrated. The Presidents broad interest in confidentiality of communications will not be vitiated by
disclosure of a limited number of conversations preliminarily shown to have some bearing on the
pending criminal cases. (Emphasis, italics and underscoring supplied)

 Similarly, Senate Select Committee v. Nixon,[51] which involved a claim of the presidential

communications privilege against the subpoena duces tecum of a Senate committee, spoke of the need
to balance such claim with the duty of Congress to perform its  legislative functions.
 The staged decisional structure established in Nixon v. Sirica was designed to ensure that the President
and those upon whom he directly relies in the performance of his duties could continue to work under a
general assurance that their deliberations would remain confidential. So long as the presumption that
the public interest favors confidentiality can be defeated only by astrong showing of need by another
institution of government- a showing that the responsibilities of that institution cannot responsibly be
fulfilled without access to records of the President's deliberations- we believed in Nixon v. Sirica, and
continue to believe, that the effective functioning of the presidential office will not be impaired. x x x

 x x x x

 The sufficiency of the Committee's showing of need has come to depend, therefore, entirely on
whether the subpoenaed materials are critical to the performance of its legislative
functions. x x x (Emphasis and underscoring supplied)

 In re Sealed Case[52] involved a claim of the deliberative process and presidential communications
privileges against a subpoena duces tecum of a grand jury. On the claim of deliberative process privilege,
the court stated:

 The deliberative process privilege is a qualified privilege and can be overcome by a sufficient showing

of need. This need determination is to be made flexibly on a case-by-case, ad hoc basis . "[E]ach time
[the deliberative process privilege] is asserted the district court must undertake a fresh balancing of the
competing interests," taking into account factors such as "the relevance of the evidence," "the
availability of other evidence," "the seriousness of the litigation," "the role of the government," and
the "possibility of future timidity by government employees. x x x (Emphasis, italics and underscoring
supplied)

 Petitioners have failed to present the strong and sufficient showing of need referred to in the
immediately cited cases. The arguments they proffer to establish their entitlement to the subject
documents fall short of this standard.

 Petitioners go on to assert that the non-involvement of the Filipino people in the JPEPA negotiation
process effectively results in the bargaining away of their economic and property rights without their
knowledge and participation, in violation of the due process clause of the Constitution. They claim,
moreover, that it is essential for the people to have access to the initial offers exchanged during the
negotiations since only through such disclosure can their constitutional right to effectively participate in
decision-making be brought to life in the context of international trade agreements.

 Whether it can accurately be said that the Filipino people were not involved in the JPEPA negotiations is
a question of fact which this Court need not resolve. Suffice it to state that respondents had presented
documents purporting to show that public consultations were conducted on the JPEPA. Parenthetically,
petitioners consider these alleged consultations as woefully selective and inadequate. [53]

 
AT ALL EVENTS, since it is not disputed that the offers exchanged by the Philippine and Japanese
representatives have not been disclosed to the public, the Court shall pass upon the issue of whether
access to the documents bearing on them is, as petitioners claim, essential to their right to participate in
decision-making.

 The case for petitioners has, of course, been immensely weakened by the disclosure of the full text of
the JPEPA to the public since September 11, 2006, even as it is still being deliberated upon by the Senate
and, therefore, not yet binding on the Philippines. Were the Senate to concur with the validity of the
JPEPA at this moment, there has already been, in the words of PMPF v. Manglapus, ample opportunity
for discussion before [the treaty] is approved.

 The text of the JPEPA having been published, petitioners have failed to convince this Court that they will
not be able to meaningfully exercise their right to participate in decision-making unless the initial offers
are also published.

 It is of public knowledge that various non-government sectors and private citizens have already publicly
expressed their views on the JPEPA, their comments not being limited to general observations thereon
but on its specific provisions. Numerous articles and statements critical of the JPEPA have been posted
on the Internet.[54] Given these developments, there is no basis for petitioners claim that access to the
Philippine and Japanese offers is essential to the exercise of their right to participate in decision-making.

 Petitioner-members of the House of Representatives additionally anchor their claim to have a right to
the subject documents on the basis of Congress inherent power to regulate commerce, be it domestic or
international. They allege that Congress cannot meaningfully exercise the power to regulate
international trade agreements such as the JPEPA without being given copies of the initial offers
exchanged during the negotiations thereof. In the same vein, they argue that the President cannot
exclude Congress from the JPEPA negotiations since whatever power and authority the President has to
negotiate international trade agreements is derived only by delegation of Congress, pursuant to Article
VI, Section 28(2) of the Constitution and Sections 401 and 402 of Presidential Decree No. 1464. [55]

 The subject of Article VI Section 28(2) of the Constitution is not the power to negotiate treaties and
international agreements, but the power to fix tariff rates, import and export quotas, and other
taxes. Thus it provides:

 (2) The Congress may, by law, authorize the President to fix within specified limits, and subject to such
limitations and restrictions as it may impose, tariff rates, import and export quotas, tonnage
and wharfage dues, and other duties or imposts within the framework of the national development
program of the Government.

 As to the power to negotiate treaties, the constitutional basis thereof is Section 21 of Article VII the
article on the Executive Department which states:

 No treaty or international agreement shall be valid and effective unless concurred in by at least two-
thirds of all the Members of the Senate.
The doctrine in PMPF v. Manglapus that the treaty-making power is exclusive to the President, being the
sole organ of the nation in its external relations, was echoed in BAYAN v. Executive
Secretary[56] where the Court held:

 By constitutional fiat and by the intrinsic nature of his office, the President, as head of State, is
the sole organ and authority in the external affairs of the country. In many ways, the President is the
chief architect of the nation's foreign policy; his "dominance in the field of foreign relations is (then)
conceded." Wielding vast powers and influence, his conduct in the external affairs of the nation,
as Jefferson describes, is executive altogether.

 As regards the power to enter into treaties or international agreements, the Constitution vests the
same in the President, subject only to the concurrence of at least two thirds vote of all the members
of the Senate. In this light, the negotiation of the VFA and the subsequent ratification of the agreement
are exclusive acts which pertain solely to the President, in the lawful exercise of  his vast executive and
diplomatic powers granted him no less than by the fundamental law itself. Into the field of negotiation
the Senate cannot intrude, and Congress itself is powerless to invade it. x x x (Italics in the
original; emphasis and underscoring supplied)

 The same doctrine was reiterated even more recently in Pimentel v. Executive Secretary[57] where the
Court ruled:

 In our system of government, the President, being the head of state, is regarded as the sole organ and
authority in external relations and is the country's sole representative with foreign nations. As the
chief architect of foreign policy, the President acts as the country's mouthpiece with respect to
international affairs. Hence, the President is vested with the authority to deal with foreign states and
governments, extend or withhold recognition, maintain diplomatic relations, enter into treaties, and
otherwise transact the business of foreign relations. In the realm of treaty-making, the President has
the sole authority to negotiate with other states.

 Nonetheless, while the President has the sole authority to negotiate and enter into treaties, the
Constitution provides a limitation to his power by requiring the concurrence of 2/3 of all the members
of the Senate for the validity of the treaty entered into by him. x x x (Emphasis and underscoring
supplied)

 While the power then to fix tariff rates and other taxes clearly belongs to Congress, and is exercised by
the President only by delegation of that body, it has long been recognized that the power to enter into
treaties is vested directly and exclusively in the President, subject only to the concurrence of at least
two-thirds of all the Members of the Senate for the validity of the treaty.  In this light, the authority of
the President to enter into trade agreements with foreign nations provided under P.D. 1464 [58] may be
interpreted as an acknowledgment of a power already inherent in its office. It may not be used as basis
to hold the President or its representatives accountable to Congress for the conduct of treaty
negotiations.
This is not to say, of course, that the Presidents power to enter into treaties is unlimited but for the
requirement of Senate concurrence, since the President must still ensure that all treaties
will substantively conform to all the relevant provisions of the Constitution.

 It follows from the above discussion that Congress, while possessing vast legislative powers, may
not interfere in the field of treaty negotiations. While Article VII, Section 21 provides for Senate
concurrence, such pertains only to the validity of the treaty under consideration, not to the conduct of
negotiations attendant to its conclusion. Moreover, it is not even Congress as a whole that has
been given the authority to concur as a means of checking the treaty-making power of the President,
but only the Senate.

 Thus, as in the case of petitioners suing in their capacity as private citizens, petitioners-members of the
House of Representatives fail to present a sufficient showing of need that the information sought is
critical to the performance of the functions of Congress, functions that do not include treaty-
negotiation.

 Respondents alleged failure to timely claim executive privilege

 On respondents invocation of executive privilege, petitioners find the same defective, not having been
done seasonably as it was raised only in their Comment to the present petition and not during the
House Committee hearings.

That respondents invoked the privilege for the first time only in their Comment to the present
petition does not mean that the claim of privilege should not be credited.Petitioners position
presupposes that an assertion of the privilege should have been made during the House Committee
investigations, failing which respondents are deemed to have waived it.

 When the House Committee and petitioner-Congressman Aguja requested respondents for copies of

the documents subject of this case, respondents replied that the negotiations were still on-going and
that the draft of the JPEPA would be released once the text thereof is settled and complete. There was
no intimation that the requested copies are confidential in nature by reason of public policy. The
response may not thus be deemed a claim of privilege by the standards of  Senate v. Ermita, which
recognizes as claims of privilege only those which are accompanied by precise and certain reasons for
preserving the confidentiality of the information being sought.

 Respondents failure to claim the privilege during the House Committee hearings may not, however, be
construed as a waiver thereof by the Executive branch. As the immediately preceding paragraph
indicates, what respondents received from the House Committee and petitioner-
Congressman Aguja were mere requests for information. And as priorlystated, the House Committee
itself refrained from pursuing its earlier resolution to issue a subpoena duces tecum on account of then
Speaker Jose de Venecias alleged request to Committee Chairperson Congressman Teves to hold the
same in abeyance.

 
While it is a salutary and noble practice for Congress to refrain from issuing subpoenas to executive
officials out of respect for their office until resort to it becomes necessary, the fact remains that such
requests are not a compulsory process. Being mere requests, they do not strictly call for an assertion of
executive privilege.

The privilege is an exemption to Congress power of inquiry. [59] So long as Congress itself finds no cause
to enforce such power, there is no strict necessity to assert the privilege. In this light, respondents
failure to invoke the privilege during the House Committee investigations did not amount to a waiver
thereof.

 The Court observes, however, that the claim of privilege appearing in respondents Comment to this
petition fails to satisfy in full the requirement laid down in Senate v. Ermitathat the claim should be
invoked by the President or through the Executive Secretary by order of the President.[60] Respondents
claim of privilege is being sustained, however, its flaw notwithstanding, because of circumstances
peculiar to the case.

 The assertion of executive privilege by the Executive Secretary, who is one of the respondents herein,
without him adding the phrase by order of the President, shall be considered as partially complying with
the requirement laid down in Senate v. Ermita. The requirement that the phrase by order of the
President should accompany the Executive Secretarys claim of privilege is a new rule laid down for the
first time in Senate v. Ermita, which was not yet final and executory at the time respondents filed their
Comment to the petition.[61] A strict application of this requirement would thus be unwarranted in this
case.

 Response to the Dissenting Opinion of the Chief Justice

 We are aware that behind the dissent of the Chief Justice lies a genuine zeal to protect our peoples
right to information against any abuse of executive privilege. It is a zeal that We fully share.

 The Court, however, in its endeavor to guard against the abuse of executive privilege, should be careful
not to veer towards the opposite extreme, to the point that it would strike down as invalid even a
legitimate exercise thereof.

 We respond only to the salient arguments of the Dissenting Opinion which have not yet been
sufficiently addressed above.

 1. After its historical discussion on the allocation of power over international trade agreements in
the United States, the dissent concludes that it will be turning somersaults with history to contend that
the President is the sole organ for external relations in that jurisdiction.  With regard to this opinion, We
make only the following observations:

 
There is, at least, a core meaning of the phrase sole organ of the nation in its external relations which is
not being disputed, namely, that the power to directly negotiate treaties and international agreements
is vested by our Constitution only in the Executive. Thus, the dissent states that Congress has the power
to regulate commerce with foreign nationsbut does not have the power to negotiate international
agreements directly.[62]

 What is disputed is how this principle applies to the case at bar.

 The dissent opines that petitioner-members of the House of Representatives, by asking for the subject
JPEPA documents, are not seeking to directly participate in the negotiations of the JPEPA, hence, they
cannot be prevented from gaining access to these documents.

 On the other hand, We hold that this is one occasion where the following ruling in Agan v.
PIATCO[63] and in other cases both before and since should be applied:

 This Court has long and consistently adhered to the legal maxim that those that cannot be done
directly cannot be done indirectly. To declare the PIATCO contracts valid despite the clear statutory
prohibition against a direct government guarantee would not only make a mockery of what the BOT
Law seeks to prevent -- which is to expose the government to the risk of incurring a monetary obligation
resulting from a contract of loan between the project proponent and its lenders and to which the
Government is not a party to -- but would also render the BOT Law useless for what it seeks to
achieve - to make use of the resources of the private sector in the financing, operation and maintenance
of infrastructure and development projects which are necessary for national growth and development
but which the government, unfortunately, could ill-afford to finance at this point in time. [64]

 Similarly, while herein petitioners-members of the House of Representatives may not have been aiming
to participate in the negotiations directly, opening the JPEPA negotiations to their scrutiny even to the
point of giving them access to the offers exchanged between the Japanese and Philippine
delegations would have made a mockery of what the Constitution sought to prevent and rendered it
useless for what it sought to achieve when it vested the power of direct negotiation solely with the
President.

 What the U.S. Constitution sought to prevent and aimed to achieve in defining the treaty-making power
of the President, which our Constitution similarly defines, may be gathered from Hamiltons explanation
of why the U.S. Constitution excludes the House of Representatives from the treaty-making process:

 x x x The fluctuating, and taking its future increase into account, the multitudinous composition of that
body, forbid us to expect in it those qualities which are essential to the proper execution of such a
trust. Accurate and comprehensive knowledge of foreign politics; a steady and systematic adherence to
the same views; a nice and uniform sensibility to national character, decision,secrecy and dispatch; are
incompatible with a body so variable and so numerous. The very complication of the business by
introducing a necessity of the concurrence of so many different bodies, would of itself afford a solid
objection. The greater frequency of the calls upon the house of representatives, and the greater length
of time which it would often be necessary to keep them together when convened, to obtain their
sanction in the progressive stages of a treaty, would be source of so great inconvenience and expense,
as alone ought to condemn the project.[65]

 These considerations a fortiori apply in this jurisdiction, since the Philippine Constitution, unlike that of
the U.S., does not even grant the Senate the power to advise the Executive in the making of treaties, but
only vests in that body the power to concur in the validity of the treaty after negotiations have been
concluded.[66] Much less, therefore, should it be inferred that the House of Representatives has this
power.

Since allowing petitioner-members of the House of Representatives access to the subject JPEPA
documents would set a precedent for future negotiations, leading to the contravention of the public
interests articulated above which the Constitution sought to protect, the subject documents should not
be disclosed.

 2. The dissent also asserts that respondents can no longer claim the diplomatic secrets privilege over
the subject JPEPA documents now that negotiations have been concluded, since their reasons for
nondisclosure cited in the June 23, 2005 letter of Sec. Ermita, and later in their Comment, necessarily
apply only for as long as the negotiations were still pending;

 In their Comment, respondents contend that the negotiations of the representatives of
the Philippines as well as of Japan must be allowed to explore alternatives in the course of the
negotiations in the same manner as judicial deliberations and working drafts of opinions are accorded
strict confidentiality. That respondents liken the documents involved in the JPEPA negotiations to
judicial deliberations and working drafts of opinions evinces, by itself, that they were claiming
confidentiality not only until, but even after, the conclusion of the negotiations.

 Judicial deliberations do not lose their confidential character once a decision has been promulgated by
the courts. The same holds true with respect to working drafts of opinions, which are comparable to
intra-agency recommendations. Such intra-agency recommendations are privileged even after the
position under consideration by the agency has developed into a definite proposition, hence, the rule in
this jurisdiction that agencies have the duty to disclose only definite propositions, and not the inter-
agency and intra-agency communications during the stage when common assertions are still being
formulated.[67]

 3. The dissent claims that petitioner-members of the House of Representatives have sufficiently shown
their need for the same documents to overcome the privilege. Again, We disagree.

 The House Committee that initiated the investigations on the JPEPA did not pursue its earlier intention
to subpoena the documents. This strongly undermines the assertion that access to the same documents
by the House Committee is critical to the performance of its legislative functions.  If the documents were
indeed critical, the House Committee should have, at the very least, issued a subpoena duces tecum or,
like what the Senate did in Senate v. Ermita, filed the present petition as a legislative body, rather than
leaving it to the discretion of individual Congressmen whether to pursue an action or not.  Such acts
would have served as strong indicia that Congress itself finds the subject information to be critical to its
legislative functions.

 Further, given that respondents have claimed executive privilege, petitioner-members of the House of
Representatives should have, at least, shown how its lack of access to the Philippine and Japanese offers
would hinder the intelligent crafting of legislation. Mere assertion that the JPEPA covers a subject
matter over which Congress has the power to legislate would not suffice. As Senate Select Committee
v. Nixon[68] held, the showing required to overcome the presumption favoring confidentiality turns, not
only on the nature and appropriateness of the function in the performance of which the material was
sought, but also the degree to which the material was necessary to its fulfillment.This petitioners failed
to do.

 Furthermore, from the time the final text of the JPEPA including its annexes and attachments was
published, petitioner-members of the House of Representatives have been free to use it for any
legislative purpose they may see fit. Since such publication, petitioners need, if any, specifically for the
Philippine and Japanese offers leading to the final version of the JPEPA, has become even less apparent.

 In asserting that the balance in this instance tilts in favor of disclosing the JPEPA documents, the dissent
contends that the Executive has failed to show how disclosing them afterthe conclusion of negotiations
would impair the performance of its functions. The contention, with due respect, misplaces
the onus probandi. While, in keeping with the general presumption of transparency, the burden is
initially on the Executive to provide precise and certain reasons for upholding its claim of privilege, once
the Executive is able to show that the documents being sought are covered by a recognized privilege,
the burden shifts to the party seeking information to overcome the privilege by a strong showing of
need.

 When it was thus established that the JPEPA documents are covered by the privilege for diplomatic
negotiations pursuant to PMPF v. Manglapus, the presumption arose that their disclosure would impair
the performance of executive functions. It was then incumbent on petitioner- requesting parties to show
that they have a strong need for the information sufficient to overcome the privilege.  They have not,
however.

 4. Respecting the failure of the Executive Secretary to explicitly state that he is claiming the privilege by
order of the President, the same may not be strictly applied to the privilege claim subject of this case.

 When the Court in Senate v. Ermita limited the power of invoking the privilege to the President alone, it
was laying down a new rule for which there is no counterpart even in theUnited States from which the
concept of executive privilege was adopted. As held in the 2004 case of Judicial Watch, Inc. v.
Department of Justice,[69] citing In re Sealed Case,[70] the issue of whether a President must personally
invoke the [presidential communications] privilege remains an open question. U.S. v. Reynolds,[71] on the
other hand, held that [t]here must be a formal claim of privilege, lodged by the head of the department
which has control over the matter, after actual personal consideration by that officer.

 
The rule was thus laid down by this Court, not in adherence to any established precedent, but with the
aim of preventing the abuse of the privilege in light of its highly exceptional nature.  The Courts
recognition that the Executive Secretary also bears the power to invoke the privilege, provided he does
so by order of the President, is meant to avoid laying down too rigid a rule, the Court being aware that it
was laying down a new restriction on executive privilege. It is with the same spirit that the Court should
not be overly strict with applying the same rule in this peculiar instance, where the claim of executive
privilege occurred before the judgment in Senate v. Ermita became final.

 5. To show that PMPF v. Manglapus may not be applied in the present case, the dissent implies that the
Court therein erred in citing US v. Curtiss Wright[72] and the book entitled The New American
Government and Its Work[73] since these authorities, so the dissent claims, may not be used to calibrate
the importance of the right to information in the Philippine setting.

 The dissent argues that since Curtiss-Wright referred to a conflict between the executive and legislative
branches of government, the factual setting thereof was different from that of PMPF
v. Manglapus which involved a collision between governmental power over the conduct of foreign
affairs and the citizens right to information.

 That the Court could freely cite Curtiss-Wright a case that upholds the secrecy of diplomatic
negotiations against congressional demands for information in the course of laying down a ruling on
the public right to information only serves to underscore the principle mentioned earlier that the
privileged character accorded to diplomatic negotiations does not ipso facto lose all force and effect
simply because the same privilege is now being claimed under different circumstances.

 PMPF v. Manglapus indeed involved a demand for information from private citizens and not an
executive-legislative conflict, but so did Chavez v. PEA[74] which held that the [publics] right to
information . . . does not extend to matters recognized as privileged information under the separation of
powers. What counts as privileged information in an executive-legislative conflict is thus also recognized
as such in cases involving the publics right to information.

 Chavez v. PCGG[75] also involved the publics right to information, yet the Court recognized as a valid
limitation to that right the same privileged information based on separation of powers closed-door
Cabinet meetings, executive sessions of either house of Congress, and the internal deliberations of the
Supreme Court.

 These cases show that the Court has always regarded claims of privilege, whether in the context of an
executive-legislative conflict or a citizens demand for information, as closely intertwined, such that the
principles applicable to one are also applicable to the other.

 The reason is obvious. If the validity of claims of privilege were to be assessed by entirely different
criteria in each context, this may give rise to the absurd result whereCongress would be denied access to
a particular information because of a claim of executive privilege, but the general public would have
access to the same information, the claim of privilege notwithstanding.
Absurdity would be the ultimate result if, for instance, the Court adopts the clear and present danger
test for the assessment of claims of privilege against citizens demands for information. If executive
information, when demanded by a citizen, is privileged only when there is a clear and present danger of
a substantive evil that the State has a right to prevent, it would be very difficult for the Executive to
establish the validity of its claim in each instance. In contrast, if the demand comes from Congress, the
Executive merely has to show that the information is covered by a recognized privilege in order to shift
the burden on Congress to present a strong showing of need. This would lead to a situation where it
would be more difficult for Congress to access executive information than it would be for private
citizens.

 We maintain then that when the Executive has already shown that an information is covered by
executive privilege, the party demanding the information must present a strong showing of
need, whether that party is Congress or a private citizen.

 The rule that the same showing of need test applies in both these contexts, however, should not be
construed as a denial of the importance of analyzing the context in which an executive privilege
controversy may happen to be placed. Rather, it affirms it, for it means that the specific need being
shown by the party seeking information in every particularinstance is highly significant in determining
whether to uphold a claim of privilege. This need is, precisely, part of the context in light of which
every claim of privilege should be assessed.

 Since, as demonstrated above, there are common principles that should be applied to executive
privilege controversies across different contexts, the Court in PMPF v. Manglapusdid not err when it
cited the Curtiss-Wright case.

 The claim that the book cited in PMPF v. Manglapus entitled The New American Government and Its
Work could not have taken into account the expanded statutory right to information in the FOIA
assumes that the observations in that book in support of the confidentiality of treaty negotiations would
be different had it been written after the FOIA.Such assumption is, with due respect, at best,
speculative.

 As to the claim in the dissent that [i]t is more doubtful if the same book be used to calibrate the
importance of the right of access to information in the Philippine setting considering its elevation as a
constitutional right, we submit that the elevation of such right as a constitutional right did not set it free
from the legitimate restrictions of executive privilege which is itself constitutionally-based.[76] Hence,
the comments in that book which were cited in PMPF v. Manglapus remain valid doctrine.

 6. The dissent further asserts that the Court has never used need as a test to uphold or allow inroads
into rights guaranteed under the Constitution. With due respect, we assert otherwise. The Court has
done so before, albeit without using the term need.

 
In executive privilege controversies, the requirement that parties present a sufficient showing of need
only means, in substance, that they should show a public interest in favor of disclosure sufficient in
degree to overcome the claim of privilege.[77] Verily, the Court in such cases engages in a balancing of
interests. Such a balancing of interests is certainly not new in constitutional adjudication involving
fundamental rights. Secretary of Justice v. Lantion,[78] which was cited in the dissent, applied just such a
test.

 Given that the dissent has clarified that it does not seek to apply the clear and present danger test to
the present controversy, but the balancing test, there seems to be no substantial dispute between the
position laid down in this ponencia and that reflected in the dissent as to what test to apply. It would
appear that the only disagreement is on the results of applying that test in this instance.

 The dissent, nonetheless, maintains that it suffices that information is of public concern for it to be
covered by the right, regardless of the publics need for the information, and that the same would hold
true even if they simply want to know it because it interests them.  As has been stated earlier, however,
there is no dispute that the information subject of this case is a matter of public concern.  The Court has
earlier concluded that it is a matter of public concern, not on the basis of any specific need shown by
petitioners, but from the very nature of the JPEPA as an international trade agreement.

 However, when the Executive has as in this case invoked the privilege, and it has been established that
the subject information is indeed covered by the privilege being claimed, can a party overcome the
same by merely asserting that the information being demanded is a matter of public concern, without
any further showing required? Certainly not, for that would render the doctrine of executive privilege of
no force and effect whatsoever as a limitation on the right to information, because then the sole test in
such controversies would be whether an information is a matter of public concern.

 Moreover, in view of the earlier discussions, we must bear in mind that, by disclosing the documents of
the JPEPA negotiations, the Philippine government runs the grave risk of betraying the trust reposed in it
by the Japanese representatives, indeed, by the Japanese government itself. How would the Philippine
government then explain itself when that happens? Surely, it cannot bear to say that it
just had to release the information because certain persons simply wanted to know it because it
interests them.

 Thus, the Court holds that, in determining whether an information is covered by the right to
information, a specific showing of need for such information is not a relevant consideration, but only
whether the same is a matter of public concern. When, however, the government has claimed executive
privilege, and it has established that the information is indeed covered by the same, then the party
demanding it, if it is to overcome the privilege, must show that that the information is vital, not simply
for the satisfaction of its curiosity, but for its ability to effectively and reasonably participate in social,
political, and economic decision-making.[79]

7. The dissent maintains that [t]he treaty has thus entered the ultimate stage where the people can
exercise their right to participate in the discussion whether the Senate should concur in its ratification
or not. (Emphasis supplied) It adds that this right will be diluted unless the people can have access to the
subject JPEPA documents. What, to the dissent, is a dilution of the right to participate in decision-
making is, to Us, simply a recognition of the qualified nature of the publics right to information.  It is
beyond dispute that the right to information is not absolute and that the doctrine of executive privilege
is a recognized limitation on that right.

 Moreover, contrary to the submission that the right to participate in decision-making would be diluted,
We reiterate that our people have been exercising their right to participate in the discussion on the
issue of the JPEPA, and they have been able to articulate their different opinions without need of access
to the JPEPA negotiation documents.

 Thus, we hold that the balance in this case tilts in favor of executive privilege.

 8. Against our ruling that the principles applied in U.S. v. Nixon, the Senate Select Committee case,
and In re Sealed Case, are similarly applicable to the present controversy, the dissent cites the caveat in
the Nixon case that the U.S. Court was there addressing only the Presidents assertion of privilege in the
context of a criminal trial, not a civil litigation nor a congressional demand for information. What this
caveat means, however, is only that courts must be careful not to hastily apply the ruling therein to
other contexts. It does not, however, absolutely mean that the principles applied in that case may never
be applied in such contexts.

 Hence, U.S. courts have cited U.S. v. Nixon in support of their rulings on claims of executive privilege in
contexts other than a criminal trial, as in the case of Nixon v. Administrator of General Services [80] which
involved former President Nixons invocation of executive privilege to challenge the constitutionality of
the Presidential Recordings and Materials Preservation Act [81] and the above-mentioned In re Sealed
Case which involved a claim of privilege against a subpoena duces tecum issued in a grand jury
investigation.

 Indeed, in applying to the present case the principles found in U.S. v. Nixon and in the other cases
already mentioned, We are merely affirming what the Chief Justice stated in his Dissenting Opinion
in Neri v. Senate Committee on Accountability[82] a case involving an executive-legislative conflict over
executive privilege. That dissenting opinion stated that, while Nixon was not concerned with the balance
between the Presidents generalized interest in confidentiality and congressional demands for
information, [n]onetheless the [U.S.] Court laid down principles and procedures that can serve as
torch lights to illumine us on the scope and use of Presidential communication privilege in the case at
bar.[83] While the Court was divided in Neri, this opinion of the Chief Justice was not among the points of
disagreement, and We similarly hold now that the Nixon case is a useful guide in the proper resolution
of the present controversy, notwithstanding the difference in context.

 Verily, while the Court should guard against the abuse of executive privilege, it should also give full
recognition to the validity of the privilege whenever it is claimed within the proper bounds of
executive power, as in this case. Otherwise, the Court would undermine its own credibility, for it would
be perceived as no longer aiming to strike a balance, but seeking merely to water down executive
privilege to the point of irrelevance.
 Conclusion

 To recapitulate, petitioners demand to be furnished with a copy of the full text of the JPEPA has
become moot and academic, it having been made accessible to the public sinceSeptember 11, 2006. As
for their demand for copies of the Philippine and Japanese offers submitted during the JPEPA
negotiations, the same must be denied, respondents claim of executive privilege being valid.

 Diplomatic negotiations have, since the Court promulgated its Resolution in PMPF
v. Manglapus on September 13, 1988, been recognized as privileged in this jurisdiction and the reasons
proffered by petitioners against the application of the ruling therein to the present case have not
persuaded the Court. Moreover, petitioners both private citizens and members of the House of
Representatives have failed to present a sufficient showing of need to overcome the claim of privilege in
this case.

 That the privilege was asserted for the first time in respondents Comment to the present petition, and
not during the hearings of the House Special Committee on Globalization, is of no moment, since it
cannot be interpreted as a waiver of the privilege on the part of the Executive branch.

 For reasons already explained, this Decision shall not be interpreted as departing from the ruling
in Senate v. Ermita that executive privilege should be invoked by the President or through the Executive
Secretary by order of the President.

 WHEREFORE, the petition is DISMISSED.

 SO ORDERED
PROVINCE OF NORTH COTABATO V. PEACE PANEL

DECISION

CARPIO MORALES, J.:

Subject of these consolidated cases is the extent of the powers of the President in pursuing the peace
process.While the facts surrounding this controversy center on the armed conflict in Mindanao between
the government and the Moro Islamic Liberation Front (MILF), the legal issue involved has a bearing on
all areas in the country where there has been a long-standing armed conflict. Yet again, the Court is
tasked to perform a delicate balancing act. It must uncompromisingly delineate the bounds within which
the President may lawfully exercise her discretion, but it must do so in strict adherence to the
Constitution, lest its ruling unduly restricts the freedom of action vested by that same Constitution in the
Chief Executive precisely to enable her to pursue the peace process effectively.

I. FACTUAL ANTECEDENTS OF THE PETITIONS

On August 5, 2008, the Government of the Republic of the Philippines (GRP) and the MILF, through the
Chairpersons of their respective peace negotiating panels, were scheduled to sign a Memorandum of
Agreement on the Ancestral Domain (MOA-AD) Aspect of the GRP-MILF Tripoli Agreement on Peace of
2001 in Kuala Lumpur, Malaysia.

The MILF is a rebel group which was established in March 1984 when, under the leadership of the late
Salamat Hashim, it splintered from the Moro National Liberation Front (MNLF) then headed by Nur
Misuari, on the ground, among others, of what Salamat perceived to be the manipulation of the MNLF
away from an Islamic basis towards Marxist-Maoist orientations. 1

The signing of the MOA-AD between the GRP and the MILF was not to materialize, however, for upon
motion of petitioners, specifically those who filed their cases before the scheduled signing of the MOA-
AD, this Court issued a Temporary Restraining Order enjoining the GRP from signing the same.

The MOA-AD was preceded by a long process of negotiation and the concluding of several prior
agreements between the two parties beginning in 1996, when the GRP-MILF peace negotiations began.
On July 18, 1997, the GRP and MILF Peace Panels signed the Agreement on General Cessation of
Hostilities. The following year, they signed the General Framework of Agreement of Intent on August 27,
1998.

The Solicitor General, who represents respondents, summarizes the MOA-AD by stating that the same
contained, among others, the commitment of the parties to pursue peace negotiations, protect and
respect human rights, negotiate with sincerity in the resolution and pacific settlement of the conflict,
and refrain from the use of threat or force to attain undue advantage while the peace negotiations on
the substantive agenda are on-going.2
Early on, however, it was evident that there was not going to be any smooth sailing in the GRP-MILF
peace process. Towards the end of 1999 up to early 2000, the MILF attacked a number of municipalities
in Central Mindanao and, in March 2000, it took control of the town hall of Kauswagan, Lanao del
Norte.3 In response, then President Joseph Estrada declared and carried out an "all-out-war" against the
MILF.

When President Gloria Macapagal-Arroyo assumed office, the military offensive against the MILF was
suspended and the government sought a resumption of the peace talks. The MILF, according to a
leading MILF member, initially responded with deep reservation, but when President Arroyo asked the
Government of Malaysia through Prime Minister Mahathir Mohammad to help convince the MILF to
return to the negotiating table, the MILF convened its Central Committee to seriously discuss the matter
and, eventually, decided to meet with the GRP. 4

The parties met in Kuala Lumpur on March 24, 2001, with the talks being facilitated by the Malaysian
government, the parties signing on the same date the Agreement on the General Framework for the
Resumption of Peace Talks Between the GRP and the MILF. The MILF thereafter suspended all its
military actions.5

Formal peace talks between the parties were held in Tripoli, Libya from June 20-22, 2001, the outcome
of which was the GRP-MILF Tripoli Agreement on Peace (Tripoli Agreement 2001) containing the basic
principles and agenda on the following aspects of the
negotiation: Security Aspect, Rehabilitation Aspect, and Ancestral Domain Aspect. With regard to the
Ancestral Domain Aspect, the parties in Tripoli Agreement 2001 simply agreed "that the same be
discussed further by the Parties in their next meeting."

A second round of peace talks was held in Cyberjaya, Malaysia on August 5-7, 2001 which ended with
the signing of the Implementing Guidelines on the Security Aspect of the Tripoli Agreement 2001 leading
to a ceasefire status between the parties. This was followed by the Implementing Guidelines on the
Humanitarian Rehabilitation and Development Aspects of the Tripoli Agreement 2001, which was signed
on May 7, 2002 at Putrajaya, Malaysia. Nonetheless, there were many incidence of violence between
government forces and the MILF from 2002 to 2003.

Meanwhile, then MILF Chairman Salamat Hashim passed away on July 13, 2003 and he was replaced by
Al Haj Murad, who was then the chief peace negotiator of the MILF. Murad's position as chief peace
negotiator was taken over by Mohagher Iqbal. 6

In 2005, several exploratory talks were held between the parties in Kuala Lumpur, eventually leading to
the crafting of the draft MOA-AD in its final form, which, as mentioned, was set to be signed last August
5, 2008.

II. STATEMENT OF THE PROCEEDINGS

Before the Court is what is perhaps the most contentious "consensus" ever embodied in an instrument -
the MOA-AD which is assailed principally by the present petitions bearing docket numbers 183591,
183752, 183893, 183951 and 183962.

Commonly impleaded as respondents are the GRP Peace Panel on Ancestral Domain 7 and the
Presidential Adviser on the Peace Process (PAPP) Hermogenes Esperon, Jr.

On July 23, 2008, the Province of North Cotabato 8 and Vice-Governor Emmanuel Piñol filed a petition,
docketed as G.R. No. 183591, for Mandamus and Prohibition with Prayer for the Issuance of Writ of
Preliminary Injunction and Temporary Restraining Order. 9 Invoking the right to information on matters
of public concern, petitioners seek to compel respondents to disclose and furnish them the complete
and official copies of the MOA-AD including its attachments, and to prohibit the slated signing of the
MOA-AD, pending the disclosure of the contents of the MOA-AD and the holding of a public consultation
thereon. Supplementarily, petitioners pray that the MOA-AD be declared unconstitutional. 10

This initial petition was followed by another one, docketed as G.R. No. 183752, also for Mandamus and
Prohibition11 filed by the City of Zamboanga,12 Mayor Celso Lobregat, Rep. Ma. Isabelle Climaco and Rep.
Erico Basilio Fabian who likewise pray for similar injunctive reliefs. Petitioners herein moreover pray that
the City of Zamboanga be excluded from the Bangsamoro Homeland and/or Bangsamoro Juridical Entity
and, in the alternative, that the MOA-AD be declared null and void.

By Resolution of August 4, 2008, the Court issued a Temporary Restraining Order commanding and

directing public respondents and their agents to cease and desist from formally signing the MOA-
AD.13 The Court also required the Solicitor General to submit to the Court and petitioners the official
copy of the final draft of the MOA-AD,14 to which she complied.15

Meanwhile, the City of Iligan 16 filed a petition for Injunction and/or Declaratory Relief, docketed as G.R.
No. 183893, praying that respondents be enjoined from signing the MOA-AD or, if the same had already
been signed, from implementing the same, and that the MOA-AD be declared unconstitutional.
Petitioners herein additionally implead Executive Secretary Eduardo Ermita as respondent.

The Province of Zamboanga del Norte, 17 Governor Rolando Yebes, Vice-Governor Francis Olvis, Rep.
Cecilia Jalosjos-Carreon, Rep. Cesar Jalosjos, and the members 18 of the Sangguniang Panlalawigan of
Zamboanga del Norte filed on August 15, 2008 a petition for Certiorari, Mandamus and
Prohibition,19 docketed as G.R. No. 183951. They pray, inter alia, that the MOA-AD be declared null and
void and without operative effect, and that respondents be enjoined from executing the MOA-AD.

On August 19, 2008, Ernesto Maceda, Jejomar Binay, and Aquilino Pimentel III filed a petition for
Prohibition,20docketed as G.R. No. 183962, praying for a judgment prohibiting and permanently
enjoining respondents from formally signing and executing the MOA-AD and or any other agreement
derived therefrom or similar thereto, and nullifying the MOA-AD for being unconstitutional and illegal.
Petitioners herein additionally implead as respondent the MILF Peace Negotiating Panel represented by
its Chairman Mohagher Iqbal.
Various parties moved to intervene and were granted leave of court to file their petitions-/comments-in-
intervention. Petitioners-in-Intervention include Senator Manuel A. Roxas, former Senate President
Franklin Drilon and Atty. Adel Tamano, the City of Isabela 21 and Mayor Cherrylyn Santos-Akbar, the
Province of Sultan Kudarat22 and Gov. Suharto Mangudadatu, the Municipality of Linamon in Lanao del
Norte,23 Ruy Elias Lopez of Davao City and of the Bagobo tribe, Sangguniang Panlungsod member
Marino Ridao and businessman Kisin Buxani, both of Cotabato City; and lawyers Carlo Gomez, Gerardo
Dilig, Nesario Awat, Joselito Alisuag, Richalex Jagmis, all of Palawan City. The Muslim Legal Assistance
Foundation, Inc. (Muslaf) and the Muslim Multi-Sectoral Movement for Peace and Development
(MMMPD) filed their respective Comments-in-Intervention.

By subsequent Resolutions, the Court ordered the consolidation of the petitions. Respondents filed
Comments on the petitions, while some of petitioners submitted their respective Replies.

Respondents, by Manifestation and Motion of August 19, 2008, stated that the Executive Department
shall thoroughly review the MOA-AD and pursue further negotiations to address the issues hurled
against it, and thus moved to dismiss the cases. In the succeeding exchange of pleadings, respondents'
motion was met with vigorous opposition from petitioners.

The cases were heard on oral argument on August 15, 22 and 29, 2008 that tackled the following
principal issues:

1. Whether the petitions have become moot and academic

(i) insofar as the mandamus aspect is concerned, in view of the disclosure of official copies of the final
draft of the Memorandum of Agreement (MOA); and

(ii) insofar as the prohibition aspect involving the Local Government Units is concerned, if it is considered
that consultation has become fait accompli with the finalization of the draft;

2. Whether the constitutionality and the legality of the MOA is ripe for adjudication;

3. Whether respondent Government of the Republic of the Philippines Peace Panel committed grave
abuse of discretion amounting to lack or excess of jurisdiction when it negotiated and initiated the MOA
vis-à-vis ISSUES Nos. 4 and 5;

4. Whether there is a violation of the people's right to information on matters of public concern (1987
Constitution, Article III, Sec. 7) under a state policy of full disclosure of all its transactions involving public
interest (1987 Constitution, Article II, Sec. 28) including public consultation under Republic Act No. 7160
(LOCAL GOVERNMENT CODE OF 1991)[;]

If it is in the affirmative, whether prohibition under Rule 65 of the 1997 Rules of Civil Procedure is an

appropriate remedy;

5. Whether by signing the MOA, the Government of the Republic of the Philippines would be BINDING
itself
a) to create and recognize the Bangsamoro Juridical Entity (BJE) as a separate state, or a juridical,
territorial or political subdivision not recognized by law;

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

c) to concede to or recognize the claim of the Moro Islamic Liberation Front for ancestral domain in
violation of Republic Act No. 8371 (THE INDIGENOUS PEOPLES RIGHTS ACT OF 1997), particularly Section
3(g) & Chapter VII (DELINEATION, RECOGNITION OF ANCESTRAL DOMAINS)[;]

If in the affirmative, whether the Executive Branch has the authority to so bind the Government of the
Republic of the Philippines;

6. Whether the inclusion/exclusion of the Province of North Cotabato, Cities of Zamboanga, Iligan and
Isabela, and the Municipality of Linamon, Lanao del Norte in/from the areas covered by the projected
Bangsamoro Homeland is a justiciable question; and

7. Whether desistance from signing the MOA derogates any prior valid commitments of the Government
of the Republic of the Philippines. 24

The Court, thereafter, ordered the parties to submit their respective Memoranda. Most of the parties
submitted their memoranda on time.

III. OVERVIEW OF THE MOA-AD

As a necessary backdrop to the consideration of the objections raised in the subject five petitions and six
petitions-in-intervention against the MOA-AD, as well as the two comments-in-intervention in favor of
the MOA-AD, the Court takes an overview of the MOA.

The MOA-AD identifies the Parties to it as the GRP and the MILF.

Under the heading "Terms of Reference" (TOR), the MOA-AD includes not only four earlier agreements
between the GRP and MILF, but also two agreements between the GRP and the MNLF: the 1976 Tripoli
Agreement, and the Final Peace Agreement on the Implementation of the 1976 Tripoli Agreement,
signed on September 2, 1996 during the administration of President Fidel Ramos.

The MOA-AD also identifies as TOR two local statutes - the organic act for the Autonomous Region in
Muslim Mindanao (ARMM)25 and the Indigenous Peoples Rights Act (IPRA), 26 and several international
law instruments - the ILO Convention No. 169 Concerning Indigenous and Tribal Peoples in Independent
Countries in relation to the UN Declaration on the Rights of the Indigenous Peoples, and the UN Charter,
among others.

The MOA-AD includes as a final TOR the generic category of "compact rights entrenchment emanating
from the regime of dar-ul-mua'hada (or territory under compact) and dar-ul-sulh (or
territory under peace agreement) that partakes the nature of a treaty device."
During the height of the Muslim Empire, early Muslim jurists tended to see the world through a simple
dichotomy: there was the dar-ul-Islam (the Abode of Islam) and dar-ul-harb (the Abode of War). The
first referred to those lands where Islamic laws held sway, while the second denoted those lands where
Muslims were persecuted or where Muslim laws were outlawed or ineffective. 27 This way of viewing the
world, however, became more complex through the centuries as the Islamic world became part of the
international community of nations.

As Muslim States entered into treaties with their neighbors, even with distant States and inter-
governmental organizations, the classical division of the world into dar-ul-Islam and dar-ul-
harb eventually lost its meaning. New terms were drawn up to describe novel ways of perceiving non-
Muslim territories. For instance, areas like dar-ul-mua'hada (land of compact) and dar-ul-sulh (land
of treaty) referred to countries which, though under a secular regime, maintained peaceful and
cooperative relations with Muslim States, having been bound to each other by treaty or agreement. Dar-
ul-aman (land of order), on the other hand, referred to countries which, though not bound by treaty
with Muslim States, maintained freedom of religion for Muslims. 28

It thus appears that the "compact rights entrenchment" emanating from the regime of dar-ul-
mua'hada and dar-ul-sulh simply refers to all other agreements between the MILF and the Philippine
government - the Philippines being the land of compact and peace agreement - that partake of the
nature of a treaty device, "treaty" being broadly defined as "any solemn agreement in writing that sets
out understandings, obligations, and benefits for both parties which provides for a framework that
elaborates the principles declared in the [MOA-AD]."29

The MOA-AD states that the Parties "HAVE AGREED AND ACKNOWLEDGED AS FOLLOWS," and starts
with its main body.

The main body of the MOA-AD is divided into four strands, namely, Concepts and Principles, Territory,
Resources, and Governance.

A. CONCEPTS AND PRINCIPLES

This strand begins with the statement that it is "the birthright of all Moros and all Indigenous peoples of
Mindanao to identify themselves and be accepted as ‘Bangsamoros.'" It defines "Bangsamoro people"
as the natives or original inhabitants of Mindanao and its adjacent islands including Palawan and the
Sulu archipelago at the time of conquest or colonization, and their descendants whether mixed or of full
blood, including their spouses.30

Thus, the concept of "Bangsamoro," as defined in this strand of the MOA-AD, includes not only " Moros"
as traditionally understood even by Muslims, 31 but all indigenous peoples of Mindanao and its adjacent
islands. The MOA-AD adds that the freedom of choice of indigenous peoples shall be respected. What
this freedom of choice consists in has not been specifically defined.
The MOA-AD proceeds to refer to the "Bangsamoro homeland," the ownership of which is vested
exclusively in the Bangsamoro people by virtue of their prior rights of occupation.32 Both parties to the
MOA-AD acknowledge that ancestral domain does not form part of the public domain.33

The Bangsamoro people are acknowledged as having the right to self-governance, which right is said to
be rooted on ancestral territoriality exercised originally under the suzerain authority of their sultanates
and the Pat a Pangampong ku Ranaw. The sultanates were described as states or "karajaan/kadatuan"
resembling a body politic endowed with all the elements of a nation-state in the modern sense. 34

The MOA-AD thus grounds the right to self-governance of the Bangsamoro people on the past suzerain
authority of the sultanates. As gathered, the territory defined as the Bangsamoro homeland was ruled
by several sultanates and, specifically in the case of the Maranao, by the Pat a Pangampong ku Ranaw, a
confederation of independent principalities (pangampong) each ruled by datus and sultans, none of
whom was supreme over the others.35

The MOA-AD goes on to describe the Bangsamoro people as "the ‘First Nation' with defined territory
and with a system of government having entered into treaties of amity and commerce with foreign
nations."

The term "First Nation" is of Canadian origin referring to the indigenous peoples of that territory,
particularly those known as Indians. In Canada, each of these indigenous peoples is equally entitled to
be called "First Nation," hence, all of them are usually described collectively by the plural "First
Nations."36 To that extent, the MOA-AD, by identifying the Bangsamoro people as "the First Nation" -
suggesting its exclusive entitlement to that designation - departs from the Canadian usage of the term.

The MOA-AD then mentions for the first time the "Bangsamoro Juridical Entity" (BJE) to which it
grants the authority and jurisdiction over the Ancestral Domain and Ancestral Lands of the
Bangsamoro.37

B. TERRITORY

The territory of the Bangsamoro homeland is described as the land mass as well as the maritime,
terrestrial, fluvial and alluvial domains, including the aerial domain and the atmospheric space above it,
embracing the Mindanao-Sulu-Palawan geographic region. 38

More specifically, the core of the BJE is defined as the present geographic area of the ARMM - thus
constituting the following areas: Lanao del Sur, Maguindanao, Sulu, Tawi-Tawi, Basilan, and Marawi City.
Significantly, this core also includes certain municipalities of Lanao del Norte that voted for inclusion in
the ARMM in the 2001 plebiscite.39

Outside of this core, the BJE is to cover other provinces, cities, municipalities and barangays, which are
grouped into two categories, Category A and Category B. Each of these areas is to be subjected to a
plebiscite to be held on different dates, years apart from each other. Thus, Category A areas are to be
subjected to a plebiscite not later than twelve (12) months following the signing of the MOA-
AD.40 Category B areas, also called "Special Intervention Areas," on the other hand, are to be subjected
to a plebiscite twenty-five (25) years from the signing of a separate agreement - the Comprehensive
Compact.41

The Parties to the MOA-AD stipulate that the BJE shall have jurisdiction over all natural resources within
its "internalwaters," defined as extending fifteen (15) kilometers from the coastline of the BJE
area;42 that the BJE shall also have "territorial waters," which shall stretch beyond the BJE internal
waters up to the baselines of the Republic of the Philippines (RP) south east and south west of mainland
Mindanao; and that within these territorial waters, the BJE and the "Central Government"  (used
interchangeably with RP) shall exercise joint jurisdiction, authority and management over all natural
resources.43 Notably, the jurisdiction over the internal waters is not similarly described as "joint."

The MOA-AD further provides for the sharing of minerals on the territorial waters between the Central
Government and the BJE, in favor of the latter, through production sharing and economic cooperation
agreement.44 The activities which the Parties are allowed to conduct on the territorial waters are
enumerated, among which are the exploration and utilization of natural resources, regulation of
shipping and fishing activities, and the enforcement of police and safety measures. 45 There is no similar
provision on the sharing of minerals and allowed activities with respect to the internal waters of the BJE.

C. RESOURCES

The MOA-AD states that the BJE is free to enter into any economic cooperation and trade relations with
foreign countries and shall have the option to establish trade missions in those countries. Such
relationships and understandings, however, are not to include aggression against the GRP. The BJE may
also enter into environmental cooperation agreements. 46

The external defense of the BJE is to remain the duty and obligation of the Central Government. The
Central Government is also bound to "take necessary steps to ensure the BJE's participation in
international meetings and events" like those of the ASEAN and the specialized agencies of the UN. The
BJE is to be entitled to participate in Philippine official missions and delegations for the negotiation of
border agreements or protocols for environmental protection and equitable sharing of incomes and
revenues involving the bodies of water adjacent to or between the islands forming part of the ancestral
domain.47

With regard to the right of exploring for, producing, and obtaining all potential sources of energy,
petroleum, fossil fuel, mineral oil and natural gas, the jurisdiction and control thereon is to be vested in
the BJE "as the party having control within its territorial jurisdiction." This right carries the proviso that,
"in times of national emergency, when public interest so requires," the Central Government may, for a
fixed period and under reasonable terms as may be agreed upon by both Parties, assume or direct the
operation of such resources.48

The sharing between the Central Government and the BJE of total production pertaining to natural
resources is to be 75:25 in favor of the BJE.49
The MOA-AD provides that legitimate grievances of the Bangsamoro people arising from any unjust
dispossession of their territorial and proprietary rights, customary land tenures, or their marginalization
shall be acknowledged. Whenever restoration is no longer possible, reparation is to be in such form as
mutually determined by the Parties.50

The BJE may modify or cancel the forest concessions, timber licenses, contracts or agreements, mining
concessions, Mineral Production and Sharing Agreements (MPSA), Industrial Forest Management
Agreements (IFMA), and other land tenure instruments granted by the Philippine Government, including
those issued by the present ARMM.51

D. GOVERNANCE

The MOA-AD binds the Parties to invite a multinational third-party to observe and monitor the
implementation of theComprehensive Compact. This compact is to embody the "details for the effective
enforcement" and "the mechanisms and modalities for the actual implementation" of the MOA-AD. The
MOA-AD explicitly provides that the participation of the third party shall not in any way affect the status
of the relationship between the Central Government and the BJE. 52

The "associative" relationship 

between the Central Government 
and the BJE

The MOA-AD describes the relationship of the Central Government and the BJE as "associative,"
characterized by shared authority and responsibility. And it states that the structure of governance is to
be based on executive, legislative, judicial, and administrative institutions with defined powers and
functions in the Comprehensive Compact.

The MOA-AD provides that its provisions requiring "amendments to the existing legal framework" shall
take effect upon signing of the Comprehensive Compact and upon effecting the aforesaid amendments ,
with due regard to the non-derogation of prior agreements and within the stipulated timeframe to be
contained in the Comprehensive Compact. As will be discussed later, much of the present controversy
hangs on the legality of this provision.

The BJE is granted the power to build, develop and maintain its own institutions inclusive of civil service,
electoral, financial and banking, education, legislation, legal, economic, police and internal security
force, judicial system and correctional institutions, the details of which shall be discussed in the
negotiation of the comprehensive compact.

As stated early on, the MOA-AD was set to be signed on August 5, 2008 by Rodolfo Garcia and
Mohagher Iqbal, Chairpersons of the Peace Negotiating Panels of the GRP and the MILF,
respectively. Notably, the penultimate paragraph of the MOA-AD identifies the signatories as "the
representatives of the Parties," meaning the GRP and MILF themselves, and not merely of the
negotiating panels.53 In addition, the signature page of the MOA-AD states that it is "WITNESSED BY"
Datuk Othman Bin Abd Razak, Special Adviser to the Prime Minister of Malaysia, "ENDORSED BY"
Ambassador Sayed Elmasry, Adviser to Organization of the Islamic Conference (OIC) Secretary General
and Special Envoy for Peace Process in Southern Philippines, and SIGNED "IN THE PRESENCE OF" Dr.
Albert G. Romulo, Secretary of Foreign Affairs of RP and Dato' Seri Utama Dr. Rais Bin Yatim, Minister of
Foreign Affairs, Malaysia, all of whom were scheduled to sign the Agreement last August 5, 2008.

Annexed to the MOA-AD are two documents containing the respective lists cum maps of the provinces,
municipalities, and barangays under Categories A and B earlier mentioned in the discussion on the
strand on TERRITORY.

IV. PROCEDURAL ISSUES

A. RIPENESS

The power of judicial review is limited to actual cases or controversies. 54 Courts decline to issue advisory
opinions or to resolve hypothetical or feigned problems, or mere academic questions. 55 The limitation of
the power of judicial review to actual cases and controversies defines the role assigned to the judiciary
in a tripartite allocation of power, to assure that the courts will not intrude into areas committed to the
other branches of government.56

An actual case or controversy involves a conflict of legal rights, an assertion of opposite legal claims,
susceptible of judicial resolution as distinguished from a hypothetical or abstract difference or dispute.
There must be a contrariety of legal rights that can be interpreted and enforced on the basis of existing
law and jurisprudence.57The Court can decide the constitutionality of an act or treaty only when a proper
case between opposing parties is submitted for judicial determination. 58

Related to the requirement of an actual case or controversy is the requirement of ripeness. A question is
ripe for adjudication when the act being challenged has had a direct adverse effect on the individual
challenging it.59 For a case to be considered ripe for adjudication, it is a prerequisite that something had
then been accomplished or performed by either branch before a court may come into the picture, 60 and
the petitioner must allege the existence of an immediate or threatened injury to itself as a result of the
challenged action.61 He must show that he has sustained or is immediately in danger of sustaining some
direct injury as a result of the act complained of. 62

The Solicitor General argues that there is no justiciable controversy that is ripe for judicial review in the
present petitions, reasoning that

The unsigned MOA-AD is simply a list of consensus points subject to further negotiations and legislative
enactments as well as constitutional processes aimed at attaining a final peaceful agreement. Simply
put, the MOA-AD remains to be a proposal that does not automatically create legally demandable rights
and obligations until the list of operative acts required have been duly complied with. x x x

xxxx

In the cases at bar, it is respectfully submitted that this Honorable Court has no authority to pass upon
issues based on hypothetical or feigned constitutional problems or interests with no concrete bases.
Considering the preliminary character of the MOA-AD, there are no concrete acts that could possibly
violate petitioners' and intervenors' rights since the acts complained of are mere contemplated
steps toward the formulation of a final peace agreement. Plainly, petitioners and intervenors' perceived
injury, if at all, is merely imaginary and illusory apart from being unfounded and based on mere
conjectures. (Underscoring supplied)

The Solicitor General cites63 the following provisions of the MOA-AD:

TERRITORY

xxxx

2. Toward this end, the Parties enter into the following stipulations:

xxxx

d. Without derogating from the requirements of prior agreements, the Government stipulates to
conduct and deliver, using all possible legal measures, within twelve (12) months following the signing of
the MOA-AD, a plebiscite covering the areas as enumerated in the list and depicted in the map as
Category A attached herein (the "Annex"). The Annex constitutes an integral part of this framework
agreement. Toward this end, the Parties shall endeavor to complete the negotiations and resolve all
outstanding issues on the Comprehensive Compact within fifteen (15) months from the signing of the
MOA-AD.

xxxx

GOVERNANCE

xxxx

7. The Parties agree that mechanisms and modalities for the actual implementation of this MOA-AD shall
be spelt out in the Comprehensive Compact to mutually take such steps to enable it to occur effectively.

Any provisions of the MOA-AD requiring amendments to the existing legal framework shall come into
forceupon the signing of a Comprehensive Compact and upon effecting the necessary changes to the
legal framework with due regard to non-derogation of prior agreements and within the stipulated
timeframe to be contained in the Comprehensive Compact. 64 (Underscoring supplied)

The Solicitor General's arguments fail to persuade.

Concrete acts under the MOA-AD are not necessary to render the present controversy ripe. In Pimentel,
Jr. v. Aguirre,65 this Court held:

x x x [B]y the mere enactment of the questioned law or the approval of the challenged action, the
dispute is said to have ripened into a judicial controversy even without any other overt act. Indeed, even
a singular violation of the Constitution and/or the law is enough to awaken judicial duty.
xxxx

By the same token, when an act of the President, who in our constitutional scheme is a coequal of
Congress, is seriously alleged to have infringed the Constitution and the laws x x x settling the dispute
becomes the duty and the responsibility of the courts. 66

In Santa Fe Independent School District v. Doe,67 the United States Supreme Court held that the
challenge to the constitutionality of the school's policy allowing student-led prayers and speeches
before games was ripe for adjudication, even if no public prayer had yet been led under the policy,
because the policy was being challenged as unconstitutional on its face. 68

That the law or act in question is not yet effective does not negate ripeness. For example, in New York v.
United States,69 decided in 1992, the United States Supreme Court held that the action by the State of
New York challenging the provisions of the Low-Level Radioactive Waste Policy Act was ripe for
adjudication even if the questioned provision was not to take effect until January 1, 1996, because the
parties agreed that New York had to take immediate action to avoid the provision's consequences. 70

The present petitions pray for Certiorari, 71 Prohibition, and Mandamus. Certiorari and Prohibition are
remedies granted by law when any tribunal, board or officer has acted, in the case of certiorari, or is
proceeding, in the case of prohibition, without or in excess of its jurisdiction or with grave abuse of
discretion amounting to lack or excess of jurisdiction. 72 Mandamus is a remedy granted by law when any
tribunal, corporation, board, officer or person unlawfully neglects the performance of an act which the
law specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes
another from the use or enjoyment of a right or office to which such other is entitled. 73 Certiorari,
Mandamus and Prohibition are appropriate remedies to raise constitutional issues and to review and/or
prohibit/nullify, when proper, acts of legislative and executive officials. 74

The authority of the GRP Negotiating Panel is defined by Executive Order No. 3 (E.O. No. 3), issued on
February 28, 2001.75 The said executive order requires that "[t]he government's policy framework for
peace, including the systematic approach and the administrative structure for carrying out the
comprehensive peace process x x x be governed by this Executive Order." 76

The present petitions allege that respondents GRP Panel and PAPP Esperon drafted the terms of the
MOA-AD without consulting the local government units or communities affected, nor informing them of
the proceedings. As will be discussed in greater detail later, such omission, by itself, constitutes  a
departure by respondents from their mandate under E.O. No. 3.

Furthermore, the petitions allege that the provisions of the MOA-AD violate the Constitution. The MOA-
AD provides that "any provisions of the MOA-AD requiring amendments to the existing legal framework
shall come into force upon the signing of a Comprehensive Compact and upon effecting the necessary
changes to the legal framework," implying an amendment of the Constitution to accommodate the
MOA-AD. This stipulation, in effect,guaranteed to the MILF the amendment of the Constitution.  Such act
constitutes another violation of its authority. Again, these points will be discussed in more detail later.
As the petitions allege acts or omissions on the part of respondent that exceed their authority, by
violating their duties under E.O. No. 3 and the provisions of the Constitution and statutes, the petitions
make a prima facie case for Certiorari, Prohibition, and Mandamus, and an actual case or
controversy ripe for adjudication exists. When an act of a branch of government is seriously alleged to
have infringed the Constitution, it becomes not only the right but in fact the duty of the judiciary to
settle the dispute.77

B. LOCUS STANDI

For a party to have locus standi, one must allege "such a personal stake in the outcome of the
controversy as to assure that concrete adverseness which sharpens the presentation of issues upon
which the court so largely depends for illumination of difficult constitutional questions." 78

Because constitutional cases are often public actions in which the relief sought is likely to affect other
persons, a preliminary question frequently arises as to this interest in the constitutional question
raised.79

When suing as a citizen, the person complaining must allege that he has been or is about to be denied
some right or privilege to which he is lawfully entitled or that he is about to be subjected to some
burdens or penalties by reason of the statute or act complained of. 80 When the issue concerns a public
right, it is sufficient that the petitioner is a citizen and has an interest in the execution of the laws. 81

For a taxpayer, one is allowed to sue where there is an assertion that public funds are illegally disbursed
or deflected to an illegal purpose, or that there is a wastage of public funds through the enforcement of
an invalid or unconstitutional law. 82 The Court retains discretion whether or not to allow a taxpayer's
suit.83

In the case of a legislator or member of Congress, an act of the Executive that injures the institution of
Congress causes a derivative but nonetheless substantial injury that can be questioned by legislators. A
member of the House of Representatives has standing to maintain inviolate the prerogatives, powers
and privileges vested by the Constitution in his office. 84

An organization may be granted standing to assert the rights of its members, 85 but the mere invocation
by theIntegrated Bar of the Philippines or any member of the legal profession of the duty to preserve the
rule of law does not suffice to clothe it with standing. 86

As regards a local government unit (LGU), it can seek relief in order to protect or vindicate an interest of
its own, and of the other LGUs.87

Intervenors, meanwhile, may be given legal standing upon showing of facts that satisfy the
requirements of the law authorizing intervention, 88 such as a legal interest in the matter in litigation, or
in the success of either of the parties.

In any case, the Court has discretion to relax the procedural technicality on  locus standi, given the liberal
attitude it has exercised, highlighted in the case of David v. Macapagal-Arroyo,89 where technicalities of
procedure were brushed aside, the constitutional issues raised being of paramount public interest or of
transcendental importance deserving the attention of the Court in view of their seriousness, novelty and
weight as precedents.90 The Court's forbearing stance on locus standi on issues involving constitutional
issues has for its purpose the protection of fundamental rights.

In not a few cases, the Court, in keeping with its duty under the Constitution to determine whether the
other branches of government have kept themselves within the limits of the Constitution and the laws
and have not abused the discretion given them, has brushed aside technical rules of procedure. 91

In the petitions at bar, petitioners Province of North Cotabato (G.R. No. 183591) Province of

Zamboanga del Norte (G.R. No. 183951), City of Iligan (G.R. No. 183893) and City of Zamboanga (G.R.
No. 183752) and petitioners-in-intervention Province of Sultan Kudarat, City of
Isabela and Municipality of Linamon have locus standi in view of the direct and substantial injury that
they, as LGUs, would suffer as their territories, whether in whole or in part, are to be included in the
intended domain of the BJE. These petitioners allege that they did not vote for their inclusion in the
ARMM which would be expanded to form the BJE territory. Petitioners' legal standing is thus beyond
doubt.

In G.R. No. 183962, petitioners Ernesto Maceda, Jejomar Binay and Aquilino Pimentel III would have no

standing as citizens and taxpayers for their failure to specify that they would be denied some right or
privilege or there would be wastage of public funds. The fact that they are a former Senator, an
incumbent mayor of Makati City, and a resident of Cagayan de Oro, respectively, is of no consequence.
Considering their invocation of the transcendental importance of the issues at hand, however, the Court
grants them standing.

Intervenors Franklin Drilon and Adel Tamano, in alleging their standing as taxpayers, assert that

government funds would be expended for the conduct of an illegal and unconstitutional plebiscite to
delineate the BJE territory. On that score alone, they can be given legal standing. Their allegation that
the issues involved in these petitions are of "undeniable transcendental importance" clothes them with
added basis for their personality to intervene in these petitions.

With regard to Senator Manuel Roxas, his standing is premised on his being a member of the Senate
and a citizen to enforce compliance by respondents of the public's constitutional right to be informed of
the MOA-AD, as well as on a genuine legal interest in the matter in litigation, or in the success or failure
of either of the parties. He thus possesses the requisite standing as an intervenor.

With respect to Intervenors Ruy Elias Lopez, as a former congressman of the 3 rd district of Davao City, a
taxpayer and a member of the Bagobo tribe; Carlo B. Gomez, et al., as members of the IBP Palawan
chapter, citizens and taxpayers; Marino Ridao, as taxpayer, resident and member of the Sangguniang
Panlungsod of Cotabato City; and Kisin Buxani, as taxpayer, they failed to allege any proper legal
interest in the present petitions. Just the same, the Court exercises its discretion to relax the procedural
technicality on locus standi given the paramount public interest in the issues at hand.
Intervening respondents Muslim Multi-Sectoral Movement for Peace and Development, an advocacy
group for justice and the attainment of peace and prosperity in Muslim Mindanao; and Muslim Legal
Assistance Foundation Inc., a non-government organization of Muslim lawyers, allege that they stand to
be benefited or prejudiced, as the case may be, in the resolution of the petitions concerning the MOA-
AD, and prays for the denial of the petitions on the grounds therein stated. Such legal interest suffices to
clothe them with standing.

B. MOOTNESS

Respondents insist that the present petitions have been rendered moot with the satisfaction of all the
reliefs prayed for by petitioners and the subsequent pronouncement of the Executive Secretary that
"[n]o matter what the Supreme Court ultimately decides[,] the government will not sign the MOA." 92

In lending credence to this policy decision, the Solicitor General points out that the President had
already disbanded the GRP Peace Panel. 93

In David v. Macapagal-Arroyo,94 this Court held that the "moot and academic" principle not being a
magical formula that automatically dissuades courts in resolving a case, it will decide cases, otherwise
moot and academic, if it finds that (a) there is a grave violation of the Constitution; 95 (b) the situation is
of exceptional character and paramount public interest is involved; 96 (c) the constitutional issue raised
requires formulation of controlling principles to guide the bench, the bar, and the public; 97 and (d) the
case is capable of repetition yet evading review. 98

Another exclusionary circumstance that may be considered is where there is a voluntary cessation of the
activity complained of by the defendant or doer. Thus, once a suit is filed and the doer voluntarily ceases
the challenged conduct, it does not automatically deprive the tribunal of power to hear and determine
the case and does not render the case moot especially when the plaintiff seeks damages or prays for
injunctive relief against the possible recurrence of the violation. 99

The present petitions fall squarely into these exceptions to thus thrust them into the domain of judicial
review. The grounds cited above in David are just as applicable in the present cases as they were, not
only in David, but also in Province of Batangas v. Romulo100 and Manalo v. Calderon101 where the Court
similarly decided them on the merits, supervening events that would ordinarily have rendered the same
moot notwithstanding.

Petitions not mooted

Contrary then to the asseverations of respondents, the non-signing of the MOA-AD and the eventual
dissolution of the GRP Peace Panel did not moot the present petitions. It bears emphasis that the
signing of the MOA-AD did not push through due to the Court's issuance of a Temporary Restraining
Order.

Contrary too to respondents' position, the MOA-AD cannot be considered a mere "list of consensus
points," especially given its nomenclature, the need to have it signed or initialed by all the parties
concerned on August 5, 2008, and the far-reaching Constitutional implications of these "consensus
points," foremost of which is the creation of the BJE.

In fact, as what will, in the main, be discussed, there is a commitment on the part of respondents to
amend and effect necessary changes to the existing legal framework for certain provisions of the
MOA-AD to take effect. Consequently, the present petitions are not confined to the terms and
provisions of the MOA-AD, but to other  on-going and future negotiations and agreements necessary for
its realization. The petitions have not, therefore, been rendered moot and academic simply by the public
disclosure of the MOA-AD,102 the manifestation that it will not be signed as well as the disbanding of the
GRP Panel not withstanding.

Petitions are imbued with paramount public interest

There is no gainsaying that the petitions are imbued with paramount public interest, involving a
significant part of the country's territory and the wide-ranging political modifications of affected LGUs.
The assertion that the MOA-AD is subject to further legal enactments including possible Constitutional
amendments more than ever provides impetus for the Court to formulate controlling principles to
guide the bench, the bar, the public and, in this case, the government and its negotiating entity.

Respondents cite Suplico v. NEDA, et al.103 where the Court did not "pontificat[e] on issues which no
longer legitimately constitute an actual case or controversy [as this] will do more harm than good to the
nation as a whole."

The present petitions must be differentiated from Suplico. Primarily, in Suplico, what was assailed and
eventually cancelled was a stand-alone government procurement contract for a national broadband
network involving a one-time contractual relation between two parties-the government and a private
foreign corporation. As the issues therein involved specific government procurement policies and
standard principles on contracts, the majority opinion in Suplico found nothing exceptional therein, the
factual circumstances being peculiar only to the transactions and parties involved in the controversy.

The MOA-AD is part of a series of agreements

In the present controversy, the MOA-AD is a significant part of a series of agreements  necessary to

carry out the Tripoli Agreement 2001. The MOA-AD which dwells on the Ancestral Domain Aspect of said
Tripoli Agreement is the third such component to be undertaken following the implementation of
the Security Aspect in August 2001 and the Humanitarian, Rehabilitation and Development Aspect in
May 2002.

Accordingly, even if the Executive Secretary, in his Memorandum of August 28, 2008 to the Solicitor
General, has stated that "no matter what the Supreme Court ultimately decides[,] the government will
not sign the MOA[-AD],"mootness will not set in in light of the terms of the Tripoli Agreement 2001.

Need to formulate principles-guidelines

Surely, the present MOA-AD can be renegotiated or another one will be drawn up to carry out the
Ancestral Domain Aspect of the Tripoli Agreement 2001, in another or in any form, which could contain
similar or significantly drastic provisions. While the Court notes the word of the Executive Secretary that
the government "is committed to securing an agreement that is both constitutional and equitable
because that is the only way that long-lasting peace can be assured," it is minded to render a  decision on
the merits in the present petitions toformulate controlling principles to guide the bench, the bar, the
public and, most especially, the government in negotiating with the MILF regarding Ancestral Domain .

Respondents invite the Court's attention to the separate opinion of then Chief Justice Artemio
Panganiban inSanlakas v. Reyes104 in which he stated that the doctrine of "capable of repetition yet
evading review" can override mootness, "provided the party raising it in a proper case has been and/or
continue to be prejudiced or damaged as a direct result of their issuance." They contend that the Court
must have jurisdiction over the subject matter for the doctrine to be invoked.

The present petitions all contain prayers for Prohibition over which this Court exercises original
jurisdiction. While G.R. No. 183893 (City of Iligan v. GRP) is a petition for Injunction and Declaratory
Relief, the Court will treat it as one for Prohibition as it has far reaching implications and raises questions
that need to be resolved.105 At all events, the Court has jurisdiction over most if not the rest of the
petitions.

Indeed, the present petitions afford a proper venue for the Court to again apply the doctrine
immediately referred to as what it had done in a number of landmark cases. 106 There is
a reasonable expectation that petitioners, particularly the Provinces of North Cotabato, Zamboanga del
Norte and Sultan Kudarat, the Cities of Zamboanga, Iligan and Isabela, and the Municipality of Linamon,
will again be subjected to the same problem in the future as respondents' actions are capable of
repetition, in another or any form.

It is with respect to the prayers for Mandamus that the petitions have become moot, respondents
having, by Compliance of August 7, 2008, provided this Court and petitioners with official copies of the
final draft of the MOA-AD and its annexes. Too, intervenors have been furnished, or have procured for
themselves, copies of the MOA-AD.

V. SUBSTANTIVE ISSUES

As culled from the Petitions and Petitions-in-Intervention, there are basically two SUBSTANTIVE issues to
be resolved, one relating to the manner in which the MOA-AD was negotiated and finalized, the other
relating to its provisions, viz:

1. Did respondents violate constitutional and statutory provisions on public consultation and the right to
information when they negotiated and later initialed the MOA-AD?

2. Do the contents of the MOA-AD violate the Constitution and the laws?

ON THE FIRST SUBSTANTIVE ISSUE

Petitioners invoke their constitutional right to information on matters of public concern, as provided in
Section 7, Article III on the Bill of Rights:

Sec. 7. The right of the people to information on matters of public concern shall be recognized. Access to
official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as
well as to government research data used as basis for policy development, shall be afforded the citizen,
subject to such limitations as may be provided by law. 107

As early as 1948, in Subido v. Ozaeta,108 the Court has recognized the statutory right to examine and
inspect public records, a right which was eventually accorded constitutional status.

The right of access to public documents, as enshrined in both the 1973 Constitution and the 1987
Constitution, has been recognized as a self-executory constitutional right. 109

In the 1976 case of Baldoza v. Hon. Judge Dimaano,110 the Court ruled that access to public records is
predicated on the right of the people to acquire information on matters of public concern since,
undoubtedly, in a democracy, the pubic has a legitimate interest in matters of social and political
significance.

x x x The incorporation of this right in the Constitution is a recognition of the fundamental role of free
exchange of information in a democracy. There can be no realistic perception by the public of the
nation's problems, nor a meaningful democratic decision-making if they are denied access to
information of general interest. Information is needed to enable the members of society to cope with
the exigencies of the times. As has been aptly observed: "Maintaining the flow of such information
depends on protection for both its acquisition and its dissemination since, if either process is
interrupted, the flow inevitably ceases." x x x 111

In the same way that free discussion enables members of society to cope with the exigencies of their
time, access to information of general interest aids the people in democratic decision-making by giving
them a better perspective of the vital issues confronting the nation 112 so that they may be able to criticize
and participate in the affairs of the government in a responsible, reasonable and effective manner. It is
by ensuring an unfettered and uninhibited exchange of ideas among a well-informed public that a
government remains responsive to the changes desired by the people. 113

The MOA-AD is a matter of public concern

That the subject of the information sought in the present cases is a matter of public concern 114 faces no
serious challenge. In fact, respondents admit that the MOA-AD is indeed of public concern.115 In previous
cases, the Court found that the regularity of real estate transactions entered in the Register of
Deeds,116 the need for adequate notice to the public of the various laws, 117 the civil service eligibility of a
public employee,118 the proper management of GSIS funds allegedly used to grant loans to public
officials,119 the recovery of the Marcoses' alleged ill-gotten wealth, 120 and the identity of party-list
nominees,121 among others, are matters of public concern.Undoubtedly, the MOA-AD subject of the
present cases is of public concern, involving as it does thesovereignty and territorial integrity of the
State, which directly affects the lives of the public at large.

Matters of public concern covered by the right to information include steps and negotiations leading to
the consummation of the contract. In not distinguishing as to the executory nature or commercial
character of agreements, the Court has categorically ruled:

x x x [T]he right to information "contemplates inclusion of negotiations leading to the consummation of

the transaction." Certainly, a consummated contract is not a requirement for the exercise of the right to
information. Otherwise, the people can never exercise the right if no contract is consummated, and if
one is consummated, it may be too late for the public to expose its defects.

Requiring a consummated contract will keep the public in the dark until the contract, which may be
grossly disadvantageous to the government or even illegal, becomes fait accompli. This negates the
State policy of full transparency on matters of public concern, a situation which the framers of the
Constitution could not have intended. Such a requirement will prevent the citizenry from participating in
the public discussion of anyproposed contract, effectively truncating a basic right enshrined in the Bill of
Rights. We can allow neither an emasculation of a constitutional right, nor a retreat by the State of its
avowed "policy of full disclosure of all its transactions involving public interest." 122 (Emphasis and italics
in the original)

Intended as a "splendid symmetry"123 to the right to information under the Bill of Rights is the policy of
public disclosure under Section 28, Article II of the Constitution reading:

Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of
full public disclosure of all its transactions involving public interest. 124

The policy of full public disclosure enunciated in above-quoted Section 28 complements the right of

access to information on matters of public concern found in the Bill of Rights. The right to information
guarantees the right of the people to demand information, while Section 28 recognizes the duty of
officialdom to give information even if nobody demands.125

The policy of public disclosure establishes a concrete ethical principle for the conduct of public affairs in
a genuinely open democracy, with the people's right to know as the centerpiece. It is a mandate of the
State to be accountable by following such policy. 126 These provisions are vital to the exercise of the
freedom of expression and essential to hold public officials at all times accountable to the people. 127

Whether Section 28 is self-executory, the records of the deliberations of the Constitutional Commission
so disclose:

MR. SUAREZ. And since this is not self-executory, this policy will not be enunciated or will not be in force
and effect until after Congress shall have provided it.

MR. OPLE. I expect it to influence the climate of public ethics immediately but, of course, the
implementing law will have to be enacted by Congress, Mr. Presiding Officer. 128
The following discourse, after Commissioner Hilario Davide, Jr., sought clarification on the issue, is
enlightening.

MR. DAVIDE. I would like to get some clarifications on this. Mr. Presiding Officer, did I get the Gentleman
correctly as having said that this is not a self-executing provision? It would require a legislation by
Congress to implement?

MR. OPLE. Yes. Originally, it was going to be self-executing, but I accepted an amendment from
Commissioner Regalado, so that the safeguards on national interest are modified by the clause "as may
be provided by law"

MR. DAVIDE. But as worded, does it not mean that this will immediately take effect and Congress may
provide for reasonable safeguards on the sole ground national interest?

MR. OPLE. Yes. I think so, Mr. Presiding Officer, I said earlier that it should immediately influence the
climate of the conduct of public affairs but, of course, Congress here may no longer pass a law revoking
it, or if this is approved, revoking this principle, which is inconsistent with this policy. 129 (Emphasis
supplied)

Indubitably, the effectivity of the policy of public disclosure need not await the passing of a statute. As
Congress cannot revoke this principle, it is merely directed to provide for "reasonable safeguards." The
complete and effective exercise of the right to information necessitates that its complementary
provision on public disclosure derive the same self-executory nature. Since both provisions go hand-in-
hand, it is absurd to say that the broader 130 right to information on matters of public concern is already
enforceable while the correlative duty of the State to disclose its transactions involving public interest is
not enforceable until there is an enabling law.Respondents cannot thus point to the absence of an
implementing legislation as an excuse in not effecting such policy.

An essential element of these freedoms is to keep open a continuing dialogue or process of

communication between the government and the people. It is in the interest of the State that the
channels for free political discussion be maintained to the end that the government may perceive and
be responsive to the people's will. 131Envisioned to be corollary to the twin rights to information and
disclosure is the design for feedback mechanisms.

MS. ROSARIO BRAID. Yes. And lastly, Mr. Presiding Officer, will the people be able to participate? Will
the government provide feedback mechanisms so that the people can participate and can react where
the existing media facilities are not able to provide full feedback mechanisms to the government? I
suppose this will be part of the government implementing operational mechanisms.

MR. OPLE. Yes. I think through their elected representatives and that is how these courses take place.
There is a message and a feedback, both ways.

xxxx

MS. ROSARIO BRAID. Mr. Presiding Officer, may I just make one last sentence?
I think when we talk about the feedback network, we are not talking about public officials but also
network of private business o[r] community-based organizations that will be reacting. As a matter of
fact, we will put more credence or credibility on the private network of volunteers and voluntary
community-based organizations. So I do not think we are afraid that there will be another OMA in the
making.132(Emphasis supplied)

The imperative of a public consultation, as a species of the right to information, is evident in the
"marching orders" to respondents. The mechanics for the duty to disclose information and to conduct
public consultation regarding the peace agenda and process is manifestly provided by E.O. No. 3. 133 The
preambulatory clause of E.O. No. 3 declares that there is a need to further enhance the contribution of
civil society to the comprehensive peace process by institutionalizing the people's participation.

One of the three underlying principles of the comprehensive peace process is that it "should be
community-based, reflecting the sentiments, values and principles important to all Filipinos" and "shall
be defined not by the government alone, nor by the different contending groups only, but by all Filipinos
as one community."134 Included as a component of the comprehensive peace process is consensus-
building and empowerment for peace, which includes "continuing consultations on both national and
local levels to build consensus for a peace agenda and process, and the mobilization and facilitation of
people's participation in the peace process."135

Clearly, E.O. No. 3 contemplates not just the conduct of a plebiscite to effectuate "continuing"
consultations, contrary to respondents' position that plebiscite is "more than sufficient
consultation."136

Further, E.O. No. 3 enumerates the functions and responsibilities of the PAPP, one of which is to
"[c]onduct regular dialogues with the National Peace Forum (NPF) and other peace partners to seek
relevant information, comments, recommendations as well as to render appropriate and timely reports
on the progress of the comprehensive peace process." 137 E.O. No. 3 mandates the establishment of the
NPF to be "the principal forum for the PAPP to consult with and seek advi[c]e from the peace advocates,
peace partners and concerned sectors of society on both national and local levels, on the
implementation of the comprehensive peace process, as well as for government[-]civil society dialogue
and consensus-building on peace agenda and initiatives." 138

In fine, E.O. No. 3 establishes petitioners' right to be consulted on the peace agenda, as a corollary to
the constitutional right to information and disclosure.

PAPP Esperon committed grave abuse of discretion

The PAPP committed grave abuse of discretion  when he failed to carry out the pertinent consultation.
The furtive process by which the MOA-AD was designed and crafted  runs contrary to and in excess of
the legal authority, and amounts to a whimsical, capricious, oppressive, arbitrary and despotic exercise
thereof.
The Court may not, of course, require the PAPP to conduct the consultation in a particular way or
manner. It may, however, require him to comply with the law and discharge the functions within the
authority granted by the President.139

Petitioners are not claiming a seat at the negotiating table, contrary to respondents' retort in justifying
the denial of petitioners' right to be consulted. Respondents' stance manifests the manner by which
they treat the salient provisions of E.O. No. 3 on people's participation. Such disregard of the express
mandate of the President is not much different from superficial conduct toward token provisos that
border on classic lip service.140 It illustrates a gross evasion of positive duty and a virtual refusal to
perform the duty enjoined.

As for respondents' invocation of the doctrine of executive privilege, it is not tenable under the
premises. The argument defies sound reason when contrasted with E.O. No. 3's explicit provisions on
continuing consultation and dialogue on both national and local levels. The executive order even
recognizes the exercise of the public's right even before the GRP makes its official recommendations or
before the government proffers its definite propositions.141 It bear emphasis that E.O. No. 3 seeks to
elicit relevant advice, information, comments and recommendations from the people through dialogue.

AT ALL EVENTS, respondents effectively waived the defense of executive privilege in view of their
unqualified disclosure of the official copies of the final draft of the MOA-AD. By unconditionally
complying with the Court's August 4, 2008 Resolution, without a prayer for the document's disclosure  in
camera, or without a manifestation that it was complying therewith ex abundante ad cautelam.

Petitioners' assertion that the Local Government Code (LGC) of 1991 declares it a State policy to "require
all national agencies and offices to conduct periodic consultations with appropriate local government
units, non-governmental and people's organizations, and other concerned sectors of the community
before any project or program is implemented in their respective jurisdictions" 142 is well-taken. The LGC
chapter on intergovernmental relations puts flesh into this avowed policy:

Prior Consultations Required. - No project or program shall be implemented by government

authoritiesunless the consultations mentioned in Sections 2 (c)  and 26 hereof are complied with, and
prior approval of the sanggunian concerned is obtained: Provided, That occupants in areas where such
projects are to be implemented shall not be evicted unless appropriate relocation sites have been
provided, in accordance with the provisions of the Constitution. 143 (Italics and underscoring supplied)

In Lina, Jr. v. Hon. Paño,144 the Court held that the above-stated policy and above-quoted provision of
the LGU apply only to national programs or projects which are to be implemented in a particular local
community. Among the programs and projects covered are those that are critical to the environment
and human ecology including those that may call for the eviction of a particular group of people residing
in the locality where these will be implemented.145 The MOA-AD is one peculiar program that
unequivocally and unilaterally vests ownership of a vast territory to the Bangsamoro people,146 which
could pervasively and drastically result to the diaspora or displacement of a great number of
inhabitants from their total environment.
With respect to the indigenous cultural communities/indigenous peoples (ICCs/IPs), whose interests are
represented herein by petitioner Lopez and are adversely affected by the MOA-AD, the ICCs/IPs have,
under the IPRA, the right to participate fully at all levels of decision-making in matters which may affect
their rights, lives and destinies.147 The MOA-AD, an instrument recognizing ancestral domain, failed to
justify its non-compliance with the clear-cut mechanisms ordained in said Act, 148 which entails, among
other things, the observance of the free and prior informed consent of the ICCs/IPs.

Notably, the IPRA does not grant the Executive Department or any government agency the power to
delineate and recognize an ancestral domain claim  by mere agreement or compromise . The recognition
of the ancestral domain is the raison d'etre of the MOA-AD, without which all other stipulations or
"consensus points" necessarily must fail. In proceeding to make a sweeping declaration on ancestral
domain, without complying with the IPRA, which is cited as one of the TOR of the MOA-AD, respondents
clearly transcended the boundaries of their authority. As it seems, even the heart of the MOA-AD is still
subject to necessary changes to the legal framework. While paragraph 7 on Governance suspends the
effectivity of all provisions requiring changes to the legal framework, such clause is itself invalid, as will
be discussed in the following section.

Indeed, ours is an open society, with all the acts of the government subject to public scrutiny and
available always to public cognizance. This has to be so if the country is to remain democratic, with
sovereignty residing in the people and all government authority emanating from them. 149

ON THE SECOND SUBSTANTIVE ISSUE

With regard to the provisions of the MOA-AD, there can be no question that they cannot all be
accommodated under the present Constitution and laws. Respondents have admitted as much in the
oral arguments before this Court, and the MOA-AD itself recognizes the need to amend the existing legal
framework to render effective at least some of its provisions. Respondents, nonetheless, counter that
the MOA-AD is free of any legal infirmity because any provisions therein which are inconsistent with the
present legal framework will not be effective until the necessary changes to that framework are made.
The validity of this argument will be considered later. For now, the Court shall pass upon how

The MOA-AD is inconsistent with the Constitution and laws as presently worded.

In general, the objections against the MOA-AD center on the extent of the powers conceded therein to
the BJE. Petitioners assert that the powers granted to the BJE exceed those granted to any local
government under present laws, and even go beyond those of the present ARMM. Before assessing
some of the specific powers that would have been vested in the BJE, however, it would be useful to turn
first to a general idea that serves as a unifying link to the different provisions of the MOA-AD,
namely, the international law concept of association. Significantly, the MOA-AD explicitly alludes to this
concept, indicating that the Parties actually framed its provisions with it in mind.

Association is referred to in paragraph 3 on TERRITORY, paragraph 11 on RESOURCES, and paragraph 4

on GOVERNANCE. It is in the last mentioned provision, however, that the MOA-AD most clearly uses it to
describe theenvisioned relationship between the BJE and the Central Government.
4. The relationship between the Central Government and the Bangsamoro juridical entity shall
beassociative characterized by shared authority and responsibility  with a structure of governance
based on executive, legislative, judicial and administrative institutions with defined powers and
functions in the comprehensive compact. A period of transition shall be established in a comprehensive
peace compact specifying the relationship between the Central Government and the BJE. (Emphasis and
underscoring supplied)

The nature of the "associative" relationship may have been intended to be defined more precisely in the
still to be forged Comprehensive Compact. Nonetheless, given that there is a concept of "association" in
international law, and the MOA-AD - by its inclusion of international law instruments in its TOR- placed
itself in an international legal context, that concept of association may be brought to bear in
understanding the use of the term "associative" in the MOA-AD.

Keitner and Reisman state that

[a]n association is formed when two states of unequal power voluntarily establish durable links. In the
basic model, one state, the associate, delegates certain responsibilities to the other, the principal,
while maintaining its international status as a state. Free associations represent a middle ground
between integration and independence. x x x150 (Emphasis and underscoring supplied)

For purposes of illustration, the Republic of the Marshall Islands and the Federated States of Micronesia
(FSM), formerly part of the U.S.-administered Trust Territory of the Pacific Islands, 151 are associated
states of the U.S. pursuant to a Compact of Free Association. The currency in these countries is the U.S.
dollar, indicating their very close ties with the U.S., yet they issue their own travel documents, which is a
mark of their statehood. Their international legal status as states was confirmed by the UN Security
Council and by their admission to UN membership.

According to their compacts of free association, the Marshall Islands and the FSM generally have the
capacity to conduct foreign affairs in their own name and right, such capacity extending to matters such
as the law of the sea, marine resources, trade, banking, postal, civil aviation, and cultural relations. The
U.S. government, when conducting its foreign affairs, is obligated to consult with the governments of
the Marshall Islands or the FSM on matters which it (U.S. government) regards as relating to or affecting
either government.

In the event of attacks or threats against the Marshall Islands or the FSM, the U.S. government has the
authority and obligation to defend them as if they were part of U.S. territory. The U.S. government,
moreover, has the option of establishing and using military areas and facilities within these associated
states and has the right to bar the military personnel of any third country from having access to these
territories for military purposes.

It bears noting that in U.S. constitutional and international practice, free association is understood as an
international association between sovereigns. The Compact of Free Association is a treaty which is
subordinate to the associated nation's national constitution, and each party may terminate the
association consistent with the right of independence. It has been said that, with the admission of the
U.S.-associated states to the UN in 1990, the UN recognized that the American model of free association
is actually based on an underlying status of independence. 152

In international practice, the "associated state" arrangement has usually been used as a transitional
device of former colonies on their way to full independence . Examples of states that have passed
through the status of associated states as a transitional phase are Antigua, St. Kitts-Nevis-Anguilla,
Dominica, St. Lucia, St. Vincent and Grenada. All have since become independent states. 153

Back to the MOA-AD, it contains many provisions which are consistent with the international legal
concept ofassociation, specifically the following: the BJE's capacity to enter into economic and trade
relations with foreign countries, the commitment of the Central Government to ensure the BJE's
participation in meetings and events in the ASEAN and the specialized UN agencies, and the continuing
responsibility of the Central Government over external defense. Moreover, the BJE's right to
participate in Philippine official missions bearing on negotiation of border agreements, environmental
protection, and sharing of revenues pertaining to the bodies of water adjacent to or between the islands
forming part of the ancestral domain, resembles the right of the governments of FSM and the Marshall
Islands to be consulted by the U.S. government on any foreign affairs matter affecting them.

These provisions of the MOA indicate, among other things, that the Parties aimed to vest in the BJE the
status of an associated state or, at any rate, a status closely approximating it.

The concept of association is not recognized under the present Constitution

No province, city, or municipality, not even the ARMM, is recognized under our laws as having an
"associative" relationship with the national government. Indeed, the concept implies powers that go
beyond anything ever granted by the Constitution to any local or regional government. It also implies
the recognition of the associated entity as a state. The Constitution, however, does not contemplate any
state in this jurisdiction other than the Philippine State, much less does it provide for a transitory status
that aims to prepare any part of Philippine territory for independence.

Even the mere concept animating many of the MOA-AD's provisions, therefore, already requires for its
validity the amendment of constitutional provisions, specifically the following provisions of Article X:

SECTION 1. The territorial and political subdivisions of the Republic of the Philippines are the provinces,
cities, municipalities, and barangays. There shall be autonomous regions in Muslim Mindanao and the
Cordilleras as hereinafter provided.

SECTION 15. There shall be created autonomous regions in Muslim Mindanao and in the Cordilleras
consisting of provinces, cities, municipalities, and geographical areas sharing common and distinctive
historical and cultural heritage, economic and social structures, and other relevant characteristics within
the framework of this Constitution and the national sovereignty as well as territorial integrity of the
Republic of the Philippines.
The BJE is a far more powerful 
entity than the autonomous region 
recognized in the Constitution

It is not merely an expanded version of the ARMM, the status of its relationship with the national
government being fundamentally different from that of the ARMM. Indeed, BJE is a state in all but
name as it meets the criteria of a state laid down in the Montevideo Convention,154 namely,
a permanent population, a defined territory, agovernment, and a capacity to enter into relations with
other states.

Even assuming arguendo that the MOA-AD would not necessarily sever any portion of Philippine
territory, the spirit animating it - which has betrayed itself by its use of the concept of association - runs
counter to the national sovereignty and territorial integrity of the Republic.

The defining concept underlying the relationship between the national government and the BJE being
itself contrary to the present Constitution, it is not surprising that many of the specific provisions of
the MOA-AD on the formation and powers of the BJE are in conflict with the Constitution and the
laws.

Article X, Section 18 of the Constitution provides that "[t]he creation of the autonomous region shall be
effective when approved by a majority of the votes cast by the constituent units in a plebiscite called for
the purpose, provided that only provinces, cities, and geographic areas voting favorably in such
plebiscite shall be included in the autonomous region." (Emphasis supplied)

As reflected above, the BJE is more of a state than an autonomous region. But even assuming that it is
covered by the term "autonomous region" in the constitutional provision just quoted, the MOA-AD
would still be in conflict with it. Under paragraph 2(c) on TERRITORY in relation to 2(d) and 2(e), the
present geographic area of the ARMM and, in addition, the municipalities of Lanao del Norte which
voted for inclusion in the ARMM during the 2001 plebiscite - Baloi, Munai, Nunungan, Pantar, Tagoloan
and Tangkal - are automatically part of the BJE without need of another plebiscite, in contrast to the
areas under Categories A and B mentioned earlier in the overview. That the present components of the
ARMM and the above-mentioned municipalities voted for inclusion therein in 2001, however,
does not render another plebiscite unnecessary under the Constitution, precisely because what these
areas voted for then was their inclusion in the ARMM,  not the BJE.

The MOA-AD, moreover, would not

comply with Article X, Section 20 of 
the Constitution

since that provision defines the powers of autonomous regions as follows:

SECTION 20. Within its territorial jurisdiction and subject to the provisions of this Constitution and
national laws, the organic act of autonomous regions shall provide for legislative powers over:

(1) Administrative organization;

(2) Creation of sources of revenues;

(3) Ancestral domain and natural resources;

(4) Personal, family, and property relations;

(5) Regional urban and rural planning development;

(6) Economic, social, and tourism development;

(7) Educational policies;

(8) Preservation and development of the cultural heritage; and

(9) Such other matters as may be authorized by law for the promotion of the general welfare of the
people of the region. (Underscoring supplied)

Again on the premise that the BJE may be regarded as an autonomous region, the MOA-AD would
require an amendment that would expand the above-quoted provision. The mere passage of new
legislation pursuant to sub-paragraph No. 9 of said constitutional provision would not suffice, since any
new law that might vest in the BJE the powers found in the MOA-AD must, itself, comply with other
provisions of the Constitution. It would not do, for instance, to merely pass legislation vesting the BJE
with treaty-making power in order to accommodate paragraph 4 of the strand on RESOURCES which
states: "The BJE is free to enter into any economic cooperation and trade relations with foreign
countries: provided, however, that such relationships and understandings do not include aggression
against the Government of the Republic of the Philippines x x x." Under our constitutional system, it is
only the President who has that power. Pimentel v. Executive Secretary155 instructs:

In our system of government, the President, being the head of state, is regarded as the sole organ and
authority in external relations and is the country's sole representative with foreign nations. As the
chief architect of foreign policy, the President acts as the country's mouthpiece with respect to
international affairs. Hence, the President is vested with the authority to deal with foreign states and
governments, extend or withhold recognition, maintain diplomatic relations, enter into treaties, and
otherwise transact the business of foreign relations. In the realm of treaty-making, the President has
the sole authority to negotiate with other states.  (Emphasis and underscoring supplied)

Article II, Section 22 of the Constitution must also be amended if the scheme envisioned in the MOA-
AD is to be effected. That constitutional provision states: "The State recognizes and promotes the rights
of indigenous cultural communities within the framework of national unity and development."
(Underscoring supplied) Anassociative arrangement does not uphold national unity . While there may be
a semblance of unity because of the associative ties between the BJE and the national government, the
act of placing a portion of Philippine territory in a status which, in international practice, has generally
been a preparation for independence, is certainly not conducive to national unity.
Besides being irreconcilable with the Constitution, the MOA-AD is also inconsistent with prevailing
statutory law, among which are R.A. No. 9054156 or the Organic Act of the ARMM, and the IPRA.157

Article X, Section 3 of the Organic Act of the ARMM is a bar to the adoption of the definition of
"Bangsamoro people" used in the MOA-AD. Paragraph 1 on Concepts and Principles states:

1. It is the birthright of all Moros and all Indigenous peoples of Mindanao to identify themselves and
be accepted as "Bangsamoros". The Bangsamoro people refers to those who are natives or original
inhabitants of Mindanao and its adjacent islands including Palawan and the Sulu archipelago at the
time of conquest or colonization of its descendants whether mixed or of full blood. Spouses and their
descendants are classified as Bangsamoro. The freedom of choice of the Indigenous people shall be
respected. (Emphasis and underscoring supplied)

This use of the term Bangsamoro sharply contrasts with that found in the  Article X, Section 3 of the
Organic Act, which, rather than lumping together the identities of the Bangsamoro and other indigenous
peoples living in Mindanao, clearly distinguishes between Bangsamoro people and Tribal peoples, as
follows:

"As used in this Organic Act, the phrase "indigenous cultural community" refers to  Filipino citizens
residing in the autonomous region who are:

(a) Tribal peoples. These are citizens whose social, cultural and economic conditions distinguish them
from other sectors of the national community; and

(b) Bangsa Moro people. These are citizens who are believers in Islam and who have retained some or
all of their own social, economic, cultural, and political institutions."

Respecting the IPRA, it lays down the prevailing procedure for the delineation and recognition of
ancestral domains. The MOA-AD's manner of delineating the ancestral domain of the Bangsamoro
people is a clear departure from that procedure. By paragraph 1 of Territory, the Parties simply agree
that, subject to the delimitations in the agreed Schedules, "[t]he Bangsamoro homeland and historic
territory refer to the land mass as well as the maritime, terrestrial, fluvial and alluvial domains, and the
aerial domain, the atmospheric space above it, embracing the Mindanao-Sulu-Palawan geographic
region."

Chapter VIII of the IPRA, on the other hand, lays down a detailed procedure, as illustrated in the
following provisions thereof:

SECTION 52. Delineation Process. - The identification and delineation of ancestral domains shall be done
in accordance with the following procedures:

xxxx
b) Petition for Delineation. - The process of delineating a specific perimeter may be initiated by the NCIP
with the consent of the ICC/IP concerned, or through a Petition for Delineation filed with the NCIP, by a
majority of the members of the ICCs/IPs;

c) Delineation Proper. - The official delineation of ancestral domain boundaries including census of all
community members therein, shall be immediately undertaken by the Ancestral Domains Office upon
filing of the application by the ICCs/IPs concerned. Delineation will be done in coordination with the
community concerned and shall at all times include genuine involvement and participation by the
members of the communities concerned;

d) Proof Required. - Proof of Ancestral Domain Claims shall include the testimony of elders or
community under oath, and other documents directly or indirectly attesting to the possession or
occupation of the area since time immemorial by such ICCs/IPs in the concept of owners which shall be
any one (1) of the following authentic documents:

1) Written accounts of the ICCs/IPs customs and traditions;

2) Written accounts of the ICCs/IPs political structure and institution;

3) Pictures showing long term occupation such as those of old improvements, burial grounds, sacred
places and old villages;

4) Historical accounts, including pacts and agreements concerning boundaries entered into by the
ICCs/IPs concerned with other ICCs/IPs;

5) Survey plans and sketch maps;

6) Anthropological data;

7) Genealogical surveys;

8) Pictures and descriptive histories of traditional communal forests and hunting grounds;

9) Pictures and descriptive histories of traditional landmarks such as mountains, rivers, creeks, ridges,
hills, terraces and the like; and

10) Write-ups of names and places derived from the native dialect of the community.

e) Preparation of Maps. - On the basis of such investigation and the findings of fact based thereon, the
Ancestral Domains Office of the NCIP shall prepare a perimeter map, complete with technical
descriptions, and a description of the natural features and landmarks embraced therein;

f) Report of Investigation and Other Documents. - A complete copy of the preliminary census and a
report of investigation, shall be prepared by the Ancestral Domains Office of the NCIP;

g) Notice and Publication. - A copy of each document, including a translation in the native language of
the ICCs/IPs concerned shall be posted in a prominent place therein for at least fifteen (15) days. A copy
of the document shall also be posted at the local, provincial and regional offices of the NCIP, and shall be
published in a newspaper of general circulation once a week for two (2) consecutive weeks to allow
other claimants to file opposition thereto within fifteen (15) days from date of such publication:
Provided, That in areas where no such newspaper exists, broadcasting in a radio station will be a valid
substitute: Provided, further, That mere posting shall be deemed sufficient if both newspaper and radio
station are not available;

h) Endorsement to NCIP. - Within fifteen (15) days from publication, and of the inspection process, the
Ancestral Domains Office shall prepare a report to the NCIP endorsing a favorable action upon a claim
that is deemed to have sufficient proof. However, if the proof is deemed insufficient, the Ancestral
Domains Office shall require the submission of additional evidence: Provided, That the Ancestral
Domains Office shall reject any claim that is deemed patently false or fraudulent after inspection and
verification: Provided, further, That in case of rejection, the Ancestral Domains Office shall give the
applicant due notice, copy furnished all concerned, containing the grounds for denial. The denial shall be
appealable to the NCIP: Provided, furthermore, That in cases where there are conflicting claims among
ICCs/IPs on the boundaries of ancestral domain claims, the Ancestral Domains Office shall cause the
contending parties to meet and assist them in coming up with a preliminary resolution of the conflict,
without prejudice to its full adjudication according to the section below.

xxxx

To remove all doubts about the irreconcilability of the MOA-AD with the present legal system, a
discussion of not only the Constitution and domestic statutes, but also of international law is in order,
for

Article II, Section 2 of the Constitution states that the Philippines "adopts the generally accepted
principles of international law as part of the law of the land."

Applying this provision of the Constitution, the Court, in Mejoff v. Director of Prisons,158 held that the
Universal Declaration of Human Rights is part of the law of the land on account of which it ordered the
release on bail of a detained alien of Russian descent whose deportation order had not been executed
even after two years. Similarly, the Court in Agustin v. Edu159 applied the aforesaid constitutional
provision to the 1968 Vienna Convention on Road Signs and Signals.

International law has long recognized the right to self-determination of "peoples," understood not
merely as the entire population of a State but also a portion thereof. In considering the question of
whether the people of Quebec had a right to unilaterally secede from Canada, the Canadian Supreme
Court in REFERENCE RE SECESSION OF QUEBEC 160 had occasion to acknowledge that "the right of a
people to self-determination is now so widely recognized in international conventions that the principle
has acquired a status beyond ‘convention' and is considered a general principle of international law."

Among the conventions referred to are the International Covenant on Civil and Political Rights 161 and the
International Covenant on Economic, Social and Cultural Rights 162 which state, in Article 1 of both
covenants, that all peoples, by virtue of the right of self-determination, "freely determine their political
status and freely pursue their economic, social, and cultural development."

The people's right to self-determination should not, however, be understood as extending to a unilateral
right of secession. A distinction should be made between the right of internal and external self-
determination. REFERENCE RE SECESSION OF QUEBEC is again instructive:

"(ii) Scope of the Right to Self-determination

126. The recognized sources of international law establish that the right to self-determination of a
people is normally fulfilled through internal self-determination - a people's pursuit of its political,
economic, social and cultural development within the framework of an existing state.  A right
to external self-determination (which in this case potentially takes the form of the assertion of a right
to unilateral secession) arises in only the most extreme of cases and, even then, under carefully
defined circumstances. x x x

External self-determination can be defined as in the following statement from the Declaration on

Friendly Relations, supra, as

The establishment of a sovereign and independent State, the free association or integration with an
independent State or the emergence into any other political status freely determined by
a peopleconstitute modes of implementing the right of self-determination by that people. (Emphasis
added)

127. The international law principle of self-determination has evolved within a framework of respect
for the territorial integrity of existing states. The various international documents that support the
existence of a people's right to self-determination also contain parallel statements supportive of the
conclusion that the exercise of such a right must be sufficiently limited to prevent threats to an existing
state's territorial integrity or the stability of relations between sovereign states.

x x x x (Emphasis, italics and underscoring supplied)

The Canadian Court went on to discuss the exceptional cases in which the right to external self-
determination can arise, namely, where a people is under colonial rule, is subject to foreign domination
or exploitation outside a colonial context, and - less definitely but asserted by a number of
commentators - is blocked from the meaningful exercise of its right to internal self-determination. The
Court ultimately held that the population of Quebec had no right to secession, as the same is not under
colonial rule or foreign domination, nor is it being deprived of the freedom to make political choices and
pursue economic, social and cultural development, citing that Quebec is equitably represented in
legislative, executive and judicial institutions within Canada, even occupying prominent positions
therein.

The exceptional nature of the right of secession is further exemplified in the REPORT OF THE
INTERNATIONAL COMMITTEE OF JURISTS ON THE LEGAL ASPECTS OF THE AALAND ISLANDS
QUESTION.163 There, Sweden presented to the Council of the League of Nations the question of whether
the inhabitants of the Aaland Islands should be authorized to determine by plebiscite if the archipelago
should remain under Finnish sovereignty or be incorporated in the kingdom of Sweden. The Council,
before resolving the question, appointed an International Committee composed of three jurists to
submit an opinion on the preliminary issue of whether the dispute should, based on international law,
be entirely left to the domestic jurisdiction of Finland. The Committee stated the rule as follows:

x x x [I]n the absence of express provisions in international treaties, the right of disposing of national
territory is essentially an attribute of the sovereignty of every State. Positive International Law does
not recognize the right of national groups, as such, to separate themselves from the State of which
they form part by the simple expression of a wish, any more than it recognizes the right of other States
to claim such a separation. Generally speaking, the grant or refusal of the right to a portion of its
population of determining its own political fate by plebiscite or by some other method, is, exclusively,
an attribute of the sovereignty of every State which is definitively constituted. A dispute between two
States concerning such a question, under normal conditions therefore, bears upon a question which
International Law leaves entirely to the domestic jurisdiction of one of the States concerned. Any other
solution would amount to an infringement of sovereign rights of a State and would involve the risk of
creating difficulties and a lack of stability which would not only be contrary to the very idea embodied in
term "State," but would also endanger the interests of the international community. If this right is not
possessed by a large or small section of a nation, neither can it be held by the State to which the
national group wishes to be attached, nor by any other State. (Emphasis and underscoring supplied)

The Committee held that the dispute concerning the Aaland Islands did not refer to a question which is
left by international law to the domestic jurisdiction of Finland, thereby applying the exception rather
than the rule elucidated above. Its ground for departing from the general rule, however, was a very
narrow one, namely, the Aaland Islands agitation originated at a time when Finland was undergoing
drastic political transformation. The internal situation of Finland was, according to the Committee, so
abnormal that, for a considerable time, the conditions required for the formation of a sovereign State
did not exist. In the midst of revolution, anarchy, and civil war, the legitimacy of the Finnish national
government was disputed by a large section of the people, and it had, in fact, been chased from the
capital and forcibly prevented from carrying out its duties. The armed camps and the police were
divided into two opposing forces. In light of these circumstances, Finland was not, during the relevant
time period, a "definitively constituted" sovereign state. The Committee, therefore, found that Finland
did not possess the right to withhold from a portion of its population the option to separate itself - a
right which sovereign nations generally have with respect to their own populations.

Turning now to the more specific category of indigenous peoples, this term has been used, in
scholarship as well as international, regional, and state practices, to refer to groups with distinct
cultures, histories, and connections to land (spiritual and otherwise) that have been forcibly
incorporated into a larger governing society. These groups are regarded as "indigenous" since they are
the living descendants of pre-invasion inhabitants of lands now dominated by others. Otherwise stated,
indigenous peoples, nations, or communities are culturally distinctive groups that find themselves
engulfed by settler societies born of the forces of empire and conquest. 164 Examples of groups who have
been regarded as indigenous peoples are the Maori of New Zealand and the aboriginal peoples of
Canada.

As with the broader category of "peoples," indigenous peoples situated within states do not have a
general right to independence or secession from those states under international law, 165 but they do
have rights amounting to what was discussed above as the right to internal self-determination.

In a historic development last September 13, 2007, the UN General Assembly adopted the United
Nations Declaration on the Rights of Indigenous Peoples (UN DRIP) through General Assembly
Resolution 61/295. The vote was 143 to 4, the Philippines being included among those in favor, and the
four voting against being Australia, Canada, New Zealand, and the U.S. The Declaration clearly
recognized the right of indigenous peoples to self-determination, encompassing the right to autonomy
or self-government, to wit:

Article 3

Indigenous peoples have the right to self-determination. By virtue of that right they freely determine
their political status and freely pursue their economic, social and cultural development.

Article 4

Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-

government in matters relating to their internal and local affairs, as well as ways and means for
financing their autonomous functions.

Article 5

Indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic,
social and cultural institutions, while retaining their right to participate fully, if they so choose, in the
political, economic, social and cultural life of the State.

Self-government, as used in international legal discourse pertaining to indigenous peoples, has been
understood as equivalent to "internal self-determination." 166 The extent of self-determination provided
for in the UN DRIP is more particularly defined in its subsequent articles, some of which are quoted
hereunder:

Article 8

1. Indigenous peoples and individuals have the right not to be subjected to forced assimilation or
destruction of their culture.

2. States shall provide effective mechanisms for prevention of, and redress for:

(a) Any action which has the aim or effect of depriving them of their integrity as distinct peoples, or of
their cultural values or ethnic identities;
(b) Any action which has the aim or effect of dispossessing them of their lands, territories or
resources;

(c) Any form of forced population transfer which has the aim or effect of violating or undermining any
of their rights;

(d) Any form of forced assimilation or integration;

(e) Any form of propaganda designed to promote or incite racial or ethnic discrimination directed
against them.

Article 21

1. Indigenous peoples have the right, without discrimination, to the improvement of their economic and
social conditions, including, inter alia, in the areas of education, employment, vocational training and
retraining, housing, sanitation, health and social security.

2. States shall take effective measures and, where appropriate, special measures to ensure continuing
improvement of their economic and social conditions. Particular attention shall be paid to the rights and
special needs of indigenous elders, women, youth, children and persons with disabilities.

Article 26

1. Indigenous peoples have the right to the lands, territories and resources which they have
traditionally owned, occupied or otherwise used or acquired.

2. Indigenous peoples have the right to own, use, develop and control the lands, territories and
resources that they possess by reason of traditional ownership or other traditional occupation or use, as
well as those which they have otherwise acquired.

3. States shall give legal recognition and protection to these lands, territories and resources. Such
recognition shall be conducted with due respect to the customs, traditions and land tenure systems of
the indigenous peoples concerned.

Article 30

1. Military activities shall not take place in the lands or territories of indigenous peoples, unless justified
by a relevant public interest or otherwise freely agreed with or requested by the indigenous peoples
concerned.

2. States shall undertake effective consultations with the indigenous peoples concerned, through
appropriate procedures and in particular through their representative institutions, prior to using their
lands or territories for military activities.

Article 32
1. Indigenous peoples have the right to determine and develop priorities and strategies for the
development or use of their lands or territories and other resources.

2. States shall consult and cooperate in good faith with the indigenous peoples concerned through their
own representative institutions in order to obtain their free and informed consent prior to the approval
of any project affecting their lands or territories and other resources, particularly in connection with the
development, utilization or exploitation of mineral, water or other resources.

3. States shall provide effective mechanisms for just and fair redress for any such activities, and
appropriate measures shall be taken to mitigate adverse environmental, economic, social, cultural or
spiritual impact.

Article 37

1. Indigenous peoples have the right to the recognition, observance and enforcement of treaties,
agreements and other constructive arrangements concluded with States or their successors and to have
States honour and respect such treaties, agreements and other constructive arrangements.

2. Nothing in this Declaration may be interpreted as diminishing or eliminating the rights of indigenous
peoples contained in treaties, agreements and other constructive arrangements.

Article 38

States in consultation and cooperation with indigenous peoples, shall take the appropriate measures,
including legislative measures, to achieve the ends of this Declaration.

Assuming that the UN DRIP, like the Universal Declaration on Human Rights, must now be regarded as
embodying customary international law - a question which the Court need not definitively resolve here -
the obligations enumerated therein do not strictly require the Republic to grant the Bangsamoro people,
through the instrumentality of the BJE, the particular rights and powers provided for in the MOA-AD.
Even the more specific provisions of the UN DRIP are general in scope, allowing for flexibility in its
application by the different States.

There is, for instance, no requirement in the UN DRIP that States now guarantee indigenous peoples
their own police and internal security force. Indeed, Article 8 presupposes that it is the State which will
provide protection for indigenous peoples against acts like the forced dispossession of their lands - a
function that is normally performed by police officers. If the protection of a right so essential to
indigenous people's identity is acknowledged to be the responsibility of the State, then surely the
protection of rights less significant to them as such peoples would also be the duty of States. Nor is
there in the UN DRIP an acknowledgement of the right of indigenous peoples to the aerial domain and
atmospheric space. What it upholds, in Article 26 thereof, is the right of indigenous peoples to the lands,
territories and resources which they have traditionally owned, occupied or otherwise used or acquired.
Moreover, the UN DRIP, while upholding the right of indigenous peoples to autonomy, does not obligate
States to grant indigenous peoples the near-independent status of an associated state. All the rights
recognized in that document are qualified in Article 46 as follows:

1. Nothing in this Declaration may be interpreted as implying for any State, people, group or person any
right to engage in any activity or to perform any act contrary to the Charter of the United Nations
orconstrued as authorizing or encouraging any action which would dismember or impair, totally or in
part, the territorial integrity or political unity of sovereign and independent States.

Even if the UN DRIP were considered as part of the law of the land pursuant to Article II, Section 2 of the
Constitution, it would not suffice to uphold the validity of the MOA-AD so as to render its compliance
with other laws unnecessary.

It is, therefore, clear that the MOA-AD contains numerous provisions that cannot be reconciled with
the Constitution and the laws as presently worded. Respondents proffer, however, that the signing of
the MOA-AD alone would not have entailed any violation of law or grave abuse of discretion on their
part, precisely because it stipulates that the provisions thereof inconsistent with the laws shall not take
effect until these laws are amended. They cite paragraph 7 of the MOA-AD strand on GOVERNANCE
quoted earlier, but which is reproduced below for convenience:

7. The Parties agree that the mechanisms and modalities for the actual implementation of this MOA-AD
shall be spelt out in the Comprehensive Compact to mutually take such steps to enable it to occur
effectively.

Any provisions of the MOA-AD requiring amendments to the existing legal framework shall come into
force upon signing of a Comprehensive Compact and upon effecting the necessary changes to the legal
framework with due regard to non derogation of prior agreements and within the stipulated timeframe
to be contained in the Comprehensive Compact.

Indeed, the foregoing stipulation keeps many controversial provisions of the MOA-AD from coming into
force until the necessary changes to the legal framework are effected. While the word "Constitution" is
not mentioned in the provision now under consideration or anywhere else in the MOA-AD, the term
"legal framework" is certainly broad enough to include the Constitution.

Notwithstanding the suspensive clause, however, respondents, by their mere act of incorporating in the
MOA-AD the provisions thereof regarding the associative relationship between the BJE and the Central
Government, have already violated the Memorandum of Instructions From The President dated March
1, 2001, which states that the "negotiations shall be conducted in accordance with x x x the principles of
the sovereignty and territorial integrityof the Republic of the Philippines." (Emphasis supplied)
Establishing an associative relationship between the BJE and the Central Government is, for the reasons
already discussed, a preparation for independence, or worse, an implicit acknowledgment of an
independent status already prevailing.
Even apart from the above-mentioned Memorandum, however, the MOA-AD is defective because the
suspensive clause is invalid, as discussed below.

The authority of the GRP Peace Negotiating Panel to negotiate with the MILF is founded on E.O. No. 3,
Section 5(c), which states that there shall be established Government Peace Negotiating Panels for
negotiations with different rebel groups to be "appointed by the President as her official emissaries to
conduct negotiations, dialogues, and face-to-face discussions with rebel groups." These negotiating
panels are to report to the President, through the PAPP on the conduct and progress of the
negotiations.

It bears noting that the GRP Peace Panel, in exploring lasting solutions to the Moro Problem through its
negotiations with the MILF, was not restricted by E.O. No. 3 only to those options available under the
laws as they presently stand. One of the components of a comprehensive peace process, which E.O. No.
3 collectively refers to as the "Paths to Peace," is the pursuit of social, economic, and political reforms
which may require new legislation or even constitutional amendments. Sec. 4(a) of E.O. No. 3, which
reiterates Section 3(a), of E.O. No. 125,167states:

SECTION 4. The Six Paths to Peace. - The components of the comprehensive peace process comprise the
processes known as the "Paths to Peace". These component processes are interrelated and not mutually
exclusive, and must therefore be pursued simultaneously in a coordinated and integrated fashion. They
shall include, but may not be limited to, the following:

a. PURSUIT OF SOCIAL, ECONOMIC AND POLITICAL REFORMS. This component involves the  vigorous
implementation of various policies, reforms, programs and projects aimed at addressing the root
causes of internal armed conflicts and social unrest. This may require administrative action, new
legislation or even constitutional amendments.

x x x x (Emphasis supplied)

The MOA-AD, therefore, may reasonably be perceived as an attempt of respondents to address,

pursuant to this provision of E.O. No. 3, the root causes of the armed conflict in Mindanao. The E.O.
authorized them to "think outside the box," so to speak. Hence, they negotiated and were set on signing
the MOA-AD that included various social, economic, and political reforms which cannot, however, all be
accommodated within the present legal framework, and which thus would require new legislation and
constitutional amendments.

The inquiry on the legality of the "suspensive clause," however, cannot stop here, because it must be
askedwhether the President herself may exercise the power delegated to the GRP Peace Panel under
E.O. No. 3, Sec. 4(a).

The President cannot delegate a power that she herself does not possess. May the President, in the
course of peace negotiations, agree to pursue reforms that would require new legislation and
constitutional amendments, or should the reforms be restricted only to those solutions which the
present laws allow? The answer to this question requires a discussion of the extent of the President's
power to conduct peace negotiations.

That the authority of the President to conduct peace negotiations with rebel groups is not explicitly
mentioned in the Constitution does not mean that she has no such authority. In Sanlakas v. Executive
Secretary,168 in issue was the authority of the President to declare a state of rebellion - an authority
which is not expressly provided for in the Constitution. The Court held thus:

"In her ponencia in Marcos v. Manglapus, Justice Cortes put her thesis into jurisprudence. There, the
Court, by a slim 8-7 margin, upheld the President's power to forbid the return of her exiled predecessor.
The rationale for the majority's ruling rested on the President's

. . . unstated residual powers which are implied from the grant of executive power and which
arenecessary for her to comply with her duties under the Constitution. The powers of the President
are not limited to what are expressly enumerated in the article on the Executive Department and in
scattered provisions of the Constitution. This is so, notwithstanding the avowed intent of the members
of the Constitutional Commission of 1986 to limit the powers of the President as a reaction to the
abuses under the regime of Mr. Marcos, for the result was a limitation of specific powers of the
President, particularly those relating to the commander-in-chief clause, but not a diminution of the
general grant of executive power.

Thus, the President's authority to declare a state of rebellion springs in the main from her powers as
chief executive and, at the same time, draws strength from her Commander-in-Chief powers. x x x
(Emphasis and underscoring supplied)

Similarly, the President's power to conduct peace negotiations is implicitly included in her powers as
Chief Executive and Commander-in-Chief. As Chief Executive, the President has the general
responsibility to promote public peace, and as Commander-in-Chief, she has the more specific duty to
prevent and suppress rebellion and lawless violence. 169

As the experience of nations which have similarly gone through internal armed conflict will show,
however, peace is rarely attained by simply pursuing a military solution. Oftentimes, changes as far-
reaching as a fundamental reconfiguration of the nation's constitutional structure is required. The
observations of Dr. Kirsti Samuels are enlightening, to wit:

x x x [T]he fact remains that a successful political and governance transition must form the core of any
post-conflict peace-building mission. As we have observed in Liberia and Haiti over the last ten years,
conflict cessation without modification of the political environment, even where state-building is
undertaken through technical electoral assistance and institution- or capacity-building, is unlikely to
succeed. On average, more than 50 percent of states emerging from conflict return to conflict.
Moreover, a substantial proportion of transitions have resulted in weak or limited democracies.

The design of a constitution and its constitution-making process can play an important role in the
political and governance transition. Constitution-making after conflict is an opportunity to create a
common vision of the future of a state and a road map on how to get there. The constitution can be
partly a peace agreement and partly a framework setting up the rules by which the new democracy will
operate.170

In the same vein, Professor Christine Bell, in her article on the nature and legal status of peace
agreements, observed that the typical way that peace agreements establish or confirm mechanisms for
demilitarization and demobilization is by linking them to new constitutional structures addressing
governance, elections, and legal and human rights institutions. 171

In the Philippine experience, the link between peace agreements and constitution-making has been
recognized by no less than the framers of the Constitution. Behind the provisions of the Constitution on
autonomous regions172 is the framers' intention to implement a particular peace agreement, namely, the
Tripoli Agreement of 1976 between the GRP and the MNLF, signed by then Undersecretary of National
Defense Carmelo Z. Barbero and then MNLF Chairman Nur Misuari.

MR. ROMULO. There are other speakers; so, although I have some more questions, I will reserve my
right to ask them if they are not covered by the other speakers. I have only two questions.

I heard one of the Commissioners say that local autonomy already exists in the Muslim region; it is
working very well; it has, in fact, diminished a great deal of the problems. So, my question is:  since that
already exists, why do we have to go into something new?

MR. OPLE. May I answer that on behalf of Chairman Nolledo. Commissioner Yusup Abubakar is right
thatcertain definite steps have been taken to implement the provisions of the Tripoli Agreement with
respect to an autonomous region in Mindanao. This is a good first step, but there is no question that
this is merely a partial response to the Tripoli Agreement itself and to the fuller standard of regional
autonomy contemplated in that agreement, and now by state policy. 173(Emphasis supplied)

The constitutional provisions on autonomy and the statutes enacted pursuant to them have, to the
credit of their drafters, been partly successful. Nonetheless, the Filipino people are still faced with the
reality of an on-going conflict between the Government and the MILF. If the President is to be expected
to find means for bringing this conflict to an end and to achieve lasting peace in Mindanao, then she
must be given the leeway to explore, in the course of peace negotiations, solutions that may require
changes to the Constitution for their implementation. Being uniquely vested with the power to conduct
peace negotiations with rebel groups, the President is in a singular position to know the precise nature
of their grievances which, if resolved, may bring an end to hostilities.

The President may not, of course, unilaterally implement the solutions that she considers viable, but she
may not be prevented from submitting them as recommendations to Congress, which could then, if it is
minded, act upon them pursuant to the legal procedures for constitutional amendment and revision. In
particular, Congress would have the option, pursuant to Article XVII, Sections 1 and 3 of the
Constitution, to propose the recommended amendments or revision to the people, call a constitutional
convention, or submit to the electorate the question of calling such a convention.
While the President does not possess constituent powers - as those powers may be exercised only by
Congress, a Constitutional Convention, or the people through initiative and referendum - she may
submit proposals for constitutional change to Congress in a manner that does not involve the arrogation
of constituent powers.

In Sanidad v. COMELEC,174 in issue was the legality of then President Marcos' act of directly submitting
proposals for constitutional amendments to a referendum, bypassing the interim National Assembly
which was the body vested by the 1973 Constitution with the power to propose such amendments.
President Marcos, it will be recalled, never convened the interim National Assembly. The majority
upheld the President's act, holding that "the urges of absolute necessity" compelled the President as the
agent of the people to act as he did, there being no interim National Assembly to propose constitutional
amendments. Against this ruling, Justices Teehankee and Muñoz Palma vigorously dissented. The
Court's concern at present, however, is not with regard to the point on which it was then divided in that
controversial case, but on that which was not disputed by either side.

Justice Teehankee's dissent,175 in particular, bears noting. While he disagreed that the President may
directly submit proposed constitutional amendments to a referendum, implicit in his opinion is a
recognition that he would have upheld the President's action along with the majority  had the President
convened the interim National Assembly and coursed his proposals through it. Thus Justice Teehankee
opined:

"Since the Constitution provides for the organization of the essential departments of government,
defines and delimits the powers of each and prescribes the manner of the exercise of such powers, and
the constituent power has not been granted to but has been withheld from the President or Prime
Minister, it follows that the President's questioned decrees proposing and submitting constitutional
amendments directly to the people (without the intervention of the interim National Assembly in
whom the power is expressly vested) are devoid of constitutional and legal basis." 176 (Emphasis
supplied)

From the foregoing discussion, the principle may be inferred that the President - in the course of
conducting peace negotiations - may validly consider implementing even those policies that require
changes to the Constitution, but she may not unilaterally implement them without the intervention of
Congress, or act in any way as if the assent of that body were assumed as a certainty.

Since, under the present Constitution, the people also have the power to directly propose amendments
through initiative and referendum, the President may also submit her recommendations to the people,
not as a formal proposal to be voted on in a plebiscite similar to what President Marcos did in Sanidad,
but for their independent consideration of whether these recommendations merit being formally
proposed through initiative.

These recommendations, however, may amount to nothing more than the President's suggestions to
the people, for any further involvement in the process of initiative by the Chief Executive may vitiate its
character as a genuine "people's initiative." The only initiative recognized by the Constitution is that
which truly proceeds from the people. As the Court stated in Lambino v. COMELEC:177
"The Lambino Group claims that their initiative is the ‘people's voice.' However, the Lambino Group
unabashedly states in ULAP Resolution No. 2006-02, in the verification of their petition with the
COMELEC, that ‘ULAP maintains its unqualified support to the agenda of Her Excellency President Gloria
Macapagal-Arroyo for constitutional reforms.' The Lambino Group thus admits that their ‘people's'
initiative is an ‘unqualified support to the agenda' of the incumbent President to change the
Constitution. This forewarns the Court to be wary of incantations of ‘people's voice' or ‘sovereign will' in
the present initiative."

It will be observed that the President has authority, as stated in her oath of office, 178 only to preserve
and defend the Constitution. Such presidential power does not, however, extend to allowing her to
change the Constitution, but simply to recommend proposed amendments or revision. As long as she
limits herself to recommending these changes and submits to the proper procedure for constitutional
amendments and revision, her mere recommendation need not be construed as an unconstitutional act.

The foregoing discussion focused on the President's authority to propose constitutional amendments,

since her authority to propose new legislation is not in controversy. It has been an accepted practice for
Presidents in this jurisdiction to propose new legislation. One of the more prominent instances the
practice is usually done is in the yearly State of the Nation Address of the President to Congress.
Moreover, the annual general appropriations bill has always been based on the budget prepared by the
President, which - for all intents and purposes - is a proposal for new legislation coming from the
President.179

The "suspensive clause" in the MOA-AD viewed in light of the above-discussed standards

Given the limited nature of the President's authority to propose constitutional amendments, she cannot
guaranteeto any third party that the required amendments will eventually be put in place, nor even be
submitted to a plebiscite. The most she could do is submit these proposals as recommendations either
to Congress or the people, in whom constituent powers are vested.

Paragraph 7 on Governance of the MOA-AD states, however, that all provisions thereof which cannot be
reconciled with the present Constitution and laws "shall come into force upon signing of a
Comprehensive Compact and upon effecting the necessary changes to the legal framework." This
stipulation does not bear the marks of a suspensive condition - defined in civil law as a future
and uncertain event - but of a term. It is not a question of whether the necessary changes to the legal
framework will be effected, but when. That there is no uncertainty being contemplated is plain from
what follows, for the paragraph goes on to state that the contemplated changes shall be "with due
regard to non derogation of prior agreements and within the stipulated timeframe to be contained in
the Comprehensive Compact."

Pursuant to this stipulation, therefore, it is mandatory for the GRP to effect the changes to the legal
framework contemplated in the MOA-AD - which changes would include constitutional amendments, as
discussed earlier. It bears noting that,
By the time these changes are put in place, the MOA-AD itself would be counted among the "prior
agreements" from which there could be no derogation.

What remains for discussion in the Comprehensive Compact would merely be the implementing details
for these "consensus points" and, notably, the deadline for effecting the contemplated changes to the
legal framework.

Plainly, stipulation-paragraph 7 on GOVERNANCE is inconsistent with the limits of the President's

authority to propose constitutional amendments, it being a virtual guarantee that the Constitution and
the laws of the Republic of the Philippines will certainly be adjusted to conform to all the "consensus
points" found in the MOA-AD.Hence, it must be struck down as unconstitutional.

A comparison between the "suspensive clause" of the MOA-AD with a similar provision appearing in the
1996 final peace agreement between the MNLF and the GRP is most instructive.

As a backdrop, the parties to the 1996 Agreement stipulated that it would be implemented in two
phases. Phase Icovered a three-year transitional period involving the putting up of new administrative
structures through Executive Order, such as the Special Zone of Peace and Development (SZOPAD) and
the Southern Philippines Council for Peace and Development (SPCPD), while Phase II covered the
establishment of the new regional autonomous government through amendment or repeal of R.A. No.
6734, which was then the Organic Act of the ARMM.

The stipulations on Phase II consisted of specific agreements on the structure of the expanded
autonomous region envisioned by the parties. To that extent, they are similar to the provisions of the
MOA-AD. There is, however, a crucial difference between the two agreements. While the MOA-
AD virtually guarantees that the "necessary changes to the legal framework" will be put in place, the
GRP-MNLF final peace agreement states thus: "Accordingly, these provisions [on Phase II] shall
be recommended by the GRP to Congress for incorporation in the amendatory or repealing law."

Concerns have been raised that the MOA-AD would have given rise to a binding international law
obligation on the part of the Philippines to change its Constitution in conformity thereto, on the ground
that it may be considered either as a binding agreement under international law, or a unilateral
declaration of the Philippine government to the international community that it would grant to the
Bangsamoro people all the concessions therein stated. Neither ground finds sufficient support in
international law, however.

The MOA-AD, as earlier mentioned in the overview thereof, would have included foreign dignitaries as
signatories. In addition, representatives of other nations were invited to witness its signing in Kuala
Lumpur. These circumstances readily lead one to surmise that the MOA-AD would have had the status
of a binding international agreement had it been signed. An examination of the prevailing principles in
international law, however, leads to the contrary conclusion.

The Decision on Challenge to Jurisdiction: Lomé Accord Amnesty 180 (the Lomé Accord case) of the Special
Court of Sierra Leone is enlightening. The Lomé Accord was a peace agreement signed on July 7, 1999
between the Government of Sierra Leone and the Revolutionary United Front (RUF), a rebel group with
which the Sierra Leone Government had been in armed conflict for around eight years at the time of
signing. There were non-contracting signatories to the agreement, among which were the Government
of the Togolese Republic, the Economic Community of West African States, and the UN.

On January 16, 2002, after a successful negotiation between the UN Secretary-General and the Sierra
Leone Government, another agreement was entered into by the UN and that Government whereby the
Special Court of Sierra Leone was established. The sole purpose of the Special Court, an international
court, was to try persons who bore the greatest responsibility for serious violations of international
humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since November 30,
1996.

Among the stipulations of the Lomé Accord was a provision for the full pardon of the members of the
RUF with respect to anything done by them in pursuit of their objectives as members of that
organization since the conflict began.

In the Lomé Accord case, the Defence argued that the Accord created an  internationally
binding obligation not to prosecute the beneficiaries of the amnesty provided therein, citing, among
other things, the participation of foreign dignitaries and international organizations in the finalization of
that agreement. The Special Court, however, rejected this argument, ruling that the Lome Accord is not
a treaty and that it can only create binding obligations and rights between the parties in municipal law,
not in international law. Hence, the Special Court held, it is ineffective in depriving an international court
like it of jurisdiction.

"37. In regard to the nature of a negotiated settlement of an internal armed conflict it is easy to assume
and to argue with some degree of plausibility, as Defence counsel for the defendants seem to have
done, that the mere fact that in addition to the parties to the conflict, the document formalizing the
settlement is signed by foreign heads of state or their representatives and representatives of
international organizations, means the agreement of the parties is internationalized so as to create
obligations in international law.

xxxx

40. Almost every conflict resolution will involve the parties to the conflict and the mediator or facilitator
of the settlement, or persons or bodies under whose auspices the settlement took place but who are not
at all parties to the conflict, are not contracting parties and who do not claim any obligation from the
contracting parties or incur any obligation from the settlement.

41. In this case, the parties to the conflict are the lawful authority of the State and the RUF which has
no status of statehood and is to all intents and purposes a faction within the state. The non-
contracting signatories of the Lomé Agreement were moral guarantors of the principle that, in the
terms of Article XXXIV of the Agreement, "this peace agreement is implemented with integrity and in
good faith by both parties". The moral guarantors assumed no legal obligation. It is recalled that the
UN by its representative appended, presumably for avoidance of doubt, an understanding of the extent
of the agreement to be implemented as not including certain international crimes.

42. An international agreement in the nature of a treaty must create rights and obligations regulated by
international law so that a breach of its terms will be a breach determined under international law
which will also provide principle means of enforcement. The Lomé Agreement created neither rights
nor obligations capable of being regulated by international law. An agreement such as the Lomé
Agreement which brings to an end an internal armed conflict no doubt creates a factual situation of
restoration of peace that the international community acting through the Security Council may take
note of. That, however, will not convert it to an international agreement which creates an obligation
enforceable in international, as distinguished from municipal, law. A breach of the terms of such a
peace agreement resulting in resumption of internal armed conflict or creating a threat to peace in the
determination of the Security Council may indicate a reversal of the factual situation of peace to be
visited with possible legal consequences arising from the new situation of conflict created. Such
consequences such as action by the Security Council pursuant to Chapter VII arise from the situation and
not from the agreement, nor from the obligation imposed by it. Such action cannot be regarded as a
remedy for the breach. A peace agreement which settles an internal armed conflict cannot be ascribed
the same status as one which settles an international armed conflict which, essentially, must be
between two or more warring States. The Lomé Agreement cannot be characterised as an
international instrument. x x x" (Emphasis, italics and underscoring supplied)

Similarly, that the MOA-AD would have been signed by representatives of States and international
organizations not parties to the Agreement would not have sufficed to vest in it a binding character
under international law.

In another vein, concern has been raised that the MOA-AD would amount to a unilateral declaration of
the Philippine State, binding under international law, that it would comply with all the stipulations
stated therein, with the result that it would have to amend its Constitution accordingly regardless of the
true will of the people. Cited as authority for this view is Australia v. France,181 also known as the Nuclear
Tests Case, decided by the International Court of Justice (ICJ).

In the Nuclear Tests Case, Australia challenged before the ICJ the legality of France's nuclear tests in the
South Pacific. France refused to appear in the case, but public statements from its President, and similar
statements from other French officials including its Minister of Defence, that its 1974 series of
atmospheric tests would be its last, persuaded the ICJ to dismiss the case. 182 Those statements, the ICJ
held, amounted to a legal undertaking addressed to the international community, which required no
acceptance from other States for it to become effective.

Essential to the ICJ ruling is its finding that the French government  intended to be bound to the
international community in issuing its public statements, viz:

43. It is well recognized that declarations made by way of unilateral acts, concerning legal or factual
situations, may have the effect of creating legal obligations. Declarations of this kind may be, and often
are, very specific. When it is the intention of the State making the declaration that it should become
bound according to its terms, that intention confers on the declaration the character of a legal
undertaking, the State being thenceforth legally required to follow a course of conduct consistent
with the declaration. An undertaking of this kind, if given publicly, and with an intent to be bound, even
though not made within the context of international negotiations, is binding. In these circumstances,
nothing in the nature of a quid pro quo nor any subsequent acceptance of the declaration, nor even any
reply or reaction from other States, is required for the declaration to take effect, since such a
requirement would be inconsistent with the strictly unilateral nature of the juridical act by which the
pronouncement by the State was made.

44. Of course, not all unilateral acts imply obligation; but a State may choose to take up a certain
position in relation to a particular matter with the intention of being bound-the intention is to be
ascertained by interpretation of the act. When States make statements by which their freedom of
action is to be limited, a restrictive interpretation is called for.

xxxx

51. In announcing that the 1974 series of atmospheric tests would be the last, the French Government
conveyed to the world at large, including the Applicant, its intention effectively to terminate these
tests. It was bound to assume that other States might take note of these statements and rely on their
being effective. The validity of these statements and their legal consequences must be considered
within the general framework of the security of international intercourse, and the confidence and trust
which are so essential in the relations among States. It is from the actual substance of these
statements, and from the circumstances attending their making, that the legal implications of the
unilateral act must be deduced. The objects of these statements are clear and they were addressed to
the international community as a whole, and the Court holds that they constitute an undertaking
possessing legal effect. The Court considers *270 that the President of the Republic, in deciding upon
the effective cessation of atmospheric tests, gave an undertaking to the international community to
which his words were addressed. x x x (Emphasis and underscoring supplied)

As gathered from the above-quoted ruling of the ICJ, public statements of a state representative may be
construed as a unilateral declaration only when the following conditions are present: the statements
were clearly addressed to the international community, the state intended to be bound to that
community by its statements, and that not to give legal effect to those statements would be detrimental
to the security of international intercourse. Plainly, unilateral declarations arise only in peculiar
circumstances.

The limited applicability of the Nuclear Tests Case ruling was recognized in a later case decided by the
ICJ entitledBurkina Faso v. Mali,183 also known as the Case Concerning the Frontier Dispute. The public
declaration subject of that case was a statement made by the President of Mali, in an interview by a
foreign press agency, that Mali would abide by the decision to be issued by a commission of the
Organization of African Unity on a frontier dispute then pending between Mali and Burkina Faso.
Unlike in the Nuclear Tests Case, the ICJ held that the statement of Mali's President was not a unilateral
act with legal implications. It clarified that its ruling in the Nuclear Tests case rested on the peculiar
circumstances surrounding the French declaration subject thereof, to wit:

40. In order to assess the intentions of the author of a unilateral act, account must be taken of all the
factual circumstances in which the act occurred. For example, in the Nuclear Tests cases, the Court took
the view that since the applicant States were not the only ones concerned at the possible continuance
of atmospheric testing by the French Government, that Government's unilateral declarations had
‘conveyed to the world at large, including the Applicant, its intention effectively to terminate these
tests‘ (I.C.J. Reports 1974, p. 269, para. 51; p. 474, para. 53). In the particular circumstances of those
cases, the French Government could not express an intention to be bound otherwise than by
unilateral declarations. It is difficult to see how it could have accepted the terms of a negotiated
solution with each of the applicants without thereby jeopardizing its contention that its conduct was
lawful. The circumstances of the present case are radically different. Here, there was nothing to
hinder the Parties from manifesting an intention to accept the binding character of the conclusions of
the Organization of African Unity Mediation Commission by the normal method: a formal agreement
on the basis of reciprocity. Since no agreement of this kind was concluded between the Parties, the
Chamber finds that there are no grounds to interpret the declaration made by Mali's head of State on 11
April 1975 as a unilateral act with legal implications in regard to the present case. (Emphasis and
underscoring supplied)

Assessing the MOA-AD in light of the above criteria, it would not have amounted to a unilateral
declaration on the part of the Philippine State to the international community. The Philippine panel did
not draft the same with the clear intention of being bound thereby to the international community as a
whole or to any State, but only to the MILF. While there were States and international organizations
involved, one way or another, in the negotiation and projected signing of the MOA-AD, they participated
merely as witnesses or, in the case of Malaysia, as facilitator. As held in the Lomé Accord case, the mere
fact that in addition to the parties to the conflict, the peace settlement is signed by representatives of
states and international organizations does not mean that the agreement is internationalized so as to
create obligations in international law.

Since the commitments in the MOA-AD were not addressed to States, not to give legal effect to such
commitments would not be detrimental to the security of international intercourse - to the trust and
confidence essential in the relations among States.

In one important respect, the circumstances surrounding the MOA-AD are closer to that of  Burkina
Faso wherein, as already discussed, the Mali President's statement was not held to be a binding
unilateral declaration by the ICJ. As in that case, there was also nothing to hinder the Philippine panel,
had it really been its intention to be bound to other States, to manifest that intention by formal
agreement. Here, that formal agreement would have come about by the inclusion in the MOA-AD of a
clear commitment to be legally bound to the international community, not just the MILF, and by an
equally clear indication that the signatures of the participating states-representatives would constitute
an acceptance of that commitment. Entering into such a formal agreement would not have resulted in a
loss of face for the Philippine government before the international community, which was one of the
difficulties that prevented the French Government from entering into a formal agreement with other
countries. That the Philippine panel did not enter into such a formal agreement suggests that it had no
intention to be bound to the international community. On that ground, the MOA-AD may not
be considered a unilateral declaration under international law .

The MOA-AD not being a document that can bind the Philippines under international law
notwithstanding, respondents' almost consummated act of guaranteeing amendments to the legal
framework is, by itself, sufficient to constitute grave abuse of discretion. The grave abuse lies not in
the fact that they considered, as a solution to the Moro Problem, the creation of a state within a state,
but in their brazen willingness to guarantee that Congress and the sovereign Filipino people would
give their imprimatur to their solution. Upholding such an act would amount to authorizing a
usurpation of the constituent powers vested only in Congress, a Constitutional Convention, or the
people themselves through the process of initiative, for the only way that the Executive can ensure the
outcome of the amendment process is through an undue influence or interference with that process.

The sovereign people may, if it so desired, go to the extent of giving up a portion of its own territory to
the Moros for the sake of peace, for it can change the Constitution in any it wants, so long as the change
is not inconsistent with what, in international law, is known as Jus Cogens.184 Respondents, however,
may not preempt it in that decision.

SUMMARY

The petitions are ripe for adjudication. The failure of respondents to consult the local government units
or communities affected constitutes a departure by respondents from their mandate under E.O. No. 3.
Moreover, respondents exceeded their authority by the mere act of guaranteeing amendments to the
Constitution. Any alleged violation of the Constitution by any branch of government is a proper matter
for judicial review.

As the petitions involve constitutional issues which are of paramount public interest or of
transcendental importance, the Court grants the petitioners, petitioners-in-intervention and intervening
respondents the requisitelocus standi in keeping with the liberal stance adopted in David v. Macapagal-
Arroyo.

Contrary to the assertion of respondents that the non-signing of the MOA-AD and the eventual
dissolution of the GRP Peace Panel mooted the present petitions, the Court finds that the present
petitions provide an exception to the "moot and academic" principle in view of (a) the grave violation of
the Constitution involved; (b) the exceptional character of the situation and paramount public interest;
(c) the need to formulate controlling principles to guide the bench, the bar, and the public; and (d) the
fact that the case is capable of repetition yet evading review.

The MOA-AD is a significant part of a series of agreements necessary to carry out the GRP-MILF Tripoli
Agreement on Peace signed by the government and the MILF back in June 2001. Hence, the present
MOA-AD can be renegotiated or another one drawn up that could contain similar or significantly
dissimilar provisions compared to the original.

The Court, however, finds that the prayers for mandamus have been rendered moot in view of the
respondents' action in providing the Court and the petitioners with the official copy of the final draft of
the MOA-AD and its annexes.

The people's right to information on matters of public concern under Sec. 7, Article III of the Constitution
is insplendid symmetry with the state policy of full public disclosure of all its transactions involving public
interest under Sec. 28, Article II of the Constitution. The right to information guarantees the right of the
people to demand information, while Section 28 recognizes the duty of officialdom to give information
even if nobody demands. The complete and effective exercise of the right to information necessitates
that its complementary provision on public disclosure derive the same self-executory nature, subject
only to reasonable safeguards or limitations as may be provided by law.

The contents of the MOA-AD is a matter of paramount public concern involving public interest in the
highest order. In declaring that the right to information contemplates steps and negotiations leading to
the consummation of the contract, jurisprudence finds no distinction as to the executory nature or
commercial character of the agreement.

An essential element of these twin freedoms is to keep a continuing dialogue or process of

communication between the government and the people. Corollary to these twin rights is the design for
feedback mechanisms. The right to public consultation was envisioned to be a species of these public
rights.

At least three pertinent laws animate these constitutional imperatives and justify the exercise of the
people's right to be consulted on relevant matters relating to the peace agenda.

One, E.O. No. 3 itself is replete with mechanics for continuing consultations on both national and local
levels and for a principal forum for consensus-building. In fact, it is the duty of the Presidential Adviser
on the Peace Process to conduct regular dialogues to seek relevant information, comments, advice, and
recommendations from peace partners and concerned sectors of society.

Two, Republic Act No. 7160 or the Local Government Code of 1991 requires all national offices to
conduct consultations before any project or program critical to the environment and human ecology
including those that may call for the eviction of a particular group of people residing in such locality, is
implemented therein. The MOA-AD is one peculiar program that unequivocally and unilaterally vests
ownership of a vast territory to the Bangsamoro people, which could pervasively and drastically result to
the diaspora or displacement of a great number of inhabitants from their total environment.

Three, Republic Act No. 8371 or the Indigenous Peoples Rights Act of 1997 provides for clear-cut
procedure for the recognition and delineation of ancestral domain, which entails, among other things,
the observance of the free and prior informed consent of the Indigenous Cultural
Communities/Indigenous Peoples. Notably, the statute does not grant the Executive Department or any
government agency the power to delineate and recognize an ancestral domain claim by mere agreement
or compromise.

The invocation of the doctrine of executive privilege as a defense to the general right to information or
the specific right to consultation is untenable. The various explicit legal provisions fly in the face of
executive secrecy. In any event, respondents effectively waived such defense after it unconditionally
disclosed the official copies of the final draft of the MOA-AD, for judicial compliance and public scrutiny.

In sum, the Presidential Adviser on the Peace Process committed grave abuse of discretion when he
failed to carry out the pertinent consultation process, as mandated by E.O. No. 3, Republic Act No. 7160,
and Republic Act No. 8371. The furtive process by which the MOA-AD was designed and crafted runs
contrary to and in excess of the legal authority, and amounts to a whimsical, capricious, oppressive,
arbitrary and despotic exercise thereof. It illustrates a gross evasion of positive duty and a virtual refusal
to perform the duty enjoined.

The MOA-AD cannot be reconciled with the present Constitution and laws. Not only its specific
provisions but the very concept underlying them, namely, the associative relationship envisioned
between the GRP and the BJE, areunconstitutional, for the concept presupposes that the associated
entity is a state and implies that the same is on its way to independence.

While there is a clause in the MOA-AD stating that the provisions thereof inconsistent with the present
legal framework will not be effective until that framework is amended, the same does not cure its
defect. The inclusion of provisions in the MOA-AD establishing an associative relationship between the
BJE and the Central Government is, itself, a violation of the Memorandum of Instructions From The
President dated March 1, 2001, addressed to the government peace panel. Moreover, as the clause is
worded, it virtually guarantees that the necessary amendments to the Constitution and the laws will
eventually be put in place. Neither the GRP Peace Panel nor the President herself is authorized to make
such a guarantee. Upholding such an act would amount to authorizing a usurpation of the constituent
powers vested only in Congress, a Constitutional Convention, or the people themselves through the
process of initiative, for the only way that the Executive can ensure the outcome of the amendment
process is through an undue influence or interference with that process.

While the MOA-AD would not amount to an international agreement or unilateral declaration binding
on the Philippines under international law, respondents' act of guaranteeing amendments is, by itself,
already a constitutional violation that renders the MOA-AD fatally defective.

WHEREFORE, respondents' motion to dismiss is DENIED. The main and intervening petitions are GIVEN
DUE COURSE and hereby GRANTED.

The Memorandum of Agreement on the Ancestral Domain Aspect of the GRP-MILF Tripoli Agreement on
Peace of 2001 is declared contrary to law and the Constitution.

SO ORDERED.